Good Shepherd Foundation Exemption from Legal Fees

2009-ENBANC DECISIONS
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
RE: QUERY OF MR. ROGER C. A. M. No. 09-6-9-SC

PRIORESCHI RE EXEMPTION
FROM LEGAL AND FILING FEES Present:
OF THE GOOD SHEPHERD
FOUNDATION, INC. PUNO, CJ,
QUISUMBING*,
YNARES-SANTIAGO*,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO**, and
ABAD**,
JJ.
Promulgated:
August 19, 2009
x-----------------------------------------------------------------------------------------x
* On official leave.
** Took no part in the deliberation.
** Took no part in the deliberation.

RESOLUTION
BERSAMIN, J.:
In his letter dated May 22, 2009 addressed to the Chief Justice, Mr. Roger C. Prioreschi,
administrator of the Good Shepherd Foundation, Inc., wrote:
The Good Shepherd Foundation, Inc. is very grateful for your 1rst.
Indorsement to pay a nominal fee of Php 5,000.00 and the balance upon the
collection action of 10 million pesos, thus giving us access to the Justice System
previously denied by an up-front excessive court fee.
The Hon. Court Administrator Jose Perez pointed out to the need of
complying with OCA Circular No. 42-2005 and Rule 141 that reserves this
privilege to indigent persons. While judges are appointed to interpret the law, this
type of law seems to be extremely detailed with requirements that do not leave
much room for interpretations.
In addition, this law deals mainly with individual indigent and it does not
include Foundations or Associations that work with and for the most Indigent
persons. As seen in our Article of Incorporation, since 1985 the Good Shepherd
Foundation, Inc. reached-out to the poorest among the poor, to the newly born and
abandoned babies, to children who never saw the smile of their mother, to old
people who cannot afford a few pesos to pay for common prescriptions, to broken
families who returned to a normal life. In other words, we have been working hard
for the very Filipino people, that the Government and the society cannot reach to,
or have rejected or abandoned them.
Can the Courts grant to our Foundation who works for indigent and
underprivileged people, the same option granted to indigent people?
The two Executive Judges, that we have approached, fear accusations of

favoritism or other kind of attack if they approve something which is not clearly
and specifically stated in the law or approved by your HONOR.
Can your Honor help us once more?
Grateful for your understanding, God bless you and your undertakings.
We shall be privileged if you find time to visit our orphanage the Home of
Love and the Spiritual Retreat Center in Antipolo City.
To answer the query of Mr. Prioreschi, the Courts cannot grant to foundations like the Good
Shepherd Foundation, Inc. the same exemption from payment of legal fees granted to indigent
litigants even if the foundations are working for indigent and underprivileged people.
The basis for the exemption from legal and filing fees is the free access clause, embodied
in Sec. 11, Art. III of the 1987 Constitution, thus:
Sec. 11. Free access to the courts and quasi judicial bodies and adequate legal
assistance shall not be denied to any person by reason of poverty.
The importance of the right to free access to the courts and quasi judicial bodies and to
adequate legal assistance cannot be denied. A move to remove the provision on free access from
the Constitution on the ground that it was already covered by the equal protection clause was
defeated by the desire to give constitutional stature to such specific protection of the poor.1[1]
In implementation of the right of free access under the Constitution, the Supreme Court
promulgated rules, specifically, Sec. 21, Rule 3, Rules of Court,2[2] and Sec. 19, Rule 141, Rules
of Court,3[3] which respectively state thus:
Sec. 21. Indigent party. A party may be authorized to litigate his action, claim
or defense as an indigent if the court, upon an ex parte application and hearing, is
satisfied that the party is one who has no money or property sufficient and available
for food, shelter and basic necessities for himself and his family.
Such authority shall include an exemption from payment of docket and other
lawful fees, and of transcripts of stenographic notes which the court may order to
be furnished him. The amount of the docket and other lawful fees which the
indigent was exempted from paying shall be a lien on any judgment rendered in the
case favorable to the indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such authority at any time before
judgment is rendered by the trial court. If the court should determine after hearing
that the party declared as an indigent is in fact a person with sufficient income or
property, the proper docket and other lawful fees shall be assessed and collected by
the clerk of court. If payment is not made within the time fixed by the court,
execution shall issue for the payment thereof, without prejudice to such other
sanctions as the court may impose. (22a)
1[1] Bernas, 1987 Philippine Constitution of the Republic of the Philippines: A Commentary, 1996 Ed.,
p. 4064, citing the Journal of the 1935 Constitutional Convention 1275-1277.
2[2] 1997 Rules of Civil Procedure.
3[3] As revised, effective August 16, 2004.

Sec. 19. Indigent litigants exempt from payment of legal fees. Indigent
litigants (a) whose gross income and that of their immediate family do not exceed
an amount double the monthly minimum wage of an employee and (b) who do not
own real property with a fair market value as stated in the current tax declaration
of more than three hundred thousand (P300,000.00) pesos shall be exempt from
payment of legal fees.
The legal fees shall be a lien on any judgment rendered in the case favorable
to the indigent litigant unless the court otherwise provides.
To be entitled to the exemption herein provided, the litigant shall execute an

affidavit that he and his immediate family do not earn a gross income
abovementioned, and they do not own any real property with the fair value
aforementioned, supported by an affidavit of a disinterested person attesting to the
truth of the litigants affidavit. The current tax declaration, if any, shall be attached
to the litigants affidavit.
Any falsity in the affidavit of litigant or disinterested person shall be sufficient

cause to dismiss the complaint or action or to strike out the pleading of that party,
without prejudice to whatever criminal liability may have been incurred.
The clear intent and precise language of the aforequoted provisions of the Rules of Court
indicate that only a natural party litigant may be regarded as an indigent litigant. The Good
Shepherd Foundation, Inc., being a corporation invested by the State with a juridical personality
separate and distinct from that of its members,4[4] is a juridical person. Among others, it has the
power to acquire and possess property of all kinds as well as incur obligations and bring civil or
criminal actions, in conformity with the laws and regulations of their organization.5[5] As a
juridical person, therefore, it cannot be accorded the exemption from legal and filing fees granted
to indigent litigants.
4[4] The Civil Code provides:
Art. 44 The following are juridical persons:
1) The State and its political subdivisions;
2) Other corporations, institutions and entities for public interest or purpose, created by law; their
personality begins as soon as they have been constituted according to law;
3) Corporations, partnerships and associations for private interest or purpose to which the law
grants a juridical personality, separate and distinct from that of each shareholder, partner
or member.
5[5] Art. 46, Civil Code.

That the Good Shepherd Foundation, Inc. is working for indigent and underprivileged
people is of no moment. Clearly, the Constitution has explicitly premised the free access clause
on a persons poverty, a condition that only a natural person can suffer.
There are other reasons that warrant the rejection of the request for exemption in favor of
a juridical person. For one, extending the exemption to a juridical person on the ground that it
works for indigent and underprivileged people may be prone to abuse (even with the imposition
of rigid documentation requirements), particularly by corporations and entities bent on
circumventing the rule on payment of the fees. Also, the scrutiny of compliance with the
documentation requirements may prove too time-consuming and wasteful for the courts.
IN VIEW OF THE FOREGOING, the Good Shepherd Foundation, Inc. cannot be

extended the exemption from legal and filing fees despite its working for indigent and
underprivileged people.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
(On official leave) (On official leave)

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice
ANTONIO T. CARPIO RENATO C. CORONA

CONCHITA CARPIO MORALES MINITA V. CHICO-NAZARIO
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

(No Part)
DIOSDADO M. PERALTA MARIANO C. DEL CASTILLO
(No Part)
ROBERTO A. ABAD
Associate Justice
SUPREME COURT
Manila
EN BANC
G.R. No. 183366 August 19, 2009
RICARDO C. DUCO, Petitioner,

vs.
COMMISSION ON ELECTIONS, FIRST DIVISION; AND NARCISO B. AVELINO,
Respondents.
DECISION
BERSAMIN, J.:
By its April 30, 2008 order issued in EAC (BRGY.) No. 107-2008, the Commission on Elections
(COMELEC), through its First Division,1 dismissed the petitioner’s appeal from the decision
dated January 7, 2008 of the Municipal Circuit Trial Court of Loay-Albuquerque-Baclayon
(MCTC), Branch 13, stationed in Loay, Bohol,2 due to his failure to perfect his appeal and due to
the non-payment of the correct amount of appeal fee as prescribed by the COMELEC Rules of
Procedure. Likewise, the COMELEC, First Division, denied his motion for reconsideration on
May 22, 20083 because he did not pay the motion fees prescribed on his motion for
reconsideration.
He now assails the dismissal of the appeal and the denial of the motion for reconsideration,
averring that the COMELEC committed grave abuse of discretion amounting to lack or excess of
jurisdiction by strictly applying its Rules of Procedure.
antecedents
On October 29, 2007, simultaneous barangay and sangguniang kabataan (SK) elections were
held all over the country. In Barangay Ibabao, Loay, Bohol, the petitioner was proclaimed as the
elected Punong Barangay. His opponent, respondent Narciso Avelino, initiated an election
protest in the Municipal Circuit Trial Court (MCTC), seeking a recount of the ballots in four
precincts upon his allegation that the election results for the position of Punong Barangay were
spurious and fraudulent and did not reflect the true will of the electorate.
The MCTC ultimately ruled in favor of respondent Avelino,4 to wit:
WHEREFORE, the Court grants this petition finding petitioner NARCISO B. AVELINO to be
the duly elected Punong Barangay of Barangay Poblacion, Ibabao, Loay, Bohol with a total of
325 votes against protestee RICARDO C. DUCO with a total of 321 votes, or a winning margin
of four (4) votes.
Protestee is therefore restrained from assuming the post of Punong Barangay of Barangay
Ibabao, Loay, Bohol and from performing the functions of such office.
The counterclaim of protestee RICARDO C. DUCO is hereby ordered DISMISSED in view of

the foregoing findings.
SO ORDERED.
Duco filed his notice of appeal on January 25, 20085 and paid as appeal fees the amounts of
P820.00 under Official Receipt (OR) No. 3879928; P530.00 under OR No. 8054003; and P50.00
under OR No. 0207223.6
On April 30, 2008, however, the COMELEC dismissed Duco’s appeal,7 holding:
Pursuant to Section 3, Rule 40 of the COMELEC Rules of Procedure which mandates the
payment of appeal fee in the amount of P/3,000.00 and Section 9 (a), Rule 22 of the same Rules
which provides that failure to pay the correct appeal fee is a ground for the dismissal of the
appeal, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the
instant case for Protestee-Appellant’s failure to perfect his appeal within five (5) days from
receipt of the assailed decision sought to be appealed due to non-payment of the appeal fee as
prescribed under the Comelec Rules of Procedure.
SO ORDERED.
Duco moved for reconsideration, but the COMELEC denied his motion on May 22, 2008,8
stating:
Protestee-Appellant’s "Verified Motion for Reconsideration" filed thru mail on 12 May 2008
seeking reconsideration of the Commission’s (First Division) Order dated 30 April 2008 is
hereby DENIED for failure of the movant to pay the necessary motion fees under Sec. 7 (f), Rule
40 of the Comelec Rules of Procedure as amended by Comelec Resolution No. 02-0130 and for
failure to specify that the evidence is insufficient to justify the assailed Order or that the same is
contrary to law.
ACCORDINGLY, this Commission (First Division) RESOLVES to DIRECT the Judicial

Records Division-ECAD, this Commission, to return to the protestee-appellant the two (2) Postal
Money Orders representing belated appeal fees attached to his verified motion for
reconsideration in the amounts of Two Thousand Pesos (P2,000.00) and One Thousand Pesos
(P1,000.00), respectively.
SO ORDERED.
ISSUES
Undaunted, the petitioner comes to us on certiorari, contending that:

PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN STRICTLY APPLYING THE COMELEC
RULES OF PROCEDURE, AS AMENDED;
PUBLIC RESPONDENT AGAIN COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION TO STRICTLY APPLY
COMELEC RESOLUTION NO, 02-0130 DATED 18 SEPTEMBER 2002 WHEN THERE IS
NO SHOWING ON THE PART OF THE PUBLIC RESPONDENT THAT ITEM # 3 OF THE
SAME WAS COMPLIED WITH.
We have to determine whether or not the COMELEC gravely abused its discretion amounting to
lack or excess of jurisdiction in dismissing Duco’s appeal and in denying his motion for
reconsideration.
RULING OF THE COURT
Before delving on the contentions of the petition, we cannot but point out that the assailed
resolution dated May 22, 2008 was issued by the First Division when the resolution should have
instead been made by the COMELEC en banc due to the matter thereby resolved being the
petitioner’s motion for reconsideration. The action of the First Division was patently contrary to
Sec. 3, Article IX-C of the Constitution, which provides:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate
its rules of procedure in order to expedite disposition of election cases, including pre-
proclamation controversies. All such election cases shall be heard and decided in division,
provided that motions for reconsideration of decisions shall be decided by the Commission en
banc.
In this connection, Sections 5 and 6, Rule 19 of the COMELEC Rules of Procedure, outline the
correct steps to be taken in the event motions for reconsideration are filed, to wit:
Sec. 5. How Motion for Reconsideration Disposed Of.—Upon the filing of a motion to
reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned
shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner.
The latter shall within two (2) days thereafter certify the case to the Commission en banc.
Sec. 6. Duty of Clerk of Court of Commission to Calendar Motion for Reconsideration.—The

Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the
Commission en banc within ten (10) days from the certification thereof.
The outlined steps were obviously not followed. There is no showing that the clerk of court of
the First Division notified the Presiding Commissioner of the motion for reconsideration within
24 hours from its filing; or that the Presiding Commissioner certified the case to the COMELEC
en banc; or that the clerk of court of the COMELEC en banc calendared the motion for
reconsideration within 10 days from its certification.
Lest it be supposed that the Court overlooks the violation of the Constitution, we set aside the
second assailed resolution (dated May 22, 2008) for being contrary to the Constitution and in
disregard of the COMELEC Rules of Procedure. For sure, the First Division could not issue the
resolution because the Constitution has lodged the authority to do so in the COMELEC en banc.
II
Nonetheless, we do not remand the motion for reconsideration to the COMELEC en banc for its
proper resolution. As we have done in Aguilar v. COMELEC,9 we are going to resolve herein the
propriety of the dismissal of the appeal "considering the urgent need for the resolution of election
cases, and considering that the issue has, after all, been raised in this petition."
Under the COMELEC Rules of Procedure, the notice of appeal must be filed within five days
after the promulgation of the decision.10 In filing the appeal, the appellant is required to pay the
appeal fees imposed by Sec. 3, Rule 40,11 as amended by COMELEC Resolution No. 02-0130,12
namely: (1) the amount of P3,000.00 as appeal fee; (2) the amount of P50.00 as legal research
fee; and (3) the amount of P150.00 as bailiff’s fee. Pursuant to Sec. 4, Rule 40, of the
COMELEC Rules of Procedure, the fees "shall be paid to, and deposited with, the Cash Division
of the Commission within the period to file the notice of appeal."
The petitioner timely filed his notice of appeal on January 25, 2008, that is, within five days after
the promulgation of the MCTC decision on January 22, 2008. On the same day, he paid
P1,400.00 as appeal fee to the Clerk of Court of the MCTC. His payment was, however, short by
P1,800.00, based on Sec. 3, Rule 40 of the COMELEC Rules of Procedure, as amended by
Resolution No. 02-0130. Moreover, he paid the appeal fee to the MCTC cashier, contrary to the
mandate of Sec. 4, Rule 40 of the COMELEC Rules of Procedure that the payment be made to
the Cash Division of the COMELEC.
The petition for certiorari lacks merit.
The dismissal of the appeal was in accordance with Sec. 9 (a), Rule 22 of the COMELEC Rules
of Procedure, which pertinently states:
Sec. 9. Grounds for Dismissal of Appeal.- The appeal may be dismissed upon motion of either
party or at the instance of the Commission on any of the following grounds:
(a) Failure of the appellant to pay the correct appeal fee;
xxx
The payment of the deficiency beyond the five-day reglementary period did not cure the defect,
because the date of the payment of the appeal fee is deemed the actual date of the filing of the
notice of appeal.13 Accordingly, his appeal, filed already beyond the five-day reglementary
period, rendered the decision of the MCTC final and immutable.
Still, the petitioner contends that the COMELEC should have liberally applied its procedural
rules in order not to override substantial justice. He claims that he honestly believed in good faith
that his appeal fees were sufficient. He alleges that he paid the appeal fees required under A.M.
No. 07-4-15-SC, which took effect May 15, 2007, per the certification dated May 19, 2008 of the
Clerk of Court II of the MCTC. He submits that the COMELEC should have accepted the postal
money order for P3,000.00 remitted with the motion for reconsideration and given him ample
time to come up with any deficiency which he was more than willing to pay.
We cannot heed the petitioner’s plea.
In Loyola v. COMELEC,14 we emphatically announced that we would bar "any claim of good
faith, excusable negligence or mistake in any failure to pay the full amount of filing fees in
election cases which may be filed after the promulgation of this decision."15
Loyola has been reiterated in Miranda v. Castillo,16 Soller v. Commission on Elections,17 and
Villota v. Commission on Elections,18 with the Court repeating the warning that any error or
deficit in the payment of filing fees in election cases was no longer excusable.
In Zamoras v. Court of Appeals,19 the petitioner therein timely filed his notice of appeal on
December 2, 2004 but paid only P600.00 as appeal fee. On January 17, 2003, the COMELEC’s
Judicial Records Division directed him to remit the deficiency amount of P2,600.00, which he
paid by postal money order on January 28, 2003, allegedly the date on which he received the
notice dated January 17, 2003. Nonetheless, the COMELEC issued an order on March 10, 2003
dismissing his appeal for failure to perfect it within the 5-day reglementary period (under Sec. 3
and Sec. 9 (d), Rule 22 of the COMELEC Rules of Procedure) after it was determined that he
had received the decision of the trial court on November 29, 2002 but had appealed only on
December 9, 2002, or 10 days from his receipt of the decision. He filed a motion for
reconsideration by registered mail on March 21, 2003, but did not pay the necessary motion fees
required under Sec. 7 (f), Rule 40 of the COMELEC Rules of Procedure. He later on filed
another motion for reconsideration on May 16, 2003, also by registered mail, remitting the
required fees by postal money order, but the COMELEC still rejected the motion for
reconsideration due to the finality of the orders earlier issued. When the COMELEC’s actions
were challenged, the Court held:
xxx
The subsequent payment of the filing fee on 28 January 2003 did not relieve Zamoras of his
mistake. A case is not deemed duly registered and docketed until full payment of the filing fee.
Otherwise stated, the date of the payment of the filing fee is deemed the actual date of the filing
of the notice of appeal. The subsequent full payment of the filing fee on 28 January 2003 did not
cure the jurisdictional defect. The date of payment on 28 January 2003 is the actual date of filing
the appeal which is almost two (2) months after Zamoras received the MTCC Decision on 29
November 2002, This is way beyond the 5-day reglementary period to file an appeal. 20
xxx
Zamoras in not only chargeable with the incomplete payment of the appeal fees but he also failed
to remit the required filing fees for his motion for reconsideration. The payment of the filing fee
is a jurisdictional requirement and non-compliance is a valid basis for the dismissal of the case.
The subsequent full payment of the filing fee after the lapse of the reglementary period does not
cure the jurisdictional defect. Such procedural lapse by Zamoras warrants the outright dismissal
of his appeal. This left the COMELEC with no choice except to declare the Orders final and
executory. 21
xxx
At any rate, the plea for a liberal application of technical rules of procedure to promote the ends
of justice is undeserving of any sympathy from us. Time and again, we have ruled that the
payment of the full amount of docket fee within the period to appeal is a sine qua non
requirement for the perfection of an appeal.22 Such payment is not a mere technicality of law or
procedure, but an essential requirement, without which the decision or final order appealed from
becomes final and executory, as if no appeal was filed. 23 Moreover, as we observed in Lazaro v.
Court of Appeals: 24
xxx the bare invocation of "interest of substantial justice" is not a magic wand that will
automatically compel this Court to suspend procedural rules. Procedural rules are not to be
belittled or dismissed simply because their non-observance may have resulted in prejudice to a
party’s substantive rights. Like all rules, they are required to be followed except only for the
most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not
commensurate with the degree of his thoughtlessness in not complying with the procedure
prescribed. The Court reiterates that rules of procedure especially those prescribing the time
within which certain acts must be done, have oft been held as absolutely indispensable to the
prevention of needless delays and to the orderly and speedy discharge of business. xxx
The petitioner ought to be reminded that appeal is not a right but a mere statutory privilege that
must be exercised strictly in accordance with the provisions set by law.25
Lastly, the petitioner’s claim that the MCTC was not furnished a copy of Resolution No. 02-
0130 lacks substance. The resolution was not unknown to the MCTC and to his counsel, because
it had already been issued on September 18, 2002. His counsel cannot feign ignorance of the
resolution for, as a lawyer, he had the duty to keep himself abreast of legal developments and
prevailing or pertinent laws, rules and legal principles.
Having determined that the petitioner’s appeal was properly dismissed, the COMELEC did not
commit any grave abuse of discretion amounting to lack or excess of jurisdiction. In a special
civil action for certiorari, the petitioner carries the burden of proving not merely reversible error,
but grave abuse of discretion amounting to lack or excess of jurisdiction, on the part of the public
respondent for his issuance of the impugned order.26 Grave abuse of discretion is present "when
there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction,
such as where the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty
or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." 27 In
other words, the tribunal or administrative body must have issued the assailed decision, order or
resolution in a capricious or despotic manner.28 Alas, the petitioner did not discharge his burden.
III
We consider it timely to note, before closing, that on July 15, 2008, after the second assailed
resolution was issued on May 22, 2008, the COMELEC promulgated its Resolution No. 8486, 29
effective on July 24, 2008,30 ostensibly to clarify the requirement of two appeal fees being
separately imposed by different jurisdictions, that is, by the Supreme Court, through A.M. No.
07-4-15-SC, 31 and by the COMELEC, through its own Rules of Procedure, as amended by
Resolution No. 02-0130. For the first, the appeal fees are paid to the clerk of court of the trial
court; while, for the latter, the appeal fees are paid to the clerk of court of the
COMELEC.1avvphi1
Considering the decisive significance of the perfection of an appeal within the brief span of 5
days from notice of the decision of the trial court, the party aggrieved by the trial court’s decision
should be instructed that he needs to pay both appeal fees within such period under the existing
rules of the Supreme Court and the COMELEC, or else his appeal risks dismissal.
Verily, in Aguilar v. COMELEC,32 the Court has discerned the impact of Resolution No. 8486
on A.M. No. 07-4-15-SC by observing:
[Resolution No. 8486] is consistent with A.M. No. 07-4-15-SC and the COMELEC Rules of
Procedure, as amended. The appeal to the COMELEC of the trial court’s decision in election
contests involving municipal and barangay officials is perfected upon the filing of the notice of
appeal and the payment of the P1,000.00 appeal fee to the court that rendered the decision within
the five-day reglementary period. The non-payment or the insufficient payment of the additional
appeal fee of P3,200.00 to the COMELEC Cash Division, in accordance with Rule 40, Section 3
of the COMELEC Rules of Procedure, as amended, does not affect the perfection of the appeal
and does not result in outright or ipso facto dismissal of the appeal.ten.lihpwal Following, Rule
22, Section 9(a) of the COMELEC Rules, the appeal may be dismissed. And pursuant to Rule 40,
Section 18 of the same rules, if the fees are not paid, the COMELEC may refuse to take action
thereon until they are paid and may dismiss the action or the proceeding. In such a situation, the
COMELEC is merely given the discretion to dismiss the appeal or not.
Thus, recently, in Divinagracia, Jr. v. COMELEC, 33 the Court has issued the following dictum
for the guidance of the Bench and Bar:
In Aguilar, the Court recognized the Comelec’s discretion to allow or dismiss a "perfected"
appeal that lacks payment of the Comelec-prescribed appeal fee. The Court stated that it was
more in keeping with fairness and prudence to allow the appeal which was, similar to the present
case, perfected months before the issuance of Comelec Resolution No. 8486.
Aguilar has not, however, diluted the force of Comelec Resolution No. 8486 on the matter of
compliance with the Comelec-required appeal fees. To reiterate, Resolution No. 8486 merely
clarified the rules on Comelec appeal fees which have been existing as early as 1993, the amount
of which was last fixed in 2002. The Comelec even went one step backward and extended the
period of payment to 15 days from the filing of the notice of appeal.
Considering that a year has elapsed after the issuance on July 15, 2008 of Comelec Resolution
No. 8486, and to further affirm the discretion granted to the Comelec which it precisely
articulated through the specific guidelines contained in said Resolution, the Court now declares,
for the guidance of the Bench and Bar, that for notices of appeal filed after the promulgation of
this decision, errors in the matter of non-payment or incomplete payment of the two appeal fees
in election cases are no longer excusable.34
The foregoing dictum forecloses the petitioner’s plea for judicial understanding.
ACCORDINGLY, WE dismiss the petition for certiorari for lack of merit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
(On official leave) (On official leave)

LEONARDO A. QUISUMBING* CONSUELO YNARES-SANTIAGO*


ANTONIO EDUARDO B.
PRESBITERO J. VELASCO, JR.
NACHURA
Associate Justice
Associate Justice
TERESITA J. LEONARDO-DE
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice
(No Part)
MARIANO C. DEL CASTILLO
DIOSDADO M. PERALTA**
Associate Justice
Associate Justice
(No Part)
ROBERTO A. ABAD**
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions
in the above Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Footnotes
*
On official leave.
*
On official leave.
**
Took no part in the deliberation.
**
Took no part in the deliberation.
1
Members were Commissioners Romeo A. Brawner and Moslemen T. Macarambon, Sr.;
rollo, p. 64.
2
Rollo, pp. 20-26.
3
Id., p. 74.
4
Id., p. 26.
5
Id., p. 27.
6
Id., pp. 28-31.
7
Id., p. 64.
8
Id., p. 74.
9
G.R. No. 185140, June 30, 2009.
10
Sec. 3, Rule 22.
11
Rule 40, Sec. 3, provides:
Section 3. Appeal Fees- The appellant in election cases shall pay an appeal fee as
follows:
(a) xxx xxx xxx
(b) Election cases appealed from courts of limited jurisdiction…….. P500.00
In every case, a legal research fee of P20.00 shall be paid by the appellant in
accordance with Section 4, Republic Act No. 3870, as amended.
12
Issued on September 18, 2002.
13
Zamoras v. Court of Appeals, G. R. No. 158610, November 12, 2004, 442 SCRA 397,
404-405.
14
337 Phil 134.
15
Id., at p. 142.
16
G. R. No. 126361, June 19, 1997, 274 SCRA 503.
17
394 Phil 197.
18
415 Phil 87.
19
Supra.
20
At pp. 404-405.
21
At p. 406.
22
Meatmasters International Corporation v. Lelis Integrated Development Corporation,
452 SCRA 626, 630.
23
Caspe v. Court of Appeals, G. R. No. 142535, June 15, 2006, 490 SCRA 588, 591.
24
386 Phil 412, 417-418.
25
Caspe v. Court of Appeals, id., at p. 590.
26
Suliguin v. Commission on Elections, G. R. No. 166046, March 23, 2006, 485 SCRA
219, 233.
27
Reyes-Tabujara v. Court of Appeals, G. R. No. 172813, July 20, 2006, 495 SCRA 844,
857-858.
28
Malinias v. COMELEC, 439 Phil 319, 330.
29
In the Matter of Clarifying the Implementation of COMELEC Rules Re: Payment of
Filing Fees for Appealed Cases involving Barangay and Municipal Elective Positions
from the Municipal Trial Courts, Municipal Circuit Trial Courts, Metropolitan Trial
Courts and Regional Trial Courts.
30
The seventh day following the publication in Philippine Star and Manila Standard
Today of Resolution No. 8486, pursuant to its effectivity clause.
31
Rules of Procedure in Election Contests before the Courts involving Elective
Municipal and Barangay Officials.
32
G. R. No. 185140, June 30, 2009.
33
G. R. Nos. 186007 and 186016, July 27, 2009.
34
Emphases appear in the original text.
SUPREME COURT
Manila
EN BANC
G.R. No. 181869 October 2, 2009
ISMUNLATIP H. SUHURI, Petitioner,

vs.
THE HONORABLE COMMISSION ON ELECTIONS (En Banc), THE MUNICIPAL
BOARD OF CANVASSERS OF PATIKUL, SULU AND KABIR E. HAYUDINI,
Respondents.
DECISION
BERSAMIN, J.:
In this special civil action for certiorari, the Court again determines whether or not the exclusion
of certain election returns from the canvass due to allegations of irregularities and statistical
improbability made by a candidate are proper grounds for a pre-proclamation controversy by
which to annul the proclamation of his rival as duly-elected.
THE CASE
The Municipal Board of Canvassers (MBC) of Patikul, Sulu had earlier ruled against petitioner
Ismunlatip H. Suhuri’s plea for the exclusion of 25 election returns from the canvass of votes
cast for the 2007 mayoralty race in Patikul, Sulu and then proclaimed respondent Kabir E.
Hayudini as the duly-elected Mayor. Appealing to the Commission on Elections (COMELEC),
Suhuri insisted on the invalidity of the proclamation because of the existing pre-proclamation
controversy involving the exclusion of the 25 election returns. The COMELEC, Second
Division, had sustained Suhuri’s appeal and nullified Hayudini’s proclamation, but the
COMELEC en banc reversed the Second Division through the assailed resolution of January 29,
2008.
Suhuri thus assails on certiorari the January 29, 2008 resolution of the COMELEC en banc that
reversed the resolution of the Second Division.1 He claims that the COMELEC en banc thereby
gravely abused its discretion amounting to lack or excess of jurisdiction.
ANTECEDENTS
Suhuri ran for the position of Municipal Mayor of Patikul, Sulu during the May 14, 2007
national and local elections. He was opposed by Hayudini and a third candidate, Datu Jun
Tarsum.2 During the canvassing held on May 17, 2007 within the Sulu State College in Jolo,
Sulu, Suhuri orally objected to the inclusion of the election returns from the following 25
precincts, namely: Precincts 09/10A, 11A/12A, 13A/14A, 15A/16A, 17A/18A, 19A/20A, and
21A/22A of Barangay Anuling; Precincts 47A/48A, 49A/50A, and 51A/52A of Barangay
Bongkuang; Precincts 87A/88A, 89A/90A, 91A/92A, 93A/94A, 95A/96A, 97A/98A, and
99A/100A of Barangay Langhub; Precincts 101A/102A, 103A/104A, 105A/106A, 107A/108A,
and 109A/110A of Barangay Latih; and Precincts 116A/117A, 118A/119A, and 120A of
Barangay Maligay. The affected precincts carried a total of 4,686 votes.3 He later filed with the
MBC written petitions regarding such exclusion on May 17, 18 and 19, 2007.4 He asserted that
the 25 election returns were "(1) [o]bviously manufactured; (2) [t]ampered with or falsified; (3)
[p]repared under duress; and (4) [characterized by] [s]tatistical improbability."5
The MBC ruled against Suhuri in the evening of May 19, 2007 by rejecting his objections to the
25 election returns.6 Then and there, he manifested his intent to appeal vis-à-vis the ruling. He
filed his notice of appeal shortly thereafter.7 In the same evening, the MBC proclaimed Hayudini
as the duly elected Mayor for having obtained 7,578 votes as against Suhuri’s 6,803 votes based
on a complete canvass of the election returns, for a margin of 775 votes in favor of Hayudini.8
On May 23, 2007, Suhuri filed a petition-appeal with the COMELEC,9 docketed as S.P.C. No.
07-118. The petition-appeal was assigned to the Second Division.
On May 25, 2007, Suhuri likewise filed an election protest ad cautelam dated May 21, 2007 in
the Regional Trial Court (RTC) in Patikul, Sulu to contest the results of the elections for
Municipal Mayor of Patikul, Sulu.10 On June 28, 2007, however, the RTC held the election
protest in abeyance upon Suhuri’s own motion due to his pending pre-proclamation controversy
in S.P.C. 07-118.
In a further move, Suhuri brought a so-called petition to declare a failure of election with urgent
motion to suspend and/or annul the canvass of the election returns dated May 18, 2007,11
referring to the results from the 25 precincts in Barangays Anuling, Bongkaung, Langhub, Latih,
and Maligay, all within Patikul, Sulu. However, the COMELEC en banc denied the petition for
insufficiency of evidence on October 9, 2007.121avvph!1
On June 12, 2007, the COMELEC, Second Division, gave due course to Suhuri’s petition-
appeal.13
On July 24, 2007, the COMELEC, Second Division, ruling on Suhuri’s petition-appeal, excluded
the 25 questioned electoral returns from the canvass for the position of Mayor of Patikul, Sulu;
and voided the proclamation of Hayudini as the duly elected Mayor.141avvphi1
In due course, Hayudini moved for the reconsideration of the July 24, 2007 ruling of the Second
Division.15
Initially resolving Hayudini’s motion for reconsideration, Commissioners Florentino A. Tuason,

Jr. and Nicodemo Ferrer voted in favor of the resolution of the Second Division, while Acting
Chairman Resurreccion Z. Borra, Commissioner Romeo A. Brawner and Commissioner Rene V.
Sarmiento dissented.16 Due to the fact that the required majority vote necessary to reverse the
resolution of the Second Division was not reached, the COMELEC en banc conducted a re-
hearing on November 22, 2007 pursuant to Section 6, Rule 18 of the Comelec Rules of
Procedure.17 At the re-hearing, Suhuri presented 20 witnesses, who affirmed and identified their
respective affidavits. For his part, Hayudini waived the cross-examination. Thereafter, the parties
were required to submit their memoranda, and the appeal was then deemed submitted for
resolution.18
On January 29, 2008, the COMELEC en banc promulgated its assailed resolution,19 disposing:
WHEREFORE, premises all considered the Commission (En Banc) resolved as it hereby
resolves to GRANT the Motion for Reconsideration. The Resolution of the Second Division is
hereby REVERSED and SET ASIDE. Consequently, the proclamation of Kabir Hayudini is
hereby declared VALID.
ISSUES
In his petition, Suhuri insists that:
I. THE RESPONDENT HONORABLE COMMISSION ON ELECTIONS (EN BANC)

COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT HELD TO REVERSE AND SET ASIDE THE 24 JULY 2007
RESOLUTION OF THE HONORABLE COMMISSSION’S SECOND DIVISION BASED ON
THE REPORT OF RESPONDENT MUNICIPAL BOARD OF CANVASSERS BELATEDLY
FILED AFTER RESPONDENT HAYUDINI’S MOTION FOR RECONSIDERATION, FOR
THE SECOND TIME, HAS ALREADY BEEN SUBMITTED FOR DECISION; AND
II. THE RESPONDENT HONORABLE COMMISSION ON ELECTIONS (EN BANC)

OF JURISDICTION WHEN IT HELD THAT THE ISSUE PROFERRED BY PETITIONER
DOES NOT INVOLVE A PRE-PROCLAMATION CONTROVERSY.
RULING OF THE COURT
We uphold the assailed resolution of the COMELEC en banc.
Suhuri’s Grounds Were Not Proper

for a Pre-Proclamation Controversy
Were Suhuri’s grounds for nullifying Hayudini’s proclamation as the duly elected Mayor proper
for a pre-proclamation controversy?
A pre-proclamation controversy, according to Section 1, Article XX of the Omnibus Election

Code, refers to:
xxx any question pertaining to or affecting the proceedings of the board of canvassers which may
be raised by any candidate or by any registered political party or coalition of parties before the
board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and
236 in relation to the preparation, transmission, receipt, custody and appreciation of the election
returns.
Not every question bearing on or arising from the elections may constitute a ground for a pre-
proclamation controversy. Section 243 of the Omnibus Election Code enumerates the scope of a
pre-proclamation controversy, as follows:
Sec. 243. Issue that may be raised in pre-proclamation controversy – The following shall be
proper issues that may be raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion, or intimidation, or
they are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were canvassed,
the results of which materially affected the standing of the aggrieved candidate or
candidates.
Clearly, Section 243, supra, limits a pre-proclamation controversy to the questions enumerated
therein. The enumeration is restrictive and exclusive.20 Resultantly, the petition for a pre-
proclamation controversy must fail in the absence of any clear showing or proof that the election
returns canvassed are incomplete or contain material defects (Section 234, Omnibus Election
Code); or appear to have been tampered with, falsified or prepared under duress (Section 235,
Omnibus Election Code); or contain discrepancies in the votes credited to any candidate, the
difference of which affects the result of the election (Section 236, Omnibus Election Code).21
To be noted, too, is that in a pre-proclamation controversy, the COMELEC is restricted to an

examination of the election returns and is without jurisdiction to go beyond or behind the
election returns and to investigate election irregularities.22 For as long as the election returns
appear to be authentic and duly accomplished on their faces, the Board of Canvassers cannot
look beyond or behind the election returns in order to verify allegations of irregularities in the
casting or counting of votes. 23
Suhuri submits that the 25 challenged election returns were defective for being manufactured,
tampered with or falsified, and for statistical improbability. He lists the following irregularities to
buttress his submission, namely:24
i. The election returns for Precinct Nos. 9A/10A and 99A/100A have no signatures and
thumbmarks of poll watchers. More importantly, the respective poll clerks in the two
precincts did not affix their signatures in the election returns.
ii. For Precinct Nos. 11A/12A, 17A/18A, 89A/90A, 91A/92A, 93A/94A and 95A/96A (6
of the 25 contested election returns), petitioner got zero (0)- a statistically improbable
result.
iii. For Precinct Nos. 15A/16A, there appears to be two poll watchers who affixed their
signatures are the same and appear to have been made by the same and one person;
iv. For Precinct Nos. 13A/14A, of the 210 total registered voters, respondent Hayudini
garnered a perfect 210 and petitioner got one (1) – a statistically improbable result;
v. For Precinct Nos. 21/A/22A, the names of the members of the Board of Election
Inspectors (BEI) and the poll watchers appear to have been made by only one person;
vi. For Precinct Nos. 49A/50, the printed names of the poll watchers of the petitioner are
printed thereon without their signature, consistent with their Affidavit that they were
intimidated into leaving the polling place as early as when they had just presented their
appointment papers to the members of the BEI;
vii. For Precinct Nos. 11A/12A, there is only one poll watcher who affixed his signature;
viii. For Precinct Nos. 51A/52A, there is the lack of signature of the third member of the
BEI;
ix. For Precinct Nos. 89A/90A, the entries for the precinct no., barangay,
city/municipality and province are completely blank while names, signatures and thumb
marks of the BEI are complete; and
x. For Precinct Nos. 93A/94A, there is only one poll watcher who affixed his name and
signature and with no thumb mark;25
Suhuri further submits that threat, violence, duress and intimidation attended the preparation of
the questioned election returns. As proof, his petition-appeal has included the following
affidavits,26 to wit:
1. The affidavit of Benhar S. Mohammad, attesting that the supporters of Hayudini and
his party-mate, gubernatorial candidate Abdulsakur Tan, prevented him from entering the
polling place where he was supposed to vote;
2. The joint-affidavit of Angka J. Saradil, Nurhia J. Sidin and Muranda A. Tilah and
Injang A. Ajidin, attesting that they were not allowed to vote after being identified as
supporters of Suhuri; and that they saw other voters being also prevented from voting;
3. The affidavit of Munning Mandun, a duly appointed watcher, attesting that the persons
who cast their votes were not those appearing in the voter’s list; and that the bona fide
voters listed therein were prevented from casting their votes;
4. The joint-affidavit of Sherilyn Sawadjaan, Nurmina Usman, Najir S. Bakil, Merhami
S. Bakil, Mubin G. Bakil, Nur-Asiya J. Jumdail and Gabir S. Jumdail, duly appointed
poll watchers, attesting that they were not allowed to enter their assigned precincts by
known supporters of Hayudini;
5. The joint affidavit of Bennajar Jul, Nelson Jul, Rubin Ambutong and Wahab N.
Sanuddin, attesting, among others, that they saw Maligay Barangay Chair Pula Juhul
enter the precinct with an identified group of persons; that when affiant Bennajar Jul
confronted Juhul regarding his unlawful presence in the precinct, Juhul boxed him,
causing his nose to bleed; that the ballots that they had filled as registered voters were not
dropped into the ballot box; and that they were told to go home by a member of the Board
of Election Inspectors (BEI) of the precinct because the voting had supposedly ended as
early as 1:30 pm;
6. The joint-affidavit of Jarah A. Jumdail, Kahil T. Barrahani, Almezer H. Rashid, Elias

O. Villamor, Anna A. Barrahani and Najar T. Jihili, attesting that Hayudini’s younger
brother Mindal threatened them not to go into their precincts to vote; and that they saw
the companions of Mindal accomplish the ballots in said precincts in place of the bona
fide registered voters therein;
7. The joint affidavit of Munib A. Sabiran, Aldibar Sabiran, Nuramin J. Usman, Sarkiya
Usman, and Abdulhan Bakil, duly assigned poll watchers, attesting that they were not
allowed to enter their assigned precincts by known supporters of Hayudini;
8. The joint affidavit of Muharram Jul, Kagayan Sanuddin, Amil Elias, Sehon Eli,
Weldizon Awwalon, Tayte Sanuddin, Juljamin Sannudin, Hali Sannudin, Pathar Juli and
Abduranil Sanuddin, attesting to the illegal intervention of Maligay Chair Juhul in the
casting of votes by threatening them with bodily harm, resulting in their not being able to
vote;
9. The affidavit of Ermalyn J. Jamasali, a member of the BEI on duty in Precinct

17A/18A, attesting that BEI Chair Rolina Abubakar gave the unused ballots under duress
to unidentified men who proceeded to fill them up and handed them to affiant Jamasali to
drop in the ballot box; and
10. The affidavit of Police Inspector Francisco K. Panisan, Chief of Police of Patikul,
attesting that he received several complaints to the effect that a number of registered
voters in the precincts clustered within the Anuling Elementary School were not allowed
to vote; and that some voters were physically prevented from getting into their respective
precincts.
In fine, Suhuri’s submissions and supporting affidavits show that the election returns for Precinct
Nos. 51A/52A lacked one of the necessary BEI signatures; that six of the contested election
returns lacked some or all of the signatures and/or thumbmarks of the poll watchers; that another
six election returns might indicate a statistical improbability of results; and that only one election
return had no entries in the spaces for the precinct number, barangay, city/municipality and
province.27
Unfortunately for the petitioner, the cited irregularities and omissions could not be the bases for
granting his petition for the exclusion of the 25 election returns in a pre-proclamation
controversy.
Firstly, the defects cited by Suhuri were mere irregularities or formal defects that did not warrant
the exclusion of the affected election returns. Indeed, the mere attendance or presence of the
formal defects did not establish the commission of palpable irregularities in the election returns.
As held in Baterina v. Commission on Elections,28 the grounds for the exclusion of election
returns from the canvassing as raised by the petitioners’ therein –referring to, among others, the
failure to close the entries with the signatures of the election inspectors, and the lack of
signatures of the petitioners’ watchers, both involving a violation of the rules governing the
preparation and delivery of election returns for canvassing – did not necessarily affect the
authenticity and genuineness of the subject election returns as to warrant their exclusion from the
canvassing, being but defects in form insufficient to support the conclusion that these had been
tampered with or spurious.29
In this regard, the Court has said that the conclusion that election returns were obviously
manufactured or false and should consequently be disregarded from the canvass must be
approached with extreme caution and made only upon the most convincing proof;30 and that only
when the election returns were palpably irregular might they be rejected.31
Secondly, the MBC corrected the defects before the canvass of the election returns upon finding
the cause of the defects to be satisfactorily explained by the members of the Board of Election
Tellers. The MBC’s report bears this out, to wit:32
3. Minutes of the canvass x x x will show that there were only very few election returns that were
not signed by some members of the Board of Election Tellers. The Board decided to defer the
canvass on those returns and issued written directives to each of the concerned Board of Election
Teller to appear before the Board of Canvassers for explanation for such omission. True enough,
the summoned members of the Board of Election Tellers who failed to affix their signatures in
the return appeared and gave the explanation in open session that they failed to affix their
signature not because there was fraud, violence or other irregularities in the preparation thereof,
but such omission was caused solely and unwittingly by the fact that they were heavily sleepy,
tired, hungry and miserably exhausted in the waiting for the delivery of the election returns. Prior
to this, they have been in the different polling centers spread throughout the municipality of
Patikul early morning on election day for the preparation of the voting and the voting proper.
4. Some testified that the counting of ballots and the preparation of election returns in their
respective precinct was merely lighted by candles outside the school classrooms since the school
classrooms were not enough to accommodate all the precincts for the purpose of counting and
preparation of election returns. This had unwittingly contributed to the faultless and innocent
omission to affix the signature.
5. In the presence of lawyers from different political parties and candidates, official watchers and
before the Board of Canvassers, the members of the Board of Election Tellers affixed their
signature on the previously incomplete election returns.
6. After such completion and towards the end of the canvass, not a single election return
appeared to be materially defective x x x.33
The COMELEC en banc expectedly approved of the MBC’s actions, absent any other plausible
explanation for the defects supported by substantial evidence. In the assailed resolution, the
COMELEC en banc aptly stated, viz:34
We meticulously re-examined the questioned election returns and they all appear to be regular
and authentic. No showing of alterations and erasures could be seen on their faces. The re-
examination would also show that twenty three (23) of the returns were completely signed and
thumbmarked by all the members of the Board of Election Inspectors. Some were signed by at
least two (2) watchers. In Precinct Nos. 47A/48A and 91A/92A, all the watchers signed the
returns. Only two (2) returns, Precinct Nos. 9A/10A and 99A/100A did not contain the
signatures of poll watchers, but were signed and thumbmarked by the Chairmen and Third
Members. Even then, this is not a formal defect which would constitute a proper ground for
exclusion. This means that the asseverations of the petitioner-appellant has no leg to lean on. 35
We agree with the COMELEC en banc. The actions of the MBC were reasonable and warranted.
Judicial notice is properly taken of the fact that the conduct of elections in many parts of this
country, particularly in areas like Patikul, Sulu, often come under circumstances less than ideal
and convenient for the officials administering the elections; and of the fact that the process of
elections usually involvesd sleepless nights, tiresome work, and constant dangers to the lives and
personal safeties of the many officials who work to see to it that the elections are orderly and
peaceful and their results are obtained smoothly and with the least delay. We can easily conclude
that such trying circumstances often lead to unintended omissions in form similar to those Suhuri
pointed out.
Thirdly, the allegation of a statistical improbability reflected in the election returns for Precinct
Nos. 11A/12A, 17A/18A, 89A/90A, 91A/92A, 93A/94A and 95A/96A (wherein Suhuri obtained
zero) and for Precinct Nos. 13A/14A (wherein Hayudini garnered 210 out of the 211 total
registered voters, with Suhuri being credited with one vote) lacks substance and merit.
The doctrine of statistical improbability was first pronounced in Lagumbay v. Commission on

Elections,36 in which the Court upheld the power and duty of the COMELEC to reject the returns
of about 50 precincts affecting the elections of Senators, because their results were "contrary to
all statistical probabilities," thus:
It appearing therein that — contrary to all statistical probabilities — in the first set, in each
precinct the number of registered voters equalled the number of ballots and the number of votes
reportedly cast and tallied for each and every candidate of the Liberal Party, the party in power;
whereas, all the candidates of the Nacionalista Party got exactly zero; and in the second set, —
again contrary to all statistical probabilities — all the reported votes were for candidates of the
Liberal Party, all of whom were credited with exactly the same number of votes in each precinct,
ranging from 240 in one precinct to 650 in another precinct; whereas, all the candidates of the
Nacionalista Party were given exactly zero in all said precincts.
Lagumbay expounded on the doctrine of statistical improbability and the doctrine’s effect on the
power of the COMELEC to reject the results reflected in the election returns when such returns
showed prima facie that they did not reflect the true and valid reports of regular voting, thus:37
We opined that the election result in said precincts as reported was utterly improbable and
clearly incredible. For it is not likely, in the ordinary course of things, that all the electors of one
precinct would, as one man, vote for all the eight candidates of the Liberal Party, without giving
a single vote to one of the eight candidates of the Nacionalista Party. Such extraordinary
coincidence was quite impossible to believe, knowing that the Nacionalista Party had and has a
nationwide organization, with branches in every province, and was, in previous years, the party
in power in these islands.
We also know from our experience in examining ballots in the three Electoral Tribunals
(Presidential, Senate, and House) that a large portion of the electors do not fill all the blanks for
senators in their ballots. Indeed, this observation is confirmed by the big differences in the votes
received by the eight winning senators in this as well as in previous national elections; 2 almost a
million votes between the first place and the eight. Furthermore, in 1965, the total number of
electors who cast their votes was 6,833,369 (more or less). If every voter had written eight names
on his ballot, the total number of votes cast for all the candidates would be that number
multiplied by 8, namely 54,666,952. But the total number of votes tallied for the candidates for
senator amounted to 49,374,942 only. The difference between the two sums represents the
number of ballots that did not contain eight names for senators. In other words, some 5 million
ballots did not carry eight names. Of course, this is a rough estimate, because some ballots may
have omitted more names, in which case, the number of incomplete ballots would be less. But
the general idea and the statistical premise is there.
The same statistical result is deducible from the 1963 election data: total number of electors who
voted, 7,712,019; if each of them named eight senators, the total votes tallied should have been
61,696,152, and yet the total number tallied for all the senatorial candidates was 45,812,470
only. A greater number of incomplete ballots.
It must be noted that this is not an instance wherein one return gives to one candidate all the
votes in the precinct, even as it gives exactly zero to the other. This is not a case where some
senatorial candidates obtain zero exactly, while some others receive a few scattered votes. Here,
all the eight candidates of one party garnered all the votes, each of them receiving exactly the
same number; whereas all the eight candidates of the other party got precisely nothing.
The main point to remember is that there is no blockvoting nowadays.
What happened to the vote of the Nacionalista inspector? There was one in every precinct.
Evidently, either he became a traitor to his party, or was made to sign a false return by force or
other illegal means. If he signed voluntarily, but in breach of faith, the Nacionalista inspector
betrayed his party; and, any voting or counting of ballots therein, was a sham and a mockery of
the national suffrage.
Hence, denying prima facie recognition to such returns on the ground that they are manifestly
fabricated or falsified, would constitute a practical approach to the Commission's mission to
insure free and honest elections.
In Mitchell vs. Stevens, supra, the returns showed a noticeable excess of votes over the number
of registered voters, and the court rejected the returns as obviously "manufactured". Why? The
excess could have been due to the fact that, disregarding all pertinent data, the election officers
wrote the number of votes their fancy dictated; and so the return was literally a "manufactured",
"fabricated" return. Or maybe because persons other than voters, were permitted to take part and
vote; or because registered voters cast more than one ballot each, or because those in charge of
the tally sheet falsified their counts. Hence, as the Mitchell decision concluded, the returns were
"not true returns . . . but simply manufactured evidences of an attempt to defeat the popular will."
All these possibilities and/or probabilities were plain fraudulent practices, resulting in
misrepresentation of the election outcome. "Manufactured" was the word used. "Fabricated" or
"false" could as well have been employed.
The same ratio decidendi applies to the situation in the precincts herein mentioned. These returns
were obviously false or fabricated — prima facie. Let us take for example, precinct No. 3 of
Andong, Lanao del Sur. There were 648 registered voters. According to such return all the eight
candidates of the Liberal Party got 648 each, and the eight Nacionalista candidates got exactly
zero. We hold such return to be evidently fraudulent or false because of the inherent
improbability of such a result — against statistical probabilities — specially because at least one
vote should have been received by the Nacionalista candidates, i.e., the vote of the Nacionalista
inspector. It is, of course, "possible" that such inspector did not like his party's senatorial line-up;
but it is not probable that he disliked all of such candidates, and it is not likely that he favored all
the eight candidates of the Liberal Party. Therefore, most probably, he was made to sign an
obviously false return, or else he betrayed his party, in which case, the election therein — if any
— was no more than a barefaced fraud and a brazen contempt of the popular polls.
Of course we agree that frauds in the holding of the election should be handled — and finally
settled — by the corresponding courts or electoral tribunals. That is the general rule, where
testimonial or documentary evidence, is necessary; but where the fraud is so palpable from the
return itself (res ipsa loquitur — the thing speaks for itself), there is no reason to accept it and
give it prima facie value.
At any rate, fraud or no fraud, the verdict in these fifty precincts may ultimately be ascertained
before the Senate Electoral Tribunal. All we hold now is that the returns show "prima facie" that
they do not reflect true and valid reports of regular voting. The contrary may be shown by
candidate Climaco — in the corresponding election protest.
Under Lagumbay, therefore, the doctrine of statistical improbability is applied only where the
unique uniformity of tally of all the votes cast in favor of all the candidates belonging to one
party and the systematic blanking of all the candidates of all the opposing parties appear in the
election return.38 The doctrine has no application where there is neither uniformity of tallies nor
systematic blanking of the candidates of one party.39 Thus, the bare fact that a candidate for
public office received no votes in one or two precincts, standing alone and without more, cannot
adequately support a finding that the subject election returns are statistically improbable. Verily,
a zero vote for a particular candidate in the election returns is but one strand in the web of
circumstantial evidence that the electoral returns were prepared under duress, force and
intimidation.40
The Court has thus warned that the doctrine of statistical improbability must be restrictively
viewed, with the utmost care being taken lest in penalizing fraudulent and corrupt practices –
which is truly called for – innocent voters become disenfranchised, a result that hardly
commends itself.41 Such prudential approach makes us dismiss Suhuri’s urging that some of the
electoral results had been infected with the taint of statistical improbability as to warrant their
exclusion from the canvass in a pre-proclamation controversy. Specifically, his petition and the
records nowhere show that his party-mates received a similar number of votes (or lack of any) by
which to conclude that there were a unique uniformity of tally and a systematic blanking of other
candidates belonging to one party.
Fourthly, Suhuri contends that threat, violence, duress and intimidation were attendant in the
preparation of election returns of the 25 contested precincts. He has presented the affidavits of
voters and poll watchers from the 25 precincts whose election returns he questioned;42 the
affidavit of one Ermalyn J. Jamasali, a member of the BEI of one of the precincts; and the
affidavit of Police Inspector Panisan, Chief of Police of Patikul, Sulu.43
Yet, the affidavits, because they referred to incidents that had occurred at the various precincts
during the voting, did not substantiate Suhuri’s allegation of duress, threats, coercion, and
intimidation during the preparation or making of the election returns. The COMELEC en banc
rightly noted and pointed this out in its assailed resolution, to wit:
x x x the various affidavits presented by the petitioner do not even relate to the fact of the
election returns being manufactured or prepared under duress, but to the alleged irregularities in
the voting which are proper grounds in an election protest.44
Fifthly, BEI member Jamasali narrated in her affidavit her having personally witnessed fraud
committed during the elections. Even assuming that the fraud she thereby exposed constituted an
irregularity in the conduct of the elections, the incident, being isolated, did not warrant the
exclusion of all the 25 election returns, but only of the return for the precinct where the fraud had
occurred. However, the exclusion of the election returns from that precinct (i.e., Precinct
17A/18A), if called for, would not alter the overall result for the mayoralty contest in Patikul,
Sulu,45 considering that said precinct had only 189 registered voters. We note that Hayudini had
a winning margin of 775 votes over Suhuri.
Lastly, Police Inspector Panisan’s election report,46 albeit official, would not justify the
exclusion of the returns from the precincts clustered in the Anuling Elementary School.
Concededly, Panisan’s report, being hearsay because he had not himself actually witnessed the
incidents described in the report, was unreliable and had no value for purposes of Suhuri’s
petition-appeal. It would not be trite to emphasize that the results of an election should not be
annulled based on hearsay evidence.
II
COMELEC En Banc
Did Not Gravely Abuse Its Discretion
In a special civil action for certiorari, the petitioner carries the burden of proving not merely
reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the public respondent for its issuance of the impugned order.47 Grave abuse of discretion
is present "when there is a capricious and whimsical exercise of judgment as is equivalent to lack
of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason
of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of
positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation
of law."48 In other words, the tribunal or administrative body must have issued the assailed
decision, order or resolution in a capricious or despotic manner.49
Suhuri did not discharge his burden as petitioner, to satisfactorily show that his grounds were
proper for a pre-proclamation controversy. We cannot go to his succor, for the COMELEC
cannot not look behind or beyond the 25 contested election returns in a pre-proclamation
controversy. Moreover, contrary to his urging, the COMELEC en banc did not rely mainly on the
report submitted by the MBC on December 4, 2007 in order to find against him. It is clear that
the COMELEC en banc took note of the matters and circumstances that Suhuri himself had
submitted to its consideration when it rendered its assailed resolution. If it did not accept his
submissions, it did not abuse its discretion, because it based its assailed resolution on the
established facts, the law, and the pertinent jurisprudence.
Before closing, we stress that the powers of the COMELEC are essentially executive and
administrative in nature. This is the reason why the question of whether or not there were
terrorism, vote-buying and other irregularities in the elections should be ventilated in regular
election protests. The COMELEC is not the proper forum for deciding such protests.50
Accordingly, a party seeking to raise issues, the resolution of which compels or necessitates the
COMELEC’s piercing the veil of election returns that appear prima facie to be regular on their
face, has his proper remedy in a regular election contest.51
WHEREFORE, we affirm the resolution dated January 29, 2008 issued in S.P.C. No. 07-118 by
the Commission on Elections en banc, reversing the resolution dated July 24, 2007 of its Second
Division; and confirm the proclamation of respondent Kabir E. Hayudini as the duly elected
Mayor of the Municipality of Patikul, Province of Sulu in the local elections of May 14, 2007.
The petitioner shall pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
(On official leave)

CONSUELO YNARES-SANTIAGO
LEONARDO A. QUISUMBING*
Associate Justice
Associate Justice

(On leave)
MINITA V. CHICO-NAZARIO
CONCHITA CARPIO MORALES**
Associate Justice
Associate Justice
ANTONIO EDUARDO B.
NACHURA
Associate Justice
Associate Justice
TERESITA J. LEONARDO-DE (On leave)

CASTRO ARTURO D. BRION**

ROBERTO A. ABAD
Associate Justice
CERTIFICATION
REYNATO S. PUNO
Chief Justice
Footnotes
*
On official leave.
**
On leave.
1
Rollo, Vol. I, pp. 33-42.
2
Id., pp. 4-5, 112-113.
3
Id., p. 9.
4
Id., pp. 78-102.
5
Id., p. 8.
6
Id., p. 75.
7
Id., p. 76.
8
Id., p. 9.
9
Id., pp. 66-74.
10
Id., pp. 194-202.
11
Id., pp. 112-116.
12
Rollo, Vol. II, pp. 566-570.
13
14
Id., p. 45-57.
15
Id., 272-294.
16
Id., p. 34.
17
Id., pp. 405-406.
18
Id., p. 35.
19
Supra, at note 1.
20
Matalam v. Commission on Elections, G.R. No. 123230, April 18, 1997, 271 SCRA
733; Sanchez v. Commission on Elections, G.R. No. -78461, August 12, 1987, 153 SCRA
67.
21
Sanchez v. Commission on Elections, supra, at p. 68
22
Matalam v. Commission on Elections, supra, at p. 734.
23
Loong v. Comelec, G.R. Nos. 107814-107815, May 16, 1996, 257 SCRA 1, 2-3.
24
Rollo, Vol. II, pp. 605-606.
25
Underlines are provided for emphasis only.
26
27
Id., pp. 351-353.
28
Baterina v. Commission on Elections, G.R. Nos. 95347-49, January 6, 1992, 205
SCRA 1, 3.
29
Id., p. 10.
30
Estrada v. Navarro, G.R. No. L-28340, December 29, 1967, 21 SCRA 1514.
31
Mutuc v. Commission on Elections, G.R. No. L-28517, February 21, 1968, 22 SCRA
662, 667.
32
33
34
Supra, at note 1, pp. 38-39.
35
36
G.R. No. L-25444, January 31, 1966, 16 SCRA 175.
37
Id.
38
See Sinsuat v. Pendatun, G.R. No. L-31501, June 30, 1970, 33 SCRA 630.
39
Doruelo v. Commission on Elections, G.R. No. L-67746, November 21, 1984, 133
SCRA 376, 377.
40
Velayo v. Commission on Elections, G.R. No. 135613, March 9, 2000, 327 SCRA 713,
743.
41
Id.
42
43
Id., pp. 27-29.
44
Supra, at note 1, p. 40.
45
Rollo, Vol. I, p. 196.
46
Id., at p. 219.
47
Suliguin v. Commission on Elections, G.R. No. 166046, March 23, 2006, 485 SCRA
219, 233.
48
Reyes-Tabujara v. Court of Appeals, G.R. No. 172813, July 20, 2006, 495 SCRA 844,
857-858.
49
Malinias v. Commission on Elections, 439 Phil 319, 330.
50
Abes v. Commission on Elections, G.R. No. L-28348, December 15, 1967, 21 SCRA
1252, 1258.
51
Matalam v. Commission on Elections, supra, at note 20, p. 734.
SUPREME COURT
Manila
EN BANC
G.R. No. 164195 December 4, 2009
APO FRUITS CORPORATION and HIJO PLANTATION, INC. Petitioners,

vs.
THE HON. COURT OF APPEALS and LAND BANK OF THE PHILIPPINES,
Respondents.
RESOLUTION
BERSAMIN, J.:
This case originated from the Third Division, which rendered its decision on February 6, 2007 in
favor of petitioners Apo Fruits Corporation (AFC) and Hijo Plantation, Inc. (HPI). On December
19, 2007, however, the Third Division modified its decision upon the motion for reconsideration
of respondent Land Bank of the Philippines (Land Bank), deleting the award of interest and
attorney’s fees.
For consideration and resolution is the second motion for reconsideration (with respect to the
denial of the award of legal interest and attorney's fees) filed by AFC and HPI.
Antecedents
On October 12, 1995, AFC and HPI voluntarily offered to sell the lands subject of this case
pursuant to Republic Act No. 6657 (Comprehensive Agrarian Reform Law, or CARL). The
Department of Agrarian Reform (DAR) referred their voluntary-offer-to-sell (VOS) applications
to Land Bank for initial valuation. Land Bank fixed the just compensation at
P165,484.47/hectare, that is, P86,900,925.88, for AFC, and P164,478,178.14, for HPI. The
valuation was rejected, however, prompting Land Bank, upon the advice of DAR, to open
deposit accounts in the names of the petitioners, and to credit in said accounts the sums of
P26,409,549.86 (AFC) and P45,481,706.76 (HPI). Both petitioners withdrew the amounts in
cash from the accounts, but afterwards, on February 14, 1997, they filed separate complaints for
determination of just compensation with the DAR Adjudication Board (DARAB).
When DARAB did not act on their complaints for determination of just compensation after more
than three years, the petitioners filed complaints for determination of just compensation with the
Regional Trial Court (RTC) in Tagum City, Branch 2, acting as a special agrarian court (SAC),
docketed as Agrarian Cases No. 54-2000 and No. 55-2000. Summonses were served on May 23,
2000 to Land Bank and DAR, which respectively filed their answers on July 26, 2000 and
August 18, 2000. The RTC conducted a pre-trial, and appointed persons it considered competent,
qualified and disinterested as commissioners to determine the proper valuation of the properties.
Ultimately, the RTC rendered its decision on September 25, 2001, disposing thus:
WHEREFORE, consistent with all the foregoing premises, judgment is hereby rendered by this
Special Agrarian Court where it has determined judiciously and now hereby fixed the just
compensation for the 1,388.6027 hectares of lands and its improvements owned by the plaintiffs:
APO FRUITS CORPORATION and HIJO PLANTATION, INC., as follows:
First – Hereby ordering after having determined and fixed the fair, reasonable and just
compensation of the 1,338.6027 hectares of land and standing crops owned by plaintiffs –
APO FRUITS CORPORATION and HIJO PLANTATION, INC., based at only P103.33
per sq. meter, ONE BILLION THREE HUNDRED EIGHTY-THREE MILLION ONE
HUNDRED SEVENTY-NINE THOUSAND PESOS (P1,383,179,000.00), Philippine
Currency, under the current value of the Philippine Peso, to be paid jointly and severally
to the herein PLAINTIFFS by the Defendants-Department of Agrarian Reform and its
financial intermediary and co-defendant Land Bank of the Philippines, thru its Land
Valuation Office;
Second – Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM

and/or LAND BANK OF THE PHILIPPINES, thru its Land Valuation Office, to pay
plaintiffs-APO FRUITS CORPORATION and HIJO PLANTATION, INC., interests on
the above-fixed amount of fair, reasonable and just compensation equivalent to the
market interest rates aligned with 91-day Treasury Bills, from the date of the taking in
December 9, 1996, until fully paid, deducting the amount of the previous payment which
plaintiffs received as/and from the initial valuation;
Third – Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM

jointly and severally the Commissioners’ fees herein taxed as part of the costs pursuant to
Section 12, Rule 67 of the 1997 Rules of Civil Procedure, equivalent to, and computed at
Two and One-Half (2 ½) percent of the determined and fixed amount as the fair,
reasonable and just compensation of plaintiffs’ land and standing crops plus interest
equivalent to the interest of the 91-Day Treasury Bills from date of taking until full
payment;
Fourth - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM

jointly and severally the attorney’s fees to plaintiffs equivalent to, and computed at ten
(10%) Percent of the determined and fixed amount as the fair, reasonable and just
compensation of plaintiffs’ land and standing crops, plus interest equivalent to the 91-
Day Treasury Bills from date of taking until the full amount is fully paid;
Fifth - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM

and/or LAND BANK OF THE PHILIPPINES, thru its Land Valuation Office to deduct
from the total amount fixed as fair, reasonable and just compensation of plaintiffs’
properties the initial payment paid to the plaintiffs;
Sixth - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM
and/or LAND BANK OF THE PHILIPPINES, thru its Land Valuation Office, to pay the
costs of the suit; and
Seventh - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM

and/or LAND BANK OF THE PHILIPPINES, thru its Land Valuation Office, to pay all
the aforementioned amounts thru The Clerk of Court of this Court, in order that said
Court Officer could collect for payment any docket fee deficiency, should there be any,
from the plaintiffs.
Upon Land Bank’s motion for reconsideration, the RTC modified the decision by promulgating
its decision dated December 5, 2001, holding:
WHEREFORE, premises considered, IT IS HEREBY ORDERED that the following

modifications as they are hereby made on the dispositive portion of this Court’s consolidated
decision be made and entered in the following manner, to wit:
On the Second Paragraph of the Dispositive Portion which now reads as follows, as modified:
Second - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM and/or

LAND BANK OF THE PHILIPPINES, thru its Land Valuation Office, to pay plaintiffs-APO
FRUITS CORPORATION and HIJO PLANTATION, INC., interest at the rate of Twelve (12%)
Percent per annum on the above-fixed amount of fair, reasonable and just compensation
computed from the time the complaint was filed until the finality of this decision. After this
decision becomes final and executory, the rate of TWELVE (12%) PERCENT per annum shall
be additionally imposed on the total obligation until payment thereof is satisfied, deducting the
amounts of the previous payments by Defendant-LBP received as initial valuation;
On the Third Paragraph of the Dispositive Portion which Now Reads As Follows, As Modified:
Third - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM and/or

LAND BANK OF THE PHILIPPINES, thru its Land Valuation Office, to pay jointly and
severally the Commissioners’ fees herein taxed as part of the costs pursuant to Section 12, Rule
67 of the 1997 Rules of Civil Procedure, equivalent to, and computed at Two and One-Half (2 ½)
percent of the determined and fixed amount as the fair, reasonable and just compensation of
plaintiffs’ land and standing crops and improvements;
On the Fourth Paragraph of the Dispositive Portion which Now Reads As follows, As Modified:
Fourth - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM and/or

severally the attorney’s fees to plaintiffs equivalent to, and computed at ten (10%) Percent of the
determined and fixed amount as the fair, reasonable and just compensation of plaintiffs’ land and
standing crops and improvements.
Except for the above-stated modifications, the consolidated decision stands and shall remain in
full force and effect in all other respects thereof.
Land Bank appealed by notice of appeal. The RTC denied due course to the appeal, however,
holding that such mode was not proper in view of the ruling in Land Bank of the Philippines v.
De Leon,1 which held that the correct mode of appeal from a decision of the RTC acting as SAC
was by petition for review (Rule 43). The RTC denied Land Bank’s motion for
reconsideration.1avvphi1
Land Bank was thus compelled to file in March 2003 a petition for certiorari in the Court of
Appeals (CA) to assail the RTC’s order denying due course to its appeal and denying its motion
for reconsideration.
The CA granted the petition for certiorari on February 12, 2004, and nullified the assailed orders
of the RTC.
Following the CA’s denial of their joint motion for reconsideration on June 21, 2004, AFC and
HPI appealed on certiorari, raising the following issues, to wit:
I.
WHETHER OR NOT THE QUESTIONED DECISION AND RESOLUTION ARE IN

ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME
COURT?
II.
WHETHER OR NOT RESPONDENT LBP IS BOUND BY THE DECISION OF COURT OF

APPEALS IN CA-G.R. SP NO. 74879 AND IS THEREFORE PRECLUDED FROM FILING
CA-G.R. SP NO. 76222?
III.
WHETHER OR NOT THE FILING BY RESPONDENT LBP OF CA-G.R. SP NO. 76222 IS

ALREADY BARRED BY RES JUDICATA?
IV.
WHETHER OR NOT THE RULING OF THE SUPREME COURT IN THE ARLENE DE

LEON CASE, GIVING ONLY PROSPECTIVE EFFECT TO ITS EARLIER RESOLUTION
AS TO THE PROPER MODE OF APPEAL FROM DECISIONS OF SPECIAL AGRARIAN
COURTS IS APPLICABLE IN THE INSTANT CASE?
V.
WHETHER OR NOT RESPONDENT LBP WAS DEPRIVED OF DUE PROCESS AND/OR
OF ITS RIGHT TO APPEAL?
VI.
WHETHER OR NOT THE SUBJECT PETITION (CA-G.R. SP NO. 76222) WAS MERELY
INTERPOSED TO DELAY THE EXECUTION OF SPECIAL AGRARIAN COURT’S
"DECISION" WHICH IS BASED ON EVIDENCE DULY PRESENTED AND PROVED?
AFC and HPI prayed that the decision and resolution of the CA be reversed and set aside, and
that the RTC’s decision dated September 25, 2001 rendered in Agrarian Cases No. 54-2000 and
No. 55-2000 be declared final and executory.
In its decision dated February 6, 2007, the Third Division decreed as follows:
WHEREFORE, premises considered, the instant Petition is PARTIALLY GRANTED. While the
Decision, dated 12 February 2004, and Resolution, dated 21 June 2004, of the Court of Appeals
in CA-G.R. SP No. 76222, giving due course to LBP’s appeal, are hereby AFFIRMED, this
Court, nonetheless, RESOLVES, in consideration of public interest, the speedy administration of
justice, and the peculiar circumstances of the case, to give DUE COURSE to the present Petition
and decide the same on its merits. Thus, the Decision, dated 25 September 2001, as modified by
the Decision, dated 5 December 2001, of the Regional Trial Court of Tagum City, Branch 2, in
Agrarian Cases No. 54-2000 and No. 55-2000 is AFFIRMED. No costs.
SO ORDERED.
Land Bank sought reconsideration upon the following grounds, viz:
A. THE HONORABLE COURT RULED IN THE FAIRLY RECENT CASE OF LAND

BANK OF THE PHILIPPINES v. CELADA, G.R. NO. 164876 THAT SPECIAL
AGRARIAN COURTS ARE NOT AT LIBERTY TO DISREGARD THE FORMULA
DEVISED TO IMPLEMENT SECTION 17 OF REPUBLIC ACT NO. 6657
OTHERWISE KNOWN AS THE COMPREHENSIVE AGRARIAN REFORM LAW
OF 1988.
B. RESPONDENT LBP SATISFIED OR COMPLIED WITH THE CONSTITUTIONAL

REQUIREMENT ON PROMPT AND FULL PAYMENT OF JUST COMPENSATION.
C. RESPONDENT LBP ENSURED THAT THE INTERESTS ALREADY EARNED

ON THE BOND PORTION OF THE REVALUED AMOUNTS WERE ALIGNED
WITH 91-DAY TRASURY BILL (T-BILL) RATES AND ON THE CASH PORTION
THE NORMAL BANKING INTEREST RATES.
D. PETITIONERS ARE NOT ENTITLED TO AN AWARD OF ATTORNEY’S FEES

AND COMMISSIONERS’ FEES.
E. RESPONDENT LBP’S COUNSEL DID NOT UNNECESSARILY DELAY THE
PROCEEDINGS.
F. THE IMMINENT MODIFICATION, IF NOT THE REVERSAL, OF THE

SUPREME COURT RULINGS IN BANAL AND CELADA BY THE QUESTIONED
DECISION NECESSITATES A REFERRAL OF THE INSTANT CASE TO THE
HONORABLE COURT SITTING EN BANC.
On December 19, 2007, the Third Division partially granted Land Bank’s motion for
reconsideration, ruling thus:
WHEREFORE, premises considered, the Motion for Reconsideration is partially granted as

follows:
(1) The award of 12% interest rate per annum in the total amount of just compensation is
DELETED.
(2) This case is ordered remanded to the RTC for further hearing on the amount of
Commissioners’ Fees.
(3) The award of attorney’s fees is DELETED.
(4) The Motion for Referral of the case to the Supreme Court sitting En Banc and the
request or setting of the Omnibus Motion for Oral Arguments are all DENIED for lack of
merit. In all other respects, our Decision dated 6 February 2007 is MAINTAINED.
SO ORDERED.
Dissatisfied, the parties filed their respective motions for reconsideration, but the Third Division
denied their motions on December 19, 2007. Upon finality of the resolution, the entry of
judgment was issued on May 16, 2008.
Notwithstanding the issuance of the entry of judgment, AFC and HPI still filed on May 28, 2008
several motions, namely: (1) motion for leave to file and admit second motion for
reconsideration; (2) second motion for reconsideration (with respect to the denial of the award of
legal interest and attorney's fees); and (3) motion to refer the second motion for reconsideration
to the Honorable Court en banc.
The case was thereafter referred by the Third Division to the Court en banc. Hence, this
resolution.
Ruling
The second motion for reconsideration (with respect to the denial of the award of legal interest
and attorney's fees) is denied, because, firstly, to grant it is to jettison the immutability of a final
decision – a matter of public policy and public interest, as well as a time-honored principle of
procedural law; and secondly, to award interest and attorney’s fees despite the fact that Land
Bank paid the just compensation without undue delay is legally and factually unwarranted.
Immutability of Judgment
The main role of the courts of justice is to assist in the enforcement of the law and in the
maintenance of peace and order by putting an end to judiciable controversies with finality.2
Nothing better serves this role than the long established doctrine of immutability of judgments.
It is never a small matter to maintain that litigation must end and terminate sometime and
somewhere, even at the risk of occasional errors.3 A judgment that has acquired finality becomes
immutable and unalterable, and may no longer be modified in any respect even if the
modification is meant to correct erroneous conclusions of fact or law and whether it will be made
by the court that rendered it or by the highest court of the land.4 The reason for the rule is that if,
on the application of one party, the court could change its judgment to the prejudice of the other,
it could thereafter, on application of the latter, again change the judgment and continue this
practice indefinitely.5 The equity of a particular case must yield to the overmastering need of
certainty and unalterability of judicial pronouncements.6
The doctrine of immutability and inalterability of a final judgment has a two-fold purpose: (1) to
avoid delay in the administration of justice and thus, procedurally, to make orderly the discharge
of judicial business and (2) to put an end to judicial controversies, at the risk of occasional errors,
which is precisely why courts exist. Controversies cannot drag on indefinitely. The rights and
obligations of every litigant must not hang in suspense for an indefinite period of time.7 The
doctrine is not a mere technicality to be easily brushed aside, but a matter of public policy as
well as a time-honored principle of procedural law.
The foregoing considerations show that granting the second motion for reconsideration (with
respect to the denial of the award of legal interest and attorney's fees) absolutely risks the
trivialization of the doctrine of immutability of a final and executory judgment, and, therefore,
the motion should be rejected.
Although the immutability doctrine admits several exceptions, like: (1) the correction of clerical
errors; (2) the so-called nunc pro tunc entries that cause no prejudice to any party; (3) void
judgments; and (4) whenever circumstances transpire after the finality of the decision rendering
its execution unjust and inequitable,8 none of the exceptions applies herein, simply because the
matters involved herein are plainly different from those involved in the exceptional cases.
A sampling of decided cases that illustrate what the Court has heretofore recognized as
exceptional circumstances warranting the reopening of final and immutable judgments is proper
to be made.
In Tan Tiac Chiong v. Cosico,9 the Court, in dismissing the administrative complaint filed
against CA Justice Rodrigo Cosico, necessarily sustained the recall of the entry of judgment
made by Justice Cosico, as ponente, in a criminal case appealed to the CA. The Court explained
that the recall of entry of judgment might have been an error of judgment, for which no judge
should be administratively charged, in the absence of showing of any bad faith, malice, or
corrupt purpose. It noted that Justice Cosico had recalled the entry of judgment to afford due
process to the accused, because the CA decision had been sent to the house of the counsel of the
accused but had been returned with the notation "Moved Out." The CA was thus prompted to
resend the decision to the counsel’s new address, thereby allowing the accused to file a motion
In De Guzman v. Sandiganbayan,10 the Court had previously denied with finality the petitioner’s
motion for reconsideration of its decision affirming his conviction by the Sandiganbayan of a
violation of Section 3 (e) of Republic Act No. 3019. The petitioner nonetheless took a novel
recourse by filing a so-called omnibus motion for leave to vacate first motion for reconsideration
in the light of the present developments and to consider evidence presented herein and to set
aside conviction. Citing a transcendental reason, that the accused was then about to lose his
liberty simply because his former lawyers had pursued a "carelessly contrived procedural
strategy of insisting on what has already become an imprudent remedy" that had forbade him
from offering his evidence although all the while available for presentation, the Court used its
pervasive and encompassing power to alter even that which it had already declared final, and
directed the remand of the case to the Sandiganbayan, to allow the evidence of the accused to be
received and appreciated, holding that:
xxx To cling to the general rule in this case is only to condone rather than rectify a serious
injustice to petitioner whose only fault was to repose his faith and entrust his innocence to his
previous lawyers. xxx
In Barnes v. Padilla,11 the Court reinstated the petition despite the judgment having become final
and executory due to the counsel’s filing in the CA of a motion for extension of time to file
motion for reconsideration (which was not allowed under the internal rules of the CA), instead of
a timely motion for reconsideration. Aside from observing that the petitioner, although bound by
the mistakes or neglect of his counsel, should not be allowed to suffer serious injustice from such
mistakes or neglect of counsel, the Court decided to rescind the assailed decision of the CA, and
to direct the Regional Trial Court to proceed with the hearing of the action for specific
performance that had been erroneously dismissed on the ground of forum-shopping in view of a
previously filed case for ejectment, considering that the ejectment action did not bar the action
for specific performance.
In Manotok IV v. Heirs of Homer L. Barque,12 the Court set aside the entry of judgment to
reopen the case on the merits, because "the militating concern for the Court en banc in accepting
these cases is not so much the particular fate of the parties, but the stability of the Torrens system
of registration by ensuring clarity of jurisprudence on the field."
In contrast, the matter involved herein concerns only the petitioners’ mere private claim for
interest and attorney’s fees, which cannot even be classified as unprecedented. Even worse is that
the petitioners’ private claim does not qualify either as a substantial or transcendental matter, or
as an issue of paramount public interest, for no special or compelling circumstance has been
present to warrant the relaxation of the doctrine of immutability in favor of the petitioners. That
the Third Division might have erred in deleting the award of interest is neither a special nor a
compelling reason to have the Court en banc favor the petitioners with a modification of the
resolution dated December 19, 2007, after it became final and immutable on May 16, 2008.
No Interest is Due Unless There is Delay

In Payment of Just Compensation
Even assuming, for the sake of argument, that the Court allows the reopening of a final
judgment, AFC and HPI are still not entitled to recover interest on the just compensation and
attorney’s fees.
The taking of property under CARL is an exercise by the State of the power of eminent domain.
A basic limitation on the State’s power of eminent domain is the constitutional directive that
private property shall not be taken for public use without just compensation.13 Just compensation
refers to the sum equivalent to the market value of the property, broadly described to be the price
fixed by the seller in open market in the usual and ordinary course of legal action and
competition, or the fair value of the property as between one who receives and one who desires
to sell. It is fixed at the time of the actual taking by the State. Thus, if property is taken for public
use before compensation is deposited with the court having jurisdiction over the case, the final
compensation must include interests on its just value, to be computed from the time the property
is taken up to the time when compensation is actually paid or deposited with the court.14
In Philippine Railway Company v. Solon,15 decided in 1909, the Court treated interest as part of
just compensation when the payment to the owner was delayed. There, the Court, relying heavily
on American jurisprudence, declared:
Our attention has not been called to any Act of the Commission relating to the matter of interest.
But that the owner is entitled to interest from the time when the company took possession of the
property on the second day of February, 1907, until the decision of the court on the 16th day of
June, 1908, we think is clear. The statute requires just compensation to be made to the owner for
his property taken, and section 246 above cited requires the court to make such final order and
judgment as shall secure to the plaintiff the property essential to the exercise of his rights under
the law, and to the defendant just compensation for the land so taken. The defendant, the owner,
was deprived of the use of his property from the 2d day of February, 1907, until the 19th day of
July, 1908. He lost the use of it for this time, and it cannot be said that he has received just
compensation for it if he is not allowed interest upon the value of the property during that time.
In the case of The Pennsylvania Railroad Co. vs. Cooper (58 Penn. St., 408), the court said at
page 409:
It can hardly be made a question that the plaintiff below was entitled to recover interest upon the
value of his property taken by the company defendants and appropriated for the purposes of their
road, from the time that it was taken. He is in the position of a vendor of land, who has always
been held to have a right to interest on the purchase-money where possession has been delivered
to the vendee.
In the case of Warren vs. First Division of the St. Paul & Pacific Railroad Co. (21 Minn., 424),
the court said at page 427:
If, therefore, the allowance of interest upon the amount of the assessment shall be necessary to
make the compensation just, we have no doubt of authority in the court to make it; and we think
that, generally, it is necessary to allow interest from the date of the award to give to the owner
just compensation. While the assessed value, if paid at the date taken for the assessment,
might be just compensation, it certainly would not be, if payment be delayed, as might
happen in many cases, and as did happen in this case, till several years after that time. The
difference is the same as between as between a sale for cash in hand and sale on time.
In the case of Philipps vs. The South Park Commissioners (119 Ill. 626), the court said at page
645:
The court allowed interest on the amount decreed Mrs. Philipps, from the 27th day of August,
1870, the time when the commissioners took possession of the land, and this is relied upon as
error. Lands cannot be taken and appropriated to public use without just compensation is made to
the owner; and we think our law of eminent domain requires the payment of the compensation,
or a tender, or deposit of the same with the county treasurer, before possession of the land shall
be taken. This seems manifest from section 10 of the Eminent Domain Act, which, in substance,
provides that, when the report of the jury is brought in, the court or judge shall make such order
as to right and justice shall pertain, ordering that petitioner enter upon such property, and the use
of the same, upon payment of full compensation, as ascertained as aforesaid. The payment of the
compensation, or the deposit of the same, seems to be a condition precedent to the taking of
possession. When, therefore, the possession of the land is taken, the compensation is due; and if
due and payable, it, in justice, ought to draw interest from that time.
But it is said that when the company took possession on the 2d day of February, 1907, it
deposited with the Insular Treasurer the value of the land and therefore ought not to pay interest
on that amount.
The order made on that date was at the request of the company and in accordance with the
provisions of section of Act No. 1592, which is as follows:
When condemnation proceedings are brought by any railway corporation, in any court of
competent jurisdiction in the Philippine Islands, for the purpose of the expropriation of land for
the proper corporate use of such railway corporation, said corporation shall have the right to
enter immediately upon the possession of the land involved, after and upon the deposit by
ascertained and fixed by the court having jurisdiction of the proceedings, said sum to be held by
the Treasurer subject to the orders and final disposition of the court: Provided, however, That the
court may authorize the deposit with the Insular Treasurer of a certificate of deposit of any
depository of the Government of the Philippine Islands in lieu of cash, such certificate to be
payable to the Insular Treasurer on demand in the amount directed by the court to be deposited.
The certificate and the moneys represented thereby shall be subject to the orders and final
disposition of the court. And in case suit has already been commenced on any land and the
money deposited with the Insular Treasurer at the date of the passage of this Act, the said money
may, upon proper order of the court, be withdrawn from the Treasury by the railway corporation
which deposited the same, and a certificate of deposit, as above described may be deposited in
lieu thereof. And the court is empowered and directed, by appropriate order and writ if
necessary, to place the railway corporation in possession of the land, upon the making of the
deposit.
The defendant having claimed that his damages would amount to P19,398.42, the company
deposited this sum, but it is very evident from the terms of the Act that this deposit was in
no sense a payment nor an offer of payment by the company for the land. It simply
guaranteed that the plaintiff would pay whatever sum might eventually be awarded to the
defendant. The defendant had no right to withdraw this money on the 3d day of February,
1907, nor did he acted upon the report of the commissioners and entered its judgment,
which it did on the 16th day of June, 1908. We therefore hold that the defendant would not
secure just compensation for the property taken unless he received interest on its value from the
2d day of February, 1907, until the 16th day of June, 1908.
Solon soon became the basis for the award of interest in expropriation cases, until the payment of
interest became an established part of every case in which the taking and payment were not
contemporaneously made.16
In Land Bank of the Philippines v. Wycoco,17 however, the Court came to explicitly rule that
interest is to be imposed on the just compensation only in case of delay in its payment, which
fact must be sufficiently established. Significantly, Wycoco was moored on Article 2209, Civil
Code, which provides:
Article 2209. If the obligation consists in the payment of money and the debtor incurs in delay,
the indemnity for damages, there being no stipulation to the contrary, shall be the payment of the
interest agreed upon, and in the absence of stipulation, the legal interest, which is six per cent per
annum. (1108)
`The history of this case proves that Land Bank did not incur delay in the payment of the just
compensation. As earlier mentioned, after the petitioners voluntarily offered to sell their lands on
October 12, 1995, DAR referred their VOS applications to Land Bank for initial valuation. Land
Bank initially fixed the just compensation at P165,484.47/hectare, that is, P86,900,925.88, for
AFC, and P164,478,178.14, for HPI. However, both petitioners rejected Land Bank’s initial
valuation, prompting Land Bank to open deposit accounts in the petitioners’ names, and to credit
in said accounts the amounts equivalent to their valuations. Although AFC withdrew the amount
of P26,409,549.86, while HPI withdrew P45,481,706.76, they still filed with DARAB separate
complaints for determination of just compensation. When DARAB did not act upon their
complaints for more than three years, AFC and HPI commenced their respective actions for
determination of just compensation in the Tagum City RTC, which rendered its decision on
September 25, 2001.
It is true that Land Bank sought to appeal the RTC’s decision to the CA, by filing a notice of
appeal; and that Land Bank filed in March 2003 its petition for certiorari in the CA only because
the RTC did not give due course to its appeal. Any intervening delay thereby entailed could not
be attributed to Land Bank, however, considering that assailing an erroneous order before a
higher court is a remedy afforded by law to every losing party, who cannot thus be considered to
act in bad faith or in an unreasonable manner as to make such party guilty of unjustified delay.
As stated in Land Bank of the Philippines v. Kumassie Plantation:18
The mere fact that LBP appealed the decisions of the RTC and the Court of Appeals does not
mean that it deliberately delayed the payment of just compensation to KPCI. x x x It may
disagree with DAR and the landowner as to the amount of just compensation to be paid to the
latter and may also disagree with them and bring the matter to court for judicial determination.
This makes LBP an indispensable party in cases involving just compensation for lands taken
under the Agrarian Reform Program, with a right to appeal decisions in such cases that are
unfavorable to it. Having only exercised its right to appeal in this case, LBP cannot be penalized
by making it pay for interest.
The Third Division justified its deletion of the award of interest thuswise:
AFC and HPI now blame LBP for allegedly incurring delay in the determination and payment of
just compensation. However, the same is without basis as AFC and HPI’s proper recourse after
rejecting the initial valuations of respondent LBP was to bring the matter to the RTC acting as a
SAC, and not to file two complaints for determination of just compensation with the DAR,
which was just circuitous as it had already determined the just compensation of the subject
properties taken with the aid of LBP.
In Land Bank of the Philippines v. Wycoco, citing Reyes v. National Housing Authority and
Republic v. Court of Appeals, this Court held that the interest of 12% per annum on the just
compensation is due the landowner in case of delay in payment, which will in effect make the
obligation on the part of the government one of forbearance. On the other hand, interest in the
form of damages cannot be applied, where there was prompt and valid payment of just
compensation. Thus:
The constitutional limitation of "just compensation" is considered to be the sum equivalent to the
market value of the property, broadly described to be the price fixed by the seller in open market
in the usual and ordinary course of legal action and competition or the fair value of the property
as between one who receives, and one who desires to sell, it being fixed at the time of the actual
taking by the government. Thus, if property is taken for public use before compensation is
deposited with the court having jurisdiction over the case, the final compensation must include
interests on its just value to be computed from the time the property is taken to the time when
compensation is actually paid or deposited with the court. In fine, between the taking of the
property and the actual payment, legal interests accrue in order to place the owner in a position
as good as (but not better than) the position he was in before the taking occurred.
xxx This allowance of interest on the amount found to be the value of the property as of the time
of the taking computed, being an effective forbearance, at 12% per annum should help eliminate
the issue of the constant fluctuation and inflation of the value of the currency over time. Article
1250 of the Civil Code, providing that, in case of extraordinary inflation or deflation, the value
of the currency at the time of the establishment of the obligation shall be the basis for the
payment when no agreement to the contrary is stipulated, has strict application only to
contractual obligations. In other words, a contractual agreement is needed for the effects of
extraordinary inflation to be taken into account to alter the value of the currency.
It is explicit from LBP v. Wycoco that interest on the just compensation is imposed only in case
of delay in the payment thereof which must be sufficiently established. Given the foregoing, we
find that the imposition of interest on the award of just compensation is not justified and should
therefore be deleted.
It must be emphasized that "pertinent amounts were deposited in favor of AFC and HPI within
fourteen months after the filing by the latter of the Complaint for determination of just
compensation before the RTC". It is likewise true that AFC and HPI already collected P149.6
and P262 million, respectively, representing just compensation for the subject properties.
Clearly, there is no unreasonable delay in the payment of just compensation which should
warrant the award of 12% interest per annum in AFC and HPI’s favor.
The foregoing justification remains correct, and is reiterated herein.
Lastly, approving the second motion for reconsideration will surely produce more harm than
good. In addition to the costly sacrifice of the long-standing doctrine of immutability, we will
thereby be sending the wrong impression that a private claim had primacy over public interest.
There are many other landowners already paid their just compensation by virtue of final
judgments, but who may believe themselves still entitled also to claim interest based on the
supposed difference between the desired valuations of their properties and the amounts of just
compensation already paid to them. To reopen their final judgments will definitely open the
floodgates to petitions for the resurrection of litigations long ago settled. This Court cannot allow
such scenario to happen.
WHEREFORE, the Court denies the petitioners’ second motion for reconsideration (with respect
to the denial of the award of legal interest and attorney's fees), and reiterates the decision dated
February 6, 2007 and the resolution dated December 19, 2007 of the Third Division.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice


ANTONIO EDUARDO B.
NACHURA
Associate Justice
Associate Justice
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above resolution had been reached in consultation before the case was assigned to the writer of
REYNATO S. PUNO
Chief Justice
Footnotes
1
G.R. No. 143275, September 10, 2002, 388 SCRA 537.
2
Fariscal Vda. De Emnas v. Emnas, L-26095, January 28, 1980, 95 SCRA 470.
3
Gallardo-Corro v. Gallardo, G.R. No. 136228, January 30, 2001, 350 SCRA 568, 578;
Gomez v. Presiding Judge, RTC Br. 15, Ozamis City, 249 SCRA 432, 438-439.
4
Siy v. National Labor Relations Commission, G..R. No. 158971, August 25, 2005, 468
SCRA 154, 161-162.
5
Kline v. Murray, 257 P. 465, 79 Mont. 530.
6
Flores v. Court of Appeals, G.R. No. 97556 & 101152, July 29, 1996.
7
Land Bank of the Philippines v. Arceo, G.R. No. 158270, July 21, 2008, 559 SCRA
85.
8
Temic Semiconductors, Inc. Employees Union (TSIEU)-FFW v. Federation of Free
Workers (FFW), G..R. No. 160993, May 20, 2008, 554 SCRA 122, 134.
9
A.M. No. CA-02-33, July 31, 2002, 385 SCRA 509.
10
G..R. No. 103276, April 11, 1996, 256 SCRA 171.
11
G..R. No. 160753, September 30, 2004, 439 SCRA 675.
12
G..R. Nos. 162335 & 162605, December 18, 2008, 574 SCRA 468.
13
Article III, Section 9 of the 1987 Constitution.
14
Republic v. Court of Appeals, G..R. No. 146587, July 2, 2002, 383 SCRA 611, 622-
623.
15
13 Phil. 34.
16
Republic v. Juan, 92 SCRA 26, 57-58, G.R. No. L-24740, July 30, 1979..
17
G.R. No. 140160, January 13, 2004, 419 SCRA 67.
18
G.R. No. 177404, June 25, 2009.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
CHICO-NAZARIO, J.:
For resolution by the Court En Banc are the (1) the Motion for Leave to File and Admit Second
Motion for Reconsideration, and (2) Second Motion for Reconsideration filed by Apo Fruits
Corporation (AFC) and Hijo Plantation, Inc. (HPI).
To recall, the present Petition for Review on Certiorari originated from Agrarian Cases No. 54-
2000 and No. 55-2000, instituted by AFC and HPI, respectively, before the Regional Trial Court
(RTC), Branch 2, Tagum City (acting as a Special Agrarian Court), praying for the determination
and payment of just compensation for their land, taken and distributed by the Government under
the Comprehensive Agrarian Reform Program (CARP).
On 25 September 2001, the RTC rendered its Decision, substantially adopting the appraisal made
by the court-appointed commissioners, thus, decreeing:
WHEREFORE, consistent with all the foregoing premises, judgment is hereby rendered by this
Special Agrarian Court where it has determined judiciously and now hereby fixed the just
compensation for the 1,388.6027 hectares of lands and its improvements owned by the plaintiffs:
APO FRUITS CORPORATION and HIJO PLANTATION, INC., as follows:
First – Hereby ordering after having determined and fixed the fair, reasonable and just
compensation of the 1,338.6027 hectares of land and standing crops owned by plaintiffs –
APO FRUITS CORPORATION and HIJO PLANTATION, INC., based at only P103.33
per sq. meter, ONE BILLION THREE HUNDRED EIGHTY-THREE MILLION ONE
HUNDRED SEVENTY-NINE THOUSAND PESOS (P1,383,179,000.00), Philippine
Currency, under the current value of the Philippine Peso, to be paid jointly and severally
to the herein PLAINTIFFS by the Defendants-Department of Agrarian Reform and its
financial intermediary and co-defendant Land Bank of the Philippines, thru its Land
Valuation Office;
Second – Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM

plaintiffs-APO FRUITS CORPORATION and HIJO PLANTATION, INC., interests on
the above-fixed amount of fair, reasonable and just compensation equivalent to the
market interest rates aligned with 91-day Treasury Bills, from the date of the taking in
December 9, 1996, until fully paid, deducting the amount of the previous payment which
plaintiffs received as/and from the initial valuation;
Third – Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM

jointly and severally the Commissioners’ fees herein taxed as part of the costs pursuant to
Section 12, Rule 67 of the 1997 Rules of Civil Procedure, equivalent to, and computed at
Two and One-Half (2 ½) percent of the determined and fixed amount as the fair,
reasonable and just compensation of plaintiffs’ land and standing crops plus interest
equivalent to the interest of the 91-Day Treasury Bills from date of taking until full
payment;
Fourth - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM

jointly and severally the attorney’s fees to plaintiffs equivalent to, and computed at ten
(10%) Percent of the determined and fixed amount as the fair, reasonable and just
compensation of plaintiffs’ land and standing crops, plus interest equivalent to the 91-
Day Treasury Bills from date of taking until the full amount is fully paid;
Fifth - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM

and/or LAND BANK OF THE PHILIPPINES, thru its Land Valuation Office to deduct
from the total amount fixed as fair, reasonable and just compensation of plaintiffs’
properties the initial payment paid to the plaintiffs;
Sixth - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM

and/or LAND BANK OF THE PHILIPPINES, thru its Land Valuation Office, to pay the
costs of the suit; and
Seventh - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM
and/or LAND BANK OF THE PHILIPPINES, thru its Land Valuation Office, to pay all
the aforementioned amounts thru the Clerk of Court of this Court, in order that said Court
Officer could collect for payment any docket fee deficiency, should there be any, from
the plaintiffs.1
Acting on the Motion for Reconsideration of the Land Bank of the Philippines (LBP), the RTC
issued an Order dated 5 December 2001, modifying its earlier Decision, as follows:
WHEREFORE, premises considered, IT IS HEREBY ORDERED that the following

modifications as they are hereby made on the dispositive portion of this Court’s consolidated
decision be made and entered in the following manner, to wit:
On the Second Paragraph of the Dispositive Portion which now reads as follows, as modified:
Second - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM and/or

LAND BANK OF THE PHILIPPINES, thru its Land Valuation Office, to pay plaintiffs-APO
FRUITS CORPORATION and HIJO PLANTATION, INC., interest at the rate of Twelve (12%)
Percent per annum on the above-fixed amount of fair, reasonable and just compensation
computed from the time the complaint was filed until the finality of this decision. After this
decision becomes final and executory, the rate of TWELVE (12%) PERCENT per annum shall
be additionally imposed on the total obligation until payment thereof is satisfied, deducting the
amounts of the previous payments by Defendant-LBP received as initial valuation;
On the Third Paragraph of the Dispositive Portion which Now Reads As Follows, As Modified:
Third - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM and/or

severally the Commissioners’ fees herein taxed as part of the costs pursuant to Section 12, Rule
67 of the 1997 Rules of Civil Procedure, equivalent to, and computed at Two and One-Half (2 ½)
percent of the determined and fixed amount as the fair, reasonable and just compensation of
plaintiffs’ land and standing crops and improvements;
On the Fourth Paragraph of the Dispositive Portion which Now Reads As follows, As Modified:
Fourth - Hereby ordering Defendants – DEPARTMENT OF AGRARIAN REFORM and/or

severally the attorney’s fees to plaintiffs equivalent to, and computed at ten (10%) Percent of the
determined and fixed amount as the fair, reasonable and just compensation of plaintiffs’ land and
standing crops and improvements.
Except for the above-stated modifications, the consolidated decision stands and shall remain in
full force and effect in all other respects thereof.2
LBP filed its Notice of Appeal with the RTC. In an Order dated 4 November 2002, the RTC
refused to give due course to the Notice of Appeal of LBP since ordinary appeal was not the
proper remedy from a decision on the determination of just compensation, rendered by a special
agrarian court, based on Land Bank of the Philippines v. De Leon.3 The RTC, instead, ordered
LBP to file a Petition for Review within the reglementary period.
This prompted LBP to file a Petition for Certiorari with the Court of Appeals, docketed as CA-
G.R. SP No. 76222. In its Decision4 dated 12 February 2004, the appellate court granted the
Petition of LBP, finding that the RTC committed grave abuse of discretion in refusing to give
due course to the Notice of Appeal of LBP. It ratiocinated that De Leon should not be given
retroactive effect so as to prejudice the remedy still available to LBP under the law at the time it
filed its appeal.
AFC and HPI then sought recourse from this Court by filing the instant Petition for Review on
Certiorari. On 6 February 2007, the Third Division of this Court promulgated its Decision,
partially granting the Petition for Review of AFC and HPI, at the same time, resolving the case
on the merits by affirming the Decision dated 12 February 2004 and Resolution dated 21 June
2004 of the RTC. According to the dispositive portion of the Decision of the Third Division of
this Court:
WHEREFORE, premises considered, the instant Petition is PARTIALLY GRANTED. While the
Decision, dated 12 February 2004, and Resolution, dated 21 June 2004, of the Court of Appeals
in CA-G.R. SP No. 76222, giving due course to LBP’s appeal, are hereby AFFIRMED, this
Court, nonetheless, RESOLVES, in consideration of public interest, the speedy administration of
justice, and the peculiar circumstances of the case, to give DUE COURSE to the present Petition
and decide the same on its merits. Thus, the Decision, dated 25 September 2001, as modified by
the Decision, dated 5 December 2001, of the Regional Trial Court of Tagum City, Branch 2, in
Agrarian Cases No. 54-2000 and No. 55-2000 is AFFIRMED. No costs.5
From the foregoing Decision, LBP filed an Omnibus Motion for (a) reconsideration of the said
decision; (b) referral of the case to the Supreme Court sitting En Banc; and (c) setting of its
motion for oral argument.6
In its Resolution dated 19 December 2007, the Third Division of the Court partially granted the
Motion for Reconsideration of LBP and accordingly made the following modifications of its
previous Decision:
WHEREFORE, premises considered, the Motion for Reconsideration is partially granted as

follows:
(1) The award of 12% interest rate per annum in the total amount of just compensation is
DELETED.
(2) This case is ordered remanded to the RTC for further hearing on the amount of
Commissioners’ Fees.
(3) The award of attorney’s fees is DELETED.

(4) The Motion for Referral of the case to the Supreme Court sitting En Banc and the
request or setting of the Omnibus Motion for Oral Arguments are all DENIED for lack of
merit. In all other respects, our Decision dated 6 February 2007 is MAINTAINED.7
The Third Division of this Court deleted the award for interest on the just compensation due
AFC and HP, based on the finding that petitioners were not entitled to interest because there was
no delay on the part of LBP.
The Third Division likewise deleted the award for attorney’s fees, holding that:
Contracts for attorney’s services in this jurisdiction stand upon an entirely different footing from
contracts for the payment of compensation for any other service.
x x x [A]n attorney is not entitled in the absence of express contract to recover more than a
reasonable compensation for his services; and even when an express contract is made, the court
can ignore it and limit the recovery to reasonable compensation if the amount of the stipulated
fee is found by the court to be reasonable.
The general rule is that attorney’s fees cannot be recovered as part of damages because of the
policy that no premium should be placed on the right to litigate. They are not to be awarded
every time a party wins a suit. The power of the court to award attorney’s fees under Article
2208 of the Civil Code demands factual, legal and equitable justification. A perusal of Article
2208 of the Revised Civil Code will reveal that the award of attorney’s fees in the form of
damages is the exception rather than the rule for it is predicated upon the existence of
exceptional circumstances.
In all cases, it must be reasonable, just and equitable if the same is to be granted. It is necessary
for the court to make findings of fact and law to justify the grant of such award. The matter of
attorney’s fees must be clearly explained and justified by the trial court in the body of its
decision.
In this case, the RTC failed to substantiate its award of attorney’s fees which amounts to ten
percent (10%) of the award of P1,383,179,000 and is equivalent to P138,317,900.00.8
Dissatisfied with the aforementioned Resolution, all the parties filed their respective Motions for
Reconsideration.
In its Resolution dated 30 April 2008, the Third Division of the Court refused to reconsider its
earlier Resolution of 19 December 2007.
Entry of Judgment was made in this case on 16 May 2008.9
Despite the entry of judgment, AFC and HPI submitted the following pleadings on 28 May 2008:
(1) Motion for Leave to File and Admit Second Motion for Reconsideration; (2) Second Motion
for Reconsideration, with respect to the denial of the award of legal interest and attorney’s fees;
and (3) Motion to Refer the Second Motion for Reconsideration to the Honorable Court En Banc.
10
AFC and HPI maintained that there were meritorious and compelling reasons to grant all three of
their Motions. AFC and HPI basically argued in their Second Motion for Reconsideration that:
WITH ALL DUE RESPECT, THE HONORABLE COURT SHOULD RECONSIDER AND
SET ASIDE ITS RESOLUTION DATED 30 APRIL 2008 INSOFAR AS IT DELETED THE
AWARD OF LEGAL INTEREST AT THE RATE OF TWELVE PERCENT (12%) PER
ANNUM ON THE UNPAID PORTION OF THE AMOUNT DETERMINED BY THE
HONORABLE COURT TO BE THE FAIR, REASONABLE AND JUST COMPENSATION
FOR MOVANTS AFC AND HPI’S PROPERTIES TO BE CONSISTENT WITH THE
RULINGS OF THE HONORABLE COURT IN A NUMBER OF CASES THAT IF THERE IS
DELAY IN THE PAYMENT OF JUST COMPENSATION, IT WILL RESULT IN THE
IMPOSITION OF TWELVE PERCENT (12%) LEGAL INTEREST PER ANNUM.
II
WITH ALL DUE RESPECT, MOVANTS AFC AND HPI WERE NOT THE REASON FOR
THE DELAY IN THE DETERMINATIION OF THE JUST COMPENSATION FOR ITS
PROPERTIES BECAUSE WHEN THEY FILED THE CASE BEFORE THE DEPARTMENT
OF AGRARIAN REFORM ADJUDICATION BOARD ("DARAB") IN 1997, THEY WERE
MERELY AVAILING OF THE ADMINISTRATIVE REMEDIES UNDER THE
COMPREHENSIVE AGRARIAN REFORM LAW ("CARL"). AT ANY RATE, EVEN IF
ASSUMING THAT MOVANTS AFC AND HPI WERE WRONG IN RESORTING TO THE
DARAB AND SHOULD HAVE GONE DIRECTLY TO THE REGIONAL TRIAL COURT
ACTING AS A SPECIAL AGRARIAN COURT FOR THE DETERMINATION OF JUST
COMPENSATION, THEN LEGAL INTEREST IS STILL DUE FROM THE DATE OF THE
FILING BY THE MOVANTS AFC AND HPI OF THE COMPLAINT BEFORE THE
REGIONAL TRIAL COURT IN TAGUM CITY, DAVAO DEL NORTE ON 17 MAY 2000.
III
WITH ALL DUE RESPECT, THE HONORABLE COURT SHOULD RECONSIDER ITS
RESOLUTION DATED 30 APRIL 2008 INSOFAR AS IT REMOVED THE AWARD OF
ATTORNEY’S FEES NOTWITHSTANDING THE FACT THAT MOVANTS AFC AND HPI
HAVE SUFFICIENTLY SHOWN THAT THEY ARE ENTITLED TO THE SAID AWARD.11
AFC and HPI vigorously protested the deletion by the Third Division of the Court, in the
Resolution dated 19 December 2007, of the award for interest, contending that in doing so, the
Third Division departed from the well-settled ruling in Philippine Railway Company v. Solon,12
Republic v. Court of Appeals,13 Land Bank of the Philippines v. Wycoco,14 and Land Bank of
the Philippines v. Imperial,15 which clearly recognized the entitlement of the landowner to legal
interest of twelve percent (12%) in cases of just compensation.16 Even assuming that AFC and
HPI were mistaken in resorting to the Department of Agrarian Reform Adjudication Board
instead of raising the issue of just compensation directly before the RTC, acting as Special
Agrarian Court, they should, at the very least, be awarded legal interest from the filing of the
Complaint on 17 May 2000 until full payment on 16 May 2008.17
AFC and HPI asserted that the Third Division of the Court also gravely erred in deleting the
award for attorney’s fees, insisting that they were able to establish their entitlement to the same.
Thus, AFC and HPI prayed in their Second Motion for Reconsideration that the Court En Banc:
(1) Award legal interest at the rate of twelve percent (12%) per annum from the time of
the taking on 09 December 1996 until respondent LBP’s payment on 09 May 2008 or
alternatively, from the time of judicial demand on 17 May 2000 until respondent LBP’s
payment on 09 May 2008; and
(2) Award attorney’s fees of ten percent (10%) or such amount as the Honorable Court
may deem justified, reasonable and appropriate.18
In a Resolution19 dated 2 June 2008, the Third Division of the Court noted without action the
three Motions of AFC and HPI in view of its earlier Resolution dated 19 December 2007,
denying with finality the Motion for Partial Reconsideration of all parties.
Extremely assiduous, AFC and HPI still filed on 2 February 2009 an Urgent Motion to
Resolve,20 prodding anew the Third Division of this Court to reconsider its deletion of the
awards for legal interest and attorney’s fees.
For its part, LBP filed a Manifestation21 with the following contents:
RESPONDENT LAND BANK OF THE PHILIPPINES (LBP, for brevity), by counsel and to
this Honorable Court, respectfully manifests that on 22 July 2008, it received a copy of the Entry
of Judgment in the above-captioned case, stating inter alia that the Decision dated 06 February
2007 and the Resolution dated 19 February 2007 became final and executory on 16 May 2008.
In view of the foregoing, no further action can be taken on the Urgent Motion to Resolve dated
19 January 2009 which movants Apo Fruits Corporation and Hijo Plantation, Inc. filed with the
Honorable Court.
WHEREFORE, it is respectfully prayed of this Honorable Court that this Manifestation be duly
NOTED.
Upon closer scrutiny, the Third Division of the Court found ample basis for the motion of AFC
and HPI to have their Motion for Leave to File and Admit Second Motion for Reconsideration
and Second Motion for Reconsideration referred to the Court En Banc. Subsequently, the Court
En Banc accepted the referral on 8 September 2009.
MAJORITY OPINION
The Majority opinion raised the following arguments for the denial of the second motion for
reconsideration of AFC and HPI, to wit:
1) immutability of judgments, and
2) absence of delay does not entitle AFC and HPI to be awarded legal interest.
As to immutability of judgment, the majority opinion insists that although the immutability
doctrine admits several exceptions, like: (1) the correction of clerical errors; (2) the so-called
nunc pro tunc entries that cause no prejudice to any party; (3) void judgments; and (4) whenever
circumstances transpire after the finality of the decision rendering its execution unjust and
inequitable,22 none of the exceptions applies herein, simply because the matters involved herein
are plainly different from those involved in the exceptional cases.
The matter involved herein concerns only AFC and HPI’s mere private claim for interest, which
cannot even be classified even be classified as unprecedented. Even worse is that AFC and HPI’s
private claim does not qualify either as a substantial or transcendental matter, or as an issue of
paramount public interest, for no special or compelling circumstance has been present to warrant
the relaxation of the doctrine of immutability in their favor.
The majority next argue that AFC and HPI are not entitled to interest on the ground that no
interest is due unless there is delay in payment of just compensation. They underscored that AFC
and HPI were paid about the time of the taking of the properties. Any delay in the resolution of
the case is attributable to them. The fixing of just compensation could have been speeded up had
AFC and HPI immediately brought the complaints for that purpose to the proper RTC, acting as
SAC. Nonetheless, AFC and HPI have not assailed the RTC’s handling of their action for
judicial determination of just compensation.
In all, the majority stress that LBP could not be held responsible for any delay in the payment of
just compensation due to AFC and HPI which would justify the payment of legal interest to the
latter.
DISSENTING OPINION
On the propriety of reopening this case, the Court is well aware of the fact that the Decision
dated 6 February 2007 of the Third Division already became final and executory with the entry
of judgment on 16 May 2008.23 Public policy and sound practice demand that, at the risk of
occasional errors, judgments of courts should become final at some definite date fixed by law.
When judgments gain finality, they become inviolable and impervious to modification. They
may no longer be reviewed or in any way modified directly or indirectly, even by this Court.24
Nonetheless, the recall of entries of judgment, albeit rare, is not a novelty.25 In Tan Tiac Chiong
v. Hon. Cosico,26 this Court already denied with finality two successive motions for
reconsideration of the judgment it earlier rendered; yet, it still recalled the Entry of Judgment in
the interest of substantial justice. The Court had also sanctioned the recall of entries of judgment
in cases such as Manotok IV v. Barque27 and Barnes v. Padilla,28 again, on the ground of
substantial justice. Particularly, in Barnes, the Court justified the relaxation of the procedural rule
on finality of judgment, thus:
However, this Court has relaxed this rule in order to serve substantial justice considering (a)
matters of life, liberty, honor or property, (b) the existence of special or compelling
circumstances, (c) the merits of the case, (d) a cause not entirely attributable to the fault or
negligence of the party favored by the suspension of the rules, (e) a lack of any showing that the
review sought is merely frivolous and dilatory, and (f) the other party will not be unjustly
prejudiced thereby.
Invariably, rules of procedure should be viewed as mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result in technicalities that
tend to frustrate rather than promote substantial justice, must always be eschewed. Even the
Rules of Court reflects this principle. The power to suspend or even disregard rules can be so
pervasive and compelling as to alter even that which this Court itself had already declared to be
final. (Emphases ours.)
Indeed, the Court reserves the power to suspend procedural rules and technicalities when they
tend to defeat, rather than serve, the interest of substantial justice. In Ginete v. Court of
Appeals,29 the Court expounded:
For when the operation of the Rules will lead to an injustice we have, in justifiable instances,
resorted to this extraordinary remedy to prevent it. The rules have been drafted with the primary
objective of enhancing fair trials and expediting justice. As a corollary, if their application and
operation tend to subvert and defeat, instead of promote and enhance it, their suspension is
justified. In the words of Justice Antonio P. Barredo in his concurring opinion in Estrada v. Sto
Domingo, "[T]his Court, through the revered and eminent Mr. Justice Abad Santos, found
occasion in the case of C. Viuda de Ordoveza v. Raymundo, to lay down for recognition in this
jurisdiction, the sound rule in the administration of justice holding that `it is always in the power
of the court (Supreme Court) to suspend its own rules or to except a particular case from its
operation, whenever the purposes of justice require it x x x."
The Rules of Court were conceived and promulgated to set forth guidelines in the dispensation of
justice but not to bind and chain the hand that dispenses it, for otherwise, courts will be mere
slaves to or robots of technical rules, shorn of judicial discretion. That is precisely why courts, in
rendering justice have always been, as they in fact ought to be, conscientiously guided by the
norm that on the balance, technicalities take a backseat to substantive rights, and not the other
way around. As applied to instant case, in the language of Justice Makalintal, technicalities
"should give way to the realities of the situation."
There are special circumstances in this case which convince the Court to recall the Entry of
Judgment made herein, take a second hard look at the positions espoused by AFC and HPI in
their Second Motion for Reconsideration30 and act accordingly.
AFC and HPI are entitled to interest in the payment of just compensation.
Nature of expropriation proceedings
Public use and just compensation are the bedrock of eminent domain.
Republic v. Court of Appeals31 very well enucleated the nature of expropriation proceedings:
Expropriation proceedings are not adversarial in the conventional sense, for the condemning
authority is not required to assert any conflicting interest in the property. Thus, by filing the
action, the condemnor in effect merely serves notice that it is taking title and possession of the
property, and the defendant asserts title or interest in the property, not to prove a right to
possession, but to prove a right to compensation for the taking. (citing US vs. Certain Lands in
Highlands (DY NY) 48 F Supp 306; San Bernardino Valley Municipal Water District vs. Gage
Canal Co. (4th Dist.), 226 Cal App 2d 206, 37 Cal Rptr 856.)
Obviously, however, the power is not without its limits: first, the taking must be for public use,
and second, that just compensation must be given to the private owner of the property. These
twin proscriptions have their origin in the recognition of the necessity for achieving balance
between the State interests, on the other hand, and private rights, upon the other hand, by
effectively restraining the former and affording protection to the latter. x x x.
When the state wields its power of eminent domain, there arises a correlative obligation on its
part to pay the owner of the expropriated property just compensation. If it fails, there is a clear
case of injustice that must be redressed.32 Though it is the duty of the court to protect the weak
and the underprivileged, this duty shall not be carried out as to deny justice to the landowner.33
The Court was even more emphatic in Barangay Sindalan, San Fernando Pampanga v. Court of
Appeals34 when it reiterated that the power of eminent domain can only be exercised for public
use and with just compensation. It cautioned that taking an individual’s private property is a
deprivation which can only be justified by a higher good – which is public use – and can only be
counterbalanced by just compensation. Without these safeguards, the taking of property would
not only be unlawful, immoral and null and void, but would also constitute a gross and
condemnable transgression of an individual’s basic right to property as well.1avvphi1
Stated otherwise, the immediate taking of the property of the landowner, which immediately
deprives him of the possession of the same and its use, highlights the exercise of the state’s
power of eminent domain.
In this case, AFC and HPI voluntarily offered to sell their properties to the DAR on 12 October
1995. Titles over the properties of AFC and HPI were cancelled not very long after, and in their
place a new certificate of title was issued in the name of the Republic of the Philippines on 9
December 1996. After the issuance of the Certificate of Title in the name of the Republic, the
Register of Deeds of Davao, upon the request of the DAR, issued transfer certificates of title and
Certificate of Land Ownership Awards to qualified farmer-beneficiaries. The farmer-
beneficiaries took possession of the properties on 2 January 1997.35 By this time, AFC and HPI
had already been deprived of the use and fruits of their property.36 They also lost control of the
property as of that date.37
JUST COMPENSATION; ACCRUAL OF LEGAL INTEREST
While it is true that all private properties are subject to the need of the government, and the
government may take them whenever the necessity or exigency of the occasion demands,
however, the Constitution guarantees that when this governmental right of expropriation is
exercised, it shall be attended by just compensation.38
From the taking of private property by the government under the power of eminent domain, there
arises an implied promise to compensate the owner for his loss.
Significantly, the above-mentioned provision of Section 9, Article III of the Constitution is not a
grant but a limitation of power. This limiting function is in keeping with the philosophy of the
Bill of Rights against the arbitrary exercise of governmental powers to the detriment of the
individual’s rights. Given this function, the provision should therefore be strictly interpreted
against the expropriator, the government, and liberally in favor of the property owner.39
In our Decision, we have provided an elucidation on what constitutes just compensation, thus:
The concept of just compensation embraces not only the correct determination of the amount to
be paid to the owners of the land, but also the payment of the land within a reasonable time from
its taking. Without prompt payment, compensation cannot be considered "just" inasmuch as the
property owner is being made to suffer the consequences of being immediately deprived of his
land while being made to wait for a decade or more before actually receiving the amount
necessary to cope with his loss.40 Just compensation is defined as the full and fair equivalent of
the property taken from its owner by the expropriator.41 It has been repeatedly stressed by this
Court that the measure is not the taker’s gain but the owner’s loss.42 The word "just" is used to
intensify the meaning of the word "compensation" to convey the idea that the equivalent to be
rendered for the property to be taken shall be real, substantial, full, and ample.43 (Emphases
supplied.)
Republic v. Court of Appeals,44 further broadened the concept of "just compensation" when it
underscored that:
The constitutional limitation of "just compensation" is considered to be the sum equivalent to the
market value of the property, broadly described to be the price fixed by the seller in open market
in the usual and ordinary course of legal action and competition or the fair value of the property
as between one who receives, and one who desires to sell, it fixed at the time of the actual taking
by the government. Thus, if property is taken for public use before compensation is deposited
with the court having jurisdiction over the case, the final compensation must include interests on
its just value to be computed from the time the property is taken to the time when compensation
is actually paid or deposited with the court. In fine, between the taking of the property and the
actual payment, legal interests accrue in order to place the owner in a position as good as (but not
better than) the position he was in before the taking occurred. (Emphasis supplied.)
Just compensation, thus, must embrace not only the correct (real, substantial, full and ample)
determination of the amount to be paid to the owners of the land but also its payment within a
reasonable time from the taking of the land to enable the landowners to cope with the loss;
otherwise, interest in the nature of damages from the time of the taking of the property up to the
actual payment of just compensation, is in order.45
Verily, jurisprudence has justifiably, wisely and correctly regarded the transaction between the
landowners and the government in expropriation proceedings, under the foregoing
circumstances, as one of loan or forbearance of money,46 which carries payment of interest in
case of delay in payment.
The legal interest for loan or forbearance of money is 12% per annum, citing Central Bank
Circular No. 416 dated 29 July 1974.47 However, Santos Ventura Hocorma Foundation, Inc.
succinctly emphasized that the 12% per annum applies only to loans or forbearance of money.48
The Court further explained, in Reyes v. National Housing Authority,49 that between the taking
of the property and the actual payment, legal interests accrue in order to place the owner in a
position as good as (but not better than) the position he was in before the taking occurred. The
allowance of interest – computed at 12% per annum -- on the amount found to be the value of the
property as of the time of the taking, being an effective forbearance, should help eliminate the
issue of the constant fluctuation and inflation of the value of the currency over time. Such is the
true role or nature of interest in expropriation cases.
Said interest runs as a matter of law and follows as a matter of course from the right of the
landowner, to be placed in as good a position as money can accomplish, as of the date of the
taking.50 Under this view, the interest awarded is deemed part of the just compensation required
to be paid to the owner.51
Republic v. Juan, 52 very succinctly synthesized our adherence to the prevailing view when it
expostulated:
In this jurisdiction, a study of the cases decided by this Court with respect to the award of
interest to the condemnee where there is a gap of time between the taking and the payment,
shows that We tend to follow the view just discussed. The first case – it would appear – where
the question of interest arose in this jurisdiction was the Philippine Railway Co. vs. Solon,
February 20, 1909, 13 Phil. 35-45. The two issues taken there in connection with interest were:
(1) From what time should interest be reckoned, from time of the taking possession of the
property by the government or from judgment of the trial court; and (2) whether on appeal,
appellant-condemnee is entitled to interest during the pendency of the appeal. In disposing of the
issues, the Court, relying heavily on American jurisprudence, appears to treat interest as part of
just compensation and as an additional amount sufficient to place the owner "in as good a
position as money can accomplish, as of the date of the taking." Thus, the Court declared:
"It remains to consider what interest the defendant is entitled to from the last named date. It
appears from the record that the company opposed the confirmation of the award. Its objections
were so far successful that the court reduced the amount awarded by the commissioners. The
owner was compelled to appeal and in his appeal has been so far successful as to reverse the
action of the court below. Under these circumstances we think he is entitled to interest on the
award until the final determination of this proceeding. What the result would be if he had failed
in his appeal, we do not decide. The interest thus allowed will be interest upon the amount
awarded by the commissioners from the 2nd day of February 1907, until payment" (13 Phil. 40-
44, italics supplied.)
The Solon case thereafter became the basis of award of interest on expropriation cases like
Philippine Railway v. Duran, 33 Phil. 159 [1916]; Manila Railroad Co. v. Alano, 36 Phil. 501
[1917]; Manila Railroad Co. v. Attorney General, 41 Phil. 177 [1920]; Alejo v. Provincial
Government of Cavite, 54 Phil. 304 [1930]; Tayabas v. Perez, 66 Phil. 470 [1938]; Republic v.
Gonzales, 94 Phil. 957 [1954]; Republic v. Lara, 96 Phil. 172 [1954]; Phil. Executive
Commission v. Estacio, 98 Phil. 219 [1956]; Republic of the Philippines v. Deleste, 46 al., 99
Phil. 1035 [1956]; Republic v. Garcellano, 103 Phil. 237 [1958]; Yaptinchay, 108 Phil. 1053
[1960]; Republic v. Tayengco, 19 SCRA 900 [1967], and many others, until the matter of
payment of interest became an established part of every case where taking and payment were not
contemporaneously made.
Hence, in Republic v. Court of Appeals,53 the Court simply imposed legal interest of 12% per
annum in the just compensation.
In Land Bank of the Philippines v. Imperial,54 12% legal interest was awarded in favor of the
landowner as damages for the delay in the payment of the just compensation.
Nepomuceno v. City of Surigao55 and Ansaldo v. Tantuico, Jr.56 invoked by AFC/HPI contain
the declaration that "the value of the property expropriated shall earn interest at the legal rate
until full payment is effected."
All given, it now becomes clear that the Court has consistently awarded the landowner legal
interest of 12% per annum from the time of the taking of the property until fully paid of his just
compensation which must be "real, substantial, full and ample."57 We have constantly
accentuated that the property owner is made to suffer the consequences of being immediately
deprived of his land. Worse still, he is being made to wait before actually receiving the just
amount extremely necessary to cope with his loss.
Applying the 12% rate on the balance of just compensation due AFC and HPI, from the taking of
their properties on 9 December 1996, until the full payment of said balance by the LBP on 9 May
2008, AFC and HPI claim interest in the total amount of P1,331,124,223.05, computed as
follows:
Just Compensation P971,409,831.68

Legal Interest from 12/09/1996
To 05/09/2008 @ 12% per annum
12/09/1996 to 12/31/1996 23 days 7,345,455.17
01/01/1997 to 12/31/2007 11 years 1,282,260,977.82
01/01/2008 to 05/09/2008 130 days 41,517,790.07 1,331,124,223.0558
Law and jurisprudence empower courts to equitably reduce interest rates59 and penalty charges.
Under Article 1229 of the Civil Code, "[t]he judge shall equitably reduce the penalty when the
principal obligation has been partly or irregularly complied with by the debtor." Article 1229 of
the Civil Code provides that the court shall equitably reduce the penalty when the principal
obligation has been partly or irregularly complied with by the debtor. And, even if there has been
no performance, the penalty may also be reduced if it is iniquitous or leonine. While there may
be no more ceiling on interest rates on obligations, it does not mean that creditors have carte
blanche authority to impose interest rates to levels which will either enslave the debtors or lead
to a hemorrhaging of the latter’s assets.60
In the following cases, the court saw it fit to reduce interest charges.
In Palmares v. Court of Appeals,61 the Court found that the penalty charge of 3% per month and
attorney’s fees equivalent to 25% of the total amount due are highly inequitable and
unreasonable, considering that from the principal loan of P30,000.00, the amount of P16,300.00
had already been paid even before the filing of the case.
Similarly, in Asia Trust Development v. Concept Trading Corporation,62 the Court, given that
the principal obligation had been partially complied with by the respondent, affirmed the
reduction of the penalty charges from 36% to 3% per annum. The Court, in Filinvest v. Court of
Appeals,63 deemed that the penalty of P15,000.00 per day, resulting in the aggregate amount of
P3,990,000.00, was steep and excessive, and reduced it to P1,881,867.66, considering that there
had been substantial compliance in good faith on the part of the party obliged to pay penalty.
The Court decreased the 3% monthly or 36% annual interest penalty in Segovia Development
Corporation v. J.L. Dumatol,64 to 12% interest per annum, consistent with fairness and equity,
taking into account that J.L. Dumatol had already substantially complied with its contractual
obligation.
In Patron v. Union Bank of the Philippines,65 the Court found the 2% monthly or 24% annual
penalty charge unconscionable under the circumstances attendant to the case; i.e., the spouses
Patron had made partial payments on their loan and had requested the restructuring of the same.
Consequently, the Court fixed the interest rate in the case at 12% per annum.
In Diño v. Jardines,66 the Court found that 9% and 10% monthly interest rates (or 108% and
120% annual interest rates) on the principal loan of P165,000.00 are void for being clearly
excessive, iniquitous, unconscionable and exorbitant. The Court brushed aside the fact that
Jardines agreed to the said rates, although she knew the same to be exorbitant, and considered
that she was constrained to do so, as she was badly in need of money at that time. The Court
reduced the exorbitant rates to the 12% legal interest rate.
In the exercise of its sound discretion, this Court, in Florentino v. Supervalue, Inc.,67 tempered
the penalty for the breaches committed by Florentino to 50% of the amount of the security
deposits. The forfeiture of all the security deposits, in the sum of P192,000.00, was clearly a
usurious and iniquitous penalty for the transgressions committed by petitioner therein.
Supervalue, Inc. was, therefore, obligated to return 50% of P192,000.00 to the petitioner.
The Court likewise equitably reduced, in Bulos, Jr. v. Yasuma,68 the excessive and
unconscionable interest rate of 48% per annum to 12% per annum.69
In Barons Marketing Corporation v. Court of Appeals,70 the 12% annual interest alone amounted
to P4,500,000.00, exceeding the principal debt of P2,000,000.00. On top of the interest, Barons
Marketing Corp. was also held liable by the Court of Appeals for attorney’s fees and collection
fees equivalent to 25% of the total amount due, which included interest. Finding the attorney’s
fees and collection fees manifestly exorbitant, the Court reduced the same to 10% of the
principal. The same situation was extant in Development Bank of the Philippines v. Court of
Appeals.71 The Court noted therein that the interests paid by debtor spouses De la Peña, which
amounted to P233,361.50,30 inclusive of the regular interest, additional interest, penalty charges,
and interest on advances, were already more than their principal obligation in the amount of
P207,000.00. The additional interest of 18% alone amounted to P106,853.45,31 which was
almost half of what was already paid by the spouses De la Peña. Thus, the Court reduced the
additional interest of 18% per annum to 10% per annum.
In Lo v. Court of Appeals,72 the stipulated penalty in the lease agreement for failure by the lessee
National Onion Growers Cooperative Marketing Association, Inc. (NOGCMAI) to pay the rent
on the leased property was P5,000.00 for each day of delay or P150,000.00 per month, an
amount five times the monthly rent. This penalty was not only exorbitant but also
unconscionable, since NOGCMAI was delayed in surrendering the leased property because of its
well-founded belief that its right of preemption to purchase the said property had been violated.
Considering further that NOGCMAI was an agricultural cooperative, collectively owned by
farmers with limited resources, ordering it to pay a penalty of P150,000.00 per month on top of
the monthly rent of P30,000.00 would seriously deplete its income and drive it to bankruptcy.
Consequently, the Court reduced the reward of penalty damages from P5,000.00 to P1,000.00 for
each day of delay.
Of the same tenor is Rizal Commercial Banking Corporation v. Court of Appeals.73 The factory
of therein debtor, Goyu & Sons, Inc. (GSI), was gutted in a fire. Its creditors, including the Rizal
Banking Insurance Corporation (RCBC), filed their respective claims upon the proceeds of the
insurance policies of GSI. Taking into account the pitiful financial condition of GSI, the Court
ruled the surcharge rate ranging anywhere from 9% to 27%, plus the penalty charge of 36%, to
be definitely iniquitous and unconscionable. The Court tempered these rates to 2% and 3%,
respectively.
In all the aforementioned, the Court, in the exercise of its equity jurisdiction, reduced interest
rates on penalty charges with due regard to the particular circumstances of each case.
We recognize that we are not at liberty to overlook settled jurisprudence on the appropriate
amount of legal interest to be awarded in just compensation which is due AFC and HPI, but for
several reasons which we have taken stock of, it would be unconscionable to apply the full force
of the law on LBP.
We award on the basis of fairness and equity a reduced amount of legal interest, considering the
following circumstances:
(1) Given that the LBP already fully paid a considerable amount of just compensation to
AFC and HPI, even prior to the finality of the judgment against it, a reduced amount of
legal interest would be consistent with fairness and equity.74 Jus respicit acquitatem. Law
regards equity. In this case, LBP already made a full payment of just compensation to
AFC and HPI on 9 May 2008 in the amount of P1,383,179,00 even before the decision of
this court became final and executory on 16 May 2008.
(2) Even if there has been no performance, the penalty may also be reduced by the courts
if it is iniquitous or unconscionable. Whether an interest rate is reasonable or iniquitous is
addressed to the sound discretion of the Court, depending on the circumstances of each
case. Given that the legal interest which AFC and HPI seek to recover amounts to
P1,331,124,223.05, which amount is almost equal to the cost of just compensation,75
legal interest may be reduced on this ground, as the Court has previously reduced interest
rates in cases where these were equal to or exceeded the principal amount of the debt.76
(3) Iniquitous and unconscionable interest rates are contrary to morals.77
(4) Interest rates should not be leonine or result in a hemorrhaging of assets of the LBP.78
Thus, given the particular circumstances of the instant petition, legal interest should be awarded
to AFC and HPI pro hac vice,79 in the amount of P400,000,000.00. To the Court, 30% more or
less of the total amount of legal interest that the parties seek to recover is already a fair and just
amount.
In view of all the foregoing, LBP should be directed to pay AFC and HPI the legal interest due
the latter upon finality of this resolution within a period of six (6) months.
As to the issue of attorney’s fees, the minority finds no reason to reverse its findings as stated in
the Resolution dated 19 December 2007, that AFC and HPI failed to substantiate their
entitlement to such an award.
The foregoing considered, I dissent from the view of the majority.
I therefore vote to PARTIALLY GRANT the Second Motion for Reconsideration of AFC and
HPI, on the resolution of this Court dated 19 December 2007 in that Land Bank of the
Philippines be ORDERED to pay AFC and HPI the amount of P400,000,000.00 as interest to the
principal amount of P971,409,831.68 due the latter upon finality of this Resolution within a
period of six (6) months.
MINITA V. CHICO-NAZARIO
Associate Justice
Footnotes
1
CA rollo, pp. 131-133.
2
Id. at 158-160.
3
437 Phil. 347 (2002).
4
Rollo, p. 51.
5
Id. at 440.
6
Id. at 442-488.
7
Id. at 621.
8
Apo Fruits Corporation v. Court of Appeals, G.R. No. 164195, 19 December 2007, 541
SCRA 117, 145-146.
9
Rollo, p. 1362.
10
Id. at 1322, 1329.
11
Id. at 1339-1331.
12
13 Phil. 34 (1909). The Supreme Court held in this case that the defendant, the owner,
was deprived of the use of his property from the 2nd day of February 1907, until the 19th
day of July 1908. He lost the use of it for this time, and it cannot be said that he received
just compensation for it if he was not allowed interest upon the value of the property
during that time.
13
433 Phil. 106 (2002). This Court held:
If property is taken for public use before compensation is deposited with the court
having jurisdiction over the case, the final compensation must include interest on
its just value, to be computed from the time property is taken to the time when
compensation is actually paid or deposited with the court.
14
464 Phil. 83 (2004). In this case the Supreme Court held that the imposition of interest
is in the nature of damages for delay in payment, which in effect makes the obligation on
the part of the government one of forbearance.
15
G.R. No. 157753, 12 February 2007, 515 SCRA 449. The Supreme Court held in this
case that just compensation embraces not only the correct determination of the amount to
be paid to the owner, but also its payment within a reasonable time from taking. Legal
interest of 12% per annum in the nature of damages is proper.
16
Rollo, p. 1326.
17
Id. at 1350.
18
Id. at 1354-1355.
19
Id. at 1360.
20
Id. at 1398.
21
Id. at 1411.
22
Temic Seiconductories, Inc., Employees Union v. Federation of Free Workers, G.R.
No. 160993, 20 May 2008, 554 SCRA 122, 134.
23
Rollo, p. 1362.
24
Ang v. Republic, G.R. No. 175788, 30 June 2009; Vios v. Pantangco, Jr., G.R. No.
163103, 6 February 2009.
25
Tan Tiac Chiong v. Hon. Cosico, 434 Phil. 753, 762 (2002).
26
Id., citing Muñoz v. Court of Appeals, 379 Phil. 809 (2000).
27
G.R. No. 162335 and No. 162605, 18 December 2008, 574 SCRA 468.
28
482 Phil. 903, 915 (2004).
29
357 Phil. 36, 52 (1998).
30
The grant of a second or further motion for reconsideration by this court in meritorious
cases is not without precedents. The Court reversed its judgment on a second motion for
reconsideration in San Miguel Corporation v. National Labor Relations Commission,
G.R. No. 82467, 29 June 1989, 174 SCRA 510; Galman v. Sandiganbayan, 228 Phil. 42
(1986); Philippine Consumers Foundation, Inc. v. National Telecommunications
Commission, 216 Phil. 185 (1984); Republic v. De Los Angeles, 148-B Phil. 902 (1971)
and on a third motion for reconsideration in Vir-Jen Shipping and Marine Services, Inc.
v. National Labor Relations Commission, 210 Phil. 482 (1983), the Court modified or
amended on a second motion for reconsideration its ruling in Cathay Pacific Airways,
Ltd. v. Romillo, Jr., G.R. No. L-64276, 12 August 1986, 143 SCRA 396; Cosio v. Palilio,
G.R. No. L-18452, 20 May 1966, 17 SCRA 207.
31
Supra note 13 at 118-119.
32
Republic v. Lim, G.R. No. 161656, 29 June 2005, 462 SCRA 271, 278.
33
Land Bank of the Philippines v. Heirs of Angel T. Domingo, G.R. No. 168533, 4
February 2008, 543 SCRA 627, 640.
34
G.R. No. 150640, 22 March 2007, 518 SCRA 649, 666.
35
Apo Fruits Corporation v. Court of Appeals, G.R. No. 164195, 6 February 2007, 514
SCRA 537, 542.
36
Land Bank of the Philippines v. Chico, 13 March 2009.
37
Republic v. Gonzales, 94 Phil. 956, 963 (1954).
38
Republic v. Lim, supra note 32.
39
Id. at 280.
40
Estate of Salud Jimenez v. Philippine Export Processing Zone, 402 Phil. 271 (2001);
Land Bank of the Philippines v. Court of Appeals, 327 Phil. 1047, 1054 (1996), quoting
Municipality of Makati v. Court of Appeals, G.R. Nos. 89898-99, 1 October 1990, 190
SCRA 207, 213.
41
Manila Railroad Co. v. Velasquez, 32 Phil. 286, 313 (1915).
42
Province of Tayabas v. Perez, 66 Phil. 467, 469 (1938); J.M. Tuason & Co., Inc. v.
Land Tenure Administration, G.R. No. L-21064, 18 February 1970, 31 SCRA 413, 432;
Manotok v. National Housing Authority, G.R. Nos. L-55166-67, 21 May 1987, 150
SCRA 89.
43
Apo Fruits Corporation v. Court of Appeals, supra note 35 at 557-558.
44
45
Estate of Salud Jimenez v. Philippine Export Processing Zone, G.R. No. 137285, 16
January 2001, 349 SCRA 240; Land Bank of the Philippines v. Imperial, supra note 15;
Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, supra note 33;
Republic v. Court of Appeals, supra note 13; Land Bank of the Philippines v. Lim, G.R.
No. 171941, 2 August 2007, 529 SCRA 129, 136.
46
Santos Ventura Hocorma Foundation, Inc. v. Santos, 484 Phil. 447, 456 (2004); Land
Bank of the Philippines v. Wycoco, supra note 14; Reyes v. National Housing Authority,
443 Phil. 603 (2003).
47
Santos Ventura Hocorma Foundation, Inc. v. Santos, id.; Land Bank of the Philippines
v. Imperial, supra note 15.
48
In Sigaan v. Villanueva, G.R. No. 173227, 20 January 2009, citing Eastern Shipping
Lines v. Court of Appeals, G.R. No. 97412, 12 July 1994, 234 SCRA 78, 96-97, this
Court declared that when the judgment of the court awarding a sum of money becomes
final executory, the rate of legal interest, whether it is a loan/forbearance of money or not
shall be 12% per annum from such finality until its satisfaction, this interim period being
deemed equivalent to a forbearance of credit.
49
Supra note 46.
50
30 CJS 230, cited in Benguet Consolidated, Inc. v. Republic, 227 Phil. 422, 436
(1986), citing Republic v. Juan, 180 Phil. 398 (1979).
51
27 Am Jur. 112; National Housing Authority v. Heirs of Isidro Guivelondo, G.R. No.
166518, 16 June 2009, Urtula v. Republic, 130 Phil. 449, 458 (1968).
52
53
Supra note 13.
54
Supra note 15.
55
G.R. No. 146091, 28 July 2008, 560 SCRA 41.
56
G.R. No. 50147, 2 August 1990, 188 SCRA 300.
57
Id.
58
Rollo, p. 1337.
59
Land Bank of the Philippines v. David, G.R. No. 176344, 22 August 2008, 563 SCRA
172, 178.
60
See Spouses Solangon v. Salazar, 412 Phil. 816, 822 (2001).
61
G.R. No. 126490, 31 March 1998, 288 SCRA 422, 445.
62
G.R. No. 130759, 20 June 2003, 404 SCRA 449, 461.
63
Filinvest v. Court of Appeals, G.R. No. 138980, 20 September 2005, 470 SCRA 260,
274.
64
416 Phil. 528, 541 (2001).
65
G.R. No. 177348, 17 October 2008, 569 SCRA 738, 746.
66
G.R. No. 145871, 31 January 2006, 481 SCRA 226, 238.
67
G.R. No. 172384, 12 September 2007, 533 SCRA 156, 167-168.
68
G.R. No. 164159, 17 July 2007, 527 SCRA 727, 742.
69
Ruiz v. Court of Appeals, 449 Phil. 419, 433-434 (2003), which, in turn, cited Medel v.
Court of Appeals, 359 Phil. 820, 829-830 (1998); Garcia v. Court of Appeals, G.R. Nos.
L-82282-83, 24 November 1988, 167 SCRA 815, 830-831; Spouses Bautista v. Pilar
Development Corporation, 371 Phil. 533, 543-544 (1999); Spouses Solangon v. Salazar,
supra note 59 at 822-823.
70
349 Phil. 769, 779 (1998).
71
398 Phil. 413 (2000).
72
458 Phil. 414 (2003).
73
352 Phil. 101 (1998).
74
Spouses Jose T. Valenzuela and Gloria Valenzuela v. Kalayaan Development and
Industrial Corporation, G.R. No. 163244, 22 June 2009.
75
Total amount of just compensation is P1,383,179,00.
76
Barons Marketing Corporation v. Court of Appeals, supra note 70; Development Bank
of the Philippines v. Court of Appeals, supra note 71.
77
Dino v. Jardines, G.R. No. 145871, 31 January 2006, 481 SCRA 226, 238.
78
Spouses Solangon v. Salazar, supra note 60.
79
Republic v. Hidalgo, G.R. No. 161657, 4 October 2007, 534 SCRA 619; Land Bank of
the Philippines v. Chico, supra note 36.
CONCURRING OPINION
ABAD, J.:
I fully concur with Justice Lucas P. Bersamin’s ponencia but wish to add a few of my own
thoughts.
First. The Third Division of the Court that originally decided the case purposely deleted the
lower court’s award of interest because of a finding that respondent Land Bank of the Philippines
(Land Bank) was not guilty of delay in trying to come to a settlement with petitioners Apo Fruits
Corp. and Huo Plantation, Inc. on the compensation due the latter. Courts have invariably
adjusted or deleted the interest on the judgment debt as the circumstances and equity dictates.
Here, the Third Division consciously deleted the award of interest for a stated reason. The delay
in payment, the Third Division found, was not Land Bank’s fault. It would, therefore, be
unreasonable to restore such award of interest in a second motion for reconsideration, after entry
of judgment had been made, when there is no showing that the Third Division’s factual findings
are incorrect.
Second. Not only has the judgment of this Court become final and executory and an entry of
judgment made, Land Bank already complied with the same by paying the judgment amounts. Of
course, on occasions, the Court has resorted to the extreme measure of reopening final and
executory judgments. But those are extreme cases where the issues have a telling impact on
jurisprudence or the public interest. The one before the Court is not an extreme case. It involves
no life or liberty, only the respondent companies’ pockets. What is more, the farmers will
ultimately shoulder this huge and fantastic additional cost. Yet, like Land Bank, they did nothing
to delay payment.
ROBERTO A. ABAD
Associate Justice
2010 ENBANC DECISIONS

SUPREME COURT
Manila
EN BANC
G.R. No. 191002 March 17, 2010
ARTURO M. DE CASTRO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL -
ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION

TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.;
NATIONAL UNION OF PEOPLE'S LAWYERS; MARLOU B. UBANO; INTEGRATED
BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its
Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own
personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L.
BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE;
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL
GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG
SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN
LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE
OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN
RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP)
CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE
PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN
MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA
GUEVARRA; WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN
TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by
YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP;
TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA;
MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON.
Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY.

ROLAND B. INTING (IBP Governor-Eastern Visayas), Petitioners,
vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-
DECISION
BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days
after the coming presidential elections on May 10, 2010. Even before the event actually happens,
it is giving rise to many legal dilemmas. May the incumbent President appoint his successor,
considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the
President or Acting President from making appointments within two months immediately before
the next presidential elections and up to the end of his term, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger
public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the
Constitution, which provides that any vacancy in the Supreme Court shall be filled within 90
days from the occurrence thereof, to the matter of the appointment of his successor? May the
Judicial and Bar Council (JBC) resume the process of screening the candidates nominated or
being considered to succeed Chief Justice Puno, and submit the list of nominees to the incumbent
President even during the period of the prohibition under Section 15, Article VII? Does
mandamus lie to compel the submission of the shortlist of nominees by the JBC?
Precís of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 1910021
and G.R. No. 1911492 as special civil actions for certiorari and mandamus, praying that the JBC
be compelled to submit to the incumbent President the list of at least three nominees for the
position of the next Chief Justice.
In G.R. No. 191032,3 Jaime N. Soriano, via his petition for prohibition, proposes to prevent the
JBC from conducting its search, selection and nomination proceedings for the position of Chief
Justice.
In G.R. No. 191057, a special civil action for mandamus,4 the Philippine Constitution
Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of
Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because
the incumbent President is not covered by the prohibition that applies only to appointments in the
Executive Department.
In Administrative Matter No. 10-2-5-SC,5 petitioner Estelito M. Mendoza, a former Solicitor

General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15,
Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,6 which the Court consolidated on March 9, 2010 with the petitions earlier
filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines
(IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and
restrain the JBC from submitting a list of nominees for the position of Chief Justice to the
President for appointment during the period provided for in Section 15, Article VII.
All the petitions now before the Court pose as the principal legal question whether the incumbent
President can appoint the successor of Chief Justice Puno upon his retirement. That question is
undoubtedly impressed with transcendental importance to the Nation, because the appointment
of the Chief Justice is any President’s most important appointment.
A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62,
Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),7 by which the Court
held that Section 15, Article VII prohibited the exercise by the President of the power to appoint
to judicial positions during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by
legal luminaries – one side holds that the incumbent President is prohibited from making
appointments within two months immediately before the coming presidential elections and until
the end of her term of office as President on June 30, 2010, while the other insists that the
prohibition applies only to appointments to executive positions that may influence the election
and, anyway, paramount national interest justifies the appointment of a Chief Justice during the
election ban – has impelled the JBC to defer the decision to whom to send its list of at least three
nominees, whether to the incumbent President or to her successor.8 He opines that the JBC is
thereby arrogating unto itself "the judicial function that is not conferred upon it by the
Constitution," which has limited it to the task of recommending appointees to the Judiciary, but
has not empowered it to "finally resolve constitutional questions, which is the power vested only
in the Supreme Court under the Constitution." As such, he contends that the JBC acted with
grave abuse of discretion in deferring the submission of the list of nominees to the President; and
that a "final and definitive resolution of the constitutional questions raised above would diffuse
(sic) the tension in the legal community that would go a long way to keep and maintain stability
in the judiciary and the political system."9
In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion
amounting to lack or excess of its jurisdiction when it resolved unanimously on January 18, 2010
to open the search, nomination, and selection process for the position of Chief Justice to succeed
Chief Justice Puno, because the appointing authority for the position of Chief Justice is the
Supreme Court itself, the President’s authority being limited to the appointment of the Members
of the Supreme Court. Hence, the JBC should not intervene in the process, unless a nominee is
not yet a Member of the Supreme Court.10
For its part, PHILCONSA observes in its petition in G.R. No. 191057 that "unorthodox and
exceptional circumstances spawned by the discordant interpretations, due perhaps to a
perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of
the Constitution" have bred "a frenzied inflammatory legal debate on the constitutional
provisions mentioned that has divided the bench and the bar and the general public as well,
because of its dimensional impact to the nation and the people," thereby fashioning
"transcendental questions or issues affecting the JBC’s proper exercise of its "principal function
of recommending appointees to the Judiciary" by submitting only to the President (not to the
next President) "a list of at least three nominees prepared by the Judicial and Bar Council for
every vacancy" from which the members of the Supreme Court and judges of the lower courts
may be appointed."11 PHILCONSA further believes and submits that now is the time to revisit
and review Valenzuela, the "strange and exotic Decision of the Court en banc."12
Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC "to
immediately transmit to the President, within a reasonable time, its nomination list for the
position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in
compliance with its mandated duty under the Constitution" in the event that the Court resolves
that the President can appoint a Chief Justice even during the election ban under Section 15,
Article VII of the Constitution.13
The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the
"JBC has initiated the process of receiving applications for the position of Chief Justice and has
in fact begun the evaluation process for the applications to the position," and "is perilously near
completing the nomination process and coming up with a list of nominees for submission to the
President, entering into the period of the ban on midnight appointments on March 10, 2010,"
which "only highlights the pressing and compelling need for a writ of prohibition to enjoin such
alleged ministerial function of submitting the list, especially if it will be cone within the period
of the ban on midnight appointments."14
Antecedents
These cases trace their genesis to the controversy that has arisen from the forthcoming
compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the
presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that "vacancy
shall be filled within ninety days from the occurrence thereof" from a "list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy."
On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC,
addressed a letter to the JBC, requesting that the process for nominations to the office of the
Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution,15 which reads:
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of
filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the
incumbent Chief Justice Honorable Reynato S. Puno.
It will publish the opening of the position for applications or recommendations; deliberate on the
list of candidates; publish the names of candidates; accept comments on or opposition to the
applications; conduct public interviews of candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in the light of the
Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on
the matter.
18 January 2010.
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for application or recommendation, and
published for that purpose its announcement dated January 20, 2010,16 viz:
The Judicial and Bar Council (JBC) announces the opening for application or recommendation,
of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17
May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be submitted not later than 4 February
2010 (Thursday) to the JBC Secretariat xxx:
The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The
Philippine Star.17
Conformably with its existing practice, the JBC "automatically considered" for the position of
Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate
Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita
Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio
Eduardo B. Nachura. However, the last two declined their nomination through letters dated
January 18, 2010 and January 25, 2010, respectively.18
Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for
Luzon, applied, but later formally withdrew his name from consideration through his letter dated
February 8, 2010. Candidates who accepted their nominations without conditions were Associate
Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice
Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who
accepted their nominations with conditions were Associate Justice Antonio T. Carpio and
Associate Justice Conchita Carpio Morales.19 Declining their nominations were Atty. Henry
Villarica (via telephone conversation with the Executive Officer of the JBC on February 5, 2010)
and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with the Executive Officer of the
JBC on February 8, 2010).20
The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet
the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of
the Ombudsman (due to cases pending in the Office of the Ombudsman).21
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing
the names of the following candidates to invite the public to file their sworn complaint, written
report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio,
Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De
Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in
the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.22
Issues
Although it has already begun the process for the filling of the position of Chief Justice Puno in
accordance with its rules, the JBC is not yet decided on when to submit to the President its list of
nominees for the position due to the controversy now before us being yet unresolved. In the
meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs upon
the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also
among non-legal quarters, and brought out highly disparate opinions on whether the incumbent
President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela,
which involved the appointments of two judges of the Regional Trial Court, the Court addressed
this issue now before us as an administrative matter "to avoid any possible polemics concerning
the matter," but he opines that the polemics leading to Valenzuela "would be miniscule [sic]
compared to the "polemics" that have now erupted in regard to the current controversy," and that
unless "put to a halt, and this may only be achieved by a ruling from the Court, the integrity of
the process and the credibility of whoever is appointed to the position of Chief Justice, may
irreparably be impaired."23
Accordingly, we reframe the issues as submitted by each petitioner in the order of the
chronological filing of their petitions.
G.R. No. 191002
a. Does the JBC have the power and authority to resolve the constitutional question of
whether the incumbent President can appoint a Chief Justice during the election ban
period?
b. Does the incumbent President have the power and authority to appoint during the
election ban the successor of Chief Justice Puno when he vacates the position of Chief
Justice on his retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc?
G.R. No. 191057
a. Is the constitutional prohibition against appointment under Section 15, Article VII of
the Constitution applicable only to positions in the Executive Department?
b. Assuming that the prohibition under Section 15, Article VII of the Constitution also
applies to members of the Judiciary, may such appointments be excepted because they
are impressed with public interest or are demanded by the exigencies of public service,
thereby justifying these appointments during the period of prohibition?
c. Does the JBC have the authority to decide whether or not to include and submit the
names of nominees who manifested interest to be nominated for the position of Chief
Justice on the understanding that his/her nomination will be submitted to the next
President in view of the prohibition against presidential appointments from March 11,
2010 until June 30, 2010?
A. M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution apply to appointments to positions in
the Judiciary under Section 9, Article VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after

March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno
retires on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the submission of the short list to
President Gloria Macapagal-Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of nominees to the incumbent
President without committing a grave violation of the Constitution and jurisprudence
prohibiting the incumbent President from making midnight appointments two months
immediately preceding the next presidential elections until the end of her term?
b. Is any act performed by the JBC, including the vetting of the candidates for the
position of Chief Justice, constitutionally invalid in view of the JBC's illegal composition
allowing each member from the Senate and the House of Representatives to have one
vote each?
On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG)
to comment on the consolidated petitions, except that filed in G.R. No. 191342.
On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of
the process for the selection of the nominees for the position of Chief Justice would be the public
interview of the candidates and the preparation of the short list of candidates, "including the
interview of the constitutional experts, as may be needed."24 It stated:25
Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper
appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides
that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence
thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential
appointments "two (2) months immediately before the next presidential elections and up to the
end of his term" and Section 261 (g), Article XXII of the Omnibus Election Code of the
Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will
be guided by its decision in these consolidated Petitions and Administrative Matter.
On February 26, 2010, the OSG also submitted its comment, essentially stating that the
incumbent President can appoint the successor of Chief Justice Puno upon his retirement by May
17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing
its principal function under the Constitution to recommend appointees in the Judiciary; (b) the
JBC's function to recommend is a "continuing process," which does not begin with each vacancy
or end with each nomination, because the goal is "to submit the list of nominees to Malacañang
on the very day the vacancy arises";26 the JBC was thus acting within its jurisdiction when it
commenced and set in motion the process of selecting the nominees to be submitted to the
President for the position of Chief Justice to be vacated by Chief Justice Puno;27 (c) petitioner
Soriano's theory that it is the Supreme Court, not the President, who has the power to appoint the
Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase "members of the
Supreme Court" found in Section 9, Article VIII of the Constitution as referring only to the
Associate Justices, to the exclusion of the Chief Justice; 28 (d) a writ of mandamus can issue to
compel the JBC to submit the list of nominees to the President, considering that its duty to
prepare the list of at least three nominees is unqualified, and the submission of the list is a
ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the
nature of whose principal function is executive, is not vested with the power to resolve who has
the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the
list from the President; 29 and (e) a writ of mandamus cannot issue to compel the JBC to include
or exclude particular candidates as nominees, considering that there is no imperative duty on its
part to include in or exclude from the list particular individuals, but, on the contrary, the JBC's
determination of who it nominates to the President is an exercise of a discretionary duty.30
The OSG contends that the incumbent President may appoint the next Chief Justice, because the
prohibition under Section 15, Article VII of the Constitution does not apply to appointments in
the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90
days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; 31 that in
their deliberations on the mandatory period for the appointment of Supreme Court Justices, the
framers neither mentioned nor referred to the ban against midnight appointments, or its effects
on such period, or vice versa;32 that had the framers intended the prohibition to apply to Supreme
Court appointments, they could have easily expressly stated so in the Constitution, which
explains why the prohibition found in Article VII (Executive Department) was not written in
Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample
restrictions or limitations on the President's power to appoint members of the Supreme Court to
ensure its independence from "political vicissitudes" and its "insulation from political
pressures,"33 such as stringent qualifications for the positions, the establishment of the JBC, the
specified period within which the President shall appoint a Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation
now refers to the appointment of the next Chief Justice to which the prohibition does not apply;
that, at any rate, Valenzuela even recognized that there might be "the imperative need for an
appointment during the period of the ban," like when the membership of the Supreme Court
should be "so reduced that it will have no quorum, or should the voting on a particular important
question requiring expeditious resolution be divided";34 and that Valenzuela also recognized that
the filling of vacancies in the Judiciary is undoubtedly in the public interest, most especially if
there is any compelling reason to justify the making of the appointments during the period of the
prohibition.35
Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent
President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving sensitive
political issues is "quite expected";36 (b) the Court acts as the Presidential Electoral Tribunal
(PET), which, sitting en banc, is the sole judge of all contests relating to the election, returns, and
qualifications of the President and Vice President and, as such, has "the power to correct
manifest errors on the statement of votes (SOV) and certificates of canvass (COC)";37 (c) if
history has shown that during ordinary times the Chief Justice was appointed immediately upon
the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now
even more reason to appoint the next Chief Justice immediately upon the retirement of Chief
Justice Puno;38 and (d) should the next Chief Justice come from among the incumbent Associate
Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the
JBC to start the selection process for the filling up of the vacancy in accordance with the
constitutional mandate.39
On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to

wit:
(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera
(Corvera);40
(b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S.
Lim (Lim);
(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr.
(Tan);
(d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union

of People's Lawyers (NUPL);
(e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano
(Ubano);
(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the
Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P.
Torreon (IBP- Davao del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L.
Boiser (Boiser);
(h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of
BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M.
Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government
Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang
Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang
Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard
Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS)
Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the
Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines
(CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines
(SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);
(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta
Ann P. Rosales (Bello et al.); and
(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the

Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty.
Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita
Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana;
Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the
position that De Castro's petition was bereft of any basis, because under Section 15, Article VII,
the outgoing President is constitutionally banned from making any appointments from March 10,
2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno.
Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing
President if the constitutional prohibition is already in effect. Tan adds that the prohibition
against midnight appointments was applied by the Court to the appointments to the Judiciary
made by then President Ramos, with the Court holding that the duty of the President to fill the
vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the
submission of the list (for all other courts) was not an excuse to violate the constitutional
prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the
insistence that Valenzuela recognizes the possibility that the President may appoint the next
Chief Justice if exigent circumstances warrant the appointment, because that recognition is obiter
dictum; and aver that the absence of a Chief Justice or even an Associate Justice does not cause
epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist that
even without the successor of Chief Justice Puno being appointed by the incumbent President,
the Court is allowed to sit and adjudge en banc or in divisions of three, five or seven members at
its discretion; that a full membership of the Court is not necessary; that petitioner De Castro's
fears are unfounded and baseless, being based on a mere possibility, the occurrence of which is
entirely unsure; that it is not in the national interest to have a Chief Justice whose appointment is
unconstitutional and, therefore, void; and that such a situation will create a crisis in the judicial
system and will worsen an already vulnerable political situation.
ice is imperative for the stability of the judicial system and the political situation in the country
when the election-related questions reach the Court as false, because there is an existing law on
filling the void brought about by a vacancy in the office of Chief Justice; that the law is Section
12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any
other law; that a temporary or an acting Chief Justice is not anathema to judicial independence;
that the designation of an acting Chief Justice is not only provided for by law, but is also dictated
by practical necessity; that the practice was intended to be enshrined in the 1987 Constitution,
but the Commissioners decided not to write it in the Constitution on account of the settled
practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of
the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the
position as Acting Chief Justice prior to his official appointment as Chief Justice; that said filling
up of a vacancy in the office of the Chief Justice was acknowledged and even used by analogy in
the case of the vacancy of the Chairman of the Commission on Elections, per Brillantes v. Yorac,
192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession
has been repeatedly observed and has become a part of its tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election Code
penalizes as an election offense the act of any government official who appoints, promotes, or
gives any increase in salary or remuneration or privilege to any government official or employee
during the period of 45 days before a regular election; that the provision covers all appointing
heads, officials, and officers of a government office, agency or instrumentality, including the
President; that for the incumbent President to appoint the next Chief Justice upon the retirement
of Chief Justice Puno, or during the period of the ban under the Omnibus Election Code,
constitutes an election offense; that even an appointment of the next Chief Justice prior to the
election ban is fundamentally invalid and without effect because there can be no appointment
until a vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010.
Intervenor Boiser adds that De Castro's prayer to compel the submission of nominees by the JBC
to the incumbent President is off-tangent because the position of Chief Justice is still not vacant;
that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly
premature; that the proposed advance appointment by the incumbent President of the next Chief
Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there
is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between
the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled that the
appointments by the President of the two judges during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply
only to the appointments in the Executive Department, but also to judicial appointments,
contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and that
Valenzuela already interpreted the prohibition as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Soriano's contention that the power to appoint
the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless,
because the Chief Justice is also a Member of the Supreme Court as contemplated under Section
9, Article VIII; and that, at any rate, the term "members" was interpreted in Vargas v. Rillaroza
(G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of
the Supreme Court; that PHILCONSA's prayer that the Court pass a resolution declaring that
persons who manifest their interest as nominees, but with conditions, shall not be considered
nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that
such glaring inconsistency between the allegations in the body and the relief prayed for
highlights the lack of merit of PHILCONSA's petition; that the role of the JBC cannot be
separated from the constitutional prohibition on the President; and that the Court must direct the
JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected
President after the period of the constitutional ban against midnight appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC - because it is neither a judicial nor a quasi-
judicial body - has no duty under the Constitution to resolve the question of whether the
incumbent President can appoint a Chief Justice during the period of prohibition; that even if the
JBC has already come up with a short list, it still has to bow to the strict limitations under
Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto
itself a judicial function, but simply respecting the clear mandate of the Constitution; and that the
application of the general rule in Section 15, Article VII to the Judiciary does not violate the
principle of separation of powers, because said provision is an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBC's act of nominating
appointees to the Supreme Court is purely ministerial and does not involve the exercise of
judgment; that there can be no default on the part of the JBC in submitting the list of nominees to
the President, considering that the call for applications only begins from the occurrence of the
vacancy in the Supreme Court; and that the commencement of the process of screening of
applicants to fill the vacancy in the office of the Chief Justice only begins from the retirement on
May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the
submission or non-submission of the list of nominees to the President by the JBC is a matter of
right under law.
The main question presented in all the filings herein - because it involves two seemingly
conflicting provisions of the Constitution - imperatively demands the attention and resolution of
this Court, the only authority that can resolve the question definitively and finally. The
imperative demand rests on the ever-present need, first, to safeguard the independence,
reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has
been unnecessarily dragged into the harsh polemics brought on by the controversy; second, to
settle once and for all the doubt about an outgoing President's power to appoint to the Judiciary
within the long period starting two months before the presidential elections until the end of the
presidential term; and third, to set a definite guideline for the JBC to follow in the discharge of
its primary office of screening and nominating qualified persons for appointment to the
Judiciary.
Thus, we resolve.
Ruling of the Court

Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners have locus standi.
Black defines locus standi as "a right of appearance in a court of justice on a given question."41
In public or constitutional litigations, the Court is often burdened with the determination of the
locus standi of the petitioners due to the ever-present need to regulate the invocation of the
intervention of the Court to correct any official action or policy in order to avoid obstructing the
efficient functioning of public officials and offices involved in public service. It is required,
therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as
indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:42
The question on legal standing is whether such parties have "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."43 Accordingly, it has been held that the interest of a person assailing
the constitutionality of a statute must be direct and personal. He must be able to show, not only
that the law or any government act is invalid, but also that he sustained or is in imminent danger
of sustaining some direct injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act complained of.44
It is true that as early as in 1937, in People v. Vera,45 the Court adopted the direct injury test for
determining whether a petitioner in a public action had locus standi. There, the Court held that
the person who would assail the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result." Vera was
followed in Custodio v. President of the Senate,46 Manila Race Horse Trainers' Association v.
De la Fuente,47 Anti-Chinese League of the Philippines v. Felix,48 and Pascual v. Secretary of
Public Works.49
Yet, the Court has also held that the requirement of locus standi, being a mere procedural
technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in
Araneta v. Dinglasan,50 the Court liberalized the approach when the cases had "transcendental
importance." Some notable controversies whose petitioners did not pass the direct injury test
were allowed to be treated in the same way as in Araneta v. Dinglasan.51
In the 1975 decision in Aquino v. Commission on Elections,52 this Court decided to resolve the
issues raised by the petition due to their "far-reaching implications," even if the petitioner had no
personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been
adopted in several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws, regulations,
and rulings.53
However, the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner represents
the public in general. Although such petitioner may not be as adversely affected by the action
complained against as are others, it is enough that he sufficiently demonstrates in his petition that
he is entitled to protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus
standi. That is not surprising, for even if the issue may appear to concern only the public in
general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David
v. Macapagal-Arroyo,54 the Court aptly explains why:
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,55 where it was held that the
plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins:56 "In matter of mere public right, however…the people are the
real parties…It is at least the right, if not the duty, of every citizen to interfere and see that
a public offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer's suits, Terr v. Jordan57 held that "the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."58
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No.
191149) all assert their right as citizens filing their petitions on behalf of the public who are
directly affected by the issue of the appointment of the next Chief Justice. De Castro and Soriano
further claim standing as taxpayers, with Soriano averring that he is affected by the continuing
proceedings in the JBC, which involve "unnecessary, if not, illegal disbursement of public
funds."59
PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for
the purpose of defending, protecting, and preserving the Constitution and promoting its growth
and flowering. It also alleges that the Court has recognized its legal standing to file cases on
constitutional issues in several cases.60
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the
Philippine Bar engaged in the active practice of law, and a former Solicitor General, former
Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular Batasang
Pambansa, and former member of the Faculty of the College of Law of the University of the
Philippines.
The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines
(IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal standing to
enjoin the submission of the list of nominees by the JBC to the President, for "[a]n adjudication
of the proper interpretation and application of the constitutional ban on midnight appointments
with regard to respondent JBC's function in submitting the list of nominees is well within the
concern of petitioners, who are duty bound to ensure that obedience and respect for the
Constitution is upheld, most especially by government offices, such as respondent JBC, who are
specifically tasked to perform crucial functions in the whole scheme of our democratic
institution." They further allege that, reposed in them as members of the Bar, is a clear legal
interest in the process of selecting the members of the Supreme Court, and in the selection of the
Chief Justice, considering that the person appointed becomes a member of the body that has
constitutional supervision and authority over them and other members of the legal profession.61
The Court rules that the petitioners have each demonstrated adequate interest in the outcome of
the controversy as to vest them with the requisite locus standi. The issues before us are of
transcendental importance to the people as a whole, and to the petitioners in particular. Indeed,
the issues affect everyone (including the petitioners), regardless of one's personal interest in life,
because they concern that great doubt about the authority of the incumbent President to appoint
not only the successor of the retiring incumbent Chief Justice, but also others who may serve in
the Judiciary, which already suffers from a far too great number of vacancies in the ranks of trial
judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement of legal standing in
favor of any petitioner when the matter involved has transcendental importance, or otherwise
requires a liberalization of the requirement.62
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in
order to remove any obstacle or obstruction to the resolution of the essential issue squarely
presented herein. We are not to shirk from discharging our solemn duty by reason alone of an
obstacle more technical than otherwise. In Agan, Jr. v. Philippine International Air Terminals
Co., Inc.,63 we pointed out: "Standing is a peculiar concept in constitutional law because in some
cases, suits are not brought by parties who have been personally injured by the operation of a law
or any other government act but by concerned citizens, taxpayers or voters who actually sue in
the public interest." But even if, strictly speaking, the petitioners "are not covered by the
definition, it is still within the wide discretion of the Court to waive the requirement and so
remove the impediment to its addressing and resolving the serious constitutional questions
raised."64
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe
for adjudication, considering that although the selection process commenced by the JBC is going
on, there is yet no final list of nominees; hence, there is no imminent controversy as to whether
such list must be submitted to the incumbent President, or reserved for submission to the
incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial
determination, pointing out that petitioner De Castro has not even shown that the JBC has
already completed its selection process and is now ready to submit the list to the incumbent
President; and that petitioner De Castro is merely presenting a hypothetical scenario that is
clearly not sufficient for the Court to exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castro's petition rests on an overbroad and
vague allegation of political tension, which is insufficient basis for the Court to exercise its
power of judicial review.
Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on
what the JBC and the President should do, and are not invoking any issues that are justiciable in
nature.
Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of
opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken
by the JBC, but simply avers that the conditional manifestations of two Members of the Court,
accented by the divided opinions and interpretations of legal experts, or associations of lawyers
and law students on the issues published in the daily newspapers are "matters of paramount and
transcendental importance to the bench, bar and general public"; that PHILCONSA fails not only
to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific
action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a
controversy or conflict of rights, but, instead, prays that the Court should "rule for the guidance
of" the JBC; that the fact that the Court supervises the JBC does not automatically imply that the
Court can rule on the issues presented in the Mendoza petition, because supervision involves
oversight, which means that the subordinate officer or body must first act, and if such action is
not in accordance with prescribed rules, then, and only then, may the person exercising oversight
order the action to be redone to conform to the prescribed rules; that the Mendoza petition does
not allege that the JBC has performed a specific act susceptible to correction for being illegal or
unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to
exercise its power of supervision to correct a wrong act by the JBC, but to declare the state of the
law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy that is ripe for judicial
determination. The reality is that the JBC already commenced the proceedings for the selection
of the nominees to be included in a short list to be submitted to the President for consideration of
which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is
not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the list of nominees to the incumbent
outgoing President or to the next President, makes the situation ripe for judicial determination,
because the next steps are the public interview of the candidates, the preparation of the short list
of candidates, and the "interview of constitutional experts, as may be needed."
A part of the question to be reviewed by the Court is whether the JBC properly initiated the
process, there being an insistence from some of the oppositors-intervenors that the JBC could
only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of
course, whether the JBC may resume its process until the short list is prepared, in view of the
provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one
from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an
Associate Justice) within 90 days from the occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not be doubted. The challenges to
the authority of the JBC to open the process of nomination and to continue the process until the
submission of the list of nominees; the insistence of some of the petitioners to compel the JBC
through mandamus to submit the short list to the incumbent President; the counter-insistence of
the intervenors to prohibit the JBC from submitting the short list to the incumbent President on
the ground that said list should be submitted instead to the next President; the strong position that
the incumbent President is already prohibited under Section 15, Article VII from making any
appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and
the contrary position that the incumbent President is not so prohibited are only some of the real
issues for determination. All such issues establish the ripeness of the controversy, considering
that for some the short list must be submitted before the vacancy actually occurs by May 17,
2010. The outcome will not be an abstraction, or a merely hypothetical exercise. The resolution
of the controversy will surely settle - with finality - the nagging questions that are preventing the
JBC from moving on with the process that it already began, or that are reasons persuading the
JBC to desist from the rest of the process.
We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal
issue to ripe for judicial determination by the Court. It is enough that one alleges conduct
arguably affected with a constitutional interest, but seemingly proscribed by the Constitution. A
reasonable certainty of the occurrence of the perceived threat to a constitutional interest is
sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before
it to enable it to intelligently adjudicate the issues.65 Herein, the facts are not in doubt, for only
legal issues remain.
Substantive Merits
Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the
Supreme Court or to other appointments to the Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence thereof.
In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting,
submit that the incumbent President can appoint the successor of Chief Justice Puno upon his
retirement on May 17, 2010, on the ground that the prohibition against presidential appointments
under Section 15, Article VII does not extend to appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional Commission reveal that the framers
devoted time to meticulously drafting, styling, and arranging the Constitution. Such
meticulousness indicates that the organization and arrangement of the provisions of the
Constitution were not arbitrarily or whimsically done by the framers, but purposely made to
reflect their intention and manifest their vision of what the Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the allocation of the awesome
powers of government among the three great departments, the Legislative (Article VI), the
Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true
recognition of the principle of separation of powers that underlies the political structure, as
Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained
in his sponsorship speech:
We have in the political part of this Constitution opted for the separation of powers in
government because we believe that the only way to protect freedom and liberty is to separate
and divide the awesome powers of government. Hence, we return to the separation of powers
doctrine and the legislative, executive and judicial departments.66
As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists
the powers vested by the Constitution in the President. The presidential power of appointment is
dealt with in Sections 14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of
Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the
provisions specifically providing for the appointment of Supreme Court Justices. In particular,
Section 9 states that the appointment of Supreme Court Justices can only be made by the
President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the
Article mandates the President to fill the vacancy within 90 days from the occurrence of the
vacancy.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They could
not have ignored the meticulous ordering of the provisions. They would have easily and surely
written the prohibition made explicit in Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition against the
President or Acting President making appointments within two months before the next
presidential elections and up to the end of the President's or Acting President's term does not
refer to the Members of the Supreme Court.
Although Valenzuela67 came to hold that the prohibition covered even judicial appointments, it
cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the
Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior
Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional
Commission, about the prohibition not being intended to apply to the appointments to the
Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1),
Article VIII, viz:
V. Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution discloses that the original
proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted
to increase the number of Justices to fifteen. He also wished to ensure that that number would not
be reduced for any appreciable length of time (even only temporarily), and to this end proposed
that any vacancy "must be filled within two months from the date that the vacancy occurs." His
proposal to have a 15-member Court was not initially adopted. Persisting however in his desire
to make certain that the size of the Court would not be decreased for any substantial period as a
result of vacancies, Lerum proposed the insertion in the provision (anent the Court's
membership) of the same mandate that "IN CASE OF ANY VACANCY, THE SAME SHALL
BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He later agreed to
suggestions to make the period three, instead of two, months. As thus amended, the proposal was
approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member
Court. Thus it was that the section fixing the composition of the Supreme Court came to include
a command to fill up any vacancy therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that any "vacancy shall be filled
within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the
prohibition in Section 15, Article VII, which is couched in stronger negative language - that "a
President or Acting President shall not make appointments…"
The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a
Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph:
"WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of
nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to
provide a "uniform rule" for lower courts. According to him, the 90-day period should be
counted from submission of the list of nominees to the President in view of the possibility that
the President might reject the list submitted to him and the JBC thus need more time to submit a
new one.
On the other hand, Section 15, Article VII - which in effect deprives the President of his
appointing power "two months immediately before the next presidential elections up to the end
of his term" - was approved without discussion.68
However, the reference to the records of the Constitutional Commission did not advance or
support the result in Valenzuela. Far to the contrary, the records disclosed the express intent of
the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum,
"a command [to the President] to fill up any vacancy therein within 90 days from its occurrence,"
which even Valenzuela conceded.69 The exchanges during deliberations of the Constitutional
Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court
within the 90-day period was a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the
Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection reads: "Any vacancy shall be
filled within ninety days from the occurrence thereof."
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom
has the Court had a complete complement.70
Moreover, the usage in Section 4(1), Article VIII of the word shall - an imperative, operating to
impose a duty that may be enforced71 - should not be disregarded. Thereby, Sections 4(1)
imposes on the President the imperative duty to make an appointment of a Member of the
Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President
to do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in
the Supreme Court was undoubtedly a special provision to establish a definite mandate for the
President as the appointing power, and cannot be defeated by mere judicial interpretation in
Valenzuela to the effect that Section 15, Article VII prevailed because it was "couched in
stronger negative language." Such interpretation even turned out to be conjectural, in light of the
records of the Constitutional Commission's deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly warranted. According to an
authority on statutory construction:72
xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to
harmonize and reconcile every part so that each shall be effective. It is not easy to draft a statute,
or any other writing for that matter, which may not in some manner contain conflicting
provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter.
Undoubtedly, each provision was inserted for a definite reason. Often by considering the
enactment in its entirety, what appears to be on its face a conflict may be cleared up and the
provisions reconciled.
Consequently, that construction which will leave every word operative will be favored over one
which leaves some word or provision meaningless because of inconsistency. But a word should
not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature.
On the other hand, if full effect cannot be given to the words of a statute, they must be made
effective as far as possible. Nor should the provisions of a statute which are inconsistent be
harmonized at a sacrifice of the legislative intention. It may be that two provisions are
irreconcilable; if so, the one which expresses the intent of the law-makers should control. And
the arbitrary rule has been frequently announced that where there is an irreconcilable conflict
between the different provisions of a statute, the provision last in order of position will prevail,
since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved
criticism. It is seldom applied, and probably then only where an irreconcilable conflict exists
between different sections of the same act, and after all other means of ascertaining the meaning
of the legislature have been exhausted. Where the conflict is between two statutes, more may be
said in favor of the rule's application, largely because of the principle of implied repeal.
In this connection, PHILCONSA's urging of a revisit and a review of Valenzuela is timely and
appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission
to have Section 4 (1), Article VIII stand independently of any other provision, least of all one
found in Article VII. It further ignored that the two provisions had no irreconcilable conflict,
regardless of Section 15, Article VII being couched in the negative. As judges, we are not to
unduly interpret, and should not accept an interpretation that defeats the intent of the framers.73
Consequently, prohibiting the incumbent President from appointing a Chief Justice on the
premise that Section 15, Article VII extends to appointments in the Judiciary cannot be
sustained. A misinterpretation like Valenzuela should not be allowed to last after its false
premises have been exposed.74 It will not do to merely distinguish Valenzuela from these cases,
for the result to be reached herein is entirely incompatible with what Valenzuela decreed.
Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and
forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as part of
Article VII was to eliminate midnight appointments from being made by an outgoing Chief
Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo.75
In fact, in Valenzuela, the Court so observed, stating that:
xxx it appears that Section 15, Article VII is directed against two types of appointments: (1)
those made for buying votes and (2) those made for partisan considerations. The first refers to
those appointments made within the two months preceding a Presidential election and are similar
to those which are declared election offenses in the Omnibus Election Code, viz.:
xxx
The second type of appointments prohibited by Section 15, Article VII consists of the so-called
"midnight" appointments. In Aytona v. Castillo, it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in
his bid for reelection, became no more than a "caretaker" administrator whose duty was to
"prepare for the orderly transfer of authority to the incoming President." Said the Court:
"The filling up of vacancies in important positions, if few, and so spaced as to afford some
assurance of deliberate action and careful consideration of the need for the appointment and
appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments
in one night and the planned induction of almost all of them in a few hours before the
inauguration of the new President may, with some reason, be regarded by the latter as an abuse
of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all
vacant positions irrespective of fitness and other conditions, and thereby to deprive the new
administration of an opportunity to make the corresponding appointments."
As indicated, the Court recognized that there may well be appointments to important positions
which have to be made even after the proclamation of the new President. Such appointments, so
long as they are "few and so spaced as to afford some assurance of deliberate action and careful
consideration of the need for the appointment and the appointee's qualifications," can be made by
the outgoing President. Accordingly, several appointments made by President Garcia, which
were shown to have been well considered, were upheld.
Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be
deemed to contemplate not only "midnight" appointments - those made obviously for partisan
reasons as shown by their number and the time of their making - but also appointments presumed
made for the purpose of influencing the outcome of the Presidential election.
On the other hand, the exception in the same Section 15 of Article VII - allowing appointments
to be made during the period of the ban therein provided - is much narrower than that recognized
in Aytona. The exception allows only the making of temporary appointments to executive
positions when continued vacancies will prejudice public service or endanger public safety.
Obviously, the article greatly restricts the appointing power of the President during the period of
the ban.
Considering the respective reasons for the time frames for filling vacancies in the courts and the
restriction on the President's power of appointment, it is this Court's view that, as a general
proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of
vote-buying and similar evils outweighs the need for avoiding delays in filling up of court
vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban
which, incidentally and as earlier pointed out, comes to exist only once in every six years.
Moreover, those occurring in the lower courts can be filled temporarily by designation. But
prohibited appointments are long-lasting and permanent in their effects. They may, as earlier
pointed out, in fact influence the results of elections and, for that reason, their making is
considered an election offense.76
Given the background and rationale for the prohibition in Section 15, Article VII, we have no
doubt that the Constitutional Commission confined the prohibition to appointments made in the
Executive Department. The framers did not need to extend the prohibition to appointments in the
Judiciary, because their establishment of the JBC and their subjecting the nomination and
screening of candidates for judicial positions to the unhurried and deliberate prior process of the
JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight
appointments in the mold of Aytona were made in haste and with irregularities, or made by an
outgoing Chief Executive in the last days of his administration out of a desire to subvert the
policies of the incoming President or for partisanship,77 the appointments to the Judiciary made
after the establishment of the JBC would not be suffering from such defects because of the JBC's
prior processing of candidates. Indeed, it is axiomatic in statutory construction that the
ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or
meaning of the enactment, because the reason for the enactment must necessarily shed
considerable light on "the law of the statute," i.e., the intent; hence, the enactment should be
construed with reference to its intended scope and purpose, and the court should seek to carry out
this purpose rather than to defeat it.78
Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be
made for the purpose of buying votes in a coming presidential election, or of satisfying partisan
considerations. The experience from the time of the establishment of the JBC shows that even
candidates for judicial positions at any level backed by people influential with the President
could not always be assured of being recommended for the consideration of the President,
because they first had to undergo the vetting of the JBC and pass muster there. Indeed, the
creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the
intervention of the Commission on Appointments. This insulating process was absent from the
Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the
Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met
on March 9, 1998 to discuss the question raised by some sectors about the "constitutionality of
xxx appointments" to the Court of Appeals in light of the forthcoming presidential elections. He
assured that "on the basis of the (Constitutional) Commission's records, the election ban had no
application to appointments to the Court of Appeals."79 This confirmation was accepted by the
JBC, which then submitted to the President for consideration the nominations for the eight
vacancies in the Court of Appeals.80
The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation
of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the
intent of the framers rather than on the deliberations of the Constitutional Commission. Much of
the unfounded doubt about the President's power to appoint during the period of prohibition in
Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998,
had Valenzuela properly acknowledged and relied on the confirmation of a distinguished
member of the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16)
concern the appointing powers of the President.
Section 14 speaks of the power of the succeeding President to revoke appointments made by an
Acting President,81 and evidently refers only to appointments in the Executive Department. It has
no application to appointments in the Judiciary, because temporary or acting appointments can
only undermine the independence of the Judiciary due to their being revocable at will.82 The
letter and spirit of the Constitution safeguard that independence. Also, there is no law in the
books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory
retirement or resignation, judges of the first and second level courts and the Justices of the third
level courts may only be removed for cause, but the Members of the Supreme Court may be
removed only by impeachment.
Section 16 covers only the presidential appointments that require confirmation by the
Commission on Appointments. Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on Appointments after the requirement was
removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored
requirement did not include appointments to the Judiciary.83
Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the
power of the President to appoint. The fact that Section 14 and Section 16 refer only to
appointments within the Executive Department renders conclusive that Section 15 also applies
only to the Executive Department. This conclusion is consistent with the rule that every part of
the statute must be interpreted with reference to the context, i.e. that every part must be
considered together with the other parts, and kept subservient to the general intent of the whole
enactment.84 It is absurd to assume that the framers deliberately situated Section 15 between
Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential
appointments. If that was their intention in respect of appointments to the Judiciary, the framers,
if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII,
most likely within Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the
Judiciary further undermines the intent of the Constitution of ensuring the independence of the
Judicial Department from the Executive and Legislative Departments. Such a holding will tie the
Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the
Presidency in a presidential election. Consequently, the wisdom of having the new President,
instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and
cannot ensure judicial independence, because the appointee can also become beholden to the
appointing authority. In contrast, the appointment by the incumbent President does not run the
same risk of compromising judicial independence, precisely because her term will end by June
30, 2010.
Sixth. The argument has been raised to the effect that there will be no need for the incumbent
President to appoint during the prohibition period the successor of Chief Justice Puno within the
context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90
days mandated in Section 4(1), Article VIII remaining.
The argument is flawed, because it is focused only on the coming vacancy occurring from Chief
Justice Puno's retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every
situation of a vacancy in the Supreme Court.
The argument also rests on the fallacious assumption that there will still be time remaining in the
90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG
has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May,
letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular
presidential elections are held on May 8, the period of the prohibition is 115 days. If such
elections are held on May 14, the period of the prohibition is 109 days. Either period of the
prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme
Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest
possible period of the ban of 109 days and the 90-day mandatory period for appointments) in
which the outgoing President would be in no position to comply with the constitutional duty to
fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution
could not have intended such an absurdity. In fact, in their deliberations on the mandatory period
for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers
neither discussed, nor mentioned, nor referred to the ban against midnight appointments under
Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to,
because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court,
or in any of the lower courts.
Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list
is necessary at all for the President - any President - to appoint a Chief Justice if the appointee is
to come from the ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at
least three nominees prepared by the Judicial and Bar Council for any vacancy. Such
appointments need no confirmation.
xxx
The provision clearly refers to an appointee coming into the Supreme Court from the outside,
that is, a non-member of the Court aspiring to become one. It speaks of candidates for the
Supreme Court, not of those who are already members or sitting justices of the Court, all of
whom have previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?
The question is not squarely before us at the moment, but it should lend itself to a deeper
analysis if and when circumstances permit. It should be a good issue for the proposed
Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile's
statement that the President can appoint the Chief Justice from among the sitting justices of the
Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint the successor of
Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of
having the next President appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
Section 12. Vacancy in Office of Chief Justice. - In case of a vacancy in the office of Chief
Justice of the Supreme Court or of his inability to perform the duties and powers of his office,
they shall devolve upon the Associate Justice who is first in precedence, until such disability is
removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to
every Associate Justice who succeeds to the office of Chief Justice.
The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief
Justice, or in the event that the Chief Justice is unable to perform his duties and powers. In either
of such circumstances, the duties and powers of the office of the Chief Justice shall devolve upon
the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the
disability is removed.
Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court
has hereby resolved the question of consequence, we do not find it amiss to confront the matter
now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a
Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list of
at least three nominees prepared by the JBC for every vacancy, which appointments require no
confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she
is appointed by the President as Chief Justice, and the appointment is never in an acting capacity.
The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting
Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply
written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948
in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the
plain intent of the Constitution.
For sure, the framers intended the position of Chief Justice to be permanent, not one to be
occupied in an acting or temporary capacity. In relation to the scheme of things under the present
Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in which
the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable to
perform the duties and powers of the office. It ought to be remembered, however, that it was
enacted because the Chief Justice appointed under the 1935 Constitution was subject to the
confirmation of the Commission on Appointments, and the confirmation process might take
longer than expected.
The appointment of the next Chief Justice by the incumbent President is preferable to having the
Associate Justice who is first in precedence take over. Under the Constitution, the heads of the
Legislative and Executive Departments are popularly elected, and whoever are elected and
proclaimed at once become the leaders of their respective Departments. However, the lack of any
appointed occupant of the office of Chief Justice harms the independence of the Judiciary,
because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions
absolutely significant to the life of the nation. With the entire Supreme Court being the
Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no
obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the
incumbent President to make within the 90-day period from May 17, 2010, there is no
justification to insist that the successor of Chief Justice Puno be appointed by the next President.
Historically, under the present Constitution, there has been no wide gap between the retirement
and the resignation of an incumbent Chief Justice, on one hand, and the appointment to and
assumption of office of his successor, on the other hand. As summarized in the comment of the
OSG, the chronology of succession is as follows:
1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro
Yap was appointed on the same day;
2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was
appointed on the same day;
3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres
Narvasa was appointed the following day, December 8, 1991;
4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario
Davide, Jr. was sworn into office the following early morning of November 30, 1998;
5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio
Panganiban was appointed the next day, December 20, 2005; and
6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S.
Puno took his oath as Chief Justice at midnight of December 6, 2006.85
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act that the law specifically enjoins as a duty resulting from an
office, trust, or station.86 It is proper when the act against which it is directed is one addressed to
the discretion of the tribunal or officer. Mandamus is not available to direct the exercise of a
judgment or discretion in a particular way.87
For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear
legal right to the act demanded; (b) it must be the duty of the defendant to perform the act,
because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty
enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no
appeal or any other plain, speedy and adequate remedy in the ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three
nominees to the President for every vacancy in the Judiciary:
Section 8. xxx
(5) The Council shall have the principal function of recommending appointees to the
Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by
the President from a list of at least three nominees prepared by the Judicial and Bar Council
for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from the
submission of the list.
However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in
the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from
the submission of the list, in the case of the lower courts. The 90-day period is directed at the
President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill
the vacancy in the Supreme Court before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the President the list of
nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one
of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion
to submit the list to the President after the vacancy occurs, because that shortens the 90-day
period allowed by the Constitution for the President to make the appointment. For the JBC to do
so will be unconscionable on its part, considering that it will thereby effectively and illegally
deprive the President of the ample time granted under the Constitution to reflect on the
qualifications of the nominees named in the list of the JBC before making the appointment.
The duty of the JBC to submit a list of nominees before the start of the President's mandatory 90-
day period to appoint is ministerial, but its selection of the candidates whose names will be in the
list to be submitted to the President lies within the discretion of the JBC. The object of the
petitions for mandamus herein should only refer to the duty to submit to the President the list of
nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of
duty, there must be an unjustified delay in performing that duty.88 For mandamus to lie against
the JBC, therefore, there should be an unexplained delay on its part in recommending nominees
to the Judiciary, that is, in submitting the list to the President.
The distinction between a ministerial act and a discretionary one has been delineated in the
following manner:
The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state of facts,
in a prescribed manner, in obedience to the mandate of a legal authority, without regard to
or the exercise of his own judgment upon the propriety or impropriety of the act done. If
the law imposes a duty upon a public officer and gives him the right to decide how or when
the duty shall be performed, such duty is discretionary and not ministerial. The duty is
ministerial only when the discharge of the same requires neither the exercise of official
discretion or judgment.89
Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a
writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear
that the JBC still has until May 17, 2010, at the latest, within which to submit the list of
nominees to the President to fill the vacancy created by the compulsory retirement of Chief
Justice Puno.
IV
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can
appoint the Chief Justice. Hence, Soriano's petition for prohibition in G.R. No. 191032, which
proposes to prevent the JBC from intervening in the process of nominating the successor of
Chief Justice Puno, lacks merit.
On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit.
The challenge mounted against the composition of the JBC based on the allegedly
unconstitutional allocation of a vote each to the ex officio members from the Senate and the
House of Representatives, thereby prejudicing the chances of some candidates for nomination by
raising the minimum number of votes required in accordance with the rules of the JBC, is not
based on the petitioners' actual interest, because they have not alleged in their petition that they
were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack
locus standi on that issue.
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No.
191149, and the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for
lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and
Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy
to be created by the compulsory retirement of Chief Justice Reynato S. Puno by
May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the
position of Chief Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill other
vacancies in the Judiciary and submit to the President the short list of nominees
corresponding thereto in accordance with this decision.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

ANTONIO EDUARDO B. TERESITA J. LEONARDO-DE

NACHURA CASTRO
ARTURO D. BRION DIOSDADO M. PERALTA

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
JOSE CATRAL MENDOZA

Associate Justice
CERTIFICATION
in the above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Footnotes
1
Filed on February 9, 2010.
2
Begun on February 23, 2010.
3
Initiated on February 10, 2010.
4
Commenced on February 11, 2010.
5
Dated February 15, 2010.
6
Filed on March 8, 2010.
7
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
8
Petition in G.R. No. 191002, pp. 3-4.
9
Id., p. 5.
10
11
12
Id., p. 11.
13
Petition in G.R. No. 191149.
14
Petition in G.R. No. 191342.
15
http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf
16
http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan22%20%2710.pdf
17
Comment of the JBC, p. 3.
18
Id.
19
Id., pp. 4-5.
20
Id., p. 5.
21
Id.
22
Id., p. 6.
23
Petition in A.M. No. 10-2-5-SC, pp. 5-6.
24
25
Id., p. 7; bold emphasis is in the original text.
26
Comment of the OSG, pp. 13-14.
27
Id., p. 14.
28
Id., p. 15.
29
Id., pp. 20-24.
30
Id., pp. 25-27.
31
Id., pp. 29-30.
32
Id.
33
Id., pp. 32-33.
34
Id., pp. 34-35.
35
Id.
36
Id., pp. 35-36. The OSG posits:
National interest compels the President to make such appointment for it is
particularly during this crucial period when national leaders are seeking fresh
mandates from the people that the Supreme Court, more than at any other time,
represents stability. Hence, a full court is ideal to ensure not only due deliberation
on and careful consideration of issues but also expeditious disposition of cases.
Indeed, such function becomes especially significant in view of the fact that this is
the first time that the whole country will experience automated elections.
37
Id., pp. 36-37. The OSG stresses:
The possible fallouts or serious aftermath of allowing a vacuum in the position of

the Chief Justice may be greater and riskier than the consequences or
repercussions of inaction. Needless to state, the appointment of the Chief Justice
of this Honorable Court (sic) is the most important appointment vested by the
1987 Constitution to (sic) the President.
38
Id., p. 37.
39
Id., p. 38.
40
Filed by Atty. Pitero M. Reig.
41
Black's Law Dictionary, 941 (6th Ed. 1991).
42
G.R. No. 155001, May 5, 2003, 402 SCRA 612.
43
Citing Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540,
562-563, citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 633 (1962).
44
Citing Kilosbayan, Inc. v. Morato, supra; Bayan v. Zamora, G.R. No. 138570, October
10, 2000; 342 SCRA 449, 478.
45
65 Phil. 56.
46
G.R. No. 117, November 7, 1945 (Unreported).
47
G.R. No. 2947, January 11, 1959 (Unreported).
48
77 Phil. 1012 (1947).
49
110 Phil. 331 (1960).
50
84 Phil. 368 (1949)
51
E.g., Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA
152 (in which the Court ruled that the enforcement of the constitutional right to
information and the equitable diffusion of natural resources are matters of transcendental
importance which clothe the petitioner with locus standi); Bagong Alyansang Makabayan
v. Zamora, G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342
SCRA 449 (in which the Court held that "given the transcendental importance of the
issues involved, the Court may relax the standing requirements and allow the suit to
prosper despite the lack of direct injury to the parties seeking judicial review" of the
Visiting Forces Agreement); Lim v. Executive Secretary, G.R. No. 151445, April 11,
2002, 380 SCRA 739 (in which the Court, albeit conceding that the petitioners might not
file suit in their capacity as taxpayers without a showing that Balikatan 02-01 involved
the exercise of Congress' taxing or spending powers, reiterated Bagong Alyansang
Makabayan v. Zamora, declaring that cases of transcendental importance must be settled
promptly and definitely and the standing requirements may be relaxed); and Osmeña v.
Commission on Elections, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199
SCRA 750 (in which the Court held that where serious constitutional questions were
involved, the transcendental importance to the public of the cases demanded that they be
settled promptly and definitely, brushing aside technicalities of procedure).
52
L-No. 40004, January 31, 1975, 62 SCRA 275.
53
E.g., Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 (in which the
Court held that it is sufficient that the petitioner is a citizen interested in the execution of
the law, because the question is one of public duty and the enforcement of a public right,
and the people are the real party-in-interest); Legaspi v. Civil Service Commission, G.R.
No. 72119, May 29, 1987, 150 SCRA 530 (in which the Court declared that where an
assertion of a public right is involved, the requirement of personal interest is satisfied by
the mere fact that the petitioner is a citizen and is part of the general public which
possesses the right); Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan, L. No. 81311, June 30, 1988, 163 SCRA 371 (in which the Court disregarded
objections to taxpayers' lack of personality to sue in determining the validity of the VAT
Law); Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264 (in which the
Court pronounced that although no expenditure of public funds was involved in the
questioned contract, the petitioner was nonetheless clothed with the legal personality
under the disclosure provision of the Constitution to question it, considering its important
role in the economic development of the country and the magnitude of the financial
consideration involved, indicating that public interest was definitely involved); and
Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform,
G.R. No. 78742, July 14, 1989, 175 SCRA 343 (in which the Court ruled that it had the
discretion to waive the requirement of locus standi in determining the validity of the
implementation of the Comprehensive Agrarian Reform Program, although the
petitioners were not, strictly speaking, covered by the definition of proper party).
54
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
55
275 Ky 91, 120 SW2d 765 (1938).
56
19 Wend. 56 (1837).
57
232 NC 48, 59 SE2d 359 (1950).
58
Bold emphasis is in the original text.
59
Petition in G.R. No. 191032, p. 2.
60
Petition in G.R. No. 191057, pp. 3-4; citing the cases of PHILCONSA v. Gimenez, 15
SCRA 479; PHILCONSA v. Mathay, 18 SCRA 300; PHILCONSA v. Enriquez, 235
SCRA 506; and Lambino v. COMELEC, 505 SCRA 160.
61
62
See, for instance, Integrated Bar of the Philippines v. Zamora, G.R. No. 141284,
August 15, 2000, 338 SCRA 81 (where the petitioner questioned the validity of the
deployment and utilization of the Marines to assist the PNP in law enforcement, asserting
that IBP was the official organization of Filipino lawyers tasked with the bounden duty to
uphold the rule of law and the Constitution, but the Court held that the IBP had not
shown that it was so tasked: "In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Moreover, because peace and order are
under constant threat and lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal controversy raised in the
petition almost certainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now, rather than
later", and went on to resolve the issues because the petitioner advanced constitutional
issues that deserved the attention of the Court in view of their seriousness, novelty, and
weight as precedents).
63
Supra, note 42, p. 645.
64
Id.
65
See Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail Reoganization Act
Cases, 419 U.S. 102, 138-148 (1974).
66
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 912,
October 12, 1998.
67
Supra, note 6, p. 426-427, stating:
Considering the respective reasons for the time frames for filling vacancies in the
courts and the restriction on the President's power of appointment, it is this
Court's view that, as a general proposition, in case of conflict, the former should
yield to the latter. Surely, the prevention of vote-buying and similar evils
outweighs the need for avoiding delays in filling up of court vacancies or the
disposition of some cases. Temporary vacancies can abide the period of the ban
which, incidentally and as earlier pointed out, comes to exist only once in every
six years. Moreover, those occurring in the lower courts can be filled temporarily
by designation. But prohibited appointments are long-lasting and permanent in
their effects. They may, as earlier pointed out, in fact influence the results of
elections and, for that reason, their making is considered an election offense.
To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of
Article VIII should prevail over Section 15 of Article VII, because they may be
considered later expressions of the people when they adopted the Constitution, it
suffices to point out that the Constitution must be construed in its entirety as one,
single, instrument.
To be sure, instances may be conceived of the imperative need for an

appointment, during the period of the ban, not only in the executive but also in the
Supreme Court. This may be the case should the membership of the court be so
reduced that it will have no quorum or should the voting on a particularly
important question requiring expeditious resolution be evenly divided. Such a
case, however, is covered by neither Section 15 of Article VII nor Section 4 (1)
and 9 of Article VIII.
68
Id., pp. 422-423.
69
Id., p. 423.
70
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., pp.
632-633.
71
Dizon v. Encarnacion, G.R. No. L-18615, December 24, 1963, 9 SCRA 714.
72
Crawford, Earl. T., The Construction of Statutes, Thomas Law Book Company, St.
Louis, Missouri, 262-264 (1940).
73
Garcia v. Social Security Commission Legal and Collection, G.R. No. 170735,
December 17, 2007, 540 SCRA 456, 472; citing Escosura v. San Miguel Brewery, Inc., 4
SCRA 285, (1962).
74
According to Arizona v. Rumsey, 467 U. S. 203, 212 (1984): "Although adherence to
precedent is not rigidly required in constitutional cases, any departure from the doctrine
of stare decisis demands special justification." The special justification for the reversal of
Valenzuela lies in its intrinsic unsoundness.
75
No. L-19313, January 19, 1962, 4 SCRA 1.
76
Supra, note 6, pp. 424-426; bold underscoring supplied for emphasis.
77
Aytona v. Castillo, supra, note 74, pp. 8-10 (N.B. - In the time material to Aytona,
there were judges of the Court of First Instance who were appointed to districts that had
no vacancies, because the incumbents had not qualified for other districts to which they
had been supposedly transferred or promoted; at any rate, the appointments still required
confirmation by the Commission on Appointments).
78
Crawford, op. cit., supra, note 72, pp. 248-249.
79
80
Id.
81
Section 14. Appointments extended by an Acting President shall remain effective,
unless revoked by the elected President within ninety days from his assumption or
reassumption of office.
82
Cruz, I., Philippine Political Law, 253 (2002); also Rilloraza v. Vargas, 80 Phil. 297
(1948).
83
Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 908,
which indicates that in his sponsorship speech delivered on October 12, 1986 on the floor
of the Constitutional Commission, Commissioner Teofisto Guingona explained that
"[a]ppointments to the judiciary shall not be subject to confirmation by the Commission
on Appointments."
84
Rodriguez, Statutory Construction, 171 (1999).
85
Comment of the OSG, p. 37.
86
Section 3, Rule 65, 1997 Rules of Civil Procedure.
87
JG Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, November 20, 2000,
345 SCRA 143.
88
Nery v. Gamolo, A.M. No. P-01-1508, February 7, 2003, 397 SCRA 110, citing Musni
v. Morales, 315 SCRA 85, 86 (1999).
89
Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006, 490 SCRA 273.
. No. 146933, June 8, 2006, 490 SCRA 273.

CONCURRING OPINION
ABAD, J.:
Chief Justice Reynato S. Puno will retire on May 17, 2010. Article VIII, Section 91 of the 1987
Constitution requires the President to choose his successor from at least three nominees of the
Judicial and Bar Council (JBC). On January 18, 2010 the JBC passed a unanimous resolution2 to
start the process of filling up the anticipated vacancy. Indeed, it invited applications and
nominations for the position through newspapers, later announced the names of candidates to it,
and finally received endorsements in favor of and oppositions against such candidates.
Ordinarily, the JBC would already be holding public interviews of candidates to the office to be
followed by a deliberation and the eventual submission of a shortlist of nominees to the
President. The Constitution provides that any vacancy in the Supreme Court "shall be filled
within ninety days" from its occurrence.3 Since the position of Chief Justice will be vacant on
May 17, 2010 when Chief Justice Puno shall have retired, the President has to fill up the vacancy
during the period May 17 to August 15, 2010.
But by some unforeseen happenstance, that vacancy (May 18) will occur during the period of the
midnight appointments ban (March 10 to June 30), a ban intended to prevent an outgoing
president from buying votes using such appointments or robbing the incoming president of the
opportunity to fill up important positions with people he will be working with. Article VII,
Section 15, of the Constitution prohibits the outgoing President from making appointments "two
months immediately before the next presidential elections and up to the end of his term," except
temporary appointments in the interest of public service or public safety.4 The midnight
appointments ban this year is in force from March 10 (two months before the elections) to June
30 (the end of the incumbent President’s term), a period of 112 days.
Issues to be addressed
Quite ably, the majority opinion already addressed the several issues raised by the petitions and
the oppositions to them. I join that opinion and would add a few thoughts on what I believe to be
the key issues in this case, namely:
1. Whether or not the case presents an actual controversy that is ripe for this Court’s
adjudication; and
2. Whether or not the Constitutional ban on midnight appointments applies to the

judiciary.
Discussion
One. Invoking the fundamental rule that judicial power is the duty of the courts of justice to
settle "actual controversies involving rights which are legally demandable and enforceable," the
National Union of People’s Lawyers (NUPL) claims that no actual controversy exists in this case
as to warrant judicial determination of the issue of whether or not the Constitutional ban on
midnight appointment applies to the judiciary since the JBC has not as yet prepared a final list of
its nominees to current vacancies in the courts. BAYAN, COURAGE, KADAMAY, LFS,
NUSTP, CEGP, SCMP, and BAYAN claim that what the petitioners seek is a mere advisory
opinion from the Court, something that it has no power to give.
The Constitution provides that judicial power is the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable.5 The court will not
act on an action for damages for a slap on the plaintiff’s face if the defendant is still to deliver
that slap. The law must have established a right which has in fact been violated.
Here, the Constitution imposes on the JBC the duty to recommend to the President those whom
he can appoint to the judiciary when a vacancy occurs.6 In the case of a vacancy in the Supreme
Court, it is implicit that the JBC must submit a list of at least three nominees to the President on
time to enable him to fulfill his duty to fill up the vacancy within 90 days after it occurs.7 Those
who have an interest in the fulfillment of this duty has the right to insist that it be done.
But the JBC appears reluctant or unwilling to perform its above duty in the case of the
forthcoming May 17, 2010 vacancy in the office of the Chief Justice. It expressed a desire to
determine, initially, from views submitted to it by others and, later, from what the Court might
provide it by way of guidance, whether it can submit its list of nominees to the incumbent
President during the ban on midnight appointments that sets in on March 10. Indeed, the JBC
said in its resolution of January 18, 2010 that, while it would start the selection process, it was
yet to determine when and to whom to submit its shortlist of nominees. It saw an apparent
conflict between the provisions of Section 4(1) of Article VIII (the ban on midnight
appointments) and Section 15 of Article VII (the need to fill up the vacancy within 90 days of its
occurrence) of the 1987 Constitution.
Eventually, after taking some steps in the selection process, the JBC held the process in
abeyance, unable to decide as yet when and to whom it will submit its list of nominees for the
position that Chief Justice Puno will vacate on May 17, 2010. Under the circumstances, the
controversy is already ripe for adjudication for, assuming that the ban on midnight appointment
does not apply to the judiciary as the petitioners would have it, then the JBC’s suspension of its
selection process would constitute a violation of its duty under the Constitution to carry on with
such process until it is able to submit the desired list to the incumbent President. If my
subdivision neighbor begins constructing a shed in his yard and tells me that he has ordered 20
pigs to raise there, I will not wait till the pigs arrive and defecate before I bring an action to abate
a nuisance.
As mandated by the Constitution, the incumbent President should be able to fill up the vacancy
within 90 days of its occurrence. This presupposes that the incumbent President should have the
list on or before May 17, the day the vacancy occurs, so she can comply with her duty under the
Constitution to make the appointment within the 90-day period provided by it. Of course, the
circumstances is such that the period for appointing the Chief Justice’s replacement will span the
tenure of the incumbent President (for 44 days) and her successor (for 46 days), but it is the
incumbent’s call whether to exercise the power or pass it on.
Again, assuming as correct petitioners’ view that the ban on midnight appointments does not
apply to the judiciary, the JBC’s suspension of its selection process places it in default, given its
above duty in regard to the submission of its list of nominees to the President within a time
constraint. Under the same assumption, moreover, the petitioner citizens and members of the bar
would have a demandable right or interest in having the JBC proceed with its selection process
and submit its list of nominees in time for the incumbent President or her successor to fill up the
vacancy within the period required by the Constitution.
Alternatively, assuming that an actual controversy has not yet developed as to warrant action on
the petitions filed in this case, the Court has the authority, as an incident of its power of
supervision over the JBC,8 to see to it that the JBC faithfully executes its duties as the
Constitution requires of it.
In its Resolution of January 18, 2010, the JBC confesses uncertainty regarding when and to
whom to submit its list of nominees for the May 17, 2010 vacancy in the office of Chief Justice
in view of the apparently conflicting provisions of the Constitution. Further, in its comment in
this case, the JBC declared that it "will be guided by [the Court’s] decision in these consolidated
Petitions and Administrative Matter." Consequently, as an incident of its Constitutional duty to
supervise the JBC, the Court can, to insure JBC’s faithful compliance with the Constitution,
resolve the issue of whether or not the ban on midnight appointments applies to the judiciary.
Two. Citing "In Re: Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch
24, Cabanatuan City,"9 the oppositors claim that the ban on midnight appointments applies to the
judiciary. After examining the reasons for the two apparently conflicting provisions, the Court
said that the need to fill up vacancies in the judiciary within the period the Constitution provides
must yield to the ban on Presidential midnight appointments. The Court explained this ruling:
Considering the respective reasons for the time frames for filling vacancies in the courts and the
restriction on the President’s power of appointment, it is this Court’s view that, as a general
proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of
vote-buying and similar evils outweighs the need for avoiding delays in filling up of court
vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban
which, incidentally and as earlier pointed out, comes to exist only once in every six years.
Moreover, those occurring in the lower courts can be filled temporarily by designation. But
prohibited appointments are long-lasting and permanent in their effects. They may, as earlier
pointed out, in fact influence the results of elections and, for that reason, their making is
considered an election offense.10
But the above assumes that the outgoing incumbent President can make appointments in the
judiciary during the period of the ban "to buy votes" and commit "similar evils" like denying the
incoming President the opportunity to consider other appointees in the light of his new policies, a
point former President Diosdado Macapagal made in Aytona v. Castillo.11
The fact, however, is that while the President can freely choose to appoint any person who meets
the basic qualifications for a position in the Executive Department, he does not have such
freedom of choice when it comes to appointments in the judiciary. In the latter case, the
Constitution provides in Section 9 of Article VIII that the President can choose his appointee
only from a JBC short list of its nominees.
Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar Council for
every vacancy. x x x
This restriction on the President’s appointing power is not a small matter.
First. The JBC from whose list of nominees the President will make his appointment is
under the supervision of the Supreme Court itself. Indeed, it is headed by the Chief
Justice as its presiding officer. The JBC is not a subordinate agency of the Executive
Department; the President has neither control nor supervision over it.
Second. The JBC makes its own vetting rules and procedures. The Constitution of course
provides for the qualifications of members of the judiciary12 but this has not prevented
the JBC from establishing grounds for disqualifying candidates, such as the pendency of
administrative or criminal cases against them.
Third. The JBC announces any vacancy in the judiciary in newspapers of large
circulations. Secret recruitment and trading for votes in the coming elections is out.
Fourth. Anyone who has the basic qualifications can apply for a vacancy or be nominated
to it. Thus, the opportunity to be recommended by the JBC for appointment is open or
otherwise unrestricted. Political connection is not a consideration that the JBC entertains
in short listing its nominees.
Fifth. The JBC invites the public to comment on or submit opposition to the nomination
of candidates to a vacancy. And it holds public hearings in which each candidate is
queried about his qualifications, affiliations, and other personal circumstances.
Sixth. The names in the list submitted by the JBC to the President are not negotiable. On
July 24, 2009 the Executive Secretary returned to JBC its list of six nominees for two
vacancies in the Court, requesting additional names that the incumbent President can
choose from. Obviously, the President was unhappy with the names on the list. But the
JBC declined the request, the pertinent portion of which reads:
We wish to inform you that the six (6) nominees of the JBC were chosen after a long and
thorough selection process. Among others, their public and private track record, experience and
possession of the required qualities of competence, integrity, probity and independence were
carefully studies and considered by the JBC. They are all highly qualified for the two (2)
vacancies in the Supreme Court and indeed, your letter of July 26, 2009 does not assail and
hence, concedes the qualification of the six (6) nominees.
With due respect, the JBC cannot acquiesce to your request to expand the short list of nominees
submitted to your office. The decision whether to include three or more than three name in the
short list of the nominees exclusively belongs to the JBC. It is one of the important innovations
in the 1987 Constitution designed to depoliticize appointments in the Judiciary and promote its
independence. This discretion given to the JBC is the lynchpin of its autonomy and it cannot be
compromised in the tiniest degree without impairing the delicate check and balance in the
appointment of members of the Judiciary installed in our Constitution. The JBC, voting
unanimously, cannot therefore accede to your request in light of the imperatives of the
Constitution.1avvphi1
Thus, the incumbent President was forced to choose from the few names on the list that she had.
In reality, a President’s choice of Chief Justice is in fact first a choice of the JBC before it is that
of the President. Easily there should at least be 20,000 lawyers who are 40 years of age and have
15 years of law practice of some kind who could qualify for Chief Justice. Yet, the President can
choose only from a list of three, four, or five lawyers that the JBC draws up for him.
Consequently, the idea that the outgoing incumbent President can take advantage of her
appointment of a Chief Justice to buy votes in the coming elections is utterly ridiculous. She has
no control over the JBC’s actions.
Further, the idea that the incoming President should have the opportunity to choose a Chief
Justice who will support his policies does not also make sense. The Supreme Court that the Chief
Justice heads is not a support agency under the President. One of the functions of the Supreme
Court is to provide a Constitutional check on abuses of the Executive Department.
The proposition that a Chief Justice will always be beholden to the President who appoints him is
a myth. Former President Estrada appointed Chief Justice Hilario G. Davide, Jr. who presided
over his impeachment and administered the oath to the incumbent President at the heels of
EDSA II while President Estrada still sat in Malacañang. Chief Justices Artemio V. Panganiban
and Reynato S. Puno voted against positions taken by the administration of the incumbent
President who appointed them both to their position. These Chief Justices like those before them
were first choices of the JBC before they were those of the Presidents concerned.
I thus reiterate my concurrence with the main decision.
ROBERTO A. ABAD
Associate Justice
Footnotes
1
Article VIII, Sec. 9. The members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from
the submission of the list.
2
http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf.
3
Article VIII, Section 4(1). The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or, in its discretion, in divisions of three,
five, or seven Members. Any vacancy shall be filled within ninety days from the
occurrence thereof.
4
Article VII, Sec. 15. Two months immediately before the next presidential elections and
up to the end of his term, a President or Acting President shall not make appointments,
except temporary appointments to executive positions when continued vacancies therein
will prejudice public service or endanger public safety.
5
Article VIII, Section 1, 1987 Constitution of the Philippines.
6
Id., Section 5.
7
Id., Section 9 in relation to Section 4(1).
8
Id., Section 8(1).
9
358 Phil. 896 (1998).
10
Id. at 915-916.
11
4 SCRA 1, 8 (1962).
12
Section 7(1) and (3), Article VIII, 1987 Constitution of the Philippines.
DISSENTING OPINION
CARPIO MORALES, J.:
"Although the Chief Justice is primus inter pares, he cannot legally decide a case on his own
because of the Court’s nature as a collegial body. Neither can the Chief Justice, by himself,
overturn the decision of the Court, whether of a division or the en banc."
— Associate Justice Renato C. Corona in
Complaint of Mr. Aurelio Indencia Arrienda
against Justice Puno, 499 Phil. 1, 14 (2005)
Primus Inter pares. First among equals. The Latin maxim indicates that a person is the most
senior of a group of people sharing the same rank or office. The phrase has been used to describe
the status, condition or role of the prime minister in most parliamentary nations, the high-ranking
prelate in several religious orders, and the chief justice in many supreme courts around the
world.1
The inclination to focus on the inter pares without due emphasis on the primus/prima2 has
spawned contemporary discourse that revives the original tug-of-war between domination and
parity, which impasse the conceived maxim precisely intended to resolve.
In the present case, several arguments attempt to depict a mirage of doomsday scenarios arising
from the impending vacancy of the primus in the Court as a springboard for their plea to avert a
supposed undermining of the independence of the judiciary. In reality, the essential question
boils down to the limitation on the appointing power of the President.
The ponencia of Justice Bersamin holds that the incumbent President can appoint the next Chief
Justice upon the retirement of Chief Justice Reynato S. Puno on May 17, 2010 since the
prohibition during election period3 does not extend to appointments in the judiciary, thereby
reversing In re appointments of Hon. Valenzuela & Hon. Vallarta.4
The ponencia additionally holds that the Judicial and Bar Council (JBC) has until May 17, 2010,
at the latest, within which to submit to the President the list of nominees for the position of Chief
Justice.
I DISSENT.
Constitutional draftsmanship style is the weakest aid in arriving at a constitutional construction
The first ratiocination adverts to the "organization and arrangement of the provisions of the
Constitution" that was, as the ponencia declares, purposely made by the framers of the
Constitution to "reflect their intention and manifest their vision" of the charter’s contents.
It is unfortunate that the ponencia chiefly relies on the trivialities of draftsmanship style in
arriving at a constitutional construction. The petitioner in Anak Mindanao Party-List Group v.
The Executive Secretary5 raised a similar argument, but the Court held:
AMIN goes on to proffer the concept of "ordering the law" which, so it alleges, can be said of the
Constitution’s distinct treatment of these three areas, as reflected in separate provisions in
different parts of the Constitution. It argues that the Constitution did not intend an over-arching
concept of agrarian reform to encompass the two other areas, and that how the law is ordered in a
certain way should not be undermined by mere executive orders in the guise of administrative
efficiency.
The Court is not persuaded.
The interplay of various areas of reform in the promotion of social justice is not something
implausible or unlikely. Their interlocking nature cuts across labels and works against a rigid
pigeonholing of executive tasks among the members of the President’s official family. Notably,
the Constitution inhibited from identifying and compartmentalizing the composition of the
Cabinet. In vesting executive power in one person rather than in a plural executive, the evident
intention was to invest the power holder with energy.
AMIN takes premium on the severed treatment of these reform areas in marked provisions of the
Constitution. It is a precept, however, that inferences drawn from title, chapter or section
headings are entitled to very little weight. And so must reliance on sub-headings, or the
lack thereof, to support a strained deduction be given the weight of helium.
Secondary aids may be consulted to remove, not to create doubt. AMIN’s thesis unsettles, more
than settles the order of things in construing the Constitution. Its interpretation fails to clearly
establish that the so-called "ordering" or arrangement of provisions in the Constitution
was consciously adopted to imply a signification in terms of government hierarchy from
where a constitutional mandate can per se be derived or asserted. It fails to demonstrate
that the "ordering" or layout was not simply a matter of style in constitutional drafting but
one of intention in government structuring. With its inherent ambiguity, the proposed
interpretation cannot be made a basis for declaring a law or governmental act unconstitutional.6
(emphasis and underscoring supplied)
Concededly, the allocation of three Articles in the Constitution devoted to the respective
dynamics of the three Departments was deliberately adopted by the framers to allocate the vast
powers of government among the three Departments in recognition of the principle of separation
of powers.
The equation, however, does not end there. Such kind of formulation detaches itself from the
concomitant system of checks and balances. Section sequencing alone of Sections 14, 15 and 16
of Article VII, as explained in the fourth ratiocination, does not suffice to signify functional
structuring.
That the power of judicial appointment was lodged in the President is a recognized measure of
limitation on the power of the judiciary, which measure, however, is counterbalanced by the
election ban due to the need to insulate the judiciary from the political climate of presidential
elections. To abandon this interplay of checks and balances on the mere inference that the
establishment of the JBC could de-politicize the process of judicial appointments lacks
constitutional mooring.
The establishment of the JBC is not sufficient to curtail the evils of midnight appointments in the
judiciary
The constitutional prohibition in Section 15 found its roots in the case of Aytona v. Castillo,7
where among the "midnight" or "last minute" appointments voided to abort the abuse of
presidential prerogatives or partisan efforts to fill vacant positions were one in the Supreme
Court and two in the Court of Appeals.
Heeding Aytona’s admonition, the Constitutional Commission (ConCom) saw it fit to provide
for a comprehensive ban on midnight appointments, finding that the establishment of the JBC is
not enough to safeguard or insulate judicial appointments from politicization. The ConCom
deliberations reveal:
MR. GUINGONA: Madam President.
THE PRESIDENT: Commissioner Guingona is recognized.
MR. GUINGONA: Would the distinguished proponent accept an amendment to his

amendment to limit this prohibition to members of collegiate courts? The judges of the
lower courts perhaps would not have the same category or the same standing as the others
mentioned here.
MR. DAVIDE: Pursuant to the post amendment, we already included here government-
owned or controlled corporations or their subsidiaries which are not even very sensitive
positions. So with more reason that the prohibition should apply to appointments in these
bodies.
THE PRESIDENT: Does the Committee accept?
FR. BERNAS: What is common among these people — Ministers, Deputy Ministers,
heads of bureaus or offices — is that they are under the control of the President.
MR. GUINGONA: That is correct.
FR. BERNAS: Whereas, the other offices the Commissioner mentioned are independent
offices.
MR. DAVIDE: The idea of the proposal is that about the end of the term of the President,
he may prolong his rule indirectly by appointing people to these sensitive positions, like
the commissions, the Ombudsman, the JUDICIARY, so he could perpetuate himself in
power even beyond his term of office; therefore foreclosing the right of his successor to
make appointments to these positions. We should realize that the term of the President is
six years and under what we had voted on, there is no reelection for him. Yet he can
continue to rule the country through appointments made about the end of his term to
these sensitive positions.
FR. BERNAS: At any rate, there are other checks as far as the appointment of those
officers is concerned.
MR. DAVIDE: Only insofar as the Commission on Appointments is concerned for
offices which would require consent, and the Judicial Bar Council insofar as the judiciary
is concerned.
FR. BERNAS: We leave the matter to the body for a vote.8 (capitalization and emphasis
supplied)
The clear intent of the framers is thus for the ban on midnight appointments to apply to the
judiciary. The succeeding interpellations9 suggest no departure from this intent.
For almost half a century, the seeds of Aytona, as nurtured and broadened by the Constitution,
have grown into an established doctrine that has weathered legal storms like Valenzuela.
The second ratiocination in the ponencia could thus not remove an added constitutional
safeguard by pretending to have examined and concluded that the establishment of the JBC had
eliminated all encompassing forms of political maneuverings during elections. Otherwise,
reading into the Constitution such conclusion so crucial to the scheme of checks and balances,
which is neither written nor tackled, undermines the noticeable silence or restraint exercised by
the framers themselves from making a definitive analysis.
To illustrate, the instance given in the fifth ratiocination that having the new President appoint
the next Chief Justice cannot ensure judicial independence because the appointee can also
become beholden to the appointing authority bears an inconsistent stance. It does not admit or
recognize that the mechanism of removal by impeachment eliminates the evils of political
indebtedness. In any event, that level of reasoning overlooks the risk of compromising judicial
independence when the outgoing President faces the Court in the charges that may be
subsequently filed against her/him, and when the appointing President is up for re-election in the
peculiar situation contemplated by Section 4, Article VII of the Constitution.
All rules of statutory construction revolt against the interpretation arrived at by the ponencia
It is simplistic and unreliable for the ponencia to contend that had the framers intended to extend
the ban in Article VII to appointments in the judiciary, they would have easily and surely written
so in Article VIII, for it backlashes the question that had the framers intended to exclude judicial
appointments in Article VIII from the prohibition in Article VII, they would have easily and
surely written so in the excepting proviso in Article VII.
Taking into account how the framers painstakingly rummaged through various sections of the
Constitution and came up with only one exception with the need to specify the executive
department, it insults the collective intelligence and diligence of the ConCom to postulate that it
intended to exclude the judiciary but missed out on that one.
To hold that the ban on midnight appointments applies only to executive positions, and not to
vacancies in the judiciary and independent constitutional bodies, is to make the prohibition
practically useless. It bears noting that Section 15, Article VII of the Constitution already allows
the President, by way of exception, to make temporary appointments in the Executive
Department during the prohibited period. Under this view, there is virtually no restriction on the
President’s power of appointment during the prohibited period.
The general rule is clear since the prohibition applies to ALL kinds of midnight appointments.
The Constitution made no distinction. Ubi lex non distinguit nec nos distinguere debemos.
The exception is likewise clear. Expressio unius et exclusio alterius. The express mention of one
person, thing or consequence implies the exclusion of all others.10 There is no clear circumstance
that would indicate that the enumeration in the exception was not intended to be exclusive.
Moreover, the fact that Section 15 was couched in negative language reinforces the exclusivity
of the exception.
Under the rules of statutory construction, exceptions, as a general rule, should be strictly but
reasonably construed; they extend only so far as their language fairly warrants, and all doubts
should be resolved in favor of the general provisions rather than the exception. Where a general
rule is established by statute with exceptions, the court will not curtail the former nor add to the
latter by implication.11 (italics in the original; underscoring supplied)
The proclivity to innovate legal concepts is enticing. Lest the basic rule be forgotten, it helps to
once more recite that when the law is clear, it is not susceptible to interpretation and must be
applied regardless of who may be affected, even if the law may be harsh or onerous.12
In its third ratiocination, the ponencia faults Valenzuela for not according weight and due
consideration to the opinion of Justice Florenz Regalado. It accords high regard to the opinion
expressed by Justice Regalado as a former ConCom Member, to the exception of the opinion of
all others similarly situated.
It bears noting that the Court had spoken in one voice in Valenzuela. The ponencia should not
hastily reverse, on the sole basis of Justice Regalado’s opinion, the Court’s unanimous en banc
decision penned by Chief Justice Andres Narvasa, and concurred in by, inter alia, Associate
Justices who later became Chief Justices – Hilario Davide, Jr., Artemio Panganiban and Reynato
Puno.
The line of reasoning is specious. If that is the case and for accuracy’s sake, we might as well
reconvene all ConCom members and put the matter to a vote among them.
Providentially, jurisprudence is replete with guiding principles to ascertain the true meaning of
the Constitution when the provisions as written appear unclear and the proceedings as recorded
provide little help:
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention "are of value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We think it safer to construe the constitution
from what appears upon its face." The proper interpretation therefore depends more on how it
was understood by the people adopting it than in the framers' understanding thereof.13
(underscoring supplied)
lawph!l
The clear import of Section 15 of Article VII is readily apparent. The people may not be of the
same caliber as Justice Regalado, but they simply could not read into Section 15 something that
is not there. Casus omissus pro omisso habendus est.
What complicates the ponencia is its great preoccupation with Section 15 of Article VII,
particularly its fixation with sentences or phrases that are neither written nor referred to therein.
Verba legis non est recedendum, index animi sermo est. There should be no departure from the
words of the statute, for speech is the index of intention.
IN FINE, all rules of statutory construction virtually revolt against the interpretation arrived at by
the ponencia.
The 90-day period to fill a vacancy in the Supreme Court is suspended during the ban on
midnight appointments
Although practically there is no constitutional crisis or conflict involved upon the retirement of
the incumbent Chief Justice, the ponencia illustrates the inapplicability of the 90-day mandate to
every situation of vacancy in the Supreme Court (i.e., the 19-day vacuum articulated in the sixth
ratiocination) if only to buttress its thesis that judicial appointment is an exception to the
midnight appointments ban. The contemplated situation, however, supports the idea that the 90-
day period is suspended during the effectivity of the ban.
I submit that the more important and less complicated question is whether the 90-day period in
Section 4(1) of Article VIII14 runs during the period of prohibition in Section 15 of Article VII.
In response to that question, the ponencia declares that it is the President’s "imperative duty to
make an appointment of a Member of the Supreme Court within 90 days from the occurrence of
the vacancy [and that t]he failure by the President to do so will be a clear disobedience to the
Constitution."15
The ponencia quotes certain records of the ConCom deliberations which, however, only support
the view that the number of Justices should "not be reduced for any appreciable length of time"
and it is a "mandate to the executive to fill the vacancy". Notably, there is no citation of any
debate on how the framers reckoned or determined an appreciable length of time of 90 days, in
which case a delay of one day could already bring about the evils it purports to avoid and spell a
culpable violation of the Constitution. On the contrary, that the addition of one month to the
original proposal of 60 days was approved without controversy16 ineluctably shows that the
intent was not to strictly impose an inflexible timeframe.
Respecting the rationale for suspending the 90-day period, in cases where there is physical or
legal impossibility of compliance with the duty to fill the vacancy within the said period, the
fulfillment of the obligation is released because the law cannot exact compliance with what is
impossible.
In the present case, there can only arise a legal impossibility when the JBC list is submitted or
the vacancy occurred during the appointments ban and the 90-day period would expire before the
end of the appointments ban, in which case the fresh 90-day period should start to run at noon of
June 30. This was the factual antecedent respecting the trial court judges involved in Valenzuela.
There also arises a legal impossibility when the list is submitted or the vacancy occurred prior to
the ban and no appointment was made before the ban starts, rendering the lapse of the 90-day
period within the period of the ban, in which case the remaining period should resume to run at
noon of June 30. The outgoing President would be released from non-fulfillment of the
constitutional obligation, and the duty devolves upon the new President.
Considering also that Section 15 of Article VII is an express limitation on the President’s power
of appointment, the running of the 90-day period is deemed suspended during the period of the
ban which takes effect only once every six years.
This view differs from Valenzuela in that it does not implement Section 15 of Article VII so as to
breach Section 4(1) of Article VIII. Instead of disregarding the 90-day period in the observance
of the ban on midnight appointments, the more logical reconciliation of the two subject
provisions is to consider the ban as having the effect of suspending the duty to make the
appointment within 90 days from the occurrence of the vacancy. Otherwise stated, since there is
a ban, then there is no duty to appoint as the power to appoint does not even exist. Accordingly,
the 90-day period is suspended once the ban sets in and begins or continues to run only upon the
expiration of the ban.
One situation which could result in physical impossibility is the inability of the JBC to constitute
a quorum for some reasons beyond their control, as that depicted by Justice Arturo Brion in his
Separate Opinion, in which case the 90-day period could lapse without fulfilling the
constitutional obligation.
Another such circumstance which could frustrate the ponencia’s depiction of the inflexibility of
the period is a "no-takers" situation where, for some reason, there are no willing qualified
nominees to become a Member of the Court.17 Some might find this possibility remote, but then
again, the situation at hand or the "absurdity"18 of a 19-day overlapping vacuum may have also
been perceived to be rare.
The seventh ratiocination is admittedly a non-issue. Suffice it to state that the Constitution is
clear that the appointment must come "from a list x x x prepared by the Judicial and Bar
Council."
The Supreme Court can function effectively during the midnight appointments ban without an
appointed Chief Justice
The ponencia also holds that the JBC has until May 17, 2010, at the latest, within which to
submit to the President the list of nominees for the position of Chief Justice. It declares that the
JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court
before the occurrence of the vacancy, explaining that the 90-day period in the proviso, "Any
vacancy shall be filled within ninety days from the occurrence thereof," is addressed to the
President, not to the JBC.
Such interpretation is absurd as it takes the application and nomination stages in isolation from
the whole appointment process. For the ponencia, the filling of the vacancy only involves the
President, and the JBC was not considered when the period was increased from 60 days to 90
days. The sense of the Concom is the exact opposite.19
The flaw in the reasoning is made more evident when the vacancy occurs by virtue of death of a
member of the Court. In that instance, the JBC could never anticipate the vacancy, and could
never submit a list to the President before the 90-day period.
Sustaining the view means20 that in case the President appoints as Chief Justice a sitting member
of the Court, from a JBC list which includes, for instance, incumbent justices and "outsiders," the
JBC must forthwith submit a list of nominees for the post left vacant by the sitting member-now
new Chief Justice. This thus calls for the JBC, in anticipation, to also commence and conclude
another nomination process to fill the vacancy, and simultaneously submit a list of nominees for
such vacancy, together with the list of nominees for the position of Chief Justice. If the President
appoints an "outsider" like Sandiganbayan Justice Edilberto Sandoval as Chief Justice, however,
the JBC’s toil and time in the second nomination process are put to waste.
It is ironic for the ponencia to state on the one hand that the President would be deprived of
ample time to reflect on the qualifications of the nominees, and to show on the other hand that
the President has, in recent history, filled the vacancy in the position of Chief Justice in one or
two days.
It is ironic for the ponencia to recognize that the President may need as much as 90 days of
reflection in appointing a member of the Court, and yet abhor the idea of an acting Chief Justice
in the interregnum as provided for by law,21 confirmed by tradition,22 and settled by
jurisprudence23 to be an internal matter.
The express allowance of a 90-day period of vacancy rebuts any policy argument on the
necessity to avoid a vacuum of even a single day in the position of an appointed Chief Justice.
As a member of the Court, I strongly take exception to the ponencia’s implication that the Court
cannot function without a sitting Chief Justice.
To begin with, judicial power is vested in one Supreme Court24 and not in its individual
members, much less in the Chief Justice alone. Notably, after Chief Justice Puno retires, the
Court will have 14 members left, which is more than sufficient to constitute a quorum.
The fundamental principle in the system of laws recognizes that there is only one Supreme Court
from whose decisions all other courts are required to take their bearings. While most of the
Court’s work is performed by its three divisions, the Court remains one court — single, unitary,
complete and supreme. Flowing from this is the fact that, while individual justices may dissent or
only partially concur, when the Court states what the law is, it speaks with only one voice.25
The Court, as a collegial body, operates on a "one member, one vote" basis, whether it sits en
banc or in divisions. The competence, probity and independence of the Court en banc, or those of
the Court’s Division to which the Chief Justice belongs, have never depended on whether the
member voting as Chief Justice is merely an acting Chief Justice or a duly appointed one.
IN LIGHT OF THE FOREGOING, I vote to hold, for the guidance of the Judicial and Bar
Council, that the incumbent President is constitutionally proscribed from appointing the
successor of Chief Justice Reynato S. Puno upon his retirement on May 17, 2010 until the ban
ends at 12:00 noon of June 30, 2010.
CONCHITA CARPIO MORALES

Associate Justice
Footnotes
1
Vide http://en.wikipedia.org/wiki/Primus_inter_pares (visited: March 10, 2010).
2
Feminine ablative of primus (first among her equals).
3
Constitution, Art. VII, Sec. 15. Two months immediately before the next presidential
elections and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public safety. (emphasis,
italics and underscoring supplied)
4
358 Phil. 896 (1998).
5
G.R. No. 166052, August 29, 2007, 531 SCRA 583, where the petitioner assailed the
placing of the National Commission on Indigenous Peoples as an attached agency of the
Department of Agrarian Reform on the ground that, inter alia, policy and program
coordination between allegedly conceptually different government agencies is
unconstitutional.
6
Id. at 601-603.
7
No. L-19313, January 19, 1962, 4 SCRA 1, 8.
8
Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC No. 44 (CD
Format).
9
Id. Following were the deliberations concerning the prohibition on nepotism, wherein
the deletion of the word "judiciary" was reflected in the final text of Section 13, Article
VII of the Constitution:
MR. TINGSON: Madam President, may I just ask one question of the proponent?
THE PRESIDENT: Commissioner Tingson is recognized.
MR. TINGSON: Even though the members of the President's family are related to
him, shall we bar the men of probity, honesty and specialized technical
knowledge from being appointed?
MR. DAVIDE: That is precisely the core or the meat and the heart of the
prohibition. In effect, it is just extending it to these sensitive positions that I have
mentioned.
MR. TINGSON: But in a sense would that not be counterproductive?
MR. DAVIDE: If that is the thinking of the Commissioner, he should rather

propose for the deletion of the entire sentence since that is really its effect.
MR. TINGSON: Will the Commissioner join me if I do?
MR. DAVIDE: No. As a matter of fact, I am expanding the prohibition. But if the
Commissioner's position is that we might be prohibiting these capable men who
are relatives of the President, then the deletion would be proper, which I am not in
favor of.
MR. TINGSON: Madam President, we have already limited the presidency to one
term, predicated on the fact that he will now become a statesman rather than a
partisan politician. Then he will be acting for the good of our country; that is, we
base that philosophy with that predicate. So I am just wondering why we should
not utilize these men who, according to Commissioner Uka, happen to have
committed a crime of being related to the President.
MR. DAVIDE: Is the Commissioner proposing that as an amendment to my

amendment?
MR. TINGSON: I would like to.
MR. DAVIDE: In the sense that the Commissioner's amendment is to delete the
entire sentence?
MR. TINGSON: Is that the Commissioner's thinking also?
MR. DAVIDE: No, I am entirely for the opposite.
MR. TINGSON: Then, I am not insisting anymore.
MR. DAVIDE: If the Commissioner is introducing it as an amendment, I am

sorry, I have to reject his proposal.
THE PRESIDENT: So, let us now proceed to the amendment of Commissioner

Davide.
MR. GUINGONA: Madam President, may I just offer one more amendment to
the distinguished proponent? After the word "JUDICIARY," we insert: EXCEPT
JUDGES OF THE METROPOLITAN TRIAL COURTS.
MR. DAVIDE: To avoid any further complication, I would agree to delete

"JUDICIARY."
MR. GUINGONA: Thank you.
MR. DAVIDE: So, on line 5, the only amendment would consist of the following:
after the word "as," insert MEMBERS OF THE CONSTITUTIONAL
COMMISSIONS OR THE OFFICE OF THE OMBUDSMAN.
THE PRESIDENT: Does the Committee prefer to throw this to the body?
MR. REGALADO: We prefer that we submit it to the body.
VOTING
THE PRESIDENT: Those in favor of this proposed amendment of Commissioner

Davide on page 9, line 5, to include these two offices: the constitutional
commissions and the office of the Ombudsman, please raise their hand. (Several
Members raised their hand.)
Those against the proposed amendment will please raise their hand. (Few
Members raised their hand.)
The results show 24 votes in favor and 9 against; the amendment is approved.
MR. ROMULO: Madam President, we are almost at the end of our long journey. I
ask for continued patience on the part of everyone. We are now on Section 20.
We have consolidated all the amendments for presentation by one person; and that
is, Commissioner Sarmiento. Will the Chair recognize him please? (emphasis,
italics and underscoring supplied).
10
The Iloilo City Zoning Board of Adjustment & Appeals v. Gegato-Abecia Funeral
Homes, Inc., 462 Phil. 803, 815 (2003).
11
Samson v. Court of Appeals, No. L-43182, November 25, 1986, 145 SCRA 654, 659.
12
Pascual v. Pascual-Bautista, G.R. No. 84240, March 25, 1992, 207 SCRA 561, 568.
13
Francisco, Jr., v. The House of Representatives, 460 Phil. 830, 887 (2003), citing Civil
Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA
317, 337-338.
14
Constitution, Art. VIII, Sec. 4 (1). The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division
of three, five, or seven members. Any vacancy shall be filled within ninety days from the
occurrence thereof. (emphasis and underscoring supplied)
15
Decision, p. 37.
16
Infra note 18.
17
There is no problem in the case of lower courts since the 90-day period starts from the
submission of the list to the President. Parenthetically, over and above the alleged level of
importance and urgency between the Court and the lower courts, the lack of applicants
for judicial posts in the province is a practical reason why the 90-day period for lower
courts is reckoned from the submission of the JBC list. Otherwise, one could just imagine
the countless constitutional violations incurred by the President.
18
Vide Decision, p. 45.
19
Record of the 1986 Constitutional Commission, Vol. 1, July 14, 1986, RCC No. 29
(CD Format. Commissioner Romulo stated that "[t]he sense of the Committee is that 60
days is awfully short and that the [Judicial and Bar] Council, as well as the President,
may have difficulties with that."
20
In which case the Court’s complement remains incomplete with still 14 members.
21
Republic Act No. 296 (Judiciary Act of 1948), Section 12 states that in case of a
vacancy in the office of Chief Justice, the Associate Justice who is first in precedence
may act as Chief Justice until one is appointed and duly qualified.
22
Since the time of Chief Justice Cayetano Arellano, this rule of succession has been
observed throughout the Court’s history whenever the position of Chief Justice is
temporarily vacant for any reason. Vide Revised copy of Special Order No. 826 (March
16, 2010) issued by Chief Justice Reynato S. Puno who goes on wellness and sabbatical
leave from March 18-30, 2010 designating Senior Associate Justice Antonio T. Carpio as
acting Chief Justice effective March 18, 2010 until Chief Justice Puno reports back to
work.
23
Cf. Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18, 1990, 192 SCRA 358.
24
Constitution, Art. VIII, Sec. 1.
25
Complaint of Mr. Aurelio Indencia Arrienda against Justice Puno, 499 Phil. 1, 14-15
(2005).
SEPARATE OPINION
NACHURA, J.:
"No amount of exigency can make this Court exercise a power where it is not proper."1
I am deeply impressed by the very well written ponencia of Justice Lucas P. Bersamin. However,
I am unable to concur in all of his conclusions. Instead, I vote to dismiss all the petitions because
they have utterly failed to present a justiciable controversy.
The Antecedents
In recent weeks, two potential scenarios have gripped the public mind. The first is the specter of
the failure of our first ever automated election which has evoked numerous doomsday
predictions. The second is the possibility of the appointment by President Gloria Macapagal
Arroyo of the Chief Justice of the Supreme Court—after the compulsory retirement of incumbent
Chief Justice Reynato S. Puno on May 17, 2010. This has generated frenzied debates in media, in
various lawyers’ assemblies, in the academe, and in coffee shops. It has even spawned a number
of rallies and demonstrations by civil society groups and by self-styled constitutional experts.
It does not matter that these two situations are merely possibilities, that they are conjectural and
speculative at this moment in time. They have, nonetheless, captured the public imagination, and
have ushered an open season for unfettered discussion and for dire prognostication.
Not unexpectedly, the controversy posed by the second scenario— involving concerns closest to
home—has arrived in this Court through various petitions and interventions.
The core issue is whether the sitting President of the Philippines, Gloria Macapagal Arroyo, can
validly appoint the Chief Justice of the Supreme Court when the incumbent Chief Justice,
Reynato S. Puno, compulsorily retires on May 17, 2010, in light of two apparently conflicting
provisions of the Constitution.
Article VII, Section 15, provides a constitutional limitation on the President’s power of
appointment, viz.:
Sec. 15. Two months immediately before the next presidential elections and up to the end of his
term, a President or Acting President shall not make appointments, except temporary
service or endanger public safety.2
On the other hand, Article VIII, Section 4(1) contains an express mandate for the President to
appoint the Members of the Supreme Court within ninety days from the occurrence of a vacancy,
thus—
Sec. 4(1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Justices. It may sit en banc or, in its discretion, in divisions of three, five, or seven Members.
Any vacancy shall be filled within ninety days from the occurrence thereof.3 in relation to Article
VIII, Section 9, which states that—
Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar Council for
every vacancy. Such appointments need no confirmation. Any vacancy shall be filled within
ninety days from the occurrence thereof.
For the lower courts, the President shall issue the appointments within ninety days from the
The perceived conflict was resolved in administrative matter, In Re Appointments Dated March
30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional
Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively.4 Therein,
the Court was confronted with the question of whether the appointments of the concerned RTC
judges, issued within two months before the presidential election in 1998, were valid. The Court
answered that, in the given situation, Article VII, Section 15, has primacy over Article VIII,
Section 4(1), because the former was "couched in stronger negative language." Accordingly, the
appointments were nullified. However, Valenzuela’s applicability to the present controversy is
challenged by most of herein petitioners.
The petitions were filed following certain acts of the Judicial and Bar Council (JBC) related to
the constitutional procedure for the appointment of Supreme Court justices, specifically in the
matter of the appointment of Chief Justice Puno’s successor. On January 18, 2010, the JBC
passed a Resolution which relevantly reads:
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of
filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the
incumbent Chief Justice Honorable Reynato S. Puno.
It will publish the opening of the position for applications or recommendations; deliberate on the
list of candidates; publish the names of candidates; accept comments on or opposition to the
applications; conduct public interviews of candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in the light of the
Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on
the matter.5
On January 20, 2010, the JBC formally announced the opening, for application or
recommendation, of the position of Chief Justice of this Court, thus—
The Judicial and Bar Council (JBC) announces the opening for application or recommendation,
of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17
May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be submitted not later than 4 February
2010 (Thursday) to the JBC Secretariat. x x x.6
In its February 8, 2010 meeting, the JBC decided to proceed with the process of announcing to
the public the names of the candidates for the position. Included in the list of applicants are: (1)
Brion, Arturo D.; (2) Carpio, Antonio T.; (3) Corona, Renato C.; (4) Carpio Morales, Conchita;
(5) Leonardo-de Castro, Teresita J.; and (6) Sandoval, Edilberto G.7
These developments, having already engendered near-hysterical debates, impelled a number of

petitioners to file suit. However, obviously hedging against the possibility that the cases would
be disallowed on the ground of prematurity, petitioners came to Court using different procedural
vehicles.
In G.R. No. 191002, petitioner Arturo de Castro entreats the Court to issue a writ of mandamus
to compel the JBC to send the list of nominees for Chief Justice to the incumbent President when
the position becomes vacant upon the retirement of Chief Justice Puno on May 17, 2010.
The Philippine Constitution Association (PHILCONSA) and John Peralta, petitioners in G.R.
Nos. 191057 and 191149, respectively, plead for the same relief.
In G.R. No. 191032, Jaime Soriano seeks the issuance by the Court of a writ prohibiting the JBC
from continuing with its proceedings, particularly the screening of applicants for Chief Justice,
based on the hypothesis that the authority to appoint the Chief Justice pertains exclusively to the
Supreme Court. He posits that it is the Court that must commence its own internal proceeding to
select the successor of Chief Justice Puno.
Amador Tolentino, Jr., in G.R. No. 191342, asks this Court to enjoin and restrain the JBC from
submitting the list of nominees for judiciary positions, including that of Chief Justice, to the
incumbent President during the period covered in Article VII, Section 15 of the Constitution.
In a cleverly crafted petition which he denominated an administrative matter, former Solicitor
General Estelito P. Mendoza filed A.M. No. 10-2-5-SC, imploring this Court to rule, for the
guidance of the JBC, whether the constitutional prohibition in Article VII, Section 15, applies to
positions in the judiciary and whether the incumbent President may appoint the successor of
Chief Justice Puno upon the latter’s retirement.
Notably, although the petitions sport different appellations (for mandamus, or prohibition, or
even as an administrative matter), they (except the Soriano petition) share a common bottom line
issue, i.e., a definitive ruling on whether, in light of the perceived conflict between Article VII,
Section 15, and Article VIII, Section 4(1), the incumbent President can validly appoint a Chief
Justice after Chief Justice Puno retires on May 17, 2010.
Thus, the Court consolidated the petitions and required the JBC and the Office of the Solicitor
General (OSG) to file their respective comments.
Significantly, the JBC, in its February 25, 2010 Comment, stated:
11. The next stage of the process which will be the public interview of the candidates, and the
preparation of the shortlist of candidates have yet to be undertaken by the JBC as of this date,
including the interview of the constitutional experts, as may be needed.
Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper
appointing authority, in light of Section 4(1), Article VIII of the Constitution, which provides
that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence
thereof, Section 15, Article VIII of the Constitution concerning the ban on Presidential
appointments "two (2) months immediately before the next presidential elections and up to the
end of his term" and Section 261(g), Article XXII of the Omnibus Election Code of the
Philippines.8
On the other hand, the OSG, in its Comment dated February 26, 2010, took the position that the
incumbent President of the Philippines can appoint the successor of Chief Justice Puno when he
retires on May 17, 2010, because the prohibition in Article VII, Section 15, of the Constitution
does not apply to appointments in the Supreme Court.
Meanwhile, several motions for intervention with oppositions-in-intervention were received by

the Court.
Oppositors-Intervenors Antonio Gregorio III, Peter Irving Corvera, Walden Bello, Loretta Ann
Rosales, and National Union of Peoples’ Lawyers uniformly contend in their pleadings that the
consolidated petitions should be dismissed outright, because of the absence of an actual case or
controversy ripe for judicial adjudication and because of petitioners’ lack of legal standing to
institute the cases.
Oppositor-Intervenor Mitchell John Boiser posits, among others, that the petitions for mandamus
are premature because there is yet no final list of nominees and the position of Chief Justice is
not yet vacant.
Oppositors-Intervenors Yolanda Quisumbing-Javellana, Belleza Alojado Demaisip, Teresita
Gandionco-Oledan, Ma. Verena Kasilag-Villanueva, Marilyn Sta. Romana, Leonila de Jesus, and
Guinevere de Leon contend, among others, that the incumbent President is prohibited from
making appointments within the period prescribed in Article VII, Section 15; that the next
President will still have ample time to appoint a Chief Justice when Chief Justice Puno retires on
May 17, 2010 before the 90-day period for appointment mandated in Article VIII, Section 4(1)
expires; and that in the interim, the duties of the Chief Justice can be exercised by the most
senior of the incumbent Supreme Court justices.
My Position
After careful perusal of the pleadings and painstaking study of the applicable law and
jurisprudence, I earnestly believe that the consolidated petitions should be dismissed, because
they do not raise an actual case or controversy ripe for judicial determination.
As an essential ingredient for the exercise of the power of judicial review, an actual case or
controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible to
judicial resolution.9 The controversy 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 one hand, and a denial thereof, on the other;
that is, the case must concern a real and not a merely theoretical question or issue. There ought to
be an actual and substantial controversy admitting of specific relief through a decree conclusive
in nature, as distinguished from an opinion advising what the law would be upon a hypothetical
state of facts.10 The rationale for this requirement is to prevent the courts through avoidance of
premature adjudication from entangling themselves in abstract disagreements, and for us to be
satisfied that the case does not present a hypothetical injury or a claim contingent upon some
event that has not and indeed may never transpire.11
Thus, justiciability requires (1) that there be an actual controversy between or among the parties
to the dispute; (2) that the interests of the parties be adverse; (3) that the matter in controversy be
capable of being adjudicated by judicial power; and (4) that the determination of the controversy
will result in practical relief to the complainant.12
By these standards, the consolidated petitions do not present a justiciable controversy because of
the absence of clashing legal rights. The JBC has merely started the selection process by
accepting applications and nominations for the position of Chief Justice. This is only the initial
stage of the procedure for appointment of a Chief Justice. By the JBC’s own admission, it has yet
to undertake the public interview of the applicants; it has yet to prepare the shortlist and to
decide whether it needs to interview constitutional experts.
Arturo de Castro and John Peralta justify the propriety of the filing of their respective petitions
for certiorari and mandamus by a common thread: that the JBC has deferred its decision as to
whom to submit the list of nominees.13 They are then asking the Court to compel the JBC to
submit the list to the incumbent President.
De Castro’s and Peralta’s submission tends to mislead the Court. It is clear from the narrated
facts that there is yet no list to submit. The JBC is still in the process of screening applicants for
the position. Since there is no list to be submitted, there can be no deferment of its submission.
De Castro and Peralta have not shown or even alleged that the JBC has refused or has been
unlawfully neglecting14 to submit its list, if it is already in existence, to the incumbent President.
Mandamus is proper only to compel the performance, when refused, of a ministerial duty.15 The
mandamus petition therefore has no leg to stand on as it presents no actual case ripe for judicial
determination.
PHILCONSA, for its part, contends that two applicants for the post, Justices Carpio and Carpio
Morales, manifested their interest in their nomination on the condition that the same will be
submitted to the next President. According to PHILCONSA, this fact "has created a
dilemma/quandary to respondent JBC whether to exclude [from] or include [in the list] the
names of said two Senior Justices."16 It then prays for this Court to rule on the issue.
PHILCONSA, like de Castro and Peralta, is not completely truthful. From its comment, it
appears that, as early as February 10, 2010, the JBC had already included the two justices,
despite their conditional acceptance of their nominations, in the list of applicants for the post.
There is no quandary to speak of.
To justify their petitions for prohibition, Jaime Soriano and Amador Tolentino, Jr. allege that the
JBC has already started the screening process for Chief Justice.17 Thus, they claim that the Court
can now resolve the constitutional question and issue the writ prohibiting the JBC from
submitting the list of nominees to the incumbent President.
As earlier mentioned, absent a shortlist of nominees for Chief Justice prepared by the JBC, there
is yet nothing that the Court can prohibit the JBC from submitting to the incumbent President.
The JBC has not even intimated concretely that it will perform the act sought to be prohibited—
submitting a list to the incumbent President. The JBC merely started the screening process. Let it
be noted that a writ of prohibition is issued to command a respondent to desist from further
proceeding in the action or matter specified.18 Likewise, without a shortlist, there is nothing that
this Court can mandate the JBC to submit to the President.
As to the petition filed by Estelito Mendoza, while it is captioned as an administrative matter, the
same is in the nature of a petition for declaratory relief. Mendoza pleads that this Court interpret
two apparently conflicting provisions of the Constitution—Article VII, Section 15 and Article
VIII, Section 4(1). Petitioner Mendoza specifically prays for such a ruling "for the guidance of
the [JBC]," a relief evidently in the nature of a declaratory judgment.
Settled is the rule that petitions for declaratory relief are outside the jurisdiction of this Court.19
Moreover, the Court does not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging.20 While Mendoza and the other petitioners espouse
worthy causes, they have presented before this Court issues which are still subject to unforeseen
possibilities. In other words, the issues they raised are hypothetical and unripe for judicial
determination.
At this point, several contingent events are still about to unfold. The JBC, after it has screened
the applicants, may decide to submit the shortlist of nominees either before or after the
retirement of Chief Justice Puno. If it decides to submit the list after May 17, 2010, it may opt to
transmit said list of nominees to President Macapagal-Arroyo or to the next President. If the list
is transmitted to her, the incumbent President may either appoint or not appoint the replacement
of Chief Justice Puno. We cannot assume that the JBC will do one thing or the other. Neither can
we truly predict what the incumbent President will do if such a shortlist is transmitted to her. For
us to do so would be to engage in conjecture and to undertake a purely hypothetical exercise.
Thus, the situation calling for the application of either of the conflicting constitutional provisions
will arise only when still other contingent events occur. What if the JBC does not finish the
screening process during the subject period? What if the President does not make the
appointment? Verily, these consolidated petitions involve "uncertain contingent future events
that may not occur as anticipated, or indeed may not occur at all," similar to the recently decided
Lozano v. Nograles,21 which this Court dismissed through the pen of Chief Justice Puno. As no
positive act has yet been committed by respondents, the Court must not intervene. Again, to
borrow the words of Chief Justice Puno in Lozano, "judicial review is effective largely because it
is not available simply at the behest of a partisan faction, but is exercised only to remedy a
particular, concrete injury."
Further, the Mendoza petition cannot be likened to the administrative matter in In Re

Appointments of Hon. Valenzuela & Hon. Vallarta,22 over which the Court assumed jurisdiction.
In that case, the President appointed judges within the constitutional ban and transmitted the
appointments to the Chief Justice. Clearly, an actual controversy ripe for judicial determination
existed in that case because a positive act had been performed by the President in violation of the
Constitution. Here, as shown above, no positive act has been performed by either the JBC or the
President to warrant judicial intervention.
To repeat for emphasis, before this Court steps in to wield its awesome power of deciding cases,
there must first be an actual controversy ripe for judicial adjudication. Here, the allegations in all
the petitions are conjectural or anticipatory. No actual controversy between real litigants exists.23
These consolidated petitions, in other words, are a "purely academic exercise." Hence, any
resolution that this Court might make would constitute an attempt at abstraction that can only
lead to barren legal dialectics and sterile conclusions unrelated to actualities.24
Moreover, the function of the courts is to determine controversies between litigants and not to
give advisory opinions.25 Here, petitioners are asking this Court to render an advisory opinion on
what the JBC and the President should do. To accede to it is tantamount to an incursion into the
functions of the executive department.26 This will further inappropriately make the Court an
adviser of the President. Chief Justice Enrique Fernando, in his concurring opinion in Director of
Prisons v. Ang Cho Kio,27 specifically counseled against this undue portrayal by the Court of the
alien role of adviser to the President, thus—
Moreover, I would assume that those of us entrusted with judicial responsibility could not be
unaware that we may be laying ourselves open to the charge of presumptuousness. Considering
that the exercise of judicial authority does not embrace the alien role of a presidential adviser, an
indictment of officiousness may be hard to repel. It is indefinitely worse if the advice thus
gratuitously offered is ignored or disregarded. The loss of judicial prestige may be incalculable.
Thereafter, there may be less than full respect for court decisions. It would impair the confidence
in its ability to live up to its trust not only on the part of immediate parties to the litigation but of
the general public as well. Even if the teaching of decided cases both here and in the Philippines
is not as clear therefore, there should be, to say the least, the utmost reluctance on the part of any
court to arrogate for itself such a prerogative, the exercise of which is fraught with possibilities
of such undesirable character.
The ponencia holds that "we need not await the occurrence of the vacancy by May 17, 2010 in
order to have the principal issue be ripe for judicial determination." That may very well be
desirable. But still, there must be the palpable presence of an actual controversy because, again,
as discussed above, this Court does not issue advisory opinions. The Court only adjudicates
actual cases that present definite and concrete controversies touching on the legal relations of the
parties having adverse legal interests.
The ponencia also sought refuge in the American cases of Buckley v. Valeo28 and Regional Rail
Reorganization Act Cases29 to support its position that "the reasonable certainty of the
occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for
bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently
adjudicate the issues." The cited American cases only considered the issue of ripeness and did
not confront the absence of an actual case or controversy. Further, in Buckley, the members of
the Commission were already appointed under the statute being challenged as unconstitutional,
and they were about to exercise powers under the likewise challenged provisions of the statute.
Thus, in those cases, there was the inevitability of the operation of a challenged statute against
the appellants. No such situation exists in the cases before us.
Here, the factual and legal setting is entirely different. The JBC only started the screening of the
applicants. It has not yet transmitted a list to the President, as, in fact, it still has to make the list.
The President has not yet made an appointment for there is yet no vacancy and no shortlist has
yet been transmitted to her. The constitutional provisions in question are not yet in operation;
they may not even be called into operation. It is not time for the Court to intervene.
A final note. If petitioners only want guidance from this Court, then, let it be stated that enough
guidance is already provided by the Constitution, the relevant laws, and the prevailing
jurisprudence on the matter. The Court must not be unduly burdened with petitions raising
abstract, hypothetical, or contingent questions. As fittingly phrased by Chief Justice Puno in
Lozano –
Given the sparseness of our resources, the capacity of courts to render efficient judicial service to
our people is severely limited. For courts to indiscriminately open their doors to all types of suits
and suitors is for them to unduly overburden their dockets, and ultimately render themselves
ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary
today.30
With the above disquisition, I find no compelling need to discuss the other issues raised in the
consolidated petitions.
In light of the foregoing, I vote for the dismissal of the consolidated petitions.
ANTONIO EDUARDO B. NACHURA

Associate Justice
Footnotes
1
Chief Justice Reynato S. Puno in Atty. Oliver O. Lozano and Atty. Evangeline J.
Lozano-Endriano v. Speaker Prospero C. Nograles, Representative, Majority, House of
Representatives; Louis "Barok" C. Biraogo v. Speaker Prospero C. Nograles, Speaker of
the House of Representatives, Congress of the Philippines, G.R. Nos. 187883 & 187910,
June 16, 2009.
2
Emphasis supplied.
3
Emphasis supplied.
4
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
5
http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf (visited: March 11, 2010).
6
http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan.22’10.pdf (visited:
March 11, 2010).
7
8
Italics supplied.
9
Congressman Enrique T. Garcia of the 2nd District of Bataan v. The Executive
Secretary, The Secretary of the Department of Energy, Caltex Philippines, Inc., Petron
Corporation, and Pilipinas Shell Corporation, G.R. No. 157584, April 2, 2009.
10
Information Technology Foundation of the Philippines v. Commission on Elections,
G.R. No. 159139, June 15, 2005, 460 SCRA 291, 312-313.
11
Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A.2d
709 (2004).
12
Astoria Federal Mortgage Corporation v. Matschke, 111 Conn. App. 462, 959 A.2d
652 (2008).
13
De Castro petition, p. 5; and Peralta petition, p. 1.
14
Section 3 of Rule 65 pertinently provides that:
Sec. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or

person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, 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 damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
15
Pefianco v. Moral, 379 Phil. 468, 479 (2000).
16
PHILCONSA petition, p. 5.
17
Soriano petition, p. 4; and Tolentino petition, p. 2.
18
Section 2 of Rule 65 provides that:
Sec. 2.—Petition for prohibition.—When the proceedings of any tribunal,

corporation, board, officer or person, whether exercising judicial, quasi-judicial or
ministerial functions, are without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is
no appeal or any other plain, speedy, and adequate remedy in the ordinary course
of law, a person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or
matter specified therein, or otherwise granting such incidental reliefs as law and
justice may require.
19
Article VIII, Section 5 of the Constitution does not include petitions for declaratory
relief among those within the original jurisdiction of the Supreme Court. Section 1 of
Rule 63 further provides that:
Sec. 1.—Who may file petition.—Any person interested under a deed, will,
contract or other written instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or any other governmental regulation
may, before breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or validity arising,
and for a declaration of his rights or duties, thereunder.
20
Albay Electric Cooperative, Inc., Edgardo A. San Pablo, and Evan Calleja v. Hon.
Rafael P. Santelices, in his capacity as the Presiding Judge of the Regional Trial Court of
Legazpi City, Branch No. 2, and Mayon International Hotel, Inc., G.R. No. 132540, April
16, 2009.
21
Supra note 1.
22
358 Phil. 896 (1998).
23
See Confederation of Sugar Producers Association, Inc. v. Department of Agrarian
Reform, G.R. No. 169514, March 30, 2007, 519 SCRA 582, 620; Board of Optometry v.
Hon. Colet, 328 Phil. 1187, 1206 (1996); and Abbas v. Commission on Elections, G.R.
Nos. 89651 & 89965, November 10, 1989, 179 SCRA 287, 300.
24
Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 429 (1998); Angara v. Electoral
Commission, 63 Phil. 139, 158 (1936).
25
Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January 18,
2005, 449 SCRA 1, 10.
26
See Sec. Guingona, Jr. v. Court of Appeals, supra note 24.
27
33 Phil. 494, 510 (1970).
28
424 US 1 (1976).
29
419 US 102 (1974).
30
Supra note 1.
SEPARATE OPINION
BRION, J.:
I AGREE with the conclusion that the President can appoint the Chief Justice and Members of
the Supreme Court two months before a presidential election up to the end of the President’s
term, but DISAGREE with the conclusion that the authority to appoint extends to the whole
Judiciary.
I. Prefatory Statement
The debate, in and out of this Court, on the issues these consolidated cases pose, have been
differently described to be at varying levels of severity and intensity. What we in Court do know
is the multiplicity of petitions and interventions filed, generating arguments of varying shades of
validity. Sad but true, what we need in considering all these submissions is simplification and
focus on the critical issues, not the mass of opinions that merely pile on top of one another.
Based on this standard, this Opinion shall endeavor to be brief, succinct but clear, and may not
be the academic treatise lay readers and even lawyers customarily expect from the Court.
The constitutional provisions whose interpretation and application are disputed (the disputed
provisions) are Section 15, Article VII (the Article on the Executive Department) and Sections
4(1) and 9 of Article VIII (on the Judicial Department). Not often mentioned but critical to the
consideration of the disputed provision is Section 8, Article VIII on the Judicial and Bar Council
(JBC) – the entity whose acts are under scrutiny in the dispute.
Section 15 of Article VII provides:
Section 15. Two months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make appointments, except temporary
service or endanger public safety.
On the other hand, the relevant Judicial Department provisions read:
Section 4(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence thereof.
xxx
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private
sector.
(2) The regular members of the Council shall be appointed by the President for a term of
four years with the consent of the Commission on Appointments. Of the Members first
appointed, the representative of the Integrated Bar shall serve for four years, the professor
of law for three years, the retired justice for two years, and the representative of the
private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and
shall keep a record of its proceedings.
(4) The regular members of the Council shall receive such emoluments as may be
determined by the Supreme Court. The Supreme Court shall provide in its annual budget
the appropriations of the Council.
(5) The Council shall have the principal functions of recommending appointees to the
Judiciary. It may exercise other functions and duties as the Supreme Court may assign to
it.
Section 9. The Members of the Supreme Court and the judges of the lower courts shall be
appointed by the President from a list of at least three nominees prepared by the Judicial and Bar
Council for every vacancy. Such appointment needs no confirmation.
For the lower courts, the President shall issue the appointment within ninety days from the
These provisions are quoted together to stress the role the JBC plays in the appointment process,
and that it is effectively an adjunct of the Supreme Court: the Council is under the supervision
of the Court, but is fully independent in undertaking its main function; the Chief Justice is the
Chair, with the SC Clerk of Court as the Secretary; the emoluments of Council members are
determined by the Court with the Council budget a part of the SC budget; and the SC may assign
functions and duties to the Council.
II. The Questions of Standing & Justiciability
I completely agree with the ponencia’s ruling on the parties’ standing, their locus standi, to bring
their petitions and interventions in their capacities as citizens and lawyers who stand to be
affected by our ruling as lawyers or by the impact of our ruling on the nation and the all-
important electoral exercise we shall hold in May 2010. Jurisprudence is replete with precedents
on the liberal appreciation of the locus standi rule on issues that are of transcendental concern to
the nation,1 and the petitioners very well qualify under these rulings. In this sense, locus standi is
not a critical issue in the present case. In fact, the concern voiced out during the Court’s
deliberations, is more on how participation can be limited to those who have substantial
contributions, through their submissions, to the resolution of the grave issues before the Court.
While the rule on locus standi can be relaxed, the rule on the need for an actual justiciable case
that is ripe for adjudication addresses a different concern and cannot be similarly treated. I
disagree with the ponencia’s ruling on justiciability as I believe some of the petitions before us
do not reach the required level of justiciability; others, however, qualify as discussed below so
that my disagreement with the lack of justiciability of some of the petitions need not hinder the
Court’s consideration of the main issue at hand.
The basic requisite before this Court can rule is the presence of an actual case calling for the
exercise of judicial power. This is a requirement that the Constitution itself expressly imposes; in
granting the Court judicial power and in defining the grant, the Constitution expressly states that
judicial power includes the duty to settle actual controversies involving rights which are legally
demandable and enforceable.2 Thus, the Court does not issue advisory opinions, nor do we pass
upon hypothetical cases, feigned problems or friendly suits collusively arranged between parties
without real adverse interests. Courts cannot adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging they may be. As a condition precedent to
the exercise of judicial power, an actual controversy between litigants must first exist.3
An actual case or controversy exists when a case involves a clash of legal rights or an assertion
of opposite legal claims that the courts can resolve through the application of law and
jurisprudence. The case cannot be abstract or hypothetical as it must be a concrete dispute
touching on the legal relations of parties having adverse legal interests. A justiciable controversy
admits of specific relief through a decree that is conclusive in character, whereas an opinion only
advises what the law would be upon a hypothetical state of facts. An actual case is ripe for
adjudication when the act being challenged has a direct adverse effect on the individual
challenging it.4
In the justiciable cases this Court has passed upon, particularly in cases involving constitutional
issues, we have held that the Court also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. The Court carries the symbolic function of
educating the bench and the bar on the extent of protection given by constitutional guarantees.5
Separately from the above concept of claims involving demandable rights and obligations (but
no less real in the strict constitutional sense), is the authority of the Supreme Court to rule on
matters arising in the exercise of its power of supervision.
Under Section 6 of Article VIII of the Constitution, the Supreme Court is granted the power of
administrative supervision over all courts and the personnel thereof. Pursuant to this power, the
Court issues administrative circulars and memoranda to promote the efficient and effective
administration of justice, and holds judges and court personnel administratively accountable for
lapses they may commit.6 Through these circulars, memoranda and administrative matters and
cases, the Court likewise interprets laws relevant to its power of supervision.7 The Court likewise
issues rules concerning, among others, the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, and the
Integrated Bar.8
This aspect of the power of the Court – its power of supervision – is particularly relevant in this
case since the JBC was created "under the supervision of the Supreme Court," with the "principal
function of recommending appointees to the Judiciary." In the same manner that the Court
cannot dictate on the lower courts on how they should decide cases except through the appeal
and review process provided by the Rules of Court, so also cannot the Court intervene in the
JBC’s authority to discharge its principal function. In this sense, the JBC is fully independent as
shown by A.M. No. 03-11-16-SC or Resolution Strengthening The Role and Capacity of the
Judicial and Bar Council and Establishing the Offices Therein. In both cases, however and unless
otherwise defined by the Court (as in A.M. No. 03-11-16-SC), the Court can supervise by
ensuring the legality and correctness of these entities’ exercise of their powers as to means and
manner, and interpreting for them the constitutional provisions, laws and regulations affecting
the means and manner of the exercise of their powers as the Supreme Court is the final authority
on the interpretation of these instruments. A prime example of the exercise of the Court’s power
of supervision is In Re: Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and
Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City, and of
Branch 24, Cabanatuan City, respectively, A.M. No. 98-5-01-SC, November 9, 1998 (hereinafter
referred to as Valenzuela) where the Court nullified the oath of office taken by Judge
Valenzuela, while at the same time giving its interpretation of how the election ban against
appointment operates on the Judiciary, thereby setting the guidelines on how Section 15, Article
VII is to be read and interpreted. The Valenzuela case shall be discussed more fully below.
a. The De Castro Petition
In his petition for certiorari and mandamus, Arturo De Castro (in G.R. 191002) seeks the review
of the action of the JBC deferring the sending to the incumbent President of the list of nominees
for the position of Chief Justice, and seeks as well to compel the JBC to send this list to the
incumbent President when the position of Chief Justice becomes vacant. He posits that the JBC’s
decision to defer action on the list is both a grave abuse of discretion and a refusal to perform a
constitutionally-mandated duty that may be compelled by mandamus.9
On its face, this petition fails to present any justiciable controversy that can be the subject of a
ruling from this Court. As a petition for certiorari, it must first show as a minimum requirement
that the JBC is a tribunal, board or officer exercising judicial or quasi-judicial functions and is
acting outside its jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.10 A petition for mandamus, on the other hand, at the very least must show that a
tribunal, corporation, board or officer unlawfully neglects the performance of an act which the
law specifically enjoins as a duty."11
The petition facially fails to characterize the JBC as a council exercising judicial or quasi-judicial
functions, and in fact states that the JBC does not have any judicial function.12 It cannot so
characterize the JBC because it really does not exercise judicial or quasi-judicial functions. It is
not involved in the determination of rights and obligations based on the constitution, laws and
regulations; it is an administrative body under the supervision of the Supreme Court and was
created principally to nominate appointees to the Judiciary.13 As such, it deals solely with the
screening of applicants who wish to have the privilege of applying for judicial positions.
From the point of view of substance, the petition admits that the vacancy for the position of
Chief Justice will not occur until May 17, 2010, and alleges that the JBC has resolved "to defer
the decision to whom to send the list of 3 nominees, whether to the incumbent President or to the
next President following the May 11, 2010 national elections in view of Section 15, Article VII
of the Constitution that bans appointments during the election period,"14 citing various
newspaper clippings and the judicial notice of this Court.15
As suggested, we take judicial notice of the JBC action on the nomination process for the
position of Chief Justice, as circulated in the media and as evidenced by official JBC records,
and we note that the JBC has taken preliminary steps but not conclusive action on the submission
of a list of nominees for the position of Chief Justice.16 So far, the JBC has announced the
forthcoming vacancy, the opening of the position to applicants,17 the announcement of nominees,
and the invitation for comments.18 These are confirmed in the JBC’s Comment dated February
25, 2010 which further states that "the next stage of the process will be the public interview of
the candidates, and the preparation of the shortlist of candidates have yet to be undertaken..
..including the interview of the constitutional experts as may be needed."19 Thus, this Court is
fully aware, based on its official knowledge that the petition cites, of the extent of JBC
developments in the nomination process, and the petition cannot invoke our judicial notice to
validly allege that the JBC has deferred action on the matter. For the petition insist that a
deferment has taken place is to mislead this Court on a matter that is within its official
knowledge.
Neither the Constitution nor the Rules of Procedure of the JBC20 categorically states when a list
of nominees for a vacant Supreme Court position shall be submitted to the President, although
the Constitution gives the President 90 days within which to fill the vacancy.21 This presidential
deadline implies that the JBC should submit its list of nominees before, or at the latest, on the
day the vacancy materializes so as not to shorten the 90-day period given to the President within
which to act.
Given these timelines and the May 17, 2010 vacancy date – considered with the allegations
regarding the nature of the JBC’s functions and its actions that we are asked to judicially notice –
the De Castro petition filed on February 9, 2010 clearly does not present a justiciable case for the
issuance of a writ of certiorari. The petition cannot make an incorrect and misleading
characterization of the JBC action, citing our judicial notice as basis, and then proceed to claim
that grave abuse of discretion has been committed. The study of the question of submitting a list
to the President in the JBC’s step-by-step application and nomination process is not a grave
abuse of discretion simply because the petition calls it so for purposes of securing a justiciable
case for our consideration.22
Since the obligation to submit a list will not accrue until immediately before or at the time the
vacancy materializes (as the petition’s prayer in fact admits), no duty can likewise be said to
have as yet been neglected or violated to serve as basis for the special civil action of mandamus.
The JBC’s study of the applicable constitutional issue, as part of the JBC’s nomination process,
cannot be "tantamount to a refusal to perform its constitutionally-mandated duty." Presently,
what exists is a purely potential controversy that has not ripened into a concrete dispute where
rights have been violated or can already be asserted.
In these lights, the Court should dismiss the De Castro petition outright. Similarly, the
oppositions filed by way of intervening in and anchored on the De Castro petition should
similarly be dismissed.
b. The Peralta Petition.
John G. Peralta’s petition (G.R. 191 149) is likewise for certiorari and mandamus. Like De
Castro’s, he failed to allege that the JBC exercises judicial or quasi-judicial functions – a must in
any petition for certiorari. In fact the Peralta petition can be described as an imperfect carbon
copy of De Castro’s petition since it similarly asks for the "review of the JBC action in deferring
to transmit to the incumbent President the list of nominees for appointment of a new Chief
Justice, and to compel the JBC to send the same to the incumbent President for appointment of a
Chief Justice, when the position becomes vacant upon the mandatory retirement of the
Honorable Chief Justice Reynato S. Puno."
Peralta only differs from De Castro because it does not allege "deferment" on the basis of media
reports and judicial notice; instead, it attaches the January 18, 2010 resolution of the JBC as
Annex "A" and cites this as a basis. An examination of Annex "A," however, shows that the JBC
did not in fact resolve to defer the submission of the list of nominees; the JBC merely stated that
– "As to the time to submit this shortlist to the proper appointing authority, in light of the
Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all view on
the matter." This is not a deferment, nor is it a refusal to perform a duty assigned by law as the
duty to submit a list of nominees will not mature until a vacancy has or is about to occur.
For the same absence of a justiciable case, the Peralta petition for certiorari and mandamus and
all related interventions should be dismissed outright.
c. The PHILCONSA Petition.
The petition of The Philippine Constitutional Association (PHILCONSA, G.R. 191057) is for
mandamus under Rule 65 of the Rules of Court.
It seeks to compel the JBC to include the names of Senior Justices Antonio Carpio and Conchita
Carpio-Morales, and Prosecutor Dennis Villa Ignacio, in the list of nominees for the position of
Chief Justice although these nominees have manifested that they want their names submitted to
the incoming, not to the incumbent, President of the Philippines.
The petition also seeks various declarations by this Court, among them, that Section 15, Article
VIII should apply only to the Executive Department and not to the Judiciary; and that the
Decision of this Court in Valenzuela should be set aside and overruled.
As basis, the petition alleges that the issues raised in the petition have spawned "a frenzied
inflammatory debate on the constitutional provisions". . that has "divided the bench and the bar
and the general public as well." It likewise posits that due to the positions the nominees have
taken, a "final authoritative pronouncement" from this Court on the meaning and construction of
Sections 4(1), 8(5) and 9, Article VIII. . .in relation with Section 15, Article VII" is necessary.
The petition grounds itself, too, on the needs of public interest and public service.
On the whole, the PHILCONSA petition merely asks for a declaration from this Court of the
meaning and interpretation of the constitutional provisions on the appointment of the Chief
Justice, the Members of the Court, and the Judiciary in general during the election ban period.
As we did with the Castro petition and based on the same standards we discussed above, we hold
that the PHILCONSA petition presents no justiciable controversy that can be the basis for its
consideration as a petition for mandamus and for its adjudication on the merits. On its face, the
petition defines no specific duty that the JBC should exercise and has neglected to exercise, and
presents no right that has been violated nor any basis to assert any legal right.23 Like the De
Castro petition, it only presents to the Court a potential controversy that has not ripened.
Consequently, the Court should rule that the PHILCONSA petition should be dismissed outright
together with any intervention supporting or opposing this petition.
d. The Mendoza Petition
The Mendoza petition (A.M. 10-2-5-SC) is unique as even its docket case number will show; it is
presented as an administrative matter for the Court’s consideration pursuant to its power of
supervision over judges and over the JBC,24 following the lead taken in the Valenzuela case (an
A.M. case).
The cited Valenzuela case is rooted in a situation not far different from the present case; a
vacancy in the Court25 had occurred and a difference of opinion arose between the Executive and
the Court on the application of Section 15, Article VII, in relation with Section 4(1) and 9 of
Article VIII, of the Constitution. An exchange of letters took place between the Palace and the
Court on their respective positions. In the meanwhile, the President appointed two RTC judges
(Valenzuela and Vallarta) within the two-month period prior to the election. The Palace
forwarded the judges’ appointments to the Court, thus confronting Chief Justice Narvasa with the
question of whether – given the election ban under Section 15, Article VII that prima facie
applies – he should transmit the appointment papers to the appointed judges so they could take
their oaths in accordance with existing practice. At that point, the Court decided to treat the
matter as an "administrative matter" that was ripe for adjudication.
An administrative matter that is entered in the Court’s docket is either an administrative case
(A.C.) or an administrative matter (A.M.) submitted to the Court for its consideration and action
pursuant to its power of supervision. An A.C. case involves disciplinary and other actions over
members of the Bar, based on the Court’s supervision over them arising from the Supreme
Court’s authority to promulgate rules relating to the admission to the practice of law and to the
Integrated Bar. Closely related to A.C. cases are the Bar Matter (B.M.) cases particularly
involving admission to the practice of law.26 An A.M. is a matter based on the Supreme Court’s
power of supervision: under Section 6, Article VIII, this refers to administrative supervision over
all courts and the personnel thereof; under Section 8, it refers to supervision over the JBC.
In using an administrative matter as its medium, the Mendoza petition cites as basis the effect of
a complete election ban on judicial appointments (in view of the already high level of vacancies
and the backlog of cases) and submits this as an administrative matter that the Court, in the
exercise of its supervision over the Judiciary, should act upon. At the same time, it cites the
"public discourse and controversy" now taking place because of the application of the election
ban on the appointment of the Chief Justice, citing in this regard the very same reasons
mentioned in Valenzuela about the need to resolve the issue and avoid the recurrence of conflict
between the Executive and the Judiciary on the matter; and the need to "avoid any possible
polemics concerning the matter."27 The petition mentions as well that the Court addressed the
election ban issue in Valenzuela as an A.M. case, and apparently takes the lead from this decided
A.M. matter.
An undeniable feature of the Mendoza petition, compared to Valenzuela, is its lack of any clear
and specific point where an actual actionable case arose (the appointment of two RTC judges
during the election ban period) calling for a determination of how the Chief Justice and the Court
should act. The Mendoza petition, however, does not look up to the Court’s supervisory
authority over lower court personnel pursuant to Section 6 of Article VIII of the Constitution, in
the way the Court did in Valenzuela. Expressly, the Mendoza petition looks up to the Court’s
supervisory authority over the JBC, an authority that the Court in fact asserted in Valenzuela
when, in the exercise of "its power of supervision over the Judicial and Bar Council," it
"INSTRUCTED" the JBC "to defer all actions on the matter of nominations to fill up the lone
vacancy in the Supreme Court or any other vacancy until further orders."
From the time of Valenzuela up to the present, the governing law and the relationships between
the Court and the JBC have not changed; the supervisory relationship still exists full strength.
The JBC is now in fact waiting for the Court’s action on how it regards the Valenzuela ruling –
whether the Court will reiterate, modify or completely abandon it. The JBC expressly admitted
its dilemna in its Comment when it said: "Since the Honorable Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these consolidated Petitions and
Administrative Matter." Under these plain terms, the JBC recognizes that a controversy exists on
the issue of submitting a shortlist to the President and it will not act except with guidance from
this Court. This is a point no less critical, from the point of view of supervision, than the
appointment of the two judges during the election ban period in Valenzuela.
That the JBC has taken this stance is not surprising given the two petitions for prohibition filed
by Jaime N. Soriano (G.R. No. 191032) and Atty. Amador Z. Tolentino, Jr., (G.R. No. 191342)
that, on their face, show a cause of action ripe for adjudication.
d.1 The Soriano and Tolentino Petitions
Soriano seeks to bar the JBC from continuing the selection processes on the ground that the
Supreme Court, not the President, appoints the Chief Justice. Tolentino, on the other hand, seeks
the issuance of a writ of prohibition under Rule 65 of the 1997 Rules of Court, among others, to
enjoin and restrain the JBC from submitting a list of nominees for judiciary positions to the
incumbent President, on the ground that an existing election ban against appointments is in place
under Section 15, Article VII of the Constitution.
In the simplest terms, the JBC – by its own admission in its Comment and by Soriano’s28 and
Tolentino’s29 own admissions in their petitions – is now in the process of preparing its
submission of nominees for the vacancy to be created by the retirement of the incumbent Chief
Justice, and has already completed the initial phases of this preparation. Soriano and Tolentino
want to stop this process and compel the JBC to immediately discontinue its activities,
apparently on the theory that nomination is part of the appointment process
While their cited grounds and the intrinsic merits of these grounds vary, the Soriano and
Tolentino petitions, on their faces, present actual justiciable controversies that are ripe for
adjudication. Section 15, Article VII of the Constitution embodies a ban against appointments by
the incumbent President two months before the election up to the end of her term. A ruling from
this Court (Valenzuela) is likewise in place confirming the validity of this ban against the
Judiciary, or at least against the appointment of lower court judges. A vacancy in the position of
Chief Justice will occur on May 17, 2010, within the period of the ban, and the JBC is admittedly
preparing the submission of its list of nominees for the position of Chief Justice to the President.
Under the terms of Section 15, Article VII and the obtaining facts, a prima facie case exists
supporting the petition for violation of the election ban.
d.2. Supervision over the JBC.
That the JBC – now under a different membership – needs guidance on the course of action it
should take on the constitutional issues posed, can best be understood when the realities behind
the constitutional provisions are examined.
A first reality is that the JBC cannot, on its own due to lack of the proper authority, determine
the appropriate course of action to take under the Constitution. Its principal function is to
recommend appointees to the Judiciary and it has no authority to interpret constitutional
provisions, even those affecting its principal function; the authority to undertake constitutional
interpretation belongs to the courts alone.
A second reality is that the disputed constitutional provisions do not stand alone and cannot be
read independently of one another; the Constitution and its various provisions have to be read
and interpreted as one seamless whole,30 giving sufficient emphasis to every aspect in
accordance with the hierarchy of our constitutional values. The disputed provisions should be
read together and, as reflections of the will of the people, should be given effect to the extent that
they should be reconciled.
The third reality, closely related to the second, is that in resolving the coverage of the election
ban vis-à-vis the appointment of the Chief Justice and the Members of the Court, provisions of
the Constitution other than the disputed provisions must be taken into account. In considering
when and how to act, the JBC has to consider that:
1. The President has a term of six years which begins at noon of June 30 following the
election, which implies that the outgoing President remains President up to that time.
(Section 4, Article VII). The President assumes office at the beginning of his or her term,
with provision for the situations where the President fails to qualify or is unavailable at
the beginning of his term (Section 7, Article VII).
2. The Senators and the Congressmen begin their respective terms also at midday of
June 30 (Sections 4 and 7, Article VI). The Congress convenes on the 4th Monday of
July for its regular session, but the President may call a special session at any time.
(Section 15, Article VI)
3. The Valenzuela case cited as authority for the position that the election ban provision
applies to the whole Judiciary, only decided the issue with respect to lower court judges,
specifically, those covered by Section 9, Article VIII of the Constitution. Any reference
to the filling up of vacancies in the Supreme Court pursuant to Section 4(1), Article VIII
constitutes obiter dictum as this issue was not directly in issue and was not ruled upon.
These provisions and interpretation of the Valenzuela ruling – when read together with disputed
provisions, related with one another, and considered with the May 17, 2010 retirement of the
current Chief Justice – bring into focus certain unavoidable realities, as follows:
1. If the election ban would apply fully to the Supreme Court, the incumbent President
cannot appoint a Member of the Court beginning March 10, 2010, all the way up to June
30, 2010.
2. The retirement of the incumbent Chief Justice – May 17, 2010 – falls within the period
of the election ban. (In an extreme example where the retirement of a Member of the
Court falls on or very close to the day the election ban starts, the Office of the Solicitor
General calculates in its Comment that the whole 90 days given to the President to make
appointment would be covered by the election ban.)
3. Beginning May 17, 2010, the Chief Justice position would be vacant, giving rise to the
question of whether an Acting Chief Justice can act in his place. While this is essentially
a Supreme Court concern, the Chief Justice is the ex officio Chair of the JBC; hence it
must be concerned and be properly guided.
4. The appointment of the new Chief Justice has to be made within 90 days from the time
the vacancy occurs, which translates to a deadline of August 15, 2010.
5. The deadline for the appointment is fixed (as it is not reckoned from the date of
submission of the JBC list, as in the lower courts) which means that the JBC ideally will
have to make its list available at the start of the 90-day period so that its process will not
eat up the 90-day period granted the President.
6. After noon of June 30, 2010, the JBC representation from Congress would be vacant;
the current representatives’ mandates to act for their principals extend only to the end of
their present terms; thus, the JBC shall be operating at that point at less than its full
membership.
7. Congress will not convene until the 4th Monday of July, 2010, but would still need to
organize before the two Houses of Congress can send their representatives to the JBC – a
process may extend well into August, 2010.
8. In July 2010, one regular member of the JBC would vacate his post. Filling up this
vacancy requires a presidential appointment and the concurrence of the Commission on
Appointments.
9. Last but not the least, the prohibition in Section 15, Article VII is that "a President or
Acting President shall not make appointments." This prohibition is expressly addressed to
the President and covers the act of appointment; the prohibition is not against the JBC in
the performance of its function of "recommending appointees to the Judiciary" – an act
that is one step away from the act of making appointments.
d.3. Conclusion on the Mendoza Petition
Given the justiciable Soriano and Tolentino petitions that directly address the JBC and its
activities, the impact of the above-outlined realities on the grant of a writ of prohibition, and the
undeniable supervision that the Supreme Court exercises over the JBC as well as its role as the
interpreter of the Constitution – sufficiently compelling reason exists to recognize the Mendoza
petition as a properly filed A.M. petition that should fully be heard in these proceedings to fully
ventilate the supervisory aspect of the Court’s relationship with the JBC and to reflect, once
again, how this Court views the issues first considered in Valenzuela. The Court’s supervision
over the JBC, the latter’s need for guidance, and the existence of an actual controversy that the
Soriano and Tolentino cite, save the Mendoza petition from being one for declaratory relief,
which petition is originally cognizable by the Regional Trial Court, not by this Court.31
To summarize the preliminary considerations of locus standi and justiciability and the
outstanding issues for resolution, the main issue in these consolidated cases continues to be
whether Section 15, Article VII of the Constitution limiting the authority of the President of the
Philippines to exercise her power of appointment shall prevail over the mandate, provided under
Section 4(1) and 9, Article VIII, that appointments to the Supreme Court shall be within 90 days
from the occurrence of the vacancy, and within 90 days from the JBC’s submission of its list of
nominees for the lower courts. A sub-issue is the continued effectiveness and strength of the
Valenzuela case as guide and precedent in resolving the above issue. All these should be read in
the context of the petitions for prohibition and the Mendoza A.M. petition, as the De Castro and
the PHILCONSA petitions suffer from lack of justiciability and prematurity.
III. The Merits of the Petitions
a. The Soriano Petition.
The Soriano petition presents a very novel interpretation of Section 9, Article VIII in its position
that the authority to appoint the Chief Justice is lodged in the Court, not in the President.
The correctness of this reading of the law is contradicted by both history and by the law itself.
History tells us that, without exception, the Chief Justice of the Supreme Court has always been
appointed by the head of the Executive Department. Thus, Chief Justices Cayetano Arellano,
Victorino Mapa, Manuel Araullo, Ramon Avancena, Jose Abad Santos, Jose Yulo, Manuel
Moran and all the Chief Justices after Philippine independence were appointed by the Chief
Executive. The only difference in their respective appointments is the sovereignty under which
they were appointed.
The Chief Justices under the American regime were appointed by the President of the United
States; one Chief Justice each was appointed under the Commonwealth and under the Japanese
Military Administration; and thereafter all the Chief Justices were appointed by the Philippine
President. In every case, the appointing authority was the Chief Executive.
The use of the generic term "Members of the Supreme Court" under Section 9, Article VIII in
delineating the appointing authority under the 1987 Constitution, is not new. This was the term
used in the present line of Philippine Constitutions, from 1935 to 1987, and the inclusion of the
Chief Justice with the general term "Member of the Court" has never been in doubt.32 In fact,
Section 4(1) of the present Constitution itself confirms that the Chief Justice is a Member of the
Court when it provides that the Court "may sit en banc or, in its discretion, in divisions of three,
five, or seven Members." The Chief Justice is a Member of the En Banc and of the First Division
– in fact, he is the Chair of the En Banc and of the First Division – but even as Chair is counted
in the total membership of the En Banc or the Division for all purposes, particularly of quorum.
Thus, at the same time that Section 4(1) speaks of a "Supreme Court. . . composed of one Chief
Justice and fourteen Associate Justices," it likewise calls all of them Members in defining how
they will sit in the Court.
Thus, both by law and history, the Chief Justice has always been a Member of the Court –
although, as a primus inter pares – appointed by the President together with every other
Associate Justice. For this reason, we should dismiss the Soriano petition for lack of merit.
b. The Tolentino and Mendoza Petitions;
the OSG and JBC Comments
This is only a Separate Opinion, not a ponencia, and rather than recite or tabulate the various
positions taken in these submissions, I shall instead discuss the issues based on topically
arranged subdivisions and introduce the various positions as arguments, for or against, without
always naming the source. This is solely for ease of presentation, clarity and continuity rather
than for any devious reason.
b.1. Does a conflict of provisions textually exist?
No need exists to further recite Section 15, Article VII, on the one hand, and Sections 4(1) and 9,
Article VIII, on the other, as they are already quoted at the start of this Opinion. I do not believe
any of the parties, though, will dispute that a conflict exists even from the text of these
provisions alone.
Section 15 on its face disallows any appointment in clear negative terms (shall not make) without
specifying the appointments covered by the prohibition. From this literal reading springs the
argument that no exception is provided (except the exception found in Section 15 itself) so that
even the Judiciary is covered by the ban on appointments.
On the other hand, Section 4(1) is likewise very clear and categorical in its terms: any vacancy in
the Court shall be filled within 90 days from its occurrence. In the way of Section 15, Section
4(1) is also clear and categorical and provides no exception; the appointment refers solely to the
Members of the Supreme Court and does not mention any period that would interrupt, hold or
postpone the 90-day requirement.
Section 9 may offer more flexibility in its application as the mandate for the President is to issue
appointments within 90 days from submission of the list, without specifying when the
submission should be made. From their wordings, urgency leaps up from Section 4(1) while no
such message emanates from Section 9; in the latter the JBC appears free to determine when a
submission is to be made, obligating the President to issue appointments within 90 days from the
submission of the JBC list. From this view, the appointment period under Section 9 is one that is
flexible and can move.
Thus, in terms of conflict, Sections 4(1) and Sections 15 can be said to be directly in conflict
with each other, while a conflict is much less evident from a comparison of Sections 9 and 15.
This conclusion answers the verba legis argument of the Peralta petition that when the words or
terms of a statute or provision is clear and unambiguous, then no interpretation is necessary as
the words or terms shall be understood in their ordinary meaning. In this case, the individual
provisions, in themselves, are clear; the conflict surfaces when they operate in tandem or against
one another.
b.2. The Valenzuela Ruling.
The Valenzuela decision gives the full flavor of how the election ban issue arose because of
Chief Justice Narvasa’s very candid treatment of the facts and the issue. Valenzuela openly
stated that at the root of the dispute was the then existing vacancy in the Court and the difference
of opinion on the matter between the Executive and the Court on the application of Section 15,
Article VII, in relation with Section 4(1) and 9 of Article VIII, of the Constitution.
What appears very clear from the decision, however, is that the factual situation the Court ruled
upon, in the exercise of its supervision of court personnel, was the appointment by the President
of two RTC judges during the period of the ban. It is clear from the decision, too, that no
immediate appointment was ever made to the Court for the replacement of retired Justice
Ricardo Francisco as the JBC failed to meet on the required nominations prior to the onset of the
election ban.
From this perspective, it appears clear to me that Valenzuela should be read and appreciated for
what it is – a ruling made on the basis of the Court’s supervision over judicial personnel that
upholds the election ban as against the appointment of lower court judges appointed pursuant to
the period provided by Section 9 of Article VIII. Thus, Valenzuela’s application to the filling up
of a vacancy in the Supreme Court is a mere obiter dictum as the Court is largely governed by
Section 4(1) with respect to the period of appointment. The Section 4(1) period, of course and as
already mentioned above, has impact uniquely its own and different from that created by the
period provided for the lower court under Section 9.
I find it interesting that Peralta largely justifies his position that the JBC should now be
prohibited from proceeding with the nomination process based on Valenzuela as the prevailing
rule that should be followed under the principle of stare decisis. Peralta apparently
misappreciates the reach and real holding of Valenzuela, as explained and clarified above. A
ruling involving the appointment of lower court judges under Section 9, Article VIII cannot
simply be bodily lifted and applied in toto to the appointment of Members of the Supreme Court
under Section 4(1) of the same Article.
Because of his misappreciation, Peralta is likewise mistaken in his appeal to the principle of stare
decisis. The stability of judgments is indeed a glue that Judiciary and the litigating public cannot
do without if we are to have a working and stable justice system. Because of this role, the
principle is one that binds all courts, including this Court, and the litigating public. The principle,
however, is not open-ended and contains its own self-limitations; it applies only to actions in all
future similar cases and to none other. Where ample room for distinction exists, as in this case,
then stare decisis does not apply.
Another aspect of stare decisis that must be appreciated is that Supreme Court rulings are not
written in stone so that they will remain unerased and applicable for all times. The Supreme
Court’s review of rulings and their binding effects is a continuing one so that a ruling in one era
may be declared by the Court at some future time to be no longer true and should thus be
abandoned and changed. The best and most unforgettable example of this kind of change
happened in the United States when the US Supreme Court overturned the ruling in Plessy v.
Fergusson33 that upheld the constitutionality of racial segregation under the "separate but equal"
doctrine. After half a century, the US Court completely abandoned this ruling in the now famous
Brown v. Board of Education when it ruled that separate but equal is inherently unequal in the
context of public education.34 I mention this, if only as a reminder to one and all, that the terms
of the Valenzuela ruling, if truly applicable even to appointments to this Court, is not written in
stone and remains open for review by this Court.
Valenzuela rests on the reasoning that the evil that Section 15 seeks to remedy – vote buying,
midnight appointments and partisan reasons to influence the results of the election – is so
pervasive so that the Section 15 ban should prevail over everything else. The Court, however,
forgot in some statements in this case that hand in hand with Section 15 is Section 4(1) where the
framers also recognized, in clear and absolute terms, that a vacancy in the Court should be filled
up because of the importance of having a Supreme Court with its full and complete membership.
Completeness has a heightened meaning when the missing Member is the head of the Judiciary
and the Court in the person of the Chief Justice.
The separate realities that Section 15, Article VII and Section 4(1) bring to the fore now confront
us with the question of prioritizing our constitutional values in terms of two provisions that
effectively operate in their separate spheres, but which conflict when they directly confront one
another. The direct question is: should we really implement Section 15 above everything else,
even at the expense of having an incomplete Supreme Court, or should we recognize that both
provisions should be allowed to operate within their own separate spheres with one provision
being an exception to the other, instead of saying that one provision should absolutely prevail
over the other?
What Valenzuela failed to consider, because it was looking at the disputed provisions from the
prism of two RTC judges, is that the reasons for the application of Section 15, Article VII may
not at all exist in appointments to the Supreme Court.
In the first place, Section 4(1) covers only the appointment of 15 Members, not in their totality,
but singly and individually as Members disappear from the Court and are replaced. Thus, the evil
that the Aytona case35 sought to remove – mass midnight appointments – will not be present.
Secondly, partisanship is hardly a reason that would apply to the Supreme Court except when the
Members of the Court individually act in violation of their oaths or directly transgress our graft
and corruption laws. Let it be remembered that the Constitution itself has entrusted to the Court
the final and definitive recourse in election contest involving the President, the Vice-President
and Members of Congress. Because of this reposed trust on the Supreme Court as a body,
reasons of partisanship can hardly be a reason to systemically place the whole Supreme Court
under a ban on appointments during the election period.
Of course, partisanship is an objection that can apply to individual Members of the Court and
even to the applicants for the position of Chief Justice. But this is a different question that should
not result in placing the system of appointments to the Court within the coverage of the election
ban; objections personal to individual Members and to individual applicants are matters
addressed to the JBC and to the final appointing authority – the President. It is for reasons of
these possible individual objections that the JBC and even the Office of the President are open to
comments and objections.
Incidentally, the incumbent President is not up for re-election by operation of the Constitution so
that a partisanship objection in the President’s favor has no basis. If any, an objection personal to
the Supreme Court applicant may be raised because of perceived bias or partisanship in favor of
the President’s choice in the elections. This would be a meaningless objection, however, if it is
considered that the same objection can be raised against a Supreme Court nominee appointed by
the incoming President; this new appointee will sit in judgment in the electoral dispute that
follows the presidential elections and can be chosen for bias towards the new President and his
party. In this sense, an objection on the basis of personal bias is not at all an appropriate
consideration when the issue is systemic in its application – the application of the election ban on
appointments to Supreme Court appointments.
In any case, the comments made on this point in the petitions are conjectural and speculative and
can hardly be the bases for adjudication on the merits. If records of the Court will matter, the
duly proven facts on record about the immediately past Chief Justices speak for themselves with
respect to partisanship in favor of the sitting President. It is a matter of public record that Chief
Justices Davide, Panganiban and Puno did not try to please their respective incumbent
Presidents, and instead ruled in the way that the law, jurisprudence and the requirements of
public interests dictated.
The Mendoza petition presents some very compelling reasons why the Supreme Court, if not the
whole Judiciary, should be exempt from the coverage of the election ban that Section 15, Article
VII imposes.
The Chief Justice is the head of the Judiciary in the same manner that the President is the Chief
Executive and the Senate President and the Speaker of the House head the two Houses of
Congress. The Constitution ensures, through clear and precise provisions, that continuity will
prevail in every branch by defining how replacement and turnover of power shall take place.
Thus, after every election to be held in May, a turn over of power is mandated on the following
30th of June for all elective officials.
For the Supreme Court where continuity is by the appointment of a replacement, the Constitution
requires that the replacement Member of the Court, including the Chief Justice, should be
appointed within 90 days from the occurrence of the vacancy. This is the sense of urgency that
the Constitution imparts and is far different from the appointment of the justices and judges of
the lower courts where the requirement is 90 days from the JBC’s submission of its list. This
constitutional arrangement is what the application of Section 15, Article VII to the appointment
of Members of the Supreme Court will displace.
The Peralta petition argues that the appointment of a Chief Justice is not all that important
because the law anyway provides for an Acting Chief Justice. While this is arguably true, Peralta
misunderstands the true worth of a duly appointed Chief Justice. He forgets, too, that a Supreme
Court without a Chief Justice in place is not a whole Supreme Court; it will be a Court with only
14 members who would act and vote on all critical matters before it.
The importance of the presence of one Member of the Court can and should never be
underestimated, particularly on issues that may gravely affect the nation. Many a case has been
won or lost on the basis of one vote. On an issue of the constitutionality of a law, treaty or
statute, a tie vote – which is possible in a 14 member court – means that the constitutionality is
upheld. This was our lesson in Isagani Cruz v. DENR Secretary.36
More than the vote, Court deliberation is the core of the decision-making process and one voice
is less is not only a vote less but a contributed opinion, an observation, or a cautionary word less
for the Court. One voice can be a big difference if the missing voice is that of the Chief Justice.
Without meaning to demean the capability of an Acting Chief Justice, the ascendancy in the
Court of a permanent sitting Chief Justice cannot be equaled. He is the first among equals – a
primus inter pares – who sets the tone for the Court and the Judiciary, and who is looked up to on
all matters, whether administrative or judicial. To the world outside the Judiciary, he is the
personification of the Court and the whole Judiciary. And this is not surprising since, as Chief
Justice, he not only chairs the Court en banc, but chairs as well the Presidential Electoral
Tribunal that sits in judgment over election disputes affecting the President and the Vice-
President. Outside of his immediate Court duties, he sits as Chair of the Judicial and Bar
Council, the Philippine Judicial Academy and, by constitutional command, presides over the
impeachment of the President.37 To be sure, the Acting Chief Justice may be the ablest, but he is
not the Chief Justice without the mantle and permanent title of the Office, and even his presence
as Acting Chief Justice leaves the Court with one member less. Sadly, this member is the Chief
Justice; even with an Acting Chief Justice, the Judiciary and the Court remain headless.
The intent of the framers of the Constitution to extend to the Court a fixed period that will assure
the nation that the Court’s membership shall immediately be filled, is evidenced no less than by
the Constitutional Commission’s own deliberations where the following exchange took place:
Mr. De Castro: I understand that our justices now in the Supreme Court, together with the
Chief Justice, are only 11.
Mr. ConcepcionL Yes.
Mr. De Castro: And the second sentence of this subsection reads: Any vacancy shall be
filled within ninety days from the occurrence thereof."
Mr. Concepcion: That is right.
Mr. De Castro: Is this a now a mandate to the executive to fill the vacancy.
Mr. Concepcion: That is right. That is borne out of the fact that in the past 30 years,
seldom has the Court had a complete complement.
This exchange, to my mind, removes any remaining doubt about the framers’ recognition of the
need to always have a full Court.
b.3. Construction of the Disputed Provisions
A notable aspect of the Valenzuela ruling in the context of constitutional interpretation, is its
conclusion that in a conflict between two provisions – one in the Article on the Executive
Department and the other an Article in the Judicial Department – one of them should completely
give way and the other should prevail. This is a very unusual approach in interpretation,
particularly if the apparently conflicting provisions are from the Constitution – an instrument that
has painstakingly been deliberated upon by the best and the brightest minds in the country. For,
the rule in constitutional interpretation is that the constitution must be appreciated and
interpreted as one single instrument, with apparently conflicting provisions reconciled and
harmonized in a manner that will give all of them full force and effect.38
Where, as in Valenzuela, the Chief Justice of the Supreme Court, no less, appeared to have given
up the benefit of an immediate appointment of Members of the Supreme Court, then extremely
compelling reasons must have driven the Court to its conclusion. I fully understood though the
former Chief Justice’s conclusion in this case when I realized that he was not effectively ruling
on Section 4(1) of Article VIII, and was in fact ruling on a case involving lower court judges.
For indeed, the reasons the former Chief Justice cited in Valenzuela justify the application of the
Section 15, Article VII as against the rule on appointment of lower court judges under Section 9,
Article VIII. As I have shown above, Section 9 does not impose a hard and fast rule on the
period to be observed, apparently because the urgency of the appointment may not be as great as
in the appointment of Members of the Supreme Court. The period for appointment can move at
the discretion of the JBC, although the exercise of this discretion also carries its own butt-in and
implicit limits.
The former Chief Justice’s reason weightier reason arose from the Aytona where mass
appointments were recognized as an evil that could affect the integrity of our elections. Because
of the number of appointments that may currently be involved if appointments to lower courts
are allowed before the May 2010 election (around 537 vacancies at a 24.5% vacancy rate at the
first and second level courts according to the figures of the Mendoza petition)39 and the power
and influence judges may exert over their local communities, an exemption from the election ban
may indeed bring about (or at least give the appearance of bringing about) the evils that the
framers of the Constitution and this Court itself sought to remedy under Section 15, Article VII
and the Aytona decision, respectively.
For this reason, I do not disagree with Valenzuela for its ruling on lower court judges; Section
15, Article VII may indeed prevail over Section 9, Article VIII.
In contrast with this conclusion, an interpretation that Section 15, Article VII will similarly
prevail over Section 4(1), Article VIII is clearly misplaced. The structure, arrangement and intent
of the Constitution and the public policy reasons behind them simply speak against the
interpretation that appointments of Members of the Court should be subject to the election ban.
These are all discussed above and need not be repeated here.
Principles of constitutional interpretation, too, militate against an interpretation that would give
primacy to one branch of government over another in the absence of very compelling reasons.
Each branch of government is in place for a particular reason and each one should be given every
opportunity to operate to its fullest capacity and potential, again unless very compelling reasons
exist for the primacy of one over the other. No such compelling reason so far exists or has been
cited.
Based on the values that the disputed provisions embody, what we need to balance are the
integrity of our electoral process and the protection needed to achieve this goal, as against the
Judiciary’s need for independence and strength enforced through a Supreme Court that is at its
full strength. To be sure, the nation and our democracy need one as well as the other, for
ultimately both contribute to our overall national strength, resiliency, and stability. Thus, we
must, to the extent possible, give force and effect to both and avoid sacrificing one for the other.
To do this and to achieve the policy of insulating our constitutional process from the evils of
vote-buying, influence peddling and other practices that affect the integrity of our elections,
while at the same time recognizing the Judiciary’s and the nation’s need to have a full Supreme
Court immediately after a vacancy occurs, Section 4(1) of Article VIII should be recognized as a
narrow exception granted to the Judiciary in recognition of its proven needs. This is a narrow
exception as the election ban of Section 15, Article VII, shall apply with full force and effect on
the appointment of lower court justices and judges.
c. Guidelines for the Judicial and Bar Council
The resolution of the present dispute can only be complete if clear guidelines are given to the
JBC on how it shall conduct itself under the present circumstances pursuant to this Court’s
ruling. The Court should therefore direct the JBC to:
A. forthwith proceed with its normal processes for the submission of the list of nominees
for the vacancy to be created by the retirement of Chief Justice Reynato S. Puno, to be
submitted to the President on or before the day before the retirement of the Chief Justice;
B. in the course of preparing its list of nominees, determine with certainty the nominees’
readiness to accept the nomination as well as the appointment they may receive from the
President, deleting from the list the nominees who will refuse to confirm their full
readiness to accept without conditions either their nomination or their appointment, if
they will be appointed;
C. proceed with its normal processes for the preparation of the lists for the vacancies for
the lower courts, to be submitted to the Office of the President as soon as the election ban
on appointments is lifted; and
D. in all other matters not otherwise falling under the above, conduct itself in accordance
with this Decision.
In light of all the foregoing, I vote to:
1. Dismiss the De Castro and Peralta petitions and for not being justiciability and for
prematurity.
2. Dismiss the Soriano and the Tolentino petitions for lack of merit.
3. Dismiss all petitions and motions for interventions supporting or opposing the above
petitions.
4. Grant the Mendoza petition and declare for the JBC’s guidance that:
a. Section 4(1), Article VIII is an exception to the coverage of Section 15, Article
VII; appointments to the Supreme Court are not subject to the election ban under
Section 15, Article VII so that the JBC can submit its list of nominees for the
expected vacancy for the retirement of Chief Justice Reynato S. Puno, on or
before the vacancy occurs, for the President’s consideration and action pursuant to
Section 4(1), Article VIII ;
b. Reiterate our ruling in In re: Valenzuela and Vallarta that no other

appointments of judges of the lower courts can be made within the election ban
period, pursuant to Section 15, Article VII.
ARTURO D. BRION
Associate Justice
Footnotes
1
Roque v. Commission on Elections, G.R. No. 188456, September 10, 2009; Garcillano
v. House of Representatives, G.R. No. 170388, December 23, 2008; David v. Macapagal-
Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489, 171424, May 3,
2006, 489 SCRA 160, 224; Agan Jr. v. Philippine International Air Terminals Co., Inc.,
450 Phil 744. 803-804 (2003); Bayan v. Executive Secretary Zamora, 396 Phil 623, 548-
650 (2000); Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375, May 5, 1994,
232 SCRA 110, 138; Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrariam Reform, G.R. Nos. 78742, 79310, 79744, 79777, July 14, 1989,
175 SCRA 343 365; and Araneta v. Dinglasan, 84 Phil 368, 373 (1949).
2
Section 1, par. 2, Article VIII, CONSTITUTION.
3
See: Guingona, Jr., v. Court of Appeals, 354 Phil. 426 (1998); see also: Director of
Prisons v. Ang Cho Kio, 33 Phil. 494 (1970).
4
Id.
5
Salonga v. Ernani Cruz Pano, et al., 219 Phil. 402, 429-430 (1985).
6
See for example, In Re: List of Judges who failed to comply with Administrative
Circular No. 10-94, dated June 29, 1994, 439 Phil. 118 (2002).
7
CONSTITUTION, Article VIII, Section, 6.
8
Id., Article VIII, Section 5(5).
9
De Castro petition, p. 5.
10
RULES OF COURT, Rule 65, Section 1.
11
12
De Castro petition, par. 8, page 5.
13
See: Constitutional Provision on the JBC, pp. 4-5 of this opinion.
14
De Castro petition, p. 3
15
De Castro petition, p. 4
16
Judicial notice is taken of the publications cited, as well as the records on which these
publications are based.
17
JBC Announcement dated January 20, 2010, part of the record on file with the JBC and
with the Court, and published in the Phil. Daily Inquirer on January 21, 2010.
18
JBC Announcement dated 11 February, 2010, part of the record on file with the JBC
and with the Court, and published in the Phil. Daily Inquirer on Feb. 13, 2010.
19
JBC Comment, dated Feb. 25, 2010, p. 6.
20
JBC-009, October 18, 2000.
21
CONSTITUTION, Article VIII, Section 4(1).
22
See: allegation of grave abuse, De Castro petition, p.5.
23
Pursuant to Section 3, Rule 65 of the Rules of Court, a petition for mandamus must
allege the unlawful neglect to perform an act which the law specifically enjoins as
resulting from an office.
24
25
Upon the retirement of Associate Justice Ricardo J. Francisco.
26
27
Mendoza petition, pp. 5 and 6.
28
Soriano petition, p. 4.
29
Tolentino petition, p. 2
30
Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 21, 1991, 194
SCRA 317, 330.
31
Under Section 1, Rule 63 of the Rules of Court, a petition for declaratory relief is
available only before breach or violation of the deed or instrument whose terms are
sought to be clarified.
32
See: Vargas v. Rilloraza, 80 Phil. 297, 342 (1948).
33
163 U.S. 537 (1896).
34
347 U.S. 483 (1954).
35
Aytona v. Castillo, No. L-19313, January 19, 1962, 4 SCRA 1.
36
400 Phil. 940 (2000).
37
CONSTITUTION, Article XI, Section 2(6).
38
See: Marcelino v. Cruz, No. L-42428, March 14, 1983, 121 SCRA 51.
39
Mendoza petition, p. 3.
SUPREME COURT
Baguio City
EN BANC
G.R. No. 191002 April 20, 2010
ARTURO M. DE CASTRO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL -
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,

vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION

TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.;
NATIONAL UNION OF PEOPLE’S LAWYERS; MARLOU B. UBANO; INTEGRATED
BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its
Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own
personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L.
BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE;
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL
GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG
SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN
LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE
OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN
RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP)
CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE
PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN
MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA
GUEVARRA; WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN
TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by
YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP;
TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA;
MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON;
AQUILINO Q. PIMENTEL, JR.; Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY.

ROLAND B. INTING (IBP Governor-Eastern Visayas), Petitioners,
vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No.
191149, and the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for
lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and
Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy
to be created by the compulsory retirement of Chief Justice Reynato S. Puno by
May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the
position of Chief Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill other
vacancies in the Judiciary and submit to the President the short list of nominees
corresponding thereto in accordance with this decision.
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting
(G.R. No. 191342), and Philippine Bar Association (G.R. No. 191420), as well as intervenors
Integrated Bar of the Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S.
Lim; Peter Irving Corvera; Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V.
Tan, Jr.; the Women Trial Lawyers Organization of the Philippines (WTLOP); Marlou B.
Ubano; Mitchell John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.),
filed their respective motions for reconsideration. Also filing a motion for reconsideration was
Senator Aquilino Q. Pimentel, Jr., whose belated intervention was allowed.
We summarize the arguments and submissions of the various motions for reconsideration, in the
aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the issue of whether or not the
power to designate the Chief Justice belonged to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because it sought a mere
declaratory judgment and did not involve a justiciable controversy.
3. All Justices of the Court should participate in the next deliberations. The mere fact that
the Chief Justice sits as ex officio head of the JBC should not prevail over the more
compelling state interest for him to participate as a Member of the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an interpretation that
exempts judicial appointments from the express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made distinctions and has
created exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because
it limits an executive, not a judicial, power.
4. Resort to the deliberations of the Constitutional Commission is superfluous, and is

powerless to vary the terms of the clear prohibition.
5. The Court has given too much credit to the position taken by Justice Regalado.
Thereby, the Court has raised the Constitution to the level of a venerated text whose
intent can only be divined by its framers as to be outside the realm of understanding by
the sovereign people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question the
illegal composition of the JBC.
Philippine Bar Association
1. The Court’s strained interpretation of the Constitution violates the basic principle that
the Court should not formulate a rule of constitutional law broader than what is required
by the precise facts of the case.
2. Considering that Section 15, Article VII is clear and straightforward, the only duty of
the Court is to apply it. The provision expressly and clearly provides a general limitation
on the appointing power of the President in prohibiting the appointment of any person to
any position in the Government without any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against
midnight appointments.
4. The Constitution has installed two constitutional safeguards:- the prohibition against
midnight appointments, and the creation of the JBC. It is not within the authority of the
Court to prefer one over the other, for the Court’s duty is to apply the safeguards as they
are, not as the Court likes them to be.
5. The Court has erred in failing to apply the basic principles of statutory construction in
interpreting the Constitution.
6. The Court has erred in relying heavily on the title, chapter or section headings, despite
precedents on statutory construction holding that such headings carried very little weight.
7. The Constitution has provided a general rule on midnight appointments, and the only
exception is that on temporary appointments to executive positions.
8. The Court has erred in directing the JBC to resume the proceedings for the nomination
of the candidates to fill the vacancy to be created by the compulsory retirement of Chief
Justice Puno with a view to submitting the list of nominees for Chief Justice to President
Arroyo on or before May 17, 2010. The Constitution grants the Court only the power of
supervision over the JBC; hence, the Court cannot tell the JBC what to do, how to do it,
or when to do it, especially in the absence of a real and justiciable case assailing any
specific action or inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion and has indulged in
speculations.
10. The constitutional ban on appointments being already in effect, the Court’s directing
the JBC to comply with the decision constitutes a culpable violation of the Constitution
and the commission of an election offense.
11. The Court cannot reverse on the basis of a secondary authority a doctrine
unanimously formulated by the Court en banc.
12. The practice has been for the most senior Justice to act as Chief Justice whenever the
incumbent is indisposed. Thus, the appointment of the successor Chief Justice is not
urgently necessary.
13. The principal purpose for the ban on midnight appointments is to arrest any attempt to
prolong the outgoing President’s powers by means of proxies. The attempt of the
incumbent President to appoint the next Chief Justice is undeniably intended to
perpetuate her power beyond her term of office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to
appointments to the Judiciary. Hence, no cogent reason exists to warrant the reversal of
the Valenzuela pronouncement.
2. Section 16, Article VII of the Constitution provides for presidential appointments to
the Constitutional Commissions and the JBC with the consent of the Commission on
Appointments. Its phrase "other officers whose appointments are vested in him in this
Constitution" is enough proof that the limitation on the appointing power of the President
extends to appointments to the Judiciary. Thus, Section 14, Section 15, and Section 16 of
Article VII apply to all presidential appointments in the Executive and Judicial Branches
of the Government.
3. There is no evidence that the framers of the Constitution abhorred the idea of an
Acting Chief Justice in all cases.
Lim
1. There is no justiciable controversy that warrants the Court’s exercise of judicial

review.
2. The election ban under Section 15, Article VII applies to appointments to fill a
vacancy in the Court and to other appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the safeguard under Section 15
of Article VII against midnight appointments in the Judiciary.
Corvera
1. The Court’s exclusion of appointments to the Judiciary from the Constitutional ban on
midnight appointments is based on an interpretation beyond the plain and unequivocal
language of the Constitution.
2. The intent of the ban on midnight appointments is to cover appointments in both the
Executive and Judicial Departments. The application of the principle of verba legis
(ordinary meaning) would have obviated dwelling on the organization and arrangement
of the provisions of the Constitution. If there is any ambiguity in Section 15, Article VII,
the intent behind the provision, which is to prevent political partisanship in all branches
of the Government, should have controlled.
3. A plain reading is preferred to a contorted and strained interpretation based on

compartmentalization and physical arrangement, especially considering that the
Constitution must be interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation of the framers of the

Constitution should yield to the plain and unequivocal language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and
in accord with the Constitution.
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition
did not present a justiciable controversy. The issues it raised were not yet ripe for
adjudication, considering that the office of the Chief Justice was not yet vacant and that
the JBC itself has yet to decide whether or not to submit a list of nominees to the
President.
2. The collective wisdom of Valenzuela Court is more important and compelling than the
opinion of Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the
Court has violated the principle of ut magis valeat quam pereat (which mandates that the
Constitution should be interpreted as a whole, such that any conflicting provisions are to
be harmonized as to fully give effect to all). There is no conflict between the provisions;
they complement each other.
4. The form and structure of the Constitution’s titles, chapters, sections, and
draftsmanship carry little weight in statutory construction. The clear and plain language
of Section 15, Article VII precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or controversy. The clash of legal
rights and interests in the present case are merely anticipated. Even if it is anticipated
with certainty, no actual vacancy in the position of the Chief Justice has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the
Judiciary runs in conflict with long standing principles and doctrines of statutory
construction. The provision admits only one exception, temporary appointments in the
Executive Department. Thus, the Court should not distinguish, because the law itself
makes no distinction.
3. Valenzuela was erroneously reversed. The framers of the Constitution clearly intended
the ban on midnight appointments to cover the members of the Judiciary. Hence, giving
more weight to the opinion of Justice Regalado to reverse the en banc decision in
Valenzuela was unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day
mandate to fill any vacancy lasts until August 15, 2010, or a month and a half after the
end of the ban. The next President has roughly the same time of 45 days as the incumbent
President (i.e., 44 days) within which to scrutinize and study the qualifications of the next
Chief Justice. Thus, the JBC has more than enough opportunity to examine the nominees
without haste and political uncertainty.1avvphi1
5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article
VIII is suspended.
6. There is no basis to direct the JBC to submit the list of nominees on or before May 17,
2010. The directive to the JBC sanctions a culpable violation of the Constitution and
constitutes an election offense.
7. There is no pressing necessity for the appointment of a Chief Justice, because the
Court sits en banc, even when it acts as the sole judge of all contests relative to the
election, returns and qualifications of the President and Vice-President. Fourteen other
Members of the Court can validly comprise the Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees
for Chief Justice to the President on or before May 17, 2010, and to continue its
proceedings for the nomination of the candidates, because it granted a relief not prayed
for; imposed on the JBC a deadline not provided by law or the Constitution; exercised
control instead of mere supervision over the JBC; and lacked sufficient votes to reverse
Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of
statutory construction to the effect that the literal meaning of the law must be applied
when it is clear and unambiguous; and that we should not distinguish where the law does
not distinguish.
3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary
Act of 1948 already provides that the power and duties of the office devolve on the most
senior Associate Justice in case of a vacancy in the office of the Chief Justice.
Ubano
1. The language of Section 15, Article VII, being clear and unequivocal, needs no
interpretation
2. The Constitution must be construed in its entirety, not by resort to the organization and
arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the
pertinent records of the Constitutional Commission are clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of nominees to the President
by May 17, 2010 at the latest, because no specific law requires the JBC to submit the list
of nominees even before the vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the ban on midnight
appointments is the temporary appointment to an executive position. The limitation is in
keeping with the clear intent of the framers of the Constitution to place a restriction on
the power of the outgoing Chief Executive to make appointments.
2. To exempt the appointment of the next Chief Justice from the ban on midnight
appointments makes the appointee beholden to the outgoing Chief Executive, and
compromises the independence of the Chief Justice by having the outgoing President be
continually influential.
3. The Court’s reversal of Valenzuela without stating the sufficient reason violates the
principle of stare decisis.
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing
President is prohibited from making within the prescribed period. Plain textual reading
and the records of the Constitutional Commission support the view that the ban on
midnight appointments extends to judicial appointments.
2. Supervision of the JBC by the Court involves oversight. The subordinate subject to
oversight must first act not in accord with prescribed rules before the act can be redone to
conform to the prescribed rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition
did not present a justiciable controversy.
Pimentel
1. Any constitutional interpretative changes must be reasonable, rational, and

conformable to the general intent of the Constitution as a limitation to the powers of
Government and as a bastion for the protection of the rights of the people. Thus, in
harmonizing seemingly conflicting provisions of the Constitution, the interpretation
should always be one that protects the citizenry from an ever expanding grant of authority
to its representatives.
2. The decision expands the constitutional powers of the President in a manner totally
repugnant to republican constitutional democracy, and is tantamount to a judicial
amendment of the Constitution without proper authority.
Comments
The Office of the Solicitor General (OSG) and the JBC separately represent in their respective
comments, thus:
OSG
1. The JBC may be compelled to submit to the President a short list of its nominees for
the position of Chief Justice.
2. The incumbent President has the power to appoint the next Chief Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the exemption of the Judiciary from
the ban on midnight appointments.1awph!1
5. The Court has the duty to consider and resolve all issues raised by the parties as well as
other related matters.
JBC
1. The consolidated petitions should have been dismissed for prematurity, because the
JBC has not yet decided at the time the petitions were filed whether the incumbent
President has the power to appoint the new Chief Justice, and because the JBC, having
yet to interview the candidates, has not submitted a short list to the President.
2. The statement in the decision that there is a doubt on whether a JBC short list is
necessary for the President to appoint a Chief Justice should be struck down as bereft of
constitutional and legal basis. The statement undermines the independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in accord with its
constitutional mandate and its implementing rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if
the OSG and the JBC were the only ones the Court has required to do so. He states that the
motions for reconsideration were directed at the administrative matter he initiated and which the
Court resolved. His comment asserts:
1. The grounds of the motions for reconsideration were already resolved by the decision
and the separate opinion.
2. The administrative matter he brought invoked the Court’s power of supervision over
the JBC as provided by Section 8(1), Article VIII of the Constitution, as distinguished
from the Court’s adjudicatory power under Section 1, Article VIII. In the former, the
requisites for judicial review are not required, which was why Valenzuela was docketed
as an administrative matter. Considering that the JBC itself has yet to take a position on
when to submit the short list to the proper appointing authority, it has effectively solicited
the exercise by the Court of its power of supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend
the Constitution.
4. The portions of the deliberations of the Constitutional Commission quoted in the
dissent of Justice Carpio Morales, as well as in some of the motions for reconsideration
do not refer to either Section 15, Article VII or Section 4(1), Article VIII, but to Section
13, Article VII (on nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the matters being thereby
raised and argued, not being new, have all been resolved by the decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and
emphasis.
First: Most of the movants contend that the principle of stare decisis is controlling, and
accordingly insist that the Court has erred in disobeying or abandoning Valenzuela.1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to
adhere to precedent and not to unsettle things that are settled. It simply means that a principle
underlying the decision in one case is deemed of imperative authority, controlling the decisions
of like cases in the same court and in lower courts within the same jurisdiction, unless and until
the decision in question is reversed or overruled by a court of competent authority. The decisions
relied upon as precedents are commonly those of appellate courts, because the decisions of the
trial courts may be appealed to higher courts and for that reason are probably not the best
evidence of the rules of law laid down. 2
Judicial decisions assume the same authority as a statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are applicable, the criteria that must
control the actuations, not only of those called upon to abide by them, but also of those duty-
bound to enforce obedience to them.3 In a hierarchical judicial system like ours, the decisions of
the higher courts bind the lower courts, but the courts of co-ordinate authority do not bind each
other. The one highest court does not bind itself, being invested with the innate authority to rule
according to its best lights.4
The Court, as the highest court of the land, may be guided but is not controlled by precedent.
Thus, the Court, especially with a new membership, is not obliged to follow blindly a particular
decision that it determines, after re-examination, to call for a rectification.5 The adherence to
precedents is strict and rigid in a common-law setting like the United Kingdom, where judges
make law as binding as an Act of Parliament.6 But ours is not a common-law system; hence,
judicial precedents are not always strictly and rigidly followed. A judicial pronouncement in an
earlier decision may be followed as a precedent in a subsequent case only when its reasoning and
justification are relevant, and the court in the latter case accepts such reasoning and justification
to be applicable to the case. The application of the precedent is for the sake of convenience and
stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or
reversed, and that its wisdom should guide, if not control, the Court in this case is, therefore,
devoid of rationality and foundation. They seem to conveniently forget that the Constitution
itself recognizes the innate authority of the Court en banc to modify or reverse a doctrine or
principle of law laid down in any decision rendered en banc or in division.7
Second: Some intervenors are grossly misleading the public by their insistence that the
Constitutional Commission extended to the Judiciary the ban on presidential appointments
during the period stated in Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from the records of the
Constitutional Commission did not concern either Section 15, Article VII or Section 4(1), Article
VIII, but only Section 13, Article VII, a provision on nepotism. The records of the Constitutional
Commission show that Commissioner Hilario G. Davide, Jr. had proposed to include judges and
justices related to the President within the fourth civil degree of consanguinity or affinity among
the persons whom the President might not appoint during his or her tenure. In the end, however,
Commissioner Davide, Jr. withdrew the proposal to include the Judiciary in Section 13, Article
VII "(t)o avoid any further complication,"8 such that the final version of the second paragraph of
Section 13, Article VII even completely omits any reference to the Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not during his tenure be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or
heads of bureaus or offices, including government-owned or controlled corporations and their
subsidiaries.
Last: The movants take the majority to task for holding that Section 15, Article VII does not
apply to appointments in the Judiciary. They aver that the Court either ignored or refused to
apply many principles of statutory construction.
The movants gravely err in their posture, and are themselves apparently contravening their
avowed reliance on the principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of the express
extension of the ban on appointments to the Judiciary, insist that the ban applied to the Judiciary
under the principle of verba legis. That is self-contradiction at its worst.
Another instance is the movants’ unhesitating willingness to read into Section 4(1) and Section
9, both of Article VIII, the express applicability of the ban under Section 15, Article VII during
the period provided therein, despite the silence of said provisions thereon. Yet, construction
cannot supply the omission, for doing so would generally constitute an encroachment upon the
field of the Constitutional Commission. Rather, Section 4(1) and Section 9 should be left as they
are, given that their meaning is clear and explicit, and no words can be interpolated in them.9
Interpolation of words is unnecessary, because the law is more than likely to fail to express the
legislative intent with the interpolation. In other words, the addition of new words may alter the
thought intended to be conveyed. And, even where the meaning of the law is clear and sensible,
either with or without the omitted word or words, interpolation is improper, because the primary
source of the legislative intent is in the language of the law itself.10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They could
not have ignored the meticulous ordering of the provisions. They would have easily and surely
written the prohibition made explicit in Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition against the
President or Acting President making appointments within two months before the next
presidential elections and up to the end of the President’s or Acting President’s term does not
refer to the Members of the Supreme Court.
We cannot permit the meaning of the Constitution to be stretched to any unintended point in
order to suit the purposes of any quarter.
Final Word
It has been insinuated as part of the polemics attendant to the controversy we are resolving that
because all the Members of the present Court were appointed by the incumbent President, a
majority of them are now granting to her the authority to appoint the successor of the retiring
Chief Justice.
The insinuation is misguided and utterly unfair.
The Members of the Court vote on the sole basis of their conscience and the merits of the issues.
Any claim to the contrary proceeds from malice and condescension. Neither the outgoing
President nor the present Members of the Court had arranged the current situation to happen and
to evolve as it has. None of the Members of the Court could have prevented the Members
composing the Court when she assumed the Presidency about a decade ago from retiring during
her prolonged term and tenure, for their retirements were mandatory. Yet, she is now left with an
imperative duty under the Constitution to fill up the vacancies created by such inexorable
retirements within 90 days from their occurrence. Her official duty she must comply with. So
must we ours who are tasked by the Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with finality.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice


ANTONIO EDUARDO B. TERESITA J. LEONARDO-DE

NACHURA CASTRO



JOSE CATRAL MENDOZA

Associate Justice
CERTIFICATION
in the above Resolution had been reached in consultation before the case was assigned to the
writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Footnotes
1
In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of
Branch 24, Cabanatuan City, respectively, A.M. No. 98-5-01-SC, November 9, 1998, 298
SCRA 408.
2
Price & Bitner, Effective Legal Research, Little, Brown & Co., New York (1962), § 9.7.
3
Caltex (Phil.), Inc. v. Palomar, No. L-19650, September 29, 1966, 18 SCRA 247
4
E.g., Dias, Jurisprudence, Butterworths, London, 1985, Fifth Edition, p. 127.
5
Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No. 118509, September 5, 1996,
261 SCRA 464.
6
See Calabresi, A Common Law for the Age of Statutes, Harvard University Press, p. 4
(1982) and endnote 12 of the page, which essentially recounts that the strict application
of the doctrine of stare decisis is true only in a common-law jurisdiction like England
(citing Wise, The Doctrine of Stare Decisis, 21 Wayne Law Review, 1043, 1046-1047
(1975). Calabresi recalls that the English House of Lords decided in 1898 (London
Tramways Co. v. London County Council, A.C. 375) that they could not alter precedents
laid down by the House of Lords acting as the supreme court in previous cases, but that
such precedents could only be altered by an Act of Parliament, for to do otherwise would
mean that the courts would usurp legislative function; he mentions that in 1966, Lord
Chancellor Gardiner announced in a Practice Statement a kind of general memorandum
from the court that while: "Their Lordships regard the use of precedent as an
indispensable foundation upon which to decide what is the law," they "nevertheless
recognize that too rigid adherence to precedent may lead to injustice in a particular case
and also unduly restrict the proper development of the law. They propose, therefore, to
modify their present practice and, while treating former decisions of this House as
normally binding, to depart from a previous decision when it appears right to do so."
(Calabresi cites Leach, Revisionism in the House of Lords: The Bastion of Rigid Stare
Decisis Falls, 80 Harvard Law Review, 797 (1967).
7
Section 4 (2), Article VIII, provides:
xxx
(3) Cases or matters heard by a division shall be decided or resolved with the
concurrence of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon, and in no case, without
the concurrence of at least three of such Members. When the required number is
not obtained, the case shall be decided en banc; Provided, that no doctrine or
principle of law laid down by the court in a decision rendered en banc or in
division may be modified or reversed except by the court sitting en banc.
8
Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC No. 44. pp.
542-543.
9
Smith v. State, 66 Md. 215, 7 Atl. 49.
10
State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.
DISSENTING OPINION
CARPIO MORALES, J.:
No compelling reason exists for the Court to deny a reconsideration of the assailed Decision. The
various motions for reconsideration raise hollering substantial arguments and legitimately
nagging questions which the Court must meet head on.
If this Court is to deserve or preserve its revered place not just in the hierarchy but also in
history, passion for reason demands the issuance of an extended and extensive resolution that
confronts the ramifications and repercussions of its assailed Decision. Only then can it offer an
illumination that any self-respecting student of the law clamors and any adherent of the law
deserves. Otherwise, it takes the risk of reeking of an objectionable air of supreme judicial
arrogance.
It is thus imperative to settle the following issues and concerns:
Whether the incumbent President is constitutionally proscribed from appointing the

successor of Chief Justice Reynato S. Puno upon his retirement on May 17, 2010 until the
ban ends at 12:00 noon of June 30, 2010
1. In interpreting the subject constitutional provisions, the Decision disregarded

established canons of statutory construction. Without explaining the inapplicability of
each of the relevant rules, the Decision immediately placed premium on the arrangement
and ordering of provisions, one of the weakest tools of construction, to arrive at its
conclusion.
2. In reversing Valenzuela, the Decision held that the Valenzuela dictum did not firmly
rest on ConCom deliberations, yet it did not offer to cite a material ConCom deliberation.
It instead opted to rely on the memory of Justice Florenz Regalado which incidentally
mentioned only the "Court of Appeals." The Decision’s conclusion must rest on the
strength of its own favorable Concom deliberation, none of which to date has been cited.
3. Instead of choosing which constitutional provision carves out an exception from the
other provision, the most legally feasible interpretation (in the limited cases of temporary
physical or legal impossibility of compliance, as expounded in my Dissenting Opinion) is
to consider the appointments ban or other substantial obstacle as a temporary
impossibility which excuses or releases the constitutional obligation of the Office of the
President for the duration of the ban or obstacle.
In view of the temporary nature of the circumstance causing the impossibility of performance,
the outgoing President is released from non-fulfillment of the obligation to appoint, and the duty
devolves upon the new President. The delay in the fulfillment of the obligation becomes
excusable, since the law cannot exact compliance with what is impossible. The 90-day period
within which to appoint a member of the Court is thus suspended and the period could only start
or resume to run when the temporary obstacle disappears (i.e., after the period of the
appointments ban; when there is already a quorum in the JBC; or when there is already at least
three applicants).
Whether the Judicial and Bar Council is obliged to submit to the President the shortlist of
nominees for the position of Chief Justice (or Justice of this Court) on or before the
occurrence of the vacancy.
1. The ruling in the Decision that obligates the JBC to submit the shortlist to the President
on or before the occurrence of the vacancy in the Court runs counter to the Concom
deliberations which explain that the 90-day period is allotted for both the nomination by
the JBC and the appointment by the President. In the move to increase the period to 90
days, Commissioner Romulo stated that "[t]he sense of the Committee is that 60 days is
awfully short and that the [Judicial and Bar] Council, as well as the President, may have
difficulties with that."
2. To require the JBC to submit to the President a shortlist of nominees on or before the
occurrence of vacancy in the Court leads to preposterous results. It bears reiterating that
the requirement is absurd when, inter alia, the vacancy is occasioned by the death of a
member of the Court, in which case the JBC could never anticipate the death of a Justice,
and could never submit a list to the President on or before the occurrence of vacancy.
3. The express allowance in the Constitution of a 90-day period of vacancy in the

membership of the Court rebuts any public policy argument on avoiding a vacuum of
even a single day without a duly appointed Chief Justice. Moreover, as pointed out in my
Dissenting Opinion, the practice of having an acting Chief Justice in the interregnum is
provided for by law, confirmed by tradition, and settled by jurisprudence to be an internal
matter.
The Resolution of the majority, in denying the present Motions for Reconsideration, failed to
rebut the foregoing crucial matters.
I, therefore, maintain my dissent and vote to GRANT the Motions for Reconsideration of the
Decision of March 17, 2010 insofar as it holds that the incumbent President is not
constitutionally proscribed from appointing the successor of Chief Justice Reynato S. Puno upon
his retirement on May 17, 2010 until the ban ends at 12:00 noon of June 30, 2010 and that the
Judicial and Bar Council is obliged to submit to the President the shortlist of nominees for the
position of Chief Justice on or before May 17, 2010.

Associate Justice
CONCURRING AND DISSENTING OPINION
BRION, J.:
The Motions for Reconsideration
After sifting through the motions for reconsideration, I found that the arguments are largely the
same arguments that we have passed upon, in one form or another, in the various petitions.
Essentially, the issues boil down to justiciability; the conflict of constitutional provisions; the
merits of the cited constitutional deliberations; and the status and effect of the Valenzuela1
ruling. Even the motion for reconsideration of the Philippine Bar Association (G.R. No. 191420),
whose petition I did not expressly touch upon in my Separate Opinion, basically dwells on these
issues.
I have addressed most, if not all, of these issues and I submit my Separate Opinion2 as my basic
response to the motions for reconsideration, supplemented by the discussions below.
As I reflected in my Separate Opinion (which three other Justices joined),3 the election
appointment ban under Article VII, Section 15 of the Constitution should not apply to the
appointment of Members of the Supreme Court whose period for appointment is separately
provided for under Article VIII, Section 4(1). I shared this conclusion with the Court’s Decision
although our reasons differed on some points.
I diverged fully from the Decision on the question of whether we should maintain or reverse our
ruling in Valenzuela. I maintained that it is still good law; no reason exists to touch the ruling as
its main focus – the application of the election ban on the appointment of lower court judges
under Article VIII, Section 9 of the Constitution – is not even an issue in the present case and
was discussed only because the petitions incorrectly cited the ruling as authority on the issue of
the Chief Justice’s appointment. The Decision proposed to reverse Valenzuela but only secured
the support of five (5) votes, while my Separate Opinion in support of Valenzuela had four (4)
votes. Thus, on the whole, the Decision did not prevail in reversing Valenzuela, as it only had
five (5) votes in a field of 12 participating Members of the Court. Valenzuela should therefore
remain, as of the filing of this Opinion, as a valid precedent.
Acting on the present motions for reconsideration, I join the majority in denying the motions
with respect to the Chief Justice issue, although we differ in some respects on the reasons
supporting the denial. I dissent from the conclusion that the Valenzuela ruling should be
reversed. My divergence from the majority’s reasons and conclusions compels me to write this
Concurring and Dissenting Opinion.
The Basic Requisites / Justiciability

One marked difference between the Decision and my Separate Opinion is our approach on the
basic requisites/justiciability issues. The Decision apparently glossed over this aspect of the case,
while I fully explained why the De Castro4 and Peralta5 petitions should be dismissed outright. In
my view, these petitions violated the most basic requirements of their chosen medium for review
– a petition for certiorari and mandamus under Rule 65 of the Rules of Court.
The petitions commonly failed to allege that the Judicial and Bar Council (JBC) performs
judicial or quasi-judicial functions, an allegation that the petitions could not really make, since
the JBC does not really undertake these functions and, for this reason, cannot be the subject of a
petition for certiorari; hence, the petitions should be dismissed outright. They likewise failed to
facially show any failure or refusal by the JBC to undertake a constitutional duty to justify the
issuance of a writ of mandamus; they invoked judicial notice that we could not give because
there was, and is, no JBC refusal to act.6 Thus, the mandamus aspects of these petitions should
have also been dismissed outright. The ponencia, unfortunately, failed to fully discuss these legal
infirmities.
The motions for reconsideration lay major emphasis on the alleged lack of an actual case or
controversy that made the Chief Justice’s appointment a justiciable issue. They claim that the
Court cannot exercise the power of judicial review where there is no clash of legal rights and
interests or where this clash is merely anticipated, although the anticipated event shall come with
certainty.7
What the movants apparently forgot, focused as they were on their respective petitions, is that
the present case is not a single-petition case that rises or falls on the strength of that single
petition. The present case involves various petitions and interventions,8 not necessarily pulling
towards the same direction, although each one is focused on the issue of whether the election
appointment ban under Article VII, Section 15 of the Constitution should apply to the
appointment of the next Chief Justice of the Supreme Court.
Among the petitions filed were those of Tolentino (G.R. No. 191342), Soriano (G.R. No.
191032) and Mendoza (A.M. No. 10-2-5-SC). The first two are petitions for prohibition under
Section 2 of Rule 65 of the Rules of Court.9 While they commonly share this medium of review,
they differ in their supporting reasons. The Mendoza petition, on the other hand, is totally
different – it is a petition presented as an administrative matter (A.M.) in the manner that the
Valenzuela case was an A.M. case. As I pointed out in the Separate Opinion, the Court uses the
A.M. docket designation on matters relating to its exercise of supervision over all courts and
their personnel.10 I failed to note then, but I make of record now, that court rules and regulations
– the outputs in the Court’s rulemaking function – are also docketed as A.M. cases.
That an actual case or controversy involving a clash of rights and interests exists is immediately
and patently obvious in the Tolentino and Soriano petitions. At the time the petitions were filed,
the JBC had started its six-phase nomination process that would culminate in the submission of a
list of nominees to the President of the Philippines for appointive action. Tolentino and Soriano –
lawyers and citizens with interest in the strict observance of the election ban – sought to prohibit
the JBC from continuing with this process. The JBC had started to act, without any prodding
from the Court, because of its duty to start the nomination process but was hampered by the
petitions filed and the legal questions raised that only the Supreme Court can settle with
finality.11 Thus, a clash of interests based on law existed between the petitioners and the JBC. To
state the obvious, a decision in favor of Tolentino or Soriano would result in a writ of prohibition
that would direct the JBC not to proceed with the nomination process.
The Mendoza petition cited the effect of a complete election ban on judicial appointments (in
view of the already high level of vacancies and the backlog of cases) as basis, and submitted the
question as an administrative matter that the Court, in the exercise of its supervisory authority
over the Judiciary and the JBC itself, should act upon. At the same time, it cited the "public
discourse and controversy" now taking place because of the application of the election ban on the
appointment of the Chief Justice, pointing in this regard to the very same reasons mentioned in
Valenzuela about the need to resolve the issue and avoid the recurrence of conflict between the
Executive and the Judiciary, and the need to "avoid polemics concerning the matter."12
I recognized in the Separate Opinion that, unlike in Valenzuela where an outright defiance of the
election ban took place, no such obvious triggering event transpired in the Mendoza petition.13
Rather, the Mendoza petition looked to the supervisory power of the Court over judicial
personnel and over the JBC as basis to secure a resolution of the election ban issue. The JBC, at
that time, had indicated its intent to look up to the Court’s supervisory power and role as the final
interpreter of the Constitution to guide it in responding to the challenges it confronts.14 To me,
this was "a point no less critical, from the point of view of supervision, than the appointment of
the two judges during the election ban period in Valenzuela."15
In making this conclusion, I pointed out in my Separate Opinion the unavoidable surrounding
realities evident from the confluence of events, namely: (1) an election to be held on May 10,
2010; (2) the retirement of the Chief Justice on May 17, 2010; (3) the lapse of the terms of the
elective officials from the President to the congressmen on June 30, 2010; (4) the delay before
the Congress can organize and send its JBC representatives; and (5) the expiration of the term of
a non-elective JBC member in July 2010.16 All these – juxtaposed with the Court’s supervision
over the JBC, the latter’s need for guidance, and the existence of an actual controversy on the
same issues bedeviling the JBC – in my view, were sufficient to save the Mendoza petition from
being a mere request for opinion or a petition for declaratory relief that falls under the
jurisdiction of the lower court. This recognition is beyond the level of what this Court can do in
handling a moot and academic case – usually, one that no longer presents a judiciable
controversy but one that can still be ruled upon at the discretion of the court when the
constitutional issue is of paramount public interest and controlling principles are needed to guide
the bench, the bar and the public.17
To be sure, this approach in recognizing when a petition is actionable is novel. An overriding

reason for this approach can be traced to the nature of the petition, as it rests on the Court’s
supervisory authority and relates to the exercise of the Court’s administrative rather than its
judicial functions (other than these two functions, the Court also has its rulemaking function
under Article VIII, Section 5(5) of the Constitution). Strictly speaking, the Mendoza petition
calls for directions from the Court in the exercise of its power of supervision over the JBC,18 not
on the basis of the power of judicial review.19 In this sense, it does not need the actual clash of
interests of the type that a judicial adjudication requires. All that must be shown is the active
need for supervision to justify the Court’s intervention as supervising authority.
Under these circumstances, the Court’s recognition of the Mendoza petition was not an undue
stretch of its constitutional powers. If the recognition is unusual at all, it is so only because of its
novelty; to my knowledge, this is the first time ever in Philippine jurisprudence that the
supervisory authority of the Court over an attached agency has been highlighted in this manner.
Novelty, per se, however, is not a ground for objection nor a mark of infirmity for as long as the
novel move is founded in law. In this case, as in the case of the writ of amparo and habeas data
that were then novel and avowedly activist in character, sufficient legal basis exists to actively
invoke the Court’s supervisory authority – granted under the Constitution, no less – as basis for
action.
To partly quote the wording of the Constitution, Article VIII, Section 8(1) and (5) provide that
"A Judicial and Bar Council is hereby created under the supervision of the Supreme Court… It
may exercise such other functions and duties as the Supreme Court may assign to it."
Supervision, as a legal concept, more often than not, is defined in relation with the concept of
control.20 In Social Justice Society v. Atienza,21 we defined "supervision" as follows:
[Supervision] means overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform their duties. Control, on the other hand,
means the power of an officer to alter or modify or nullify or set aside what a subordinate officer
ha[s] done in the performance of his duties and to substitute the judgment of the former for that
of the latter.
Under this definition, the Court cannot dictate on the JBC the results of its assigned task, i.e.,
who to recommend or what standards to use to determine who to recommend. It cannot even
direct the JBC on how and when to do its duty, but it can, under its power of supervision, direct
the JBC to "take such action or step as prescribed by law to make them perform their duties," if
the duties are not being performed because of JBC’s fault or inaction, or because of extraneous
factors affecting performance. Note in this regard that, constitutionally, the Court can also assign
the JBC other functions and duties – a power that suggests authority beyond what is purely
supervisory.
Where the JBC itself is at a loss on how to proceed in light of disputed constitutional provisions
that require interpretation,22 the Court is not legally out of line – as the final authority on the
interpretation of the Constitution and as the entity constitutionally-tasked to supervise the JBC –
in exercising its oversight function by clarifying the interpretation of the disputed constitutional
provision to guide the JBC. In doing this, the Court is not simply rendering a general legal
advisory; it is providing concrete and specific legal guidance to the JBC in the exercise of its
supervisory authority, after the latter has asked for assistance in this regard. That the Court does
this while concretely resolving actual controversies (the Tolentino and Soriano petitions) on the
same issue immeasurably strengthens the intrinsic correctness of the Court’s action.
It may be asked: why does the Court have to recognize the Mendoza petition when it can resolve
the conflict between Article VII, Section 15 and Article VIII, Section 4(1) through the Tolentino
and Soriano petitions?
The answer is fairly simple and can be read between the lines of the above explanation on the
relationship between the Court and the JBC. First, administrative is different from judicial
function and providing guidance to the JBC can only be appropriate in the discharge of the
Court’s administrative function. Second, the resolution of the Tolentino and Soriano petitions
will lead to rulings directly related to the underlying facts of these petitions, without clear
guidelines to the JBC on the proper parameters to observe vis-à-vis the constitutional dispute
along the lines the JBC needs. In fact, concrete guidelines addressed to the JBC in the resolution
of the Tolentino/Soriano petitions may even lead to accusations that the Court’s resolution is
broader than is required by the facts of the petitions. The Mendoza petition, because it pertains
directly to the performance of the JBC’s duty and the Court’s supervisory authority, allows the
issuance of precise guidelines that will enable the JBC to fully and seasonably comply with its
constitutional mandate.
I hasten to add that the JBC’s constitutional task is not as simple as some people think it to be.
The process of preparing and submitting a list of nominees is an arduous and time-consuming
task that cannot be done overnight. It is a six-step process lined with standards requiring the JBC
to attract the best available candidates, to examine and investigate them, to exhibit transparency
in all its actions while ensuring that these actions conform to constitutional and statutory
standards (such as the election ban on appointments), to submit the required list of nominees on
time, and to ensure as well that all these acts are politically neutral. On the time element, the JBC
list for the Supreme Court has to be submitted on or before the vacancy occurs given the 90-day
deadline that the appointing President is given in making the appointment. The list will be
submitted, not to the President as an outgoing President, nor to the election winner as an
incoming President, but to the President of the Philippines whoever he or she may be. If the
incumbent President does not act on the JBC list within the time left in her term, the same list
shall be available to the new President for him to act upon. In all these, the Supreme Court bears
the burden of overseeing that the JBC’s duty is done, unerringly and with utmost dispatch; the
Court cannot undertake this supervision in a manner consistent with the Constitution’s
expectation from the JBC unless it adopts a pro-active stance within the limits of its supervisory
authority.
The Disputed Provisions
The movants present their arguments on the main issue at several levels. Some argue that the
disputed constitutional provisions – Article VII, Section 15 and Article VIII, Section 4(1) – are
clear and speak for themselves on what the Constitution covers in banning appointments during
the election period.23 One even posits that there is no conflict because both provisions can be
given effect without one detracting against the full effectiveness of the other,24 although the
effect is to deny the sitting President the option to appoint in favor of a deferment for the
incoming President’s action. Still others, repeating their original arguments, appeal to the
principles of interpretation and latin maxims to prove their point.25
In my discussions in the Separate Opinion, I stated upfront my views on how the disputed
provisions interact with each other. Read singly and in isolation, they appear clear (this reading
applies the "plain meaning rule" that Tolentino advocates in his motion for reconsideration, as
explained below). Arrayed side by side with each other and considered in relation with the other
provisions of the Constitution, particularly its structure and underlying intents, the conflict
however becomes obvious and unavoidable.
Section 15 on its face disallows any appointment in clear negative terms ("shall not make")
without specifying the appointments covered by the prohibition.26 From this literal and isolated
reading springs the argument that no exception is provided (except that found in Section 15
itself) so that even the Judiciary is covered by the ban on appointments.
On the other hand, Section 4(1) is likewise very clear and categorical in its terms: any vacancy in
the Court shall be filled within 90 days from its occurrence.27 In the way of Section 15, Section
4(1) is also clear and categorical and provides no exception; the appointment refers solely to the
Members of the Supreme Court and does not mention any period that would interrupt, hold or
postpone the 90-day requirement.
From this perspective, the view that no conflict exists cannot be seriously made, unless with the
mindset that one provision controls and the other should yield. Many of the petitions in fact
advocate this kind of reading, some of them openly stating that the power of appointment should
be reserved for the incoming President.28 The question, however, is whether – from the
viewpoint of strict law and devoid of the emotionalism and political partisanship that permeate
the present Philippine political environment – this kind of mindset can really be adopted in
reading and applying the Constitution.
In my view, this kind of mindset and the conclusion it inevitably leads to cannot be adopted; the
provisions of the Constitution cannot be read in isolation from what the whole contains. To be
exact, the Constitution must be read and understood as a whole, reconciling and harmonizing
apparently conflicting provisions so that all of them can be given full force and effect,29 unless
the Constitution itself expressly states otherwise.30
Not to be forgotten in reading and understanding the Constitution are the many established
underlying constitutional principles that we have to observe and respect if we are to be true to the
Constitution. These principles – among them the principles of checks and balances and
separation of powers – are not always expressly stated in the Constitution, but no one who
believes in and who has studied the Constitution can deny that they are there and deserve utmost
attention, respect, and even priority consideration.
In establishing the structures of government, the ideal that the Constitution seeks to achieve is
one of balance among the three great departments of government – the Executive, the Legislative
and the Judiciary, with each department undertaking its constitutionally-assigned task as a check
against the exercise of power by the others, while all three departments move forward in working
for the progress of the nation. Thus, the Legislature makes the laws and is supreme in this regard,
in the way that the Executive is supreme in enforcing and administering the law, while the
Judiciary interprets both the Constitution and the law. Any provision in each of the Articles on
these three departments31 that intrudes into the other must be closely examined if the provision
affects and upsets the desired balance.
Under the division of powers, the President as Chief Executive is given the prerogative of
making appointments, subject only to the legal qualification standards, to the checks provided by
the Legislature’s Commission on Appointments (when applicable) and by the JBC for
appointments in the Judiciary, and to the Constitution’s own limitations. Conflict comes in when
the Constitution laid down Article VII, Section 15 limiting the President’s appointing power
during the election period. This limitation of power would have been all-encompassing and
would, thus, have extended to all government positions the President can fill, had the
Constitution not inserted a provision, also on appointments, in the Article on the Judiciary with
respect to appointments to the Supreme Court. This conflict gives rise to the questions: which
provision should prevail, or should both be given effect? Or should both provisions yield to a
higher concern – the need to maintain the integrity of our elections?
A holistic reading of the Constitution – a must in constitutional interpretation – dictates as a

general rule that the tasks assigned to each department and their limitations should be given full
effect to fulfill the constitutional purposes under the check and balance principle, unless the
Constitution itself expressly indicates its preference for one task, concern or standard over the
others,32 or unless this Court, in its role as interpreter of the Constitution, has spoken on the
appropriate interpretation that should be made.33
In considering the interests of the Executive and the Judiciary, a holistic approach starts from the
premise that the constitutional scheme is to grant the President the power of appointment, subject
to the limitation provided under Article VII, Section 15. At the same time, the Judiciary is
assured, without qualifications under Article VIII, Section 4(1), of the immediate appointment of
Members of the Supreme Court, i.e., within 90 days from the occurrence of the vacancy. If both
provisions would be allowed to take effect, as I believe they should, the limitation on the
appointment power of the President under Article VII, Section 15 should itself be limited by the
appointment of Members of the Court pursuant to Article VIII, Section 4(1), so that the provision
applicable to the Judiciary can be given full effect without detriment to the President’s
appointing authority. This harmonization will result in restoring to the President the full authority
to appoint Members of the Supreme Court pursuant to the combined operation of Article VII,
Section 15 and Article VIII, Section 4(1).
Viewed in this light, there is essentially no conflict, in terms of the authority to appoint, between
the Executive and Judiciary; the President would effectively be allowed to exercise the
Executive’s traditional presidential power of appointment while respecting the Judiciary’s own
prerogative. In other words, the President retains full powers to appoint Members of the Court
during the election period, and the Judiciary is assured of a full membership within the time
frame given.
Interestingly, the objection to the full application of Article VIII, Section 4(1) comes, not from
the current President, but mainly from petitioners echoing the present presidential candidates,
one of whom shall soon be the incoming President. They do not, of course, cite reasons of power
and the loss of the opportunity to appoint the Chief Justice; many of the petitioners/intervenors
oppose the full application of Article VIII, Section 4(1) based on the need to maintain the
integrity of the elections through the avoidance of a "midnight appointment."
This "integrity" reason is a given in a democracy and can hardly be opposed on the theoretical
plane, as the integrity of the elections must indeed prevail in a true democracy. The statement,
however, begs a lot of questions, among them the question of whether the appointment of a full
Court under the terms of Article VIII, Section 4(1) will adversely affect or enhance the integrity
of the elections.
In my Separate Opinion, I concluded that the appointment of a Member of the Court even during
the election period per se implies no adverse effect on the integrity of the election; a full Court is
ideal during this period in light of the Court’s unique role during elections. I maintain this view
and fully concur in this regard with the majority.
During the election period, the court is not only the interpreter of the Constitution and the
election laws; other than the Commission on Elections and the lower courts to a limited extent,
the Court is likewise the highest impartial recourse available to decisively address any problem
or dispute arising from the election. It is the leader and the highest court in the Judiciary, the only
one of the three departments of government directly unaffected by the election. The Court is
likewise the entity entrusted by the Constitution, no less, with the gravest election-related
responsibilities. In particular, it is the sole judge of all contests in the election of the President
and the Vice-President, with leadership and participation as well in the election tribunals that
directly address Senate and House of Representatives electoral disputes. With this grant of
responsibilities, the Constitution itself has spoken on the trust it reposes on the Court on election
matters. This reposed trust, to my mind, renders academic any question of whether an
appointment during the election period will adversely affect the integrity of the elections – it will
not, as the maintenance of a full Court in fact contributes to the enforcement of the constitutional
scheme to foster a free and orderly election.
In reading the motions for reconsideration against the backdrop of the partisan political noise of
the coming elections, one cannot avoid hearing echoes from some of the arguments that the
objection is related, more than anything else, to their lack of trust in an appointment to be made
by the incumbent President who will soon be bowing out of office. They label the incumbent
President’s act as a "midnight appointment" – a term that has acquired a pejorative meaning in
contemporary society.
As I intimated in my Separate Opinion, the imputation of distrust can be made against any
appointing authority, whether outgoing or incoming. The incoming President himself will be
before this Court if an election contest arises; any President, past or future, would also naturally
wish favorable outcomes in legal problems that the Court would resolve. These possibilities and
the potential for continuing influence in the Court, however, cannot be active considerations in
resolving the election ban issue as they are, in their present form and presentation, all
speculative. If past record is to be the measure, the record of past Chief Justices and of this Court
speaks for itself with respect to the Justices’ relationship with, and deferral to, the appointing
authority in their decisions.
What should not be forgotten in examining the records of the Court, from the prism of problems
an electoral exercise may bring, is the Court’s unique and proven capacity to intervene and
diffuse situations that are potentially explosive for the nation. EDSA II particularly comes to
mind in this regard (although it was an event that was not rooted in election problems) as it is a
perfect example of the potential for damage to the nation that the Court can address and has
addressed. When acting in this role, a vacancy in the Court is not only a vote less, but a
significant contribution less in the Court’s deliberations and capacity for action, especially if the
missing voice is the voice of the Chief Justice.
Be it remembered that if any EDSA-type situation arises in the coming elections, it will be
compounded by the lack of leaders because of the lapse of the President’s term by June 30, 2010;
by a possible failure of succession if for some reason the election of the new leadership becomes
problematic; and by the similar absence of congressional leadership because Congress has not
yet convened to organize itself.34 In this scenario, only the Judiciary of the three great
departments of government stands unaffected by the election and should at least therefore be
complete to enable it to discharge its constitutional role to its fullest potential and capacity. To
state the obvious, leaving the Judiciary without any permanent leader in this scenario may
immeasurably complicate the problem, as all three departments of government will then be
leaderless.
To stress what I mentioned on this point in my Separate Opinion, the absence of a Chief Justice
will make a lot of difference in the effectiveness of the Court as he or she heads the Judiciary,
sits as Chair of the JBC and of the Presidential Electoral Tribunal, presides over impeachment
proceedings, and provides the moral suasion and leadership that only the permanent mantle of
the Chief Justice can bestow. EDSA II is just one of the many lessons from the past when the
weightiest of issues were tackled and promptly resolved by the Court. Unseen by the general
public in all these was the leadership that was there to ensure that the Court would act as one, in
the spirit of harmony and stability although divergent in their individual views, as the Justices
individually make their contributions to the collegial result. To some, this leadership may only be
symbolic, as the Court has fully functioned in the past even with an incomplete membership or
under an Acting Chief Justice. But as I said before, an incomplete Court "is not a whole Supreme
Court; it will only be a Court with 14 members who would act and vote on all matters before it."
To fully recall what I have said on this matter:
The importance of the presence of one Member of the Court can and should never be
underestimated, particularly on issues that may gravely affect the nation. Many a case has been
won or lost on the basis of one vote. On an issue of the constitutionality of a law, treaty or
statute, a tie vote – which is possible in a 14 member court – means that the constitutionality is
upheld. This was our lesson in Isagani Cruz v. DENR Secretary.
More than the vote, Court deliberation is the core of the decision-making process and one voice
is less is not only a vote less but a contributed opinion, an observation, or a cautionary word less
for the Court. One voice can be a big difference if the missing voice is that of the Chief Justice.
Without meaning to demean the capability of an Acting Chief Justice, the ascendancy in the
Court of a permanent sitting Chief Justice cannot be equaled. He is the first among equals – a
primus inter pares – who sets the tone for the Court and the Judiciary, and who is looked up to on
all matters, whether administrative or judicial. To the world outside the Judiciary, he is the
personification of the Court and the whole Judiciary. And this is not surprising since, as Chief
Justice, he not only chairs the Court en banc, but chairs as well the Presidential Electoral
Tribunal that sits in judgment over election disputes affecting the President and the Vice-
President. Outside of his immediate Court duties, he sits as Chair of the Judicial and Bar
Council, the Philippine Judicial Academy and, by constitutional command, presides over the
impeachment of the President. To be sure, the Acting Chief Justice may be the ablest, but he is
not the Chief Justice without the mantle and permanent title of the Office, and even his presence
as Acting Chief Justice leaves the Court with one member less. Sadly, this member is the Chief
Justice; even with an Acting Chief Justice, the Judiciary and the Court remains headless. 35
Given these views, I see no point in re-discussing the finer points of technical interpretation and
their supporting latin maxims that I have addressed in my Separate Opinion and now feel need
no further elaboration; maxims can be found to serve a pleader’s every need and in any case are
the last interpretative tools in constitutional interpretation. Nor do I see any point in discussing
arguments based on the intent of the framers of the Constitution now cited by the parties in the
contexts that would serve their own ends. As may be evident in these discussions, other than the
texts of the disputed provisions, I prefer to examine their purposes and the consequences of their
application, understood within the context of democratic values. Past precedents are equally
invaluable for the lead, order, and stability they contribute, but only if they are in point, certain,
and still alive to current realities, while the history of provisions, including the intents behind
them, are primarily important to ascertain the purposes the provisions serve.
From these perspectives and without denigrating the framers’ historical contributions, I say that
it is the Constitution that now primarily speaks to us in this case and what we hear are its direct
words, not merely the recorded isolated debates reflecting the personal intents of the
constitutional commissioners as cited by the parties to fit their respective theories. The voice
speaking the words of the Constitution is our best guide, as these words will unalterably be there
for us to read in the context of their purposes and the nation’s needs and circumstances. This
Concurring and Dissenting Opinion hears and listens to that voice.
The Valenzuela Decision
The ponencia’s ruling reversing Valenzuela, in my view, is out of place in the present case, since
at issue here is the appointment of the Chief Justice during the period of the election ban, not the
appointment of lower court judges that Valenzuela resolved. To be perfectly clear, the conflict in
the constitutional provisions is not confined to Article VII, Section 15 and Article VIII, Section
4(1) with respect to the appointment of Members of the Supreme Court; even before the
Valenzuela ruling, the conflict already existed between Article VII, Section 15 and Article VIII,
Section 9 – the provision on the appointment of the justices and judges of courts lower than the
Supreme Court. After this Court’s ruling in Valenzuela, no amount of hairsplitting can result in
the conclusion that Article VII, Section 15 applied the election ban over the whole Judiciary,
including the Supreme Court, as the facts and the fallo of Valenzuela plainly spoke of the
objectionable appointment of two Regional Trial Court judges. To reiterate, Valenzuela only
resolved the conflict between Article VII, Section 15 and appointments to the Judiciary under
Article VIII, Section 9.
If Valenzuela did prominently figure at all in the present case, the prominence can be attributed
to the petitioners’ mistaken reading that this case is primary authority for the dictum that Article
VII, Section 15 completely bans all appointments to the Judiciary, including appointments to the
Supreme Court, during the election period up to the end of the incumbent President’s term.
In reality, this mistaken reading is an obiter dictum in Valenzuela, and hence, cannot be cited for
its primary precedential value. This legal situation still holds true as Valenzuela was not
doctrinally reversed as its proposed reversal was supported only by five (5) out of the 12
participating Members of the Court. In other words, this ruling on how Article VII, Section 15 is
to be interpreted in relation with Article VIII, Section 9, should continue to stand unless
otherwise expressly reversed by this Court.
But separately from the mistaken use of an obiter ruling as primary authority, I believe that I
should sound the alarm bell about the Valenzuela ruling in light of a recent vacancy in the
position of Presiding Justice of the Sandiganbayan resulting from Presiding Justice Norberto
Geraldez’s death soon after we issued the decision in the present case. Reversing the Valenzuela
ruling now, in the absence of a properly filed case addressing an appointment at this time to the
Sandiganbayan or to any other vacancy in the lower courts, will be an irregular ruling of the first
magnitude by this Court, as it will effectively be a shortcut that lifts the election ban on
appointments to the lower courts without the benefit of a case whose facts and arguments would
directly confront the continued validity of the Valenzuela ruling. This is especially so after we
have placed the Court on notice that a reversal of Valenzuela is uncalled for because its ruling is
not the litigated issue in this case.
In any case, let me repeat what I stressed in my Separate Opinion about Valenzuela which rests
on the reasoning that the evils Section 15 seeks to remedy – vote buying, midnight appointments
and partisan reasons to influence the elections – exist, thus justifying an election appointment
ban. In particular, the "midnight appointment" justification, while fully applicable to the more
numerous vacancies at the lower echelons of the Judiciary (with an alleged current lower court
vacancy level of 537 or a 24.5% vacancy rate), should not apply to the Supreme Court which has
only a total of 15 positions that are not even vacated at the same time. The most number of
vacancies for any one year occurred only last year (2009) when seven (7) positions were vacated
by retirement, but this vacancy rate is not expected to be replicated at any time within the next
decade. Thus "midnight appointments" to the extent that they were understood in Aytona36 will
not occur in the vacancies of this Court as nominations to its vacancies are all processed through
the JBC under the public’s close scrutiny. As already discussed above, the institutional integrity
of the Court is hardly an issue. If at all, only objections personal to the individual Members of
the Court or against the individual applicants can be made, but these are matters addressed in the
first place by the JBC before nominees are submitted. There, too, are specific reasons, likewise
discussed above, explaining why the election ban should not apply to the Supreme Court. These
exempting reasons, of course, have yet to be shown to apply to the lower courts. Thus, on the
whole, the reasons justifying the election ban in Valenzuela still obtain in so far as the lower
courts are concerned, and have yet to be proven otherwise in a properly filed case. Until then,
Valenzuela, except to the extent that it mentioned Section 4(1), should remain an authoritative
ruling of this Court.
CONCLUSION
In light of these considerations, a writ of prohibition cannot issue to prevent the JBC from
performing its principal function, under the Constitution, of recommending nominees for the
position of Chief Justice. Thus, I vote to deny with finality the Tolentino and Soriano motions for
reconsideration.
The other motions for reconsideration in so far as they challenge the conclusion that the
President can appoint the Chief Justice even during the election period are likewise denied with
finality for lack of merit, but are granted in so far as they support the continued validity of the
ruling of this Court in In Re: Valenzuela and Vallarta, A.M. No. 98-5-01-SC, November 9, 1998.
My opinion on the Mendoza petition stands.
ARTURO D. BRION
Associate Justice
Footnotes
1
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408. This A.M. involves the
constitutional validity of the appointment of two (2) RTC Judges on March 30, 1998 – a
date that falls within the supposed ban under Section 15, Article VII of the Constitution.
We nullified the appointments.
2
G.R. No. 191002 and companion cases, promulgated on March 17, 2010.
3
Justices Diosdado M. Peralta, Mariano C. Del Castillo and Jose Catral Mendoza.
4
G.R. No. 191002, Petition for Certiorari and Mandamus.
5
G.R. No. 191149, Petition for Certiorari and Mandamus.
6
The JBC reiterates its position in its Comment (dated April 12, 2010) on the motions for
reconsideration that it is still acting on the preparation of the list of nominees and is set to
interview the nominees.
7
See, for instance, the motion for reconsideration of intervenor Alfonso Tan, Jr.
8
The docketed petitions were seven; the petitions-in-intervention were ten.
9
A prohibition petition seeks to stop the proceedings of a tribunal, corporation, board,
officer or person exercising judicial, quasi-judicial or ministerial functions if any of its
act is without or in excess of jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction.
10
Separate Opinion, p. 16.
11
The JBC position states:
xxxx
Likewise, the JBC has yet to take a position on when to submit the shortlist to the
proper appointing authority, in light of Section 4(1), Article VIII of the
Constitution, which provides that vacancy in the Supreme Court shall be filled
within ninety (90) days from the occurrence thereof, Section 15, Article VII of the
Constitution concerning the ban on Presidential appointments "two (2) months
immediately before the next presidential elections and up to the end of his term"
and Section 261(g), Article XXIII of the Omnibus Election Code of the
Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the Constitution,
the JBC will be guided by its decision in these consolidated Petitions and
Administrative Matter. [Emphasis supplied.]
12
Mendoza Petition, pp. 5-6.
13
Separate Opinion, pp. 16-17.
14
Supra note 11.
15
Id. at 17.
16
Separate Opinion, pp. 19-22:
A first reality is that the JBC cannot, on its own due to lack of the proper
authority, determine the appropriate course of action to take under the
Constitution. Its principal function is to recommend appointees to the Judiciary
and it has no authority to interpret constitutional provisions, even those affecting
its principal function; the authority to undertake constitutional interpretation
belongs to the courts alone.
A second reality is that the disputed constitutional provisions do not stand alone
and cannot be read independently of one another; the Constitution and its various
provisions have to be read and interpreted as one seamless whole, giving
sufficient emphasis to every aspect in accordance with the hierarchy of our
constitutional values. The disputed provisions should be read together and, as
reflections of the will of the people, should be given effect to the extent that they
should be reconciled.
The third reality, closely related to the second, is that in resolving the coverage
of the election ban vis-à-vis the appointment of the Chief Justice and the
Members of the Court, provisions of the Constitution other than the disputed
provisions must be taken into account. In considering when and how to act, the
JBC has to consider that:
1. The President has a term of six years which begins at noon of June 30
following the election, which implies that the outgoing President remains
President up to that time. (Section 4, Article VII). The President assumes
office at the beginning of his or her term, with provision for the situations
where the President fails to qualify or is unavailable at the beginning of
his term (Section 7, Article VII).
2. The Senators and the Congressmen begin their respective terms also at
midday of June 30 (Sections 4 and 7, Article VI). The Congress convenes
on the 4th Monday of July for its regular session, but the President may
call a special session at any time. (Section 15, Article VI)
3. The Valenzuela case cited as authority for the position that the election
ban provision applies to the whole Judiciary, only decided the issue with
respect to lower court judges, specifically, those covered by Section 9,
Article VIII of the Constitution. Any reference to the filling up of
vacancies in the Supreme Court pursuant to Section 4(1), Article VIII
constitutes obiter dictum as this issue was not directly in issue and was not
ruled upon.
These provisions and interpretation of the Valenzuela ruling – when read together
with disputed provisions, related with one another, and considered with the May
17, 2010 retirement of the current Chief Justice – bring into focus certain
unavoidable realities, as follows:
1. If the election ban would apply fully to the Supreme Court, the
incumbent President cannot appoint a Member of the Court beginning
March 10, 2010, all the way up to June 30, 2010.
2. The retirement of the incumbent Chief Justice – May 17, 2010 – falls
within the period of the election ban. (In an extreme example where the
retirement of a Member of the Court falls on or very close to the day the
election ban starts, the Office of the Solicitor General calculates in its
Comment that the whole 90 days given to the President to make
appointment would be covered by the election ban.)
3. Beginning May 17, 2010, the Chief Justice position would be vacant,
giving rise to the question of whether an Acting Chief Justice can act in
his place. While this is essentially a Supreme Court concern, the Chief
Justice is the ex officio Chair of the JBC; hence it must be concerned and
be properly guided.
4. The appointment of the new Chief Justice has to be made within 90

days from the time the vacancy occurs, which translates to a deadline of
August 15, 2010.
5. The deadline for the appointment is fixed (as it is not reckoned from the
date of submission of the JBC list, as in the lower courts) which means
that the JBC ideally will have to make its list available at the start of the
90-day period so that its process will not eat up the 90-day period granted
the President.
6. After noon of June 30, 2010, the JBC representation from Congress
would be vacant; the current representatives’ mandates to act for their
principals extend only to the end of their present terms; thus, the JBC shall
be operating at that point at less than its full membership.
7. Congress will not convene until the 4th Monday of July, 2010, but
would still need to organize before the two Houses of Congress can send
their representatives to the JBC – a process may extend well into August,
2010.
8. By July 5, 2010, one regular member of the JBC would vacate his post.
Filling up this vacancy requires a presidential appointment and the
concurrence of the Commission on Appointments.
9. Last but not the least, the prohibition in Section 15, Article VII is that "a
President or Acting President shall not make appointments." This
prohibition is expressly addressed to the President and covers the act of
appointment; the prohibition is not against the JBC in the performance of
its function of "recommending appointees to the Judiciary" – an act that is
one step away from the act of making appointments.
17
The Province of North Cotabato v. Government of the Republic of the Philippines
Peace Panel Ancestral Domain, G.R. Nos. 183591, 183791, 183752, 183893, 183951 and
183962, October 14, 2008.
18
By virtue of its power of administrative supervision, the Supreme Court oversees the
judges’ and court personnel’s compliance with the laws, rules and regulations. It may
take the proper administrative action against them if they commit any violation. See
Ampong v. CSC, G.R. No. 107910, August 26, 2008, 563 SCRA 293. The Constitution
separately provides for the Supreme Court’s supervision over the JBC. See Article VIII,
Section 8 of the CONSTITUTION.
19
Judicial Review is the power of the courts to test the validity of executive and
legislative acts for their conformity with the Constitution, Garcia v. Executive Secretary,
G.R. No. 157584, April 2, 2009.
20
Control is the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the
judgment of the former for that of the latter. It is distinguished from supervision in that
the latter means overseeing, or the power or authority of an officer to see that subordinate
officers perform their duties, and if the latter fail or neglect to fulfill them, then the
former may take such action or steps as prescribed by law to make them perform these
duties. Nachura, J., Outline Reviewer in Political Law, 2006 ed., p. 276.
21
G.R. No. 156052, February 13, 2008, 545 SCRA 92.
22
Supra notes 11 and 14.
23
Philippine Bar Association (PBA), Women Trial Lawyers Organization of the
Philippines (WTLOP), Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter Irving
Corvera and Alfonso V. Tan, Jr.
24
See PBA’s Motion for Reconsideration.
25
See the Motions for Reconsideration for PBA, WTLOP, Atty. Amador Z. Tolentino,
Atty. Roland B. Inting, Peter Irving Corvera and Alfonso V. Tan, Jr.
26
CONSTITUTION, Article VII, Section 15:
Two months immediately before the next presidential elections and up to the end
of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein
will prejudice public service or endanger public safety.
27
CONSTITUTION, Article VIII, Section 4(1):
(1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or, in its discretion, in divisions of three,
five, or seven Members. Any vacancy shall be filled within ninety days from the
occurrence thereof.
xxxx
28
See Petition on Intervention of WTLOP, as cited in the decision in the above-captioned
cases; see also: PBA’s motion for reconsideration.
29
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415
SCRA 44, citing Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1994);
Peralta v. Commission on Elections, G.R. No. 47771, March 11, 1978, 82 SCRA 30
(1978); Ang-Angco v. Castillo, G.R. No. 17169, November 30, 1963, 9 SCRA 619
(1963).
30
Macalintal v. Commission on Elections, G.R. No. 157013, July 10, 2003, 310 SCRA
614, citing Chiongbian v. De Leon, 82 Phil 771 (1949).
31
Article VI for the Legislature, Article VII for the Executive, and Article VIII for the
Judiciary.
32
See Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49; where the
court resolved the clash between the power of the President to extend ad interim
appointments and the power of the Commission on Appointments to confirm presidential
appointments.
33
Ibid.
34
Supra note 13.
35
Separate Opinion, p. 32.
36
Aytona v. Castillo, G.R. No. 19315, January 19, 1962, 4 SCRA 1.
SUPREME COURT
Baguio City
EN BANC
G.R. Nos. 187958, 187961, and 187962 April 7, 2010
MAYOR ABRAHAM N. TOLENTINO, Petitioner,

vs.
COMMISSION ON ELECTIONS, JOCELYN RICARDO, ARNEL TARUC, MARLENE
CATAN, MARIA THERESA MENDOZA COSTA, FIDELA ROFOLS CASTILLO,
DOMINADOR BASSI, ROBERTO MALABANAN HERNANDEZ, NERISSA
MANZANO, LEONIDEZ MAGLABE HERNANDEZ, TAGUMPAY REYES, and ELINO
FAJARDO Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 187966, 187967, and 187968
VICE-MAYOR CELSO P. DE CASTRO, Petitioner,

vs.
COMMISSION ON ELECTIONS and ARNEL TARUC,
DECISION
BERSAMIN, J.:
Before us are two petitions for certiorari and prohibition assailing several orders of the Second
Division (Division) of the Commission on Election (COMELEC) relative to its revision of
ballots under Section 6, Rule 20 of its Rules of Procedure in the protests on the results of the
local elections in 2007 in Tagaytay City.
In G.R. Nos. 187958 and 187961-62, the petitioner, Abraham N. Tolentino (Tolentino), seeks the
nullification of the orders dated May 8, 20091 and May 25, 2009.2 In the first order, the Division
formally requested the Senate Electoral Tribunal (SET) to allow the conduct of the revision
within the SET’s premises; in the second, the Division denied Tolentino’s motion for
reconsideration vis-à-vis the first order. Tolentino prayed for the issuance of temporary
restraining order (TRO) and/or a writ of preliminarily injunction.
In G.R. Nos. 187966-68, the petitioner, Celso P. De Castro (De Castro), assails the order dated
June 2, 2009,3 which denied the motion to suspend the scheduled revision of ballots in the SET
premises. De Castro prayed for the issuance of a TRO or writ of preliminary injunction or status
quo ante order.
The petitions were consolidated on July 28, 2009 due to their commonality as to the facts and
issues.
Antecedents
In the May 14, 2007 elections, all the parties ran for elective local offices in Tagaytay City.
Tolentino and De Castro were proclaimed as the duly elected Mayor and Vice-Mayor,
respectively. The private respondents contested the election results in 116 ballot boxes by filing
three separate election protests against the proclaimed winning candidates for Mayor, Vice-
Mayor and Members of the Sanggunian Panlungsod, docketed as EPC Case
No. 2007-07,4 EPC Case No. 2007-08,5 and EPC Case No. 2007-09.6 The protests were raffled to
the Second Division of the COMELEC. The records do not contain the order for the
consolidation of the cases, but it appears that they were consolidated previously inasmuch as the
caption of all orders issued by the Division indicated the joining of the cases.
After finding the protests sufficient in form and substance, the Division required the City
Treasurer of Tagaytay City to inventory the protested ballot boxes and to turn them over to the
Election Officer of Tagaytay City for delivery and submission to the COMELEC’s Electoral
Contests Adjudication Department (ECAD) in Manila.
However, the delivery and submission took place only on December 17, 2008 due to the moves
of Tolentino and De Castro of taking turns to suspend the transmittal of the ballot boxes to
ECAD. Tolentino moved to defer the transmittal of the ballot boxes to ECAD on the premise that
he had to complete the photocopying and verification of the contested ballots; upon denial of his
motion, he elevated the issue to the Court by petition for certiorari (docketed as G.R. No.
183806-08). The petition was eventually dismissed for lack of merit on September 16, 2008.7 On
his part, De Castro moved for the reconsideration of the September 7, 2007 order in the
COMELEC en banc, which denied the motion. In the order dated March 6, 2008, the Division
re-directed the City Treasurer and the Election Officer of Tagaytay City to implement the
directives of its September 7, 2007 order.
In this connection, the Court ruled on September 16, 2008 in G.R. No. 183806-08 – Tolentino’s
earlier petition for certiorari – that there was no longer any legal bar against the full
implementation of the Division’s September 7, 2007 order for the immediate transmittal of the
ballot boxes for purposes of the revision and recount.
Further delay occurred because 44 of the 116 contested ballot boxes became involved in the
election protest of candidate Aquilino L. Pimentel III against Senator Juan Miguel F. Zubiri
pending in the SET and docketed as SET Case No. 001-07.
On November 21, 2008, De Castro again sought the suspension of the revision proceedings,8
citing the order issued on November 17, 2008 by the SET, asserting the SET’s preferential
custody pursuant to Section 2 of COMELEC Resolution No. 2812 over the ballot boxes, election
documents, and election paraphernalia in connection with SET Case No. 001-07.
However, the Division resolved not to suspend the revision proceedings, and instead directed the
Election Officer of Tagaytay City to deliver the affected ballot boxes to the SET, with the
remainder of the ballot boxes to be deposited in the ECAD Ballot Box Storage Area in Manila.9
In his Compliance Report dated December 16, 2008,10 the Election Officer certified that 116
ballot boxes were contested in EPC Nos. 2007-07, 2007-08 and 2007-09; that 44 ballot boxes
were delivered to the SET for being simultaneously involved in SET Case No. 001-07;11 that on
December 17, 2008, 72 ballot boxes were delivered to the ECAD; that of the 44 ballot boxes
delivered to the SET, 16 were set aside with appropriate remarks "No metal seal outside" or
"Metal seal not properly locked";12 and that out of the 72 ballot boxes delivered to the ECAD, 24
were set aside with the remarks "No metal seal outside", or "Metal seal not properly locked", or
"2 padlocks only."13
In other words, 40 ballot boxes out of the 116 protested ones were set aside due to apparent
sealing defects or irregularities.
On January 6, 2009, upon receipt of the 72 ballot boxes, the Division ordered the constitution of
four Revision Committees,14 for the committees to convene and commence the revision of the 72
ballot boxes in such a way that whenever a ballot box was opened, its contents should be revised
for all of the three protest cases before opening the next ballot box.
On January 9, 2009, Tolentino and De Castro separately moved for the reconsideration of the
Division’s order. Tolentino thereby raised prematurity due to the unresolved pending issues, the
absence of guidelines or procedure, and the fact that not all the involved ballot boxes were in the
COMELEC’s custody. De Castro sought to clarify the dispositions in the assailed order,
reminding that there would be a simultaneous revision for the three protest cases involving three
positions; and to suspend the proceedings until after all pending incidents were resolved pursuant
to Section 2, Rule 19 of the COMELEC Rules of Procedure.
On January 12, 2009, the Division suspended the revision proceedings until all the contested
ballot boxes were already in the custody of the COMELEC.151avvphi1
It did not take long thereafter before the Division lifted the suspension of the revision
proceedings upon the private respondents’ manifestation, considering that the SET, through its
letter dated February 16, 2009, had meanwhile agreed to accommodate the Division’s request to
conduct the revision proceedings in the SET’s premises from March 2 to 13, 2009.16
On May 8, 2009, the Division issued the first assailed order in G.R. Nos. 187958 and 187961-62,
formally requesting the SET to allow the revision to proceed within its premises, viz:
Acting on the JOINT MANIFESTATION WITH REQUEST TO SET SCHEDULE OF

REVISION filed by protestants, through counsel on February 16, 2009 and on the COMMENTS
filed by protestee, through counsel, in EPC 2007-07, Abraham N. Tolentino on February 25,
2009; protestee in EPC 2007-08, Celso P. De Castro on February 27, 2009; protestees in EPC
2007-08 x x x.
In connection thereto, in order to facilitate the resolution of election protest cases considering
that barely a year is left of the contested term of offices, the Commission (Second Division)
hereby REQUESTS the Senate Electoral Tribunal (SET) to allow the Commission to conduct
revision within its premises, under such terms and conditions that the Tribunal may impose.
SO ORDERED.17
Tolentino moved to reconsider this order, but the Division denied his motion through its second
assailed order dated May 25, 2009, thus:
xxx
We find protestee’s allegation unmeritorious. It should be understood that the deferment of the
revision was due to the unavailability at that time of the ballot boxes. To address this situation,
the Commission under its plenary powers, can avail of alternative methods to facilitate the
disposition of cases pursuant to the rule that election protest cases should be resolved with
dispatch. Hence, coordination with other tribunals for purposes of revision of ballots subject of
simultaneous protests is the usual course of action taken by the Commission.
IN VIEW THEREOF, there is no cogent reason for the Commission (Second Division) to
reconsider its order dated May 8, 2009. Moreover, the Senate Electoral Tribunal, in a letter dated
May 20, 2009 addressed to Presiding Commissioner Nicodemo T. Ferrer, granted the
Commission’s request to revise the contested ballots involved in the instant cases within its
premises.
SO ORDERED.18
On May 25, 2009,19 the Division directed anew the constitution of the four Revision Committees
and the commencement of the revision of the 44 ballot boxes within the SET premises on June 3,
2009.
On May 29, 2009, De Castro filed a verified omnibus motion requesting the Division to
formulate first the mechanics, guidelines and procedure for the simultaneous revision of the
ballots for the three distinct positions protested, and to defer the revision proceedings until after
all pending incidents had been resolved.20
In its June 2, 2009 order, the Division ruled that:
xxx there is no cogent reason to suspend the scheduled revision of ballots in these cases.
First, there is no need to specific rules regarding the revision of ballots because the Revision
Committee will conduct the revision of the forty-four (44) contested ballots now in the custody
of the Senate Electoral Tribunal, per case and not simultaneously. The normal procedure of
revision shall be followed.
Second, considering that the twenty-four (24) segregated ballot boxes are in the custody of the
Commission, the appropriate order as regards thereto shall later be issued.
Anent, protestee De Castro's submission of the names of his revisors and manifestation of his
intent to photocopy all the contested ballots and other related election documents, the
Commission (Second Division) hereby APPROVES and NOTES the same, respectively.
xxx
SO ORDERED.21
De Castro now assails the June 2, 2009 order in G.R. Nos. 187966-68. It appears that De
Castro’s omnibus motion and compliance filed on May 29, 2009, which was the subject of the
assailed order, was in effect a motion for the reconsideration of the May 25, 2009 order of the
Division received on the same date.22
In furtherance of his cause, Tolentino filed on June 30, 2009 his supplement to the petition,23
alleging that events had transpired subsequent to the filing of his petition. He stated that the
revision proceedings concerning EPC 2007-07 conducted within the SET premises on June 3 to
8, 2009 involved only 28 ballot boxes because the Revision Committee suspended the revision of
the set-aside 16 ballot boxes.
It appears that the Division likewise ordered the Revision Committees: (a) to verify the condition
of the ballot boxes and to submit a report thereon upon the termination of the revision
proceedings;24 (b) to submit a consolidated report on all the set-aside ballot boxes, including the
16 delivered to the SET whose revision was suspended by the Revision Committees;25 and (c)
not to open the set-aside ballot boxes so that the Division would not be pre-empted in resolving
whether the ballot boxes found to have defective security devices should be included in the
revision of ballots and, instead, to authorize the Revision Committees only to verify the
condition of such ballot boxes and submit a report thereon, to become the basis for the Division
to resolve the pending issue.26
Issues
In G.R. Nos. 187958 and 187961-62, Tolentino raises the following issues:
I. WHETHER OR NOT PUBLIC RESPONDENT, THE HONORABLE COMMISSION ON

ELECTIONS, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED ISSUANCES
ORDERING THE REVISION OF THE FORTY FOUR (44) BALLOT BOXES WITH THE
HONORABLE SENATE ELECTORAL TRIBUNAL WITHOUT FIRST RESOLVING
WHETHER OR NOT THE SIXTEEN (16) BALLOT BOXES OF THE SAID FORTY FOUR
(44) BALLOT BOXES, WHICH WERE SEGREGATED OR SET ASIDE, SHOULD BE
INCLUDED IN THE REVISION.
II. WHETHER OR NOT PUBLIC RESPONDENT, THE HONORABLE COMMISSION ON
ELECTIONS, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED ISSUANCES
ORDERING THE REVISION OF THE FORTY FOUR (44) BALLOT BOXES WITH THE
HONORABLE SENATE ELECTORAL TRIBUNAL WITHOUT RESOLVING HOW THE
REVISION PROCEEDINGS WOULD BE CONDUCTED IN EPC NOS. 2007-07 TO 09, IN
LINE WITH THE ROSAL DOCTRINE AND WITH OBSERVANCE OF THE BASIC
TENETS OF DUE PROCESS.
In his supplement to the petition, he adds the following issues:
I. WHETHER OR NOT THE HONORABLE COMMISSION ON ELECTIONS (SECOND

DIVISION) COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN IT VIOLATED THE CARDINAL RULE IN
ADMINISTRATIVE CASES.
II. WHETHER HONORABLE COMMISSION ON ELECTIONS (2ND DIVISION)

OF JURISDICTION WHEN IT ISSUED PIECEMEAL ORDERS LEADING TO
DISORDERLY PROCEEDINGS.
In G.R. Nos. 187966-68, De Castro raises the sole issue:
WHETHER OR NOT THE PUBLIC RESPONDENT COMELEC SECOND DIVISION

OF JURISDICTION IN ISSUING THE QUESTIONED ORDER DATED JUNE 2, 2009.
Arguments and Contentions of the Parties
Tolentino contends that the Division should first resolve the issue of the inclusion or exclusion of
the protested ballot boxes, considering that the verification, investigation and examination of
their condition had already been terminated by the Election Officer of Tagaytay City; that citing
Rosal v. Commission on Elections (G.R. Nos. 172741 and 168253, March 16, 2007, 518 SCRA
473), he insists that the COMELEC should provide a reasonable procedure in view of a vital
threshold issue of "whether the ballots found in the ballot boxes during the revision proceedings
were the same ballots that were cast and counted in the elections;" and that the assailed issuances
totally overhauled, amended, and altered the final and executory ruling of January 12, 2009 that
deferred any revision proceedings until all the protested ballot boxes were all in the custody of
the COMELEC.
De Castro submits that the obstinate refusal of the Division to issue an order setting forth the
ground rules for the per case revision of ballots was an omission exemplifying a grave abuse of
discretion and a denial of his substantive and procedural right to due process; that the caption of
the orders dated May 25, 2009 and June 2, 2009 show that the three protest cases were
consolidated, but the Division still chose to conduct the revision piecemeal starting with the
position of Mayor, then of Vice Mayor, and finally of City Councilors, separately as provided in
the June 2, 2009 order.27
The private respondents counter through their Consolidated Joint Comment filed on September
8, 200928 that Rosal does not mention any requirement for the suspension of revision of ballots
or for the stoppage of the opening of a ballot box in a revision proceeding; that the set-aside
ballot boxes should be opened; that a full determination of the "integrity of the ballot boxes and
their contents" could be made only if the status and condition of the contents were also
considered; that the disallowance of the opening of the set-aside ballot boxes pre-empted the
parties’ rights to examine, present and argue upon the condition of the ballot boxes and their
contents; that the COMELEC could not be bound to maintain a strict adherence to its January 12,
2009 order because the SET had already allowed the revision to be conducted within its
premises; and that the COMELEC had issued sufficient and adequate rules of procedure for the
revision of the questioned ballots, for, as mandated in the June 2, 2009 order, the normal
procedure of revision would be followed, implying that the procedure in previous revision of
ballots be maintained.
Ruling
The petitions have no merit.
G.R. No. 187958 and Nos. 187961-62
At the outset, the Court holds that the order of revision and the revision of ballots synchronized
with that of the SET were proper. The reasons for this holding follow.
First: In regular election contests, the general averment of fraud or irregularities in the counting
of votes justifies the examination of the ballots and recounting of votes. This process of
examination is the revision of the ballots pursuant to Section 6, Rule 20 of the 1993 COMELEC
Rules of Procedure, to wit:
Section 6. Revision of Ballots. – When the allegations in a protest or counter-protest so warrant,

or whenever in the opinion of the Commission or Division the interest of justice so demands, it
shall immediately order the ballot boxes containing ballots and their keys, list of voters with
voting records, book of voters, and other documents used in the election to be brought before the
Commission, and shall order the revision of the ballots.
The protests involved herein assailed the authenticity of the election returns and the veracity of
the counting of the ballots.29 In that regard, the ballots themselves are the best evidence, for, as
stated in Miguel v. Commission on Elections: 30
The rule in this jurisdiction is clear and jurisprudence is even clearer. In a string of categorical
pronouncements, we have consistently ruled that when there is an allegation in an election
protest that would require the perusal, examination or counting of ballots as evidence, it is the
ministerial duty of the trial court to order the opening of the ballot boxes and the examination
and counting of ballots deposited therein.
The only means to overcome the presumption of legitimacy of the election returns is to examine
and determine first whether the ballot boxes have been substantially preserved in the manner
mandated by law. Hence, the necessity to issue the order of revision.
Second: The synchronized revision of ballots by the SET and the Division is allowed under
Section 3 of COMELEC Resolution No. 2812, which provides:
Section 3. The Tribunals, the Commission and the Courts shall coordinate and make arrangement
with each other so as not to delay or interrupt the revision of ballots being conducted. The
synchronization of revision of ballots shall be such that the expeditious disposition of the
respective protest cases shall be the primary concern.
According to Mendoza v. Commission on Elections,31 the COMELEC does not lose jurisdiction
over the provincial election contest by reason of the transmittal of the provincial ballot boxes and
other election materials to the SET, because its jurisdiction over provincial election contest exists
side by side with the jurisdiction of the SET, with each tribunal being supreme in its respective
areas of concern, with neither being higher than the other in terms of precedence; hence, the
jurisdiction of one must yield to the other.
In the proper exercise of its jurisdiction, therefore, the Division, mindful of the need for the
expeditious disposition of the cases, formally requested the SET to permit the revision of the 44
ballot boxes within its premises. The Division made this request although it had suspended the
revision proceedings through a previous order on account of the then incomplete number of
ballot boxes in ECAD’s custody. In this connection, the contention that the Division’s
suspension order became immutable cannot be upheld; such an order, being essentially
interlocutory in character, could not attain finality. An interlocutory order is one that resolves an
incidental or collateral matter without putting an end to the case, and for that reason does not
become final and immutable upon the expiration of the period prescribed for taking an appeal
from a judgment or final order.32
It is clear that by its suspension order the Division only adopted an auxiliary means necessary to
carry its jurisdiction into effect. In that light, we should find that there was no irregularity in the
Division’s lifting of the suspension, for, after all, nothing prohibited the COMELEC from
undertaking the appreciation of ballots in tandem with the SET’s own revision of ballots for the
senatorial electoral protest.
Third: Under Section 11, Rule 20 of the COMELEC Rules of Procedure,33 one of the most
indispensable informations that should appear in the revision report relates to the conditions of
the ballot boxes. The importance of this information cannot be understated. According to Rosal
v. Commission on Elections,34 "the integrity of the ballots and therefore their probative value, as
evidence of the voters’ will, are contingent on the integrity of the ballot boxes in which they
were stored." This was precisely what Tolentino was asking the Division to do before the order
of revision issued.
Yet, the Court rejects Tolentino’s urging for obvious reasons. Any defects in the security locks
or seals of the set-aside ballot boxes, as predetermined by the examining Election Officer, could
not yet satisfy the requirement of the rule. For one, the COMELEC was not bound by the report
simply because the defects still needed to be confirmed during the process of actual revision.
Moreover, the presumption that the ballots reflected the intent of the voters, as expressly
recognized in Section 6(c)(2), Rule 13 of A.M. No. 07-4-15- SC,35 should not be done away with
solely on the basis of the report of the City Election Officer, by which said officer complied with
a requirement set primarily for the transmittal of the ballot boxes involved. Rosal, which A.M.
No. 07-4-15- SC complements, demands more than such a report in order to overcome the
presumption. More than such report, there should be a full blown trial in which all the parties
concerned should be allowed the opportunity to present their own evidence, to raise their
objections, and to pose their claims before reaching a finding of ballot box tampering. Rosal
clearly mandates so, viz:
Under the circumstances, the question as to who between the parties was duly elected to the
office of mayor cannot be settled without further proceedings in the Comelec. In keeping with
the precepts laid down in this decision, the Comelec must first ascertain, after due hearing,
whether it has before it the same ballots cast and counted in the elections. For this purpose, it
must determine: (1) which ballot boxes sufficiently retained their integrity as to justify the
conclusion that the ballots contained therein could be relied on as better evidence than the
election returns and (2) which ballot boxes were in such a condition as would afford a reasonable
opportunity for unauthorized persons to gain unlawful access to their contents. In the latter case,
the ballots must be held to have lost all probative value and cannot be used to set aside the
official count reflected in the election returns.36
Consequently, no ruling could be handed down against the integrity of the ballot boxes that
would effectively render naught the evidentiary value of the ballots they contained unless a full
blown trial on the merits was first conducted. Tolentino should accept the legal impossibility for
the Division to rule on the issue of inclusion or exclusion of the set-aside ballot boxes except
after the revision process.
In Rosal, we set the doctrinal guidelines in settling the issue in an election protest of who among
the parties was the real choice of the electorate, thus:
We summarize the foregoing doctrines: (1) the ballots cannot be used to overturn the official
count as reflected in the election returns unless it is first shown affirmatively that the ballots have
been preserved with a care which precludes the opportunity of tampering and all suspicion of
change, abstraction or substitution; (2) the burden of proving that the integrity of the ballots has
been preserved in such a manner is on the protestant; (3) where a mode of preserving the ballots
is enjoined by law, proof must be made of such substantial compliance with the requirements of
that mode as would provide assurance that the ballots have been kept inviolate notwithstanding
slight deviations from the precise mode of achieving that end; (4) it is only when the protestant
has shown substantial compliance with the provisions of law on the preservation of ballots that
the burden of proving actual tampering or the likelihood thereof shifts to the protestee and (5)
only if it appears to the satisfaction of the court or Comelec that the integrity of the ballots has
been preserved should it adopt the result as shown by the recount and not as reflected in the
election returns.37
The foregoing guidelines were inapplicable, however, considering that the proceedings were still
in the hearing stage. This explains why the Division deemed the determination of the physical
conditions of the ballot boxes as a necessary measure for its final determination of whether or not
to give probative value to the ballots contained in the set-aside ballot boxes. The Division had
still to reach the deliberative stage of the protests, when it would decide based on the evidence
presented during trial. Before then, deciding on the propriety of relying on the results of the
revision of ballots instead of the election returns did not yet arise.
Rosal does not forbid the revision of the set-aside ballots. What it proscribes is the blind
adherence to the result of the recount without taking into consideration the proof of any
likelihood that the integrity of the ballot boxes was compromised. It forbids the COMELEC from
conducting "a fresh appreciation of the contested ballots without first ascertaining whether the
ballots to be recounted had been kept inviolate."38 Tolentino should understand that election
contests would not end with the result of the revision; and that the revision reports, being
evidentiary, should still be scrutinized like any other evidence presented before the Division.
Verily, the revision was not an end in itself, but simply demarcated the beginning of the process
of determining the true result of the election.
Fourth: The supplemental arguments of Tolentino allege a violation of his right to due process by
the non-observance of the cardinal rules of due process in administrative adjudications and by
the piece-meal resolution of the pending incidents.
In Ang Tibay v. Court of Industrial Relations,39 the Court enunciated the cardinal rules for
procedural due process in administrative or quasi-judicial tribunal, to wit:
1. The right to a hearing, which includes the right to present one’s case and submit
evidence in support thereof;
2. The tribunal must consider the evidence presented;
3. The decision must have something to support itself;
4. The evidence must be substantial. Substantial evidence is such reasonable evidence as

a reasonable mind might accept as adequate to support a conclusion;
5. The decision must be based on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected;
6. The tribunal or body or any of its judges must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of
a subordinate; and
7. The tribunal or body should render its decision in such manner that the parties to the
proceeding can know the various issues involved and the reason for the decision
rendered.
The Ang Tibay formulation was overlapping and repetitious. Hence, in Air Manila, Inc. v.
Balatbat,40 the formulation was simplified into four basic rights, as follows:
1. The right to notice, be it actual or constructive, of the institution of the proceedings

that may affect a person’s legal right;
2. The right to a reasonable opportunity to appear and defend his rights and to introduce
witnesses and relevant evidence in his favor;
3. The right to a tribunal so constituted as to give him reasonable assurance of honesty

and impartiality, and one of competent jurisdiction; and
4. The right to a finding or decision of that tribunal supported by substantial evidence

presented at the hearing or at least ascertained in the records or disclosed to the parties.
Gauged upon the foregoing guidelines, Tolentino’s gripe was unwarranted. He was not denied
procedural due process. The Division had required him to provide the names of his revisors
whose tasks included the raising of objections, the claiming votes for him, or the contesting of
the votes in favor of his opponent. He has neither alleged being deprived of this opportunity, nor
indicated any situation in which his revisors were denied access to the revision proceedings. He
could not also insist that the COMELEC did not consider his legal and factual arguments;
besides, he could still raise them in his memorandum should he chose to. During the revision
stage, he should raise all objections, present his evidence and witnesses, and file his
memorandum before the case would be submitted for resolution. Such manner of presenting his
side would fully meet the demands of due process, for, as the Court has explained the nature of
due process in Stayfast Philippines Corporation v. National Labor Relations Commission:41
The essence of due process is simply the opportunity to be heard, or as applied to administrative
proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of
the action or ruling complained of.
A formal or trial-type hearing is not at all times and in all instances essential. The requirements
are satisfied where the parties are afforded fair and reasonable opportunity to explain their side
of the controversy at hand. What is frowned upon is absolute lack of notice and hearing. xxx
A review of the records proves that the parties, including Tolentino, were afforded ample
opportunity to ventilate their respective claims, to raise their objections, to claim votes, and to
contest the votes of their opponents through their duly designated revisors.
G.R. Nos. 187966-68
Contrary to De Castro’s submission, the Division set the ground rule for the revision of the
contested ballots by laying down the procedure for the simultaneous revision of the contested
ballots for all the three election protests.
Paragraph 5 of the January 6, 2009 order distinctly stated that "the revision of ballots in the
above-entitled cases be conducted in such a way that when a ballot box is opened, its contents
shall be revised in all three (3) cases before proceeding to the next ballot box considering that the
same precincts are contested in all three (3) cases."42 That procedure was ideal under the
obtaining circumstances, given that the same precincts were involved in all the three cases. Also,
the procedure was the practical and most expeditious manner of recording the observations in the
minutes of the proceedings, the segregation according to vote per candidate, and the validation
and registration of all objections or contests on the votes and claims on the same. All objections
and claims of each party’s revisors would later on be collated on a "per case" basis and submitted
to the Chairperson of each Revision Committee to aid in the preparation of the revision report for
the precincts or clusters of precincts assigned to such committee.
We find no incompatibility between the order of January 6, 2009 and the order of June 2, 2009.
The latter order provided that the "Revision Committees will conduct the revision of the forty-
four (44) contested ballots now in the custody of the Senate Electoral Tribunal, per case and not
simultaneously. The normal procedure of revision shall be followed."43 The purpose of the latter
order was to preserve the distinction of each position, that is, by keeping the data for each of the
positions separate despite the process of data-gathering being done simultaneously for all three
positions.
It is noted that the three cases involved 44 ballot boxes in the custody of the SET and 72 ballot
boxes in the custody of the COMELEC, all concerning the several elective positions. The task of
the four Revision Committees entailed the preparation of per-precinct revision reports for each of
the three positions, the number of which would depend on how many precincts or clusters of
precincts were assigned to the committees. The only logical solution to the need for systematic
proceedings was to do the revisions on a per-case or per-position approach, closing the ballot box
only after all the data required, and the objections and claims relevant to each position had
already been recorded. Such a procedure would become significant especially during the stage of
the segregation of the votes per candidate, at which time the votes for each candidate would be
given to the opponent’s revisors who would then validate the ballots, or register objections, or
claim votes for the candidates they represented, or contest the votes of their principal’s
opponents.
In an election protest, the electoral tribunal has an imperative duty to promptly ascertain by all
means within its command the candidates the electorate have chosen. It bears stressing that in the
exercise of the plenitude of its powers to protect the integrity of the elections, the COMELEC
should not and must not be straitjacketed by procedural rules in resolving election disputes.44
Thus, the Division’s adoption of measures that especially respond to or address unique
situations, like these cases, was incidental to the COMELEC’s general authority to adopt all the
means to effect its powers and exercise its jurisdiction. Such adoption is even warranted under
Section 4 of the COMELEC Rules of Procedure:
Section 4. Means to Effect Jurisdiction. – All auxiliary writs, processes and other means
necessary to carry into effect its powers or jurisdiction may be employed by the Commission;
and if the procedure to be followed in the exercise of such power or jurisdiction is not
specifically provided for by law or these rules, any suitable process or proceeding may be
adopted.
The nature of election protests cases often makes the COMELEC face varied situations calling
for the exercise of its general authority to adopt means necessary to effect its powers and
jurisdiction. The COMELEC, in its performance of its duties, must be given a considerable
latitude in adopting means and methods that would insure the accomplishment of the great
objective for which it was created – to promote free, orderly, and honest elections. The choice of
the means by the COMELEC should not be interfered with, unless the means were clearly illegal
or the choice constituted grave abuse of discretion.45 To require a more stringent rule would
unduly handicap the COMELEC in the achievement of its mandate to expeditiously dispose of
election contests. Hence, a liberal construction of its rules should be conceded to the
COMELEC, for, as already held:
It has been frequently decided, and it may be stated as a general rule recognized by all courts,
that statutes providing for election contests are to be liberally construed to the end that the will of
the people in the choice of public officers may not be defeated by mere technical objections. An
election contest, unlike an ordinary action, is imbued with public interest since it involves not
only the adjudication of the private interests of rival candidates but also the paramount need of
dispelling the uncertainty which beclouds the real choice of the electorate with respect to who
shall discharge the prerogatives of the office within their gift. Moreover, it is neither fair nor just
to keep in office for an uncertain period one whose right to it is under suspicion. It is imperative
that his claim be immediately cleared not only for the benefit of the winner but for the sake of
public interest, which can only be achieved by brushing aside technicalities of procedure which
protract and delay the trial of an ordinary action. xxx.46
Moreover, the pleadings of Tolentino even showed that the ground rules and guidelines for the
revision of ballots were issued to the parties a day before the revision proceedings.47 Thus,
neither petitioner could validly complain about not having been duly informed of the manner of
revision, in light of the directive contained in paragraph 4 of the January 6, 2009 order that the
parties should be briefed on the ground rules for the revision of ballots before the
commencement of the revision.48
In fine, the Division did not commit any abuse of discretion, least of all grave, in its issuance of
the assailed orders. Its actuations relative to the conduct of the revision proceedings in the three
election protests were far from capricious or whimsical. The Division issued ground rules with
sufficient notice to the parties, who were thereby adequately shielded from partiality or
unfairness during the process of revision. The Division should instead be commended for
carrying out its mandate to expedite the disposition of the present election controversies.
WHEREFORE, we dismiss the petitions for lack of merit.
The Second Division of the Commission on Elections is directed to proceed with dispatch on the
revision of ballots in EPC Case No. 2007-07, EPC Case No. 2007-08, and EPC Case No. 2007-
09, and to resolve the election protests as soon as practicable.
This decision is immediately executory.
Costs of suit to be paid by the petitioners.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice


ANTONIO EDUARDO B. TERESITA J. LEONARDO DE

NACHURA CASTRO

(On official leave)

ROBERTO A. ABAD
Associate Justice
Associate Justice

JOSE CATRAL MENDOZA

Associate Justice
CERTIFICATION
REYNATO S. PUNO
Chief Justice
Footnotes
1
Rollo, G.R. Nos. 187958 and 187961-62, pp. 43-44.
2
Id., pp. 54-55.
3
Rollo, G.R. Nos. 187966-68, pp. 33-34.
4
Entitled Jocelyn Ricardo v. Mayor Abraham Tolentino.
5
Entitled Arnel Taruc v. Vice Mayor Celso de Castro.
6
Filed by respondents Marlene Catan, Maria Theresa Mendoza Costa, Fidel Rofols
Castillo, Dominador Bassi, Roberto Malabanan Hernandez, Nerissa Manzano, Leonidez
Maglabe Hernandez, Tagumpay Reyes, Maria Corazon Marquiacias and Elino Fajardo
against the proclaimed City Councilors or Members of the Sanggunian Panlungsod of
Tagaytay City.
7
Tolentino v. Commission on Elections, G.R. No. 183806-08, September 16, 2008, 565
SCRA 363.
8
9
10
Id., p. 182.
11
Id., pp. 183-186.
12
Id., p. 185.
13
Id., p. 188.
14
Id., pp. 193-196.
15
16
Id., pp. 242-245.
17
Id., pp. 43-44; underlining supplied for emphasis.
18
Id., pp. 54-55; underlining supplied for emphasis.
19
Id., pp. 56-59.
20
Rollo, G.R. Nos. 187966-68, pp. 59-67.
21
Id., pp. 33-34.
22
The omnibus motion and compliance was filed within the 5-day reglementary period
fixed under Section 2, Rule 19 of the COMELEC Rules of Procedure, and the petition for
certiorari assailing the June 2, 2009 order was filed on June 9, 2009, well within the 30
day period provided under Section 3, Rule 64 of the Rules of Court.
23
Rollo, G.R Nos. 187958 and 187961-62, pp. 280-301.
24
Id., pp. 305-306.
25
Id., pp. 307.
26
Id., pp. 326-328.
27
Rollo, G.R. Nos. 187966-68, p. 25.
28
29
Rollo, G.R. Nos. 187958 and 187961-62, p. 416.
30
G.R. No. 136966, July 5, 2000, 335 SCRA 172,177-178.
31
G.R. No. 188308, October 15, 2009.
32
Denso (Phils.) Inc. v. Intermediate Appellate Court, G.R. No L-75000, February 27,
1987, 148 SCRA 280; Romualdez v. Sandiganbayan (First Division), G.R. No. 105248,
May 16, 1995, 244 SCRA 152; Dizon v. Court of Appeals, G.R. No. 96296, June 18,
1992, 210 SCRA 107.
33
Section 11. Report of Committee on Revision. – The committee on revision of ballots
shall make a statement of the condition in which the ballot boxes and their contents were
found upon the opening of the same, and shall classify the ballots so examined and set
forth clearly any objection that may have been offered to each ballot in the report to be
submitted by them. Disputed ballots shall be numbered consecutively for purposes of
identification in the presence and under the direction of the committee chairman. After
examination, the ballots and other election documents shall be returned to their respective
boxes under lock but disputed ballots shall be placed in a separate envelope duly sealed
and signed by the members of the committee and then returned to the box. For purposes
of making said report, which shall be submitted in twelve (12) legible copies, only the
prescribed form prepared by the Commission shall be used.
34
G.R. Nos. 172741 and 168253, March 16, 2007, 518 SCRA 473, 476.
35
Rules of Procedure in Election Contests before the Courts involving Elective
Municipal and Barangay Officials.
36
37
38
Eriguel v. Commission on Elections, G.R. No. 190526, February 26, 2010.
39
69 Phil. 635 (1940).
40
No. L-29064, April 29, 1971, 38 SCRA 489, 492.
41
G.R. No. 81480, February 9, 1993, 218 SCRA 596, 601.
42
Rollo, G.R. Nos. 187966-68, p. 77.
43
Id., p. 33.
44
Pangandaman v.Commission on Elections, G.R. No. 134340, November 25, 1999, 319
SCRA 283.
45
Id.
46
Pahilan v. Tabalba, G.R. No. 110170, February 21, 1994, 230 SCRA 205, 212-213;
Punzalan v. Commission on Elections, G.R. No. 126669, April 27, 1998, 289 SCRA 702,
720; Bince, Jr. v. Commission on Elections, G.R. Nos. 111624-25, March 9, 1995, 242
SCRA 273, 286-287.
47
Rollo, G.R. Nos. 187958,187961-62, p. 285.
48
Rollo, G.R. Nos. 187966-68, p. 77.
SUPREME COURT
Manila
EN BANC
G.R. Nos. 179431-32 June 22, 2010
LUIS K. LOKIN, JR., as the second nominee of CITIZENS BATTLE AGAINST

CORRUPTION (CIBAC), Petitioner,
vs.
COMMISSION ON ELECTIONS and the HOUSE OF REPRESENTATIVES,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 180443
LUIS K. LOKIN, JR., Petitioner,

vs.
COMMISSION ON ELECTIONS (COMELEC), EMMANUEL JOEL J. VILLANUEVA,
CINCHONA C. GONZALES and ARMI JANE R. BORJE, Respondents.
DECISION
BERSAMIN, J.:
The principal question posed in these consolidated special civil actions for certiorari and
mandamus is whether the Commission on Elections (COMELEC) can issue implementing rules
and regulations (IRRs) that provide a ground for the substitution of a party-list nominee not
written in Republic Act (R.A.) No. 7941,1 otherwise known as the Party-List System Act, the law
that the COMELEC thereby implements.
Common Antecedents
The Citizens’ Battle Against Corruption (CIBAC) was one of the organized groups duly
registered under the party-list system of representation that manifested their intent to participate
in the May 14, 2007 synchronized national and local elections. Together with its manifestation of
intent to participate,2 CIBAC, through its president, Emmanuel Joel J. Villanueva, submitted a
list of five nominees from which its representatives would be chosen should CIBAC obtain the
required number of qualifying votes. The nominees, in the order that their names appeared in the
certificate of nomination dated March 29, 2007,3 were: (1) Emmanuel Joel J. Villanueva; (2)
herein petitioner Luis K. Lokin, Jr.; (3) Cinchona C. Cruz-Gonzales; (4) Sherwin Tugna; and (5)
Emil L. Galang. The nominees’ certificates of acceptance were attached to the certificate of
nomination filed by CIBAC. The list of nominees was later published in two newspapers of
general circulation, The Philippine Star News4 (sic) and The Philippine Daily Inquirer.5
Prior to the elections, however, CIBAC, still through Villanueva, filed a certificate of
nomination, substitution and amendment of the list of nominees dated May 7, 2007,6 whereby it
withdrew the nominations of Lokin, Tugna and Galang and substituted Armi Jane R. Borje as
one of the nominees. The amended list of nominees of CIBAC thus included: (1) Villanueva, (2)
Cruz-Gonzales, and (3) Borje.
Following the close of the polls, or on June 20, 2007, Villanueva sent a letter to COMELEC
Chairperson Benjamin Abalos,7 transmitting therewith the signed petitions of more than 81% of
the CIBAC members, in order to confirm the withdrawal of the nomination of Lokin, Tugna and
Galang and the substitution of Borje. In their petitions, the members of CIBAC averred that
Lokin and Tugna were not among the nominees presented and proclaimed by CIBAC in its
proclamation rally held in May 2007; and that Galang had signified his desire to focus on his
family life.
On June 26, 2007, CIBAC, supposedly through its counsel, filed with the COMELEC en banc
sitting as the National Board of Canvassers a motion seeking the proclamation of Lokin as its
second nominee.8 The right of CIBAC to a second seat as well as the right of Lokin to be thus
proclaimed were purportedly based on Party-List Canvass Report No. 26, which showed CIBAC
to have garnered a grand total of 744,674 votes. Using all relevant formulas, the motion asserted
that CIBAC was clearly entitled to a second seat and Lokin to a proclamation.
The motion was opposed by Villanueva and Cruz-Gonzales.
Notwithstanding Villanueva’s filing of the certificate of nomination, substitution and amendment

of the list of nominees and the petitions of more than 81% of CIBAC members, the COMELEC
failed to act on the matter, prompting Villanueva to file a petition to confirm the certificate of
nomination, substitution and amendment of the list of nominees of CIBAC on June 28, 2007.9
On July 6, 2007, the COMELEC issued Resolution No. 8219,10 whereby it resolved to set the
matter pertaining to the validity of the withdrawal of the nominations of Lokin, Tugna and
Galang and the substitution of Borje for proper disposition and hearing. The case was docketed
as E.M. No. 07-054.
In the meantime, the COMELEC en banc, sitting as the National Board of Canvassers, issued
National Board of Canvassers (NBC) Resolution No. 07-60 dated July 9, 200711 to partially
proclaim the following parties, organizations and coalitions participating under the Party-List
System as having won in the May 14, 2007 elections, namely: Buhay Hayaan Yumabong, Bayan
Muna, CIBAC, Gabriela Women's Party, Association of Philippine Electric Cooperatives,
Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards
Educational Reforms, Inc., Akbayan! Citizen's Action Party, Alagad, Luzon Farmers Party,
Cooperative-Natco Network Party, Anak Pawis, Alliance of Rural Concerns and Abono; and to
defer the proclamation of the nominees of the parties, organizations and coalitions with pending
disputes until final resolution of their respective cases.
The COMELEC en banc issued another resolution, NBC Resolution No. 07-72 dated July 18,
2007,12 proclaiming Buhay Hayaan Yumabong as entitled to 2 additional seats and Bayan Muna,
CIBAC, Gabriela Women's Party, and Association of Philippine Electric Cooperatives to an
additional seat each; and holding in abeyance the proclamation of the nominees of said parties,
organizations and coalitions with pending disputes until the final resolution of their respective
cases.
With the formal declaration that CIBAC was entitled to an additional seat, Ricardo de los Santos,
purportedly as secretary general of CIBAC, informed Roberto P. Nazareno, Secretary General of
the House of Representatives, of the promulgation of NBC Resolution No. 07-72 and requested
that Lokin be formally sworn in by Speaker Jose de Venecia, Jr. to enable him to assume office.
Nazareno replied, however, that the request of Delos Santos could not be granted because
COMELEC Law Director Alioden D. Dalaig had notified him of the pendency of E.M. 07-054.
On September 14, 2007, the COMELEC en banc resolved E.M. No. 07-05413 thuswise:
WHEREFORE, considering the above discussion, the Commission hereby approves the
withdrawal of the nomination of Atty. Luis K. Lokin, Sherwin N. Tugna and Emil Galang as
second, third and fourth nominees respectively and the substitution thereby with Atty. Cinchona
C. Cruz-Gonzales as second nominee and Atty. Armi Jane R. Borje as third nominee for the
party list CIBAC. The new order of CIBAC's nominees therefore shall be:
1. Emmanuel Joel J. Villanueva
2. Cinchona C. Cruz-Gonzales
3. Armi Jane R. Borje
SO ORDERED.
The COMELEC en banc explained that the actions of Villanueva in his capacity as the president
of CIBAC were presumed to be within the scope of his authority as such; that the president was
charged by Section 1 of Article IV of the CIBAC By-Laws to oversee and direct the corporate
activities, which included the act of submitting the party's manifestation of intent to participate in
the May 14, 2007 elections as well as its certificate of nominees; that from all indications,
Villanueva as the president of CIBAC had always been provided the leeway to act as the party's
representative and that his actions had always been considered as valid; that the act of
withdrawal, although done without any written Board approval, was accomplished with the
Board’s acquiescence or at least understanding; and that the intent of the party should be given
paramount consideration in the selection of the nominees.
As a result, the COMELEC en banc proclaimed Cruz-Gonzales as the official second nominee of
CIBAC.14 Cruz-Gonzales took her oath of office
as a Party-List Representative of CIBAC on September 17, 2007.15
Precís of the Consolidated Cases

In G.R. No. 179431 and G.R. No. 179432, Lokin seeks through mandamus to compel respondent
COMELEC to proclaim him as the official second nominee of CIBAC.
In G.R. No. 180443, Lokin assails Section 13 of Resolution No. 7804 promulgated on January
12, 2007;16 and the resolution dated September 14, 2007 issued in E.M. No. 07-054 (approving
CIBAC’s withdrawal of the nominations of Lokin, Tugna and Galang as CIBAC’s second, third
and fourth nominees, respectively, and the substitution by Cruz-Gonzales and Borje in their
stead, based on the right of CIBAC to change its nominees under Section 13 of Resolution No.
7804).17 He alleges that Section 13 of Resolution No. 7804 expanded Section 8 of R.A. No.
7941.18 the law that the COMELEC seeks to thereby implement.
In its comment, the COMELEC asserts that a petition for certiorari is an inappropriate recourse
in law due to the proclamation of Cruz-Gonzales as Representative and her assumption of that
office; that Lokin’s proper recourse was an electoral protest filed in the House of Representatives
Electoral Tribunal (HRET); and that, therefore, the Court has no jurisdiction over the matter
being raised by Lokin.
For its part, CIBAC posits that Lokin is guilty of forum shopping for filing a petition for
mandamus and a petition for certiorari, considering that both petitions ultimately seek to have
him proclaimed as the second nominee of CIBAC.
Issues
The issues are the following:
(a) Whether or not the Court has jurisdiction over the controversy;
(b) Whether or not Lokin is guilty of forum shopping;
(c) Whether or not Section 13 of Resolution No. 7804 is unconstitutional and violates the
Party-List System Act; and
(d) Whether or not the COMELEC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in approving the withdrawal of the nominees of CIBAC and
allowing the amendment of the list of nominees of CIBAC without any basis in fact or
law and after the close of the polls, and in ruling on matters that were intra-corporate in
nature.
Ruling
The petitions are granted.
A
The Court has jurisdiction over the case
The COMELEC posits that once the proclamation of the winning party-list organization has been
done and its nominee has assumed office, any question relating to the election, returns and
qualifications of the candidates to the House of Representatives falls under the jurisdiction of the
HRET pursuant to Section 17, Article VI of the 1987 Constitution. Thus, Lokin should raise the
question he poses herein either in an election protest or in a special civil action for quo warranto
in the HRET, not in a special civil action for certiorari in this Court.
We do not agree.
An election protest proposes to oust the winning candidate from office. It is strictly a contest
between the defeated and the winning candidates, based on the grounds of electoral frauds and
irregularities, to determine who between them has actually obtained the majority of the legal
votes cast and is entitled to hold the office. It can only be filed by a candidate who has duly filed
a certificate of candidacy and has been voted for in the preceding elections.
A special civil action for quo warranto refers to questions of disloyalty to the State, or of
ineligibility of the winning candidate. The objective of the action is to unseat the ineligible
person from the office, but not to install the petitioner in his place. Any voter may initiate the
action, which is, strictly speaking, not a contest where the parties strive for supremacy because
the petitioner will not be seated even if the respondent may be unseated.
The controversy involving Lokin is neither an election protest nor an action for quo warranto,
for it concerns a very peculiar situation in which Lokin is seeking to be seated as the second
nominee of CIBAC. Although an election protest may properly be available to one party-list
organization seeking to unseat another party-list organization to determine which between the
defeated and the winning party-list organizations actually obtained the majority of the legal
votes, Lokin’s case is not one in which a nominee of a particular party-list organization thereby
wants to unseat another nominee of the same party-list organization. Neither does an action for
quo warranto lie, considering that the case does not involve the ineligibility and disloyalty of
Cruz-Gonzales to the Republic of the Philippines, or some other cause of disqualification for her.
Lokin has correctly brought this special civil action for certiorari against the COMELEC to seek
the review of the September 14, 2007 resolution of the COMELEC in accordance with Section 7
of Article IX-A of the 1987 Constitution, notwithstanding the oath and assumption of office by
Cruz-Gonzales. The constitutional mandate is now implemented by Rule 64 of the 1997 Rules of
Civil Procedure, which provides for the review of the judgments, final orders or resolutions of
the COMELEC and the Commission on Audit. As Rule 64 states, the mode of review is by a
petition for certiorari in accordance with Rule 65 to be filed in the Supreme Court within a
limited period of 30 days. Undoubtedly, the Court has original and exclusive jurisdiction over
Lokin’s petitions for certiorari and for mandamus against the COMELEC.
B
Petitioner is not guilty of forum shopping
Forum shopping consists of the filing of multiple suits involving the same parties for the same
cause of action, either simultaneously or successively, for the purpose of obtaining a favorable
judgment. Thus, forum shopping may arise: (a) whenever as a result of an adverse decision in
one forum, a party seeks a favorable decision (other than by appeal or certiorari) in another; or
(b) if, after having filed a petition in the Supreme Court, a party files another petition in the
Court of Appeals, because he thereby deliberately splits appeals "in the hope that even as one
case in which a particular remedy is sought is dismissed, another case (offering a similar remedy)
would still be open"; or (c) where a party attempts to obtain a writ of preliminary injunction from
a court after failing to obtain the writ from another court.19
What is truly important to consider in determining whether forum shopping exists or not is the
vexation caused to the courts and the litigants by a party who accesses different courts and
administrative agencies to rule on the same or related causes or to grant the same or substantially
the same reliefs, in the process creating the possibility of conflicting decisions being rendered by
the different fora upon the same issue.20
The filing of identical petitions in different courts is prohibited, because such act constitutes
forum shopping, a malpractice that is proscribed and condemned as trifling with the courts and as
abusing their processes. Forum shopping is an improper conduct that degrades the administration
of justice.21
Nonetheless, the mere filing of several cases based on the same incident does not necessarily
constitute forum shopping. The test is whether the several actions filed involve the same
transactions and the same essential facts and circumstances.22 The actions must also raise
identical causes of action, subject matter, and issues.23 Elsewise stated, forum shopping exists
where the elements of litis pendentia are present, or where a final judgment in one case will
amount to res judicata in the other.24
Lokin has filed the petition for mandamus to compel the COMELEC to proclaim him as the
second nominee of CIBAC upon the issuance of NBC Resolution No. 07-72 (announcing
CIBAC’s entitlement to an additional seat in the House of Representatives), and to strike down
the provision in NBC Resolution No. 07-60 and NBC Resolution No. 07-72 holding in abeyance
"all proclamation of the nominees of concerned parties, organizations and coalitions with
pending disputes shall likewise be held in abeyance until final resolution of their respective
cases." He has insisted that the COMELEC had the ministerial duty to proclaim him due to his
being CIBAC’s second nominee; and that the COMELEC had no authority to exercise discretion
and to suspend or defer the proclamation of winning party-list organizations with pending
disputes.
On the other hand, Lokin has resorted to the petition for certiorari to assail the September 14,
2007 resolution of the COMELEC (approving the withdrawal of the nomination of Lokin, Tugna
and Galang and the substitution by Cruz-Gonzales as the second nominee and Borje as the third
nominee); and to challenge the validity of Section 13 of Resolution No. 7804, the COMELEC’s
basis for allowing CIBAC’s withdrawal of Lokin’s nomination.
Applying the test for forum shopping, the consecutive filing of the action for certiorari and the
action for mandamus did not violate the rule against forum shopping even if the actions involved
the same parties, because they were based on different causes of action and the reliefs they
sought were different.
C
Invalidity of Section 13 of Resolution No. 7804
The legislative power of the Government is vested exclusively in the Legislature in accordance
with the doctrine of separation of powers. As a general rule, the Legislature cannot surrender or
abdicate its legislative power, for doing so will be unconstitutional. Although the power to make
laws cannot be delegated by the Legislature to any other authority, a power that is not legislative
in character may be delegated.25
Under certain circumstances, the Legislature can delegate to executive officers and
administrative boards the authority to adopt and promulgate IRRs. To render such delegation
lawful, the Legislature must declare the policy of the law and fix the legal principles that are to
control in given cases. The Legislature should set a definite or primary standard to guide those
empowered to execute the law. For as long as the policy is laid down and a proper standard is
established by statute, there can be no unconstitutional delegation of legislative power when the
Legislature leaves to selected instrumentalities the duty of making subordinate rules within the
prescribed limits, although there is conferred upon the executive officer or administrative board a
large measure of discretion. There is a distinction between the delegation of power to make a law
and the conferment of an authority or a discretion to be exercised under and in pursuance of the
law, for the power to make laws necessarily involves a discretion as to what it shall be.26
The authority to make IRRs in order to carry out an express legislative purpose, or to effect the
operation and enforcement of a law is not a power exclusively legislative in character, but is
rather administrative in nature. The rules and regulations adopted and promulgated must not,
however, subvert or be contrary to existing statutes. The function of promulgating IRRs may be
legitimately exercised only for the purpose of carrying out the provisions of a law. The power of
administrative agencies is confined to implementing the law or putting it into effect. Corollary to
this is that administrative regulation cannot extend the law and amend a legislative enactment. It
is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere
administrative rule issued for its implementation. Indeed, administrative or executive acts shall
be valid only when they are not contrary to the laws or the Constitution.27
To be valid, therefore, the administrative IRRs must comply with the following requisites to be
valid:28
1. Its promulgation must be authorized by the Legislature;
2. It must be within the scope of the authority given by the Legislature;
3. It must be promulgated in accordance with the prescribed procedure; and
4. It must be reasonable.
The COMELEC is constitutionally mandated to enforce and administer all laws and regulations
relative to the conduct of an election, a plebiscite, an initiative, a referendum, and a recall.29 In
addition to the powers and functions conferred upon it by the Constitution, the COMELEC is
also charged to promulgate IRRs implementing the provisions of the Omnibus Election Code or
other laws that the COMELEC enforces and administers.30
The COMELEC issued Resolution No. 7804 pursuant to its powers under the Constitution, Batas
Pambansa Blg. 881, and the Party-List System Act.31 Hence, the COMELEC met the first
requisite.
The COMELEC also met the third requisite. There is no question that Resolution No. 7804
underwent the procedural necessities of publication and dissemination in accordance with the
procedure prescribed in the resolution itself.
Whether Section 13 of Resolution No. 7804 was valid or not is thus to be tested on the basis of
whether the second and fourth requisites were met. It is in this respect that the challenge of Lokin
against Section 13 succeeds.
As earlier said, the delegated authority must be properly exercised. This simply means that the
resulting IRRs must not be ultra vires as to be issued beyond the limits of the authority
conferred. It is basic that an administrative agency cannot amend an act of Congress,32 for
administrative IRRs are solely intended to carry out, not to supplant or to modify, the law. The
administrative agency issuing the IRRs may not enlarge, alter, or restrict the provisions of the
law it administers and enforces, and cannot engraft additional non-contradictory requirements
not contemplated by the Legislature.33
Section 8 of R.A. No. 7941 reads:
Section 8. Nomination of Party-List Representatives.-Each registered party, organization or

coalition shall submit to the COMELEC not later that forty-five (45) days before the election a
list of names, not less than five (5), from which party-list representatives shall be chosen in case
it obtains the required number of votes.
A person may be nominated in one (1) list only. Only persons who have given their consent in
writing may be named in the list. The list shall not include any candidate of any elective office or
a person who has lost his bid for an elective office in the immediately preceding election. No
change of names or alteration of the order of nominees shall be allowed after the same shall have
been submitted to the COMELEC except in cases where the nominee dies, or withdraws in
writing his nomination, becomes incapacitated in which case the name of the substitute nominee
shall be placed last in the list. Incumbent sectoral representatives in the House of Representatives
who are nominated in the party-list system shall not be considered resigned.
The provision is daylight clear. The Legislature thereby deprived the party-list organization of
the right to change its nominees or to alter the order of nominees once the list is submitted to the
COMELEC, except when: (a) the nominee dies; (b) the nominee withdraws in writing his
nomination; or (c) the nominee becomes incapacitated. The provision must be read literally
because its language is plain and free from ambiguity, and expresses a single, definite, and
sensible meaning. Such meaning is conclusively presumed to be the meaning that the Legislature
has intended to convey. Even where the courts should be convinced that the Legislature really
intended some other meaning, and even where the literal interpretation should defeat the very
purposes of the enactment, the explicit declaration of the Legislature is still the law, from which
the courts must not depart.34 When the law speaks in clear and categorical language, there is no
reason for interpretation or construction, but only for application.35 Accordingly, an
administrative agency tasked to implement a statute may not construe it by expanding its
meaning where its provisions are clear and unambiguous.36
The legislative intent to deprive the party-list organization of the right to change the nominees or
to alter the order of the nominees was also expressed during the deliberations of the Congress,
viz:
MR. LAGMAN: And again on Section 5, on the nomination of party list representatives, I do not
see any provision here which prohibits or for that matter allows the nominating party to change
the nominees or to alter the order of prioritization of names of nominees. Is the implication
correct that at any time after submission the names could still be changed or the listing altered?
MR. ABUEG: Mr. Speaker, that is a good issue brought out by the distinguished Gentleman
from Albay and perhaps a perfecting amendment may be introduced therein. The sponsoring
committee will gladly consider the same.
MR. LAGMAN: In other words, what I would like to see is that after the list is submitted to the
COMELEC officially, no more changes should be made in the names or in the order of listing.
MR. ABUEG: Mr. Speaker, there may be a situation wherein the name of a particular nominee
has been submitted to the Commission on Elections but before election day the nominee changed
his political party affiliation. The nominee is therefore no longer qualified to be included in the
party list and the political party has a perfect right to change the name of that nominee who
changed his political party affiliation.
MR. LAGMAN: Yes of course. In that particular case, the change can be effected but will be the
exception rather than the rule. Another exception most probably is the nominee dies, then there
has to be a change but any change for that matter should always be at the last part of the list so
that the prioritization made by the party will not be adversely affected.37
The usage of "No" in Section 8 – "No change of names or alteration of the order of nominees
shall be allowed after the same shall have been submitted to the COMELEC except in cases
where the nominee dies, or withdraws in writing his nomination, or becomes incapacitated, in
which case the name of the substitute nominee shall be placed last in the list" – renders Section 8
a negative law, and is indicative of the legislative intent to make the statute mandatory.
Prohibitive or negative words can rarely, if ever, be directory, for there is but one way to obey
the command "thou shall not," and that is to completely refrain from doing the forbidden act,38
subject to certain exceptions stated in the law itself, like in this case.
Section 8 does not unduly deprive the party-list organization of its right to choose its nominees,
but merely divests it of the right to change its nominees or to alter the order in the list of its
nominees’ names after submission of the list to the COMELEC.
The prohibition is not arbitrary or capricious; neither is it without reason on the part of
lawmakers. The COMELEC can rightly presume from the submission of the list that the list
reflects the true will of the party-list organization. The COMELEC will not concern itself with
whether or not the list contains the real intended nominees of the party-list organization, but will
only determine whether the nominees pass all the requirements prescribed by the law and
whether or not the nominees possess all the qualifications and none of the disqualifications.
Thereafter, the names of the nominees will be published in newspapers of general circulation.
Although the people vote for the party-list organization itself in a party-list system of election,
not for the individual nominees, they still have the right to know who the nominees of any
particular party-list organization are. The publication of the list of the party-list nominees in
newspapers of general circulation serves that right of the people, enabling the voters to make
intelligent and informed choices. In contrast, allowing the party-list organization to change its
nominees through withdrawal of their nominations, or to alter the order of the nominations after
the submission of the list of nominees circumvents the voters’ demand for transparency. The
lawmakers’ exclusion of such arbitrary withdrawal has eliminated the possibility of such
circumvention.
D
Exceptions in Section 8 of R.A. 7941 are exclusive
Section 8 of R.A. No. 7941 enumerates only three instances in which the party-list organization
can substitute another person in place of the nominee whose name has been submitted to the
COMELEC, namely: (a) when the nominee dies; (b) when the nominee withdraws in writing his
nomination; and (c) when the nominee becomes incapacitated.
The enumeration is exclusive, for, necessarily, the general rule applies to all cases not falling
under any of the three exceptions.
When the statute itself enumerates the exceptions to the application of the general rule, the
exceptions are strictly but reasonably construed. The exceptions extend only as far as their
language fairly warrants, and all doubts should be resolved in favor of the general provision
rather than the exceptions. Where the general rule is established by a statute with exceptions,
none but the enacting authority can curtail the former. Not even the courts may add to the latter
by implication, and it is a rule that an express exception excludes all others, although it is always
proper in determining the applicability of the rule to inquire whether, in a particular case, it
accords with reason and justice.391avvphi1
The appropriate and natural office of the exception is to exempt something from the scope of the
general words of a statute, which is otherwise within the scope and meaning of such general
words. Consequently, the existence of an exception in a statute clarifies the intent that the statute
shall apply to all cases not excepted. Exceptions are subject to the rule of strict construction;
hence, any doubt will be resolved in favor of the general provision and against the exception.
Indeed, the liberal construction of a statute will seem to require in many circumstances that the
exception, by which the operation of the statute is limited or abridged, should receive a restricted
construction.
E
Section 13 of Resolution No. 7804 expanded
the exceptions under Section 8 of R.A. No. 7941
Section 13 of Resolution No. 7804 states:
Section 13. Substitution of nominees. – A party-list nominee may be substituted only when he
dies, or his nomination is withdrawn by the party, or he becomes incapacitated to continue
as such, or he withdraws his acceptance to a nomination. In any of these cases, the name of
the substitute nominee shall be placed last in the list of nominees.
No substitution shall be allowed by reason of withdrawal after the polls.
Unlike Section 8 of R.A. No. 7941, the foregoing regulation provides four instances, the fourth
being when the "nomination is withdrawn by the party."
Lokin insists that the COMELEC gravely abused its discretion in expanding to four the three
statutory grounds for substituting a nominee.
We agree with Lokin.
The COMELEC, despite its role as the implementing arm of the Government in the enforcement
and administration of all laws and regulations relative to the conduct of an election,40 has neither
the authority nor the license to expand, extend, or add anything to the law it seeks to implement
thereby. The IRRs the COMELEC issues for that purpose should always accord with the law to
be implemented, and should not override, supplant, or modify the law. It is basic that the IRRs
should remain consistent with the law they intend to carry out.41
Indeed, administrative IRRs adopted by a particular department of the Government under

legislative authority must be in harmony with the provisions of the law, and should be for the
sole purpose of carrying the law’s general provisions into effect. The law itself cannot be
expanded by such IRRs, because an administrative agency cannot amend an act of Congress.42
The COMELEC explains that Section 13 of Resolution No. 7804 has added nothing to Section 8
of R.A. No. 7941,43 because it has merely reworded and rephrased the statutory provision’s
phraseology.
The explanation does not persuade.
To reword means to alter the wording of or to restate in other words; to rephrase is to phrase
anew or in a new form.44 Both terms signify that the meaning of the original word or phrase is
not altered.
However, the COMELEC did not merely reword or rephrase the text of Section 8 of R.A. No.
7941, because it established an entirely new ground not found in the text of the provision. The
new ground granted to the party-list organization the unilateral right to withdraw its nomination
already submitted to the COMELEC, which Section 8 of R.A. No. 7941 did not allow to be done.
Neither was the grant of the unilateral right contemplated by the drafters of the law, who
precisely denied the right to withdraw the nomination (as the quoted record of the deliberations
of the House of Representatives has indicated). The grant thus conflicted with the statutory intent
to save the nominee from falling under the whim of the party-list organization once his name has
been submitted to the COMELEC, and to spare the electorate from the capriciousness of the
party-list organizations.
We further note that the new ground would not secure the object of R.A. No. 7941 of developing
and guaranteeing a full, free and open party-list electoral system. The success of the system
could only be ensured by avoiding any arbitrariness on the part of the party-list organizations, by
seeing to the transparency of the system, and by guaranteeing that the electorate would be
afforded the chance of making intelligent and informed choices of their party-list representatives.
The insertion of the new ground was invalid. An axiom in administrative law postulates that
administrative authorities should not act arbitrarily and capriciously in the issuance of their IRRs,
but must ensure that their IRRs are reasonable and fairly adapted to secure the end in view. If the
IRRs are shown to bear no reasonable relation to the purposes for which they were authorized to
be issued, they must be held to be invalid and should be struck down.45
F
Effect of partial nullity of Section 13 of Resolution No. 7804
An IRR adopted pursuant to the law is itself law.46 In case of conflict between the law and the
IRR, the law prevails. There can be no question that an IRR or any of its parts not adopted
pursuant to the law is no law at all and has neither the force nor the effect of law.47 The invalid
rule, regulation, or part thereof cannot be a valid source of any right, obligation, or power.
Considering that Section 13 of Resolution No. 7804 – to the extent that it allows the party-list
organization to withdraw its nomination already submitted to the COMELEC – was invalid,
CIBAC’s withdrawal of its nomination of Lokin and the others and its substitution of them with
new nominees were also invalid and ineffectual. It is clear enough that any substitution of Lokin
and the others could only be for any of the grounds expressly stated in Section 8 of R.A. No.
7941. Resultantly, the COMELEC’s approval of CIBAC’s petition of withdrawal of the
nominations and its recognition of CIBAC’s substitution, both through its assailed September 14,
2007 resolution, should be struck down for lack of legal basis. Thereby, the COMELEC acted
without jurisdiction, having relied on the invalidly issued Section 13 of Resolution No. 7804 to
support its action.
WHEREFORE, we grant the petitions for certiorari and mandamus.

We declare Section 13 of Resolution No. 7804 invalid and of no effect to the extent that it
authorizes a party-list organization to withdraw its nomination of a nominee once it has
submitted the nomination to the Commission on Elections.
Accordingly, we annul and set aside:
(a) The resolution dated September 14, 2007 issued in E. M. No. 07-054 approving
Citizens’ Battle Against Corruption’s withdrawal of the nominations of Luis K. Lokin,
Jr., Sherwin N. Tugna, and Emil Galang as its second, third, and fourth nominees,
respectively, and ordering their substitution by Cinchona C. Cruz-Gonzales as second
nominee and Armi Jane R. Borje as third nominee; and
(b) The proclamation by the Commission on Elections of Cinchona C. Cruz-Gonzales as

a Party-List Representative representing Citizens’ Battle Against Corruption in the House
of Representatives.
We order the Commission on Elections to forthwith proclaim petitioner Luis K. Lokin, Jr. as a
Party-List Representative representing Citizens’ Battle Against Corruption in the House of
Representatives.
We make no pronouncements on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO CONCHITA CARPIO MORALES

ANTONIO EDUARDO B.
NACHURA
Associate Justice
Associate Justice
TERESITA J. LEONARDO DE
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

(On Leave)
JOSE PORTUGAL PEREZ
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice
CERTIFICATION
RENATO C. CORONA
Chief Justice
Footnotes
1
Entitled An Act Providing for the Election of Party-List Representatives through the
Party-List System, and Appropriating Funds Therefor.
2
Rollo, G.R. No. 179431 and No. 179432, pp. 74-75.
3
Id., p. 76.
4
Id., p. 90.
5
Id., p. 89.
6
Id., pp. 91-92.
7
Id., pp. 93-196.
8
Id., pp. 51-55.
9
Id., pp. 197-200.
10
Id., pp. 68-71.
11
Id., pp. 37-42.
12
Id., pp. 43-47.
13
Id., pp. 243-260.
14
Id., p. 324.
15
Id., p. 325.
16
Entitled Rules and Regulations Governing the Filing of Manifestation of Intent to
Participate, and Submission of Names of Nominees Under the Party-List System of
Representation, in Connection with the 14 May 2007 Synchronized National and Local
Elections.
17
Rollo, G.R. No. 180443, pp. 65-82.
18
Entitled An Act Providing for the Election of Party-List Representatives through the
Party-List System, and Appropriating Funds Therefor.
19
Executive Secretary v. Gordon, G.R. No. 134171, November 18, 1998, 298 SCRA 736.
20
First Philippine International Bank v. Court of Appeals, G.R. No. 115849, January 24,
1996, 252 SCRA 259.
21
Bugnay Construction and Development Corporation v. Laron, G.R. No. 79983, August
10, 1989, 176 SCRA 240.
22
Paredes, Jr. v. Sandiganbayan, Second Division, G.R. No. 108251, January 31, 1996,
252 SCRA 641.
23
International Container Terminal Services, Inc. v. Court of Appeals, G.R. No. 116910,
October 18, 1995, 249 SCRA 389.
24
Buan v. Lopez, Jr., G.R. No. L-75349, October 13, 1986, 145 SCRA 34.
25
Crawford, Earl. T., The Construction of Statutes, Thomas Law Book Company, St.
Louis, Missouri, pp. 24-25 (1940).
26
Id., pp. 29-30.
27
Metropolitan Bank and Trust Company, Inc. v. National Wages and Productivity
Commission, G.R. No. 144322, February 6, 2007, 514 SCRA 346, 349-350.
28
Cruz, Philippine Administrative Law, pp. 50-51 (2007).
29
1987 Constitution, Article IX-C, Section 2(1).
30
Batas Pambansa Bilang 881, Article VII, Section 52(c).
31
The Party-List System Act (R.A. No. 7941) provides:
Section 18. Rules and Regulations.- The COMELEC shall promulgate the necessary rules
and regulations as may be necessary to carry out the purposes of this act.
32
Boie-Takeda Chemicals, Inc. v. De la Serna, G.R. Nos. 92174 and 102552, December
10, 1993, 228 SCRA 329.
33
Pilipinas Kao, Inc. v. Court of Appeals, G.R. No. 105014, December 18, 2001, 372
SCRA 548, 551-552; Commissioner of Internal Revenue v. Central Luzon Drug
Corporation, G.R. No. 159647, April 15, 2005, 456 SCRA 414, 441.
34
Black, Construction and Interpretation of Laws, 2nd Edition, p. 45.
35
Land Bank of the Philippines v. Court of Appeals, G.R. Nos. 118712 and 118745, July
5, 1996, 258 SCRA 404.
36
Agpalo, Statutory Construction, p. 65 (5th ed., 2003).
37
Record of the Deliberations of the House of Representatives, 3rd Regular Session
(1994-1995), Volume III, November 22, 1994, p. 336.
38
McGee v. Republic, 94 Phil. 820 (1954).
39
Salaysay v. Castro, 98 Phil. 364 (1956).
40
Section 2(1) of Article IX-C of the 1987 Constitution.
41
Romulo, Mabanta, Buenaventura, Sayoc and De los Angeles v. Home Development
Mutual Fund, G.R. No. 131082, June 19, 2000, 333 SCRA 777.
42
Cebu Oxygen & Acetylene Co., Inc. v. Drilon, G.R. No. 82849, August 2, 1989, 176
SCRA 24, 29.
43
Rollo, p. 509.
44
Webster's Third New International Dictionary.
45
Lupangco v. Court of Appeals, No. L-77372, April 29, 1988, 160 SCRA 848, 858-859.
46
Banco Filipino Savings and Mortgage Bank v. Navarro, No. L-46591, July 28, 1987,
152 SCRA 346.
47
Commissioner of Internal Revenue v. Central Luzon Drug Corporation, supra, note 33.
SUPREME COURT
Manila
EN BANC
G.R. No. 158708 August 10, 2010
JUSTINA MANIEBO, Petitioner,

vs.
HON. COURT OF APPEALS and THE CIVIL SERVICE COMMISSION, Respondents.
DECISION
BERSAMIN, J.:
We consider herein the last plea for clemency of the petitioner herein, an employee of a local
government unit, who was dismissed from the service after her dishonesty in presenting herself
as holding a civil service eligibility was discovered. The Civil Service Commission (CSC) meted
the ultimate penalty on her. The Court of Appeals (CA) found her petition for review defective,
and dismissed it, in effect upholding the CSC’s action.
By petition for review on certiorari, therefore, the petitioner appeals the resolutions dated
September 5, 2002, January 8, 2003, and June 5, 2003,1 all issued by the Court of Appeals (CA)
in CA-GR SP No. 72555 entitled Justina Maniebo v. Civil Service Commission.
Antecedents2
On July 1, 1994, the Mayor of the Municipality of Puerto Galera, Oriental Mindoro issued a
promotional permanent appointment to the petitioner as Cashier III in the Office of the
Municipal Treasurer because she appeared to possess the qualifications for the position,
including the Career Service (Professional) Eligibility appearing in line 18 of her Personal Data
Sheet showing her to have passed with a rating of 74.01% the Career Service (Professional)
examination given in Calapan, Oriental Mindoro on July 17, 1983.
When the report of her rating was verified against the Masterlist of Eligibles, however, it was
discovered that the petitioner had actually failed in the examination for obtaining a rating of only
60%.
The CSC Regional Office (CSCRO) No. IV subsequently held a preliminary investigation that
resulted in the finding that a prima facie case of falsification existed against the petitioner.
Accordingly, on October 28, 1997, CSCRO No. IV formally charged her with possession of
spurious report of rating, falsification, grave misconduct, and dishonesty.
On November 7, 1997, the petitioner filed her answer, which CSCRO No. IV considered
unsatisfactory. Thus, CSCRO set the case for hearing.
During the November 22, 1999 hearing, the Hearing Officer allowed the petitioner to comment
verbally or to file her objection to the evidence formally offered against her. Instead, her counsel
requested the Hearing Officer to mark her supporting documents as her evidence, and for her to
be allowed to testify for herself.
In her direct testimony, the petitioner denied knowledge of the falsified nature of her Career
Service (Professional) eligibility rating. She asserted that the rating had come from the CSC
through the mails. She insisted that she did not on any occasion approach any personnel of the
CSC, or anybody else connected with the CSC in order to procure the passing grade of 74.01%.
CSCRO No. IV then rendered its decision on December 16, 1999, viz:
WHEREFORE, this Office finds respondent Justina Maniebo, Cashier III, Office of the
Municipal Treasurer, Municipal Government of Puerto Galera, Oriental Mindoro, guilty of
Possession of Spurious Report of Rating, Falsification, Grave Misconduct. Accordingly,
respondent Maniebo is hereby meted the penalty of DISMISSAL from the service.3
On February 4, 2000, the petitioner appealed to the CSC,4 which affirmed the decision of
CSCRO No. IV through its Resolution No. 02-0433 dated March 20, 2002,5 disposing thus:
WHEREFORE, premises considered, the appeal of Justina M. Maniebo is hereby DISMISSED

for lack of merit. Accordingly, the Decision of the Civil Service Commission Regional Office
No. IV dated December 16, 1999 is AFFIRMED.
On August 20, 2002, the petitioner sought reconsideration, but the CSC denied her motion
through Resolution No. 02-1028.6
The petitioner next appealed to the CA.7
Ruling of the CA
In the CA, the petitioner raised the following issues,8 to wit:
a) Whether the CSC committed grave error in not considering good faith on the part of
the petitioner in the determination of the appealed decision; and
b) Whether the CSC was correct in imposing the penalty of dismissal in view of the
circumstances obtaining in the case.
She attached to the petition for review the following annexes:
a) Certified true copy of CSC Resolution No. 02-1028 dated August 5, 2002 denying the
petitioner's motion for reconsideration (Annex A);9
b) Original copy of the notice of appeal dated August 23, 2002 filed in the CSC (Annex
B);10
c) Photocopy of the petitioner’s appeal dated January 31, 2000 to the CSC (Annex C);11
d) The petitioner’s affidavit of merit dated August 2002 (Annex D).12
In its assailed resolution dated September 5, 2002,13 the CA dismissed the petition for review due
to the petitioner’s failure to accompany it with the requisite certified true copies of the material
portions of the record, stating:
For failure to accompany the petition for review with the requisite certified true copies of the
material portions of the record referred to therein, i.e., the preliminary investigation and charge
for possession of spurious report of rating, the answer, the decision dated December 16, 1999 of
Civil Service Commission Regional Office No. IV, Civil Service Commission Resolution No.
02-0433 dated March 20, 2002, and other supporting papers and the evidences submitted, the
Court Resolved to DENY DUE COURSE and, consequently, to DISMISS the petition pursuant
to Section 7, Rule 43 of the 1997 Rules of Civil Procedure.
SO ORDERED.
The petitioner filed a motion for reconsideration,14 in which her counsel, Atty. Al Harith D. Sali,
even undertook to submit the required certified copies of the material portions within ten days
from October 23, 2002. She explained in her motion that her counsel had failed to submit the
required certified copies, due to her failure to turn over said copies to her counsel because of the
distance between her home in Puerto Galera, Oriental Mindoro and the office of her counsel in
Fairview, Quezon City.
Following its receipt of the comment of the Office of the Solicitor General on December 12,
2002,15 the CA denied the motion for reconsideration in the assailed resolution dated January 8,
2003,16 viz:
Acting on the motion of the petitioner for a reconsideration of the Resolution dated September 5,
2002, which dismissed the petition for failure to append thereto the requisite certified true copies
of the material portions of the record referred to therein, as well as the Comment interposed
thereto filed by the Office of the Solicitor General, and considering that the aforesaid motion
failed to allege the date of receipt of a copy of the assailed Resolution to determine the timeliness
of the filing of the said motion and no efforts (sic) was exerted to rectify or supply the procedural
errors the petition suffered even within the requested period of ten (10) days, the Court Resolved
to DENY the aforesaid motion for reconsideration.
SO ORDERED.
On February 5, 2003, the petitioner filed a so-called motion for reconsideration that was signed
by another lawyer, Atty. Joventino V. Diamante (allegedly as collaborating counsel), although
Atty. Al Harith D. Sali remained as counsel.17
In its third assailed resolution dated June 5, 2003,18 the CA denied the petitioner’s motion for
reconsideration, which was in reality as second motion for reconsideration that was prohibited
under Rule 52, Sec. 2 of the Rules of Court.
Hence, this appeal by petition for review on certiorari.
Issues
The petitioner claims:19
I.
WHETHER THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN

DISMISSING THE PETITIONER'S PETITION FOR REVIEW FOR FAILURE TO
ATTACH CERTIFIED COPY OF THE ANNEXES WHEN THE RULES AND
JURISPRUDENCE DO NOT REQUIRE THAT ALL ANNEXES ATTACHED TO THE
PETITION SHOULD BE CERTIFIED.
II.
WHETHER THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION

BASED ON ALLEGED TECHNICALITY WHICH WAS NOT SANCTIONED BY
JURISPRUDENCE.
Ruling
The petition has no merit.
The petitioner argues that her submission of a certified true copy of CSC Resolution 02-1028 in
her petition before the CA constituted a substantial compliance with Section 6, Rule 43 of the
Rules of Court. She averred that rules of procedure should be liberally construed to afford
litigants the opportunity to prove their claims and prevent a denial of justice due to legal
technicalities; that she had already lost her job due to the immediate execution of the decision
pending appeal, that to require her to secure certified true copies of all the annexes to the petition
would be too burdensome for her and would contravene the constitutionally guaranteed free
access to the courts and quasi-judicial bodies and adequate legal assistance; and that it was
already settled that under Section 6, Rule 43 of the Rules of Court, only the copies of the assailed
judgments or final orders of the lower courts needed to be certified.20 She insisted that the
dismissal of her appeal due to technicalities would constitute a deprivation of property without
due process of law because what was at stake herein was her right to employment.
In its comment,21 the CSC insisted that the CA justifiably denied due course to the petition,
considering that Section 7, Rule 43 of the Rules of Court expressly stated that the failure of the
petitioner to file the required certified true copies of the material portions of the record referred
to in the petition was sufficient ground for its dismissal; and that the subsequent motions for
reconsideration were also rightly denied because the petitioner exerted no effort to furnish the
required certified copies within the requested period of ten days.
The petitioner’s plea for liberality is undeserving of acceptance.
The CA did not commit any error, least of all a reversible one. Its dismissal was founded on the
correct application of the applicable rule. Indeed, Section 6, Rule 43 of the Rules of Court
expressly lists down the pleadings and other matters that a petition for review should contain,
thus:
Section 6. Contents of the petition. — The petition for review shall (a) state the full names of the
parties to the case, without impleading the court or agencies either as petitioners or respondents;
(b) contain a concise statement of the facts and issues involved and the grounds relied upon for
the review; (c) be accompanied by a clearly legible duplicate original or a certified true copy of
the award, judgment, final order or resolution appealed from, together with certified true copies
of such material portions of the record referred to therein and other supporting papers; and (d)
contain a sworn certification against forum shopping as provided in the last paragraph of section
2, Rule 42. The petition shall state the specific material dates showing that it was filed within the
period fixed herein. (2a)
The rule clearly requires the petition for review to be accompanied by "a clearly legible duplicate
original or a certified true copy of the award, judgment, final order or resolution appealed from,
together with certified true copies of such material portions of the record referred to therein and
other supporting papers." The requirement is intended to immediately enable the CA to
determine whether to give due course to the appeal or not by having all the material necessary to
make such determination before it. This is because an appeal under Rule 43 is a discretionary
mode of appeal, which the CA may either dismiss if it finds the petition to be patently without
merit, or prosecuted manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration; or may process by requiring the respondent to file a
comment on the petition, not a motion to dismiss, within 10 days from notice.22
The petitioner was not entitled to a liberal construction of the rules of procedure. Although her
petition cited decisions of the Court declaring that only the copies of the decisions or final orders
assailed on appeal needed to be certified,23 it is acknowledged even in the cited decisions of the
Court that there should at least be a substantial compliance with the rules. She should not forget
that her petition for review in the CA was essentially assailing not only CSC Resolution 02-1028
(denying her motion for reconsideration) but also CSC Resolution No. 02-0433 (the very
decision of the CSC finding her guilty of possession of the spurious report of rating, falsification,
grave misconduct, and dishonesty, and imposing the penalty of dismissal from the service). In
Heirs of Generoso A. Juaban v. Bancale,24 where only the order denying the respondents’ motion
for reconsideration was alleged as the subject of the appeal, the Court went beyond the literal
content of respondents’ notice of appeal and held that the appeal should be construed to include
the final order that the respondents were seeking to be reconsidered when they filed their motion
for reconsideration, because such approach was more in accord with the intent of the parties.
Considering that the petitioner’s appeal also assailed CSC Resolution No. 02-0433, she should
have furnished the CA with a certified true copy of that resolution.
With respect to the other supporting documents of the petition as set forth in Section 6, Rule 43,
their legible copies should have been attached to the petition or to the motion for reconsideration
filed against the resolution dismissing the petition. However, she did not even substantially
comply with the requirement. Making her non-compliance worse was her reneging on her own
express undertaking to the CA to submit the omitted documents within the 10-day period she had
prayed for in her first motion for reconsideration by not furnishing the required supporting
documents, or even the plain legible copies thereof from the time she filed her motion for
reconsideration on October 23, 2002 until its resolution on January 8, 2003. Neither did she
render any explanation for her failure to honor her undertaking. It was only when she filed the
petition in this Court that she explained her failure to submit the required documents to the CA to
be due to her financial constraints and the distance between her residence and the office of her
counsel.
Also, the petitioner’s motion for reconsideration did not allege the date when she had received a
copy of the resolution. Her omission to allege did not escape the attention of the CA, which cited
it in the resolution dated January 8, 2003 as a ground for denying the motion for reconsideration.
That detail was necessary to determine the timeliness of the filing of the motion for
reconsideration. Hence, the CA committed no reversible error in denying her first motion for
reconsideration.
The petitioner next filed a second motion for reconsideration after the issuance of the resolution
dated January 8, 2003. The CA regarded her doing so as a blatant contravention of the Rules of
Court. Indeed, her act directly violated Section 4, Rule 43, and Section 2, Rule 52, both of the
Rules of Court, viz:
Section 4. Period of appeal—The appeal shall be taken within fifteen (15) days from notice of
the award, judgment, final order or resolution, or from the date of its last publication, if
publication is required by law for its effectivity, or of the denial of petitioner’s motion for new
trial or reconsideration duly filed in accordance with the governing law of the court or agency a
quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the
payment of the full amount of the docket fee before the expiration of the reglementary period,
the Court of Appeals may grant an additional period of fifteen (15) days only within which to file
the petition for review. No further extension shall be granted except for the most compelling
reason and in no case to exceed fifteen (15) days.
Section 2. Second motion for reconsideration. — No second motion for reconsideration of a

judgment or final resolution by the same party shall be entertained.
Nonetheless, we point out that even in her prohibited second motion for reconsideration, the
petitioner did not tender any explanation for her failure to make good her undertaking to furnish
to the CA the required certified or legible copies of the material portions of the record. Instead,
she contented herself with merely reiterating the grounds previously used in her first motion for
reconsideration, adding only that any further documents needed by the CA could be made
available once the records of the case were transmitted by the CSC to the CA, as provided in
Section 11, Rule 43 of the Rules of Court.
Contrary to the petitioner’s position, the transmittal of the records was not mandatory but only
discretionary upon the CA.25 Section 11, Rule 43 of the Rules of Court provides:
Section 11. Transmittal of record.–Within fifteen (15) days from notice that the petition has been
given due course, the Court of Appeals may require the court or agency concerned to transmit
the original or a legible certified true copy of the entire record of the proceeding under review.
The record to be transmitted may be abridged by agreement of all parties to the proceeding. The
Court of Appeals may require or permit subsequent correction of or addition to the record.
Evidently, the petitioner repeatedly disregarded the rules too many times to merit any tolerance
by the Court, thereby exhibiting a deplorable tendency to trivialize the rules of procedure. Yet,
such rules were not to be belittled or dismissed simply because their non-observance might have
resulted in prejudicing a party’s substantive rights.26 The bare invocation of substantial justice
was not a magic wand that would compel the suspension of the rules of procedure. Of necessity,
the reviewing court had also to assess whether the appeal was substantially meritorious on its
face, or not, for only after such finding could the review court ease the often stringent rules of
procedure.27 Otherwise, the rules of procedure would be reduced to mere trifles.
B.
The petitioner claims that she relied in good faith on the rating she had received through the
mails. She denies being the author of the forged certificate. She pleads that with her government
service since 1981 and her very satisfactory performance (borne out by the series of promotional
appointments from the position of Accounting Clerk to Cashier III), she would never deliberately
misrepresent to the CSC that she had passed the Career Service Examination, because she knew
that the CSC could verify her eligibility rating at any time.
Although the Court is not called upon to rule on the foregoing matters in view of its finding that
the CA’s assailed dismissal of the petition for review was based on the correct application of the
pertinent provisions of the Rules of Court, it is nonetheless not amiss but reasonable to dwell on
such matters if only to establish that the positions taken by the petitioner do not advance her
cause at all and save the day for her.
It is not disputed that the petitioner’s statement in her Personal Data Sheet dated June 24, 1994
that she had passed the July 17, 1983 Career Service (Professional) Examination given in
Calapan, Oriental Mindoro with a rating of 74.01% was contrary to her actual rating of 60%
shown in the Masterlist of Eligibles of the CSC. Her defense of good faith was weak and
untrustworthy. Although she did not need to prove her good faith, it being presumed unless
persuasive evidence to the contrary is adduced,28 the presumption did not apply to her in the face
of a showing of the genuineness of the entries made in official records,29 like the Masterlist of
Eligibles. Accordingly, she should have presented concrete evidence to prove that the spurious
certificate of rating had been only mailed to her.
In Civil Service Commission v. Cayobit,30 we ruled that as between a government employee’s
self serving claim that she passed the Civil Service Examination, and his actual score appearing
in the Masterlist of Eligibles, the latter must prevail. We observed there that:
The bare testimony of respondent that she has nothing to do with forging the certificate as she
actually just received it by mail in her residential address deserves scant belief. We cannot accept
her simplistic claim that she used the certificate under the false impression that it was genuine.
The three witnesses and the various documents she presented cannot exculpate her. The
witnesses, in essence, merely testified that they received the certificate of eligibility in question
from respondent. Their belief that she was eligible was based on their reliance on the certificate.
Apropos is the following finding of petitioner:
The testimonies of the three (3) abovementioned witnesses failed to rebut the fact that Cayobit
did not pass the examination and does not have an eligibility. Respondent also failed to prove
that she had no participation in the procurement of eligibility. Hence it cannot be presumed that
Cayobit used the fake eligibility in good faith.
In that regard, the petitioner could have easily presented a certification from the postmaster
concerned in order to establish that she had received the spurious report of rating by mail. Yet,
she did not, and, instead, she was content with making the bare denial of having any part in
procuring the false document; and with claiming that the report had innocently landed on her
doorstep. She was guilty of procuring the document, because she had produced and relied on it.
Without her satisfactory explanation, her being in possession of the forged document, or her
having used it warranted the presumption of her being herself the forger or the person who had
caused the forgery.31
C.
The petitioner contends that even assuming that notwithstanding her lack of any civil service
eligibility upon her entry into the Civil Service, she could still be deemed to have acquired
eligibility by operation of law under the terms of Republic Act No. 6850,32 a law granting civil
service eligibility to employees efficiently serving the Government for at least seven years; that
she was already a civil service eligible as of February 8, 1990, the date of approval of the law,
and was no longer dismissible from the civil service by then; and that any defect in her
appointment as a permanent government employee was cured by her acquisition of eligibility in
1990.
The petitioner’s contention has no basis.
Sections 1 and 2 of Republic Act No. 6850 state:
Section 1. All government employees as of the approval of this Act who are holding career civil
service positions appointed under provisional or temporary status who have rendered at least a
total of seven (7) years of efficient service may be granted the civil service eligibility that will
qualify them for permanent appointment to their permanent positions.
The Civil Service Commission shall formulate performance evaluation standards in order to
determine those temporary employees who are qualified to avail themselves of the privilege
granted under this Act.
The civil service eligibility herein granted may apply to such other positions as the Civil Service
Commission may deem appropriate.
Section 2. The Civil Service Commission shall promulgate the rules and regulations to
implement this act consistent with the merit and fitness principle within ninety (90) days after its
effectivity.
These legal provisions show that not every temporary or provisional employee is automatically
deemed to be a permanent employee after rendering at least seven years of service in the
Government. The CSC still needs to evaluate whether the employee is qualified to avail himself
or herself of the privilege granted by the statute. Moreover, that an appointee obtains a civil
service eligibility later on does not ipso facto convert his temporary appointment into a
permanent one.ten.lihpwal A new appointment is still required, because a permanent
appointment is not a continuation of the temporary appointment; the two are distinct acts of the
appointing authority.33 As held in Maturan v. Maglana,34 a permanent appointment implies the
holding of a civil service eligibility on the part of the appointee, unless the position involved
requires no such eligibility. Where the appointee does not possess a civil service eligibility, the
appointment is considered temporary. The subsequent acquisition of the required eligibility will
not make the temporary appointment regular or permanent; a new appointment is needed.
Accordingly, any temporary employee who has served for the required duration of seven years
must first be found by the CSC to continuously possess the minimum qualifications for holding
the position, except the required eligibility, before he or she may be granted civil service
eligibility. Among the minimum qualifications is the continuous observance of the Code of
Conduct and Ethical Standards for Public Officials and Employees.351avvphi1
The petitioner failed to comply with this necessary minimum qualification. She thrived on her
having misled the Government into believing that she had possessed the requisite civil service
eligibility for the various positions she had successively held in her 20 years of service. In the
first place, she would not have been appointed in a permanent or temporary capacity, had the
CSC sooner discovered her dishonesty.
Besides, pursuant to Section 20, Rule VI of the Omnibus Implementing Regulations of the
Revised Administrative Code, to wit:
Section 20. Notwithstanding the initial approval of an appointment, the same may be recalled on
any of the following grounds.
a) Non-compliance with the procedures/criteria provided in the agency’s Merit Promotion

Plan:
b) Failure to pass through the agency’s Selection/Promotion Board;

c) Violation of the existing collective agreement between management and employees
relative to promotion; or
d) Violation of other existing civil service law, rules and regulations.
even an appointment initially approved by the CSC may be subsequently recalled when found to
be invalid. R.A. No. 6850 was never meant to cure an appointment void from the very beginning
for being based on a false representation of eligibility, like that of the petitioner. A contrary
construction of the statute will, in effect, reward dishonesty.
Lastly, the petitioner’s posture, that her dismissal from the service was too harsh a punishment,
considering that she had rendered 20 years of efficient service in the Government, does not
convince.
In Civil Service Commission v. Sta. Ana,36 the CSC Office for Legal Affairs (CSC-OLA) found
the respondent guilty of dishonesty and falsification of public documents for falsely representing
in his Personal Data Sheet that he had passed the Career Service Professional Examinations with
a rating of 83.8%, when in fact he was not in the Masterlist of Eligibles. The Office of the Court
Administrator affirmed the findings of the CSC-OLA, but recommended the reduction of the
penalty from dismissal to suspension of one year, because:
xxx the fact that respondent has already spent more than twenty (20) years of his life in the
service of this Court and this is his first administrative complaint. It could be that he committed
the acts complained of out of his desire to be promoted for the benefit of his family.
Respondent’s admission and prayer for forgiveness is a good sign that he is indeed remorseful
for what he did. xxx
Even so, we still ruled that dismissal from the service should be imposed, explaining:
The facts and evidence, coupled with respondent’s admission, sufficiently established his
culpability. Respondent’s use of a false certificate of eligibility constitutes an act of dishonesty
under civil service rules and his act of making a false statement in his personal data sheet renders
him administratively liable for falsification. Under Section 23, Rule XIV of the Administrative
Code of 1987, dishonesty (par. a) and falsification (par. f) are considered grave offenses
warranting the penalty of dismissal from service upon commission of the first offense.
On numerous occasions, the Court did not hesitate to impose such extreme punishment on
employees found guilty of these offenses.37 There is no reason why respondent should be treated
differently. xxx
In the petitioner’s case, we have more reason to hold that length of service was not
mitigating.1avvphi1 Unlike the respondent in Sta. Ana, she neither owned up to her dishonesty,
nor showed regret for it. The State would surely face greater risks were she now allowed to
continue in public office despite her having been found guilty of dishonesty.
WHEREFORE, we deny the petition for review on certiorari, and affirm the resolutions dated
September 5, 2002, January 8, 2003, and June 5, 2003, all issued in C.A.-GR SP No. 72555.
Costs of suit to be paid by the petitioner.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

ANTONIO EDUARDO B.
NACHURA
Associate Justice
Associate Justice
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice


JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

CERTIFICATION
RENATO C. CORONA
Chief Justice
Footnotes
1
Rollo, pp. 26, 28 and 30, respectively; penned by Associate Justice Teodoro P. Regino
(retired), and concurred in by Associate Justice Remedios Salazar-Fernando and
Associate Justice Juan Q. Enriquez, Jr.
2
CA Rollo, pp. 16-17.
3
Rollo, p. 15.
4
CA. Rollo, pp. 21-31.
5
Id., p. 4.
6
Id., p. 3.
7
Id., pp. 2-12.
8
Id., pp. 4-5.
9
Id., pp. 13-19.
10
Id., p. 20.
11
Id., pp. 21-31.
12
Id., p. 32.
13
Id., p. 34.
14
Id., pp. 35-37.
15
Id., pp. 44-52.
16
Id., p. 54.
17
Id., pp. 62-64.
18
Id., pp. 85-86.
19
Rollo, p. 18.
20
Cadayona v Court of Appeals, G.R. No. 128772, February 3, 2000; 324 SCRA 619.
21
Rollo, pp. 38-46.
22
Rule 43 states:
Section 8. Action on the petition. — The Court of Appeals may require the
respondent to file a comment on the petition, not a motion to dismiss, within ten
(10) days from notice, or dismiss the petition if it finds the same to be patently
without merit, prosecuted manifestly for delay, or that the questions raised therein
are too unsubstantial to require consideration. (6a)
23
E.g., Cadayona v Court of Appeals, G.R. No. 128772, February 3, 2000; 324 SCRA
619; Cusi-Hernandez v Diaz, G.R. No. 140436, July 18, 2000, 336 SCRA 113, 119-120;
Ace Navigation Co., Inc. v. Court of Appeals, G.R. No. 140364, August 15, 2000, 338
SCRA 70, 71; Roadway Express Inc., .v. Court of Appeals, G.R. No. 121488, November
21, 1996, 264 SCRA 696, 697.
24
G.R. No. 156011, July 3, 2008, 557 SCRA 1.
25
Torres, Jr. v. Court of Appeals, G.R. No. 120138, September 5, 1997, 278 SCRA 793
(the Court said: "xxx in resolving appeals from quasi judicial agencies, it is within the
discretion of the Court of Appeals to have the original records of the proceedings under
review be transmitted to it. In this connection, petitioners’ claim that the Court of
Appeals could not have decided the case on the merits without the records being brought
before it is patently lame. Indubitably, the Court of Appeals decided the case on the basis
of the uncontroverted facts and admissions contained in the pleadings, that is, the
petition, comment, reply, rejoinder, memoranda, etc. filed by the parties.).
26
Spouses Galang v. Court of Appeals, G.R. No. 76221, July 29, 1991, 199 SCRA 683,
689.
27
Cuevas v. Bais Steel Corporation, G.R. No. 142689, October 17, 2002, 391 SCRA 192.
28
Heirs of Severa P. Gregorio v. Court of Appeals, G.R. No. 117609, December 29,
1998, 300 SCRA 565.
29
Section 44, Rule 130, Rules of Court.
30
31
Civil Service Commission v. Perocho, Jr., A.M. No. P-05-1985, July 26, 2007, 528
SCRA 171; Pecho v. People G.R. No.111399, September 27, 1996, 262 SCRA 518;
Alarcon v. Court of Appeals, G.R. No. L-21846, March 31, 1967, 19 SCRA 688.
32
An Act to Grant Civil Service Eligibility Under Certain Conditions to Government
Employees Appointed Under Provisional or Temporary Status Who Have Rendered a
Total of Seven (7) Years of Efficient Service, and for Other Purposes; Approved,
February 8, 1990.
33
Province of Camarines Sur v. Court of Appeals, G.R. No. 104639, July 14, 1995, 246
SCRA 281; Torio v. Civil Service Commission, G.R. No. 99336, June 9, 1992, 209 SCRA
677.
34
G.R. No. L-52091, March 29, 1982, 113 SCRA 268.
35
Republic Act No. 6713.
36
A.M. No. OCA-01-5, August 1, 2002, 386 SCRA 1.
37
Citing Lumiqued v. Exevea, 282 SCRA 125 (1997); Re: Financial Audit of RTC,
General Santos City, 271 SCRA 302 (1997); Marasigan vs. Buena, 284 SCRA 1 (1997);
Moner v. Ampatua, 295 SCRA 20 (1998); Regalado v. Buena, 309 SCRA 265 (1999);
Eamiguel v. Ho, 287 SCRA 79 (1998); Re: Suspension of Clerk of Court Rogelio R.
Joboco, RTC, Br. 16, Naval, Biliran, 294 SCRA 119 (1998); Marbas-Vizcarra v.
Florendo, 310 SCRA 592 (1999); Amane v. Mendoza-Arce, 318 SCRA 465; Almario v.
Resus, 318 SCRA 742 (1999).
BERSAMIN, J.:
The Majority holds Justice Gregory S. Ong of the Sandiganbayan guilty of gross misconduct,
dishonesty, and impropriety in violation of the New Code of Judicial Conduct for the Judiciary.
I believe, however, that Justice Ong is administratively liable only for simple misconduct,
because that was the offense competently and properly established against him, and the offense
for which he is to be justly punished. I join the thorough consideration of the record and
recommendation for the suspension of Justice Ong for three months by Justice Jose Portugal
Perez and Justice Bienvenido L. Reyes. I humbly opine that it is unjust to punish Justice Ong
with the extreme penalty of dismissal from the service if the serious charges of gross misconduct,
dishonesty, and impropriety were not clearly and convincingly proven by competent evidence.
In imposing the ultimate penalty of dismissal, the per curiam decision of the Majority contained
the following observations:
1. Justice Ong's association with Janet Lim Napoles during the pendency of, and after the
promulgation of the decision in the Kevlar case resulting in Napoles's acquittal constituted gross
misconduct notwithstanding the absence of direct evidence of corruption or bribery in the
rendition of the said judgment.
2. The testimonies of Benhur Luy and Marina Sula, the former employees of Napoles, were
considered substantial evidence establishing Napoles's contact with Justice Ong during the
pendency of the Kevlar case. The substance of their testimonies given credence by the Majority
are the following:
(a) Napoles revealed to them that she had a "connect" or "contact" in the
Sandiganbayan who could help "fix" the Kevlar case;
(b) Luy testified that Napoles told him that she gave money to Justice Ong but did
not disclose the amount;
(c) Napoles kept a ledger detailing her expense for the Sandiganbayan, which
reached Fl 00 Million; and
(d) Napoles' information about her association with Justice Ong was confirmed
when she was eventually acquitted in 2010, and when Luy and Sula saw him visit
her office after the promulgation of the decision in the Kevlar case, and given the
eleven checks issued by Napoles in 2012;
3. The evidence on record was insufficient to sustain the charge of bribery and corruption against
Justice Ong inasmuch as Luy and Sula had not themselves witnessed him actually receiving
money from Napoles. Considering that bribery and corruption connote a grave misconduct, the
quantum of proof should be more than substantial;
4. By his act of going to Napoles's office on two occasions, Justice Ong exposed himself to the
suspicion that he had been partial to Napoles;
5. Investigating Justice Angelina Sandoval-Gutierrez found the testimonies of Luy and Sula
credible;
6. Justice Ong's act of voluntarily meeting with Napoles constituted impropriety, because he
must at all times be beyond reproach and should avoid even the mere suggestion of partiality and
impropriety;
7. According to Justice Sandoval-Gutierrez, the eleven checks supposedly issued as advance

interest for Justice Ong's deposit in AFPSLAI were given to him as consideration for the
favorable ruling in the Kevlar case; and
8. Justice Ong's denial and failure to disclose his attendance in Napoles's gatherings, and his
visits and social calls to Napoles constituted dishonesty.
To the Majority, Justice Ong's guilt for gross misconduct was anchored on the inference from his
association with Napoles having led to her acquittal in the Kevlar case. To support the inference,
the Majority accorded credence to the statements of Luy and Sula to the effect that: (a) Napoles
had told them on different occasions that she had a "contact" in the Sandiganbayan; ( b) Na poles
later on disclosed that Justice Ong was her contact in the Sandiganbayan; and ( c) Napoles told
Luy that she had paid money to Justice Ong (whose amounts she did not bother to disclose).
The evidence required in administrative cases is concededly only substantial;1 that is, the
requirement of substantial evidence is satisfied although the evidence is not overwhelming, for as
long as there is reasonable ground to believe that the person charged is guilty of the act
complained of.2 However, the substantial evidence rule should not be invoked to sanction the
use in administrative proceedings of clearly inadmissible evidence. Although strict adherence to
technical rules is not required in administrative proceedings, this lenity should not be considered
a license to disregard fundamental evidentiary rules.3 The evidence presented must at least have
a modicum of admissibility in order for it to have probative value. Not only must there be some
evidence to support a finding or conclusion, but the evidence must be substantial. Substantial
evidence is more than a mere scintilla; it means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.4 In my opinion, administrative proceedings
should not be treated differently under pain of being perceived as arbitrary in our administrative
adjudications.
The statements of Luy and Sula being relied upon were based not on the declarants' personal
knowledge, but on statements made to them by Napoles. I find it very odd that the Majority
would accord credence to such statements by Luy and Sula if they themselves did not personally
acquire knowledge of such matters. I insist that elementary evidentiary rules must be observed
even in administrative proceedings.
A most basic rule is that a witness can only testify on matters that he or she knows of her
personal knowledge.5 This rule does not change even if the required standard be substantial
evidence, preponderance of evidence, proof beyond reasonable doubt, or clear and convincing
evidence. The observations that the statements of Luy and Sula were made amidst the
"challenging and difficult setting"6 of the Senate hearings, and that the witnesses were "candid,
straightforward and categorical" during the administrative investigation7 did not excise the
defect from them. The concern of the hearsay rule is not the credibility of the witness presently
testifying, but the veracity and competence of the extrajudicial source of the witness's
information.
To be clear, personal knowledge is a substantive prerequisite for accepting testimonial evidence

to establish the truth of a disputed fact. The Court amply explained this in Fatula v. People:8 To
elucidate why x x x hearsay evidence was unreliable and untrustworthy, and thus devoid of
probative value, reference is made to Section 36 of Rule 130, Rules o.f Court, a rule that states
that a witness can testify only to those facts that she knows of her personal knowledge; that is,
which arc derived from her own perception, except as otherwise provided in the Rules qf Court.
The personal knowledge of a witness is a substantive prerequisite for accepting testimonial
evidence that establishes the truth of a disputed fact. A witness bereft of personal knowledge of
the disputed fact cannot be called upon for that purpose because her testimony derives its value
not from the credit accorded to her as a witness presently testifying but from the veracity and
competency of the extrajudicial source of her information.
In case a witness is permitted to testify based on what she has heard another person say about the
facts in dispute, the person from whom the witness derived the information on the facts in
dispute is not in court and under oath to be examined and cross-examined. The weight of such
testimony then depends not upon the veracity of the witness but upon the veracity of the other
person giving the information to the witness without oath. The information cannot be tested
because the declarant is not standing in court as a witness and cannot, therefore, be cross-
examined.
It is apparent, too, that a person who relates a hearsay is not obliged to enter into any particular,
to answer any question, to solve any difficulties, to reconcile any contradictions, to explain any
obscurities, to remove any ambiguities; and that she entrenches herself in the simple assertion
that she was told so, and leaves the burden entirely upon the dead or absent author. Thus, the rule
against hearsay testimony rests mainly on the ground that there was no opportunity to cross-
examine the declarant. The testimony may have been given under oath and before a court of
.iustice, but if it is offered against a party who is afforded no opportunity to crossexamine the
witness, it is hearsay just the same.
Moreover, the theory of the hearsay rule is that when a human utterance is offered as evidence of
the truth of the fact asserted, the credit of the assertor becomes the basis of inference, and,
therefore, the assertion can be received as evidence only when made on the witness stand,
subject to the test of cross-examination. However, if an extrajudicial utterance is offered, not as
an assertion to prove the matter asserted but without reference to the truth of the matter asserted,
the hearsay rule docs not apply. For example, in a slander case, if a prosecution witness testifies
that he heard the accused say that the complainant was a thief, this testimony is admissible not to
prove that the complainant was really a thief, but merely to show that the accused uttered those
words. This kind of utterance is hearsay in character but is not legal hearsay. The distinction is,
therefore, between (a) the fact that the statement was made, to which the hearsay rule docs not
apply, and (b) the truth of the facts asserted in the statement, to which the hearsay rule applies.
Section 36, Ruic 130 of the Rules of Court is understandably not the only rule that explains why
testimony that is hearsay should be excluded from consideration. Excluding hearsay also aims to
preserve the right of the opposing party to cross-examine the original dcclarant claiming to have
a direct knowledge of the transaction or occurrence. If hearsay is allowed, the right stands to be
denied because the declarant is not in court. It is then to be stressed that the right to cross-
examine the adverse party's witness, being the only means of testing the credibility of witnesses
and their testimonies, is essential to the administration of justice.
To address the problem of controlling inadmissible hearsay as evidence to establish the truth in a
dispute while also safeguarding a party's right to cross-examine her adversary's witness, the
Rules of'Court offers two solutions. The first solution is to require that all the witnesses in a
judicial trial or hearing be examined only in court under oath or affirmation. Section 1, Rule 132
of the Rules of Court formalizes this solution, viz:
Section 1. Examination to be done in open court. - The examination of witnesses presented in a

trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is
incapacitated to speak, or the question calls for a different mode of answer, the answers of the
witness shall be given orally. (1a)
The second solution is to require that all witnesses be subject to the crossexamination by the
adverse party. Section 6, Rule 132 of the Rules of Court ensures this solution thusly:
Section 6. Cross-examination; its purpose and extent. – Upon the termination of the direct
examination, the witness may be cross-examined by the adverse party as to any matters stated in
the direct examination, or connected therewith, with sufiicicnt fullness and freedom to test his
accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue. (8a)
Although the second solution traces its existence to a Constitutional precept relevant to criminal
cases, i.e., Section 14, (2), Article III, of the 1987 Constitution, which guarantees that: "Jn all
criminal prosecutions. the accused shall xxx enjoy the right xxx to meet the witnesses.face to
face xxx," the rule requiring the cross-examination by the adverse party equally applies to non-
criminal proceedings.
We thus stress that the rule excluding hearsay as evidence is based upon serious concerns about
the trustworthiness and reliability of hearsay evidence due to its not being given under oath or
solemn affirmation and clue to its not being subjected to cross-examination by the opposing
counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant
or actor upon whose reliability the worth of the out-of-court statement depends.9
In addition, the Majority adverted to the following statements of Luy and Sula, to wit: (a) Luy
and Sula saw Justice Ong visit Napoles in her office; (b) there was a ledger listing Napoles's
alleged "Sandiganbayan" expenses; and (c) Luy personally prepared the 11 checks allegedly
issued by Napoles to Justice Ong as advance interest for the latter's deposit in AFPSLAI as the
basis for concluding that Justice Ong's association with Napoles was more than merely casual;
and that such association was instrumental in Napoles's acquittal in the Kevlar case supposedly
orchestrated by Justice Ong in return for monetary consideration.
I cannot agree with the Majority.
Justice Ong admitted making visits to Napoles, but such visits apparently happened in 2012, or
long after the promulgation of the decision in the Kevlar case. He maintained that he had made
his visits only to thank her for accommodating his request for access to the robe of the Black
Nazarene.
The claim about the ledger and checks remained uncorroborated. No ledger or checks or any
other documents indicating the preparation of the ledger or the issuance of the checks were
actually presented. Nor was the connection of such ledger or the checks to the fixing of the
Kevlar case for monetary consideration ever established. In that light, the adverse statements by
Luy and Sula remained to be mere allegations that could not be considered as evidence by any
means.10
If the Majority concede that there was no sufficient evidence to support the charge of bribery and
corruption against Justice Ong, it became unreasonable for the Majority to hold that the totality
of the circumstances still showed his corrupt inclination. To let ourselves as judges reach a
conclusion of corrupt inclination despite the insufficient basis to find bribery and corruption is to
set at naught all our learning of rendering a judgment of guilt only upon evidence that is
sufficient, credible and reliable.
Having admitted visiting Napoles after the promulgation of the decision in the Kevlar case,
Justice Ong could be considered as fraternizing with a litigant, by which he surely transgressed
his duty as a judge to be beyond reproach and suspicion.11 He thereby violated Section 1 of
Canon 4 (Propriety) of the New Code of Judicial Conduct.12 Yet, such association with Napoles
was still censurable. Under Rule 140 of the Rules of Court, fraternizing with lawyers or litigants
is classified as a light charge penalized with a fine of not less than P1,000.00 but not exceeding
P10,000.00 and/or censure, reprimand, or admonition with warning.
The dishonesty of Justice Ong for having initially denied any acquaintance with Napoles was not
of the seriousness or gravity to merit the extreme penalty of dismissal. His denial neither related
to his official duties, nor to his qualifications as a Justice of the Sandiganbayan. It was not akin
to an act of dishonesty committed through the falsification of one's daily time records,13 and was
not similar to a judge's failure to disclose in his application for appointment to the Judiciary
pending criminal cases filed against him.14
It is relevant to note that dishonesty is a serious charge punishable by the following: (a) dismissal
from the service, forfeiture of all or part of the benefits as the Court may determine, and
disqualification from reinstatement or appointment to any public office, including government-
owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no
case include accrued leave credits; or (b) suspension from office without salary and other
benefits for more than three (3) but not exceeding six (6) months; or (c) a fine of more than
P20,000.00 but not exceeding P40,000.00.15 Even so, the Court refrained in several instances
from imposing these stiff administrative penalties because of the presence of mitigating
circumstances, like the length of service, acknowledgment of fault, and feeling of remorse and
humanitarian considerations.16
Nonetheless, the Court should appreciate mitigating circumstances in determining the proper
penalty to be imposed upon Justice Ong.1âwphi1 At present, he is the longest-sitting Justice in
the Sandiganbayan. Moreover, as mentioned by the Majority, he has admitted that his having
associated himself to a former litigant in his court was an error, and has asked forgiveness during
the proceedings held by Justice Sandoval-Gutierrez.
ACCORDINGLY, I VOTE to hold respondent JUSTICE GREGORY S. ONG guilty of SIMPLE

MISCONDUCT, to be punished with suspension from office for a period of three months.
LUCAS P. BERSAMIN
Associate Justice
Footnotes
1 Section 5, Rule 133 of the Rules o.f'Court states:
Section 5. Substantial evidence. - In cases filed before administrative or quasi-

judicial bodies, a fact may be deemed established if it is supported by substantial
evidence, or that amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion. (n)
2 Office of'the Ombudsman v. Dechavez, G.R. No. 176702, November 13, 2013, 709
SCRA 375, 382-383.
3 Miro v. Mendoza Vila. de Erederos, G.R. Nos. 172532 & 172544-45, November 20,
2013, 710 SCRA 371,396.
4 Lepanto Consolidated Mining Company v. Dumapis, G.R. No. 163210, August 13,
2008, 562 SCRA 103, 113-114.
5 Section 36, Rule 130 of the Rules of Court, to wit:
Section 36. Testimony generally confined to personal knowledge; hearsay

excluded. - A witness can testify only to those facts which he knows of his
personal knowledge; that is, which arc derived from his own perception, except as
otherwise provided in these rules. (30a)
6 Per curiam decision, p. 26.

7 Id.
8 G.R. No. 164457, April 11, 2012, 669 SCRA 135.
9 Id. at 152-155.
10 See Real v. Sangu Phi/ip11ines, Inc .. G.R. No. 168757. January 19. 2011. 640 SCRJ\
67, 84-85.
11 See De Guzman, Jr. v. Judge Sison, A.M. No. RTJ-01-1629, March 26, 2001, 355
SCRA 69, 90.
12 Section I. Judges shall avoid impropriety and the appearance of impropriety in all their
activities.
13 Concerned Employees of the Municipal Trial Court of'Meycauayan, Bulacan v.

Paguio-Bacani, A.M. No. P-06-2217, July 30, 2009, 594 SCRA 242, 258.
14 Gutierrez v. Belem, A.M. No. MTJ-95-1059. August 7, 1998, 294 SCRA I, 17.
15 Section 11, Rule 140 of the Rules of Court.
16 Office of the Court Administrator v. Judge Aguilar, A.M. No. RT.1-07-2087, 7 June
2011, 651 SCRA 13, 25.
I dissent in part with the majority decision.
The Charge
Justice Gregory S. Ong (Justice Ong) of the Sandiganbayan stands administratively charged with
misconduct in relation to two (2) criminal cases decided by the fourth division of the anti-graft
court in 201 OCri1~inal Cases No. 26768 and 26769.1
Criminal Cases No. 26768 and 26769 are referred to as the Kevlar Cases because they dealt with
the prosecution of seventeen (17) personsten (10) military officials and seven (7) private
individuals-thought to be involved in what was alleged to be an anomalous acquisition by the
government of five hundred (500) Kevlar helmets in 1998 and 2000. Criminal Case No. 26768
charged all seventeen with malversation of public funds through falsification of public
documents, whereas Criminal Case No. 26769 charged them with violation of Section 3(e) of
Republic Act No. 3019.
The Kevlar Cases were decided on 28 October 2010. The decision was penned by Justice Jose R.
Hernandez and was concurred in by Justice Maria Cristina J. Cornejo and division chair Justice
Ong. It handed out no convictions either for malversation or for violation of Section 3( e) of
Republic Act No. 3019. The results:
1. In Criminal Case No. 26768, seven (7) of the accused were acquitted while ten (10)
were convicted albeit only for the lesser offense of falsification of public documents;
2. In Criminal Case No. 26769, all seventeen of the accused were acquitted.
It is alleged that Justice Ong accepted bribes in exchange for the relatively tempered decision in
the Kevlar Cases. In particular, he is suspected of acting as "contact" and "fixer" for one of the
accused who ended up being ·acquitted in the two cases. That accused is Ms. Janet Lim Napoles
(Napoles).
Events Leading to the Instant Administrative Case
The following chain of events precipitated the allegations of bribery against Justice Ong:
A. Pork Barrel Scam
In 2013, Napoles was implicated in a corruption scam that allegedly involved diversion of
billions and billions of pesos worth of pork barrel funds2 into bogus Non-Government
Organizations (NGOs) and kickbacks for certain legislators. Details of the scam and Napoles'
involvement therein were revealed in sworn statements executed before the National Bureau of
Investigation (NBI) by six (6) "whistleblowers" who were former employees of Napoles in the
JLN Corporation.
The Napoles pork barrel scam was highly publicized in the media. News of the scam was met
with intense outrage by the public and catapulted numerous protest actions all over the country.
Napoles, in her own right, became a well-known public figure in the country albeit one of
disrepute.
On 29 August 2013, the Senate Committee on Accountability of Public Officers and

Investigations (Blue Ribbon Committee) began a probe, in aid of legislation, into the Napoles
pork barrel scam.
B. 30 August 2013 Rappler Report and Photograph
On 30 August 2013, the news website Rappler published a report written by one Aries Rufo
(Rufo) entitled "Exclusive: Napoles Parties with Anti-Graft Court Justice" that featured a
photograph of Justice Ong, Napoles and. Senator Jinggoy Estrada (Senator Estrada) posing and
standing beside each other at some gathering.3 The report contains excerpts of Rufo's interview
with Justice Ong regarding, among others, the circumstances of the featured photograph and the
truth behind anonymous "information" that he (Justice Ong) gave advice to Napoles during the
pendency of the Kevlar Cases.
According to the report, Justice Ong acknowledged his presence with Napoles in the featured
photograph but clarified that, at that time the same was taken, he did not know who Napoles was,
much less know that he was with a former litigant of his.4 The report also stated that Justice Ong
denied being an adviser.to Napoles during the pendency of the Kevlar Cases.5 After the
publication of the Rapp/er report and photograph, Justice Ong sent to Chief Justice Maria
Lourdes P. A. Sereno a Letter dated 26 September 2013. In the letter, Justice Ong explained to
the Chief Justice that the photograph featured in the Rapp/er report could have been taken during
the birthday of Senator Estrada either in the year 2012 or 2013, but definitely after the Kevlar
Cases have been decided. Justice Ong, in the same letter, also categorically denied having
attended any party or social event hosted by Napoles before, during or after the decision in the
Kevlar Cases.
C. 26 September 2013 Senate Blue Ribbon Committee Hearing
On the same day Justice Ong wrote his Letter to the Chief Justice, the Senate Blue Ribbon
Committee held one of its hearings on the pork barrel scam. Interrogated in this hearing were
two (2) of the scam's whistlebfowers-a certain Benhur Luy (Luy) and one Marina Sula (Sula).
Among the questions asked of Luy during the Blue Ribbon Committee hearing was the
occurrence, if any, of bribery in the Kevlar Cases. Luy answered that the Kevlar Cases were
fixed because Napoles had a "connect" with the Sandiganbayan:
Senator Angara: Baka alam ng ibang whistleblowers kung nagkakaayusan sa kaso na iyon
[Kevlar Cases]. Sige huwag ka matakot Benhur [Luy].
Luy: Alam ko inayos ni Ms. Napoles iyon dahil may connect nga siya sa Sandiganbayan.
On the other hand, Sula was asked during the same hearing whether Napoles knew any of the
justices of the Sandiganbayan. Sula testified that Napoles knew Justice Ong:
Chairman (Senator Guingona III): Sinabi ninyo na may tinawagan si [Napoles] al sinabi niya,
malapit nang lumabas yung TRO galing sa korte. May kilala pa ba si [Napoles] na huwes sa
korte sa Sandiganbayan?
xxxx
Sula: Si Mr. Ong po. Justice Ongpo.
Q: Gregory Ong?
A: Opo.
Q: Sa Sandiganbayan?
A: Opo.
The Administrative Investigation and the Evidence
Amidst the foregoing events, the Chief Justice, on 7 October 2013, requested the Court En Banc
to conduct a motu proprio investigation to shed light on the allegations that Justice Ong acted as
liaison and fixer for Napoles in the Kevlar Cases.
On 17 October 2013, the Comi En Banc required Justice Ong to submit his Comment. Justice
Ong submitted his Comment on 21 November 2013.
On 21 January 2014, the Court En Banc then assigned the matter to retired Supreme Court
Justice Angelina Sandoval-Gutien-ez (Justice Sandoval-Gutien-ez) for investigation, report and
recommendation.
In compliance with the Court's directive for investigation, Justice Sandoval-Gutierrez conducted
hearings on 12 February, 7 March and 21 March 2014.
A. Evidence Against Justice Ong
The evidence against Justice Ong, as culled from the hearings, comprise of the statements of
Luy, Sula and Rufo as well as the 30 August 2013 Rappl er report and photograph.
Luy Testimony.6 Luy is a cousin and former employee of Napoles in the JLN Corporation. Luy
testified that, on numerous occasions, he was told by Napoles that ·she has a "connect" in the
Sandiganbayan i.e., Justice Ong. Luy recalled that, even during the pendency of the Kevlar
Cases, Napoles confided to him that she was already communicating with Justice Ong.
Luy also testified that, just before the decision of the Kevlar Cases went out, Napoles told him
that she paid money to Justice Ong; although Napoles did not disclose how much. Luy said that
he used to keep a ledger where he records all payments made by Napoles in relation to the
Kevlar Cases as disclosed to him by the latter.
Luy likewise recounted two (2) instances in 2012, when Justice Ong visited the offices of
Napoles at the Discovery Suites Center in Pasig City:
1. On Justice Ong's first visit, Luy recalled –
a. He saw Justice Ong and Napoles talking in Unit 2501 of the Discovery Suites. He was
then staying at Unit 2502.
b. After a while, Napoles went to him at Unit 2502. Napoles told him that Justice Ong
was interested in depositing a P25 million Banco De Oro (BDO) check with Armed
Forces of the Philippines and Police Savings and Loan Association, Inc. (AFPSLAI) that
offers 13% annual interest.
c. Napoles, however, told him that instead of depositing the BDO check with the
AFPSLAI she would deposit the same in her account and would just advance interest
payments to Justice Ong.
d. Napoles then told him to prepare eleven (11) checks for Justice Ong. So he prepared
the eleven checks.
e. After preparing the eleven checks, he handed them to Napoles who then went back to
Unit 2501.
2. On Justice Ong's second visit, Luy said that Justice Ong and Napoles ate Chinese food at the
office.
Sula Testimony.7 Sula is likewise a former employee of Napoles in the JLN Corporation. Like
Luy, Sula testified that she had been told by Napoles in the past that Justice Ong fixed the Kevlar
Cases for her.
Sula also testified that she once saw Justice Ong visit Napoles' office in 2012.
Rufo Tes"timony.8 Rufo was the author of the 30 August 2013 Rapp/er report that featured the
photograph of Justice Ong, Napoles and Senator Estrada. Rufo testified that he interviewed
Justice Ong prior to the publication of the 30 August 2013 Rapp/er rep01i. Rufo said that Justice
Ong looked surprised and shocked when presented with the photograph of him with Napoles and
Senator Estrada.
Rufo, however, refused to reveal who gave him the photograph featured in his report based on
his privilege ,as a journalist to protect the identity of his sources.
B. Evidence for Justice Ong
Justice Ong testified in his defense.9 At the stand, Justice Ong denied acting as liaison and fixer
for Napoles in the Kevlar Cases. He said that he neither met with Napoles nor was familiar with
the latter during the pendency of the Kevlar Cases. Justice Ong, however, admitted to associating
with Napoles after the Kevlar Cases were decided.
Justice Ong said that his personal encounters with Napoles began only in 2012, during the
birthday party of Senator Estrada. It was there, Justice Ong claimed, that he was first introduced
to Napoles. Justice Ong said that, during the said party, he was able to converse with Napoles
about the Black Nazarene and to exchange cellphone numbers with the latter. Justice Ong also
admitted to eventually asking for Napoles' help in gaining access to the robe of the Black
Nazarene.
Justice Ong further recounted that, sometime after the birthday of Senator Estrada, he received a
call from Napoles asking him to go to the Adoracion Chapel in Makati. Justice Ong said that
when he went to the Adoracion Chapel, he was picked up by a car that brought him to a house in
a posh subdivision. Inside the house, Justice Ong recalled meeting up with Napoles and one
Monsignor Ramirez-the parish priest of Quiapo Church. There, Justice Ong said, arrangements
were made for him to wear the robe of the Black Nazarene. Weeks after, Justice Ong said he was
able to wear the robe of the Black Nazarene and to receive fragrant cotton balls from the image.
Justice Ong also conceded going to Napoles' office twice. Contrary to Luy's account, however,
Justice Ong said he never, in any of his visits, asked Napoles to make a deposit on his behalf
with the AFPSLAI. Justice Ong maintained that, in his first visit to Napoles, he merely thanked
the latter for giving him access to the robe of the Black Nazarene. Anent visiting Napoles' office
for the second time, Justice Ong claimed that he did so only to accede to Napoles' incessant calls
inviting him back to her office. At any rate, Justice Ong said, he only had coffee with Napoles
during his second visit to the latter's office.
Report and Recommendation
On 15 May 2014, Justice Sandoval-Gutierrez submitted to this Court her Report and
Recommendation.
In her Report and Recommendation, Justice Sandoval-Gutierrez found Luy and Sula to be
credible witnesses; taking note of the candid, straightforward, categorical and consistent manner
by which both Luy and Sula testified during the investigation.10 Hence, the investigating justice
gave full faith and credence to Luy and Sula's testimonies and held as an established fact that
Justice Ong acted as liaison and fixer for Napoles in the Kevlar Cases.
Justice Sandoval-Gutierrez moreover noted that despite the fact that Luy and Sula's statements of
bribery against Justice Ong are technically hearsay in nature, they still qualify as competent
evidence since only substantial evidence is required in administrative proceedings.11 For the
investigating justice, the statements of Luy and Sula satisfies the standard of substantial evidence
because they inspire reasonable conclusion that Justice Ong accepted bribes in relation to the
Kevlar Cases, and both witnesses were found to be credible.12
Verily, Justice Sandoval-Gutierrez recommended that Justice Ong be found guilty of gross
misconduct, dishonesty and impropriety and be meted the ultimate penalty of dismissal from
service.
Majority Decision
The majority adopted the recommendation of the investigating justice that Justice Ong be
dismissed from the service.13
Contrary to the findings of Justice Sandoval-Gutierrez, however, the majority held that the
evidence yielded by the instant administrative investigation was insufficient to establish that
Justice Ong acted as liaison and fixer for Napoles in the Kevlar Cases.14 For the majority, the
evidence on record only establishes that Justice Ong associated with Napoles two (2) years after
the Kevlar Cases were decided.15
Be that as it may, the majority characterized such association as Grossly Improper, as is
equivalent to Gross Misconduct, on the part of Justice Ong.16
Moreover, the majority found Justice Ong to be guilty of Dishonesty before this Court.17
Separate Opinions
The majority decision is supported by the separate opinions of Justice Arturo D. Brion, Justice
Marvic Mario Victor F. Leonen's and Justice Francis H. Jardeleza's. The three opinions raised
different points that tend to justify the dismissal from the service of Justice Ong.
DISCUSSION
I agree with the majority in finding the evidence yielded by the instant administrative
investigation as insufficient to establish that Justice Ong of the Sandiganbayan acted as liaison
and fixer for Napoles in the Kevlar Cases. I also agree that, at most, the evidence only shows that
Justice Ong associated with Napoles two (2) years after the Kevlar Cases were decided.
I, however, disagree with the majority in characterizing such association as Gross Misconduct on
the part of Justice Ong. Such association merely constitutes the offense Simple Misconduct
which, under Rule 140 of the Rules of Court, is only a less serious charge.18
I also disagree with the finding that Justice Ong was guilty of Dishonesty before this Court. The
basis of this finding was the result of taking statements of Justice Ong out of context.
Hence, I disagree with the ruling of the majority to dismiss Justice Ong from the service. I opine
that, even with due consideration of the fact that he was already previously sanctioned by this
Court,19 Justice Ong only ought to be suspended from office for three (3) months without salary
and other benefits.
My first objection with the majority decision is that while it found the evidence on record as
insufficient to support the conclusion that Justice Ong accepted bribes in relation to the Kevlar
Cases, it nevertheless imposed a penalty as if such bribery was, in fact, established. The majority
considered the act of Justice Ong in associating with Napoles two (2) years after the.
promulgation of the Kevlar Cases as gross misconduct, even though the evidence does not
establish that Justice Ong did so out of any corrupt or malicious motive. The decision, therefore,
sets a very dangerous precedent because it removes the distinction between what could otherwise
constitute as bribery or gross misconduct on one hand and mere simple misconduct on the other.
The root cause of this discrepancy, it appears to me, is the majority's half-hearted position as to
whether the evidence on record do in fact establish bribery or not. Thus, in the first part of its
discussion, the majority recognized the insufficiency of the evidence on record to establish
bribery on the part of Justice Ong:20
An accusation of bribery is easy to concoct and difficult to disprove. The complainant must
present a panoply of evidence in support of such an accusation. Inasmuch as what is imputed
against the respondent judge connotes a grave misconduct, the quantum of proof required should
be more than substantial. Concededly, the evidence in this case is insufficient to sustain bribery
and corruption charges against the [Justice Ong]. Both Luy and Sula have not witnessed [Justice
Ong] actually receiving money from Napoles in exchange for her acquittal in the Kevlar case.
Napoles had confided to Luy her alleged bribe to respondent. (Emphasis supplied).
However, in a later pmi of its discussion, the majority insinuated that such bribery was
established by virtue of Justice Ong's ''financial deal" with Napoles regarding "advance interest
for APFSLAI deposit" during one of the former's visit to the latter in 2012:21
Justice Sandoval-Gutierrez stated that the eleven checks of P282,000 supposed advance interest
for respondent's check deposit to AFPSLAI were given to respondent as consideration for the
favorable ruling in the [Kevlar Cases]. Such finding is consistent with Luy's testimony that
Napoles spent a staggering PIOO million just to "fix" the said case. Under the circumstances, it
is difficult to believe that [Justice Ong] went to Napoles' office the second time just to have
coffee. Respondent's act of again visiting Napoles at her office, after he had supposedly merely
thanked her during the first visit, tends to support Luy's claim that respondent had a financial
deal with Napoles regarding advance interest for APFSLAI deposit. The question inevitably
arises as to why would Napoles extend such an accommodation to [Justice Ong] if not as
consideration for her acquittal in the [Kevlar Cases]? [Justice Ong's] controversial photograph
alone had raised adverse public opinion, with the media speculating on pay-offs taking place in
the courts. (Emphasis supplied).
If the real intent of the majority was to say that Justice Ong's ''financial deal" with Napoles was
enough to support reasonable conclusion that there was bribery in the Kevlar Cases, then I must
register my dissent to this point as well.
"Financial Deal" Involving
APFSLAI Deposits Was Not Proven.
To begin with, the existence of such financial deal was never really established in this case.
Justice Ong's purported financial deal with Napoles rests merely on the hearsay account of Luy,
viz:22
Justice Gutierrez
Q: With respect to the Kevlar case, what participation did you have, if there was any?
Witness Luy:
A: Noong 2012 po kasi, si Justice Gregory Ong po nasa unit ... office din pong INL Corporation,
Unit 2501, yung office; so kami ni Ms. Janet .Lim Napoles nandito sa 2502 kasi yun po ang
office talaga namin. Si Ms. Napoles po sinabi niya sa akin, Ben, kasi si Ms. Napoles, may pera
siyang madami na pine-place niya po sa AFSLAI [sic] at yung AFSLAI [sic] po ay nagbibigay
po sa kanya a nago-oifer ng 13% interest annually po. So, ang nangyari po doon, sabi po ni Janet
Napoles, si Justice Ong ho raw, gustong magkaroon din ng interest parang ganoon. So
tutulungan niya. So, ang ginawa po namin ...
Justice Gutierrez
Q: Meaning to say, Justice Ong would like to deposit money ...
A: Opo.
Q: So he could get 13% interest?
A: Opo kasi tapos madam ang nangyari po pumunta napo si Ms. Napoles sa opisina niya.
Tinawag niya aka kasi pinapasulat na niya sa akin doon sa checke. So, ang ginawa po [ni] Ms.
Napoles, yung checke ni ... BDO check po kasi yun. Ang sahi sa akin ni Ms. Napoles, checke
daw po yun ni Justice Gregory Ong. So, BDO. So, di ko din po naman po nakita yung nakafagay
sa ...
Q: So, it is the check of Justice Ong not the check of Ms. Napoles?
A: Opo, Ang amount pong check madam ay P25.5 million ang amount noong BDO check na
inissue ...
Q: That belongs to Justice Ong?
A: Opo. Tapos madam, so ang ginawa po naming ni Ms. Napoles, after po noon madam, dahif
13% interest ang ino-offer ng AFSLAI, [sic] sabi ni madam, ganilo na fang Ben, ipasok na fang
muna natin yung checke niya sa personal account lw. Ako na fang muna for the meantime, mag-
issue ng checke sa kanyapara ma-avail ni Justice Ong yung interest. So, ang ginawa naming
madam, P25.5 million times 13% interest, tapos divided by 12, fumalabas no P282 or 283,000.00
or 281 po madam kasi nag-round off kami sa P282,000.00. So ginawa ni madam, baga monthly.
So, eleven (11) checks ang prinepare namin. x x x.
The flaws in Luy's account was revealed during his cross-examination:21
Atty. Geronilla
Q: Where were you at the office at that time?
Witness Luy
A: Yung alin po?
Q: : When you saw Justice Ong?

A: Andun fang po ako sa office niya sa cubicle.
Q: Did Ms. Napoles talk to Justice Ong?
A: Yes po.
Q: But you did not know what they talked about.
A: Hindi ko po alam kung ano pinag-uusapan.
Q: Now, when ... I am interested in this check which as you said P25 million or so?
A: Opo, P25.5 million po.
Q: : Whose check was that?
A: BDO check from Gregory Ong po.
Q: How do you know it was from Gregory Ong?
A: Sinabi po ni Ms. Napoles sa akin.
Q: Ah, it was she who told you?
A: Yes po.
xxxx
Justice Gutierrez
Q: By the way Mr. Luy, were you the one who delivered the check to Mr. Gregory Ong?
Witness Luy:
Q: Hindi na po.
Q: Who delivered the check to him?
A: Si Ms. Napoles na po.
Q: How did you come to know that it was Ms. Napoles? Did you see?
A: Opo, kasi dalawa po kami na nag-prepare. Bago kasi ... tinanong ko kasi madam siya kung
sino ang payee. Jlalagay ko po ba dito madam Gregory Ong? Sabi niya, Hindi. Teka fang.
Umalis siya. Pumunta sa kabila, sa 2501. Tapos tumuloy siya at sabi "Pay to cash na fang." So
inilagay naming ni madam na cash. Tapos, pinirmahan niya yung checke na prinepare ko. So,
bitbit na niya yung check. Dina/a niya.
Q: Ah, she brought the check to the other room but you did not see the person to whom it was
delivered right?
xxxx
A: Ah, you mean na si Ms. Napoles na hinigay niya mismo yung checke kay Gregory Ong?
Hindi po.
Q: You did not see?
A: .Hindi po. Hindi ko po nakita.
xxxx
Atty. Geronilla
Q: You also said that there were eleven (11) checks issued to somebody whom you do not know
which you gave to Janet Napoles.
Witness Luy
A: Checke po yun ni Ms. Janet Lim Napoles.
Q: Yes. Now, do you have a copy or record of those checks?
A: Wala na po.
Q: You know that if you deposit a check, it will return to you, right?
A: Babalik po iyon sa office.
Q: Do you have the return checks? Any return checks?
A: Wala na po.
Q: So you have no personal knowledge as to whom these checks were paid or who deposited
these checks if they deposited it at all?
Justice Gutierrez
Q: Of your own knowledge, where are those checks now?
Witness Luy
A: Hindi ko po alam kung nasaan. Basta ang sabi ni Ms. Napoles sa akin madam, after na
pagkakuha ng checke, noon inihahatid po yung checke, inihatid fang po yung checke kay Justice
Gregory Ong sa kabilang office sa 2501. Pero hindi ko na po inalam kasi personal checke na po
niya yon e.
Q: I am asking about the return checks?
A: Wala na po, ma'am.
Q: You have no knowledge where they are?
A: Walapo.
What is clear from the statements of Luy regarding the financial deal was that it is only based on
what Napoles actually relayed to him. Luy had no personal knowledge about the conversation
between Napoles and Justice Ong during the latter's visit; about whether Justice Ong assented to
an arrangement with Napoles; and about whether Justice Ong did issue a BDO check. The only
thing Luy was competent to testify about is his preparation of eleven (11) checks, purportedly for
Justice Ong, at the direction of Napoles. But, just the same, Luy does not have any personal
knowledge whether the eleven (11) checks were indeed given to Justice Ong or whether Justice
Ong received and accepted such checks.
Justice Leonen, in his Reflections, however, opined that we ought to consider· as established
Justice Ong's receipt of the eleven (11) checks because "even if Luy was not in Unit 2501 when
Napoles handed the checks to Justice Ong, there could be no other conclusion to be derived from
the facts."24 I respectfully disagree with Justice Leonen's analysis.
In my opinion, it is precisely the fact that no one was able to see and observe Justice Ong
receiving the eleven (11) checks that a contrary conclusion i.e., that Justice Ong never received
any checks from Napoles, finds reason. And this conclusion becomes all the more reasonable if
we consider that no one, neither Luy nor Sula, was able to testify regarding the existence of any
returned checks and that no such checks were ever submitted in evidence.
Hence, I opine that the existence of a so-called "financial deal" between Justice Ong and Napoles
was not established in this case.
Even Assuming The Existence of The Financial Deal, Evidence Still Does Not Support Finding
of Bribery in the Kevlar Cases
Moreover, even assuming arguendo that the statements of Luy suffice to establish the existence
of a financial deal between Justice Ong and Napoles, the same cannot still establish that there
had been bribery in the Kevlar Cases. To conclude that the consideration for the financial deal
was Napoles' acquittal in the Kevlar Cases is equivalent to mere speculation:
First. There is no direct evidence establishing that the financial deal was a bribe. Even Luy
himself does not say so. Hence, any conclusion of bribery can only-be inferred from
circumstantial evidence.
Second. There is, however, no circumstantial evidence on record from which the conclusion of
bribery may be inferred. At the very least, there should have been evidence to show that Justice
Ong and Napoles had been communicating during the pendency of the Kevlar Cases. There is no
evidence of such communication in this case-except, the hearsay testimonies of Luy and Sula.
Third. The conclusion of bribery cannot be inferred from the financial deal itself. The deal, it
must be emphasized, was entered into two (2) years after the decision in the Kevlar Cases was
promulgated. While not impossible, the likelihood that the financial deal was a bribe becomes
remote given the considerable amount of time that passed between Napoles' acquittal and the
purported pay-off.
Fourth. The conclusion of bribery cannot be inferred from the accommodating nature of the
financial deal. Indeed, if Luy's statements as to the existence of the financial deal were to be
believed as the truth, then the deal itself cannot really be considered as an "accommodation."
Justice Ong, as Luy recounted, had to issue a check of his own in exchange of the eleven (11)
checks of Napoles. The implication is that Justice Ong was not issued the eleven (11) checks out
of thin air or as a pay-off; rather, Justice Ong allowed the use of his own money as consideration
for the checks he allegedly received. Hence, the financial deal can stand as a transaction away
from bribery.
Since there is neither direct nor circumstantial evidence to support a finding of bribery,
concluding still that there was such bribery would be mere speculation. It would not be a
"reasonable" conclusion warranted by substantial evidence. From Luy's own story, bribery is
plainly and simply speculative.
II
My second objection with the majority decision is the characterization of Justice Ong's
association with Napoles as gross misconduct. I opine that the same is merely a simple
misconduct.
Extent of Justice Ong 's Association with Napoles
As established by the evidence, Justice Ong began associating with Napoles two (2) years after
Kevlar Cases were decided. Justice Ong himself admitted the entire breadth of this
"association:"25
First. At the birthday party of Senator Estrada in 2012, where Justice Ong was first formally
introduced to Napoles. The two talked about the Black Nazarene. They exchanged cellphone
numbers. It was also here that Justice Ong requested the help of Napoles in gaining access to the
robe of the Black Nazarene.
Second. Sometime after the birthday of Senator Estrada, Justice Ong received a call from
Napoles asking him to go the Adoracion Chapel in Makati. Justice Ong went to the Adoracion
Chapel and was picked up by a car that brought him to a house in a posh subdivision. Inside the
house, Justice Ong was able to meet up with Napoles and one Monsignor Ramirez-the parish
priest of Quiapo Church. Here, arrangements were made for Justice Ong to wear the robe of the
Black Nazarene. Weeks after, Justice Ong was able to wear the robe of the Black Nazarene and
he received fragrant cotton balls from the image.
Third. Sometime after that, Justice Ong went to Napoles' office twice.
The above are the only instances of Justice Ong's association with Napoles that have been duly
supported and established by competent evidence.
Justice Ong 's Association with Napoles is Mere Simple Misconduct
It is my considered opinion that Justice Ong's association with Napoles only constitutes simple
misconduct.
Unlike the case of fraternization between judges and litigants with still pending cases, there is no
rule of ethics that categorically prohibits and sanctions fraternization between judges and their
former litigants.26 Be that as it may, cases of fraternization between judges and their former
litigants may still be held unethical if found to he done for a corrupt purpose or in such manner
that violates any of the norms of propriety and integrity that every member of the bench ought to
possess. The ethical implications of fraternizations between judges and their former litigants,
therefore, must be evaluated on a case-to-case basis.
The case of Justice Ong and his association with Napoles, though done years after the Kevlar
Cases have been decided and not for any proven corrupt purpose, remain unethical because theirs
was not a case of simple fraternization. Aside from socializing with Napoles, Justice Ong-by his
own admission .no less-received favors (i.e., the arrangements made by Napoles providing
access to the robe of the Black Nazarene) from the former that, though innocent, could
nonetheless be mistaken by the public as related to his judgeship. Justice Ong's receipt of such
favors from Napoles, therefore, had the effect of compromising his image of impartiality and
integrity as it has indeed given the story of bribery the appearance of reality. As it has affected
the judgeship of Justice Ong, so has it affected the comi to which he belongs.
For such indiscretion, Justice Ong undoubtedly committed violations of Section I of Canon 2 and
Section I of Canon 4 of the New Code of Judicial Conduct:
CANON 2: INTEGRITY
SECTION 1. Judges shall ensure that not only is their conduct above reproach, but that it is
perceived to be so in the view of a reasonable observer.
CANON 4: PROPRIETY
SECTION 1. Judges shall avoid impropriety and the appearance of impropriety in all of their
activities.
These violations of Justice Ong, however, cannot be considered as gross misconduct but mere
simple misconduct. Gross misconduct means a transgression of some established and definite
rule of action that is willful, flagrant or animated by corrupt motives.27 Gross misconduct
implies the existence of malice or gross negligence, which reflects the corrupt character of the
actor. Malice or corruption, however, has not been established on the part of Justice Ong.
Justice Ong, therefore, is only accountable for simple misconduct, i.e., a plain transgression of
established norms but without the elements of willfulness, malice or corruption.
No Flagrant Disregard of Rules
In his Reflections, however, Justice Leonen opined that Justice Ong's association with Napoles is
still a gross misconduct despite absence of any evidence that taints such association with
corruption.28 He claims that even sans the element of corruption, Justice Ong's violations of
ethical standards may still be considered gross misconduct because they constitute ''flagrant
disregard of rules."29
I agree that ''flagrant disregard of rules" may qualify an otherwise simple misconduct into a gross
one but I discount its existence in this case. In my view, Justice Ong's receipt of arrangements
regarding the robe of the Black Nazarene and his visits to Napoles thereafter does not show a
"propensity to disregard the rules"30 on his part.
Flagrant disregard of rules may indeed exist outside the concept of cmTuption but it does require
more than the mere act of violating an ethical norin. I submit that in order to consider a violation
of an ethical norm as a "flagrant disregard" we must consider the circumstances under which
such violation was committed. The circumstances must show precisely a "propensity to disregard
the rules" on the part of the actor-something that is deliberate or malicious and which relates to
the very moral fibre of the actor; not the result of a mere simple indiscretion.
Justice Ong's receipt of arrangements regarding the robe of the Black Nazarene and his visits to
Napoles thereafter undoubtedly resulted in a violation of our ethical norms but it is not a flagrant
violation. We may consider perhaps the following circumstances: the acts were committed two
(2) years after the Kevlar cases were decided; the receipt by Justice Ong of the arrangements
regarding the Black Nazarene were motivated not by anything. illicit but by an all too human
religious devotion; such arrangements were of no significant pecuniary value; the subsequent
visits to Napoles' office were not shown to have been made for any purpose other than to extend
thanks to Napoles for the religious favor. These circumstances, though certainly not justifying,
nonetheless speak that the actuations by Justice Ong was motivated not by any malicious intent
to violate the established rules judicial ethics but more reasonably was the result of a mere
momentary lapse of discretion.
Hence, I discount the existence of a ''.fiagrant disregard of rules" on the part of Justice Ong.
III
I also object to the majority's finding that Justice Ong had been dishonest with this Court.
Findings of Dishonesty Has No Basis
In finding the existence of dishonesty on the part of Justice Ong, the majority pointed to the
farmer's somewhat deliberate attempt to conceal his visits to Napoles' office as inferred from the
following circumstances:31
1. In his Letter dated 26 September 2013 to the Chief Justice, Justice Ong never
mentioned that he visited Napoles' office twice in 2012.
2. In his Comment, Justice Ong mentioned of only one instance he visited Napoles'
office, i.e., the single occasion referred to by witness Sula in her supplemental affidavit.
I respectfully disagree. The instances, from which the inference of concealment was drawn, were
taken out of context.
First. Justice Ong's Letter dated 26 September 2013 came at the heels of the 30 August 2013
Rapp/er report that depicted him as having "partied' with the Napoleses and which featured a
controversial photograph of him, Napoles and Senator Estrada in some gathering. Verily, as
confirmed by Justice Ong, his main purpose in writing the said letter was for it to serve as a
direct response to the impression created by the said report and photograph that he had attended a
party or social event that was hosted by Napoles.32
Given the purpose of the Letter, it becomes understandable why Justice Ong's statements therein
were only limited to rebutting the Rappler report and explaining the context and circumstance of
the photograph. Justice Ong could not be expected to mention therein anything about his
subsequent private visits to Napoles' office because those matters were not, in the first place,
brought up by the Rappler report and photograph. Hence, Justice Ong's silence in the Letter with
respect to his visits to Napoles' office cannot be taken against him.
Second. In his Comment, Justice Ong never stated that he only visited Napoles' office once.
Justice Ong mentioned and described only one occasion of his visit to Napoles' office because he
was, by then, responding to the sole instance in which he was seen by Sula in Napoles' office.
Hence, the use by Justice Ong of the phrase: "This is the single occasion that Sula was talking
about in her supplemental affidavit ... "33 Justice Ong never made any representations that he
only visited the office of Napoles once.
At any rate, when asked during the investigation as to how many times he had visited Napoles'
office, Justice Ong candidly admitted doing so twice:34
Justice Gutierrez
Q: Did you go there?

Justice Ong
A: Yes, your honor.
Q: The second time as claimed by the whistleblowers?
A: Yes, I went there twice, your honor. (Emphasis supplied).
Hence, I find no cause in holding Justice Ong accountable for dishonesty.
Findings of Dishonesty By Justice Leonen
In addition to those pointed out by the majority, Justice Leonen fmiher cites the following
instances purportedly indicative of Justice Ong's dishonesty:35
1. In the Rappler article, Justice Ong was documented as saying that he did not know who
Napoles was or that the latter was a former litigant of his at the time the photograph
featured in the article was taken. However, Justice Ong contradicted this fact during the
investigation when he revealed that on the occasion when such photograph was taken,
Napoles thanked him for her acquittal in the Kevlar Cases.
2. Justice Ong, in his Comment, stated that he never attended a social event hosted by
Napoles. However, during the investigation, Justce Ong admitted to having attended a
Eucharistic mass arranged by Napoles.
3. Justice Ong had the propensity to conceal his association with Napoles as much as
possible and he only accommodated more details into his story as he was confronted with
more facts about such association. Thus, when confronted only with a picture of him and
Napoles in some gathering, Justice Ong limited his association with Napoles to their
attendance in Senator Estrada's party. But later, when confronted with the testimony of
Marina Sula who recounted having seen him visit the office of Napoles once, Justice Ong
explained in his Comment only the circumstances of that one visit. And still later on,
when confronted by Luy's statement during the investigation to the effect that he visited
Napoles' office twice, Justice Ong's story evolved so as to accommodate that second visit
as well.
Again, I respectfully disagree. The cited instances of dishonesty may be explained otherwise:
First. The first cited instance of dishonesty is premised on the fact that the photograph featuring
Napoles with Justice Ong was taken after the two were formally introduced to each other. But
such fact had never been established. It could have been otherwise.
Second. The second instance of dishonesty may be explained by the fact that when Justice Ong
mentioned the word "social event" in his Comment he was basically referring to events such as
parties or any social gatherings similar to that of a birthday party. This is likely so because
Justice Ong used the word "social event" primarily as a response to the impression created by the
photograph featured in the Rappler article-which depicts a party or a similar event. Under those
terms, it is understandable that Justice Ong may not have considered a Eucharistic mass as a
"social event."
Third. The third instance of dishonesty just stretches reasonable appreciation of Justice Ong's
statements. Justice Ong, of course, can only be expected to reveal so much as is required by the
subject of inquiry at any given time. When the subject of inquiry, however, shifted to the entire
gamut of his association with Napoles, like what happened during the investigation stage, Justice
Ong was candid enough to reveal them in its entirety. To assume that the reason why Justice Ong
revealed his association with Napoles piece by piece was because he was trying to avoid
disclosure of his entire association with Napoles is to presume bad faith without any
corroboration whatsoever.
Hence, I maintain that there remains no categorical indication that Justice Ong atter:npted to be
dishonest with this Court.
IV
Justice Ong then was shown liable only for simple misconduct which, under Section 9 of Rule
140 of the Rules of Court, is merely a less serious charge. Under Section 11 of the same rule, the
sanction for committing a less serious charge could either be suspension from office without
salary and other benefits for not less than one (1) nor more than three (3) months or a fine not
exceeding P10,000.00 but not exceeding P20,000.00.
It must also be considered, however, that Justice Ong was already previously fined P15,000.00
by this Court in the administrative case Jamsani-Rodriguez v. Ong.36
This being his second offense, I deem it proper to sanction Justice Ong with the maximum period
of suspension from office allowable for less serious charges.
IN VIEW WHEREOF, I cast my vote in favor of finding Associate Justice Gregory S. Ong of
the Sandiganbayan guilty of SIMPLE MISCONDUCT, for which he must suffer SUSPENSION
FROM OFFICE, without salary or other benefits, for a period of THREE (3) MONTHS.
Associate Justice Gregory S. Ong is also STERNLY WARNED that a repetition of the same or
similar offenses shall be dealt with more severely.
SO ORDERED.
JOSE PORTUGAL PEREZ

Associate Justice
Footnotes
1 Entitled People of the Philippines vs. Espinosa et al.

2 Formally known as the Priority Development Assistance Fund.
3 Accessed at http://www. rap pl er. com/newsbreak/3 7 67 3-napofes-anli-graft-court

justice on 30 July 2014.
4 Id.
5 Id.
6 TSN, 12 February 2014, pp. 1-60.
7 TSN, 12 February 2014, pp. 60-144.
8 TSN dated 7 March 2014.
9 TSN dated 21 March 2014.
10 Report and Recommendation, p. 22.
11 Id. at 23-25.
12 Id. at 25.
13 Per Curiam Decision.
14 Id. at 25.
15 Id.
16 Id. at 28.
17 Id. at 34.
18 Rules of Court, Rule 140, Section 9.
19 Jasmani v. Ong, A.M. No. 08-19-SB-J, 24 August 2010.
20 Per Curiam Decision, p. 25.
21 Id. at 33-34.
22 TSN, 12 February 2014, pp. 23-24.
23 Id. at 49-52 and 56-57.
24 Justice Leonen's Reflections, p. 17.

25 TSN, 21 March 2014, p. 29.
26 See Rules of Court, Rule 140, Section 10.
27 Camus v. Civil Service Board of Appeals, 112 Phil. 301, 306 (1961).
28 Justice Leonen's Reflections, p. 31-32.
29 Id.
30 Imperial vs. Government Service Insurance System, G.R. No. 91224, 4 October 2011.
31 Per Curiam Decision, p. 34.
32 TSN, 21March2014, pp. 27-28.
33 Id. at 41.
34 Id. at 29.
35 Justice Leonen's Reflections, pp. 26-31.
36 A.M. No. 08-19-SB-J, 24 August 2010, 628 SCRA 626.
REYES, J.:
I concur with the ponencia 's declaration that the evidence presented against Sandiganbayan
Associate Justice Gregmy S. Ong (Justice Ong) are insufficient to sustain the charge of bribery
against him. That there is no direct evidence that would sufficiently establish that Justice Ong
actually received money from Janet Lim-Napoles (Napoles) in exchange for her acquittal in the
Kevlar case. Likewise, I agree with the ponencia 's finding that the association between Justice
Ong and Napoles had been sufficiently proved; that Justice Ong's act of meeting with Napoles at
the latter's office on two occasions, notwithstanding that the decision in the Kevlar case had long
been promulgated, violates the rule of propriety under Canon 4 of the New Code of Judicial
Conduct.
I am unable to agree, however, with the ponencia 's conclusion that Justice Ong's association
with Napoles "constitutes gross misconduct notwithstanding the absence of direct evidence of
corruption or bribery." Although Justice Ong's dealing with Napoles gives the appearance of
impropriety, there is a paucity of evidence, however, to conclude that he has a "corrupt
inclination" which would merit a finding of gross misconduct on his part and be meted the
penalty of dismissal from the service. Further, I do not agree with the ponencia that Justice Ong
is guilty of dishonesty when he failed to disclose in his letter to the Chief Justice that he visited
Napoles in her office after the promulgation of the decision in the Kevlar case.
The charge of bribery and/or corruption against Justice Ong was not sufficiently proved.
The charge of gross misconduct against Justice Ong stems from the allegation of bribery against
him by "pork barrel scam" whistleblowers Benhur Luy (Luy) and Marina Sula (Sula)..
Essentially, Luy and Sula alleged that Napoles solicited the help of Justice Ong in connection
with the Kevlar case, which was then pending before the Sandiganbayan. They claimed that
Napoles was acquitted of the charge against her in the said case through the intercession of
Justice Ong; that Justice Ong obtained monetary consideration in exchange for Napoles'
acquittal.
The accusation of bribery is a very serious charge that would entail not only the dismissal of a
judge, in this case an Associate Justice of the Sandiganbayan, but also criminal prosecution.1 An
accusation of bribery is easy to concoct and difficult to disprove. Thus, the complainant must
against the respondent connotes a misconduct so grave that, if proven, would entail dismissal
from the bench, the quantum of proof required should be more than substantial.2 In such cases,
there must be a direct and convincing evidence to prove the charge of corruption; mere
accusations will not suffice.3
The claims of Luy and Sula that Justice Ong is the "contact" of Napoles in the Sandiganbayan
and that he caused the acquittal of the latter in the Kevlar case in exchange for monetary
consideration are hearsay.
During the investigation conducted by retired Supreme Court Justice Angelina Sandoval-
Gutierrez (Justice Sandoval-Gutierrez) on February 12, 2014, Luy categorically stated in his
direct examination that Justice Ong is the "contact" of Napoles in the Sandiganbayan. However,
when asked how he knew that Justice Ong is the "contact" of Napoles, Luy replied that Napoles
told him so. Thus:
Atty. Garen
Q And now Mr. Witness, about this statement of yours at the Blue Ribbon Committee that Ms.
Napoles has a certain connect sa Sandiganbayan, who was this connect you were talking about, if
you remember?
Witness Luy
A Si Justice Gregory Ong po.

Q How do you know that Justice Gregory Ong was the connect of Ms. Napoles at the
Sandiganbayan?
A Ang sinabi po ... Si Ms. Napoles po, pinsan ko po kasi si Ms. Napoles. We are second cousins.
So, kinwento talaga sa akin ni madam kung ano ang mga development sa mga cases, kung ano
ang mga nangyayari. Tapos po, sinabi niya sa akin mismo na nakakausap niya si Justice Gregory
Ong at ang nagpakilala raw sa kanya po ay si Senator [J]inggoy Estrada.4
(Emphasis mine)
Likewise, Luy's allegation that Justice Ong was the one who orchestrated the acquittal of
Napoles in the Kevlar case in exchange for monetary considerations is based only on what
Napoles told him, viz:
Q You answered Senator Angara this way which we already quoted a while ago: "Alam ko
inayos ni Ms. Napoles iyon dahil may connect nga siya sa Sandiganbayan." You stated that the
"connect" is Justice Ong. Can you explain before us what you mean "Alam ko inayos ni Ms.
Napoles iyon." What do you mean by that? "inayos"?
Witness Luy
A Kasi po ma'am meron kasi kaming ledger ng Sandigan case so lahat ng nagastos ni Ms. Janet
Napoles, nilista ko po yon lahat. Kasi naririnig ko po kay Janet Napoles, parang pinsan ko si Ms.
Janet Napoles "Paano nagkaroon ng kaso ang ate ko? So nadiscover ko na lang po na yun pala
yung Kevlar. So, mahigit one hundred na nagastos po ni Ms. Napoles, kasi di lang naman po si
sir Justice Gregory Ong ...
Justice Gutierrez
Just answer the question directly. Paano inayos... Anong ibig mong sabihin na inayos. Paano
inayos?
Witness Luy
A Ano po ma'am nagbigay po siya ng pera pero hindi siya nagbanggit ng amount. Basta
nagpalabas po siya ng pera.
Justice Gutierrez
Q Did you come to know to whom she gave the money?
A Wala po siyang ... basta ang sabi niya inayos na niya si... binanggit po niya si ... kasi si madam
hindi kasi siya nagki-keep kasi ako pinsan niya po kasi ako, nabanggit niya po si Justice Gregory
Ong. Sinabi niya nagbigay daw po siya ng pera kay Justice Ong pero she never mentioned kung
magkano yung amount.
Q Nagbigay ng pera kay Justice Gregory Ong?
A Opo, yun ang sabi niya.
Q That was her statement?
A Yes, madam.
Q To you?
A Yes, madam.
xxxx
Witness Luy
Kasi nakwcnto pa po madam ni Ms. Napoles na almost P100 million na ang nagastos niya. Tapos
ang sabi ko nga po sa kanya: "Madam, P100 million na sa halagang P3.8 lang na PO sa Kevlar
helmet, tapos P100 million na ang nagastos mo."
Justice Gutierrez
Q Did she tell you to whom or explain to you where this amount of P100 million was paid? How
was it spent?
A Basta ang natatandaan ko ... di ko na po matandaan ang mga dates kasi parang staggered. May
P5 million sa ibang tao ang kausap niya. Tapos ito naman tutulong ng ganito. Iba-iba kasi
madam eh.
Q But there was no showing the money was given to Justice Ong?
A Wala po pero nabanggit lang po niya sa akin na nagbigay po siya kay Justice Ong, but she
never mentioned the amount.5 (Emphasis mine)
Even Luy's testimony on the circumstances surrounding Napoles' issuance of eleven (11) checks,
each amounting to P282,000.00, to Justice Ong, supposedly interest payments for the P25.5
million which the latter wanted to deposit with the Armed Forces of the Philippines and Police
Savings and Loans Association, Inc. (AFPSLAI), are merely based on what Napoles told him.
Luy never saw that the said checks, which he insinuated were part of the consideration for
Napoles' acquittal in the Kevlar case, were indeed given to Justice Ong.
Q Now, when ...... I am interested in this check which as you said P25 milion or so?
A Opo, P25.5 million po.
Q Whose check was that?

A BDO Check from Gregory Ong po.
Q How do you know that it was from Gregory Ong?
A Sinabi po ni Ms. Napoles sa akin.
Q Ah, it was she who told you?
A Yes po.
Q That this is the check of Gregory Ong?
A Yes po. As I testified earlier na hindi ko nakita ang checke kung nakapangalan kay Ms. Janet
Napoles, ang sinabi ni Ms. Napoles sa akin, ang checke ay BDO na P25.5. Kaya nag-compute
kami ng 26.
xxxx
Q You never asked or confronted or talked to Justice Ong regarding that matter? You only relied
on the "say-so" of Janet Napoles?
A Sinabi niya, kasi siya ang boss ko, ang instructions niya noon, and at that time po, Justice
Gregory Ong was in the other. .. nasa kabilang office siya and before na nag-issue kami, na sa
2501 siya.
Q Yes, yes, but I am interested of your personal knowledge in the issuance of check, if the check
came from Justice Ong or not, and you said that it was only told to you by Janet Napoles?
A Yes po.
Justice Gutierrez
By the way Mr. Luy, were you the one who delivered the check to Mr. Justice Gregory Ong?
Witness Luy
A Hindi na po.
Q Who delivered the check to him?
A Si Ms. Napoles na po.
Q How did you come to know that it was Ms. Napoles? Did you see?
A Opo, kasi dalawa po kami na nag-prepare. Bago kasi .... Tinanong ko kasi madam siya kung
sino ang payee. Ilalagay ko po ba dito madam Gregory Ong? Sabi niya, Hindi. Teka lang. Umalis
siya. Pumunta sa kabila, sa 2501. Tapos, tumuloy siya at sabi "Pay to cash na lang." So, inilagay
namin madam na cash. Tapos, pinirmahan niya yung checke na prenepare ko. So, bitbit na niya
yung check. Dinala na niya.
Q Ah, she brought the check to the other room but you did not see the person to whom it was
delivered, right?
A Kasi madam, alam ko po na ...
Atty. Geronilla
No. You just answer the question.
Justice Gutierrez
Just answer the question.
Winess Luy
A Ah, you mean si Ms. Napoles na binigay niya mismo yung checke kay Gregory Ong? Hindi
po.
Justice Gutienez
Q You did not see?
A Hindi po. Hindi ko po nakita.6 (Emphases mine)
Similarly, Sula's claim that Justice Ong is the "contact" of Napoles in the Sandiganbayan is
merely based on what Napoles told her. Thus:
Atty. Benipayo
Q So, Ms. Sula, what were the statements being made by Ms. Janet Lim Napoles regarding her
involvement in the Kevlar case, or how she was trying to address the problem with the Kevlar
case pending before the Sandiganbayan?
Witness Sula
A Ang alam ko po kasi marami po siyang kinaka-usap na mga lawyers na binabayaran niya para
tulungan siya kay Gregory Ong sa Kevlar case. Tapos, sa kalaunan po, nasabi na niya sa amin na
meron na po siyang nakilala sa Sandiganbayan na nagngangalang Justice Gregory Ong. Tapos,
sabi niya, siya po ang tutulong sa amin para ma-clear kami. x x x.7 (Emphasis mine)
Basic is the rule that a witness may only testify to those facts, which he knows of his personal
knowledge.8 Hearsay evidence is inadmissible, generally, since it is not subject to the tests that
can ordinarily be applied for the ascertainment of the truth of the testimony, since the declarant is
not present and available for cross-examination.9 By itself, and as repeatedly conveyed by
jurisprudential policy, hearsay evidence is devoid of intrinsic merit, irrespective of any objection
from the adverse party.10
The veracity of the foregoing allegations against Justice Ong cannot be ascertained since the
declarant thereof, i.e. Napoles, was not presented during the investigation conducted by Justice
Sandoval-Gutierrez. Notwithstanding that the testimonies of Luy and Sula were admitted in
evidence, the same are, insofar as the claims that Justice Ong is the "contact" of Napoles in the
Sandiganbayan and that he caused the acquittal of the latter in the Kevlar case in exchange for
monetary consideration, devoid of any probative value.
While it is true that technical rules of procedure and evidence are not applied strictly in
administrative proceedings,11 still, hearsay evidence, without more, would not suffice to
establish an allegation therein.12 In this case, other than the hearsay testimonies of Luy and Sula,
no other evidence was presented to establish that it was indeed Justice Ong who is the "contact"
of Napoles in the Sandiganbayan who helped her secure an acquittal in the Kevlar case. Thus, the
testimonies of Luy and Sula with regard to the foregoing should not be given any weight in the
determination of Justice Ong's administrative liability.
Justice Ong's act of visiting Napoles office twice after the promulgation of the decision in the
Kevlar case gives the appearance of impropriety.
Although the circumstances surrounding the charge of bribery against Justice Ong were not
established, it does not mean, however, that he cannot be held administratively liable. Luy
testified that he personally saw Justice Ong visit Napoles' office in Discovery Suites Center on
two occasions sometime in 2012, after the promulgation of the decision in the Kevlar case. Luy's
testimony was corroborated by Sula.
Justice Ong admitted that he indeed visited Napoles in her office twice sometime in 2012.
However, he clarified that, on his first visit, he just wanted to thank Napoles personally since the
latter made it possible for him to wear the robe of the Black Nazarene, of which he is a devotee.
He explained that he wanted to wear the robe of the Black Nazarene, which is known for its
healing powers, since he is suffering from prostate cancer. On his second visit to Napoles, he
claimed that they just talked for about 30 minutes and had coffee.
Section 1, Canon 4 of the New Code of Judicial Conduct mandates judges to avoid not only
impropriety but also the appearance of impropriety as well in all of their activities. As a subject
of constant public scrutiny, judges must accept personal restrictions that might be viewed as
burdensome by the ordinary citizen and should do so freely and willingly.13 In this regard,
judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so
in the view of a reasonable observer.14 Public confidence in the judiciary is eroded by
irresponsible or improper conduct of judges. Fraternizing with litigants tarnishes this
appearance.15
Regardless of the reason therefor, it cannot be gainsaid that Justice Ong's act of visiting Napoles
in her office on two occasions gave rise to an appearance of impropriety on his part. He should
have been more circumspect in dealing with Napoles considering that the latter is a former
litigant in a case decided by a division of the Sandiganbayan, of which he is the chairman.
Undoubtedly, from the view of a reasonable observer, such conduct is highly imprudent and
unbefitting of a magistrate of the Sandiganbayan.
The appearance of impropriety on the part of Justice Ong is not negated by the fact that his visit
to the office of Napoles occurred long after the decision in the Kevlar case had been
promulgated. The termination of the Kevlar case will not dissipate public scrutiny on his conduct
as an Associate Justice of the Sandiganbayan, especially considering that he received a favor
from Napoles who was acquitted of the charge against her in the said case.
The conduct and behavior of everyone connected with an office charged with the dispensation of
justice is circumscribed with the heavy burden of responsibility. His at all times must be
characterized with propriety and must be above suspicion. His must be free of even a whiff of
impropriety, not only with respect to the performance of his judicial duties, but also his behavior
outside the courtroom and as a private individual.16
Justice Ong 's act of visiting Napoles only amounts to simple misconduct.
Notwithstanding the finding that there is no direct evidence to prove the charge of bribery
against Justice Ong, the ponencia nevertheless found him guilty of gross misconduct, imposing
upon him the penalty of dismissal from service. The ponencia stressed the "association" of
Justice Ong with Napoles after the promulgation of the decision in the Kevlar case and pointed
out that "[t]he totality of the circumstances of such association strongly indicates [Justice Ong's]
corrupt inclinations."
I do not agree.
Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of

behavior in connection with one's performance of official functions and duties. For grave or
gross misconduct to exist, there must be reliable evidence showing that the judicial acts
complained of were corrupt or inspired by the intention to violate the law, or were in persistent
disregard of well-known rules.17
Contrary to the ponencia 's finding, there is no reliable evidence in this case to conclude that
Justice Ong's conduct was corrupt or inspired by the intention to violate the law. The hearsay
testimonies of Luy and Sula, without more, are insufficient to prove the charge of bribery against
Justice Ong. There were no other evidence presented as regards the alleged bribery of Justice
Ong which, when taken together with the hearsay testimonies of Luy and Sula, would support a
finding of gross misconduct on the part of Justice Ong.
The allegation that Justice Ong is the "contact" of Napoles in the Sandiganbayan who helped her
secure an acquittal in the Kevlar case remains to be a mere allegation unsupported by any
reliable evidence. It is derived from the testimonies of Luy and Sula who testified thereon based
not on their personal knowledge but on what Napoles had told them. To stress, the said
testimonies of Luy and Sula have no probative value and should not have been considered by the
ponencia in the determination of the administrative liability of Justice Ong.
The "totality of circumstances" adverted to by the ponencia, apparently, only refers to the visit of
Justice Ong to the office of Napoles on two occasions after the promulgation of the decision in
the Kevlar case, which fact was admitted by Justice Ong. Indeed, from the various evidence
presented against Justice Ong, only the fact of his visit to Napoles was sufficiently established.
However, as already stated, the fact of Justice Ong's visit to Napoles only supports a finding of
impropriety or giving the appearance of impropriety on the part of Justice Ong.
I mpropriety or giving the appearance of impropriety, by fraternizing with a litigant, in this case
a former litigant, only amounts to simple misconduct. On this point, the Court's ruling in Atty.
Molina v. Judge Paz18 is instructive, viz:
In the present administrative case, respondent Judge Paz admitted to facilitating a meeting
between Atty. Molina and Mayor Antiporda with the aim of forging a settlement between the
warring political factions. Respondent Judge Paz saw himself as a mediator between the
contending political factions in the Municipality of Buguey. However, Atty. Molina was at that
time facing a multiple murder case in the sala of respondent Judge Paz and the victims of the
multiple murder case were the political followers of Mayor Antiporda. In short, respondent
Judge Paz held a private meeting with Atty. Molina, who was then accused of multiple murder
before respondent Judge. Respondent Judge Paz knew that Atty. Molina was a private prosecutor
in the criminal cases against the mayor's son pending with another court. The disputes between
the political factions involved grave felonies, which respondent Judge Paz should have known
could not be the subject of compromise.
Canon 2 of the Code of Judicial Conduct provides that a judge should avoid impropriety and the
appearance of impropriety in all his activities. A judge must not only be impartial, he must also
appear to be impartial. Public confidence in the judiciary is eroded by irresponsible or improper
conduct of judges. Fraternizing with litigants tarnishes this appearance.
Respondent Judge Paz's actuation constitutes simple misconduct, which for a first offense is
punishable with suspension of one month and one day to six months. However, respondent Judge
Paz had retired compulsorily on 21 September 1998. In lieu of suspension, respondent Judge Paz
should be fined, not P1,000 as recommended by the Investigating Justice, but P20,000
considering that simple misconduct is a less serious charge.19 (Emphasis mine)
Thus, finding that his conduct violates the rule on propriety under Canon 4 of the New Code of
Judicial Conduct, Justice Ong should be held liable for simple misconduct. The charge of simple
misconduct is classified under Section 9, Rule 140 of the Rules of Court as a less serious charge.
A finding of guilt for a less serious charge carries with it the penalty of either: (a) suspension
from office without salary and other benefits for not less than one ( 1) nor more than three (3)
months; or (b) a fine of more than P20,000.00, but not exceeding P40,000.00.20 This is already
the second offense of Justice Ong; he had previously been fined and sternly warned that a
repetition of the same or similar offense in the future will be dealt with more severely.21
Accordingly, the maximum penalty for less serious charge should be imposed upon Justice Ong,
i.e. suspension from office without salary and other benefits for three (3) months.
The charge of dishonesty against Justice Ong is unsubstantiated.
I further disagree with the ponencia's conclusion that Justice Ong is guilty of dishonesty. The
ponencia opined that, in Justice Ong's letter to the Chief Justice prior to the commencement of
the administrative investigation, he vehemently denied having attended parties or social events
hosted by Napoles; that he deliberately failed to disclose his "social calls" to Napoles. That it
was only after Luy and Sula testified that he mentioned the fact of his visit to Napoles.
Dishonesty is defined as the disposition to lie, cheat, deceive or defraud; untrustworthiness; lack
of integrity; lack of honesty, probity or integrity in principle; lack of fairness and
straightforwardness; disposition to defraud, deceive or betray.22 Contrary to the ponencia 's
assessment, the failure of Justice Ong to disclose in his letter to the Chief Justice the fact of his
visit to Napoles cannot be considered dishonesty as would merit disciplinary action.
The ponencia failed to take into consideration the context of the letter sent by Justice Ong to the
Chief Justice. During the administrative investigation conducted by Justice Sandoval-Gutierrez,
Justice Ong explained that:
Q Why did you write a letter to the Chief Justice?
A I wrote that letter motu proprio although I was not required by the Supreme Court to write that
letter in order to defend a reputation as a magistrate or as a judge, and also to protect the good
name and integrity of the Sandiganbayan as an institution because I believe that I did not commit
any wrongdoing, sir.
Q What in particular was Mr. Rufo trying to say in this article?
A Mr. Rufo, in his article, he was trying to insinuate that during the pendency of the Kevlar
helmet case against this Janet Napoles, that there is irregularity in the manner by which the
decision was arrived at, and also, at that time of the pendency of the case, I was [close] to
Napoles and he was also insinuating that I was the ... I am the legal adviser. I was the one
advising her of the legal strategies as to how to go about the Kevlar helmet case, and also that I
was partying with the Napoleses.
xxxx
Q Now in your letter to the Chief Justice, you did not speak about this circumstance of meeting
with Ms. Janet Napoles. So, why did you not include in your letter your explanation regarding
the role of Ms. Napoles in helping you gain access to the Black Nazarene?
A Because at that time when I wrote the Chief Justice, I was only addressing the picture wherein
myself, Senator Jinggoy and Napoles were depicted and the article of Mr. Rufo and nowhere in
the article that says that I was seen ... that I was there in the office of Ms. Napoles at that time,
sir.23 (Emphases mine)
Verily, Justice Ong wrote the said letter to the Chief Justice to address the insinuations in the
article of Aries Rufo published in the social news-network Rappler, particularly, that he attended
parties and social events hosted by Napoles. This he did by categorically denying in the said
letter that he attended parties or social events hosted by Napoles. He failed to disclose that he
twice visited Napoles in her office since he was addressing the insinuation against him in the said
article. It may have been a lapse of judgment on his part but it certainly is not dishonesty. In any
case, when allegations came out that he visited the office of Napoles in Discovery Suites Center
on two occasions, Justice Ong readily admitted to such fact. Such admission, indubitably, is
incongruent with the idea of being dishonest.
ACCORDINGLY, I vote to hold Sandiganbayan Associate Justice Gregory S. Ong guilty of

SIMPLE MISCONDUCT. Accordingly, he should suffer the penalty of SUSPENSION FROM
OFFICE for a period of THREE (3) MONTHS, without salary or other benefits. Further, he is
STERNLY WARNED that a repetition of the same or similar offense in the future shall be dealt
with more severely.
BIENVENIDO L. REYES
Associate Justice
Footnotes
1 See Sy v. Judge Fineza, 459 Phil. 780 (2003).
2 See Castanos v. Judge Escano, Jr., 321 Phil. 527 (1995); Cea v. Judge Paguio, 445 Phil.
535 (2003); Vda. de Nepomuceno v. Judge Bartolome, 448 Phil. 663 (2003).
3 See Atty. Valdez, Jr. v. Judge Gabales, 507 Phil. 227 (2005).
4 TSN, February 12, 2014, p.15.
5 Id. at 26-29.
6 Id. at 50-52.
7 ld. at 71.
8 RULES OF COURT, Rule 130, Section 36.
9 See R.J. Francisco, EVIDENCE, l 996 ed., p. 246.
10 Peralta, Jr., PERSPECTIVES OF EVIDENCE, 2005 ed., p. 275.
11 Office of the Court Administrator v. Indar, A.M. No. RTJ-10-2232, April 10, 2012,
669 SCRA 24.
12 See Gonzales v. NLRC, 372 Phil. 39 (1999); Skippers United Pacific, Inc. v. NLRC,
527 Phil. 248 (2006).
13 NEW CODE OF JUDICIAL CONDUCT, Canon 4, Section 2.
14 Id., Canon 2, Section 1.
15 Dela Cruz v. Judge Bersamira, 391 Phil. 232, 242 (2000).
16 Derogatory News Items Charging J Demetria Demetria, 407 Phil. 671 (2001).
17 See Gacadv. Clapis, Jr., A.M. No. RTJ-10-2257, July 17, 2012, 676 SCRA 534; Judge
Francisco v. Justice Cosico, 469 Phil. 549 (2004).
18 462 Phil. 620 (2003).
19 Id. at 630-631.
20 RULES or COURT, Rule l 40, Section 11.
21 See Jamsani-Rodriguez v. Justice Ong, A.M. No. 08-19-SB-J, August 24, 20 l 0, 628
SCRA 626.
22 Canada v. Judge Suerte, 570 Phil. 25, 35 (2008).
23 TSN, March 21, 2014, pp. 12-13; 27.
CONCURRING OPINION
LEONEN, J.:
I join the ponencia and the concurring opinions of Justices Arturo Brion and Francis Jardeleza in
this important case that defines our collective commitment to strictly enforce our own ca.nons of
judicial ethics. I add the following views to those they have already mentioned.
A full understanding of this case requires that we consider the facts in context.
Janet "Jenny" Lim Napoles is one of the accused in the Sandiganbayan case, People v. Lt. Gen.
Edgardo Viray Espinosa.1 The . . accused were charged . with malversation of public funds,
through falsification of public documents, and violation of Section 3( e) of Republic Act No.
3019.
The case involved the purchase by the Philippine Marine Corps of 500 US-made Kevlar helmets
worth P3,864,044.99 (hence, this case· is referred to as the Kevlar case). Several vouchers and
documents were falsified to certify their delivery by dealers who won t}:ie public biddings. It
was alleged that the dealers were merely the dummies of Napoles and that the helmets were not
delivered. It was also alleged that when the helmets were subsequently delivered, they turned out
to be poorly made Kevlar helmets, made elsewhere and not from the United States as specified in
the bid documents.
Benhur Luy, Napoles' cousin and personal assistant, testified at the Senate Blue Ribbon
Committee hearing held on September 26, 2013, that he was aware that Napoles· "fixed" the
Kevlar case in the Sandiganbayan. Another witness and former employee of Napoles, Marina
Sula, stated that Napoles knew Justice Gregory S. Ong, the chairperson of the Sandiganbayan
Division that heard the Kevlar case.2
During this court's investigation following up on statements made during the Senate Blue Ribbon
Committee hearing, Benhur Luy further testified that he kept a ledger where he listed all the
expenses of Napoles in relation to the Kevlar case, which took ten ( 10) years to resolve. He
found it strange that for a four-million-peso nialversation case, Napoles was spending Pl 00
million. According to Luy, Napoles explained that she had to pay several individuals in order to
fix this case. Luy also stated that one of the beneficiaries to these pay-offs was Justice Ong,
although he did not know how much Justice Ong received. Before the decision on the Kevlar
case was released, Benhur Luy observed that Napoles was confident that she would be
acquitted.3
On October 28, 2010, the Fourth Division of the Sandiganbayan promulgated the decision in the
Kevlar case. The decision was penned by Associate Justice Jose R. Hernandez and concurred in
by Associate Justices Gregory S. Ong and Cristina J. Cornejo. As predicted, Napoles was
acquitted from the charges against her.
In assessing the guilt of Napoles and her co-accused, the Sandiganbayan relied on the elements
of .malversation and falsification of public documents.
The elements of malversation under Article 217 of the Revised Penal Code are as follows: (1)
that the offender is a public officer; (2) that he had the custody or control of funds or prope1iy by
reason of the duties of his office; (3) that those funds or property were public funds or property
for which he was accountable; and (4) that he appropriated, took, misappropriated or consented
or, through abandonment or· negligence, permitted another person to take them. The
Sandiganbayan identified Commander Eduardo Resurreccion Loyola as the accountable officer
in the Kevlar case.4 Commander Loyola had control over the funds of the Philippine Marine
Corps.
The Sandiganbayan also found tha.t the 500 helmets were not yet delivered to the Philippine
Marine Corps even if the inspection report stated otherwise. Without the delivery of the 500
Kevlar helmets, the Sandiganbayan concluded that there was taking of government funds.5
Despite these findings, the Sandiganbayan found that there was no sufficient evidence to show
that Commander Loyola malversed funds because the prosecution did not present evidence that
shows Commander Loyola's participation in the preparation of the procurement documents that
supported the disbursement vouchers. What was only proven was that Commander Loyola
signed those disbursement vouchers and the fourteen (14) checks that paid for the Kevlar
helmets' acquisition.6
The Sandiganbayan acquitted everyone for the charge of malversation due to the lack of guilt of
the accountable officer.7
However, the Sandiganbayan ruled that the property inspection and acceptance report that
certified the delivery of the helmets was falsified. The Sandiganbayan found the members of the
Inspection and Acceptance Committee and the private bidders who conspired with the committee
guilty for falsification of a public document.
Napoles was not included among those implicated for the falsification charge. The
Sandiganbayan acquitted Napoles on this basis. Thus, in that decision:
The same finding, however, cannot be attributed to accused Napoles. She was not one of the
dealer-payees in the transaction in question; on this score alone, her participation as a private
individual becomes remote. Even if she owns the bank account where the 14 checks were later
deposited, this does not in itself translate to her conspiracy in the crime charged in the
information absent evidence of an overt act on her part.8 (Emphasis supplied)
The Sandiganbayan also pointed out that the prosecution failed to prove that Napoles used the
dealers as dummies since there was "no sufficient evidence that [Napoles] maintains a
controlling interest in these entities."9
Napoles' co-defendants in the Kevlar case filed a motion for reconsideration on their conviction
for the falsification charge. In the resolution dated September 20, 2011, the same Sandiganbayan
Division lowered the penalty of those who were convicted.
From the records of this case, it appears that Justice Ong met Napoles on February 17, 2012.10
Justice Ong claims that he did not know Napoles during the pendency of the Kevlar case. He also
claims that he was formally introduced to Napoles during a party hosted by Senator Jinggoy
Estrada sometime in 2012.11
When Justice Ong met Napoles, she thanked him for her acquittal in the Kevlar case. Justice Ong
told her that she should not thank him, but, rather, she should thank her evidence.12
In the course of this meeting, Justice Ong discovered that Napoles engaged in philanthropic work
and worked with different" churches.13 Napoles offered to arrange a meeting between Justice
Ong and the parish priest of Quiapo Church, so Justice Ong could have an opportunity to wear
the robe of the Black Nazarene.14
Justice Ong emphasized the importance of the opportunity given to him by Napoles.15 He was a
devotee of the Black Nazarene and was suffering from a terminal illness (prostate cancer). He
believed that wearing the robe could catalyze his healing. Justice Ong exchanged cellphone
numbers with Napoles in order to coordinate his meeting with the parish priest of Quiapo
Church.16
One Sunday, Napoles' driver collected Justice Ong from the adoration chapel of Santuario· de
San Antonio Parish in Makati. The driver brought him to a private residence. He attended a
private mass followed by a lunch hosted by Napoles. In that lunch, he met Monsignor Ramirez of
the Quiapo Church.17
Due to the intercession of Napoles, Justice Ong was able to wear the Black Nazarene's robe.18
Justice Ong testified further that he went to Napoles' office at the Discovery Suites Center, 25
ADB A venue, Ortigas, Pasig City, to thank Napoles for giving him the opportunity to wear the
Black Nazarene's robe.19
After Justice Ong's first visit, Napoles continued calling him and inviting him, and he felt that he
would be a "walang kwentang tao" if he turned her down.20 He went again for a second time to
Napoles' office for "chit-chat and small talk."21
Based on Benhur Luy's testimony, during the first time that Justice Ong visited Napoles' office,
Napoles helped Justice Ong invest in the Armed Forces and Police Savings & Loan Association,
Inc. (AFPSLAI). Napoles earns 13% per annum in interest in her AFPSLAI placements.22
In that visit, Justice Ong brought a check for P25.5 million to deposit to the AFPSLAI. Napoles
told Luy that the check would be deposited in her Metro bank account. She further instructed
Luy to prepare eleven ( 11) checks to advance the interest earnings of Justice Ong. Each check
was for approximately P282,000.00, for a total of P3,102,000.00.23
After Luy had prepared the eleven (11) checks, he asked Napoles if the payee should be in the
name of Justice Ong. Napoles told Luy that she would ask Justice Ong who was in the room next
to where Luy had prepared the checks. When Napoles returned, she told Luy that the checks
should be paid to cash. Luy followed Napoles' instructions. Luy handed the checks to Napoles
who went to the next room presumably to hand the checks to Justice Ong.24
Sometime in July 2013, news broke out that Napoles mastenninded a multibillion peso scam
involving the Priority Development Assistance Fund or PDAF.25 This prompted media attention
to shift to Napoles, her operations, her lifestyle, and her relationships with powerful individuals.
On August 13, 2013, Aries Rufo's article, entitled Exclusive: Napoles parties with antl-graft
court justice, was published in the news website, Rappler.26 The article featured a photograph of
Justice Ong with Senator Jinggoy Estrada and Janet Lim Napoles during a social function. The
article published statements made by Justice Ong when the reporter confronted him with the
photo and knowledge of Napoles' acquittal in the Kevlar case. Excerpts from the article state:
I do not know her. She did not appear in court. I think she had a waiver of appearance in court,"
he replied when reminded that Napoles and her brother, Reynald. Lim aka Reynaldo Francisco,
were both respondents in the Kelvar [sic] helmet case.
....
Asked where the photo was taken, Ong vaguely remembers the occasion but said it could have
been one of the parties frequently hosted by Estrada. "Jinggoy is a friend. I am closer to him than
with the father," Ong said, referring to former President Joseph Estrada. The former president
appointed Ong to the Sandiganbayan in 1998.
....
In an interview Wednesday, August 28, Ong sought to downplay the first impression that he was
close to or even a friend of Napoles. He explained, "I was beside Jinggoy. Jinggoy was the one in
the middle. If she was beside me, that would have been a different story."
He said he "would not be stupid enough" to be posing with Napoles had he known that she was
the respondent in the case previously handled by his division. The ruling, where a number of
Marine officials were found guilty, was penned by Justice Jose Hernandez. Ong and Justice
Maria Cristina Cornejo concurred.
Told abqut the propriety of members of the judiciary being seen in social events that could
compromise their integrity, Ong said: "I should have learned my lesson."
In response to the Rappler article, Justice Ong wrote a letter dated September 26, 2013,
explaining to this court that he did not know Napoles during the pendency of the Kevlar case.
On September 26, 2013, the Senate Blue Ribbon Committee held an investigation in aid of
legislation in relation to the Priority Development Assistance Fund (PDAF) scandal. In that
hearing, Luy and Sula were presented. Both witnesses mentioned ·Justice Ong's connection with
Napoles.
The statements made during the Senate Blue Ribbon Committee hearing prompted this court to
investigate the matter surrounding Justice ) Ong's relationship with Napoles. We referred the
case to former Associate Justice Angelina Sandoval-Gutierrez to conduct an investigation.
In the report dated May 15, 2014, Justice Sandoval-Gutierrez found Justice Ong guilty of gross
misconduct, dishonesty, and impropriety. She recommended the penalty of dismissal with
forfeiture of all retirement benefits, excluding accrued leave credits, and with prejudice to
reemployment to any government agency, including government-owned or controlled
corporations.27
The issues in this case are:

(a) Whether Justice Ong committed improprieties amounting to grave misconduct in the
course of his interactions with Janet Lim Napofes;
(b) Whether Justice Ong committed dishonesty; and
(c) Whether dismissal is the appropriate penalty for Justice Ong's actions.
I
Improprieties
Canon 4 of the Code of Judicial Conduct provides for the rules relating to the proprieties
required of judges and justices.
The canon states that "[p ]ropriety and the appearance of propriety are essential to the
performance of all the activities of a judge." The rules in the canon .regulate the manner how
judges should conduct themselves and how they should relate to lawyers and litigants. It
extensively provides guidelines on judges' receipt of gifts.
Justice Ong improperly received gifts. from Napoles. Napoles facilitated his access to religious
garments and allowed him to either illicitly invest in the AFPSLAI or to receive interest on his
alleged investments prior to such interest being earned.
Public officers are prohibited to receive gifts unless it is a) unsolicited; b) of a token value; and
c) customary to an occasion. In addition to these requirements, judges and justices should ensure
that they do not receive any gift which may reasonably be "perceived as intended to influence the
judge in the performance of judicial duties or otherwise give rise to an appearance of
partiality."28
There was no occasion for Justice Ong to receive a gift from Napoles. His having been one of the
justices that acquitted her from very serious charges in the Sandiganbayan raises a reasonable
belief · that such accommodation was the result of Napoles' influence during his performance of
his judicial duties. Justice Ong himself testified that the accommodations started when he met
with Napoles. According to him, Napoles thanked him while at the same time offered him
assistance regarding access to religious garments.
Furthermore, Luy testified that a) he knew that at least P100 million was being spent by Napoles
to ensure her acquittal, and (b) he personally prepared checks that were to be handed over to
Justice Ong.
Finally, the amount of the checks prepared by Luy for Justice Ong was definitely not a token
amount.
Laws and rules regulating gift-giving to public officers and judges

I disagree with the dissenting opinions that there has to be proof that Justice Ong committed an
act in consideration of these gifts. The mere receipt is in itself illegal and, thus, grave misconduct
was apparent on his part.
Several laws regulate a public officer's receipt of gifts:
The Revised Penal Code in Articles 210, 211, 211-A, and 212 provide:
Art. 210. Direct Bribery. - Any public officer who shall agree to perform an act constituting a
crime, in connection with the performance of his official duties, in consideration of any offer,
promise, gift or present received by such officer, personally or through the mediation of another,
shall suffer the penalty of prision mayor in its medium and maximum periods and a fine of not
less than three times the value of the .gift, in addition to the penalty corresponding to the crime
agreed upon, if the same shall have been committed.
If the gift was accepted by the officer. in consideration of the execution of an act which does not
constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in
the preceding paragraph; and if said act shall not have been accomplished, the officer shall suffer
the penalties of prision correccional in its medium period and a fine of not less than twice the
value of such gift.
If the object for which the gift was received or promised was to make the public officer refrain
from doing something which it was his official duty to do, he shall suffer the penalties of prision
correccional in its maximum period to prision mayor in its minimum period and a fine of not less
than three times the v.alue of such gift.
In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer the
penalty of special temporary disqualification.
The provisions contained in the preceding paragraphs shall be made applicable to assessors,
arbitrators, appraisal and claim commissioners, experts or any other persons performing public
duties.
Art. 211. Indirect bribery. - The penalties of prision correccional in its medium and maximum
periods, suspension and public censure shall be imposed upon any public officer who shall
accept gifts offered to him by reason of his office.
Art. 211"-A. Qualified Bribery. - If any public officer is entrusted with law enforcement and he
refrains from arresting or prosecuting an offender who has comni.itted a crime punishable by
reclusion perpetua and/or death in consideration of any offer, promise, gift or present, he shall
suffer the penalty for the offense which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of
death.
Art. 212. Corruption of' Public Officials. – The same penalties imposed upon the officer
corrupted, except those of disqualification and suspension, shall be imposed upon any person
who shall have made the offers or promises or given the gifts or presents as described in the
preceding articles. (Emphasis supplied)
Direct bribery requires proof that the public officer agrees to commit or refrain to do an act "in
consideration of any offer, promise, gift or present" which he· receives directly or indirectly.
Indirect bribery is committed when the public officer accepts a gift "offered to him by reason of
his office."
Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) added to the acts proscribed in
relation to gift-giving. Thus:
Section 3. Corrupt practices of public officers.— In addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:
....
(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or
benefit, for himself or for any other person, in connection with any contract or transaction
between the Government and any other party, wherein the public officer in his official
capacity has to intervene under the law.
(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or
material benefit, for himself or for another, from a11y person for whom the public
officer, in any mam1er or capacity, has secured or obtained, or will secure or obtain, any
Government permit or license, in consideration for the help given or to be given, without
prejudice to Section thirteen of this Act. (d) Accepting· or having any member of his
family accept employment in a private enterprise which has pending official business
with him during the tendency thereof or within one year after its termination.
The Anti-Graft and Corrupt Practices Act added the – prohibition against "directly or indirectly
requesting" gifts, presents, shares, percentages, and other benefits in connection with the work of
a public officer. The scope of work that will be done by the public officer for the illicit
consideration includes "contracts or transactions," granting of "permits and licenses," or any
other governmental act where "the public officer in his official capacity has to intervene under
the law."
Republic Act No. 3019 added soliciting for others, including members of the family of the public
officer. Republic Act No. 6713 or the Code of Conduct and Ethic.al Standards for Public
Officials and Employees further refined the proscriptions through the following provisions:
Section 3. Definition of Terms. - ...

(c) "Gift" refers to a thing or a right disposed of gratuitously, or any act or liberality, in
favor of another who accept it, and shall include a simulated sale or an ostensibly onerous
disposition thereof. It shall not include an unsolicited gift of nominal or insignificant
value not given in anticipation of, or in exchange for, a favor from a public official or
employee.
(d) "Receiving any gift" includes the act of accepting, directly or indirectly, a gift from a
person other than a member of his family or relative as defined in this Act, even on the
occasion of a family celebratfon or national festivity like Christmas, if the value of the
gift is neither nominal nor insignificant, or the gift is given in anticipation of, or in
exchange for, a favor.
....
Section. ·7. Prohibited Acts and Transactions. - In addition to acts and omissions of public
officials and employees now prescribed in the Constitution and existing laws, the following shall
constitute prohibited acts· and transactions of any public official and employee and are hereby
declared to be unlawful:
....
(d) Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or
accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of
monetary value from any person in tlze course of their official duties or in connection
with any operation being regulated by, or any transaction which may be affected by the
functions of their office. (Emphasis supplied)
Republic Act No. 6713 expanded the concept of a "gift" to include "a thing or a right disposed of
gratuitously, or any act or liberality, in favor of another who accepts it, and shall include a
simulated sale or an ostensibly onerous disposition thereof." Access to use of religious garments
is an act of liberality. The receipt of interest before it is earned is a "gift" not only because it is a
"thing or a right disposed of gratuitously" but also because it is likewise an act of liberality.
Republic Act No. 6713 expressly excluded an "unsolicited gift of nominal or insignificant value
not given in anticipation of, or in exchange for, a favor from a public official or employee."
Finally, Presidential Decree No. 46, which is still in effect, provides:
WHEREAS, under existing laws and the Civil Service Rules, it is prohibited to receive, directly
or indirectly, any gift, present or any other form of benefit in the course of official duties;
WHEREAS, it is believed necessary to put more teeth to existing laws and regulations to wipe
out all conceivable forms of graft and corruption in the public service, the members of which
should not only be honest but above suspicion and reproach; and
WHEREAS, the stoppage of the practice of gift-giving to government men is a concrete step in
the administration program of reforms for the development of new moral values in the social
structure of the country, one of the main objectives of the New Society;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, ... do hereby
make it punishable for any public official or employee, whether of the national or local
governments, to receive, directly or indirectly, and for private persons to give, or offer to give,
any gift, present or other valuable thing on any occasion, including Christmas, when such gift,
present or other valuable thing is given by reason of his official position, regardless of whether
or not the same is for past favors or the giver hopes or expects to receive a Javor or better
treatment in the future from the public official or employee concerned in the discharge of his
official functions. Included within the prohibition is the throwing of parties or entertainments in
honor of the official or employee or of his immediate relatives.
For violation of this Decree the penalty of imprisonment for not less than one (1) year nor more
than five (5) years and perpetual disqualification from public office shall be imposed. The
official or employee concerned shall likewise be subject to administrative disciplinary action
and, if found guilty, shall be meted out the penalty of suspension or removal, depending on the
seriousness of the offense. (Emphasis supplied)
The law proscribes the receipt of gifts before or after the official act or omission. It punishes the
receipt of gifts "regardless of whether or not the same is for past favors or the giver hopes or
expects to receive· a favor or better treatment in the future from the public official or employee
concerned in the discharge of his official functions." This law also expressly proscribes "the
throwing of parties or entertainments" by others "in honor of the official or employee or of his
immediate relatives." Even repairing the automobile of a public officer for free is recognized as
another form of gift.29
In addition to these statutory proscriptions, Canon 4 of the Code of Judicial Conduct clarifies the
rules with respect to judges and justices receiving gifts. Thus:
activities.
SEC. 2. As a subject of constant public scrutiny, judges must accept personal restrictions that
might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In
particular, judges shall conduct themselves in a way that is consistent with the dignity of the
judicial office.
....
SEC. 13. Judges and members of their families shall neither ask for, nor accept, any gift, bequest,
loan or favor in relation to anything done or to be done or omitted to be done by him or her in
connection with the performance of judicial duties.
SEC. 14. Judges shall not knowingly permit court staff or others subject to their influence,
direction or authority, to ask for, or accept, any gift, bequest, loan or favor in relation to anything
done or to be done or omitted to be done in connection with their duties or functions.
SEC. 15. Subject to law and to any legal requirements of public disclosure, judges may receive a
token gift, award or benefit as appropriate to the occasion on which it is made provided that such
gift, award or benefit might not reasonably be perceived as intended to influence the judge in the
performance of judicial duties or otherwise give rise to an appearance of partiality.
Judicial propriety requires more from judges and justices than with other public officers. Public
confidence in rule of law requires that all basis for doubt with respect to the independence and
integrity of the judicial profession should be avoided. Canon 3, Section 2 of the Code of Judicial
Conduct requires judges to "ensure that his or her conduct, both in and out of court, maintains
and enhances the confidence of the public, the legal profession and litigants in the impartiality of
the judge and of the judiciary." Judges and justices should "ensure that not only is their conduct
above reproach, but that it is perceived to be so in the view of a reasonable observer."30 As this
court previously required:
. . . .a judge's official conduct and his behavior in the performance of judicial duties should be
free from the appearance of impropriety and must be beyond reproach. One who occupies an
exalted position in the administration of justice must pay a high price for the honor bestowed
upon him, for his private as well as his official conduct must at all times be free from the
appearance of impropriety. Because appearance. is as important as reality in the performance of
judicial functions, like Caesar's wife, a judge must not only be pure but also beyond suspicion. A
judge has the duty to not only render a just and impartial decision, but also render it in such a
manner as to be free from any suspicion as to its fairness and impartiality, and also as to the
judge's integrity.
It is obvious, therefore, that while ·judges should possess proficiency in law in order that they
can competently construe and enforce the law, it is more important that they should act and
behave in such a manner that the parties before them should have confidence in their
impartiality.31
In summary: Judges and justices cannot accept gifts, favors, and accommodations.
The only exception under existing law is that a judge or justice may only receive a gift if:
1) it is of nominal value or "a token gift, award or benefit";
2) the gift and its value are "appropriate for the occasion on which it is made"· and
3) the act of giving and accepting the gift, the gift itself, or the value of such gift "might
not reasonably be perceived as intended to influence the judge in the performance of
judicial duties or otherwise give rise to an appearance of partiality."32
If any of these requirements are not present, the judge or justice commits a ·serious breach of
both law and the canons. Since it is a violation of law and it affects the public's perception of the
fundamental values of integrity and independence of the judiciary, it amounts to a grave
misconduct punishable by dismissal from the service
We have penalized several judges who have asked favors from lawyers and litigants who
appeared before them. This court dismissed a judge who solicited "retirement money" and food
for his court staff's Christmas party.33 That judge solicited from a litigant with a pending case in
his court. This court also ·reprimanded a judge who solicited and received court office
equipment from a litigant.34 We also warned and fined a judge for soliciting and receiving
contributions for a religious celebration and barangay fiesta.35 While this court gave merit to the
judge's defense that she was merely "following-up" on the solicitation letter signed by the parish
priest, this court stated that the judge going to the prosecutor's office to receive the donations
from lawyers "does not bode well for the image of the judiciary."36 In that case, we stated:
Respondent's act of proceeding to the Prosecutor's Office under the guise of soliciting for a
religious cause betrays not only her lack of maturity as a judge but also a lack of understanding
of her vital role. as an impartial dispenser of justice, held in high esteem and respect by the local
community, which must be preserved at all times. It spawns the impression that she was using
her office to unduly influence or pressure Atty. Yruma, a private lawyer appearing before her
sala, and Prosecutor Diaz into donating money through her charismatic group for religious
purposes.
....
Respondent's act discloses a deficiency in prudence and discretion that a member of the judiciary
must exercise in the performance of his official functions and of his activities as a private
individual.37
Justice Ong's receipt of a religious favor from Napoles is improper
It was improper for Justice Ong to receive a favor from Napoles. Napoles offered it to him on the
same occasion she thanked him for her acquittal. Justice Ong himself narrated:
Ms. Napoles approached me and introduced herself. She started the conversation talking to me
partly in Chinese because partly, I can speak Chinese language, and then, on that occasion, she
was thanking me for her acquittal. Your honor if you may allow me. Alam niyo naman may
kayabangan ako. Sabi ko, you should not thank me. y OU should thank their evidence. That is
what I do in cases wherein the accused would thank me for their acquittal and I tell them, do not
thank the court for your acquittal. You. should thank your evidence. It is your evidence that sets
you free. In fact, I told her that if only there are enough evidence that would warrant her
conviction, she would be convicted.38 (Emphasis supplied)
It was after this conversation when Napoles began talking about her work with churches and
offered Justice Ong the opportunity to wear the robe of the Black Nazarene. This gives us the
impression that Justice Ong accepted the favor in return for the acquittal.
The height of impropriety can be seen in the manner Napoles arranged for Justice Ong to meet
Monsignor Ramirez, the parish priest of Quiapo Church. The meeting occurred on a Sunday.39
Sunday is sacred for Catholics, a day when all priests are busy. Justice Ong had the luxury of
being picked up by Napoles' driver. There was a private mass officiated by Monsignor Ramirez
and attended by several Chinese individuals.40 During the lunch after the mass, Napoles even
made sure that Justice Ong was seated next to the monsignor.41 This meeting in itself is already
a huge favor for Justice Ong.
Justice Ong felt that Napoles "was instrumental in successfully paving the way ... to be able to do
something that was very important to him."42 It did not bother him that Napoles, who provided
this "favor and accomonodation to him, was a winning litigant in a previous case that his
Sandiganbayan Division decided.
Justice Ong's excuse for using Napoles to arrange for the wearing of the robe is that he did not
know that it could be done until he met Napoles.
Justice Gutierrez
What I am thinking Justice, as a Justice holding a very high position, could it not be possible for
you to .iust go to the Church of Quiapo and ask the priest there to help you or assist you, no
longer-through Ms. Napoles?
....
Because you have been suffering from that ailment, mass or whatever, and that you are a devotee
of the Black Nazarene. [Y]ou could have gone to the Office of the priest there and had that
request for you to wear that robe of the [Black] Nazarene?
Justice Ong
Hindi ko po alam na may ganyan, your honor, I was only told by Napoles during that
conversation. Had I known that, siguro po pwede ko pong gawin. Had I known that there is such
a robe, maybe I will do that.43 (Emphasis supplied)
Justice Ong's reasoning is flimsy to say the least. It is insulting to his colleagues in this court who
are aware of the possibilities of ac:cess to such religious garments. Justice Ong knew about the
robe when Napoles told him about it. He should not have accepted Napoles' offer to arrange the
wearing of the robe. As Justice Sandoval-Gutierrez suggested, he should have gone to the parish
priest directly instead of risking the appearance of impropriety: Even his god would have
frowned at the use of religious symbols for an immoral end.
In Felongco v. Dictado,44 a judge received free bus tickets from a litigant bus company. The
judge explained that the vice president of the bus company was his cousin and that in the civil
case he was trying, the bus company lost.45 However, this court still found him guilty of grave
misconduct. Due to this and his other indiscretions, he was dismissed from service.46 A religious
favor might not be as tangible as bus tickets, but if a judge was dismissed for accepting bus
tickets from a losing litigant, a Sandiganbayan justice who accepted a favor from a winning
litigant deserves a similar penalty.
By accepting the favor, Justice Ong created an impression of partiality, contrary to Canon 4,
Section 15 of the Code of Judicial Conduct. If he really wanted to wear the Black Nazarene robe
after Napoles had told him that it was possible, he would have pursued it himself, and not accept
the offer of Napoles to do it for him. It does not appear that there was no other way for him to
touch what he considered as sacred garments except to work through a person he acquitted.
Justice Ong's continued fraternization with Napoles constitutes another-impropriety
It was improper for Justice Ong to visit Janet Lim Napoles on two separate occasions just to·
thank her for the religious favor he received from her.
It seems contrary to human experience that a Sandiganbayan justice will visit a mere
acquaintance (not a close friend) just to. thank the acquaintance for a favor. The second visit of
Justice Ong makes it more suspicious that his visits were not merely for "chit-chat and small
talk."47
Justice Ong admitted to continuously socializing with a former litigant and even going to the
extent of visiting her in her office. If they are not friends, as he alleged, and he was merely doing
it to not seem as "walang kwentang tao,"48 then he essentially admitted to socializing with a
former litigant.
To be beholden to the impressions of an acquaintance as a result of doing what is right

rather·than to be concerned about maintaining the public trust does not speak well of Justice
Ong's character. The Code of Judicial Conduct is not subservient to his interpretation of social
customs.· Mas nagiging "walang kwenta " ang isang mahistrado kapag nalalagay sa alanganin
ang buong hudikatura dahil bumibisita siya sa isang akusado sa isang kasong kanyang
hinusgahan.
Besides, the courage required to be ·able to comply with the required integrity of judges and
justices also means the courage to face a public which may misunderstand his compliance with
the rules. Rather than succumb to this misunderstanding, Justice Ong should have behaved as a
justice should and educated others who would not understand why the rules are what they are.
Just like when receiving gifts, the Code of Judicial Conduct frowns upon judges fraternizing with
litigants. It is considered an impropriety. This court previously stated, "[a] judge is not only
required to be impartial; he must appear to be impartial. Fraternizing with litigants tarnishes this
appearance."49
The constant association with Napoles creates a perception of past bias and partiality. Judges in
the past always use the excuse that those litigants or counsels that they fraternized with lost in
their cases. Even then, this court proceeded to penalize these judges.50
Fraternizing with litigants after the · finality of their cases is no different, especially if the judge
is fraternizing with the winning litigant. It appears from a reasonable observer that the winning
litigant only won because of her camaraderie with the judge. It tends to exhibit the partiality of a
judge, which violates Canon 3 of the Code of Judicial Conduct on impartiality. Section 2 of
Canon 3 states that "[j]udges shall ensure that his or her conduct, both in and out of court,
maintains and enhances the confidence of the public, the legal profession and litigants in the
impartiality of the judge and of the judiciary."
Both Luy and Sula witnessed the visits of Justice Ong to Napoles. This affirmed Napoles'
statement to them that her connection in the Sandiganbayan was Justice Ong. Whether or not
Justice Ong brokered th~ fixing of the Kevlar case may not be relevant. The visits were not made
by Napoles. Justice Ong himself went to the condominium unit of Napoles who was a former
accused. This, in itself, is an impropriety.
Justice Ong's receipt of the eleven (11) checks from Napoles is another impropriety
Financial accommodations are considered as "gifts" on the basis of law and the Code of Judicial
Conduct.
The opportunity to invest in a financial instrument with low risks but high returns is a favor.
Advancing interest earnings not yet earned on the investment is another favor. Being able to
invest in a fund without being qualified to do so is yet another favor received by Justice Ong.
Benhur Luy testified that he prepared the checks to advance the interest earnings of Justice Ong
in his AFPSLAI deposit. The checks amounted to approximately P3 million.
There was substantial evidence to support the conclusion that Justice Ong received these checks
from Napoles. Substantial evidence is "such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion."51
Luy attested that he saw Justice Ong visit Napoles. Napoles informed Luy that they would help
Justice Ong invest in AFPSLAI. Napoles entertained Justice Ong in a different unit of the
building (Unit 2501) from where Luy was holding office (Unit 2502). Napoles then went to Luy
and instructed him to issue the checks for Justice Ong. Luy even remembered asking Napoles if
he should put Justice Ong's name as payee. Napoles had to confirm with Justice Ong before
instructing Luy to have the checks paid to cash.
Even if Luy was not at Unit 2501 when Napoles handed the checks to Justice. Ong, there could
be no other conclusion to be derived from the facts. It appears that Napoles gave those eleven
(11) checks to Justice Ong in advance of his interest earnings to his AFPSLAI deposit.
Justice Sandoval-Gutierrez characterized that Luy testified in a "candid, straightforward and

categorical manner."52 This narration was corroborated by Justice Ong's admission that he
visited Napoles on two occasions. These pieces of evidence, taken together, lead to no other
conclusion but that Justice Ong received eleven (11) checks from Napoles, a former litigant in
his court.
Justice Ong argued that it was impossible for him to invest P25.5 million with the AFPSLAI. He
argued that the AFPSLAI rules only allow for a maximum deposit of P30,000.00 per quarter and
a maximum deposit per member of P3 million.
This argument does not cast serious doubt on Luy's testimony because it is possible that Napoles
and AFPSLAI have a special and illicit arrangement. This provides an explanation why Napoles
told Luy that she would deposit Justice Ong's check in her personal account. In addition, Justice
Ong's argument omitted the fact that those limitations for the maximum deposit in AFPSLAI
only refer to a capital contribution account.53
The AFPSLAI also offers a deposit product referred to as a savings deposit account. The latter
account type earns at a lower interest rate per annum, but the product does not have deposit
restrictions.
Currently, AFPSLAI membership is exclusive to current and retired and active ~niformed
personnel of the Philippine National Police, the Armed Forces of the Philippines, the Bureau of
Jail Management and Penology, and the Bureau of Fire Protection.54 By allowing Napoles to
invest on his behalf, Justice Ong indirectly violated the rules of the AFPSLAI. This is another
unacceptable impropriety that Justice Ong committed.
It is difficult to understand why Justice Ong would choose Napoles to broker his investments.
Assuming that he had P25.5 million, legitimate investment bankers and financial managers will
easily find products that are as competitive as the AFPSLAI capital contribution account for that
amount of money. Justice Ong could have invested that amount of money in the stock market,
bonds market, real estate, hedge funds, and mutual funds under reasonable tenns and conditions.
Justice Ong should have avoided the impropriety of having a former litigant – one whom he.
voted to acquit - manage his money. Risking public condemnation and loss of public trust simply
because he desired an interest rate of 13% and getting the interest income in advance is
inexcusable. Canon 4, Section 1 of the Code of Professional Responsibility states that "judges
must accept personal restrictions that might be viewed as burdensome by the ordinary citizen ....
" One of these personal .restrictions is choosing financial intermediaries. Judges and justices
should consciously avoid availing financial accommodations from their former litigants, even if
it is not as apparent as receiving ·money. Receiving financial accommodations show impropriety
and casts doubts on judges' impartiality.
In Guinto v. Flores,55 this court said:
Respondent judge's conduct of "borrowing" money from litigants in his sala was highly improper
and warrants extreme sanction from this Court. His insistence that the money he got from
Manalastas was merely a "loan" taxes our credulity. In a recent case, we ruled that receiving
money from. litigants unavoidably creates the impression that litigants can facilitate the
favorable resolution of cases pending before the courts.
A judge should impress upon the public that legal issues are resolved based solely on the facts
and the laws applicable. Being at the forefront of the judicial system, respondent judge should
have avoided mpropriety and the appearance of impropriety in his behavior so as not to corrode
the people's respect for the law and judicial institutions.56
I disagree with the dissenting opinions that focus on the alleged lack of evidence connecting the
issuance of the checks to the Kevlar case. This is not relevant to concluding that Justice Ong
committed an unlawful act violative of the Code of Judicial Conduct.
In Verginesa-Suarez v. Dilag,57 it was alleged by several anonymous complainants that Judge

Renato Dilag was accepting bribes to render favorable decisions in declaration of nullity of
marriage cases. A judicial audit was conducted, and it was discovered that a number of the
declaration of nullity of marriage cases were decided with irregularities.58 The Investigatil'lg
Justice found that the evidence on record was not enough to prove graft and corruption. The
allegations of pay-offs were merely hearsay. However, this court dismissed Judge Di lag from
service for violations of the Code of Judicial Conduct, specifically for violating the canons on
impartiality and impropriety. This court stated:
[W]hile not conclusively and clearly proving the charge of graft and corruption, the same casts a
cloud of suspicion upon the integrity, impartiality and propriety of which respondent Judge is
expected to possess and manifest. These requirements are concepts of the mind which can only
be manifested through actuations of. a magistrate. Thus, as explicitly worded in the New Code of
Judicial Conduct, a judge must not merely possess these requirements but he must be also be
seen and perceived to be .such. The judiciary is the bastion of justice, fairness and equity.
Certainly, it cannot afford to have erring magistrates who will only tarnish its image rather than
maintain and preserve the same.59
This reasoning is applicable to this case.
A cursory review of the Kevlar case, however, reveals some questions that raise reasonable
suspicions that some irregularities have happened.
Pinpointing the irregularities in the Kevlar case is not in exercise of our appellate jurisdiction. It
is similar to the judicial audit conducted in the Verginesa-Suarez. It will not affect the rights of
the parties to a final judgment but should assist this court assess whether there was abuse of
discretion by a trial judge or a justice of the. Sandiganbayan. Abuse of discretion can provide the
context for charges of grave misconduct or improprieties.
The offense charged was a complex crime. The acts consist of falsification of a series of
documents in order to make it appear that the government purchased five hundred (500) Kevlar
helmets for the Marines. However, no helmets were initially delivered. As charged, falsification
was committed as a necessary means to commit the crime of malversation.
The evidence presented during trial shows that all the requirements of a complex crime were
proven beyond reasonable doubt. To recall:
Under A1iicle 48 of the Revised ·Penal Code, a complex crime refers to (1) the commission of at
least two grave or less grave felonies that must both (or all) be the result of a single act, or (2)
one offense must be a necessary means for committing the other (or others). Negatively put,
there is no complex crime when (1) two or more crimes are committed, but not by a single act; or
(2) committing one crime is not a necessary means for comn:itting the other (or others).60
However, the Divis.ion of the Sandiganbayan61 participated in by Justice Ong treated
malversation and falsification of public documents as two separate crimes that must be pleaded
and proved, without taking into account the relation between the two crimes.
This is strange because the same Division of the Sandiganbayan found that the evidence
presented supports the finding that malversation indeed happened. However, the Division
reasoned that since the accountable officer, Commander Loyola, cannot be fau)ted for relying on
the supporting documents in the disbursement voucher, the acts constituting the malversation
could no longer be attributed to anyone. This is clearly non-sequitur.
This is also contrary to our doctrines. In People v. Enfermo,62 this court ruled:
[O]ur Supreme Court has ruled that to justify convicti.on for malversation of public funds, the
prosecution has only to prove that the accused received public funds or property and that he
could not account for them or did not have them in his possession and could not give a
reasonable excuse for the disappearance of the same. An accountable public officer may be
convicted of malversation even if there is no direct evidence of misappropriation and the only
evidence is that there is a shortage in his accounts which he has not been able to explain
satisfactorily. Such conversion of public funds must be affirmatively proved, whether by direct
evidence or by the production of facts from which conversion necessarily follows.63
Even assuming that Commander Loyola was unaware that the documents he relied on were
falsified, the Sandiganbayan failed to take into account that malversation may also be committed
through negligence:
Malversation may be committed either through a positive act of misappropriation of public funds
or property or passively through negligence by allowing another to commit such
misappropriatio'n. To sustain a charge of malversation, there must either be criminal intent or
criminal negligence and while the prevailing facts of a case may not show that deceit attended
the commission of the offense, it will not preclude the reception of evidence to prove the
existence of negligence because both are equally punishable in Article 217 of the Revised Penal
Code.
More pointedly, the felony involves breach of public trust, and whether it is committed through
deceit or negligence, the law makes it punishable and prescribes a uniform penalty therefor. Even
when the information charges willful malversation, conviction for malversation through
negligence may still be adjudged if the evidence ultimately proves that mode of commission of
the offense.64
Having, thus, disposed of the charge for malversation, the Sandiganbayan focused only on the
lighter offense of falsification.
The Sandiganbayan found that there was falsification of public documents when the accused
public officers certified that Napoles already delivered the Kevlar helmets when, in truth, she did
not.65 The certification issued by Commander Loyola was made allegedly to facilitate the
encashment of the checks and which were deposited in Napoles' account.66
Isolating the malversation charge from the falsification charge paved the way for Napoles'
acquittal. She was a critical link in the charge for malversation because she was the point-person
of the winning bidders and the Philippine Marine Corps.67 The Sandiganbayan recognized the
reports naming Napoles.68 Surprisingly, they chose to disregard these reports since they
dismissed the malversation charge for everyone.
The Fourth Division of the Sandiganbayan ruled that the evidence showed that fomieen (14)
government checks were issued and deposited in Napoles' name. Surprisingly, the same Division
of the Sandiganbayan was convinced that this was not enough to show that she participated in the
falsification of the public documents. In spite of the checks, it still concluded that there was no
evidence to support that the winning bidders were merely dummies of Napoles. In spite of these
checks and the finding that these were deposited in her account, the same Division found that she
could not be treated as a conspirator. Finally, completing its unorthodox conclusions, the
Division of Justice Ong concluded that since Napoles did not sign any of the falsified documents,
she was acquitted for the falsification charge.
The irregularities in the Sandiganbayan decision coupled with the cloud of suspicion cast by
Justice Ong's acquaintance with Napoles erode the integrity and credibility of his court. Any
observer with the required probity can justifiably and reasonably conclude that the irregularities
in the Kevlar case were deliberate. It is not merely an error of judgment made in good faith if we
consider that the justices that participated in the decision are not only competent but are experts
on the rules of evidence, on deriving inference from the evidence, and on the law from which
they are.required to render fair judgments.
Even if Justice Jose Hernandez was the ponente of the Kevlar case, Justice Ong still participated
in the case. The case was decided by a collegiate body, hence, we can presume that any
irregularity should be attributed to the members of the collegiate body ·and not only to the
ponente. It is contrary to public policy for this court to assume that justices of the Fourth
Division of the Sandiganbayan concur with decisions that they have not read, understood, and
studied.
In addition, it was Justice Ong who was seen in the company of Napoles. There are no reports on
the relationship of Napoles to Justice Hernandez. Justice Ong's actions after his participation in
the deliberations of the Kevlar case rouse the suspicion of this court and transgress the Code of
Judicial Conduct.
It has been an accepted doctrine that judges should not be punished for errors in their judgment,
if they were made in good faith.69 Errors per se should not be subject to administrative penalties
against the deciding judge. However, there will be administrative sapctions when judicial errors
are "tainted with fraud, dishonesty, gross ignorance, bad faith or deliberate intent to do an
injustice."70
When a Sandiganbayan Division renders a highly irregular decision and one of the
Division'sjustices continuously associates with the winning litigant, the judicial error becomes
tainted with bad faith. It becomes conduct inconsistent with the ideals of the office of an
Associate Justice of the Sandiganbayan. It deserves administrative sanction to· the highest
degree. Otherwise, it will jeopardize the integrity of the courts as a whole.
Justice Ong acting as the "connection" of Napoles is supported by independently relevant

statements
It was improper for Justice Ong to ·appear to be the "connection" of Napoles to the
Sandiganbayan.
Justices Perez, Bersamin, and Reyes are all of the belief that Luy and Sula were testifying on
matters not of their personal knowledge. Hence, in their view, Luy's and Sula's testimonies are
entirely based on hearsay.
Luy testified on a ledger for the Sandiganbayan during the pendency of the Kev(ar case. Napoles
also told him that she paid Justice Ong for the results of that case. However, Luy was not able to
see if any of the items in the ledger were attributed to Justice Ong.71
Sula knew from Napoles that Justice Ong helped them in their Sandiganbayan case.72 However,
when the PDAF scandal broke out, Napoles told Sula that they would not approach Justice Ong
for help because his "talent fee" was too high.73
Luy also testified that Napoles instructed him to prepare eleven (11) checks for Justice Ong, but
he was not able to witness Napoles turning over those checks to Justice Ong.
I disagree with the view that the testimonies of Luy and Sula were hearsay. Even if Luy and Sula
testified on matters that Napoles imparted to them in confidence, these statements do not
necessarily constitute hearsay; rather, they are independently relevant statements. The value of
these statements .depends on the fact that it was supposed to prove and should be taken in
context.
Independently relevant statements are considered exceptions to the hearsay rule:
Under the doctrine of independently relevant statements, regardless of their truth or falsity, the
fact that such statements have been made is relevant. The hearsay rule does not apply, and the
statements are admissible as evidence. Evidence as to the making of such statement is not
secondary but primary, for the statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such a fact.74 (Emphasis supplied, citation
omitted)
In addition, "[e]vidence as to the making of such statements is not secondary but primary, for in
itself it (a) constitutes a fact in is.sue or (b) is circumstantially relevant to the existence of such
fact."75
The testimonies of Luy and Sula pertaining to Napoles' statements on her supposed connection
with Justice Ong constitute independently relevant statements. They are circumstantially relevant
to the administrative charges against him, regardless of the truth or falsity of Napoles' utterances
to them.
While Luy and Sula do not have personal knowledge of Napoles' actual dealings with Justice
Ong, their testimonies prove that Napoles bragged about her connection with Justice Ong.
Evidence tending to prove that Napoles indeed mentioned Justice Ong as a "connect" should be
admissible and credible evidence against Justice Ong in this administrative case.
The following testimonies should be considered by this court in establishing the fact that Justice
Ong was improperly associated and connected with Napoles:
1) Luy's testimony stating his personal knowledge of a) his preparation of the eleven (11)
checks allegedly issued by Napoles to Justice Ong as advance for the latter's deposit in
AFPSLAI, b) the ledger listing Napoles' alleged Sandiganbayan expenses, and c) Justice
Ong's visit to Napoles' office;
2) Sula's testimony stating her personal knowledge of Justice Ong's visit to Napoles'
office; and
3) Justice Ong's own admission that he personally met with Napoles twice.
This court can also take judicial notice of the fact that Napoles has been charged for numerous
cases involving the PDAF together with, among other high-ranking officials, Senator Estrada.
Justice Ong admits to a friendship with Senator Jinggoy Estrada. This relationship is supported
by the picture showing Justice Ong, Senator Estrada, and Napoles posing together in what
appears to be a social gathering. If Justice Ong is to be believed, he claims that it was Senator
Jinggoy Estrada who introduced him – formally – to Napoles.
These pieces of evidence tend to prove that Napoles herself mentioned to her trusted staff that
she had connections with Justice Ong, particularly for the fixing of the Kevlar case. These
statements are admissible and meet the requirements of credibility for the purpose of assessing
Justice Ong's fitness to continue as a member of the bench.
Justice Ong would rather call attention to minor inconsistencies in the statements of the
witnesses to place them out of their context. He argues that his favorite food is Japanese,76 and
not Chinese, as Luy suggested in his testimony.77 Just because Luy got his favorite food wrong
does not cast doubt as to the rest of his testimony. Luy never stated that he knew Justice Ong
well. He was merely narrating his recollection of his visits to Napoles.
Justice Ong also points out that Sula's testimony that Justice Ong is the "connect" of Napoles in
the Sandiganbayan runs contrary to her statement that Napoles told her once that t~ey would not
fix the PDAF cases with Justice Ong because his "talent fee" is too high. These statements are
not mutually exclusive. The statement of Napoles that Justice Ong's "talent fee" is high already
suggests that she had previous dealings with him directly or indirectly. Any transaction involving
a "talent fee" already demeans the profession of all judges and justices.
The minor inconsistencies that Justice Ong points out do not cast doubt as to the credibility .of
the statements made by Luy and Sula. Rather, they show that such statements were not rehearsed
or contrived. For so long as the principal content remains consistent, minor inconsistencies in the
/ details of the statement which do not cast doubt on the purpose for which they are presented
supports the credibility of such evidence.
Justice Ong's conduct prejudiced the best interest of the courts
Justice Ong's improprieties do not only constitute grave misconduct, they are also conduct
prejudicial to the best interest of service.
Conduct prejudicial to the best interest of service is subject to disciplinary action under the
Administrative Code.78
Aries Rufo, a journalist who is a keen observer of the judiciary, mentioned in his testimony:
Judges and Justices ... should insulate themselves from situations that could compromise their
integrity. Without Napoles in the picture, I wouid have been uncomfortable seeing Justice Ong
with Jinggoy considering that Senator Jinggoy was tried before at the Sandiganbayan for
plunder. He is still an active Justice and an ordinary person might conclude that, you know, he
could favor him in cases if there are.
An ordinary private citizen testified that he perceives Justice Ong as someone who is partial.
Such perception is not unique or isolated. It is enough to prejudice the service that the judiciary
is providing the public.
A reasonable public perception of partiality of one justice with good basis tarnishes the entire
Sandiganbayan and the judiciary in general. It is for this reason that we promulgated Canon 3,
Section 2 of the Code of Judicial Conduct, to· wit:
SEC. 2. Judges. shall ensure that his or her conduct, both in and out of court, maintains and
enlzances the confidence of the public, the legal profession and litigants in the impartiality of the
judge and of the judiciary. (Emphasis supplied)
In Tan v. Pacuribot:79
We have repeatedly reminded members of the Judiciary to so conduct themselves as to be

beyond reprodch and suspicion, and to be fi'ee from any appearance of impropriety in their
personal behavior, not only in the discharge of their official duties but also in their everyday
lives.
For no position exacts a greater demand on the moral righteousness and uprightness of an
individual than a seat in the Judiciary. Judges are mandated to maintain good moral character and
are at all times expected to observe irreproachable behavior so as not to outrage public
decency.80
II
Dishonesty
Dishonesty is "the concealment of truth in a matter of fact relevant to one's office or connected
with the performance of his duties. It is an absence of integrity, a disposition to betray, cheat,
deceive or defraud, bad faith."81 Dishonesty is also the "disposition to lie, cheat, deceive, or
defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle;
lack of fairness and straightforwardness; disposition to defraud, deceive or betray."82
Dishonesty need not be an outright lie. It can consist of the concealment of the truth. The truth
can be concealed not only by negating the truth. Under certain circumstances, facts can be
concealed by one who does not say anything. The truth can be denied by uttering statements that
make a contrary reality seem like the truth.
Truth can also be denied by slanting the facts, i.e., refocusing events on a detail that is irrelevant
or stating only a partial truth. Dishonesty may be the conclusion from an examination of a series
of actions. Sometimes, individuals can utter independently true statements, but when taken
together, would create a context that is contrary to the truth.
Justice Ong committed dishonest acts in concealing his .association with Napoles.
Justice Ong misrepresented his affiliation with Napoles when Aries Rufo confronted him with
the photograph of him with Senator Estrada and Napoles. Before the Investigating Justice, Rufo
testified:
Q Did you ask why Janet Napoles was there?
A Yes, I asked him and he said he doesn't recognize her because it appears that she did not
appear in the Kevlar case. He said that...
Q You mean, he did not recognize who this lady is?
A Yes, Justice.
Q When you reminded him, did he finally recognize her as Janet Napoles?
A There was no categorical statement that he knew that it was Janet Napoles. I got the sense that
he knew her because of the stories and the photos that. . . .
....
I asked him what brought about the photograph. He said it must have been in one of those
instances where a guest would like to have his· or her photo taken with celebrities or with other
public figures and he also stated it must have been when I asked him whether they are close or
not, he qualified the situation ... the photo, by saying that. 1t would have been different if he was
close to Napoles in that photo that would indicate that they were closed [sic] but the fact that
they were separated by Senator Jinggoy Estrada, it must have been the case where a person like
Janet Lim Napoles would want her photo taken with public figures.83
As a result of this conversation, Aries Rufo quoted Justice. Ong in his article: "I do not know her.
She did not appear in court. I think she had a waiver of appearance in court."84
The ponencia also points out that Justice Ong's dishonest act was contained in his letter to the
Chief Justice dated September 26, 2013. In that letter, he did not disclose that he visited Napoles'
office sometime in 2012.
In addition to the letter, Justice Ong's denial that he did not attend any party hosted by Napoles
was reiterated in his comment:
Justice Ong categorically states that he has never attended any party or social event or affair
hosted by Mrs. Napoles or her family, either before she had a case with his court, or while she
already had a pending case with his court, or at any time afterwards. This fact has now been
confirmed by Sula who never claimed that Justice Ong was a presenc.e or a fixture in any of the
parties or social events or affairs that were hosted by Mrs. Napoles.85
Justice Ong's representations constitute dishonesty that renders him administratively liable
Justices Perez and Reyes are of the belief that Justice Ong's acts do not constitute dishonesty.
They opine that Justice Ong's statements were taken out of context. According to them, in his
letter dated September 26, 2013, Justice Ong was only defending himself from the impression
created by the Rappler article that makes it seem that he was part of Napoles' social circle. At.
that time, he was not obi igated to disclose anything about the favor regarding the Black
Nazarene's robes or that he visited Napoles' office.
Justice Reyes also points out that during the investigation, Justice Ong readily admitted to having
associated with Napoles, which negates the finding that he intended to be dishonest in the letter
to the Chief Justice.
I disagree.
I believe that Justice Ong's actions show a disposition to deceive. His words lacked the integrity
and honesty we require from a Sandiganbayan justice. This is obvious if we take all his
statements in the proper context.
Before the investigation on these issues went full-scale, Justice Ong deliberately wanted to create
an impression that he was not associated with Napoles. This could be concluded from Aries
Rufo's narration of the interview that preceded the Rappler article. Napoles already had a
notorious reputation at that time, and an ordinary citizen would impulsively dissociate himself in
order to avoid being implicated by Napoles' notoriety.
However, Justice Ong is not an ordinary citizen. He is required by the Rules of Court and the
Code of Judicial Conduct to be honest in all his dealings.86 If he has stayed true to this Code, he
would not have had anything to conceal from the public. He would be able to face reporters and
confidently say that he had nothing to do with Napoles.
A specifically dishonest statement Justice Ong made during the Rappler interview was when
"[h]e said he 'would not be stupid enough' to be posing with Napoles tiad he known that she was
the respondent in the case previously handled by his division."
However, during his testimony last March 21, 2014, he revealed that during the first time he was
introduced to Napoles, Napoles thanked him for the Kevlar case acquittal. It is reasonable to
presume that the introduction occurred, as narrated by Justice Ong, prior to the picture-taking.
Thus, the statement made by Justice Ong to Rufo was an outright lie.
Another specifically dishonest statement of Justice Ong was made in his comment. He stated that
he never attended a social event or affair hosted by the Napoleses. It was to negate the statement
made in the Rappler article that "Napoles parties with anti-graft court justice." At that time,
Justice Ong just needed to address the fact that he was seen at the party of Senator Estrada,
which was also attended by Napoles. Hence, there is no inconsistency with· the truth (he and
Napoles were guests at Senator Estrada's party) and his statement in the comment (he was not a
guest at Napoles' party).
However, during the course of the investigation, Justice Ong admitted to attending an affair
where he was invited by Napoles. He attended a Eucharistic mass at a private residence. It is
difficult to deny that it was Napoles who hosted that affair. This conclusion is based on Justice
Ong's own narration. Napoles' driver picked him up. She seated him ·next to the Monsignor of
Quiapo Church. His admissions are inconsistent with his previous statements.
Even if we assume that Justice Ong was not dishonest solely on the basis of his letter to the Chief
Justice, he did commit dishonesty elsewhere. He committed dishonesty when he interacted with
the reporter. He continued his dishonesty when he was asked to comment on the statements made
during the Senate Blue Ribbon Committee investigation.
I disagree with some of my colleagues that his dishonesty was cured because he readily admitted
his association with Napoles during the investigation. It is easy to admit matters when already
confronted with so many pieces of evidence that cannot be denied. It does not wipe out his past
acts of dishonesty.
Justice Ong had the disposition to deceive the public by limiting his association with Napoles as
much as possible. His story accommodated more details as more facts emerged about his
association with Napoles.
When Aries Rufo only had a photo to confront Justice Ong, Justice Ong limited his association
with Napoles to the fact that they were both fattendees of Senator Estrada's party.
His narrative evolved after the picture had been published. He stated in the letter to the Chief
Justice that he did not know Napoles during the pendency of the Kevlar case.
On Marina Sula's testimony that she saw Justice Ong once in their office, he explained in his
comment dated November 21, 2013 the reason why Sula saw him there .. He narrated the
religious favor Napoles gave him and the need for him to personally thank Napoles in her office.
During the hearing on February 12, 2014, Benhur Luy stated that he saw Justice Ong twice in
Napoles' office. On March 21, 2014, when it was Justice Ong's turn to testify, his story evolved
once more to accommodate the second instance that Luy referred to by stating that he visited
Napoles' office twice to thank her for the religious favor.
Justice Ong's dishonest acts might not be as apparent as irregularly punching on the bundy
clock,87 or misrepresenting facts in the personal data sheet for civil service qualifications.88
However, his acts are still dishonest and show his disposition to betray, cheat, deceive, and
defraud.
This court must be wary of non-traditional concealments of truth. It shows that a person not orily
made a dishonest act but that the person has a propensity .to conceal the truth. This runs against
the very principles of truth and justice that the judiciary tries to uphold. It is reprehensible if it is
a judge or justice - expected by the public trust to be honest - who perpetrates this act. As we
have time and again declared: "[D]ishonesty is a malevolent act that has no place in the
Judiciary."89
Justice Ong should be dismissed for his dishonesty
Rule 140, Section 8 of the Rules of Court classifies dishonesty as a serious charge. Rule 140,
Section 11 (A) provides for a range of penalties:
1. Dismissal from service, forfeiture of all or part of the benefits as the Court may
determine, and disqualification from reinstatement or appointment to any public office,
including government-owned or controlled corporations. Provided, however, That the
forfeiture of benefits shall in no case include accrued leave credits;
2 . Suspension from office without salary and other benefits for more than three (3) but
not exceeding six (6) months; or
3. A fine of more than P20,000.00 but not exceeding P40,000.00.
Justice Bersamin opines that Justice Ong's dishonesty "did not meet the required seriousness or
gravity that would merit the extreme penalty of dismissal." Justice Bersamin applied the standard
that for there to be dishonesty that is subject to the penalty of dismissal, the act of dishonesty
should relate to Justice Ong's official duties or qualifications as a justice of the Sandiganbayan.
I cannot agree with Justice Bersamin's assessment. Justice Ong's dishonesty was related. · to his
qualifications as a justice of the Sandiganbayan. He might not have placed a false entry in his
personal data sheet for the Judicial Bar Council to assess,90 but he concealed truth that affects
his fitness to be a member of the judiciary. The Code of Judicial Conduct requires propriety from
its members. This qualification of a justice should be constant and should be met by a justice at
all times. When Justice Ong committed dishonest acts to conceal his impropriety, his· dishonesty
related to his qualifications as a Sandiganbayan justice.
The dishonesty of Justice Ong did not only pertain to a single act. Taken together, this set of acts
reveals a propensity of Justice Ong to be dishonest. For dishonesty alone, he should· be meted
the penalty of dismissal.
III
Grave misconduct
Time and again, this court has clarified what can be considered as misconduct. Thus:
Misconduct has been defined as improper or wrongful conduct. It is the transgression of some
cstahl ished and definite rule of action, a forbidden act, a dereliction of duty, willful in character,
and implies wrongful intent and not mere error in judgment.91 (Underscoring supplied)
To be considered grave misconduct, "the elements of corruption, clear intent to violate the law or
flagrant disregard of established rule"92 must be present.
Justices Perez, Bersamin, and Reyes concur that the improprieties of Justice Ong were
tantamount to misconduct. However, due to the absence of the element of corruption, the
misconduct cannot be considered grave, hence, they merely penalized him for simple
misconduct.
However, grave misconduct is not only qualified by corruption, it could also be qualified by
violation of law or "flagrant disregard of established rule."
Justice Ong violated the law by improperly receiving gifts from Napoles. In addition, he
flagrantly disregarded established rules.
In Imperial, Jr. v. Government Service Insurance System,93 this court described the instances
when there is flagrant disregard of an established rule:
Flagrant. disregard of rules is a ground that jurisprudence has already touched upon. It has been
demonstrated, among others, in the instances when there had been open defiance of a customary
rule; in the repeated voluntary disregard of established rules in the procurement of supplies; in
the practice of illegally collecting fees more than what is prescribed for delayed registration of
marriages; when several violations or disregard of regulations governing the collection of
government funds were committed; and when the employee arrogated unto herself
responsibilities that were clearly beyond her given duties. The common denominator in these
cases was the employee's propensity to ignore the rules as clearly manifested by his or her
actions.94 (Emphasis in the original, citations omitted)
Justice Ong repeatedly ignored the Code of Judicial Conduct. His many years in the judiciary
should have instilled in him the discipline to be cautious in his social life. Otherwise, he
compromises his independence and impartiality.
Yet, Justice Ong repeatedly met and accepted favors from a former litigant. He offers no other
explanation to characterize his relationship with Napoles. Certainly, his many acts of impropriety
constitute grave misconduct.
Grave misconduct or gross misconduct constituting violations of the Code of Judicial Conduct
under the Rules of Court, Rule 140, Section 8, is another serious charge. Again, the range of
penalties for serious charges include dismissal, three- to six-month suspension, or a fine ranging
from P20,000.00 to P40,000.00.
For Justice Ong's series of improprieties, he deserves the penalty of DISMISSAL.
We meted the penalty of dismissal to a Regional Trial Court judge, Judge Marino Rubia, for
similar improprieties. In Sison-Barias v. Rubia,95 Judge Rubia and one of his court staff met
with a litigant in a restaurant in the Bonifacio Global City. At that time, the litigant had three
pending cases in Judge Rubia's sa1a. During the meeting, Judge Rubia asked inappropriate
questions relating to the personal circumstances of the litigant. The litigant was disturbed
because Judge Rubia revealed that he was close to the opposing counsel, and he. seemed to be
using information about that litigant that he derived from the opposing counsel. The litigant felt
that Judge Rubia was severely biased toward the opposing party. Judge Rubia convinced her to
meet with opposing counsel to arrange her cases extra-judicially. For that meeting, Judge Rubia
did not ask or receive favors from the litigant in exchange for a favorable decision, but the
litigant paid the bill for the meals at the restaurant. After this incident, the litigant felt the bias
against her in every order that Judge Rubia issued regarding her cases.
In Rubia, this court strictly enforced Canons 2, 3, and 4 of the Code of Judicial Conduct. To our
mind, due to "[Judge Rubia's] actions, complainant and all who will be made aware of the events
of this case will harbor distrust toward the judiciary and its processes."
Justice Ong should not be given a lighter penalty simply because he fraternized with a previous
litigant, not a current litigant. The effect on his integrity, impartiality, and propriety is the same.
He was a Sandiganbayan associate Justice who was willing to compromise the integrity of the
judiciary for favors. In that sense, Justice Ong's transgressions are even graver than Judge
Rubia's.
IV
Proper penalty
The charge of grave misconduct constituting Justice Ong's improprieties and his dishonesty is
enough to justify the penalty of DISMISSAL.
In addition, Justice Ong already had a prior administrative sanction that aggravates his current
standing in this administrative case.
In Jamsani-Rodriguez v. Ong,96 this court already penalized Justice Ong for his misconduct. .
While the nature of Justice Ong's ·offense was different, the finding of his administrative liability
came with a warning that a repetition of the same or similar act shall be dealt with more severely.
The fact that this court subsequently granted him judicial clemency97 does not cure this warning.
This warning persists.
The acts committed by Justice Ong in this case are more severe than in Jamsani-Rodriguez v.
Ong. In Jamsani-Rodriguez, Justice Ong was found guilty of irregularly holding proceedings in
court, violative of the collegial nature of the Sandiganbayan. In this case, his acts lacked
integrity, were improper, and dishonest.
FINAL NOTE
The Code of Judicial Conduct requires "[j]udges [to] ensure that not only is their conduct above
reproach, but that it is perceived to. be so in the view of a reasonable observer."98 A judge
should ensure that his conduct, even out of court, maintains and enhances the confidence of the
public in the impartiality of the judiciary.99
The expectations of propriety are higher for Sandiganbayan justices like Justice Ong. It is the
Sandiganbayan that has the primacy exclusive jurisdiction to hear and decide the most difficult
cases involving graft and corruption. It is the Sandiganbayan that sits in judgement of public
officers who violate the provisions of the Revised Penal Code, Republic Act No. 3019, Republic
Act No. 6713, and Presidential Decree No. 46 on the receiving of gifts. It is the justices of the
Sandiganbayan that struggle day in and day out against political pressure and personal risk to
live by the public's faith that they will themselves follow the law.
Many times during the deliberations of this case, colleagues have pointed to the need for
compassion for the case of Justice Ong.· We are told that he has served long years as a judge and
as a justice. We were even told that he attempted to informally circulate a letter through other
colleagues in this court that he was willing to take optional retirement should he be meted with
any kind of suspension.
That he had the audacity to try to influence the members of this court by offering to resign
through an informal letter circulated through some colleagues is in my view could have been
another basis for his dismissal. It shows that he has at least made attempts to communicate ex
parte with members of this court outside the formal processes allowed by our rules.
Ex parte communication sub rosa by one being investigated with any member of this court while
we sit in deliberation of his case is wrong. Influence peddling is wrong.
We should, as the court with the ·constitutional duty to discipline judges and justices of the
lower courts, properly call out an attempt to illicitly influence this court when it happens.
If there is any group deserving of compassion, it should be the judges and justices who toil with
meager salaries and highly taxed benefits and who struggle daily to keep their integrity and
independence intact. Our compassion should be reserved to judges and justices who do p.ot
succumb to temptation or pressure to cater to the rich and powerful accused at the expense of.the
Filipino people. Our compassion should be for them who we will disappoint should we mistake a
failure of our ability to do justice for mercy.
Every decision will cause us discomfort. I do not take personal pleasure in voting for his
dismissal.1âwphi1 But it is what is called for by law and my conscience.
We fail ourselves, our institution, and the values and principles we swore to uphold when we
lose the courage to do what is right and just.
ACCORDINGLY, I vote that Justice Ong be found GUILTY of GRAVE MISCONDUCT,

IMPROPRIETY, ACTS PREJUDICIAL TO THE BEST INTEREST OF SERVICE, and
DISHONESTY. I vote that he be DISMISSED from the service, with forfeiture of all retirem.ent
benefits, except accrued leave credits, if any, and with prejudice to re-employment in any branch,
agency, or instrumentality of the government including government-owned or controlled
corporations.
MARVIC M.V.F. LEONEN

Associate Justice
Footnotes
1 The case was docketed as Crim. Case No. 26768 for the malversation of public funds
through falsification of public documents, and Crim. Case No. 26769 for the violation
ofSectiop 3(e), Rep. Act No. 3019. The case was raffled to the Fourth Division, with
Associate Justice Gregory S. Ong as the chairperson, Associate Justice Jose R.
Hernandez as ponente, and Associate Justice Cristina J. Cornejo.
2 Report and recommendation dated May 15, 2014 (A.M. No. SB-14-21-J), p. 3.
3 Id. at 5-9.
4 Sandiganbayan decision dated October 28, 2010 (Crim. Case No. 26768-69), p. 22.
5 Id. at 26.
6 Id. at 26-27.
7 Id. at 27, 30, and 41.
8 Id. at 32.
9 Id. at 29.
10 Memorandum, p. 58.
11 TSN, March 21, 2014, p. 21.
12 Id.
13 Id.
14 Id. at 23.
15 Comment, pp. 19-20.
16 TSN, March 21, 2014, p. 23.
17 Id. at 24-25.
18 Id. at 26.
19 Id. at 28.
20 Id. at 30.
21 Id.
22 TSN, February 12, 2014, p. 23.
23 Id. at 24-25.
24 Id. at 51-52.
25 N.C. Carvajal, NBI probes PIO-B scam, Philippine Daily Inquirer, july 12, 2013
<http://newsinfo.inquirer.net/443297 /nbi-probes-p10-b-scam> (visited September

22, 2014).
26 A. Rufo, Exclusive: Napoles parties with anti-graft justice, Rappler, August 30, 2013
<http://www.rappler.com/newsbreak/3 767 3-napoles-anti-graft-court-justice>

(visited September 22, 2014).
27 Report and recornmendation dated May 15, 2014 (A.M. No. SB-14-21-J), pp. 33-34.
28 CODE OF JUDICIAL CONDUCT, canon 4, sec. 15.

29 See Ompoc v. Torres, 25 8 Phi I. 616 (1989) [Per Curiam, En Banc].
30 CODE Of JUDICIAL CONDUCT, canon 2, sec. 1.
31 Sibayan-Joaquin v . Javellana, 420 Phil. 584, 589-590 (2001) [Per J. Vitug, Third
Division].
32 CODE OF JrJDICIAL CONDUCT, canon 4, sec. 15.
33 Spouses Nazareno v. Almario, 335 Phil. 1 122 ( 1997) [Per Curiam, En Banc].
34 Lecaroz v. Garcia, 194 Phil. 509 (1981) [Per J. De Castro, Second Division].
35 Perfecto v. Desales-Esidera, A.M. No. RTJ-1 1-2270, January 31, 2011, 641 SCRA 1
[Per J. Carpie- J. Moniles, Third Division].
36 Id. at 4.
37 Id. at 8.
38 TSN, March 21, 2014, p. 21.
39 Id. at 24.
40 Id. at 24-25.
41 Id. at 25.
42 Comment, p. 19.
43 TSN, March 21, 2014, pp. 52-53.
44 A.M. No. RTJ-86-50, June 28, 1993, 223 SCRA. 696 [Per Curiam, En Banc].
45 Id. at 704-705.
46 Id. at 719.
47 TSN, March 21, 2014, p. 30.
48 Id.
49 Cortes v. Agcaoili. 355 Phil. 848, 886 ( 1998) [Per J. Panganiban, En Banc].
50 See Padilla v. Zantua, Jr., A.M. No. MTJ-93-888. October 24, 1994, 237 SCRA 670
[Per J. Romero, Third Division] and Sibayan-Joaquin v. Javellana, 420 Phil. 584 (2001)
[Per J. Vitug, Third Division].
51 Ang Tibay v. CIR, 69 Phil. 635, 642 ( 1940) [Per J. Laurel, En Banc].
52 Report and recommendation dated May 15, 2014 (A.M. No. SB-14-21-J), p. 22.
53 See the official AFPSLAI website for the features of its capital contribution account
<http://www.afpslai.com.ph/capitaldeposits_about.php> (visited September 22,

2014).
54 See the official AFPSLAI website <http://www.afpslai:com.ph/info_faqs.php>

(visited September 22, 2014).
55 530 Phil. 83 (2006) [Per J. Corona, Second Division].
56 Id. at 88. The case cited by the decision, Saraza v. Tam (489 Phil. 52 (2005) [Per J.
Ynares-Santiago, First Division]), involves a court stenographer who was suspended for
loaning money from a litigant.
57 599 Phil. 640 (2009) [Per Curiam, En Banc].
58 Id. at 645-648.
59 Id. at 659-660.
60 Monteverde v. People, 435 Phil. 906 (2002) (Per J. Panganiban, Third Division],
citing L. Reyes, The Revised Penal Code, Book I 645 (1998) and People v. Honra, Jr.,
395 Phil. 299, 321 (2000) [Per J. Gonzaga-Reyes, Third Division].
61 The decision of the Fou1ih Division of the Sandiganbayan was penned by Associate
Justice Jose R. Hernandez, with Chairperson Associate Justice Gregory S. Ong and
Associate Justice Maria Cristina J. Cornejo concurring.
62 513 Phil. 1 (2005) [Per J. Azcuna, First Division].
63 d. at 9, citing Estrella v. Sandiganbayan, 389 Phil. 413, 428 (2000) [Per J. De Leon,
Jr., Second Division]; People v. Pepito, 335 Phil. 37, 46 (1997) [Per J. Puno, Second
Division]; Felicilda v. Grospe, G.R. No. 102494, July 3, 1992, 211 SCRA 285, 289 [Per
J. Grifio-Aquino, En Banc]; Navallo v. Sandiganbayan, G.R. No. 97214, July 18, 1994,
234 SCRA 175, 185 [Per J. Vitug, En Banc]; Villanueva v. Sandiganbayan, G.R. No.
95627, August 16, 1991, 200 SCRA 722, 734 [Per J. Regalado, En Banc]; Bugayong v.
People, 279 Phil. 823, 830 (1991) [Per J. Gutierrez, Jr., En Banc].
64 People v. Uy, 511 Phil. 682, 691 (2005) [Per J. Ynares-Santiago, First Division],
citing Cabello v. Sandiganbayan, 274 Phil. 369, 374 (1991) [Per J. Regalado, En Banc];
Delosa v. Hon. Desierto, 372 Phil. 805, 813 (1999) [Per J. Pardo, First Division]; Diaz v.
Sandiganbayan, 361 Phil. 789, 802-803 (1999) [Per J. Yitug, Third Division].
65 Sandiganbayan decision dated October 28, 2010 (Crim. Case No. 26768-69), pp. 12-
14, 23 and 28.
66 Id. at 8-10 and 32.
67 Id. at 19.
68 Id. at 23-24.
69 See Salcedo v. Caguioa, 467 Phil. 20, 28 (2004) [Per J. Austria-Martinez, Second
Division] and Ever Emporium, Inc. v. Maceda, 483 Phil. 323, 337 (2004) [Per J. Callejo,
Sr., En Banc].
70 Ever Emporium, Inc. v. Maceda. 483 Phil. 323, 337 (2004) [Per J. Callejo, Sr., En
Banc].
71 TSN, February 12, 2014, p. 27.
72 Id. at 85-86 and 91-95.
73 Id. at 73.
74 People v. Velasquez, 405 Phil. 74, 99-100 (2001) [Per J. Mendoza, En Banc].
75 Republic v. Heirs of Alejaga, Sr., 441 Phil. 656, 672 (2002) [Per Panganiban, Third
Division).
76 TSN, March 21, 2014, p. 31.
77 TSN, February 12, 2014, p. 30.
78 Exec. Or er No. 292, book V, chap. 6, sec. 46(b)(27).
79 565 Phil. 1 (2007) [Per Curiam, En Banc]. While this case involved a judge who
committed several acts of sexual harassment, the case is still instructive on the
expectation of the public for members of the judiciary.
80 Id. at 53.
81 Del Rosario v. Pascua, A.M. No. P-11-2999, February 27, 2012, 667 SCRA 1, 6 [Per
J. Brion, Second Division].
82 National Power Corporation v. Olandescu. C.R. No. 171434, April 23, 2010, 619
SCRA 264, 273-274 [Per J. Peralta, En Banc].
83 TSN, March 7, 2014, pp. 9-10.
84 A. Rufo, Exclusive: Napoles parties with anti-graft court justice, Rappler, August 30,
2013
<http://www.rappler.com/newsbreak/37673-napoles-anti-graft-court-justice>
(visited September 22, 2014) Emphasis in this quote supplied.
85 Comment, p. 18.
86 "By the very nature of the bench, judges, more than the average man, are required to
observe an exacting standard of morality and decency. The character of a judge is
perceived by the people not only through his official acts but also through his private
morals as reflected in his external behavior." De lq Cruz v. Bersamira, 402 Phil. 671, 679
(2001) [Per J. Ynares-Santiago, First Division].
87 Re: Report on the Irregularity in the Use of Bundy Clock by Alberto Salamat, 592
Phil. 404 (2008) [Per Chico-Nazario, Third Division].
88 Administrative Case for Dishonesty and Fulsification of Official Document against

Noel V. Luna, SC Chief Judicial Staff Officer, Systems Planning And Project Evaluation
(SPPE) Division, MISO, 463 Phil. 878 (2003) [Per Curiam, En Banc].
89 De Vera v. Rimas, 577 Phil. 136, 143 (2008) [Per J. Azcuna, First Division].
90 See Fernandez v. Judge Vasquez, A.M. No. RTJ-11-2261, July 26, 2011, 654 SCRA
349 [Per J. Perez, En Banc].
91 Office of the Ombudsman v. Magno, 592 Phil. 636, 658 (2008) [Per J. Chico-Nazario,
Third Division].
92 Id.
93 G.R. No. 191224, October 4, 201l, 658 SCRA 497 [Per J. Brion, En Banc].
94 Id. at 507-508.
95 A.M. No. RTJ-14-2388, June 10, 2014 <http://oca.judiciary.gov.ph/wp-

content/uploads/2014/04/A.-M.-No.-RTJ-14-2388.pdf> [Per Curiam, En Banc].
96 A.M. No. 08-19-SB-J, August 24, 2010, 628 SCRA 626 [Per J. Bersamin, En Banc].
97 A.M. No. 08-19-SB-J, February 19, 2013 (unpublished resolution).


SUPREME COURT
Manila
EN BANC
A.M. No. SB-14-21-J September 23, 2014

[Formerly A.M. No. 13-10-06-SB]
RE: ALLEGATIONS MADE UNDER OATH AT THE SENATE BLUE RIBBON

COMMITTEE HEARING HELD ON SEPTEMBER 26, 2013 AGAINST ASSOCIATE
JUSTICE GREGORY S. ONG, SANDIGANBAYAN
DECISION
PER CURIAM:
The character of every act depends upon the circumstances in which it is done.
- Justice Oliver Wendell Holmes
This administrative complaint was filed by the Court En Banc after investigation into certain
allegations that surfaced during the Senate Blue Ribbon Committee Hearing indicated prima
facie violations of the Code of Judicial Conduct by an Associate Justice of the Sandiganbayan.
The investigation was conducted motu proprio pursuant to the Court's power of administrative
supervision over members of the Judiciary.1
Factual Antecedents
In the middle of 2013, the local media ran an expose involving billions of government funds
channeled through bogus foundations. Dubbed as the "pork barrel scam," as the money was
sourced from the Priority Development Assistance Fund allotted to members of the House of
Representatives and Senate, the controversy spawned massive protest actions all over the
country. In the course of the investigation conducted by the Senate Committee on Accountability
of Public Officers and Investigations (Blue Ribbon Committee), the names of certain
government officials and other individuals were mentioned by "whistle-blowers" who are former
employees of the alleged mastermind, Janet Lim-Napoles (Mrs. Napoles), wife of an ex-military
officer. These personalities identified by the whistle-blowers allegedly transacted with or
attended Mrs. Napoles' parties and events, among whom is incumbent Sandiganbayan Associate
Justice Gregory S. Ong, herein respondent.
Benhur Luy (Luy), a cousin of Mrs. Napoles who had worked for several years with the
Napoleses, filed illegal detention charges against Mrs. Napoles who accused him of double-
dealing. When Luy went public with his story about Mrs. Napoles' anomalous transactions and
before the warrant of arrest was issued by the court, she reportedly tried to reach out to the other
whistle-blowers for them not to testify against her but instead point to Luy as the one receiving
and distributing the money.
Marina Sula (Sula) executed a Sworn Statement2 before the National Bureau of Investigation
(NBI) on August 29, 2013, part of which reads:
32. In the sixteen (16) years that I worked with Ms. Napoles, I witnessed several
personalities visit our offices and join us as our special guests during our parties and
other special occasions. 33. These personalities who would either visit our office or join
our events and affairs are: Senator Franklin Drilon, Senator Jinggoy Estrada and family,
Senator Bong Revilla, Lani Mercado-Revilla, Bryan Revilla, Secretary Rene Villa,
Congressman Pichay and Wife, Congressman Plaza, Congressman Ducut, DAR Director
Theresita Panlilio, Catherine Mae Canlas Santos, Pauline Labayen, Jen Corpuz (Staff of
Senator Sotto), Mayor Rene Maglanque, Atty. Dequina, Justice Gregory Ong, x x x.
34. Before the warrant of arrest was issued against Ms. Napoles, she told us that that case
could take four to five years to clear. She said, "Antayin niyo munang ma-clear pangalan
ko para makakilos ako at matulungan ko kayo". Sinabi niya na meron na siyang kausap
sa Ombudsman at sa Sandiganbayan.
35. On 28 August 2013 while me and my companions were at the NBI, Janet Lim
Napoles called me. She was crying and ask[i]ng me not to turn my back on her, that we
should stay together. She said "kahit maubos lahat ng pera ko, susuportahan ko kayo.
Hintay[i]n nyo kasi lalabas na ang TRO ko."
xxxx
38. Attorney Tan instructed us to implicate Benhur in case we were asked by the NBI. He
said "wala naman ipinakita sa inyong masama si Madam (Janet Lim Napoles). Siguro
wala naman kayong sama ng loob kay madam, kaya nga idiin ninyo si Benhur na siya
ang nag-utos at saka sa kanya ninyo ibinibigay ang pera."3 (Emphasis supplied.)
The following day, the social news network Rappler published an article by Aries Rufo entitled
"Exclusive: Napoles Parties with Anti-Graft Court Justice" showing a photograph of Senator
Jinggoy Estrada (Senator Estrada), one of the main public figures involved in the pork barrel
scam, together with Mrs. Napoles and respondent. The reporter had interviewed respondent who
quickly denied knowing Mrs. Napoles and recalled that the photograph was probably taken in
one of the parties frequently hosted by Senator Estrada who is his longtime friend. Respondent
also supposedly admitted that given the ongoing pork barrel controversy, the picture gains a
different context; nevertheless, he insisted that he has untainted service in the judiciary, and
further denied he was the one advising Mrs. Napoles on legal strategies in connection with the
Kevlar helmet cases where she was acquitted by a Division of the Sandiganbayan of which
respondent is the Chairman and the then Acting Presiding Justice.4
On September 12, 2013, Sula executed a "Karagdagang Sinumpaang Salaysay "5 wherein she
gave details regarding those persons named in her sworn statement, alleged to have visited their
office or attended their events, thus:
63) T: Ayon sa paragraph Nos. 32 at 33 ng iyong sinumpaang salaysay na may petsang 29

Agosto 2013, nabanggit mo ang mga personalidad na nakikita mong bumibisita sa inyong
opisina o di kaya naman sa tuwing may party o special occacions si JANET NAPOLES ay may
mga special guests kayo na kinabibilangan ng mga malalaking pulitiko at ang iba naman ay may
mga katungkulan sa gobyerno. Maari mo bang ilahad ang mga pangyayari sa mga bawat
pagkakataon na nakita mo sila sa iyong pagkaka-alala?
S : Opo, iisa-isahin ko po ang mga pangyayari sa mga pagkakataon na nakita ko po ang mga
taong nabanggit ko:
xxxx
w) Justice GREGORY ONG - Isang beses ko po siyang nakitang nagpunta sa office sa 2501
Discovery Centre, Ortigas at nakita ko po silang magkausap ni Madam JANET NAPOLES sa
conference room.
x x x x6
In her testimony before the Senate Blue Ribbon Committee on September 26, 2013, Sula was
asked to confirm her statement regarding Justice Ong, thus:
THE CHAIRMAN. Thank you, Senator Grace.
Isang tanong lang kay Ms. Sula.
Sinabi niyo kanina may tinawagan si Ms. Napoles at sinabi niya, "Malapit na lumabas yung TRO
galing sa korte." May kilala pa ba si Janet Lim Napoles sa ltuwes sa korte sa Sandiganbayan?
MS. SULA. Hindi ko po alam.
THE CHAIRMAN. Your attention is called sa page –
MS. SULA. Sandiganbayan po, sorry. Mayroon po siyang binanggit na ano po –
THE CHAIRMAN. Nandito sa page 20.
MS. SULA. Si Mr. Ong, po, Justice Ong po.
THE CHAIRMAN. Gregory Ong.

MS. SULA Opo.
THE CHAIRMAN. Sa Sandiganbayan?
MS. SULA. Opo.
x x x7 (Emphasis supplied.)
In a letter dated September 26, 2013 addressed to Chief Justice Maria Lourdes P. A. Sereno,
respondent meticulously explained the controversial photograph which raised questions on his
integrity as a magistrate, particularly in connection with the decision rendered by the
Sandiganbayan' s Fourth Division in the Kevlar helmet cases, which convicted some of the
accused but acquitted Mrs. Napoles.
Respondent surmised that the photograph was taken during the birthday of Senator Estrada in
February, either in the year 2012 or 2013, but definitely not in 2010 or earlier. He explained that
he could vaguely remember the circumstances but it would have been rude for him to prevent
any guest from posing with him and Senator Estrada during the party. On the nature of his
association with Mrs. Napoles, respondent asserted:
(4) I can categorically state, on the other hand, that I have never attended any party or social
event hosted by Mrs. Napoles or her family, either before she had a case with our court, or while
she already had a pending case with our court, or at any time afterwards. I have never, to use the
term of Mr. Rufo in his article, "partied" with the Napoleses. (Emphasis supplied.)
As to the Kevlar helmet cases, respondent said it was impossible for him to have been advising
Mrs. Napoles, as claimed by Mr. Rufo, as even the article itself noted that Mrs. Napoles' own
brother, Reynald L. Lim, ( a.k.a. Reynaldo L. Francisco), a co-accused in the case, was convicted
by the Sandiganbayan. He stressed that these cases were decided on the merits by the
Sandiganbayan, acting as a collegial body and he was not even the ponente of the decision.
Respondent thus submitted himself to the discretion of the Chief Justice such that even without
being required to submit an explanation, he voluntarily did so "to defend [his] reputation as a
judge and protect the Sandiganbayan as an institution from unfair and malicious innuendos."
On October 7, 2013, Chief Justice Sereno wrote the Members of this Court, citing the
testimonies of Luy and Sula before the Senate Blue Ribbon Committee "[t]hat the malversation
case involving Mrs. Janet Lim-Napoles, Major Jaime G. Napoles, Jenny Lim Napoles, Reynaldo
L. Francisco and other perpetrators was 'fixed' (inayos) through the intervention of Justice
Gregory S. Ong of the Sandiganbayan", to wit:
SEN. ANGARA. Sa inyo, hindi niyo a/am kung inayos iyong kaso na iyon? Kasi napakaraming
koneksiyon, 'di ba?
xxxx Sige, huwag kang matakot, Benhur.
MR. LUY. Alam ko, inayos ni Ms. Napoles iyon dahil may connect nga siya sa Sandiganbayan
SEN. ANGARA. Okay.
xxxx
THE CHAIRMAN. xxx Sinabi niyo kanina na may tinawagan si Ms. Napoles at sinabi niya
"Malapit na lumabas yung TRO galing sa korte." May kilala pa ba si Janet Lim Napoles sa
huwes sa korte sa Sandiganbayan?
xxxx
MS. SULA. Si Mr. Ong po, Justice Ong po.
THE CHAIRMAN. Gregory Ong.
MS. SULA. Opo.
THE CHAIRMAN. Sa Sandiganbayan?
MS. SULA. Opo.
Xxxx8
Chief Justice Sereno then requested the Court En Banc to conduct an investigation motu proprio
under this Court's power of administrative supervision over members of the judiciary and
members of the legal profession (referring to notaries public who were alleged to have purposely
left their specimen signatures, dry seals and notarial books with Mrs. Napoles to facilitate the
incorporation of non-governmental organizations [NGOs] involved in the scam).9
Under our Resolution dated October 17, 2013, the Court En Banc required respondent to submit
his comment and directed the NBI to furnish the Court with certified copies of the affidavit of
Luy. On November 21, 2013, the Court received respondent's Comment.10 Respondent
categorically denied any irregularity in the Kevlar helmet cases and explained the visit he had
made to Mrs. Napoles as testified by Sula.
On Sula's statement, respondent points out that Sula never really had personal knowledge
whether respondent is indeed the alleged "contact" of Mrs. Napoles at the Sandiganbayan; what
she supposedly "knows" was what Mrs. Napoles merely told her. Hence, Sula's testimony on the
matter is based purely on hearsay. Assuming that Mrs. Napoles actually made the statement,
respondent believes it was given in the context of massive media coverage of the pork barrel
scam exploding at the time. With the consciousness of a looming criminal prosecution before the
Office of the Ombudsman and later before the Sandiganbayan, it was only natural for Mrs.
Napoles to assure Sula and others involved in their business operation that she would not leave
or abandon them and that she would do all that she can to help them just so they would not turn
their backs on her and become whistle-blowers. Thus, even if Mrs. Napoles made
misrepresentations to Sula regarding respondent as her "connection", she only had to do so in
order to convince Sula and her co-employees that the cases to be filed against them would be
"fixed."
As to Sula's statement that she personally witnessed respondent at one time visiting Mrs. Napoles
at her office and having a meeting with her at the conference room, respondent said that at the
birthday party of Senator Estrada where the controversial photograph was taken, Mrs. Napoles
engaged him in a casual conversation during which the miraculous healing power of the robe or
clothing of the Black Nazarene of Quiapo was mentioned. When Mrs. Napoles told respondent
that she is a close friend of the Quiapo Church's parish priest, he requested her help to gain
access to the Black Nazarene icon. Eventually, respondent, who is himself a Black Nazarene
devotee and was undergoing treatment for his prostate cancer, was given special permission and
was able to drape the Black Nazarene's robe or clothing for a brief moment over his body and
also receive a fragrant ball of cotton taken or exposed to the holy image, which article he keeps
to this day and uses to wipe any ailing part of his body in order to receive healing. Because of
such favor, respondent out of courtesy went to see Mrs. Napoles and personally thank her.
Respondent stressed that that was the single occasion Sula was talking about in her supplemental
affidavit when she said she saw respondent talking with Mrs. Napoles at the conference room of
their office in Discovery Suites.
Respondent maintains that there was nothing improper or irregular for him to have personally
seen Mrs. Napoles at the time in order to thank her, considering that she no longer had any
pending case with his court, and to his knowledge, with any other division of the Sandiganbayan
at the time and even until the date of the preparation of his Comment. He thus prays that this
Court duly note his Comment and accept the same as sufficient compliance with the Court's
Resolution dated October 17, 2013.
This Court upon evaluation of the factual circumstances found possible transgressions of the
New Code of Judicial Conduct committed by respondent. Accordingly, a Resolution was issued
on January 21, 2014 stating that:
WHEREFORE, the Court hereby resolves to have the instant administrative matter RE-
DOCKETED as A.M. No. SB-14-21-J (Re: Allegations Made Under Oath at tlze Senate Blue
Ribbon Committee Hearing held on September 26, 2013 against Associate Justice Gregory S.
Ong, Sandiganbayan), and ASSIGNS the same to retired Supreme Court Justice Angelina
Sandoval-Gutierrez for investigation, report and recommendation within a period of sixty (60)
days from notice hereof.
The Court further resolves to NOTE the letter dated January 7, 2014 of Atty. Joffre Gil C.
Zapata, Executive Clerk of Court III, Sandiganbayan, Fourth Division, in compliance with the
resolution of the Court En Banc dated December 3, 2013, transmitting the original records of
Criminal Case Nos. 26768 and 26769. Atty. Zapata is INFORMED that there is no more need to
transmit to this Court the post-sentence investigation reports and other reports on the supervisory
history of the accused-probationers in Criminal Case Nos. 26768 and 26769.
Report and Recommendation of the Investigating Justice
Justice Angelina Sandoval-Gutierrez, a retired Member of this Court, submitted her report with
the following findings and conclusions:
FACTUAL ANTECEDENTS
1. THE KEVLAR CASE
Two criminal cases were filed with the Sandiganbayan sometime in 2001 - Criminal Case No.
26768 for Falsification of Public Documents and Criminal Case No. 26769 for Violation of
Section 3(e) of the AntiGraft Law. Charged were several members of Philippine Marine Corps
and civilian employees including Ms. Janet L. Napoles (Napoles), her mother Magdalena
Francisco (now deceased), her brother Reynaldo Francisco and wife Anna Marie Dulguime, and
her (Napoles') three employees.
These cases are referred to as the Kevlar case because the issue involved is the same - the
questionable purchase of 500 Kevlar helmets by the Philippine Marine Corps in the amount of
P3,865,310.00 from five suppliers or companies owned by Napoles.
The prosecution alleged inter alia that the accused, acting in conspiracy, released the payment
although there was yet no delivery of the Kevlar helmets; that the suppliers are mere dummies of
Napoles; and that the helmets were made in Taiwan, not in the U.S.A.
Napoles' husband, Major Jaime Napoles, was dropped from the two Informations in an Order
issued by the Ombudsman on March 18, 2002.
Napoles' mother, brother, and sister-in-law were among those convicted for the lesser crime of
Falsification of Public Documents and sentenced to suffer the penalty of 4 years and 2 months of
prision correccional to 8 years and 1 day of prision mayor and each to pay PS,000.00. They all
underwent probation.
Napoles and six members of the Philippine Marine Corps were acquitted in both cases.
The court ruled that Napoles "was not one of the dealer-payees in the transaction in question.
Even if she owns the bank account where the 14 checks were later deposited, this does not in
itself translate to her conspiracy in the crimes charged x x x."
xxxx
THE INVESTIGATION
xxxx
I. During the investigation, Benhur testified that he and Napoles are second cousins. After
passing the Medical Technology Licensure Examination in 2002, he was employed in the JLN
(Janet Lim Napoles) Corporation as Napoles' personal assistant. As such, he was in charge of
disbursements of her personal funds and those of her office. He was also in charge of
government transactions of the corporation and kept records of its daily business activities.
In the course of Benhur's employment at the JLN Corporation, Napoles mentioned to him the
Kevlar case, then pending in the Sandiganbayan, saying she has a "connect" in that court who
would help her.
When asked about his testimony before the Senate Blue Ribbon Committee concerning the
Kevlar case, Benhur declared that Napoles' "connect" with the Sandiganbayan is respondent,
thus:
Q The question was, Mr. Witness, this is coming from Senator Angara, and I quote, "Kailan ho
lumabas yung decision ng Court sa Kevlar?" And just to refresh your memory, Mr. Witness, then
Ms. Sula answered, "I think 2010. Yun po yung lumabas po." And then going forward, Senator
Angara referred to both of you this question: "Sa inyo, hindi ninyo alam kung inayos yung kaso
na iyon kasi napakaraming koneksyon, di ba? Baka alam ng ibang whistleblowers kung nagka-
ayusan sa kaso na iyon. Sige, huwag kang matakot, Benhur." Do you remember that question
being asked from you?
xxxx
A Yes po.
Q And now Mr. Witness, about this statement of yours at the Blue Ribbon Committee that Ms.
Napoles has a certain connect sa Sandiganbayan, who was this connect you were talking about, if
you remember?
Witness Luy
A Si Justice Gregory Ong po.
Q How do you know that Justice Gregory Ong was the connect of Ms. Napoles at the
Sandiganbayan?
A Ang sinabi po ... Si Ms. Napoles, pinsan ko po kasi we are second cousins. So kinuwento
talaga sa akin ni Madam kung ano ang mga developments sa mga cases, kung ano ang mga
nangyayari. Tapos po, sinabi niya sa akin mismo na nakakausap niya si Justice Gregory Ong at
ang nagpakilala raw sa kanya po ay si Senator Jinggoy Estrada.
Benhur further testified that even before the decision in the Kevlar case was promulgated,
Napoles and respondent were already communicating with each other (nag-uusap na po si!a).
Therefore, she was sure the decision would be in her favor:
Q Do you remember the date when the decision (in Kevlar case) was promulgated?
A Ano po, the year 2010 po ma' am.
Q And you met him (Justice Ong) in 2012?

A 2012 po, pero prior to that decision, madam, naririnig ko na po kay madam (Ms. Napoles) kasi
kinukwento na po ni madam sa akin na nag-uusap na po sila ni Justice Gregory Ong.
Q That was after the decision was promulgated?
A Bago po nailabas yung decision, ikinwento po m Ms. Napoles sa akin na nag-uusap na po sila
ni Justice Gregory Ong. Kaya kampante po si Ms. Napoles. Noong lumabas po yung decision,
alam niya na po. Yung ang sabi sa akin ni Ms. Napoles.
Going back to the hearing before the Blue Ribbon Committee, Benhur told Senator Angara that
Napoles fixed the Kevlar case because she has a "connect" in the Sandiganbayan:
"Baka alam ng ibang whistle blowers kung nagkaka-ayusan sa kaso na iyon (Kevlar case). Sige
huwag kang matakot Benhur."
Benhur Luy: "Alam ko inayos ni Ms. Napoles iyon dahil may connect nga siya sa
Sandiganbayan."
On how Napoles "inayos" or fixed the Kevlar case, Benhur said that he kept a ledger of the
Sandiganbayan case wherein he listed all her expenses in the sum of P 100 million pesos. He was
surprised why she would spend such amount considering that what was involved in the Kevlar
case was only P3.8 million. She explained that she gave various amounts to different people
during the pendency of the case which lasted up to ten years. And before the decision in the
Kevlar case was released, she also gave money to respondent but she did not mention the
amount. Thus, she knew she would be acquitted.
Q You answered Senator Angara this way which we already quoted a while ago, "Alam ko
inayos ni Ms. Napoles iyon dahil may connect nga siya sa Sandiganbayan." You stated that the
connect is Justice Ong. Can you explain before us what you mean, "Alam ko inayos ni Ms.
Napoles iyon." What do you mean by that "inayos"?
A Kasi po ma' am meron kaming ledger ng Sandiganbayan case sa lahat ng nagastos ni Ms. Janet
Napoles, nilista ko po yon lahat. Kasi naririnig ko po kay Janet Napoles, parang pinsan ko po si
Janet Napoles, "Paano nagkaroon ng kaso ang ate ko? So nadiscover ko na Jang po na yun pala
yung Kevlar. So, mahigit one hundred million na nagastos po ni Ms. Napoles kasi di Jang naman
po si sir Justice Gregory Ong ...
xxx
Q Did you come to know to whom she gave all the money?
A Wala po siyang ... basta ang sabi niya inayos na niya si ... binaggit niya po si ... kasi si madam
hindi kasi nagki-keep kasi ako pinsan niya po kasi ako, nabanggit niya po si Justice Gregory
Ong. Sinabi niya nagbigay daw po siya ng pera kay Justice Ong pero she never mentioned kung
magkano yung amount.
xxx
Q Nagbigay ng pera kay Justice Gregory Ong?
A Opo, yung ang sabi niya (referring to Ms. Napoles).
Q To you?
A Yes, madam.
Q Do you remember when she made that kind of statement?
A Bago po ano madam, bago po lumabas yung decision kaya kampante na po si Ms. Napoles
bago lumabas yung decision na acquitted siya. Alam na niya. Sa Kevlar case.
xxx
Justice Gutierrez
Continue counsel.
Witness Luy
Kasi naikwento po madam ni Ms. Napoles na almost PlOO million na ang nagastos niya. Tapos
ang sabi ko nga po sa kanya: "Madam, P 100 million na sa halagang P3.8 lang na PO (purchase
order) sa Kevlar helmet, tapos P 100 million na ang nagastos mo?"
Q Did she tell you or explain to you to whom this P 100 million was paid? How was it spent?
A Basta ang natatandaan ko ... di ko na po matandaan ang mga dates kasi parang staggered. May
P5 million sa ibang tao ang kausap niya. Tapos ito naman tutulong ng ganito. lba-iba kasi
madam, eh.
Q But there was no showing the money was given to Justice Ong?
A Wala po pero nabanggit lang po niya (Ms. Napoles) sa akin na nagbigay po siya kay Justice
Ong, but she never mentioned the amount.
Continuing with his testimony, Benhur declared that in 2012, respondent went twice to Napoles'
office at the Discovery Suites Center, 25 ADB Avenue, Ortigas, Pasig City. On the first visit,
Napoles introduced Justice Ong to Benhur and her other employees.
Benhur narrated what transpired during that visit. According to him, Napoles has so much money
being placed at the Armed Forces of the Philippines and Police Savings and Loan Association,
Inc. (AFPSLAI) which offered 13% interest annually. Napoles called Benhur telling him that
respondent would like to avail of such interest for his BDO check of P25.5 million. To arrange
this, Napoles informed Benhur that she would just deposit respondent's P25.5 million in her
personal account with Metro bank. Then she would issue to respondent in advance eleven (11)
checks, each amounting to P282,000.00 as monthly interest, or a total of P3,102,000.00
equivalent to 13% interest. Upon Justice Ong's suggestion, the checks should be paid to cash. So,
Benhur prepared the corresponding eleven (11) checks, thus:
Q With respect to the Kevlar case, what participation did you have, if there was any?
Witness Luy
A Noon 2012 po kasi si Justice Gregory Ong po nasa unit 2501, yung office (of Ms. Napoles), so
kami ni Janet Napoles, nandito sa 2502 kasi yun po talaga ang office namin. Si Ms. Napoles po
sinabi niya sa akin, Ben, kasi si Ms. Napoles, may pera siyang madarni na pine-place niya po sa
AFPSLAI at yung AFPSLAI po ay nagbibigay po sa kanya o nagooffer ng 13% interest annually
po. So, ang nangyari po <loon, sabi ni Janet Napoles, si Justice Ong ho raw, gustong magkaroon
din ng interest parang ganoon. So tutulungan niya. So ang ginawa po namin x x x. Q Meaning to
say, Justice Ong would like to deposit money?
A Opo.
Q So he could get 13% interest?
A Opo, kasi tapos madam ang nangyari po pumunta na po si Ms. Napoles sa kanyang opisina.
Tinawag po niya ako kasi pinasulat na niya sa akin ang checke. So, ang ginawa po ni Ms.
Napoles, yung checke ni .. BDO check po kasi yun. Ang sabi sa akin ni Ms. Napoles, checke
daw po yun ni Justice Gregory Ong. Sa, BDO. So, di ko naman din po nakita Madam yung
nakalagay sa ...
Q So it is the check of Justice Ong, not the check of Ms. Napoles?
A Opo, ang amount po ng check madam ay P25.5 million ang amount noong BDO check na
inissue ...
Q That belongs to Justice Ong?
A Opo. Tapos madam, so ang ginawa po namin ni Ms. Napoles, dahil po 13% interest ang ino-
offer ng AFPSLAI, sabi ni Madam ganito na lang, Ben, ipasok na lang muna natin yung check
niya sa personal account ko. Ako na lang muna for the meantime, mag-iissue ng check sa kanya
para maavail ni Justice Ong yung interest. So, ang ginawa nan1in madam, P25.5 million times
13% interest, tapos divided by 12, lumalabas P282,000.00 or P283,000.00 or P281,000.00 po
madam kasi naground off kami sa P282,000.00. So, ang ginawa ni Madam, baga monthly. So
eleven (11) checks ang prinepare namin. Kung hindi po ako nagkakamali po, JLN Corporation
check ang ... Ako pa nga po ang nagsulat at saka bago po namin isinulat yung payee, inalam pa
po namin. x x x So, pumunta na naman si madam sa 2501 kasi nandoon si Justice Gregory Ong.
Noong bumalik siya, pay to cash na lang daw. So, makikita po sa records namin ni Ms. Napoles
na pumasok ang P25.5 million na amount sa kanyang account at the same time nag-issue siya ng
checke na P282,000.00 na eleven checks. Nagstart kami madam 2012, siguro sometime July or
August or mga ganoong buwan po. Basta 11 checks, hindi nalalayo doon. So, siguro tapos na.
Q But what actually turned out was that the money of Justice Ong was deposited at the bank but
the interest was paid in advance by Ms. Napoles, and actually the bank will pay Ms. Napoles the
advanced interest she paid to Justice Ong, is that clear? Is that the arrangement? Do you
understand me?
A Kasi ang nangyari po ma'am ganito e: yung P25.5 million ipinasok sa personal account ni Ms.
Napoles dito sa Metrobank. Metrobank kasi po yun e.
On the second visit of respondent to Napoles' office, they just engaged in conversation. She
ordered Chinese food for him which, according to Benhur, is his (respondent's) favorite.
On cross-examination, Benhur claimed that in his affidavits executed in the NBI, he did not
mention respondent's name. However, in his reply-affidavit filed with the Sandiganbayan, he
alleged that Napoles issued P282,000.00 (the amount stated in each of the 11 checks) but he did
not mention the name of the payee upon instruction of his lawyer, Atty. Baligod. Nonetheless, he
knew that the checks were issued to respondent.
II. Sula, also a whistle blower, testified that she was an employee of JLN Corporation. Her duties
included the formation of corporations by making use of the forms, applying for business
licenses, transfer of properties, purchase of cars, and others.
Sula corroborated Benhur's testimony that respondent visited the office of Napoles twice
sometime in 2012.
Sula was asked to explain her testimony before the Blue Ribbon Committee during the hearing
on September 26, 2013, quoted as follows:
The Chairman (Senator Teofisto Guingona III)
Sinabi ninyo na may tinawagan si Mrs. Napoles at sinabi niya, Malapit nang lumabas yung TRO
galing sa korte. May kilala pa ba si Janet Lim Napoles sa huwes sa korte sa Sandiganbayan?
xxx
Ms. Sula
Si Mr. Ong po. Justice Ong po.
The Chairman
Gregory Ong?
Ms. Sula
Opo.
The Chairman
Sa Sandiganbayan?
Ms. Sula
Opo.
The Chairman
Okay. With that, I will just have a closing statement before we leave the hearing.
Sula explained that the TRO mentioned by Napoles refers to the TRO to be issued by the
Sandiganbayan in the event the case involving the PIO billion PDAF scam against her is filed
with that court; and that Napoles told Sula and the other employees not to worry because she has
contact with the Sandiganbayan - respondent Justice Ong, thus:
Q Not the illegal detention case?
Witness Sula
A Hindi po, pag nakasuhan na po kami sa Sandiganbayan.
Q Okay, again?
A Sa pagkakaintindi po namin, ang sabi po ni Madam na it takes 4 to 5 years, so hihintayin niya

na maacquit, sabi niyang ganoon, ang pangalan niya para maluwag na tulungan kami. Ito po ang
pagkakaintindi namin na sa Sandiganbayan.
Q Yung PDAF?
A Opo, yung PDAF sa Sandiganbayan.
Q Pagdating ng kaso sa Sandiganbayan?
A Opo, kasi po ina-ano po niya, siya po tinitira na ni Benhur - si Madam tungkol sa PlO billion
scam. So, pinag-uusapan namin sa bahay niya sa South Garden Unit na, Madam, paano po yan,
pag lahat ng kaso na iyan dadaan sa lawmakers, dadaan yon sa Ombudsman at saka sa
Sandiganbayan? Sabi niya, "Huwag kayong mag-alala. Meron naman akong mga contact doon."
Sabi niyang ganoon sa Ombudsman at sa Sandiganbayan.
Q Is that in your affidavit?

A Wala po. Pero sinabi ko po doon sa part na yon (her testimony before the Senate Blue Ribbon
Committee) na meron na siyang kilala sa Ombudsman, pero hindi niya nabanggit ang pangalan.
Pero sa Sandiganbayan, ang alam namin kilala niya si Justice Ong.
Q Yun ang sagot niya kay Chairman Guingona. Di ba I read it a while ago?
A Opo, doon sa Sandiganbayan.
Sula also testified that every time Napoles talked to her and the other employees, she would say
that Justice Ong will help her in the Kevlar case. Sula's testimony is as follows:
Q x x x you told me that somebody will help in the Kevlar case?
A Opo. Sinabi po niya sa amin every time po pag nagkukwento siya, sinasabi niya na si Justice
Ong ang tumulong sa kanya para ma-clear po yung Kevlar case niya.
Sula likewise testified that Napoles told her and the other employees that she will fix (aayusin)
the "PDAF case" in the Sandiganbayan. Then they replied in jest that her acquaintance in that
court is respondent. Napoles retorted, "Ay huag na iyon kasi masyadong mataas ang talent fee."
xxxx
III. Aries Rufo, a Reporter of Rappler, testified that he cannot reveal who gave him the
photograph [of respondent beside Napoles and Senator Jinggoy Estrada] because he is shielded
by law and he has to protect his source.
When asked about his comment upon seeing the picture, Rufo said:
Initially, when I saw the picture, since I knew that Justice Ong was one of the members of the
division that handled the Kevlar case, it aroused my curiosity why he was in that picture. Second,
because in journalism, we also get to practice ethical standards, I immediately sensed though that
a Justice or a lawyer, that he should not be seen or be going to a party or be in an event where
respondent (Ms. Napoles) was in a case under his Division. He should not be in a situation that
would compromise the integrity of his office.
Rufo further testified that on August 27, 2013, he faxed a letter to respondent to "get his side
about the photo." The next day, he went to respondent's office and showed it to him. Respondent
was shocked. He explained that it must have been taken during one of the parties hosted by his
friend Senator Jinggoy Estrada; that he did not know that the woman in the picture is Napoles
because she did not appear during the hearing of the Kevlar case; and that such picture must have
been taken in one of those instances when a guest would like to pose with celebrities or public
figures.
xxxx
Respondent, in his defense, vehemently denied the imputations hurled against him.
1. He asserted that he could not be the contact or "connect" of Napoles at the
Sandiganbayan for he never met or came to know her during the pendency of the Kevlar
case;
2. Challenging Benhur's testimony that he fixed or "inayos" the Kevlar case, respondent
claimed that it was decided based on the merits by the Sandiganbayan Fourth Division as
a collegial body. The two other members of the court, Justice Jose R. Hernandez
(ponente) and Justice Maria Cristina J. Cornejo, are independent-minded jurists who
could not be pressured or influenced by anybody, not even by their peers;
3. On Benhur's allegation that respondent received an amount of money from Napoles

prior to the promulgation of the decision in the Kevlar case, respondent deplored the fact
that Benhur was attempting to tarnish his reputation without any proof. And that it is
unthinkable for him to have received money from Napoles considering that her mother,
brother, and sister-in-law were convicted;
4. Respondent admitted he went to Napoles' office twice, sometime in March 2012, after
the decision in the Kevlar case was promulgated in 2010 and narrated what prompted him
to do so, thus:
At the birthday party of Senator Jinggoy Estrada on February 17, 2012, Napoles approached him
and introduced herself. She engaged him in a casual conversation and thanked him for her
acquittal in the Kevlar case. Respondent replied she should thank her "evidence" instead, adding
that had the court found enough evidence against her, she would have been convicted. She talked
about her charity works like supporting Chinese priests, building churches and chapels in China,
and sponsoring Chinese Catholic priests. He was not interested though in what she was saying
until she mentioned the name of Msgr. Ramirez, former Parish Priest of Quiapo Church.
Respondent became interested because he has been a devotee of the Holy Black Nazarene since
he was a little boy. Napoles told him that Msgr. Ramirez has with him the robe of the Holy Black
Nazarene which has a healing power if one wears it. Then respondent asked if he can have access
to the robe so he can be cured of his ailment (prostate cancer) which he keeps only to himself
and to the immediate members of his family. Napoles made arrangement with Msgr. Ramirez
until respondent was able to drape the robe over his body for about one or two minutes in Quiapo
Church. He also received a fragrant ball of cotton which he keeps until now to heal any ailing
part of his body. That was a great deal for him. So out of courtesy, he visited Napoles in her
office and thanked her. That was his first visit.
Thereafter, Napoles kept on calling respondent, inviting him to her office, but he kept on
declining. Then finally after two weeks, he acceded for she might think he is "walang kwentang
tao." They just engaged in a small talk for about 30 minutes and had coffee.
5. Concerning Benhur's testimony that Napoles paid respondent an advanced interest consisting
of eleven (11) checks in the amount of P282,000.00 each and that he issued to her his BDO
check of P25.5 million which she deposited in her account, he claimed that "he never issued that
check as he did not intend to invest in AFPSLAI. In fact, he does not have any money deposited
there. Inasmuch as he did not issue any BDO check, it follows that Napoles could not have given
him those eleven (11) checks representing advanced interest. He further explained that he found
from the internet that in AFPSLAI, an investor can only make an initial deposit of P30,000.00
every quarter or Pl20,000.00 per year. The limit or ceiling is P3 million with an interest of 15%
or 16% per annum.
6. The whistle blower's testimony are conflicting and therefore lack credibility. While Sula
testified that Napoles told her that she did not want to approach respondent (should a case
involving the pork barrel scam be filed with the Sandiganbayan) because his talent fee is too
high, however, both whistle blowers claimed that he is Napoles' contact in the Sandiganbayan.
With respect to the Rappler Report, according to respondent, Rufo was insinuating four things: 1.
That there was irregularity in the manner the Kevlar case was decided;
2. That respondent was close to Napoles even during the pendency of the Kevlar case;
3. That respondent was attending parties of the Napoleses; and
4. That respondent was advising Napoles about legal strategies relative to the Kevlar case.
Respondent "dismissed all the above insinuations as false and without factual basis." As to the
last insinuation that he advised Napoles about legal strategies to be pursued in the Kevlar case,
respondent stressed that the case was decided by a collegial body and that he never interceded on
her behalf.
EVALUATION
xxxx
It bears stressing that before the Senate Blue Ribbon Committee, Benhur initially testified that
Napoles fixed or "inayos" the Kevlar case because she has a contact at the Sandiganbayan,
referring to respondent. Sula corroborated Benhur's testimony.
Testifying before the Senate Blue Ribbon Committee is certainly an ordeal. The witnesses and
everything they say are open to the public. They are subjected to difficult questions propounded
by the Senators, supposedly intelligent and knowledgeable of the subject and issues under
inquiry. And they can easily detect whether a person under investigation is telling the truth or
not. Considering this challenging and difficult setting, it is indubitably improbable that the two
whistle blowers would testify false! y against respondent.
Moreover, during the investigation of this case, Benhur and Sula testified in a candid,
straightforward, and categorical manner. Their testimonies were instantaneous, clear,
unequivocal, and carried with it the ring of truth.
In fact, their answers to the undersigned's probing questions were consistent with their
testimonies before the Senate Blue Ribbon Committee. During cross-examination, they did not
waver or falter. The undersigned found the two whistle blowers as credible witnesses and their
story untainted with bias and contradiction, reflective of honest and trustworthy witnesses.
The undersigned therefore finds unmeritorious respondent's claim that Benhur and Sula were
lying.
. . . respondent insisted he could not have intervened in the disposition of the Kevlar case
considering that Napoles' mother, brother and sister-in-law were convicted.
Respondent must have forgotten that Napoles' natural instinct was self-preservation. Hence, she
would avail of every possible means to be exonerated. Besides, respondent's belief that the two
members of his Division are independent-minded Jurists remains to be a mere allegation.
xxxx
With the undersigned's finding that there is credence in the testimonies of Benhur and Sula, there
is no need to stretch one's imagination to arrive at the inevitable conclusion that in "fixing"
Kevlar case, money could be the consideration ... Benhur testified he kept a ledger (already
shredded) of expenses amounting to P 100 million incurred by Napoles for the Sandiganbayan
during the pendency of the Kevlar case which extended up to ten years; and that Napoles told
him she gave respondent an undetermined sum of money.
Respondent maintains that the testimonies of Benhur and Sula are pure hearsay, inadmissible in
evidence:
Justice Ong
Your honor, since these are all accusations against me by Luy and Sula, and according to Luy
and Sula, these were only told to them by Napoles, always their statements were ... they do not
have personal knowledge, it was only told to them by Napoles, is it possible that we subpoena
Napoles so that the truth will come out? If. ..
xxxx
Justice Gutierrez
That is your prerogative.
Justice Ong
I am willing to take the risk although I know I am not an acquaintance of Napoles. Just to clear
my name whether I should be hung or I should not be hung.
xxxx
Atty. Geronilla
I don't think it would be necessary, your honor.
Justice Gutierrez (to Atty. Geronilla)
Discuss this matter with your client, file a motion, then we will see.
However, respondent and his counsel did not take any action on the undersigned's suggestion.
They did not present Napoles to rebut the testimonies of Benhur and Sula. Significantly,
respondent failed to consider that his testimony is likewise hearsay. He should have presented
Msgr. Ramirez and Napoles as witnesses to support his claim regarding their role which enabled
him to wear the robe of the Holy Black Nazarene.
x x xx
Respondent's acts of allowing himself to be Napoles' contact in the Sandiganbayan, resulting in

the fixing of the Kevlar case, and of accepting money from her, constitute gross misconduct, a
violation of the New Code of Judicial Conduct for the Philippine Judiciary.
xxxx
That Benhur personally prepared the eleven (11) checks which Napoles handed to respondent led
the undersigned to conclude without hesitation that this charge is true. It is highly inconceivable
that Benhur could devise or concoct his story. He gave a detailed and lucid narration of the
events, concluding that actually Napoles gave respondent P3, 102,000.00 as advanced interest.
According to respondent, the purpose of his first visit was to thank Napoles for making it
possible for him to wear the Holy Black Nazarene's robe. Even assuming it is true, nonetheless it
is equally true that during that visit, respondent could have transacted business with Napoles.
Why should Napoles pay respondent an advanced interest of P3,102,000.0 with her own money
if it were not a consideration for a favor?
Respondent's transgression pertains to his personal life and no direct relation to his judicial
function. It is not misconduct but plain dishonesty. His act is unquestionably disgraceful and
renders him morally unfit as a member of the Judiciary and unworthy of the privileges the law
confers on him. Furthermore, respondent's conduct supports Benhur's assertion that he received
money from Napoles.
Dishonesty likewise violates Canon 2 (1 and 2) on Integrity of the same Code providing in part
that judges must ensure that their conduct is above reproach and must reaffirm the people's faith
in the integrity of the Judiciary.
Indeed, respondent should not stay in his position even for a moment.
xxxx
...From respondent's end, there was nothing wrong when he visited Napoles twice in her office
considering that the visits took place long after the promulgation of the decision in the Kevlar
case.
Contrary to respondent's submission, such acts also constitute gross misconduct in violation of
Canon 4 on Propriety of the same Code. Section 1 provides that judges shall avoid impropriety
and the appearance of impropriety in all of their activities .
. . . respondent's reason for his first visit was to thank Napoles for her help in making it possible
for him to wear the robe of the Holy Black Nazarene. Instead of visiting her, respondent could
have extended his gratitude by simply calling her by phone. Worse, he visited her again because
she may think he is an unworthy person. This is an extremely frail reason. He was seen by the
whistle blowers and their co-workers who, without doubt, readily confirmed that he was Napoles'
contact at the Sandiganbayan and that he "fixed" the decision in the Kevlar case.
Respondent cannot be excused for his unconcern for the position he holds. Being aptly perceived
as the visible personification of law and justice, his personal behavior, not only while in the
performance of official duties but also outside the court, must be beyond reproach. A judicial
office circumscribes a personal conduct and imposes a number of inhibitions, whose faithful
observance is the price one has to pay for holding an exalted position.
xxxx
On the photograph showing respondent
with Senator Jinggoy Estrada and Napoles.
xxxx
This incident manifests respondent's disregard of the dictum that propriety and the appearance of
propriety are essential to the performance of all the activities of a judge. This exacting standard
of decorum is demanded from judges to promote public confidence in the integrity of the
Judiciary.
In joining Senator Estrada and Napoles in a picture taking, respondent gave a ground for
reproach by reason of impropriety. It bears reiterating Canon 4 (1) on Propriety of the same Code
which provides that judges shall avoid impropriety and the appearance of impropriety in all of
their activities.
Respondent maintained that he did not know Napoles at that time because she was not present
before the Sandiganbayan during the hearing of the Kevlar case for she must have waived her
appearance. Respondent's explanation lacks merit. That court could not have acquired
jurisdiction over her if she did not appear personally for arraignment.
Of utmost significance is the fact that this is not the first time that respondent has been charged
administratively. In "Assistant Special Prosecutor Ill Rohermina J Jamsani-Rodriguez v. Justices
Gregory S. Ong, Jose R. Hernandez and Rodolfo A. Ponferrada, Sandiganbayan,'' the Supreme
Court found respondent Justice Ong guilty of violation of PD 1606 and The Revised Internal
Rules of the Sandiganbayan for nonobservance of collegiality in hearing criminal cases in the
Hall of Justice, Davao City. Instead of siting as a collegial body, the members of the
Sandiganbayan Fourth Division adopted a different procedure. The Division was divided into
two. As then Chairperson of the Division, respondent was ordered to pay a fine of P15,000.00
with a stern warning that a repetition of the same or similar offense shall be dealt with more
severely.
xxxx
...the undersigned cannot hold back her skepticism regarding the acquittal of Napoles. The
Sandiganbayan Fourth Division, of which respondent was the Chairman, held that Napoles did
not conspire with the suppliers in the questionable purchase of the Kevlar helmets as she was not
one of the "dealer-payees" in the transaction in question and that there was no proof of an overt
act on her part. How could the Fourth Division arrive at such conclusion? The Decision itself
indicates clearly that ( 1) Napoles was following up the processing of the documents; (2) that she
was in charge of the delivery of the helmets; and (3) the checks amounting to P3,864,310.00 as
payment for the helmets were deposited and cleared in only one bank account, Security Bank
Account No. 512-000-2200, in the name of Napoles.
Considering this glaring irregularity, it is safe to conclude that indeed respondent has a hand in
the acquittal of Napoles. All along, the whistle blowers were telling the truth.
xxxx
RECOMMENDATION
IN VIEW OF THE FOREGOING, It is respectfully recommended, for consideration of the

Honorable Court, that respondent Justice Gregory S. Ong be found GUILTY of gross
misconduct, dishonesty, and impropriety, all in violations of the New Code of Judicial Conduct
for the Philippine Judiciary and be meted the penalty of DISMISSAL from the service WITH
FORFEITURE of all retirement benefits, excluding accrued leave credits, and WITH
PREJUDICE to reemployment to any government, including government-owned or controlled
corporations.
xxxx
The Court's Ruling
This Court adopts the findings, conclusions and recommendations of the Investigating Justice
which are well-supported by the evidence on record.
Based on the testimonies of Luy, Sula and Rufo, the Investigating Justice formulated the charges
against the respondent, as follows:
1. Respondent acted as contact of Napoles in connection with the Kevlar case while it
was pending in the Sandiganbayan Fourth Division wherein he is the Chairman;
2. Respondent, being Napoles' contact in the Sandiganbayan, fixed the Kevlar case
resulting in her acquittal;
3. Respondent received an undetermined amount of money from Napoles prior to the

promulgation of the decision in the Kevlar case thus, she was sure ("kampante")of her
acquittal; 4. Respondent visited Napoles in her office where she handed to him eleven (ll)
checks, each amounting to P282,000.00 or a total of P3,102,000.00, as advanced interest
for his P25.5 million BDO check she deposited in her personal account; and
5. Respondent attended Napoles' parties and was photographed with Senator Estrada and
Napoles.11
Respondent thus stands accused of gross misconduct, partiality and corruption or bribery during
the pendency of the Kevlar case, and impropriety on account of his dealing and socializing with
Napoles after her acquittal in the said case. Additionally, respondent failed to disclose in his
September 26, 2013 letter to Chief Justice Sereno that he had actually visited Napoles at her
office in 2012, as he vehemently denied having partied with or attended any social event hosted
by her.
Misconduct is a transgression of some established and definite rule of action, a forbidden act, a
dereliction of duty, unlawful behavior, willful in character, improper or wrong behavior; while
·"gross" has been defined as "out of all measure beyond allowance; flagrant; shameful; such
conduct as is not to be excused."12 We agree with Justice Sandoval-Gutierrez that respondent's
association with Napoles during the pendency and after the promulgation of the decision in the
Kevlar case resulting in her acquittal, constitutes gross misconduct notwithstanding the absence
of direct evidence of corruption or bribery in the rendition of the said judgment.
We cannot overemphasize that in administrative proceedings, only substantial evidence, i.e., that
amount of relevant evidence that a reasonable mind might accept as adequate to support a
conclusion, is required. The standard of substantial evidence is satisfied when there is reasonable
ground to believe that respondent is responsible for the misconduct complained of, even if such
evidence might not be overwhelming or even preponderant.13
The testimonies of Luy and Sula established that Napoles had been in contact with respondent
("nag-uusap sila") during the pendency of the Kevlar case. As Napoles' trusted staff, they
(especially Luy who is a cousin) were privy to her daily business and personal activities. Napoles
constantly updated them of developments regarding the case. She revealed to them that she has a
"connect" or "contact" in the Sandiganbayan who will help "fix" the case involving her, her
mother, brother and some employees. Having closely observed and heard Napoles being
confident that she will be acquitted even prior to the promulgation of the decision in the Kevlar
case, they were convinced she was indeed in contact with respondent, whose identity was earlier
divulged by Napoles to Luy. Luy categorically testified that Napoles told him she gave money to
respondent but did not disclose the amount. There was no reason for them to doubt Napoles'
statement as they even keep a ledger detailing her expenses for the "Sandiganbayan," which
reached Pl 00 million. Napoles' information about her association with respondent was
confirmed when she was eventually acquitted in 2010 and when they saw respondent visit her
office and given the eleven checks issued by Napoles in 2012.
Respondent maintains that the testimonies of Luy and Sula were hearsay as they have no
personal knowledge of the matters they were testifying, which were merely told to them by
Napoles. Specifically, he points to portions of Sula's testimony indicating that Napoles had not
just one but "contact persons" in Ombudsman and Sandiganbayan; hence, it could have been
other individuals, not him, who could help Napoles "fix" the Kevlar case, especially since
Napoles never really disclosed to Sula who was her (Napoles) contact at the Sandiganbayan and
at one of their conversations Napoles even supposedly said that respondent's "talent fee" was too
high. Bribery is committed when a public officer agrees to perform an act in connection with the
performance of official duties in consideration of any offer, promise, gift or present received.14
Ajudge who extorts money from a party-litigant who has a case before the court commits a
serious misconduct and this Court has condemned such act in the strongest possible terms.
Particularly because it has been committed by one charged with the responsibility of
administering the law and rendering justice, it quickly and surely corrodes respect for law and
the courts.15
An accusation of bribery is easy to concoct and difficult to disprove. The complainant must
against the respondent judge connotes a grave misconduct, the quantum of proof required should
be more than substantial.16 Concededly, the evidence in this case is insufficient to sustain the
bribery and corruption charges against the respondent. Both Luy and Sula have not witnessed
respondent actually receiving money from Napoles in exchange for her acquittal in the Kevlar
case. Napoles had confided to Luy her alleged bribe to respondent.
Notwithstanding the absence of direct evidence of any corrupt act by the respondent, we find
credible evidence of his association with Napoles after the promulgation of the decision in the
Kevlar case. The totality of the circumstances of such association strongly indicates respondent's
corrupt inclinations that only heightened the public's perception of anomaly in the decision-
making process. By his act of going to respondent at her office on two occasions, respondent
exposed himself to the suspicion that he was partial to Napoles. That respondent was not the
ponente of the decision which was rendered by a collegial body did not forestall such suspicion
of partiality, as evident from the public disgust generated by the publication of a photograph of
respondent together with Napoles and Senator Jinggoy Estrada. Indeed, the context of the
declarations under oath by Luy and Sula before the Senate Blue Ribbon Committee, taking place
at the height of the "Pork Barrel" controversy, made all the difference as respondent himself
acknowledged. Thus, even in the present administrative proceeding, their declarations are taken
in the light of the public revelations of what they know of that government corruption
controversy, and how it has tainted the image of the Judiciary.
The hearsay testimonies of Luy and Sula generated intense public interest because of their close
relationship to Napoles and their crucial participation in her transactions with government
officials, dubbed by media as the "Pork Barrel Queen." But as aptly observed by Justice
SandovalGutierrez, the "challenging and difficult setting" of the Senate hearings where they first
testified, made it highly improbable that these whistle blowers would testify against the
respondent. During the investigation of this case, Justice Sandoval-Gutierrez described their
manner of testifying as "candid, straightforward and categorical." She likewise found their
testimonies as "instantaneous, clear, unequivocal, and carried with it the ring of truth," and more
important, these are consistent with their previous testimonies before the Senate; they never
wavered or faltered even during cross-examination.
It is a settled rule that the findings of investigating magistrates are generally given great weight
by the Court by reason of their unmatched opportunity to see the deportment of the witnesses as
they testified.17 The rule which concedes due respect, and even finality, to the assessment of
credibility of witnesses by trial judges in civil and criminal cases applies a fortiori to
administrative cases.18 In particular, we concur with Justice Sandoval-Gutierrez's assessment on
the credibility of Luy and Sula, and disagree with respondent's claim that these witnesses are
simply telling lies about his association with Napoles.
Contrary to respondent's submission, Sula in her testimony said that whenever Napoles talked
about her contacts in the Ombudsman and Sandiganbayan, they knew that insofar as the
Sandiganbayan was concerned, it was understood that she was referring to respondent even as
she may have initially contacted some persons to get to respondent, and also because they have
seen him meeting with Napoles at her office. It appears that Napoles made statements regarding
the Kevlar case not just to Luy but also to the other employees of JLN Corporation. The
following are excerpts from Sula's testimony on direct examination, where she even hinted at
their expected outcome of the Kevlar case:
Atty. Benipayo
Q So, Ms. Sula, what were the statements being made by Ms. Janet Lim Napoles regarding her
involvement in the Kevlar case, or how she was trying to address the problem with the Kevlar
case pending before the Sandiganbayan?
Witness Sula
A Ang alam ko po kasi marami po siyang kinaka-usap na mga lawyers na binabayaran niya para
tulungan siya kay Gregory Ong sa Kevlar case. Tapos, sa kalaunan po, nasabi na niya sa amin na
mcron na po siyang nakilala sa Sandiganbayan na nagngangalang Justice Gregory Ong. Tapos,
sabi niya, siya po ang tutulong sa amin para ma-clear kami. Pero hindi niya sinabi na meron din
pong ma ... sasagot sa kaso. Hindi po lahat, kasi po dalawa sa mga empleyado niya, bale apat,
dalawang empleyado niya, isang kapatid niya at sister-in-law ang mag-aano sa kaso pati yung
mother niya na namatay na ay sasagot din sa kaso. Siya Jang at saka yung asawa niya ang bale
makli-clear sa kaso.
Q So, she told you that two (2) employees, one (1) sister-in-law and one brother will answer for
the case and Janet Lim Napoles and her husband will be acquitted, is that right?
A Yun po ang aking pagkaka-alam kasi po, nag-petition po kasi sila eh, yung mga officemates
ko. Nagkaroon ng probation. Noong lumabas ang hatol, meron silang probation period.
xxxx
Q Which you told me that somebody will help in the Kevlar case?
A Opo. Sinabi po niya sa amin everytime po pag nagkukwento siya, sinasabi niya na si Justice
Ong ang tutulong sa kanya para ma-clear po yung Kevlar case niya.
x x x x19 (Emphasis supplied.)
As it turned out, Napoles' husband was dropped from the two informations while her mother,
brother and sister-in-law were convicted in the lesser charge of falsification of public documents.
Apparently, after her acquittal, Napoles helped those convicted secure a probation. But as stated
in our earlier resolution, the Court will no longer delve into the merits of the Kevlar case as the
investigation will focus on respondent's administrative liability.
Respondent's act of voluntarily meeting with Napoles at her office on two occasions was grossly
improper and violated Section 1, Canon 4 (Propriety) of the New Code of Judicial Conduct,
which took effect on June 1, 2004.
activities.
A judge must not only be impartial but must also appear to be impartial and that fraternizing with
litigants tarnishes this appearance.20 Public confidence in the Judiciary is eroded by
irresponsible or improper conduct of judges. A judge must avoid all impropriety and the
appearance thereof. Being the subject of constant public scrutiny, a judge should freely and
willingly accept restrictions on conduct that might be viewed as burdensome by the ordinary
citizen.21
In Caneda v. Alaan,22 we held that:
Judges are required not only to be impartial but also to appear to be so, for appearance is an
essential manifestation of reality. Canon 2 of the Code of Judicial Conduct enjoins judges to
avoid not just impropriety in their conduct but even the mere appearance of impropriety.
They must conduct themselves in such a manner that they give no ground for reproach.
[Respondent's] acts have been less than circumspect. He should have kept himself free from any
appearance of impropriety and endeavored to distance himself from any act liable to create an
impression of indecorum.
xxxx
Indeed, respondent must always bear in mind that:

"A judicial office traces a line around his official as well as personal conduct, a price one has to
pay for o ccupying an exalted position in the judiciary, beyond which he may not freely venture.
Canon 2 of the Code of Judicial Conduct enjoins a judge to avoid not just impropriety in the
performance of judicial duties but in all his activities whether in his public or private life. He
must conduct himself in a manner that gives no ground for reproach." (Emphasis supplied.)
On this score, our previous pronouncements have enjoined judges to avoid association or
socializing with persons who have pending cases before their court. Respondent cites the case of
Abundo v. Mania, Jr.23 where this Court did not find fault with a judge who was charged with
fraternizing with his lawyer-friend. In that case, we said:
Respondent admits that he and Atty. Pajarillo became close friends in 1989 when they were both
RTC judges stationed in Naga City. Since they both resided in Camarines Norte, Atty. Pajarillo
hitched rides with respondent to Daet, Camarines Norte in the latter's car.
In his Comment, respondent claims that he leaves the door to his chambers open to lawyers or
parties with official court business, whose requests and complaints regarding their cases he
listens to in full view of his staff, who are witnesses to his transparency and honesty in
conducting such dialogues. He also admits that Atty. Pajarillo has been to his house on several
occasions, but only to make emergency long-distance calls to his children in Metro Manila. He,
however, denies that he and Atty. Pajarillo were frequently seen eating and drinking together in
public places.
We agree with Justice Buzon's finding that the evidence against respondent on this point was
insufficient, viz.:
"On the other hand, the admission of respondent that he attended two public functions where
Atty. Pajarillo was also present; that Atty. Pajarillo had been in his house twice or thrice and
used his telephone; and that he receives lawyers, including Atty. Pajarillo, and litigants inside his
chambers, the door to which is always open so that [the] staff could see that no under the table
transactions are taking place, is not proof that he is fraternizing with Atty. Pajarillo. A judge
need not ignore a former colleague and friend whenever they meet each other or when the latter
makes requests which are not in any manner connected with cases pending in his court. Thus,
Canon 30 of the Canons of Judicial Ethics provides:
'30. Social relations
It is not necessary to the proper performance of judicial duty that judges should live in retirement
or seclusion; it is desirable that, so far as the reasonable attention to the completion of their work
will permit, they continue to mingle in social intercourse, and that they should not discontinue
their interests in or appearance at meetings of members at the bar. A judge should, however, in
pending or prospective litigation before him be scrupulously careful to avoid such action as may
reasonably tend to waken the suspicion that his social or business relations or friendships
constitute an element in determining his judicial course.'"
The factual setting in Abundo v. Mania, Jr. is not similar to the present case because Napoles
was not a colleague or lawyer-friend but an accused in a former case before the Sandiganbayan's
Fourth Division chaired by respondent and which acquitted her from malversation charge. What
respondent perhaps want to underscore is the caveat for judges, in pending or prospective
litigation before them, to avoid such action as may raise suspicion on their partiality in resolving
or deciding the case. Thus, he emphasized in his Memorandum that he "never knew Napoles on a
personal level while she was still on trial as an accused in Kevlar helmet case." Respondent even
quoted Sula's testimony expressing her opinion that she finds nothing wrong with respondent
going to Napoles' office because at that time, the Kevlar case had already been terminated.
We do not share the view that the rule on propriety was intended to cover only pending and
prospective litigations.
Judges must, at all times, be beyond reproach and should avoid even the mere suggestion of
partiality and impropriety.24 Canon 4 of the New Code of Judicial Conduct states that "[p
]ropriety and the appearance of propriety are essential to the performance of all the activities of a
judge." Section 2 further provides:
SEC. 2. As a subject of constant public scrutiny, judges must accept personal restrictions that
might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In
particular, judges shall conduct themselves in a way that is consistent with the dignity of the
judicial office.
As we held in Sibayan-Joaquin v. Javellana25
... Judges, indeed, should be extra prudent in associating with litigants and counsel appearing
before them so as to avoid even a mere perception of possible bias or partiality. It is not
expected, of course, that judges should live in retirement or seclusion from any social
intercourse. Indeed, it may be desirable, for instance, that they continue, time and work
commitments permitting, to relate to members of the bar in worthwhile endeavors and in such
fields of interest, in general, as are in keeping with the noble aims and objectives of the legal
profession. In pending or prospective litigations before them, however, judges should be
scrupulously careful to avoid anything that may tend to awaken the suspicion that their personal,
social or sundry relations could influence their objectivity, for not only must judges possess
proficiency in law but that also they must act and behave in such manner that would assure, with
great comfort, litigants and their counsel of the judges' competence, integrity and independence.
In this light, it does not matter that the case is no longer pending when improper acts were
committed by the judge. Because magistrates are under constant public scrutiny, the termination
of a case will not deter public criticisms for acts which may cast suspicion on its disposition or
resolution. As what transpired in this case, respondent's association with Napoles has
unfortunately dragged the Judiciary into the "Pork Barrel" controversy which initially involved
only legislative and executive officials. Worse, Napoles' much-flaunted "contact" in the judiciary
is no less than a Justice of the Sandiganbayan, our special court tasked with hearing graft cases.
We cannot, by any stretch of indulgence and compassion, consider respondent's transgression as
a simple misconduct.
During his testimony, respondent acknowledged his violation of judicial ethics and its serious
repercussions, as shown by his answers to the questions from the Investigation Justice, viz:
Justice Gutierrez
What I am thinking Justice, as a Justice holding a very high position, could it not be possible for
you to just go to the Church of Quiapo and ask the priest there to help you or assist you, no
longer through Ms. Napoles?
Justice Ong
You cannot do that, your honor. Ever since when I was a small boy, I never got near the image of
the Mahal na Poon. Nobody can do that, your honor.
Justice Gutierrez
No, no. What I mean is that you can just go to the priest in Quiapo and make the proper request.
Why did you not do that?
Justice Ong
I don't know, your honor.
Justice Gutierrez
Because you have been suffering from that ailment, mass or whatever, and that you are a devotee
of the Black Nazarene. You could have gone to the Office of the priest there and had that request
for you to wear that robe of the Black Nazarene?
Justice Ong
Hindi ko po alam na may ganyan, your honor. I was only told by Napoles during that
conversation. Had I known that, siguro po pwede ko pong gawin. Had I known that there is such
a robe, maybe I will do that.
Justice Gutierrez
Okay. It happened already. But just to thank Ms. Napoles, I think Justice you should have been
very, very careful about your actuations. You should not have been seen in public, you know,
with a woman like her who was an accused before. You could have thanked her simply by
calling her. You could have relayed to her your true feelings that you are so grateful because of
her assistance. Were it not for her, you could not have worn that Holy Robe of the Black
Nazarene. You could have simply called her instead of going to her office; instead of, you know,
going to the Church of Santuario de San Antonio in Forbes Park. And you should have been
more careful not to be seen by the public with her considering that she was a former accused in
that case.
Justice Ong
I will heed to that advice, your honor.
Justice Gutierrez
Q And you admitted a while ago, during the interview conducted by Mr. Aries Rufo that. "That
is a lesson for me; that I should not have associated, you know, with a former respondent or
accused in a case before me." You admitted that? You said you learned you lesson. Was that the
first time you learned that kind of lesson, Mr. Justice? Or even before you took your oath as a
member of the Judiciary, you already knew that lesson, isn't it or was that the first time? That is
why you associated yourself with Senator Jinggoy Estrada who was accused before of plunder?
Justice Ong
Your honor, talking about ....
Justice Gutierrez
Q Do you admit you committed a lapse along that line?
Justice Ong
A Yes, your honor. You have to forgive me for that.26 (Emphasis supplied.)
In her report, Justice Sandoval-Gutierrez noted that respondent's purported reason for visiting
Napoles in her office remains uncorroborated, as Napoles and the Quiapo parish priest were not
presented as witnesses despite her suggestion to respondent and his counsel. On the other hand,
Luy's testimony on what transpired in one of respondent's meeting with Napoles at her office
appears to be the more plausible and truthful version. Expectedly, respondent denied having
issued a BDO check for P25 .5 million as claimed by Luy, and asserted he (respondent) did not
deposit any money to AFPSLAI. Unfortunately, Luy is unable to present documentary evidence
saying that, as previously testified by him before the Senate, most of the documents in their
office were shredded upon orders of Napoles when the "Pork Barrel Scam" controversy came
out.
Justice Sandoval-Gutierrez stated that the eleven checks of P282,000.00 supposed advance
interest for respondent's check deposit to AFPSLAI were given to respondent as consideration
for the favorable ruling in the Kevlar case.1âwphi1 Such finding is consistent with Luy's
testimony that Napoles spent a staggering PlOO million just to "fix" the said case. Under the
circumstances, it is difficult to believe that respondent went to Napoles office the second time
just to have coffee. Respondent's act of again visiting Napoles at her office, after he had
supposedly merely thanked her during the first visit, tends to support Luy's claim that respondent
had a financial deal with Napoles regarding advance interest for AFPSLAI deposit. The question
inevitably arises as to why would Napoles extend such an accommodation to respondent if not as
consideration for her acquittal in the Kevlar case? Respondent's controversial photograph alone
had raised adverse public opinion, with the media speculating on pay-offs taking place in the
courts.
Regrettably, the conduct of respondent gave cause for the public in general to doubt the honesty
and fairness of his participation in the Kevlar case and the integrity of our courts of justice.
Before this Court, even prior to the commencement of administrative investigation, respondent
was less than candid. In his letter to the Chief Justice where he vehemently denied having
attended parties or social events hosted by Napoles, he failed to mention that he had in fact
visited Napoles at her office. Far from being a plain omission, we find that respondent
deliberately did not disclose his social calls to Napoles. It was only when Luy and Sula testified
before the Senate and named him as the "contact" of Napoles in the Sandiganbayan, that
respondent mentioned of only one instance he visited Napoles ("This is the single occasion that
Sula was talking about in her supplemental affidavit x x x."27).
The Court finds that respondent, in not being truthful on crucial matters even before the
administrative complaint was filed against him motu proprio, is guilty of Dishonesty, a violation
of Canon 3 (Integrity) of the New Code of Judicial Conduct.
Dishonesty is a "disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of

integrity; lack of honesty, probity or integrity in principle; lack of fairness and
straightforwardness; disposition to defraud, deceive or betray."28 Dishonesty, being a grave
offense, carries the extreme penalty of dismissal from the service with forfeiture of retirement
benefits except accrued leave credits, and with perpetual disqualification from reemployment in
government service. Indeed, dishonesty is a malevolent act that has no place in the Judiciary.29
Under Section 11(A), Rule 140 of the Rules of Court, a respondent found guilty of a serious
charge may be penalized as follows:
SEC. 11. Sanctions. - A. If the respondent is guilty of a serious charge, any of the following
sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may
determine, and disqualification from reinstatement or appointment to any public office,
including governmentowned or -controlled corporations. Provided, however, that the
forfeiture of benefits shall in no case include accrued leave credits;
2. Suspension from office without salary and other benefits for more than three (3) but
not exceeding six (6) months; or
3. A fine of more than P20,000.00 but not exceeding P40,000.00. Considering that
respondent is not a first time offender and the charges of gross misconduct and
dishonesty are both grave offenses showing his unfitness to remain as a magistrate of the
special graft court, we deem it proper to impose the supreme penalty of dismissal.
WHEREFORE, the Court finds respondent Sandiganbayan Associate Justice Gregory S. Ong
GUILTY of GROSS MISCONDUCT, DISHONESTY and IMPROPRIETY, all in violations of
the New Code of Judicial Conduct for the Philippine Judiciary, for which he is hereby
DISMISSED from the service, with forfeiture of all retirement benefits, except accrued leave
credits, if any, and with prejudice to reemployment in any branch, agency or instrumentality of
the government including government-owned or -controlled corporations.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
MARIA LOURDES P. A. SERENO

Chief Justice
ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

(No Part)
TERESITA J. LEONARDO-DE ARTURO D. BRION
CASTRO* Associate Justice
Associate Justice
(No Part)
LUCAS P. BERSAMIN
DIOSDADO M. PERALTA*
Associate Justice
Associate Justice
MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.


BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

See Separate Concurring Opinion

FRANCIS H. JARDELEZA
Associate Justice
Associate Justice
Footnotes
* No Part.
1 Sections 6 and 11, Art. VIII of the 1987 Constitution state:
SEC. 6. The Supreme Court shall have administrative supervision over all courts
and the personnel thereof.
SEC. 11 .... The Supreme Court En Banc shall have the power to discipline judges
of lower courts, or order their dismissal by a vote of a majority of the Members
who actually took part in the deliberations on the issues in the case and voted
thereon.
2 Rollo, pp. 210-229.
3 Id. at 226-228.
4 Sourced from Internet - <http://www.rapp/er.com/newsbreak/37673-napoles-anti-grafi-

court-justice>and Decision in Criminal Case Nos. 26768-69 promulgated on October 28,
2010 and Resolution issued on September 20, 2011, records, Volume 8, pp. 11-52, 247-
254.
5 Rollo, pp. 258-282.
6 Id. at 278-281.
7 Id. at 198.
8 A s cited in the letter dated October 7, 2013, id. at 1.
9 Id. at 1-2.
10 Id. at 6-25.
11 Report and Recommendation, p. 16.
12 Camus, Jr. v. Alegre, 583 Phil. 738, 749 (2008).
13 Jallorina v. Taneo-Regner, A.M. No. P-11-2948, April 23 2012, 670 SCRA 301, 307,
citing Banaag v. Espeleta, A.M. No. P-11-3011, November 29, 2011, 2011, 661 SCRA
513, 521.
14 Art. 210, Revised Penal Code.
15 Atty. Velez v. Judge Flores, 445 Phil. 54, 64 (2003), citing Haw Tay v. Singayao, 238
Phil. 103, 107-108 (1987), Quiz v. Castano, 194 Phil. 187 ( 1981) and Nazareno v.
Almario, 335 Phil. 1122 (1997).
16 Ong v. Rosete, 484 Phil. 102, 113 (2004); Manalastas v. Flores, 466 Phil. 925, 938
(2004); Co v. Judge Calimag, Jr., 389 Phil. 389, 395 (2000), citing Castanos v. Escano,
Jr., 321 Phil. 527 (1995).
17 Gacad v. Clapis, Jr., A.M. No RTJ-10-2257, July 17, 2012, 676 SCRA 534, 543,
citing Ocampo v. Arcaya-Chua, A.M. No. RTJ-07-2093, April 23, 2010, 619 SCRA 59,
125, further citing VidallonMagto/is v. Salud, 506 Phil. 423, 442 (2005).
18 Id., citing Ferreras v. Eclipse, A.M. No. P-05-2085, January 20, 2010, 610 SCRA 359,
374.
19 TSN, February 12, 2014, pp. 71-73.
20 De Guzman, Jr. v. Sison, 407 Phil. 351, 374 (2001).
21 Padilla v. Zantua, Jr., A.M. No. MTJ-93-888, October 24, 1994, 237 SCRA 670, 675-
676.
22 425 Phil. 20, 26-27 (2002).
23 370 Phil. 850, 866-867 (1999).
24 Agundayv. Tresva/les, 377 Phil. 141, 155 (1999).
25 420 Phil. 584, 590 (2001).
26 TSN, March 21, 2014, pp. 52-54.
27 Comment of Justice Ong, p. 20.
28 De Vera v. Rimas, 577 Phil. 136, 142-143 (2008), citing Corpuz v. Ramiterre, 512
Phil. 506, 518 (2005).
29 Id. at 143, citing A Very Concerned Employee and Citizen v. Mateo, 565 Phil. 657,
665 (2007).
SUPREME COURT
Manila
EN BANC
G.R. No. 171268 September 14, 2010
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BRINGAS BUNAY y DAM-AT, Accused-Appellant.
RESOLUTION
BERSAMIN, J.:
The Regional Trial Court (RTC), Branch 26, in Luna, Apayao tried and found the accused guilty
of qualified rape in its decision dated December 11, 2001, the decretal portion of which reads:
WHEREFORE, finding the accused, BRINGAS BUNAY y DAM-AT guilty beyond reasonable
doubt of the crime of Rape as charged against him, this court hereby sentences said accused to
suffer the Supreme Penalty of DEATH.
The accused is further ordered to pay the victim, "AAA", the amount of Seventy Five Thousand
(P75,000.00) by way of civil indemnity plus exemplary and moral damages of Sixty Thousand
Pesos (P60,000.00).
The accused is ordered to be immediately shipped to New Bilibid Prisons, Muntinlupa City, for
imprisonment thereat while awaiting the review of this decision by the Supreme Court.
IT IS SO ORDERED.1
On December 13, 2001, the accused was committed to the New Bilibid Prison in Muntinlupa
City, per the certification issued on August 14, 2002 by the Director of the Bureau of
Corrections.2
The conviction was brought for automatic review, but the Court transferred the case to the CA
for intermediate review on November 9, 2004,3 conformably with People v. Mateo.4
On August 10, 2005, the Court of Appeals (CA) affirmed the conviction of the accused for
qualified rape in C.A.-G.R. No. CR HC No. 00758,5 viz:
IN LIGHT OF THE FOREGOING, the assailed Decision of the Regional Trial Court of Luna,
Apayao, Branch 26 in Criminal Case No. 5-2001 is hereby AFFIRMED.
SO ORDERED.
Following the CA’s denial of his motion for reconsideration, the accused now appeals to the
Court.
On April 20, 2010, the Court received the letter dated April 15, 2010 from Bureau of Corrections
Assistant Director for Operations Rodrigo A. Mercado, advising that the accused had died on
March 25, 2010 at the New Bilibid Prison Hospital in Muntinlupa City. The report of Dr.
Marylou V. Arbatin, Medical Officer III, revealed that the immediate cause of death had been
cardio-respiratory arrest, with pneumonia as the antecedent cause.
On June 22, 2010, the Court required the Bureau of Corrections to submit a certified true copy of
the death certificate of the accused.1avvphi1
By letter dated August 16, 2010, Armando T. Miranda, Chief Superintendent of the New Bilibid
Prison, submitted the death certificate of the accused.
Under the foregoing circumstances, the death of the accused during the pendency of his appeal in
this Court totally extinguished his criminal liability. Such extinction is based on Article 89 of the
Revised Penal Code, which pertinently provides:
Article 89. How criminal liability is totally extinguished. — Criminal liability is totally
extinguished:
1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability
therefor is extinguished only when the death of the offender occurs before final judgment.
xxx
The death of the accused likewise extinguished the civil liability that was based exclusively on
the crime for which the accused was convicted (i.e., ex delicto), because no final judgment of
conviction was yet rendered by the time of his death. Only civil liability predicated on a source
of
obligation other than the delict survived the death of the accused, which the offended party can
recover by means of a separate civil action.6
UPON THE FOREGOING CONSIDERATIONS, the appeal of the accused is dismissed, and
this criminal case is considered closed and terminated.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

(On Leave)
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B.
Associate Justice NACHURA
Associate Justice
(On Leave)
(On Leave)
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice


(On Leave)
JOSE PORTUGAL PEREZ
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice

Associate Justice
CERTIFICATION
in the above Resolution were reached in consultation before the case was assigned to the writer
of the opinion of the Court.
RENATO C. CORONA
Chief Justice
Footnotes
1
Original Records, p. 116.
2
CA Rollo, p. 30.
3
Id., p. 113.
4
G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.
5
CA Rollo, pp. 115-123; penned by Associate Justice Jose. L. Sabio, Jr. (retired) and
concurred in by Associate Justice Hakim Abdulwahid and Associate Justice Magdangal
De Leon.
6
People v. Bayotas, G.R. No. 102007, September 2, 1994, 236 SCRA 239.

SUPREME COURT
Manila
EN BANC
G.R. No. 176951 February 15, 2011
LEAGUE OF CITIES OF THE PHILIPPINES (LCP), Represented by LCP National

President Jerry P. Treñas; City of Calbayog, represented by Mayor Mel Senen S.
Sarmiento; and Jerry P. Treñas, in his personal capacity as Taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; Municipality of Baybay, Province of Leyte;
Municipality of Bogo, Province of Cebu; Municipality of Catbalogan, Province of Western
Samar; Municipality of Tandag, Province of Surigao del Sur; Municipality of Borongan,
Province of Eastern Samar; and Municipality of Tayabas, Province of Quezon,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177499

vs.
COMMISSION ON ELECTIONS; Municipality of Lamitan, Province of Basilan;
Municipality of Tabuk, Province of Kalinga; Municipality of Bayugan, Province of Agusan
del Sur; Municipality of Batac, Province of Ilocos Norte; Municipality of Mati, Province of
Davao Oriental; and Municipality of Guihulngan, Province of Negros Oriental,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178056

vs.
COMMISSION ON ELECTIONS; Municipality of Cabadbaran, Province of Agusan del
Norte; Municipality of Carcar, Province of Cebu; Municipality of El Salvador, Province of
Misamis Oriental; Municipality of Naga, Cebu; and Department of Budget and
Management, Respondents.
RESOLUTION
BERSAMIN, J.:
For consideration of this Court are the following pleadings:
1. Motion for Reconsideration of the "Resolution" dated August 24, 2010 dated and filed
on September 14, 2010 by respondents Municipality of Baybay, et al.; and
2. Opposition [To the "Motion for Reconsideration of the ‘Resolution’ dated August 24,
2010"].
Meanwhile, respondents also filed on September 20, 2010 a Motion to Set "Motion for
Reconsideration of the ‘Resolution’ dated August 24, 2010" for Hearing. This motion was,
however, already denied by the Court En Banc.
A brief background —
These cases were initiated by the consolidated petitions for prohibition filed by the League of
Cities of the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treñas, assailing
the constitutionality of the sixteen (16) laws,1 each converting the municipality covered thereby
into a component city (Cityhood Laws), and seeking to enjoin the Commission on Elections
(COMELEC) from conducting plebiscites pursuant to the subject laws.
In the Decision dated November 18, 2008, the Court En Banc, by a 6-5 vote,2 granted the
petitions and struck down the Cityhood Laws as unconstitutional for violating Sections 10 and 6,
Article X, and the equal protection clause.
In the Resolution dated March 31, 2009, the Court En Banc, by a 7-5 vote,3 denied the first
motion for reconsideration.
On April 28, 2009, the Court En Banc issued a Resolution, with a vote of 6-6,4 which denied the
second motion for reconsideration for being a prohibited pleading.
In its June 2, 2009 Resolution, the Court En Banc clarified its April 28, 2009 Resolution in this
wise—
As a rule, a second motion for reconsideration is a prohibited pleading pursuant to Section 2,

Rule 52 of the Rules of Civil Procedure which provides that: "No second motion for
reconsideration of a judgment or final resolution by the same party shall be entertained." Thus, a
decision becomes final and executory after 15 days from receipt of the denial of the first motion
However, when a motion for leave to file and admit a second motion for reconsideration is
granted by the Court, the Court therefore allows the filing of the second motion for
reconsideration. In such a case, the second motion for reconsideration is no longer a prohibited
pleading.
In the present case, the Court voted on the second motion for reconsideration filed by respondent
cities. In effect, the Court allowed the filing of the second motion for reconsideration. Thus, the
second motion for reconsideration was no longer a prohibited pleading. However, for lack of the
required number of votes to overturn the 18 November 2008 Decision and 31 March 2009
Resolution, the Court denied the second motion for reconsideration in its 28 April 2009
Resolution.5
Then, in another Decision dated December 21, 2009, the Court En Banc, by a vote of 6-4,6
declared the Cityhood Laws as constitutional.
On August 24, 2010, the Court En Banc, through a Resolution, by a vote of 7-6,7 resolved the Ad
Cautelam Motion for Reconsideration and Motion to Annul the Decision of December 21, 2009,
both filed by petitioners, and the Ad Cautelam Motion for Reconsideration filed by petitioners-
in-intervention Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City, and Oroquieta
City, reinstating the November 18, 2008 Decision. Hence, the aforementioned pleadings.
Considering these circumstances where the Court En Banc has twice changed its position on the
constitutionality of the 16 Cityhood Laws, and especially taking note of the novelty of the issues
involved in these cases, the Motion for Reconsideration of the "Resolution" dated August 24,
2010 deserves favorable action by this Court on the basis of the following cogent points:
1.
The 16 Cityhood Bills do not violate Article X, Section 10 of the Constitution.
Article X, Section 10 provides—
Section 10. No province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the criteria established
in the local government code and subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected.
The tenor of the ponencias of the November 18, 2008 Decision and the August 24, 2010
Resolution is that the exemption clauses in the 16 Cityhood Laws are unconstitutional because
they are not written in the Local Government Code of 1991 (LGC), particularly Section 450
thereof, as amended by Republic Act (R.A.) No. 9009, which took effect on June 30, 2001,
viz.—
Section 450. Requisites for Creation. –a) A municipality or a cluster of barangays may be
converted into a component city if it has a locally generated annual income, as certified by the
Department of Finance, of at least One Hundred Million Pesos (P100,000,000.00) for at least two
(2) consecutive years based on 2000 constant prices, and if it has either of the following
requisites:
xxxx
(c) The average annual income shall include the income accruing to the general fund, exclusive
of special funds, transfers, and non-recurring income. (Emphasis supplied)
Prior to the amendment, Section 450 of the LGC required only an average annual income, as
certified by the Department of Finance, of at least P20,000,000.00 for the last two (2)
consecutive years, based on 1991 constant prices.
Before Senate Bill No. 2157, now R.A. No. 9009, was introduced by Senator Aquilino Pimentel,
there were 57 bills filed for conversion of 57 municipalities into component cities. During the
11th Congress (June 1998-June 2001), 33 of these bills were enacted into law, while 24 remained
as pending bills. Among these 24 were the 16 municipalities that were converted into component
cities through the Cityhood Laws.
The rationale for the enactment of R.A. No. 9009 can be gleaned from the sponsorship speech of
Senator Pimentel on Senate Bill No. 2157, to wit—
Senator Pimentel. Mr. President, I would have wanted this bill to be included in the whole set of
proposed amendments that we have introduced to precisely amend the Local Government Code.
However, it is a fact that there is a mad rush of municipalities wanting to be converted into cities.
Whereas in 1991, when the Local Government was approved, there were only 60 cities, today the
number has increased to 85 cities, with 41 more municipalities applying for conversion to the
same status. At the rate we are going, I am apprehensive that before long this nation will be a
nation of all cities and no municipalities.
It is for that reason, Mr. President, that we are proposing among other things, that the financial
requirement, which, under the Local Government Code, is fixed at P20 million, be raised to P100
million to enable a municipality to have the right to be converted into a city, and the P100
million should be sourced from locally generated funds.
What has been happening, Mr. President, is, the municipalities aspiring to become cities say that
they qualify in terms of financial requirements by incorporating the Internal Revenue share of the
taxes of the nation on to their regularly generated revenue. Under that requirement, it looks clear
to me that practically all municipalities in this country would qualify to become cities.
It is precisely for that reason, therefore, that we are seeking the approval of this Chamber to
amend, particularly Section 450 of Republic Act No. 7160, the requisite for the average annual
income of a municipality to be converted into a city or cluster of barangays which seek to be
converted into a city, raising that revenue requirement from P20 million to P100 million for the
last two consecutive years based on 2000 constant prices.8
While R.A. No. 9009 was being deliberated upon, Congress was well aware of the pendency of
conversion bills of several municipalities, including those covered by the Cityhood Laws,
desiring to become component cities which qualified under the P20 million income requirement
of the old Section 450 of the LGC. The interpellation of Senate President Franklin Drilon of
Senator Pimentel is revealing, thus—
THE PRESIDENT. The Chair would like to ask for some clarificatory point.
SENATOR PIMENTEL. Yes, Mr. President.
THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the
conversion of a number of municipalities into cities and which qualify under the present
standard.
We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the
Chamber apply the standard as proposed in this bill to those bills which are pending for
consideration?
SENATOR PIMENTEL. Mr. President, it might not be fair to make this bill, on the assumption
that it is approved, retroact to the bills that are pending in the Senate conversion from
municipalities to cities.
THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it
not become a policy of the Chamber, assuming that this bill becomes a law tomorrow, that it will
apply to those bills which are already approved by the House under the old version of the Local
Government Code and are now pending in the Senate? The Chair does not know if we can craft a
language which will limit the application to those which are not yet in the Senate. Or is that a
policy that the Chamber will adopt?
SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that
provision because what we are saying here will form part of the interpretation of this bill.
Besides, if there is no retroactivity clause, I do not think that the bill would have any retroactive
effect.
THE PRESIDENT. So the understanding is that those bills which are already pending in the
Chamber will not be affected.
SENATOR PIMENTEL. These will not be affected, Mr. President.
THE PRESIDENT. Thank you Mr. Chairman.9
Clearly, based on the above exchange, Congress intended that those with pending cityhood bills
during the 11th Congress would not be covered by the new and higher income requirement of
P100 million imposed by R.A. No. 9009. When the LGC was amended by R.A. No. 9009, the
amendment carried with it both the letter and the intent of the law, and such were incorporated in
the LGC by which the compliance of the Cityhood Laws was gauged.
Notwithstanding that both the 11th and 12th Congress failed to act upon the pending cityhood
bills, both the letter and intent of Section 450 of the LGC, as amended by R.A. No. 9009, were
carried on until the 13th Congress, when the Cityhood Laws were enacted. The exemption
clauses found in the individual Cityhood Laws are the express articulation of that intent to
exempt respondent municipalities from the coverage of R.A. No. 9009.
Even if we were to ignore the above quoted exchange between then Senate President Drilon and
Senator Pimentel, it cannot be denied that Congress saw the wisdom of exempting respondent
municipalities from complying with the higher income requirement imposed by the amendatory
R.A. No. 9009. Indeed, these municipalities have proven themselves viable and capable to
become component cities of their respective provinces. It is also acknowledged that they were
centers of trade and commerce, points of convergence of transportation, rich havens of
agricultural, mineral, and other natural resources, and flourishing tourism spots. In this regard, it
is worthy to mention the distinctive traits of each respondent municipality, viz—
Batac, Ilocos Norte – It is the biggest municipality of the 2nd District of Ilocos Norte, 2nd largest
and most progressive town in the province of Ilocos Norte and the natural convergence point for
the neighboring towns to transact their commercial ventures and other daily activities. A growing
metropolis, Batac is equipped with amenities of modern living like banking institutions, satellite
cable systems, telecommunications systems. Adequate roads, markets, hospitals, public transport
systems, sports, and entertainment facilities. [Explanatory Note of House Bill No. 5941,
introduced by Rep. Imee R. Marcos.]
El Salvador, Misamis Oriental – It is located at the center of the Cagayan-Iligan Industrial

Corridor and home to a number of industrial companies and corporations. Investment and
financial affluence of El Salvador is aptly credited to its industrious and preserving people. Thus,
it has become the growing investment choice even besting nearby cities and municipalities. It is
home to Asia Brewery as distribution port of their product in Mindanao. The Gokongwei Group
of Companies is also doing business in the area. So, the conversion is primarily envisioned to
spur economic and financial prosperity to this coastal place in North-Western Misamis Oriental.
[Explanatory Note of House Bill No. 6003, introduced by Rep. Augusto H. Bacullo.]
Cabadbaran, Agusan del Norte – It is the largest of the eleven (11) municipalities in the province
of Agusan del Norte. It plays strategic importance to the administrative and socio-economic life
and development of Agusan del Norte. It is the foremost in terms of trade, commerce, and
industry. Hence, the municipality was declared as the new seat and capital of the provincial
government of Agusan del Norte pursuant to Republic Act No. 8811 enacted into law on August
16, 2000. Its conversion will certainly promote, invigorate, and reinforce the economic potential
of the province in establishing itself as an agro-industrial center in the Caraga region and
accelerate the development of the area. [Explanatory Note of House Bill No. 3094, introduced by
Rep. Ma. Angelica Rosedell M. Amante.]
Borongan, Eastern Samar – It is the capital town of Eastern Samar and the development of
Eastern Samar will depend to a certain degree of its urbanization. It will serve as a catalyst for
the modernization and progress of adjacent towns considering the frequent interactions between
the populace. [Explanatory Note of House Bill No. 2640, introduced by Rep. Marcelino C.
Libanan.]
Lamitan, Basilan – Before Basilan City was converted into a separate province, Lamitan was the
most progressive part of the city. It has been for centuries the center of commerce and the seat of
the Sultanate of the Yakan people of Basilan. The source of its income is agro-industrial and
others notably copra, rubber, coffee and host of income generating ventures. As the most
progressive town in Basilan, Lamitan continues to be the center of commerce catering to the
municipalities of Tuburan, Tipo-Tipo and Sumisip. [Explanatory Note of House Bill No. 5786,
introduced by Rep. Gerry A. Salapuddin.]
Catbalogan, Samar – It has always been the socio-economic-political capital of the Island of
Samar even during the Spanish era. It is the seat of government of the two congressional districts
of Samar. Ideally located at the crossroad between Northern and Eastern Samar, Catbalogan also
hosts trade and commerce activates among the more prosperous cities of the Visayas like
Tacloban City, Cebu City and the cities of Bicol region. The numerous banks and
telecommunication facilities showcases the healthy economic environment of the municipality.
The preeminent and sustainable economic situation of Catbalogan has further boosted the call of
residents for a more vigorous involvement of governance of the municipal government that is
inherent in a city government. [Explanatory Note of House Bill No. 2088, introduced by Rep.
Catalino V. Figueroa.]
Bogo, Cebu – Bogo is very qualified for a city in terms of income, population and area among
others. It has been elevated to the Hall of Fame being a five-time winner nationwide in the clean
and green program. [Explanatory Note of House Bill No. 3042, introduced by Rep. Clavel A.
Martinez.]
Tandag, Surigao del Sur – This over 350 year old capital town the province has long sought its
conversion into a city that will pave the way not only for its own growth and advancement but
also help in the development of its neighboring municipalities and the province as a whole.
Furthermore, it can enhance its role as the province’s trade, financial and government center.
[Explanatory Note of House Bill No. 5940, introduced by Rep. Prospero A. Pichay, Jr.]
Bayugan, Agusan del Sur – It is a first class municipality and the biggest in terms of population
in the entire province. It has the most progressive and thickly populated area among the 14
municipalities that comprise the province. Thus, it has become the center for trade and commerce
in Agusan del Sur. It has a more developed infrastructure and facilities than other municipalities
in the province. [Explanatory Note of House Bill No. 1899, introduced by Rep. Rodolfo
"Ompong" G. Plaza.]
Carcar, Cebu – Through the years, Carcar metamorphosed from rural to urban and now boast of
its manufacturing industry, agricultural farming, fishing and prawn industry and its thousands of
large and small commercial establishments contributing to the bulk of economic activities in the
municipality. Based on consultation with multi-sectoral groups, political and non-government
agencies, residents and common folk in Carcar, they expressed their desire for the conversion of
the municipality into a component city. [Explanatory Note of House Bill No. 3990, introduced
by Rep. Eduardo R. Gullas.]
Guihulngan, Negros Oriental – Its population is second highest in the province, next only to the
provincial capital and higher than Canlaon City and Bais City. Agriculture contributes heavily to
its economy. There are very good prospects in agricultural production brought about by its
favorable climate. It has also the Tanon Strait that provides a good fishing ground for its
numerous fishermen. Its potential to grow commercially is certain. Its strategic location brought
about by its existing linkage networks and the major transportation corridors traversing the
municipality has established Guihulngan as the center of commerce and trade in this part of
Negros Oriental with the first congressional district as its immediate area of influence. Moreover,
it has beautiful tourist spots that are being availed of by local and foreign tourists. [Explanatory
Note of House Bill No. 3628, introduced by Rep. Jacinto V. Paras.]
Tayabas, Quezon – It flourished and expanded into an important politico-cultural center in [the]
Tagalog region. For 131 years (1179-1910), it served as the cabecera of the province which
originally carried the cabecera’s own name, Tayabas. The locality is rich in culture, heritage and
trade. It was at the outset one of the more active centers of coordination and delivery of basic,
regular and diverse goods and services within the first district of Quezon Province. [Explanatory
Note of House Bill No. 3348, introduced by Rep. Rafael P. Nantes.]
Tabuk, Kalinga – It not only serves as the main hub of commerce and trade, but also the cultural
center of the rich customs and traditions of the different municipalities in the province. For the
past several years, the income of Tabuk has been steadily increasing, which is an indication that
its economy is likewise progressively growing. [Explanatory Note of House Bill No. 3068,
introduced by Rep. Laurence P. Wacnang.]
Available information on Baybay, Leyte; Mati, Davao Oriental; and Naga, Cebu shows their
economic viability, thus:
Covering an area of 46,050 hectares, Baybay [Leyte] is composed of 92 barangays, 23 of which

are in the poblacion. The remaining 69 are rural barangays. Baybay City is classified as a first
class city. It is situated on the western coast of the province of Leyte. It has a Type 4 climate,
which is generally wet. Its topography is generally mountainous in the eastern portion as it slopes
down west towards the shore line. Generally an agricultural city, the common means of
livelihood are farming and fishing. Some are engaged in hunting and in forestall activities. The
most common crops grown are rice, corn, root crops, fruits, and vegetables. Industries operating
include the Specialty Products Manufacturing, Inc. and the Visayan Oil Mill. Various cottage
industries can also be found in the city such as bamboo and rattan craft, ceramics, dress-making,
fiber craft, food preservation, mat weaving, metal craft, fine Philippine furniture manufacturing
and other related activities. Baybay has great potential as a tourist destination, especially for
tennis players. It is not only rich in biodiversity and history, but it also houses the campus of the
Visayas State University (formerly the Leyte State University/Visayas State College of
Agriculture/Visayas Agricultural College/Baybay National Agricultural School/Baybay
Agricultural High School and the Jungle Valley Park.) Likewise, it has river systems fit for river
cruising, numerous caves for spelunking, forests, beaches, and marine treasures. This richness,
coupled with the friendly Baybayanos, will be an element of a successful tourism program.
Considering the role of tourism in development, Baybay City intends to harness its tourism
potential. (<http://en.wikipedia.org/wiki/Baybay City> visited September 19, 2008)
Mati [Davao Oriental] is located on the eastern part of the island of Mindanao. It is one hundred
sixty-five (165) kilometers away from Davao City, a one and a half-hour drive from Tagum City.
Visitors can travel from Davao City through the Madaum diversion road, which is shorter than
taking the Davao-Tagum highway. Travels by air and sea are possible, with the existence of an
airport and seaport. Mati boasts of being the coconut capital of Mindanao if not the whole
country. A large portion of its fertile land is planted to coconuts, and a significant number of its
population is largely dependent on it. Other agricultural crops such as mango, banana, corn,
coffee and cacao are also being cultivated, as well as the famous Menzi pomelo and Valencia
oranges. Mati has a long stretch of shoreline and one can find beaches of pure, powder-like white
sand. A number of resorts have been developed and are now open to serve both local and
international tourists. Some of these resorts are situated along the coast of Pujada Bay and the
Pacific Ocean. Along the western coast of the bay lies Mt. Hamiguitan, the home of the pygmy
forest, where bonsai plants and trees grow, some of which are believed to be a hundred years old
or more. On its peak is a lake, called "Tinagong Dagat," or hidden sea, so covered by dense
vegetation a climber has to hike trails for hours to reach it. The mountain is also host to rare
species of flora and fauna, thus becoming a wildlife sanctuary for these life forms.
(<http://mati.wetpain.com/?t=anon> accessed on September 19, 2008.)
Mati is abundant with nickel, chromite, and copper. Louie Rabat, Chamber President of the
Davao Oriental Eastern Chamber of Commerce and Industry, emphasized the big potential of the
mining industry in the province of Davao Oriental. As such, he strongly recommends Mati as the
mining hub in the Region.
(<http://www.pia.gov.ph/default.asp?m=12&sec=reader&rp=1&fi=p080115.htm&no.=9&date,
accessed on September 19, 2008)
Naga [Cebu]: Historical Background—In the early times, the place now known as Naga was full
of huge trees locally called as "Narra." The first settlers referred to this place as Narra, derived
from the huge trees, which later simply became Naga. Considered as one of the oldest
settlements in the Province of Cebu, Naga became a municipality on June 12, 1829. The
municipality has gone through a series of classifications as its economic development has
undergone changes and growth. The tranquil farming and fishing villages of the natives were
agitated as the Spaniards came and discovered coal in the uplands. Coal was the first export of
the municipality, as the Spaniards mined and sent it to Spain. The mining industry triggered the
industrial development of Naga. As the years progressed, manufacturing and other industries
followed, making Naga one of the industrialized municipalities in the Province of Cebu.
Class of Municipality 1st class
Province Cebu
Distance from Cebu City 22 kms.
Number of Barangays 28
No. of Registered Voters 44,643 as of May 14, 2007

Total No. of Precincts 237 (as of May 14, 2007)
Ann. Income (as of Dec. 31, 2006) Php112,219,718.35 Agricultural, Industrial, Agro-
Industrial, Mining Product
(<http://www.nagacebu.com/index.php?option=com.content&view=article id=53:naga-
facts-and-figures&catid=51:naga-facts-and-figures&Itemid=75> visited September 19,
2008)
The enactment of the Cityhood Laws is an exercise by Congress of its legislative power.
Legislative power is the authority, under the Constitution, to make laws, and to alter and repeal
them.10 The Constitution, as the expression of the will of the people in their original, sovereign,
and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of
legislative power to Congress is broad, general, and comprehensive. The legislative body
possesses plenary powers for all purposes of civil government. Any power, deemed to be
legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution
has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or
impliedly, legislative power embraces all subjects, and extends to matters of general concern or
common interest.11
Without doubt, the LGC is a creation of Congress through its law-making powers. Congress has
the power to alter or modify it as it did when it enacted R.A. No. 9009. Such power of
amendment of laws was again exercised when Congress enacted the Cityhood Laws. When
Congress enacted the LGC in 1991, it provided for quantifiable indicators of economic viability
for the creation of local government units—income, population, and land area. Congress deemed
it fit to modify the income requirement with respect to the conversion of municipalities into
component cities when
it enacted R.A. No. 9009, imposing an amount of P100 million, computed only from locally-
generated sources. However, Congress deemed it wiser to exempt respondent municipalities
from such a belatedly imposed modified income requirement in order to uphold its higher calling
of putting flesh and blood to the very intent and thrust of the LGC, which is countryside
development and autonomy, especially accounting for these municipalities as engines for
economic growth in their respective provinces.
Undeniably, R.A. No. 9009 amended the LGC. But it is also true that, in effect, the Cityhood
Laws amended R.A. No. 9009 through the exemption clauses found therein. Since the Cityhood
Laws explicitly exempted the concerned municipalities from the amendatory R.A. No. 9009,
such Cityhood Laws are, therefore, also amendments to the LGC itself. For this reason, we
reverse the November 18, 2008 Decision and the August 24, 2010 Resolution on their strained
and stringent view that the Cityhood Laws, particularly their exemption clauses, are not found in
the LGC.
2.
The Cityhood Laws do not violate Section 6, Article X and the equal protection clause of the
Constitution.
Both the November 18, 2008 Decision and the August 24, 2010 Resolution impress that the
Cityhood Laws violate the equal protection clause enshrined in the Constitution. Further, it was
also ruled that Section 6, Article X was violated because the Cityhood Laws infringed on the
"just share" that petitioner and petitioners-in-intervention shall receive from the national taxes
(IRA) to be automatically released to them.
Upon more profound reflection and deliberation, we declare that there was valid classification,
and the Cityhood Laws do not violate the equal protection clause.
As this Court has ruled, the equal protection clause of the 1987 Constitution permits a valid
classification, provided that it: (1) rests on substantial distinctions; (2) is germane to the purpose
of the law; (3) is not limited to existing conditions only; and (4) applies equally to all members
of the same class.12
The petitioners argue that there is no substantial distinction between municipalities with pending
cityhood bills in the 11th Congress and municipalities that did not have pending bills, such that
the mere pendency of a cityhood bill in the 11th Congress is not a material difference to
distinguish one municipality from another for the purpose of the income requirement. This
contention misses the point.
It should be recalled from the above quoted portions of the interpellation by Senate President
Drilon of Senator Pimentel that the purpose of the enactment of R.A. No 9009 was merely to
stop the "mad rush of municipalities wanting to be converted into cities" and the apprehension
that before long the country will be a country of cities and without municipalities. It should be
pointed out that the imposition of the P100 million average annual income requirement for the
creation of component cities was arbitrarily made. To be sure, there was no evidence or
empirical data, such as inflation rates, to support the choice of this amount. The imposition of a
very high income requirement of P100 million, increased from P20 million, was simply to make
it extremely difficult for municipalities to become component cities. And to highlight such
arbitrariness and the absurdity of the situation created thereby, R.A. No. 9009 has, in effect,
placed component cities at a higher standing than highly urbanized cities under Section 452 of
the LGC, to wit—
Section 452. Highly Urbanized Cities. – (a) Cities with a minimum population of two hundred
thousand (200,000) inhabitants, as certified by the National Statistics Office, and with the latest
annual income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices, as
certified by the city treasurer, shall be classified as highly urbanized cities.
(b) Cities which do not meet above requirements shall be considered component cities of the
province in which they are geographically located. (Emphasis supplied)
The P100 million income requirement imposed by R.A. No. 9009, being an arbitrary amount,
cannot be conclusively said to be the only amount "sufficient, based on acceptable standards, to
provide for all essential government facilities and services and special functions
commensurate with the size of its population," per Section 713 of the LGC. It was imposed
merely because it is difficult to comply with. While it could be argued that P100 million, being
more than P20 million, could, of course, provide the essential government facilities, services, and
special functions vis-à-vis the population of a municipality wanting to become a component city,
it cannot be said that the minimum amount of P20 million would be insufficient. This is evident
from the existing cities whose income, up to now, do not comply with the P100 million income
requirement, some of which have lower than the P20 million average annual income. Consider
the list14 below—
CITY AVERAGE ANNUAL INCOME

1. Marawi City 5,291,522.10
2. Palayan City 6,714,651.77
3. Sipalay City 9,713,120.00
4. Canlaon City 13,552,493.79
5. Himamaylan City 15,808,530.00
6. Isabela City 16,811,246.79
7. Munoz City 19,693,358.61
8. Dapitan City 20,529,181.08
9. Tangub City 20,943,810.04
10. Bayawan City 22,943,810.04
11. Island Garden City of Samal 23,034,731.83
12. Tanjay City 23,723,612.44
13. Tabaco City 24,152,853.71
14. Oroquieta City 24,279,966.51
15. Ligao City 28,326,745.86
16. Sorsogon City 30,403,324.59
17. Maasin City 30,572,113.65
18. Escalante City 32,113,970.00
19. Iriga City 32,757,871.44
20. Gapan City 34,254,986.47
21. Candon City 36,327,705.86
22. Gingoog City 37,327,705.86
23. Masbate City 39,454,508.28
24. Passi City 40,314,620.00
25. Calbayog City 40,943,128.73
26. Calapan City 41,870,239.21
27. Cadiz City 43,827,060.00
28. Alaminos City 44,352,501.00
29. Bais City 44, 646,826.48
30. San Carlos City 46,306,129.13
31. Silay City 47,351,730.00
32. Bislig City 47,360,716.24
33. Tacurong City 49,026,281.56
34. Talisay City (Negros Occidental) 52,609,790.00
35. Kabankalan City 53,560,580.00
36. Malaybalay City 54,423,408.55
37. La Carlota City 54,760,290.00
38. Vigan City 56,831,797.19
39. Balanga City 61,556,700.49
40. Sagay City 64,266,350.00
41. Cavite City 64,566,079.05
42. Koronadal City 66,231,717.19
43. Cotabato City 66,302,114.52
44. Toledo City 70,157,331.12
45. San Jose City 70,309,233.43
46. Danao City 72,621,955.30
47. Bago City 74,305,000.00
48. Valencia City 74,557,298.92
49. Victorias City 75,757,298.92
50. Cauayan City 82,949,135.46
51. Santiago City 83,816,025.89
52. Roxas City 85,397,830.00
53. Dipolog City 85,503,262.85
54. Trece Martires City 87,413,786.64
55. Talisay City (Cebu) 87,964,972.97
56. Ozamis city 89,054,056.12
57. Surigao City 89,960,971.33
58. Panabo City 91,425,301.39
59. Digos City 92,647,699.13
The undeniable fact that these cities remain viable as component cities of their respective
provinces emphasizes the arbitrariness of the amount of P100 million as the new income
requirement for the conversion of municipalities into component cities. This arbitrariness can
also be clearly gleaned from the respective distinctive traits and level of economic development
of the individual respondent municipalities as above submitted.
Verily, the determination of the existence of substantial distinction with respect to respondent
municipalities does not simply lie on the mere pendency of their cityhood bills during the 11th
Congress. This Court sees the bigger picture. The existence of substantial distinction with respect
to respondent municipalities covered by the Cityhood Laws is measured by the purpose of the
law, not by R.A. No. 9009, but by the very purpose of the LGC, as provided in its Section 2 (a),
thus—
SECTION 2. Declaration of Policy.—(a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national goals. Toward this end, the State
shall provide for a more responsive and accountable local government structure instituted
through a system of decentralization whereby local government units shall be given more
powers, authority, responsibilities and resources. The process of decentralization shall proceed
from the National Government to the local government units.
Indeed, substantial distinction lies in the capacity and viability of respondent municipalities to
become component cities of their respective provinces. Congress, by enacting the Cityhood
Laws, recognized this capacity and viability of respondent municipalities to become the State’s
partners in accelerating economic growth and development in the provincial regions, which is the
very thrust of the LGC, manifested by the pendency of their cityhood bills during the 11th
Congress and their relentless pursuit for cityhood up to the present. Truly, the urgent need to
become a component city arose way back in the 11th Congress, and such condition continues to
exist.
Petitioners in these cases complain about the purported reduction of their "just share" in the IRA.
To be sure, petitioners are entitled to a "just share," not a specific amount. But the feared
reduction proved to be false when, after the implementation of the Cityhood Laws, their
respective shares increased, not decreased. Consider the table15 below—
1avvphi1
CY 2006 IRA
CY 2008 IRA
(Before
(Actual Release After
CITY Implementation of
Implementation of Sixteen
Sixteen [16] Cityhood
[16] Cityhood Laws)
Laws)
Bais 219,338,056.00 242,193,156.00
Batangas 334,371,984.00 388,871,770.00
Bayawan 353,150,158.00 388,840,062.00
Cadiz 329,491,285.00 361,019,211.00
Calapan 227,772,199.00 252,587,779.00
Calbayog 438,603,378.00 485,653,769.00
Cauayan 250,477,157.00 277,120,828.00
Gen. Santos 518,388,557.00 631,864,977.00
Gingoog 314,425,637.00 347,207,725.00
Himamaylan 248,154,381.00 277,532,458.00
Iloilo 358,394,268.00 412,506,278.00
Iriga 183,132,036.00 203,072,932.00
Legaspi 235,314,016.00 266,537,785.00
Ligao 215,608,112.00 239,696,441.00
Oroquieta 191,803,213.00 211,449,720.00
Pagadian 292,788,255.00 327,401,672.00
San Carlos 239,524,249.00 260,515,711.00
San
182,320,356.00 204,140,940.00
Fernando
Santiago 508,326,072.00 563,679,572.00
Silay 216,372,314.00 241,363,845.00
Surigao 233,968,119.00 260,708,071.00
Tacurong 179,795,271.00 197,880,665.00
Tagaytay 130,159,136.00 152,445,295.00
Tarlac 348,186,756.00 405,611,581.00
Tangub 162,248,610.00 180,640,621.00
Urdaneta 187,721,031.00 207,129,386.00
Victorias 176,367,959.00 194,162,687.00
Zamboanga 918,013,016.00 1,009,972,704.00
What these petitioner cities were stating as a reduction of their respective IRA shares was based
on a computation of what they would receive if respondent municipalities were not to become
component cities at all. Of course, that would mean a bigger amount to which they have staked
their claim. After considering these, it all boils down to money and how much more they would
receive if respondent municipalities remain as municipalities and not share in the 23% fixed IRA
from the national government for cities.
Moreover, the debates in the Senate on R.A. No. 9009, should prove enlightening:
SENATOR SOTTO. Mr. President, we just want to be enlightened again on the previous
qualification and the present one being proposed. Before there were three…
SENATOR PIMENTEL. There are three requisites for a municipality to become a city. Let us
start with the finance.
SENATOR SOTTO. Will the distinguished sponsor please refresh us? I used to be the chairman
of the Committee on Local Government, but the new job that was given to me by the Senate has
erased completely my memory as far as the Local Government Code is concerned.
SENATOR PIMENTEL. Yes, Mr. President, with pleasure. There are three requirements. One is
financial.
SENATOR SOTTO. All right. It used to be P20 million.
SENATOR PIMENTEL. It is P20 million. Now we are raising it to P100 million of locally
generated funds.
SENATOR SOTTO. In other words, the P20 million before includes the IRA.
SENATOR PIMENTEL. No, Mr. President.
SENATOR SOTTO. It should not have been included?
SENATOR PIMENTEL. The internal revenue share should never have been included. That was
not the intention when we first crafted the Local Government Code. The financial capacity was
supposed to be demonstrated by the municipality wishing to become a city by its own effort,
meaning to say, it should not rely on the internal revenue share that comes from the government.
Unfortunately, I think what happened in past conversions of municipalities into cities was, the
Department of Budget and Management, along with the Department of Finance, had included the
internal revenue share as a part of the municipality, demonstration that they are now financially
capable and can measure up to the requirement of the Local Government Code of having a
revenue of at least P20 million.
SENATOR SOTTO. I am glad that the sponsor, Mr. President, has spread that into the Record
because otherwise, if he did not mention the Department of Finance and the Department of
Budget and Management, then I would have been blamed for the misinterpretation. But anyway,
the gentleman is correct. That was the interpretation given to us during the hearings.
So now, from P20 million, we make it P100 million from locally generated income as far as
population is concerned.
SENATOR PIMENTEL. As far as population is concerned, there will be no change, Mr.

President. Still 150,000.
SENATOR SOTTO. Still 150,000?
SENATOR PIMENTEL. Yes.
SENATOR SOTTO. And then the land area?
SENATOR PIMENTEL. As to the land area, there is no change; it is still 100 square kilometers.
SENATOR SOTTO. But before it was "either/or"?
SENATOR PIMENTEL. That is correct. As long as it has one of the three requirements,
basically, as long as it meets the financial requirement, then it may meet the territorial
requirement or the population requirement.
SENATOR SOTTO. So, it remains "or"?
SENATOR PIMENTEL. We are now changing it into AND.
SENATOR SOTTO. AND?
SENATOR PIMENTEL. Yes.
SENATOR SOTTO. I see.
SENATOR PIMENTEL. That is the proposal, Mr. President. In other words…
SENATOR SOTTO. Does the gentleman not think there will no longer be any municipality that
will qualify, Mr. President?
SENATOR PIMENTEL. There may still be municipalities which can qualify, but it will take a
little time. They will have to produce more babies. I do not know—expand their territories,
whatever, by reclamation or otherwise. But the whole proposal is geared towards making it
difficult for municipalities to convert into cities.
On the other hand, I would like to advert to the fact that in the amendments that we are proposing
for the entire Local Government Code, we are also raising the internal revenue share of the
municipalities.
SENATOR SOTTO. I see.
SENATOR PIMENTEL. So that, more or less, hindi naman sila dehado in this particular
instance.
SENATOR SOTTO. Well, then, because of that information, Mr. President, I throw my full
support behind the measure.
Thank you, Mr. President.
SENATOR PIMENTEL. Thank you very much, Mr. President. (Emphasis supplied)16
From the foregoing, the justness in the act of Congress in enacting the Cityhood Laws becomes
obvious, especially considering that 33 municipalities were converted into component cities
almost immediately prior to the enactment of R.A. No. 9009. In the enactment of the Cityhood
Laws, Congress merely took the 16 municipalities covered thereby from the disadvantaged
position brought about by the abrupt increase in the income requirement of R.A. No. 9009,
acknowledging the "privilege" that they have already given to those newly-converted component
cities, which prior to the enactment of R.A. No. 9009, were undeniably in the same footing or
"class" as the respondent municipalities. Congress merely recognized the capacity and readiness
of respondent municipalities to become component cities of their respective provinces.
Petitioners complain of the projects that they would not be able to pursue and the expenditures
that they would not be able to meet, but totally ignored the respondent municipalities’
obligations arising from the contracts they have already entered into, the employees that they
have already hired, and the projects that they have already initiated and completed as component
cities. Petitioners have completely overlooked the need of respondent municipalities to become
effective vehicles intending to accelerate economic growth in the countryside. It is like the elder
siblings wanting to kill the newly-borns so that their inheritance would not be diminished.
Apropos is the following parable:
There was a landowner who went out at dawn to hire workmen for his vineyard. After reaching
an agreement with them for the usual daily wage, he sent them out to his vineyard. He came out
about midmorning and saw other men standing around the marketplace without work, so he said
to them, "You too go along to my vineyard and I will pay you whatever is fair." They went. He
came out again around noon and mid-afternoon and did the same. Finally, going out in late
afternoon he found still others standing around. To these he said, "Why have you been standing
here idle all day?" "No one has hired us," they told him. He said, "You go to the vineyard too."
When evening came, the owner of the vineyard said to his foreman, "Call the workmen and give
them their pay, but begin with the last group and end with the first." When those hired late in the
afternoon came up they received a full day’s pay, and when the first group appeared they thought
they would get more, yet they received the same daily wage. Thereupon they complained to the
owner, "This last group did only an hour’s work, but you have paid them on the same basis as us
who have worked a full day in the scorching heat." "My friend," he said to one in reply, "I do
you no injustice. You agreed on the usual wage, did you not? Take your pay and go home. I
intend to give this man who was hired last the same pay as you. I am free to do as I please with
my money, am I not? Or are you envious because I am generous?"17
Congress, who holds the power of the purse, in enacting the Cityhood Laws, only sought the
well-being of respondent municipalities, having seen their respective capacities to become
component cities of their provinces, temporarily stunted by the enactment of R.A. No. 9009. By
allowing respondent municipalities to convert into component cities, Congress desired only to
uphold the very purpose of the LGC, i.e., to make the local government units "enjoy genuine and
meaningful local autonomy to enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the attainment of national goals," which
is the very mandate of the Constitution.
Finally, we should not be restricted by technical rules of procedure at the expense of the
transcendental interest of justice and equity. While it is true that litigation must end, even at the
expense of errors in judgment, it is nobler rather for this Court of last resort, as vanguard of truth,
to toil in order to dispel apprehensions and doubt, as the following pronouncement of this Court
instructs:
The right and power of judicial tribunals to declare whether enactments of the legislature exceed
the constitutional limitations and are invalid has always been considered a grave responsibility,
as well as a solemn duty. The courts invariably give the most careful consideration to questions
involving the interpretation and application of the Constitution, and approach constitutional
questions with great deliberation, exercising their power in this respect with the greatest possible
caution and even reluctance; and they should never declare a statute void, unless its invalidity is,
in their judgment, beyond reasonable doubt. To justify a court in pronouncing a legislative act
unconstitutional, or a provision of a state constitution to be in contravention of the Constitution x
x x, the case must be so clear to be free from doubt, and the conflict of the statute with the
constitution must be irreconcilable, because it is but a decent respect to the wisdom, the integrity,
and the patriotism of the legislative body by which any law is passed to presume in favor of its
validity until the contrary is shown beyond reasonable doubt. Therefore, in no doubtful case will
the judiciary pronounce a legislative act to be contrary to the constitution. To doubt the
constitutionality of a law is to resolve the doubt in favor of its validity.18
WHEREFORE, the Motion for Reconsideration of the "Resolution" dated August 24, 2010,
dated and filed on September 14, 2010 by respondents Municipality of Baybay, et al. is
GRANTED. The Resolution dated August 24, 2010 is REVERSED and SET ASIDE. The
Cityhood Laws—Republic Acts Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405,
9407, 9408, 9409, 9434, 9435, 9436, and 9491—are declared CONSTITUTIONAL.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

ANTONIO EDUARDO B.
NACHURA
Associate Justice
Associate Justice
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice




Associate Justice
CERTIFICATION
above resolution had been reached in consultation before the case was assigned to the writer of
RENATO C. CORONA
Chief Justice
Footnotes
1
Republic Acts 9389 [Baybay City, Leyte], 9390 [Bogo City, Cebu], 9391 [Catbalogan
City, Samar], 9392 [Tandag City, Surigao del Sur], 9393 [Lamitan City, Basilan], 9394
[Borongan City, Samar], 9398 [Tayabas City, Quezon], 9404 [Tabuk City, Kalinga],
9405 [Bayugan City, Agusan del Sur], 9407 [Batac City, Ilocos Norte], 9408 [Mati City,
Davao Oriental], 9409 [Guihulngan City, Negros Oriental], 9434 [Cabadbaran City,
Agusan del Norte], 9435 [El Salvador City, Misamis Oriental], 9436 [Carcar City, Cebu],
and 9491 [Naga City, Cebu].
2
Penned by J. Carpio, with JJ. Quisumbing, Austria-Martinez, Carpio-Morales, Velasco,
Jr., and Brion, concurring; dissenting, J. Reyes, joined by JJ. Corona, Azcuna, Chico-
Nazario, and Leonardo-De Castro; C.J. Puno, and JJ. Nachura and Tinga took no part; J.
Ynares-Santiago was on leave.
3
Justice Velasco, Jr. wrote a Dissenting Opinion, joined by Justices Ynares-Santiago,
Corona, Chico-Nazario, and Leonardo-De Castro. Chief Justice Puno and Justice
Nachura took no part.
4
Justice Velasco, Jr. wrote a Dissenting Opinion, joined by Justices Ynares-Santiago,
Corona, Chico-Nazario, Leonardo-De Castro, and Bersamin. Chief Justice Puno and
Justice Nachura took no part. Justice Quisumbing was on leave.
5
Citations omitted.
6
Penned by J. Velasco, Jr., with JJ. Corona, Leonardo-De Castro, Bersamin, Abad, and
Villarama concurring; dissenting, J. Carpio, joined by JJ. Carpio-Morales, Brion, and
Peralta; C.J. Puno and JJ. Nachura and Del Castillo took no part.
7
Penned by J. Carpio, with JJ. Carpio-Morales, Brion, Peralta, Villarama, Mendoza, and
Sereno, concurring; dissenting,, J. Velasco, Jr., joined by C.J. Corona, and JJ. Leonardo-
De Castro, Bersamin, Abad, and Perez; JJ. Nachura and Del Castillo took no part.
8
II Record, Senate, 13th Congress, p. 164 (October 5, 2000); rollo (G.R. No. 176951),
Vol. 5, p. 3765.
9
Id. at 167-168; id. at 3768-3769.
10
Review Center Association of the Philippines v. Ermita, G.R. No. 180046, April 2,
2009, 583 SCRA 428, 450, citing Kilusang Mayo Uno v. Director-General, National
Economic Development Authority, G.R. No. 167798, April 19, 2006, 487 SCRA 623.
11
Id., citing Ople v. Torres, 354 Phil. 948 (1998).
12
De Guzman, Jr. v. Commission on Elections, 391 Phil. 70, 79 (2000); Tiu v. Court of
Tax Appeals, 361 Phil. 229, 242 (1999).
13
SECTION 7. Creation and Conversion. — As a general rule, the creation of a local
government unit or its conversion from one level to another level shall be based on
verifiable indicators of viability and projected capacity to provide services, to wit:
(a) Income. — It must be sufficient, based on acceptable standards, to provide for

all essential government facilities and services and special functions
commensurate with the size of its population, as expected of the local government
unit concerned;
(b) Population .— It shall be determined as the total number of inhabitants within

the territorial jurisdiction of the local government unit concerned; and
(c) Land Area .— It must be contiguous, unless it comprises two (2) or more
islands or is separated by a local government unit independent of the others;
properly identified by metes and bound with technical descriptions; and sufficient
to provide for such basic services and facilities to meet the requirements of its
populace.
Compliance with the foregoing indicators shall be attested to by the Department

of Finance (DOF), the National Statistics Office (NSO), and the Lands
Management Bureau (LMB) of the Department of Environment and Natural
Resources (DENR). (Emphasis supplied.)
14
The figures reflect the actual income of the cities for 2006. If R.A. No. 9009 is to be
applied such that the figures are expressed in 2000 constant prices, the income of the
cities will even be lower. (Certification from the Bureau of Local Government Finance
dated December 5, 2008; rollo [G.R. No. 176951], Vol. 5, pp. 3731-3734.)
15
Based on the letter dated December 9, 2008 of the Department of Budget and
Management; rollo (G.R. No. 176951), Vol. 5, pp. 3978-3986.
16
Committee Amendments re S. No. 2157, Records of the Senate, Vol. II, No. 24,
October 5, 2000, pp. 165-166; id. at 3766-3767.
17
Mat. 20: 1-15.
18
Churchill v. Rafferty, 32 Phil. 580, 584 (1915).
DISSENTING OPINION
CARPIO, J.:
I dissent.
In their motion for reconsideration, respondents argue that: (1) the petitions on their face do not
call for the exercise of judicial power considering that the share of local government units in the
Internal Revenue Allotments does not constitute rights which are legally demandable and
enforceable; (2) the 16 Cityhood Laws are not unconstitutional; and (3) there was no violation of
the equal protection clause.
The crux of the controversy is whether the 16 Cityhood Laws are constitutional.1
As I have consistently opined, which opinion is concurred in by the majority members of this
Court in the reinstated Decision of 18 November 2008 and in the assailed Resolution of 24
August 2010, the 16 Cityhood Laws are unconstitutional.
First, the 16 Cityhood Laws violate Section 10, Article X of the 1987 Constitution. This
provision reads:
No province, city, municipality, or barangay shall be created, divided, merged, abolished or its
boundary substantially altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected. (Emphasis supplied)
The Constitution is clear. The creation of local government units must follow the criteria
established in the Local Government Code and not in any other law. There is only one Local
Government Code.2 The Constitution requires Congress to stipulate in the Local Government
Code all the criteria necessary for the creation of a city, including the conversion of a
municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood
Laws.
RA 9009 amended Section 450 of the Local Government Code to increase the income
requirement from P20 million to P100 million for the creation of a city. This took effect on 30
June 2001. Hence, from that moment the Local Government Code required that any
municipality desiring to become a city must satisfy the P100 million income requirement.
Section 450 of the Local Government Code, as amended by RA 9009, does not contain any
exemption from this income requirement.
In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even
though their cityhood bills were pending in Congress when Congress passed RA 9009. The
Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent
municipalities from the increased income requirement in Section 450 of the Local Government
Code, as amended by RA 9009. Such exemption clearly violates Section 10, Article X of the
Constitution and is thus patently unconstitutional. To be valid, such exemption must be
written in the Local Government Code and not in any other law, including the Cityhood
Laws.
Second, the 16 Cityhood Laws violate the equal protection clause of the Constitution.
The equal protection clause of the 1987 Constitution permits a valid classification under the
following conditions:
1. The classification must rest on substantial distinctions;
2. The classification must be germane to the purpose of the law;
3. The classification must not be limited to existing conditions only; and
4. The classification must apply equally to all members of the same class.3
As I have previously stressed, there is no substantial distinction between municipalities with

pending cityhood bills in the 11th Congress and municipalities that did not have pending bills.
The mere pendency of a cityhood bill in the 11th Congress is not a material difference to
distinguish one municipality from another for the purpose of the income requirement. The
pendency of a cityhood bill in the 11th Congress does not affect or determine the level of
income of a municipality. Municipalities with pending cityhood bills in the 11th Congress
might even have lower annual income than municipalities that did not have pending cityhood
bills. In short, the classification criterion − mere pendency of a cityhood bill in the 11th
Congress − is not rationally related to the purpose of the law which is to prevent fiscally
non-viable municipalities from converting into cities.
Moreover, the fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a
specific condition existing at the time of passage of RA 9009. That specific condition will
never happen again. This violates the requirement that a valid classification must not be
limited to existing conditions only.
Further, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique
advantage based on an arbitrary date − the filing of their cityhood bills before the end of the 11th
Congress – as against all other municipalities that want to convert into cities after the effectivity
of RA 9009.
In addition, limiting the exemption only to the 16 municipalities violates the requirement that the
classification must apply to all similarly situated. Municipalities with the same income as the 16
respondent municipalities cannot convert into cities, while the 16 respondent municipalities can.
Clearly, as worded, the exemption provision found in the Cityhood Laws, even if it were written
in Section 450 of the Local Government Code, would still be unconstitutional for violation of the
equal protection clause.
I repeat, Section 10, Article X of the Constitution expressly provides that "no x x x city shall be
created x x x except in accordance with the criteria established in the local government
code." This provision can only be interpreted in one way, that is, all the criteria for the creation
of cities must be embodied exclusively in the Local Government Code. In this case, the Cityhood
Laws, which are unmistakably laws other than the Local Government Code, provided an
exemption from the increased income requirement for the creation of cities under Section 450 of
the Local Government Code, as amended by RA 9009. Clearly, the Cityhood Laws contravene
the letter and intent of Section 10, Article X of the Constitution.
Accordingly, I vote to DENY the motion for reconsideration of the Resolution dated 24 August
2010.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1
In paragraph 93 of the motion for reconsideration, respondents state:
93. Thus, in this motion for reconsideration of the "Resolution" of August 24, 2010, what
is in issue is the correctness of the ruling of the Majority on [the] merits of the case,
particularly the constitutionality of the Cityhood Laws.
2
Republic Act No. 7160, as amended.
3
De Guzman, Jr. v. COMELEC, 391 Phil. 70, 79 (2000); Tiu v. Court of Tax Appeals, 361
Phil. 229, 242 (1999).
CONCURRING OPINION
ABAD, J.:
The Court has received flak on this case for supposed "flip-flopping." But its shifting views are
understandable because of the nearly even soundness of the opposing advocacies of the two
groups of cities over the validity of the sixteen cityhood laws.1 It also does not help that the
membership of the Court has been altered by retirements and replacements at various stages from
when it first decided to annul the laws, to when it reconsidered and upheld their validity, and to
when it reverted to the original position and declared the laws involved unconstitutional. This to
me is a healthy sign of democracy at work, the members being blind to the need to conform.
In its Resolution of August 24, 2010, the Court reversed its December 21, 2009 Decision and
denied the quest for cityhood of sixteen municipalities on the ground that the laws creating them
violated Section 10, Article X of the 1987 Constitution2 and the equal protection clause.3 By that
resolution, the majority also held that the Court erred in setting aside its November 18, 2008
decision since this latter had attained finality after the Court’s denial of the second motion for
reconsideration of the respondent cities, albeit the 6-6 deadlock vote and the corresponding entry
of judgment.
The Issues Presented
The motion for reconsideration of respondent cities presents the following issues:
1. Whether or not the sixteen cityhood laws violate Section 10, Article X of the 1987
Constitution;
2. Whether or not such laws violate the equal protection clause; and
3. Whether or not the Court could still modify its decision dated November 18, 2008.
Discussions
One. In ruling that the sixteen cityhood laws violated Section 10 of Article X, the majority in the
Court held that the creation of local government units must conform to the criterion prescribed in
Section 450 of the Local Government Code.4 Since those laws, which were passed after the
enactment of Republic Act (R.A.) 9009,5 covered municipalities that did not comply with the
amended income requirement set by the Local Government Code, their conversion into cities
were constitutionally infirm. The majority held that R.A. 9009 did not provide exemptions from
its application. Although the provisions in the sixteen cityhood laws established exemptions from
such requirement for the subject municipalities, the same can not be considered without violating
Section 10, Article X, taking into account the legislature’s primary intent in passing R.A. 9009.6
I take exception on how the majority of the Court selectively chose to focus on the sponsorship
speech of Senator Aquilino Pimentel to come up with a "primary intent" theory for R.A. 9009.
Surely, the intent of R.A. 9009 can not be based solely on that speech. The Court should not
ignore the legislative history of R.A. 9009, including the pertinent exchanges during the
interpellation of Senator Pimentel and Senate President Franklin Drilon, thus:
THE PRESIDENT. The Chair would like to ask for some clarificatory point. x x x
THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the
conversion of a number of municipalities into cities and which qualify under the present
standard.
We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the
Chamber apply the standard as proposed in this bill to those bills which are pending for
consideration?
SENATOR PIMENTEL. Mr. President, it might not be fair to make this bill x x x [if] approved,
retroact to the bills that are pending in the Senate for conversion from municipalities to cities.
THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it
not become a policy of the Chamber, assuming that this bill becomes a law x x x that it will
apply to those bills which are already approved by the House under the old version of the [LGC]
and are now pending in the Senate? The Chair does not know if we can craft a language which
will limit the application to those which are not yet in the Senate. Or is that a policy that the
Chamber will adopt?
SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that
provision because what we are saying here will form part of the interpretation of this bill.
Besides, if there is no retroactivity clause, I do not think that the bill would have any retroactive
effect.
THE PRESIDENT. So the understanding is that those bills which are already pending in the
Chamber will not be affected.
SENATOR PIMENTEL. These will not be affected Mr. President.7 (Emphasis supplied)
Two things are clear from the above exchanges. First, the legislature intended to exempt from the
amended income requirement of R.A. 9009 the municipalities that had pending cityhood bills
during the 11th Congress. As a matter of fact, such legislative intent was carried over to the 12th
and the 13th Congress when the House of Representatives adopted Joint Resolutions8 that sought
the exemption of twenty-four municipalities, including the sixteen, from the application of R.A.
9009. The continuing intent of Congress culminated in the inclusion of the exemption clause in
the cityhood bills and their subsequent passage.
Second, it is also clear from the above exchanges between Senators Pimentel and Drilon that
Congress did not anymore insert an exemption clause from the income requirement of R.A. 9009
since such exchanges, when read by the Court, would already reveal the lawmakers’ intent
regarding such matter.
Besides, the exemption clause found in each of the cityhood laws serves as an affirmation of
Congress’ intent to exempt them from the increased income requirement of R.A. 9009. These
new cities have not altogether been exempted from the operation of the Local Government Code
covering income requirement. They have been expressly made subject to the lower income
requirement of the old code. There remains, therefore, substantial compliance with the provision
of Section 10, Article X of the Constitution which provides that no city may be created "except
in accordance with the criteria established in the local government code."
The above interpretation accommodates the "primary" intention of Congress in preventing the
mad rush of municipalities wanting to be converted into cities and the other intention of
Congress to exempt the municipalities which have pending cityhood bills before the enactment
of R.A. 9009.
This is not to say that the views of the majority in the Court are absolutely illogical or wrong.
They are admittedly plausible. But, given the unstable footing of such views as evidenced by its
shifting positions on the issue, the Court should have adopted an attitude of becoming humility,
upholding the constitutionality of the acts of a co-equal branch of government regarding a matter
that properly fell within its powers.
Two. The equal protection clause of the Constitution seeks to protect persons from being
deprived of life, liberty, or property by the uneven application of statutes. In invoking this
protection, it is incumbent on petitioner League of Cities to show, not only that the exemption
granted to the sixteen cities amounted to arbitrary classification but, that the League or their
members have been deprived of life, liberty or property, by reason of the exemption. The League
of Cities has failed to discharge this burden.
The Court explained in Ichong v. Hernandez9 the limits of the equal protection clause, thus:
The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination or the oppression of inequality. It is not intended
to prohibit legislation, which is limited either in the object to which it is directed or by territory
within which is to operate. It does not demand absolute equality among residents; it merely
requires that all persons shall be treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified class, if it applies alike
to all persons within such class, and reasonable grounds exists (sic) for making a distinction
between those who fall within such class and those who do not. (Emphasis supplied)
Far from baselessly favoring the sixteen municipalities, Congress gave them exemptions from
the application of R.A. 9009 based on its sense of justice and fairness. Senator Alfredo Lim
explained this in his sponsorship speech on House Joint Resolution No. 1, thus:
x x x The imposition of a much higher income requirement for the creation of a city virtually
delivered a lethal blow to the aspirations of the 24 municipalities to attain economic growth and
progress. To them, it was unfair; like any sport – changing the rules in the middle of the game.
xxxx
I, for one, share their view that fairness dictates that they should be given a legal remedy by
which they could be allowed to prove that they have all the necessary qualifications for city
status using the criteria set forth under the Local Government Code prior to its amendment by
R.A. 9009.
xxxx
In essence, the Cityhood bills now under consideration will have the same effect as that of House
Joint Resolution No. 1 because each of the 12 bills seeks exemption from the higher income
requirement of R.A. 9009. The proponents are invoking the exemption on the basis of justice and
fairness. x x x10 (Emphasis supplied)
What makes the injustice quite bitter is the fact that the sixteen cities did not merely have
pending cityhood bills during the 11th Congress. They also met at that time the income criteria
set under Section 450 of the then Local Government Code. The Court owes to these cities the
considerations that justice and fair play demands. It can not be denied that substantial distinction
sets them apart from the other cities.
Further, petitioner League of Cities failed to show that the creation of the sixteen new cities
discriminated against other cities. As the respondent cities point out, the majority of the present
cities in our midst do not meet the P100 million minimum income requirement of the Local
Government Code.11 It boggles the mind how these deficient cities can complain of denial of
equal protection of the law.
Besides, assuming an improper classification in the case of the sixteen cities, petitioner League
of Cities can not invoke the equal protection clause since it has failed to show that it will suffer
deprivation of life, liberty, or property by reason of such classification.
Actually, the existing cities would not cease to exist nor would their liberties suffer by reason of
the enactment of the sixteen cityhood laws. That their Internal Revenue Allotment (IRA) will be
diminished does not amount to deprivation of property since the IRA is not their property until it
has been automatically released.12 Mere expectancy in the receipt of IRA can not be regarded as
the "property" envisioned in the Bill of Rights.
Three. The majority maintain that the Court did not properly set aside its original decision dated
November 18, 2008, which earlier invalidated the Cityhood laws since, procedurally, the Court
had previously declared such decision already final.13 But a question had been raised regarding
the propriety of such declaration of finality, given a pending question respecting the consequence
of a 6-6 vote on the constitutionality of the cityhood laws. At any rate, the Court has under
extraordinary circumstances14 reconsidered its ruling despite an entry of judgment. It will not
allow the technical rules to hinder it from rendering just and equitable relief.15
The issues presented in this case do not only involve rights and obligations of some parties but
the constitutionality of the exercise by Congress of its power to make laws. There is no reason to
uphold the November 18, 2008 decision since the petitioner League of Cities has failed to
overcome the strong presumption in favor of the cityhood laws’ constitutionality.
I vote to GRANT the motion for reconsideration of the respondent cities, REVERSE AND SET
ASIDE the Resolution of the Court dated August 24, 2010, REINSTATE the Decision of the
Court dated December 21, 2009, and DISMISS the Consolidated petitions of the League of
Cities.
ROBERTO A. ABAD
Associate Justice
Footnotes
1
Republic Acts 9389, 9390, 9391, 9392, 9394, 9398, 9393, 9404, 9405, 9407, 9408,
9409, 9434, 9436, 9435 and 9491.
2
Section 10: No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered, except in accordance with the
criteria established in the local government code and subject to approval by a majority of
the votes cast in a plebiscite in the political units directly affected.
3
Section 1, Article III: No person shall be deprived of life, liberty and property without
due process of law nor shall any person be denied the equal protection of the laws.
(Emphasis Supplied)
4
Republic Act 7160, as amended.
5
An Act Amending Section 450 of Republic Act No. 7160, Otherwise Known as The Local
Government Code of 1991, by Increasing the Average Annual Income Requirement for a
Municipality or Cluster of Barangay to be Converted into a Component City.
6
To restrain "the mad rush of municipalities wanting to be converted into cities".
Sponsorship speech of Senator Aquilino Pimintel, October 5, 2000.
7
See Justice Ruben T. Reyes’ Dissent promulgated on November 18, 2008; citing II
Record, Senate, 13th Congress, pp. 167-168.
8
Joint Resolution No. 29 entitled: "Joint Resolution to Exempt Certain Municipalities
Embodied in Bills Filed in Congress before June 30, 2001 from the coverage of Republic
Act No. 9009" and Joint Resolution No. 1, readopting Joint Resolution No. 29.
9
G.R. No. L-7995, 101 Phil. 1155 (1952), citing 2 Cooley, Constitutional Limitations,
824-825.
10
Journal, Senate 13th Congress, 59th Session, 1238 -1240 cited in Justice Ruben T.
Reyes’ Dissent promulgated on November 18, 2008.
11
Motion for Reconsideration of respondent cities, p. 49.
12
Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000.
13
The Entry of Judgment of the Decision dated November 18, 2008 was made on May
21, 2009 as per Resolution of the Court dated June 2, 2009.
14
See Manotok IV v. Heirs of Barque, G.R. Nos. 162335 & 162605, December 18, 2008.
15
Javier v. Commission on Elections, G.R. Nos. L-68379-81, September 22, 1986.

SUPREME COURTBaguio City
EN BANC
G.R. No. 176951 April 12, 2011
LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National

vs.
COMMISSION ON ELECTIONS; Municipality of Baybay, Province of Leyte;
Municipality of Bogo, Province of Cebu; Municipality of Catbalogan, Province of Western
Samar; Municipality of Tandag, Province of Surigao del Sur; Municipality of Borongan,
Province of Eastern Samar; and Municipality of Tayabas, Province of Quezon,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177499

vs.
COMMISSION ON ELECTIONS; Municipality of Lamitan, Province of Basilan;
Municipality of Tabuk, Province of Kalinga; Municipality of Bayugan, Province of Agusan
del Sur; Municipality of Batac, Province of Ilocos Norte; Municipality of Mati, Province of
Davao Oriental; and Municipality of Guihulngan, Province of Negros Oriental,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178056

vs.
COMMISSION ON ELECTIONS; Municipality of Cabadbaran, Province of Agusan del
Norte; Municipality of Carcar, Province of Cebu; Municipality of El Salvador, Province of
RESOLUTION
BERSAMIN, J.:
We consider and resolve the Ad Cautelam Motion for Reconsideration filed by the petitioners
vis-à-vis the Resolution promulgated on February 15, 2011.
To recall, the Resolution promulgated on February 15, 2011 granted the Motion for
Reconsideration of the respondents presented against the Resolution dated August 24, 2010,
reversed the Resolution dated August 24, 2010, and declared the 16 Cityhood Laws — Republic
Acts Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435,
9436, and 9491 — constitutional.
Now, the petitioners anchor their Ad Cautelam Motion for Reconsideration upon the primordial
ground that the Court could no longer modify, alter, or amend its judgment declaring the
Cityhood Laws unconstitutional due to such judgment having long become final and executory.
They submit that the Cityhood Laws violated Section 6 and Section 10 of Article X of the
Constitution, as well as the Equal Protection Clause.
The petitioners specifically ascribe to the Court the following errors in its promulgation of the
assailed February 15, 2011 Resolution, to wit:
I. THE HONORABLE COURT HAS NO JURISDICTION TO PROMULGATE THE
RESOLUTION OF 15 FEBRUARY 2011 BECAUSE THERE IS NO LONGER ANY
ACTUAL CASE OR CONTROVERSY TO SETTLE.
II. THE RESOLUTION CONTRAVENES THE 1997 RULES OF CIVIL PROCEDURE

AND RELEVANT SUPREME COURT ISSUANCES.
III. THE RESOLUTION UNDERMINES THE JUDICIAL SYSTEM IN ITS

DISREGARD OF THE PRINCIPLES OF RES JUDICATA AND THE DOCTRINE OF
IMMUTABILITY OF FINAL JUDGMENTS.
IV. THE RESOLUTION ERRONEOUSLY RULED THAT THE SIXTEEN (16)

CITYHOOD BILLS DO NOT VIOLATE ARTICLE X, SECTIONS 6 AND 10 OF THE
1987 CONSTITUTION.
V. THE SIXTEEN (16) CITYHOOD LAWS VIOLATE THE EQUAL PROTECTION

CLAUSE OF THE CONSTITUTION AND THE RIGHT OF LOCAL
GOVERNMENTS TO A JUST SHARE IN THE NATIONAL TAXES.
Ruling
Upon thorough consideration, we deny the Ad Cautelam Motion for Reconsideration for its lack
of merit.
I.
Procedural Issues
With respect to the first, second, and third assignments of errors, supra, it appears that the
petitioners assail the jurisdiction of the Court in promulgating the February 15, 2011 Resolution,
claiming that the decision herein had long become final and executory. They state that the Court
thereby violated rules of procedure, and the principles of res judicata and immutability of final
judgments.
The petitioners posit that the controversy on the Cityhood Laws ended with the April 28, 2009
Resolution denying the respondents’ second motion for reconsideration vis-à-vis the November
18, 2008 Decision for being a prohibited pleading, and in view of the issuance of the entry of
judgment on May 21, 2009.
The Court disagrees with the petitioners.
In the April 28, 2009 Resolution, the Court ruled:
By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 is
DENIED for lack of merit. The motion is denied since there is no majority that voted to overturn
the Resolution of 31 March 2009.
The Second Motion for Reconsideration of the Decision of 18 November 2008 is DENIED for
being a prohibited pleading, and the Motion for Leave to Admit Attached Petition in Intervention
dated 20 April 2009 and the Petition in Intervention dated 20 April 2009 filed by counsel for
Ludivina T. Mas, et al. are also DENIED in view of the denial of the second motion for
reconsideration. No further pleadings shall be entertained. Let entry of judgment be made in due
course.
Justice Presbitero J. Velasco, Jr. wrote a Dissenting Opinion, joined by Justices Consuelo
Ynares-Santiago, Renato C. Corona, Minita Chico-Nazario, Teresita Leonardo-De Castro, and
Lucas P. Bersamin. Chief Justice Reynato S. Puno and Justice Antonio Eduardo B. Nachura took
no part. Justice Leonardo A. Quisumbing is on leave.1
Within 15 days from receipt of the April 28, 2009 Resolution, the respondents filed a Motion To
Amend Resolution Of April 28, 2009 By Declaring Instead That Respondents’ "Motion for
Reconsideration Of the Resolution Of March 31, 2009" And "Motion For Leave To File, And To
Admit Attached ‘Second Motion For Reconsideration Of The Decision Dated November 18,
2008’ Remain Unresolved And To Conduct Further Proceedings Thereon, arguing therein that a
determination of the issue of constitutionality of the 16 Cityhood Laws upon a motion for
reconsideration by an equally divided vote was not binding on the Court as a valid precedent,
citing the separate opinion of then Chief Justice Reynato S. Puno in Lambino v. Commission on
Elections.2
Thus, in its June 2, 2009 Resolution, the Court issued the following clarification of the April 28,
2009 Resolution, viz:
As a rule, a second motion for reconsideration is a prohibited pleading pursuant to Section 2,

Rule 52 of the Rules of Civil Procedure which provides that: "No second motion for
reconsideration of a judgment or final resolution by the same party shall be entertained." Thus, a
decision becomes final and executory after 15 days from receipt of the denial of the first motion
However, when a motion for leave to file and admit a second motion for reconsideration is
granted by the Court, the Court therefore allows the filing of the second motion for
reconsideration. In such a case, the second motion for reconsideration is no longer a prohibited
pleading.
In the present case, the Court voted on the second motion for reconsideration filed by respondent
cities. In effect, the Court allowed the filing of the second motion for reconsideration. Thus, the
second motion for reconsideration was no longer a prohibited pleading. However, for lack of the
required number of votes to overturn the 18 November 2008 Decision and 31 March 2009
Resolution, the Court denied the second motion for reconsideration in its 28 April 2009
Resolution.3
As the result of the aforecited clarification, the Court resolved to expunge from the records
several pleadings and documents, including respondents’ Motion To Amend Resolution Of April
28, 2009 etc.
The respondents thus filed their Motion for Reconsideration of the Resolution of June 2, 2009,
asseverating that their Motion To Amend Resolution Of April 28, 2009 etc. was not another
motion for reconsideration of the November 18, 2008 Decision, because it assailed the April 28,
2009 Resolution with respect to the tie-vote on the respondents’ Second Motion For
Reconsideration. They pointed out that the Motion To Amend Resolution Of April 28, 2009 etc.
was filed on May 14, 2009, which was within the 15-day period from their receipt of the April
28, 2009 Resolution; thus, the entry of judgment had been prematurely made. They reiterated
their arguments with respect to a tie-vote upon an issue of constitutionality.
In the September 29, 2009 Resolution,4 the Court required the petitioners to comment on the
Motion for Reconsideration of the Resolution of June 2, 2009 within 10 days from receipt.
As directed, the petitioners filed their Comment Ad Cautelam With Motion to Expunge.
The respondents filed their Motion for Leave to File and to Admit Attached "Reply to
Petitioners’ ‘Comment Ad Cautelam With Motion to Expunge’", together with the Reply.
On November 17, 2009, the Court resolved to note the petitioners’ Comment Ad Cautelam With
Motion to Expunge, to grant the respondents’ Motion for Leave to File and Admit Reply to
Petitioners’ Comment Ad Cautelam with Motion to Expunge, and to note the respondents’ Reply
to Petitioners’ Comment Ad Cautelam with Motion to Expunge.
On December 21, 2009, the Court, resolving the Motion To Amend Resolution Of April 28,
2009 etc. and voting anew on the Second Motion For Reconsideration in order to reach a
concurrence of a majority, promulgated its Decision granting the motion and declaring the
Cityhood Laws as constitutional,5 disposing thus:
WHEREFORE, respondent LGUs’ Motion for Reconsideration dated June 2, 2009, their
"Motion to Amend the Resolution of April 28, 2009 by Declaring Instead that Respondents’
‘Motion for Reconsideration of the Resolution of March 31, 2009’ and ‘Motion for Leave to File
and to Admit Attached Second Motion for Reconsideration of the Decision Dated November 18,
2008’ Remain Unresolved and to Conduct Further Proceedings," dated May 14, 2009, and their
second Motion for Reconsideration of the Decision dated November 18, 2008 are GRANTED.
The June 2, 2009, the March 31, 2009, and April 31, 2009 Resolutions are REVERSED and SET
ASIDE. The entry of judgment made on May 21, 2009 must accordingly be RECALLED.
The instant consolidated petitions and petitions-in-intervention are DISMISSED. The cityhood
laws, namely Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407,
9408, 9409, 9434, 9435, 9436, and 9491 are declared VALID and CONSTITUTIONAL.
SO ORDERED.
On January 5, 2010, the petitioners filed an Ad Cautelam Motion for Reconsideration against the
December 21, 2009 Decision.6 On the same date, the petitioners also filed a Motion to Annul
Decision of 21 December 2009.7
On January 12, 2010, the Court directed the respondents to comment on the motions of the
petitioners.8
On February 4, 2010, petitioner-intervenors City of Santiago, City of Legazpi, and City of Iriga
filed their separate Manifestations with Supplemental Ad Cautelam Motions for
Reconsideration.9 Similar manifestations with supplemental motions for reconsideration were
filed by other petitioner-intervenors, specifically: City of Cadiz on February 15, 2010;10 City of
Batangas on February 17, 2010;11 and City of Oroquieta on February 24, 2010.12 The Court
required the adverse parties to comment on the motions.13 As directed, the respondents complied.
On August 24, 2010, the Court issued its Resolution reinstating the November 18, 2008
Decision.14
On September 14, 2010, the respondents timely filed a Motion for Reconsideration of the
"Resolution" Dated August 24, 2010.15 They followed this by filing on September 20, 2010 a
Motion to Set "Motion for Reconsideration of the ‘Resolution’ dated August 24, 2010" for
Hearing.16 On November 19, 2010, the petitioners sent in their Opposition [To the "Motion for
Reconsideration of ‘Resolution’ dated August 24, 2010"].17 On November 30, 2010,18 the Court
noted, among others, the petitioners’ Opposition.
On January 18, 2011,19 the Court denied the respondents’ Motion to Set "Motion for
Reconsideration of the ‘Resolution’ dated August 24, 2010" for Hearing.
Thereafter, on February 15, 2011, the Court issued the Resolution being now challenged.
It can be gleaned from the foregoing that, as the June 2, 2009 Resolution clarified, the
respondents’ Second Motion For Reconsideration was not a prohibited pleading in view of the
Court’s voting and acting on it having the effect of allowing the Second Motion For
Reconsideration; and that when the respondents filed their Motion for Reconsideration of the
Resolution of June 2, 2009 questioning the expunging of their Motion To Amend Resolution Of
April 28, 2009 etc. (which had been filed within the 15-day period from receipt of the April 28,
2009 Resolution), the Court opted to act on the Motion for Reconsideration of the Resolution of
June 2, 2009 by directing the adverse parties through its September 29, 2009 Resolution to
comment. The same permitting effect occurred when the Court, by its November 17, 2009
Resolution, granted the respondents’ Motion for Leave to File and Admit Reply to Petitioners’
Comment Ad Cautelam with Motion to Expunge, and noted the attached Reply.
Moreover, by issuing the Resolutions dated September 29, 2009 and November 17, 2009, the
Court: (a) rendered ineffective the tie-vote under the Resolution of April 28, 2009 and the
ensuing denial of the Motion for Reconsideration of the Resolution of March 31, 2009 for lack of
a majority to overturn; (b), re-opened the Decision of November 18, 2008 for a second look
under reconsideration; and (c) lifted the directive that no further pleadings would be entertained.
The Court in fact entertained and acted on the respondents’ Motion for Reconsideration of the
Resolution of June 2, 2009. Thereafter, the Court proceeded to deliberate anew on the
respondents’ Second Motion for Reconsideration and ended up with the promulgation of the
December 21, 2009 Decision (declaring the Cityhood Laws valid and constitutional).
It is also inaccurate for the petitioners to insist that the December 21, 2009 Decision overturned
the November 18, 2008 Decision on the basis of the mere Reflections of the Members of the
Court. To be sure, the Reflections were the legal opinions of the Members and formed part of the
deliberations of the Court. The reference in the December 21, 2009 Decision to the Reflections
pointed out that there was still a pending incident after the April 28, 2009 Resolution that had
been timely filed within 15 days from its receipt,20 pursuant to Section 10, Rule 51,21 in relation
to Section 1, Rule 52,22 of the Rules of Court. Again, the Court did act and deliberate upon this
pending incident, leading to the issuance of the December 21, 2009 Decision (declaring the
Cityhood Laws free from constitutional infirmity). It was thereafter that the Court rendered its
August 24, 2010 Resolution (reinstating the November 18, 2008 Decision), to correct which the
respondents’ Motion for Reconsideration of the "Resolution" Dated August 24, 2010 was filed.
And, finally, the Court issued its February 15, 2011 Resolution, reversing and setting aside the
August 24, 2010 Resolution.
It is worth repeating that the actions taken herein were made by the Court en banc strictly in
accordance with the Rules of Court and its internal procedures. There has been no irregularity
attending or tainting the proceedings.
It also relevant to state that the Court has frequently disencumbered itself under extraordinary
circumstances from the shackles of technicality in order to render just and equitable relief.23
On whether the principle of immutability of judgments and bar by res judicata apply herein,
suffice it to state that the succession of the events recounted herein indicates that the controversy
about the 16 Cityhood Laws has not yet been resolved with finality. As such, the operation of the
principle of immutability of judgments did not yet come into play. For the same reason is an
adherence to the doctrine of res judicata not yet warranted, especially considering that the
precedential ruling for this case needed to be revisited and set with certainty and finality.
II.
Substantive Issues
The petitioners reiterate their position that the Cityhood Laws violate Section 6 and Section 10 of
Article X of the Constitution, the Equal Protection Clause, and the right of local governments to
a just share in the national taxes.
The Court differs.
Congress clearly intended that the local government units covered by the Cityhood Laws be
exempted from the coverage of R.A. No. 9009. The apprehensions of the then Senate President
with respect to the considerable disparity between the income requirement of P20 million under
the Local Government Code (LGC) prior to its amendment, and the P100 million under the
amendment introduced by R.A. No. 9009 were definitively articulated in his interpellation of
Senator Pimentel during the deliberations on Senate Bill No. 2157. The then Senate President
was cognizant of the fact that there were municipalities that then had pending conversion bills
during the 11th Congress prior to the adoption of Senate Bill No. 2157 as R.A. No. 9009,24
including the municipalities covered by the Cityhood Laws. It is worthy of mention that the
pertinent deliberations on Senate Bill No. 2157 occurred on October 5, 2000 while the 11th
Congress was in session, and the conversion bills were then pending in the Senate. Thus, the
responses of Senator Pimentel made it obvious that R.A. No. 9009 would not apply to the
conversion bills then pending deliberation in the Senate during the 11th Congress.
R.A. No. 9009 took effect on June 30, 2001, when the 12th Congress was incipient. By reason of
the clear legislative intent to exempt the municipalities covered by the conversion bills pending
during the 11th
Congress, the House of Representatives adopted Joint Resolution No. 29, entitled Joint
Resolution to Exempt Certain Municipalities Embodied in Bills Filed in Congress before June
30, 2001 from the coverage of Republic Act No. 9009. However, the Senate failed to act on Joint
Resolution No. 29. Even so, the House of Representatives readopted Joint Resolution No. 29 as
Joint Resolution No. 1 during the 12th Congress,25 and forwarded Joint Resolution No. 1 to the
Senate for approval. Again, the Senate failed to approve Joint Resolution No. 1.
At this juncture, it is worthwhile to consider the manifestation of Senator Pimentel with respect
to Joint Resolution No. 1, to wit:
MANIFESTATION OF SENATOR PIMENTEL
House Joint Resolution No. 1 seeks to exempt certain municipalities seeking conversion into
cities from the requirement that they must have at least P100 million in income of locally
generated revenue, exclusive of the internal revenue share that they received from the central
government as required under Republic Act No. 9009.
The procedure followed by the House is questionable, to say the least. The House wants the
Senate to do away with the income requirement of P100 million so that, en masse, the
municipalities they want exempted could now file bills specifically converting them into cities.
The reason they want the Senate to do it first is that Cong. Dodo Macias, chair of the House
Committee on Local Governments, I am told, will not entertain any bill for the conversion of
municipalities into cities unless the issue of income requirement is first hurdled. The House
leadership therefore wants to shift the burden of exempting certain municipalities from the
income requirement to the Senate rather than do it itself.
That is most unusual because, in effect, the House wants the Senate to pass a blanket resolution
that would qualify the municipalities concerned for conversion into cities on the matter of
income alone. Then, at a later date, the House would pass specific bills converting the
municipalities into cities. However, income is not only the requirement for municipalities to
become cities. There are also the requirements on population and land area.
In effect, the House wants the Senate to tackle the qualification of the municipalities they want
converted into cities piecemeal and separately, first is the income under the joint resolution, then
the other requirements when the bills are file to convert specific municipalities into cities. To
repeat, this is a most unusual manner of creating cities.
My respectful suggestion is for the Senate to request the House to do what they want to do
regarding the applications of certain municipalities to become cities pursuant to the requirements
of the Local Government Code. If the House wants to exempt certain municipalities from the
requirements of the Local Government Code to become cities, by all means, let them do their
thing. Specifically, they should act on specific bills to create cities and cite the reasons why the
municipalities concerned are qualified to become cities. Only after the House shall have
completed what they are expected to do under the law would it be proper for the Senate to act on
specific bills creating cities.
In other words, the House should be requested to finish everything that needs to be done in the
matter of converting municipalities into cities and not do it piecemeal as they are now trying to
do under the joint resolution.
In my long years in the Senate, this is the first time that a resort to this subterfuge is being
undertaken to favor the creation of certain cities. I am not saying that they are not qualified. All I
am saying is, if the House wants to pass and create cities out of certain municipalities, by all
means let them do that. But they should do it following the requirements of the Local
Government Code and, if they want to make certain exceptions, they can also do that too. But
they should not use the Senate as a ploy to get things done which they themselves should do.
Incidentally, I have recommended this mode of action verbally to some leaders of the House.
Had they followed the recommendation, for all I know, the municipalities they had envisioned to
be covered by House Joint Resolution No. 1 would, by now – if not all, at least some – have been
converted into cities. House Joint Resolution No. 1, the House, in effect, caused the delay in the
approval in the applications for cityhood of the municipalities concerned.
Lastly, I do not have an amendment to House Joint Resolution No. 1. What I am suggesting is
for the Senate to request the House to follow the procedure outlined in the Local Government
Code which has been respected all through the years. By doing so, we uphold the rule of law
and minimize the possibilities of power play in the approval of bills converting municipalities
into cities.26
Thereafter, the conversion bills of the respondents were individually filed in the House of
Representatives, and were all unanimously and
favorably voted upon by the Members of the House of Representatives.27 The bills, when
forwarded to the Senate, were likewise unanimously approved by the Senate.28 The acts of both
Chambers of Congress show that the exemption clauses ultimately incorporated in the Cityhood
Laws are but the express articulations of the clear legislative intent to exempt the respondents,
without exception, from the coverage of R.A. No. 9009. Thereby, R.A. No. 9009, and, by
necessity, the LGC, were amended, not by repeal but by way of the express exemptions being
embodied in the exemption clauses.
The petitioners further contend that the new income requirement of P100 million from locally
generated sources is not arbitrary because it is not difficult to comply with; that there are several
municipalities that have already complied with the requirement and have, in fact, been converted
into cities, such as Sta. Rosa in Laguna (R.A. No 9264), Navotas (R.A. No. 9387) and San Juan
(R.A. No. 9388) in Metro Manila, Dasmariñas in Cavite (R.A. No. 9723), and Biñan in Laguna
(R.A. No. 9740); and that several other municipalities have supposedly reached the income of
P100 million from locally generated sources, such as Bauan in Batangas, Mabalacat in
Pampanga, and Bacoor in Cavite.
The contention of the petitioners does not persuade.
As indicated in the Resolution of February 15, 2011, fifty-nine (59) existing cities had failed as
of 2006 to post an average annual income of P100 million based on the figures contained in the
certification dated December 5, 2008 by the Bureau of Local Government. The large number of
existing cities, virtually 50% of them, still unable to comply with the P100 million threshold
income five years after R.A. No. 9009 took effect renders it fallacious and probably unwarranted
for the petitioners to claim that the P100 million income requirement is not difficult to comply
with.
In this regard, the deliberations on Senate Bill No. 2157 may prove enlightening, thus:
Senator Osmeña III. And could the gentleman help clarify why a municipality would want to be
converted into a city?
Senator Pimentel. There is only one reason, Mr. President, and it is not hidden. It is the fact that
once converted into a city, the municipality will have roughly more than three times the share
that it would be receiving over the internal revenue allotment than it would have if it were to
remain a municipality. So more or less three times or more.
Senator Osmeña III. Is it the additional funding that they will be able to enjoy from a larger share
from the internal revenue allocations?
Senator Pimentel. Yes, Mr. President.
Senator Osmeña III. Now, could the gentleman clarify, Mr. President, why in the original
Republic Act No. 7160, known as the Local Government Code of 1991, such a wide gap was
made between a municipality—what a municipality would earn—and a city? Because
essentially, to a person’s mind, even with this new requirement, if approved by Congress, if a
municipality is earning P100 million and has a population of more than 150,000 inhabitants but
has less than 100 square kilometers, it would not qualify as a city.
Senator Pimentel. Yes.
Senator Osmeña III. Now would that not be quite arbitrary on the part of the municipality?
Senator Pimentel. In fact, Mr. President, the House version restores the "or". So, this is a matter
that we can very well take up as a policy issue. The chair of the committee does not say that we
should, as we know, not listen to arguments for the restoration of the word "or" in the population
or territorial requirement.
Senator Osmeña III. Mr. President, my point is that, I agree with the gentleman’s "and", but
perhaps we should bring down the area. There are certainly very crowded places in this country
that are less than 10,000 hectares—100 square kilometers is 10,000 hectares. There might only
be 9,000 hectares or 8,000 hectares. And it would be unfair if these municipalities already
earning P100,000,000 in locally generated funds and have a population of over 150,000 would
not be qualified because of the simple fact that the physical area does not cover 10,000 hectares.
Senator Pimentel. Mr. President, in fact, in Metro Manila there are any number of municipalities.
San Juan is a specific example which, if we apply the present requirements, would not qualify:
100 square kilometers and a population of not less than 150,000.
But my reply to that, Mr. President, is that they do not have to become a city?
Senator Osmeña III. Because of the income.
Senator Pimentel. But they are already earning a lot, as the gentleman said. Otherwise, the
danger here, if we become lax in the requirements, is the metropolis-located local governments
would have more priority in terms of funding because they would have more qualifications to
become a city compared to far-flung areas in Mindanao or in the Cordilleras, or whatever.
Therefore, I think we should not probably ease up on the requirements. Maybe we can restore the
word "or" so that if they do not have the 100 square kilometers of territory, then if they qualify in
terms of population and income, that would be all right, Mr. President.
Senator Osmeña III. Mr. President, I will not belabor the point at this time. I know that the
distinguished gentleman is considering several amendments to the Local Government Code.
Perhaps this is something that could be further refined at a later time, with his permission.
So I would like to thank the gentleman for his graciousness in answering our questions.
Senator Pimentel. I also thank the gentleman, Mr. President.29
The Court takes note of the fact that the municipalities cited by the petitioners as having
generated the threshold income of P100 million from local sources, including those already
converted into cities, are either in Metro Manila or in provinces close to Metro Manila. In
comparison, the municipalities covered by the Cityhood Laws are spread out in the different
provinces of the Philippines, including the Cordillera and Mindanao regions, and are
considerably very distant from Metro Manila. This reality underscores the danger the enactment
of R.A. No. 9009 sought to prevent, i.e., that "the metropolis-located local governments would
have more priority in terms of funding because they would have more qualifications to become a
city compared to the far-flung areas in Mindanao or in the Cordilleras, or whatever," actually
resulting from the abrupt increase in the income requirement. Verily, this result is antithetical to
what the Constitution and LGC have nobly envisioned in favor of countryside development and
national growth. Besides, this result should be arrested early, to avoid the unwanted divisive
effect on the entire country due to the local government units closer to the National Capital
Region being afforded easier access to the bigger share in the national coffers than other local
government units.
There should also be no question that the local government units covered by the Cityhood Laws
belong to a class of their own. They have proven themselves viable and capable to become
component cities of their respective provinces. They are and have been centers of trade and
commerce, points of convergence of transportation, rich havens of agricultural, mineral, and
other natural resources, and flourishing tourism spots. In his speech delivered on the floor of the
Senate to sponsor House Joint Resolution No. 1, Senator Lim recognized such unique traits,30
viz:
It must be noted that except for Tandag and Lamitan, which are both second-class municipalities
in terms of income, all the rest are categorized by the Department of Finance as first-class
municipalities with gross income of at least P70 million as per Commission of Audit Report for
2005. Moreover, Tandag and Lamitan, together with Borongan, Catbalogan, and Tabuk, are all
provincial capitals.
The more recent income figures of the 12 municipalities, which would have increased further by
this time, indicate their readiness to take on the responsibilities of cityhood.
Moreover, the municipalities under consideration are leading localities in their respective
provinces. Borongan, Catbalogan, Tandag, Batac and Tabuk are ranked number one in terms of
income among all the municipalities in their respective provinces; Baybay and Bayugan are
number two; Bogo and Lamitan are number three; Carcar, number four; and Tayabas, number
seven. Not only are they pacesetters in their respective provinces, they are also among the
frontrunners in their regions – Baybay, Bayugan and Tabuk are number two income-earners in
Regions VIII, XIII, and CAR, respectively; Catbalogan and Batac are number three in Regions
VIII and I, respectively; Bogo, number five in Region VII; Borongan and Carcar are both
number six in Regions VIII and VII, respectively. This simply shows that these municipalities
are viable.
Petitioner League of Cities argues that there exists no issue with respect to the cityhood of its
member cities, considering that they became cities in full compliance with the criteria for
conversion at the time of their creation.
The Court considers the argument too sweeping. What we pointed out was that the previous
income requirement of P20 million was definitely not insufficient to provide the essential
government facilities, services, and special functions vis-à-vis the population of a component
city. We also stressed that the increased income requirement of P100 million was not the only
conclusive indicator for any municipality to survive and remain viable as a component city.
These observations were unerringly reflected in the respective incomes of the fifty-nine (59)
members of the League of Cities that have still failed, remarkably enough, to be compliant with
the new requirement of the P100 million threshold income five years after R.A. No. 9009
became law.
Undoubtedly, the imposition of the income requirement of P100 million from local sources under
R.A. No. 9009 was arbitrary. When the sponsor of the law chose the specific figure of P100
million, no research or empirical data buttressed the figure. Nor was there proof that the proposal
took into account the after-effects that were likely to arise. As already mentioned, even the
danger the passage of R.A. No. 9009 sought to prevent might soon become a reality. While the
Constitution mandates that the creation of local government units must comply with the criteria
laid down in the LGC, it cannot be justified to insist that the Constitution must have to yield to
every amendment to the LGC despite such amendment imminently producing effects contrary to
the original thrusts of the LGC to promote autonomy, decentralization, countryside development,
and the concomitant national growth.
Moreover, if we were now to adopt the stringent interpretation of the Constitution the petitioners
are espousing, we may have to apply the same restrictive yardstick against the recently converted
cities cited by the petitioners, and find two of them whose conversion laws have also to be struck
down for being unconstitutional. The two laws are R.A. No. 938731 and R.A. No. 9388,32
respectively converting the municipalities of San Juan and Navotas into highly urbanized cities.
A cursory reading of the laws indicates that there is no indication of compliance with the
requirements imposed by the LGC, for, although the two local government units concerned
presumably complied with the income requirement of P50 million under Section 452 of the LGC
and the income requirement of P100 million under the amended Section 450 of the LGC, they
obviously did not meet the requirements set forth under Section 453 of the LGC, to wit:
Section 453. Duty to Declare Highly Urbanized Status.—It shall be the duty of the President to
declare a city as highly urbanized within thirty (30) days after it shall have met the minimum
requirements prescribed in the immediately preceding Section, upon proper application therefor
and ratification in a plebiscite by the qualified voters therein.
Indeed, R.A. No. 9387 and R.A. No. 9388 evidently show that the President had not classified
San Juan and Navotas as highly urbanized cities upon proper application and ratification in a
plebiscite by the qualified voters therein. A further perusal of R.A. No. 9387 reveals that San
Juan did not qualify as a highly urbanized city because it had a population of only 125,558,
contravening the required minimum population of 200,000 under Section 452 of the LGC. Such
non-qualification as a component city was conceded even by Senator Pimentel during the
deliberations on Senate Bill No. 2157.
The petitioners’ contention that the Cityhood Laws violated their right to a just share in the
national taxes is not acceptable.
In this regard, it suffices to state that the share of local government units is a matter of
percentage under Section 285 of the LGC, not a specific amount. Specifically, the share of the
cities is 23%, determined on the basis of population (50%), land area (25%), and equal sharing
(25%). This share is also dependent on the number of existing cities, such that when the number
of cities increases, then more will divide and share the allocation for cities. However, we have to
note that the allocation by the National Government is not a constant, and can either increase or
decrease. With every newly converted city becoming entitled to share the allocation for cities,
the percentage of internal revenue allotment (IRA) entitlement of each city will decrease,
although the actual amount received may be more than that received in the preceding year. That
is a necessary consequence of Section 285 and Section 286 of the LGC.
As elaborated here and in the assailed February 15, 2011 Resolution, the Cityhood Laws were
not violative of the Constitution and the LGC. The respondents are thus also entitled to their just
share in the IRA allocation for cities. They have demonstrated their viability as component cities
of their respective provinces and are developing continuously, albeit slowly, because they had
previously to share the IRA with about 1,500 municipalities. With their conversion into
component cities, they will have to share with only around 120 cities.
Local government units do not subsist only on locally generated income, but also depend on the
IRA to support their development. They can spur their own developments and thereby realize
their great potential of encouraging trade and commerce in the far-flung regions of the country.
Yet their potential will effectively be stunted if those already earning more will still receive a
bigger share from the national coffers, and if commercial activity will be more or less
concentrated only in and near Metro Manila.
III.
Conclusion
We should not ever lose sight of the fact that the 16 cities covered by the Cityhood Laws not
only had conversion bills pending during the 11th Congress, but have also complied with the
requirements of the LGC prescribed prior to its amendment by R.A. No. 9009. Congress
undeniably gave these cities all the considerations that justice and fair play demanded. Hence,
this Court should do no less by stamping its imprimatur to the clear and unmistakable legislative
intent and by duly recognizing the certain collective wisdom of Congress.
WHEREFORE, the Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February
2011) is denied with finality.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

ANTONIO EDUARDO B.
NACHURA
Associate Justice
Associate Justice
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice




Associate Justice
CERTIFICATION
above decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.
RENATO C. CORONA
Chief Justice
Footnotes
1
Rollo (G.R. No. 176951), Vol. 5, p. 4483.
2
G.R. No. 174153, October 25, 2006, 505 SCRA 160, 290.
3
Rollo (G.R. No. 176951), Vol. 5, pp. 4667-4668 (bold underscoring added for
emphasis).
4
Id., p. 4880.
5
Rollo (G.R. No. 176951), Vol. 6, p. 5081.
6
Id., pp. 5106-5238.
7
Id., pp. 5139-5160.
8
Id., p. 5161.
9
Id., pp. 5196-5200, 5202-5210, & 5212-5217, respectively.
10
Id., pp. 5346-5351.
11
Id., pp. 5365-5369.
12
Id., pp. 5420-5427.
13
Id., p. 5342 (February 9, 2010 Resolution Re: Manifestations & Motions of the Cities
of Santiago, Legazpi, & Iriga); p. 5353 (February 16, 2010 Resolution Re: Manifestation
& Motion of Cadiz City); p. 5397 (February 23, 2010 Resolution Re: Manifestation &
Motion of Batangas City); and p. 5536 (March 2, 2010 Resolution Re: Manifestation &
Motion of Oroquieta City).
14
Id., pp. 5846-5861.
15
Id., pp. 5879-5849.
16
Id., pp.6369-6379.
17
Id., pp. 6388-6402.
18
Id., p. 5998.
19
Id., p. 6338.
20
The incident was the Motion To Amend Resolution Of April 28, 2009 By Declaring
Instead That Respondents’ "Motion for Reconsideration Of the Resolution Of March 31,
2009" And "Motion For Leave To File, And To Admit Attached ‘Second Motion For
Reconsideration Of The Decision Dated November 18, 2008’ Remain Unresolved And
To Conduct Further Proceedings Thereon.
21
Section 10. Entry of judgments and final resolutions.—If no appeal or motion for new
trial or reconsideration is filed within the time provided in these Rules, the judgment or
final resolution shall forthwith be entered by the clerk in the book of entries of
judgments. The date when the judgment or final resolution becomes executory shall be
deemed as the date of its entry. The record shall contain the dispositive part of the
judgment or final resolution and shall be signed by the clerk, with a certificate that such
judgment or final resolution has become final and executory.
22
Section 1. Period for filing.—A party may file a motion for reconsideration of a
judgment or final resolution within fifteen (15) days from notice thereof, with proof of
service on the adverse party.
23
See Manotok IV v. Heirs of Barque, G.R. Nos. 162335 & 162605, December 18, 2008,
574 SCRA 468; Province of North Cotabato v. Government of the Republic of the
Philippines Peace Panel on Ancestral Domain (GRP), G.R. Nos. 183591, 183752,
183893, 183951, and 183962, October 14, 2008, 568 SCRA 402; Manalo v. Calderon,
G.R. No. 178920, October 15, 2007, 536 SCRA 290; David v. Macapagal-Arroyo, G.R.
No. 171396, May 3, 2006, 489 SCRA 160; and Province of Batangas v. Romulo, G.R.
No. 152774, May 27, 2004, 429 SCRA 736.
24
June 1998-June 2001.
25
June 2001-June 2004.
26
Journal, Senate, 13th Congress, pp. 651-652 (November 7, 2006); see rollo (G.R. No.
176951), Vol. 5, pp. 3783-3784 (bold underscoring added for emphasis).
27
Certification dated December 6, 2008, issued by the House of Representatives Plenary
Affairs Bureau signed by Atty. Cesar S. Pareja, Executive Director of the House of
Representatives Plenary Affairs Bureau and noted by Atty. Marilyn B. Barua-Yap,
Secretary General of the House of Representatives; rollo (G.R. No. 176951), Vol. 5, pp.
3799-3801.
28
"Legislative History" of House Bill No. (HBN) 5973 (Republic Act [R.A.] No. 9389);
HBN-5997 (R.A. No. 9390); HBN-5998 (R.A. No. 9391); HBN-5999 (R.A. No. 9392);
and HBN-6041 (R.A. No. 9491); Senate Legislative Information System, last accessed on
March 25, 2011 at http://202.57.33.10/plis/Public/PB_leghist.asp.
29
II Record, Senate, 13th Congress, p. 167 (October 5, 2000); rollo (G.R. No. 176951),
Vol. 5, p. 3768.
30
Journal, Senate, 13th Congress, p. 1240 (January 29, 2007); rollo, (G.R. No. 176951),
Vol. 5, p. 3775.
31
An Act Converting the Municipality of San Juan into a Highly Urbanized City to be
Known as the City of San Juan.
32
An Act Converting the Municipality of Navotas into a Highly Urbanized City to be
Known as the City of Navotas.
DISSENTING OPINION
CARPIO, J.:
This Court has made history with its repeated flip-flopping1 in this case.
On 18 November 2008, the Court rendered a decision declaring unconstitutional the 16

Cityhood Laws. The decision became final after the denial of two motions for reconsideration
filed by the 16 municipalities. An Entry of Judgment was made on 21 May 2009. The decision
was executed (1) when the Department of Budget and Management issued LBM (Local Budget
Memorandum) No. 61 on 30 June 2009, providing for the final Internal Revenue Allotment for
2009 due to the reversion of 16 newly created cities to municipalities; and (2) when the
Commission on Elections issued Resolution No. 8670 on 22 September 2009, directing that
voters in the 16 municipalities shall vote not as cities but as municipalities in the 10 May 2010
elections. In addition, fourteen Congressmen, having jurisdiction over the 16 respondent
municipalities, filed House Bill 6303 seeking to amend Section 450 of the Local Government
Code, as amended by Republic Act No. 9009. The proposed amendment was intended to correct
the infirmities in the Cityhood Laws as cited by this Court in its 18 November 2008 Decision.2
Subsequently, the Court rendered three more decisions: (1) 21 December 2009, declaring the
Cityhood Laws constitutional; (2) 24 August 2010, declaring the Cityhood Laws
unconstitutional; and (3) 15 February 2011 declaring the Cityhood Laws constitutional.
Clearly, there were three reversals or flip-flops in this case.
In the Resolution of 15 February 2011, the majority upheld the constitutionality of the 16
Cityhood Laws, declaring that (1) the Cityhood Laws do not violate Section 10, Article X of the
Constitution; and (2) the Cityhood Laws do not violate Section 6, Article X and the equal
protection clause of the Constitution.
I reiterate my unwavering position from the start – that the 16 Cityhood Laws are
unconstitutional.
I.
The Cityhood Laws are laws other than the Local Government Code.
In sustaining the constitutionality of the 16 Cityhood Laws, the majority ruled in the Resolution
of 15 February 2011 that "in effect, the Cityhood Laws amended RA No. 9009 through the
exemption clauses found therein. Since the Cityhood Laws explicitly exempted the concerned
municipalities from the amendatory RA No. 9009, such Cityhood Laws are, therefore, also
amendments to the LGC itself." In the Resolution denying petitioner's motion for
reconsideration, the majority stated that "RA 9009, and, by necessity, the LGC, were amended, x
x x by way of the express exemptions embodied in the exemption clauses."
This is egregious error.
Nowhere in the plain language of the Cityhood Laws can this interpretation be discerned. Neither
the title nor the body of the Cityhood Laws sustains such conclusion. Simply put, there is
absolutely nothing in the Cityhood Laws to support the majority decision that the Cityhood Laws
further amended the Local Government Code, which exclusively embodies the essential
requirements for the creation of cities, including the conversion of a municipality into a city.
An "amendment" refers to a change or modification to a previously adopted law.3 An

amendatory law merely modifies a specific provision or provisions of a previously adopted law.4
Indisputably, an amendatory law becomes an integral part of the law it seeks to amend.
On the contrary, each Cityhood Law contains a uniformly worded Separability Clause which
expressly states:
Separability Clause. - If, for any reason or reasons, any part or provision of this Charter
shall be held unconstitutional, invalid or inconsistent with the Local Government Code of
1991, the other parts or provisions hereof which are not affected thereby shall continue to be in
full force and effect. Moreover, in cases where this Charter is silent or unclear, the pertinent
provisions of the Local Government Code shall govern, if so provided therein.5 (Emphasis
supplied)
Each Cityhood Law states that if any of its provisions is "inconsistent with the Local
Government Code," the other consistent provisions "shall continue to be in full force and
effect." The clear and inescapable implication is that any provision in each Cityhood Law
that is "inconsistent with the Local Government Code" has no force and effect – in short,
void and ineffective. Each Cityhood Law expressly and unequivocally acknowledges the
superiority of the Local Government Code, and that in case of conflict, the Local Government
Code shall prevail over the Cityhood Law. Clearly, the Cityhood Laws do not amend the
Local Government Code, and the Legislature never intended the Cityhood Laws to amend the
Local Government Code. The clear intent and express language of the Cityhood Laws is for
these laws to conform to the Local Government Code and not the other way around.
To repeat, every Cityhood Law unmistakably provides that any provision in the Cityhood Law
that is inconsistent with the Local Government Code is void. It follows that the Cityhood Laws
cannot be construed to authorize the creation of cities that have not met the prevailing P100
million income requirement prescribed without exception in the Local Government Code.
Moreover, Congress, in providing in the Separability Clause that the Local Government Code
shall prevail over the Cityhood Laws, treats the Cityhood Laws as separate and distinct from the
Local Government Code. In other words, the Cityhood Laws do not form integral parts of the
Local Government Code but are separate and distinct laws. There is therefore no question
that the Cityhood Laws are laws other than the Local Government Code. As such, the Cityhood
Laws cannot stipulate an exception from the requirements for the creation of cities, prescribed in
the Local Government Code, without running afoul of the explicit mandate of Section 10, Article
X of the 1987 Constitution.
This constitutional provision reads:
established in the Local Government Code itself and not in any other law. There is only one
Local Government Code.6 To avoid discrimination and ensure uniformity and equality, the
Constitution expressly requires Congress to stipulate in the Local Government Code itself all the
criteria necessary for the creation of a city, including the conversion of a municipality into a city.
Congress cannot write such criteria in any other law, like the Cityhood Laws.
II.
The increased income requirement of P100 million
is neither arbitrary nor difficult to comply.
The majority resolution of 15 February 2011 states that "the imposition of the P100 million
average annual income requirement for the creation of component cities was arbitrarily made."
The majority resolution further declares: "x x x there was no evidence or empirical data, such as
inflation rates, to support the choice of this amount. The imposition of a very high income
requirement of P100 million, increased from P20 million, was simply to make it extremely
difficult for municipalities to become component cities."
This is glaring error.
In stating that there is no evidence to support the increased income requirement, the majority is
requiring the Legislature, the sole law-making body under the Constitution, to provide evidence
justifying the economic rationale, like inflation rates, for the increase in income requirement. The
Legislature, in enacting RA No. 9009, is not required by the Constitution to show the courts data
like inflation figures to support the increased income requirement. Besides, even assuming the
inflation rate is zero, this Court cannot invalidate the increase in income requirement on such
ground. A zero inflation rate does not bar the Legislature from increasing the income
requirement to convert a municipality into a city, or increasing taxes or tax rates, or
increasing capital requirements for businesses. This Court should not venture into areas of
analyses obviously beyond its competence.
As long as the increased income requirement is not impossible to comply, such increase is a
policy determination involving the wisdom of the law, which exclusively lies within the province
of the Legislature. When the Legislature enacts laws increasing taxes, tax rates, or capital
requirements for businesses, the Court cannot refuse to apply such laws on the ground that there
is no economic justification for such increases. Economic, political or social justifications for the
enactment of laws go into the wisdom of the law, outside the purview of judicial review. This
Court cannot refuse to apply the law unless the law violates a specific provision of the
Constitution. There is plainly nothing unconstitutional in increasing the income requirement
from P20 million to P100 million because such increase does not violate any express or implied
provision of the Constitution.
The majority declares that the P100 million income requirement under RA No. 9009 was
imposed "simply to make it extremely difficult for the municipalities to become component
cities." In short, the majority is saying that the Legislature, out of sheer whim or spite at
municipalities, increased the income requirement from P20 million to P100 million. Thus, the
majority applied the P20 million income requirement under the repealed law, not the P100
million income requirement under the prevailing law. Yet, the majority does not state that the
P100 million income requirement is unconstitutional. The majority simply refuses to apply the
prevailing law, choosing instead to apply a repealed law. There is neither law nor logic in the
majority decision.
The majority's conclusion that the Legislature increased the income requirement from P20
million to P100 million "simply to make it difficult for the municipalities to become
component cities" is not only unfair to the Legislature, it is also grossly erroneous. Contrary to
the majority's baseless conclusion, the increased income requirement of P100 million is not at all
difficult to comply. As pointed out by petitioner, the cities of San Juan7 and Navotas,8 which met
the P100 million income requirement, were created at the same time as the enactment of the
Cityhood Laws by the same 13th Congress.9 Prior to this, the City of Sta. Rosa, which also met
the P100 million income requirement, was created through Republic Act No. 9264.10
Subsequently, the cities of Dasmariñas in Cavite11 and Biñan in Laguna12 were created in full
compliance with the P100 million income criterion.
Further disproving the majority's erroneous conclusion, an additional twenty-one (21)

municipalities have satisfied the P100 million income requirement for the creation of cities.13
Accordingly, petitioner League of Cities has endorsed the cityhood application of these 21
municipalities.14 These municipalities are:
· Cabuyao and San Pedro (Laguna)
· Cainta, Taytay, and Binangonan (Rizal)
· Bacoor, Gen. Trias, Imus, Carmona, and Silang (Cavite)
· San Pedro (Laguna)
· Pantabangan (Nueva Ecija)
· Calaca, Sto. Tomas, Bauan and Nasugbu ( Batangas)
· Mauban in (Quezon)
· Marilao, Sta. Maria and Norzagaray (Bulacan)
· Limay (Bataan)
Compliance by these municipalities with the P100 million income requirement underscores the
fact that the P100 million income requirement is not difficult to comply at all, contrary to the
baseless and speculative conclusion in the majority decision. In short, the majority decision is
based on patently and undeniably false and erroneous premises.
Indisputably, right after the enactment of RA No. 9009, Congress passed laws converting
municipalities into cities using the new P100 million income requirement. Subsequently,
Congress enacted the 16 Cityhood Laws using the old P20 million income requirement.
Thereafter, Congress again passed laws converting additional municipalities into cities using the
P100 million income requirement. The 16 Cityhood Laws stick out like a sore thumb, starkly
showing an obvious violation of the equal protection clause. The Cityhood Laws create distinctly
privileged cities with only P20 million annual income, discriminating against cities with P100
million annual income created before and after the enactment of the Cityhood Laws. This kind
of discrimination is precisely what Section 10, Article X of the Constitution seeks to prohibit
when it commands that "no x x x city x x x shall be created x x x except in accordance with the
criteria established in the local government code."
The majority harp on the fact that 59 existing cities had failed as of 2006 to post an average
annual income of P100 million.
Suffice it to state that there is no Constitutional or statutory requirement for the 59 existing cities
to comply with the P100 million income requirement. Obviously, these cities were already
cities prior to the amendment of the Local Government Code providing for the increased
income requirement of P100 million. In other words, at the time of their creation, these cities
have complied with the criteria prescribed under the old Local Government Code for the creation
of cities, and thus are not required to comply with the P100 million income requirement of the
prevailing Local Government Code. It is utterly misplaced and grossly erroneous to cite the
"non-compliance" by the 59 existing cities with the increased income requirement of P100
million to conclude that the P100 million income requirement is arbitrary and difficult to
comply.
Moreover, as stated, the majority do not find the increased income requirement of P100 million
unconstitutional or unlawful. Unless the P100 million income requirement violates a provision of
the Constitution or a law, such requirement for the creation of a city must be strictly complied
with. Any local government unit applying for cityhood, whether located in or outside the
metropolis and whether within the National Capital Region or not, must meet the P100 million
income requirement prescribed by the prevailing Local Government Code. There is absolutely
nothing unconstitutional or unlawful if the P100 million income requirement is easily complied
with by local government units within or near the National Capital Region. The majority's
groundless and unfair discrimination against these metropolis-located local government units
must necessarily fail.
Further, that San Juan and Navotas had not allegedly been classified by the President as highly
urbanized cities, pursuant to Section 453 of the Local Government Code, does not signify that
these cities do not meet the P100 million income requirement. In fact, the majority concedes that
it is presumed that San Juan and Navotas cities have complied with the P100 million income
requirement. Besides, it is totally pointless to fault the cities of San Juan and Navotas for an
unperformed duty of the President.
III.
The reduction of the share in the Internal Revenue Allotment
will adversely affect the cities' economic situation.
In the Resolution of 15 February 2011, the majority declared that petitioner's protest against the
reduction of their just share in the Internal Revenue Allotment "all boils down to money,"
criticizing petitioners for overlooking the alleged need of respondent municipalities to become
channels of economic growth in the countryside.
The majority gravely loses sight of the fact that "the members of petitioner League of Cities are
also in need of the same resources, and are responsible for development imperatives that need to
be done for almost 40 million Filipinos, as compared to only 1.3 million Filipinos in the
respondent municipalities." As pointed out by petitioner, "this is just about equal to the
population of Davao City, whose residents, on a per capita basis, receive less than half of what
respondent municipalities' residents would receive if they become cities. Stated otherwise, for
every peso that each Davaoeño receives, his counterpart in the respondent municipality will
receive more than two pesos."
In addition, the majority conveniently forgets that members of the LCP have more projects, more
contractual obligations, and more employees than respondent municipalities. If their share in the
Internal Revenue Allotment is unreasonably reduced, it is possible, even expected, that these
cities may have to lay-off workers and abandon projects, greatly hampering, or worse paralyzing,
the delivery of much needed public services in their respective territorial jurisdictions.
Obviously, petitioner's protest does not boil down to money. It boils down to equity and
fairness, rational allocation of scarce resources, and above all, faithful compliance with an
express mandatory provision of the Constitution. No one should put a monetary value to
compliance with an express command of the Constitution. Neither should any one, least of all
this Court, disregard a patent violation of the Constitution just because the issue also involves
monetary recovery. To do so would expose the stability of the Constitution to the corrosive
vagaries of the marketplace.
IV.
Not substantial compliance,
but outright violation of the Constitution.
In his Concurring Opinion to the Resolution of 15 February 2011, Justice Roberto A. Abad
stated, "These new cities have not altogether been exempted from the operation of the Local
Government Code covering income requirement. They have been expressly made subject to
the lower income requirement of the old code. There remains, therefore, substantial
compliance with the provision of Section 10, Article X of the Constitution."
This is gross error.
There is a wide disparity – an P80 million difference – in the income requirement of P20 million
under the old Local Government Code and the P100 million requirement under the prevailing
Local Government Code. By any reasonable yardstick known to man since the dawn of
civilization, compliance with the old income requirement, which is only 20% compliance with
the new income requirement under the prevailing law, cannot be deemed "substantial
compliance." It is like saying that those who obtain a general average of 20% in the Bar
Examinations are in "substantial compliance" with the requirement for admission to the Bar
where the highest possible score is 100%.
RA No. 9009 amended the Local Government Code precisely because the criteria in the old
Local Government Code were no longer sufficient. In short, RA No. 9009 repealed the old
income requirement of P20 million, a requirement that no longer exists in our statute books.
Compliance with the old income requirement is compliance with a repealed, dead, and non-
existent law – a totally useless, futile, and empty act. Worse, compliance with the old
requirement is an outright violation of the Constitution which expressly commands that "no x x
x city x x x shall be created x x x except in accordance with the criteria established in the
local government code." To repeat, applying what Justice Abad calls "the lower income
requirement of the old code" is applying a repealed, dead, and non-existent law, which is exactly
what the majority decision has done.
The invocation here of "substantial compliance" of the Constitution reminds us of what Justice
Calixto Zaldivar wrote in his dissenting opinion in Javellana v. Executive Secretary:15 "It would
be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a
substantial compliance with the requirements prescribed in Section 1 of Article XV of the 1935
Constitution." The same can be said in this case.
A final point. There must be strict compliance with the express command of the Constitution that
"no city x x x shall be created x x x except in accordance with the criteria established in the
local government code." Substantial compliance is insufficient because it will discriminate
against all other cities that were created before and after the enactment of the Cityhood Laws
in strict compliance with the criteria in the Local Government Code, as amended by RA No.
9009. The conversion of municipalities into new cities means an increase in the Internal Revenue
Allotment of the former municipalities and a corresponding decrease in the Internal Revenue
Allotment of all other existing cities. There must be strict, not only substantial, compliance with
the constitutional requirement because the economic lifeline of existing cities may be seriously
affected. Thus, the invocation of "substantial compliance" with constitutional requirements is
clearly misplaced in this case.
V.
Conclusion
To repeat, the Constitution expressly requires Congress to stipulate in the Local Government
Code itself all the criteria necessary for the creation of a city, including the conversion of a
municipality into a city. To avoid discrimination and ensure uniformity and equality, such
criteria cannot be embodied in any other law except the Local Government Code. In this case,
the Cityhood Laws, which are unmistakably laws other than the Local Government Code,
provide an exemption from the increased income requirement for the creation of cities under
Section 450 of the Local Government Code, as amended by RA No. 9009. Clearly, the Cityhood
Laws contravene the letter and intent of Section 10, Article X of the Constitution.
Moreover, by express provision in the Separability Clause of each Cityhood Law, in case of
inconsistency between the Cityhood Law and the Local Government Code, the latter shall
prevail. Thus, the P100 million income requirement in the Local Government Code prevails over
the P20 million income requirement under the Cityhood Laws.1avvphil
Finally, this Court must be true to its sworn duty to uphold, defend, and protect the Constitution
fully and faithfully, without "indulging in sophistry" or seeking refuge behind a patently
dubious invocation of "substantial compliance" with the Constitution.
Accordingly, I vote to GRANT the motion for reconsideration of the League of Cities of the
Philippines.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1
"Flip-flop" is defined as "an abrupt reversal of policy: the candidate flip-flopped on a
number of issues" (The New Oxford Dictionary of English, 1998); "a sudden reversal (as
of policy or strategy)" (Merriam-Webster Unabridged Dictionary Version 3.0, 2003); "A
reversal, as of a stand or position; a foreign policy flip-flop" (American Heritage Talking
Dictionary, 1997); "A decision to reverse an earlier decision" (WordWeb Pro Version
6.4, 2011); "an abrupt reversal of policy" (Oxford Dictionaries Online, accessed 4 April
2011).
2
http://www.congress.gov.ph/committees/commnews/commnews_det.php?newsid=1162
3
See Commissioner of Customs v. Court of Tax Appeals, G.R. Nos. 48886-88, 21 July
1993, where the Court stated that "The change in phraseology by amendment of a
provision of law indicates a legislative intent to change the meaning of the provision from
that it originally had."
4
See Agpalo, Ruben E., Statutory Construction, Second Edition, 1990, pp. 278-279,
citing David v. Dancel, G.R. No. 21485, 25 July 1966, 17 SCRA 696 (1966).
5
Section 63, Republic Act No. 9389 (Baybay, Leyte); Section 61, Republic Act No. 9390
(Bogo, Cebu); Section 62, Republic Act No. 9391 (Catbalogan, Samar); Section 63,
Republic Act No. 9392 (Tandag , Surigao del Sur); Section 63, Republic Act No. 9393
(Lamitan, Basilan); Section 61, Republic Act No. 9394 (Borongan, Samar); Section 63,
Republic Act No. 9398 (Tayabas, Quezon); Section 57, Republic Act No. 9404 (Tabuk,
Kalinga); Section 62, Republic Act No. 9405 (Bayugan, Agusan del Sur); Section 63,
Republic Act No. 9407 (Batac, Ilocos Norte); Section 62, Republic Act No. 9408 (Mati,
Davao Oriental); Section 62, Republic Act No. 9409 (Guihulngan, Negros Oriental);
Section 61, Republic Act No. 9434 (Cabadbaran, Agusan del Norte); Section 64,
Republic Act No. 9435 (El Salvador, Misamis Oriental); Section 63, Republic Act No.
9436 (Carcar, Cebu); and Section 65, Republic Act No. 9491 (Naga, Cebu).
6
7
Through Republic Act No. 9388. Approved on 11 March 2007.
8
Through Republic Act No. 9387. Approved on 10 March 2007.
9
Republic Act No. 9356, converting the municipality of Meycauayan, Bulacan into a
city, was enacted on 2 October 2006 also during the 13th Congress.
10
Enacted 10 March 2004.
11
Through Republic Act No. 9723. Approved on 15 October 2009.
12
Through Republic Act No. 9740. Approved on 30 October 2009.
13
http://www.philstar.com/Article.aspx?articleId=666748&publicationSubCategoryId=200
14
http://www.philstar.com/Article.aspx?articleId=666748&publicationSubCategoryId=200
15
G.R. No. L-36142, 31 March 1973.
CONCURRING OPINION
ABAD, J.:
I fully concur in the resolution that Justice Lucas Bersamin wrote for the majority. I would want,
however, to reply briefly to the charge that the Court has been guilty of "flip-plopping" in this
case. Since the Court is a collegial body, the implication is that the majority of its members have
collectively flip-flopped in their decisions.
But the charge is unfair as it is baseless. The Court is not a living person whose decisions and
actions are ruled by the whim of one mind. As a collegial body, the Court acts by consensus
among its fifteen members. And total agreement is not always attainable. This is especially true
where the political, social, or economic stakes involved are high or affect a great number of
people and the views of the individual members are closely divided.
The ideal is to have an early consensus among the Court’s members in any given dispute. But,
given the variety of their learning and experiences as former judges, trial lawyers, government
counsels, academicians, and administrators, that is hardly an easy objective. Justices look at
cases through different lenses. Disagreements in their conclusions can and often happen. Thus,
they are forced to take a vote and the will of the majority prevails.
It is when the votes among its members are closely divided as in this case that the decision of the
Court could, on a motion for reconsideration, swing to the opposite side and, at times on a
second motion for reconsideration, revert to the original side. The losers often malign this as flip-
flopping by the Court.
This of course is a lie in the sense that it tends to picture the Court as a silly, blundering, idiot
which cannot make up its mind. The fact is that the shifts in the Court’s decisions in this case
were not at all orchestrated as the circumstances will show. They were the product of honest
disagreements.
Congress passed a number of laws converting sixteen municipalities into cities. The League of
Cities assailed these laws as unconstitutional on the ground that the sixteen municipalities
involved did not meet the P100 million minimum income requirement of the Local Government
Code. For their part, the municipalities countered that their laws constituted valid legislative
amendments of such requirement.
The Court was divided in its original decision of November 18, 2008 in the case.1awphi1 A
majority of six Justices voted to annul the laws, five members dissented, and four took no part
(6-5-4), as follows:
Majority (annul) Minority (uphold) No Part

1. J. Quisumbing 1. J. Corona 1. C.J. Puno
2. J. Carpio 2. J. Azcuna 2. J. Tinga
3. J. Martinez 3. J. Nazario 3. J. Nachura
4. J. Morales 4. J. Reyes 4. J. Santiago (on leave)
5. J. Velasco 5. J. De Castro
6. J. Brion
Notably, the majority won by just 1 vote. Their lead firmed up, however, with an increase of 2
votes when the Court took up the motion for reconsideration of the sixteen municipalities on
March 31, 2009, thus:

1. J. Quisumbing 1. J. Santiago 1. C.J. Puno
2. J. Carpio 2. J. Corona 2. J. Nachura
3. J. Martinez 3. J. Nazario
4. J. Morales 4. J. Velasco
5. J. Tinga 5. J. De Castro
6. J. Brion
7. J. Peralta
In the above, Justice Velasco opted to leave the majority, but he was quickly replaced by J.
Tinga, who decided to take part in the second voting, and Justice Peralta, a newcomer. The
minority maintained its five votes because, although Justices Reyes and Azcuna retired, Justice
Velasco who changed side and Justice Santiago who now took part replaced them. Chief Justice
Puno and Justice Nachura stayed out of it. The vote was 7-5-2.
But when on April 28, 2009 the Court acted on the sixteen municipalities’ second motion for
reconsideration, the vote resulted on a tie. Thus:
Even votes (annul) Even votes (uphold) No Part

1. J. Carpio 1. J. Santiago 1. C.J. Puno
2. J. Martinez 2. J. Corona 2. J. Nachura
3. J. Morales 3. J. Nazario 3. J. Quisumbing
4. J. Tinga 4. J. Velasco (on leave)
5. J. Brion 5. J. De Castro
6. J. Peralta 6. J. Bersamin
In the above, the majority lost 1 vote owing to Justice Quisumbing going on leave. On the other
hand, the minority gained 1 vote from Justice Bersamin, a newcomer. Three took no part,
resulting in a vote of 6-6-3. The Court was divided in its interpretation of this 6-6 result. One
group argued that the failure of the minority to muster a majority vote had the effect of
maintaining the Court’s last ruling. Some argued, however, that since the Constitution required a
majority vote for declaring laws passed by Congress unconstitutional, the new voting restored
the constitutionality of the subject laws.
When a re-voting took place on December 21, 2009 to clear up the issue, the result shifted in
favor of the sixteen municipalities, thus:
Majority (uphold) Minority (annul) No Part

1. J. Corona 1. J. Carpio 1. C.J. Puno
2. J. Velasco 2. J. Morales 2. J. Nachura
3. J. De Castro 3. J. Brion 3. J. Del Castillo
4. J. Bersamin 4. J. Peralta
5. J. Abad
6. J. Villarama
In the above, two Justices, Tinga and Martinez, from the former majority retired, leaving their
group just 4 votes. On the other hand, although two Justices, Santiago and Nazario, also retired
from the former minority, two new members, Justices Abad and Villarama, joined their rank.
Justice Del Castillo, a new member, did not take part like the rest. The new vote was 6-4-3 (2
vacancies), with the new majority voting to uphold the constitutionality of the laws that
converted the sixteen municipalities into cities.
But their victory was short-lived. When the Court voted on the motion for reconsideration of the
losing League of Cities on August 24, 2010, three new members, Justices Perez, Mendoza, and
Sereno, joined the Court. The majority shifted anew, thus:

1. J. Carpio 1. C.J. Corona 1. J. Nachura
2. J. Morales 2. J. Velasco 2. J. Del Castillo
3. J. Brion 3. J. De Castro
4. J. Peralta 4. J. Bersamin
5. J. Villarama 5. J. Abad
6. J. Mendoza 6. J. Perez
7. J. Sereno
Notably, Justice Villarama changed his vote and joined the rank of those who opposed the
conversion of the sixteen municipalities into cities. Two new Justices (Mendoza and Sereno)
joined the new majority of seven that voted to annul the subject laws. On the other hand,
although one of their members left for the other side, the 6 votes of the new minority remained
because a new member, Justice Perez, joined it.
The sixteen municipalities filed a motion for reconsideration of the new decision and voting took
place on February 15, 2011. Justice Mendoza changed side and voted to uphold the
constitutionality of the laws of the sixteen municipalities, resulting in a shift in the majority as
follows:
Majority (uphold) Minority (annul) No Part

1. J. Corona 1. J. Carpio 1. J. Nachura
2. J. Velasco 2. J. Morales 2. J. Del Castillo
3. J. De Castro 3. J. Brion
4. J. Bersamin 4. J. Peralta
5. J. Abad 5. J. Villarama
6. J. Perez 6. J. Sereno
7. J. Mendoza
To recapitulate what took place in this case:
One. The Justices did not decide to change their minds on a mere whim. The two sides
filed motions for reconsideration in the case and the Justices had no options, considering
their divided views, but perform their duties and vote on the same on the dates the
matters came up for resolution.
The Court is no orchestra with its members playing one tune under the baton of a
maestro. They bring with them a diversity of views, which is what the Constitution
prizes, for it is this diversity that filters out blind or dictated conformity.
Two. Of twenty-three Justices who voted in the case at any of its various stages, twenty
Justices stood by their original positions. They never reconsidered their views. Only three
did so and not on the same occasion, showing no wholesale change of votes at any time.
Three. To flip-flop means to vote for one proposition at first (take a stand), shift to the
opposite proposition upon the second vote (flip), and revert to his first position upon the
third (flop). Not one of the twenty-three Justices flipped-flopped in his vote.
Four. The three Justices who changed their votes did not do so in one direction. Justice
Velasco changed his vote from a vote to annul to a vote to uphold; Justice Villarama from
a vote to uphold to a vote to annul; and Justice Mendoza from a vote to annul to a vote to
uphold. Not one of the three flipped-flopped since they never changed their votes again
afterwards.
Notably, no one can dispute the right of a judge, acting on a motion for reconsideration,
to change his mind regarding the case. The rules are cognizant of the fact that human
judges could err and that it would merely be fair and right for them to correct their
perceived errors upon a motion for reconsideration. The three Justices who changed their
votes had the right to do so.
Five. Evidently, the voting was not a case of massive flip-flopping by the Justices of the
Court. Rather, it was a case of tiny shifts in the votes, occasioned by the consistently
slender margin that one view held over the other. This reflected the nearly even
soundness of the opposing advocacies of the contending sides.
Six. It did not help that in one year alone in 2009, seven Justices retired and were
replaced by an equal number. It is such that the resulting change in the combinations of
minds produced multiple shifts in the outcomes of the voting. No law or rule requires
succeeding Justices to adopt the views of their predecessors. Indeed, preordained
conformity is anathema to a democratic system.
The charge of flip-flopping by the Court or its members is unfair.
ROBERTO A. ABAD
Associate Justice

SUPREME COURT
Manila
EN BANC
G.R. No. 176951 June 28, 2011
League of Cities of the Philippines (LCP), represented by LCP National President Jerry P.
Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P.
Treñas, in his personal capacity as Taxpayer, Petitioners,
vs.
Commission on Elections; Municipality of Baybay, Province of Leyte; Municipality of
Bogo, Province of Cebu; Municipality of Catbalogan, Province of Western Samar;
Municipality of Tandag, Province of Surigao del Sur; Municipality of Borongan, Province
of Eastern Samar; and Municipality of Tayabas, Province of Quezon, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177499
vs.
Commission on Elections; Municipality of Lamitan, Province of Basilan; Municipality of
Tabuk, Province of Kalinga; Municipality of Bayugan, Province of Agusan del Sur;
Municipality of Batac, Province of Ilocos Norte; Municipality of Mati, Province of Davao
Oriental; and Municipality of Guihulngan, Province of Negros Oriental, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178056
vs.
Commission on Elections; Municipality of Cabadbaran, Province of Agusan del Norte;
Municipality of Carcar, Province of Cebu; Municipality of El Salvador, Province of
RESOLUTION
BERSAMIN, J.:
We hereby consider and resolve:– (a) the petitioners’ Motion for Leave to File Motion for
Reconsideration of the Resolution of 12 April 2011, attached to which is a Motion for
Reconsideration of the Resolution dated 12 April 2011 dated April 29, 2011 (Motion For
Reconsideration), praying that the resolution of April 12, 2011 be reconsidered and set aside; and
(b) the respondents’ Motion for Entry of Judgment dated May 9, 2011.
After thorough consideration of the incidents, we deny the Motion for Reconsideration and grant
the Motion for Entry of Judgment.
As its prayer for relief shows, the Motion for Reconsideration seeks the reconsideration, reversal,
or setting aside of the resolution of April 12, 2011.1 In turn, the resolution of April 12, 2011
denied the petitioners’ Ad Cautelam Motion for Reconsideration (of the Decision dated 15
February 2011).2 Clearly, the Motion for Reconsideration is really a second motion for
reconsideration in relation to the resolution dated February 15, 2011.3
Another indicium of its being a second motion for reconsideration is the fact that the Motion for
Reconsideration raises issues entirely identical to those the petitioners already raised in their Ad
Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011). The following
tabulation demonstrates the sameness of issues between the motions, to wit:
Motion for Ad Cautelam Motion for

Reconsideration Reconsideration (of the
of April 29, 2011 Decision dated 15
February 2011) dated
March 8, 2011
I. With due respect, II. The Resolution

neither the Rules of Contravenes The 1997
Court nor jurisprudence Rules Of Civil
allows the Honorable Procedure And
Court to take Relevant Supreme
cognizance of Court Issuances.
Respondent
Municipalities multiple
motions. By doing so,
the Honorable Court
therefore acted contrary
to the Rules of Court
and its internal
procedures.
II. Contrary to the I. The Honorable Court

ruling of the Honorable Has No Jurisdiction To
Court in the Assailed Promulgate The
Resolution, the Resolution Of 15
controversy involving February 2011, Because
the Sixteen (16) There is No Longer Any
Cityhood laws had long Actual Case Or
been resolved with Controversy To Settle.
finality; thus, the
principles of III. The Resolution
immutability of Undermines The Judicial
judgment and res System In Its Disregard
judicata are applicable Of The Principles Of
and operate to deprive Res Judicata And The
the Honorable Court of Doctrine of
jurisdiction. Immutability of Final
Judgments.
III. Contrary to the IV. The Resolution

Assailed Resolution of Erroneously Ruled That
the Honorable Court, The Sixteen (16)
the sixteen (16) Cityhood Bills Do Not
Cityhood laws neither Violate Article X,
repealed nor amended Sections 6 and 10 Of
the Local Government The 1987 Constitution.
Code. The Honorable
Court committed an V. The Sixteen (16)
error when it failed to Cityhood Laws Violate
rule in the Assailed The Equal Protection
Resolution that the Clause Of The
Sixteen (16) Cityhood Constitution And The
Laws violated Article Right Of Local
X, Sections 6 and 10 of Government Units To A
the Constitution. Just Share In The
National Taxes.
IV. With due respect,
the constitutionality of
R.A. 9009 is not an
issue in this case. It was
error on the part of the
Honorable Court to
consider the law
arbitrary.
That Issue No. IV (i.e., the constitutionality of Republic Act No. 9009) appears in the Motion for
Reconsideration but is not found in the Ad Cautelam Motion for Reconsideration (of the
Decision dated 15 February 2011) is of no consequence, for the constitutionality of R.A. No.
9009 is neither relevant nor decisive in this case, the reference to said legislative enactment being
only for purposes of discussion.
The Motion for Reconsideration, being a second motion for reconsideration, cannot be
entertained. As to that, Section 24 of Rule 51 of the Rules of Court is unqualified. The Court has
firmly held that a second motion for reconsideration is a prohibited pleading,5 and only for
extraordinarily persuasive reasons and only after an express leave has been first obtained may a
second motion for reconsideration be entertained.6 The restrictive policy against a second motion
for reconsideration has been re-emphasized in the recently promulgated Internal Rules of the
Supreme Court, whose Section 3, Rule 15 states:
Section 3. Second motion for reconsideration. – The Court shall not entertain a second
motion for reconsideration, and any exception to this rule can only be granted in the higher
interest of justice by the Court en banc upon a vote of at least two-thirds of its actual
membership. There is reconsideration "in the higher interest of justice" when the assailed
decision is not only legally erroneous, but is likewise patently unjust and potentially capable of
causing unwarranted and irremediable injury or damage to the parties. A second motion for
reconsideration can only be entertained before the ruling sought to be reconsidered
becomes final by operation of law or by the Court’s declaration.
In the Division, a vote of three Members shall be required to elevate a second motion for
reconsideration to the Court En Banc.
We observe, too, that the prescription that a second motion for reconsideration "can only be
entertained before the ruling sought to be reconsidered becomes final by operation of law or by
the Court’s declaration" even renders the denial of the petitioners’ Motion for Reconsideration
more compelling. As the resolution of April 12, 2011 bears out,7 the ruling sought to be
reconsidered became final by the Court’s express declaration. Consequently, the denial of the
Motion for Reconsideration is immediately warranted.
Still, the petitioners seem to contend that the Court had earlier entertained and granted the
respondents’ own second motion for reconsideration. There is no similarity between then and
now, however, for the Court en banc itself unanimously declared in the resolution of June 2,
2009 that the respondents’ second motion for reconsideration was "no longer a prohibited
pleading."8 No similar declaration favors the petitioners’ Motion for Reconsideration.
Finally, considering that the petitioners’ Motion for Reconsideration merely rehashes the issues
previously put forward, particularly in the Ad Cautelam Motion for Reconsideration (of the
Decision dated 15 February 2011), the Court, having already passed upon such issues with
finality, finds no need to discuss the issues again to avoid repetition and redundancy.
Accordingly, the finality of the resolutions upholding the constitutionality of the 16 Cityhood
Laws now absolutely warrants the granting of respondents’ Motion for Entry of Judgment.
WHEREFORE, the Court denies the petitioners’ Motion for Leave to File Motion for
Reconsideration of the Resolution of 12 April 2011 and the attached Motion for Reconsideration
of the Resolution of 12 April 2011; grants the respondents’ Motion for Entry of Judgment dated
May 9, 2011; and directs the Clerk of Court to forthwith issue the Entry of Judgment in this case.
No further pleadings or submissions by any party shall be entertained.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice



Associate Justice
CERTIFICATION
RENATO C. CORONA
Chief Justice
Footnotes
1
The prayer for relief of the Motion for Reconsideration states:
WHEREFORE, Petitioners most respectfully pray that the Resolution dated 12

April 2011 be forthwith RECONSIDERED, REVERSED or SET ASIDE.
2
The dispositive portion of the resolution of April 12, 2011 reads:
WHEREFORE, the Ad Cautelam Motion for Reconsideration (of the Decision

dated 15 February 2011) is denied with finality.
SO ORDERED.
3
The dispositive portion of the resolution of February 15, 2011 says:
WHEREFORE, the Motion for Reconsideration of the "Resolution" dated August

24, 2010, dated and filed on September 14, 2010 by respondents Municipality of
Baybay, et al. is GRANTED. The Resolution dated August 24, 2010 is
REVERSED and SET ASIDE. The Cityhood Laws—Republic Acts Nos. 9389,
9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435,
9436, and 9491—are declared CONSTITUTIONAL.
SO ORDERED.
4
Section 2. Second motion for reconsideration. – No second motion for reconsideration
of a judgment or final resolution by the same party shall be entertained.
5
Securities and Exchange Commission v. PICOP Resources, Inc., 566 SCRA 451 (2008);
APO Fruits corporation v. Land Bank of the Philippines, G.R. No. 164195, April 5,
2011; Ortigas and Company Limited Partnership v. Velasco, 254 SCRA 234.
6
Ortigas and Company Limited Partnership v. Velasco, supra.
7
Supra, note 2.
8
The resolution of June 2, 2009 pertinently declared:
xxx
In the present case, the Court voted on the second motion for reconsideration
filed by the respondent cities. In effect, the Court allowed the filing of the
second motion for reconsideration. Thus, the second motion for
reconsideration was no longer a prohibited pleading. However, for lack of the
required number of votes to overturn the 18 November 2009 Decision and 31
March 2009 Resolution, the Court denied the second motion for reconsideration
in its 28 April 2009 Resolution.
xxx
DISSENTING OPINION
CARPIO, J.:
The majority decision upheld the constitutionality of the Cityhood Laws because (1) of the
pendency of the conversion bills during the 11th Congress; and (2) compliance with the
requirements of the Local Government Code prior to its amendment by Republic Act No. 9009.
I reiterate my dissent.
I.
The Cityhood Laws violate Section 10, Article X of the Constitution.
Section 10, Article X of the 1987 Constitution provides:
Notably, each Cityhood Law provides in its Separability Clause that if any of its provisions is
"inconsistent with the Local Government Code," the other consistent provisions "shall
continue to be in full force and effect." The clear and inescapable implication is that any
provision in each Cityhood Law that is "inconsistent with the Local Government Code"
has no force and effect – in short, void and ineffective. Each Cityhood Law expressly and
unequivocally acknowledges the superiority of the Local Government Code, and that in case of
conflict, the Local Government Code shall prevail over the Cityhood Law. The clear intent
and express language of the Cityhood Laws is for these laws to conform to the Local
Government Code and not the other way around.
Contrary to the faulty conclusion of the majority, the Cityhood Laws do not amend the Local
Government Code. The Legislature never intended the Cityhood Laws to amend the Local
Government Code. Nowhere in the plain language of the Cityhood Laws can this interpretation
be discerned. Neither the title nor the body of the Cityhood Laws sustains such conclusion.
Simply put, there is absolutely nothing in the Cityhood Laws to support the majority decision
that the Cityhood Laws amended the Local Government Code.
II.
The Cityhood Laws violate the equal protection clause.
There is no substantial distinction between municipalities with pending cityhood bills in the 11th
Congress and municipalities that did not have pending bills. The mere pendency of a cityhood
bill in the 11th Congress is not a material difference to distinguish one municipality from another
for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress
does not affect or determine the level of income of a municipality. Municipalities with pending
cityhood bills in the 11th Congress might even have lower annual income than municipalities
that did not have pending cityhood bills. In short, the classification criterion − mere pendency of
a cityhood bill in the 11th Congress − is not rationally related to the purpose of the law which is
to prevent fiscally non-viable municipalities from converting into cities.
The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific
condition existing at the time of passage of RA 9009. That specific condition will never happen
again. This violates the requirement that a valid classification must not be limited to existing
conditions only.
In the same vein, the exemption provision in the Cityhood Laws gives the 16 municipalities a
unique advantage based on an arbitrary date − the filing of their cityhood bills before the end of
the 11th Congress – as against all other municipalities that want to convert into cities after the
effectivity of RA 9009.
Further, limiting the exemption only to the 16 municipalities violates the requirement that the
Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written
in Section 450 of the Local Government Code, is unconstitutional for violation of the equal
protection clause.
III.
Respondent municipalities must comply with the
P100 million income requirement under the prevailing LGC.
local government code." Therefore, respondent municipalities in order to validly convert into
cities must comply with the P100 million income requirement under the prevailing Local
Government Code, as amended by RA 9009, and not with the old P20 million income
requirement. Otherwise, such compliance with the old P20 million income requirement is void
for being unconstitutional.
There must be strict compliance with the express command of the Constitution that "no city x x
x shall be created x x x except in accordance with the criteria established in the local
government code." Substantial compliance is insufficient because it will discriminate against all
other cities that were created before and after the enactment of the Cityhood Laws in strict
compliance with the criteria in the Local Government Code, as amended by RA No. 9009. The
conversion of municipalities into new cities means an increase in the Internal Revenue Allotment
of the former municipalities and a corresponding decrease in the Internal Revenue Allotment of
all other existing cities. There must be strict, not only substantial, compliance with the
constitutional requirement because the economic lifeline of existing cities may be seriously
affected.
IV.
According to the majority, "the imposition of the income requirement of P100 million from local
sources under R.A. No. 9009 was arbitrary. x x x no research or empirical data buttressed the
figure. Nor was there proof that the proposal took into account the after-effects that were likely
to arise."
The Legislature, in enacting RA No. 9009, is not required by the Constitution to show the courts
data like inflation figures to support the increased income requirement. As long as the increased
income requirement is not impossible to comply, such increase is a policy determination
involving the wisdom of the law, which exclusively lies within the province of the Legislature.
When the Legislature enacts laws increasing taxes, tax rates, or capital requirements for
businesses, the Court cannot refuse to apply such laws on the ground that there is no economic
justification for such increases. Economic, political or social justifications for the enactment of
laws go into the wisdom of the law, outside the purview of judicial review. This Court cannot
refuse to apply the law unless the law violates a specific provision of the Constitution. There is
plainly nothing unconstitutional in increasing the income requirement from P20 million to P100
million because such increase does not violate any express or implied provision of the
Constitution.
V.
Failure of 59 existing cities to post P100 million annual income
does not render the P100 million income requirement
difficult to comply.
comply.
Moreover, as stated, the increased income requirement of P100 million is neither

unconstitutional nor unlawful. Unless the P100 million income requirement violates a provision
of the Constitution or a law, such requirement for the creation of a city must be strictly complied
with by local government units within or near the National Capital Region. The majority’s
VI.
Uniform and non-discriminatory criteria as prescribed in the Local Government Code are
essential to implement a fair and equitable distribution of national taxes to all local government
units. Section 6, Article X of the Constitution provides:
Local government units shall have a just share, as determined by law, in the national taxes
which shall be automatically released to them. (Emphasis supplied)
If the criteria in creating local government units are not uniform and discriminatory, there can be
no fair and just distribution of the national taxes to local government units.
A city with an annual income of only P20 million, all other criteria being equal, should not
receive the same share in national taxes as a city with an annual income of P100 million or more.
The criteria of land area, population and income, as prescribed in Section 450 of the Local
Government Code, must be strictly followed because such criteria, prescribed by law, are
material in determining the "just share" of local government units in national taxes. Since the
Cityhood Laws do not follow the income criterion in Section 450 of the Local Government
Code, they prevent the fair and just distribution of the Internal Revenue Allotment in violation of
Section 6, Article X of the Constitution.
As pointed out by petitioners, "respondent municipalities have a total population equivalent to

that of Davao City only, or around 1.3 million people. Yet, the IRA that pertains to the 16
municipalities (P4,019,776,072) is more than double that for Davao City (P1,874,175,271). x x x
As a result, the per capita IRA alloted for the individual denizen of Davao is even less than half
of the average per capita IRA of the inhabitants of the sixteen (16) municipalities (P1,374.70
divided by P3,117.24)."
This indisputable fact vividly reveals the economic inequity that will inevitably result from the
unjust allocation of the IRA as a consequence of the conversion of respondent municipalities into
cities. Clearly, if the existing cities’ share in the Internal Revenue Allotment is unreasonably
reduced, it is possible, even expected, that these cities may have to lay-off workers and abandon
projects, greatly hampering, or worse paralyzing, the delivery of much needed public services in
their respective territorial jurisdictions.
VII.
Conclusion
The Constitution expressly requires Congress to stipulate in the Local Government Code itself
all the criteria necessary for the creation of a city, including the conversion of a municipality into
a city. To avoid discrimination and ensure uniformity and equality, such criteria cannot be
embodied in any other law except the Local Government Code. In this case, the Cityhood Laws,
which are unmistakably laws other than the Local Government Code, provide an exemption from
the increased income requirement for the creation of cities under Section 450 of the Local
Government Code, as amended by RA No. 9009. Clearly, the Cityhood Laws contravene the
letter and intent of Section 10, Article X of the Constitution. In addition, the Cityhood Laws
violate the equal protection clause and Section 6, Article X of the Constitution on the fair and
equitable distribution of national taxes to all local government units. Without any doubt, the
Cityhood Laws must be striken down for being unconstitutional.
Philippines.
ANTONIO T. CARPIO
Associate Justice
Footnote
1
DISSENTING OPINION
SERENO, J.:
"If changing judges changes laws, it is not even clear what law is."
- Richard A. Posner1
I maintain my dissent that the sixteen Cityhood Laws are unconstitutional. In questioning the
Court’s latest Resolution,2 petitioners have raised concerns over the "highly irregular and
unprecedented" acts of entertaining several motions for reconsideration.3 In response to these
concerns, I wish to expound on the effects of the "flip-flopping" decisions on the Court’s role in
our democratic system and its decision-making process, in order that it may "serve to bulwark
the fortifications of an orderly government of laws."4
Our system of democracy is committed irrevocably to a government of laws,5 and not of men.6
Laws give witness to society’s moral values7 and are the depositories of what the sovereign as a
whole has agreed to uphold as the minimum standards of conduct that will govern relationships
and transactions within that society. In a representative democracy, the Filipino people, through
their elected representatives, deliberate, distill and make moral judgments, which are crystallized
into written laws that are made public, accessible and binding to all.8 Perhaps no characteristic of
an organized and cohesive society is more fundamental than its erection and enforcement of a
system of rules defining the various rights and duties of its members, enabling them to govern
their affairs and definitively settle their differences in an orderly, predictable manner.9
Obedience to the rule of law forms the bedrock of our system of justice.10 Once the sovereign
people’s "soft" moral choices are hardened through the constitutionally mandated legislative
process,11 statutory laws perform an equalizing function of imposing a knowable standard of
conduct or behavior to which all members of society must conform to – a social contract which
everyone regardless of class, sex or religion is bound.12 Legislative enactments are ordinarily
prospective and general in character insofar as they prescribe limitations on an individual’s
future conduct. Under the rule of law,13 ordinary people can reasonably assume that another
person’s future conduct will be in observance of the laws and can conceivably expect that any
deviation therefrom will be punished accordingly by responsible authorities. Thus, written
constitutions and statutory laws allow citizens a minimum confidence in a world of uncertainty:
Through constitutionalism we placed limits on both our political institutions and ourselves,
hoping that democracies, historically always turbulent, chaotic, and even despotic, might now
become restrained, principled, thoughtful and just. So we bound ourselves over to a law that we
made and promised to keep. And though a government of laws did not displace governance by
men, it did mean that now men, democratic men, would try to live by their word.14
As man-made creations, however, laws are not always entirely encompassing, as future
conditions may change – conditions that could not have been perceived or accounted for by the
legislators. Actual situations may arise between two conflicting claims by specific parties with
differing interpretations of the law. In those instances in which a gray area or an unintended gap
exists in the implementation or execution of laws, the judicial department is charged with the
duty of determining the limitations that the law places upon all actions of individuals.15 Hence,
the court’s primary adjudicatory function is to mark the metes and bounds of the law in specific
areas of application, as well as to pass judgment on the competing positions in a case properly
brought before it.
The Court not only functions to adjudicate rights among the parties, but also serves the purpose
of a supreme tribunal of last resort that establishes uniform rules of civil justice.16 Jurisprudence
"narrows the field of uncertainty"17 in the application of an unclear area of the law. The certainty
of judicial pronouncement lends respect for and adherence to the rule of law – "the idea that all
citizens and all organs of government are bound by rules fixed in advance, which make it
possible to foresee how the coercive powers of government will be used, whether in its own
interests or in aid of citizens who call on them, in particular circumstances."18 The Court’s
historic role of pronouncing what the law is between the parties19 is the cornerstone of a
government of laws, and not of men.20 Justice Antonin Scalia of the United States Supreme
Court expounded on the objectives of uniformity and predictability of judicial decisions, to wit:
This last point suggests another obvious advantage of establishing as soon as possible a clear,
general principle of decision: predictability. Even in simpler times uncertainty has been regarded
as incompatible with the Rule of Law. Rudimentary justice requires that those subject to the law
must have the means of knowing what it prescribes. It is said that one of emperor Nero's nasty
practices was to post his edicts high on the columns so that they would be harder to read and
easier to transgress. As laws have become more numerous, and as people have become
increasingly ready to punish their adversaries in the courts, we can less and less afford protracted
uncertainty regarding what the law may mean. Predictability, or as Llewellyn put it,
"reckonability," is a needful characteristic of any law worthy of the name. There are times when
even a bad rule is better than no rule at all.21 (Emphasis supplied)
Certainty and "reckonability" in the law are the major objectives of the legal system, and judicial
decisions serve the important purpose of providing stability to the law and to the society
governed by that law.22 If we are to subscribe to Justice Oliver Wendell Holmes’ theory of a bad
man,23 then law provides reasonable predictability in the consequences of one’s actions relative
to the law, if performed in a just and orderly society. As judicial decisions form part of the law of
the land,24 there is a strong public interest in stability and in the orderly conduct of our affairs, an
end served by a consistent course of adjudication.25 Thus, once a court has decided upon a rule of
law, "that decision should continue to govern the same issues in subsequent stages" of the same
case26 and thus offers to the people some measure of conviction about the legal effects of their
actions. In the absence of extraordinary circumstances, courts should be loathe to revisit prior
decisions.27
In the instant case, the public confusion, sown by the pendulum swing of the Court’s decisions,
has yielded unpredictability in the judicial decision-making process and has spawned untold
consequences upon the public’s confidence in the enduring stability of the rule of law in our
jurisdiction.
The Court has been entrusted by the sovereign with the duty of voicing out and sharpening with
finality society’s collective ideals in its written decisions. Yet, if cases are litigated in perpetuity,
and judgments are clouded with continuous uncertainty, the public’s confidence in the stability
of judicial precedents promulgated by the Court would be greatly diminished. In this case, the
Court has reviewed and reconsidered, no less than five times already,28 the constitutionality of
the sixteen Cityhood Laws.29 During this time, the public has been made to endure an inordinate
degree of indecision that has disturbed the conduct of local government affairs with respect not
only to the municipalities asking to become cities, but also with respect to cities genuinely
fearful of the destruction of the standards for the creation of cities and the correlative diminution
of the internal revenue allotments of existing cities. The Court’s commitment to provide constant
and steadfast rules on the creation of cities has been inevitably weakened by the "flip-flopping"
in the case that has opened the doors to rabid criticisms of the Court’s failure to abide by its own
internal rules and, thus, diminishing reliance on the certainty of its decisions.
To be sure, the Court is not precluded from rectifying errors of judgment if blind and stubborn
adherence to the doctrine of immutability30 would involve the sacrifice of justice for
technicality.31 The Court has previously provided for exceptions to the rule on immutability of
final judgments, as follows: (1) the correction of clerical errors;32 (2) nunc pro tunc entries which
cause no prejudice to any party;33 (3) void judgments;34 and (4) supervening events.35 As
exceptions to the general rule, their application to instances wherein a review of a final and
executory decision is called are to be strictly construed.36 No convincing argument or
extraordinary circumstance has been raised to justify and support the application of any of these
exceptions to warrant a reversal of the Court’s First Decision. Reversing previous, final, and
executory decisions are to be done only under severely limited circumstances. Although new and
unforeseen circumstances may arise in the future to justify a review of an established legal
principle in a separate and distinct case, the extension of a principle must be dealt with
exceptionally and cautiously.
Undeniably, the Court in the past has overturned prior decisions even on a second or third
motion for reconsideration and recalled entries of judgment on the ground of substantial interest
of justice and special and compelling reasons.37 The Court bows to "the lessons of experience
and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the
physical sciences, is appropriate also in the judicial function."38 Notable reversals in recent
memory include the cases involving the request for extradition of Mark Jimenez,39 the
constitutionality of the Philippine Mining Act of 1995,40 the land title covering the Piedad Estate
in Quezon City,41 the just compensation due to Apo Fruits Corporation,42 and the "deemed
resigned" provision for public appointive officials in the recent May 2010 election.43 Although
no prohibition exists that would prevent this Court from changing its mind in the light of
compelling reasons and in the interest of substantial justice as abovedemonstrated, extreme
retrospect and caution must accompany such review.
In the instant case, there is no substantial interest of justice or compelling reason that would
warrant the reversal of the First Decision declaring the Cityhood Laws unconstitutional. There is
no injustice in preventing the conversion of the sixteen municipalities into cities at this point in
time. In fact, justice is more equitably dispensed by the stringent application of the current
legislative criteria under the Local Government Code (LGC),44 as amended by Republic Act No.
9009 (RA 9009), for creating cities without distinction or exception. It must be remembered that
the declaration of unconstitutionality is not an absolute ban on these municipalities prohibiting
them from pursuing cityhood in the future once they are able to achieve the PhP100,000,000
income requirement under RA 9009.45 Alternatively, their congressional representatives can also
press for another amendatory law of the LGC that would include an explicit exception to the
income requirement for municipalities with pending cityhood bills prior to the enactment of RA
9009. The route purportedly chosen by Congress to indirectly amend the LGC through the
exemption of annual income requirements in the Cityhood Laws is improper. If Congress
believes that the minority’s construction of its intention in increasing the annual income
requirement is erroneous, then the legislature can show its disapproval by directly enacting
amendatory legislation of the LGC. In both cases, the remedy available to the sixteen
municipalities is not with the Court, but with the legislature, which is constitutionally
empowered to determine the standards for the creation of a local government unit. The reasoning
and substantial justice arguments expounded to reverse the initial finding of the Court that the
Cityhood Laws are unconstitutional are poorly founded.
The LGC is a distinctly normative law that regulates the legislative power to create cities and
establishes the standards by which the power is exercised. Unlike other statutes that prohibit
undesirable conduct of ordinary citizens and are ends by themselves, the LGC prescribes the
means by which congressional power is to be exercised and local government units are brought
into legal existence. Its purpose is to avoid the arbitrary and random creation of provinces, cities
and municipalities. By encapsulating the criteria for cityhood in the LGC, Congress provided
objective, equally applicable and fairly ascertainable standards and reduced the emphasis on
currying political favor from its members to approvingly act on the proposed cityhood law.
Otherwise, cities chartered under a previous Congress can be unmade, at a whim, by a
subsequent Congress, regardless of its compliance with the LGC’s requirements. Fairness and
equity demand that the criteria established by the LGC be faithfully and strictly enforced, most
especially by Congress whose power is the actual subject of legislative delimitation.
In granting it the power to fix the criteria for the creation of a city, the Constitution, of course,
did not preclude Congress from revising the standards imposed under the LGC. Congress shall
enjoy the freedom to reconsider the minimum standards under the LGC, if future circumstances
call for it. However, the method of revising the criteria must be directly done through an
amendatory law of the LGC (such as RA 9009), and not through the indirect route of creating
cities and exempting their compliance with the established and prevailing standards. By
indiscriminately carving out exemptions in the charter laws themselves, Congress enfeebled the
normative function of the LGC on the legislative power to create cities. Taking the argument to
the extreme, a single barangay now has the chance of being chartered as a component city
without compliance with the income, territorial or population requirements under the LGC, for as
long as enough Congressional support is mustered to push for its exemption – not in a general
amendatory law, but through its own specific legislative charter. The selective disregard of the
norms under the LGC in favor of some municipalities cannot be sanctioned in a system where
the rule of law remains dominant. Unless prevented by the Court, Congress will now be
emboldened to charter new cities wholesale and arbitrarily relax the stringent standards under the
LGC, which it imposed on itself.
It must be emphasized that no inconsistency arises from the present minority’s continued
participation in the disposition of the second or subsequent motions for reconsideration of the
parties with the avowed purpose of predictability of judicial pronouncements. The reiteration of
the minority’s position that the Cityhood Laws are unconstitutional is an expression that none of
the "new" or rehashed arguments in the subsequent motions have merited a change in their stand
and appreciation of the facts and the law. For the minority to abandon their involvement from the
proceedings in a mechanical adherence to the rule that the second and subsequent motions for
reconsideration are prohibited pleadings that do not warrant the Court’s attention is to capitulate
to the sixteen municipalities’ abhorrent strategy of insistent prayer for review of re-hashed
arguments, already passed on, repeatedly.
If stability in the Court’s decisions46 is to be maintained, then parties should not be encouraged
to tirelessly seek reexamination of determined principles and speculate on the fluctuation of the
law with every change of its expounders.47 In Clavano v. Housing and Land Use Regulatory
Board, the Court explained that:
"The tendency of the law," observes Justice Oliver Wendell Holmes, "must always be to narrow
the field of uncertainty." And so was the judicial process conceived to bring about the just
termination of legal disputes. The mechanisms for this objective are manifold but the essential
precept underlying them is the immutability of final and executory judgments.
This fundamental principle in part affirms our recognition of instances when disputes are
inadequately presented before the courts and addresses situations when parties fail to unravel
what they truly desire and thus fail to set forth all the claims which they want the courts to
resolve. It is only when judgments have become final and executory, or even when already
deemed satisfied, that our negligent litigants belatedly come forth to pray for more relief. The
distilled wisdom and genius of the ages would tell us to reject their pleas, for the loss to litigants
in particular and to society in general would in the long run be greater than the gain if courts and
judges were clothed with power to revise their final decisions at will.48 (Emphasis supplied)
Unlike that of the other two political branches whose mandates are regularly renewed through
direct election, the Court’s legitimacy must be painstakingly earned with every decision that puts
voice to the cherished value judgments of the sovereign. The judicial function in an organized
and cohesive society governed by the rule of law is placed in serious peril if the people cannot
rely on the finality of court decisions to regulate their affairs. There is no reason for the Court to
bend over backwards to accommodate the parties’ requests for reconsideration, yet again, of the
unconstitutionality of the sixteen Cityhood Laws as borne by the First Decision, especially if the
result would lead to the fracturing of central tenets of the justice system. The people’s sense of
an orderly government will find it unacceptable if the Supreme Court, which is tasked to express
enduring values through its judicial pronouncements, is founded on sand, easily shifting with the
changing tides.
The legal process of creating cities – as enacted and later amended by the legislature,
implemented by the executive, and interpreted by the judiciary –serves as the people’s North
Star: certain, stable and predictable. Absent the three branches’ adherence to the rule of law, our
society would denigrate into uncertainty, instability and even anarchy. Indeed, the law is the only
supreme power in our system of government, and every man who by accepting office
participates in its functions is only the more strongly bound to submit to that supremacy and to
observe the limitations it imposes upon the exercise of the authority that it gives.49 No public
officer is held to these highest of normative standards than those whose duties are to adjudicate
the rights of the people and to articulate on enduring principles of law applicable to all.
As Justice Robert Jackson eloquently expressed,50 the Supreme Court is not final because it is
infallible; it is infallible because it is final. And because its decisions are final, even if faulty,
there must be every energy expended to ensure that the faulty decisions are few and far between.
The integrity of the judiciary rests not only upon the fact that it is able to administer justice, but
also upon the perception and confidence of the community that the people who run the system
have done justice.51
The determination of the correctness of a judicial decision turns on far more than its outcome.52
Rather, it turns on whether its outcome evolved from principles of judicial methodology, since
the judiciary’s function is not to bring about some desired state of affairs, but to find objectively
the right decision by adhering to the established general system of rules.53
What we are dealing with in this case is no longer limited to the question of constitutionality of
Cityhood Laws; we are also confronted with the question of certainty and predictability in the
decisions of the Court under a democratic system governed by law and rules and its ability to
uphold the Constitution and normative legislation such as the LGC.
The public has unduly suffered from the repeated "flip-flopping" in this case, especially since it
comes from the branch of government tasked to embody in a clear form enduring rules of civil
justice that are to govern them. In expressing these truths, I echo the sentiment of a judicial
colleague from a foreign jurisdiction who once said, "I write these words, not as a jeremiad,54 but
in the belief that unless the courts adhere to the guidance of fixed principles, we will soon bring
objective law to its sepulcher."55

Associate Justice
Footnotes
1
Posner, Richard A., How Judges Think (2008), at 1.
2
Resolution dated 12 April 2011.
3
Petitioners’ Motion for Reconsideration dated 29 April 2011, para. 1.6, at 7.
4
"In concluding this tedious and disagreeable task, may we not be permitted to express
the hope that this decision may serve to bulwark the fortifications of an orderly
government of laws and to protect individual liberty from illegal encroachment."
(Villavicencio v. Lukban, G. R. No. 14639, 25 March 1919, 39 Phil. 778; emphasis
supplied)
5
Dissenting Opinion, Justice Paras, Austria v. Amante, G. R. No. L-959, 09 January
1948, 79 Phil. 780.
6
"The Government of the Philippine Islands is essentially a Government of laws and not
of men." (In Re: Mulloch Dick, G. R. No. 13862, 16 April 1918, 38 Phil. 41)
7
"The laws enacted become expressions of public morality. As Justice Holmes put it,
‘(t)he law is the witness and deposit of our moral life.’ ‘In a liberal democracy, the law
reflects social morality over a period of time.’ Occasionally though, a disproportionate
political influence might cause a law to be enacted at odds with public morality or
legislature might fail to repeal laws embodying outdated traditional moral views. Law has
also been defined as ‘something men create in their best moments to protect themselves
in their worst moments.’ … Law deals with the minimum standards of human conduct
while morality is concerned with the maximum. … Law also serves as ‘a helpful starting
point for thinking about a proper or ideal public morality for a society’ in pursuit of moral
progress." (Estrada v. Escritor, A.M. No. P-02-1651, 04 August 2003, 408 SCRA 1)
8
"In a democracy, this common agreement on political and moral ideas is distilled in the
public square. Where citizens are free, every opinion, every prejudice, every aspiration,
and every moral discernment has access to the public square where people deliberate the
order of their life together. Citizens are the bearers of opinion, including opinion shaped
by, or espousing religious belief, and these citizens have equal access to the public
square. In this representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation. Through a
constitutionally designed process, the people deliberate and decide. Majority rule is a
necessary principle in this democratic governance. Thus, when public deliberation on
moral judgments is finally crystallized into law, the laws will largely reflect the beliefs
and preferences of the majority, i.e., the mainstream or median groups." (Estrada v.
Escritor, id.)
9
Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).
10
People v. Veneracion, G. R. No. 119987-88, 12 October 1995, 319 Phil. 364.
11
Constitution, Art. VI, Sec. 26 and 27.
12
"For when any number of men have, by the consent of every individual, made a
community, they have thereby made that community one body, with a power to act as
one body, which is only by the will and determination of the majority: for that which acts
any community, being only the consent of the individuals of it, and it being necessary to
that which is one body to move one way; it is necessary the body should move that way
whither the greater force carries it, which is the consent of the majority: or else it is
impossible it should act or continue one body, one community, which the consent of
every individual that united into it, agreed that it should; and so every one is bound by
that consent to be concluded by the majority. And therefore we see, that in assemblies,
empowered to act by positive laws, where no number is set by that positive law which
empowers them, the act of the majority passes for the act of the whole, and of course
determines, as having, by the law of nature and reason, the power of the whole." (Locke,
John. Second Treatise on Civil Government, cited in footnote no. 47 of Chief Justice
Reynato Puno’s Concurring Opinion in Province of North Cotabato v. GRP Peace Panel
on Ancestral Domain, 568 SCRA 402)
13
The rule of law has likewise been described as "a defeasible entitlement of persons to
have their behavior governed by laws that are publicly fixed in advance." (Stephen R.
Munzer, A Theory of Retroactive Legislation, 61 Tex. L. Rev. 425 [1982] at 438)
14
Separate Opinion, Justice Santiago Kapunan, Estrada v. Desierto, G. R. No. 146710-15
& 146738, 02 March 2001, 356 SCRA 108.
15
Separate Opinion, Justice Reynato Puno in IBP v. Zamora, G. R. No. 141284, 15
August 2000, 338 SCRA 81.
16
"… Laws are a dead letter without courts to expound and define their true meaning and
operation. … Their true import, as far as respects individuals, must, like all other laws, be
ascertained by judicial determinations. To produce uniformity in these determinations,
they ought to be submitted, in the last resort, to one supreme tribunal. … There are
endless diversities in the opinions of men. We often see not only different courts but the
judges of the same court differing from each other. To avoid the confusion which would
unavoidably result from the contradictory decisions of a number of independent
judicatories, all nations have found it necessary to establish one court paramount to the
rest, possessing a general superintendence, and authorized to settle and declare in the last
resort a uniform rule of civil justice." (Alexander Hamilton, Federalist Paper No. 22;
emphasis supplied)
17
"Still, the tendency of the law must always be to narrow the field of uncertainty."
(Justice Oliver Wendell Holmes, The Common Law at 53)
18
J. D. Heydon, Limits to the Powers of Ultimate Appellate Courts, L.Q.R. 2006,
122(JUL), 399-425, 404, citing Planned Parenthood of South Eastern Pennsylvania v
Casey,505 U.S. 833, 854 (1992).
19
Abueva v. Wood, G. R. No. 21327, 14 January 1924, 45 Phil. 612.
20
Separate Opinion, Justice Reynato Puno in IBP v. Zamora, supra. Note 12.
21
Justice Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175
(1989) at 1179.
22
Dissenting Opinion, Justice Conchita Carpio-Morales, La Bugal B’laan Tribal
Association, et al., v. Ramos, G. R. No. 127882, 01 February 2005.
23
"If you want to know the law and nothing else, you must look at it as a bad man, who
cares only for the material consequences which such knowledge enables him to predict,
not as a good one, who finds his reasons for conduct, whether inside the law or outside of
it, in the vaguer sanctions of conscience." (Justice Oliver Wendell Holmes, Jr., The Path
of the Law, 10 Harv. L. R. 457 [1897])
24
Judicial decisions applying or interpreting the laws or the Constitution shall form a part
of the legal system of the Philippines. (Civil Code, Art. 8; Floresca v. Philex Mining
Corporation, G. R. No. L-30642, 30 April 1985, 136 SCRA 141)
25
Concurring Opinion, Justice John Paul Stevens, Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747, 780-781, 106 S.Ct. 2169 (1986)
26
Jano Justice Systems, Inc., v. Burton, F.Supp.2d, 2010 WL 2012941 (C.D.Ill.) (2010),
citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166,
100 L.Ed.2d 811 (1988).
27
Jano Justice Systems, Inc., v. Burton, id.
28
In a little over three years, the Court’s decisions in the instant case have swung like a
pendulum from unconstitutionality to validity. Beginning with the First Decision dated 18
November 2008, the Court initially found the subject sixteen Cityhood Laws as
unconstitutional, but reversed itself in the Second Decision dated 21 December 2009,
where the laws were declared valid. However, the Court had a change of heart and
reinstated its earlier finding of unconstitutionality in the Third Decision (SC Resolution
dated 24 August 2010, penned by Justice Antonio Carpio), but less than a year later, it
overturned the last ruling by again declaring the Cityhood Laws constitutional in the
Fourth Decision (SC Resolution dated 15 February 2011, penned by Justice Lucas
Bersamin). The Fifth Decision and latest Resolution of the Court denied with finality the
Ad Cautelam Motion for Reconsideration and reiterated that the Cityhood Laws were
constitutional (SC Resolution dated 12 April 2011 penned again by Justice Bersamin)
29
The sixteen Cityhood Laws consist of Republic Acts Nos. 9389-94, 9398, 9404-05,
9407-09, 9434-36 and 9491.
30
"A decision that has acquired finality becomes immutable and unalterable and may no
longer be modified in any respect, even if the modification is meant to correct erroneous
conclusions of fact or law and whether it will be made by the court that rendered it or by
the highest court of the land." (Labao v. Flores, G. R. No. 187984, 15 November 2010,
634 SCRA 723, citing Peña v. Government Service Insurance System, G.R. No. 159520,
19 September 2006, 502 SCRA 383, 404)
31
Republic v. Ballocanag, G. R. No. 163794, 28 November 2008, 572 SCRA 436, citing
Heirs of Maura So v. Obliosca, G. R. No. 147082, 28 January 2008, 542 SCRA 406, 421-
422.
32
FGU Insurance Corporation v. RTC of Makati, G. R. No. 161282, 23 February 2011,
citing Villa v. GSIS, G. R. No. 174642, 31 October 2009.
33
"The object of a judgment nunc pro tunc is not the rendering of a new judgment and
the ascertainment and determination of new rights, but is one placing in proper form on
the record, the judgment that had been previously rendered, to make it speak the truth, so
as to make it show what the judicial action really was, not to correct judicial errors, such
as to render a judgment which the court ought to have rendered, in place of the one it did
erroneously render, nor to supply nonaction by the court, however erroneous the
judgment may have been." (Mocorro v. Ramirez, G. R. No. 178366, 28 July 2008, 560
SCRA 362, citing Briones-Vasquez v. Court of Appeals, 450 SCRA 482, 492 [2005])
34
"Void judgments may be classified into two groups: those rendered by a court without
jurisdiction to do so and those obtained by fraud or collusion." (Legarda v. Court of
Appeals, G.R. No. 94457, 16 October 1997, 280 SCRA 642)
35
"One of the exceptions to the principle of immutability of final judgments is the
existence of supervening events. Supervening events refer to facts which transpire after
judgment has become final and executory or to new circumstances which developed after
the judgment has acquired finality, including matters which the parties were not aware of
prior to or during the trial as they were not yet in existence at that time." (Natalia Realty,
Inc. v. Court of Appeals, G. R. No. 126462, 12 November 2002, 391 SCRA 370)
36
"Under the rules of statutory construction, exceptions, as a general rule, should be
strictly but reasonably construed." (Commissioner of Internal Revenue v. CA, G. R. No.
107135, 23 February 1999, 303 SCRA 508)
37
"… In the past, however, we have recognized exceptions to this rule by reversing
judgments and recalling their entries in the interest of substantial justice and where
special and compelling reasons called for such actions."
"Notably, in San Miguel Corporation v. National Labor Relations Commission,

Galman v. Sandiganbayan, Philippine Consumers Foundation v. National
Telecommunications Commission, and Republic v. de los Angeles, we reversed
our judgment on the second motion for reconsideration, while in Vir-Jen Shipping
and Marine Services v. National Labor Relations Commission, we did so on a
third motion for reconsideration. In Cathay Pacific v. Romillo and Cosio v. de
Rama, we modified or amended our ruling on the second motion for
reconsideration. More recently, in the cases of Muñoz v. Court of Appeals, Tan
Tiac Chiong v. Hon. Cosico, Manotok IV v. Barque, and Barnes v. Padilla, we
recalled entries of judgment after finding that doing so was in the interest of
substantial justice." (Apo Fruits Corporation v. Landbank of the Philippines, G. R.
No. 164195, 12 October 2010, 632 SCRA 727)
38
Dissenting Opinion, Justice Louis Brandeis, Burnet v. Coronado Oil & Gas, Co., 285
U.S. 393, 407-408 (1932).
39
In Secretary of Justice v. Lantion, G. R. No. 139645, the Court first ordered the
Secretary of Justice to furnish private respondent Mark Jimenez, copies of the extradition
request and its supporting papers, and to give him a reasonable period within which to
file his comment with supporting evidence. (Decision dated 18 January 2000) The Court
subsequently reversed itself and declared that private respondent is bereft of the right to
notice and hearing during the evaluation stage of the extradition process. (Decision 17
October 2000)
40
In La Bugal B’laan Tribal Association v. Ramos, G. R. No. 127882, the Court first
declared some of the provisions of Republic Act No. 7942 (Philippine Mining Act of
1995) unconstitutional and void (Decision dated 27 January 2004); but on a motion for
reconsideration the ruling was later reversed and the mining law was declared
constitutional (Resolution dated 01 December 2004).
41
In Heirs of Manotok v. Barque, G. R. No. 162335 & 162605, the Court’s First Division
initially affirmed the cancellation of the Manotok title over the friar land and ordered that
the title be reconstituted in favor of the Homer L. Barque, Sr. (Decision dated 12
December 2005) After the Decision was recalled and the case remanded to the Court of
Appeals for reception of evidence (Resolution dated 18 December 2008), the Court en
banc nullified the titles of Manotok and Barque and declared the land as legally
belonging to the national government. (Decision dated 24 August 2010)
42
In Apo Fruits Corporation v. Landbank of the Philippines, G. R. No. 164105, the
Court’s Third Division ordered Landbank to pay Apo Fruits Corporation and Hijo
Plantation to pay P1,383,179,000 with 12% legal interest as just compensation for the
two companies’ expropriated lands. (Decision dated 06 February 2007) Landbank’s
motion for reconsideration was partially granted and the award of legal interest was
deleted (Decision dated 19 December 2007 and 30 April 2008), which was affirmed by
the Court en banc. (Decision dated 04 December 2009) However, the award of legal
interest was reinstated later on. (Decision dated 12 October 2010)
43
In Quinto v. COMELEC, G. R. No. 189698, the Court first declared unconstitutional
the provision in the Omnibus Election Code, as amended by Republic Act No. 9369,
considering public appointive officials as ipso facto resigned from the filing of their
certificate of candidacy. (Decision 01 December 2009) The Court again reversed itself
and declared the same provision as "not unconstitutional." (Resolution dated 22 February
2010)
44
Republic Act No. 7160, Sec. 450.
45
"Requisites for Creation. — (a) A municipality or a cluster of barangays may be
converted into a component city if it has a locally generated average annual income, as
certified by the Department of Finance, of at least One hundred million pesos
(P100,000,000.00) for the last two (2) consecutive years based on 2000 constant prices,
and if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100) square kilometers, as

certified by the Land Management Bureau; or
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants,
as certified by the National Statistics Office.
xxx xxx xxx
(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, transfers, and non-recurring income." (RA 9009,
Sec. 1, amending Sec. 450 of the LGC; emphasis supplied)
46
Concurring Opinion, Justice Romeo Callejo, Sr., Lambino v. COMELEC, G. R. No.
174153, 25 October 2006, 505 SCRA 160, citing London Street Tramways Co., Ltd. v.
London County Council, [1898] A.C. 375, in COOLEY, A TREATISE ON THE
CONSTITUTIONAL LIMITATIONS 117-118.
47
Concurring Opinion, Justice Romeo Callejo, Sr., Lambino v. COMELEC, supra.
48
G.R. No. 143781, 27 February 2002, 378 SCRA 172.
49
U. S. v. Lee, 106 US 196, 261 (1882)
50
"Rightly or wrongly, the belief is widely held by the practicing profession that this
Court no longer respects impersonal rules of law but is guided in these matters by
personal impressions which from time to time may be shared by a majority of Justices.
Whatever has been intended, this Court also has generated an impression in much of the
judiciary that regard for precedents and authorities is obsolete, that words no longer mean
what they have always meant to the profession, that the law knows no fixed principles.
…"
"… Whenever decisions of one court are reviewed by another, a percentage of

them are reversed. That reflects a difference in outlook normally found between
personnel comprising different courts. However, reversal by a higher court is not
proof that justice is thereby better done. There is no doubt that if there were a
super-Supreme Court, a substantial proportion of our reversals of state courts
would also be reversed. We are not final because we are infallible, but we are
infallible only because we are final." (Concurring Opinion of Justice Robert
Jackson, Brown v. Allen, 344 U.S. 443 [1953]; emphasis supplied).
51
Spouses Sadik v. Casar, A. M. No. MTJ-95-1053, 02 January 1997, 266 SCRA 1,
citing Talens-Dabon v. Arceo, Administrative Matter No. RTJ-96-1336, 25 July 1996.
52
53
Association, et al., v. Ramos, id.
54
A lamenting and denunciatory complaint; a doleful story; or a dolorous tirade.
(Webster’s Third New International Dictionary [Merriam Webster 1993] at 1213)
55
Dissenting Opinion, Circuit Judge Tam, In Re: Estate of Burrogh, 475 F.2d 370, 154
U.S.App.D.C. 259 (1973).
SUPREME COURT
Manila
EN BANC
A.M. No. 2010-11-SC March 15, 2011
RE: EMPLOYEES INCURRING HABITUAL TARDINESS IN THE SECOND

SEMESTER OF 2009
DECISION
BERSAMIN, J.:
Employees of the Judiciary should observe punctuality in reporting to work. Tardiness, if

habitual, prejudices the efficiency of the service being rendered by the Judiciary to the people,
and cannot be tolerated. Thus, we sanction certain administrative employees of the Court for
their habitual tardiness.
This administrative matter emanated from the reports dated June 16, 2010 and June 17, 2010
made by the Leave Division under the Office of Administrative Services (OAS) to the
Complaints and Investigation Division, also under the OAS, to the effect that the following
employees had been habitually tardy in the second semester of 2009, viz:
No. of times Reported Tardy

Names for the 2nd Semester of 2009
Jul Aug Sept Oct Nov Dec
1. Mr. Marc Reman A. Bessat
Computer Maintenance
Technologist III 10 10
Systems Planning & Project
Evaluation Division, MISO
2. Mr. Melquiades A. Briones
Clerk III
14 15
Office of the Clerk of Court,
En Banc
3. Mr. Benjie B. Cajandig
Judicial Staff Assistant II
Mediation Planning & 12 10 12
Research Division
PHILJA
4. Ms. Sherrylyn A. Nate-
10 10
Cruz
Fiscal Clerk II
Finance Division, FMBO
5. Mr. Florentino A. Pascual
Human Resource
Management Officer II 10 11
Personnel Division, OAS-
OCA
6. Mr. Albert C. Semilla
Computer Operator III
12 10
Records Division
Office of the Chief Attorney
7. Ms. Jolina Pauline T.
Tuazon
11 11
Executive Assistant II
Publication Division, PIO
8. Mary Jingle M. Villocero
Court Stenographer III
Judicial Supervision & 11 10
Monitoring Division, CMO-
OCA
On July 5, 2010, the OAS directed the concerned employees to explain in writing why no
administrative disciplinary action should be taken against them for their habitual tardiness during
the covered period, which habitual tardiness was in violation of Civil Service Commission (CSC)
Memorandum Circular No. 04, Series of 1991, viz:
An employee shall be considered habitually tardy if he incurs tardiness, regardless of the number
of minutes, ten (10) times a month for at least two (2) months in a semester or at least two (2)
consecutive months during the year. xxx
The concerned employees subsequently rendered their respective explanations, which the OAS
summarized thuswise:1
A. Employees previously penalized for habitual tardiness:
1. Mr. ALBERT C. SEMILLA – He was tardy for twelve (12) times in the month of
September and ten (10) times in the month of November. In his explanation dated July 9,
2010, Mr. Semilla readily admitted having incurred those tardiness and humbly submitted
to any disciplinary action for the offense. He stated that due to financial difficulties, he
reports to work and likewise returns home through his bicycle. He supports his family as
a solo parent and even enrolled in a short course for Medical Transcriptionists in an
attempt to improve their plight. He added that in the summer of 2009, his blood pressure
started to rise abnormally. It was the cause why he was rushed to the hospital twice. Since
May 2009, he was under the care of the SC Clinic for Benign Prostatic Hyperthropy,
which ailment caused him many sleepless nights.
As shown by the records, this is Mr. Semilla’s fourth incursion of habitual tardiness. He was
REPRIMANDED for his first incursion of the offense pursuant to the Court En Banc resolution
dated August 8, 2000 in A.M. No. 00-6-09-SC, Re: Imposition of Corresponding Penalties to
Employees Committing Habitual Tardiness; SUSPENDED for five (5) days for committing
habitual tardiness for the second time pursuant to A.M. No. 00-6-09-SC dated November 27,
2002, Re: Imposition of Corresponding Penalties for Habitual Tardiness committed during the
Second Semester of 2000; and SUSPENDED for ten (10) days for committing the same offense
for the third time pursuant to A.M. No. 00-06-09-SC dated March 16, 2004, Re: Imposition of
Corresponding Penalties for Habitual Tardiness committed during the 1st and 2nd Semester of
2003.
His service records show that Mr. Semilla entered the government service in the Supreme Court
as Messenger on November 7, 1979. He was promoted as Clerk on July 1, 1983, Clerk III on
July 1, 1989, and Computer Operator III on October 17, 2006, the position he is holding at
present. His performance ratings for the 1st and 2nd semesters of the year 2009 show that he
performed his work very satisfactorily. Since 2003, this is the only time again that he has
incurred tardiness.
2. Mr. FLORENTINO A. PASCUAL – He was tardy for ten (10) times in the month of
September and eleven (11) times in the month of October. In his letter dated July 7, 2010,
he explained that his tardiness was caused by his unstable blood pressure and the traffic
situation. He manifested that to the best of his ability, he will try to be punctual despite
his present health condition caused by a mild stroke.
As shown by the records, this is Mr. Pascual’s second incursion of habitual tardiness. He was
REPRIMANDED for his first incursion of the offense pursuant to the Court En Banc Resolution
dated March 16, 2004 in A.M. No. 00-06-09-SC, Re: Habitual Tardiness for the 1st and 2nd
Semester of 2003.
B. Employees incurring habitual tardiness for the first time:
1. Mr. MARC REMAN A. BESSAT – He was tardy for ten (10) times each for the
months of July and October. In his explanation dated July 9, 2010, he stated that during
the said period, he experienced abdominal cramping, bloating, gassiness and painful
bowel habits, especially on mornings. He claimed that he consulted a Gastroenterologist
on March 2010 and was diagnosed with Internal Hemorrhoids. He promised to do
everything to improve his time of arrival.
2. Mr. MELQUIADES A. BRIONES – He was tardy for fourteen (14) times in the month
of July and fifteen (15) times in the month of August. In his letter dated July 6, 2010, Mr.
Briones explained that during those times, he was the only one who could manage to
accompany his son in going to school and was always caught in traffic. His wife could
not replace him in accompanying their son to school because she has fatal diabetes and
could hardly move and travel far. He added that during the said period, he was also
having his medication concerning his allergies in both hands and feet.
3. Mr. BENJIE B. CAJANDIG – He was tardy for twelve (12) times each in the months
of July and October, and ten (10) times in the month of October. In his letter dated July 7,
2010, Mr. Cajandig explained that his tardiness was mostly due to the distance of his
residence from the office and due to heavy traffic which he encounters when traveling
from Marcos Highway to the LRT 2 Santolan Station. He averred that this was
aggravated during the rainy season since most of his tardiness were incurred during those
months. He manifested that he will do his best to address his tardiness.
4. Ms. SHERRYLYN A. NATE-CRUZ – She was tardy for ten (10) times each in the
months of July and October. In her letter dated July 6, 2010, Ms. Cruz explained that due
to the alarming increase in her blood sugar during those days, she was required to have a
regular medical checkup that resulted to her tardiness in reporting for work. She added
that at present, she is six (6) months pregnant on her second child and has pre-gestational
diabetes. But she said she will try her best not to be late for work.
5. Ms. JOLINA PAULINE T. TUAZON – She was tardy for eleven (11) times each in
the months of September and October. In her letter dated July 8, 2010, she explained that
during the said period, she was preparing for an entrance examination scheduled for
November aside from the reviews she had in the evening. Thus during the months of
September and October, she had been going home late which at times caused her to be
late for work the next day. She expressed regret in committing the offense and promised
to avoid the same violation.
6. Ms. MARY JINGLE M. VILLOCERO – She was tardy for eleven (11) times in the
month of July and ten (10) times in the month of October. In her explanation dated July
8, 2010, Ms. Villocero stated that her tardiness was caused by the fact that she has three
(3) children and without any maid to assist her in taking care of them. Her husband is
under medication with anti-depressant, thus, she sometimes cannot compel him to take
care of everything and attend to all her children’s needs. She averred that she is also a
working student with classes during Saturdays and Sundays, and has been working hard
for the advancement of her career. She added that she has been trying her best to meet her
duties and obligations, both as a responsible employee of the judiciary and as a mother,
but in the process, she still incurred tardiness. She vowed not to violate again the rules on
tardiness.
The OAS concluded that the concerned employees had incurred habitual tardiness and that their
justifications were unacceptable. Thus, it recommended the penalties to be imposed on the
concerned employees,2 as follows:
1. Mr. Albert Semilla, for having been found habitually tardy for the fourth time, be
meted the penalty of SUSPENSION for three (3) months without pay with a FINAL
WARNING that a repetition of the same offense will be dealt with more severely;
2. Mr. Florentino A. Pascual, for having been found habitually tardy for the second time,
be meted the penalty of SUSPENSION for five (5) days with a WARNING that a
repetition of the same shall be dealt with more severely;
3. Messrs. Marc Remman A. Bessat, Melquiades A. Briones, Benjie B. Cajandig, Mmes.
Sherrylyn A. Nate-Cruz, Jolina Pauline T. Tuazon, and Mary Jingle M. Villocero, for
having been found habitually tardy for the first time, be meted the penalty of
REPRIMAND with the same warning that a repetition of the same shall be dealt with
more severely.
Ruling
We adopt the evaluation of the OAS.
It is a canon under the Constitution that a public office is a public trust.3 This canon includes the
mandate for the observance of prescribed office hours and the efficient use of every moment of
such hours for the public service, because only thereby may the public servants recompense the
Government and the people for shouldering the costs of maintaining the Judiciary.4 Accordingly,
court officials and employees must at all times strictly observe official hours to inspire the
public’s respect for the justice system.5
The exacting standards of ethics and morality imposed upon court officials and employees reflect
the premium placed on the image of the courts of justice. That image is necessarily mirrored in
the conduct, official or otherwise, of the men and women who work in the Judiciary. It thus
becomes the imperative duty of everyone involved in the dispensation of justice, from the judge
to the lowliest clerk, to maintain the courts’ good name and standing as true temples of justice.6
There is no question that all the concerned employees incurred habitual tardiness within the
context of CSC Memorandum Circular No. 04, Series of 1991, supra. Thereby, they fell short of
the standard of conduct demanded from everyone connected with the administration of justice.
Worthy of stress is that the nature and functions of the employment of the officials and
employees of the Judiciary require them to be role models in the faithful observance of the
constitutional canon that public office is a public trust. They are always accountable to the
people, whom they must serve with utmost responsibility, integrity, loyalty, and efficiency. They
can surely inspire public respect for the justice system by strictly observing official time, among
others. Absenteeism and tardiness are, therefore, impermissible.7
The respective justifications of the concerned employees (consisting of illness or poor health,
travel difficulties, household responsibilities, and similar causes) are not unacceptable. Already
in Re: Supreme Court Employees Incurring Habitual Tardiness in the 2nd Semester of 2005,8 we
enunciated that justifications for absences and tardiness falling under the categories of illness,
moral obligation to family and relatives, performance of household chores, traffic and health or
physical condition are neither novel nor persuasive, and hardly evoke sympathy. If at all, such
justifications may only mitigate liability.
We next discuss the penalties.
CSC Memorandum Circular No. 19, Series of 1999, considers habitual tardiness as a light
offense with the following penalties:
First Offense Reprimand
Second Offense Suspension
Third Offense Dismissal
The penalties recommended by the OAS are well taken. However, in the case of Albert C.
Semilla, we moderate the recommended penalty of suspension for three months without pay to
one month suspension without pay but with a final warning that a repetition will be dealt with
more severely upon humanitarian considerations. Although we insist that every official or
employee of the Judiciary must meet the standards of public service, we must practice
compassion in deserving cases to avoid the wrong and unwanted impression that the Court
wields only mailed fists. Semilla deserves a degree of mitigation. In that regard, Section 53 of
Rule IV of the Revised Uniform Rules on Administrative Cases in the Civil Service9 grants the
disciplining authority the discretion to consider mitigating circumstances in the imposition of the
proper penalty. Thus, the mitigating factors in Semilla’s favor are the following:
(a) His length of service and satisfactory performance (i.e., having started as messenger
of the Court on November 7, 1979 and having served continuously until the present, with
his performance in the first and second semesters of 2009, the year in question, being
satisfactory);
(b) The fact that this infraction of habitual tardiness was his first since 2003; and
(c) His pleas for compassion (due to his medical condition of benign prostatic
hyperthropy, for which he was under the care of the SC Clinic since May 2009, and due
to his reporting to work and returning home through his bicycle to add to his financial
capacity as a solo parent of his family).
Even so, we hereby emphatically hold all the concerned employees to their respective promises
that they will not commit the same infraction hereafter, or else they will be at the end of the
mailed fists of the Court. Our compassion, which is not limitless but discriminating, should not
be taken for granted.
WHEREFORE, we find and pronounce:
1. Albert Semilla guilty of habitual tardiness for the fourth time and suspended for one
(1) month without pay, with a final warning that a repetition of the same offense will be
dealt with more severely;
2. Florentino A. Pascual guilty of habitual tardiness for the second time and suspended
for five (5) days without pay, with a warning that a repetition of the same offense will be
dealt with more severely; and
3. Marc Remman A. Bessat, Melquiades A. Briones, Benjie B. Cajandig, Sherrylyn A.

Nate-Cruz, Jolina Pauline T. Tuazon, and Mary Jingle M. Villocero guilty of habitual
tardiness for the first time and reprimanded, with warning that a repetition of the same
offense will be dealt with more severely.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

(On Leave)
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B.
Associate Justice NACHURA
Associate Justice
TERESITA J. LEONARDO DE (On Leave)

CASTRO ARTURO D. BRION




Associate Justice
Footnotes
1
Rollo, left flap, pp. 2-5.
2
OAS Memorandum dated August 9, 2010.
3
Section 1, Article XI, Constitution.
4
Re: Employees Incurring Habitual Tardiness in the First Semester of 2005, A.M. No.
2005-25-SC, July 6, 2006, 494 SCRA 422, 429, citing Administrative Circular No. 2-99
(Strict Observance of Working Hours and Disciplinary Action for Absenteeism and
Tardiness).
5
Id., pp. 29-30, citing Administrative Circular No. 1-99 (Enhancing the Dignity of Courts
as Temples of Justice and Promoting Respect for their Officials and Employees).
6
Id., citing Basco v. Gregorio, A.M. No. P-94-1026, July 6, 1995, 245 SCRA 614, 619.
7
Re: Employees Incurring Habitual Tardiness in the 1st Semester of 2007: Ms. Marivic
C. Azurin, et al., A.M. No. 2007-15-SC, January 19, 2009, 576 SCRA 121, 133-134.
8
A.M. No. 2006-11-SC, September 13, 2006, 501 SCRA 638, 645.
9
CSC Memorandum Circular No. 19-99 (September 14, 1999).
SUPREME COURT
Baguio City
EN BANC
G.R. No. 166859 April 12, 2011
REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
SANDIGANBAYAN (FIRST DIVISION), EDUARDO M. COJUANGCO, JR.,
AGRICULTURAL CONSULTANCY SERVICES, INC., ARCHIPELAGO REALTY
CORP., BALETE RANCH, INC., BLACK STALLION RANCH, INC., CHRISTENSEN
PLANTATION COMPANY, DISCOVERY REALTY CORP., DREAM PASTURES, INC.,
ECHO RANCH, INC., FAR EAST RANCH, INC., FILSOV SHIPPING COMPANY, INC.,
FIRST UNITED TRANSPORT, INC., HABAGAT REALTY DEVELOPMENT, INC.,
KALAWAKAN RESORTS, INC., KAUNLARAN AGRICULTURAL CORP., LABAYUG
AIR TERMINALS, INC., LANDAIR INTERNATIONAL MARKETING CORP., LHL
CATTLE CORP., LUCENA OIL FACTORY, INC., MEADOW LARK PLANTATIONS,
INC., METROPLEX COMMODITIES, INC., MISTY MOUNTAIN AGRICULTURAL
CORP., NORTHEAST CONTRACT TRADERS, INC., NORTHERN CARRIERS CORP.,
OCEANSIDE MARITIME ENTERPRISES, INC., ORO VERDE SERVICES, INC.,
PASTORAL FARMS, INC., PCY OIL MANUFACTURING CORP., PHILIPPINE
TECHNOLOGIES, INC., PRIMAVERA FARMS, INC., PUNONG-BAYAN HOUSING
DEVELOPMENT CORP., PURA ELECTRIC COMPANY, INC., RADIO AUDIENCE
DEVELOPERS INTEGRATED ORGANIZATION, INC., RADYO PILIPINO CORP.,
RANCHO GRANDE, INC., REDDEE DEVELOPERS, INC., SAN ESTEBAN
DEVELOPMENT CORP., SILVER LEAF PLANTATIONS, INC., SOUTHERN
SERVICE TRADERS, INC., SOUTHERN STAR CATTLE CORP., SPADE ONE
RESORTS CORP., UNEXPLORED LAND DEVELOPERS, INC., VERDANT
PLANTATIONS, INC., VESTA AGRICULTURAL CORP. AND WINGS RESORTS
CORP., Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 169203

vs.
SANDIGANBAYAN (FIRST DIVISION), EDUARDO M. COJUANGCO, JR., MEADOW
LARK PLANTATIONS, INC., SILVER LEAF PLANTATIONS, INC., PRIMAVERA
FARMS, INC., PASTORAL FARMS, INC., BLACK STALLION RANCH, INC., MISTY
MOUNTAINS AGRICULTURAL CORP., ARCHIPELAGO REALTY CORP.,
AGRICULTURAL CONSULTANCY SERVICES, INC., SOUTHERN STAR CATTLE
CORP., LHL CATTLE CORP., RANCHO GRANDE, INC., DREAM PASTURES, INC.,
FAR EAST RANCH, INC., ECHO RANCH, INC., LAND AIR INTERNATIONAL
MARKETING CORP., REDDEE DEVELOPERS, INC., PCY OIL MANUFACTURING
CORP., LUCENA OIL FACTORY, INC., METROPLEX COMMODITIES, INC., VESTA
AGRICULTURAL CORP., VERDANT PLANTATIONS, INC., KAUNLARAN
AGRICULTURAL CORP., ECJ & SONS AGRICULTURAL ENTERPRISES, INC.,
RADYO PILIPINO CORP., DISCOVERY REALTY CORP., FIRST UNITED
TRANSPORT, INC., RADIO AUDIENCE DEVELOPERS INTEGRATED
ORGANIZATION, INC., ARCHIPELAGO FINANCE AND LEASING CORP., SAN
ESTEBAN DEVELOPMENT CORP., CHRISTENSEN PLANTATION COMPANY,
NORTHERN CARRIERS CORP., VENTURE SECURITIES, INC., BALETE RANCH,
INC., ORO VERDE SERVICES, INC., and KALAWAKAN RESORTS, INC.,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 180702

vs.
EDUARDO M. COJUANGCO, JR., FERDINAND E. MARCOS, IMELDA R. MARCOS,
EDGARDO J. ANGARA,* JOSE C. CONCEPCION, AVELINO V. CRUZ, EDUARDO U.
ESCUETA, PARAJA G. HAYUDINI, JUAN PONCE ENRILE, TEODORO D. REGALA,
DANILO URSUA, ROGELIO A. VINLUAN, AGRICULTURAL CONSULTANCY
SERVICES, INC., ANGLO VENTURES, INC., ARCHIPELAGO REALTY CORP., AP
HOLDINGS, INC., ARC INVESTMENT, INC., ASC INVESTMENT, INC.,
AUTONOMOUS DEVELOPMENT CORP., BALETE RANCH, INC., BLACK
STALLION RANCH, INC., CAGAYAN DE ORO OIL COMPANY, INC.,
CHRISTENSEN PLANTATION COMPANY, COCOA INVESTORS, INC., DAVAO
AGRICULTURAL AVIATION, INC., DISCOVERY REALTY CORP., DREAM
PASTURES, INC., ECHO RANCH, INC., ECJ & SONS AGRI. ENT., INC., FAR EAST
RANCH, INC., FILSOV SHIPPING COMPANY, INC., FIRST MERIDIAN
DEVELOPMENT, INC., FIRST UNITED TRANSPORT, INC., GRANEXPORT
MANUFACTURING CORP., HABAGAT REALTY DEVELOPMENT, INC., HYCO
AGRICULTURAL, INC., ILIGAN COCONUT INDUSTRIES, INC., KALAWAKAN
RESORTS, INC., KAUNLARAN AGRICULTURAL CORP., LABAYOG AIR
TERMINALS, INC., LANDAIR INTERNATIONAL MARKETING CORP., LEGASPI
OIL COMPANY, LHL CATTLE CORP., LUCENA OIL FACTORY, INC., MEADOW
LARK PLANTATIONS, INC., METROPLEX COMMODITIES, INC., MISTY
MOUNTAIN AGRICULTURAL CORP., NORTHEAST CONTRACT TRADERS, INC.,
NORTHERN CARRIERS CORP., OCEANSIDE MARITIME ENTERPRISES, INC.,
ORO VERDE SERVICES, INC., PASTORAL FARMS, INC., PCY OIL
MANUFACTURING CORP., PHILIPPINE RADIO CORP., INC., PHILIPPINE
TECHNOLOGIES, INC., PRIMAVERA FARMS, INC., PUNONG-BAYAN HOUSING
DEVELOPMENT CORP., PURA ELECTRIC COMPANY, INC., RADIO AUDIENCE
DEVELOPERS INTEGRATED ORGANIZATION, INC., RADYO PILIPINO CORP.,
RANCHO GRANDE, INC., RANDY ALLIED VENTURES, INC., REDDEE
DEVELOPERS, INC., ROCKSTEEL RESOURCES, INC., ROXAS SHARES, INC., SAN
ESTEBAN DEVELOPMENT CORP., SAN MIGUEL CORPORATION OFFICERS,
INC., SAN PABLO MANUFACTURING CORP., SOUTHERN LUZON OIL MILLS,
INC., SILVER LEAF PLANTATIONS, INC., SORIANO SHARES, INC., SOUTHERN
SERVICE TRADERS, INC., SOUTHERN STAR CATTLE CORP., SPADE 1 RESORTS
CORP., TAGUM AGRICULTURAL DEVELOPMENT CORP., TEDEUM RESOURCES,
INC., THILAGRO EDIBLE OIL MILLS, INC., TODA HOLDINGS, INC.,
UNEXPLORED LAND DEVELOPERS, INC., VALHALLA PROPERTIES, INC.,
VENTURES SECURITIES, INC., VERDANT PLANTATIONS, INC., VESTA
AGRICULTURAL CORP. and WINGS RESORTS CORP., Respondents.
JOVITO R. SALONGA, WIGBERTO E. TAÑADA, OSCAR F. SANTOS, VIRGILIO M.
DAVID, ROMEO C. ROYANDAYAN for himself and for SURIGAO DEL SUR
FEDERATION OF AGRICULTURAL COOPERATIVES (SUFAC), MORO FARMERS
ASSOCIATION OF ZAMBOANGA DEL SUR (MOFAZS) and COCONUT FARMERS
OF SOUTHERN LEYTE COOPERATIVE (COFA-SL); PHILIPPINE RURAL
RECONSTRUCTION MOVEMENT (PRRM), represented by CONRADO S. NAVARRO;
COCONUT INDUSTRY REFORM MOVEMENT, INC. (COIR) represented by JOSE
MARIE T. FAUSTINO; VICENTE FABE for himself and for PAMBANSANG KILUSAN
NG MGA SAMAHAN NG MAGSASAKA (PAKISAMA); NONITO CLEMENTE for
himself and for the NAGKAKAISANG UGNAYAN NG MGA MALILIIT NA
MAGSASAKA AT MANGGAGAWA SA NIYUGAN (NIUGAN); DIONELO M.
SUANTE, SR. for himself and for KALIPUNAN NG MALILIIT NA MAGNINIYOG NG
PILIPINAS (KAMMPIL), INC., Petitioners-Intervenors.
DECISION
BERSAMIN, J.:
For over two decades, the issue of whether the sequestered sizable block of shares representing
20% of the outstanding capital stock of San Miguel Corporation (SMC) at the time of acquisition
belonged to their registered owners or to the coconut farmers has remained unresolved. Through
this decision, the Court aims to finally resolve the issue and terminate the uncertainty that has
plagued that sizable block of shares since then.
These consolidated cases were initiated on various dates by the Republic of the Philippines
(Republic) via petitions for certiorari in G.R. Nos. 1668591 and 169023,2 and via petition for
review on certiorari in 180702,3 the first two petitions being brought to assail the following
resolutions issued in Civil Case No. 0033-F by the Sandiganbayan, and the third being brought to
appeal the adverse decision promulgated on November 28, 2007 in Civil Case No. 0033-F by the
Sandiganbayan.
Specifically, the petitions and their particular reliefs are as follows:
(a) G.R. No. 166859 (petition for certiorari), to assail the resolution promulgated on
December 10, 20044 denying the Republic’s Motion For Partial Summary Judgment;
(b) G.R. No. 169023 (petition for certiorari), to nullify and set aside, firstly, the resolution
promulgated on October 8, 2003,5 and, secondly, the resolution promulgated on June 24,
20056 modifying the resolution of October 8, 2003; and
(c) G.R. No. 180702 (petition for review on certiorari), to appeal the decision
promulgated on November 28, 2007.7
ANTECEDENTS
On July 31, 1987, the Republic commenced Civil Case No. 0033 in the Sandiganbayan by
complaint, impleading as defendants respondent Eduardo M. Cojuangco, Jr. (Cojuangco) and 59
individual defendants. On October 2, 1987, the Republic amended the complaint in Civil Case
No. 0033 to include two additional individual defendants. On December 8, 1987, the Republic
further amended the complaint through its Amended Complaint [Expanded per Court-Approved
Plaintiff’s ‘Manifestation/Motion Dated Dec. 8, 1987] albeit dated October 2, 1987.
More than three years later, on August 23, 1991, the Republic once more amended the complaint
apparently to avert the nullification of the writs of sequestration issued against properties of
Cojuangco. The amended complaint dated August 19, 1991, designated as Third Amended
Complaint [Expanded Per Court-Approved Plaintiff’s Manifestation/Motion Dated Dec. 8,
1987],8 impleaded in addition to Cojuangco, President Marcos, and First Lady Imelda R. Marcos
nine other individuals, namely: Edgardo J. Angara, Jose C. Concepcion, Avelino V. Cruz,
Eduardo U. Escueta, Paraja G. Hayudini, Juan Ponce Enrile, Teodoro D. Regala, and Rogelio
Vinluan, collectively, the ACCRA lawyers, and Danilo Ursua, and 71 corporations.
On March 24, 1999, the Sandiganbayan allowed the subdivision of the complaint in Civil Case
No. 0033 into eight complaints, each pertaining to distinct transactions and properties and
impleading as defendants only the parties alleged to have participated in the relevant transactions
or to have owned the specific properties involved. The subdivision resulted into the following
subdivided complaints, to wit:
Subdivided
Subject Matter
Complaint
1. Civil Case Anomalous Purchase and Use of
No. 0033- First United Bank (now United
A Coconut Planters Bank)
2. Civil Case Creation of Companies Out of
No. 0033- Coco Levy Funds
B
3. Civil Case Creation and Operation of Bugsuk
No. 0033- Project and Award of P998 Million
C Damages to Agricultural Investors,
Inc.
4. Civil Case Disadvantageous Purchases and
No. 0033- Settlement of the Accounts of Oil
D Mills Out of Coco Levy Funds
5. Civil Case Unlawful Disbursement and
No. 0033- Dissipation of Coco Levy Funds
E
6. Civil Case Acquisition of SMC shares of stock
No. 0033-
F
7. Civil Case Acquisition of Pepsi-Cola
No. 0033-
G
8. Civil Case Behest Loans and Contracts
No. 0033-
H
In Civil Case No. 0033-F, the individual defendants were Cojuangco, President Marcos and First
Lady Imelda R. Marcos, the ACCRA lawyers, and Ursua. Impleaded as corporate defendants
were Southern Luzon Oil Mills, Cagayan de Oro Oil Company, Incorporated, Iligan Coconut
Industries, Incorporated, San Pablo Manufacturing Corporation, Granexport Manufacturing
Corporation, Legaspi Oil Company, Incorporated, collectively referred to herein as the CIIF Oil
Mills, and their 14 holding companies, namely: Soriano Shares, Incorporated, Roxas Shares,
Incorporated, Arc Investments, Incorporated, Toda Holdings, Incorporated, ASC Investments,
Incorporated, Randy Allied Ventures, Incorporated, AP Holdings, Incorporated, San Miguel
Corporation Officers, Incorporated, Te Deum Resources, Incorporated, Anglo Ventures,
Incorporated, Rock Steel Resources, Incorporated, Valhalla Properties, Incorporated, and First
Meridian Development, Incorporated.
Allegedly, Cojuangco purchased a block of 33,000,000 shares of SMC stock through the 14
holding companies owned by the CIIF Oil Mills. For this reason, the block of 33,133,266 shares
of SMC stock shall be referred to as the CIIF block of shares.
Also impleaded as defendants in Civil Case No. 0033-F were several corporations9 alleged to
have been under Cojuangco’s control and used by him to acquire the block of shares of SMC
stock totaling 16,276,879 at the time of acquisition (representing approximately 20% percent of
the capital stock of SMC). These corporations are referred to as Cojuangco corporations or
companies, to distinguish them from the CIIF Oil Mills. Reference hereafter to Cojuangco and
the Cojuangco corporations or companies shall be as Cojuangco, et al., unless the context
requires individualization.
The material averments of the Republic’s Third Amended Complaint (Subdivided)10 in Civil
Case No. 0033-F included the following:
12. Defendant Eduardo Cojuangco, Jr., served as a public officer during the Marcos
administration. During the period of his incumbency as a public officer, he acquired
assets, funds, and other property grossly and manifestly disproportionate to his salaries,
lawful income and income from legitimately acquired property.
13. Having fully established himself as the undisputed "coconut king" with unlimited
powers to deal with the coconut levy funds, the stage was now set for Defendant Eduardo
M. Cojuangco, Jr. to launch his predatory forays into almost all aspects of Philippine
economic activity namely: softdrinks, agribusiness, oil mills, shipping, cement
manufacturing, textile, as more fully described below.
14. Defendant Eduardo Cojuangco, Jr. taking undue advantage of his association,
influence and connection, acting in unlawful concert with Defendants Ferdinand E.
Marcos and Imelda R. Marcos, and the individual defendants, embarked upon devices,
schemes and stratagems, including the use of defendant corporations as fronts, to unjustly
enrich themselves at the expense of Plaintiff and the Filipino people, such as when he –
misused coconut levy funds to buy out majority of the outstanding shares of stock of San
Miguel Corporation in order to control the largest agri-business, foods and beverage
company in the Philippines, more particularly described as follows:
(b) He entered SMC in early 1983 when he bought most of the 20 million shares
Enrique Zobel owned in the Company. The shares, worth $49 million, represented
20% of SMC;
(c) Later that year, Cojuangco also acquired the Soriano stocks through a series of
complicated and secret agreements, a key feature of which was a "voting trust
agreement" that stipulated that Andres, Jr. or his heir would proxy over the vote
of the shares owned by Soriano and Cojuangco. This agreement, which accounted
for 30% of the outstanding shares of SMC and which lasted for five (5) years,
enabled the Sorianos to retain management control of SMC for the same period;
(d) Furthermore, in exchange for an SMC investment of $45 million in non-voting

preferred shares in UCPB, Soriano served as the vice-chairman of the supposed
bank of the coconut farmers, UCPB, and in return, Cojuangco, for investing funds
from the coconut levy, was named vice-chairman of SMC;
(e) Consequently, Cojuangco enjoyed the privilege of appointing his nominees to

the SMC Board, to which he appointed key members of the ACCRA Law Firm
(herein Defendants) instead of coconut farmers whose money really funded the
sale;
(f) The scheme of Cojuangco to use the lawyers of the said Firm was revealed in a
document which he signed on 19 February 1983 entitled "Principles and
Framework of Mutual Cooperation and Assistance" which governed the rules for
the conduct of management of SMC and the disposition of the shares which he
bought.
(g) All together, Cojuangco purchased 33 million shares of the SMC through the
following 14 holding companies:
a) Soriano Shares, Inc. 1,249,163

b) ASC Investors, Inc. 1,562,449
c) Roxas Shares, Inc. 2,190,860
d) ARC Investors, Inc. 4,431,798
e) Toda Holdings, Inc. 3,424,618
f) AP Holdings, Inc. 1,580,997
g) Fernandez Holdings, Inc. 838,837
h) SMC Officers Corps., Inc. 2,385,987
i) Te Deum Resources, Inc. 2,674,899
j) Anglo Ventures Corp. 1,000.000
k) Randy Allied Ventures, Inc. 1,000,000
l) Rock Steel Resources, Inc. 2,432,625
m) Valhalla Properties Ltd., Inc. 1,361,033
n) First Meridian Development, Inc. 1,000,000
33,133,266
3.1. The same fourteen companies were in turn owned by the following six (6) so-
called CIIF Companies which were:
a) San Pablo Manufacturing Corp. 19%

b) Southern Luzon Coconut Oil Mills, Inc. 11%
c) Granexport Manufacturing Corporation 19%
d) Legaspi Oil Company, Inc. 18%
e) Cagayan de Oro Oil Company, Inc. 18%
f) Iligan Coconut Industries, Inc. 15%
100%
(h) Defendant Corporations are but "shell" corporations owned by interlocking

shareholders who have previously admitted that they are just "nominee
stockholders" who do not have any proprietary interest over the shares in their
names. The respective affidavits of the following, namely: Jose C. Concepcion,
Florentino M. Herrera III, Teresita J. Herbosa, Teodoro D. Regala, Victoria C. de
los Reyes, Manuel R. Roxas, Rogelio A. Vinluan, Eduardo U. Escuete and
Franklin M. Drilon, who were all, at the time they became such stockholders,
lawyers of the Angara Abello Concepcion Regala & Cruz (ACCRA) Law Offices,
the previous counsel who incorporated said corporations, prove that they were
merely nominee stockholders thereof.
(i) Mr. Eduardo M. Cojuangco, Jr., acquired a total of 16,276,879 shares of San
Miguel Corporation from the Ayala group: of said shares, a total of 8,138,440
(broken into 7,128,227 Class A and 1,010,213 Class B shares) were placed in the
names of Meadowlark Plantations, Inc. (2,034,610) and Primavera Farms, Inc.
(4,069,220). The Articles of Incorporation of these three companies show that
Atty. Jose C. Concepcion of ACCRA owns 99.6% of the entire outstanding stock.
The same shareholder executed three (3) separate "Declaration of Trust and
Assignment of Subscription:" in favor of a BLANK assignee pertaining to his
shareholdings in Primavera Farms, Inc., Silver Leaf Plantations, Inc. and
Meadowlark Plantations, Inc.
(k) The other respondent Corporations are owned by interlocking shareholders

who are likewise lawyers in the ACCRA Law Offices and had admitted their
status as "nominee stockholders" only.
(k-1) The corporations: Agricultural Consultancy Services, Inc.,

Archipelago Realty Corporation, Balete Ranch, Inc., Black Stallion
Ranch, Inc., Discovery Realty Corporation, First United Transport, Inc.,
Kaunlaran Agricultural Corporation, LandAir International Marketing
Corporation, Misty Mountains Agricultural Corporation, Pastoral Farms,
Inc., Oro Verde Services, Inc. Radyo Filipino Corporation, Reddee
Developers, Inc., Verdant Plantations, Inc. and Vesta Agricultural
Corporation, were incorporated by lawyers of ACCRA Law Offices.
(k-2) With respect to PCY Oil Manufacturing Corporation and Metroplex

Commodities, Inc., they are controlled respectively by HYCO, Inc. and
Ventures Securities, Inc., both of which were incorporated likewise by
lawyers of ACCRA Law Offices.
(k-3) The stockholders who appear as incorporators in most of the other

Respondents corporations are also lawyers of the ACCRA Law Offices,
who as early as 1987 had admitted under oath that they were acting only
as "nominee stockholders."
(l) These companies, which ACCRA Law Offices organized for Defendant
Cojuangco to be able to control more than 60% of SMC shares, were funded by
institutions which depended upon the coconut levy such as the UCPB, UNICOM,
United Coconut Planters Assurance Corp. (COCOLIFE), among others.
Cojuangco and his ACCRA lawyers used the funds from 6 large coconut oil mills
and 10 copra trading companies to borrow money from the UCPB and purchase
these holding companies and the SMC stocks. Cojuangco used $150 million from
the coconut levy, broken down as follows:
Amount Source Purpose

(in million)
$22.26 Oil Mills equity in holding companies
$65.6 Oil Mills loan to holding companies
$61.2 UCPB loan to holding companies [164]
The entire amount, therefore, came from the coconut levy, some passing through
the Unicom Oil mills, others directly from the UCPB.
(m) With his entry into the said Company, it began to get favors from the Marcos
government, significantly the lowering of the excise taxes (sales and specific
taxes) on beer, one of the main products of SMC.
(n) Defendant Cojuangco controlled SMC from 1983 until his co-defendant
Marcos was deposed in 1986.
(o) Along with Cojuangco, Defendant Enrile and ACCRA also had interests in
SMC, broken down as follows:
% of SMC
Owner
Cojuangco
31.3% coconut levy money
18% companies linked to Cojuangco
5.2% government
5.2% SMC employee retirement fund
Enrile & ACCRA
1.8% Enrile
1.8% Jaka Investment Corporation
1.8% ACCRA Investment Corporation
15. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C. Concepcion,

Teodoro Regala, Avelino Cruz, Rogelio Vinluan, Eduardo U. Escueta and Paraja G.
Hayudini of the Angara Concepcion Cruz Regala and Abello law offices (ACCRA)
plotted, devised, schemed, conspired and confederated with each other in setting up,
through the use of coconut levy funds, the financial and corporate framework and
structures that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK.
CIC, and more than twenty other coconut levy-funded corporations, including the
acquisition of San Miguel Corporation shares and its institutionalization through
presidential directives of the coconut monopoly. Through insidious means and
machinations, ACCRA, being the wholly-owned investment arm, ACCRA Investments
Corporation, became the holder of approximately fifteen million shares representing
roughly 3.3% of the total outstanding capital stock of UCPB as of 31 March 1987. This
ranks ACCRA Investments Corporation number 44 among the top 100 biggest
stockholders of UCPB which has approximately 1,400,000 shareholders. On the other
hand, the corporate books show the name Edgardo J. Angara as holding approximately
3,744 shares as of February, 1984.
16. The acts of Defendants, singly or collectively, and/or in unlawful concert with one
another, constitute gross abuse of official position and authority, flagrant breach of public
trust and fiduciary obligations, brazen abuse of right and power, unjust enrichment,
violation of the constitution and laws of the Republic of the Philippines, to the grave and
irreparable damage of Plaintiff and the Filipino people.11
On June 17, 1999, Ursua and Enrile each filed his separate Answer with Compulsory
Counterclaims.
Before filing their answer, the ACCRA lawyers sought their exclusion as defendants in Civil
Case No. 0033, averring that even as they admitted having assisted in the organization and
acquisition of the companies included in Civil Case No. 0033, they had acted as mere nominees-
stockholders of corporations involved in the sequestration proceedings pursuant to office
practice. After the Sandiganbayan denied their motion, they elevated their cause to this Court,
which ultimately ruled in their favor in the related cases of Regala, et al. v. Sandiganbayan, et
al.12 and Hayudini v. Sandiganbayan, et al.,13 as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent

Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21, 1992 are hereby
ANNULLED and SET ASIDE. Respondent Sandiganbayan is further ordered to exclude
petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Victor
P. Lazatin, Eduardo U. Escueta and Paraja G. Hayudini as parties-defendants in SB Civil Case
No. 0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr., et al."
SO ORDERED.
Conformably with the ruling, the Sandiganbayan excluded the ACCRA lawyers from the case on
May 24, 2000.14
On June 23, 1999, Cojuangco filed his Answer to the Third Amended Complaint,15 averring the
following affirmative defenses, to wit:
7.00. The Presidential Commission on Good Government (PCGG) is without authority to

act in the name and in behalf of the "Republic of the Philippines".
7.01. As constituted in E.O. No. 1, the PCGG was composed of "Minister Jovito R.
Salonga, as Chairman, Mr. Ramon Diaz, Mr. Pedro L. Yap, Mr. Raul Daza and Ms. Mary
Concepcion Bautista, as Commissioners". When the complaint in the instant case was
filed, Minister Salonga, Mr. Pedro L. Yap and Mr. Raul Daza had already left the PCGG.
By then the PCGG had become functus officio.
7.02. The Sandiganbayan has no jurisdiction over the complaint or over the transaction
alleged in the complaint.
7.03. The complaint does not allege any cause of action.
7.04. The complaint is not brought in the name of the real parties in interest, assuming
any cause of action exists.
7.05. Indispensable and necessary parties have not been impleaded.
7.06. There is improper joinder of causes of action (Sec. 6, Rule 2, Rules of Civil
Procedure). The causes of action alleged, if any, do not arise out of the same contract,
transaction or relation between the parties, nor are they simply for money, or are of the
same nature and character.
7.07. There is improper joinder of parties defendants (Sec. 11, Rule 3, Rules of Civil
Procedure).The causes of action alleged as to defendants, if any, do not involve a single
transaction or a related series of transactions. Defendant is thus compelled to litigate in a
suit regarding matters as to which he has no involvement. The questions of fact and law
involved are not common to all defendants.
7.08. In so far as the complaint seeks the forfeiture of assets allegedly acquired by
defendant "manifestly out of proportion to their salaries, to their other lawful income and
income from legitimately acquired property," under R.A. 1379, the "previous inquiry
similar to preliminary investigation in criminal cases" required to be conducted under
Sec. 2 of that law before any suit for forfeiture may be instituted, was not conducted; as a
consequence, the Court may not acquire and exercise jurisdiction over such a suit.
7.09. The complaint in the instant suit was filed July 31, 1987, or within one year before
the local election held on January 18, 1988. If this suit involves an action under R.A.
1379, its institution was also in direct violation of Sec. 2, R.A. No. 1379.
7.10. E.O. No. 1, E.O. No. 2, E.O. No. 14 and 14-A, are unconstitutional. They violate
due process, equal protection, ex post facto and bill of attainder provisions of the
Constitution.
7.11. Acts imputed to defendant which he had committed were done pursuant to law and
in good faith.
The Cojuangco corporations’ Answer16 had the same tenor as the Answer of Cojuangco.
In his own Answer with Compulsory Counterclaims,17 Ursua averred affirmative and special
defenses.
In his own Answer with Compulsory Counterclaims,18 Enrile specifically denied the material
averments of the Third Amended Complaint and asserted affirmative defenses.
The CIIF Oil Mills’ Answer19 also contained affirmative defenses.
On December 20, 1999, the Sandiganbayan scheduled the pre-trial in Civil Case No. 0033-F on
March 8, 2000, giving the parties sufficient time to file their Pre-Trial Briefs prior to that date.
Subsequently, the parties filed their respective Pre-Trial Briefs, as follows: Cojuangco and the
Cojuangco corporations, jointly on February 14, 2000; Enrile, on March 1, 2000; the CIIF Oil
Mills, on March 3, 2000; and Ursua, on March 6, 2000. However, the Republic sought several
extensions to file its own Pre-Trial Brief, and eventually did so on May 9, 2000.
In the meanwhile, some non-parties sought to intervene. On November 22, 1999, GABAY
Foundation, Inc. (GABAY) filed its complaint-in-intervention. On February 24, 2000, the
Philippine Coconut Producers Federation, Inc., Maria Clara L. Lobregat, Jose R. Eleazar, Jr.,
Domingo Espina, Jose Gomez, Celestino Sabate, Manuel del Rosario, Jose Martinez, Jr., and
Eladio Chato (collectively referred to as COCOFED, considering that the co-intervenors were its
officers) also sought to intervene, citing the October 2, 1989 ruling in G.R. No. 75713 entitled
COCOFED v. PCGG whereby the Court recognized COCOFED as the "private national
association of coconut producers certified in 1971 by the PHILCOA as having the largest
membership among such producers" and as such "entrusted it with the task of maintaining
continuing liaison with the different sectors of the industry, the government and its mass base."
Pending resolution of its motion for intervention, COCOFED filed a Pre-Trial Brief on March 2,
2000.
On May 24, 2000, the Sandiganbayan denied GABAY’s intervention without prejudice because
it found "that the allowance of GABAY to enter under the special character in which it presents
itself would be to open the doors to other groups of coconut farmers whether of the same kind or
of any other kind which could be considered a sub-class or a sub-classification of the coconut
planters or the coconut industry of this country."20
COCOFED’s intervention as defendant was allowed on May 24, 2000, however, because "the
position taken by the COCOFED is relevant to the proceedings herein, if only to state that there
is a special function which the COCOFED and the coconut planters have in the matter of the
coconut levy funds and the utilization of those funds, part of which is in dispute in the instant
matter."21
The pre-trial was actually held on May 24, 2000,22 during which the Sandiganbayan sought
clarification from the parties, particularly the Republic, on their respective positions, but at the
end it found the clarifications "inadequately" enlightening. Nonetheless, the Sandiganbayan, not
disposed to reset, terminated the pre-trial:
xxx primarily because the Court is given a very clear impression that the plaintiff does not know
what documents will be or whether they are even available to prove the causes of action in the
complaint. The Court has pursued and has exerted every form of inquiry to see if there is a way
by which the plaintiff could explain in any significant particularity the acts and the evidence
which will support its claim of wrong-doing by the defendants. The plaintiff has failed to do so.23
The following material portions of the pre-trial order24 are quoted to provide a proper perspective
of what transpired during the pre-trial, to wit:
Upon oral inquiry from the Court, the issues which were being raised by plaintiff appear to have
been made on a very generic character. Considering that any claim for violation or breach of
trust or deception cannot be made on generic statements but rather by specific acts which would
demonstrate fraud or breach of trust or deception, together with the evidence in support thereof,
the same was not acceptable to the Court.
The plaintiff through its designated counsel for this morning, Atty. Dennis Taningco, has
represented to this Court that the annexes to its pre-trial brief, more particularly the findings of
the COA in its various examinations, copies of which COA reports are attached to the pre-trial
brief, would demonstrate the wrong, the act or omission attributed to the defendants or to several
of them and the basis, therefore, for the relief that plaintiff seeks in its complaint. It would
appear, however, that the plaintiff through its counsel at this time is not prepared to go into the
specifics of the identification of these wrongs or omissions attributed to plaintiff.
The Court has reminded the plaintiff that a COA report proves itself only in proceedings where
the issue arises from a review of the accountability of particular officers and, therefore, to show
the existence of shortages or deficiencies in an examination conducted for that purpose, provided
that such a report is accompanied by its own working papers and other supporting documents.
In civil cases such as this, a COA report would not have the same independent probative value
since it is not a review of the accountability of public officers for public property in their custody
as accountable officers. It has been the stated view of this Court that a COA report, to be of
significant evidence, may itself stand only on the basis of the supporting documents that upon
which it is based and upon an analysis made by those who are competent to do so. The Court,
therefore, sought a more specific statement from plaintiff as to what these documents were and
which of them would prove a particular act or omission or a series of acts or omissions
purportedly committed by any, by several or by all of the defendants in any particular stage of
the chain of alleged wrong-doing in this case.
The plaintiff was not in a position to do so.
The Court has remonstrated with the plaintiff, insofar as its inadequacy is concerned, primarily
because this case was set for pre-trial as far back as December and has been reset from its
original setting, with the undertaking by the plaintiff to prepare itself for these proceedings. It
appears to this Court at this time that the failure of the plaintiff to have available responses and
specific data and documents at this stage is not because the matter has been the product of
oversight or notes and papers left elsewhere; rather, the agitation of this Court arises from the
fact that at this very stage, the plaintiff through its counsel does not know what these documents
are, where these documents will be and is still anticipating a submission or a delivery thereof by
COA at an undetermined time. The justification made by counsel for this stance is that this is
only pre-trial and this information and the documents are not needed yet.
The Court is not prepared to postpone the pre-trial anew primarily because the Court is given a
very clear impression that the plaintiff does not know what documents will be or whether they
are even available to prove the causes of action in the complaint. The Court has pursued and has
exerted every form of inquiry to see if there is a way by which the plaintiff could explain in any
significant particularity the acts and the evidence which will support its claim of wrong-doing by
the defendants. The plaintiff has failed to do so.
Defendants Cojuangco have come back and reiterated their previous inquiry as to the statement
of the cause of action and the description thereof. While the Court acknowledges that logically,
that statement along that line would be primary, the Court also recognizes that sometimes the
phrasing of the issue may be determined or may arise after a statement of the evidence is
determined by this Court because the Court can put itself in a position of more clearly and
perhaps more accurately stating what the issues are. The Pre-Trial Order, after all, is not so much
a reflection of merely separate submissions by all of the parties involved, witnesses by the Court,
as to what the subject matter of litigation will be, including the determination of what matters of
fact remain unresolved. At this time, the plaintiff has not taken the position on any factual
statement or any piece of evidence which can be subject of admission or denial, nor any specifics
of any act which could be disputed by the defendants; what plaintiff through counsel has stated
are general conclusions, general statements of abuse and misuse and opportunism.
After an extended break requested by some of the parties, the sessions were resumed and nothing
anew arose from the plaintiff. The plaintiff sought fifteen (15) days to file a reply to the
comments and observations made by defendant Cojuangco to the pre-trial brief of the plaintiff.
This Court denied this Request since the submissions in preparation for pre-trial are not litigious
or contentious matters. They are mere assertions or positions which may or may not be
meritorious depending upon the view of the Court of the entire case and if useful at the pre-trial.
At this stage, the plaintiff then reiterated its earlier request to consider the pre-trial terminated.
The Court sought the positions of the other parties, whether or not they too were prepared to
submit their respective positions on the basis of what was before the Court at pre-trial. All of the
parties, in the end, have come to an agreement that they were submitting their own respective
positions for purpose of pre-trial on the basis of the submissions made of record.
With all of the above, the pre-trial is now deemed terminated.
This Order has been overly extended simply because there has been a need to put on record all of
the events that have taken place leading to the conclusions which were drawn herein.
The parties have indicated a desire to make their submissions outside of trial as a consequence of
this terminated pre-trial, with the plea that the transcript of the proceedings this morning be made
available to them, so that they may have the basis for whatever assertions they will have to make
either before this Court or elsewhere. The Court deems the same reasonable and the Court now
gives the parties fifteen (15) days after notice to them that the transcript of stenographic notes of
the proceedings herein are complete and ready for them to be retrieved. Settings for trial or for
any other proceeding hereafter will be fixed by this Court either upon request of the parties or
when the Court itself shall have determined that nothing else has to be done.
The Court has sought confirmation from the parties present as to the accuracy of the
recapitulation herein of the proceedings this morning and the Court has gotten assent from all of
the parties.
xxx
SO ORDERED.25
In the meanwhile, the Sandiganbayan, in order to conform with the ruling in Presidential
Commission on Good Government v. Cojuangco, et al.,26 resolved COCOFED’s Omnibus
Motion (with prayer for preliminary injunction) relative to who should vote the UCPB shares
under sequestration, holding as follows: 27
In the light of all of the above, the Court submits itself to jurisprudence and with the statements
of the Supreme Court in G.R. No. 115352 entitled Enrique Cojuangco, Jr., et al. vs. Jaime
Calpo, et al. dated January 27, 1997, as well as the resolution of the Supreme Court promulgated
on January 27, 1999 in the case of PCGG vs. Eduardo Cojuangco, Jr., et al., G.R. No. 13319
which included the Sandiganbayan as one of the respondents. In these two cases, the Supreme
Court ruled that the voting of sequestered shares of stock is governed by two considerations,
namely:
1. whether there is prima facie evidence showing that the said shares are ill-gotten and
thus belong to the State; and
2. whether there is an imminent danger of dissipation thus necessitating their continued

sequestration and voting by the PCGG while the main issue pends with the
Sandiganbayan.
xxx xxx xxx
In view hereof, the movants COCOFED, et al and Ballares, et al. as well as Eduardo Cojuangco,
et al. who were acknowledged to be registered stockholders of the UCPB are authorized, as are
all other registered stockholders of the United Coconut Planters Bank, until further orders from
this Court, to exercise their rights to vote their shares of stock and themselves to be voted upon
in the United Coconut Planters Bank (UCPB) at the scheduled Stockholders’ Meeting on March
6, 2001 or on any subsequent continuation or resetting thereof, and to perform such acts as will
normally follow in the exercise of these rights as registered stockholders.
xxx xxx xxx

Consequently, on March 1, 2001, the Sandiganbayan issued a writ of preliminary injunction to
enjoin the PCGG from voting the sequestered shares of stock of the UCPB.
On July 25, 2002, before Civil Case No. 0033-F could be set for trial, the Republic filed a
Motion for Judgment on the Pleadings and/or for Partial Summary Judgment (Re: Defendants
CIIF Companies, 14 Holding Companies and COCOFED, et al.).28
Cojuangco, Enrile, and COCOFED separately opposed the motion. Ursua adopted COCOFED’s
opposition.
Thereafter, the Republic likewise filed a Motion for Partial Summary Judgment [Re: Shares in
San Miguel Corporation Registered in the Respective Names of Defendant Eduardo M.
Cojuangco, Jr. and the Defendant Cojuangco Companies].29
Cojuangco, et al. opposed the motion,30 after which the Republic submitted its reply.31
On February 23, 2004, the Sandiganbayan issued an order,32 in which it enumerated the admitted
facts or facts that appeared to be without substantial controversy in relation to the Republic’s
Motion for Judgment on the Pleadings and/or for Partial Summary Judgment [Re: Defendants
CIIF Companies, 14 Holding Companies and COCOFED, et al.].
Commenting on the order of February 23, 2004, Cojuangco, et al. specified the items they
considered as inaccurate, but particularly interposed no objection to item no. 17 (to the extent
that item no. 17 stated that Cojuangco had disclaimed any interest in the CIIF block SMC shares
of stock registered in the names of the 14 corporations listed in item no. 1 of the order).33
The Republic also filed its Comment,34 but COCOFED denied the admitted facts summarized in
the order of February 23, 2004.35
Earlier, on October 8, 2003,36 the Sandiganbayan resolved the various pending motions and
pleadings relative to the writs of sequestration issued against the defendants, disposing:
IN VIEW OF THE FOREGOING, the Writs of Sequestration Nos. (a) 86-0042 issued on April
8, 1986, (b) 86-0062 issued on April 21, 1986, (c) 86-0069 issued on April 22, 1986, (d) 86-0085
issued on May 9, 1986, (e) 86-0095 issued on May 16, 1986, (f) 86-0096 dated May 16, 1986,
(g) 86-0097 issued on May 16, 1986, (h) 86-0098 issued on May 16, 1986 and (i) 87-0218 issued
on May 27, 1987 are hereby declared automatically lifted for being null and void.
Despite the lifting of the writs of sequestration, since the Republic continues to hold a claim on
the shares which is yet to be resolved, it is hereby ordered that the following shall be annotated
in the relevant corporate books of San Miguel Corporation:
(1) any sale, pledge, mortgage or other disposition of any of the shares of the Defendants
Eduardo Cojuangco, et al. shall be subject to the outcome of this case;
(2) the Republic through the PCGG shall be given twenty (20) days written notice by
Defendants Eduardo Cojuangco, et al. prior to any sale, pledge, mortgage or other
disposition of the shares;
(3) in the event of sale, mortgage or other disposition of the shares, by the Defendants
Cojuangco, et al., the consideration therefore, whether in cash or in kind, shall be placed
in escrow with Land Bank of the Philippines, subject to disposition only upon further
orders of this Court; and
(4) any cash dividends that are declared on the shares shall be placed in escrow with the
Land Bank of the Philippines, subject to disposition only upon further orders of this
Court. If in case stock dividends are declared, the conditions on the sale, pledge,
mortgage and other disposition of any of the shares as above-mentioned in conditions 1, 2
and 3, shall likewise apply.
In so far as the matters raised by Defendants Eduardo Cojuangco, et al. in their "Omnibus
Motion" dated September 23, 1996 and "Reply to PCGG’s Comment/Opposition with Motion to
Order PCGG to Complete Inventory, to Nullify Writs of Sequestration and to Enjoin PCGG from
Voting Sequestered Shares of Stock" dated January 3, 1997, considering the above conclusion,
this Court rules that it is no longer necessary to delve into the matters raised in the said Motions.
SO ORDERED.37
Cojuangco, et al. moved for the modification of the resolution,38 praying for the deletion of the
conditions for allegedly restricting their rights. The Republic also sought reconsideration of the
resolution.39
Eventually, on June 24, 2005, the Sandiganbayan denied both motions, but reduced the
restrictions thuswise:
WHEREFORE, the "Motion for Reconsideration (Re: Resolution dated September 17, 2003
Promulgated on October 8, 2003)" dated October 24, 2003 of Plaintiff Republic is hereby
DENIED for lack of merit. As to the "Motion for Modification (Re: Resolution Promulgated on
October 8, 2003)" dated October 22, 2003, the same is hereby DENIED for lack of merit.
However, the restrictions imposed by this Court in its Resolution dated September 17, 2003 and
promulgated on October 8, 2003 shall now read as follows:
"Despite the lifting of the writs of sequestration, since the Republic continues to hold a claim on
the shares which is yet to be resolved, it is hereby ordered that the following shall be annotated
in the relevant corporate books of San Miguel Corporation:
"a) any sale, pledge, mortgage or other disposition of any of the shares of the Defendants
Eduardo Cojuangco, et al. shall be subject to the outcome of this case.
"b) the Republic through the PCGG shall be given twenty (20) days written notice by Defendants
Eduardo Cojuangco, et al. prior to any sale, pledge, mortgage or other disposition of the shares.
"SO ORDERED."40
Pending resolution of the motions relative to the lifting of the writs of sequestration, SMC filed a
Motion for Intervention with attached Complaint-in-Intervention,41 alleging, among other things,
that it had an interest in the matter in dispute between the Republic and defendants CIIF
Companies for being the owner by purchase of a portion (i.e., 25,450,000 SMC shares covered
by Stock Certificate Nos. A0004129 and B0015556 of the so-called "CIIF block of SMC shares
of stock" sought to be recovered as alleged ill-gotten wealth).
Although Cojuangco, et al. interposed no objection to SMC’s intervention, the Republic

opposed,42 averring that the intervention would be improper and was a mere attempt to litigate
anew issues already raised and passed upon by the Supreme Court. COCOFED similarly
opposed SMC’s intervention,43 and Ursua adopted its opposition.
On May 6, 2004, the Sandiganbayan denied SMC’s motion to intervene.44 SMC sought
reconsideration,45 and its motion to that effect was opposed by COCOFED and the Republic.
On May 7, 2004, the Sandiganbyan granted the Republic’s Motion for Judgment on the
Pleadings and/or Partial Summary Judgment (Re: Defendants CIIF Companies, 14 Holding
Companies and COCOFED, et al.) and rendered a Partial Summary Judgment,46 the dispositive
portion of which reads as follows:
WHEREFORE, in view of the foregoing, we hold that:
The Motion for Partial Summary Judgment (Re: Defendants CIIF Companies, 14 Holding
Companies and Cocofed, et al.) filed by Plaintiff is hereby GRANTED. ACCORDINGLY, THE
CIIF COMPANIES, NAMELY:
1. Southern Luzon Coconut Oil Mills (SOLCOM);
2. Cagayan de Oro Oil Co., Inc. (CAGOIL);
3. Iligan Coconut Industries, Inc. (ILICOCO);
4. San Pablo Manufacturing Corp. (SPMC);
5. Granexport Manufacturing Corp. (GRANEX); and
6. Legaspi Oil Co., Inc. (LEGOIL),
AS WELL AS THE 14 HOLDING COMPANIES, NAMELY:
1. Soriano Shares, Inc.;
2. ACS Investors, Inc.;

3. Roxas Shares, Inc.;
4. Arc Investors, Inc.;
5. Toda Holdings, Inc.;
6. AP. Holdings, Inc.;
7. Fernandez Holdings, Inc.;
8. SMC Officers Corps. Inc.;
9. Te Deum Resources, Inc.;
10. Anglo Ventures, Inc.;
11. Randy Allied Ventures, Inc.;
12. Rock Steel Resources, Inc.;
13. Valhalla Properties Ltd., Inc.; and
14. First Meridian Development, Inc.
AND THE CIIF BLOCK OF SAN MIGUEL CORPORATION (SMC) SHARES OF STOCK
TOTALING 33,133,266 SHARES AS OF 1983 TOGETHER WITH ALL DIVIDENDS
DECLARED, PAID AND ISSUED THEREON AS WELL AS ANY INCREMENTS
THERETO ARISING FROM, BUT NOT LIMITED TO, EXERCISE OF PRE-EMPTIVE
RIGHTS ARE DECLARED OWNED BY THE GOVERNMENT IN-TRUST FOR ALL THE
COCONUT FARMERS AND ORDERED RECONVEYED TO THE GOVERNMENT.
Let the trial of this Civil Case proceed with respect to the issues which have not been disposed of
in this partial Summary Judgment, including the determination of whether the CIIF Block of
SMC Shares adjudged to be owned by the Government represents 27% of the issued and
outstanding capital stock of SMC according to plaintiff or 31.3% of said capital stock according
to COCOFED, et al. and Ballares, et al.
SO ORDERED.47
In the same resolution of May 7, 2004, the Sandiganbayan considered the Motions to Dismiss
filed by Cojuangco, et al. on August 2, 2000 and by Enrile on September 4, 2000 as overtaken by
the Republic’s Motion for Judgment on the Pleadings and/or Partial Summary Judgment.48
On May 25, 2004, Cojuangco, et al. filed their Motion for Reconsideration.49
COCOFED filed its so-called Class Action Omnibus Motion: (a) Motion to Dismiss for Lack of
Subject Matter Jurisdiction and Alternatively, (b) Motion for Reconsideration dated May 26,
2004.50
The Republic submitted its Consolidated Comment.51
Relative to the resolution of May 7, 2004, the Sandiganbayan issued its resolution of December
10, 2004,52 denying the Republic’s Motion for Partial Summary Judgment (Re: Shares in San
Miguel Corporation Registered in the Respective Names of Defendants Eduardo M. Cojuangco,
Jr. and the defendant Cojuangco Companies) upon the following reasons:
In the instant case, a circumspect review of the records show that while there are facts which
appear to be undisputed, there are also genuine factual issues raised by the defendants which
need to be threshed out in a full-blown trial. Foremost among these issues are the following:
1) What are the "various sources" of funds, which the defendant Cojuangco and his
companies claim they utilized to acquire the disputed SMC shares?
2) Whether or not such funds acquired from alleged "various sources" can be considered
coconut levy funds;
3) Whether or not defendant Cojuangco had indeed served in the governing bodies of PC,
UCPB and/or CIIF Oil Mills at the time the funds used to purchase the SMC shares were
obtained such that he owed a fiduciary duty to render an account to these entities as well
as to the coconut farmers;
4) Whether or not defendant Cojuangco took advantage of his position and/or close ties
with then President Marcos to obtain favorable concessions or exemptions from the usual
financial requirements from the lending banks and/or coco-levy funded companies, in
order to raise the funds to acquire the disputed SMC shares; and if so, what are these
favorable concessions or exemptions?
Answers to these issues are not evident from the submissions of the plaintiff and must therefore
be proven through the presentation of relevant and competent evidence during trial. A perusal of
the subject Motion shows that the plaintiff hastily derived conclusions from the defendants’
statements in their previous pleadings although such conclusions were not supported by
categorical facts but only mere inferences. In the Reply dated October 2, 2003, the plaintiff
construed the supposed meaning of the phrase "various sources" (referring to the source of
defendant Cojuangco’s funds which were used to acquire the subject SMC shares), which
plaintiff said was quite obvious from the defendants’ admission in his Pre-Trial Brief, which we
quote:
"According to Cojuangco’s own Pre-Trial Brief, these so-called ‘various sources’, i.e., the
sources from which he obtained the funds he claimed to have used in buying the 20% SMC
shares are not in fact ‘various’ as he claims them to be. He says he obtained ‘loans’ from UCPB
and ‘advances’ from the CIIF Oil Mills. He even goes as far as to admit that his only evidence in
this case would have been ‘records of UCPB’ and a ‘representative of the CIIF Oil Mills’
obviously the ‘records of UCPB’ relate to the ‘loans’ that Cojuangco claims to have obtained
from UCPB – of which he was President and CEO – while the ‘representative of the CIIF Oil
Mills’ will obviously testify on the ‘advances’ Cojuangco obtained from CIIF Oil Mills – of
which he was also the President and CEO."
From the foregoing premises, plaintiff went on to conclude that:
"These admissions of defendant Cojuangco are outright admissions that he (1) took money from
the bank entrusted by law with the administration of coconut levy funds and (2) took more
money from the very corporations/oil mills in which part of those coconut levy funds (the CIIF)
was placed – treating the funds of UCPB and the CIIF as his own personal capital to buy ‘his’
SMC shares."
We cannot agree with the plaintiff’s contention that the defendant’s statements in his Pre-Trial
Brief regarding the presentation of a possible CIIF witness as well as UCPB records, can already
be considered as admissions of the defendant’s exclusive use and misuse of coconut levy funds
to acquire the subject SMC shares and defendant Cojuangco’s alleged taking advantage of his
positions to acquire the subject SMC shares. Moreover, in ruling on a motion for summary
judgment, the court "should take that view of the evidence most favorable to the party against
whom it is directed, giving such party the benefit of all inferences." Inasmuch as this issue
cannot be resolved merely from an interpretation of the defendant’s statements in his brief, the
UCPB records must be produced and the CIIF witness must be heard to ensure that the
conclusions that will be derived have factual basis and are thus, valid.
WHEREFORE, in view of the forgoing, the Motion for Partial Summary Judgment dated July
11, 2003 is hereby DENIED for lack of merit.
SO ORDERED.
Thereafter, on December 28, 2004, the Sandiganbayan resolved the other pending motions,53 viz:
WHEREFORE, in view of the foregoing, the Motion for Reconsideration dated May 25, 2004
filed by defendant Eduardo M. Cojuangco, Jr., et al. and the Class Action Omnibus Motion: (a)
Motion to Dismiss for Lack of Subject Matter Jurisdiction and Alternatively, (b) Motion for
Reconsideration dated May 26, 2004 filed by COCOFED, et al. and Ballares, et al. are hereby
DENIED for lack of merit.
SO ORDERED.54
COCOFED moved to set the case for trial,55 but the Republic opposed the motion.56 On their
part, Cojuangco, et al. also moved to set the trial,57 with the Republic similarly opposing the
motion.58
On March 23, 2006, the Sandiganbayan granted the motions to set for trial and set the trial on
August 8, 10, and 11, 2006.59
In the meanwhile, on August 9, 2005, the Republic filed a Motion for Execution of Partial
Summary Judgment (re: CIIF block of SMC Shares of Stock),60 contending that an execution
pending appeal was justified because any appeal by the defendants of the Partial Summary
Judgment would be merely dilatory.
Cojuangco, et al. opposed the motion.61
The Sandiganbayan denied the Republic’s Motion for Execution of Partial Summary Judgment
(re: CIIF block of SMC Shares of Stock),62 to wit:
WHEREFORE, the MOTION FOR EXECUTION OF PARTIAL SUMMARY JUDGMENT

(RE: CIIF BLOCK OF SMC SHARES OF STOCK) dated August 8, 2005 of the plaintiff is
hereby denied for lack of merit. However, this Court orders the severance of this particular claim
of Plaintiff. The Partial Summary Judgment dated May 7, 2004 is now considered a separate
final and appealable judgment with respect to the said CIIF Block of SMC shares of stock.
The Partial Summary Judgment rendered on May 7, 2004 is modified by deleting the last
paragraph of the dispositive portion which will now read, as follows:
WHEREFORE, in view of the foregoing, we hold that:
The Motion for Partial Summary Judgment (Re: Defendants CIIF Companies, 14 Holding
Companies and Cocofed, et al.) filed by Plaintiff is hereby GRANTED. ACCORDINGLY, THE
CIIF COMPANIES, NAMELY:
1. Southern Coconut Oil Mills (SOLCOM);
5. Granexport Manufacturing Corp.
(GRANEX); and
6. Legaspi Oil Co., Inc. (LEGOIL),
2. ACS Investors, Inc.;

6. AP Holdings, Inc.;
8. SMC Officers Corps, Inc.;
13. Valhalla Properties Ltd., Inc.; and
AND THE CIIF BLOCK OF SAN MIGUEL CORPORATION (SMC) SHARES OF STOCK
TOTALING 33,133,266 SHARES AS OF 1983 TOGETHER WITH ALL DIVIDENDS
DECLARED, PAID AND ISSUED THEREON AS WELL AS ANY INCREMENTS
THERETO ARISING FROM, BUT NOT LIMITED TO, EXERCISE OF PRE-EMPTIVE
RIGHTS ARE DECLARED OWNED BY THE GOVERNMENT IN TRUST FOR ALL THE
COCONUT FARMERS AND ORDERED RECONVEYED TO THE GOVERNMENT.
The aforementioned Partial Summary Judgment is now deemed a separate appealable judgment
which finally disposes of the ownership of the CIIF Block of SMC Shares, without prejudice to
the continuation of proceedings with respect to the remaining claims particularly those pertaining
to the Cojuangco, et al. block of SMC shares.
SO ORDERED.63
During the pendency of the Republic’s motion for execution, Cojuangco, et al. filed a Motion for
Authority to Sell San Miguel Corporation (SMC) shares, praying for leave to allow the sale of
SMC shares to proceed, exempted from the conditions set forth in the resolutions promulgated
on October 3, 2003 and June 24, 2005.64 The Republic opposed, contending that the requested
leave to sell would be tantamount to removing jurisdiction over the res or the subject of
litigation.65
However, the Sandiganbayan eventually granted the Motion for Authority to Sell San Miguel
Corporation (SMC) shares.66
Thereafter, Cojuangco, et al. manifested to the Sandiganbayan that the shares would be sold to
the San Miguel Corporation Retirement Plan.67 Ruling on the manifestations of Cojuangco, et al.,
the Sandiganbayan issued its resolution of July 30, 2007 allowing the sale of the shares, to wit:
This notwithstanding however, while the Court exempts the sale from the express condition that
it shall be subject to the outcome of the case, defendants Cojuangco, et al. may well be reminded
that despite the deletion of the said condition, they cannot transfer to any buyer any interest
higher than what they have. No one can transfer a right to another greater than what he himself
has. Hence, in the event that the Republic prevails in the instant case, defendants Cojuangco, et
al. hold themselves liable to their transferees-buyers, especially if they are buyers in good faith
and for value. In such eventuality, defendants Cojuangco, et al. cannot be shielded by the cloak
of principle of caveat emptor because case law has it that this rule only requires the purchaser to
exercise such care and attention as is usually exercised by ordinarily prudent men in like
business affairs, and only applies to defects which are open and patent to the service of one
exercising such care.
Moreover, said defendants Eduardo M. Cojuangco, et al. are hereby ordered to render their report
on the sale within ten (10) days from completion of the payment by the San Miguel Corporation
Retirement Plan.
SO ORDERED.68
Cojuangco, et al. later rendered a complete accounting of the proceeds from the sale of the
Cojuangco block of shares of SMC stock, informing that a total amount of P 4,786,107,428.34
had been paid to the UCPB as loan repayment.69
It appears that the trial concerning the disputed block of shares was not scheduled because the
consideration and resolution of the aforecited motions for summary judgment occupied much of
the ensuing proceedings.
At the hearing of August 8, 2006, the Republic manifested70 that it did not intend to present any
testimonial evidence and asked for the marking of certain exhibits that it would have the
Sandiganbayan take judicial notice of. The Republic was then allowed to mark certain
documents as its Exhibits A to I, inclusive, following which it sought and was granted time
within which to formally offer the exhibits.
On August 31, 2006, the Republic filed its Manifestation of Purposes (Re: Matters Requested or
Judicial Notice on the 20% Shares in San Miguel Corporation Registered in the Respective
Names of defendant Eduardo M. Cojuangco, Jr. and the defendant Cojuangco Companies).71
On September 18, 2006, the Sandiganbayan issued the following resolution,72 to wit:
Acting on the Manifestation of Purposes (Re: Matters Requested or Judicial Notice on the 20%
Shares in San Miguel Corporation Registered in the Respective names of Defendant Eduardo M.
Cojuangco, Jr. and the Defendant Cojuangco Companies) dated 28 August 2006 filed by the
plaintiff, which has been considered its formal offer of evidence, and the Comment of
Defendants Eduardo M. Cojuangco, Jr., et al. on Plaintiff’s "Manifestation of Purposes …"
Dated August 30, 2006 dated September 15, 2006, the court resolves to ADMIT all the exhibits
offered, i.e.:
• Exhibit "A" – the Answer of defendant Eduardo M. Cojuangco, Jr. to the Third
Amended Complaint (Subdivided) dated June 23, 1999, as well as the sub-markings
(Exhibit "A-1" to "A-4";
• Exhibit "B" – the "Pre-Trial Brief dated January 11, 2000 of defendant CIIF Oil Mills
and fourteen (14) CIIF Holding Companies, as well as the sub-markings Exhibits "B-1"
and "B-2"
• Exhibit "C" – the Pre-Trial Brief dated January 11, 2000 of defendant Eduardo M.
Cojuangco, Jr. as well as the sub-markings Exhibits "C-1", "C-1-a" and "C-1-b";
• Exhibit "D" – the Plaintiff’s Motion for Summary Judgment [Re: Shares in San Miguel
Corporation Registered in the Respective Names of Defendant Eduardo M. Cojuangco,
Jr. and the Defendant Cojuangco Companies] dated July 11, 2003, as well as the sub-
markings Exhibits "D-1" to "D-4"
the said exhibits being part of the record of the case, as well as
• Exhibit "E" – Presidential Decree No. 961 dated July 11, 1976;
• Exhibit "F" – Presidential Decree No. 755 dated July 29, 1975;
• Exhibit "G" – Presidential Decree No. 1468 dated June 11, 1978;
• Exhibit "H" – Decision of the Supreme Court in Republic vs. COCOFED, et al., G.R.
Nos. 147062-64, December 14, 2001, 372 SCRA 462
the aforementioned exhibits being matters of public record.
The admission of these exhibits is being made over the objection of the defendants Cojuangco, et
al. as to the relevance thereof and as to the purposes for which they were offered in evidence,
which matters shall be taken into consideration by the Court in deciding the case on the merits.
The trial hereon shall proceed on November 21, 2006, at 8:30 in the morning as previously
scheduled.73
During the hearing on November 24, 2006, Cojuangco, et al. filed their Submission and Offer of
Evidence of Defendants,74 formally offering in evidence certain documents to substantiate their
counterclaims, and informing that they found no need to present countervailing evidence because
the Republic’s evidence did not prove the allegations of the Complaint. On December 5, 2006,
after the Republic submitted its Comment,75 the Sandiganbayan admitted the exhibits offered by
Cojuangco, et al., and granted the parties a non-extendible period within which to file their
respective memoranda and reply-memoranda.
Thereafter, on February 23, 2007, the Sandiganbayan considered the case submitted for
decision.76
ISSUES
The various issues submitted for consideration by the Court are summarized hereunder.
G.R. No. 166859
The Republic came to the Court via petition for certiorari77 to assail the denial of its Motion for
Partial Summary Judgment through the resolution promulgated on December 10, 2004, insisting
that the Sandiganbayan thereby committed grave abuse of discretion: (a) in holding that the
various sources of funds used in acquiring the SMC shares of stock remained disputed; (b) in
holding that it was disputed whether or not Cojuangco had served in the governing bodies of
PCA, UCPB, and/or the CIIF Oil Mills; and (c) in not finding that Cojuangco had taken
advantage of his position and had violated his fiduciary obligations in acquiring the SMC shares
of stock in issue.
The Court will consider and resolve the issues thereby raised alongside the issues presented in
G.R. No. 180702.
G.R. No. 169203
In the resolution promulgated on October 8, 2003, the Sandiganbayan declared as "automatically

lifted for being null and void" nine writs of sequestration (WOS) issued against properties of
Cojuangco and Cojuangco companies, considering that: (a) eight of them (i.e., WOS No. 86-
0062 dated April 21, 1986; WOS No. 86-0069 dated April 22, 1986; WOS No. 86-0085 dated
May 9, 1986; WOS No. 86-0095 dated May 16, 1986; WOS No. 86-0096 dated May 16, 1986;
WOS No. 86-0097 dated May 16, 1986; WOS No. 86-0098 dated May 16, 1986; and WOS No.
87-0218 dated May 27, 1987) had been issued by only one PCGG Commissioner, contrary to the
requirement of Section 3 of the Rules of the PCGG for at least two Commissioners to issue the
WOS; and (b) the ninth (i.e., WOS No. 86-0042 dated April 8, 1986), although issued prior to
the promulgation of the Rules of the PCGG requiring at least two Commissioners to issue the
WOS, was void for being issued without prior determination by the PCGG of a prima facie basis
for sequestration.1avvphi1
Nonetheless, despite its lifting of the nine WOS, the Sandiganbayan prescribed four conditions to
be still "annotated in the relevant corporate books of San Miguel Corporation" considering that
the Republic "continues to hold a claim on the shares which is yet to be resolved."78
In its resolution promulgated on June 24, 2005, the Sandiganbayan denied the Republic’s Motion
for Reconsideration filed vis-a-vis the resolution promulgated on October 8, 2003, but reduced
the conditions earlier imposed to only two.79
On September 1, 2005, the Republic filed a petition for certiorari80 to annul the resolutions
promulgated on October 8, 2003 and on June 24, 2005 on the ground that the Sandiganbayan had
thereby committed grave abuse of discretion:
I.
XXX IN LIFTING WRIT OF SEQUESTRATION NOS. 86-0042 AND 87-0218 DESPITE

EXISTENCE OF THE BASIC REQUISITES FOR THE VALIDITY OF SEQUESTRATION.
II.
XXX WHEN IT DENIED PETITIONER’S ALTERNATIVE PRAYER IN ITS MOTION FOR

RECONSIDERATION FOR THE ISSUANCE OF AN ORDER OF SEQUESTRATION
AGAINST ALL THE SUBJECT SHARES OF STOCK IN ACCORDNCE WITH THE
RULING IN REPUBLIC VS. SANDIGANBAYAN, 258 SCRA 685 (1996).
III.
XXX IN SUBSEQUENTLY DELETING THE LAST TWO (2) CONDITIONS WHICH IT

EARLIER IMPOSED ON THE SUBJECT SHARES OF STOCK.81
G.R. No. 180702
On November 28, 2007, the Sandiganbayan promulgated its decision,82 decreeing as follows:
WHEREFORE, in view of all the foregoing, the Court is constrained to DISMISS, as it hereby
DISMISSES, the Third Amended Complaint in subdivided Civil Case No. 0033-F for failure of
plaintiff to prove by preponderance of evidence its causes of action against defendants with
respect to the twenty percent (20%) outstanding shares of stock of San Miguel Corporation
registered in defendants’ names, denominated herein as the "Cojuangco, et al. block" of SMC
shares. For lack of satisfactory warrant, the counterclaims in defendants’ Answers are likewise
ordered dismissed.
SO ORDERED.
Hence, the Republic appeals, positing:
I.
COCONUT LEVY FUNDS ARE PUBLIC FUNDS. THE SMC SHARES, WHICH
WERE ACQUIRED BY RESPONDENTS COJUANGCO, JR. AND THE
COJUANGCO COMPANIES WITH THE USE OF COCONUT LEVY FUNDS – IN
VIOLATION OF RESPONDENT COJUANGCO, JR.’S FIDUCIARY OBLIGATION –
ARE, NECESSARILY, PUBLIC IN CHARACTER AND SHOULD BE
RECONVEYED TO THE GOVERNMENT.
II.
PETITIONER HAS CLEARLY DEMONSTRATED ITS ENTITLEMENT, AS A

MATTER OF LAW, TO THE RELIEFS PRAYED FOR.83
and urging the following issues to be resolved, to wit:
I.
WHETHER THE HONORABLE SANDIGANBAYAN COMMITTED A

REVERSIBLE ERROR WHEN IT DISMISSED CIVIL CASE NO. 0033-F; AND
II.
WHETHER OR NOT THE SUBJECT SHARES IN SMC, WHICH WERE ACQUIRED

BY, AND ARE IN THE RESPECTIVE NAMES OF RESPONDENTS COJUANGCO,
JR. AND THE COJUANGCO COMPANIES, SHOULD BE RECONVEYED TO THE
REPUBLIC OF THE PHILIPPINES FOR HAVING BEEN ACQUIRED USING
COCONUT LEVY FUNDS.84
On their part, the petitioners-in-intervention85 submit the following issues, to wit:
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED THE
CASE A QUO IN VIOLATION OF LAW AND APPLICABLE RULINGS OF THE
HONORABLE COURT IN RULING THAT, WHILE ADMITTEDLY THE SUBJECT
SMC SHARES WERE PURCHASED FROM LOAN PROCEEDS FROM UCPB AND
ADVANCES FROM THE CIIF OIL MILLS, SAID SUBJECT SMC SHARES ARE
NOT PUBLIC PROPERTY
II
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED THE
CASE A QUO IN VIOLATION OF LAW AND APPLICABLE RULINGS OF THE
HONORABLE COURT IN FAILING TO RULE THAT, EVEN ASSUMING FOR THE
SAKE OF ARGUMENT THAT LOAN PROCEEDS FROM UCPB ARE NOT PUBLIC
FINDS, STILL, SINCE RESPONDENT COJUANGCO, IN THE PURCHASE OF THE
SUBJECT SMC SHARES FROM SUCH LOAN PROCEEDS, VIOLATED HIS
FIDUCIARY DUTIES AND TOOK A COMMERCIAL OPPORTUNITY THAT
RIGHTFULLY BELONGED TO UCPB (A PUBLIC CORPORATION), THE
SUBJECT SMC SHARES SHOULD REVERT BACK TO THE GOVERNMENT.
RULING
We deny all the petitions of the Republic.

I
Lifting of nine WOS for violation of PCGG Rules

did not constitute grave abuse of discretion
Through its resolution promulgated on June 24, 2005, assailed on certiorari in G.R. No. 169203,
the Sandiganbayan lifted the nine WOS for the following reasons, to wit:
Having studied the antecedent facts, this Court shall now resolve the pending incidents especially
defendants’ "Motion to Affirm that the Writs or Orders of Sequestration Issued on Defendants’
Properties Were Unauthorized, Invalid and Never Became Effective" dated March 5, 1999.
Section 3 of the PCGG Rules and Regulations promulgated on April 11, 1986, provides:
"Sec. 3. Who may issue. – A writ of sequestration or a freeze or hold order may be issued by the
Commission upon the authority of at least two Commissioners, based on the affirmation or
complaint of an interested party or motu propio (sic) the issuance thereof is warranted."
In this present case, of all the questioned writs of sequestration issued after the effectivity of the
PCGG Rules and Regulations or after April 11, 1986, only writ no. 87-0218 issued on May 27,
1987 complied with the requirement that it be issued by at least two Commissioners, the same
having been issued by Commissioners Ramon E. Rodrigo and Quintin S. Doromal. However,
even if Writ of Sequestration No. 87-0218 complied with the requirement that the same be issued
by at least two Commissioners, the records fail to show that it was issued with factual basis or
with factual foundation as can be seen from the Certification of the Commission Secretary of the
PCGG of the excerpt of the minutes of the meeting of the PCGG held on May 26, 1987, stating
therein that:
"The Commission approved the recommendation of Dir. Cruz to sequester all the shares of stock,
assets, records, and documents of Balete Ranch, Inc. and the appointment of the Fiscal
Committee with ECI Challenge, Inc./Pepsi-Cola for Balete Ranch, Inc. and the Aquacor
Marketing Corp. vice Atty. S. Occena. The objective is to consolidate the Fiscal Committee
activities covering three associated entities of Mr. Eduardo Cojuangco.Upon recommendation of
Comm. Rodrigo, the reconstitution of the Board of Directors of the three companies was deferred
for further study."
Nothing in the above-quoted certificate shows that there was a prior determination of a factual
basis or factual foundation. It is the absence of a prima facie basis for the issuance of a writ of
sequestration and not the lack of authority of two (2) Commissioners which renders the said writ
void ab initio. Thus, being the case, Writ of Sequestration No. 87-0218 must be automatically
lifted.
As declared by the Honorable Supreme Court in two cases it has decided,

"The absence of a prior determination by the PCGG of a prima facie basis for the sequestration
order is, unavoidably, a fatal defect which rendered the sequestration of respondent corporation
and its properties void ab initio." And
"The corporation or entity against which such writ is directed will not be able to visually
determine its validity, unless the required signatures of at least two commissioners authorizing its
issuance appear on the very document itself. The issuance of sequestration orders requires the
existence of a prima facie case. The two –commissioner rule is obviously intended to assure a
collegial determination of such fact. In this light, a writ bearing only one signature is an obvious
transgression of the PCGG Rules."
Consequently, the writs of sequestration nos. 86-0062, 86-0069, 86-0085, 86-0095, 86-0096, 86-
0097 and 86-0098 must be lifted for not having complied with the pertinent provisions of the
PCGG Rules and Regulations, all of which were issued by only one Commissioner and after
April 11, 1986 when the PCGG Rules and Regulations took effect, an utter disregard of the
PCGG’s Rules and Regulations. The Honorable Supreme Court has stated that:
"Obviously, Section 3 of the PCGG Rules was intended to protect the public from improvident,
reckless and needless sequestrations of private property. And since these Rules were issued by
Respondent Commission, it should be the first entity to observe them."
Anent the writ of sequestration no. 86-0042 which was issued on April 8, 1986 or prior to the
promulgation of the PCGG Rules and Regulations on April 11, 1986, the same cannot be
declared void on the ground that it was signed by only one Commissioner because at the time it
was issued, the Rules and Regulations of the PCGG were not yet in effect. However, it again
appears that there was no prior determination of the existence of a prima facie basis or factual
foundation for the issuance of the said writ. The PCGG, despite sufficient time afforded by this
Court to show that a prima facie basis existed prior to the issuance of Writ No. 86-0042, failed to
do so. Nothing in the records submitted by the PCGG in compliance of the Resolutions and
Order of this Court would reveal that a meeting was held by the Commission for the purpose of
determining the existence of a prima facie evidence prior to its issuance. In a case decided by the
Honorable Supreme Court, wherein it involved a writ of sequestration issued by the PCGG on
March 19, 1986 against all assets, movable and immovable, of Provident International Resources
Corporation and Philippine Casino Operators Corporation, the Honorable Supreme Court
enunciated:
"The questioned sequestration order was, however issued on March 19, 1986, prior to the
promulgation of the PCGG Rules and Regulations. As a consequence, we cannot reasonably
expect the commission to abide by said rules, which were nonexistent at the time the subject writ
was issued by then Commissioner Mary Concepcion Bautista. Basic is the rule that no statute,
decree, ordinance, rule or regulation (and even policies) shall be given retrospective effect unless
explicitly stated so. We find no provision in said Rules which expressly gives them retroactive
effect, or implies the abrogation of previous writs issued not in accordance with the same Rules.
Rather, what said Rules provide is that they "shall be effective immediately," which in legal
parlance, is understood as "upon promulgation". Only penal laws are given retroactive effect
insofar as they favor the accused.
We distinguish this case from Republic vs. Sandiganbayan, Romualdez and Dio Island Resort,
G.R. No. 88126, July 12, 1996 where the sequestration order against Dio Island Resort, dated
April 14, 1986, was prepared, issued and signed not by two commissioners of the PCGG, but by
the head of its task force in Region VIII. In holding that said order was not valid since it was not
issued in accordance with PCGG Rules and Regulations, we explained:
"(Sec. 3 of the PCGG Rules and Regulations), couched in clear and simple language, leaves no
room for interpretation. On the basis thereof, it is indubitable that under no circumstances can a
sequestration or freeze order be validly issued by one not a commissioner of the PCGG.
xxx xxx xxx
Even assuming arguendo that Atty. Ramirez had been given prior authority by the PCGG to
place Dio Island Resort under sequestration, nevertheless, the sequestration order he issued is
still void since PCGG may not delegate its authority to sequester to its representatives and
subordinates, and any such delegation is valid and ineffective."
We further said:
"In the instant case, there was clearly no prior determination made by the PCGG of a prima facie
basis for the sequestration of Dio Island Resort, Inc. x x x
xxx xxx xxx
The absence of a prior determination by the PCGG of a prima facie basis for the sequestration
order is, unavoidably, a fatal defect which rendered the sequestration of respondent corporation
and its properties void ab initio. Being void ab initio, it is deemed nonexistent, as though it had
never been issued, and therefore is not subject to ratification by the PCGG.
What were obviously lacking in the above case were the basic requisites for the validity of a
sequestration order which we laid down in BASECO vs. PCGG, 150 SCRA 181, 216, May 27,
1987, thus:
"Section (3) of the Commission’s Rules and regulations provides that sequestration or freeze
(and takeover) orders issue upon the authority of at least two commissioners, based on the
affirmation or complaint of an interested party, or motu propio (sic) when the Commission has
reasonable grounds to believe that the issuance thereof is warranted."
In the case at bar, there is no question as to the presence of prima facie evidence justifying the
issuance of the sequestration order against respondent corporations. But the said order cannot be
nullified for lack of the other requisite (authority of at least two commissioners) since, as
explained earlier, such requisite was nonexistent at the time the order was issued."
As to the argument of the Plaintiff Republic that Defendants Cojuangco, et al. have not shown
any contrary prima facie proof that the properties subject matter of the writs of sequestration
were legitimate acquisitions, the same is misplaced. It is a basic legal doctrine, as well as many
times enunciated by the Honorable Supreme Court that when a prima facie proof is required in
the issuance of a writ, the party seeking such extraordinary writ must establish that it is entitled
to it by complying strictly with the requirements for its issuance and not the party against whom
the writ is being sought for to establish that the writ should not be issued against it.
According to the Republic, the Sandiganbayan thereby gravely abused its discretion in: (a) in
lifting WOS No. 86-0042 and No. 87-0218 despite the basic requisites for the validity of
sequestration being existent; (b) in denying the Republic’s alternative prayer for the issuance of
an order of sequestration against all the subject shares of stock in accordance with the ruling in
Republic v. Sandiganbayan, 258 SCRA 685, as stated in its Motion For Reconsideration; and (c)
in deleting the last two conditions the Sandiganbayan had earlier imposed on the subject shares
of stock.
We sustain the lifting of the nine WOS for the reasons made extant in the assailed resolution of
October 8, 2003, supra.
Section 3 of the Rules of the PCGG, promulgated on April 11, 1986, provides:
Section 3. Who may issue. – A writ of sequestration or a freeze or hold order may be issued by
the Commission upon the authority of at least two Commissioners, based on the affirmation or
complaint of an interested party or motu proprio when the Commission has reasonable grounds
to believe that the issuance thereof is warranted.
Conformably with Section 3, supra, WOS No. 86-0062 dated April 21, 1986; WOS No. 86-0069
dated April 22, 1986; WOS No. 86-0085 dated May 9, 1986; WOS No. 86-0095 dated May 16,
1986; WOS No. 86-0096 dated May 16, 1986; WOS No. 86-0097 dated May 16, 1986; and
WOS No. 86-0098 dated May 16, 1986 were lawfully and correctly nullified considering that
only one PCGG Commissioner had issued them.
Similarly, WOS No. 86-0042 dated April 8, 1986 and WOS No. 87-0218 dated May 27, 1987
were lawfully and correctly nullified ̶ notwithstanding that WOS No. 86-0042, albeit signed by
only one Commissioner (i.e., Commissioner Mary Concepcion Bautista), was not at the time of
its issuance subject to the two-Commissioners rule, and WOS No. 87-0218, albeit already issued
under the signatures of two Commissioners ̶ considering that both had been issued without a
prior determination by the PCGG of a prima facie basis for the sequestration.
Plainly enough, the irregularities infirming the issuance of the several WOS could not be ignored
in favor of the Republic and resolved against the persons whose properties were subject of the
WOS. Where the Rules of the PCGG instituted safeguards under Section 3, supra, by requiring
the concurrent signatures of two Commissioners to every WOS issued and the existence of a
prima facie case of ill gotten wealth to support the issuance, the non-compliance with either of
the safeguards nullified the WOS thus issued. It is already settled that sequestration, due to its
tendency to impede or limit the exercise of proprietary rights by private citizens, is construed
strictly against the State, conformably with the legal maxim that statutes in derogation of
common rights are generally strictly construed and rigidly confined to the cases clearly within
their scope and purpose.86
Consequently, the nullification of the nine WOS, being in implementation of the safeguards the
PCGG itself had instituted, did not constitute any abuse of its discretion, least of all grave, on the
part of the Sandiganbayan.
Nor did the Sandiganbayan gravely abuse its discretion in reducing from four to only two the
conditions imposed for the lifting of the WOS. The Sandiganbayan thereby acted with the best of
intentions, being all too aware that the claim of the Republic to the sequestered assets and
properties might be prejudiced or harmed pendente lite unless the protective conditions were
annotated in the corporate books of SMC. Moreover, the issue became academic following the
Sandiganbayan’s promulgation of its decision dismissing the Republic’s Amended Complaint,
which thereby removed the stated reason – "the Republic continues to hold a claim on the shares
which is yet to be resolved" – underlying the need for the annotation of the conditions (whether
four or two).
II
The Concept and Genesis of

Ill-Gotten Wealth in the Philippine Setting
A brief review of the Philippine law and jurisprudence pertinent to ill-gotten wealth should
furnish an illuminating backdrop for further discussion.
In the immediate aftermath of the peaceful 1986 EDSA Revolution, the administration of
President Corazon C. Aquino saw to it, among others, that rules defining the authority of the
government and its instrumentalities were promptly put in place. It is significant to point out,
however, that the administration likewise defined the limitations of the authority.
The first official issuance of President Aquino, which was made on February 28, 1986, or just
two days after the EDSA Revolution, was Executive Order (E.O.) No. 1, which created the
Presidential Commission on Good Government (PCGG). Ostensibly, E.O. No. 1 was the first
issuance in light of the EDSA Revolution having come about mainly to address the pillage of the
nation’s wealth by President Marcos, his family, and cronies.
E.O. No. 1 contained only two WHEREAS Clauses, to wit:
WHEREAS, vast resources of the government have been amassed by former President Ferdinand
E. Marcos, his immediate family, relatives, and close associates both here and abroad;
WHEREAS, there is an urgent need to recover all ill-gotten wealth;87
Paragraph (4) of E.O. No. 288 further required that the wealth, to be ill-gotten, must be "acquired
by them through or as a result of improper or illegal use of or the conversion of funds belonging
to the Government of the Philippines or any of its branches, instrumentalities, enterprises, banks
or financial institutions, or by taking undue advantage of their official position, authority,
relationship, connection or influence to unjustly enrich themselves at the expense and to the
grave damage and prejudice of the Filipino people and the Republic of the Philippines."
Although E.O. No. 1 and the other issuances dealing with ill-gotten wealth (i.e., E.O. No. 2, E.O.
No. 14, and E.O. No. 14-A) only identified the subject matter of ill-gotten wealth and the persons
who could amass ill-gotten wealth and did not include an explicit definition of ill-gotten wealth,
we can still discern the meaning and concept of ill-gotten wealth from the WHEREAS Clauses
themselves of E.O. No. 1, in that ill-gotten wealth consisted of the "vast resources of the
government" amassed by "former President Ferdinand E. Marcos, his immediate family, relatives
and close associates both here and abroad." It is clear, therefore, that ill-gotten wealth would not
include all the properties of President Marcos, his immediate family, relatives, and close
associates but only the part that originated from the "vast resources of the government."
In time and unavoidably, the Supreme Court elaborated on the meaning and concept of ill-gotten
wealth. In Bataan Shipyard & Engineering Co., Inc. v. Presidential Commission on Good
Government,89 or BASECO, for the sake of brevity, the Court held that:
xxx until it can be determined, through appropriate judicial proceedings, whether the property
was in truth "ill-gotten," i.e., acquired through or as a result of improper or illegal use of or the
conversion of funds belonging to the Government or any of its branches, instrumentalities,
enterprises, banks or financial institutions, or by taking undue advantage of official position,
authority, relationship, connection or influence, resulting in unjust enrichment of the ostensible
owner and grave damage and prejudice to the State. And this, too, is the sense in which the term
is commonly understood in other jurisdictions.90
The BASECO definition of ill-gotten wealth was reiterated in Presidential Commission on Good
Government v. Lucio C. Tan,91 where the Court said:
On this point, we find it relevant to define "ill-gotten wealth." In Bataan Shipyard and
Engineering Co., Inc., this Court described "ill-gotten wealth" as follows:
"Ill-gotten wealth is that acquired through or as a result of improper or illegal use of or the
conversion of funds belonging to the Government or any of its branches, instrumentalities,
enterprises, banks or financial institutions, or by taking undue advantage of official position,
authority, relationship, connection or influence, resulting in unjust enrichment of the ostensible
owner and grave damage and prejudice to the State. And this, too, is the sense in which the term
is commonly understood in other jurisdiction."
Concerning respondents’ shares of stock here, there is no evidence presented by petitioner that
they belong to the Government of the Philippines or any of its branches, instrumentalities,
enterprises, banks or financial institutions. Nor is there evidence that respondents, taking undue
advantage of their connections or relationship with former President Marcos or his family,
relatives and close associates, were able to acquire those shares of stock.
Incidentally, in its 1998 ruling in Chavez v. Presidential Commission on Good Government,92

the Court rendered an identical definition of ill-gotten wealth, viz:
xxx. We may also add that ‘ill-gotten wealth’, by its very nature, assumes a public character.
Based on the aforementioned Executive Orders, ‘ill-gotten wealth’ refers to assets and properties
purportedly acquired, directly or indirectly, by former President Marcos, his immediate family,
relatives and close associates through or as a result of their improper or illegal use of
government funds or properties; or their having taken undue advantage of their public
office; or their use of powers, influence or relationships, "resulting in their unjust enrichment
and causing grave damage and prejudice to the Filipino people and the Republic of the
Philippines." Clearly, the assets and properties referred to supposedly originated from the
government itself. To all intents and purposes, therefore, they belong to the people. As
such, upon reconveyance they will be returned to the public treasury, subject only to the
satisfaction of positive claims of certain persons as may be adjudged by competent courts.
Another declared overriding consideration for the expeditious recovery of ill-gotten wealth is
that it may be used for national economic recovery.
All these judicial pronouncements demand two concurring elements to be present before assets
or properties were considered as ill-gotten wealth, namely: (a) they must have "originated from
the government itself," and (b) they must have been taken by former President Marcos, his
immediate family, relatives, and close associates by illegal means.
But settling the sources and the kinds of assets and property covered by E.O. No. 1 and related
issuances did not complete the definition of ill-gotten wealth. The further requirement was that
the assets and property should have been amassed by former President Marcos, his immediate
family, relatives, and close associates both here and abroad. In this regard, identifying former
President Marcos, his immediate family, and relatives was not difficult, but identifying other
persons who might be the close associates of former President Marcos presented an inherent
difficulty, because it was not fair and just to include within the term close associates everyone
who had had any association with President Marcos, his immediate family, and relatives.
Again, through several rulings, the Court became the arbiter to determine who were the close
associates within the coverage of E.O. No. 1.
In Republic v. Migriño,93 the Court held that respondents Migriño, et al. were not necessarily
among the persons covered by the term close subordinate or close associate of former President
Marcos by reason alone of their having served as government officials or employees during the
Marcos administration, viz:
It does not suffice, as in this case, that the respondent is or was a government official or
employee during the administration of former Pres. Marcos. There must be a prima facie
showing that the respondent unlawfully accumulated wealth by virtue of his close
association or relation with former Pres. Marcos and/or his wife. This is so because
otherwise the respondent’s case will fall under existing general laws and procedures on the
matter. xxx
In Cruz, Jr. v. Sandiganbayan,94 the Court declared that the petitioner was not a close associate as
the term was used in E.O. No. 1 just because he had served as the President and General
Manager of the GSIS during the Marcos administration.
In Republic v. Sandiganbayan,95 the Court stated that respondent Maj. Gen. Josephus Q. Ramas’
having been a Commanding General of the Philippine Army during the Marcos administration
"d[id] not automatically make him a subordinate of former President Ferdinand Marcos as this
term is used in Executive Order Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close
association with former President Marcos."
It is well to point out, consequently, that the distinction laid down by E.O. No. 1 and its related
issuances, and expounded by relevant judicial pronouncements unavoidably required competent
evidentiary substantiation made in appropriate judicial proceedings to determine: (a) whether the
assets or properties involved had come from the vast resources of government, and (b) whether
the individuals owning or holding such assets or properties were close associates of President
Marcos. The requirement of competent evidentiary substantiation made in appropriate judicial
proceedings was imposed because the factual premises for the reconveyance of the assets or
properties in favor of the government due to their being ill-gotten wealth could not be simply
assumed. Indeed, in BASECO,96 the Court made this clear enough by emphatically observing:
6. Government’s Right and Duty to Recover All Ill-gotten Wealth
There can be no debate about the validity and eminent propriety of the Government’s plan "to
recover all ill-gotten wealth."
Neither can there be any debate about the proposition that assuming the above described factual
premises of the Executive Orders and Proclamation No. 3 to be true, to be demonstrable by
competent evidence, the recovery from Marcos, his family and his minions of the assets and
properties involved, is not only a right but a duty on the part of Government.
But however plain and valid that right and duty may be, still a balance must be sought with the
equally compelling necessity that a proper respect be accorded and adequate protection assured,
the fundamental rights of private property and free enterprise which are deemed pillars of a free
society such as ours, and to which all members of that society may without exception lay claim.
xxx Democracy, as a way of life enshrined in the Constitution, embraces as its necessary
components freedom of conscience, freedom of expression, and freedom in the pursuit of
happiness. Along with these freedoms are included economic freedom and freedom of enterprise
within reasonable bounds and under proper control. xxx Evincing much concern for the
protection of property, the Constitution distinctly recognizes the preferred position which real
estate has occupied in law for ages. Property is bound up with every aspect of social life in a
democracy as democracy is conceived in the Constitution. The Constitution realizes the
indispensable role which property, owned in reasonable quantities and used legitimately, plays in
the stimulation to economic effort and the formation and growth of a solid social middle class
that is said to be the bulwark of democracy and the backbone of every progressive and happy
country.
a. Need of Evidentiary Substantiation in Proper Suit

Consequently, the factual premises of the Executive Orders cannot simply be assumed. They will
have to be duly established by adequate proof in each case, in a proper judicial proceeding, so
that the recovery of the ill-gotten wealth may be validly and properly adjudged and
consummated; although there are some who maintain that the fact — that an immense fortune,
and "vast resources of the government have been amassed by former President Ferdinand E.
Marcos, his immediate family, relatives, and close associates both here and abroad," and they
have resorted to all sorts of clever schemes and manipulations to disguise and hide their illicit
acquisitions — is within the realm of judicial notice, being of so extensive notoriety as to
dispense with proof thereof. Be this as it may, the requirement of evidentiary substantiation has
been expressly acknowledged, and the procedure to be followed explicitly laid down, in
Executive Order No. 14. 97
Accordingly, the Republic should furnish to the Sandiganbayan in proper judicial proceedings
the competent evidence proving who were the close associates of President Marcos who had
amassed assets and properties that would be rightly considered as ill-gotten wealth.
III.
Summary Judgment was not warranted;
The Republic should have adduced evidence

to substantiate its allegations against the Respondents
We affirm the decision of November 28, 2007, because the Republic did not discharge its burden
as the plaintiff to establish by preponderance of evidence that the respondents’ SMC shares were
illegally acquired with coconut-levy funds.
The decision of November 28, 2007 fully explained why the Sandiganbayan dismissed the
Republic’s case against Cojuangco, et al., viz:
Going over the evidence, especially the laws, i.e., P.D. No. 961, P.D. No. 755, and P.D. No.
1468, over which plaintiff prayed that Court to take judicial notice of, it is worth noting that
these same laws were cited by plaintiff when it filed its motion for judgment on the pleadings
and/or summary judgment regarding the CIIF block of SMC shares of stock. Thus, the Court has
already passed upon the same laws when it arrived at judgment determining ownership of the
CIIF block of SMC shares of stock. Pertinently, in the Partial Summary Judgment promulgated
on May 7, 2004, the Court gave the following rulings finding certain provisions of the above-
cited laws to be constitutionally infirmed, thus:
In this case, Section 2(d) and Section 9 and 10, Article III, of P.D. Nos. 961 and 1468 mandated
the UCPB to utilize the CIIF, an accumulation of a portion of the CCSF and the CIDF, for
investment in the form of shares of stock in corporations organized for the purpose of engaging
in the establishment and the operation of industries and commercial activities and other allied
business undertakings relating to coconut and other palm oils industry in all aspects. The
investments made by UCPB in CIIF companies are required by the said Decrees to be equitably
distributed for free by the said bank to the coconut farmers (Sec. 10, P.D. No. 961 and Sec. 10,
P.D. No. 1468). The public purpose sought to be served by the free distribution of the shares of
stock acquired with the use of public funds is not evident in the laws mentioned. More
specifically, it is not clear how private ownership of the shares of stock acquired with public
funds can serve a public purpose. The mode of distribution of the shares of stock also left much
room for the diversion of assets acquired through public funds into private uses or to serve
directly private interests, contrary to the Constitution. In the said distribution, defendants
COCOFED, et al. and Ballares, et al. admitted that UCPB followed the administrative issuances
of PCA which we found to be constitutionally objectionable in our Partial Summary Judgment in
Civil Case No. 0033-A, the pertinent portions of which are quoted hereunder:
xxx xxx xxx
The distribution for free of the shares of stock of the CIIF Companies is tainted with the above-
mentioned constitutional infirmities of the PCA administrative issuances. In view of the
foregoing, we cannot consider the provision of P.D. No. 961 and P.D. No. 1468 and the
implementing regulations issued by the PCA as valid legal basis to hold that assets acquired with
public funds have legitimately become private properties.
The CIIF Companies having been acquired with public funds, the 14 CIIF-owned Holding
Companies and all their assets, including the CIIF Block of SMC Shares, being public in
character, belong to the government. Even granting that the 14 Holding Companies acquired the
SMC Shares through CIIF advances and UCPB loans, said advances and loans are still the
obligations of the said companies. The incorporating equity or capital of the 14 Holding
Companies, which were allegedly used also for the acquisition of the subject SMC shares, being
wholly owned by the CIIF Companies, likewise form part of the coconut levy funds, and thus
belong to the government in trust for the ultimate beneficiaries thereof, which are all the coconut
farmers.
xxx xxx xxx
And, with the above-findings of the Court, the CIIF block of SMC shares were subsequently
declared to be of public character and should be reconveyed to the government in trust for
coconut farmers. The foregoing findings notwithstanding, a question now arises on whether the
same laws can likewise serve as ultimate basis for a finding that the Cojuangco, et al. block of
SMC shares are also imbued with public character and should rightfully be reconveyed to the
government.
On this point, the Court disagrees with plaintiff that reliance on said laws would suffice to prove
that defendants Cojuangco, et al.’s acquisition of SMC shares of stock was illegal as public funds
were used. For one, plaintiff’s reliance thereon has always had reference only to the CIIF block
of shares, and the Court has already settled the same by going over the laws and quoting related
findings in the Partial Summary judgment rendered in Civil Case No. 0033-A. For another, the
allegations of plaintiff pertaining to the Cojuangco block representing twenty percent (20%) of
the outstanding capital stock of SMC stress defendant Cojuangco’s acquisition by virtue of his
positions as Chief Executive Officer of UCPB, a member-director of the Philippine Coconut
Authority (PCA) Governing Board, and a director of the CIIF Oil Mills. Thus, reference to the
said laws would not settle whether there was abuse on the part of defendants Cojuangco, et al. of
their positions to acquire the SMC shares. 98
Besides, in the Resolution of the Court on plaintiff’s Motion for Parial Summary Judgment (Re:
Shares in San Miguel Corporation Registered in the Respective Names of Defendants Eduardo
M. Cojuangco, Jr. and the defendant Cojuangco Companies), the Court already rejected
plaintiff’s reference to said laws. In fact, the Court declined to grant plaintiff’s motion for partial
summary judgment because it simply contended that defendant Cojuangco’s statements in his
pleadings, which plaintiff again offered in evidence herein, regarding the presentation of a
possible CIIF witness as well as UCPB records can already be considered admissions of
defendants’ exclusive use and misuse of coconut levy funds. In the said resolution, the Court
already reminded plaintiff that the issues cannot be resolved by plaintiff’s interpretation of
defendant Cojuangco’s statements in his brief. Thus, the substantial portion of the Resolution of
the Court denying plaintiff’s motion for partial summary judgment is again quoted for emphasis:
99
We cannot agree with the plaintiff’s contention that the defendant’s statements in his Pre-Trial
positions to acquire the subject SMC shares. Moreover, in ruling on a motion for summary
judgment, the court "should take that view of the evidence most favorable to the party against
whom it is directed, giving such party the benefit of all favorable inferences." Inasmuch as this
issue cannot be resolved merely from an interpretation of the defendant’s statements in his brief,
the UCPB records must be produced and the CIIF witness must be heard to ensure that the
conclusions that will be derived have factual basis and are thus, valid. 100
WHEREFORE, in view of the foregoing, the Motion for Partial Summary Judgment dated July
11, 2003 is hereby DENIED for lack of merit.
SO ORDERED.
(Emphasis supplied)
Even assuming that, as plaintiff prayed for, the Court takes judicial notice of the evidence it
offered with respect to the Cojuangco block of SMC shares of stock, as contained in plaintiff’s
manifestation of purposes, still its evidence do not suffice to prove the material allegations in the
complaint that Cojuangco took advantage of his positions in UCPB and PCA in order to acquire
the said shares. As above-quoted, the Court, itself, has already ruled, and hereby stress that
"UCPB records must be produced and the CIIF witness must be heard to ensure that the
conclusions that will be derived have factual basis and are thus, valid." Besides, the Court found
that there are genuine factual issues raised by defendants that need to be threshed out in a full-
blown trial, and which plaintiff had the burden to substantially prove. Thus, the Court outlined
these genuine factual issues as follows:
1) What are the "various sources" of funds, which defendant Cojuangco and his
coconut levy funds;
3) Whether or not defendant Cojuangco had indeed served in the governing bodies of
PCA, UCPB and/or CIIF Oil Mills at the time the funds used to purchase the SMC shares
were obtained such that he owed a fiduciary duty to render an account to these entities as
well as to the coconut farmers;
4) Whether or not defendant Cojuangco took advantage of his position and/or close ties
favorable concessions or exemptions?101
Answers to these issues are not evident from the submissions of plaintiff and must therefore be
proven through the presentation of relevant and competent evidence during trial. A perusal of the
subject Motion shows that the plaintiff hastily derived conclusions from the defendants’
statements in their previous pleadings although such conclusions were not supported by
categorical facts but only mere inferences. xxx xxx xxx." (Emphasis supplied) 102
Despite the foregoing pronouncement of the Court, plaintiff did not present any other evidence
during the trial of this case but instead made its manifestation of purposes, that later served as its
offer of evidence in the instant case, that merely used the same evidence it had already relied
upon when it moved for partial summary judgment over the Cojuangco block of SMC shares.
Altogether, the Court finds the same insufficient to prove plaintiff’s allegations in the complaint
because more than judicial notices, the factual issues require the presentation of admissible,
competent and relevant evidence in accordance with Sections 3 and 4, Rule 128 of the Rules on
Evidence.
Moreover, the propriety of taking judicial notice of plaintiff’s exhibits is aptly questioned by
defendants Cojuangco, et al. Certainly, the Court can take judicial notice of laws pertaining to
the coconut levy funds as well as decisions of the Supreme Court relative thereto, but taking
judicial notice does not mean that the Court would accord full probative value to these exhibits.
Judicial notice is based upon convenience and expediency for it would certainly be superfluous,
inconvenient, and expensive both to parties and the court to require proof, in the ordinary way, of
facts which are already known to courts. However, a court cannot take judicial notice of a factual
matter in controversy. Certainly, there are genuine factual matters in the instant case, as above-
cited, which plaintiff ought to have proven with relevant and competent evidence other than the
exhibits it offered.
Referring to plaintiff’s causes of action against defendants Cojuangco, et al., the Court finds its
evidence insufficient to prove that the source of funds used to purchase SMC shares indeed came
from coconut levy funds. In fact, there is no direct link that the loans obtained by defendant
Cojuangco, Jr. were the same money used to pay for the SMC shares. The scheme alleged to
have been taken by defendant Cojuangco, Jr. was not even established by any paper trail or
testimonial evidence that would have identified the same. On account of his positions in the
UCPB, PCA and the CIIF Oil Mills, the Court cannot conclude that he violated the fiduciary
obligations of the positions he held in the absence of proof that he was so actuated and that he
abused his positions.103
It was plain, indeed, that Cojuangco, et al. had tendered genuine issues through their responsive
pleadings and did not admit that the acquisition of the Cojuangco block of SMC shares had been
illegal, or had been made with public funds. As a result, the Republic needed to establish its
allegations with preponderant competent evidence, because, as earlier stated, the fact that
property was ill gotten could not be presumed but must be substantiated with competent proof
adduced in proper judicial proceedings. That the Republic opted not to adduce competent
evidence thereon despite stern reminders and warnings from the Sandiganbayan to do so
revealed that the Republic did not have the competent evidence to prove its allegations against
Cojuangco, et al.
Still, the Republic, relying on the 2001 holding in Republic v. COCOFED,104 pleads in its
petition for review (G.R. No. 180702) that:
With all due respect, the Honorable Sandiganbayan failed to consider legal precepts and
procedural principles vis-à-vis the records of the case showing that the funds or "various loans"
or "advances" used in the acquisition of the disputed SMC Shares ultimately came from the
coconut levy funds.
As discussed hereunder, respondents’ own admissions in their Answers and Pre-Trial Briefs
confirm that the "various sources" of funds utilized in the acquisition of the disputed SMC shares
came from "borrowings" and "advances" from the UCPB and the CIIF Oil Mills.105
Thereby, the Republic would have the Sandiganbayan pronounce the block of SMC shares of
stock acquired by Cojuangco, et al. as ill-gotten wealth even without the Republic first
presenting preponderant evidence establishing that such block had been acquired illegally and
with the use of coconut levy funds.
The Court cannot heed the Republic’s pleas for the following reasons:
To begin with, it is notable that the decision of November 28, 2007 did not rule on whether
coconut levy funds were public funds or not. The silence of the Sandiganbayan on the matter was
probably due to its not seeing the need for such ruling following its conclusion that the Republic
had not preponderantly established the source of the funds used to pay the purchase price of the
concerned SMC shares, and whether the shares had been acquired with the use of coconut levy
funds.
Secondly, the ruling in Republic v. COCOFED106 determined only whether certain stockholders
of the UCPB could vote in the stockholders’ meeting that had been called. The issue now before
the Court could not be controlled by the ruling in Republic v. COCOFED, however, for even as
that ruling determined the issue of voting, the Court was forthright enough about not thereby
preempting the Sandiganbayan’s decisions on the merits on ill-gotten wealth in the several cases
then pending, including this one, viz:
In making this ruling, we are in no way preempting the proceedings the Sandiganbayan may
conduct or the final judgment it may promulgate in Civil Case No. 0033-A, 0033-B and 0033-F.
Our determination here is merely prima facie, and should not bar the anti-graft court from
making a final ruling, after proper trial and hearing, on the issues and prayers in the said civil
cases, particularly in reference to the ownership of the subject shares.
We also lay down the caveat that, in declaring the coco levy funds to be prima facie public in
character, we are not ruling in any final manner on their classification — whether they are
general or trust or special funds — since such classification is not at issue here. Suffice it to say
that the public nature of the coco levy funds is decreed by the Court only for the purpose of
determining the right to vote the shares, pending the final outcome of the said civil cases.
Neither are we resolving in the present case the question of whether the shares held by
Respondent Cojuangco are, as he claims, the result of private enterprise. This factual matter
should also be taken up in the final decision in the cited cases that are pending in the court a quo.
Again, suffice it to say that the only issue settled here is the right of PCGG to vote the
sequestered shares, pending the final outcome of said cases.
Thirdly, the Republic’s assertion that coconut levy funds had been used to source the payment
for the Cojuangco block of SMC shares was premised on its allegation that the UCPB and the
CIIF Oil Mills were public corporations. But the premise was grossly erroneous and overly
presumptuous, because:
(a) The fact of the UCPB and the CIIF Oil Mills being public corporations or
government-owned or government-controlled corporations precisely remained
controverted by Cojuangco, et al. in light of the lack of any competent to that effect being
in the records;
(b) Cojuangco explicitly averred in paragraph 2.01.(b) of his Answer that the UCPB was
a "private corporation;" and
(c) The Republic did not competently identify or establish which ones of the Cojuangco
corporations had supposedly received advances from the CIIF Oil Mills.
Fourthly, the Republic asserts that the contested block of shares had been paid for with
"borrowings" from the UCPB and "advances" from the CIIF Oil Mills, and that such borrowings
and advances had been illegal because the shares had not been purchased for the "benefit of the
Coconut Farmers." To buttress its assertion, the Republic relied on the admissions supposedly
made in paragraph 2.01 of Cojuangco’s Answer in relation to paragraph 4 of the Republic’s
Amended Complaint.
The best way to know what paragraph 2.01 of Cojuangco’s Answer admitted is to refer to both
paragraph 4 of the Amended Complaint and paragraph 2.01 of his Answer, which are hereunder
quoted:
Paragraph 4 of the Amended Complaint
4. Defendant EDUARDO M. COJUANGCO, JR., was Governor of Tarlac, Congressman of then

First District of Tarlac and Ambassador-at-Large in the Marcos Administration. He was
commissioned Lieutenant Colonel in the Philippine Air Force, Reserve. Defendant Eduardo M.
Cojuangco, Jr., otherwise known as the "Coconut King" was head of the coconut monopoly
which was instituted by Defendant Ferdinand E. Marcos, by virtue of the Presidential Decrees.
Defendant Eduardo E. Cojuangco, Jr., who was also one of the closest associates of the
Defendant Ferdinand E. Marcos, held the positions of Director of the Philippine Coconut
Authority, the United Coconut Mills, Inc., President and Board Director of the United Coconut
Planters Bank, United Coconut Planters Life Assurance Corporation, and United Coconut
Chemicals, Inc. He was also the Chairman of the Board and Chief Executive Officer and the
controlling stockholder of the San Miguel Corporation. He may be served summons at 45 Balete
Drive, Quezon City or at 136 East 9th Street, Quezon City.
Paragraph 2.01 of Respondent Cojuangco’s Answer
2.01. Herein defendant admits paragraph 4 only insofar as it alleges the following:
(a) That herein defendant has held the following positions in government: Governor of
Tarlac, Congressman of the then First District of Tarlac, Ambassador-at-Large,
Lieutenant Colonel in the Philippine Air Force and Director of the Philippines Coconut
Authority;
(b) That he held the following positions in private corporations: Member of the Board of
Directors of the United Coconut Oil Mills, Inc.; President and member of the Board of
Directors of the United Coconut Planters Bank, United Coconut Planters Life Assurance
Corporation, and United Coconut Chemicals, Inc.; Chairman of the Board and Chief
Executive of San Miguel Corporation; and
(c) That he may be served with summons at 136 East 9th Street, Quezon City.
Herein defendant specifically denies the rest of the allegations of paragraph 4, including any
insinuation that whatever association he may have had with the late Ferdinand Marcos or Imelda
Marcos has been in connection with any of the acts or transactions alleged in the complaint or for
any unlawful purpose.
It is basic in remedial law that a defendant in a civil case must apprise the trial court and the
adverse party of the facts alleged by the complaint that he admits and of the facts alleged by the
complaint that he wishes to place into contention. The defendant does the former either by
stating in his answer that they are true or by failing to properly deny them. There are two ways of
denying alleged facts: one is by general denial, and the other, by specific denial.107
In this jurisdiction, only a specific denial shall be sufficient to place into contention an alleged
fact.108 Under Section 10,109 Rule 8 of the Rules of Court, a specific denial of an allegation of the
complaint may be made in any of three ways, namely: (a) a defendant specifies each material
allegation of fact the truth of which he does not admit and, whenever practicable, sets forth the
substance of the matters upon which he relies to support his denial; (b) a defendant who desires
to deny only a part of an averment specifies so much of it as is true and material and denies only
the remainder; and (c) a defendant who is without knowledge or information sufficient to form a
belief as to the truth of a material averment made in the complaint states so, which has the effect
of a denial.
The express qualifications contained in paragraph 2.01 of Cojuangco’s Answer constituted

efficient specific denials of the averments of paragraph 2 of the Republic’s Amended Complaint
under the first method mentioned in Section 10 of Rule 8, supra. Indeed, the aforequoted
paragraphs of the Amended Complaint and of Cojuangco’s Answer indicate that Cojuangco
thereby expressly qualified his admission of having been the President and a Director of the
UCPB with the averment that the UCPB was a "private corporation;" that his Answer’s
allegation of his being a member of the Board of Directors of the United Coconut Oil Mills, Inc.
did not admit that he was a member of the Board of Directors of the CIIF Oil Mills, because the
United Coconut Oil Mills, Inc. was not one of the CIIF Oil Mills; and that his Answer nowhere
contained any admission or statement that he had held the various positions in the government or
in the private corporations at the same time and in 1983, the time when the contested acquisition
of the SMC shares of stock took place.
What the Court stated in Bitong v. Court of Appeals (Fifth Division)110 as to admissions is
illuminating:
When taken in its totality, the Amended Answer to the Amended Petition, or even the Answer to
the Amended Petition alone, clearly raises an issue as to the legal personality of petitioner to file
the complaint. Every alleged admission is taken as an entirety of the fact which makes for the
one side with the qualifications which limit, modify or destroy its effect on the other side. The
reason for this is, where part of a statement of a party is used against him as an admission, the
court should weigh any other portion connected with the statement, which tends to neutralize or
explain the portion which is against interest.
In other words, while the admission is admissible in evidence, its probative value is to be
determined from the whole statement and others intimately related or connected therewith as an
integrated unit. Although acts or facts admitted do not require proof and cannot be contradicted,
however, evidence aliunde can be presented to show that the admission was made through
palpable mistake. The rule is always in favor of liberality in construction of pleadings so that the
real matter in dispute may be submitted to the judgment of the court.
And, lastly, the Republic cites the following portions of the joint Pre-Trial Brief of Cojuangco, et
al.,111 to wit:
IV.
PROPOSED EVIDENCE
xxx
4.01. xxx Assuming, however, that plaintiff presents evidence to support its principal
contentions, defendant’s evidence in rebuttal would include testimonial and documentary
evidence showing: a) the ownership of the shares of stock prior to their acquisition by
respondents (listed in Annexes ‘A" and ‘B"); b) the consideration for the acquisition of the
shares of stock by the persons or companies in whose names the shares of stock are now
registered; and c) the source of the funds used to pay the purchase price.
4.02. Herein respondents intend to present the following evidence:
xxx
b. Proposed Exhibits ____, ____, ____
Records of the United Coconut Planters Bank which would show borrowings of the companies
listed in Annexes "A" and "B", or companies affiliated or associated with them, which were used
to source payment of the shares of stock of the San Miguel Corporation subject of this case.
4.03. Witnesses.
xxx
(b) A representative of the United Coconut Planters Bank who will testify in regard the
loans which were used to source the payment of the price of SMC shares of stock.
(c) A representative from the CIIF Oil Mills who will testify in regard the loans or credit
advances which were used to source the payment of the purchase price of the SMC shares
of stock.
The Republic insists that the aforequoted portions of the joint Pre-Trial Brief were Cojuangco, et
al.’s admission that:
(a) Cojuangco had received money from the UCPB, a bank entrusted by law with the
administration of the coconut levy funds; and
(b) Cojuangco had received more money from the CIIF Oil Mills in which part of the
CIIF funds had been placed, and thereby used the funds of the UCPB and the CIIF as
capital to buy his SMC shares.112
We disagree with the Republic’s posture.
The statements found in the joint Pre-Trial Brief of Cojuangco, et al. were noticeably written
beneath the heading of Proposed Evidence. Such location indicated that the statements were only
being proposed, that is, they were not yet intended or offered as admission of any fact stated
therein. In other words, the matters stated or set forth therein might or might not be presented at
all. Also, the text and tenor of the statements expressly conditioned the proposal on the Republic
ultimately presenting its evidence in the action. After the Republic opted not to present its
evidence, the condition did not transpire; hence, the proposed admissions, assuming that they
were that, did not materialize.
Obviously, too, the statements found under the heading of Proposed Evidence in the joint Pre-
Trial Brief were incomplete and inadequate on the important details of the supposed transactions
(i.e., alleged borrowings and advances). As such, they could not constitute admissions that the
funds had come from borrowings by Cojuangco, et al. from the UCPB or had been credit
advances from the CIIF Oil Companies. Moreover, the purpose for presenting the records of the
UCPB and the representatives of the UCPB and of the still unidentified or unnamed CIIF Oil
Mills as declared in the joint Pre-Trial Brief did not at all show whether the UCPB and/or the
unidentified or unnamed CIIF Oil Mills were the only sources of funding, or that such
institutions, assuming them to be the sources of the funding, had been the only sources of
funding. Such ambiguousness disqualified the statements from being relied upon as admissions.
It is fundamental that any statement, to be considered as an admission for purposes of judicial
proceedings, should be definite, certain and unequivocal;113 otherwise, the disputed fact will not
get settled.
Another reason for rejecting the Republic’s posture is that the Sandiganbayan, as the trial court,
was in no position to second-guess what the non-presented records of the UCPB would show as
the borrowings made by the corporations listed in Annexes A and B, or by the companies
affiliated or associated with them, that "were used to source payment of the shares of stock of the
San Miguel Corporation subject of this case," or what the representative of the UCPB or the
representative of the CIIF Oil Mills would testify about loans or credit advances used to source
the payment of the price of SMC shares of stock.
Lastly, the Rules of Court has no rule that treats the statements found under the heading
Proposed Evidence as admissions binding Cojuangco, et al. On the contrary, the Rules of Court
has even distinguished between admitted facts and facts proposed to be admitted during the stage
of pre-trial. Section 6 (b),114 Rule 18 of the Rules of Court, requires a Pre-Trial Brief to include a
summary of admitted facts and a proposed stipulation of facts. Complying with the requirement,
the joint Pre-Trial Brief of Cojuangco, et al. included the summary of admitted facts in its
paragraph 3.00 of its Item III, separately and distinctly from the Proposed Evidence, to wit:
III.
SUMMARY OF UNDISPUTED FACTS
3.00. Based on the complaint and the answer, the acquisition of the San Miguel shares by, and
their registration in the names of, the companies listed in Annexes "A" and "B" may be deemed
undisputed.
3.01. All other allegations in the complaint are disputed.115

The burden of proof, according to Section 1, Rule 131 of the Rules of Court, is "the duty of a
party to present evidence on the facts in issue necessary to establish his claim or defense by the
amount of evidence required by law." Here, the Republic, being the plaintiff, was the party that
carried the burden of proof. That burden required it to demonstrate through competent evidence
that the respondents, as defendants, had purchased the SMC shares of stock with the use of
public funds; and that the affected shares of stock constituted ill-gotten wealth. The Republic
was well apprised of its burden of proof, first through the joinder of issues made by the
responsive pleadings of the defendants, including Cojuangco, et al. The Republic was further
reminded through the pre-trial order and the Resolution denying its Motion for Summary
Judgment, supra, of the duty to prove the factual allegations on ill-gotten wealth against
Cojuangco, et al., specifically the following disputed matters:
(a) When the loans or advances were incurred;
(b) The amount of the loans from the UCPB and of the credit advances from the CIIF Oil
Mills, including the specific CIIF Oil Mills involved;
(c) The identities of the borrowers, that is, all of the respondent corporations together, or
separately; and the amounts of the borrowings;
(d) The conditions attendant to the loans or advances, if any;
(e) The manner, form, and time of the payments made to Zobel or to the Ayala Group,
whether by check, letter of credit, or some other form; and
(f) Whether the loans were paid, and whether the advances were liquidated.
With the Republic nonetheless choosing not to adduce evidence proving the factual allegations,
particularly the aforementioned matters, and instead opting to pursue its claims by Motion for
Summary Judgment, the Sandiganbayan became completely deprived of the means to know the
necessary but crucial details of the transactions on the acquisition of the contested block of
shares. The Republic’s failure to adduce evidence shifted no burden to the respondents to
establish anything, for it was basic that the party who asserts, not the party who denies, must
prove.116 Indeed, in a civil action, the plaintiff has the burden of pleading every essential fact and
element of the cause of action and proving them by preponderance of evidence. This means that
if the defendant merely denies each of the plaintiff’s allegations and neither side produces
evidence on any such element, the plaintiff must necessarily fail in the action.117 Thus, the
Sandiganbayan correctly dismissed Civil Case No. 0033-F for failure of the Republic to prove its
case by preponderant evidence.
A summary judgment under Rule 35 of the Rules of Court is a procedural technique that is
proper only when there is no genuine issue as to the existence of a material fact and the moving
party is entitled to a judgment as a matter of law.118 It is a method intended to expedite or
promptly dispose of cases where the facts appear undisputed and certain from the pleadings,
depositions, admissions, and affidavits on record.119 Upon a motion for summary judgment the
court’s sole function is to determine whether there is an issue of fact to be tried, and all doubts as
to the existence of an issue of fact must be resolved against the moving party. In other words, a
party who moves for summary judgment has the burden of demonstrating clearly the absence of
any genuine issue of fact, and any doubt as to the existence of such an issue is resolved against
the movant. Thus, in ruling on a motion for summary judgment, the court should take that view
of the evidence most favorable to the party against whom it is directed, giving that party the
benefit of all favorable inferences.120
The term genuine issue has been defined as an issue of fact that calls for the presentation of
evidence as distinguished from an issue that is sham, fictitious, contrived, set up in bad faith, and
patently unsubstantial so as not to constitute a genuine issue for trial. The court can determine
this on the basis of the pleadings, admissions, documents, affidavits, and counter-affidavits
submitted by the parties to the court. Where the facts pleaded by the parties are disputed or
contested, proceedings for a summary judgment cannot take the place of a trial.121 Well-settled is
the rule that a party who moves for summary judgment has the burden of demonstrating clearly
the absence of any genuine issue of fact.122 Upon that party’s shoulders rests the burden to prove
the cause of action, and to show that the defense is interposed solely for the purpose of delay.
After the burden has been discharged, the defendant has the burden to show facts sufficient to
entitle him to defend.123 Any doubt as to the propriety of a summary judgment shall be resolved
against the moving party.
We need not stress that the trial courts have limited authority to render summary judgments and
may do so only in cases where no genuine issue as to any material fact clearly exists between the
parties. The rule on summary judgment does not invest the trial courts with jurisdiction to try
summarily the factual issues upon affidavits, but authorizes summary judgment only when it
appears clear that there is no genuine issue as to any material fact.124
IV.
Republic’s burden to establish by preponderance of evidence that respondents’ SMC shares had
been illegally acquired with coconut-levy funds was not discharged
Madame Justice Carpio Morales argues in her dissent that although the contested SMC shares
could be inescapably treated as fruits of funds that are prima facie public in character,
Cojuangco, et al. abstained from presenting countervailing evidence; and that with the Republic
having shown that the SMC shares came into fruition from coco levy funds that are prima facie
public funds, Cojuangco, et al. had to go forward with contradicting evidence, but did not.
The Court disagrees. We cannot reverse the decision of November 28, 2007 on the basis alone of
judicial pronouncements to the effect that the coconut levy funds were prima facie public
funds,125 but without any competent evidence linking the acquisition of the block of SMC shares
by Cojuangco, et al. to the coconut levy funds.
V.
No violation of the DOSRI and

Single Borrower’s Limit restrictions
The Republic’s lack of proof on the source of the funds by which Cojuangco, et al. had acquired
their block of SMC shares has made it shift its position, that it now suggests that Cojuangco had
been enabled to obtain the loans by the issuance of LOI 926 exempting the UCPB from the
DOSRI and the Single Borrower’s Limit restrictions.
We reject the Republic’s suggestion.
Firstly, as earlier pointed out, the Republic adduced no evidence on the significant particulars of
the supposed loan, like the amount, the actual borrower, the approving official, etc. It did not
also establish whether or not the loans were DOSRI126 or issued in violation of the Single
Borrower’s Limit. Secondly, the Republic could not outrightly assume that President Marcos had
issued LOI 926 for the purpose of allowing the loans by the UCPB in favor of Cojuangco. There
must be competent evidence to that effect. And, finally, the loans, assuming that they were of a
DOSRI nature or without the benefit of the required approvals or in excess of the Single
Borrower’s Limit, would not be void for that reason. Instead, the bank or the officers responsible
for the approval and grant of the DOSRI loan would be subject only to sanctions under the
law.127
VI.
Cojuangco violated no fiduciary duties
The Republic invokes the following pertinent statutory provisions of the Civil Code, to wit:
Article 1455. When any trustee, guardian or other person holding a fiduciary relationship uses
trust funds for the purchase of property and causes the conveyance to be made to him or to a
third person, a trust is established by operation of law in favor of the person to whom the funds
belong.
Article 1456. If property is acquired through mistake or fraud, the person obtaining it s by force
of law, considered a trustee of an implied trust for the benefit of the person from whom the
property comes.
and the Corporation Code, as follows:
Section 31. Liability of directors, trustees or officers.—Directors or trustees who willfully and
knowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of
gross negligence or bad faith in directing the affairs of the corporation or acquire any personal or
pecuniary interest in conflict with their duty as such directors, or trustees shall be liable jointly
and severally for all damages resulting therefrom suffered by the corporation, its stockholders or
members and other persons.
When a director, trustee or officer attempts to acquire or acquires, in violation of his duty, any
interest adverse to the corporation in respect of any matter which has been reposed in him in
confidence, as to which equity imposes a disability upon him to deal in his own behalf, he shall
be liable as a trustee for the corporation and must account for the profits which otherwise would
have accrued to the corporation.
Did Cojuangco breach his "fiduciary duties" as an officer and member of the Board of Directors
of the UCPB? Did his acquisition and holding of the contested SMC shares come under a
constructive trust in favor of the Republic?
The answers to these queries are in the negative.
The conditions for the application of Articles 1455 and 1456 of the Civil Code (like the trustee
using trust funds to purchase, or a person acquiring property through mistake or fraud), and
Section 31 of the Corporation Code (like a director or trustee willfully and knowingly voting for
or assenting to patently unlawful acts of the corporation, among others) require factual
foundations to be first laid out in appropriate judicial proceedings. Hence, concluding that
Cojuangco breached fiduciary duties as an officer and member of the Board of Directors of the
UCPB without competent evidence thereon would be unwarranted and unreasonable.
Thus, the Sandiganbayan could not fairly find that Cojuangco had committed breach of any
fiduciary duties as an officer and member of the Board of Directors of the UCPB. For one, the
Amended Complaint contained no clear factual allegation on which to predicate the application
of Articles 1455 and 1456 of the Civil Code, and Section 31 of the Corporation Code. Although
the trust relationship supposedly arose from Cojuangco’s being an officer and member of the
Board of Directors of the UCPB, the link between this alleged fact and the borrowings or
advances was not established. Nor was there evidence on the loans or borrowings, their amounts,
the approving authority, etc. As trial court, the Sandiganbayan could not presume his breach of
fiduciary duties without evidence showing so, for fraud or breach of trust is never presumed, but
must be alleged and proved.128
The thrust of the Republic that the funds were borrowed or lent might even preclude any
consequent trust implication. In a contract of loan, one of the parties (creditor) delivers money or
other consumable thing to another (debtor) on the condition that the same amount of the same
kind and quality shall be paid.129 Owing to the consumable nature of the thing loaned, the
resulting duty of the borrower in a contract of loan is to pay, not to return, to the creditor or
lender the very thing loaned. This explains why the ownership of the thing loaned is transferred
to the debtor upon perfection of the contract.130 Ownership of the thing loaned having
transferred, the debtor enjoys all the rights conferred to an owner of property, including the right
to use and enjoy (jus utendi), to consume the thing by its use (jus abutendi), and to dispose (jus
disponendi), subject to such limitations as may be provided by law.131 Evidently, the resulting
relationship between a creditor and debtor in a contract of loan cannot be characterized as
fiduciary.132
To say that a relationship is fiduciary when existing laws do not provide for such requires
evidence that confidence is reposed by one party in another who exercises dominion and
influence. Absent any special facts and circumstances proving a higher degree of responsibility,
any dealings between a lender and borrower are not fiduciary in nature.133 This explains why, for
example, a trust receipt transaction is not classified as a simple loan and is characterized as
fiduciary, because the Trust Receipts Law (P.D. No. 115) punishes the dishonesty and abuse of
confidence in the handling of money or goods to the prejudice of another regardless of whether
the latter is the owner.134
Based on the foregoing, a debtor can appropriate the thing loaned without any responsibility or
duty to his creditor to return the very thing that was loaned or to report how the proceeds were
used. Nor can he be compelled to return the proceeds and fruits of the loan, for there is nothing
under our laws that compel a debtor in a contract of loan to do so. As owner, the debtor can
dispose of the thing borrowed and his act will not be considered misappropriation of the thing.135
The only liability on his part is to pay the loan together with the interest that is either stipulated
or provided under existing laws.
WHEREFORE, the Court dismisses the petitions for certiorari in G.R. Nos. 166859 and 169023;
denies the petition for review on certiorari in G.R. No. 180702; and, accordingly, affirms the
decision promulgated by the Sandiganbayan on November 28, 2007 in Civil Case No. 0033-F.
The Court declares that the block of shares in San Miguel Corporation in the names of
respondents Cojuangco, et al. subject of Civil Case No. 0033-F is the exclusive property of
Cojuangco, et al. as registered owners.
Accordingly, the lifting and setting aside of the Writs of Sequestration affecting said block of
shares (namely: Writ of Sequestration No. 86-0062 dated April 21, 1986; Writ of Sequestration
No. 86-0069 dated April 22, 1986; Writ of Sequestration No. 86-0085 dated May 9, 1986; Writ
of Sequestration No. 86-0095 dated May 16, 1986; Writ of Sequestration No. 86-0096 dated
May 16, 1986; Writ of Sequestration No. 86-0097 dated May 16, 1986; Writ of Sequestration
No. 86-0098 dated May 16, 1986; Writ of Sequestration No. 86-0042 dated April 8, 1986; and
Writ of Sequestration No. 87-0218 dated May 27, 1987) are affirmed; and the annotation of the
conditions prescribed in the Resolutions promulgated on October 8, 2003 and June 24, 2005 is
cancelled.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

ANTONIO EDUARDO B.
NACHURA
Associate Justice
Associate Justice
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice




Associate Justice
CERTIFICATION
RENATO C. CORONA
Chief Justice
Footnotes
1
Rollo (G.R. No. 166859), pp. 2-48.
2
Rollo (G.R. No. 169023), pp. 2-39.
3
Rollo (G.R. No. 180702), Vol. 2, pp. 397-459.
4
Rollo (G.R. No. 166859), pp. 49-63
5
Rollo (G.R. No. 169023), pp. 40-55.
6
Id., pp. 74-82.
7
Rollo (G.R. No. 180702), Vol. 2, pp. 461-514.
8
Id., pp. 516-590.
9
Namely: Agricultural Consultancy Services, Incorporated, Archipelago Realty
Corporation, Autonomous Development Corporation, Balete Ranch, Incorporated, Black
Stallion Ranch, Incorporated, Christensen Plantation Company, Cocoa Investors,
Incorporated, Davao Agicultural Aviation, Incorporated, Discovery Realty Corporation,
Dream Pastures, Incorporated, Echo Ranch, Incorporated, ECJ & Sons Agri. Ent.,
Incorporated, Far East Ranch, Incorporated, FILSOV Shipping Company, Incorporated,
First United Transport, Incorporated, Habagat Realty Development, Incorporated, HYCO
Agrocultural, Incorporated, Kalawakan Resorts, Incorporated, Kaunlaran Agricultural
Corporation, Labayog Air Terminals, Incorporated, Landair International Marketing
Corporation, LHL Cattle Corporation, Meadow Lark Plantations, Incorporated,
Metroplex Commodities, Incorporated, Misty Mountain Agricultural Corporation,
Northeast Contract Traders, Incorporated, Northern Carriers Corporation, Oceanside
Maritime Enterprises, Incorporated, Oro Verde Services, Incorporated, Pastoral Farms,
Incorporated, PCY Oil Manufacturing Corporation, Philippine Radio Corporation,
Incorporated, Philippine Technologies, Incorporated, Primavera Farms, Incorporated,
Punong-Bayan Housing Development Corporation, Pura Electric Company, Incorporated,
Radio Audience Developers Integrated Organization, Incorporated, Radio Pilipino
Corporation, Rancho Grande, Incorporated, Reddee Developers, Incorporated, San
Esteban Development Corporation, Silver Leaf Plantation, Incorporated, Southern
Services Traders, Incorporated, Southern Star Cattle Corporation, Spade 1 Resorts
Corporation, Tagum Agricultural Development Corporation, Thilagro Edible Oil Mills,
Incorporated, Unexplored Land Developers, Incorporated, Ventures Securities,
Incorporated, Verdant Plantations, Inc., Vesta Agricultural Corporation, and Wings
Resorts Corporation.
10
Rollo (G.R. No. 180702), Vol. 2, pp. 516-545.
11
Id., pp. 525-533.
12
13
Ibid.
14
Decision dated November 28, 2007 in Civil Case No. 0033-F, supra, note 7, p. 478.
15
Rollo, (G.R. 180702), Vol. 2, pp. 591-610.
16
Id., pp. 611-625.
17
Decision dated November 28, 2007 in Civil Case No. 0033-F, supra, note 7, pp. 471-
473.
18
Id., pp. 473-476.
19
Id., pp. 476-477.
20
Id., p. 479.
21
Id.
22
Id., p. 480.
23
Id., p. 481.
24
Rollo (G.R. No. 169203), pp. 320-323-A.
25
Id.
26
27
484.
28
Id., p. 484.
29
Rollo (G.R. No. 180702), Vol. 2, pp. 642-684.
30
Id., pp. 685-738.
31
Id., pp. 738A-807.
32
33
Id., p. 485.
34
Id.
35
Id.
36
Rollo (G.R. No. 169203), pp. 40-55; the resolution, although dated September 17,
2003, was promulgated only on October 8, 2003; it was penned by Associate Justice
Diosdado M. Peralta (later Presiding Justice, now a Member of the Court), and concurred
in by Associate Justice Teresita J. Leonardo-De Castro (later Presiding Justice, now a
Member of the Court) who wrote a concurring and dissenting opinion, Associate Justice
Gregory S. Ong, Associate Justice Godofredo Legaspi (retired), and Associate Justice
Francisco H. Villaruz, Jr., who submitted a separate concurring opinion.
37
Resolution dated October 8, 2003 in Civil Case No. 0033-F, supra, note 5, pp. 53-55.
38
39
Id.
40
Resolution dated June 24, 2005, supra, note 6, p. 81.
41
42
Id.
43
Id.
44
Id.
45
Id., p. 488.
46
Rollo (G.R. No. 169203), pp. 655-718.
47
Id., pp. 717-718.
48
49
Id.
50
Id.
51
Id.
52
Resolution dated December 10, 2004 in Civil Case No. 0033-F, supra, note 4, pp. 61-
63; it was penned by Associate Justice Leonardo-De Castro, and concurred in by
Associate Justice Peralta and Associate Justice Roland B. Jurado; bold emphasis
supplied.
53
54
Id.
55
Id.
56
Id.
57
Id.
58
Id., p. 491.
59
Id.
60
Id., p. 492.
61
Id.
62
Id.
63
Id., pp. 492-493.
64
Id., pp. 493-494.
65
Id., p. 494.
66
Id.
67
Id.
68
Id., pp. 494-495.
69
Id., p. 495.
70
Id.
71
Id.
72
Rollo (G.R. No. 180702), Vol. 3, pp. 882-884.
73
Id.
74
75
Id.
76
Id., p. 497.
77
Rollo (G.R. No. 166859), pp. 2-48.
78
The four conditions were the following:
(1) any sale, pledge, mortgage or other disposition of any of the shares of the
Defendants Eduardo Cojuangco, et al. shall be subject to the outcome of this case;
(2) the Republic through the PCGG shall be given twenty (20) days written notice
by Defendants Eduardo Cojuangco, et al. prior to any sale, pledge, mortgage or
other disposition of the shares;
(3) in the event of sale, mortgage or other disposition of the shares, by the
Defendants Cojuangco, et al., the consideration therefore, whether in cash or in
kind, shall be placed in escrow with Land Bank of the Philippines, subject to
disposition only upon further orders of this Court; and
(4) any cash dividends that are declared on the shares shall be placed in escrow
with the Land Bank of the Philippines, subject to disposition only upon further
orders of this Court. If in case stock dividends are declared, the conditions on the
sale, pledge, mortgage and other disposition of any of the shares as above-
mentioned in conditions 1, 2 and 3, shall likewise apply.
79
The modified conditions were reduced to only two, namely:
(a) any sale, pledge, mortgage or other disposition of any of the shares of the
Defendants Eduardo Cojuangco, et al. shall be subject to the outcome of this case.
(b) the Republic through the PCGG shall be given twenty (20) days written notice
other disposition of the shares.
80
Rollo (G.R. No. 169203), pp. 2-39.
81
Id., p. 11.
82
Decision dated November 28, 2007 in Civil Case No. 0033-F, supra, note 7; it was
penned by Associate Justice Peralta, with the concurrence of Presiding Justice Leonardo-
De Castro and Associate Justice Efren N. De la Cruz;.
83
Petition, p. 26; supra, note 3, p. 421.
84
Id., pp. 420-421.
85
Rollo, (G.R. No. 180702), Volume 1, pp. 18-77.
86
Republic v. Sandiganbayan, G.R. No. 119292, July 31, 1998, 293 SCRA 440, 455-456.
87
Bold emphasis supplied.
88
(4) Prohibit former President Ferdinand Marcos and/or his wife, Imelda Romualdez
Marcos, their close relatives, subordinates, business associates, dummies, agents, or
nominees from transferring, conveying, encumbering, concealing or dissipating said
assets or properties in the Philippines and abroad, pending the outcome of appropriate
proceedings in the Philippines to determine whether any such assets or properties were
acquired by them through or as a result of improper or illegal use of or the
conversion of funds belonging to the Government of the Philippines or any of its
branches, instrumentalities, enterprises, banks or financial institutions, or by taking
undue advantage of their official position, authority, relationship, connection or
influence to unjustly enrich themselves at the expense and to the grave damage and
prejudice of the Filipino people and the Republic of the Philippines.
89
G.R. No. L-75885, May 27, 1987, 150 SCRA 181, 209.
90
91
G.R. No. 173553-56, December 7, 2007, 539 SCRA 464, 481.
92
G.R. No. 130716, December 9, 1998, 299 SCRA 744, 768-769.
93
G.R. No. 89483, August 30, 1990, 189 SCRA 289.
94
95
G.R. No. 104768, July 21, 2003, 407 SCRA 10.
96
Bataan Shipyard and Engineering Co., Inc. v. Presidential Commission on Good
Government, supra, note 89, pp. 206-208.
97
98
99
100
Bold emphasis is in the original.
101
Bold emphasis is in the original.
102
103
509.
104
G.R. Nos. 147062-64, December 14, 2001, 372 SCRA 462.
105
Rollo (G.R. No. 180702), Vol. 2, pp. 427-428.
106
Supra, note 104.
107
Friedenthal, et al., Civil Procedure, 2nd Edition, §§5.18 and 5.19.
108
Section 11, Rule 8, Rules of Court, provides:
Section 11. Allegations not specifically denied deemed admitted. ̶ Material

averment in the complaint, other than those as to the amount of unliquidated
damages, shall be deemed admitted when not specifically denied. Allegations of
usury in a complaint to recover usurious interest are deemed admitted if not
denied under oath. (1a,R9).
109
Section 10. Specific denial. — A defendant must specify each material allegation of
fact the truth of which he does not admit and, whenever practicable, shall set forth the
substance of the matters upon which he relies to support his denial. Where a defendant
desires to deny only a part of an averment, he shall specify so much of it as is true and
material and shall deny only the remainder. Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a material averment made in the
complaint, he shall so state, and this shall have the effect of a denial. (10a)
110
G.R. No. 123553, July 13, 1998, 292 SCRA 503, 520.
111
Petition, pp. 40-41; rollo (G.R. No. 180702), Vol. 2, pp. 435-436.
112
Id., p. 436.
113
CMS Logging, Inc. v. Court of Appeals, G.R. No. 41420, July 10, 1992, 211 SCRA
374, 380-381; citing Bank of the Philippine Islands v. Fidelity & Surety Co., 51 Phil. 57,
64 (‘a statement is not competent as an admission where it does not, under a reasonable
construction, appear to admit or acknowledge the fact which is sought to be proved by it’.
An admission or declaration to be competent must have been expressed in definite,
certain and unequivocal language."
114
Section 6. Pre-trial brief. — The parties shall file with the court and serve on the
adverse party, in such manner as shall ensure their receipt thereof at least three (3) days
before the date of the pre-trial, their respective pre-trial briefs which shall contain, among
others:
(a) A statement of their willingness to enter into amicable settlement or alternative

modes of dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail themselves

of discovery procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their respective
testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to appear at
the pre-trial. (n)
115
Rollo (G.R. No. 180702), Vol. 2, p 634 (Pre-Trial Brief (Re: Acquisition of San
Miguel Corporation [SMC]) filed by Cojuangco, et al., p. 9).
116
Martin v. Court of Appeals, 205 SCRA 591, 596 [1995]; Luxuria Homes, Inc. v. Court
of Appeals, 302 SCRA 315 [1999].
117
I Jones on Evidence, (1992) §3.12; see also Vitarich Corporation v. Losin, G.R. No.
181560, November 15, 2010; Hyatt Elevators and Escalators Corp. v. Cathedral Heights
Building Complex Association, Inc., G.R. No. 173881, December 1, 2010; Reyes v.
Century Canning Corporation, G.R. No. 165377, February 16, 2010 (It is a basic rule in
evidence that each party to a case must prove his own affirmative allegations by the
degree of evidence required by law. In civil cases, the party having the burden of proof
must establish his case by preponderance of evidence, or that evidence that is of greater
weight or is more convincing than that which is in opposition to it. It does not mean
absolute truth; rather, it means that the testimony of one side is more believable than that
of the other side, and that the probability of truth is on one side than on the other.)
118
Section 3, Rule 35, Rules of Court; see Excelsa Industries, Inc. v. Court of Appeals,
G.R. No. 105455, August 23, 1995, 247 SCRA 560, 566; Solid Manila Corporation v.
Bio Hong Trading Co., Inc., G.R. No. 90596, April 8, 1991, 195 SCRA 748, 756;
Arradaza v. Court of Appeals, G.R. No. 50422, February 8, 1989, 170 SCRA 12; De
Leon v. Faustino, 110 Phil. 249.
119
Viajar v. Estenzo, G.R. No. L-45321, April 30, 1979, 89 SCRA 685, 696; Bayang v.
Court of Appeals, G.R. No. L-53564, February 27, 1987, 148 SCRA 91, 94.
120
Gatchalian v. Pavilin, G.R. No. L-17619, October 31, 1962, 6 SCRA 508, 512.
121
Paz v. Court of Appeals, G.R. No. 85332, January 11, 1990, 181 SCRA 26, 30; Garcia
v. Court of Appeals, G.R. Nos. L-82282-83, November 24, 1988, 167 SCRA 815;
Cadirao v. Estenzo, G.R. No. L-42408, September 21, 1984, 132 SCRA 93, 100;
Vergara, Sr. v. Suelto, G.R. No. L-74766, December 21, 1987, 156 SCRA 753;
Philippine National Bank v. Noah’s Ark Sugar Refinery, G.R. No. 107243, September 1,
1993, 226 SCRA 36, 42.
122
Cotabato Timberland Co., Inc. v. C. Alcantara and Sons, Inc., G.R. No. 145469, May
28, 2004, 430 SCRA 227; Viajar v. Estenzo, supra; Paz v. Court of Appeals, supra.
123
Estrada v. Consolacion, G.R. No. L-40948, June 29, 1976, 71 SCRA 523, 529.
124
Archipelago Builders v. Intermediate Appellate Court, G.R. No. 75282, February 19,
1991, 194 SCRA 207, 210; Viajar v. Estenzo, supra; Paz v. Court of Appeals, supra.
125
Id., citing Republic v. COCOFED, supra, note 111; and Republic v. Sandiganbayan
(First Division), G.R. No. 118661, January 22, 2007, 512 SCRA 25.
126
DOSRI is the acronym derived from the first letters of the words Directors, Officers,
Stockholders and their Related Interests. The DOSRI restriction is designed to prevent
undue advantage to be granted to such bank officers and their related interests in the grant
of bank loans, credit accommodations, and guarantees that may be extended, directly or
indirectly, by a bank to its directors, officers, stockholders and their related interests; and
limits the outstanding loans, credit accommodations, and guarantees that a bank may
extend to each of its stockholders, directors, or officers and their related interest to an
amount equivalent to their respective unencumbered deposits and book value of their
paid-in capital contributions in the bank.
The applicable DOSRI provision was Section 83 of Republic Act No. 337
(General Banking Law), as amended by P.D. No. 1795, to wit:
Section 83. No director or officer of any banking institution shall, either directly
or indirectly, for himself or as the representative or agent of other, borrow any of
the deposits of funds of such banks, nor shall he become a guarantor, indorser, or
surety for loans from such bank to others, or in any manner be an obligor for
money borrowed from the bank or loaned by it, except with the written approval
of the majority of the directors of the bank, excluding the director concerned. Any
such approval shall be entered upon the records of the corporation and a copy of
such entry shall be transmitted forthwith to the Superintendent of Banks. The
office of any director or officer of a bank who violates the provisions of this
section shall immediately become vacant and the director or officer shall be
punished by imprisonment of not less than one year nor more than ten years and
by a fine of not less than one thousand nor more than ten thousand pesos.
The Monetary Board may regulate the amount of credit accommodations that may
be extended, directly or indirectly, by banking institutions to their directors,
officers, or stockholders. However, the outstanding credit accommodations which
a bank may extend to each of its stockholders owning two per cent (2%) or more
of the subscribed capital stock, its directors, or its officers, shall be limited to an
amount equivalent to the respective outstanding deposits and book value of the
paid-in capital contribution in the bank: Provided, however, That loans and
advances to officers in the form of fringe benefits granted in accordance with
rules and regulations as may be prescribed by the Monetary Board shall not be
subject to the preceding limitation.
127
E.g., Section 66, Republic Act No. 8791 (General Banking Law of 2000), viz:
Section 66. Penalty for Violations of this Act. – Unless otherwise herein provided,
the violation of any of the provisions of this Act shall be subject to Sections 34,
35, 36 and 37 of the New Central Bank Act. If the offender is a director or officer
of a bank, quasi-bank or trust entity, the Monetary Board may also suspend or
remove such director or officer. If the violation is committed by a corporation,
such corporation may be dissolved by quo warranto proceedings instituted by the
Solicitor General.
128
Ng Wee v. Tankiansee, G.R. No. 171124, February 13, 2008, 545 SCRA 263.
129
Article 1933, Civil Code.
130
See Article 1953, Civil Code.
131
132
See Yong Chan Kim v. People, G.R. No. 84719, January 5, 1991, 193 SCRA 344,
353-354, where the Court has ruled that there can be no fiduciary relationship created
when the ownership of money was transferred, and for which a criminal action for estafa
cannot prosper.
133
Oak Ridge Precision Industries, Inc. v. First Tennessee Bank National Association,
835 S.W.2d 25, 30 (Tenn. Ct. App. 1992); Foster Business Park, LLC v. Winfree, No.
M2006-02340-COA-R3-CV, 2009 WL 113242 (Tenn. Ct. App., 2009).
134
Consolidated Bank and Trust Corporation v. Court of Appeals, G.R. No. 114286,
April 19, 2001, 356 SCRA 671,680; citing Colinares v. Court of Appeals, G.R. No.
90828, September 5, 2000, 339 SCRA 609, 623.
135
De Leon, Comments and Cases on Credit Transactions, 2006 Edition, p. 30.
DISSENTING OPINION
CARPIO MORALES, J.:
Before the Court are three consolidated1 petitions – G.R. No. 166859 G.R. No. 169203 and G.R.
No. 180702 – which involve related issues raised in Sandiganbayan Civil Case No. 0033-F, one
of eight subdivided cases2 arising from Civil Case No. 0033, the original complaint filed by the
Republic of the Philippines (Republic) before the Sandiganbayan on July 31, 1987 which was,
from 1987 to 1991, thrice amended or expanded, against respondents Eduardo Cojuangco, Jr.
(Cojuangco) and Cojuangco-owned corporations (Cojuangco companies), and other defendants.
Subject of Civil Case No. 0033-F are two blocks of shares of stock in San Miguel Corporation
(SMC): one approximately 31% of the outstanding capital stock of SMC consisting of
33,133,266 shares known as the Coconut Industry Investment Fund (CIIF) or "CIIF Block"
registered in the names of 14 holding companies,3 and another approximately 20% of the
outstanding capital stock of SMC consisting of 27,198,545 shares4 known as the "Cojuangco et
al. Block" registered in the names of respondents.
Disputed in the present petitions are the sequestration by the Republic through the Presidential
Commission on Good Government (PCGG) and ownership of the "Cojuangco et al. Block" of
SMC shares (hereafter referred to as subject SMC shares).
In précis, the Republic or the plaintiff claims, inter alia, that Cojuangco, a close associate of
President Ferdinand Marcos, acquired the subject SMC shares by unlawfully using the coconut
levy funds during the Marcos regime in betrayal of public trust and with brazen abuse of power.
The Republic, through the PCGG, thus seeks to recover these subject SMC shares which it
considers to be ill-gotten wealth "acquired and accumulated in flagrant breach of trust and of
[Cojuangco et al.’s] fiduciary obligations as public officers, with grave abuse of right and power
and in brazen violation of the Constitution and laws."5
The pertinent facts common to the three petitions and the proffered issues pertaining to each are
set forth below.
Following the subdivision of Civil Case No. 0033, the Republic filed a "Third Amended
Complaint (Subdivided) [Re: Acquisition of San Miguel Corporation (SMC)]"6 dated May 12,
1995, docketed as Civil Case No. 0033-F, which the Sandiganbayan admitted along with the
other subdivided complaints on March 24, 1999.
Respondents filed various motions to resolve the issue of the validity of the writs of
sequestration on grounds other than that the corporate respondents were not impleaded as
defendants in the corresponding judicial action, which ground was resolved by this Court in G.R.
No. 96073.7 On March 5, 1999, respondents filed another reiterative motion to assert that the
writs of sequestration issued by the PCGG – including nine writs, namely Writ Nos. 86-0042,
86-0062, 86-0069, 86-0085, 86-0095, 86-0096, 86-0097, 86-0098 and 87-0218 covering the
subject SMC shares8 – were unauthorized and never became effective.
Cojuangco and his co-respondent Cojuangco companies thereafter filed their respective
Answers9 of June 23, 1999 and June 28, 1999, and a joint Pre-Trial Brief10 of February 11, 2000.
The other defendants11 in Civil Case No. 0033-F also filed their separate Answers and Pre-Trial
Briefs. The Republic submitted its Pre-Trial Brief of May 9, 2000.
Several parties moved to intervene. By Orders of May 24, 2000, the Sandiganbayan allowed the
intervention of the Philippine Coconut Producers Federation, Inc. (Cocofed) and certain
individuals, and denied the intervention of Gabay Foundation, Inc. By Resolution of May 6,
2004, the Sandiganbayan denied SMC’s motion for intervention.
After the pre-trial was deemed terminated on May 24, 200012 and before the case could be set for
trial, the Republic filed on July 25, 2002 a "Motion for Judgment on the Pleadings and/or for
Partial Summary Judgment [Re: Defendants CIIF Companies,13 14 Holding Companies and
COCOFED, et al.]." With respect to this CIIF block of SMC shares, the Sandiganbayan granted
the motion, by Partial Summary Judgment14 of May 7, 2004, as modified by Resolution of May
11, 2007.
On July 11, 2003, the Republic filed a "Motion for Partial Summary Judgment [Re: Shares in
San Miguel Corporation Registered in the Respective Names of Defendant Eduardo M.
Cojuangco, Jr. and the Defendant Cojuangco Companies]"15 upon the thesis that the
Sandiganbayan could already render a valid judgment on the basis of undisputed facts appearing
on the record.
Meanwhile, by Resolution of October 8, 2003,16 the Sandiganbayan "declared automatically

lifted" the earlier enumerated nine writs of sequestration covering the subject SMC shares "for
being null and void" and ordered the annotation of four conditions17 on the relevant corporate
books of SMC.
In nullifying the nine writs, the Sandiganbayan found that Writ Nos. 86-0062, 86-0069, 86-0085,
86-0095, 86-0096, 86-0097 and 86-0098 violated the rule that writs of sequestration should be
issued by at least two PCGG commissioners, while the first writ – Writ No. 86-0042 – which
was issued prior to the promulgation of the two-commissioner rule and the last writ – Writ No.
87-0218 – were nonetheless lifted since the records failed to show that there was prior
determination of a prima facie factual basis for the sequestration.
Acting on the Republic’s Motion for Reconsideration of the Resolution of October 8, 2003 and
on respondents’ Motion for Modification of the same Resolution, the Sandiganbayan, by
Resolution of June 24, 2005,18 upheld the lifting of the nine writs of sequestration and deleted,
for being unnecessary, the last two of the four conditions it imposed, drawing the Republic to
challenge on certiorari before this Court in G.R. No. 169203 the two Resolutions (Resolution of
October 8, 2003 and Resolution of June 24, 2005) of the Sandiganbayan to which it attributes the
commission of grave abuse of discretion in:
I.
. . . LIFTING WRIT OF SEQUESTRATION NOS. 86-0042 AND 87-0218 DESPITE THE

EXISTENCE OF THE BASIC REQUISITES FOR THE VALIDITY OF SEQUESTRATION[;]
II.
. . . [DENYING] PETITIONER’S ALTERNATIVE PRAYER IN ITS MOTION FOR

RECONSIDERATION FOR THE ISSUANCE OF AN ORDER OF SEQUESTRATION
AGAINST ALL THE SUBJECT SHARES OF STOCK IN ACCORDANCE WITH THE
RULING IN REPUBLIC V. SANDIGANBAYAN, 258 SCRA 685 (1996)[;]
III.
. . . SUBSEQUENTLY DELETING THE LAST TWO (2) CONDITIONS WHICH IT

EARLIER IMPOSED ON THE SUBJECT SHARES OF STOCK.19 (underscoring in the
original)
In the meantime, the Sandiganbayan, upon Cojuangco’s and the Cojuangco companies’ motion,
authorized with a caveat20 the sale of the subject SMC shares to the SMC Retirement Plan, the
proceeds21 of which were applied to their outstanding loan obligations to the United Coconut
Planters Bank (UCPB).
Eventually, the Sandiganbayan, by Resolution of December 10, 2004, denied the Republic’s
motion for partial summary judgment after finding the existence of genuine factual issues. The
Republic thereupon challenged this Resolution via petition for certiorari in G.R. No. 166859,
imputing grave abuse of discretion on the part of the Sandiganbayan, particularly in:
(A)
. . . HOLDING THAT THE "VARIOUS SOURCES" OF FUNDS USED IN ACQUIRING THE

SUBJECT SMC SHARES OF STOCK REMAIN DISPUTED[;]
(B)
. . . IN HOLDING THAT IT IS "DISPUTED" WHETHER OR NOT COJUANGCO, JR. HAD

INDEED SERVED IN THE GOVERNING BODIES OF PCA, UCPB, AND/OR CIIF OIL
MILLS[; AND]
(C)
. . . IN NOT FINDING THAT COJUANGCO, JR. TOOK ADVANTAGE OF HIS POSITION

AND VIOLATED HIS FIDUCIARY OBLIGATIONS IN ACQUIRING THE SUBJECT SMC
SHARES OF STOCK.22
By the Republic’s claim, trial had become unnecessary in view of the admissions made by
respondents in their pleadings (i.e., their respective Answers and their Pre-Trial Brief) which
suffice for the rendition of a valid judgment.
During the pendency of the two petitions earlier filed with this Court, the Sandiganbayan, upon
respondents’ motion, set the case for trial on August 8, 10, 11, 2006.
Consistent with its earlier position that trial had become unnecessary, the Republic did not
present further evidence and instead submitted an August 28, 2006 "Manifestation of Purposes"
that served as its offer of evidence. After the admission of the Republic’s documentary evidence
on September 18, 2006,23 respondents, who found no need to present controverting evidence,
filed on November 24, 2006 a "Submission and Offer of Evidence of Defendants." Following the
admission of respondents’ documentary evidence, the parties submitted their respective
Memoranda24 and Reply-Memoranda.25
By Decision of November 28, 2007,26 the Sandiganbayan dismissed the Third Amended
Complaint in subdivided Civil Case No. 0033-F for failure of the Republic to prove by
preponderance of evidence its causes of action against the defendants. Thus the Sandiganbayan
disposed:
WHEREFORE, in view of all the foregoing, the Court is constrained to DISMISS, as it hereby
DISMISSES, the Third Amended Complaint in subdivided Civil Case No. 0033-F for failure of
plaintiff to prove by preponderance of evidence its causes of action against defendants with
respect to the twenty percent (20%) outstanding shares of stock of San Miguel Corporation
registered in defendants’ names, denominated herein as the "Cojuangco, et al. block" of SMC
shares. For lack of satisfactory warrant, the counterclaims in defendants’ Answers are likewise
ordered dismissed.
SO ORDERED.27 (emphasis and underscoring supplied)
Hence, the Republic’s appeal in G.R. No. 180702 upon the following issues:
WHETHER THE HONORABLE SANDIGANBAYAN COMMITTED A REVERSIBLE

ERROR WHEN IT DISMISSED CIVIL CASE NO. 0033-F; AND;
II
WHETHER OR NOT THE SUBJECT SHARES IN SMC, WHICH WERE ACQUIRED

BY, AND ARE IN THE RESPECTIVE NAMES OF RESPONDENTS COJUANGCO, JR.
AND THE COJUANGCO COMPANIES, SHOULD BE RECONVEYED TO THE
REPUBLIC OF THE PHILIPPINES FOR HAVING BEEN ACQUIRED USING
COCONUT LEVY FUNDS.28 (emphasis and underscoring supplied)
Certain individuals and organizations jointly filed before this Court a petition-in-intervention.29
From among them, only petitioner-intervenors Jovito Salonga, Wigberto Tañada, Oscar Santos,
Pambansang Kilusan Ng Mga Samahan Ng Magsasaka (PAKISAMA) represented by Vicente
Fabe, Surigao Del Sur Federation of Agricultural Cooperatives (SUFAC), and Moro Farmers
Association of Zamboanga Del Sur (MOFAZS), the last two represented by Romeo Royandoyan,
were allowed to intervene by Resolution of March 25, 2008.30
In challenging the Sandiganbayan Decision of November 28, 2007, petitioner-intervenors proffer

that the Sandiganbayan gravely erred and decided the case in violation of law and applicable
rulings in
. . . RULING THAT, WHILE ADMITTEDLY THE SUBJECT SMC SHARES WERE

PURCHASED FROM LOAN PROCEEDS FROM UCPB AND ADVANCES FROM THE CIIF
OIL MILLS, SAID SUBJECT SMC SHARES ARE NOT PUBLIC PROPERTY[; AND]
II
. . . IN FAILING TO RULE THAT, EVEN ASSUMING FOR THE SAKE OF ARGUMENT

THAT LOAN PROCEEDS FROM UCPB ARE NOT PUBLIC FUNDS, STILL, SINCE
RESPONDENT COJUANGCO, IN THE PURCHASE OF THE SUBJECT SMC SHARES
FROM SUCH LOAN PROCEEDS, VIOLATED HIS FIDUCIARY DUTIES AND TOOK A
COMMERCIAL OPPORTUNITY THAT RIGHTFULLY BELONGED TO UCPB (A PUBLIC
CORPORATION), THE SUBJECT SMC SHARES SHOULD REVERT BACK TO THE
GOVERNMENT.31 (underscoring supplied)
I shall discuss G.R. No. 169203, before jointly tackling G.R. No. 166859 and G.R. No. 180702
which involve an interlacing issue.
RULING IN G.R. NO. 169203
The issuance by the Sandiganbayan of its assailed Decision in G.R. No. 180702 notwithstanding,
I proceed to tackle the issues bearing on the issuance of the writs of sequestration in view of the
significant and novel issues raised in G.R. No. 169203.
Section 3 of the PCGG Rules and Regulations promulgated on April 11, 1986 reads:
Sec. 3. Who may issue. A writ of sequestration or a freeze or hold order may be issued by the
Commission upon the authority of at least two Commissioners, based on the affirmation or
complaint of an interested party or motu proprio when the Commission has reasonable grounds
to believe that the issuance thereof is warranted. (emphasis supplied)
Respecting the lifting of the seven writs, the Sandiganbayan committed no grave abuse of
discretion as their issuance violated the immediately-quoted provision of Section 3 of the PCGG
Rules and Regulations. Indeed, the Sandiganbayan merely adhered to this Court’s 1998 ruling in
Republic v. Sandiganbayan32 which construed Section 3 to mean that the authority given by two
commissioners for the issuance of a sequestration, freeze or hold order should be evident in the
order itself.
The construction advanced by petitioner creates rather than clears ambiguity. The fair and
sensible interpretation of the PCGG Rule in question is that the authority given by two
commissioners for the issuance of a sequestration, freeze or hold order should be evident in the
order itself. Simply stated, the writ must bear the signatures of two commissioners, because
their signatures are the best evidence of their approval thereof. Otherwise, the validity of
such order will be open to question and the very evil sought to be avoided— the use of spurious
or fictitious sequestration orders— will persist. The corporation or entity against which such writ
is directed will not be able to visually determine its validity, unless the required signatures of at
least two commissioners authorizing its issuance appear on the very document itself. The
issuance of sequestration orders requires the existence of a prima facie case. The two-
commissioner rule is obviously intended to assure a collegial determination of such fact. In
this light, a writ bearing only one signature is an obvious transgression of the PCGG Rules.
Inasmuch as sequestration tends to impede or limit the exercise of proprietary rights by private
citizens, it should be construed strictly against the state, pursuant to the legal maxim that
statutes in derogation of common rights are in general strictly construed and rigidly confined to
cases clearly within their scope and purpose. x x x33 (emphasis supplied)
The Republic, in fact, impliedly concedes that the seven writs of sequestration were tainted with
violations of the two-commissioner rule.
With respect to the lifting of the two other writs, Writ Nos. 86-0042 and 87-0218 which, albeit
did not violate the two-commissioner rule,34 were lifted for lack of prima facie basis for their
issuance, that involves a factual issue. It is settled that the Court does not resolve a question of
fact, which exists when the doubt or difference arises as to the truth or falsehood of facts or when
the query invites calibration of the whole evidence considering mainly the credibility of the
witnesses, the existence and relevancy of specific surrounding circumstances as well as their
relation to each other and to the whole, and the probability of the situation.35
IN ANY EVENT, I find no grave abuse of discretion on the part of the Sandiganbayan in
arriving at its finding that the issuance of the two writs lacks prima facie factual foundation that
the properties covered thereby are ill-gotten wealth. For, for the issuance of a writ of
sequestration to be valid, it must not only be shown that it was authorized by the PCGG and was
signed by at least two commissioners; it must also be shown that there is a prima facie showing
that the property subject thereof sequestered was ill-gotten wealth.36
The absence of a prior determination by the PCGG of a prima facie basis for the sequestration
order is, unavoidably, a fatal defect to render the sequestration of a corporation and its properties
void ab initio.37 That there are allegations in the subsequently filed complaint indicative of ill-
gotten wealth does not prove per se that an actual deliberation or consideration of evidence was
priorly made to arrive at the required quantum of proof for the issuance of the sequestration
orders. As found by the Sandiganbayan, the records of the PCGG were either utterly silent or
entirely insufficient on its compliance with this requirement. There were no minutes of any
meeting leading to the issuance of Writ No. 86-0042 which was signed "for the commission" by
Commissioner Mary Concepcion Bautista on April 8, 1986. As for Writ No. 87-0218 which was
issued on May 27, 1987, the only relevant document presented relates to the minutes of the May
26, 1987 meeting which reads:
The Commission approved the recommendation of Dir. Cruz to sequester all the shares of stock,
assets, records, and documents of Balete Ranch, Inc. and the appointment of the Fiscal
Committee with ECI Challenge, Inc. / Pepsi-Cola for Balete Ranch, Inc. and the Aquacor
Marketing Corp. vice Atty. S. Occena. The objective is to consolidate the Fiscal Committee
activities covering three associated entities of Mr. Eduardo Cojuangco. Upon recommendation of
Comm. Rodrigo, the reconstitution of the Board of Directors of the three companies was deferred
for further study.38
The dearth of any record from which a deliberation or derivation of a prima facie finding could
be established renders nugatory the "opportunity to contest" afforded to a person whose property
is sequestered.
While it has been held in Bataan Shipyard & Engineering Co, Inc. that orders of sequestration
may issue ex parte¸ it was emphasized that a prima facie factual foundation that the properties
sequestered are "ill-gotten wealth" is required, and that the person whose property is sequestered
has the opportunity to contest the validity of sequestration pursuant to Sections 5 and 6 of the
Rules and Regulations of PCGG itself. Indeed, that "opportunity to contest" includes resort to the
courts. The "opportunity to contest" will be meaningless unless there is a record, on the basis
of which the reviewing authority, including the court, may determine whether the PCGG’s
ruling that the property sequestered is "ill-gotten wealth" was issued "with grave abuse of
discretion amounting to lack or excess of jurisdiction." That record should include the reason
why the shares of stock are being sequestered and the record of the proceedings, on the basis of
which, issuance of the order of sequestration was authorized. Those records do not exist here.39
(emphasis in the original)
While certain statements in the 1995 case of Republic v. Sandiganbayan–40 which likewise
involved Sandiganbayan Civil Case No. 0033– could be construed to mean that this Court
therein ruled that the subject SMC shares are prima facie ill-gotten, those statements must be
taken in their proper context. The issue in that case was not whether there was a prima facie case
that the subject SMC shares, inter alia, were ill-gotten to warrant the issuance of sequestration
orders. The issue was, as therein stated:
DOES INCLUSION IN THE COMPLAINT FILED BY THE PCGG BEFORE THE

SANDIGANBAYAN OF SPECIFIC ALLEGATIONS OF CORPORATIONS BEING
"DUMMIES" OR UNDER THE CONTROL OF ONE OR ANOTHER OF THE
DEFENDANTS NAMED THEREIN AND USED AS INSTRUMENTS FOR ACQUISITION,
OR AS BEING DEPOSITARIES OR PRODUCTS, OF ILL-GOTTEN WEALTH; OR THE
ANNEXING TO SAID COMPLAINTS OF A LIST OF SAID FIRMS, BUT WITHOUT
ACTUALLY IMPLEADING THEM AS DEFENDANTS, SATISFY THE CONSTITUTIONAL
REQUIREMENT THAT IN ORDER TO MAINTAIN A SEIZURE EFFECTED IN
ACCORDANCE WITH EXECUTIVE ORDER NO. 1, s. 1986, THE CORRESPONDING
"JUDICIAL ACTION OR PROCEEDING" SHOULD BE FILED WITHIN THE SIX-MONTH
PERIOD PRESCRIBED IN SECTION 26, ARTICLE XVIII, OF THE (1987)
CONSTITUTION? (underscoring supplied)
That this Court in the immediately-cited 1995 Republic v. Sandiganbayan case left unresolved
the issue of whether there was prima facie factual basis for the issuance of the sequestration
orders of subject SMC shares is plain from its Resolution of August 6, 1996 disposing of the
PCGG’s motions for reconsideration, viz.:
The Court deliberated x x x and thereafter Resolved to DENY both motions for lack of merit.
The Court has made known its mandate that the ultimate factual issue of who are the
legitimate, bona fide owners of the sequestered assets be resolved by the Sandiganbayan
with all reasonable dispatch, as well as all other related and incidental questions, such as
whether there is prima facie factual foundation for the sequestration of said assets or for
apprehension of dissipation, loss or wastage in the event the sequestered shares of stock are
in the interim voted by their registered holders. It is the Sandiganbayan which must now be
acknowledged to have discretion and authority to determine the precise issues which still have to
be, or need no longer be, passed upon and adjudicated in light of the relevant dispositions of
this Court, the evidence already before the Sandiganbayan, and whatever comments,
observations, suggestions and proposals may be submitted by the parties – these being details
which this Court need not and will not attend to.41 (emphasis and underscoring supplied)
Clearly, this Court in the same case did not touch upon the validity of the writs of sequestration
on grounds other than the non-impleading of the corporate respondents as defendants in the
corresponding judicial action instituted within six months after the ratification of the 1987
Constitution, as required under Section 26, Article XVIII thereof. In fact, the corporate
respondents withdrew the assertion of lack of prima facie factual basis as a ground in assailing
the issuance of sequestration orders and limited their petition on just one ground.42 On whether
the objection of lack of prima facie factual basis could still be validly entertained, despite the
omnibus motion rule,43 I need not belabor this issue, especially since none of the parties raised or
considered this point.
The Republic goes on to fault the Sandiganbayan for denying its alternative prayer in its motion
for reconsideration – for the issuance by the Sandiganbayan of an order of sequestration against
the subject SMC shares in accordance with this Court’s decision in the 1996 case of Republic v.
Sandiganbayan,44 the pertinent portion of which reads:
x x x In brief, the matter of the legality and propriety of the sequestration of respondent
corporation became but an incident in said Civil Case No. 0010 and thus subject exclusively to
judicial adjudication by the respondent Court. We thus uphold the ruling of respondent Court on
this issue:
x x x (c) While Freeze Orders and writs of sequestration may continue to be issued within
eighteen (18) months from February 2, 1987, this could obviously refer only to matters
which have not yet been subject of litigation initiated by the Republic (i.e., the PCGG);
because
(d) Once suit has been initiated on a particular subject, the entire issue of the alleged ill-
gotten wealth— the acts or omissions of a particular defendant or set of defendants— will
have become subject exclusively to judicial adjudication. The issue of ill-gotten
properties under the causes of action alleged in the Complaints will have been removed
from the quasi-judicial level of the PCGG and elevated to the judicial level of the
SANDIGANBAYAN, the Court which today maintains exclusive original jurisdiction on
these matters;
(e) Writs may thereafter [i.e., after the lapse of eighteen months from February 2, 1987]
still issue, of course, and writs already issued may thereafter be certainly quashed,
dissolved, set aside or modified; but this time, only by the Courts, whether the
Sandiganbayan or the Supreme Court. The power over these assets has become
exclusively judicial.45 (italics in the original)lawph!l
Nowhere in the immediately-quoted portion of this Court’s decision was it mentioned that the
Sandiganbayan has the power to issue a writ of sequestration similar to that vested in the PCGG.
The quoted portion relates solely to the resolution of the second issue in that case – whether the
Sandiganbayan has "jurisdiction over a motion questioning the validity of a ‘sequestration order’
issued by a duly authorized representative of the PCGG". In ruling in the affirmative, this Court
settled that the matter of the legality and propriety of a sequestration, being an incident of the
case, is subject "exclusively to judicial adjudication" by the Sandiganbayan. The Court therein
emphatically reiterated that the remedies are always subject to the control of the Sandiganbayan
which acts as the arbiter between the PCGG and the claimants. Moreover, the Court, in no
uncertain terms, recognized that under no circumstance can a sequestration or freeze order be
validly issued by one who is not a Commissioner of the PCGG. The Sandiganbayan’s ample
power referred to therein to control the proceedings refers to the issuance of ancillary orders or
writs of attachment, upon proper application, to effectuate its judgment, but does not include the
power to seize in the first instance properties purporting to be ill-gotten.46
With regard to the order for the annotation of the four restrictive conditions on the relevant
corporate books of the SMC, despite the lifting of the writs of sequestration, the Sandiganbayan
was bereft of jurisdiction to do so. While it has ample power to make such interlocutory orders as
may be necessary to ensure that its judgment would not be rendered ineffective,47 that is not a
license for it to motu proprio issue every order it may deem fit.
The intended annotation of the four conditions is akin to a notice of lis pendens, which applies
only in an action affecting the title or right of possession of real property. The case involves
personal property, however.
Under the third, fourth and fifth causes of action of the Complaint, there are allegations of breach
of trust and confidence and usurpation of business opportunities in conflict with petitioners'
fiduciary duties to the corporation, resulting in damage to the Corporation. Under these causes of
action, respondents are asking for the delivery to the Corporation of possession of the parcels of
land and their corresponding certificates of title. Hence, the suit necessarily affects the title to or
right of possession of the real property sought to be reconveyed. The Rules of Court allows the
annotation of a notice of lis pendens in actions affecting the title or right of possession of
real property. x x x48 (italics in the original omitted; underscoring and emphasis supplied)
Even in cases of attachment, both the Revised Rules of Court and Corporation Code do not
require annotation on the corporation’s stock and transfer books for the attachment of shares of
stock to be valid and binding on the corporation and third party.49
If the Republic wanted to be assured that any judgment in its favor would be enforceable, there
are available remedies for the purpose. The 1998 Republic v. Sandiganbayan50 case instructs:
In brief, sequestration is not the be-all and end-all of the efforts of the government to recover
unlawfully amassed wealth. The PCGG may still proceed to prove in the main suit who the real
owners of these assets are. Besides, as we reasserted in Republic vs. Sandiganbayan, the PCGG
may still avail itself of ancillary writs, since "Sandiganbayan’s jurisdiction over the
sequestration cases demands that it should also have the authority to preserve the subject
matter of the cases, the alleged ill-gotten wealth properties x x x."
With the use of proper remedies and upon substantial proof, properties in litigation may,
when necessary, be placed in custodia legis for the complete determination of the
controversy or for the effective enforcement of the judgment. However, for violating the
Constitution and its own Rules, the PCGG may no longer exercise dominion and custody over
Respondent Corporation and the shares it owns in PTIC. (emphasis and underscoring supplied)
It may be argued that respondents, not having elevated the June 24, 2005 Resolution that denied
their Motion for Modification, albeit the Sandiganbayan partially modified its earlier imposition
of conditions on the lifting of the nine writs of sequestration, are presumed to be satisfied
therewith, hence, no modification of judgment or new affirmative relief can be granted to them at
this stage.51
Prudential Bank & Trust Co. v. Reyes,52 however, distinguishes an ordinary appeal from a
special civil action of certiorari, insofar as the application of the rule against granting affirmative
reliefs to a non-appealing party is involved. On the one hand, it is settled that in ordinary appeals
a party who did not appeal cannot seek affirmative relief other than the ones granted in the
disputed decision. An appellant can assign as many errors as he may deem to be reversible. On
the other hand, resort to a judicial review in a petition for certiorari is confined to issues of want
or excess of jurisdiction and grave abuse of discretion that go into the validity of the challenged
issuance.
In the petition at bar, the deletion by the Sandiganbayan of some of the conditions is intimately
related to the corollary retention of the remaining conditions. Otherwise stated, the Court, in
determining grave abuse of discretion on the part of the Sandiganbayan in removing, by
Resolution of June 24, 2005, two of the four conditions, would necessarily and inescapably have
to come to terms with the Sandiganbayan’s maintaining the other conditions, which is merely a
consequence of the single act of modifying the Resolution of October 8, 2003.
IN SUM, I find that the Sandiganbayan committed no grave abuse of discretion insofar as it
lifted the nine writs of sequestration, but it was bereft of jurisdiction in imposing the restrictive
conditions. The lifting of the sequestration orders does not ipso facto mean that the sequestered
properties are not ill-gotten bears reiteration, however. For the effect of the lifting of the
sequestration against a corporation or its shares is merely to terminate the role of the government
as conservator thereof.53
RULING IN G.R. NOS. 166859 & 180702
As reflected in the proceedings narrated above, the petition in G.R. No. 166859 challenging the
Sandiganbayan’s denial of the Republic’s motion for partial summary judgment has been
overtaken by events that culminated in the promulgation by the Sandiganbayan of its Decision of
November 28, 2007 which is being assailed in G.R. No. 180702. Records show that the parties
were subsequently given the opportunity to present evidence necessary to establish their
respective claims or defenses. As noted earlier, however, they opted to forego presenting
evidence during the trial.
Respondents raise a procedural objection on the basis of the limitation of the remedy under Rule
45, arguing that the petition for review on certiorari in G.R. No. 180702 raises questions of fact,
of which this Court cannot take cognizance as it is limited to reviewing errors of law.
The distinction between "questions of law" and "questions of fact" has long been settled. There is
a question of law when the doubt or difference arises as to what the law is on certain state of
facts, and which does not call for an examination of the probative value of the evidence
presented by the parties-litigants. On the other hand, there is a question of fact when the doubt or
controversy arises as to the truth or falsity of the alleged facts. Simply put, when there is no
dispute as to fact, the question of whether the conclusion drawn therefrom is correct is a question
of law.54 Whether a question is one of law or of fact is not determined by the appellation given to
such question by the party raising it; rather, it is whether a court can determine the issue raised
without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise, it
is a question of fact.55
The resolution of the issues involved in G.R. No. 180702 does not entail a reevaluation of the
probative value of documentary evidence or the credibility of witnesses, for none was presented
during the trial. The Court needs only to look into the pleadings and the parties’ submissions
without necessarily going into the truth or falsity thereof.56 Any review would only be limited to
the inquiry of whether the law was properly applied given the submissions which are part of the
record, the fact of filing of which is not contested by the parties.57 Since the petition assails the
correctness of the conclusions drawn by the Sandiganbayan from the set of facts it considered,
the question is one of law.58
In the joint determination of the two petitions, the linking bone of contention boils down to the
core issue of whether, on the basis of the submissions made of record, the subject SMC shares
should be reconveyed to the Republic for having been acquired with the use of coconut levy
funds.
It is proper to dissuade any confusion that might be engendered without a clear delineation of the
set of proceedings that, on the one hand, transpired up to that point where the motion for
summary judgment was resolved, which is the one pertinent to G.R. No. 166859, and, on the
other hand, the subsequent settings for trial that afforded both the Republic and Cojuangco, et al.
the opportunity to present evidence until the rendition of the assailed Decision, which is the
episode to be considered in G.R. No. 180702.
Being mindful of this marked difference in terms of the proceedings conducted is highly
important in order to illustrate and recognize situations where, as in this case, a plaintiff may be
denied summary judgment but, if the case proceeds ceteris paribus,59 a plaintiff may yet
obtain a favorable judgment when the defendant fails to (i) vary or override a judicial
admission in instances where it may be allowed, (ii) refute a disputable presumption or
prima facie pronouncement, or (iii) otherwise go forward with the burden of evidence in
proving an affirmative defense or disproving a negative assertion.
For, in the present case, I find the denial of the motion for summary judgment to be proper only
upon the grant to Cojuangco, et al. of the benefit of all favorable inferences in viewing the
evidence and that any doubt as to the existence of an issue of fact must be resolved against the
movant Republic. This afforded Cojuangco, et al. the entitlement to defend or go to trial,
precisely to demonstrate that their defense is not sham, fictitious or contrived, which "benefit of
favorable inference" could not have otherwise been settled through the hearing on the motion for
summary judgment.
In its Resolution of December 10, 2004 (assailed in G.R. No. 166859), which was heavily relied
upon in its Decision of November 28, 2007 (assailed in G.R. No. 180702), the Sandiganbayan
enumerated the following:
UNDISPUTED FACTS
1. Defendant Eduardo M. Cojuangco, Jr. admits that he acquired in 1983 approximately

twenty percent (20%) of the outstanding shares of stock of SMC which are registered in
his name and in the name of defendant corporations, x x x60
2. Defendant Cojuangco used the proceeds of loans obtained by said defendant from
various sources in purchasing the said block of shares;
3. The said block of shares were purchased by defendant Eduardo M. Cojuangco, Jr. from
Ayala Corporation, of which Mr. Enrique Zobel was then the Chairman and Chief
Executive Officer, and from several other corporations and individuals;
4. The total of 27,198,545 shares of stocks in the SMC at the time of sequestration in
1989, by reason of the declaration of 100% stock dividends and subsequent stock split,
has grown to 108,846,948, x x x61
5. "There are ‘indications . . .’ that several of the corporations listed in the complaint
against Eduardo M. Cojuangco, Jr., are ‘dummies’ or manipulated instruments, or
repositories of wealth deceitfully amassed at the expense of the People or simply fruits
thereof." (Republic v. Sandiganbayan, 240 SCRA 376 [1995])62
In both the Resolution of December 10, 2004 and the Decision of November 28, 2007, the
Sandiganbayan consistently pointed out the "disputed facts" by outlining the genuine factual
issues, viz.:
DISPUTED FACTS
xxxx
1) What are the "various sources" of funds, which the defendant Cojuangco and his
coconut levy funds;
3) Whether or not defendant Cojuangco had indeed served in the governing bodies of
4) Whether or not defendant Cojuangco took advantage of his position and/ or close ties
A considered look at the pleadings submitted by the parties is thus imperative.
Pertinent portions of the Third Amended Complaint read:
xxxx
4. Defendant EDUARDO M. COJUANGCO, JR., was Governor of Tarlac, Congressman of then

First District of Tarlac, and Ambassador-at-Large in the Marcos Administration. He was
commissioned Lieutenant Colonel in the Philippine Air Force, Reserve. Defendant Eduardo M.
Cojuangco, Jr., otherwise known as the "Coconut King" was head of the coconut monopoly
which was instituted by Defendant Ferdinand E. Marcos, by virtue of the Presidential Decrees.
Defendant Eduardo E. Cojuangco, Jr., who was also one of the closest associates of the
Defendant Ferdinand E. Marcos, held the positions of Director of the Philippine Coconut
Authority, the United Coconut Mills, Inc., President and Board Director of the United Coconut
Planters Bank, United Coconut Planters Life Assurance Corporation, and United Coconut
Chemicals, Inc. He was also the Chairman of the Board and Chief Executive Officer and the
controlling stockholder of the San Miguel Corporation. He may be served summons at x x x.
4.a One of the companies beneficially owned or controlled by Defendant Eduardo E. Cojuangco
and/or by the individual defendants is/was the San Miguel Corporation (SMC) organized
according to Philippine laws.
xxxx
14. Defendant Eduardo Cojuangco, Jr. taking undue advantage of his association, influence and
connection, acting in unlawful concert with Defendants Ferdinand E. Marcos and Imelda R.
Marcos, and the individual defendants, embarked upon devices, schemes and stratagems,
including the use of defendant corporations as fronts, to unjustly enrich themselves at the
expense of Plaintiff and the Filipino people, such as when he – misused coconut levy funds to
buy out majority of the outstanding shares of stock of San Miguel Corporation in order to control
the largest agri-business, foods and beverage company in the Philippines, more particularly
described as follows:
(a) Having control over the coconut levy, Defendant Eduardo M. Cojuangco invested the
funds in diverse activities, such as the various businesses SMC was engaged in (e.g. large
beer, food, packaging, and livestock);
(b) He entered SMC in early 1983 when he bought most of the 20 million shares Enrique
Zobel owned in the Company. The shares, worth $49 million, represented 20% of SMC;
xxxx
(i) Mr. Eduardo M. Cojuangco, Jr. acquired a total of 16,276,879 shares of San Miguel
Corporation from the Ayala group; of said shares, a total of 8,138440 (broken into
7,128,227 Class A and 1,010,213 Class B shares) were placed in the names of
Meadowlark Plantations, Inc. (2,034,610) and Primavera Farms, Inc. (4,069,220). The
Articles of Incorporation of these three companies show that Atty. Jose C. Concepcion of
ACCRA owns 99.6% of the entire outstanding stock. The same shareholder executed
three (3) separate "Declaration of Trust and Assignment of Subscription" in favor of a
BLANK assignee pertaining to his shareholdings in Primavera Farms, Inc., Silver Leaf
Plantations, Inc. and Meadowlark Plantations, Inc.
(j) The same stockholder (Jose C. Concepcion), together with all the four other
stockholders in the trhee (sic) named corporations, simultaneously executed Voting Trust
Agreements in favor of Mr. Eduardo M. Cojuangco, Jr. over the SMC shares of stock
which they acquired. In these trust deeds, Eduardo Cojuangco, Jr. undertook to hold the
SMC shares in trust for the beneficial owners, and to turn over with utmost speed the
dividends on the shares to the latter.
(k) The other Respondent Corporations are owned by interlocking shareholders who are
likewise lawyers in the ACCRA Law Offices and had admitted their status as "nominee
stockholders" only.
(k-1) The Corporations: Agricultural Consultancy Services, Inc., Archipelago

Realty Corporation, Balete Ranch, Inc., Discovery Realty Corporation, First
United Transport, Inc., Kaunlaran Agricultural Corporation, Land Air
International Marketing Corporation, Misty Mountains Agricultural Corporation,
Pastoral Farms, Inc., Oro Verde Services, Inc., Radyo Filipino Corporation,
Reddee Developers, Inc., Verdant Plantations, Inc. and Vesta Agricultural
Corporation, were incorporated by lawyers of ACCRA Law Offices.
(k-2) With respect to PCY Oil Manufacturing Corporation and Metroplex

Commodities, Inc., they are controlled respectively by HYCO, Inc. and Ventures
Securities, Inc. both of which were incorporated likewise by lawyers of ACCRA
Law Offices.
(k-3) The stockholders who appear as incorporators in most of the other

Respondent Corporations are also llawyers (sic) of the ACCRA Law Offices, who
as early as 1987 had admitted under oath that they were acting only as "nominees
stockholders."
(l) These companies, which ACCRA Law Offices organized for Defendant Cojuangco to
be able to control more than 60% of SMC shares, were funded by institutions which
depended upon the coconut levy such as the UCPB, UNICOM, United Coconut Planters
Life Assurance Corp. (COCOLIFE), among others. Cojuangco and his ACCRA lawyers
used the funds from 6 large coconut oil mills and 10 copra trading companies to borrow
money from the UCPB and purchase these holding companies and the SMC stocks.
Cojuangco used $150 million from the coconut levy, broken down as follows:
Amount Source Purpose

(in million)
$22.26 Oil Mills equity in holding

companies
$65.6 Oil Mills loan to holding

companies
$61.2 UCPB loan to holding

companies (164)
The entire amount, therefore, came from the coconut levy, some passing through
the Unicom oil mills, others directly from the UCPB.
xxxx
(o) Along with Cojuangco, Defendant Enrile and ACCRA also had interests in
SMC, broken down as follows:
% of SMC Owner
Cojuangco
31.3% coconut levy money
18% companies linked to Cojuangco
5.2% government
5.2% SMC employee retirement fund
Enrile & ACCRA
1.8% Enrile
1.8% Jaka Investment Corporation
1.8% ACCRA Investment Corporation64
In Cojuangco’s Answer to the Third Amended Complaint, he made the following

material admissions:
2.01 Herein defendant admits paragraph 4 only insofar as it alleges the following:
(a) That herein defendant has held the following positions in
government: Governor of Tarlac, Congressman of the then First District
of Tarlac, Ambassador-at-Large, Lieutenant Colonel in the Philippine Air
Force and Director of the Philippine Coconut Authority;
(b) That he held the following positions in private corporations:

Member of the Board of Directors of the United Coconut Oil Mills,
Inc.; President and member of the Board of Directors of the United
Coconut Planters Bank, United Coconut Planters Life Assurance
Corporation, and United Coconut Chemicals, Inc.; Chairman of the
Board and Chief Executive Officer of San Miguel Corporation; x x x
xxxx
5.02.b. Herein defendant admits paragraph 14(b) of the complaint insofar as it is

alleged therein that in 1983, he acquired shares of stocks representing
approximately 20% of the outstanding capital stock of San Miguel
Corporation; herein defendant specifically denies that the shares of stock in
SMC which he purchased belonged to Mr. Enrique Zobel, the truth being that
the said shares of stock were owned by the Ayala Corporation, of which Mr.
Enrique Zobel was then Chairman and Chief Executive Officer, and several
other corporations and individuals. Herein defendant further denies the
allegation, implication and insinuation, whether contained in paragraph 14(b) or
in any other portion of the complaint that he acquired the aforesaid interest in San
Miguel Corporation with the use of the coconut levy funds, or in any other
manner contrary to law, the truth being that herein defendant acquired the
said shares of stock using the proceeds of loans obtained by herein defendant
from various sources.
xxxx
5.02.i. Herein defendant admits paragraph 14(i) of the complaint insofar as it is

alleged therein that he acquired the San Miguel shares registered in the name
of Ayala Corporation and that some of said shares were registered in the
names of Meadowlark Plantations, Inc. and Primavera Farms, Inc. Herein
defendant further admits that, at the time of their incorporation, 99.6% of the
said shares in said corporations were registered in the name of Atty. Jose C.
Concepcion. Herein defendant likewise admits that Atty. Jose C. Concepcion
executed three (3) separate Declarations of Trust and Assignment of
Subscription" in favor of an unnamed assignee pertaining to his shares in
Primavera Farms, Silver Leaf Plantations, Inc. and Meadowlark Plantations,
Inc.
5.02.j. Herein defendant admits paragraph 14(j) of the complaint insofar as it is

alleged therein that Atty. Jose C. Concepcion and other registered
stockholders of Primavera Farms, Inc, Silver Leaf Plantations, Inc. and
Meadowlark Plantations, Inc. executed Voting Trust Agreements in favor of
herein defendant over the shares of stock in SMC registered in the names of
said corporations. Herein defendant however denies that, in said deeds of trust,
herein defendant "undertook to hold the SMC shares in trust for the beneficial
owners, and to turn over with utmost speed the dividends received on the shares
of the latter", the truth being that herein defendant is the true, lawful and
beneficial owner of the SMC shares of stock registered in the names of
Primavera Farms, Inc, Silver Leaf Plantations, Inc. and Meadowlark
Plantations, Inc.
5.02.k. Herein defendant admits paragraph 14(k) inclusive of paragraphs (K-2)

and (K-2), insofar as it is alleged that Agricultural Consultancy Services, Inc.,
Archipelago Realty Corporation, Balete Ranch, Inc., Black Stallion Ranch, Inc.,
Discovery Realty Corporation, First United Transport, Inc., Kaunlaran
Agricultural Corporation, Landair International Marketing Corporation, Misty
Mountains Agricultural Corporation, Pastoral Farms, Inc., Oro Verde Services,
Inc., Radyo Filipino Corporation, Reddee Developers, Inc., Verdant Plantations,
Inc., and Vesta Agricultural Corporation, Hyco, Inc and Ventures Securities, Inc.
were incorporated by lawyers of the ACCRA Law Offices. Herein defendant,
however, denies, for lack of knowledge or information sufficient to form a belief
as to the truth thereof, paragraph 14(k-3) of the complaint to the effect that "[t]he
stockholders who appear as incorporators in most of the other Respondent
Corporations are also lawyers of the ACCRA Law Offices, who as early as 1987
had admitted under oath that they were acting only as "nominee stockholders".
5.02. l. Herein defendant denies paragraph 14(l) of the complaint, the truth being
that the companies incorporated in his behalf by the ACCRA Law Office
cumulatively own less than 20% of the outstanding capital stock of SMC, that
herein defendant did not use the coconut levy funds, or any part thereof, to
acquire his shareholdings in SMC.
xxxx
5.02.o. Herein defendant admits paragraph 14(o) of the complaint insofar as

it is alleged therein that herein defendant and/or the corporations affiliated
with him own approximately 18% of the outstanding common stock of SMC.
Herein defendant however denies that he owns or has an interest in the SMC
shares acquired with the use of ‘coconut levy money’, those owned by
‘government’ or those owned by the ‘SMC employee retirement fund’, the truth
being that herein defendant has no interest in those shareholdings. Herein
defendant likewise denies the allegations in paragraph 14(o) of the complaint in
regard the shareholdings in SMC of defendant Juan Ponce Enrile, Jaka
Investments Corporation and ACCRA Investment Corporation for lack of
knowledge or information sufficient to form a belief as to the truth thereof.65
Similarly, in their Answer to the Third Amended Complaint, the Cojuangco
companies made the following material admissions:
5.02. Insofar as it refers to the other defendants, herein defendants deny paragraph
14 of the complaint for lack of knowledge or information sufficient to form a
belief as to the truth thereof. Insofar as it refers to herein defendants, they deny
paragraph 14 of the complaint, the truth being that herein defendants have not
been used as fronts, whether by defendant Eduardo Cojuangco, Jr. or any other
defendant, for the purposes stated therein. The shares of stock in San Miguel
Corporation (SMC) registered in the names of herein defendants were not
acquired with the use of coconut levy funds.
5.02.b. Herein defendants deny paragraph 14(h) the truth being that herein
defendant corporations were all duly incorporated and constituted, and their assets
acquired, in accordance with the Corporation Code and all pertinent laws.
5.02.c. Herein defendants deny paragraph 14(i) of the complaint for lack of
knowledge or information sufficient to form a belief except in so far as it is
alleged that they are the registered owners of certain shares of stock in San
Miguel Corporation.
xxxx
5.02.e. Herein defendants specifically deny paragraph 14(l) of the complaint in so

far as it alleges that shares of stock in San Miguel Corporation of defendants were
acquired with the use of coconut levy funds, the truth being that whatever funds
were used to acquire shares of stock in San Miguel Corporation belonged to
them; the rest of the allegations are denied for lack of knowledge or information
sufficient to form a belief.
xxxx
5.02.h. Herein defendants admit paragraph 14(o) of the complaint insofar as it is

alleged therein that herein defendants own approximately 18% of the
outstanding common stock of SMC. Herein defendants however deny they own
or have interest in the SMC shares acquired with the use of ‘coconut levy fund’,
the truth being that herein defendants have no interest in those shareholdings.
Herein defendants likewise deny the allegations in paragraph 14(o) of the
complaint in regard the shareholdings in SMC of defendant Juan Ponce Enrile,
Jaka Investment Corporation, and ACCRA Investment Corporation for lack of
knowledge or information sufficient to form a belief as to the truth thereof.66
(underscoring and emphasis supplied)
Sources of Funds to Acquire

the subject SMC shares
The Sandiganbayan’s finding that the "’various sources’ of funds" that respondents used to
acquire the subject SMC shares is a disputed fact is inaccurate.
As listed in the undisputed facts, the source was already particularly identified as "loans," as
confirmed by the exact phrase employed by Cojuangco. In his Answer, Cojuangco denied that he
acquired the SMC shares "with the use of coconut levy funds, or in any other manner contrary to
law, the truth being that herein defendant acquired the said shares of stock using the proceeds of
loans obtained by herein defendant from various sources."67 His affirmative defense, therefore,
is that the funds came from a different (not coconut levy funds) source in the nature of loans.
Cojuangco companies’ Answer, meanwhile, avers that "whatever funds were used to acquire [the
SMC shares] belonged to them."68 Their affirmative defense points to privately owned funds as
the source of payment of the purchase price. As will be explained later, these affirmative
defenses need to be proved, yet Cojuangco, et al. did not present any evidence.
The Sandiganbayan’s finding totally disregards the statements of respondents in their joint Pre-
Trial Brief that they obtained loans and credit advances from the UCPB and CIIF Oil Mills for
the purchase of the subject SMC shares. Consider Cojuangco and the Cojuangco companies’
statements in their Pre-Trial Brief:
IV.
PROPOSED EVIDENCE
xxxx
4.01 x x x Assuming, however, that plaintiff presents evidence to support its principal
contentions, defendant’s evidence in rebuttal would include testimonial and documentary
evidence showing: a) the ownership of the shares of stock prior to their acquisition by defendants
(listed in Annexes ‘A’ and ‘B’); b) the consideration for the acquisition of the shares of stock by
the persons or companies in whose names the shares of stock are now registered; and c) the
source of the funds used to pay the purchase price.
4.02 Herein defendants intend to present the following evidence:
a. Proposed Exhibits __, __, __,
Records of San Miguel Stock Transfer Service Corporation which would show from whom the
shares of stock listed in Annexes "A" and "B" were acquired, the Certificates of Stocks which
were cancelled as a result of the transactions, and the resulting Certificates of Stock in the names
of the present stockholders listed in Annexes "A" and "B," and upon whose instructions the
transfers and the corresponding cancellation of Certificates of Stock and the issuance of new
Certificates of Stock were made;
b. Proposed Exhibits __, __, __,
Records of the United Coconut Planters Bank which would show borrowings of the
companies listed in Annexes "A" and "B", or companies affiliated or associated with them,
which were used to source payment of the shares of stock of the San Miguel Corporation
subject of this case.
4.03 Witnesses.
(a) Defendant Eduardo M. Cojuangco, Jr., who shall testify on the acquisition of the SMC
shares and the sources of the funds utilized in the acquisition of the same. He will also
testify on the injury that he has suffered as a consequence of the sequestration of the
SMC shares listed in Annex "B" and the filing of the present suit.
(b) A representative of the United Coconut Planters Bank who will testify in regard
the loans which were used to source the payment of the purchase price of the SMC
shares of stock.
(c) A representative of the CIIF Oil Mills who will testify in regard the loans or
credit advances which were used to source the payment of the purchase price of the
SMC shares of stock.
d) A representative of San Miguel Stock Transfer Service Corporation who will testify on
the records referred to in paragraph 4.02(a).
4.04. Herein defendants reserve the right to present such other evidence as may be warranted
during the course of the trial of the above-entitled case.69 (underscoring and emphasis supplied)
Evidently, the identity of the various sources in funding the stock purchase became pronounced
during the pre-trial. The statements are clear admission on respondents’ part that the
purchase price of the subject SMC shares were paid, either in whole or in part, out of loans
and credit advances from the UCPB and CIIF Oil Mills.
Had there been other sources, Cojuangco and the Cojuangco companies would have readily
mentioned them at the pre-trial stage where all documents intended to be presented during trial
with a statement of the purposes of their offer70 should be stated. The reservation to present other
evidence was, it bears noting, conditioned only on what may be warranted in the course of trial.
Respondents having admitted that such loans and credit advances funded the acquisition of
the SMC shares, the plaintiff-Republic did not have to present proof thereof anymore. For
judicial admissions do not require proof71 to establish that UCPB loans and CIIF Oil Mills
credit advances financed the stock purchase transaction of subject SMC shares.
The majority holds that Cojuangco, et al.’s joint Pre-Trial Brief did not submit or disclose what
these loans were, since they were merely placed under "Proposed Evidence" which were not yet
intended as admissions of any fact.
While the majority agrees that certain statements in a pre-trial brief can be the source of
admissions, it limits them to those clearly identified by a submitting party as expressly admitted
facts.
I do take exception to this hard-and-fast rule.
Bearing in mind the purpose of pre-trial which is full disclosure to avoid surprise, Cojuangco, et
al.’s Pre-Trial Brief undoubtedly presents in a capsule the defense’s version of the case.
In Republic v. Sarabia,72 the Court found further enlightenment from a party’s Pre-trial Brief in
arriving as to the precise time at which just compensation should be fixed (i.e., as of the time of
actual taking of possession by the expropriating entity), which was found to be sometime in
1956. The Court therein did not stop with the admissions in the Answer but appreciated the
submissions in the Pre-Trial Brief to buttress the same. Aside from lifting those under the sub-
heading of "Admissions," it considered those under "Brief Statement of Respondent’s Claim"
that presented the proposed version of the party without the benefit of having elicited an
acceptance of the stipulation from the other party. The pertinent portion of that decision reads:
Besides, respondents no less averred in their Pre-Trial Brief:
I. BRIEF STATEMENT OF THE RESPONDENTS' CLAIM
1. That the defendants are the owners of that certain parcel of land located at Pook, Kalibo,
Aklan, Philippines, which is covered by Original Certificate Title No T-1559-6. A portion of the
land has been occupied by the plaintiff for many years now which portion of land is indicated
on the sketch plan which is marked Annex 'B of the complaint.
xxx xxx xxx
I1. ADMISSION
xxx xxx xxx
2. That this land has been in the possession of the plaintiff for many years now without paying
any rental to the defendants. (Emphasis supplied)
xxx xxx xxx
Surely, private respondents' admissions in their Answer and Pre-Trial Brief are judicial
admissions which render the taking of the lot in 1956 conclusive or even immutable. And well-
settled is the rule that an admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. A judicial admission is an admission made
by a party in the course of the proceedings in the same case, for purposes of the truth of some
alleged fact, which said party cannot thereafter disprove. Indeed, an admission made in the
pleading cannot be controverted by the party making such admission and are conclusive as to
him, and that all proofs submitted by him contrary thereto or inconsistent therewith should be
ignored whether objection is interposed by a party or not.73 (underscoring supplied)
Indeed, the Rules re-echo that "[t]he parties are bound by the representations and statements in
their respective pre-trial briefs."74 In fact, in the present case, the Sandiganbayan’s Pre-Trial
Order reminded the parties:
x x x At this stage, the plaintiff then reiterated its earlier request to consider the pre-trial
terminated. The Court sought the positions of the other parties, whether or not they too were
prepared to submit their respective positions on the basis if what was before the Court at pre-
trial. All of the parties, in the end, have come to an agreement that they were submitting their
own respective positions for purposes of pre-trial on the basis of the submissions made of record.
(underscoring supplied)
One such admission is the submission in Cojuangco, et al.’s joint Pre-Trial Brief that revealed
the identity of the loans as advances from CIIF Oil Mills and loans from UCPB. They are bound
by this representation in their Pre-Trial Brief, at least, insofar as the basic fact that the
borrowings were obtained from CIIF Oil Mills and UCPB.
Cojuangco, et al. are not bound, of course, to ventilate during trial the full details of these loan
transactions. As correctly stated by the majority opinion, the witnesses and documents might or
might not be presented at all. The Republic, meanwhile, asserts that the specific details thereof
are no longer necessary to prove its case.
The express condition that the plaintiff presents first its evidence is inherent in every proceeding.
In fact, a defendant may file a demurrer to evidence after the presentation of plaintiff’s evidence.
The option to avail of the opportunity to present defense evidence is the call of the defendant, but
he must be mindful of whatever consequences an omission thereof may present, which will be
discussed hereunder.
It is also observed that during the pre-trial conference, the Sandiganbayan was stuck in
belaboring the extraction of "specifics of the identification of these wrongs or omissions."75 If
there was a need for a definite statement of matters which were not averred with sufficient
particularity, it should have been the defendants who filed at the outset a motion for a bill of
particulars. That all the defendants were able to intelligently prepare their respective responsive
pleadings can only mean that the allegations of the Complaint were sufficiently clear to them.
The Sandiganbayan could have proceeded in accomplishing the other objectives of a pre-trial
and allowing the parties to lay down their available evidence, whatever these may be, without
pre-judging the inadequacy and competency of their evidence or even if the sets of evidence
were far from what the Sandiganbayan perceived to be ideal. It, however, even went into a
premature determination of the probative value of COA reports which were yet to be offered and
weighed.
I commend the Sandiganbayan for its vigilance in facilitating the pre-trial. The Sandiganbayan
can look behind its frustration and remonstration, and console itself with the realization that, at
the end of the day, it can only do so much in conducting a perfect pre-trial. Ultimately, how to
advance the theory of the case or defense rests on the parties and their counsels.
Without the Sandiganbayan anticipating, the Republic perhaps took that conscious and cautious
step in proceeding forward and submitting that there was no need, after all, to present
documentary and testimonial evidence in light of the judicial admissions in its favor and the
prima facie circumstances laid down by jurisprudence, of which the Court can take judicial
notice, that could already sufficiently paint the entire cause of action, absent any refuting
evidence coming from the defendants.
Judicial admissions are generally considered conclusive to the concerned party. Certain
jurisprudence, however, provides the admitting party some leeway to vary or override such
admissions, provided the matter is identified as an issue and the admitting party presents contrary
evidence during trial. In one case, it was held:
In addition, despite Urdaneta City’s judicial admissions, the trial court is still given leeway to
consider other evidence to be presented for said admissions may not necessarily prevail over
documentary evidence, e.g., the contracts assailed. A party’s testimony in open court may also
override admissions in the Answer.76 (underscoring supplied)
On the premise that the admissions were not conclusive prior to trial, Cojuangco, et al., however,
did not go to trial even to attempt to modify their earlier judicial admissions. Hence, their judicial
admissions eventually solidified.
To the extent that the stock acquisition was exclusively funded by such loans and credit
advances, however, the question cannot be immediately resolved in favor of the plaintiff via a
summary judgment.
In the Resolution assailed in G.R. No. 166859, the Sandiganbayan committed no grave abuse of
discretion in giving respondents – the party against whom the motion for summary judgment was
directed – the benefit of all favorable inferences in viewing the evidence. Any doubt as to the
existence of an issue of fact must be resolved against the movant.77
In G.R. No. 180702, however, the Sandiganbayan erred when it still adopted the same position,
despite the conduct or opportunity of trial. Particularly, the Sandiganbayan erred when it still
counted on the plaintiff to prove the already admitted fact that such loans and credit advances
funded, in whole or in part, the acquisition of subject SMC shares. Notably, respondents failed to
negate, vary or override, on grounds allowed by the rules, their standing admission. That such
loans and credit advances fully or partially bankrolled the stock purchase can thus no longer be
contradicted.
On the exclusivity of the funds, it is not in the plaintiff’s interest to prove the allegation that
private funds partly financed the stock purchase. Conversely stated, the plaintiff-Republic may
not be expected to prove the negative assertion that no other source of funding was utilized to
buy the subject SMC shares. It need not go forward to prove that respondents did not use private
funds. That the stock purchase was not exclusively funded by such loans and credit advances is a
matter of defense on the part of respondents, upon which case the burden of evidence shifts.78
Herrera v. Court of Appeals79 teaches that it is not incumbent upon the plaintiff to adduce
positive evidence to support a negative averment (i.e., acquired without using private funds)
the truth of which is fairly indicated by established circumstances and which, if untrue, could
readily be disproved by the production of documents or other evidence probably within the
defendant’s possession or control.
Even assuming arguendo that "without using private funds" is elemental to the cause of action of
the plaintiff who must bear the burden of proof, Philippine Savings Bank v. Geronimo80 instructs
that "negative allegations need not be proved even if essential to one’s cause of action or
defense if they constitute a denial of the existence of a document the custody of which
belongs to the other party."81
This category of relevant facts that need not be proven by evidence is identified as "facts
peculiarly within the knowledge of the opposite party."82
Cojuangco, et al. could have simply presented in evidence documents under their custody, if any,
to show that other financial resources were used to finance the stock purchase, which may have
qualified, on allowable grounds, their earlier judicial admission and accordingly crumbled the
plaintiff’s case into fractions.
Whichever way of looking at the matter of "non-usage or usage of private funds" – either as a
"negative averment" on the part of the Republic or an "affirmative defense" on the part of
Cojuangco, et al. – the bottom line remains the same: the burden of evidence that there were
other loans that partly funded the purchase of the SMC shares was borne by Cojuangco, et al.,
failing which is fatal to them.
It bears reiterating that this opportunity for Cojuangco, et al. to (i) disprove the Republic’s
negative averment that no private funds were used, or (ii) otherwise prove the defense’s
affirmative allegation that private funds or partly private funds were used explains why it was
proper to deny the Republic’s motion for summary judgment and go to trial. Cojuangco, et al.
opted not to avail of that opportunity. Consequently, the negative averment stands and the
affirmative defense fails.
This same blunder was committed by Cojuangco in the case of Republic v. Estate of Hans
Menzi83 wherein he purposely skipped the presentation of his defense evidence and consequently
failed to prove his affirmative allegations. The Court therein rejected Cojuangco’s contention
that his allegation that the shares were registered in his name as a nominee of Hans Menzi was
not an affirmative defense but a specific denial, as such the allegation need not be proven unless
the Republic presents adequate evidence to prove its case.
It is procedurally required for each party in a case to prove his own affirmative allegations by the
degree of evidence required by law. In civil cases such as this one, the degree of evidence
required of a party in order to support his claim is preponderance of evidence, or that evidence
adduced by one party which is more conclusive and credible than that of the other party. It is
therefore incumbent upon the plaintiff who is claiming a right to prove his case. Corollarily, the
defendant must likewise prove its own allegations to buttress its claim that it is not liable.
The party who alleges a fact has the burden of proving it. The burden of proof may be on the
plaintiff or the defendant. It is on the defendant if he alleges an affirmative defense which is not
a denial of an essential ingredient in the plaintiff’s cause of action, but is one which, if
established, will be a good defense – i.e., an "avoidance" of the claim.
In the instant case, Cojuangco’s allegations are in the nature of affirmative defenses which
should be adequately substantiated. He did not deny that Bulletin shares were registered in his
name but alleged that he held these shares not as nominee of Marcos, as the Republic claimed,
but as nominee of Menzi. He did not, however, present any evidence to support his claim and, in
fact, filed a Manifestation dated July 20, 1999 stating that he "sees no need to present any
evidence in his behalf."84 (emphasis and underscoring supplied)
In the same manner, Cojuangco admitted in the present case that he purchased the SMC shares of
stock but averred that he used the proceeds of certain loans to finance the purchase of the SMC
shares. This defense by way of avoidance of the plaintiff’s claim could have buttressed the
defendants’ claim that not a single peso of public money was used in buying the shares.
Cojuangco, however, took a similar route in the present case, despite the myriad of admissions,
judicial notices, and prima facie circumstances that, absent any varying evidence, consequently
fortified the Republic’s case. Indeed, "in the final analysis, the party upon whom the ultimate
burden lies is to be determined by the pleadings, not by who is the plaintiff or the
defendant."85
After the trial (or the lack thereof despite the trial settings), it became clear that the borrowings
from CIIF Oil Mills and UCPB exclusively funded the purchase of the SMC shares.
COCONUT LEVY FUNDS AS PUBLIC FUNDS
For a clear picture of the genesis of the coconut levy funds, the historical narration in the 1989
case of Philippine Coconut Producers Federation, Inc. (COCOFED) v. Presidential Commission
on Good Government86 bears recalling, viz.:
The COCONUT LEVY FUNDS:
The sequestration of the corporations and the other acts complained of were undertaken by the
PCGG preparatory to the filing of suit in the Sandiganbayan against Marcos and his associates
for the illicit conversion of the coconut levy funds, purportedly channeled through the
COCOFED and the other sequestered businesses, into private pelf. These funds fall into four
general classes, viz.: (a) the Coconut Investment Fund created under R.A. 6260 (effective June
19, 1971); (b) the Coconut Consumers Stabilization Fund created under PD 276 (effective
August 20, 1973); (c) the Coconut Industry Development Fund created under PD 582 (effective
November 14, 1974); and (d) the Coconut Industry Stabilization Fund created under P.D. 1841
(effective October 2, 1981).
The Coconut Investment Fund (CIF):

The Coconut Investment Fund, or CIF, was put up in 1971 by R.A. 6260 which declared it to be
the national policy to accelerate the development of the coconut industry through the provision
of adequate medium and long term financing for capital investment in the industry. A levy of
P0.55 was imposed on the first domestic sale of every 100 kilograms of copra or equivalent
coconut product, fifty centavos (P0.50) of which accrued to the CIF. The Philippine Coconut
Administration (or PHILCOA) received three centavos (P0.03) of the five remaining, and the
balance was placed "at the disposition of the recognized national association of coconut
producers with the largest x x x membership"– which association was declared by PHILCOA to
be petitioner COCOFED.
The CIF was to be used exclusively to pay for the Philippine Government's subscription to the
capital stock of the Coconut Investment Company (CIC), a corporation with a capitalization of
P100,000,000.00 created by the statute to administer the Fund, as has already been stated, and to
invest its capital in financing "agricultural, industrial or other productive (coconut) enterprises"
qualified under the terms of the statute to apply for loans with the CIC. The State was to initially
subscribe to CIC's capital stock "for and on behalf of the coconut farmers," to whom such shares
were supposed to be transferred "upon full payment (with the collections on the levy) of the
authorized capital stock x x x or upon termination of a ten-year period from the start of the
collection of the levy x x, whichever comes first." The scheme, in short, called for the use of the
CIF– funds collected mainly from coconut farmers– to pay for the CIC shares of stock to be
subscribed by the Government and held by it until the levy was lifted, whereupon the
Government was to "convert" the receipts issued to the farmers (as evidence of payment of the
levy) "into shares of stock"– this time in the farmers' names– in the new, private corporation to
be formed by them at such time, conformably with the provisions of the law.
The levy imposed by R.A. 6260 was collected from 1972 to 1982.
The Coconut Consumers Stabilization Fund (CCSF)
P.D. 276 established a second fund on August 20, 1973, barely a year after the creation of the
CIF. The decree imposed a "Stabilization Fund Levy" of fifteen pesos (P15.00) on the first sale
of every 100 kilograms of copra resecada or equivalent product. The revenues were to be
credited to the Coconut [Consumers] Stabilization Fund (CCSF) which was to be used to
subsidize the sale of coconut-based products at prices set by the Price Control Council, in order
to stabilize the price of edible oil and other coconut oil-based products for the benefit of
consumers. The levy was to be collected for only one year. The CCSF however became a
permanent fund under PD 414.
The Coconut Industry Development Fund (CIDF):
On November 14, 1974, PD 582 was promulgated setting up yet another "permanent fund x x
(this time to) finance the establishment, operation and maintenance of a hybrid coconut seednut
farm x x (and the implementation of) a nationwide coconut replanting program" "using
precocious high-yielding hybrid seednuts x x to (be) distribute(d), x x free, to coconut farmers."
The fund was denominated the Coconut Industry Development Fund, or the CIDF. Its initial
capital of P100 million was to be paid from the CCSF, and in addition to this, the PCA was
directed to thereafter remit to the fund "an amount equal to at least twenty centavos (P0.20) per
kilogram of copra resecada or its equivalent out of its current collections of the coconut
consumers stabilization levy." The CIDF was assured of continued contribution from the
permanent levy in the same amount deemed to be "automatically imposed" in the event of the
lifting of the Stabilization Fund Levy.
The Coconut Industry Investment Fund (CIIF)
The various laws relating to the coconut industry were codified in 1976; promulgated on October
21 of that year was PD 961 or the "Coconut Industry Code," which later came to be known as the
"Revised Coconut Industry Code" upon its amendment by PD 1468, effective June 11, 1978. The
Code provided for the continued enforcement of the Stabilization Fund Levy imposed by PD 276
and for the use of the CCSF and the CIDF for substantially the same purposes specified by the
enactments ordaining their creation.
A new provision was however inserted in the Code, authorizing the use of the balance of the
CIDF not needed to finance the replanting program and other authorized projects, for the
acquisition of "shares of stock in corporations organized for the purpose of engaging in the
establishment and operation of industries, x x commercial activities and other allied business
undertakings relating to coconut and other palm oil indust(ries)." From this fund thus created, the
Coconut Industry Investment Fund or the CIIF, were purchased the shares of stock in what have
come to be known as the "CIIF companies"– the sequestered corporations into which said CIIF
(Coconut Industry Investment Fund) was heavily invested after its creation.
The Coconut Industry Stabilization Fund (CISF): (Formerly CCSF)
The collection of the CCSF and the CIDF was suspended for a time in virtue of PD 1699.
However, on October 2, 1981, PD 1841 was issued reviving the levies and renaming the CCSF
the Coconut Industry Stabilization Fund, or the CISF, to which accrued the new collections. The
impost was in the amount of P50.00 for every 100 kilos of copra resecada or equivalent product
delivered to exporters and other copra users. The funds collected were to be apportioned among
the CIDF, the COCOFED, the PCA, and the "bank acquired for the benefit of the coconut
farmers under PD 755" referring to the United Coconut Planters Bank or the UCPB.
The AGENCIES INVOLVED:
As may be observed, three agencies played key roles in the collection, management,
investment and use of the coconut levy funds: (a) the Philippine Coconut Authority (PCA),
formerly the Philippine Coconut Administration or the PHILCOA; (b) the COCOFED;
and (c) the UCPB. Charged with the duty to "receive and administer the funds provided by
law," the Philippine Coconut Authority or the PCA was created on June 30, 1973 by P.D. 232 to
replace and assume the functions of (1) the Philippine Coconut Administration or PHILCOA
(which had been established in 1954), (2) the Coconut Coordinating Council (CCC), and (3) the
Philippine Coconut Research Institute (PHILCORIN). By virtue of the Decree, the PCA took
over the collection of the CIF Levy under RA 6260 in 1973, while subsequent statutes, to wit,
PD 276 (in relation to PD 414), PD 582, and PD 1841, empowered it specifically to manage the
CCSF, the CIDF, and the CISF, from the time of their creation. Under the laws just mentioned,
the PCA, as the government arm that "formulate(s) x x (the) general program of development for
the coconut x x and palm oil indust(ries)," is allotted a share in the funds kept in its trust. Its
governing board is composed of members coming from the public and private sectors, among
them representatives of COCOFED.
The Philippine Coconut Producers Federation, Inc. or the COCOFED, as the private national
association of coconut producers certified in 1971 by the PHILCOA as having the largest
membership among such producers, receives substantial portions of the coconut funds to finance
its operating expenses and socio-economic projects. R.A. 6260 entrusted it with the task of
maintaining "continuing liaison with the different sectors of the industry, the government and its
own mass base." Its president sits on the governing board of the PCA and on the Philippine
Coconut Consumers Stabilization Committee, the agency assisting the PCA in the administration
of the CCSF. It is also represented in the Board of Directors of the CIC and of two (2) CIIF
companies COCOMARK (the COCOFED Marketing Corporation) and COCOLIFE (the United
Coconut Planters' Life Insurance Co.).
The United Coconut Planters Bank (or the UCPB) is a commercial bank acquired "for the benefit
of the coconut farmers" with the use of the Coconut Consumers Stabilization Fund (CCSF) in
virtue of P.D. 755, promulgated on July 29, 1975. The Decree authorized the Bank to provide the
intended beneficiaries with "readily available credit facilities at preferential rates." It also
authorized the distribution of the Bank's shares of stock, free, to the coconut farmers; and some
1,405,366 purported recipients have been listed as UCPB stockholders as of April 10, 1986.
The UCPB was thereafter empowered by PD 1468 to "(make) investments for the benefit of the
coconut farmers" using that part of the CIDF referred to as the CIIF. Thus were organized the
"CIIF companies" subject of the sequestration orders herein assailed. As in the case of the shares
of stock in the UCPB, the law provided for the "equitable distribution" to the coconut farmers,
free, of the investments made in the CIIF companies. Among the corporations in which the
UCPB has come to have substantial shareholdings are the COCOFED Marketing Corporation
(COCOMARK), United Coconut Planters' Life Insurance (COCOLIFE) GRANEX, ILICOCO,
Southern Island Oil Mill, Legaspi Oil of Davao City and of Cagayan de Oro City, Anchor
Insurance Brokerage, Inc., Southern Luzon Coconut Oil Mills, and San Pablo Oil Manufacturing
Co., Inc. Some of these corporations in turn acquired UCPB shares of stock as well as
shareholdings in the San Miguel Corporation.87 (emphasis and underscoring supplied)
The foregoing historical account has settled that UCPB and CIIF Oil Mills owe their existence to
the coconut levy funds and the martial law issuances.88 The Court went on in the same case to
pronounce:
The utilization and proper management of the coconut levy funds, raised as they were by
the State's police and taxing powers, are certainly the concern of the Government. It cannot
be denied that it was the welfare of the entire nation that provided the prime moving factor for
the imposition of the levy. It cannot be denied that the coconut industry is one of the major
industries supporting the national economy. It is, therefore, the State's concern to make it a
strong and secure source not only of the livelihood of a significant segment of the population but
also of export earnings the sustained growth of which is one of the imperatives of economic
stability. The coconut levy funds are clearly affected with public interest. Until it is
demonstrated satisfactorily that they have legitimately become private funds, they must
prima facie and by reason of the circumstances in which they were raised and accumulated
be accounted subject to the measures prescribed[.]89 (emphasis and underscoring supplied)
Still in the same case,90 the Court held that "[t]he coconut levy funds being clearly affected with
public interest, it follows that corporations formed and organized from those funds, and all assets
acquired therefrom, could also be regarded as ‘clearly affected with public interest.’"
In the 2001 case of Republic v. COCOFED,91 the Court even categorically stated that "[t]he
coconut levy funds are not only affected with public interest; they are, in fact, prima facie
public funds."
Once more, in the 2007 case of Republic v. Sandiganbayan (First Division),92 the Court
recapitulated:
Opinions had, for some time, been divided as to the nature and ownership of a fund with public
roots but with private fruits, so to speak. The Court, however, veritably wrote finis to both issues
in at least seven (7) ill-gotten cases decided prior to the filing of the present petition in 1995, and
in several more subsequent cases, notably in Republic v. Cocofed where the Court declared the
coconut levy fund as partaking the nature of taxes, hence is not only affected with public
interest, but "are in fact prima facie public funds."
xxx
In Republic v. COCOFED, the Court observed that the lifting of sequestration in coconut levy
companies does not relieve the holders of stock in such companies of the obligation of
proving how that stock had been legitimately transferred to private ownership. x x x93
Since the UCPB was acquired by the government using the coconut levy funds,94 and "all assets
acquired therefrom" are prima facie public in character, it follows that the coco levy funds
remained public in character upon their transfer, pursuant to Presidential Decree (P.D.) No.
755,95 from the Philippine Coconut Authority to the UCPB. The funds remained in the
government’s possession throughout the entire transaction.
UCPB and CIIF Oil Mills, all of which are coconut levy companies, had financed the purchase
by respondents of the subject SMC shares. Undeniably, the subject SMC shares can be
inescapably treated as fruits of funds that are prima facie public in character. Have the subject
SMC shares, as the by-product of the proceeds of the loan and credit advances, legitimately
become private in character?
Given the Court’s pronouncement that coconut levy funds are prima facie public in nature, the
holder of shares of stock that trace their roots from such funds must, in light of the immediately-
quoted portion of the Court’s decision in the 2007 case of Republic v. Sandiganbayan (First
Division), overcome the prima facie presumption or otherwise prove that the shares are
legitimately privately owned.
In view of that opportunity that was yet to be availed by respondents during trial, the
Sandiganbayan exercised sound discretion in denying the plaintiff’s motion for summary
judgment by the assailed Resolution in G.R. No. 166859. A court, when confronted with this
situation, is justified in not granting a summary judgment. This marked difference provides an
alert tab for courts to proceed to trial.
The same posture cannot stand, however, with respect to the Sandiganbayan’s subsequent
Decision of November 28, 2007, challenged in G.R. No. 180702, wherein respondents already
abstained from presenting countervailing evidence after affording them the chance. In other
words, Cojuangco, et al. failed to overcome the prima facie public character of the nature of the
SMC shares as fruits of pubic funds.
Burden of proof is the duty of any party to present evidence to establish his claim or defense by
the amount of evidence required by law, which is preponderance of evidence in civil cases. The
party, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of
proof to obtain a favorable judgment.96 Upon the plaintiff in a civil case, the burden of proof
never parts, though in the course of trial, once the plaintiff makes out a prima facie case in his
favor, the duty or the burden of evidence shifts to the defendant to controvert the plaintiff's prima
facie case; otherwise, a verdict must be returned in favor of the plaintiff.97 It is the burden of
evidence which shifts from party to party depending upon the exigencies of the case in the course
of trial.98
The term prima facie evidence denotes evidence which, if unexplained or uncontradicted, is
sufficient to sustain the proposition it supports or to establish the facts.99 Prima facie means it is
"sufficient to establish a fact or raise a presumption unless disproved or rebutted."100
In fine, plaintiff having shown that the SMC shares came into fruition from coco levy funds that
are prima facie public funds, it was incumbent upon respondents to go forward with
contradicting evidence. This they did not do.
Respondents merely opted to raise a question of law, the resolution of which the Sandiganbayan
erroneously evaded in its Decision. They maintain that the proceeds of the loan belonged to them
in view of the nature of a loan, citing Civil Code provisions that a person who receives a loan of
money acquires ownership thereof. They explain that the money loaned once granted belongs in
ownership to the borrower who has the obligation only to pay back the amount.
Articles 1933 and 1953 of the Civil Code read:
Art. 1933. — By the contract of loan, one of the parties delivers to another, either something not
consumable so that the latter may use the same for a certain time and return it, in which case the
contract is called a commodatum; or money or other consumable thing upon the condition that
the same amount of the same kind and quality shall be paid, in which case the contract is simply
called a loan or mutuum.
Commodatum is essentially gratuitous.
Simple loan may be gratuitous or with a stipulation to pay interest.
In commodatum the bailor retains the ownership of the thing loaned, while in simple loan,
ownership passes to the borrower.
xxxx
Art. 1953. — A person who receives a loan of money or any other fungible thing acquires the
ownership thereof, and is bound to pay to the creditor an equal amount of the same kind and
quality.
Respondents posit that an implied trust101 wherein the price of the property bought is "paid by
another" could not arise since the borrower, in a loan contract involving a fungible object like
money, acquires ownership of money.
Respondents’ characterization of the legal complexion of the transaction does not lie.
First, the Sandiganbayan case is not a simple collection case for the return of the very same
series of money lent. Second, respondents’ position presupposes that there is nothing illegal,
invalid or improper in the grant of the loan. Third, respondents’ position limits the depiction of a
trust relationship to only one type.
Executive Order No. 1102 issued on February 28, 1986 states:
xxxx
SECTION 2. The [PCGG] shall be charged with the task of assisting the President in regard to
the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos,
his immediate family, relatives, subordinates and close associates, whether located in the
Philippines or abroad, including the takeover or sequestration of all business enterprises and
entities owned or controlled by them, during his administration, directly or through
nominees, by taking undue advantage of their public office and/or using their powers,
authority, influence, connections or relationship. (emphasis and underscoring supplied)
Executive Order No. 2103 issued on March 12, 1986 states:
xxxx
WHEREAS, the Government of the Philippines is in possession of evidence showing that there
are assets and properties purportedly pertaining to former President Ferdinand E. Marcos, and/or
his wife, Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates,
dummies, agents or nominees which had been or were acquired by them directly or indirectly,
through or as a result of the improper or illegal use of funds or properties owned by the
Government of the Philippines or any of its branches, instrumentalities, enterprises, banks or
financial institutions, or by taking undue advantage of their office, authority, influence,
connections or relationship, resulting in their unjust enrichment and causing grave damage and
prejudice to the Filipino people and the Republic of the Philippines;
xxxx
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, hereby;
xxxx
(4) Prohibit former President Ferdinand Marcos and/or his wife, Imelda Romualdez Marcos,
their close relatives, subordinates, business associates, dummies, agents, or nominees from
transferring, conveying, encumbering, concealing or dissipating said assets or properties in the
Philippines and abroad, pending the outcome of appropriate proceedings in the Philippines to
determine whether any such assets or properties were acquired by them through or as a
result of improper or illegal use of or the conversion of funds belonging to the Government
of the Philippines or any of its branches, instrumentalities, enterprises, banks or financial
institutions, or by taking undue advantage of their official position, authority, relationship,
connection or influence to unjustly enrich themselves at the expense and to the grave damage
and prejudice of the Filipino people and the Republic of the Philippines.
x x x x (emphasis and underscoring supplied)
E.O. No. 2 describes ill-gotten assets as, inter alia, shares of stock acquired through or as a result
of the improper or illegal use of or the conversion of funds or properties owned by the
Government or its branches, instrumentalities, enterprises, banks or financial institutions.
The scope of inquiry on ill-gotten shares of stock is not restricted to those that were personally
"acquired through" public funds in the form of a simple direct purchase which, crude and
unsophisticated it may seem, is illegal per se. Having conceivably taken into account the
ingenious and "organized pillage"104 perpetrated by the Marcos regime, E.O. No. 2 saw it fit to
include those that were "acquired as a result of the improper or illegal use of" public funds.
Notably, E.O. No. 2 covers acquisitions resulting not only from illegal use but also from
improper use of public funds or properties, not to mention conversion thereof.
That the law includes funds from government banks and financial institutions bolsters this
conclusion and readily negates respondents’ vivid illustrations of bank loan transactions.
Respondents’ position only attempts to explain that the subject SMC shares were not directly
acquired through public funds, but it does not negate the other modes of acquisition (i.e.,
acquired as a result of the improper or illegal use or conversion of public funds) which could
take on several forms.
"Ill-gotten wealth" is hereby defined as any asset, property, business enterprise or material
possession of persons within the purview of Executive Orders Nos. 1 and 2, acquired by them
directly, or indirectly thru dummies, nominees, agents, subordinates and/or business associates
by any of the following means or similar schemes:
(1) Through misappropriation, conversion, misuse or malversation of public funds or

raids on the public treasury;
(2) Through the receipt, directly or indirectly, of any commission, gift, share, percentage,
kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or position
of the official concerned.
(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the

government or any of its subdivisions, agencies or instrumentalities or government-
owned or controlled corporations;
(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity
or any other form of interest or participation in any business enterprise or undertaking;
(5) Through the establishment of agricultural, industrial or commercial monopolies or

other combination and/or by the issuance, promulgation and/or implementation of
decrees and orders intended to benefit particular persons or special interests; and
(6) By taking undue advantage of official position, authority, relationship or influence for
personal gain or benefit.105 (underscoring supplied)
The act of respondents in employing the instrumentality of a loan transaction and exploiting the
legal import thereof does not thus save the day for them, so to speak. The defense’s thesis
shatters in the context of ill-gotten wealth cases.
The majority holds that ill-gotten wealth must be acquired or taken through "illegal means" only.
This limited restatement of the elements and modes of acquiring ill-gotten wealth goes against
the expanded and developed nature and dynamics of ill-gotten wealth as legally defined above
and which was quoted and applied in the Hans Menzi case.
Interestingly, the majority cites the same basic document of Executive Order No. 2 (March 12,
1986) which, in fact, expressly recognizes that acquisitions of ill-gotten wealth may result from
either an illegal or improper use or conversion of public funds.
A discussion nonetheless, in no uncertain terms, of the series of legal provisions and rules vis-à-
vis the acts and omissions of Cojuangco, et al. in concluding the presence of illegal means of
acquisition is in order.
BREACH OF TRUST AND FIDUCIARY DUTY

In determining whether Cojuangco betrayed public trust, took undue advantage of authority, or
violated his fiduciary duty as a director or officer, the question as to whether he held such
positions in the entities involved must first be settled.
It bears noting and reiterating that Cojuangco admitted in his Answer to the Third Amended
Complaint that he held, inter alia, the positions of President and Member of the Board of
Directors of the UCPB as well as Director of the Philippine Coconut Authority (PCA):
2.01 Herein defendant admits paragraph 4 only insofar as it alleges the following:
(a) That herein defendant has held the following positions in government: Governor of
Tarlac, Congressman of the then First District of Tarlac, Ambassador-at-Large,
Lieutenant Colonel in the Philippine Air Force and Director of the Philippine Coconut
Authority;
(b) That he held the following positions in private corporations: Member of the Board of
Directors of the United Coconut Oil Mills, Inc.; President and member of the Board of
Directors of the United Coconut Planters Bank, United Coconut Planters Life
Assurance Corporation, and United Coconut Chemicals, Inc.; Chairman of the Board
and Chief Executive Officer of San Miguel Corporation; x x x106 (emphasis and
underscoring supplied)
What he disputes, however, is whether he had served as an officer or a member of the governing
bodies of the PCA and UCPB at the time the funds used to purchase the SMC shares were
obtained in 1983. The Sandiganbayan found this matter a disputed fact.107
Cojuangco’s asseverations and the Sandiganbayan’s stance ignore the glaring admissions in his
Answer.
The Complaint made the following allegation:
12. Defendant Eduardo Cojuangco, Jr., served as a public officer during the Marcos
Administration. During the period of his incumbency as a public officer, he acquired assets,
funds, and other property grossly and manifestly disproportionate to his salaries, lawful income
and income from legitimately acquired property.108 (emphasis supplied),
which underscored portion was deemed admitted by him when he did not specifically deny it in
his Answer, viz:
5.00. Herein defendant denies paragraph 12 of the complaint, the truth being that whatever assets
he has were acquired lawfully and are not "grossly and manifestly disproportionate to his
salaries, lawful income and income from legitimately acquired property".109 (emphasis supplied)
Clearly, Cojuangco’s specific denial concerns only the matter of the acquisition of his assets.
Without specifically denying the matter of his having served "as a public officer during the
Marcos Administration," the same is deemed admitted.110
Judicial notice can be taken of the political history that 1983 (when the subject SMC shares were
acquired) formed part of the Marcos Administration. Cojuangco, not having specifically denied
or even qualifiedly admitted his tenure as public officer during the Marcos Administration vis-à-
vis his earlier admissions on the specific public offices or directorships he had held, the
ineluctable conclusion is that he held the positions of President and Member of the Board of
Directors of the UCPB and of Director of the PCA during the Marcos Administration or, at the
very least, in 1983.
The argument that Cojuangco was not a subordinate or close associate of the Marcoses is the
biggest joke to hit the century. Aside from the cited offices or positions of power over coconut
levy funds, Cojuangco admitted in Paragraph 3.01 of his Answer that on February 25, 1986,
Cojuangco left the Philippines with former President Ferdinand Marcos.
Clearly, the intimate relationship between Cojuangco and Marcos equates or exceeds that of a
family member or cabinet member, since not all of Marcos’s relatives or high government
ministers went with him in exile on that fateful date. If this will not prove the more than close
association between Cojuangco and Marcos, I do not know what will.
A SURVEY OF THE PERTINENT LAWS RELATIVE TO THE ESTABLISHMENT OF THE

PCA AND UCPB IS ALSO IN ORDER.
Republic Act No. 1145111 provided the initial manner of appointment and tenure of members of
the governing board of the Philippine Coconut Administration (Philcoa), the precursor of
present-day PCA, to wit:
CHAPTER III
Governing Body
Section 5. Composition and appointment— All corporate powers of the PHILCOA shall be
vested in, and exercised by a Board of Administrators consisting of five members to be
appointed by the President with the consent of the Commission on Appointments, three of whom
shall be coconut planters; Provided, That no person appointed to this board may serve as director
or more than two government or semi-government corporations. The President shall designate
from among the members of the Board its Chairman.
Section 6. Tenure and compensation— The members of the Board shall serve as designated by
the President of the Philippines in their respective appointments for a term of four years, but any
person to fill a vacancy shall serve only for the unexpired term of the member whom he
succeeds. The Chairman shall receive a salary of twelve thousand pesos per annum and each
member of per diem of twenty-five pesos for every meeting actually attended: Provided, That no
member shall earn more than one hundred pesos a month in per diems; Provided, further, that if
the member is a public official, he shall not be entitled to any per diem. (emphasis and
Almost 20 years later or on June 30, 1973, President Marcos issued P.D. No. 232 which created
the Philippine Coconut Authority (PCA) by abolishing the Philcoa, the Coconut Coordinating
Council, and the Philippine Coconut Research Institute, viz.:
Section 3. Powers and Functions. To carry out the purposes and objectives mentioned in the
preceding section, the Authority, through its Board as hereinafter constituted, is hereby vested
with the following powers, in addition to those transferred to it under Section 6 of this Decree:
a. To formulate and adopt a general program of development for the coconut and other
palm oils industry;
xxx
d. To supervise, coordinate and evaluate the activities of all agencies charged with the
implementation of the various aspects of industry development, and to allocate and/or
coordinate the release of public funds in accordance with approved development
programs and projects;
xxx
f. To receive and administer funds provided by law; to draw, with the approval of the
President, funds from existing appropriations as may be necessary in support of its
program, and to accept donations, grants, gifts and assistance of all kinds from
international and local private foundations, associations or entities, and to administer the
same in accordance with the instructions or directions of the donor or, in default thereof,
in the manner it may in its direction determine;
g. To borrow the necessary funds from local and international financing institutions, and
to issue bonds and other instruments of indebtedness, subject to existing rules and
regulations of the Central Bank, for the purpose of financing programs and projects
deemed vital and necessary for the early attainment of its goals and objectives;
h. To formulate and recommend for adoption credit policies affecting production,

marketing and processing of coconut and other palm oils;
xxx
j. To enter into, make and execute contracts of any kind as may be necessary or incidental
to the attainment of its purposes and, generally, to exercise all the powers necessary to
achieve the purposes and objectives for which it is organized.
Section 4. Governing Board. The Authority shall be governed by a Board of eleven members,
who shall meet as often as necessary, composed of:
a. Three representatives at-large of the private sector, to be appointed by the President,

who shall have recognized competence in the many facets of the industry and be leaders
of the industry acknowledged by both the government and private sector members of the
coconut community;
b. The Chairman, National Science Development Board;
c. The Undersecretary of Agriculture and Natural Resources;
d. The Undersecretary of Trade;
e. The President, Philippine Coconut Producers Federation;
f. The Chairman, United Coconut Associations of the Philippines;
g. The Chairman of the Board, Coconut Investment Company;
h. The Director, Bureau of Plant Industry;
i. The Director, Bureau of Agricultural Extension.
A Chairman shall be designated by the President from the members of the Board. The Board
shall elect a Vice-Chairman who shall assume the functions of the Chairman, whenever the latter
is absent or incapacitated, and an Executive Committee of five from among its members, to
which it may delegate such powers as it deems fit. (emphasis and underscoring supplied)
Then, barely five years later, Pres. Marcos issued on June 11, 1978 P.D. No. 1468,112 which
provided:
xxxx
Section 4. Governing Board. — The corporate powers and duties of the Authority shall be
vested in and exercised by Board of seven (7) members to be appointed by the President, as
follows:
a) Two representatives of the Government, one of whom shall be designated by the

President as Chairman and the other as Vice-Chairman;
b) Three members recommended by the Philippine Coconut Producers Federation;
c) One member recommended by the United Coconut Association of the Philippines;
d) One member recommended by the owner and operator of the hybrid coconut seednut
farm herein authorized to be established.
The Board shall have the following additional powers and duties:
xxxx
c) To disburse the proceeds of the levies for the purposes herein authorized;
x x x x (emphasis and underscoring supplied)
From these amendments to the PCA charter, two things remain crystal clear – first, that the
members of PCA Board were to be appointed by the President either for a given term or, at the
very least, at his pleasure as the appointing authority; and second, that the members of the PCA
Board had been given vast authority in managing and disbursing the coconut levy funds, which
includes the corporations formed and organized therefrom and all assets acquired therefrom,
such as the CIIF Ill Mills.
Since appointment as member of the PCA Board is made by the President, judicial notice of
Cojuangco’s appointment by then President Marcos as PCA Director must be also taken, it being
an official act of the executive department of the Philippines.113 A sampling of available public
records in the form of PCA annual reports114 confirms that Cojuangco was a member of the
governing board of the PCA in the early 1980s.
With respect to the UCPB, Cojuangco’s description of it as a "private corporation" does not bind
the Court and cannot lend support to the proposition that the period during which he was the
UCPB President and Director is not within the scope of his subsequent admission as a "public
officer during the Marcos Administration."
UCPB was a public corporation during the period material to the complaint.
Paragraph 13, Section 2 of the Administrative Code of 1987115 provides:
(13) Government-owned or controlled corporation refers to any agency organized as a stock or

non-stock corporation, vested with functions relating to public needs whether governmental or
proprietary in nature, and owned by the Government directly or through its instrumentalities
either wholly, or where applicable as in the case of stock corporations, to the extent of at least
fifty-one (51) percent of its capital stock: Provided, That government-owned or controlled
corporations may be further categorized by the Department of the Budget, the Civil Service
Commission, and the Commission on Audit for purposes of the exercise and discharge of their
respective powers, functions and responsibilities with respect to such corporations. (underscoring
supplied)
Even under the 1973 Constitution, this framework was established with the issuance of
Presidential Decree No. 2029116 which recognized the ruling that "under the [1973] Constitution,
government-owned or controlled corporations include those created by special law as well as
those through the Corporation Code[.]"117 Section 2 of P.D. No. 2029 reads:
Section 2. Definition. A government-owned or controlled corporation is a stock or a non-stock

corporation, whether performing governmental or proprietary functions, which is directly
chartered by a special law or if organized under the general corporation law is owned or
controlled by the government directly, or indirectly through a parent corporation or subsidiary
corporation, to the extent of at least a majority of its outstanding capital stock or of its
outstanding voting capital stock;
Provided, that a corporation organized under the general corporation law under private
ownership at least a majority of the shares of stock of which were conveyed to a government
financial institution, whether by a foreclosure or otherwise, or a subsidiary corporation of a
government corporation organized exclusively to own and manage, or lease, or operate specific
physical assets acquired by a government financial institution in satisfaction of debts incurred
therewith, and which in any case by enunciated policy of the government is required to be
disposed of to private ownership within a specified period of time, shall not be considered a
government-owned or controlled corporation before such disposition and even if the ownership
or control thereof is subsequently transferred to another government-owned or controlled
corporation;
Provided, further, that a corporation created by special law which is explicitly intended under
that law for ultimate transfer to private ownership under certain specified conditions shall be
considered a government-owned or controlled corporation, until it is transferred to private
ownership; and
Provided, finally, that a corporation that is authorized to be established by special law, but which
is still required under that law to register with the Securities and Exchange Commission in order
to acquire a juridical personality, shall not on the basis of the special law alone be considered a
government-owned or controlled corporation. (underscoring supplied)
Under such conceptual framework, UCPB suited the classification of a government-owned and
controlled corporation. UCPB, then known as the First United Bank, was acquired by the
government in 1975 by virtue of P.D. No. 755 and the "Agreement for the Acquisition of a
Commercial Bank for the benefit of the Coconut Farmers" dated May 25, 1975 entered into by
the PCA and Cojuangco using coco levy funds to serve as the repository of the coco levy funds
and to administer said public funds. Under said Agreement, the PCA bought 72.2% of the UCPB
from Cojuangco who retained for himself 7.2% as "payment for management services." On this
score alone, Cojuangco indeed exercised management authority from 1975 to 1980 and from
1981 to 1985.
Given the extent of government ownership of its shares of stock, the public nature of the funds in
its control, the purpose for which it was acquired, and the manner of its acquisition, UCPB was
thus a government-owned and controlled corporation (GOCC). Cojuangco, as then President and
Member of the Board of Directors of UCPB, was thus, indeed, a public officer during the Marcos
Administration.
In light of the admissions as discussed, it was no longer incumbent upon the Republic to prove
that Cojuangco was an officer and member of the governing boards of these bodies at that time.
Cojuangco could, of course, it bears reiteration, have adduced evidence to contradict, on grounds
allowed by the rules, his admissions in order to otherwise show that he was not connected to
these entities during the Marcos regime. But he did not.
It having been established that Cojuangco was a Director of PCA, a government entity, and a
President and Director of UCPB, a GOCC, his act of acquiring loans and credit advances from
UCPB and the CIIF Oil Mills in order to purchase the subject SMC shares through the various
Cojuangco companies was in violation of his fiduciary duty as director.
"Fiduciary duty" has been defined as "a duty to act for someone else’s benefit, while
subordinating one’s personal interests to that of the other person. It is the highest standard of
duty implied by law.118 "Fiduciary" connotes a very broad term embracing both technical
relations and those informal relations which exist wherever one person trusts in or relies upon
another; one founded on trust or confidence reposed by one person in the integrity and fidelity of
another. Such relationship arises whenever confidence is reposed on one side, and domination
and influence result on the other; the relation can be legal, social, domestic, or merely
personal.119 It is a relation subsisting between two persons in regard to a business, contract, or
piece of property, or in regard to the general business or estate of one of them, of such a
character that each must repose trust and confidence in the other and must exercise a
corresponding degree of fairness and good faith. Out of such a relation, the law raises the rule
that neither party may exert influence or pressure upon the other, take selfish advantage of his
trust, or deal with the subject-matter of the trust in such a way as to benefit himself or prejudice
the other except in the exercise of the utmost good faith and with the full knowledge and consent
of that other, business shrewdness, hard bargaining, and astuteness to take advantage of the
forgetfulness or negligence of another being totally prohibited as between persons standing in
such a relation to each other.120
The Court had, in Gokongwei, Jr. v. Securities and Exchange Commission,121 the occasion to
explain at length such fiduciary duty of a director of a corporation:
Although in the strict and technical sense, directors of a private corporation are not regarded as
trustees, there cannot be any doubt that their character is that of a fiduciary insofar as the
corporation and the stockholders as a body are concerned. As agents entrusted with the
management of the corporation for the collective benefit of the stockholders, "they occupy a
fiduciary relation, and in this sense the relation is one of trust." "The ordinary trust relationship
of directors of a corporation and stockholders", according to Ashaman v. Miller, "is not a matter
of statutory or technical law. It springs from the fact that directors have the control and guidance
of corporate affairs and property and hence of the property interests of the stockholders. Equity
recognizes that stockholders are the proprietors of the corporate interests and are ultimately the
only beneficiaries thereof * * *.
Justice Douglas, in Pepper v. Litton, emphatically restated the standard of fiduciary obligation of
the directors of corporations, thus:
A director is a fiduciary. ... Their powers are powers in trust. ... He who is in such fiduciary
position cannot serve himself first and his cestuis second. ... He cannot manipulate the affairs of
his corporation to their detriment and in disregard of the standards of common decency. He
cannot by the intervention of a corporate entity violate the ancient precept against serving two
masters ... He cannot utilize his inside information and strategic position for his own preferment.
He cannot violate rules of fair play by doing indirectly through the corporation what he could not
do so directly. He cannot use his power for his personal advantage and to the detriment of the
stockholders and creditors no matter how absolute in terms that power may be and no matter how
meticulous he is to satisfy technical requirements. For that power is at all times subject to the
equitable limitation that it may not be exercised for the aggrandizement, preference or advantage
of the fiduciary to the exclusion or detriment of the cestuis.
And in Cross v. West Virginia Cent, & P. R. R. Co., it was said:
. . . A person cannot serve two hostile and adverse masters, without detriment to one of them. A
judge cannot be impartial if personally interested in the cause. No more can a director. Human
nature is too weak for this. Take whatever statute provision you please giving power to
stockholders to choose directors, and in none will you find any express prohibition against a
discretion to select directors having the company's interest at heart, and it would simply be going
far to deny by mere implication the existence of such a salutary power.122 (emphasis and
Since at the time Cojuangco and the Cojuangco companies obtained loans from UCPB/CIIF Oil
Mills to purchase SMC shares, Cojuangco was concurrently President and/or Director of the
UCPB and PCA, he is considered to have had a fiduciary duty towards these entities, especially
with respect to UCPB which, at that time, was a GOCC, and the PCA, the government entity
tasked to oversee the entire coconut industry including the coco levy fund.
Furthermore, in view of the public nature of the funds involved, Cojuangco became a fiduciary
not only of the entities involved but also of the public funds. As stated in Gokongwei, a director
cannot serve himself first and his cestuis (the corporations and the public) second or use his
power as such director or officer for his personal advantage or preference. Since the avowed
purpose for which UCPB was acquired by the government was to administer the coco levy funds
to provide them with "readily available credit facilities at preferential rates," Cojuangco, in
buying the SMC shares through the loans he obtained from UCPB and CIIF Oil Mills for his
own benefit, violated his fiduciary obligations by self-dealing, an act proscribed under the
Corporation Code, Sections 31 and 34 of which read:
Sec. 31. Liability of directors, trustees or officers. - Directors or trustees who willfully and
pecuniary interest in conflict with their duty as such directors or trustees shall be liable jointly
When a director, trustee or officer attempts to acquire or acquires, in violation of his duty, any
xxxx
Sec. 34. Disloyalty of a director. - Where a director, by virtue of his office, acquires for himself
a business opportunity which should belong to the corporation, thereby obtaining profits to the
prejudice of such corporation, he must account to the latter for all such profits by refunding the
same, unless his act has been ratified by a vote of the stockholders owning or representing at
least two-thirds (2/3) of the outstanding capital stock. This provision shall be applicable,
notwithstanding the fact that the director risked his own funds in the venture. (emphasis
supplied)
Indeed, given that SMC may be considered a profitable business and, therefore, no prejudice in
terms of loss might have been suffered by UCPB, CIIF Oil Mills or the coconut farmers for
whom Cojuangco was deemed to hold the funds in trust, still his acquisition of the SMC shares
amounted to his depriving the coconut farmers of a business opportunity which rightfully
belonged to them, i.e., access to the coco levy funds, and his gaining profits therefrom to the
detriment of the intended beneficiaries. By no stretch of one’s imagination can it be assumed that
the purchase of SMC shares directly or even indirectly redounded to the benefit of the coconut
farmers. Under Section 9 of P.D. No. 961, what UCPB was, at most, authorized to invest in were
shares of stocks in corporations engaged in businesses related to the coconut and palm oil
industry of which SMC, then primarily engaged in the food and beverage industries, may not be
considered covered. The provision adverted to reads:
Section 9. Investments For the Benefit of the Coconut Farmers. Notwithstanding any law to the
contrary, the bank acquired for the benefit of the coconut farmers under P.D. 755 is hereby given
full power and authority to make investments in the form of shares of stock in corporations
organized for the purpose of engaging in the establishment and the operation of industries and
commercial activities and other allied business undertakings relating to the coconut and other
palm oils industry in all its aspects and the establishment of a research into the commercial and
industrial uses of coconut and other palm oil industry. For that purpose, the Authority shall, from
time to time, ascertain how much of the collections of the Coconut Consumers Stabilization
Fund and/or the Coconut Industry Development Fund is not required to finance the replanting
program and other purposes herein authorized and such ascertained surplus shall be utilized by
the bank for the investments herein authorized.1avvphi1 (emphasis and underscoring supplied)
But even assuming arguendo that UCPB’s investing in SMC shares would have been allowed
under the above provision, still, such investments could only have been made for and in behalf of
the coconut farmers, and NOT for and in behalf of a single individual or Cojuangco alone.
As President and Director of UCPB, Cojuangco was also violating Section 83 of Republic Act
No. 337 of the General Banking Law, as amended by P.D. No. 1795, the law in force at that time
which prohibited directors and/or officers of a banking institution from either directly or
indirectly borrowing any of the deposits of funds of such banks except with the written approval
of all directors of the bank. Said section states:
Sec. 83. No director or officer of any banking institution shall, either directly or indirectly, for
himself or as the representative or agent of other, borrow any of the deposits of funds of such
banks, nor shall he become a guarantor, indorser, or surety for loans from such bank to others, or
in any manner be an obligor for money borrowed from the bank or loaned by it, except with the
written approval of the majority of the directors of the bank, excluding the director concerned.
Any such approval shall be entered upon the records of the corporation and a copy of such entry
shall be transmitted forthwith to the Superintendent of Banks. The office of any director or
officer of a bank who violates the provisions of this section shall immediately become vacant
and the director or officer shall be punished by imprisonment of not less than one year nor more
than ten years and by a fine of not less than one thousand nor more than ten thousand pesos.
The Monetary Board may regulate the amount of credit accommodations that may be extended,
directly or indirectly, by banking institutions to their directors, officers, or stockholders.
However, the outstanding credit accommodations which a bank may extend to each of its
stockholders owning two per cent (2%) or more of the subscribed capital stock, its directors, or
its officers, shall be limited to an amount equivalent to the respective outstanding deposits and
book value of the paid-in capital contribution in the bank: Provided, however, That loans and
advances to officers in the form of fringe benefits granted in accordance with rules and
regulations as may be prescribed by the Monetary Board shall not be subject to the preceding
limitation. 123 (emphasis supplied)
Cojuangco and the Cojuangco companies having admitted in their joint Pre-Trial Brief that the
SMC shares were actually purchased with proceeds from loans and credit advances from UCPB
and the CIIF Oil Mills, and having foregone the opportunity during trial to show that a written
authority from the UCPB’s Board of Directors was secured before contracting said loans,
ineluctably, Cojuangco violated the old banking law. That President Marcos issued Letter of
Instructions (LOI) No. 926 (September 3, 1979) that paved the way for the acquisition of UCPB
as the bank that would administer the lending of coco levy funds and which, in effect, exempted
borrowings from the UCPB from the usual loan restrictions, is of no moment. Section 4 of LOI
No. 926 provides:
Sec. 4. Financial Borrowings – All financial borrowings of the private corporation authorized to
be organized as well as any Participating Mill to finance their respective capital expenditures
including purchase of spare parts and inventories shall be expeditiously and promptly approved,
and such borrowings are hereby declared exempt from restrictions/limitations: on simple
borrower’s limitations; and on loans to corporations with interlocking directors, officers,
stockholders, related interests and subsidiaries and affiliates, it being understood that such
lendings are in effect made to the coconut industry as a whole and not to any particular
individual or entity. (emphasis and underscoring supplied)
Clearly, the exemption granted in LOI No. 926 only extended to corporate borrowings, not to
individual borrowings.
UNDISPUTED FACTS124 culled by the Sandiganbayan, to which Cojuangco and Cojuangco

companies did not object, yield to the following conclusions: (i) It was Cojuangco alone who
obtained the loans; (ii) it was Cojuangco alone who purchased or acquired the subject SMC
shares; and (iii) the subject SMC shares were registered, however, not only in the name of
Cojuangco but also in the name of the Cojuangco companies.
In his Answer, Cojuangco admits that he is the owner of the SMC shares registered in the names
of Primavera Farms, Inc., Silver Leaf Plantations, Inc., and Meadowlark Plantations, Inc.,
wherein 99.6% of the corporations’ shares were held in trust by Atty. Jose C. Concepcion under
three separate "Declarations of Trust and Assignment of Subscription." Likewise admitted
therein is the fact that Atty. Concepcion and other registered stockholders of the three Cojuangco
companies executed Voting Trust Agreements in favor of Cojuangco representing almost half125
of the total subject SMC shares. Another admitted fact is that the other Cojuangco companies
were incorporated in Cojuangco’s behalf by the ACCRA Law Office.126
That the other purportedly registered stockholders of the Cojuangco companies, like Atty.
Concepcion, did not stake a claim over the SMC shares bears noting. That they were not alerted
thereby enfeebles any claim of ownership.127
These circumstances bolster the Sandiganbayan’s judicial notice of case law [Undisputed Facts,
Item No. 5] on the presence of indications that the Cojuangco companies are "dummies" or
manipulated instruments or repositories of wealth.128 And whatever machinations of
incorporation and instrumentalities of declarations were employed, the inescapable conclusion
remains that the subject SMC shares were funneled into the Cojuangco companies. Hence, per
case law and as confirmed by the admissions and the records of the proceedings, the Cojuangco
companies are ‘dummies’ or manipulated instruments.
Since Cojuangco admitted having acquired the loans for himself, albeit through various dummy
corporations, and absent written authority from UCPB’s then Board of Directors, it becomes
evident that he violated the restrictions on bank exposure under the old banking law. The
issuance of the LOI by then President Marcos, rather than exempting from the restrictions
imposed on loans being acquired by officers and directors of banks, only underscored the
obvious: that Cojuangco was a close ally of Marcos and gained undue advantage due to such
close relationship; and that UCPB was primarily acquired to siphon off the coco levy funds.
Significantly, as the above-quoted Section 4 of LOI No. 926 itself provides, the borrowings or
loans were intended "in effect" for the benefit of the coconut industry and the coconut farmers as
a whole and NOT for the benefit of any particular individual or entity.
IN SUM, in acquiring the loans for himself while he was an officer of UCPB, Cojuangco
VIOLATED not only HIS FIDUCIARY OBLIGATION under the Corporation Code and the
PROHIBITION ON SELF-DEALING under the banking law, but also the PROVISION IN THE
LOI ON HOW THE LOANS ARE TO BE ADMINISTERED. The avowed legal intention or
policy behind the LOI in fact goes against factual reality, as even the financial borrowings were
supposedly intended "to finance their [Participating Mills’] capital expenditures."
It having been established that Cojuangco engaged in prohibited conflict-of-interest transactions

by buying the SMC shares using coco levy funds being administered by the UCPB and CIIF Oil
Mills for his own benefit, it follows that a constructive trust was formed in favor of the coconut
farmers who should have benefited from such funds.
The Civil Code provides:

Art. 1455. When any trustee, guardian, or other person holding a fiduciary relationship uses trust
funds for the purchase of property and causes the conveyance to be made to him or to a third
person, a trust is established by operation of law in favor of the person to whom the funds
belong. (emphasis and underscoring supplied)
A constructive trust is "a right of property, real or personal, held by one party for the benefit of
another; that there is a fiduciary relation between a trustee and a cestui que trust as regards
certain property, real, personal, money or choses in action."129 That under Article 1455 there
must be a breach of fiduciary relation and profit or gain resulting therefrom in order for a
constructive trust to be created in favor of that legally entitled to it, Huang v. Court of Appeals130
underscores:
A constructive trust is imposed where a person holding title to property is subject to an equitable
duty to convey it to another on the ground that he would be unjustly enriched if he were
permitted to retain it. The duty to convey the property arises because it was acquired through
fraud, duress, or abuse of confidence, undue influence or mistake or breach of fiduciary duty or
through the wrongful disposition of another’s property.131 (emphasis supplied)
Fraud in this kind of trust in fact need not even be present. The landmark case of Severino v.
Severino132 enlightens:
A receiver, trustee, attorney, agent, or any other person occupying fiduciary relations respecting
property or persons, is utterly disabled from acquiring for his own benefit the property
committed to his custody for management. This rule is entirely independent of the fact whether
any fraud has intervened. No fraud in fact need be shown, and no excuse will be heard from the
trustee. It is to avoid the necessity of any such inquiry that the rule takes so general a form. The
rule stands on the moral obligation to refrain from placing one's self in positions which ordinarily
excite conflicts between self-interest and integrity. It seeks to remove the temptation that might
arise out of such a relation to serve one's self-interest at the expense of one's integrity and duty to
another, by making it impossible to profit by yielding to temptation. It applies universally to all
who come within its principle. (emphasis and underscoring supplied)
In the present case, whether Cojuangco committed fraud is no longer material, what is material
and must be established being the existence of the fiduciary relation and the use of such position
and the attendant abuse of the confidence reposed in him by virtue of that position which results
in the constructive trust.
Even assuming arguendo that fraud is material, the rule on the burden of proof of fraud, as the
majority insists, does not apply in the present case. Authorities on evidence cite the existence of
a fiduciary relation as an exception:
The law, in the absence of the existence of any fiduciary relation, never presumes fraud,
dishonesty, or bad faith; on the contrary, the presumption is in favor of good faith and honesty
until the contrary appears x x x However, when a fiduciary relation exists between the parties
to a transaction, the burden of proof of its fairness is upon the fiduciary. He must show that
there was no abuse of confidence, that he has acted in good faith, and the act by which he is
benefited was the free, voluntary, and independent act of the other party, done with full
knowledge of its purpose and effect. Examples of such relationships may be seen in the case of
husband and wife, attorney and client, directors of a corporation and the corporation, or any other
relationship of an intimate and fiduciary character. A fiduciary seeking to profit by a transaction
with the one who confided in him has the burden of showing that he communicated to the other
not only the fact of his interest in the transaction, but all information he had which it was
important for the other to know in order to enable him to judge the value of the property. The
formal creation of a fiduciary relationship is not essential to the application of this rule. The
principles apply to all cases in which confidence is reposed by one party in another, and the trust
or confidence is accepted under circumstances which show that it was founded on intimate,
personal, and business relations existing between the parties, which give the one advantage or
superiority over the other, and impose the burden of proving that the transaction was fair and just
on the person acquiring the benefit.133 (emphasis and underscoring supplied)
Since Cojuangco was a fiduciary, the burden of evidence on the fairness of the questionable
transactions was shifted to him. He failed to discharge this burden.
In other words, contrary to the view of the majority, it was not incumbent upon the Republic to
adduce evidence on the particular details of the loans and credit advances for it was Cojuangco’s
burden to establish the regularity of these transactions. I am not "second-guessing," as the
majority points out, for I am justified to deem the irregularity or illegality thereof as established
after Cojuangco refused to discharge his burden. The intentional concealment of facts as to
render secretive the assailed loan transactions entered into by a fiduciary must be, as enunciated
by the above-cited rule, taken against Cojuangco, he being the fiduciary.
VIOLATION OF PENAL LAWS
Aside from the violating the above-enumerated laws in purchasing the SMC shares, Cojuangco
also violated penal laws in his capacity as a public officer.134
First, Section 3(i) of Republic Act No. 3019 prohibits a public officer from becoming
interested for personal gain, or having a material interest in any transaction or act
requiring the approval of a board, panel or group of which he is a member, and which
exercises discretion in such approval, even if he votes against the same or does not
participate in the action of the board, committee, panel or group.
Second, Article 216135 of the Revised Penal Code prohibits public officers from directly
or indirectly, becoming interested in any contract or business in which it is his official
duty to intervene.
Cojuangco’s participation in the performance of public functions in a branch of the government

was through his appointment by then President Marcos to the identified positions. Clearly,
whether by the definition under R.A. 3019 or the Revised Penal Code, Cojuangco is deemed to
be a public officer.
Cojuangco, in buying the SMC shares out of loan proceeds he obtained from UCPB and CIIF Oil
Mills, of which he was an officer, violated the cited provision of the Graft and Corrupt Practices
Act, akin to the act of self-dealing that is prohibited under Sections 31 and 34 of the Corporation
Code. Further, under the last paragraph of Section 3(i), there is the presumption of interest for
personal gain.136 Consequently, Cojuangco ought to have proven that he did not gain personally
from the loan transactions which involved UCPB, a GOCC, and the PCA, a government body.
With respect to Article 216 of the Revised Penal Code, Cojuangco had a hand in how the funds
were to be utilized and in choosing the recipients of the loans and credit advances. For him to
purchase SMC shares with proceeds from loans sourced from the coconut levy funds was a clear
violation of Article 216. What is proscribed is the mere possession of the prohibited interest. It
does not matter whether he actually approved the transaction or actually intervened in the
contract or business. Moreover, proof that actual fraud was committed against the government is
not required, for the act is punished because of the possibility that fraud may be committed or
that the officer may place his personal interest above that of the government.137
The foregoing determinations notwithstanding, the majority posits that the Republic still needed
to adduce competent evidence to substantiate the elemental allegations of the complaint. It
declares that Cojuangco, et al. "did not admit that the acquisition of the Cojuangco block of
SMC shares had been illegal, or made with public funds." The phraseology, however, is
inaccurate in two respects. First, the statement is tagged with an erroneous predicate, for the
premise draws one to interject that Cojuangco, et al. could not admit a conclusion of law.
Second, the statement fails to squarely consider all relevant facts that need not be proven by
evidence which the Court determined in arriving at its legal conclusion.
The categories of facts that need not be proven by evidence were enumerated by this Court in
one case that expounded on Section 1 of Rule 131 of the Rules of Court, as follows:
Burden of proof. – Burden of proof is the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of evidence required by law.
Obviously, the burden of proof is, in the first instance, with the plaintiff who initiated the action.
But in the final analysis, the party upon whom the ultimate burden lies is to be determined
by the pleadings, not by who is the plaintiff or the defendant. The test for determining where
the burden of proof lies is to ask which party to an action or suit will fail if he offers no evidence
competent to show the facts averred as the basis for the relief he seeks to obtain, and based on
the result of an inquiry, which party would be successful if he offers no evidence.
In ordinary civil cases, the plaintiff has the burden of proving the material allegations of the
complaint which are denied by the defendant, and the defendant has the burden of proving
the material allegations in his case where he sets up a new matter. All facts in issue and
relevant facts must, as a general rule, be proven by evidence except the following:
(1) Allegations contained in the complaint or answer immaterial to the issues.

(2) Facts which are admitted or which are not denied in the answer, provided they have
been sufficiently alleged.
(3) Those which are the subject of an agreed statement of facts between the parties; as
well as those admitted by the party in the course of the proceedings in the same case.
(4) Facts which are the subject of judicial notice.
(5) Facts which are legally presumed.
(6) Facts peculiarly within the knowledge of the opposite party.
The effect of a presumption upon the burden of proof is to create the need of presenting evidence
to overcome the prima facie case created thereby which if no proof to the contrary is offered will
prevail; it does not shift the burden of proof.138 (italics in the original; underscoring supplied)
BY WAY OF SUMMATION, the following relevant facts/circumstances that need not be

proven by evidence, as gathered from the foregoing discussion which is anchored on the
immediately-cited listing of legal bases for considering these facts as established, rebut the
argument that there is no evidence at all to support the Republic’s cause of action.
1. The identity of the subject SMC shares, referring to a total of 27,198,545 shares of
stocks (at the time of sequestration in 1989) representing approximately 20% of the
outstanding shares.
2. The sale of the subject SMC shares was entered into in 1983.
3. The sellers were Ayala Corporation and other corporations and individuals.
4. The lone buyer was Eduardo Cojuangco, Jr.
5. In purchasing the SMC shares, Cojuangco used proceeds of loans
6. It was Cojuangco alone who obtained the loans.
7. The proceeds of loans refer to borrowings from CIIF Oil Mills and UCPB.
8. No private funds were shown to have been used to purchase the SMC shares.
9. The coconut levy funds are not only clearly affected with public interest but also, in
fact, prima facie public funds. The same holds true with corporations formed and
organized from coconut levy funds and all assets acquired therefrom, they being fruits of
funds with public roots.
10. Absent any contrary evidence, the subject SMC shares remained public in character.
11. Circumstances indicate that the Cojuangco companies are ‘dummies’ or manipulated
instruments.
12. The SMC shares have been registered not only in Cojuangco’s name but also in the
name of defendant Cojuangco Companies.
13. Cojuangco is the owner of the SMC shares registered in the names of Primavera
Farms, Inc., Silver Leaf Plantations, Inc., and Meadowlark Plantations, Inc., wherein
99.6% of the corporations’ shares were held in trust by Atty. Jose C. Concepcion under
three separate "Declarations of Trust and Assignment of Subscription."
14. Atty. Jose Concepcion of ACCRA Law Office and other registered stockholders of
the three Cojuangco companies executed Voting Trust Agreements in favor of
Cojuangco, representing almost half139 of the total subject SMC shares.
15. The other Cojuangco companies, aside from the three earlier named, were
incorporated in Cojuangco’s behalf by the ACCRA Law Office.140
16. The other purportedly registered stockholders of the Cojuangco companies did not
stake a claim over the SMC shares.
17. On February 25, 1986, Cojuangco left the Philippines in the company of former
President Ferdinand Marcos.
18. The PCGG Rules and Regulations define "ill-gotten wealth" as any asset, property,
business enterprise or material possession of persons within the purview of Executive
Orders Nos. 1 and 2, acquired by them directly, or indirectly thru dummies, nominees,
agents, subordinates and/or business associates by any of the [various enumerated]
means141 or similar schemes.
19. The year 1983 forms part of the period of the Marcos administration.
20. Cojuangco was President and Member of the Board of Directors of the UCPB, and
Director of the Philippine Coconut Authority (PCA), inter alia, during the Marcos
administration.
21. UCPB was a public corporation in 1983.142
22. The PCA Board of Directors had been expressly given vast authority in managing and
disbursing the coconut levy funds including the corporations formed and organized
therefrom and all assets acquired therefrom, such as all CIIF Oil Mills.
23. Case law provides that a director occupies a fiduciary relation as he cannot serve
himself first and his cestuis second. He cannot use his power for his personal advantage
and to the detriment of the stockholders and creditors.143
24. Sections 31 and 34 of the Corporation Code prohibit acts of "self-dealing."
25. Section 9 of Presidential Decree No. 961 limits the authority to make UCPB
investments only in the establishment and operation of industries and commercial
activities and other allied business undertakings relating to the coconut and other palm
oils industry in all its aspects and the establishment of research into the commercial and
industrial uses of coconut and other palm oil industry.
26. Section 83 of the then General Banking Law provides the general rule that prohibits
directors and officers of a banking institution from directly or indirectly borrowing any of
the deposits of funds of such banks.
27. The exemption granted under Letter of Instructions No. 926 states that loans sourced
from the coconut levy funds are extended only to corporate borrowings, not to individual
borrowings.
28. The rule on constructive trust under Article 1455 of the Civil Code prohibits a trustee
from acquiring for his own benefit the property under his management. Case law
provides that fraud need not be shown.144
29. No evidence was shown to discharge the burden of Cojuangco, as a fiduciary, to

demonstrate that the loan transactions were regularly entered into.
30. Section 3(i) of Republic Act No. 3019 prohibits a public officer from becoming
interested for personal gain, or having a material interest in any transaction or act
requiring the approval of a board, panel or group of which he is a member, and which
exercises discretion in such approval, even if he votes against the same or does not
participate in the action of the board, committee, panel or group.
31. Article 216145 of the Revised Penal Code prohibits public officers from directly or
indirectly, becoming interested in any contract or business in which it is his official duty
to intervene.
IN SUM, since at the time of the purchase of the subject SMC shares, Cojuangco, a trusted close
associate of Former President Marcos, was a director and corporate officer of the PCA and
UCPB, hence, he was considered a fiduciary of the coconut levy funds, its derivatives and assets,
which are public in character being administered by said entities. His use for his personal benefit
of the very same funds entrusted to him, which was released to him through illegal and improper
machination of loan transactions, and his contravention of the then existing corporation laws and
laws restricting a bank’s exposure to its director or officers indicate a clear violation of such
fiduciary duty. These shares which respondents acquired using the proceeds from such loans do
not thus pertain to them but to the UCPB and the CIIF Oil Mills pursuant to a constructive trust,
and following Section 31 of the Corporation Code, said shares should be reconveyed to the
Republic in trust for the coconut farmers.
WHEREFORE, in light of all the foregoing, I DISSENT from the majority opinion as I
PROFFER the following dispositions:
The Sandiganbayan’s assailed Resolutions of October 8, 2003 and June 24, 2005 in G.R. No.
169203 are AFFIRMED WITH MODIFICATION in that all the restrictions imposed in the
dispositive portion thereof are DELETED; the Resolution of December 10, 2004 in G.R. No.
166859 is AFFIRMED; and the Decision of November 28, 2007 in G.R. No. 180702 is
REVERSED and SET ASIDE.
The Cojuangco et al. Block of San Miguel Corporation shares of stock totalling 27,198,545 as of
the date of sequestration thereof, together with all dividends declared, paid and issued thereon, as
well as any increments thereto and rights arising therefrom, are DECLARED owned by the
Government in trust for all the coconut farmers and ORDERED RECONVEYED to the
Government. For the purpose of determining the total current valuation of these shares, the
dividends accruing therefrom and increments thereto,146 the case is REMANDED to the
Sandiganbayan which is ordered to carry out the same with dispatch.

Associate Justice
Footnotes
1
Defendants-lawyers from ACCRA law firm were excluded from the case per Regala v.
Sandiganbayan, 330 Phil. 678 (1996).
Per Resolution of January 28, 2008, rollo (G.R. No. 180702), Vol. III, pp. 1216-
1217. The Court en banc, by Resolution of February 5, 2008, accepted the
transfer and consolidation.
2
Vide rollo (G.R. No. 169203), p. 46. The eight cases are:
Case
Subject Matter
No.
Civil Anomalous Purchase and Use
Case of First United Bank (now
No. UCPB)
0033-A
Civil Creation of Companies out of
Case Coco Levy Funds
No.
0033-B
Civil Creation and Operation of
Case Bugsuk Project and Award of
No. P998M Damages to
0033-C Agricultural Investors, Inc.
Civil Disadvantageous Purchases
Case and Settlement of the
No. Accounts of Oil Mills out of
0033-D the Coco Levy Funds
Civil Unlawful Disbursement and
Case Dissipation of Coco Levy
No. Funds
0033-E
Civil Acquisition of San Miguel
Case Corporation
No.
0033-F
Civil Acquisition of Pepsi Cola
Case
No.
0033-G
Civil Behest Loans and Contracts.
Case
No.
0033-H
3
Referring to the defendants Soriano Shares, Inc., Roxas Shares, Inc., Arc Investors, Inc.,
Fernandez Holdings, Inc., Toda Holdings, Inc., ASC Investors, Inc., Randy Allied
Ventures, Inc., AP Holdings, Inc., SMC Officers Corps, Inc., Te Deum Resources, Inc.,
Anglo Ventures, Inc., Rock Steel Resources, Inc., Valhalla Properties, Ltd., Inc., and
First Meridian Development, Inc.
4
At the time of sequestration, infra note 61.
5
Rollo (G.R. No. 166859), p. 66.
6
Id. at 64-92.
7
Republic v. Sandiganbayan (First Division), 310 Phil. 401 (1995); vide Resolution of
August 6, 1996.
8
Vide rollo (G.R. No. 169203), pp. 306-316. The nine writs of sequestration are
summarized as follows:
Writ Property Covered Date Issued By
No. Issued
Shares of stock in San
Miguel Corporation
registered in the names
of:
a. Meadow Lark
Plantations, Inc.
b. Silver Leaf
Plantations, Inc.
c. Primavera
Farms, Inc.
d. Pastoral Farms,
Inc.
e. Black Stallion
Ranch, Inc.
f. Misty Mountains
Agricultural Corp.
g. Archipelago
Realty Corp. Commissioner
1. 86- h. Agricultural April 8, Mary
0042 Consultancy 1986 Concepcion
Services, Inc. Bautista
i. Southern Star
Cattle Corp.
j. LHL Cattle
Corp.
k. Rancho Grande,
Inc.
l. Dream Pastures,
Inc.
m. Far East Ranch,
Inc.
n. Echo Ranch,
Inc.
o. Land Air
International
Marketing Corp.
p. Reddee
Developers, Inc.
q. PCY Oil
Manufacturing
Corp.
r. Lucena Oil
Factory, Inc.
s. Metroplex
Commodities,
Inc.
t. Vesta
Agricultural
Corp.
u. Verdant
Plantations, Inc.
v. Kaunlaran
Agricultural
Corp.
Insofar as it refers to
shares of stock in San
Miguel Corporation
Registered in the names
of:
Commissioner
2. 86- a. ECJ & Sons April 21,
Ramon A.
0062 Agricultural 1986
Diaz
Enterprises, Inc.
b. Radyo Pilipino Corp.
c. Metroplex
Commodities, Inc.
Shares of stock in San April 22, Commissioner
Miguel Corporation 1986 Ramon A.
registered in the names Diaz
of:
a. Discovery
Realty
Corporation
3. 86-
b. First United
0069
Transport, Inc.
c. Radyo Pilipino
Corporation
d. Radio Audience
Developers
Integrated
Organization,
Inc.
e. Archipelago
Finance and
Leasing Corp.
f. San Esteban
Development
Corp.
g. Christensen
Plantation Co.
h. Northern
Carriers Corp.
4. 86- Insofar as it refers to May 9, Commissioner

0085 San Miguel Corporation 1986 Ramon A.
shares registered in the Diaz
name of Venture
Securities, Inc.
5. 86- Shares of stock in San May 16, Commissioner
0095 Miguel Corporation 1986 Ramon A.
registered in the name Diaz
of Balete Ranch, Inc.
of Oro Verde Services,
Inc.
of Eduardo M.
Cojuangco, Jr.
of Kalawakan Resorts,
Inc.
9. 87- Insofar as it refers to May 27, Commissioners
0218 shares of stock in San 1987 Ramon E.
Miguel Corporation Rodrigo and
registered in the name Quintin S.
of Balete Ranch, Inc. Doromal
9
Rollo (G.R. No. 166859), pp. 93-112, 113-127.
10
Id. at 128-143.
11
Juan Ponce Enrile, Danilo Ursua, and the 14 Holding Companies and the CIIF
Companies/Oil Mills (Southern Luzon Coconut Oil Mills, Cagayan de Oro Oil Co., Inc,
Iligan Coconut Industries, Inc., San Pablo Manufacturing Corp., Granexport
Manufacturing Corp., and Legaspi Oil Co., Inc.).
12
Rollo (G.R. No. 169203), pp. 320-323.
13
Also referred to as "CIIF Oil Mills."
14
Rollo (G.R. No. 169203), pp. 1030-1093; the dispositive portion of which, as modified,
reads:
WHEREFORE , in view of the foregoing, we hold that:
The Motion for Partial Summary Judgment (Re: Defendants CIIF Companies, 14
Holding Companies and Cocofed, et al.) filed by Plaintiff is hereby GRANTED.
ACCORDINGLY, THE CIIF COMPANIES, NAMELY:
1. Southern Luzon Coconut Oil Mills (Solcom);
5. Granexport Manufacturing Corp. (GRANEX); and
6. Legaspi Oil Co., Inc. (LEGOIL)
2. ASC Investors, Inc.;
6. AP Holdings, Inc.;

8. SMC Officers Corps, Inc.;
13. Valhalla Properties, Ltd., Inc.; and
AND THE CIIF BLOCK OF SAN MIGUEL CORPORATION (SMC) SHARES

OF STOCK TOTALLING 33,133, 266 SHARES AS OF 1983 TOGETHER
WITH ALL DIVIDENDS DECLARED, PAID AND ISSUED THEREON AS
WELL AS ANY INCREMENTS THERETO ARISING FROM, BUT NOT
LIMITED TO, EXERCISE OF PRE-EMPTIVE RIGHTS ARE DECLARED
OWNED BY THE GOVERNMENT IN TRUST FOR ALL THE COCONUT
FARMERS AND ORDERED RECONVEYED TO THE GOVERNMENT.
The aforementioned Partial Summary Judgment is now deemed a separate

appealable judgment which finally disposes of the ownership of the CIIF Block of
SMC Shares, without prejudice to the continuation of proceedings with respect to
the remaining claims particularly those pertaining to the Cojuangco, et al. block of
SMC shares.
SO ORDERED.
15
Rollo (G.R. No. 166859), pp. 144-186.
16
The Resolution, albeit dated September 17, 2003, was promulgated on October 8, 2003
by the Sandiganbayan, the First Division of which was composed of Justices Teresita
Leonardo-De Castro, Diosdado Peralta (ponente), Gregory Ong, Godofredo Legaspi, and
Francisco Villaruz, Jr. [rollo (G.R. No. 169203), pp. 40-55].
17
Rollo (G.R. No. 169203), p. 54. Ordered to be annotated are the following conditions:
(1) any sale, pledge, mortgage or other disposition of any of the shares of the
Defendants Eduardo Cojuangco, et al. shall be subject to the outcome of this case;
(2) the Republic through the PCGG shall be given twenty (20) days written notice
other disposition of the shares;
(3) in the event of sale, mortgage or other disposition of the shares, by the
Defendants Eduardo Cojuangco, et al., the consideration therefor, whether in cash
or in kind, shall be placed in escrow with Land Bank of the Philippines, subject to
disposition only upon further orders of this Court; and
(4) any cash dividends that are declared on the shares shall be placed in escrow
with the Land Bank of the Philippines, subject to disposition only upon further
orders of this Court. If in case stock dividends are declared, the conditions on the
sale, pledge, mortgage and other disposition of any of the shares as above-
mentioned in conditions 1, 2, and 3, shall likewise apply.
18
Id. at 74-82.
19
Id. at 11.
20
The Sandiganbayan resolved: "This notwithstanding however, while the Court exempts
the sale from the express condition that it shall be subject to the outcome of the case,
defendants Cojuangco, et al. may well be reminded that despite the deletion of the said
condition, they cannot transfer to any buyer any interest higher than what they have. No
one can transfer a right to another greater than what he himself has. Hence, in the event
that the Republic prevails in the instant case, defendants Cojuangco, et al. hold
themselves liable to their tranferees-buyers, especially if they are buyers in good faith and
for value. In such eventuality, defendants Cojuangco et al. cannot be shielded by the
cloak of principle of caveat emptor because "case law has it that this rule only requires
the purchaser to exercise such care and attention as is usually exercised by ordinarily
prudent man in like business affairs, and only applies to defects which are open and
patent to the service of one exercising such care." [Sandiganbayan Decision of November
28, 2007, p. 34, citing Records, Vol. 18, pp. 181-195].
21
In the amount of "four billion, three hundred eighty six million, one hundred seven
thousand, four hundred twenty-eight pesos and thirty four centavos
(Php4,786,107,428.34)"(sic) [Sandiganbayan Decision of November 28, 2007, p. 35,
citing Manifestation filed on August 7, 2007 (Records, Vol. 19)].
22
Rollo (G.R. No. 166859), pp. 20-21.
23
Rollo (G.R. No. 180702), Vol. III, pp. 883-884.
24
Id. at 885-1059.
25
Id. at 1127-1214.
26
Penned by Justice Diosdado M. Peralta, with Justices Teresita Leonardo-De Castro and
Efren N. De la Cruz, concurring.
27
Rollo (G.R. No. 180702), Vol. I, p. 130.
28
Rollo (G.R. No. 180702), Vol. II, pp. 421-422.
29
Rollo (G.R. No. 180702), Vol. 1, pp. 18-62. Petitioner-intervenors also repleaded and
adopted in G.R. No. 169203 the allegations in their petition in G.R. No. 180702. [rollo
(G.R. No. 169203), pp. 449-460].
30
Rollo (G.R. No. 180702), Vol. V, unpaginated.
31
Rollo (G.R. No. 180702), Vol. I, p. 34.
32
G.R. No. 119292, July 31, 1998, 293 SCRA 440.
33
Republic v. Sandiganbayan, id. at 454-456.
34
Writ No. 87-0218, it may be recalled, was actually signed by two PCGG
commissioners, while Writ No. 86-0042 was issued before the subject rules took effect;
vide YKR Corporation v. Sandiganbayan, G.R. No. 162079, March 18, 2010, and
Republic of the Philippines v. Sandiganbayan, 336 Phil. 304, 318-319 (1997) on the non-
retroactivity of the PCGG rules.
35
Republic v. Sandiganbayan, G.R. No. 135789, January 31, 2002, 375 SCRA 425, 429.
36
Vide Presidential Commission on Good Government v. Tan, G.R. Nos. 173553-56,
December 7, 2007, 539 SCRA 464, wherein the Court examined and evaluated the order
of sequestration and the minutes of the meeting.
37
Republic v. Sandiganbayan, G.R. No. 88126, July 12, 1996, 258 SCRA 685.
38
Rollo (G.R. No. 169203), p. 50.
39
Presidential Commission on Good Government v. Tan, supra note 36 at 483-484.
40
Republic v. Sandiganbayan, supra note 7 at 494-495:
VIII. Indications that Some Corporations Are In Fact Mere "Dummies"
To be sure, the records of these cases abound with indications, mostly in the form
of admissions, that several of the corporations listed in the complaint against
Eduardo J. Cojuangco, Jr. are "dummies" or manipulated instruments, or
repositories of wealth deceitfully amassed at the expense of the People, or simply
the fruits thereof.
A. Dummy Owners of San Miguel Corporation (SMC) Stock
For instance three (3) corporations, namely: (1) Meadow-Lark Plantations, Inc.,
(2) Primavera Farms, Inc., and (3) Silver-Leaf Plantations, Inc., appear in the
books of San Miguel Corporation (SMC) as owners of 8,138,440 shares of the
latter's stock. And a certain Jose C. Concepcion also appears in its books as owner
of "San Miguel Corporation Stock Certificate No. A962930 for 5,000 shares."
All the outstanding capital stock (100%) of these three (3) companies is owned by
five (5) persons, all lawyers, namely: (1) the aforenamed Jose C. Concepcion, (2)
Victoria C. de los Reyes, (3) Florentino M. Herrera III, (4) Teresita J. Herbosa,
and (5) Jose Riodil Montebon. Concepcion, Herbosa and Montebon are members
of one law firm; Herrera and de los Reyes are members of another.
All these (5) are shown to be signatories of three (3) identically worded voting
trust agreements executed on April 13, 1984 giving to Eduardo M. Cojuangco, Jr.
the right to vote for a period of five (5) years, the shares of stock of the three (3)
corporations above mentioned — of the entire capital stock of which they are, as
aforestated, the ostensible owners.
Moreover, there are on record more or less identically worded affidavits of Jose
C. Concepcion, Teresita J. Herbosa and Jose R.D. Montebon frankly confessing
that the shares of stock listed under their names in the corporate books of the three
(3) corporations above mentioned — and several other firms shortly to be named
— were merely assigned to them as "nominee stockholders," but in truth they do
"not have any proprietary interest in any of . . . (said) shares of stock."
Concepcion's affidavit contains the additional declaration of his being "nominee

stockholder" of "San Miguel Corporation Stock Certificate No. A962930 for
5,000 shares and all stock dividends declared thereon," supra, although in truth he
does "not have any proprietary interest" therein.
It thus appears that by their own unequivocal admissions, not one of the
aforementioned five attorneys is the owner of the stock under their names in the
three (3) corporations above mentioned, which in turn own not inconsiderable
stock in San Miguel Corporation.
Jose C. Concepcion appears further more to have executed in blank three (3)
documents entitled "DECLARATION OF TRUST AND ASSIGNMENT OF
SUBSCRIPTION," all dated April 13, 1984, in each of which he (a) declares that
all shares of stock registered in his name in the three corporations above named
(Meadow-Lark Plantations, Inc., Primavera Farms, Inc., and Siver-Leaf
Plantations, Inc.) were assigned to him "only as nominee and only for the benefit
and in trust for" an assignee whom he does not name, and (b) binds himself "to
assign, transfer and convey all his rights, title and interest in the aforesaid shares
of stock in favor of the (unnamed) ASSIGNEE or his nominees or assigns at
anytime upon the request of the ASSIGNEE."
41
Republic v. Sandiganbayan, supra note 7.
42
The Sandiganbayan, by Resolution of April 8, 1992, granted corporate respondents’
motion to withdraw the ground of lack of prima facie showing. [vide private respondents’
Comment (in G.R. No. 180702) of May 7, 2008 on its Annex "G", pp. 4-6].
43
Rules of Court, Rule 15, Sec. 8.
44
Supra note 37.
45
Id. at 697-698.
46
Vide Soriano III v. Yuson, No. L-74910, August 10, 1988, 164 SCRA 226 where the
Court ruled that the Sandiganbayan’s exclusive jurisdiction evidently extends not only to
the principal causes of action, i.e., the recovery of ill-gotten wealth, but also to all
incidents arising from, incidental to, or related to, such cases, such as the dispute over the
sale of the shares, the propriety of the issuance of ancillary writs or provisional remedies
relative thereto, and the sequestration thereof.
47
Republic v. Sandiganbayan, G.R. No. 88228, June 27, 1990, 186 SCRA 864 where the
Sandiganbayan, upon motion, placed the cash dividends of a sequestered corporation in
custodia legis instead of allowing them to remain in the name and under the control of
one of the litigants.
48
Gochan v. Young, 406 Phil 663, 679 (2001).
49
Chemphil Export and Import v. CA, 321 Phil. 619, 645 (1995).
50
Supra note 32 at 468 citing Republic v. Sandiganbayan, supra note 47 at 872-873.
51
Vide Universal Staffing Services, Inc. v. National Labor Relations Commission, G.R.
No. 177576, July 21, 2008, 559 SCRA 221, 231-232: It is a well-settled procedural rule
in this jurisdiction, and we see no reason why it should not apply in this case, that an
appellee who has not himself appealed cannot obtain from the appellate court any
affirmative relief other than those granted in the decision of the court below. The appellee
can only advance any argument that he may deem necessary to defeat the appellant’s
claim or to uphold the decision that is being disputed. He can assign errors on appeal if
such is required to strengthen the views expressed by the court a quo. Such assigned
errors, in turn, may be considered by the appellate court solely to maintain the appealed
decision on other grounds, but not for the purpose of modifying the judgment in the
appellee’s favor and giving him other affirmative reliefs. (underscoring supplied)
52
404 Phil. 961, 979 (2001).
53
Vide Presidential Commission on Good Government v. Sandiganbayan, 418 Phil. 8, 20
(2001); Republic of the Phils v. Sandiganbayan, 355 Phil. 181, 206-207 (1998).
54
Cucueco v. Court of Appeals, G.R. No. 139278, October 25, 2004, 441 SCRA 290,
298.
55
Vide id. at 299.
56
Rivera v. United Laboratories, Inc., G.R. No. 155639, April 22, 2009, 586 SCRA 269,
288.
57
Vide Cucueco v. Court of Appeals, supra note 54 at 300.
58
Vide Technol Eight Philippines Corp. v. National Labor Relations Commission, G.R.
No. 187605, April 13, 2010, 618 SCRA 248.
59
Latin phase which means "with all other factors or things remaining the same."
<http://www.thefreedictionary.com/>
60
The Sandiganbayan enumerates these corporations as follows:
(1) Agricultural Consultancy Services, Inc.
(2) Archipelago Realty Corp.,
(3) Balete Ranch, Inc.,
(4) Black Stallion Ranch, Inc.,
(5) Christensen Plantation Company,
(6) Discovery Realty Corp.,
(7) Dream Pastures, Inc.,
(8) Echo Ranch, Inc.,
(9) Far East Ranch, Inc.
(10) Filsov Shipping Company, Inc.,
(11) First United Transport, Inc.,
(12) Habagat Realty Development, Inc.,
(13) Kalawakan Resorts, Inc.,
(14) Kaunlaran Agircultural Corp.,

(15) Labayug Air Terminals, Inc.,
(16) Landair International Marketing Corp.,
(17) LHL Cattle Corporation,
(18) Lucena Oil Factory, Inc.,
(19) Meadow Lark Plantations, Inc.,
(20) Metroplex Commodities, Inc.,
(21) Misty Mountain Agircultural Corp.,
(22) Northeast Contract Traders, Inc.,
(23) Northern Carriers Corporation,
(24) Oceanside Maritime Enterprises, Inc.
(25) Oro Verde Services, Inc.,
(26) Pastoral Farms, Inc.,
(27) PCY Oil Manufacturing Corp.,
(28) Philippine Technologies, Inc.,
(29) Primavera Farms, Inc.,
(30) Punong-Bayan Housing Development Corp.,
(31) Pura Electric Company Inc.,
(32) Radio Audience Developers Integrate Organization, Inc.
(33) Radyo Pilipino Corporation,
(34) Rancho Grande, Inc.,
(35) Reddee Developers, Inc.,
(36) San Esteban Development Corp.,
(37) Silver Leaf Plantations, Inc.,

(38) Southern Service Traders, Inc.,
(39) Southern Star Cattle Corp.,
(40) Spade One Resorts Corp.,
(41) Unexplored Land Developers, Inc.,
(42) Verdant Plantations, Inc.,
(43) Vesta Agricultural Corp. and
(44) Wings Resorts Corporation

61
The Sandiganbayan found that these shares were distributed among the defendant
corporations as follows:
STOCKHOLDERS (ORIGINAL) (PRESENT*)

NO. OF NO. OF
SHARES SHARES
Primavera Farms, Inc. 5,381,643 21,626,164
Black Stallion Ranch, Inc. 3,587,695 14,360,772
Misty Mountains Agri’l Corp. 3,587,695 14,360,772
Pastoral Farms, Inc. 3,587,695 14,350,772
Meadow Lark Plantation, Inc. 2,690,771 10,763,080
Silver Leaf Plantation, Inc. 2,690,771 10,763,080
Lucena Oil Factory, Inc. 169,174 676,696
PCY Oil Manufacturing Corp. 167,887 671,464
Metroplex Commodities, Inc. 167,777 671,104
Kaunlaran Agricultural Corp. 145,475 581,800
Redee Developers, Inc. 169,071 676,280
Agrl’l Consultancy Serv., Inc. 167,907 671,624
First United Transport, Inc. 168,963 675,848
Verdant Plantations, Inc. 145,475 581,900
Christensen Plantation Co. 169,920 675,680
Northern Carriers Corp. 167,891 671,560
Vesta Agricultural Corp. 145,475 581,900
Ocean Side Maritime Ent. Inc. 132,250 529,000
Pura Electric Company, Inc. 99,587 398,336
Unexplored Land Developers, Inc. 102,823 411,288
Punong-Bayan Housing Dev’t Corp. 132,250 529,000
Habagat Realty Development, Inc. 145,822 593,280
Spade One Resorts Corp. 147,040 588,280
Wings Resorts Corp. 104,886 419,536
Kalawakan Resorts, Inc. 132,250 529,000
Labayug Air Terminals, Inc. 159,106 636,416
Landair Int’s Marketing Corp. 168,965 675,856
San Esteban Dev’t Corp. 167,879 670,716
Philippine Technologies, Inc. 132,250 529,000
Balete Ranch, Inc. 166,395 665,576
Discovery Realty Corp. 169,203 676,808
Archipelago Realty Corp. 167,761 671,040
Southern Service Traders, Inc. 120,480 481,916
Oro Verde Services, Inc. 132,250 529,000
Northeast Contract Traders 132,536 538,144
Dream Pastures, Inc. 159,237 676,948
LHL Cattle Corporation 183,216 676,880
Rancho Grande, Inc. 167,614 870,452
Echo Ranch, Inc. 167,897 671,584
Far East Ranch, Inc. 169,227 676,908
Southern Star Cattle Corp. 159,095 676,376
Radio Audience Developers Integrated Or., 167,787 671,104
Inc.
Radyo Pilipino Corp. 167,777 671,104
TOTAL 27,198,545 108,846,948
62
63
Rollo (G.R. No. 166859), p. 61; (G.R. No. 180702), Vol. II, pp. 833.
64
Rollo (G.R. No. 180702), Vol. I, pp. 142, 148-149, 151-155.
65
Rollo (G.R. No. 180702), Vol. II, pp. 592-593, 597-598, 600-603.
66
Id. at 616-618.
67
Cojuangco’s Answer, rollo (G.R. No. 180702), Vol. II, p. 597.
68
Cojuangco Companies’ Answer, rollo (G.R. No. 180702), Vol. II, p. 617.
69
70
Administrative Circular No. 3-99 (January 15, 1999).
71
Rules of Court, Rule 129, Sec. 1.
72
G.R. No. 157847, August 25, 2005, 468 SCRA 142.
73
Id. at 149-150.
74
A.M. No. 03-1-09-SC (July 13, 2004) "Rule on Guidelines to be Observed by Trial
court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-
Discovery Measures."
75
Sandiganbayan’s Pre-Trial Order.
76
Asean Pacific Planners v. City of Urdaneta, G.R. No. 162525, September 23, 2008, 566
SCRA 219, 235; vide Rules of Court, Rule 132, Sec. 2.
77
Garcia v. Court of Appeals, G.R. No. 117032, July 27, 2000, 336 SCRA 475, 481.
78
Vide People v. Quebral, 68 Phil. 564, 567 (1939).
79
427 Phil. 577, 590-591 (2002).
80
G.R. No. 170241, April 19, 2010, 618 SCRA 368.
81
Id. at 376.
82
Vide Republic v. Vda. De Neri, G.R. No. 139588, March 4, 2004, 424 SCRA 676, 692-
693.
83
G.R. No. 152578, November 23, 2005, 476 SCRA 20.
84
Id. at 55-56.
85
Republic v. Vda. De Neri, supra note 82 at 692.
86
G.R. No. 75713, October 2, 1989, 178 SCRA 236.
87
Philippine Coconut Producers Federation, Inc. (COCOFED) v. Presidential
Commission on Good Government, G.R. No. 75713, October 2, 1989, 178 SCRA 236,
240-246.
88
Vide Republic v. Sandiganbayan, G.R. No. 118661, January 22, 2007, 512 SCRA 25,
54.
89
Philippine Coconut Producers Federation, Inc. (COCOFED) v. Presidential
Commission on Good Government, supra note 87 at 252-253.
90
Supra note 7, February 16, 1993 Resolution.
91
G.R. Nos. 147062-64, December 14, 2001, 372 SCRA 462.
92
G.R. No. 118661, January 22, 2007, 512 SCRA 25, 28, 53.
93
Id. at 28, 53.
94
The Court, indeed, has already made the categorical declaration in COCOFED v.
PCGG (G.R. No. 75713, October 2, 1989, 178 SCRA 236), reiterated in Republic v.
COCOFED (G.R. Nos. 147062-64, December 14, 2001; 372 SCRA 462), that the UCPB
was acquired with the use of the Coconut Consumers Stabilization Fund, by virtue of
P.D. 755 (1975).
95
Approving The Credit Policy For The Coconut Industry As Recommended By The
Philippine Coconut Authority And Providing Funds Therefor.
96
DBP Pool of Accredited Insurance Companies v. Radio Mindanao Network, Inc., G.R.
No. 147039, January 27, 2006, 480 SCRA 314, 322.
97
Parel v. Prudencio, G.R. No. 146556, April 19, 2006, 487 SCRA 405, 418-419, citing
Jison v. CA, 350 Phil. 138, 173 (1998).
98
Vide Capitol Wireless, Inc. v. Balagot, G.R. No. 169016, January 31, 2007, 513 SCRA
672, 679, citing Bautista v. Sarmiento, No. L-45137, September 23, 1985, 138 SCRA
587, 593.
99
Bautista v. Court of Appeals, G.R. No. 143375, July 6, 2001, 360 SCRA 618, 627.
100
Black’s Law Dictionary (8th ed., 2004), p. 1228.
101
Under Article 1448 of the Civil Code, which reads: There is an implied trust when
property is sold, and the legal estate is granted to one party but the price is paid by
another for the purpose of having the beneficial interest of the property. The former is the
trustee, while the latter is the beneficiary. x x x x.
102
Creating The Presidential Commission On Good Government.
103
Regarding the Funds, Moneys, Assets, and Properties Illegally Acquired or
Misappropriated By Former President Ferdinand Marcos, Mrs. Imelda Romualdez
Marcos, Their Close Relatives, Subordinates, Business Associates, Dummies, Agents, or
Nominees.
104
Per Teehankee, C.J., in Presidential Commission on Good Government v. Peña, No.
L-77663, April 12, 1988, 159 SCRA 556, 562, 566 citing Justice Isagani Cruz’s separate
opinion in Baseco v. PCGG, 150 SCRA 181, 243, which phrase was borrowed from
Constitutional Commissioner Blas Ople.
105
PCGG Rules and Regulations, Sec. 1(A).
106
107
"3) Whether or not defendant Cojuangco had indeed served in the governing bodies of
well as to the coconut farmers[.]" [rollo (G.R. No. 166859), p. 61; (G.R. No. 180702),
Vol. II, p. 833].
108
Rollo (G.R. No. 180702), Vol. I, p. 148.
109
Rollo (G.R. No. 180702), Vol. II, p. 596.
110
Vide Rules of Court, Rule 8, Sec. 10.
111
"An Act Creating The Philippine Coconut Administration, Prescribing Its Powers,
Functions And Duties, And Providing For The Raising Of The Necessary Funds For Its
Operation," enacted on June 17, 1954.
112
Known as the "Revised Coconut Industry Code."
113
Vide Rules of Court, Rule 129, Sec. 1.
114
1981 PCA Annual Report, 1982 PCA Annual Report, 1984 Annual Report,
reproduced from copies in the collection of the National Library. The 1983 PCA Annual
Report was reportedly unavailable.
115
Executive Order No. 292 (July 25, 1987).
116
Presidential Decree No. 2029 entitled "Defining Government-Owned or Controlled
Corporations and Identifying their Role in National Development" (February 4, 1986).
117
Id., 2nd whereas clause.
118
Black’s Law Dictionary (6th Edition), p. 625.
119
Vide Matter of Heilman’s Estate, 37 Ill.App.3d 390, 345 N.E.2d 536, 540.
120
Black’s Law Dictionary, supra note 118.
121
G.R. No. L-45911, April 11, 1979, 89 SCRA 336.
122
Id. at 367-368.
123
Said section has been incorporated into the present General Banking Law of 2000 as
Sec. 36, viz.:
Sec. 36. Restriction on Bank Exposure to Directors, Officers, Stockholders and

Their Related Interests. – No director or officer of any bank shall, directly or
indirectly, for himself or as the representative or agent of others, borrow from
such bank nor shall he become a guarantor, endorser or surety for loans from such
bank to others, or in any manner be an obligor or incur any contractual liability to
the bank except with the written approval of the majority of all the directors of the
bank, excluding the director concerned: Provided, That such written approval
shall not be required for loans, other credit accommodations and advances granted
to officers under a fringe benefit plan approved by the Bangko Sentral. The
required approval shall be entered upon the records of the bank and a copy of
such entry shall be transmitted forthwith to the appropriate supervising and
examining department of the Bangko Sentral.
Dealings of a bank with any of its directors, officers or stockholders and their
related interests shall be upon terms not less favorable to the bank than those
offered to others.
After due notice to the board of directors of the bank, the office of any bank
director or officer who violates the provisions of this Section may be declared
vacant and the director or officer shall be subject to the penal provisions of the
New Central Bank Act.
The Monetary Board may regulate the amount of loans, credit accommodations
and guarantees that may be extended, directly or indirectly, by a bank to its
directors, officers, stockholders and their related interests, as well as investments
of such bank in enterprises owned or controlled by said directors, officers,
stockholders and their related interests. However, the outstanding loans, credit
accommodations and guarantees which a bank may extend to each of its
stockholders, directors, or officers and their related interests, shall be limited to an
amount equivalent to their respective unencumbered deposits and book value of
their paid-in capital contribution in the bank: Provided, however, That loans,
credit accommodations and guarantees secured by assets considered as non-risk
by the Monetary Board shall be excluded from such limit: Provided, further, That
loans, credit accommodations and advances to officers in the form of fringe
benefits granted in accordance with rules as may be prescribed by the Monetary
Board shall not be subject to the individual limit.
The Monetary Board shall define the term "related interests."
The limit on loans, credit accommodations and guarantees prescribed herein shall
not apply to loans, credit accommodations and guarantees extended by a
cooperative bank to its cooperative shareholders.
124
Supra.
125
10,763,185 out of the 27,198,545 SMC shares at the time of sequestration.
126
Vide Answer, rollo, (G.R. No. 180702), pp. 177-179.
127
Vide Republic v. Estate of Hans Menzi, supra note 84 at 58-59.
128
Supra note 7, citing Republic v. Sandiganbayan, 240 SCRA 376 (1995).
129
Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.
130
131
Id. at 428.
132
4 Phil. 343 (1923), citing Gilbert vs. Hemston, 79 Mich. 326.
133
Francisco, The Revised Rules of Court in the Philippines (1997 Edition), Vol. VII,
Part II, p. 15-16, citing 20 Am. Jur. 147.
134
Under Republic Act No. 3019, a "public officer" includes elective and appointive
officials and employees, permanent or temporary, whether in the classified or
unclassified or exempt service receiving compensation, even nominal, from the
government.
Pursuant to the Title 7, Book II of the Revised Penal Code, a "public officer" is
"any person who, by direct provision of the law, popular election or appointment
by competent authority, shall take part in the performance of public functions in
the Government of the Philippine Islands, or shall perform in said Government or
in any of its branches public duties as an employee, agent or subordinate official,
of any rank or class, shall be deemed to be a public officer."
135
Art. 216. Possession of prohibited interest by a public officer. - The penalty of arresto
mayor in its medium period to prision correccional in its minimum period, or a fine
ranging from 200 to 1,000 pesos, or both, shall be imposed upon a public officer who,
directly or indirectly, shall become interested in any contract or business in which it is his
official duty to intervene.
This provision is applicable to experts, arbitrators and private accountants who, in

like manner, shall take part in any contract or transaction connected with the
estate or property in the appraisal, distribution or adjudication of which they shall
have acted, and to the guardians and executors with respect to the property
belonging to their wards or estate. (underscoring supplied)
136
Interest for personal gain shall be presumed against these public officers responsible
for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the
board, panel or group to which they belong.
137
Vide U.S. v. Udarbe, 28 Phil. 383 (1913).
138
Republic v. Vda. De Neri, supra note 82 at 692-693.
139
10,763,185 out of the 27,198,545 SMC shares at the time of sequestration.
140
Vide Answer, rollo, (G.R. No. 180702), pp. 177-178.
141
(1) Through misappropriation, conversion, misuse or malversation of public funds or
raids on the public treasury;
(2) Through the receipt, directly or indirectly, of any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from any person
and/or entity in connection with any government contract or project or by reason
of the office or position of the official concerned.
(3) By the illegal or fraudulent conveyance or disposition of assets belonging to

the government or any of its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations;
(4) By obtaining, receiving or accepting directly or indirectly any shares of stock,

equity or any other form of interest or participation in any business enterprise or
undertaking;
(5) Through the establishment of agricultural, industrial or commercial

monopolies or other combination and/or by the issuance, promulgation and/or
implementation of decrees and orders intended to benefit particular persons or
special interests; and
(6) By taking undue advantage of official position, authority, relationship or

influence for personal gain or benefit.
142
Given the extent of government ownership of its shares of stock, the public nature of
the funds in its control, the purpose for which it was acquired, and the manner of its
acquisition, UCPB was thus a government-owned and controlled corporation (GOCC).
Meanwhile, PCA was a government entity. Considering the foregoing and in light of the
earlier admissions, Cojuangco was indeed a public officer in 1983, it having been
established that Cojuangco was a PCA Director and a UCPB President and Director.
143
Citing Gokongwei, Jr. v. Securities and Exchange Commission, No. L-45911, April
11, 1979, 89 SCRA 336, , inter alia.
144
Citing Severino v. Severino, supra note 132, inter alia.
145
Art. 216. Possession of prohibited interest by a public officer. - The penalty of arresto
mayor in its medium period to prision correccional in its minimum period, or a fine
ranging from 200 to 1,000 pesos, or both, shall be imposed upon a public officer who,
directly or indirectly, shall become interested in any contract or business in which it is his
official duty to intervene.
This provision is applicable to experts, arbitrators and private accountants who, in

like manner, shall take part in any contract or transaction connected with the
estate or property in the appraisal, distribution or adjudication of which they shall
have acted, and to the guardians and executors with respect to the property
belonging to their wards or estate.
146
In conformity with Cojuangco v. Sandiganbayan, G.R. No. 183278, April 24, 2009,
586 SCRA 790.
DISSENTING OPINION
BRION, J.:
This Opinion refers to three consolidated petitions – G.R. No. 166859, G.R. No. 169203, and
G.R. No. 180702 – involving related issues raised in the Sandiganbayan Civil Case No. 0033-F. I
dissent in light of the gross negligence the counsel for the Republic committed in the course of
the handling of the case – a circumstance that denied the Republic its day in court in a claim for
recovery that involves an approximate present-day value of P84.56 billion or 5.49% of the 2010
entire national budget. Thus, I vote to grant the petition for purposes of the remand of the case
for hearing on the merits through competent counsels whose integrity are beyond question.
I. BACKGROUND FACTS
On July 31, 1987, the petitioner Republic of the Philippines (Republic) filed a complaint with the
Sandiganbayan, entitled Republic v. Eduardo M. Cojuangco, et al. and docketed as Civil Case
No. 0033. The complaint, which named 59 other defendants, was for the recovery of assets and
other properties that were allegedly ill-gotten.1
The complaint underwent amendments and the final version – the Third Amended Complaint
(Subdivided) [Re: Acquisition of San Miguel Corporation (SMC)] – was filed on May 19, 1995.2
On March 24, 1999, the Sandiganbayan allowed Civil Case No. 0033 to be subdivided into eight
complaints, each relating to different transactions and assets. Civil Case No. 0033-F impleaded
as defendants the private respondents Eduardo M. Cojuangco, Jr. (Cojuangco), 11 other
individuals, and 71 corporations. The properties sought to be recovered were two blocks of SMC
shares, generally described as follows:
(1) 33,133,266 SMC shares, labeled for convenience as the "Coconut Industry
Investment Fund (CIIF) block" or "CIIF block" and registered in the names of 14 holding
companies3; and
(2) 16,276,545 SMC shares, known for convenience as the "Cojuangco block" and
registered in the names of the 44 respondent corporations.4
The CIIF block was subsequently awarded to the Republic by the Sandiganbayan in its Partial
Summary Judgment promulgated on May 7, 2004.5 This judgment lapsed to finality and was
duly executed. Litigation on the Cojuangco block continued. This is the aspect of Civil Case No.
0033-F that is now before the Court through the present consolidated petitions.
A. The Complaint
In its complaint,6 the Republic claimed that Cojuangco served as a public officer during the
Marcos administration. In the course of this service, he acquired assets, funds, and other
properties manifestly disproportionate to his lawful income. He allegedly had control over the
coconut levy funds, which he misused to buy out the majority of the outstanding shares of SMC.
In 1983, he bought most of the 20 million shares of Enrique Zobel in SMC. Allegedly, the
Cojuangco block numbered 16,276,897 shares and were worth $49,000,000. Some of these
shares were placed in the names of Meadowlark Plantations, Inc. and Primavera Farms, Inc.,
which are also defendants in Civil Case No. 0033-F. The Articles of Incorporation of
Meadowlark Plantations, Inc., Primavera Farms, Inc., and Silver Leaf Plantations, Inc. show that
Atty. Jose C. Concepcion owned 99.6% of their outstanding stocks. His shares in these
companies, however, were covered by three documents entitled Declaration of Trust and
Assignment of Subscription, which he had executed in favor of an unnamed assignee.
Additionally, Atty. Concepcion and four other stockholders of the three corporations executed
Voting Trust Agreements in favor of Cojuangco. (Thus, the shares – while really belonging to an
unknown assignee – were controlled and could be voted by Cojuangco.) The other defendant
corporations (also respondents in the present petitions) are purportedly owned by interlocking
directors who have admitted their status as mere "nominee" stockholders. The Republic claimed
that the respondents used the funds advanced by six large coconut oil mills and 10 copra trading
companies and borrowed as well from the United Coconut Planters Bank (UCPB) to purchase
the holding companies and the SMC shares.7
The Republic alleged, too, that Cojuangco acquired the SMC shares in breach of public trust and
by abuse of right and power, resulting in his unjust enrichment. Thus, it sought to recover the
funds and properties, including their increments (such as cash and stock dividends and interests),
as these are properties held under constructive trust for the Republic. It likewise prayed for the
award of damages – actual, moral, temperate, nominal, and exemplary – and attorney’s fees,
litigation expenses, and treble judicial costs.8
B. The Answer
In his Answer,9 Cojuangco denied that he engaged in any unlawful transaction and used coconut
levy funds in acquiring the subject property. However, he admitted:
(1) that he was a Director of the Philippine Coconut Authority (PCA), and a Director and
President of the UCPB; and
(2) that in 1983, he acquired from the Ayala Corporation approximately 20% of SMC’s
outstanding capital stock; these shares were registered in the name of Meadowlark
Plantations, Inc., Silver Leaf Plantations, Inc., and Primavera Farms, Inc. He clarified that
he was the beneficial owner of these shares.
Cojuangco filed counterclaims for actual and moral damages for the illegal sequestration of his
shares. The respondent corporations also filed counterclaims for actual and moral damages on
account of besmirched reputation, the illegal sequestering of their property, and the filing of an
unfounded suit.10
C. The Pre-Trial
In his Pre-Trial Brief dated February 11, 2000,11 Cojuangco identified the principal issues of the
case as:
(1) Did the purchase price paid to the seller come from coconut levy funds?
(a) May the proceeds of loans from UCPB be deemed as coming from coconut levy
funds?
(2) Assuming that the price paid for the acquisition of the shares of stock came from
coconut levy funds, are the shares of stock subject to be "returned and reconveyed" to
plaintiff?12
The respondents also stated in their pre-trial brief that they intended to present the following
evidence:
4.02 Herein defendants intend to present the following evidence:

xxx
(b) Proposed Exhibits _____, _______, _______,
Records of the United Coconut Planters Bank which would show borrowings of the companies
listed in Annexes "A" and "B," or companies associated or affiliated with them, which were used
to source payment of the shares of stock of the San Miguel Corporation subject of this case.
[emphasis supplied]
4.03. Witnesses.
xxx
(b) A representative of the United Coconut Planters Bank who will testify in regard the loans
which were used to source the payment of the purchase price of the SMC shares of stock.
(c) A representative of the CIIF Oil Mills who will testify in regard the loans or credit advances
which were used to source the payment of the purchase price of the SMC shares of stock.13
[emphasis ours]
The Republic filed its Pre-Trial Brief on May 15, 2000.14 Among the documents attached (with
emphasis supplied) were:
(1) Commission on Audit (COA) report on the UCPB dated 1986;
(2) Affidavits of Attys. Jose C. Concepcion, Florentino M. Herrera III, Teresita J.

Herbosa, Teodoro D. Regala, Victoria de los Reyes, Manuel R. Roxas, Rogelio A.
Vinluan, Eduardo U. Escueta, Franklin M. Drilon, stating that he or she was merely a
nominee stockholder of some of the respondent corporations and that she or she did not
have a proprietary interest in the shares of the respondent corporations;
(3) Blank Declarations of Trust and Assignment executed by some of the interlocking
directors stating that their ownership of the shares of the respondent corporations were
assigned to them nominally and that they were held for the benefit of an unnamed
assignee;
(4) Voting Trust Agreements between Cojuangco as trustee and some of the interlocking
directors of the respondent corporations as trustors over the SMC shares owned by
respondents Silver Leaf Plantation, Meadowlark Plantations, Inc., and Primavera Farms,
Inc.
(5) the Memorandum of Agreement between Cojuangco and PCA, executed on May
1975, wherein PCA purchased Cojuangco’s options shares in First United Bank (FUB),
which later became UCPB; and
(6) Statements of Assets and Liabilities of Cojuangco for the years 1973, 1976, 1978, and
1982; and
(7) the Summation Analysis of Wealth and Income of Cojuangco.
The testimonies of the several potential witnesses were also cited, among them, the COA officers
regarding the COA reports, the interlocking directors of the respondent corporations, the
Corporate Secretary of SMC, the Corporate Secretary and the Comptroller of UCPB, and the
Chairman of the Securities and Exchange Commission (SEC).
D. Motions for Partial Summary Judgment
1. For the CIIF block of SMC Shares
On July 25, 2002, the Republic filed a Motion for Judgment on the Pleadings and/or Summary
Judgment over the CIIF Block of SMC shares.15 Cojuangco and the Coconut Producers
Federation of the Philippines (COCOFED et. al16), among others, filed an Opposition to the
Republic’s motion.17
In his Opposition,18 Cojuangco continued to maintain his position that he had no direct interest
over the CIIF shares, but opposed the motion based on procedural grounds.
COCOFED claimed ownership over the CIIF shares based on the provisions of Presidential
Decree (PD) Nos. 961 and 1468, which authorize the free distribution of the investments made
by UCPB, in the form of shares of stock, to the coconut farmers.19 COCOFED et. al claimed that
since its members (farmers/producers) are the registered and/or beneficial owners of at least 51%
of the capital stock of the CIIF Companies that wholly own the 14 Holding Companies, which, in
turn, are the registered owners of the CIIF block of SMC shares, then they are the ultimate
beneficial owners of these shares.20
On February 23, 2004, the Sandiganbayan issued an Order21 outlining what it considers as
admitted facts or facts that appear without substantial controversy, among others:
(1) The CIIF is an accumulation of a portion of the Coconut Consumers Stabilization

Fund (CCSF) and the Coconut Industry Development Fund (CIDF), which PD Nos. 961
and 1468 require to be utilized by the UCPB for investment, in the form of shares of
stock in corporations engaged in industries and commercial activities relating to the
coconut and palm oils industry. The corporations where the CIIF has been invested are
referred to as the CIIF Companies.
(2) Using the CIIF, the UCPB acquired controlling interests in the CIIF Companies using
the CIIF.
(3) The UCPB distributed part of the investments made in the CIIF Companies to
identified coconut farmers and retained part as CIIF Administrator. These coconut
farmers are the registered controlling stockholders of the CIIF Companies.
(4) The 14 Holding Companies were incorporated to hold the SMC shares.
(5) All the outstanding capital stock of the 14 Holding Companies is owned by the CIIF
Companies.
(6) UCPB, as CIIF Administrator, authorized the CIIF Companies to acquire 33, 133, 266
shares of stock of SMC.
(7) To finance the acquisition of the SMC shares, the fourteen (14) Holding Companies
used their incorporating equity and borrowed funds from UCPB. The CIIF Companies
also extended cash advances to the 14 Holding Companies.
(8) The 27% CIIF block of SMC shares are registered in the names of the 14 Holding
Companies, which are wholly owned by the six CIIF Companies;
(9) Cojuangco disclaims any interest in the 27% CIIF Block of SMC shares.
Cojuangco filed his Comment to the Sandiganbayan Order, admitting that he has no direct
interest over the CIIF block of SMC shares; but he claims indirect interest over these shares as a
stockholder of SMC.22
On May 7, 2004, the Sandiganbayan granted the Republic’s motion and ordered the
reconveyance of the CIIF block of SMC shares to the government.23
The Sandiganbayan rejected the statutory bases of COCOFED’s assertion of ownership. First, it
declared as unconstitutional the provisions of PD Nos. 755, 961, and 1468 — that uniformly
mandate that the CCSF and the CIDF "shall not be construed or interpreted, under any law or
regulation, as special and/or fiduciary funds, or as part of the general funds of the national
government" and that "the disbursements thereof as herein authorized for the benefit of the
coconut farmers shall be owned by them in their private capacities"24 – for violation of Section
2(1), Article XI(D) of the 1973 Constitution25 (similar to Article IX-D, Section 2 of the 1987
Constitution26).
Second, the Sandiganbayan, relying on Republic v. COCOFED27 held that the registered owners
of shares acquired with the use of public funds have the burden of proving how those shares have
become their legitimate private property. The Sandiganbayan ruled that the provisions in PD No.
755, 961 and 1468 — mandating the free distribution of the UCPB shares and of the bank’s
investments in the CIIF Companies to the coconut farmers — are fatally defective for failing to
show how the avowed public purpose of the same laws could be achieved by the free distribution
of shares. It added that the laws failed to provide sufficient standards to guide the PCA in
promulgating rules and regulations to effect the free distribution. The Sandiganbayan
categorically stated:
The investments made by UCPB in CIIF Companies are required by [P.D. 755, 961 and 1468] to
be equally distributed for free by [UCPB] to the coconut farmers. The public purpose sought to
be served by the free distribution of the shares of stock acquired with the use of public funds is
not evident in [said P.D.s]. More specifically, it is not clear how private ownership of the shares
of stock acquired with public funds could serve a public purpose. The mode of distribution of the
shares of stock also left much room for diversion of assets acquired through public funds into
private uses or to serve directly private interests, contrary to the Constitution. [emphasis ours]
The Sandiganbayan concluded that since the CIIF Companies were acquired with public funds,
the 14 Holding Companies and all their assets, including the CIIF block of SMC shares, being
public in character, belong to the government, in trust for the ultimate beneficiaries — the
coconut farmers.
Cojuangco moved for reconsideration, but he was rebuffed by the Sandiganbayan in its
December 28, 2004 resolution.28 The resolution lapsed to finality and was subsequently
implemented.
2. For the Cojuangco block of SMC shares
The Republic likewise filed on July 11, 2003 a Motion for Partial Summary Judgment [Re:
Shares in San Miguel Corporation Registered in the Respective Names of Defendant Eduardo M.
Cojuangco, Jr. and the Defendant Cojuangco Companies].29
In this motion, the petitioner claimed that Cojuangco acquired approximately 20% of the
outstanding capital stock of SMC in 1983. Of these shares, 18% of the outstanding shares were
registered in the names of the respondent corporations. All the shares were claimed to have been
acquired with public funds from the coconut levy. At the time the shares were bought,
Cojuangco was a director of UCPB and the PCA. Thus, he breached his fiduciary duty as a
director when he diverted coconut levy funds, intended for the use of coconut farmers, to fund
his own purchase of SMC shares.
The respondents filed an Opposition30 to the motion for partial summary judgment raising,
among other arguments, that their admission that loans from UCPB were used to pay for the
SMC shares did not constitute an admission that the SMC shares were acquired with coconut
levy funds since the ownership of the money loaned transfers to the borrower.31
On October 2, 2003, the Republic filed a Reply to the respondents’ opposition. Among the
documents it attached as Annexes "A" to "F" were original copies of certification by the
Corporate Secretary of the UCPB and CIIF Oil Mills32 showing that Cojuangco had been among
its officers and directors from 1983 to 1986, particularly:33
COMPANY POSITION PERIOD

Legaspi Oil Company President June 22, 1983 to May 29, 1985
San Pablo Manufacturing Corporation President June 22, 1983 to May 29, 1985
Granexport Manufacturing Corporation President June 22, 1983 to October 15, 1986
United Coconut Planters Bank President 1983 and 1984
On October 21, 2003, the Sandiganbayan conducted a hearing on the motion for partial summary
judgment. During the proceedings, the Republic clarified its claim that the SMC shares were ill-
gotten wealth because they were acquired through UCPB loans, CIIF Oil Mills or other coconut
levy funded entities.34 The respondents, on the other hand, admitted that the proceeds used in
acquiring the SMC shares were partly derived from UCPB loans.35
On December 10, 2004, the Sandiganbayan issued a Resolution36 denying the Republic’s motion
for summary judgment. It considered as undisputed facts the following:
(1) Cojuangco admitted that he acquired in 1983 approximately 20% of the outstanding
SMC shares, which are registered in his name and in the name of 44 corporate
respondents;
(2) Cojuangco used the proceeds of loans obtained from various sources in purchasing
the said block of shares;
(3) the block of shares were purchased by Cojuangco from the Ayala Corporation and
several other individuals and entities;
(4) the total of 27,198,545 shares of SMC stock at the time of the sequestration in 1989
has grown to 108,846,948 shares.37
On the other hand, the Sandiganbayan determined the following to be disputed facts:
(1) What are the various sources of funds, which the defendant Cojuangco and his
(2) Whether or not such funds acquired from alleged "various sources" can be considered
coconut levy funds;
(3) Whether or not defendant Cojuangco had indeed served in the governing bodies of
(4) Whether or not defendant Cojuangco took advantage of his position and/or close ties
E. The Hearing
During the hearing scheduled on August 8, 2006, the Republic manifested through its counsel
that it would no longer present testimonial evidence and instead asked that the following
documents be marked and taken judicial notice of by the court:
(1) Cojuangco’s Answer to the Third Amended Complaint (Subdivided) dated June 23,
1999 in Civil Case No. 0033-F;
(2) Defendant CIIF Oil Mills and 14 CIIF Holding Companies’ Answer dated January 5,
2000;
(3) Cojuangco’s Pre-Trial Brief dated February 11, 2000, in the same case;
(4) Republic’s Motion for Summary Judgment [Re: Shares in San Miguel Corporation
registered in the Respective Names of Defendant Eduardo M. Cojuangco, Jr. and the
Defendant Cojuangco Companies] dated July 11, 2003, also in the same case;
(5) PD No. 961, dated July 11, 2976, entitled "An Act to Codify the Laws Dealing with
the Development of the Coconut and other Palm Oil Industry and for Other Purposes";
(6) PD No. 755, dated July 29, 1975, entitled "Approving the Credit Policy for the
Coconut Industry as Recommended by the PCA and Providing Funds Therefore";
(7) PD No. 1468, dated June 11, 1978, entitled "The Revised Coconut Industry Code";
(8) Decision of the Supreme Court in Republic v. Sandiganbayan, G.R. No. 96073,
January 23, 1995 (240 SCRA 376); and
(9) Decision of the Supreme Court in Republic v. COCOFED, G.R. Nos. 147062-64,
December 14, 2001 (372 SCRA 462).
The Republic likewise filed a Manifestation of Purposes,39 dated August 28, 2006, which the
court considered as an offer of documentary evidence. The Sandiganbayan issued a Resolution
on September 18, 200640 admitting all the exhibits that the Republic offered.
On November 24, 2006, the Republic rested its case. The respondents’ counsel, for their part,
manifested that they would no longer present controverting evidence, since the Republic had not
proven its allegations; instead, the respondents offered documentary evidence to support their
counterclaims.41
In an Order dated December 5, 2006,42 the graft court admitted all the exhibits that the
respondents offered. The trial ended on the same date and the parties were ordered to file their
respective memoranda. Thereafter, the case was considered submitted for resolution.
F. The Sandiganbayan Decision
On November 28, 2007, the Sandiganbayan issued its Decision43 denying the Republic’s claims,
as well as the respondents’ counterclaims. It ruled that the Republic had not been able to prove
that the respondents acquired the SMC shares using public funds or that Cojuangco abused his
position to acquire these shares. It pointed out the lack of paper trail or testimonies that would
establish the illegal scheme that the respondents allegedly engaged in. It noted that even during
pre-trial, the Republic had not been able to identify the documents that it would present.
The present petitions present to this Court the core issue for resolution: whether the
government’s claim over the subject shares is meritorious, based on the evidence on record.
II. REFLECTIONS
A. Preliminary Considerations
A.1. The Republic’s Claim for Recovery:
A Return to the Wider View
The Republic’s quest, as expressed in its complaint against Cojuangco and the other respondents
for the recovery of SMC shares, focused on Cojuangco from the very beginning; its objective
was the recovery of what it considered to be Cojuangco’s ill-gotten wealth lodged in the SMC
shares. Thus, the first cause of action was for the recovery of properties that were alleged to be
manifestly disproportionate to Cojuangco’s income. The second was to recover the properties
that Cojuangco allegedly acquired in breach of the public trust through abuse of the power he
enjoyed because of his close association with former President Marcos.
Somewhere in the course of prosecuting the case, the Republic dropped its pursuit of the first
cause of action. Thus, this claim proved to be a road not taken for the government. The second
cause of action, on the other hand and for purposes perhaps of an orderly and logical handling,
was divided into two aspects with different set of objectives. The first aspect identified and
concentrated on the CIIF block of SMC shares registered in the names of 14 holding companies
(which in turn were formed by the six CIIF Oil Mills where UCPB had made coconut levy fund
investments). The second, identified as the Cojuangco block of SMC shares, concentrated on
Cojuangco and the companies he established to purchase the SMC shares. The loans from the
UCPB and the advances from the CIIF Oil Mills were alleged to be the conduits through which
coconut levy funds were channeled and used to pay for the purchased SMC shares.
After pre-trial, the Republic separately moved for partial summary judgments for the CIIF block
and for the Cojuangco block, believing – rightly or wrongly – that enough undisputed facts
existed to justify a judgment on the merits. The motion covering the CIIF block met favorable
response from the Sandiganbayan, whose award of the shares to the Republic did not merit any
contrary response from Conjuangco; faced with the Sandiganbayan judgment, the opposition that
Cojuangco and the other respondents initially showed simply melted. Thus, this aspect of the
case faded into the background, together with the first cause of action for unjust enrichment. The
Cojuangco block aspect, on the other hand, continued to be litigated under the theory that
Cojuangco amassed these shares through abuse of power made possible by his close association
with the martial law regime.
In another turn of events, the counsels for the Republic chose not to go to trial despite an earlier
rejection of its motion for summary judgment and the unmistakable signals from the
Sandiganbayan that it considered the case unripe for submission for decision. Instead, the
Republic served a Manifestation of Purpose that the Sandiganbayan chose to regard as its formal
offer of documentary evidence. Faced with this move, Cojuangco likewise chose not to submit
evidence on the theory that the Republic’s submission, composed mainly of pleadings filed,
decided cases and laws, did not at all prove the allegations of the remaining aspect of the
complaint.
A reminder of the wider view of the case as originally filed is offered as an opening in these
Reflections in order to ensure that the original big picture is not forgotten. The original picture
the Republic painted through the complaint is about a series of interconnected moves – both at
the CIIF end and from the end of Cojuangco, the UCPB, and the allied Cojuangco companies
– where Cojuangco was at the center to use the coconut levy funds, or the companies funded or
supported by coconut levy funds, for the purchase of SMC shares. While the Republic itself,
wittingly or unwittingly, has partitioned this big picture into a forgotten first cause of action and
a second cause of action that was divided into two aspects, this big picture and the grand and
coordinated moves that it drew at the beginning should remain in mind as a background in
viewing the remaining aspect under litigation. This background may be useful in sifting through
the facts established by the Partial Summary Judgment on the CIIF block of SMC shares for use
in considering the present Cojuangco block aspect; facts established between the same parties in
one aspect of the same case should be conclusive in the remaining aspect of the case. Advances
from the CIIF Oil Mills were, after all, admitted by Cojuangco, as discussed below; the
interconnectedness of the two aspects of the second cause of action are plain and evident and
only remains to be linked by evidence. These established facts may also somehow contribute to a
deeper understanding of the turn of events in the Republic’s handling of and the developments in
the case, leading to an unappealed partial summary judgment and the virtual refusal of the
Republic’s counsels to proceed to trial. Certainly, these established facts as well as the attendant
circumstances and developments in the remaining Cojuangco block aspect of the case can be
very useful in appreciating and judging the actions of the lawyers of the Republic in terms of the
competence, degree of care and even the integrity they exhibited in handling the case.
A.2. What is at stake – value of

Cojuangco block of SMC shares
The Republic’s Third Amended Complaint, filed in 1995, claimed ownership over the
16,276,545 of SMC shares that were allegedly acquired by Cojuangco in 1983 with the use of
coconut levy funds. At the time of acquisition, this Cojuangco block of SMC shares constituted
20% of the total shareholdings of SMC and was purchased for US$49 million.44 Because of the
issuance of new shares, the Cojuangco block’s shareholding was reduced to 17% in 200745 and
15% in 2010.46 As of December 2010, the remaining 15% shareholding translates to 493,375,183
common shares, and is worth about P84.56 billion47 or US$1.86 billion.48 At the current
exchange rate,49 the original acquisition cost of the shares is now equivalent to P2.23 billion,
which means that over the past 27 years, the shares have ballooned 38 times its original value.
For added perspective, the shares’ acquisition cost of US$49 million was equivalent to 0.94% of
the national budget for 1982;50 it was also equivalent to 12.29% of the budget allocated for
education,51 307.83% of the budget for social service and development,52 and 25.07% of the
budget for health.53 The present worth of the shares (P84.56 billion) is equivalent to 5.49% of the
entire national budget for 2010.54 This is also equivalent to about half the 2010 appropriation for
education or 48.94%, 5.83% of the budget for social welfare and development, and 2.97% of the
budget for health.
The SMC is one of the biggest conglomerates in the country. It is the leading food, beverage and
packaging company, now with diversified interests and substantial investments in non-related
industries like power and other utilities, banking, mining, energy, tollways, infrastructure, and
airports. According to SMC’s Annual Report for 2009, its total assets amount to P438.5 billion,
and its income was P57.8 billion – double the amount appropriated in 2010 for health and social
welfare, and one-third of that for education. SMC generates nearly 4% of the gross national
product and pays 6% of the total taxes collected.55
Certainly, the State’s recovery of the SMC shares, if substantiated, would translate into a
significant increase in the government’s assets and would be a steady source of income. But the
State’s interest in SMC goes beyond these numerical figures. The SMC is a company that has
been in existence for over 120 years. It is one company that has integrated itself in the lives of
the Filipino people. Starting in 1890 with beer as its sole product, now its "product portfolio
includes over 400 products"56 – many of which the Filipino people have grown up with and have
become parts of their lives. No Filipino would dispute SMC’s claim that it "has generated strong
consumer loyalty through brands that are among the most formidable in the Philippine food and
beverage industry." Its flagship product – the San Miguel Beer – is in fact known worldwide.
Indeed, SMC’s internationalization efforts, by extending operations to Asia and Australia, have
also become a source of national pride.
From these perspectives, the Republic undoubtedly has a strong economic interest to protect, for
itself and for the Filipino people, particularly for the coconut farmers. Beyond these interests, the
integrity of government processes and the people’s political will to take the high moral road are
likewise being tested in this long drawn-out case. This is not to say that a reversion as demanded
by government should take place. Beyond reversion or non-reversion is the necessity of putting a
dignified closure to nagging questions that the nation has carried since the end of the Marcos
years.
With these reminders made, I go back to the consolidated petitions before us.
B. Cojuangco’s Admissions on Sources

of Funds for the SMC shares Purchase
The Republic’s claim over the Cojuango block of shares is based on the premise that public
funds were used for the purchase of these shares. While an admission exists on the record on the
part of both parties that Cojuangco acquired the shares using UCPB loans and CIIF advances, no
unanimity exists on whether these loans are in the nature of public funds. Justice Carpio
Morales’ ponencia and Justice Bersamin’s dissent offer contrary views on whether, to begin
with, an admission has been made that the UCPB loans and the CIIF Oil Mills advances were
used for the purchase of the shares.
I agree with Justice Carpio Morales that Cojuangco did indeed admit in his pre-trial brief that the
funds used in the purchase of SMC shares were sourced from UCPB loans and CIIF Oil Mills
advances.
B.1. Cojuangco’s Admission in his Pre-Trial Brief
Conjuangco’s Pre-Trial Brief made a categorical statement of the evidence he would present at
the trial. This statement is quoted verbatim at page 5 hereof.
He categorically said that he would introduce "Records of the United Coconut Planters Bank
which would show borrowings of the companies listed in Annexes "A" [referring to the 14 CIIF
holding companies] and "B" [referring to the 43 or 44 respondent companies] x x x used to
source payment of the shares of stock of the San Miguel Corporation."
He likewise represented that he would call as witnesses a "representative of the United Coconut
Planters Bank who will testify in regard the loans which were used to source the payment of the
purchase price of the SMC shares of stock" and a "representative of the CIIF Oil Mills who will
testify in regard the loans or credit advances which were used to source the payment of the
purchase price of the SMC shares of stock."57
Justice Bersamin dismisses these statements as mere proposals of Cojuangco which do not
constitute an admission that the funds in the purchase of the SMC shares came from the UCPB
loans and the CIIF Oil Mills advances. "[T]he statement were merely being proposed, that is,
they were not yet offered or were not yet intended as admissions of any fact stated therein."58
With due respect, Justice Bersamin’s contention fails to consider a party’s intent and
representation in stipulating on the evidence he proposes to present during trial; by his
stipulation, the party thereby claims – and thus admits – that the evidence he pointed to would
substantiate the material averments in his pleadings.
In his Answer, Cojuangco alleged that:
5.02.b. Herein defendant admits paragraph 14(b) of the complaint59 insofar as it is alleged therein
that in 1983, he acquired shares of stock representing approximately 20% of the outstanding
capital stock of San Miguel Corporation x x x. Herein defendant further denies the allegation,
implication or insinuation, whether contained in paragraph 14(b) or in any other portion of the
complaint that he acquired the aforesaid interest in San Miguel Corporation with the use of
coconut levy funds, or in any manner contrary to law, the truth being that herein defendant
acquired said shares of stock using the proceeds of loans obtained by herein defendant from
various sources.
Cojuangco did not need to enumerate in this Answer his alleged various sources of loans, as
these are evidentiary matters that need not be actually introduced until the trial. At the time he
filed his Answer, it was sufficient for him to aver, as his defense, that the coconut levy funds
were not used to fund the purchase of the SMC shares; rather, he obtained the funds from
"various sources." What these various sources are, are matters of evidence that he would
introduce.
In his Pre-Trial Brief, however, what he generally claimed in his Answer became concrete when
he represented that these pieces of evidence consist of UCPB documents and testimonies of
witnesses from UCPB and CIIF Oil Mills. As no evidence can be considered during trial unless
they have been identified during pre-trial, this identified evidence substantiating the material
allegation in his Answer is effectively an admission of what the various sources of funding were.
In other words, the respondents identified the various sources of funds alleged in his Answer
when he offered in his Pre-Trial Brief to support this allegation through documents from UCPB
and the testimonies of witnesses from UCPB and CIIF Oil Mills on loan and credit advances.
The statement in Cojuangco’s Pre-Trial Brief is thus not a mere proposal but a direct admission
of what would support his material allegation. Indeed, it is ridiculous for a party to stipulate on
documents and witnesses he would present as evidence if these were not intended to support his
position. To be sure, a defendant may choose not to present evidence should the plaintiff fail to
support its claims, but his desistance is not due to any change of position but due to the lack of
need to support his position; a defendant cannot radically change his theory of the case and deny
his earlier statements depending on what the plaintiffs present as evidence.
B.2. Admission on October 21, 2003

by Cojuangco’s Counsel
During the October 21, 2003 hearing, the Sandiganbayan sought to clarify whether Cojuangco
admitted that the SMC shares were acquired using UCPB loans. Atty. Estelito Mendoza, counsel
for Cojuangco, initially declared that the statement in their Pre-Trial Brief did not amount to an
admission. When probed by the court, Atty. Mendoza sought clarification from the counsel for
the Republic if it theorizes that the SMC shares are "ill-gotten wealth because they were paid
with use of loans." Counsel for the Republic declared that precisely because the loans came from
UCPB/CIIF Oil Mills that made them ill gotten. Atty. Mendoza then proceeded to state that
ATTY. MENDOZA:
Records which would show borrowings of the companies listed in Annexes A and B or
companies affiliated which were used to source funds. Well, we do not say how much, we do not
say when, we do not say whether this has been all paid back. x x x We are fortunate and gratified
that plaintiff makes it clear now that their cause of action is solely based on their cause of action
[sic] that these shares are ill-gotten wealth based solely on their assertion now that the funds used
to pay for the shares were borrowed from the United Coconut Planters Bank. So that is the
position of the plaintiff. We are saying some of the funds but not all of the funds, full stop.60
At the very least, Atty. Mendoza’s statement was an admission that UCPB loans and CIIF Oil
Mills advances were used as funding to purchase a portion of the subject SMC shares. As to how
much was the loan, when it was taken, and if it was already paid, however, remained to be
proven.
B.3. Implied Admission through Failure to Deny

Cojuangco also failed to specifically deny the allegation in paragraph 14(l) of the Republic’s
Complaint that UCPB and CIIF Oil Mills loans were used to purchase SMC stocks. Under the
Rules of Court,61 what is not denied is deemed admitted.
The Complaint reads:
14. x x x (l) These companies, which ACCRA Law Offices organized for Defendant Cojuangco
to be able to control more than 60% of SMC shares [referring to those enumerated in paragraph
(k), which corresponds to the 44 Cojuangco-affiliated companies], were funded by institutions
which depended upon the coconut levy such as the UCPB, UNICOM, United Coconut Planters
Life Assurance Corp. (COCOLIFE), among others, Cojuangco and his ACCRA lawyers used the
funds from 6 large coconut oil mills and 10 copra trading companies to borrow money from the
UCPB and purchase these holding companies and the SMC stocks. Cojuangco used $150 million
from the coconut levy, broken down as follows:
Amount
Source Purpose
(in millions)
$22.26 Oil mills Equity in holding companies
$65.6 Oil mills Loan to holding companies
$61.2 UCPB Loan to holding companies
The entire amount, therefore, came from the coconut levy, some passing through the Unicom oil
mills, others directly from the UCPB.
Cojuangco answered the above allegations by stating that:
5.02.1. Herein defendant denies paragraph 14(l) of the complaint, the truth being that the
companies incorporated in his behalf by the ACCRA Law Office cumulatively own less than
20% of the outstanding capital stock of SMC, that herein defendant did not use the coconut levy
funds, or any part thereof, to acquire his shareholdings in SMC.
This bare statement that he did not use coconut levy funds to acquire his shareholding in SMC is
a mere general allegation that does not negate the Republic’s material averment that UCPB
loans, among others, funded the purchase of the SMC shares. Section 10, Rule 8 of the Rules of
Court requires a defendant to "specify each material allegation of fact the truth of which he does
not admit and, whenever practicable, shall set forth the substance of the matters upon which he
relies to support his denial." Otherwise, material averments in the complaint are deemed
admitted.62 It was only in his Pre-Trial Brief that Cojuangco qualified his general averment that
the SMC shares were not bought with coconut levy funds.
Cojuangco questioned the characterization of the UCPB loans by contending that these became
private in nature based on Civil Code provisions on Loan only after the Republic filed its motion
for summary judgment. But even this contention (that the UCPB loans are private in character)
implies that Cojuangco availed of UCPB loans.
C. What loans and advances did Cojuangco secure?
While I may agree with the ponencia that Cojuangco indeed admitted that he secured loans from
UCPB and advances from the CIIF Oil Mills, I disagree with its conclusion that the totality of the
SMC shares Cojuangco purchased should totally revert to the Republic in the absence of more
specifics on the extent of the loan and advances made and the purchase effected. Between
admissions that purchases were made and that loans and advances were secured to finance these
purchases, are big factual and evidentiary gaps on the extent, manner, and other details of the
loans, the advances and the purchases made. These are critical parts of the transactions claimed
to be the basis for reconveyance and are parts of the cause of action the Republic, as plaintiff, has
to prove. These are component parts of the cause of action that the plaintiff has the burden of
proving before the burden of evidence shifts to the defendant. As will be discussed below, the
manner the loans and advances were secured are critical elements to identify the SMC shares as
ill-gotten wealth that the Republic can recover. All these do not appear to have been proven
through the evidence the Republic offered to support its case.
D. The public nature of the sources of

funds used to purchase the SMC shares
Cojuangco’s admission that he availed of UCPB loans and CIIF Oil Mills advances does not also
automatically characterize these proceeds as ill-gotten wealth. In his Revised Reflections, Justice
Bersamin enumerates the elements that would establish that assets and properties are ill-gotten
wealth under Executive Order (EO) No. 1 and 2: (1) they must have originated from the
government itself; and (2) they must have been taken by former President Marcos, his immediate
family, relatives, and close associates by illegal means.63 Justice Bersamin identified these
elements by considering the concept of "ill-gotten wealth" as defined by law64 and by
jurisprudence.65 Given these elements, Cojuangco’s admission as to the source of the funds used
to purchase the SMC shares, by itself, would not make a case for forfeiture of ill-gotten wealth
for the Republic based on its second cause of action (under EO No. 1 and 2). Apart from the
personality of the defendant and the manner of taking, the sources of the funds – the UCPB and
CIIF Oil Mills loans and credit advances – must be established as coming from the "vast
resources of the government" that were taken by "illegal means."
D.1.The nature of the CIIF

Oil Mills credit advances
The determination of whether CIIF Oil Mills advances are public funds does not present a major
hurdle. A simple tracing of the organization and funding of the CIIF Oil Mills to the coconut
levy fund establishes the link that marks the fund as public.
The coconut levy fund is a collective term referring to various funds that came from "levies on
sale of copra or equivalent coconut products exacted for the most part from coconut farmers."
Specifically, the coconut levy fund refers to:
(1) the Coconut Investment Fund (CIF) created under R.A. No. 6260; the Coconut
Consumers Stabilization Fund (CCSF) created under PD 276;
(2) the Coconut Industry Development Fund (CIDF) created under PD 582; and
(3) the Coconut Industry Stabilization Fund (CISF) created under PD 1841.66
The CCSF was created in 1973 and was set up to "subsidize the sale of coconut-based
products at prices set by the Price Control Council."67 On the other hand, the CIDF was
created in 1974 to "finance the establishment, operation, and maintenance of a hybrid
coconut seednut farm x x x (which shall be used for the) nationwide coconut replanting
program."68 Pursuant to PD No. 1468 (which revised PD No. 961 or the Coconut Industry
Code), portions of the CCSF and the CIDF that were not required for the replanting
program and other authorized projects shall be used to "make investments in the form of
shares of stock in corporations organized for the purpose of engaging in the establishment
and operation of industries and commercial activities and other allied business
undertakings relating to the coconut and other palm oil industries."69 The surplus of the
CCSF and the CIDF came to be known as the Coconut Industry Investment Fund or CIIF,
and the corporations in which the CIIF was invested were known as CIIF companies. In
the 1993 Republic v. Sandiganbayan70 declared that —
"x x x coconut levy funds being clearly affected with public interest, it follows that the
corporations formed and organized from those funds, and all assets acquired therefrom, should
also be regarded as clearly affected with public interest."
Since the CIIF Oil Mills and the holding companies were organized/acquired and funded using
the coconut levy funds, it follows that the oil mills and all their assets, including their
investments, are public funds. This is the basic reason underlying the partial judgment on the
CIIF block of SMC shares; the funds used in the purchase of these shares are public so that the
shares purchased rightfully belong to the Republic.
D.2. The nature of the UCPB loans
The same reasoning applies mutatis mutandis with respect to the UCPB which exercised a dual
role in the use of coconut levy funds.
D.2.a. UCPB as administrator of coconut levy funds
In answer to the coconut farmers’ perennial credit problems, the government deemed the
acquisition of a commercial bank to be imperative. On May 17, 1975, the PCA – one of the
government agencies involved in the collection, management, investment, and use of the coconut
levy fund71 – bought the shares of First United Bank (FUB) belonging to Pedro Cojuangco. The
sale of the bank’s shares to PCA was made indirectly, through respondent Eduardo Cojuangco,
since he had the exclusive option to acquire Pedro Cojuangco’s controlling interest in FUB.72
The funds used to purchase the FUB shares were from the CCSF.73 Accordingly, certificates of
stock representing 129,960 shares of FUB were issued on May 30, 197574 "in the name of [PCA]
for the benefit of the coconut farmers of the Philippines.’" FUB subsequently changed its name
to UCPB and amended its Articles of Incorporation in July 1975 to reflect the corporate
changes.75
With the government’s acquisition of UCPB through the PCA using coconut levy funds, all
collections from the imposition of the coconut levies were required to be deposited, interest free,
with UCPB.76 The deposited coconut levy fund was primarily allotted to serve the credit
requirements of the coconut farmers by providing them, upon proper authorization, with credit
facilities at preferential rates.77 Through decrees subsequently promulgated by President Marcos,
UCPB was also given "full power and authority" to invest the surplus of the coconut levy fund,
in acquiring shares of corporations engaged in the coconut and palm oil industries.78 In this
manner, UCPB became not only the depositary, but also the administrator, of the coconut levy
fund. Thus, investments made by UCPB, directly or indirectly, as administrator of the coconut
levy fund became impressed with public character; they were public investments even if made in
the form of a loan to a private entity since they were sourced from a public fund and made
pursuant to a declared national policy. In Republic v. COCOFED,79 we ruled that if the money is
allocated for a special purpose and raised by a special means, it is public in character.
Government funds deposited in a bank remain as government funds; "even assuming that these
become commingled with other funds of the bank, this does not remove the character of the fund
as a credit representing government funds thus deposited."80
D.2.b. UCPB as a commercial bank
While functioning as depositary and administrator of the coconut levy fund, UCPB also
continued to function as a commercial bank one of whose activities is the extension of loans to
clients. Based on its genesis and the purposes it serves, UCPB is not simply a commercial bank;
it is a bank owned and controlled by the government because of the ownership of its shares, the
control that government exercises, and the purposes that it serves;81 it is specifically a
government arm in the banking industry to serve the specific needs of coconut farmers through
the administration of the deposited coco levy funds and by serving as a specialized coconut
farmers’ bank.82 As a government-owned or controlled corporation, UCPB’s assets are
government assets and its funds are subject to audit by the Commission on Audit.83 Thus, the
funds that it lends out are public funds; any private ownership in its corporate structure is
confined to the minority privately-held shares, which do not detract from the character of the
bank as a government-owned and controlled corporation.
E. Were the Loans and Advances

Illegally Obtained?
The corporate relationship of Cojuangco with UCPB and with the CIIF Oil Mills, plus the loan
or advance of funds that are public in character, do not by themselves characterize the property
acquired using the borrowed funds as ill-gotten wealth that should be reconveyed to the
Republic. Both the relationship between Cojuangco, on the one hand, and the bank and the oil
mills, on the other, as well as their transactions with one another, viewed separately, are legally
neutral. It is another matter, however, if they interact because of laws regulating such
interactions. There, too, is the question of whether active irregularities attended these
transactions, although no other illegality is claimed in this case.
A first question to ask is whether Cojuangco as a director and officer of UCPB or as director of
the CIIF Oil Mills can obtain a loan from his principals to purchase the SMC shares.
E.1. A loan or advance to Cojuangco
is not per se ultra vires.
Section 45 of the Corporation Code states:
Section 45. Ultra vires acts of corporations.—No corporation under this Code shall possess or
exercise any corporate powers except those conferred by this Code or by its articles of
incorporation and except such as are necessary or incidental to the exercise of the powers so
conferred.
It should be noted that what is ultra vires or beyond the power of the corporation must also be
ultra vires or beyond the power of its board of directors to undertake. The powers of the board of
directors, who under the law are authorized to exercise the powers of the corporation, are
necessarily limited by restrictions imposed by law on the corporation, as these restrictions are
necessarily imposed also on the board of directors who act in behalf of the corporation.84
As earlier stated, the purpose of UCPB was to provide readily available credit for coconut
farmers. PD No. 755 confirms this purpose when it states:
WHEREAS, in compliance with its prescribed duty, the Philippine Coconut Authority has
ascertained, in response to the appeal of coconut farmers conveyed in a resolution of the Board
of Directors of the Philippine Coconut Producers Federation dated May 17, 1975 that ownership
by the coconut farmers of a commercial bank is a permanent solution to their perennial credit
problems.
xxxx
Section 1. Declaration of National Policy. It is hereby declared that the policy of the State
is to provide readily available credit facilities to the coconut farmers at preferential rates;
that this policy can be expeditiously and efficiently realized by the implementation of the
"Agreement of the Acquisition of a Commercial Bank for the benefit of the Coconut
Farmers" executed by the Philippine Coconut Authority, the terms of which "Agreement"
are hereby incorporated by reference; and that the Philippine Coconut Authority is hereby
authorized to distribute, for free, the shares of stock of the bank it acquired to the coconut
farmers under such rules and regulations it may promulgate.
Section 2. Financial Assistance. To enable the coconut farmers to comply with their
contractual obligations under the aforesaid Agreement, the Philippine Coconut Authority
is hereby directed to draw and utilize the collections under the Coconut Consumers’
Stabilization Fund authorized to be levied by Presidential Decree No. 232, as amended, to
pay for the financial commitments of the coconut farmers under the said agreement and,
except for the budgetary requirements of the Philippine Coconut Authority as approved
by the Governing Board, all collections under the Coconut Consumers’ Stabilization
Fund Levy and fifty percent (50%) of the collections under the Coconut Industry
Development Fund shall be deposited, interest free, with the said bank of the coconut
farmers and such deposits shall not be withdrawn until the Board of Directors of the said
Bank and the Governing Board of the Philippine Coconut Authority shall have jointly
ascertained that the bank has sufficient equity capital to be in a financial position to
service in full the credit requirements of the coconut farmers; xxx
Under these terms, if the Republic had been able to prove that the amount of the loans to
Cojuangco were so substantial that they covered the funds reserved for the use of coconut
farmers, then a case can be made that the grant of the loan was an ultra vires act. What the
Republic claimed in its Memorandum of January 19, 2007 – that it should have been UCPB and
CIIF Oil Mills and not the respondents who should have purchased the subject shares85 - would
also apply. However, if the amount that Cojuangco borrowed consisted of funds that the UCPB
could use for other investments, then no sufficient basis exists under the ultra vires rule to claim
that the loans granted to Cojuangco for the purchase of SMC shares had been contrary to
UCPB’s purpose under PD No. 755. Under this situation, UCPB’s grant of the loan for the
purchase of SMC shares, by itself, would not constitute an ultra vires act, unless the Republic
specifies some other irregularity whose consequence is to make the act ultra vires.
E.2 Breach of Fiduciary Duties
The grant of loans to Cojuangco, who was a director and officer of UCPB at the time that the
shares were purchased, raises propriety questions under Sections 31 and 34 of the Corporation
Code which provide:
Sec. 31 Liability of directors, trustees or officers.—Directors or trustees who willfully and

pecuniary interest in conflict with their duty as such directors or trustees shall be liable jointly
When a director, trustee, or officer attempts to acquire or acquires, in violation of his duty, any
xxx
Section 34. Disloyalty of a director.—Where a director, by virtue of his office, acquires for
himself a business opportunity which should belong to the corporation, thereby obtaining profits
to the prejudice of such corporation, he must account to the latter for all such profits by
refunding the same, unless his act has been ratified by a vote of the stockholders owning or
representing at least two-thirds (2/3) of the outstanding capital stock. This provision shall be
applicable, notwithstanding the fact that the director risked his own funds in the venture.
(Emphasis ours.)
As early as 1929, the Court recognized the rule that directors of a corporation are bound to care
for its property and manage its affairs in good faith. If a violation of these duties results in the
waste of corporate assets or injury to corporate property, the directors, like other trustees, are
liable for the waste or injury. If they perform acts clearly beyond their power, whereby loss
ensues to the corporation, or dispose of its property or pay away its money without authority,
they will be required to pay for the loss out of their private assets.86
Notably, in Palting v. San Jose Petroleum,87 the Court invalidated provisions in the company’s
by-laws that allowed directors and officers of the corporation to do anything with the affairs of
the corporation, even to benefit themselves directly or other persons or entities in which they are
interested; such provisions were considered as contrary to the traditional fiduciary relationship
between the directors and the stockholders of the company.
The directors of a corporation hold positions of trust and as such, they owe a duty of loyalty to
their corporation. In case their interests conflict with those of the corporation, they cannot
sacrifice the latter for their own advantage and benefit. This trust relationship is not a matter of
statutory or technical law; it springs from the fact that directors have the control and guidance of
corporate affairs and property and, hence, of the property and interests of the stockholders.88
In Bailey v. Jacobs,89 the Supreme Court of Pennsylvania held that directors and officers must
act in utmost good faith and cannot deal with the funds and property of the corporation, nor
utilize the influence and advantage of their offices, for any but the common interest. If they make
a personal profit through the use of corporate assets, they must account for it to the stockholders.
It is immaterial that their dealings may not have caused a loss or been harmful to the corporation;
the test of liability is whether they have been unjustly enriched.
On the surface, the present case is similar to Bailey where a director had used so-called advances
from the corporation to purchase stocks of another company. Cojuangco appears to have
betrayed the interests of UCPB when he purchased for himself the SMC shares using UCPB
funds, when the same funds could have been used by UCPB to purchase the said shares for itself
as administrator of the coconut levy funds. Thus, the benefits of the sale of the SMC shares
should accrue to the UCPB. This conclusion, however, can be a rash judgment because the
present case lacks the evidentiary support that Bailey enjoyed; the supporting evidence is not at
all certain – a consequence of the Republic’s failure to proceed to full-blown trial.
In the first place, the Republic failed to present categorical proof that Cojuangco was the UCPB
President and Director in 1983. If a contrary conclusion had been reached by the ponencia at all,
the conclusion was solely based on Cojuangco’s allegation in his answer that he served as a
public officer during the Marcos Administration – a period that covered 14 years counting the
martial law years alone. The ponencia concluded that it was no longer incumbent upon the
Republic to prove that Cojuangco was an officer and member of the governing board of UCPB
because he could have adduced contradictory evidence, but failed to do so.90
This position, in my view, is untenable. As the plaintiff who made the positive allegation that
Cojuangco was a UCPB officer and director in 1983, the Republic has the obligation to prove
this fact. What is baffling, however, about this disputed issue is the fact that the certification of
the UCPB corporate secretary – already in the Republic’s possession and annexed to one of its
pleadings – was not formally presented as evidence. There is nothing in the rules of evidence that
shifts the burden of proof on Cojuangco merely because he made a general statement that he
served as a public officer during the Marcos Administration. More importantly, the Republic did
not even state the amount of the UCPB loan which was used to purchase the SMC shares or how
many of these shares were purchased with the proceeds of the UCPB loan. In contrast with this
apparent discrepancy between the Republic’s factual allegations and supporting evidence, the
plaintiff in Bailey had been able to describe in detail the advances taken by the erring director –
i.e., when they were taken, the details of his purchase and sale of the relevant shares. Without
clarificatory evidence on how much of the UCPB funds were used; and how many shares were
acquired; whether Cojuangco was indeed an officer at the time; and how Board approval was
made — this Court has no basis to award to the Republic all the shares claimed for reversion.
E.3. Violation of single-borrowers

limit and DOSRI rules
At the time the alleged transactions took place in 1983, Sections 23 and 83 of the General
Banking Act, as amended – i.e., the rules on the single borrower’s limit and liabilities of
directors, officers, stockholders (DOSRI) – were already in place. These Sections respectively
state:
Section 23. Except as the Monetary Board may otherwise prescribe, the total liabilities of any
person, company, corporation or firm, to a commercial banking corporation for money borrowed,
excluding (a) loans secured by obligations of the Central Bank or of the Philippine Government;
(b) loans fully guaranteed by the government as to the payment of the principal and interest; (c)
loans to the extent covered by holding out on, or assignment of, deposits; and (d) other loans or
credits which the Monetary Board may, from time to time, specify as non-risk assets, shall at no
time exceed fifteen percent (15%) of the unimpaired capital and surplus of such bank.
The total liabilities of any borrower may amount to a further fifteen (15%) of the unimpaired
capital and surplus of such banking corporation provided the additional liabilities are adequately
secured by shipping documents, warehouse receipts or other similar documents transferring or
securing title covering readily marketable, non-perishable staples, which staples must be fully
covered by insurance, and must have a market value equal to at least one hundred and twenty-
five percent (125%) of such additional liabilities.
xxx
Section 83. No director or officer of any banking institution shall, either directly or indirectly, for
himself or as representative or agent of others, borrow any of the deposits of funds of such bank
nor shall he become a guarantor, indorser, or surety for loans from such bank to others, or in any
manner be an obligor for moneys borrowed from the bank or loaned by it, except with the written
approval of the majority of the directors of the bank, excluding the director concerned. Any such
approval shall be entered upon the records of the corporation and a copy of such entry shall be
transmitted forthwith to the Superintendent of Banks. The office of any director or officer of a
bank who violates the provisions of this section shall immediately become vacant and the
director or officer shall be punished with imprisonment of not less than one year nor more than
ten years and by a fine of not less than one thousand nor more than ten thousand pesos.
The Monetary Board may regulate the amount of credit accommodations that may be extended,
directly or indirectly, by banking institutions to their directors, officers or stockholders.
However, the outstanding credit accommodations which a bank may extend to each of its
stockholders owning two percent (2%) or more of the subscribed capital stock, its directors, or its
officers, shall be limited to an amount equivalent to the respective outstanding deposits and book
value of the paid-in capital contribution in the bank: Provided, however, that loans and advances
to officers in the form of fringe benefits granted in accordance with the rules and regulations as
may be prescribed by Monetary Board shall not be subject to the preceding limitation.
Cojuangco claims exemption from these provisions on the strength of Letter of Instructions No.
(LOI) 926.91 I agree with the ponencia, however, that Cojuangco cannot seek refuge under this
LOI, since the exemption covers only the borrowings of participating oil mills and private
corporations organized to serve as instruments to pool and coordinate the resources of the
coconut farmers and oil millers, not those of individuals such as Cojuangco or the respondent
corporations who acted as nominal stockholders. LOI 926, too, required the loans to be used to
finance capital expenditures, not investments in shares of stock.
Despite this view, however, I disagree that the Republic successfully established that these
provisions were violated or that these laws can be the basis for the return of the SMC shares. To
reiterate, the Republic has neither stated nor proved the amount of the UCPB loans taken to
purchase the SMC shares or the unimpaired capital or the surplus of UCPB; it utterly failed to
support the details of whatever loans had been taken with sufficient evidence. Thus, the Court
cannot declare that the 15% limitation under the single borrower’s limit was breached. Similarly,
there can be no violation of the DOSRI rules where the manner under which the loan was taken
was not alleged; the Republic failed to prove whether or not the UCPB board of directors
approved the loans in question.
F. Close Association with President Marcos
A close examination of the records fails to reveal any specific allegation, much less proof, that
Cojuangco amassed ill-gotten SMC shares because he is a relative or was a close associate of the
late President Ferdinand Marcos. While the media may be replete with stories of Cojuangco’s
close relationship with President Marcos and his family, these stories are not evidence unless
testified to by a competent witness or are materials that can be subject of judicial notice. At the
most, what appears in the offered evidence in this case are admissions by Cojuangco of the
positions he assumed in government, specifically at the PCA and at the UCPB. The Republic’s
Reply dated October 2, 2003, too, contained attached documents indicating the positions he
assumed at the UCPB and its allied companies and in the CIIF oil mills or its holding companies.
These documents, however, were never marked as exhibits and offered as evidence. Even if they
had been so marked and offered, however, these may not suffice to prove "close association"
under the standards of the jurisprudence on this point – not every senior official of the Marcos
government falls under the category of a "close associate";92 proof of this type of association has
to be adduced. Again, the Republic failed on this point.
G. Conclusions
Based on the above considerations, I would agree with Justice Bersamin that the Republic had
failed to preponderantly establish its claim. The Republic has taken a significant step in proving
a claim for reversion of ill-gotten wealth against Cojuangco, but simply failed to make a
complete case leading to that conclusion.
Despite this conclusion, I do not agree that the Court should simply dismiss the petition and
affirm the Sandiganbayan’s decision. This decision – while seemingly correct on the basis of the
evidence presented and recognized – cannot and should not be allowed to bind the Republic in
light of the massive violation of its right to due process through the fatal omissions that the
Republic’s counsels made in handling the case. In the absence of any clear evidence pointing to a
criminal act under the Anti-Graft and Corrupt Practices Act or Republic Act (RA) No. 3019, the
counsels mishandling of the case should be held responsible for gross negligence. Thus, un
urgent point to consider in the review of the records of this case and of the proceedings before
the Sandiganbayan is whether the Republic’s counsels substantially fulfilled their duty to handle
the Republic’s case competently and responsibly. As heretofore discussed, at stake are not only
the substantial SMC shares involved but the integrity of government processes and its political
will in addressing claimed abuses under the martial law regime.
III. THE REPUBLIC’S CASE

AND ITS IMPROPER HANDLING
The ponencia justifies its decision to award the subject shares to the petitioner under RA No.
137993 and EO No. 1, in relation with EO Nos. 2, 14 and 14-A.
While the Republic alleged its causes of action for violations of RA No. 1379 and EO No. 1 in
its complaint, it failed to pursue these causes of action and present supporting evidence during
the course of the proceedings before the Sandiganbayan. The Republic’s ultimately ended up
with the charge relating to Cojuangco’s loans with UCPB. Even at that, it refused to go to trial; it
submitted its case on the basis of an offer of evidence consisting of materials that need not even
be offered because they are part of the records or are matters appropriate for judicial notice.
To reiterate for emphasis what have heretofore been pointed out, (1) a cause of action duly
pleaded was simply abandoned and completely forgotten; (2) materials proposed to be presented
as evidence in the pre-trial brief or which were already mentioned in the pleadings were never
introduced as evidence; (3) public documents available in governments records do not appear to
have been considered; (4) likewise the availability of compulsory processes to compel the
attendance of witnesses or the production of records were hardly availed of; (5) clear signals and
warnings from the Sandiganbayan and even from the respondents went unheeded or unnoticed;
(6) counsels patently exhibited lack of preparation, causing delays at the instance of the
Republic; (7) the evidence offered were not evidence at all but were to confined to pleadings
already on record, and laws and Supreme Court decisions that can be cited without need of
offering them as evidence; and finally, (8) counsels simply refused to go to trial despite an
incomplete case. These are acts or omissions in the handling of the case that cannot be labeled as
criminal for lack of clear evidence of the intent to place the government at a disadvantage and of
the active motivation that drove this intent, but they can, at the very least, be labeled as gross
negligence in the handling of the case, resulting at the Sandiganbayan level, in the denial of a fair
opportunity for the government to present a case with a fair chance of achieving the recovery it
sought.
A. Abandonment of, or Negligence in Pursuing,

Forfeiture Action under RA No. 1379
Sections 2 and 6 of RA No. 1379 authorize the recovery by the government of unlawfully
acquired properties of public officers or employees:
Section 2. Filing of petition. Whenever any public officer or employee has acquired during his
incumbency an amount of property which is manifestly out of proportion to his salary as such
public officer or employee and to his other lawful income and the income from legitimately
acquired property, said property shall be presumed prima facie to have been unlawfully acquired.
The Solicitor General, upon complaint by any taxpayer to the city or provincial fiscal who shall
conduct a previous inquiry similar to preliminary investigations in criminal cases and shall
certify to the Solicitor General that there is reasonable ground to believe that there has been
committed a violation of this Act and the respondent is probably guilty thereof, shall file, in the
name and on behalf of the Republic of the Philippines, in the Court of First Instance of the city or
province where said public officer or employee resides or holds office, a petition for a writ
commanding said officer or employee to show cause why the property aforesaid, or any part
thereof, should not be declared property of the State: Provided, That no such petition shall be
filed within one year before any general election or within three months before any special
election.
xxx
Section 6. Judgment – If the respondent is unable to show to the satisfaction of the court that he
has lawfully acquired the property in question, then the court shall declare such property in
question, forfeited in favor of the State, and by virtue of such judgment the property aforesaid
shall become the property of the State. Provided, That no judgment shall be rendered within six
months before any general election or within three months before any special election. The Court
may, in addition, refer this case to the corresponding Executive Department for administrative or
criminal action, or both. (Emphasis ours)
Under these provisions, resort to a RA No. 1379 forfeiture action is appropriate if a subject and
an object exist under the terms of this law. Specifically, there must be:
(1) A subject or a public officer or employee, who is any person holding any public office
or employment by virtue of an appointment, election or contract, and any person holding
any office or employment, by appointment or contract, in any State owned or controlled
corporation or enterprise;
(2) An object which refers to the properties acquired by the public officer during his
incumbency which are manifestly out of proportion to his salary as officer and to his
other lawful income and the income from legitimately acquired properties.
Procedurally, Section 2 of RA No. 1379, as amended, requires a prior inquiry similar to a

preliminary investigation in criminal cases to be made by the Ombudsman before a forfeiture
proceeding can be initiated before the Court by the Solicitor General. 94
In the present case, no prior inquiry appeared to have been conducted. Thus, Cojuangco raised
this defense in his Answer, together with the time bar in bringing the complaint because of its
proximity to an election. Thereafter, the Republic simply disregarded its RA No. 1379 cause of
action and does not appear to have ever undertaken any corrective action to continue to address
the lapses that Cojuangco noted in his Answer.
Save for the noted lapses, however, a forfeiture action under RA No. 1379, was a very promising
opportunity for government to achieve the reversion that it sought. All that is required for this
kind of action is to show the concurrence of the following elements:
(1) the offender is a public officer or employee;
(2) he acquired a considerable amount of money or property during his incumbency; and
(3) the amount is manifestly out of proportion to his salary as such public officer or
employer and to his other lawful income and the income from legitimately acquired
property.
Notably in this regard, the Republic’s Pre-Trial Brief95 already mentioned the following
documentary evidence:
(1) the COA reports (which the Sandiganbayan, however, expressly rejected in its
extended Pre-Trial Order);96
(2) Cojuangco’s Statements of Assets and Liabilities (SAL) for the years 1973, 1976,
1978, and 1982 ;97 and
(3) a Summation Analysis of the Wealth and Income of Cojuangco.98
These were good starting points for a RA No. 1379 action as many other documentary evidence
proving the elements of a forfeiture action are public documents that were already with, or could
then easily be accessed by, the Republic. Notably, the Republic had in its possession proof that
Cojuangco was a public officer and an admission that he was the beneficial owner of the shares.
It would also seem that the PCGG had access to the SAL that Cojuangco filed during his
incumbency and could have accessed other relevant documents through compulsory process.
With these documentary evidence on hand or within reach, the Republic chose to actively pursue
another cause of action – breach of fiduciary duties of a director, but likewise failed to present
crucial evidence therefor, particularly the loan documents evidencing the loans that Cojuangco
wrongfully obtained as director. Interestingly, even the above-listed documents were not among
those offered as evidence through the Republic's Manifestation of Purpose. Notably missing, too,
were Cojuangco’s SAL for the year 1983 (the year when he acquired the disputed SMC shares)
and the testimony of those who prepared the COA reports (after the Sandiganbayan belittled the
probative value of the COA reports in its denial of the motion for summary judgment), separately
from the RA 1379 cause of action, these could have been useful evidence to establish the misuse
of the coconut levy funds and establish the damage to the Republic through proof of Cojuangco’s
unjust enrichment.
B. Gross Negligence in Pursuing

Recovery Action under EO No. 1
EO No. 1, in relation with EO Nos. 2, 14 and 14-A, is another law that authorizes the
government to recover ill-gotten wealth. A recovery action under EO No. 1 requires
(1) a subject defendant, which refers to the former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates.
(2) an object or the ill-gotten wealth, which refers to assets and properties (in the form of
bank accounts, deposits, trust accounts, shares of stocks, buildings, shopping centers,
condominium, mansions, residences, estates, and other kinds of real and personal
properties in the Philippines and in various countries) belonging to the defendants. This
can include business enterprises and associations owned or controlled by the defendants,
during the Marcos administration, directly or through nominees;
(3) the mode of acquisition, through which the ill-gotten wealth was acquired, directly or
indirectly,
(a) through or as a result of the improper or illegal use of or conversion of funds

or properties owned by the Government of the Philippines or any of its branches,
instrumentalities, enterprises, banks or financial institutions, or
(b) by taking undue advantage of their office, authority, influence, connections or

relationship.
(4) prejudice to the government, as the act/s of the defendant/s result in their unjust
enrichment and causing grave damage to the Filipino people and the Republic of the
Philippines.
RA No. 1379 and EO No. 1 differ in two respects: (1) in the subjects or the persons covered, and
(2) in the object sought to be forfeited or recovered. While RA No. 1379 broadly covers all
public officers, EO No. 1 is confined to President Marcos, his immediate family, relatives,
subordinates and close associates. Unlike EO No. 1, RA No. 1379 is not concerned with the
manner of acquisition of the unlawfully acquired property. Despite these differences, both laws
provide basis for the recovery or forfeiture of properties that rightfully belong to the State.
A reading of the complaint shows that the Republic’s action for recovery under EO No. 1 of the
Cojuangco block of SMC shares was premised on Cojuangco’s act of supposedly taking undue
advantage of official position or authority, resulting in his unjust enrichment and grave damage
and prejudice to the State. Thus, it was crucial for the Republic to prove that, at the time the
subject shares were acquired, Cojuangco occupied an official position.
While Cojuangco admitted that he (a) served as PCA Director and as President and Director of
the UCPB; (b) acquired the SMC shares in 1983 and (c) used proceeds of loans and advances
from UCPB and the CIIF Oil Mills, the Republic’s submitted evidence and Cojuangco’s
admissions did not sufficiently prove that the details that EO No. 1 required, specifically, the
period of Cojuangco’s service as a public officer; the details of the loans and advances secured;
whether and how much of these loans and advances funded the purchase of SMC shares; the
details of the purchases made, when, by whom, for how much; the unjust enrichment on the part
of Cojuangco and the prejudice to the government, in the manner done in Bailey.99
All these omissions cannot but be evidentiary gaps resulting from the counsel’s gross
negligence that should preclude the Court from entering a judgment of forfeiture in favor
of the government.
C. Judicial Warnings on the

Completeness of the Petitioner’s Case
At the scheduled pre-trial conference on May 24, 2000, the Sandiganbayan apparently
forewarned the Republic that the court "has not been adequately enlightened as to the basis for
[its] claims"100 in its Third Amended Complaint in Civil Case No. 0033-F. Pertinently, the
Sandiganbayan held:
The Court has remonstrated with the plaintiff, insofar as its adequacy is concerned, xxx It
appears to this Court at this time that the failure of the plaintiff to have available responses and
specific data and documents at this stage xxx arises from the fact that at this very stage, the
plaintiff through its counsel does not know what these documents are, where these documents
will be and is still anticipating a submission or a delivery thereof by COA at an undetermined
time. xxx
xxx the Court is given a very clear impression that the plaintiff does not know what documents
will be or whether they are even available to prove the causes of action in the complaint.101
[Emphasis ours]
As the developments in the case showed, the Republic’s counsel did not heed these strong words
from the Sandiganbayan and persisted in its irresponsible ways.
Before the date of trial was set, the Republic successively moved for judgment on the pleadings
and/or partial summary judgment concerning (i) the CIIF block of shares on July 26, 2002,102
and (ii) the Cojuangco block of shares on July 11, 2003.103 While the Sandiganbayan granted the
Republic’s motion on May 7, 2004 with respect to the CIIF block of shares and ordered their
reconveyance in favor of the government,104 the Sandiganbayan denied the Republic’s motion
with respect to the Cojuangco block of shares on the ground that there were "genuine factual
issues" that needed to be tried. The Sandiganbayan in fact cited all the matters it considered
(quoted at page 13 hereof) disputed, referring specifically to the sources of funds, nature of the
sources, the details of the positions Cojuangco occupied in government, and details about
Cojuangco’s abuse of position and close association with President Marcos. The Sandiganbayan
even reminded the Republic about its view that -
We cannot agree with the plaintiff’s contention that the defendants’ statements in his Pre-Trial
positions to acquire the subject SMC shares.105
When trial was finally conducted more than four months after the Sandiganbayan set the case for
trial,106 the Republic inexplicably chose not to present testimonial evidence, despite the
numerous witnesses and documents it proposed to present in its Pre-Trial Brief and the clear
warnings the Sandiganbayan had aired. Instead, the Republic filed a Manifestation of Purpose
and asked for the marking of certain exhibits, which it asked the Sandiganbayan to take judicial
notice of107 and which the Sandiganbayan chose to regard as the Republic’s offer of evidence.
These exhibits consisted of four pleadings, which were already part of the records, three laws
and two Supreme Court decisions. In effect, the Republic presented as evidence documents that
did not even have to be formally offered because they would have been admissible under judicial
admissions and judicial notice.
What the Republic offered as evidence appears noticeably irregular, when compared with the
evidence already in its possession as reflected in its pre-trial brief, specifically: (1) the
Secretary’s Certificate of UCPB and CIIF Oil Mills stating that Cojuangco was an officer and
director of these entities in 1983; (2) Affidavits, Blank Declarations of Trust, and Voting Trust
Agreements executed by the directors of the respondent corporations disclosing, for all intents
and purposes, that they merely held the subject shares for Cojuangco; (3) Cojuangco’s Statement
of Assets and Liabilities (SAL) for the years 1973, 1975, 1978 and 1982. The Summation
Analysis of Wealth and Income, a report prepared by PCGG and a part of the annexes of the
Republic’s Pre-Trial Brief, implies that the PCGG had records of Cojuangco’s SAL from 1967
to 1985. Additionally, the COA’s report on UCPB, dated 1986, referred to the financial
statements of UCPB, which could have helped to determine whether or not the loans extended to
Cojuangco violated the DOSRI or the single borrower’s limit.
Another extreme irregularity was the Republic’s failure to produce and offer the loan
documents as evidence, given that the Republic’s claim is dependent on the theory that the SMC
shares were acquired with UCPB loans. These documents would have definitely established the
dates the loans were granted, the amounts and terms of the loans, and even the approving
authorities who participated in the grant of the loan. In 1986, the Republic had control of the
UCPB and would have had access to these loan agreements. If the loan documents could no
longer be found, other documents such as the financial statements and the reports to the Central
Bank would have referred to the loan transactions which might have amounted to at least $49
million, if the Republic’s Third Amended Complaint were to be believed. If the loan documents
had been lost, a manifestation in the Sandiganbayan would have been proper, as well as a
demand for the respondents to produce loan documents, given that they had admitted to the loan
transactions. Instead, the records are jarringly silent about these loan documents. What is true for
the UCPB loan documents applies as well to advances from the CIIF Oil Mills which could not
have been simply drawn without supporting documentation.
Lastly, it must be pointed out that the Republic was not definite in identifying the number of
shares that it sought to claim. The Third Amended Complaint refers to 16,276,545 shares;
Cojuangco’s Pre-Trial Brief refers to an Annex "B" showing that there were 20,693,980 shares;
and the Republic’s Pre-Trial Brief refers to 27,198,545 shares. The records are likewise devoid
of any details relating to the acquisition of the SMC shares; the Republic failed to allege, much
less prove, their acquisition cost or even their acquisition dates, and when the purported stock
splits occurred or the stock dividends were distributed. These failures happened despite the clear
suggestions from respondent’s counsel – Atty. Estelito Mendoza – that while loans were secured,
the details of the grant of the loans were not admitted.108 The Republic could have easily asked
for the subpoena of the stock transfer books or other pertinent records of SMC, but chose not to
do so.
To summarize, the records of the proceedings before the Sandiganbayan show that the Republic
had not presented relevant evidence within its possession and crucial evidence that it could have
obtained. It also neglected to pursue a cause of action that it could have proven or take corrective
action to continue to pursue this cause of action. The stubborn refusal of the Republic despite the
warnings of the Sandiganbayan during pre-trial and thereafter, cannot be considered as anything
but gross negligence. The question of whether the government’s counsel can so prejudice the
government’s claim for recovery of valuable assets through the gross negligence of its counsel
must be addressed by this Court as a measure to secure a full determination and closure of this
case.
IV. NEGLIGENCE AND

DUE PROCESS CONSIDERATIONS
A. Gross Negligence of Counsel and its Effects
That negligence of counsel binds the client is a strong and settled rule in jurisprudence. This is
based on the rule that any act performed by a counsel within the scope of his general or implied
authority is regarded as an act of his client. Consequently, the mistake or negligence of counsel
may result in the rendition of an unfavorable judgment against the client.109 The reason for this
rule is to avoid the foreseeable tendency of every losing party to raise the negligence of his or her
counsel to escape an adverse decision; experience shows that very few graciously accept a losing
verdict and parties would go to great lengths and seize every opportunity to avoid a loss,
although the attempt at evasion is to the detriment of justice and our justice system.110
It is equally settled, too, with the same strength and emphasis that once the rule on mistake or
negligence of counsel deserts its proper office as an aid to justice, and on the contrary becomes a
hindrance and its chief enemy, the rigors of the rule must be relaxed to admit of exceptions and
thereby prevent a miscarriage of justice. In other words, the Court has the power to consider a
particular case an exception to the operation of the negligence of counsel rule whenever the
purposes of justice require it. What should guide judicial action as a norm is that a party should
be given the fullest opportunity to establish the merits of his action or defense, rather than allow
him to lose life, honor or property because of technicalities or acts or omissions that denied him
of his day in court.
Thus, the rule that the negligence of counsel binds the client admits of exceptions. The
recognized exceptions are: (1) where reckless or gross negligence of counsel deprives the client
of due process of law, (2) when its application will result in outright deprivation of the client's
liberty or property or (3) where the interests of justice so require. In such cases, courts must step
in and accord relief to a party-litigant.111
Gross negligence has been defined as the want or absence of or failure to exercise slight care or
diligence, or the entire absence of care. It is the thoughtless disregard of consequences without
exerting any effort to avoid them.112
In this case, the omissions of Republic's counsel in handling its case has heretofore been
itemized and discussed and need not be mentioned again. Suffice it to say that its failure to
present evidence it had in its possession and those that it could have easily availed of, considered
alone, already amounted to an abandonment or total disregard of its case. They show conscious
indifference to or utter disregard of the possible adverse repercussions to the client. Such chronic
inaction was present in this case when the Republic's counsel exhibited it as early as the pre-trial,
at its motion for summary judgment where no less than the Sandiganbayan commented on the
state of the counsel’s preparation, and in the all-important presentation of evidence stage when
counsel, without much thought, marked as evidence materials that need not even be marked and
offered as evidence, and thereafter refused to go to trial. These acts cannot but constitute gross
negligence.113
In Government Service Insurance System (GSIS) v. Bengson Commercial Buildings,114 the

Court pointed out that a pattern of fraud is evident when GSIS’s counsel opted not to present
evidence to contradict the plaintiff’s evidence. Additionally, its abandonment of a cause of action
without any apparent reason signifies the counsel’s unbecoming disregard for the outcome of the
case.
The uniqueness of the negligence in this case lies in the patent ineptitude that counsel for the
Republic committed, as it passively allowed the government to be stripped of its interests in
valuable assets claimed to be ill gotten wealth. The glaring errors of the counsel for the Republic
were not minor errors in the exercise of discretion; the voluminous records of this case are
replete with instances when counsel’s attention was called concerning gaps in its case and its
evidence, both by the Sandiganbayan and by the respondents. The Sandiganbayan even noted the
apparent ignorance of the Republic’s counsel regarding the case that it handled — its inability,
despite the lapse of a substantial length of time, to respond to the questions of the Sandiganbayan
and to identify the documents that it would present. These warnings alone should serve as a
gauge to the Court of how egregious the negligence had been.
The party aggrieved in this case, it must be remembered, is not an ordinary client; it is the
Republic of the Philippines. Unlike other parties who may cry out and insist on changing an
incompetent counsel in order to protect its claims, the Republic cannot as easily do so. It is
bound by law to rely on the skill, honesty, and diligence of the agency assigned to represent it.
Under these circumstances, it becomes the duty of the Court to ensure that the Republic is not
prejudiced by a grossly incompetent or negligent counsel and is not thereby cheated out of its
proper claims. For this Court to gloss over this incompetence, negligence, apathy and unconcern,
and not to act on what clearly appears to be an aberrant situation, would simply run counter to its
duty to uphold justice. If the incompetence, ignorance or inexperience of counsel is so great and
his errors are so serious that the client who otherwise has a good cause, is prejudiced and denied
his day in court, the litigation may be reopened to give the client another chance to present his
case.115
The fundamental purpose of procedural rules is to afford each litigant every opportunity to
present evidence in their behalf in order that substantial justice is achieved. Court litigations are
primarily for the search of truth, and a liberal interpretation of the rules by which both parties are
given the fullest opportunity to adduce proofs is the best way to ferret out such truth.116 While we
cannot but find in this case that the Republic presented insufficient evidence to support its claim,
we also find in the records pieces of evidence indicating that there is much more to the
Republic’s claim than was presented by the Republic’s counsel.
While the Republic as a litigant should be bound by the mistake or negligence of its counsel, this
should not be our conclusion in this case where the negligence, from every perspective, is gross
and has effectively deprived the Republic of its day in court.
As a last word on this point, our jurisprudence teaches us that the State is never estopped from
questioning the acts of its officials, if they are erroneous,117 and more so if they are irregular.
Such acts involve plain bureaucratic venality which leaves large and easily identifiable traces of
neglect of duty. In Republic v. Aquino,118 we applied this principle to the failure of the
government to oppose an application for land registration. In Sharp International Marketing v.
Court of Appeals,119 we held that the government is not bound by a highly irregular contract
entered into by a former Secretary. We also declared, in Heirs of Reyes v. Republic,120 that even
if the Office of the Solicitor General failed to question a patently unconstitutional compromise
agreement between the Director of Lands and Forest Development with private individuals, the
government cannot be bound by it; we branded the acts of the government agent as a "blatant
abandonment of their [duties]" and a display of their "gross incompetence."
B. The Demands of Due Process
Traditionally, the due process clause is invoked to prevent governmental encroachment against
life, liberty, and property of individuals; to secure the individual from the arbitrary exercise of
the powers of the government; to protect property from confiscation by legislative enactments,
from seizure, forfeiture, and destruction without holding a trial and conviction by the ordinary
mode of judicial procedure; and to secure to all persons equal and impartial justice and the
benefit of the general law.121 The clause came into being as a limit to the government’s inherent
police power, not primarily to protect the interests of government whose power to protect itself is
primary, overriding and inherent.
In this case, the government comes before this Court, not as a sovereign, but as an ordinary
litigant. The government seeks to recover what it claims to be property that should belong to the
Filipino people, particularly to the coconut farmers, and to redress what it claims to be abuses
committed during an unusual period in the country’s history – the martial law years. That the
recovery and redress are important government interests is evident from the extraordinary steps
that the government has already taken pursuant to its inherent sovereign powers to address the
aftermath of the martial law years; pursuant to its police power, the government has allowed the
seizure and sequestration of wealth prima facie found to be ill-gotten during the martial law
years, so that these properties can be preserved for appropriate judicial process.
In this judicial process, the government yields its character as sovereign and operates under equal
terms with the owners of sequestered properties; it submits itself to the same rights and
opportunities that every other litigant enjoys in a court case. The most basic of these rights is the
right to due process – the right to be heard and to be given the opportunity to present and defend
one’s cause.
As these discussions show, the Sandiganbayan denied the government’s claim for recovery, not
because the government did not have any right under the law to recover ill-gotten wealth. The
government lost because of the acts of its counsel that amounted to no less than giving the
claim away through omission, inaction or precipitate and ill-considered action that, at the
very least, should be considered gross negligence of counsel in handling the government’s
case. Under these circumstances, the government – like, any other litigant – should be allowed to
invoke the same due process right that individuals invoke to secure an equal and impartial justice
under the law.
The requirements of due process are satisfied if the following conditions are present: (1) there is
a court or tribunal clothed with judicial power to hear and determine the matter before it; (2)
jurisdiction is lawfully acquired over the person of the defendant or over the property which is
the subject of the proceedings; (3) the defendant is given an opportunity to be heard; and (4)
judgment is rendered upon a lawful hearing.122 Substantively, what underlies due process is the
rule of reason; it is a rule against arbitrariness and injustice measured under the standards of
reason.123 Procedurally, the fundamental requirement of due process involves the opportunity to
be heard at a meaningful time and in a meaningful manner.124 Whether in the substantive or in
the procedural signification, due process must comport with the deepest notions of what is fair
and right and just.1251awph!1
On a superficial consideration, the proceedings before the Sandiganbayan appear to have

complied with all that due process demands in a judicial proceeding. The Sandiganbayan granted
the government the opportunity to be heard and was not remiss in reminding the Republic’s
counsel of its view of the status of the government’s case. That counsel chose to formally offer
as evidence documents that were already on record or subject to judicial notice, and that it
miserably failed to support its stated claims, do not appear to be a violation of the requirements
of procedural due process. However, the right to due process in our legal system does not merely
rely on technical and pedantic application of procedural formalities; it involves as well the
consideration of the substance of the affected underlying rights whose denial under unreasonable
circumstances is equivalent to the loss of day in court that is entitled to redress and correction to
afford justice to all.126
The denial, as it transpired in this case, is unique but is not any less a basic and inherent
unfairness. The Court is now faced with a situation where the conclusions of the Sandiganbayan
are valid, based on the evidence formally offered, but are contradicted by existing evidence that
counsel chose not to offer and evidence that, by omission, it chose not to explore. Effectively, it
is a situation of abandonment by the Republic’s counsel of causes of action that it could have
successfully proven, and the loss by government of a real opportunity to be heard, especially
after its counsel opted not to pursue its remedies under RA No. 1379 and after it obstinately
refused to present the most basic documents to prove its claim under EO No. 1 despite the dire
warnings of the Sandiganbayan. The Court stands to participate in this unfairness and injustice if
it stands idly and let the government be deprived of valuable assets, or the chance to prove its
interest in these assets, knowing fully well the gross incompetence and negligence of its counsel
that brought on the injustice.
If the Court is convinced that gross injustice transpired brought on by the failure on the part of
the Republic to present its case due to the gross negligence of its counsel, an outright dismissal
of the present petition would not comply with the due process requirements enshrined in our
Constitution. Let it be noted that the Republic’s case is not totally without merit. Records are
replete with indications that a meritorious case can be made out for the recovery sought if only
the Republic can have its day in court. Under these circumstances, the Court’s remedy can be no
less than a continuation of the proceedings of this case through its remand of the case for a full-
blown trial on the merits in proceedings that accord the government a real chance to present all
of its evidence.
To be sure, the Court is not wanting in authority to impose this remedy; it is a well-established
and accepted doctrine that rules of procedure may be modified at any time to become effective at
once, so long as the change does not affect vested rights.127 In short, this Court can adapt the
rules of procedure, as its response to the duty and obligation to act in the higher interests of
justice.
In its Third Amended Complaint, the Republic included in its prayer "such further relief as may
appear to the Honorable Court to be just and equitable under the premises."128 This Court has
always been disposed to grant equitable relief to parties aggrieved by perfidy, fraud, reckless
inattention and the downright incompetence of lawyers whose consequence is the deprivation of
their clients’ day in court.129 Following this lead, a remand of the case to the Sandiganbayan for
further hearing on the evidence of both parties is only proper. The remand would permit the
Republic to properly present its case in accordance with the dictates of due process, and the
courts to decide this important case based on real evidence and not merely by the omissions on
the part of the Republic’s counsel.
To reiterate what is at stake is not only public property of significant value may be involved, this
case also marks a crucial step in our people’s quest for integrity and accountability in our public
officers. The sheer importance of this case to our nation requires that the case be remanded to the
Sandiganbayan for hearing so that the petitioner, the Republic of the Philippines, may be
afforded its proper day in court through competent counsels whose integrity are beyond question.
ARTURO D. BRION
Associate Justice
Footnotes
1
Rollo (G.R. No. 180702), Volume I, p. 80.
2
Id., Volume II, pp. 516-538.
3
Id. at 527-528.
4
Id. at 528-531.
5
Sandiganbayan Records, Volume 12, pp. 469-533.
6
Rollo (G.R. No. 108702), Volume I, pp.139-167.
7
Rollo (G.R. No. 180702), Volume II, pp. 528-531.
8
Id. at 533-537.
9
Id. at 591-609.
10
Id. at 606-609, 621-623.
11
Id. at 626-641.
12
Id. at 633.
13
Id. at 635-636.
14
15
16
Maria Clara L. Lobregat, Jose R. Eleazar, Jr., Domingo Espina, Jose Gomez, Celestino
Sabate, Manuel del Rosario, Jose Martinez, Jr., and Eladio Chatto.
17
Sandiganbayan Records, Volume 9, pp. 344-380, 394-417.
18
19
Id., Volume 12, p. 495.
20
Id. at 522.
21
Id., Volume 11, pp. 504-508.
22
Sandiganbayan Records, Volume 12, p. 78.
23
Id., Volume 12, pp. 469-533.
24
25
Section 2. The Commission on Audit shall have the following powers and functions:
1. Examine, audit, and settle, in accordance with law and regulations, all accounts
pertaining to the revenues and receipts of, and expenditures or uses of funds and
property, owned or held in trust by, or pertaining to, to the Government, or any of
its subdivisions, agencies, or instrumentalities, including government-owned and
controlled corporations; keep the general accounts of the government and, for
such period as may be provided by law, preserve the vouchers pertaining thereto;
and promulgate accounting and auditing rules and regulations including those for
the prevention of irregular, unnecessary, excessive or extravagant expenditures or
use of funds and property.
26
Article IX-D Section 2(1) of the 1987 Constitution reads:
The Commission on Audit shall have the power, authority, and duty to examine,
audit, and settle all accounts pertaining to the revenue and receipts of, and
expenditures or uses of funds and property, owned or held in trust by, or
pertaining to, the Government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations with
original charters, and on a post- audit basis: (a) constitutional bodies,
commissions and offices that have been granted fiscal autonomy under this
Constitution; (b) autonomous state colleges and universities; (c) other
government-owned or controlled corporations and their subsidiaries; and (d) such
non-governmental entities receiving subsidy or equity, directly or indirectly, from
or through the Government, which are required by law or the granting institution
to submit to such audit as a condition of subsidy or equity. However, where the
internal control system of the audited agencies is inadequate, the Commission
may adopt such measures, including temporary or special pre-audit, as are
necessary and appropriate to correct the deficiencies. It shall keep the general
accounts of the Government and, for such period as may be provided by law,
preserve the vouchers and other supporting papers pertaining thereto.
27
G.R. Nos. 147062-64, December 14, 2001, 372 SCRA 462. The Court held that
coconut levy funds are not only affected with public interest but are prima facie public
funds.
28
29
Rollo (G.R. No 180702) Volume II, pp. 642-684.
30
Dated August 14, 2003, id. at 685-738.
31
Id. at 722-724.
32
Southern Luzon Coconut Oil Mills (SOLCOM), Cagayan de Oro Oil Co., Inc
(CAGAOIL), Iligan Coconut Industries Inc. (ILICOCO), San Pablo Manufacturing
Corporation (SPMC), Granexport Manufacturing Corporation (GRANEX) and Legaspi
Oil Co., Inc. (LEGOIL), id. at 772.
33
Id. at 808-819.
34
Rollo (G.R. No. 169203), pp. 360-361. The transcript of the proceedings read:
JUSTICE VIILLARUZ:
The question of Mr. Mendoza is, are you disputing the fact that the shares were
acquired from loans?
ASG DEL ROSARIO
No. We are not disputing that, Your Honor.
JUSTICE VILLARUZ
Makes the shares ill-gotten?
ASG DEL ROSARIO
Yes, Your Honor. The shares are ill-gotten despite the fact that loans were used.
So that is a conclusion which the Court may make from the undisputed facts.
JUSTICE VILLARUZ
You mean to say that even if the loans were not sourced from UCPB, you would
still say that the shares are ill-gotten?
ASG DEL ROSARIO

No, Your Honor. It is ill gotten precisely because it was sourced from the UCPB.
JUSTICE VILLARUZ
You are begging the question. The Court is asking, if the shares were acquired
from loans other than UCPB, would you say that the shares are ill gotten?
ASG DEL ROSARIO
No more, Your Honor, unless the source would be from a CIIF Oil Mills fund or
other coco levy fund, Your Honor.
JUSTICE VIILLARUZ
But it is your contention that the shares may have been acquired from proceeds of
loan from UCPB and the shares ergo are ill gotten, is it not?
ASG DEL ROSARIO
Yes, Your Honor.

35
Id. at 365. In the transcript of the notes taken during the hearing held on October 21,
2003 before the Sandiganbayan, the respondents’ counsel Atty. Estelito Mendoza stated:
We are fortunate and gratified that plaintiff makes it clear now that their cause of
action is based solely based on their cause of action that these shares are ill-gotten
wealth based solely on their assertion that the funds used to pay for the shares
were borrowed from the United Coconut Planters Bank. We are saying some of
the funds but not all of the funds, full stop. (Emphasis ours.)
36
Rollo (G.R. No. 180702) Volume II, pp. 821-835.
37
Id. at 831-832.
38
Id. at 833.
39
40
Sandiganbayan Records, Volume 17, pp. 130-A – 130-B.
41
Id. at 199-211.
42
Id. at 249.
43
Rollo (G.R. No. 180702), Volume 1, pp. 78-131.
44
Equivalent to P539 million, based on the June 23, 1983 currency exchange rate of
P11.00 per US$ 1.00, International Economics: Historical Exchange Rate Regime of
Asian Countries, at http://intl.econ.cuhk.hk/exchange_rate_regime/index.php?cid=1, last
visited April 7, 2011.
45
Artemio Panganiban, Danding wins San Miguel but losses Cocobank, With Due
Respect, Philippine Daily Inquirer, December 12, 2007, at
http://opinion.inquirer.net/inquireropinion/columns/view/20071209-
105737/Danding_wins_San_Miguel_but_losses_Cocobank, last visited April 6, 2011.
46
Rey Eñano, San Miguel’s Cojuangco waiting for the right price, Manila Standard
Today, December 2, 2010, at
http://www.manilastandardtoday.com/insideBusop.htm?f=2010/december/2/reyenano.isx
&d=2010/december/2, last visited April 6, 2011.
47
Based on SMC Class A common share closing price of P171.4 on April 7, 2011,
Philippine Star.
48
Based on the April 7, 2011 currency exchange rate of P 45.43 per USD 1.00.
49
Ibid.
50
The national budget for fiscal year 1982 was P57,091,994,000.00; data for 1983 were
unavailable.
51
Total amount appropriated for the Ministry of Education, Culture and Sports for Fiscal
Year 1982 was P 4,387,012,000.00.
52
Total amount appropriated for the Ministry of Social Service and Development for
Fiscal Year 1982 was P 175,099,000.00.
53
Total amount appropriated for the Ministry of Health for Fiscal Year 1982 was P
2,149,789,000.00.
54
The national budget for fiscal year 2010 is P 1,540,000,000.00.
55
Jonathan Sprague and Raissa Espinosa-Robles, Battle for San Mig, at http://www-
cgi.cnn.com/ASIANOW/asiaweek/97/1212/biz1.html, last visited April 7, 2011.
56
http://www.sanmiguel.com.ph/Content.aspx?MID=0&coid=1&navID=12, last visited
April 7, 2011.
57
Rollo (G.R. No. 180702), Volume I, pp. 137-138.
58
J. Bersamin’s Revised Reflections, p. 59
59
Par. 14 (b) of the Republic’s Complaint alleged:
(b) He [Cojuangco] entered SMC in early 1983 when he bought most of the 20
million shares of Enrique Zobel owned in the company. The shares, worth $49
million, represented 20% of SMC;
60
Rollo (G.R. No. 169203), p. 365.
61
62
63
J. Bersamin’s Revised Reflections, p. 45.
64
Citing EO Nos. 1 and 2 (1986).
65
Citing Bataan Shipyard & Engineering Co., Inc v. Presidential Commission on Good
Government (G.R. No. L-75885, May 27, 1987, 150 SCRA 181, 209), Presidential
Commission on Good Government v. Lucio Tan (G.R. Nos. 173553-56, December 7,
2007, 539 SCRA 464, 481), and Chavez v. Presidential Commission on Good
Government (G.R. No. 130716, December 9, 1998, 299 SCRA 744, 768-769).
66
Leyson. Jr. v. Office of the Ombudsman, G.R. No. 134990, April 27, 2000, 331 SCRA
227, 233-234.
67
PD No. 276, Section 1 (b).
68
PD No. 532, Section 3-B (a) and (b).
69
PD No. 1461, Article III, Section 9; the investments shall be made by a commercial
bank acquired by PCA pursuant to PD 755, referring to UCPB.
70
G.R. No. 96073, February 16, 1993.
71
Philippine Coconut Producers Federation, Inc. (COCOFED), et al. v. Presidential
Commission on Good Government, et al., G.R. No. 75713, October 2, 1989, 178 SCRA
236, 244.
72
Agreement, SB Records, Vol. 10, pp. 698- 702; see also Republic v. Sandiganbayan,
G.R. No. 118661, January 22, 2007, 512 SCRA 25, 30.
73
Republic v. Cocofed, et al., G.R. Nos. 147062-64, December 14, 2001.
74
Republic v. Sandiganbayan, G.R. No. 118661, January 22, 2007, 512 SCRA 25, 31.
75
Ibid.
76
See PD No. 961, Article III, Section 8, and PD No. 1468, Article III, Section 8.
77
PD No. 755, Sections 1 and 2.
78
See PD No. 961, Article III, Section 9; and PD 1468, Article III, Section 9. See also
Letters of Instructions No. 926 (September 3, 1979), which declared:
Section 2. Organization of the Cooperative Endeavor. The (UCPB), in its capacity

as the investment arm of the coconut farmers, thru the [CHF] x x x is hereby
directed to invest, on behalf of the coconut farmers, such portion of the CHF x x x
in a private corporation which shall serve as the instrument to pool and coordinate
the resources of the coconut farmers and the oil millers in the buying, milling and
marketing of copra x x x .
79
G.R. No. 147062-64, December 14, 2001.
80
Philippine Rock Industries Inc., v. Board of Liquidators, G.R. No. 84992, December
15, 1989.
81
Leyson, Jr. v. Office of the Ombudsman, G.R. No. 134990, April 27, 2000, 331 SCRA
227 laid down the requisites necessary to consider an agency or entity a GOCC: a) the
agency must be organized as a stock or non-stock corporation; b) it is vested with
functions relating to public needs, whether governmental or proprietary in nature; and c)
it is owned by the government directly or through its instrumentalities either wholly, or,
where applicable as in the case of stock corporations, to the extent of at least fifty-one
(51) percent of its capital stock.
82
Section 1 of PD No. 755.
83
Section 2 (1), Article IX of the 1987 Constitution reads:
Section 2 (1). The Commission on Audit has the power, authority, and duty to
examine, audit, and settle all accounts pertaining to the revenue and receipts of,
expenditures or uses of funds and property, owned or held in trust by, or
pertaining to, the government, or any of its subdivisions, agencies or
instrumentalities, including government-owned and controlled corporations with
original charters, and on a post-audit basis: xxx(c) other government-owned and
controlled corporations xxx . However, where the internal control system of the
audited agencies is inadequate, the Commission may adopt such measures,
including temporary or special pre-audit, as are necessary and appropriate to
correct the deficiencies. (Emphasis ours.)
See also Yap v. Commission on Audit, G.R. No. 158562, April 23, 2010.
84
Cesar Villanueva, Philippine Corporate Law, 1998, pp. 263-264, citing Guevarra, The
Social Function of Private Corporations, 34 Phil L.J. 464, 465 (1959).
85
Rollo (G.R. No. 180702), Volume V, p. 1765.
86
Steinberg v. Velasco, 52 Phil 953, 960 (1929).
87
No. L-14441, December 17, 1966, 18 SCRA 924, 943.
88
Prime White Cement Corp. v. Intermediate Appellate Court, G.R. No. 68555, March
19, 1993, 220 SCRA 103, 110. See also Gokongwei, Jr. v. Securities and Exchange
Commission, No. L-45911, April 11, 1979, 89 SCRA 336, 367-368.
89
189 A. 320 (1937).
90
Ponencia, p. 59.
91
Section 4. Financial Borrowings—All financial borrowings of the private corporation
authorized to be organized as well as any Participating Oil Mill to finance their respective
capital expenditures including the purchase of spare parts and inventories shall be
expeditiously and promptly approved, and such borrowings are hereby ordered exempt
from restrictions/limitations: on simple borrowers limitations; and on loans to
corporations with interlocking directors, officers, stockholders, related interests and
subsidiaries and affiliates, it being understood that such lendings are in effect made to the
coconut industry as a whole and not to any particular individual or entity.
92
See Republic v. Migrino, G.R. No. 89483, August 30, 1990, 189 SCRA 289, 298;
Cruz, Jr. v. Sandiganbayan, G.R. No. 94595, February 26, 1991, 194 SCRA 474;
Republic v. Sandiganbayan, G.R. No. 104768, 407 SCRA 10.
93
An Act Declaring Forfeiture in Favor of the State Any Property Found to Have Been
Unlawfully Acquired by Any Public Officer or Employee.
94
In Republic v. Sandiganbayan (G.R. No. 90529 August 16, 1991), the Court clarified
that the preliminary inquiry required in a RA 1379 forfeiture cases originally given to the
city or provincial fiscals are now vested with the Office of the Ombudsman and the
jurisdiction over the forfeiture case is vested in the Sandiganbayan. The Court said:
A perusal of the law originally creating the Office of the Ombudsman then (to be
known as the Tanodbayan), and the amendatory laws issued subsequent thereto
will show that, at its inception, the Office of the Ombudsman was already vested
with the power to investigate and prosecute civil and criminal cases before the
Sandiganbayan and even the regular courts. xxx
Presidential Decree No. 1630 was the existing law governing the then
Tanodbayan when Republic Act No. 6770 was enacted providing for the
functional and structural organization of the present Office of the Ombudsman.
This later law retained in the Ombudsman the power of the former Tanodbayan to
investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient. In addition, the
Ombudsman is now vested with primary jurisdiction over cases cognizable by the
Sandiganbayan. xxx
Nonetheless, while we do not discount the authority of the Ombudsman, we

believe and so hold that the exercise of his correlative powers to both investigate
and initiate the proper action for the recovery of ill-gotten and/or unexplained
wealth is restricted only to cases for the recovery of ill-gotten and/or unexplained
wealth which were amassed after February 25, 1986. Prior to said date, the
Ombudsman is without authority to initiate such forfeiture proceedings. We,
however, uphold his authority to investigate cases for the forfeiture or recovery of
such ill-gotten and/or unexplained wealth amassed even before the
aforementioned date, pursuant to his general investigatory power under Section
15(l) of Republic Act No. 6770. (Emphasis ours)
See also Garcia v. Sandiganbayan and Office of the Ombudsman, G.R. No.
165835, June 22, 2005 and Romualdez v. Sandiganbayan, G.R. No. 161602, July
13, 2010.
95
96
Rollo (G.R. No. 180702) Volume I, p. 97; Sandiganbayan Records, Volume 6, pp. 223-
237.
97
98
Id. at 847.
99
Supra note 89.
100
101
Id. at 227-231.
102
Id., Volume 9, p. 205.
103
Id., Volume 10, p. 634.
104
Id., Volume 9, pp. 517-521.
105
Id., Volume 13, pp. 502-516.
106
Id., Volume 16, pp. 384-387.
107
Id., Volume 17, p. 89.
108
Rollo (G.R. No. 169203), p. 356.
109
Multi-Trans Agency Philippines, Inc. v. Oriental Assurance Corporation, G.R. No.
180817, June 23, 2009.
110
Paraphrase of the words of Justice Bellosillo in his Dissenting Opinion in Legarda v.
Court of Appeals, G.R. No. 94457, October 6, 1997.
111
Callangan v. People of the Philippines, G.R. No. 153414, June 27, 2006; Multi-Trans
Agency Philippines, Inc. v. Oriental Assurance Corporation, G.R. No. 180817, June 23,
2009; People’s Homesite & Housing Corporation v. Tiongco, 12 SCRA 471; Escudero v.
Dulay, G.R. No. L-60578, February 23, 1988; and Apex Mining Inc. v. Court of Appeals,
G.R. No. 133750, November 29, 1999.
112
Multi-Trans Agency Philippines, Inc. v. Oriental Assurance Corporation, G.R. No.
180817, June 23, 2009.
113
Callangan v. People of the Philippines, G.R. No. 153414, June 27, 2006.
114
G.R. No. 141454, January 31, 2002.
115
Apex Mining, Inc. v. Court of Appeals, G.R. No. 133750, November 29, 1999.
116
Sarraga v.Bangko Filipino Savings and Mortgage Bank, 442 Phil 55 (2002).
117
Commission of Internal Revenue v. Court of Appeals, G.R. No. 106611, July 21, 1994;
Heirs of Reyes v. Republic, G.R. No. 150862, August 3, 2006 and Sharp International
Marketing v. Court of Appeals, G.R. No. 93661, September 4, 1991.
118
L-33983, January 27, 1983.
119
Supra note 17.
120
Supra note 17.
121
City of Manila v. Laguio, 455 SCRA 308 (2005).
122
Banco Espanol-Filipino v. Palanca, 37 Phil 921 (1918).
123
Habana v. National Labor Relations Commission, G.R. No. 129418, September 10,
1999.
124
Rene B. Gorospe, Constitutional Law, Volume 1, 2006 edition, p. 80, citing Matthews
v. Eldridge, 424 US 319, 333 (1975).
125
Rene B. Gorospe, Constitutional Law, Volume 1, 2006 edition, p. 80, citing Agabon v.
National Labor Relations Commission, 442 SCRA 573 (2004), p. 611-12.
126
Philippine National Construction Corporation v. National Labor Relations
Commission, 292 SCRA 266 (1998).
127
Zulueta v. Asia Brewery, Inc., G.R. No. 138137, March 8, 2001.
128
Rollo (G.R. No 180702) Volume II, p. 162.
129
Apex Mining, Inc. v. Court of Appeals, G.R. No. 133750, November 29, 1999.
SUPREME COURT
Manila
EN BANC
G.R. No. 176951 June 28, 2011
vs.
Commission on Elections; Municipality of Baybay, Province of Leyte; Municipality of
Bogo, Province of Cebu; Municipality of Catbalogan, Province of Western Samar;
Municipality of Tandag, Province of Surigao del Sur; Municipality of Borongan, Province
of Eastern Samar; and Municipality of Tayabas, Province of Quezon, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177499
vs.
Commission on Elections; Municipality of Lamitan, Province of Basilan; Municipality of
Tabuk, Province of Kalinga; Municipality of Bayugan, Province of Agusan del Sur;
Municipality of Batac, Province of Ilocos Norte; Municipality of Mati, Province of Davao
Oriental; and Municipality of Guihulngan, Province of Negros Oriental, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178056
vs.
Commission on Elections; Municipality of Cabadbaran, Province of Agusan del Norte;
Municipality of Carcar, Province of Cebu; Municipality of El Salvador, Province of
RESOLUTION
BERSAMIN, J.:
We hereby consider and resolve:– (a) the petitioners’ Motion for Leave to File Motion for
Reconsideration of the Resolution of 12 April 2011, attached to which is a Motion for
Reconsideration of the Resolution dated 12 April 2011 dated April 29, 2011 (Motion For
Reconsideration), praying that the resolution of April 12, 2011 be reconsidered and set aside; and
(b) the respondents’ Motion for Entry of Judgment dated May 9, 2011.
After thorough consideration of the incidents, we deny the Motion for Reconsideration and grant
the Motion for Entry of Judgment.
As its prayer for relief shows, the Motion for Reconsideration seeks the reconsideration, reversal,
or setting aside of the resolution of April 12, 2011.1 In turn, the resolution of April 12, 2011
denied the petitioners’ Ad Cautelam Motion for Reconsideration (of the Decision dated 15
February 2011).2 Clearly, the Motion for Reconsideration is really a second motion for
reconsideration in relation to the resolution dated February 15, 2011.3
Another indicium of its being a second motion for reconsideration is the fact that the Motion for
Reconsideration raises issues entirely identical to those the petitioners already raised in their Ad
Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011). The following
tabulation demonstrates the sameness of issues between the motions, to wit:
Motion for Ad Cautelam Motion for

Reconsideration Reconsideration (of the
of April 29, 2011 Decision dated 15
February 2011) dated
March 8, 2011
I. With due respect, II. The Resolution

neither the Rules of Contravenes The 1997
Court nor jurisprudence Rules Of Civil
allows the Honorable Procedure And
Court to take Relevant Supreme
cognizance of Court Issuances.
Respondent
Municipalities multiple
motions. By doing so,
the Honorable Court
therefore acted contrary
to the Rules of Court
and its internal
procedures.
II. Contrary to the I. The Honorable Court

ruling of the Honorable Has No Jurisdiction To
Court in the Assailed Promulgate The
Resolution, the Resolution Of 15
controversy involving February 2011, Because
the Sixteen (16) There is No Longer Any
Cityhood laws had long Actual Case Or
been resolved with Controversy To Settle.
finality; thus, the
principles of III. The Resolution
immutability of Undermines The Judicial
judgment and res System In Its Disregard
judicata are applicable Of The Principles Of
and operate to deprive Res Judicata And The
the Honorable Court of Doctrine of
jurisdiction. Immutability of Final
Judgments.
III. Contrary to the IV. The Resolution

Assailed Resolution of Erroneously Ruled That
the Honorable Court, The Sixteen (16)
the sixteen (16) Cityhood Bills Do Not
Cityhood laws neither Violate Article X,
repealed nor amended Sections 6 and 10 Of
the Local Government The 1987 Constitution.
Code. The Honorable
Court committed an V. The Sixteen (16)
error when it failed to Cityhood Laws Violate
rule in the Assailed The Equal Protection
Resolution that the Clause Of The
Sixteen (16) Cityhood Constitution And The
Laws violated Article Right Of Local
X, Sections 6 and 10 of Government Units To A
the Constitution. Just Share In The
National Taxes.
IV. With due respect,
the constitutionality of
R.A. 9009 is not an
issue in this case. It was
error on the part of the
Honorable Court to
consider the law
arbitrary.
That Issue No. IV (i.e., the constitutionality of Republic Act No. 9009) appears in the Motion for
Reconsideration but is not found in the Ad Cautelam Motion for Reconsideration (of the
Decision dated 15 February 2011) is of no consequence, for the constitutionality of R.A. No.
9009 is neither relevant nor decisive in this case, the reference to said legislative enactment being
only for purposes of discussion.
The Motion for Reconsideration, being a second motion for reconsideration, cannot be
entertained. As to that, Section 24 of Rule 51 of the Rules of Court is unqualified. The Court has
firmly held that a second motion for reconsideration is a prohibited pleading,5 and only for
extraordinarily persuasive reasons and only after an express leave has been first obtained may a
second motion for reconsideration be entertained.6 The restrictive policy against a second motion
for reconsideration has been re-emphasized in the recently promulgated Internal Rules of the
Supreme Court, whose Section 3, Rule 15 states:
Section 3. Second motion for reconsideration. – The Court shall not entertain a second
motion for reconsideration, and any exception to this rule can only be granted in the higher
interest of justice by the Court en banc upon a vote of at least two-thirds of its actual
membership. There is reconsideration "in the higher interest of justice" when the assailed
decision is not only legally erroneous, but is likewise patently unjust and potentially capable of
causing unwarranted and irremediable injury or damage to the parties. A second motion for
reconsideration can only be entertained before the ruling sought to be reconsidered
becomes final by operation of law or by the Court’s declaration.
In the Division, a vote of three Members shall be required to elevate a second motion for
reconsideration to the Court En Banc.
We observe, too, that the prescription that a second motion for reconsideration "can only be
entertained before the ruling sought to be reconsidered becomes final by operation of law or by
the Court’s declaration" even renders the denial of the petitioners’ Motion for Reconsideration
more compelling. As the resolution of April 12, 2011 bears out,7 the ruling sought to be
reconsidered became final by the Court’s express declaration. Consequently, the denial of the
Motion for Reconsideration is immediately warranted.
Still, the petitioners seem to contend that the Court had earlier entertained and granted the
respondents’ own second motion for reconsideration. There is no similarity between then and
now, however, for the Court en banc itself unanimously declared in the resolution of June 2,
2009 that the respondents’ second motion for reconsideration was "no longer a prohibited
pleading."8 No similar declaration favors the petitioners’ Motion for Reconsideration.
Finally, considering that the petitioners’ Motion for Reconsideration merely rehashes the issues
previously put forward, particularly in the Ad Cautelam Motion for Reconsideration (of the
Decision dated 15 February 2011), the Court, having already passed upon such issues with
finality, finds no need to discuss the issues again to avoid repetition and redundancy.
Accordingly, the finality of the resolutions upholding the constitutionality of the 16 Cityhood
Laws now absolutely warrants the granting of respondents’ Motion for Entry of Judgment.
WHEREFORE, the Court denies the petitioners’ Motion for Leave to File Motion for
Reconsideration of the Resolution of 12 April 2011 and the attached Motion for Reconsideration
of the Resolution of 12 April 2011; grants the respondents’ Motion for Entry of Judgment dated
May 9, 2011; and directs the Clerk of Court to forthwith issue the Entry of Judgment in this case.
No further pleadings or submissions by any party shall be entertained.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice




Associate Justice
CERTIFICATION
RENATO C. CORONA
Chief Justice
Footnotes
1
The prayer for relief of the Motion for Reconsideration states:
WHEREFORE, Petitioners most respectfully pray that the Resolution dated 12
April 2011 be forthwith RECONSIDERED, REVERSED or SET ASIDE.
2
The dispositive portion of the resolution of April 12, 2011 reads:
WHEREFORE, the Ad Cautelam Motion for Reconsideration (of the Decision

dated 15 February 2011) is denied with finality.
SO ORDERED.
3
The dispositive portion of the resolution of February 15, 2011 says:
WHEREFORE, the Motion for Reconsideration of the "Resolution" dated August

24, 2010, dated and filed on September 14, 2010 by respondents Municipality of
Baybay, et al. is GRANTED. The Resolution dated August 24, 2010 is
REVERSED and SET ASIDE. The Cityhood Laws—Republic Acts Nos. 9389,
9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435,
9436, and 9491—are declared CONSTITUTIONAL.
SO ORDERED.
4
Section 2. Second motion for reconsideration. – No second motion for reconsideration
of a judgment or final resolution by the same party shall be entertained.
5
Securities and Exchange Commission v. PICOP Resources, Inc., 566 SCRA 451 (2008);
APO Fruits corporation v. Land Bank of the Philippines, G.R. No. 164195, April 5,
2011; Ortigas and Company Limited Partnership v. Velasco, 254 SCRA 234.
6
Ortigas and Company Limited Partnership v. Velasco, supra.
7
Supra, note 2.
8
The resolution of June 2, 2009 pertinently declared:
xxx
In the present case, the Court voted on the second motion for reconsideration
filed by the respondent cities. In effect, the Court allowed the filing of the
second motion for reconsideration. Thus, the second motion for
reconsideration was no longer a prohibited pleading. However, for lack of the
required number of votes to overturn the 18 November 2009 Decision and 31
March 2009 Resolution, the Court denied the second motion for reconsideration
in its 28 April 2009 Resolution.
xxx
DISSENTING OPINION
CARPIO, J.:
The majority decision upheld the constitutionality of the Cityhood Laws because (1) of the
pendency of the conversion bills during the 11th Congress; and (2) compliance with the
requirements of the Local Government Code prior to its amendment by Republic Act No. 9009.
I reiterate my dissent.
I.
Section 10, Article X of the 1987 Constitution provides:
Notably, each Cityhood Law provides in its Separability Clause that if any of its provisions is
"inconsistent with the Local Government Code," the other consistent provisions "shall
continue to be in full force and effect." The clear and inescapable implication is that any
provision in each Cityhood Law that is "inconsistent with the Local Government Code"
has no force and effect – in short, void and ineffective. Each Cityhood Law expressly and
unequivocally acknowledges the superiority of the Local Government Code, and that in case of
conflict, the Local Government Code shall prevail over the Cityhood Law. The clear intent
and express language of the Cityhood Laws is for these laws to conform to the Local
Government Code and not the other way around.
Contrary to the faulty conclusion of the majority, the Cityhood Laws do not amend the Local
Government Code. The Legislature never intended the Cityhood Laws to amend the Local
Government Code. Nowhere in the plain language of the Cityhood Laws can this interpretation
be discerned. Neither the title nor the body of the Cityhood Laws sustains such conclusion.
Simply put, there is absolutely nothing in the Cityhood Laws to support the majority decision
that the Cityhood Laws amended the Local Government Code.
II.
The Cityhood Laws violate the equal protection clause.
There is no substantial distinction between municipalities with pending cityhood bills in the 11th
Congress and municipalities that did not have pending bills. The mere pendency of a cityhood
bill in the 11th Congress is not a material difference to distinguish one municipality from another
for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress
does not affect or determine the level of income of a municipality. Municipalities with pending
cityhood bills in the 11th Congress might even have lower annual income than municipalities
that did not have pending cityhood bills. In short, the classification criterion − mere pendency of
a cityhood bill in the 11th Congress − is not rationally related to the purpose of the law which is
to prevent fiscally non-viable municipalities from converting into cities.
The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific
condition existing at the time of passage of RA 9009. That specific condition will never happen
again. This violates the requirement that a valid classification must not be limited to existing
conditions only.
In the same vein, the exemption provision in the Cityhood Laws gives the 16 municipalities a
unique advantage based on an arbitrary date − the filing of their cityhood bills before the end of
the 11th Congress – as against all other municipalities that want to convert into cities after the
effectivity of RA 9009.
Further, limiting the exemption only to the 16 municipalities violates the requirement that the
Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written
in Section 450 of the Local Government Code, is unconstitutional for violation of the equal
protection clause.
III.
Respondent municipalities must comply with the
P100 million income requirement under the prevailing LGC.
local government code." Therefore, respondent municipalities in order to validly convert into
cities must comply with the P100 million income requirement under the prevailing Local
Government Code, as amended by RA 9009, and not with the old P20 million income
requirement. Otherwise, such compliance with the old P20 million income requirement is void
for being unconstitutional.
There must be strict compliance with the express command of the Constitution that "no city x x
x shall be created x x x except in accordance with the criteria established in the local
government code." Substantial compliance is insufficient because it will discriminate against all
other cities that were created before and after the enactment of the Cityhood Laws in strict
compliance with the criteria in the Local Government Code, as amended by RA No. 9009. The
conversion of municipalities into new cities means an increase in the Internal Revenue Allotment
of the former municipalities and a corresponding decrease in the Internal Revenue Allotment of
all other existing cities. There must be strict, not only substantial, compliance with the
constitutional requirement because the economic lifeline of existing cities may be seriously
affected.
IV.
According to the majority, "the imposition of the income requirement of P100 million from local
sources under R.A. No. 9009 was arbitrary. x x x no research or empirical data buttressed the
figure. Nor was there proof that the proposal took into account the after-effects that were likely
to arise."
The Legislature, in enacting RA No. 9009, is not required by the Constitution to show the courts
data like inflation figures to support the increased income requirement. As long as the increased
income requirement is not impossible to comply, such increase is a policy determination
involving the wisdom of the law, which exclusively lies within the province of the Legislature.
When the Legislature enacts laws increasing taxes, tax rates, or capital requirements for
businesses, the Court cannot refuse to apply such laws on the ground that there is no economic
justification for such increases. Economic, political or social justifications for the enactment of
laws go into the wisdom of the law, outside the purview of judicial review. This Court cannot
refuse to apply the law unless the law violates a specific provision of the Constitution. There is
plainly nothing unconstitutional in increasing the income requirement from P20 million to P100
million because such increase does not violate any express or implied provision of the
Constitution.
V.
Failure of 59 existing cities to post P100 million annual income
does not render the P100 million income requirement
difficult to comply.
comply.
Moreover, as stated, the increased income requirement of P100 million is neither

unconstitutional nor unlawful. Unless the P100 million income requirement violates a provision
of the Constitution or a law, such requirement for the creation of a city must be strictly complied
with by local government units within or near the National Capital Region. The majority’s
VI.
Uniform and non-discriminatory criteria as prescribed in the Local Government Code are
essential to implement a fair and equitable distribution of national taxes to all local government
units. Section 6, Article X of the Constitution provides:
Local government units shall have a just share, as determined by law, in the national taxes
which shall be automatically released to them. (Emphasis supplied)
If the criteria in creating local government units are not uniform and discriminatory, there can be
no fair and just distribution of the national taxes to local government units.
A city with an annual income of only P20 million, all other criteria being equal, should not
receive the same share in national taxes as a city with an annual income of P100 million or more.
The criteria of land area, population and income, as prescribed in Section 450 of the Local
Government Code, must be strictly followed because such criteria, prescribed by law, are
material in determining the "just share" of local government units in national taxes. Since the
Cityhood Laws do not follow the income criterion in Section 450 of the Local Government
Code, they prevent the fair and just distribution of the Internal Revenue Allotment in violation of
Section 6, Article X of the Constitution.
As pointed out by petitioners, "respondent municipalities have a total population equivalent to

that of Davao City only, or around 1.3 million people. Yet, the IRA that pertains to the 16
municipalities (P4,019,776,072) is more than double that for Davao City (P1,874,175,271). x x x
As a result, the per capita IRA alloted for the individual denizen of Davao is even less than half
of the average per capita IRA of the inhabitants of the sixteen (16) municipalities (P1,374.70
divided by P3,117.24)."
This indisputable fact vividly reveals the economic inequity that will inevitably result from the
unjust allocation of the IRA as a consequence of the conversion of respondent municipalities into
cities. Clearly, if the existing cities’ share in the Internal Revenue Allotment is unreasonably
reduced, it is possible, even expected, that these cities may have to lay-off workers and abandon
projects, greatly hampering, or worse paralyzing, the delivery of much needed public services in
their respective territorial jurisdictions.
VII.
Conclusion
The Constitution expressly requires Congress to stipulate in the Local Government Code itself
all the criteria necessary for the creation of a city, including the conversion of a municipality into
a city. To avoid discrimination and ensure uniformity and equality, such criteria cannot be
embodied in any other law except the Local Government Code. In this case, the Cityhood Laws,
which are unmistakably laws other than the Local Government Code, provide an exemption from
the increased income requirement for the creation of cities under Section 450 of the Local
Government Code, as amended by RA No. 9009. Clearly, the Cityhood Laws contravene the
letter and intent of Section 10, Article X of the Constitution. In addition, the Cityhood Laws
violate the equal protection clause and Section 6, Article X of the Constitution on the fair and
equitable distribution of national taxes to all local government units. Without any doubt, the
Cityhood Laws must be striken down for being unconstitutional.
Philippines.
ANTONIO T. CARPIO
Associate Justice
Footnote
1
DISSENTING OPINION
SERENO, J.:
"If changing judges changes laws, it is not even clear what law is."
- Richard A. Posner1
I maintain my dissent that the sixteen Cityhood Laws are unconstitutional. In questioning the
Court’s latest Resolution,2 petitioners have raised concerns over the "highly irregular and
unprecedented" acts of entertaining several motions for reconsideration.3 In response to these
concerns, I wish to expound on the effects of the "flip-flopping" decisions on the Court’s role in
our democratic system and its decision-making process, in order that it may "serve to bulwark
the fortifications of an orderly government of laws."4
Our system of democracy is committed irrevocably to a government of laws,5 and not of men.6
Laws give witness to society’s moral values7 and are the depositories of what the sovereign as a
whole has agreed to uphold as the minimum standards of conduct that will govern relationships
and transactions within that society. In a representative democracy, the Filipino people, through
their elected representatives, deliberate, distill and make moral judgments, which are crystallized
into written laws that are made public, accessible and binding to all.8 Perhaps no characteristic of
an organized and cohesive society is more fundamental than its erection and enforcement of a
system of rules defining the various rights and duties of its members, enabling them to govern
their affairs and definitively settle their differences in an orderly, predictable manner.9
Obedience to the rule of law forms the bedrock of our system of justice.10 Once the sovereign
people’s "soft" moral choices are hardened through the constitutionally mandated legislative
process,11 statutory laws perform an equalizing function of imposing a knowable standard of
conduct or behavior to which all members of society must conform to – a social contract which
everyone regardless of class, sex or religion is bound.12 Legislative enactments are ordinarily
prospective and general in character insofar as they prescribe limitations on an individual’s
future conduct. Under the rule of law,13 ordinary people can reasonably assume that another
person’s future conduct will be in observance of the laws and can conceivably expect that any
deviation therefrom will be punished accordingly by responsible authorities. Thus, written
constitutions and statutory laws allow citizens a minimum confidence in a world of uncertainty:
Through constitutionalism we placed limits on both our political institutions and ourselves,
hoping that democracies, historically always turbulent, chaotic, and even despotic, might now
become restrained, principled, thoughtful and just. So we bound ourselves over to a law that we
made and promised to keep. And though a government of laws did not displace governance by
men, it did mean that now men, democratic men, would try to live by their word.14
As man-made creations, however, laws are not always entirely encompassing, as future
conditions may change – conditions that could not have been perceived or accounted for by the
legislators. Actual situations may arise between two conflicting claims by specific parties with
differing interpretations of the law. In those instances in which a gray area or an unintended gap
exists in the implementation or execution of laws, the judicial department is charged with the
duty of determining the limitations that the law places upon all actions of individuals.15 Hence,
the court’s primary adjudicatory function is to mark the metes and bounds of the law in specific
areas of application, as well as to pass judgment on the competing positions in a case properly
brought before it.
The Court not only functions to adjudicate rights among the parties, but also serves the purpose
of a supreme tribunal of last resort that establishes uniform rules of civil justice.16 Jurisprudence
"narrows the field of uncertainty"17 in the application of an unclear area of the law. The certainty
of judicial pronouncement lends respect for and adherence to the rule of law – "the idea that all
citizens and all organs of government are bound by rules fixed in advance, which make it
possible to foresee how the coercive powers of government will be used, whether in its own
interests or in aid of citizens who call on them, in particular circumstances."18 The Court’s
historic role of pronouncing what the law is between the parties19 is the cornerstone of a
government of laws, and not of men.20 Justice Antonin Scalia of the United States Supreme
Court expounded on the objectives of uniformity and predictability of judicial decisions, to wit:
This last point suggests another obvious advantage of establishing as soon as possible a clear,
general principle of decision: predictability. Even in simpler times uncertainty has been regarded
as incompatible with the Rule of Law. Rudimentary justice requires that those subject to the law
must have the means of knowing what it prescribes. It is said that one of emperor Nero's nasty
practices was to post his edicts high on the columns so that they would be harder to read and
easier to transgress. As laws have become more numerous, and as people have become
increasingly ready to punish their adversaries in the courts, we can less and less afford protracted
uncertainty regarding what the law may mean. Predictability, or as Llewellyn put it,
"reckonability," is a needful characteristic of any law worthy of the name. There are times when
even a bad rule is better than no rule at all.21 (Emphasis supplied)
Certainty and "reckonability" in the law are the major objectives of the legal system, and judicial
decisions serve the important purpose of providing stability to the law and to the society
governed by that law.22 If we are to subscribe to Justice Oliver Wendell Holmes’ theory of a bad
man,23 then law provides reasonable predictability in the consequences of one’s actions relative
to the law, if performed in a just and orderly society. As judicial decisions form part of the law of
the land,24 there is a strong public interest in stability and in the orderly conduct of our affairs, an
end served by a consistent course of adjudication.25 Thus, once a court has decided upon a rule of
law, "that decision should continue to govern the same issues in subsequent stages" of the same
case26 and thus offers to the people some measure of conviction about the legal effects of their
actions. In the absence of extraordinary circumstances, courts should be loathe to revisit prior
decisions.27
In the instant case, the public confusion, sown by the pendulum swing of the Court’s decisions,
has yielded unpredictability in the judicial decision-making process and has spawned untold
consequences upon the public’s confidence in the enduring stability of the rule of law in our
jurisdiction.
The Court has been entrusted by the sovereign with the duty of voicing out and sharpening with
finality society’s collective ideals in its written decisions. Yet, if cases are litigated in perpetuity,
and judgments are clouded with continuous uncertainty, the public’s confidence in the stability
of judicial precedents promulgated by the Court would be greatly diminished. In this case, the
Court has reviewed and reconsidered, no less than five times already,28 the constitutionality of
the sixteen Cityhood Laws.29 During this time, the public has been made to endure an inordinate
degree of indecision that has disturbed the conduct of local government affairs with respect not
only to the municipalities asking to become cities, but also with respect to cities genuinely
fearful of the destruction of the standards for the creation of cities and the correlative diminution
of the internal revenue allotments of existing cities. The Court’s commitment to provide constant
and steadfast rules on the creation of cities has been inevitably weakened by the "flip-flopping"
in the case that has opened the doors to rabid criticisms of the Court’s failure to abide by its own
internal rules and, thus, diminishing reliance on the certainty of its decisions.
To be sure, the Court is not precluded from rectifying errors of judgment if blind and stubborn
adherence to the doctrine of immutability30 would involve the sacrifice of justice for
technicality.31 The Court has previously provided for exceptions to the rule on immutability of
final judgments, as follows: (1) the correction of clerical errors;32 (2) nunc pro tunc entries which
cause no prejudice to any party;33 (3) void judgments;34 and (4) supervening events.35 As
exceptions to the general rule, their application to instances wherein a review of a final and
executory decision is called are to be strictly construed.36 No convincing argument or
extraordinary circumstance has been raised to justify and support the application of any of these
exceptions to warrant a reversal of the Court’s First Decision. Reversing previous, final, and
executory decisions are to be done only under severely limited circumstances. Although new and
unforeseen circumstances may arise in the future to justify a review of an established legal
principle in a separate and distinct case, the extension of a principle must be dealt with
exceptionally and cautiously.
Undeniably, the Court in the past has overturned prior decisions even on a second or third
motion for reconsideration and recalled entries of judgment on the ground of substantial interest
of justice and special and compelling reasons.37 The Court bows to "the lessons of experience
and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the
physical sciences, is appropriate also in the judicial function."38 Notable reversals in recent
memory include the cases involving the request for extradition of Mark Jimenez,39 the
constitutionality of the Philippine Mining Act of 1995,40 the land title covering the Piedad Estate
in Quezon City,41 the just compensation due to Apo Fruits Corporation,42 and the "deemed
resigned" provision for public appointive officials in the recent May 2010 election.43 Although
no prohibition exists that would prevent this Court from changing its mind in the light of
compelling reasons and in the interest of substantial justice as abovedemonstrated, extreme
retrospect and caution must accompany such review.
In the instant case, there is no substantial interest of justice or compelling reason that would
warrant the reversal of the First Decision declaring the Cityhood Laws unconstitutional. There is
no injustice in preventing the conversion of the sixteen municipalities into cities at this point in
time. In fact, justice is more equitably dispensed by the stringent application of the current
legislative criteria under the Local Government Code (LGC),44 as amended by Republic Act No.
9009 (RA 9009), for creating cities without distinction or exception. It must be remembered that
the declaration of unconstitutionality is not an absolute ban on these municipalities prohibiting
them from pursuing cityhood in the future once they are able to achieve the PhP100,000,000
income requirement under RA 9009.45 Alternatively, their congressional representatives can also
press for another amendatory law of the LGC that would include an explicit exception to the
income requirement for municipalities with pending cityhood bills prior to the enactment of RA
9009. The route purportedly chosen by Congress to indirectly amend the LGC through the
exemption of annual income requirements in the Cityhood Laws is improper. If Congress
believes that the minority’s construction of its intention in increasing the annual income
requirement is erroneous, then the legislature can show its disapproval by directly enacting
amendatory legislation of the LGC. In both cases, the remedy available to the sixteen
municipalities is not with the Court, but with the legislature, which is constitutionally
empowered to determine the standards for the creation of a local government unit. The reasoning
and substantial justice arguments expounded to reverse the initial finding of the Court that the
Cityhood Laws are unconstitutional are poorly founded.
The LGC is a distinctly normative law that regulates the legislative power to create cities and
establishes the standards by which the power is exercised. Unlike other statutes that prohibit
undesirable conduct of ordinary citizens and are ends by themselves, the LGC prescribes the
means by which congressional power is to be exercised and local government units are brought
into legal existence. Its purpose is to avoid the arbitrary and random creation of provinces, cities
and municipalities. By encapsulating the criteria for cityhood in the LGC, Congress provided
objective, equally applicable and fairly ascertainable standards and reduced the emphasis on
currying political favor from its members to approvingly act on the proposed cityhood law.
Otherwise, cities chartered under a previous Congress can be unmade, at a whim, by a
subsequent Congress, regardless of its compliance with the LGC’s requirements. Fairness and
equity demand that the criteria established by the LGC be faithfully and strictly enforced, most
especially by Congress whose power is the actual subject of legislative delimitation.
In granting it the power to fix the criteria for the creation of a city, the Constitution, of course,
did not preclude Congress from revising the standards imposed under the LGC. Congress shall
enjoy the freedom to reconsider the minimum standards under the LGC, if future circumstances
call for it. However, the method of revising the criteria must be directly done through an
amendatory law of the LGC (such as RA 9009), and not through the indirect route of creating
cities and exempting their compliance with the established and prevailing standards. By
indiscriminately carving out exemptions in the charter laws themselves, Congress enfeebled the
normative function of the LGC on the legislative power to create cities. Taking the argument to
the extreme, a single barangay now has the chance of being chartered as a component city
without compliance with the income, territorial or population requirements under the LGC, for as
long as enough Congressional support is mustered to push for its exemption – not in a general
amendatory law, but through its own specific legislative charter. The selective disregard of the
norms under the LGC in favor of some municipalities cannot be sanctioned in a system where
the rule of law remains dominant. Unless prevented by the Court, Congress will now be
emboldened to charter new cities wholesale and arbitrarily relax the stringent standards under the
LGC, which it imposed on itself.
It must be emphasized that no inconsistency arises from the present minority’s continued
participation in the disposition of the second or subsequent motions for reconsideration of the
parties with the avowed purpose of predictability of judicial pronouncements. The reiteration of
the minority’s position that the Cityhood Laws are unconstitutional is an expression that none of
the "new" or rehashed arguments in the subsequent motions have merited a change in their stand
and appreciation of the facts and the law. For the minority to abandon their involvement from the
proceedings in a mechanical adherence to the rule that the second and subsequent motions for
reconsideration are prohibited pleadings that do not warrant the Court’s attention is to capitulate
to the sixteen municipalities’ abhorrent strategy of insistent prayer for review of re-hashed
arguments, already passed on, repeatedly.
If stability in the Court’s decisions46 is to be maintained, then parties should not be encouraged
to tirelessly seek reexamination of determined principles and speculate on the fluctuation of the
law with every change of its expounders.47 In Clavano v. Housing and Land Use Regulatory
Board, the Court explained that:
"The tendency of the law," observes Justice Oliver Wendell Holmes, "must always be to narrow
the field of uncertainty." And so was the judicial process conceived to bring about the just
termination of legal disputes. The mechanisms for this objective are manifold but the essential
precept underlying them is the immutability of final and executory judgments.
This fundamental principle in part affirms our recognition of instances when disputes are
inadequately presented before the courts and addresses situations when parties fail to unravel
what they truly desire and thus fail to set forth all the claims which they want the courts to
resolve. It is only when judgments have become final and executory, or even when already
deemed satisfied, that our negligent litigants belatedly come forth to pray for more relief. The
distilled wisdom and genius of the ages would tell us to reject their pleas, for the loss to litigants
in particular and to society in general would in the long run be greater than the gain if courts and
judges were clothed with power to revise their final decisions at will.48 (Emphasis supplied)
Unlike that of the other two political branches whose mandates are regularly renewed through
direct election, the Court’s legitimacy must be painstakingly earned with every decision that puts
voice to the cherished value judgments of the sovereign. The judicial function in an organized
and cohesive society governed by the rule of law is placed in serious peril if the people cannot
rely on the finality of court decisions to regulate their affairs. There is no reason for the Court to
bend over backwards to accommodate the parties’ requests for reconsideration, yet again, of the
unconstitutionality of the sixteen Cityhood Laws as borne by the First Decision, especially if the
result would lead to the fracturing of central tenets of the justice system. The people’s sense of
an orderly government will find it unacceptable if the Supreme Court, which is tasked to express
enduring values through its judicial pronouncements, is founded on sand, easily shifting with the
changing tides.
The legal process of creating cities – as enacted and later amended by the legislature,
implemented by the executive, and interpreted by the judiciary –serves as the people’s North
Star: certain, stable and predictable. Absent the three branches’ adherence to the rule of law, our
society would denigrate into uncertainty, instability and even anarchy. Indeed, the law is the only
supreme power in our system of government, and every man who by accepting office
participates in its functions is only the more strongly bound to submit to that supremacy and to
observe the limitations it imposes upon the exercise of the authority that it gives.49 No public
officer is held to these highest of normative standards than those whose duties are to adjudicate
the rights of the people and to articulate on enduring principles of law applicable to all.
As Justice Robert Jackson eloquently expressed,50 the Supreme Court is not final because it is
infallible; it is infallible because it is final. And because its decisions are final, even if faulty,
there must be every energy expended to ensure that the faulty decisions are few and far between.
The integrity of the judiciary rests not only upon the fact that it is able to administer justice, but
also upon the perception and confidence of the community that the people who run the system
have done justice.51
The determination of the correctness of a judicial decision turns on far more than its outcome.52
Rather, it turns on whether its outcome evolved from principles of judicial methodology, since
the judiciary’s function is not to bring about some desired state of affairs, but to find objectively
the right decision by adhering to the established general system of rules.53
What we are dealing with in this case is no longer limited to the question of constitutionality of
Cityhood Laws; we are also confronted with the question of certainty and predictability in the
decisions of the Court under a democratic system governed by law and rules and its ability to
uphold the Constitution and normative legislation such as the LGC.
The public has unduly suffered from the repeated "flip-flopping" in this case, especially since it
comes from the branch of government tasked to embody in a clear form enduring rules of civil
justice that are to govern them. In expressing these truths, I echo the sentiment of a judicial
colleague from a foreign jurisdiction who once said, "I write these words, not as a jeremiad,54 but
in the belief that unless the courts adhere to the guidance of fixed principles, we will soon bring
objective law to its sepulcher."55

Associate Justice
Footnotes
1
Posner, Richard A., How Judges Think (2008), at 1.
2
Resolution dated 12 April 2011.
3
Petitioners’ Motion for Reconsideration dated 29 April 2011, para. 1.6, at 7.
4
"In concluding this tedious and disagreeable task, may we not be permitted to express
the hope that this decision may serve to bulwark the fortifications of an orderly
government of laws and to protect individual liberty from illegal encroachment."
(Villavicencio v. Lukban, G. R. No. 14639, 25 March 1919, 39 Phil. 778; emphasis
supplied)
5
Dissenting Opinion, Justice Paras, Austria v. Amante, G. R. No. L-959, 09 January
1948, 79 Phil. 780.
6
"The Government of the Philippine Islands is essentially a Government of laws and not
of men." (In Re: Mulloch Dick, G. R. No. 13862, 16 April 1918, 38 Phil. 41)
7
"The laws enacted become expressions of public morality. As Justice Holmes put it,
‘(t)he law is the witness and deposit of our moral life.’ ‘In a liberal democracy, the law
reflects social morality over a period of time.’ Occasionally though, a disproportionate
political influence might cause a law to be enacted at odds with public morality or
legislature might fail to repeal laws embodying outdated traditional moral views. Law has
also been defined as ‘something men create in their best moments to protect themselves
in their worst moments.’ … Law deals with the minimum standards of human conduct
while morality is concerned with the maximum. … Law also serves as ‘a helpful starting
point for thinking about a proper or ideal public morality for a society’ in pursuit of moral
progress." (Estrada v. Escritor, A.M. No. P-02-1651, 04 August 2003, 408 SCRA 1)
8
"In a democracy, this common agreement on political and moral ideas is distilled in the
public square. Where citizens are free, every opinion, every prejudice, every aspiration,
and every moral discernment has access to the public square where people deliberate the
order of their life together. Citizens are the bearers of opinion, including opinion shaped
by, or espousing religious belief, and these citizens have equal access to the public
square. In this representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation. Through a
constitutionally designed process, the people deliberate and decide. Majority rule is a
necessary principle in this democratic governance. Thus, when public deliberation on
moral judgments is finally crystallized into law, the laws will largely reflect the beliefs
and preferences of the majority, i.e., the mainstream or median groups." (Estrada v.
Escritor, id.)
9
Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).
10
People v. Veneracion, G. R. No. 119987-88, 12 October 1995, 319 Phil. 364.
11
Constitution, Art. VI, Sec. 26 and 27.
12
"For when any number of men have, by the consent of every individual, made a
community, they have thereby made that community one body, with a power to act as
one body, which is only by the will and determination of the majority: for that which acts
any community, being only the consent of the individuals of it, and it being necessary to
that which is one body to move one way; it is necessary the body should move that way
whither the greater force carries it, which is the consent of the majority: or else it is
impossible it should act or continue one body, one community, which the consent of
every individual that united into it, agreed that it should; and so every one is bound by
that consent to be concluded by the majority. And therefore we see, that in assemblies,
empowered to act by positive laws, where no number is set by that positive law which
empowers them, the act of the majority passes for the act of the whole, and of course
determines, as having, by the law of nature and reason, the power of the whole." (Locke,
John. Second Treatise on Civil Government, cited in footnote no. 47 of Chief Justice
Reynato Puno’s Concurring Opinion in Province of North Cotabato v. GRP Peace Panel
on Ancestral Domain, 568 SCRA 402)
13
The rule of law has likewise been described as "a defeasible entitlement of persons to
have their behavior governed by laws that are publicly fixed in advance." (Stephen R.
Munzer, A Theory of Retroactive Legislation, 61 Tex. L. Rev. 425 [1982] at 438)
14
Separate Opinion, Justice Santiago Kapunan, Estrada v. Desierto, G. R. No. 146710-15
& 146738, 02 March 2001, 356 SCRA 108.
15
Separate Opinion, Justice Reynato Puno in IBP v. Zamora, G. R. No. 141284, 15
August 2000, 338 SCRA 81.
16
"… Laws are a dead letter without courts to expound and define their true meaning and
operation. … Their true import, as far as respects individuals, must, like all other laws, be
ascertained by judicial determinations. To produce uniformity in these determinations,
they ought to be submitted, in the last resort, to one supreme tribunal. … There are
endless diversities in the opinions of men. We often see not only different courts but the
judges of the same court differing from each other. To avoid the confusion which would
unavoidably result from the contradictory decisions of a number of independent
judicatories, all nations have found it necessary to establish one court paramount to the
rest, possessing a general superintendence, and authorized to settle and declare in the last
resort a uniform rule of civil justice." (Alexander Hamilton, Federalist Paper No. 22;
emphasis supplied)
17
"Still, the tendency of the law must always be to narrow the field of uncertainty."
(Justice Oliver Wendell Holmes, The Common Law at 53)
18
J. D. Heydon, Limits to the Powers of Ultimate Appellate Courts, L.Q.R. 2006,
122(JUL), 399-425, 404, citing Planned Parenthood of South Eastern Pennsylvania v
Casey,505 U.S. 833, 854 (1992).
19
Abueva v. Wood, G. R. No. 21327, 14 January 1924, 45 Phil. 612.
20
Separate Opinion, Justice Reynato Puno in IBP v. Zamora, supra. Note 12.
21
Justice Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175
(1989) at 1179.
22
23
"If you want to know the law and nothing else, you must look at it as a bad man, who
cares only for the material consequences which such knowledge enables him to predict,
not as a good one, who finds his reasons for conduct, whether inside the law or outside of
it, in the vaguer sanctions of conscience." (Justice Oliver Wendell Holmes, Jr., The Path
of the Law, 10 Harv. L. R. 457 [1897])
24
Judicial decisions applying or interpreting the laws or the Constitution shall form a part
of the legal system of the Philippines. (Civil Code, Art. 8; Floresca v. Philex Mining
Corporation, G. R. No. L-30642, 30 April 1985, 136 SCRA 141)
25
Concurring Opinion, Justice John Paul Stevens, Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747, 780-781, 106 S.Ct. 2169 (1986)
26
Jano Justice Systems, Inc., v. Burton, F.Supp.2d, 2010 WL 2012941 (C.D.Ill.) (2010),
citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166,
100 L.Ed.2d 811 (1988).
27
Jano Justice Systems, Inc., v. Burton, id.
28
In a little over three years, the Court’s decisions in the instant case have swung like a
pendulum from unconstitutionality to validity. Beginning with the First Decision dated 18
November 2008, the Court initially found the subject sixteen Cityhood Laws as
unconstitutional, but reversed itself in the Second Decision dated 21 December 2009,
where the laws were declared valid. However, the Court had a change of heart and
reinstated its earlier finding of unconstitutionality in the Third Decision (SC Resolution
dated 24 August 2010, penned by Justice Antonio Carpio), but less than a year later, it
overturned the last ruling by again declaring the Cityhood Laws constitutional in the
Fourth Decision (SC Resolution dated 15 February 2011, penned by Justice Lucas
Bersamin). The Fifth Decision and latest Resolution of the Court denied with finality the
Ad Cautelam Motion for Reconsideration and reiterated that the Cityhood Laws were
constitutional (SC Resolution dated 12 April 2011 penned again by Justice Bersamin)
29
The sixteen Cityhood Laws consist of Republic Acts Nos. 9389-94, 9398, 9404-05,
9407-09, 9434-36 and 9491.
30
"A decision that has acquired finality becomes immutable and unalterable and may no
longer be modified in any respect, even if the modification is meant to correct erroneous
conclusions of fact or law and whether it will be made by the court that rendered it or by
the highest court of the land." (Labao v. Flores, G. R. No. 187984, 15 November 2010,
634 SCRA 723, citing Peña v. Government Service Insurance System, G.R. No. 159520,
19 September 2006, 502 SCRA 383, 404)
31
Republic v. Ballocanag, G. R. No. 163794, 28 November 2008, 572 SCRA 436, citing
Heirs of Maura So v. Obliosca, G. R. No. 147082, 28 January 2008, 542 SCRA 406, 421-
422.
32
FGU Insurance Corporation v. RTC of Makati, G. R. No. 161282, 23 February 2011,
citing Villa v. GSIS, G. R. No. 174642, 31 October 2009.
33
"The object of a judgment nunc pro tunc is not the rendering of a new judgment and
the ascertainment and determination of new rights, but is one placing in proper form on
the record, the judgment that had been previously rendered, to make it speak the truth, so
as to make it show what the judicial action really was, not to correct judicial errors, such
as to render a judgment which the court ought to have rendered, in place of the one it did
erroneously render, nor to supply nonaction by the court, however erroneous the
judgment may have been." (Mocorro v. Ramirez, G. R. No. 178366, 28 July 2008, 560
SCRA 362, citing Briones-Vasquez v. Court of Appeals, 450 SCRA 482, 492 [2005])
34
"Void judgments may be classified into two groups: those rendered by a court without
jurisdiction to do so and those obtained by fraud or collusion." (Legarda v. Court of
Appeals, G.R. No. 94457, 16 October 1997, 280 SCRA 642)
35
"One of the exceptions to the principle of immutability of final judgments is the
existence of supervening events. Supervening events refer to facts which transpire after
judgment has become final and executory or to new circumstances which developed after
the judgment has acquired finality, including matters which the parties were not aware of
prior to or during the trial as they were not yet in existence at that time." (Natalia Realty,
Inc. v. Court of Appeals, G. R. No. 126462, 12 November 2002, 391 SCRA 370)
36
"Under the rules of statutory construction, exceptions, as a general rule, should be
strictly but reasonably construed." (Commissioner of Internal Revenue v. CA, G. R. No.
107135, 23 February 1999, 303 SCRA 508)
37
"… In the past, however, we have recognized exceptions to this rule by reversing
judgments and recalling their entries in the interest of substantial justice and where
special and compelling reasons called for such actions."
"Notably, in San Miguel Corporation v. National Labor Relations Commission,

Galman v. Sandiganbayan, Philippine Consumers Foundation v. National
Telecommunications Commission, and Republic v. de los Angeles, we reversed
our judgment on the second motion for reconsideration, while in Vir-Jen Shipping
and Marine Services v. National Labor Relations Commission, we did so on a
third motion for reconsideration. In Cathay Pacific v. Romillo and Cosio v. de
Rama, we modified or amended our ruling on the second motion for
reconsideration. More recently, in the cases of Muñoz v. Court of Appeals, Tan
Tiac Chiong v. Hon. Cosico, Manotok IV v. Barque, and Barnes v. Padilla, we
recalled entries of judgment after finding that doing so was in the interest of
substantial justice." (Apo Fruits Corporation v. Landbank of the Philippines, G. R.
No. 164195, 12 October 2010, 632 SCRA 727)
38
Dissenting Opinion, Justice Louis Brandeis, Burnet v. Coronado Oil & Gas, Co., 285
U.S. 393, 407-408 (1932).
39
In Secretary of Justice v. Lantion, G. R. No. 139645, the Court first ordered the
Secretary of Justice to furnish private respondent Mark Jimenez, copies of the extradition
request and its supporting papers, and to give him a reasonable period within which to
file his comment with supporting evidence. (Decision dated 18 January 2000) The Court
subsequently reversed itself and declared that private respondent is bereft of the right to
notice and hearing during the evaluation stage of the extradition process. (Decision 17
October 2000)
40
In La Bugal B’laan Tribal Association v. Ramos, G. R. No. 127882, the Court first
declared some of the provisions of Republic Act No. 7942 (Philippine Mining Act of
1995) unconstitutional and void (Decision dated 27 January 2004); but on a motion for
reconsideration the ruling was later reversed and the mining law was declared
constitutional (Resolution dated 01 December 2004).
41
In Heirs of Manotok v. Barque, G. R. No. 162335 & 162605, the Court’s First Division
initially affirmed the cancellation of the Manotok title over the friar land and ordered that
the title be reconstituted in favor of the Homer L. Barque, Sr. (Decision dated 12
December 2005) After the Decision was recalled and the case remanded to the Court of
Appeals for reception of evidence (Resolution dated 18 December 2008), the Court en
banc nullified the titles of Manotok and Barque and declared the land as legally
belonging to the national government. (Decision dated 24 August 2010)
42
In Apo Fruits Corporation v. Landbank of the Philippines, G. R. No. 164105, the
Court’s Third Division ordered Landbank to pay Apo Fruits Corporation and Hijo
Plantation to pay P1,383,179,000 with 12% legal interest as just compensation for the
two companies’ expropriated lands. (Decision dated 06 February 2007) Landbank’s
motion for reconsideration was partially granted and the award of legal interest was
deleted (Decision dated 19 December 2007 and 30 April 2008), which was affirmed by
the Court en banc. (Decision dated 04 December 2009) However, the award of legal
interest was reinstated later on. (Decision dated 12 October 2010)
43
In Quinto v. COMELEC, G. R. No. 189698, the Court first declared unconstitutional
the provision in the Omnibus Election Code, as amended by Republic Act No. 9369,
considering public appointive officials as ipso facto resigned from the filing of their
certificate of candidacy. (Decision 01 December 2009) The Court again reversed itself
and declared the same provision as "not unconstitutional." (Resolution dated 22 February
2010)
44
Republic Act No. 7160, Sec. 450.
45
"Requisites for Creation. — (a) A municipality or a cluster of barangays may be
converted into a component city if it has a locally generated average annual income, as
certified by the Department of Finance, of at least One hundred million pesos
(P100,000,000.00) for the last two (2) consecutive years based on 2000 constant prices,
and if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100) square kilometers, as

certified by the Land Management Bureau; or
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants,
as certified by the National Statistics Office.
xxx xxx xxx
(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, transfers, and non-recurring income." (RA 9009,
Sec. 1, amending Sec. 450 of the LGC; emphasis supplied)
46
Concurring Opinion, Justice Romeo Callejo, Sr., Lambino v. COMELEC, G. R. No.
174153, 25 October 2006, 505 SCRA 160, citing London Street Tramways Co., Ltd. v.
London County Council, [1898] A.C. 375, in COOLEY, A TREATISE ON THE
CONSTITUTIONAL LIMITATIONS 117-118.
47
Concurring Opinion, Justice Romeo Callejo, Sr., Lambino v. COMELEC, supra.
48
G.R. No. 143781, 27 February 2002, 378 SCRA 172.
49
U. S. v. Lee, 106 US 196, 261 (1882)
50
"Rightly or wrongly, the belief is widely held by the practicing profession that this
Court no longer respects impersonal rules of law but is guided in these matters by
personal impressions which from time to time may be shared by a majority of Justices.
Whatever has been intended, this Court also has generated an impression in much of the
judiciary that regard for precedents and authorities is obsolete, that words no longer mean
what they have always meant to the profession, that the law knows no fixed principles.
…"
"… Whenever decisions of one court are reviewed by another, a percentage of

them are reversed. That reflects a difference in outlook normally found between
personnel comprising different courts. However, reversal by a higher court is not
proof that justice is thereby better done. There is no doubt that if there were a
super-Supreme Court, a substantial proportion of our reversals of state courts
would also be reversed. We are not final because we are infallible, but we are
infallible only because we are final." (Concurring Opinion of Justice Robert
Jackson, Brown v. Allen, 344 U.S. 443 [1953]; emphasis supplied).
51
Spouses Sadik v. Casar, A. M. No. MTJ-95-1053, 02 January 1997, 266 SCRA 1,
citing Talens-Dabon v. Arceo, Administrative Matter No. RTJ-96-1336, 25 July 1996.
52
53
Association, et al., v. Ramos, id.
54
A lamenting and denunciatory complaint; a doleful story; or a dolorous tirade.
(Webster’s Third New International Dictionary [Merriam Webster 1993] at 1213)
55
Dissenting Opinion, Circuit Judge Tam, In Re: Estate of Burrogh, 475 F.2d 370, 154
U.S.App.D.C. 259 (1973).
SUPREME COURT
Manila
EN BANC
A.C. No. 4808 November 22, 2011
TERESITA T. BAYONLA, Complainant,

vs.
ATTY. PURITA A. REYES, Respondent.
DECISION
BERSAMIN, J.:
Rule 16.03 - A lawyer shall deliver the funds and property of his client when due or upon
demand. However, he shall have a lien over the funds and may apply so much thereof as may be
necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his
client. He shall also have a lien to the same extent on all judgments and executions he has
secured for his client as provided for in the Rules of Court.
- Code of Professional Responsibility.
This canon of professional responsibility is at the center of this administrative complaint for
disbarment for gross dishonesty, deceit, conversion, and breach of trust filed against Atty. Purita
A. Reyes by Teresita T. Bayonla, her client.1
Antecedents
Petra Durban and Paz Durban were sisters who had jointly owned a parcel of land situated in
Butuan City in their lifetimes. They died without leaving a will. Their land was thereafter
expropriated in connection with the construction of the Bancasi Airport. An expropriation
compensation amounting to P2,453,429.00 was to be paid to their heirs. Bayonla and her uncle,
Alfredo Tabada (Alfredo), were the compulsory heirs of Paz, being, respectively, Paz’s
granddaughter and son.2
On June 22, 1997, Bayonla charged Atty. Reyes with gross dishonesty, deceit, conversion, and
breach of trust. Bayonla alleged that on October 21, 1993, she and Alfredo had engaged the legal
services of Atty. Reyes to collect their share in the expropriation compensation from the Air
Transportation Office (ATO), Cagayan De Oro City,3 agreeing to her attorney’s fees of 10% of
whatever amount would be collected; that in November 1993, Atty. Reyes had collected P1
million from the ATO; that Bayonla’s share, after deducting Atty. Reyes’ attorney’s fees, would
be P75,000.00, but Atty. Reyes had delivered to her only P23,000.00, and had failed to deliver
the balance of P52,000.00 despite repeated demands; that on June 5, 1995, Atty. Reyes had
collected the amount of P121,119.11 from the ATO; that Bayonla’s share, after deducting Atty.
Reyes’ attorney’s fees, would be P109,007.20, but Atty. Reyes had handed her only P56,500.00,
and had failed to deliver the balance of P52,507.20; and that Atty. Reyes should be disbarred for
depriving her of her just share.4
In her comment dated February 10, 1998,5 Atty. Reyes admitted that Bayonla and Alfredo had
engaged her legal services for the purpose of collecting their share in the expropriation
compensation; that as consideration for her services, Bayonla and Alfredo had agreed upon a
40% contingent fee for her; that she had given to Bayonla more than what had been due to her;
that Alfredo had received from the ATO the check for the second release corresponding to the
share of both Bayonla and Alfredo; that Alfredo had gotten more than Bayonla out of the second
release; that on June 5, 1995 she had received out of the second release by the ATO only her
40% contingent fee; that Bayonla and Alfredo had agreed to bear the expenses for the collection
of their share; that she had incurred travel and other expenses in collecting such share; and that
she should be absolved from liability arising from the complaint.
On June 29, 1998, the Court referred the complaint to the Integrated Bar of the Philippines (IBP)
for investigation, report, and recommendation.6
On April 20, 1999, IBP Commissioner Lydia A. Navarro (Commissioner Navarro) rendered a
report,7 whereby she found and recommended against Atty. Reyes as follows:
In so far as this case of disbarment is concerned, the issue hinges only on the complainant’s
position; one of the heirs of Paz Durban whose legal services of the respondent was not revoked.
The parties were required to submit documents relative to their respective defenses (sic)
specially the actual amounts released by ATO, actual amount due to the complainant as her
share, the remittances made by the respondent to the complainant of her share and receipts to
prove the same.
Unfortunately, only the respondent filed an answer without the necessary documents required of
them and attached only a xerox copy of the computation made by Atty. Ismael Laya for the heir
of Pedro Durban which had already been previously attached to the records of this case.
In the said computation it appears that for the release on February 17, 1993, the heirs of Durban
received P84,852.00 and for the second release each of them as well as the complainant was
entitled P121,119.11. It could be inferred from here that complainant was supposed to received
(sic) P205,971.11 as her share.
Inasmuch as the attorney’s fees of 40% was (sic) supported by evidence instead of (sic)
complainant’s allegation of ten [10%] percent; then respondent was entitled to P82,388.45 as
attorney’s fees; leaving a balance of P123,582.66 due to the complainant.
Respondent’s allegation that she gave more than what was alleged by the complainant is
untenable for she did not submit evidence to prove the same, therefore, as it is complainant’s
allegation that she received only P79,000.00 for her share as a whole shall be considered for the
moment until such time that proofs to the contrary shall have been submitted.
Considering that complainant was supposed to receive the amount due her which was
P123,582.66 and actually received only P79,000.00; then respondent still has to remit to
complainant the amount of P44,582.66.
From the records of this case respondent alleged that she only collected the 40% attorney’s fees
for the second release whereby Alfredo Tabada the other heir of Paz Durban received the check
from ATO and got a large part of the same. Respondent did not mention how much she got as
attorney’s fees against complainant’s share but on the whole amounting to P496,895.00 which is
unfair to the complainant.
As counsel for the heirs of Paz Durban, complainant herein should have been advised by the
respondent and given a breakdown of whatever amount was received or came to her knowledge
as complainant’s counsel. Short of the foregoing, respondent violated Rule 16.01 Canon 16
Chapter III of the Code of Professional Responsibility; to wit:
"Rule 16.01 – A lawyer shall account for all money or property collected or received for or from
the client."
Respondent was given a chance to rectify whatever errors or misgivings (sic) she had done for
her client but she unfortunately failed to do so and did not comply with the Order dated October
29, 1998.
Wherefore, in view of the foregoing, the Undersigned respectfully recommends that the
respondent be required to render an accounting or inventory duly confirmed by the complainant
of all the collected shares due the complainant and remit to the latter the said amount of
P44.582.66;
Until such time that respondent had complied with the aforementioned, she is suspended from
the practice of her legal profession.
Respectfully submitted.
On June 19, 1999, the IBP Board of Governors adopted and approved the report of
Commissioner Navarro through Resolution No. XIII-99-165.8
Atty. Reyes moved for reconsideration, but on September 27, 1999 the IBP Board of Governors
denied her motion for reconsideration through Resolution No. XIV-99-117.9
Atty. Reyes then filed a motion for reinvestigation. However, through its Resolution No. XV-
2001-111 adopted on July 28, 2001, the IBP Board of Governors denied the motion for
reinvestigation for lack of jurisdiction, stating that the matter had already been endorsed to the
Court.10
On July 30, 2002, the Court directed the IBP Board of Governors to report on whether Atty.
Reyes had already accounted for and remitted the amount of P44,582.66 to Bayonla.11
On August 22, 2002, the IBP Board of Governors informed the Court that per the manifestation
of Bayonla’s counsel Atty. Reyes had not yet rendered an accounting and had not yet remitted
the amount of P44,582.66 to Bayonla.12
Through her manifestation dated September 4, 2002 to the Court,13 Atty. Reyes posed some
queries, as follows: (a) whether she could be compelled to pay the amount of P44,582.66 to
Bayonla even if the latter’s claims had been based on perjured statements; (b) whether the
payment of the amount would operate to dismiss the estafa case previously filed by Bayonla
against her for allegedly failing to deliver the balance of Bayonla’s share; and (c) whether she
could deposit the amount of P44,582.66 with either the IBP Board of Governors or the Court.
Atty. Reyes also stated in the manifestation that the IBP Board of Governors did not accord to
her the right to confront Bayonla during the investigation conducted by the IBP Board of
Governors; that Bayonla’s counsel had induced Bayonla to file the estafa charge against her; and
that this had prompted her to initiate a disbarment complaint against Bayonla’s counsel.14
On May 24, 2010, the Office of the Bar Confidant (OBC) recommended the final resolution of
this case.15 The recommendation was noted by the Court on June 29, 2010.16
Issue
Whether or not the findings and recommendations of the IBP Board of Governors were proper.
Ruling
We affirm the findings of the IBP Board of Governors, which were supported by the records, but
we modify the sanctions to be imposed on Atty. Reyes.
I
Respondent was guilty of violating the canons
of the Code of Professional Responsibility
Canon 16 of the Code of Professional Responsibility requires that a lawyer shall hold in trust all
moneys and properties of her client that may come into her possession. Rule 16.01 of Canon 16
imposes on the lawyer the duty to account for all money or property collected or received for or
from the client. Rule 16.03 of Canon 16 demands that the lawyer shall deliver the funds and
property of his client when due or upon demand, subject to the lawyer’s lien over the funds, or
the lawyer’s option to apply so much of the funds as may be necessary to satisfy the lawful fees
and disbursements, giving notice promptly thereafter to the client.
The canons are appropriate considering that the relationship between a lawyer and her client is
highly fiduciary, and prescribes on a lawyer a great degree of fidelity and good faith. There is no
question that the money or property received by a lawyer for her client properly belongs to the
latter.17 Conformably with these canons of professional responsibility, we have held that a
lawyer is obliged to render an accounting of all the property and money she has collected for her
client. This obligation includes the prompt reporting and accounting of the money collected by
the lawyer by reason of a favorable judgment to his client.18
Based on the records, Bayonla and her uncle would each receive the amount of P84,852.00 out
of the first release, and the amount of P121,119.11 out of the second release. Her total share from
the two releases was P205,971.11. With Atty. Reyes being entitled to P82,388.44 as attorney’s
fees, the equivalent of 40% of Bayonla’s share, the net share of Bayonla was P123,582.67. Yet,
Atty. Reyes actually delivered to her only P79,000.00,19 which was short by P44,582.67. Despite
demands by Bayonla and despite the orders from the IBP Board of Governors for her to remit the
shortage,20 Atty. Reyes refused to do so.
By not delivering Bayonla’s share despite her demand, Atty. Reyes violated the aforestated
canons. The money collected by Atty. Reyes as the lawyer of Bayonla was unquestionably
money held in trust to be immediately turned over to the client.21 The unjustified withholding of
money belonging to the client warrants the imposition of disciplinary sanctions on the lawyer.22
Without doubt, Atty. Reyes’ failure to immediately account for and to deliver the money upon
demand was deceit, for it signified that she had converted the money to her own use, in violation
of the trust Bayonla had reposed in her. It constituted gross misconduct for which the penalty of
suspension from the practice of law became justified pursuant to Section 27, Rule 138 of the
Rules of Court, to wit:
Section 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor. – A

member of the bar may be disbarred or suspended from his office as attorney by the Supreme
Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral
conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation
of the oath which he is required to take before admission to practice, or for a wilful disobedience
appearing as an attorney for a party to a case without authority so to do. The practice of soliciting
cases at law for the purpose of gain, either personally or through paid agents or brokers,
constitutes malpractice.
The disbarment or suspension of a member of the Philippine Bar by a competent court or other
disciplinary agency in a foreign jurisdiction where he has also been admitted as an attorney is a
ground for his disbarment or suspension if the basis of such action includes any of the acts
hereinabove enumerated.
The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie
evidence of the ground for disbarment or suspension. (As amended by SC Resolution dated
February 13, 1992.)
II
Pendency of other cases not an obstacle
to administrative proceeding against respondent
The filing of the perjury charge by Atty. Reyes against Bayonla and of the estafa charge by
Bayonla against Atty. Reyes could not halt or excuse the duty of Atty. Reyes to render an
accounting and to remit the amount due to Bayonla. Nor did the pendency of such cases inhibit
this administrative matter from proceeding on its due course. It is indisputable that the pendency
of any criminal charges between the lawyer and her client does not negate the administrative
proceedings against the lawyer. We explained why in Suzuki v. Tiamson,23 to wit:
The settled rule is that criminal and civil cases are different from administrative matters, such
that the disposition in the first two will not inevitably govern the third and vice versa. In this
light, we refer to this Court’s ruling in Berbano vs. Barcelona, citing In re Almacen, where it was
held:
Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely
criminal, they do not involve a trial of an action or a suit, but rather investigations by the Court
into the conduct of one of its officers. Not being intended to inflict punishment, [they are] in no
sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein.
[They] may be initiated by the Court motu proprio. Public interest is [their] primary objective,
and the real question for determination is whether or not the attorney is still a fit person to be
allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely
calls upon a member of the Bar to account for his actuations as an officer of the Court with the
end in view of preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by their misconduct have
prove[n] themselves no longer worthy to be entrusted with the duties and responsibilities
pertaining to the office of an attorney.
Hence, our only concern in the instant case is the determination of respondent’s administrative
liability and our findings herein should not in any way be treated as having any material bearing
on any other judicial action which the parties may choose to file against each other. [emphasis
supplied]
Relevantly, we have also emphasized in Gatchalian Promotions Talents Pool, Inc. v. Naldoza 24
that –
xxx a finding of guilt in the criminal case will not necessarily result in a finding of liability in the
administrative case. Conversely, respondent’s acquittal does not necessarily exculpate him
administratively. In the same vein, the trial court’s finding of civil liability against the respondent
will not inexorably lead to a similar finding in the administrative action before this Court.
Neither will a favorable disposition in the civil action absolve the administrative liability of the
lawyer.
It serves well to mention, lastly, that the simultaneous pendency of an administrative case and a
judicial proceeding related to the cause of the administrative case, even if the charges and the
evidence to be adduced in such cases are similar, does not result into or occasion any unfairness,
or prejudice, or deprivation of due process to the parties in either of the cases.25
III
No denial of due process to respondent
Atty. Reyes contends that she was denied her right to due process because the IBP Board of
Governors did not permit her to personally confront the complainant.
We do not consider Atty. Reyes’s contention valid. She was accorded full due process, for she in
fact participated in all stages of the proceedings.
It is true that a lawyer shall not be disbarred or suspended from the practice of law until she has
had full opportunity upon reasonable notice to answer the charges against her, to produce
witnesses in her behalf, and to be heard by herself or counsel.26 Contrary to Atty. Reyes’
insistence, however, the IBP Board of Governors was under no legal obligation to conduct a
trial-type proceeding at which she could have personally confronted Bayonla. In other words, the
lack of such proceeding neither diminished her right to due process nor deprived her of the right.
A formal investigation entailing notice and hearing is required in administrative proceedings for
disbarment, but the imperative need of notice and hearing does not always mean the holding of
an adversarial trial-type proceeding. Due process is still satisfied when the parties are afforded
the reasonable opportunity to be heard and to submit evidence in support of their respective
sides.27 As the Court said in Samalio v. Court of Appeals:28
Due process in an administrative context does not require trial-type proceedings similar to those
in courts of justice. Where opportunity to be heard either through oral arguments or through
pleadings is accorded, there is no denial of procedural due process. A formal or trial-type hearing
is not at all times and in all instances essential. The requirements are satisfied where the parties
are afforded fair and reasonable opportunity to explain their side of the controversy at hand. The
standard of due process that must be met in administrative tribunals allows a certain degree of
latitude as long as fairness is not ignored. In other words, it is not legally objectionable for being
violative of due process for an administrative agency to resolve a case based solely on position
papers, affidavits or documentary evidence submitted by the parties as affidavits of witnesses
may take the place of their direct testimony.
In this case, petitioner was heard through the various pleadings which he filed with the Board of
Discipline of the BID when he filed his answer and two motions to dismiss, as well as other
motions and papers. He was also able to participate in all stages of the administrative proceeding.
He was able to elevate his case to the Secretary of Justice and, subsequently, to the CSC by way
of appeal.
We have consistently held that the essence of due process is simply the opportunity to be heard
or, as applied to administrative proceedings, the opportunity to explain one’s side or the
opportunity to seek a reconsideration of the action or ruling complained of. And any seeming
defect in its observance is cured by the filing of a motion for reconsideration. Denial of due
process cannot be successfully invoked by a party who has had the opportunity to be heard on his
motion for reconsideration. [bold emphasis supplied]
Nevertheless, the IBP Board of Governors actually conducted a formal investigation of the
complaint against Atty. Reyes upon the directive of the Court. In her formal investigation of the
complaint, Commissioner Navarro allowed both parties to submit their respective proofs on the
actual amounts released by the ATO, the amounts due to Bayonla as her share, Atty. Reyes’
corresponding contingent fees, the remittances by Atty. Reyes to Bayonla, and the receipts
showing such remittances.29 In due course, Atty. Reyes submitted her written answer, attaching
to the answer the documents supporting her defenses.30 Commissioner Navarro took all of Atty.
Reyes’ submissions into good and proper account, as borne out by her report.31 And even after
the IBP Board of Governors had adopted Commissioner Navarro’s report (and its
recommendation), Atty. Reyes was still afforded the fair opportunity to challenge the adverse
findings by filing her motion for reconsideration, although such motion was ultimately resolved
against her.32
IV
Sanction
The penalty for gross misconduct consisting in the failure or refusal despite demand of a lawyer
to account for and to return money or property belonging to a client has been suspension from
the practice of law for two years. In Almendarez, Jr. v. Langit,33 the lawyer who withdrew the
rentals pertaining to his client totaling P255,000.00 without the knowledge of the client and who
ignored the demand of the client to account for and to return the amount was suspended from the
practice of law for two years. In Mortera v. Pagatpatan,34 the lawyer received P155,000.00 from
the adversary of his clients as partial payment of a final and executory decision in favor of the
clients pursuant to a secret arrangement between the lawyer and the adversary, and deposited the
amount to the lawyer’s personal bank account without the knowledge of the clients; the lawyer
thereafter refused to surrender the money to his clients. The suspension of the lawyer for two
years from the practice of law was ordered by the Court. In Small v. Banares,35 a similar penalty
of suspension for a period of two years from the practice of law was imposed on a lawyer who
had failed to file a case for the purpose of which he had received an amount of P80,000.00, and
to return the amount upon demand. In Barcenas v. Alvero,36 the Court suspended for a period of
two years from the practice of law a lawyer who had failed to immediately account for and to
return P300,000.00 received from a client for the purpose of depositing it in court, after the
lawyer had been found not to have deposited the money in court.
Considering that the sin of Atty. Reyes had striking resemblance with the sins thus sanctioned in
the aforementioned precedents, the proper penalty for her is suspension from the practice of law
for two years, with warning that a similar offense by her will be dealt with more severely.
Atty. Reyes is further obliged to pay to Bayonla the amount of P44,582.67, which the IBP Board
of Governors found to be still unpaid, by way of restitution. Although the Court renders this
decision in an administrative proceeding primarily to exact the ethical responsibility on a
member of the Philippine Bar, the Court’s silence about the respondent lawyer’s legal obligation
to restitute the complainant will be both unfair and inequitable. No victim of gross ethical
misconduct concerning the client’s funds or property should be required to still litigate in another
proceeding what the administrative proceeding has already established as the respondent’s
liability. That has been the reason why the Court has required restitution of the amount involved
as a concomitant relief in the cited cases of Mortera v. Pagatpatan, supra, Almendarez, Jr. v.
Langit, supra, and Small v. Banares, supra.
In addition, Atty. Reyes is liable for interest of 12% per annum reckoned from June 22, 1997, the
date when she was formally charged with disbarment. This rate of interest was prescribed by the
Court in Almendarez, Jr. v. Langit and Small v. Banares.
WHEREFORE, the Court FINDS AND PRONOUNCES ATTY. PURITA A. REYES guilty of
violating Rule 16.01 and Rule 16.03 of Canon 16 of the Code of Professional Responsibility, and
SUSPENDS her from the practice of law for a period of two years effective upon receipt of this
Decision, with warning that a similar offense by her will be dealt with more severely.
The Court ORDERS Atty. Reyes to pay to complainant Teresita T. Bayonla within 30 days from
receipt of this Decision the amount of P44,582.67, with interest of 12% per annum from June 22,
1997, and to render unto the complainant a complete written accounting and inventory of: - (a)
the amounts she had collected from the Air Transportation Office as expropriation compensation;
(b) the total amount due to the complainant; (c) the total amount she had actually remitted to the
complainant; and (d) the amount she had deducted as her contingent fee vis-à-vis the
complainant.1âwphi1
Within the same period of compliance, Atty. Reyes shall submit to the Court, through the Office
of the Bar Confidant, authentic written proof that her accounting, inventory, and payment were
furnished to and received by the complainant in due course.
This Decision is without prejudice to any pending or contemplated proceedings against Atty.
Reyes.
Let this Decision be disseminated to all lower courts and to the Integrated Bar of the Philippines,
with a copy of it to be included in Atty. Reyes’ file in the Office of the Bar Confidant.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

TERESITA J. LEONARDO-DE (On Leave)

CASTRO ARTURO D. BRION


MARIA LOURDES P. A. SERENO BIENVENIDO L. REYES

ESTELA M. PERLAS-BERNABE
Associate Justice
Footnotes
1
Rollo, pp. 3-4.
2
Id., pp. 32-33.
3
Id., p. 5.
4
Id., pp. 3-4.
5
Id., pp. 24-28.
6
Id., p. 94.
7
Id., pp. 97-102.
8
Id., p. 96.
9
Id., p. 105.
10
Id., p. 107.
11
Id., pp. 146-147.
12
Id., pp. 148-149.
13
Id., pp. 153-155.
14
Id.
15
Id., pp. 190-191.
16
Id., p. 192.
17
Angeles v. Uy, Jr., A.C. No. 5019, April 6, 2000, 330 SCRA 6, 17.
18
Id., at p. 20; Marquez v. Meneses, Jr., Adm. Case No. 675, December 17, 1999, 321
SCRA 1, 6.
19
Rollo, pp. 61 and 100-101.
20
Id., p. 96.
21
Marquez v. Meneses, Jr., supra, note 18, at p. 5.
22
Macarilay v. Serina, A.C. No. 6591, May 4, 2005, 458 SCRA 12, 25.
23
Adm. Case No. 6542, September 30, 2005, 471 SCRA 129, 141.
24
Adm. Case No. 4017, September 29, 1999, 315 SCRA 406, 413.
25
Saludo, Jr. v. Court of Appeals, G.R. No. 121404, May 3, 2006, 489 SCRA 14, 19.
26
27
Pormento, Sr. v. Pontevedra, A.C. No. 5128, March 31, 2005, 454 SCRA 167, 174.
28
G.R. No. 140079, March 31, 2005, 454 SCRA 462, 472-473.
29
Rollo, p. 176.
30
Id., pp. 177-186.
31
Id., pp. 99-101.
32
Id., pp. 105 and 107-113.
33
A.C. No. 7057, July 25, 2006, 496 SCRA 402.
34
A.C. No. 4562, June 15, 2005, 460 SCRA 99.
35
A.C. No. 7021, February 21, 2007, 516 SCRA 323.
36
A.C. No. 8159, April 23, 2010, 619 SCRA 1.

SUPREME COURT
Manila
EN BANC
G.R. No. 153569 January 24, 2012
LOLITA S. CONCEPCION, Petitioner,

vs.
MINEX IMPORT CORPORATION/MINERAMA CORPORATION, KENNETH
MEYERS, SYLVIA P. MARIANO, and VINA MARIANO, Respondents.
DECISION
BERSAMIN, J.:
The employer may validly dismiss for loss of trust and confidence an employee who commits an
act of fraud prejudicial to the interest of the employer. Neither a criminal prosecution nor a
conviction beyond reasonable doubt for the crime is a requisite for the validity of the dismissal.
Nonetheless, the dismissal for a just or lawful cause must still be made upon compliance with the
requirements of due process under the Labor Code; otherwise, the employer is liable to pay
nominal damages as indemnity to the dismissed employee.
Antecedents
Respondent Minex Import-Export Corporation (Minex) engaged in the retail of semi-precious

stones, selling them in kiosks or stalls installed in various shopping centers within Metro Manila.
It employed the petitioner initially as a salesgirl,1 rotating her assignment among nearly all its
outlets. It made her a supervisor in July 1997, but did not grant her any salary increase. On
October 23, 1997, respondent Vina Mariano, an Assistant Manager of Minex, assigned the
petitioner to the SM Harrison Plaza kiosk with the instruction to hold the keys of the kiosk.
Working under her supervision there were salesgirls Cristina Calung and Lida Baquilar.
On November 9, 1997, a Sunday, the petitioner and her salesgirls had sales of crystal items
totaling P39,194.50. At the close of business that day, they conducted a cash-count of their sales
proceeds, including those from the preceding Friday and Saturday, and determined their total for
the three days to be P50,912.00. The petitioner wrapped the amount in a plastic bag and
deposited it in the drawer of the locked wooden cabinet of the kiosk.
At about 9:30 am of November 10, 1997, the petitioner phoned Vina Mariano to report that the
P50,912.00 was missing, explaining how she and her salesgirls had placed the wrapped amount
at the bottom of the cabinet the night before, and how she had found upon reporting to work that
morning that the contents of the cabinet were in disarray and the money already missing.
Later, while the petitioner was giving a detailed statement on the theft to the security investigator
of Harrison Plaza, Vina and Sylvia Mariano, her superiors, arrived with a policeman who
immediately placed the petitioner under arrest and brought her to Precinct 9 of the Malate Police
Station. There, the police investigated her. She was detained for a day, from 11:30 am of
November 10, 1997 until 11:30 am of November 11, 1997, being released only because the
inquest prosecutor instructed so.
On November 12, 1997, the petitioner complained against the respondents for illegal dismissal in
the Department of Labor and Employment.
On November 14, 1997, Minex, through Vina, filed a complaint for qualified theft against the
petitioner in the Office of the City Prosecutor in Manila.
To the charge of qualified theft, the petitioner insisted on her innocence, reiterating that on
November 9, 1997 she, together with Calung and Baquilar, had first counted the cash before
placing it in a plastic bag that she deposited inside the drawer of the cabinet with the knowledge
of Calung and Baquilar. She explained that on that night Baquilar had left for home ahead,
leaving her and Calung to close the kiosk at around 8:00 pm; that at exactly 8:01 pm she
proceeded to SM Department Store in Harrison Plaza to wait for her friends whom she had
previously walked with to the LRT station; that she noticed upon arriving at the kiosk the next
morning that the cabinet that they had positioned to block the entrance of the kiosk had been
slightly moved; and that she then discovered upon opening the cabinet that its contents, including
the cash, were already missing.
Calung executed a sinumpaang salaysay, however, averring that she had left the petitioner alone
in the kiosk in the night of November 9, 1997 because the latter had still to change her clothes;
and that that was the first time that the petitioner had ever asked to be left behind, for they had
previously left the kiosk together.
Vina declared that the petitioner did not call the office of Minex for the pick-up of the
P39,194.50 cash sales on Sunday, November 9, 1997, in violation of the standard operating
procedure (SOP) requiring cash proceeds exceeding P10,000.00 to be reported for pick-up if the
amount could not be deposited in the bank.
After the preliminary investigation, the Assistant Prosecutor rendered a resolution dated
February 4, 1998 finding probable cause for qualified theft and recommending the filing of an
information against the petitioner.2 Thus, she was charged with qualified theft in the Regional
Trial Court (RTC) in Manila, docketed as Criminal Case No. 98-165426.
The petitioner appealed by petition for review to the Department of Justice (DOJ), but the DOJ
Secretary denied her petition for review on July 4, 2001.3
As to the petitioner’s complaint for illegal dismissal, Labor Arbiter Jose G. de Vera rendered his
decision dated December 15, 1998, viz:4
WHEREFORE, all the foregoing considered, judgment is hereby rendered in favor of the
complainant and against the respondents declaring the dismissal of the latter from work illegal
and ordering her reinstatement to her former work position with full backwages counted from
November 10, 1997 until her actual reinstatement without loss of seniority or other employees’
rights and benefits.
Respondents are likewise ordered to pay complainant her monetary claims above as well as
moral damages of P50,000.00 and exemplary damages of P20,000.00.
Lastly, respondents are liable to pay ten percent (10%) of the total award as and by way of
payment of attorney’s fees.
SO ORDERED.
On appeal by the respondents, the National Labor Relations Commission (NLRC) reversed the
decision of the Labor Arbiter on December 28, 2000, declaring that the petitioner had not been
dismissed, but had abandoned her job after being found to have stolen the proceeds of the sales;
and holding that even if she had been dismissed, her dismissal would be justifiable for loss of
trust and confidence in the light of the finding of probable cause by the DOJ and the City
Prosecutor and the filing of the information for qualified theft against her.5
The NLRC deleted the awards of backwages, service incentive leave pay, holiday pay and 13th
month pay, moral and exemplary damages and attorney’s fees, opining that the petitioner would
be entitled to an award of damages only when the dismissal was shown to be effected in bad faith
or fraud or was an act oppressive to labor, or was done in a manner contrary to good morals,
good customs, or public policy.6
After the NLRC denied her motion for reconsideration on March 16, 2001, the petitioner
challenged the reversal by the NLRC in the Court of Appeals (CA) on certiorari, claiming that
the NLRC thereby committed grave abuse of discretion amounting to excess of jurisdiction for
finding that there had been lawful cause to dismiss her; and insisting that the NLRC relied on
mere suspicions and surmises, disregarding not only her explanations that, if considered, would
have warranted a judgment in her favor but even the findings and disquisitions of the Labor
Arbiter, which were in full accord with pertinent case law.
On December 20, 2001,7 however, the CA sustained the NLRC mainly because of the DOJ
Secretary’s finding of probable cause for qualified theft, holding:
With the finding of probable cause not only by the Investigating Prosecutor but by the Secretary
of Justice no less, it cannot be validly claimed, as the Petitioner does, in her Petition at bench,
that there is no lawful cause for her dismissal. The felony of qualified theft involves moral
turpitude.
"Respondent cannot use social justice to shield wrongdoing. He occupied a position of trust and
confidence. Petitioner relied on him to protect the properties of the company. Respondent
betrayed this trust when he ordered the subject lamp posts to be delivered to the Adelfa
Homeowners’ Association. The offense he committed involves moral turpitude. Indeed, a City
Prosecutor found probable cause to file an information for qualified theft against him." (United
South Dockhandlers, Inc., versus NLRC, et al., 267 SCRA 401, at page 407, supra)
Admittedly, there is no direct evidence that the Petitioner took the money from the drawer in the
cabinet in the Kiosk. But direct evidence that the Petitioner took the money is not required for
the Petitioner to be lawfully dismissed for the loss of the money of the Private Respondent
corporation. If circumstantial evidence is sufficient on which to anchor a judgment of conviction
in criminal cases under Section 4, Rule 133 of the Revised Rules of Evidence, there is no cogent
reason why circumstantial evidence is not sufficient on which to anchor a factual basis for the
dismissal of the Petitioner for loss of confidence.
IN THE LIGHT OF ALL THE FOREGOING, the Petition at bench is denied due course and is
hereby DISMISSED.
SO ORDERED.
On May 13, 2002, the CA denied the petitioner’s motion for reconsideration.8
Issues
In her appeal, the petitioner submits that:
THE COURT OF APPEALS ERRED IN FINDING THAT THERE WAS NO ILLEGAL

DISMISSAL IN THE CASE AT BAR, PARTICULARLY IN FINDING THAT:
1. THERE WAS JUST CAUSE FOR HER DISMISSAL, AND

2. RESPONDENT NEED NOT AFFORD THE PETITIONER DUE PROCESS TO
PETITIONER.
Ruling
The petition lacks merit.
The decisive issue for resolution is whether or not the petitioner was terminated for a just and
valid cause.
To dismiss an employee, the law requires the existence of a just and valid cause. Article 282 of
the Labor Code enumerates the just causes for termination by the employer: (a) serious
misconduct or willful disobedience by the employee of the lawful orders of his employer or the
latter’s representative in connection with the employee’s work; (b) gross and habitual neglect by
the employee of his duties; (c) fraud or willful breach by the employee of the trust reposed in
him by his employer or his duly authorized representative; (d) commission of a crime or offense
by the employee against the person of his employer or any immediate member of his family or
his duly authorized representative; and (e) other causes analogous to the foregoing.
The NLRC held that the termination of the petitioner was due to loss of trust and confidence.
Sustaining the NLRC, the CA stated:
With the finding of probable cause not only by the investigating prosecutor but by the Secretary
of Justice no less, it cannot be validly claimed, as the Petitioner does, in her Petition at bench,
that there is no lawful cause for her dismissal xxx.
xxx
Admittedly, there is no direct evidence that the Petitioner took the money from the drawer in the
cabinet in the Kiosk. But direct evidence that the Petitioner took the money is not required for
the Petitioner to be lawfully dismissed for the loss of the money of the Private Respondent
corporation. If circumstantial evidence is sufficient on which to anchor a judgment of conviction
in criminal cases under Section 4, Rule 133 of the Revised Rules of Evidence, there is no cogent
reason why circumstantial evidence is not sufficient on which to anchor a factual basis for the
dismissal of the Petitioner for loss of confidence.9
The petitioner still argues, however, that there was no evidence at all upon which Minex could
validly dismiss her considering that she had not yet been found guilty beyond reasonable doubt
of the crime of qualified theft.
The petitioner’s argument is not novel. It has been raised and rejected many times before on the
basis that neither conviction beyond reasonable doubt for a crime against the employer nor
acquittal after criminal prosecution was indispensable. Nor was a formal charge in court for the
acts prejudicial to the interest of the employer a pre-requisite for a valid dismissal.
In its1941 ruling in National Labor Union, Inc. v. Standard Vacuum Oil Company,10 the Court
expressly stated thus:
xxx The conviction of an employee in a criminal case is not indispensable to warrant his
dismissal by his employer. If there is sufficient evidence to show that the employee has been
guilty of a breach of trust, or that his employer has ample reason to distrust him, it cannot
justly deny to the employer the authority to dismiss such employee. All that is incumbent
upon the Court of Industrial Relations (now National Labor Relations Commission) to determine
is whether the proposed dismissal is for just cause xxx. It is not necessary for said court to find
that an employee has been guilty of a crime beyond reasonable doubt in order to authorize
his dismissal. (Emphasis supplied)
In Philippine Long Distance Telephone Co.(BLTB Co.) vs. NLRC,11 the Court held that the
acquittal of the employee from the criminal prosecution for a crime committed against the
interest of the employer did not automatically eliminate loss of confidence as a basis for
administrative action against the employee; and that in cases where the acts of misconduct
amounted to a crime, a dismissal might still be properly ordered notwithstanding that the
employee was not criminally prosecuted or was acquitted after a criminal prosecution.
In Batangas Laguna Tayabas Bus Co. v. NLRC,12 the Court explained further, as follows:
Fraud or willful breach of trust reposed upon an employee by his employer is a recognized cause
for termination of employment and it is not necessary that the employer should await the
employee’s final conviction in the criminal case involving such fraud or breach of trust
before it can terminate the employee’s services. In fact, even the dropping of the charges or
an acquittal of the employee therefrom does not preclude the dismissal of an employee for
acts inimical to the interests of the employer.
To our mind, the criminal charges initiated by the company against private respondents and
the finding after preliminary investigation of their prima facie guilt of the offense charged
constitute substantial evidence sufficient to warrant a finding by the Labor Tribunal of the
existence of a just cause for their termination based on loss of trust and confidence. The
Labor Tribunal need not have gone further as to require private respondent’s conviction of the
crime charged, or inferred innocence on their part from their release from detention, which was
mainly due to their posting of bail. (Emphasis supplied)
Indeed, the employer is not expected to be as strict and rigorous as a judge in a criminal trial in
weighing all the probabilities of guilt before terminating the employee. Unlike a criminal case,
which necessitates a moral certainty of guilt due to the loss of the personal liberty of the accused
being the issue, a case concerning an employee suspected of wrongdoing leads only to his
termination as a consequence. The quantum of proof required for convicting an accused is thus
higher – proof of guilt beyond reasonable doubt – than the quantum prescribed for dismissing an
employee – substantial evidence. In so stating, we are not diminishing the value of employment,
but only noting that the loss of employment occasions a consequence lesser than the loss of
personal liberty, and may thus call for a lower degree of proof.
It is also unfair to require an employer to first be morally certain of the guilt of the employee by
awaiting a conviction before terminating him when there is already sufficient showing of the
wrongdoing. Requiring that certainty may prove too late for the employer, whose loss may
potentially be beyond repair. Here, no less than the DOJ Secretary found probable cause for
qualified theft against the petitioner. That finding was enough to justify her termination for loss
of confidence. To repeat, her responsibility as the supervisor tasked to oversee the affairs of the
kiosk, including seeing to the secure handling of the sales proceeds, could not be ignored or
downplayed. The employer’s loss of trust and confidence in her was directly rooted in the
manner of how she, as the supervisor, had negligently handled the large amount of sales by
simply leaving the amount inside the cabinet drawer of the kiosk despite being aware of the great
risk of theft. At the very least, she could have resorted to the SOP of first seeking guidance from
the main office on how to secure the amount if she could not deposit in the bank due to that day
being a Sunday.
Yet, even as we now say that the respondents had a just or valid cause for terminating the
petitioner, it becomes unavoidable to ask whether or not they complied with the requirements of
due process prior to the termination as embodied in Section 2 (d) of Rule I of the Implementing
Rules of Book VI of the Labor Code, viz:
Section 2. Security of tenure. – xxx
xxx
(d) In all cases of termination of employment, the following standards of due process shall be
substantially observed:
For termination of employment based on just causes as defined in Article 282 of the Labor
Code:
(i) A written notice served on the employee specifying the ground or grounds for
termination, and giving said employee reasonable opportunity within which to
explain his side.
(ii) A hearing or conference during which the employee concerned, with the
assistance of counsel if he so desires is given opportunity to respond to the charge,
present his evidence, or rebut the evidence presented against him.
(iii) A written notice of termination served on the employee, indicating that upon
due consideration of all the circumstances, grounds have been established to justify
his termination. (emphasis supplied)
xxx
We answer the query in the negative in the light of the circumstances of the petitioner’s
termination set forth in her affidavit, to wit:
xxx
14. While I was giving my statement to the security officer of the Mall, respondents Vina
and Sylvia Mariano came with a policeman and they brought me to Precinct 9, Malate
Police Station. Cristina Calung also arrived and together with the sister of Vina and Sylvia,
they operated the booth as if nothing happened;
15. I was detained at the police station from 11:15 a.m., November 10, up to 11:30 a.m.,
November 11, 1997;
16. After my release from the police precinct, I contacted by phone our office and I was
able to talk to respondent Sylvia Mariano. I told her that since I was innocent of the
charges they filed against me, I will report back to work. She shouted at me on the phone
and told me she no longer wanted to see my face. I therefore decided to file a complaint for
illegal dismissal against respondents with the NLRC, hence this present suit; (emphasis supplied)
13
xxx
The petitioner plainly demonstrated how quickly and summarily her dismissal was carried out
without first requiring her to explain anything in her defense as demanded under Section 2 (d) of
Rule I of the Implementing Rules of Book VI of the Labor Code. Instead, the respondents
forthwith had her arrested and investigated by the police authorities for qualified theft. This, we
think, was a denial of her right to due process of law, consisting in the opportunity to be heard
and to defend herself.14 In fact, their decision to dismiss her was already final even before the
police authority commenced an investigation of the theft, the finality being confirmed by no less
than Sylvia Mariano herself telling the petitioner during their phone conversation following the
latter’s release from police custody on November 11, 1997 that she (Sylvia) "no longer wanted to
see" her.
The fact that the petitioner was the only person suspected of being responsible for the theft
aggravated the denial of due process. When the respondents confronted her in the morning of
November 10, 1997 for the first time after the theft, they brought along a police officer to arrest
and hale her to the police precinct to make her answer for the theft. They evidently already
concluded that she was the culprit despite a thorough investigation of the theft still to be made.
This, despite their obligation under Section 2 (d) of Rule I of the Implementing Rules of Book VI
of the Labor Code, firstly, to give her a "reasonable opportunity within which to explain (her)
side;" secondly, to set a "hearing or conference during which the employee concerned, with the
assistance of counsel if (she) so desires is given opportunity to respond to the charge, present
(her) evidence, or rebut the evidence presented against (her);" and lastly, to serve her a "written
notice of termination xxx indicating that upon due consideration of all the circumstances,
grounds have been established to justify (her) termination." They wittingly shunted aside the
tenets that mere accusation did not take the place of proof of wrongdoing, and that a suspicion or
belief, no matter how sincere, did not substitute for factual findings carefully established through
an orderly procedure.15
The fair and reasonable opportunity required to be given to the employee before dismissal
encompassed not only the giving to the employee of notice of the cause and the ability of the
employee to explain, but also the chance to defend against the accusation. This was our thrust in
Philippine Pizza, Inc. v. Bungabong,16 where we held that the employee was not afforded due
process despite the dismissal being upon a just cause, considering that he was not given a fair
and reasonable opportunity to confront his accusers and to defend himself against the charge of
theft notwithstanding his having submitted his explanation denying that he had stolen beer from
the company dispenser. The termination letter was issued a day before the employee could go to
the HRD Office for the investigation, which made it clear to him that the decision to terminate
was already final even before he could submit his side and refute the charges against him.
Nothing that he could say or do at that point would have changed the decision to dismiss him.
Such omission to give the employee the benefit of a hearing and investigation before his
termination constituted an infringement of his constitutional right to due process by the
employer.
The respondents would further excuse their failure to afford due process by averring that "even
before the respondents could issue the petitioner any formal written memorandum requiring her
to explain the loss of the P50,912.00 sales proceeds xxx she went post haste to the NLRC and
filed a case for illegal dismissal" in order to "beat the gun on respondents."17 However, we
cannot excuse the non-compliance with the requirement of due process on that basis, considering
that her resort to the NLRC came after she had been told on November 11, 1997 by Sylvia that
she (Sylvia) "no longer wanted to see" her. The definitive termination closed the door to any
explanation she would tender. Being afforded no alternative, she understandably resorted to the
complaint for illegal dismissal.
In view of the foregoing, we impose on the respondents the obligation to pay to the petitioner an
indemnity in the form of nominal damages of P30,000.00, conformably with Agabon v. NLRC,18
where the Court said:
Where the dismissal is for a just cause, as in the instant case, the lack of statutory due process
should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should
indemnify the employee for the violation of his statutory rights, as ruled in Reta v. National
Labor Relations Commission. The indemnity to be imposed should be stiffer to discourage the
abhorrent practice of "dismiss now, pay later," which we sought to deter in the Serrano ruling.
The sanction should be in the nature of indemnification or penalty and should depend on the
facts of each case, taking into special consideration the gravity of the due process violation of the
employer.
Under the Civil Code, nominal damages is adjudicated in order that a right of the plaintiff, which
has been violated or invaded by the defendant, may be vindicated or recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered by him.1avvphi1
As enunciated by this Court in Viernes v. National Labor Relations Commissions, an employer is

liable to pay indemnity in the form of nominal damages to an employee who has been dismissed
if, in effecting such dismissal, the employer fails to comply with the requirements of due process.
The Court, after considering the circumstances therein, fixed the indemnity at P2,590.50, which
was equivalent to the employee’s one month salary. This indemnity is intended not to penalize
the employer but to vindicate or recognize the employee’s right to statutory due process which
was violated by the employer.
The violation of the petitioners’ right to statutory due process by the private respondent warrants
the payment of indemnity in the form of nominal damages. The amount of such damages is
addressed to the sound discretion of the court, taking into account the relevant circumstances.
Considering the prevailing circumstances in the case at bar, we deem it proper to fix it at
P30,000.00. We believe this form of damages would serve to deter employers from future
violations of the statutory due process rights of employees. At the very least, it provides a
vindication or recognition of this fundamental right granted to the latter under the Labor Code
and its Implementing Rules. (emphasis is in the original text)
WHEREFORE, the Court AFFIRMS the decision promulgated on December 20, 2001 by the
Court of Appeals, but ORDERS the respondents to pay to the petitioner an indemnity in the
form of nominal damages of P30,000.00 for non-compliance with the requirements of due
process.
No pronouncement as to costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

(On Official Leave)
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice




Associate Justice
CERTIFICATION
RENATO C. CORONA
Chief Justice
Footnotes
1
The petitioner claimed that she started working for Minex on July 27, 1994 but Minex
stated that it employed her in 1991.
2
Rollo, pp. 496-497.
3
Id., pp. 468-472.
4
Id., pp. 275-286.
5
Id., pp. 227-246.
6
Id.
7
Id., pp. 113-124; penned by Associate Justice Romeo J. Callejo, Sr. (later a Member of
the Court, but already retired), with Associate Justice Remedios Salazar-Fernando and
Associate Justice Josefina Guevarra-Salonga concurring.
8
Id., p. 126.
9
Id., pp. 123-124.
10
73 Phil. 279, 282 (1941).
11
G.R. No. L-63193, April 30, 1984, 129 SCRA 163, 172.
12
G.R. No. L-69875, October 28, 1988, 166 SCRA 721, 726-727.
13
Rollo, p. 360.
14
Agabon v. NLRC, G.R. No. 158693, November 17, 2004, 442 SCRA 573; citing Santos
v. San Miguel Corporation, G.R. No. 149416, March 14, 2003, 399 SCRA 172, 182.
15
Austria v. NLRC, G.R. No. 123646, July 14, 1999, 310 SCRA 293, 303.
16
G.R. No. 154315, May 9, 2005, 458 SCRA 288, 299-300.
17
Rollo, p. 531.
18
Supra, note 14 at pp. 616-617.
SUPREME COURT
Manila
EN BANC
G.R. No. 194139 January 24, 2012
DOUGLAS R. CAGAS, Petitioner,

vs.
THE COMMISSION ON ELECTIONS, AND CLAUDE P. BAUTISTA, Respondents.
DECISION
BERSAMIN, J.:
A party aggrieved by an interlocutory order issued by a Division of the Commission on Elections

(COMELEC) in an election protest may not directly assail the order in this Court through a
special civil action for certiorari. The remedy is to seek the review of the interlocutory order
during the appeal of the decision of the Division in due course.
For resolution is the petition for certiorari brought under Rule 64 of the Rules of Court, assailing
the order dated August 13, 2010 (denying the affirmative defenses raised by the petitioner),1 and
the order dated October 7, 2010 (denying his motion for reconsideration),2 both issued by the
COMELEC First Division in EPC No. 2010-42, an election protest entitled Claude P. Bautista,
protestant v. Douglas R. Cagas, protestee.3
Antecedents
The petitioner and respondent Claude P. Bautista (Bautista) contested the position of Governor
of the Province of Davao del Sur in the May 10, 2010 automated national and local elections.
The fast transmission of the results led to the completion by May 14, 2010 of the canvassing of
votes cast for Governor of Davao del Sur, and the petitioner was proclaimed the winner (with
163,440 votes), with Bautista garnering 159,527 votes.4
Alleging fraud, anomalies, irregularities, vote-buying and violations of election laws, rules and
resolutions, Bautista filed an electoral protest on May 24, 2010 (EPC No. 2010-42).5 The protest
was raffled to the COMELEC First Division.
In his answer submitted on June 22, 2010,6 the petitioner averred as his special affirmative
defenses that Bautista did not make the requisite cash deposit on time; and that Bautista did not
render a detailed specification of the acts or omissions complained of.
On August 13, 2010, the COMELEC First Division issued the first assailed order denying the
special affirmative defenses of the petitioner, 7 viz:
After careful examination of the records of the case, this Commission (First Division) makes the
following observation:
1. Protestant paid the cash deposit amounting to one hundred thousand pesos (P100,000.00)
on June 3, 2010 as evidenced by O.R. No. 1118105; and
2. Paragraph nos. 9 to 28 of the initiatory petition filed by the Protestant set forth the
specific details of the acts and omissions complained of against the Protestee.
It is therefore concluded that the payment by the Protestant on June 3, 2010 is a substantial
compliance with the requirement of COMELEC Resolution No. 8804, taking into consideration
Section 9(e), Rule 6 of said Resolution. Furthermore, the Protestant has likewise essentially
complied with Section 7(g), Rule 6 of the above-mentioned Resolution.
In view of the foregoing, this Commission (First Division) RESOLVES to DENY the Protestee’s
special affirmative defenses.
SO ORDERED.8
The petitioner moved to reconsider on the ground that the order did not discuss whether the
protest specified the alleged irregularities in the conduct of the elections, in violation of Section
2, paragraph 2,9 Rule 19 of COMELEC Resolution No. 8804,10 requiring all decisions to clearly
and distinctly express the facts and the law on which they were based; and that it also
contravened Section 7(g), 11 Rule 6 of COMELEC Resolution No. 8804 requiring a detailed
specification of the acts or omissions complained of. He prayed that the matter be certified to the
COMELEC en banc pursuant to Section 1,12 Section 5,13 and Section 6,14 all of Rule 20 of
COMELEC Resolution No. 8804.
The petitioner insisted that COMELEC Resolution No. 8804 had introduced the requirement for
the "detailed specification" to prevent "shotgun fishing expeditions by losing candidates;"15 that
such requirement contrasted with Rule 6, Section 1 of the 1993 COMELEC Rules of
Procedure,16 under which the protest needed only to contain a "concise statement of the ultimate
facts" constituting the cause or causes of action; that Bautista’s protest did not meet the new
requirement under COMELEC Resolution No. 8804; and that in Peña v. House of
Representatives Electoral Tribunal,17 the Court upheld the dismissal of a protest by the House of
Representatives Electoral Tribunal (HRET) for not specifically alleging the electoral anomalies
and irregularities in the May 8, 1995 elections.
In his opposition,18 Bautista countered that the assailed orders, being merely interlocutory, could
not be elevated to the COMELEC en banc pursuant to the ruling in Panlilio v. COMELEC;19 that
the rules of the COMELEC required the initiatory petition to specify the acts or omissions
constituting the electoral frauds, anomalies and election irregularities, and to contain the ultimate
facts upon which the cause of action was based; and that Peña v. House of Representatives
Electoral Tribunal did not apply because, firstly, Peña had totally different factual antecedents
than this case, and, secondly, the omission of material facts from Peña’s protest prevented the
protestee (Alfredo E. Abueg, Jr.) from being apprised of the issues that he must meet and made it
eventually impossible for the HRET to determine which ballot boxes had to be collected.
On October 7, 2010, the COMELEC First Division issued its second assailed order,20 denying
the petitioner’s motion for reconsideration for failing to show that the first order was contrary to
law, to wit:
The Protestee’s August 28, 2010 "Motion for Reconsideration with Prayer to Certify the Case to
the Commission En Banc" relative to the Order issued by the Commission (First Division) dated
August 13, 2010 is hereby DENIED for failure to show that the assailed order is contrary to law
Without going into the merits of the protest, the allegations in the protestant’s petition have
substantially complied with the requirements of COMELEC Resolution No. 8804 that will
warrant the opening of the ballot boxes in order to resolve not only the issues raised in the
protest but also those set forth in the Protestee’s answer. When substantial compliance with
the rules is satisfied, allowing the protest to proceed is the best way of removing any doubt
or uncertainty as to the true will of the electorate. All other issues laid down in the parties’
pleadings, including those in the Protestee’s special and affirmative defenses and those
expressed in the preliminary conference brief, will best be threshed out in the final
resolution of the instant case.
The prayer to elevate the instant Motion for Reconsideration to the Commission En Banc is
DENIED considering that the 13 August 2010 Order is merely interlocutory and it does not
dispose of the instant case with finality, in accordance with Section 5(c), Rule 3 of the
COMELEC Rules of Procedure.
SO ORDERED.
Not satisfied, the petitioner commenced this special civil action directly in this Court.
Issue
The petitioner submits that:—
THE RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN REFUSING TO DISMISS
THE PROTEST FOR INSUFFICIENCY IN FORM AND CONTENT.
The petitioner argues that Section 9,21 Rule 6 of COMELEC Resolution No. 8804 obliged the
COMELEC First Division to summarily dismiss the protest for being insufficient in form and
content; and that the insufficiency in substance arose from the failure of the protest to: (a)
specifically state how the various irregularities and anomalies had affected the results of the
elections; (b) indicate in which of the protested precincts were "pre-shaded bogus-ballots" used;
(c) identify the precincts where the PCOS machines had failed to accurately account for the votes
in favor of Bautista; and (d) allege with particularity how many additional votes Bautista stood to
receive for each of the grounds he protested. He concludes that the COMELEC First Division
gravely abused its discretion in allowing the protest of Bautista despite its insufficiency.
Moreover, the petitioner urges that the protest be considered as a mere fishing expedition to be
outrightly dismissed in light of the elections being held under an automated system. In support of
his urging, he cites Roque, Jr. v. Commission on Elections,22 where the Court took judicial notice
of the accuracy and reliability of the PCOS machines and CCS computers, such that allegations
of massive errors in the automated counting and canvassing had become insufficient as basis for
the COMELEC to entertain or to give due course to defective election protests.23 He submits that
a protest like Bautista’s cast doubt on the automated elections.
On the other hand, the Office of the Solicitor General (OSG) and Bautista both posit that the
COMELEC had the power and prerogative to determine the sufficiency of the allegations of an
election protest; and that certiorari did not lie because the COMELEC First Division acted
within its discretion. Additionally, the OSG maintains that the assailed orders, being
interlocutory, are not the proper subjects of a petition for certiorari.
As we see it, the decisive issue is whether the Court can take cognizance of the petition for
certiorari.
Ruling
We dismiss the petition for lack of merit.
The governing provision is Section 7, Article IX of the 1987 Constitution, which provides:
Section 7. Each Commission shall decide by a majority vote of all its Members any case or
matter brought before it within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the
last pleading, brief, or memorandum required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof.
This provision, although it confers on the Court the power to review any decision, order or ruling
of the COMELEC, limits such power to a final decision or resolution of the COMELEC en banc,
and does not extend to an interlocutory order issued by a Division of the COMELEC. Otherwise
stated, the Court has no power to review on certiorari an interlocutory order or even a final
resolution issued by a Division of the COMELEC. The following cogent observations made in
Ambil v. Commission on Elections24 are enlightening, viz:
To begin with, the power of the Supreme Court to review decisions of the Comelec is prescribed
in the Constitution, as follows:
"Section 7. Each commission shall decide by a majority vote of all its members any case or
matter brought before it within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the
last pleading, brief, or memorandum required by the rules of the commission or by the
commission itself. Unless otherwise provided by this constitution or by law, any decision, order,
or ruling of each commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof." [emphasis supplied]
"We have interpreted this provision to mean final orders, rulings and decisions of the
COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of the Comelec en banc, not of a division,
certainly not an interlocutory order of a division. The Supreme Court has no power to
review via certiorari, an interlocutory order or even a final resolution of a Division of the
Commission on Elections.
The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the
Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964 Revised
Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as amended.
Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no appeal,
or any plain, speedy and adequate remedy in the ordinary course of law. A motion for
reconsideration is a plain and adequate remedy provided by law. Failure to abide by this
procedural requirement constitutes a ground for dismissal of the petition.
In like manner, a decision, order or resolution of a division of the Comelec must be

reviewed by the Comelec en banc via a motion for reconsideration before the final en banc
decision may be brought to the Supreme Court on certiorari. The pre-requisite filing of a
motion for reconsideration is mandatory.xxx25
There is no question, therefore, that the Court has no jurisdiction to take cognizance of the
petition for certiorari assailing the denial by the COMELEC First Division of the special
affirmative defenses of the petitioner. The proper remedy is for the petitioner to wait for the
COMELEC First Division to first decide the protest on its merits, and if the result should
aggrieve him, to appeal the denial of his special affirmative defenses to the COMELEC en banc
along with the other errors committed by the Division upon the merits.
It is true that there may be an exception to the general rule, as the Court conceded in Kho v.
Commission on Elections.26 In that case, the protestant assailed the order of the COMELEC First
Division admitting an answer with counter-protest belatedly filed in an election protest by filing
a petition for certiorari directly in this Court on the ground that the order constituted grave abuse
of discretion on the part of the COMELEC First Division. The Court granted the petition and
nullified the assailed order for being issued without jurisdiction, and explained the exception
thuswise:
As to the issue of whether or not the case should be referred to the COMELEC en banc,
this Court finds the respondent COMELEC First Division correct when it held in its order
dated February 28, 1996 that no final decision, resolution or order has yet been made
which will necessitate the elevation of the case and its records to the Commission en banc.
No less than the Constitution requires that election cases must be heard and decided first in
division and any motion for reconsideration of decisions shall be decided by the Commission en
banc. Apparently, the orders dated July 26, 1995, November 15, 1995 and February 28, 1996 and
the other orders relating to the admission of the answer with counter-protest are issuances of a
Commission in division and are all interlocutory orders because they merely rule upon an
incidental issue regarding the admission of Espinosa's answer with counter-protest and do not
terminate or finally dispose of the case as they leave something to be done before it is finally
decided on the merits. In such a situation, the rule is clear that the authority to resolve incidental
matters of a case pending in a division, like the questioned interlocutory orders, falls on the
division itself, and not on the Commission en banc. Section 5 (c), Rule 3 of the COMELEC
Rules of Procedure explicitly provides for this,
Sec. 5. Quorum; Votes Required xxx
xxx
(c) Any motion to reconsider a decision, resolution, order or ruling of a Division shall be
resolved by the Commission en banc except motions on interlocutory orders of the division
which shall be resolved by the division which issued the order. (emphasis provided)
Furthermore, a look at Section 2, Rule 3 of the COMELEC Rules of Procedure confirms that the
subject case does not fall on any of the instances over which the Commission en banc can take
cognizance of. It reads as follows:
Section 2. The Commission en banc. — The Commission shall sit en banc in cases hereinafter
specifically provided, or in pre-proclamation cases upon a vote of a majority of the members of a
Commission, or in all other cases where a division is not authorized to act, or where, upon a
unanimous vote of all the members of a Division, an interlocutory matter or issue relative to an
action or proceeding before it is decided to be referred to the Commission en banc.
In the instant case, it does not appear that the subject controversy is one of the cases
specifically provided under the COMELEC Rules of Procedure in which the Commission
may sit en banc. Neither is it shown that the present controversy a case where a division is
not authorized to act nor a situation wherein the members of the First Division
unanimously voted to refer the subject case to the Commission en banc. Clearly, the
Commission en banc, under the circumstances shown above, can not be the proper forum
which the matter concerning the assailed interlocutory orders can be referred to.
In a situation such as this where the Commission in division committed grave abuse of
discretion or acted without or in excess of jurisdiction in issuing interlocutory orders
relative to an action pending before it and the controversy did not fall under any of the
instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy
of the aggrieved party is not to refer the controversy to the Commission en banc as this is
not permissible under its present rules but to elevate it to this Court via a petition for
certiorari under Rule 65 of the Rules of Court. (Bold emphasis supplied)
Under the exception, therefore, the Court may take cognizance of a petition for certiorari under
Rule 64 to review an interlocutory order issued by a Division of the COMELEC on the ground of
the issuance being made without jurisdiction or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction when it does not appear to be specifically
provided under the COMELEC Rules of Procedure that the matter is one that the COMELEC en
banc may sit and consider, or a Division is not authorized to act, or the members of the Division
unanimously vote to refer to the COMELEC en banc. Of necessity, the aggrieved party can
directly resort to the Court because the COMELEC en banc is not the proper forum in which the
matter concerning the assailed interlocutory order can be reviewed.
However, the Kho v. Commission on Elections exception has no application herein, because the
COMELEC First Division had the competence to determine the lack of detailed specifications of
the acts or omissions complained of as required by Rule 6, Section 7 of COMELEC Resolution
No. 8804, and whether such lack called for the outright dismissal of the protest. For sure, the
1987 Constitution vested in the COMELEC broad powers involving not only the enforcement
and administration of all laws and regulations relative to the conduct of elections but also the
resolution and determination of election controversies.27 The breadth of such powers
encompasses the authority to determine the sufficiency of allegations contained in every election
protest and to decide based on such allegations whether to admit the protest and proceed with the
hearing or to outrightly dismiss the protest in accordance with Section 9, Rule 6 of COMELEC
Resolution No. 8804.
The Court has upheld the COMELEC’s determination of the sufficiency of allegations contained
in election protests, conformably with its imperative duty to ascertain in an election protest, by
all means within its command, who was the candidate elected by the electorate.28 Indeed, in
Panlilio v. Commission on Elections,29 we brushed aside the contention that the election protest
was insufficient in form and substance and was a sham for having allegations couched in general
terms, stating:
In Miguel v. COMELEC, the Court belittled the petitioner’s argument that the protestant had no
cause of action, as the allegations of fraud and irregularities, which were couched in general
terms, were not sufficient to order the opening of ballot boxes and counting of ballots. The Court
states the rules in election protests cognizable by the COMELEC and courts of general
jurisdiction, as follows:
The rule in this jurisdiction is clear and jurisprudence is even clearer. In a string of categorical
pronouncements, we have consistently ruled that when there is an allegation in an election
protest that would require the perusal, examination or counting of ballots as evidence, it is the
ministerial duty of the trial court to order the opening of the ballot boxes and the examination
and counting of ballots deposited therein.
In a kindred case, Homer Saquilayan v. COMELEC, the Court considered the allegations in an
election protest, similar to those in this case, as sufficient in form and substance.
Again, in Dayo v. COMELEC, the Court declared that allegations of fraud and irregularities are
sufficient grounds for opening the ballot boxes and examining the questioned ballots. The
pronouncement is in accordance with Section 255 of the Omnibus Election Code, which reads:
Judicial counting of votes in election contest. – Where allegations in a protest or counter-protest
so warrant, or whenever in the opinion of the court in the interests of justice so require, it shall
immediately order the book of voters, ballot boxes and their keys, ballots and other documents
used in the election be brought before it and that the ballots be examined and the votes
recounted.lawphi1
In this case, the COMELEC Second Division found that the allegations in the protest and
counter-protest warranted the opening of the contested ballot boxes and the examination of their
contents to settle at once the conflicting claims of petitioner and private respondent.
The petitioner adds that with the Court having noted the reliability and accuracy of the PCOS
machines and consolidation/canvassing system (CCS) computers in Roque, Jr. v. Commission on
Elections,30 Bautista’s election protest assailing the system and procedure of counting and
canvassing of votes cast in an automated system of elections should be immediately dismissed.
We are not persuaded.
Roque, Jr. v. Commission on Elections does not preclude the filing of an election protest to
challenge the outcome of an election undertaken in an automated system of elections. Instead,
the Court only ruled there that the system and procedure implemented by the COMELEC in
evaluating the PCOS machines and CCS computers met the minimum system requirements
prescribed in Section 7 of Republic Act No. 8436.31 The Court did not guarantee the efficiency
and integrity of the automated system of elections, as can be gleaned from the following
pronouncement thereat:
The Court, however, will not indulge in the presumption that nothing would go wrong, that a
successful automation election unmarred by fraud, violence, and like irregularities would be the
order of the moment on May 10, 2010. Neither will it guarantee, as it cannot guarantee, the
effectiveness of the voting machines and the integrity of the counting and consolidation software
embedded in them. That task belongs at the first instance to Comelec, as part of its mandate to
ensure clean and peaceful elections. This independent constitutional commission, it is true,
possesses extraordinary powers and enjoys a considerable latitude in the discharge of its
functions. The road, however, towards successful 2010 automation elections would certainly be
rough and bumpy. The Comelec is laboring under very tight timelines. It would accordingly need
the help of all advocates of orderly and honest elections, of all men and women of goodwill, to
smoothen the way and assist Comelec personnel address the fears expressed about the integrity
of the system. Like anyone else, the Court would like and wish automated elections to succeed,
credibly.32
In view of the foregoing, we have no need to discuss at length the other submissions of the
petitioner.
ACCORDINGLY, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

(On Official Leave)
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice




Associate Justice
CERTIFICATION
RENATO C. CORONA
Chief Justice
Footnotes
1
Rollo, pp. 34-35.
2
Id., p. 37.
3
Id., pp. 38-77.
4
Id., p. 8.
5
Supra, note 3.
6
Id., pp. 78-95.
7
Supra, note 1.
8
Emphasis supplied.
9
Section 2. Procedure in Making Decisions.— The conclusions of the Commission in
any case submitted to it for decision shall be reached in consultation before the case is
assigned by raffle to a Member for the writing of the opinion. A certification to this effect
signed by the Chairman or Presiding Commissioner shall be incorporated in the decision.
Any member who took no part or dissented, or abstained from a decision or resolution
must state the reason therefor.
Every decision shall express therein clearly and distinctly the facts and the
law on which it is based. In its decision, the Commission shall be guided by
the principle that every ballot is presumed to be valid unless there is clear
and good reason to justify its rejection and that the object of the election is to
obtain the true expression of the voters.
10
In Re: COMELEC Rules of Procedure on Disputes in an Automated Election System in
connection with the May 10, 2010 Elections.
11
Section 7. Contents of the protest of petition.— An election protest or petition for quo
warranto shall specifically state the following facts:
xxx
g) A detailed specification of the acts or omissions complained of showing the

electoral frauds, anomalies or irregularities in the protested precincts.
12
Section 1. Grounds of Motion for Reconsideration.— A motion for reconsideration
may be filed on the grounds that the evidence is insufficient to justify the decision, order
or ruling; or that the said decision, is contrary to law.
13
Section 5. How Motion for Reconsideration Disposed of.—Upon the filing of a motion
to reconsider a decision, resolution, order or ruling of a Division, the ECAD Clerk
concerned shall, within twenty-four (24) hours from the filing thereof, notify the
Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to
the Commission en banc.
14
Section 6. Duty of ECAD Director to Calendar Motion for Resolution.—The ECAD
Director concerned shall calendar the motion for reconsideration for the resolution of the
Commission en banc within ten days from the certification thereof.
15
Rollo, p. 120.
16
Section 1. Commencement of Action or Proceedings by Parties.—Any natural or
juridical person authorized by these rules to initiate any action or proceeding shall file
with the Commission a protest or petition alleging therein his personal circumstances as
well as those of the protestee or respondent, the jurisdictional facts, and a concise
statement of the ultimate facts constituting his cause or causes of action and specifying
the relief sought. He may add a general prayer for such further or other relief as may be
deemed just or equitable.
17
G.R. No. 123037, March 21, 1997, 270 SCRA 340.
18
Rollo, pp. 128-138.
19
G.R. No. 181478, July 15, 2009, 593 SCRA 139.
20
Rollo, p. 37 (emphasis supplied).
21
Section 9. Summary dismissal of election contest. – The Commission shall summarily
dismiss, motu proprio, an election protest and counter-protest on the following grounds:
xxx
b) The protest is insufficient in form and content as required in Section 7 hereof;
xxx
22
23
Rollo, pp. 23-24.
24
G.R. No. 143398, October 25, 2000, 344 SCRA 358, 365-366; reiterated in, among
others, Jumamil v. Commission on Elections, G.R. Nos. 167989-93, March 6, 2007, 517
SCRA 553; Dimayuga v. Commission on Elections, G.R. No. 174763, April 24, 2007,
522 SCRA 220; Cayetano v. Commission on Elections, G.R. No. 193846, April 12, 2011.
25
Emphasis supplied.
26
G.R. No. 124033, September 25, 1997, 279 SCRA 463, 471-473. See also Repol v.
Commission on Elections, G.R. No. 161418, April 28, 2004, 428 SCRA 321.
27
Dela Llana v. Commission on Elections, G.R. No. 152080, November 28, 2003, 416
SCRA 638.
28
Benito v. Commission on Elections, G.R. No. 106053, August 17, 1994, 235 SCRA
436, 422.
29
30
Supra, note 22.
31
Entitled "An Act Authorizing the Commission on Elections to Use an Automated
Election System in the May 11, 1998 National or Local Elections and in Subsequent
National and Local Electoral Exercises, Providing Funds Therefor and For Other
Purposes."
32
SUPREME COURT
Manila
EN BANC
A.M. OCA IPI No. 11-184-CA-J January 31, 2012
RE: VERIFIED COMPLAINT OF ENGR. OSCAR L. ONGJOCO, CHAIRMAN OF THE

BOARD/CEO OF FH-GYMN MULTI-PURPOSE AND TRANSPORT SERVICE
COOPERATIVE, AGAINST HON. JUAN Q. ENRIQUEZ, JR., HON. RAMON M. BATO,
JR. AND HON. FLORITO S. MACALINO, ASSOCIATE JUSTICES, COURT OF
APPEALS
RESOLUTION
BERSAMIN, J.:
Judicial officers do not have to suffer the brunt of unsuccessful or dissatisfied litigants’ baseless
and false imputations of their violating the Constitution in resolving their cases and of harboring
bias and partiality towards the adverse parties. The litigant who baselessly accuses them of such
violations is not immune from appropriate sanctions if he thereby affronts the administration of
justice and manifests a disrespect towards the judicial office.
Antecedents
On June 7, 2011, the Court received a letter from Engr. Oscar L. Ongjoco, claiming himself to be
the Chairman of the Board and Chief Executive Officer (CEO) of the FH-GYMN Multi-Purpose
and Transport Service Cooperative (FH-GYMN).1 The letter included a complaint-affidavit,2
whereby Ongjoco charged the CA’s Sixth Division composed of Associate Justice Juan Q.
Enriquez, Jr. (as Chairman), Associate Justice Ramon M. Bato, Jr., and Associate Justice Florito
S. Macalino as Members for rendering an arbitrary and baseless decision in CA-G.R. SP No.
102289 entitled FH-GYMN Multi-Purpose and Transport Service Cooperative v. Allan Ray A.
Baluyut, et al.3
The genesis of CA-G.R. SP No. 102289 started on July 26, 2004 when FH-GYMN requested the
amendment of Kautusang Bayan Blg. 37-02-97 of the City of San Jose del Monte, Bulacan
through the Committee on Transportation and Communications (Committee) of the Sangguniang
Panlungsod (Sanggunian) in order to include the authorization of FH-GYMN’s Chairman to
issue motorized tricycle operators permit (MTOP) to its members.4 During the ensuing scheduled
public hearings, City Councilors Allan Ray A. Baluyut and Nolly Concepcion, together with
ABC President Bartolome B. Aguirre and one Noel Mendoza (an employee of the Sanggunian),
were alleged to have uttered statements exhibiting their bias against FH-GYMN, giving FH-
GYMN reason to believe that the Committee members were favoring the existing franchisees
Francisco Homes Tricycle
Operators and Drivers Association (FRAHTODA) and Barangay Mulawin Tricycle Operators
and Drivers Association (BMTODA).5 Indeed, later on, the Sanggunian, acting upon the
recommendation of the Committee, denied the request of FH-GYMN.6
On July 15, 2005, FH-GYMN brought a complaint in the Office of the Deputy Ombudsman for
Luzon charging Baluyut, Concepcion, Aguirre, Mendoza with violations of Article 124(2)(d) of
the Cooperative Code, Section 3(e) and (f) of the Republic Act No. 3019 (Anti-Graft and Corrupt
Practices Act), and Section 5(a) of Republic Act No. 6713 (Code of Conduct for Public Officials
and Employees). The complaint also charged Eduardo de Guzman (FRAHTODA President) and
Wilson de Guzman (BMTODA President). Eventually, the complaint of FH-GYMN was
dismissed for insufficiency of evidence as to the public officials, and for lack of merit and lack of
jurisdiction as to the private respondents. FH-GYMN sought reconsideration, but its motion to
that effect was denied.7
FH-GYMN timely filed a petition for review in the CA.
In the meanwhile, FH-GYMN filed in the Office of the President a complaint accusing Overall
Deputy Ombudsman Orlando C. Casimiro, Deputy Ombudsman Emilio A. Gonzales III, and
Graft Investigator and Prosecution Officer Robert C. Renido with a violation of Section 3(i) of
Republic Act No. 3019 arising from the dismissal of its complaint.8
On January 31, 2011, the CA’s Sixth Division denied the petition for review.9
FH-GYMN, through Ongjoco, moved for the reconsideration of the denial of the petition for
review, with prayer for inhibition,10 but the CA’s Sixth Division denied the motion.
Thereafter, Ongjoco initiated this administrative case against the aforenamed member of the
CA’s Sixth Division.
In the complaint, Ongjoco maintained that respondent members of the CA’s Sixth Division
violated Section 14, Article VIII of the 1987 Constitution by not specifically stating the facts and
the law on which the denial of the petition for review was based; that they summarily denied the
petition for review without setting forth the basis for denying the five issues FH-GYMN’s
petition for review raised; that the denial was "unjust, unfair and partial," and heavily favored the
other party; that the denial of the petition warranted the presumption of "directly or indirectly
becoming interested for personal gain" under Section 3(i) of Republic Act No. 3019; and that the
Ombudsman officials who were probably respondent Justices’ schoolmates or associates
persuaded, induced or influenced said Justices to dismiss the petition for review and to
manipulate the delivery of the copy of the decision to FH-GYMN to prevent it from timely filing
a motion for reconsideration.11
Ruling
We find the administrative complaint against respondent Justices of the Court of Appeals
baseless and utterly devoid of legal and factual merit, and outrightly dismiss it.
Firstly, Ongjoco insists that the decision promulgated on January 31, 2011 by the CA’s Sixth
Division had no legal foundation and did not even address the five issues presented in the
petition for review; and that the respondents as members of the CA’s Sixth Division thereby
violated Section 14, Article VIII of the Constitution, which provides as follows:
Section 14. No decision shall be rendered by any court without expressing therein clearly and
distinctly the facts and the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall be refused
due course or denied without starting the legal basis therefor.
The insistence of Ongjoco is unfounded. The essential purpose of the constitutional provision is
to require that a judicial decision be clear on why a party has prevailed under the law as applied
to the facts as proved; the provision nowhere demands that a point-by-point consideration and
resolution of the issues raised by the parties are necessary.12 Cogently, the Court has said in
Tichangco v. Enriquez,13 to wit:
This constitutional provision deals with the disposition of petitions for review and of motions for
reconsideration. In appellate courts, the rule does not require any comprehensive statement of
facts or mention of the applicable law, but merely a statement of the "legal basis" for denying
due course.
Thus, there is sufficient compliance with the constitutional requirement when a collegiate
appellate court, after deliberation, decides to deny a motion; states that the questions raised are
factual or have already been passed upon; or cites some other legal basis. There is no need to
explain fully the court’s denial, since the facts and the law have already been laid out in the
assailed Decision. (Emphasis supplied)
Its decision shows that the CA’s Sixth Division complied with the requirements of the
constitutional provision,14 viz:
The petition is without merit.
Petitioner alleged that the Ombudsman erred in not finding respondents liable for violation of the
Cooperative Code of the Philippines considering that their actuations constituted acts of direct or
indirect interference or intervention with the internal affairs of FH-GYMN and that
recommendation to deny FH-GYMN’s application was tantamount to "any other act inimical or
adverse to its autonomy and independence."
We disagree.
It is well settled that in administrative proceedings, the complainant has the burden of proving,
by substantial evidence, the allegations in his complaint. Section 27 of the Ombudsman Act is
unequivocal. Findings of fact by the Office of the Ombudsman, when supported by substantial
evidence, are conclusive. Conversely, when the findings of fact by the Ombudsman are not
adequately supported by substantial evidence, they shall not be binding upon the courts (Marcelo
vs. Bungubung, 552 SCRA 589).
In the present case, the Deputy Ombudsman found no substantial evidence to prove that there
was interference in the internal affairs of FH-GYMN nor was there a violation of the law by the
respondents. As aptly ruled by the Ombudsman:
"While the utterances made by respondents Baluyot, Aguirre and Mendoza in the course of
public hearings earlier mentioned indeed demonstrate exaltation of FRAHTODA and BMTODA,
to the apparent disadvantage of FH-GYMN, the same does not imply or suggest interference in
the internal affairs of the latter considering that said remarks or comments were made precisely
in the lawful exercise of the mandate of the Sangguniang Panlungsod of the locality concerned
through the Committee on Transporation and Communication. It is worthy to emphasize that
were it not for the complainant’s letter-request dated July 23, 2004, the committee concerned
would not have conducted the aforementioned public hearings, thus, there would have been no
occasion for the subject unfavorable remarks to unleash. Thus, it would be irrational to conclude
that simply because the questioned utterances were unfavorable to FH-GYMN, the same
constitutes interference or intervention in the internal affairs of the said cooperative.
In the same vein, while respondents Baluyot, Concepcion and Aguirre rendered an adverse
recommendation as against complaint’s letter-request earlier mentioned, the same does not
signify giving of undue favors to FRAHTODA or BMTODA, or causing of undue injury to FH-
GYMN, inasmuch as said recommendation or decision, as the records vividly show, was arrived
at by the said respondents in honest exercise of their sound judgment based on their
interpretation of the applicable ordinance governing the operation of tricycles within their area of
jurisdiction. Evidence on record no doubt failed to sufficiently establish that, in so making the
questioned recommendation, respondents Baluyot, Concepcion and Aguirre acted with manifest
partiality, evident bad faith or gross inexcusable negligence. It is likewise worthy to note that,
contrary to complainant’s insinuation, the letter-request adverted to was acted upon by
respondents Baluyot, Concepcion and Aguirre within a reasonable time and, as a matter of fact,
complainant had been notified of the action taken by the former relative to his letter-request or
proposals.
Time and again, it has been held, no less than by the Supreme Court, that mere suspicions and
speculations can never be the basis of conviction in a criminal case. Guided by the same
doctrinal rule, this Office is not duty-bound to proceed with the indictment of the public
respondents as charged. Indeed well entrenched is the rule that "(t)he purpose of a preliminary
investigation is to secure the innocent against hasty, malicious and oppressive prosecution and to
protect him from an open and public accusation of crime, from the trouble, expense and anxiety
of a public trial, and also to protect the state from useless and expensive trials (Joint Resolution,
October 17, 2005, Rollo pp. 142-143).
Moreover, petitioners failed to rebut the presumption of regularity in the performance of the
official duties of respondents by affirmative evidence of irregularity or failure to perform a duty.
The presumption prevails and becomes conclusive until it is overcome by no less than clear and
convincing evidence to the contrary. Every reasonable intendment will be made in support of the
presumption and in case of doubt as to an officer’s act being lawful or unlawful, construction
should be in favor of its lawfulness (Bustillo vs. People of the Philippines, G.R. No. 160718, May
12, 2010).
There being no substantial evidence to reverse the findings of the Ombudsman, the instant
petition is denied.
WHEREFORE, premises considered the Petition for Review is DENIED for lack of merit. The
Joint Resolution dated October 17, 2005 and Joint Order dated April 25, 2006 of the Deputy
Ombudsman of Luzon are AFFIRMED.
SO ORDERED.
Indeed, the definitive pronouncement of the CA’s Sixth Division that "the Deputy Ombudsman
found no substantial evidence to prove that there was interference in the internal affairs of FH-
GYMN nor was there a violation of the law by the respondents"15 met the constitutional demand
for a clear and distinct statement of the facts and the law on which the decision was based. The
CA’s Sixth Division did not have to point out and discuss the flaws of FH-GYMN’s petition
considering that the decision of the Deputy Ombudsman sufficiently detailed the factual and
legal bases for the denial of the petition.
Moreover, the CA’s Sixth Division expressly found that FH-GYMN had not discharged its
burden as the petitioner of proving its allegations with substantial evidence.16 In administrative
cases involving judicial officers, the complainants always carried on their shoulders the burden
of proof to substantiate their allegations through substantial evidence. That standard of
substantial evidence is satisfied only when there is reasonable ground to believe that the
respondent is responsible for the misconduct complained of although such evidence may not be
overwhelming or even preponderant.17
Secondly, Ongjoco ought to know, if he genuinely wanted the Court to sustain his allegations of
misconduct against respondent Justices, that his administrative complaint must rest on the quality
of the evidence; and that his basing his plain accusations on hunches and speculations would not
suffice to hold them administratively liable for rendering the adverse decision. Nonetheless, he
exhibited disrespect for respondent Justices’ judicial office by still filing this administrative
complaint against them despite conceding in the administrative complaint itself his having no
proof of his charges, viz:
21. The petition to review in determining probable cause in a preliminary investigation had
reached this far and may reach the Supreme Court due to corrupt practices and culpable violation
of the 1987 Constitution committed by Ombudsman officials and the herein respondents of the
Court of Appeals. A Motion for Reconsideration was submitted with prayer for the respondents
to inhibit themselves to act on it. Otherwise, it will add to congest the court docket which this
Honorable Court should intercede to look deeper into this matter by exercising its disciplinary
functions over herein respondents.1âwphi1 The arbitrary denial of the Petition for Review
rendered by the herein respondents is meant that there is no sufficient ground out of the five (5)
issues raised to engender a well-founded belief that no single offense has been committed.18
xxx
24. Though there was no clear evidence to link Ombudsman officials, they may have persuaded,
induced or influenced the herein respondents, who are either their schoolmates or associates, to
deny the Petition for Review in their bid to establish innocence on the related offense charged
against them on 18 August 2010 before the Office of the President docketed as OP-DC Case No.
11-C-006. Likewise, they may have manipulated the delivery of a copy of Decision intended for
the petitioner in order for the latter to fail in submitting a motion for reconsideration purposely to
make the Decision final and executory by which the said Ombudsman officials could use such
Decision to attain impunity on complaint against them filed with the Office of the President.19
(emphasis supplied)
It is evident to us that Ongjoco’s objective in filing the administrative complaint was to take
respondent Justices to task for the regular performance of their sworn duty of upholding the rule
of law. He would thereby lay the groundwork for getting back at them for not favoring his
unworthy cause. Such actuations cannot be tolerated at all, for even a mere threat of
administrative investigation and prosecution made against a judge to influence or intimidate him
in his regular performance of the judicial office always subverts and undermines the
independence of the Judiciary.20
We seize this occasion, therefore, to stress once again that disciplinary proceedings and criminal
actions brought against any judge in relation to the performance of his official functions are
neither complementary to nor suppletory of appropriate judicial remedies, nor a substitute for
such remedies.21 Any party who may feel aggrieved should resort to these remedies, and exhaust
them, instead of resorting to disciplinary proceedings and criminal actions. We explained why in
In Re: Joaquin T. Borromeo:22
Given the nature of the judicial function, the power vested by the Constitution in the Supreme
Court and the lower courts established by law, the question submits to only one answer: the
administrative or criminal remedies are neither alternative or cumulative to judicial review where
such review is available, and must wait on the result thereof.
Simple reflection will make this proposition amply clear, and demonstrate that any contrary
postulation can have only intolerable legal implications. Allowing a party who feels aggrieved by
a judicial order or decision not yet final and executory to mount an administrative, civil or
criminal prosecution for unjust judgment against the issuing judge would, at a minimum and as
an indispensable first step, confer the prosecutor (Ombudsman) with an incongruous function
pertaining, not to him, but to the courts: the determination of whether the questioned disposition
is erroneous in its findings of fact or conclusions of law, or both. If he does proceed despite that
impediment, whatever determination he makes could well set off a proliferation of administrative
or criminal litigation, a possibility hereafter more fully explored.
Such actions are impermissible and cannot prosper. It is not, as already pointed out, within the
power of public prosecutors, or the Ombudsman or his Deputies, directly or vicariously, to
review judgments or final orders or resolutions of the Courts of the land. The power of review—
by appeal or special civil action—is not only lodged exclusively in the Courts themselves but
must be exercised in accordance with a well-defined and long established hierarchy, and long
standing processes and procedures. No other review is allowed; otherwise litigation would be
interminable, and vexatiously repetitive.
In this regard, we reiterate that a judge’s failure to correctly interpret the law or to properly
appreciate the evidence presented does not necessarily incur administrative liability,23 for to hold
him administratively accountable for every erroneous ruling or decision he renders, assuming he
has erred, will be nothing short of harassment and will make his position doubly unbearable. His
judicial office will then be rendered untenable, because no one called upon to try the facts or to
interpret the law in the process of administering justice can be infallible in his judgment.24
Administrative sanction and criminal liability should be visited on him only when the error is so
gross, deliberate and malicious, or is committed with evident bad faith,25 or only in clear cases of
violations by him of the standards and norms of propriety and good behavior prescribed by law
and the rules of procedure, or fixed and defined by pertinent jurisprudence.26
What the Court sees herein is Ongjoco’s proclivity to indiscriminately file complaints. His
proclivity reminds us now of Joaquin T. Borromeo whom this Court pronounced guilty of
indirect contempt of court he "repeatedly committed over time, despite warnings and instructions
given to him."27 The Court imposed the penalty for contempt of court "to the end that he may
ponder his serious errors and grave misconduct and learn due respect for the Courts and their
authority."28
Having determined that the administrative charge against respondent Justices had no factual and
legal bases, we cannot hesitate to shield them by immediately rejecting the charge. We do so
because unfounded administrative charges do not contribute anything worthwhile to the orderly
administration of justice; instead, they retard it.
Nor should we just let such rejected charge pass and go unchallenged. We recognize that
unfounded administrative charges against judges really degrade the judicial office, and interfere
with the due performance of their work for the Judiciary. Hence, we deem to be warranted to
now direct Ongjoco to fully explain his act of filing an utterly baseless charge against respondent
Justices.
ACCORDINGLY, the Court: (a) DISMISSES the administrative complaint against Associate
Justice Juan Q. Enriquez, Jr., Associate Justice Ramon M. Bato, Jr., and Associate Justice Florito
S. Macalino for its utter lack of merit; and (b) ORDERS Engr. Oscar L. Ongjoco to show cause
in writing within ten (10) days from notice why he should not be punished for indirect contempt
of court for degrading the judicial office of respondent Associate Justices of the Court of
Appeals, and for interfering with the due performance of their work for the Judiciary.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

(On Leave)
MARTIN S. VILLARAMA, JR.
ROBERTO A. ABAD
Associate Justice
Associate Justice

(On leave)
BIENVENIDO L. REYES
Associate Justice
Associate Justice
Associate Justice
Footnotes
1
Rollo, p. 2.
2
Id., pp. 3-11.
3
Id., pp. 12-20.
4
Id., pp. 34-35 (the other amendment was to implement a color-coding scheme for the
tricycles belonging to the two existing operators/drivers associations and the complainant
cooperative).
5
Id., pp. 34-36.
6
Id., p. 36.
7
Id., pp. 37-38.
8
Id., pp. 61-71.
9
Id., pp. 12-20.
10
Id., pp. 21-31.
11
Id., pp. 9-10.
12
Civil Service Commission v. Ledesma, G.R. No. 154521, September 30, 2005, 471
SCRA 589, 602.
13
G.R. No. 150629, June 30, 2004, 433 SCRA 325, 341.
14
Rollo, pp. 17-20.
15
Rollo, p. 18.
16
Rollo, p. 18.
17
Maneja v. de Castro-Panganiban, A.M. OCA IPI No. 03-1347-MTJ. January 17, 2005.
18
Rollo, pp. 8-9 (emphasis supplied).
19
Rollo, pp. 9-10.
20
Complaint of Mr. Aurelio Indencia Arrienda Against SC Justices Puno, Kapunan,
Pardo, Ynares-Santiago, et al., A.M. No. 03-11-30-SC, June 9, 2005, 460 SCRA 1.
21
In Re: Wenceslao Laureta, March 12, 1987, 148 SCRA 382, 420, where the Court
stated:
To allow litigants to go beyond the Court’s resolution and claim that the members
acted "with deliberate bad faith" and rendered an "unjust resolution" in disregard
or violation of the duty of their high office to act upon their own independent
consideration and judgment of the matter at hand would be to destroy the
authenticity, integrity and conclusiveness of such collegiate acts and resolutions
and to disregard utterly the presumption of regular performance of official duty.
To allow such collateral attack would destroy the separation of powers and
undermine the role of the Supreme Court as the final arbiter of all judicial
disputes.
22
A.M. No.93-7-696-0, February 21, 1995, 241 SCRA 405.
23
Estrada, Jr. v. Himalaloan, A.M. No. MTJ-05-1617, November 18, 2005, 475 SCRA
353, 360.
24
Visitacion v. Libre, A..M. No. RTJ-05-1918, June 8, 2005, 459 SCRA 398, 407;
Estrada, Jr. v. Himalaloan, A.M. No. MTJ-05-1617, November 18, 2005, 475 SCRA 353,
360.
25
In Re Joaquin T. Borromeo, supra, note 22.
26
Wong Jan Realty v. Español, A.M. No. RTJ-01-1647, October 13, 2006, 472 SCRA
496, 503.
27
28
Id.
SUPREME COURT
Manila
EN BANC
G.R. No. 176343 September 18, 2012
TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE

PHILIPPINES, Petitioner,
vs.
MA. ROSARIO S. MANALANG-DEMIGILIO, Respondent.
DECISION
BERSAMIN, J.:
The issuance by the proper disciplining authority of an order of preventive suspension for 90
days of a civil service officer or employee pending investigation of her administrative case is
authorized provided that a formal charge is served to her and the charge involves dishonesty,
oppression, grave misconduct, or neglect in the performance of duty, or if there are reasons to
believe that she is guilty of the charge as to warrant her removal from the service. Proof showing
that the respondent officer or employee may unduly influence the witnesses against her or may
tamper the documentary evidence on file at her office is not a prerequisite before she may be
preventively suspended.
Antecedents
Trade and Investment Development Corporation of the Philippines (TIDCORP) is a wholly

owned government corporation whose primary purpose is to guarantee foreign loans, in whole or
in part, granted to any domestic entity, enterprise or corporation organized or licensed to engage
in business in the Philippines.1
On May 13, 2003, the Board of Directors of TIDCORP formally charged Maria Rosario
Manalang-Demigillo (Demigillo), then a Senior Vice-President in TIDCORP, with grave
misconduct, conduct prejudicial to the best interest of the service, insubordination, and gross
discourtesy in the course of official duties. The relevant portions of the formal charge read:
After a thorough study, evaluation, and deliberation, the Board finds merit to the findings and
recommendation of the Investigating Committee on the existence of a probable cause for Grave
Misconduct, Conduct Prejudicial to the Best Interest of the Service, Insubordination, and Gross
Discourtesy in the Course of Official Duties. However and to avoid any suspicion of partiality in
the conduct of the investigation, the Board hereby refers this case to the Office of the
Government Corporate Counsel to conduct a formal investigation on the following:
1) The incident during the Credit Committee Meeting on 06 March 2002 where you allegedly
engaged yourself in a verbal tussle with Mr. Joel C. Valdes, President and CEO. Allegedly, you
raised your voice, got angry, shouted at Mr. Valdes and were infuriated by his remarks such as
"are we talking of apples and apples here?", "everybody should focus on the issues at hand" and
"out of the loop";
2) The incident during the Reorganization Meeting on 18 July 2002 where you appeared to have
been rude and arrogant in the way you answered Mr. Valdes to some questions like "Ano gusto
mo? Bibigay ko personally sa iyo…sasabihan ko personally ikaw?", "You know Joel alam natin
sa isa’t-isa…that…I don’t know how to term it…there is no love lost no?", "Ang ibig sabihin
kung may galit ka…" "Let’s be candid you know…" "What is the opportunity? Let me
see…pakita ko sa’yo lahat ang aking ano…" and "Anong output tell me?";
3) The incident during the Planning Session on 05 August 2002. Records show that you reacted
to the statement of Mr. Valdes urging everybody to give support to the Marketing Group in this
manner – "But of course, we would not want to be the whipping boy!" Records also show that in
the same meeting, you used arrogant and threatening remarks to the President and CEO like
"don’t cause division to hide your inefficiency and gastos! If you push me to the wall, I have
goods on you too…", "You want me to charge you to the Ombudsman?", "May humihingi ng
documents sa akin, sabayan ko na sila", "Now I’m fighting you openly…"and "I am threatening
you";
4) The incident involving your Memorandum to Mr. Valdes dated 19 September 2002, the
pertinent portions of which read, as follows:
"I am repulsed and nauseated by the information that yesterday, 18 September 2002 at the
OPCOM meeting, you claim to have talked to me or consulted me about the car you caused to be
purchased for the Corporate Auditor Ms. Maria Bautista.
I have never talked to you about your desire to give Ms. Bautista a car.
This is a brazen lie, a fabrication. Such moral turpitude! How low, how base, how desperate!
Accordingly, as you have given me no (sic), I am taking you to task for this and all the illegal
acts you have done and are doing against me and TIDCORP."
It appears that the said Memorandum was circulated even to those who were not privy to the
cause of the issuance of such statement.
5) The incident where you assisted and made it appear to be acting as counsel of Mr. Vicente C.
Uy in the case involving the latter relative to the conduct of the APEC Capacity Building for
Trade and Investment Insurance Training Program in April 2002;
6) The incident on 13 November 2002 where you allegedly urged and induced officials and
employees at the 3rd floor of TIDCORP to proceed to the Office of the President and CEO to
give support to EVP Jane Tambanillo who was allegedly then being forced to resign by Mr.
Valdes. This caused not only a commotion but disturbance and disruption of the office work at
both 3rd and 4th floors;
7) The incident on 13 November 2002 where you allegedly shouted at Atty. Jane Laragan and
berated Mr. Valdes in front of officers and employees whom you gathered as per allegation
number 6; and
8) Relative to allegation number 7, your stubborn refusal to obey the order of Mr. Valdes to go
back to work as it was only 9:30 a.m. and instead challenged him to be the one to bring you
down to the 3rd floor instead of asking the guard to do so.
Pursuant to Section 16, Rule II of the Uniform Rules on Administrative Cases in the Civil
Service and in the spirit of justice, fair play, and due process, you are hereby given the
opportunity to submit additional evidence to what you have already submitted during the
preliminary investigation, if any to the Board, through the OGCC, within seventy two (72) hours
from receipt of this Memorandum.
In this regard, you are informed of your right to be assisted by a counsel of your choice and to
indicate in your answer whether or not you elect a formal investigation. Nevertheless, and in
accordance with the aforecited provision of the Uniform Rules on Administrative Cases in the
Civil Service, any requests for clarification, bills of particulars or motion to dismiss which are
obviously designed to delay the administrative proceeding shall not be entertained. If any of
these pleadings are interposed, the same shall be considered as an answer and shall be evaluated
as such.
Finally, and after considering Section 19 of the same Rules, which gives authority to the
disciplining body to issue an order of preventive suspension, you are hereby preventively
suspended for a period of ninety (90) days from receipt hereof.
Let a copy of this memorandum and the complete records of the case be forwarded immediately
to the Office of the Government Corporate Counsel (OGCC) for appropriate action.2
TIDCORP referred the charge to the Office of the Government Corporate Counsel (OGCC) for
formal investigation and reception of evidence. Pending the investigation, TIDCORP placed
Demigillo under preventive suspension for 90 days.3
Demigillo assailed her preventive suspension in the Civil Service Commission (CSC),4 which
issued on January 21, 2004 Resolution No. 040047 declaring her preventive suspension to be
"not in order."5 The CSC stated that under Section 19(2), Rule II, of the Uniform Rules on
Administrative Cases in the Civil Service (Uniform Rules), a civil service officer like Demigillo
might be preventively suspended by the disciplining authority only if any of the two grounds
were present, to wit: (1) there was a possibility that the civil service employee might unduly
influence or intimidate potential witnesses against him; or (2) there was a possibility that the
civil service employee might tamper the documentary evidence on file in her office.6 According
to the CSC, TIDCORP did not prove with substantial evidence the existence of any of such
grounds, explaining thus:
xxx. As the party claiming affirmative evidence, that is, Demigillo’s possibility of influencing
potential witnesses or tampering with evidence, TIDCORP is bound to prove the same by
substantial evidence. However, it failed to. TIDCORP claims that its witnesses "refused to issue
any sworn statement during the preliminary investigation in deference to their immediate
superior x x x and that the same witnesses, however, intimated that they may be compelled to tell
the truth if called to testify during the investigation." On the basis of these statements, it is clear
that the witnesses’ refusal to execute sworn statement is by reason of their "deference" to
Demigillo not on account of her "intimidation or influence." Further, the fact that said witnesses
"will be compelled to tell the truth" is not because of Demigillo’s continued presence or absence
in the office but because they are bound by their oath to tell the truth during the investigation.
Under these circumstances, it is not difficult to ascertain that the order of preventive suspension
is not necessary.
Anent the potential tampering of documents by Demigillo, the Commission similarly finds the
same remote. There is no showing that the documentary evidence of the case leveled against her
were in her possession or custody as would otherwise justify the imposition of preventive
suspension. As borne by the evidence on record, the acts complained of against Demigillo
constitute verbal tussles between her and President Valdes which were all recorded and
documented by the TIDCORP. In this situation, there is no chance of Demigillo’s tampering with
documents.
From the foregoing disquisition, the Commission finds that the preventive suspension of
Demigillo for ninety (90) days was improvidently made because the possibility of
exerting/influencing possible witnesses or tampering with documents, which is the evil sought to
be avoided in this case, does not exist.7
Upon denial of its motion for reconsideration by the CSC,8 TIDCORP appealed to the Court of
Appeals (CA),9 submitting the sole issue of:
WHETHER OR NOT THE CSC ERRED IN SO HOLDING THE PREVENTIVE

SUSPENSION OF APPELLANT DEMIGILLO WAS NOT IN ORDER.10
On November 7, 2006, the CA promulgated its decision affirming the CSC,11 holding and ruling
as follows:
The main issue in this case is whether or not respondent Demigillo was validly placed under
preventive suspension on the ground that she could possibly influence or intimidate potential
witnesses or tamper the evidence on record in her office, thus, affecting the investigation of the
case against her.
Petitioner argues that the preventive suspension imposed against respondent Demigillo is valid as
it is in accordance with the CSC rules and regulations and Section 51, Chapter 6, Title I (A),
Book V of Executive Order No. 292 which states that "the proper disciplining authority may
preventively suspend any subordinate officer or employee under his authority pending an
investigation, if the charge against such officer or employee involves dishonesty, oppression or
grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that
the respondent is guilty of charges which would warrant his removal from the service", hence,
the CSC erred in holding the same not in order. Further, petitioner contends that since the
provision of the Administrative Code of 1987 on preventive suspension does not set any
condition on its imposition, the provision in the Uniform Rules on Administrative Cases in the
Civil Service promulgated by the CSC should be stricken out as it is not found in the law itself.
We are not persuaded.
We agree with the CSC Resolution No. 040047 which cited Section 19 (paragraph 2), Rule II,
Uniform Rules on Administrative Cases in the Civil Service as basis in ruling against the order
of preventive suspension against herein respondent. The pertinent portion of the provision reads,
as follows:
An order of preventive suspension may be issued to temporarily remove the respondent from the
scene of his misfeasance or malfeasance and to preclude the possibility of exerting undue
influence or pressure on the witnesses against him or tampering of documentary evidence on file
with his Office.
Based on the aforequoted provision, any of the two grounds: (1) to preclude the possibility of
exerting undue influence or pressure on the witnesses against him; or (2) tampering of
documentary evidence on file with his office, can be validly invoked by the disciplining
authority to justify the imposition of the preventive suspension. As correctly pointed out by
respondent in her motion for leave to file and admit attached comment, and comment to amended
petition for review, under Section 19 (paragraph 2), Rule II, of the Uniform Rules of
Administrative Cases in the Civil Service (URACCS), preventive suspension is warranted in
order to preclude the respondent from exerting "undue influence" on the witnesses against her.
But in this case, TIDCORP failed to prove the possibility of respondent exerting undue influence
on the witnesses, but instead CSC found TIDCORP to have admitted unequivocally that it is
because of the witnesses’ deference or respect for respondent that they did not execute sworn
statements. Indeed, the esteem or respect given is not undue influence; it even negates any
wrongdoing on the part of respondent. Indeed, the alleged incidents being harped about by
TIDCORP do not in any way prove undue influence of respondent on the witnesses. The
incidents involved mere verbal tussles between Mr. Joel Valdes, TIDCORP President and CEO,
respondent Demigillo and Jane Larangon, who had already executed her affidavit even before
respondent’s preventive suspension. In brief, TIDCORP failed to prove undue influence as there
is nothing in those incidents showing the commission or coercion or compulsion upon one to do
what is against his will.
We agree with the findings of the CSC that respondent’s possibility to exert undue influence or
pressure on the witnesses against her is remote. The purpose of preventive suspension is to avoid
the possibility on the part of the person charged of a certain offense, to exert influence or undue
pressure on the potential witnesses against her. In Gloria vs. Court of Appeals, the High Court
said that preventive suspension pending investigation is a measure intended to enable the
disciplining authority to investigate charges against respondent by preventing the latter from
intimidating or in any way influencing witnesses against him. And as correctly pointed out by the
CSC, the possibility of exerting influence or pressure on the potential witnesses does not exist in
this case because the complainant or the person who stands to be a witness for the government is
influential, so to speak, as he holds the highest position in TIDCORP. It is really difficult to
imagine that a person who occupies the highest position in an organization could be influenced
or intimidated by his subordinate. The president of the organization has greater degree of control
in the organization, and to claim that he could be intimated or influenced by his subordinate is
baseless and unbelievable. Considering that Valdes was President of TIDCROP and a primary
witness against respondent who is his mere subordinate, we find no valid ground for petitioner to
impose preventive suspension against respondent.
Moreover, as correctly pointed out by the CSC in its resolution, as the party claiming affirmative
relief, TIDCORP is bound to prove the basis thereof, i.e. respondent’s possibility of influencing
potential witnesses or tampering with the evidence, by substantial evidence, which it failed to do.
There is no showing that the documentary evidence against respondent are in her possession or
custody. The acts complained of against respondent arose out of the verbal tussles between her
and President Valdes which were all recorded and documented by TIDCORP. In this situation,
there is no chance for respondent’s tampering with the documents.
As regards the argument that since the provision of the Administrative Code of 1987 on
preventive suspension does not set any condition on its imposition, the provision in the Uniform
Rules on Administrative Cases in the Civil Service promulgated by the CSC should be stricken
out as it is not found in the law itself, we rule in the negative.
We agree with respondent that the aforequoted argument of petitioner is misplaced and
unfounded. Section 12 (2), Chapter 3, Tile I (A) of Book V of the Revised Administrative Code,
provides that among the powers and functions of the Civil Service Commission is to prescribe,
amend and enforce rules and regulations for carrying into effect the provisions of the Civil
Service Law and other pertinent laws. It is on the basis of this grant of power to the CSC that
CSC Resolution No. 991936, otherwise known as the Uniform Rules on Administrative Cases in
the Civil Service was promulgated.
Indeed, the rule-making power of the administrative body is intended to enable it to implement
the policy of the law and to provide for the more effective enforcement of its provisions.
Through the exercise of this power of subordinate legislation, it is possible for the administrative
body to transmit "the active power of the state from its source to the point of application," that is,
apply the law and so fulfill the mandate of the legislature. It is an elementary rule in
administrative law that administrative regulations and policies enacted by administrative bodies
to interpret the law which they are entrusted to enforce, have the force of law, are entitled to
great respect, and have in their favor a presumption of legality.
Furthermore, Section 10 of Rule 43 of the 1997 Rules of Civil Procedure, provides that the
findings of fact of the court or agency concerned, when supported by substantial evidence, shall
be binding on the Court of Appeals. Indeed, jurisprudence is replete with the rule that findings of
fact of quasi-judicial agencies which have acquired expertise because their jurisdiction is
confined to specific matters are generally accorded not only respect, but at times even finality if
such findings are supported by substantial evidence.
WHEREFORE, the instant petition is DENIED. The assailed Resolutions dated January 21,
2004 and June 7, 2004, issued by the Civil Service Commission, are AFFIRMED.
SO ORDERED.12
Hence, TIDCORP has appealed to the Court.13
Issue
The sole issue concerns the validity of TIDCORP’s 90-day preventive suspension of Demigillo.
Ruling
We grant the petition, and hold that the 90-day preventive suspension order issued against
Demigillo was valid.
The Revised Administrative Code of 1987 (RAC) embodies the major structural, functional and
procedural principles and rules of governance of government agencies and constitutional bodies
like the CSC. Section 1, Chapter 1, Subtitle A, Title I, Book V, of the RAC states that the CSC is
the central personnel agency of the government. Section 51 and Section 52, Chapter 6, Subtitle
A, Title I, Book V of the RAC respectively contain the rule on preventive suspension of a civil
service officer or employee pending investigation, and the duration of the preventive suspension,
viz:
Section 51. Preventive Suspension. – The proper disciplining authority may preventively suspend
any subordinate officer or employee under his authority pending an investigation, if the charge
against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect
in the performance of duty, or if there are reasons to believe that the respondent is guilty of
charges which would warrant his removal from the service.
Section 52. Lifting of Preventive Suspension Pending Administrative Investigation. – When the
administrative case against the officer or employee under preventive suspension is not finally
decided by the disciplining authority within the period of ninety (90) days after the date of
suspension of the respondent who is not a presidential appointee, the respondent shall be
automatically reinstated in the service: Provided, That when the delay in the disposition of the
case is due to the fault, negligence or petition of the respondent, the period of delay shall not be
counted in computing the period of suspension herein provided.
Under Section 51, supra, the imposition of preventive suspension by the proper disciplining
authority is authorized provided the charge involves dishonesty, oppression, or grave
misconduct, or neglect in the performance of duty, or if there are reasons to believe that the
respondent is guilty of charges which would warrant his removal from the service. Section 51
nowhere states or implies that before a preventive suspension may issue there must be proof that
the subordinate may unduly influence the witnesses against him or may tamper the documentary
evidence on file in her office.
In Gloria v. Court of Appeals,14 several public school teachers were preventively suspended for
90 days while being investigated for the charge of grave misconduct, among others. Citing
Section 51 of the RAC, the Court sustained the imposition of the 90-day preventive suspension
pending investigation of the charges, saying:
The preventive suspension of civil service employees charged with dishonesty, oppression or
grave misconduct, or neglect of duty is authorized by the Civil Service Law. It cannot, therefore,
be considered "unjustified," even if later the charges are dismissed so as to justify the payment of
salaries to the employee concerned. It is one of those sacrifices which holding a public office
requires for the public good xxx.15
Pursuant to its rule-making authority, the CSC promulgated the Uniform Rules on August 31,
1999. Section 19 and Section 20 of Rule II of the Uniform Rules defined the guidelines in the
issuance of an order of preventive suspension and the duration of the suspension, to wit:
Section 19. Preventive Suspension. – Upon petition of the complainant or motu proprio, the
proper disciplining authority may issue an order of preventive suspension upon service of the
Formal Charge, or immediately thereafter to any subordinate officer or employee under his
authority pending an investigation, if the charge involves:
a. dishonesty;
b. oppression;
c. grave misconduct;
d. neglect in the performance of duty; or
e. if there are reasons to believe that the respondent is guilty of charges which
would warrant his removal from the service.
An order of preventive suspension may be issued to temporarily remove the respondent from the
scene of his misfeasance or malfeasance and to preclude the possibility of exerting undue
influence or pressure on the witnesses against him or tampering of documentary evidence on file
with his Office.
In lieu of preventive suspension, for the same purpose, the proper disciplining authority or head
of office may reassign respondent to other unit of the agency during the formal hearings.
Section 20. Duration of Preventive Suspension. – When the administrative case against an officer
or employee under preventive suspension is not finally decided by the disciplining authority
within the period of ninety (90) days after the date of his preventive suspension, unless otherwise
provided by special law, he shall be automatically reinstated in the service; provided that, when
the delay in the disposition of the case is due to the fault, negligence or petition of the
respondent, the period of delay should not be included in the counting of the 90 calendar days
period of preventive suspension. Provided further that should the respondent be on
Maternity/Paternity leave, said preventive suspension shall be deferred or interrupted until such
time that said leave has been fully enjoyed.
It is clear from Section 19, supra, that before an order of preventive suspension pending an
investigation may validly issue, only two prerequisites need be shown, namely: (1) that the
proper disciplining authority has served a formal charge to the affected officer or employee; and
(2) that the charge involves either dishonesty, oppression, grave misconduct, neglect in the
performance of duty, or if there are reasons to believe that the respondent is guilty of the charges
which would warrant her removal from the service. Proof showing that the subordinate officer or
employee may unduly influence the witnesses against her or may tamper the documentary
evidence on file in her office is not among the prerequisites.
Preventing the subordinate officer or employee from influencing the witnesses and tampering the
documentary evidence under her custody are mere purposes for which an order of preventive
suspension may issue as reflected under paragraph 2 of Section 19, supra. This is apparent in the
phrase "for the same purpose" found in paragraph 3 of Section 19. A "purpose" cannot be
considered and understood as a "condition." A purpose means "reason for which something is
done or exists," while a condition refers to a "necessary requirement for something else to
happen;" or is a "restriction, qualification."16 The two terms have different meanings and
implications, and one cannot substitute for the other.
In Gloria v. Court of Appeals,17 we stated that preventive suspension pending investigation "is a
measure intended to enable the disciplining authority to investigate charges against respondent
by preventing the latter from intimidating or in any way influencing witnesses against him." As
such, preventing the subordinate officer or employee from intimidating the witnesses during
investigation or from tampering the documentary evidence in her office is a purpose, not a
condition, for imposing preventive suspension, as shown in the use of the word "intended."
Relevantly, CSC Resolution No. 030502, which was issued on May 5, 2003 for the proper
enforcement of preventive suspension pending investigation, provides in part as follows:
WHEREAS, Sections 51 and 52, Chapter 6, Subtitle A, Title I, Book V of the Administrative
Code of 1987, set out the controlling standards on the imposition of preventive suspension, as
follows:
xxxx
WHEREAS, in order to effectuate the afore-quoted provisions of law, the Civil Service
Commission, as the central personnel agency of the government empowered, inter alia, with the
promulgation, amendment and enforcement of rules and regulations intended to carry out into
effect the provisions of the Civil Service Law and other pertinent laws, adopted Sections 19, 20,
and 21 of the Uniform Rules on Administrative Cases in the Civil Service (CSC Memorandum
Circular No. 19, s. 1999), to wit:
xxxx
4. The imposition of preventive suspension shall be confined to the well-defined instances set
forth under the pertinent provisions of the Administrative Code of 1987 and the Local
Government Code of 1991. Both of these laws decree that recourse may be had to preventive
suspension where the formal charge involves any of the following administrative offenses, or
under the circumstances specified in paragraph (e) herein:
a. Dishonesty;
b. Oppression;
c. Grave Misconduct;
d. Neglect in the performance of duty; or
e. If there are reasons to believe that the respondent is guilty of the charge/s,
which would warrant his removal from the service.
xxxx
a. A declaration by a competent authority that an order of preventive suspension is null and void
on its face entitles the respondent official or employee to immediate reinstatement and payment
of back salaries corresponding to the period of the unlawful preventive suspension.
The phrase "null and void on its face" in relation to a preventive suspension order imports any of
the following circumstances:
i) The order was issued by one who is not authorized by law;
ii) The order was not premised on any of the grounds or causes warranted by law;
iii) The order of suspension was without a formal charge; or
iv) While lawful in the sense that it is based on the enumerated grounds, the duration of the
imposed preventive suspension has exceeded the prescribed periods, in which case the payment
of back salaries shall correspond to the excess period only.
CSC Resolution No. 030502 apparently reiterates the rule stated in Section 19 of the Uniform
Rules, supra, that for a preventive suspension to issue, there must be a formal charge and the
charge involves the offenses enumerated therein. The resolution considers an order of preventive
suspension as null and void if the order was not premised on any of the mentioned grounds, or if
the order was issued without a formal charge. As in the case of Section 19, the resolution does
not include as a condition for issuing an order of preventive suspension that there must be proof
adduced showing that the subordinate officer or employee may unduly influence the witnesses
against her or tamper the documentary evidence in her custody.
Consequently, the CSC and the CA erred in making the purpose of preventive suspension a
condition for its issuance.1âwphi1 Although, as a rule, we defer to the interpretation by
administrative agencies like the CSC of their own rules, especially if the interpretation is
affirmed by the CA, we withhold deference if the interpretation is palpably erroneous,18 like in
this instance.
We hold that TIDCORP’s issuance against Demigillo of the order for her 90-day preventive
suspension pending the investigation was valid and lawful.
WHEREFORE, we GRANT the petition for review on certiorari; SET ASIDE the decision of
the Court of Appeals promulgated on November 7, 2006, and DECLARE AS VALID the order
for the preventive suspension for 90 days of MA. ROSARIO S. MANALANG-DEMIGILIO
pending her investigation for grave misconduct.
The respondent shall pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

(On Official Leave)

ROBERTO A. ABAD
Associate Justice
Associate Justice


CERTIFICATION
Pursuant to Section 13, Article VII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the court.

Chief Justice
Footnotes
1
Sections 2 and 3 of Republic Act No. 8494.
2
Rollo, pp. 56-59.
3
Id.
4
Id. at 60-68.
5
Id. at 124-130.
6
Id. at 128.
7
Id. at 129
8
Id. at 131-137.
9
Id. at 191-204.
10
Id. at 194-195.
11
Id. at 45-53.
12
Id. at 49-52.
13
Id. at 18-39.
14
G.R. No. 131012, April 21, 1999, 306 SCRA 287.
15
Id. at 301.
16
Collins, English Dictionary, 1999 Edition.
17
Supra, note 12, at 297.
18
Eastern Telecommunications Philippines, Inc. vs. International Communication
Corporation, G.R. No. 135992, January 31, 2006, 481 SCRA 163, 167.
SUPREME COURT
Manila
EN BANC
G.R. No. 196355 September 18, 2012
BIENVENIDO WILLIAM D. LLOREN, Petitioner,

vs.
THE COMMISSION ON ELECTIONS and ROGELIO PUA, JR., Respondents.
DECISION
BERSAMIN, J.:
This special civil action for certiorari seeks to set aside the dismissal by the First Division of the
Commission on Elections (COMELEC) of petitioner’s appeal taken in his election protest on the
ground that he did not pay the appeal fee on time and the denial of his motion for reconsideration
by the COMELEC En Banc on the ground that he did not pay the motion fee on time as required
by the rules of the COMELEC.
The dismissal of petitioner’s appeal was through the order issued on January 31, 2011 by the
First Division of the COMELEC,1 while the denial of the motion for reconsideration was through
the order dated March 16, 2011 of the COMELEC En Banc.2
Antecedents
Petitioner and respondent Rogelio Pua, Jr. (Pua) were the candidates for Vice-Mayor of the
Municipality of Inopacan, Leyte in the May 10, 2010 Automated National and Local Elections.
The Municipal Board of Canvassers proclaimed Pua as the winning candidate with a plurality of
752 votes for garnering 5,682 votes as against petitioner’s 4,930 votes.
Alleging massive vote-buying, intimidation, defective PCOS machines in all the clustered
precincts, election fraud, and other election-related manipulations, petitioner commenced
Election Protest Case (EPC) No. H-026 in the Regional Trial Court (RTC) in Hilongos, Leyte.
In his answer with special and affirmative defenses and counterclaim, Pua alleged that the
election protest stated no cause of action, was insufficient in form and content, and should be
dismissed for failure of petitioner to pay the required cash deposit.
On November 12, 2012, the RTC dismissed the election protest for insufficiency in form and
substance and for failure to pay the required cash deposit,3 viz:
ALL THE FOREGOING CONSIDERED, for insufficiency in form and content as required
under Rule 2, Sec. 10 (c) (ii) and (iv) and for failing to make the required cash deposit within the
given period, the instant election protest is hereby DISMISSED.
With costs against the protestant.
SO ORDERED.4
On November 17, 2010, petitioner filed a notice of appeal in the RTC,5 and paid the appeal fee
of P 1,000.00 to the same court. The RTC granted due course to the appeal on November 24,
2010.
On December 2, 2010, the fifteenth day from the filing of the notice of appeal, petitioner
remitted the appeal fee of P 3,200.00 to the COMELEC Electoral Contests Adjudication
Department (ECAD) by postal money order.6
Through the first assailed order of January 31, 2011, however, the COMELEC First Division
dismissed the appeal on the ground of petitioner’s failure to pay the appeal fee within the period
set under Section 4, Rule 40 of the COMELEC Rules of Procedure,7 holding:
The Commission (First division) RESOLVED as it hereby RESOLVES to DISMISS the instant
appeal case for protestant-appellant’s failure to pay the amount of Three thousand Pesos
(Php3,000.00) appeal fee within the reglementary period under the 1993 Comelec Rules of
Procedure as amended by Comelec Resolution No. 02-0130 dated 18 September 2002.
Section 4, Rule 40 of the Comelec Rules of Procedure mandates the payment of the appeal fee
within the period to file the notice of appeal or five (5) days from receipt of the decision sought
to be appealed, while Sec. 9, Rule 22 of the same Rules provides that failure to pay the appeal
fee is a ground for the dismissal of the appeal. These provisions were reinforced by the ruling of
the Supreme Court in the case of Divinagracia vs. Comelec (G.R. Nos. 186007 & 186016)
promulgated on 27 July 2009. The Ruling declared that for notices of appeal filed after its
promulgation, errors in the matters of non-payment or incomplete payment of appeal fees in the
court a quo and the Commission on Elections are no longer excusable.
SO ORDERED.
Petitioner moved for the reconsideration of the dismissal on February 14, 2011, and later sent a
notice dated March 3, 2011, stating that he paid the motion fee of P 300.00 by postal money
order.
On March 16, 2011, the COMELEC En Banc denied petitioner’s motion for reconsideration
through the second assailed order, viz: 8
xxx the Commission En Banc hereby resolves to DENY the same for protestant-appellant’s
FAILURE to PAY the required motion fees prescribed under Section 7 (f), Rule 40, Comelec
Rules of Procedure, as amended by Comelec Minute Resolution No. 02-0130 dated September
18, 2002, in relation to Section 18, Rule 40, same Comelec Rules.
In the same order of March 16, 2011, the COMELEC En Banc directed the Clerk of the
Commission, ECAD, to issue an entry of judgment and to record the entry of judgment in the
Book of Entries of Judgment.
Aggrieved, petitioner commenced this special civil action for certiorari to annul the assailed
orders of the COMELEC.
Issue
Petitioner contends that he timely filed his notice of appeal in the RTC and timely paid the
appeal fee of P 1,000.00 on November 17, 2010; and that he also paid the appeal fee of P
3,200.00 to the COMELEC ECAD on December 2, 2010 within the 15-day reglementary period
counted from the filing of the notice of appeal, conformably with Resolution No. 8486 dated July
15, 2008.
In his comment, Pua maintains that petitioner paid the P 3,200.00 beyond the five-day
reglementary period under Section 4, Rule 40 of the COMELEC Rules of Procedure; and that
petitioner did not pay the motion fee of P 300.00 prescribed under Section 7(f), Rule 40 of the
same rules. Hence, Pua submits that the dismissal of petitioner’s appeal and denial of his motion
for reconsideration did not constitute grave abuse of discretion.
The issue of whether the COMELEC committed grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the assailed orders is approached through two questions: firstly,
the procedural, which concerns the determination of whether or not petitioner timely paid the
appeal fee and motion fee under the COMELEC Rules of Procedure; and, secondly, the
substantive, which delves on whether or not the appeal may still proceed.
Ruling
The petition is meritorious as to the procedural question, but not as to the substantive question.
1.
Procedural Question:
Petitioner timely perfected his appeal
The rules on the timely perfection of an appeal in an election case requires two different appeal
fees, one to be paid in the trial court together with the filing of the notice of appeal within five
days from notice of the decision, and the other to be paid in the COMELEC Cash Division
within the 15-day period from the filing of the notice of appeal.
In A.M. No. 07-4-15-SC, the Court promulgated the Rules of Procedure In Election Contests
Before The Courts Involving Elective Municipal and Barangay Officials (hereafter, the Rules in
A.M. No. 07-4-15-SC), effective on May 15, 2007, to set down the procedure for election
contests and quo warranto cases involving municipal and barangay officials that are commenced
in the trial courts. The Rules in A.M. No. 07-4-15-SC superseded Rule 35 ("Election Contests
Before Courts of General Jurisdiction") and Rule 36 ("Quo Warranto Case Before Courts of
General Jurisdiction") of the 1993 COMELEC Rules of Procedure.
Under Section 8,9 of Rule 14 of the Rules in A.M. No. 07-4-15-SC, an aggrieved party may
appeal the decision of the trial court to the COMELEC within five days after promulgation by
filing a notice of appeal in the trial court that rendered the decision, serving a copy of the notice
of appeal on the adverse counsel or on the adverse party if the party is not represented by
counsel. Section 9,10 of Rule 14 of the Rules in A.M. No. 07-4-15-SC prescribes for that purpose
an appeal fee of P 1,000.00 to be paid to the trial court rendering the decision simultaneously
with the filing of the notice of appeal.
It should be stressed, however, that the Rules in A.M. No. 07-4-15-SC did not supersede the
appeal fee prescribed by the COMELEC under its own rules of procedure. As a result, "the
requirement of two appeal fees by two different jurisdictions caused a confusion in the
implementation by the COMELEC of its procedural rules on the payment of appeal fees
necessary for the perfection of appeals."11 To remove the confusion, the COMELEC issued
Resolution No. 8486,12 effective on July 24, 2008,13 whereby the COMELEC clarified the rules
on the payment of the two appeal fees by allowing the appellant to pay the COMELEC’s appeal
fee of P 3,200.00 at the COMELEC’s Cash Division through the ECAD or by postal money
order payable to the COMELEC within a period of 15 days from the time of the filing of the
notice of appeal in the trial court, to wit:
xxxx
1. That if the appellant had already paid the amount of P 1,000.00 before the Regional Trial
Court, Metropolitan Trial Court, Municipal Trial Court or lower courts within the five-day
period, pursuant to Section 9, Rule 14 of the Rules of Procedure in Election Contests Before the
Courts Involving Elective Municipal and Barangay Officials (Supreme Court Administrative
Order No. 07-4-15) and his Appeal was given due course by the Court, said appellant is required
to pay the Comelec appeal fee of P 3,200.00 at the Commission’s Cash Division through the
Electoral Contests Adjudication Department (ECAD) or by postal money order payable to the
Commission on Elections through ECAD, within a period of fifteen days (15) from the time of
the filing of the Notice of Appeal with the lower court. If no payment is made within the
prescribed period, the appeal shall be dismissed pursuant to Section 9 (a) of Rule 22 of the
COMELEC Rules of Procedure, which provides:
Sec. 9. Grounds for Dismissal of Appeal. — The appeal may be dismissed upon motion of either
party or at the instance of the Commission on any of the following grounds:
(a) Failure of the appellant to pay the correct appeal fee; xxx
2. That if the appellant failed to pay the P 1,000.00-appeal fee with the lower court within the
five (5) day period as prescribed by the Supreme Court New Rules of Procedure but the case was
nonetheless elevated to the Commission, the appeal shall be dismissed outright by the
Commission, in accordance with the aforestated Section 9 (a) of Rule 22 of the Comelec Rules
of Procedure.
xxxx
Following the clarification made by the COMELEC in Resolution No. 8486, the Court declared
an end to the confusion arising from the requirement of two appeal fees effective on July 27,
2009, the date of promulgation of the ruling in Divinagracia, Jr. v. Commission on Elections14
by announcing that "for notices of appeal filed after the promulgation of this decision, errors
in the matter of non-payment or incomplete payment of the two appeal fees in election
cases are no longer excusable."15
In light of the foregoing, the Court finds that petitioner perfected his appeal of the decision
rendered on November 12, 2012 by the RTC in EPC No. H-026. He filed his notice of appeal
and paid the P 1,000.00 appeal fee to the RTC on November 17, 2012. Such filing and payment,
being done within five days from the promulgation of the decision, complied with Section 8,
Rule 14 of the Rules in A.M. No. 07-4-15-SC. Thereafter, he paid the appeal fee of P 3,200.00 to
the COMELEC Cash Division through the ECAD on December 2, 2012. Such payment, being
done on the fifteenth day from his filing of the notice of appeal in the RTC, complied with
Yet, in determining whether petitioner had perfected his appeal, the COMELEC First Division
relied on Section 4 of Rule 40 of its 1993 Rules of Procedure, a provision that required an
appellant to pay the appeal fee prescribed by the COMELEC within the period to file the notice
of appeal.16
The reliance on Section 4 of Rule 40 of the COMELEC 1993 Rules of Procedure was plainly
arbitrary and capricious. The COMELEC First Division thereby totally disregarded Resolution
No. 8486, whereby the COMELEC revised Section 4 of Rule 40 of the 1993 Rules of Procedure
by expressly allowing the appellant "to pay the Comelec appeal fee of P 3,200.00 at the
Commission’s Cash Division through the Electoral Contests Adjudication Department (ECAD)
or by postal money order payable to the Commission on Elections through ECAD, within a
period of fifteen days (15) from the time of the filing of the Notice of Appeal with the lower
court." In effect, the period of perfecting the appeal in the COMELEC was extended from the
original period of five days counted from promulgation of the decision by the trial court to a
longer period of 15 days reckoned from the filing of the notice of appeal in the trial court.
Accordingly, the order issued on January 31, 2011 by the COMELEC First Division was null
and void for being contrary to Resolution No. 8486.
As to the order issued on March 16, 2011 by the COMELEC En Banc, the Court finds that the
COMELEC En Banc was capricious and arbitrary in thereby denying petitioner’s motion for
reconsideration on the ground that he did not simultaneously pay the motion fee of P 300.00
prescribed by Section 7(f), Rule 40 of the 1993 Rules of Procedure.
The non-payment of the motion fee of P 300.00 at the time of the filing of the motion for
reconsideration did not warrant the outright denial of the motion for reconsideration, but might
only justify the COMELEC to refuse to take action on the motion for reconsideration until the
fees were paid, or to dismiss the action or proceeding when no full payment of the fees is
ultimately made. The authority to dismiss is discretionary and permissive, not mandatory and
exclusive, as expressly provided in Section 18, Rule 40 of the 1993 Rules of Procedure itself, to
wit:
Section 18. Non-payment of Prescribed Fees. - If the fees above prescribed are not paid, the
Commission may refuse to take action thereon until they are paid and may dismiss the action or
the proceeding. (emphasis supplied)
The evident intent of rendering Section 18, Rule 40 of the 1993 Rules of Procedure discretionary
and permissive is to accord the movant an opportunity to pay the motion fee in full. The dire
outcome of denial of the motion for reconsideration should befall the movant only upon his
deliberate or unreasonable failure to pay the fee in full. It appears, however, that petitioner’s
failure to pay the motion fee simultaneously with his filing of the motion for reconsideration was
neither deliberate nor unreasonable. He actually paid the fee by postal money order on March 3,
2011.17
In light of his having complied with the requirements for a timely perfection of the appeal in
both the RTC and the COMELEC, and considering that he actually paid the motion fee, the
COMELEC En Banc’s strict and rigid application of the discretionary and permissive rule
amounted to giving undue primacy to technicality over substance. That outcome would not be
just to petitioner, for the COMELEC En Banc would close its eyes to the patent error committed
by the First Division in entirely ignoring Resolution No. 8486. Accordingly, the assailed order of
March 16, 2011 is another nullity to be struck down.
2.
Substantive Question:
Petitioner’s election protest lacks merit
Nonetheless, we affirm the dismissal by the RTC of EPC No. H-026 for being in accord with the
Rules in A.M. No. 10-4-1-SC.
Section 10(c), Rule 2 of the Rules in A.M. No. 10-4-1-SC pertinently provides as follows:
Section 10. Contents of the protest or petition.—
xxxx
c. An election protest shall also state:
(i) that the protestant was a candidate who had duly filed a certificate of candidacy and had been
voted for the same office;
(ii) the total number of precincts in the municipality;
(iii) the protested precincts and votes of the parties in the protested precincts per the Statement of
Votes by Precinct or, if the votes of the parties are not specified, an explanation why the votes
are not specified; and
(iv) a detailed specification of the acts or omissions complained of showing the electoral frauds,
anomalies or irregularities in the protested precincts. (Emphasis supplied)
As the findings of the RTC show, petitioner did not indicate the total number of precincts in the
municipality in his election protest.1âwphi1 The omission rendered the election protest
insufficient in form and content, and warranted its summary dismissal, in accordance with
Section 12, Rule 2 of the Rules in A.M. No. 10-4-1-SC, to wit:
Section 12. Summary dismissal of election contests. — The court shall summarily dismiss, motu
proprio, an election protest, counter-protest or petition for quo warranto on any of the following
grounds:
(a) The court has no jurisdiction over the subject matter;
(b) The petition is insufficient in form and content as required under Section 10;
(c) The petition is filed beyond the period prescribed in these Rules;
(d) The filing fee is not paid within the period for filing the election protest or petition for quo
warranto; and
(e) In a protest case where cash deposit is required, the deposit is not paid within five (5) days
from the filing of the protest. (Emphasis supplied)
Likewise, the RTC found that the cash deposit made by petitioner was insufficient. Considering
that the Court cannot disturb the findings on the insufficiency of petitioner’s cash deposit made
by the trial court, that finding was another basis for the summary dismissal of the election protest
under Section 12.
We note that the summary dismissal of the election protest upon any of the grounds mentioned in
Section 12 is mandatory.
WHEREFORE, the Court PARTIALLY GRANTS the petition for certiorari; ANNULS AND
SETS ASIDE the assailed orders of the COMELEC First Division and the COMELEC En Banc
respectively dated January 31, 2011 and March 16, 2011; AFFIRMS the Decision rendered on
November 12, 2010 by the Regional Trial Court dismissing Election Protest Case No. H-026 for
insufficiency in form and content of the election protest as well as for insufficiency of
protestant’s cash deposit; and ORDERS petitioner to pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

(On official Leave)

ROBERTO A. ABAD
Associate Justice
Associate Justice


CERTIFICATION
above Decision had been reached in consultation before the case was assigned to the writer of the

Chief Justice
Footnotes
1
Rollo, p. 23.
2
Id. at 25-27.
3
Id. at 74-83.
4
Id. at 83.
5
Id. at 84-85.
6
Id. at 89.
7
Id. at 24.
8
Id. at 28.
9
Section 8. Appeal. — An aggrieved party may appeal the decision to the Commission
on Elections, within five days after promulgation, by filing a notice of appeal with the
court that rendered the decision, with copy served on the adverse counsel or party if not
represented by counsel.
10
Section 9. Appeal Fee. — The appellant in an election contest shall pay to the court
that rendered the decision an appeal fee of One Thousand Pesos (P 1,000.00),
simultaneously with the filing of the notice of appeal.
11
Divinagracia, Jr. v. Commission on Elections, G.R. Nos. 186007 & 186016, July 27,
2009, 594 SCRA 147, 158.
12
Entitled In the Matter of Clarifying the Implementation of COMELEC Rules Re:
Payment Of Filing Fees for Appealed Cases involving Barangay and Municipal Elective
Positions from the Municipal Trial Courts, Municipal Circuit Trial Courts, Metropolitan
Trial Courts and Regional Trial Courts.
13
Resolution No. 8486 was to take effect "on the seventh day following its publication"
in two newspapers of general circulation; the effectivity started on July 24,
2008considering that the publication took place on July 17, 2008.
14
Supra, note 11, at 161.
15
Italics and bold emphasis are part of the original text of the ruling.
16
Section 4. Where and When to Pay. - The fees prescribed in Sections 1, 2 and 3 hereof
shall be paid to, and deposited with, the Cash Division of the Commission within a period
to file the notice of appeal.
17
Rollo, p. 95 (it is noted that the official receipt bears the date of March 16, 2011 as date
of receipt).
SUPREME COURT
Manila
EN BANC
G.R. No. 196804 October 9, 2012
MAYOR BARBARA RUBY C. TALAGA, Petitioner,

vs.
COMMISSION ON ELECTIONS and RODERICK A. ALCALA, Respondents.
x-----------------------x
G.R. No. 197015
PHILIP M. CASTILLO, Petitioner,

vs.
COMMISSION ON ELECTIONS, BARBARA RUBY TALAGA and RODERICK A.
ALCALA, Respondents.
DECISION
BERSAMIN, J.:
In focus in these consolidated special civil actions are the disqualification of a substitute who
was proclaimed the winner of a mayoralty election; and the ascertainment of who should assume
the office following the substitute’s disqualification.
The consolidated petitions for certiorari seek to annul and set aside the En Banc Resolution
issued on May 20, 2011 in SPC No. 10-024 by the Commission on Elections (COMELEC), the
dispositive portion of which states:
WHEREFORE, judgment is hereby rendered:
1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the Second
Division;
2. GRANTING the petition in intervention of Roderick A. Alcala;
3. ANNULLING the election and proclamation of respondent Barbara C. Talaga as

mayor of Lucena City and CANCELLING the Certificate of Canvass and Proclamation
issued therefor;
4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging the
functions of the Office of the Mayor;
5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the
proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under Section 44
of the Local Government Code;
6. DIRECTING the Clerk of Court of the Commission to furnish copies of this

Resolution to the Office of the President of the Philippines, the Department of Interior
and Local Government, the Department of Finance and the Secretary of the Sangguniang
Panglunsod of Lucena City.
Let the Department of Interior and Local Government and the Regional Election Director of
Region IV of COMELEC implement this resolution.
SO ORDERED.1
Antecedents
On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M. Castillo
(Castillo) respectively filed their certificates of candidacy (CoCs) for the position of Mayor of
Lucena City to be contested in the scheduled May 10, 2010 national and local elections.2
Ramon, the official candidate of the Lakas-Kampi-CMD,3 declared in his CoC that he was
eligible for the office he was seeking to be elected to.
Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition
denominated as In the Matter of the Petition to Deny Due Course to or Cancel Certificate of
Candidacy of Ramon Y. Talaga, Jr. as Mayor for Having Already Served Three (3) Consecutive
Terms as a City Mayor of Lucena, which was docketed as SPA 09-029 (DC).4 He alleged
therein that Ramon, despite knowing that he had been elected and had served three consecutive
terms as Mayor of Lucena City, still filed his CoC for Mayor of Lucena City in the May 10, 2010
national and local elections.
The pertinent portions of Castillo’s petition follow:
1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao

Crossing, Lucena City but may be served with summons and other processes of this
Commission at the address of his counsel at 624 Aurora Blvd., Lucena City 4301;
2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a resident of
Barangay Ibabang Iyam, Lucena City and with postal address at the Office of the City
Mayor, City Hall, Lucena City, where he may be served with summons and other
processes of this Commission;
3. Petitioner, the incumbent city vice-mayor of Lucena having been elected during the
2007 local elections, is running for city mayor of Lucena under the Liberal party this
coming 10 May 2010 local elections and has filed his certificate of candidacy for city
mayor of Lucena;
4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and 2007
local elections based on the records of the Commission on Elections of Lucena City and
had fully served the aforesaid three (3) terms without any voluntary and involuntary
interruption;
5. Except the preventive suspension imposed upon him from 13 October 2005 to 14
November 2005 and from 4 September 2009 to 30 October 2009 pursuant to
Sandiganbayan 4th Division Resolution in Criminal Case No. 27738 dated 3 October
2005, the public service as city mayor of the respondent is continuous and uninterrupted
under the existing laws and jurisprudence;
6. There is no law nor jurisprudence to justify the filing of the certificate of candidacy of
the respondent, hence, such act is outrightly unconstitutional, illegal, and highly immoral;
7. Respondent, knowing well that he was elected for and had fully served three (3)
consecutive terms as a city mayor of Lucena, he still filed his Certificate of Candidacy for
City Mayor of Lucena for this coming 10 May 2010 national and local elections;
8. Under the Constitution and existing Election Laws, New Local Government Code of
the Philippines, and jurisprudence the respondent is no longer entitled and is already
disqualified to be a city mayor for the fourth consecutive term;
9. The filing of the respondent for the position of city mayor is highly improper, unlawful
and is potentially injurious and prejudicial to taxpayers of the City of Lucena; and
10. It is most respectfully prayed by the petitioner that the respondent be declared
disqualified and no longer entitled to run in public office as city mayor of Lucena City
based on the existing law and jurisprudence.5
The petition prayed for the following reliefs, to wit:
WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy

filed by the respondent be denied due course to or cancel the same and that he be declared as a
disqualified candidate under the existing Election Laws and by the provisions of the New Local
Government Code.6 (Emphasis supplied.)
Ramon countered that that the Sandiganbayan had preventively suspended him from office
during his second and third terms; and that the three-term limit rule did not then apply to him
pursuant to the prevailing jurisprudence7 to the effect that an involuntary separation from office
amounted to an interruption of continuity of service for purposes of the application of the three-
term limit rule.
In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino, Jr. v.
Commission on Elections,8 holding that preventive suspension, being a mere temporary
incapacity, was not a valid ground for avoiding the effect of the three-term limit rule. Thus, on
December 30, 2009, Ramon filed in the COMELEC a Manifestation with Motion to Resolve,
taking into account the intervening ruling in Aldovino. Relevant portions of his Manifestation
with Motion to Resolve are quoted herein, viz:
4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena City,
the rule that ‘where the separation from office is caused by reasons beyond the control of the
officer – i.e. involuntary – the service of term is deemed interrupted’ has not yet been overturned
by the new ruling of the Supreme Court. As a matter of fact, the prevailing rule then of the
Honorable Commission in [sic] respect of the three (3)-term limitation was its decision in the
case of Aldovino, et al. vs. Asilo where it stated:
"Thus, even if respondent was elected during the 2004 elections, which was supposedly his third
and final term as city councilor, the same cannot be treated as a complete service or full term in
office since the same was interrupted when he was suspended by the Sandiganbayan Fourth
Division. And the respondent actually heeded the suspension order since he did not receive his
salary during the period October 16-31 and November 1-15 by reason of his actual suspension
from office. And this was further bolstered by the fact that the DILG issued a
Memorandum directing him, among others, to reassume his position." (Emphasis supplied.)
5. Clearly, there was no misrepresentation on the part of respondent as would constitute a ground
for the denial of due course to and/or the cancellation of respondent’s certificate of candidacy at
the time he filed the same. Petitioner’s ground for the denial of due course to and/or the
cancellation of respondent’s certificate of candidacy thus has no basis, in fact and in law, as there
is no ground to warrant such relief under the Omnibus Election Code and/or its implementing
laws.
6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on the three
(3)-term limitation, respondent acknowledges that he is now DISQUALIFIED to run for the
position of Mayor of Lucena City having served three (3) (albeit interrupted) terms as Mayor of
Lucena City prior to the filing of his certificate of candidacy for the 2010 elections.
7. In view of the foregoing premises and new jurisprudence on the matter, respondent
respectfully submits the present case for decision declaring him as DISQUALIFIED to run for
the position of Mayor of Lucena City.9
Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena City in
the May 10, 2010 national and local elections, Ramon did not withdraw his CoC.
Acting on Ramon’s Manifestation with Motion to Resolve, the COMELEC First Division issued
a Resolution on April 19, 2010,10 disposing as follows:
WHEREFORE, premises considered, the instant Petition is hereby GRANTED. Accordingly,
Ramon Y. Talaga, Jr. is hereby declared DISQUALIFIED to run for Mayor of Lucena City for
the 10 May 2010 National and Local Elections.
SO ORDERED.
Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010
Resolution of the COMELEC First Division.11 Later on, however, he filed at 9:00 a.m. of May 4,
2010 an Ex-parte Manifestation of Withdrawal of the Pending Motion for Reconsideration.12 At
4:30 p.m. on the same date, Barbara Ruby filed her own CoC for Mayor of Lucena City in
substitution of Ramon, attaching thereto the Certificate of Nomination and Acceptance (CONA)
issued by Lakas-Kampi-CMD, the party that had nominated Ramon.13
On May 5, 2010, the COMELEC En Banc, acting on Ramon’s Ex parte Manifestation of

Withdrawal, declared the COMELEC First Division’s Resolution dated April 19, 2010 final and
executory.14
On election day on May 10, 2010, the name of Ramon remained printed on the ballots but the
votes cast in his favor were counted in favor of Barbara Ruby as his substitute candidate,
resulting in Barbara Ruby being ultimately credited with 44,099 votes as against Castillo’s
39,615 votes.15
Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the
suspension of Barbara Ruby’s proclamation.16
It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of its
Law Department,17 gave due course to Barbara Ruby’s CoC and CONA through Resolution No.
8917, thereby including her in the certified list of candidates.18 Consequently, the CBOC
proclaimed Barbara Ruby as the newly-elected Mayor of Lucena City.19
On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the
COMELEC,20 docketed as SPC 10-024. He alleged that Barbara Ruby could not substitute
Ramon because his CoC had been cancelled and denied due course; and Barbara Ruby could not
be considered a candidate because the COMELEC En Banc had approved her substitution three
days after the elections; hence, the votes cast for Ramon should be considered stray.
In her Comment on the Petition for Annulment of Proclamation,21 Barbara Ruby maintained the
validity of her substitution. She countered that the COMELEC En Banc did not deny due course
to or cancel Ramon’s COC, despite a declaration of his disqualification, because there was no
finding that he had committed misrepresentation, the ground for the denial of due course to or
cancellation of his COC. She prayed that with her valid substitution, Section 12 of Republic Act
No. 900622 applied, based on which the votes cast for Ramon were properly counted in her favor.
On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City, sought
to intervene,23 positing that he should assume the post of Mayor because Barbara Ruby’s
substitution had been invalid and Castillo had clearly lost the elections.
On January 11, 2011, the COMELEC Second Division dismissed Castillo’s petition and Alcala’s
petition-in-intervention,24 holding:
In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was the basis
for the proclamation of Ruby on that date. He, however, failed to file any action within the
prescribed period either in the Commission or the Supreme Court assailing the said resolution.
Thus, the said resolution has become final and executory. It cannot anymore be altered or
reversed.
xxxx
x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it was
actually for the disqualification of Ramon for having served three consecutive terms, which is a
ground for his disqualification under the Constitution in relation to Section 4(b)3 of Resolution
8696. There was no mention therein that Ramon has committed material representation that
would be a ground for the cancellation or denial of due course to the CoC of Ramon under
Section 78 of the Omnibus Election Code. The First Division, in fact, treated the petition as one
for disqualification as gleaned from the body of the resolution and its dispositive portion quoted
above. This treatment of the First Division of the petition as one for disqualification only is
affirmed by the fact that its members signed Resolution No. 8917 where it was clearly stated that
the First Division only disqualified Ramon.
Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not applicable.
Ramon was rightly substituted by Ruby. As such, the votes for Ramon cannot be considered as
stray votes but should be counted in favor of Ruby since the substituted and the substitute carry
the same surname – Talaga, as provided in Section 12 of Republic Act No. 9006.
xxxx
Moreover, there is no provision in the Omnibus Election Code or any election laws for that
matter which requires that the substitution and the Certificate of Candidacy of the substitute
should be approved and given due course first by the Commission or the Law Department before
it can be considered as effective. All that Section 77 of the Omnibus Election Code as
implemented by Section 13 of Resolution No. 8678 requires is that it should be filed with the
proper office. The respondent is correct when she argued that in fact even the BEI can receive a
CoC of a substitute candidate in case the cause for the substitution happened between the day
before the election and mid-day of election day. Thus, even if the approval of the substitution
was made after the election, the substitution became effective on the date of the filing of the CoC
with the Certificate of Nomination and Acceptance.
There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor of
Lucena City, the counting of the votes of Ramon in favor of Ruby is proper. The proclamation,
thus, of Ruby as mayor elect of Lucena City is in order. Hence, we find no cogent reason to
annul the proclamation of respondent Barbara Ruby C. Talaga as the duly elected Mayor of the
City of Lucena after the elections conducted on May 10, 2010.25
Acting on Castillo and Alcala’s respective motions for reconsideration, the COMELEC En Banc
issued the assailed Resolution dated May 20, 2011 reversing the COMELEC Second Division’s
ruling.26
Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without a
hearing as a mere incident of the COMELEC’s ministerial duty to receive the COCs of substitute
candidates; (b) Resolution No. 8917 was based on the wrong facts; and (c) Ramon’s
disqualification was resolved with finality only on May 5, 2010, the COMELEC En Banc
concluded that Barbara Ruby could not have properly substituted Ramon but had simply become
an additional candidate who had filed her COC out of time; and held that Vice Mayor Alcala
should succeed to the position pursuant to Section 44 of the Local Government Code (LGC).27
Issues
The core issue involves the validity of the substitution by Barbara Ruby as candidate for the
position of Mayor of Lucena City in lieu of Ramon, her husband.
Ancillary to the core issue is the determination of who among the contending parties should
assume the contested elective position.
Ruling
The petitions lack merit.
1.
Existence of a valid CoC is a condition

sine qua non for a valid substitution
The filing of a CoC within the period provided by law is a mandatory requirement for any person
to be considered a candidate in a national or local election. This is clear from Section 73 of the
Omnibus Election Code, to wit:
Section 73. Certificate of candidacy — No person shall be eligible for any elective public office
unless he files a sworn certificate of candidacy within the period fixed herein.
Section 74 of the Omnibus Election Code specifies the contents of a COC, viz:
Section 74. Contents of certificate of candidacy.—The certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is eligible for
said office; if for Member of the Batasang Pambansa, the province, including its component
cities, highly urbanized city or district or sector which he seeks to represent; the political party to
which he belongs; civil status; his date of birth; residence; his post office address for all election
purposes; his profession or occupation; that he will support and defend the Constitution of the
Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal
orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent
resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge. x x x
The evident purposes of the requirement for the filing of CoCs and in fixing the time limit for
filing them are, namely: (a) to enable the voters to know, at least 60 days prior to the regular
election, the candidates from among whom they are to make the choice; and (b) to avoid
confusion and inconvenience in the tabulation of the votes cast. If the law does not confine to the
duly-registered candidates the choice by the voters, there may be as many persons voted for as
there are voters, and votes may be cast even for unknown or fictitious persons as a mark to
identify the votes in favor of a candidate for another office in the same election.28 Moreover,
according to Sinaca v. Mula,29 the CoC is:
x x x in the nature of a formal manifestation to the whole world of the candidate’s political creed
or lack of political creed. It is a statement of a person seeking to run for a public office certifying
that he announces his candidacy for the office mentioned and that he is eligible for the office, the
name of the political party to which he belongs, if he belongs to any, and his post-office address
for all election purposes being as well stated.
Accordingly, a person’s declaration of his intention to run for public office and his affirmation
that he possesses the eligibility for the position he seeks to assume, followed by the timely filing
of such declaration, constitute a valid CoC that render the person making the declaration a valid
or official candidate.
There are two remedies available to prevent a candidate from running in an electoral race. One is
through a petition for disqualification and the other through a petition to deny due course to or
cancel a certificate of candidacy. The Court differentiated the two remedies in Fermin v.
Commission on Elections,30 thuswise:
x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the
Omnibus Election Code, or Section 40 of the Local Government Code. On the other hand, a
petition to deny due course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different effects. While
a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the
person whose certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC.31
Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election Code
(i.e., prohibited acts of candidates, and the fact of a candidate’s permanent residency in another
country when that fact affects the residency requirement of a candidate) are separate and distinct
from the grounds for the cancellation of or denying due course to a COC (i.e., nuisance
candidates under Section 69 of the Omnibus Election Code; and material misrepresentation
under Section 78 of the Omnibus Election Code), the Court has recognized in Miranda v.
Abaya32 that the following circumstances may result from the granting of the petitions, to wit:
(1) A candidate may not be qualified to run for election but may have filed a valid CoC;
(2) A candidate may not be qualified and at the same time may not have filed a valid
CoC; and
(3) A candidate may be qualified but his CoC may be denied due course or cancelled.
In the event that a candidate is disqualified to run for a public office, or dies, or withdraws his
CoC before the elections, Section 77 of the Omnibus Election Code provides the option of
substitution, to wit:
Section 77. Candidates in case of death, disqualification or withdrawal. — If after the last day for
the filing of certificates of candidacy, an official candidate of a registered or accredited political
party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified
by, the same political party may file a certificate of candidacy to replace the candidate who died,
withdrew or was disqualified. The substitute candidate nominated by the political party
concerned may file his certificate of candidacy for the office affected in accordance with the
preceding sections not later than mid-day of the day of the election. If the death, withdrawal or
disqualification should occur between the day before the election and mid-day of election day,
said certificate may be filed with any board of election inspectors in the political subdivision
where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the
country, with the Commission.
Nonetheless, whether the ground for substitution is death, withdrawal or disqualification of a

candidate, Section 77 of the Omnibus Election Code unequivocally states that only an official
candidate of a registered or accredited party may be substituted.
Considering that a cancelled CoC does not give rise to a valid candidacy,33 there can be no valid
substitution of the candidate under Section 77 of the Omnibus Election Code. It should be clear,
too, that a candidate who does not file a valid CoC may not be validly substituted, because a
person without a valid CoC is not considered a candidate in much the same way as any person
who has not filed a CoC is not at all a candidate.34
Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the
Omnibus Election Code may not be substituted. A withdrawal of candidacy can only give effect
to a substitution if the substitute candidate submits prior to the election a sworn CoC as required
by Section 73 of the Omnibus Election Code.35
2.
Declaration of Ramon’s disqualification

rendered his CoC invalid; hence, he was not
a valid candidate to be properly substituted
In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of the
COMELEC En Banc that the Castillo petition in SPA 09-029 (DC) was in the nature of a petition
to deny due course to or cancel a CoC under Section 78 of the Omnibus Election Code.
In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on
Elections:36
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based
on the lack of qualifications but on a finding that the candidate made a material representation
that is false, which may relate to the qualifications required of the public office he/she is running
for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she
seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and
statutory provisions on qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is false, the COMELEC, following
the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has
already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253
of the OEC since they both deal with the eligibility or qualification of a candidate, with the
distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the winning candidate.
Castillo’s petition contained essential allegations pertaining to a Section 78 petition, namely: (a)
Ramon made a false representation in his CoC; (b) the false representation referred to a material
matter that would affect the substantive right of Ramon as candidate (that is, the right to run for
the election for which he filed his certificate); and (c) Ramon made the false representation with
the intention to deceive the electorate as to his qualification for public office or deliberately
attempted to mislead, misinform, or hide a fact that would otherwise render him ineligible.37 The
petition expressly challenged Ramon’s eligibility for public office based on the prohibition stated
in the Constitution and the Local Government Code against any person serving three consecutive
terms, and specifically prayed that "the Certificate of Candidacy filed by the respondent Ramon
be denied due course to or cancel the same and that he be declared as a disqualified candidate."38
The denial of due course to or the cancellation of the CoC under Section 78 involves a finding
not only that a person lacks a qualification but also that he made a material representation that is
false.39 A petition for the denial of due course to or cancellation of CoC that is short of the
requirements will not be granted. In Mitra v. Commission on Elections,40 the Court stressed that
there must also be a deliberate attempt to mislead, thus:
The false representation under Section 78 must likewise be a "deliberate attempt to mislead,
misinform, or hide a fact that would otherwise render a candidate ineligible." Given the purpose
of the requirement, it must be made with the intention to deceive the electorate as to the would-
be candidate’s qualifications for public office. Thus, the misrepresentation that Section 78
addresses cannot be the result of a mere innocuous mistake, and cannot exist in a situation where
the intent to deceive is patently absent, or where no deception on the electorate results. The
deliberate character of the misrepresentation necessarily follows from a consideration of the
consequences of any material falsity: a candidate who falsifies a material fact cannot run; if he
runs and is elected, he cannot serve; in both cases, he can be prosecuted for violation of the
election laws.
It is underscored, however, that a Section 78 petition should not be interchanged or confused

with a Section 68 petition. The remedies under the two sections are different, for they are based
on different grounds, and can result in different eventualities.41 A person who is disqualified
under Section 68 is prohibited to continue as a candidate, but a person whose CoC is cancelled or
denied due course under Section 78 is not considered as a candidate at all because his status is
that of a person who has not filed a CoC.42 Miranda v. Abaya43 has clarified that a candidate who
is disqualified under Section 68 can be validly substituted pursuant to Section 77 because he
remains a candidate until disqualified; but a person whose CoC has been denied due course or
cancelled under Section 78 cannot be substituted because he is not considered a
candidate.1âwphi1
To be sure, the cause of Ramon’s ineligibility (i.e., the three-term limit) is enforced both by the
Constitution and statutory law. Article X, Section 8 of the 1987 Constitution provides:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
Section 43 of the Local Government Code reiterates the constitutional three-term limit for all
elective local officials, to wit:
Section 43. Term of Office. – (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned
was elected. (Emphasis supplied.)
The objective of imposing the three-term limit rule was "to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged
stay in the same office." The Court underscored this objective in Aldovino, Jr. v. Commission on
Elections,44 stating:
x x x The framers of the Constitution specifically included an exception to the people’s freedom
to choose those who will govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the
same office. To allow petitioner Latasa to vie for the position of city mayor after having served
for three consecutive terms as a municipal mayor would obviously defeat the very intent of the
framers when they wrote this exception. Should he be allowed another three consecutive terms as
mayor of the City of Digos, petitioner would then be possibly holding office as chief executive
over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years.
This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.
To accord with the constitutional and statutory proscriptions, Ramon was absolutely precluded
from asserting an eligibility to run as Mayor of Lucena City for the fourth consecutive term.
Resultantly, his CoC was invalid and ineffectual ab initio for containing the incurable defect
consisting in his false declaration of his eligibility to run. The invalidity and inefficacy of his
CoC made his situation even worse than that of a nuisance candidate because the nuisance
candidate may remain eligible despite cancellation of his CoC or despite the denial of due course
to the CoC pursuant to Section 69 of the Omnibus Election Code.45
Ramon himself specifically admitted his ineligibility when he filed his Manifestation with
Motion to Resolve on December 30, 2009 in the COMELEC.46 That sufficed to render his CoC
invalid, considering that for all intents and purposes the COMELEC’s declaration of his
disqualification had the effect of announcing that he was no candidate at all.
We stress that a non-candidate like Ramon had no right to pass on to his substitute. As Miranda
v. Abaya aptly put it:
Even on the most basic and fundamental principles, it is readily understood that the concept of a
substitute presupposes the existence of the person to be substituted, for how can a person take the
place of somebody who does not exist or who never was. The Court has no other choice but to
rule that in all the instances enumerated in Section 77 of the Omnibus Election Code, the
existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of
candidacy in the first place because, if the disqualified candidate did not have a valid and
seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not
a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we were to allow
the so-called "substitute" to file a "new" and "original" certificate of candidacy beyond the period
for the filing thereof, it would be a crystalline case of unequal protection of the law, an act
abhorred by our Constitution.47 (Emphasis supplied)
3.
Granting without any qualification of petition in

SPA No. 09-029(DC) manifested COMELEC’s intention to
declare Ramon disqualified and to cancel his CoC
That the COMELEC made no express finding that Ramon committed any deliberate
misrepresentation in his CoC was of little consequence in the determination of whether his CoC
should be deemed cancelled or not.
In Miranda v. Abaya,48 the specific relief that the petition prayed for was that the CoC "be not
given due course and/or cancelled." The COMELEC categorically granted "the petition" and
then pronounced — in apparent contradiction — that Joel Pempe Miranda was "disqualified."
The
Court held that the COMELEC, by granting the petition without any qualification, disqualified
Joel Pempe Miranda and at the same time cancelled Jose Pempe Miranda’s CoC. The Court
explained:
The question to settle next is whether or not aside from Joel "Pempe" Miranda being disqualified
by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been
denied due course and cancelled.
The Court rules that it was.
Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for
the position of Mayor for the City of Santiago be not given due course and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.
(Rollo, p. 31; Emphasis ours.)
In resolving the petition filed by private respondent specifying a very particular relief, the
Comelec ruled favorably in the following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the
Petition. Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for
the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections.
SO ORDERED.
(p.43, Rollo; Emphasis ours.)
From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA
No. 98-019, it is sufficiently clear that the prayer specifically and particularly sought in the
petition was GRANTED, there being no qualification on the matter whatsoever. The
disqualification was simply ruled over and above the granting of the specific prayer for denial of
due course and cancellation of the certificate of candidacy. x x x.49
xxxx
x x x. There is no dispute that the complaint or petition filed by private respondent in SPA No.
98-019 is one to deny due course and to cancel the certificate of candidacy of Jose "Pempe"
Miranda (Rollo, pp. 26-31). There is likewise no question that the said petition was GRANTED
without any qualification whatsoever. It is rather clear, therefore, that whether or not the
Comelec granted any further relief in SPA No. 98-019 by disqualifying the candidate, the fact
remains that the said petition was granted and that the certificate of candidacy of Jose "Pempe"
Miranda was denied due course and cancelled. x x x.50
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular
relief of cancelling or denying due course to the CoC prayed for in the petition by not subjecting
that relief to any qualification.
Miranda v. Abaya applies herein. Although Castillo’s petition in SPA No. 09-029 (DC)
specifically sought both the disqualification of Ramon and the denial of due course to or
cancellation of his CoC, the COMELEC categorically stated in the Resolution dated April 19,
2010 that it was granting the petition. Despite the COMELEC making no finding of material
misrepresentation on the part of Ramon, its granting of Castillo’s petition without express
qualifications manifested that the COMELEC had cancelled Ramon’s CoC based on his apparent
ineligibility. The Resolution dated April 19, 2010 became final and executory because Castillo
did not move for its reconsideration, and because Ramon later withdrew his motion for
reconsideration filed in relation to it.
4.
Elected Vice Mayor must succeed

and assume the position of Mayor
due to a permanent vacancy in the office
On the issue of who should assume the office of Mayor of Lucena City, Castillo submits that the
doctrine on the rejection of the second-placer espoused in Labo, Jr. v. Commission on
Elections51 should not apply to him because Ramon’s disqualification became final prior to the
elections.52 Instead, he cites Cayat v. Commission on Elections,53 where the Court said:
x x x In Labo there was no final judgment of disqualification before the elections. The doctrine
on the rejection of the second placer was applied in Labo and a host of other cases because the
judgment declaring the candidate’s disqualification in Labo and the other cases had not become
final before the elections. To repeat, Labo and the other cases applying the doctrine on the
rejection of the second placer have one common essential condition — the disqualification of the
candidate had not become final before the elections. This essential condition does not exist in the
present case.
Thus, in Labo, Labo’s disqualification became final only on 14 May 1992, three days after the 11
May 1992 elections. On election day itself, Labo was still legally a candidate. In the present case,
Cayat was disqualified by final judgment 23 days before the 10 May 2004 elections. On election
day, Cayat was no longer legally a candidate for mayor. In short, Cayat’s candidacy for Mayor of
Buguias, Benguet was legally non-existent in the 10 May 2004 elections.
The law expressly declares that a candidate disqualified by final judgment before an election
cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of
law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:
Sec. 6. Effect of Disqualification Case.— Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the pendency thereof order
the suspension of the proclamation of such candidate whenever the evidence of his guilt is
strong. (Emphasis added)
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first
sentence of Section 6. The second is when the disqualification becomes final after the elections,
which is the situation covered in the second sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing
the first situation is categorical: a candidate disqualified by final judgment before an election
cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying
Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the
8,164 votes cast in Cayat’s favor are stray. Cayat was never a candidate in the 10 May 2004
elections. Palileng’s proclamation is proper because he was the sole and only candidate, second
to none.54
Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume the
position of Mayor of Lucena City for having obtained the highest number of votes among the
remaining qualified candidates.
It would seem, then, that the date of the finality of the COMELEC resolution declaring Ramon
disqualified is decisive. According to Section 10, Rule 19 of the COMELEC’s Resolution No.
8804,55 a decision or resolution of a Division becomes final and executory after the lapse of five
days following its promulgation unless a motion for reconsideration is seasonably filed. Under
Section 8, Rule 20 of Resolution No. 8804, the decision of the COMELEC En Banc becomes
final and executory five days after its promulgation and receipt of notice by the parties.
The COMELEC First Division declared Ramon disqualified through its Resolution dated April
19, 2010, the copy of which Ramon received on the same date.56 Ramon filed a motion for
reconsideration on April 21, 201057 in accordance with Section 7 of COMELEC Resolution No.
8696,58 but withdrew the motion on May 4, 2010,59 ostensibly to allow his substitution by
Barbara Ruby. On his part, Castillo did not file any motion for reconsideration. Such
circumstances indicated that there was no more pending matter that could have effectively
suspended the finality of the ruling in due course. Hence, the Resolution dated April 19, 2010
could be said to have attained finality upon the lapse of five days from its promulgation and
receipt of it by the parties. This happened probably on April 24, 2010. Despite such finality, the
COMELEC En Banc continued to act on the withdrawal by Ramon of his motion for
reconsideration through the May 5, 2010 Resolution declaring the April 19, 2010 Resolution of
the COMELEC First Division final and executory.
Yet, we cannot agree with Castillo’s assertion that with Ramon’s disqualification becoming final
prior to the May 10, 2010 elections, the ruling in Cayat was applicable in his favor. Barbara
Ruby’s filing of her CoC in substitution of Ramon significantly differentiated this case from the
factual circumstances obtaining in Cayat. Rev. Fr. Nardo B. Cayat, the petitioner in Cayat, was
disqualified on April 17, 2004, and his disqualification became final before the May 10, 2004
elections. Considering that no substitution of Cayat was made, Thomas R. Palileng, Sr., his rival,
remained the only candidate for the mayoralty post in Buguias, Benguet. In contrast, after
Barbara Ruby substituted Ramon, the May 10, 2010 elections proceeded with her being regarded
by the electorate of Lucena City as a bona fide candidate. To the electorate, she became a
contender for the same position vied for by Castillo, such that she stood on the same footing as
Castillo. Such standing as a candidate negated Castillo’s claim of being the candidate who
obtained the highest number of votes, and of being consequently entitled to assume the office of
Mayor.
Indeed, Castillo could not assume the office for he was only a second placer.1âwphi1 Labo, Jr.
should be applied. There, the Court emphasized that the candidate obtaining the second highest
number of votes for the contested office could not assume the office despite the disqualification
of the first placer because the second placer was "not the choice of the sovereign will."60 Surely,
the Court explained, a minority or defeated candidate could not be deemed elected to the office.61
There was to be no question that the second placer lost in the election, was repudiated by the
electorate, and could not assume the vacated position.62 No law imposed upon and compelled the
people of Lucena City to accept a loser to be their political leader or their representative.63
The only time that a second placer is allowed to take the place of a disqualified winning
candidate is when two requisites concur, namely: (a) the candidate who obtained the highest
number of votes is disqualified; and (b) the electorate was fully aware in fact and in law of that
candidate’s disqualification as to bring such awareness within the realm of notoriety but the
electorate still cast the plurality of the votes in favor of the ineligible candidate.64 Under this sole
exception, the electorate may be said to have waived the validity and efficacy of their votes by
notoriously misapplying their franchise or throwing away their votes, in which case the eligible
candidate with the second highest number of votes may be deemed elected.65 But the exception
did not apply in favor of Castillo simply because the second element was absent. The electorate
of Lucena City were not the least aware of the fact of Barbara Ruby’s ineligibility as the
substitute. In fact, the COMELEC En Banc issued the Resolution finding her substitution invalid
only on May 20, 2011, or a full year after the decisions.
On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from assuming
the position of Mayor of Lucena City. To begin with, there was no valid candidate for her to
substitute due to Ramon’s ineligibility. Also, Ramon did not voluntarily withdraw his CoC
before the elections in accordance with Section 73 of the Omnibus Election Code. Lastly, she
was not an additional candidate for the position of Mayor of Lucena City because her filing of
her CoC on May 4, 2010 was beyond the period fixed by law. Indeed, she was not, in law and in
fact, a candidate.66
A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy
should be filled pursuant to the law on succession defined in Section 44 of the LGC, to wit:67
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and
Vice-Mayor. – If a permanent vacancy occurs in the office of the governor or mayor, the vice-
governor or vice-mayor concerned shall become the governor or mayor. x x x
WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS the
Resolution issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the petitioners to
pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice




C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, 1 certify that the conclusions in the

Chief Justice
Footnotes
1
Rollo (G.R. No. 196804), pp. 50-51.
2
Id. at 94, 96.
3
Id. at 221.
4
Id. at 88.
5
Id. at 88-91.
6
Id. at 91.
7
Montebon v. Commission on Elections, G.R. No. 180444, April 9, 2008, 551 SCRA 50,
56.; Lonzanida v. Commission on Elections, G.R. No. 135150, July 28, 1999, 311 SCRA
602, 613; Borja, Jr. v. Commission on Elections, G.R. No. 133495, September 3, 1998,
295 SCRA 157.
8
G.R. No. 184836, December 23, 2009, 609 SCRA 234, 263-264.
9
Rollo (G.R. No. 196804), pp. 99-100.
10
Id. at 102-105.
11
Id. at 106-125.
12
Id. at 126-129.
13
Id. at 130-131.
14
Id. at 133-134.
15
Id. at 140
16
Id. at 135-139.
17
Id. at 179.
18
Id. at 142-144
19
Id. at 145
20
Id. at 185-217.
21
Id. at 283-298.
22
Section 12. Substitution of candidates. – In case of valid substitutions after the official
ballots have been printed, the votes cast for the substituted candidates shall be considered
votes for the substitutes.
23
Rollo (G.R. No. 196804), pp. 305-320.
24
Id. at 79.
25
Id. at 75-78.
26
Id. at 50-51.
27
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,
Mayor, and Vice-Mayor. - If a permanent vacancy occurs in the office of the governor or
mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor.
xxx
28
Miranda v. Abaya, G.R. No. 136351, July 28, 1999, 311 SCRA 617, 625.
29
G.R. No. 135691, September 27, 1999, 315 SCRA 266, 276.
30
G.R. No. 179695, December 18, 2008, 574 SCRA 782.
31
Id. at 794-796.
32
Supra note 28, at 627.
33
Bautista v. Commission on Elections, G.R. No. 133840, November 13, 1998, 298
SCRA 480, 493.
34
Miranda v. Abaya, supra note 28, at 626-627.
35
Luna v. Commission on Elections, G.R. No. 165983, April 24, 2007, 522 SCRA 107,
115.
36
Supra note 30, at 792-794 (bold emphases and underscoring are part of the original
text).
37
Salcedo II v. Commission on Elections, G.R. No. 135886, August 16, 1999, 312 SCRA
447, 455.
38
Rollo (G.R. No. 196804), p. 91.
39
Section 78. Petition to deny due course to or cancel a certificate of candidacy. - A
verified petition seeking to deny due course or to cancel a certificate of candidacy may be
filed by the person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false.
The petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due notice and hearing,
not later than fifteen days before the election.
40
G.R. No. 191938, July 2, 2010, 622 SCRA 744.
41
Fermin v. Commission on Elections, supra note 30, at 794.
42
Id. at 796.
43
44
Supra note 8, at 258; citing Latasa v. Commission on Elections, G.R. No. 154829,
December 10, 2003, 417 SCRA 601.
45
Section 69. Nuisance candidates. - The Commission may motu proprio or upon a
verified petition of an interested party, refuse to give due course to or cancel a certificate
of candidacy if it is shown that said certificate has been filed to put the election process in
mockery or disrepute or to cause confusion among the voters by the similarity of the
names of the registered candidates or by other circumstances or acts which clearly
demonstrate that the candidate has no bona fide intention to run for the office for which
the certificate of candidacy has been filed and thus prevent a faithful determination of the
true will of the electorate
46
Rollo (G.R. No. 196804), pp. 98-101.
47
48
Id.
49
Id. at 628.
50
Id. at 632.
51
G.R. No. 105111 & 105384, July 3, 1992, 211 SCRA 297.
52
Rollo (G.R. No. 197015), pp. 18-19.
53
G.R. No. 163776, April 24, 2007, 522 SCRA 23.
54
Id. at 44-45.
55
In Re: COMELEC Rules of Procedure on Disputes in an Automated Election System
in Connection with the May 10, 2010 Elections (Promulgated on March 22, 2010).
56
Rollo (G.R. No. 196804), p. 106.
57
Id.
58
Section 7. Motion for reconsideration. - A motion to reconsider a Decision, Resolution,
Order or Ruling of a Division shall be filed within three (3) days from the promulgation
thereof. Such motion, if not pro-forma, suspends the execution for implementation of the
Decision, Resolution, Order or Ruling. x x x
59
Rollo (G.R. No. 196804), pp. 126-129.
60
61
Id. at 312.
62
Id. at 309-310; citing Abella v. Commission on Elections, 201 SCRA 253.
63
Gonzalez v. Commission on Elections, G.R. No. 192856, March 8, 2011, 644 SCRA
761, 802; citing Miranda v. Abaya, G.R. No. 136351, July 28, 1999, 311 SCRA 617, 635.
64
Grego v. Commission on Elections, G.R. No. 125955, June 19, 1997, 274 SCRA 481,
501.
65
Labo, Jr. v. Commission on Elections, supra note 51, at 312.
66
Gador v. Commission on Elections, L-52365, January 22, 1980, 95 SCRA 431.
67
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,
Mayor, and Vice-Mayor. – If a permanent vacancy occurs in the office of the governor or
mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor.
xxx
CONCURRING OPINION
VELASCO, JR., J.:
In view of the opinions submitted, it is my view that there was no valid substitution of candidates
for the mayoralty position in Lucena City between Ramon Talaga and his wife, Ruby Talaga. I
likewise opine that considering the judgments on the disqualification of Ruben Talaga and on the
validity of the substitution became final only after the May 10, 2010 elections, the laws of
succession in case of permanent vacancies under Section 44 of the Local Government Code
should apply.
First, Section 77 of the Omnibus Election Code1 is clear that before a substitution of candidates
for an elective position could be validity done, the official candidate of a registered or accredited
political party should die, withdraw or must be qualified for any cause. In the present case, the
records will show that at the time Ruby C. Talaga filed her Certificate of Candidacy, or May 4,
2010, there was still no ground for substitute since the judgment on Ramon Talaga’s
disqualification had not yet attained finality.
Although the Decision of the Comelec was promulgated on April 19, 2010, the five-day period
for its execution or implementation was suspended when Ramon Talaga filed a Motion for
Reconsideration on April 21, 2010. This is clear under Section 2 of Rule 19 of the Comelec
Rules of Procedure, which provides:
Section 2. Period for Filing Motions for Reconsideration. - A motion to reconsider a decision,
resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation
thereof. Such motion, if not proforma, suspends the execution or implementation of the decision,
resolution, order or ruling. (Emphasis supplied)
It also appears that on the morning of May 4, 2012, or before Ruby Talaga filed her Certificate of
Candidacy, Ramon Talaga filed a manifestation to withdraw his Motion for Reconsideration.
However, this manifestation does not have any effect in determining the finality of an action for
disqualification of a candidate. It is significant to note that under the Comelec Rules of
Procedure, an action for disqualification of candidate is a Special Case or Special Action.2 In
relation thereto, Section 13 of Rule 18 of same rules provide that the finality of a judgment in a
Special Action is based on the date of promulgation, to wit:
Section 13. Finality of Decisions or Resolutions. –
(a) In ordinary actions, special proceedings, provisional remedies and special reliefs a
decision or resolution of the Commission en banc shall become final and executory after
thirty (30) days from its promulgation.
(b) In Special Actions and Special Cases a decision or resolutions of the Commission en
banc shall become final and executory after five (5) days from its promulgation unless
restrained by the Supreme Court.
(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a

Division shall become final and executory after the lapse of five (5) days in Special
actions and Special cases and after fifteen (15) days in all other actions or proceedings,
following its promulgation. (Emphasis supplied)
Notably, the finality of the judgment of the Comelec is reckoned from the date of the
promulgation and not from the date of receipt of the resolution, decision or order – which is the
standard rule in non-election related cases. To my mind, the rationale for such requirement
would manifest by relating the aforementioned provision with Section 5 of Rule 18 of the same
Rules, which provides:
Section 5. Promulgation. - The promulgation of a decision or resolution of the Commission or a

Division shall be made on a date previously fixed, of which notice shall be served in advance
upon the parties or their attorneys personally or by registered mail or by telegram. (Emphasis
supplied)
It appears that because of the requirements of ‘advance notice’ and a ‘scheduled date’ of
promulgation, there is an assurance that the parties to an election case would be present on the
date of promulgation. Hence, the actual promulgation of a Comelec decision, order or resolution
constitutes an actual notice to the parties.
In the present case, the five-day period in attaining finality judgment could have been reckoned
from May 5, 2010 or the day when the Comelec En Banc issued an order dismissing the Motion
for Reconsideration filed by Ramon Talaga. However, the records will show that the parties were
not notified of the promulgation of the said May 5, 2010 Decision. In here, the notice of the May
5, 2010 Order of the Comelec En Banc was made only on the next day, or May 6, 2010 and was
received by the parties or their counsels only on May 7, 2012 and May 13, 2010.3 Therefore,
when the parties were not notified of the promulgation of the May 5, 2010 Order of the Comelec
En Banc as required by the Comelec Rules, the judgment on Ramon Talaga’s disqualification
could not be considered as final and executory as to them. Furthermore, even assuming arguendo
the May 6, 2010 Notice was valid, the judgment would attain finality only after five-days from
receipt thereof. Nevertheless, whether it was received on May 7 or May 13, the judgment on
Ramon Talaga’s disqualification became final and executory after the May 10, 2010 Elections.
Considering further that Ramon Talaga’s disqualification became final after the May 10, 2010
Elections, it was only during that time that office of the Mayor of Lucena City became vacant.
Since there is no question that Ramon’s disqualification to serve as City Mayor is permanent in
character, the incumbent Vice-Mayor should serve as Mayor pursuant to Section 44 of the Local
Government Code, which provides:
Section 44. Permanent Vacancies in the Office of the Governor, Vice-Governor, Mayor, and
Vice-Mayor. – If a permanent vacancy occurs in the office of the governor or mayor, the vice-
governor or vice-mayor concerned shall become the governor or mayor.
xxxx
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a
higher vacant office, voluntarily resigns, or is otherwise permanently incapacitated to discharge
the functions of his office.
x x x x (Emphasis supplied)
In view of the foregoing, I concur with the ponencia of Justice Lucas P. Bersamin that it is the
incumbent Vice-Mayor, Roderick Alcatala, who should be the Mayor of Lucena City.

Associate Justice
Footnotes
1
BATAS PAMBANSA BILANG 881, Section 77, Candidates in case of death,
disqualification or withdrawal of another. – If after the last day for the filing of
certificates of candidacy, an official candidates of a registered or accredited political
party dies, withdraws or is disqualified for any cause, only a person belonging to, and
certified by, the same political party may file a certificate of candidacy to replace the
candidate who died, withdrew or was disqualified. x x x
2
Part V, Title B, Rule 23 of the COMELEC RULES OF PROCEDURE.
3
Rollo, p. 132.
BRION, J.:
I concur with the ponencia in dismissing Mayor Barbara Ruby Talaga's petition against the
assailed Commission on Elections (COMELEC) en banc Resolution of May 20, 2011 in SPC No.
10-024; but I dissent with the ponencia's reasoning that the cause of invalidity or Ruby's
substitution of Ramon Talaga is the cancellation of Ramon's certificate of candidacy (CoC). I
dissent, too, with the ponencia's ruling that it is the Vice-Mayor who should be seated as Mayor,
applying the rules of succession under the Local Government Code (LGC).
Ramon and Philip Castillo were the original candidates for the mayoralty post in Lucena City for
the May l 0, 20 I 0 elections.1 Soon after they filed their CoCs, Castillo filed a petition to ''deny
due course to or to cancel the certificate of candidacy" of Ralllon o11 the ground that he had
served for three consecutive terms as mayor.2
Ramon defended himself by citing the then COMELEC ruling that his preventive suspension in
the course of his three terms as mayor prevented him from serving continuously.3 On December
23, 2009, however, the Supreme Court issued a contrary ruling in Aldovino, Jr. v. Commission
on Elections4 and held that preventive suspension is only a temporary incapacity that does not
interrupt a local official’s term of office for purposes of the three-term limit rule.
In light of this development, Ramon manifested before the COMELEC that he made no
misrepresentation in his CoC because of the prevailing COMELEC ruling; he acknowledged that
he was disqualified to run for mayor, and he prayed for a ruling declaring him disqu`alified.5
The requested ruling came on April 19, 2010, through the grant of Castillo’s petition by the
COMELEC First Division.6 Ramon responded to the ruling by filing a motion for
reconsideration,7 but he withdrew his motion on May 4, 2010 through an ex parte manifestation
of withdrawal.8 Later, on the same day, Ruby – Ramon’s wife – filed her CoC, attaching thereto
the required Certificate of Nomination by Ramon’s party.9
The COMELEC en banc’s action on Ramon’s manifestation of withdrawal did not come until the
next day – May 5, 2010. The en banc, in its Order, considered the April 19, 2010 Resolution of
the COMELEC First Division final and executory.10
On election day, May 10, 2010, Ramon’s name remained in the printed ballot, but votes for him
were counted in Ruby’s favor as votes for the substitute candidate.11
Castillo sought to suspend the proclamation of Ramon or Ruby who had garnered 44,099 votes
as against Castillo’s 39,615.12 On May 13, 2010, the COMELEC gave due course to Ruby’s CoC
as substitute candidate.13 The Board of Canvassers, on the other hand, did not suspend the
proclamation as Castillo had requested, and instead proclaimed Ruby as winner and elected
Mayor of Lucena City on that same day.14
Castillo sought to annul Ruby’s proclamation through another petition15 while the elected Vice
Mayor, Roderick Alcala, moved to intervene in Castillo’s petition.16 On January 11, 2011, the
COMELEC Second Division dismissed Castillo’s petition and denied Alcala’s motion. The
COMELEC Second Division reasoned out that the substitution became final and executory when
Castillo failed to act after receiving a copy of the COMELEC resolution giving due course to
Ruby’s substitution.17
Both parties went to the COMELEC en banc for the reconsideration of the COMELEC Second
Division’s ruling. The COMELEC en banc reversed the January 11, 2011 ruling of the
COMELEC Second Division on due process consideration and on the ground that the filing of
Ruby’s CoC was not a proper substitution for being premature and for being filed out of
time.18 Against this COMELEC en banc ruling, both parties went to the Court.
The issues raised by the parties before the Court can be condensed as follows:
a. Whether Ruby validly substituted for Ramon as candidate for mayor of Lucena City;
b. In the negative, whether the cause of the invalidity of the substitution is Ramon’s
disqualification or the cancellation of his CoC;
c. Who between Castillo and Alcala should assume the position of mayor of Lucena
City?
The ponencia dismissed Ruby’s petition (G.R. No. 196804) and Castillo’s petition (G.R. No.
197015) for lack of merit; and upheld the COMELEC en banc’s resolution of May 20, 2011 in
SPC No. 10-024.
I agree with the ponencia’s conclusion that Ruby never validly substituted Ramon, and,
therefore, she never became a candidate who can be validly voted for in the May 2010 elections.
The ponencia considers Ruby’s substitution as invalid because Ramon’s CoC contains an
"incurable defect consisting in his false declaration of his eligibility to run"19 for a fourth
consecutive term. The ponencia adds that despite the absence of an express finding of material
misrepresentation by the COMELEC, the fact that it granted Castillo’s petition "without express
qualifications"20 manifested that the COMELEC had cancelled Ramon’s CoC. In short, the
ponencia considers the CoC of a three-term candidate as invalid, warranting its cancellation.
I dissent with the reasoning of the ponencia. I base my position of dissent on the following
grounds – the same grounds which would later support my position that it is Castillo who should
be seated as Mayor -
a. the violation of the three-term limit rule is a unique but proper ground for
disqualification and not for the cancellation of a CoC under Section 78 of the Omnibus
Election Code (OEC);
b. the petition filed by Castillo against Ramon was based on the three-term limit rule and,
hence, was a petition for disqualification, but no effective disqualification ever took place
since Ramon never qualified to serve for a fourth term; and
c. since Ruby did not validly substitute Ramon and Ramon opted to exit out of the
election race (although through an erroneous mode of asking for a ruling disqualifying
him), neither of the two can be considered candidates and the votes cast in their favor
should be considered stray; thus, Castillo should be proclaimed as Mayor of Lucena City.
Hidden behind but not erased by this simplistic recital of the issues, rulings and dissent is the
legal reality that these cases pose issues way beyond the question of substitution that appears on
the surface. They require a look into the nature of a CoC; distinctions between eligibility, or lack
of it, and disqualification; the effects of cancellation and disqualification; the applicable
remedies; and the unique nature and the effect of the constitutional three-term limit for local
elective officials.
The CoC and the Qualifications for its Filing.
A basic rule and one that cannot be repeated often enough is that the CoC is the document that
creates the status of a candidate. In Sinaca v. Mula,21 the Court described the nature of a CoC as
follows –
A certificate of candidacy is in the nature of a formal manifestation to the whole world of the
candidate's political creed or lack of political creed. It is a statement of a person seeking to run
for a public office certifying that he announces his candidacy for the office mentioned and that
he is eligible for the office, the name of the political party to which he belongs, if he belongs to
any, and his post-office address for all election purposes being as well stated.
Both the 1973 and 1987 Constitutions left to Congress the task of providing the qualifications of
local elective officials. Congress undertook this task by enacting Batas Pambasa Bilang (B.P.
Blg.) 337 (LGC), the OEC and, later, Republic Act (R.A.) No. 7160 (Local Government Code of
1991 or LGC 1991).22
Under Section 79 of the OEC, a political aspirant legally becomes a "candidate" only upon the
due filing of his sworn CoC.23 In fact, Section 73 of the OEC makes the filing of the CoC a
condition sine qua non for a person to "be eligible for any elective public office"24 – i.e., to be
validly voted for in the elections. Section 76 of the OEC makes it a "ministerial duty" for a
COMELEC official "to receive and acknowledge receipt of the certificate of candidacy"25 filed.
COMELEC Resolution No. 8678 provides what a CoC must contain or state:26
Section 2. Contents of certificate of candidacy. - The certificate of candidacy shall be under oath
and shall state that the person filing it is announcing his candidacy for the office and
constituency stated therein; that he is eligible for said office, his age, sex, civil status, place and
date of birth, his citizenship, whether natural-born or naturalized; the registered political party to
which he belongs; if married, the full name of the spouse; his legal residence, giving the exact
address, the precinct number, barangay, city or municipality and province where he is registered
voter; his post office address for election purposes; his profession or occupation or employment;
that he is not a permanent resident or an immigrant to a foreign country; that he will support and
defend the Constitution of the Republic of the Philippines and will maintain true faith and
allegiance thereto; that he will obey the laws, legal orders, decrees, resolution, rules and
regulations promulgated and issued by the duly-constituted authorities; that he assumes the
foregoing obligations voluntarily without mental reservation or purpose of evasion; and that the
facts stated in the certificate are true and correct to the best of his own knowledge. [italics
supplied]
From the point of view of the common citizen who wants to run for a local elective office, the
above recital contains all the requirements that he must satisfy; it contains the basic and essential
requirements applicable to all citizens to qualify for candidacy for a local elective office. These
are their formal terms of entry to local politics. A citizen must not only possess all these
requirements; he must positively represent in his CoC application that he possesses them. Any
falsity on these requirements constitutes a material misrepresentation that can lead to the
cancellation of the CoC. On this point, Section 78 of the OEC provides:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before the election. [italics, emphases and underscores
ours]
A necessarily related provision is Section 39 of LGC 1991 which states:
Sec. 39. Qualifications. – (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city, or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he
intends to be elected; a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or dialect.
xxxx
(c) Candidates for the position of Mayor or vice-mayor of independent component cities,
component cities, or municipalities must be at least twenty-one (21) years of age on election day.
[italics ours]
Notably, Section 74 of the OEC does not require any negative qualification except only as
expressly required therein. A specific negative requirement refers to the representation that the
would-be candidate is not a permanent resident nor an immigrant in another country. This
requirement, however, is in fact simply part of the positive requirement of residency in the
locality for which the CoC is filed and, in this sense, it is not strictly a negative requirement.
Neither does Section 74 require any statement that the would-be candidate does not possess any
ground for disqualification specifically enumerated by law, as disqualification is a matter that the
OEC and LGC 1991 separately deal with, as discussed below. Notably, Section 74 does not
require a would-be candidate to state that he has not served for three consecutive terms in the
same elective position immediately prior to the present elections.
With the accomplishment of the CoC and its filing, a political aspirant officially acquires the
status of a candidate and, at the very least, the prospect of holding public office; he, too, formally
opens himself up to the complex political environment and processes. The Court cannot be more
emphatic in holding "that the importance of a valid certificate of candidacy rests at the very core
of the electoral process."27
Pertinent laws28 provide the specific periods when a CoC may be filed; when a petition for its
cancellation may be brought; and the effect of its filing. These measures, among others, are in
line with the State policy or objective of ensuring "equal access to opportunities for public
service,"29 bearing in mind that the limitations on the privilege to seek public office are within
the plenary power of Congress to provide.30
The Concept of Disqualification and
its Effects.
To disqualify, in its simplest sense, is (1) to deprive a person of a power, right or privilege; or (2)
to make him or her ineligible for further competition because of violation of the rules.31 It is in
these senses that the term is understood in our election laws.
Thus, anyone who may qualify or may have qualified under the general rules of eligibility
applicable to all citizens may be deprived of the right to be a candidate or may lose the right to
be a candidate (if he has filed his CoC) because of a trait or characteristic that applies to him or
an act that can be imputed to him as an individual, separately from the general qualifications that
must exist for a citizen to run for a local public office. Notably, the breach of the three-term limit
is a trait or condition that can possibly apply only to those who have previously served for three
consecutive terms in the same position sought immediately prior to the present elections.
In a disqualification situation, the grounds are the individual traits or conditions of, or the
individual acts of disqualification committed by, a candidate as provided under Sections 68 and
12 of the OEC and Section 40 of LGC 1991, and which generally have nothing to do with the
eligibility requirements for the filing of a CoC.32
Sections 68 and 12 of the OEC (together with Section 40 of LGC 1991, outlined below) cover
the following as traits, characteristics or acts of disqualification: (i) corrupting voters or election
officials; (ii) committing acts of terrorism to enhance candidacy; (iii) overspending; (iv)
soliciting, receiving or making prohibited contributions; (v) campaigning outside the campaign
period; (vi) removal, destruction or defacement of lawful election propaganda; (vii) committing
prohibited forms of election propaganda; (viii) violating rules and regulations on election
propaganda through mass media; (ix) coercion of subordinates; (x) threats, intimidation,
terrorism, use of fraudulent device or other forms of coercion; (xi) unlawful electioneering; (xii)
release, disbursement or expenditure of public funds; (xiii) solicitation of votes or undertaking
any propaganda on the day of the election; (xiv) declaration as an insane; and (xv) committing
subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of
more than eighteen months or for a crime involving moral turpitude.
Section 40 of LGC 1991, on the other hand, essentially repeats those already in the OEC under
the following disqualifications:
a. Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence;
b. Those removed from office as a result of an administrative case;
c. Those convicted by final judgment for violating the oath of allegiance to the Republic;
d. Those with dual citizenship;
e. Fugitives from justice in criminal or non-political cases here or abroad;

f. Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and
g. The insane or feeble-minded.
Together, these provisions embody the disqualifications that, by statute, can be imputed against a
candidate or a local elected official to deny him of the chance to run for office or of the chance to
serve if he has been elected.
A unique feature of "disqualification" is that under Section 68 of the OEC, it refers only to a
"candidate," not to one who is not yet a candidate. Thus, the grounds for disqualification do not
apply to a would-be candidate who is still at the point of filing his CoC. This is the reason why
no representation is required in the CoC that the would-be candidate does not possess any ground
for disqualification. The time to hold a person accountable for the grounds for disqualification is
after attaining the status of a candidate, with the filing of the CoC.
To sum up and reiterate the essential differences between the eligibility requirements and
disqualifications, the former are the requirements that apply to, and must be complied by, all
citizens who wish to run for local elective office; these must be positively asserted in the CoC.
The latter refer to individual traits, conditions or acts that serve as grounds against one who has
qualified as a candidate to lose this status or privilege; essentially, they have nothing to do with a
candidate’s CoC.
When the law allows the cancellation of a candidate’s CoC, the law considers the cancellation
from the point of view of the requirements that every citizen who wishes to run for office must
commonly satisfy. Since the elements of "eligibility" are common, the vice of ineligibility
attaches to and affects both the candidate and his CoC. In contrast, when the law allows the
disqualification of a candidate, the law looks only at the disqualifying trait or condition specific
to the individual; if the "eligibility" requirements have been satisfied, the disqualification applies
only to the person of the candidate, leaving the CoC valid. A previous conviction of subversion
is the best example as it applies not to the citizenry at large, but only to the convicted
individuals; a convict may have a valid CoC upon satisfying the eligibility requirements under
Section 74 of the OEC, but shall nevertheless be disqualified.
Distinctions among (i) denying due course to or cancellation of a CoC, (ii) disqualification, and
(iii) quo warranto
The nature of the eligibility requirements for a local elective office and the disqualifications that
may apply to candidates necessarily create distinctions on the remedies available, on the effects
of lack of eligibility and on the application of disqualification. The remedies available are
essentially: the cancellation of a CoC, disqualification from candidacy or from holding office,
and quo warranto, which are distinct remedies with varying applicability and effects. For ease of
presentation and understanding, their availability, grounds and effects are topically discussed
below.
As to the grounds:
In the denial of due course to or cancellation of a CoC, the ground is essentially lack of
eligibility under the pertinent constitutional and statutory provisions on qualifications or
eligibility for public office;33 the governing provisions are Sections 78 and 69 of the OEC.34
In a disqualification case, as mentioned above, the grounds are traits, characteristics or acts of
disqualification,35 individually applicable to a candidate, as provided under Sections 68 and 12 of
the OEC; Section 40 of LGC 1991; and, as discussed below, Section 8, Article X of the
Constitution. As previously discussed, the grounds for disqualification are different from, and
have nothing to do with, a candidate’s CoC although they may result in disqualification from
candidacy whose immediate effect upon finality before the elections is the same as a
cancellation. If they are cited in a petition filed before the elections, they remain as
disqualification grounds and carry effects that are distinctly peculiar to disqualification.
In a quo warranto petition, the grounds to oust an elected official from his office are ineligibility
and disloyalty to the Republic of the Philippines. This is provided under Section 253 of the OEC
and governed by the Rules of Court as to the procedures. While quo warranto and cancellation
share the same ineligibility grounds, they differ as to the time these grounds are cited. A
cancellation case is brought before the elections, while a quo warranto is filed after and may still
be filed even if a CoC cancellation case was not filed before elections, viz.:
The only difference between the two proceedings is that, under section 78, the qualifications for
elective office are misrepresented in the certificate of candidacy and the proceedings must be
initiated before the elections, whereas a petition for quo warranto under section 253 may be
brought on the basis of two grounds - (1) ineligibility or (2) disloyalty to the Republic of the
Philippines, and must be initiated within ten days after the proclamation of the election results.
Under section 253, a candidate is ineligible if he is disqualified to be elected to office, and he is
disqualified if he lacks any of the qualifications for elective office.36
Note that the question of what would constitute acts of disqualification – under Sections 68 and
12 of the OEC and Section 40 of LGC 1991 – is best resolved by directly referring to the
provisions involved. On the other hand, what constitutes a violation of the three-term limit rule
under the Constitution has been clarified in our case law.37 The approach is not as straight
forward in a petition to deny due course to or cancel a CoC and also to a quo warranto petition,
which similarly covers the ineligibility of a candidate/elected official. In Salcedo II v.
COMELEC,38 we ruled that –
In order to justify the cancellation of the certificate of candidacy under Section 78, it is essential
that the false representation mentioned therein pertain to a material matter for the sanction
imposed by this provision would affect the substantive rights of a candidate — the right to run
for the elective post for which he filed the certificate of candidacy. Although the law does not
specify what would be considered as a "material representation," the Court has interpreted this
phrase in a line of decisions applying Section 78 of the Code.
xxxx
Therefore, it may be concluded that the material misrepresentation contemplated by Section 78
of the Code refer to qualifications for elective office. This conclusion is strengthened by the fact
that the consequences imposed upon a candidate guilty of having made a false representation in
his certificate of candidacy are grave — to prevent the candidate from running or, if elected,
from serving, or to prosecute him for violation of the election laws. It could not have been the
intention of the law to deprive a person of such a basic and substantive political right to be voted
for a public office upon just any innocuous mistake. [emphases ours, citation omitted]
Thus, in addition to the failure to satisfy or comply with the eligibility requirements, a material
misrepresentation must be present in a cancellation of CoC situation. The law apparently does
not allow material divergence from the listed requirements to qualify for candidacy and enforces
its edict by requiring positive representation of compliance under oath. Significantly, where
disqualification is involved, the mere existence of a ground appears sufficient and a material
representation assumes no relevance.
As to the period for filing:
The period to file a petition to deny due course to or cancel a CoC depends on the provision of
law invoked. If the petition is filed under Section 78 of the OEC, the petition must be filed within
twenty-five (25) days from the filing of the CoC.39 However, if the petition is brought under
Section 69 of the same law, the petition must be filed within five (5) days from the last day of
filing the CoC.40
On the other hand, the period to file a disqualification case is at any time before the proclamation
of a winning candidate, as provided in COMELEC Resolution No. 8696.41 The three-term limit
disqualification, because of its unique characteristics, does not strictly follow this time limitation
and is discussed at length below. At the very least, it should follow the temporal limitations of a
quo warranto petition which must be filed within ten (10) days from proclamation.42 The
constitutional nature of the violation, however, argues against the application of this time
requirement; the rationale for the rule and the role of the Constitution in the country’s legal order
dictate that a petition should be allowed while a consecutive fourth-termer is in office.
As to the effects of a successful suit:
A candidate whose CoC was denied due course or cancelled is not considered a candidate at all.
Note that the law fixes the period within which a CoC may be filed.43 After this period, generally
no other person may join the election contest. A notable exception to this general rule is the rule
on substitution: when an official candidate of a registered political party dies, withdraws or is
disqualified for any cause after the last day for filing a CoC, the law allows the substitution of
the dead, withdrawing or disqualified candidate, provided that he or she had a valid and
subsisting CoC at the time of death, withdrawal or substitution. This proviso is necessary since
the entry of a new candidate after the regular period for filing the CoC is exceptional.
Unavoidably, a "candidate" whose CoC has been cancelled or denied due course cannot be
substituted for lack of a CoC, to all intents and purposes.44 Similarly, a successful quo warranto
suit results in the ouster of an already elected official from office; substitution, for obvious
reasons, can no longer apply.
On the other hand, a candidate who was simply disqualified is merely prohibited from continuing
as a candidate or from assuming or continuing to assume the functions of the office;45
substitution can thus take place before election under the terms of Section 77 of the OEC.46
However, a three-term candidate with a valid and subsisting CoC cannot be substituted if the
basis of the substitution is his disqualification on account of his three-term limitation.
Disqualification that is based on a breach of the three-term limit rule cannot be invoked as this
disqualification can only take place after election where the three-term official emerged as
winner. As in a quo warranto, any substitution is too late at this point.
As to the effects of a successful suit on the right of the second placer in the elections:
In any of these three remedies, the doctrine of rejection of the second placer applies for the
simple reason that –
To simplistically assume that the second placer would have received the other votes would be to
substitute our judgment for the mind of the voter. The second placer is just that, a second placer.
He lost the elections. He was repudiated by either a majority or plurality of voters. He could not
be considered the first among qualified candidates because in a field which excludes the
disqualified candidate, the conditions would have substantially changed. We are not prepared to
extrapolate the results under such circumstances.47
With the disqualification of the winning candidate and the application of the doctrine of rejection
of the second placer, the rules on succession under the law accordingly apply.
As an exceptional situation, however, the candidate with the second highest number of votes
(second placer) may be validly proclaimed as the winner in the elections should the winning
candidate be disqualified by final judgment before the elections, as clearly provided in Section 6
of R.A. No. 6646.48 The same effect obtains when the electorate is fully aware, in fact and in law
and within the realm of notoriety, of the disqualification, yet they still voted for the disqualified
candidate. In this situation, the electorate that cast the plurality of votes in favor of the
notoriously disqualified candidate is simply deemed to have waived their right to vote.49
In a CoC cancellation proceeding, the law is silent on the legal effect of a judgment cancelling
the CoC and does not also provide any temporal distinction. Given, however, the formal
initiatory role a CoC plays and the standing it gives to a political aspirant, the cancellation of the
CoC based on a finding of its invalidity effectively results in a vote for an inexistent "candidate"
or for one who is deemed not to be in the ballot. Although legally a misnomer, the "second
placer" should be proclaimed the winner as the candidate with the highest number of votes for
the contested position. This same consequence should result if the cancellation case becomes
final after elections, as the cancellation signifies non-candidacy from the very start, i.e., from
before the elections.
Violation of the three-term limit rule

a. The Three-Term Limit Rule.
The three-term limit rule is a creation of Section 8, Article X of the Constitution. This provision
fixes the maximum limit an elective local official can consecutively serve in office, and at the
same time gives the command, in no uncertain terms, that no such official shall serve for more
than three consecutive terms. Thus, a three-term local official is barred from serving a fourth and
subsequent consecutive terms.
This bar, as a constitutional provision, must necessarily be read into and interpreted as a
component part of the OEC under the legal reality that neither this Code nor the LGC provides
for the three-term limit rule’s operational details; it is not referred to as a ground for the
cancellation of a CoC nor for the disqualification of a candidate, much less are its effects
provided for. Thus, the need to fully consider, reconcile and harmonize the terms and effects of
this rule on elections in general and, in particular, on the circumstances of the present case.
b. Is the Rule an Eligibility Requirement or a Disqualification?
In practical terms, the question of whether the three-term limit rule is a matter of "eligibility" that
must be considered in the filing of a CoC translates to the need to state in a would-be candidate’s
CoC application that he is eligible for candidacy because he has not served for three consecutive
terms immediately before filing his application.
The wording of Section 8, Article X of the Constitution, however, does not justify this
requirement as Section 8 simply sets a limit on the number of consecutive terms an official can
serve. It does not refer to elections, much less does it bar a three-termer’s candidacy. As
previously discussed, Section 74 of the OEC does not expressly require a candidate to assert the
non-possession of any disqualifying trait or condition, much less of a candidate’s observance of
the three-term limit rule. In fact, the assertion of a would-be candidate’s eligibility, as required
by the
OEC, could not have contemplated making a three-term candidate ineligible for candidacy since
that disqualifying trait began to exist only later under the 1987 Constitution.
What Section 8, Article X of the Constitution indisputably mandates is solely a bar against
serving for a fourth consecutive term, not a bar against candidacy. Of course, between the filing
of a CoC (that gives an applicant the status of a candidate) and assumption to office as an
election winner is a wide expanse of election activities whose various stages our election laws
treat in various different ways. Thus, if candidacy will be aborted from the very start (i.e., at the
initial CoC-filing stage), what effectively takes place – granting that the third-termer possesses
all the eligibility elements required by law – is a shortcut that is undertaken on the theory that the
candidate cannot serve in any way if he wins a fourth term.
I submit that while simple and efficient, essential legal considerations should dissuade the Court
from using this approach. To make this shortcut is to incorporate into the law, by judicial fiat, a
requirement that is not expressly there. In other words, such shortcut may go beyond allowable
interpretation that the Court can undertake, and cross over into prohibited judicial legislation.
Not to so hold, on the other hand, does not violate the three-term limit rule even in spirit, since
its clear and undisputed mandate is to disallow serving for a fourth consecutive term; this
objective is achieved when the local official does not win and can always be attained by the
direct application of the law if he does win.
Another reason, and an equally weighty one, is that a shortcut would run counter to the concept
of commonality that characterizes the eligibility requirements; it would allow the introduction of
an element that does not apply to all citizens as an entry qualification. Viewed from the prism of
the general distinctions between eligibility and disqualification discussed above, the three-term
limit is unavoidably a restriction that applies only to local officials who have served for three
consecutive terms, not to all would-be candidates at large; it applies only to specific individuals
who may have otherwise been eligible were it not for the three-term limit rule and is thus a
defect that attaches only to the candidate and not to his CoC. In this sense, it cannot but be a
disqualification and at that, a very specific one.
That the prohibited fourth consecutive term can only take place after a three-term local official
wins his fourth term signifies too that the prohibition (and the resulting disqualification) only
takes place after elections. This circumstance, to my mind, supports the view that the three-term
limit rule does not at all involve itself with the matter of candidacy; it only regulates service
beyond the limits the Constitution has set. Indeed, it is a big extrapolative leap for a prohibition
that applies after election, to hark back and affect the initial election process for the filing of
CoCs.
Thus, on the whole, I submit that the legally sound view is not to bar a three-termer’s candidacy
for a fourth term if the three-term limit rule is the only reason for the bar. In these lights, the
three-term limit rule – as a bar against a fourth consecutive term – is effectively a
disqualification against such service rather than an eligibility requirement.50
c. Filing of Petition and Effects.
As a disqualification that can only be triggered after the elections, it is not one that can be
implemented or given effect before such time. The reason is obvious; before that time, the
gateway to the 4th consecutive term has not been opened because the four-term re-electionist has
not won. This reality brings into sharp focus the timing of the filing of a petition for
disqualification for breach of the three-term limit rule. Should a petition under the three-term
limit rule be allowed only after the four-term official has won on the theory that it is at that point
that the Constitution demands a bar?
The timing of the filing of the petition for disqualification is a matter of procedure that primarily
rests with the COMELEC. Of course, a petition for disqualification cannot be filed against one
who is not yet a candidate as only candidates (and winners) can be disqualified. Hence, the filing
should be done after the filing of the CoC. On the backend limitation of its filing, I believe that
the petition does not need to be hobbled by the terms of COMELEC Resolution No. 869651
because of the special nature and characteristics of the three-term limit rule – i.e., the
constitutional breach involved; the fact that it can be effective only after a candidate has won the
election; and the lack of specific provision of the election laws covering it.
To be sure, a constitutional breach cannot be allowed to remain unattended because of the

procedures laid down by administrative bodies. While Salcedo considers the remedy of quo
warranto as almost the same as the remedy of cancellation on the question of eligibility, the fact
that the remedies can be availed of only at particular periods of the election process signifies
more than temporal distinction.
From the point of view of eligibility, one who merely seeks to hold public office through a valid
candidacy cannot wholly be treated in the same manner as one who has won and is at the point of
assuming or serving the office to which he has been elected; the requirements to be eligible as a
candidate are defined by the election laws and by the local government code, but beyond these
are constitutional restrictions on eligibility to serve. The three-term limit rule serves as the best
example of this fine distinction; a local official who is allowed to be a candidate under our
statutes but who is effectively in his fourth term should be considered ineligible to serve if the
Court were to give life to the constitutional provision, couched in a strong prohibitory language,
that "no such official shall serve for more than three consecutive terms."
A possible legal stumbling block in allowing the filing of the petition before the election is the
lack of a cause of action or prematurity at that point.1âwphi1 If disqualification is triggered only
after a three-termer has won, then it may be argued with some strength that a petition, filed
against a respondent three-term local official before he has won a fourth time, has not violated
any law and does not give the petitioner the right to file a petition for lack of cause of action or
prematurity.52
I take the view, however, that the petition does not need to be immediately acted upon and can
merely be docketed as a cautionary petition reserved for future action if and when the three-term
local official wins a fourth consecutive term. If the parties proceed to litigate without raising the
prematurity or lack of cause of action as objection, a ruling can be deferred until after the cause
of action accrues; if a ruling is entered, then any decreed disqualification cannot be given effect
and implemented until a violation of the three-term limit rule occurs.
As a last point on the matter of substitution, a candidate with a valid and subsisting CoC can only
be validly substituted on the basis of a withdrawal before the elections, or by reason of death.
Disqualification that is based on a breach of the three-term limit rule cannot be invoked as this
disqualification can only take place after election. As in a quo warranto situation, any
substitution is too late at this point.
I shall consider the case on the basis of these positions.

Castillo’s Petition is Properly a
Petition for Disqualification against
Ramon for Possessing some Grounds
for Disqualification
On the basis of my views on the effect of the three-term limit rule, I disagree with the ponencia’s
conclusion that Castillo’s petition is one for the cancellation or denial of due course of Ramon’s
CoC. I likewise so conclude after examining Castillo’s petition, its allegations and the grounds it
invoked.
As a rule, the nature of the action is determined by the allegations in the complaint or petition.
The cause of action is not what the title or designation of the petition states; the acts defined or
described in the body of the petition control. The designation or caption and even the prayer,
while they may assist and contribute their persuasive effect, cannot also be determinative of the
nature or cause of action for they are not even indispensable parts of the petition.53
In this sense, any question on the nature of Castillo’s petition against Ramon cannot ignore the
pertinent allegations of the petition, and they state:
4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and 2007 local
elections based on the records of the Commission on Elections of Lucena City and had fully
served the aforesaid three (3) terms without any voluntary and involuntary interruption.
xxxx
7. Respondent, knowing well that he was elected for and had fully served three (3) consecutive
terms as a city mayor of Lucena, he still filed his Certificate of Candidacy for City Mayor of
Lucena for this coming 10 May 2010 national and local elections;
xxxx
8. Under the Constitution and existing Election laws, New Local Government Code of the
Philippines, and jurisprudence the respondent is no longer entitled and is already disqualified to
be a city mayor for the fourth consecutive term. [emphasis supplied]
These allegations, on their face, did not raise any of the specified grounds for cancellation or
denial of due course of a CoC under Sections 69 and 78 of the OEC. Specifically, Castillo’s
petition did not allege that Ramon was a nuisance candidate or that he had committed a
misrepresentation on a material fact in his CoC; the petition failed to allege any deliberate
attempt, through material misrepresentation, to mislead, misinform or deceive the electorate of
Lucena City as to Ramon’s qualifications for the position of Mayor. More importantly, and as
previously discussed, the non-possession of any disqualifying ground, much less of a potential
breach of the three-term limit rule, is not among the matters of qualification or eligibility that a
candidate is required to assert in his CoC.
Castillo’s allegations simply articulate the fact that Ramon had served for three consecutive
terms and the legal conclusion that the three-term limit rule under the Constitution and LGC
1991 disqualifies him from running for a fourth consecutive term. Under these allegations,
Castillo’s petition cannot come within the purview of Section 78 of the OEC; Ramon’s status as
a three-term candidate is a ground to disqualify him (as precautionary measure before elections)
for possessing a ground for disqualification under the Constitution and the LGC, specifically, for
running for the same office after having served for three continuous terms.
From the given facts and from the standards of strict legality based on my discussions above, I
conclude that the COMELEC was substantially correct in treating the case as one for
disqualification – that is, without cancelling his CoC - in its April 19, 2010 Resolution and in
ruling for disqualification, subject to my reservation about prematurity and the existence of a ripe
cause of action. This reservation gathers strength in my mind as I consider that most of the
developments in the case took place before the May 10, 2010 elections under the standards of
Section 8, Article X of the Constitution. Brought to its logical end, this consideration leads me to
conclude that while the COMELEC might have declared Ramon’s disqualification to be final, its
declaration was ineffectual as no disqualification actually ever took effect. None could have
taken place as the case it ruled upon was not ripe for a finding of disqualification; Ramon,
although a three-term local official, had not won a fourth consecutive term and, in fact, could not
have won because he gave way to his wife in a manner not amounting to a withdrawal.
Ruby’s Substitution of Ramon is

Invalid not because Ramon’s CoC
was cancelled but because of its non-
conformity with the Conditions
Required by Section 77 of the OEC
As a rule, a CoC must be filed only within the timelines specified by law. This temporal
limitation is a mandatory requirement to qualify as a candidate in a national or local election.54 It
is only when a candidate with a valid and subsisting CoC is disqualified, dies or withdraws his or
her CoC before the elections that the remedy of substitution under Section 77 of the OEC is
allowed. Section 77 states:
Section 77. Candidates in case of death, disqualification or withdrawal of another. - If after the
last day for the filing of certificates of candidacy, an official candidate of a registered or
accredited political party dies, withdraws or is disqualified for any cause, only a person
belonging to, and certified by, the same political party may file a certificate of candidacy to
replace the candidate who died, withdrew or was disqualified. The substitute candidate
nominated by the political party concerned may file his certificate of candidacy for the office
affected in accordance with the preceding sections not later than mid-day of the day of the
election. If the death, withdrawal or disqualification should occur between the day before the
election and mid-day of election day, said certificate may be filed with any board of election
inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be
voted for by the entire electorate of the country, with the Commission. [italics supplied,
emphasis and underscoring ours]
In the present case, the grounds that would give rise to the substitution had to be present for
Ruby’s substitution to be valid. Specifically, she had to show that either Ramon had died, had
withdrawn his valid and subsisting CoC, or had been disqualified for any cause. All these are
best determined by considering the antecedents of the present case. To recall:
1. On April 19, 2010, the Comelec First Division disqualified Ramon in SPA No. 09-929
(DC). The Resolution did not contain any order to deny due course or to cancel Ramon’s
CoC;
2. On April 21, 2010, Ramon filed a Verified Motion for Reconsideration seeking a
reversal of the April 19, 2010 Resolution;
3. On May 4, 2010, at exactly 9:00 a.m., Ramon filed an Ex-Parte Manifestation of the
Pending Motion for Reconsideration dated May 3, 2010 praying that the COMELEC
issue an "Order to NOTE the instant Manifestation and DEEM the Resolution
promulgated on April 19, 2010 as final and executory";
4. On the same day at 4:30, Ruby filed her CoC for Mayor of Lucena City in substitution
of her husband, Ramon;
5. In an Order dated May 5, 2010, the COMELEC en banc issued an Order in response to
Ramon’s Manifestation which stated: "(a) To NOTE this instant Manifestation; and (b)
To consider the April 19, 2010 Resolution of the Commission First Division final and
executory";
6. On the May 10, 2010 elections, Ramon garnered the highest number of votes with
44,099 votes, while Castillo garnered only 39, 615 votes;
7. Three days after the elections or on May 13, 2010, the COMELEC en banc issued
Resolution No. 8917 that gave due course to Ruby’s CoC. This Resolution was premised
on the Memorandum of the Law Department dated May 8, 2010 which erroneously stated
that Ruby filed her CoC on May 5 not May
4, 2010; and
8. On the basis of Resolution No. 8917, the City Board of Canvassers proclaimed Ruby
as the duly elected mayor of Lucena City.55
All these, of course, will have to be viewed from the prism of the three-term limit rule.
Substitution refers to an exceptional situation in an election scenario where the law leans
backwards to allow a registered party to put in place a replacement candidate when the death,
withdrawal or disqualification of its original candidate occurs. The question that arises under the
bare provisions of Section 77 of the OEC is how the COMELEC should handle the law’s given
conditions and appreciate the validity of a substitution. The approaches to be made may vary on
a case-to-case basis depending on the attendant facts, but a failsafe method in an election
situation is to give premium consideration not to the candidates or their parties, but to the
electorate’s process of choice and the integrity of the elections. In other words, in a legal or
factual equipoise situation, the conclusion must lean towards the integrity of the electoral
process.
Death as basis for substitution obviously does not need to be considered, thus leaving withdrawal
and disqualification as grounds for the validity of Ruby’s substitution.
On the matter of withdrawal, two significant developments could possibly serve as indicators of
withdrawal and should be examined for their legal effects.
The first development relates to the aftermath of the Court’s ruling in Aldovino regarding the
interruption of service for purposes of the three-term limit rule. Although the Aldovino ruling
still had to lapse to finality, Ramon almost immediately manifested before the COMELEC First
Division his recognition that he was disqualified and asked for a ruling. The requested ruling, of
course, was on the case that Castillo had filed. This ruling did not come until April 19, 2010
when the COMELEC First Division granted Castillo’s petition, to which Ramon responded with
a verified motion for reconsideration.
A significant aspect (although a negative one) of this development is that Ramon never indicated
his clear intention to withdraw his CoC. Despite the Aldovino ruling, he only manifested his
recognition that he was disqualified and had asked for a ruling on Castillo’s petition. To be sure,
he could have made a unilateral withdrawal with or without any intervention from the
COMELEC First Division. The reality, however, was that he did not; he did not withdraw either
from his disqualification case nor his CoC, pursuant to Section 73 of the OEC; he opted and
continued to act within the confines of the pending case.
A question that may possibly be asked is whether Ramon’s Manifestation recognizing his
disqualification can be considered a withdrawal. The short answer, in my view, is that it cannot
be so considered. Withdrawal and disqualification are separate grounds for substitution under
Section 77 of the OEC and one should not be confused with the other. Recognition of
disqualification, too, without more, cannot be considered a withdrawal. Disqualification results
from compulsion of law while withdrawal is largely an act that springs from the candidate’s own
volition. Ramon’s obvious submission to the COMELEC First Division, by asking for a ruling,
cannot in any sense be considered a withdrawal.
The second occasion was in early May 2010 when he withdrew, through a Manifestation, his
motion for reconsideration of the First Division’s ruling finding him disqualified for violation of
the three-term limit rule. To recall, he made his ex parte manifestation of withdrawal in the
morning of May 4, 2010, while his wife filed her CoC in substitution in the afternoon of the
same day, on the apparent theory that his acceptance of the First Division disqualification ruling
qualified her for substitution under Section 77 of the OEC.
I cannot view these moves as indicative of withdrawal because the parties’ main basis, as shown
by their moves, was to take advantage of a final ruling decreeing disqualification as basis for
Ruby’s substitution. Plainly, no withdrawal of the CoC was ever made and no withdrawal was
also ever intended as they focused purely on the effects of Ramon’s disqualification. This intent
is evident from their frantic efforts to secure a final ruling by the COMELEC en banc on
Ramon’s disqualification.
But neither can I recognize that there was an effective disqualification that could have been the
basis for a Section 77 substitution. As repeatedly discussed above, the constitutional prohibition
and the disqualification can only set in after election, when a three-term local official has won
for himself a fourth term. Quite obviously, Ramon – without realizing the exact implications of
the three–term limit rule – opted for a disqualification as his mode of exit from the political
scene. This is an unfortunate choice as he could not have been disqualified (or strictly, his
disqualification could not have taken effect) until after he had won as Mayor in the May 2010
elections – too late in time if the intention was to secure a substitution for Ruby. Additionally,
there was no way that Ramon could have won as he had opted out of the race, through his
acceptance of an ineffectual disqualification ruling, in favor of his wife, Ruby. I hark back, too,
to the reason I have given on why the constitutional three-term limit rule cannot affect, and does
not look back to, the candidate’s CoC which should remain valid if all the elements of eligibility
are otherwise satisfied.
Whatever twists and turns the case underwent through the series of moves that Ramon and his
wife made after the First Division’s April 19, 2010 ruling cannot erase the legal reality that, at
these various points, no disqualification had ripened and became effective. To repeat, the cause
for disqualification is the election of the disqualified candidate to a fourth term – a development
that never took place. Without a disqualified candidate that Ruby was replacing, no substitution
pursuant to Section 77 of the OEC could have taken place.56 This reality removes the last ground
that would have given Ruby the valid opportunity to be her husband’s substitute. To note an
obvious point, the CoC that Ruby filed a week before the May 10, 2010 elections could not have
served her at all as her filing was way past the deadline that the COMELEC set.
To return to the immediate issue at hand and as previously discussed, a substitution under
Section 73 of the OEC speaks of an exceptional, not a regular, situation in an election and should
be strictly interpreted according to its terms. In the clearest and simplest terms, without a dead,
withdrawing or disqualified candidate of a registered party, there can be no occasion for
substitution. This requirement is both temporal and substantive. In the context of this case and in
the absence of a valid substitution of Ramon by Ruby, votes for Ramon appearing in the ballots
on election day could not have been counted in Ruby’s favor.57
With a fatally flawed substitution,

Ruby was not a candidate.
In view of the invalidity of Ruby’s substitution, her candidacy was fatally flawed and could not
have been given effect. Her CoC, standing by itself, was filed late and cannot be given
recognition. Without a valid CoC, either by substitution or by independent filing, she could not
have been voted for, for the position of Mayor of Lucena City. Thus, the election took place with
only one valid candidate standing – Castillo – who should now be proclaimed as the duly elected
Mayor.
The ponencia justifies the Vice-Mayor’s succession to the office of the Mayor in this wise:
The only time that a second placer is allowed to take the place of a disqualified winning
candidate is when two requisites concur, namely: (a) the candidate who obtained the highest
number of votes is disqualified; and (b) the electorate was fully aware in fact and in law of that
candidate’s disqualification as to bring such awareness within the realm of notoriety but the
electorate still cast the plurality of votes in favor of the ineligible candidate. xxx But the
exception did not apply in favor of Castillo simply because the second element was absent. xxx
On the other hand, Barbara Ruby was properly disqualified by the COMELEC En Banc from
assuming the position of Mayor of Lucena City. She was not a substitute candidate because
Ramon’s disqualification was confirmed only after the elections.
The ponencia’s reasoning would have been sound had Ruby been a candidate, who for one
reason or another simply cannot assume office. The harsh legal reality however is that she never
was and never became a candidate - a status which must be present before the doctrine of
rejection of second placer may apply - either through the ordinary method of filing within the
period allowed by law or through the extraordinary method of substitution. Ruby’s status is
comparable to (or even worse than) a candidate whose CoC was cancelled after the elections. As
previously discussed, the cancellation of a CoC signifies non-candidacy from the very start, i.e.,
before the elections, which entitles the "second placer" to assume office. The same result should
obtain in this case.
From the perspective of Vice Mayor Alcala’s intervention, Ruby did not validly assume the
mayoralty post and could not have done so as she was never a candidate with a valid CoC. To
recall my earlier discussions, it is only the CoC that gives a person the status of being a
candidate. No person who is not a candidate can win. Thus, Ruby despite being seated – never
won. In the absence of any permanent vacancy occurring in the Office of the Mayor of Lucena
City, no occasion arises for the application of the law on succession under Section 44 of the
Local Government Code58 and established jurisprudence.59 Thus, I dissent as the petition of
Vice-Mayor Roderick Alcala should have failed.
ARTURO D. BRION
Associate Justice
Footnotes
1
Rollo (G.R. No. 196804), p. 42.
2
Id. at 88-92.
3
Id. at 229.
4
5
Rollo (G.R. No. 196804), pp. 98-101.
6
Id. at 102-105.
7
Id. at 106-124.
8
Id. at 126-129.
9
Id. at 130-131.
10
Id. at 133-134.
11
Id. at 136.
12
Id. at 135-138.
13
Id. at 142-144.
14
Id. at 145.
15
Id. at 185-214.
16
Id. at 305-318.
17
Id. at 361-375.
18
Id. at 42-52.
19
Decision, p. 17.
20
Id. at 20.
21
373 Phil. 896, 908 (1999).
22
Prior to these laws, the applicable laws were the Revised Administrative Code of 1917,
R.A. No. 2264 (An Act Amending the Laws Governing Local Governments by
Increasing Their Autonomy and Reorganizing Provincial Governments); and B.P. Blg. 52
(An Act Governing the Election of Local Government Officials).
23
See, however, Section 15 of R.A. No. 8436, as amended. Penera v. Commission on
Elections, G.R. No. 181613, November 25, 2009, 605 SCRA 574, 581-586, citing Lanot
v. COMELEC, G.R. No. 164858, November 16, 2006, 507 SCRA 114.
24
Section 73 of OEC reads:
Section 73. Certificate of candidacy. - No person shall be eligible for any elective public
office unless he files a sworn certificate of candidacy within the period fixed herein.
A person who has filed a certificate of candidacy may, prior to the election, withdraw the
same by submitting to the office concerned a written declaration under oath.
No person shall be eligible for more than one office to be filled in the same election, and
if he files his certificate of candidacy for more than one office, he shall not be eligible for
any of them.
However, before the expiration of the period for the filing of certificates of candidacy, the
person who has filed more than one certificate of candidacy may declare under oath the
office for which he desires to be eligible and cancel the certificate of candidacy for the
other office or offices.
The filing or withdrawal of a certificate of candidacy shall not affect whatever civil,
criminal or administrative liabilities which a candidate may have incurred. [italics
supplied]
Section 13 of R.A. No. 9369, however, adds that "[a]ny person who files his certificate of
candidacy within this period shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy: Provided, That, unlawful
acts or omissions applicable to a candidate shall effect only upon that start of the
aforesaid campaign period[.]" (italics supplied)
25
See Cipriano v. Commission on Elections, 479 Phil. 677, 689 (2004).
26
The statutory basis is Section 74 of OEC which provides:
Section 74. Contents of certificate of candidacy. - The certificate of candidacy shall state
that the person filing it is announcing his candidacy for the office stated therein and that
he is eligible for said office; if for Member of the Batasang Pambansa, the province,
including its component cities, highly urbanized city or district or sector which he seeks
to represent; the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and will maintain true
faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or
immigrant to a foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the facts stated in
the certificate of candidacy are true to the best of his knowledge.
Unless a candidate has officially changed his name through a court approved proceeding,
a certificate shall use in a certificate of candidacy the name by which he has been
baptized, or if has not been baptized in any church or religion, the name registered in the
office of the local civil registrar or any other name allowed under the provisions of
existing law or, in the case of a Muslim, his Hadji name after performing the prescribed
religious pilgrimage: Provided, That when there are two or more candidates for an office
with the same name and surname, each candidate, upon being made aware of such fact,
shall state his paternal and maternal surname, except the incumbent who may continue to
use the name and surname stated in his certificate of candidacy when he was elected. He
may also include one nickname or stage name by which he is generally or popularly
known in the locality.
The person filing a certificate of candidacy shall also affix his latest photograph, passport
size; a statement in duplicate containing his bio-data and program of government not
exceeding one hundred words, if he so desires.
27
Miranda v. Abaya, 370 Phil. 642, 658 (1999). See also Bautista v. Commission on
Elections, 359 Phil. 1 (1998).
28
Section 13 of R.A. No. 9369, COMELEC Resolution No. 8678 and Section 78 of OEC.
29
1987 Constitution, Article II, Section 26.
30
See Pamatong v. Commission on Elections, G.R. No. 161872, April 13, 2004, 427
SCRA 96, 100-103.
31
Merriam-Webster’s 11th Collegiate Dictionary, p. 655.
32
If at all, only two grounds for disqualification under the Local Government Code may
as well be considered for the cancellation of a CoC, viz.: those with dual citizenship and
permanent residence in a foreign country, or those who have acquired the right to reside
abroad and continue to avail of the same right after January 1, 1992. It may be argued
that these two disqualifying grounds likewise go into the eligibility requirement of a
candidate, as stated under oath by a candidate in his CoC.
33
Fermin v. Commission on Elections, G.R. Nos. 179695 and 182369, December 18,
2008, 574 SCRA 782, 792-794.
34
See Section 7 of R.A. No. 6646.
35
Sections 68 and 12 of OEC cover these acts: (i) corrupting voters or election officials;
(ii) committing acts of terrorism to enhance candidacy; (iii) over spending; (iv) soliciting,
receiving or making prohibited contributions; (v) campaigning outside the campaign
period; (vi) removal, destruction or defacement of lawful election propaganda; (vii)
committing prohibited forms of election propaganda; (viii) violating rules and regulations
on election propaganda through mass media; (ix) coercion of subordinates; (x) threats,
intimidation, terrorism, use of fraudulent device or other forms of coercion; (xi) unlawful
electioneering; (xii) release, disbursement or expenditure of public funds; (xiii)
solicitation of votes or undertaking any propaganda on the day of the election; (xiv)
declaration as an insane; and (xv) committing subversion, insurrection, rebellion or any
offense for which he has been sentenced to a penalty of more than eighteen months or for
a crime involving moral turpitude.
36
Salcedo II v. COMELEC, 371 Phil. 377, 387 (1999), citing Aznar v. Commission on
Elections, 185 SCRA 703 (1990).
37
Lonzanida v. Commission on Elections, 311 SCRA 602 [1999]; Borja v. Commission
on Elections 295 SCRA 157 (1998); Socrates v. Commission on Elections, G.R. No.
154512, November 12, 2002; Latasa v. Commission on Elections, G.R. No. 154829,
December 10, 2003, 417 SCRA 601; Montebon v. Commission on Elections, G.R. No.
180444, April 9, 2008, 551 SCRA 50; Aldovino v. Commission on Elections, G.R. No.
184836 December 23, 2009.
38
Supra note 36, at 386-389.
39
Loong v. Commission on Elections, G.R. No. 93986, December 22, 1992, 216 SCRA
760, 765-766.
40
Section 5(a) of R.A. No. 6646.
41
Section 4(B) of COMELEC Resolution No. 8696 reads:
SEC. 4. Procedure in filing petitions. - For purposes of the preceding sections, the
following procedure shall be observed:
xxxx
B. PETITION TO DISOUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF

THE OMNIBUS ELECTION CODE AND PETITION TO DISOUALIFY FOR LACK
OF OUALIFICATIONS OR POSSESSING SOME GROUNDS FOR
DISQUALIFICATION
1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the
verified petition to disqualify a candidate for lack of qualifications or possessing some
grounds for disqualification may be filed on any day after the last day for filing of
certificates of candidacy but not later than the date of proclamation.
42
Section 253 of OEC.
43
Section 15 of R.A. No. 9369.
44
Miranda v. Abaya, supra note 27, at 658-660.
45
See: Section 72, OEC; Section 6, R.A. No. 6646.
46
Section 77 of OEC expressly allows substitution of a candidate who is "disqualified for
any cause."
47
Aquino v. Commission on Elections, G.R. No. 120265, September 18, 1995, 248
SCRA 400, 424.
48
Cayat v. Commission on Elections, G.R. Nos. 163776 and 165736, April 24, 2007, 522
SCRA 23, 43-47; Section 6 of R.A. No. 6646.
49
Grego v. Commission on Elections, G.R. No. 125955, June 19, 1997, 274 SCRA 481,
501.
50
Separate from these considerations is the possibility that the candidacy of a third-
termer may be considered a nuisance candidate under Section 69 of the Omnibus Election
Code. Nuisance candidacy, by itself, is a special situation that has merited its own
independent provision that calls for the denial or cancellation of the CoC if the bases
required by law are proven; thus, it shares the same remedy of cancellation for material
misrepresentation on the eligibility requirements. The possibility of being a nuisance
candidate is not discussed as it is not in issue in the case.
51
Supra note 41.
52
See comments at footnote 49 on the possibility of using the nuisance candidate
provision under Section 69 of the OEC.
53
See Sumulong v. Court of Appeals, G.R. No. 108817, May 10, 1994, 232 SCRA 372,
385-386.
54
Section 73 of the OEC states:
Section 73. Certificate of Candidacy – No person shall be eligible for any elective public
office unless he files a sworn certificate of candidacy within the period fixed…. [italics
supplied]
55
Rollo (G.R. No. 196804), pp. 56-59.
56
See the analogous ruling of Miranda v. Abaya, 370 Phil. 642 (1999) on the principles
of valid substitution.
57
See the related case of Cayat v. COMELEC, G.R. No. 163776, April 24, 2007, 523
SCRA 23.
58
Section 44. Permanent Vacancies in the Oj}ices of the Governor, Vice-Governor,
Mayor and Vice-Mayor. - (a) If a permanent vacancy occurs in the office of the governor
or mayor, the vice-governor or vice-mayor shall become the governor or mayor.
xxxx
For purposes of this Chapter, a permanent vacancy arises when an elective local official
tills a higher vacant office, refuses to assume office, fails to quality, dies, is removed
from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge
the functions of his office.
59
See Gonzales V. Comelec (G.R. No. 192856, March 8, 2011, 644 SCRA 761, 800)
where the Court held that "the ineligibility of a candidate receiving majority votes does
not entitle the eligible candidate receiving the next highest number of votes to be declared
elected. A minority or defeated candidate cannot be deemed elected to the office. The
votes intended for the disqualified candidate should not be considered null and void, as it
would amount to disenfranchising the electorate in whom sovereignty resides. The
second place is just that, a second placer - he lost in the elections and was repudiated by
either the majority or plurality of voters."
MENDOZA, J.:
The subject consolidated petitions for certiorari seek to annul and set aside the En Banc
Resolution of the Commission on Elections (Comelec) in SPC No. 10-024, dated May 20, 2011,
which, among others, ordered the respondent Vice-Mayor to succeed as Mayor of Lucena City,
pursuant to Section 44 of the Local Government Code.
From the records, it appears that:
1] On December 1, 2009, Ramon Y. Talaga (Ramon) and Philip M. Castillo (Castillo)

filed their respective Certificates of Candidacy (CoC) before the Commission on
Elections (Comelec.).
2] On December 5, 20U9, Castillo tiled the initiatory pleading, a petition, docketed as

SPA No. 09-029 (DC) and entitled, "In the Matter of the Petition To Deny Due Course or
to Cancel Certificate of Candidacy of Ramon Y. Talaga, Jr. as Mayor For Having
Already Served Three (3) Consecutive Terms as a City Mayor of Lucena," praying as
follows:
WHEREFORE, premises considered, it is respectfully prayed that the Certificate

of Candidacy filed by the respondent he denied due course to or cancel the same
and that he be declared as a disqualified candidate under the existing Election
Laws and by the provisions of the New Local Government Code." [Emphasis
supplied]
3] On December 30, 2009, Ramon filed a Manifestation with Motion to Resolve SPA No.
09-029 (DC) wherein he insisted that there was no misrepresentation on his part
constituting a ground for a denial of due course to his CoC or cancellation thereof, but in
view of the ruling in Aldovino,1 he acknowledged that he was indeed not eligible and
disqualified to run as Mayor of Lucena City, praying that
WHEREFORE, it is most respectfully prayed that the instant petition be
SUBMITTED for decision and that he be declared as DISQUALIFIED to run for
the position of Mayor of Lucena City in view of the new ruling laid down by the
Supreme Court. [Emphasis supplied]
4] On April 19, 2010, the Comelec First Division promulgated its resolution disqualifying
Ramon from running as Mayor of Lucena City in the May 10, 2010 local elections, the
dispositive portion of which reads:
WHEREFORE, premises considered, the instant Petition is hereby GRANTED.

Accordingly, Ramon S. Talaga, Jr. is hereby DISQUALIFIED to run for Mayor of
Lucena City for the 10 May 2010 National and Local Elections. [Emphases
supplied]
5] On April 21, 2010, Ramon filed a Verified Motion for Reconsideration in SPA
No. 09-029.
6] On May 4, 2010, at 9:00 o’clock in the morning, Ramon filed an Ex Parte

Manifestation of Withdrawal of the Pending Motion for Reconsideration.
7] On the same day, May 4, 2010, at 4:30 o’clock in the afternoon, the wife of Ramon,
Barbara Ruby C. Talaga (Barbara Ruby), filed a Certificate of Candidacy for Mayor of
Lucena City, attaching thereto the Certificate of Nomination and Acceptance (CONA)
issued by the Lakas-Kampi-CMD, the party that had nominated Ramon.
8] On May 5, 2010, the Comelec En Banc, in SPC No. 10-024, issued an Order declaring
the April 19, 2010 Resolution disqualifying Ramon as having become final and
executory, the decretal portion of which reads:
... the Commission hereby orders as follows:
1] To NOTE the instant Manifestation; and
2] To consider the April 19, 2010 Resolution of the Commission First Division
final and executory.
SO ORDERED.
9] On May 10, 2010, the National and Local Elections were successfully conducted. The
name of Ramon remained printed on the ballots but the votes cast in his favor were
counted in favor of Barbara Ruby as his substitute candidate.
10] On May 11, 2010, Castillo filed before the Board of Canvassers of Lucena City a
Petition to Suspend Proclamation praying for the suspension of the proclamation of
Ramon or Barbara Ruby as the winning candidate.
11] On May 12, 2010, at around 5:17 o’clock in the afternoon, per City/Municipal
Certificate of Canvass, Barbara Ruby was credited with 44,099 votes while Castillo
garnered 39,615 votes.
12] On May 13, 2010, the Comelec, in Resolution No. 8917, gave due course to the CoC
of Barbara Ruby as substitute candidate.
13] On the same day, May 13, 2010, the Board of Canvassers of Lucena City did not act
on Castillo’s Petition to Suspend Proclamation and proclaimed Barbara Ruby as the
winning candidate and elected Mayor of Lucena City.
14] Aggrieved, on May 20, 2010, Castillo filed his Petition (For Annulment of
Proclamation of Barbara Ruby C. Talaga as the Winning Candidate for Mayor of Lucena
City, Quezon) with the Comelec, which was docketed as SPC No. 10-024, arguing 1] that
Barbara Ruby could not substitute Ramon because his CoC had been cancelled and
denied due course; and 2] that Barbara Ruby could not be considered a candidate because
the Comelec En Banc had approved her substitution three days after the elections. Hence,
the votes cast for Ramon should be considered stray.
15] On June 18, 2010, Barbara Ruby filed her Comment on the Petition for Annulment of
Proclamation contending that the substitution was valid on the ground that the Comelec
En Banc did not deny due course to or cancel Ramon’s CoC, despite a declaration of
disqualification as there was no finding of misrepresentation.
16] On July 26, 2010, Roderick Alcala (Alcala), the elected Vice Mayor of Lucena City
filed a Motion for Leave to Admit Attached Petition in Intervention and a Petition in
Intervention, asserting that he should assume the position of Mayor because Barbara
Ruby’s substitution was invalid and Castillo lost in the elections.
17] On January 11, 2011, the Comelec Second Division dismissed the petition of Castillo
and the motion to intervene of Alcala. It reasoned out, among others, that Resolution No.
8917 (allowing the substitution) became final and executory when Castillo failed to act
after receiving a copy thereof.
18] Not in conformity, both Castillo and Alcala filed their respective motions for
reconsideration of the January 11, 2011 Resolution of the Comelec Second Division for
being contrary to law and jurisprudence.
Castillo argued 1] that the determination of the candidacy of a person could not be made after the
elections and then given retroactive effect; and 2] that the CoC of Ramon was in reality cancelled
and denied due course which consequently barred him from being substituted as a candidate.
Accordingly, he prayed that the votes cast in favor of both Ramon and Barbara Ruby be
considered stray and that he be proclaimed winner, being the qualified candidate with the highest
number of votes.
Alcala, in advocacy of his position, argued that 1] Resolution 8917 was based on erroneous set of
facts; and 2] there was no valid reason for the substitution as there was no withdrawal,
disqualification or death of another candidate.
Barbara Ruby, in her defense, countered that the ruling of the Comelec Second Division was in
accord with law and jurisprudence and that doubts as to the validity of the substitution should be
resolved in her favor as she received the mandate of the people of Lucena City.
19] On May 20, 2011, acting on the motions for reconsideration, the Comelec En Banc reversed
the January 11, 2011 Resolution of the Comelec Second Division reasoning out that 1]
Resolution 8917 was issued without any adversarial proceedings as the interested parties were
not given the opportunity to be heard; 2] Resolution 8917 was based on erroneous set of facts
because Barbara Ruby filed her Certificate of Candidacy on May 4, 2010 at 4:30 o’clock in the
afternoon, before the Comelec acted on Ramon’s withdrawal of his motion for reconsideration
on May 5, 2010, and so premature; and 3 Barbara Ruby’s Certificate of Candidacy was filed out
of time because she was just another candidate, not a substitute.
It also ruled that Barbara Ruby being disqualified, the law on succession under Section 44 of the
Local Government Code should apply.
Accordingly, the Comelec En Banc decreed:
1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the Second
Division;
2. GRANTING the petition-in-intervention of Roderick Alcala;

issued therefor;
of the Local Government Code;
6. DIRECTING the Clerk of Court of the Commission to furnish copies of this

Resolution to the Office of the President of the Philippines, the Department of Interior
and Local Government, the Department of Finance and the Secretary of the Sangguniang
Panglungsod of Lucena City.
Let the Department of Interior and Local
Government and the Regional Election Director
of Region IV of COMELEC implement this
resolution.
SO ORDERED.
Hence, these consolidated petitions of Castillo and Barbara Ruby.
In their respective petitions, both Barbara Ruby and Castillo pray, among others, that she or he
be declared as the winning candidate in the May 10, 2010 mayoralty election in Lucena City.
II – Nature of Petition under Section 78
As the records indicate, the controversy stemmed from the initiatory pleading filed by Castillo in
SPA No. 09-029 (DC) entitled, "In the Matter of the Petition To Deny Due Course or to Cancel
Certificate of Candidacy of Ramon Y. Talaga, Jr. as Mayor For Having Already Served Three
(3)
Consecutive Terms as a City Mayor of Lucena," a petition filed under Section 78 of the the
Omnibus Election Code (Batas Pambansa Blg. 881) which reads:
Section 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before the election.
A certificate of candidacy is a formal requirement for eligibility to public office.2 Section 73 of

the Omnibus Election Code provides that no person shall be eligible for any elective public
office unless he files a sworn certificate of candicacy within the period fixed therein. Section 74
thereof provides that the CoC of the person filing it shall state, among others, that he is eligible
for the office he seeks to run, and that the facts stated therein are true to the best of his
knowledge. In the case of Sinaca v. Mula,3 the Court had an occasion to elaborate on the nature
of a CoC in this wise:
A certificate of candidacy is in the nature of a formal manifestation to the whole world of the
candidate’s political creed or lack of political creed. It is a statement of a person seeking to run
for a public office certifying that he announces his candidacy for the office mentioned and that
he is eligible for the office, the name of the political party to which he belongs, if he belongs to
any, and his post-office address for all election purposes being as well stated.
Thus, when Ramon filed his CoC before the COMELEC, he pronounced before the electorate his
intention to run for the mayoralty post and declared that he was "eligible" for the said office.
A petition filed under Section 78 of the Omnibus Election Code is one of two remedies by which
the candidacy of a person can be questioned. The other is a petition under Section 68.4 In Mitra
v. Comelec,5 the nature of a petition under Section 78 was further explained as follows:
Section 74, in relation to Section 78, of the Omnibus Election Code (OEC) governs the
cancellation of, and grant or denial of due course to, COCs. The combined application of these
sections requires that the candidate’s stated facts in the COC be true, under pain of the COC’s
denial or cancellation if any false representation of a material fact is made. To quote these
provisions:
SEC. 74. Contents of certificate of candidacy. — The certificate of candidacy shall state that the
certificate of candidacy are true to the best of his knowledge.
xxxx
SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition
and hearing not later than fifteen days before the election.
The false representation that these provisions mention must necessarily pertain to a material fact.
The critical material facts are those that refer to a candidate’s qualifications for elective office,
such as his or her citizenship and residence. The candidate’s status as a registered voter in the
political unit where he or she is a candidate similarly falls under this classification as it is a
requirement that, by law (the Local Government Code), must be reflected in the COC. The
reason for this is obvious: the candidate, if he or she wins, will work for and represent the
political unit where he or she ran as a candidate.
be candidate’s qualifications for public office. Thus, the misrepresentation that Section 78
election laws. [Emphases supplied]
A- A Petition to Deny Due Course or

to Cancel a CoC under Section 78
is different from a Disqualification
Case and a Quo Warranto Case
In Fermin v. Comelec,6 it was stressed that "a ‘Section 78’ petition ought not to be interchanged
or confused with a ‘Section 68’ petition. They are different remedies, based on different grounds,
and resulting in different eventualities." In the said case, it was written:
To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12 or
68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or
cancel a CoC can only be grounded on a statement of a material representation in the said
certificate that is false. The petitions also have different effects. While a person who is
disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose
certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all.
In Fermin, a petition to deny due course or to cancel a certificate of candidacy was also
distinguished from a petition for quo warranto as follows:
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based
on the lack of qualifications but on a finding that the candidate made a material representation
that is false, which may relate to the qualifications required of the public office he/she is running
for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she
seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and
statutory provisions on qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is false, the COMELEC, following
the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has
already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253
of the OEC since they both deal with the eligibility or qualification of a candidate, with the
distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the wining candidate. [Emphases in the
original]
Also as can be gleaned from the foregoing, it was clearly stressed in Fermin that the denial of
due course to, or the cancellation of, the CoC is not based on the lack of qualifications but on a
finding that the candidate made a material representation that was false.
When it was stated in Fermin that the false material representation "may relate to the
qualifications required of the public office he/she is running for," it simply meant that it could
cover one’s qualifications. It was not, however, restricted to qualifications only. When word
"may" was used, it meant that it could relate to, or cover, any other material misrepresentation as
to eligibility. Certainly, when one speaks of eligibility, it is understood that a candidate must
have all the constitutional and statutory qualifications7 and none of the disqualifications.8
"Eligible x x relates to the capacity of holding as well as that of being elected to an office."9
"Ineligibility" has been defined as a "disqualification or legal incapacity to be elected to an office
or appointed to a particular position."10
B - A person whose certificate is cancelled

or denied due course under Section 78
cannot be treated as a candidate at all
A cancelled certificate of candidacy cannot give rise to a valid candidacy, and much less to valid
votes.11 Much in the same manner as a person who filed no certificate of candidacy at all and a
person who filed it out of time, a person whose certificate of candidacy is cancelled or denied
due course is no candidate at all.12 The Court has been consistent on this. In Fermin, in
comparing a petition under Section 78 with a petition under Section 68, it was written: "While a
person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the
person whose certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all." Thus, whether or not his CoC was cancelled before or after the election is
immaterial, his votes would still be considered stray as his certificate was void from the
beginning.
C - A candidate disqualified by final judgment

before an election cannot be voted for,
and votes cast for him shall not be counted.
Granting arguendo that the petition is considered as one for disqualification, still, he cannot be
voted for and the votes for him cannot be counted if he was disqualified by final judgment before
an election. In Section 6 of R.A No. 6646 or The Electoral Reforms Law of 1987, it is clearly
provided that a candidate disqualified by final judgment before an election cannot be voted for,
and votes cast for him shall not be counted. This provision of law was applied in the case of
Cayat v. Comelec,13 where it was written:
cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of
law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:
strong.
The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing
the first situation is categorical: a candidate disqualified by final judgment before an election
cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying
Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the
8,164 votes cast in Cayat’s favor are stray. Cayat was never a candidate in the 10 May 2004
elections. Palileng’s proclamation is proper because he was the sole and only candidate, second
to none.
D - A candidate whose CoC has been cancelled

or denied due course cannot be substituted.
Section 7714 of the Omnibus Election Code enumerates the instances wherein substitution may
be allowed: They are death, disqualification and withdrawal of another. A candidate whose CoC
has been cancelled or denied due course cannot be substituted. This was the clear ruling in
Miranda v. Abaya,15 where it was written:
It is at once evident that the importance of a valid certificate of candidacy rests at the very core
of the electoral process. It cannot be taken lightly, lest there be anarchy and chaos. Verily, this
explains why the law provides for grounds for the cancellation and denial of due course to
certificates of candidacy.
After having considered the importance of a certificate of candidacy, it can be readily understood
why in Bautista we ruled that a person with a cancelled certificate is no candidate at all.
Applying this principle to the case at bar and considering that Section 77 of the Code is clear and
unequivocal that only an official candidate of a registered or accredited party may be substituted,
there demonstrably cannot be any possible substitution of a person whose certificate of
candidacy has been cancelled and denied due course. [Emphases supplied]
III – An assiduous assessment of the

factual situation leads to the conclusion
that Petitioner Castillo should have been
proclaimed mayor-elect of Lucena City
I concur with the majority that Ramon, having served as mayor of Lucena City for three
consecutive terms, was ineligible to run again for the same position in the May 10, 2012 election
as his candidacy was proscribed by no less than the Constitution. Section 8, Article X of the
1987 Constitution provides:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
In line therewith, Section 43 of the Local Government Code provides:
Sec. 43. Term of Office.
x x x.
(b) No local elective official shall serve for more than three consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned
was elected.
In Lonzanida v. Commission on Elections,16 the Court held that the two conditions for the
application of the disqualification must concur: 1) that the official concerned has been elected for
three consecutive terms in the same local government post; and 2) that he has fully served three
consecutive terms. In Aldovino v. Comelec,17 the Court stressed that "preventive suspension, by
its nature, does not involve an effective interruption of a term and should therefore not be a
reason to avoid the three-term limitation."
Contending that Ramon was ineligible and must be disqualified to run again as Mayor, Castillo
filed before the Comelec a petition entitled, "In the Matter of the Petition To Deny Due Course
or to Cancel Certificate of Candidacy of Ramon Y. Talaga, Jr. as Mayor For Having Already
Served Three (3) Consecutive Terms as a City Mayor of Lucena," praying "that the Certificate of
Candidacy filed by the respondent be denied due course to or cancel the same and that he be
declared as a disqualified candidate under the existing Election Laws and by the provisions of
the New Local Government Code."
Evidently, the petition filed was pursuant to Section 78 of the Omnibus Election Code. On
December 30, 2009, Ramon filed a Manifestation with Motion to Resolve SPA No. 09-029 (DC)
wherein he acknowledged that he was indeed not eligible and disqualified to run as Mayor of
Lucena City. On April 19, 2010, the Comelec First Division promulgated its Resolution
"granting the petition of Castillo and disqualifying Ramon to run for Mayor of Lucena City for
the May 10, 2010 National and Local Elections."
Specious, if not ludicrous, is the argument that there was nothing in the resolution from which it
can be deduced that the Comelec First Division cancelled, or denied due course to, Ramon’s
CoC. Such argument strains or tasks one’s credulity too much. Common sense dictates that when
the Comelec First Division granted the petition of Castillo, it, in effect, granted his prayer which
reads:
WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy

filed by the respondent be denied due course to or cancel the same and that he be declared as a
disqualified candidate under the existing Election Laws and by the provisions of the New Local
Government Code." [Emphasis supplied]
Needless to state, the Comelec considered Ramon as having made material misrepresentation as
he was manifestly not eligible, having served as mayor of Lucena City for three consecutive
terms. It could not have been otherwise. A candidate who states in his CoC that he is "eligible,"
despite having served the constitutional limit of three consecutive terms, is clearly committing a
material misrepresentation, warranting not only a cancellation of his CoC but also a proscription
against substitution.
As held in Bautista,18 Miranda,19 Gador,20 and Fermin,21 a person whose certificate is cancelled
or denied due course under Section 78 is not treated as a candidate at all and his votes will be
considered as stray as his certificate was void from the beginning. Also in Cayat,22 assuming that
this is a disqualification case, the rule is that a candidate disqualified by final judgment before an
election cannot be voted for, and votes cast for him shall not be counted.
Accordingly, when his CoC was denied due course or cancelled, Ramon was never considered a
candidate at all from the beginning.
Indeed, on April 21, 2010, Ramon filed a Verified Motion for Reconsideration, but on May 4,
2010, at 9:00 o’clock in the morning, he filed an Ex Parte Manifestation of Withdrawal of the
Pending Motion for Reconsideration. His motion, in effect, rendered the April 19, 2010
Resolution of the Comelec First Division as final and executory pursuant to Section 13, Rule 18
of the 1993 COMELEC Rules of Procedure, which reads:
Sec. 13. Finality of Decisions or Resolutions. - (a) In ordinary actions, special proceedings,
provisional remedies and special reliefs; a decision or resolution of the Commission en banc
shall become final and executory after thirty (30) days from its promulgation.
(b) In Special Actions and Special Cases, a decision or resolution of the Commission en
banc shall become final and executory after five (5) days from its promulgation unless
(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a

Division shall become final and executory after the lapse of five (5) days in Special
actions and Special cases and after fifteen (15) days in all other actions or proceedings,
following its promulgation.
The reason is that a motion for reconsideration once withdrawn has the effect of cancelling such
motion as if it was never filed. In Rodriguez v. Aguilar,23 it was written:
Upon the withdrawal by respondent of his Motion for Reconsideration, it was as if no motion
had been filed. Hence, the Order of the trial court under question became final and executory 15
days from notice by the party concerned.
In the same manner that the withdrawal of an appeal has the effect of rendering the appealed
decision final and executory, the withdrawal of the Motion for Reconsideration in the present
case had the effect of rendering the dismissal Order final and executory. By then, there was no
more complaint that could be amended, even for the first time as a matter of right.
Although the April 19, 2010 Resolution became final and executory on April 24, 2010, it has no
effect on Ramon’s candidacy or his purported substitute because his certificate was void from the
beginning. The date of the finality of the denial of due course or cancellation of a CoC has no
controlling significance because, as consistently ruled in Bautista,24 Miranda,25 Gador,26 and
Fermin,27 "the person whose certificate is cancelled or denied due course under Section 78 is not
treated as a candidate at all."
No substitution in case of cancellation

or denial of due course of a CoC
As Ramon was never a candidate at all, his substitution by Barbara Ruby was legally ineffectual.
This was the clear ruling in the case of Miranda v. Abaya,28 where it was ruled that "considering
that Section 77 of the Code is clear and unequivocal that only an official candidate of a
registered or accredited party may be substituted, there demonstrably cannot be any possible
substitution of a person whose certificate of candidacy has been cancelled and denied due
course."
There being no valid substitution,

the candidate with the highest number
of votes should be proclaimed as the
duly elected mayor
As there was no valid substitution, Castillo, the candidate with the highest number of votes is
entitled to be, and should have been, proclaimed as the duly elected mayor. The reason is that he
is the winner, not the loser. He was the one who garnered the highest number of votes among the
recognized legal candidates who had valid CoCs. Castillo was not the second placer. He was the
first placer.
On this score, I have to digress from the line of reasoning of the majority and register my dissent.
The ruling in Cayat is applicable because, although the petition therein was for disqualification,
the CoC of Cayat was cancelled. At any rate, even granting that it is not exactly at all fours, the
undisputed fact is that Castillo’s petition is one under Section 78. That being the case, the
applicable rule is that enunciated in in Bautista,29 Miranda,30 Gador,31 and Fermin32 - "the person
whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate
at all." The votes cast for him and those for his purported substitute could only be considered as
stray and could not be counted.
The Second Placer Doctrine
The second placer doctrine applies only in case of a vacancy caused by a disqualification under
Section 12 and Section 68 of the OEC and Section 40 of the LGC or quo warranto petition under
Section 253. When a winning candidate is disqualified under Section 12 and Section 68 of the
OEC and Section 40 of the LGC or unseated under Section 253, a vacancy is created and
succession under Section 44 of the the Local Government Code33 becomes operable. Section 44
provides:
CHAPTER II
Vacancies and Succession
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and
Vice-Mayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice-
governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy
occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking
sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian
member, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be.
Subsequent vacancies in the said office shall be filled automatically by the other sanggunian
members according to their ranking as defined herein.
(b) If a permanent vacancy occurs in the office of the punong barangay, the highest
ranking sanggunian barangay member or, in case of his permanent inability, the second
highest ranking sanggunian member, shall become the punong barangay.
(c) A tie between or among the highest ranking sanggunian members shall be resolved by
the drawing of lots.
(d) The successors as defined herein shall serve only the unexpired terms of their
predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a
higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his
office.
For purposes of succession as provided in the Chapter, ranking in the sanggunian shall be
determined on the basis of the proportion of votes obtained by each winning candidate to the
total number of registered voters in each district in the immediately preceding local election.
As stated therein, one of the causes for a vacancy is when a winning candidate fails to qualify or
is disqualified. The vacancy is created when a first placer is disqualified after the elections. This
is very clear because before an election, there is no first placer to speak of.
As the CoC of Ramon was cancelled, he was not a candidate at all. As he was not a candidate, he
could not be considered a first placer. The first placer was the bona fide candidate who garnered
the highest number of votes among the legally recognized candidates – Castillo.
As Ramon was not a candidate, his purported substitute, Barbara Ruby, was not a bona fide
candidate. There is, therefore, no vacancy, the only situation which could start the ball rolling for
the operation of the rule of succession under Rule 44 of the Local Government Code.
Granting arguendo that Castillo was
the second placer, the doctrine would
still not apply
Granting arguendo that Castillo was a second placer, the rejection of the second placer doctrine,
first enunciated in Labo v. Comelec,34 would still not apply in this situation. In Labo and
similarly situated cases, it was ruled that "the subsequent disqualification of a candidate who
obtained the highest number of votes does not entitle the candidate who garnered the second
highest number of votes to be declared the winner." The Labo ruling, however, is not applicable
in the situation at bench for two reasons: First, Ramon was not a candidate as he was disqualified
by final judgment before the elections; and Second, the situation at bench constitutes a clear
exception to the rule as stated in Labo v. Comelec,35 Cayat v. Comelec36 and Grego v.
Comelec.37
On the first ground, in Cayat, it was ruled that Labo is applicable only when there is "no final
judgment of disqualification before the elections." Specifically, Cayat reads:
Labo, Jr. v. COMELEC, which enunciates the doctrine on the rejection of the second placer,
does not apply to the present case because in Labo there was no final judgment of
disqualification before the elections. The doctrine on the rejection of the second placer was
applied in Labo and a host of other cases because the judgment declaring the candidate’s
disqualification in Labo and the other cases had not become final before the elections. To repeat,
Labo and the other cases applying the doctrine on the rejection of the second placer have one
common essential condition — the disqualification of the candidate had not become final before
the elections. This essential condition does not exist in the present case. [Emphases supplied]
In this case, the cancellation of Ramon’s CoC because of his disqualification became final before
the May 10, 2010 National and Local Elections.
The only other instance that a second placer is allowed to be proclaimed instead of the first
placer is when the exception laid down in Labo v. Comelec, Cayat v. Comelec and Grego v.
Comelec is applicable. In Grego, it was held that "the exception is predicated on the concurrence
of two assumptions, namely: (1) the one who obtained the highest number of votes is
disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's
disqualification so as to bring such awareness within the realm of notoriety but would
nonetheless cast their votes in favor of the ineligible candidate."
In this case, the two assumptions have been satisfied: 1] the cancellation of Ramon’s CoC
became final before the May 10, 2010 National and Local Elections and 2] the electorate was
conscious of the circumstances surrounding Ramon’s candidacy and subsequent disqualification.
The fact that Ramon was a renowned political figure in Lucena City, owing to his three (3)
consecutive terms as mayor therein, cannot be denied. Verily, the people of Lucena City were
fully aware of the circumstances of his candidacy, but still voted for Ramon despite his notorious
ineligibility for the post.
The gratuitous presumption that the votes for Ramon were cast in the sincere belief that he was a
qualified candidate is negated by the electorate’s awareness that Ramon had long-served as
mayor of the city for almost a decade. This cannot be classified as an innocuous mistake because
the proscription was prescribed by the Constitution itself. Indeed, voting for a person widely
known as having reached the maximum term of office set by law was a risk which the people
complacently took. Unfortunately, they misapplied their franchise and squandered their votes
when they supported the purported substitute, Barbara Ruby. Thus, the said votes could only be
treated as stray, void, or meaningless.
In view of all the foregoing, I vote that the petition of Barbara Ruby be DENIED and the petition
of Castillo be GRANTED.
JOSE CATRAL MENDOZA

Associate Justice
Footnotes
1
Aldovino , Jr. v. Commission on Elections, G.R. No. 184836, December 23, 2009, 609
SCRA 235, where it was ruled that preventive suspension, being a mere temporary
incapacity, was not a valid ground for avoiding the three-term limit rule.
2
Bellosillo, Marquez and Mapili, Effective Litigation & Adjudication of Election
Contests, 2012 Ed., p. 47.
3
G.R. No. 135691, September 27, 1999, 315 SCRA 266, 276.
4
Gonzales v. Comelec, G.R. No. 192856, March 8, 2011, 644 SCRA 761.
5
G.R. No. 191938, July 2, 2010, 622 SCRA 744.
6
7
Section 39 and 6 of Article VI and Sections 2 and 3 of Article VII of the 1987
Constitution and Section 39 of the LGC.
8
Sections 12 and 68 of the OEC and Section 40 of the LGC.
9
Bouvier’s Law Dictionary, Vol. I, Eighth ed., p. 1002.
10
Black’s Law Dictionary, Fifth ed., p. 698; and Bouvier’s Law Dictionary, Vol. I,
Eighth ed., p. 1552.
11
Bautista v. Comelec, G.R. No. 133840, November 13, 1998, 298 SCRA 480.
12
Miranda v. Abaya, 370 Phil. 642 (1999). See also Gador v. Comelec, 184 Phil 395
(1980).
13
G.R. No. 163776, April 24, 2007, 522 SCRA 23.
14
Section 77. Candidates in case of death, disqualification or withdrawal of another. - If
after the last day for the filing of certificates of candidacy, an official candidate of a
registered or accredited political party dies, withdraws or is disqualified for any cause,
only a person belonging to, and certified by, the same political party may file a certificate
of candidacy to replace the candidate who died, withdrew or was disqualified. The
substitute candidate nominated by the political party concerned may file his certificate of
candidacy for the office affected in accordance with the preceding sections not later than
mid-day of the day of the election. If the death, withdrawal or disqualification should
occur between the day before the election and mid-day of election day, said certificate
may be filed with any board of election inspectors in the political subdivision where he is
a candidate, or, in the case of candidates to be voted for by the entire electorate of the
country, with the Commission.
15
370 Phil. 642 (1999).
16
370 Phil. 625 (1999).
17
18
Supra note 11.
19
Supra note 12.
20
Supra note 12.
21
Supra note 6.
22
G.R. No. 163776, April 24 2007, 522 SCRA 23.
23
G.R. No. 159482, 505 Phil. 468 (2005).
24
Supra note 11.
25
Supra note 12.
26
Supra note 12.
27
Supra note 6.
28
Supra note 9.
29
Supra note 11.
30
Supra note 12.
31
Supra note 12.
32
Supra note 6.
33
Republic Act No. 7160; An Act Providing for a Local Government Code of 1991.
34
257 Phil. 1 (1989).
35
Id.
36
G.R. No. 163776, April 24, 2007, 522 SCRA 23.
37
G.R. No. 125955, June 19, 1997, 274 SCRA 481, 501.
DISSENTING OPINION
ABAD, J.:
I must disagree with the majority opinion penned by Justice Lucas P. Bersamin.
The Facts and the Case
On December I, 2009 Ramon Talaga and Philip Castillo filed their respective certificates of
candidacy (COC) for the position of mayor of Lucena City in the scheduled May 10, 2010
elections.1 Four days later on December 5, 2009 Castillo filed a petition2 before the Commission
of Elections (COMELEC) for denial or cancellation of Ramon Talaga's COC, alleging that the
latter had already served three consecutive terms as mayor and was, consequently, disqualified to
run for another term.3
Ramon countered that the three-term limit rule did not apply to him since the Sandiganbayan
preventively suspended him from office during his second and third terms4 in connection with
Criminal Case 27738. In support of his contention, Ramon cited the COMELEC resolution in
Aldovino v. Asilo5 which held that the terms during which an elected official was preventively
suspended should not be counted for purposes of applying the three-term limit rule.
Parenthetically, the cited COMELEC resolution was still pending consideration by the Supreme
Court in G.R. 184836, entitled "Aldovino, Jr. v. Commission on Elections."6
Eventually, on December 23, 2009 the Supreme Court reversed and set aside the COMELEC
resolution in Aldovino that Ramon invoked.7 The Court held that preventive suspension does not
constitute interruption of a term or loss of office. Such suspension amounts to a mere temporary
incapacity of an elected official to perform the service demanded by his office. Thus, preventive
suspension is not a valid ground for avoiding the three-term limit rule.
In view of the Supreme Court decision in Aldovino, on December 30, 2009 Ramon filed with the
COMELEC a manifestation with motion to resolve,8 conceding the fact of his disqualification for
a fourth term. Acting on his motion, on April 19, 2010 the COMELEC First Division issued a
resolution, granting Castillo’s petition and disqualifying Ramon.9
Ramon filed a motion for reconsideration of the COMELEC First Division’s April 19, 2010
resolution10 but, before the COMELEC En Banc could act on his motion, he filed at 9:00 a.m. on
May 4, 2010 an ex parte manifestation withdrawing the motion.11 At 4:30 p.m. on the same date,
Barbara Ruby Talaga (Ruby) filed a COC for mayor of Lucena City in substitution of her
husband Ramon. She attached a Certificate of Nomination and Acceptance (CONA) from Lakas-
Kampi-CMD, the party that nominated Ramon.12
Meanwhile, acting on Ramon’s ex parte manifestation, the COMELEC En Banc issued an order
on May 5, 2010, declaring the Division’s April 19, 2010 resolution that disqualified him final
and executory.13 Three days later or on May 8, 2010, the COMELEC Law Department wrote a
memorandum to the COMELEC En Banc, recommending that Ruby’s COC be given due
course.14
In the meantime, the automated elections took place two days later on May 10, 2010. Inevitably,
although it was Ramon’s name that was on the pre-printed ballot, the votes cast for that name
were counted for Ruby, his substitute candidate. She got 44,099 votes as against Castillo’s
39,615 votes.
Castillo promptly filed a petition before the City Board of Canvassers (CBOC) asking for the
suspension of Ruby’s proclamation on the ground that the issue of her substitution of her
husband was still pending before the COMELEC.15 As it happened, acting on the COMELEC
Law Department’s memorandum, on May 13, 2010 the COMELEC En Banc issued Resolution
8917, giving due course to Ruby’s COC and CONA and directing her inclusion in the certified
list of candidates. In view of this, the CBOC proclaimed Ruby winner in the mayoralty race.16
On May 20, 2010 Castillo filed with the COMELEC’s Second Division a petition for annulment
of Ruby’s proclamation in SPC 10-024, alleging that she could not substitute Ramon, whose
COC had been cancelled and denied due course. Citing Miranda v. Abaya,17 Castillo pointed out
the denial or cancellation of Ramon’s COC made it impossible for Ruby to substitute him since,
to begin with, he did not have a valid candidacy. And Ruby could not be considered a candidate
since the COMELEC approved her substitution three days after the elections. Castillo concluded
that the votes for Ramon should be considered stray.18
In her comment on the petition before the COMELEC,19 Ruby insisted that she validly
substituted her husband since the COMELEC En Banc in fact approved through Resolution 8917
its Law Department’s finding that Ramon was disqualified. The En Banc had no occasion to
deny due course to or cancel Ramon’s COC. Notably, Castillo failed to appeal Resolution 8917.
Further, the COMELEC First Division’s April 19, 2010 resolution merely declared Ramon
disqualified from running for a fourth term. It made no finding that he committed
misrepresentation, the ground for denial or cancellation of his COC.
Ruby also insisted that the COMELEC did not have to approve her substitution of Ramon since
the law even allowed a substitute to file his COC before the Board of Election Inspectors (BEI) if
the cause for substitution occurs immediately prior to election day. Section 12 of Republic Act
(R.A.) 9006 is also explicit that, in case of valid substitution, the rule considering votes cast for a
substituted candidate as stray votes shall not apply if the substitute candidate has the same family
name as the one he replaces. Thus, votes cast for Ramon were properly counted in her favor.
On July 26, 2010 respondent Roderick A. Alcala (Alcala), the elected vice-mayor of Lucena
City, sought to intervene in the case. He claimed that, since Ruby’s substitution was invalid and
Castillo clearly lost the elections, he should assume the post of mayor under the rules of electoral
succession.20
In a resolution dated January 11, 2011,21 the COMELEC’s Second Division dismissed Castillo’s
petition and Alcala’s petition-in-intervention. It held, first, that COMELEC En Banc’s
Resolution 8917, which had become final and executory, already settled the issue of Ruby’s
substitution; second, that the Miranda v. Abaya22 ruling did not apply since Castillo’s petition
cited no material misrepresentation that could be ground for cancellation of Ramon’s COC; and,
third, the Omnibus Election Code does not require the COMELEC to first approve a substitution
before it can take effect.
Upon Castillo and Alcala’s motion for reconsideration, however, on May 20, 2011 the
COMELEC En Banc issued a resolution,23 reversing the Second Division’s ruling. The En Banc
held a) that Resolution 8917 could not attain finality since the COMELEC issued it merely as an
incident of its ministerial duty to receive COCs of substitute candidates; and b) that COMELEC
issued Resolution 8917 without hearing the interested parties on the issue of substitution.
Further, the COMELEC En Banc found that Resolution 8917 was based on the wrong facts.
Ruby filed her COC at 4:30 p.m. on May 4, 2010, not on May 5 as the resolution stated. The
COMELEC resolved to disqualify Ramon with finality only on May 5. Consequently, Ruby
could not have properly substituted Ramon; she simply became an additional candidate who filed
her COC out of time. Thus, said the En Banc, Vice-Mayor Alcala should succeed to the position
pursuant to Section 44 of the Local Government Code. Chairman Sixto S. Brillantes, Jr.
dissented from the majority.
Ruby and Castillo assailed the COMELEC En Banc’s resolution via these consolidated petitions
for certiorari and prohibition. On June 21, 2011 the Court issued a status quo ante order in G.R.
196804.24
Issues Presented
Was Ramon merely disqualified from running for mayor or was his COC in fact cancelled or
denied due course?
Did Ruby validly substitute Ramon as candidate for mayor of Lucena City?
Discussion
There are two remedies available to prevent a candidate from running in an election: a petition
for disqualification, and a petition to deny due course to or cancel a COC. The majority holds
that, in resolving the case before it, the COMELEC had in fact denied due course to and
cancelled
Ramon’s COC.
I disagree. Although Castillo denominated his petition as one for cancellation or denial of due
course to Ramon’s COC and sought the same relief, it did not raise any of the specified grounds
for such action under Sections 69 and 78 of the Omnibus Election Code that read:
Sec. 69. Nuisance candidates. – The Commission may motu proprio or upon verified petition of
an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown
that said certificate has been filed to put the election process in mockery or disrepute or to cause
confusion among the voters by the similarity of the names of the registered candidates or by
other circumstances or acts which clearly demonstrate that the candidate has no bona fide
intention to run for the office for which the certificate of candidacy has been filed and thus
prevent a faithful determination of the true will of the electorate.
xxxx
seeking to deny due course or to cancel a certificate of candidacy may be filed by the person
and hearing, not later than fifteen days before the election. (Emphasis supplied)
Section 69 refers to nuisance candidates. Section 78, on the other hand, treats of material
misrepresentation in the COC. Castillo’s petition made no claim that Ramon was a nuisance
candidate or that he made some material misrepresentation in his COC. All that the petition
raised against Ramon’s candidacy is the fact that he had already served three consecutive terms
as mayor.
Castillo of course points out that by filing a COC for mayor after he had already served three
consecutive terms, Ramon actually misrepresented the fact of his eligibility for that office,
knowing that it was not the case. But this argument is unavailing because at the time Ramon filed
his COC the COMELEC’s official stand, supported by this Court’s decision in Borja, Jr. v.
Commission on Elections,25 was that the terms during which an elected official was preventively
suspended should not be counted for purposes of applying the three-term limit. It was only on
December 23, 2009, nearly a month after Ramon filed his COC, that the Supreme Court reversed
in Aldovino, Jr. v. Commission on Elections the election body’s official stand.
Thus, it cannot be said that Ramon knowingly misrepresented his eligibility when he filed his
COC.
While Castillo denominated his petition as one to deny due course to or cancel Ramon’s COC,
and prayed for such remedies, the basic rule is that the nature of an action is governed by the
allegations in the petition, not by its caption or prayer. We cannot rely simply on the fact that the
COMELEC resolution granted the petition without making any qualifications. A closer reading
of the resolution will show that Ramon was merely being disqualified for having served three
consecutive terms. It made no mention of Ramon’s COC as having been cancelled or denied due
course, and indeed gave no grounds which would justify such a result. The ponencia cites
Miranda v. Abaya26 to justify its stand, but fails to note that in Miranda the Court found that
there was blatant misrepresentation, which is in clear contrast to this case.
On the issue of substitution, the law specifically provides that a candidate who has been
disqualified for any cause may be substituted by another. Section 77 of the Omnibus Election
Code (Batas Pambansa 881) states:
Sec. 77. Candidates in case of death, disqualification or withdrawal. – If after the last day for the
filing of certificates of candidacy, an official candidate of a registered or accredited political
party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified
by, the same political party may file a certificate of candidacy to replace the candidate who died,
withdrew or was disqualified. x x x (Emphasis supplied)
Castillo cites Miranda v. Abaya27 as justification for rejecting the substitution of Ramon by
Ruby. But the substitution that the Court did not allow in Miranda is the substitution of a
candidate whose COC has been ordered cancelled on the grounds enumerated in Sections 69 and
78 of the Omnibus Election Code. The reasoning is that it is not possible to substitute such a
person since he cannot be considered a candidate at all. Substitution presupposes the existence of
a candidate to be substituted.
Miranda recognized that it is possible for a disqualified candidate to have a valid COC since the
grounds for disqualification are distinct from the grounds for canceling or denying due course to
a COC under Sections 69 and 78 of the Omnibus Election Code. Thus, it does not follow that a
disqualified candidate necessarily filed an invalid COC. A disqualified candidate whose COC
was neither canceled nor denied due course may be substituted under the proper circumstances
provided by law.
Going to another point, it will be recalled that the COMELEC First Division disqualified Ramon
from running for mayor on April 19, 2010 upon Castillo’s petition. Ramon filed a motion for
reconsideration which went up to the COMELEC En Banc but at 9:00 a.m. on May 4, 2010 he
filed an ex parte manifestation withdrawing his motion for reconsideration. In the afternoon of
the same day, Ruby filed her COC, admittedly before the COMELEC En Banc could act on
Ramon’s withdrawal of his motion for reconsideration. Only on the following day, May 5, did
the COMELEC En Banc acknowledge the withdrawal and considered the First Division’s April
19, 2010 resolution final and executory.28
The Office of the Solicitor General (OSG) joined Alcala and Castillo in claiming that Ruby did
not validly substitute Ramon because at the time that she filed her COC, the COMELEC had not
yet disqualified Ramon by final judgment as required by Section 77 of the Omnibus Election
Code.
But Ramon’s withdrawal of his motion for reconsideration in the morning of May 4, 2010
rendered the COMELEC First Division’s April 19, 2010 resolution final and executory, even
without the En Banc’s formal action. The Court held in Rodriguez, Jr. v. Aguilar, Sr.29 that a
motion for reconsideration, once withdrawn, has the effect of canceling such motion as if it were
never filed. The consequence of this is that the decision subject of the withdrawn motion for
reconsideration ipso facto lapses into finality upon the expiration of period for appeal. Thus, in
accordance with COMELEC Rules, the April 19, 2010 resolution became final and executory
five days from its promulgation or on April 24, 2010.30
The May 5, 2010 COMELEC En Banc resolution merely confirmed the final and executory
nature of the First Division’s April 19, 2010 resolution. As correctly observed by Chairman
Brillantes in his dissent, the withdrawal’s effectivity cannot be made to depend on COMELEC
approval because, if such were the case, substitution of candidates may be frustrated by either the
commission’s delay or inaction.
Castillo claims that, for the substitution of a candidate to be effective, the COMELEC must
approve the same on or before election day.31 Here, the COMELEC En Banc issued Resolution
8917 which approved Ruby’s COC on May 13, 2010 or three days after the elections.
But no law makes the effectivity of a substitution hinge on prior COMELEC approval. Indeed, it
would be illogical to require such prior approval since the law allows a substitute candidate to
file his COC even up to mid-day of election day with any board of election inspectors in the
political subdivision where he is a candidate. Surely, this rules out the possibility of securing
prior COMELEC approval of the substitution.
COMELEC Resolution 8917, which gave due course to Ruby’s COC and directed her inclusion
in the certified list of candidates, amounted to a mere formality since the substitution took effect
when she filed her COC and the required CONA.
Finally, I would like to voice my concern regarding Justice Arturo D.Brion’s view on the
applicability of the three-term limit rule as a ground for disqualification. In his separate opinion,
Justice Brion opines that a candidate who has already served three consecutive terms can only be
disqualified after he has been proclaimed as the winner for fourth term. His theory is that the
Constitution merely prohibits an official from serving more than three consecutive terms; it does
not prohibit him from running for a fourth term.
Such an interpretation, however, would cause confusion in the polls and make a mockery of the
election process. It robs qualified candidates of the opportunity of being elected in a fair contest
among qualified candidates. The candidacy of one who has already served three consecutive
terms is worse than that of a nuisance candidate. Election laws should be interpreted in such a
way as to best determine the will of the electorate, not to defeat it. The Supreme Court has on
occasion upheld the disqualification of candidates who have already served three consecutive
terms from running for another. Indeed in Aldovino, penned by no other than Justice Brion
himself, the dispositive portion read: "The private respondent Wilfredo F. Asilo is declared
DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena City for a prohibited
fourth term."32 (Emphasis supplied)
Thus, while Justice Brion likewise concludes that the action before the COMELEC was a
petition for disqualification and not for the denial or cancellation of his COC, I cannot entirely
agree with his reasoning.
WHEREFORE, I vote to GRANT the petition of Barbara Ruby Talaga in G.R. 196804, and
DISMISS the petition of Philip M. Castillo in G.R. 197015 for lack of merit.
ROBERTO A. ABAD
Associate Justice
Footnotes
1
Rollo, G.R. 196804, pp. 218, 220.
2
Docketed as SPA 09-029 (DC:); id at 88-91.
3
Id.
4
For the periods of October 13 to November 14, 2005 and September 4 to October 30,
2009; id at 229.
5
Issued by the COMU .EC's Second Division 011 November 21l, 2007 and affirmed by
the COMELEC En Banc on October 7, 2008.
6
December 23, 2009, 609 SCRA 234.
7
Id. at 266.
8
Rollo, G.R. 196804, pp. 98-101.
9
Id. at 102-105.
10
Id. at 106-124.
11
Id. at 126.
12
Id. at 130-131.
13
Id. at 133-134.
14
Id. at 176-179.
15
Id. at 135-138.
16
Id. at 142-145.
17
370 Phil. 642 (1999).
18
Rollo, G.R. 196804, pp. 185-214.
19
Id. at 283-298.
20
Id. at 305-318.
21
Id. at 361-375.
22
Supra note 17.
23
Rollo, G.R. 196804, pp. 42-52.
24
Id. at 506-507.
25
356 Phil. 467 (1998).
26
Supra note 17.
27
Id.
28
Rollo, G.R. 196804, pp. 490-491, 527-529.
29
505 Phil. 468 (2005).
30
Part IV, Rule 18, Section 13(b) in relation to Part V, B, Rule 25 of the 1993
COMELEC Rules of Procedure.
31
Rollo, G.R. 197015, pp. 35-36.
32
SEPARATE OPINION
REYES, J.:
I concur with the ponencia’s conclusion that Section 44 of the Local Government Code (LGC)
should be applied in filing the permanent vacancy created in the office of the mayor. However, I
hold a different view on the nature of the petition filed to challenge of Ramon Talaga (Ramon).
The petition filed against Ramon is

one for disqualification and not for
cancellation of certificate of
candidacy (COC).
It is well to remember that Philip Castillo (Castillo) challenged Ramon’s candidacy by filing a
petition which seeks to deny due course or cancel the COC of the latter on the ground that he
already served three (3) consecutive terms as City Mayor of Lucena. I am of the view that the
petition must be treated as one for disqualification since the ground used to support the same, i.e.
the violation of the three-term limit, is a disqualifying circumstance which prevents a candidate
from pursuing his candidacy.
Indeed, the violation of the three-term limit is not specifically enumerated as one of the grounds
for the disqualification of a candidate under Sections 12 and 68 of the Omnibus Election Code
(OEC) or Section 40 of the LGC. Similarly, however, the same ground is not particularly listed
as a ground for petition for cancellation of COC under Section 78 of the OEC, in relation to
Section 74 thereof. The mentioned provisions read:
and hearing, not later than fifteen days before the election.
Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that the
certificate of candidacy are true to the best of his knowledge.
The debate in the categorization of the violation of the three-term limit stemmed from the
statement of the candidate in his COC that "he is eligible to the office he seeks to be elected to."
The ponencia took this statement to embrace the candidate’s express declaration that he had not
served the same position for three (3) consecutive terms. With all due respect, I believe it is
reading beyond the plain meaning of the statement. The COC is a declaration by the candidate of
his eligibility specifically that he possesses all the qualifications required by the office. The
candidate is, in effect, declaring that he possesses the minimum or basic requirements of the law
for those intending to run for public office. These requirements are stated in the following
provisions of the Constitution and the LGC:
Sections 3 and 6 of Article VI of the Constitution:
Sec. 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on
the day of the election, is at least thirty-five years of age, able to read and write, a registered
voter, and a resident of the Philippines for not less than two years immediately preceding the day
of the election.
Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born

citizen of the Philippines, and, on the day of the election, is at least twenty-five years of age, able
to read and write, and, except the party-list representatives, a registered voter in the district in
which he shall be elected, and a resident thereof for a period of not less than one year
immediately preceding the day of the election.
Sections 2 and 3 of Article VII of the Constitution:
Sec. 2. No person may be elected President unless he is a natural-born citizen of the Philippines,
a registered voter, able to read and write, at least forty years of age on the day of the election,
and a resident of the Philippines for at least ten years immediately preceding such election.
Sec. 3. There shall be a Vice-President who shall have the same qualifications and term of office
and be elected with and in the same manner as the President. He may be removed from office in
the same manner as the President.
xxxx
Section 39 of the LGC:
Sec. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city, or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or dialect.
xxxx
(c) Candidates for the position of Mayor or Vice-Mayor of independent component cities,
component cities, or municipalities must be at least twenty-one (21) years of age on election day.
Basically, the qualifications for running for public office relate to age, residence, citizenship and
status as registered voter. These facts are material as they are determinative of the fitness of the
candidate for public office. In imposing these qualifications, the law seeks to confine the right to
participate in the electoral race to individuals who have reached the age when they can seriously
reckon the significance of the responsibilities they wish to assume and who are, at the same time,
familiar with the current state and pressing needs of the community.
Thus, when a candidate declares in his COC that he is eligible to the office for which he seeks to
be elected, he is attesting to the fact that he possesses all the qualifications to run for public
office. It must be deemed to refer only to the facts which he expressly states in his COC, and not
to all other facts or circumstances which can be conveniently subsumed under the term
"eligibility" for the simple reason that they can affect one’s status of candidacy. To hold the
contrary is to stretch the concept of "eligibility" and, in effect, add a substantial qualification
before an individual may be allowed to run for public office.
On the other hand, the grounds for disqualification pertain to acts committed by an aspiring local
servant, or to a circumstance, status or condition which renders him unfit for public service.
Possession of any of the grounds for disqualification forfeits the candidate of the right to
participate in the electoral race notwithstanding the fact he has all the qualifications required
under the law for those seeking an elective post.
The violation of the three-term limit is a circumstance or condition which bars a candidate from
running for public office. It is thus a disqualifying circumstance which is properly a ground for a
petition for disqualification.
Section 44 of the LGC was properly

applied in filling the permanent
vacancy in the office of the mayor.
I agree with the ponencia’s conclusion that Roderick Alcala (Alcala), the duly-elected Vice-
Mayor should succeed to the office of the mayor. Section 44 of the LGC clearly states:
Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice
Mayor.  If a permanent vacancy occurs in the office of the governor or mayor, the vice-
governor or vice-mayor concerned shall become the governor or mayor. x x x.
The Commission on Elections (COMELEC) en banc affirmed Ramon’s disqualification on May

5, 2010. This eventuality could have given Castillo, the candidate who received the second
highest number of votes, the right to be proclaimed to the office of the mayor. However, it must
be noted that the COMELEC gave due course to Barbara Ruby Talaga’s (Barbara) COC as
substitute candidate for Ramon and was even proclaimed Mayor of Lucena City. It was only
after the elections that a petition was filed to challenge Barbara’s eligibility and was ruled upon
by the COMELEC. Specifically, on January 11, 2011, the COMELEC Second Division
dismissed the petition and the petition-in-intervention filed by Alcala. However, on May 20,
2011, the COMELEC en banc issued a Resolution, reversing the ruling of the Second Division,
the dispositive portion of which reads as follows:
1. REVERSING and SETTING SIDE the January 11, 2011 Resolution of the Second
Division;
2. GRANTING the petition-in-intervention of Roderick A. Alcala;

issued therefore;
of the LGC;
xxxx
Upon the finality of the foregoing resolution, a permanent vacancy was created in the office of
the mayor which therefore must be filled in accordance with Section 44 of the LGC.
Castillo, the candidate who received the second highest number of votes, cannot be deemed to
have won the elections. It is well-settled that the ineligibility of a candidate receiving majority
votes does not entitle the eligible candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be deemed elected to the office. The
votes intended for the disqualified candidate should not be considered null and void, as it would
amount to disenfranchising the electorate in whom sovereignty resides.1 The lone instance when
the second placer can take the stead of a disqualified candidate was pronounced in Labo v.
COMELEC,2 viz:
If the electorate fully aware in fact and in law of a candidate’s disqualification so as to bring such
awareness within the realm of notoriety, would nonetheless cast their votes in favor of the
ineligible candidate. In such case, the electorate may be said to have waived the validity and
efficacy of their votes by notoriously misapplying their franchise or throwing away their votes,
in which case, the eligible candidate obtaining the next higher number of votes may be deemed
elected.
Based on the circumstances obtaining in this case, Barbara’s disqualification was not notoriously
known in Lucena City since the COMELEC was only able to rule on her disqualification after
the elections. Thus, during the election day, the electorate reasonably assumed that Barbara is a
qualified candidate and that the votes they cast in her favor will not be misapplied. Little did they
know that the candidate they voted for will eventually be disqualified and ousted out of office.
In view of the foregoing, I vote to DISMISS the petitions.
BIENVENIDO L. REYES
Associate Justice
Footnotes
1
Gonzales v. COMELEC, G.R. No. 192856, March 8, 2011, 644 SCRA 761.
2
G.R. No. 105111, July 3, 1992, 211 SCRA 297.

SUPREME COURT
Manila
EN BANC
G.R. No. 170634 January 8, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
PEDRO BUADO, JR. y CIPRIANO, Accused-Appellant.
DECISION
BERSAMIN, J.:
This case tells the revolting story of a lecherous father who made two of his very young
daughters his sex slaves for several years right in the family home. The trial court convicted him
and prescribed the death penalty for each of the two counts of rape. There would be no hesitation
to affirm the penalty, but the intervening passage of the law prohibiting the imposition of the
death penalty now spares him from the supreme penalty.
Under final review is the Decision promulgated on April 27, 2005,1 whereby the Court of
Appeals (CA) affirmed with modification the May 5, 2003 judgment rendered in Criminal Case
No. 912-V-99 and Criminal Case No. 974-V-99by the Regional Trial Court (Branch 171)in
Valenzuela City (RTC),2 finding Pedro BuadoyCipriano Jr. guilty of two counts of rape
committed against his two minor daughters.
Antecedents
The amended informationsalleged as follows:
Criminal Case No. 912-V-99
That sometime April 1999, in Valenzuela, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, actuated by lust, force,threat and intimidation, did
then and there willfully, unlawfully and feloniously lie and have carnal knowledge of AAA,3 his
daughter, a ten (10) year old minor, against her will and consent, to her damage and prejudice in
whatever amounts may be awarded her under the provisions of the Civil Code.
Contrary to Law.
Criminal Case No. 974-V-99

That on or about November 10, 1999 in Valenzuela City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and
there willfully, unlawfully and feloniously he and have sexual intercourse with one BBB, 8 years
old, his daughter.
Contrary to Law.4
The accused, assisted by counsel de officio, pled not guilty to each of the amended informations.
Evidence of the Prosecution
The Prosecution presented eight witnesses, namely: victims AAA and BBB; their mother CCC
and older sister DDD; Dr. Ida de Perio-Daniel; Dr.Mariella S. Castillo; PO2 Luisito M. Dela
Cruz; and Rosalina E. Chiong.
The accused and CCC were legally married, and used to live together in F. Bautista Street at
Marulas, Valenzuela City with their 13 children, eight of whom are girls. Among their children
were AAA and BBB. AAA was born on February 13, 1989,5 and BBB on October 11, 1990.6
A.
The rape of AAA
On April 13, 1999, at about 3:00 p.m., CCC and her children were attending a get-together party
in the adjacent house of DDD, then already married. The accused summoned AAA home from
the party. Upon AAA getting home, he ordered her to enter the bedroom, and once she was
inside, he undressed her and inserted his finger in her vagina.7He then went on top of her and
inserted his penis in her vagina, giving vent to his lust.8 AAA could only cry while he was
forcing himself on her.9
Missing AAA at the party, CCC returned to the house and saw that her husband was there. He
cursed her many times, but she simply ignored him and went upstairs, where she found AAA
crying. AAA told her mother that her father had just molested her. AAA further told her mother
that he had done the same thing to her several times in the past,10 starting when she was still in
Grade I. At the time, AAA was already in Grade 4. AAA told her mother that he had also raped
her several times in the past only when CCC was not home, but that she had kept silent about the
rapes because she had been too afraid of him to complain. Besides, AAA also knew that he kepta
gun at home and had a violent temper, having frequently beaten his wife and children for no
apparent reason. AAA explained in court that she finally revealed her ordeals to her mother
because her sufferings had become unbearable,11 saying: Nahihirapan po ako.12
It was not until June 9, 1999, however, that CCC and AAA mustered the courage to leave home
and denounce the father’s crimes. They hastened to the National Bureau of Investigation (NBI)
to finally lodge a complaint against him. AAA was examined by Dr. Ida Perio-Daniel, who
incorporated her findings in Living Case No. MG-99-537,13 to wit:
GENERAL PHYSICAL EXAMINATION:
Height: 123.0 cms. Weight: 44 lbs
Fairly nourished conscious, coherent, cooperative, ambulatory subject. Breast infantile. Areola,
light brown, 1.4 cm, in diameter, Nipples light brown, flat 0.3 cm. In diameter.
No extragenital physical injury noted.
GENITAL EXAMINATION:
Pubic hair, no growth. Labia majora and minora, coaptated. Fourchette, tense.Vestibular mucosa,
pinkish. Hymen, short, thin, with old healed complete laceration at 6 o'clock position
corresponding to the face of a watch, edges rounded non-coaptable. Hymenalorifice, admits a
tube 2.0 in diameter. Vaginal walls, tight. Rugosities, prominent.
***
CONCLUSIONS:
1. No evident sign of extragenital physical injury present on the body of the subject at the
time of the examination.
2. Old healed hymenal laceration present.
Afterwards, CCC and AAA, still in fear of the accused, did not want to return home. Hence, the
NBI referred them for temporary shelter to the Department of Social Welfare and Development
(DSWD) Haven in Alabang, Muntinlupa City. The rest of the unmarried children, including the
then 9-year old BBB, continued to live with their father.
B.
The rape of BBB
The rape of BBB was committed a few months later. At 6:00 a.m. of November 10, 1999, the
accused commanded BBB, who was then in the kitchen of their house, to undress and lie down
on a piece of plywood laid out on the ground.14 Already naked from the waist down, he pushed
her down to the floor, and lubricated his penis and BBB’s vagina with cooking oil.15
He next went on top of her, inserted his penis into her genitalia, and made pumping motions.16
He ignored all her pleas for him to stop.17 She stated that he had also raped her many times
previously but that she had kept silent about the rapes out of fear of him.18 But she could not
anymore bear her pain that last time; hence, she went to her older sister DDD’s house and finally
reported the rape to DDD.19 When BBB was narrating about her last rape, DDD could only
embrace her young sister and cry.
Later on, DDD called up their mother who was then staying at the DSWD Haven in Alabang to
tell her about what the accused had just committed against BBB. CCC advised DDD to bring
BBB to the DSWD office in Valenzuela. The DSWD office endorsed BBB to the Child
Protection Unit of the Philippine General Hospital (PGH), where Dr. Mariella S. Castillo
examined the child. The findings were initially reflected in a provisional medical certificate on
November 10, 1999,20 and ultimately in a final medical certificate issued on the same date,21 to
wit:
GENITAL EXAMINATION:
External Genitalia: normal
Hymen: crescentic, (+) absent hymenal tissue at 6 o'clock, (+) attenuation from 2 o'clock to 6
o'clock, no hematoma, no laceration, no discharge
Anus: Normal
LABORATORY EXAMINATION:
Vaginal swab smear: no spermatozoa seen.
IMPRESSION:
Disclosure of physical and sexual abuse.
Multiple hematomas on chest and lower extremities.
Hematomas on chest and extremities are consistent with the patient's disclosure
Genital finding of absent posterior hymen and is indicative of prior penetration injury that has
healed.
Armed with the provisional medical certificate issued by Dr. Castillo, DDD brought BBB to the
Valenzuela Police Station to charge the accused with rape. A police team was immediately
dispatched to the house of the accused to invite him for investigation. After the accused was
brought in to the station, BBB and her elder sister gave their respective written statements.22 On
that occasion, BBB positively pointed to her father as the rapist.23
Version of the Defense
The accused was his own sole witness. He denied raping AAA and BBB.24 He justified the
medico-legal findings on BBB by shifting the blame on his drug addict son EEE, stating that in
May 1999, BBB had told him about EEE raping her;25 that BBB even showed him a plastic
sachet containing small white granules that EEE had supposedly dropped when he raped her;26
that he hit EEE upon learning about the rape; that he wanted to charge EEE but his wife
prevented him from doing so in order to avoid embarrassment to the family; and that after CCC
left home, he planned on reporting the rape to the police authorities, but EEE became aware of
his plan and quickly left home and stayed away.
The accused testified that he was a shoemaker earning an average of P15,000.00/month; that
although he thought that his income sufficed for him and his family, CCC felt differently,
because she was envious of their rich neighbors; that CCC suggested that he change his
livelihood and deal in prohibited drugs; that because he refused, CCC became angry and caused
AAA and BBB to bring the false charges against him;27 that CCC also wanted to reconcile with
her former live-in partner with whom she had cohabited prior to their marriage; that he could not
understand why she wanted to do that, but there was nothing he could do about it; that in May
1999, CCC left their conjugal home along with their two youngest daughters; that he had no idea
about where they had gone to until he learned that they were sheltered in the DSWD Haven in
Alabang; and that they returned home after six months only when he was already in detention.28
The accused said that he had disciplined his children either verbally or physically (i.e., by hitting
them with his bare hands or with a piece of wood).29 In that regard, he admitted having been
charged with child abuse in 1999 for spanking FFF, another son, but he insisted that the charge
had been dismissed.
Ruling of the RTC
After trial, the RTC convicted the accused, disposing as follows:
WHEREFORE, premised on the foregoing, the Court finds accused PEDRO BUADO, JR. y
CIPRIANO GUILTY beyond reasonable doubt of the crime of two (2) counts of Rape penalized
under Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659, and
sentencing him to suffer in each case the death penalty and to pay in each case the victims the
following sums: Seventy Five Thousand Pesos (P75,000.00) as civil indemnity; Fifty Thousand
Pesos (P50,000.00) as moral damages and Twenty Five Thousand Pesos (P25,000.00) as
exemplary damages.
Pursuant to the Constitution, let the entire records of these cases be forwarded to the Honorable
Supreme Court for automatic review.
SO ORDERED.30
Ruling of the CA
Elevated to the Court on automatic appeal, the records were transferred to the CA for
intermediate review pursuant to People v. Mateo.31
In due course, on April 27, 2005, the CA affirmed the conviction, but reduced the death penalty
to reclusion perpetua in Criminal Case No. 912-V-99,32 as follows:
WHEREFORE, premises considered, the Decision of Branch 171, Regional Trial Court,
Valenzuela City, dated May 5, 2003, is MODIFIED relative to Criminal Case No. 912-V-99
wherein the penalty imposed is reduced to Reclusion Perpetua and the civil liability ex delito is
reduced to P50,000.00. The award of moral and exemplary damages is AFFIRMED.
Relative to Criminal Case No. 974-V-99, the penalty of death and the award of civil liability ex
delito of P75,000.00 and exemplary damages of P25,000.00 are AFFIRMED. The award of
moral damages is hereby INCREASED to P75,000.00
SO ORDERED.
Issues
Hence, this appeal upon the following errors, namely:33
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF THE CRIME CHARGED DESPITE THE FACT THAT HIS GUILT
WAS NOT PROVEN BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY

UPON THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE
TO PROVE THE SPECIAL QUALIFYING CIRCUMSTANCES OF RELATIONSHIP
AND MINORITY.
The accused continues to assail the credibility of AAA and BBB, stressing that their testimonies
were replete with incredulous statements, and insisting that they were motivated by anger and
revenge rather than by a sincere call for justice.
Ruling
The appeal has no merit.
In reviewing rape convictions, the Court has been guided by three principles, namely: (a) that an
accusation of rape can be made with facility; it is difficult for the complainant to prove but more
difficult for the accused, though innocent, to disprove; (b) that in view of the intrinsic nature of
the crime of rape as involving only two persons, the rapist and the victim, the testimony of the
complainant must be scrutinized with extreme caution; and (c) that the evidence for the
Prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the
weakness of the evidence for the Defense.34
Ultimately and frequently, the resolution of the charge of rape hinges on the credibility of the
victim’s testimony. The Court has consistently relied on the assessment of such credibility by the
trial court, because the factual findings of the trial court, particularly those bearing on such
assessment, are the product of the trial judge’s peculiar opportunity to observe the deportment
and demeanor of the witnesses while they personally appear and testify during the trial, as
contrasted with the dependence by the appellate courts on the mute pages of the records of the
trial.35 This consistent reliance proceeds from the reality that the trial judge is in the best position
to detect that frequently thin line between truth and prevarication that determines the guilt or
innocence of the accused.36 Thus, an appellate court will not disturb the credence the trial court
accorded to the testimonies of the witnesses unless the trial court is shown to have overlooked or
arbitrarily disregarded facts and circumstances of significance in the correct resolution of the
case.37
Here, the RTC as the trial court and the CA as the intermediately reviewing tribunal did not
overlook or disregard any fact or circumstance of significance. Instead, they correctly
appreciated the evidence, and rightly concluded that the accused committed the rapes of his own
daughters. They regarded and accepted AAA and BBB as credible witnesses whose recollections
about their father’s lecherous acts deserved the fullest faith and credence.
The trial records entirely supported the lower courts’ findings in favor of the credibility of AAA
and BBB’s recollections. Indeed, AAA and BBB deserved the credence accorded to them, for
they were reliable in their recollection of their ordeals at the hands of the accused.
AAA narrated the rape in sufficient detail and candor during her direct examination, viz:
xxxx
ATTY. VINARAO
Q. Now, will you please tell this Court what if anything happened to you on that date, April 13,
1999?
A. I was called by my father to go to the bedroom, maam.
Q. And what happened if any inside the room?
A. He removed my clothes and he placed his fingers to my vagina and he placed his penis into
my vagina, maam.
Q. What was your reaction if any when your father was committing those sexual acts?
A. I was crying, maam.
Q. Is that the only time the sexual acts was committed to you by your father?
A. No ma’am, several times.
Q. When you mentioned the words "several times", can you please give us the numerical value
of such word?
A. More than ten (10) times, maam, but I cannot remember the exact date but it started when I
was in Grade I.
Q. And what grade were you when your father raped you last April 13, 1999?
A. When I was going to Grade 4, sir.
Q. On what occasion does this sexual act occurred?
A. Everytime my mother is not in the house, ma'am.
Q. And what did you do if any after the last incident on April 13, 1999?
A. I reported it to my mother, maam.
Q. Why did you not tell your mother or any other person regarding the incident on April 13,
1999?
A. Because I was threatened by my father that he will kill me if I will report the matter to my
mother, maam.
Q. And what made you decide to tell your mother finally about the incident on April 13, 1999?
A. Because I was suffering, maam. (Nahihirapanpoako).38
xxxx
On her part, BBB directly and candidly reported the details of the rape, to wit:
xxxx
Q. Do you recall the 10th of November, 1999?
A. Yes, maam.
Q. Where were you on that day?
A. I was in our house, maam.39
xxxx
Q. Now, will you please tell this Court what if anything happened to you on that day?
A. At 6: 00 a.m., I was in our kitchen and I was instructed by my father to undress and lie on a
plywood. He placed a cooking oil in my crotch and he inserted it in my crotch.
Q. When you mentioned the word "Singit", what part of your body are you referring to?
A. In my vagina, maam. (Witness pointing to her vagina)
Q. And when you mentioned the word "Singit", what part of your father's body were you
referring to?
A. His penis, maam.
Q. So what was your reaction when your father was committing those sexual acts on you?
A. I was pleading on him and told him to stop, maam.
Q: Was that the only time that your father committed sexual acts on you?
A: No, maam.40
xxxx
Q: So what did you do after that incident on November 10, 1999?
A: I told my DDD about that incident, maam.
Q: Why did you not tell your mother or other persons about that incident on November 10, 1999?
A: Because I was afraid of my father. He always maul us, maam.
Q: And what made you decide to tell your sister DDD about the November 10,1999 incident?
A:Because I can no longer bear anymore the things my father was doing to me, maam.41
xxxx
ATTY. CRISOSTOMO
Q: This oil, let’s be specific about this oil. What is this oil you are speaking of?
A: The one used in frying fish, sir.
Q: Did you follow your father’s order for you to apply oil in your crotch?
A: No. sir.
Q: So you did not apply oil in your crotch?
A: Yes, sir.
Q: What about his order for you to lie down on the plywood, did you heed his order?
A: He made me to lie down, sir.
Q: How did he make lie down?
A: He made me lie down; and he suddenly pushed me, sir.
Q: After that what happened?
A: He placed an edible oil on his crotch sir.
Q: How did he do it?
A: He got some cooking oil and placed it on his crotch, sir.
Q: Not on your crotch?
A: Also on my crotch, sir.42
ATTY. CRISOSTOMO
Q: Was he naked at the time he applied oil on his crotch or (was) he still wearing his pants?
A: He was already naked, sir.
Q: Naked from the waist down only?
A: Yes, sir.
Q: And after he applied oil on his crotch, you said he placed his penis between your thighs, is
that correct?
A: Yes, sir.
Q: In other words, for clarity, what he did was to, what he did, in Tagalog, "IPINAIPIT NIYA
ANG ARI NIYA SA HITA MO", ganyan ba ang ginawa nya?
A: Yes, sir.43
Q: What did you feel when your father inserted his penis between your tightly closed thighs?
A: It was painful, sir.
Q: What part of your body was aching?

A: (Witness pointing to her vagina)
Q: Not your thighs?
A: My vagina, sir. PEPE
Q: Did you bleed when your father did what you just described, to you?
A: Yes, sir.
Q: All this time that your father was doing the alleged act which according to you lasted for two
(2) hours, what are you doing or how were you reacting? What is your reaction?
A: I was pleading to him, sir.44
xxxx
On the other hand, the accused did not bring to the Court’s attention any facts and circumstances
of weight that, if properly considered, would change the result into one favorable to him. He did
not also submit to us any argument that would lead us to doubt the findings of the RTC and the
CA on the credibility of AAA and BBB.
Although the accused would discredit AAA by harping on her failure to immediately report the
rape and to denounce him sooner to the proper authorities, the Court cannot but reject his attempt
to discredit AAA’s accusation. The attempt would rest on drawing an inference of estoppel
against AAA, in that AAA would have denounced him sooner if he had truly ravished her.
However, the inference of estoppel could be properly drawn against AAA only if the trial records
did not plausibly explain the cause of delay. We find that his frequent acts of domestic violence
against even the young members of his family caused AAA and her mother to fear him. He
justified his violent tendencies by describing himself as a strict disciplinarian at home. His
justification was implausible, however, considering that his having been once charged with child
abuse in which the victim had been one of his own sons confirmed that his chastisement had
exceeded the tolerable limits of parental discipline. Moreover, AAA knew that he had kept a gun
at home. This, coupled by his children’s undue fear of him, cowed AAA into silence about her
great sufferings for a long period of time, and explained why she came out into the open to
denounce him only on June 9, 1999. By then, his unabated lecherousness towards AAA had
become unbearable. Under the circumstances, the delay in reporting him to the proper authorities
is not a factor in determining the credibility of the charge against him of his own daughter.45 To a
child of very tender years like AAA, the threats of actual physical harm would definitely instill a
fear overwhelming enough to force her to suffer her ordeals in silence for a period of time.
Verily, there has never been any uniformity or consistency of behavior to be expected from those
who had the misfortune of being sexually molested.46 The Court has pointed out that some of
them have found the courage early on to publicly denounce the abuses they experienced, but that
there were others who have opted to initially keep their harrowing ordeals to themselves and to
just move on with their lives as if nothing had happened,47 until the limits of their tolerance were
reached. AAA belonged to the latter group of victims, as her honest declarations to the trial court
revealed. Also, we cannot expect from the immature and inexperienced AAA to measure up to
the same standard of conduct and reaction that we would expect from adults whose maturity in
age and experience could have brought them to stand up more quickly to their interest. Lastly,
long silence and delay in reporting the crime of rape to the proper authorities have not always
been considered as an indication of a false accusation.48
The ill motive that supposedly impelled AAA and BBB to initiate the charges against their own
father (i.e., they hated him because of the physical abuse he had inflicted on them and on their
mother)is unworthy of serious consideration. To start with, the imputation of ill motive, being
out rightly speculative, was unreliable. Moreover, the imputed ill motive, even assuming it to be
true, did not necessarily mean that the very serious charges of rape were fabricated only to get
back at him. And, finally, the Court has not been deterred from affirming the conviction in
incestuous rape by rejecting the lecherous father’ simputation of ill motive based on alleged
familial discord and undue influence, hostility or revenge,49or on parental punishment or
disciplinary chastisement.50
The accused argues that the findings of old healed vaginal lacerations during the physical
examinations disproved the charges against him, stressing that the old healed lacerations, being
indicative of the lapse of three months from the time of the alleged sexual assault to the time of
the medical examination, belied AAA’s claim of being raped on April 13, 1999, which was but
only two months prior to the medical examination. He insists that the finding that her genitalia
showed no fresh laceration or hymenal injury suffered in the previous seven days was
inconsistent with BBB’s claim about being raped nine hours prior to her physical examination.
The arguments of the accused are unwarranted. The essence of rape is the carnal knowledge of a
female either against her will (through force or intimidation) or without her consent (where the
female is deprived of reason or otherwise unconscious, or is under 12 years of age, or is
demented).51
Carnal knowledge of a female simply means a male having bodily connections with a female. As
such, the presence or absence of injury or laceration in the genitalia of the victim is not decisive
of whether rape has been committed or not.52 Such injury or laceration is material only if force or
intimidation is an element of the rape charged; otherwise, it is merely circumstantial evidence of
the commission of the rape. Verily, a medical examination and a medical certificate, albeit
corroborative of the commission of rape, are not indispensable to a successful prosecution for
rape.53 The accused may then be convicted solely on the basis of the victim’s credible, natural
and convincing testimony.54 This is no less true when the rape victim testifies against her own
father; unquestionably, there would be reason to give her testimony greater weight than usual.55
In fine, the proof of guilt adduced against the accused for each of the rapes charged was beyond
reasonable doubt if all he could assert in his defense was a mere denial of the positive
declarations of his two minor daughters. He now deserves to the fullest extent the condign
penalties the law sets for his crimes.
We next deal with the penalty to be properly meted on the accused.

Under Article 266-B of the Revised Penal Code, the death penalty is imposed if the rape is
committed with the attendance of any "aggravating/ qualifying circumstances." One of such
"aggravating/qualifying circumstances" is "when the victim is under eighteen (18) years of age
and offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent of the victim." Both
minority and actual relationship must be alleged and proved; otherwise, conviction for rape in its
qualified form will be barred.56
To establish the age of the minor victim, either as an element of the crime or as a qualifying
circumstance, the Court has set the guidelines in People v. Pruna,57 as follows:
In order to remove any confusion that may be engendered by the foregoing cases, we hereby set
the following guidelines in appreciating age, either as an element of the crime or as a qualifying
circumstance.
1. The best evidence to prove the age of the offended party is an original or certified true
copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as

baptismal certificate and school records which show the date of birth of the victim would
suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or
destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s
mother or a member of the family either by affinity or consanguinity who is qualified to
testify on matters respecting pedigree such as the exact age or date of birth of the
offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be
sufficient under the following circumstances:
a. If the victim is alleged to be below 3 years of age and what is sought to be

proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is sought to be

proved is that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is sought to be

proved is that she is less than 18 years old.
4. In the absence of a certificate of live birth, authentic document, or the testimony of the
victim’s mother or relatives concerning the victim’s age, the complainant’s testimony
will suffice provided that it is expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended party. The
failure of the accused to object to the testimonial evidence regarding age shall not be
taken against him.
6. The trial court should always make a categorical finding as to the age of the victim.58
In Criminal Case No. 912-V-99, the amended information alleged that AAA was only ten years
old when the rape was committed in April 1999 and that she was the daughter of the accused.
During the trial, however, the Prosecution adduced no evidence to establish her minority save her
testimony and that of her mother’s.59 In the absence of proof of AAA’s minority in accordance
with the guidelines set in People v. Pruna, we concur with the CA’s conclusion that he could not
be properly found guilty of qualified rape. Indeed, his substantial right to be informed of the
nature and cause of the accusation against him would be nullified otherwise. Accordingly, the
CA correctly prescribed reclusion perpetua as the penalty.
On the other hand, the amended information in Criminal Case No. 974-V-99 sufficiently stated
the minority of BBB and her being the daughter of the accused. Further, the Prosecution
established that BBB was only nine years old at the time of the rape on November 10, 1999
through her certificate of live birth. In addition, her own mother and older sister DDD both
attested that she was the legitimate daughter of the accused.60 In fact, even the accused himself
admitted his legitimate paternity of BBB.61 Considering that the Prosecution duly proved BBB’s
minority and her relationship with the accused, the CA correctly affirmed the penalty of death
meted by the RTC.
With the intervening passage on June 24, 2006 of Republic Act No. 9346,62however, the
imposition of the death penalty has become prohibited. The retroactive application to Criminal
Case No. 974-V-99 of the prohibition against the death penalty must be made here because it is
favorable to the accused.63 Nonetheless, he shall not be eligible for parole, because Section 3 of
Republic Act No. 9346 expressly provides that persons "whose sentences will be reduced to
reclusion perpetua by reason of this Act" shall not be eligible for parole under Act No. 4103
(Indeterminate Sentence Law), as amended.
We uphold the award by the CA of P50,000.00 as civil indemnity, P50,000.00 as moral damages,
but raise the amount of exemplary damages in Criminal Case No. 912-V-99 to P30,000.00 to
conform to prevailing jurisprudence.
In Criminal Case No. 974-V-99, the CA sustained the P75,000.00 granted as civil indemnity,
increased the moral damages to P75,000.00, and retained P25,000.00 as exemplary damages.
Instructive on the civil liabilities to be imposed in Criminal Case No. 974-V-99 is People v.
Antonio,64where the Court held that Republic Act No. 9346 prohibited only the imposition of the
death penalty and did not affect the corresponding pecuniary or civil liabilities. Based on the
pronouncement in People v. Bejic65 to the effect that the civil indemnity should be in the amount
of P75,000.00 if the crime is qualified by circumstances that warrant the imposition of the death
penalty, the Court affirms the separate amounts of P75,000.00 for civil indemnity and moral
damages, without need of any pleading and proof, but raises the amount of exemplary damages
from P25,000.00 to P30,000.00.66
WHEREFORE, the Court AFFIRMS the decision promulgated on April 27, 2005 in all respects,
subject to the MODIFICATION that: (a) the penalty in Criminal Case No. 974-V -99 is reclusion
perpetua, without eligibility for parole; (b) the amount of exemplary damages in Criminal Case
No. 912-V-99 and Criminal Case No. 974-V-99 is raised to P30,000.00 each; and (c) all the
items of civil liability shall earn interest of 6% per annum from the finality of this decision until
full payment.
The accused shall further pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice




MARVIC MARIO VICTOR F. LEONEN

Associate Justice
CERTIFICATION
I certify that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the court.

Chief Justice
Footnotes
1
Rollo, pp. 3-18; penned by Associate Justice Arcangelita Romilla-Lontok (retired), and
concurred in by Associate Justice Rodrigo V. Cosico (retired)and Associate Justice
Danilo B. Pine (retired).
2
CA rollo, pp. 72-85.
3
For purposes of this decision, the real names of the victims in these two cases and of
their mother and sister are withheld pursuant to Republic Act No. 7610 and Republic Act
No. 9262; in lieu of their real names, they are designated by assumed appellations and
sufficient descriptions; see also People v. Cabalquinto, G.R. No. 167693, September 19,
2006, 502 SCRA 419.
4
CA rollo, p. 143
5
TSN, 8 May 2000, p. 6.
6
Certificate of Live Birth of BBB; Exh. "A" (Crim. Case No. 974-V-99) for BBB.
7
TSN, 8 May 2000, pp. 7 and 12.
8
Id.
9
Id .
10
Id.at7-8.
11
Id.at9.
12
Id.
13
Exhibit C.
14
TSN, 21 August 2000, pp. 5-6, 21.
15
Id. at 6, 23-24.
16
Id. at 25.
17
Id. at 7-26.
18
Id. at 7-8.
19
Id.
20
Exhibit C (Crim. Case No. 974-V-99) and submarkings.
21
Exhibit E and submarkings..
22
Exhibit B; Exhibit D.
23
TSN, 21 August 2000, p. 12.
24
TSN, 29 January 2001, pp. 4-5.
25
Id. at 18.
26
Id.at17-19.
27
Id. at 5-7.
28
TSN, 9 August 2001, pp. 4-5.
29
TSN, 12 July 2001, p. 19.
30
CA rollo, p. 39.
31
G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
32
Supra note 1, at18.
33
CA rollo, p. 51.
34
People v. Ortoa, G.R. No. 176266, August 8, 2007, 529 SCRA 536, 546; People v.
Marahay, G.R. Nos. 120625-29, January 28, 2003, 396 SCRA 129, 137.
35
People v. Ortoa, p. 546.
36
People v. Cruz, G.R. Nos. 128346-48, August 14, 2000, 337 SCRA 680, 693.
37
People v. Miranda, G.R. No. 176064, August 7, 2007; 529 SCRA 399, 406-407.
38
TSN, 8 May 2000, pp. 7-9.
39
TSN, 21 August 2000, p. 5.
40
Id. at 6-7.
41
Id. at 7-8.
42
Id. at 22-23.
43
Id. at 24-25.
44
Id. at 25-26.
45
People v. Dimaano, G.R. No. 168168, September 14, 2005, 469 SCRA 647, 663.
46
People v. Ortoa, supranote 34, at553.
47
Id.
48
People v. Suarez, G.R. Nos. 153573-76, April 15, 2005, 456 SCRA 333, 346.
49
People v. Ortoa, supra note 34, at p. 551.
50
People v. Ceballos, Jr., G.R. No. 169642, September 14, 2007, 533 SCRA 493, 510.
51
People v. Lupac, G.R. No. 182230, September 19, 2012; People v. Taguilid, G.R. No.
181544, April 11, 2012, 669 SCRA 341, 350; People v. Butiong, G.R. No. 168932,
October 19, 2011.
52
People v. Aguiluz, G.R. No. 133480, March 15, 2001, 354 SCRA 465, 471-472;People
v. Gabayron, G.R. No. 102018, August 21, 1997, 278 SCRA 78, 93.
53
People v. Ela, G.R. No. 172368, December 27, 2007; 541 SCRA 508, 512-513.
54
Id. at 513.
55
Id.
56
People v. Latag, G.R. Nos. 140411-13, December 11, 2003, 418 SCRA 122, 134.
57
58
Id. at 603-604.
59
TSN, 8 May 2000; p. 6; TSN, 7 August 2000, p. 4.
60
TSN, 7 August 2000, p. 20; TSN, 4 September 2000, p. 5.
61
TSN, 29 January 2001, pp. 3-4.
62
An Act Prohibiting the Imposition of Death Penalty in the Philippines.
63
The Revised Penal Code provides:
Article 22. Retroactive effect of penal laws. — Penal Laws shall have a retroactive effect
insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this
term is defined in Rule 5 of Article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and the convict is serving
the same.
64
G.R. No. 180920, March 27, 2008, 549 SCRA 569.
65
G .R. No. 174060, June 25, 2007, 525 SCRA 488, 513.
66
People v. Llanas, Jr., G.R. No. 190616, June 29,2010, 622 SCRA 602; People v.
Miranda, G.R. No. 176634, April 5, 2010, 617 SCRA 298.
SUPREME COURT
Manila
EN BANC
G.R. No. 188056 January 8, 2013
SPOUSES AUGUSTO G. DACUDAO AND OFELIA R. DACUDAO, Petitioners,

vs.
SECRETARY OF JUSTICE RAUL M. GONZALES OF THE DEPARTMENT OF
JUSTICE, Respondent.
DECISION
BERSAMIN, J.:
Petitioners - residents of Bacaca Road, Davao City - were among the investors whom Celso G.
Delos Angeles, Jr. and his associates in the Legacy Group of Companies (Legacy Group)
allegedly defrauded through the Legacy Group's "buy back agreement" that earned them check
payments that were dishonored. After their written demands for the return of their investments
went unheeded, they initiated a number of charges for syndicated estafa against Delos Angeles,
Jr., et al. in the Office of the City Prosecutor of Davao City on February 6, 2009. Three of the
cases were docketed as NPS Docket No. XI-02-INV.-09-A-00356, Docket No. XI-02-INV.-09-
C-00752, and Docket No. XI-02-INV.-09-C-00753.1
On March 18, 2009, the Secretary of Justice issued Department of Justice (DOJ) Order No. 182
(DO No. 182), directing all Regional State Prosecutors, Provincial Prosecutors, and City
Prosecutors to forward all cases already filed against Delos Angeles, Jr., et al. to the Secretariat
of the DOJ Special Panel in Manila for appropriate action.
DO No. 182 reads:2
All cases against Celso G. delos Angeles, Jr., et al. under Legacy Group of Companies, may be
filed with the docket section of the National Prosecution Service, Department of Justice, Padre
Faura, Manila and shall be forwarded to the Secretariat of the Special Panel for assignment and
distribution to panel members, per Department Order No. 84 dated February 13, 2009.
However, cases already filed against Celso G. delos Angeles, Jr. et al. of Legacy group of
Companies in your respective offices with the exemption of the cases filed in Cagayan de Oro
City which is covered by Memorandum dated March 2, 2009, should be forwarded to the
Secretariat of the Special Panel at Room 149, Department of Justice, Padre Faura, Manila, for
proper disposition.
For information and guidance.

Pursuant to DO No. 182, the complaints of petitioners were forwarded by the Office of the City
Prosecutor of Davao City to the Secretariat of the Special Panel of the DOJ.3
Aggrieved by such turn of events, petitioners have directly come to the Court via petition for
certiorari, prohibition and mandamus, ascribing to respondent Secretary of Justice grave abuse of
discretion in issuing DO No. 182. They claim that DO No. 182 violated their right to due
process, their right to the equal protection of the laws, and their right to the speedy disposition of
cases. They insist that DO No. 182 was an obstruction of justice and a violation of the rule
against enactment of laws with retroactive effect.
Petitioners also challenge as unconstitutional the issuance of DOJ Memorandum dated March 2,
2009 exempting from the coverage of DO No. No. 182 all the cases for syndicated estafa already
filed and pending in the Office of the City Prosecutor of Cagayan de Oro City. They aver that
DOJ Memorandum dated March 2, 2009 violated their right to equal protection under the
Constitution.
The Office of the Solicitor General (OSG), representing respondent Secretary of Justice,
maintains the validity of DO No. 182 and DOJ Memorandum dated March 2, 2009, and prays
that the petition be dismissed for its utter lack of merit.
Issues
The following issues are now to be resolved, to wit:
1. Did petitioners properly bring their petition for certiorari, prohibition and mandamus
directly to the Court?
2. Did respondent Secretary of Justice commit grave abuse of discretion in issuing DO

No. 182?
3. Did DO No. 182 and DOJ Memorandum dated March 2, 2009 violate petitioners’
constitutionally guaranteed rights?
Ruling
The petition for certiorari, prohibition and mandamus, being bereft of substance and merit, is
dismissed.
Firstly, petitioners have unduly disregarded the hierarchy of courts by coming directly to the
Court with their petition for certiorari, prohibition and mandamus without tendering therein any
special, important or compelling reason to justify the direct filing of the petition.
We emphasize that the concurrence of jurisdiction among the Supreme Court, Court of Appeals
and the Regional Trial Courts to issue the writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction did not give petitioners the unrestricted freedom of
choice of court forum.4 An undue disregard of this policy against direct resort to the Court will
cause the dismissal of the recourse. In Bañez, Jr. v. Concepcion,5 we explained why, to wit:
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms
that the policy is not to be ignored without serious 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
fundamental and more essential tasks that the Constitution has assigned to it. The Court may act
on petitions for the extraordinary writs of certiorari, prohibition and mandamus only when
absolutely necessary or when serious and important reasons exist to justify an exception to the
policy. This was why the Court stressed in Vergara, Sr. v. Suelto:
x x x. The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily
perform the functions assigned to it by the fundamental charter and immemorial tradition. It
cannot and should not be burdened with the task of dealing with causes in the first instance. Its
original jurisdiction to issue the so-called extraordinary writs should be exercised only where
absolutely necessary or where serious and important reasons exist therefor. Hence, that
jurisdiction should generally be exercised relative to actions or proceedings before the Court of
Appeals, or before constitutional or other tribunals, bodies or agencies whose acts for some
reason or another are not 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
Court, it is in either of these courts that the specific action for the writ’s 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. (Emphasis supplied)
In People v. Cuaresma, the Court has also amplified the need for strict adherence to the policy of
hierarchy of courts. There, noting "a growing tendency on the part of litigants and lawyers to
have their applications for the so-called extraordinary writs, and sometimes even their appeals,
passed upon and adjudicated directly and immediately by the highest tribunal of the land," the
Court has cautioned lawyers and litigants against taking a direct resort to the highest tribunal,
viz:
x x x. This Court’s original jurisdiction to issue writs of certiorari (as well as prohibition,
mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this
Court with Regional Trial Courts x x x, which may issue the writ, enforceable in any part of their
respective regions. It is also shared by this Court, and by the Regional Trial Court, with the Court
of Appeals x x x, although prior to the effectivity of Batas Pambansa Bilang 129 on August 14,
1981, the latter's competence to issue the extraordinary writs was restricted to those "in aid of its
appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according
to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to
which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy
is determinative of the venue of appeals, and should also serve as a general determinant of the
appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against
first level ("inferior") courts should be filed with the Regional Trial Court, and those against the
latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction
to issue these writs should be allowed only when there are special and important reasons
therefor, clearly and specifically set out in the petition. This is established policy. It is a policy
that is necessary to prevent inordinate demands upon the Court’s time and attention which are
better devoted to those matters within its exclusive jurisdiction, and to prevent further over-
crowding of the Court's docket. Indeed, the removal of the restriction on the jurisdiction of the
Court of Appeals in this regard, supra— resulting from the deletion of the qualifying phrase, "in
aid of its appellate jurisdiction" — was evidently intended precisely to relieve this Court pro
tanto of the burden of dealing with applications for the extraordinary writs which, but for the
expansion of the Appellate Court corresponding jurisdiction, would have had to be filed with
it.1âwphi1
xxxx
The Court therefore closes this decision with the declaration for the information and evidence of
all concerned, that it will not only continue to enforce the policy, but will require a more strict
observance thereof. (Emphasis supplied)
Accordingly, every litigant must remember that the Court is not the only judicial forum from
which to seek and obtain effective redress of their grievances. As a rule, the Court is a court of
last resort, not a court of the first instance. Hence, every litigant who brings the petitions for the
extraordinary writs of certiorari, prohibition and mandamus should ever be mindful of the policy
on the hierarchy of courts, the observance of which is explicitly defined and enjoined in Section
4 of Rule 65, Rules of Court, viz:
Section 4. When and where petition filed. - The petition shall be filed not later than sixty (60)
days from notice of the judgment, order or resolution. In case a motion for reconsideration or
new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be
counted from notice of the denial of the said motion.
The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower
court or of a corporation, board, officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the
Court of Appeals whether or not the same is in the aid of its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a
quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed
in and cognizable only by the Court of Appeals.
In election cases involving an act or an omission of a municipal or a regional trial court, the
petition shall be filed exclusively with the Commission on Elections, in aid of its appellate
jurisdiction.6
Secondly, even assuming arguendo that petitioners’ direct resort to the Court was permissible,
the petition must still be dismissed.
The writ of certiorari is available only when any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any
plain, speedy, and adequate remedy in the ordinary course of law.7 "The sole office of the writ of
certiorari," according to Delos Santos v. Metropolitan Bank and Trust Company:8
x x x is the correction of errors of jurisdiction, which includes the commission of grave abuse of
discretion amounting to lack of jurisdiction. In this regard, mere abuse of discretion is not
enough to warrant the issuance of the writ. The abuse of discretion must be grave, which means
either that the judicial or quasi-judicial power was exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, or that the respondent judge, tribunal or board evaded
a positive duty, or virtually refused to perform the duty enjoined or to act in contemplation of
law, such as when such judge, tribunal or board exercising judicial or quasi-judicial powers acted
in a capricious or whimsical manner as to be equivalent to lack of jurisdiction.
For a special civil action for certiorari to prosper, therefore, the following requisites must concur,
namely: (a) it must be directed against a tribunal, board or officer exercising judicial or quasi-
judicial functions; (b) the tribunal, board, or officer must have acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (c)
there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law.9 The
burden of proof lies on petitioners to demonstrate that the assailed order was issued without or in
excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.
Yet, petitioners have not shown a compliance with the requisites. To start with, they merely
alleged that the Secretary of Justice had acted without or in excess of his jurisdiction. Also, the
petition did not show that the Secretary of Justice was an officer exercising judicial or quasi-
judicial functions. Instead, the Secretary of Justice would appear to be not exercising any judicial
or quasi-judicial functions because his questioned issuances were ostensibly intended to ensure
his subordinates’ efficiency and economy in the conduct of the preliminary investigation of all
the cases involving the Legacy Group. The function involved was purely executive or
administrative.
The fact that the DOJ is the primary prosecution arm of the Government does not make it a
quasi-judicial office or agency. Its preliminary investigation of cases is not a quasi-judicial
proceeding. Nor does the DOJ exercise a quasi-judicial function when it reviews the findings of a
public prosecutor on the finding of probable cause in any case. Indeed, in Bautista v. Court of
Appeals,10 the Supreme Court has held that a preliminary investigation is not a quasi-judicial
proceeding, stating:
x x x the prosecutor in a preliminary investigation does not determine the guilt or innocence of
the accused. He does not exercise adjudication nor rule-making functions. Preliminary
investigation is merely inquisitorial, and is often the only means of discovering the persons who
may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or
information. It is not a trial of the case on the merits and has no purpose except that of
determining whether a crime has been committed and whether there is probable cause to believe
that the accused is guilty thereof. While the fiscal makes that determination, he cannot be said to
be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not
the fiscal.11
There may be some decisions of the Court that have characterized the public prosecutor’s power
to conduct a preliminary investigation as quasi-judicial in nature. Still, this characterization is
true only to the extent that the public prosecutor, like a quasi-judicial body, is an officer of the
executive department exercising powers akin to those of a court of law.
But the limited similarity between the public prosecutor and a quasi-judicial body quickly
endsthere. For sure, a quasi-judicial body is an organ of government other than a court of law or
a legislative office that affects the rights of private parties through either adjudication or rule-
making; it performs adjudicatory functions, and its awards and adjudications determine the rights
of the parties coming before it; its decisions have the same effect as the judgments of a court of
law. In contrast, that is not the effect whenever a public prosecutor conducts a preliminary
investigation to determine probable cause in order to file a criminal information against a person
properly charged with the offense, or whenever the Secretary of Justice reviews the public
prosecutor’s orders or resolutions.
Petitioners have self-styled their petition to be also for prohibition. However, we do not see how
that can be. They have not shown in their petition in what manner and at what point the Secretary
of Justice, in handing out the assailed issuances, acted without or in excess of his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction. On the other hand, we
already indicated why the issuances were not infirmed by any defect of jurisdiction. Hence, the
blatant omissions of the petition transgressed Section 2, Rule 65 of the Rules of Court, to wit:
Section 2. Petition for prohibition. — When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without
or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter specified therein, or
otherwise granting such incidental reliefs as law and justice may require.
The petition shall likewise be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto,
and a sworn certification of non-forum shopping as provided in the third paragraph of section 3,
Rule 46. (2a) Similarly, the petition could not be one for mandamus, which is a remedy available
only when "any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust,
or station, or unlawfully excludes another from the use and enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a verified petition in the proper
court."12 The main objective of mandamus is to compel the performance of a ministerial duty on
the part of the respondent. Plainly enough, the writ of mandamus does not issue to control or
review the exercise of discretion or to compel a course of conduct,13 which, it quickly seems to
us, was what petitioners would have the Secretary of Justice do in their favor. Consequently,
their petition has not indicated how and where the Secretary of Justice’s assailed issuances
excluded them from the use and enjoyment of a right or office to which they were
unquestionably entitled.
Thirdly, there is no question that DO No. 182 enjoyed a strong presumption of its validity. In
ABAKADA Guro Party List v. Purisima,14 the Court has extended the presumption of validity to
legislative issuances as well as to rules and regulations issued by administrative agencies, saying:
Administrative regulations enacted by administrative agencies to implement and interpret the law
which they are entrusted to enforce have the force of law and are entitled to respect. Such rules
and regulations partake of the nature of a statute and are just as binding as if they have been
written in the statute itself. As such, they have the force and effect of law and enjoy the
presumption of constitutionality and legality until they are set aside with finality in an
appropriate case by a competent court.15
DO No. 182 was issued pursuant to Department Order No. 84 that the Secretary of Justice had
promulgated to govern the performance of the mandate of the DOJ to "administer the criminal
justice system in accordance with the accepted processes thereof"16 as expressed in Republic Act
No. 10071 (Prosecution Service Act of 2010) and Section 3, Chapter I, Title III and Section 1,
Chapter I, Title III of Book IV of Executive Order 292 (Administrative Code of 1987).
To overcome this strong presumption of validity of the questioned issuances, it became

incumbent upon petitioners to prove their unconstitutionality and invalidity, either by showing
that the Administrative Code of 1987 did not authorize the Secretary of Justice to issue DO No.
182, or by demonstrating that DO No. 182 exceeded the bounds of the Administrative Code of
1987 and other pertinent laws. They did not do so. They must further show that the performance
of the DOJ’s functions under the Administrative Code of 1987 and other pertinent laws did not
call for the impositions laid down by the assailed issuances. That was not true here, for DO No
182 did not deprive petitioners in any degree of their right to seek redress for the alleged wrong
done against them by the Legacy Group. Instead, the issuances were designed to assist
petitioners and others like them expedite the prosecution, if warranted under the law, of all those
responsible for the wrong through the creation of the special panel of state prosecutors and
prosecution attorneys in order to conduct a nationwide and comprehensive preliminary
investigation and prosecution of the cases. Thereby, the Secretary of Justice did not act
arbitrarily or oppressively against petitioners.
Fourthly, petitioners attack the exemption from the consolidation decreed in DO No. 182 of the
cases filed or pending in the Office of the City Prosecutor of Cagayan de Oro City, claiming that
the exemption traversed the constitutional guaranty in their favor of the equal protection of law.17
The exemption is covered by the assailed DOJ Memorandum dated March 2, 2009, to wit:
It has come to the attention of the undersigned that cases for syndicated estafa were filed with
your office against officers of the Legacy Group of Companies. Considering the distance of the
place of complainants therein to Manila, your Office is hereby exempted from the directive
previously issued by the undersigned requiring prosecution offices to forward the records of all
cases involving Legacy Group of Companies to the Task Force.
Anent the foregoing, you are hereby directed to conduct preliminary investigation of all cases
involving the Legacy Group of Companies filed in your office with dispatch and to file the
corresponding informations if evidence warrants and to prosecute the same in court.
Petitioners’ attack deserves no consideration. The equal protection clause of the Constitution
does not require the universal application of the laws to all persons or things without distinction;
what it requires is simply equality among equals as determined according to a valid
classification.18 Hence, the Court has affirmed that if a law neither burdens a fundamental right
nor targets a suspect class, the classification stands as long as it bears a rational relationship to
some legitimate government end.19
That is the situation here. In issuing the assailed DOJ Memorandum dated March 2, 2009, the
Secretary of Justice took into account the relative distance between Cagayan de Oro, where
many complainants against the Legacy Group resided, and Manila, where the preliminary
investigations would be conducted by the special panel. He also took into account that the cases
had already been filed in the City Prosecutor’s Office of Cagayan de Oro at the time he issued
DO No. 182. Given the considerable number of complainants residing in Cagayan de Oro City,
the Secretary of Justice was fully justified in excluding the cases commenced in Cagayan de Oro
from the ambit of DO No. 182. The classification taken into consideration by the Secretary of
Justice was really valid. Resultantly, petitioners could not inquire into the wisdom behind the
exemption upon the ground that the non-application of the exemption to them would cause them
some inconvenience.
Fifthly, petitioners contend that DO No. 182 violated their right to the speedy disposition of
cases guaranteed by the Constitution. They posit that there would be considerable delay in the
resolution of their cases that would definitely be "a flagrant transgression of petitioners’
constitutional rights to speedy disposition of their cases."20
We cannot favor their contention.
In The Ombudsman v. Jurado,21 the Court has clarified that although the Constitution guarantees
the right to the speedy disposition of cases, such speedy disposition is a flexible concept. To
properly define that concept, the facts and circumstances surrounding each case must be
evaluated and taken into account. There occurs a violation of the right to a speedy disposition of
a case only when the proceedings are attended by vexatious, capricious, and oppressive delays,
or when unjustified postponements of the trial are sought and secured, or when, without cause or
justifiable motive, a long period of time is allowed to elapse without the party having his case
tried.22 It is cogent to mention that a mere mathematical reckoning of the time involved is not
determinant of the concept.23
The consolidation of the cases against Delos Angeles, Jr., et al. was ordered obviously to obtain
expeditious justice for the parties with the least cost and vexation to them. Inasmuch as the cases
filed involved similar or related questions to be dealt with during the preliminary investigation,
the Secretary of Justice rightly found the consolidation of the cases to be the most feasible means
of promoting the efficient use of public resources and of having a comprehensive investigation of
the cases.
On the other hand, we do not ignore the possibility that there would be more cases reaching the
DOJ in addition to those already brought by petitioners and other parties. Yet, any delays in
petitioners’ cases occasioned by such other and subsequent cases should not warrant the
invalidation of DO No. 182. The Constitution prohibits only the delays that are unreasonable,
arbitrary and oppressive, and tend to render rights nugatory.24 In fine, we see neither undue
delays, nor any violation of the right of petitioners to the speedy disposition of their cases.
Sixthly, petitioners assert that the assailed issuances should cover only future cases against Delos
Angeles, Jr., et al., not those already being investigated. They maintain that DO No. 182 was
issued in violation of the prohibition against passing laws with retroactive effect.
Petitioners’ assertion is baseless.
As a general rule, laws shall have no retroactive effect. However, exceptions exist, and one such
exception concerns a law that is procedural in nature. The reason is that a remedial statute or a
statute relating to remedies or modes of procedure does not create new rights or take away vested
rights but only operates in furtherance of the remedy or the confirmation of already existing
rights.25 A statute or rule regulating the procedure of the courts will be construed as applicable to
actions pending and undetermined at the time of its passage. All procedural laws are retroactive
in that sense and to that extent. The retroactive application is not violative of any right of a
person who may feel adversely affected, for, verily, no vested right generally attaches to or arises
from procedural laws.
Finally, petitioners have averred but failed to establish that DO No. 182 constituted obstruction
of justice. This ground of the petition, being unsubstantiated, was unfounded.
Nonetheless, it is not amiss to reiterate that the authority of the Secretary of Justice to assume
jurisdiction over matters involving the investigation of crimes and the prosecution of offenders is
fully sanctioned by law. Towards that end, the Secretary of Justice exercises control and
supervision over all the regional, provincial, and city prosecutors of the country; has broad
discretion in the discharge of the DOJ’s functions; and administers the DOJ and its adjunct
offices and agencies by promulgating rules and regulations to carry out their objectives, policies
and functions.
Consequently, unless and until the Secretary of Justice acts beyond the bounds of his authority,
or arbitrarily, or whimsically, or oppressively, any person or entity who may feel to be thereby
aggrieved or adversely affected should have no right to call for the invalidation or nullification of
the rules and regulations issued by, as well as other actions taken by the Secretary of Justice.
WHEREFORE, the Court DISMISSES the omnibus petition for certiorari, prohibition, and
mandamus for lack of merit.
Petitioners shall pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice





Associate Justice
CERTIFICATION

Chief Justice
Footnotes
1
Rollo, pp. 7 and 19.
2
Id. at 18.
3
Id. at 19.
4
Heirs of Bertuldo Hinog v. Melicor, G.R. No. 140954, April 12, 2005, 455 SCRA 460,
470.
5
G.R. No. 159508, August 29, 2012.
6
This rule has been amended, first by A.M. No. 00-2-03-SC (Re: Amendment to Section
4, Rule 65 of the 1997 Rules of Civil Procedure) to specify that the 60-day period within
which to file the petition starts to run from receipt of notice of the denial of the motion
for reconsideration, if one is filed (effective September 1, 2000); and by A.M. No. 07-7-
12-SC, to add the last paragraph (effective December 27, 2007).
7
Section 1, Rule 65, Rules of Court; Pilipino Telephone Corporation v. Radiomarine
Network, Inc., G.R. No. 152092, August 4, 2010, 626 SCRA 702, 735.
8
G.R. No. 153852, October 24, 2012.
9
Acuzar v. Jorolan, G.R. No. 177878, April 7, 2010, 617 SCRA 519, 527-528.
10
G.R. No. 143375, July 6, 2001, 360 SCRA 618.
11
Id. at 623.
12
13
University of San Agustin, Inc. v. Court of Appeals, G.R. No. 100588, March 7, 1994,
230 SCRA 761, 771-772.
14
G.R. No. 166715, August 14, 2008, 562 SCRA 251.
15
Id. at 288-289.
16
Section 1, Chapter I, Title III, Book IV, Executive Order No. 292.
17
Rollo, p. 11.
18
Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010, 613 SCRA
385, 414; citing The Philippine Judges Association v. Prado, G.R. No. 105371,
November 11, 1993, 227 SCRA 703, 712.
19
E.g., Ang Ladlad LGBT Party v. Commission on Elections, G.R. No. 190582, April 8,
2010, 618 SCRA 32, 63.
20
Rollo, p. 13.
21
G.R. No. 154155, August 6, 2008, 561 SCRA 135, 146.
22
Yulo v. People, G.R. No. 142762, March 4, 2005, 452 SCRA 705, 710.
23
See Bernat v. Sandiganbayan, G.R. No. 158018, May 20, 2004, 428 SCRA 787, 789.
24
Caballero v. Alfonso, Jr., G.R. No. L-45647, August 21, 1987, 153 SCRA 153, 163.
25
Systems Factors Corporation v. National Labor Relations Commission, G.R. No.
143789, November 27, 2000, 346 SCRA 149, 152; Gregorio vs. Court of Appeals, No. L-
22802, November 29, 1968, 26 SCRA 229; Tinio vs. Mina, No. L-29488, December 24,
1968, 26 SCRA 512; Billiones vs. Court of Industrial Relations, No. L-17566, July 30,
1965, 14 SCRA 674.
SUPREME COURT
Manila
EN BANC
G.R. No. 188635 January 29, 2013
BRENDA L. NAZARETH, REGIONAL DIRECTOR, DEPARTMENT OF SCIENCE

AND TECHNOLOGY, REGIONAL OFFICE NO. IX, ZAMBOANGA CITY, Petitioner,
vs.
THE HON. REYNALDO A. VILLAR, HON. JUANITO G. ESPINO, JR.,
(COMMISSIONERS OF THE COMMISSION ON AUDIT), and DIR. KHEM M. INOK,
Respondents.
DECISION
BERSAMIN, J.:
No money shall be paid out of the Treasury except in pursuance of an appropriation made by
law.1 A violation of this constitutional edict warrants the disallowance of the payment. However,
the refund of the disallowed payment of a benefit granted by law to a covered person, agency or
office of the Government may be barred by the good faith of the approving official and of the
recipient.
Being assailed by petition for certiorari on the ground of its being issued with grave abuse of
discretion amounting to lack or excess of jurisdiction is the decision rendered on June 4, 2009 by
the Commission on Audit (COA) in COA Case No. 2009-045 entitled Petition of Ms. Brenda L.
Nazareth, Regional Director, Department of Science and Technology, Regional Office No. IX,
Zamboanga City, for review of Legal and Adjudication Office (LAO)-National Decision No.
2005-308 dated September 15, 2005 and LAO-National Resolution No. 2006-308A dated May
12, 2006 on disallowances of subsistence, laundry, hazard and other benefits in the total amount
of P3,591,130.36,2 affirming the issuance of notices of disallowance (NDs) by the Audit Team
Leader of COA Regional Office No. IX in Zamboanga City against the payment of benefits to
covered officials and employees of the Department of Science and Technology (DOST) for
calendar year (CY) 2001 out of the savings of the DOST.
The petitioner DOST Regional Director hereby seeks to declare the decision dated June 4, 2009
"null and void," and prays for the lifting of the disallowance of the payment of the benefits for
CY2001 for being within the ambit of Republic Act No. 8439 (R.A. No. 8439), otherwise known
as the Magna Carta for Scientists, Engineers, Researchers, and other Science and Technology
Personnel in the Government (Magna Carta, for short), and on the strength of the Memorandum
of Executive Secretary Ronaldo B. Zamora dated April 12, 2000 authorizing the use of the
savings for the purpose.
Antecedents
On December 22, 1997, Congress enacted R.A. No. 8439 to address the policy of the State to
provide a program for human resources development in science and technology in order to
achieve and maintain the necessary reservoir of talent and manpower that would sustain the drive
for total science and technology mastery.3 Section 7 of R.A. No. 8439 grants the following
additional allowances and benefits (Magna Carta benefits) to the covered officials and employees
of the DOST, to wit:
(a) Honorarium. - S & T personnel who rendered services beyond the established
irregular workload of scientists, technologists, researchers and technicians whose broad
and superior knowledge, expertise or professional standing in a specific field contributes
to productivity and innovativeness shall be entitled to receive honorarium subject to rules
to be set by the Department;
(b) Share in royalties. - S & T scientists, engineers, researchers and other S & T
personnel shall be entitled to receive share in royalties subject to guidelines of the
Department. The share in royalties shall be on a sixty percent-forty percent (60%-40%)
basis in favor of the Government and the personnel involved in the technology/ activity
which has been produced or undertaken during the regular performance of their
functions. For the purpose of this Act, share in royalties shall be defined as a share in the
proceeds of royalty payments arising from patents, copyrights and other intellectual
property rights;
If the researcher works with a private company and the program of activities to be
undertaken has been mutually agreed upon by the parties concerned, any royalty arising
therefrom shall be divided according to the equity share in the research project;
(c) Hazard allowance. - S & T personnel involved in hazardous undertakings or assigned

in hazardous workplaces, shall be paid hazard allowances ranging from ten (10%) to
thirty (30%) percent of their monthly basic salary depending on the nature and extent of
the hazard involved. The following shall be considered hazardous workplaces:
(1) Radiation-exposed laboratories and service workshops;
(2) Remote/depressed areas;
(3) Areas declared under a state of calamity or emergency;
(4) Strife-torn or embattled areas;
(5) Laboratories and other disease-infested areas.
(d) Subsistence allowance. - S & T personnel shall be entitled to full subsistence

allowance equivalent to three (3) meals a day, which may be computed and implemented
in accordance with the criteria to be provided in the implementing rules and regulations.
Those assigned out of their regular work stations shall be entitled to per diem in place of
the allowance;
(e) Laundry allowance. - S & T personnel who are required to wear a prescribed uniform
during office hours shall be entitled to a laundry allowance of not less than One hundred
fifty pesos (P150.00) a month;
(f) Housing and quarter allowance. - S & T personnel who are on duty in laboratories,
research and development centers and other government facilities shall be entitled to free
living quarters within the government facility where they are stationed: Provided, That
the personnel have their residence outside of the fifty (50)-kilometer radius from such
government facility;
(g) Longevity pay. - A monthly longevity pay equivalent to five percent (5%) of the
monthly basic salary shall be paid to S & T personnel for every five (5) years of
continuous and meritorious service as determined by the Secretary of the Department;
and
(h) Medical examination. - During the tenure of their employment, S & T personnel shall
be given a compulsory free medical examination once a year and immunization as the
case may warrant. The medical examination shall include:
(1) Complete physical examination;
(2) Routine laboratory, Chest X-ray and ECG;
(3) Psychometric examination;
(4) Dental examination;
(5) Other indicated examination.
Under R.A. No. 8439, the funds for the payment of the Magna Carta benefits are to be
appropriated by the General Appropriations Act (GAA) of the year following the enactment of
R.A. No. 8439.4
The DOST Regional Office No. IX in Zamboanga City released the Magna Carta benefits to the
covered officials and employees commencing in CY 1998 despite the absence of specific
appropriation for the purpose in the GAA. Subsequently, following the post-audit conducted by
COA State Auditor Ramon E. Vargas on April 23, 1999, October 28, 1999, June 20, 2000,
February 27, 2001, June 27, 2001, October 10, 2001 and October 17, 2001, several NDs were
issued disapproving the payment of the Magna Carta benefits. The justifications for the
disallowance were stated in the post-audit report, as follows:
a) ND Nos. 99-001-101 (98) to 99-105-101 (98) Payment of Subsistence and Laundry

Allowances and Hazard Pay for the months of February-November 1998 – The State
Auditor claims that no funds were appropriated in the 1998 General Appropriations Act
for the said purpose notwithstanding the effectivity of the Magna Carta, providing for
payment of allowances and benefits, among others, to Science and Technology Personnel
in the Government;
b) ND Nos. 2000-101-101 (99) to 2000-010-101 (99) Payment of Subsistence and

Laundry Allowances and Hazard Pay for the months of January-June 1999 – The State
Auditor claims that no Department of Budget and Management (DBM) and Civil Service
Commission (CSC) guidelines were issued by the said Departments on the payment
thereof;
c) ND Nos. 2001-001-101 (00) to 2001-013-101 (00) Payment of Subsistence and

Laundry Allowances, Hazard Pay and Health Care Program for the month of October
1999 and January-September 2000 – The State Auditor claims that there was no basis for
the payment of the said allowances because the President vetoed provisions of the
General Appropriations Act (GAA) regarding the use of savings for the payment of
benefits;
d) ND Nos. 2001-014-101(00) to 2001-025-101 (00) Payment of Subsistence and

Laundry Allowances, Hazard Pay and Medical Benefits for the months of January-
October 2001 – The provision for the use of savings in the General Appropriations Act
(GAA) was vetoed by the
President; hence, there was no basis for the payment of the aforesaid allowances or benefits
according to the State Auditor.5
The disallowance by the COA prompted then DOST Secretary Dr. Filemon Uriarte, Jr. to request
the Office of the President (OP) through his
Memorandum dated April 3, 2000 (Request for Authority to Use Savings for the Payment of
Magna Carta Benefits as provided for in R.A. 8439) for the authority to utilize the DOST’s
savings to pay the Magna Carta benefits.6 The salient portions of the Memorandum of Secretary
Uriarte, Jr. explained the request in the following manner:
x x x. However, the amount necessary for its full implementation had not been provided in the
General Appropriations Act (GAA). Since the Act’s effectivity, the Department had paid the
1998 MC benefits out of its current year’s savings as provided for in the Budget Issuances of the
Department of Budget and Management while the 1999 MC benefits were likewise sourced from
the year’s savings as authorized in the 1999 GAA.
The 2000 GAA has no provision for the use of savings. The Department, therefore, cannot
continue the payment of the Magna Carta benefits from its 2000 savings. x x x. The DOST
personnel are looking forward to His Excellency’s favorable consideration for the payment of
said MC benefits, being part of the administration’s 10-point action program to quote "I will
order immediate implementation of RA 8439 (the Magna Carta for Science and Technology
Personnel in Government)" as published in the Manila Bulletin dated May 20, 1998.
Through the Memorandum dated April 12, 2000, then Executive Secretary Ronaldo Zamora,
acting by authority of the President, approved the request of Secretary Uriarte, Jr.,7 viz:
With reference to your Memorandum dated April 03, 2000 requesting authority to use savings
from the appropriations of that Department and its agencies for the payment of Magna Carta
Benefits as provided for in R.A. 8439, please be informed that the said request is hereby
approved.
On July 28, 2003, the petitioner, in her capacity as the DOST Regional Director in Region IX,
lodged an appeal with COA Regional Cluster Director Ellen Sescon, urging the lifting of the
disallowance of the Magna Carta benefits for the period covering CY 1998 to CY 2001
amounting to P4,363,997.47. She anchored her appeal on the April 12, 2000 Memorandum of
Executive Secretary Zamora, and cited the provision in the GAA of 1998,8 to wit:
Section 56. Priority in the Use of Savings.– In the use of savings, priority shall be given to the
augmentation of the amounts set aside for compensation, bonus, retirement gratuity, terminal
leave, old age pension of veterans and other personnel benefits authorized by law and those
expenditure items authorized in agency Special Provisions and in Sec. 16 and in other sections of
the General Provisions of this Act.9
In support of her appeal, the petitioner contended that the DOST Regional Office had
"considered the subsistence and laundry allowance as falling into the category ‘other personnel
benefits authorized by law,’ hence the payment of such allowances were charged to account 100-
900 for Other Benefits (Honoraria), which was declared to be the savings of our Office."10 She
argued that the April 12, 2000 Memorandum of Executive Secretary Zamora not only ratified the
payment of the Magna Carta benefits out of the savings for CY 1998 and CY 1999 and allowed
the use of the savings for CY 2000, but also operated as a continuing endorsement of the use of
savings to cover the Magna Carta benefits in succeeding calendar years.
The appeal was referred to the Regional Legal and Adjudication Director (RLAD), COA
Regional Office IX in Zamboanga City, which denied the appeal and affirmed the grounds stated
in the NDs.
Not satisfied with the result, the petitioner elevated the matter to the COA Legal and
Adjudication Office in Quezon City
On September 15, 2005, respondent Director Khem N. Inok of the COA Legal and Adjudication
Office rendered a decision in LAO-N-2005-308,11 denying the petitioner’s appeal with the
modification that only the NDs covering the Magna Carta benefits for CY 2000 were to be set
aside in view of the authorization under the Memorandum of April 12, 2000 issued by Executive
Secretary Zamora as the alter ego of the President. The decision explained itself as follows:
In resolving the case, the following issues should first be resolved:
1. Whether or not the "approval" made by the Executive Secretary on April 12, 2000 on
the request for authority to use savings of the agency to pay the benefits, was valid; and
2. Whether or not the payments of the benefits made by the agency using its savings for
the years 1998 and 1999 based on Section 56 of RA 8522 (General Appropriations Act of
1998 [GAA]) were legal and valid.
Anent the first issue, the law in point is Article VI, Section 25(5) of the 1987 Constitution, which
aptly provides that:
"(5) No law shall be passed authorizing any transfer of appropriations, however, the
PRESIDENT, x x x may by law, be authorized to augment any item in the general appropriations
law for their respective offices from savings in other items of their respective appropriations."
Simply put, it means that only the President has the power to augment savings from one item to
another in the budget of administrative agencies under his control and supervision. This is the
very reason why the President vetoed the Special Provisions in the 1998 GAA that would
authorize the department heads to use savings to augment other items of appropriations within
the Executive Branch. Such power could well be extended to his Cabinet Secretaries as alter egos
under the "doctrine of qualified political agency" enunciated by the Supreme Court in the case of
Binamira v. Garrucho, 188 SCRA 154, where it was pronounced that the official acts of a
Department Secretary are deemed acts of the President unless disapproved or reprobated by the
latter. Thus, in the instant case, the authority granted to the DOST by the Executive Secretary,
being one of the alter egos of the President, was legal and valid but in so far as the use of
agency’s savings for the year 2000 only. Although 2000 budget was reenacted in 2001, the
authority granted on the use of savings did not necessarily extend to the succeeding year.
On the second issue, the payments of benefits made by the agency in 1998 and 1999 were
admittedly premised on the provisions of the General Appropriations Acts (GAA) for CY 1998
and 1999 regarding the use of savings which states that:
"In the use of savings, priority shall be given to the augmentation of the amount set aside for
compensation, bonus, retirement gratuity, terminal leave, old age pensions of veterans and other
personal benefits x x x." (Underscoring ours.)
It can be noted, however, that augmentation was likewise a requisite to make payments for such
benefits which means that Presidential approval was necessary in accordance with the above-
cited provision of the 1987 Constitution. Therefore, the acts of the agency in using its savings to
pay the said benefits without the said presidential approval were illegal considering that during
those years there was no appropriations provided in the GAA to pay such benefits.
Further, COA Decision Nos. 2003-060 dated March 18, 2003 and 2002-022 dated January 11,
2002, where this Commission lifted the DOST disallowance on the payments of similar benefits
in 1992 to 1995, can not be applied in the instant case. The disallowances therein dealt more on
the classification of the agency as health related or not while the instant case deals mainly on the
availability of appropriated funds for the benefits under RA 8439 and the guidelines for their
payments.
Likewise, the certification of the DOST Secretary declaring work areas of S and T personnel as
hazardous for purposes of entitlement to hazard allowance is not valid and may be considered as
self-serving. Under RA 7305 and its Implementing Rules and Regulation[s] (Magna Carta of
Public Health Workers), the determination which agencies are considered health-related
establishments is within the competence of the Secretary of Health which was used by this
Commission in COA Decision No. 2003-060, supra, to wit:
xxxx
"It bears emphasis to state herein that it is within the competence of the Secretary of Health as
mandated by RA 7305 and its IRR to determine which agencies are health-related
establishments. Corollary thereto, the certifications dated October 10, 1994 issued by then DOH
Secretary Juan M. Flavier that certain DOST personnel identified by DOST Secretary Padolina
in his letter dated September 29, 1994 to be engaged in health and health-related work and that of
Secretary Hilarion J. Ramiro dated December 12, 1996 confirming the staff and personnel of the
DOST and its attached agencies to be engaged in health-related work and further certified to be a
health-related establishment were sufficient basis for reconsideration of the disallowance on
subsistence and laundry allowances paid for 1992, 1993 and 1995."
xxxx
Assuming that the situation in the DOST and its attached agencies did not change as to consider
it health-related establishment for its entitlement to magna carta benefits, still the payments of
the benefits cannot be sustained in audit not only for lack of said certification from the Secretary
of Department of Health for the years 1998 and 1999 but more importantly, for lack of funding.
WHEREFORE, premises considered, the herein Appeal is DENIED with modification. NDs
Nos. 2001-001-101 (00) to 2001-013-101 (00) issued for the payments of benefits for CY 2000
are hereby SET ASIDE while NDs pertaining to benefits paid for CY 1998, 1999 and 2001 shall
STAY.
On December 1, 2005, the petitioner filed her motion for reconsideration in the COA Legal and
Adjudication Office-National in Quezon City.
By resolution dated May 12, 2006,12 the COA Legal and Adjudication Office-National denied
the motion for reconsideration.
Thence, the petitioner filed a petition for review in the COA Head Office, insisting that the
payment of Magna Carta benefits to qualified DOST Regional Office No. IX officials and
employees had been allowed under R.A. No. 8349.
On June 4, 2009, the COA rendered the assailed decision, further modifying the decision of
respondent Director Inok by also lifting and setting aside the NDs covering the Magna Carta
benefits for CY 1998 and CY 1999 for the same reason applicable to the lifting of the NDs for
CY 2000, but maintaining the disallowance of the benefits for CY 2001 on the ground that they
were not covered by the authorization granted by the Memorandum of April 12, 2000 of
Executive Secretary Zamora.
The pertinent portions of the decision are quoted below, to wit:
Hence, the appellant filed the instant petition for review with the main argument that the
payment of Magna Carta benefits to qualified DOST Regional Office No. IX employees is
allowed pursuant to RA No. 8439.
ISSUE
The sole issue to be resolved is whether or not the payment of Magna Carta benefits for CYs
1998, 1999 and 2001 is valid and legal.
DISCUSSION
It is clear that the funds utilized for the payment of the Magna Carta benefits came from the
savings of the agency. The approval by the Executive Secretary of the request for authority to
use the said savings for payments of the benefits was an affirmation that the payments were
authorized. The Memorandum dated April 3, 2000 of the DOST Secretary requested for the
approval of the payment out of savings of the CY 2000 benefits. Likewise, the same
Memorandum mentioned the 1998 Magna Carta benefits which were paid out of its current
year’s savings as provided for in the budget issuances of the DBM and the 1999 Magna Carta
benefits which were sourced from the year’s savings as authorized in the 1999 GAA. When such
memorandum request was approved by the Executive Secretary in a Memorandum dated April
12, 2000, it was clear that the approval covered the periods stated in the request, which were the
1998, 1999 and 2000 Magna Carta benefits.
Thus, this Commission hereby affirms LAO-National Decision No. 2005-308 dated September
15, 2005 which lifted ND Nos. 2001-001-101 (00) to 2001-013-101 (00) for the payments of
Magna Carta benefits for CY 2000 and which sustained the NDs for payments in 2001.
However, for the disallowances covering payments in 1998 and 1999, this Commission is
inclined to lift the same. This is in view of the approval made by the Executive Secretary for the
agency to use its savings to pay the benefits for the years covered. Thus, when the Executive
Secretary granted the request of the DOST Secretary for the payment of the Magna Carta
benefits to its qualified personnel, the said payments became lawful for the periods covered in
the request, that is, CYs 1998, 1999 and 2000. Since the Magna Carta benefits paid in 2001 were
not covered by the approval, the same were correctly disallowed in audit.
In a previous COA Decision-No. 2006-015 dated January 31, 2006, the payment of hazard,
subsistence and laundry allowances given to personnel of the DOST, Regional Office No. VI,
Iloilo City, was granted. The same decision also stated that in (sic) no doubt the DOST
personnel, who are qualified, are entitled to receive the Magna Carta benefits. The 1999 GAA
did not prohibit the grant of these benefits but merely emphasized the discretion of the agency
head, upon authority of the President, to use savings from the Department’s appropriation, to
implement the payment of benefits pursuant to the DOST Charter.
RULING
WHEREFORE, premises considered, the instant appeal on the payment of Magna Carta benefits
for CYs 1998 and 1999 which were disallowed in ND Nos. 99-001-101 (98) to 99-015-101 (98)
and 2000-001-101 (99) to 2000-010-101 (99), is hereby GRANTED. Likewise, the lifting of ND
Nos. 2001-001-101 (00) to 2001-013-101 (00) as embodied in LAO-National Decision No.
2005-308 dated September 15, 2005 is hereby CONFIRMED. While the disallowances on the
payment of said benefits for 2001 as covered by ND Nos. 2001-014-101 (01) to 2001-032-101
(01) are hereby AFFIRMED.
Issues
Hence, this special civil action for certiorari, with the petitioner insisting that the COA gravely
abused its discretion amounting to lack or excess of jurisdiction in affirming the disallowance of
the Magna Carta benefits for CY 2001 despite the provisions of R.A. No. 8439, and in ruling that
the Memorandum of April 12, 2000 did not cover the payment of the Magna Carta benefits for
CY 2001.
Did the COA commit grave abuse of discretion in issuing ND No. 2001-014-101(01) to ND No.
2001-032-101(01)?
Ruling
R. A. No. 8439 was enacted as a manifestation of the State’s recognition of science and
technology as an essential component for the attainment of national development and progress.
The law offers a program of human resources development in science and technology to help
realize and maintain a sufficient pool of talent and manpower that will sustain the initiative for
total science and technology mastery. In furtherance of this objective, the law not only ensures
scholarship programs and improved science and engineering education, but also affords
incentives for those pursuing careers in science and technology. Moreover, the salary scale of
science and technology personnel is differentiated by R. A. No. 8439 from the salary scales of
government employees under the existing law.
As earlier mentioned, Section 7 of R. A. No. 8439 confers the Magna Carta benefits consisting of
additional allowances and benefits to DOST officers and employees, such as honorarium, share
in royalties, hazard, subsistence, laundry, and housing and quarter allowances, longevity pay, and
medical examination. But the Magna Carta benefits will remain merely paper benefits without
the corresponding allocation of funds in the GAA.
The petitioner urges the Court to treat the authority granted in the April 12, 2000 Memorandum
of Executive Secretary Zamora as a continuing authorization to use the DOST’s savings to pay
the Magna Carta benefits.
We cannot agree with the petitioner.

The April 12, 2000 Memorandum was not a blanket authority from the OP to pay the benefits out
of the DOST’s savings. Although the Memorandum was silent as to the period covered by the
request for authority to use the DOST’s savings, it was clear just the same that the Memorandum
encompassed only CY 1998, CY 1999 and CY 2000. The limitation of its applicability to those
calendar years was based on the tenor of the request of Secretary Uriarte, Jr. to the effect that the
DOST had previously used its savings to pay the Magna Carta benefits in CY 1998 and CY
1999; that the 2000 GAA did not provide for the use of savings; and that the DOST personnel
were looking forward to the President’s favorable consideration. The Memorandum could only
be read as an authority covering the limited period until and inclusive of CY 2000. The text of
the Memorandum was also bereft of any indication that the authorization was to be indefinitely
extended to any calendar year beyond CY 2000.
As we see it, the COA correctly ruled on the matter at hand. Article VI Section 29 (1) of the
1987 Constitution firmly declares that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law." This constitutional edict requires that the GAA be
purposeful, deliberate, and precise in its provisions and stipulations. As such, the requirement
under Section 2013 of R.A. No. 8439 that the amounts needed to fund the Magna Carta benefits
were to be appropriated by the GAA only meant that such funding must be purposefully,
deliberately, and precisely included in the GAA. The funding for the Magna Carta benefits
would not materialize as a matter of course simply by fiat of R.A. No. 8439, but must initially be
proposed by the officials of the DOST as the concerned agency for submission to and
consideration by Congress. That process is what complies with the constitutional edict. R.A. No.
8439 alone could not fund the payment of the benefits because the GAA did not mirror every
provision of law that referred to it as the source of funding. It is worthy to note that the DOST
itself acknowledged the absolute need for the appropriation in the GAA. Otherwise, Secretary
Uriarte, Jr. would not have needed to request the OP for the express authority to use the savings
to pay the Magna Carta benefits.
In the funding of current activities, projects, and programs, the general rule should still be that
the budgetary amount contained in the appropriations bill is the extent Congress will determine
as sufficient for the budgetary allocation for the proponent agency. The only exception is found
in Section 25 (5),14 Article VI of the Constitution, by which the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and
the heads of Constitutional Commissions are authorized to transfer appropriations to augment
any item in the GAA for their respective offices from the savings in other items of their
respective appropriations. The plain language of the constitutional restriction leaves no room for
the petitioner’s posture, which we should now dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named in Section 25(5),
Article VI of the Constitution limiting the authority to transfer savings only to augment another
item in the GAA is strictly but reasonably construed as exclusive. As the Court has expounded in
Lokin, Jr. v. Commission on Elections:15
accords with reason and justice.
construction.
The claim of the petitioner that the payment of the 2001 Magna Carta benefits was upon the
authorization extended by the OP through the 12 April 2000 Memorandum of Executive
Secretary Zamora was outrightly bereft of legal basis. In so saying, she inexplicably, but self-
servingly, ignored the important provisions in the 2000 GAA on the use of savings, to wit:
Sec. 54. Use of Savings. The President of the Philippines, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions under Article IX of the Constitution, the Ombudsman and the
Chairman of the Commission on Human Rights are hereby authorized to augment any item in
this Act for their respective offices from savings in other items of their respective appropriations.
Sec. 55. Meaning of Savings and Augmentation. Savings refer to portions or balances of any
programmed appropriation in this Act free of any obligation or encumbrance still available after
the completion or final discontinuance or abandonment of the work, activity or purpose for
which the appropriation is authorized, or arising from unpaid compensation and related costs
pertaining to vacant positions and leaves of absence without pay.
Augmentation implies the existence in this Act of an item, project, activity or purpose with an
appropriation which upon implementation or subsequent evaluation of needed resources is
determined to be deficient. In no case, therefore, shall a non-existent item, project, activity,
purpose or object of expenditure be funded by augmentation from savings or by the use of
appropriations authorized otherwise in this Act. (Bold emphases added)
Under these provisions, the authority granted to the President was subject to two essential
requisites in order that a transfer of appropriation from the agency’s savings would be validly
effected. The first required that there must be savings from the authorized appropriation of the
agency. The second demanded that there must be an existing item, project, activity, purpose or
object of expenditure with an appropriation to which the savings would be transferred for
augmentation purposes only.
At any rate, the proposition of the petitioner that savings could and should be presumed from the
mere transfer of funds is plainly incompatible with the doctrine laid down in Demetria v. Alba,16
in which the petition challenged the constitutionality of paragraph 1 of Section 4417 of
Presidential Decree No. 1177 (Budget Reform Decree of 1977) in view of the express
prohibition contained in Section 16(5)18 of Article VIII of the 1973 Constitution against the
transfer of appropriations except to augment out of savings,19 with the Court declaring the
questioned provision of Presidential Decree No. 1177 "null and void for being unconstitutional"
upon the following reasoning, to wit:
The prohibition to transfer an appropriation for one item to another was explicit and categorical
under the 1973 Constitution. However, to afford the heads of the different branches of the
government and those of the constitutional commissions considerable flexibility in the use of
public funds and resources, the constitution allowed the enactment of a law authorizing the
transfer of funds for the purpose of augmenting an item from savings in another item in the
appropriation of the government branch or constitutional body concerned. The leeway granted
was thus limited. The purpose and conditions for which funds may be transferred were specified,
i.e., transfer may be allowed for the purpose of augmenting an item and such transfer may be
made only if there are savings from another item in the appropriation of the government branch
or constitutional body.
Paragraph 1 of Section 44 of P.D. No. 1177 unduly overextends the privilege granted under said
Section 16(5). It empowers the President to indiscriminately transfer funds from one department,
bureau, office or agency of the Executive Department to any program, project, or activity of any
department, bureau or office included in the General Appropriations Act or approved after its
enactment, without regard as to whether or not the funds to be transferred are actually savings in
the item from which the same are to be taken, or whether or not the transfer is for the purpose of
augmenting the item to which said transfer is to be made. It does not only completely disregard
the standards set in the fundamental law, thereby amounting to an undue delegation of legislative
powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render
the provision in question null and void.
Clearly and indubitably, the prohibition against the transfer of appropriations is the general rule.
Consequently, the payment of the Magna Carta benefits for CY 2001 without a specific item or
provision in the GAA and without due authority from the President to utilize the DOST’s savings
in other items for the purpose was repugnant to R.A. No. 8439, the Constitution, and the re-
enacted GAA for 2001.
The COA is endowed with sufficient latitude to determine, prevent, and disallow the irregular,
unnecessary, excessive, extravagant, or unconscionable expenditures of government funds. It has
the power to ascertain whether public funds were utilized for the purposes for which they had
been intended by law. The "Constitution has made the COA the guardian of public funds, vesting
it with broad powers over all accounts pertaining to government revenue and expenditures and
the uses of public funds and property, including the exclusive authority to define the scope of its
audit and examination, to establish the techniques and methods for such review, and to
promulgate accounting and auditing rules and regulations".20
Thus, the COA is generally accorded complete discretion in the exercise of its constitutional duty
and responsibility to examine and audit expenditures of public funds, particularly those which
are perceptibly beyond what is sanctioned by law. Verily, the Court has sustained the decisions
of administrative authorities like the COA as a matter of general policy, not only on the basis of
the doctrine of separation of powers but also upon the recognition that such administrative
authorities held the expertise as to the laws they are entrusted to enforce.21 The Court has
accorded not only respect but also finality to their findings especially when their decisions are
not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion.22
Only when the COA has acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, may the Court entertain and grant a
petition for certiorari brought to assail its actions.23 Section 1 of Rule 65,24 Rules of Court,
demands that the petitioner must show that, one, the tribunal, board or officer exercising judicial
or quasi-judicial functions acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and, two, there is neither an appeal nor any
plain, speedy and adequate remedy in the ordinary course of law for the purpose of amending or
nullifying the proceeding. Inasmuch as the sole office of the writ of certiorari is the correction of
errors of jurisdiction, which includes the commission of grave abuse of discretion amounting to
lack of jurisdiction, the petitioner should establish that the COA gravely abused its discretion.
The abuse of discretion must be grave, which means either that the judicial or quasi-judicial
power was exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, or that the respondent judge, tribunal or board evaded a positive duty, or virtually
refused to perform the duty enjoined or to act in contemplation of law, such as when such judge,
tribunal or board exercising judicial or quasi-judicial powers acted in a capricious or whimsical
manner as to be equivalent to lack of jurisdiction.25 Mere abuse of discretion is not enough to
warrant the issuance of the writ.26
The petitioner dismally failed to discharge her burden.1âwphi1 We conclude and declare,
therefore, that the COA’s assailed decision was issued in steadfast compliance of its duty under
the Constitution and in the judicious exercise of its general audit power conferred to it by the
Constitution.
Nonetheless, the Court opines that the DOST officials who caused the payment of the Magna
Carta benefits to the covered officials and employees acted in good faith in the honest belief that
there was a firm legal basis for the payment of the benefits. Evincing their good faith even after
receiving the NDs from the COA was their taking the initiative of earnestly requesting the OP for
the authorization to use the DOST’s savings to pay the Magna Carta benefits. On their part, the
DOST covered officials and employees received the benefits because they considered themselves
rightfully deserving of the benefits under the long-awaited law.
The Court declares and holds that the disallowed benefits received in good faith need not be
reimbursed to the Government. This accords with consistent pronouncements of the Court, like
that issued in De Jesus v. Commission on Audit,27 to wit:
Nevertheless, our pronouncement in Blaquera v. Alcala28 supports petitioners’ position on the

refund of the benefits they received. In Blaquera, the officials and employees of several
government departments and agencies were paid incentive benefits which the COA disallowed
on the ground that Administrative Order No. 29 dated 19 January 1993 prohibited payment of
these benefits. While the Court sustained the COA on the disallowance, it nevertheless declared
that:
Considering, however, that all the parties here acted in good faith, we cannot countenance the
refund of subject incentive benefits for the year 1992, which amounts the petitioners have
already received. Indeed, no indicia of bad faith can be detected under the attendant facts and
circumstances. The officials and chiefs of offices concerned disbursed such incentive benefits in
the honest belief that the amounts given were due to the recipients and the latter accepted the
same with gratitude, confident that they richly deserve such benefits.
This ruling in Blaquera applies to the instant case. Petitioners here received the additional
allowances and bonuses in good faith under the honest belief that LWUA Board Resolution No.
313 authorized such payment. At the time pet1t10ners received the additional allowances and
bonuses, the Court had not yet decided Baybay Water District v. Commission on Audit.29
Petitioners had no knowledge that such payment was without legal basis. Thus, being in good
faith, petitioners need not refund the allowances and bonuses they received but disallowed by the
COA.
Also, in Veloso v. Commission on Audit30 the Court, relying on a slew of jurisprudence31 ruled
that the recipients of the disallowed retirement and gratuity pay remuneration need not refund
whatever they had received:
x x x because all the parties acted in good faith. In this case, the questioned disbursement was
made pursuant to an ordinance enacted as early as December 7, 2000 although deemed approved
only on August 22, 2002. The city officials disbursed the retirement and gratuity pay
remuneration in the honest belief that the amounts given were due to the recipients and the latter
accepted the same with gratitude, confident that they richly deserve such reward.
WHEREFORE, the Court DISMISSES the petition for certiorari for lack of merit; AFFIRMS the
decision issued on June 4, 2009 by the Commission Proper of the Commission on Audit in COA
Case No. 2009-045; and DECLARES that the covered officials and employees of the
Department of Science and Technology who received the Magna Carta benefits for calendar year
2001 are not required to refund the disallowed benefits received.
No pronouncement on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice


(ON LEAVE)
JOSE PORTUGAL PEREZ
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice


Associate Justice
CERTIFICATION

Chief Justice
Footnotes
1
Section 29(1), Article VI of the Constitution.
2
Rollo, pp. 18-22.
3
Section 2, RA No. 8439.
4
Section 20. Funding. - The amount necessary to fully implement this Act shall be
provided in the General Appropriations Act (GAA) of the year following its enactment
into law under the budgetary appropriations of the DOST and concerned agencies.
5
Rollo, p. 6.
6
Id. at 132-133.
7
Id. at 7.
8
Republic Act No. 8522 (An Act Appropriating Funds for the Operation of the
Government of the Republic of the Philippines from January 1 to December 31, Nineteen
Hundred and Ninety-Eight, and for Other Purposes).
9
The provision is a recurrent provision in subsequent GAAs like Republic Act No. 8745
(GAA of 1999) and Republic Act No. 8760 (GAA of 2000).
10
Rollo, p. 27.
11
Id. at 34-37.
12
Id. at 38-39.
13
Supra note 4.
14
Section 25.
xxxx
(5) No law shall be passed authorizing any transfer of appropriations; however,

the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in
the general appropriations law for their respective offices from savings in other
items of their respective appropriations.
xxxx
15
G.R. Nos. 179431-32 and 180443, June 22, 2010, 621 SCRA 385, 409-410; see also
Samson v. Court of Appeals, G.R. No. L-43182, November 25, 1986, 145 SCRA 654,
659; and Commissioner of Internal Revenue v. Court of Appeals, G.R. No. 107135,
February 23, 1999, 303 SCRA 508, 515.
16
G.R. No. L-71977, February 27, 1987, 148 SCRA 208, 214-215.
17
Paragraph 1 of Section 44 states: "The President shall have the authority to transfer any
fund, appropriated for the different departments, bureaus, offices and agencies of the
Executive Department, which are included in the General Appropriations Act, to any
program, project or activity of any department, bureau, or office included in the General
Appropriations Act or approved after its enactment."
18
Section 16. x x x
(5) No law shall be passed authorizing any transfer of appropriations; however,

the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme
Court, and the heads of constitutional commission may by law be authorized to
augment any item in the general appropriations law for their respective offices
from savings in other items of their respective appropriations.
19
Section 16(5) of Article VIII of the 1973 Constitution is similar to Section 25(5) of
Article VI of the current Constitution.
20
Yap vs. Commission on Audit, G.R. No. 158562, April 23, 2010, 619 SCRA 154, 167-
168.
21
Cuerdo v. Commission on Audit, No. L-84592, October 27, 1988, 166 SCRA 657, 661;
Tagum Doctors Enterprises v. Apsay, G.R. No. 81188, August 30, 1988, 165 SCRA 154.
22
Sanchez v. Commission on Audit, G.R. No. 127545, April 23, 2008, 552 SCRA 471,
489.
23
Reyes v. Commission on Audit, G.R. No. 125129, March 29, 1999, 305 SCRA 512,
517.
24
Section 1. Petition for certiorari. — When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction,
or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order
or resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping as provided in
the third paragraph of section 3, Rule 46. (1a)
25
Delos Santos v. Metropolitan Bank and Trust Company, G.R. No. 153852, October 24,
2012; United Coconut Planters Bank v. Looyuko, G.R. No. 156337, September 28, 2007,
534 SCRA 322, 331.
26
Tan v. Antazo, G.R. No. 187208, February 23, 2011, 644 SCRA 337, 342.
27
451 Phil. 812 (2003).
28
G.R. No. 109406, 11 September 1998, 295 SCRA 366.
29
425 Phil. 326 (2002).
30
G.R. No. 193677, September 6, 2011,656 SCRA 767,782.
31
To wit: Singson v. Commission on Audit, G.R. No. 159355, August 9, 2010,627
SCRA 36; Molen, Jr. v. Commission on Audit, 493 Phil. 874 (2005); Querubin v.
Regional Cluster Director, Legal and Adjudication Office, COA Regional Office VI,
Pavia, Iloilo City, G.R. No. 159299, July 7, 2004, 433 SCRA 769; De Jesus v.
Commission on Audit, 466 Phil. 912 (2004); Philippine International Trading
Corporation v. Commission on Audit, 461 Phil. 737 (2003).
SUPREME COURT
Manila
EN BANC
G.R. No. 191644 February 19, 2013
DENNIS A.B. FUNA, Petitioner,

vs.
CTING SECRETARY OF JUSTICE ALBERTO C. AGRA, IN HIS OFFICIAL
CONCURRENT CAPACITIES AS ACTING SECRETARY OF THE DEPARTMENT OF
JUSTICE AND AS ACTING SOLICITOR GENERAL, EXECUTIVE SECRETARY
LEANDRO R. MENDOZA, OFFICE OF THE PRESIDENT, Respondents.
DECISION
BERSAMIN, J.:
Section 13, Article VII of the 1987 Constitution expressly prohibits the President, Vice-
President, the Members of the Cabinet, and their deputies or assistants from holding any other
office or employment during their tenure unless otherwise provided in the Constitution.
Complementing the prohibition is Section 7, paragraph (2), Article IX-B of the 1987
Constitution, which bans any appointive official from holding any other office or employment in
the Government or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries, unless otherwise allowed by law or the
primary functions of his position.
These prohibitions under the Constitution are at the core of this special civil action for certiorari
and prohibition commenced on April 7, 2010 to assail the designation of respondent Hon.
Alberto C. Agra, then the Acting Secretary of Justice, as concurrently the Acting Solicitor
General.
Antecedents
The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal-Arroyo appointed
Agra as the Acting Secretary of Justice following the resignation of Secretary Agnes VST
Devanadera in order to vie for a congressional seat in Quezon Province; that on March 5, 2010,
President Arroyo designated Agra as the Acting Solicitor General in a concurrent capacity;1 that
on April 7, 2010, the petitioner, in his capacity as a taxpayer, a concerned citizen and a lawyer,
commenced this suit to challenge the constitutionality of Agra’s concurrent appointments or
designations, claiming it to be prohibited under Section 13, Article VII of the 1987 Constitution;
that during the pendency of the suit, President Benigno S. Aquino III appointed Atty. Jose
Anselmo I. Cadiz as the Solicitor General; and that Cadiz assumed as the Solicitor General and
commenced his duties as such on August 5, 2010.2
Agra renders a different version of the antecedents. He represents that on January 12, 2010, he
was then the Government Corporate Counsel when President Arroyo designated him as the
Acting Solicitor General in place of Solicitor General Devanadera who had been appointed as the
Secretary of Justice;3 that on March 5, 2010, President Arroyo designated him also as the Acting
Secretary of Justice vice Secretary Devanadera who had meanwhile tendered her resignation in
order to run for Congress representing a district in Quezon Province in the May 2010 elections;
that he then relinquished his position as the Government Corporate Counsel; and that pending the
appointment of his successor, Agra continued to perform his duties as the Acting Solicitor
General.4
Notwithstanding the conflict in the versions of the parties, the fact that Agra has admitted to
holding the two offices concurrently in acting capacities is settled, which is sufficient for
purposes of resolving the constitutional question that petitioner raises herein.
The Case
In Funa v. Ermita,5 the Court resolved a petition for certiorari, prohibition and mandamus
brought by herein petitioner assailing the constitutionality of the designation of then
Undersecretary of the Department of Transportation and Communications (DOTC) Maria Elena
H. Bautista as concurrently the Officer-in-Charge of the Maritime Industry Authority. The
petitioner has adopted here the arguments he advanced in Funa v. Ermita, and he has rested his
grounds of challenge mainly on the pronouncements in Civil Liberties Union v. Executive
Secretary6 and Public Interest Center, Inc. v. Elma.7
What may differentiate this challenge from those in the others is that the appointments being
hereby challenged were in acting or temporary capacities. Still, the petitioner submits that the
prohibition under Section 13, Article VII of the 1987 Constitution does not distinguish between
an appointment or designation of a Member of the Cabinet in an acting or temporary capacity, on
the one hand, and one in a permanent capacity, on the other hand; and that Acting Secretaries,
being nonetheless Members of the Cabinet, are not exempt from the constitutional ban. He
emphasizes that the position of the Solicitor General is not an ex officio position in relation to the
position of the Secretary of Justice, considering that the Office of the Solicitor General (OSG) is
an independent and autonomous office attached to the Department of Justice (DOJ).8 He insists
that the fact that Agra was extended an appointment as the Acting Solicitor General shows that
he did not occupy that office in an ex officio capacity because an ex officio position does not
require any further warrant or appointment.
Respondents contend, in contrast, that Agra’s concurrent designations as the Acting Secretary of
Justice and Acting Solicitor General were only in a temporary capacity, the only effect of which
was to confer additional duties to him. Thus, as the Acting Solicitor General and Acting
Secretary of Justice, Agra was not "holding" both offices in the strict constitutional sense.9 They
argue that an appointment, to be covered by the constitutional prohibition, must be regular and
permanent, instead of a mere designation.
Respondents further contend that, even on the assumption that Agra’s concurrent designation
constituted "holding of multiple offices," his continued service as the Acting Solicitor General
was akin to a hold-over; that upon Agra’s designation as the Acting Secretary of Justice, his term
as the Acting Solicitor General expired in view of the constitutional prohibition against holding
of multiple offices by the Members of the Cabinet; that under the principle of hold-over, Agra
continued his service as the Acting Solicitor General "until his successor is elected and
qualified"10 to "prevent a hiatus in the government pending the time when a successor may be
chosen and inducted into office;"11 and that during his continued service as the Acting Solicitor
General, he did not receive any salaries and emoluments from the OSG after becoming the
Acting Secretary of Justice on March 5, 2010.12
Respondents point out that the OSG’s independence and autonomy are defined by the powers
and functions conferred to that office by law, not by the person appointed to head such office;13
and that although the OSG is attached to the DOJ, the DOJ’s authority, control and supervision
over the OSG are limited only to budgetary purposes.14
In his reply, petitioner counters that there was no "prevailing special circumstance" that justified
the non-application to Agra of Section 13, Article VII of the 1987 Constitution;15 that the
temporariness of the appointment or designation is not an excuse to disregard the constitutional
ban against holding of multiple offices by the Members of the Cabinet;16 that Agra’s invocation
of the principle of hold-over is misplaced for being predicated upon an erroneous presentation of
a material fact as to the time of his designation as the Acting Solicitor General and Acting
Secretary of Justice; that Agra’s concurrent designations further violated the Administrative
Code of 1987 which mandates that the OSG shall be autonomous and independent.17
Issue
Did the designation of Agra as the Acting Secretary of Justice, concurrently with his position of
Acting Solicitor General, violate the constitutional prohibition against dual or multiple offices
for the Members of the Cabinet and their deputies and assistants?
Ruling
The petition is meritorious.
The designation of Agra as Acting Secretary of Justice concurrently with his position of Acting
Solicitor General was unconstitutional and void for being in violation of the constitutional
prohibition under Section 13, Article VII of the 1987 Constitution.
1.
Requisites of judicial review not in issue
The power of judicial review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must
have the standing to assail the validity of the subject act or issuance, that is, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement; (3) the question of constitutionality must be raised at the
earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.18
Here, the OSG does not dispute the justiciability and ripeness for consideration and resolution by
the Court of the matter raised by the petitioner. Also, the locus standi of the petitioner as a
taxpayer, a concerned citizen and a lawyer to bring a suit of this nature has already been settled
in his favor in rulings by the Court on several other public law litigations he brought. In Funa v.
Villar,19 for one, the Court has held:
To have legal standing, therefore, a suitor must show that he has sustained or will sustain a
"direct injury" as a result of a government action, or have a "material interest" in the issue
affected by the challenged official act. However, the Court has time and again acted liberally
on the locus standi requirements and has accorded certain individuals, not otherwise
directly injured, or with material interest affected, by a Government act, standing to sue
provided a constitutional issue of critical significance is at stake. The rule on locus standi is
after all a mere procedural technicality in relation to which the Court, in a catena of cases
involving a subject of transcendental import, has waived, or relaxed, thus allowing non-
traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in
the public interest, albeit they may not have been personally injured by the operation of a
law or any other government act. In David, the Court laid out the bare minimum norm
before the so-called "non-traditional suitors" may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the
tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the election
law in question;
3.) For concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of infringes
their prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has "far-reaching

implications," and there is a need to promulgate rules that will guide the bench, bar, and
the public in future analogous cases. We, thus, assume a liberal stance and allow petitioner
to institute the instant petition.20 (Bold emphasis supplied)
In Funa v. Ermita,21 the Court recognized the locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer because the issue raised therein involved a subject of
transcendental importance whose resolution was necessary to promulgate rules to guide the
Bench, Bar, and the public in similar cases.
But, it is next posed, did not the intervening appointment of and assumption by Cadiz as the
Solicitor General during the pendency of this suit render this suit and the issue tendered herein
moot and academic?
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.22
Although the controversy could have ceased due to the intervening appointment of and
assumption by Cadiz as the Solicitor General during the pendency of this suit, and such cessation
of the controversy seemingly rendered moot and academic the resolution of the issue of the
constitutionality of the concurrent holding of the two positions by Agra, the Court should still go
forward and resolve the issue and not abstain from exercising its power of judicial review
because this case comes under several of the well-recognized exceptions established in
jurisprudence. Verily, the Court did not desist from resolving an issue that a supervening event
meanwhile rendered moot and academic if any of the following recognized exceptions obtained,
namely: (1) there was a grave violation of the Constitution; (2) the case involved a situation of
exceptional character and was of paramount public interest; (3) the constitutional issue raised
required the formulation of controlling principles to guide the Bench, the Bar and the public; and
(4) the case was capable of repetition, yet evading review.23
It is the same here. The constitutionality of the concurrent holding by Agra of the two positions
in the Cabinet, albeit in acting capacities, was an issue that comes under all the recognized
exceptions. The issue involves a probable violation of the Constitution, and relates to a situation
of exceptional character and of paramount public interest by reason of its transcendental
importance to the people. The resolution of the issue will also be of the greatest value to the
Bench and the Bar in view of the broad powers wielded through said positions. The situation
further calls for the review because the situation is capable of repetition, yet evading review.24 In
other words, many important and practical benefits are still to be gained were the Court to
proceed to the ultimate resolution of the constitutional issue posed.
2.
Unconstitutionality of Agra’s concurrent designation as Acting Secretary of Justice and

Acting Solicitor General
At the center of the controversy is the correct application of Section 13, Article VII of the 1987
Constitution, viz:
Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly practice
any other profession, participate in any business, or be financially interested in any contract with,
or in any franchise, or special privilege granted by the Government or any subdivision, agency,
or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of the 1987
Constitution, to wit:
Section 7. x x x
Unless otherwise allowed by law or the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.
The differentiation of the two constitutional provisions was well stated in Funa v. Ermita,25 a
case in which the petitioner herein also assailed the designation of DOTC Undersecretary as
concurrent Officer-in-Charge of the Maritime Industry Authority, with the Court reiterating its
pronouncement in Civil Liberties Union v. The Executive Secretary26 on the intent of the Framers
behind these provisions of the Constitution, viz:
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants may
do so only when expressly authorized by the Constitution itself. In other words, Section 7,
Article IX-B is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President, Members of the Cabinet, their
deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during their
tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to be
a positive and unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation. The phrase "unless
otherwise provided in this Constitution" must be given a literal interpretation to refer only
to those particular instances cited in the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII. (Bold emphasis supplied.)
Being designated as the Acting Secretary of Justice concurrently with his position of Acting
Solicitor General, therefore, Agra was undoubtedly covered by Section 13, Article VII, supra,
whose text and spirit were too clear to be differently read. Hence, Agra could not validly hold
any other office or employment during his tenure as the Acting Solicitor General, because the
Constitution has not otherwise so provided.27
It was of no moment that Agra’s designation was in an acting or temporary capacity. The text of
Section 13, supra, plainly indicates that the intent of the Framers of the Constitution was to
impose a stricter prohibition on the President and the Members of his Cabinet in so far as holding
other offices or employments in the Government or in government-owned or government
controlled-corporations was concerned.28 In this regard, to hold an office means to possess or to
occupy the office, or to be in possession and administration of the office, which implies nothing
less than the actual discharge of the functions and duties of the office.29 Indeed, in the language
of Section 13 itself, supra, the Constitution makes no reference to the nature of the appointment
or designation. The prohibition against dual or multiple offices being held by one official must
be construed as to apply to all appointments or designations, whether permanent or temporary,
for it is without question that the avowed objective of Section 13, supra, is to prevent the
concentration of powers in the Executive Department officials, specifically the President, the
Vice-President, the Members of the Cabinet and their deputies and assistants.30 To construe
differently is to "open the veritable floodgates of circumvention of an important constitutional
disqualification of officials in the Executive Department and of limitations on the President’s
power of appointment in the guise of temporary designations of Cabinet Members,
undersecretaries and assistant secretaries as officers-in-charge of government agencies,
instrumentalities, or government-owned or controlled corporations."31
According to Public Interest Center, Inc. v. Elma,32 the only two exceptions against the holding
of multiple offices are: (1) those provided for under the Constitution, such as Section 3, Article
VII, authorizing the Vice President to become a member of the Cabinet; and (2) posts occupied
by Executive officials specified in Section 13, Article VII without additional compensation in ex
officio capacities as provided by law and as required by the primary functions of the officials’
offices. In this regard, the decision in Public Interest Center, Inc. v. Elma adverted to the
resolution issued on August 1, 1991 in Civil Liberties Union v. The Executive Secretary,
whereby the Court held that the phrase "the Members of the Cabinet, and their deputies or
assistants" found in Section 13, supra, referred only to the heads of the various executive
departments, their undersecretaries and assistant secretaries, and did not extend to other public
officials given the rank of Secretary, Undersecretary or Assistant Secretary.33 Hence, in Public
Interest Center, Inc. v. Elma, the Court opined that the prohibition under Section 13 did not
cover Elma, a Presidential Assistant with the rank of Undersecretary.34
It is equally remarkable, therefore, that Agra’s designation as the Acting Secretary of Justice was
not in an ex officio capacity, by which he would have been validly authorized to concurrently
hold the two positions due to the holding of one office being the consequence of holding the
other. Being included in the stricter prohibition embodied in Section 13, supra, Agra cannot
liberally apply in his favor the broad exceptions provided in Section 7, paragraph 2, Article IX-B
of the Constitution ("Unless otherwise allowed by law or the primary functions of his position")
to justify his designation as Acting Secretary of Justice concurrently with his designation as
Acting Solicitor General, or vice versa. Thus, the Court has said –
[T]he qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article
VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the
1987 Constitution. To construe said qualifying phrase as respondents would have us do, would
render nugatory and meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the President, Vice-President, Members of the
Cabinet, their deputies and assistants with respect to holding other offices or employment in the
government during their tenure. Respondents’ interpretation that Section 13 of Article VII admits
of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so
carefully set by the framers of the Constitution as to when the highranking officials of the
Executive Branch from the President to Assistant Secretary, on the one hand, and the generality
of civil servants from the rank immediately below Assistant Secretary downwards, on the other,
may hold any other office or position in the government during their tenure.35
To underscore the obvious, it is not sufficient for Agra to show that his holding of the other
office was "allowed by law or the primary functions of his position." To claim the exemption of
his concurrent designations from the coverage of the stricter prohibition under Section 13, supra,
he needed to establish herein that his concurrent designation was expressly allowed by the
Constitution. But, alas, he did not do so.
To be sure, Agra’s concurrent designations as Acting Secretary of Justice and Acting Solicitor
General did not come within the definition of an ex officio capacity. Had either of his concurrent
designations been in an ex officio capacity in relation to the other, the Court might now be ruling
in his favor.
The import of an ex officio capacity has been fittingly explained in Civil Liberties Union v.
Executive Secretary,36 as follows:
x x x. The term ex officio means "from office; by virtue of office." It refers to an "authority
derived from official character merely, not expressly conferred upon the individual character, but
rather annexed to the official position." Ex officio likewise denotes an "act done in an official
character, or as a consequence of office, and without any other appointment or authority other
than that conferred by the office." An ex officio member of a board is one who is a member by
virtue of his title to a certain office, and without further warrant or appointment. x x x.
xxxx
The ex officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and covered by
the compensation attached to his principal office. x x x.
Under the Administrative Code of 1987, the DOJ is mandated to "provide the government with a
principal law agency which shall be both its legal counsel and prosecution arm; administer the
criminal justice system in accordance with the accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders and administration of the correctional
system; implement the laws on the admission and stay of aliens, citizenship, land titling system,
and settlement of land problems involving small landowners and members of indigenous cultural
minorities; and provide free legal services to indigent members of the society."37 The DOJ’s
specific powers and functions are as follows:
(1) Act as principal law agency of the government and as legal counsel and representative
thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and administer the
probation and correction system;
(3) Extend free legal assistance/representation to indigents and poor litigants in criminal
cases and non-commercial civil disputes;
(4) Preserve the integrity of land titles through proper registration;
(5) Investigate and arbitrate untitled land disputes involving small landowners and
members of indigenous cultural communities;
(6) Provide immigration and naturalization regulatory services and implement the laws
governing citizenship and the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries, including
government-owned or controlled corporations and their subsidiaries; and
(8) Perform such other functions as may be provided by law.38
On the other hand, the Administrative Code of 1987 confers upon the Office of the Solicitor
General the following powers and functions, to wit:
The Office of the Solicitor General shall represent the Government of the Philippines, its
agencies and instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of lawyers. When authorized by the President or
head of the office concerned, it shall also represent government owned or controlled
corporations. The Office of the Solicitor General shall discharge duties requiring the services of
lawyers. It shall have the following specific powers and functions:
1. Represent the Government in the Supreme Court and the Court of Appeals in all
criminal proceedings; represent the Government and its officers in the Supreme Court,
the Court of Appeals, and all other courts or tribunals in all civil actions and special
proceedings in which the Government or any officer thereof in his official capacity is a
party.
2. Investigate, initiate court action, or in any manner proceed against any person,
corporation or firm for the enforcement of any contract, bond, guarantee, mortgage,
pledge or other collateral executed in favor of the Government. Where proceedings are to
be conducted outside of the Philippines the Solicitor General may employ counsel to
assist in the discharge of the aforementioned responsibilities.
3. Appear in any court in any action involving the validity of any treaty, law, executive
order or proclamation, rule or regulation when in his judgment his intervention is
necessary or when requested by the Court.
4. Appear in all proceedings involving the acquisition or loss of Philippine citizenship.
5. Represent the Government in all land registration and related proceedings. Institute
actions for the reversion to the Government of lands of the public domain and
improvements thereon as well as lands held in violation of the Constitution.
6. Prepare, upon request of the President or other proper officer of the National
Government, rules and guidelines for government entities governing the preparation of
contracts, making investments, undertaking of transactions, and drafting of forms or other
writings needed for official use, with the end in view of facilitating their enforcement and
insuring that they are entered into or prepared conformably with law and for the best
interests of the public.
7. Deputize, whenever in the opinion of the Solicitor General the public interest requires,
any provincial or city fiscal to assist him in the performance of any function or discharge
of any duty incumbent upon him, within the jurisdiction of the aforesaid provincial or
city fiscal. When so deputized, the fiscal shall be under the control and supervision of the
Solicitor General with regard to the conduct of the proceedings assigned to the fiscal, and
he may be required to render reports or furnish information regarding the assignment.
8. Deputize legal officers of government departments, bureaus, agencies and offices to

assist the Solicitor General and appear or represent the Government in cased involving
their respective offices, brought before the courts and exercise supervision and control
over such legal Officers with respect to such cases.
9. Call on any department, bureau, office, agency or instrumentality of the Government

for such service, assistance and cooperation as may be necessary in fulfilling its functions
and responsibilities and for this purpose enlist the services of any government official or
employee in the pursuit of his tasks.
10. Departments, bureaus, agencies, offices, instrumentalities and corporations to whom

the Office of the Solicitor General renders legal services are authorized to disburse funds
from their sundry operating and other funds for the latter Office. For this purpose, the
Solicitor General and his staff are specifically authorized to receive allowances as may be
provided by the Government offices, instrumentalities and corporations concerned, in
addition to their regular compensation.
11. Represent, upon the instructions of the President, the Republic of the Philippines in
international litigations, negotiations or conferences where the legal position of the
Republic must be defended or presented.
12. Act and represent the Republic and/or the people before any court, tribunal, body or
commission in any matter, action or proceedings which, in his opinion affects the welfare
of the people as the ends of justice may require; and
13. Perform such other functions as may be provided by law.39
The foregoing provisions of the applicable laws show that one position was not derived from the
other. Indeed, the powers and functions of the OSG are neither required by the primary functions
nor included by the powers of the DOJ, and vice versa. The OSG, while attached to the DOJ,40 is
not a constituent unit of the latter,41 as, in fact, the Administrative Code of 1987 decrees that the
OSG is independent and autonomous.42 With the enactment of Republic Act No. 9417,43 the
Solicitor General is now vested with a cabinet rank, and has the same qualifications for
appointment, rank, prerogatives, salaries, allowances, benefits and privileges as those of the
Presiding Justice of the Court of Appeals.44
Moreover, the magnitude of the scope of work of the Solicitor General, if added to the equally
demanding tasks of the Secretary of Justice, is obviously too much for any one official to bear.
Apart from the sure peril of political pressure, the concurrent holding of the two positions, even
if they are not entirely incompatible, may affect sound government operations and the proper
performance of duties. Heed should be paid to what the Court has pointedly observed in Civil
Liberties Union v. Executive Secretary: 45
Being head of an executive department is no mean job. It is more than a full-time job, requiring
full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived
from a department head’s ability and expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental offices or employment. He should
be precluded from dissipating his efforts, attention and energy among too many positions of
responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be
derived from this concentration of attention, knowledge and expertise, particularly at this stage
of our national and economic development, far outweigh the benefits, if any, that may be gained
from a department head spreading himself too thin and taking in more than what he can handle.
It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor General, was
not covered by the stricter prohibition under Section 13, supra, due to such position being merely
vested with a cabinet rank under Section 3, Republic Act No. 9417, he nonetheless remained
covered by the general prohibition under Section 7, supra. Hence, his concurrent designations
were still subject to the conditions under the latter constitutional provision. In this regard, the
Court aptly pointed out in Public Interest Center, Inc. v. Elma:46
The general rule contained in Article IX-B of the 1987 Constitution permits an appointive
official to hold more than one office only if "allowed by law or by the primary functions of his
position." In the case of Quimson v. Ozaeta, this Court ruled that, "[t]here is no legal objection to
a government official occupying two government offices and performing the functions of both as
long as there is no incompatibility." The crucial test in determining whether incompatibility
exists between two offices was laid out in People v. Green - whether one office is subordinate to
the other, in the sense that one office has the right to interfere with the other.
[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x

Where one office is not subordinate to the other, nor the relations of the one to the other such as
are inconsistent and repugnant, there is not that incompatibility from which the law declares that
the acceptance of the one is the vacation of the other. The force of the word, in its application to
this matter is, that from the nature and relations to each other, of the two places, they ought not to
be held by the same person, from the contrariety and antagonism which would result in the
attempt by one person to faithfully and impartially discharge the duties of one, toward the
incumbent of the other. X x x The offices must subordinate, one [over] the other, and they must,
per se, have the right to interfere, one with the other, before they are incompatible at common
law. x x x.
xxxx
While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and
appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries,
undersecretaries and assistant secretaries. In the Resolution in Civil Liberties Union v. Executive
Secretary, this Court already clarified the scope of the prohibition provided in Section 13, Article
VII of the 1987 Constitution. Citing the case of US v. Mouat, it specifically identified the persons
who are affected by this prohibition as secretaries, undersecretaries and assistant secretaries; and
categorically excluded public officers who merely have the rank of secretary, undersecretary or
assistant secretary.
Another point of clarification raised by the Solicitor General refers to the persons affected by the
constitutional prohibition. The persons cited in the constitutional provision are the "Members of
the Cabinet, their deputies and assistants." These terms must be given their common and general
acceptation as referring to the heads of the executive departments, their undersecretaries and
assistant secretaries. Public officials given the rank equivalent to a Secretary, Undersecretary, or
Assistant Secretary are not covered by the prohibition, nor is the Solicitor General affected
thereby. (Italics supplied).
It is clear from the foregoing that the strict prohibition under Section 13, Article VII of the 1987
Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a
secretary, undersecretary, nor an assistant secretary, even if the former may have the same rank
as the latter positions.
It must be emphasized, however, that despite the non-applicability of Section 13, Article VII of
the 1987 Constitution to respondent Elma, he remains covered by the general prohibition under
Section 7, Article IX-B and his appointments must still comply with the standard of
compatibility of officers laid down therein; failing which, his appointments are hereby
pronounced in violation of the Constitution.47
Clearly, the primary functions of the Office of the Solicitor General are not related or necessary
to the primary functions of the Department of Justice. Considering that the nature and duties of
the two offices are such as to render it improper, from considerations of public policy, for one
person to retain both,48 an incompatibility between the offices exists, further warranting the
declaration of Agra’s designation as the Acting Secretary of Justice, concurrently with his
designation as the Acting Solicitor General, to be void for being in violation of the express
provisions of the Constitution.
3.
Effect of declaration of unconstitutionality of Agra’s concurrent appointment; the de facto

officer doctrine
In view of the application of the stricter prohibition under Section 13, supra, Agra did not validly
hold the position of Acting Secretary of Justice concurrently with his holding of the position of
Acting Solicitor General. Accordingly, he was not to be considered as a de jure officer for the
entire period of his tenure as the Acting Secretary of Justice. A de jure officer is one who is
deemed, in all respects, legally appointed and qualified and whose term of office has not
expired.49
That notwithstanding, Agra was a de facto officer during his tenure as Acting Secretary of
Justice. In Civil Liberties Union v. Executive Secretary,50 the Court said:
During their tenure in the questioned positions, respondents may be considered de facto officers
and as such entitled to emoluments for actual services rendered. It has been held that "in cases
where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of
the office, and may in an appropriate action recover the salary, fees and other compensations
attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it
seems unjust that the public should benefit by the services of an officer de facto and then be
freed from all liability to pay any one for such services. Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in the questioned
positions may therefore be retained by them.
A de facto officer is one who derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its face.51 He
may also be one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer.52 Consequently, the acts of the de facto
officer are just as valid for all purposes as those of a de jure officer, in so far as the public or
third persons who are interested therein are concerned. 53
In order to be clear, therefore, the Court holds that all official actions of Agra as a de facto
Acting Secretary of Justice, assuming that was his later designation, were presumed valid,
binding and effective as if he was the officer legally appointed and qualified for the office. 54
This clarification is necessary in order to protect the sanctity of the dealings by the public with
persons whose ostensible authority emanates from the State. 55 Agra's official actions covered by
this claritlcation extend to but are not limited to the promulgation of resolutions on petitions for
review filed in the Department of Justice, and the issuance of department orders, memoranda and
circulars relative to the prosecution of criminal cases.
WHEREFORE, the Comi GRANTS the petition for certiorari and prohibition; ANNULS AND
VOIDS the designation of Hon. Alberto C. Agra as the Acting Secretary of Justice in a
concurrent capacity with his position as the Acting Solicitor General for being unconstitutional
and violative of Section 13, Article VII of the 1987 Constitution; and DECLARES that l-Ion.
Alberto C. Agra was a de facto officer during his tenure as Acting Secretary of Justice.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice



BIENVENIDO L. REYEZ ESTELA M. PERLAS-BERNABE

MARVIC M.V. F. LEONEN

Associate Justice
CERTIFICATION

Chief Justice
Footnotes
1
Rollo, p. 13.
2
Id. at 172.
3
Id. at 76.
4
Id. at 77.
5
6
G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA 317.
7
G.R. No. 138965, June 30, 2006, 494 SCRA 53.
8
Section 34, Chapter 12, Title III, Book 4 of the Administrative Code of 1987.
9
Rollo, p. 83.
10
Id. at 86.
11
Id. at 87.
12
Id. at 91, 100.
13
Id. at 94.
14
Id.
15
Id. at 126.
16
Id. at 128-129.
17
Id. at 137.
18
Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of Budget and
Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 382.
19
G.R. No. 192791, April 24, 2012, 670 SCRA 579.
20
Id. at 594-595.
21
Supra note 4.
22
Id. at 319.
23
See Funa v. Villar, supra note 18, at 592-593; David v. Macapagal-Arroyo, G.R. Nos.
171396, 171409, 171485, 171483, 171400, 171489 & 171424, May 3, 2006, 489 SCRA
160, 214-215.
24
Javier v. Commission on Elections, Nos. L-68379-81, September 22, 1986, 144 SCRA
194, 198.
25
Supra note 4.
26
27
E.g., the Constitution, under its Section (1), Article VIII, provides that the Secretary of
Justice sits as an ex officio member of the Judicial and Bar Council.
28
Civil Liberties Union v. The Executive Secretary, supra note 5, at 326-327.
29
Funa v. Ermita, supra note 4, at 329.
30
Id. at 330.
31
Id. at 331.
32
Supra note 6.
33
The clarification was the Court’s action on the motion for clarification filed in Civil
Liberties Union v. The Executive Secretary, and revises the main opinion promulgated on
February 22, 1991 (194 SCRA 317) totally invalidating Executive Order No. 284 dated
July 25, 1987 (whose questioned Section 1 states: "Even if allowed by law or by the
ordinary functions of his position, a member of the Cabinet, undersecretary or assistant
secretary or other appointive officials of the Executive Department may, in addition to his
primary position, hold not more than two positions in the government and government
corporations and receive the corresponding compensation therefor; Provided, that this
limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies
of which the President is the Chairman."). The clarifying dictum now considered
Executive Order No. 284 partly valid to the extent that it included in its coverage "other
appointive officials" aside from the members of the Cabinet, their undersecretaries and
assistant secretaries, with the dispositive part of the clarificatory resolution of August 1,
1991 stating: "WHEREFORE, subject to the qualification above-stated, the petitions are
GRANTED. Executive Order No. 284 is hereby declared null and void insofar as it
allows a member of the Cabinet, undersecretary or assistant secretary to hold other
positions in the government and government-owned and controlled corporations."
34
Public Interest Center, Inc. v. Elma, supra note 6 at 64, with the Court summing up at
the end with the statement: "In sum, the prohibition in Section 13, Article VII of the 1987
Constitution does not apply to respondent Elma since neither the PCGG Chairman nor
the (Chief Presidential Legal Counsel) is a Cabinet secretary, undersecretary, or assistant
secretary. x x x."
35
Civil Liberties Union v. The Executive Secretary, supra note 5, at 329-330.
36
Id. at 333-335.
37
Sections 1 and 2, Chapter 1, Title III, Book IV of the Administrative Code of 1987.
38
Section 3, Chapter 1, Title III, Book IV of the Administrative Code of 1987.
39
40
41
42
43
An Act to Strengthen the Office of the Solicitor General, by Expanding and
Streamlining its Bureaucracy, Upgrading Employee Skills, and Augmenting Benefits, and
Appropriating funds therefor and for Other Purposes.
44
Section 3, Republic Act No. 9417.
45
46
Supra note 6.
47
Id. at 59-63.
48
Summers v. Ozaeta, 81 Phil. 754, 764 (1948); see Mechem, A Treatise on the Law of
Public Offices and Officers, pp. 268-269 (1890).
49
Topacio v. Ong, G.R. No. 179895, December 18, 2008, 574 SCRA 817, 830.
50
51
Dimaandal v. Commission on Audit, G.R. No. 122197, June 26, 1998, 291 SCRA 322,
330.
52
Id; see also The Civil Service Commission v. Joson, Jr., G.R. No. 154674, May 27,
2004, 429 SCRA 773, 786-787.
53
See Mechem, supra note 4 7, at I 0 and 218; Topacio v. ng, supra note 48, at 829-830.
54
ld.; Seneres v. Commission on Elections, G.R. No. 178678, April 16, 2009, 585 SCRA
557, 575.
55
Topacio v. Ong, supra note 48 at 830.
SUPREME COURT
Manila
EN BANC
G.R. No. 168613 March 5, 2013
ATTY. MA. ROSARIO MANALANG-DEMIGILLO, Petitioner,

vs.
PHILIPPINES (TIDCORP), and its BOARD OF DIRECTORS, Respondents.
x-----------------------x
G.R. No. 185571

PHILIPPINES, Petitioner,
vs.
MA. ROSARIO S. MANALANG-DEMIGILLO, Respondent.
DECISION
BERSAMIN, J.:
A reorganization undertaken pursuant to a specific statutory authority by the Board of Directors

of a government-owned and government-controlled corporation is valid.
Antecedents
On February 12, 1998, the Philippine Export and Foreign Loan Guarantee was renamed Trade
and Investment Development Corporation of the Philippines (TIDCORP) pursuant to Republic
Act No. 8494 entitled An Act Further Amending Presidential Decree No. 1080, As Amended, by
Reorganizing And Renaming the Philippine Export and Foreign Loan Guarantee Corporation,
Expanding Its Primary Purpose, and for Other Purposes.
Republic Act No. 8494 reorganized the structure of TIDCORP. The issuance of appointments in
accordance with the reorganization ensued. Petitioner Rosario Manalang-Demigillo (Demigillo)
was appointed as Senior Vice President (PG 15) with permanent status, and was assigned to the
Legal and Corporate Services Department (LCSD) of TIDCORP.
In 2002, TIDCORP President Joel C. Valdes sought an opinion from the Office of the
Government Corporate Counsel (OGCC) relative to TIDCORP’s authority to undertake a
reorganization under the law, whose Section 7 and Section 8 provide as follows:
Section 7. The Board of Directors shall provide for an organizational structure and staffing
pattern for officers and employees of the Trade and Investment Development Corporation of the
Philippines (TIDCORP) and upon recommendation of its President, appoint and fix their
remuneration, emoluments and fringe benefits: Provided, That the Board shall have exclusive
and final authority to appoint, promote, transfer, assign and re-assign personnel of the
TIDCORP, any provision of existing law to the contrary notwithstanding. x x x
Section 8. All incumbent personnel of the Philippine Export and Foreign Loan Guarantee
Corporation shall continue to exercise their duties and functions as personnel of the TIDCORP
until reorganization is fully implemented but not to exceed one (1) year from the approval of this
Act. The Board of Directors is authorized to provide for separation benefits for those who cannot
be accommodated in the new structure. All those who shall retire or are separated from the
service on account of the reorganization under the preceding Section shall be entitled to such
incentives, as are authorized by the Corporation, which shall be in addition to all gratuities and
benefits to which they may be entitled under existing laws.
In Opinion No. 221 dated September 13, 2002,1 then Government Corporate Counsel Amado D.
Valdez opined as follows:
There is no question on the power of the PhilEXIM (also known as TIDCORP) Board of
Directors to undertake a reorganization of the corporation’s present organizational set-up. In fact,
the authority to provide for the corporation’s organizational structure is among the express
powers granted to PhilEXIM through its Board.
As to the one-year period to implement a reorganization mentioned in Section 8 of RA 8494, it is

our considered opinion that the same provision refers to the initial reorganization to effect
transition from the Philippine Export and Foreign Loan Guarantee Corporation (Philguarantee)
to what is now known as the Trade and Investment Corporation of the Philippines (TIDCORP).
The one-year period does not, however, operate as a limitation that any subsequent changes in
the organizational set-up pursuant to the authority of the Board to determine the corporation’s
organizational structure under Section 7 of RA 8494, which is designed to make the corporation
more attuned to the needs of the people or, in this case, the sector of the Philippine economy that
it serves, can only be made during the same one-year period.
On the basis of OGCC Opinion No. 221, the Board of Directors passed Resolution No. 1365,
Series of 2002, on October 22, 2002 to approve a so-called Organizational
Refinement/Restructuring Plan to implement a new organizational structure and staffing pattern,
a position classification system, and a new set of qualification standards.
During the implementation of the Organizational Refinement/Restructuring Plan, the LCSD was
abolished. According to the List of Appointed Employees under the New Organizational
Structure of TIDCORP as of November 1, 2002, Demigillo, albeit retaining her position as a
Senior Vice President, was assigned to head the Remedial and Credit Management Support
Sector (RCMSS). On the same date, President Valdes issued her appointment as head of
RCMSS, such appointment being in nature a reappointment under the reorganization plan.
On December 13, 2002, President Valdes issued a memorandum informing all officers and
employees of TIDCORP that the Board of Directors had approved on December 11, 2002 the
appointments issued pursuant to the newly approved positions under the Organizational
Refinement/Restructuring Plan.
In her letter dated December 23, 2002 that she sent to TIDCORP Chairman Jose Isidro Camacho,
however, Demigillo challenged before the Board of Directors the validity of Resolution No.
1365 and of her assignment to the RCMSS. She averred that she had been thereby illegally
removed from her position of Senior Vice President in the LCSD to which she had been
previously assigned during the reorganization of July 1998. She insisted that contrary to OGCC
Opinion No. 221 dated September 13, 2002 the Board of Directors had not been authorized to
undertake the reorganization and corporate restructuring.
On January 31, 2003, pending determination of her challenge by the Board of Directors,
Demigillo appealed to the Civil Service Commission (CSC), raising the same issues.
TIDCORP assailed the propriety of Demigillo’s appeal to the CSC, alleging that her elevation of
the case to the CSC without the Board of Directors having yet decided her challenge had been
improper and a clear case of forum-shopping.
Later on, however, TIDCORP furnished to the CSC a copy of Board Decision No. 03-002
dismissing Demigillo’s appeal for its lack of merit, thereby rendering the question about the
propriety of Demigillo’s appeal moot and academic. Board Decision No. 03-002 pertinently
reads as follows:
Atty. Demigillo failed to show to the Board that she was prejudiced in the implementation of the
TIDCORP organizational refinements/restructuring. She was reappointed to the same position
she was holding before the reorganization. She was not demoted in terms of salary, rank and
status. There was a (sic) substantial compliance with the requirements of RA 6656, particularly
on transparency. More importantly, the said organizational refinements done and adoption of a
new compensation structure were made in accordance with what is mandated under the Charter
of the Corporation.
WHEREFORE, foregoing premises considered, the Board decided as it hereby decides to

DISMISS the appeal of Atty. Ma Rosario Demigillo for lack of merit.2
In the meanwhile, by letter dated April 14, 2003, President Valdes informed Demigillo of her
poor performance rating for the period from January 1, 2002 to December 31, 2002, to wit:
After a thorough evaluation/assessment of your job performance for the rating period January 1
to December 21, 2002, it appears that your over-all performance is ‘Poor’.
Records show that you consistently behaved as an obstructionist in the implementation of the
Corporate Business Plan. You failed to demonstrate cooperation, respect and concern towards
authority and other members of the company. You also failed to abide by Civil Service and
company policies, rules and regulation. You miserably failed to adapt and respond to changes.
You were very resentful to new approaches as shown by your vehement objection to new
improved policies and programs. Instead of helping raise the morale of subordinate at high levels
(sic) and promote career and professional growth of subordinates, you tried to block such efforts
towards this end.
In view of the foregoing and your failure to prove that you have effectively and efficiently
performed the duties, functions and responsibility (sic) of your position, I am constrained to give
you a rating of "Poor" for your 2002 performance.3
On April 28, 2003, Demigillo formally communicated to Atty. Florencio P. Gabriel Jr.,
Executive Vice President of the Operations Group, appealing the "poor rating" given her by
President Valdes.
In a memorandum dated May 6, 2003, Atty. Gabriel informed Demigillo that he could not act on
her appeal because of her "failure to state facts and arguments constituting the grounds for the
appeal and submit any evidence to support the same."4
On May 6, 2003, President Valdes issued a memorandum to Demigillo stating that he found no
justification to change the poor rating given to her for the year 2002.
On August 12, 2003, Demigillo received a memorandum from President Valdes stating that her
performance rating for the period from January 1, 2003 to June 2003 "needs improvement,"
attaching the pertinent Performance Evaluation Report Form that she was instructed to return
"within 24 hours from receipt."5
Not in conformity with the performance rating, Demigillo scribbled on the right corner of the
memorandum the following comments: "I do not agree and accept. I am questioning the same.
This is pure harassment."
She then appealed the poor performance rating on August 14, 2003, calling the rating a part of
Valdes’ "unremitting harassment and oppression on her."6
On August 19, 2003, Demigillo reported for work upon the expiration of the 90-day preventive
suspension imposed by the Board of Directors in a separate administrative case for grave
misconduct, conduct prejudicial to the best interest of the service, insubordination and gross
discourtesy. In her memorandum of that date, she informed Atty. Gabriel Jr. of her readiness to
resume her duties and responsibilities, but requested to be allowed to reproduce documents in
connection with the appeal of her performance rating. She further requested that the relevant
grievance process should commence.
It appears that the Board of Directors rendered Decision No. 03-003 dated August 15, 2003
unanimously dropping Demigillo from the rolls.7 Demigillo received the copy of Decision No.
03-003 on August 25, 2003.
Decision of the CSC

On October 14, 2004, the CSC ruled through Resolution No. 0410928 that the 2002
Organizational Refinements or Restructuring Plan of TIDCORP had been valid for being
authorized by Republic Act. No. 6656; that Section 7 of Republic Act No. 8498 granted a
continuing power to TIDCORP’s Board of Directors to prescribe the agency’s organizational
structure, staffing pattern and compensation packages; and that such grant continued until
declared invalid by a court of competent jurisdiction or revoked by Congress.
The CSC held, however, that TIDCORP’s implementation of its reorganization did not comply
with Section 6 of Republic Act No. 6656;9 that although there was no diminution in Demigillo’s
rank, salary and status, there was nonetheless a demotion in her functions and authority,
considering that the 2002 reorganization reduced her authority and functions from being the
highest ranking legal officer in charge of all the legal and corporate affairs of TIDCORP to being
the head of the RCMSS reporting to the Executive Vice President and having only two
departments under her supervision; and that the functions of Demigillo’s office were in fact
transferred to the Operations Group.
The CSC further held that the dropping from the rolls of Demigillo did not comply with the
mandatory requirement under Section 2, particularly 2.2 Rule XII of the Revised Omnibus Rules
on Appointments and Other Personnel Actions Memorandum Circular No. 40, Series of 1998.
Subsequently, TIDCORP reinstated Demigillo to the position of Senior Vice President in

RCMSS, a position she accepted without prejudice to her right to appeal the decision of the CSC.
Ruling of the CA
Both Demigillo and TIDCORP appealed the decision of the CSC to the Court of Appeals (CA).
Demigillo’s appeal was docketed as CA-G.R. SP No. 87285. On the other hand, TIDCORP’s
appeal was docketed as CA-G.R. SP No. 87295.
In CA-G.R. SP No. 87285, Demigillo partially assailed the CSC’s decision, claiming that the
CSC erred: (1) in holding that Section 7 of Republic Act No. 8494 granted the Board of
Directors of TIDCORP a continuing power to reorganize; (2) in holding that the 2002 TIDCORP
reorganization had been authorized by law; and (3) in not holding that the 2002 TIDCORP
reorganization was void ab initio because it was not authorized by law and because the
reorganization did not comply with Republic Act No. 6656.10
In CA-G.R. SP No. 87295, TIDCORP contended that the CSC erred: (1) in ruling that Demigillo
had been demoted as a result of the 2002 TIDCORP reorganization; and (2) in ruling that
TIDCORP had failed to observe the provisions of Section 2, particularly 2.2 Rule XII of the
Revised Omnibus Rules on Appointments and Other Personnel Actions (Memorandum Circular
No. 40, Series of 1998) on dropping from the rolls, to the prejudice of Demigillo’s right to due
process.11
On June 27, 2005, the CA’s Fourth Division promulgated its decision in CA–G.R. SP No.
87285,12 which, albeit affirming the ruling of the CSC, rendered a legal basis different from that
given by the CSC, to wit:
In numerous cases citing Section 20 and Section 31, Book III of Executive Order No. 292,
otherwise known as the Administrative Code of 1987, the Supreme Court ruled in the affirmative
that the President of the Philippines has the continuing authority to reorganize the administrative
structure of the Office of the President.
Hence, being the alter ego of the President of the Philippines, the Board of Directors of the
private respondent-appellee is authorized by law to have a continuous power to reorganize its
agency.13
Anent Demigillo’s contention that the 2002 reorganization effected was invalid, the CA ruled:
x x x. In this jurisdiction, reorganizations have been regarded as valid provided they are pursued
in good faith. Reorganization is carried out in good faith if it is for the purpose of economy or to
make bureaucracy more efficient.
In the case at bench, it is our considered opinion that except for her allegations, the petitioner-
appellant (Demigillo) failed to present sufficient evidence that the reorganization effected in
2002 did not bear the earmarks of economy and efficiency. Good faith is always presumed.14
The CA held that Demigillo could not be reinstated to her previous position of Senior Vice
President of the LCSD in view of the legality of the 2002 reorganization being upheld.15
With respect to CA-G.R. SP No. 87295, the CA’s Special Former Thirteenth Division
promulgated a decision on November 28, 2008,16 denying TIDCORP’s appeal, and holding that
Demigillo had been demoted and invalidly dropped from the rolls by TIDCORP, explaining:
We do not need to stretch Our imagination that respondent Demigillo, one of the highest ranking
officers of the corporation, was indeed demoted when she was designated to be the head of
merely one sector. She may have retained her title as SVP, but she was deprived of the authority
she previously enjoyed and stripped of the duties and responsibilities assigned to her under the
Legal and Corporate Services. In utter disregard of respondent Demigillo’s right to security of
tenure, petitioner TIDCORP demoted her in the guise of "reorganization."
xxxx
Next, petitioner TIDCORP asserts that respondent Demigillo was legally dropped from the rolls.
This is a delirious supposition which does not deserve merit at all.
xxxx
Petitioner TIDCORP did not bother to adduce proof that it complied with the rudiments of due
process before dropping Demigillo from the rolls. She was not given the chance to present
evidence refuting the contentious ratings as her employer refused to discuss how it arrived at
such assessment. Her unceremonious dismissal was made even more apparent as she was never
advised of the possibility that she may be separated from service if her rating would not improve
for the next evaluation period.17
Issues
Demigillo filed before this Court a petition for review on certiorari assailing the CA decision in
CA-G.R. SP No. 87285 (G.R. No. 168613), asserting that the CA gravely erred: (1) in holding
that the Board of Directors of TIDCORP was an alter ego of the President who had the
continuing authority to reorganize TIDCORP; and (2) in holding that the reorganization of
TIDCORP effected in 2002 was valid considering her alleged failure to present evidence
sufficiently showing that the reorganization did not bear the earmarks of economy and
efficiency.18 Corollarily, she sought her reinstatement to a position comparable to her former
position as Senior Vice President in the LCSD.19
Likewise, TIDCORP appealed through a petition for review on certiorari, praying for the
reversal of the decision promulgated in CA-G.R. SP No. 87295 (G.R. No. 185571), contending
that the CA erred: (1) in ruling that Demigillo had been demoted as a result of the TIDCORP
2002 reorganization; and (2) in ruling that Demigillo had not been legally dropped from the
rolls.20
On March 8, 2011, the Court En Banc consolidated G.R. No. 168613 and G.R. No. 185571.21
Ruling of the Court
We deny the petition for review of Demigillo (G.R. No. 168613) for its lack of merit, but grant
the petition for review of TIDCORP (G.R. No. 185571).
G.R. No. 168613
In its comment in G.R. No. 168613,22 TIDCORP argues for the application of the doctrine of
qualified political agency, contending that the acts of the Board of Directors of TIDCORP, an
attached agency of the Department of Finance whose head, the Secretary of Finance, was an alter
ego of the President, were also the acts of the President.
TIDCORP’s argument is unfounded.
The doctrine of qualified political agency, also known as the alter ego doctrine, was introduced
in the landmark case of Villena v. The Secretary of Interior.23 In said case, the Department of
Justice, upon the request of the Secretary of Interior, investigated Makati Mayor Jose D. Villena
and found him guilty of bribery, extortion, and abuse of authority. The Secretary of Interior then
recommended to the President the suspension from office of Mayor Villena. Upon approval by
the President of the recommendation, the Secretary of Interior suspended Mayor Villena.
Unyielding, Mayor Villena challenged his suspension, asserting that the Secretary of Interior had
no authority to suspend him from office because there was no specific law granting such power
to the Secretary of Interior; and that it was the President alone who was empowered to suspend
local government officials. The Court disagreed with Mayor Villena and upheld his suspension,
holding that the doctrine of qualified political agency warranted the suspension by the Secretary
of Interior. Justice Laurel, writing for the Court, opined:
After serious reflection, we have decided to sustain the contention of the government in this case
on the broad proposition, albeit not suggested, that under the presidential type of government
which we have adopted and considering the departmental organization established and continued
in force by paragraph 1, section 12, Article VII, of our Constitution, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except in cases
where the Chief Executive is required by the Constitution or the law to act in person or the
exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive
departments, and the acts of the secretaries of such departments, performed and promulgated in
the regular course of business, are, unless disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive. (Runkle vs. United States [1887], 122 U. S., 543;
30 Law. ed., 1167; 7 Sup. Ct. Rep., 1141; see also U. S. vs. Eliason [1839], 16 Pet., 291; 10 Law.
ed., 968; Jones vs. U. S. [1890], 137 U. S., 202; 34 Law. ed., 691; 11 Sup. Ct., Rep., 80; Wolsey
vs. Chapman [1880], 101 U. S., 755; 25 Law. ed., 915; Wilcox vs. Jackson [1836], 13 Pet., 498;
10 Law. ed., 264.)
Fear is expressed by more than one member of this court that the acceptance of the principle of
qualified political agency in this and similar cases would result in the assumption of
responsibility by the President of the Philippines for acts of any member of his cabinet, however
illegal, irregular or improper may be these acts. The implications, it is said, are serious. Fear,
however, is no valid argument against the system once adopted, established and operated.
Familiarity with the essential background of the type of Government established under our
Constitution, in the light of certain well-known principles and practices that go with the system,
should offer the necessary explanation. With reference to the Executive Department of the
government, there is one purpose which is crystal-clear and is readily visible without the
projection of judicial searchlight, and that is the establishment of a single, not plural, Executive.
The first section of Article VII of the Constitution, dealing with the Executive Department,
begins with the enunciation of the principle that "The executive power shall be vested in a
President of the Philippines." This means that the President of the Philippines is the Executive of
the Government of the Philippines, and no other. The heads of the executive departments occupy
political positions and hold office in an advisory capacity, and, in the language of Thomas
Jefferson, "should be of the President’s bosom confidence" (7 Writings, Ford ed., 498), and in
the language of Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the
direction of the President." Without minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of that of the President. Stated
otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United
States, "each head of a department is, and must be, the President's alter ego in the matters of that
department where the President is required by law to exercise authority." (Myers vs. United
States, 47 Sup. Ct. Rep., 21 at 30; 272 U.S. 52 at 133; 71 Law. Ed., 160). x x x.
The doctrine of qualified political agency essentially postulates that the heads of the various
executive departments are the alter egos of the President, and, thus, the actions taken by such
heads in the performance of their official duties are deemed the acts of the President unless the
President himself should disapprove such acts. This doctrine is in recognition of the fact that in
our presidential form of government, all executive organizations are adjuncts of a single Chief
Executive; that the heads of the Executive Departments are assistants and agents of the Chief
Executive; and that the multiple executive functions of the President as the Chief Executive are
performed through the Executive Departments. The doctrine has been adopted here out of
practical necessity, considering that the President cannot be expected to personally perform the
multifarious functions of the executive office.
But the doctrine of qualified political agency could not be extended to the acts of the Board of
Directors of TIDCORP despite some of its members being themselves the appointees of the
President to the Cabinet. Under Section 10 of Presidential Decree No. 1080, as further amended
by Section 6 of Republic Act No. 8494,24 the five ex officio members were the Secretary of
Finance, the Secretary of Trade and Industry, the Governor of the Bangko Sentral ng Pilipinas,
the Director-General of the National Economic and Development Authority, and the Chairman
of the Philippine Overseas Construction Board, while the four other members of the Board were
the three from the private sector (at least one of whom should come from the export community),
who were elected by the ex officio members of the Board for a term of not more than two
consecutive years, and the President of TIDCORP who was concurrently the Vice-Chairman of
the Board. Such Cabinet members sat on the Board of Directors of TIDCORP ex officio, or by
reason of their office or function, not because of their direct appointment to the Board by the
President. Evidently, it was the law, not the President, that sat them in the Board.
Under the circumstances, when the members of the Board of Directors effected the assailed 2002
reorganization, they were acting as the responsible members of the Board of Directors of
TIDCORP constituted pursuant to Presidential Decree No. 1080, as amended by Republic Act
No. 8494, not as the alter egos of the President. We cannot stretch the application of a doctrine
that already delegates an enormous amount of power. Also, it is settled that the delegation of
power is not to be lightly inferred.25
Nonetheless, we uphold the 2002 reorganization and declare it valid for being done in
accordance with the exclusive and final authority expressly granted under Republic Act No.
8494, further amending Presidential Decree No. 1080, the law creating TIDCORP itself, to wit:
Section 7. The Board of Directors shall provide for an organizational structure and staffing
pattern for officers and employees of the Trade and Investment Development Corporation of the
Philippines (TIDCORP) and upon recommendation of its President, appoint and fix their
remuneration, emoluments and fringe benefits: Provided, That the Board shall have exclusive
and final authority to appoint, promote, transfer, assign and re-assign personnel of the
TIDCORP, any provision of existing law to the contrary notwithstanding.
In this connection, too, we reiterate that we cannot disturb but must respect the ruling of the CSC
that deals with specific cases coming within its area of technical knowledge and expertise,26
absent a clear showing of grave abuse of discretion on its part. That clear showing was not made
herein. Such deference proceeds from our recognition of the important role of the CSC as the
central personnel agency of the Government having the familiarity with and expertise on the
matters relating to the career service.
Worthy to stress, lastly, is that the reorganization was not arbitrary and whimsical. It had been
formulated following lengthy consultations and close coordination with the affected offices
within TIDCORP in order for them to come up with various functional statements relating to the
new organizational setup. In fact, the Board of Directors decided on the need to reorganize in
2002 to achieve several worthy objectives, as follows:
(1) To make the organization more viable in terms of economy, efficiency, effectiveness
and make it more responsive to the needs of its clientèles by eliminating or minimizing
any overlaps and duplication of powers and functions;
(2) To come up with an organizational structure which is geared towards the

strengthening of the Corporation's overall financial and business operations through
resource allocation shift; and
(3) To rationalize corporate operations to maximize resources and achieve optimum

sustainable corporate performance vis-a-vis revised corporate policies, objectives and
directions by focusing the Corporation's efforts and resources to its vital and core
functions.27
The result of the lengthy consultations and close coordination was the comprehensive
reorganization plan that included a new organizational structure, position classification and
staffing pattern, qualification standards, rules and regulations to implement the reorganization,
separation incentive packages and timetable of implementation. Undoubtedly, TIDCORP
effected the reorganization within legal bounds and in response to the perceived need to make
the agency more attuned to the changing times.
Having found the 2002 reorganization to be valid and made pursuant to Republic Act No. 8494,
we declare that there are no legal and practical bases for reinstating Demigillo to her former
position as Senior Vice President in the LCSD. To be sure, the reorganization plan abolished the
LCSD, and put in place a set-up completely different from the previous one, including a new
staffing pattern in which Demigillo would be heading the RCMSS, still as a Senior Vice
President of TIDCORP. With that abolition, reinstating her as Senior Vice President in the LCSD
became legally and physically impossible.
Demigillo’s contention that she was specifically appointed to the position of Senior Vice
President in the LCSD was bereft of factual basis. The records indicate that her permanent
appointment pertained only to the position of Senior Vice President.28 Her appointment did not
indicate at all that she was to hold that specific post in the LCSD. Hence, her re-assignment to
the RCMSS was by no means a diminution in rank and status considering that she maintained the
same rank of Senior Vice President with an accompanying increase in pay grade.
The assignment to the RCMSS did not also violate Demigillo’s security of tenure as protected by
Republic Act No. 6656. We have already upheld reassignments In the Civil Service resulting
from valid reorganizations.29 Nor could she claim that her reassignment was invalid because it
caused the reduction in her rank, status or salary. On the contrary, she was reappointed as Senior
Vice President, a position that was even upgraded like all the other similar positions to Pay
Grade 16, Step 4, Level II.30 In every sense, the position to which she was reappointed under the
2002 reorganization was comparable with, if not similar to her previous position.
That the RCMSS was a unit smaller than the LCSD did not necessarily result in or cause a
demotion for Demigillo. Her new position was but the consequence of the valid reorganization,
the authority to implement which was vested in the Board of Directors by Republic Act No.
8494. Indeed, we do not consider to be a violation of the civil servant’s right to security of tenure
the exercise by the agency where she works of the essential prerogative to change the work
assignment or to transfer the civil servant to an assignment where she would be most useful and
effective. More succinctly put, that prerogative inheres with the employer,31 whether public or
private.
G.R. No. 185571
As earlier stated, TIDCORP’s petition for review in G.R. No. 185571 is meritorious.
Anent the first issue in G.R. No. 185571, we have already explained that Demigillo was not
demoted because she did not suffer any diminution in her rank, status and salary under the
reorganization. Her reassignment to the RCMSS, a smaller unit compared to the LCSD,
maintained for her the same rank of Senior Vice-President with a corresponding increase in pay
grade. The reassignment resulted from the valid reorganization.
With respect to the second issue, Demigillo was validly dropped from the rolls by TIDCORP as
the consequence of the application of the rules governing her employment. Section 2 (2.2), Rule
XII of the Revised Omnibus Rules on Appointments and Other Personnel Actions
(Memorandum Circular No. 40, Series of 1998) provides:
xxxx
2.2 Unsatisfactory or Poor Performance
a. An official or employee who is given two (2) consecutive unsatisfactory ratings may
be dropped from the rolls after due notice. Notice shall mean that the officer or employee
concerned is informed in writing of his unsatisfactory performance for a semester and is
sufficiently warned that a succeeding unsatisfactory performance shall warrant his
separation from the service. Such notice shall be given not later than 30 days from the
end of the semester and shall contain sufficient information which shall enable the
employee to prepare an explanation.
b. An official or employee, who for one evaluation period is rated poor in performance,
may be dropped from the rolls after due notice. Notice shall mean that the officer or
employee is informed in writing of the status of his performance not later than the 4th
month of that rating period with sufficient warning that failure to improve his
performance within the remaining period of the semester shall warrant his separation
from the service. Such notice shall also contain sufficient information which shall enable
the employee to prepare an explanation.
Under Section (b), supra, an official or employee may be dropped from the rolls provided the
following requisites are present, namely: (1) the official or employee was rated poor in
performance for one evaluation period; (2) the official or employee was notified in writing of the
status of her performance not later than the 4th month of the rating period with sufficient
warning that failure to improve her performance within the remaining period of the semester
shall warrant her separation from the service; and (3) such notice contained adequate information
that would enable her to prepare an explanation.
All of the requisites were duly established herein.
As to the first requisite, there is no dispute that President Valdes gave Demigillo a poor
performance rating for the annual rating period from January 1, 2002 to December 31, 2002.
The second requisite speaks of a sixth-month or per semester rating period. Although
Demigillo’s poor rating was made on an annual basis, that was allowed by the implementing
rules of Executive Order No. 292.32 Regarding the need to give her the written notice of her
performance status not later than the 4th month of the rating period, or at the half of the semester,
the requirement did not apply here because her rating was made on an annual basis. By analogy,
however, the written notice for an annual rating period could be sent on the 6th month or in the
middle of the year. Nevertheless, this was not expressly provided for in the Civil Service
rules.1âwphi1 In any case, it is emphasized that the purpose of the written notice being sent to
the affected officer or employee not later than the 4th month of the rating period has been to give
her the sufficient time to improve her performance and thereby avert her separation from the
service. That purpose is the very essence of due process.
In Demigillo’s case, therefore, what was crucial was whether she had been allowed to enhance
her performance within a sufficient time from her receipt of the written notice of the poor
performance rating up to her receipt of the written notice of her dropping from the rolls. The
records show that she was, indeed, given enough time for her to show improvement. She
received on April 21, 2003 a letter from President Valdes that indicated her poor performance
rating for the period of January 1, 2002 to December 31, 2002.33 The Board of Directors issued
on August 15, 2003 the decision dropping her from rolls.34 She received a copy of the decision
on August 25, 2003.35 Thereby, she was given almost four months to improve her performance
before she was finally dropped from the rolls.
The second requisite further mentions that the written notice must contain sufficient warning that
failure to improve her performance within the remaining period of the semester shall warrant
separation from the service. Although the letter informing Demigillo of her poor performance
rating did not expressly state such a warning to her, it stated her gross failures in the performance
of her duties.36 The Performance Evaluation Report Form corresponding to her, which was
attached to the memorandum given to her, reflected her poor performance.36 She was notified in
writing of the denial of her appeal of the poor rating.37 It cannot be denied that the letter of poor
rating, the Performance Evaluation Repmi Form, and the denial of her appeal all signified to her
that she could be removed from the service unless she would improve her performance. Thereby,
she was given ample warning to improve, or else be separated from the service. In that regard,
she was certainly not a witless person who could have missed the significance of such events.
She was not only a lawyer. 38 She was also a mid-level ranking government official who had
been in the government corporate sector for almost 20 years.39 Her familiarity with the dire
consequences of a failure to improve a poor rating under Civil Service rules was justifiably
assumed.
Anent the third requisite, the letter of President Valdes plainly stated the reasons for her poor
rating. Her Performance Evaluation Repmi Form, which was attached to the letter, enumerated
several criteria used in measuring her management skills and the corresponding rating per
criterion. The letter even suggested that in order for her to enhance her performance she should
undergo extensive training on business management, a comprehensive lecture program on Civil
Service rules and regulations, and a training on effective public relations. The letter indicated
that the contents of the Performance Evaluation Report had been discussed with her. Moreover,
Demigillo formally appealed the poor performance rating, except that TIDCORP denied her
appeal.40All these circumstances show that she was given more than enough information about
the bases for her poor performance rating, enabling her to appeal properly.
WHEREFORE, we DENY the petition for review on certiorari in G.R. No. 168613; AFFIRM the
decision promulgated on June 27, 2005 by the Court of Appeals in its CA-G.R. No. 87285;
GRANT the petition for review on certiorari in G.R. No. 185571; SET ASIDE the decision
promulgated on November 28, 2008 by the Court of Appeals in its CA-G.R. No. 87295; and
ORDER Atty. MA. ROSARIO MANALANG-DEMIGILLO to pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice




Associate Justice
CERTIFICATION

Chief Justice
Footnotes
1
Rollo (G.R. No. 168613), p. 280.
2
Id. at 113-114 (as quoted in Civil Service Commission Resolution No. 041092).
3
Id. at 114.
4
Id. at 115.
5
Id.
6
Id. at 116.
7
Id.
8
Id. at 108-133.
9
An Act to Protect the Security of Tenure of Civil Service Officers and Employees in the
Implementation of Government Reorganization (Approved June 10, 1998).
10
Rollo (G.R. No. 168613), p. 88.
11
Rollo, (G.R. No. 185571), pp. 50-51.
12
Rollo (G.R. No. 168613), pp. 10-24; penned by Associate Justice Perlita J. Tria Tirona
(retired), with Associate Justice Delilah Vidallon-Magtolis (retired) and Associate Justice
Jose Reyes, Jr. concurring.
13
Id. at 21-22.
14
Id. at 22.
15
Id. at 23.
16
Rollo (G.R. No. 185571), pp. 12-21; penned by Associate Justice Japar B. Dimaampao,
and concurred in by Associate Justice Noel G. Tijam and Associate Justice Ramon R.
Garcia.
17
Id. at 17-20.
18
Rollo (G.R. No. 168613), p. 35.
19
Id. at 47.
20
Rollo (G.R. No. 185571), pp. 31-32.
21
Rollo (G.R. No. 168613), p. 544.
22
Id. at 463.
23
67 Phil. 451, 463-464 (1939).
24
Section 10. Board of Directors, Composition. – The powers and functions of the
Corporation shall be exercised by a Board of Directors, hereinafter referred to as the
"Board" which shall be composed of nine (9) members, as follows:
a) The Secretary of Finance, who shall be the Chairman of the Board. Whenever
the Secretary of Finance is unable to attend a meeting of the Board, he shall
designate an Undersecretary to attend as his alternate, who shall act as Chairman;
b) The President of the Corporation, who shall be the Vice-Chairman of the

Board, shall assist the Chairman and act in his stead in case of absence or
incapacity;
c) The Secretary of Trade and Industry. Whenever the Secretary of Trade and
Industry is unable to attend a meeting of the Board, he shall designate an
Undersecretary to attend as his alternate;
d) The Governor of the Bangko Sentral ng Pilipinas. Whenever the Governor of
the Bangko Sentral ng Pilipinas is unable to attend a meeting of the Board, he
shall designate a Deputy-Governor as his alternate;
e) The Director-General of the National Economic and Development Authority.

Whenever the Director-General is unable to attend a meeting of the Board, he
shall designate a Deputy-General of the Authority to attend as his alternate;
f) The Chairman of the Philippine Overseas Construction Board. Whenever the

POCB Chairman is unable to attend a meeting of the Board, he shall designate the
POCB Vice-Chairman to attend as his alternate; and
g) Three (3) representatives from the private sector, at least one of which shall
come from the export community, who shall be elected by the ex officio members
of the Board and who shall hold office for a term of not more than two (2)
consecutive years: Provided, That the representative from the private sector
should be of known probity in the sector he represents.
25
Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1,
68-69; NPC Drivers and Mechanics Association (NPC-DAMA) v. National Power
Corporation (NPC), G.R. No. 156208, September 26, 2006, 503 SCRA 138, 149.
26
Mendizabel v. Apao, G.R. No. 143185, February 20, 2006, 482 SCRA 587, 609-610;
Basuel v. Fact-Finding and Intelligence Bureau (FFIB), G.R. No. 143664, June 30, 2006,
494 SCRA 118, 127.
27
Rollo (G.R. No. 168613), p. 441.
28
Id. at 189.
29
See Pantranco North Express, Inc. v. NLRC, G.R. No. 106516, September 21, 1999,
314 SCRA 740, 750; Ignacio v. Civil Service Commission, G.R. No. 163573, July 27,
2005, 464 SCRA 220, 230-231.
30
Rollo (G.R. No. 168613), p. 315.
31
See, Benguet Electric Cooperative v. Fianza. G.R.No. 158606. March 9, 2004, 425
SCRA 41.
32
Section 3 (d) Rule IX Omnibus Rules Implementing Book V of Executive Order No.
292 and other Pertinent Civil Service Laws: "Performance evaluation shall be done every
six months ending on June 30 and December 31 of every year. However, if the
organizational needs require a shorter or longer period, the minimum appraisal period
shall be at least 90 days or three months. No appraisal period shall be longer than one
year."
33
Rollo (G.R. No. 185571), p. 155.
34
Id. at 141-149.
35
Id. at 157.
36
Id. at 155.
36
Rollo (G.R. No.l68613), pp. 256-259.
37
Rollo (G.R. No. 185571) p. 156.
38
Id. at 340.
39
Id.
40
Id. at 155-156.
SUPREME COURT
Manila
EN BANC
G.R. No. 203302 April 11, 2013
MAYOR EMMANUEL L. MALIKSI, Petitioner,

vs.
COMMISSION ON ELECTIONS AND HOMER T. SAQUILAVAN, Respondents.
RESOLUTION
BERSAMIN, J.:
The Court hereby resolves the Extremely Urgent Motion for Reconsideration tiled by petitioner
Emmanuel L. Maliksi against the Court's decision promulgated on March 12, 2013, dismissing
his petition for certiorari assailing the resolution dated September 14, 2012 of the Commission
on Elections (COMELEC) En Bane that sustained the declaration of respondent Homer T.
Saquilayan as the duly elected Mayor of Imus, Cavite.
For clarity, we briefly restate the factual antecedents.
During the 2010 Elections, the Municipal Board of Canvassers proclaimed Saquilayan the
winner for the position of Mayor of Imus, Cavite. Maliksi, the candidate who garnered the
second highest number of votes, brought an election protest in the Regional Trial Court (RTC) in
Imus, Cavite alleging that there were irregularities in the counting of votes in 209 clustered
precincts. Subsequently, the RTC held a revision of the votes, and, based on the results of the
revision, declared Maliksi as the duly elected Mayor of Imus commanding Saquilayan to cease
and desist from performing the functions of said office. Saquilayan appealed to the COMELEC.
In the meanwhile, the RTC granted Maliksi’s motion for execution pending appeal, and Maliksi
was then installed as Mayor.
In resolving the appeal, the COMELEC First Division, without giving notice to the parties,
decided to recount the ballots through the use of the printouts of the ballot images from the CF
cards. Thus, it issued an order dated March 28, 2012 requiring Saquilayan to deposit the amount
necessary to defray the expenses for the decryption and printing of the ballot images. Later, it
issued another order dated April 17, 2012 for Saquilayan to augment his cash deposit.
On August 15, 2012, the First Division issued a resolution nullifying the RTC’s decision and
declaring Saquilayan as the duly elected Mayor.1
Maliksi filed a motion for reconsideration, alleging that he had been denied his right to due
process because he had not been notified of the decryption proceedings. He argued that the resort
to the printouts of the ballot images, which were secondary evidence, had been unwarranted
because there was no proof that the integrity of the paper ballots had not been preserved.
On September 14, 2012, the COMELEC En Banc resolved to deny Maliksi’s motion for
reconsideration.2
Maliksi then came to the Court via petition for certiorari, reiterating his objections to the
decryption, printing, and examination of the ballot images without prior notice to him, and to the
use of the printouts of the ballot images in the recount proceedings conducted by the First
Division.1âwphi1
In the decision promulgated on March 12, 2013, the Court, by a vote of 8-7, dismissed Maliksi’s
petition for certiorari. The Court concluded that Maliksi had not been denied due process
because: (a) he had received notices of the decryption, printing, and examination of the ballot
images by the First Division — referring to the orders of the First Division directing Saquilayan
to post and augment the cash deposits for the decryption and printing of the ballot images; and
(b) he had been able to raise his objections to the decryption in his motion for reconsideration.
The Court then pronounced that the First Division did not abuse its discretion in deciding to use
the ballot images instead of the paper ballots, explaining that the printouts of the ballot images
were not secondary images, but considered original documents with the same evidentiary value
as the official ballots under the Rule on Electronic Evidence; and that the First Division’s finding
that the ballots and the ballot boxes had been tampered had been fully established by the large
number of cases of double-shading discovered during the revision.
In his Extremely Urgent Motion for Reconsideration, Maliksi raises the following arguments, to
wit:
I.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY
ERRED IN DISMISSING THE INSTANT PETITION DESPITE A CLEAR VIOLATION OF
PETITIONER’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW CONSIDERING
THAT DECRYPTION, PRINTING AND EXAMINATION OF THE DIGITAL IMAGES OF
THE BALLOTS, WHICH IS THE BASIS FOR THE ASSAILED 14 SEPTEMBER 2012
RESOLUTION OF THE PUBLIC RESPONDENT, WHICH IN TURN AFFIRMED THE 15
AUGUST 2012 RESOLUTION OF THE COMELEC FIRST DIVISION, WERE DONE
INCONSPICUOUSLY UPON A MOTU PROPRIO DIRECTIVE OF THE COMELEC FIRST
DIVISION SANS ANY NOTICE TO THE PETITIONER, AND FOR THE FIRST TIME ON
APPEAL.
II.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY
ERRED IN UPHOLDING THE COMELEC FIRST DIVISION’S RULING TO DISPENSE
WITH THE PHYSICAL BALLOTS AND RESORT TO THEIR DIGITAL IMAGES
NOTWITHSTANDING THE FACT THAT THE BALLOTS ARE THE BEST AND MOST
CONCLUSIVE EVIDENCE OF THE VOTERS’ WILL, AND THAT BALLOT IMAGES CAN
BE RESORTED TO ONLY IF THE OFFICIAL BALLOTS ARE LOST OR THEIR
INTEGRITY WAS COMPROMISED AS DETERMINED BY THE RECOUNT/REVISION
COMMITTEE, CIRCUMSTANCES WHICH ARE WANTING IN THIS CASE, AND IN
FACT THE INTEGRITY OF THE BALLOT BOXES AND ITS CONTENTS WAS
PRESERVED AND THE ISSUE OF TAMPERING WAS ONLY BELATEDLY RAISED BY
THE PRIVATE RESPONDENT AFTER THE REVISION RESULTS SHOWED THAT HE
LOST.
III.
WITH ALL DUE RESPECT, IT IS THE HUMBLE SUBMISSION OF THE PETITIONER-

MOVANT THAT THE 12 MARCH 2013 RESOLUTION ISSUED BY THE HONORABLE
SUPREME COURT EN BANC IS NULL AND VOID AB INITIO AND THEREFORE OF NO
FORCE AND EFFECT, FOR HAVING BEEN PROMULGATED DESPITE THE ABSENCE
OF HONORABLE SUPREME COURT JUSTICE JOSE PORTUGAL PEREZ AT THE TIME
OF THE DELIBERATION AND VOTING ON THE 12 MARCH 2013 RESOLUTION IN THE
INSTANT CASE.3
Maliksi insists: (a) that he had the right to be notified of every incident of the proceedings and to
be present at every stage thereof; (b) that he was deprived of such rights when he was not
informed of the decryption, printing, and examination of the ballot images by the First Division;
(c) that the March 28, 2012 and April 17, 2012 orders of the First Division did not sufficiently
give him notice inasmuch as the orders did not state the date, time, and venue of the decryption
and printing of the ballot images; and (d) that he was thus completely deprived of the opportunity
to participate in the decryption proceedings.
Maliksi contends that the First Division’s motu proprio directive for the decryption, printing, and
examination of the ballot images was highly irregular. In this regard, he asserts: (a) that the
decryption, printing, and examination should have taken place during the revision before the trial
court and after the revision committee had determined that the integrity of the official ballots had
not been preserved; (b) that the trial court did not make such determination; (c) that, in fact,
Saquilayan did not allege or present any proof in the RTC to show that the ballots or the ballot
boxes had been tampered, and had, in fact, actively participated in the revision proceedings; (d)
that the First Division should not have entertained the allegation of ballot tampering belatedly
raised on appeal; (e) that the First Division should have limited itself to reviewing the evidence
on record; and (f) that the First Division did not even explain how it had arrived at the conclusion
that the integrity of the ballots had not been preserved.
Maliksi submits that the decision promulgated on March 12, 2013 is null and void for having
been promulgated despite the absence from the deliberations and lack of signature of Justice Jose
Portugal Perez.
Ruling
The Court grants Maliksi’s Extremely Urgent Motion for Reconsideration, and reverses the
decision promulgated on March 12, 2013 on the ground that the First Division of the COMELEC
denied to him the right to due process by failing to give due notice on the decryption and printing
of the ballot images. Consequently, the Court annuls the recount proceedings conducted by the
First Division with the use of the printouts of the ballot images.
It bears stressing at the outset that the First Division should not have conducted the assailed
recount proceedings because it was then exercising appellate jurisdiction as to which no existing
rule of procedure allowed it to conduct a recount in the first instance. The recount proceedings
authorized under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended, are to be
conducted by the COMELEC Divisions only in the exercise of their exclusive original
jurisdiction over all election protests involving elective regional (the autonomous regions),
provincial and city officials.4
As we see it, the First Division arbitrarily arrogated unto itself the conduct of the recount
proceedings, contrary to the regular procedure of remanding the protest to the RTC and directing
the reconstitution of the Revision Committee for the decryption and printing of the picture
images and the revision of the ballots on the basis thereof. Quite unexpectedly, the COMELEC
En Banc upheld the First Division’s unwarranted deviation from the standard procedures by
invoking the COMELEC’s power to "take such measures as the Presiding Commissioner may
deem proper," and even citing the Court’s minute resolution in Alliance of Barangay Concerns
(ABC) Party-List v. Commission on Elections5 to the effect that the "COMELEC has the power
to adopt procedures that will ensure the speedy resolution of its cases. The Court will not
interfere with its exercise of this prerogative so long as the parties are amply heard on their
opposing claims."
Based on the pronouncement in Alliance of Barangay Concerns (ABC) v. Commission on

Elections, the power of the COMELEC to adopt procedures that will ensure the speedy
resolution of its cases should still be exercised only after giving to all the parties the opportunity
to be heard on their opposing claims. The parties’ right to be heard upon adversarial issues and
matters is never to be waived or sacrificed, or to be treated so lightly because of the possibility of
the substantial prejudice to be thereby caused to the parties, or to any of them. Thus, the
COMELEC En Banc should not have upheld the First Division’s deviation from the regular
procedure in the guise of speedily resolving the election protest, in view of its failure to provide
the parties with notice of its proceedings and an opportunity to be heard, the most basic
requirements of due process.
I.
Due process requirements
The picture images of the ballots are electronic documents that are regarded as the equivalents of
the original official ballots themselves.6 In Vinzons-Chato v. House of Representatives Electoral
Tribunal,7 the Court held that "the picture images of the ballots, as scanned and recorded by the
PCOS, are likewise ‘official ballots’ that faithfully capture in electronic form the votes cast by
the voter, as defined by Section 2(3) of R.A. No. 9369. As such, the printouts thereof are the
functional equivalent of the paper ballots filled out by the voters and, thus, may be used for
purposes of revision of votes in an electoral protest."
That the two documents—the official ballot and its picture image—are considered "original
documents" simply means that both of them are given equal probative weight. In short, when
either is presented as evidence, one is not considered as weightier than the other.
But this juridical reality does not authorize the courts, the COMELEC, and the Electoral
Tribunals to quickly and unilaterally resort to the printouts of the picture images of the
ballots in the proceedings had before them without notice to the parties. Despite the equal
probative weight accorded to the official ballots and the printouts of their picture images,
the rules for the revision of ballots adopted for their respective proceedings still consider
the official ballots to be the primary or best evidence of the voters’ will. In that regard, the
picture images of the ballots are to be used only when it is first shown that the official
ballots are lost or their integrity has been compromised.
For instance, the aforesaid Section 6, Rule 15 of COMELEC Resolution No. 8804 (In Re:
Comelec Rules of Procedure on Disputes In An Automated Election System in Connection with
the May 10, 2010 Elections), as amended by COMELEC Resolution No. 9164, itself requires
that "the Recount Committee determines that the integrity of the ballots has been violated or has
not been preserved, or are wet and otherwise in such a condition that (the ballots) cannot be
recounted" before the printing of the image of the ballots should be made, to wit:
xxxx
(g) Only when the Recount Committee, through its chairman, determines that the integrity of the
ballots has been preserved or that no signs of tampering of the ballots are present, will the
recount proceed. In case there are signs that the ballots contained therein are tampered,
compromised, wet or are otherwise in such a condition that it could not be recounted, the
Recount Committee shall follow paragraph (l) of this rule.
xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been
violated or has not been preserved, or are wet and otherwise in such a condition that it cannot be
recounted, the Chairman of the Committee shall request from the Election Records and Statistics
Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the
CF card used in the May 10, 2010 elections in the presence of the parties. Printing of the ballot
images shall proceed only upon prior authentication and certification by a duly authorized
personnel of the Election Records and Statistics Department (ERSD) that the data or the images
to be printed are genuine and not substitutes. (Emphases supplied.)
xxxx
Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal Election
Contests, which governs the proceedings in the Regional Trial Courts exercising original
jurisdiction over election protests, provides:
xxxx
(m) In the event that the revision committee determines that the integrity of the ballots and the
ballot box have not been preserved, as when proof of tampering or substitution exists, it shall
proceed to instruct the printing of the picture image of the ballots stored in the data storage
device for the precinct. The court shall provide a non-partisan technical person who shall
conduct the necessary authentication process to ensure that the data or image stored is genuine
and not a substitute. Only after this determination can the printed picture image be used for the
recount. (Emphases supplied.)
xxxx
A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to wit:
Rule 43. Conduct of the revision. – The revision of votes shall be done through the use of
appropriate PCOS machines or manually and visually, as the Tribunal may determine, and
according to the following procedures:
xxxx
(q) In the event that the RC determines that the integrity of the ballots and the ballot box was not
preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the
printing of the picture image of the ballots of the subject precinct stored in the data storage
device for the same precinct. The Tribunal may avail itself of the assistance of the COMELEC
for the service of a non-partisan technical person who shall conduct the necessary authentication
process to ensure that the data or images stored are genuine and not merely substitutes. It is only
upon such determination that the printed picture image can be used for the revision of votes.
(Emphases supplied.)
xxxx
Also, the House of Representative Electoral Tribunal’s Guidelines on the Revision of Ballots
requires a preliminary hearing to be held for the purpose of determining whether the integrity of
the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when there
is proof of tampering or substitutions, to wit:
Section 10. Revision of Ballots
xxxx
(d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that
the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not
preserved, as when there is proof of tampering or substitutions, the Tribunal shall direct the
printing of the picture images of the ballots of the subject precinct stored in the data storage
device for the same precinct. The Tribunal shall provide a non-partisan technical person who
shall conduct the necessary authentication process to ensure that the data or image stored is
genuine and not a substitute. It is only upon such determination that the printed picture image
can be used for the revision. (As amended per Resolution of February 10, 2011; Emphases
supplied.)
xxxx
All the foregoing rules on revision of ballots stipulate that the printing of the picture images of
the ballots may be resorted to only after the proper Revision/Recount Committee has first
determined that the integrity of the ballots and the ballot boxes was not preserved.
The foregoing rules further require that the decryption of the images stored in the CF cards and
the printing of the decrypted images take place during the revision or recount proceedings. There
is a good reason for thus fixing where and by whom the decryption and the printing should be
conducted. It is during the revision or recount conducted by the Revision/Recount Committee
when the parties are allowed to be represented, with their representatives witnessing the
proceedings and timely raising their objections in the course of the proceedings. Moreover,
whenever the Revision/Recount Committee makes any determination that the ballots have been
tampered and have become unreliable, the parties are immediately made aware of such
determination.
When, as in the present case, it was not the Revision/Recount Committee or the RTC exercising
original jurisdiction over the protest that made the finding that the ballots had been tampered, but
the First Division in the exercise of its appellate jurisdiction, the parties should have been given a
formal notice thereof.
Maliksi was not immediately made aware of that crucial finding because the First Division did
not even issue any written resolution stating its reasons for ordering the printing of the picture
images. The parties were formally notified that the First Division had found that the ballots had
been tampered only when they received the resolution of August 15, 2012, whereby the First
Division nullified the decision of the RTC and declared Saquilayan as the duly elected Mayor.
Even so, the resolution of the First Division to that effect was unusually mute about the factual
bases for the finding of ballot box tampering, and did not also particularize how and why the
First Division was concluding that the integrity of the ballots had been compromised. All that the
First Division declared as justification was a simple generalization of the same being apparent
from the allegations of ballot and ballot box tampering and upon inspection of the ballot boxes,
viz:
xxxx
The Commission (First Division) took into consideration the allegations of ballot and ballot box
tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had
been compromised so, to be able to best determine the true will of the electorate, we decided to
go over the digital image of the appealed ballots.8 (Emphasis supplied)
xxxx
It was the COMELEC En Banc’s assailed resolution of September 14, 2012 that later on
provided the explanation to justify the First Division’s resort to the picture images of the ballots,
by observing that the "unprecedented number of double-votes" exclusively affecting the position
of Mayor and the votes for Saquilayan had led to the belief that the ballots had been tampered.
However, that explanation by the COMELEC En Banc did not cure the First Division’s lapse and
did not erase the irregularity that had already invalidated the First Division’s proceedings.
In his dissenting opinion, Justice Antonio T. Carpio advances the view that the COMELEC’s
finding of ballot tampering was a mere surplusage because there was actually no need for such
finding before the ballots’ digital counterparts could be used. He cites Section 3, Rule 16 of
COMELEC Resolution No. 8804, as amended by Resolution No. 9164, which states:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a
motion to be approved by the Division of the Commission requesting for the printing of ballot
images in addition to those mentioned in the second paragraph of item (e). Parties concerned
shall provide the necessary materials in the printing of images such as but not limited to copying
papers, toners and printers. Parties may also secure, upon prior approval by the Division of the
Commission, a soft copy of the ballot images contained in a secured/hashed disc on the condition
that the ballot images be first printed, at the expense of the requesting party, and that the printed
copies be signed by the parties’ respective revisors or representatives and by an ERSD IT-
capable representative and deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics
Department (ERSD), for the printing of images. Said director shall in turn designate a personnel
who will be responsible in the printing of ballot images.
Justice Carpio posits that when a party files a motion for the printing of the ballots that he or she
deems necessary, there is actually no need for a finding of tampering of the ballots or the ballot
boxes before the COMELEC Division may grant the motion. He states that a determination by
the parties that the printing is necessary under Section 3 is a ground separate from Section 6(e),
which in turn pertinently states that:
Section 6. Conduct of the Recount –
xxxx
(e) Before the opening of the ballot box, the Recount Committee shall note its condition as well
as that of the locks or locking mechanism and record the condition in the recount report. From its
observation, the Recount Committee must also make a determination as to whether the integrity
of the ballot box has been preserved.
In the event that there are signs of tampering or if the ballot box appears to have been
compromised, the Recount Committee shall still proceed to open the ballot box and make a
physical inventory of the contents thereof. The committee shall, however, record its general
observation of the ballots and other documents found in the ballot box.
The application of Section 3 to this case is inappropriate, considering that the First Division did
not in any way suggest in its decision dated August 15, 2010 that it was resolving Saquilayan’s
motion to print the ballot images. Instead, the First Division made therein a finding of tampering,
thus:
The COMELEC (First Division) took into consideration the allegations of ballot and ballot box
tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had
been compromised so, to be able to best determine the true will of the electorate, we decided to
go over the digital images of the appealed ballots.
Even the COMELEC En Banc did not indicate in its decision dated September 14, 2012 that the
First Division merely resolved Saquilayan’s motion for the printing of the ballot images; instead,
it reinforced the First Division’s finding that there was tampering of the ballots. The non-
mention of Saquilayan’s motion was a clear indication of the COMELEC’s intention to act motu
proprio; and also revealed its interpretation of its very own rules, that there must be justifiable
reason, i.e. tampering, before the ballot images could be resorted to.
The application of Section 3 would only highlight the First Division’s denial of Maliksi’s right to
due process. For, if the First Division was really only acting on a motion to allow the printing of
the ballot images, there was a greater reason for the First Division to have given the parties
notice of its ruling thereon. But, as herein noted, the First Division did not issue such ruling.
To interpret Section 3 as granting to any one of the parties the right to move for the printing of
the ballot images should such party deem it necessary, and the COMELEC may grant such
motion, is contrary to its clear wording. Section 3 explicitly states: "in case the parties deem it
necessary, they may file a motion." The provision really envisions a situation in which both
parties have agreed that the ballot images should be printed. Should only one of the parties move
for the printing of the ballot images, it is not Section 3 that applies but Section 6(e), which then
requires a finding that the integrity of the ballots has been compromised.
The disregard of Maliksi’s right to be informed of the decision to print the picture images of the
ballots and to conduct the recount proceedings during the appellate stage cannot be brushed aside
by the invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration.
To be exact, the motion for reconsideration was actually directed against the entire resolution of
the First Division, while Maliksi’s claim of due process violation is directed only against the
First Division’s recount proceedings that resulted in the prejudicial result rendered against him.
Notably, the First Division did not issue any order directing the recount. Without the written
order, Maliksi was deprived of the chance to seek any reconsideration or even to assail the
irregularly-held recount through a seasonable petition for certiorari in this Court. In that context,
he had no real opportunity to assail the conduct of the recount proceedings.
The service of the First Division orders requiring Saquilayan to post and augment the cash
deposits for the printing of the picture images did not sufficiently give Maliksi notice of the First
Division’s decision to print the picture images. The said orders did not meet the requirements of
due process because they did not specifically inform Maliksi that the ballots had been found to
be tampered. Nor did the orders offer the factual bases for the finding of tampering. Hence, to
leave for Maliksi to surmise on the factual bases for finding the need to print the picture images
still violated the principles of fair play, because the responsibility and the obligation to lay down
the factual bases and to inform Maliksi as the party to be potentially prejudiced thereby firmly
rested on the shoulders of the First Division.
Moreover, due process of law does not only require notice of the decryption, printing, and
recount proceedings to the parties, but also demands an opportunity to be present at such
proceedings or to be represented therein. Maliksi correctly contends that the orders of the First
Division simply required Saquilayan to post and augment his cash deposit. The orders did not
state the time, date, and venue of the decryption and recount proceedings. Clearly, the First
Division had no intention of giving the parties the opportunity to witness its proceedings.
Mendoza v. Commission on Elections9 instructs that notice to the parties and their participation
are required during the adversarial aspects of the proceedings. In that case, after the revision of
the ballots and after the election protest case was submitted for decision, the ballots and ballot
boxes were transferred to the Senate Electoral Tribunal (SET) in connection with a protest case
pending in the SET. Mendoza later learned that the COMELEC, with the permission of the SET,
had meanwhile conducted proceedings within the SET’s premises. Mendoza then claimed that
his right to due process was violated because he had not been given notice by the COMELEC
that it would be conducting further proceedings within the SET premises. The Court did not
sustain his claim, however, and pointed out:
After consideration of the respondents’ Comments and the petitioner’s petition and Reply, we
hold that the contested proceedings at the SET ("contested proceedings") are no longer part of
the adversarial aspects of the election contest that would require notice of hearing and the
participation of the parties. As the COMELEC stated in its Comment and without any contrary or
disputing claim in the petitioner’s Reply:
"However, contrary to the claim of petitioner, public respondent in the appreciation of the
contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is
not conducting "further proceedings" requiring notice to the parties. There is no revision or
correction of the ballots because EPC No. 2007-04 was already submitted for resolution. Public
respondent, in coordinating with the SET, is simply resolving the submitted protest case before
it. The parties necessarily take no part in said deliberation, which require utmost secrecy.
Needless to state, the actual decision-making process is supposed to be conducted only by the
designated members of the Second Division of the public respondent in strict confidentiality."
In other words, what took place at the SET were the internal deliberations of the COMELEC, as
a quasi-judicial body, in the course of appreciating the evidence presented and deciding the
provincial election contest on the merits. These deliberations are no different from judicial
deliberations which are considered confidential and privileged. We find it significant that the
private respondent’s Comment fully supported the COMELEC’s position and disavowed any
participation in the contested proceeding the petitioner complained about. The petitioner, on the
other hand, has not shown that the private respondent was ever present in any proceeding at the
SET relating to the provincial election contest.1âwphi1
To conclude, the rights to notice and to be heard are not material considerations in the
COMELEC’s handling of the Bulacan provincial election contest after the transfer of the ballot
boxes to the SET; no proceedings at the instance of one party or of COMELEC has been
conducted at the SET that would require notice and hearing because of the possibility of
prejudice to the other party. The COMELEC is under no legal obligation to notify either party of
the steps it is taking in the course of deliberating on the merits of the provincial election contest.
In the context of our standard of review for the petition, we see no grave abuse of discretion
amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on
the Bulacan election contest and the appreciation of ballots this deliberation entailed.10
(Emphasis supplied.)
Here, the First Division denominated the proceedings it had conducted as an "appreciation of
ballots" like in Mendoza. But unlike in Mendoza, the proceedings conducted by the First
Division were adversarial, in that the proceedings included the decryption and printing of the
picture images of the ballots and the recount of the votes were to be based on the printouts of the
picture images. The First Division did not simply review the findings of the RTC and the
Revision Committee, but actually conducted its own recount proceedings using the printouts of
the picture image of the ballots. As such, the First Division was bound to notify the parties to
enable them to participate in the proceedings.
Significantly, Section 6(l), Rule 15 of COMELEC Resolution No, 8804, as amended by

COMELEC Resolution No. 9164, requires the parties’ presence during the printing of the images
of the ballots, thus:
xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been
violated or has not been preserved, or are wet and otherwise in such a condition that it cannot be
recounted, the Chairman of the Committee shall request from the Election Records and Statistics
Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the
CF card used in the May 10, 2010 elections in the presence of the parties. Printing of the ballot
images shall proceed only upon prior authentication and certification by a duly authorized
personnel of the Election Records and Statistics Department (ERSD) that the data or the images
to be printed are genuine and not substitutes.
xxxx
We should not ignore that the parties’ participation during the revision and recount proceedings
would not benefit only the parties, but was as vital and significant for the COMELEC as well, for
only by their participation would the COMELEC’s proceedings attain credibility as to the result.
The parties’ presence would have ensured that the requisite procedures have been followed,
including the required authentication and certification that the images to be printed are genuine.
In this regard, the COMELEC was less than candid, and was even cavalier in its conduct of the
decryption and printing of the picture images of the ballots and the recount proceedings. The
COMELEC was merely content with listing the guidelines that the First Division had followed in
the appreciation of the ballots and the results of the recount. In short, there was vagueness as to
what rule had been followed in the decryption and printing proceeding.
II.
Remand to the COMELEC
We are mindful of the urgent need to speedily resolve the election protest because the term of the
position involved is about to end. Thus, we overlook pro hac vice the lack of factual basis for the
COMELEC’s decision to use the digital images of the ballots and sustain its decision thereon.
Although a remand of the election protest to the RTC would have been the appropriate
procedure, we direct the COMELEC En Banc instead to conduct the decryption and printing of
the digital images of the ballots and to hold recount proceedings, with due notice to all the parties
and opportunity for them to be present and to participate during such proceedings. Nothing less
serves the ideal objective safeguarded by the Constitution.
In the absence of particular rules to govern its proceedings in accordance with this disposition,
the COMELEC is urged to follow and observe Rule 15 of COMELEC Resolution No. 8804, as
amended by COMELEC Resolution No. 9164.
The Court, by this resolution, does not intend to validate the victory of any of the parties in the
2010 Elections. That is not the concern of the Court as yet. The Court simply does not want to
countenance a denial of the fundamental right to due process, a cornerstone of our legal system.11
After all, it is the Court’s primary duty to protect the basic rights of the people vis-à-vis
government actions, thus:
It cannot be denied that most government actions are inspired with noble intentions, all geared
towards the betterment of the nation and its people. But then again, it is important to remember
this ethical principle: "The end does not justify the means." No matter how noble and worthy of
admiration the purpose of an act, but if the means to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it cannot still be allowed. The Court cannot
just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its
enshrined principles.12
WHEREFORE, the Court PARTIALLY GRANTS the Extremely Urgent Motion for
Reconsideration of petitioner Emmanuel Maliksi; REVERSES the Court's decision promulgated
on March 12, 2013; and DIRECTS the Commission on Elections En Bane to conduct
proceedings for the decryption of the picture images of the ballots involved in the protest after
due authentication, and for the recount of ballots by using the printouts of the ballot images, with
notice to and in the presence of the parties or their representatives in accordance with the
procedure laid down by Rule 15 of COMELEC Resolution No. 8804, as amended by Resolution
No. 9164.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice





Associate Justice
CERTIFICATION
I certify that the conclusions in the above Resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

Chief Justice
Footnotes
1
Rollo, p. 125.
2
Id. at 63
3
Id. at 575-577.
4
COMELEC Resolution No. 8804, Rule 6, Section 1.
5
G.R. No. 199050, August 28, 2012.
6
2010 Rules of Procedure for Municipal Election Contests, Rule 1, Section 3(r) defines
"electronic document" as follows:
xxxx
(r) Electronic document—refers to the record of information or the representation

of information, data, figures, symbols or other modes of written expression,
described or however represented, by which a fact may be proved and affirmed,
which is received, recorded, transmitted, stored, processed, retrieved or produced
electronically. It includes digitally-signed documents and any printout or output,
readable by sight or other means that accurately reflects the electronic document.
For purposes of these Rules, an electronic document refers to either the picture
image of the ballots or the electronic copies of the electronic returns, the
statements of votes, the certificates of canvass, the audit log, and other electronic
data processed by the PCOS and consolidation machines.
xxxx
Likewise, COMELEC Resolution No. 8804 (In Re: COMELEC Rules of

Procedure on Disputes in an Automated Election System in Connection with the
May 10, 2010 Elections), Rule 2, Section 1(q) defines "electronic document" as
follows:
xxxx
(q) Electronic document refers to information or the representation of

information, data, figures, symbols or other modes of written expression,
described or however represented, by which a fact may be proved and affirmed,
which is received, recorded, transmitted, stored, processed, retrieved or produced
electronically. It includes digitally signed documents and any print-out or output,
readable by sight or other means which accurately reflects the electronic
document.
For purposes of these Rules, electronic documents refer to either the picture
image of the ballots and the electronic copies of the electronic returns, the
statements of votes, the certificates of canvass, the audit log, and of the other
electronic data relative to the processing done by the PCOS machines and the
various consolidation machines.
xxxx
7
G.R. No. 199149, January 22, 2013.
8
Rollo, p. 102.
9
G. R. No. 188308, October 15, 2009, 603 SCRA 692.
10
Id. at 716-717.
11
Pinlac v. Court of Appeals, G.R. No. 91486, January 19, 2001, 349 SCRA 635, 653.
12
Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7,
2010, 637 SCRA 78, 177.
DISSENTING OPINION
CARPIO, J.:
For the Court's consideration is the Extremely Urgent Motion for Reconsideration filed by
Emmanuel L. Maliksi (Maliksi) assailing this Court's 12 March 2013 Decision which affirmed
the 14 September 2012 Resolution of the Commission on Elections (COMELEC) En Bane and
declared Homer T. Saquilayan (Saquilayan) as the duly-elected Municipal Mayor of lmus,
Cavite.
In his motion for reconsideration, Maliksi cited extensively from the Dissenting Opinion1 and
asserted that he was denied due process when the COMELEC First Division decrypted, printed,
and examined the ballot images without notice to him. Maliksi further alleged that this Court's 12
March 2013 Decision is null and void for having been promulgated in the absence of Associate
Justice Jose Portugal Perez (Justice Perez).
First, I will discuss the issue of the absence of Justice Perez when the Court's 12 March 2013
Decision was promulgated.
Section 4, Rule 12 of the Internal Rules of the Supreme Court allows a member of this Court to
leave his or her vote in writing. The Rule states:
SEC. 4. Leaving a vote. - A Member who goes on leave or is unable to attend the voting on any
decision, resolution, or matter may leave his or her vote in writing, addressed to the Chief Justice
or the Division Chairperson, and the vote shall be counted, provided that he or she took part in
the deliberation.
As such, there was nothing irregular when Justice Perez left his vote in writing with the Chief
Justice because he took part in the previous deliberation of the case.
Maliksi again assails the decryption and printing of the ballot images for the first time on appeal.
I reiterate that Saquilayan first requested for the printing of the ballot images before the trial
court when he filed a Motion To Print Picture Images Of The Ballot Boxes Stored In The
Memory Cards Of The Clustered Precincts2 dated 21 March 2011. In that Motion, Saquilayan
made the allegation of tampering citing that during the preliminary revision proceedings, he
noticed an unusually large number of double-voted ballots only for the position of Mayor and
that the recorded counts of all the revision committees show significant discrepancies between
the ballot counts and the results reflected in the election returns.3 It was only on 3 May 2011 that
the trial court in an Omnibus Order granted Saquilayan's motion for the printing of the ballot
images in the CF cards.4 On 16 May 2011, the COMELEC Election Records and Statistics
Department (ERSD) informed Saquilayan that the CF cards were still in the custody of the trial
court. In a Manifestation and Request5 dated 20 May 2011, Saquilayan asked the trial court to
forward the CF cards of the protested precincts to the ERSD to enable the COMELEC to decrypt
and print the ballot images. The decryption of the ballot images was set on 21 June 2011.
Maliksi then filed a Motion for Honorable Court to Request ERSD to Specify Procedure to
Decrypt Compact Flash (CF) Cards. The trial court, in an Order6 dated 17 June 2011, requested
the ERSD to specify the procedure that it would undertake during the proceedings and set the
case for conference on 27 June 2011. In a letter7 dated 20 June 2011, Maliksi wrote the ERSD
requesting that further proceedings be deferred and held in abeyance in deference to the 17 June
2011 Order of the trial court. On 27 June 2011, on the date the case was set for conference,
Maliksi filed a Motion to Consider That Period Has Lapsed to Print Ballot's Picture Images8 on
the ground that Saquilayan only had 30 days from receipt of the Omnibus Order dated 3 May
2011 to accomplish the printing of the ballot images. Maliksi alleged that the 30-day period
started on 10 May 2011 when Saquilayan received the 3 May 2011 Omnibus Order and ended on
22 June 2011. Thus, Saquilayan was already barred from having access to the electronic data in
the COMELEC's back-up server and to print the ballot images in the CF cards. The trial court
granted Maliksi's motion in its Order dated 3 August 20119 despite the fact that the delay in the
decryption could not be attributed to Saquilayan's fault alone but also due to the failure of the
trial court to turn over the CF cards to the ERSD and to Maliksi's motion for the ERSD to specify
the procedure in decrypting the CF cards. Clearly, the issue of tampering, as well as the request
for the decryption of the ballot images, was not raised for the first time on appeal.
Maliksi also echoed the Dissenting Opinion that the printing of the ballot images may only be
resorted to after the proper Revision/Recount Committee had first determined that the integrity
of the ballots and the ballot boxes was not preserved. Citing Section 6, Rule 15 of COMELEC
Resolution No. 8804,10 as amended by Resolution No. 9164,11 Maliksi alleged that the
decryption of the images stored in the CF cards and the printing of the decrypted images must
take place during the revision or recount proceedings and that it should be the Revision/Recount
Committee that determines whether the ballots are unreliable.
Section 6, Rule 1 5 should be read together with Rule 16 of Resolution No. 8804, as amended by
Resolution No. 9164, particularly Section 3, which provides:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a
motion to be approved by the Division of the Commission requesting for the printing of ballot
images in addition to those mentioned in the second paragraph of item (e). Parties concerned
shall provide the necessary materials in the printing of images such as but not limited to copying
papers, toners and printers. Parties may also secure, upon prior approval by the Division of the
Commission, a soft copy of the ballot images contained in a secured/hashed disc on the condition
that the ballot images be first printed, at the expense of the requesting party, and that the printed
copies be signed by the parties' respective revisors or representatives and by an ERSD IT-capable
representative and deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics
Department (ERSD), for the printing of images. Said director shall in turn designate a personnel
who will be responsible in the printing of ballot images. (Emphasis supplied)
Section 3, Rule 16 does not require any allegation of tampering before the printing of ballot
images may be requested by the parties. It does not require prior determination by the
Revision/Recount Committee that the integrity of the ballots and the ballot boxes was not
preserved. Under Section 3, Rule 16, the request may be made when the parties deem the
printing of the ballot images necessary.
To repeat, the parties can request for the printing of the ballot images "in case the parties deem it
necessary." This is a ground separate from that in Section 6( e), which refers to a determination
of the integrity of the ballots by the Revision/Recount Committee. Section 3, Rule 16 provides
that "in case the parties deem it necessary, they may file a motion to be approved by the Division
of the Commission requesting for the printing of ballot images in addition to those mentioned in
t11e second paragraph of item (e)." The second paragraph of item (e) speaks of signs of
tampering, or if the ballot box appears to have been compromised, thus:
Section 6. Conduct of the Recount- x x x.
xxxx
(e) Before the opening of the ballot box, the Recount Committee shall note its condition as well
as that of the locks or locking mechanism and record the condition in the recount report. From its
observation, the Recount Committee must also make a determination as to whether the integrity
of the ballot box has been preserved.
In the event that there are signs of tampering or if the ballot box appears to have been
compromised, the Recount Committee shall still proceed to open the ballot box and make a
physical inventory of the contents thereof. The committee shall, however, record its general
observation of the ballots and other documents found in the ballot box. (Emphasis supplied)
Section 3, Rule 16 allows an additional ground for the printing of the ballot images: the
determination by the parties that the printing is necessary. Clearly, even without signs of
tampering or that the integrity of the ballots and the ballot boxes had been compromised, the
parties may move for the printing of the ballot images. In this case, the COMELEC En Bane
made it clear in its Comment12 that the COMELEC First Division ordered the decryption,
printing and examination of the digital images because the COMELEC First Division
"discovered upon inspection that the integrity of the ballots themselves was compromised and
that the ballot boxes were tampered."13 However, applying Section 3 of Rule 16, the finding of
tampering was not even necessary for the COMELEC First Division to allow the printing
of the ballot images.
Saquilayan moved for the printing of the ballot images as early as 21 March 2011 before the trial
court. Saquilayan reiterated his motion to have the ballot images printed when he filed his appeal
brief14 before the COMELEC First Division. Saquilayan pointed out that he filed reiterations of
his motion to print with copies furnished to Maliksi until the COMELEC First Division ordered
the printing.15 There is nothing in the records which showed that Maliksi opposed Saquilayan's
motion.
Section 3, Rule 9 of Resolution No. 8808 provides:
Section 3. No hearings on motions. - Motions shall not be set for hearing unless the Commission
directs otherwise. Oral argument in support thereof shall be allowed only upon the discretion of
the Commission. The adverse party may file opposition five days from receipt of the motion,
upon the expiration of which such motion is deemed submitted for resolution. The Commission
shall resolve the motion within five days. (Emphasis supplied)
When Maliksi did not oppose Saquilayan's motion for the printing of the ballot images, he is
deemed to have waived his right to oppose the motion. The motion was deemed submitted for
resolution. The COMELEC En Bane categorically stated that Maliksi "never questioned the
Order of decryption of the First Division nor did he raise any objection in any of the pleadings he
filed with this Commission - a fact which already places him under estoppel."16 Maliksi could
not claim that he was denied due process because he was not aware of the decryption
proceedings. The Order17 dated 28 March 2012 where the COMELEC First Division directed
Saquilayan to deposit the required amount for expenses for the supplies, honoraria, and fee for
the decryption of the CF cards was personally delivered to Maliksi's counsel. The Order18 dated
17 April 2012 where the COMELEC First Division required Saquilayan to deposit an additional
amount for expenses for the printing of additional ballot images from four clustered precincts
was again personally delivered to Maliksi's counsel. Maliksi feigned ignorance of the decryption
proceedings until he received the COMELEC First Division's Resolution of 15 August 2012.
As regards Maliksi's claim that he was deprived of his right to be present during the
authentication process and the actual printing of the ballot images, Section 3 of Resolution No.
8804, as amended by Resolution No. 9164, does not require the parties or their representatives to
be present during the printing of the ballot images. Maliksi should have moved to be present at,
or to observe, the decryption proceedings when he received the 28 March 2012 Order directing
the decryption. Maliksi did not, and thus he waived whatever right he had to be present at, or to
observe, the decryption proceedings.
I emphasize that there is no denial of due process where there is opportunity to be heard, either
through oral arguments or pleadings.19 Further, the fact that a party was heard on his motion for
reconsideration negates any violation of the right to due process.20 Maliksi's motion for
reconsideration was directed against the entire resolution of the First Division, including the
recount proceedings which he claimed to have violated his right to due process.
Maliksi alleged that the COMELEC First Division should have limited itself to reviewing the
evidence on record, meaning the physical ballots, instead of using the decrypted images. Maliksi
thus wanted the COMELEC First Division to ignore its finding of tampering. On this issue, the
COMELEC En Bane stressed:
x x x. Worth noting also is that these 8,387 ballots all came from 53 clustered precincts
specifically pinpointed by Maliksi as his pilot precincts (which is 20% of the total precincts he
protested) - thereby affecting a total of 33.38% or more than one-third (1/3) of the total ballots
cast in those precincts. We find this too massive to have not been detected on election day, too
specific to be random and too precise to be accidental -which leaves a reasonable mind no other
conclusion except that those 8,387 cases of double-shading were purposely machinated. These
dubious and highly suspicious circumstances left us with no other option but to dispense with the
physical ballots and resort to their digital images. To recount the tampered ballots will only yield
us tampered results defeating the point of this appeal.21
In his Reflections submitted to this Court, Justice Perez stated that the present electoral contest is
all about over-voting. Justice Perez cited Guideline No. 5 used by the COMELEC which states:
5. On over-voting. It has been the position of the Commission that over-voting in a certain
position will make the vote cast for that position stray but will not invalidate the entire ballot, so
in case of over-voting for the contested position, such vote shall be considered stray and will not
be credited to any of the contending parties.
Justice Perez added that "in case of over-voting which is the case at hand, Guideline No. 5 out
rightly provides- the consequence that the vote shall be considered stray and will not be credited
to any of the contending parties." Justice Perez stated that the COMELEC disobeyed its own rule
that over-voting results in a stray vote.
This case is not a case of over-voting under Guideline No. 5. In over-voting under Guideline No.
5, one person, that is, the voter himself, votes for two or more persons for one elective position.
When the ballot is fed to the PCOS machine, the machine reads that two or more candidates for
the same position had been shaded. The digital image will record two spaces shaded for one
position. On the other hand, in double-shading, the voter shades the space for one candidate but
another person, after the ballot is fed to the PCOS machine, surreptitiously shades another space
for another candidate for the same position. In double-shading, the digital image shows only one
shaded space for a candidate while the ballot shows two shaded spaces. In the present case, there
was actually a double-shading (although it was inaccurately referred to as over-voting in the
COMELEC First Division's Decision) which was done by person or persons other than the voter.
When the ballot was fed to the PCOS machine, the machine read only one vote for one candidate
for one position. After the double-shading, there were already two votes for two candidates for
the same position, but the digital image still contains only one shaded space.
Here, the double-shading happened after the ballots were fed to and read by the PCOS machines
because the digital images show only one shaded space while the ballots show two shaded
spaces. Double-shading is a post-election operation. The double-shading covered 8,387 ballots,
"exclusively affecting the position of Mayor and specifically affecting the ballots of
Saquilayan"22 and the 8,387 affected ballots surprisingly all came from 53 clustered precincts
"specifically pinpointed by Maliksi as his pilot precincts."23
The situation here is the one covered by Guideline No. 2 cited by Justice Perez which states that
"the best way to identity if a ballot has been tampered is to go to the digital image of the ballot as
the PCOS was able to capture such when the ballot was fed by the voter into the machine when
he cast his vote." This is what the COMELEC First Division did and the COMELEC First
Division discovered that there was no double-shading in the digital images of the ballots.
Obviously, the double-shading was done by persons other than the voters.
Again, Saquilayan raised the issue of tampering of the ballots as early as 21 March 2011 before
the trial court. The COMELEC First Division took into consideration the allegation of
tampering. Even without the allegation of tampering, Section 3, Rule 16 of Resolution No. 8804,
as amended by Resolution No. 9164, allows the parties to request for the printing of the ballot
images if the parties deem it necessary. It is undisputed that Saquilayan requested the
COMELEC for the printing of the ballot images and Maliksi did not file any opposition to
Saquilayan's motions. Upon inspection of the ballots and ballot boxes, the COMELEC First
Division found that the integrity of the ballots had been compromised. When the digital images
of the ballots were examined, the COMELEC First Division found that there was no double-
shading. As such, the ballots should not be considered stray under Guideline No. 5.
ACCORDINGLY, I vote to DENY with FINALITY the Extremely Urgent Motion for
Reconsideration filed by Emmanuel L. Maliksi.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1
Penned by Associate Justice Lucas P. Bersamin.
2
Rollo, pp. 283-285.
3
Id. at 283.
4
Id. at 293-295.
5
Id. at 298-300.
6
Id.at302-303.
7
Id. at 304.
8
Id. at 307-309.
9
Id. at 359. Omnibus Order elated 1 September 2011.
10
In Re: Comelec Rules of Procedure on Disputes In An Automated Election System in
Connection with the May 10, 2010 Elections.
11
In the Matter of Reinstating and Reimplementing Comelec Resolution No. 8804 with
Amendments.
12
Rollo, pp. 484-516.
13
Id. at 500.
14
Id. at 237, Saquilayan's Comment, p. 25.
15
Id.
16
Id. at 61.
17
Id. at 362.
18
Id. at 366.
19
Atty. Octava v. Commission on Elections. 547 Phil 647 (2007).
20
See German Management & 5'ervices, Inc. v. Court of Appeals, 258 Phil. 289 ( 1989).
21
Rollo, p. 60.
22
Id.
23
Id.

CONCURRING OPINION
PEREZ, J.:
The issue as basic as due process of law and the opinion of as many as seven of us who saw that
petitioner was deprived of the fundamental right highlights my duty to join the discussion. With
the present motion for reconsideration providing the opportunity to look into the reasons that
divided the Court, I do so.
1. The electoral contest is all about over-voting. Simply, it means that in the contested ballots
both the slots separately for petitioner Maliksi and respondent Saquilayan who vied for the
position of Mayor of Imus, Cavite, were shaded. The guideline in the appreciation of ballots with
over-voting is embodied in Guideline No. 5 used by the COMELEC. Thus:
5. On over-voting. It has been the position of the Commission that over-voting in a certain
position will make the vote cast for that position STRAY but will not invalidate the entire ballot,
so IN CASE OF OVER-VOTING FOR THE CONTESTED POSITION, SUCH VOTE SHALL
BE CONSIDERED STRAY AND WILL NOT BE CREDITED TO ANY OF THE
CONTENDING PARTIES. (Emphasis supplied)
There is a correlated guideline, Guideline No. 2, in the sense that both guidelines refer to
instances of shading. However, as regards the covered matter and the consequence, the two rules
are hugely different. Guideline No. 2 is about an entire ballot that is claimed to have been shaded
by two or more persons, and it states:
2. On ballots claimed to have been shaded by two or more persons. -Unlike in manual elections
where it is easy to identify if a ballot has been written by two persons, in case of an automated
election, it would be very hard if not impossible to identify if two persons shaded a single ballot.
The best way to identify if a ballot has been tampered is to go to the digital image of the ballot as
the PCOS machine was able to capture such when the ballot was Jed by the voter into the
machine when he cast his vote. In the absence of any circumstance showing that the ballot was
shaded by persons other than the voter, the ballots should not be rejected to give effect to the
voter's intent.
Clearly, in case of a ballot claimed to have been shaded by two or more persons, there is an
inquiry to determine whether or not the ballot was shaded by person/s, other than the voter. The
Guideline implies a presumption in favor of shading by the voter whose ballot should be rejected
only if there is "any circumstance" showing shading by somebody else.
On the contrary, in case of over-voting which is the case at hand, Guideline No. 5 out rightly
provides the consequence that the vote shall be considered stray and will not be credited to any
of the contending parties.
The reason behind the significant variance in the consequences of the two kinds of shading can
be debated endlessly. The obviousness of the difference outlined by the COMELEC, which is the
sole judge of an election contest, forecloses such a debate. What the obviousness brings about, as
it is my intention, is the grave abuse of discretion on the part of the COMELEC.
The COMELEC disobeyed its own rule that over-voting results in a stray vote. Relying on
"allegations of ballot and ballot box tampering," which allegations are without proof from the
proponent, the COMELEC nonetheless favors the allegations through its own inspection of the
ballot boxes to support its conclusion that "it is apparent that the integrity of the ballots had been
compromised." That was done on the first review of the appealed decision. On second review,
the COMELEC resorted to the observation of "unprecedented number of double-votes" which
left it "with no other option but to dispense with the physical ballots and resort to their digital
image."
The grave abuse of discretion of the COMELEC is clear from its own words describing what it
did in this case.
It can be implied from its own decision on first review that the COMELEC agrees that before the
physical ballots can be disregarded and the digital image favored, the tampering of the ballot box
must be priorly proven. It had to allude to ballot box tampering because without the defect, the
integrity of the ballots is unassailable. No proof of tampering came from the contestants in this
case. The COMELEC relied on its observations. And it did not even detail the circumstances of
the inspection it made and the facts that make tampering "apparent."
Indeed, the over-voting itself cannot be the proof of ballot tampering. Even if we go by the
Guideline on the claim of ballot shading by two or more persons, the presumption is that the
ballot was shaded only by the voter, and this presumption prevails absent any circumstance
showing that the ballot was shaded by persons other than the voter. Plainly, in the instant case,
there is no circumstance independent of the fact of shading that such shading was done by
someone other than the voter. Its odd reliance on the over-voting itself underscores the
applicability of the presumption that, in this case, the voter himself/herself did the shadings.
The fact is that petitioner has in his Election Protest, come forward with an explanation about
over-voting. Thus:
4.A.6. In Official Sample Ballot with Voters Information Sheet (VIS) issued by the Commission
on Elections, the number four candidate for Mayor of lmus, Cavite is Emmanuel L. Maliksi
which appears on the first row, third column in the said COMELEC official sample ballot, x x x.
However, in the Official Ballot, the name of Emmanuel L. Maliksi appears on the second row,
second column as number four candidate and the name of the fifth candidate Homer T.
Saquilayan was moved from the first row fourth column to first row third column where the
name of Emmanuel L. Maliksi was originally located on the sample ballot, x x x. This evidently
resulted in the confusion and mistake in the shading of the proper space for mayoralty candidate
Emmanuel L. Maliksi.
This proposition was evidently found tenable by the trial court which, upon the opening of the
ballot boxes and ballots, applied the guideline that the over-votes are stray votes. That
proposition based on facts reached the COMELEC via appeal. It should have at least merited a
discussion.
2. 1 concur with the ponencia of Justice Bersamin. I discussed the lack of factual and legal
premise for the decryption done by the COMELEC to punctuate its grave abuse of discretion that
even went further and similarly characterized the process of decryption itself.
I thus join Justice Bersamin in the remand of this case to the COMELEC for immediate
cleansing of the process, which after all, kindred to the purpose of Justice Bersamin, is the object
of my participation in the resolution of this contest, not the pleasure of anyone of the contestants.
JOSE PORTUGAL PEREZ

Associate Justice
SUPREME COURT
Manila
EN BANC
A.M. No. CA-13-51-J July 2, 2013
RE: LETTER COMPLAINT OF MERLITA B. FABIANA AGAINST PRESIDING

JUSTICE ANDRES B. REYES, JR., ASSOCIATE JUSTICES ISAIAS P. DICDICAN
AND STEPHEN C. CRUZ; CARAG JAMORA SOMERA AND VILLAREAL LAW
OFFICES AND ITS LAWYERS ATTYS. ELPIDIO C. JAMORA, JR. AND BEATRIZ O.
GERONILLA-VILLEGAS, LAWYERS FOR MAGSAYSAY MARITIME
CORPORATION AND VISAYAN SURETY AND INSURANCE CORPORATION.
DECISION
BERSAMIN, J.:
This administrative matter stems from the claim for death benefits by the heirs of the late Marlon
Fabiana (heirs of Fabiana) against manning agent Magsaysay Maritime Corporation and its
principal Air Sea Holiday GMBH-Stable Organizations Italia.
Complainant Merlita B. Fabiana, Marlon’s surviving spouse, hereby accuses Court of Appeals
(CA) Presiding Justice Andres B. Reyes, Jr., Associate Justice Isaias P. Dicdican and Associate
Justice Stephen C. Cruz, as the former Members of the CA’s First Division, of having openly
defied the resolution promulgated by the Court on January 13, 2010 in G.R. No. 189726 entitled
Heirs of the Late Marlon A. Fabiana, [herein represented by Merlita B. Fabiana] v. Magsaysay
Maritime Corp., et al., whereby the Court had allegedly "fixed with finality complainant’s claims
for death benefits and other monetary claims, including damages and attorney’s fees, against the
Maritime Company arising from the death of her husband."1
The relevant antecedents follow.
On December 19, 2007, the Labor Arbiter granted the following claims to the heirs of Fabiana,
to wit:
WHEREFORE, considering all the foregoing premises, respondents are liable to pay the
following to the complainants:
US $82,500.00 death benefits to complainant Merlita B. Fabiana;
US $16,500.00 to complainant Jomari Paul B. Fabiana;
Salary differentials from July 17, 2006 to April 23, 2007 computed at US $1,038 deducting the
US $424.00 monthly salaries already paid by the respondents;
The difference of 1,500.00 Euro contributed by fellow Filipino seafarer and US $1,000 remitted
by respondents computed at the rate of exchange at the time of payment;
Sick benefits from April 23, 2007 to May 11, 2007 computed at US $1,038.00 monthly salary
rate;
US $331.00 guaranteed overtime pay;
P7,574.00 actual damages;
P100,000.00 for moral damages;
P1,000,000.00 exemplary damages;
Ten percent (10%) attorney’s fees computed on the total awards.2
On December 10, 2008, the National Labor Relations Commission (NLRC) rendered its
decision,3 disposing:
WHEREFORE, foregoing premises considered, the appeal is MODIFIED in the sense that the
award of moral and exemplary damages are reduced to P50,000.00 each while the other awards
are AFFIRMED.
SO ORDERED.
The parties then separately brought their respective petitions for certiorari to the CA,
specifically:
(a)
C.A.-G.R. SP No. 109382 entitled Heirs of the late Marlon A. Fabiana, herein represented by
Merlita B. Fabiana v. National Labor Relations Commission, Magsaysay Maritime Corporation
and Air Sea Holiday GMBH-Stab[i]le Organizations Italia (Hotel), assailing the jurisdiction of
the NLRC in entertaining the appeal of Magsaysay Maritime Corporation and its principal, and
seeking the reinstatement of the moral and exemplary damages as awarded by the Labor Arbiter
(first petition);4 and
(b)
C.A.-G.R. SP No. 109699 entitled Magsaysay Maritime Corporation, Eduardo Manese,

Prudential Guarantee (Surety), and Air Sea Holiday GMBH-Stable Organizations, Italia v. Heirs
of the late Marlon Fabiana, and National Labor Relations Commission challenging the propriety
of the monetary awards granted to the heirs of Fabiana (second petition).5
In the second petition, the petitioners averred that the late Marlon Fabiana had died from a non-
work related disease after his employment contract had terminated.
On August 20, 2009, when the heirs of Fabiana filed their comment vis-à-vis the second petition,
they sought the consolidation of the two petitions. Their request for consolidation was not acted
upon, however, but was soon mooted a month later by the First Division of the CA promulgating
its decision on the first petition (C.A.-G.R. No. 109382) on September 29, 2009,6 to wit:
WHEREFORE, premises considered, the petition is partly GRANTED. Accordingly, the

challenged Decision is AFFIRMED but MODIFIED insofar as interest at the rate of six percent
per annum (6% p.a.) is imposed on all the monetary awards, reckoned from the Labor Arbiter’s
judgment on 19 December 2007, except moral and exemplary damages to which the same rate of
interest is imposed, but reckoned from the time the aforementioned decision was promulgated on
10 December 2008 by the NLRC Sixth Division. An additional interest of twelve percent per
annum (12% p.a.) is applied on the total amount ultimately awarded upon finality of the decision
until fully paid.
The petitioners’ motion for preliminary mandatory injunction is deemed resolved by this
decision.
IT IS SO ORDERED.
Magsaysay Maritime Corporation filed on October 25, 2009 a motion for clarification in C.A.-
G.R. No. 109382 instead of a motion for reconsideration.7 In response, the CA issued its
clarification on November 26, 2009 by stating that the "affirmance with modification" was but
the "consequence of the certiorari petition being merely ‘partially granted.’"8
On their part, the heirs of Fabiana filed a motion for reconsideration in C.A.-G.R. No. 109382,
which the CA denied. Hence, on November 23, 2009, they appealed to the Court by petition for
review on certiorari (G.R. No. 189726). However, the Court, through the Third Division,9 denied
the petition for review on certiorari through the resolution of January 13, 2010,10 quoted as
follows:
Acting on the petition for review on certiorari assailing the Decision dated 29 September 2009 of
the Court of Appeals in CA-G.R. SP No. 109382, the Court resolves to DENY the petition for
failure to sufficiently show that the appellate court committed any reversible error in the
challenged decision as to warrant the exercise by this Court of its discretionary appellate
jurisdiction.
A careful consideration of the petition indicates a failure of the petitioners to show any cogent
reason why the actions of the Labor Arbiter, the National Labor Relations Commission and the
Court of Appeals which have passed upon the same issue should be reversed. Petitioners failed to
show that their factual findings are not based on substantial evidence or that their decisions are
contrary to applicable law and jurisprudence.
SO ORDERED.
In the meanwhile, on October 16, 2009, the heirs of Fabiana moved to dismiss the second
petition (C.A.-G.R. SP. No. 109699) on the ground that the intervening promulgation on
September 29, 2009 by the First Division of the decision on the first petition (C.A.-G.R. No.
109382) had rendered the second petition moot and academic.11
On June 4, 2010, however, the First Division of the CA, then comprised by Presiding Justice
Reyes, Jr., Associate Justice Dicdican (ponente) and Associate Justice Cruz, denied the motion to
dismiss filed in C.A.-G.R. SP. No. 109699,12 holding thusly:
This has reference to the motion filed by the private respondents, through their counsel, to
dismiss the petition in the case at bench on the ground that it has been rendered moot and
academic by the decision promulgated on September 29, 2009 by this Court in CA-G.R. SP No.
109382.
After a judicious scrutiny of the whole matter, we find the said motion to dismiss to be wanting
in merit. It is not true that the petition in this case has been rendered moot and academic by the
decision promulgated by this Court on September 29, 2009 in CA-G.R. SP No. 109382. The said
decision rendered by this Court passed upon two limited issues only, namely, the NLRC’s
jurisdiction to allow the petitioners’ appeal thereto despite flaws in their verification and non-
forum shopping papers and the propriety of the reduction by the NLRC of the amount of
damages awarded to the private respondents. A reading of the said decision will unmistakably
bear this out. However, in the case at bench, the petitioners have assailed omnibously the
NLRC’s awards in favor of the private respondents for death benefits, sickness allowance, salary
differentials and other monetary claims. We have to pass upon the propriety of all these
monetary awards.
WHEREFORE, in view of the foregoing premises, we hereby DENY the aforementioned motion
to dismiss filed in this case.
We hereby give the parties a fresh period of fifteen (15) days from notice hereof within which to
file memoranda in support of their respective sides of the case.
SO ORDERED.
The second petition (C.A.-G.R. SP. No. 109699) was ultimately resolved on September 16, 2011
by the Sixth Division of the CA, composed of Associate Justice Amelita G. Tolentino, Associate
Justice Normandie B. Pizarro (ponente) and Associate Justice Rodil V. Zalameda, dismissing the
petition upon not finding the NLRC to have gravely abused its discretion.
As earlier adverted to, the complainant accuses Presiding Justice Reyes, Jr., Associate Justice
Dicdican and Associate Justice Cruz with thereby willfully disobeying the resolution of January
13, 2010 promulgated by the Court.
The complaint lacks merit.
In administrative proceedings, the burden of substantiating the charges falls on the complainant
who must prove her allegations in the complaint by substantial evidence.13 Here, the allegation of
willful disobedience against respondent CA Justices was unsubstantiated and baseless. The
issues raised in the first petition (C.A.-G.R. No. 109382) were limited to the NLRC’s jurisdiction
over the appeal by Magsaysay Maritime Corporation and its principal, and to the reduction of the
amounts awarded as moral and exemplary damages. In contrast, the second petition (C.A.-G.R.
SP. No. 109699) concerned only the propriety of awarding monetary benefits. Under the
circumstances, the promulgation by the Court of the resolution of January 13, 2010 in G.R. No.
189726 did not divest the respondents as members of the First Division of the CA of the
jurisdiction to entertain and pass upon the second petition (C.A.-G.R. SP. No. 109699),
something that they sought to explain through their resolution promulgated on June 4, 2010. The
explanation, whether correct or not, was issued in the exercise of judicial discretion. It is not for
us to say now in a resolution of this administrative complaint whether the explanation was
appropriate or not, nor for the complainant to herself hold them in error. The recourse open to the
heirs of Fabiana, including the complainant, was to move for the correction of the resolution, if
they disagreed with it, and, should their motion be denied, to assail the denial in this Court
through the remedy warranted under the law.
The complainant’s initiation of her complaint would take respondent Justices to task for their
regular performance of their office. Yet, as the surviving spouse of the late-lamented Marlon, she
was understandably desirous of the most favorable and quickest outcome for the claim for death
benefits because his intervening demise had rendered her and her family bereft of his support.
Regardless of how commendable were her motives for initiating this administrative complaint,
however, she could not substitute a proper judicial remedy not taken with an improper
administrative denunciation of the Justices she has hereby charged. That is impermissible. If she
felt aggrieved at all, she should have resorted to the available proper judicial remedy, and
exhausted it, instead of resorting to the unworthy disciplinary charge.
Truly, disciplinary proceedings and criminal actions brought against any Judge or Justice in
relation to the performance of official functions are neither complementary to nor suppletory of
appropriate judicial remedies, nor a substitute for such remedies.14 The Court has fittingly
explained why in In Re: Joaquin T. Borromeo,15 to wit:
Given the nature of the judicial function, the power vested by the Constitution in the Supreme
Court and the lower courts established by law, the question submits to only one answer: the
administrative or criminal remedies are neither alternative nor cumulative to judicial review
where such review is available, and must wait on the result thereof.
Simple reflection will make this proposition amply clear, and demonstrate that any contrary
postulation can have only intolerable legal implications. Allowing a party who feels aggrieved by
a judicial order or decision not yet final and executory to mount an administrative, civil or
criminal prosecution for unjust judgment against the issuing judge would, at a minimum and as
an indispensable first step, confer the prosecutor (Ombudsman) with an incongruous function
pertaining, not to him, but to the courts: the determination of whether the questioned disposition
is erroneous in its findings of fact or conclusions of law, or both. If he does proceed despite that
impediment, whatever determination he makes could well set off a proliferation of administrative
or criminal litigation, a possibility hereafter more fully explored.
Such actions are impermissible and cannot prosper. It is not, as already pointed out, within the
power of public prosecutors, or the Ombudsman or his deputies, directly or vicariously, to
review judgments or final orders or resolutions of the Courts of the land. The power of review—
by appeal or special civil action—is not only lodged exclusively in the Courts themselves but
must be exercised in accordance with a well-defined and long established hierarchy, and long
standing processes and procedures. No other review is allowed; otherwise litigation would be
interminable, and vexatiously repetitive.
Moreover, in Re: Verified Complaint of Engr. Oscar L. Ongjoco, Chairman of the Board/CEO of
FH-Gymn Multi-Purpose and Transport Service Cooperative, against Hon. Juan Q. Enriquez, Jr.,
Hon. Ramon M. Bato, Jr. and Hon. Florito S. Macalino, Associate Justices, Court of Appeals,16
the Court ruminates:
In this regard, we reiterate that a judge’s failure to correctly interpret the law or to properly
appreciate the evidence presented does not necessarily incur administrative liability, for to hold
him administratively accountable for every erroneous ruling or decision he renders, assuming he
has erred, will be nothing short of harassment and will make his position doubly unbearable. His
judicial office will then be rendered untenable, because no one called upon to try the facts or to
interpret the law in the process of administering justice can be infallible in his judgment.
Administrative sanction and criminal liability should be visited on him only when the error is so
gross, deliberate and malicious, or is committed with evident bad faith, or only in clear cases of
violations by him of the standards and norms of propriety and good behavior prescribed by law
and the rules of procedure, or fixed and defined by pertinent jurisprudence.1âwphi1
To be clear, although we do not shirk from the responsibility of imposing discipline on the erring
Judges or Justices and employees of the Judiciary, we shall not hesitate to shield them from
baseless charges that only serve to disrupt rather than promote the orderly administration of
justice.17
Even as we dismiss the administrative charge, we deem it necessary to observe further, in the
exercise of our administrative supervision over the CA, that the matter addressed here was really
simple and avoidable if only the CA had promptly implemented its current procedure for the
consolidation of petitions or proceedings relating to or arising from the same controversies.
Section 3(a), Rule III of the 2009 Internal Rules of the Court of Appeals has forthrightly
mandated the consolidation of related cases assigned to different Justices, viz:
Section 3. Consolidation of Cases. – When related cases are assigned to different justices, they
shall be consolidated and assigned to one Justice.
(a) Upon motion of a party with notice to the other party/ies, or at the instance of the Justice to
whom any or the related cases is assigned, upon notice to the parties, consolidation shall ensue
when the cases involve the same parties and/or related questions of fact and/or law. (Emphases
supplied)
xxxx
A perusal of the two petitions showed that they involved the same parties and the same facts.
Even their issues of law, albeit not entirely identical, were closely related to one another. It could
not also be denied that they assailed the same decision of the NLRC. For these reasons alone, the
request for consolidation by the heirs of Fabiana should have been granted, and the two petitions
consolidated in the same Division of the CA.
The consolidation of two or more actions is authorized where the cases arise from the same act,
event or transaction, involve the same or like issues, and depend largely or substantially on the
same evidence, provided that the court has jurisdiction and that consolidation will not give one
party an undue advantage or that consolidation will not prejudice the substantial rights of any of
the parties.18 As to parties, their substantial identity will suffice. Substantial identity of parties
exists when there is a community of interest or privity of interest between a party in the first case
and a party in the second, even if the latter has not been impleaded in the first case.19 As to
issues, what is required is mere identity of issues where the parties, although not identical,
present conflicting claims.20 The justification for consolidation is to prevent a judge from
deciding identical issues presented in the case assigned to him in a manner that will prejudice
another judge from deciding a similar case before him.
We are perplexed why the CA did not act on and grant the request for consolidation filed on
August 20, 2009 by the heirs of Fabiana. In fact, the consolidation should have been required as
a matter of course even without any of the parties seeking the consolidation of the petitions,
considering that the two cases rested on the same set of facts, and involved claims arising from
the death of the late Marlon Fabiana.
It is true that under the Rules of Court,21 the consolidation of cases for trial is permissive and a
matter of judicial discretion.22 This is because trials held in the first instance require the
attendance of the parties, their respective counsel and their witnesses, a task that surely entails an
expense that can multiply if there are several proceedings upon the same issues involving the
same parties. At the trial stage, the avoidance of unnecessary expenses and undue vexation to the
parties is the primary objective of consolidation of cases.23 But the permissiveness of
consolidation does not carry over to the appellate stage where the primary objective is less the
avoidance of unnecessary expenses and undue vexation than it is the ideal realization of the dual
function of all appellate adjudications. The dual function is expounded thuswise:
An appellate court serves a dual function. The first is the review for correctness function,
whereby the case is reviewed on appeal to assure that substantial justice has been done. The
second is the institutional function, which refers to the progressive development of the law for
general application in the judicial system.
Differently stated, the review for correctness function is concerned with the justice of the
particular case while the institutional function is concerned with the articulation and application
of constitutional principles, the authoritative interpretation of statutes, and the formulation of
policy within the proper sphere of the judicial function.
The duality also relates to the dual function of all adjudication in the common law system. The
first pertains to the doctrine of res judicata, which decides the case and settles the controversy;
the second is the doctrine of stare decisis, which pertains to the precedential value of the case
which assists in deciding future similar cases by the application of the rule or principle derived
from the earlier case.
With each level of the appellate structure, the review for correctness function diminishes and the
institutional function, which concerns itself with uniformity of judicial administration and the
progressive development of the law, increases.24
In the appellate stage, therefore, the rigid policy is to make the consolidation of all cases and
proceedings resting on the same set of facts, or involving identical claims or interests or parties
mandatory. Such consolidation should be made regardless of whether or not the parties or any of
them requests it. A mandatory policy eliminates conflicting results concerning similar or like
issues between the same parties or interests even as it enhances the administration of justice.
In this connection, the Court reminds all attorneys appearing as counsel for the initiating parties
of their direct responsibility to give prompt notice of any related cases pending in the courts, and
to move for the consolidation of such related cases in the proper courts. This responsibility
proceeds from their express undertakings in the certifications against forum-shopping that
accompany their initiatory pleadings pursuant to Section 5 of Rule 7 and related rules in the
Rules of Court, to the effect that they have not theretofore commenced any actions or filed any
claims involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of
their knowledge, no such other actions or claims are pending therein; that if there were such
other pending actions or claims, to render complete statements of the present status thereof; and
if they should thereafter learn that the same or similar actions or claims have been filed or are
pending, they shall report that fact within five days therefrom to the courts wherein the said
complaints or initiatory pleadings have been filed.
WHEREFORE, the Court DISMISSES the administrative complaint against Presiding Justice
Andres B. Reyes, Jr., Associate Justice Isaias P. Dicdican and Associate Justice Stephen C. Cruz
of the Court of Appeals for its lack of merit.
The Court of Appeals is DIRECTED to forthwith adopt measures that will ensure the strict
observance of Section 3, Rule III of the 2009 Internal Rules of the Court of Appeals, including
the revision of the rule itself to make the consolidation of cases and proceedings concerning
similar or like issues or involving the same parties or interests mandatory and not dependent on
the initiative of the parties or of any of them.
All attorneys of the parties in cases brought to the third level courts either on appeal or
interlocutory review (like certiorari) are REQUIRED to promptly notify the reviewing courts of
the pendency of any other cases and proceedings involving the same parties and issues pending
in the same or other courts.
Let this decision be FURNISHED to the Court of Appeals, Sandiganbayan, Court of Tax
Appeals and the Office of the Court Administrator for their guidance; and to the Integrated Bar
of the Philippines for dissemination to all its chapters.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Del Castillo, Abad,
Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe, and Leonen, JJ., concur.
Footnotes
1
Rollo, p. 2.
2
Id. at 3-4.
3
Id. at 26-35.
4
Id. at 42-59 (entitled Heirs of the Late Marlon A. Fabiana, herein represented by Merlita
B. Fabiana v. National Labor Relations Commission, et al., respondents).
5
Id. at 60-79.
6
Id. at 16-25; penned by Associate Justice Apolinario D. Bruselas, Jr., with the
concurrence of Presiding Justice Conrado M. Vasquez, Jr. (retired) and Associate Justice
Jose C. Reyes, Jr.
7
Id. at 82-85.
8
Id. at 86.
9
Associate Justice Renato C. Corona, Chairperson; Associate Justice Presbitero J.
Velasco, Jr., Associate Justice Antonio Eduardo B. Nachura, Associate Justice Diosdado
M. Peralta, and Associate Justice Jose C. Mendoza, as Members.
10
Rollo, pp. 14-15.
11
Id. at 87-88.
12
Id. at 94-95.
13
Dayag v. Gonzales, A.M. No. RTJ-05-1903, June 27, 2006, 493 SCRA 51, 60-61.
14
In Re: Wenceslao Laureta, March 12, 1987, 148 SCRA 382, 420, where the Court
stated:
To allow litigants to go beyond the Court’s resolution and claim that the members
acted "with deliberate bad faith" and rendered an "unjust resolution" in disregard
or violation of the duty of their high office to act upon their own independent
consideration and judgment of the matter at hand would be to destroy the
authenticity, integrity and conclusiveness of such collegiate acts and resolutions
and to disregard utterly the presumption of regular performance of official duty.
To allow such collateral attack would destroy the separation of powers and
undermine the role of the Supreme Court as the final arbiter of all judicial
disputes.
15
A.M. No.93-7-696-0, February 21, 1995, 241 SCRA 405, 459-460.
16
A.M. OCA I.P.I. No. 11-184-CA-J, January 31, 2012, 664 SCRA 465, 475-476.
17
Mataga v. Rosete, A.M. No. MTJ-03-1488, October 13, 2004, 440 SCRA 217, 221-
222.
18
Caños v. Peralta, No. L-38352, August 19, 1982, 115 SCRA 843, 846.
19
Heirs of Trinidad De Leon Vda. de Roxas v. Court of Appeals, G.R. No. 138660,
February 5, 2004, 422 SCRA 101, 116.
20
Hacienda Bigaa, Inc. v. Chavez, G.R. No. 174160, April 20, 2010, 618 SCRA 559,
576.
21
For civil trials, the rule on consolidation is Section 1, Rule 31, Rules of Court, which
provides:
Section 1. Consolidation. — When actions involving a common question of law

or fact are pending before the court, it may order a joint hearing or trial of any or
all the matters in issue in the actions; it may order all the actions consolidated;
and it may make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay. (1)
For criminal trials, Section 22, Rule 119, Rules of Court states:
Section 22. Consolidation of trials of related offenses. – Charges for offenses

founded on the same facts or forming part of a series of offenses of similar
character may be tried jointly at the discretion of the court. (14a)
22
Mega-Land Resources and Development Corporation v. C-E Construction Corporation,
G.R. No. 156211, July 31, 2007, 528 SCRA 622, 636; People v. Sandiganbayan, G.R.
No. 149495, August 21, 2003, 409 SCRA 419, 423.
23
Yu, Sr. v. Basilio G. Magno Construction and Development Enterprises, Inc., G.R.
Nos. 138701-02, October 17, 2006, 504 SCRA 618, 631.
24
Bersamin, L.P., Appeal and Review in the Philippines, 2000 (2nd Edition), Central
Professional Books, Inc., Quezon City, p. 355.
SUPREME COURT
Manila
EN BANC
A.M. No. 08-5-305-RTC July 9, 2013
RE: FAILURE OF FORMER JUDGE ANTONIO A. CARBONELL TO DECIDE CASES

SUBMITTED FOR DECISION AND TO RESOLVE PENDING MOTIONS IN THE
REGIONAL TRIAL COURT, BRANCH 27, SAN FERNANDO, LA UNION.
RESOLUTION
BERSAMIN, J.:
This administrative case originates from the judicial audit conducted by the Office of the Court
Administrator (OCA) on March 3 and 4, 2008 in the Regional Trial Court of San Fernando, La
Union, Branch 27, in view of the disability retirement of Presiding Judge Antonio A. Carbonell
on December 31, 2007.
According to the Audit Team’s Report, Branch 27 had a total caseload of 231 cases, consisting
of 147 criminal cases and 84 civil cases, and Judge Carbonell failed to decide 41 criminal cases
(one inherited) and 22 civil cases (four inherited), namely: Criminal Case Nos. 1183, 4559, 5117,
3532, 3672, 5165, 5007, 5946, 6934, 5763, 7014, 5991, 4724, 6311, 6076, 4789, 6297, 5424,
4928, 6403, 6816, 5635, 5666, 5134, 5865, 6284, 6454, 5394, 6770, 5375, 5356, 7557, 5940,
6311, 6333, 7729, 7111, 6325, 6068, 6517, and 7766; and Civil Case Nos. 3009, 4564, 4563,
4714, 3647, 4362, 6041, 4798, 4561, 6989, 2882, 6185, 7153, 7163, LRC 2332, SCA 7198,
7310, 3487, 7327, 7331, 7298, and 7323.1
Judge Carbonell was also reported to have failed to resolve pending motions or incidents in four
criminal cases and 12 civil cases, to wit: Criminal Case Nos. 7559, 6409, 7787, and 7788; and
Civil Case Nos. 4793, LRC 1308, 7064, 4973, SP 2901, SP 2952, AC 1797, 7100, 7152, 7060,
SP 2986, and SP 2987.2
In a Memorandum dated May 15, 2008, the OCA recommended to the Court that a fine of
P50,000.00 be imposed upon Judge Carbonell for gross inefficiency for failing to promptly
decide the cases and to resolve pending motions and incidents.3
On June 17, 2008, the Court directed the Clerk of Court to furnish Judge Carbonell with a copy
of the Audit Team’s Report, and ordered him to submit his comment on the report within ten
days from notice.4
Not having received the comment from Judge Carbonell despite the lapse of the time given, the
Court resolved on September 21, 2010 to require him to show cause why he should not be
disciplinarily dealt with or held in contempt.5
Judge Carbonell replied,6 stating that he had incorporated his comment/compliance to the June
17, 2008 resolution in the letter dated July 17, 2008 (Re: Very Urgent Request for Release of
Disability Retirement Benefits and Money Value of Accrued Leave Credits) he had sent to Chief
Justice Reynato S. Puno.7 He remarked that the Court had actually granted his request for the
payment of his disability retirement benefits subject to the retention of P200,000.00 pending
resolution of the pending administrative cases against him.8
In his July 17, 2008 letter to Chief Justice Puno, Judge Carbonell surmised that the Audit Team
might have overlooked the fact that he had inherited some of the undecided cases from the
predecessor judge; that said cases had no transcripts of stenographic notes, because of which he
was impelled to require the parties to submit their respective memoranda; that the cases would
only be considered submitted for decision after the parties would have filed their respective
memoranda; and that he had undergone a quadruple heart bypass operation in 2005 that had
adversely affected his pace in deciding the cases.
On November 23, 2010, the Court referred Judge Carbonell’s letter to the OCA for evaluation,
report, and recommendation.9
In its Memorandum dated February 2, 2011,10 the OCA reiterated its recommendation to impose
a fine of P50,000.00 on Judge Carbonell, noting that he had failed to render any valid reason for
his delay in deciding the cases submitted for decision and in resolving the pending motions or
incidents in other cases. The OCA noted that only five cases submitted for decision had been
inherited; and that the case records did not bear any requests for extension of time or any
directive for the transcription of stenographic notes. It stressed that heavy caseload would not
justify the failure to promptly decide and resolve cases because he could have simply asked the
Court for an extension of time.
The recommendation of the OCA is well-taken, subject to the modification of the penalty to be
imposed.
As a frontline official of the Judiciary, a trial judge should at all times act with efficiency and
probity. He is duty-bound not only to be faithful to the law, but also to maintain professional
competence. The pursuit of excellence ought always to be his guiding principle. Such dedication
is the least that he can do to sustain the trust and confidence that the public have reposed in him
and the institution he represents.11
The Court cannot overstress its policy on prompt disposition or resolution of cases.12 Delay in
the disposition of cases is a major culprit in the erosion of public faith and confidence in the
judicial system, as judges have the sworn duty to administer justice without undue delay.13 Thus,
judges have been constantly reminded to strictly adhere to the rule on the speedy disposition of
cases and observe the periods prescribed by the Constitution for deciding cases, which is three
months from the filing of the last pleading, brief or memorandum for lower courts.14 To further
impress upon judges such mandate, the Court has issued guidelines (Administrative Circular No.
3-99 dated January 15, 1999) that would insure the speedy disposition of cases and has therein
reminded judges to scrupulously observe the periods prescribed in the Constitution.
Nonetheless, the Court has been mindful of the plight of our judges and understanding of
circumstances that may hinder them from promptly disposing of their businesses. Hence, the
Court has allowed extensions of time to decide cases beyond the 90-day period. All that a judge
needs to do is to request and justify an extension of time to decide the cases, and the Court has
almost invariably granted such request.
Judge Carbonell failed to decide a total of 63 cases and to resolve 16 pending motions or
incidents within the 90-day reglementary period. He intimated that his poor health affected his
pace in deciding the cases. Had such been the case, then he should have explained his
predicament to the Court and asked for an extension of time to decide the cases. Unfortunately,
he failed to do so.
Judge Carbonell claims that some of the inherited cases had no transcripts of stenographic notes,
thereby preventing him from resolving the cases on time. He posits that a case would not be
considered submitted for decision if the parties did not yet file their respective
memoranda.1âwphi1
The Audit Team’s Report shows that, in an apparent attempt to suspend the running of the 90-
day period to decide the cases, Judge Carbonell liberally gave the parties in most of the overdue
cases several extensions of time to file their respective memoranda. Some extensions were even
for indefinite periods, with the parties being simply given "ample time to file their memo," as the
relevant court orders stated.
In view of the foregoing, Judge Carbonell’s excuses are futile in the light of the following
provisions of Administrative Circular No. 28, dated July 3, 1989, viz:
(3)
A case is considered submitted for decision upon the admission of the evidence of the parties at
the termination of the trial. The ninety (90) days period for deciding the case shall commence to
run from submission of the case for decision without memoranda; in case the Court requires or
allows its filing, the case shall be considered submitted for decision upon the filing of the last
memorandum or the expiration of the period to do so, whichever is earlier. Lack of transcript of
stenographic notes shall not be a valid reason to interrupt or suspend the period for deciding the
case unless the case was previously heard by another judge not the deciding judge in which case
the latter shall have the full period of ninety (90) days from the completion of the transcripts
within which to decide the same.
(4)
The court may grant extension of time to file memoranda, but the ninety (90) day period for
deciding shall not be interrupted thereby.
Without a doubt, Judge Carbonell’s failure to decide several cases within the reglementary
period, without justifiable and credible reasons, constituted gross inefficiency, warranting the
imposition of administrative sanctions,15 like fines. The fines imposed have varied in each case,
depending chiefly on the number of cases not decided within the reglementary period and other
factors, including the presence of aggravating or mitigating circumstances like the damage
suffered by the parties from the delay, the health condition and age of the judge, etc.16 Thus, in
one case, the Court mitigated the liability of a Judge who had been suffering from illnesses and
who had later retired due to disability, and imposed upon him a fine of P20,000.00 for failure to
decide 31 cases.17
Considering that Judge Carbonell similarly retired due to disability, the Court believes that his
poor health condition greatly contributed to his inability to efficiently perform his duties as a trial
judge. That mitigated his administrative liability, for which reason the Court reduces the
recommended penalty of fine from P50,000.00 to P20,000.00.
WHEREFORE, Retired Judge Antonio A. Carbonell is ORDERED to pay a fine of P20,000.00

to be deducted from the P200,000.00 that was withheld from his retirement benefits, and the
balance to be immediately released to him.
SO ORDERED.
Sereno, C.J. Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Del Castillo, Abad,
Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe, and Leonen, JJ., concur.
Brion, J., on leave.
Footnotes
1
Rollo, pp. 2-14.
2
Id.
3
Id. at 15.
4
Id. at 76.
5
Id. at 82.
6
Id. at 84-85.
7
Id. at 86-87.
8
Claim for Disability Retirement Benefits of Hon. Antonio A. Carbonell, former Judge,
Regional Trial Court, Branch 27, San Fernando, La Union, A.M. No. 12815-Ret.,
September 24, 2008.
9
Rollo, p. 98.
10
Id. at 102-103.
11
Juson v. Mondragon, A.M. No. MTJ-07-1685, September 3, 2007, 532 SCRA 1, 13.
12
Id. at 12.
13
Office of the Court Administrator v. Castañeda, A.M. No. RTJ-12-2316, October 9,
2012, 682 SCRA 321, 343.
14
Section 15(1), Article VIII of the Constitution.
15
Re: Report on the Judicial Audit and Physical Inventory of Pending Cases in the
MTCC, Branch 1 and the RTC, Branch 57, both in Lucena City, A.M. No. 96-7-257-
RTC, December 2, 1999, 319 SCRA 507, 512.
16
Re: Report on the Judicial Audit Conducted in RTC, Branches 29 and 59, Toledo City,
A.M. No. 97-9-278-RTC, July 8, 1998, 292 SCRA 8, 23.
17
Supra note 15.
SUPREME COURT
Manila
EN BANC
A.C. No. 6664 July 16, 2013
FERDINAND A. SAMSON, Complainant,

vs.
ATTY. EDGARDO O. ERA, Respondent.
DECISION
BERSAMIN, J.:
An attorney who wittingly represents and serves conflicting interests may be suspended from the
practice of law, or even disbarred when circumstances so warrant.
Antecedents
Ferdinand A. Samson has brought this complaint for disbarment charging respondent Atty.
Edgardo O. Era with violation of his trust and confidence of a client by representing the interest
of Emilia C. Sison, his present client, in a manner that blatantly conflicted with his interest.
Samson and his relatives were among the investors who fell prey to the pyramiding scam
perpetrated by ICS Exports, Inc. Exporter, Importer, and Multi-Level Marketing Business (ICS
Corporation), a corporation whose corporate officers were led by Sison. The other officers were
Ireneo C. Sison, William C. Sison, Mimosa H. Zamudio, Mirasol H. Aguilar and Jhun Sison.
Samson engaged Atty. Era to represent and assist him and his relatives in the criminal
prosecution of Sison and her group. Pursuant to the engagement, Atty. Era prepared the demand
letter dated July 19, 2002 demanding the return or refund of the money subject of their
complaints. He also prepared the complaint-affidavit that Samson signed and swore to on July
26, 2002. Subsequently, the complaint-affidavit charging Sison and the other corporate officials
of ICS Corporation with several counts of estafa1was presented to the Office of the City
Prosecutor of Quezon City (OCPQC). After the preliminary investigation, the OCPQC formally
charged Sison and the others with several counts of estafa in the Regional Trial Court, Branch 96
(RTC), in Quezon City.2
In April 2003, Atty. Era called a meeting with Samson and his relatives to discuss the possibility
of an amicable settlement with Sison and her cohorts. He told Samson and the others that
undergoing a trial of the cases would just be a waste of time, money and effort for them, and that
they could settle the cases with Sison and her group, with him guaranteeing the turnover to them
of a certain property located in Antipolo City belonging to ICS Corporation in exchange for their
desistance. They acceded and executed the affidavit of desistance he prepared, and in turn they
received a deed of assignment covering land registered under Transfer Certificate of Title No. R-
4475 executed by Sison in behalf of ICS Corporation.3
Samson and his relatives later demanded from Atty. Era that they be given instead a deed of
absolute sale to enable them to liquidate the property among themselves. It took some period of
negotiations between them and Atty. Era before the latter delivered to them on November 27,
2003 five copies of a deed of absolute sale involving the property. However, Atty. Era told them
that whether or not the title of the property had been encumbered or free from lien or defect
would no longer be his responsibility. He further told them that as far as he was concerned he
had already accomplished his professional responsibility towards them upon the amicable
settlement of the cases between them and ICS Corporation.4
When Samson and his co-complainants verified the title of the property at the Registry of Deeds
and the Assessor’s Office of Antipolo City, they were dismayed to learn that they could not
liquidate the property because it was no longer registered under the name of ICS Corporation but
was already under the name of Bank Wise Inc.5 Upon their urging, Atty. Era negotiated as their
counsel with ICS Corporation.
Due to the silence of Atty. Era for sometime thereafter, Samson and his group wrote to him on
September 8, 2004 to remind him about his guarantee and the promise to settle the issues with
Sison and her cohorts. But they did not hear from Atty. Era at all.6
During the hearings in the RTC, Atty. Era did not anymore appear for Samson and his group.
This forced them to engage another lawyer. They were shocked to find out later on, however,
that Atty. Era had already been entering his appearance as the counsel for Sison in her other
criminal cases in the other branches of the RTC in Quezon City involving the same pyramiding
scam that she and her ICS Corporation had perpetrated.7 In this regard, they established Atty.
Era’s legal representation of Sison by submitting several certified copies of the minutes of the
proceedings in the criminal cases involving Sison and her group issued by Branch 102 and
Branch 220 of the RTC in Quezon City showing that Atty. Era had appeared as the counsel of
Sison in the cases for estafa pending and being tried in said courts.8 They also submitted a
certification issued on November 3, 2004 indicating that Atty. Era had visited Sison, an inmate in
the Female Dormitory in Camp Karingal, Sikatuna Village, Quezon City as borne out by the
blotter logbook of that unit.9
On January 20, 2005, Samson executed an affidavit alleging the foregoing antecedents, and
praying for Atty. Era’s disbarment on the ground of his violation of the trust, confidence and
respect reposed in him as their counsel.10
Upon being required by the Court to comment on the complaint against him within 10 days from
notice, Atty. Era several times sought the extension of his period to file the comment to
supposedly enable him to collate documents relevant to his comment.11 The Court granted his
request and allowed him an extension totaling 40 days. But despite the lapse of the extended
period, he did not file his comment.
On September 27, 2005, Samson reiterated his complaint for disbarment against Atty. Era.12
By its resolution dated March 1, 2006,13 the Court required Atty. Era to show cause why he
should not be disciplinarily dealt with or held in contempt for such failure to submit his
comment.
In the comment that he subsequently filed on April 11, 2006 in the Office of the Bar Confidant,14
Atty. Era alleged that the conclusion on April 23, 2002 of the compromise settlement between
Samson and his group, on one hand, and Sison and her ICS Corporation, on the other, had
terminated the lawyer-client relationship between him and Samson and his group; and that on
September 1, 2003, he had been appointed as counsel de officio for Sison by Branch 102 of the
RTC in Quezon City only for purposes of her arraignment.
On July 17, 2006, the Court referred the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.15
In his report and recommendation dated October 1, 2007,16 the Investigating Commissioner of
the IBP Commission on Bar Discipline (IBPCBD) found Atty. Era guilty of misconduct for
representing conflicting interests, for failing to serve his clients with competence and diligence,
and for failing to champion his clients’ cause with wholehearted fidelity, care and devotion.
The Investigating Commissioner observed that the evidence did not sustain Atty. Era’s claim that
his legal services as counsel for Samson and his group had terminated on April 23, 2003 upon
the execution of the compromise settlement of the criminal cases; that he even admitted during
the mandatory conference that there was no formal termination of his legal services;17 that his
professional obligation towards Samson and his group as his clients did not end upon execution
of the settlement agreement, because he remained duty-bound to see to it that the settlement was
duly implemented; that he also had the obligation to appear in the criminal cases until their
termination; and that his acceptance of the engagement to appear in behalf of Sison invited
suspicion of his double-dealing and unfaithfulness.
The Investigating Commissioner recommended that Atty. Era be suspended from the practice of
law for six months, viz:
From the foregoing, it is clear that respondent is guilty of misconduct for representing conflicting
interests, failing to serve his client, complainant herein, with competence and diligence and
champion the latter’s cause with wholehearted fidelity, care and devotion. It is respectfully
recommended that respondent be SUSPENDED from the practice of law for a period of six (6)
months and WARNED that a repetition of the same or similar act would merit a more severe
penalty.18
In Resolution No. XVIII-2007-195 passed on October 19, 2007,19 the IBP Board of Governors
adopted and approved the report and recommendation of the Investigating Commissioner of the
IBP-CBD, with the modification that Atty. Era be suspended from the practice of law for two
years.
On June 9, 2012, the IBP Board of Governors passed Resolution No. XX-2012-180,20 denying
Atty. Era’s motion for reconsideration and affirming Resolution No. XVIII-2007-195.
The IBP Board of Governors then forwarded the case to the Court pursuant to Section 12(b),
Rule 139-B of the Rules of Court.21
On October 17, 2012, Atty. Era filed a Manifestation and Motion (With Leave of Court).22
However, on November 26, 2012, the Court merely noted the manifestation, and denied the
motion for its lack of merit.23
Ruling
We affirm the findings of the IBP.
In his petition for disbarment, Samson charged Atty. Era with violating Canon 15 of the Code of
Professional Responsibility for representing conflicting interests by accepting the responsibility
of representing Sison in the cases similar to those in which he had undertaken to represent
Samson and his group, notwithstanding that Sison was the very same person whom Samson and
his group had accused with Atty. Era’s legal assistance. He had drafted the demand letters and
the complaint-affidavit that became the bases for the filing of the estafa charges against Sison
and the others in the RTC in Quezon City.
Atty. Era’s contention that the lawyer-client relationship ended when Samson and his group
entered into the compromise settlement with Sison on April 23, 2002 was unwarranted. The
lawyer-client relationship did not terminate as of then, for the fact remained that he still needed
to oversee the implementation of the settlement as well as to proceed with the criminal cases
until they were dismissed or otherwise concluded by the trial court. It is also relevant to indicate
that the execution of a compromise settlement in the criminal cases did not ipso facto cause the
termination of the cases not only because the approval of the compromise by the trial court was
still required, but also because the compromise would have applied only to the civil aspect, and
excluded the criminal aspect pursuant to Article 2034 of the Civil Code.24
Rule 15.03, Canon 15 of the Code of Professional Responsibility provides that: "A lawyer shall
not represent conflicting interests except by written consent of all concerned given after a full
disclosure of the facts." Atty. Era thus owed to Samson and his group entire devotion to their
genuine interest, and warm zeal in the maintenance and defense of their rights.25 He was
expected to exert his best efforts and ability to preserve the clients’ cause, for the unwavering
loyalty displayed to his clients likewise served the ends of justice.26
In Hornilla v. Atty. Salunat,27 the Court discussed the concept of conflict of interest in this wise:
There is conflict of interest when a lawyer represents inconsistent interests of two or more
opposing parties. The test is "whether or not in behalf of one client, it is the lawyer’s duty to
fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues
for one client, this argument will be opposed by him when he argues for the other client." This
rule covers not only cases in which confidential communications have been confided, but also
those in which no confidence has been bestowed or will be used. Also, there is conflict of
interests if the acceptance of the new retainer will require the attorney to perform an act which
will injuriously affect his first client in any matter in which he represents him and also whether
he will be called upon in his new relation to use against his first client any knowledge acquired
through their connection. Another test of the inconsistency of interests is whether the acceptance
of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity
and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the
performance thereof.28
The prohibition against conflict of interest rests on five rationales, rendered as follows:
x x x. First, the law seeks to assure clients that their lawyers will represent them with undivided
loyalty. A client is entitled to be represented by a lawyer whom the client can trust. Instilling
such confidence is an objective important in itself. x x x.
Second, the prohibition against conflicts of interest seeks to enhance the effectiveness of legal
representation. To the extent that a conflict of interest undermines the independence of the
lawyer’s professional judgment or inhibits a lawyer from working with appropriate vigor in the
client’s behalf, the client’s expectation of effective representation x x x could be compromised.
Third, a client has a legal right to have the lawyer safeguard the client’s confidential information
xxx.1âwphi1 Preventing use of confidential client information against the interests of the client,
either to benefit the lawyer’s personal interest, in aid of some other client, or to foster an
assumed public purpose is facilitated through conflicts rules that reduce the opportunity for such
abuse.
Fourth, conflicts rules help ensure that lawyers will not exploit clients, such as by inducing a
client to make a gift to the lawyer xxx.
Finally, some conflict-of-interest rules protect interests of the legal system in obtaining adequate
presentations to tribunals. In the absence of such rules, for example, a lawyer might appear on
both sides of the litigation, complicating the process of taking proof and compromise adversary
argumentation x x x.29
The rule prohibiting conflict of interest was fashioned to prevent situations wherein a lawyer
would be representing a client whose interest is directly adverse to any of his present or former
clients. In the same way, a lawyer may only be allowed to represent a client involving the same
or a substantially related matter that is materially adverse to the former client only if the former
client consents to it after consultation.30 The rule is grounded in the fiduciary obligation of
loyalty.31 Throughout the course of a lawyer-client relationship, the lawyer learns all the facts
connected with the client's case, including the weak and strong points of the case. Knowledge
and information gathered in the course of the relationship must be treated as sacred and guarded
with care.1âwphi1 It behooves lawyers not only to keep inviolate the client’s confidence, but
also to avoid the appearance of treachery and double-dealing, for only then can litigants be
encouraged to entrust their secrets to their lawyers, which is paramount in the administration of
justice.32 The nature of that relationship is, therefore, one of trust and confidence of the highest
degree.33
Contrary to Atty. Era’s ill-conceived attempt to explain his disloyalty to Samson and his group,
the termination of the attorney-client relationship does not justify a lawyer to represent an
interest adverse to or in conflict with that of the former client. The spirit behind this rule is that
the client’s confidence once given should not be stripped by the mere expiration of the
professional employment. Even after the severance of the relation, a lawyer should not do
anything that will injuriously affect his former client in any matter in which the lawyer
previously represented the client. Nor should the lawyer disclose or use any of the client’s
confidences acquired in the previous relation.34 In this regard, Canon 17 of the Code of
Professional Responsibility expressly declares that: "A lawyer owes fidelity to the cause of his
client and he shall be mindful of the trust and confidence reposed in him."
The lawyer’s highest and most unquestioned duty is to protect the client at all hazards and costs
even to himself.35 The protection given to the client is perpetual and does not cease with the
termination of the litigation, nor is it affected by the client’s ceasing to employ the attorney and
retaining another, or by any other change of relation between them. It even survives the death of
the client.36
In the absence of the express consent from Samson and his group after full disclosure to them of
the conflict of interest, therefore, the most ethical thing for Atty. Era to have done was either to
outrightly decline representing and entering his appearance as counsel for Sison, or to advice
Sison to engage another lawyer for herself. Unfortunately, he did neither, and should now suffer
the proper sanction.
WHEREFORE, the Court FINDS and PRONOUNCES Atty. EDGARDO O. ERA guilty of
violating Rule 15.03 of Canon 15, and Canon 17 of the Code of Professional Responsibility; and
SUSPENDS him from the practice of law for two years effective upon his receipt of this
decision, with a warning that his commission of a similar offense will be dealt with more
severely.
Let copies of this decision be included in the personal record of Atty. EDGARDO 0. ERA and
entered m his file in the Office of the Bar Confidant.
Let copies of this decision be disseminated to all lower courts by the Office of the Court
Administrator, as well as to the Integrated Bar of the Philippines for its guidance.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

CASTRO ARTURO D. BRION*





Associate Justice
Footnotes
* On leave.
1
2
Rollo, Vol. III, p. 4.
3
4
Id. at 2
5
Id. at 96.
6
Id. at 16.
7
Id. at 65-71.
8
Id. at 23-30.
9
Id. at 18-30.
10
Id. at 1-3.
11
Id. at 32-37.
12
Id. at 62-63.
13
Id. at 79.
14
Id. at 80-82.
15
Id. at 117.
16
Rollo, Vol. III, pp. 2-15.
17
Id. at 9.
18
Id. at 15.
19
Id. at 1.
20
Id. at 49.
21
Section 12(b). If the Board, by the vote of a majority of its total membership,
determines that the respondent should be suspended from the practice of law or disbarred,
it shall issue a resolution setting forth its findings and recommendations which, together
with the whole record of the case, shall forthwith be transmitted to the Supreme Court for
final action.
22
Temporary rollo, pp. 2-14.
23
24
The Civil Code states in Article 2034 that: "There may be a compromise upon the civil
liability arising from an offense; but such compromise shall not extinguish the public
action for the imposition of the legal penalty. (1813)."
25
Agpalo, R., Legal Ethics, 1989, 4th Edition, p. 157.
26
Reyes v. Vitan, A.C. No. 5835, April 15, 2005, 456 SCRA 87, 90.
27
A.C. No. 5804, July 1, 2003, 405 SCRA 220.
28
Id. at 223.
29
Law Governing Lawyers, Restatement of the Law Third, Volume 2, 2000 Edition,
American Law Institute, Washington D.C., §121.
30
Heirs of Lydio "Jerry" Falame v. Baguio, A.C. No. 6876, March 7, 2008, 548 SCRA 1,
13.
31
Kauffman, K. D., Legal Ethics, Delmar Learning, 2004, pp. 174-175, 207.
32
Hilado v. David, 84 Phil. 569, 579 (1949) cited in Quiambao v. Bamba, A.C. No. 6708,
August 25, 2005, 468 SCRA 1, 9-10.
33
Perez v. De la Torre, A.C. No. 6160, March 30, 2006, 485 SCRA 547, 551.
34
Agpalo, The Code of Professional Responsibility for Lawyers, 1991, 1st Edition, p.
167, citing Nombrado v. Hernandez, Adm. Case No. 555, November 25, 1968, 26 SCRA
13, Natam v. Capule, 91 Phil. 640 (1952), San Jose v. Cruz, 57 Phil. 792 (1933) and
Hilado v. David, 84 Phil. 569 (1949).
35
Id. at 199, citing Watkins v. Sedberry, 261 U.S. 571, 67 L. ed. 802 (1923).
36
Bun Siong Yao v. Aurelio, A.C. No. 7023, March 30, 2006, 485 SCRA 553, 560.
SUPREME COURT
Manila
EN BANC
A.M. OCA IPI No. 02-1321-P July 16, 2013
CONCERNED CITIZEN, Complainant,

vs.
NONITA V. CATENA, COURT STENOGRAPHER III, REGIONAL TRIAL COURT,
BRANCH 50, PUERTO PRINCESA, PALAWAN, Respondent.
DECISION
BERSAMIN, J.:
Gross dishonesty on the part of an employee of the Judiciary is a very serious offense that must
be severely punished. Dismissal may be meted on the employee, unless she had meanwhile
ceased to be an employee, in which case a high fine shall be imposed.
Antecedents
This administrative case stemmed from an undated anonymous letter-complaint charging

respondent Nonita Catena (Catena), a Court Stenographer III of Branch 50 of the Regional Trial
Court in Puerto Princesa City, Palawan (RTC) with gross dishonesty she allegedly committed in
connection with her Civil Service eligibility accusing her of having caused another person to take
the Civil Service Eligibility Examination in her stead.
The letter reads,1 thus:
Sir:
I would like to bring to your attention an anomaly brought about by one Noneta Catina.
She is permanently employed as stenographer under the Regional Trial Court (RTC) Branch 50
here in the Justice Hall of Puerto Princesa City.
In 1998, somebody took the stenographer’s examination in her behalf in Leyte. She allegedly
passed said examination that gave her the permanent position of stenographer in 1998.
May I request for a verification and if found guilty, I hope CSC will do something in fairness to
those who are taking your Stenographer’s examination.
Thank you very much and more power!

Concerned Citizen
On January 18, 2002, Justice Jose P. Perez, a Member of this Court, as Deputy Court
Administrator, forwarded the complaint against Catena for investigation by the Legal Division of
the Office of the Court Administrator (OCA). The investigation revealed discrepancies between
the pictures, signatures and other details contained in the Career Service Examination permit
submitted to the Civil Service Commission (CSC), on one hand, and the 201 file of Catena, on
the other.2
On February 21, 2002, Justice Presbitero J. Velasco, a Member of this Court, the Court
Administrator then, directed Catena to comment within ten days on the anonymous complaint.3
Catena implored the OCA for a 30-day extension of the period within which to submit her
comment.4 Despite her request being granted, she failed to submit a comment, causing the Court
to issue a tracer letter on September 24, 2002,5 but still enjoining her to comply with the previous
directive to file a comment within five days from notice, or else the complaint would be resolved
without her comment.
On August 13, 2003, the OCA recommended that a resolution addressed to Catena’s home and
office addresses requiring her to comment within 10 days from notice be issued.6 On October 1,
2003, therefore, the Court, after noting the anonymous complaint, required Catena to comment
on it within 10 days from notice.7
Catena still failed to comment on the complaint thereafter, prompting the Court to require her on
March 17, 2004 to show cause why she should not be disciplinarily dealt with or held in
contempt for such failure, and to comply with the October 1, 2003 resolution by submitting the
comment within 10 days.8 Subsequently, on November 24, 2004, the Court issued another
resolution to reiterate the show-cause order of March 17, 2004.9
On March 9, 2005, however, Judge Nelia Yap-Fernandez of the RTC formally informed the
Court that Catena had already resigned from her position effective on January 2, 2003.10
In view of this communication, the Court resolved on April 11, 2005, to await the compliance of
Catena with the resolution dated November 24, 2004.11 On September 26, 2005, the Court
required Judge Yap-Fernandez to provide Catena’s current and correct address within 15 days
from notice because Catena continued to ignore the previous resolutions.12
Eventually on February 12, 2007, the Court directed the Branch Clerk of Court of the RTC to
provide Catena’s current and correct address within 10 days13 because of Judge Yap-Fernandez’s
intervening disability retirement.14 In turn, Ms. Jessie C. Gipal, as Officer-in-Charge of the RTC,
complied, and furnished Catena’s current and correct address to be at Purok Sandiwa, Brgy. New
Princess 5300, Puerto Princesa City,15 which compliance was duly noted on June 25, 2007.16
Subsequently, on February 4, 2008, the Court considered as served on Catena the previous
resolutions of June 25 2007, October 1, 2003, March 17, 2004 and November 24, 2004 because
of the return on the service at that address being "Return to Sender-unclaimed."17
On April 28, 2008, the Court resolved anew to await Catena’s comment,18 and decided to
dispense with her comment only on August 20, 2008, and to refer the complaint to the OCA for
evaluation, report and recommendation.19
The complaint was later on re-docketed as a regular administrative matter on the basis of the
recommendation made on October 7, 2009 by Justice Perez, then already the Court
Administrator, who recommended that Catena be held liable for dishonesty and be dismissed
from the service with prejudice to re-employment in any branch, agency, instrumentality of the
government, including government owned and controlled corporations.20
On October 26, 2009, the Court required Catena to manifest if she was willing to submit the case
for resolution on the basis of the records and pleadings filed within 10 days from notice.21 On
December 13, 2010, the Court resent the resolution because the postal carrier reported that
Catena as the addressee had been "out of town" and did not receive the mail matter.22
After the subsequent attempt to serve still failed because, as noted on the envelope, Catena as the
addressee had "moved out," the Court deemed the resolution of October 26, 2009 as served on
her on April 13, 2011.23
Still, on May 30, 2011,24 the Court directed the Director of the National Bureau of Investigation
(NBI) to locate the whereabouts of Catena and to submit a report thereon within 10 days from
notice.
On August 5, 2011, Head Agent (HA) Rosauro D. Bautista of the NBI District Office in Puerto
Princesa City sent the following report, viz:
Respondent, NONITA V. CATENA was located at her residence in Purok Sandiwa, Barangay
Tiniguiban, Puerto Princesa but refused to sign the herein NOTICE, nevertheless received the
document. Agent of the Puerto Princesa District Office served the herein NOTICE on respondent
on July 25, 2011 and the same was communicated to the Office of the Deputy Director for
Operations Services in Manila. Photograph of herein respondent was taken for identitifcation and
reference purposes.25
On August 9, 2011, NBI Director Magtanggol Gatdula, citing and quoting the foregoing report
of HA Bautista, submitted his compliance with the resolution of May 30, 2011,26 praying that the
compliance be accepted.
Hence, we resolve.
Ruling
Based on its investigation, the OCA found discrepancies between the pictures, signatures and
other details contained in Catena’s Career Service Examination permit submitted to the CSC, on
one hand, and those found in her 201 file,27 on the other; and concluded that she was thereby
guilty of gross dishonesty. It recommended her dismissal from the service, with prejudice to re-
employment in any branch, agency, instrumentality or agency of the government including
government-owned and -controlled corporations.28
The findings and recommendation of the OCA, being based on established facts, are well-taken,
but we modify the recommended sanction in view of Catena’s intervening resignation from the
service effective on January 2, 2003.
Let it be said at the outset that Catena’s resignation from the service did not cause the Court to
lose its jurisdiction to proceed against her in this administrative case. Her cessation from office
by virtue of her intervening resignation did not warrant the dismissal of the administrative
complaint against her, for the act complained of had been committed when she was still in the
service. Nor did such cessation from office render the administrative case moot and academic.
Indeed, the Court’s jurisdiction at the time of the filing of the administrative complaint was not
lost because the respondent had ceased in office during the pendency of the case.29 Otherwise,
exacting responsibility for administrative liabilities incurred would be easily avoided or evaded.
The point of the complaint against Catena is that she misrepresented in her Personal Data Sheet
(PDS) that she held a Sub-Professional Civil Service Eligibility, but in truth another person had
taken the Civil Service Examination in her place. Her claim that she held a Sub-Professional
Civil Service Eligibility with a rating of 86.48%, as stated in her PDS submitted to the Court,
was, therefore, entirely false.30
Attempting to disprove the charge that she did not take the eligibility examination herself,
Catena submitted her approved leave application and her daily time records corresponding to the
period of the eligibility examination. Her submission was really not enough, however, because
said documents did not establish that she had herself taken the examination, or that she had been
personally at the testing site on the date of the examination. At best, the approved leave
application attested only that she had applied for a leave of absence from work, and that her
application had been approved, while her daily time records affirmed only that she did not report
to her office on the dates that she had supposedly gone on leave.
Perhaps anticipating that her submission of the daily time records and approved leave application
would not suffice to support her explanation, she stated in her request for the 30-day extension to
file the comment that she would be needing the time to gather the documents she would submit
as her evidence to disprove the charge of gross dishonesty,31 specifically: (1) a certification from
the head office of the Negros Navigation Company in Manila, to show that she had travelled
from Puerto Princesa City to Iloilo City, and from Cebu City to Leyte on the date of the
examination; (2) affidavits of residents of Leyte attesting to her being in the locality of the
examination and to her taking the examination herself; (3) records on file with the CSC office in
Leyte; and (4) other evidence of similar nature. But ultimately she did not come forward with the
promised documentary evidence, notwithstanding her awareness of the desire of the Court to
hear her side.
Compounding Catena’s situation was her unusual silence on the complaint despite the very
ample opportunity accorded her to comment. Being conscious of the gravity of the complaint
against her, she should have come forward to explain her side. In that regard, too, we have to
stress that the directives for her to comment were not mere requests to be lightly taken, but firm
commands to be obeyed without the least delay.32 What her silence signified was that she had no
desire to clear her name and to save her employment in the Judiciary. Worse, her silence now
also signifies that she had nothing to say in her own defense, because it was naturally expected of
her based on the natural instinct of man for self-preservation to resist the serious charge if it was
untrue and unfair. Her silence in the face of the accusation of gross dishonesty was justifiably
construed as her implied admission of the truth thereof.33
Considering that Catena’s misrepresentation of her eligibility concerned a material fact that
enabled her to secure her appointment equated to her deliberate fabrication of the truth
concerning her eligibility, she was guilty of gross dishonesty. She should not be allowed to
remain in the service of the Judiciary, because no other office in the Government exacted a
greater demand for mortal righteousness from an official or employee than a position in the
Judiciary.34
A finding of dishonesty against an employee in the Civil Service carries with it the penalty of
dismissal. Under Rule IV Section 52 (A) (1) of the Revised Uniform Rules on Administrative
Cases in the Civil Service Rules (Revised Uniform Rules), dishonesty is classified as a grave
offense that is already punishable by dismissal from the service even at the first offense.
In addition, Section 57 and Section 58 of the Revised Uniform Rules provide as follows:
Section 57. Administrative Disabilities/Accessories to Administrative Penalties.
a. Cancellation of eligibility
b. Forfeiture of retirement benefits.
c. Disqualification for reinstatement or reemployment.
d. Disqualification for promotion.
e. Bar from taking any Civil Service Examination
Section 58. Administrative Disabilities Inherent in Certain Penalties.
a. The penalty of dismissal shall carry with it that of cancellation of eligibility, forfeiture
of retirement benefits, and the perpetual disqualification for reemployment in the
government service, unless otherwise provided in the decision.
b. The penalty of transfer shall carry with it disqualification for promotion for a period of
six (6) months from the date of respondent reports to the new position or station.
c. The penalty of demotion shall carry with it disqualification for promotion at the rate of
two (2) months for every step or one (1) month for every range of salary by which he was
demoted to be computed from the date respondent reports to the new position or
station.1âwphi1
d. The penalty of suspension shall carry with it disqualification for promotion

corresponding to the period of suspension.
e. The penalty of fine shall carry with it disqualification for promotion for a period of
twice the number of days he was fined.
f. The penalty of fine shall be paid to the agency imposing the same, computed on the
basis of respondent’s salary at the time the decision becomes final and executor.
g. The following are the Guidelines for the payment of fine:
xxxx
In Civil Service Commission v. Macud,35 the penalty of dismissal was prescribed with the
accessory penalties against respondent who had been found guilty of making a false declaration
in her PDS that she had passed the Professional Board Examination for Teachers. In Cruz v.
Civil Service Commission36 and Civil Service Commission v. Sta. Ana,37 the employees found
guilty of similar offenses were dismissed. In Cruz, Zenaida Paitim had masqueraded as Gilda
Cruz, and had taken the Civil Service examination in lieu of Cruz. Both Paitim and Cruz were
meted the penalty of dismissal from the service. In Sta. Ana, another person had taken the Civil
Service examination for Sta. Ana, who was held guilty of dishonesty and dismissed from the
service.
We do not deviate from such precedents. Catena’s dismissal from the service is the appropriate
penalty, with her eligibility to be cancelled, her retirement benefits to be forfeited, and her
disqualification from reemployment in the government service to be perpetual. Nonetheless, we
do not forfeit her accrued leave credits to accord with the ruling in Sta. Ana.38
Catena’s intervening resignation necessarily means that the penalty of dismissal could no longer
be implemented against her. Instead, fine is imposed, the determination of the amount of which
is subject to the sound discretion of the Court.39 As earlier clarified, the resignation did not
prevent this resolution from being made, because resignation should not be used as a convenient
means or strategy to evade administrative liability.40
Section 56 (e) of Rule IV of the Revised Uniform Rules provides that the penalty of fine shall be
in an amount not exceeding the salary for six months had respondent not resigned, the rate for
which is that obtaining upon at the time of her resignation.
Finally, even though her penalty is a fine, she should still suffer the accessory penalty of
perpetual disqualification from re-employment in the Government that the penalty of dismissal
carried. A contrary holding would have the undesirable effect of giving the erring employee the
means to avoid the accessory penalty by the simple expedient of resigning.
Let it be stressed that all court employees of the Judiciary, being public servants in an office
dispensing justice, must always act with a high degree of professionalism and responsibility.
Their conduct must not only be characterized by propriety and decorum, but must also be in
accordance with the law and court regulations. They should be models of uprightness, fairness
and honesty, for that is the only way to maintain the people's respect for and faith in the
Judiciary. They should avoid any act or conduct that would diminish public trust and confidence
in the courts.41
WHEREFORE, the Court FINDS and DECLARES NONITA V. CATENA, former Court
Stenographer III, Branch 50, Regional Trial Court in Puerto Princesa City, Palawan, GUILTY of
GROSS DISHONESTY; and ORDERS her to pay a FINE equivalent to her salary for six months
computed at the salary rate for her former position at the time of her resignation, with prejudice
to her re-employment in any branch of the Government, including government-owned or -
controlled corporations.
In the event that her leave credits are insufficient to answer for the fine, NONITA V. CATENA
shall pay the fine to the Court within 10 days from the date of finality of this decision.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice




No part. Acted on matter as Crt. Adm.

JOSE PORTUGAL PEREZ
Associate Justice
Associate Justice

Associate Justice
Footnotes
* On leave.
1
Rollo, p. 5.
2
Id. at 23.
3
Id. at 14.
4
Id. at 15
5
Id. at 34.
6
Id. at 35-36.
7
Id. at 37-38.
8
Id. at 43.
9
Id. at 46.
10
Id. at 47.
11
Id. at 51.
12
Id. at 54.
13
Id. at 63.
14
Id. at 57.
15
Id. at 64.
16
Id. at 67.
17
Id. at 75-76.
18
Id. at 77.
19
Id. at 79.
20
Id. at 80-83.
21
Id. at 84.
22
Id. at 93.
23
Id. at 96.
24
Id. at 98.
25
Id. at 101.
26
Id. at 105-106
27
Id. at 23.
28
Id. at 82-83.
29
Re: Missing Exhibits and Court Properties in Regional Trial Court, Branch 4, Panabo
City, Davao del Norte, A.M. No. 10-2-41-RTC, February 27, 2013.
30
Rollo, p. 9.
31
Id. at 15.
32
Grefaldeo v. Lacson, A.M. No. MTJ-93-881, August 3, 1998, 293 SCRA 524, 527.
33
Palon, Jr. v. Vallarta, A.M. No. MTJ-04-1530, March 7, 2007, 517 SCRA 624, 628.
34
Anonymous v. Curamen, A.M. No. P-08-2549, June 18, 2010, 621 SCRA 212, 218.
35
G.R. No. 177531, September 10, 2009, 599 SCRA 52, 67-68.
36
G.R. No. 144464, November 27, 2001, 370 SCRA 650, 655.
37
A.M. No. P-03-1696, April 30, 2003, 402 SCRA 49, 55-56.
38
Concerned Citizen v. Abad, A.M. No. P-11-2907, January 31, 2012, 664 SCRA 478,
482.
39
Fernandez v. Vasquez, A.M. No. RTJ-11-2261, July 26, 2011, 654 SCRA 349, 360-
362.
40
Re: Administrative Case for Falsification of Official Documents and Dishonesty
Against Randy S. Villanueva, A.M. No. 2005-24-SC, August 10, 2007, 529 SCRA 679,
685
41
Tan v. Quitorio, A.M. No. P-11-2919, May 30,2011,649 SCRA 12, 25.
SUPREME COURT
Manila
EN BANC
G.R. No. 179987 September 3, 2013
HEIRS OF MARIO MALABANAN, (Represented by Sally A. Malabanan), Petitioners,

vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
RESOLUTION
BERSAMIN, J.:
For our consideration and resolution are the motions for reconsideration of the parties who both
assail the decision promulgated on April 29, 2009, whereby we upheld the ruling of the Court of
Appeals (CA) denying the application of the petitioners for the registration of a parcel of land
situated in Barangay Tibig, Silang, Cavite on the ground that they had not established by
sufficient evidence their right to the registration in accordance with either Section 14(1) or
Section 14(2) of Presidential Decree No. 1529 (Property Registration Decree).
Antecedents
The property subject of the application for registration is a parcel of land situated in Barangay
Tibig, Silang Cavite, more particularly identified as Lot 9864-A, Cad-452-D, with an area of
71,324-square meters. On February 20, 1998, applicant Mario Malabanan, who had purchased
the property from Eduardo Velazco, filed an application for land registration covering the
property in the Regional Trial Court (RTC) in Tagaytay City, Cavite, claiming that the property
formed part of the alienable and disposable land of the public domain, and that he and his
predecessors-in-interest had been in open, continuous, uninterrupted, public and adverse
possession and occupation of the land for more than 30 years, thereby entitling him to the
judicial confirmation of his title.1
To prove that the property was an alienable and disposable land of the public domain, Malabanan
presented during trial a certification dated June 11, 2001 issued by the Community Environment
and Natural Resources Office (CENRO) of the Department of Environment and Natural
Resources (DENR), which reads:
This is to certify that the parcel of land designated as Lot No. 9864 Cad 452-D, Silang Cadastre
as surveyed for Mr. Virgilio Velasco located at Barangay Tibig, Silang, Cavite containing an
area of 249,734 sq. meters as shown and described on the Plan Ap-04-00952 is verified to be
within the Alienable or Disposable land per Land Classification Map No. 3013 established under
Project No. 20-A and approved as such under FAO 4-1656 on March 15, 1982.2
After trial, on December 3, 2002, the RTC rendered judgment granting Malabanan’s application
for land registration, disposing thusly:
WHEREFORE, this Court hereby approves this application for registration and thus places under
the operation of Act 141, Act 496 and/or P.D. 1529, otherwise known as Property Registration
Law, the lands described in Plan Csd-04-0173123-D, Lot 9864-A and containing an area of
Seventy One Thousand Three Hundred Twenty Four (71,324) Square Meters, as supported by its
technical description now forming part of the record of this case, in addition to other proofs
adduced in the name of MARIO MALABANAN, who is of legal age, Filipino, widower, and
with residence at Munting Ilog, Silang, Cavite.
Once this Decision becomes final and executory, the corresponding decree of registration shall
forthwith issue.
SO ORDERED.3
The Office of the Solicitor General (OSG) appealed the judgment to the CA, arguing that
Malabanan had failed to prove that the property belonged to the alienable and disposable land of
the public domain, and that the RTC erred in finding that he had been in possession of the
property in the manner and for the length of time required by law for confirmation of imperfect
title.
On February 23, 2007, the CA promulgated its decision reversing the RTC and dismissing the
application for registration of Malabanan. Citing the ruling in Republic v. Herbieto (Herbieto),4
the CA declared that under Section 14(1) of the Property Registration Decree, any period of
possession prior to the classification of the land as alienable and disposable was inconsequential
and should be excluded from the computation of the period of possession. Noting that the
CENRO-DENR certification stated that the property had been declared alienable and disposable
only on March 15, 1982, Velazco’s possession prior to March 15, 1982 could not be tacked for
purposes of computing Malabanan’s period of possession.
Due to Malabanan’s intervening demise during the appeal in the CA, his heirs elevated the CA’s
decision of February 23, 2007 to this Court through a petition for review on certiorari.
The petitioners assert that the ruling in Republic v. Court of Appeals and Corazon Naguit5
(Naguit) remains the controlling doctrine especially if the property involved is agricultural land.
In this regard, Naguit ruled that any possession of agricultural land prior to its declaration as
alienable and disposable could be counted in the reckoning of the period of possession to perfect
title under the Public Land Act (Commonwealth Act No. 141) and the Property Registration
Decree. They point out that the ruling in Herbieto, to the effect that the declaration of the land
subject of the application for registration as alienable and disposable should also date back to
June 12, 1945 or earlier, was a mere obiter dictum considering that the land registration
proceedings therein were in fact found and declared void ab initio for lack of publication of the
notice of initial hearing.
The petitioners also rely on the ruling in Republic v. T.A.N. Properties, Inc.6 to support their
argument that the property had been ipso jure converted into private property by reason of the
open, continuous, exclusive and notorious possession by their predecessors-in-interest of an
alienable land of the public domain for more than 30 years. According to them, what was
essential was that the property had been "converted" into private property through prescription at
the time of the application without regard to whether the property sought to be registered was
previously classified as agricultural land of the public domain.
As earlier stated, we denied the petition for review on certiorari because Malabanan failed to
establish by sufficient evidence possession and occupation of the property on his part and on the
part of his predecessors-in interest since June 12, 1945, or earlier.
Petitioners’ Motion for Reconsideration
In their motion for reconsideration, the petitioners submit that the mere classification of the land
as alienable or disposable should be deemed sufficient to convert it into patrimonial property of
the State. Relying on the rulings in Spouses De Ocampo v. Arlos,7 Menguito v. Republic8 and
Republic v. T.A.N. Properties, Inc.,9 they argue that the reclassification of the land as alienable
or disposable opened it to acquisitive prescription under the Civil Code; that Malabanan had
purchased the property from Eduardo Velazco believing in good faith that Velazco and his
predecessors-in-interest had been the real owners of the land with the right to validly transmit
title and ownership thereof; that consequently, the ten-year period prescribed by Article 1134 of
the Civil Code, in relation to Section 14(2) of the Property Registration Decree, applied in their
favor; and that when Malabanan filed the application for registration on February 20, 1998, he
had already been in possession of the land for almost 16 years reckoned from 1982, the time
when the land was declared alienable and disposable by the State.
The Republic’s Motion for Partial Reconsideration
The Republic seeks the partial reconsideration in order to obtain a clarification with reference to
the application of the rulings in Naguit and Herbieto.
Chiefly citing the dissents, the Republic contends that the decision has enlarged, by implication,
the interpretation of Section 14(1) of the Property Registration Decree through judicial
legislation. It reiterates its view that an applicant is entitled to registration only when the land
subject of the application had been declared alienable and disposable since June 12, 1945 or
earlier.
Ruling
We deny the motions for reconsideration.
In reviewing the assailed decision, we consider to be imperative to discuss the different

classifications of land in relation to the existing applicable land registration laws of the
Philippines.
Classifications of land according to ownership
Land, which is an immovable property,10 may be classified as either of public dominion or of

private ownership.11 Land is considered of public dominion if it either: (a) is intended for public
use; or (b) belongs to the State, without being for public use, and is intended for some public
service or for the development of the national wealth.12 Land belonging to the State that is not of
such character, or although of such character but no longer intended for public use or for public
service forms part of the patrimonial property of the State.13 Land that is other than part of the
patrimonial property of the State, provinces, cities and municipalities is of private ownership if it
belongs to a private individual.
Pursuant to the Regalian Doctrine (Jura Regalia), a legal concept first introduced into the country
from the West by Spain through the Laws of the Indies and the Royal Cedulas,14 all lands of the
public domain belong to the State.15 This means that the State is the source of any asserted right
to ownership of land, and is charged with the conservation of such patrimony.16
All lands not appearing to be clearly under private ownership are presumed to belong to the
State. Also, public lands remain part of the inalienable land of the public domain unless the State
is shown to have reclassified or alienated them to private persons.17
Classifications of public lands

according to alienability
Whether or not land of the public domain is alienable and disposable primarily rests on the
classification of public lands made under the Constitution. Under the 1935 Constitution,18 lands
of the public domain were classified into three, namely, agricultural, timber and mineral.19
Section 10, Article XIV of the 1973 Constitution classified lands of the public domain into
seven, specifically, agricultural, industrial or commercial, residential, resettlement, mineral,
timber or forest, and grazing land, with the reservation that the law might provide other
classifications. The 1987 Constitution adopted the classification under the 1935 Constitution into
agricultural, forest or timber, and mineral, but added national parks.20 Agricultural lands may be
further classified by law according to the uses to which they may be devoted.21 The identification
of lands according to their legal classification is done exclusively by and through a positive act
of the Executive Department.22
Based on the foregoing, the Constitution places a limit on the type of public land that may be
alienated. Under Section 2, Article XII of the 1987 Constitution, only agricultural lands of the
public domain may be alienated; all other natural resources may not be.
Alienable and disposable lands of the State fall into two categories, to wit: (a) patrimonial lands
of the State, or those classified as lands of private ownership under Article 425 of the Civil
Code,23 without limitation; and (b) lands of the public domain, or the public lands as provided by
the Constitution, but with the limitation that the lands must only be agricultural. Consequently,
lands classified as forest or timber, mineral, or national parks are not susceptible of alienation or
disposition unless they are reclassified as agricultural.24 A positive act of the Government is
necessary to enable such reclassification,25 and the exclusive prerogative to classify public lands
under existing laws is vested in the Executive Department, not in the courts.26 If, however, public
land will be classified as neither agricultural, forest or timber, mineral or national park, or when
public land is no longer intended for public service or for the development of the national wealth,
thereby effectively removing the land from the ambit of public dominion, a declaration of such
conversion must be made in the form of a law duly enacted by Congress or by a Presidential
proclamation in cases where the President is duly authorized by law to that effect.27 Thus, until
the Executive Department exercises its prerogative to classify or reclassify lands, or until
Congress or the President declares that the State no longer intends the land to be used for public
service or for the development of national wealth, the Regalian Doctrine is applicable.
Disposition of alienable public lands
Section 11 of the Public Land Act (CA No. 141) provides the manner by which alienable and
disposable lands of the public domain, i.e., agricultural lands, can be disposed of, to wit:
Section 11. Public lands suitable for agricultural purposes can be disposed of only as follows,
and not otherwise:
(1) For homestead settlement;
(2) By sale;
(3) By lease; and
(4) By confirmation of imperfect or incomplete titles;
(a) By judicial legalization; or
(b) By administrative legalization (free patent).
The core of the controversy herein lies in the proper interpretation of Section 11(4), in relation to
Section 48(b) of the Public Land Act, which expressly requires possession by a Filipino citizen
of the land since June 12, 1945, or earlier, viz:
Section 48. The following-described citizens of the Philippines, occupying lands of the public
domain or claiming to own any such lands or an interest therein, but whose titles have not been
perfected or completed, may apply to the Court of First Instance of the province where the land
is located for confirmation of their claims and the issuance of a certificate of title thereafter,
under the Land Registration Act, to wit:
xxxx
(b) Those who by themselves or through their predecessors-in-interest have been in open,
continuous, exclusive, and notorious possession and occupation of alienable and disposable lands
of the public domain, under a bona fide claim of acquisition of ownership, since June 12, 1945,
or earlier, immediately preceding the filing of the applications for confirmation of title, except
when prevented by war or force majeure. These shall be conclusively presumed to have
performed all the conditions essential to a Government grant and shall be entitled to a certificate
of title under the provisions of this chapter. (Bold emphasis supplied)
Note that Section 48(b) of the Public Land Act used the words "lands of the public domain" or
"alienable and disposable lands of the public domain" to clearly signify that lands otherwise
classified, i.e., mineral, forest or timber, or national parks, and lands of patrimonial or private
ownership, are outside the coverage of the Public Land Act. What the law does not include, it
excludes. The use of the descriptive phrase "alienable and disposable" further limits the coverage
of Section 48(b) to only the agricultural lands of the public domain as set forth in Article XII,
Section 2 of the 1987 Constitution. Bearing in mind such limitations under the Public Land Act,
the applicant must satisfy the following requirements in order for his application to come under
Section 14(1) of the Property Registration Decree,28 to wit:
1. The applicant, by himself or through his predecessor-in-interest, has been in possession

and occupation of the property subject of the application;
2. The possession and occupation must be open, continuous, exclusive, and notorious;
3. The possession and occupation must be under a bona fide claim of acquisition of
ownership;
4. The possession and occupation must have taken place since June 12, 1945, or earlier;
and
5. The property subject of the application must be an agricultural land of the public
domain.
Taking into consideration that the Executive Department is vested with the authority to classify
lands of the public domain, Section 48(b) of the Public Land Act, in relation to Section 14(1) of
the Property Registration Decree, presupposes that the land subject of the application for
registration must have been already classified as agricultural land of the public domain in order
for the provision to apply. Thus, absent proof that the land is already classified as agricultural
land of the public domain, the Regalian Doctrine applies, and overcomes the presumption that
the land is alienable and disposable as laid down in Section 48(b) of the Public Land Act.
However, emphasis is placed on the requirement that the classification required by Section 48(b)
of the Public Land Act is classification or reclassification of a public land as agricultural.
The dissent stresses that the classification or reclassification of the land as alienable and
disposable agricultural land should likewise have been made on June 12, 1945 or earlier, because
any possession of the land prior to such classification or reclassification produced no legal
effects. It observes that the fixed date of June 12, 1945 could not be minimized or glossed over
by mere judicial interpretation or by judicial social policy concerns, and insisted that the full
legislative intent be respected.
We find, however, that the choice of June 12, 1945 as the reckoning point of the requisite
possession and occupation was the sole prerogative of Congress, the determination of which
should best be left to the wisdom of the lawmakers. Except that said date qualified the period of
possession and occupation, no other legislative intent appears to be associated with the fixing of
the date of June 12, 1945. Accordingly, the Court should interpret only the plain and literal
meaning of the law as written by the legislators.
Moreover, an examination of Section 48(b) of the Public Land Act indicates that Congress
prescribed no requirement that the land subject of the registration should have been classified as
agricultural since June 12, 1945, or earlier. As such, the applicant’s imperfect or incomplete title
is derived only from possession and occupation since June 12, 1945, or earlier. This means that
the character of the property subject of the application as alienable and disposable agricultural
land of the public domain determines its eligibility for land registration, not the ownership or title
over it.
Alienable public land held by a possessor, either personally or through his predecessors-in-
interest, openly, continuously and exclusively during the prescribed statutory period is converted
to private property by the mere lapse or completion of the period.29 In fact, by virtue of this
doctrine, corporations may now acquire lands of the public domain for as long as the lands were
already converted to private ownership, by operation of law, as a result of satisfying the requisite
period of possession prescribed by the Public Land Act.30 It is for this reason that the property
subject of the application of Malabanan need not be classified as alienable and disposable
agricultural land of the public domain for the entire duration of the requisite period of
possession.
To be clear, then, the requirement that the land should have been classified as alienable and
disposable agricultural land at the time of the application for registration is necessary only to
dispute the presumption that the land is inalienable.
The declaration that land is alienable and disposable also serves to determine the point at which
prescription may run against the State. The imperfect or incomplete title being confirmed under
Section 48(b) of the Public Land Act is title that is acquired by reason of the applicant’s
possession and occupation of the alienable and disposable agricultural land of the public domain.
Where all the necessary requirements for a grant by the Government are complied with through
actual physical, open, continuous, exclusive and public possession of an alienable and disposable
land of the public domain, the possessor is deemed to have acquired by operation of law not only
a right to a grant, but a grant by the Government, because it is not necessary that a certificate of
title be issued in order that such a grant be sanctioned by the courts.31
If one follows the dissent, the clear objective of the Public Land Act to adjudicate and quiet titles
to unregistered lands in favor of qualified Filipino citizens by reason of their occupation and
cultivation thereof for the number of years prescribed by law32 will be defeated. Indeed, we
should always bear in mind that such objective still prevails, as a fairly recent legislative
development bears out, when Congress enacted legislation (Republic Act No. 10023)33 in order
to liberalize stringent requirements and procedures in the adjudication of alienable public land to
qualified applicants, particularly residential lands, subject to area limitations.34
On the other hand, if a public land is classified as no longer intended for public use or for the
development of national wealth by declaration of Congress or the President, thereby converting
such land into patrimonial or private land of the State, the applicable provision concerning
disposition and registration is no longer Section 48(b) of the Public Land Act but the Civil Code,
in conjunction with Section 14(2) of the Property Registration Decree.35 As such, prescription
can now run against the State.
To sum up, we now observe the following rules relative to the disposition of public land or lands
of the public domain, namely:
(1) As a general rule and pursuant to the Regalian Doctrine, all lands of the public
domain belong to the State and are inalienable. Lands that are not clearly under private
ownership are also presumed to belong to the State and, therefore, may not be alienated
or disposed;
(2) The following are excepted from the general rule, to wit:
(a) Agricultural lands of the public domain are rendered alienable and disposable
through any of the exclusive modes enumerated under Section 11 of the Public
Land Act. If the mode is judicial confirmation of imperfect title under Section
48(b) of the Public Land Act, the agricultural land subject of the application needs
only to be classified as alienable and disposable as of the time of the application,
provided the applicant’s possession and occupation of the land dated back to June
12, 1945, or earlier. Thereby, a conclusive presumption that the applicant has
performed all the conditions essential to a government grant arises,36 and the
applicant becomes the owner of the land by virtue of an imperfect or incomplete
title. By legal fiction, the land has already ceased to be part of the public domain
and has become private property.37
(b) Lands of the public domain subsequently classified or declared as no longer

intended for public use or for the development of national wealth are removed
from the sphere of public dominion and are considered converted into patrimonial
lands or lands of private ownership that may be alienated or disposed through any
of the modes of acquiring ownership under the Civil Code. If the mode of
acquisition is prescription, whether ordinary or extraordinary, proof that the land
has been already converted to private ownership prior to the requisite acquisitive
prescriptive period is a condition sine qua non in observance of the law (Article
1113, Civil Code) that property of the State not patrimonial in character shall not
be the object of prescription.
To reiterate, then, the petitioners failed to present sufficient evidence to establish that they and
their predecessors-in-interest had been in possession of the land since June 12, 1945. Without
satisfying the requisite character and period of possession - possession and occupation that is
open, continuous, exclusive, and notorious since June 12, 1945, or earlier - the land cannot be
considered ipso jure converted to private property even upon the subsequent declaration of it as
alienable and disposable. Prescription never began to run against the State, such that the land has
remained ineligible for registration under Section 14(1) of the Property Registration Decree.
Likewise, the land continues to be ineligible for land registration under Section 14(2) of the
Property Registration Decree unless Congress enacts a law or the President issues a proclamation
declaring the land as no longer intended for public service or for the development of the national
wealth.1âwphi1
WHEREFORE, the Court DENIES the petitioners' Motion for Reconsideration and the
respondent's Partial Motion for Reconsideration for their lack of merit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

I submitted my vote joining the Separate

Opinion of Justice Brion In the Result: See Separate Opinion
TERESITA J. LEONARDO-DE ARTURO D. BRION
CASTRO Associate Justice
Associate Justice
DIOSDADO M. PERLATA MARIANO C. DEL CASTILLO




See separate concurring and dissenting opinion

Associate Justice
CERTIFICATION
above Resolution had been reached in consultation before the case was assigned to the writer of
the opinion of the court.

Chief Justice
Footnotes
1
Rollo, pp. 16-17.
2
Id. at 37-38.
3
Id. at 87.
4
G.R. No. 156117, May 26, 2005, 459 SCRA 183.
5
6
G.R. No. 154953, June 26, 2008, 555 SCRA 477.
7
8
9
Supra note 6.
10
Article 415(1), Civil Code.
11
12
13
14
Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385, December
6, 2000, 347 SCRA 128, 165.
15
Section 2, Art. XII, 1987 Constitution.
16
Republic v. Intermediate Appellate Court, No. L-71285, November 5, 1987, 155 SCRA
412, 419.
17
Republic v. Lao, G.R. No. 150413, July 1, 2003, 405 SCRA 291, 298.
18
1935 Constitution, Art. XIII, Sec. 1.
19
Krivenko v. Register of Deeds of Manila, 79 Phil. 461, 468 (1947). 20 Section 3 of
Article XII, 1987 Constitution states:
Section 3. Lands of the public domain are classified into agricultural, forest or
timber, mineral lands, and national parks. Agricultural lands of the public domain
may be further classified by law according to the uses which they may be
devoted. Alienable lands of the public domain shall be limited to agricultural
lands. Private corporations or associations may not hold such alienable lands of
the public domain except by lease, for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and not to exceed one thousand
hectares in area.
Citizens of the Philippines may lease not more than five hundred hectares, or
acquire not more than twelve hectares thereof by purchase, homestead, or grant.
Taking into account the requirements of conservation, ecology, and development,

and subject to the requirements of agrarian reform, the Congress shall determine,
by law, the size of lands of the public domain which may be acquired, developed,
held, or leased and the conditions therefor. 21 Id.
22
See Bernas, The 1987 Constitution, 2009 Ed., pp. 1188-1189.
23
Article 425. Property of private ownership, besides the patrimonial property of the
State, provinces, cities, and municipalities, consists of all property belonging to private
persons, either individually or collectively. (345a)
24
Director of Forestry v. Villareal, G.R. No. 32266, February 27, 1989, 170 SCRA 598,
608-609.
25
Heirs of Jose Amunategui v. Director of Forestry, No. L-27873, November 29, 1983,
126 SCRA 69, 75.
26
Director of Lands v. Court of Appeals, No. L-58867, June 22, 1984, 129 SCRA 689,
692.
27
Republic v. Court of Appeals, G.R. No. 127060, November 19, 2002, 392 SCRA 190,
201.
28
Section 14. Who may apply. – The following persons may file in the proper Court of
First Instance an application for registration of title to land, whether personally or through
their duly authorized representatives:
(1) Those who by themselves or through their predecessors-in-interest have been

in open, continuous, exclusive and notorious possession and occupation of
alienable and disposable lands of the public domain under a bona fide claim of
ownership since June 12, 1945, or earlier.
xxxx
29
Director of Lands v. Intermediate Appellate Court, No. L-73002, December 29, 1986,
146 SCRA 509, 518. See also the dissenting opinion of Justice Teehankee in Manila
Electric Company v. Judge Castro-Bartolome, No. L-49623, June 29, 1982, 114 SCRA
799, 813.
30
Director of Lands v. Intermediate Appellate Court, No. L-73002, December 29, 1986,
146 SCRA 509, 521.
31
Susi v. Razon and Director of Lands, 48 Phil. 424, 428 (1925); Santos v. Court of
Appeals, G.R. No. 90380, September 13, 1990, 189 SCRA 550, 560; Cruz v. Navarro,
No. L-27644, November 29, 1973, 54 SCRA 109, 115.
32
x x x WHEREAS, it has always been the policy of the State to hasten the settlement,
adjudication and quieting of titles to unregistered lands including alienable and
disposable lands of the public domain in favor of qualified Filipino citizens who have
acquired inchoate, imperfect and incomplete titles thereto by reason of their open,
continuous, exclusive and notorious occupation and cultivation thereof under bonafide
claim of acquisition of ownership for a number of years prescribed by law; x x x
(Presidential Decree 1073)
33
An Act Authorizing the Issuance of Free Patents to Residential Lands (Approved on
March 9, 2010).
34
Republic Act No. 10023 reduces the period of eligibility for titling from 30 years to 10
years of untitled public alienable and disposable lands which have been zoned as
residential; and enables the applicant to apply with the Community Environment and
Natural Resources Office of the Department of Environment and Natural Resources
having jurisdiction over the parcel subject of the application, provided the land subject of
the application should not exceed 200 square meters if it is in a highly urbanized city, 500
meters in other cities, 750 meters in first-class and second-class municipalities, and 1,000
meters in third-class municipalities.
35
Section 14. Who may apply. – The following persons may file in the proper Court of
First Instance an application for registration of title to land, whether personally or through
their duly authorized representatives:
xxxx
(2) Those who have acquired ownership of private lands by prescription under the
provisions of existing laws.
36
Republic v. Intermediate Appellate Court, No. L-75042, November 29, 1988, 168
SCRA 165, 174.
37
Dissenting opinion of Justice Teehankee in Manila Electric Company v. Castro-
Bartolome, supra,
SUPREME COURT
Manila
EN BANC
A.C. No. 6732 October 22, 2013
ATTY. OSCAR L. EMBIDO, REGIONAL DIRECTOR, NATIONAL BUREAU OF

INVESTIGATION, WESTERN VISA YAS, REGIONAL OFFICE NBI-WEVRO), FOR
SAN PEDRO, ILOILO CITY, Complainant,
vs.
ATTY. SALVADOR N. PE, JR., ASSISTANT PROVINCIAL PROSECUTOR, SAN
JOSE, ANTIQUE, Respondent.
DECISION
BERSAMIN, J.:
A lawyer who forges a court decision and represents it as that of a court of law is guilty of the
gravest misconduct and deserves the supreme penalty of disbarment.
The Case
Before this Court is the complaint for disbarment against Assistant Provincial Prosecutor Atty.
Salvador N Pe, Jr. respondent) of San Jose, Antique for his having allegedly falsified an in
existent decision of Branch 64 of the Regional Trial Court stationed in Bugasong, Antique
(RTC) instituted by the National Bureau of Investigation (NBI), Western Visayas Regional
Office, represented by Regional Director Atty. Oscar L. Embido.
Antecedent
On July 7, 2004, Atty. Ronel F. Sustituya, Clerk of Court of the RTC, received a written
communication from Mr. Ballam Delaney Hunt, a Solicitor in the United Kingdom (UK). The
letter requested a copy of the decision dated February 12, 1997 rendered by Judge Rafael O.
Penuela in Special Proceedings Case No. 084 entitled In the Matter of the Declaration of
Presumptive Death of Rey Laserna, whose petitioner was one Shirley Quioyo.1
On September 9, 2004, the RTC received another letter from Mr. Hunt, reiterating the request for
a copy of the decision in Special Proceedings Case No. 084 entitled In the Matter of the
Declaration of Presumptive Death of Rey Laserna.2
Judge Penuela instructed the civil docket clerk to retrieve the records of Special Proceedings
Case No. 084 entitled In the Matter of the Declaration of Presumptive Death of Rey Laserna. It
was then discovered that the RTC had no record of Special Proceedings No. 084 wherein Shirley
Quioyo was the petitioner. Instead, the court files revealed that Judge Penuela had decided
Special Proceedings No. 084 entitled In the Matter of the Declaration of Presumptive Death of
Rolando Austria, whose petitioner was one Serena Catin Austria.
Informed that the requested decision and case records did not exist,3 Mr. Hunt sent a letter dated
October 12, 2004 attaching a machine copy of the purported decision in Special Proceedings No.
084 entitled In the Matter of the Declaration of Presumptive Death of Rey Laserna that had been
presented by Shirley Quioyo in court proceedings in the UK.4
After comparing the two documents and ascertaining that the document attached to the October
12, 2004 letter was a falsified court document, Judge Penuela wrote Mr. Hunt to apprise him of
the situation.5
The discovery of the falsified decision prompted the Clerk of Court to communicate on the
situation in writing to the NBI, triggering the investigation of the falsification.6
In the meanwhile, Dy Quioyo, a brother of Shirley Quioyo, executed an affidavit on March 4,

2005,7 wherein he stated that it was the respondent who had facilitated the issuance of the
falsified decision in Special Proceedings No. 084 entitled In the Matter of the Declaration of
Presumptive Death of Rey Laserna for a fee of P60,000.00. The allegations against the
respondent were substantially corroborated by Mary Rose Quioyo, a sister of Shirley Quioyo, in
an affidavit dated March 20, 2005.8
The NBI invited the respondent to explain his side,9 but he invoked his constitutional right to
remain silent. The NBI also issued subpoenas to Shirley Quioyo and Dy Quioyo but only the
latter appeared and gave his sworn statement.
After conducting its investigation, the NBI forwarded to the Office of the Ombudsman for
Visayas the records of the investigation, with a recommendation that the respondent be
prosecuted for falsification of public document under Article 171, 1 and 2, of the Revised Penal
Code, and for violation of Section 3(a) of Republic Act 3019 (The Anti-Graft and Corrupt
Practices Act).10 The NBI likewise recommended to the Office of the Court Administrator that
disbarment proceedings be commenced against the respondent.11 Then Court Administrator
Presbitero J. Velasco, Jr. (now a Member of the Court) officially endorsed the recommendation
to the Office of the Bar Confidant.12
Upon being required by the Court, the respondent submitted his counter-affidavit,13 whereby he
denied any participation in the falsification. He insisted that Dy Quioyo had sought his opinion
on Shirley’s petition for the annulment of her marriage; that he had given advice on the pertinent
laws involved and the different grounds for the annulment of marriage; that in June 2004, Dy
Quioyo had gone back to him to present a copy of what appeared to be a court decision;14 that
Dy Quioyo had then admitted to him that he had caused the falsification of the decision; that he
had advised Dy Quioyo that the falsified decision would not hold up in an investigation; that Dy
Quioyo, an overseas Filipino worker (OFW), had previously resorted to people on Recto Avenue
in Manila to solve his documentation problems as an OFW; and that he had also learned from
Atty. Angeles Orquia, Jr. that one Mrs. Florencia Jalipa, a resident of Igbalangao, Bugasong,
Antique, had executed a sworn statement before Police Investigator Herminio Dayrit with the
assistance of Atty. Orquia, Jr. to the effect that her late husband, Manuel Jalipa, had been
responsible for making the falsified document at the instance of Dy Quioyo.15
Thereafter, the Court issued its resolution16 treating the respondent’s counter-affidavit as his
comment, and referred the case to the Integrated Bar of the Philippines (IBP) for investigation,
report and recommendation.
The IBP’s Report and Recommendation
In a report and recommendation dated June 14, 2006,17 Atty. Lolita A. Quisumbing, the IBP
Investigating Commissioner, found the respondent guilty of serious misconduct and violations of
the Attorney’s Oath and Code of Professional Responsibility , and recommended his suspension
from the practice of law for one year. She concluded that the respondent had forged the
purported decision of Judge Penuela by making it appear that Special Proceedings No. 084
concerned a petition for declaration of presumptive death of Rey Laserna, with Shirley Quioyo
as the petitioner, when in truth and in fact the proceedings related to the petition for declaration
of presumptive death of Rolando Austria, with Serena Catin Austria as the petitioner;18 and that
the respondent had received P60,000.00 from Dy Quioyo for the falsified decision. She
rationalized her conclusions thusly:
Respondent’s denials are not worthy of merit. Respondent contends that it was one Manuel
Jalipa (deceased) who facilitated the issuance and as proof thereof, he presented the sworn
statement of the widow of Florencia Jalipa (sic). Such a contention is hard to believe. In the first
place, if the decision was obtained in Recto, Manila, why was it an almost verbatim reproduction
of the authentic decision on file in Judge Penuela’s branch except for the names and dates?
Respondent failed to explain this. Secondly, respondent did not attend the NBI investigation and
merely invoked his right to remain silent. If his side of the story were true, he should have made
this known in the investigation. His story therefore appears to have been a mere afterthought.
Finally, there is no plausible reason why Dy Quioyo and his sister, Mary Rose Quioyo would
falsely implicate him in this incident.19
In its Resolution No. XVII-2007-063 dated February 1, 200,20 the IBP Board of Governors
adopted and approved, with modification, the report and recommendation of the Investigating
Commissioner by suspending the respondent from the practice of law for six years.
On December 11, 2008, the IBP Board of Governors passed Resolution No. XVIII-2008-70921
denying the respondent’s motion for reconsideration and affirming Resolution No. XVII-2007-
063. The IBP Board of Governors then forwarded the case to the Court in accordance with
Section 12(b), Rule 139-B22 of the Rules of Court.
On January 11, 2011, the Court resolved: (1) to treat the respondent’s comment/opposition as his
appeal by petition for review; (2) to consider the complainant’s reply as his comment on the
petition for review; (3) to require the respondent to file a reply to the complainant’s comment
within 10 days from notice; and (4) to direct the IBP to transmit the original records of the case
within 15 days from notice.
Ruling
We affirm the findings of the IBP Board of Governors. Indeed, the respondent was guilty of
grave misconduct for falsifying a court decision in consideration of a sum of money.
The respondent’s main defense consisted in blanket denial of the imputation. He insisted that he
had had no hand in the falsification, and claimed that the falsification had been the handiwork of
Dy Quioyo. He implied that Dy Quioyo had resorted to the shady characters in Recto Avenue in
Manila to resolve the problems he had encountered as an OFW, hinting that Dy Quioyo had a
history of employing unscrupulous means to achieve his ends.
However, the respondent’s denial and his implication against Dy Quioyo in the illicit generation
of the falsified decision are not persuasive. Dy Quioyo’s categorical declaration on the
respondent’s personal responsibility for the falsified decision, which by nature was positive
evidence, was not overcome by the respondent’s blanket denial, which by nature was negative
evidence.23
Also, the imputation of wrongdoing against Dy Quioyo lacked credible specifics and did not
command credence.1âwphi1 It is worthy to note, too, that the respondent filed his counter-
affidavit only after the Court, through the en banc resolution of May 10, 2005, had required him
to comment.24 The belatedness of his response exposed his blanket denial as nothing more than
an after thought.
The respondent relied on the sworn statement supposedly executed by Mrs. Jalipa that declared
that her deceased husband had been instrumental in the falsification of the forged decision. But
such reliance was outrightly worthless, for the sworn statement of the wife was rendered
unreliable due to its patently hearsay character. In addition, the unworthiness of the sworn
statement as proof of authorship of the falsification by the husband is immediately exposed and
betrayed by the falsified decision being an almost verbatim reproduction of the authentic
decision penned by Judge Penuela in the real Special Proceedings Case No. 084.
In light of the established circumstances, the respondent was guilty of grave misconduct for
having authored the falsification of the decision in a non-existent court proceeding. Canon 7 of
the Code of Professional Responsibility demands that all lawyers should uphold at all times the
dignity and integrity of the Legal Profession. Rule 7.03 of the Code of Professional
Responsibility states that "a lawyer shall not engage in conduct that adversely reflects on his
fitness to practice law, nor shall he whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession." Lawyers are further required by Rule 1.01 of the
Code of Professional Responsibility not to engage in any unlawful, dishonest and immoral or
deceitful conduct.
Gross immorality, conviction of a crime involving moral turpitude, or fraudulent transactions can
justify a lawyer’s disbarment or suspension from the practice of law.25 Specifically, the
deliberate falsification of the court decision by the respondent was an act that reflected a high
degree of moral turpitude on his part. Worse, the act made a mockery of the administration of
justice in this country, given the purpose of the falsification, which was to mislead a foreign
tribunal on the personal status of a person. He thereby became unworthy of continuing as a
member of the Bar.
It then becomes timely to remind all members of the Philippine Bar that they should do nothing
that may in any way or degree lessen the confidence of the public in their professional fidelity
and integrity.26 The Court will not hesitate to wield its heavy hand of discipline on those among
them who wittingly and willingly fail to meet the enduring demands of their Attorney’s Oath for
them to:
x x x support the Constitution and obey the laws as well as the legal orders of the duly
constituted authorities therein; xxx do no falsehood, nor consent to the doing of any in court; x x
x not wittingly or willingly promote or sue on groundless, false or unlawful suit, nor give aid nor
consent to the same; x x x delay no man for money or malice, and x x x conduct themselves as
lawyers according to the best of their knowledge and discretion with all good fidelity as well to
the courts as to their clients x x x.
No lawyer should ever lose sight of the verity that the practice of the legal profession is always a
privilege that the Court extends only to the deserving, and that the Court may withdraw or deny
the privilege to him who fails to observe and respect the Lawyer’s Oath and the canons of ethical
conduct in his professional and private capacities. He may be disbarred or suspended from the
practice of law not only for acts and omissions of malpractice and for dishonesty in his
professional dealings, but also for gross misconduct not directly connected with his professional
duties that reveal his unfitness for the office and his unworthiness of the principles that the
privilege to practice law confers upon him.27 Verily, no lawyer is immune from the disciplinary
authority of the Court whose duty and obligation are to investigate and punish lawyer
misconduct committed either in a professional or private capacity.28 The test is whether the
conduct shows the lawyer to be wanting in moral character, honesty, probity, and good
demeanor, and whether the conduct renders the lawyer unworthy to continue as an officer of the
Court.29 WHEREFORE, the Court FINDS AND PRONOUNCES ASST. PROVINCIAL
PROSECUTOR SALVADOR N. PE, JR. guilty of violating Rule 1.01 of Canon 1, and Rule
7.03 of Canon 7 of the Code of Professional Responsibility, and DISBARS him effective upon
receipt of this decision.
The Court DIRECTS the Bar Confidant to remove the name of ASST. PROVINCIAL
PROSECUTOR SALVADOR N. PE, JR. from the Roll of Attorneys.
This decision is without prejudice to any pending or contemplated proceedings to be initiated

against ASST. PROVINCIAL PROSECUTOR SALVADOR N. PE, JR.
Let copies of this decision be furnished to the Office of the Bar Confidant the Office of the Court
Administrator for dissemination to all courts of the country and to the Integrated Bar of the
Philippines.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice
PRESBITERO J. LEONARDO-DE
ANTONIO T. CARPIO
CASTRO
Associate Justice
Associate Justice

(On Leave)
ROBERTO A. ABAD
Associate Justice
Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

MARVIC MARIO VICTOR F.

LEONEN
Associate Justice
Associate Justice
Footnotes
1
2
Id.
3
Id. at 22.
4
Id. at 23-28.
5
Id. at 33-34.
6
Id. at 12-13.
7
Id. at 55.
8
Id. at 56.
9
Id. at 58.
10
Id. at 8-11.
11
Id. at 7.
12
Id. at 6.
13
Id. at 64-67.
14
Id. at 65.
15
Id. at 67.
16
Id. at 72.
17
18
Id. at 87.
19
Id.
20
Id. at 82.
21
Id. at 98.
22
Section 12(b). If the Board, by the vote of a majority of its total membership,
determines that the respondent should be suspended from the practice of law or disbarred,
it shall issue a resolution setting forth its findings and recommendations which, together
with the whole record of the case, shall forthwith be transmitted to the Supreme Court for
final action.
23
People v. Biago, G.R. No. 54411, February 21, 1990, 182 SCRA 411, 418.
24
25
Agpalo, Comments on the Code of Professional Responsibility and the Code of
Judicial Conduct, p. 62 (2001).
26
Sipin-Nabor v. Baterina, A.C. No. 4073, June 28, 2001, 360 SCRA 6, 10.
27
Lizaso v. Amante , A.C. No. 2019, June 3, 1991, 198 SCRA 1, 10; citing In Re Vicente
Pelaez, 44 Phil. 567 (1923).
28
Tan, Jr. v. Gumba, A.C No. 9000, October 5, 2011, 658 SCRA 527, 532.
29
Roa v. Moreno , A.C. No. 8382, April 21, 2010, 618 SCRA 693, 699, citing Ronquillo
v. Cezar, A.C. No. 6288, June 16, 2006, 491 SCRA 1, 5-6.
SUPREME COURT
Manila
EN BANC
A.C. No. 9401 October 22, 2013
JOCELYN DE LEON, Complainant,

vs.
ATTY. TYRONE PEDREÑA, Respondent.
DECISION
BERSAMIN, J.:
A lawyer who commits overt acts of sexual harassment against a female client is guilty of
reprehensible conduct that is unbecoming of a member of the Bar and may be condignly
punished with suspension from the practice of law.
Antecedents
Jocelyn de Leon filed with the Integrated Bar of the Philippines (IBP) a complaint for disbarment
or suspension from the practice of law against Atty. Tyrone Pedreña, a Public Attorney. She
averred in her complaint-affidavit that Atty. Pedreña had sexually harassed her as follows:
1. On January 30, 2006, at about 10:00 in the morning, I went to the Public Attorney’s
Office in Parañaque City, in order to inquire from ATTY. TYRONE PEDREÑA about
the status of my case for support for my two minor children against my husband, which
case is being handled by Atty. Pedreña;
2. At that time, said Atty. Pedreña was at a court hearing, so I waited at his office until he
arrived at about 11:45 a.m. Atty. Pedreña told me to go ahead to Tita Babes Restaurant so
we could take our lunch together and to talk about my said case;
3. While we were eating at the said restaurant, he asked me many personal matters rather
than to discuss my said case. But still, I answered him with respect, for he was my
lawyer;
4. After we took our lunch, he told me to just go back on February 1, 2006 at 10:00 a.m.
because according to him, my said case was quite difficult, that he needed more time to
study;
5. Since Atty. Pedreña was also already going home then, he told me then to ride with
him and he would just drop me by the jeepney station;
6. Although I refused to ride with him, he persistently convinced me to get in the car, and
so I acceded to his request so as not to offend him;
7. Right after we left the parking lot and not yet too far from the City Hall, Atty. Pedreña
immediately held my left hand with his right hand, insisted me to get closer with him and
laid me on his shoulder;
8. I immediately responded by saying "AYOKO HO!" But he persisted in trying to get

hold of my hand and he also tried very hard to inserting (sic) his finger into my firmly
closed hand. Thus, I became very afraid and at the same time offended for his lack of
respect for me at that moment; 9. Despite my resistance, he continued rubbing my left
leg. I was then attempting to remove his hand on my leg, but he grabbed my hand and
forced it to put (sic) on his penis;
10. Because I was already really afraid at that moment, I continued to wrestle and
struggle, and as I saw that we were already approaching the 7-Eleven Store, the place
where I was supposed to get off, Atty. Pedreña made another move of pressing his finger
against my private part;
11. I thereafter tried at all cost to unlock the car’s door and told him categorically that I
was getting off the car. But because the traffic light was on green, he accelerated a bit
more instead, but sensing my insistence to get off, he stopped the car, and allowed me to
get off. He then reminded me to see him on February 1, 2006 at 10:00 a.m. for the
continuation of hearing of my case;
12. That on February 1, 2006, I had to come for my case, but this time, I brought with me
my five-year-old child to avoid another incident. I was not able to see Atty. Pedreña then,
so I just signed some documents;1
In his answer, Atty. Pedreña averred that De Leon’s allegations were unsubstantiated; that
entertaining such a complaint would open the gates to those who had evil desires to destroy the
names of good lawyers; that the complaint was premature and should be dismissed on the ground
of forum shopping because De Leon had already charged him with acts of lasciviousness in the
Parañaque City Prosecutor’s Office; and that he had also filed a complaint for theft against De
Leon.2
Attached to Atty. Pedreña’s answer were his counter-affidavit in the criminal case for acts of
lasciviousness and his complaint-affidavit for theft. In his counter affidavit, Atty. Pedreña
admitted giving a ride to De Leon, but he vehemently denied making sexual advances on her,
insisting that she had sat very close to him during the ride that even made it hard for him to shift
gears, and that the ride had lasted for only two to three minutes.3 He claimed that De Leon was
allowing herself to be used by his detractors in the Public Attorney’s Office (PAO) after he had
opposed the practice of certain PAO staff members of charging indigent clients for every
document that they prepared. In his complaint affidavit for theft, he stated that he had another
passenger in his car at the time he gave a ride to De Leon, who did not notice the presence of the
other passenger because the ride lasted for only two to three minutes; and that the other
passenger was Emma Crespo, who executed her own affidavit attesting that she had witnessed
De Leon’s act of taking his (Pedreña) cellphone from the handbrake box of the car.4
Only De Leon appeared during the hearing.5 Hence, Atty. Pedreña was deemed to have waived
his right to participate in the proceedings.6
Thereafter, the IBP Investigating Commissioner recommended the disbarment of Atty. Pedreña
and the striking off of his name from the Roll of Attorneys.7 Holding that a disbarment case was
sui generis and could proceed independently of the criminal case that was based on the same
facts; and that the proceedings herein need not wait until the criminal case for acts of
lasciviousness brought against Atty. Pedreña was finally resolved, the IBP Investigating
Commissioner found that Atty. Pedreña had made sexual advances on De Leon in violation of
Rule 1.018 and Rule 7.039 of the Code of Professional Responsibility.
In its Resolution No. XVIII-2007-83 dated September 19, 2007, the IBP Board of Governors
adopted and approved with modification the report and recommendation of the IBP Investigating
Commissioner, and imposed upon Atty. Pedreña suspension from the practice of law for three
months.10
Atty. Pedreña filed a motion for reconsideration with the IBP,11 which adopted and approved
Resolution No. XX-2012-43 dated January 15, 2012, denying the motion and affirming with
modification its Resolution No. XVIII-2007-83 by increasing the period of suspension to six
months.12
On February 28, 2012, the IBP Board of Governors transmitted to the Court Resolution No. XX-
2012-43 and the records of the case for final approval.13
In the Resolution dated April 24, 2012, the Court noted the IBP Board of Governors’ notice of
Resolution No. XX-2012-43.14
Ruling
The report and recommendation of the Investigating Commissioner stated thusly:
There is no doubt that Complainant was able to prove her case against the Respondent. During
the clarificatory hearing, she was straightforward and spontaneous in answering the questions
propounded on her. Her account of the incident that happened on 30 January 2006 was consistent
with the matters she stated in her Complaint and Verified Position Paper.
On the other hand, Respondent’s defenses are not credible enough to rebut the claims of
Complainant. His defenses are replete with
Decision 5 A.C. No. 9401 inconsistencies and his actuations in the entire proceedings show lack
of integrity in his dealings with both the Complainant and this Commission.
xxxx
We find no merit at all in the defenses put forth by Respondent. The Theft case filed by
Respondent is a mere afterthought on his part. We note that such criminal complaint hinged on a
claim that there was another person during that incident who allegedly saw Complainant stealing
Respondent’s mobile phone. Yet, in Respondent’s Position Paper and in his Counter-Affidavit to
the Acts of Lasciviousness case, which was executed after the institution of the criminal
complaint for Theft, Respondent never mentioned anything about a third person being present
during the incident. If the presence of this third person was crucial to prove his case against
herein Complainant, there is no reason why this allegation would be omitted in his Position
Paper and Counter-Affidavit to at least support his defense.
Furthermore, Respondent’s contention that Complainant is being used by his detractors is self-
serving. His memo regarding the amount of RATA he receives is a relatively harmless query to a
higher authority, which could not possibly motivate his colleagues to prod other people to file
cases against Respondent.15
We adopt the findings and conclusions of the Investigating Commissioner, as sustained by the
IBP Board of Governors, for being substantiated by the evidence on record.
The records show that Atty. Pedreña rubbed the complainant’s right leg with his hand; tried to
insert his finger into her firmly closed hand; grabbed her hand and forcibly placed it on his
crotch area; and pressed his finger against her private part. Given the circumstances in which he
committed them, his acts were not merely offensive and undesirable but repulsive, disgraceful
and grossly immoral. They constituted misconduct on the part of any lawyer. In this regard, it
bears stressing that immoral conduct is gross when it is so corrupt as to constitute a criminal act,
or so unprincipled as to be reprehensible to a high degree, or when committed under such
scandalous or revolting circumstances as to shock the community’s sense of decency.16
The possession of good moral character is both a condition precedent and a continuing
requirement to warrant admission to the Bar and to retain membership in the Legal Profession.
Members of the Bar are clearly duty- bound to observe the highest degree of morality and
integrity in order to safeguard the reputation of the Bar. Any errant behavior on the part of a
lawyer that tends to expose a deficiency in moral character, honesty, probity or good demeanor,
be it in the lawyer’s public or private activities, is sufficient to warrant the lawyer’s suspension
or disbarment.17 Section 27, Rule 138 of the Rules of Court, provides that a member of the Bar
may be disbarred or suspended for grossly immoral conduct, or violation of his oath as a lawyer.
Towards that end, we have not been remiss in reminding members of the Bar to live up to the
standards and norms of the Legal Profession by upholding the ideals and principles embodied in
the Code of Professional Responsibility.
Atty. Pedreña’s misconduct was aggravated by the fact that he was then a Public Attorney
mandated to provide free legal service to indigent litigants, and by the fact that De Leon was then
such a client. He also disregarded his oath as a public officer to serve others and to be
accountable at all times, because he thereby took advantage of her vulnerability as a client then
in desperate need of his legal assistance.
Yet, even as we agree with the findings of the IBP, we consider the recommended penalty of
suspension for six months not commensurate with the gravity of the offensive acts committed.
Verily, the determination of the penalty to impose on an erring lawyer is within the Court’s
discretion.1âwphi1 The exercise of the discretion should neither be arbitrary nor despotic, nor
motivated by any animosity or prejudice towards the lawyer, but should instead be ever
controlled by the imperative need to scrupulously guard the purity and independence of the Bar
and to exact from the lawyer strict compliance with his duties to the Court, to his client, to his
brethren in the profession, and to the general public.18
In determining the appropriate penalty to be imposed on Atty. Pedreña, therefore, we take into
consideration judicial precedents on gross immoral conduct bearing on sexual matters. Although
most of the judicial precedents dealt with lawyers who engaged in extramarital affairs, or
cohabited with women other than their wives,19 they are nonetheless helpful in gauging the
degree of immorality committed by the respondent.
In Advincula v. Macabata,20 the Court held that the errant lawyer’s acts of turning his client’s
head towards him and then kissing her on the lips were distasteful, but still ruled that such acts,
albeit offensive and undesirable, were not grossly immoral. Hence, the respondent lawyer was
merely reprimanded but reminded to be more prudent and cautious in his dealings with clients.
In Barrientos v. Daarol,21 the respondent lawyer was disbarred, but the severest penalty was
imposed not only because of his engaging in illicit sexual relations, but also because of his
deceit. He had been already married and was about 41 years old when he proposed marriage to a
20-year-old girl. He succeeded in his seduction of her, and made her pregnant. He not only
suggested that she abort the pregnancy, but he also breached his promise to marry her, and, in the
end, even deserted her and their child.
In Delos Reyes v. Aznar,22 the Court adjudged the respondent lawyer, a married man with
children, highly immoral for having taken advantage of his position as the chairman of the
College of Medicine of his school in enticing the complainant, then a student in the college, to
have carnal knowledge with him under the threat that she would flunk in all her subjects should
she refuse. The respondent was disbarred for grossly immoral conduct.
Without diminishing the gravity of the complainant’s sad experience, however, we consider the
acts committed by Atty. Pedreña to be not of the same degree as the acts punished under the
cited judicial precedents. Neither did his acts approximate the act committed by the respondent
lawyer in Calub v. Suller,23 whereby we disbarred the respondent lawyer for raping his
neighbor’s wife notwithstanding that his guilt was not proved beyond reasonable doubt in his
criminal prosecution for the crime. We further note that, unlike in Barrientos where there was
deceit and in Delos Reyes where there were threats and taking advantage of the respondent
lawyer’s position, Atty. Pedreña did not employ any scheme to satiate his lust, but, instead, he
desisted upon the first signs of the complainant’s firm refusal to give in to his advances.
In view of these considerations, the penalty of suspension from the practice of law for two years
is fitting and just.
WHEREFORE, the Court SUSPENDS ATTY. TYRONE PEDREÑA from the practice of law
for two years effective upon receipt of this decision, with a STERN WARNING that a repetition
of the same or similar acts will be dealt with more severely.
Let copies of this decision be furnished to the Office of the Bar Confidant to the Integrated Bar
of the Philippines and to the Office of the Court Administrator for dissemination to all courts
throughout the country.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice
(On Leave)
DIOSDADO M. PERALTA
Associate Justice
Associate Justice




Associate Justice
Footnotes
1
Rollo, pp. 1-2.
2
Id. at 5-6.
3
Id. at 7-8.
4
Id. at 10-11.
5
Id. at 120.
6
Id. at 117.
7
Id. at 151.
8
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
9
Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on his fitness to
practice law, nor shall he, whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession.
10
Rollo, p. 283.
11
Id. at 152-156.
12
Id. at 282.
13
Id. at 281.
14
Id. at 294.
15
Id. at 149-150.
16
Ventura v. Samson, A.C. No. 9608, November 27, 2012, 686 SCRA 430, 441.
17
Id. at 440-441, citing Zaguirre v. Castillo, Admin. Case No. 4921, March 6, 2003, 398
SCRA 658, 666.
18
Advincula v. Macabata, A.C. No. 7204, March 7, 2007, 517 SCRA 600, 616.
19
See Dantes v. Dantes, A.C. No. 6486, September 22, 2004, 438 SCRA 582;
Cojuangco, Jr. v. Palma, Admin. Case No. 2474, September 15, 2004, 438 SCRA 306;
Macarrubo v. Macarrubo, A.C. No. 6148, February 27, 2004, 424 SCRA 42; Obusan v.
Obusan, Jr., A.C. No. 1392, 128 SCRA 485; Toledo v. Toledo, Adm. Case No. 266, April
27, 1963, 7 SCRA 757.
20
21
Adm. Case No. 1512, January 29, 1993, 218 SCRA 30, 39.
22
Adm. Case No. 1334, November 28, 1989, 179 SCRA 653.
23
Adm. Case No. 1474, January 28, 2000, 323 SCRA 556.
SUPREME COURT
Manila
EN BANC
G.R. No. 174321 October 22, 2013
ROLANDO GANZON, Petitioner,

vs.
FERNANDO ARLOS, Respondent.
DECISION
BERSAMIN, J.:
A government employee who is found guilty of grave misconduct may be dismissed from the
service even upon the first offense.
The Case
Petitioner Rolando Ganzon, an employee of the Department of Interior and Local Government
(DILG), seeks the reversal of his dismissal from the service and the accessory penalties on the
ground of grave misconduct.
Antecedents
The DILG Regional Office in Port San Pedro, Iloilo City held its Christmas party on December
17, 1999 at the office parking lot. When the Christmas party was about to end at 7:30 in the
evening, respondent Fernando Arlos (Arlos), then the OIC Provincial Director of DILG, left to
get some documents from the Office of the Operations Division located at the second floor of the
building. While Arlos was making his way to the stairs, Ganzon suddenly approached and pulled
out a short firearm of unknown caliber from his waist and with no provocation pointed the
firearm at Arlos, angrily shouting in Ilongo: Nanding, hulat anay. Diin ang boss mo? Nga-a nga
wala man nya ako guin-patawag?1 Arlos responded: Ato ti sir Orendez sa may program. May
kuhaon lang ako sa ibabaw.2 Arlos parried Ganzon’s firearm-wielding hand and tried to proceed
towards the stairs, but Ganzon blocked his path, pushed him back, and again pointed the firearm
at Arlos’ chest. Sensing that Ganzon would shoot him then, Arlos quickly warded off Ganzon’s
firearm-wielding hand. At that instant, the firearm exploded and the bullet hit the floor. Ganzon
again aimed the firearm at Arlos, prompting the latter to run away as fast as he could. Ganzon
followed Arlos, and when they got to the gate of the building, Ganzon once more pushed him
back and pointed the firearm at him, saying: Patay ka!3 Ganzon held the firearm close to his
waistline to conceal it from the view of the other people present at the time.
At around 9:45 in the morning of December 21, 1999, Arlos went to the DILG office to see the
Regional Director upon the latter’s instruction. Ganzon, who was then standing near the entrance
to the building, shouted upon seeing Arlos enter the gate: O, ti ano?,4 obviously still referring to
the incident of December 17, 1999. Arlos answered: Ang kadto ko diri indi away, kundi
makigkita ako sa kay Director.5
The incidents of December 17, 1999 and December 21, 1999 impelled Arlos to administratively
charge Ganzon with grave misconduct.
On his part, Ganzon denied the charge and elected to undergo a formal investigation. During the
formal investigation conducted by Regional Office No. 6 of the Civil Service Commission (CSC
Regional Office), the parties agreed that in order to dispense with the presentation of witnesses
and other evidence, they would just adopt the evidence presented in the pending criminal
prosecution for attempted homicide (Criminal Case No. 648-2000 entitled People v. Ganzon ) in
the Municipal Circuit Trial Court (Branch 1) in Iloilo City arising from the same incident.6
Accordingly, Arlos was directed to submit the complete transcripts of stenographic notes of the
proceedings in Criminal Case No. 648-2000.
The witnesses for the Prosecution in Criminal Case No. 648-2000 were Arlos, DILG employee
Nestor Sayno, DILG Provincial Director Eliseo Orendez, and Fernando Totesora, Jr., the security
guard then assigned at the DILG Regional Office. They attested to what had transpired in the
evening of December 17, 1999, specifically, that Ganzon had threatened and aimed a firearm at
Arlos.7
In his turn, Ganzon presented himself and two others, namely, Bobby Pepino, also an employee
of the DILG Regional Office, and Voltaire Guides.8 They described a different version of the
incident, to wit:
ROLANDO GANZON testified that he is presently assigned with the Planning Unit of DILG.
He has been connected with the DILG for twenty-five (25) years. From 1994 to 1999 he was
assigned as DILG Officer of the Municipality of Barotac Viejo, Iloilo. In September 1999, he
transferred to the Regional Office. On December 17, 1999, about 7:30 in the evening, he was
with Bobby Pepino and Voltaire Guides waiting for the drinks to be served to guests in their
Christmas Party. Fernando Arlos arrived and asked them what they were doing at the lobby. He
answered that they were waiting for the drinks to be served.
Fernando said that they should be getting better performance ratings. He immediately responded
that sometimes performance ratings are disregarded or even changed. Fernando got angry, and in
order to avoid further discussion, Rolando stood up. At that time, guests were starting to arrive.
Fernando pushed his body against Rolando at the same time raising his right hand. Rolando held
his hand; Fernando raised his left but again Rolando held it. They then pushed and shoved each
other to the gate.
At the gate, Fernando immediately left. Rolando went back to the administrative office to take
his dinner. After eating, he went to the quadrangle to watch the program. At the quadrangle, he
saw Provincial Director Orendez, Regional Director Reyes, and Presidential Consultant Jonathan
Sanico. He stayed there up to 2 o’clock in the morning. During that time no policeman came to
arrest him.
He further testified that before the incident he had no grudge or ill feeling against Fernando
Arlos. He also testified about the hole located at the lobby of the Regional Office. He said that no
shell or slug was recovered in connection with the subject incident. He testified about the change
made on his performance rating and that he would often meet Fernando Arlos and no altercation
or heated argument transpired between them.9
Ruling of CSC Regional Office
On February 7, 2002, the CSC Regional Office rendered its decision finding Ganzon guilty of
grave misconduct, ruling thusly:
WHEREFORE, Rolando Ganzon is hereby found guilty of Grave Misconduct and meted out the
penalty of dismissal from the service with all its accessory penalties.
Let copies of this Decision be furnished Fernando Arlos, Rolando Ganzon, Atty. Virgilio Teruel,
Atty. Rey Padilla, Director Rexdito Reyes of DILG Regional Office No. 6, Iloilo City, the GSIS
Branch Manager in Iloilo City and Director Purita H. Escobia of CSC Iloilo Provincial Office at
their known addresses.10
Ruling of CSC Main
Ganzon appealed to the Civil Service Commission Main Office (CSC), which affirmed the
contested ruling of the CSC Regional Office on January 27, 2004, to wit:
WHEREFORE , the instant appeal is hereby DISMISSED . The decision of the Civil Service
Regional Office No. VI finding Rolando Ganzon guilty of grave misconduct and penalizing him
with dismissal from the service, is affirmed in all aspects. It should be understood that the
penalty of dismissal as imposed in this case carries with it such accessory penalties as forfeiture
of retirement benefits, and disqualification from public employment.11
Ganzon moved for a reconsideration, but his motion to that effect was denied through the
resolution dated November 9, 2004.
Ruling of the Court of Appeals
Ganzon appealed by petition for review in the Court of Appeals (CA), submitting the following
issues, namely:
1. WHETHER OR NOT THE ACT ALLEGEDLY COMMITTED BY THE

PETITIONER WAS ESSENTIALLY CONNECTED WITH THE PERFORMANCE OF
HIS OFFICIAL DUTIES.
2. WHETHER OR NOT THE OFFENSE CHARGED CAN BE CONSIDERED AS

SERVICE CONNECTED DESPITE THE FACT THAT IT IS NOT ESSENTIALLY
CONNECTED WITH THE OFFICE OF THE PETITIONER AND WAS NOT
PERPETRATED WHILE IN PERFORMANCE OF HIS OFFICIAL FUNCTION.
3. WHETHER OR NOT THE CIVIL SERVICE COMMISSION CAN HOLD LIABLE
THE PETITIONER FOR GRAVE MISCONDUCT DESPITE HIS ACQUITTAL IN
THE CRIMINAL CASE FILED AGAINST HIM.
4. WHETHER OR NOT THE PENALTY OF DISMISSAL IS UNJUST AND

EXCESSIVE.12
On February 15, 2006, the CA promulgated its assailed decision affirming the ruling of the
CSC,13 thus:
WHEREFORE, finding no merit in the present petition, the same is hereby DISMISSED and the
assailed judgments AFFIRMED in toto. Costs against petitioner.
SO ORDERED.
On August 3, 2006, the CA denied Ganzon’s motion for reconsideration.14
Issues
Hence, Ganzon has appealed to the Court upon the following issues:
I. WHETHER OR NOT ATTENDING A CHRISTMAS PARTY AS REQUIRED BY

THE OFFICE IS AN OFFICIAL FUNCTION AND THAT ANY UNTOWARD
INCIDENT COMMITTED DURING SUCH CHRISTMAS PARTY IS
AUTOMATICALLY CONSIDERED SERVICE RELATED AND THAT THE
OFFENDER COULD BE LIABLE FOR GRAVE MISCONDUCT?
II. WHETHER OR NOT THE ALLEGED ACT COMMITTED BY THE PETITIONER

WAS INTIMATELY RELATED TO HIS OFFICE IN ORDER TO CONSIDER IT AS
GRAVE MISCONDUCT IN THE CONTEMPLATION OF THE LAW.
III. WHETHER OR NOT THE PENALTY OF DISMISSAL IS UNJUST AND

EXCESSIVE.15
Ruling of the Court
The appeal has no merit.
Misconduct is intentional wrongdoing or deliberate violation of a rule of law or standard of

behavior. To constitute an administrative offense, misconduct should relate to or be connected
with the performance of the official functions and duties of a public officer. In grave misconduct,
as distinguished from simple misconduct, the elements of corruption, clear intent to violate the
law, or flagrant disregard of an established rule must be manifest.16
In accordance with Section 46 of Subtitle A, Title I, Book V of the Administrative Code of 1987
(Executive Order No. 292), misconduct is among the grounds for disciplinary action, but no
officer or employee in the Civil Service shall be suspended or dismissed except for cause as
provided by law and after due process. It is cogent to mention that the Revised Uniform Rules on
Administrative Cases in the Civil Service , which governs the conduct of disciplinary and non-
disciplinary proceedings in administrative cases, classifies grave misconduct as a grave
administrative offense.17
Did Ganzon’s act of aiming his loaded firearm at Arlos and menacing him with it constitute
grave misconduct in the context of the foregoing provisions?
Undoubtedly it did. Drawing and pointing the loaded firearm at Arlos evinced the intent on the
part of Ganzon to cause some harm upon Arlos on whom he vented his resentment of the poor
performance rating he received. Considering that Ganzon pointed his loaded firearm at Arlos not
only once, but four times, Ganzon’s menacing acts engendered in the mind of Arlos the well-
founded belief that Arlos’ life could be in imminent danger. That the firearm exploded when
Arlos parried Ganzon’s firearm-wielding hand did not help dissipate the belief.
Nonetheless, Ganzon projects that his acts did not constitute grave misconduct in the
contemplation of the law because they were not committed in relation to his performance of
duty; and that the Christmas party was not an official function as to render any untoward incident
committed on the occasion thereof a misconduct. He posits that his offense could exist without
the office; and that the holding of the office was not a constituent element of his offense.
We disagree.
The Court stressed in Largo v. Court of Appeals18 the criteria that an act, to constitute a
misconduct, must not be committed in his private capacity and should bear a direct relation to
and be connected with the performance of his official duties.
Ganzon’s acts met the criteria in Largo v. Court of Appeals . To begin with, he was not acting in
a private capacity when he acted menacingly towards Arlos, it being clear that his resentment of
his poor performance rating, surely a matter that concerned his performance of duty, motivated
his confronting the latter. Moreover, it did not matter that his acts were committed outside of
office hours, because they were intimately connected to the office of the offender. An act is
intimately connected to the office of the offender if it is committed as the consequence of the
performance of the office by him, or if it cannot exist without the office even if public office is
not an element of the crime in the abstract. This was the thrust in Alarilla v. Sandiganbayan,19
with the Court citing ample jurisprudence.20
In Alarilla v. Sandiganbayan , one of the two main issues was whether the crime of grave threats
charged against the accused had been committed in relation to his office. The resolution of the
issue would determine whether or not it was the Sandiganbayan that had jurisdiction to try him.
The accused contended that it was not established that the crime charged had been committed by
him while in the discharge of or as the consequence of his official functions as municipal mayor.
He pointed out that public office was not an essential ingredient of grave threats, the crime
charged, which could be committed with the same facility by a public officer and a private
individual alike. The Court resolved that the crime charged was properly within the jurisdiction
of the Sandiganbayan because the amended information contained allegations showing that
Alarilla had taken advantage of his official functions as municipal mayor when he committed the
crime of grave threats against the complainant, a municipal councilor, by aiming a gun at and
threatening to kill the latter on the occasion of a public hearing during which the latter delivered
a privilege speech critical of Alarilla’s administration. The Court explained that the crime
charged was "intimately connected with the discharge of Alarilla’s official functions" because
the crime charged was Alarilla’s response to the complainant’s attack against his performance as
a mayor; and that if Alarilla was not the mayor, "he would not have been irritated or angered by
whatever private complainant might have said during said privilege speech."21
Considering that Ganzon resented the poor performance rating he had received, and his
resentment caused his aggressive confrontation of Arlos, it definitely appears that Ganzon’s
offense could not be separated from his performance of duty. Indeed, under Alarilla v.
Sandiganbayan and its progenitor rulings, an act that is the consequence of the discharge of the
employee’s official functions or the performance of his duties, or that is relevant to his office or
to the discharge of his official functions is justly considered as service-related.
The fact that the acts of Ganzon were committed within the premises of the DILG Regional
Office No. 6 strengthens our view that such acts could not but be connected to Ganzon’s public
employment. Verily, the Court has regarded the commission of offensive overt acts by public
officials and employees within the premises of their public offices to be deserving of
administrative reprobation.
For instance, in Quiroz v. Orfila,22 the court employees’ conduct of shouting at each other and
quarreling within the court premises and during working hours were considered as exhibiting
discourtesy and disrespect to their co-workers and to the court itself. Their behavior was held to
be contrary to the ethical standard demanded by Republic Act No. 6713 (Code of Conduct and
Ethical Standards for Public Officials and Employees).
Another illustrative instance is Baloloy v. Flores,23 where the respondent Sherwin M. Baloloy
was charged with misconduct because:
x x x complainant alleged that as he was going back to his office after delivering court
documents, he noticed respondent sitting on a bench, staring menacingly at him. Without any
warning, respondent stood up and boxed him several times in the face. To avoid further harm,
complainant ran towards room 315 and once he was inside, the secretary therein locked the door.
Respondent pursued him and started kicking and banging at the door, all the while shouting
invectives at him. Respondent left after apparently sensing the alarm he was causing.
A few minutes after respondents left, complainant left room 315 accompanied by a friend named
Demet. They went to respondent’s office to report the incident to respondent’s superior. When
they got there, however, they saw respondent holding a screwdriver, provoking them to fight.
The branch clerk of court intervened and requested Demet to take complainant to the hospital. x
x x.
Finding both the complainant as legal researcher and the respondent as process server guilty of
misconduct, the Court ruled that:
We have time and again emphasized that the conduct and behavior or everyone connected with
an office charged with the administration of justice must at all times be characterized by
propriety and decorum. This Court will not tolerate misconduct committed by court personnel,
particularly during office hours and within court premises. Such misconduct shows a total lack of
respect for the court, and erodes the good image of the judiciary in the eyes of the public.
Both complainant and respondent have fallen short of the standard of conduct required of court
employees. Fighting with each other during working hours shows disrespect not only of
coworkers but also of the court.24 (Emphasis supplied)
Although court employees were involved in the foregoing situations, while the conduct of an
employee of the DILG is the focus herein, the same considerations taken into account in the
former are applicable herein.
Even if the affair occurred outside of the regular work hours, Ganzon’s menacing attitude
towards Arlos still had no excuse, particularly as Arlos was his superior in the office hierarchy.
Section 4(c) of RA 6713 (Code of Conduct Standards for Public Officials and Employees)
fittingly provides:
(c) Justness and sincerity. – Public officials and employees shall remain true to the people at all
times. They must act with justness and sincerity and shall not discriminate against anyone,
especially the poor and the underprivileged. They shall at all times respect the rights of others,
and shall refrain from doing acts contrary to law, good morals, good customs, public policy,
public order, public safety and public interest. (Emphasis supplied)
It is almost superfluous to remind all public employees like Ganzon that the law of good manners
and proper decorum was law during as well as outside office hours.
Another ground for Ganzon’s appeal was that the administrative case should not have been
resolved independently of the criminal case; and that his eventual acquittal in the criminal case
precluded his administrative liability.
Again, the Court disagrees.
We uphold the CA’s following rumination on the matter, viz:
x x x. The mere fact that he was acquitted in the criminal case (said criminal case was based on
the same facts or incidents which gave rise to the instant administrative case) does not
ipso facto absolve him from administrative liability. Time and again, the Supreme Court has laid
down the doctrine that an administrative case is not dependent on the conviction or acquittal of
the criminal case because the evidence required in the proceedings therein is only substantial and
not proof beyond reasonable doubt.25
An administrative case is, as a rule, independent from criminal proceedings.1âwphi1 The
dismissal of a criminal case on the ground of insufficiency of evidence or the acquittal of an
accused who is also a respondent in an administrative case does not necessarily preclude the
administrative proceeding nor carry with it relief from administrative liability. This is because
the quantum of proof required in administrative proceedings is substantial evidence, unlike in
criminal cases which require proof beyond reasonable doubt. Substantial evidence, according to
Section 5 of Rule 133, Rules of Court, is "that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion." In contrast, proof beyond reasonable
doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute
certainty; moral certainty only is required, or that degree of proof which produces conviction in
an unprejudiced mind.26
Finally, Ganzon’s insistence that the penalty of dismissal from the service imposed on him was
unjustified and excessive is unwarranted.
After being duly found guilty of grave misconduct, Ganzon was rightly meted the penalty of
dismissal from the service for his first offense conformably with the Revised Uniform Rules on
Administrative Cases in the Civil Service,27 to wit:
RULE IV
Penalties
Section 52. Classification of Offenses. – Administrative offenses with corresponding penalties

are classified into grave, less grave or light, depending on their gravity or depravity and effects
on the government service.
A The following are grave offenses with their corresponding penalties:
1. Dishonesty;
xxxx
3. Grave Misconduct;
1st offense – Dismissal (Emphasis supplied)
In this regard, Section 56 and Section 58 of the Revised Uniform Rules on Administrative Cases
in the Civil Service respectively state that the penalty of dismissal shall result in the permanent
separation of the respondent from the service, with or without prejudice to criminal or civil
liability, and shall carry with it cancellation of eligibility, forfeiture of retirement benefits and the
perpetual disqualification from re-employment in the government service, unless otherwise
provided in the decision.
The Court deems it worthwhile to emphasize as a final word that the imposition of the correct
disciplinary measures upon erring public officials and employees has the primary objective of
the improvement of the public service and the preservation of the public s faith and confidence in
the Government. The punishment of the erring public officials and employees is secondary, but
is nonetheless in accord with the Constitution, which stresses in Section 1 of its Article XI that a
public office is a public trust, and commands that public officers must at all times be accountable
to the people, whom they must serve with utmost responsibility, integrity, loyalty, and efficiency.
WHEREFORE the Court AFFIRMS the decision promulgated by the Court of Appeals and
ORDERS petitioner Rolando Ganzon to pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice
(On Leave)
DIOSDADO M. PERALTA
Associate Justice
Associate Justice




Associate Justice
CERTIFICATION
Pursuant to Section 13 Article VIII of the Constitution I certify that the conclusions in the above
Chief Justice
Footnotes
1
Translated:- "Nanding, for a moment, where is your boss? [referring to Provincial
Director Eliseo D. Orender] Why did he not call for me? "
2
Translated:- "Sir Orendez is there in the program. I am just getting something from
upstairs.?"
3
Translated:- "You’re dead."
4
Translated:- "What now?"
5
Translated:- "I came here not to quarrel, but only to see the Director."
6
Rollo, p. 15.
7
Id. at 15-19.
8
Id. at 19-23.
9
Id. at 21-23.
10
Id. at 223.
11
Id. at 223-224.
12
Id. at 43.
13
Id. at 38-47.
14
Id. at 48-59.
15
Id. at 24.
16
Narvasa v. Sanchez, Jr., G.R. No. 169449, March 26, 2010, 616 SCRA 586, 591.
17
Rule IV, Section 5, Revised Uniform Rules on Administrative Cases in the Civil
Service, Civil Service Commission Memorandum Circular 19, Series of 1999, August 31,
1999.
18
G.R. No. 177244, November 20, 2007, 537 SCRA 721.
19
G.R. No. 136806, August 22, 2000, 338 SCRA 485, 497.
20
Cunanan v. Arceo, G.R. No. 116615, March 1, 1995, 242 SCRA 88; Sanchez v.
Demetriou, G.R. No. 111771-77, November 9, 1993, 227 SCRA 627; People v. Montejo,
108 Phil 613 (1960); Montilla v. Hilario, 90 Phil 49 (1951).
21
22
A.M. No. P-96-1210, May 7, 1997, 272 SCRA 324, 331.
23
A.M. No. P-99-1357, September 4, 2001, 364 SCRA 317-318.
24
Id. at 321.
25
Rollo, pp. 115-116.
26
27
Civil Service Commission Memorandum Circular 19, Series of 1999, August 31, 1999.
SUPREME COURT
Manila
EN BANC
G.R. No. 187854 November 12, 2013
RAY PETER O. VIVO, Petitioner,

vs.
PHILIPPINE AMUSEMENT AND GAME CORPORATION (PAGCOR), Respondent.
DECISION
BERSAMIN, J.:
By petition for review on certiorari the petitioner seeks the review and reversal of the decision
promulgated on February 27, 2009,1 whereby the Court of Appeals CA) reversed and set aside
the resolutions of the Civil Service Commission CSC) dated April 20072 and August 1, 2007.3
Also under review is the denial by the CA of the petitioner’s motion for reconsideration through
the resolution promulgated May 11, 2009.4
Antecedents
The petitioner was employed by respondent Philippine Amusement and Gaming Corporation
(PAGCOR) on September 9, 1986, and was PAGCOR’s Managing Head of its Gaming
Department at the time of his dismissal from office.5 On February 21, 2002, he received a letter
from Teresita S. Ela, the Senior Managing Head of PAGCOR’s Human Resources Department,
advising that he was being administratively charged with gross misconduct, rumor-mongering,
conduct prejudicial to the interest of the company, and loss of trust and confidence;6 that he
should submit a written explanation of the charges; and that he was at the same time being
placed under preventive suspension.7
On February 26, 2002, the petitioner’s counsel, replying to Ela’s letter, assailed the propriety of
the show-cause memorandum as well as the basis for placing the petitioner under preventive
suspension.
On March 14, 2002, the petitioner received the summons for him to attend an administrative
inquiry, instructing him to appear before PAGCOR’s Corporate Investigation Unit (CIU) on
March 15, 2002.8 At the petitioner’s request, however, the inquiry was conducted at his
residence on said date. His statement was taken in a question-and-answer format. He was also
furnished the memorandum of charges that recited the accusations against him and indicated the
acts and omissions constituting his alleged offenses. The memorandum of charges was based on
the statements of PAGCOR personnel who had personal knowledge of the accusations against
him. However, when his counsel requested to be furnished copies of the statements, PAGCOR
rejected the request on the ground that he had already been afforded the sufficient opportunity to
confront, hear, and answer the charges against him during the administrative inquiry. The
petitioner was then allowed to submit his answer on March 26, 2002.
Thereafter, the CIU tendered its investigation report to PAGCOR’s Adjudication Committee.9
The Adjudication Committee summoned the petitioner to appear before it on May 8, 2002 in
order to address questions regarding his case. His counsel moved for the re-scheduling of the
meeting because he would not be available on said date, but the Adjudication Committee denied
the request upon the reason that the presence of counsel was not necessary in the proceedings.
His counsel moved for the reconsideration of the denial of the request.10
The petitioner received the letter dated May 15, 2002 from Ela informing him of the resolution
of the PAGCOR Board of Directors in its May 14, 2002 meeting to the effect that he was being
dismissed from the service.11
After the petitioner’s motion for reconsideration vis-à-vis the resolution of the PAGCOR Board
of Directors dismissing him from the service was denied, he appealed his dismissal to the CSC.
In its resolution dated April 11, 2007, the CSC ruled that PAGCOR had violated the petitioner’s
right to due process, and accordingly set aside his dismissal from the service, viz:
In fine, the Commission finds that the right of Vivo to due process was violated when he was
ousted from his office without the corresponding Board Resolution that should have set out the
collegial decision of the PAGCOR Board of Directors.
WHEREFORE, foregoing premises considered, the appeal of Ray Peter O. Vivo is hereby
GRANTED. The letters dated May 15, 2002 and June 5, 2002 issued by Teresita S. Ela, Senior
Managing Head, Human Resource Department, Philippine Amusement and Gaming Corporation
(PAGCOR), are SET ASIDE.12
xxxx
The CSC remanded the case to PAGCOR with the instruction for PAGCOR to complete its
reinvestigation within three months from receipt of the resolution.
After the CSC denied its motion for reconsideration, PAGCOR elevated the case to the CA.
On February 27, 2009, the CA promulgated its decision reversing and setting aside the decision
of the CSC upon its finding that the petitioner had been accorded procedural due process. The
CA remanded the case to the CSC for the determination of the appeal of the petitioner on the
merits, specifically the issue of whether the dismissal had been for cause.13
Hence, this appeal.
Issue
The petitioner raises the following issues, namely:
1. The conclusion of the Court of Appeals that Petitioner’s right for (sic) due process was
not violated transgressed (sic) the fundamental rules in administrative due process.
2. The Court of Appeals decision in setting aside CSC Resolutions Nos. 070732, dated 01
April 2007, and 071485, dated 01 August 2007, is contrary to the Uniform Rules on
Administrative Cases in the Civil Service and settled jurisprudence.14
The petitioner would have the Court hold that PAGCOR’s failure to furnish him a copy of the
Board Resolutions authorizing his dismissal and denying his motion for reconsideration was a
fatal and irreparable defect in the administrative proceedings that ultimately resulted in the
illegality of his dismissal from the service. He further argues that he was denied due process by
PAGCOR’s refusal to re-schedule the Adjudication Committee meeting in order to enable his
counsel to attend the meeting with him, because the refusal constituted a violation of his right to
be represented by counsel.
Ruling
The petition for review lacks merit.
The observance of fairness in the conduct of any investigation is at the very heart of procedural
due process. The essence of due process is to be heard, and, as applied to administrative
proceedings, this means a fair and reasonable opportunity to explain one’s side, or an opportunity
to seek a reconsideration of the action or ruling complained of.15 Administrative due process
cannot be fully equated with due process in its strict judicial sense, for in the former a formal or
trial-type hearing is not always necessary,16 and technical rules of procedure are not strictly
applied. Ledesma v. Court of Appeals17 elaborates on the well-established meaning of due
process in administrative proceedings in this wise:
x x x Due process, as a constitutional precept, does not always and in all situations require a trial-
type proceeding. Due process is satisfied when a person is notified of the charge against him and
given an opportunity to explain or defend himself. In administrative proceedings, the filing of
charges and giving reasonable opportunity for the person so charged to answer the accusations
against him constitute the minimum requirements of due process. The essence of due process is
simply to be heard, or as applied to administrative proceedings, an opportunity to explain one’s
side, or an opportunity to seek a reconsideration of the action or ruling complained of.18
The petitioner actively participated in the entire course of the investigation and hearings
conducted by PAGCOR. He received the letter from Ela apprising him of his being
administratively charged for several offenses, and directing him to submit an explanation in
writing. He was later on properly summoned to appear before the CIU, which conducted its
proceedings in his own residence upon his request. During the administrative inquiry, the CIU
served him a copy of the memorandum of charges, which detailed the accusations against him
and specified the acts and omissions constituting his alleged offenses. He was also given the
opportunity to appear before the Adjudication Committee to answer clarificatory questions.
Lastly, he was informed through a memorandum of the decision of the Board of Directors
dismissing him from the service.
In contrast, the petitioner could not dispute the observance of his right to due process by
PAGCOR as set forth herein. He made no credible showing of the supposed violation of his right
to due process. He was heard through the written statement he submitted in response to the
memorandum of the charges against him. He actively participated in the administrative inquiry
conducted by the CIU at his own residence. He was afforded the opportunity to clarify his
position in the proceedings before the Adjudication Committee. He was also able to appeal the
adverse decision to dismiss him from the service to the CSC. There is also no question that
PAGCOR complied with the twin-notice requirement prior to the termination of his employment,
the first notice being made through Ela’s letter dated February 21, 2002 informing him on his
being administratively charged for the offenses mentioned, and the second being through the
letter dated May 15, 2002 advising him that PAGCOR’s Board of Directors had resolved to
dismiss him from the service. It is settled that there is no denial of procedural due process where
the opportunity to be heard either through oral arguments or through pleadings is accorded.19
The petitioner takes the CA to task for not considering: (1) PAGCOR’s failure to furnish him
copies of the Board Resolutions referred to by Ela in the memorandum served on him, and (2)
the refusal of PAGCOR to have him be represented by counsel.
The petitioner cannot be sustained.
As the CA found, and correctly so, the petitioner’s pleadings explicitly admitted that his
dismissal had been effected through board resolutions. That he was not furnished copies of the
board resolutions did not negate the existence of the resolutions, and did not invalidate the
contents of the board resolutions. It is beyond question that he was duly informed of the subject-
matter of the board resolutions. Consequently, the CSC’s conclusion that his dismissal had been
unauthorized was unfounded. In any case, even assuming for the sake of argument that there was
no board resolution approving his dismissal, the lapse did not render his dismissal illegal but
unauthorized. However, as the CA succinctly put it, an unauthorized act could be the subject of
ratification.20
As regards the supposed denial of the petitioner’s right to counsel, it is underscored that
PAGCOR denied his request to re-schedule the conference before the Adjudication Committee
because his counsel would not be available on the day fixed for that purpose. In its letter denying
the request, the Adjudication Committee asserted that the presence of counsel was not
indispensable in the conduct of its proceedings. We find nothing objectionable in the denial of
the request. In an administrative proceeding like that conducted against the petitioner, a
respondent has the option of engaging the services of counsel. As such, the right to counsel is not
imperative because administrative investigations are themselves inquiries conducted only to
determine whether there are facts that merit disciplinary measures against erring public officers
and employees, with the purpose of maintaining the dignity of government service.21
It is noteworthy, however, that the petitioner was actually assisted by his counsel from the outset
of the administrative case against him. That counsel, Atty. Cesar B. Jimenea Jr. of the Jimenea
and Associates, ensured that the petitioner’s every concern reached PAGCOR, and that he was
clarified of any matter affecting his rights all throughout the investigation and hearings. As the
records indicate, his counsel sent to Ela a letter calling attention to supposedly palpable
violations of his client’s right to due process, and objecting to Ela’s right to place his client under
preventive suspension. The same counsel filed in behalf of the petitioner the letter-requests to be
furnished certain documents and records of the investigation,22 his answer to the memorandum
of charges,23 the letter-request for the re-setting of the conference before the Adjudication
Committee,24 the reconsideration of the letter denying the request,25 and the motion to
reconsider the decision of the Board of Directors to dismiss him from the service.26
In any event, any procedural defect in the proceedings taken against the petitioner was cured by
his filing of the motion for reconsideration and by his appealing the adverse result to the
CSC.1âwphi1 The Court held in Gonzales v. Civil Service Commission27 that any defect in the
observance of due process is cured by the filing of a motion for reconsideration, and that denial
of due process cannot be successfully invoked by a party who was afforded the opportunity to be
heard. In Autencio v. Mañara,28 the Court observed that defects in procedural due process may
be cured when the party has been afforded the opportunity to appeal or to seek reconsideration of
the action or ruling complained of.
The petitioner was not denied due process of law, for he was afforded the fair and reasonable
opportunity to explain his side. That, to us, was sufficient to meet the requirements of due
process.29 In Casimiro v. Tandog,30 the Court pronounced:
The essence of procedural due process is embodied in the basic requirement of notice and a real
opportunity to be heard. In administrative proceedings, such as in the case at bar, procedural due
process simply means the opportunity to explain one’s side or the opportunity to seek a
reconsideration of the action or ruling complained of. "To be heard" does not mean only verbal
arguments in court; one may be heard also thru pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded, there is no denial of procedural due process.
In administrative proceedings, procedural due process has been recognized to include the
following: (1) the right to actual or constructive notice of the institution of proceedings which
may affect a respondent’s legal rights; (2) a real opportunity to be heard personally or with the
assistance of counsel, to present witnesses and evidence in one’s favor, and to defend one’s
rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person
charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a
finding by said tribunal which is supported by substantial evidence submitted for consideration
during the hearing or contained in the records or made known to the parties affected.
In fine, the CA committed no reversible error in holding that P AGCOR had properly observed
the requirements of due process in its administrative proceedings against the petitioner.
WHEREFORE, the Court DENIES the petition for review on certiorari AFFIRMS the decision
promulgated on February 27, 2009 by the Court of Appeals; REQUIRES the Civil Service
Commission to determine the petitioner's appeal on the merits, particularly the issue of whether
the dismissal was for cause; and ORDERS the petitioner to pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice





Associate Justice
CERTIFICATION

Chief Justice
Footnotes
1 Rollo pp. 32-42; penned by Associate Justice Edgardo P. Cruz retired), and concurred
in by Associate Justice Vicente S.E. Veloso, and Associate Justice Ricardo R. Rosario.
2 Id. at 194-203.
3 Id. at 205-210.
4 Id. at 43.
5 Id. at 4.
6 Id. at 32.
7 Id.
8 Id. at 33.
9 Id. at 33-34.
10 Id. at 34.
11 Id. at 11.
12 Id. at 202-203.
13 Id. at 41.
14 Id. at 12-13.
15 Office of the Ombudsman v. Reyes, G.R. No. 170512, October 5, 2011, 658 SCRA
626, 640; citing Ledesma v. Court of Appeals, G.R. No. 166780, December 27, 2007,
541 SCRA 444, 452.
16 Imperial, Jr. v. Government Service Insurance System, G.R. No. 191224, October 4,
2011, 658 SCRA 497, 505, cited in Pat-og, Sr. v. CSC, G.R. No. 198755, June 5, 2013.
17 G.R. No. 166780, December 27, 2007, 541 SCRA 444.
18 Id. at 451-452.
19 Liguid v. Camano, Jr., A.M. No. RTJ-99-1509, August 8, 2002, 387 SCRA 1, 10.
20 Rollo, p. 40.
21 Lumiqued v. Exevea, G.R. No. 117565, November 18, 1997, 282 SCRA 125, 141.
22 Rollo, p. 89.
23 Id. at 90-103.
24 Id. at 105.
25 Id. at 109-112.
26 Id. at 126-139.
27 G.R. No. 156253, June 15, 2006, 490 SCRA 741, 746.
28 G.R. No. 152752, January 19, 2005, 449 SCRA 46, 55-56.
29 Id. at 55.
30 G.R. No. 146137, June 8, 2005, 459 SCRA 624, 631, cited in Department of Agrarian
Reform v. Samson, G.R. No. 161910, June 17, 2008, 554 SCRA 500, 509.
SUPREME COURT
Manila
EN BANC
IPI No. 12-203-CA-J December 10, 2013

[formerly A.M. No. 12-8-06-CA]
RE: LETTERS OF LUCENA B. RALLOS, FOR ALLEGED

ACTS/INCIDENTS/OCCURENCES RELATIVE TO THE RESOLUTION(S) ISSUED IN
CA-G.R. SP No. 06676 BY COUIRT OF APPEALS EXECUTIVE JUSTICE PAMPIO
ABARINTOS and ASSOCIATE JUSTICES RAMON PAUL HERNANDO and
VICTORIA ISABEL PAREDES.
x---------------x
A.M. No. 12-9-08-CA
RE: COMPLAINT FILED BY LUCENA B. RALLOS AGAINST JUSTICE GABRIEL T.

INGLES, PAMELA ANN MAXIMO, and CARMELITA S. MANAHAN.
DECISION
BERSAMIN, J.:
Judicial officers cannot be subjected to administrative disciplinary actions for their

performance of duty in good faith.
Antecedents
In Civil Case No. CEB-20388 of the Regional Trial Court in Cebu City (RTC), the Heirs of
Vicente Rallos, one of whom is complainant Lucena B. Rallos (Rallos), and other parties
collectively referred to as Vicente Rallos, et al. sought just compensation from the city
government of Cebu City (Cebu City) for two parcels of land pertaining to the estate that
Cebu City had been maintaining as public roads without their consent. On January 14,
2000, the RTC (Branch 9) rendered its decision holding Cebu City liable to pay just
compensation to the Heirs of Vicente Rallos, et al.; and directing the creation of a board of
commissioners that would determine the amount of just compensation.1 Cebu City sought
the reconsideration of the decision, but its motion was denied.2
Upon submission by the board of commissioners of its report on the just compensation, the
RTC rendered another decision on July 24, 2001 ordering Cebu City to compensate the
Heirs of Vicente Rallos, et al. in the amount of P34,905,000.00 for the parcels of land plus
interest of 12% per annum computed from the date of the decision until fully paid;
P50,000.00 as attorney’s fees; and P50,000.00 as litigation expenses.3
The RTC granted the motion of the Heirs of Vicente Rallos, et al. for the execution pending
appeal of the July 24, 2001 decision. In implementing the execution pending appeal, the
RTC issued three separate orders, all dated December 21, 2001. Both parties sought the
reconsideration of the orders dated December 21, 2001.4 On March 21, 2002, the RTC
issued its consolidated order resolving the motions for reconsideration of the parties.5
Both parties appealed to the Court of Appeals (CA), Visayas Station. The Heirs of Vicente
Rallos, et al. assailed the July 24, 2001 decision and the March 21, 2002 consolidated order
of the RTC. On its part, Cebu City challenged the decisions of January 14, 2000, July 24,
2001, and March 21, 2002. On May 29, 2007, the CA promulgated its decision dismissing
the appeal of Cebu City for its failure to file a record on appeal.6 Cebu City moved for are
consideration, but the CA denied its motion in there solution promulgated on August 30,
2007. Thence, Cebu City filed its petition for review in this Court (G.R. No. 179662), but
the Court denied the petition for review.7
The Heirs of Vicente Rallos, et al. thereafter moved in the RTC for the execution of the July
24, 2001 decision and the March 21, 2002 consolidated order. The RTC granted the motion.
Subsequently, however, upon finding that the RTC had erred in executing the decision and
the consolidated order, the Heirs of Vicente Rallos, et al. lodged an appeal with the CA,
Visayas Station, to compel the RTC to comply strictly with the tenor of the decision and the
consolidated order (CA-G.R. CEBSP.No. 04418). On June 11, 2010, the CA decided CA-
G.R. CEB SP. No. 04418 by requiring the RTC to execute the RTC’s July 24, 2001 decision
and its March 21, 2002 consolidated order strictly in accordance with their tenor.8 After its
motion for reconsideration was denied, Cebu City appealed by petition for review (G.R.
No. 194111). However, the Court denied Cebu City’s appeal on December 6, 2010.9
On motion for execution by the Heirs of Vicente Rallos, et al., the RTC directed on
September 23, 2011 the issuance of a writ of execution in accordance with the ruling in CA-
G.R. CEBSP. No. 04418.10 In reaction, Cebu City presented an omnibus motion to quash
the writ of execution and to lift the notice of garnishment, but the RTC denied the omnibus
motion through its orders of October 26, 2011,11 January 26, 2012,12 and February 27,
2012.
On March 26, 2012, Cebu City brought in the CA, Visayas Station, a petition for the
annulment of the RTC’s decisions of January 14, 2000 and July 24, 2001, and the
consolidated order dated March 21, 2002(CA-G.R. CEBSP. No. 06676), alleging that
Vicente Rallos and his heirs had been obliged under a compromise agreement called
convenio, as approved on October 18, 1940 by the Court of First Instance of the Province of
Cebu (CFI) in Civil Case No. 616 and Civil Case No. 626, to donate, cede, and transfer the
parcels of landin question to Cebu City; that Cebu City should not be made to pay just
compensation for the parcels of land in question despite the final and executory decision in
Civil Case No. CEB-20388 because of the ruling by the CFI in Civil Case No. 616 and Civil
Case No. 626 to the effect that the parcels of land in question had been donated to Cebu
City; and that the concealment of the existence of the convenio by the Heirs of Vicente
Rallos, including Rallos, during the proceedings in Civil Case No. CEB-20388 constituted
extrinsic fraud, which was "unmasked" only when Cebu City discovered the existence of
the convenio in 2011.13 Accordingly, Cebu City sought the nullification of the RTC
decisions and consolidated order; and the issuance of a temporary restraining
order(TRO)and/or writ of preliminary injunction "to prevent the hasty, if not unlawful
release of government funds."14
CA-G.R. CEBSP.No. 06676 was raffled to the 18th Division of the CA, Visayas Station,
whose members then were respondents Justice Pampio A. Abarintos, as the Chairman,
Justice Ramon Paul L. Hernando, as the Senior Member, and Justice Victoria Isabel A.
Paredes, as the Junior Member.15 On March 28, 2012, the 18th Division, through Justice
Hernando, promulgated a resolution directing Cebu City to rectify certain defects in its
petition, to wit:
Perusal of the above-captioned Petition for Annulment of Final Decision/s and Order/s,
with prayer for the issuance of a Temporary Restraining Order (TRO) and/or Writ of
Preliminary Injunction (WPI), reveals the following infirmities:
1. Copy of Sangguniang Panlungsod Resolution No. 12-1330-2011 that is attached to the

Petition, while ostensibly a certified true copy, is in fact just a photocopy.
2. Atty. Joseph L. Bernaldez, the Notary Public in both the Verification/Certification of

Non-Forum Shopping and Affidavit of Good Faith, did not indicate therein his notarial
commission number and the province/city where he is commissioned, in violation of Sec. 2,
Rule VIII of the 2004 Rules on Notarial Practice.
3. Atty. Marie Velle P. Abella, the Notary Public in the Affidavit of Service did not reflect
therein the province/city where she is commissioned as a notary public, in violation of Sec.
2, Rule VIII of the 2004 Rules on Notarial Practice.
Petitioner is DIRECTED to RECTIFY the foregoing defects within ten (10) days from
notice. Meanwhile, the Court shall hold in abeyance any action on the Petition and TRO
application pending compliance with the order of rectification of defects.16
Cebu City complied with the resolution on April 12, 2012.17
Through the Manifestation with Urgent Motion for the Issuance of a Temporary
Restraining Order filed on April 4, 2012, Cebu City informed the CA of its receipt of the
Notice to Parties of Sale on Execution that set the sale on April 10, 2012 and April 17, 2012;
and alleged that the sale on execution could render the proceedings in CA-G.R. CEB SP.
No. 06676 moot and academic.18
Acting on the aforesaid urgent motion of Cebu City, the CA, through Justice Hernando,
issued a TRO on April 13, 2012, viz:
Proceeding now to the supplication for the issuance of a Temporary Restraining Order
(TRO) by the petitioner, the Court perceives more than adequate grounds for its grant.
Firstly, is there urgency involved on the matter, as an execution sale has been scheduled not
just on April 10, 2012 but also on April 17, 2012. Secondly, if such sale pushes through, it
may well render moot the proceedings before this Court. Thirdly, there appears, at least
preliminarily, a right on the part of petitioner that needs protection, that is, its right not to
be deprived of its property if the fraud it alleges –that of concealment of the convenio–is
unmasked to be such. Thus, grave or irreparable injury may therefore be suffered, in Our
estimation at this stage of the proceedings, by the petitioner should a TRO be not
forthcoming.
The Court now therefore resolves to GRANT the petitioner’s application for a TRO,
effective for sixty (60) days from notice by respondents. By virtue of the TRO, the
respondents or anyone acting in their behalf, are enjoined from executing the Decision
dated January 14, 2000 and July 24, 2001, the Order dated February 9, 2001, Consolidated
Order dated December 21, 2001 and Order dated February 27, 2012 of respondent court,
the Regional Trial Court, Branch 9 of Cebu City and from causing the release of any funds
of the petitioner in satisfaction thereof.
Petitioner is DIRECTED to post the corresponding TRO Bond, herein fixed at Php 1
Million, within ten (10) days from notice. The TRO issued by the Court shall be effective
immediately upon receipt by respondents. However, the failure of the petitioner to comply
with the posting of the bond within the ten-day period shall result in the lifting of the
restraining order.19
Cebu City posted the required TRO bond of P1,000,000.00.20
On April 23, 2012, Justice Hernando inhibited from further participation in CA-G.R.
CEBSP. No. 06676.21 During the raffle of April 24, 2012, CA-G.R. CEB SP.No. 06676 was
assigned to Justice Paredes, with Justice Gabriel T. Ingles being designated as the new
third member.22
On April 26, 2012, the CA set the hearing on Cebu City’s application of the writ of
preliminary injunction on May 23, 2012.23
On May 7, 2012, the Heirs of Vicente Rallos moved to set aside the April 13, 2012
resolution; to lift the TRO; and to dismiss the petition for annulment.24 On May 23, 2012,
the CA held the hearing on Cebu City’s application for the writ of preliminary injunction.
The counsels for both parties attended the hearing, where the Heirs of Vicente Rallos
moved to be allowed to submit their formal offer of exhibits in support of their opposition
to the issuance of the writ of preliminary injunction. The CA granted their motion, and
further directed the parties to submit their respective memoranda.25
On June 5, 2012, CA-G.R. CEB SP.No. 06676 was assigned to Justice Abarintos in view of
the intervening transfer of Justice Paredes to Manila.26 However, two days later, Justice
Abarintos inhibited himself from further participation in CA-G.R. CEB SP.No. 06676.27
By the raffle conducted on June 7, 2012, CA-G.R. CEB SP.No. 06676 was next assigned to
Justice Edgardo L. Delos Santos, while Justice Carmelita S. Manahan was designated as
the new third member of the Division.28 On June 14, 2012, however, Justice Delos Santos
also inhibited himself from participation in the case.29 Thus, CA-G.R. CEB SP.No. 06676
was assigned by raffle to Justice Ingles, whowas designated as the Chairman of the 18th
Divisionfor purposes of the case. Justice Pamela Ann Abella Maxino and Justice Manahan
were assigned, respectively, as the Senior and the Junior Members of the Division.30
On June 26, 2012, the CA granted CebuCity’s application for the writ of preliminary
injunction, to wit:
xxxx
A writ of preliminary injunction issues to prevent threatened or continuous irremediable

injury to some of the parties before their claims can be thoroughly studied and
adjudicated. Its sole office is to preserve the status quo until the merits of the case can be
heard fully. To be entitled to a writ of injunction, a party must establish the following
requisites: (a) the right of the complainant is clear and unmistakable; (b) the invasion of
the right sought to be protected is material and substantial; and (c) there is an urgent and
paramount necessity for the writ to prevent serious damage.
We find the foregoing requisites satisfied.
First, the initial evidence satisfactorily demonstrates petitioner’s clear and unmistakable
right as a beneficiary or prospective donee in a Convenio executed on September 22, 1940.
Petitioner submitted as exhibit in its application for WPI, the Decision of the Court of First
Instance of the Province of Cebu, 8thJudicial District dated October 18, 1940. The Decision
reproduced verbatim the judicially-approved Convenio, which provided for a stipulation
pour autrui in petitioner’s favor, whereby Lots 485-D and 485-E, the subjects of Civil Case
No. CEB-20388, were supposed to be donated and transferred to it by respondent’s
predecessor, Father Vicente Rallos. The Convenio also provided that should petitioner not
accept the donation, the road lots would still be for public use.
Respondents question the authenticity of the Decision embodying the Convenio since the
same is purportedly unsigned. This challenge shall be fully contended with when we
evaluate the merits of the petition, but at this juncture, suffice it to say that our inclination
to regard the Decision as authentic, for purposes of resolving the propriety of the herein
ancillary remedy, is anchored on these reasons: (1) the 1940 decision is more than thirty
(30) years old; and (2) it was produced from a custody in which it would be naturally found
if genuine. Respondents’ counsel, Atty. Glenn Cañete, admitted during the hearing that he
personally went to RTC Branch 9, and found out for himself that indeed, there is a copy of
the said Decision in the records of the court. Moreover, respondent Maurillo Rallos,
likewise, attested in his Affidavit that he personally went to the Offcie of the RTC Clerk of
Court and upon personally examining its records, saw for himself that the decision was
actually in the custody of the clerk.
Second, the invasion of petitioner’s right sought to be protected is material and substantial.
It appears, from the sampling of evidence, that respondents deliberately suppressed
Convenio when they lodged Civil Case No. CEB-20388, seeking for forfeiture of
improvements and payment of fair market value with damages, litigation expenses and
attorneys fees, against petitioner. The non-disclosure of the Convenio resulted in the
violation of petitioner’s right to for it is now made to pay, with the use of public funds, just
compensation for properties that were supposed to be donated and transferred to it
without cost. In fact, petitioner already paid Fifty Six Million One Hundred Ninety Six
thousand, three hundred sixty nine and 42/100 Pesos (P56,196,369.42) in 2001 and 2009.
Third, there is urgent and paramount necessity for the writ to prevent serious damage. In
propounding its application for WPI, petitioner alleged that public respondent issued an
Order (Order) dated February 27, 2012, directing : 1) the depositary banks of the City of
Cebu to release to the Sheriff, certifications as to the correct account numbers under
petitioner’s name in order to cater to the final judgment in Civil Case No. CEB-20388; (2)
the plaintiffs to demand the Sangguniang Panlungsod to enact the appropriation
ordinance; and (3) the depositary banks to release the amount for the satisfaction of the
money judgment upon presentment of the appropriation ordinance. In a Manifestation
with Urgent Motion it subsequently filed, petitioner informed this Court that it had
received the following from the sheriff: (1) Notice to Parties of Sale on Execution; (b)(sic)
Notice of Execution Sale at Public Auction; and (3) Amended Writ of Execution.
To date, the foregoing issuances have not been recalled, such that, when the limited life of
the previously granted TRO expires, the sheriff can proceed with garnishing petitioner’s
bank deposits and selling its patrimonial property described in the Notice of Execution Sale
of Public Auction. The involvement of public funds and property justifies the urgency and
necessity of the issuance of a WPI to prevent serious damage to petitioner. It is best to
preserve the status quo pending the final determination of this case, otherwise, whatever
Decision hereon will be rendered ineffectual and nugatory.
WHEREFORE, premises considered, let a Writ of Preliminary Injunction issue enjoining

respondents, their successors, agents, representatives, assigns, and any and all persons
acting under their supervision, direction and on their behalf, from executing the Decisions
dated January 14, 2000 and July 24, 2001, the Order dated Febraury 9, 2001, Consolidated
Order dated December 21, 2001 and Order dated February 27, 2012 of the respondent
court, the Regional Trial Court, Branch 9, Cebu City, and from causing the release of any
funds, or the auction of property/ies of petitioner in satisfaction thereof, until further
orders from the Court.31
The Heirs of Vicente Rallos moved for there consideration of the grant of the application
for the writ of preliminary injunction.32
On August 10, 2012, the Court received the letter-complaint from Rallos requesting an
investigation of the allegedly unlawful and unethical conduct of Justice Abarintos, Justice
Hernando and Justice Paredes as Members of the 18thDivision in dealing with CA-G.R.
CEB SP.No. 06676.33 On August 30, 2012, the Court received another letter from Rallos
requesting permission to amend her letter-complaint and to admit her attached amended
letter-complaint.34 The Court docketed the amended letter-complaint as A.M. No. 12-8-06-
CA.35
On September 12, 2012, the Court received an affidavit-complaint from Rallos, whereby
she also charged Justice Ingles, Justice Maxino and Justice Manahan with administrative
and criminal offenses. The Court docketed the affidavit-complaint as A.M. No. 12-9-08-
CA.36
On September 18, 2012, the Court promulgated a resolution in A.M. No. 12-9-08-CA
requiring Justice Ingles, Justice Maxino and Justice Manahan to comment on the affidavit-
complaint of Rallos, and consolidating A.M. No. 12-9-08-CA with A.M. No. 12-8-06-CA.37
On December 13, 2012, the Court received the joint comment/answer of Justice Ingles,
Justice Maxino and Justice Manahan, whereby they prayed for the dismissal of the charges
in A.M. No. 12-9-08-CA for lack of merit.38
On January 8, 2013, the Court re-docketed A.M. No. 12-8-06-CA as OCA I.P.I. No. 12-203-
CA-J, and ordered Justice Abarintos, Justice Hernando and Justice Paredes to comment
on the letter-complaint.39 They separately complied, but all of them prayed for the
dismissal of the letter-complaint for lack of merit.40
Chargesin IPI No. 12-203-CA-J

(formerly A.M. No. 12-8-06-CA)
In her amended letter, Rallos averred that the issuance of the March 28, 2012 resolution in
CA-G.R. CEB SP. No. 06676 directing the rectification of the "fatal" defects of the petition
for the issuance of the TRO had been erroneous; that the fatally defective petition should
instead be out rightly dismissed inasmuch as the decisions and the consolidated order
thereby sought to be annulled had been already affirmed by the Court in G.R. No. 179662
and G.R. No. 194111; that Cebu City should carry the responsibility for making its petition
compliant with the Rules of Court; that the respondent Justices had thus acted as legal
consultants of Cebu City; and that it was a matter of public knowledge that petitions filed
in the CA were being routinely dismissed even for minor deficiencies.41
Rallos contended that it was improper for Justice Abarintos to have participated in
CA.G.R. CEB SP. No. 06676 despite having previously inhibited himself in CA-G.R.
CEBSP.No.06364,because Cebu City was the petitioner and the Heirs of Vicente Rallos
were the respondents in both cases; that Justice Abarintos did not have "the cold
impartiality of a neutral judge" to determine CA-G.R. CEB SP. No. 06676; that the
"appearance of impropriety" became more apparent when Justice Abarintos and several
other Justices inhibited themselves from participation in CA-G.R. CEBSP.No. 06676; and
that Justice Hernando was biased because he inhibited himself in CA-G.R. CEB SP. No.
06676 immediately after rendering the March 28, 2012 and April 13, 2012 resolutions.42
Rallos argued that litigants in the CA had the right to be informed of the inhibition of the
Justices, and to object if the inhibition was invalid; that a Justice could not simply inhibit
from a case because doing so would raise doubts on the integrity of the judicial process;
and that the inhibitions of the respondent Justices raised the suspicion of manipulation
wherein the Justices who were unwilling to issue the writ of preliminary injunction sought
by Cebu City were forced to inhibit themselves in order that other Justices sympathetic
towards Cebu City couldbe put in their places.
Rallos prayed that the respondent Justices be held administratively and criminally liable,
and in the meantime be temporarily suspended to avoid influencing the investigation of the
letter-complaint; and that the CA be directed to furnish her with the list of inhibitions and
replacements of the respondent Justices in CA-G.R. SP No. 06676,and the grounds for the
inhibitions and replacements.43
Allegations in A.M. No. 12-9-08-CA
Rallos asserted that respondent Justice Ingles, Justice Maxino and Justice Manahan had
"knowingly disobeyed" the resolutions promulgated onDecember 5, 2007 in G.R. No.
179662 and on December 6, 2010 in G.R. No. 194111by their issuance of the June 26, 2012
resolution granting Cebu City’s application for the writ of preliminary injunction; that the
issuance constituted serious misconduct and a violation of Article 206 of the Revised Penal
Code, Republic Act No. 6713 and Republic Act No. 3019; that the issuance of the writ of
preliminary injunction was on the basis of the convenio, a document that had not been
formally offered in evidence by Cebu City during the hearing for the issuance of writ of
preliminary injunction; that even had the convenio been formally offered in evidence, it
should still not have been considered because:(1) it was only a machine copy and was even
unsigned; (2) Cebu City was not a party to the convenio;
and (3) the supposed donation to Cebu City was void because it had not been accepted in a
public document by Cebu City during the lifetime of the purported donor.44
Rallos further asserted that the June 26, 2012 resolution reflected the negligence and bias
of the respondent Justices because:(1) it enjoined the execution of orders dated February 9,
2001 and December 21, 2001 allegedly issued in Civil Case No. CEB-20388 that did not
existin fact; (2) it stopped the execution of the order dated February 27, 2012 that was still
the subject of a motion for reconsideration; (3) it unduly interfered with the Court’s
rulings in G.R. No. 194111 and G.R. No. 179662; and (4) it unduly interfered with the final
and executory orders issued in Civil Case No. CEB-20388.45 She maintained that the CA
was barred from entertaining Cebu City’s petition and application for the issuance of the
writ of preliminary injunction because Cebu City had previously appealed the decisions
rendered on January 14, 2000 and July 24, 2001 as well as the consolidated order of March
21, 2002 (CA-G.R. CV No. 76656) but had lost the appeal; and that respondent Justices
violated her right to have the Court’s resolutions in G.R. No. 179662 and G.R. No. 194111
executed without undue delay, thereby denying toher the fruits of her court victory.
As relief, Rallos prayed that the respondent Justices be held guilty of serious misconduct,
and meted the penalty of removal from office and perpetual disqualification from holding
office or employment in the Government; that they be further criminally prosecuted for
violating Republic Act No. 6713, Republic Act No. 3019, and Article 206 of the Revised
Penal Code; that they be disbarred for violating the Code of Judicial Conduct and the Code
of Professional Responsibility; and that they be transferred to other CA stations and be
prohibited from participating in cases where she was a party.46
Ruling
We dismiss both administrative complaints for their lackofbasis.
1.
Administrative complaints are not proper remedies

to assail alleged erroneous resolutions of respondent Justices
Considering that the assailed conduct under both complaints referred to the performance
of their judicial functions by the respondent Justices, we feel compelled to dismiss the
complaints for being improper remedies. We have consistently held that an administrative
or disciplinary complaint is not the proper remedy to assail the judicial acts of magistrates
of the law, particularly those related to their adjudicative functions. Indeed, any errors
should be corrected through appropriate judicial remedies, like appeal in due course or, in
the proper cases, the extraordinary writs of certiorari and prohibition if the errors were
jurisdictional. Having the administrative or disciplinary complaint be an alternative to
available appropriate judicial remedies would be entirely unprocedural.47 In Pitney v.
Abrogar,48 the Court has forthrightly expressed the view that extending the immunity
from disciplinary action is a matter of policy, for "[t]o hold otherwise would be to render
judicial office untenable, for no one called upon to try the facts or interpret the law in the
process of administering justice can be infallible in his judgment."
In addition, the Court reminds that the disregard of the policy by Rallos would result in the
premature filing of the administrative complaints–a form of abuse of court processes.49
In IPI No. 12-203-CA-J, Rallos clearly wanted to challenge the resolutions promulgated on
March 28, 2012 and April 13, 2012. Although she should have filed motions for
reconsideration vis-à-vis such resolutions in due course, she filed a motion for
reconsideration only with respect to the resolution of April 13, 2012. Her resorting to the
filing of the letter-complaint instead of the motion for reconsideration vis-à-vis the March
28, 2012 resolution was improper because she could not substitute the administrative to the
proper judicial recourse. Anent the April 13, 2012 resolution, she should have waited for
the action of the CA on her motion for reconsideration, and should the motion be
eventually denied, her proper remedy was to appeal.
In A.M. No. 12-9-08-CA, although Rallos had moved for the reconsideration of the June 26,
2012 resolution, she did not anymore wait for the resolution of the motion for
reconsideration. Instead, she filed the complaint-affidavit. That, too, was impermissible,
because her appropriate recourse was to await the resolution of the motion for
reconsideration and then to appeal should the CA deny the motion. It is to be mentioned,
too, that the CA had not yet resolved Cebu City’s main suit for the annulment of judgment
on the merits; hence, it was premature and unprocedural for her to insist that the
respondent Justices could have already ruled on the grounds for annulment. That
resolution should be awaited because the issue on the validity and effectiveness of the
convenio would precisely still require the CA’s appreciation of the convenio as evidence.
Nor were the principle of immutability of judgment and the applicability of any law or
jurisprudence to bar Cebu City’s action for annulment of judgment already in effect,
considering that the CA still had to discharge its adjudicatory function respecting the
matter of the validity and effectiveness of the convenio.
2.
Truth of the allegations of bias, negligence or
improper motives against respondent Justices
cannot be presumed but must be substantiated
In their comment/answer regarding the issuance of the March 28, 2012 resolution, the
respondent Justices declared that they had resolved not to outrightly dismiss the petition of
Cebu City despite its several defects because:(1) the defects had been minor or non-
essential; (2) the petition had alleged the discovery of the convenio that would supposedly
show that Cebu City should not be obliged to expend the huge amount of public funds to
compensate the Heirs of Vicente Rallos; (3) the petition must be decided on the merits
rather than on technicality because the release of a huge amount of public funds would be
involved; (4) the rules of procedure should not be utilized as tools to defeat justice; and (5)
even with the foregoing being weighty enough, they had still imposed the condition that any
action on the petition and the application for the TRO application would be held in
abeyance pending compliance with the order for the rectification of the defects.
As to the April 13, 2012 resolution, the respondent Justices stated:
3. The CA Resolution granting the TRO was issued based on the appellate court’s fair and
objective estimation that indeed, there was a compelling and urgent ground for its grant.
The Sheriff of the Regional Trial Court was in the act of implementing the lower court’s
writ of execution on the properties of the applicant and there was, at that point, a necessity
to stop the implementation, particularly since Cebu City had shown at least at that stage of
the proceedings, that the Rallos heirs had conveniently withheld from it the existence of a
Deed of Donation (Convenio) whereby the Rallos family had previously donated the
property that was subsequently expropriated by Cebu City.
4. In short, the impression of the appellate court at the time is why should Cebu City be
made to pay just compensation by the Rallos heirs for the expropriation of their property
which had been donated by the Rallos family to Cebu City in the first place? This
circumstance, in the appellate court’s fair and objective view, justified the grant of the
injunctive relief. Otherwise, the Rallos heirs, which includes the complainant, would
unduly enrich themselves at the expense of Cebu City and essentially swindle it of its assets
(that were about to be executed upon by the RTC Sheriff) when they acceded to the
expropriation of their property that should have been delivered by them to the city as a
piece of donated property.x x x.50
xxxx
Furthermore, the grant or denial of a temporary restraining order is discretionary on the

part of the court. The matter is judicial in nature, and as such, the party’s remedy if
prejudiced by the orders of a judge/justice given in the course of a trial, is the proper
reviewing court, and not with the OCA by means of an administrative complaint.51 With
regard to the June 26, 2012 resolution, the respondent Justices elucidated in their
comment/answer:
Indeed, the judgment sought to be executed is already final, and the general rule is that, as
there is nothing left to be done the final judgment has to be executed or enforced. This rule,
however, is not absolute. It admits of exceptions, to wit:
xxxx
In the instant case, the stay of execution of the judgment paying just compensation to
petitioner for the properties in litigation is warranted by the fact that there is still a
pending case regarding the ownership of the said properties, docketed as CA-G.R. SP No.
06364 entitled City of Cebu vs. Lucena B. Rallos, et. al. In that case, the City of Cebu seeks
to nullify the 13 October 1998 Order in Spec. Proc. No. 107-R entitled "Testate Estate of
Vicente Rallos, deceased, Vicente Gullas, Executor", with prayer to direct the administratix
of the testate estate of Vicente Rallos to execute a deed of donation thereby donating the
disputed lots in favour of the City of Cebu, pursuant to a "convenio".x x x
It bears stressing that the cases before the respondent justices involve public funds, more
specifically, city funds to be used in the delivery of basic services to constituents of the City
of Cebu. As defined "public funds are those moneys belonging to the State or to any
political subdivision of the State; more specifically, taxes, customs duties and moneys raised
by operation of law for the support of the government or for the discharge of its
obligations." For this reason alone, there is the need to protect government funds–for
which the City of Cebu is accountable, and this should not be jeopardized through the
supposed violation by the city government of petitioner’s right to enjoy the fruits of the
final judgment in her favour when government protection can be done and is being done
without adverse effects to petitioner’s rights should the case be eventually resolved in her
favour.
Indeed, to go ahead with the execution when there are matters involving the ownership of
the subject properties that need to be threshed out may prove to be detrimental to the
interest of the government and public, as well. That is precisely why the courts are directed
to proceed with extreme prudence and caution in satisfying judgements involving public
funds. "In Administrative Circular No. 10-2000 dated 25 October 2000, all judges of lower
courts were advised to exercise utmost caution, prudence and judiciousness in the issuance
of writs of execution to satisfy money judgments against government agencies and local
government units. Judges, thus, cannot indiscriminately issue writs of execution against the
government to enforce money judgments."
xxxx
Therefore, pending determination as to who has legal right to the subject properties, there
is a patent, imperative need to be provisionally enjoin execution to prevent release of public
funds or sale of any of the city’s property for payment of just compensation, or, to restrain
acts that may render moot and academic the judgment or order that may be rendered in
this case.52
A reading of them easily shows that the questioned resolutions exhaustively explained their
factual and legal bases. Apparently, the respondent Justices concerned promulgated the
questioned resolutions with prudence and fairness, and upon due consideration of the
surrounding circumstances. Contrary to the posture of Rallos, therefore, the respondent
Justices’ issuance of the questioned resolutions was not tainted by bias, negligence or any
improper motives.
Moreover, the respondent Justices conducted a hearing before issuing the writ of
preliminary injunction in favor of Cebu City. In that hearing, the counsels of the parties
attended, and were granted ample opportunity to argue for their respective sides.
Anent the voluntary inhibitions of the respondent Justices concerned, it serves well to note
that Section 1, Rule 137 of the Rules of Court set standing guidelines for that purpose. The
guidelines have required just and valid causes to justify voluntary inhibitions. Thereby, the
discretion to decide whether to voluntarily inhibit or not could not be unfettered, for, as
fittingly said in Abrajano v. Heirs of Augusto F. Salas, Jr.:53
x x x. The rule on inhibition and disqualification of judges is laid down in Sec. 1, Rule 137
of the Rules of Court:
Sec. 1.Disqualification of judges. — No judge or judicial officer shall sit in any case in which
he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in
which he is related to either party within the sixth degree of consanguinity or affinity, or to
counsel within the fourth degree, computed according to the rules of the civil law, or in
which he has been executor, administrator, guardian, trustee or counsel, or in which he has
presided in ny inferior court when his rulingor decision is the subject of review, without the
written consent of all parties in interest, signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a
case, for just or valid reasons other than those mentioned above.
Thus stated, the rule contemplates two kinds of inhibition: compulsory disqualification
assumes that a judge cannot actively or impartially sit on a case for the reasons stated in
the first paragraph, while voluntary inhibition under the second paragraph leaves to the
judge’s discretion whether he should desist from sitting in a case for other just and valid
reasons with only his conscience to guide him.
The issue of voluntary inhibition is primarily a matter of conscience and sound discretion
on the part of the judge. This discretion is an acknowledgement of the fact that judges are
in a better position to determine the issue of inhibition, as they are the ones who directly
deal with the parties-litigants in their courtrooms. The decision on whether he should
inhibit himself, however, must be based on his rational and logical assessment of the
circumstances prevailing in the case brought before him.
The rule does not give the judge the unfettered discretion to decide whether he should
desist from hearing a case. The inhibition must be for just and valid causes. The mere
imputation of bias, partiality and prejudgment will not suffice in the absence of clear and
convincing evidence to overcome the presumption that the judge will undertake his noble
role to dispense justice according to law and evidence and without fear or favor. The
disqualification of a judge cannot be based on mere speculations and surmises or be
predicated on the adverse nature of the judge’s rulings towards the movant for
inhibition.54 (Bold underscoring supplied for emphasis)
Rallos contends that Justice Abarintos improperly participated in CA.G.R. CEB SP. No.
06676 despite having previously inhibited himself in CA-G.R. CEB SP. No.
06364,whichhadinvolved Cebu City as the petitioner and the Heirs of Vicente Rallos as the
respondents, on the ground that some of the siblings and relatives of Rallos were his
friends.55
We disagree with the contention of Rallos.
It appears that Rallos, in her capacity as the administratix of the estate of Vicente Rallos,
had submitted in Special Proceeding No. 1017-R entitled Testate Estate of Vicente Rallos,
deceased; Vicente Gullas, Executor a supplemental inventory of the properties of the estate
that included the two parcels of land that were later the subject of CA.G.R. CEB SP.No.
06676.The probate court issued an order on October 13, 1998 directing the transfer of the
properties listed in the supplemental inventory to Rallos and her co-heirs. Feeling
aggrieved, Cebu City appealed to the CA to nullify the October 13, 1998 order, and also to
pray that Rallos as the administratix of the testate estate of Vicente Rallos be directed to
execute a deed of donation respecting the disputed lots in favor of Cebu City pursuant to
the convenio (CA-G.R. CEB SP. No. 06364).
To recall, the resolution of March 28, 2012 concerned the preliminary matter of having
Cebu City comply with the deficiencies of its petition in CA-G.R. CEB SP. No. 06676, while
the resolution of April13, 2012 involved the issuance of the TRO to prevent the execution of
the decisions and the consolidated order by the RTC that would probably render the
consideration and adjudication of CA-G.R. CEB SP. No. 06676 moot and academic. If, at
that stage of the proceedings in CA-G.R. CEB SP.No. 06676, Justice Abarintos believed
himself to be capacitated to take part, the Court is in no position to dispute his capacity to
do so in the absence of any clear and persuasive showing by Rallos that he would not be
objective and impartial as far as the issues and the parties were concerned. Indeed, at that
stage of the proceedings, any decision to voluntarily inhibit was primarily a matter of
conscience and sound discretion on his part. The discretion, according to Abrajano v. Heirs
of Augusto F. Salas, Jr., supra, "is an acknowledgement of the fact that judges are in a
better position to determine the issue of inhibition, as they are the ones who directly deal
with the parties-litigants in their courtrooms," provided the decision is based on a
"rational and logical assessment of the circumstances prevailing in the case brought before
him." Thus, based on the guidelines set in Section 1, Rule 137 of the Rules of Court, the
participation of Justice Abarintos in the initial stage of the proceedings in CA-G.R. CEB
SP. No. 06676 despite having previously inhibited himself in CA-G.R. CEB SP. No. 06364
could not be held as improper under the circumstances.
In any event, Justice Abarintos subsequently saw the need for his voluntary inhibition
when CA-G.R. CEB SP. No. 06676 came to be assigned to him following the transfer to
Manila of Justice Paredes. His voluntary inhibition occurred on June 7, 2012. What is note
worthy is that Rallos could have filed a motion for his inhibition if she considered the
participation of Justice Abarintos in CA-G.R. CEB SP. No. 06676 as improper. That she
raises the issue of his inhibition only before this Court in this administrative proceeding
leaves the Court no choice but to regard her imputation of impropriety and bias against
him as a mere after thought considering that she does so only after the CA had issued the
writ of preliminary injunction sought by Cebu City.
Rallos charges Justice Hernando with bias because he voluntarily inhibited himself in CA-
G.R. CEB SP. No. 06676 only after the promulgation of the March 28, 2012 and April 13,
2012 resolutions.56
Again, we cannot agree with Rallos.
In the notice he sent to the CA Raffle Committee, Justice Hernando stated the reasons why
he decided to inhibit himself from the case, to wit:
It has come to the attention of the undersigned that prior to the official issuance of the
Court’s Order dated April13, 2012 in the above-cited case which granted petitioner’s
prayer for a Temporary Restraining Order, an alleged representative of the petitioner’s
City Legal Office attempted to secure a copy of said Order, citing a purported instruction
from the u[n]dersigned to the City Legal Office to procure it. For the record, the
undersigned strongly accentuates that he never did so, nor is he familiar, either personally
or by acquaintance, with the fellow in question.
This event has now rendered it completely untenable for the undersigned to participate in
the proceedings concerning this case if only to obviate suspicions of undue influence by
him, or by the petitioner itself. Hence, I am voluntarily inhibiting myself from this
litigation. May I therefore request for its re-raffle to another Justice to replace me as
ponente.57
The fact that Justice Hernando voluntarily inhibited himself after writing the assailed
resolutions did not establish his bias against Rallos and her co-heirs considering that the
inhibition was for the precise objective of eliminating suspicions of undue influence. The
justification of Justice Hernando was commendable, and should be viewed as a truly just
and valid ground for his self-disqualification as a judicial officer in a specific case.
Rallos insists that she was entitled to be informed about the inhibitions of the Justices and
about their reasons for the inhibitions.
Rule V of the 2009 Internal Rules of the Court of Appeals expressly provides the rules on
inhibition of Justices, viz:
Rule V
INHIBITION OF JUSTICES
Section 1. Mandatory Inhibition of Justices. –When a Justice is disqualified under any of the
grounds enumerated in the first paragraph of Sec. 1, Rule 137 of the Rules of Court and in
Rule 3.12 of the Code of Judicial Conduct, he/she shall immediately notify the Raffle
Committee and the members of his/herDivision.
SEC. 2. Voluntary Inhibition of a Justice. –An inhibition of a Justice, whether mandatory

or voluntary, must be made within ten (10) working days from his/her discovery of a just
and valid reason to inhibit.
Copies of the action of the Justice shall be furnished to the other members of the Division,
the Presiding Justice, the Raffle Committee and the Division Clerk of Court.
SEC. 3. Motion to Inhibit a Division or a Justice. – A motion for inhibition must be in

writing and under oath and shall state the grounds therefor. A motion for inhibition of a
Division or a Justice must be acted upon by the Division or the Justice concerned, as the
case may be, within ten (10) working days from its/his/her receipt thereof except when
there is an application for a temporary restraining order, in which case, the motion must
be acted upon immediately.
No motion for inhibition of a Justice or Division will be granted after a decision on the
merits or substance of the case has been rendered or issued by any Division except for a
valid or just reason, e.g. allegation of corrupt motives. [Pursuant to AM No. 02-6-13-CA
dated June 19, 2007 of the Supreme Court].
One who files a motion for inhibition without basis and manifestly for delay may be cited in
contempt of court. A lawyer who assists in the filing of such baseless and dilatory motion
may be referred by the Justice concerned or by the Court motu proprio to the Supreme
Court for appropriate disciplinary action.
SEC. 4. Action on Inhibition. –The action on the inhibition shall be attached to the rollo and
paged.
SEC.5. Right of Replacement. – When a Justice inhibits himself/herself from a case, the
Justice to whom it is raffled may replace it with another case of similar nature and status,
subject to Sec. 4 (c), Rule III.
As the foregoing rules indicate, there are two kinds of inhibition, the mandatory and the
voluntary. In mandatory inhibition, the disqualified Justice must notify the Raffle
Committee and the Members of the Division of the decision to inhibit. Involuntary
inhibition, the inhibiting Justice must inform the other Members of the Division, the
Presiding Justice, the Raffle Committee, and the Division Clerk of Court of the decision to
inhibit and the reason for the inhibition. There is nothing in Rule V or in any other part of
the Internal Rules of the Court of Appeals that specifically requires that the party-litigants
be informed of the mandatory or voluntary inhibition of a Justice.
Nevertheless, a party-litigant who desires to be informed of the inhibition of a Justice and

of the reason for the inhibition must file a motion for inhibition in the manner provided
under Section 3, Rule V of the Internal Rules of the Court of Appeals, supra. Upon the
filing of the motion, the party-litigant becomes entitled to be notified of the CA’s action on
the motion for inhibition and of the reasons for the action. Likewise, the party-litigant may
seek the reconsideration or may appeal to the Court any action on the part of the CA on
the motion for inhibition or motion for reconsideration. Alas, Rallos did not submit a
motion for the inhibition of any of the respondent Justices.
We do not subscribe to Rallos’ suggestion that the series of inhibitions in CA-G.R. SP No.
06676 constituted a scheme to favor Cebu City. She presented no proof to validate her
suggestion. In fact, she herself conceded that she was thereby only voicing out her suspicion
of an irregularity. To stress, their good faith and regularity in the performance of official
duties, which are strong presumptions under our laws, should prevail unless overcome by
contrary proof. Worth noting in that regard is that there was even no valid reason that
could have prohibited the Justices charged in A.M. No. 12-9-08-CAfrom participating in
CA-G.R. SP No. 06676. It serves well to consider, too, that none of the respondent Justices
charged in IPI No. 12-203-CA-J is anymore participating in CA-G.R. SP No. 06676; and
that the respondent Justices charged in A.M. No. 12-9-08-CA were chosen by raffle as
required under pre-existing rules and regulations to replace the Justices who had
meanwhile voluntarily inhibited themselves from further participation for valid reasons.
The foregoing notwithstanding, the Court holds, conformably with the urging of Justice
Arturo D. Brion, that hence forth all the parties in any action or proceedings should be
immediately notified of any mandatory disqualification or voluntary inhibition of the
Judge or Justice who has participated in any action of the court, stating the reason for the
mandatory disqualification or voluntary inhibition. The requirement of notice is a measure
to ensure that the disqualification or inhibition has not been resorted to in order to cause
injustice to or to prejudice any party or cause.
WHEREFORE, the Court DISMISSES the administrative complaints against Court of
Appeals Associate Justice Pampio A. Abarintos, Associate Justice Ramon Paul L.
Hernando, Associate Justice Victoria Isabel A. Paredes, Associate Justice Gabriel T. Ingles,
Associate Justice Pamela Ann Maxino and Associate Justice Carmelita S. Manahan for
their lack of merit and substance.
The Court DIRECTS that henceforth all the parties in any action or proceedings shall be
notified within five (5) days of the mandatory disqualification or voluntary inhibition of a
Judge or Justice who has participated in any action of the court, stating the reason or
reasons for the mandatory disqualification or voluntary inhibition.
The Court Administrator is ORDERED to disseminate this decision to all courts of the
Philippines for their guidance and strict compliance.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
MARIA LOURDES P.A. SERENO

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice





Associate Justice
Footnotes
1 Rollo (A.M. No. 12-9-08-CA) pp. 31-47.
2 Id. at 48-50.
3 Id. at 51-55.
4 Id. at 56-68.
5 Id. at 69-74.
6 Id. at 75-93.
7 Id. at 94-95.
8 Id. at 99-110.
9 Id. at 111.
10 Id. at 113-114.
11 Id. at 115-116.
12 Id. at 117.
13 Id. at 168-189.
14 Id. at 187.
15 Id. at 140.
16 Id. at 195-196.
17 Id. at 206-208.
18 Id. at 197-199.
19 Id. at 207.
20 Id. at 142.
21 Id. at 209.
22 Id. at 142.
23 Id.
24 Id.
25 Id. at 210-255.
26 Id. at 143.
27 Id. at 256.
28 Id. at 143.
29 Id. at 257.
30 Id. at 143.
31 Id. at 118-121.
32 Id. at 146.
33 Rollo(IPI No. 12-203-CA-J), pp. 1-7.
34 Id. at 23-31.
35 Id. at 35.
36 Rollo (A.M. No. 12-9-08-CA), pp. 4-30.
37 Id. at 137.
38 Id. at 139-163.
39 Rollo (IPI No. 12-203-CA-J), p.37.
40 Id. at 47-51, 55-59, and 68-70.
41 Id. at 26-27.
42 Id. at 27-28.
43 Id. at 29-31.
44 Rollo(A.M. No. 12-9-08-CA), pp. 14-19.

45 Id. at 18-20.
46 Id. at 20-28.
47 Cruz v. Iturralde, A.M. RTJ No. 03-1775, April 30, 2003, 402 SCRA 65, 71-72.
48 A.M. No. RTJ-03-1748, November 11, 2008, 415 SCRA 377, 382.
49 Hilado v. Reyes, A.M. No. RTJ-05-1910, April 15, 2005, 456 SCRA 146, 162.
50 Rollo(IPI No. 12-203-CA-J), p. 69.
51 Id. at 49
52 Rollo (A.M. No. 12-9-08-CA), pp. 152-154.
53 G.R. No. 158895, February 16, 2006, 482 SCRA 476.
54 Id. at 486-488.
55 Rollo(IPI No. 12-203-CA-J), p. 50
56 Id. at 27-28.
57 Id. at 71.
SUPREME COURT
Manila
EN BANC
G.R. No. 159110 December 10, 2013
VALENTINO L. LEGASPI, Petitioner,

vs.
CITY OF CEBU, T.C. (TITO) SAYSON AND RICARDO HAPITAN, Respondents.
x---------------x
G.R. No. 159692
BIENVENIDO P. JABAN, SR., and BIENVENIDO DOUGLAS LUKE BRADBURY JABAN,

Petitioners,
vs.
COURT OF APPEALS, CITY OF CEBU, CITY MAYOR ALVIN GARCIA,
SANGUNIANG PANLUNSOD OF CITY OF CEBU, HON. RENATO V. OSMEÑA, AS
PRESIDING OFFICER OF THE SANGGUNIANG PANLUNSOD and CITOM
CHAIRMAN ALAN GAVIOLA, AS CITOM CHIEF, CITOM TRAFFIC ENFORCER E.
A. ROMERO, and LITO GILBUENA, Respondents.
DECISION
BERSAMIN, J.:
The goal of the decentralization of powers to the local government units (LGUs) is to ensure the
enjoyment by each of the territorial and political subdivisions of the State of a genuine and
meaningful local autonomy. To attain the goal, the National Legislature has devolved the three
great inherent powers of the State to the LGUs. Each political subdivision is there by vested with
such powers subject to constitutional and statutory limitations.
In particular, the Local Government Code (LGC) has expressly empowered the LGUs to enact
and adopt ordinances to regulate vehicular traffic and to prohibit illegal parking within their
jurisdictions. Now challenged before the Court are the constitutionality and validity of one such
ordinance on the ground that the ordinance constituted a contravention of the guaranty of due
process under the Constitution by authorizing the immobilization of offending vehicles through
the clamping of tires. The challenge originated in the Regional Trial Court (RTC) at the instance
of the petitioners – vehicle owners who had borne the brunt of the implementation of the
ordinance –with the RTC declaring the ordinance unconstitutional, but it has now reached the
Court as a consolidated appeal taken in due course by the petitioners after the Court of Appeals
(CA) reversed the judgment of the RTC.
Antecedents
On January 27, 1997 the Sangguniang Panlungsod of the City of Cebu enacted Ordinance No.
1664toauthorizethetraffic enforcers of Cebu City to immobilize any motor vehicle violating the
parking restrictions and prohibitions defined in Ordinance No. 801 (Traffic Code of Cebu City).1
The pertinent provisions of Ordinance No. 1664 read:
Section 1. POLICY–It is the policy of the government of the City of Cebu to immobilize any
motor vehicle violating any provision of any City Ordinance on Parking Prohibitions or
Restrictions, more particularly Ordinance No. 801, otherwise known as the Traffic Code of Cebu
City, as amended, in order to have a smooth flow of vehicular traffic in all the streets in the City
of Cebu at all times.
Section 2. IMMOBILIZATION OF VEHICLES–Any vehicle found violating any provision of

any existing ordinance of the City of Cebu which prohibits, regulates or restricts the parking of
vehicles shall be immobilized by clamping any tire of the said violating vehicle with the use of a
denver boot vehicle immobilizer or any other special gadget designed to immobilize motor
vehicles. For this particular purpose, any traffic enforcer of the City (regular PNP Personnel or
Cebu City Traffic Law Enforcement Personnel) is hereby authorized to immobilize any violating
vehicleas hereinabove provided.
Section 3. PENALTIES–Any motor vehicle, owner or driver violating any ordinance on parking
prohibitions, regulations and/or restrictions, as may be providedunder Ordinance No. 801, as
amended, or any other existing ordinance, shall be penalized in accordance with the penalties
imposed in the ordinance so violated, provided that the vehicle immobilizer may not be removed
or released without its owner or driver paying first to the City Treasurer of Cebu City through the
Traffic Violations Bureau (TVB) all the accumulated penalties for all prior traffic law violations
that remain unpaid or unsettled, plus the administrative penalty of Five Hundred Pesos (P500.00)
for the immobilization of the said vehicle, and receipts of such payments presented to the
concerned personnel of the bureau responsible for the release of the immobilized vehicle, unless
otherwise ordered released by any of the following officers:
a) Chairman, CITOM
b) Chairman, Committee on Police, Fire and Penology
c) Asst. City Fiscal Felipe Belciña
3.1 Any person who tampers or tries to release an immobilized or clamped motor vehicle by
destroying the denver boot vehicle immobilizer or other such special gadgets, shall be liable for
its loss or destruction and shall be prosecuted for such loss or destruction under pain or penalty
under the Revised Penal Code and any other existing ordinance of the City of Cebu for the
criminal act, in addition to his/her civil liabilities under the Civil Code of the Philippines;
Provided that any such act may not be compromised nor settled amicably extrajudicially.
3.2 Any immobilized vehicle which is unattended and constitute an obstruction to the free flow
of traffic or a hazard thereof shall be towed to the city government impounding area for
safekeeping and may be released only after the provision of Section 3 hereof shall have been
fully complied with.
3.3 Any person who violates any provision of this ordinance shall, upon conviction, be penalized
with imprisonment of not less than one (1)month nor more than six (6) months or of a fine of not
less than Two Thousand Pesos(P2,000.00)nor more than Five Thousand Pesos(P5,000.00), or
both such imprisonment and fine at the discretion of the court.2
On July 29, 1997, Atty. Bienvenido Jaban (Jaban,Sr.) and his son Atty. Bienvenido Douglas
Luke Bradbury Jaban (Jaban,Jr.) brought suit in the RTC in Cebu City against the City of Cebu,
then represented by Hon. Alvin Garcia, its City Mayor, the Sangguniang Panlungsod of Cebu
City and its Presiding Officer, Hon. Renato V. Osmeña, and the chairman and operatives or
officers of the City Traffic Operations Management (CITOM),seeking the declaration of
Ordinance No. 1644 as unconstitutional for being in violation of due process and for being
contrary to law, and damages.3 Their complaint alleged that on June 23, 1997, Jaban Sr. had
properly parked his car in a paying parking area on Manalili Street, Cebu City to get certain
records and documents fromhis office;4that upon his return after less than 10 minutes, he had
found his car being immobilized by a steel clamp, and a notice being posted on the car to the
effect that it would be a criminal offense to break the clamp;5 that he had been infuriated by the
immobilization of his car because he had been thereby rendered unable to meet an important
client on that day; that his car was impounded for three days, and was informed at the office of
the CITOM that he had first to payP4,200.00as a fine to the City Treasurer of Cebu City for the
release of his car;6that the fine was imposed without any court hearing and without due process
of law, for he was not even told why his car had been immobilized; that he had undergone a
similar incident of clamping of his car on the early morning of November 20, 1997 while his car
was parked properly in a parking lot in front of the San Nicolas Pasil Market in Cebu City
without violating any traffic regulation or causing any obstruction; that he was compelled to pay
P1,500.00(itemized as P500.00 for the clamping andP1,000.00for the violation) without any
court hearing and final judgment; that on May 19, 1997, Jaban, Jr. parked his car in a very
secluded place where there was no sign prohibiting parking; that his car was immobilized by
CITOM operative Lito Gilbuena; and that he was compelled to pay the total sum of P1,400.00for
the release of his car without a court hearing and a final judgment rendered by a court of justice.7
On August 11, 1997, Valentino Legaspi (Legaspi) likewise sued in the RTC the City of
Cebu,T.C. Sayson, Ricardo Hapitan and John Does to demand the delivery of personal property,
declaration of nullity of the Traffic Code of Cebu City, and damages.8 He averred that on the
morning of July 29, 1997, he had left his car occupying a portion of the sidewalk and the street
outside the gate of his house to make way for the vehicle of the anay exterminator who had
asked to be allowed to unload his materials and equipment from the front of the residence
inasmuch as his daughter’s car had been parked in the carport, with the assurance that the
unloading would not take too long;9 that while waiting for the anay exterminator to finish
unloading, the phone in his office inside the house had rung, impelling him to go into the house
to answer the call; that after a short while, his son-in-law informed him that unknown persons
had clamped the front wheel of his car;10 that he rushed outside and found a traffic citation
stating that his car had been clamped by CITOM representatives with a warning that the
unauthorized removal of the clamp would subject the remover to criminal charges;11 and that in
the late afternoon a group headed by Ricardo Hapitan towed the car even if it was not obstructing
the flow of traffic.12
In separate answers for the City of Cebu and its co-defendants,13 the City Attorney of Cebu
presented similar defenses, essentially stating that the traffic enforcers had only upheld the law
by clamping the vehicles of the plaintiffs;14 and that Ordinance No. 1664 enjoyed the
presumption of constitutionality and validity.15
The cases were consolidated before Branch 58 of the RTC, which, after trial, rendered on
January 22, 1999 its decision declaring Ordinance No. 1664 as null and void upon the following
ratiocination:
In clear and simple phrase, the essence of due process was expressed by Daniel Webster as a
"law which hears before it condemns". In another case[s], "procedural due process is that which
hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." It
contemplate(s)notice and opportunity to be heard before judgment is rendered affecting ones
(sic) person or property." In both procedural and substantive due process, a hearing is always a
pre-requisite, hence, the taking or deprivation of one’s life, liberty or property must be done upon
and with observance of the "due process" clause of the Constitution and the non-observance or
violation thereof is, perforce, unconstitutional.
Under Ordinance No. 1664, when a vehicle is parked in a prohibited, restrycted (sic) or regulated
area in the street or along the street, the vehicle is immobilized by clamping any tire of said
vehicle with the use of a denver boot vehicle immobilizer or any other special gadget which
immobilized the motor vehicle. The violating vehicle is immobilized, thus, depriving its owner
of the use thereof at the sole determination of any traffic enforcer or regular PNP personnel or
Cebu City Traffic Law Enforcement Personnel. The vehicle immobilizer cannot be removed or
released without the owner or driver paying first to the City Treasurer of Cebu through the
Traffic Violations Bureau all the accumulated penalties of all unpaid or unsettled traffic law
violations, plus the administrative penalty of P500.00 and, further, the immobilized vehicle shall
be released only upon presentation of the receipt of said payments and upon release order by the
Chairman, CITOM, or Chairman, Committee on Police, Fire and Penology, or Asst. City Fiscal
Felipe Belcina. It should be stressed that the owner of the immobilized vehicle shall have to
undergo all these ordeals at the mercy of the Traffic Law Enforcer who, as the Ordinance in
question mandates, is the arresting officer, prosecutor, Judge and collector. Otherwise stated, the
owner of the immobilized motor vehicle is deprived of his right to the use of his/her vehicle and
penalized without a hearing by a person who is not legally or duly vested with such rights, power
or authority. The Ordinance in question is penal in nature, and it has been held;
xxxx
WHEREFORE, premised (sic) considered, judgment is hereby rendered declaring Ordinance

No.1664unconstitutional and directing the defendant City of Cebu to pay the plaintiff Valentino
Legaspi the sum of P110,000.00 representing the value of his car, and to all the plaintiffs,
Valentino L. Legaspi, Bienvenido P. Jaban and Bienvenido Douglas Luke Bradbury Jaban, the
sum of P100,000.00 each or P300,000.00 all as nominal damages and another P100,000.00 each
orP300,000.00 all as temperate or moderate damages. With costs against defendant City of Cebu.
SO ORDERED.16 (citations omitted)
The City of Cebu and its co-defendants appealed to the CA, assigning the following errors to the
RTC, namely: (a) the RTC erred in declaring that Ordinance No. 1664 was unconstitutional; (b)
granting, arguendo, that Ordinance No. 1664 was unconstitutional, the RTC gravely erred in
holding that any violation prior to its declaration as being unconstitutional was irrelevant; (c)
granting, arguendo, that Ordinance No. 1664 was unconstitutional, the RTC gravely erred in
awarding damages to the plaintiffs; (d) granting, arguendo, that the plaintiffs were entitled to
damages, the damages awarded were excessive and contrary to law; and (e) the decision of the
RTC was void, because the Office of the Solicitor General (OSG) had not been notified of the
proceedings.
On June 16, 2003, the CA promulgated its assailed decision,17overturning the RTCand declaring
Ordinance No. 1664 valid, to wit:
The principal thrust of this appeal is the constitutionality of Ordinance 1664. Defendants-
appellants contend that the passage of Ordinance 1664is in accordance with the police powers
exercised by the City of Cebu through the Sangguniang Panlungsod and granted by RA 7160,
otherwise known as the Local Government Code. A thematic analysis of the law on municipal
corporations confirms this view. As in previous legislation, the Local Government Code
delegates police powers to the local governments in two ways. Firstly, it enumerates the subjects
on which the Sangguniang Panlungsod may exercise these powers. Thus, with respect to the use
of public streets, Section 458 of the Code states:
Section 458 (a) The sangguniang panlungsod, as the legislative branch of the city, x x x shall x x
x
(5) (v) Regulate the use of streets, avenues, alleys, sidewalks, bridges, park and other public
places and approve the construction, improvement, repair and maintenance of the same; establish
bus and vehicle stops and terminals or regulate the use of the same by privately owned vehicles
which serve the public; regulate garages and the operation of conveyances for hire; designate
stands to be occupied by public vehicles when not in use; regulate the putting up of signs,
signposts, awnings and awning posts on the streets; and provide for the lighting, cleaning and
sprinkling of streets and public places;
(vi) Regulate traffic on all streets and bridges; prohibit encroachments or obstacles thereon and,
when necessary in the interest of public welfare, authorize the removal of encroachments and
illegal constructions in public places.It then makes a general grant of the police power. The
scope of the legislative authority of the local government is set out in Section 16, to wit:
Section 16. General Welfare. –Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance, and those which are essential to the
promotion of the general welfare.
This provision contains what is traditionally known as the general welfare clause. As expounded
in United States vs. Salaveria, 39 Phil 102, the general welfare clause has two branches. One
branch attaches itself to the main trunk of municipal authority, and relates to such ordinances and
regulations as may be necessary to carry into effect and discharge the powers and duties
conferred upon the municipal council by law. The second branch of the clause is much more
independent of the specific functions of the council, and authorizes such ordinances as shall
seem necessary and proper to provide for health, safety, prosperity and convenience of the
municipality and its inhabitants.
In a vital and critical way, the general welfare clause complements the more specific powers
granted a local government. It serves as a catch-all provision that ensures that the local
government will be equipped to meet any local contingency that bears upon the welfare of its
constituents but has not been actually anticipated. So varied and protean are the activities that
affect the legitimate interests of the local inhabitants that it is well-nigh impossible to say
beforehand what may or may not be done specifically through law. To ensure that a local
government can react positively to the people’s needs and expectations, the general welfare
clause has been devised and interpreted to allow the local legislative council to enact such
measures as the occasion requires.
Founded on clear authority and tradition, Ordinance 1664 may be deemed a legitimate exercise
of the police powers of the Sangguniang Panlungsod of the City of Cebu. This local law
authorizes traffic enforcers to immobilize and tow for safekeeping vehicles on the streets that are
illegally parked and to release them upon payment of the announced penalties. As explained in
the preamble, it has become necessary to resort to these measures because of the traffic
congestion caused by illegal parking and the inability of existing penalties to curb it. The
ordinance is designed to improve traffic conditions in the City of Cebu and thus shows a real and
substantial relation to the welfare, comfort and convenience of the people of Cebu. The only
restrictions to an ordinance passed under the general welfare clause, as declared in Salaveria, is
that the regulation must be reasonable, consonant with the general powers and purposes of the
corporation, consistent with national laws and policies, and not unreasonable or discriminatory.
The measure in question undoubtedly comes within these parameters.
Upon the denial of their respective motions for reconsideration on August 4, 2003, the Jabans
and Legaspi came to the Court via separate petitions for review on certiorari. The appeals were
consolidated.
Issues
Based on the submissions of the parties, the following issues are decisive of the challenge, to wit:
1. Whether Ordinance No. 1664was enacted within the ambit of the legislative powers of the
City of Cebu; and
2. Whether Ordinance No. 1664complied with the requirements for validity and constitutionality,
particularly the limitations set by the Constitution and the relevant statutes.
Ruling
The petitions for review have nomerit.
A.
Tests for a valid ordinance
In City of Manila v. Laguio, Jr.,18 the Court restatesthe tests of a valid ordinance thusly:
The tests of a valid ordinance are well established. A long line of decisions has held that for an
ordinance to be valid, it must not only be within the corporate powers of the local government
unit to enact and must be passed according to the procedure prescribed by law, it must also
conform to the following substantive requirements: (1) must not contravene the Constitution or
any statute; (2) must not be unfair or oppressive;(3) must not be partial or discriminatory; (4)
must not prohibit but may regulate trade; (5) must be general and consistent with public policy;
and (6) must not be unreasonable.19
As jurisprudence indicates, the tests are divided into the formal (i.e., whether the ordinance was
enacted within the corporate powers of the LGU, and whether it was passed in accordance with
the procedure prescribed by law), and the substantive (i.e.,involving inherent merit, like the
conformity of the ordinance with the limitations under the Constitution and the statutes, as well
as with the requirements of fairness and reason, and its consistency with public policy).
B.
Compliance of Ordinance No. 1664
with the formal requirements
Was the enactment of Ordinance No. 1664 within the corporate powers of the LGU of the City of
Cebu?
The answer is in the affirmative. Indeed, with no issues being hereby raised against the
formalities attendant to the enactment of Ordinance No. 1664, we presume its full compliance
with the test in that regard. Congress enacted the LGC as the implementing law for the
delegation to the various LGUs of the State’s great powers, namely: the police power, the power
of eminent domain, and the power of taxation. The LGC was fashioned to delineate the specific
parameters and limitations to be complied with by each LGU in the exercise of these delegated
powers with the view of making each LGU a fully functioning subdivision of the State subject to
the constitutional and statutory limitations.
In particular, police power is regarded as "the most essential, insistent and the least limitable of
powers, extending as it does ‘to all the great public needs.’"20 It is unquestionably "the power
vested in the legislature by the constitution, to make, ordain and establish all manner of
wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not
repugnant to the constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subject of the same."21 According to Cooley: "[The police power]
embraces the whole system of internal regulation by which the state seeks not only to preserve
the public order and to prevent offences against itself, but also to establish for the intercourse of
citizens with citizens, those rules of good manners and good neighborhood which are calculated
to prevent the conflict of rights and to insure to each the uninterrupted enjoyment of his own, so
far as it is reasonably consistent with the right enjoyment of rights by others."22
In point is the exercise by the LGU of the City of Cebu of delegated police power. In
Metropolitan Manila Development Authorityv. Bel-Air Village Association,Inc.,23 the Court
cogently observed:
It bears stressing that police power is lodged primarily in the National Legislature. It cannot be
exercised by any group or body of individuals not possessing legislative power. The National
Legislature, however, may delegate this power to the President and administrative boards as well
as the lawmaking bodies of municipal corporations or local government units. Once delegated,
the agents can exercise only such legislative powers as are conferred on them by the national
lawmaking body. (emphasis supplied)
The CA opined, and correctly so, that vesting cities like the City of Cebu with the legislative
power to enact traffic rules and regulations was expressly done through Section 458 of the LGC,
and also generally by virtue of the General Welfare Clause embodied in Section 16 of the
LGC.24Section 458of the LGC relevantly states: Section 458. Powers, Duties, Functions and
Composition. –(a) The sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate
powers of the city as provided for under Section 22 of this Code, and shall:
xxxx
(5) Approve ordinances which shall ensure the efficient and effective delivery of the basic
services and facilities as provided for under Section 17 of this Code, and in addition to said
services and facilities, shall:
xxxx
(v) Regulate the use of streets, avenues, alleys, sidewalks, bridges, parks and other public places
and approve the construction, improvement repair and maintenance of the same; establish bus
and vehicle stops and terminals or regulate the use of the same by privately-owned vehicles
which serve the public; regulate garages and operation of conveyances for hire;designate stands
to be occupied by public vehicles when not in use; regulate the putting up of signs, signposts,
awnings and awning posts on the streets; and provide for the lighting, cleaning and sprinkling of
streets and public places;(vi) Regulate traffic on all streets and bridges; prohibit encroachments
or obstacles thereon and, when necessary in the interest of public welfare, authorize the removal
of encroachments and illegal constructions in public places;(emphasis supplied)The foregoing
delegation reflected the desire of Congress to leave to the cities themselves the task of
confronting the problem of traffic congestions associated with development and progress
because they were directly familiar with the situations in their respective jurisdictions. Indeed,
the LGUs would be in the best position to craft their traffic codes because of their familiarity
with the conditions peculiar to their communities. With the broad latitude in this regard allowed
to the LGUs of the cities ,their traffic regulations must be held valid and effective unless they
infringed the constitutional limitations and statutory safeguards.
C.
Compliance of Ordinance No. 1664
with the substantive requirements
The first substantive requirement for a valid ordinance is the adherence to the constitutional
guaranty of due process of law. The guaranty is embedded in Article III, Section 1 of the
Constitution, which ordains:
Section 1. No person shall be deprived of life, liberty or property without due process of law, nor
shall any person be denied the equal protection of the laws.4
The guaranty of due process of law is a constitutional safeguard against any arbitrariness on the
part of the Government, whether committed by the Legislature, the Executive, or the Judiciary. It
is a protection essential to every inhabitant of the country, for, as a commentator on
Constitutional Law has vividly written:25
x x x. If the law itself unreasonably deprives a person of his life, liberty, or property, he is denied
the protection of due process. If the enjoyment of his rights is conditioned on an unreasonable
requirement, due process is likewise violated. Whatsoever be the source of such rights, be it the
Constitution itself or merely a statute, its unjustified withholding would also be a violation of due
process. Any government act that militates against the ordinary norms of justice or fair play is
considered an infraction of the great guaranty of due process; and this is true whether the denial
involves violation merely of the procedure prescribed by the law or affects the very validity of
the law itself.
In City of Manila v. Laguio, Jr.,26 the Court expounded on the aspects of the guaranty of due
process of law as a limitation on the acts of government, viz:
This clause has been interpreted as imposing two separate limits on government, usually called
"procedural due process" and "substantive due process."
Procedural due process, as the phrase implies, refers to the procedures that the government must
follow before it deprives a person of life, liberty, or property. Classic procedural due process
issues are concerned with that kind of notice and what form of hearing the government must
provide when it takes a particular action.
Substantive due process, as that phrase connotes, asks whether the government has an adequate
reason for taking away a person’s life, liberty, or property. In other words, substantive due
process looks to whether there is sufficient justification for the government’s action. Case law in
the United States (U.S.) tells us that whether there is such a justification depends very much on
the level of scrutiny used. For example, if a law is in an area where only rational basis review is
applied, substantive due process is met so long as the law is rationally related to a legitimate
government purpose. But if it is an area where strict scrutiny is used, such as for protecting
fundamental rights, then the government will meet substantive due process only if it can prove
that the law is necessary to achieve a compelling government purpose.
The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law. Such power
cannot be exercised whimsically, arbitrarily or despotically as its exercise is subject to a
qualification, limitation or restriction demanded by the respect and regard due to the prescription
of the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it
bears emphasis, may be adversely affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare. Due process requires the intrinsic
validity of the law in interfering with the rights of the person to his life, liberty and property.27
The Jabans contend that Ordinance No. 1664, by leaving the confiscation and immobilization of
the motor vehicles to the traffic enforcers or the regular personnel of the Philippine National
Police (PNP) instead of to officials exercising judicial authority, was violative of the
constitutional guaranty of due process; that such confiscation and immobilization should only be
after a hearing on the merits by courts of law; and that the immobilization and the clamping of
the cars and motor vehicles by the police or traffic enforcers could be subject to abuse.
On his part, Legaspi likewise contends that Ordinance No. 1664 violated the constitutional
guaranty of due process for being arbitrary and oppressive; and that its provisions conferring
upon the traffic enforcers the absolute discretion to be the enforcers, prosecutors, judges and
collectors all at the same time were vague and ambiguous.28 He reminds that the grant of police
powers for the general welfare under the LGC was not unlimited but subject to constitutional
limitations;29and that these consolidated cases should not be resolved differently from the
resolution of a third case assailing the validity of Ordinance No.1664 (Astillero case), in which
the decision of the same RTC declaring Ordinance No.1664 as unconstitutional had attained
finality following the denial of due course to the appeal of the City of Cebu and its co-
defendants.
Judged according to the foregoing enunciation of the guaranty of due process of law, the
contentions of the petitioners cannot be sustained. Even under strict scrutiny review, Ordinance
No. 1664 met the substantive tests of validity and constitutionality by its conformity with the
limitations under the Constitution and the statutes, as well as with the requirements of fairness
and reason, and its consistency with public policy.
To us, the terms encroachment and obstacles used in Section 458 of the LGC, supra, were broad
enough to include illegally parked vehicles or whatever else obstructed the streets, alleys and
sidewalks, which were precisely the subject of Ordinance No. 1664 in a vowedly aiming to
ensure "a smooth flow of vehicular traffic in all the streets in the City of Cebu at all times"
(Section 1). This aim was borne out by its Whereas Clauses, viz:
WHEREAS, the City of Cebu enacted the Traffic Code (Ordinance No. 801) as amended,
provided for Parking Restrictions and Parking Prohibitions in the streets of Cebu City;
WHEREAS, despite the restrictions and prohibitions of parking on certain streets of Cebu City,
violations continued unabated due, among others, to the very low penalties imposed under the
Traffic Code of Cebu City;
WHEREAS, City Ordinance 1642 was enacted in order to address the traffic congestions caused
by illegal parkings in the streets of Cebu City;
WHEREAS, there is a need to amend City Ordinance No.1642 in order to fully address and solve
the problem of illegal parking and other violations of the Traffic Code of Cebu City;30
(emphasis supplied)
Considering that traffic congestions were already retarding the growth and progress in the
population and economic centers of the country, the plain objective of Ordinance No. 1664 was
to serve the public interest and advance the general welfare in the City of Cebu. Its adoption was,
therefore, in order to fulfill the compelling government purpose of immediately addressing the
burgeoning traffic congestions caused by illegally parked vehicles obstructing the streets of the
City of Cebu.
Legaspi’s attack against the provisions of Ordinance No. 1664 for being vague and ambiguous
cannot stand scrutiny. As can be readily seen, its text was for thright and unambiguous in all
respects. There could be no confusion on the meaning and coverage of the ordinance. But should
there be any vagueness and ambiguity in the provisions, which the OSG does not concede,31
there was nothing that a proper application of the basic rules of statutory construction could not
justly rectify.
The petitioners further assert that drivers or vehicle owners affected by Ordinance No. 1664 like
themselves were not accorded the opportunity to protest the clamping, towing, and impounding
of the vehicles, or even to be heard and to explain their side prior to the immobilization of their
vehicles; and that the ordinance was oppressive and arbitrary for that reason.
The adverse assertions against Ordinance No. 1664 are unwarranted.
Firstly, Ordinance No. 1664 was far from oppressive and arbitrary. Any driver or vehicle owner
whose vehicle was immobilized by clamping could protest such action of a traffic enforcer or
PNP personnel enforcing the ordinance. Section 3 of Ordinance No. 1664, supra, textually
afforded an administrative escape in the form of permitting the release of the immobilized
vehicle upon a protest directly made to the Chairman of CITOM; or to the Chairman of the
Committee on Police, Fire and Penology of the City of Cebu; or to Asst. City Prosecutor Felipe
Belciña–officials named in the ordinance itself. The release could be ordered by any of such
officials even without the payment of the stipulated fine. That none of the petitioners, albeit
lawyers all, resorted to such recourse did not diminish the fairness and reasonableness of the
escape clause written in the ordinance. Secondly, the immobilization of a vehicle by clamping
pursuant to the ordinance was not necessary if the driver or vehicle owner was around at the time
of the apprehension for illegal parking or obstruction. In that situation, the enforcer would simply
either require the driver to move the vehicle or issue a traffic citation should the latter persist in
his violation. The clamping would happen only to prevent the transgress or from using the
vehicle itself to escape the due sanctions. And, lastly, the towing away of the immobilized
vehicle was not equivalent to a summary impounding, but designed to prevent the immobilized
vehicle from obstructing traffic in the vicinity of the apprehension and thereby ensure the smooth
flow of traffic. The owner of the towed vehicle would not be deprived of his property.
In fine, the circumstances set forth herein indicate that Ordinance No. 1664 complied with the
elements of fairness and reasonableness.
Did Ordinance No. 1664 meet the requirements of procedural due process?
Notice and hearing are the essential requirements of procedural due process. Yet, there are many
instances under our laws in which the absence of one or both of such requirements is not
necessarily a denial or deprivation of due process. Among the instances are the cancellation of
the passport of a person being sought for the commission of a crime, the preventive suspension
of a civil servant facing administrative charges, the distraint of properties to answer for tax
delinquencies, the padlocking of restaurants found to be unsanitary or of theaters showing
obscene movies, and the abatement of nuisance per se.32 Add to them the arrest of a person in
flagrante delicto.33
The clamping of the petitioners’ vehicles pursuant to Ordinance No. 1664 (and of the vehicles of
others similarly situated) was of the same character as the aforecited established exceptions
dispensing with notice and hearing. As already said, the immobilization of illegally parked
vehicles by clamping the tires was necessary because the transgressors were not around at the
time of apprehension. Under such circumstance, notice and hearing would be superfluous. Nor
should the lack of a trial-type hearing prior to the clamping constitute a breach of procedural due
process, forgiving the transgressors the chance to reverse the apprehensions through a timely
protest could equally satisfy the need for a hearing. In other words, the prior intervention of a
court of law was not indispensable to ensure a compliance with the guaranty of due process.
To reiterate, the clamping of the illegally parked vehicles was a fair and reasonable way to
enforce the ordinance against its transgressors; otherwise, the transgressors would evade liability
by simply driving away.
Finally, Legaspi’s position, that the final decision of the RTC rendered in the Astillero case
declaring Ordinance No. 1664 unconstitutional bound the City of Cebu, thereby precluding these
consolidated appeals from being decided differently, is utterly untenable. For one, Legaspi
undeservedly extends too much importance to an irrelevant decision of the RTC–irrelevant,
because the connection between that case to these cases was not at all shown. For another, he
ignores that it should be the RTC that had improperly acted for so deciding the Astillero case
despite the appeals in these cases being already pending in the CA. Being the same court in the
three cases, the RTC should have anticipated that in the regular course of proceedings the
outcome of the appeal in these cases then pending before the CA would ultimately be elevated to
and determined by no less than the Court itself. Such anticipation should have made it refrain
from declaring Ordinance No. 1664 unconstitutional, for a lower court like itself, appreciating its
position in the "interrelation and operation of the integrated judicial system of the nation," should
have exercised a "becoming modesty" on the issue of the constitutionality of the same ordinance
that the Constitution required the majority vote of the Members of the Court sitting en bane to
determine.34 Such "becoming modesty" also forewarned that any declaration of
unconstitutionality by an inferior court was binding only on the parties, but that a declaration of
unconstitutionality by the Court would be a precedent binding on all. 35
WHEREFORE, the Court DENIES the pet1t10ns for review on certiorari for their lack of merit;
AFFIRMS the decision promulgated on June 16, 2003 by the Court of Appeals; and ORDERS
the petitioners to pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
MARIA LOURDES P.A. SERENObr />Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice





Associate Justice
CERTIFICATION

Chief Justice
Footnotes
1 Records (Vol. 1), pp. 146-149.
2 Id.
3 Id. at 1-10.
4 Id. at3.
5 Id.
6 Id. at 4.
7 Id.
8 Records (Vol. 2), pp. 1-10.
9 Id. at1-2.
10 Id. at2.
11 Id. at3.
12 Id.
13 Records (Vol. 1), pp. 14-27 and Records (Vol. 2), pp. 16-22.
14 Records (Vol. 1), p.20 and Records (Vol. 2),p.18.
15 Records (Vol. 1), p. 21.
16 Rollo (G.R. No. 159692), pp. 47-49.
17 Id. at 51-60.
18 G.R. No. 118127, April 12, 2005, 455 SCRA 308.

19 Id. at 326, citing Tatel v. Municipality of Virac, G.R. No. 40243, March 11, 1992, 207
SCRA 157, 161; Solicitor General v. Metropolitan Manila Authority, G.R. No. 102782,
December 11, 1991, 204 SCRA 837, 845; Magtajas v. Pryce Properties Corporation, Inc.,
G.R. No. 111097, July 20, 1994, 234 SCRA 255, 266-267.
20 Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,
No. L-24693, July 31, 1967, 20 SCRA 849, 857-858.
21 Chief Justice Shaw, in Commonwealth v. Alger, 7 Cush. 53, 85, 61 Mass 53.
22 Constitutional Limitations, p. 572
23 G.R. No. 135962, March 27, 2000, 328 SCRA 836, 843-844; see also Gancayco v.
City Government of Quezon City, G.R. No. 177807, October 11, 2011, 658 SCRA 853,
863.
24 Section 16. General Welfare. - Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of
the people to a balanced ecology, encourage and support the development of appropriate
and self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their inhabitants.
25 Cruz, Constitutional Law, 2007 Ed., pp. 100-101.
26 Supra note 18.
27 Id. at 330-331.
28 Rollo (G.R. No. 159110), pp. 12-13.
29 Id. at15.
30 Records (Vol. 1), p. 146.
32 Cruz, op. cit., note 25, at 119.
33 Section 5(a), Rule 113, Rules of Court.

EN BANC
March 4, 2014
A.C. No. 10179

(Formerly CBD 11-2985)
BENJAMIN Q. ONG, Complainant,

vs.
ATTY. WILLIAM F. DELOS SANTOS, Respondent.
DECISION
BERSAMIN, J.:
A lawyer's issuance of a worthless check renders him in breach of his oath to obey the laws. To
accord with the canon of professional responsibility that requires him to uphold the Constitution,
obey the laws of the land, and promote respect for the law and legal processes, he thereby
becomes administratively liable for gross misconduct.
Antecedents
In January 2008, complainant Benjamin Ong was introduced to respondent Atty. William F.
Delos Santos by Sheriff Fernando Mercado of the Metropolitan Trial Court of Manila. After
several calls and personal interactions between them, Ong and Atty. Delos Santos became
friends.1 In time, according to Ong, Atty. Delos Santos asked him to encash his postdated check
inasmuch as he was in dire need of cash. To reassure Ong that the check would be funded upon
maturity, Atty. Delos Santos bragged about his lucrative practice and his good paying clients.
Convinced of Atty. Delos Santos’ financial stability, Ong handed to Atty. Delos Santos on
January 29, 2008 the amount of P100,000.00 in exchange for the latter’s Metrobank Check No.
0110268 postdated February 29, 2008.2 However, the check was dishonored upon presentment
for the reason that the account was closed.3 Ong relayed the matter of the dishonor to Atty.
Delos Santos, and demanded immediate payment, but the latter just ignored him.4 When efforts
to collect remained futile, Ong brought a criminal complaint for estafa and for violation of Batas
Pambansa Blg. 22 against Atty. Delos Santos.5 Ong also brought this disbarment complaint
against Atty. Delos Santos in the Integrated Bar of the Philippines (IBP), which docketed the
complaint as CBD Case No. 11-2985.
Findings and Recommendation

of the IBP Bar Commissioner
In his Commissioner’s Report,6 IBP Bar Commissioner Jose I. Dela Rama, Jr. stated that Ong
had sufficiently established the existence of the dishonored check; and that Atty. Delos Santos
did not file his answer despite notice, and did not also present contrary evidence.7 He
recommended that Atty. Delos Santos be held liable for violating Canon 1, Rule 1.01 and Canon
7, Rule 7.03 of the Code of Professional Responsibility; and that the penalty of suspension from
the practice of law for two years, plus the return of the amount of P100,000.00 to the
complainant,8 be meted on Atty. Delos Santos in view of an earlier disbarment case brought
against him (Lucman v. Atty. Delos Santos, CBD Case No. 09-253).
Resolution No. XX-2013-253
On March 20, 2013, the IBP Board of Governors issued Resolution No. XX-2013-253 adopting
and approving the findings of IBP Commissioner Dela Rama, Jr.,9 to wit:
RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and

APPROVED the Report and Recommendation of the Investigating Commissioner in the above-
entitled case, herein made part of this Resolution as Annex "A," and finding the recommendation
fully supported by the evidence on record and the applicable laws and rules and considering that
Respondent violated Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the Code of Professional
Responsibility, Atty. William F. Delos Santos is hereby SUSPENDED from the practice of law
for three (3) years and ORDERED to RETURN the amount of One Hundred Thousand
(P100,000.00) Pesos to complainant with legal interest within thirty days from receipt of notice.
Issue
By issuing the worthless check, did Atty. Delos Santos violate Canon 1, Rule 1.01 and Canon 7,
Rule 7.03 of the Code of Professional Responsibility?
Ruling
We agree with the findings of the IBP but modify the recommended penalty.
Every lawyer is an officer of the Court. He has the duty and responsibility to maintain his good
moral character. In this regard, good moral character is not only a condition precedent relating to
his admission into the practice of law, but is a continuing imposition in order for him to maintain
his membership in the Philippine Bar.10 The Court unwaveringly demands of him to remain a
competent, honorable, and reliable individual in whom the public may repose confidence.11 Any
gross misconduct that puts his moral character in serious doubt renders him unfit to continue in
the practice of law.12
Batas Pambansa Blg. 22 has been enacted in order to safeguard the interest of the banking
system and the legitimate public checking account users.13 The gravamen of the offense defined
and punished by Batas Pambansa Blg. 22, according to Lozano v. Martinez,14 is the act of
making and issuing a worthless check, or any check that is dishonored upon its presentment for
payment and putting it in circulation; the law is designed to prohibit and altogether eliminate the
deleterious and pernicious practice of issuing checks with insufficient funds, or with no credit,
because the practice is deemed a public nuisance, a crime against public order to be abated. The
Court has observed in Lozano v. Martinez:
The effects of the issuance of a worthless check transcends the private interests of the parties
directly involved in the transaction and touches the interests of the community at large. The
mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The
harmful practice of putting valueless commercial papers in circulation, multiplied a
thousandfold, can very well pollute the channels of trade and commerce, injure the banking
system and eventually hurt the welfare of society and the public interest.15 xxx
Being a lawyer, Atty. Delos Santos was well aware of the objectives and coverage of Batas
Pambansa Blg. 22. If he did not, he was nonetheless presumed to know them, for the law was
penal in character and application. His issuance of the unfunded check involved herein
knowingly violated Batas Pambansa Blg. 22, and exhibited his indifference towards the
pernicious effect of his illegal act to public interest and public order.16 He thereby swept aside
his Lawyer’s Oath that enjoined him to support the Constitution and obey the laws. He also took
for granted the express commands of the Code of Professional Responsibility, specifically Canon
1, Rule 1.01 and Canon 7, Rule 7.03, viz:
CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF

THE LAND AND PROMOTE RESPECT FOR THE LAW AND LEGAL PROCESSES.
Rule 1.01 - A Lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND

DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR.
Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on his fitness to practice
law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit
of the legal profession.
These canons, the Court has said in Agno v. Cagatan,17 required of him as a lawyer an enduring
high sense of responsibility and good fidelity in all his dealings, thus:
The afore-cited canons emphasize the high standard of honesty and fairness expected of a lawyer
not only in the practice of the legal profession but in his personal dealings as well. A lawyer
must conduct himself with great propriety, and his behavior should be beyond reproach
anywhere and at all times. For, as officers of the courts and keepers of the public's faith, they are
burdened with the highest degree of social responsibility and are thus mandated to behave at all
times in a manner consistent with truth and honor. Likewise, the oath that lawyers swear to
impresses upon them the duty of exhibiting the highest degree of good faith, fairness and candor
in their relationships with others. Thus, lawyers may be disciplined for any conduct, whether in
their professional or in their private capacity, if such conduct renders them unfit to continue to be
officers of the court.18
That his act involved a private dealing with Ong did not matter. His being a lawyer invested him
– whether he was acting as such or in a non- professional capacity – with the obligation to
exhibit good faith, fairness and candor in his relationship with others. There is no question that a
lawyer could be disciplined not only for a malpractice in his profession, but also for any
misconduct committed outside of his professional capacity.19 His being a lawyer demanded that
he conduct himself as a person of the highest moral and professional integrity and probity in his
dealings with others.20
Moreover, in issuing the dishonored check, Atty. Delos Santos put into serious question not only
his personal integrity but also the integrity of the entire Integrated Bar. It cannot be denied that
Ong acceded to Atty. Delos Santos’ request for encashment of the check because of his complete
reliance on the nobility of the Legal Profession. The following excerpts from Ong’s testimony
bear this out, to wit:
COMM. DELA RAMA: What did you feel when you were issued a bounced check by the
respondent?
MR. ONG: Actually, the reason I even loaned him money because actually he was not even my
friend. He was just referred to me. The reason why I felt at ease to loan him money was because
the sheriff told me that abogado eto. It is his license that would be at stake that’s why I lent him
the money.21
xxxx
COMM. DELA RAMA: In other words, what you are saying is that you felt betrayed when the
lawyer issued a bounced check in your favor.
MR. ONG
Yes, Commissioner.
COMM. DELA RAMA:
Why, what is your expectation of a lawyer?
MR. ONG
:
They uphold the law, they know the law. He
should not have issued the check if you know it cannot be funded because actually I have many
lawyer friend[s] and I have always high regard for lawyers.22
Atty. Delos Santos should always be mindful of his duty to uphold the law and to be circumspect
in all his dealings with the public. Any transgression of this duty on his part would not only
diminish his reputation as a lawyer but would also erode the public’s faith in the Legal
Profession as a whole. His assuring Ong that he was in good financial standing because of his
lucrative law practice when the contrary was true manifested his intent to mislead the latter into
giving a substantial amount in exchange for his worthless post-dated check. Such actuation did
not speak well of him as a member of the Bar.
Accordingly, Atty. Delos Santos was guilty of serious misconduct, warranting appropriate
administrative sanction. Noting that the criminal complaint charging him with the violation of
Batas Pambansa Blg. 22 was already dismissed, and that he already repaid to Ong the full
amount of P100,000.00,23 both of which are treated as mitigating circumstances in his favor, we
find the recommendation of the IBP Board of Governors to suspend him from the practice of law
for a period of three years harsh. Thus, we reduce the penalty to suspension from the practice of
law to six months in order to accord with the ruling in Philippine Amusement and Gaming
Corporation v. Carandang.24
ACCORDINGLY, the Court PRONOUNCES respondent ATTY. WILLIAM F. DELOS

SANTOS GUILTY of violating the Lawyer’s Oath, and Canon 1, Rule 1.01 and Canon 7, Rule
7.03 of the Code of
Professional Responsibility, and, accordingly, SUSPENDS HIM FROM THE PRACTICE OF

LAW FOR A PERIOD OF SIX MONTHS EFFECTIVE FROM NOTICE, with a stern warning
that any similar infraction in the future will be dealt with more severely.
Let copies of this decision be furnished to the Office of the Bar Confidant to be appended to
Atty. Delos Santos' personal record as an attorney; to the Integrated Bar of the Philippines; and
to all courts in the country for their information and guidance.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
(On Leave)
Chief Justice
ANTONIO T. CARPIO*
PRESBITER0 J. VELASCO, JR.
Associate Justice
Associate Justice
(Acting Chief Justice)
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice





Associate Justice
Footnotes
* Acting Chief Justice per Special Order No. 1644 dated February 25, 2014.
1 Rollo, pp. 2-3.
2 Id. at 3.
3 Id. at 6.
4 Id. at 3.
5 Id. at 4.
6 Id. at 55-60.
7 Id. at 56.
8 Id. at 55-56.
9 Id. at 54.
10 Manaois v. Deciembre, Adm. Case No. 5364, August 20, 2008, 562 SCRA 359, 363-
364; Rural Bank of Silay, Inc. v. Pilla, Adm. Case No. 3637, January 24, 2001, 350
SCRA 138, 145; Narag v. Narag, A.C. No. 3405, June 29, 1998, 291 SCRA 451, 463.
11 Sebastian v. Bajar, A.C. No. 3731, September 7, 2007, 532 SCRA 435, 448.
12 Re: Letter Dated 21 February 2005 of Atty. Noel S. Sorreda, A.M. No. 05-3-04-SC,
July 22, 2005, 464 SCRA 32, 45; Grande v. De Silva, A.C. No. 4838, July 29, 2003, 407
SCRA 310, 313.
13 Magno v. Court of Appeals, G.R. No. 96132, June 26, 1992, 210 SCRA 471, 478.
14 G.R. No. L-63419, 18 December 1986, 146 SCRA 323, 338.
15 Id. at 340.
16 Santos-Tan v. Robiso, A.C. No. 6383, March 31, 2009, 582 SCRA 556, 564.
17 A.C. No. 4515, July 14, 2008, 558 SCRA 1.
18 Id. at 17-18
19 Philippine Amusement and Gaming Corporation v. Carandang, A.C. No. 5700,

January 30, 2006, 480 SCRA 512, 518.
20 Fernandez v. Cabrera III, A.C. No. 5623, December 11, 2003, 418 SCRA 1, 5.
21 Rollo, p. 45.
22 Id. at 47.
23 Id. at 39-43.
24 Supra note 19, at 519.

EN BANC
March 11, 2014
OCA IPI No. 12-204-CA-J
Re: VERIFIED COMPLAINT FOR DISBARMENT OF AMA LAND, INC.

(REPRESENTED BY JOSEPH B. USITA) AGAINST COURT OF APPEALS
ASSOCIATE JUSTICES HON. DANTON Q. BUESER, HON. SESINANDO E. VILLON
AND HON. RICARDO R. ROSARIO
DECISION
BERSAMIN, J.:
Unfounded administrative charges against sitting judges truly degrade their judicial office, and
interfere with the due performance of their work for the Judiciary. The complainant may be held
liable for indirect contempt of court as a means of vindicating the integrity and reputation of the
judges and the Judiciary.
AMA Land, Inc., (AMALI) brought this administrative complaint against Associate Justice
Danton Q. Bueser, Associate Justice Sesinando E. Villon and Associate Justice Ricardo R.
Rosario, all members of the Court of Appeals (CA), charging them with knowingly rendering an
unjust judgment, gross misconduct, and violation of their oaths on account of their promulgation
of the decision in C.A.-G.R. SP No. 118994 entitled Wack Wack Residents Association, Inc. v.
The Honorable Regional Trial Court of Pasig City, Branch 264, Assigned in San Juan, and AMA
Land, Inc.
Antecedents
AMALI is the owner and developer of the 37-storey condominium project located along
Epifanio Delos Santos Avenue corner Fordham Street in Wack Wack, Mandaluyong City.1 Due
to the project’s location, AMALI would have to use Fordham Street as an access road and
staging area for the construction activities. In that regard, AMALI needed the consent of the
Wack Wack Residents Association, Inc. (WWRAI). Accordingly, AMALI sent a notice to
WWRAI, which ignored the notice. Left with no option, AMALI set up a field office along
Fordham Street that it enclosed with a temporary fence. WWRAI allegedly tried to demolish the
field office and set up a fence to deny access to AMALI’s construction workers, which prompted
AMALI to file a petition for the enforcement of an easement of right of way in the Regional
Trial Court (RTC) in Pasig City. The petition, which included an application for a temporary
restraining order (TRO) and/or writ of preliminary mandatory injunction (WPMI), was docketed
as Civil Case No. 65668.2 On July 24, 1997, the RTC granted AMALI’s prayer for the WPMI.3
In the meantime, AMALI converted the condominium project into a 34-storey building of mixed
use (to be known as the AMA Residences) after AMALI’s petition for corporate rehabilitation
was approved.4
On January 26, 2010, WWRAI filed in Civil Case No. 65668 an urgent motion to set for hearing
its prayer for a TRO and/or writ of preliminary injunction (WPI) contained in its answer. The
denial of the prayer for injunction by the RTC impelled WWRAI to bring a petition for certiorari
with an application for a TRO and/or writ of preliminary injunction in the CA to enjoin the RTC
from proceeding in Civil Case No. 65668.5
After hearing, the CA issued a TRO, which prompted AMALI to file an Urgent Motion to Lift
and/or Dissolve Temporary Restraining Order and later on a Compliance and Motion for
Reconsideration.
On July 28, 2011, the CA issued a preliminary injunction and required AMALI to file its
Comment. AMALI complied and filed a Comment which also served as its motion for partial
reconsideration of the July 28, 2011 Resolution. On October 12, 2011, AMALI filed an Urgent
Motion to Resolve and to Approve Counterbond. Allegedly, these motions were left unresolved
when the CA Tenth Division, which included Associate Justices Bueser and Rosario, required
the parties to submit their respective memoranda.6
On June 14, 2012, the Special Former Tenth Division of the CA promulgated a decision granting
the petition of WWRAI.7
AMALI consequently filed a petition for review on certiorari in this Court, docketed as G.R. No.
202342, entitled AMA Land, Inc. v. Wack Wack Residents Association, Inc.8
AMALI then brought this administrative complaint, alleging that respondent Justices had
conspired with the counsels of WWRAI, namely: Atty. Archibald F. de Mata and Atty. Myra
Jennifer D. Jaud-Fetizanan, in rendering an unjust judgment. AMALI stated that the decision of
the CA had been rendered in bad faith and with conscious and deliberate intent to favor
WWRAI, and to cause grave injustice to AMALI. In thereby knowingly rendering an unjust
judgment, respondent Justices were guilty of gross misconduct, and violated Canon 1, Rule 1.01
and Canon 1, Rules 10.01 and 10.03 of the Code of Professional Responsibility, as well as
Section 27, Rule 138 of the Rules of Court.
Issue
Are the respondent Justices liable for knowingly rendering an unjust judgment and violating
Canon 1, Rule 1.01; Canon 10, Rules 10.01 and 10.03 of the Code of Professional
Responsibility; and Section 27, Rule 138 of the Rules of Court?
Ruling
The administrative complaint is bereft of merit.
In administrative proceedings, the complainant has the burden of proving the allegations of the
complaint by substantial evidence.9 Failure to do so will lead to the dismissal of the complaint
for its lack of merit. This is because an administrative charge against any official of the Judiciary
must be supported by at least substantial evidence.10 But when the charge equates to a criminal
offense, such that the judicial officer may suffer the heavy sanctions of dismissal from the
service, the showing of culpability on the part of the judicial officer should be nothing short of
proof beyond reasonable doubt, especially because the charge is penal in character.11
AMALI fell short of the requirements for establishing its charge of knowingly rendering an
unjust judgment against respondent Justices.
Knowingly rendering an unjust judgment constitutes a serious criminal offense. Article 204,
Revised Penal Code, provides that any judge who "knowingly render[s] an unjust judgment in
any case submitted to him for decision" is punished with prision mayor and perpetual absolute
disqualification. To commit the offense, the offender must be a judge who is adequately shown
to have rendered an unjust judgment, not one who merely committed an error of judgment or
taken the unpopular side of a controversial point of law.12 The term knowingly means "sure
knowledge, conscious and deliberate intention to do an injustice."13 Thus, the complainant must
not only prove beyond reasonable doubt that the judgment is patently contrary to law or not
supported by the evidence but that it was also made with deliberate intent to perpetrate an
injustice. Good faith and the absence of malice, corrupt motives or improper consideration are
sufficient defenses that will shield a judge from the charge of rendering an unjust decision.14 In
other words, the judge was motivated by hatred, revenge, greed or some other similar motive in
issuing the judgment.15 Bad faith is, therefore, the ground for liability.16 The failure of the
judge to correctly interpret the law or to properly appreciate the evidence presented does not
necessarily render him administratively liable.17
But who is to determine and declare that the judgment or final order that the judicial officer
knowingly rendered or issued was unjust? May such determination and declaration be made in
administrative investigations and proceedings like a preliminary investigation by the public
prosecutor? The answers to these queries are obvious – only a superior court acting by virtue of
either its appellate or supervisory jurisdiction over the judicial actions involved may make such
determination and declaration. Otherwise, the public prosecutor or administrative hearing officer
may be usurping a basic judicial power of review or supervision lodged by the Constitution or by
law elsewhere in the appellate court.
Moreover, AMALI’s allegations directly attacked the validity of the proceedings in the CA
through an administrative complaint. The attack in this manner reflected the pernicious practice
by disgruntled litigants and their lawyers of resorting to administrative charges against sitting
judges instead of exhausting all their available remedies. We do not tolerate the practice. In Re:
Verified Complaint of Engr. Oscar L. Ongjoco, Chairman of the Board/CEO of FH-GYMN
Multi-Purpose and Transport Service Cooperative, against Hon. Juan Q. Enriquez, Jr., Hon.
Ramon M. Bato, Jr. and Hon. Florito S. Macalino, Associate Justices, Court of Appeals,18 we
emphatically held that the filing of administrative complaints or even threats of the filing
subverted and undermined the independence of the Judiciary, to wit:
It is evident to us that Ongjoco’s objective in filing the administrative complaint was to take
respondent Justices to task for the regular performance of their sworn duty of upholding the rule
of law. He would thereby lay the groundwork for getting back at them for not favoring his
unworthy cause. Such actuations cannot be tolerated at all, for even a mere threat of
administrative investigation and prosecution made against a judge to influence or intimidate him
in his regular performance of the judicial office always subverts and undermines the
independence of the Judiciary.
We seize this occasion, therefore, to stress once again that disciplinary proceedings and criminal
actions brought against any judge in relation to the performance of his official functions are
neither complementary to nor suppletory of appropriate judicial remedies, nor a substitute for
such remedies. Any party who may feel aggrieved should resort to these remedies, and exhaust
them, instead of resorting to disciplinary proceedings and criminal actions. (Bold emphasis
supplied)
It appears that AMALI is prone to bringing charges against judicial officers who rule against it in
its cases. That impression is not at all devoid of basis.1âwphi1 The complaint herein is actually
the second one that AMALI has brought against respondent Justices in relation to the
performance of their judicial duty in the same case. In its first complaint entitled Re: Verified
Complaint of AMA Land, Inc. against Hon. Danton Q. Bueser, Hon. Sesinando E. Villon and
Hon. Ricardo R. Rosario, Associate Justices of the Court of Appeals,19 AMALI accused
respondent Justices of: (a) dishonesty and violation of Republic Act No. 3019, gross misconduct,
and knowingly rendering an unjust judgment or order, in violation of Section 8, Rule 140 of the
Rules of Court; and (b) violating provisions of the New Code of Judicial Conduct. The Court
dismissed the first complaint upon finding that it centered on the propriety of the interlocutory
orders issued by respondent Justices in C.A.-G.R. SP No. 118994. The Court appropriately
observed:
A perusal of the records of the case as well as the parties’ respective allegations disclosed that
the acts complained of relate to the validity of the proceedings before the respondent CA Justices
and the propriety of their orders in CA-G.R. SP No. 118994 which were done in the exercise of
their judicial functions. Jurisprudence is replete with cases holding that errors, if any, committed
by a judge in the exercise of his adjudicative functions cannot be corrected through
administrative proceedings, but should instead be assailed through available judicial remedies.
Disciplinary proceedings against justices do not complement, supplement or substitute judicial
remedies and, thus, cannot be pursued simultaneously with the judicial remedies accorded to
parties aggrieved by their erroneous orders or judgments.
xxxx
In this case, AMALI had already filed a petition for review on certiorari challenging the
questioned order of the respondent CA justices which is still pending final action by the Court.
Consequently, a decision on the validity of the proceedings and propriety of the orders of the
respondent CA Justices in this administrative proceeding would be premature. Besides, even if
the subject decision or portions thereof turn out to be erroneous, administrative liability will only
attach upon proof that the actions of the respondent CA Justices were motivated by bad faith,
dishonesty or hatred, or attended by fraud or corruption, which were not sufficiently shown to
exist in this case. Neither was bias as well as partiality established. Acts or conduct of the judge
clearly indicative of arbitrariness or prejudice must be clearly shown before he can be branded
the stigma of being biased and partial. In the same vein, bad faith or malice cannot be inferred
simply because the judgment or order is adverse to a party. Here, other than AMALI’s bare and
self-serving claim that respondent CA Justices "conspired with WWRAI’s counsel in knowingly
and in bad faith rendering an unjust judgment and in committing xxx other misconduct," no act
clearly indicative of bias and partiality was alleged except for the claim that respondent CA
Justices misapplied the law and jurisprudence. Thus, the presumption that the respondent judge
has regularly performed his duties shall prevail. Moreover, the matters raised are best addressed
to the evaluation of the Court in the resolution of AMALI’s petition for review on certiorari.
Finally, resort to administrative disciplinary action prior to the final resolution of the judicial
issues involved constitutes an abuse of court processes that serves to disrupt rather than promote
the orderly administration of justice and further clog the courts’ dockets. Those who seek relief
from the courts must not be allowed to ignore basic legal rules and abuse of court processes in
their efforts to vindicate their rights. (Bold emphasis supplied)
This administrative case is no different from the first. They are identical, with the complaint
herein containing only a few but insignificant changes in relation to the first. Both were intended
to intimidate or to disparage respondent Justices in the performance of their judicial functions.
The filing of the meritless administrative complaints by AMALI was not only repulsive, but also
an outright disrespect of the authority of the CA and of this Court. Unfounded administrative
charges against judges truly degrade the judicial office, and interfere with the due performance
of their work for the Judiciary. Although the Court did not then deem fit to hold in the first
administrative case AMALI or its representative personally responsible for the unfounded
charges brought against respondent Justices, it is now time, proper and imperative to do so in
order to uphold the dignity and reputation of respondent Justices, of the CA itself, and of the rest
of the Judiciary. AMALI and its representatives have thereby demonstrated their penchant for
harassment of the judges who did not do its bidding, and they have not stopped doing so even if
the latter were sitting judges. To tolerate the actuations of AMALI and its representatives would
be to reward them with undeserved impunity for an obviously wrong attitude towards the Court
and its judicial officers.
Indeed, no judicial officer should have to fear or apprehend being held to account or to answer
for performing his judicial functions and office because such performance is a matter of public
duty and responsibility. The office and duty to render and administer justice area function of
sovereignty, and should not be simply taken for granted. As a recognized commentator on public
offices and public officers has written:20
It is a general principle, abundantly sustained by authority and reason, that no civil action can be
sustained against a judicial officer for the recovery of damages by one claiming to have been
injured by the officer’s judicial action within his jurisdiction. From the very nature of the case,
the officer is called upon by law to exercise his judgment in the matter, and the law holds his
duty to the individual to be performed when he has exercised it, however erroneous or disastrous
in its consequences it may appear either to the party or to others.
A number of reasons, any one of them sufficient, have been advanced in support of this rule.
Thus it is said of the judge: "His doing justice as between particular individuals, when they have
a controversy before him, is not the end and object which were in view when his court was
created, and he was selected to preside over or sit in it. Courts are created on public grounds;
they are to do justice as between suitors, to the end that peace and order may prevail in the
political society, and that rights may be protected and preserved. The duty is public, and the end
to be accomplished is public; the individual advantage or loss results from the proper and
thorough or improper and imperfect performance of a duty for which his controversy is only the
occasion. The judge performs his duty to the public by doing justice between individuals, or, if
he fails to do justice as between individuals, he may be called to account by the State in such
form and before such tribunal as the law may have provided. But as the duty neglected is not a
duty to the individual, civil redress, as for an individual injury, is not admissible."21
Accordingly, we now demand that AMALI’s authorized representative, Joseph B. Usita, its
Senior Assistant Vice President, and the Members of the Board of Directors of AMALI who had
authorized Usita to file the present complaint, to show cause in writing why they should not be
held in indirect contempt of court for bringing the unfounded and baseless charges against
respondent Justices not only once but twice. To be clear, the filing of unfounded and baseless
administrative charges against sitting judicial officers may constitute indirect contempt under
Section 3(d), Rule 71 of the Rules of Court, to wit:
Section 3. Indirect contempt to be punished after charge and hearing. — After a charge in writing
has been filed, and an opportunity given to the respondent to comment thereon within such
period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any
of the following acts may be punished for indirect contempt:
(a)Misbehavior of an officer of a court in the performance of his official duties or in his

official transactions;
(b)Disobedience of or resistance to a lawful writ, process, order, or judgment of a court,

including the act of a person who, after being dispossessed or ejected from any real
property by the judgment or process of any court of competent jurisdiction, enters or
attempts or induces another to enter into or upon such real property, for the purpose of
executing acts of ownership or possession, or in any manner disturbs the possession given
to the person adjudged to be entitled thereto;
(c)Any abuse of or any unlawful interference with the processes or proceedings of a court
not constituting direct contempt under section 1 of this Rule;
(d)Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade
the administration of justice;
(e)Assuming to be an attorney or an officer of a court, and acting as such without

authority;
(f)Failure to obey a subpoena duly served;
(g)The rescue, or attempted rescue, of a person or property in the custody of an officer by

virtue of an order or process of a court held by him.
But nothing in this section shall be so construed as to prevent the court from issuing process to
bring the respondent into court, or from holding him in custody pending such proceedings. (3a)
Anent indirect contempt, the Court said in Lorenzo Shipping Corporation v. Distribution
Management Association of the Philippines:22
Contempt of court has been defined as a willful disregard or disobedience of a public authority.
In its broad sense, contempt is a disregard of, or disobedience to, the rules or orders of a
legislative or judicial body or an interruption of its proceedings by disorderly behavior or
insolent language in its presence or so near thereto as to disturb its proceedings or to impair the
respect due to such a body. In its restricted and more usual sense, contempt comprehends a
despising of the authority, justice, or dignity of a court. The phrase contempt of court is generic,
embracing within its legal signification a variety of different acts.
The power to punish for contempt is inherent in all courts, and need not be specifically granted
by statute. It lies at the core of the administration of a judicial system. Indeed, there ought to be
no question that courts have the power by virtue of their very creation to impose silence, respect,
and decorum in their presence, submission to their lawful mandates, and to preserve themselves
and their officers from the approach and insults of pollution. The power to punish for contempt
essentially exists for the preservation of order in judicial proceedings and for the enforcement of
judgments, orders, and mandates of the courts, and, consequently, for the due administration of
justice. The reason behind the power to punish for contempt is that respect of the courts
guarantees the stability of their institution; without such guarantee, the institution of the courts
would be resting on a very shaky foundation.23 (Bold emphasis supplied)
ACCORDINGLY, the Court (a) DISMISSES the administrative complaint against Associate
Justice Danton Q. Bueser, Associate Justice Sesinando E. Villon and Associate Justice Ricardo
R. Rosario for its utter lack of merit; and (b) ORDERS Joseph B. Usita, the Senior Assistant
Vice President of AMA Land, Inc., and all the members of the Board of Directors of AMA Land,
Inc. who had authorized Usita to bring the administrative complaint against respondent Associate
Justices to show cause in writing within 10 days from notice why they should not be punished
for indirect contempt of court for degrading the judicial office of respondent Associate Justices,
and for interfering with the due performance of their work for the Judiciary.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice
ANTONIO T. CARPIO PRESBITERO . VELASCO, JR.

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice




ESTELA M.PERLAS-BERNABE
LEONEN
Associate Justice
Associate Justice
Footnotes
1 Rollo, p. 5.
2 Id. at 7-8.
3 Id. at 176-183.
4 Id. at 11.
5 Id. at 12-13.
6 Id. at 13-15.
7 Id. at 57-71.
8 Id. at 546-588.
9 Datuin, Jr. v. Soriano, A.M. No. RTJ-01-1640, October 15, 2002, 391 SCRA 1, 5.
10 Santos v. Tanciongco, A.M. No. MTJ-06-1631, September 30, 2008, 567 SCRA 134,
138; Kilat v. Macias, A.M. No. RTJ-05-1960, October 25, 2005, 464 SCRA 101, 110.
11 See Office of the Court Administrator v. Pascual, Adm. Mat. No. MTJ-93-783, July
29, 1996, 259 SCRA 604, 612-613; Raquiza v. Castañeda, Jr., January 31, 1978, 81
SCRA 235, 224.
12 Regalado, Criminal Law Conspectus, First Edition (2000), National Book Store, Inc.,
p. 409.
13 Guevara, Commentaries on the Revised Penal Code of the Philippines, Fourth Edition
(1946), Filipino Book Dealers’ Association, Manila, p. 418.
14 Basa Air Base Savings & Loan Association, Inc. v. Pimentel, Jr., A.M. No. RTJ-01-
1648, August 22, 2002, 387 SCRA 542, 548.
15 Guerrero v. Villamor, A.M. No. RTJ-90-617, September 25, 1998, 296 SCRA 88, 98.
16 Guevara, supra at 418.
17 Sacmar v. Reyes-Carpio, A.M. No. RTJ-03-1766, March 28, 2003, 400 SCRA 32, 35.
18 A.M. OCA IPI No. 11-184-CA-J, January 31, 2012, 664 SCRA 465.
19 A.M. OCA IPI No. 12-202-CA-J, January 15, 2013, 688 SCRA 507.
20 Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers, 1890,
Callaghan and Co., Chicago, §619 (bold underscoring supplied for emphasis).
21 At §619; the quotation is from Cooley on Torts (1st Edition) 380 (bold underscoring
supplied for emphasis).
22 G.R. No. 155849, August 31, 2011, 656 SCRA 331.
23 Id. at 342-344.
SUPREME COURT
Manila
EN BANC
A.M. No. RTJ-08-2151 March 11, 2014
OFFICE OF THE COURT ADMINISTRATOR, Petitioner,

vs.
JUDGE EDWIN C. LARIDA, JR., RTC, Branch 18, Tagaytay City, Respondent.
DECISION
BERSAMIN, J.:
A mysterious early Sunday morning fire in the records room of a courthouse set off a series of
red flags pointing to anomalous acts allegedly committed by its inhabitants. It led to the
resignation of a clerk of court after he had formally denounced the Presiding Judge for
committing various anomalies and irregularities that are now the subjects of this administrative
case against the Presiding Judge.
Antecedents
At around 7:50 a.m. on October 12, 2008, a Sunday, a fire occurred at the records room of
Branch 18 of the Regional Trial Court (RTC) in Tagaytay City. The fire, although declared under
control by 8:10 a.m., was extinguished only ten minutes later. Recovered from the records room
were a 1.5 liter plastic bottle containing gasoline, a container of glue, and a candle.1 Atty.
Stanlee D.C. Calma, the Branch Clerk of Court of Branch 18, immediately reported the fire as a
clear case of arson to the Office of the Court Administrator (OCA).2 On October 13, 2008, then
Court Administrator Jose Portugal Perez, now a Member of the Court, formed and dispatched an
investigative team consisting of lawyers from the OCA to conduct an investigation upon the
instructions of Chief Justice Reynato S. Puno. The investigative team started interviewing the
personnel of Branch 18, including Atty. Calma, in the afternoon of October 13, 2008, and their
declarations aided the review starting on October 14, 2008 of the records of the cases decided
and pending in Branch 18.
In the course of its investigation, the investigative team uncovered anomalies supposedly
committed by Presiding Judge Edwin G. Larida (Judge Larida), namely:
1. violation of Administrative Circular No. 28-2008, in authorizing the detail of locally-

funded employees to his court without obtaining permission from the Supreme Court, and
in allowing them to take custody of court records and to draft court orders and decisions
for him;
2. knowingly allowing detailed employees Jason Marticio, Larry Laggui and Napoleon
Cabanizas to demand commissions from bonding companies in exchange for the issuance
of release orders;
3. extorting money from detained accused Raymund Wang, with the help of Jason
Marticio and Larry Laggui;
4. defying the directive of the Supreme Court in Administrative Order No. 132-2008,
dated 15 September 2008, to stop from trying and hearing cases and to instead, decide
cases already submitted for decision;
5. releasing the accused on bail in Criminal Case No. TG-4382-03 for Violation of
Section 8, Article II, RA 9165 (Manufacturing or Engaging in the Manufacture of, in a
Clandestine Laboratory, Large Quantity of Metamphetamine Hydrochloride, Commonly
Known as Shabu) despite their positive identification as the perpetrators of the crime;
6. granting a motion to quash the information in Criminal Case No. TG-5307-06 without
a case record and without requiring a comment from the prosecutor; and
7. granting a petition for the issuance of owner's duplicate copies of various titles in LRC
case No. TG-06-1183 under questionable circumstances.3
Upon recommendation of the OCA, and on the basis of the investigation report, the Court
resolved on November 18, 2008 to:
a) x x x
b) DIRECT Judge Larida to cease and desist from hearing and deciding cases at RTC,
Branch 18, Tagaytay City;
c) DESIGNATE Judge Larida as Assting Judge of RTC, Branch 74, Malabon City to
decide inherited cases submitted for decision and already beyond the reglementary period
to decide in the aforesaid court;
d) DIRECT Messrs. Jayson A. Marticio and Larry G. Laggui to report back to the City
Government of Tagaytay, effective immediately;
e) PROHIBIT Messrs. Marticio, Laggui and Napoleon Cabanizas, Jr., from entering the
premises of RTC, Branch 18, Tagaytay City;
xxxx
i) REVOKE the designation of Judge Emma S. Young, RTC, Branch 36, Manila, as Assisting
Judge of RTC, Branch 18, Tagaytay City, pursuant to Administrative Order No. 132-2008 dated
September 15, 2008, and instead, DESIGNATE Judge Young as Acting Presiding Judge thereat
effective immediately and to continue until further orders from the Court. x x x
The Court further Resolved to REFER the instant administrative complaint against Judge Larida
to (a) the Presiding Justice of the Court of Appeals for RAFFLE among the justices thereat
within five (5) days from notice hereof and (b) the Court of Appeals Justice to whom the
complaint will be raffled for INVESTIGATION, REPORT AND RECOMMENDATION
thereon within sixty (60) days from the date of the raffle.4
In the meantime, Jayson A. Marticio, a locally-funded employee formerly detailed in Branch 18,
and who was among those barred by the Court from entering the RTC’s premises in the
aftermath of the arson incident, presented a letter-complaint dated October 20, 20085 whereby he
denounced the following anomalies and irregularities committed by the RTC staff of Branch 18,
to wit:
1. That the court staff are practicing the "duty system" wherein a court employee will be
assigned to report early in order to punch in their daily time cards;
2. That a certain "Rommel" and other court employees were asking commissions from
bondsmen, specifically, the Monarch Insurance Company which he avers has connections
with the Office of the Clerk of Court;
3. That Clerk of Court Stanlee Calma and Legal Researcher Diana Ruiz are soliciting
monetary considerations from litigants in exchange for fast and favorable decisions;
4. That Clerk of Court Calma received a huge amount of money and a Pajero from a
certain "Norma" in exchange for a favorable decision in an election protest; and
5. That there are court employees who seek his assistance in drafting decisions/orders and
use the same to ask for considerations from litigants.6
Marticio’s letter-complaint was consolidated with A.M. RTJ-08-2151, the case involving Judge
Larida.7 The consolidated cases were assigned to Associate Justice Ricardo R. Rosario of the
Court of Appeals (CA) for investigation, report and recommendation.
On February 20, 2009, Investigating Justice Rosario re-set the pre-trial of the cases to March 5,
2009, with a specific order for Marticio to personally appear on that date.8 On March 5, 2009,
Marticio did not appear at the pre-trial. The Process Server’s Return showed,9 however, that the
order for Marticio to personally appear before the Investigating Justice was not served on him
because he had meanwhile ceased to be connected with the City Government of Tagaytay City,
and could not also be found at his last known address. Whereupon, the staff members of Branch
18 whom Marticio had denounced sought the immediate dismissal of his letter complaint.10
Deeming Marticio’s failure to inform the Investigating Justice and the OCA of his whereabouts
as a manifestation of his lack of interest to pursue the matter, the Investigating Justice
recommended the dismissal of his letter-complaint.11
The representatives of the OCA and Judge Larida appeared before the Investigating Justice and
presented their evidence.
The Investigating Justice thereafter submitted a report on his findings to the Court, and
recommended as follows:
1. for failing to strictly comply with the provisions of Administrative Circular No. 28-
2008, it is recommended that respondent Judge Edwin G. Larida, Jr. be STERNLY
WARNED that the commission of a similar act will be dealt with more severely;
2. for failing to supervise and control his subordinates diligently, it is recommended that
respondent Judge Edwin G. Larida, Jr. be REPRIMANDED with warning that a
commission of a similar act will be dealt with more severely;
3. for immediately granting Jayson Espiritu's motion to quash in Criminal Case No. TG-
5307-06 without giving the prosecution a chance to comment thereon or file an
opposition thereto, it is recommended that respondent Judge Edwin G. Larida, Jr. be
STERNLY WARNED that a repetition of a similar act will warrant a more severe
penalty.
There being no substantial evidence to support the charges of –
a) extorting money from detained accused Raymund Wang;
b) defying the directive of Supreme Court in Administrative Order No. 132-2008;
c) improperly granting bail in Criminal Case No. TG-4382-03;
d) receiving a bribe in exchange for granting Jayson Espiritu's motion to quash the
information in Criminal Case No. TG-5307-06;
e) granting a petition for the issuance of owner's duplicate copies of various titles in LRC
Case No. TG-06-1183 under questionable circumstances; and
f) involvement in the fire that razed RTC, Branch 18, Tagaytay City;
it is recommended that the foregoing charges be DISMISSED and respondent Judge Edwin G.
Larida, Jr., be ABSOLVED of liability for the same.12
Ruling
The Court partly adopts the findings and recommendations of the Investigating Justice.
1.
Violation of Administrative Circular No. 28-2008 by authorizing the detail of locally-funded

employees to Branch 18 without obtaining permission from the Court, and by allowing them to
take custody of court records and to draft court orders and rulings for him Administrative
Circular No. 28-2008 dated March 11, 2008 (Guidelines in the Detail of Locally-Funded
Employees to the Lower Courts)13 relevantly stated as follows:
The Presiding Judge/Executive Judge shall submit to the SC through the OCA, within one (1)
month from receipt of this administrative circular, an inventory of all locally-funded employees
detailed in their respective court branches including the OCC, specifying their names, position
titles, assigned duties and duration of the detail. In addition, the Presiding Judge/Executive Judge
shall regularly review the necessity for such details as well as the performance of the locally-
funded employees, and recommend to the SC through the OCA the revocation of the detail for
those whose services are no longer necessary in the lower courts or those with unsatisfactory or
poor performance.
As of October 14, 2008, the locally-funded employees detailed in Branch 18 were Ofelia
Parasdas, Myrna Lontoc, Jayson Marticio, Larry Laggui and Jaime Apaga.14 However, Judge
Larida did not submit or cause to be submitted to the Court within one month from receipt of
Administrative Circular No. 28-2008 an inventory of all locally-funded employees detailed in
Branch 18.
Atty. Calma claimed further that Judge Larida had allowed Marticio to draft orders and decisions
for Branch 18 in contravention of paragraph 3 of Administrative Circular No. 28-2008,15 viz:
Considering the confidentiality of court records and proceedings, locally-funded employees shall
simply assist in the performance of clerical works, such as receiving of letters and other
communications for the office concerned, typing of address in envelopes for mailing, typing of
certificate of appearance, and typing of monthly reports. They shall not be given duties involving
custody of court records, implementation of judicial processes, and such other duties involving
court proceedings. However, they may perform functions appertaining to that of a messenger,
janitor and driver, if these positions are provided in the plantilla of the Local Government Unit
(LGU).16
To support Atty. Calma’s claim, the OCA presented copies of the court orders drafted by
Marticio in the period from February 4 to February 15, 2008 bearing Marticio’s initials and
signatures on which Judge Larida had either written the word "Finalize" or signed in other
instances.17
Likewise, Atty. Calma attested that Judge Larida had allowed Laggui to handle confidential
court records in violation also of paragraph 3 of Administrative Circular No. 28-2008.18
In his judicial affidavit, Judge Larida asserted that he had tasked Atty. Calma to make and send
to the Court the inventory of the detailed locally-funded employees, but the latter did not
comply.19 He denied that Marticio had continued drafting court orders after the effectivity of
Administrative Circular No. 28-2008 on March 11, 2008, because Marticio had been limited to
doing legal research afterwards.20 He admitted that Laggui had handled court records at his
behest, but insisted that such handling had been limited to the physical carrying of records
between his chambers and the staff room for only a fleeting moment.21
The Investigating Justice rendered the following evaluation of the charges and the corresponding
explanations of Judge Larida, to wit:
Based on the foregoing evidence, this Investigating Justice finds that although respondent Judge
failed to comply with the submission of an inventory of locally-funded personnel detailed to his
office, pursuant to Administrative Circular No. 28-2008, it cannot be said that such failure was
entirely his fault.
In the first place, the preparation of such inventory is an administrative function that properly
pertains to the Branch Clerk of Court, Atty. Calma. Since it was Atty. Calma who first read
about Administrative Circular No. 28-2008 in the newspaper and even brought the same to the
attention of respondent Judge, he should have prepared the required inventory for respondent
Judge's signature. The record is bereft of any evidence or allegation that despite a prepared
inventory ready for his signature, respondent Judge willfully refused to sign and submit the same
to the Supreme Court.
Second, aside from the orders prepared by Jayson Marticio between 4 and 15 February 2008,
there is no showing that he continued to draft court orders after the effectivity of Administrative
Circular No. 28-2008 on 11 March 2008.
Third, Larry Laggui’s act of physically carrying court records to and from respondent Judge’s
chambers and the staff room appears to be a messengerial activity allowed by Administrative
Circular No. 28-2008. Laggui can hardly be said to have exercised "custody" over the court
records since he had no participation in their safekeeping.
Nevertheless, respondent Judge’s act of not submitting the required inventory, allowing detailed
employees to draft court orders and/or have access to court records evinces laxity in respondent
Judge’s control and supervision over his office. A judge is tasked with the administrative
supervision over his personnel and he should always see to it that his orders are promptly
enforced and that case records are properly stored. It is, therefore, incumbent upon the judge to
see to it that the personnel of the court perform their duties well and to call the attention of the
clerk of court when they fail to do so.
Having failed to strictly comply with the provisions of Administrative Circular No. 28-2008, it is
recommended that respondent Judge be STERNLY WARNED that the commission of a similar
act will be dealt with more severely.22
We find Judge Larida to have committed several lapses, specifically the non-submission to the
Court of the required inventory of locally-funded employees, and his allowing Marticio to draft
court orders. Such lapses manifested a wrong attitude towards administrative rules and
regulations issued for the governance and administration of the lower courts, to the extent of
disregarding them, as well as a laxity in the control of his Branch and in the supervision of its
functioning staff.
The omission to submit the inventory should not be blamed on Atty. Calma as the Branch Clerk
of Court.1avvphi1 Although it was very likely that Judge Larida had tasked Atty. Calma to do
and submit the inventory in his behalf, Judge Larida as the Presiding Judge himself remained to
be the officer directly burdened with the responsibility for doing so. The basis for saying so is the
text of Administrative Circular No. 28-2008 itself. Judge Larida could neither shirk from, nor
avoid, nor evade the responsibility of submitting the inventory within one month from notice
under any guise or reason. This meant that if Atty. Calma did not comply with his instruction,
Judge Larida should have himself assumed the responsibility of compliance. With
Administrative Circular No. 28-2008 being effective on March 11, 2008 yet, his failure to send
the inventory as late as October 2008 definitely established his non-compliance with its directive.
Paragraph 3 of Administrative Circular No. 28-2008 also confined the service of locally-funded
employees to giving assistance in the performance of clerical works, like receiving letters and
other communications for the Branch, typing of addresses on envelopes for mailing, typing of
certificates of appearance, and typing of monthly reports. Such employees were not to have the
custody of court records, or to have anything to do with the implementation of judicial processes,
or to discharge other duties involving court proceedings beyond the merely clerical. The
prohibition was intended to preserve the confidentiality of court records and proceedings,
because such employees were not employed in the Judiciary.
Judge Larida admitted in his judicial affidavit that Marticio had drafted court orders and had
done legal research in Branch 18. Under the circumstances, his claim of discontinuing Marticio’s
drafting activities upon the effectivity of Administrative Circular No. 28-2008 on March 11,
2008, assuming it to be true, did not diminish or excuse his violation if he still permitted
Marticio to do legal research work thereafter. Legal research was an activity that was more than
clerical. Clearly, Judge Larida did not comply with Administrative Circular No. 28-2008, which
was a less serious charge under Section 9 of Rule 140, Rules of Court, as amended.23
Section 11 of Rule 140, Rules of Court, as amended, delineates the sanctions to be meted out for
a less serious charge, as follows:
Section 11. Sanctions. – x x x
xxxx
B. If the respondent is guilty of a less serious charge, any of the following sanctions shall be
imposed:
1. Suspension from office without salary and other benefits for not less than one (1) nor
more than three (3) months; or
2. A fine of more than P10,000.00 but not exceeding P20,000.00.
xxxx
However, Judge Larida’s unrebutted explanation that he had instructed Atty. Calma to prepare
and send the inventory, while not entirely absolving him, evinced his intention to comply. Trial
judges have usually delegated various reporting tasks to their clerks of court or other members of
their staff in order to gain more time for their adjudications and other important written work.
We should presume, therefore, that malice had not motivated his non-compliance with
Administrative Circular No. 28-2008. His explanation to that effect merited treating his lack of
malice as a mitigating circumstance in his favor.
2.
Knowingly allowing detailed employees

to solicit commissions from bonding companies
Regarding this charge, the Investigating Justice found thusly:
The OCA next charges respondent Judge with having allowed detailed employees, Jayson
Marticio and Larry Laggui, and respondent Judge's personal driver, Napoleon Cabanizas, Jr., to
solicit commissions from bonding and surety companies.
According to the judicial affidavit of former Branch Clerk of Court, Atty. Stanlee D.C. Calma,
the manager of Monarch Insurance Company, Inc. complained to him that despite the proper
filing of the bail bond policy and the payment of legal fees, there would be a delay of up to 3
days in the issuance of release orders for the accused unless the bonding company gave the
"commission" solicited by Jayson Marticio, Larry Laggui and Napoleon Cabanizas, Jr. Monarch
Insurance Insurance and other bonding companies supposedly told Atty. Calma that Jayson
Marticio, Larry Laggui and Napoleon Cabanizas, Jr. solicited "commissions" ranging from
P500.00 up to 2% of the amount of bail imposed.
By way of illustration, the OCA presented Criminal Case No. TG-5955-08 entitled People vs.
Benito Bobis. In said case, Monarch Insurance posted the bail bond on 17 June 2008, respondent
Judge signed the release order of the accused on 18 June 2008, but the release order was issued
only on 20 June 2008.
In accordance with his duties as Branch Clerk of Court, Atty. Calma reported the improper
solicitation to respondent Judge, who allegedly remarked, "Sabi ko nga sa kanila mag 'lie low
muna."
Thereafter, respondent Judge confronted Jayson Marticio, Larry Laggui and Napoleon
Cabanizas, Jr. in the presence of the representative of Monarch Insurance and told them to stop
asking for commissions. However, according to Atty. Calma, what respondent Judge really said
was that Marticio et al. should refrain from demanding "commissions" and it was up to the
bonding companies to give them any amount.24
Based on the foregoing, Judge Larida was not unaware of the solicitations by Marticio, Laggui
and Cabanizas from the complaining bonding company. The solicitations were surely irregular
and improper activities undertaken by persons visibly working for the courts. Considering that
such activities were committed with his knowledge, Judge Larida should have done more than
merely confronting them in the presence of the representative of the complaining bonding
company, and then and there merely telling them to stop the solicitations. He should have instead
immediately caused or called for their investigation and, if the evidence warranted, seen to their
proper criminal prosecution. The firmer action by him would have avoided the undesirable
impression that he had perversely acquiesced to their activities. He thus contravened the Code of
Judicial Conduct, which imposed on him the duty to take or initiate appropriate disciplinary
measures against court personnel for unprofessional conduct of which he would have become
aware, to wit:
Rule 3.10 A judge should take or initiate appropriate disciplinary measures against lawyers or
court personnel for unprofessional conduct of which the judge may have become aware.
Accordingly, Judge Larida was guilty of unbecoming conduct, a light charge under Section 10,
Rule 140 of the Rules of Court, as amended.25
3.
Charge of soliciting money from the accused

in Criminal Case No. TG-2969-98.
On this charge, the Investigating Justice found and recommended as follows:
In Criminal Case No. TG-2969-98, the accused, Raymund Wang, was charged with selling
275.9665 grams of shabu. According to former Branch Clerk of Court, Atty. Calma, a certain
Necita Ramos (kumare of Raymund Wang) called him up to ask if there was already a decision
in the case. Further, Necita Ramos informed Atty. Calma that a certain "Jake" or "James" had
visited Wang in the Trece Martirez Provincial Jail to ask P100,000.00 allegedly "pang birthday
ni Judge." Wang gave "Jake" or "James" the cellphone number of Necita Ramos and the two
purportedly negotiated the amount down to P50,000.00. However, Necita Ramos did not pay the
amount solicited.
After receiving the information, Atty. Calma supposedly informed respondent Judge that certain
people might be using his name but the latter only said that the problem is that people are
accusing others but are afraid to show up.
Thereafter, Atty. Calma did his own investigation and found out that the cellphone number
calling Necita Ramos belonged to Jayson Marticio. Armed with this information, Atty. Calma
and Necita Ramos went to the Office of the City Prosecutor. However, no statements were taken
and no action was done. Upon verification by the audit team of the OCA, the Office of the City
Prosecutor opined that the suspicion of Atty. Calma and Necita Ramos would not prosper since
their bases were all hearsay.
For his part, respondent Judge denied that Atty. Calma informed him of this incident. In his
Judicial Affidavit, respondent Judge averred that he had asked his legal researcher, Diana Ruiz,
to prepare a digest of the case but she prepared, instead a decision acquitting Wang. This
allegedly triggered a suspicion in respondent Judge that Diana Ruiz and Atty. Calma were
selectively preparing decisions and placing them inside his chambers, but before he could
investigate, a fire gutted the court.
Based on the foregoing testimonies on record, it is apparent that the charge against respondent
Judge of soliciting money from accused Wang has not been proved. Apart from the hearsay
testimony of Atty. Calma, there is no legal or factual basis to conclude that "James" or "Jake" is
actually Jayson Marticio and that "James" or "Jake" solicited money from Wang with the
authority of respondent Judge. Therefore, it is recommended that this charge against respondent
Judge be DISMISSED.26
We adopt the findings and recommendation of the Investigating Justice, and dismiss the charge
for lack of evidence proving that Judge Larida solicited a bribe from the accused in Criminal
Case No. TG-2969-98.
It is truly proper to emphasize at this point that a charge of bribery against a judge is easy to
concoct and difficult to disprove; hence, the Court always demands that the complainant present
a panoply of evidence in support of the accusation.27 A mere affidavit attesting that a judge
demanded a bribe in exchange for the exoneration of an accused being tried before him is not
sufficient. In order that an accusation of this nature is not to be considered a fairy tale, competent
and reliable evidence other than the testimony of a lone witness needs to be adduced. Every
administrative complaint levelled against a sitting judge must be examined with a discriminating
eye, therefore, because its consequential effects are by their nature highly penal, to the extent that
the respondent judge may face the sanction of dismissal from the service. Indeed, no judge
should be disciplined for misconduct unless the evidence against him is competent and
sufficient.28 Accordingly, the Court rightfully rejects any imputation of judicial misconduct in
the absence of sufficient proof to sustain it.
4.
Defying Administrative Order No. 132-2008
In Administrative Order No. 132-2008, promulgated on September 15, 2008, the Court directed
Judge Larida: (1) to cease and desist from trying cases; (2) to concentrate on deciding the cases
submitted for decision, whether before him or before his predecessors; and (3) to give priority to
cases submitted for decision for more than five years already. The administrative order
designated Judge Emma S. Young as the Assisting Judge for Branch 18, with authority to
conduct hearings.
The OCA charged Judge Larida with wilfully violating Administrative Order No. 132-2008 by
antedating several orders in order to anticipate or circumvent the effectivity of the administrative
order.
Anent this charge, the Investigating Justice has reported:
In his Judicial Affidavit, former Branch Clerk of Court, Atty. Calma, accused respondent Judge
of continuing to issue interlocutory orders in certain cases even after the effectivity of
Administrative Order No. 132-2008 on 15 September 2008. Atty. Calma’s testimony is
supported by the Judicial Affidavit of civil docket clerk, Anita Goboy. Together, they enumerate
the orders issued by respondent Judge allegedly in violation of the Administrative Order, to wit:
1. Order dated 15 August 2008, granting the motions to consolidate and set for pre-trial
Civil Case Nos. TG-07-2588 entitled Tagaytay Properties & Holdings Corp. vs. Sps.
Pascua, TG-07-2589 entitled Tagaytay Properties & Holdings Corp. vs dela Vega; TG-
07-2590 entitled Tagaytay Properties & Holdings Corp. vs. Sps. Catolico; and TG-07-
2592 entitled Tagaytay Properties & Holdings Corp. vs. Sps. Mirandilla; but denying
consolidation of TG-07-2591 entitled Tagaytay Properties & Holdings Corp. vs. Sps.
Lomerio, Sr. with said cases;
2. Order, dated 15 September 2008, granting Urgent Ex-Parte Motion (to resolve motion
to cancel notice of lis pendens) in Civil Case No. TG-08-2743 entitled Osato-Agro
Industrial Development Corporation vs. AB Capital & Investment Corporation;
3. Order, dated 18 September 2008, granting plaintiff's prayer for the issuance of a writ of
preliminary injunction in SP No. TG-05-2519 entitled Metro Alliance vs. Phil. Trust Co.;
and,
4. Order, dated 19 September 2008, denying defendant's motion to dismiss in SCA-TG-

08-2593 entitled Tagaytay Resort Development Corporation vs. Nazareno.
It is Atty. Calma’s conclusion that said orders were intentionally ante-dated by respondent Judge
based on the fact that the latter, through Larry Laggui, gave such orders to civil docket clerk
Anita Goboy only on 26 September 2008 although they all appear to have been signed or
promulgated on earlier dates, as above-enumerated. Since Administrative Order No. 132-2008
was already in effect by then, Atty. Calma reasoned that the sole purpose of ante-dating the
orders could only be the circumvention of said Administrative Order.
For his part, respondent Judge declared that he signed the orders in question on the dates
indicated thereon and released them to the civil docket clerk on the same day. Respondent Judge,
thus, was surprised to find out that said orders were all uniformly released by Larry Laggui to the
civil docket clerk only on 26 September 2008. In any event, respondent Judge pointed out that
since the civil docket clerk had brought the matter to Atty. Calma's attention, the latter-being
aware of the effectivity of Administrative Order No. 132-2008—should have informed him
about it and stopped the promulgation on said date to avoid a violation of the Administrative
Order.29
We declare that the interlocutory orders concerned were signed on the dates indicated therein.
The claim of Atty. Calma and Anita Goboy to the effect that the foregoing orders had been
antedated to circumvent the mandate of Administrative Order No.132-200 was improbable in
light of the following relevant observations of the Investigating Justice, viz:
x x x. If it were true that Atty. Calma believed that their release on a date different from the date
of their signing amounted to an anomaly, then he should have immediately brought the same to
the attention of the presiding Judge. Atty. Calma’s act of instructing civil docket clerk Anita
Goboy to merely indicate at the back of said orders the date when she actually received them
evinces a certain degree of malice incongruent with his key and noble position in the court.30
It is worth noting that only two of the affected orders were issued after the effectivity of
Administrative Order No. 132-2008, to wit:
1. the Order, dated 18 September 2008, granting plaintiff's prayer for the issuance of a
writ of preliminary injunction in SP No. TG-05-2519 entitled Metro Alliance vs. Phil
Trust Co.; and
2. the Order, dated 19 September 2008, denying private defendant's motion to dismiss in
SCA-TG-08-2593 entitled Tagaytay Resort Development Corporation vs. Nazareno.31
The two orders were issued by Judge Larida two and three days after the effectivity of
Administrative Order No. 132-2008. Even if the administrative order had taken effect
immediately, the time when he acquired actual notice of Administrative Order No. 132-2008 was
not shown. On the other hand, that our administrative circulars and issuances take time to reach
the lower courts is a matter proper for judicial notice. As such, his intent to violate or circumvent
Administrative Order No. 132-2008 was not proved.
Moreover, the Investigating Justice’s following observations are cogent, to wit:
According to the Memorandum submitted by the OCA to the Hon. Chief Justice Reynato S.
Puno, "the administrative order was issued in view of the 139 cases submitted for decision in
RTC, Branch 18, Tagaytay City which are already beyond the reglementary period to decide as
reflected in the monthly report of cases submitted by the aforesaid court for the month of April
2008."
Given the purpose of Administrative Order No. 132-2008, it would appear that the mandate
given to respondent Judge to "cease and desist from trying cases" was not meant to penalize him
but was given only as a remedial measure to ensure that he will spend his time writing the
decisions of the long-pending 139 undecided cases instead of trying and hearing other cases.
Hence, respondent Judge’s issuance of the 2 orders in question, on 18 and 19 September 2008,
respectively, while not in strict compliance with the letter of the Administrative Order, also do
not prevent the attainment of its purpose. Indeed, there is nothing on record to even hint at an
improper motive on the part of respondent Judge in issuing said orders apart from the obvious
reason that they were necessary in the disposition of interlocutory matters in these cases.32
Hence, we dismiss the charge of circumventing Administrative Order No. 132-2008.
5.
Releasing the accused in Criminal Case

No. TG-432-03 on bail despite their being
positively identified as the perpetrators of the crime
The Investigating Justice found and recommended on this charge thuswise:

In Criminal Case No. TG-4382-03, the accused Leandro Go y Ling, Wen Li Chen, Daniel Co,
Wilson Li, Michael Fandag and Arnel Villaser were charged with Violation of Section 8, Article
II, RA 9165 (Manufacturing or Engaging in the Manufacture of, in a Clandestine Laboratory,
Large Quantity of Metamphetamine Hydrochloride, Commonly Known as Shabu).
From the Memorandum of the OCA to the Hon. Chief Justice Reynato S. Puno, it appears that
arraignment proceeded on 7 December 2004; pre-trial commenced on 8 August 2005; and trial
ensued on 19 October 2005. On 24 March 2006, the Chinese accused (Go, Li Chen, Co and Li)
filed a petition to fix bail for their provisional liberty. The prosecution did not object thereto,
and, instead filed a formal offer of evidence on 3 May 2007, as it had, by then, finished with its
presentation of evidence. On 1 June 2007, the Chinese accused filed a memorandum in support
of their petition for bail. On June 14, 2007, respondent Judge granted the petition for bail of the
accused.
In this administrative charge against respondent Judge, the OCA questions his grant of bail to the
accused for the reasons that: (1) the crime they are accused of is a capital offense, and the
transcript of stenographic notes taken during the presentation of the evidence for the prosecution
indicates that 2 witnesses positively identified the accused as the perpetrators of the crime; and
(2) there are suspicious circumstances surrounding the release of the resolution granting bail to
the accused.33
xxxx
In this case, after the prosecution finished presenting its evidence, respondent Judge came to the
conclusion that the evidence of the accused's guilt was not strong and so granted their petition for
bail.
However, the OCA disputes respondent Judge’s assessment of the guilt of the accused based on
the evaluation made by Branch Clerk of Court Atty. Stanlee D.C. Calma of the transcript of
stenographic notes on the case that 2 witnesses for the prosecution had positively identified the
accused as the perpetrators of the crime.34
xxxx
On the other hand, respondent Judge defends his grant of bail in his Judicial Affidavit as follows:
Q: OCA was faulting you for stating in your resolution that there was no positive identification
of the accused when the transcript of stenographic notes say otherwise. What can you say to this?
A: The lack or the improper identification of the accused was just one of the grounds I cited to
grant the petition. My assessment of the evidence on this matter was arrived at on two grounds:
1. failure of police officer Eusebio to positively identify the accused in his direct testimony, and
2. the failure of another prosecution witness Mr. Basilio to positively identify the accused taking
his entire testimony into consideration, the direct and cross.
xxxx
52. Q: What can you say to the allegations of Atty. Calma that you had a meeting together with
some concerned court personnel in your chamber purposely to discuss the resolution specifically
on the matter of positive identification?
A: Indeed it transpired but I stood pat on my decision.
The matter of determining whether or not the evidence is strong is a matter of judicial discretion
that remains with the judge. Such discretion must be sound and exercised within reasonable
bounds. In this case, it appears that respondent Judge gave a lot of thought to the petition for bail
before granting it, even going to the extent of consulting with some of his court personnel on the
matter after receiving the evidence of the prosecution. After much cogitation, respondent Judge
exercised his judicial discretion and came to the conclusion that the evidence against the accused
was not strong and they were not positively identified as the perpetrators of the crime.
Respondent Judge’s appreciation of the evidence against the accused lies within his sound
discretion. This mandated duty to exercise discretion has never been reposed on the Branch
Clerk of Court, who cannot be allowed to supplant his personal opinions for that of the judge.
As long as there was no irregularity in the proceedings adopted in the grant of bail, judicial
discretion must be respected and considered to have been rendered within reasonable bounds.
Respondent Judge’s lack of malice or bad faith in granting bail to the accused in Criminal Case
No. TG-4382-03 is underscored by the proceedings that transpired thereafter. According to the
Memorandum of the OCA to the Hon. Chief Justice Reynato S. Puno, on 2 July 2007, the
prosecution filed a motion for reconsideration of the 14 June 2007 resolution granting bail. The
motion was set for hearing and the accused were mandated to appear before the court. Upon
failure of the accused (except Li and Li Chen) to attend the hearing, respondent Judge canceled
their cash bail and issued warrants for their arrest. Further, upon motion of the prosecution,
respondent Judge issued a hold-departure order against the accused on 23 July 2007.35
We concur with the foregoing findings and recommendation of the Investigating Justice.
Verily, the determination of whether or not the evidence of guilt of the accused in Criminal Case
No. TG-4382-03 was strong for purposes of resolving the petition for bail was a matter of
judicial discretion for Judge Larida as the trial judge. Only he could competently resolve the
matter of bail. His exercise of discretion must be sound and reasonable. In the view of the
Investigating Justice, Judge Larida, having given a lot of thought to the petition for bail before
granting it, soundly and reasonably exercised his discretion thereon. Unless an appropriate
judicial review would show him to have acted arbitrarily, capriciously, or whimsically in doing
so, his granting of the petition for bail should be upheld and respected.
This administrative investigation could not be the occasion to review Judge Larida’s granting of
bail. Only the proper superior court could say whether his exercise of discretion in resolving the
petition for bail was sound and reasonable. Thus, Atty. Calma’s adverse conclusion based on the
transcript of the proceedings to the effect that the Prosecution’s witnesses had positively
identified the accused could not effectively contradict Judge Larida’s determination of the issue
of bail.
Whether the identification in Criminal Case No. TG-4382-03 was positively made or not was a
matter for the judicial perception of Judge Larida only. In these proceedings, he explained his
reasons for granting bail. We must respect his explanation. The accused in Criminal Case No.
TG-4382-03 were charged with the manufacture of methamphetamine hydrochloride. The
relevant testimony of the Prosecution’s witnesses was to the effect that at the time the police
arrested them on July 12, 2003 the accused were loading boxes unto various trucks and vans,
with the boxes being later on determined to contain illegal substances.36 As such, the testimony
did not establish the manufacture of methamphetamine hydrochloride, the non-bailable offense
charged, but a bailable lesser offense. Judge Larida’s June 14, 2007 resolution granting the
petition for bail reflected the distinction, viz:
In the ensuing enforcement of the search warrant issued by the Municipal Trial Court of Silang,
Cavite, several containers and sacks were found in the house described therein which were
suspected to be essential chemicals in the manufacture of methamphetamine hydrochloride, a
prohibited drug. But there was no evidence to establish that the accused had something to do
with the presence of these alleged illegal substances in the house subject of the search warrant.
The accused were not caught inside the house which the prosecution claims to be a clandestine
shabu laboratory. But the "Chinese-looking persons" were apprehended outside the clandestine
laboratory, outside its gates. They were arrested in flagrante delicto loading the containers of
illegal substances onto the vans/trucks outside the house. Loading them onto a motor vehicle
does not fall within the purview of the word "manufacture" of prohibited drugs otherwise, we are
stretching the meaning of the term a bit too far.37
Aside from assailing the resolution granting the petition for bail, Atty. Calma maintained that the
resolution had been released under suspicious circumstances considering that the defense
counsel, Atty. Albert T. Villaseca, had already gone to the RTC ready to post the cash bail of
P200,000.00 for each of the accused even prior to the release of the June 14, 2007 resolution
granting bail.38
Anent this, Atty. Villaseca explained his presence in Branch 18 in the following manner:
2. Q: On June 18, 2007 at about 9:00 o'clock in the morning, where were you?
A: I was at the Regional Trial Court, Branch 21, Imus, Cavite before the Honorable Judge
Norberto J. Quisumbing, Jr. I just came from the Regional Trial Court, Branch 19, Bacoor,
Cavite as I initially attended the hearing of Criminal Case No. B-2002-623 titled "People of the
Philippines, Plaintiff, versus, Benedicto Baraquilles Maliksi, Accused," for Homicide. The case
was postponed as the Prosecutor in said case was sick. I have with me a "Certified True Copy" of
the "Minutes" which I signed together with the "Order" of the Honorable Judge Eduardo Israel
Tanguangco both dated June 18, 2007.
3. Q: What were you doing at that time before the Regional Trial Court, Branch 21, Imus, Cavite
at the sala of the Honorable Judge Norberto J. Quisumbing, Jr.?
A: I attended the hearing and appeared as counsel for both of the accused in the case of People of
the Philippines, Plaintiff, versus, Guillermo Silla y Legaspi and Paulino Silla y Purificacion,
Accused, docketed as Criminal Case No. 10242-02 for Homicide.
4. Q: What document or documents, if any, do you have to show before this Honorable Court
that on June 18, 2007 at about 9:00 o'clock in the morning you attended and appeared before a
criminal case at the Regional Trial Court, Branch 21, Imus, Cavite before the sale (sic) of
Honorable Judge Norberto J. Quisumbing, Jr.?
A: I have with me the "Original Copy" of the Honorable Court's "Order" dated June 18, 2007
together with a "Certified True Copy of my "Appearance" indicated by my two signatures therein
and the "Minutes of the Proceedings" in the case of People of the Philippines, Plaintiff, versus,
Guillermo Silla y Legaspi and Paulino Silla y Purificacion, Accused, docketed as Criminal Case
No. 10242-02 for Homicide.
5. Q: At about what time did you leave the Regional Trial Court, Branch 21, Imus, Cavite after
you attended and appeared in the case you are handling?
A: I left the courtroom at around 10:30 o’clock in the morning after my case was called.
6. Q: What did you [do] after you left the Regional Trial Court, Branch 21, Imus, Cavite at
around 10:30 o’clock in the morning of June 18, 2007?
A: I went to my office to get the records of another case I was handling that day in the afternoon
and briefly prepared for its afternoon hearing.
7. Q: what is this case all about?
A: It is a civil case for Annulment of Deed of Sale, Annulment of Title and Damages docketed as
Civil Case No. TG-2209 titled Benjamin Q. Diwa, et. al., Plaintiffs, versus, Maxima R. Matias
and International Exchange Bank, Defendants, pending before the Regional Trial Court, Branch
18, Tagaytay City at the sala of the Honorable Judge Edwin G. Larida, Jr. which is scheduled to
be heard in the afternoon of June 18, 2007 at around 1:30 o'clock in the afternoon.
8. Q: What happened next after you arrived at your office to get the records and prepared (sic)
for this other case that you are handling in the afternoon of June 18, 2007?
A: At around 11:30 o'clock in the morning, I left my office in Imus, Cavite and together with my
driver and one of my office personnel, proceeded [to] Tagaytay City to attend to the hearing of
my case.
9. Q: What happened next, if any?
A: I arrived at the parking ground of the Regional Trial Court, Branch 18, Tagaytay City at
around 12:30 o'clock in the afternoon.
10. Q: Then, what happened next?
A: Upon arriving at the office of the personnel and staff of the Regional Trial Court, Branch 18,
Tagaytay City, I was informed by my clients and a court personnel that all the cases scheduled in
the afternoon would be rescheduled to another date as there was an unusual incident which
transpired inside the courtroom earlier.
11. Q: What is that unusual incident which transpired earlier in the courtroom of the Regional
Trial Court, Branch 18, Tagaytay City?
A: I was informed that one of the accused in a rape case from the Provincial Jail of the Province
of Cavite took hostage of one of the court employees and that is the reason why all the cases
scheduled to be heard in the afternoon were rescheduled to another date.
12: Q: What document, if any, do you have to show before this Honorable Court that there was a
hostage taking incident that transpired in the morning of June 18, 2007 in side(sic) the courtroom
of the Regional Trial Court, Branch 18, Tagaytay City?
A: I have with me a "Certified True Copy" of the Police Blotter issued by SPO4 Samuel Baybay
of the Tagaytay City Police Station.
13. Q: What did you do after that?
A: I provided the court personnel with my available date, briefly talked to my clients and
knowing that our case was already postponed I inquired about the status of my other cases
pending before the Regional Trial Court, Branch 18, Tagaytay City.
14. Q: What happened next, after that?
A: As I (was) browsing upon the records of Criminal Case No. TG-4382-03 titled The People of
the Philippines, Plaintiff, versus, Leandro Go y Lim, et al, Accused, for Violation of Sec. 8, Art.
2, RA 9165, I came across the resolution of the Honorable Court in our petition for bail.
A: I personally received a copy of the Honorable Court's Resolution and, thereafter, immediately
and excitedly informed the aunt of one of my clients as I know she would be very happy about it
as my clients have been innocently lingering in jail for almost four years and have already lost
faith and hope of ever having temporary liberty.
A: I informed the aunt of one of my clients the amount of the bond required to (be) posted in
cash and she told me to meet her at the Provincial Jail at Trece Martires City, Province of Cavite
and give her a copy of the Honorable Court's Resolution and she would provide for the amount
of the cash bond required by the Honorable Court.
A: I inquired from one of the court personnel that if we could post a cash bail bond that
afternoon, could my clients be ordered released, and what other documents the court requires to
immediately avail of the "order of Release."
A: After I was informed by one of the court personnel that since there are no cases to be heard
that afternoon and since all the cases will just be rescheduled to another date, they have a lot of
time to take care of the "Order of Release" of my clients as long as all the other court
requirements for the posting of the cash bail bond are complied with. I wasted no time and
hurriedly left the Regional Trial Court, Branch 18, Tagaytay City. Proceeded to the Provincial
Jail at Trece Martires City, Province of Cavite to inform my clients about the Honorable Court's
Resolution and to meet the aunt of one of my clients who will take care of the cash bail bond
required. On my way, I informed the aunt of my client about the other requirements for the
posting of the cash bail bond and prepared the Cash Bond Undertaking of my clients in my
laptop computer.
A: I arrived at the Provincial Jail at Trece Martires City, Province of Cavite before 2:00 o'clock
in the afternoon. Delivered a copy of the Honorable Court's Resolution to the Provincial Jail
Warden and met the aunt of one of my clients who provided me with the cash in the amount of
P400,000.00 for the cash bail bond required, pictures of the accused together with the other
requirements for the cash bail bond. I explained the consequences of a Cash Bond Undertaking
to my clients, have (sic) them sign and subscribe to it and then notarized it.
A: I wasted no time and hurriedly left for Tagaytay City. Thereafter, I posted the cash bail bond
and submitted all the requirements to secure an "Order of Release" for my clients.
A: All documents I submitted were found in order by the personnel in charge. I was able to
secure an "Order of Release" for my clients. Thereafter, I again proceeded to the Provincial Jail
at Trece Martires City, Province of Cavite and delivered to the Provincial Jail Warden an copy of
the "Order of Release."39
Atty. Calma’s bare allegations, which were obviously based on surmise and speculation, cannot
be preferred because Atty. Villaseca’s foregoing explanation of his presence in Branch 18 was
supported by authentic documents. Accordingly, we dismiss the charge of Judge Larida’s having
improperly granted bail in Criminal Case No. TG-4382-03.
6.
Charge of granting the motion to quash the
information in Criminal Case No. TG-5307-06
without a case record and without requiring a
comment from the public prosecutor
The Investigating Justice said regarding this charge:
In Criminal case No. TG-5307-06, Jayson Espiritu, among others, was charged with Murder and
was arrested on 6 August 2008 and detained at the Provincial Jail. On 22 August 2008, Jayson
Espiritu filed a motion to quash/dismiss information on the ground that he was a minor at the
time of the commission of the offense.
In an Order, dated 5 September 2008, respondent Judge set the motion to quash for hearing on
October 3, 2008 and gave the prosecution 15 days to file its comment/opposition thereto.
However, without waiting for the 15-day period to expire, respondent Judge granted Jayson
Espiritu's motion to quash on 15 September 2008.
According to the Judicial Affidavit of former Branch Clerk of Court Atty. Stanlee D.C. Calma,
aside from not giving the prosecution a chance to oppose Jayson Espiritu's motion to quash,
respondent Judge personally drafted the Order granting said motion without access to the records
of the case. Moreover, respondent Judge allegedly gave an advance copy of the Order granting
the motion to quash to the father of Jayson Espiritu, who, in turn, showed the same to the warden
of the Provincial Jail even before the court had personally served the same upon said warden on
26 September 2008. According to Atty. Calma, he was informed by the widow of the victim in
said criminal case that respondent Judge had been paid off to quash the information against
Jayson Espiritu.
In his defense, respondent Judge explained that he granted Jayson Espiritu’s motion to quash
pursuant to RA 9344 because Jayson Espiritu was only a minor at the time of the commission of
the offense, as proved by his birth certificate attached to the motion. Respondent Judge denied
having received a pay-off to quash the information against Jayson Espiritu, and explained that he
did not wait for the comment/opposition of the prosecution because he followed the substance of
the law and acted swiftly in the best interests of the minor accused. Respondent Judge asserts
that he personally prepared the order on 15 September 2008.40
Jayson Espiritu, the accused in Criminal Case No. TG-5307-06, was a minor of 15 years and 11
months at the time of the commission of the offense charged as borne out by the copy of his birth
certificate attached to the motion to quash. He was for that reason entitled to the quashal of the
information filed against him for being exempt from criminal liability based on Section 6 of
Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006), which states as follows:
Section 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under
at the time of the commission of the offense shall be exempt from criminal liability. However,
the child shall be subjected to an intervention program pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt
from criminal liability and be subjected to an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected to the appropriate proceedings in
accordance with this Act.
The exemption from criminal liability herein established does not include exemption from civil
liability, which shall be enforced in accordance with existing laws. (Emphasis supplied)
The foregoing notwithstanding, Judge Larida should not have acted on Espiritu’s motion to
quash without first giving the public prosecutor the opportunity to comment on the motion. That
opportunity was demanded by due process.41 As a judge, he should exercise patience and
circumspection to ensure that the opposing sides are allowed the opportunity to be present and to
be heard.42 Only thereby could he preclude any suspicion on the impartiality of his actuations.43
But he cannot now be sanctioned because it is a matter of public policy that in the absence of
fraud, dishonesty or corruption, the acts of a judge done in his judicial capacity are not subject to
disciplinary action although they are erroneous.44 Considering that there was no fraud,
dishonesty or corruption that attended the omission of prior notice, we simply caution him
against a repetition of the omission of prior notice.
The Investigating Justice found the charge of bribery against Judge Larida unsupported by
competent evidence.45 We concur. The records are bereft of the evidence that would establish
the charge. Innuendo and hearsay will not establish the accusation. We insist that any accusation
of bribery against a judicial officer should be made upon hard and firm evidence of it. Hence, we
dismiss the charge of bribery.
7.
Charge of granting under questionable circumstances

the petition for the issuance of owner’s duplicate copies
of various TCTs in LRC Case No. TG-06-1183
In its report, the investigating team from the OCA made the following observations with respect
to LRC Case No. TG-06-1183, to wit:
1. There was no hearing conducted to establish the jurisdiction of the court and
subsequent referral of the reception of evidence ex parte to Clerk of Court Desiree
Macaraeg as commissioner;
2. There was no proof to establish that the Register [of] Deeds of Tagaytay City, although
furnished with a copy of the petition, had actually received it;
3. There was no commissioner's report attached to the record relative to the reception of
evidence ex parte conducted on 5 & 10 May 2006;
4. The affidavit of loss of titles was presented by petitioner Santos to the Register of
Deeds only on 5 May 2006 at the same time the petition was allegedly heard by the
commissioner;
5. Per minutes dated 10 May 2006, there appears the name [of] Fiscal Manuel D. Noche,
for the government, yet the TSN state[s] that there was no appearance of Fiscal Noche on
10 May 2006 or even the 5 May 2006 ex-parte hearing.
6. Petitioner's formal offer of evidence was admitted on 10 May 2007 when the same was
filed only on 11 May 2007. The order also made it appear that there is no objection
interposed by the City Prosecutor despite non-appearance thereof.
7. The comment of the Register of Deeds on petitioner's Urgent Manifestation alleging

that the Register of Deeds delivered the TCT’s to Marie Cruz although stated 4
September 2006 was filed in court only on 4 December 2006.46
The Investigating Justice recommended the dismissal of the charge of irregularity for lack of
evidence and substantiation, thusly:
Although the Investigation Report details the legal proceedings in LRC Case No. TG-06-1183,
and certain documents from the case were offered in evidence for the complainant, the OCA did
not fully elaborate on the exact nature of this charge against respondent Judge. Moreover, during
the cross-examination of Diana Ruiz, the latter manifested a lack of knowledge over the events
that transpired in said LRC case. No other witnesses were presented to substantiate this charge.
Therefore, it is recommended that this charge against respondent Judge be DISMISSED.47
The finding and recommendation by the Investigating Justice are well-taken.1âwphi1 The mere
specification of accusations against Judge Larida could not demonstrate the veracity of the
accusations notwithstanding the attachment of all the documents allegedly in support of the
accusations. Evidence that was relevant and competent must have been adduced to support the
accusation. Diana Ruiz’s judicial affidavit attesting that the corresponding documents in support
of the investigating team’s accusations were faithful reproductions of the originals that formed
part of LRC Case No. TG-06-1183, without more, did not suffice to establish the commission of
irregularities in the disposition of the case. It is important to stress that the proceedings upon
administrative charges made against judicial officers should be viewed with utmost care, and
such proceedings are governed by the rules of law applicable to criminal cases, with the charges
to be proved beyond reasonable doubt, by virtue of their nature as highly penal in character.48
8.
Charge of liability for the fire

that occurred on October 12, 2008
Anent the fire that occurred in the records room of Branch 18, we absolve Judge Larida because
no evidence directly linking him to the arson incident was presented.49 It further appears that at
the time of the occurrence of the fire, Judge Larida was hospitalized for a kidney injury that he
had sustained from a fall on the night of October 9, 2008.50
Nevertheless, the OCA insisted on Judge Larida’s responsibility for the fire based on certain
circumstances, namely: (a) the report of the Bureau of Fire Protection revealed that access to the
courthouse was through the rear entrance,51 and he admitted that such entrance was his access to
the courthouse;52 (b) despite his being the Presiding Judge of Branch 18, he did not actively take
part in the investigation of the arson incident, thereby manifesting his lack of interest in or
concern over the burning of the courthouse;53 and (c) he had a motive to burn the courthouse in
order to destroy the court’s case records that would reveal his wrongdoings.54
However, Atty. Calma disclosed that aside from Judge Larida, utility workers Ofelia Parasdas
and Romelito Fernando, Judge Young, and Marticio all had keys to the entrance doors of the
courthouse (i.e., two front doors and one back door),55 and that he (Atty. Calma), along with the
clerk-in-charge of the civil docket Anita Goboy and criminal docket clerk Romelito Fernando,
were the only ones who had access to the records room because only they knew the location of
the key to the records room.56
Equally notable is that the forensic report denominated as Dactyloscopy Report No. F-129-08
issued by the Philippine National Police Cavite Provincial Crime Laboratory Office on
November 21, 200857 showed that one of the latent prints lifted from the crime scene belonged
to Romelito Fernando, a personnel who had testified against Judge Larida during the
investigation.
Judge Larida denied his supposed lack of interest in the investigation of the arson incident by
reminding that he had immediately requested the NBI to investigate the arson incident upon
learning about it.58 He explained that he had refrained from further actively participating in the
investigation because he had been barred by the OCA from reporting for work;59 that unlike the
staff members of RTC Branch 18 who had continued to report for work and had been
interviewed by the investigating team, he had not been summoned for any interview; and that he
also learned from the NBI agents themselves that they had been ordered to cease from further
investigating the fire upon the entry of the OCA in the investigation.60
Imputing to Judge Larida the motive to burn the courthouse in order to destroy case records that
could expose his wrongdoings was baseless and speculative. We reject the imputation. Before
any judge should be disciplined for any offense, the evidence presented against him must be
competent and derived from personal knowledge. The judge ought not to be sanctioned except
upon a proper charge, and only after due investigation and with competent proof.61
9.
Consolidated Penalty for Judge Larida

Judge Larida has been found guilty of a less serious charge for not complying with the directive
of Administrative Circular No. 28-2008 to send an inventory of locally-funded employees to the
Supreme Court within one month from notice of the circular, and of allowing locally funded
employees to perform more than merely clerical tasks; and of a light charge for unbecoming
conduct for not causing the investigation of the solicitations of commission from a bonding
company committed by three employees assigned to his court.
It is the sense of the Court to consolidate the imposable sanctions on Judge Larida into a single
penalty of suspension from office without pay for a period of two months, to be effective
immediately upon notice.
10.
Letter-complaint of Jayson Marticio
Pursuant to the recommendation of the Investigating Justice, we dismiss the letter complaint of
Marticio for lack of substantiation by him.
1. IMPOSES ON Judge Edwin G. Larida, Jr. the penalty of SUSPENSION FROM

OFFICE WITHOUT PAY FOR A PERIOD OF TWO MONTHS, to be effective
immediately upon notice, with a warning that sterner sanctions will be meted out to him
upon his commission of similar acts or omissions;
2. DISMISSES the following charges against Judge Larida, Jr. for lack of evidence to
support them, namely: (a) Extorting money from detained accused Raymund Wang; (b)
Defying the directive of the Supreme Court in Administrative Order No. 132-2008; (c)
Improperly granting bail to the accused in Criminal Case No. TG-4382-03; (d) Receiving
a bribe in exchange for granting Jayson Espiritu' s motion to quash the information in
Criminal Case No. TG-5307-06; (e) Granting under questionable circumstances the
petition for the issuance of owner's duplicate copies of various certificates of title in LRC
Case No. TG-06-1183; and (j) Involvement in the fire that razed the records room of
Branch 18 of the Regional Trial Court in Tagaytay City; and
3. DISMISSES the letter-complaint of Jayson Marticio dated October 20, 2008 due to his
lack of interest to prosecute it.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice




Associate Justice
Footnotes
1 Rollo, Vol. 1, p. 82.
2 Id. (Atty. Calma later resigned effective November 2, 2008).
3 Id. at 699-700.
4 Id. at 220-221.
5 Id. at 263-267.
6 Id.
7 Id. at 273.
8 Id. at 380.
9 Id. at 314.
10 Id. at 380.
11 Id. at 381.
12 Id. at 734-735.
13 Id. at 1330-1332.
14 Rollo, Vol. 2, p. 1333.
15 Rollo, Vol. 1, pp. 474-475.
16 Id. at 1330.
17 Rollo, Vol. 2, 1209-1212.
18 Rollo, Vol. 1, 479.
19 Id. at 575-576.
20 Id. at 576.
21 Id.
22 Id. at 703-705.
23 Administrative Matter No. 01-8-10-SC (September 11, 2001), which provides:
Section 9. Less Serious Charges. – Less serious charges include:
1. Undue delay in rendering a decision or order, or in transmitting the records of a case;
2. Frequently and unjustified absences without leave or habitual tardiness;
3. Unauthorized practice of law;
4. Violation of Supreme Court rules, directives, and circulars;
5. Receiving additional or double compensation unless specifically authorized by law;
6. Untruthful statements in the certificate of service; and
7. Simple Misconduct.
24 Rollo, Vol. 1, pp. 705-706.
25 Section 10. Light Charges. – Light charges include:

1. Vulgar and unbecoming conduct;
2. Gambling in public;
3. Fraternizing with lawyers and litigants with pending case/cases in his court; and
4. Undue delay in the submission of monthly reports.
26 Rollo, Vol. 1, pp. 708-710.
27 Castaños v. Escaño, Jr., Adm. Matter No. RTJ-93-955, December 12, 1995, 251
SCRA 174, 184.
28 Espanol v. Mupas, A.M. No. MTJ-01-1348, November 11, 2004, 442 SCRA 13, 37-
38.
29 Rollo, Vol. 1, pp. 710-712.
30 Id. at 715.
31 Id. at 713.
32 Id. at 713-714.
33 Id. at 715-716.
34 Id. at 718.
35 Id. at 720-722.
36 Rollo, Vol. 2, pp. 1113-1114; 1152.
37 Id. at 1098-1099.
38 Rollo, Vol. 1, pp. 493-495.
39 Id. at 568-572.
40 Id. at 729-731
41 Id. at 733.
42 Santiago v. Santos, Adm. Matter No. 772-CJ, April 18, 1975, 63 SCRA 392, 395.
43 Yanuario v. Paraguya, Adm. Matter No. 64-MJ, May 5, 1976, 71 SCRA 11, 13;
Sardinia-Linco v. Pineda, No. L-55939, May 29, 1981, 104 SCRA 757, 765.
44 San Buenaventura v. Malaya, A.M. No. RTJ-91-744, August 1, 2002, 386 SCRA 17,
34; Boquiren v. Del Rosario-Cruz, Adm. Case No. MTJ 94-894, June 2, 1995, 244 SCRA
702, 704.
45 Rollo, Vol. 1, pp. 732-733.
46 Id. at 13-14.
47 Id. at 733.
48 Lopez v. Fernandez, Adm. Matter No. 2124-MJ, September 11, 1980, 99 SCRA 603,
610; citing In re Impeachment of Horrileno, 43 Phil. 212, 215 (1922).
49 Rollo, Vol. 1, p. 734.
50 Rollo, Vol. 2, p. 1420.
51 Id. at 1268.
52 Rollo, Vol. 1, p. 691.
53 Id.
54 Id.
55 Id. at 515-516.
56 Rollo, Vol. 3, 1769-1771.
57 Rollo, Vol. 2, p. 1450.
58 Rollo, Vol. 3, p. 1948; Vol. 2, p.1419.
59 Id. at 1950.
60 Id. at 1982.
61 Raquiza v. Castañeda, Jr., Adm. Matter No. 1312-CFI, January 31, 1978, 81 SCRA
235, 244.
EN BANC
March 18, 2014
A.C. No. 5329
HEINZ R. HECK, Complainant,

vs.
CITY PROSECUTOR CASIANO A. GAMOTIN, JR., Respondent.
DECISION
BERSAMIN, J.:
This administrative complaint was brought against a City Prosecutor whose manner of dealing
with the complainant, a foreigner, had offended the latter. We dismiss the complaint because of
the complainant's failure to prove that the respondent thereby breached any canon of professional
conduct or legal ethics. Indeed, every lawyer who is administratively charged is presumed
innocent of wrongdoing.
In September 2000, complainant Heinz Heck filed a complaint for disbarment against then City
Prosecutor Casiano A. Gamotin of Cagayan de Oro City. According to Heck, he was a victim of
the "faulty, highly improper, suspicious anomalous and unlawful practice" by the respondent,
who had obstructed justice by delaying cases and disregarding proper court procedures, and
displayed favor towards Atty. Ce(s)ilo A. Adaza, his business partners and friends.1
The controversy arose from the filing in 1999 by Heck of a criminal case for unjust vexation
against one Oliver Cabrera in the Office of the City Prosecutor (OCP) in Cagayan de Oro City.
After the case against him was dismissed, Cabrera countered with two criminal cases against
Heck — one charging the latter with illegal possession of firearms (I.S. No. 2000-1860) and the
other with unlawful incrimination of an innocent person (Criminal Case No. 1232). Atty. Adaza
represented Cabrera in both cases. The OCP initially dismissed I.S. No. 2000-1860 for
insufficiency of evidence, but Atty. Adaza moved for the reconsideration of the dismissal. The
respondent granted the motion for reconsideration. Heck challenged the order of the respondent.
In the meantime, other pending complaints against Cabrera (for unjust vexation and grave
threats) were also dismissed because of prescription and insufficiency of evidence. Heck moved
for the reconsideration of the dismissals twice, but his motions were denied.2
Heck claimed that on September 11, 2000, the respondent scheduled a meeting at his office to be
attended by Heck, his lawyer, his wife and Atty. Adaza. However, Atty. Adaza did not attend the
meeting. Heck alleged, however, that Atty. Adaza and the respondent held their own separate
"private meeting," for which reason Heck questioned the propriety of the private meeting and the
possibility of connivance between the respondent and Atty. Adaza.3
On September 13, 2000, Heck, accompanied by one Ullrich Coufal, went to the respondent’s
office to pick up documents supposedly promised to him. But he was denied the documents by
certain ladies sitting outside the respondent’s office who behaved arrogantly. Upon arriving at
his office, the respondent pushed through the people crowding outside the office. The actuations
of the respondent at the time were described by Heck thuswise:
That Prosecutor Gamotin, Jr. entered his office, the door was held open by a chair. Passing the
door, Prosecutor Gamotin, Jr. furiously KICKED the chair who [sic] was holding the door to his
office open, sending the chair flying onto the other chairs at his conference table. Then he
SLAMMED the door, almost hitting the face of Mr. Coufal, who had tried to followed [sic]
Prosecutor Gamotin, Jr. Observing such behaviour
I asked (sic) Mr. Coufal that we better leave. We left disgusted the office, (sic) leaving smiling
faces behind us.4
On September 15, 2000, Heck, his wife, child, and counsel went to the respondent’s office for
another meeting. Atty. Adaza arrived and went straight inside the respondent’s office and then
called Heck and his group in as if the office was his own. On that occasion, Heck was told that if
he agreed, all cases would be settled and withdrawn. Heck then asked why the respondent was
still entertaining Atty. Adaza despite his having been already suspended from the practice of law
by the Supreme Court. The respondent raised his voice asking how Heck had learned about the
suspension, and whether it was a final decision of the Supreme Court.5 Moreover, Heck recalled:
That the City Prosecutor x x x now was screaming at me, as no one has ever screamed at me in
my sixty (60) years of live [sic]. That he x x x "never received such information and that this
Supreme Court decision is not final", he was now repeating himself again and again. Here Adaza
came in and remarked (when Gamotin Jr. was catching his breath) that he, Adaza had appealed
against this decision[)] Gamotin, Jr. continued screaming at me, (")that he, (Gamotin) is the
["]Authority and the Law."6
Heck stated that he tried to explain his situation calmly to the respondent, but the respondent
continued screaming at him, saying:
You foreigner, go home here we the law of the Filipinos, I am the Authority.7
Heck then left the office of the respondent upon the prodding of his counsel. He claimed that his
wife and child became very scared.
In his response to the charge of Heck, the respondent averred that: (1) he had no personal
knowledge of Atty. Adaza’s suspension, because such information had not been properly
disseminated to the public offices; (2) there were no irregularities in the filing and resolution of
the motion for reconsideration of Atty. Adaza; (3) the September 11, 2000 meeting had not been
arranged by him, but by Heck’s counsel in order to discuss the possibility of settlement; hence,
he did not take part in the meeting; (4) he did not display any act of violence, particularly the
kicking of the chair and slamming of the door, aside from such acts being improbable because of
his age and build; (5) the September 14, 2000 meeting was between the parties’ counsels to
discuss ways to settle their cases, and Heck was the one who did not agree to the suggestion of
withdrawing the cases; (6) it was Heck who acted arrogantly when he challenged the
respondent’s authority in allowing Atty. Adaza to appear in court despite his suspension; and (7)
he admitted that when Heck uttered the words: I will not believe the authorities of the
Philippines, he slightly raised his voice to respond: If you will not believe the authorities of the
Philippines, you have no place in this country, you can go home.8
Report and Recommendation of the Office of the Bar Confidante
It appears that Heck had filed administrative complaints against the respondent in the
Department of Justice (DOJ); as well as in the Office of the Ombudsman.9
On October 12, 2001, the DOJ issued a letter-resolution dismissing the administrative complaint
filed by Heck against the respondent, finding no cogent basis for the charge of abuse of authority
and corruption; and ruling that in any case the respondent had already retired from government
service as of June 6, 2001, rendering the administrative case moot and academic.10
Meantime, the administrative cases in the Office of the Ombudsman were referred to the Public
Assistance Bureau and the Fact Finding Investigation Bureau (FFIB) of that office. In its
Investigation Report, the FFIB recommended that: (1) the investigation of the complaint be
considered closed and terminated without prejudice to its reopening should new evidence enough
to establish a prima facie case against the respondent become available; and (2) the alleged
breach by Atty. Adaza of his suspension from the practice of law and the permission given by the
RTC of Cagayan de Oro City be referred to the Supreme Court.11
The records were first referred to the Office of the Court Administrator, then to the Office of the
Bar Confidant (OBC) for evaluation of the merits of the disbarment case against the respondent,
and for its report and recommendation.12
In its Report and Recommendation filed on June 6, 2011,13 the OBC observed that although
there was no clear, convincing and satisfactory evidence of misconduct as to warrant the penalty
of disbarment, the respondent’s conduct should be sanctioned; that his act of privately
entertaining Atty. Adaza and his brother, as well as allowing his office to be used for a meeting
even in his absence raised doubt on his integrity; that the respondent’s reaction to Heck’s tirade
against the country’s justice system, particularly the respondent’s retort that Heck should go back
to his country if he did not believe in the Philippine authorities, constituted decorum that was so
unbecoming of a lawyer.14
Thus, the OBC recommended:

WHEREFORE, premises considered, it is respectfully recommended that Respondent’s prayer to
dismiss the case for lack of merit be DENIED and that he be SEVERELY REPRIMANDED
with stern warning that a similar act in the future will be dealt with more seriously.15
Ruling of the Court
Like the OBC, we consider that the evidence adduced by the complainant insufficient to warrant
the disbarment of the respondent. Disbarment is the most severe form of disciplinary sanction
against a misbehaving member of the Integrated Bar. As such, the power to disbar is always
exercised with great caution only for the most imperative reasons and in cases of clear
misconduct affecting the standing and moral character of the lawyer as an officer of the court and
member of the bar.16
However, unlike the OBC, we do not find any justification to sanction the respondent. A lawyer
like the respondent is not to be sanctioned for every perceived misconduct or wrong actuation.
He is still to be presumed innocent of wrongdoing until the proof arrayed against him establishes
otherwise. It is the burden of the complainant to properly show that the assailed conduct or
actuation constituted a breach of the norms of professional conduct and legal ethics. Otherwise,
the lawyer merits exoneration.
To begin with, the holding of the meeting between Atty. Babarin, Heck’s counsel, and Atty.
Adaza in the respondent’s office was not suspicious or irregular, contrary to the insinuation of
Heck. We are not unmindful of the practice of some legal practitioners to arrange to meet with
their opposing counsels and their clients in the premises of the offices of the public prosecutors
or in the courthouses primarily because such premises are either a convenient or a neutral ground
for both sides. Accordingly, holding the meeting between Heck and his adversary, with their
respective counsels, in the respondent’s office did not by itself indicate any illegal or corrupt
activity. We also note that the respondent was not present in the meeting.
Secondly, we cannot sanction the respondent for having angrily reacted to Heck’s unexpected
tirade in his presence. The respondent was not then reacting to an attack on his person, but to
Heck’s disrespectful remark against Philippine authorities in general. Any self-respecting
government official like the respondent should feel justly affronted by any expression or show of
disrespect in his presence, including harsh words like those uttered by Heck. Whether or not
Heck was justified in making the utterance is of no relevance to us. Lawyers may be expected to
maintain their composure and decorum at all times, but they are still human, and their emotions
are like those of other normal people placed in unexpected situations that can crack their veneer
of self-control. That is how we now view the actuation of the respondent in reacting to Heck’s
utterance. The Court will not permit the respondent’s good record to be tarnished by his having
promptly reacted to Heck’s remark.
Moreover, Heck could have sincerely perceived the respondent’s actuations to be arrogant and
overbearing, but it is not fair for us to take the respondent to task in the context of the events and
occasions in which the actuations occurred in the absence of a credible showing that his
actuations had been impelled by any bad motive, or had amounted to any breach of any canon of
professional conduct or legal ethics.
Lastly, Heck complains that the respondent still entertained Atty. Adaza despite the latter having
been already suspended from the practice of law.1âwphi1 The respondent explains, however,
that he "had no personal knowledge of Atty. Adaza’s suspension and that such information was
not properly disseminated to the proper offices."
We are inclined to believe the respondent’s explanation.
The Court meted on Atty. Adaza the suspension from the practice of law in its decision
promulgated on March 27, 2000 in Adm. Case No. 4083 entitled Gonato v. Adaza.17 When
Heck confronted the respondent on September 15, 2000 about his allowing Atty. Adaza to
practice law despite his suspension, the respondent asked when Heck had learned of the
suspension. The respondent thereby implied that he had been unaware of the suspension until
then.
We believe that the respondent was not yet aware of the suspension at that time. In Heck v. Atty.
Versoza (Adm. Case No. 5330, December 5, 2000),18 the Court clarified that Atty. Adaza's
suspension became final and effective only after his receipt on September 5, 2000 of the
resolution denying his motion for reconsideration with finality; and explained that he would be
denied his right to due process if his suspension were to be made operative on March 27, 2000,
the date when the Court ordered his suspension for six months. The Court further clarified in
Heck v. Atty. Versoza that the courts in the country as well as the public would be informed of
the suspension only after the lapse of a reasonable period after September 5, 2000 considering
that as a matter of policy the circularization of the order of suspension could be done only after
the decision upon the suspension had attained finality.
It was possible that at the occasion when Atty. Adaza appeared before the respondent on
September 15, 2000, his suspension had not yet attained finality, or that the order of suspension
had not yet been known to the respondent. Accordingly, it will be unjustified to hold the
respondent liable for allowing Atty. Adaza to practice law and to represent his client in the OCP
of Cagayan de Oro City.
WHEREFORE, the Court DISMISSES the complaint for disbarment against respondent ATTY.
CASIANO A. GAMOTIN, JR.; and CONSIDERS this administrative matter closed and
terminated.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice



(ON LEAVE)
BIENVENIDO L. REYES
Associate Justice
Associate Justice
Footnotes
1 Rollo, p. 2.
2 Id. at 194-195.
3 Id. at 6.
4 Id. at 8.
5 Id. at 9-11.
6 Id. at 11.
7 Id. at 12.
8 Id. at 42-47; Comment of the respondent.
9 Id. at 197.
10 Id. at 72-73.
11 Id. at 198.
12 Id. at 193.
13 Id. at 194-201.
14 Id. at 200.
15 Id. at 20.
16 Kara-an v. Pineda, A.C. No. 4306, March 28, 2007, 519 SCRA 143,146.
17 328 SCRA 694.
18 Unpublished resolution.
SUPREME COURT
Manila
EN BANC
G.R. No. 209287 July 1, 2014
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG

MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE
PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN,
CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA WOMEN'S
PARTY REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAY AN MUNA
PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR., SECRETARY
GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG KAPATIRAN
PARTY; VENCER MARI E. CRISOSTOMO, CHAIRPERSON, ANAKBAYAN;
VICTOR VILLANUEVA, CONVENOR, YOUTH ACT NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND
FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209135
AUGUSTO L. SY JUCO JR., Ph.D., Petitioner,

vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF DEPARTMENT
OF BUDGET AND MANAGEMENT; AND HON. FRANKLIN MAGTUNAO DRILON,
IN HIS CAP A CITY AS THE SENATE PRESIDENT OF THE PHILIPPINES,
Respondents.
x-----------------------x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner,

vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT; AND EXECUTIVE SECRETARY
PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO OF THE
PRESIDENT, Respondents.
x-----------------------x
G.R. No. 209155
ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner,

vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND THE
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY

DEAN FROILAN M. BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M.
BRIONES, Petitioners,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. FLORENCIO B.
ABAD, Respondents.
x-----------------------x
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,

vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT (DBM), Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN MABANTE AND REV.

JOSE L. GONZALEZ, Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE
PHILIPPINES, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON;
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO
BELMONTE, JR.; THE EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF BUDGET AND
MANAGEMENT, REPRESENTED BY SECRETARY FLORENCIO ABAD; THE
DEPARTMENT OF FINANCE, REPRESENTED BY SECRETARY CESAR V.
PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA V.
DE LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN CEMENT OF

GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS 1ST VICE
PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA NARTATES, FOR
HERSELF AND AS NATIONAL PRESIDENT OF THE CONSOLIDATED UNION OF
EMPLOYEES NATIONAL HOUSING AUTHORITY (CUENHA); MANUEL
BACLAGON, FOR HIMSELF AND AS PRESIDENT OF THE SOCIAL WELFARE
EMPLOYEES ASSOCIATION OF THE PHILIPPINES, DEPARTMENT OF SOCIAL
WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO);
ANTONIA PASCUAL, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE
DEPARTMENT OF AGRARIAN REFORM EMPLOYEES ASSOCIATION (DAREA);
ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE
ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION (EMBEU);
AND MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT OF THE KAPISANAN
PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA (KKKMMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND HON.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC), REPRESENTED BY

DANTE L. JIMENEZ, Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD,
SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT,
Respondents.
DECISION
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the constitutionality of the Disbursement
Acceleration Program(DAP), National Budget Circular (NBC) No. 541, and related issuances of
the Department of Budget and Management (DBM) implementing the DAP.
At the core of the controversy is Section 29(1) of Article VI of the 1987 Constitution, a provision
of the fundamental law that firmly ordains that "[n]o money shall be paid out of the Treasury
except in pursuance of an appropriation made by law." The tenor and context of the challenges
posed by the petitioners against the DAP indicate that the DAP contravened this provision by
allowing the Executive to allocate public money pooled from programmed and unprogrammed
funds of its various agencies in the guise of the President exercising his constitutional authority
under Section 25(5) of the 1987 Constitution to transfer funds out of savings to augment the
appropriations of offices within the Executive Branch of the Government. But the challenges are
further complicated by the interjection of allegations of transfer of funds to agencies or offices
outside of the Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege speech in the Senate
of the Philippines to reveal that some Senators, including himself, had been allotted an additional
P50 Million each as "incentive" for voting in favor of the impeachment of Chief Justice Renato
C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the DBM issued a public
statement entitled Abad: Releases to Senators Part of Spending Acceleration Program,1
explaining that the funds released to the Senators had been part of the DAP, a program designed
by the DBM to ramp up spending to accelerate economic expansion. He clarified that the funds
had been released to the Senators based on their letters of request for funding; and that it was not
the first time that releases from the DAP had been made because the DAP had already been
instituted in 2011 to ramp up spending after sluggish disbursements had caused the growth of the
gross domestic product (GDP) to slow down. He explained that the funds under the DAP were
usually taken from (1) unreleased appropriations under Personnel Services;2 (2) unprogrammed
funds; (3) carry-over appropriations unreleased from the previous year; and (4) budgets for slow-
moving items or projects that had been realigned to support faster-disbursing projects.
The DBM soon came out to claim in its website3 that the DAP releases had been sourced from
savings generated by the Government, and from unprogrammed funds; and that the savings had
been derived from (1) the pooling of unreleased appropriations, like unreleased Personnel
Services4 appropriations that would lapse at the end of the year, unreleased appropriations of
slow-moving projects and discontinued projects per zero based budgeting findings;5 and (2) the
withdrawal of unobligated allotments also for slow-moving programs and projects that had been
earlier released to the agencies of the National Government.
The DBM listed the following as the legal bases for the DAP’s use of savings,6 namely: (1)
Section 25(5), Article VI of the 1987 Constitution, which granted to the President the authority
to augment an item for his office in the general appropriations law; (2) Section 49 (Authority to
Use Savings for Certain Purposes) and Section 38 (Suspension of Expenditure Appropriations),
Chapter 5, Book VI of Executive Order (EO) No. 292 (Administrative Code of 1987); and (3) the
General Appropriations Acts (GAAs) of 2011, 2012 and 2013, particularly their provisions on
the (a) use of savings; (b) meanings of savings and augmentation; and (c) priority in the use of
savings.
As for the use of unprogrammed funds under the DAP, the DBM cited as legal bases the special
provisions on unprogrammed fund contained in the GAAs of 2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM brought the DAP to
the consciousness of the Nation for the first time, and made this present controversy inevitable.
That the issues against the DAP came at a time when the Nation was still seething in anger over
Congressional pork barrel – "an appropriation of government spending meant for localized
projects and secured solely or primarily to bring money to a representative’s district"7 – excited
the Nation as heatedly as the pork barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the issuances relating to the DAP
were filed within days of each other, as follows: G.R. No. 209135 (Syjuco), on October 7, 2013;
G.R. No. 209136 (Luna), on October 7, 2013; G.R. No. 209155 (Villegas),8 on October 16,
2013; G.R. No. 209164 (PHILCONSA), on October 8, 2013; G.R. No. 209260 (IBP), on October
16, 2013; G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No. 209442 (Belgica), on
October 29, 2013; G.R. No. 209517 (COURAGE), on November6, 2013; and G.R. No. 209569
(VACC), on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the Court’s attention NBC No. 541
(Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated
Allotments as of June 30, 2012), alleging that NBC No. 541, which was issued to implement the
DAP, directed the withdrawal of unobligated allotments as of June 30, 2012 of government
agencies and offices with low levels of obligations, both for continuing and current allotments.
In due time, the respondents filed their Consolidated Comment through the Office of the
Solicitor General (OSG).
The Court directed the holding of oral arguments on the significant issues raised and joined.
Issues
Under the Advisory issued on November 14, 2013, the presentations of the parties during the
oral arguments were limited to the following, to wit:
Procedural Issue:
A. Whether or not certiorari, prohibition, and mandamus are proper remedies to assail the
constitutionality and validity of the Disbursement Acceleration Program (DAP), National Budget
Circular (NBC) No. 541, and all other executive issuances allegedly implementing the DAP.
Subsumed in this issue are whether there is a controversy ripe for judicial determination, and the
standing of petitioners.
Substantive Issues:
B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which provides:
"No money shall be paid out of the Treasury except in pursuance of an appropriation made by
law."
C. Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly
implementing the DAP violate Sec. 25(5), Art. VI of the 1987 Constitution insofar as:
(a)They treat the unreleased appropriations and unobligated allotments withdrawn

from government agencies as "savings" as the term is used in Sec. 25(5), in
relation to the provisions of the GAAs of 2011, 2012 and 2013;
(b)They authorize the disbursement of funds for projects or programs not

provided in the GAAs for the Executive Department; and
(c)They "augment" discretionary lump sum appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the system of checks
and balances, and (3) the principle of public accountability enshrined in the 1987 Constitution
considering that it authorizes the release of funds upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a temporary restraining order to
restrain the implementation of the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP.
In its Consolidated Comment, the OSG raised the matter of unprogrammed funds in order to
support its argument regarding the President’s power to spend. During the oral arguments, the
propriety of releasing unprogrammed funds to support projects under the DAP was considerably
discussed. The petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica) dwelled
on unprogrammed funds in their respective memoranda. Hence, an additional issue for the oral
arguments is stated as follows:
F. Whether or not the release of unprogrammed funds under the DAP was in accord with the
GAAs.
During the oral arguments held on November 19, 2013, the Court directed Sec. Abad to submit a
list of savings brought under the DAP that had been sourced from (a) completed programs; (b)
discontinued or abandoned programs; (c) unpaid appropriations for compensation; (d) a certified
copy of the President’s directive dated June 27, 2012 referred to in NBC No. 541; and (e) all
circulars or orders issued in relation to the DAP.9
In compliance, the OSG submitted several documents, as follows:
(1) A certified copy of the Memorandum for the President dated June 25, 2012 (Omnibus
Authority to Consolidate Savings/Unutilized Balances and their Realignment);10
(2) Circulars and orders, which the respondents identified as related to the DAP, namely:
a. NBC No. 528 dated January 3, 2011 (Guidelines on the Release of Funds for
FY 2011);
b. NBC No. 535 dated December 29, 2011 (Guidelines on the Release of Funds
for FY 2012);
c. NBC No. 541 dated July 18, 2012 (Adoption of Operational Efficiency
Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30,
2012);
d. NBC No. 545 dated January 2, 2013 (Guidelines on the Release of Funds for
FY 2013);
e. DBM Circular Letter No. 2004-2 dated January 26, 2004 (Budgetary Treatment
of Commitments/Obligations of the National Government);
f. COA-DBM Joint Circular No. 2013-1 dated March 15, 2013 (Revised
Guidelines on the Submission of Quarterly Accountability Reports on
Appropriations, Allotments, Obligations and Disbursements);
g. NBC No. 440 dated January 30, 1995 (Adoption of a Simplified Fund Release
System in the Government).
(3) A breakdown of the sources of savings, including savings from discontinued projects
and unpaid appropriations for compensation from 2011 to 2013
On January 28, 2014, the OSG, to comply with the Resolution issued on January 21, 2014
directing the respondents to submit the documents not yet submitted in compliance with the
directives of the Court or its Members, submitted several evidence packets to aid the Court in
understanding the factual bases of the DAP, to wit:
(1) First Evidence Packet11 – containing seven memoranda issued by the DBM through
Sec. Abad, inclusive of annexes, listing in detail the 116 DAP identified projects
approved and duly signed by the President, as follows:
a. Memorandum for the President dated October 12, 2011 (FY 2011 Proposed
Disbursement Acceleration Program (Projects and Sources of Funds);
b. Memorandum for the President dated December 12, 2011 (Omnibus Authority
to Consolidate Savings/Unutilized Balances and its Realignment);
c. Memorandum for the President dated June 25, 2012 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their Realignment);
d. Memorandum for the President dated September 4, 2012 (Release of funds for
other priority projects and expenditures of the Government);
e. Memorandum for the President dated December 19, 2012 (Proposed Priority
Projects and Expenditures of the Government);
f. Memorandum for the President dated May 20, 2013 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their Realignment to Fund the
Quarterly Disbursement Acceleration Program); and
g. Memorandum for the President dated September 25, 2013 (Funding for the
Task Force Pablo Rehabilitation Plan).
(2) Second Evidence Packet12 – consisting of 15 applications of the DAP, with their
corresponding Special Allotment Release Orders (SAROs) and appropriation covers;
(3) Third Evidence Packet13 – containing a list and descriptions of 12 projects under the
DAP;
(4) Fourth Evidence Packet14 – identifying the DAP-related portions of the Annual
Financial Report (AFR) of the Commission on Audit for 2011 and 2012;
(5) Fifth Evidence Packet15 – containing a letter of Department of Transportation and

Communications(DOTC) Sec. Joseph Abaya addressed to Sec. Abad recommending the
withdrawal of funds from his agency, inclusive of annexes; and
(6) Sixth Evidence Packet16 – a print-out of the Solicitor General’s visual presentation
for the January 28, 2014 oral arguments.
On February 5, 2014,17 the OSG forwarded the Seventh Evidence Packet,18 which listed the
sources of funds brought under the DAP, the uses of such funds per project or activity pursuant
to DAP, and the legal bases thereof.
On February 14, 2014, the OSG submitted another set of documents in further compliance with
the Resolution dated January 28, 2014, viz:
(1) Certified copies of the certifications issued by the Bureau of Treasury to the effect that the
revenue collections exceeded the original revenue targets for the years 2011, 2012 and 2013,
including collections arising from sources not considered in the original revenue targets, which
certifications were required for the release of the unprogrammed funds as provided in Special
Provision No. 1 of Article XLV, Article XVI, and Article XLV of the 2011, 2012 and 2013
GAAs; and (2) A report on releases of savings of the Executive Department for the use of the
Constitutional Commissions and other branches of the Government, as well as the fund releases
to the Senate and the Commission on Elections (COMELEC).
RULING
I.
Procedural Issue:
a) The petitions under Rule 65 are proper remedies

All the petitions are filed under Rule 65 of the Rules of Court, and include applications for the
issuance of writs of preliminary prohibitory injunction or temporary restraining orders. More
specifically, the nature of the petitions is individually set forth hereunder, to wit:
G.R. No. 209135 (Syjuco) Certiorari, Prohibition and Mandamus

G.R. No. 209136 (Luna) Certiorariand Prohibition
G.R. No. 209155 (Villegas) Certiorariand Prohibition
G.R. No. 209164 (PHILCONSA) Certiorariand Prohibition
G.R. No. 209260 (IBP) Prohibition
G.R. No. 209287 (Araullo) Certiorariand Prohibition
G.R. No. 209442 (Belgica) Certiorari
G.R. No. 209517 (COURAGE) Certiorari and Prohibition
G.R. No. 209569 (VACC) Certiorari and Prohibition
The respondents submit that there is no actual controversy that is ripe for adjudication in the
absence of adverse claims between the parties;19 that the petitioners lacked legal standing to sue
because no allegations were made to the effect that they had suffered any injury as a result of the
adoption of the DAP and issuance of NBC No. 541; that their being taxpayers did not
immediately confer upon the petitioners the legal standing to sue considering that the adoption
and implementation of the DAP and the issuance of NBC No. 541 were not in the exercise of the
taxing or spending power of Congress;20 and that even if the petitioners had suffered injury,
there were plain, speedy and adequate remedies in the ordinary course of law available to them,
like assailing the regularity of the DAP and related issuances before the Commission on Audit
(COA) or in the trial courts.21
The respondents aver that the special civil actions of certiorari and prohibition are not proper
actions for directly assailing the constitutionality and validity of the DAP, NBC No. 541, and the
other executive issuances implementing the DAP.22
In their memorandum, the respondents further contend that there is no authorized proceeding
under the Constitution and the Rules of Court for questioning the validity of any law unless there
is an actual case or controversy the resolution of which requires the determination of the
constitutional question; that the jurisdiction of the Court is largely appellate; that for a court of
law to pass upon the constitutionality of a law or any act of the Government when there is no
case or controversy is for that court to set itself up as a reviewer of the acts of Congress and of
the President in violation of the principle of separation of powers; and that, in the absence of a
pending case or controversy involving the DAP and NBC No. 541, any decision herein could
amount to a mere advisory opinion that no court can validly render.23
The respondents argue that it is the application of the DAP to actual situations that the petitioners
can question either in the trial courts or in the COA; that if the petitioners are dissatisfied with
the ruling either of the trial courts or of the COA, they can appeal the decision of the trial courts
by petition for review on certiorari, or assail the decision or final order of the COA by special
civil action for certiorari under Rule 64 of the Rules of Court.24
The respondents’ arguments and submissions on the procedural issue are bereft of merit.
Section 1, Article VIII of the 1987 Constitution expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
Thus, the Constitution vests judicial power in the Court and in such lower courts as may be
established by law. In creating a lower court, Congress concomitantly determines the jurisdiction
of that court, and that court, upon its creation, becomes by operation of the Constitution one of
the repositories of judicial power.25 However, only the Court is a constitutionally created court,
the rest being created by Congress in its exercise of the legislative power.
The Constitution states that judicial power includes the duty of the courts of justice not only "to
settle actual controversies involving rights which are legally demandable and enforceable" but
also "to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government." It has
thereby expanded the concept of judicial power, which up to then was confined to its traditional
ambit of settling actual controversies involving rights that were legally demandable and
enforceable.
The background and rationale of the expansion of judicial power under the 1987 Constitution
were laid out during the deliberations of the 1986 Constitutional Commission by Commissioner
Roberto R. Concepcion (a former Chief Justice of the Philippines) in his sponsorship of the
proposed provisions on the Judiciary, where he said:–
The Supreme Court, like all other courts, has one main function: to settle actual controversies
involving conflicts of rights which are demandable and enforceable. There are rights which are
guaranteed by law but cannot be enforced by a judicial party. In a decided case, a husband
complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can
tell your wife what her duties as such are and that she is bound to comply with them, but we
cannot force her physically to discharge her main marital duty to her husband. There are some
rights guaranteed by law, but they are so personal that to enforce them by actual compulsion
would be highly derogatory to human dignity." This is why the first part of the second paragraph
of Section 1 provides that: Judicial power includes the duty of courts to settle actual
controversies involving rights which are legally demandable or enforceable…
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also, another important function. The
powers of government are generally considered divided into three branches: the Legislative, the
Executive and the Judiciary. Each one is supreme within its own sphere and independent of the
others. Because of that supremacy power to determine whether a given law is valid or not is
vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a
duty to pass judgmenton matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter
evade the duty to settle matters of this nature, by claiming that such matters constitute a political
question. (Bold emphasis supplied)26
Upon interpellation by Commissioner Nolledo, Commissioner Concepcion clarified the scope of

judicial power in the following manner:–
MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial power includes the duty of courts of justice
to settle actual controversies…" The term "actual controversies" according to the Commissioner
should refer to questions which are political in nature and, therefore, the courts should not refuse
to decide those political questions. But do I understand it right that this is restrictive or only an
example? I know there are cases which are not actual yet the court can assume jurisdiction. An
example is the petition for declaratory relief.
May I ask the Commissioner’s opinion about that?
MR. CONCEPCION. The Supreme Court has no jurisdiction to grant declaratory judgments.
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested
in the Supreme Court alone but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions
with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a
question as to whether the government had authority or had abused its authority to the extent of
lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court
has the duty to decide.27
Our previous Constitutions equally recognized the extent of the power of judicial review and the
great responsibility of the Judiciary in maintaining the allocation of powers among the three
great branches of Government. Speaking for the Court in Angara v. Electoral Commission,28
Justice Jose P. Laurel intoned:
x x x In times of social disquietude or political excitement, the great landmarks of the

Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can be called upon to determine the
proper allocation of powers between the several department and among the integral or
constituent units thereof.
xxxx
The Constitution is a definition of the powers of government. Who is to determine the nature,
scope and extent of such powers? The Constitution itself has provided for the instrumentality of
the judiciary as the rational way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other department; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is involved in what is termed
"judicial supremacy" which properly is the power of judicial review under the Constitution. x x
x29
What are the remedies by which the grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government may be determined
under the Constitution?
The present Rules of Court uses two special civil actions for determining and correcting grave
abuse of discretion amounting to lack or excess of jurisdiction. These are the special civil actions
for certiorari and prohibition, and both are governed by Rule 65. A similar remedy of certiorari
exists under Rule 64, but the remedy is expressly applicable only to the judgments and final
orders or resolutions of the Commission on Elections and the Commission on Audit.
The ordinary nature and function of the writ of certiorari in our present system are aptly
explained in Delos Santos v. Metropolitan Bank and Trust Company:30
In the common law, from which the remedy of certiorari evolved, the writ of certiorari was
issued out of Chancery, or the King’s Bench, commanding agents or officers of the inferior
courts to return the record of a cause pending before them, so as to give the party more sure and
speedy justice, for the writ would enable the superior court to determine from an inspection of
the record whether the inferior court’s judgment was rendered without authority. The errors were
of such a nature that, if allowed to stand, they would result in a substantial injury to the petitioner
to whom no other remedy was available. If the inferior court acted without authority, the record
was then revised and corrected in matters of law. The writ of certiorari was limited to cases in
which the inferior court was said to be exceeding its jurisdiction or was not proceeding according
to essential requirements of law and would lie only to review judicial or quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system remains much the same as it has
been in the common law. In this jurisdiction, however, the exercise of the power to issue the writ
of certiorari is largely regulated by laying down the instances or situations in the Rules of Court
in which a superior court may issue the writ of certiorari to an inferior court or officer. Section 1,
Rule 65 of the Rules of Court compellingly provides the requirements for that purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction of errors of jurisdiction, which includes
the commission of grave abuse of discretion amounting to lack of jurisdiction. In this regard,
mere abuse of discretion is not enough to warrant the issuance of the writ. The abuse of
discretion must be grave, which means either that the judicial or quasi-judicial power was
exercised in an arbitrary or despotic manner by reason of passion or personal hostility, or that the
respondent judge, tribunal or board evaded a positive duty, or virtually refused to perform the
duty enjoined or to act in contemplation of law, such as when such judge, tribunal or board
exercising judicial or quasi-judicial powers acted in a capricious or whimsical manner as to be
equivalent to lack of jurisdiction.31
Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to
be distinguished from prohibition by the fact that it is a corrective remedy used for the re-
examination of some action of an inferior tribunal, and is directed to the cause or proceeding in
the lower court and not to the court itself, while prohibition is a preventative remedy issuing to
restrain future action, and is directed to the court itself.32 The Court expounded on the nature
and function of the writ of prohibition in Holy Spirit Homeowners Association, Inc. v.
Defensor:33
A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise of
a quasi-legislative function. Prohibition is an extraordinary writ directed against any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, ordering said entity or person to desist from further proceedings when said
proceedings are without or in excess of said entity’s or person’s jurisdiction, or are accompanied
with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law. Prohibition lies against judicial or ministerial functions,
but not against legislative or quasi-legislative functions. Generally, the purpose of a writ of
prohibition is to keep a lower court within the limits of its jurisdiction in order to maintain the
administration of justice in orderly channels. Prohibition is the proper remedy to afford relief
against usurpation of jurisdiction or power by an inferior court, or when, in the exercise of
jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the
bounds prescribed to it by the law, or where there is no adequate remedy available in the
ordinary course of law by which such relief can be obtained. Where the principal relief sought is
to invalidate an IRR, petitioners’ remedy is an ordinary action for its nullification, an action
which properly falls under the jurisdiction of the Regional Trial Court. In any case, petitioners’
allegation that "respondents are performing or threatening to perform functions without or in
excess of their jurisdiction" may appropriately be enjoined by the trial court through a writ of
injunction or a temporary restraining order.
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily
broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct
errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising
judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of
grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or
ministerial functions. This application is expressly authorized by the text of the second paragraph
of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional
issues and to review and/or prohibit or nullify the acts of legislative and executive officials.34
Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality
of the Government, the Court is not at all precluded from making the inquiry provided the
challenge was properly brought by interested or affected parties. The Court has been thereby
entrusted expressly or by necessary implication with both the duty and the obligation of
determining, in appropriate cases, the validity of any assailed legislative or executive action. This
entrustment is consistent with the republican system of checks and balances.35
Following our recent dispositions concerning the congressional pork barrel, the Court has
become more alert to discharge its constitutional duty. We will not now refrain from exercising
our expanded judicial power in order to review and determine, with authority, the limitations on
the Chief Executive’s spending power.
b) Requisites for the exercise of the

power of judicial review were
complied with
The requisites for the exercise of the power of judicial review are the following, namely: (1)
there must bean actual case or justiciable controversy before the Court; (2) the question before
the Court must be ripe for adjudication; (3) the person challenging the act must be a proper party;
and (4) the issue of constitutionality must be raised at the earliest opportunity and must be the
very litis mota of the case.36
The first requisite demands that there be an actual case calling for the exercise of judicial power
by the Court.37 An actual case or controversy, in the words of Belgica v. Executive Secretary
Ochoa:38
x x x is one which involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute. In other words, "[t]here must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence." Related to the requirement of an actual
case or controversy is the requirement of "ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication
when the act being challenged has had a direct adverse effect on the individual challenging it. It
is a prerequisite that something had then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the challenged action." "Withal, courts will
decline to pass upon constitutional issues through advisory opinions, bereft as they are of
authority to resolve hypothetical or moot questions."
An actual and justiciable controversy exists in these consolidated cases. The incompatibility of
the perspectives of the parties on the constitutionality of the DAP and its relevant issuances
satisfy the requirement for a conflict between legal rights. The issues being raised herein meet
the requisite ripeness considering that the challenged executive acts were already being
implemented by the DBM, and there are averments by the petitioners that such implementation
was repugnant to the letter and spirit of the Constitution. Moreover, the implementation of the
DAP entailed the allocation and expenditure of huge sums of public funds. The fact that public
funds have been allocated, disbursed or utilized by reason or on account of such challenged
executive acts gave rise, therefore, to an actual controversy that is ripe for adjudication by the
Court.
It is true that Sec. Abad manifested during the January 28, 2014 oral arguments that the DAP as a
program had been meanwhile discontinued because it had fully served its purpose, saying: "In
conclusion, Your Honors, may I inform the Court that because the DAP has already fully served
its purpose, the Administration’s economic managers have recommended its termination to the
President. x x x."39
The Solicitor General then quickly confirmed the termination of the DAP as a program, and
urged that its termination had already mooted the challenges to the DAP’s constitutionality, viz:
DAP as a program, no longer exists, thereby mooting these present cases brought to challenge its
constitutionality. Any constitutional challenge should no longer be at the level of the program,
which is now extinct, but at the level of its prior applications or the specific disbursements under
the now defunct policy. We challenge the petitioners to pick and choose which among the 116
DAP projects they wish to nullify, the full details we will have provided by February 5. We urge
this Court to be cautious in limiting the constitutional authority of the President and the
Legislature to respond to the dynamic needs of the country and the evolving demands of
governance, lest we end up straight jacketing our elected representatives in ways not consistent
with our constitutional structure and democratic principles.40
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
The Court cannot agree that the termination of the DAP as a program was a supervening event
that effectively mooted these consolidated cases. Verily, the Court had in the past exercised its
power of judicial review despite the cases being rendered moot and academic by supervening
events, like: (1) when there was a grave violation of the Constitution; (2) when the case involved
a situation of exceptional character and was of paramount public interest; (3) when the
constitutional issue raised required the formulation of controlling principles to guide the Bench,
the Bar and the public; and (4) when the case was capable of repetition yet evading review.42
Assuming that the petitioners’ several submissions against the DAP were ultimately sustained by
the Court here, these cases would definitely come under all the exceptions. Hence, the Court
should not abstain from exercising its power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review, refers to "a right of appearance
in a court of justice on a given question."43 The concept of legal standing, or locus standi, was
particularly discussed in De Castro v. Judicial and Bar Council,44 where the Court said:
In public or constitutional litigations, the Court is often burdened with the determination of the
locus standi of the petitioners due to the ever-present need to regulate the invocation of the
intervention of the Court to correct any official action or policy in order to avoid obstructing the
efficient functioning of public officials and offices involved in public service. It is required,
therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as
indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions." Accordingly, it has been held that the interest of a person assailing the
constitutionality of a statute must be direct and personal. He must be able to show, not only that
the law or any government act is invalid, but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for
determining whether a petitioner in a public action had locus standi. There, the Court held that
the person who would assail the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result." Vera was
followed in Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De
la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual v. Secretary of Public
Works.
Yet, the Court has also held that the requirement of locus standi, being a mere procedural
technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in
Araneta v. Dinglasan, the Court liberalized the approach when the cases had "transcendental
importance." Some notable controversies whose petitioners did not pass the direct injury test
were allowed to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the
issues raised by the petition due to their "far reaching implications," even if the petitioner had no
personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been
adopted in several notable cases, permitting ordinary citizens, legislators, and civic organizations
to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner represents
the public in general. Although such petitioner may not be as adversely affected by the action
complained against as are others, it is enough that he sufficiently demonstrates in his petition that
he is entitled to protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus
standi. That is not surprising, for even if the issue may appear to concern only the public in
general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David
v. Macapagal-Arroyo, the Court aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the
plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but
the mere instrument of the public concern. As held by the New York Supreme Court in People ex
rel Case v. Collins: "In matter of mere public right, however…the people are the real parties…It
is at least the right, if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied." With respect to
taxpayer’s suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his injury cannot be denied."45
The Court has cogently observed in Agan, Jr. v. Philippine International Air Terminals Co.,
Inc.46 that "[s]tanding is a peculiar concept in constitutional law because in some cases, suits are
not brought by parties who have been personally injured by the operation of a law or any other
government act but by concerned citizens, taxpayers or voters who actually sue in the public
interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have invoked their
capacities as taxpayers who, by averring that the issuance and implementation of the DAP and its
relevant issuances involved the illegal disbursements of public funds, have an interest in
preventing the further dissipation of public funds. The petitioners in G.R. No. 209287 (Araullo)
and G.R. No. 209442 (Belgica) also assert their right as citizens to sue for the enforcement and
observance of the constitutional limitations on the political branches of the Government.47
On its part, PHILCONSA simply reminds that the Court has long recognized its legal standing to
bring cases upon constitutional issues.48 Luna, the petitioner in G.R. No. 209136, cites his
additional capacity as a lawyer. The IBP, the petitioner in G.R. No. 209260, stands by "its
avowed duty to work for the rule of law and of paramount importance of the question in this
action, not to mention its civic duty as the official association of all lawyers in this country."49
Under their respective circumstances, each of the petitioners has established sufficient interest in
the outcome of the controversy as to confer locus standi on each of them.
In addition, considering that the issues center on the extent of the power of the Chief Executive
to disburse and allocate public funds, whether appropriated by Congress or not, these cases pose
issues that are of transcendental importance to the entire Nation, the petitioners included. As
such, the determination of such important issues call for the Court’s exercise of its broad and
wise discretion "to waive the requirement and so remove the impediment to its addressing and
resolving the serious constitutional questions raised."50
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the Court in properly
appreciating and justly resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that had derived from the
Latin word bulga (which means bag or purse).51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act) defined "budget" as
the financial program of the National Government for a designated fiscal year, consisting of the
statements of estimated receipts and expenditures for the fiscal year for which it was intended to
be effective based on the results of operations during the preceding fiscal years. The term was
given a different meaning under Republic Act No. 992 (Revised Budget Act) by describing the
budget as the delineation of the services and products, or benefits that would accrue to the public
together with the estimated unit cost of each type of service, product or benefit.52 For a
forthright definition, budget should simply be identified as the financial plan of the
Government,53 or "the master plan of government."54
The concept of budgeting has not been the product of recent economies. In reality, financing
public goals and activities was an idea that existed from the creation of the State.55 To protect
the people, the territory and sovereignty of the State, its government must perform vital functions
that required public expenditures. At the beginning, enormous public expenditures were spent for
war activities, preservation of peace and order, security, administration of justice, religion, and
supply of limited goods and services.56 In order to finance those expenditures, the State raised
revenues through taxes and impositions.57 Thus, budgeting became necessary to allocate public
revenues for specific government functions.58 The State’s budgeting mechanism eventually
developed through the years with the growing functions of its government and changes in its
market economy.
The Philippine Budget System has been greatly influenced by western public financial
institutions. This is because of the country’s past as a colony successively of Spain and the
United States for a long period of time. Many aspects of the country’s public fiscal
administration, including its Budget System, have been naturally patterned after the practices and
experiences of the western public financial institutions. At any rate, the Philippine Budget
System is presently guided by two principal objectives that are vital to the development of a
progressive democratic government, namely: (1) to carry on all government activities under a
comprehensive fiscal plan developed, authorized and executed in accordance with the
Constitution, prevailing statutes and the principles of sound public management; and (2) to
provide for the periodic review and disclosure of the budgetary status of the Government in such
detail so that persons entrusted by law with the responsibility as well as the enlightened citizenry
can determine the adequacy of the budget actions taken, authorized or proposed, as well as the
true financial position of the Government.59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early years of the American Regime up
to the passage of the Jones Law in 1916. A Budget Office was created within the Department of
Finance by the Jones Law to discharge the budgeting function, and was given the responsibility
to assist in the preparation of an executive budget for submission to the Philippine Legislature.60
As early as under the 1935 Constitution, a budget policy and a budget procedure were
established, and subsequently strengthened through the enactment of laws and executive acts.61
EO No. 25, issued by President Manuel L. Quezon on April 25, 1936, created the Budget
Commission to serve as the agency that carried out the President’s responsibility of preparing the
budget.62 CA No. 246, the first budget law, went into effect on January 1, 1938 and established
the Philippine budget process. The law also provided a line-item budget as the framework of the
Government’s budgeting system,63 with emphasis on the observance of a "balanced budget" to
tie up proposed expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954 of Republic Act (RA)
No. 992,whereby Congress introduced performance-budgeting to give importance to functions,
projects and activities in terms of expected results.64 RA No. 992 also enhanced the role of the
Budget Commission as the fiscal arm of the Government.65
The 1973 Constitution and various presidential decrees directed a series of budgetary reforms
that culminated in the enactment of PD No. 1177 that President Marcos issued on July30, 1977,
and of PD No. 1405, issued on June 11, 1978. The latter decree converted the Budget
Commission into the Ministry of Budget, and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and Management (OBM) under
EO No. 711. The OBM became the DBM pursuant to EO No. 292 effective on November 24,
1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1) Budget Preparation; (2)
Budget Legislation; (3) Budget Execution; and (4) Accountability. Each phase is distinctly
separate from the others but they overlap in the implementation of the budget during the budget
year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a Budget Call by the DBM.
The Budget Call contains budget parameters earlier set by the Development Budget Coordination
Committee (DBCC) as well as policy guidelines and procedures to aid government agencies in
the preparation and submission of their budget proposals. The Budget Call is of two kinds,
namely: (1) a National Budget Call, which is addressed to all agencies, including state
universities and colleges; and (2) a Corporate Budget Call, which is addressed to all government-
owned and -controlled corporations (GOCCs) and government financial institutions (GFIs).
Following the issuance of the Budget Call, the various departments and agencies submit their
respective Agency Budget Proposals to the DBM. To boost citizen participation, the current
administration has tasked the various departments and agencies to partner with civil society
organizations and other citizen-stakeholders in the preparation of the Agency Budget Proposals,
which proposals are then presented before a technical panel of the DBM in scheduled budget
hearings wherein the various departments and agencies are given the opportunity to defend their
budget proposals. DBM bureaus thereafter review the Agency Budget Proposals and come up
with recommendations for the Executive Review Board, comprised by the DBM Secretary and
the DBM’s senior officials. The discussions of the Executive Review Board cover the
prioritization of programs and their corresponding support vis-à-vis the priority agenda of the
National Government, and their implementation.
The DBM next consolidates the recommended agency budgets into the National Expenditure
Program (NEP)and a Budget of Expenditures and Sources of Financing (BESF). The NEP
provides the details of spending for each department and agency by program, activity or project
(PAP), and is submitted in the form of a proposed GAA. The Details of Selected Programs and
Projects is the more detailed disaggregation of key PAPs in the NEP, especially those in line
with the National Government’s development plan. The Staffing Summary provides the staffing
complement of each department and agency, including the number of positions and amounts
allocated.
The NEP and BESF are thereafter presented by the DBM and the DBCC to the President and the
Cabinet for further refinements or reprioritization. Once the NEP and the BESF are approved by
the President and the Cabinet, the DBM prepares the budget documents for submission to
Congress. The budget documents consist of: (1) the President’s Budget Message, through which
the President explains the policy framework and budget priorities; (2) the BESF, mandated by
Section 22, Article VII of the Constitution,68 which contains the macroeconomic assumptions,
public sector context, breakdown of the expenditures and funding sources for the fiscal year and
the two previous years; and (3) the NEP.
Public or government expenditures are generally classified into two categories, specifically: (1)
capital expenditures or outlays; and (2) current operating expenditures. Capital expenditures are
the expenses whose usefulness lasts for more than one year, and which add to the assets of the
Government, including investments in the capital of government-owned or controlled
corporations and their subsidiaries.69 Current operating expenditures are the purchases of goods
and services in current consumption the benefit of which does not extend beyond the fiscal
year.70 The two components of current expenditures are those for personal services (PS), and
those for maintenance and other operating expenses(MOOE).
Public expenditures are also broadly grouped according to their functions into: (1) economic
development expenditures (i.e., expenditures on agriculture and natural resources, transportation
and communications, commerce and industry, and other economic development efforts);71 (2)
social services or social development expenditures (i.e., government outlay on education, public
health and medicare, labor and welfare and others);72 (3) general government or general public
services expenditures (i.e., expenditures for the general government, legislative services, the
administration of justice, and for pensions and gratuities);73 (4) national defense expenditures
(i.e., sub-divided into national security expenditures and expenditures for the maintenance of
peace and order);74 and (5) public debt.75
Public expenditures may further be classified according to the nature of funds, i.e., general fund,
special fund or bond fund.76
On the other hand, public revenues complement public expenditures and cover all income or
receipts of the government treasury used to support government expenditures.77
Classical economist Adam Smith categorized public revenues based on two principal sources,
stating: "The revenue which must defray…the necessary expenses of government may be drawn
either, first from some fund which peculiarly belongs to the sovereign or commonwealth, and
which is independent of the revenue of the people, or, secondly, from the revenue of the
people."78 Adam Smith’s classification relied on the two aspects of the nature of the State: first,
the State as a juristic person with an artificial personality, and, second, the State as a sovereign or
entity possessing supreme power. Under the first aspect, the State could hold property and
engage in trade, thereby deriving what is called its quasi private income or revenues, and which
"peculiarly belonged to the sovereign." Under the second aspect, the State could collect by
imposing charges on the revenues of its subjects in the form of taxes.79
In the Philippines, public revenues are generally derived from the following sources, to wit: (1)
tax revenues(i.e., compulsory contributions to finance government activities); 80 (2) capital
revenues(i.e., proceeds from sales of fixed capital assets or scrap thereof and public domain, and
gains on such sales like sale of public lands, buildings and other structures, equipment, and other
properties recorded as fixed assets); 81 (3) grants(i.e., voluntary contributions and aids given to
the Government for its operation on specific purposes in the form of money and/or materials, and
do not require any monetary commitment on the part of the recipient);82 (4) extraordinary
income(i.e., repayment of loans and advances made by government corporations and local
governments and the receipts and shares in income of the Banko Sentral ng Pilipinas, and other
receipts);83 and (5) public borrowings(i.e., proceeds of repayable obligations generally with
interest from domestic and foreign creditors of the Government in general, including the
National Government and its political subdivisions).84
More specifically, public revenues are classified as follows:85
General Income Specific Income

1. Subsidy Income from National 1. Income Taxes
Government 2. Property Taxes
2. Subsidy from Central Office 3. Taxes on Goods and Services
3. Subsidy from Regional 4. Taxes on International Trade
Office/Staff Bureaus and
4. Income from Government Transactions
Services 5. Other Taxes 6.Fines and
5. Income from Government Penalties-Tax Revenue
Business Operations 7. Other Specific Income
6. Sales Revenue
7. Rent Income
8. Insurance Income
9. Dividend Income
10. Interest Income
11. Sale of Confiscated Goods and
Properties
12. Foreign Exchange (FOREX)
Gains
13. Miscellaneous Operating and
Service Income
14. Fines and Penalties-
Government
Services and Business
Operations
15. Income from Grants and
Donations
c.2. Budget Legislation86

The Budget Legislation Phase covers the period commencing from the time Congress receives
the President’s Budget, which is inclusive of the NEPand the BESF, up to the President’s
approval of the GAA. This phase is also known as the Budget Authorization Phase, and involves
the significant participation of the Legislative through its deliberations.
Initially, the President’s Budget is assigned to the House of Representatives’ Appropriations

Committee on First Reading. The Appropriations Committee and its various Sub-Committees
schedule and conduct budget hearings to examine the PAPs of the departments and agencies.
Thereafter, the House of Representatives drafts the General Appropriations Bill (GAB).87
The GABis sponsored, presented and defended by the House of Representatives’ Appropriations
Committee and Sub-Committees in plenary session. As with other laws, the GAB is approved on
Third Reading before the House of Representatives’ version is transmitted to the Senate.88
After transmission, the Senate conducts its own committee hearings on the GAB. To expedite
proceedings, the Senate may conduct its committee hearings simultaneously with the House of
Representatives’ deliberations. The Senate’s Finance Committee and its Sub-Committees may
submit the proposed amendments to the GAB to the plenary of the Senate only after the House of
Representatives has formally transmitted its version to the Senate. The Senate version of the
GAB is likewise approved on Third Reading.89
The House of Representatives and the Senate then constitute a panel each to sit in the Bicameral
Conference Committee for the purpose of discussing and harmonizing the conflicting provisions
of their versions of the GAB. The "harmonized" version of the GAB is next presented to the
President for approval.90 The President reviews the GAB, and prepares the Veto Message where
budget items are subjected to direct veto,91 or are identified for conditional implementation.
If, by the end of any fiscal year, the Congress shall have failed to pass the GAB for the ensuing
fiscal year, the GAA for the preceding fiscal year shall be deemed re-enacted and shall remain in
force and effect until the GAB is passed by the Congress.92
c.3. Budget Execution93
With the GAA now in full force and effect, the next step is the implementation of the budget.
The Budget Execution Phase is primarily the function of the DBM, which is tasked to perform
the following procedures, namely: (1) to issue the programs and guidelines for the release of
funds; (2) to prepare an Allotment and Cash Release Program; (3) to release allotments; and (4)
to issue disbursement authorities.
The implementation of the GAA is directed by the guidelines issued by the DBM. Prior to this,
the various departments and agencies are required to submit Budget Execution Documents(BED)
to outline their plans and performance targets by laying down the physical and financial plan, the
monthly cash program, the estimate of monthly income, and the list of obligations that are not
yet due and demandable.
Thereafter, the DBM prepares an Allotment Release Program (ARP)and a Cash Release Program
(CRP).The ARP sets a limit for allotments issued in general and to a specific agency. The CRP
fixes the monthly, quarterly and annual disbursement levels.
Allotments, which authorize an agency to enter into obligations, are issued by the DBM.
Allotments are lesser in scope than appropriations, in that the latter embrace the general
legislative authority to spend. Allotments may be released in two forms – through a
comprehensive Agency Budget Matrix (ABM),94 or, individually, by SARO.95
Armed with either the ABM or the SARO, agencies become authorized to incur obligations96 on
behalf of the Government in order to implement their PAPs. Obligations may be incurred in
various ways, like hiring of personnel, entering into contracts for the supply of goods and
services, and using utilities.
In order to settle the obligations incurred by the agencies, the DBM issues a disbursement
authority so that cash may be allocated in payment of the obligations. A cash or disbursement
authority that is periodically issued is referred to as a Notice of Cash Allocation (NCA),97 which
issuance is based upon an agency’s submission of its Monthly Cash Program and other required
documents. The NCA specifies the maximum amount of cash that can be withdrawn from a
government servicing bank for the period indicated. Apart from the NCA, the DBM may issue a
Non-Cash Availment Authority(NCAA) to authorize non-cash disbursements, or a Cash
Disbursement Ceiling(CDC) for departments with overseas operations to allow the use of income
collected by their foreign posts for their operating requirements.
Actual disbursement or spending of government funds terminates the Budget Execution Phase
and is usually accomplished through the Modified Disbursement Scheme under which
disbursements chargeable against the National Treasury are coursed through the government
servicing banks.
c.4. Accountability98
Accountability is a significant phase of the budget cycle because it ensures that the government
funds have been effectively and efficiently utilized to achieve the State’s socio-economic goals.
It also allows the DBM to assess the performance of agencies during the fiscal year for the
purpose of implementing reforms and establishing new policies.
An agency’s accountability may be examined and evaluated through (1) performance targets and
outcomes; (2) budget accountability reports; (3) review of agency performance; and (4) audit
conducted by the Commission on Audit(COA).
2.
Nature of the DAP as a fiscal plan
a. DAP was a program designed to

promote economic growth
Policy is always a part of every budget and fiscal decision of any Administration.99 The national
budget the Executive prepares and presents to Congress represents the Administration’s
"blueprint for public policy" and reflects the Government’s goals and strategies.100 As such, the
national budget becomes a tangible representation of the programs of the Government in
monetary terms, specifying therein the PAPs and services for which specific amounts of public
funds are proposed and allocated.101 Embodied in every national budget is government
spending.102
When he assumed office in the middle of 2010, President Aquino made efficiency and
transparency in government spending a significant focus of his Administration. Yet, although
such focus resulted in an improved fiscal deficit of 0.5% in the gross domestic product (GDP)
from January to July of 2011, it also unfortunately decelerated government project
implementation and payment schedules.103 The World Bank observed that the Philippines’
economic growth could be reduced, and potential growth could be weakened should the
Government continue with its underspending and fail to address the large deficiencies in
infrastructure.104 The economic situation prevailing in the middle of 2011 thus paved the way
for the development and implementation of the DAP as a stimulus package intended to fast-track
public spending and to push economic growth by investing on high-impact budgetary PAPs to be
funded from the "savings" generated during the year as well as from unprogrammed funds.105 In
that respect, the DAP was the product of "plain executive policy-making" to stimulate the
economy by way of accelerated spending.106 The Administration would thereby accelerate
government spending by: (1) streamlining the implementation process through the clustering of
infrastructure projects of the Department of Public Works and Highways (DPWH) and the
Department of Education (DepEd),and (2) front loading PPP-related projects107 due for
implementation in the following year.108
Did the stimulus package work?
The March 2012 report of the World Bank,109 released after the initial implementation of the
DAP, revealed that the DAP was partially successful. The disbursements under the DAP
contributed 1.3 percentage points to GDP growth by the fourth quarter of 2011.110 The
continued implementation of the DAP strengthened growth by 11.8% year on year while
infrastructure spending rebounded from a 29% contraction to a 34% growth as of September
2013.111
The DAP thus proved to be a demonstration that expenditure was a policy instrument that the
Government could use to direct the economies towards growth and development.112 The
Government, by spending on public infrastructure, would signify its commitment of ensuring
profitability for prospective investors.113 The PAPs funded under the DAP were chosen for this
reason based on their: (1) multiplier impact on the economy and infrastructure development; (2)
beneficial effect on the poor; and (3) translation into disbursements.114
b. History of the implementation of

the DAP, and sources of funds
under the DAP
How the Administration’s economic managers conceptualized and developed the DAP, and
finally presented it to the President remains unknown because the relevant documents appear to
be scarce.
The earliest available document relating to the genesis of the DAP was the memorandum of
October 12,2011 from Sec. Abad seeking the approval of the President to implement the
proposed DAP. The memorandum, which contained a list of the funding sources for P72.11
billion and of the proposed priority projects to be funded,115 reads:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM

(PROJECTS AND SOURCES OF FUNDS)
DATE: OCTOBER 12, 2011
Mr. President, this is to formally confirm your approval of the Disbursement Acceleration
Program totaling P72.11 billion. We are already working with all the agencies concerned for the
immediate execution of the projects therein.
A. Fund Sources for the Acceleration Program
Amount
(In Action
Fund Sources Description
million Requested
Php)
FY 2011 30,000 Unreleased Declare as
Unreleased Personnel savings and
Personal Services (PS) approve/
Services (PS) appropriations authorize its
Appropriations which use
will lapse at the for the 2011
end of Disbursement
FY 2011 but Acceleration
may be Program
pooled as
savings and
realigned for
priority
programs that
require
immediate
funding
FY 2011 482 Unreleased
Unreleased appropriations
Appropriations (slow
moving projects
and
programs for
discontinuance)
FY 2010 12,336 Supported by Approve and
Unprogrammed the GFI authorize its
Fund Dividends use
for the 2011
Disbursement
Acceleration
Program
FY 2010 21,544 Unreleased With prior
Carryover appropriations approval
Appropriation (slow from
moving projects the President
and in
programs for November
discontinuance) 2010
and to declare as
savings from savings and
Zero-based with
Budgeting authority to
Initiative use
for priority
projects
FY 2011 7,748 FY 2011 For
Budget Agency information
items for Budget items
realignment that can
be realigned
within the
agency to fund
new fast
disbursing
projects
DPWH-3.981
Billion
DA – 2.497
Billion
DOT – 1.000
Billion
DepEd – 270
Million
TOTAL 72.110
B. Projects in the Disbursement Acceleration Program
(Descriptions of projects attached as Annex A)
GOCCs and GFIs

Agency/Project Allotment
(SARO and NCA Release) (in Million
Php)
1. LRTA: Rehabilitation of LRT 1 1,868
and 2
2. NHA: 11,050
450
a. Resettlement of North Triangle
residents to
500
Camarin A7
10,000
b. Housing for BFP/BJMP
c. On-site development for families
100
living
along dangerous
d. Relocation sites for informal
settlers
along Iloilo River and its tributaries
3. PHIL. HEART CENTER: 357
Upgrading of
ageing physical plant and medical
equipment
4. CREDIT INFO CORP: 75
Establishment of
centralized credit information
system
5. PIDS: purchase of land to relocate 100
the PIDS
office and building construction
6. HGC: Equity infusion for credit 400
insurance
and mortgage guaranty operations of
HGC
7. PHIC: Obligations incurred 1,496
(premium
subsidy for indigent families) in
January-June
2010, booked for payment in Jul[y]
– Dec
2010. The delay in payment is due to
the
delay in the certification of the LGU
counterpart. Without it, the NG is
obliged to
pay the full amount.
8. Philpost: Purchase of foreclosed 644
property.
Payment of Mandatory Obligations,
(GSIS,
PhilHealth, ECC), Franking
Privilege
9. BSP: First equity infusion out of 10,000
Php 40B
capitalization under the BSP Law
10. PCMC: Capital and Equipment 280
Renovation
11. LCOP: 105
a. Pediatric Pulmonary Program
35
b. Bio-regenerative Technology
Program 70
(Stem-Cell Research – subject to
legal
review and presentation)
12. TIDCORP: NG Equity infusion 570
TOTAL 26,945
NGAs/LGUs
Agency/Project Allotment
(SARO) Cash
(In Requirement
Million (NCA)
Php)
13. DOF-BIR: NPSTAR
centralization of data
processing and others
(To be
synchronized with 758 758
GFMIS
activities)
14. COA: IT
infrastructure
program and hiring of 144 144
additional litigational
experts
15. DND-PAF: On Base
Housing
Facilities and 30 30
Communication
Equipment
16. DA: 2,959 2,223
a. Irrigation, FMRs and
Integrated Community
Based Multi-Species
Hatchery and Aquasilvi 1,629 1,629
Farming
b. Mindanao Rural 919 183
Development Project
c. NIA Agno River
Integrated 411 411
Irrigation Project
17. DAR: 1,293 1,293
a. Agrarian Reform
Communities Project 2 1,293 132
b. Landowners 5,432
Compensation
18. DBM: Conduct of
National
Survey of 625 625
Farmers/Fisherfolks/Ips
19. DOJ: Operating
requirements
of 50 investigation 11 11
agents and
15 state attorneys
20. DOT: Preservation
of the Cine 25 25
Corregidor Complex
21. OPAPP: Activities
for Peace
Process (PAMANA-
Project
details: budget
breakdown, 1,819 1,819
implementation plan,
and
conditions on fund
release
attached as Annex B)
22. DOST 425 425
a. Establishment of
National
Meterological and 275 275
Climate
Center
b. Enhancement of
Doppler
Radar Network for 190 190
National
Weather Watch,
Accurate
Forecasting and Flood
Early
Warning
23. DOF-BOC: To settle
the
principal obligations
with
PDIC consistent with 2,800 2,800
the
agreement with the
CISS and
SGS
24. OEO-FDCP:
Establishment of
the National Film
Archive and 20 20
local cinematheques,
and other
local activities
25. DPWH: Various
infrastructure 5,500 5,500
projects
26.
DepEd/ERDT/DOST:
Thin 270 270
Client Cloud Computing
Project
27. DOH: Hiring of
nurses and 294 294
midwives
28. TESDA: Training
Program in
partnership with BPO 1,100 1,100
industry
and other sectors
29. DILG: Performance
Challenge
Fund (People
Empowered
Community Driven 250 50
Development with
DSWD and
NAPC)
30. ARMM:
Comprehensive Peace 8,592 8,592
and Development
Intervention
31. DOTC-MRT:
Purchase of 4,500 -
additional MRT cars
32. LGU Support Fund 6,500 6,500
33. Various Other Local 6,500 6,500
Projects
34. Development
Assistance to the 750 750
Province of Quezon
TOTAL 45,165 44,000
C. Summary
Fund
Sources Allotments Cash
Identified for Requirements
for Release for
Approval Release in
(In FY
Million 2011
Php)
Total 72,110 72,110 70,895
GOCCs 26,895 26,895
NGAs/LGUs 45,165 44,000
For His Excellency’s Consideration
(Sgd.) FLORENCIO B. ABAD
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
OCT 12, 2011
The memorandum of October 12, 2011 was followed by another memorandum for the President
dated December 12, 2011116 requesting omnibus authority to consolidate the savings and
unutilized balances for fiscal year 2011. Pertinent portions of the memorandum of December 12,
2011 read:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances and its Realignment
DATE: December 12, 2011
This is to respectfully request for the grant of Omnibus Authority to consolidate

savings/unutilized balances in FY 2011 corresponding to completed or discontinued projects
which may be pooled to fund additional projects or expenditures.
In addition, Mr. President, this measure will allow us to undertake projects even if their
implementation carries over to 2012 without necessarily impacting on our budget deficit cap next
year.
BACKGROUND
1.0 The DBM, during the course of performance reviews conducted on the
agencies’ operations, particularly on the implementation of their
projects/activities, including expenses incurred in undertaking the same, have
identified savings out of the 2011 General Appropriations Act. Said savings
correspond to completed or discontinued projects under certain
departments/agencies which may be pooled, for the following:
1.1 to provide for new activities which have not been anticipated during
preparation of the budget;
1.2 to augment additional requirements of on-going priority projects; and
1.3 to provide for deficiencies under the Special Purpose Funds, e.g.,
PDAF, Calamity Fund, Contingent Fund
1.4 to cover for the modifications of the original allotment class allocation
as a result of on-going priority projects and implementation of new
activities
2.0 x x x x
2.1 x x x
2.2 x x x
ON THE UTILIZATION OF POOLED SAVINGS
3.0 It may be recalled that the President approved our request for omnibus
authority to pool savings/unutilized balances in FY 2010 last November 25, 2010.
4.0 It is understood that in the utilization of the pooled savings, the DBM shall
secure the corresponding approval/confirmation of the President. Furthermore, it
is assured that the proposed realignments shall be within the authorized
Expenditure level.
5.0 Relative thereto, we have identified some expenditure items that may be
sourced from the said pooled appropriations in FY 2010 that will expire on
December 31, 2011 and appropriations in FY 2011 that may be declared as
savings to fund additional expenditures.
5.1 The 2010 Continuing Appropriations (pooled savings) is proposed to
be spent for the projects that we have identified to be immediate actual
disbursements considering that this same fund source will expire on
December 31, 2011.
5.2 With respect to the proposed expenditure items to be funded from the
FY 2011 Unreleased Appropriations, most of these are the same projects
for which the DBM is directed by the Office of the President, thru the
Executive Secretary, to source funds.
6.0 Among others, the following are such proposed additional projects that have
been chosen given their multiplier impact on economy and infrastructure
development, their beneficial effect on the poor, and their translation into
disbursements. Please note that we have classified the list of proposed projects as
follows:
7.0 x x x
FOR THE PRESIDENT’S APPROVAL
8.0 Foregoing considered, may we respectfully request for the President’s

approval for the following:
8.1 Grant of omnibus authority to consolidate FY 2011 savings/unutilized

balances and its realignment; and
8.2 The proposed additional projects identified for funding.
For His Excellency’s consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and to fund proposed projects were
contained in various other memoranda from Sec. Abad dated June 25, 2012,117 September 4,
2012,118 December 19, 2012,119 May 20, 2013,120 and September 25, 2013.121 The President
apparently approved all the requests, withholding approval only of the proposed projects
contained in the June 25, 2012 memorandum, as borne out by his marginal note therein to the
effect that the proposed projects should still be "subject to further discussions."122
In order to implement the June25, 2012 memorandum, Sec. Abad issued NBC No. 541
(Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated
Allotments as of June 30, 2012),123 reproduced herein as follows:
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
TO: All Heads of Departments/Agencies/State Universities and Colleges and other Offices of the
National Government, Budget and Planning Officers; Heads of Accounting Units and All Others
Concerned
SUBJECT : Adoption of Operational Efficiency Measure – Withdrawal of Agencies’

Unobligated Allotments as of June 30, 2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292 (Administrative Code of 1987),
periodically reviews and evaluates the departments/agencies’ efficiency and effectiveness in
utilizing budgeted funds for the delivery of services and production of goods, consistent with the
government priorities.
In the event that a measure is necessary to further improve the operational efficiency of the
government, the President is authorized to suspend or stop further use of funds allotted for any
agency or expenditure authorized in the General Appropriations Act. Withdrawal and pooling of
unutilized allotment releases can be effected by DBM based on authority of the President, as
mandated under Sections 38 and 39, Chapter 5, Book VI of EO 292.
For the first five months of 2012, the National Government has not met its spending targets. In
order to accelerate spending and sustain the fiscal targets during the year, expenditure measures
have to be implemented to optimize the utilization of available resources.
Departments/agencies have registered low spending levels, in terms of obligations and

disbursements per initial review of their 2012 performance. To enhance agencies’ performance,
the DBM conducts continuous consultation meetings and/or send call-up letters, requesting them
to identify slow-moving programs/projects and the factors/issues affecting their performance
(both pertaining to internal systems and those which are outside the agencies’ spheres of
control). Also, they are asked to formulate strategies and improvement plans for the rest of 2012.
Notwithstanding these initiatives, some departments/agencies have continued to post low

obligation levels as of end of first semester, thus resulting to substantial unobligated allotments.
In line with this, the President, per directive dated June 27, 2012 authorized the withdrawal of
unobligated allotments of agencies with low levels of obligations as of June 30, 2012, both for
continuing and current allotments. This measure will allow the maximum utilization of available
allotments to fund and undertake other priority expenditures of the national government.
2.0 Purpose
2.1 To provide the conditions and parameters on the withdrawal of unobligated

allotments of agencies as of June 30, 2012 to fund priority and/or fast-moving
programs/projects of the national government;
2.2 To prescribe the reports and documents to be used as bases on the withdrawal
of said unobligated allotments; and
2.3 To provide guidelines in the utilization or reallocation of the withdrawn

allotments.
3.0 Coverage
3.1 These guidelines shall cover the withdrawal of unobligated allotments as of

June 30, 2012 of all national government agencies (NGAs) charged against FY
2011 Continuing Appropriation (R.A. No.10147) and FY 2012 Current
Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the

implementation of programs and projects, as well as capitalized MOOE;
and
3.1.3 Personal Services corresponding to unutilized pension benefits

declared as savings by the agencies concerned based on their
updated/validated list of pensioners.
3.2 The withdrawal of unobligated allotments may cover the identified programs,
projects and activities of the departments/agencies reflected in the DBM list
shown as Annex A or specific programs and projects as may be identified by the
agencies.
4.0 Exemption
These guidelines shall not apply to the following:
4.1 NGAs
4.1.1 Constitutional Offices/Fiscal Autonomy Group, granted fiscal

autonomy under the Philippine Constitution; and
4.1.2 State Universities and Colleges, adopting the Normative Funding

allocation scheme i.e., distribution of a predetermined budget ceiling.
4.2 Fund Sources
4.2.1 Personal Services other than pension benefits;
4.2.2 MOOE items earmarked for specific purposes or subject to

realignment conditions per General Provisions of the GAA:
• Confidential and Intelligence Fund;
• Savings from Traveling, Communication, Transportation and

Delivery, Repair and Maintenance, Supplies and Materials and
Utility which shall be used for the grant of Collective Negotiation
Agreement incentive benefit;
• Savings from mandatory expenditures which can be realigned

only in the last quarter after taking into consideration the agency’s
full year requirements, i.e., Petroleum, Oil and Lubricants, Water,
Illumination, Power Services, Telephone, other Communication
Services and Rent.
4.2.3 Foreign-Assisted Projects (loan proceeds and peso counterpart);
4.2.4 Special Purpose Funds such as: E-Government Fund, International

Commitments Fund, PAMANA, Priority Development Assistance Fund,
Calamity Fund, Budgetary Support to GOCCs and Allocation to LGUs,
among others;
4.2.5 Quick Response Funds; and
4.2.6 Automatic Appropriations i.e., Retirement Life Insurance Premium

and Special Accounts in the General Fund.
5.0 Guidelines
5.1 National government agencies shall continue to undertake procurement

activities notwithstanding the implementation of the policy of withdrawal of
unobligated allotments until the end of the third quarter, FY 2012. Even without
the allotments, the agency shall proceed in undertaking the procurement processes
(i.e., procurement planning up to the conduct of bidding but short of awarding of
contract) pursuant to GPPB Circular Nos. 02-2008 and 01-2009 and DBM
Circular Letter No. 2010-9.
5.2 For the purpose of determining the amount of unobligated allotments that
shall be withdrawn, all departments/agencies/operating units (OUs) shall submit
to DBM not later than July 30, 2012, the following budget accountability reports
as of June 30, 2012;
• Statement of Allotments, Obligations and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this
Circular, the agency’s latest report available shall be used by DBM as basis for
withdrawal of allotment. The DBM shall compute/approximate the agency’s
obligation level as of June 30 to derive its unobligated allotments as of same
period. Example: If the March 31 SAOB or FRO reflects actual obligations of P
800M then the June 30 obligation level shall approximate to P1,600 M (i.e., P800
M x 2 quarters).
5.4 All released allotments in FY 2011 charged against R.A. No. 10147 which
remained unobligated as of June 30, 2012 shall be immediately considered for
withdrawal. This policy is based on the following considerations:
5.4.1 The departments/agencies’ approved priority programs and projects

are assumed to be implementation-ready and doable during the given
fiscal year; and
5.4.2 The practice of having substantial carryover appropriations may

imply that the agency has a slower-than-programmed implementation
capacity or agency tends to implement projects within a two-year
timeframe.
5.5. Consistent with the President’s directive, the DBM shall, based on evaluation
of the reports cited above and results of consultations with the
departments/agencies, withdraw the unobligated allotments as of June 30, 2012
through issuance of negative Special Allotment Release Orders (SAROs).
5.6 DBM shall prepare and submit to the President, a report on the magnitude of
withdrawn allotments. The report shall highlight the agencies which failed to
submit the June 30 reports required under this Circular.
5.7 The withdrawn allotments may be:
5.7.1 Reissued for the original programs and projects of the agencies/OUs
concerned, from which the allotments were withdrawn;
5.7.2 Realigned to cover additional funding for other existing programs

and projects of the agency/OU; or
5.7.3 Used to augment existing programs and projects of any agency and
to fund priority programs and projects not considered in the 2012 budget
but expected to be started or implemented during the current year.
5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs concerned may submit to
DBM a Special Budget Request (SBR), supported with the following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
5.8.3 Proof that the project/activity has started the procurement processes
i.e., Proof of Posting and/or Advertisement of the Invitation to Bid.
5.9 The deadline for submission of request/s pertaining to these categories shall
be until the end of the third quarter i.e., September 30, 2012. After said cut-off
date, the withdrawn allotments shall be pooled and form part of the overall
savings of the national government.
5.10 Utilization of the consolidated withdrawn allotments for other priority

programs and projects as cited under item 5.7.3 of this Circular, shall be subject to
approval of the President. Based on the approval of the President, DBM shall
issue the SARO to cover the approved priority expenditures subject to submission
by the agency/OU concerned of the SBR and supported with PFP and MCP.
5.11 It is understood that all releases to be made out of the withdrawn allotments
(both 2011 and 2012 unobligated allotments) shall be within the approved
Expenditure Program level of the national government for the current year. The
SAROs to be issued shall properly disclose the appropriation source of the release
to determine the extent of allotment validity, as follows:
• For charges under R.A. 10147 – allotments shall be valid up to

December 31, 2012; and
• For charges under R.A. 10155 – allotments shall be valid up to

December 31, 2013.
5.12 Timely compliance with the submission of existing BARs and other
reportorial requirements is reiterated for monitoring purposes.
6.0 Effectivity
This circular shall take effect immediately.
(Sgd.) FLORENCIO B. ABAD

Secretary
As can be seen, NBC No. 541 specified that the unobligated allotments of all agencies and
departments as of June 30, 2012 that were charged against the continuing appropriations for
fiscal year 2011 and the 2012 GAA (R.A. No. 10155) were subject to withdrawal through the
issuance of negative SAROs, but such allotments could be either: (1) reissued for the original
PAPs of the concerned agencies from which they were withdrawn; or (2) realigned to cover
additional funding for other existing PAPs of the concerned agencies; or (3) used to augment
existing PAPs of any agency and to fund priority PAPs not considered in the 2012 budget but
expected to be started or implemented in 2012. Financing the other priority PAPs was made
subject to the approval of the President. Note here that NBC No. 541 used terminologies like
"realignment" and "augmentation" in the application of the withdrawn unobligated allotments.
Taken together, all the issuances showed how the DAP was to be implemented and funded, that
is — (1) by declaring "savings" coming from the various departments and agencies derived from
pooling unobligated allotments and withdrawing unreleased appropriations; (2) releasing
unprogrammed funds; and (3) applying the "savings" and unprogrammed funds to augment
existing PAPs or to support other priority PAPs.
c. DAP was not an appropriation

measure; hence, no appropriation
law was required to adopt or to
implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did not enact a law to
establish the DAP, or to authorize the disbursement and release of public funds to implement the
DAP. Villegas, PHILCONSA, IBP, Araullo, and COURAGE observe that the appropriations
funded under the DAP were not included in the 2011, 2012 and 2013 GAAs. To petitioners IBP,
Araullo, and COURAGE, the DAP, being actually an appropriation that set aside public funds
for public use, should require an enabling law for its validity. VACC maintains that the DAP,
because it involved huge allocations that were separate and distinct from the GAAs,
circumvented and duplicated the GAAs without congressional authorization and control.
The petitioners contend in unison that based on how it was developed and implemented the DAP
violated the mandate of Section 29(1), Article VI of the 1987 Constitution that "[n]o money shall
be paid out of the Treasury except in pursuance of an appropriation made by law."
The OSG posits, however, that no law was necessary for the adoption and implementation of the
DAP because of its being neither a fund nor an appropriation, but a program or an administrative
system of prioritizing spending; and that the adoption of the DAP was by virtue of the authority
of the President as the Chief Executive to ensure that laws were faithfully executed.
We agree with the OSG’s position.
The DAP was a government policy or strategy designed to stimulate the economy through
accelerated spending. In the context of the DAP’s adoption and implementation being a function
pertaining to the Executive as the main actor during the Budget Execution Stage under its
constitutional mandate to faithfully execute the laws, including the GAAs, Congress did not need
to legislate to adopt or to implement the DAP. Congress could appropriate but would have
nothing more to do during the Budget Execution Stage. Indeed, appropriation was the act by
which Congress "designates a particular fund, or sets apart a specified portion of the public
revenue or of the money in the public treasury, to be applied to some general object of
governmental expenditure, or to some individual purchase or expense."124 As pointed out in
Gonzales v. Raquiza:125 ‘"In a strict sense, appropriation has been defined ‘as nothing more
than the legislative authorization prescribed by the Constitution that money may be paid out of
the Treasury,’ while appropriation made by law refers to ‘the act of the legislature setting apart
or assigning to a particular use a certain sum to be used in the payment of debt or dues from the
State to its creditors.’"126
On the other hand, the President, in keeping with his duty to faithfully execute the laws, had
sufficient discretion during the execution of the budget to adapt the budget to changes in the
country’s economic situation.127 He could adopt a plan like the DAP for the purpose. He could
pool the savings and identify the PAPs to be funded under the DAP. The pooling of savings
pursuant to the DAP, and the identification of the PAPs to be funded under the DAP did not
involve appropriation in the strict sense because the money had been already set apart from the
public treasury by Congress through the GAAs. In such actions, the Executive did not usurp the
power vested in Congress under Section 29(1), Article VI of the Constitution.
3.
Unreleased appropriations and withdrawn
unobligated allotments under the DAP
were not savings, and the use of such
appropriations contravened Section 25(5),
Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly adopted by the
Executive to ramp up spending to accelerate economic growth, the challenges posed by the
petitioners constrain us to dissect the mechanics of the actual execution of the DAP. The
management and utilization of the public wealth inevitably demands a most careful scrutiny of
whether the Executive’s implementation of the DAP was consistent with the Constitution, the
relevant GAAs and other existing laws.
a. Although executive discretion

and flexibility are necessary in
the execution of the budget, any
transfer of appropriated funds
should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot anticipate all issues and needs that
may come into play once the budget reaches its execution stage. Executive discretion is
necessary at that stage to achieve a sound fiscal administration and assure effective budget
implementation. The heads of offices, particularly the President, require flexibility in their
operations under performance budgeting to enable them to make whatever adjustments are
needed to meet established work goals under changing conditions.128 In particular, the power to
transfer funds can give the President the flexibility to meet unforeseen events that may otherwise
impede the efficient implementation of the PAPs set by Congress in the GAA.
Congress has traditionally allowed much flexibility to the President in allocating funds pursuant
to the GAAs,129 particularly when the funds are grouped to form lump sum accounts.130 It is
assumed that the agencies of the Government enjoy more flexibility when the GAAs provide
broader appropriation items.131 This flexibility comes in the form of policies that the Executive
may adopt during the budget execution phase. The DAP – as a strategy to improve the country’s
economic position – was one policy that the President decided to carry out in order to fulfill his
mandate under the GAAs.
Denying to the Executive flexibility in the expenditure process would be counterproductive. In

Presidential Spending Power,132 Prof. Louis Fisher, an American constitutional scholar whose
specialties have included budget policy, has justified extending discretionary authority to the
Executive thusly:
[T]he impulse to deny discretionary authority altogether should be resisted. There are many
number of reasons why obligations and outlays by administrators may have to differ from
appropriations by legislators. Appropriations are made many months, and sometimes years, in
advance of expenditures. Congress acts with imperfect knowledge in trying to legislate in fields
that are highly technical and constantly undergoing change. New circumstances will develop to
make obsolete and mistaken the decisions reached by Congress at the appropriation stage. It is
not practicable for Congress to adjust to each new development by passing separate
supplemental appropriation bills. Were Congress to control expenditures by confining
administrators to narrow statutory details, it would perhaps protect its power of the purse but it
would not protect the purse itself. The realities and complexities of public policy require
executive discretion for the sound management of public funds.
xxxx
x x x The expenditure process, by its very nature, requires substantial discretion for
administrators. They need to exercise judgment and take responsibility for their actions, but
those actions ought to be directed toward executing congressional, not administrative policy. Let
there be discretion, but channel it and use it to satisfy the programs and priorities established by
Congress.
In contrast, by allowing to the heads of offices some power to transfer funds within their
respective offices, the Constitution itself ensures the fiscal autonomy of their offices, and at the
same time maintains the separation of powers among the three main branches of the
Government. The Court has recognized this, and emphasized so in Bengzon v. Drilon,133 viz:
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional offices
allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy
and violative not only of the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of
our constitutional system is based.
In the case of the President, the power to transfer funds from one item to another within the
Executive has not been the mere offshoot of established usage, but has emanated from law itself.
It has existed since the time of the American Governors-General.134 Act No. 1902 (An Act
authorizing the Governor-General to direct any unexpended balances of appropriations be
returned to the general fund of the Insular Treasury and to transfer from the general fund moneys
which have been returned thereto), passed on May 18, 1909 by the First Philippine
Legislature,135 was the first enabling law that granted statutory authority to the President to
transfer funds. The authority was without any limitation, for the Act explicitly empowered the
Governor-General to transfer any unexpended balance of appropriations for any bureau or office
to another, and to spend such balance as if it had originally been appropriated for that bureau or
office.
From 1916 until 1920, the appropriations laws set a cap on the amounts of funds that could be
transferred, thereby limiting the power to transfer funds. Only 10% of the amounts appropriated
for contingent or miscellaneous expenses could be transferred to a bureau or office, and the
transferred funds were to be used to cover deficiencies in the appropriations also for
miscellaneous expenses of said bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred from items under miscellaneous
expenses to any other item of a certain bureau or office was removed.
During the Commonwealth period, the power of the President to transfer funds continued to be
governed by the GAAs despite the enactment of the Constitution in 1935. It is notable that the
1935 Constitution did not include a provision on the power to transfer funds. At any rate, a shift
in the extent of the President’s power to transfer funds was again experienced during this era,
with the President being given more flexibility in implementing the budget. The GAAs provided
that the power to transfer all or portions of the appropriations in the Executive Department could
be made in the "interest of the public, as the President may determine."136
In its time, the 1971 Constitutional Convention wanted to curtail the President’s seemingly
unbounded discretion in transferring funds.137 Its Committee on the Budget and Appropriation
proposed to prohibit the transfer of funds among the separate branches of the Government and
the independent constitutional bodies, but to allow instead their respective heads to augment
items of appropriations from savings in their respective budgets under certain limitations.138
The clear intention of the Convention was to further restrict, not to liberalize, the power to
transfer appropriations.139 Thus, the Committee on the Budget and Appropriation initially
considered setting stringent limitations on the power to augment, and suggested that the
augmentation of an item of appropriation could be made "by not more than ten percent if the
original item of appropriation to be augmented does not exceed one million pesos, or by not
more than five percent if the original item of appropriation to be augmented exceeds one million
pesos."140 But two members of the Committee objected to the P1,000,000.00 threshold, saying
that the amount was arbitrary and might not be reasonable in the future. The Committee agreed
to eliminate the P1,000,000.00 threshold, and settled on the ten percent limitation.141
In the end, the ten percent limitation was discarded during the plenary of the Convention, which
adopted the following final version under Section 16, Article VIII of the 1973 Constitution, to
wit:
(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the
Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may by law be authorized to augment any item in the general
appropriations law for their respective offices from savings in other items of their respective
appropriations.
The 1973 Constitution explicitly and categorically prohibited the transfer of funds from one item
to another, unless Congress enacted a law authorizing the President, the Prime Minister, the
Speaker, the Chief Justice of the Supreme Court, and the heads of the Constitutional omissions to
transfer funds for the purpose of augmenting any item from savings in another item in the GAA
of their respective offices. The leeway was limited to augmentation only, and was further
constricted by the condition that the funds to be transferred should come from savings from
another item in the appropriation of the office.142
On July 30, 1977, President Marcos issued PD No. 1177, providing in its Section 44 that:
Section 44. Authority to Approve Fund Transfers. The President shall have the authority to
transfer any fund appropriated for the different departments, bureaus, offices and agencies of the
Executive Department which are included in the General Appropriations Act, to any program,
project, or activity of any department, bureau or office included in the General Appropriations
Act or approved after its enactment.
The President shall, likewise, have the authority to augment any appropriation of the Executive
Department in the General Appropriations Act, from savings in the appropriations of another
department, bureau, office or agency within the Executive Branch, pursuant to the provisions of
Article VIII, Section 16 (5) of the Constitution.
In Demetria v. Alba, however, the Court struck down the first paragraph of Section 44 for
contravening Section 16(5)of the 1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege granted under said
Section 16. It empowers the President to indiscriminately transfer funds from one department,
bureau, office or agency of the Executive Department to any program, project or activity of any
department, bureau or office included in the General Appropriations Act or approved after its
enactment, without regard as to whether or not the funds to be transferred are actually savings in
the item from which the same are to be taken, or whether or not the transfer is for the purpose of
augmenting the item to which said transfer is to be made. It does not only completely disregard
the standards set in the fundamental law, thereby amounting to an undue delegation of legislative
powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render
the provision in question null and void.143
It is significant that Demetria was promulgated 25 days after the ratification by the people of the
1987 Constitution, whose Section 25(5) of Article VI is identical to Section 16(5), Article VIII of
the 1973 Constitution, to wit:
Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their respective offices from savings in
other items of their respective appropriations.
xxxx
The foregoing history makes it evident that the Constitutional Commission included Section
25(5), supra, to keep a tight rein on the exercise of the power to transfer funds appropriated by
Congress by the President and the other high officials of the Government named therein. The
Court stated in Nazareth v. Villar:144
In the funding of current activities, projects, and programs, the general rule should still be that
the budgetary amount contained in the appropriations bill is the extent Congress will determine
as sufficient for the budgetary allocation for the proponent agency. The only exception is found
in Section 25 (5), Article VI of the Constitution, by which the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and
the heads of Constitutional Commissions are authorized to transfer appropriations to augmentany
item in the GAA for their respective offices from the savings in other items of their respective
appropriations. The plain language of the constitutional restriction leaves no room for the
petitioner’s posture, which we should now dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named in Section 25(5),
Article VI of the Constitution limiting the authority to transfer savings only to augment another
item in the GAA is strictly but reasonably construed as exclusive. As the Court has expounded in
Lokin, Jr. v. Commission on Elections:
accords with reason and justice.
construction.
Accordingly, we should interpret Section 25(5), supra, in the context of a limitation on the
President’s discretion over the appropriations during the Budget Execution Phase.
b. Requisites for the valid transfer of

appropriated funds under Section
25(5), Article VI of the 1987
Constitution
The transfer of appropriated funds, to be valid under Section 25(5), supra, must be made upon a
concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court, and the heads of
the Constitutional Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the appropriations for their
respective offices; and (3) The purpose of the transfer is to augment an item in the
general appropriations law for their respective offices.
b.1. First Requisite–GAAs of 2011 and

2012 lacked valid provisions to
authorize transfers of funds under
the DAP; hence, transfers under the
DAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the Constitution, must have an
implementing law for it to be operative. That law, generally, is the GAA of a given fiscal year.
To comply with the first requisite, the GAAs should expressly authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the other high officials the authority
to transfer funds was Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker
of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby
authorized to augment any item in this Act from savings in other items of their respective
appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
authorized to augment any item in this Act from savings in other items of their respective
appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by the DBM as
justification for the use of savings under the DAP.145
A reading shows, however, that the aforequoted provisions of the GAAs of 2011 and 2012 were
textually unfaithful to the Constitution for not carrying the phrase "for their respective offices"
contained in Section 25(5), supra. The impact of the phrase "for their respective offices" was to
authorize only transfers of funds within their offices (i.e., in the case of the President, the transfer
was to an item of appropriation within the Executive). The provisions carried a different phrase
("to augment any item in this Act"), and the effect was that the 2011 and 2012 GAAs thereby
literally allowed the transfer of funds from savings to augment any item in the GAAs even if the
item belonged to an office outside the Executive. To that extent did the 2011 and 2012 GAAs
contravene the Constitution. At the very least, the aforequoted provisions cannot be used to claim
authority to transfer appropriations from the Executive to another branch, or to a constitutional
commission.
Apparently realizing the problem, Congress inserted the omitted phrase in the counterpart
provision in the 2013 GAA, to wit:
authorized to use savings in their respective appropriations to augment actual deficiencies
incurred for the current year in any item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section 25(5), supra, existed,
there still remained two other requisites to be met, namely: that the source of funds to be
transferred were savings from appropriations within the respective offices; and that the transfer
must be for the purpose of augmenting an item of appropriation within the respective offices.
b.2. Second Requisite – There were

no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP — the unreleased appropriations and
withdrawn unobligated allotments — were not actual savings within the context of Section 25(5),
supra, and the relevant provisions of the GAAs. Belgica argues that "savings" should be
understood to refer to the excess money after the items that needed to be funded have been
funded, or those that needed to be paid have been paid pursuant to the budget.146 The petitioners
posit that there could be savings only when the PAPs for which the funds had been appropriated
were actually implemented and completed, or finally discontinued or abandoned. They insist that
savings could not be realized with certainty in the middle of the fiscal year; and that the funds for
"slow-moving" PAPs could not be considered as savings because such PAPs had not actually
been abandoned or discontinued yet.147 They stress that NBC No. 541, by allowing the
withdrawn funds to be reissued to the "original program or project from which it was
withdrawn," conceded that the PAPs from which the supposed savings were taken had not been
completed, abandoned or discontinued.148
The OSG represents that "savings" were "appropriations balances," being the difference between
the appropriation authorized by Congress and the actual amount allotted for the appropriation;
that the definition of "savings" in the GAAs set only the parameters for determining when
savings occurred; that it was still the President (as well as the other officers vested by the
Constitution with the authority to augment) who ultimately determined when savings actually
existed because savings could be determined only during the stage of budget execution; that the
President must be given a wide discretion to accomplish his tasks; and that the withdrawn
unobligated allotments were savings inasmuch as they were clearly "portions or balances of any
programmed appropriation…free from any obligation or encumbrances which are (i) still
available after the completion or final discontinuance or abandonment of the work, activity or
purpose for which the appropriation is authorized…"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should be borne in mind. The first
principle is that Congress wields the power of the purse. Congress decides how the budget will
be spent; what PAPs to fund; and the amounts of money to be spent for each PAP. The second
principle is that the Executive, as the department of the Government tasked to enforce the laws,
is expected to faithfully execute the GAA and to spend the budget in accordance with the
provisions of the GAA.149 The Executive is expected to faithfully implement the PAPs for
which Congress allocated funds, and to limit the expenditures within the allocations, unless
exigencies result to deficiencies for which augmentation is authorized, subject to the conditions
provided by law. The third principle is that in making the President’s power to augment
operative under the GAA, Congress recognizes the need for flexibility in budget execution. In so
doing, Congress diminishes its own power of the purse, for it delegates a fraction of its power to
the Executive. But Congress does not thereby allow the Executive to override its authority over
the purse as to let the Executive exceed its delegated authority. And the fourth principle is that
savings should be actual. "Actual" denotes something that is real or substantial, or something that
exists presently in fact, as opposed to something that is merely theoretical, possible, potential or
hypothetical.150
The foregoing principles caution us to construe savings strictly against expanding the scope of
the power to augment. It is then indubitable that the power to augment was to be used only when
the purpose for which the funds had been allocated were already satisfied, or the need for such
funds had ceased to exist, for only then could savings be properly realized. This interpretation
prevents the Executive from unduly transgressing Congress’ power of the purse.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013, reflected this
interpretation and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in this Act free from any
obligation or encumbrance which are: (i) still available after the completion or final
discontinuance or abandonment of the work, activity or purpose for which the appropriation is
authorized; (ii) from appropriations balances arising from unpaid compensation and related costs
pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriations
balances realized from the implementation of measures resulting in improved systems and
efficiencies and thus enabled agencies to meet and deliver the required or planned targets,
programs and services approved in this Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition were a sure indication that savings
could be generated only upon the purpose of the appropriation being fulfilled, or upon the need
for the appropriation being no longer existent.
The phrase "free from any obligation or encumbrance" in the definition of savings in the GAAs
conveyed the notion that the appropriation was at that stage when the appropriation was already
obligated and the appropriation was already released. This interpretation was reinforced by the
enumeration of the three instances for savings to arise, which showed that the appropriation
referred to had reached the agency level. It could not be otherwise, considering that only when
the appropriation had reached the agency level could it be determined whether (a) the PAP for
which the appropriation had been authorized was completed, finally discontinued, or abandoned;
or (b) there were vacant positions and leaves of absence without pay; or (c) the required or
planned targets, programs and services were realized at a lesser cost because of the
implementation of measures resulting in improved systems and efficiencies.
The DBM declares that part of the savings brought under the DAP came from "pooling of
unreleased appropriations such as unreleased Personnel Services appropriations which will lapse
at the end of the year, unreleased appropriations of slow moving projects and discontinued
projects per Zero-Based Budgeting findings."
The declaration of the DBM by itself does not state the clear legal basis for the treatment of
unreleased or unalloted appropriations as savings.
The fact alone that the appropriations are unreleased or unalloted is a mere description of the
status of the items as unalloted or unreleased. They have not yet ripened into categories of items
from which savings can be generated. Appropriations have been considered "released" if there
has already been an allotment or authorization to incur obligations and disbursement authority.
This means that the DBM has issued either an ABM (for those not needing clearance), or a
SARO (for those needing clearance), and consequently an NCA, NCAA or CDC, as the case
may be. Appropriations remain unreleased, for instance, because of noncompliance with
documentary requirements (like the Special Budget Request), or simply because of the
unavailability of funds. But the appropriations do not actually reach the agencies to which they
were allocated under the GAAs, and have remained with the DBM technically speaking. Ergo,
unreleased appropriations refer to appropriations with allotments but without disbursement
authority.
For us to consider unreleased appropriations as savings, unless these met the statutory definition
of savings, would seriously undercut the congressional power of the purse, because such
appropriations had not even reached and been used by the agency concerned vis-à-vis the PAPs
for which Congress had allocated them. However, if an agency has unfilled positions in its
plantilla and did not receive an allotment and NCA for such vacancies, appropriations for such
positions, although unreleased, may already constitute savings for that agency under the second
instance.
Unobligated allotments, on the other hand, were encompassed by the first part of the definition
of "savings" in the GAA, that is, as "portions or balances of any programmed appropriation in
this Act free from any obligation or encumbrance." But the first part of the definition was further
qualified by the three enumerated instances of when savings would be realized. As such,
unobligated allotments could not be indiscriminately declared as savings without first
determining whether any of the three instances existed. This signified that the DBM’s
withdrawal of unobligated allotments had disregarded the definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring Opinion that MOOE
appropriations are deemed divided into twelve monthly allocations within the fiscal year; hence,
savings could be generated monthly from the excess or unused MOOE appropriations other than
the Mandatory Expenditures and Expenditures for Business-type Activities because of the
physical impossibility to obligate and spend such funds as MOOE for a period that already
lapsed. Following this observation, MOOE for future months are not savings and cannot be
transferred.
The DBM’s Memorandum for the President dated June 25, 2012 (which became the basis of
NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews conducted on the agencies’
operations, particularly on the implementation of their projects/activities, including
expenses incurred in undertaking the same, have been continuously calling the attention
of all National Government agencies (NGAs) with low levels of obligations as of end of
the first quarter to speedup the implementation of their programs and projects in the
second quarter.
6.0 Said reminders were made in a series of consultation meetings with the concerned
agencies and with call-up letters sent.
7.0 Despite said reminders and the availability of funds at the department’s disposal, the
level of financial performance of some departments registered below program, with the
targeted obligations/disbursements for the first semester still not being met.
8.0 In order to maximize the use of the available allotment, all unobligated balances as of
June 30, 2012, both for continuing and current allotments shall be withdrawn and pooled
to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of
slow moving projects to be identified by the agencies and their catch up plans to be
evaluated by the DBM.
It is apparent from the foregoing text that the withdrawal of unobligated allotments would be
based on whether the allotments pertained to slow-moving projects, or not. However, NBC No.
541 did not set in clear terms the criteria for the withdrawal of unobligated allotments, viz:
3.1. These guidelines shall cover the withdrawal of unobligated allotments as of June 30,
2012 ofall national government agencies (NGAs) charged against FY 2011 Continuing
Appropriation (R.A. No. 10147) and FY 2012 Current Appropriation (R.A. No. 10155),
pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the

implementation of programs and projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension benefits declared as

savings by the agencies concerned based on their undated/validated list of
pensioners.
A perusal of its various provisions reveals that NBC No. 541 targeted the "withdrawal of
unobligated allotments of agencies with low levels of obligations"151 "to fund priority and/or
fast-moving programs/projects."152 But the fact that the withdrawn allotments could be
"[r]eissued for the original programs and projects of the agencies/OUs concerned, from which
the allotments were withdrawn"153 supported the conclusion that the PAPs had not yet been
finally discontinued or abandoned. Thus, the purpose for which the withdrawn funds had been
appropriated was not yet fulfilled, or did not yet cease to exist, rendering the declaration of the
funds as savings impossible.
Worse, NBC No. 541 immediately considered for withdrawal all released allotments in 2011
charged against the 2011 GAA that had remained unobligated based on the following
considerations, to wit:
5.4.1 The departments/agencies’ approved priority programs and projects are assumed to
be implementation-ready and doable during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations may imply that the
agency has a slower-than-programmed implementation capacity or agency tends to
implement projects within a two-year timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that affected the unobligated allotments
for continuing and current appropriations as of June 30, 2012, disregarded the 2-year period of
availability of the appropriations for MOOE and capital outlay extended under Section 65,
General Provisions of the 2011 GAA, viz:
Section 65. Availability of Appropriations. — Appropriations for MOOE and capital outlays
authorized in this Act shall be available for release and obligation for the purpose specified, and
under the same special provisions applicable thereto, for a period extending to one fiscal year
after the end of the year in which such items were appropriated: PROVIDED, That
appropriations for MOOE and capital outlays under R.A. No. 9970 shall be made available up to
the end of FY 2011: PROVIDED, FURTHER, That a report on these releases and obligations
shall be submitted to the Senate Committee on Finance and the House Committee on
Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. — Appropriations for MOOE and capital outlays
authorized in this Act shall be available for release and obligation for the purpose specified, and
under the same special provisions applicable thereto, for a period extending to one fiscal year
after the end of the year in which such items were appropriated: PROVIDED, That a report on
these releases and obligations shall be submitted to the Senate Committee on Finance and the
House Committee on Appropriations, either in printed form or by way of electronic
document.154
Thus, another alleged area of constitutional infirmity was that the DAP and its relevant issuances
shortened the period of availability of the appropriations for MOOE and capital outlays.
Congress provided a one-year period of availability of the funds for all allotment classes in the
2013 GAA (R.A. No. 10352), to wit:
Section 63. Availability of Appropriations.— All appropriations authorized in this Act shall be
available for release and obligation for the purposes specified, and under the same special
provisions applicable thereto, until the end of FY 2013: PROVIDED, That a report on these
releases and obligations shall be submitted to the Senate Committee on Finance and House
Committee on Appropriations, either in printed form or by way of electronic document.
Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad sought omnibus
authority to consolidate savings and unutilized balances to fund the DAP on a quarterly basis,
viz:
7.0 If the level of financial performance of some department will register below program,
even with the availability of funds at their disposal, the targeted
obligations/disbursements for each quarter will not be met. It is important to note that
these funds will lapse at the end of the fiscal year if these remain unobligated.
8.0 To maximize the use of the available allotment, all unobligated balances at the end of
every quarter, both for continuing and current allotments shall be withdrawn and pooled
to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of
slow moving projects to be identified by the agencies and their catch up plans to be
evaluated by the DBM.
The validity period of the affected appropriations, already given the brief Lifes pan of one year,
was further shortened to only a quarter of a year under the DBM’s memorandum dated May 20,
2013.
The petitioners accuse the respondents of forcing the generation of savings in order to have a
larger fund available for discretionary spending. They aver that the respondents, by withdrawing
unobligated allotments in the middle of the fiscal year, in effect deprived funding for PAPs with
existing appropriations under the GAAs.155
The respondents belie the accusation, insisting that the unobligated allotments were being
withdrawn upon the instance of the implementing agencies based on their own assessment that
they could not obligate those allotments pursuant to the President’s directive for them to spend
their appropriations as quickly as they could in order to ramp up the economy.156
We agree with the petitioners.
Contrary to the respondents’ insistence, the withdrawals were upon the initiative of the DBM
itself. The text of NBC No. 541 bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments that shall be withdrawn,
all departments/agencies/operating units (OUs) shall submit to DBM not later than July 30, 2012,
the following budget accountability reports as of June 30, 2012;
• Statement of Allotments, Obligation and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the agency’s
latest report available shall be used by DBM as basis for withdrawal of allotment. The DBM
shall compute/approximate the agency’s obligation level as of June 30 to derive its unobligated
allotments as of same period. Example: If the March 31 SAOB or FRO reflects actual obligations
of P 800M then the June 30 obligation level shall approximate to P1,600 M (i.e., P800 M x 2
quarters).
The petitioners assert that no law had authorized the withdrawal and transfer of unobligated
allotments and the pooling of unreleased appropriations; and that the unbridled withdrawal of
unobligated allotments and the retention of appropriated funds were akin to the impoundment of
appropriations that could be allowed only in case of "unmanageable national government budget
deficit" under the GAAs,157 thus violating the provisions of the GAAs of 2011, 2012 and 2013
prohibiting the retention or deduction of allotments.158
In contrast, the respondents emphasize that NBC No. 541 adopted a spending, not saving, policy
as a last-ditch effort of the Executive to push agencies into actually spending their
appropriations; that such policy did not amount to an impoundment scheme, because
impoundment referred to the decision of the Executive to refuse to spend funds for political or
ideological reasons; and that the withdrawal of allotments under NBC No. 541 was made
pursuant to Section 38, Chapter 5, Book VI of the Administrative Code, by which the President
was granted the authority to suspend or otherwise stop further expenditure of funds allotted to
any agency whenever in his judgment the public interest so required.
The assertions of the petitioners are upheld. The withdrawal and transfer of unobligated
allotments and the pooling of unreleased appropriations were invalid for being bereft of legal
support. Nonetheless, such withdrawal of unobligated allotments and the retention of
appropriated funds cannot be considered as impoundment.
According to Philippine Constitution Association v. Enriquez:159 "Impoundment refers to a

refusal by the President, for whatever reason, to spend funds made available by Congress. It is
the failure to spend or obligate budget authority of any type." Impoundment under the GAA is
understood to mean the retention or deduction of appropriations. The 2011 GAA authorized
impoundment only in case of unmanageable National Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No appropriations authorized

under this Act shall be impounded through retention or deduction, unless in accordance with the
rules and regulations to be issued by the DBM: PROVIDED, That all the funds appropriated for
the purposes, programs, projects and activities authorized under this Act, except those covered
under the Unprogrammed Fund, shall be released pursuant to Section 33 (3), Chapter 5, Book VI
of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit. Retention or deduction of

appropriations authorized in this Act shall be effected only in cases where there is an
unmanageable national government budget deficit.
Unmanageable national government budget deficit as used in this section shall be construed to
mean that (i) the actual national government budget deficit has exceeded the quarterly budget
deficit targets consistent with the full-year target deficit as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and approved by Congress
pursuant to Section 22, Article VII of the Constitution, or (ii) there are clear economic
indications of an impending occurrence of such condition, as determined by the Development
Budget Coordinating Committee and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should not be regarded as
impoundment because it entailed only the transfer of funds, not the retention or deduction of
appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions of the 2012 and 2013 GAAs)
be applicable. They uniformly stated:
Section 68. Prohibition Against Retention/Deduction of Allotment. Fund releases from

appropriations provided in this Act shall be transmitted intact or in full to the office or agency
concerned. No retention or deduction as reserves or overhead shall be made, except as authorized
by law, or upon direction of the President of the Philippines. The COA shall ensure compliance
with this provision to the extent that sub-allotments by agencies to their subordinate offices are
in conformity with the release documents issued by the DBM.
The provision obviously pertained to the retention or deduction of allotments upon their release
from the DBM, which was a different matter altogether. The Court should not expand the
meaning of the provision by applying it to the withdrawal of allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to
justify the withdrawal of unobligated allotments. But the provision authorized only the
suspension or stoppage of further expenditures, not the withdrawal of unobligated allotments, to
wit:
Section 38. Suspension of Expenditure of Appropriations.- Except as otherwise provided in the

General Appropriations Act and whenever in his judgment the public interest so requires, the
President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop
further expenditure of funds allotted for any agency, or any other expenditure authorized in the
General Appropriations Act, except for personal services appropriations used for permanent
officials and employees.
Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38,
supra, but instead transferred the funds to other PAPs.
It is relevant to remind at this juncture that the balances of appropriations that remained
unexpended at the end of the fiscal year were to be reverted to the General Fund.1âwphi1 This
was the mandate of Section 28, Chapter IV, Book VI of the Administrative Code, to wit:
Section 28. Reversion of Unexpended Balances of Appropriations, Continuing Appropriations.-

Unexpended balances of appropriations authorized in the General Appropriation Act shall revert
to the unappropriated surplus of the General Fund at the end of the fiscal year and shall not
thereafter be available for expenditure except by subsequent legislative enactment: Provided, that
appropriations for capital outlays shall remain valid until fully spent or reverted: provided,
further, that continuing appropriations for current operating expenditures may be specifically
recommended and approved as such in support of projects whose effective implementation calls
for multi-year expenditure commitments: provided, finally, that the President may authorize the
use of savings realized by an agency during given year to meet non-recurring expenditures in a
subsequent year.
The balances of continuing appropriations shall be reviewed as part of the annual budget
preparation process and the preparation process and the President may approve upon
recommendation of the Secretary, the reversion of funds no longer needed in connection with the
activities funded by said continuing appropriations.
The Executive could not circumvent this provision by declaring unreleased appropriations and
unobligated allotments as savings prior to the end of the fiscal year.
b.3. Third Requisite – No funds from

savings could be transferred under
the DAP to augment deficient items
not provided in the GAA
The third requisite for a valid transfer of funds is that the purpose of the transfer should be "to
augment an item in the general appropriations law for the respective offices." The term
"augment" means to enlarge or increase in size, amount, or degree.160
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the appropriation
for the PAP item to be augmented must be deficient, to wit: –
x x x Augmentation implies the existence in this Act of a program, activity, or project with an
appropriation, which upon implementation, or subsequent evaluation of needed resources, is
determined to be deficient. In no case shall a non-existent program, activity, or project, be
funded by augmentation from savings or by the use of appropriations otherwise authorized in this
Act.
In other words, an appropriation for any PAP must first be determined to be deficient before it
could be augmented from savings. Note is taken of the fact that the 2013 GAA already made this
quite clear, thus:
authorized to use savings in their respective appropriations to augment actual deficiencies
incurred for the current year in any item of their respective appropriations.
As of 2013, a total of P144.4 billion worth of PAPs were implemented through the DAP.161
Of this amount P82.5 billion were released in 2011 and P54.8 billion in 2012.162 Sec. Abad has
reported that 9% of the total DAP releases were applied to the PAPs identified by the
legislators.163
The petitioners disagree, however, and insist that the DAP supported the following PAPs that
had not been covered with appropriations in the respective GAAs, namely:
(i) P1.5 billion for the Cordillera People’s Liberation Army;
(ii) P1.8 billion for the Moro National Liberation Front;
(iii) P700 million for assistance to Quezon Province;164
(iv) P50 million to P100 (million) each to certain senators;165
(v) P10 billion for the relocation of families living along dangerous zones under the
National Housing Authority;
(vi) P10 billion and P20 billion equity infusion under the Bangko Sentral;
(vii) P5.4 billion landowners’ compensation under the Department of Agrarian Reform;
(viii) P8.6 billion for the ARMM comprehensive peace and development program;
(ix) P6.5 billion augmentation of LGU internal revenue allotments
(x) P5 billion for crucial projects like tourism road construction under the Department of
Tourism and the Department of Public Works and Highways;
(xi) P1.8 billion for the DAR-DPWH Tulay ng Pangulo;
(xii) P1.96 billion for the DOH-DPWH rehabilitation of regional health units; and
(xiii) P4 billion for the DepEd-PPP school infrastructure projects.166
In refutation, the OSG argues that a total of 116 DAP-financed PAPs were implemented, had
appropriation covers, and could properly be accounted for because the funds were released
following and pursuant to the standard practices adopted by the DBM.167 In support of its
argument, the OSG has submitted seven evidence packets containing memoranda, SAROs, and
other pertinent documents relative to the implementation and fund transfers under the DAP.168
Upon careful review of the documents contained in the seven evidence packets, we conclude that
the "savings" pooled under the DAP were allocated to PAPs that were not covered by any
appropriations in the pertinent GAAs.
For example, the SARO issued on December 22, 2011 for the highly vaunted Disaster Risk,
Exposure, Assessment and Mitigation (DREAM) project under the Department of Science and
Technology (DOST) covered the amount of P1.6 Billion,169 broken down as follows:
APPROPRIATION PARTICULARS AMOUNT

CODE AUTHORIZED
A.03.a.01.a Generation of new
knowledge and
technologies and
research capability
building in priority P 43,504,024
areas identified as 1,164,517,589
strategic to National 391,978,387
Development P
Personnel Services 1,600,000,000
Maintenance and
Other Operating
Expenses
Capital Outlays
the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that Congress had
appropriated only P537,910,000 for MOOE, but nothing for personnel services and capital
outlays, to wit:
Personnel Maintenance Capital TOTAL

Services and Other Outlays
Operating
Expenditures
III. Operations
a. Funding Assistance to 177,406,000 1,887,365,000 49,090,000 2,113,861,000
Science
and Technology Activities
1. Central Office 1,554,238,000 1,554,238,000
a. Generation of new
knowledge and
technologies and research
capability building in
priority areas identified as
strategic to National
Development 537,910,000 537,910,000
Aside from this transfer under the DAP to the DREAM project exceeding by almost 300% the
appropriation by Congress for the program Generation of new knowledge and technologies and
research capability building in priority areas identified as strategic to National Development, the
Executive allotted funds for personnel services and capital outlays. The Executive thereby
substituted its will to that of Congress. Worse, the Executive had not earlier proposed any
amount for personnel services and capital outlays in the NEP that became the basis of the 2011
GAA.170
It is worth stressing in this connection that the failure of the GAAs to set aside any amounts for
an expense category sufficiently indicated that Congress purposely did not see fit to fund, much
less implement, the PAP concerned. This indication becomes clearer when even the President
himself did not recommend in the NEP to fund the PAP. The consequence was that any PAP
requiring expenditure that did not receive any appropriation under the GAAs could only be a
new PAP, any funding for which would go beyond the authority laid down by Congress in
enacting the GAAs. That happened in some instances under the DAP.
In relation to the December 22, 2011 SARO issued to the Philippine Council for Industry,
Energy and Emerging Technology Research and Development (DOST-PCIEETRD)171 for
Establishment of the Advanced Failure Analysis Laboratory, which reads:
APPROPRIATION PARTICULARS AMOUNT

CODE AUTHORIZED
Development,
integration and
coordination of the
National Research
System for Industry,
A.02.a
Energy and
Emerging
Technology and
Related Fields
Capital Outlays P 300,000,000
the appropriation code and the particulars appearing in the SARO did not correspond to the
program specified in the GAA, whose particulars were Research and Management
Services(inclusive of the following activities: (1) Technological and Economic Assessment for
Industry, Energy and Utilities; (2) Dissemination of Science and Technology Information; and
(3) Management of PCIERD Information System for Industry, Energy and Utilities. Even
assuming that Development, integration and coordination of the National Research System for
Industry, Energy and Emerging Technology and Related Fields– the particulars stated in the
SARO – could fall under the broad program description of Research and Management Services–
as appearing in the SARO, it would nonetheless remain a new activity by reason of its not being
specifically stated in the GAA. As such, the DBM, sans legislative authorization, could not
validly fund and implement such PAP under the DAP.
In defending the disbursements, however, the OSG contends that the Executive enjoyed sound
discretion in implementing the budget given the generality in the language and the broad policy
objectives identified under the GAAs;172 and that the President enjoyed unlimited authority to
spend the initial appropriations under his authority to declare and utilize savings,173 and in
keeping with his duty to faithfully execute the laws.
Although the OSG rightly contends that the Executive was authorized to spend in line with its
mandate to faithfully execute the laws (which included the GAAs), such authority did not
translate to unfettered discretion that allowed the President to substitute his own will for that of
Congress. He was still required to remain faithful to the provisions of the GAAs, given that his
power to spend pursuant to the GAAs was but a delegation to him from Congress. Verily, the
power to spend the public wealth resided in Congress, not in the Executive.174 Moreover,
leaving the spending power of the Executive unrestricted would threaten to undo the principle of
separation of powers.175
Congress acts as the guardian of the public treasury in faithful discharge of its power of the purse
whenever it deliberates and acts on the budget proposal submitted by the Executive.176 Its
power of the purse is touted as the very foundation of its institutional strength,177 and underpins
"all other legislative decisions and regulating the balance of influence between the legislative and
executive branches of government."178 Such enormous power encompasses the capacity to
generate money for the Government, to appropriate public funds, and to spend the money.179
Pertinently, when it exercises its power of the purse, Congress wields control by specifying the
PAPs for which public money should be spent.
It is the President who proposes the budget but it is Congress that has the final say on matters of
appropriations.180 For this purpose, appropriation involves two governing principles, namely:
(1) "a Principle of the Public Fisc, asserting that all monies received from whatever source by
any part of the government are public funds;" and (2) "a Principle of Appropriations Control,
prohibiting expenditure of any public money without legislative authorization."181 To conform
with the governing principles, the Executive cannot circumvent the prohibition by Congress of
an expenditure for a PAP by resorting to either public or private funds.182 Nor could the
Executive transfer appropriated funds resulting in an increase in the budget for one PAP, for by
so doing the appropriation for another PAP is necessarily decreased. The terms of both
appropriations will thereby be violated.
b.4 Third Requisite – Cross-border

augmentations from savings were
prohibited by the Constitution
By providing that the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the Heads of the Constitutional
Commissions may be authorized to augment any item in the GAA "for their respective offices,"
Section 25(5), supra, has delineated borders between their offices, such that funds appropriated
for one office are prohibited from crossing over to another office even in the guise of
augmentation of a deficient item or items. Thus, we call such transfers of funds cross-border
transfers or cross-border augmentations.
To be sure, the phrase "respective offices" used in Section 25(5), supra, refers to the entire
Executive, with respect to the President; the Senate, with respect to the Senate President; the
House of Representatives, with respect to the Speaker; the Judiciary, with respect to the Chief
Justice; the Constitutional Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire?
During the oral arguments on January 28, 2014, Sec. Abad admitted making some cross-border
augmentations, to wit:
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of Department of Budget and Management,
did the Executive Department ever redirect any part of savings of the National Government
under your control cross border to another department?
SECRETARY ABAD:
Well, in the Memos that we submitted to you, such an instance, Your Honor
JUSTICE BERSAMIN:
Can you tell me two instances? I don’t recall having read your material.
SECRETARY ABAD:
Well, the first instance had to do with a request from the House of Representatives. They started
building their e-library in 2010 and they had a budget for about 207 Million but they lack about
43 Million to complete its 250 Million requirements. Prior to that, the COA, in an audit
observation informed the Speaker that they had to continue with that construction otherwise the
whole building, as well as the equipments therein may suffer from serious deterioration. And at
that time, since the budget of the House of Representatives was not enough to complete 250
Million, they wrote to the President requesting for an augmentation of that particular item, which
was granted, Your Honor. The second instance in the Memos is a request from the Commission
on Audit. At the time they were pushing very strongly the good governance programs of the
government and therefore, part of that is a requirement to conduct audits as well as review
financial reports of many agencies. And in the performance of that function, the Commission on
Audit needed information technology equipment as well as hire consultants and litigators to help
them with their audit work and for that they requested funds from the Executive and the
President saw that it was important for the Commission to be provided with those IT equipments
and litigators and consultants and the request was granted, Your Honor.
JUSTICE BERSAMIN:
These cross border examples, cross border augmentations were not supported by
appropriations…
SECRETARY ABAD:
They were, we were augmenting existing items within their… (interrupted)
JUSTICE BERSAMIN:
No, appropriations before you augmented because this is a cross border and the tenor or text of
the Constitution is quite clear as far as I am concerned. It says here, "The power to augment may
only be made to increase any item in the General Appropriations Law for their respective
offices." Did you not feel constricted by this provision?
SECRETARY ABAD:
Well, as the Constitution provides, the prohibition we felt was on the transfer of appropriations,
Your Honor. What we thought we did was to transfer savings which was needed by the
Commission to address deficiency in an existing item in both the Commission as well as in the
House of Representatives; that’s how we saw…(interrupted)
JUSTICE BERSAMIN:
So your position as Secretary of Budget is that you could do that?
SECRETARY ABAD:
In an extreme instances because…(interrupted)
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do that, that’s your feeling.
SECRETARY ABAD:
Well, in that particular situation when the request was made by the Commission and the House
of Representatives, we felt that we needed to respond because we felt…(interrupted).183
The records show, indeed, that funds amounting to P143,700,000.00 and P250,000,000.00 were
transferred under the DAP respectively to the COA184 and the House of Representatives.185
Those transfers of funds, which constituted cross-border augmentations for being from the
Executive to the COA and the House of Representatives, are graphed as follows:186
AMOUNT
(In thousand
DATE pesos)
OFFICE PURPOSE
RELEASED
Reserve Releases
Imposed
Commission on IT Infrastructure 11/11/11 143,700
Audit Program and hiring of
additional litigation
experts
Congress – Completion of the 07/23/12 207,034 250,000
House of construction of the (Savings
Representatives Legislative Library and of
Archives HOR)
Building/Congressional
e-library
The respondents further stated in their memorandum that the President "made available" to the
"Commission on Elections the savings of his department upon [its] request for funds…"187 This
was another instance of a cross-border augmentation.
The respondents justified all the cross-border transfers thusly:
99. The Constitution does not prevent the President from transferring savings of his department
to another department upon the latter’s request, provided it is the recipient department that uses
such funds to augment its own appropriation. In such a case, the President merely gives the other
department access to public funds but he cannot dictate how they shall be applied by that
department whose fiscal autonomy is guaranteed by the Constitution.188
In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza, representing
Congress, announced a different characterization of the cross-border transfers of funds as in the
nature of "aid" instead of "augmentation," viz:
HONORABLE MENDOZA:
The cross-border transfers, if Your Honors please, is not an application of the DAP. What were
these cross-border transfers? They are transfers of savings as defined in the various General
Appropriations Act. So, that makes it similar to the DAP, the use of savings. There was a cross-
border which appears to be in violation of Section 25, paragraph 5 of Article VI, in the sense that
the border was crossed. But never has it been claimed that the purpose was to augment a
deficient item in another department of the government or agency of the government. The cross-
border transfers, if Your Honors please, were in the nature of [aid] rather than augmentations.
Here is a government entity separate and independent from the Executive Department solely in
need of public funds. The President is there 24 hours a day, 7 days a week. He’s in charge of the
whole operation although six or seven heads of government offices are given the power to
augment. Only the President stationed there and in effect in-charge and has the responsibility for
the failure of any part of the government. You have election, for one reason or another, the
money is not enough to hold election. There would be chaos if no money is given as an aid, not
to augment, but as an aid to a department like COA. The President is responsible in a way that
the other heads, given the power to augment, are not. So, he cannot very well allow this, if Your
Honor please.189
JUSTICE LEONEN:
May I move to another point, maybe just briefly. I am curious that the position now, I think, of
government is that some transfers of savings is now considered to be, if I’m not mistaken, aid not
augmentation. Am I correct in my hearing of your argument?
HONORABLE MENDOZA:
That’s our submission, if Your Honor, please.
JUSTICE LEONEN:
May I know, Justice, where can we situate this in the text of the Constitution? Where do we
actually derive the concepts that transfers of appropriation from one branch to the other or what
happened in DAP can be considered a said? What particular text in the Constitution can we
situate this?
HONORABLE MENDOZA:
There is no particular provision or statutory provision for that matter, if Your Honor please. It is
drawn from the fact that the Executive is the executive in-charge of the success of the
government.
JUSTICE LEONEN:
So, the residual powers labelled in Marcos v. Manglapus would be the basis for this theory of the
government?
HONORABLE MENDOZA:
Yes, if Your Honor, please.
JUSTICE LEONEN:
A while ago, Justice Carpio mentioned that the remedy is might be to go to Congress. That there
are opportunities and there have been opportunities of the President to actually go to Congress
and ask for supplemental budgets?
HONORABLE MENDOZA:
If there is time to do that, I would say yes.
JUSTICE LEONEN:
So, the theory of aid rather than augmentation applies in extra-ordinary situation?
HONORABLE MENDOZA:
Very extra-ordinary situations.
JUSTICE LEONEN:
But Counsel, this would be new doctrine, in case?
HONORABLE MENDOZA:
Yes, if Your Honor please.190
Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of
Section 25(5), supra, disallowing cross border transfers was disobeyed. Cross-border transfers,
whether as augmentation, or as aid, were prohibited under Section 25(5), supra.
4.
Sourcing the DAP from unprogrammed
funds despite the original revenue targets
not having been exceeded was invalid
Funding under the DAP were also sourced from unprogrammed funds provided in the GAAs for
2011, 2012,and 2013. The respondents stress, however, that the unprogrammed funds were not
brought under the DAP as savings, but as separate sources of funds; and that, consequently, the
release and use of unprogrammed funds were not subject to the restrictions under Section 25(5),
supra.
The documents contained in the Evidence Packets by the OSG have confirmed that the
unprogrammed funds were treated as separate sources of funds. Even so, the release and use of
the unprogrammed funds were still subject to restrictions, for, to start with, the GAAs precisely
specified the instances when the unprogrammed funds could be released and the purposes for
which they could be used.
The petitioners point out that a condition for the release of the unprogrammed funds was that the
revenue collections must exceed revenue targets; and that the release of the unprogrammed funds
was illegal because such condition was not met.191
The respondents disagree, holding that the release and use of the unprogrammed funds under the
DAP were in accordance with the pertinent provisions of the GAAs. In particular, the DBM
avers that the unprogrammed funds could be availed of when any of the following three
instances occur, to wit: (1) the revenue collections exceeded the original revenue targets
proposed in the BESFs submitted by the President to Congress; (2) new revenues were collected
or realized from sources not originally considered in the BESFs; or(3) newly-approved loans for
foreign assisted projects were secured, or when conditions were triggered for other sources of
funds, such as perfected loan agreements for foreign-assisted projects.192 This view of the DBM
was adopted by all the respondents in their Consolidated Comment.193
The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed appropriations" as
appropriations that provided standby authority to incur additional agency obligations for priority
PAPs when revenue collections exceeded targets, and when additional foreign funds are
generated.194 Contrary to the DBM’s averment that there were three instances when
unprogrammed funds could be released, the BESFs envisioned only two instances. The third
mentioned by the DBM – the collection of new revenues from sources not originally considered
in the BESFs – was not included. This meant that the collection of additional revenues from new
sources did not warrant the release of the unprogrammed funds. Hence, even if the revenues not
considered in the BESFs were collected or generated, the basic condition that the revenue
collections should exceed the revenue targets must still be complied with in order to justify the
release of the unprogrammed funds.
The view that there were only two instances when the unprogrammed funds could be released
was bolstered by the following texts of the Special Provisions of the 2011 and 2012 GAAs, to
wit:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be released only when the revenue
collections exceed the original revenue targets submitted by the President of the Philippines to
Congress pursuant to Section 22, Article VII of the Constitution, including savings generated
from programmed appropriations for the year: PROVIDED, That collections arising from
sources not considered in the aforesaid original revenue targets may be used to cover releases
from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved
loans for foreign-assisted projects, the existence of a perfected loan agreement for the purpose
shall be sufficient basis for the issuance of a SARO covering the loan proceeds: PROVIDED,
FURTHERMORE, That if there are savings generated from the programmed appropriations for
the first two quarters of the year, the DBM may, subject to the approval of the President, release
the pertinent appropriations under the Unprogrammed Fund corresponding to only fifty percent
(50%) of the said savings net of revenue shortfall: PROVIDED, FINALLY, That the release of
the balance of the total savings from programmed appropriations for the year shall be subject to
fiscal programming and approval of the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue
Congress pursuant to Section 22, Article VII of the Constitution: PROVIDED, That collections
arising from sources not considered in the aforesaid original revenue targets may be used to
cover releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly
approved loans for foreign-assisted projects, the existence of a perfected loan agreement for the
purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds.
As can be noted, the provisos in both provisions to the effect that "collections arising from
sources not considered in the aforesaid original revenue targets may be used to cover releases
from appropriations in this Fund" gave the authority to use such additional revenues for
appropriations funded from the unprogrammed funds. They did not at all waive compliance with
the basic requirement that revenue collections must still exceed the original revenue targets.
In contrast, the texts of the provisos with regard to additional revenues generated from newly-
approved foreign loans were clear to the effect that the perfected loan agreement would be in
itself "sufficient basis" for the issuance of a SARO to release the funds but only to the extent of
the amount of the loan. In such instance, the revenue collections need not exceed the revenue
targets to warrant the release of the loan proceeds, and the mere perfection of the loan agreement
would suffice.
It can be inferred from the foregoing that under these provisions of the GAAs the additional
revenues from sources not considered in the BESFs must be taken into account in determining if
the revenue collections exceeded the revenue targets. The text of the relevant provision of the
2013 GAA, which was substantially similar to those of the GAAs for 2011 and 2012, already
made this explicit, thus:
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue
Congress pursuant to Section 22, Article VII of the Constitution, including collections arising
from sources not considered in the aforesaid original revenue target, as certified by the BTr:
PROVIDED, That in case of newly approved loans for foreign-assisted projects, the existence of
a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO
covering the loan proceeds.
Consequently, that there were additional revenues from sources not considered in the revenue
target would not be enough. The total revenue collections must still exceed the original revenue
targets to justify the release of the unprogrammed funds (other than those from newly-approved
foreign loans).
The present controversy on the unprogrammed funds was rooted in the correct interpretation of
the phrase "revenue collections should exceed the original revenue targets." The petitioners take
the phrase to mean that the total revenue collections must exceed the total revenue target stated
in the BESF, but the respondents understand the phrase to refer only to the collections for each
source of revenue as enumerated in the BESF, with the condition being deemed complied with
once the revenue collections from a particular source already exceeded the stated target.
The BESF provided for the following sources of revenue, with the corresponding revenue target
stated for each source of revenue, to wit:
TAX REVENUES
Taxes on Net Income and Profits

Taxes on Property
Taxes on Domestic Goods and Services
General Sales, Turnover or VAT
Selected Excises on Goods
Selected Taxes on Services

Taxes on the Use of Goods or Property or Permission to Perform Activities
Other Taxes
Taxes on International Trade and Transactions
NON-TAX REVENUES
Fees and Charges

BTR Income
Government Services
Interest on NG Deposits
Interest on Advances to Government Corporations
Income from Investments
Interest on Bond Holdings
Guarantee Fee
Gain on Foreign Exchange
NG Income Collected by BTr
Dividends on Stocks
NG Share from Airport Terminal Fee
NG Share from PAGCOR Income
NG Share from MIAA Profit
Privatization
Foreign Grants
Thus, when the Court required the respondents to submit a certification from the Bureau of
Treasury (BTr) to the effect that the revenue collections had exceeded the original revenue
targets,195 they complied by submitting certifications from the BTr and Department of Finance
(DOF) pertaining to only one identified source of revenue – the dividends from the shares of
stock held by the Government in government-owned and controlled corporations.
To justify the release of the unprogrammed funds for 2011, the OSG presented the certification
dated March 4, 2011 issued by DOF Undersecretary Gil S. Beltran, as follows:
This is to certify that under the Budget for Expenditures and Sources of Financing for 2011, the
programmed income from dividends from shares of stock in government-owned and controlled
corporations is 5.5 billion.
This is to certify further that based on the records of the Bureau of Treasury, the National
Government has recorded dividend income amounting to P23.8 billion as of 31 January
2011.196
For 2012, the OSG submitted the certification dated April 26, 2012 issued by National Treasurer
Roberto B. Tan, viz:
This is to certify that the actual dividend collections remitted to the National Government for the
period January to March 2012 amounted to P19.419 billion compared to the full year program of
P5.5 billion for 2012.197
And, finally, for 2013, the OSG presented the certification dated July 3, 2013 issued by National
Treasurer Rosalia V. De Leon, to wit:
This is to certify that the actual dividend collections remitted to the National Government for the
period January to May 2013 amounted to P12.438 billion compared to the full year program of
P10.0198 billion for 2013.
Moreover, the National Government accounted for the sale of the right to build and operate the
NAIA expressway amounting to P11.0 billion in June 2013.199
The certifications reflected that by collecting dividends amounting to P23.8 billion in 2011,
P19.419 billion in 2012, and P12.438 billion in 2013 the BTr had exceeded only the P5.5 billion
in target revenues in the form of dividends from stocks in each of 2011 and 2012, and only the
P10 billion in target revenues in the form of dividends from stocks in 2013.
However, the requirement that revenue collections exceed the original revenue targets was to be
construed in light of the purpose for which the unprogrammed funds were incorporated in the
GAAs as standby appropriations to support additional expenditures for certain priority PAPs
should the revenue collections exceed the resource targets assumed in the budget or when
additional foreign project loan proceeds were realized. The unprogrammed funds were included
in the GAAs to provide ready cover so as not to delay the implementation of the PAPs should
new or additional revenue sources be realized during the year.200 Given the tenor of the
certifications, the unprogrammed funds were thus not yet supported by the corresponding
resources.201
The revenue targets stated in the BESF were intended to address the funding requirements of the
proposed programmed appropriations. In contrast, the unprogrammed funds, as standby
appropriations, were to be released only when there were revenues in excess of what the
programmed appropriations required. As such, the revenue targets should be considered as a
whole, not individually; otherwise, we would be dealing with artificial revenue surpluses. The
requirement that revenue collections must exceed revenue target should be understood to mean
that the revenue collections must exceed the total of the revenue targets stated in the BESF.
Moreover, to release the unprogrammed funds simply because there was an excess revenue as to
one source of revenue would be an unsound fiscal management measure because it would
disregard the budget plan and foster budget deficits, in contravention of the Government’s
surplus budget policy.202
We cannot, therefore, subscribe to the respondents’ view.
5.
Equal protection, checks and balances,
and public accountability challenges
The DAP is further challenged as violative of the Equal Protection Clause, the system of checks
and balances, and the principle of public accountability.
With respect to the challenge against the DAP under the Equal Protection Clause,203 Luna
argues that the implementation of the DAP was "unfair as it [was] selective" because the funds
released under the DAP was not made available to all the legislators, with some of them refusing
to avail themselves of the DAP funds, and others being unaware of the availability of such funds.
Thus, the DAP practised "undue favoritism" in favor of select legislators in contravention of the
Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal Protection Clause because no
reasonable classification was used in distributing the funds under the DAP; and that the Senators
who supposedly availed themselves of said funds were differently treated as to the amounts they
respectively received.
Anent the petitioners’ theory that the DAP violated the system of checks and balances, Luna
submits that the grant of the funds under the DAP to some legislators forced their silence about
the issues and anomalies surrounding the DAP. Meanwhile, Belgica stresses that the DAP, by
allowing the legislators to identify PAPs, authorized them to take part in the implementation and
execution of the GAAs, a function that exclusively belonged to the Executive; that such situation
constituted undue and unjustified legislative encroachment in the functions of the Executive; and
that the President arrogated unto himself the power of appropriation vested in Congress because
NBC No. 541 authorized the use of the funds under the DAP for PAPs not considered in the
2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the principle of public accountability
enshrined in the Constitution,204 because the legislators relinquished the power of appropriation
to the Executive, and exhibited a reluctance to inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination in the release of funds
under the DAP could be raised only by the affected Members of Congress themselves, and if the
challenge based on the violation of the Equal Protection Clause was really against the
constitutionality of the DAP, the arguments of the petitioners should be directed to the
entitlement of the legislators to the funds, not to the proposition that all of the legislators should
have been given such entitlement.
The challenge based on the contravention of the Equal Protection Clause, which focuses on the
release of funds under the DAP to legislators, lacks factual and legal basis. The allegations about
Senators and Congressmen being unaware of the existence and implementation of the DAP, and
about some of them having refused to accept such funds were unsupported with relevant data.
Also, the claim that the Executive discriminated against some legislators on the ground alone of
their receiving less than the others could not of itself warrant a finding of contravention of the
Equal Protection Clause. The denial of equal protection of any law should be an issue to be
raised only by parties who supposedly suffer it, and, in these cases, such parties would be the few
legislators claimed to have been discriminated against in the releases of funds under the DAP.
The reason for the requirement is that only such affected legislators could properly and fully
bring to the fore when and how the denial of equal protection occurred, and explain why there
was a denial in their situation. The requirement was not met here. Consequently, the Court was
not put in the position to determine if there was a denial of equal protection. To have the Court
do so despite the inadequacy of the showing of factual and legal support would be to compel it to
speculate, and the outcome would not do justice to those for whose supposed benefit the claim of
denial of equal protection has been made.
The argument that the release of funds under the DAP effectively stayed the hands of the
legislators from conducting congressional inquiries into the legality and propriety of the DAP is
speculative. That deficiency eliminated any need to consider and resolve the argument, for it is
fundamental that speculation would not support any proper judicial determination of an issue
simply because nothing concrete can thereby be gained. In order to sustain their constitutional
challenges against official acts of the Government, the petitioners must discharge the basic
burden of proving that the constitutional infirmities actually existed.205 Simply put, guesswork
and speculation cannot overcome the presumption of the constitutionality of the assailed
executive act.
We do not need to discuss whether or not the DAP and its implementation through the various
circulars and memoranda of the DBM transgressed the system of checks and balances in place in
our constitutional system. Our earlier expositions on the DAP and its implementing issuances
infringing the doctrine of separation of powers effectively addressed this particular concern.
Anent the principle of public accountability being transgressed because the adoption and
implementation of the DAP constituted an assumption by the Executive of Congress’ power of
appropriation, we have already held that the DAP and its implementing issuances were policies
and acts that the Executive could properly adopt and do in the execution of the GAAs to the
extent that they sought to implement strategies to ramp up or accelerate the economy of the
country.
6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances constitutionally infirm, we must now
deal with the consequences of the declaration.
Article 7 of the Civil Code provides:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall
not be excused by disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the Constitution, the former shall be void
and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution.
A legislative or executive act that is declared void for being unconstitutional cannot give rise to
any right or obligation.206 However, the generality of the rule makes us ponder whether rigidly
applying the rule may at times be impracticable or wasteful. Should we not recognize the need to
except from the rigid application of the rule the instances in which the void law or executive act
produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine, definitely not a novel one,
has been exhaustively explained in De Agbayani v. Philippine National Bank:207
The decision now on appeal reflects the orthodox view that an unconstitutional act, for that
matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot
be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially declared results in its being to all intents and
purposes a mere scrap of paper. As the new Civil Code puts it: ‘When the courts declare a law to
be inconsistent with the Constitution, the former shall be void and the latter shall govern.’
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws of the Constitution. It is understandable why it should be so, the Constitution
being supreme and paramount. Any legislative or executive act contrary to its terms cannot
survive.
Such a view has support in logic and possesses the merit of simplicity. It may not however be
sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such
challenged legislative or executive act must have been in force and had to be complied with. This
is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to
obedience and respect. Parties may have acted under it and may have changed their positions.
What could be more fitting than that in a subsequent litigation regard be had to what has been
done while such legislative or executive act was in operation and presumed to be valid in all
respects. It is now accepted as a doctrine that prior to its being nullified, its existence as a fact
must be reckoned with. This is merely to reflect awareness that precisely because the judiciary is
the governmental organ which has the final say on whether or not a legislative or executive
measure is valid, a period of time may have elapsed before it can exercise the power of judicial
review that may lead to a declaration of nullity. It would be to deprive the law of its quality of
fairness and justice then, if there be no recognition of what had transpired prior to such
adjudication.
In the language of an American Supreme Court decision: ‘The actual existence of a statute, prior
to such a determination [of unconstitutionality], is an operative fact and may have consequences
which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may have to be considered in various aspects,
with respect to particular relations, individual and corporate, and particular conduct, private and
official.’"
The doctrine of operative fact recognizes the existence of the law or executive act prior to the
determination of its unconstitutionality as an operative fact that produced consequences that
cannot always be erased, ignored or disregarded. In short, it nullifies the void law or executive
act but sustains its effects. It provides an exception to the general rule that a void or
unconstitutional law produces no effect.208 But its use must be subjected to great scrutiny and
circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but
is resorted to only as a matter of equity and fair play.209 It applies only to cases where
extraordinary circumstances exist, and only when the extraordinary circumstances have met the
stringent conditions that will permit its application.
We find the doctrine of operative fact applicable to the adoption and implementation of the DAP.
Its application to the DAP proceeds from equity and fair play. The consequences resulting from
the DAP and its related issuances could not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional executive act. The
term executive act is broad enough to include any and all acts of the Executive, including those
that are quasi legislative and quasi-judicial in nature. The Court held so in Hacienda Luisita, Inc.
v. Presidential Agrarian Reform Council:210
Nonetheless, the minority is of the persistent view that the applicability of the operative fact
doctrine should be limited to statutes and rules and regulations issued by the executive
department that are accorded the same status as that of a statute or those which are quasi-
legislative in nature. Thus, the minority concludes that the phrase ‘executive act’ used in the case
of De Agbayani v. Philippine National Bank refers only to acts, orders, and rules and regulations
that have the force and effect of law. The minority also made mention of the Concurring Opinion
of Justice Enrique Fernando in Municipality of Malabang v. Benito, where it was supposedly
made explicit that the operative fact doctrine applies to executive acts, which are ultimately
quasi-legislative in nature.
We disagree. For one, neither the De Agbayani case nor the Municipality of Malabang case
elaborates what ‘executive act’ mean. Moreover, while orders, rules and regulations issued by
the President or the executive branch have fixed definitions and meaning in the Administrative
Code and jurisprudence, the phrase ‘executive act’ does not have such specific definition under
existing laws. It should be noted that in the cases cited by the minority, nowhere can it be found
that the term ‘executive act’ is confined to the foregoing. Contrarily, the term ‘executive act’ is
broad enough to encompass decisions of administrative bodies and agencies under the executive
department which are subsequently revoked by the agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma) as Chairman of the
Presidential Commission on Good Government (PCGG) and as Chief Presidential Legal Counsel
(CPLC) which was declared unconstitutional by this Court in Public Interest Center, Inc. v.
Elma. In said case, this Court ruled that the concurrent appointment of Elma to these offices is in
violation of Section 7, par. 2, Article IX-B of the 1987 Constitution, since these are incompatible
offices. Notably, the appointment of Elma as Chairman of the PCGG and as CPLC is, without a
question, an executive act. Prior to the declaration of unconstitutionality of the said executive
act, certain acts or transactions were made in good faith and in reliance of the appointment of
Elma which cannot just be set aside or invalidated by its subsequent invalidation.
In Tan v. Barrios, this Court, in applying the operative fact doctrine, held that despite the
invalidity of the jurisdiction of the military courts over civilians, certain operative facts must be
acknowledged to have existed so as not to trample upon the rights of the accused therein.
Relevant thereto, in Olaguer v. Military Commission No. 34, it was ruled that ‘military tribunals
pertain to the Executive Department of the Government and are simply instrumentalities of the
executive power, provided by the legislature for the President as Commander-in-Chief to aid him
in properly commanding the army and navy and enforcing discipline therein, and utilized under
his orders or those of his authorized military representatives.’
Evidently, the operative fact doctrine is not confined to statutes and rules and regulations issued
by the executive department that are accorded the same status as that of a statute or those which
are quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative fact doctrine only to executive
issuances like orders and rules and regulations, said principle can nonetheless be applied, by
analogy, to decisions made by the President or the agencies under the executive department. This
doctrine, in the interest of justice and equity, can be applied liberally and in a broad sense to
encompass said decisions of the executive branch. In keeping with the demands of equity, the
Court can apply the operative fact doctrine to acts and consequences that resulted from the
reliance not only on a law or executive act which is quasi-legislative in nature but also on
decisions or orders of the executive branch which were later nullified. This Court is not
unmindful that such acts and consequences must be recognized in the higher interest of justice,
equity and fairness.
Significantly, a decision made by the President or the administrative agencies has to be complied
with because it has the force and effect of law, springing from the powers of the President under
the Constitution and existing laws. Prior to the nullification or recall of said decision, it may have
produced acts and consequences in conformity to and in reliance of said decision, which must be
respected. It is on this score that the operative fact doctrine should be applied to acts and
consequences that resulted from the implementation of the PARC Resolution approving the SDP
of HLI. (Bold underscoring supplied for emphasis)
In Commissioner of Internal Revenue v. San Roque Power Corporation,211 the Court likewise
declared that "for the operative fact doctrine to apply, there must be a ‘legislative or executive
measure,’ meaning a law or executive issuance." Thus, the Court opined there that the operative
fact doctrine did not apply to a mere administrative practice of the Bureau of Internal Revenue,
viz:
Under Section 246, taxpayers may rely upon a rule or ruling issued by the Commissioner from
the time the rule or ruling is issued up to its reversal by the Commissioner or this Court. The
reversal is not given retroactive effect. This, in essence, is the doctrine of operative fact. There
must, however, be a rule or ruling issued by the Commissioner that is relied upon by the taxpayer
in good faith. A mere administrative practice, not formalized into a rule or ruling, will not suffice
because such a mere administrative practice may not be uniformly and consistently applied. An
administrative practice, if not formalized as a rule or ruling, will not be known to the general
public and can be availed of only by those with informal contacts with the government agency.
It is clear from the foregoing that the adoption and the implementation of the DAP and its related
issuances were executive acts.1avvphi1 The DAP itself, as a policy, transcended a merely
administrative practice especially after the Executive, through the DBM, implemented it by
issuing various memoranda and circulars. The pooling of savings pursuant to the DAP from the
allotments made available to the different agencies and departments was consistently applied
throughout the entire Executive. With the Executive, through the DBM, being in charge of the
third phase of the budget cycle – the budget execution phase, the President could legitimately
adopt a policy like the DAP by virtue of his primary responsibility as the Chief Executive of
directing the national economy towards growth and development. This is simply because savings
could and should be determined only during the budget execution phase.
As already mentioned, the implementation of the DAP resulted into the use of savings pooled by
the Executive to finance the PAPs that were not covered in the GAA, or that did not have proper
appropriation covers, as well as to augment items pertaining to other departments of the
Government in clear violation of the Constitution. To declare the implementation of the DAP
unconstitutional without recognizing that its prior implementation constituted an operative fact
that produced consequences in the real as well as juristic worlds of the Government and the
Nation is to be impractical and unfair. Unless the doctrine is held to apply, the Executive as the
disburser and the offices under it and elsewhere as the recipients could be required to undo
everything that they had implemented in good faith under the DAP. That scenario would be
enormously burdensome for the Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as to be beyond debate that the
implementation of the DAP yielded undeniably positive results that enhanced the economic
welfare of the country. To count the positive results may be impossible, but the visible ones, like
public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals,
classrooms and the like. Not to apply the doctrine of operative fact to the DAP could literally
cause the physical undoing of such worthy results by destruction, and would result in most
undesirable wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative
fact does not always apply, and is not always the consequence of every declaration of
constitutional invalidity. It can be invoked only in situations where the nullification of the effects
of what used to be a valid law would result in inequity and injustice;212 but where no such result
would ensue, the general rule that an unconstitutional law is totally ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the
PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity
of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless
there are concrete findings of good faith in their favor by the proper tribunals determining their
criminal, civil, administrative and other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition;
and DECLARES the following acts and practices under the Disbursement Acceleration Program,
National Budget Circular No. 541 and related executive issuances UNCONSTITUTIONAL for
being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of
separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the
declaration of the withdrawn unobligated allotments and unreleased appropriations as
savings prior to the end of the fiscal year and without complying with the statutory
definition of savings contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the
appropriations of other offices outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by any
appropriation in the General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a
certification by the National Treasurer that the revenue collections exceeded the revenue targets
for non-compliance with the conditions provided in the relevant General Appropriations Acts.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice
I join the Concurring and Dissenting

See Dissenting Opinion
Opinion of J. Del Castillo
ANTONIO T. CARPIO
Associate Justice
Associate Justice
No part:
See: Separate Opinion
TERSITA J. LEONARDO-DE
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice
Pls. see separate concurring and
DIOSDADO M. PERALTA dissenting opinion
Associate Justice MARIANO C. DEL CASTILLO
Associate Justice


See separate concurring opinion

Pls. see Separate Concurring Opinion
LEONEN
Associate Justice
Associate Justice
CERTIFICATION
cases were assigned to the writer of the opinion of the court.

Chief Justice
Footnotes
1 <http://www.dbm.gov.ph/?p=7302> (visited May 27, 2014).
2 Labeled as "Personal Services" under the GAAs.
3 Frequently Asked Questions about the Disbursement Acceleration Program (DAP)

<http://www.dbm.gov.ph/?page_id=7362> (visited May 27, 2014).
4 See note 2.
5 Zero-based budgeting is a budgeting approach that involves the review/evaluation of

on-going programs and projects implemented by different departments/agencies in order
to: (a) establish the continued relevance of programs/projects given the current
developments/directions; (b) assess whether the program objectives/outcomes are being
achieved; (c) ascertain alternative or more efficient or effective ways of achieving the
objectives; and (d) guide decision makers on whether or not the resources for the
program/project should continue at the present level or be increased, reduced or
discontinued. (see NBC Circular No. 539, March 21, 2012).
6 Constitutional and Legal Bases < http://www.dbm.gov.ph/?page_id=7364> (visited
May 27, 2014).
7 Belgica v. Executive Secretary Ochoa, G.R. No. 208566, November 19, 2013.
8 The Villegas petition was originally undocketed due to lack of docket fees being paid;
subsequently, the docket fees were paid.
9 Rollo (G.R. No. 209287), p. 119.
10 Id. at 190-196. Sec. Abad manifested that the Memorandum for the President dated
June 25, 2012 was the directive referred to in NBC No. 541; and that although the date
appearing on the Memorandum was June 25, 2012, the actual date of its approval was
June 27, 2012.
11 Id. at 523-625.
12 Id. at 627-692.
13 Id. at 693-698.
14 Id. at 699-746.
15 Id. at 748-764.
16 Id. at 766-784.
17 Id. at 925.
18 Id. at 786-922.
19 Rollo (G.R. No. 209287), pp. 1050-1051 (Respondents’ Memorandum).
20 Id. at 1044.
21 Id. at 1048.
22 Id. at 1053.
23 Id. at 1053-1056.
24 Id. at 1056.
25 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary,

2009 Edition, p. 959.
26 I RECORD of the 1986 Constitutional Commission 436 (July 10, 1986).
27 I RECORD of the 1986 Constitutional Commission, 439 (July 10, 1986).
28 63 Phil. 139 (1936).
29 Id. at 157-158.
30 G.R. No. 153852, October 24, 2012, 684 SCRA 410.
31 Id. at 420-423.
32 Municipal Council of Lemery v. Provincial Board of Batangas, No. 36201, October

29, 1931, 56 Phil. 260, 266-267.
33 G.R. No. 163980, August 3, 2006, 497 SCRA 581, 595-596.
34 Francisco, Jr. v. Toll Regulatory Board, G.R. No. 166910, October 19, 2010, 633
SCRA 470, 494.
35 Planas v. Gil, 67 Phil. 62, 73-74 (1939), with the Court saying:
It must be conceded that the acts of the Chief Executive performed within the
limits of his jurisdiction are his official acts and courts will neither direct nor
restrain executive action in such cases. The rule is non-interference. But from this
legal premise, it does not necessarily follow that we are precluded from making
an inquiry into the validity or constitutionality of his acts when these are properly
challenged in an appropriate proceeding. xxx As far as the judiciary is concerned,
while it holds "neither the sword nor the purse" it is by constitutional placement
the organ called upon to allocate constitutional boundaries, and to the Supreme
Court is entrusted expressly or by necessary implication the obligation of
determining in appropriate cases the constitutionality or validity of any treaty,
law, ordinance, or executive order or regulation. (Sec.2 [1], Art. VIII, Constitution
of the Philippines.) In this sense and to this extent, the judiciary restrains the other
departments of the government and this result is one of the necessary corollaries
of the "system of checks and balances" of the government established.
36 Funa v. Villar, G.R. No. 192791, April 24, 2012, 670 SCRA 579, 593. According to
Black’s Law Dictionary (Ninth Edition), lis motais "[a] dispute that has begun and later
forms the basis of a lawsuit."
37 Bernas, op. cit., at 970.
38 Supra note 7.
39 Oral Arguments, TSN of January 28, 2014, p. 14.

40 Id. at 23.
41 Funa v. Ermita, G.R. No. 184740, February 11, 2010, 612 SCRA 308, 319.
42 Funa v. Villar, supra note 36, at 592; citing David v. Macapagal-Arroyo, G.R. Nos.
171396, 171409, 171485, 171483, 171400, 171489 & 171424, May 3, 2006, 489 SCRA
160, 214-215.
43 Black’s Law Dictionary, 941 (6th Ed. 1991).
44 G.R. No. 191002, March 17, 2010, 615 SCRA 666.
45 Id. at 722-726.
46 G.R. No. 155001, May 5, 2003, 402 SCRA 612, 645.
47 Rollo (G.R. No. 209412), Petition, pp. 3-4.
48 Rollo (G.R. No. 209164), p. 5.
49 Rollo (G.R. No. 209260), p. 6.
50 Agan, Jr. v. Philippine International Air Terminals Co., Inc., note 46 at 645.
51 Magtolis-Briones, Leonor, Philippine Public Fiscal Administration, National Research

Council of the Philippines and Commission on Audit, 1983, p. 243.
52 Manasan, Rosario G., Public Finance in the Philippines: A Review of the Literature,
Philippine Institute for Development Studies Working Paper 81-03, March 1981, p. 37.
53 Magtolis-Briones, op. cit., p. 79.
54 American economist Prof. Philip E. Taylor has tendered the following understanding
of the term budget (as quoted in Magtolis-Briones, op. cit., p. 243), to wit:
The budget is the master plan of government. It brings together estimates of anticipated
revenues and proposed expenditures, implying the schedule of activities to be undertaken
and the means of financing those activities. In the budget, fiscal policies are coordinated,
and only in the budget can a more unified view of the financial direction which the
government is going to be observed.
55 Id. at 10.
56 Id. at 10-11.
57 Id. at 11.
58 Id. at 12.
59 Manasan, op cit., at. 39; Manasan, Budget Operations Manual Revised Edition,
Operations Budget Commission (1968), p. 3.
60 Magtolis-Briones, op cit., at 80.
61 Id.
62 http://www.dbm.gov.ph/?page_id=352. Visited on May 27, 2014.
63 Id.
64 Magtolis-Briones, op cit., p. 269.
65 http://www.dbm.gov.ph/?page_id=352. Visited on March 27, 2014.
66 http://budgetngbayan.com/the-budget-cycle/. Visited on March 27, 2014.
67 http://budgetngbayan.com/budget-101/budget.preparation.
68 Section 22. The President shall submit to the Congress, within thirty days from the
opening of every regular session as the basis of the general appropriations bill, a budget
of expenditures and sources of financing, including receipts from existing and proposed
revenue measures.
69 Section 2(e), P.D. No. 1177 states that capital expenditures « refer to appropriations
for the purchase of goods and services, the benefits of which extend beyond the fiscal
year and which add to the assets of Government, including investments in the capital of
government-owned or controlled corporations and their subsidiaries. »
70 Section 2(d), PD 1177 defines current oprating expenditures as « appropriations for

the purchase of goods and services for current consumption or within the fiscal year,
including the acquisition of furniture and equipment normally used in the conduct of
government operations, and for temporary construction of promotional, research and
similar purposes. »
71 Manasan, op.cit.,at 32.
72 Id.
73 Id.
74 Id.
75 Id.; see also Banzon Abello, Amelia, Pattern of Philippine Public Expenditures and
Revenue, UP Institute of Economic Development and Research, p. 2 (1962).
76 Magtolis-Briones, op.cit.,at 383.
77 Id. at 139.
78 Quoted in Banzon Abello, op.cit., at 32-33.
79 Prof. Charles Bastable, a political economist, proposed a similar classification of

public revenues in Public Finance (3rd Edition (1917), Book II, Chapter I(2), London:
McMillan and Co., Ltd.), to wit:
The widest division of public revenue is into (1) that obtained by the State in its
various functions as a great corporation or "juristic person," operating under the
ordinary conditions that govern individuals or private companies, and (2) that
taken from the revenues of the society by the power of the sovereign. To the
former class belong the rents received by the State as landlord, rent charges due to
it, interest on capital lent by it, the earnings of its various employments, whether
these cover the expenses of the particular function or not, and finally the accrual
of property by escheat or absence of a visible owner. Under the second class have
to be placed taxes, either general or special, and finally all extra returns obtained
by state industrial agencies through the privileges granted by them.
80 Magtolis-Briones, supra at 140.
81 Id. at 141.
82 Id.
83 Id. at 142.
84 Id.
85 Manual on the New Government Accounting System, Accounting Policies, Volume I,

Chapter 1, Section 17 (For National Government Agencies).
86 http://budgetngbayan.com/budget-101/budget-legislation.
87 Article VI of the 1987 Constitution provides:
Section 24. All appropriation, revenue or tariff bills, bills authorizing increase of the
public debt, bills of local application, and private bills shall originate exclusively in the
House of Representatives, but the Senate may propose or concur with amendments.
88 Section 26, Article VI of the 1987 Constitution, to wit:

Section 26.
1. Every bill passed by the Congress shall embrace only one subject which shall
be expressed in the title thereof.
2. No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the
President certifies to the necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill, no amendment thereto
shall be allowed, and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.
89 Id.
90 Section 27,1, Article VI of the 1987 Constitution, viz:
Section 27.
1. Every bill passed by the Congress shall, before it becomes a law, be presented
to the President. If he approves the same he shall sign it; otherwise, he shall veto
it and return the same with his objections to the House where it originated, which
shall enter the objections at large in its Journal and proceed to reconsider it. If,
after such reconsideration, two-thirds of all the Members of such House shall
agree to pass the bill, it shall be sent, together with the objections, to the other
House by which it shall likewise be reconsidered, and if approved by two-thirds
of all the Members of that House, it shall become a law. In all such cases, the
votes of each House shall be determined by yeas or nays, and the names of the
Members voting for or against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it originated within thirty
days after the date of receipt thereof, otherwise, it shall become a law as if he had
signed it.
2. The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not affect the item or items
to which he does not object.
91 Id.
92 Section 25, 7, Article VI of the 1987 Constitution, thus :
xxxx.
7. If, by the end of any fiscal year, the Congress shall have failed to pass the
general appropriations bill for the ensuing fiscal year, the general appropriations
law for the preceding fiscal year shall be deemed re-enacted and shall remain in
force and effect until the general appropriations bill is passed by the Congress.
xxxx.
93 http://budgetngbayan.com/budget-101/budget-execution.
94 The ABM disaggregates all programmed appropriations for each agency into two
main expenditure categories: "not needing clearance" and "needing clearance"; it is a
comprehensive allotment release document for all appropriations that do not need
clearance, or those that have already been itemized and fleshed out in the GAA.
95 Items identified as "needing clearance" are those that require the approval of the DBM
or the President, as the case may be (for instance, lump sum funds and confidential and
intelligence funds). For such items, an agency needs to submit a Special Budget Request
to the DBM with supporting documents. Once approved, a SARO is issued.
96 Liabilities legally incurred that the Government will pay for.
97 Belgica v. Executive Secretary, supra note 7 clarifies the distinction between an NCA
and SARO, viz:
A SARO, as defined by the DBM itself in its website, is "[a] specific authority
issued to identified agencies to incur obligations not exceeding a given amount
during a specified period for the purpose indicated. It shall cover expenditures the
release of which is subject to compliance with specific laws or regulations, or is
subject to separate approval or clearance by competent authority." Based on this
definition, it may be gleaned that a SARO only evinces the existence of an
obligation and not the directive to pay. Practically speaking, the SARO does not
have the direct and immediate effect of placing public funds beyond the control of
the disbursing authority. In fact, a SARO may even be withdrawn under certain
circumstances which will prevent the actual release of funds. On the other hand,
the actual release of funds is brought about by the issuance of the NCA, which is
subsequent to the issuance of a SARO.
xxxx
98 http://budgetngbayan.com/budget-101/budget-accountability.
99 Fisher, Presidential Spending Power, 1975, p. 165.
100 Keefe and Ogul, The American Legislative Process: Congress and the States, 1993,
p. 359.
101 Magtolis-Briones, op. cit., p. 79.

102 Diokno, Philippine Fiscal Behavior in Recent History, The Philippine Review of
Economics, Vol. XLVII, No. 1, June 1, 2010, p. 53.
103 World Bank, Philippines Quarterly Update: Solid Economic Fundamentals Cushion
External Turmoil, available at http://www.investphilippines.info/arangkada/wp-
content/uploads/2011/10/WB-PhilippinesQuarterly-Update-Sept2011.pdf (last accessed
March 31, 2014).
104 Id.
105 Department of Budget and Management, Frequently Asked Questions About the
Disbursement Acceleration Program (DAP), available at
http://www.dbm.gov.ph/?page_id=7362 (last accessed, December 3, 2013).
106 Respondent’s Consolidated Comment, p.8.
107 Public-Private Partnership.
108 Philippines Quarterly Update: Solid Economic Fundamentals Cushion External

Turmoil, available at http://www.investphilippines.info/arangkada/wp-
content/uploads/2011/10/WB-Philippines-QuarterlyUpdate-Sept2011.pdf (last accessed
March 31, 2014).
109 Respondent’s Memorandum, p. 2, citing the Philippines Quarterly Update: From

Stability to Prosperity for All, available at http://www-
wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/
2012/06/12/000333037_20120612011744/Rendered/PDF/698330WP0P12740ch020120F
INAL0051012.pdf (last accessed March 31, 2014).
110 The research group IBON International contests this finding, saying that the
contribution of the DAP spending was only one-fourth of a percentage point at most
during the last quarter of 2011, and a "negligible fraction" for the entire year of 2011. See
"DAP did not contribute 1.3 percentage points to growth—IBON," available at
http://ibon.org/ibon_articles.php?id=344 (last accessed April 5, 2014).
111 TSN, Oral Arguments, January 28, 2014, p. 12.
112 Diokno, Philippine Fiscal Behavior in Recent History, The Philippine Review of
Economics, Vol. XLVII, No. 1, June 1, 2010, p. 51.
113 Id. at 52.
114 Rollo (G.R. No. 209287), p. 539, (Respondent’s 1st Evidence Packet).
115 Id. at 526-529, (Respondent’s 1st Evidence Packet).

116 Id. at 537-540.
117 Id. at 549-555.
118 Id. at 563-568.
119 Id. at 579-587.
120 Id. at 601-608.
121 This memorandum was a request to fund the rehabilitation plan for the Typhoon
Pablo-stricken areas in Mindanao amounting to P10.534 billion to be sourced from the (i)
2012 and 2013 pooled savings from programmed appropriations, and (ii) revenue
windfall collections during the first semester comprising the 2013 Unprogrammed Fund,
Respondent’s 1st Evidence Packet, p. 609-B.
122 Rollo (G.R. No. 209287), p. 555, (Respondent’s 1st Evidence Packet).
123 Id. at 185-189, (Respondent’s Manifestation dated December 6, 2013).
124 Blacks’ Law Dictionary (6th Ed.) p. 102.
125 ] G.R. No. 29627, December 19, 1989, 180SCRA 254.
126 Id. at 160.
127 Daniel Tomassi, "Budget Execution," in Budgeting and Budgetary Institutions, ed.
Anwar Shah (Washington: The International Bank for Reconstruction and
Development/World Bank, 2007), p. 279, available at
http://siteresources.worldbank.org/PSGLP/Resources/BudgetingandBudgetaryInstitutions
.pdf (last accessed April 9, 2014).
128 Budget Operations Manual (Revised Edition) 1968, Office of the President, Budget
Commission.
129 Fujitani and Shirck, Executive Spending Powers: The Capacity to Reprogram,
Rescind, and Impound. Harvard Law School, Federal Budget Policy Seminar, Briefing
Paper No. 8, p. 1, available at
http://www.law.harvard.edu/faculty/hjackson/ExecutiveSpendingPowers_8.pdf (last
accessed December 3, 2013).
130 Id. at 8.
131 Id.
132 Princeton University Press, 1975, pp. 261-262.

133 G.R. No. 103524, April 15, 1992, 208 SCRA 133, 150.
134 Waldby, Odell, Philippine Public Fiscal Administration, Institute of Public

Administration, University of the Philippines, 1954, p. 319.
135 The Philippine Commission, which lasted from 1900 to 1916, comprised the Upper
House of the Philippines Legislature. The Philippine Assembly, which existed from 1907
to 1916, served in its time as the Lower House of the Philippine Legislature.
136 Waldby, op. cit., pp. 321-322.
137 In his Sponsorship Speech, Delegate Honesto Mendoza, the Chairman of the
Committee on Budget and Appropriations of the 1971 Constitutional Convention, stated
that it was deemed "absolutely necessary to remove the anomaly of illegal fund transfers
of public funds to projects or purposes not contemplated by law."
138 Minutes of the Meeting, Commission on Budget and Appropriations, 1971

Constitutional Convention, November 4, 1971, p. 18.
139 Minutes of the Meeting, Commission on Budget and Appropriations, 1971

Constitutional Convention, January 13, 1972, p. 10.
140 Id. at 9.
141 Id. at 10-11.
142 Demetria v. Alba, No. L-71977, February 27, 1987, 148 SCRA 208.
143 Id. at 214-215.
144 G.R. No. 188635, January 29, 2013, 689 SCRA 385, 402-404.
145 Constitutional and Legal Bases < http://www.dbm.gov.ph/?page_id=7364> (visited

March 27, 2014)
146 Rollo (G.R. No. 209442), p. 7.
147 Rollo (G.R. No. 209260), p. 17; (G.R. No. 209517), p. 19; (G.R. No. 209155), p. 11;
(G.R. No. 209135), p. 13.
148 Rollo (G.R. No. 209287), p. 6; (G.R. No. 209517), p. 19; (G.R. No. 209442), p. 23.
149 Section 17, Article VII of the 1987 Constitution provides:
Section 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
150 Sanchez v. Commission on Audit, G.R. No. 127545, April 23, 2008, 552 SCRA 471,
497.
151 NBC No. 541 (Rationale); see also NBC No. 541 (5.3), which stated that, in case of
failure to submit budget accountability reports, the DBM would compute/approximate the
agency’s obligation level as of June 30 to derive its unobligated allotments as of the same
period.
152 NBC No. 541 (2.1).
153 NBC No. 541 (5.7.1).
154 These GAA provisions are reflected, respectively, in NBC No. 528 (Guidelines on
the Release of funds for FY 2011), thus:
3.9.1.2 Appropriations under FY 2011 GAA, R.A. 10147 shall be available for
release and obligations up to December 31, 2012 with the exception of PS which
shall lapse at the end of 2011.
and NBC No. 535 (Guidelines on the Release of funds for FY 2012), thus:
3.9.1.2 Appropriations under CY 2012 GAA, R.A. 10155 shall be available for
release and obligations up to December 31, 2013 with the exception of PS which
shall lapse at the end of 2012.
155 Rollo (G.R. No. 209442), p. 23.
156 Rollo (G.R. No. 209287), p. 1060, (Memorandum for the Respondents).
157 Rollo (209287), pp. 18-19.
158 Rollo (209442), pp. 21-22.
159 G.R. No. 113105, August 19, 1994, 235 SCRA 506, 545.
160 Webster’s Third New International Dictionary.
161 TSN, January 28, 2014, p. 12.
162 DBM, "Sec. Abad: DAP used to buoy spending, not to buy votes," available at
http://www.dbm.gov.ph/?p=7328 (last accessed March 28, 2014).
163 DBM, "Sec. Abad: DAP used to buoy spending, not to buy votes," available at
http://www.dbm.gov.ph/?p=7328 (last accessed March 28, 2014).
164 Rollo (G.R. No. 209136), p. 18.

165 Rollo (G.R. No. 209136), p. 18; (G.R. No. 209442), p. 13.
166 Rollo (G.R. No. 209155), p. 9.
167 Rollo (G.R. No. 209287), pp. 68-104; (Respondents’ Consolidated Comment).
168 Rollo (G.R. No. 209287), pp. 524-922.
169 SARO No. E-11-02253; Rollo (G.R. No. 209287), p. 628, (Respondents’ 2nd
Evidence Packet).
170 See FY2011 National Expenditure Program, p. 1186, available at

http://www.dbm.gov.ph/wpcontent/uploads/NEP2011/DOSTG-GAA.pdf.
171 SARO No. E-14-02254; Rollo (G.R. No. 209287), p. 630, (Respondents’ 2nd
Evidence Packet).
172 Rollo (G.R. No. 209287), p. 27, (Respondents’ Memorandum).
173 TSN, January 28, 2014, p. 26.
174 Section 29(1), Article VI of the 1987 Constitution provides that no money shall be
paid out of the Treasury except in pursuance of an appropriation made by law.
175 According to Allen and Miller. The Constitutionality of Executive Spending Powers,
Harvard Law School, Federal Budget Policy Seminar, Briefing Paper No. 38, p. 16,
available at
http://www.law.harvard.edu/faculty/hjackson/ConstitutionalityOfExecutive_38.pdf
(December 3, 2013):
If the executive could spend under its own authority, "then the constitutional
grants of power to the legislature to raise taxes and to borrow money would be for
naught because the Executive could effectively compel such legislation by
spending at will. The ‘[L]egislative Powers’ referred to in section 8 of Article I
would then be shared by the President in his executive as well as in his legislative
capacity" The framers intended the powers to spend and the powers to tax to be
"two sides of the same coin," and for good reason. Separating the two powers —
or giving the President one without the other — might reduce accountability and
result in excessive spending: the President would be able to spend and leave
Congress to deal with the political repercussions of financing such spending
through heightened tax rates.
177 Wander and Herbert (Ed.), Congressional Budgeting: Politics, Process and Power
(1984), p. 3.
178 Wander and Herbert (Ed.), Congressional Budgeting: Politics, Process and Power
(1984), at 133.
180 Philippine Constitution Association v. Enriquez, supra, note 159, at 522.
181 Stith, Kate, "Congress’ Power of the Purse" (1988), Faculty Scholarship Series,
Paper No. 1267, p. 1345, available at
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2282&context=fss_paper
s (last accessed March 29, 2014).
182 Id. at 1377.
183 TSN of January 28, 2014, pp. 42-45.
184 Rollo (G.R. No. 209287), p. 883, (Respondents’ 7th Evidence Packet).
185 Id. at 562, (Respondents’ 1st Evidence Packet).
186 See the OSG’s Compliance dated February 14, 2014, Annex B, p. 2.
187 Rollo (G.R. No. 209287), p. 35, (Memorandum for the Respondents).
188 Id.
189 TSN of February 18, 2014, p. 32.
190 TSN of February 18, 2014, pp. 45-46.
191 Rollo (G.R. No. 209287), p. 1027; (G.R. No. 209442), p. 8.
192 Other References: A Brief on the Special Purpose Funds in the National Budget
193 Rollo (G.R. No. 209287), p. 95.
194 Glossary of Terms, BESF.
195 TSN, January 28, 2014, p. 106.
196 Rollo (G.R. No. 209155), pp. 327 & 337.
197 Id. at 337 & 338.

198 The target revenue for dividends on stocks of P5.5 billion was according to the BESF
(2013), Table C.1 Revenue Program, by Source 2011-2013.
199 Rollo (G.R. No. 209155), pp. 337 & 339.
200 Other References: A Brief on the Special Purpose Funds in the National Budget
201 Basic Concepts in Budgeting <http://www.dbm.gov.ph/wp-

content/uploads/2012/03/PGB-B1.pdf> (visited May 2, 2014).
202 Id.
203 The Equal Protection Clause is found in Section 1, Article III of the 1987
Constitution, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the laws.
204 Article XI of the 1987 Constitution states:
Section 1. Public office is a public trust. Public officers and employees must, at
all times, be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest
lives.
205 See Fariñas v. Executive Secretary, G.R. No. 147387, December 10, 2003, 417
SCRA 503.
206 Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No.
187485, October 8, 2013.
207 G.R. No. L-23127, April 29, 1971, 38 SCRA 429, 434-435.
208 Yap v. Thenamaris Ship’s Management, G.R. No. 179532, May 30 2011, 649 SCRA
369, 381.
209 League of Cities Philippines v. COMELEC, G.R. No. 176951, August 24, 2010, 628
SCRA 819, 833.
210 G.R. No. 171101, November 22, 2011, 660 SCRA 525, 545-548.
211 Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No.
187485, October 8, 2013.
212 This view is similarly held by Justice Leonen, who asserts in his separate opinion
that the application of the doctrine of operative fact should be limited to situations (a)
where there has been a reliance in good faith in the acts involved, or (b) where in equity
the difficulties that will be borne by the public far outweigh the rigid application of the
legal nullity of an act.
SUPREME COURT
Manila
EN BANC
G.R. No. 162230 August 13, 2014
ISABELITA C. VINUY A, VICTORIA C. DELA PENA, HERMINIHILDA MANIMBO,

LEONOR H. SUMA WANG, CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG,
MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M. NAVARO, FRANCISCA
M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG, ESTER M.
PALACIO, MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PENA, EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA
SANGUYO, ANA ALONZO, RUFINA P. MALLARI, ROSARIO M. ALARCON,
RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C. CALMA, MARTA A.
GULAPA, TEODORA M. HERNANDEZ, FERMIN B. DELA PENA, MARIA DELA PAZ
B. CULALA,ESPERANZA MANAPOL, JUANITA M. BRIONES, VERGINIA M.
GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R. PUNZALAN,
JANUARIA G. GARCIA, PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q.
GALANG, ROSARIO C. BUCO, GAUDENCIA C. DELA PENA, RUFINA Q.
CATACUTAN, FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA
CRUZ, PETRONILA 0. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA,
EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M. BUCO, PATRICIA
A. BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C.
BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT,
GUILERMA S. BALINGIT, TERECITA PANGILINAN, MAMERTA C. PUNO,
CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA
G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA T.
SAGUM, CARIDAD L. TURLA, et al. in their capacityand as members of the "Malaya
Lolas Organizations," Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE
HONORABLE SECRETARY OF FOREIGN AFFAIRS DELIA DOMINGOALBERT,
THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and
THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO, Respondents.
RESOLUTION
BERSAMIN, J.:
Petitioners filed a Motion for Reconsideration1 and a Supplemental Motion for

Reconsideration,2 praying that the Court reverse its decision of April 28, 2010, and grant their
petition for certiorari.
In their Motion for Reconsideration, petitioners argue that our constitutional and jurisprudential
histories have rejected the Court’s ruling that the foreign policy prerogatives ofthe Executive
Branch are unlimited; that under the relevant jurisprudence and constitutional provisions, such
prerogatives are proscribed by international human rights and international conventions of which
the Philippines is a party; that the Court, in holding that the Chief Executive has the prerogative
whether to bring petitioners’ claims against Japan, has read the foreign policy powers of the
Office of the President in isolation from the rest of the constitutional protections that expressly
textualize international human rights; that the foreign policy prerogatives are subject to
obligations to promote international humanitarian law as incorporated intothe laws of the land
through the Incorporation Clause; that the Court must re-visit its decisions in Yamashita v.
Styer3 and Kuroda v. Jalandoni4 which have been noted for their prescient articulation of the
import of laws of humanity; that in said decision, the Court ruled that the State was bound to
observe the laws of war and humanity; that in Yamashita, the Court expressly recognized rape as
an international crime under international humanitarian law, and in Jalandoni, the Court declared
that even if the Philippines had not acceded or signed the Hague Convention on Rules and
Regulations covering Land Warfare, the Rules and Regulations formed part of the law of the
nation by virtue of the Incorporation Clause; that such commitment to the laws ofwar and
humanity has been enshrined in Section 2, Article II of the 1987 Constitution, which provides
"that the Philippines…adopts the generally accepted principles of international law as part of the
law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations."
The petitioners added that the statusand applicability of the generally accepted principles of
international law within the Philippine jurisdiction would be uncertain without the Incorporation
Clause, and that the clause implied that the general international law forms part of Philippine law
only insofar as they are expressly adopted; that in its rulings in The Holy See, v. Rosario, Jr.5
and U.S. v. Guinto6 the Court has said that international law is deemed part of the Philippine law
as a consequence of Statehood; that in Agustin v. Edu,7 the Court has declared that a treaty,
though not yet ratified by the Philippines, was part of the law of the land through the
Incorporation Clause; that by virtue of the Incorporation Clause, the Philippines is bound to
abide by the erga omnesobligations arising from the jus cogensnorms embodied in the laws of
war and humanity that include the principle of the imprescriptibility of war crimes; that the
crimes committed against petitioners are proscribed under international human rights law as
there were undeniable violations of jus cogensnorms; that the need to punish crimes against the
laws of humanity has long become jus cogensnorms, and that international legal obligations
prevail over national legal norms; that the Court’s invocation of the political doctrine in the
instant case is misplaced; and that the Chief Executive has the constitutional duty to afford
redress and to give justice to the victims ofthe comfort women system in the Philippines.8
Petitioners further argue that the Court has confused diplomatic protection with the broader
responsibility of states to protect the human rights of their citizens, especially where the rights
asserted are subject of erga omnesobligations and pertain to jus cogensnorms; that the claims
raised by petitioners are not simple private claims that are the usual subject of diplomatic
protection; that the crimes committed against petitioners are shocking to the conscience of
humanity; and that the atrocities committed by the Japanese soldiers against petitionersare not
subject to the statute of limitations under international law.9
Petitioners pray that the Court reconsider its April 28, 2010 decision, and declare: (1) that the
rapes, sexual slavery, torture and other forms of sexual violence committed against the Filipina
comfort women are crimes against humanity and war crimes under customary international law;
(2) that the Philippines is not bound by the Treaty of Peace with Japan, insofar as the waiver of
the claims of the Filipina comfort women against Japan is concerned; (3) that the Secretary of
Foreign Affairs and the Executive Secretary committed grave abuse of discretion in refusing to
espouse the claims of Filipina comfort women; and (4) that petitioners are entitled to the
issuance of a writ of preliminary injunction against the respondents.
Petitioners also pray that the Court order the Secretary of Foreign Affairs and the Executive
Secretary to espouse the claims of Filipina comfort women for an official apology,legal
compensation and other forms of reparation from Japan.10
In their Supplemental Motion for Reconsideration, petitioners stress that it was highly improper
for the April 28, 2010 decision to lift commentaries from at least three sources without proper
attribution – an article published in 2009 in the Yale Law Journal of International Law; a book
published by the Cambridge University Press in 2005; and an article published in 2006 in the
Western ReserveJournal of International Law – and make it appear that such commentaries
supported its arguments for dismissing the petition, when in truth the plagiarized sources even
made a strong case in favour of petitioners’ claims.11
In their Comment,12 respondents disagree withpetitioners, maintaining that aside from the
statements on plagiarism, the arguments raised by petitioners merely rehashed those made in
their June 7, 2005 Memorandum; that they already refuted such arguments in their
Memorandumof June 6, 2005 that the Court resolved through itsApril 28, 2010 decision,
specifically as follows:
1. The contentions pertaining tothe alleged plagiarism were then already lodged withthe
Committee on Ethics and Ethical Standards of the Court; hence, the matter of alleged
plagiarism should not be discussed or resolved herein.13
2. A writ of certioraridid not lie in the absence of grave abuse of discretion amounting to
lack or excess of jurisdiction. Hence, in view of the failureof petitioners to show any
arbitrary or despotic act on the part of respondents,the relief of the writ of certiorariwas
not warranted.14
3. Respondents hold that the Waiver Clause in the Treaty of Peace with Japan, being
valid, bound the Republic of the Philippines pursuant to the international law principle of
pacta sunt servanda.The validity of the Treaty of Peace was the result of the ratification
by two mutually consenting parties. Consequently, the obligations embodied in the
Treaty of Peace must be carried out in accordance with the common and real intention of
the parties at the time the treaty was concluded.15
4. Respondents assert that individuals did not have direct international remedies against
any State that violated their human rights except where such remedies are provided by an
international agreement. Herein, neither of the Treaty of Peace and the Reparations
Agreement,the relevant agreements affecting herein petitioners, provided for the
reparation of petitioners’ claims. Respondents aver that the formal apology by the
Government of Japan and the reparation the Government of Japan has provided through
the Asian Women’s Fund (AWF) are sufficient to recompense petitioners on their claims,
specifically:
a. About 700 million yen would be paid from the national treasury over the next 10 years
as welfare and medical services;
b. Instead of paying the money directly to the former comfort women, the services would
be provided through organizations delegated by governmental bodies in the recipient
countries (i.e., the Philippines, the Republic of Korea,and Taiwan); and
c. Compensation would consist of assistance for nursing services (like home helpers),
housing, environmental development, medical expenses, and medical goods.16
Ruling
The Court DENIESthe Motion for Reconsiderationand Supplemental Motion for

Reconsideration for being devoid of merit.
1. Petitioners did not show that their resort was timely under the Rules of Court.
Petitioners did not show that their bringing ofthe special civil action for certiorariwas timely, i.e.,
within the 60-day period provided in Section 4, Rule 65 of the Rules of Court, to wit:
Section 4. When and where position filed. – The petition shall be filed not later than sixty (60)
daysfrom notice of judgment, order or resolution. In case a motion for reconsideration or new
trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be
counted from notice of the denial of said motion.
As the rule indicates, the 60-day period starts to run from the date petitioner receives the assailed
judgment, final order or resolution, or the denial of the motion for reconsideration or new trial
timely filed, whether such motion is required or not. To establish the timeliness of the petition
for certiorari, the date of receipt of the assailed judgment, final order or resolution or the denial
of the motion for reconsideration or new trial must be stated in the petition;otherwise, the
petition for certiorarimust be dismissed. The importance of the dates cannot be understated, for
such dates determine the timeliness of the filing of the petition for certiorari. As the Court has
emphasized in Tambong v. R. Jorge Development Corporation:17
There are three essential dates that must be stated in a petition for certiorari brought under Rule
65. First, the date when notice of the judgment or final order or resolution was received; second,
when a motion for new trial or reconsideration was filed; and third, when notice of the denial
thereof was received. Failure of petitioner to comply with this requirement shall be sufficient
ground for the dismissal of the petition. Substantial compliance will not suffice in a matter
involving strict observance with the Rules. (Emphasis supplied)
The Court has further said in Santos v. Court of Appeals:18
The requirement of setting forth the three (3) dates in a petition for certiorari under Rule 65 is for
the purpose of determining its timeliness. Such a petition is required to be filed not later than
sixty (60) days from notice of the judgment, order or Resolution sought to be assailed. Therefore,
that the petition for certiorariwas filed forty-one (41) days from receipt of the denial of the
motion for reconsideration is hardly relevant. The Court of Appeals was notin any position to
determine when this period commenced to run and whether the motion for reconsideration itself
was filed on time since the material dates were not stated. It should not be assumed that in no
event would the motion be filed later than fifteen (15) days. Technical rules of procedure are not
designed to frustrate the ends of justice. These are provided to effect the proper and orderly
disposition of cases and thus effectively prevent the clogging of court dockets. Utter disregard of
the Rules cannot justly be rationalized by harking on the policy ofliberal construction.19
The petition for certioraricontains the following averments, viz:
82. Since 1998, petitioners and other victims of the "comfort women system,"
approached the Executive Department through the Department of Justice in order to
request for assistance to file a claim against the Japanese officials and military officers
who ordered the establishment of the "comfort women" stations in the Philippines;
83. Officials of the Executive Department ignored their request and refused to file a claim
against the said Japanese officials and military officers;
84. Undaunted, the Petitioners in turnapproached the Department of Foreign Affairs,

Department of Justice and Office of the of the Solicitor General to file their claim against
the responsible Japanese officials and military officers, but their efforts were similarly
and carelessly disregarded;20
The petition thus mentions the year 1998 only as the time when petitioners approached the
Department ofJustice for assistance, but does not specifically state when they received the denial
of their request for assistance by the Executive Department of the Government. This alone
warranted the outright dismissal of the petition.
Even assuming that petitioners received the notice of the denial of their request for assistance in
1998, their filing of the petition only on March 8, 2004 was still way beyond the 60-day period.
Only the most compelling reasons could justify the Court’s acts of disregarding and lifting the
strictures of the rule on the period. As we pointed out inMTM Garment Mfg. Inc. v. Court of
Appeals:21
All these do not mean, however, that procedural rules are to be ignored or disdained at will to
suit the convenience of a party. Procedural law has its own rationale in the orderly administration
of justice, namely: to ensure the effective enforcement of substantive rights by providing for a
system that obviates arbitrariness, caprice, despotism, or whimsicality in the settlement of
disputes. Hence, it is a mistake to suppose that substantive law and procedural law are
contradictory to each other, or as often suggested, that enforcement of procedural rules should
never be permitted if it would result in prejudice to the substantive rights of the litigants.
As we have repeatedly stressed, the right to file a special civil action of certiorariis neither a
natural right noran essential element of due process; a writ of certiorariis a prerogative writ,
never demandable as a matter of right, and never issued except in the exercise of judicial
discretion. Hence, he who seeks a writ of certiorarimust apply for it only in the manner and
strictly in accordance with the provisions of the law and the Rules.
Herein petitioners have not shown any compelling reason for us to relax the rule and the
requirements under current jurisprudence. x x x. (Emphasis supplied)
2. Petitioners did not show that the assailed act was either judicial or quasi-judicial on the part of
respondents.
Petitioners were required to show in their petition for certiorarithat the assailed act was either
judicial or quasi-judicial in character. Section 1, Rule 65 of the Rules of Courtrequires such
showing, to wit:
Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order, or resolution
subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn
certification of nonforum shopping as provided in the third paragraph of Section 3, Rule 46.
However, petitioners did notmake such a showing.
3. Petitioners were not entitled to the injunction.
The Court cannot grant petitioners’ prayer for the writ of preliminary mandatory injunction.
Preliminary injunction is merely a provisional remedy that is adjunct to the main case, and is
subject to the latter’s outcome. It is not a cause of action itself.22 It is provisional because it
constitutes a temporary measure availed of during the pendency of the action; and it is ancillary
because it is a mere incident in and is dependent upon the result of the main action.23 Following
the dismissal of the petition for certiorari, there is no more legal basis to issue the writ of
injunction sought. As an auxiliary remedy, the writ of preliminary mandatory injunction cannot
be issued independently of the principal action.24
In any event, a mandatory injunction requires the performance of a particular act.1âwphi1 Hence,
it is an extreme remedy,25 to be granted only if the following requisites are attendant, namely:
(a) The applicant has a clear and unmistakable right, that is, a right in esse;
(b) There is a material and substantial invasion of such right; and
(c) There is an urgent need for the writ to prevent irreparable injury to the applicant; and
no other ordinary, speedy, and adequate remedy exists to prevent the infliction of
irreparable injury.26
In Marquez v. The Presiding Judge (Hon. Ismael B. Sanchez), RTC Br. 58, Lucena City,27 we
expounded as follows:
It is basic that the issuance of a writ of preliminary injunction is addressed to the sound
discretion of the trial court, conditioned on the existence of a clear and positive right of the
applicant which should be protected. It is an extraordinary, peremptory remedy available only on
the grounds expressly provided by law, specifically Section 3, Rule 58 of the Rules of Court.
Moreover, extreme caution must be observed in the exercise of such discretion. It should be
granted only when the court is fully satisfied that the law permits it and the emergency demands
it. The very foundation of the jurisdiction to issue a writ of injunction rests in the existence of a
cause of action and in the probability of irreparable injury, inadequacy of pecuniary
compensation, and the prevention of multiplicity of suits. Where facts are not shown to bring the
case within these conditions, the relief of injunction should be refused.28
Here, the Constitution has entrusted to the Executive Department the conduct of foreign relations
for the Philippines. Whether or not to espouse petitioners' claim against the Government of Japan
is left to the exclusive determination and judgment of the Executive Department. The Court
cannot interfere with or question the wisdom of the conduct of foreign relations by the Executive
Department. Accordingly, we cannot direct the Executive Department, either by writ of certiorari
or injunction, to conduct our foreign relations with Japan in a certain manner.
WHEREFORE, the Court DENIES the Motion for Reconsideration and Supplemental Motion
for Reconsideration for their lack of merit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice

ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice
(no part)
DIOSDADO M. PERALTA
Associate Justice
Associate Justice


No part
ESTELA M. PERLAS-BERNABE MARVIC MARIO VICTOR F.
Associate Justice LEONEN
Associate Justice
CERTIFICATION
above Resolution had been reached in consultation before the case was assigned to the writer of

Chief Justice
Footnotes
1 Rollo, pp. 419-429.
2 Id. at 435-529.
3 75 Phil. 563 (1945).
4 83 Phil. 171 (1949).
5 G.R. No. 101949, December 1, 1994, 238SCRA 524.
7 No. L-49112, February 2, 1979, 88 SCRA 195.

8 Supra note 1.
9 Id. at 426-427.
10 Id. at 427-428.
11 Id. at 436.
12 Id. at 665-709.
13 Id. at 684-685.
14 Id. at 686-690.
15 Id. at 690-702.
16 Id. at 703-706.
17 G.R. No. 146068, August 31, 2006, 500 SCRA 399, 403-404.
18 G.R. No. 141947, July 5, 2001, 360 SCRA 521, 527-528.
19 Id. at 527-528.
20 Rollo, p. 18.
21 G.R. No. 152336, June 9, 2005, 460 SCRA 55, 66.
22 Buyco v. Baraquia, G.R. No. 177486, December 21, 2009, 608 SCRA 699, 703-704.
23 Id. at 704.
24 Bangko Sentral ng Pilipinas Monetary Board v. Antonio-Valenzuela, G.R. No.

184778, October 2, 2009, 602 SCRA 698, 715, citing Lim v. Court of Appeals, G.R. No.
134617, February 13, 2006, 482 SCRA 326, 331.
25 I Regalado, Remedial Law Compendium, Seventh Revised Edition, p. 638.
26 Philippine Leisure and Retirement Authority v. Court of Appeals, G.R. No. 156303,
December 19, 2007, 541 SCRA 85,99-100.
28 At 589.
SUPREME COURT
Manila
EN BANC
A.C. No. 7474 September 9, 2014
PRESIDING JUDGE JOSE L. MADRID, REGIONAL TRIAL COURT, BRANCH 51,

SORSOGON CITY, Complainant,
vs.
ATTY. JUAN S. DEALCA, Respondent.
DECISION
BERSAMIN, J.:
Complainant Presiding Judge of the Regional Trial Court has had enough of the respondent, a
law practitioner, who had engaged in the unethical practice of filing frivolous administrative
cases against judges and personnel of the courts because the latter filed a motion to inhibit the
complainant from hearing a pending case. Hence, the complainant has initiated this complaint for
the disbarment of respondent on the ground of gross misconduct and gross violation of the Code
of Professional Responsibility.
Antecedents
On February 7, 2007, Atty. Juan S.Dealca entered his appearance in Criminal Case No. 2006-
6795, entitled "People of the Philippines v. Philip William Arsenault" then pending in Branch 51
of the Regional Trial Court (RTC) in Sorsogon City, presided by complainant Judge Jose L.
Madrid.1 Atty. Dealca sought to replace Atty. Vicente Judar who had filed a motion to withdraw
as counsel for the accused. But aside from entering his appearance as counsel for the accused,
Atty. Dealca also moved that Criminal Case No. 2006-6795 be re-raffled to another Branch of
the RTC "[c]onsidering the adverse incidents between the incumbent Presiding Judge and the
undersigned," where" he does not appear before the incumbent Presiding Judge, and the latter
does not also hear cases handled by the undersigned."2
Judge Madrid denied Atty. Dealca’s motion to re-raffle through an order issued on February 14,
2007,3 viz:
xxxx
This Court will not allow that a case be removed from it just because of the personal sentiments
of counsel who was not even the original counsel of the litigant.
Moreover, the motion of Atty. Dealca is an affront to the integrity of this Court and the other
Courts in this province as hewould like it to appear that jurisdiction over a Family Court case is
based on his whimsical dictates.
This was so because Atty. Dealca had filed Administrative as well as criminal cases against this
Presiding Judge which were all dismissed by the Hon. Supreme Court for utter lack ofmerit. This
is why he should not have accepted this particular case so as not to derail the smooth proceedings
in this Court with his baseless motions for inhibition. It is the lawyer’s duty to appear on behalf
of a client in a case but not to appear for a client to remove a case from the Court. This is
unethical practice in the first order.
WHEREFORE, foregoing considered, the Motion of Atty. Juan S. Dealca is hereby DENIED.
Relative to the Motion to Withdraw as Counsel for the Accused filed by Atty. Vicente C. Judar
dated January 29, 2007, the same is hereby DENIED for being violative of the provisions of
Section 26 of Rule 138 of the Rules of Court.
So also, the Appearance of Atty. Juan S. Dealca as new counsel for accused Philip William
Arsenault is likewise DENIED.
SO ORDERED.
Consequently, Judge Madrid filed a letter complaint4 in the Office of the Bar Confidant citing
Atty. Dealca’sunethical practice of entering his appearance and then moving for the inhibition of
the presiding judge on the pretext of previous adverse incidents between them.
On April 10, 2007, we treated the complaint as a regular administrative complaint, and required
Atty. Dealca to submit his comment.5
In his comment-complaint,6 Atty. Dealca asserted that Judge Madrid’s issuance of the February
14, 2007 order unconstitutionally and unlawfully deprived the accused of the right to counsel, to
due process, and to a fair and impartial trial; that Judge Madrid exhibited bias in failing to act on
the motion to lift and set aside the warrant ofarrest issued against the accused; and that it should
be Judge Madrid himself who should be disbarred and accordingly dismissed from the Judiciary
for gross ignorance of the law.
On July 17, 2007, the Court referred the matter to the IBP for appropriate investigation,report
and recommendation.7 Several months thereafter, the Court also indorsed pertinent documents in
connection with A.M. OCA IPI No. 05-2385-RTJ, entitled "Joseph Yap III v. Judge Jose L.
Madrid and Court Stenographer MerlynD. Dominguez, both of the Regional Trial Court (RTC)
Branch 51, Sorsogon City" (Yap v. Judge Madrid).8
On June 6, 2007, the Court in Yap v. Judge Madriddismissed for its lack of merit the
administrative complaint against Judge Madrid for allegedly falsifying the transcript of
stenographic notes of the hearing on March 4, 2005 in Civil Case No. 2001-6842 entitled Joseph
D. Yap V, et al. v. Joseph H. Yap III, but referred to the Integrated Bar of the Philippines (IBP)
for investigation, report and recommendation the propensity of Atty. Dealca to file
administrative or criminal complaints against judges and court personnel whenever decisions,
orders or processes were issued adversely to him and his clients.9
In compliance with the referral,the IBP-Sorsogon Chapter submitted its report with the following
findings and recommendation:10
xxxx
The documentary evidence offered by complainants show that respondent Atty. Juan S. Dealca
filed by himself (1) Bar Matter No. 1197 and acting as counsel for the complainants (2) Adm.
Matter OCA IPI No. 04-2113-RTJ; (3) OMB-L-C-05-0478-E;(4) Adm. Matter OCA IPI No. 05-
2385-RTJ and (5) Adm. Matter OCA IPI No. 05-2191-RTJ. These five (5) cases are factual
evidence of the cases that respondent had filed by himself and as counsel for the complainants
against court officers, judges and personnel as a consequence of the IBP Election and incidents
in cases that respondent had handled as counselfor the parties in the said cases.
It will be noted that in Bar Matter No. 1197, the respondents were judges (Judge Jose L. Madrid
& Judge Honesto A. Villamor) and lawyers in IBP Sorsogon Chapters, who are no doubt officers
of the court, and the case aroused (sic) out ofthe unfavorable consensus of the IBP chapter
members that was adverse to the position of the respondent. The other four (4) cases aroused
[sic] out of the cases handled by respondent for the complainants who failed to secure a
favorable action from the court.
Specifically, Adm. Matter OCA IPI No. 04-2113-RTJ was a result of the case before the sala of
Judge Jose L. Madrid (RTC 51) entitled "Alita P. Gomez vs. Rodrigo Jarabo, et al.," for: Accion
Publiciana and Damages, that was handled by respondent for the complainant Alita Gomez.
OMB-L-C-0478-E was an off shoot of Civil Case No. 2001-6842 entitled "Marilyn D. Yap,
Joseph D. Yap V, et al., vs. Joseph H. Yap III" for: Support pending before the sala
ofcomplainant Judge Jose L. Madrid (RTC 51). Respondent, after an unfavorable decision
against defendant Joseph H. Yap III, entered his appearance and pleaded for the latter. As a
result of an adverse order, this ombudsman case arose.
Administrative Matter OCA IPI No. 05-2191-RTJ was also a result of the Civil Case No. 5403
entitled "Salve Dealca Latosa vs. Atty. Henry Amado Roxas, with Our Lady’s Village
Foundation and Most Reverend Arnulfo Arcilla, DD as third party defendant that was heard,
tried, decided and pending execution before the sala of Judge Honesto A. Villamor (RTC 52).
Administrative Matter OCA IPI No. 05-2385-RTJ was also a consequence of Civil Case No.
2001-6842 entitled "Marilyn D. Yap, Joseph D. Yap V, et al., vs. Joseph H. Yap III" for Support
pending before the sala of complainant JudgeJose L. Madrid (RTC 51).
All these four (4) cases are precipitated by the adverse ruling rendered by the court against the
clients of the respondent that instead of resorting to the remedies available under the Rules of
Procedure, respondent assisted his clients in filing administrative and criminal case against the
judges and personnel of the court.
The other documentary evidence of the complainants such as the (a) VERIFIED COMPLAINT
dated March 7, 2003 in Civil Service Case entitled "EDNA GOROSPE-DEALCA vs. JULIANA
ENCINASCARINO, et al.; (b) NOTICE OF RESOLUTION on October 22, 2005 in Adm. Case
No. 6334 entitled "SOFIAJAO vs. ATTY. EPIFANIA RUBY VELACRUZ-OIDA" passed by
the Board ofGovernors of the Integrated Bar of the Philippines which Resolution No. XVII-
2005-92 provides: "RESOLVED to ADOPT and APPROVE the Report and Recommendation of
the Investigating Commissioner dismissing the case for lacks (sic) merit; (c) RESOLUTION of
the Third Division of the Supreme Court dated February 1, 2006 in Administrative Case No.
6334 (Sofia Jao vs. Epifania Ruby Velacruz-Oida) – The notice of resolution dated October 22,
2005 ofthe Integrated Bar ofthe Philippines (IBP) dismissing the case for lack of merit; (d)
VERIFIED COMPLAINT in Adm. Case No. 6334 dated February 17, 2004 entitled "Sofia Jao
vs. Atty. Epifania Ruby Velacruz-Oida" for: Malpractice (Forum Shopping), and (e) ORDER
dated January 18, 2007 by Acting Presiding Judge RAUL E. DE LEON in Criminal Cases Nos.
2451 to 2454 entitled "People of the Philippines vs. Cynthia Marcial, et al. For: Falsification of
Medical Records" which provides for the dismissal of the cases against all the accused, do not
show participation on the part of the respondent that he signed the pleadings, although the
verified complaint is one executed by the wife of the respondent. Moreover, these cases are
pertaining to persons other than judges and personnel of the court that are not squarely covered
by the present investigation against respondent, although, it is an undeniable fact that respondent
had appeared for and in behalf of his wife, the rest of the complainants in the Civil Service Case
and Sofia Jao against Land Bank of the Philippines, the latter case resulted in the administrative
case of Atty. Epifania Ruby Velacruz-Oida, respondent’s sister member of the Bar. All these
documentary evidence from (a) to (e) are helpful in determining the "PROPENSITY" of the
respondent as a member of the bar in resorting to harassment cases instead of going through the
procedures provided for by the Rules of Court in the event of adverse ruling, order or decision of
the court.
xxxx
WHEREFORE, it is most respectfully recommended that in view of the above-foregoings [sic], a

penalty of SUSPENSION in the practice of law for a period of six (6) monthsfrom finality of the
decision be ordered against respondent Atty. Juan S. Dealca.
Findings and Recommendation of the IBP
IBP Commissioner Salvador B. Hababag ultimately submitted his Report and

Recommendation11 finding Atty. Dealca guilty of violating the Lawyer’s Oath and the Code of
Professional Responsibility by filing frivolous administrative and criminalcomplaints; and
recommending that Atty. Dealca be suspended from the practice of law for one year because his
motion to inhibit Judge Madrid was devoid of factual or legal basis, and was grounded on purely
personal whims.
In Resolution No. XVIII-2008-41,12 the IBP Board of Governors modified the recommendation
and dismissed the administrative complaint for its lack of merit, thus:
RESOLVED to AMEND, as it is hereby AMENDED, the Recommendation of the Investigating
Commissioner, and APPROVE the DISMISSAL of the above-entitled case for lack of merit.
Judge Madrid filed a petition,13 which the IBP Board of Governors treated as a motion for
reconsideration, and soon denied through its Resolution No. XX-2012-545.14
Issues
(1) Did Atty. Dealca file frivolousadministrative and criminal complaints against judges
and court personnel in violation of the Lawyer’s Oath and the Code of Professional
Responsibility?
(2) Was Atty. Dealca guilty of unethical practice in seeking the inhibition of Judge
Madrid in Criminal Case No. 2006-6795?
Ruling of the Court
We REVERSE Resolution No. XX-2012-545.
Atty. Dealca must guard against his own impulse of initiating unfounded suits
Atty. Dealca insists on the propriety of the administrative and criminal cases he filed against
judges and court personnel, including Judge Madrid. He argues that as a vigilant lawyer, he was
duty bound to bring and prosecute cases against unscrupulous and corrupt judges and court
personnel.15
We see no merit in Atty. Dealca’s arguments.
Although the Court always admires members of the Bar who are imbued with a high sense of
vigilance to weed out from the Judiciary the undesirable judges and inefficient or undeserving
court personnel, any acts taken in that direction should be unsullied by any taint of insincerity or
self interest. The noble cause of cleansing the ranks of the Judiciary is not advanced otherwise. It
is for that reason that Atty. Dealca’s complaint against Judge Madrid has failed our judicious
scrutiny, for the Court cannot find any trace of idealism or altruismin the motivations for
initiating it. Instead, Atty. Dealca exhibited his proclivity for vindictiveness and penchant for
harassment, considering that, as IBP Commissioner Hababag pointed out,16 his bringing of
charges against judges, court personnel and even his colleagues in the Law Profession had all
stemmed from decisions or rulings being adverse to his clients or his side. He well knew,
therefore, that he was thereby crossing the line of propriety, because neither vindictiveness nor
harassment could be a substitute for resorting tothe appropriate legal remedies. He should now
be reminded that the aim of every lawsuit should be to render justice to the parties according to
law, not to harass them.17
The Lawyer’s Oath is a source ofobligations and duties for every lawyer, and any violation
thereof by an attorney constitutes a ground for disbarment, suspension, or other disciplinary
action.18 The oath exhorts upon the members of the Bar not to "wittingly or willingly promote or
sue any groundless, false or unlawful suit." These are not mere facile words, drift and hollow,
but a sacred trust that must be upheld and keep inviolable.19
As a lawyer, therefore, Atty. Dealca was aware of his duty under his Lawyer’s Oath not to
initiate groundless, false or unlawful suits. The duty has also been expressly embodied inRule
1.03, Canon 1 of the Code of Professional Responsibility thuswise:
Rule 1.03 – A lawyer shall not, for any corrupt motive or interest, encourage any suit or
proceeding or delay any man’s cause.
His being an officer of the court should have impelled him to see to it that the orderly
administration of justice must not be unduly impeded. Indeed, as he must resist the whims and
caprices ofhis clients and temper his clients’ propensities to litigate,20 so must he equally guard
himself against his own impulses of initiating unfounded suits. While it is the Court’s duty to
investigate and uncover the truth behindcharges against judges and lawyers, it is equally its duty
to shield them from unfounded suits that are intended to vex and harass them, among other
things.21
Moreover, Atty. Dealca must be mindful of his mission to assist the courts in the proper
administration of justice. He disregarded his mission because his filing of the unfounded
complaints, including this one against Judge Madrid, increased the workload of the Judiciary.
Although no person should be penalized for the exercise ofthe right to litigate, the right must
nonetheless be exercised in good faith.22 Atty. Dealca’s bringing of the numerous administrative
and criminal complaints against judges, court personnel and his fellow lawyers did not evince
any good faith on his part, considering that he made allegations against them therein that he
could not substantially prove, and are rightfully deemed frivolous and unworthy of the Court’s
precious time and serious consideration.
Repeatedly denying any wrongdoing in filing the various complaints, Atty. Dealca had the
temerity to confront even the Court with the following arrogant tirade, to wit:
With due respect, what could be WRONG was the summary dismissal of cases filed against
erring judges and court personnel ‘for lack of merit’, i.e. without even discussing the facts and
the law of the case.23
Atty. Dealca was apparently referring to the minute resolutions the Court could have
promulgated in frequently dismissing his unmeritorious petitions. His arrogant posturing would
not advance his cause now. He thereby demonstrated his plain ignorance of the rules of
procedure applicable to the Court.The minute resolutions have been issued for the prompt
dispatch of the actions by the Court.24 Whenever the Court then dismisses a petition for review
for its lack of merit through a minute resolution, it is understood that the challenged decision or
order, together with all its findings of fact and law, is deemed sustained or upheld,25 and the
minute resolution then constitutes the actual adjudication on the merits of the case. The dismissal
of the petition, or itsdenial of due course indicates the Court’s agreement with and its adoption of
the findings and conclusions of the court a quo.26
The requirement for stating the facts and the law does not apply to the minute resolutions that the
Court issuesin disposing of a case. The Court explained why in Borromeo v. Court of Appeals:27
The [Supreme] Court x x x disposes of the bulk of its cases by minute resolutions and decrees
them as final and executory, as where a case is patently without merit, where the issues raised are
factual in nature, where the decision appealed from is supported by substantial evidence and is in
accord with the facts of the case and the applicable laws, where it is clear from the records that
the petition is filed merely to forestall the early execution of judgment and for non-compliance
with the rules. The resolution denying due course or dismissing the petition always gives the
legal basis.
xxxx
The Court is not ‘duty bound’ to render signed Decisions all the time. It has ample discretion to
formulate Decisions and/or Minute Resolutions, provided a legal basis is given, depending on its
evaluation of a case.
The constitutionality of the minute resolutions was the issue raised in Komatsu Industries
(Phils.), Inc. v. Court of Appeals.28 The petitioner contended that the minute resolutions violated
Section 14,29 Article VIII of the Constitution. The Court, throughJustice Regalado, declared that
resolutions were not decisions withinthe constitutional contemplation, for the former "merely
hold that the petition for review should not be entertained and even ordinary lawyers have all this
time so understood it; and the petition to review the decisionof the Court of Appeals is not a
matter of right but of sound judicial discretion, hence there is no need to fully explain the Court’s
denial since, for one thing, the facts and the law are already mentioned in the Court of Appeal’s
decision." It pointed out that the constitutional mandate was applicable only in cases submitted
for decision, i.e., given due course to and after the filing of briefs or memoranda and/or other
pleadings, but not where the petition was being refused due course, with the resolutions for that
purpose stating the legal basis of the refusal. Thus, when the Court, after deliberating on the
petition and the subsequent pleadings, decided to deny due course to the petition and stated that
the questions raised were factual, or there was no reversible error in the lower court’s decision,
there was a sufficient compliance with the constitutional requirement.30
II
Atty. Dealca violated Canon 11 and Rule 11.04 of the Code of Professional Responsibility
Atty. Dealca maintains that Judge Madrid should have "in good grace inhibited himself" upon
his motion toinhibit in order to preserve "confidence in the impartiality of the judiciary."31
However, IBP Commissioner Hababag has recommended that Atty. Dealca be sanctioned for
filing the motion to inhibit considering that the motion, being purely based on his personal
whims, was bereft of factual and legal bases.32
The recommendation of IBP Commissioner Hababag is warranted.

Lawyers are licensed officers of the courts empowered to appear, prosecute and defend the legal
causes for their clients. As a consequence, peculiar duties, responsibilities and liabilities are
devolved upon them by law. Verily, their membership in the Bar imposes certain obligations
upon them.33
In this regard, Canon 11 and Rule 11.04 of the Code of Professional Responsibility pertinently
state:
Canon 11 — A lawyer shall observe and maintain the respect due to the courts and to the judicial
officers and should insist on similar conduct by others.
xxxx
Rule 11.04 — A lawyer shall not attribute to a Judge motives not supported by the record or
haveno materiality to the case.1âwphi1
In light of the foregoing canons, all lawyers are bound to uphold the dignity and authority of the
courts, and to promote confidence in the fair administration of justice. It is the respect for the
courts that guarantees the stability of the judicial institution; elsewise, the institution would be
resting on a very shaky foundation.34
The motion to inhibit filed by Atty. Dealca contained the following averment, to wit:
Considering the adverse incidents between the incumbent Presiding Judge and the undersigned,
he does not appear before the incumbent Presiding Judge, andthe latter does not also hear cases
handled by the undersignedx x x.35 (Bold emphasis supplied)
Atty. Dealca’s averment that Judge Madrid did not hear cases being handled by him directly
insinuated that judges could choose the cases they heard, and could refuse to hear the cases in
which hostility existed between the judges and the litigants or their counsel. Such averment, if
true at all, should have been assiduously substantiated by him because it put in bad light not only
Judge Madrid but all judges in general. Yet, he did not even include any particulars that could
have validated the averment. Nor did he attach any document to support it.
Worth stressing, too, is that the right of a party to seek the inhibition or disqualification of a
judge who does not appear to be wholly free, disinterested, impartial and independent in
handling the case must be balanced with the latter’s sacred duty to decide cases without fear of
repression. Thus, it was incumbent upon Atty. Dealca to establish by clear and convincing
evidence the ground of bias and prejudice in order to disqualify Judge Madrid from participating
in a particular trial in which Atty. Dealca was participating as a counsel.36 The latter’s bare
allegations of Judge Madrid’s partiality or hostility did not suffice,37 because the presumption
that Judge Madrid would undertake his noble role to dispense justice according to law and the
evidence and without fear or favor should only be overcome by clear and convincing evidence to
the contrary.38 As such, Atty. Dealca clearly contravened his duties as a lawyer as expressly
stated in Canon 11 and Rule 11.04, supra.
On a final note, it cannot escape our attention that this is not the first administrative complaint to
be ever brought against Atty. Dealca.1avvphi1 In Montano v. Integrated Bar of the
Philippines,39 we reprimanded him for violating Canon 22 and Rule 20.4, Canon 20 of the Code
of Professional Responsibility, and warned him that a repetition of the same offense would be
dealt with more severely. Accordingly, based on the penalties the Court imposed on erring
lawyers found violating Canon 1, Rule 1.03,40 and Canon 11, Rule 11.0441 of the Code, we
deem appropriate to suspend Atty. Dealca from the practice of law for a period one year.
ACCORDINGLY, the Court FINDS and DECLARES respondent ATTY. JUAN S. DEALCA
GUILTY of violating Canon 1, Rule 1.03 and Canon 11, Rule 11. 04 of the Code of Professional
Responsibility; and SUSPENDS him from the practice of law for one year effective from notice
of this decision, with a STERN WARNING that any similar infraction in the future will be dealt
with more severely.
Let copies of this decision be furnished to the Office of the Bar Confidant to be appended to
Atty. Dealca's personal record as an attorney; to the Integrated Bar of the Philippines; and to all
courts in the country for their information and guidance.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
(On Leave)
MARIA LOURDES P. A. SERENO*
Chief Justice
ANTONIO T. CARPIO**
Associate Justice
Associate Justice
Acting Chief Justice
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice


ESTELA M. PERLAS-BERNABE MARIO VICTOR F. LEONEN

Associate Justice
Footnotes
* On Wellness Leave.
** Acting Chief Justice in lieu of Chief Justice Maria Lourdes P. A. Sereno, who is on
Wellness Leave, per Special Order No. 1770.
1 Rollo,p. 26.
2 Id. at 26.
3 Id. at 4-5.
4 Id. at 2.
5 Id. at 7.
6 Id. at 10-17.
7 Id. at 92.
8 Id. at 95, 99-120. The following were endorsed: (a) Motion for Reconsideration and
Request for Inhibition dated February 22, 2007 of Atty. Dealca; (b) Comment of Judge
Madrid; and (c) Rejoinder of Atty. Dealca.
9 Id. at 144.
10 Id. at 146-155.
11 Id. at 287-292.
12 Id. at 286.
13 Id. at 295-298.
14 Id. at 408.
15 Id. at 384.
16 Id. at 291, where IBP Commissioner Hababag observed in his report that:
There were other administrative/criminal cases lodged by the respondent against
fellow lawyer[s], court personnel, government employees. Most of all cases were
dismissed for utter lack of merit. All acts intensifies [sic] the conclusion that
respondent instead of going through the procedures provided for by the Rules in
the event of adverse ruling, order or decision of the court, have resorted to
harassment cases.
17 Reyes v. Chiong, Jr., A.C. No. 5148, July 1, 2003, 405 SCRA 212, 218.
18 Vitriolo v. Dasig, A.C. No. 4984, April 1, 2003, 400 SCRA 172, 179.
19 Sebastian v. Calis, A.C. No. 5118, September 9, 1999, 314 SCRA 1, 7.
20 Aguilar v. Manila Banking Corporation, G.R. No. 157911, September 19, 2006, 502
SCRA 354, 381.
21 Cervantes v. Sabio, A.C. No. 7828, August 11, 2008, 561 SCRA 497, 501; Dayag v.
Gonzales, A.M. No. RTJ-05-1903, June 27, 2006, 493 SCRA 51, 61-62.
22 Arnado v. Suarin, A.M. No. P-05-2059, August 19, 2005, 467 SCRA 402, 408.
23 Rollo, p. 384.
24 Separate Opinion of J. Melo inYale Land DevelopmentCorporation v. Caragao, G.R.

No. 135244. April 15, 1999, 306 SCRA 1, 12.
25 PEPSICO, Inc. v. Lacanilao, G.R. No. 146007. June 15, 2006, 490 SCRA 615, 623;
Complaint of Mr. Aurelio Indencia Arrienda Against SC Justices Puno, Kapunan, Pardo,
Ynares-Santiago, et al., A.M. No. 03-11-30-SC, June 9, 2005, 460 SCRA 1, 14;Tan v.
Judge Nitafan, G.R. No. 76965, March 11, 1994, 231 SCRA 129, 136.
26 Agoy v. Araneta Center, Inc., G.R. No. 196358, March 21, 2012, 668 SCRA 883,
889;Smith Bell and Company (Phils.), Inc. v. Court of Appeals, G.R. No. 56294, May 20,
1991, 197 SCRA 201, 207-208.
27 G.R. No. 82273, June 1, 1990, 186 SCRA 1, 5.
28 G. R. No. 127682, April 24, 1998, 289 SCRA 604, 608; citing Novino v. Court of
Appeals, No. L-21098, May 31, 1963, 8 SCRA 279, 280
29 Section 14. No decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based. No petition for review or
motion for reconsideration of a decision of the court shall be refused due course or denied
without stating the legal basis therefor.
30 Komatsu Industries (Phils.), Inc. v. Court of Appeals, supra note 28, citing Que v.
People, Nos. L-75217-18, September 21, 1987, 154 SCRA 160, 165; Nunal v.
Commission on Audit, G. R. No. 78648, January 24, 1989, 169 SCRA 356, 362-363; and
Cadiente v. Narisma, A.M. No. MTJ-91-576, En Banc Resolution, March 11, 1993.
31 Rollo, p. 368.
32 Id. at 292.
33 Re: Suspension of Atty. Rogelio Z. Bagabuyo, Former Senior State Prosecutor, Adm.
Case. No. 7006, October 9, 2007, 535 SCRA 200, 214; Reyes v. Chiong, Jr., A.C. No.
5148, July 1, 2003, 405 SCRA 212, 217.
34 Roxas v. De Zuzuarregui, Jr.,G.R. No. 152072, July 12, 2007, 527 SCRA 446, 463-
464 .
35 Rollo, p. 26.
36 People v. Ong, G.R. Nos. 162130-39, May 5, 2006, 489 SCRA 679, 688; Webb v.
People, G.R. No. 127262, July 24, 1997, 276 SCRA 243, 253.
37 Deutsche Bank Manila v. Sps. Chua Yok See, G.R. No. 165606, February 6, 2006,
481 SCRA 672, 695.
38 Duma v. Espinas, G.R. No. 141962, January 25, 2006, 480 SCRA 53, 67.
39 A.C. No. 4215, May21, 2001, 358 SCRA I.
40 Saa v. Integrated Bar of the Philippines, G.R. No. 132826, September 3, 2009, 598
SCRA 6.
41 Baculi v. Battung, A.C. No. 8920, September 28, 2011, 658 SCRA 209.
SUPREME COURT
Manila
EN BANC
G.R. No. 199139 September 9, 2014
ELSIE S. CAUSING, Petitioner,

vs.
COMMISSION ON ELECTIONS AND HERNAN D. BIRON, SR., Respondents.
DECISION
BERSAMIN, J.:
The issue is whether the relocation of the petitioner by respondent Municipal Mayor during the
election period from her office as the Local Civil Registrar to the Office of the Mayor just a few
steps away constituted a prohibited act under the Omnibus Election Codeand the relevant
Resolution of the Commission on Elections.
The Case
Petitioner Elsie Causing (Causing) assails the Resolution of the Commission on Elections En
Banc(COMELECEn Banc) promulgated on September 9, 2011 dismissing her complaint-
affidavit dated June 8, 2010 docketed as E.O. CaseNo. 10-131 entitled Elsie S. Causing v.
Hernan D. Biron, Sr. charging Municipal Mayor HernanD. Biron, Sr. (Mayor Biron) of Barotac
Nuevo, Iloilo with violating COMELEC Resolution No. 8737 in relation to Section 261 (g),(h),
and (x) of the Omnibus Election Code.1
Antecedents
On January 1, 1993, Causing assumed office as the Municipal Civil Registrar of Barotac Nuevo,
Iloilo. On May 28, 2010, Mayor Biron issued Memorandum No. 12, Series of 2010,2 which
reads:
Office Order No. 12

Series of 2010
MRS. ELSIE S. CAUSING

Municipal Civil Registrar
LGU Barotac Nuevo
Exigencies of service so requiring, you are hereby detailed at the Office of the Municipal Mayor
effective upon receipt of this Order and shall likewise receive direct orders from the undersigned
as to particular functions our office may require from time to time.
For your information and strict compliance.
xxxx
On the same date, Mayor Biron also issued Office Order No. 13 detailing Catalina V. Belonio
(Belonio), another municipal employee, to the office of the Local Civil Registrar of Barotac
Nuevo, Iloilo to assume the functions and duties as Local Civil Registrar-designate effective
upon receipt of the order. Office Order No. 13 reads:
Office Order No. 13

Series of 2010
MS. CATALINA V. BELONIO

Administrative Officer III
Office of the Municipal Mayor
Exigencies of service so requiring, you are hereby detailed at the Office of the Local Civil
Registrar and assume the functions and duties as LCR-Designate effective upon receipt of this
Order.
As such, you are hereby authorized to sign and issue documents relative thereto including the
claim for travel allowance and seminar expenses.
For you information and compliance.
x x x x3
On June 1, 2010, Mayor Biron issued to Causing Memorandum No. 17, Series of 2010, and
Memorandum No. 17-A, Series of 2010, respectively reading as follows:
Memorandum No. 17
You are hereby directed to report to the Office of the Mayor effective immediately upon receipt
of this Order and signing of MCR documents shall likewise be done at my office where you will
be provided with a table for this particular function.
For clarity purposes preparation ofsuch documents relative to civil registration provided for
under R.A.No. 9048 and R.A. 9255 shall be done at the office of MCR, after which, the said
documents shall be forwarded to you for your signature.
Additional duties and functions shall likewise be under my direct supervision.
Office Order No. 12 issued on May 28, 2010 is hereby repealed accordingly.
For your strict compliance.4

Memorandum No. 17-A
You are hereby directed to report to the Office of the Mayor effective immediately upon receipt
of this Order. You have to take action on R.A. 9048 and sign MCR documents at my office
where you will be provided with a table for this particular function.
For clarity purposes, preparation of documents relative to civil registration shall be done at the
office of MCR, after which, the said completed documents shall be forwarded to you for your
signature.
Additional duties and functions shall likewise be under my direct supervision.
Office Order No. 12 issued on May 28, 2010 is hereby repealed accordingly.
For your strict compliance.5
In view of the foregoing issuances by Mayor Biron, Causing filed the complaint-affidavit dated
June 8, 2010 in the Office of the Regional Election Director, Region VI, in Iloilo City, claiming
that Office Order No. 12 dated May 28, 2010 issued by Mayor Biron ordering her detail to the
Office of the Municipal Mayor, being made within the election period and without prior
authority from the COMELEC, was illegal and violative of Section 1, Paragraph A, No. 1, in
connection with Section 6 (B) of COMELEC Resolution No. 8737, Series of 2009, to wit:
xxxx
5. The issuance of Office Order No. 12 dated May 28, 2010 by the municipal mayor ordering my
detail atthe Office of the Municipal Mayor, made within the election period and without prior
written authority from the COMELEC is illegal and violative of Section 1, Paragraph A, No 1 in
connection with Section 6 (B) of COMELEC Resolution No. 8737 (Series of 2009) otherwise
known as " In the Matter of Enforcing the Prohibition against appointment or hiring of new
employees, creating or filing of new positions, giving any salary increase or transferring or
detailing any officer or employee in the civil service and suspension of local elective officials in
connection with the May 10, 2010 national and local elections;’
xxxx
8. Further, said transfer of detail does not fall under any of the exceptions to the requirement of
prior authority from the COMELEC, as provided under Section 7 of COMELEC Resolution No.
8737.
x x x x6
In his counter-affidavit,7 Mayor Biron countered that the purpose of transferring the office of
Causing was to closely supervise the performance of her functions after complaints regarding her
negative behavior in dealing with her co-employees and with the public transacting business in
her office had been received;8 that as the local chief executive, he was empowered to take
personnel actions and other management prerogatives for the good of public service; that
Causing was not being stripped of her functions as the Municipal Civil Registrar; that she was
not transferred or detailed to another office in order to perform a different function; and that she
was not demoted to a lower position that diminishedher salary and other benefits.9
On March 1, 2011, Atty. Elizabeth Doronilla, the Provincial Election Supervisor (PES),
recommended the dismissal of the complaint-affidavit for lack of probable cause to charge
MayorBiron with the violation of Section (h) of the Omnibus Election Code, as implemented by
On September 9, 2011, the COMELEC En Bancaffirmed the findings and recommendation of

PES Doronilla,10 observing that Mayor Biron did not transfer or detail Causing but only
required her to physically report to the Mayor’s office and to perform her functions thereat; and
that he did not strip her of her functions as the Municipal Civil Registrar, and did not deprive her
of her supervisory functions over her staff.11
Hence, this petition for certiorari.
Issues
Causing submits that Office Order 12 and Office Order 13 were gross violations of COMELEC
Resolution No. 8737, Series of 2009, that implemented Section 261 (g), (h), and (x) of the
Omnibus Election Code; that the prohibition contained in said provisions covered any movement
during the election period, whether it was by reassignment, appointment, promotion, or
demotion, regardless of rank, level or salaryof the affected personnel; that her detail to the Office
of the Mayor was a clear case of personnel movement prohibited by law;12 and that Mayor
Biron violated the provisions because he did not secure from the COMELEC the prior authority
to transfer or detail her during the election period.13
In addition, Causing claims that the COMELEC En Banccommitted grave abuse of discretion in
affirming the findings of PES Doronilla to the effect that there was no probable cause to hold
Mayor Biron liable for violating the Omnibus Election Code; and that the COMELEC En Banc
totally disregarded a crucial piece ofevidence — the existence of Office Order No. 13 that had
ordered the detail of Belonio as the Local Civil Registrar-designate.14
In his comment,15 Mayor Biron insists that the petition for certiorari should be dismissed
because of the petitioner’s failure to file a motion for reconsideration in the COMELEC, and
because of her failure to attach copies of equally important documents pertinent to the case.16
He emphasizes that Office Order No. 12 was issued by his office for the purpose of closely
supervising her in performing her functions after complaints about her behavior in dealing with
her co-workers and withthe public transacting business in her office had been received by his
office.17 He accuses her of willfully suppressing evidence, specifically the two office orders that
clarified that she would still be performing the functions of her office, albeit in the Office of the
Mayor.18
Mayor Biron reiterates his counter-affidavit, namely: (a) that there was no transfer or detail
involved, and any movement of Causing, if at all, was a purely physical transfer, that is, only a
few steps from her office to the Office of the Mayor, without any change in the present work,
agency, position, rank and compensation;19 and (b) that granting without admitting that the
movement constituted reassignment, the same was not covered by the provisions of COMELEC
Resolution No. 8737, which expressly limited the prohibition to either transfer or detail only.20
Mayor Biron posits that Office Order No. 13 purportedly ordering the detail of Belonio as Local
Civil Registrar-designate was a mere piece of paper, which Belonio never received.21 He points
out that his actions were upheld by the decision dated August 13,2010 of the Regional Office of
the Civil Service Commission dismissing the appeal by Causing of the assailed office orders.22
Finally, Mayor Biron asserts that Causing did not demonstrate that the COMELEC En
Banccommitted grave abuse of discretion in affirming the findings that there was no probable
causeto hold him liable for violation of the Omnibus Election Code.23
On its part, the COMELEC, through the Office of the Solicitor General (OSG),24 defends its
questioned resolution, stating that the words transferand detail, having already acquired
legislative and jurisprudential meanings, should not be understood in their literal sense; that
Causing was neither transferred nor detailed; that she was not moved to a different office with
the same rank, level and salary, or to another agency;25 and that Mayor Biron’s act of
transferring the office space of Causing was intra vires, and found legal support in the power of
supervision and control accorded to local chief executives under the Local Government Code.26
Ruling
1.
Procedural Issue:
Causing did not file a motion for reconsideration before filing the petition for certiorari
Section 7, Article IX-A of the Constitution states that unless otherwise provided by the
Constitution or by law, any decision, order, or ruling of each Commission may be brought to the
Court on certiorariby the aggrieved party within 30 days from receipt of a copy thereof. For this
reason, the Rules of Court(1997) contains a separate rule(Rule 64) on the review of the decisions
of the COMELEC and the Commission on Audit.27 Rule 64 is generally identical with
certiorariunder Rule 65,28 except as to the period of the filing of the petition for certiorari, that
is, in the former, the period is 30 days from notice of the judgment or final order or resolution
sought to be reviewed but, in the latter, not later than 60 days from notice of the judgment, order
or resolution assailed.29
Mayor Biron indicates that Causing did not file a motion for reconsideration before coming to
the Court. Causing submits, however, that she was not required to file the motion for
reconsideration because the only recourse of an aggrieved party from the decision of the
COMELEC was the filing of the petition for certiorariunder either Rule 64 or Rule 65.30
The well-established rule is that the motion for reconsideration is an indispensable condition
before an aggrieved party can resort to the special civil action for certiorariunder Rule 65 of the
Rules of Court. The filing of the motion for reconsideration before the resort to certiorariwill lie
is intended to afford to the public respondent the opportunity to correct any actual or fancied
error attributed to it by way of re-examination of the legal and factual aspects of the case.31
The rule is not absolute, however, considering that jurisprudence has laid down exceptions to the
requirement for the filing of a petition for certiorariwithout first filing a motion for
reconsideration, namely: (a) where the order is a patent nullity, as where the court a quohas no
jurisdiction; (b) where the questions raised in the certiorariproceedings have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon in the lower
court; (c) where there is an urgent necessity for the resolution of the question, and any further
delay would prejudice the interests of the Government, or of the petitioner, or the subject matter
of the petition is perishable; (d) where, under the circumstances, a motion for reconsideration
would be useless; (e) where the petitioner was deprived of due process, and there is extreme
urgency for relief; (f) where, in a criminal case, relief from an order ofarrest is urgent, and the
granting of such relief by the trial court is improbable; (g) where the proceedings in the lower
court are a nullity for lack of due process; (h) where the proceeding was ex parteor in which the
petitioner had no opportunity to object; and (i) where the issue raised is one purely oflaw or
public interest is involved.
A perusal of the circumstances of the case shows that none of the foregoing exceptions was
applicable herein. Hence, Causing should have filed the motion for reconsideration, especially
because there was nothing in the COMELEC Rules of Procedure thatprecluded the filing of the
motion for reconsideration in election offense cases.32
Accordingly, the petition must be dismissed.
2.
Substantive Issues:
Mayor Biron’s acts did not violate the Omnibus Election Code and the COMELEC Resolution
On the merits, the petition should also fail.
E.O. Case No. 10-131 was founded on Mayor Biron’s alleged violation of COMELEC
Resolution No. 8737,Series of 2009, in relation to Section 261(g), (h) and (x) of the Omnibus
Election Code, which respectively provide:
Resolution No. 8737
Section 1. Prohibited Acts

A. During the election period from January 10, 2010 to June 09, 2010, no public
official shall, except upon prior authority of the Commission:
1. Make or cause any transfer or detail whatsoever of any officer or employee in

the civil service, including public school teachers. "Transfer" as used in this
provision shall be construed as any personnel movement from one government
agency to another or from one department, division, geographical unit or
subdivision of a government agency to another withor without the issuance of an
appointment.
xxxx
Section 261(g), (h) and (x) of the Omnibus Election Code
Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense:
xxxx
(g) Appointment of new employees, creation of new position, promotion, or

giving salary increases. - During the periodof forty-five days before a regular
election and thirty days before a special election, (1) any head, official or
appointing officer of a government office, agency or instrumentality, whether
national or local, including government-owned or controlled corporations, who
appoints or hires any new employee, whether provisional, temporary or casual, or
creates and fills any new position, except upon prior authority of the Commission.
The Commission shall not grant the authority sought unless, it is satisfied that the
position to be filled is essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner that may influence
the election.
As an exception to the foregoing provisions, a new employee may be appointed in

case of urgent need: Provided, however, That notice of the appointment shall be
given to the Commission within three days from the date of the appointment. Any
appointment or hiring in violation of this provision shall be null and void.
(2) Any government official who promotes, or gives any increase of salary or
remuneration or privilege to any government official or employee, including those
in government-owned or controlled corporations.
(h) Transfer of officers and employees in the civil service. - Any public official
who makes or causes any transfer or detail whatever of any officer or employee in
the civil service including publicschool teachers, within the election period except
upon prior approval of the Commission. x x x x
(x) Suspension of elective provincial, city, municipal or barangay officer. - The

provisions of law to the contrary notwithstanding during the election period, any
public official who suspends, without prior approval of the Commission, any
elective provincial, city, municipal or barangay officer, unless said suspension
will be for purposes of applying the AntiGraft and Corrupt Practices Act in
relation to the suspension and removal of elective officials; in which case the
provisions of this section shall be inapplicable.
The only personnel movements prohibited by COMELEC Resolution No. 8737 were transfer and
detail. Transferis defined in the Resolution as "any personnel movement from one government
agency to another or from one department, division, geographical unit or subdivision of a
government agency to another with or without the issuance of an appointment;" while detailas
defined in the Administrative Code of 1987is the movement of an employee from one agency to
another without the issuance of an appointment.33 Having acquired technicaland legal meanings,
transferand detailmust be construed as such. Obviously, the movement involving Causing did not
equate to either a transfer or a detail within the contemplation of the law if Mayor Biron only
thereby physically transferred her office area from its old location tothe Office of the Mayor
"some little steps" away.34 We cannot accept the petitioner’sargument, therefore, that the phrase
"any transfer or detail whatsoever" encompassed "any and all kinds and manner of personnel
movement,"35 including the mere change in office location.
Moreover, Causing’s too-literal understanding of transfershould not hold sway because the
provisions involved here werecriminal in nature.1âwphi1 Mayor Biron was sought to be charged
with an election offense punishable under Section 264 of the Omnibus Election Code.36 It is a
basic rule of statutory construction that penal statutes are to be liberally construed in favor of the
accused. Every reasonable doubt must then be resolved in favor of the accused.37 This means
that the courts must not bring cases within the provision of a law that are not clearly embraced by
it. In short, no act can be pronounced criminal unless it is clearly made so by statute prior to its
commission (nullum crimen, nulla poena, sine lege). So, too, no person who is not clearly within
the terms of a statute can be brought within them.
Equally material is that Mayor Biron’s act of transferring the office space of Causing was rooted
in his power of supervision and control over the officials and employees serving in his local
government unit, in order to ensure the faithful discharge of their duties and functions.38 His
explanation that he transferred Causing’s work station from her original office to his office in
order to closely supervise her after his office received complaints against her could not be justly
ignored. Verily, she thereafter continued to perform her tasks, and uninterruptedly received her
salaries as the Municipal Civil Registrar even after the transfer to the Office of the Mayor.
The issuance of Office Order No. 13 by Mayor Biron detailing Belonio to the Office of the Local
Civil Registrar was not proof of Mayor Biron’s "crystal clear intention" to replace and transfer
her during the election period.39 As the COMELEC En Bancfound, Belonio did not receive the
order, and Causing remained as the Municipal Civil Registrar, leaving the detailing of Belonio
uncompleted. Without the actual appointment of Belonio as the Municipal Civil Registrar, it
would be unwarranted to criminally charge Mayor Biron ofviolating Section 261 of the Omnibus
Election Code.
It is interesting to note that aside from the present election offense case, Causing initiated an
administrative case in the Civil Service Commission to challenge her "reassignment" pursuant to
the same office orders. In that administrative case, she referred to the personnel movement not as
a transferor detail, but as a reassignmentthat constituted her constructive dismissal.40
On August 13, 2010, the CSC Regional Office No. 6 in Mandurriao, Iloilo City ruled
thatalthough Mayor Biron used the word detailin referring to the personnel movement effected,
the personnel action that actually took place, albeit a reassignment, was a valid reassignment,
viz: In the instant case, Causing is not stripped of her functions as Municipal Civil Registrar
(MCR). She was merely required to physically report to the Mayor’s Office and perform her
functions as Municipal Civil Registrar therein. Definitely, she isstill the MCR, albeit doing her
work physically outside of her usual work station. She is also not deprived of her supervisory
function over the staff as she continues to review their work and signs documents they prepared.
While she may encounter difficulty in performing her duties as a supervisor as she is not
physically near her staff, that by itself, however, does not mean that she has lost supervision over
them. That difficulty, nonetheless, is not tantamount to constructive dismissal. That Mayor Biron
prefers to ensure that Causing faithfully discharging her duties as MCR is principally an exercise
of his sound judgment and discretion. He alone has the discretion to decide when to resort to the
necessity of implementing changes in the workplace as he occupies the ideal vantage point and is
in the best position to determine the needs of his agency and how to satisfy those needs. Besides,
contrary to the allegations of Causing, none of the elements of constructive dismissal is
present.1âwphi1
WHEREFORE, the instant appeal of Elsie B. Causing is DISMISSED. Office Order No. 12.
Dated May 28, 2010 and Office Orders No. 17 and 17-A dated June 01, 2010 of Mayor Hernan
D. Biron, Sr. of Barotac Nuevo, Iloilo are AFFIRMED.41
Considering that reassignment was not prohibited by the Omnibus Election Code, there was no
probable cause to criminally charge Mayor Biron with the violation of the Omnibus Election
Code. WHEREFORE, the Court DISMISSES the petition for certiorari; AFFIRMS the
Resolution of the Commission on Elections promulgated on September 9, 2011 dismissing E.O.
Case No. 10-131 entitled Elsie S. Causing v. Hernan D. Biron, Sr.; and ORDERS the petitioner
to pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
(On Leave)
Chief Justice
ANTONIO T. CARPIO**
Associate Justice
Associate Justice
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice


(On Leave)
BIENVENIDO L. REYES
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice

LEONEN
Associate Justice
Associate Justice
(No Part)
Associate Justice
CERTIFICATION
opinion a£.the Court.
ANTONIO T. CARPIO
Footnotes
* On Wellness Leave.
** Acting Chief Justice in lieu of Chief Justice Maria Lourdes P. A. Sereno, who is on
Wellness Leave, per Special Order No. 1770.
1 Rollo, pp. 18-29.

2 Id. at 36.
3 Id. at 37.
4 Id. at 51.
5 Id. at 52.
6 Id. at 39-40.
7 Id. at 42-48.
8 Id. at 42.
9 Id. at 44-46.
10 Id. at 18-29.
11 Id. at 26-27.
12 Id. at 9-10.
13 Id. at 10.
14 Id. at 14.
15 Id. at 67-83.
16 Id. at 68-70.
17 Id. at 70-71.
18 Id. at 71-72.
19 Id. at 73.
20 Id. at 74.
21 Id. at 75-76.
22 Id. at 77-78.
23 Id. at 79-80.
24 Id. at 153-169.
25 Id. at 164.
26 Id. at 166.
27 Section 1, Rule 64 of the Rules of Courtprovides:
Section 1. Scope. — This Rule shall govern the review of judgments and final
orders or resolutions of the Commission on Elections and the Commission on
Audit. (n)
28 Section 2, Rule 64 of the Rules of Court states:
Section 2. Mode of review. — A judgment or final order or resolution of the

Commission on Elections and the Commission on Audit may be brought by the
aggrieved party to the Supreme Court on certiorariunder Rule 65, except as
hereinafter provided. (n)
29 See Pates v. Commission on Elections, G.R. No. 184915, June 30, 2009, 591 SCRA
481, 485-486.
30 Rollo, p. 123.
31 Malayang Manggagawa ng Stayfast Phils., Inc. v. National Labor Relations

Commission, G.R. No. 155306, August 28, 2013, 704 SCRA 24, 37, citing Villena v.
Rupisan, G.R. No. 167620, April 3, 2007, 520 SCRA 346, 358-359.
32 Rule 13 of the COMELEC Rules of Procedure provides:
Section 1. What Pleadings are not Allowed. - The following pleadingsare not
allowed:
(a) motion to dismiss;
(b) motion for a bill of particulars;
(c) motion for extension of time to file memorandum or brief;
(d) motion for reconsideration of anen banc ruling, resolution, order or

decision except in election offense cases;
(e) motion for re-opening or re-hearing of a case;
(f) reply in special actions and in special cases; and
(g) supplemental pleadings in special actions and in special cases.

33 Book V-A, Chapter 5, Section 26 (6).
34 Id. at 46.
35 Rollo, p. 10.
36 Section 264. Penalties. - Any person found guilty ofany election offense under this
Code shall be punished with imprisonment of not less than one year but not more than six
years and shall not be subject to probation. In addition, the guilty party shall be sentenced
to suffer disqualification to hold public office and deprivation of the right of suffrage. If
he is a foreigner, he shall be sentenced to deportation which shall be enforced after the
prison term has been served. Any political party found guilty shall be sentenced to pay a
fine of not less than ten thousand pesos, which shall be imposed upon such party after
criminal action has been instituted in which their corresponding officials have been found
guilty.
In case of prisoner or prisoners illegally releasedfrom any penitentiary or jail

during the prohibited period as provided in Section 261, paragraph (n) of this
Code, the director of prisons, provincial warden, keeper of the jail or prison, or
persons who are required by law to keep said prisoner in their custody shall, if
convicted by a competent court, be sentenced to suffer the penalty of prision
mayorin its maximum period if the prisoner or prisoners so illegally released
commit any act of intimidation, terrorism of interference in the election.
Any person found guilty of the offense of failure to register or failure to vote
shall, upon conviction, be fined one hundred pesos. In addition, he shall suffer
disqualification to run for public office in the next succeeding election following
his conviction or be appointed to a publicoffice for a period of one year following
his conviction.
37 People v. Deleverio, G.R. No. 118937-38, April 24, 1998, 289 SCRA 547, 566, citing
People v. Atop, G.R. Nos. 124303-05, February 10, 1998, 286 SCRA 157, 170-171.
38 Section 444, Republic Act No. 7160 ( Local Government Code).
39 Rollo,p. 80.
40 Id. at 110-111.
41 Id.at116-117.
SUPREME COURT
Manila
EN BANC
A.M. No. 2008-23-SC September 30, 2014
ALLEGED LOSS OF VARIOUS BOXES OF COPY PAPER DURING THEIR

TRANSFER FROM THE PROPERTY DIVISION, OFFICE OF ADMINISTRATIVE
SERVICES (OAS), TO THE VARIOUS ROOMS OF THE PHILIPPINE JUDICIAL
ACADEMY.
x-----------------------x
A.M. No. 2014-025-Ret.
RELEASE OF COMPULSORY RETIREMENT BENEFITS UNDER R.A. No. 8291 OF

MR. ISIDRO P. AUSTRIA, FORMER SUPPLY OFFICER II, PHILIPPINE JUDICIAL
ACADEMY, SUPREME COURT.
DECISION
BERSAMIN, J.:
Before us is the administrative matter inquiring into the loss of 140 reams of long copy paper,and
40 reams of short copy paper, valued at P27,000.00, delivered to the Philippine Judicial
Academy (PHILJA). The loss was criminal theft by all means.
Also for our consideration now is the application for the release of his retirement benefits due to
his intervening compulsory retirement from the service on his 65th birthday on August 17, 2012
of one of the employees under investigation.
Antecedents
On October 23, 2008, Boc’s Trading Co., Inc. delivered 1,300 reams of short copy paper and
1,100 reams of long copy paper to the Supreme Court intended for the Philippine Judicial
Academy (PHILJA). As instructed by Administrative Officer Ma. Christina M. Recio, the
delivery was initially accepted by Ryan Orcullo, the Property Custodian of the PHILJA, because
Supply Officer II Isidro Austria and Store Keeper IV Lenin Mario Ordoñez, both of the Property
and Supply Section, PHILJA Administrative Office, were then not around. The first batch of
copy paper, consisting of 300 reams long copy paper and 800 reams of short copy paper, were
unloaded under the supervision of Orcullo and broughtdirectly to the stock rooms and available
spaces at the premises of the PHILJA. When Orcullo left for his lunch break, Ordoñez took over.
The rest of the delivery were unloaded from the delivery truck at the Centennial Building of the
Court upon the instruction of Ordoñez.
With the help of Judicial Staff Employee II Elizalde S. Carmona, Ordoñez then initiated the
transfer of the copy paper to the stockroom and the Reproduction Room (Repro Room) of the
Office of the Court Administrator (OCA) in the Supreme Court Multipurpose Building located in
the SC New Building. In the afternoon of October 23, 2008, Orcullo informed Administrative
Officer Recio that 400 reams of short copy paper and 40 reams of long copy paper were missing.
In his letter dated October 27,2008, Atty. Rodel O. Hernandez formally reported the missing
boxes of copy paper belonging to the PHILJA to PHILJA Vice Chancellor Justice Justo P.
Torres, Jr., disclosing that the preliminary investigation conducted by Administrative Officer
Recio and HR Officer III Ma. Lourdes Pelaus revealed that: (a) Austria had admitted having used
the SC’s Lite Ace van with Plate No. SEF 868 to unload 50 reams of short bond paper contained
in five boxes in Intramuros to pay his outstanding personal debt of P5,000.00; but had denied any
involvement in the loss of the other boxes of copy paper; (b) Ordoñez had claimed that he
supervised and made the transfer of 300 reams in 30 boxes of long bond paper to the OCA stock
room, but the verification had shown only 270 reams in 27 boxes; he had admitted riding the
PHILJA van with Plate No. SFV 785 to deliver the reams of copy paper to the Repro Room
without the proper trip ticket, leaving the boxes ofcopy paper there without padlocking the
stockrooms; (c) driver Eusebio M. Glor of the Administrative Division had admitted driving the
Lite Ace van with Plate No. SEF 868 to Intramuros with Austria on board, and had
acknowledged facilitating the unlawful transfer of 50 reams of copy paper in 50 boxes; but had
denied knowledge of the remaining missing boxes of copy paper; and (d) Carmona had driven
the PHILJA van with Plate No. SFV 785 upon the request of Ordoñez without the corresponding
trip ticket, and had assisted Ordoñez only in the transfer of the boxes from the OCA stockroom
to the Repro Room.1
The Office of Administrative Services (OAS) directed Austria, Ordoñez, Glor and Carmona to
submit their respective comments, and to show cause why they should not be held
administratively liable for grave misconduct, and/or conduct prejudicial to the best interest of the
service. They were further summoned to appear before the OAS for investigation.
In his comment,2 Ordoñez reiterated his denial of any knowledge of the loss of the 30 boxes of
long copy paper from the OCA stockroom, but admitted that he had initiated the transfer upon
the instructions of Administrative Officer Recio. He claimed that he had merely endorsed the
copy paper to Orcullo as the PHILJA Property Custodian tasked with overseeing the supplies in
the stockroom; that it was already the practice in the PHILJA to bring to or take supplies from
the Repro Room with the help of any available PHILJA drivers even without any corresponding
trip tickets although the drivers might have other driving assignments; and that even the guards
were aware of the practice.
On his part, Austria conceded that he had used the 50 reams of papers to pay for the copy paper
he had borrowed from one "Mr. Roy" of the Jimmy Roy Trading, a supplier of toners, inks, and
sometimes copy paper. He denied that the copy paper was payment for his personal loan,
maintaining that he had only borrowed the copy paper in order to avoid delays for an upcoming
PHILJA training. Recalled by the OAS, however, Austria retracted, and pointed to Glor as
having taken the copy paper. According to him, Glor even planned their purported escape.
Glor declared that Austria had instructed him to load five boxes of short copy paper in the van,
and directed him to proceed to a place in Intramuros, where someone else unloaded the copy
paper. Recalled by the OAS, Glor likewise recanted, averring instead that the paper had been
unloaded by Austria on Orosa St. near the Philam Insurance Company; and that he had been
coached by Austria on what their version would be.3
After conducting the investigation,the OAS concluded that Ordoñez had failed to exercise the
required diligence in the performance of his task in overseeing the delivery of the copy paper by
not seeing to the safe storage of the copy paper, and by not properly endorsing the copy paper to
his office or to the security guard assigned in the areawhere he had left the reams of copy paper.
The OAS pointed out that the loss of the copy paper from the OCA stockroom had been
Ordoñez’s fault, because he was the person in charge of the stockroom; that Ordoñez’s
negligence had facilitated the theft of the 50 reams by Austria and Glor; and that the theft had
resulted in the loss of approximately P27,000.00 by the Court.4
The OAS found that Austria and Glor had committed perjury by giving false statements, as borne
outby the incongruence of their initial narration of facts and their subsequent statements blaming
each other as the perpetrator of the theft of the copy paper; that it was clear that their act of
taking the copy paper without authorityconstituted theft; that they were liable for serious
dishonesty considering that their acts were attended by certain circumstances that rendered their
offense serious, namely: (a) damage and prejudice to the Government; (b) moral depravity; and
(c) employment of fraud or falsification ofofficial documents in committing the dishonest acts.5
As to Carmona, the OAS observed that he was still responsible for securing the trip ticket as a
driver even if he had been requested to help Ordoñez,6
The OAS ultimately recommended as follows:
A. x x x
I. For having been found guilty of Gross Dishonesty, Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service, Mesrs. Isidro T. Austria
and Eusebio M. Glor, be meted with the penalty of DISMISSAL from the service
with forfeiture of benefits except accrued leave credits;
II. For having been found guilty ofGross Neglect of Duty, Mr. Lenin Mario M.
Ordoñez, be meted the penalty of DISMISSAL from the service with forfeiture of
benefits except accrued leave credits;
III. Mesrs. Austria, Glor and Ordoñez, be directed to restitute to the Court the
copy papers stolen; and
IV. For driving without a trip ticket to the PHILJA Reproduction Room, Mr.
Elizalde S. Carmona, be WARNED that a repetition of similar acts in the future
shall be dealt with more severely.
B. The Security Division be reminded to strictly implement the Resolution of the Court dated
July 11, 1989, Re: Security Guidelines for the Supreme Court; and directed toenforce the use of
trip tickets with corresponding Gate Pass, Requisition and Issue Slip (RIS), or transfer slip,
whichever is appropriate for the property/ies or supplies to be brought outside the Court’s
premises.
C. This Office submits for the Court’s information, the Memorandum with supporting documents
dated February 20, 2009 of Justice Justo P. Torres, Jr., Vice Chancellor, PHILJA, providing (a)
their stock position as of December 2008; (b) documents showing distribution of supplies and
materials to the various PHILJA offices/divisions; (c) information that the PHILJA has
implemented stricter rules in order to resolve any form or (sic) waste or pilferage at PHILJA.
For the Court’s consideration.7
Meanwhile, on May 4, 2009, Ordoñez resigned from the PHILJA, citing the approval of his
family’s visa application for immigrant status in Canada as the reason for his resignation.8 On
June 23, 2009, the Court En Banc approved his resignation, subject tothe usual clearance
requirements and without prejudice to the outcome of this administrative case.9 Subsequently,
the parties manifested that they were submitting the case for resolution upon the pleadings
filed.10
On August 20, 2014, the Third Division directed the consolidation of A.M. No. 2014-025-Ret.
with A.M. No. 2008-23-SC.11 The Banc accepted the consolidation on September 9, 2014.
Ruling
After reviewing the records, we are satisfied with and adopt the findings of the OAS.
There is grave misconduct when the elements of corruption, clear intent to violate the law, or
flagrant disregard of established rule are present.12 Dishonesty is defined as a disposition to lie,
cheat, deceive or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or
integrity in principle; lack of fairness and straight forwardness.13 Both gross misconduct and
dishonesty are grave offenses that are punishable by dismissal even for the first offense.14
Conduct prejudicial to the best interestof the service is also classified as a grave offense under
Section 22(t) of the Omnibus Rules Implementing Book V of Executive Order No. 292 and other
pertinent Civil Service laws, with the penalty for the first offense being suspension for six (6)
months and one (1) day to one (1) year, and for the second offense being dismissal.15 The Civil
Service laws and rules contain no description of what specific acts constitute the grave offense of
conduct prejudicial to the best interest of the service. However, jurisprudence has been
instructive, with the Court having considered the following acts or omissions as constitutive of
conduct prejudicial to the best interest of the service, namely: (a) misappropriation of public
funds; (b) abandonment of office; (c) failure to report back to work without prior notice; (d)
failure to keep public records and property safe; (e) making false entries in public documents;
and (f) falsification of court orders.16
In Court Administrator v. Sevillo,17 the act of stealing mail matter by the respondent, a process
server in the Municipal Circuit Court of Jordan Buenavista-Nueva Valencia, Guimaras, was held
to constitute "grave dishonesty and grave misconduct or conduct prejudicial to the best interest
of the service," with the Court opining:
It can never be said often enough that the conduct of judges and court personnel must not only be
characterized by propriety and decorum at all times but must also be above suspicion. In this
regard, respondent Sevillo has been grossly deficient. By stealing mail matters he has blatantly
degraded the judiciary and diminished the respect and regard of the people for the court and its
personnel. Every employee of the judiciary should be an example of integrity, uprightness and
honesty. Lamentably, respondent has become no better than a common thief; consequently, he
does not deserve to stay a minute longer in the judicial service.
In Re: Pilferage of Supplies in the Stockroom of the Property Division, OCA Committed by
Teodoro L. Saquin, Clerk II,18 the respondent admitted stealing office supplies from the OCA,
and selling the supplies to sidewalk vendors in front of the Isetann Department Store along Recto
Avenue corner Quezon Boulevard, Manila. The Court meted the penalty of dismissal from the
service, with forfeiture of all leave credits and retirement benefits, and with prejudice to re-entry
to any Government entity or any Government-owned or Government-controlled corporation; and
further directed the referral of the records of the case to the Department of Justice for
investigation with a view to the filing, if warranted, of the appropriate criminal proceedings.
For making false statements, committing perjury and stealing the copy paper, Austria and Glor
are guilty of grave misconduct,19 gross dishonesty, and conduct prejudicial to the best interest of
the service. Their dismissal from the service is the proper penalty, with forfeiture of retirement
benefits, except accrued leave credits, and perpetual disqualification from reemployment in the
Government. In addition, the records of the case should be referred to the Department of Justice
for investigation with a view to the filing, if warranted, of the appropriate criminal proceedings.
On August 17, 2012 and during the pendency of A.M. No. 2008-23-SC, Austria turned 65 years
old and was deemed compulsorily retired from the service. He applied for retirement benefits
under Republic Act No. 8291 (The Government Service Insurance Act of 1997), and his
application was docketed as A.M. No. 2014-025-Ret. The OAS recommended on July 30, 2104
that the benefits of Austria under Republic Act No. 8291 could be paid to him by the
Government Service Insurance System "subject to the usual clearance requirements." As stated,
the Third Division of the Court directed the consolidation of A.M. No. 2014-025-Ret. with A.M.
No. 2008-23-SC, and the Banc accepted the consolidation on September 9, 2014.
The fact that Austria meanwhile reached the compulsory retirement age did not render A.M. No.
2008-23-SC moot, let alone release him from whatever liability he had incurred while in the
active service. The jurisdiction acquired by the Court continues despite his compulsory
retirement. Indeed, the Court retains its jurisdiction to declare a respondent either innocent or
guilty of the charge even in the extreme case of the respondent’s supervening death. If innocent,
the respondent receives the vindication of his name and integrity by declaring his service in the
Government to be well and faithful; if guilty in anyway, he deserves the sanction just and
appropriatefor his administrative sin.20
Where a respondent is found guilty ofa grave offense but the penalty of dismissal is no longer
possible because of his compulsory retirement, the Court has nevertheless imposed the just and
appropriate disciplinary measures and sanctions by decreeing the forfeiture of all benefits to
which he may be entitled, except accrued leave credits, with prejudice to reemployment in any
branch or instrumentality of the Government, including Government-owned and Government-
controlled corporations,21 and by imposing a fine to be deducted from the retirement benefits. In
Orfila v. Arellano, respondent Human Rights Resource Management Officer II, being guilty of
misconduct, was meted a fine equivalent toher salary for six (6) months to be deducted from
whateverleave and retirement benefits or privileges she was entitled to.22
Austria is now being held guilty of the grave offenses of gross dishonesty and grave misconduct,
(either of which is punishable by dismissal for the first offense), as well as of conduct prejudicial
to the best interest of the service, but since the penalty of dismissal could no longer be imposed
on him, the Court forfeits all benefits to which hecould be entitled, except accrued leave credits,
with prejudice to re-employment in any branch or instrumentality of the Government, including
Government-owned and Government-controlled corporations, and fines him in the amount
equivalent to his salary for his last six (6) months in the service to be deducted from whatever
accrued leave benefits remained for him.Hence, his request in A.M. No. 2014-025-Ret. for the
release of his compulsory retirement benefits under R.A. No. 8291 is denied.
Ordoñez is guilty of gross neglect of duty. Even if he did not have a direct hand in the theft of the
copy paper,his negligence facilitated the theft. As correctly found by the OAS, he failed to safely
store and to endorse the copy paper to the assigned security personnel; and that he did not also
conduct an actual count and make a record of all the reams of copy paper delivered to his
safekeeping. Had hebeen diligent in performing his tasks and responsibilities as a Storekeeper
IV,23 Austria and Glor would not have managed to take out the reams of copy paper out ofthe
stockroom, of which he was then in charge. Indeed, he soadmitted this during the
investigation.24
Neglect of duty is the failure to giveone’s attention to a task expected of him. Gross neglect is
such neglect that, from the gravity of the case or the frequency of instances, becomes so serious
in its character as to endanger or threaten the public welfare. The term does not necessarily
include willful neglect or intentional official wrongdoing.25 Those responsible for such act or
omission cannot escape the disciplinary power of this Court.26 The imposable penalty for gross
neglect of duty is dismissal from the service.
Ordoñez resigned effective May 4, 2009, purportedly to migrate to Canada.27 His resignation
would not extricate him from the consequences of his gross neglect of duty, because the Court
has not allowed resignation to be an escape or an easy way out to evade administrative liability
or administrative sanction.28 Ordoñez remains administratively liable, but his resignation
prevents his dismissal from the service. A fine can be imposed, instead, and its amount is subject
to the sound discretion of the Court. Section 56 (e) of Rule IV of the RevisedUniform Rules
provides that fine as a penalty shall be in an amount not exceeding the salary for six months had
the respondent not resigned, the rate for which is that obtaining at the time of his resignation.29
The fine shall be deducted from any accrued leave credits, with the respondent being personally
liable for any deficiency that should be directly payable to this Court. He is further declared
disqualified from any future government service.
The recommended sanction for Cardona is warning. Such sanction is sufficient considering that
Ordoñez merely solicited the help of Cardona in transferring the reams of copy paper from the
OCA stockroom to the Repro Room in the SC New Building. Although Carmona admittedly
used a trip ticket not authorized for the transfer, we cannot appreciate that fact against him
because the rule on securing trip tickets was notyet strictly implemented at that time. At any rate,
it nowhere appeared that Carmona directly participated in the theft.1âwphi1
We emphasize that all court employees, being public servants in the Judiciary, must always act
with a high degree of professionalism and responsibility. Their conduct must not only be
characterized by propriety and decorum, but must also be inaccordance with the law and court
regulations. To maintain the people’s respect and faith in the Judiciary, they should be upright,
fair and honest. Theyshould avoid any act or conduct that tends to diminish public trust and
confidence in the courts.30
WHEREFORE, the Court FINDSand DECLARES:
1. EUSEBIO M. GLORandISIDRO T. AUSTRIAguilty of gross dishonesty, grave

misconduct and conduct prejudicial to the best interest of the service, and, accordingly;
(a) EUSEBIO M. GLORis DISMISSED FROM THE SERVICE WITH

FORFEITURE OF ALL BENEFITS EXCEPT ACCRUED LEAVE CREDITS;
and
(b) ISIDRO T. AUSTRIA FORFEITS all his retirement benefits, except accrued
leave credits, WITH PREJUDICE TO REEMPLOYMENT IN ANY BRANCH
OR INSTRUMENTALITY OF THE GOVERNMENT, INCLUDING
GOVERNMENT-OWNED AND GOVERNMENT-CONTROLLED
CORPORATIONS, and is ORDERED TO PAY A FINE equivalent to his salary
for six months computed at the salary rate of his former position at the time of his
resignation, to be deducted from whatever accrued leave benefits remained for
him;
2. LENIN MARIO M. ORDOÑEZ guilty of gross neglect of duty, and, accordingly, he is

ORDERED TO PAY A FINE equivalent to his salary for six months computed at the
salary rate of his former position at the time of his resignation; and he is declared
DISQUALIFIED FROM RE-EMPLOYMENT IN ANY BRANCH OR
INSTRUMENTALITY OF THE GOVERNMENT, INCLUDING GOVERNMENT-
OWNED OR CONTROLLED CORPORATIONS.
The Court DENIES the application of ISIDRO T. AUSTRIA in A.M. No. 2014-025-Ret. for the
release of his compulsory retirement benefits under Republic Act No. 8291.
The Court ORDERS EUSEBIO M. GLOR, ISIDRO T. AUSTRIA and LENIN MARIO M.
ORDONEZ to restitute to the Court the amount of P27,000.00 as cost of the copy paper stolen.
ELIZALDE S. CARMONA is WARNED that a repetition of a similar act in the future shall be
dealt with more severely.
The Office of the Court Administrator is instructed to refer the records of this administrative case
to the Department of Justice for investigation and filing, if warranted, of the appropriate criminal
proceedings against ISIDRO T. AUSTRIA, EUSEBIO M. GLOR and LENIN MARIO M.
ORDONEZ.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
(On Official Leave)

Chief Justice
ANTONIO T. CARPIO**
Associate Justice
Associate Justice
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

(On Official Leave)

JOSE PORTUGAL PEREZ***
Associate Justice
Associate Justice

(On Official Leave)

ESTELA PERLAS-BERNABE****
Associate Justice
Associate Justice
Associate Justice
Footnotes
** Acting Chief Justice per Special Order No. 1803 dated September 24, 2014.
*** On official leave.
**** On official leave.
1 Rollo, pp. 239-240.
2 Id. at 252-256.
3 Id. at 165-167.
4 Id. at 8-10.
5 Id. at 10-11.
6 Id. at 11-12.
7 Id. at 12-13.
8 Id. at 266.
9 Id. at 263-264.
10 See Rollo(A.M. No. 2014-025-Ret.).
11 Entitled Release of Compulsory Retirement Benefits under R.A. No. 8291 of Mr.
Isidro P. Austria, Former Supply Officer II, Philippine Judicial Academy, Supreme
Court.
12 Vertudes v. Buenaflor,G.R. No. 153166, December 16, 2005, 478 SCRA 210, 233,
234.
13 Japson v. Civil Service Commission, G.R. No. 189479, April 12, 2011, 648 SCRA
532, 543-544.
14 Rojas, Jr. v. Mina, A.M. No. P-10-2867, June 19, 2012, 673 SCRA 592, 599.
15 Government Service Insurance System (GSIS) v. Mayordomo, G.R. No. 191218, May
31, 2011, 649 SCRA 667, 687.
16 Id. at 686-687.
17 A.M. No. P-95-1159, March 20, 1997, 270 SCRA 190, 192.
18 A.M. No. 99-10-03-OCA. June 16, 2000, 333 SCRA 500, 505.
19 Padua v. PazA.M. No. P-00-1445. April 30, 2003, 402 SCRA 21.
20 Perez v. Abiera, Adm. Case No. 223-J, June 11, 1975, 64 SCRA 302, 306-307.
21 Re Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia

Serafico, A.M. No. 2008-20-SC, March 15, 2010, 615 SCRA 186, 205.
22 Orfila v. Arellano, A.M. Nos. P-06-2110 and P-03-1692, February 13, 2006, 482
SCRA 280, 308.
23 Rollo, p. 207; his duties and responsibilities as Storekeeper IV included:
xxxx
2. Records cost, amount and kind of equipment, supplies, materials, or tools

received and issued;
3. Checks, verifies and inspect articles received as to quality, quantity and

conformance to specifications;
xxxx
5. Issues supplies from stocks according to requisition orders; requisitions articles

to fill orders;
xxxx
7. Prepares and signs daily summaries of issues and balances of supplies and
materials;
xxxx
9. Be responsible for the safe storage and accurate inventory of supplies and
materials.
24 Rollo, pp. 112-113.
25 Clemente v. Bautista A.M. No. P-10-2879 (Formerly A.M. OCA I.P.I. No. 09-3048-
P), June 3, 2013, 697 SCRA 10, 18.
26 Hao v. AndresA.M. No. P-07-2384, June 18, 2008, 555 SCRA 8, 24.
27 Rollo, p. 266.
29 Concerned Citizen v. Catena, A.M. OCA IPI No. 02-1321-P, July 16, 2013, 701
SCRA 255, 267.

SUPREME COURT
Manila
EN BANC
A.M. No. 2010-21-SC September 30, 2014
Re: ANONYMOUS LETTERCOMPLAINT ON THE ALLEGED INVOLVEMENT AND

FOR ENGAGING IN THE BUSINESS OF LENDING MONEY AT USURIOUS RATES
OF INTEREST OF MS. DOLORES T. LOPEZ, SC CHIEF JUDICIAL STAFF OFFICER,
AND MR. FERNANDO M. MONTALVO, SC SUPERVISING JUDICIAL STAFF
OFFICER, CHECKS DISBURSEMENT DIVISION, FISCAL MANAGEMENT AND
BUDGET OFFICE.
DECISION
BERSAMIN, J.:
We hereby resolve the anonymous complaint denouncing the moonlighting activities of the
respondents by engaging in onerous money lending activities targeting the low-income workers
of the Court.
Antecedents
An undated letter-complain1 addressed to the Complaints and Investigation Division (CID) of

the Office of Administrative Services (OAS) of the Supreme Court triggered this administrative
matter. The letter complaint, purportedly sent by a concerned employee who chose to remain
anonymous, assailed the profitable money-lending with usurious interest scheme engaged in by
respondents Dolores T. Lopez, an SC Chief Judicial Staff Officer, and Fernando M. Montalvo,
an SC Supervising Judicial Staff Officer, both of the Checks Disbursement Division of the
Court’s Fiscal Management and Budget Office (FMBO). It stated that the respondents had been
involved in the money-lending activities targeting the low-salaried employees of the Court like
the drivers and employees of the janitorial services; that such money-lending had been going on
with the help of the personnel of the Checks Disbursement Division of FMBO by enticing
employees of the Court to pledge forthcoming benefits at a discounted rate; and that around 300
Automated Teller Machine (ATM) cards were surrendered by the borrowers to the respondents
as collateral for the individual borrowings.2
On September 29, 2010, the OAS directed the respondents to comment on the letter-complaint,3
to which they respectively complied.
In her memorandum dated September 30, 2010,4 Lopez neither denied nor admitted the
allegations against her. She dared the OAS instead to allow her to confront the complainant head
on and to openly address each issue, and, in turn, she would waive the filing of the comment
because the comment would be unnecessary due to anonymous complaints being a dime a
dozen.5 She insinuated that despite anonymous complaints of more serious nature against
employees, officials, and even the Justices of the Court having abounded, the OAS did not pay
attention to, and did not dignify such complaints by requiring the individualscomplained against
to comment.6
In his memorandum dated September 30. 2010,7 Montalvo dismissed the letter-complaint as
maliciously sent for the purpose of tarnishing his reputation and the reputation of his office. He
denied being engaged in the lending business in the Court. Like Lopez, he insinuated that the
OAS had not required any comments from other employees and officials of the Court against
whom more serious accusations had been raised.8
Lopez and Montalvo appeared before the CID on December 1, 2010 and December 8, 2010 for
the clarificatory hearing.9
During the hearing, Lopez requested the CID to identify the anonymous complainant and to
allow her to confront the latter.10 However, the CID denied her request, explaining that there
was no need to identify the complainant because she herself could either confirm or repudiate the
allegations of the letter-complaint against her.11 Being thereafter reminded of her oath to tell the
truth, she relented and revised her earlier statements by clarifying that she was not denying all
the allegations against her.
Specifically, Lopez denied the allegation that she had lent money to around 300 court employees,
and that she had held their ATM cards in her custody as collateral;12 but admitted having lent
money to only about 20 personnel of the janitorial agency and to some low-ranking employees of
the Court, like the utility workers and messengers for a period of two years,13 with the amounts
lent ranging from P500.00 to P2,000.0014 depending upon the amounts needed and the
availability of money. She said that she would receive only P10.00 for every P100.00 borrowed
that she did not consider as interest.15 She insisted that she did not require her borrowers to pay
her the P10.00 for every P100.00 borrowed because they voluntarily gave her the amount; and
that she did not engage in money lending because she did not offer to lend money to anyone.
Lopez acknowledged that she was the only person in the Checks Disbursement Division of
FMBO who had lent money, absolving Montalvo and the other members of the staff of that
office by saying that they had nothing to do with her transactions.16 She stressed that her
transactions did not result in any conflict of interest, and did not compromise the integrity of her
office because her transactions had been done during break times or outside of office hours.17
On his part, Montalvo denied the charges against him, maintaining that the anonymous letter-
complaint was a malicious attempt to damage his reputation and the reputation of his office.18
He declared that he lent money only to closest acquaintances aswas customary among friends.19
After completing its investigation,the CID received a second undated but still anonymous letter-
complaint,20 which alleged that Lopez had continued her lending activities at usurious rates of
interest despite the pendency of the first complaint.
In her memorandum dated June 6, 2011,21 Atty. Eden Candelaria, the Chief Administrative
Officer of the OAS, directed Lopez to comment on the second complaint within five days from
receipt.22
In response, Lopez requested for the transcripts of her testimony, and to be allowed to submit an
omnibus manifestation to address the second anonymous letter-complaint.23 On his part,
Montalvo filed a motion for the immediate resolution of the letter-complaint concerning him.24
In the resolution promulgated on October 4, 2011,25 the Court granted Lopez’s request but
merely noted Montalvo’s motion. It is pointed out, however, that Lopez ultimately did not file
the omnibus manifestation.
Report & Recommendation of the OAS
On March 24, 2011, the OAS submitted its report and recommendations,26 whereby it
recommended the dismissal of the letter complaint against Montalvo for lack of merit;27 but
endorsed Lopez’s suspension "for thirty (30) days for lending money with interest to a number of
economically challenged employees and janitors; and directed her to immediately cease and
desist from engaging in any form of personal business and other financial transactions, with a
warning that a repetition of the same or similar act in the futurewill be dealt with more
severely."28
Ruling of the Court
An anonymous complaint is always received with great caution, originating as it does from a
source unwilling to identify himself or herself. It is suspect for that reason. But the mere
anonymity of the source should not call for the outright dismissal of the complaint on the ground
of its being baseless or unfounded provided its allegations can be reliably verified and properly
substantiated by competent evidence,29 like public records of indubitable integrity, "thus
needing no corroboration by evidence to be offered by the complainant, whose identity and
integrity could hardly be material where the matter involved is of public interest,"30 or the
declarations by the respondents themselves in reaction to the allegations, where such declarations
are, properly speaking, admissions worthy of consideration for not being self-serving.
Here, therefore, the anonymous complaint has to be dealt with, and its veracity tested with
utmost care, for it points the finger of accusation at two employees of the Court for engaging in
money-lending activities at unconscionable rates of interest, with low-ranking employees of the
Court as their targets. That such a complaint, albeit anonymous, has been made impacts on their
reputations as individuals as well as on their integrity as personnel of the Court itself. We cannot
ignore the complaint, hoping that it will be forgotten, but must inquire intoit and decide it despite
the anonymity of the complainant. Any conduct, act or omission on the part of all those involved
in the administration of justice that violates the norms of public accountability and diminishes or
even justtends to diminish the faith of the people in the Judiciary cannot be countenanced.31 It is
for this reason that all anonymous but apparently valid complaints are not quickly dismissed but
are justly heard and fairly investigated and determined by this Court.
The respondents are both responsible fiduciary officers in the FMBO, the office that is in charge
of all the financial transactions of the Court, including the preparation and processing of
vouchers to cover the payment of salaries, allowances, office supplies, equipment and other
sundry expenses, utilities, janitorial, and security services, and maintenance and other operating
expenses, and the issuance of corresponding checks therefor. Indeed, the respondents discharge
the delicate task of handling the payment of employees’ salaries and allowances.
1.
Re: Montalvo
The Court concurs with the findings of the OAS that the complaint against Montalvo had no
factual basis.His involvement in money lending was not shown to be habitual, going on only as
far as accommodating his friends during their personal emergencies without imposing any
interests.
The statement in the letter-complaint to the effect that both respondents have been in the
forefront of syndicated lending activities was not supported by any proof. It is notable that
Montalvo firmly denied the allegations against him, and that Lopez corroborated his denial.32
Accordingly, the complaint against Montalvo should be dismissed.
2.
Re: Lopez
As to Lopez, no witnesses appeared during the investigation to prove the allegations of the
complaint. But the complaint should still be assessed on the basis of her several admissions inthe
course of the December 8, 2010 investigation to the effect that: (a) she had repeatedly33 lent
money to about 10 to 20 court employees;34 (b) the borrowers had voluntarily paid about 10%
interest on the money borrowed (i.e., P10 for every P100 borrowed);35 (c) the money lent had
ranged from P500.00 to P5,000.00;36 (d) her regular borrowers had included the utility
workers,37 and the low-salaried court employees,38 like court messengers;39 (e) she had
engaged insuch activity for more than two years already;40 (f) she had attended to the
transactions around 3:30 o’clock in the afternoon and at times during break time;41 (g) she had
taken hold of at least 10 but not morethan 20 ATM cards of her borrowers as collateral;42 (h) the
money she had lent to the borrowers had been proceeds from her Coop or SCSLA personal
loans;43 and (i) she had also accommodated her office staff whenever they did not have money
in going to and from the office.44
In its evaluation of the anonymous complaint as to Lopez, the OAS observed and found thusly:
From the foregoing, this Office has established that Ms. Lopez is guilty of lending money with
interest which at most would reach up to 10% of the total amount borrowed. While she denied
that the loan is somewhat like the famously known "5-6" loan, as she denied charging the
employees with usurious interest because she is just accommodating them to lessen their
financial burdens and it is the employees themselves who would insist on paying interest
voluntarily, this Office nonetheless finds the act improper. Even if she was motivated solely by
her earnest desire to help employees in dire need of money, the fact remains that she lends
money for a consideration. It would have been different perhaps if she lends money without any
"voluntary" interest as she claimed.
In fact, she is not even obliged to lend money to them. It is beyond her duty to answer every
financial difficulties of the employees. While there is no law or rules and regulations which
prohibits charity or generosity among court employees, what is unacceptable is her act of lending
money for a consideration and within the premises of the Court on official time.
Worse, she is the Chief of the Checks Disbursement Division that handles the preparation and
issuance ofchecks to court employees. It is beyond question that her official functions consist of,
among others, the supervision of office staff. This gives us the impression that she took
advantage of her position and abused the confidence reposed in her office, thus, placing at risk
the integrity of the division and the whole Fiscal Management and Budget Office (FMBO). As
an officer of the FMBO she can be privy of the benefits which may be given. From there,
employees can borrow and/or advance money from her and where she may easily accede
knowing that after all there will be benefits forthcoming.
Thus, this Office concludes thather actuation although not related to her official functions as
division chief, has undeniably fell short of the high standards of propriety expected ofemployees
of the Judiciary. It is considered as conduct unbecoming of an official of the Judiciary. It may be
true that she may have temporarily helped specific individuals and have a noble intention to help
employees by lending them with money, but in one way or the other, she may also have taken
advantage of the employees’ financial conditions because of the anticipated profit to be
generated from the loans. As a result, Court employees incurred uncontrolled debts all year
round where she benefits primarily because of the so called "voluntary" interest given.
Moreover, she has demeaned the image of the office which she represents, by the fact that she
utilized her office in the conduct of her lending business. Courts are considered temples of
justice and should never be utilized for any other purpose. Her claim that she conducts her
business during lunch breaks and/or after office hours is of no moment. The fact remains that it is
done within the premises of the Court and presumably inside their office where official resources
are utilized. This alone is highly reprehensible. By allowing anybody to enter their office solely
for the purpose of borrowing money, she has compromised the safety of the Checks
Disbursement Division. The Code of Conduct for Court Employees specifically Canon I, Section
5 provides that "Court personnel shall use the resources, property and funds under their official
custody in judicious manner and solely in accordance with the prescribed statutory and
regulatory guidelines or procedures."
Considering that Ms. Lopez is engaged in lending business, her integrity as a public servant and
the reputation of her office and of this Court have been seriously tarnished. While it is not wrong
for her to lend, she should have taken caution to avoid any impression that she enriched herself at
the expense of lowly paidcourt employees. As she has claimed "nagpapahiram lang po ako sa
mga maliliit na empleyado." Suffice it is to say that she has taken advantage ofthe plight of the
economically challenged employees. In view thereof, this Office recommends that the penalty of
suspension of thirty (30) daysis appropriate in this case, with a warning that a repetition of the
sameor similar act shall be dealt with more severely. While indeed, there may be mitigating
circumstances in her favor, the aggravating circumstances farther out-weight them.
Worthy to note is the observance made and reports received by this Office, that a good number
of Court employees are heavily indebted to various entities because of lack proper financial
planning. This leads them to obtain excessive debt and be financially dependent on others. It is
for this reason that the Honorable Chief Justice directed the conduct of the seminar on financial
and debt management for Court employees entitled. "Towards Financial Independent".This is
aimed, among others, to help employees manage their finances. With the presence, however of
employees such as the respondent in this case, Financial Independence will remain to be a
remote possibility.45
The Court agrees with the observations and findings of the OAS about Lopez having engaged in
money-lending activities. Her various admissions entirely belied her insistence that her activities
did not constitute money lending. Her claim that the amounts voluntarily given to her by the
recipients had not been interests on the loans extended to them was plainly insincere. The fact of
her parting with her money in favor of another upon the condition that the same amount would
be paid back was exactly what constituted a loan under the law. In a contract of loan, according
to Article 1933 of the Civil Code, "one of the parties delivers to another, either something not
consumable so that the latter may use the same for a certain time and return it, in which case the
contract is called a commodatum; or money or other consumable thing, upon the condition that
the same amount of the same kind and quality shall be paid, in which case the contract is simply
called a loan or mutuum."
Did Lopez’s money-lending activities render her administratively liable?
Administrative Circular No. 5 (Re: Prohibition for All Officials and Employees of the Judiciary
to Work as Insurance Agents), dated October 4, 1988, has prohibited all officials and employees
of the Judiciary from engaging directly in any private business, vocation or profession, even
outside their office hours. The prohibitionhas been at ensuring that full-time officers and
employees of the courts render full-time service, for only thereby could any undue delays in the
administration of justice and in the disposition of court cases be avoided.46 The nature of the
work of court employees and officials demanded their highest degree of efficiency and
responsibility, but they would not ablymeet the demand except by devoting their undivided time
to the government service.47 This explains why court employees have been enjoined to strictly
observe official time and to devote every second or moment of suchtime to serving the public.48
Although many "moonlighting" activities were themselves legal acts that would be permitted or
tolerated had the actors not been employed in the public sector,49 moonlighting, albeit not
usually treated as a serious misconduct, can amount to a malfeasance in office by the very nature
of the position held. In the case of Lopez,her being the Chief of the Checks Disbursement
Division of the FMBO, a major office of the Court itself, surely put the integrity of the Checks
Disbursement Division and the entire FMBO under so much undeserved suspicion. She ought to
have refrained from engaging in money lending, particularly to the employees of the Court. We
do not need to stress that she was expected to be circumspect about her acts and actuations,
knowing that the impression of her having taken advantage of her position and her having abused
the confidence reposed in her office and functions as such would thereby become unavoidable.
There is no doubt about her onerous lendingactivities greatly diminishing the reputation of her
office and of the Court itself in the esteem of the public.
Considering that the official and personal conduct and deportment of all the people who work for
the Judiciary mirrored the image of the Court itself,50 they should strive to comport themselves
with propriety and decorum at all times, and to be above suspicion of any misdeed and
misconduct.51 Only thereby would they earn and keep the public’s respect for and confidence in
the Judiciary. Asa public servant, therefore, Lopez knew only too well that she was expected at
all times to exhibit the highest sense of honesty and integrity. No less that the Constitution itself
impresses this expectation in Section 1 of its Article XI, to wit:
Public office is a public trust. Public officers and employees must at all times, be accountable to
the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, actwith
patriotism and justice, and lead modest lives."
Lopez was quite aware that the foregoing declarative language of the Constitution on the nature
of her public office and her responsibilities as a public officer was not mere rhetoric expressing
idealistic sentiments, but a definite working standard and a statement of attainable goals that the
actual deeds of the public officers and employees should match. She plainly disregarded the
Constitution.
Misconduct in office refers to any unlawful behavior by a public officer in relation to the duties
of his office that is willful in character. The term embraces acts that the office holder had no
right to perform, acts performed improperly, and failure to act in the face of an affirmative duty
to act.52 The Court has invariably imposed commensurate sanctions upon court employees
found and declared to be violating Administrative Circular No. 5. The sanctions have depended
on the gravity of the violations committed and on the careful consideration of the personal
records of the employees concerned, like their prior administrative cases. For instance, a
reprimand sufficed for a court stenographer who appeared as the representative of one of the
complainants in a labor case pending in the National Labor Relations Commission;53 a fine of
P1,000.00 was imposed on a court aide who operated a sari-saristore in the court premises;54 a
P5,000.00 fine was prescribed on a process server in the Office of the Clerk of Court of the
Regional Trial Court for facilitating the bail bond of an accused in a pending case in one of the
courts in the judicial station;55 suspension for one month without pay became the penalty for a
sheriff who had "moonlighted" as the administrator/trustee of a market outside of office hours in
order to augment his meager salary;56 suspension for six months without pay was the sanction
on a court stenographer who had engaged in a pyramiding scheme, and who had solicited
investments during office hours;57 suspension for one month without pay was meted on a Clerk
of Court of the Municipal Trial Court in Cities for engaging in the lending business;58 and
dismissal from the service with forfeiture of all the benefits duebecame the condign punishment
for a clerk who had worked as part-time sales agent of an appliance center, and who had
committed other offenses, specifically, the falsification of her daily time records and the
infliction of physical injuries on the complainant in a public place under scandalous
circumstances.59
Based on the foregoing, Lopez committed simple misconduct, a less grave offense that is
punishable under Rule IV, Section 52 of the Revised Uniform Rules on Administrative Cases in
the Civil Service by suspension from one month and one day to six months for the first offense,
and dismissal for the second offense. Yet,although a first-time offender, she could not be
punished with the minimum of the imposable penalty because she clearly abused her being a
high-ranking officer in the FMBO in conducting her private transactions within court premises
during office hours, thereby putting the image of the Judiciary in a bad light. Hence, her
appropriate penalty is suspension from office for three months without pay.
3.
In ordering their investigation upon the

anonymous complaint, the Court did not
discriminate and unfairly act against the respondents
Before closing, we note that the respondents made the following statements in their respective
memorandums,60 to wit:
Montalvo
The undersigned just want (sic) toexpress my thoughts to release my anger to free from harm. In
fact, there are many other anonymous complaints against employees, officials and justices even
stating far more serious accusations but which did not merit any "require comment" action from
your office.61 (Emphasis supplied)
Lopez
Otherwise, any comment on the complaint shall be meaningless especially since anonymous
complaints are a dime a dozen. In fact, there are many other anonymous complaints against
employees – officials and justices even – stating far more serious accusations but which did not
merit any "require comment" action from your office.62 (Emphasis supplied)
The respondents thereby flagrantly accused the Court, acting through the OAS, of being unfairly
selective incausing their investigation upon the anonymous complaint but ignoring the "far more
serious accusations" against "employees, officials and justices even." Their accusation has
tended to diminish the public’s faith and confidence in the Court itself.
In ordering the administrative investigation of the respondents, the Court was moved only by the
most laudable of purposes.1âwphi1 To start with, the investigation would never be unfair
because they would thereby be accorded the full opportunity to be heard in order to clear
themselves. And, secondly, they were not being singled out because the Court has always acted
upon every appropriate complaint or grievance – anonymous or not – brought against officials
and employees of the Judiciary without regard to their ranks or responsibilities, including any
ofits sitting Members, the incumbent Justices of the third-level courts, and other active judges of
the first and second levels of the courts. Only lastweek did the Court remove a very senior
Justice of the Sandiganbayan for cause, and in his case there was not even any formal complaint
brought against him.63 Verily, everyone who works in the Judiciary answers to the exacting
standards of conduct in order to maintain the integrity of the Judiciary and to preserve the esteem
of the public for the courts, for the very image of the Judiciary is inescapably epitomized in the
official conduct and the non-official demeanor of judicial officers and court personnel. To accuse
the Court of unfairness and discrimination was, therefore, censurable.
Nonetheless, the Court accords to Montalvo and Lopez the reasonable opportunity to show cause
why they should not be disciplined or otherwise sanctioned for their censurable statements.
1. FINDS and PRONOUNCES respondent DOLORES TAN LOPEZ, SC Chief Judicial

Staff Officer of the Checks Disbursement Division, Fiscal Management and Budget
Office, GUILTY of violating Administrative Circular No. 5 dated October 4, 1988, and
hereby SUSPENDS her from office for a period of three (3) months without pay, with a
STERN WARNING that a repetition of the same or similar acts will be dealt with more
severely;
2. DISMISSES the anonymous complaint against FERNANDO M. MONTALVO, SC

Supervising Judicial Staff Officer, Checks Disbursement Division, Fiscal Management
and Budget Office, for lack of evidence; and,
3. ORDERS respondents FERNANDO M. MONTALVO and DOLORES TAN LOPEZ

to show cause in writing and under oath within ten (10) days from notice why they should
not be disciplined or otherwise sanctioned for their censurable statements against the
Court and its Members in directing their investigation upon an anonymous complaint but
ignoring the "far more serious accusations" against other "employees, officials and
justices even."
Let this decision be noted in the personal records of the respondents.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
(On Official Leave)

Chief Justice
ANTONIO T. CARPIO**
Associate Justice
Associate Justice
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

(On Official Leave)

JOSE PORTUGAL PEREZ***
Associate Justice
Associate Justice

(On Official Leave)

ESTELA PERLAS-BERNABE****
Associate Justice
Associate Justice
Associate Justice
Footnotes
** Acting Chief Justice per Special Order No. 1803 dated September 24, 2014.
**** On official leave.
1 Rollo, p. 54.
2 Id.
3 Id. at 52-53.
4 Id. at 48.
5 Id.
6 Id.
7 Id. at 49.
8 Id.
9 Id. at 2.
10 Id. at 23.
11 Id. at 24.
12 Id. at 33.
13 Id. at 28.
14 Id.
15 Id. at 25.
16 Id. at 26.
17 Id. at 30..
18 Id. at 12.
19 Id. at 19.
20 Id. at 69.
21 Id. at 68.
22 Id.
23 Id. at 66-67.
24 Id. at 58-59.
25 Id. at 75-76.
26 Id. at 1-8.
27 Id. at 8.
28 Id.
29 Re: Anonymous Complaint Against Angelina Casareno-Rillorta, Officer-in-Charge,
Office of the Clerk of Court (OCC), A.M. No. P-05-2063, October 27, 2006, 505 SCRA
537, 543; Anonymous Complaint Against Pershing T. Yared, Sheriff III, Municipal Trial
Court in Cities, Canlaon City, A.M. No. P-05-2015, June 28, 2005, 461 SCRA 347, 354-
355.
30 Anonymous Complaint Against Gibson A. Araula, A.M. No. 1571-CFI, February 7,

1978, 81 SCRA 383, 384.
31 RTC Makati Movement Against Graft and Corruption v. Dumlao, A.M. No. P-93-800,
August 9, 1995, 247 SCRA 108, 126.
32 TSN, December 8, 2010, p. 26.
33 Rollo, 25.
34 Id. at 34.
35 Id. at 24-25.
36 Id. at 25, 32.
37 Id. at 27.
38 Id. at 28.
39 Id.
40 Id. at 30.
41 Id.
42 Id. at 33.
43 Id. at 35.
44 Id. at 44.
45 Id. at 6-7.
46 Benavidez v. Vega, A.M. No. P-01-1530, December 13, 2001, 372 SCRA 208, 212.
47 Biyaheros Mart Livelihood Association, Inc. v. Cabusao, Jr., Adm. Matter No. P-93-
811, June 2, 1994, 232 SCRA 707, 712.
48 Anonymous v. Grande, AM No. P-06-2114, December 5,2006, 509 SCRA 495, 501.
49 Baron v. Anacan, A.M. No. P-04-1816, June 20, 2006, 491 SCRA 313, 321.
50 Lozada v. Zerrudo, A.M. No. P-13-3108, April 10, 2013, 695 SCRA 374, 379.
51 Paguyo v. Gatbunton, A.M. No. P-06-2135, May 25, 2007, 523 SCRA 156, 166.
52 Pascual v. Martin, A.M. No. P-08-2552[Formerly OCA I.P.I. No. 06-2370-P], October
8, 2008, 568 SCRA 96, 106.
53 Abeto v. Garcesa, Adm. Matter No. P-88-269, December 29, 1995, 251 SCRA 539.
54 Quiroz v. Orfila, A.M. No. P-96-1210, May 7, 1997, 272 SCRA 324.
55 Concerned Citizen v. Bautista, Adm. Matter No. P-04-1876, August 31, 2004, 437
SCRA 234.
56 Benavidez v. Vega, supra note 46.
57 Gasulas v. Maralit, A.M. No. P-90-416, August 25, 1994, 235 SCRA 585.
58 Go v. Remotigue, A.M. No. P-05-1969, June 12, 2008, 554 SCRA 242.
59 Id. at 251-252.
60 Supra notes 4 and 7.
61 Supra note 7.
62 Supra note 4.
63 Re: Allegations Made Under Oath At The Senate Blue Ribbon Committee Hearing
Held On September 25, 20 I 3 Against Associate Justice Gregory S Ong, Sandiganbayan,
A.M. No. SB-14-21-J, September 23, 2014.
SUPREME COURT
Manila
EN BANC
G.R. No. 191672 November 25, 2014
DENNIS A. B. FUNA, Petitioner,

vs.
THE CHAIRMAN, CIVIL SERVICE COMMISSION, FRANCISCO T. DUQUE III,
EXECUTIVE SECRETARY LEANDRO R. MENDOZA, OFFICE OF THE PRESIDENT,
Respondents.
DECISION
BERSAMIN, J.:
The independence of the Civil Service Commission (CSC) is explicitly mandated under Section
1,1 Article IX-A of the 1987 Constitution. Additionally, Section 2,2 Article IX-A of the 1987
Constitution prohibits its Members, during their tenure, from holding any other office or
employment.
These constitutional provisions3 are central to this special civil action for certiorari and
prohibition brought to assail the designation of Hon. Francisco T. Duque III, Chairman of the
CSC, as a member of the Board of Directors or Trustees in an ex officio capacity of the (a)
Government Service Insurance System (GSIS); (b) Philippine Health Insurance Corporation
(PHILHEALTH), (c) the Employees Compensation Commission (ECC), and (d) the Home
Development Mutual Fund (HDMF).
Antecedents
On January 11, 2010, then President Gloria Macapagal-Arroyo appointed Duque as Chairman of
the CSC. The Commission on Appointments confirmed Duque’s appointment on February 3,
2010.
On February 22, 2010,President Arroyo issued Executive Order No. 864 (EO 864), whose
complete text is quoted as follows:
EXECUTIVE ORDER NO. 864
INCLUSION OF THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION IN THE

BOARD OF TRUSTEES/DIRECTORS OF THE GOVERNMENT SERVICE INSURANCE
SYSTEM, PHILIPPINE HEALTH INSURANCE CORPORATION, EMPLOYEES’
COMPENSATION COMMISSION AND THE HOME DEVELOPMENT MUTUAL FUND
WHEREAS, Section 2 (1), Article IX-B of the 1987 Philippine Constitution provides that the
civil service embraces all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations with original charters;
WHEREAS, Section 3, Article IX-B of the 1987 Constitution mandates, among others, that the
Civil Service Commission (CSC), as the central personnel agency of the government, shall
establish a career service and adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil service, and shall strengthen the merit
and rewards system, integrate all human resources development programs for all levels and
ranks, and institutionalize a management climate conducive to public accountability;
WHEREAS, Section 14, Chapter 3, Title I-A, Book V of the Administrative Code of 1987
(Executive Order No. 292) expressly states that the Chairman of the CSC shall bea member of
the Board of Directors or of other governing bodies of government entities whose functions
affect the career development, employment, status, rights, privileges, and welfare of government
officials and employees, such as the Government Service Insurance System, Foreign Service
Board, Foreign Trade Service Board, National Board for Teachers, and such other similar boards
as may be created by law;
WHEREAS, Presidential Decree No. 1 dated September 24, 1972, explicitly empowers the
President of the Republic of the Philippines to reorganize the entire Executive Branch of the
National Government, as a vital and priority measure to effect the desired changes and reforms in
the social, economic and political structure of the country;
WHEREAS, Section 18 (a), ArticleIV of Republic Act No. 7875 (An Act Instituting a National
Health Insurance Program For All Filipinos and Establishing the Philippine Health Insurance
Corporation For The Purpose) or otherwise known as the "National Health Insurance Act of
1995", Section 42 (G) of Republic Act No. 8291 (An Act Amending Presidential Decree No.
1146, as amended, Expanding and Increasing the Coverage of Benefits of the Government
Service Insurance System, Instituting Reforms Therein and For Other Purposes) or otherwise
known as "The Government Service Insurance System Act of 1997, Article 176, Chapter 3 of
Presidential Decree No. 626 (Employees’ Compensation and State Insurance Fund), and
Presidential Decree No. 1530 (Instituting a System of Voluntary Contributions for Housing
Purpose[s]) or otherwise known as the "Pag-ibig Fund" reveal that while the Chairman of the
CSC is not included in the list of those who could sit as a member of the Board of Directors of
the Philhealth or of the Board of Trustees of the GSIS, ECC and the Pag-ibig Fund, said laws did
not expressly repeal Section 14, Chapter 3, Title I-A, Book V of the Administrative Code of
1987 and Presidential Decree No. 1; WHEREAS, it is settled that repeals by implication are not
favored as laws are presumed to be passed with deliberation and full knowledge of all laws
existing on the subject;
WHEREAS, a scrutiny of the mandated functions and duties of the Board of Trustees of the
GSIS, ECC and HDMF and the Board of Directors of the PhilHealth shows that the same are all
geared towards the advancement of the welfare of government officials and employees, which
functions fall within the province of the CSC;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order and direct:
Section 1. The Chairman of the Civil Service Commission shall sit as an Ex-Officio member of
the Board of Trustees of the Government Service Insurance System, Employees’ Compensation
Commission and the Home Development Mutual Fund and the Board of Directors of the
Philippine Health Insurance Corporation pursuant to Section 14, Chapter 3, Title I-A, Book V of
Executive Order No. 292 (Administrative Code of 1987).
Section 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 22nd day of February, in the year of Our Lord, Two Thousand
and Ten.4
Pursuant to EO 864, Duque was designated as a member of the Board of Directors or Trustees of
the following government-owned or government- controlled corporations (GOCCs): (a) GSIS;
(b) PHILHEALTH;(c) ECC; and (d) HDMF.
On April 8, 2010, petitioner Dennis A.B. Funa, in his capacity as taxpayer, concerned citizen and
lawyer, filed the instant petition challenging the constitutionality of EO 864, as well as Section
14, Chapter 3, Title I-A, Book V of Executive Order No. 292 (EO 292), otherwise known as The
Administrative Code of 1987, and the designation of Duque as a member of the Board of
Directors or Trustees of the GSIS, PHIC, ECC and HDMF for being clear violations of Section 1
and Section 2, Article IX-A of the 1987 Constitution.
The Case
The Court is confronted with the proper interpretation of Section 1 and Section 2, Article IX-A
of the 1987 Constitution and Section 14, Chapter 3, Title I-A, Book V of EO 292 to ascertain the
constitutionality of the designation of Duque, in an ex officio capacity, as Director or Trustee of
the GSIS, PHIC, ECC and HDMF.
Petitioner asserts that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO 292 violate
the independence of the CSC, which was constitutionally created to be protected from outside
influences and political pressures due to the significance of its government functions.5 He further
asserts that such independence is violated by the fact that the CSC is not a part of the Executive
Branch of Government while the concerned GOCCs are considered instrumentalities of the
Executive Branch of the Government.6 In this situation, the President may exercise his power of
control over the CSC considering that the GOCCs in which Duque sits as Board member are
attached to the Executive Department.7
Petitioner argues that Section 14, Chapter 3, Title I-A, Book V of EO 292 unduly and
unconstitutionally expands the role of the CSC, which is primarily centered on personnel-related
concerns involving government workers, to include insurance, housing and health matters of
employees in the government service.8 He observes that the independence of the CSC will not be
compromised if these matters are instead addressed by entering into a memorandum of
agreement or by issuing joint circulars with the concerned agencies, rather than allowing a
member of the CSC to sit as a member of the governing Boards of these agencies.9
Petitioner notes that the charters of the GSIS, PHILHEALTH, ECC and HDMF do not mention
that the CSC Chairman sits as a member of their governing Boards in an ex officiocapacity.10
Such being the case, the President may not amend the charters, which are enacted by Congress,
by the mere issuance of an executive order.11
Petitioner posits that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO 292 violate the
prohibition imposed upon members of constitutional commissions from holding any other office
or employment.12 A conflict of interest may arise in the event that a Board decision of the GSIS,
PHILHEALTH, ECC and HDMF concerning personnel-related matters is elevated to the CSC
considering that such GOCCs have original charters, and their employees are governed by CSC
laws, rules and regulations.13
In their Comment, respondents maintain that Duque’s membership in the governing Boards of
the GSIS, PHILHEALTH, ECC and HDMF is constitutional. They explain that EO 864 and
Section 14, Chapter 3, Title IA, Book V of EO 292 preserve the independence of the CSC
considering that GOCCs with original charters such as the GSIS, PHILHEALTH, ECC and
HDMF are excluded from the supervision and control that secretaries and heads exercise over the
departments to which these GOCCs are attached.14 Ultimately, these GOCCs are exempted from
the executive control of the President.15
As to the matter of conflict of interest, respondents point out that Duque is just one member of
the CSC, or of the Boards of the GSIS, PHILHEALTH, ECC and HDMF, such that matters
resolved by these bodies may be resolved with or without Duque’s participation.16 Respondents
submit that the prohibition against holding any other office or employment under Section 2,
Article IX-A of the 1987 Constitution does not cover positions held without additional
compensation in ex officio capacities. Relying on the pronouncement in Civil Liberties Union v.
Executive Secretary,17 they assert that since the 1987 Constitution, which provides a stricter
prohibition against the holding of multiple offices by executive officials, allows them to hold
positions in ex officio capacities, the same rule is applicable to members of the Constitutional
Commissions.18 Moreover, the mandatory tenor of Section 14, Chapter 3, Title I-A, Book V of
EO 292 clearly indicates that the CSC Chairman’s membership in the governing bodies
mentioned therein merely imposes additional duties and functions as an incident and necessary
consequence of his appointment as CSC Chairman.19
Respondents insist that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO 292, as well
as the charters of the GSIS, PHILHEALTH, ECC and HDMF, are consistent with each other.
While the charters of these GOCCs do not provide that CSC Chairman shall be a member of
their respective governing Boards, there islikewise no prohibition mentioned under said
charters.20 EO 864, issued in conformity with Section 14, Chapter 3, Title I-A, Book V of EO
292, could not have impliedly amended the charters of the GSIS, PHILHEALTH, ECC and
HDMF because the former relates to the law on the CSC while the latter involve the creation and
incorporation of the respective GOCCs.21 As their subject matters differ from each other, the
enactment of the subsequent law is not deemed to repeal or amend the charters of the GOCCs,
being considered prior laws.22
Issue
Does the designation of Duque as member of the Board of Directors or Trustees of the GSIS,
PHILHEALTH, ECC and HDMF, in an ex officio capacity, impair the independence of the CSC
and violate the constitutional prohibition against the holding of dual or multiple offices for the
Members of the Constitutional Commissions?
Our Ruling
The Court partially grants the petition. The Court upholds the constitutionality of Section 14,
Chapter 3, Title I-A, Book V of EO 292, but declares unconstitutional EO 864 and the
designation of Duque in an ex officio capacity as a member of the Board of Directors or Trustees
of the GSIS, PHILHEALTH, ECC and HDMF.
1.
Requisites of judicial review
Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have the standing to question the validity
of the subject act or issuance; otherwise stated, he must have a personal and substantial interest
in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis motaof the case.23
Here, the Office of the Solicitor General (OSG) only disputes the locus standi of petitioner who
has filed this suit in his capacity as taxpayer, concerned citizen and lawyer.24 In view of the
earlier dispositions by the Court in similar public law cases initiated by petitioner, we again
affirm his locus standito bring a suit of this nature. In Funa v. Agra,25 the Court has recently
held:
x x x [T]he locus standi of the petitioner as a taxpayer, a concerned citizen and a lawyer to bring
a suit ofthis nature has already been settled in his favor in rulings by the Court on several other
public law litigations he brought. In Funa v. Villar, for one, the Court has held:
To have legal standing, therefore, a suitor must show that he has sustained or will sustain a
"direct injury" as a result of a government action, or have a "material interest" in the issue
affected by the challenged official act. However, the Court has time and again acted liberally on
the locus standi requirements and has accorded certain individuals, not otherwise directly
injured, or with material interest affected, by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake. The rule on locus standi is after all a mere
procedural technicality in relation to which the Court, in a catena of cases involving a subject of
transcendental import, has waived, or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may
not have been personally injured by the operation of a law or any other government act. In
David, the Court laid out the bare minimum norm before the so-called "non-traditional suitors"
may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the
tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the election
law in question;
3.) For concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of infringes
their prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has "far-reaching

implications," and there is a need to promulgate rules that will guide the bench, bar, and the
public in future analogous cases. We, thus, assume a liberal stance and allow petitioner to
institute the instant petition.20 (Bold emphasis supplied)
In Funa v. Ermita, the Court recognized the locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer because the issue raised therein involved a subject of
transcendental importance whose resolution was necessary to promulgate rules to guide the
Bench, Bar, and the public in similar cases.
The Court notes, however, that during the pendency of this petition, Duque’s designation as
Director or Trustee of the GSIS, PHILHEALTH, ECC and PHIC could have terminated or been
rendered invalid by the enactment of Republic Act No. 10149,26 thus causing this petition and
the main issue tendered herein moot and academic. Pertinent provisions of Republic Act
No.10149, which took effect on June 6, 2011, state:
SEC. 13. Number of Directors/Trustees.—The present number of Directors/Trustees provided in

the charter of the GOCCs shall be maintained.
SEC. 14. Ex Officio Alternates.—The ex officio members of the GOCC may designate their
respective alternates who shall be the officials next-in-rank to them and whose acts shall be
considered the acts of their principals.
SEC. 15. Appointment of the Board of Directors/Trustees of GOCCs.—An Appointive Director

shall be appointed by the President of the Philippines from a shortlist prepared by the GCG.
The GCG shall formulate its rules and criteria in the selection and nomination of prospective
appointees and shall cause the creation of search committees to achieve the same. All nominees
included in the list submitted by the GCG to the President shall meet the Fit and Proper Rule as
defined un this Act and such other qualifications which the GCG may determine taking into
consideration the unique requirements of each GOCC. The GCG shall ensure that the shortlist
shall exceed by at least fifty percent (50%) of the number of directors /trustees tobe appointed. In
the event that the President does not see fit to appoint any of the nominees included in the
shortlist, the President shall ask the GCG to submit additional nominees.
xxxx
SEC. 17. Term of Office.—Any provision in the charters of each GOCC to the contrary
notwithstanding, the term of office of each Appointive Director shall be for one(1) year, unless
sooner removed for cause: Provided, however,That the Appointive Director shall continue to
hold office until the successor is appointed. An Appointive Director may be nominated by the
GCG for reappointment by the President only if one obtains a performance score of above
average or its equivalent or higher in the immediately preceding year of tenure as Appointive
Director based on the performance criteria for Appointive Directors for the GOCC.
Appointed to any vacancy shall be only for the unexpired term of the predecessor. The
appointment of a director to fill such vacancy shall be in accordance with the manner provided in
Section 15 of this Act.
Any provision of law to the contrary notwithstanding, all incumbent CEOs and appointive
members of the Board of GOCCs shall, upon approval of this Act, have a term of office until
June 30, 2011, unless sooner replaced by the President: Provided, however, That the incumbent
CEOs and appointive members of the Board shall continue in office until the successor have
been appointed by the President.
A moot and academic case is one thatceases to present a justiciable controversy by virtue of
2.
Unconstitutionality of Duque’sdesignation as member
of the governing boards of the GSIS, PHIC, ECC and HDMF
Nonetheless, this Court has exercised its power of judicial review in cases otherwise rendered
moot and academic by supervening events on the basis of certain recognized exceptions, namely:
(1) there is a grave violation of the Constitution; (2) the case involves a situation of exceptional
character and is of paramount public interest; (3) the constitutional issue raised requires the
formulation of controlling principles to guide the Bench, the Bar and the public; and (4) the case
is capable of repetition yet evading review.28
The situation now obtaining definitely falls under the requirements for the review of a moot and
academic case. For the guidance of and as a restraint upon the future,29 the Court will not
abstain from exercising its power of judicial review, the cessation of the controversy
notwithstanding. We proceed to resolve the substantive issue concerning the constitutionality of
Duque’s ex officio designation as member of the Board of Directors or Trustees of the GSIS,
PHILHEALTH, ECC and HDMF.
The underlying principle for the resolution of the present controversy rests on the correct
application of Section 1 and Section 2, Article IX-A of the 1987 Constitution, which provide:
Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on Audit.
Section 2. No Member of a Constitutional Commission shall, during his tenure, hold any other
office or employment. Neither shall he engage in the practice of any profession or in the active
management or control of any business which in any way may be affected by the functions of his
office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations or their subsidiaries.
Section 1, Article IX-A of the 1987 Constitution expressly describes all the Constitutional
Commissions as "independent."Although their respective functions are essentially executive in
nature, they are not under the control of the President of the Philippines in the discharge of such
functions. Each of the Constitutional Commissions conducts its own proceedings under the
applicable laws and its own rules and in the exercise of its own discretion. Its decisions, orders
and rulings are subject only to review on certiorariby the Court as provided by Section 7, Article
IX-A of the 1987 Constitution.30 To safeguard the independence of these Commissions, the
1987 Constitution, among others,31 imposes under Section 2, Article IX-A of the Constitution
certain inhibitions and disqualifications upon the Chairmen and members to strengthen their
integrity, to wit:
(a) Holding any other office or employment during their tenure;
(b) Engaging in the practice of any profession;
(c) Engaging in the active management or control of any business which in any way may
be affected by the functions of his office; and
(d) Being financially interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its subdivisions, agencies or
instrumentalities, including government-owned or – controlled corporations or their
subsidiaries.32
The issue herein involves the first disqualification abovementioned, which is the disqualification
from holding any other office or employment during Duque’s tenure as Chairman of the CSC.
The Court finds it imperative to interpret this disqualification in relation to Section 7, paragraph
(2), Article IX-B of the Constitution and the Court’s pronouncement in Civil Liberties Union v.
Executive Secretary.
Section 7, paragraph (2),Article IX-B reads:

Section 7. x x x
Unless otherwise allowed by law or the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof,including government-owned or controlled corporations or their
subsidiaries.
In Funa v. Ermita,33 where petitioner challenged the concurrent appointment of Elena H.

Bautista as Undersecretary of the Department of Transportation and Communication and as
Officer-in-Charge of the Maritime Industry Authority, the Court reiterated the pronouncement in
Civil Liberties Union v.The Executive Secretary on the intent of the Framers on the foregoing
provision of the 1987 Constitution, to wit:
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law orby the primary
functions of their positions, members of the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is
meant to lay down the general rule applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the exception applicable only to the
President, the Vice-President, Members of the Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during their
tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to bea
positive and unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation. The phrase "unless otherwise
provided in this Constitution" must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as
a member of the Cabinet under Section 3, par. (2),Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice
being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article
VIII.34
Being an appointive public official who does not occupy a Cabinet position (i.e., President, the
Vice-President, Members of the Cabinet, their deputies and assistants), Duque was thus covered
by the general rule enunciated under Section 7, paragraph (2), Article IX-B. He can hold any
other office or employment in the Government during his tenure if such holding is allowed by
law or by the primary functions of his position.
Respondents insist that Duque’s ex officio designation as member of the governing Boards of the
GSIS, PHILHEALTH, ECC and HDMF is allowed by the primary functions of his position as
the CSC Chairman. To support this claim, they cite Section 14, Chapter 3, Title I-A, Book V of
EO 292, to wit:
Section 14. Membership of the Chairman in Boards.—The Chairman shall be a member of the
Board of Directors or of other governing bodies of government entities whose functions affect
the career development, employment status, rights, privileges, and welfare of government
officials and employees, such as the Government Service Insurance System, Foreign Service
Board, Foreign Trade Service Board, National Board for Teachers, and such other similar boards
as may be created by law.
As to the meaning of ex officio, the Court has decreed in Civil Liberties Union v. Executive
Secretary that –
x x x x The term ex officiomeans "from office; by virtue of office." It refers to an "authority

derived from official character merely, not expressly conferred upon the individual character, but
rather annexed to the official position." Ex officio likewise denotes an "act done in an official
character, or as a consequence of office, and without any other appointment or authority other
than that conferred by the office." An ex officio member of a board is one who is a member by
virtue of his title to a certain office, and without further warrant or appointment. x x x
xxxx
The ex officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and covered by
the compensation attached to his principal office. x x x35
Section 3, Article IX-B of the 1987 Constitution describes the CSC as the central personnel
agency of the government and is principally mandated to establish a career service and adopt
measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy
in the civil service; to strengthen the merit and rewards system; to integrate all human resources
development programs for all levels and ranks; and to institutionalize a management climate
conducive to public accountability. Its specific powers and functions are as follows:
(1) Administer and enforce the constitutional and statutory provisions on the merit system
for all levels and ranks in the Civil Service;
(2) Prescribe, amend and enforce rules and regulations for carrying into effect the
provisions of the Civil Service Law and other pertinent laws;
(3) Promulgate policies, standards and guidelines for the Civil Service and adopt plans
and programs to promote economical, efficient and effective personnel administration in
the government;
(4) Formulate policies and regulations for the administration, maintenance and
implementation of position classification and compensation and set standards for the
establishment, allocation and reallocation of pay scales, classes and positions;
(5) Render opinion and rulings on all personnel and other Civil Service matters which
shall be binding on all heads of departments, offices and agencies and which may be
brought to the Supreme Court on certiorari;
(6) Appoint and discipline its officials and employees in accordance with law and
exercise control and supervision over the activities of the Commission;
(7) Control, supervise and coordinate Civil Service examinations. Any entity or official in
government may be called upon by the Commission to assist in the preparation and
conduct of said examinations including security, use of buildings and facilities as well as
personnel and
transportation of examination materials which shall be exempt from inspection

regulations;
(8) Prescribe all forms for Civil Service examinations, appointments, reports and such
other forms as may be required by law, rules and regulations;
(9) Declare positions in the Civil Service as may properly be primarily confidential,
highly technical or policy determining;
(10) Formulate, administer and evaluate programs relative to the development and
retention of qualified and competent work force in the public service;
(11) Hear and decide administrative cases instituted by or brought before it directly or on
appeal, including contested appointments, and review decisions and actions of its offices
and of the agencies attached to it. Officials and employees who fail to comply with such
decisions, orders, or rulings shall be liable for contempt of the Commission. Its decisions,
orders, or rulings shall be final and executory. Such decisions, orders, or rulings may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty (30)
daysfrom receipt of a copy thereof;
(12) Issue subpoena and subpoena duces tecum for the production of documents and
records pertinent to investigation and inquiries conducted by it in accordance withits
authority conferred by the Constitution and pertinent laws;
(13) Advise the President on all matters involving personnel management in the
government service and submit to the President an annual report on the personnel
programs;
(14) Take appropriate action on all appointments and other personnel matters in the Civil
Service including extension of Service beyond retirement age;
(15) Inspect and audit the personnel actions and programs of the departments, agencies,
bureaus, offices, local government units and other instrumentalities of the government
including government-owned or controlled corporations; conduct periodic review of the
decisions and actions of offices or officials to whom authority has been delegated by the
Commission as well as the conduct of the officials and the employees in these offices and
apply appropriate sanctions when necessary;
(16) Delegate authority for the performance of any functions to departments, agencies
and offices where such functions may be effectively performed;
(17) Administer the retirement program for government officials and employees, and
accredit government services and evaluate qualifications for retirement;
(18) Keep and maintain personnel records of all officials and employees in the Civil
Service; and
(19) Perform all functions properly belonging to a central personnel agency and such
other functions as may be provided by law.36
On the other hand, enumerated below are the specific duties and responsibilities of the CSC
Chairman, namely:
(1) Direct all operations of the Commission;
(2) Establish procedures for the effective operations of the Commission;
(3) Transmit to the President rules and regulations, and other guidelines adopted by the
Chairman which require Presidential attention including annual and other periodic
reports;
(4) Issue appointments to, and enforce decisions on administrative discipline involving
officials and employees of the Commission;
(5) Delegate authority for the performance of any function to officials and employees of
the Commission;
(6) Approve and submit the annual and supplemental budget of the Commission; and
(7) Perform such other functionsas may be provided by law.37
Section 14, Chapter 3, Title I-A, Book V of EO 292 is clear that the CSC Chairman’s
membership in a governing body is dependent on the condition that the functions of the
government entity where he will sit as its Board member must affect the career development,
employment status, rights, privileges, and welfare of government officials and employees. Based
on this, the Court finds no irregularity in Section 14, Chapter 3, Title I-A, Book V of EO 292
because matters affecting the career development, rights and welfare of government employees
are among the primary functions of the CSC and are consequently exercised through its
Chairman. The CSC Chairman’s membership therein must, therefore, be considered to be
derived from his position as such. Accordingly, the constitutionality of Section 14, Chapter 3,
Title I-A, Book V of EO 292 is upheld.
However, there is a need to determine further whether Duque’s designation as Board member of
the GSIS, PHILHEALTH, ECC and HDMF is in accordance with the 1987 Constitution and the
condition laid down in Section 14, Chapter 3, Title I-A, Book V of EO 292. It is necessary for
this purpose to examine the functions of these government entities under their respective
charters, to wit:
The GSIS Charter, Republic Act No. 8291
SECTION 41. Powers and Functions of the GSIS. — The GSIS shall exercise the following
powers and functions:
(a) to formulate, adopt, amend and/or rescind such rules and regulations as may be
necessary to carry out the provisions and purposes of this Act, as well as the effective
exercise of the powers and functions, and the discharge of duties and responsibilities of
the GSIS, its officers and employees;
(b) to adopt or approve the annual and supplemental budget of receipts and expenditures
including salaries and allowances of the GSIS personnel; to authorize such capital and
operating expenditures and disbursements of the GSIS as may be necessary and proper
for the effective management and operation of the GSIS;
(c) to invest the funds of the GSIS, directly or indirectly, in accordance with the
provisions of this Act;
(d) to acquire, utilize or dispose of, in any manner recognized by law, real or personal
property in the Philippines or elsewhere necessary to carry out the purposes of this Act;
(e) to conduct continuing actuarialand statistical studies and valuations to determine the
financial condition of the GSIS and taking into consideration such studies and valuations
and the limitations herein provided, re-adjust the benefits, contributions, premium rates,
interest rates or the allocation or re-allocation of the funds to the contingencies covered;
(f) to have the power of succession;
(g) to sue and be sued;
(h) to enter into, make, perform and carry out contracts of every kind and description
with any person, firm or association or corporation, domestic or foreign;
(i) to carry on any other lawful business whatsoever in pursuance of, or in connection
with the provisions of this Act;
(j) to have one or more offices in and outside of the Philippines, and to conduct its
business and exercise its powers throughout and in any part of the Republic of the
Philippines and/or in any or all foreign countries, states and territories: Provided, That the
GSIS shall maintain a branch office in every province where there exists a minimum of
fifteen thousand (15,000) membership; (k) to borrow funds from any source, private or
government, foreign or domestic, only as an incident in the securitization of housing
mortgages of the GSIS and on account of its receivables from any government or private
entity;
(l) to invest, own or otherwise participate in equity in any establishment, firm or entity;
(m) to approve appointments in the GSIS except appointments to positions which are
policy determining, primarily confidential or highly technical in nature according to the
Civil Service rules and regulations: Provided, That all positions in the GSIS shall be
governed by a compensation and position classification system and qualifications
standards approved bythe GSIS Board of Trustees based on a comprehensive job analysis
and audit of actual duties and responsibilities: Provided, further, That the compensation
plan shall be comparable with the prevailing compensation plans in the private sector and
shall be subject to the periodic review by the Board no more than once every four (4)
years without prejudice to yearly merit reviews or increases based on productivity and
profitability;
(n) to design and adopt an Early Retirement Incentive Plan (ERIP) and/or financial
assistance for the purpose of retirement for its own personnel;
(o) to fix and periodically review and adjust the rates of interest and other terms and
conditions for loans and credits extended to members or other persons, whether natural or
juridical;
(p) to enter into agreement with the Social Security System or any other entity, enterprise,
corporation or partnership for the benefit of members transferring from one system to
another subject to the provision of Republic Act No. 7699, otherwise known as the
Portability Law;
(q) to be able to float proper instrument to liquefy long-term maturity by pooling funds
for short-term secondary market;
(r) to submit annually, not later thanJune 30, a publicreport to the President of the
Philippines and the Congress of the Philippines regarding its activities in the
administration and enforcement of this Act during the preceding year including
information and recommendations on broad policies for the development and perfection
of the programs of the GSIS;
(s) to maintain a provident fund, which consists of contributions made by both the GSIS
and its officials and employees and their earnings, for the payment of benefits to such
officials and employees or their heirs under such terms and conditions as it may
prescribe;
(t) to approve and adopt guidelines affecting investments, insurance coverage of

government properties, settlement of claims, disposition of acquired assets, privatization
or expansion of subsidiaries, development of housing projects, increased benefit and loan
packages to members, and the enforcement of the provisions of this Act;
(u) any provision of law to the contrary notwithstanding, to authorize the payment of
extra remuneration to the officials and employees directly involved in the collection
and/or remittance of contributions, loan repayments, and other monies due to the GSIS at
such rates and under such conditions as itmay adopt. Provided, That the best interest of
the GSIS shall be observed thereby;
(v) to determine, fix and impose interest upon unpaid premiums due from employers and
employees;
(w) to ensure the collection or recovery of all indebtedness, liabilities and/or

accountabilities, includingunpaid premiums or contributions in favor of the GSISarising
from any cause or source whatsoever, due from all obligors, whether public or private.
The Board shall demand payment or settlement of the obligations referred to herein
within thirty (30) days from the date the obligation becomes due, and in the event of
failure or refusal of the obligor or debtor to comply with the demand, to initiate or
institute the necessary or proper actions or suits, criminal, civil or administrative or
otherwise, before the courts, tribunals, commissions, boards, or bodies of proper
jurisdiction within thirty (30) days reckoned from the expiry dateof the period fixed in the
demand within which to pay or settle the account;
(x) to design and implement programs that will promote and mobilize savings and
provide additional resources for social security expansion and at the same time afford
individual members appropriate returns on their savings/investments. The programs shall
be so designed as to spur socio-economic take-off and maintain continued growth; and
(y) to exercise such powers and perform such other acts as may be necessary, useful,
incidental or auxiliary to carry out the provisions of this Act, or to attain the purposesand
objectives of this Act.
The PHILHEALTH Charter, Republic Act No. 7875
SEC. 16. Powers and Functions – The Corporation shall have the following powers and
functions:
(a) to administer the National Health Insurance Program;
(b) to formulate and promulgate policies for the sound administration of the Program;
(c) to set standards, rules, and regulations necessary to ensure quality of care, appropriate
utilization of services, fund viability, member satisfaction, and overall accomplishment of
Program objectives;
(d) to formulate and implement guidelines on contributions and benefits; portability of

benefits, cost containment and quality assurance; and health care provider
arrangements,payment, methods, and referral systems;
(e) to establish branch offices as mandated in Article V of this Act;
(f) to receive and manage grants, donations, and other forms of assistance;
(g) to sue and be sued in court;
(h) to acquire property, real and personal, which may be necessary or expedient for the
attainment of the purposes of this Act;
(i) to collect, deposit, invest, administer, and disburse the National Health Insurance Fund
in accordance with the provisions of this Act;
(j) to negotiate and enter into contracts with health care institutions, professionals, and
other persons, juridical or natural, regarding the pricing, payment mechanisms, design
and implementation of administrative and operating systems and procedures, financing,
and delivery of health services;
(k) to authorize Local Health Insurance Offices to negotiate and enter into contracts in the
name and on behalf of the Corporation with any accredited government or private sector
health provider organization, including but not limited to health maintenance
organizations, cooperatives and medical foundations, for the provision ofat least the
minimum package of personal health services prescribed by the Corporation;
(l) to determine requirements and issue guidelines for the accreditation of health care
providers for the Program in accordance with this Act;
(m) to supervise the provision of health benefits with the power to inspect medical and
financial records of health careproviders and patients who are participants in or members
of the Program, and the power to enter and inspect accredited health care institutions,
subject to the rules and regulations to be promulgated by the Corporation;
(n) to organize its office, fix the compensation of and appoint personnel as may be
deemed necessary and upon the recommendation of the president of the Corporation;
(o) to submit to the President of the Philippines and to both Houses of Congress its
Annual Report which shall contain the status of the National Health Insurance Fund, its
total disbursements, reserves, average costing to beneficiaries, any request for additional
appropriation, and other data pertinent to the implementation of the Program and publish
a synopsis of such report in two (2) newspapers of general circulation;
(p) to keep records of the operations of the Corporation and investments of the National
Health Insurance Fund; and
(q) to perform such other acts as it may deem appropriate for the attainment of the
objectives of the Corporation and for the proper enforcement of the provisions of this Act
The HDMF Charter, Republic Act No. 9679
SEC. 13. Powers and Functions of the Fund.– The Fund shall have the powers and functions
specified in this Act and the usual corporate powers:
(a) To formulate, adopt, amend and/or rescind such rules and regulations as may be
necessary to carry out the provisions and purposes of this Act, as well as the effective
exercise of the powers and functions, and the discharge of duties and responsibilities of
the Fund, its officers and employees;
(b) To adopt or approve the annual and supplemental budget of receipts and expenditures
including salaries and allowances of the Fund personnel, to authorize such capital and
operating expenditures and disbursements of the Fund as may be necessary and proper
for the effective management and operation of the Fund;
(c) To submit annually to the President of the Philippines not later than March 15, a
report of its activities and the state of the Fund during the preceding year, including
information and recommendations for the development and improvement thereof;
(d) To invest not less than seventy percent (70%) of its investible funds to housing, in
accordance with this Act;
(e) To acquire, utilize, or dispose of, in any manner recognized by law, real or personal
properties to carry out the purposes of this Act;
(f) To set up its own accounting and computer systems; to conduct continuing actuarial
and statistical studies and valuations to determine the financial viability of the Fund and
its project; to require reports, compilations and analysis of statistical and economic data,
as well as make such other studies and surveys asmay be needed for the proper
administration and development of the Fund;
(g) To have the power of succession; to sue and be sued; to adopt and use a corporate
seal;
(h) To enter into and carry out contracts of every kind and description with any person,
firm or association or corporation, domestic or foreign;
(i) To borrow funds from any source, private or government, foreign or domestic;
(j) To invest, own or otherwise participate in equity in any establishment, or entity; to

form, organize, invest in or establish and maintain a subsidiary or subsidiaries in relation
to any of its purposes;
(k) To approve appointments in the Fund except appointments to positions which are
policy determining, primarily confidential or highly technical in nature according to the
civil service rules and regulations: Provided, That all positions in the Fund shall be
governed by a compensation and position classification system and qualification
standards approved by the Fund's Board of Trustees based on a comprehensive job
analysis, wage compensation study and audit of actual duties and responsibilities:
Provided, further, That the compensation plan shall be comparable with prevailing
compensation plans in the private sector and shall be subject to the periodic review of the
Board no more than once everyfour (4) years without prejudice to yearly merit reviews or
increases based on productivity and profitability. The Fund shall, therefore, be exempt
from any laws, rules and regulations on salaries and compensations;
(l) To maintain a provident fund, which shall consist of contributions made by both the
Fund and its officers and employees and their earnings, for the payment ofbenefits to
such officials and employees or their heirs under such terms and conditions as it may
prescribe;
(m)To design and adopt an early retirement incentive plan (ERIP) for its own personnel;
(n) To establish field offices and to conduct its business and exercise its powers in these
places; (o) To approve restructuring proposalfor the payment of due but unremitted
contributions and unpaid loan amortizations under such terms and conditions as the
Board ofTrustees may prescribe;
(p) To determine, fix and impose interest and penalties upon unpaid contributions due
from employers and employees;
(q) To ensure the collection and recovery of all indebtedness, liabilities and/or
accountabilities, including unpaid contributions in favor of the Fund arising from any
cause or source or whatsoever, due from all obligors, whether public or private; to
demand payment of the obligations referred to herein, and in the event of failure or
refusal of the obligor or debtor to comply with the demand, to initiate or institute the
necessary or proper actions or suits, criminal, civil, administrative, or otherwise, before
the courts, tribunals, commissions, boards or bodies of proper jurisdiction: Provided,
however, That the Fund may compromise or release, in whole or in part, any interest,
penalty or civil liability to the Fund in connection with the collection of contributions and
the lending operations of the Fund, under such terms and conditions as prescribed by the
Board of Trustees: Provided, further, That the Board may, upon recommendation of the
Chief Executive Officer, deputize any member of the Fund's legal staff to act as special
sheriff in foreclosure cases, in the sale or attachment of the debtor's properties, and in the
enforcement ofcourt writs and processes in cases involving the Fund. The special sheriff
of the Fund shall make a report to the proper court after any action taken by him, which
shall treat such action as if it were an act of its own sheriffs in all respects;
(r) To design and implement other programs that will further promote and mobilize
savings and provide additional resources for the mutual benefit of the members with
appropriate returns on the savings/investments. The program shall be so designed as to
spur socioeconomic take-off and maintain continued growth;
(s) To conduct continuing actuarialand statistical studies and valuations to determine the
financial condition of the Fund and taking into consideration such studies and valuations
and the limitations herein provided, readjust the benefits, contributions, interest rates of
the allocation or reallocation of the funds to the contingencies covered; and
(t) To exercise such powers and perform such acts as may be necessary, useful, incidental
or auxiliary to carry out the provisions of this Act.
The ECC Charter, Presidential Decree No. 626
ART. 177. Powers and duties. - The Commission shall have the following powers and duties:
(a) To assess and fix a rate of contribution from all employers;
(b) To determine the rate of contribution payable by an employer whose records show a
high frequency of work accidents or occupational disease due to failure by the said
employer to observe adequate safety measures;
(c) To approve rules and regulations governing the processing of claims and the
settlement of disputes arising therefrom as prescribed by the System;
(d) To initiate policies and programs toward adequate occupational health and safety and
accident prevention in the working environment, rehabilitation other than those provided
for under Art. 190 hereof, and other related programs and activities, and to appropriate
funds therefor. (As amended by Sec. 3, P.D. 1368).
(e) To make the necessary actuarial studies and calculations concerning the grant of
constant help and income benefits for permanent disability or death, and the
rationalization of the benefits for permanent disability and death under the Title with
benefits payable by the System for similar contingencies; Provided; That the Commission
may upgrade benefits and add new ones subject toapproval of the President; and
Provided, Further, That the actuarial stabilityof the State Insurance Fund shall be
guaranteed; Provided, Finally, that such increases in benefits shall not require any
increases in contribution, except as provided for in paragraph (b) hereof. (As amended by
Sec. 3, P.D. 1641).
(f) To appoint the personnel of its staff, subject to civil service law and rules, but exempt
from WAPCO law and regulations;
(g) To adopt annually a budget of expenditures of the Commission and its staff
chargeable against the State Insurance Fund: Provided, that the SSS and GSIS shall
advance on a quarterly basis the remittances of allotment of the loading fund for this
Commission's operational expenses based on its annual budget as duly approved by the
Ministry of Budget and Management. (As amended by Sec. 3, P.D. 1921).
(h) To have the power to administeroath and affirmation, and to issue subpoena and
subpoena duces tecum in connection with any question or issue arising from appealed
cases under this Title.
(i) To sue and be sued in court;
(j) To acquire property, real or personal, which may be necessary or expedient for the
attainment of the purposes of this Title;
(k) To enter into agreements or contracts for such services or aid as may be needed for
the proper, efficient and stable administration of the program;
(l) To perform such other acts as it may deem appropriate for the attainment of the
purposes of the Commission and proper enforcement of the provisions of thisTitle. (As
amended by Sec. 18, P.D.850). (Emphasis supplied.)
The GSIS, PHILHEALTH, ECC and HDMF are vested by their respective charters with various
powers and functions to carry out the purposes for which they were created. While powers and
functions associated with appointments, compensation and benefits affect the career
development, employment status, rights, privileges, and welfare of government officials and
employees, the GSIS, PHILHEALTH, ECC and HDMF are also tasked to perform other
corporate powers and functions that are not personnel-related. All of these powers and functions,
whether personnel-related or not, are carried out and exercised by the respective Boards of the
GSIS, PHILHEALTH, ECC and HDMF. Hence, when the CSC Chairman sits as a member of
the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF, he may exercise these
powers and functions, which are not anymore derived from his position as CSC Chairman, such
as imposing intereston unpaid or unremitted contributions,38 issuing guidelines for the
accreditation of health care providers,39 or approving restructuring proposals in the payment of
unpaid loan amortizations.40 The Court also notes that Duque’s designation as member of the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF entitles him to receive per
diem,41 a form of additional compensation that is disallowed by the concept of an ex
officioposition by virtue of its clear contravention of the proscription set by Section 2, Article
IX-A of the 1987 Constitution. This situation goes against the principle behind an ex officio
position, and must, therefore, be held unconstitutional.
Apart from violating the prohibition against holding multiple offices, Duque’s designation as
member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF impairs the
independence of the CSC. Under Section 17,42 Article VII of the Constitution, the President
exercises control over all government offices in the Executive Branch. An office that is legally
not under the control of the President is not part of the Executive Branch.43 The Court has aptly
explained in Rufino v. Endriga:44
Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial
branches, or must belong to one of the independent constitutional bodies, ormust be a quasi-
judicial body or local government unit. Otherwise, such government office, entity, or agency has
no legal and constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial branches of government.1âwphi1 The
CCP is also not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial
body nor a local government unit. Thus, the CCP must fall underthe Executive branch. Under the
Revised Administrative Code of 1987, any agency "not placed by law or order creating them
under any specific department" falls "under the Office of the President."
Since the President exercises control over "all the executive departments, bureaus, and offices,"
the President necessarily exercises control over the CCP which is an office in the Executive
branch. In mandating that the President "shall have control of all executive . . . offices," x x x
Section 17, Article VII of the 1987 Constitution does not exempt any executive office —
oneperforming executive functions outside of the independent constitutional bodies — from the
President’s power of control. There is no dispute that the CCP performs executive, and not
legislative, judicial, or quasi-judicial functions.
The President’s power of control applies to the acts or decisions of all officers in the Executive
branch. This is true whether such officers are appointed by the President or by heads of
departments, agencies, commissions, or boards. The power of control means the power to revise
or reverse the acts or decisions of a subordinate officer involving the exercise of discretion.
In short, the President sits at the apex of the Executive branch, and exercises "control of all the
executive departments, bureaus, and offices." There can be no instance under the Constitution
where an officer of the Executive branch is outside the control of the President. The Executive
branch is unitary since there is only one President vested with executive power exercising control
over the entire Executive branch. Any office in the Executive branch that is not under the control
of the President is a lost command whose existence is withoutany legal or constitutional basis.
(Emphasis supplied)
As provided in their respective charters, PHILHEALTH and ECC have the status of a
government corporation and are deemed attached to the Department of Health45 and the
Department of Labor,46 respectively. On the other hand, the GSIS and HDMF fall under the
Office of the President.47 The corporate powers of the GSIS, PHILHEALTH, ECC and HDMF
are exercised through their governing Boards, members of which are all appointed by the
President of the Philippines. Undoubtedly, the GSIS, PHILHEALTH, ECC and HDMF and the
members of their respective governing Boards are under the control of the President. As such,
the CSC Chairman cannot be a member of a government entity that is under the control of the
President without impairing the independence vested in the CSC by the 1987 Constitution.
3.
Effect of declaration of unconstitutionality

of Duque’s designation as member of the
governing Boards of theGSIS, PHILHEALTH,
ECC and HDMF - The De FactoOfficer Doctrine
In view of the application of the prohibition under Section 2, Article IX-A of the 1987
Constitution, Duque did not validly hold office as Director or Trustee of the GSIS,
PHILHEALTH, ECC and HDMF concurrently with his position of CSC Chairman. Accordingly,
he was not to be considered as a de jure officer while he served his term as Director or Trustee of
these GOCCs. A de jure officer is one who is deemed, in all respects, legally appointed and
qualified and whose term of office has not expired.48
That notwithstanding, Duque was a de facto officer during his tenure as a Director or Trustee of
the GSIS, PHILHEALTH, ECC and HDMF. In Civil Liberties Union v. Executive Secretary,49
the Court has said:
During their tenure in the questioned positions, respondents may be considered de facto officers
and as such entitled to emoluments for actual services rendered. Ithas been held that "in cases
where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of
the office, and may in an appropriate action recover the salary, fees and other compensations
attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it
seems unjust that the public should benefit by the services of an officer de facto and then be
freed from all liability to pay any one for such services. Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in the questioned
positions may therefore be retained by them.
A de facto officer is one who derives his appointment from one having colorable authority to
appoint, ifthe office is an appointive office, and whose appointment is valid on its face.50 He
may also be one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer.51 Consequently, the acts of the de facto
officer are just as valid for all purposes as those of a de jure officer, in so far as the public or
third persons who are interested therein are concerned.52
In order to be clear, therefore, the Court holds that all official actions of Duque as a Director or
Trustee of the GSIS, PHILHEAL TH, ECC and HDMF, were presumed valid, binding and
effective as if he was the officer legally appointed and qualified for the office.53 This
clarification is necessary in order to protect the sanctity and integrity of the dealings by the
public with persons whose ostensible authority emanates from the State. Duque's official actions
covered by this clarification extend but are not limited to the issuance of Board resolutions and
memoranda approving appointments to positions in the concerned GOCCs, promulgation of
policies and guidelines on compensation and employee benefits, and adoption of programs to
carry out the corporate powers of the GSIS, PHILHEAL TH, ECC and HDMF.
WHEREFORE, the petition is PARTIALLY GRANTED. The Court UPHOLDS THE
CONSTITUTIONALITY of Section 14, Chapter 3, Title I-A, Book V of Executive Order No.
292; ANNULS AND VOIDS Executive Order No. 864 dated February 22, 2010 and the
designation of Hon. Francisco T. Duque III as a Member of the Board of Directors/Trustees of
the Government Service Insurance System; Philippine Health Insurance Corporation; Employees
Compensation Commission; and Home Development Mutual Fund in an ex officio capacity in
relation to his appointment as Chairman of the Civil Service Commission for being
UNCONSTITUTIONAL AND VIOLATIVE of Sections 1 and 2, Article IX-A of the 1987
Constitution; and DECLARES that Hon. Francisco T. Duque III was a de facto officer during his
tenure as Director/Trustee of the Government Service Insurance System; Philippine Health
Insurance Corporation; Employees Compensation Commission; and Home Development Mutual
Fund.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice





(On Official Leave)

ESTELA M. PERLAS-BERNABE**
Associate Justice
Associate Justice
Associate Justice
CERTIFICATION

Chief Justice
Footnotes
* On leave.
** On official leave.
1 Section 1. The Constitutional Commissions, which shall be independent, are the Civil
Service Commission, the Commission on Elections, and the Commission on Audit.
2 Section 2. No member of a Constitutional Commission shall, during his tenure, hold

any other office or employment. Neither shall he engage in the practice of any profession
or in the active management or control of any business which, in any way, may be
affected by the functions of his office, nor shall he be financially interested, directly or
indirectly, in any contract with, or in any franchise or privilege granted by the
Government, any of its subdivisions, agencies, or instrumentalities, including
government-owned or controlled corporations or their subsidiaries.
3 Rollo, p. 8.
4 Id. at 13-15.
5 Id. at 16.
6 Id. at 18-19.
7 Id. at 19-22; ECC is a GOCC attached to the Department of Labor and Employment,
PHILHEALTH to the Department of Health, and HDMF and GSIS to the Office of the
President.
8 Id. at 21-22.
9 Id. at 23.
10 Id. at 23-28.
11 Id. at 27-28.
12 Id. at 31.
13 Id. at 35-36.
14 Id. at 72-76.
15 Id. at 76.
16 Id. at 78.
17 G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA 317.
18 Rollo, p. 80.
19 Id. at 81.
20 Id. at 85-86.
21 Id. at 86.
22 Id. at 86-87.
23 Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of Budget and
Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 382.
24 Rollo, pp. 68-72.
25 G.R. No. 191644, February 19, 2013, 691 SCRA 196, 207-208.
26 An Act to Promote Financial Viability and Fiscal Discipline in Government-Owned or

Controlled Corporations and to Strengthen the Role of the State in its Governance and
Management to Make Them More Responsive to the Needs of Public Interest and for
Other Purposes.
27 Funa v. Ermita, G.R. No. 184740, February 11, 2010, 612 SCRA 308, 319.
28 Funa v.Villar, G.R. No. 192791, April 24, 2012, 670 SCRA 579, 592, citing David v.
MacapagalArroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 &
171424, May 3, 2006, 489 SCRA 160, 214-215.
29 Javier v. Commission on Elections,Nos. L-68379-81, September 22, 1986, 144 SCRA

194, 198.
30 Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18, 1990, 192 SCRA 358, 360.
31 The Constitution further vests the Commissions with the following characteristics to
insure their independence:
(a) They are constitutionally created, and may not be abolished by statute.
(b) Each is expressly described as independent.
(c) Each is conferred certain powers and functions which cannot be reduced by
statute.
(d) The Chairmen and members cannot beremoved except by impeachment.
(e) The Chairmen and members are given a fairlylong term of office of seven
years.
(f) The Chairmen and members may not be reappointed or appointed in an acting
capacity.
xxxx
(g) The salaries of the chairman and members are relatively high and may not be
decreased during continuance in office.
(h) The Commissions enjoy fiscal autonomy.
xxxx
(i) Each Commission may promulgate its own procedural rules, provided they do
not diminish, increase or modify substantive rights [though subject to disapproval
by the Supreme Court].
(j) The Chairmen and members are subject to certain disqualifications calculated
to strengthen their integrity.
(k) The Commissions may appoint their own officials and employees in
accordance with Civil Service Law. (per Nachura, Outline Reviewer in Political
Law, 2009 ed., pp. 325-326).
32 Nachura, Outline Reviewer in Political Law, 2009 ed., p. 326.
34 G.R. No. 83896, February 22, 1991, 194 SCRA 317, 329-331.
35 Id. at 333-335.
36 Section 12, Chapter 3, Title I-A, Book V of EO 292.
37 Section 13, Chapter 3, Title I-A, Book V of EO 292.
38 RA 8291, Section 43(h).
39 RA 7875, Section 16(l).
40 RA 9679, Section 13(o).
41 See RA 8291, Section 42; RA 7875, Section 18(d); PD 626, Article 176(b); RA 9679,
Section 14.
42 Section 17. The President shall have control of all the executive departments, bureaus
and offices. He shall ensure that the laws be faithfully executed.
43 Liban v. Gordon, G.R. No. 175352, July 15, 2009, 593 SCRA 68, 85.
44 G.R. No. 139554 & 139565, July 21, 2006, 496 SCRA 13, 63-65.
45 Section 14, RA 7875.
46 Article 176, PD 626.
47 Section 23, Chapter 8, Title II, Book III of EO 292.The Agencies under the Office of
the President.
— The agencies under the Office of the President refer to those offices placed
under the chairmanship of the President, those under the supervision and control
of the President, those under the administrative supervision of the Office of the
President, those attached to it for policy and program coordination, and those that
are not placed by law or order creating them under any special department.
48 Topacio v. Ong, G.R. No. 179895, December 18, 2008, 574 SCRA 817, 830.
49 Supra note 17 at 339-340.

50 Dimaandal v. Commission on Audit, G.R. No. 122197, June 26, 1998, 291 SCRA
322, 330.
51 Id; see also The Civil Service Commission v. Joson, Jr., G.R. No. 154674, May 27,
2004, 429 SCRA 773, 786.
52 Supra note 48 at 829-830.
53 See Seneres v. Commission on Elections, G.R. No. 178678, April 16, 2009, 585
SCRA 557, 575.

SUPREME COURT
Manila
EN BANC
G.R. No. 213525 January 27, 2015
FORTUNE LIFE INSURANCE COMPANY, INC., Petitioner,

vs.
COMMISSION ON AUDIT (COA) PROPER; COA REGIONAL OFFICE NO. VI-
WESTERN VISAYAS; AUDIT GROUP LGS-B, PROVINCE OF ANTIQUE; AND
PROVINCIAL GOVERNMENT OF ANTIQUE, Respondents.
RESOLUTION
BERSAMIN, J.:
Petitioner Fortune Life Insurance Company, Inc. seeks the Reconsideration1 of the resolution
promulgated on August 19, 2014,2 whereby the Court dismissed its petition for certiorari under
Rule 64 in relation to Rule 65 of the Rules of Courtdue to its non-compliance with the provisions
of Rule 64, particularly for:(a) the late filing of the petition; (b) the non-submission of the proof
of service and verified declaration; and (c) the failure to show grave abuse of discretion on the
part of the respondents.3
Antecedents
Respondent Provincial Government of Antique (LGU) and the petitioner executed a

memorandum of agreement concerning the life insurance coverage of qualified
barangaysecretaries, treasurers and tanod, the former obligating P4,393,593.60for the premium
payment, and subsequently submitting the corresponding disbursement voucher to COA Antique
for pre-audit.4 The latter office disallowed the payment for lack of legal basis under Republic
Act No. 7160 (Local Government Code). Respondent LGU appealed but its appeal was denied.
Consequently, the petitioner filed its petition for money claim in the COA.5 On November 15,
2012, the COA issued its decision denying the petition,6 holding that under Section 447 and
Section 458 of the Local Government Code only municipal or city governments are expressly
vested with the power to secure group insurance coverage for barangayworkers; and noting the
LGU’s failure to comply with the requirement of publication under Section 21 of Republic Act
No. 9184 (Government Procurement Reform Act).
The petitioner received a copy of the COA decision on December 14, 2012,7 and filed its motion
for reconsideration on January 14, 2013.8 However, the COA denied the motion,9 the denial
being received by the petitioner on July 14, 2014.10
Hence, the petitioner filed the petition for certiorari on August 12, 2014, but the petition for
certiorari was dismissed as earlier stated through the resolution promulgated on August 19,2014
for (a) the late filing of the petition; (b) the non-submission of the proof of service and verified
declaration; and (c) the failure to show grave abuse of discretion on the part of the respondents.
Issues
In its motion for reconsideration, the petitioner submits that it filed the petition for certiorari
within the reglementary period following the fresh period rule enunciated in Neypes v. Court of
Appeals;11 and that the petition for certiorari included an affidavit of service in compliance with
Section 3, Rule 13 of the Rules of Court. It admits having overlooked the submission of a
verified declaration; and prays that the declaration attached to the motion for reconsideration be
admitted by virtue of its substantial compliance with the Efficient Use of Paper Rule12 by
previously submitting a compact disc (CD) containing the petition for certiorari and its annexes.
It disagrees with the Court, insisting that it showed and proved grave abuse of discretion on the
part of the COA in issuing the assailed decision.
Ruling
We deny the motion for reconsideration for being without merit.
Petitioner did not comply with

the rule on proof of service
The petitioner claims that the affidavit of service attached to the petition for certiorari complied
with the requirement on proof of service.
The claim is unwarranted. The petitioner obviously ignores that Section 13, Rule 13 of the Rules
of Court concerns two types of proof of service, namely: the affidavit and the registry receipt,
viz: Section 13. Proof of Service. – x x x. If service is made by registered mail, proof shall be
made by such affidavit and the registry receipt issued by the mailing office. The registry return
card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed
letter together with the certified or sworn copy of the notice given by the postmaster to the
addressee. Section 13 thus requires that if the service is done by registered mail, proof of service
shall consist of the affidavit of the person effecting the mailing and the registry receipt, both of
which must be appended to the paper being served. A compliance withthe rule is mandatory,
such that
there is no proof of service if either or both are not submitted.13
Here, the petition for certiorari only carried the affidavit of service executed by one Marcelino T.
Pascua, Jr., who declared that he had served copies of the petition by registered mail "under
Registry Receipt Nos. 70449, 70453, 70458,70498 and 70524 attached tothe appropriate spaces
found on pages 64-65 of the petition."14 The petition only bore, however, the cut print-outs of
what appeared to be the registry receipt numbers of the registered matters, not the registry
receipts themselves. The rule requires to be appended the registry receipts, nottheir
reproductions. Hence, the cut print-outs did not substantially comply with the rule. This was the
reason why the Court held in the resolution of August 19, 2014 that the petitioner did not comply
with the requirement of proof of service.15
II
Fresh Period Ruleunder Neypes

did not apply to the petition for certiorari
under Rule 64 of the Rules of Court
The petitioner posits that the fresh period rule applies because its Rule 64 petition is akin to a
petition for review brought under Rule 42 of the Rules of Court; hence, conformably with the
fresh period rule, the period to file a Rule 64 petition should also be reckoned from the receipt of
the order denying the motion for reconsideration or the motion for new trial.16
The petitioner’s position cannot be sustained.
There is no parity between the petition for review under Rule 42 and the petition for certiorari
under Rule 64.
As to the nature of the procedures, Rule 42 governs an appeal from the judgment or final order
rendered by the Regional Trial Court in the exercise of its appellate jurisdiction. Such appeal is
on a question of fact, or of law, or of mixed question of fact and law, and is given due course
only upon a prima facie showing that the Regional Trial Court committed an error of fact or law
warranting the reversal or modification of the challenged judgment or final order.17 In contrast,
the petition for certiorari under Rule 64 is similar to the petition for certiorari under Rule 65, and
assails a judgment or final order of the Commission on Elections (COMELEC), or the
Commission on Audit (COA). The petition is not designed to correct only errors of jurisdiction,
not errors of judgment.18 Questions of fact cannot be raised except to determine whether the
COMELEC or the COA were guilty of grave abuse of discretion amounting to lack or excess of
jurisdiction.
The reglementary periods under Rule42 and Rule 64 are different. In the former, the aggrieved
party is allowed 15 days to file the petition for review from receipt of the assailed decision or
final order, or from receipt of the denial of a motion for new trial or reconsideration.19 In the
latter, the petition is filed within 30 days from notice of the judgment or final order or resolution
sought to be reviewed. The filing of a motion for new trial or reconsideration, if allowed under
the procedural rules of the Commission concerned, interrupts the period; hence, should the
motion be denied, the aggrieved party may file the petition within the remaining period, which
shall not be less than five days in any event, reckoned from the notice of denial.20
The petitioner filed its motion for reconsideration on January 14, 2013, which was 31 days after
receiving the assailed decision of the COA on December 14, 2012.21 Pursuant to Section 3 of
Rule 64, it had only five days from receipt of the denial of its motion for reconsideration to file
the petition. Considering that it received the notice of the denial on July 14, 2014, it had only
until July19, 2014 to file the petition. However, it filed the petition on August 13, 2014, which
was 25 days too late.
We ruled in Pates v. Commission on Elections22 that the belated filing of the petition for
certiorari under Rule 64 on the belief that the fresh period ruleshould apply was fatal to the
recourse. As such, the petitioner herein should suffer the same fate for having wrongly assumed
that the fresh period rule under Neypes23 applied. Rules of procedure may be relaxed only to
relieve a litigant of an injustice that is not commensurate with the degree of his thoughtlessness
in not complying with the prescribed procedure.24 Absent this reason for liberality, the petition
cannot be allowed to prosper.
III
Petition for certiorari further lacked merit
The petition for certiorari is also dismissible for its lack of merit.
The petitioner insists on having fully shown that the COA committed grave abuse of discretion,
to wit: (1) the challenged decision was rendered by a divided COA proper; (2) the COA took
almost a year before promulgating its decision, and more thana year in resolving the motion for
reconsideration, in contravention of the express mandate of the Constitution; (3) the resolution
denying the motion for reconsideration was made up of only two sentences; (4) the matter
involved a novel issue that called for an interpretation of the pertinent provisions of the Local
Government Code; and (5) in issuing the resolution, COA Commissioners Grace Pulido-Tan and
Heidi L. Mendoza made it appear that they knew the Local Government Code better than former
Senator Aquilino Pimentel who offered an opinion on the matter.25
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as to be
equivalent to lack or excess of jurisdiction; in other words, power is exercised in an arbitrary or
despotic manner by reason of passion, prejudice, or personal hostility; and such exercise is so
patent or so gross as to amount to an evasion of a positive duty or to a virtual refusal either to
perform the duty enjoined or to act at all in contemplation of law.26
A close look indicates that the petition for certioraridid not sufficiently disclose how the COA
committed grave abuse of its discretion. For sure, the bases cited by the petitioner did not
approximate grave abuse of discretion. To start with, the supposed delays taken by the COA in
deciding the appeal were neither arbitrary nor whimsical on its part. Secondly, the mere terseness
of the denial of the motion for reconsideration was not a factor in demonstrating an abuse of
discretion. And, lastly, the fact that Senator Pimentel, even if he had been the main proponent of
the Local Government Codein the Legislature, expressed an opinion on the issues different from
the COA Commissioners’ own did not matter, for it was the latter’s adjudication that had any
value and decisiveness on the issues by virtue of their being the Constitutionally officials
entrusted with the authority for that purpose.
It is equally relevant to note that the COA denied the money claim of the petitioner for the
further reason of lack of sufficient publication as required by the Government Procurement Act.
In that light, the COA acted well within its authority in denying the petitioner’s claim.
IV
Petitioner and its counsel

exhibited harshness and disrespect
towards the Court and its Members
The petitioner contends that the Court erred in appreciating the petitioner’s non-compliance with
the requirement of the proof of service, alleging that even "a perfunctory scrutiny" of the petition
for certiorari and its annexes could have easily shown that it had attached an affidavit of service
to the petition. It goes on to make the following statements, viz:
25. Apparently, the staff of the Justice-in-charge failed to verify the PETITION and its annexes
up to its last page, thus, the erroneous finding that there was non-submission of the proof of
service; 26. In turn, the same omission was hoisted upon the other members of this Honorable
Court who took the observation from the office of the Justice-in-charge, to be the obtaining fact,
when in truth and in fact, it is not;27
The petitioner and its counsel thereby exhibited their plain inability to accept the ill
consequences of their own shortcomings, and instead showed an unabashed propensity to readily
lay blame on others like the Court and its Members. In doing so, they employed harsh and
disrespectful language that accused the Court and its Members of ignorance and recklessness in
the performance of their function of adjudication.
We do not tolerate such harsh and disrespectful language being uttered against the Court and its
Members. We consider the accusatory language particularly offensive because it was unfounded
and undeserved. As this resolution earlier clarifies, the petition for certiorari did not contain a
proper affidavit of service.We do not need to rehash the clarification. Had the petitioner and its
counsel been humbler to accept their self-inflicted situation and more contrite, they would have
desisted from their harshness and disrespect towards the Court and its Members. Although we
are not beyond error, we assure the petitioner and its counsel that our resolutions and
determinations are arrived at or reached with much care and caution, aware that the lives,
properties and rights of the litigants are always at stake. If there be errors, they would be
unintended, and would be the result of human oversight. But in this instance the Court and its
Members committed no error. The petition bore only cut reproductions of the supposed registry
receipts, which even a mere "perfunctory scrutiny" would not pass as the original registry
receipts required by the Rules of Court.
Accordingly, the petitioner and its counsel, Atty. Eduardo S. Fortaleza, should fully explain in
writing why they should not be punished for indirect contempt of court for their harsh and
disrespectful language towards the Court and its Members; and, in his case, Atty. Fortaleza
should further show cause why he should" not be disbarred.
WHEREFORE, the Court DENIES the Motion for Reconsideration for its lack of merit;
ORDERS the petitioner and its counsel, Atty. Eduardo S. Fortaleza, to show cause in writing
within ten (10) days from notice why they should not be punished for indirect contempt of court;
and FURTHER DIRECTS Atty. Fortaleza to show cause in the same period why he should not
be disbarred.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
(On Leave)
Chief Justice
ANTONIO T. CARPIO** PRESBITERO J. VELASCO, JR.

Acting Chief Justice Associate Justice
TERESITA J. LEONARDO-DE (On Official Leave)

CASTRO ARTURO D. BRION***



ESTELA M. PERLAS-BERNABE MARVIC M.V.F. LEONEN

Associate Justice
CERTIFICATION
in the above resolution were reached in consultation before the case was assigned to the writer of
ANTONIO T. CARPIO
Footnotes
* On Leave.
** Acting Chief Justice per Special Order No. 1914.
1 Rollo, pp. 229-242.
2 Id. at 226.
3 Id. at 226.
4 Id. at 18.
5 Id. at 13-22.
6 Id. at 71-91.
7 Id. at 92.
8 Id. at 92-104.
9 Id. at 70.
10 Id. at 6.
11 G.R. No. 141524, September 14, 2005, 469 SCRA 633.
12 A.M. No. 11-9-4-SC, November 13, 2012.
13 Cruz v. Court of Appeals, G.R. No. 123340, August 29, 2002, 388 SCRA 72, 80-81.
14 Rollo, p. 224.
15 Supra note 1.
16 Rollo, pp. 234-235.
17 Section 6, Rule 42 of the Rules of Court.
18 Reyna v. Commission on Audit, G.R. No. 167219, February 8, 2011, 647 SCRA 210,
225.
19 Section 1, Rule 42, Rules of Court.
20 Section 3, Rule 64, Rules of Court, states:
Section 3. Time to file petition. – The petition shall be filed within thirty (30)
days from notice of the judgment or final order or resolution sought to be
reviewed. The filing of a motion for new trial or reconsideration of said judgment
or final order or resolution, if allowed under the procedural rules of the
Commission concerned, shall interrupt the period herein fixed. If the motion is
denied, the aggrieved party may file the petition within the remaining period, but
which shall not be less than five (5) days in any event, reckoned from notice of
denial.
21 Rollo, p. 7.
22 Pates v. Commission on Elections, G.R. No. 184915, June 30, 2009, 591 SCRA 481,
488.
23 Supra, note 11.
24 Canton v. City of Cebu, G.R. No. 152898, February 12, 2007, 515 SCRA 441, 448.
25 Rollo, pp. 239-242.
26 Delos Santos v. Court of Appeals,G.R. No. 169498, December 11, 2008, 573 SCRA
690, 700.
27 Rollo, p. 238.
SUPREME COURT
Manila
EN BANC
G.R. No. 209287 February 3, 2015
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG

MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE
PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN,
CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA WOMEN'S
PARTY REPRESENTATIVE; REP. TERRY L. RIDON, KABATAAN PARTYLIST
REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAYAN MUNA PARTY-
LIST REPRESENTATIVE; RENATO M. REYES, JR., SECRETARY GENERAL OF
BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG KAPATIRAN PARTY; VENCER
MARI E. CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR VILLANUEVA,
CONVENOR, YOUTH ACT NOW, Petitioners,
vs.
PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND
x-----------------------x
G.R. No. 209135
AUGUSTO L. SYJUCO JR., Ph.D., Petitioner,

vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF DEPARTMENT
OF BUDGET AND MANAGEMENT; AND HON. FRANKLIN MAGTUNAO DRILON,
IN HIS CAPACITY AS THE SENATE PRESIDENT OF THE PHILIPPINES,
Respondents.
x-----------------------x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner,

vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT; AND EXECUTIVE SECRETARY
PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO OF THE
PRESIDENT, Respondents.
x-----------------------x
G.R. No. 209155
ATTY. JOSE MALVAR VILLEGAS, JR. Petitioner

vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND THE
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY

DEAN FROILAN M. BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M.
BRIONES, Petitioners,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. FLORENCIO B.
ABAD, Respondents.
x-----------------------x
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,

vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT (DBM), Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN M. ABANTE AND REV.

JOSE L. GONZALEZ, Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE
PHILIPPINES, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON;
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO
BELMONTE, JR.; THE EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF BUDGET AND
MANAGEMENT, REPRESENTED BY SECRETARY FLORENCIO ABAD; THE
DEPARTMENT OF FINANCE, REPRESENTED BY SECRETARY CESAR V.
PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA V.
DE LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF

GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS 1ST VICE
PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA NARTATES, FOR
HERSELF AND AS NATIONAL PRESIDENT OF THE CONSOLIDATED UNION OF
EMPLOYEES NATIONAL HOUSING AUTHORITY (CUE-NHA); MANUEL
BACLAGON, FOR HIMSELF AND AS PRESIDENT OF THE SOCIAL WELFARE
EMPLOYEES ASSOCIATION OF THE PHILIPPINES, DEPARTMENT OF SOCIAL
WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO);
ANTONIA PASCUAL, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE
DEPARTMENT OF AGRARIAN REFORM EMPLOYEES ASSOCIATION (DAREA);
ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE
ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION (EMBEU);
AND MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT OF THE KAPISANAN
PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA (KKK-MMDA), Petitioners,
vs.
PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND HON.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (V ACC), REPRESENTED BY

DANTE L. JIMENEZ, Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD,
SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT,
Respondents.
RESOLUTION
BERSAMIN, J.:
The Constitution must ever remain supreme. All must bow to the mandate of this law.
Expediency must not be allowed to sap its strength nor greed for power debase its rectitude.1
Before the Court are the Motion for Reconsideration2 filed by the respondents, and the Motion
for Partial Reconsideration3 filed by the petitioners in G.R. No. 209442.
In their Motion for Reconsideration, the respondents assail the decision4 promulgated on July 1
2014 upon the following procedural and substantive errors, viz:
PROCEDURAL
WITHOUT AN ACTUAL CASE OR CONTROVERSY, ALLEGATIONS OF GRAVE ABUSE

OF DISCRETION ON THE PART OF ANY INSTRUMENTALITY OF THE GOVERNMENT
CANNOT CONFER ON THIS HONORABLE COURT THE POWER TO DETERMINE THE
CONSTITUTIONALITY OF THE DAP AND NBC NO. 541
II
PETITIONERS’ ACTIONS DO NOT PRESENT AN ACTUAL CASE OR CONTROVERSY

AND THEREFORE THIS HONORABLE COURT DID NOT ACQUIRE JURISDICTION
III
PETITIONERS HAVE NEITHER BEEN INJURED NOR THREATENED WITH INJURY AS

A RESULT OF THE OPERATION OF THE DAP AND THEREFORE SHOULD HAVE BEEN
HELD TO HAVE NO STANDING TO BRING THESE SUITS FOR CERTIORARI AND
PROHIBITION
IV
NOR CAN PETITIONERS’ STANDING BE SUSTAINED ON THE GROUND THAT THEY

ARE BRINGING THESE SUITS AS CITIZENS AND AS TAXPAYERS
THE DECISION OF THIS HONORABLE COURT IS NOT BASED ON A CONSIDERATION

OF THE ACTUAL APPLICATIONS OF THE DAP IN 116 CASES BUT SOLELY ON AN
ABSTRACT CONSIDERATION OF NBC NO. 5415
SUBSTANTIVE
THE EXECUTIVE DEPARTMENT PROPERLY INTERPRETED "SAVINGS" UNDER THE

RELEVANT PROVISIONS OF THE GAA
II
ALL DAP APPLICATIONS HAVE APPROPRIATION COVER
III
THE PRESIDENT HAS AUTHORITY TO TRANSFER SAVINGS TO OTHER

DEPARTMENTS PURSUANT TO HIS CONSTITUTIONAL POWERS
IV
THE 2011, 2012 AND 2013 GAAS ONLY REQUIRE THAT REVENUE COLLECTIONS
FROM EACH SOURCE OF REVENUE ENUMERATED IN THE BUDGET PROPOSAL
MUST EXCEED THE CORRESPONDING REVENUE TARGET
THE OPERATIVE FACT DOCTRINE WAS WRONGLY APPLIED6
The respondents maintain that the issues in these consolidated cases were mischaracterized and
unnecessarily constitutionalized; that the Court’s interpretation of savings can be overturned by
legislation considering that savings is defined in the General Appropriations Act (GAA), hence
making savings a statutory issue;7 that the withdrawn unobligated allotments and unreleased
appropriations constitute savings and may be used for augmentation;8 and that the Court should
apply legally recognized norms and principles, most especially the presumption of good faith, in
resolving their motion.9
On their part, the petitioners in G.R. No. 209442 pray for the partial reconsideration of the
decision on the ground that the Court thereby:
FAILED TO DECLARE AS UNCONSTITUTIONAL AND ILLEGAL ALL MONEYS

UNDER THE DISBURSEMENT ACCELERATION PROGRAM (DAP) USED FOR
ALLEGED AUGMENTATION OF APPROPRIATION ITEMS THAT DID NOT HAVE
ACTUAL DEFICIENCIES10
They submit that augmentation of items beyond the maximum amounts recommended by the
President for the programs, activities and projects (PAPs) contained in the budget submitted to
Congress should be declared unconstitutional.
Ruling of the Court
We deny the motion for reconsideration of the petitioners in G.R. No. 209442, and partially grant
the motion for reconsideration of the respondents.
The procedural challenges raised by the respondents, being a mere rehash of their earlier
arguments herein, are dismissed for being already passed upon in the assailed decision.
As to the substantive challenges, the Court discerns that the grounds are also reiterations of the
arguments that were already thoroughly discussed and passed upon in the assailed decision.
However, certain declarations in our July 1, 2014 Decision are modified in order to clarify
certain matters and dispel further uncertainty.
1.
The Court’s power of judicial review
The respondents argue that the Executive has not violated the GAA because savings as a
conceptis an ordinary species of interpretation that calls for legislative, instead of judicial,
determination.11
This argument cannot stand.
The consolidated petitions distinctly raised the question of the constitutionality of the acts and
practices under the DAP, particularly their non-conformity with Section 25(5), Article VI of the
Constitution and the principles of separation of power and equal protection. Hence, the matter is
still entirely within the Court’s competence, and its determination does not pertain to Congress to
the exclusion of the Court. Indeed, the interpretation of the GAA and its definition of savings is a
foremost judicial function. This is because the power of judicial review vested in the Court is
exclusive. As clarified in Endencia and Jugo v. David:12
Under our system of constitutional government, the Legislative department is assigned the power
to make and enact laws. The Executive department is charged with the execution of carrying out
of the provisions of said laws. But the interpretation and application of said laws belong
exclusively to the Judicial department. And this authority to interpret and apply the laws extends
to the Constitution. Before the courts can determine whether a law is constitutional or not, it will
have to interpret and ascertain the meaning not only of said law, but also of the pertinent portion
of the Constitution in order to decide whether there is a conflict between the two, because if there
is, then the law will have to give way and has to be declared invalid and unconstitutional.
xxxx
We have already said that the Legislature under our form of government is assigned the task and
the power to make and enact laws, but not to interpret them. This is more true with regard to the
interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative
department. If the Legislature may declare what a law means, or what a specific portion of the
Constitution means, especially after the courts have in actual case ascertain its meaning by
interpretation and applied it in a decision, this would surely cause confusion and instability in
judicial processes and court decisions. Under such a system, a final court determination of a case
based on a judicial interpretation of the law of the Constitution may be undermined or even
annulled by a subsequent and different interpretation of the law or of the Constitution by the
Legislative department. That would be neither wise nor desirable, besides being clearly violative
of the fundamental, principles of our constitutional system of government, particularly those
governing the separation of powers.13
The respondents cannot also ignore the glaring fact that the petitions primarily and significantly
alleged grave abuse of discretion on the part of the Executive in the implementation of the DAP.
The resolution of the petitions thus demanded the exercise by the Court of its aforedescribed
power of judicial review as mandated by the Constitution.
2.
Strict construction on the accumulation and utilization of savings
The decision of the Court has underscored that the exercise of the power to augment shall be
strictly construed by virtue of its being an exception to the general rule that the funding of PAPs
shall be limited to the amount fixed by Congress for the purpose.14 Necessarily, savings, their
utilization and their management will also be strictly construed against expanding the scope of
the power to augment.15 Such a strict interpretation is essential in order to keep the Executive
and other budget implementors within the limits of their prerogatives during budget execution,
and to prevent them from unduly transgressing Congress’ power of the purse.16 Hence,
regardless of the perceived beneficial purposes of the DAP, and regardless of whether the DAP is
viewed as an effective tool of stimulating the national economy, the acts and practices under the
DAP and the relevant provisions of NBC No. 541 cited in the Decision should remain illegal and
unconstitutional as long as the funds used to finance the projects mentioned therein are sourced
from savings that deviated from the relevant provisions of the GAA, as well as the limitation on
the power to augment under Section 25(5), Article VI of the Constitution. In a society governed
by laws, even the best intentions must come within the parameters defined and set by the
Constitution and the law. Laudable purposes must be carried out through legal methods.17
Respondents contend, however, that withdrawn unobligated allotments and unreleased

appropriations under the DAP are savings that may be used for augmentation, and that the
withdrawal of unobligated allotments were made pursuant to Section 38 Chapter 5, Book VI of
the Administrative Code;18 that Section 38 and Section 39, Chapter 5, Book VI of the
Administrative Code are consistent with Section 25(5), Article VI of the Constitution, which,
taken together, constitute "a framework for which economic managers of the nation may pull
various levers in the form of authorization from Congress to efficiently steer the economy
towards the specific and general purposes of the GAA;"19 and that the President’s augmentation
of deficient items is in accordance with the standing authority issued by Congress through
Section 39.
Section 25(5), Article VI of the Constitution states:
Section 25. x x x x x x x
5) No law shall be passed authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their respective offices from savings in
other items of their respective appropriations.
xxxx
Section 38 and Section 39, Chapter 5, Book VI of the Administrative Code provide:
Section 38. Suspension of Expenditure of Appropriations. - Except as otherwise provided in the

General Appropriations Act and whenever in his judgment the public interest so requires, the
President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop
further expenditure of funds allotted for any agency, or any other expenditure authorized in the
General Appropriations Act, except for personal services appropriations used for permanent
officials and employees.
Section 39. Authority to Use Savings in Appropriations to Cover Deficits.—Except as otherwise

provided in the General Appropriations Act, any savings in the regular appropriations authorized
in the General Appropriations Act for programs and projects of any department, office or agency,
may, with the approval of the President, be used to cover a deficit in any other item of the regular
appropriations: Provided, that the creation of new positions or increase of salaries shall not be
allowed to be funded from budgetary savings except when specifically authorized by law:
Provided, further, that whenever authorized positions are transferred from one program or project
to another within the same department, office or agency, the corresponding amounts appropriated
for personal services are also deemed transferred, without, however increasing the total outlay
for personal services of the department, office or agency concerned. (Bold underscoring supplied
for emphasis)
In the Decision, we said that:
Unobligated allotments, on the other hand, were encompassed by the first part of the definition
of "savings" in the GAA, that is, as "portions or balances of any programmed appropriation in
this Act free from any obligation or encumbrance." But the first part of the definition was further
qualified by the three enumerated instances of when savings would be realized. As such,
unobligated allotments could not be indiscriminately declared as savings without first
determining whether any of the three instances existed. This signified that the DBM’s
withdrawal of unobligated allotments had disregarded the definition of savings under the GAAs.
xxxx
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to
justify the withdrawal of unobligated allotments. But the provision authorized only the
suspension or stoppage of further expenditures, not the withdrawal of unobligated allotments, to
wit:
xxxx
Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38,
supra, but instead transferred the funds to other PAPs.20
We now clarify.
Section 38 refers to the authority of the President "to suspend or otherwise stop further
expenditure of funds allotted for any agency, or any other expenditure authorized in the General
Appropriations Act." When the President suspends or stops expenditure of funds, savings are not
automatically generated until it has been established that such funds or appropriations are free
from any obligation or encumbrance, and that the work, activity or purpose for which the
appropriation is authorized has been completed, discontinued or abandoned.
It is necessary to reiterate that under Section 5.7 of NBC No. 541, the withdrawn unobligated
allotments may be:
5.7.1 Reissued for the original programs and projects of the agencies/OUs concerned, from
which the allotments were withdrawn;
5.7.2 Realigned to cover additional funding for other existing programs and projects of the
agency/OU; or
5.7.3 Used to augment existing programs and projects of any agency and to fund priority
programs and projects not considered in the 2012 budget but expected to be started or
implemented during the current year.
Although the withdrawal of unobligated allotments may have effectively resulted in the
suspension or stoppage of expenditures through the issuance of negative Special Allotment
Release Orders (SARO), the reissuance of withdrawn allotments to the original programs and
projects is a clear indication that the program or project from which the allotments were
withdrawn has not been discontinued or abandoned. Consequently, as we have pointed out in the
Decision, "the purpose for which the withdrawn funds had been appropriated was not yet
fulfilled, or did not yet cease to exist, rendering the declaration of the funds as savings
impossible."21 In this regard, the withdrawal and transfer of unobligated allotments remain
unconstitutional. But then, whether the withdrawn allotments have actually been reissued to their
original programs or projects is a factual matter determinable by the proper tribunal.
Also, withdrawals of unobligated allotments pursuant to NBC No. 541 which shortened the
availability of appropriations for MOOE and capital outlays, and those which were transferred to
PAPs that were not determined to be deficient, are still constitutionally infirm and invalid.
At this point, it is likewise important to underscore that the reversion to the General Fund of
unexpended balances of appropriations – savings included – pursuant to Section 28 Chapter IV,
Book VI of the Administrative Code22 does not apply to the Constitutional Fiscal Autonomy
Group (CFAG), which include the Judiciary, Civil Service Commission, Commission on Audit,
Commission on Elections, Commission on Human Rights, and the Office of the Ombudsman.
The reason for this is that the fiscal autonomy enjoyed by the CFAG –
x x x contemplates a guarantee of full flexibility to allocate and utilize their resources with the
wisdom and dispatch that their needs require. It recognizes the power and authority to levy,
assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by
law for compensation and pay plans of the government and allocate and disburse such sums as
may be provided by law or prescribed by them in the course of the discharge of their functions.
Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100
typewriters but DBM rules we need only 10 typewriters and sends its recommendations to
Congress without even informing us, the autonomy given by the Constitution becomes an empty
and illusory platitude.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional offices
allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy
and violative not only of the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of
our constitutional system is based. x x x23
On the other hand, Section 39 is evidently in conflict with the plain text of Section 25(5), Article
VI of the Constitution because it allows the President to approve the use of any savings in the
regular appropriations authorized in the GAA for programs and projects of any department,
office or agency to cover a deficit in any other item of the regular appropriations. As such,
Section 39 violates the mandate of Section 25(5) because the latter expressly limits the authority
of the President to augment an item in the GAA to only those in his own Department out of the
savings in other items of his own Department’s appropriations. Accordingly, Section 39 cannot
serve as a valid authority to justify cross-border transfers under the DAP. Augmentations under
the DAP which are made by the Executive within its department shall, however, remain valid so
long as the requisites under Section 25(5) are complied with.
In this connection, the respondents must always be reminded that the Constitution is the basic
law to which all laws must conform. No act that conflicts with the Constitution can be valid.24
In Mutuc v. Commission on Elections,25 therefore, we have emphasized the importance of
recognizing and bowing to the supremacy of the Constitution:
x x x The concept of the Constitution as the fundamental law, setting forth the criterion for the
validity of any public act whether proceeding from the highest official or the lowest functionary,
is a postulate of our system of government. That is to manifest fealty to the rule of law, with
priority accorded to that which occupies the topmost rung in the legal hierarchy. The three
departments of government in the discharge of the functions with which it is [sic] entrusted have
no choice but to yield obedience to its commands. Whatever limits it imposes must be observed.
Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority,
whether substantive or formal, be transcended. The Presidency in the execution of the laws
cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in
deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the
fundamental law. Even its power of judicial review to pass upon the validity of the acts of the
coordinate branches in the course of adjudication is a logical corollary of this basic principle that
the Constitution is paramount. It overrides any governmental measure that fails to live up to its
mandates. Thereby there is a recognition of its being the supreme law.
Also, in Biraogo v. Philippine Truth Commission of 2010,26 we have reminded that: – The role
of the Constitution cannot be overlooked. It is through the Constitution that the fundamental
powers of government are established, limited and defined, and by which these powers are
distributed among the several departments. The Constitution is the basic and paramount law to
which all other laws must conform and to which all persons, including the highest officials of the
land, must defer. Constitutional doctrines must remain steadfast no matter what may be the tides
of time. It cannot be simply made to sway and accommodate the call of situations and much
more tailor itself to the whims and caprices of government and the people who run it.27
3.
The power to augment cannot be used to fund non-existent provisions in the GAA
The respondents posit that the Court has erroneously invalidated all the DAP-funded projects by
overlooking the difference between an item and an allotment class, and by concluding that they
do not have appropriation cover; and that such error may induce Congress and the Executive
(through the DBM) to ensure that all items should have at least P1 funding in order to allow
augmentation by the President.28
At the outset, we allay the respondents’ apprehension regarding the validity of the DAP funded
projects. It is to be emphatically indicated that the Decision did not declare the en masse
invalidation of the 116 DAP-funded projects. To be sure, the Court recognized the encouraging
effects of the DAP on the country’s economy,29 and acknowledged its laudable purposes, most
especially those directed towards infrastructure development and efficient delivery of basic
social services.30 It bears repeating that the DAP is a policy instrument that the Executive, by its
own prerogative, may utilize to spur economic growth and development.
Nonetheless, the Decision did find doubtful those projects that appeared to have no appropriation
cover under the relevant GAAs on the basis that: (1) the DAP funded projects that originally did
not contain any appropriation for some of the expense categories (personnel, MOOE and capital
outlay); and (2) the appropriation code and the particulars appearing in the SARO did not
correspond with the program specified in the GAA. The respondents assert, however, that there
is no constitutional requirement for Congress to create allotment classes within an item. What is
required is for Congress to create items to comply with the line-item veto of the President.31
After a careful reexamination of existing laws and jurisprudence, we find merit in the
respondents’ argument.
Indeed, Section 25(5) of the 1987 Constitution mentions of the term item that may be the object
of augmentation by the President, the Senate President, the Speaker of the House, the Chief
Justice, and the heads of the Constitutional Commissions. In Belgica v. Ochoa,32 we said that an
item that is the distinct and several part of the appropriation bill, in line with the item-veto power
of the President, must contain "specific appropriations of money" and not be only general
provisions, thus:
For the President to exercise his item-veto power, it necessarily follows that there exists a proper
"item" which may be the object of the veto. An item, as defined in the field of appropriations,
pertains to "the particulars, the details, the distinct and severable parts of the appropriation or of
the bill." In the case of Bengzon v. Secretary of Justice of the Philippine Islands, the US
Supreme Court characterized an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a specific

appropriation of money, not some general provision of law which happens to be put into an
appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the President may
be able to exercise his power of item veto, must contain "specific appropriations of money" and
notonly "general provisions" which provide for parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an item characterized
by singular correspondence – meaning an allocation of a specified singular amount for a
specified singular purpose, otherwise known as a "line-item." This treatment not only allows the
item to be consistent with its definition as a "specific appropriation of money" but also ensures
that the President may discernibly veto the same. Based on the foregoing formulation, the
existing Calamity Fund, Contingent Fund and the Intelligence Fund, being appropriations which
state a specified amount for a specific purpose, would then be considered as "line-item"
appropriations which are rightfully subject to item veto. Likewise, it must be observed that an
appropriation may be validly apportioned into component percentages or values; however, it is
crucial that each percentage or value must be allocated for its own corresponding purpose for
such component to be considered as a proper line-item. Moreover, as Justice Carpio correctly
pointed out, a valid appropriation may even have several related purposes that are by accounting
and budgeting practice considered as one purpose, e.g., MOOE (maintenance and other operating
expenses), in which case the related purposes shall be deemed sufficiently specific for the
exercise of the President‘s item veto power. Finally, special purpose funds and discretionary
funds would equally square with the constitutional mechanism of item-veto for as long as they
follow the rule on singular correspondence as herein discussed. x x x (Emphasis supplied)33
Accordingly, the item referred to by Section 25(5) of the Constitution is the last and indivisible
purpose of a program in the appropriation law, which is distinct from the expense category or
allotment class. There is no specificity, indeed, either in the Constitution or in the relevant GAAs
that the object of augmentation should be the expense category or allotment class. In the same
vein, the President cannot exercise his veto power over an expense category; he may only veto
the item to which that expense category belongs to.
Further, in Nazareth v. Villar,34 we clarified that there must be an existing item, project or
activity, purpose or object of expenditure with an appropriation to which savings may be
transferred for the purpose of augmentation. Accordingly, so long as there is an item in the GAA
for which Congress had set aside a specified amount of public fund, savings may be transferred
thereto for augmentation purposes. This interpretation is consistent not only with the
Constitution and the GAAs, but also with the degree of flexibility allowed to the Executive
during budget execution in responding to unforeseeable contingencies.
Nonetheless, this modified interpretation does not take away the cave at that only DAP projects
found in the appropriate GAAs may be the subject of augmentation by legally accumulated
savings. Whether or not the 116 DAP-funded projects had appropriation cover and were validly
augmented require factual determination that is not within the scope of the present consolidated
petitions under Rule 65.
4.
Cross-border transfers are constitutionally impermissible
The respondents assail the pronouncement of unconstitutionality of cross-border transfers made

by the President. They submit that Section 25(5), Article VI of the Constitution prohibits only
the transfer of appropriation, not savings. They relate that cross-border transfers have been the
practice in the past, being consistent with the President’s role as the Chief Executive.35
In view of the clarity of the text of Section 25(5), however, the Court stands by its
pronouncement, and will not brook any strained interpretations.
5.
Unprogrammed funds may only be released upon proof that the total revenues exceeded the
target
Based on the 2011, 2012 and 2013 GAAs, the respondents contend that each source of revenue
in the budget proposal must exceed the respective target to authorize release of unprogrammed
funds. Accordingly, the Court’s ruling thereon nullified the intention of the authors of the
unprogrammed fund, and renders useless the special provisions in the relevant GAAs.36
The respondents’ contentions are without merit.
To recall, the respondents justified the use of unprogrammed funds by submitting certifications
from the Bureau of Treasury and the Department of Finance (DOF) regarding the dividends
derived from the shares of stock held by the Government in government-owned and controlled
corporations.37 In the decision, the Court has held that the requirement under the relevant GAAs
should be construed in light of the purpose for which the unprogrammed funds were
denominated as "standby appropriations." Hence, revenue targets should be considered as a
whole, not individually; otherwise, we would be dealing with artificial revenue surpluses. We
have even cautioned that the release of unprogrammed funds based on the respondents’ position
could be unsound fiscal management for disregarding the budget plan and fostering budget
deficits, contrary to the Government’s surplus budget policy.38
While we maintain the position that aggregate revenue collection must first exceed aggregate
revenue target as a pre-requisite to the use of unprogrammed funds, we clarify the respondents’
notion that the release of unprogrammed funds may only occur at the end of the fiscal year.
There must be consistent monitoring as a component of the budget accountability phase of every
agency’s performance in terms of the agency’s budget utilization as provided in Book VI,
Chapter 6, Section 51 and Section 52 of the Administrative Code of 1987,which state:
SECTION 51. Evaluation of Agency Performance.—The President, through the Secretary shall
evaluate on a continuing basis the quantitative and qualitative measures of agency performance
as reflected in the units of work measurement and other indicators of agency performance,
including the standard and actual costs per unit of work.
SECTION 52. Budget Monitoring and Information System.—The Secretary of Budget shall
determine accounting and other items of information, financial or otherwise, needed to monitor
budget performance and to assess effectiveness of agencies’ operations and shall prescribe the
forms, schedule of submission, and other components of reporting systems, including the
maintenance of subsidiary and other records which will enable agencies to accomplish and
submit said information requirements: Provided, that the Commission on Audit shall, in
coordination with the Secretary of Budget, issue rules and regulations that may be applicable
when the reporting requirements affect accounting functions of agencies: Provided, further, that
the applicable rules and regulations shall be issued by the Commission on Audit within a period
of thirty (30) days after the Department of Budget and Management prescribes the reporting
requirements.
Pursuant to the foregoing, the Department of Budget and Management (DBM) and the
Commission on Audit (COA) require agencies under various joint circulars to submit budget and
financial accountability reports (BFAR) on a regular basis,39 one of which is the Quarterly
Report of Income or Quarterly Report of Revenue and Other Receipts.40 On the other hand, as
Justice Carpio points out in his Separate Opinion, the Development Budget Coordination
Committee (DBCC) sets quarterly revenue targets for aspecific fiscal year.41 Since information
on both actual revenue collections and targets are made available every quarter, or at such time
as the DBM may prescribe, actual revenue surplus may be determined accordingly and eleases
from the unprogrammed fund may take place even prior to the end of the fiscal year.42
In fact, the eleventh special provision for unprogrammed funds in the 2011 GAA requires the
DBM to submit quarterly reports stating the details of the use and releases from the
unprogrammed funds, viz:
11. Reportorial Requirement. The DBM shall submit to the House Committee on Appropriations
and the Senate Committee on Finance separate quarterly reports stating the releases from the
Unprogrammed Fund, the amounts released and purposes thereof, and the recipient departments,
bureaus, agencies or offices, GOCCs and GFIs, including the authority under which the funds are
released under Special Provision No. 1 of the Unprogrammed Fund.
Similar provisions are contained in the 2012 and 2013 GAAs.43
However, the Court’s construction of the provision on unprogrammed funds is a statutory, not a
constitutional, interpretation of an ambiguous phrase. Thus, the construction should be given
prospective effect.44
6.
The presumption of good faith stands despite the obiter pronouncement
The remaining concern involves the application of the operative fact doctrine.
The respondents decry the misapplication of the operative fact doctrine, stating:
110. The doctrine of operative fact has nothing to do with the potential liability of persons who
acted pursuant to a then-constitutional statute, order, or practice. They are presumed to have
acted in good faith and the court cannot load the dice, so to speak, by disabling possible defenses
in potential suits against so-called "authors, proponents and implementors." The mere
nullification are still deemed valid on the theory that judicial nullification is a contingent or
unforeseen event.
111. The cases before us are about the statutory and constitutional interpretations of so-called
acts and practices under a government program, DAP. These are not civil, administrative, or
criminal actions against the public officials responsible for DAP, and any statement about bad
faith may be unfairly and maliciously exploited for political ends. At the same time, any negation
of the presumption of good faith, which is the unfortunate implication of paragraphs 3 and 4 of
page 90 of the Decision, violates the constitutional presumption of innocence, and is inconsistent
with the Honorable Court’s recognition that "the implementation of the DAP yielded undeniably
positive results that enhanced the economic welfare of the country."
112. The policy behind the operative fact doctrine is consistent with the idea that regardless of
the nullification of certain acts and practices under the DAP and/or NBC No. 541, it does not
operate to impute bad faith to authors, proponents and implementors who continue to enjoy the
presumption of innocence and regularity in the performance of official functions and duties.
Good faith is presumed, whereas bad faith requires the existence of facts. To hold otherwise
would send a chilling effect to all public officers whether of minimal or significant discretion,
the result of which would be a dangerous paralysis of bureaucratic activity.45 (Emphasis
supplied)
In the speech he delivered on July 14, 2014, President Aquino III also expressed the view that in
applying the doctrine of operative fact, the Court has already presumed the absence of good faith
on the part of the authors, proponents and implementors of the DAP, so that they would have to
prove good faith during trial.46
Hence, in their Motion for Reconsideration, the respondents now urge that the Court should
extend the presumption of good faith in favor of the President and his officials who co-authored,
proposed or implemented the DAP.47
The paragraphs 3 and 4 of page 90 of the Decision alluded to by the respondents read:
Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative
fact does not always apply, and is not always the consequence of every declaration of
constitutional invalidity. It can be invoked only in situations where the nullification of the effects
of what used to be a valid law would result in inequity and injustice; but where no such result
would ensue, the general rule that an unconstitutional law is totally ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the
PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity
of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless
there are concrete findings of good faith in their favor by the proper tribunals determining their
criminal, civil, administrative and other liabilities.48 (Bold underscoring is supplied)
The quoted text of paragraphs 3 and 4 shows that the Court has neither thrown out the
presumption of good faith nor imputed bad faith to the authors, proponents and implementors of
the DAP. The contrary is true, because the Court has still presumed their good faith by pointing
out that "the doctrine of operative fact xxx cannot apply to the authors, proponents and
implementors of the DAP, unless there are concrete findings of good faith in their favor by the
proper tribunals determining their criminal, civil, administrative and other liabilities." Note that
the proper tribunals can make "concrete findings of good faith in their favor" only after a full
hearing of all the parties in any given case, and such a hearing can begin to proceed only after
according all the presumptions, particularly that of good faith, by initially requiring the
complainants, plaintiffs or accusers to first establish their complaints or charges before the
respondent authors, proponents and implementors of the DAP.
It is equally important to stress that the ascertainment of good faith, or the lack of it, and the
determination of whether or not due diligence and prudence were exercised, are questions of
fact.49 The want of good faith is thus better determined by tribunals other than this Court, which
is not a trier of facts.50
For sure, the Court cannot jettison the presumption of good faith in this or in any other
case.1âwphi1 The presumption is a matter of law. It has had a long history. Indeed, good faith
has long been established as a legal principle even in the heydays of the Roman Empire.51In
Soriano v. Marcelo,52 citing Collantes v. Marcelo,53 the Court emphasizes the necessity of the
presumption of good faith, thus:
Well-settled is the rule that good faith is always presumed and the Chapter on Human Relations
of the Civil Code directs every person, inter alia, to observe good faith which springs from the
fountain of good conscience. Specifically, a public officer is presumed to have acted in good
faith in the performance of his duties. Mistakes committed by a public officer are not actionable
absent any clear showing that they were motivated by malice or gross negligence amounting to
bad faith. "Bad faith" does not simply connote bad moral judgment or negligence. There must be
some dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a
sworn duty through some motive or intent or ill will. It partakes of the nature of fraud. It
contemplates a state of mind affirmatively operating with furtive design or some motive of self-
interest or ill will for ulterior purposes.
The law also requires that the public officer’s action caused undue injury to any party, including
the government, or gave any private party unwarranted benefits, advantage or preference in the
discharge of his functions. x x x
The Court has further explained in Philippine Agila Satellite, Inc. v. Trinidad-Lichauco: 54
We do not doubt the existence of the presumptions of "good faith" or "regular performance of
official duty", yet these presumptions are disputable and may be contradicted and overcome by
other evidence. Many civil actions are oriented towards overcoming any number of these
presumptions, and a cause of action can certainly be geared towards such effect. The very
purpose of trial is to allow a party to present evidence to overcome the disputable presumptions
involved. Otherwise, if trial is deemed irrelevant or unnecessary, owing to the perceived
indisputability of the presumptions, the judicial exercise would be relegated to a mere
ascertainment of what presumptions apply in a given case, nothing more. Consequently, the
entire Rules of Court is rendered as excess verbiage, save perhaps for the provisions laying down
the legal presumptions.
Relevantly, the authors, proponents and implementors of the DAP, being public officers, further
enjoy the presumption of regularity in the performance of their functions. This presumption is
necessary because they are clothed with some part of the sovereignty of the State, and because
they act in the interest of the public as required by law.55 However, the presumption may be
disputed.56
At any rate, the Court has agreed during its deliberations to extend to the proponents and
implementors of the DAP the benefit of the doctrine of operative fact. This is because they had
nothing to do at all with the adoption of the invalid acts and practices.
7.
The PAPs under the DAP remain effective under the operative fact doctrine
As a general rule, the nullification of an unconstitutional law or act carries with it the illegality of
its effects. However, in cases where nullification of the effects will result in inequity and
injustice, the operative fact doctrine may apply.57 In so ruling, the Court has essentially
recognized the impact on the beneficiaries and the country as a whole if its ruling would pave the
way for the nullification of the P144.378 Billions58 worth of infrastructure projects, social and
economic services funded through the DAP. Bearing in mind the disastrous impact of nullifying
these projects by virtue alone of the invalidation of certain acts and practices under the DAP, the
Court has upheld the efficacy of such DAP-funded projects by applying the operative fact
doctrine. For this reason, we cannot sustain the Motion for Partial Reconsideration of the
petitioners in G.R. No. 209442.
IN VIEW OF THE FOREGOING, and SUBJECT TO THE FOREGOING CLARIFICATIONS,

the Court PARTIALLY GRANTS the Motion for Reconsideration filed by the respondents, and
DENIES the Motion for Partial Reconsideration filed by the petitioners in G.R. No. 209442 for
lack of merit.
ACCORDINGLY, the dispositive portion of the Decision promulgated on July 1, 2014 is hereby
MODIFIED as follows:
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition;
and DECLARES the following acts and practices under the Disbursement Acceleration Program,
National Budget Circular No. 541 and related executive issuances UNCONSTITUTIONAL for
being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of
separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the
declaration of the withdrawn unobligated allotments and unreleased appropriations as
savings prior to the end of the fiscal year without complying with the statutory definition
of savings contained in the General Appropriations Acts; and
(b) The cross-border transfers of the savings of the Executive to augment the
appropriations of other offices outside the Executive.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a
certification by the National Treasurer that the revenue collections exceeded the revenue targets
for non-compliance with the conditions provided in the relevant General Appropriations Acts.
SO ORDERED.
LUACAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice
I join the concurring & dissenting

See separate opinion
opinion of J. Del Castillo
ANTONIO T. CARPIO
Associate Justice
Associate Justice
No part (Out due to close relation with

J Brion left his vote; see his Separate
one of the counsels of a party
Opinion (Qualified
concurrence)ARTURO D. BRION**
CASTRO*
Associate Justice
Associate Justice
See concurring and dissenting opinion

DIOSDADO M. PERALTA
Associate Justice
Associate Justice

See concurring opinion

Associate Justice
Associate Justice
FRANCIS H. JARDELEZA***
Associate Justice
CERTIFICATION

Chief Justice
Footnotes
* No part
** On leave
*** No part
1 Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935 and 193036,
December 7, 2010, 637 SCRA 78, 177.
2 Rollo (G.R. No. 209287), pp. 1431-1482.
3 Id. at 1496-1520.
4 Id. at 1135-1241.
5 Id. at 1434-1435.
6 Id
7 Id. at 1435-1438.
8 Id. 1444-1449.
9 Id. at 1432.
10 Id. at 1496.
11 Id. at 1435.
12 Nos. L-6355-56, 93 Phil. 696 (1953).
13 Id. at 700-702 (bold underscoring is supplied for emphasis).
14 Rollo (G.R. No. 209287), pp. 1203-1204.
15 Id. at 1208.
16 Id.
17 Brillantes, Jr. v. Commission on Elections, G.R. No. 163193, June 15, 2004, 432
SCRA 269, 307.
19 Id. at 1449.
20 Decision, pp. 60-67.
21 Id. at 62.
22 Id. at 67.
23 Bengzon v. Drilon, G.R. No. 103524, April 15, 1992, 208 SCRA 133.
24 Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. Nos. 157870, 158633
and 161658, November 3, 2008, 570 SCRA 410, 422-423.
25 No. L-32717, November 26, 1970, 36 SCRA 228, 234-235.
26 G.R. No. 192935 and 193036, December 7, 2010, 637 SCRA 78.
27 Id. at 137-138.
28 Supra note 7, at 1450-1451.
29 Decision, p. 36.
30 Id at 90.
31 Respondents’ Motion for Reconsideration, p. 21.
32 G.R. No. 208566, November 19, 2013, 710 SCRA 1.
33 Id. at 126-127.
34 G.R. No. 188635, January 29, 2013, 689 SCRA 385.
35 Supra note 7, at 1455-1459.
36 Id. at 1459-1465.
37 Rollo (G.R. No. 209155), pp. 327, 337-339.
38 Supra note 14, at 1231-1232.
39 http://budgetngbayan.com/budget-101/budget-accountability/#BAR (Visited on
January 28, 2015).
40 See also the DBM and COA’s Joint Circular No. 2013-1, March 15, 2013 and Joint
Circular No. 2014-1, July 2, 2014.
41 J. Carpio, Separate Opinion, p. 11.
42 In this regard, the ninth and tenth special provisions for unprogrammed funds in the
2011 GAA also provide the following: 9. Use of Income. In case of deficiency in the
appropriations for the following business-type activities, departments, bureaus, offices
and agencies enumerated hereunder and other agencies as may be determined by the
Permanent Committee are hereby authorized to use their respective income collected
during the year. Said income shall be deposited with the National Treasury, chargeable
against Purpose 4 - General Fund Adjustments, to be used exclusively for the purposes
indicated herein or such other purposes authorized by the Permanent Committee, as may
be required until the end of the year, subject to the submission of a Special Budget
pursuant to Section 35, Chapter 5, Book VI of E. O. No. 292, s. 1987: x x x x
Implementation of this section shall be subject to guidelines to be issued by the DBM. 10.
Use of Excess Income. Agencies collecting fees and charges as shown in the FY 2011
Budget of Expenditures and Sources of Financing (BESF) may be allowed to use their
income realized and deposited with the National Treasury, in excess of the collection
targets presented in the BESF, chargeable against Purpose 4 - General Fund Adjustments,
to augment their respective current appropriations, subject to the submission of a Special
Budget pursuant to Section 35, Chapter 5, Book VI of E.O. No. 292: PROVIDED, That
said income shall not be used to augment Personal Services appropriations including
payment of discretionary and representation expenses. Implementation of this section
shall be subject to guidelines jointly issued by the DBM and DOFThe 2012 and 2013
GAAs also contain similar provisions.
43 2012 GAA provides: 8. Reportorial Requirement. The DBM shall submit, either in
printed form or by way of electronic document, to the House Committee on
Appropriations and the Senate Committee on Finance separate quarterly reports stating
the releases from the Unprogrammed Fund, the amounts released and the purposes
thereof, and the recipient departments, bureaus, agencies or offices, including GOCCs
and GFIs, as well as the authority under which the funds are released under Special
Provision No. 1 of the Unprogrammed Fund. 2013 GAA reads: 8. Reportorial
Requirement. The DBM shall submit, either in printed form or by way of electronic
document, to the House Committee on Appropriations and the Senate Committee on
Finance separate quarterly reports stating the releases from the Unprogrammed Fund, the
amounts released and the purposes thereof, and the recipient departments, bureaus, and
offices, including GOCCs and GFIs, as well as the authority under which the funds are
released under Special Provision No. 1 of the Unprogrammed Fund.
44 Commission of Internal Revenue v. San Roque Power Corporation, G.R. Nos. 187485,
196113 and 197156, 690 SCRA 336.
45 Supra note 7, at 1466-1467.
46 http://www.gov.ph/2014/07/14/english-national-address-of-president-aquino-on-the-
supreme-courts-decision-on-dap/ Last visited on November 13, 2014.
49 Philippine National Bank v. Heirs of Estanislao Militar, G.R. No. 164801 and 165165,
June 30, 2006, 494 SCRA 308, 319.
50 Id.
51 See Good Faith in European Contract Law, R. Zimmermann, S. Whittaker, eds.,

Cambridge University Press, 2000, p. 16;
http://catdir.loc.gov/catdir/samples/cam032/99037679.pdf (Visited on November 24,
2014).
52 G.R. No. 160772, July 13, 2009, 592 SCRA 394.
53 G.R. Nos. 167006-07, 14 August 2007, 530 SCRA 142.
54 G.R. No. 142362, May 3, 2006, 489 SCRA 22.
55 Words And Phrases, Vol. 35, p. 356, citing Bender v. Cushing, 14 Ohio Dec. 65, 70.
56 Section 3(l), Rule 131, Rules of Court.
57 Id.
58 http://www.gov.ph/2014/07/24/dap-presentation-of-secretary-abad-to-the-senate-of-
the-philippines/(November 27, 2014)

SUPREME COURT
Manila
EN BANC
G.R. No. 196418 February 10, 2015
TECHNICAL EDUCATION AND SKILLS DEVELOPMENT AUTHORITY (TESDA),

Petitioner,
vs.
THE COMMISSION ON AUDIT; CHAIRMAN REYNALDO A. VILLAR;
COMMISSIONER JUANITO G. ESPINO, JR.; and COMMISSIONER EVELYN R. SAN
BUENA VENTURA, Respondents.
DECISION
BERSAMIN, J.:
Being assailed is the March 23, 2010 decision issued in COA Decision No. 2010-039,1 whereby
the Commission on Audit (COA) affirmed the findings of the COA Legal and Adjudication
Office (LAO) as regards the issuance of Audit Observation Memorandum (AOM) No. 04-005
(101) dated January 26, 20042 disallowing the payment by petitioner Technical Education and
Skills Development Authority (TESDA) of the healthcare maintenance allowance of P5,000.00
to covered TESDA employees for the year 2003.
Antecedents
The TESDA, an instrumentality of the Government established under Republic Act No. 7796, is
an attached agency of the Department of Labor and Employment (DOLE). In view of the
inadequate policy on basic health and safety conditions of work experienced by government
personnel, then DOLE Secretary Patricia Sto. Tomas issued Administrative Order (AO) No. 430,
series of 2003, authorizing the payment of healthcare maintenance allowance of P5,000.00 to all
officials and employees of the DOLE, including its bureaus and attached agencies.3 AO No. 430
was purportedly based on Civil Service Commission (CSC) Memorandum Circular (MC) No. 33,
series of 1997,4 and Section 34 of the General Provisions of the 2003 General Appropriations
Act.5
Upon post-audit, COA State Auditor IV Rosemarie A. Valenzuela issued AOM No. 04-005 on
January 26,2004, and later endorsed the matter to the COA Director of the LAO-National for
appropriate legal action. AOM No. 04-005 stated in part:
2. The basis of payment made by management was CSC Memorandum Circular No. 33
series of 1997 and Section 34 of the General Provisions of the 2003 General
Appropriations Act (GAA). Following these provisions, the Department of Labor and
Employment issued DOLE Administrative Order No 430, series of 2003 authorizing
payment of said medical allowance to all its personnel including those of its bureau and
attached agencies at P5,000.00 each and pro rata equivalent for those employees who
have less than four (4) months continuous service.
3. CSC Director Imelda Laceras of Region VII, in her letter to DOLE Region VII
Auditor, Ms. Damiana Pelino, informed the latter that there are no existing guidelines
authorizing the grant of Health Care Maintenance Allowance and medical Allowance to
all government officials and employees. In the absence therefore of specific legal
authority, payment of said benefit cannot be allowed under existing rules. Hence, DOLE
Administrative Order No. 430, series of 2003 is clearly without legal basis.6
Atty. Rebecca Mislang, Officer In-Charge of the COA LAO-National, subsequently issued
Notice of Disallowance (ND) No. 2006-015 dated May 26, 2006,7 addressed to then TESDA
Director General Augusto Syjuco, indicating that the payment of the allowance had no legal
basis, it being contrary to Republic Act No. 6758 (Salary Standardization Law of 1989). ND No.
2006-015 identified the following persons as liable for the disallowance, namely:
1. Dante V. Liban, Director General, for allowing the payment of said allowance;
2. Sonia Lipio, Chief, HRMO, for having direct supervision over the transaction;
3. Raul K. Tanchico, OIC, Asst. Director OCSA, for approving the transaction;
4. Cariza A. Dacuma, Chief Accountant, for certifying to the completeness and propriety
of the transaction; and
5. All TESDA officials and employees per attached payroll as recipients.8
The TESDA filed an appeal before the COA Commission Proper,9 assailing the disallowance by
the LAO-National.
However, the COA Commission Proper promulgated the now assailed decision dated March 23,
2010,10 denying the appeal for lack of merit.
Hence, this petition.
Issues
The TESDA insists that: RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED
DECISION DISALLOWING THE PETITIONER’S PAYMENT OF HEALTH CARE
MAINTENANCE ALLOWANCE TO ITS MAIN OFFICE EMPLOYEES.
RESPONDENTS GRAVELY ERRED IN HOLDING THE AUTHORIZING OFFICERS OF

PETITIONER PERSONALLY LIABLE FOR THE TOTAL DISALLOWED PAYMENT IN
THE AMOUNT OF TWO MILLION TWO HUNDRED SEVEN THOUSAND PESOS
(P2,207,000.00).11
The TESDA maintains that there was sufficient legal basis for the release of the healthcare
maintenance allowance of P5,000.00 to its employees; that such payment was only in
compliance with the DOLE directive issued pursuant to MC No. 33 to afford all government
employees a health program that would include hospitalization services and/or annual mental,
medical-physical examinations; and that such payment was also based on the authority granted
by the 2003 GAA on the giving of personnel benefits to be charged against the corresponding
fund from which basic salaries were drawn.
In contrast, the COA explains that MC No. 33 referred to the institutionalization of a health care
program in the Government, and did not suggest the payment of direct allowances to the
employees of the Government; that the TESDA should not have relied on the provisions of the
GAA because the same were not self-executory; and that, as such, the healthcare maintenance
allowance lacked statutory basis and must be disallowed.
Otherwise put, did the COA commit grave abuse of discretion in issuing ND No. 2006-015
pursuant to AOM No. 04-005?
Ruling of the Court
To better appreciate the dispute between the parties, a review of the legal antecedents is in order.
On December 18, 1997, the CSC issued Resolution No. 97-4684 to provide an adequate policy
on basic health and safety conditions of work in the Government. The resolution relevantly
provides:
NOW THEREFORE, the Commission resolved, as it hereby resolves to mandate the following
policies as a way of reinventing the workplace of public sector employees:
1. All government offices shall provide the following:
a. Health Health program for

Program for employees shall
Government include any or all of
Employees the following:
1. Hospitalization
services
2. Annual mental,
medical-physical
examinations
Subsequently, the CSC issued MC No. 33, which was a reiteration of Resolution No. 97-4684,
concerning the policy on the working conditions at the workplace. In its pertinent part, MC No.
33 provides thus:12
The Civil Service Commission, in partnership and in consultation with the Council of Personnel
Officers and Human Resource Management Officers, recognizes the need to institutionalize
viable programs to improve working conditions in the government.
Pursuant to Resolution No. 97-4684 dated December 18, 1997, the CSC promulgates and adopts
the following policies:
1. All government offices shall provide the following:
a. Health Health program for

Program for employees shall
Government include any or all of
Employees the following:
1. Hospitalization
services
2. Annual mental,
medical-physical
examinations
On the basis of the issuances by the CSC, the DOLE issued AO No 430 to authorize the release
of the challenged healthcare maintenance allowance of P5,000.00 to all eligible DOLE
employees, including the TESDA’s workforce, to wit:
In the interest of the service and in recognition of the DOLE officials’ and employees’ efforts to
further improve delivery of services to clients and of the need to enhance the quality of their
worklife, a Healthcare Maintenance Allowance of Five Thousand Pesos (P5,000.00) is hereby
authorized to all DOLE employees entitled to such benefit pursuant to CSC Memorandum
Circular No. 33, S. 1997 and Section 34 of the General Provisions of the 2003 General
Appropriations Act (GAA), subject to the following guidelines:13
In the context of the foregoing, we uphold the disallowance by the COA of the payment of the
P5,000.00 as healthcare maintenance allowance. The COA did not act without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction because
it properly exercised its powers and discretion in disallowing the payment of the P5,000.00 as
healthcare maintenance allowance.
The COA is endowed with latitude to determine, prevent, and disallow irregular, unnecessary,
excessive, extravagant, or unconscionable expenditures of government funds. It has the power to
ascertain whether public funds were utilized for the purpose for which they had been intended by
law. The Constitution has made the COA "the guardian of public funds, vesting it with broad
powers over all accounts pertaining to government revenue and expenditures and the uses of
public funds and property, including the exclusive authority to define the scope of its audit and
examination, establish the techniques and methods for such review, and promulgate accounting
and auditing rules and regulations."14 Thus, the COA is generally accorded complete discretion
in the exercise of its constitutional duty and responsibility to examine and audit expenditures of
public funds, particularly those which are perceptibly beyond what is sanctioned by law.
Verily, the Court has sustained the decisions of administrative authorities like the COA as a
matter of general policy, not only on the basis of the doctrine of separation of powers but also
upon the recognition that such administrative authorities held the expertise as to the laws they are
entrusted to enforce.15 The Court has accorded not only respect but also finality to their findings
especially when their decisions are not tainted with unfairness or arbitrariness that would amount
to grave abuse of discretion.16 Only when the COA acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, may this Court
entertain and grant a petition for certiorari brought to assail its actions.17 However, we find no
grave abuse of discretion on the part of the COA in issuing the assailed decision.
MC No. 33 dealt with a healthcare program for government employees. A program is ordinarily
understood as a system in place that will draw the desired benefits over a period of time. Its
dictionary meaning includes "a plan of procedure: a schedule or system under which action may
be taken toward a desired goal."18 Ostensibly, MC No. 33 did not intend the health care program
to be a single activity or endowment to achieve a fleeting goal, for it rightfully concerned the
institutionalization of a system of healthcare for government employees. A careful perusal of MC
No. 33 and its precursor reveals the unequivocal intent to afford government employees a
sustainable health care program instead of an intermittent healthcare provision. MC No. 33
delineated the policy framework for working conditions at the workplace, which, aside from the
health care program, included adequate office ventilation and lighting, clean and adequate
restroom facilities, potable drinking water, first aid kit and facilities, and hazard insurance. The
irrefutable attributes of such framework were perpetuity and sustainability.
The TESDA posits that giving the health care maintenance allowance of P5,000.00 was valid
because MC No. 33 did not exclude other types of health-related services that were helpful in the
furtherance of the government offices’ health program; and that the payment of the health care
maintenance allowance was a very practical compliance with MC No. 33 because such payment
would allow a measure of flexibility on the part of the employee to choose the physician who
would undertake the examination of the employee.
The position of the TESDA is untenable.
MC No. 33 and its precursor were worded in a plain and straightforward manner to the effect that
the "(h)ealth program for employees shall include any or all of the following: 1) Hospitalization
services, and 2) Annual mental, medical-physical examinations." Whatever latitude was afforded
to a government agency extended only to the determination of which services to include in the
program, not to the choice of an alternative to such health program or to authorizing the
conversion of the benefits into cash. The giving of health care maintenance allowance of
P5,000.00 to the TESDA’s employees was not among any of the hospitalization services or
examinations listed in the circular.
The TESDA also relied on Section 34 of the GAA for 2003 (Republic Act No. 9206), viz:
Section 34. Funding of Personnel Benefits. The personnel benefits costs of government officials
and employees shall be charged against the funds from which their compensations are paid. All
authorized supplemental or additional compensation, fringe benefits and other personal services
costs of officials and employees whose salaries are drawn from special accounts or special funds,
such as salary increases, step increment for length of service, incentive and service fees,
commutation of vacation and sick leaves, retirement and life insurance premiums, compensation
insurance premiums, health insurance premiums, Home Development Mutual Fund (HDMF)
contributions, hospitalization and medical benefits, scholarship and educational benefits, training
and seminar expenses, all kinds of allowances, whether commutable or reimbursable, in cash or
in kind, and other personnel benefits and privileges authorized by law, including the payment of
retirement gratuities, separation pay and terminal leave benefits, shall similarly be charged
against the corresponding fund from which their basic salaries are drawn and in no case shall
such personnel benefits costs be charged against the General Fund of the National Government.
Officials and employees on detail with other offices, including the representatives and support
personnel of auditing units assigned to serve other offices or agencies, shall be paid their salaries,
emoluments, allowances and the foregoing supplemental compensation, fringe benefits and other
personal services costs from the appropriations of their parent agencies, and in no case shall such
be charged against the appropriations of the agencies where they are assigned or detailed, except
when authorized by law. (Bold underscoring supplied for emphasis)
The reliance is misplaced. Section 34 only reiterated the rule that the personnel benefits costs of
government officials and employees should be charged against the funds from which their
compensations are paid. The provision was neither a source of right nor an authority to hastily
fund any or all personnel benefits without the appropriation being made by law.
It bears reminding that pursuant to Article VI Section 29 (1) of the 1987 Constitution, no money
shall be paid out of the Treasury except in pursuance of an appropriation made by law. Hence,
the GAA should be purposeful, deliberate, and precise in its contents and stipulations. Also, the
COA was correct when it held that the provisions of the GAA were not self-executory. This
meant that the execution of the GAA was still subject to a program of expenditure to be
approved by the President, and such approved program of expenditure was the basis for the
release of funds. For that matter, Section 34, Chapter 5, Book VI of the Administrative Code
(Executive Order No. 292) states that –
Section 34. Program of Expenditure - The Secretary of Budget shall recommend to the President
the year’s program of expenditure for each agency of the government on the basis of authorized
appropriations. The approved expenditure program shall constitute the basis for fund release
during the fiscal period, subject to such policies, rules and regulations as may be approved by the
President.
The rules on National Government Budgeting as prescribed by the Administrative Code are not
idle or empty exercises.1âwphi1 The mere approval by Congress of the GAA does not instantly
make the funds available for spending by the Executive Department. The funds authorized for
disbursement under the GAA are usually still to be collected during the fiscal year. The revenue
collections of the Government, mainly from taxes, may fall short of the approved budget, as has
been the normal occurrence almost every year.19 Hence, it is important that the release of funds
be duly authorized, identified, or sanctioned to avert putting the legitimate programs, projects,
and activities of the Government in fiscal jeopardy.
Section 5 of Presidential Decree No. 1597 (Further Rationalizing the System of Compensation
and Position Classification in the National Government) states that the authority to approve the
grant of allowances, honoraria, and other fringe benefits to government employees, regardless of
whether such endowment is payable by their respective offices or by other agencies of the
Government, is vested in the President.20 As such, the precipitous release and payment of the
healthcare maintenance allowance benefits without any authorization from the Office of the
President is without basis and should be rightfully disallowed.
The Court agrees with the COA decision in holding that the recipients of the healthcare
maintenance allowance benefits who received the allowance of P5,000.00 in good faith need not
refund the sum received. The recipients accepted the benefits honestly believing that they were
receiving what they were entitled to under the law. Similarly, the Court holds that the TESDA
officials who granted the allowance to the covered personnel acted in good faith in the honest
belief that there was lawful basis for such grant. In view of these considerations, the Court
declares that the disallowed benefits approved and received in good faith need not be reimbursed
to the Government. This finds support in the consistent pronouncements of the Court, such as
that issued in De Jesus v. Commission on Audit,21 to wit:
Nevertheless, our pronouncement in Blaquera v. Alcala supports petitioners’ position on the

refund of the benefits they received. In Blaquera, the officials and employees of several
government departments and agencies were paid incentive benefits which the COA disallowed
on the ground that Administrative Order No. 29 dated 19 January 1993 prohibited payment of
these benefits. While the Court sustained the COA on the disallowance, it nevertheless declared
that:
Considering, however, that all the parties here acted in good faith, we cannot countenance the
refund of subject incentive benefits for the year 1992, which amounts the petitioners have
already received. Indeed, no indicia of bad faith can be detected under the attendant facts and
circumstances. The officials and chiefs of offices concerned disbursed such incentive benefits in
the honest belief that the amounts given were due to the recipients and the latter accepted the
same with gratitude, confident that they richly deserve such benefits.
This ruling in Blaquera applies to the instant case. Petitioners here received the additional
allowances and bonuses in good faith under the honest belief that LWUA Board Resolution No.
313 authorized such payment. At the time petitioners received the additional allowances and
bonuses, the Court had not yet decided Baybay Water District, Petitioners had no knowledge that
such payment was without legal basis. Thus, being in good faith, petitioners need not refund the
allowances and bonuses they received but disallowed by the COA.
WHEREFORE, we DISMISS the petition for certiorari; and AFFIRM Decision No. 2010-039
dated March 23, 2010 of the Commission on Audit subject to the MODIFICATION that all the
officials of the petitioner who approved and all the employees of the petitioner who received the
healthcare maintenance allowance of P5,000.00 need not refund the same.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

Chief Justice





MARIO VICTOR MARVIC F.

LEONEN
Associate Justice
Associate Justice
Associate Justice
CERTIFICATION
Chief Justice
Footnotes
* On leave.
1 Rollo, pp. 27-31.
2 Id. at 36-37.
3 Id. at 11.
4 Id. at 34-35.
5 Id. at 38.
6 Id. at 36-37.
7 Id. at 40-41.
8 Id.
9 Id. at 42-45.
10 Supra note 1.
11 Rollo, p. 13.
12 Id. at 34.
13 Id. at 32.
14 Nazareth v. Villar, G.R. No. 188635, January 29, 2013, 689 SCRA 385, 407; citing
Yap v. Commission on Audit, G.R. No. 158562, 23 April 2010, 619 SCRA 154, 167-168.
15 Id., citing Cuerdo v. Commission on Audit, No. L-84592, October 27, 1988, 166
SCRA 657, 661; Tagum Doctors Enterprises v. Apsay, No.L- 81188, August 30, 1988,
165 SCRA 154, 155-156.
16 Id., citing Sanchez v. Commission on Audit, G.R. No. 127545, April 23, 2008, 552
SCRA 471, 489.
17 Id., citing Reyes v. Commission on Audit, G.R. No. 125129, March 29, 1999, 305
SCRA 512, 517.
18 Webster’s Third New International Dictionary, 1993.
19 National Electrification Administration v. Commission on Audit, G. R. No. 143481,

February 15, 2002, 377 SCRA 223, 231.
20 Section 5. Allowances, Honoraria, and Other Fringe Benefits. Allowances, honoraria

and other fringe benefits which may be granted to government employees, whether
payable by their respective offices or by other agencies of government, shall be subject to
the approval of the President upon recommendation of the Commissioner of the Budget.
For this purpose, the Budget Commission shall review on a continuing basis and shall
prepare, for the consideration and approval of the President, policies and levels of
allowances and other fringe benefits applicable to government personnel, including
honoraria or other forms of compensation for participation in projects which are
authorized to pay additional compensation.
21 G.R. No. 149154, June 10, 2003, 403 SCRA 666, 676-677.
EN BANC
G.R. No. 207105, November 10, 2015
ARSENIO A. AGUSTIN, Petitioner, v. COMMISSION ON ELECTIONS AND

SALVADOR S. PILLOS, Respondent.
DECISION
BERSAMIN, J.:
A person of dual citizenship is disqualified from running for a public office in the Philippines.
The Case
The petitioner seeks to annul and set aside the adverse resolution issued on April 23, 2013 in
SPA No. 13-023 (DC),1 whereby the Commission on Elections (COMELEC) En Banc
disposed: chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the Motion for Reconsideration of Petitioner Stewart D.

De La Cruz in SPA No. 13-024 (DC) is denied for lack of merit. On the other hand, the Motion
for Reconsideration of Petitioner Salvador S. Pillos in SPA No. 13-023 (DC) is granted;
consequently, the Certificate of Candidacy of Respondent Arsenio A. Agustin is hereby
CANCELLED and DENIED DUE COURSE.
SO ORDERED.2
cralawlawlibrary
ChanRoblesVirtualawlibrary
Antecedents
In 1997, the petitioner was naturalized as a citizen of the United States of America (USA).3 On
October 5, 2012,4 he filed his certificate of candidacy (CoC) for the position of Mayor of the
Municipality of Marcos, Ilocos Norte to be contested in the May 13, 2013 local elections.5 As the
official candidate of the Nacionalista Party,6 he declared in his CoC that he was eligible for the
office he was seeking to be elected to; that he was a natural born Filipino citizen; and that he had
been a resident of the Municipality of Marcos, Ilocos Norte for 25 years.7
On October 10, 2012, respondent Salvador S. Pillos, a rival mayoralty candidate, filed in the
COMELEC a Petition To Deny Due Course and/or to Cancel the Certificate of Candidacy of
Arsenio A. Agustin, docketed as SPA No. 13-023 (DC),8 alleging that the petitioner had made a
material misrepresentation in his CoC by stating that he had been a resident of the Municipality
of Marcos for 25 years despite having registered as a voter therein only on May 31, 2012. The
petition stated the sole ground thuswise: chanRoblesvirtualLawlibrary
THE DECLARATION UNDER OATH MADE BY THE RESPONDENT THAT HE IS

ELIGIBLE FOR THE OFFICE OR SEEK TO BE ELECTED TO (sic) CONSTITUTES
MATERIAL MISREPRESENTATION FOR THE TRUTH OF THE MATTER (sic) HE HAS
NOT RESIDED AS REQUIRED BY LAW FOR A PERIOD OF ONE YEAR IN THE
LOCALITY HE SEEKS TO BE ELECTED.9 cralawlawlibrary
and prayed, viz.: chanRoblesv irtualLawlibrary
WHEREFORE, it is respectfully prayed before this Honorable Commission, to issue an order to

immediately deny due course and or to cancel the certificate of candidacy of respondent Arsenio
A. Agustin.
Other reliefs just and equitable are likewise prayed of (sic).10 cralawlawlibrary
In his answer, the petitioner countered that the one-year requirement referred to residency, not to
voter registration; that residency was not dependent on citizenship, such that his travel to Hawaii
for business purposes did not violate the residency requirement pursuant to prevailing
jurisprudence; and that as regards citizenship, he attached a copy of his Affidavit of Renunciation
of U.S./American Citizenship executed on October 2, 2012.11
On January 28, 2013, the COMELEC Second Division issued its omnibus resolution,12
pertinently holding: chanRob lesvirtualLawlibrary
As can be clearly gathered from the Velasco case, a candidate's status as a registered voter is a
material fact which falls under the same classification as one's citizenship or residence. While
they are under the same classification as referring to a candidate's qualification for elective
office, the requirements are different. The requirement that a candidate must be a registered voter
does not carry with it the requirement that he must be so one year before the elections because
this refers to the residency qualification.
On this score, it could not be said that respondents falsely represented the length of their
residence in the municipality simply because they became registered voters thereof only fairly
recently. As far as registration as a voter is concerned, it should suffice that they are duly
registered upon the filing of their COCs or within the period prescribed by law for such
registration.
Anent petitioner['] allegations that respondents were unable to vote because they are residents of
other countries, the records are bereft of any evidence that would substantiate this. It is a
fundamental rule that he who alleges, not he who denies, must prove. Mere, petitioners have not
adduced a single shred of competent evidence that respondents were actually residents or citizens
of other countries that is why they were unable to vote.
WHEREFORE, in view of the foregoing, the petitions are hereby DENIED for lack of merit.
SO ORDERED.13
cralawlawlibrary
ChanRoblesVirtualawlibrary
On February 12, 2013, Pillos moved for the reconsideration of the January 28, 2013 resolution
with the COMELEC En Banc.14 He underscored in his motion that the certification issued by the
Bureau of Immigration reflected that the petitioner had voluntarily declared in his travel
documents that he was a citizen of the USA; that when he travelled to Hawaii, USA on October
6, 2012, he still used his USA passport despite his renunciation of his USA citizenship on
October 2, 2012 and after filing his CoC on October 5, 2012, in which he declared that he was a
resident of the Municipality of Marcos, Ilocos Norte; and that the petitioner's declaration of his
eligibility in his CoC constituted material misrepresentation because of his failure to meet the
citizenship and residency requirements.
The petitioner opposed the motion for reconsideration.15
On April 23, 2013, the COMELEC En Banc issued its assailed resolution cancelling and denying
due course to the petitioner's CoC, observing as follows: chanRoblesvirtualLawlibrary
Having admitted his dual citizenship, Agustin had the burden of proving through his evidence
that he complied with the statutory requirements imposed upon dual citizens provided under
Republic Act 9225, particularly Section 3 and 5(2) thereof, to wit: chanRob lesvirtualLawlibrary
xxxx
While Agustin presented a copy of his Affidavit of Renunciation, he failed to furnish this
Commission a copy of his Oath of Allegiance. Noteworthy is the fact, that in Agustin's Affidavit
of Renunciation, it was stated that his Oath of Allegiance is attached as Annex "B"; however,
said attachment has not been made available for the perusal of this Commission. Having failed to
sufficiently show that he complied with the provisions of RA 9225, Agustin's COC must be
cancelled and/or denied due course. Consequently, the Motion for Reconsideration is only
granted as against Respondent Agustin.16
cralawlawlibrary
ChanRoblesV irtualawlibrary
On May 3, 2013, the petitioner filed a Verified Urgent Motion for Reconsideration with Leave of
Court.17 He attached thereto copies of the Order of Approval dated February 12, 201218 and his
Oath of Allegiance dated March 9, 2012,19 both issued by the Consulate General of the
Philippines in Honolulu, Hawaii. He further attached certifications issued by Election Officers in
Ilocos Norte attesting that the documents had been received by the COMELEC and retained in
its files. He explained that the documents were not presented during the course of the
proceedings because the sole issue raised by Pillos' Petition to Deny Due Course and/or to
Cancel Certificate of Candidacy had involved only his (petitioner) compliance with the one-year
residency requirement.
Pillos submitted a Motion for Issuance of Writ of Execution and Comment on the Verified Motion
for Reconsideration with Leave of Court on May 8, 2013,20 praying that a writ of execution be
issued to implement the cancellation of the petitioner's COC.
On election day, May 13, 2013, the name of the petitioner remained in the ballot. He was later on
proclaimed as the duly elected Municipal Mayor of Marcos, Ilocos Norte for obtaining 5,020
votes,21 the highest among the contending parties.
Sensing that the 30-day period within which a petition for certiorari should be filed in the
Supreme Court was about to expire, the petitioner filed on May 24, 2013 an Urgent Motion to
Withdraw Verified Urgent Motion for Reconsideration with Leave of Court dated May 3, 2013.22
On May 28, 2013, the petitioner thus instituted this case, alleging grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the COMELEC En Banc based on the
following grounds: chanRo blesvirtualLawlibrary
a. The assailed En Banc Resolution was promulgated in gross violation of

Petitioner's guaranteed Constitutional Right to Due Process and to be informed of
the facts and the law on which the same was based; and
b. The grave erroneous appreciation of the facts, law, and the evidence of the case.23
cralawlawlibrary
Meanwhile, on June 18, 2013, the COMELEC En Banc, pointing out that the filing of a motion
for reconsideration of an en banc resolution was not allowed under Rule 13 of the 1993
COMELEC Rules of Procedure; and that, accordingly, the April 23, 2013 resolution was deemed
final and executory pursuant to Section 8, paragraph 2 of COMELEC Resolution No. 9523,
issued the writ of execution.24
On July 16, 2013, the Court required the parties to observe the status quo prevailing before the
issuance of the COMELEC En Banc resolution dated April 23, 2013.25 cralawred
Issues
The core issue involves the eligibility of the petitioner as a candidate for the position of Mayor of
the Municipality of Marcos, Ilocos Norte.
A secondary issue concerns the propriety of Pillos' claim as the rightful occupant of the contested
elective position.
Ruling
The Court finds and declares that the petitioner made no material misrepresentation in his CoC;
hence, there is no legal or factual basis for the cancellation of the CoC. Even so, he was
disqualified to run as Mayor of the Municipality of Marcos, Ilocos Norte for being a dual citizen.
With his disqualification having been determined and pronounced by final judgment before the
elections, the votes cast in his favor should not be counted. Accordingly, his rival, respondent
Pillos, should be proclaimed duly elected Mayor for obtaining the highest number of votes in the
elections.
1.
Administrative due process was observed
Before anything more, let us deal with the petitioner's insistence that the COMELEC En Banc
gravely abused its discretion in resolving Pillos' motion for reconsideration based on a ground
that was neither the basis of nor raised in the Petition To Deny Due Course and/or to Cancel the
Certificate of Candidacy of Arsenio A. Agustin; that the non-presentation of his Oath of
Allegiance should not be fatal to his constitutional right to run for public office especially
because the sole ground for Pillos' petition in the COMELEC had dealt only with the residency
requirement; that Pillos could have included citizenship as a ground by the amendment of his
petition, but he did not move for that purpose; that he duly complied with the requirements for
the re-acquisition of his Philippine citizenship pursuant to Republic Act No. 9225, and the proof
of the re-acquisition had been submitted to the Election Officers in Ilocos Norte; and that the
COMELEC, by not at least holding a clarificatory hearing to ascertain and confirm such matters,
violated his right to due process by denying to him the opportunity to prepare for his defense.
The petitioner's insistence lacks merit.
We note that the petitioner's citizenship came to the fore because he himself asserted his
Philippine citizenship in his answer to Pillos' petition to cancel his CoC in order to bolster his
allegation of compliance with the one-year residency requirement. As such, he could not credibly
complain about being denied due process, especially considering that he had been able to file an
opposition to Pillos' motion for reconsideration. It is worthy to state that the observance of due
process in administrative proceedings does not always require or involve a trial-type proceeding,
for the demand of due process is also met whenever a person, being notified, is afforded the
opportunity to explain or defend himself. Also, due process is satisfied by giving the opportunity
to seek the reconsideration of the action or ruling complained of.26 The rule is the same in
election cases.27
2.
The petitioner filed a valid CoC, but the use of
his USA passport after his renunciation of
foreign citizenship rendered him disqualified
from continuing as a mayoralty candidate
A valid CoC arises upon the timely filing of a person's declaration of his intention to run for
public office and his affirmation that he possesses the eligibility for the position he seeks to
assume. The valid CoC renders the person making the declaration a valid or official candidate.28
There are two remedies available under existing laws to prevent a candidate from running in an
electoral race. One is by petition for disqualification, and the other by petition to deny due course
to or to cancel his certificate of candidacy. In Fermin v. Commission on Elections,29 the Court
has differentiated the two remedies thuswise: chanRob lesvirtualLawlibrary
[A] petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the
OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a
CoC can only be grounded on a statement of a material representation in the said certificate that
is false. The petitions also have different effects. While a person who is disqualified under
Section 68 is merely prohibited to continue as a candidate, the person whose certificate is
cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she
never filed a CoC.30cralawlawlibrary
Section 78 of the Omnibus Election Code states: chanRoblesv irtualLawlibrary
Section 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before the election. cralawlawlibrary
The Court has described the nature of a Section 78 petition in Fermin thusly: c hanRob lesvirtualLawlibrary
[t]he denial of due course to or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material representation that is false,
which may relate to the qualifications required of the public office he/she is running for. It is
noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks.
Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory
provisions on qualifications or eligibility for public office. If the candidate subsequently
states a material representation in the CoC that is false, the COMELEC, following the law,
is empowered to deny due course to or cancel such certificate. Indeed, the Court has already
likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the
OEC since they both deal with the eligibility or qualification of a candidate, with the distinction
mainly in the feet that a "Section 78" petition is filed before proclamation, while a petition for
quo warranto is filed after proclamation of the winning candidate.31 cralawlawlibrary
The denial of due course to or the cancellation of the CoC under Section 78 of the Omnibus
Election Code involves a finding not only that a person lacked a qualification for the office he is
vying for but also that such he made a material representation in the CoC that was false. The
Court has stressed in Mitra v. Commission on Elections32 that in addition to materiality there
must be a deliberate attempt to mislead, misinform, or hide a fact that would otherwise render the
candidate ineligible, viz.: chanRoblesvirtualLawlibrary
be candidate's qualifications for public office. Thus, the misrepresentation that Section 78
election laws.33
cralawlawlibrary
ChanRoblesV irtualawlibrary
A petition for the denial of due course to or cancellation of COC that falls short of the foregoing
requirements should not be granted.
The petition of Pillos in SPA No. 13-023 (DC) was in the nature of the Section 78 petition to
deny due course to or to cancel the CoC of the petitioner because it contained allegations
pertaining to a Section 78 petition, namely: (a) the petitioner as a candidate made a
representation in his CoC; (b) the representation referred to a material matter that would affect
his substantive right as candidate (that is, the right to run for the position for which he filed his
CoC); and (c) he made the false representation with the intention to deceive the electorate as to
his qualification for public office, or he deliberately attempted to mislead, misinform, or hide a
fact that would otherwise render him ineligible. Pillos further challenged the petitioner's
eligibility for public office based on his failure to comply with the one-year residency
requirement stated in the Local Government Code, and ultimately specifically prayed that the
COMELEC "issue an order to immediately deny due course and or to cancel the certificate of
candidacy of respondent Arsenio A. Agustin."34
Yet, the COMELEC En Banc canceled the petitioner's CoC not because of his failure to meet the
residency requirement but because of his failure "to sufficiently show that he complied with the
provisions of RA 9225."35 In our view, such basis for cancelation was unwarranted considering
that he became eligible to run for public office when he expressly renounced his USA
citizenship, by which he fully complied with the requirements stated in Section 5(2) of Republic
Act No. 9225, to wit: chanRoblesvirtualLawlibrary
Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following
conditions: chanRoblesvirtualLawlibrary
xxxx
(2) Those seeking elective public in the Philippines shall meet the qualification for holding such
public office as required by the Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath;
xxxx
cralawlawlibrary
More particularly, the petitioner took his Oath of Allegiance on March 9, 2012 and executed his
Affidavit of Renunciation on October 2, 2012. By his Oath of Allegiance and his renunciation of
his USA citizenship, he reverted to the status of an exclusively Filipino citizen. On October 5,
2012, the date he filed his CoC he was, therefore, exclusively a Filipino citizen, rendering him
eligible to run for public office. His CoC was valid for all intents and purposes of the election
laws because he did not make therein any material misrepresentation of his eligibility to run as
Mayor of the Municipality of Marcos, Ilocos Norte.
Nonetheless, we uphold the declaration by the COMELEC En Banc that the petitioner was
ineligible to run and be voted for as Mayor of the Municipality of Marcos, Ilocos Norte. It is not
disputed that on October 6, 2012,36 after having renounced his USA citizenship and having
already filed his CoC, he travelled abroad using his USA passport, thereby representing himself
as a citizen of the USA. He continued using his USA passport in his subsequent travels abroad37
despite having been already issued his Philippine passport on August 23, 2012.38 He thereby
effectively repudiated his oath of renunciation on October 6, 2012, the first time he used his USA
passport after renouncing his USA citizenship on October 2, 2012. Consequently, he could be
considered an exclusively Filipino citizen only for the four days from October 2, 2012 until
October 6, 2012.
The petitioner's continued exercise of his rights as a citizen of the USA through using his USA
passport after the renunciation of his USA citizenship reverted him to his earlier status as a dual
citizen.39 Such reversion disqualified him from being elected to public office in the Philippines
pursuant to Section 40(d) of the Local Government Code, viz.: chanRoblesvirtualLaw library
Section 40. Disqualifications. - The following persons arc disqualified from running for any
elective local position:
chanRoblesv irtualLawlibrary
xxxx
(d) Those with dual citizenship;
x x x x (Emphasis supplied)
cralawlawlibrary
A candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he

lacks any of the qualifications for elective office.40 Even if it made no finding that the petitioner
had deliberately attempted to mislead or to misinform as to warrant the cancellation of his CoC,
the COMELEC could still declare him disqualified for not meeting the requisite eligibility under
the Local Government Code.
3.
The petitioner was declared disqualified by
final judgment before election day; hence, the
votes cast for him should not be counted.
Considering that the Section 78 petition to deny due course to or to cancel the CoC requires a
finding that he made a material representation in the CoC that was false, the COMELEC En
Banc, in granting Pillos' motion for reconsideration, expressly held the petitioner ineligible to
participate in the elections or disqualified from the mayoralty race, which was the basis for the
cancellation of his CoC. Such reason cancelling the petitioner's CoC despite the absence of the
material misrepresentation at the time he filed his CoC might not be in order, but the undisputed
fact is that the COMELEC En Banc expressly decreed his disqualification in the April 23, 2013
resolution.
The effect of the petitioner's disqualification under the April 23, 2013 resolution depended on
when the disqualification attained finality. The distinction exists because of Section 6 of
Republic Act No. 6646 (The Electoral Reforms Law of 1987), which states: chanRoblesvirtualLawlibrary
Section 6. Effect of Disqualification Case. — Any candidate who has been declared by final
strong.
cralawlawlibrary
In Cayat v. Commission on Elections,41 the Court has expounded on the effect of Section 6 of
Republic Act No. 6646 thusly: chanRobles virtualLawlibrary
cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision
of law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:
counted. If for any reason a candidate is not declared by final judgment before an election
to be disqualified and he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the pendency thereof
order the suspension of the proclamation of such candidate whenever the evidence of his guilt is
strong. (Emphasis added)
The present case falls under the first situation. Section 6 of the Electoral Reforms Law
governing the first situation is categorical: a candidate disqualified by final judgment before
an election cannot be voted for, and votes cast for him shall not be counted. The Resolution
disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections.
Therefore, all the 8,164 votes cast in Cayat's favor are stray. Cayat was never a candidate in
the 10 May 2004 elections. Palileng's proclamation is proper because he was the sole and only
candidate, second to none.42 cralawlawlibrary
Even if his disqualification did not subvert the validity of his CoC, the petitioner would be
reduced to a non-candidate under the terms of Section 6, supra, should it be shown that the
disqualification attained finality prior to the 2013 elections. The effect was to render the votes
cast in his favor stray, resulting in Pillos being proclaimed the winning candidate.
It is crucial, therefore, to determine with certainty the time when the judgment declaring the
petitioner disqualified from running for the local elective position attained finality.
Pillos submits that the April 23, 2013 resolution was already deemed final and executory as of
May 4, 2013; hence, the writ of execution was issued on June 18, 2013; and that the petitioner's
disqualification thus attained finality prior to the May 13, 2013 elections.
Pillos' submission is correct.
Although the petitioner filed his Verified Urgent Motion for Reconsideration with Leave of Court
on May 3, 201343 upon receiving the April 23, 2013 resolution granting Pillos' motion for
reconsideration,44 such filing did not impede the April 23, 2013 resolution from being deemed
final and executory because Section l(d), Rule 13 of the 1993 COMELEC Rules of Procedure
expressly disallowed the filing of the motion for reconsideration.45 Within the context of Section
13, Rule 18,46 and Section 3, Rule 37,47 both of the 1993 COMELEC Rules of Procedure, the
April 23, 2013 resolution became final and executory as of May 4, 2013 upon the lapse of five
days from its promulgation without a restraining order being issued by the Supreme Court.
Under the circumstances, the finality of the petitioner's disqualification pursuant to the April 23,
2013 resolution prior to the May 13, 2013 elections rendered him a non-candidate, and the votes
cast for him should not have been counted.48 Pillos, being the qualified candidate obtaining the
highest number of votes, should be proclaimed duly elected as Mayor of the Municipality of
Marcos, Ilocos Norte in the 2013 elections.
WHEREFORE, the Court DISMISSES the petition for certiorari; AFFIRMS the resolution
dated April 23, 2013 insofar as it disqualified petitioner Arsenio A. Agustin from running for any
local elective position in the May 13, 2013 elections; DECLARES respondent Salvador S. Pillos
the duly elected Mayor of the Municipality of Marcos, Ilocos Norte in the May 13, 2013
elections; ORDERS the Commission on Elections to cause the proclamation of respondent
Salvador S. Pillos as the duly elected Mayor of the Municipality of Marcos, Ilocos Norte in the
May 13, 2013 elections; and REQUIRES the petitioner to pay the costs of suit.
SO ORDERED. chanroblesvirtuallawlibrary
Sereno, C.J. Carpio, Velasco, Jr., Leonardo-De Castro, Del Castillo, Villarama, Jr.,
Perez, Reyes, Perlas-Bernabe, and Leonen, JJ., concur.
Brion and Mendoza, JJ., on leave.
Peralta and Jardeleza, JJ., no part.
Endnotes:
1
Rollo, pp. 195-201.
2
Id. at 200.
3
Id. at 65.
4
Id. at 44.
5
Id. at 34.
6
Id. at 45.
7
Supra at note 4.
8
Id. at 32-36.
9
Supra at note 5.
10
Id. at 36.
11
Id. at 52-54, 65.
12
Id. at 162-166.
13
Id. at 165-166.
14
Id. at 167-184.
15
Id. at 188-192.
16
Id. at 199-200.
17
Id. at 202-211.
18
Id. at 216,
19
Id. at 217.
20
Id. at 249.
21
Id. at 225.
22
Id. at 226-229.
23
Id. at 9.
24
Id. at 250-251.
25
Id. at 256-257.
26
Office of the Ombudsman v. Reyes, G.R. No. 170512, October 5, 201 1, 658 SCRA 626, 640.
27
Reyes v. Commission on Elections, G.R. No. 207264, June 25, 2013, 699 SCRA 522, 538-539.
Talaga v. Commission on Elections, G.R. No. 196804 and G.R. No. 197015, October 9, 2012,
683 SCRA 197, 231.
29
G.R. No. 179695 and G.R. No. 182369, December 18, 2008, 574 SCRA 782.
30
Id. at 796.
31
Id. at 792-794.
32
G.R. No. 191938, July 2, 2010, 622 SCRA 744, 769.
33
See also Fennin v. Commission on Elections, supra note 29, at 792; Salcedo II v. Commission
on Elections, G.R. No. 135886, August 16, 1999, 312 SCRA 447, 455.
34
Rollo, p. 36.
35
Id. at 200.
36
Rollo, p. 126.
37
Id. at 126, 324-325.
38
Id. at 238.
39
Maquilmg v. Commission on Elections, G.R. No. 195649, April 16, 2013, 696 SCRA 420.
40
Salcedo II v. Commission on Elections, supra, note 33, at 457.
41
G.R. No. 163776 and G.R No. 165736, April 24, 2007, 522 SCRA 23.
42
Id. at 45.
43
Rollo, pp. 202-212.
44
Supra note 2. 45
45
Section 1, What Pleadings are not Allowed. - The following pleadings are not allowed: chanRoblesv irtualLawlibrary
xxxx
(d) motion for reconsideration of an en bane ruling, resolution, order or decision except in
election offense cases; x x x
xxxx
46
Section 13. Finality of Decisions or Resolutions. - x x x
(b) In Special Actions and Special Cases a decision or resolutions of the Commission en banc
shall become final and executory after five (5) days from its promulgation unless restrained by
the Supreme Court, xxx
xxxx
47
Section 3. Decisions Final After Five Days. - Decisions in pre-proclamation cases and
petitions to deny due course to or cancel certificates of candidacy, to declare a candidate as
nuisance candidate or to disqualify a candidate, and to postpone or suspend elections shall
become final and executory after the lapse of five (5) days from their promulgation, unless
48
Cayat v. Commission on Elections, supra, note 41, at 45.

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2009-ENBANC DECISIONS

Republic of the Philippines

RE: QUERY OF MR. ROGER C. A. M. No. 09-6-9-SC

** Took no part in the deliberation.

** Took no part in the deliberation.

The two Executive Judges, that we have approached, fear accusations of

Can your Honor help us once more?

2[2] 1997 Rules of Civil Procedure.

3[3] As revised, effective August 16, 2004.

To be entitled to the exemption herein provided, the litigant shall execute an

Any falsity in the affidavit of litigant or disinterested person shall be sufficient

4[4] The Civil Code provides:

Art. 44 The following are juridical persons:

1) The State and its political subdivisions;

5[5] Art. 46, Civil Code.

IN VIEW OF THE FOREGOING, the Good Shepherd Foundation, Inc. cannot be

(On official leave) (On official leave)

ANTONIO T. CARPIO RENATO C. CORONA

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

G.R. No. 183366 August 19, 2009

RICARDO C. DUCO, Petitioner,

The MCTC ultimately ruled in favor of respondent Avelino,4 to wit:

The counterclaim of protestee RICARDO C. DUCO is hereby ordered DISMISSED in view of

ACCORDINGLY, this Commission (First Division) RESOLVES to DIRECT the Judicial

Undaunted, the petitioner comes to us on certiorari, contending that:

PUBLIC RESPONDENT AGAIN COMMITTED GRAVE ABUSE OF DISCRETION

RULING OF THE COURT

Sec. 6. Duty of Clerk of Court of Commission to Calendar Motion for Reconsideration.—The

The petition for certiorari lacks merit.

(a) Failure of the appellant to pay the correct appeal fee;

We cannot heed the petitioner’s plea.

ACCORDINGLY, WE dismiss the petition for certiorari for lack of merit.

(On official leave) (On official leave)

ANTONIO T. CARPIO RENATO C. CORONA

CONCHITA CARPIO MORALES MINITA V. CHICO-NAZARIO

(a) xxx xxx xxx

(b) Election cases appealed from courts of limited jurisdiction…….. P500.00

G.R. No. 181869 October 2, 2009

ISMUNLATIP H. SUHURI, Petitioner,

Initially resolving Hayudini’s motion for reconsideration, Commissioners Florentino A. Tuason,

In his petition, Suhuri insists that:

I. THE RESPONDENT HONORABLE COMMISSION ON ELECTIONS (EN BANC)

II. THE RESPONDENT HONORABLE COMMISSION ON ELECTIONS (EN BANC)

RULING OF THE COURT

We uphold the assailed resolution of the COMELEC en banc.

Suhuri’s Grounds Were Not Proper

A pre-proclamation controversy, according to Section 1, Article XX of the Omnibus Election

(a) Illegal composition or proceedings of the board of canvassers;

To be noted, too, is that in a pre-proclamation controversy, the COMELEC is restricted to an

6. The joint-affidavit of Jarah A. Jumdail, Kahil T. Barrahani, Almezer H. Rashid, Elias

9. The affidavit of Ermalyn J. Jamasali, a member of the BEI on duty in Precinct

The doctrine of statistical improbability was first pronounced in Lagumbay v. Commission on

The main point to remember is that there is no blockvoting nowadays.

Did Not Gravely Abuse Its Discretion

The petitioner shall pay the costs of suit.

(On official leave)

ANTONIO T. CARPIO RENATO C. CORONA

TERESITA J. LEONARDO-DE (On leave)

DIOSDADO M. PERALTA MARIANO C. DEL CASTILLO

G.R. No. 164195 December 4, 2009

APO FRUITS CORPORATION and HIJO PLANTATION, INC. Petitioners,