What is “mootness” in law? What is “ripeness?
” For instance, suppose that the plaintiff in a breach of contract case sued the defendant
The doctrines of “mootness” and “ripeness” both deal with when it is appropriate for a
court to hear a particular case. They are related to the case or controversy requirement in
the U.S. Constitution, which limits courts to hearing only those cases in which actual people
or companies have an actual stake in the matter.
Mootness
In U.S. law, a “moot” case is one that further legal proceedings cannot affect or that has
somehow moved out of the power of the courts. For example, in 1974, the U.S. Supreme
Court heard the case of DeFunis v. Odegaard. In this case, the plaintiff was a student who
had initially been denied admission to law school. During the course of the case, however,
the plaintiff was provisionally admitted to the law school. By the time the case reached the
Supreme Court, the plaintiff was only a few months from graduation. Since the plaintiff
had gotten admitted to law school, and since the law school could not prevent the plaintiff
from graduating, the Supreme Court held that the case was moot. There was nothing the
Court could do at that point that would affect the situation either way.
A few exceptions exist to the “mootness” argument, however, including:
 Voluntary cessation. A court will not find that a case is moot even if the defendant has
stopped doing the thing the plaintiff is suing him for. For instance, suppose that the
plaintiff is injured by pollution spilling into her water supply from the defendant’s
factory. When the plaintiff files her case, however, the defendant closes the factory,
stopping the pollution. The court will likely not find that this case is moot, however,
since the defendant can simply re-open the factory after the case is dismissed or start up
another factory elsewhere and continue to pollute the plaintiff’s or other people’s water
supplies.
 “Capable of repetition, yet evading review.” A court will likely find that a case is not
moot if the plaintiff can be in a position to be harmed again in the future, even if she is
not being harmed at the moment the case is heard. Cases dealing with a woman’s rights
during pregnancy are a classic example of this exception. A court will hear these cases
even if the plaintiff is not pregnant at the moment of the court hearing, because the
plaintiff is capable of becoming pregnant again in the future.
 Class action representatives. A case does not become moot if the person representing a
class of plaintiffs stops being a member of the class by the time the case goes to court,
as long as she was a member of the class when the case began.
Ripeness
A case may be dismissed if it is not “ripe,” or if all the issues in the case aren’t prepared for
review. This doctrine is also related to the “case or controversy” requirement because it
requires an actual dispute between two parties based on conduct that actually happened.
after the defendant promised to deliver 5,000 widgets on October 10 under the terms of
the contract, but when October 10 came, the defendant did not deliver the 5,000
widgets. If the plaintiff files her case after the defendant has actually failed to deliver the
widgets, the case will be considered “ripe”, because an actual breach of contract
occurred. However, if the plaintiff files her case on October 8, assuming (without knowing)
that the defendant will not show up with the widgets two days later as promised, the case
may be dismissed because it does not meet the “ripeness” requirement.
Ripeness doctrine is related to the prohibition against courts providing advisory opinions,
or ruling on hypothetical cases that haven’t actually happened yet – another action that is
prohibited by the “case or controversy” requirement. In order for a case to be ripe, an
actual harm must have occurred to an actual plaintiff.
David v Arroyo
FACTS:
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People
Power I, President Arroyo issued Presidential Proclamation No. 1017 (PP 1017) declaring a
state of national emergency. On the same day, the President issued General Order No. 5
(G.O. No. 5) implementing PP 1017. The proximate cause behind the executive issuances
was the conspiracy among some military officers, leftist insurgents of the New People’s
Army (NPA), and some members of the political opposition in a plot to unseat or
assassinate President Arroyo. They considered the aim to oust or assassinate the President
and take-over the reigns of government as a clear and present danger. All programs and
activities related to the 20th anniversary celebration of Edsa People Power I are cancelled.
Likewise, all permits to hold rallies issued earlier by the local governments are revoked.
Justice Secretary Raul Gonzales stated that political rallies, which to the President’s mind
were organized for purposes of destabilization, are cancelled. Presidential Chief of Staff
Michael Defensor announced that “warrantless arrests and take-over of facilities, including
media, can already be implemented.” During the dispersal of the rallyists along EDSA, police
arrested (without warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist.
Exactly one week after the declaration of a state of national emergency, the President
lifted PP 1017 by issuing Proclamation No. 1021.
ISSUE:
Whether or not the issuance of PP 1021 renders the petitions moot and academic.
HELD:
Moot and academic case - 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.
Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.
The Court holds that President Arroyo’s issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the
police officers, according to petitioners, committed illegal acts in implementing it. Are PP
1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These
are the vital issues that must be resolved in the present petitions. It must be stressed that
“an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative.”
The “moot and academic” principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; second, the exceptional
character of the situation and the paramount public interest is involved; third, when
constitutional issue raised requires formulation of controlling principles to guide the bench,
the bar, and the public; and fourth, the case is capable of repetition yet evading review.
All the foregoing exceptions are present here and justify this Court’s assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and
G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect
the public’s interest, involving as they do the people’s basic rights to freedom of
expression, of assembly and of the press. Moreover, the Court has the duty to formulate
guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the military and
the police, on the extent of the protection given by constitutional guarantees. And lastly,
respondents’ contested actions are capable of repetition. Certainly, the petitions are
subject to judicial review.
DISCUSSION: I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept
of judicial review enunciated in Marbury v. Madison.[21] This concept rests on the
extraordinary simple foundation -
The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or unconsciously
oversteps these limitations there must be some authority competent to
hold it in control, to thwart its unconstitutional attempt, and thus to
vindicate and preserve inviolate the will of the people as expressed in the
Constitution. This power the courts exercise. This is the beginning and the
end of the theory of judicial review.[22]
But the power of judicial review does not repose upon the courts a Òself-starting
capacity.Ó[23] Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to raise
a question of constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional question must be
necessary to the determination of the case itself.[24]
Respondents maintain that the first and second requisites are absent, hence, we shall
limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal
claims susceptible of judicial resolution. It is Òdefinite and concrete, touching the legal
relations of parties having adverse legal interest;Ó a real and substantial controversy
admitting of specific relief.[25] The Solicitor General refutes the existence of such actual
case or controversy, contending that the present petitions were rendered Òmoot and
academicÓ by President ArroyoÕs issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events,[26] so that a declaration thereon would be of no practical use
or value.[27] Generally, courts decline jurisdiction over such case[28] or dismiss it on ground
of mootness.[29]
The Court holds that President ArroyoÕs issuance of PP 1021 did not render the
present petitions moot and academic. During the eight (8) days that PP 1017 was operative,
the police officers, according to petitioners, committed illegal acts in implementing it. Are
PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal
acts? These are the vital issues that must be resolved in the present petitions. It must be
stressed that Òan unconstitutional act is not a law, it confers no rights, it imposes no duties,
it affords no protection; it is in legal contemplation, inoperative.Ó[30]
The Òmoot and academicÓ principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution;[31] second, the exceptional
character of the situation and the paramount public interest is involved;[32] third, when
constitutional issue raised requires formulation of controlling principles to guide the bench,
the bar, and the public;[33] and fourth, the case is capable of repetition yet evading
review.[34]
All the foregoing exceptions are present here and justify this CourtÕs assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and
G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect
the publicÕs interest, involving as they do the peopleÕs basic rights to freedom of
expression, of assembly and of the press. Moreover, the Court has the duty to formulate
guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the military and
the police, on the extent of the protection given by constitutional guarantees.[35] And
lastly, respondentsÕ contested actions are capable of repetition. Certainly, the petitions are
subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. PanganibanÕs Separate Opinion in Sanlakas v. Executive
Secretary.[36] However, they failed to take into account the Chief JusticeÕs very statement
that an otherwise ÒmootÓ case may still be decided Òprovided the party raising it in a proper
case has been and/or continues to be prejudiced or damaged as a direct result of its
issuance.Ó The present case falls right within this exception to the mootness rule pointed
out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems
it imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as Òa right of appearance in a court of justice on a given
question.Ó[37] In private suits, standing is governed by the Òreal-parties-in interestÓ rule
as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides
that Òevery action must be prosecuted or defended in the name of the real party in
interest.Ó Accordingly, the Òreal-party-in interestÓ is Òthe party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the avails of the
suit.Ó[38] Succinctly put, the plaintiffÕs standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff
who asserts a Òpublic rightÓ in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently from
any other person. He could be suing as a Òstranger,Ó or in the category of a Òcitizen,Ó or
Ôtaxpayer.Ó In either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a ÒcitizenÓ or Òtaxpayer.
Case law in most jurisdictions now allows both ÒcitizenÓ and ÒtaxpayerÓ standing in
public actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was
held that the plaintiff in a taxpayerÕs suit is in a different category from the plaintiff in a
citizenÕs 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:[40] ÒIn matter of mere public right,
howeverÉthe people are the real partiesÉIt 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.Ó With respect to taxpayerÕs suits, Terr v.
Jordan[41] held that Òthe 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.Ó
However, to prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United State Supreme Court laid down
the more stringent Òdirect injuryÓ test in Ex Parte Levitt,[42] later reaffirmed in Tileston v.
Ullman.[43] The same Court ruled that for a private individual to invoke the judicial power to
determine the validity of an executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the Òdirect injuryÓ test in our jurisdiction. In People v.
Vera,[44] it held that the person who impugns the validity of a statute must have Òa
personal and substantial interest in the case such that he has sustained, or will sustain direct
injury as a result.Ó The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate,[45] Manila Race Horse TrainersÕ Association v. De la
Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-Chinese League of the
Philippines v. Felix.[48]
However, being a mere procedural technicality, the requirement of locus standi may
be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency
Powers Cases, Araneta v. Dinglasan,[49] where the Òtranscendental importanceÓ of the
cases prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon the issues raised due
to the Òfar-reaching implicationsÓ of the petition notwithstanding its categorical statement
that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases
where this liberal policy has been observed, allowing ordinary citizens, members of Congress,
and civic organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners have failed to show
direct injury, they have been allowed to sue under the principle of Òtranscendental
importance.Ó Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where 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;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court
held that Ògiven 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 reviewÓ of the
Visiting Forces Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a showing
that ÒBalikatan 02-01Ó involves the exercise of CongressÕ taxing or
spending powers, it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,[55] that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements
may be relaxed.
 By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to
sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of
the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained
of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the CourtÕs attitude
toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a
peopleÕs organization does not give it the requisite personality to question the validity of
the on-line lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public
funds are being misused. Nor can it sue as a concerned citizen as it does not allege any
specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,[57] the Court reiterated the Òdirect injuryÓ test with respect to concerned
citizensÕ cases involving constitutional issues. It held that Òthere must be a showing that
the citizen personally suffered some actual or threatened injury arising from the alleged
illegal official act.Ó
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any
injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who
are members of Congress have standing to sue, as they claim that the PresidentÕs
declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus
impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and
Social Justice Society, the Court declared them to be devoid of standing, equating them with
the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares
and Tribune Publishing Co. Inc. They alleged Òdirect injuryÓ resulting from Òillegal arrestÓ
and Òunlawful searchÓ committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of Congress
is necessary whenever the alarming powers incident to Martial Law are used. Moreover, it
is in the interest of justice that those affected by PP 1017 can be represented by their
Congressmen in bringing to the attention of the Court the alleged violations of their basic
rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,[61] Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,[62] Basco v. Philippine Amusement and Gaming Corporation,[63] and Ta–ada v.
Tuvera,[64] that when the issue concerns a public right, it is sufficient that the petitioner is
a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMUÕs assertion that PP 1017 and G.O. No. 5 violated its right to
peaceful assembly may be deemed sufficient to give it legal standing. Organizations may be
granted standing to assert the rights of their members.[65] We take judicial notice of the
announcement by the Office of the President banning all rallies and canceling all permits for
public assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated
Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or
potential injury which the IBP as an institution or its members may suffer as a consequence
of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v.
Zamora,[66] the Court held that the mere invocation by the IBP of its duty to preserve the
rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by other groups and the
whole citizenry. However, in view of the transcendental importance of the issue, this Court
declares that petitioner have locus standi.
 In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant
petition as there are no allegations of illegal disbursement of public funds. The fact that she
is a former Senator is of no consequence. She can no longer sue as a legislator on the
allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No.
5. Her claim that she is a media personality will not likewise aid her because there was no
showing that the enforcement of these issuances prevented her from pursuing her
occupation. Her submission that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017 will
affect the proceedings or result of her case. But considering once more the transcendental
importance of the issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to
the bigger question of proper exercise of judicial power. This is the underlying legal tenet of
the Òliberality doctrineÓ on legal standing. It cannot be doubted that the validity of PP No.
1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino
people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated
breath the ruling of this Court on this very critical matter. The petitions thus call for the
application of the Òtranscendental importanceÓ doctrine, a relaxation of the standing
requirements for the petitioners in the ÒPP 1017 cases.Ó
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is
the doctrine that the President, during his tenure of office or actual incumbency,[67] may
not be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the Head
of State, if he can be dragged into court litigations while serving as such. Furthermore, it is
important that he be freed from any form of harassment, hindrance or distraction to enable
him to fully attend to the performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the executive branch and anything which
impairs his usefulness in the discharge of the many great and important duties imposed upon
him by the Constitution necessarily impairs the operation of the Government. However, this
does not mean that the President is not accountable to anyone. Like any other official, he
remains accountable to the people[68] but he may be removed from office only in the mode
provided by law and that is by impeachment.[69]
RAMON A. GONZALES, petitioner, vs. HON. ANDRES R. NARVASA
In this petition for prohibition and mandamus filed on December 9, 1999, petitioner
Ramon A. Gonzales, in his capacity as a citizen and taxpayer, assails the constitutionality of
the creation of the Preparatory Commission on Constitutional Reform (PCCR) and of the
positions of presidential consultants, advisers and assistants. Petitioner asks this Court to
enjoin the PCCR and the presidential consultants, advisers and assistants from acting as such,
and to enjoin Executive Secretary Ronaldo B. Zamora from enforcing their advice and
recommendations. In addition, petitioner seeks to enjoin the Commission on Audit from
passing in audit expenditures for the PCCR and the presidential consultants, advisers and
assistants. Finally, petitioner prays for an order compelling respondent Zamora to furnish
petitioner with information on certain matters.
On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded in his capacity as
Chairman of the PCCR, filed his Comment to the Petition. The rest of the respondents, who
are being represented in this case by the Solicitor General, filed their Comment with this
Court on March 7, 2000. Petitioner then filed a Consolidated Reply on April 24, 2000,
whereupon this case was considered submitted for decision.
I. Preparatory Commission on Constitutional Reform
The Preparatory Commission on Constitutional Reform (PCCR) was created by President
Estrada on November 26, 1998 by virtue of Executive Order No. 43 (E.O. No. 43) in order to
study and recommend proposed amendments and/or revisions to the 1987 Constitution, and
the manner of implementing the same.[1] Petitioner disputes the constitutionality of the
PCCR on two grounds. First, he contends that it is a public office which only the legislature
can create by way of a law.[2] Secondly, petitioner asserts that by creating such a body the
President is intervening in a process from which he is totally excluded by the Constitution the
amendment of the fundamental charter.[3]
It is alleged by respondents that, with respect to the PCCR, this case has become moot
and academic. We agree.
An action is considered moot when it no longer presents a justiciable controversy
because the issues involved have become academic or dead.[4] Under E.O. No. 43, the PCCR
was instructed to complete its task on or before June 30, 1999.[5] However, on February 19,
1999, the President issued Executive Order No. 70 (E.O. No. 70), which extended the time
frame for the completion of the commissions work, viz
SECTION 6. Section 8 is hereby amended to read as follows:
Time Frame. The Commission shall commence its work on 01 January 1999 and
complete the same on or before 31 December 1999. The Commission shall submit its
report and recommendations to the President within fifteen (15) working days from 31
December 1999.
The PCCR submitted its recommendations to the President on December 20, 1999 and was
dissolved by the President on the same day. It had likewise spent the funds allotted to
it.[6]Thus, the PCCR has ceased to exist, having lost its raison detre. Subsequent events have
overtaken the petition and the Court has nothing left to resolve.
 The staleness of the issue before us is made more manifest by the impossibility of
granting the relief prayed for by petitioner. Basically, petitioner asks this Court to enjoin the
PCCR from acting as such.[7] Clearly, prohibition is an inappropriate remedy since the body
sought to be enjoined no longer exists. It is well established that prohibition is a preventive
remedy and does not lie to restrain an act that is already fait accompli.[8] At this point, any
ruling regarding the PCCR would simply be in the nature of an advisory opinion, which is
definitely beyond the permissible scope of judicial power.
In addition to the mootness of the issue, petitioners lack of standing constitutes another
obstacle to the successful invocation of judicial power insofar as the PCCR is concerned.
The question in standing is whether a party has alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.[9] In assailing the constitutionality of E.O. Nos. 43 and 70,
petitioner asserts his interest as a citizen and taxpayer.[10] A citizen acquires standing only
if he can establish that he has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged
action; and the injury is likely to be redressed by a favorable action.[11] In Kilosbayan,
Incorporated v. Morato,[12]we denied standing to petitioners who were assailing a lease
agreement between the Philippine Charity Sweepstakes Office and the Philippine Gaming
Management Corporation, stating that,
in Valmonte v. Philippine Charity Sweepstakes Office, G.R. No. 78716, Sept. 22, 1987, standing
was denied to a petitioner who sought to declare a form of lottery known as Instant
Sweepstakes invalid because, as the Court held,
Valmonte brings the suit as a citizen, lawyer, taxpayer and father of three (3) minor
children. But nowhere in his petition does petitioner claim that his rights and privileges as a
lawyer or citizen have been directly and personally injured by the operation of the Instant
Sweepstakes. The interest of the person assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not only that the law is invalid, but also that
he has sustained or in immediate 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 complained of.
We apprehend no difference between the petitioner in Valmonte and the present
petitioners. Petitioners do not in fact show what particularized interest they have for
bringing this suit. It does not detract from the high regard for petitioners as civic leaders to
say that their interest falls short of that required to maintain an action under Rule 3, d 2.
Coming now to the instant case, petitioner has not shown that he has sustained or is in
danger of sustaining any personal injury attributable to the creation of the PCCR. If at all, it is
only Congress, not petitioner, which can claim any injury in this case since, according to
petitioner, the President has encroached upon the legislatures powers to create a public
office and to propose amendments to the Charter by forming the PCCR. Petitioner has
sustained no direct, or even any indirect, injury. Neither does he claim that his rights or
privileges have been or are in danger of being violated, nor that he shall be subjected to any
penalties or burdens as a result of the PCCRs activities. Clearly, petitioner has failed to
establish his locus standi so as to enable him to seek judicial redress as a citizen.
A taxpayer is deemed to have the standing to raise a constitutional issue when it is
established that public funds have been disbursed in alleged contravention of the law or the
Constitution.[13], Thus payers action is properly brought only when there is an exercise by
Congress of its taxing or spending power.[14] This was our ruling in a recent case wherein
petitioners Telecommunications and Broadcast Attorneys of the Philippines (TELEBAP) and
GMA Network, Inc. questioned the validity of section 92 of B.P. No. 881 (otherwise knows as
the Omnibus Election Code) requiring radio and television stations to give free air time to the
Commission on Elections during the campaign period.[15] The Court held that petitioner
TELEBAP did not have any interest as a taxpayer since the assailed law did not involve the
taxing or spending power of Congress.[16]
Many other rulings have premised the grant or denial of standing to taxpayers upon
whether or not the case involved a disbursement of public funds by the
legislature. In Sanidad v. Commission on Elections,[17] the petitioners therein were allowed to
bring a taxpayers suit to question several presidential decrees promulgated by then
President Marcos in his legislative capacity calling for a national referendum, with the Court
explaining that
...[i]t is now an ancient rule that the valid source of a statute Presidential Decrees are of
such nature may be contested by one who will sustain a direct injury as a result of its
enforcement.At the instance of taxpayers, laws providing for the disbursement of public
funds may be enjoined, upon the theory that the expenditure of public funds by an officer
of the State for the purpose of executing an unconstitutional act constitutes a
misapplication of such funds. The breadth of Presidential Decree No. 991 carries an
appropriation of Five Million Pesos for the effective implementation of its purposes.
Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its
provisions. The interest of the aforenamed petitioners as taxpayers in the lawful
expenditure of these amounts of public money sufficiently clothes them with that
personality to litigate the validity of the Decrees appropriating said funds.
In still another case, the Court held that petitioners the Philippine Constitution Association,
Inc., a non-profit civic organization - had standing as taxpayers to question the
constitutionality of Republic Act No. 3836 insofar as it provides for retirement gratuity and
commutation of vacation and sick leaves to Senators and Representatives and to the elective
officials of both houses of Congress.[18] And in Pascual v. Secretary of Public Works,[19] the
Court allowed petitioner to maintain a taxpayers suit assailing the constitutional soundness
of Republic Act No. 920 appropriating P85,000 for the construction, repair and improvement
of feeder roads within private property. All these cases involved the disbursement of public
funds by means of a law.
Meanwhile, in Bugnay Construction and Development Corporation v. Laron,[20] the Court
declared that the trial court was wrong in allowing respondent Ravanzo to bring an action
for injunction in his capacity as a taxpayer in order to question the legality of the contract of
lease covering the public market entered into between the City of Dagupan and
petitioner. The Court declared that Ravanzo did not possess the requisite standing to bring
such taxpayers suit since [o]n its face, and there is no evidence to the contrary, the lease
contract entered into between petitioner and the City shows that no public funds have been
or will be used in the construction of the market building.
Coming now to the instant case, it is readily apparent that there is no exercise by
Congress of its taxing or spending power. The PCCR was created by the President by virtue
of E.O. No. 43, as amended by E.O. No. 70. Under section 7 of E.O. No. 43, the amount of P3
million is appropriated for its operational expenses to be sourced from the funds of the
Office of the President. The relevant provision states -
Appropriations. The initial amount of Three Million Pesos (P3,000,000.00) is hereby
appropriated for the operational expenses of the Commission to be sourced from
funds of the Office of the President, subject to the usual accounting and auditing rules
and regulations. Additional amounts shall be released to the Commission upon
submission of requirements for expenditures.
The appropriations for the PCCR were authorized by the President, not by Congress. In fact,
there was no an appropriation at all. 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. [21] The funds used for the PCCR
were taken from funds intended for the Office of the President, in the exercise of the Chief
Executives power to transfer funds pursuant to section 25 (5) of article VI of the Constitution.
In the final analysis, it must be stressed that the Court retains the power to decide
whether or not it will entertain a taxpayers suit.[22] In the case at bar, there being no exercise
by Congress of its taxing or spending power, petitioner cannot be allowed to question the
creation of the PCCR in his capacity as a taxpayer, but rather, he must establish that he has a
personal and substantial interest in the case and that he has sustained or will sustain direct
injury as a result of its enforcement.[23] In other words, petitioner must show that he is a
real party in interest - that he will stand to be benefited or injured by the judgment or that he
will be entitled to the avails of the suit.[24] Nowhere in his pleadings does petitioner presume
to make such a representation.
II. Presidential Consultants, Advisers, Assistants
The second issue raised by petitioner concerns the presidential consultants. Petitioner
alleges that in 1995 and 1996, the President created seventy (70) positions in the Office of
the President and appointed to said positions twenty (20) presidential consultants, twenty-
two (22) presidential advisers, and twenty-eight (28) presidential assistants.[25] Petitioner
asserts that, as in the case of the PCCR, the President does not have the power to create
these positions.[26]
Consistent with the abovementioned discussion on standing, petitioner does not have
the personality to raise this issue before the Court. First of all, he has not proven that he has
sustained or is in danger of sustaining any injury as a result of the appointment of such
presidential advisers. Secondly, petitioner has not alleged the necessary facts so as to enable
the Court to determine if he possesses a taxpayers interest in this particular issue. Unlike the
PCCR which was created by virtue of an executive order, petitioner does not allege by what
official act, whether it be by means of an executive order, administrative order,
memorandum order, or otherwise, the President attempted to create the positions of
presidential advisers, consultants and assistants. Thus, it is unclear what act of the President
petitioner is assailing. In support of his allegation, petitioner merely annexed a copy of the
Philippine Government Directory (Annex C) listing the names and positions of such
presidential consultants, advisers and assistants to his petition. However, appointment is
obviously not synonymous with creation. It would be improvident for this Court to entertain
this issue given the insufficient nature of the allegations in the Petition.
III. Right to Information
Finally, petitioner asks us to issue a writ of mandamus ordering Executive Secretary
Ronaldo B. Zamora to answer his letter (Annex D) dated October 4, 1999 requesting for the
names of executive officials holding multiple positions in government, copies of their
appointments, and a list of the recipients of luxury vehicles seized by the Bureau of Customs
and turned over to Malacanang.[27]
The right to information is enshrined in Section 7 of the Bill of Rights which provides that
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.
Under both the 1973[28] and 1987 Constitution, this is a self-executory provision which
can be invoked by any citizen before the courts. This was our ruling in Legaspi v. Civil Service
Commission,[29] wherein the Court classified the right to information as a public right and
when a [m]andamus proceeding involves the assertion of a public right, the requirement of
personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore,
part of the general public which possesses the right. However, Congress may provide for
reasonable conditions upon the access to information. Such limitations were embodied in
Republic Act No. 6713, otherwise knows as the Code of Conduct and Ethical Standards for
Public Officials and Employees, which took effect on March 25, 1989. This law provides that,
in the performance of their duties, all public officials and employees are obliged to respond
to letters sent by the public within fifteen (15) working days from receipt thereof and to
ensure the accessibility of all public documents for inspection by the public within reasonable
working hours, subject to the reasonable claims of confidentiality.[30]
Elaborating on the significance of the right to information, the Court said in Baldoza v.
Dimaano[31] that [t]he incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be no realistic
perception by the public of the nations problems, nor a meaningful democratic
decisionmaking if they are denied access to information of general interest. Information is
needed to enable the members of society to cope with the exigencies of the times. The
information to which the public is entitled to are those concerning matters of public concern,
a term which embrace[s] a broad spectrum of subjects which the public may want to know,
either because these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine
in a case by case basis whether the matter at issue is of interest or importance, as it relates
to or affects the public.[32]
Thus, we agree with petitioner that respondent Zamora, in his official capacity as
Executive Secretary, has a constitutional and statutory duty to answer petitioners letter
dealing with matters which are unquestionably of public concern that is, appointments made
to public offices and the utilization of public property. With regard to petitioners request for
copies of the appointment papers of certain officials, respondent Zamora is obliged to allow
the inspection and copying of the same subject to the reasonable limitations required for the
orderly conduct of official business.[33]
WHEREFORE, the petition is dismissed, with the exception that respondent Zamora is
ordered to furnish petitioner with the information requested.
SO ORDERED
ABS-CBN-petitioner Vs Phil. Multi-Media System Inc., et al
FACTS: - This is a petition for review on certiorari that assails the decisions:
- December 20,2004 decision of the Director-General of the Intellectual Property Office in
favor of PMMS
-July 12, 2006 decision of the Court of Appeals that affirms the decision of Director-General
-December 11, 2006 denying the motion for recon of ABS-CBN
1. Petitioner ABS-CBN is a broadcasting television licensed under laws of RP, It broadcast
channel 2&23 nationwide.
2. Respondent-PMSI is the operator of Dream Broadcasting System that delivers DTH via
satellite nationwide.
3. Individual respondents are the board of directors of PMSI
4. PMSI was granted a legislative franchise under RA 8630 on May 7,1998
5. Provisional Authority by the National Telecommunications Commission on Feb. 1,2000
6. When it stated its operation it offered as part of its line up diff. stations including the
petitioner.
7. Apr. 25,2001 petitioner demanded PMSI to cease and desist from rebroadcasting Chan.
2&23.
8. PMSI replied on Apr. 25, 2001 that is was in accordance with the authority and obligation
given by NTC
9. Negotiation ensue but did not result to settlement of both parties
10. On May 13,2002 ABS-CBN filed w/ Intellectual Property Office a complaint against the
respondent for “Violation of Laws Involving Property Rights, with Prayer for the
issuance of a Temporary Restraining Order / Writ for Preliminary Injunction
11. Bureau of Legal Affairs of IPO granted ABS-CBN’s application of temporary
restraining order and
12. PMSI suspended its transmission of ABS and also filed a petition for certiorari with CA
13. PMSI filed with BLA a manifestation reiterating that it is subj. to a must-carry rule given
by the NTC
14. Another manifestation was files by PMSI with BLA that NTC enjoin it to carry out the
Memo
15. On Dec 22,2003 BLA order a permanent cease and desist order from rebroadcasting
channel 2&23 of PMSI
16. Feb 6, 2004 PMSI filed an appeal w/ Diretor-General IPO and it was granted on Dec
20,2004
17. Thus, ABS-CBN filed a petition for review and issuance of TRO and filed a petition for
contempt to PMSI for continuing to rebroadcasting
18. The denied the motion of ABS and sustained the findings of Dir.-Gen of IPO
ISSUE: Whether or not, PMSI’s unauthorized rebroadcasting of Channel 2&23 infringed
on its broadcasting rights and copy rights. Whether or not the case at bar is valid for judicial
review.
RULING: 1. The court finds it no merit in petitioner’s contention that PMSI violated its
broadcaster’s right under the IP Code. The MUST-CARRY Rule under NTC Circular that
was given to respondent falls under the foregoing category of limitations on copyright. This
MUST-CARRY RULE is in consonance with the principles and objectives that “The Filipino
people must be given wider access to more sources of news, infos, education, sports event
and entertainment programs other than those provided for by mass media and afforded
television programs to attain a well informed, well-versed and culturally refined citizenry
and enhance their socio-economic growth. The must-carry rule favors both broadcasting
org. and public. It prevents cable television companies from excluding broadcasting org.
especially in those places not reached by signal.
2. With regards to the issue of the constitutionality of the MUST-CARRY RULE, the Court
finds that its resolution is not necessary in the disposition of the instant case. The instant
case was instituted for violation of the IP Code and infringement of ABS-CBN’s
broadcasting rights and copyright, which can be resolved without going into the
constitutionality of the Memorandum Circular No. 04-08-88. The only relevance of the
circular in this case is whether or not compliance therewith should be considered
manifestation of lack of intent to commit infringement.
From the decision:
With regard to the issue of the constitutionality of the must-carry rule, the Court finds
that its resolution is not necessary in the disposition of the instant case. One of the essential
requisites for a successful judicial inquiry into constitutional questions is that the resolution
of the constitutional question must be necessary in deciding the case.[53] In Spouses Mirasol
v. Court of Appeals,[54] we held:
As a rule, the courts will not resolve the constitutionality of a law, if
the controversy can be settled on other grounds. The policy of the courts is
to avoid ruling on constitutional questions and to presume that the acts of
the political departments are valid, absent a clear and unmistakable showing
to the contrary. To doubt is to sustain. This presumption is based on the
doctrine of separation of powers. This means that the measure had first been
carefully studied by the legislative and executive departments and found to
be in accord with the Constitution before it was finally enacted and
approved.[55]
The instant case was instituted for violation of the IP Code and infringement of ABS-
CBNs broadcasting rights and copyright, which can be resolved without going into the
constitutionality of Memorandum Circular No. 04-08-88. As held by the Court of Appeals, the
only relevance of the circular in this case is whether or not compliance therewith should be
considered manifestation of lack of intent to commit infringement, and if it is, whether such
lack of intent is a valid defense against the complaint of petitioner.[56]
The records show that petitioner assailed the constitutionality of Memorandum
Circular No. 04-08-88 by way of a collateral attack before the Court of Appeals. In Philippine
National Bank v. Palma,[57] we ruled that for reasons of public policy, the constitutionality of
a law cannot be collaterally attacked. A law is deemed valid unless declared null and void by
a competent court; more so when the issue has not been duly pleaded in the trial court.[58]
As a general rule, the question of constitutionality must be raised at the earliest
opportunity so that if not raised in the pleadings, ordinarily it may not be raised in the trial,
and if not raised in the trial court, it will not be considered on appeal.[59] In Philippine
Veterans Bank v. Court of Appeals,[60] we held:
We decline to rule on the issue of constitutionality as all the requisites
for the exercise of judicial review are not present herein. Specifically, the
question of constitutionality will not be passed upon by the Court unless, at
the first opportunity, it is properly raised and presented in an appropriate
case, adequately argued, and is necessary to a determination of the case,
particularly where the issue of constitutionality is the very lis
mota presented. x x x[61]
Finally, we find that the dismissal of the petition for contempt filed by ABS-CBN is in
order.
Indirect contempt may either be initiated (1) motu proprio by the court by issuing an
order or any other formal charge requiring the respondent to show cause why he should not
be punished for contempt or (2) by the filing of a verified petition, complying with the
requirements for filing initiatory pleadings.[62]
ABS-CBN filed a verified petition before the Court of Appeals, which was docketed
CA G.R. SP No. 90762, for PMSIs alleged disobedience to the Resolution and Temporary
Restraining Order, both dated July 18, 2005, issued in CA-G.R. SP No. 88092. However, after
the cases were consolidated, the Court of Appeals did not require PMSI to comment on the
petition for contempt. It ruled on the merits of CA-G.R. SP No. 88092 and ordered the
dismissal of both petitions.
ABS-CBN argues that the Court of Appeals erred in dismissing the petition for
contempt without having ordered respondents to comment on the same. Consequently, it
would have us reinstate CA-G.R. No. 90762 and order respondents to show cause why they
should not be held in contempt.
It bears stressing that the proceedings for punishment of indirect contempt are
criminal in nature. The modes of procedure and rules of evidence adopted in contempt
proceedings are similar in nature to those used in criminal prosecutions. [63] While it may be
argued that the Court of Appeals should have ordered respondents to comment, the issue
has been rendered moot in light of our ruling on the merits. To order respondents to
comment and have the Court of Appeals conduct a hearing on the contempt charge when
the main case has already been disposed of in favor of PMSI would be circuitous. Where the
issues have become moot, there is no justiciable controversy, thereby rendering the
resolution of the same of no practical use or value.[64]
WHEREFORE, the petition is DENIED. The July 12, 2006 Decision of the Court of
Appeals in CA-G.R. SP Nos. 88092 and 90762, sustaining the findings of the Director-General
of the Intellectual Property Office and dismissing the petitions filed by ABS-CBN Broadcasting
Corporation, and the December 11, 2006 Resolution denying the motion for reconsideration,
are AFFIRMED.

Antonio Serrano v. Gallant Maritime Services, Inc.
FACTS:
Petitioner Antonio Serrano was hired by respondents Gallant Maritime Services, Inc. and
Marlow Navigation Co., Inc., under a POEA-approved contract of employment for 12
months, as Chief Officer, with the basic monthly salary of US$1,400, plus $700/month
overtime pay, and 7 days paid vacation leave per month.
On the date of his departure, Serrano was constrained to accept a downgraded
employment contract upon the assurance and representation of respondents that he
would be Chief Officer by the end of April 1998.
Respondents did not deliver on their promise to make Serrano Chief Officer.
Hence, Serrano refused to stay on as second Officer and was repatriated to the Philippines,
serving only two months and 7 days, leaving an unexpired portion of nine months and
twenty-three days.
Upon complaint filed by Serrano before the Labor Arbiter (LA), the dismissal was declared
illegal.
On appeal, the NLRC modified the LA decision based on the provision of RA 8042.
Serrano filed a Motion for Partial Reconsideration, but this time he questioned the
constitutionality of the last clause in the 5th paragraph of Section 10 of RA 8042.
ISSUES:
1. Whether or not the subject clause violates Section 10, Article III of the Constitution on
non-impairment of contracts;
2. Whether or not the subject clause violate Section 1, Article III of the Constitution, and
Section 18, Article II and Section 3, Article XIII on labor as a protected sector.
HELD:
On the first issue.
The answer is in the negative. Petitioner’s claim that the subject clause unduly interferes
with the stipulations in his contract on the term of his employment and the fixed salary
package he will receive is not tenable.
The subject clause may not be declared unconstitutional on the ground that it impinges on
the impairment clause, for the law was enacted in the exercise of the police power of the
State to regulate a business, profession or calling, particularly the recruitment and
deployment of OFWs, with the noble end in view of ensuring respect for the dignity and
well-being of OFWs wherever they may be employed.
On the second issue.
The answer is in the affirmative.
To Filipino workers, the rights guaranteed under the foregoing constitutional provisions
translate to economic security and parity.
Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs.
However, a closer examination reveals that the subject clause has a discriminatory intent
against, and an invidious impact on, OFWs at two levels:
First, OFWs with employment contracts of less than one year vis-à-vis OFWs with
employment contracts of one year or more;
Second, among OFWs with employment contracts of more than one year; and
Third, OFWs vis-à-vis local workers with fixed-period employment;
The subject clause singles out one classification of OFWs and burdens it with a peculiar
disadvantage.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of
the right of petitioner and other OFWs to equal protection.
The subject clause “or for three months for every year of the unexpired term, whichever is
less” in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED
UNCONSTITUTIONAL.
Decision:
The Court's Ruling
The Court sustains petitioner on the first and second issues.
When the Court is called upon to exercise its power of judicial review of the acts of its co-
equals, such as the Congress, it does so only when these conditions obtain: (1) that there is
an actual case or controversy involving a conflict of rights susceptible of judicial
determination;47 (2) that the constitutional question is raised by a proper party48 and at
the earliest opportunity;49 and (3) that the constitutional question is the very lis mota of
the case,50otherwise the Court will dismiss the case or decide the same on some other
ground.51
Without a doubt, there exists in this case an actual controversy directly involving petitioner
who is personally aggrieved that the labor tribunals and the CA computed his monetary
award based on the salary period of three months only as provided under the subject
clause.
The constitutional challenge is also timely. It should be borne in mind that the requirement
that a constitutional issue be raised at the earliest opportunity entails the interposition of
the issue in the pleadings before a competent court, such that, if the issue is not raised in
the pleadings before that competent court, it cannot be considered at the trial and, if not
considered in the trial, it cannot be considered on appeal.52 Records disclose that the issue
on the constitutionality of the subject clause was first raised, not in petitioner's appeal with
the NLRC, but in his Motion for Partial Reconsideration with said labor tribunal,53 and
reiterated in his Petition for Certiorari before the CA.54Nonetheless, the issue is deemed
seasonably raised because it is not the NLRC but the CA which has the competence to
resolve the constitutional issue. The NLRC is a labor tribunal that merely performs a quasi-
judicial function – its function in the present case is limited to determining questions of fact
to which the legislative policy of R.A. No. 8042 is to be applied and to resolving such
questions in accordance with the standards laid down by the law itself;55 thus, its foremost
function is to administer and enforce R.A. No. 8042, and not to inquire into the validity of its
provisions. The CA, on the other hand, is vested with the power of judicial review or the
power to declare unconstitutional a law or a provision thereof, such as the subject
clause.56 Petitioner's interposition of the constitutional issue before the CA was
undoubtedly seasonable. The CA was therefore remiss in failing to take up the issue in its
decision.
The third condition that the constitutional issue be critical to the resolution of the case
likewise obtains because the monetary claim of petitioner to his lump-sum salary for the
entire unexpired portion of his 12-month employment contract, and not just for a period of
three months, strikes at the very core of the subject clause.
Thus, the stage is all set for the determination of the constitutionality of the subject clause.
Locus standi is “a right of appearance in a court of justice on a given
question.”[13] Specifically, it is “a party’s personal and substantial interest in a case where
he has sustained or will sustain direct injury as a result”[14] of the act being challenged, and
“calls for more than just a generalized grievance.”[15] The term “interest” refers to
material interest, as distinguished from one that is merely incidental.[16] The rationale for
requiring a party who challenges the validity of a law or international agreement to allege
such a personal stake in the outcome of the controversy is “to assure the concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.”[17]
1. Standards of Standing
When only private rights are involved, the proper parties who may bring the case to court
are those who stand to be benefited or injured by the judgment in the suit, or those entitled
to the avails of the suit.[41] In cases like Guingona and Morato, however, “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.”[42]The concept of legal standing arose from the need in these public or
constitutional litigations “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.”[43]
Different standards of standing apply depending on the question raised and the reliefs
prayed for. The direct injury standard, which requires that the party bringing the action “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,”[44] is the general rule. The other standards of
standing are exceptions to this general rule.[45] Some of these other standards were applied
by the Court in Morato to resolve the standing issue.
1. A. Citizen’s Standing
Every Filipino citizen has legal standing to institute a mandamus action to enforce a public
right, because “[w]hen a Mandamus proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen,
and therefore, part of the general ‘public’ which possesses the right.”[46] One such public
right is the right of the people to information on matters of public concern under Article III,
section 7 of the Constitution,[47] which is a self-executing provision.[48] In Morato, the
Court explained that the petitioners did not have citizen’s standing because the
Constitutional provisions they invoked “are not … self executing provisions, the disregard of
which can give rise to a cause of action in the courts,”[49] and “do not embody judicially
enforceable constitutional rights but guidelines for legislation.”[50]
1. B. Taxpayer’s Standing
Taxpayer standing was first[51] recognized by the Supreme Court on 29 December 1960 in
the seminal Pascual v. Secretary of Public Works and Communications,[52] where the Court
adopted the American “rule recognizing the right of taxpayers to assail the constitutionality
of a legislation appropriating local or state public funds.”[53] Since then, the rule is that “a
taxpayer has personality to restrain unlawful expenditure of public funds,”[54] whether the
expenditure is pursuant to a statute,[55] a presidential decree,[56] an executive
issuance,[57] a presidential authorization,[58] or an executive order.[59] In Morato, the
Court ruled that petitioners did not have taxpayer standing because there was “no allegation
that public funds [were] being misspent so as to make [the] action a public one.”[60]
1. C. Legislator’s Standing
Legislators have been accorded standing to sue when they “claim that the official action
complained of infringes upon their prerogatives as legislators.”[61] This is because an act
“which injures the institution of Congress causes a derivative but nonetheless substantial
injury, which can be questioned by a member of Congress,”[62] whether the act was done
by an administrative agency,[63] the President,[64] a Constitutional Convention,[65] or any
other instrumentality of the government. In Morato, the Supreme Court observed that “the
complaint [was] not grounded on the impairment of the powers of Congress,”[66] and,
accordingly, indicated that the two senators and congressman did not have standing.
 1. D. Other Standards
There are other standards of standing which were not applicable in Morato. One such
standard is that which accords voter’s standing upon the rationale that “a voter whose right
of suffrage is allegedly impaired…is entitled to judicial redress.”[67] Another such standard
is that which confers “personality to sue in behalf of the succeeding generations … based on
the concept of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned.”[68] Some of these standards, e.g., government standing
and jus tertii standing, are discussed in Part VII of this work.
1. E. The Doctrine of Transcendental Importance
Noticeably omitted in the ponencia’s discussion in Morato was the one justification of
the Guingona majority for resolving the issue of standing in the petitioners’ favor: that a
“party’s standing … is a procedural technicality” which may be “set aside in view of the
importance of the issues raised.”[69] This doctrine of transcendental importance, which cuts
through all standards of standing, is discussed more fully in Parts V and VI of this work.
IBP vs. Zamora, G.R. No. 141284 G.R. No. 141284. August 15, 2000.
Facts: At bar is a special civil action for certiorari and prohibition with prayer for issuance of
a temporary restraining order seeking to nullity on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines
(the Marines) to join the Philippine National Police (the "PNP") in visibility patrols around
the metropolis. Formulated Letter of Instruction 02/2000 1 (the "LOI") which detailed the
manner by which the joint visibility patrols, called Task Force Tulungan, would be
conducted. 2 Task Force Tulungan was placed under the leadership of the Police Chief of
Metro Manila through a sustained street patrolling to minimize or eradicate all forms of
high-profile crimes especially those perpetrated by organized crime syndicates whose
members include those that are well-trained, disciplined and well-armed active or former
PNP/Military personnel.
ISSUE/s: (1) Whether or not petitioner has legal standing; (2) Whether or not the Presidents
factual determination of the necessity of calling the armed forces is subject to judicial review;
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of
standing to raise the issues in the petition. Second, the President did not commit grave abuse
of discretion amounting to lack or excess of jurisdiction nor did he commit a violation of the
civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to
wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its
power of judicial review only if the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (2) a personal and substantial interest of the
party raising the constitutional question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question is the lis mota of the case.[12]
The IBP has not sufficiently complied with the requisites of standing in this case.
Legal standing or locus standi has been defined as a personal and substantial interest in
the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged.[13] The term interest means a material interest,
an interest in issue affected by the decree, as distinguished from mere interest in the
question involved, or a mere incidental interest.[14] The gist of the question of standing is
whether a party alleges such personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions.[15]
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP
asserts no other basis in support of its locus standi. The mere invocation by the IBP of its duty
to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. Based on the standards above-stated, the IBP has failed to
present a specific and substantial interest in the resolution of the case. Its fundamental
purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the standards
of the law profession and to improve the administration of justice is alien to, and cannot be
affected by the deployment of the Marines. It should also be noted that the interest of the
National President of the IBP who signed the petition, is his alone, absent a formal board
resolution authorizing him to file the present action. To be sure, members of the BAR, those
in the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming
that it has duly authorized the National President to file the petition, has not shown any
specific injury which it has suffered or may suffer by virtue of the questioned governmental
act. Indeed, none of its members, whom the IBP purportedly represents, has sustained any
form of injury as a result of the operation of the joint visibility patrols. Neither is it alleged
that any of its members has been arrested or that their civil liberties have been violated by
the deployment of the Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten Philippine democratic institutions
and may cause more harm than good in the long run. Not only is the presumed injury not
personal in character, it is likewise too vague, highly speculative and uncertain to satisfy the
requirement of standing. Since petitioner has not successfully established a direct and
personal injury as a consequence of the questioned act, it does not possess the personality
to assail the validity of the deployment of the Marines. This Court, however, does not
categorically rule that the IBP has absolutely no standing to raise constitutional issues now
or in the future. The IBP must, by way of allegations and proof, satisfy this Court that it has
sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to
take cognizance of a suit which does not satisfy the requirement of legal standing when
paramount interest is involved.[16] In not a few cases, the Court has adopted a liberal
attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people.[17] Thus, when the issues raised are of paramount
importance to the public, the Court may brush aside technicalities of procedure.[18] In this
case, a reading of the petition shows that the IBP has advanced constitutional issues which
deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents.Moreover, because peace and order are under constant threat and lawless
violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency
problem, the legal controversy raised in the petition almost certainly will not go away. It will
stare us in the face again. It, therefore, behooves the Court to relax the rules on standing and
to resolve the issue now, rather than later.
ITF VS. COMELEC
Facts: On June 7, 1995, Congress passed Republic Act 8046, which authorized Comelec
to conduct a nationwide demonstration of a computerized election system and allowed the
poll body to pilot-test the system in the March 1996 elections in the Autonomous Region in
Muslim Mindanao (ARMM).
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization
program for the 2004 elections. It resolved to conduct biddings for the three (3) phases of
its Automated Election System; namely, Phase I — Voter Registration and Validation
System; Phase II — Automated Counting and Canvassing System; and Phase III — Electronic
Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172,
which allocated the sum of P2.5 billion to fund the AES for the May 10, 2004 elections. Upon
the request of Comelec, she authorized the release of an additional P500 million.
On January 28, 2003, the Commission issued an "Invitation to Apply for Eligibility and to
Bid".
On May 29, 2003, five individuals and entities (including the herein Petitioners
Information Technology Foundation of the Philippines, represented by its president,
Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter to Comelec Chairman Benjamin
Abalos Sr. They protested the award of the Contract to Respondent MPC "due to glaring
irregularities in the manner in which the bidding process had been conducted." Citing
therein the noncompliance with eligibility as well as technical and procedural requirements
(many of which have been discussed at length in the Petition), they sought a re-bidding.
Issue: Whether the bidding process was unconstitutional;
Whether the awarding of the contract was unconstitutional;
Whether the petitioner has standing; and
Whether the petition is premature.
Held: WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL and VOID
Comelec Resolution No. 6074 awarding the contract for Phase II of the CAES to Mega
Pacific Consortium (MPC). Also declared null and void is the subject Contract executed
between Comelec and Mega Pacific eSolutions (MPEI). 55 Comelec is further ORDERED to
refrain from implementing any other contract or agreement entered into with regard to
this project.
Ratio: Comelec awarded this billion-peso undertaking with inexplicable haste, without
adequately checking and observing mandatory financial, technical and legal requirements.
It also accepted the proferred computer hardware and software even if, at the time of the
award, they had undeniably failed to pass eight critical requirements designed to safeguard
the integrity of elections:
1. Awarded the Contract to MPC though it did not even participate in the bidding
2. Allowed MPEI to participate in the bidding despite its failure to meet the mandatory
eligibility requirements
3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the
issuance by the BAC of its Report, which formed the basis of the assailed Resolution, only
on April 21, 2003 31
4. Awarded the Contract, notwithstanding the fact that during the bidding process,
there were violations of the mandatory requirements of RA 8436 as well as those set forth
in Comelec's own Request for Proposal on the automated election system IHaECA
5. Refused to declare a failed bidding and to conduct a re-bidding despite the failure of
the bidders to pass the technical tests conducted by the Department of Science and
Technology
6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding for
the automated counting machines
After reviewing the slew of pleadings as well as the matters raised during the Oral
Argument, the Court deems it sufficient to focus discussion on the following major areas of
concern that impinge on the issue of grave abuse of discretion:
A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder
B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests
C. Remedial measures and re-testings undertaken by Comelec and DOST after the award,
and their effect on the present controversy
In view of the bidding process
Unfortunately, the Certifications from DOST fail to divulge in what manner and by what
standards or criteria the condition, performance and/or readiness of the machines were re-
evaluated and re-appraised and thereafter given the passing mark.
The Automated Counting and Canvassing Project involves not only the manufacturing of
the ACM hardware but also the development of three (3) types of software, which are
intended for use in the following:
1. Evaluation of Technical Bids
2. Testing and Acceptance Procedures
3. Election Day Use."
In short, Comelec claims that it evaluated the bids and made the decision to award the
Contract to the "winning" bidder partly on the basis of the operation of the ACMs running a
"base" software. That software was therefore nothing but a sample or "demo" software,
which would not be the actual one that would be used on election day.
What then was the point of conducting the bidding, when the software that was the
subject of the Contract was still to be created and could conceivably undergo innumerable
changes before being considered as being in final form?
In view of awarding of contract
The public bidding system designed by Comelec under its RFP (Request for Proposal for
the Automation of the 2004 Election) mandated the use of a two-envelope, two-stage
system. A bidder's first envelope (Eligibility Envelope) was meant to establish its eligibility
to bid and its qualifications and capacity to perform the contract if its bid was accepted,
while the second envelope would be the Bid Envelope itself.
The Eligibility Envelope was to contain legal documents such as articles of incorporation,
business registrations, licenses and permits, mayor's permit, VAT certification, and so forth;
technical documents containing documentary evidence to establish the track record of the
bidder and its technical and production capabilities to perform the contract; and financial
documents, including audited financial statements for the last three years, to establish the
bidder's financial capacity.
However, there is no sign whatsoever of any joint venture agreement, consortium
agreement, memorandum of agreement, or business plan executed among the members of
the purported consortium.So, it necessarily follows that, during the bidding process,
Comelec had no basis at all for determining that the alleged consortium really existed and
was eligible and qualified; and that the arrangements among the members were
satisfactory and sufficient to ensure delivery on the Contract and to protect the
government's interest.
In view of standing
On the other hand, petitioners — suing in their capacities as taxpayers, registered voters
and concerned citizens — respond that the issues central to this case are "of
transcendental importance and of national interest." Allegedly, Comelec's flawed bidding
and questionable award of the Contract to an unqualified entity would impact directly on
the success or the failure of the electoral process. Thus, any taint on the sanctity of the
ballot as the expression of the will of the people would inevitably affect their faith in the
democratic system of government. Petitioners further argue that the award of any contract
for automation involves disbursement of public funds in gargantuan amounts; therefore,
public interest requires that the laws governing the transaction must be followed strictly.
Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of
"illegal disbursement of public funds," 22 or if public money is being "deflected to any
improper purpose"; 23 or when petitioners seek to restrain respondent from "wasting
public funds through the enforcement of an invalid or unconstitutional law."
In view of prematurity
The letter addressed to Chairman Benjamin Abalos Sr. dated May 29, 2003 28 serves to
eliminate the prematurity issue as it was an actual written protest against the decision of
the poll body to award the Contract. The letter was signed by/for, inter alia, two of herein
petitioners: the Information Technology Foundation of the Philippines, represented by its
president, Alfredo M. Torres; and Ma. Corazon Akol. Such letter-protest is sufficient
compliance with the requirement to exhaust administrative remedies particularly because it
hews closely to the procedure outlined in Section 55 of RA 9184.
Paat v. Court of Appeals enumerates the instances when the rule on exhaustion of
administrative remedies may be disregarded, as follows:
"(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or excess of
jurisdiction,
(4) when there is estoppel on the part of the administrative agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter ego of the
President bears the implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy, and
(11) when there are circumstances indicating the urgency of judicial intervention."
Jumamil vs Café
We find petitioners aforesaid submission utterly devoid of merit. It is, to say the least,
questionable whether or not a special civil action for declaratory relief can be filed in
relation to a contract by persons who are not parties thereto. Under Sec. 1 of Rule 64 of
the Rules of Court, any person interested under a deed, will, contract, or other written
instruments may bring an action to determine any question of the contract, or validly
arising under the instrument for a declaratory (sic) of his rights or duties thereunder.
Since contracts take effect only between the parties (Art. 1311) it is quite plain that one
who is not a party to a contract can not have the interest in it that the rule requires as a
basis for declaratory reliefs (PLUM vs. Santos, 45 SCRA 147).
Following this ruling, the petitioners were not parties in the agreement for
the award of the market stalls by the public respondents, in the public
market of Panabo, Davao, and since the petitioners were not parties to the
award of the market stalls and whose rights are never affected by merely
stating that they are taxpayers, they have no legal interest in the
controversy and they are not, therefore, entitled to bring an action for
declaratory relief.[18]
WHEREFORE, the petition of the petitioners as taxpayers being
without merit and not in consonance with law, is hereby ordered DISMISSED.
As to the counterclaim for damages, the same not having been
actually and fully proven, the Court gives no award as to the same. It is not
amiss to state here that the petitioners agreed to be bound by the outcome
of Special Civil Case No. 89-10.
However, for unnecessarily dragging into Court the fifty-seven (57)
private respondents who are bonafide businessmen and stall holders in the
public market of Panabo, it is fitting and proper for the petitioners to be
ordered payment of attorneys fees.
Accordingly, the herein petitioners are ordered to pay ONE
THOUSAND (P1,000.00) PESOS EACH to the 57 private respondents, as
attorneys fees, jointly and severally, and for them to pay the costs of this suit.
SO ORDERED.[19]
From this adverse decision, petitioner again appealed to the Court of Appeals in CA-
G.R. CV No. 35082 which is now before us for review.
The appellate court, yet again, affirmed the RTC decision and held that:
Res judicata does not set in a case dismissed for lack of capacity to
sue, because there has been no determination on the merits. Neither does
the law of the case apply. However, the court a quo took judicial notice of the
fact that petitioners agreed to be bound by the outcome of Special Civil Case
No. 89-10. Allegans contraria non est audiendus. (He is not to be heard who
alleges things contradictory to each other.) It must be here observed that
petitioners-appellants were the ones who manifested that it would be
practical to await the decision of the Supreme Court in their petition for
certiorari, for after all the facts, circumstances and issues in that case, are
exactly the same as in the case that is here appealed. Granting that they may
evade such assumption, a careful evaluation of the case would lead Us to the
same conclusion: that the case for declaratory relief is dismissible. As
enumerated by Justice Regalado in his Remedial Law Compendium, the
requisites of an action for declaratory relief are:
(a) The subject matter of the controversy must be a deed, will,
contract or other written instrument, statute, executive order or regulation,
or ordinance;
(b) The terms of said documents and the validity thereof are
doubtful and require judicial construction;
(c) There must have been no breach of the documents in question;
(d) There must be an actual justiciable controversy or the ripening
seeds of one between persons whose interests are adverse;
(e) The issue must be ripe for judicial determination; and
(f) Adequate relief is not available through other means or other
forms of action or proceeding.
In Tolentino vs. Board of Accountancy, et al, 90 Phil. 83, 88, the
Supreme Court ratiocinated the requisites of justiciability of an action for
declaratory relief by saying that the court must be satisfied that an actual
controversy, or the ripening seeds of one, exists between parties, all of
whom are sui juris and before the court, and that the declaration sought will
be a practical help in ending the controversy.
The petition must show an active antagonistic assertion of a legal
right on one side and a denial thereof on the other concerning a real, and not
a mere theoretical question or issue. The question is whether the facts
alleged a substantial controversy between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the issuance of a
declaratory relief. In GSISEA and GSISSU vs. Hon. Alvendia etc. and GSIS, 108
Phil. 505, the Supreme Court ruled a declaratory relief improper or
unnecessary when it appears to be a moot case, since it seeks to get a
judgment on a pretended controversy, when in reality there is none.
In Kawasaki Port Service Corporation vs. Amores, 199 SCRA 230, citing Dy Poco
vs. Commissioner of Immigration, et al., 16 SCRA 618, the rule was stated:
where a declaratory judgment as to a disputed fact would be determinative
of issues rather than a construction of definite stated rights, statuses and
other relations, commonly expressed in a written instrument, the case is not
one for declaratory judgment.
Indeed, in its true light, the present petition for declaratory relief
seems to be no more than a request for an advisory opinion to which courts
in this and other jurisdiction have cast a definite aversion. The ordinances
being assailed are appropriation ordinances. The passage of the ordinances
were pursuant to the public purpose of constructing market stalls. For the
exercise of judicial review, the governmental act being challenged must have
had an adverse effect on the person challenging it, and the person
challenging the act, must have standing to challenge, i.e., in the categorical
and succinct language of Justice Laurel, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement. Standing is a special concern in
constitutional law because in some cases suits are brought not by parties
who have been personally injured by the operation of a law or by official
action taken, but by concerned citizens, taxpayers or voters who actually sue
in the public interest. Hence the question in standing is whether such parties
have alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues
upon which the court largely depends for illumination of difficult
constitutional questions.
A careful analysis of the records of the case at bar would disclose that
petitioners-appellants have suffered no wrong under the terms of the
ordinances being assailed and, naturally need no relief in the form they now
seek to obtain. Judicial exercise cannot be exercised in vacuo. The policy of
the courts is to avoid ruling on a constitutional question and to presume that
the acts of the political departments are valid in the absence of a clear and
unmistakable showing to the contrary. To doubt is to sustain. The issue is not
the ordinances themselves, but the award of the market stalls to the private
respondents on the strength of the contracts individually executed by them
with Mayor Cafe. To reiterate, a person who is not a party to a contract
cannot file a petition for declaratory relief and seek judicial interpretation of
such contract (Atlas Consolidated Mining Corp. vs. Court of Appeals, 182
SCRA 166). Not having established their locus standi, we see no error
committed by the court a quo warranting reversal of the appealed decision.
With the foregoing, the assailed Decision of Branch 4, Regional Trial
Court of Panabo Davao dated 26 November 1990 in Sp. Civil Action No. 89-1
is hereby AFFIRMED.
SO ORDERED.[20]
Thus, both the RTC and the CA dismissed the case on the ground of petitioners lack
of legal standing and the parties agreement to be bound by the decision in CA G.R. SP. No.
20424.
The issues to be resolved are the following:
(1) whether the parties were bound by the outcome in CA G.R. SP. No. 20424;
(2) whether petitioner had the legal standing to bring the petition for declaratory
relief;
(3) whether Resolution Nos. 7 and 49 were unconstitutional; and
(4) whether petitioner should be held liable for damages.
LOCUS STANDI AND THE
CONSTITUTIONALITY ISSUE
We will first consider the second issue. The petition for declaratory relief challenged
the constitutionality of the subject resolutions. There is an unbending rule that courts will
not assume jurisdiction over a constitutional question unless the following requisites are
satisfied: (1) there must be an actual case calling for the exercise of judicial review; (2) the
question before the Court must be ripe for adjudication; (3) the person challenging the
validity of the act must have standing to do so; (4) the question of constitutionality must
have been raised at the earliest opportunity, and (5) the issue of constitutionality must be
the very lis mota of the case.[21]
Legal standing or locus standi is a partys personal and substantial interest in a case
such that he has sustained or will sustain direct injury as a result of the governmental act
being challenged. It calls for more than just a generalized grievance. The term interest means
a material interest, an interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest.[22]Unless a persons
constitutional rights are adversely affected by the statute or ordinance, he has no legal
standing.
The CA held that petitioner had no standing to challenge the two
resolutions/ordinances because he suffered no wrong under their terms. It also concluded
that the issue (was) not the ordinances themselves but the award of the market stalls to the
private respondents on the strength of the contracts individually executed by them with
Mayor Cafe. Consequently, it ruled that petitioner, who was not a party to the lease
contracts, had no standing to file the petition for declaratory relief and seek judicial
interpretation of the agreements.
We do not agree. Petitioner brought the petition in his capacity as taxpayer of the
Municipality of Panabo, Davao del Norte[23] and not in his personal capacity. He was
questioning the official acts of the public respondents in passing the ordinances and entering
into the lease contracts with private respondents. A taxpayer need not be a party to the
contract to challenge its validity.[24] Atlas Consolidated Mining & Development Corporation v.
Court of Appeals[25] cited by the CA does not apply because it involved contracts between two
private parties.
Parties suing as taxpayers must specifically prove sufficient interest in preventing the
illegal expenditure of
money raised by taxation.[26] The expenditure of public funds by an officer of the State for
the purpose of executing an unconstitutional act constitutes a misapplication of such
funds.[27] The resolutions being assailed were appropriations ordinances. Petitioner alleged
that these ordinances were passed for the business, occupation, enjoyment and benefit of
private respondents[28] (that is, allegedly for the private benefit of respondents) because
even before they were passed, respondent Mayor Cafe and private respondents had already
entered into lease contracts for the construction and award of the market stalls.[29] Private
respondents admitted they deposited P40,000 each with the municipal treasurer, which
amounts were made available to the municipality during the construction of the stalls. The
deposits, however, were needed to ensure the speedy completion of the stalls after the
public market was gutted by a series of fires.[30] Thus, the award of the stalls was necessarily
limited only to those who advanced their personal funds for their construction.[31]
Petitioner did not seasonably allege his interest in preventing the illegal expenditure
of public funds or the specific injury to him as a result of the enforcement of the questioned
resolutions and contracts. It was only in the Remark to Comment he filed in this Court did he
first assert that he (was) willing to engage in business and (was) interested to occupy a
market stall.[32] Such claim was obviously an afterthought.
Be that as it may, we have on several occasions relaxed the application of these rules
on legal standing:
In not a few cases, the Court has liberalized the locus standi
requirement when a petition raises an issue of transcendental significance or
paramount importance to the people. Recently, after holding that the IBP
had no locus standi to bring the suit, the Court in IBP v. Zamora nevertheless
entertained the Petition therein. It noted that "the IBP has advanced
constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents."[33]
―oOo―
Objections to a taxpayer's suit for lack of sufficient personality,
standing or interest are procedural matters. Considering the importance to
the public of a suit assailing the constitutionality of a tax law, and in keeping
with the Court's duty, specially explicated in the 1987 Constitution, to
determine whether or not the other branches of the Government have kept
themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them, the Supreme Court may brush
aside technicalities of procedure and take cognizance of the suit.[34]
―oOo―
There being no doctrinal definition of transcendental importance, the
following determinants formulated by former Supreme Court Justice
Florentino P. Feliciano are instructive: (1) the character of the funds or other
assets involved in the case; (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a
more direct and specific interest in raising the questions being raised.[35]
But, even if we disregard petitioners lack of legal standing, this petition must still fail.
The subject resolutions/ordinances appropriated a total of P2,280,000 for the construction
of the public market stalls. Petitioner alleges that these ordinances were discriminatory
because, even prior to their enactment, a decision had already been made to award the
market stalls to the private respondents who deposited P40,000 each and who were either
friends or relatives of the public respondents. Petitioner asserts that there (was) no
publication or invitation to the public that this contract (was) available to all who (were)
interested to own a stall and (were) willing to deposit P40,000.[36] Respondents, however,
counter that the public respondents act of entering into this agreement was authorized by
the Sangguniang Bayan of Panabo per Resolution No. 180 dated October 10, 1988[37] and that
all the people interested were invited to participate in investing their savings.[38]
We note that the foregoing was a disputed fact which the courts below did not
resolve because the case was dismissed on the basis of petitioners lack of legal standing.
Nevertheless, petitioner failed to prove the subject ordinances and agreements to be
discriminatory. Considering that he was asking this Court to nullify the acts of the local
political department of Panabo, Davao del Norte, he should have clearly established that
such ordinances operated unfairly against those who were not notified and who were thus
not given the opportunity to make their deposits. His unsubstantiated allegation that the
public was not notified did not suffice. Furthermore, there was the time-honored
presumption of regularity of official duty, absent any showing to the contrary.[39] And this is
not to mention that:
The policy of the courts is to avoid ruling on constitutional questions
and to presume that the acts of the political departments are valid, absent a
clear and unmistakable showing to the contrary. To doubt is to sustain. This
presumption is based on the doctrine of separation of powers. This means
that the measure had first been carefully studied by the legislative and
executive departments and found to be in accord with the Constitution
before it was finally enacted and approved.[40]
Therefore, since petitioner had no locus standi to
question the ordinances, there is no need for us to discuss the constitutionality of said
enactments.
Arceta vs Mangrobang
After minute scrutiny of petitioners submissions, we find that the basic issue being raised in
these special civil actions for certiorari, prohibition, and mandamus concern the
unconstitutionality or invalidity of B.P. Blg. 22. Otherwise put, the petitions constitute an
oblique attack on the constitutionality of the Bouncing Checks Law, a matter already
passed upon by the Court through Justice (later Chief Justice) Pedro Yap almost two
decades ago. Petitioners add, however, among the pertinent issues one based on the
observable but worrisome transformation of certain metropolitan trial courts into seeming
collection agencies of creditors whose complaints now clog the court dockets.
But let us return to basics. When the issue of unconstitutionality of a legislative act is raised,
it is the established doctrine that the Court may exercise its power of judicial review only if
the following requisites are present: (1) an actual and appropriate case and controversy
exists; (2) a personal and substantial interest of the party raising the constitutional
question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4)
the constitutional question raised is the very lis mota of the case.[7] Only when these
requisites are satisfied may the Court assume jurisdiction over a question of
unconstitutionality or invalidity of an act of Congress. With due regard to counsels spirited
advocacy in both cases, we are unable to agree that the abovecited requisites have been
adequately met.
Perusal of these petitions reveals that they are primarily anchored on Rule 65, Section 1[8]
of the 1997 Rules of Civil Procedure. In a special civil action of certiorari the only question
that may be raised is whether or not the respondent has acted without or in excess of
jurisdiction or with grave abuse of discretion.[9] Yet nowhere in these petitions is there any
allegation that the respondent judges acted with grave abuse of discretion amounting to
lack or excess of jurisdiction. A special civil action for certiorari will prosper only if a grave
abuse of discretion is manifested.[10]
Noteworthy, the instant petitions are conspicuously devoid of any attachments or annexes
in the form of a copy of an order, decision, or resolution issued by the respondent judges so
as to place them understandably within the ambit of Rule 65. What are appended to the
petitions are only copies of the Informations in the respective cases, nothing else.
Evidently, these petitions for a writ of certiorari, prohibition and mandamus do not qualify
as the actual and appropriate cases contemplated by the rules as the first requisite for the
exercise of this Courts power of judicial review. For as the petitions clearly show on their
faces petitioners have not come to us with sufficient cause of action.
Instead, it appears to us that herein petitioners have placed the cart before the horse,
figuratively speaking. Simply put, they have ignored the hierarchy of courts outlined in Rule
65, Section 4[11] of the 1997 Rules of Civil Procedure. Seeking judicial review at the earliest
opportunity does not mean immediately elevating the matter to this Court. Earliest
opportunity means that the question of unconstitutionality of the act in question should
have been immediately raised in the proceedings in the court below. Thus, the petitioners
should have moved to quash the separate indictments or moved to dismiss the cases in the
proceedings in the trial courts on the ground of unconstitutionality of B.P. Blg. 22. But the
records show that petitioners failed to initiate such moves in the proceedings below.
Needless to emphasize, this Court could not entertain questions on the invalidity of a
statute where that issue was not specifically raised, insisted upon, and adequately
argued.[12] Taking into account the early stage of the trial proceedings below, the instant
petitions are patently premature.
Nor do we find the constitutional question herein raised to be the very lis mota presented
in the controversy below. Every law has in its favor the presumption of constitutionality,
and to justify its nullification, there must be a clear and unequivocal breach of the
Constitution, and not one that is doubtful, speculative or argumentative.[13] We have
examined the contentions of the petitioners carefully; but they still have to persuade us
that B.P. Blg. 22 by itself or in its implementation transgressed a provision of the
Constitution. Even the thesis of petitioner Dy that the present economic and financial crisis
should be a basis to declare the Bouncing Checks Law constitutionally infirm deserves but
scant consideration. As we stressed in Lozano, it is precisely during trying times that there
exists a most compelling reason to strengthen faith and confidence in the financial system
and any practice tending to destroy confidence in checks as currency substitutes should be
deterred, to prevent havoc in the trading and financial communities. Further, while indeed
the metropolitan trial courts may be burdened immensely by bouncing checks cases now,
that fact is immaterial to the alleged invalidity of the law being assailed. The solution to the
clogging of dockets in lower courts lies elsewhere.
WHEREFORE, the instant petitions are DISMISSED for utter lack of merit.
SO ORDERED.
DOCTRINE OF OPERATIVE FACTS
The doctrine of operative facts means that before a law was declared unconstitutional, its
actual existence must be taken into account and whatever was done while the law was in
operation should be recognized as valid.
CLAUDIO S. YAP vs. THENAMARIS SHIP’S MANAGEMENT
AND INTERMARE MARITIME AGENCIES, INC.
FACTS: Claudio was employed by Vulture Shipping as electrician for a vessel. The contract
was for a duration of 12 months. On the 3rd month, he was illegally dismissed. The Court of
Appeal awarded him salaries for three months, however, on appeal, the clause “for three
months for every year of the unexpired term under Section 10 of RA 8042 was declared
unconstitutional for being violative of the rights of OFWs to equal protection of the law.
ISSUE: Whether the declaration of unconstitutionality of Section 10 of RA 8042 applies
retroactive to the present case.
HELD: NO. As a general rule, an unconstitutional act is not a law; it confers no rights; it
imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has
not been passed at all. An exception to this is the doctrine of operative fact. The doctrine is
applicable when a declaration of unconstitutionality will impose an undue burden on those
who have relied on the invalid law. Thus, if it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or would put in
limbo the acts done by a municipality in reliance upon a law creating it.
Torrecampo v. MWSS
Doctrine: Despite the presence of judicial power under Article I, Section VIII of the
Constitution, a review of Executive policy is not under the jurisdiction of the courts for such
policies lies only within the wisdom of the Executive branch.
The Facts
Torrecampo's constituents approached him to report that personnel and heavy equipment
from the DPWH entered a portion of their Barangay to implement the C-5 Road Extension
Project over Lot Nos. 42-A-4, 42-A-6 and 42-A-4. Torrecampo Alleged that if the MWSS and
the DPWH are allowed to continue and complete the C-5 Road Extension Project, 3
aqueducts of the MWSS supplying water to 8 million Metro Manila residents will be put at
great risk. He Insisted that the RIPADA area is a better alternative to subject
lots. Torrecampo thus filed the present petition.
This Court required respondents to comment. A status quo order was issued. The hearing
regarding the urgent application for ex-parte temporary restraining order and/or writ of
preliminary injunction was set on 6 July 2009.
Atty. Villamor, Jr. contended that grave injustice and irreparable injury to would result should
the petition be denied, the constitutional right to health would be violated, and that the
petition was filed directly with the SC because lower courts are prohibited from issuing
restraining orders and injunctions against government infrastructure projects pursuant to
R.A 8975.
Asst. Solicitor General Panga, for respondent DPWH, asserts that petitioner's case does not
fall under an exception and thus should have followed the principle of hierarchy of courts.
Atty. Agra for respondent MWSS finds as premature the filing of the petition for injunction
as there is yet no road expansion project to be implemented, the project has yet to pass prior
review by the MWSS; under the premises, there is yet no justiciable controversy.
The Court then required all parties to submit their memoranda, further, the status quo order
was lifted since no grave injustice or irreparable injury would arise.
On 12 March 2009, MWSS issued Board Resolution No. 2009-052 and allowed DPWH to use
the 60 Meter Right-of-Way for preliminary studies in the implementation of the C-5 Road
Extension Project. DPWH entered the said properties of the MWSS on 30 June 2009.
ISSUE: Whether respondents should be enjoined from commencing with and implementing the
C-5 Road Extension Project
HELD: The petition must fail.
Torrecampo seeks judicial review of a question of Executive policy, a matter outside
this Court's jurisdiction. Here, the issue is dependent upon the wisdom, not legality, of a
particular measure. Thus, Torrecampo wants this Court to determine whether the Tandang
Sora area is a better alternative to the RIPADA area for the C-5 Road Extension Project. Such
determination belongs to the Executive branch and cannot be touched upon by this Court.
The exception to this rule applies when there is grave abuse of discretion. In this case,
however, the DPWH still has to conduct the proper study to determine whether a road can
be safely constructed on land beneath which runs the aqueducts. Without such study, the
MWSS, which owns the land, cannot decide whether to allow the DPWH to construct the
road. Absent such DPWH study and MWSS decision, no grave abuse of discretion amounting
to lack of jurisdiction can be alleged against or attributed to respondents warranting the
exercise of this Court's extraordinary certiorari power.
PLANTERS PRODUCTS VS FERTIPHIL
Petitioner PPI and private respondent Fertiphil are private corporations incorporated under
Philippine laws. They are both engaged in the importation and distribution of fertilizers,
pesticides and agricultural chemicals.
On June 3, 1985, then President Ferdinand Marcos, exercising his legislative powers, issued
LOI No. 1465 which provided, among others, for the imposition of a capital recovery
component (CRC) on the domestic sale of all grades of fertilizers in the Philippines. The LOI
provides:
The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing
formula a capital contribution component of not less than P10 per bag. This capital
contribution shall be collected until adequate capital is raised to make PPI viable. Such
capital contribution shall be applied by FPA to all domestic sales of fertilizers in the
Philippines.
Pursuant to the LOI, Fertiphil paid P10 for every bag of fertilizer it sold in the domestic
market to the Fertilizer and Pesticide Authority (FPA). FPA then remitted the amount
collected to the Far East Bank and Trust Company, the depositary bank of PPI. Fertiphil
paid P6,689,144 to FPA from July 8, 1985 to January 24, 1986.
After the 1986 Edsa Revolution, FPA voluntarily stopped the imposition of the P10
levy. With the return of democracy, Fertiphil demanded from PPI a refund of the amounts
it paid under LOI No. 1465, but PPI refused to accede to the demand.
Unreasonable, oppressive, invalid and an unlawful imposition that amounted to a denial of
due process of law. Fertiphil alleged that the LOI solely favored PPI, a privately owned
corporation, which used the proceeds to maintain its monopoly of the fertilizer industry.
In its Answer, FPA, through the Solicitor General, countered that the issuance of LOI No.
1465 was a valid exercise of the police power of the State in ensuring the stability of the
fertilizer industry in the country. It also averred that Fertiphil did not sustain any damage
from the LOI because the burden imposed by the levy fell on the ultimate consumer, not
the seller.
Issues:
THE CONSTITUTIONALITY OF LOI 1465 CANNOT BE COLLATERALLY ATTACKED AND BE
DECREED VIA A DEFAULT JUDGMENT IN A CASE FILED FOR COLLECTIONAND DAMAGES
WHERE THE ISSUE OF CONSTITUTIONALITY IS NOT THE VERY LIS MOTA OF THE
CASE. NEITHER CAN LOI 1465 BE CHALLENGED BY ANY PERSON OR ENTITY WHICH HAS
NO STANDING TO DO SO.
In this jurisdiction,SC adopted the “direct injury test” to determine locus standi in public
suits. In People v. Vera, it was held that a person who impugns the validity of a statute
must have “a personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result.” The “direct injury test” in public suits is similar to the
“real party in interest” rule for private suits under Section 2, Rule 3 of the 1997 Rules of Civil
Procedure.
Recognizing that a strict application of the “direct injury” test may hamper public interest,
this Court relaxed the requirement in cases of “transcendental importance” or with “far
reaching implications.” Being a mere procedural technicality, it has also been held that
locus standi may be waived in the public interest.
Whether or not the complaint for collection is characterized as a private or public suit,
Fertiphil has locus standi to file it. Fertiphil suffered a direct injury from the enforcement of
LOI No. 1465. It was required, and it did pay, the P10 levy imposed for every bag of fertilizer
sold on the domestic market. It may be true that Fertiphil has passed some or all of the levy
to the ultimate consumer, but that does not disqualify it from attacking the
constitutionality of the LOI or from seeking a refund. As seller, it bore the ultimate burden
of paying the levy. It faced the possibility of severe sanctions for failure to pay the
levy. The fact of payment is sufficient injury to Fertiphil.
Moreover, Fertiphil suffered harm from the enforcement of the LOI because it was
compelled to factor in its product the levy. The levy certainly rendered the fertilizer
products of Fertiphil and other domestic sellers much more expensive. The harm to their
business consists not only in fewer clients because of the increased price, but also in
adopting alternative corporate strategies to meet the demands of LOI No. 1465. Fertiphil
and other fertilizer sellers may have shouldered all or part of the levy just to be competitive
in the market. The harm occasioned on the business of Fertiphil is sufficient injury for
purposes of locus standi.
II
LOI 1465, BEING A LAW IMPLEMENTED FOR THE PURPOSE OF ASSURING THE FERTILIZER
SUPPLY AND DISTRIBUTION IN THE COUNTRY, AND FOR BENEFITING A FOUNDATION
CREATED BY LAW TO HOLD IN TRUST FOR MILLIONS OF FARMERS THEIR STOCK
OWNERSHIP IN PPI CONSTITUTES A VALID LEGISLATION PURSUANT TO THE EXERCISE OF
TAXATION AND POLICE POWER FOR PUBLIC PURPOSES.
The levy was imposed to pay the corporate debt of PPI. Fertiphil also argues that, even if
the LOI is enacted under the police power, it is still unconstitutional because it did not
promote the general welfare of the people or public interest.
Police power and the power of taxation are inherent powers of the State. These powers
are distinct and have different tests for validity. Police power is the power of the State to
enact legislation that may interfere with personal liberty or property in order to promote
the general welfare, while the power of taxation is the power to levy taxes to be used for
public purpose. The main purpose of police power is the regulation of a behavior or
conduct, while taxation is revenue generation. The “lawful subjects” and “lawful means”
tests are used to determine the validity of a law enacted under the police power. The
power of taxation, on the other hand, is circumscribed by inherent and constitutional
limitations.
While it is true that the power of taxation can be used as an implement of police power, the
primary purpose of the levy is revenue generation. If the purpose is primarily revenue, or if
revenue is, at least, one of the real and substantial purposes, then the exaction is properly
called a tax.
III
THE AMOUNT COLLECTED UNDER THE CAPITAL RECOVERY COMPONENT WAS REMITTED
TO THE GOVERNMENT, AND BECAME GOVERNMENT FUNDS PURSUANT TO AN EFFECTIVE
AND VALIDLY ENACTED LAW WHICH IMPOSED DUTIES AND CONFERRED RIGHTS BY
VIRTUE OF THE PRINCIPLE OF “OPERATIVEFACT” PRIOR TO ANY DECLARATION OF
UNCONSTITUTIONALITY OF LOI 1465.
The general rule is that an unconstitutional law is void. It produces no rights, imposes no
duties and affords no protection. It has no legal effect. It is, in legal contemplation,
inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the
levy. All levies paid should be refunded in accordance with the general civil code principle
against unjust enrichment. The general rule is supported by Article 7 of the Civil Code,
which provides:
ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former shall be
void and the latter shall govern.
Notes:
An inherent limitation on the power of taxation is public purpose. Taxes are exacted only
for a public purpose. They cannot be used for purely private purposes or for the exclusive
benefit of private persons. The reason for this is simple. The power to tax exists for the
general welfare; hence, implicit in its power is the limitation that it should be used only for a
public purpose. It would be a robbery for the State to tax its citizens and use the funds
generated for a private purpose. As an old United States case bluntly put it: “To lay with
one hand, the power of the government on the property of the citizen, and with the other
to bestow it upon favored individuals to aid private enterprises and build up private
fortunes, is nonetheless a robbery because it is done under the forms of law and is called
taxation.”
The doctrine of operative fact, as an exception to the general rule, only applies as a matter
of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that
the existence of a statute prior to a determination of unconstitutionality is an operative fact
and may have consequences which cannot always be ignored. The past cannot always be
erased by a new judicial declaration.
The doctrine is applicable when a declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law. Thus, it was applied to a criminal case
when a declaration of unconstitutionality would put the accused in double jeopardy or
would put in limbo the acts done by a municipality in reliance upon a law creating it.
The general rule is that an unconstitutional
law is void; the doctrine of operative fact is
inapplicable.
PPI also argues that Fertiphil cannot seek a refund even if LOI No. 1465 is declared
unconstitutional. It banks on the doctrine of operative fact, which provides that an
unconstitutional law has an effect before being declared unconstitutional. PPI wants to
retain the levies paid under LOI No. 1465 even if it is subsequently declared to be
unconstitutional.
We cannot agree. It is settled that no question, issue or argument will be entertained
on appeal, unless it has been raised in the court a quo.[53] PPI did not raise the applicability of
the doctrine of operative fact with the RTC and the CA. It cannot belatedly raise the issue
with Us in order to extricate itself from the dire effects of an unconstitutional law.
At any rate, We find the doctrine inapplicable. The general rule is that an
unconstitutional law is void. It produces no rights, imposes no duties and affords no
protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not been
passed.[54] Being void, Fertiphil is not required to pay the levy. All levies paid should be
refunded in accordance with the general civil code principle against unjust enrichment. The
general rule is supported by Article 7 of the Civil Code, which provides:

ART. 7. Laws are repealed only by subsequent ones, and their

violation or non-observance shall not be excused by disuse or custom or
practice to the contrary.

When the courts declare a law to be inconsistent with the

Constitution, the former shall be void and the latter shall govern.

The doctrine of operative fact, as an exception to the general rule, only applies as a
matter of equity and fair play.[55] It nullifies the effects of an unconstitutional law by
recognizing that the existence of a statute prior to a determination of unconstitutionality is
an operative fact and may have consequences which cannot always be ignored. The past
cannot always be erased by a new judicial declaration.[56]

The doctrine is applicable when a declaration of unconstitutionality will impose an

undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal
case when a declaration of unconstitutionality would put the accused in double
jeopardy[57] or would put in limbo the acts done by a municipality in reliance upon a law
creating it.[58]

Here, We do not find anything iniquitous in ordering PPI to refund the amounts paid
by Fertiphil under LOI No. 1465. It unduly benefited from the levy. It was proven during the
trial that the levies paid were remitted and deposited to its bank account. Quite the reverse,
it would be inequitable and unjust not to order a refund. To do so would unjustly enrich PPI
at the expense of Fertiphil. Article 22 of the Civil Code explicitly provides that every person
who, through an act of performance by another comes into possession of something at the
expense of the latter without just or legal ground shall return the same to him. We cannot
allow PPI to profit from an unconstitutional law. Justice and equity dictate that PPI must
refund the amounts paid by Fertiphil.

WHEREFORE, the petition is DENIED. The Court of Appeals Decision dated November 28,
2003 is AFFIRMED.

SO ORDERED.