G.R. No.
100150 January 5, 1994 A motion to dismiss,7 dated 10 September 1990, questioned
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO
ABELARDO, AND GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO,
AND OTHERS AS JOHN DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.
VITUG, J.:
The extent of the authority and power of the Commission on
Human Rights ("CHR") is again placed into focus in this
petition for prohibition, with prayer for a restraining order and
preliminary injunction. The petitioners ask us to prohibit
public respondent CHR from further hearing and investigating
CHR Case No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et
al."
The case all started when a "Demolition Notice," dated 9 July
1990, signed by Carlos Quimpo (one of the petitioners) in his
capacity as an Executive Officer of the Quezon City Integrated
Hawkers Management Council under the Office of the City
Mayor, was sent to, and received by, the private respondents
(being the officers and members of the North EDSA Vendors
Association, Incorporated). In said notice, the respondents
were given a grace-period of three (3) days (up to 12 July
1990) within which to vacate the questioned premises of North
EDSA.1Prior to their receipt of the demolition notice, the
private respondents were informed by petitioner Quimpo that
their stalls should be removed to give way to the "People's
Park".2 On 12 July 1990, the group, led by their President
Roque Fermo, filed a letter-complaint (Pinag-samang
Sinumpaang Salaysay) with the CHR against the petitioners,
asking the late CHR Chairman Mary Concepcion Bautista for
a letter to be addressed to then Mayor Brigido Simon, Jr., of
Quezon City to stop the demolition of the private respondents'
stalls, sari-sari stores, and carinderia along North EDSA. The
complaint was docketed as CHR Case No. 90-1580.3 On 23
July 1990, the CHR issued an Order, directing the petitioners
"to desist from demolishing the stalls and shanties at North
EDSA pending resolution of the vendors/squatters' complaint
before the Commission" and ordering said petitioners to
appear before the CHR.4
On the basis of the sworn statements submitted by the private
respondents on 31 July 1990, as well as CHR's own ocular
inspection, and convinced that on 28 July 1990 the petitioners
carried out the demolition of private respondents' stalls, sari-
sari stores and carinderia,5 the CHR, in its resolution of 1
August 1990, ordered the disbursement of financial assistance
of not more than P200,000.00 in favor of the private
respondents to purchase light housing materials and food
under the Commission's supervision and again directed the
petitioners to "desist from further demolition, with the
warning that violation of said order would lead to a citation for
contempt and arrest."6
CHR's jurisdiction. The motion also averred, among other
things, that:
1. this case came about due to the alleged violation by the
(petitioners) of the Inter-Agency Memorandum of Agreement
whereby Metro-Manila Mayors agreed on a moratorium in the
demolition of the dwellings of poor dwellers in Metro-Manila;
xxx xxx xxx
3. . . . , a perusal of the said Agreement (revealed) that the
moratorium referred to therein refers to moratorium in the
demolition of the structures of poor dwellers;
4. that the complainants in this case (were) not poor dwellers
but independent business entrepreneurs even this Honorable
Office admitted in its resolution of 1 August 1990 that the
complainants are indeed, vendors;
5. that the complainants (were) occupying government land,
particularly the sidewalk of EDSA corner North Avenue,
Quezon City; . . . and
6. that the City Mayor of Quezon City (had) the sole and
exclusive discretion and authority whether or not a certain
business establishment (should) be allowed to operate within
the jurisdiction of Quezon City, to revoke or cancel a permit,
if already issued, upon grounds clearly specified by law and
ordinance.8
During the 12 September 1990 hearing, the petitioners moved
for postponement, arguing that the motion to dismiss set for 21
September 1990 had yet to be resolved. The petitioners
likewise manifested that they would bring the case to the
courts.
On 18 September 1990 a supplemental motion to dismiss was
filed by the petitioners, stating that the Commission's authority
should be understood as being confined only to the
investigation of violations of civil and political rights, and that
"the rights allegedly violated in this case (were) not civil and
political rights, (but) their privilege to engage in business."9
On 21 September 1990, the motion to dismiss was heard and
submitted for resolution, along with the contempt charge that
had meantime been filed by the private respondents, albeit
vigorously objected to by petitioners (on the ground that the
motion to dismiss was still then unresolved).10
In an Order,11 dated 25 September 1990, the CHR cited the
petitioners in contempt for carrying out the demolition of the
stalls, sari-sari stores and carinderia despite the "order to
desist", and it imposed a fine of P500.00 on each of them.
On 1 March 1991,12 the CHR issued an Order, denying
petitioners' motion to dismiss and supplemental motion to
dismiss, in this wise:
Clearly, the Commission on Human Rights under its
constitutional mandate had jurisdiction over the complaint
filed by the squatters-vendors who complained of the gross
violations of their human and constitutional rights. The motion
to dismiss should be and is hereby DENIED for lack of
merit.13
The CHR opined that "it was not the intention of the
(Constitutional) Commission to create only a paper tiger
limited only to investigating civil and political rights, but it
(should) be (considered) a quasi-judicial body with the power
to provide appropriate legal measures for the protection of
human rights of all persons within the Philippines . . . ." It
added:
The right to earn a living is a right essential to one's right to
development, to life and to dignity. All these brazenly and
violently ignored and trampled upon by respondents with little
regard at the same time for the basic rights of women and
children, and their health, safety and welfare. Their actions
have psychologically scarred and traumatized the children,
who were witness and exposed to such a violent demonstration
of Man's inhumanity to man.
In an Order,14 dated 25 April 1991, petitioners' motion for
reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution15 of 25
June 1991; it was subsequently reinstated, however, in our
resolution16 of 18 June 1991, in which we also issued a
temporary restraining order, directing the CHR to "CEASE
and DESIST from further hearing CHR No. 90-1580."17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights"
of the private respondents whose stalls were demolished by
the petitioners at the instance and authority given by the
Mayor of Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to
the vendors affected by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-
General was excused from filing his comment for public
respondent CHR. The latter thus filed its own
comment,18 through Hon. Samuel Soriano, one of its
Commissioners. The Court also resolved to dispense with the
comment of private respondent Roque Fermo, who had since
failed to comply with the resolution, dated 18 July 1991,
requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution.19 It was formally constituted by then President
Corazon Aquino via Executive Order No. 163,20 issued on 5
May 1987, in the exercise of her legislative power at the time.
It succeeded, but so superseded as well, the Presidential
Committee on Human Rights.21
The powers and functions22 of the Commission are defined by
the 1987 Constitution, thus: to —
(1) Investigate, on its own or on complaint by any party, all
forms of human rights violations involving civil and political
rights;
(2) Adopt its operational guidelines and rules of procedure,
and cite for contempt for violations thereof in accordance with
the Rules of Court;
(3) Provide appropriate legal measures for the protection of
human rights of all persons within the Philippines, as well as
Filipinos residing abroad, and provide for preventive measures
and legal aid services to the underprivileged whose human
rights have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention
facilities;
(5) Establish a continuing program of research, education, and
information to enhance respect for the primacy of human
rights;
(6) Recommend to the Congress effective measures to
promote human rights and to provide for compensation to
victims of violations of human rights, or their families;
(7) Monitor the Philippine Government's compliance with
international treaty obligations on human rights;
(8) Grant immunity from prosecution to any person whose
testimony or whose possession of documents or other
evidence is necessary or convenient to determine the truth in
any investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office,
or agency in the performance of its functions;
(10) Appoint its officers and employees in accordance with
law; and
(11) Perform such other duties and functions as may be
provided by law.
In its Order of 1 March 1991, denying petitioners' motion to
dismiss, the CHR theorizes that the intention of the members
of the Constitutional Commission is to make CHR a quasi-
judicial body.23 This view, however, has not heretofore been
shared by this Court. In Cariño v. Commission on Human
Rights,24 the Court, through then Associate Justice, now
Chief Justice Andres Narvasa, has observed that it is "only the
first of the enumerated powers and functions that bears any
resemblance to adjudication or adjudgment," but that
resemblance can in no way be synonymous to the adjudicatory
power itself. The Court explained:
. . . (T)he Commission on Human Rights . . . was not meant by
the fundamental law to be another court or quasi-judicial
agency in this country, or duplicate much less take over the
functions of the latter.
The most that may be conceded to the Commission in the way
of adjudicative power is that it may investigate, i.e., receive
evidence and make findings of fact as regards claimed human
rights violations involving civil and political rights. But fact
finding is not adjudication, and cannot be likened to the
judicial function of a court of justice, or even a quasi-judicial
agency or official. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a
judicial function, properly speaking. To be considered such,
the faculty of receiving evidence and making factual
conclusions in a controversy must be accompanied by the
authority of applying the law to those factual conclusions to
the end that the controversy may be decided or determined
authoritatively, finally and definitively, subject to such appeals
or modes of review as may be provided by law. This function,
to repeat, the Commission does not have.
After thus laying down at the outset the above rule, we now
proceed to the other kernel of this controversy and, its is, to
determine the extent of CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is so
generic a term that any attempt to define it, albeit not a few
have tried, could at best be described as inconclusive. Let us
observe. In a symposium on human rights in the Philippines,
sponsored by the University of the Philippines in 1977, one of
the questions that has been propounded is "(w)hat do you
understand by "human rights?" The participants, representing
different sectors of the society, have given the following
varied answers:
Human rights are the basic rights which inhere in man by
virtue of his humanity. They are the same in all parts of the
world, whether the Philippines or England, Kenya or the
Soviet Union, the United States or Japan, Kenya or Indonesia .
...
Human rights include civil rights, such as the right to life,
liberty, and property; freedom of speech, of the press, of
religion, academic freedom, and the rights of the accused to
due process of law; political rights, such as the right to elect
public officials, to be elected to public office, and to form
political associations and engage in politics; and social rights,
such as the right to an education, employment, and social
services.25
Human rights are the entitlement that inhere in the individual
person from the sheer fact of his humanity. . . . Because they
are inherent, human rights are not granted by the State but can
only be recognized and protected by it.26
(Human rights include all) the civil, political, economic,
social, and cultural rights defined in the Universal Declaration
of Human Rights.27
Human rights are rights that pertain to man simply because he
is human. They are part of his natural birth, right, innate and
inalienable.28
The Universal Declaration of Human Rights, as well as, or
more specifically, the International Covenant on Economic,
Social and Cultural Rights and International Covenant on
Civil and Political Rights, suggests that the scope of human
rights can be understood to include those that relate to an
individual's social, economic, cultural, political and civil
relations. It thus seems to closely identify the term to the
universally accepted traits and attributes of an individual,
along with what is generally considered to be his inherent and
inalienable rights, encompassing almost all aspects of life.
Have these broad concepts been equally contemplated by the
framers of our 1986 Constitutional Commission in adopting
the specific provisions on human rights and in creating an
independent commission to safeguard these rights? It may of
value to look back at the country's experience under the
martial law regime which may have, in fact, impelled the
inclusions of those provisions in our fundamental law. Many
voices have been heard. Among those voices, aptly
represented perhaps of the sentiments expressed by others,
comes from Mr. Justice J.B.L. Reyes, a respected jurist and an
advocate of civil liberties, who, in his paper, entitled "Present
State of Human Rights in the Philippines,"29 observes:
But while the Constitution of 1935 and that of 1973 enshrined
in their Bill of Rights most of the human rights expressed in
the International Covenant, these rights became unavailable
upon the proclamation of Martial Law on 21 September 1972.
Arbitrary action then became the rule. Individuals by the
thousands became subject to arrest upon suspicion, and were
detained and held for indefinite periods, sometimes for years,
without charges, until ordered released by the Commander-in-
Chief or this representative. The right to petition for the
redress of grievances became useless, since group actions
were forbidden. So were strikes. Press and other mass media
were subjected to censorship and short term licensing. Martial
law brought with it the suspension of the writ of habeas
corpus, and judges lost independence and security of tenure,
except members of the Supreme Court. They were required to
submit letters of resignation and were dismissed upon the
acceptance thereof. Torture to extort confessions were
practiced as declared by international bodies like Amnesty
International and the International Commission of Jurists.
Converging our attention to the records of the Constitutional
Commission, we can see the following discussions during its
26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be
made clear in view of the importance of human rights and also
because civil and political rights have been determined by
many international covenants and human rights legislations in
the Philippines, as well as the Constitution, specifically the
Bill of Rights and subsequent legislation. Otherwise, if
we cover such a wide territory in area, we might diffuse its
impact and the precise nature of its task, hence, its effectivity
would also be curtailed.
So, it is important to delienate the parameters of its tasks so
that the commission can be most effective.
MR. BENGZON. That is precisely my difficulty because civil
and political rights are very broad. The Article on the Bill of
Rights covers civil and political rights. Every single right of an
individual involves his civil right or his political right. So,
where do we draw the line?
MR. GARCIA. Actually, these civil and political rights have
been made clear in the language of human rights advocates, as
well as in the Universal Declaration of Human Rights which
addresses a number of articles on the right to life, the right
against torture, the right to fair and public hearing, and so on.
These are very specific rights that are considered enshrined in
many international documents and legal instruments as
constituting civil and political rights, and these are precisely
what we want to defend here.
MR. BENGZON. So, would the commissioner say civil and
political rights as defined in the Universal Declaration of
Human Rights?
MR. GARCIA. Yes, and as I have mentioned, the
International Covenant of Civil and Political Rights
distinguished this right against torture.
MR. BENGZON. So as to distinguish this from the other
rights that we have?
MR. GARCIA. Yes, because the other rights will encompass
social and economic rights, and there are other violations of
rights of citizens which can be addressed to the proper courts
and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the commission to
define its functions, and, therefore, in doing that the
commission will be authorized to take under its wings cases
which perhaps heretofore or at this moment are under the
jurisdiction of the ordinary investigative and prosecutorial
agencies of the government. Am I correct?
MR. GARCIA. No. We have already mentioned earlier that
we would like to define the specific parameters which cover
civil and political rights as covered by the international
standards governing the behavior of governments regarding
the particular political and civil rights of citizens, especially of
political detainees or prisoners. This particular aspect we have
experienced during martial law which we would now like to
safeguard.
MR. BENGZON. Then, I go back to that question that I had.
Therefore, what we are really trying to say is, perhaps, at the
proper time we could specify all those rights stated in the
Universal Declaration of Human Rights and defined as human
rights. Those are the rights that we envision here?
MR. GARCIA. Yes. In fact, they are also enshrined in the Bill
of Rights of our Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all
the rights under the Bill of Rights covered by human rights?
MR. GARCIA. No, only those that pertain to civil and
political rights.
xxx xxx xxx
MR. RAMA. In connection with the discussion on the scope
of human rights, I would like to state that in the past regime,
everytime we invoke the violation of human rights, the
Marcos regime came out with the defense that, as a matter of
fact, they had defended the rights of people to decent living,
food, decent housing and a life consistent with human dignity.
So, I think we should really limit the definition of human
rights to political rights. Is that the sense of the committee, so
as not to confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond also to
repeated points raised by the previous speaker.
There are actually six areas where this Commission on Human
Rights could act effectively: 1) protection of rights of political
detainees; 2) treatment of prisoners and the prevention of
tortures; 3) fair and public trials; 4) cases of disappearances;
5) salvagings and hamletting; and 6) other crimes committed
against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with Commissioner
Garcia that we should, in order to make the proposed
Commission more effective, delimit as much as possible,
without prejudice to future expansion. The coverage of the
concept and jurisdictional area of the term "human rights". I
was actually disturbed this morning when the reference was
made without qualification to the rights embodied in the
universal Declaration of Human Rights, although later on, this
was qualified to refer to civil and political rights contained
therein.
If I remember correctly, Madam President, Commissioner
Garcia, after mentioning the Universal Declaration of Human
Rights of 1948, mentioned or linked the concept of human
right with other human rights specified in other convention
which I do not remember. Am I correct?
MR. GARCIA. Is Commissioner Guingona referring to the
Declaration of Torture of 1985?
MR. GUINGONA. I do not know, but the commissioner
mentioned another.
MR. GARCIA. Madam President, the other one is the
International Convention on Civil and Political Rights of
which we are signatory.
MR. GUINGONA. I see. The only problem is that, although I
have a copy of the Universal Declaration of Human Rights
here, I do not have a copy of the other covenant mentioned. It
is quite possible that there are rights specified in that other
convention which may not be specified here. I was wondering
whether it would be wise to link our concept of human rights
to general terms like "convention," rather than specify the
rights contained in the convention.
As far as the Universal Declaration of Human Rights is
concerned, the Committee, before the period of amendments,
could specify to us which of these articles in the Declaration
will fall within the concept of civil and political rights, not for
the purpose of including these in the proposed constitutional
article, but to give the sense of the Commission as to what
human rights would be included, without prejudice to
expansion later on, if the need arises. For example, there was
no definite reply to the question of Commissioner Regalado as
to whether the right to marry would be considered a civil or a
social right. It is not a civil right?
MR. GARCIA. Madam President, I have to repeat the various
specific civil and political rights that we felt must be
envisioned initially by this provision — freedom from
political detention and arrest prevention of torture, right to fair
and public trials, as well as crimes involving disappearance,
salvagings, hamlettings and collective violations. So, it is
limited to politically related crimes precisely to protect the
civil and political rights of a specific group of individuals, and
therefore, we are not opening it up to all of the definite areas.
MR. GUINGONA. Correct. Therefore, just for the record, the
Gentlemen is no longer linking his concept or the concept of
the Committee on Human Rights with the so-called civil or
political rights as contained in the Universal Declaration of
Human Rights.
MR. GARCIA. When I mentioned earlier the Universal
Declaration of Human Rights, I was referring to an
international instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we will refer to each
and every specific article therein, but only to those that pertain
to the civil and politically related, as we understand it in this
Commission on Human Rights.
MR. GUINGONA. Madam President, I am not even clear as
to the distinction between civil and social rights.
MR. GARCIA. There are two international covenants: the
International Covenant and Civil and Political Rights and the
International Covenant on Economic, Social and Cultural
Rights. The second covenant contains all the different rights-
the rights of labor to organize, the right to education, housing,
shelter, et cetera.
MR. GUINGONA. So we are just limiting at the moment the
sense of the committee to those that the Gentlemen has
specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the standpoint of the
victims of human rights, I cannot stress more on how much we
need a Commission on Human Rights. . . .
. . . human rights victims are usually penniless. They cannot
pay and very few lawyers will accept clients who do not pay.
And so, they are the ones more abused and oppressed. Another
reason is, the cases involved are very delicate — torture,
salvaging, picking up without any warrant of arrest,
massacre — and the persons who are allegedly guilty are
people in power like politicians, men in the military and big
shots. Therefore, this Human Rights Commission must be
independent.
I would like very much to emphasize how much we need this
commission, especially for the little Filipino, the little
individual who needs this kind of help and cannot get it. And I
think we should concentrate only on civil and political
violations because if we open this to land, housing and health,
we will have no place to go again and we will not receive any
response. . . .30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of
the 1987 Constitution, is a provision empowering the
Commission on Human Rights to "investigate, on its own or
on complaint by any party, all forms of human rights
violations involving civil and political rights" (Sec. 1).
The term "civil rights,"31 has been defined as referring —
(t)o those (rights) that belong to every citizen of the state or
country, or, in wider sense, to all its inhabitants, and are not
connected with the organization or administration of the
government. They include the rights of property, marriage,
equal protection of the laws, freedom of contract, etc. Or, as
otherwise defined civil rights are rights appertaining to a
person by virtue of his citizenship in a state or community.
Such term may also refer, in its general sense, to rights
capable of being enforced or redressed in a civil action.
Also quite often mentioned are the guarantees against
involuntary servitude, religious persecution, unreasonable
searches and seizures, and imprisonment for debt.32
Political rights,33 on the other hand, are said to refer to the
right to participate, directly or indirectly, in the establishment
or administration of government, the right of suffrage, the
right to hold public office, the right of petition and, in general,
the rights appurtenant to citizenship vis-a-vis the management
of government.34
Recalling the deliberations of the Constitutional Commission,
aforequoted, it is readily apparent that the delegates
envisioned a Commission on Human Rights that would focus
its attention to the more severe cases of human rights
violations. Delegate Garcia, for instance, mentioned such
areas as the "(1) protection of rights of political detainees, (2)
treatment of prisoners and the prevention of tortures, (3) fair
and public trials, (4) cases of disappearances, (5) salvagings
and hamletting, and (6) other crimes committed against the
religious." While the enumeration has not likely been meant to
have any preclusive effect, more than just expressing a
statement of priority, it is, nonetheless, significant for the tone
it has set. In any event, the delegates did not apparently take
comfort in peremptorily making a conclusive delineation of
the CHR's scope of investigatorial jurisdiction. They have thus
seen it fit to resolve, instead, that "Congress may provide for
other cases of violations of human rights that should fall
within the authority of the Commission, taking into account its
recommendation."35
In the particular case at hand, there is no cavil that what are
sought to be demolished are the stalls, sari-sari stores
and carinderia, as well as temporary shanties, erected by
private respondents on a land which is planned to be
developed into a "People's Park". More than that, the land
adjoins the North EDSA of Quezon City which, this Court can
take judicial notice of, is a busy national highway. The
consequent danger to life and limb is not thus to be likewise
simply ignored. It is indeed paradoxical that a right which is
claimed to have been violated is one that cannot, in the first
place, even be invoked, if it is, in fact, extant. Be that as it
may, looking at the standards hereinabove discoursed vis-a-
vis the circumstances obtaining in this instance, we are not
prepared to conclude that the order for the demolition of the
stalls, sari-sari stores and carinderia of the private respondents
can fall within the compartment of "human rights violations
involving civil and political rights" intended by the
Constitution.
On its contempt powers, the CHR is constitutionally
authorized to "adopt its operational guidelines and rules of
procedure, and cite for contempt for violations thereof in
accordance with the Rules of Court." Accordingly, the CHR
acted within its authority in providing in its revised rules, its
power "to cite or hold any person in direct or indirect
contempt, and to impose the appropriate penalties in
accordance with the procedure and sanctions provided for in
the Rules of Court." That power to cite for contempt, however,
should be understood to apply only to violations of its adopted
operational guidelines and rules of procedure essential to carry
out its investigatorial powers. To exemplify, the power to cite
for contempt could be exercised against persons who refuse to
cooperate with the said body, or who unduly withhold relevant
information, or who decline to honor summons, and the like,
in pursuing its investigative work. The "order to desist" (a
semantic interplay for a restraining order) in the instance
before us, however, is not investigatorial in character but
prescinds from an adjudicative power that it does not possess.
In Export Processing Zone Authority vs. Commission on
Human Rights,36 the Court, speaking through Madame Justice
Carolina Griño-Aquino, explained:
The constitutional provision directing the CHR to "provide for
preventive measures and legal aid services to the
underprivileged whose human rights have been violated or
need protection" may not be construed to confer jurisdiction
on the Commission to issue a restraining order or writ of
injunction for, it that were the intention, the Constitution
would have expressly said so. "Jurisdiction is conferred only
by the Constitution or by law". It is never derived by
implication.
Evidently, the "preventive measures and legal aid services"
mentioned in the Constitution refer to extrajudicial and
judicial remedies (including a writ of preliminary injunction)
which the CHR may seek from proper courts on behalf of the
victims of human rights violations. Not being a court of
justice, the CHR itself has no jurisdiction to issue the writ, for
a writ of preliminary injunction may only be issued "by the
judge of any court in which the action is pending [within his
district], or by a Justice of the Court of Appeals, or of the
Supreme Court. . . . A writ of preliminary injunction is an
ancillary remedy. It is available only in a pending principal
action, for the preservation or protection of the rights and
interests of a party thereto, and for no other purpose."
(footnotes omitted).
The Commission does have legal standing to indorse, for
appropriate action, its findings and recommendations to any
appropriate agency of government.37
The challenge on the CHR's disbursement of the amount of
P200,000.00 by way of financial aid to the vendors affected by
the demolition is not an appropriate issue in the instant
petition. Not only is there lack of locus standi on the part of
the petitioners to question the disbursement but, more
importantly, the matter lies with the appropriate administrative
agencies concerned to initially consider.
The public respondent explains that this petition for
prohibition filed by the petitioners has become moot and
academic since the case before it (CHR Case No. 90-1580) has
already been fully heard, and that the matter is merely
awaiting final resolution. It is true that prohibition is a
preventive remedy to restrain the doing of an act about to be
done, and not intended to provide a remedy for an act already
accomplished. 38 Here, however, said Commission admittedly
has yet to promulgate its resolution in CHR Case No. 90-1580.
The instant petition has been intended, among other things, to
also prevent CHR from precisely doing that.39
WHEREFORE, the writ prayed for in this petition is
GRANTED. The Commission on Human Rights is hereby
prohibited from further proceeding with CHR Case No. 90-
1580 and from implementing the P500.00 fine for contempt.
The temporary restraining order heretofore issued by this
Court is made permanent. No costs.
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as
remarkable as the one which this application for habeas
corpus submits for decision. While hardly to be expected to be
met with in this modern epoch of triumphant democracy, yet,
after all, the cause presents no great difficulty if there is kept
in the forefront of our minds the basic principles of popular
government, and if we give expression to the paramount
purpose for which the courts, as an independent power of such
a government, were constituted. The primary question
is — Shall the judiciary permit a government of the men
instead of a government of laws to be set up in the Philippine
Islands?
Omitting much extraneous matter, of no moment to these
proceedings, but which might prove profitable reading for
other departments of the government, the facts are these: The
Mayor of the city of Manila, Justo Lukban, for the best of all
reasons, to exterminate vice, ordered the segregated district for
women of ill repute, which had been permitted for a number
of years in the city of Manila, closed. Between October 16 and
October 25, 1918, the women were kept confined to their
houses in the district by the police. Presumably, during this
period, the city authorities quietly perfected arrangements with
the Bureau of Labor for sending the women to Davao,
Mindanao, as laborers; with some government office for the
use of the coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers. At any rate, about
midnight of October 25, the police, acting pursuant to orders
from the chief of police, Anton Hohmann and the Mayor of
the city of Manila, Justo Lukban, descended upon the houses,
hustled some 170 inmates into patrol wagons, and placed them
aboard the steamers that awaited their arrival. The women
were given no opportunity to collect their belongings, and
apparently were under the impression that they were being
taken to a police station for an investigation. They had no
knowledge that they were destined for a life in Mindanao.
They had not been asked if they wished to depart from that
region and had neither directly nor indirectly given their
consent to the deportation. The involuntary guests were
received on board the steamers by a representative of the
Bureau of Labor and a detachment of Constabulary soldiers.
The two steamers with their unwilling passengers sailed for
Davao during the night of October 25.
The vessels reached their destination at Davao on October 29.
The women were landed and receipted for as laborers by
Francisco Sales, provincial governor of Davao, and by
Feliciano Yñigo and Rafael Castillo. The governor and
the hacendero Yñigo, who appear as parties in the case, had no
previous notification that the women were prostitutes who had
been expelled from the city of Manila. The further happenings
to these women and the serious charges growing out of alleged
ill-treatment are of public interest, but are not essential to the
disposition of this case. Suffice it to say, generally, that some
of the women married, others assumed more or less
clandestine relations with men, others went to work in
different capacities, others assumed a life unknown and
disappeared, and a goodly portion found means to return to
Manila.
To turn back in our narrative, just about the time
the Corregidor and the Negros were putting in to Davao, the
attorney for the relatives and friends of a considerable number
of the deportees presented an application for habeas corpus to
a member of the Supreme Court. Subsequently, the
application, through stipulation of the parties, was made to
include all of the women who were sent away from Manila to
Davao and, as the same questions concerned them all, the
application will be considered as including them. The
application set forth the salient facts, which need not be
repeated, and alleged that the women were illegally restrained
of their liberty by Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, and by
certain unknown parties. The writ was made returnable before
the full court. The city fiscal appeared for the respondents,
Lukban and Hohmann, admitted certain facts relative to
sequestration and deportation, and prayed that the writ should
not be granted because the petitioners were not proper parties,
because the action should have been begun in the Court of
First Instance for Davao, Department of Mindanao and Sulu,
because the respondents did not have any of the women under
their custody or control, and because their jurisdiction did not
extend beyond the boundaries of the city of Manila. According
to an exhibit attached to the answer of the fiscal, the 170
women were destined to be laborers, at good salaries, on
the haciendas of Yñigo and Governor Sales. In open court, the
fiscal admitted, in answer to question of a member of the
court, that these women had been sent out of Manila without
their consent. The court awarded the writ, in an order of
November 4, that directed Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila,
Francisco Sales, governor of the province of Davao, and
Feliciano Yñigo, an hacenderoof Davao, to bring before the
court the persons therein named, alleged to be deprived of
their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned
to Manila at their own expense. On motion of counsel for
petitioners, their testimony was taken before the clerk of the
Supreme Court sitting as commissioners. On the day named in
the order, December 2nd, 1918, none of the persons in whose
behalf the writ was issued were produced in court by the
respondents. It has been shown that three of those who had
been able to come back to Manila through their own efforts,
were notified by the police and the secret service to appear
before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when
pleading to the original petition copied a telegram from the
Mayor of the city of Manila to the provincial governor of
Davao and the answer thereto, and telegrams that had passed
between the Director of Labor and the attorney for that Bureau
then in Davao, and offered certain affidavits showing that the
women were contained with their life in Mindanao and did not
wish to return to Manila. Respondents Sales answered alleging
that it was not possible to fulfill the order of the Supreme
Court because the women had never been under his control,
because they were at liberty in the Province of Davao, and
because they had married or signed contracts as laborers.
Respondent Yñigo answered alleging that he did not have any
of the women under his control and that therefore it was
impossible for him to obey the mandate. The court, after due
deliberation, on December 10, 1918, promulgated a second
order, which related that the respondents had not complied
with the original order to the satisfaction of the court nor
explained their failure to do so, and therefore directed that
those of the women not in Manila be brought before the court
by respondents Lukban, Hohmann, Sales, and Yñigo on
January 13, 1919, unless the women should, in written
statements voluntarily made before the judge of first instance
of Davao or the clerk of that court, renounce the right, or
unless the respondents should demonstrate some other legal
motives that made compliance impossible. It was further
stated that the question of whether the respondents were in
contempt of court would later be decided and the reasons for
the order announced in the final decision.
Before January 13, 1919, further testimony including that of a
number of the women, of certain detectives and policemen,
and of the provincial governor of Davao, was taken before the
clerk of the Supreme Court sitting as commissioner and the
clerk of the Court of First Instance of Davao acting in the
same capacity. On January 13, 1919, the respondents
technically presented before the Court the women who had
returned to the city through their own efforts and eight others
who had been brought to Manila by the respondents.
Attorneys for the respondents, by their returns, once again
recounted the facts and further endeavored to account for all
of the persons involved in the habeas corpus. In substance, it
was stated that the respondents, through their representatives
and agents, had succeeded in bringing from Davao with their
consent eight women; that eighty-one women were found in
Davao who, on notice that if they desired they could return to
Manila, transportation fee, renounced the right through sworn
statements; that fifty-nine had already returned to Manila by
other means, and that despite all efforts to find them twenty-
six could not be located. Both counsel for petitioners and the
city fiscal were permitted to submit memoranda. The first
formally asked the court to find Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of
Manila, Jose Rodriguez and Fernando Ordax, members of the
police force of the city of Manila, Feliciano Yñigo,
an hacendero of Davao, Modesto Joaquin, the attorney for the
Bureau of Labor, and Anacleto Diaz, fiscal of the city of
Manila, in contempt of court. The city fiscal requested that
the replica al memorandum de los recurridos, (reply to
respondents' memorandum) dated January 25, 1919, be struck
from the record.
In the second order, the court promised to give the reasons for
granting the writ of habeas corpus in the final decision. We
will now proceed to do so.
One fact, and one fact only, need be recalled — these one
hundred and seventy women were isolated from society, and
then at night, without their consent and without any
opportunity to consult with friends or to defend their rights,
were forcibly hustled on board steamers for transportation to
regions unknown. Despite the feeble attempt to prove that the
women left voluntarily and gladly, that such was not the case
is shown by the mere fact that the presence of the police and
the constabulary was deemed necessary and that these officers
of the law chose the shades of night to cloak their secret and
stealthy acts. Indeed, this is a fact impossible to refute and
practically admitted by the respondents.
With this situation, a court would next expect to resolve the
question — By authority of what law did the Mayor and the
Chief of Police presume to act in deporting by duress these
persons from Manila to another distant locality within the
Philippine Islands? We turn to the statutes and we find —
Alien prostitutes can be expelled from the Philippine Islands
in conformity with an Act of congress. The Governor-General
can order the eviction of undesirable aliens after a hearing
from the Islands. Act No. 519 of the Philippine Commission
and section 733 of the Revised Ordinances of the city of
Manila provide for the conviction and punishment by a court
of justice of any person who is a common prostitute. Act No.
899 authorizes the return of any citizen of the United States,
who may have been convicted of vagrancy, to the homeland.
New York and other States have statutes providing for the
commitment to the House of Refuge of women convicted of
being common prostitutes. Always a law! Even when the
health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper
colony, it is done pursuant to some law or order. But one can
search in vain for any law, order, or regulation, which even
hints at the right of the Mayor of the city of Manila or the
chief of police of that city to force citizens of the Philippine
Islands — and these women despite their being in a sense
lepers of society are nevertheless not chattels but Philippine
citizens protected by the same constitutional guaranties as are
other citizens — to change their domicile from Manila to
another locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any person
to change his residence.
In other countries, as in Spain and Japan, the privilege of
domicile is deemed so important as to be found in the Bill of
Rights of the Constitution. Under the American constitutional
system, liberty of abode is a principle so deeply imbedded in
jurisprudence and considered so elementary in nature as not
even to require a constitutional sanction. Even the Governor-
General of the Philippine Islands, even the President of the
United States, who has often been said to exercise more power
than any king or potentate, has no such arbitrary prerogative,
either inherent or express. Much less, therefore, has the
executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could,
at their mere behest or even for the most praiseworthy of
motives, render the liberty of the citizen so insecure, then the
presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same privilege. If
these officials can take to themselves such power, then any
other official can do the same. And if any official can exercise
the power, then all persons would have just as much right to
do so. And if a prostitute could be sent against her wishes and
under no law from one locality to another within the country,
then officialdom can hold the same club over the head of any
citizen.
Law defines power. Centuries ago Magna Charta decreed
that — "No freeman shall be taken, or imprisoned, or be
disseized of his freehold, or liberties, or free customs, or be
outlawed, or exiled, or any other wise destroyed; nor will we
pass upon him nor condemn him, but by lawful judgment of
his peers or by the law of the land. We will sell to no man, we
will not deny or defer to any man either justice or right."
(Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at
Large, 7.) No official, no matter how high, is above the law.
The courts are the forum which functionate to safeguard
individual liberty and to punish official transgressors. "The
law," said Justice Miller, delivering the opinion of the
Supreme Court of the United States, "is the only supreme
power in our system of government, and every man who by
accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the
limitations which it imposes upon the exercise of the authority
which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.)
"The very idea," said Justice Matthews of the same high
tribunal in another case, "that one man may be compelled to
hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another,
seems to be intolerable in any country where freedom prevails,
as being the essence of slavery itself." (Yick Wo vs. Hopkins
[1886], 118 U.S., 356, 370.) All this explains the motive in
issuing the writ of habeas corpus, and makes clear why we
said in the very beginning that the primary question was
whether the courts should permit a government of men or a
government of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official
oppression? The remedies of the citizen are three: (1) Civil
action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the
aggrieved party may recoup money damages. It may still rest
with the parties in interest to pursue such an action, but it was
never intended effectively and promptly to meet any such
situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in
force in these Islands provides:
Any public officer not thereunto authorized by law or by
regulations of a general character in force in the Philippines
who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of
the judgment of a court, shall be punished by a fine of not less
than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law
or by regulation of a general character in force in the
Philippines who shall compel any person to change his
domicile or residence shall suffer the penalty of destierro and
a fine of not less than six hundred and twenty-five and not
more than six thousand two hundred and fifty pesetas. (Art.
211.)
We entertain no doubt but that, if, after due investigation, the
proper prosecuting officers find that any public officer has
violated this provision of law, these prosecutors will institute
and press a criminal prosecution just as vigorously as they
have defended the same official in this action. Nevertheless,
that the act may be a crime and that the persons guilty thereof
can be proceeded against, is no bar to the instant proceedings.
To quote the words of Judge Cooley in a case which will later
be referred to — "It would be a monstrous anomaly in the law
if to an application by one unlawfully confined, ta be restored
to his liberty, it could be a sufficient answer that the
confinement was a crime, and therefore might be continued
indefinitely until the guilty party was tried and punished
therefor by the slow process of criminal procedure." (In the
matter of Jackson [1867], 15 Mich., 416, 434.) The writ
of habeas corpus was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful restraint,
and as the best and only sufficient defense of personal
freedom. Any further rights of the parties are left untouched
by decision on the writ, whose principal purpose is to set the
individual at liberty.
Granted that habeas corpus is the proper remedy, respondents
have raised three specific objections to its issuance in this
instance. The fiscal has argued (l) that there is a defect in
parties petitioners, (2) that the Supreme Court should not a
assume jurisdiction, and (3) that the person in question are not
restrained of their liberty by respondents. It was finally
suggested that the jurisdiction of the Mayor and the chief of
police of the city of Manila only extends to the city limits and
that perforce they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel.
The petitioners were relatives and friends of the deportees.
The way the expulsion was conducted by the city officials
made it impossible for the women to sign a petition for habeas
corpus. It was consequently proper for the writ to be submitted
by persons in their behalf. (Code of Criminal Procedure, sec.
78; Code of Civil Procedure, sec. 527.) The law, in its zealous
regard for personal liberty, even makes it the duty of a court or
judge to grant a writ of habeas corpus if there is evidence that
within the court's jurisdiction a person is unjustly imprisoned
or restrained of his liberty, though no application be made
therefor. (Code of Criminal Procedure, sec. 93.) Petitioners
had standing in court.
The fiscal next contended that the writ should have been asked
for in the Court of First Instance of Davao or should have been
made returnable before that court. It is a general rule of good
practice that, to avoid unnecessary expense and
inconvenience, petitions for habeas corpus should be
presented to the nearest judge of the court of first instance. But
this is not a hard and fast rule. The writ of habeas corpus may
be granted by the Supreme Court or any judge thereof
enforcible anywhere in the Philippine Islands. (Code of
Criminal Procedure, sec. 79; Code of Civil Procedure, sec.
526.) Whether the writ shall be made returnable before the
Supreme Court or before an inferior court rests in the
discretion of the Supreme Court and is dependent on the
particular circumstances. In this instance it was not shown that
the Court of First Instance of Davao was in session, or that the
women had any means by which to advance their plea before
that court. On the other hand, it was shown that the petitioners
with their attorneys, and the two original respondents with
their attorney, were in Manila; it was shown that the case
involved parties situated in different parts of the Islands; it
was shown that the women might still be imprisoned or
restrained of their liberty; and it was shown that if the writ was
to accomplish its purpose, it must be taken cognizance of and
decided immediately by the appellate court. The failure of the
superior court to consider the application and then to grant the
writ would have amounted to a denial of the benefits of the
writ.
The last argument of the fiscal is more plausible and more
difficult to meet. When the writ was prayed for, says counsel,
the parties in whose behalf it was asked were under no
restraint; the women, it is claimed, were free in Davao, and the
jurisdiction of the mayor and the chief of police did not extend
beyond the city limits. At first blush, this is a tenable position.
On closer examination, acceptance of such dictum is found to
be perversive of the first principles of the writ of habeas
corpus.
A prime specification of an application for a writ of habeas
corpus is restraint of liberty. The essential object and purpose
of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient.
The forcible taking of these women from Manila by officials
of that city, who handed them over to other parties, who
deposited them in a distant region, deprived these women of
freedom of locomotion just as effectively as if they had been
imprisoned. Placed in Davao without either money or personal
belongings, they were prevented from exercising the liberty of
going when and where they pleased. The restraint of liberty
which began in Manila continued until the aggrieved parties
were returned to Manila and released or until they freely and
truly waived his right.
Consider for a moment what an agreement with such a defense
would mean. The chief executive of any municipality in the
Philippines could forcibly and illegally take a private citizen
and place him beyond the boundaries of the municipality, and
then, when called upon to defend his official action, could
calmly fold his hands and claim that the person was under no
restraint and that he, the official, had no jurisdiction over this
other municipality. We believe the true principle should be
that, if the respondent is within the jurisdiction of the court
and has it in his power to obey the order of the court and thus
to undo the wrong that he has inflicted, he should be
compelled to do so. Even if the party to whom the writ is
addressed has illegally parted with the custody of a person
before the application for the writ is no reason why the writ
should not issue. If the mayor and the chief of police, acting
under no authority of law, could deport these women from the
city of Manila to Davao, the same officials must necessarily
have the same means to return them from Davao to Manila.
The respondents, within the reach of process, may not be
permitted to restrain a fellow citizen of her liberty by forcing
her to change her domicile and to avow the act with impunity
in the courts, while the person who has lost her birthright of
liberty has no effective recourse. The great writ of liberty may
not thus be easily evaded.
It must be that some such question has heretofore been
presented to the courts for decision. Nevertheless, strange as it
may seem, a close examination of the authorities fails to reveal
any analogous case. Certain decisions of respectable courts are
however very persuasive in nature.
A question came before the Supreme Court of the State of
Michigan at an early date as to whether or not a writ of habeas
corpus would issue from the Supreme Court to a person within
the jurisdiction of the State to bring into the State a minor
child under guardianship in the State, who has been and
continues to be detained in another State. The membership of
the Michigan Supreme Court at this time was notable. It was
composed of Martin, chief justice, and Cooley, Campbell, and
Christiancy, justices. On the question presented the court was
equally divided. Campbell, J., with whom concurred Martin,
C. J., held that the writ should be quashed. Cooley, J., one of
the most distinguished American judges and law-writers, with
whom concurred Christiancy, J., held that the writ should
issue. Since the opinion of Justice Campbell was predicated to
a large extent on his conception of the English decisions, and
since, as will hereafter appear, the English courts have taken a
contrary view, only the following eloquent passages from the
opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this
court to issue the present writ on the petition which was laid
before us. . . .
It would be strange indeed if, at this late day, after the
eulogiums of six centuries and a half have been expended
upon the Magna Charta, and rivers of blood shed for its
establishment; after its many confirmations, until Coke could
declare in his speech on the petition of right that "Magna
Charta was such a fellow that he will have no sovereign," and
after the extension of its benefits and securities by the petition
of right, bill of rights and habeas corpus acts, it should now be
discovered that evasion of that great clause for the protection
of personal liberty, which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is so, it is
important that it be determined without delay, that the
legislature may apply the proper remedy, as I can not doubt
they would, on the subject being brought to their notice. . . .
The second proposition — that the statutory provisions are
confined to the case of imprisonment within the state — seems
to me to be based upon a misconception as to the source of our
jurisdiction. It was never the case in England that the court of
king's bench derived its jurisdiction to issue and enforce this
writ from the statute. Statutes were not passed to give the
right, but to compel the observance of rights which existed. . .
. the question is not as to what was done before the issue of the
The important fact to be observed in regard to the mode of
procedure upon this writ is, that it is directed to and served
upon, not the person confined, but his jailor. It does not reach
the former except through the latter. The officer or person who
serves it does not unbar the prison doors, and set the prisoner
free, but the court relieves him by compelling the oppressor to
release his constraint. The whole force of the writ is spent
upon the respondent, and if he fails to obey it, the means to be
resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief,
and if any other means are resorted to, they are only auxiliary
to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is
within reach of process, so that by the power of the court he
can be compelled to release his grasp. The difficulty of
affording redress is not increased by the confinement being
beyond the limits of the state, except as greater distance may
affect it. The important question is, where the power of control
exercised? And I am aware of no other remedy. (In the matter
of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as
authoritative by other courts. (Rivers vs. Mitchell [1881], 57
Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the
subject. Thus, a child had been taken out of English by the
respondent. A writ of habeas corpus was issued by the Queen's
Bench Division upon the application of the mother and her
husband directing the defendant to produce the child. The
judge at chambers gave defendant until a certain date to
produce the child, but he did not do so. His return stated that
the child before the issuance of the writ had been handed over
by him to another; that it was no longer in his custody or
control, and that it was impossible for him to obey the writ. He
was found in contempt of court. On appeal, the court, through
Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued
on January 22. That writ commanded the defendant to have
the body of the child before a judge in chambers at the Royal
Courts of Justice immediately after the receipt of the writ,
together with the cause of her being taken and detained. That
is a command to bring the child before the judge and must be
obeyed, unless some lawful reason can be shown to excuse the
nonproduction of the child. If it could be shown that by reason
of his having lawfully parted with the possession of the child
before the issuing of the writ, the defendant had no longer
power to produce the child, that might be an answer; but in the
absence of any lawful reason he is bound to produce the child,
and, if he does not, he is in contempt of the Court for not
obeying the writ without lawful excuse. Many efforts have
been made in argument to shift the question of contempt to
some anterior period for the purpose of showing that what was
done at some time prior to the writ cannot be a contempt. But
writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in
obedience to its commands. (The Queen vs. Bernardo [1889],
23 Q. B. D., 305. See also to the same effect the Irish case
of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The
Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D.,
283.)
A decision coming from the Federal Courts is also of interest.
A habeas corpus was directed to the defendant to have before
the circuit court of the District of Columbia three colored
persons, with the cause of their detention. Davis, in his return
to the writ, stated on oath that he had purchased the negroes as
slaves in the city of Washington; that, as he believed, they
were removed beyond the District of Columbia before the
service of the writ of habeas corpus, and that they were then
beyond his control and out of his custody. The evidence
tended to show that Davis had removed the negroes because
he suspected they would apply for a writ of habeas corpus.
The court held the return to be evasive and insufficient, and
that Davis was bound to produce the negroes, and Davis being
present in court, and refusing to produce them, ordered that he
be committed to the custody of the marshall until he should
produce the negroes, or be otherwise discharged in due course
of law. The court afterwards ordered that Davis be released
upon the production of two of the negroes, for one of the
negroes had run away and been lodged in jail in Maryland.
Davis produced the two negroes on the last day of the term.
(United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas.
No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624;
Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one
of the defense offered by the respondents constituted a
legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent
complied with the two orders of the Supreme Court awarding
the writ of habeas corpus, and if it be found that they did not,
whether the contempt should be punished or be taken as
purged.
The first order, it will be recalled, directed Justo Lukban,
Anton Hohmann, Francisco Sales, and Feliciano Yñigo to
present the persons named in the writ before the court on
December 2, 1918. The order was dated November 4, 1918.
The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses,
the Mayor of the city of Manila waited until the 21st of
November before sending a telegram to the provincial
governor of Davao. According to the response of the attorney
for the Bureau of Labor to the telegram of his chief, there were
then in Davao women who desired to return to Manila, but
who should not be permitted to do so because of having
contracted debts. The half-hearted effort naturally resulted in
none of the parties in question being brought before the court
on the day named.
For the respondents to have fulfilled the court's order, three
optional courses were open: (1) They could have produced the
bodies of the persons according to the command of the writ; or
(2) they could have shown by affidavit that on account of
sickness or infirmity those persons could not safely be brought
before the court; or (3) they could have presented affidavits to
show that the parties in question or their attorney waived the
right to be present. (Code of Criminal Procedure, sec. 87.)
They did not produce the bodies of the persons in whose
behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the
right to be present by those interested. Instead a few
stereotyped affidavits purporting to show that the women were
contended with their life in Davao, some of which have since
been repudiated by the signers, were appended to the return.
That through ordinary diligence a considerable number of the
women, at least sixty, could have been brought back to Manila
is demonstrated to be found in the municipality of Davao, and
that about this number either returned at their own expense or
were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made,
would have been warranted summarily in finding the
respondents guilty of contempt of court, and in sending them
to jail until they obeyed the order. Their excuses for the non-
production of the persons were far from sufficient. The,
authorities cited herein pertaining to somewhat similar facts
all tend to indicate with what exactitude a habeas corpus writ
must be fulfilled. For example, in Gossage's case, supra, the
Magistrate in referring to an earlier decision of the Court, said:
"We thought that, having brought about that state of things by
his own illegal act, he must take the consequences; and we
said that he was bound to use every effort to get the child
back; that he must do much more than write letters for the
purpose; that he must advertise in America, and even if
necessary himself go after the child, and do everything that
mortal man could do in the matter; and that the court would
only accept clear proof of an absolute impossibility by way of
excuse." In other words, the return did not show that every
possible effort to produce the women was made by the
respondents. That the court forebore at this time to take drastic
action was because it did not wish to see presented to the
public gaze the spectacle of a clash between executive
officials and the judiciary, and because it desired to give the
respondents another chance to demonstrate their good faith
and to mitigate their wrong.
In response to the second order of the court, the respondents
appear to have become more zealous and to have shown a
better spirit. Agents were dispatched to Mindanao, placards
were posted, the constabulary and the municipal police joined
in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and
counter-charges in such a bitterly contested case are to be
expected, and while a critical reading of the record might
reveal a failure of literal fulfillment with our mandate, we
come to conclude that there is a substantial compliance with it.
Our finding to this effect may be influenced somewhat by our
sincere desire to see this unhappy incident finally closed. If
any wrong is now being perpetrated in Davao, it should
receive an executive investigation. If any particular individual
is still restrained of her liberty, it can be made the object of
separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a
substantial compliance with it, nothing further in this
connection remains to be done.
The attorney for the petitioners asks that we find in contempt
of court Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Jose
Rodriguez, and Fernando Ordax, members of the police force
of the city of Manila, Modesto Joaquin, the attorney for the
Bureau of Labor, Feliciano Yñigo, an hacendero of Davao,
and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised
on the preservative and not on the vindictive principle. Only
occasionally should the court invoke its inherent power in
order to retain that respect without which the administration of
justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so,
and does not offer a valid excuse, a court must, to vindicate its
authority, adjudge the respondent to be guilty of contempt, and
must order him either imprisoned or fined. An officer's failure
to produce the body of a person in obedience to a writ
of habeas corpus when he has power to do so, is a contempt
committed in the face of the court. (Ex parte Sterns [1888], 77
Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial
regard for human imperfections, we cannot say that any of the
respondents, with the possible exception of the first named,
has flatly disobeyed the court by acting in opposition to its
authority. Respondents Hohmann, Rodriguez, Ordax, and
Joaquin only followed the orders of their chiefs, and while,
under the law of public officers, this does not exonerate them
entirely, it is nevertheless a powerful mitigating circumstance.
The hacendero Yñigo appears to have been drawn into the
case through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem
to have done no more than to fulfill his duty as the legal
representative of the city government. Finding him innocent of
any disrespect to the court, his counter-motion to strike from
the record the memorandum of attorney for the petitioners,
which brings him into this undesirable position, must be
granted. When all is said and done, as far as this record
discloses, the official who was primarily responsible for the
unlawful deportation, who ordered the police to accomplish
the same, who made arrangements for the steamers and the
constabulary, who conducted the negotiations with the Bureau
of Labor, and who later, as the head of the city government,
had it within his power to facilitate the return of the
unfortunate women to Manila, was Justo Lukban, the Mayor
of the city of Manila. His intention to suppress the social evil
was commendable. His methods were unlawful. His regard for
the writ of habeas corpus issued by the court was only tardily
and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of

the Code of Civil Procedure, which relates to the penalty for
disobeying the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved as much
as P400 each, which would reach to many thousands of pesos,
and in addition to deal with him as for a contempt. Some
members of the court are inclined to this stern view. It would
also be possible to find that since respondent Lukban did
comply substantially with the second order of the court, he has
purged his contempt of the first order. Some members of the
court are inclined to this merciful view. Between the two
extremes appears to lie the correct finding. The failure of
respondent Lukban to obey the first mandate of the court
tended to belittle and embarrass the administration of justice to
such an extent that his later activity may be considered only as
extenuating his conduct. A nominal fine will at once command
such respect without being unduly oppressive — such an
amount is P100.

In resume — as before stated, no further action on the writ

of habeas corpus is necessary. The respondents Hohmann,
Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to
be in contempt of court. Respondent Lukban is found in
contempt of court and shall pay into the office of the clerk of
the Supreme Court within five days the sum of one hundred
pesos (P100). The motion of the fiscal of the city of Manila to
strike from the record the Replica al Memorandum de los
Recurridos of January 25, 1919, is granted. Costs shall be
taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not

be permitted to express the hope that this decision may serve
to bulwark the fortifications of an orderly government of laws
and to protect individual liberty from illegal encroachment.
G.R. No. 176579 October 9, 2012
HEIRS OF WILSON P. GAMBOA,* Petitioners,
vs.
FINANCE SECRETARY MARGARITO B. TEVES, et
al, Respondents.
PABLITO V. SANIDAD and ARNO V.
SANIDAD, Petitioner-in-Intervention.
RESOLUTION
CARPIO, J.:
This resolves the motions for reconsideration of the 28 June
2011 Decision filed by (1) the Philippine Stock Exchange's
(PSE) President, 1 (2) Manuel V. Pangilinan (Pangilinan),2 (3)
Napoleon L. Nazareno (Nazareno ),3 and ( 4) the Securities
and Exchange Commission (SEC)4 (collectively, movants ).
The Office of the Solicitor General (OSG) initially filed a
motion for reconsideration on behalfofthe SEC,5 assailing the
28 June 2011 Decision. However, it subsequently filed a
Consolidated Comment on behalf of the State,6declaring
expressly that it agrees with the Court's definition of the term
"capital" in Section 11, Article XII of the Constitution. During
the Oral Arguments on 26 June 2012, the OSG reiterated its
position consistent with the Court's 28 June 2011 Decision.
We deny the motions for reconsideration.
I.
Far-reaching implications of the legal issue justify
treatment of petition for declaratory relief as one for
mandamus.
As we emphatically stated in the 28 June 2011 Decision, the
interpretation of the term "capital" in Section 11, Article XII
of the Constitution has far-reaching implications to the
national economy. In fact, a resolution of this issue will
determine whether Filipinos are masters, or second-class
citizens, in their own country. What is at stake here is whether
Filipinos or foreigners will have effective control of the
Philippine national economy. Indeed, if ever there is a legal
issue that has far-reaching implications to the entire nation,
and to future generations of Filipinos, it is the threshold legal
issue presented in this case.
Contrary to Pangilinan’s narrow view, the serious economic
consequences resulting in the interpretation of the term
"capital" in Section 11, Article XII of the Constitution
undoubtedly demand an immediate adjudication of this
issue. Simply put, the far-reaching implications of this issue
justify the treatment of the petition as one for mandamus.7
In Luzon Stevedoring Corp. v. Anti-Dummy Board,8 the
Court deemed it wise and expedient to resolve the case
although the petition for declaratory relief could be outrightly
dismissed for being procedurally defective. There, appellant
admittedly had already committed a breach of the Public
Service Act in relation to the Anti-Dummy Law since it had
been employing non- American aliens long before the decision
in a prior similar case. However, the main issue in Luzon
Stevedoring was of transcendental importance, involving the
exercise or enjoyment of rights, franchises, privileges,
properties and businesses which only Filipinos and qualified
corporations could exercise or enjoy under the Constitution
and the statutes. Moreover, the same issue could be raised by
appellant in an appropriate action. Thus, in Luzon
Stevedoring the Court deemed it necessary to finally dispose
of the case for the guidance of all concerned, despite the
apparent procedural flaw in the petition.
The circumstances surrounding the present case, such as the
supposed procedural defect of the petition and the pivotal legal
issue involved, resemble those in Luzon
Stevedoring. Consequently, in the interest of substantial
justice and faithful adherence to the Constitution, we opted to
resolve this case for the guidance of the public and all
concerned parties.
II.
No change of any long-standing rule;
thus, no redefinition of the term "capital."
Movants contend that the term "capital" in Section 11, Article
XII of the Constitution has long been settled and defined to
refer to the total outstanding shares of stock, whether voting or
non-voting. In fact, movants claim that the SEC, which is the
administrative agency tasked to enforce the 60-40 ownership
requirement in favor of Filipino citizens in the Constitution
and various statutes, has consistently adopted this particular
definition in its numerous opinions. Movants point out that
with the 28 June 2011 Decision, the Court in effect introduced
a "new" definition or "midstream redefinition"9 of the term
"capital" in Section 11, Article XII of the Constitution.
This is egregious error.
For more than 75 years since the 1935 Constitution, the Court
has not interpreted or defined the term "capital" found in
various economic provisions of the 1935, 1973 and 1987
Constitutions. There has never been a judicial precedent
interpreting the term "capital" in the 1935, 1973 and 1987
Constitutions, until now. Hence, it is patently wrong and
utterly baseless to claim that the Court in defining the term
"capital" in its 28 June 2011 Decision modified, reversed, or
set aside the purported long-standing definition of the term
"capital," which supposedly refers to the total outstanding
shares of stock, whether voting or non-voting. To repeat, until
the present case there has never been a Court ruling
categorically defining the term "capital" found in the various
economic provisions of the 1935, 1973 and 1987 Philippine
Constitutions.
The opinions of the SEC, as well as of the Department of
Justice (DOJ), on the definition of the term "capital" as
referring to both voting and non-voting shares (combined total
of common and preferred shares) are, in the first place,
conflicting and inconsistent. There is no basis whatsoever to
the claim that the SEC and the DOJ have consistently and
uniformly adopted a definition of the term "capital" contrary
to the definition that this Court adopted in its 28 June 2011
Decision.
In DOJ Opinion No. 130, s. 1985,10 dated 7 October 1985, the
scope of the term "capital" in Section 9, Article XIV of the
1973 Constitution was raised, that is, whether the term
"capital" includes "both preferred and common stocks." The
issue was raised in relation to a stock-swap transaction
between a Filipino and a Japanese corporation, both
stockholders of a domestic corporation that owned lands in the
Philippines. Then Minister of Justice Estelito P. Mendoza
ruled that the resulting ownership structure of the corporation
would be unconstitutional because 60% of the voting stock
would be owned by Japanese while Filipinos would own only
40% of the voting stock, although when the non-voting stock
is added, Filipinos would own 60% of the combined voting
and non-voting stock. This ownership structure is remarkably
similar to the current ownership structure of PLDT. Minister
Mendoza ruled:
xxxx
Thus, the Filipino group still owns sixty (60%) of the entire
subscribed capital stock (common and preferred) while the
Japanese investors control sixty percent (60%) of the common
(voting) shares.
It is your position that x x x since Section 9, Article XIV of
the Constitution uses the word "capital," which is construed
"to include both preferred and common shares" and "that
where the law does not distinguish, the courts shall not
distinguish."
xxxx
In light of the foregoing jurisprudence, it is my opinion that
the stock-swap transaction in question may not be
constitutionally upheld. While it may be ordinary corporate
practice to classify corporate shares into common voting
shares and preferred non-voting shares, any arrangement
which attempts to defeat the constitutional purpose should be
eschewed. Thus, the resultant equity arrangement which
would place ownership of 60%11 of the common (voting)
shares in the Japanese group, while retaining 60% of the total
percentage of common and preferred shares in Filipino hands
would amount to circumvention of the principle of control by
Philippine stockholders that is implicit in the 60% Philippine
nationality requirement in the Constitution. (Emphasis
supplied)
In short, Minister Mendoza categorically rejected the theory
that the term "capital" in Section 9, Article XIV of the 1973
Constitution includes "both preferred and common stocks"
treated as the same class of shares regardless of differences in
voting rights and privileges. Minister Mendoza stressed that
the 60-40 ownership requirement in favor of Filipino citizens
in the Constitution is not complied with unless the corporation
"satisfies the criterion of beneficial ownership" and that in
applying the same "the primordial consideration is situs of
control."
On the other hand, in Opinion No. 23-10 dated 18 August
2010, addressed to Castillo Laman Tan Pantaleon & San Jose,
then SEC General Counsel Vernette G. Umali-Paco applied
the Voting Control Test, that is, using only the voting stock to
determine whether a corporation is a Philippine national. The
Opinion states:
Applying the foregoing, particularly the Control Test, MLRC
is deemed as a Philippine national because: (1) sixty percent
(60%) of its outstanding capital stock entitled to vote is owned
by a Philippine national, the Trustee; and (2) at least sixty
percent (60%) of the ERF will accrue to the benefit of
Philippine nationals. Still pursuant to the Control Test,
MLRC’s investment in 60% of BFDC’s outstanding capital
stock entitled to vote shall be deemed as of Philippine
nationality, thereby qualifying BFDC to own private land.
Further, under, and for purposes of, the FIA, MLRC and
BFDC are both Philippine nationals, considering that: (1) sixty
percent (60%) of their respective outstanding capital
stock entitled to vote is owned by a Philippine national (i.e.,
by the Trustee, in the case of MLRC; and by MLRC, in the
case of BFDC); and (2) at least 60% of their respective board
of directors are Filipino citizens. (Boldfacing and italicization
supplied)
Clearly, these DOJ and SEC opinions are compatible with the
Court’s interpretation of the 60-40 ownership requirement in
favor of Filipino citizens mandated by the Constitution for
certain economic activities. At the same time, these opinions
highlight the conflicting, contradictory, and inconsistent
positions taken by the DOJ and the SEC on the definition of
the term "capital" found in the economic provisions of the
Constitution.
The opinions issued by SEC legal officers do not have the
force and effect of SEC rules and regulations because only the
SEC en banc can adopt rules and regulations. As expressly
provided in Section 4.6 of the Securities Regulation
Code,12 the SEC cannot delegate to any of its individual
Commissioner or staff the power to adopt any rule or
regulation. Further, under Section 5.1 of the same Code, it
is the SEC as a collegial body, and not any of its legal officers,
that is empowered to issue opinions and approve rules and
regulations. Thus:
4.6. The Commission may, for purposes of efficiency,
delegate any of its functions to any department or office of the
Commission, an individual Commissioner or staff member of
the Commission except its review or appellate authority
and its power to adopt, alter and supplement any rule or
regulation.
The Commission may review upon its own initiative or upon
the petition of any interested party any action of any
department or office, individual Commissioner, or staff
member of the Commission.
SEC. 5. Powers and Functions of the Commission.- 5.1. The
Commission shall act with transparency and shall have the
powers and functions provided by this Code, Presidential
Decree No. 902-A, the Corporation Code, the Investment
Houses Law, the Financing Company Act and other existing
laws. Pursuant thereto the Commission shall have, among
others, the following powers and functions:
xxxx
(g) Prepare, approve, amend or repeal rules, regulations and
orders, and issue opinions and provide guidance on and
supervise compliance with such rules, regulations and orders;
x x x x (Emphasis supplied)
Thus, the act of the individual Commissioners or legal officers
of the SEC in issuing opinions that have the effect of SEC
rules or regulations is ultra vires. Under Sections 4.6 and
5.1(g) of the Code, only the SEC en banc can "issue opinions"
that have the force and effect of rules or regulations. Section
4.6 of the Code bars the SEC en banc from delegating to any
individual Commissioner or staff the power to adopt rules or
regulations. In short, any opinion of individual Commissioners
or SEC legal officers does not constitute a rule or regulation of
the SEC.
The SEC admits during the Oral Arguments that only the
SEC en banc, and not any of its individual commissioners or
legal staff, is empowered to issue opinions which have the
same binding effect as SEC rules and regulations, thus:
JUSTICE CARPIO:
So, under the law, it is the Commission En Banc that can issue
an
SEC Opinion, correct?
COMMISSIONER GAITE:13
That’s correct, Your Honor.
JUSTICE CARPIO:
Can the Commission En Banc delegate this function to an
SEC officer?
COMMISSIONER GAITE:
Yes, Your Honor, we have delegated it to the General
Counsel.
JUSTICE CARPIO:
It can be delegated. What cannot be delegated by the
Commission En Banc to a commissioner or an individual
employee of the Commission?
COMMISSIONER GAITE:
Novel opinions that [have] to be decided by the En Banc...
JUSTICE CARPIO:
What cannot be delegated, among others, is the power to adopt
or amend rules and regulations, correct?
COMMISSIONER GAITE:
That’s correct, Your Honor.
JUSTICE CARPIO:
So, you combine the two (2), the SEC officer, if delegated that
power, can issue an opinion but that opinion does not
constitute a rule or regulation, correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
So, all of these opinions that you mentioned they are not rules
and regulations, correct?
COMMISSIONER GAITE:
They are not rules and regulations.
JUSTICE CARPIO:
If they are not rules and regulations, they apply only to that
particular situation and will not constitute a precedent,
correct?
COMMISSIONER GAITE:
Yes, Your Honor.14 (Emphasis supplied)
Significantly, the SEC en banc, which is the collegial body
statutorily empowered to issue rules and opinions on behalf of
the SEC, has adopted even the Grandfather Rule in
determining compliance with the 60-40 ownership
requirement in favor of Filipino citizens mandated by the
Constitution for certain economic activities. This prevailing
SEC ruling, which the SEC correctly adopted to thwart any
circumvention of the required Filipino "ownership and
control," is laid down in the 25 March 2010 SEC en
banc ruling in Redmont Consolidated Mines, Corp. v.
McArthur Mining, Inc., et al.,15 to wit:
The avowed purpose of the Constitution is to place in the
hands of Filipinos the exploitation of our natural
resources. Necessarily, therefore, the Rule interpreting the
constitutional provision should not diminish that right through
the legal fiction of corporate ownership and control. But the
constitutional provision, as interpreted and practiced via the
1967 SEC Rules, has favored foreigners contrary to the
command of the Constitution. Hence, the Grandfather Rule
must be applied to accurately determine the actual
participation, both direct and indirect, of foreigners in a
corporation engaged in a nationalized activity or business.
Compliance with the constitutional limitation(s) on engaging
in nationalized activities must be determined by ascertaining if
60% of the investing corporation’s outstanding capital stock is
owned by "Filipino citizens", or as interpreted, by natural or
individual Filipino citizens. If such investing corporation is in
turn owned to some extent by another investing corporation,
the same process must be observed. One must not stop until
the citizenships of the individual or natural stockholders of
layer after layer of investing corporations have been
established, the very essence of the Grandfather Rule.
Lastly, it was the intent of the framers of the 1987
Constitution to adopt the Grandfather Rule. In one of the
discussions on what is now Article XII of the present
Constitution, the framers made the following exchange:
MR. NOLLEDO. In Sections 3, 9 and 15, the Committee
stated local or Filipino equity and foreign equity; namely, 60-
40 in Section 3, 60-40 in Section 9, and 2/3-1/3 in Section 15.
MR. VILLEGAS. That is right.
MR. NOLLEDO. In teaching law, we are always faced with
the question: ‘Where do we base the equity requirement, is it
on the authorized capital stock, on the subscribed capital
stock, or on the paid-up capital stock of a corporation’? Will
the Committee please enlighten me on this?
MR. VILLEGAS. We have just had a long discussion with the
members of the team from the UP Law Center who provided
us a draft. The phrase that is contained here which we adopted
from the UP draft is ‘60 percent of voting stock.’
MR. NOLLEDO. That must be based on the subscribed capital
stock, because unless declared delinquent, unpaid capital stock
shall be entitled to vote.
MR. VILLEGAS. That is right.
MR. NOLLEDO. Thank you. With respect to an investment
by one corporation in another corporation, say, a corporation
with 60-40 percent equity invests in another corporation which
is permitted by the Corporation Code, does the Committee
adopt the grandfather rule?
MR. VILLEGAS. Yes, that is the understanding of the
Committee.
MR. NOLLEDO. Therefore, we need additional Filipino
capital?
MR. VILLEGAS. Yes. (Boldfacing and underscoring
supplied; italicization in the original)
This SEC en banc ruling conforms to our 28 June 2011
Decision that the 60-40 ownership requirement in favor of
Filipino citizens in the Constitution to engage in certain
economic activities applies not only to voting control of the
corporation, but also to the beneficial ownership of the
corporation. Thus, in our 28 June 2011 Decision we stated:
Mere legal title is insufficient to meet the 60 percent
Filipinoowned "capital" required in the Constitution. Full
beneficial ownership of 60 percent of the outstanding capital
stock, coupled with 60 percent of the voting rights, is required.
The legal and beneficial ownership of 60 percent of the
outstanding capital stock must rest in the hands of Filipino
nationals in accordance with the constitutional mandate.
Otherwise, the corporation is "considered as non-Philippine
national[s]." (Emphasis supplied)
Both the Voting Control Test and the Beneficial Ownership
Test must be applied to determine whether a corporation is a
"Philippine national."
The interpretation by legal officers of the SEC of the term
"capital," embodied in various opinions which respondents
relied upon, is merely preliminary and an opinion only of such
officers. To repeat, any such opinion does not constitute an
SEC rule or regulation. In fact, many of these opinions contain
a disclaimer which expressly states: "x x x the foregoing
opinion is based solely on facts disclosed in your query and
relevant only to the particular issue raised therein and shall not
be used in the nature of a standing rule binding upon the
Commission in other cases whether of similar or dissimilar
circumstances."16 Thus, the opinions clearly make
a caveat that they do not constitute binding precedents on any
one, not even on the SEC itself.
Likewise, the opinions of the SEC en banc, as well as of the
DOJ, interpreting the law are neither conclusive nor
controlling and thus, do not bind the Court. It is hornbook
doctrine that any interpretation of the law that administrative
or quasi-judicial agencies make is only preliminary, never
conclusive on the Court. The power to make a final
interpretation of the law, in this case the term "capital" in
Section 11, Article XII of the 1987 Constitution, lies with this
Court, not with any other government entity.
In his motion for reconsideration, the PSE President cites the
cases of National Telecommunications Commission v. Court
of Appeals17 and Philippine Long Distance Telephone
Company v. National Telecommunications Commission18 in
arguing that the Court has already defined the term "capital" in
Section 11, Article XII of the 1987 Constitution.19
The PSE President is grossly mistaken. In both cases
of National Telecommunications v. Court of
Appeals20 and Philippine Long Distance Telephone Company
v. National Telecommunications Commission,21 the Court did
not define the term "capital" as found in Section 11, Article
XII of the 1987 Constitution. In fact, these two cases never
mentioned, discussed or cited Section 11, Article XII of the
Constitution or any of its economic provisions, and thus
cannot serve as precedent in the interpretation of Section 11,
Article XII of the Constitution. These two cases dealt solely
with the determination of the correct regulatory fees under
Section 40(e) and (f) of the Public Service Act, to wit:
(e) For annual reimbursement of the expenses incurred by the
Commission in the supervision of other public services and/or
in the regulation or fixing of their rates, twenty centavos for
each one hundred pesos or fraction thereof, of the capital stock
subscribed or paid, or if no shares have been issued, of the
capital invested, or of the property and equipment whichever
is higher.
(f) For the issue or increase of capital stock, twenty centavos
for each one hundred pesos or fraction thereof, of the
increased capital. (Emphasis supplied)
The Court’s interpretation in these two cases of the terms
"capital stock subscribed or paid," "capital stock" and "capital"
does not pertain to, and cannot control, the definition of the
term "capital" as used in Section 11, Article XII of the
Constitution, or any of the economic provisions of the
Constitution where the term "capital" is found. The definition
of the term "capital" found in the Constitution must not be
taken out of context. A careful reading of these two cases
reveals that the terms "capital stock subscribed or paid,"
"capital stock" and "capital" were defined solely to determine
the basis for computing the supervision and regulation fees
under Section 40(e) and (f) of the Public Service Act.
III.
Filipinization of Public Utilities
The Preamble of the 1987 Constitution, as the prologue of the
supreme law of the land, embodies the ideals that the
Constitution intends to achieve.22 The Preamble reads:
We, the sovereign Filipino people, imploring the aid of
Almighty God, in order to build a just and humane society,
and establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and develop
our patrimony, and secure to ourselves and our posterity, the
blessings of independence and democracy under the rule of
law and a regime of truth, justice, freedom, love, equality, and
peace, do ordain and promulgate this Constitution. (Emphasis
supplied)
Consistent with these ideals, Section 19, Article II of the 1987
Constitution declares as State policy the development of a
national economy "effectively controlled" by Filipinos:
Section 19. The State shall develop a self-reliant and
independent national economy effectively controlled by
Filipinos.
Fortifying the State policy of a Filipino-controlled economy,
the Constitution decrees:
Section 10. The Congress shall, upon recommendation of the
economic and planning agency, when the national interest
dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose
capital is owned by such citizens, or such higher percentage as
Congress may prescribe, certain areas of investments. The
Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly
owned by Filipinos.
In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give
preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance
with its national goals and priorities.23
Under Section 10, Article XII of the 1987 Constitution,
Congress may "reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose
capital is owned by such citizens, or such higher percentage as
Congress may prescribe, certain areas of investments." Thus,
in numerous laws Congress has reserved certain areas of
investments to Filipino citizens or to corporations at least sixty
percent of the "capital" of which is owned by Filipino citizens.
Some of these laws are: (1) Regulation of Award of
Government Contracts or R.A. No. 5183; (2) Philippine
Inventors Incentives Act or R.A. No. 3850; (3) Magna Carta
for Micro, Small and Medium Enterprises or R.A. No. 6977;
(4) Philippine Overseas Shipping Development Act or R.A.
No. 7471; (5) Domestic Shipping Development Act of 2004 or
R.A. No. 9295; (6) Philippine Technology Transfer Act of
2009 or R.A. No. 10055; and (7) Ship Mortgage Decree or
P.D. No. 1521.
With respect to public utilities, the 1987 Constitution
specifically ordains:
Section 11. No franchise, certificate, or any other form of
authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to corporations
or associations organized under the laws of the Philippines, at
least sixty per centum of whose capital is owned by such
citizens; nor shall such franchise, certificate, or authorization
be exclusive in character or for a longer period than fifty
years. Neither shall any such franchise or right be granted
except under the condition that it shall be subject to
amendment, alteration, or repeal by the Congress when the
common good so requires. The State shall encourage equity
participation in public utilities by the general public. The
participation of foreign investors in the governing body of any
public utility enterprise shall be limited to their proportionate
share in its capital, and all the executive and managing officers
of such corporation or association must be citizens of the
Philippines. (Emphasis supplied)
This provision, which mandates the Filipinization of public
utilities, requires that any form of authorization for the
operation of public utilities shall be granted only to "citizens
of the Philippines or to corporations or associations organized
under the laws of the Philippines at least sixty per centum of
whose capital is owned by such citizens." "The provision is
[an express] recognition of the sensitive and vital position of
public utilities both in the national economy and for national
security."24
The 1987 Constitution reserves the ownership and operation
of public utilities exclusively to (1) Filipino citizens, or (2)
corporations or associations at least 60 percent of whose
"capital" is owned by Filipino citizens. Hence, in the case of
individuals, only Filipino citizens can validly own and operate
a public utility. In the case of corporations or associations, at
least 60 percent of their "capital" must be owned by Filipino
citizens. In other words, under Section 11, Article XII of the
1987 Constitution, to own and operate a public utility a
corporation’s capital must at least be 60 percent owned
by Philippine nationals.
IV.
Definition of "Philippine National"
Pursuant to the express mandate of Section 11, Article XII of
the 1987 Constitution, Congress enacted Republic Act No.
7042 or the Foreign Investments Act of 1991 (FIA), as
amended, which defined a "Philippine national" as follows:
SEC. 3. Definitions. - As used in this Act:
a. The term "Philippine national" shall mean a citizen of the
Philippines; or a domestic partnership or association wholly
owned by citizens of the Philippines; or a corporation
organized under the laws of the Philippines of which at least
sixty percent (60%) of the capital stock outstanding and
entitled to vote is owned and held by citizens of the
Philippines; or a corporation organized abroad and registered
as doing business in the Philippines under the Corporation
Code of which one hundred percent (100%) of the capital
stock outstanding and entitled to vote is wholly owned by
Filipinos or a trustee of funds for pension or other employee
retirement or separation benefits, where the trustee is a
Philippine national and at least sixty percent (60%) of the fund
will accrue to the benefit of Philippine nationals: Provided,
That where a corporation and its non-Filipino stockholders
own stocks in a Securities and Exchange Commission (SEC)
registered enterprise, at least sixty percent (60%) of the capital
stock outstanding and entitled to vote of each of both
corporations must be owned and held by citizens of the
Philippines and at least sixty percent (60%) of the members of
the Board of Directors of each of both corporations must be
citizens of the Philippines, in order that the corporation, shall
be considered a "Philippine national." (Boldfacing,
italicization and underscoring supplied)
Thus, the FIA clearly and unequivocally defines a "Philippine
national" as a Philippine citizen, or a domestic corporation at
least "60% of the capital stock outstanding and entitled to
vote" is owned by Philippine citizens.
The definition of a "Philippine national" in the FIA reiterated
the meaning of such term as provided in its predecessor
statute, Executive Order No. 226 or the Omnibus Investments
Code of 1987,25 which was issued by then President Corazon
C. Aquino. Article 15 of this Code states:
Article 15. "Philippine national" shall mean a citizen of the
Philippines or a diplomatic partnership or association wholly-
owned by citizens of the Philippines; or a corporation
organized under the laws of the Philippines of which at least
sixty per cent (60%) of the capital stock outstanding and
entitled to vote is owned and held by citizens of the
Philippines; or a trustee of funds for pension or other
employee retirement or separation benefits, where the trustee
is a Philippine national and at least sixty per cent (60%) of the
fund will accrue to the benefit of Philippine nationals:
Provided, That where a corporation and its non-Filipino
stockholders own stock in a registered enterprise, at least sixty
per cent (60%) of the capital stock outstanding and entitled to
vote of both corporations must be owned and held by the
citizens of the Philippines and at least sixty per cent (60%) of
the members of the Board of Directors of both corporations
must be citizens of the Philippines in order that the
corporation shall be considered a Philippine national.
(Boldfacing, italicization and underscoring supplied)
Under Article 48(3)26 of the Omnibus Investments Code of
1987, "no corporation x x x which is not a ‘Philippine
national’ x x x shall do business
x x x in the Philippines x x x without first securing from the
Board of Investments a written certificate to the effect that
such business or economic activity x x x would not conflict
with the Constitution or laws of the Philippines."27 Thus, a
"non-Philippine national" cannot own and operate a reserved
economic activity like a public utility. This means, of course,
that only a "Philippine national" can own and operate a public
utility.
In turn, the definition of a "Philippine national" under Article
15 of the Omnibus Investments Code of 1987 was a reiteration
of the meaning of such term as provided in Article 14 of
the Omnibus Investments Code of 1981,28 to wit:
Article 14. "Philippine national" shall mean a citizen of the
Philippines; or a domestic partnership or association wholly
owned by citizens of the Philippines; or a corporation
organized under the laws of the Philippines of which at least
sixty per cent (60%) of the capital stock outstanding and
entitled to vote is owned and held by citizens of the
Philippines; or a trustee of funds for pension or other
employee retirement or separation benefits, where the trustee
is a Philippine national and at least sixty per cent (60%) of the
fund will accrue to the benefit of Philippine nationals:
Provided, That where a corporation and its non-Filipino
stockholders own stock in a registered enterprise, at least sixty
per cent (60%) of the capital stock outstanding and entitled to
vote of both corporations must be owned and held by the
citizens of the Philippines and at least sixty per cent (60%) of
the members of the Board of Directors of both corporations
must be citizens of the Philippines in order that the
corporation shall be considered a Philippine national.
(Boldfacing, italicization and underscoring supplied)
Under Article 69(3) of the Omnibus Investments Code of
1981, "no corporation x x x which is not a ‘Philippine
national’ x x x shall do business x x x in the Philippines x x x
without first securing a written certificate from the Board of
Investments to the effect that such business or economic
activity x x x would not conflict with the Constitution or laws
of the Philippines."29 Thus, a "non-Philippine national"
cannot own and operate a reserved economic activity like a
public utility. Again, this means that only a "Philippine
national" can own and operate a public utility.
Prior to the Omnibus Investments Code of 1981, Republic Act
No. 518630 or the Investment Incentives Act, which took
effect on 16 September 1967, contained a similar definition of
a "Philippine national," to wit:
(f) "Philippine National" shall mean a citizen of the
Philippines; or a partnership or association wholly owned by
citizens of the Philippines; or a corporation organized under
the laws of the Philippines of which at least sixty per cent of
the capital stock outstanding and entitled to vote is owned and
held by citizens of the Philippines; or a trustee of funds for
pension or other employee retirement or separation benefits,
where the trustee is a Philippine National and at least sixty per
cent of the fund will accrue to the benefit of Philippine
Nationals: Provided, That where a corporation and its non-
Filipino stockholders own stock in a registered enterprise, at
least sixty per cent of the capital stock outstanding and entitled
to vote of both corporations must be owned and held by the
citizens of the Philippines and at least sixty per cent of the
members of the Board of Directors of both corporations must
be citizens of the Philippines in order that the corporation shall
be considered a Philippine National. (Boldfacing, italicization
and underscoring supplied)
Under Section 3 of Republic Act No. 5455 or the Foreign
Business Regulations Act, which took effect on 30 September
1968, if the investment in a domestic enterprise by non-
Philippine nationals exceeds 30% of its outstanding capital
stock, such enterprise must obtain prior approval from the
Board of Investments before accepting such investment. Such
approval shall not be granted if the investment "would conflict
with existing constitutional provisions and laws regulating the
degree of required ownership by Philippine nationals in the
enterprise."31 A "non-Philippine national" cannot own and
operate a reserved economic activity like a public utility.
Again, this means that only a "Philippine national" can own
and operate a public utility.
The FIA, like all its predecessor statutes, clearly defines a
"Philippine national" as a Filipino citizen, or a domestic
corporation "at least sixty percent (60%) of the capital stock
outstanding and entitled to vote" is owned by Filipino citizens.
A domestic corporation is a "Philippine national" only if at
least 60% of its voting stock is owned by Filipino citizens.
This definition of a "Philippine national" is crucial in the
present case because the FIA reiterates and clarifies Section
11, Article XII of the 1987 Constitution, which limits the
ownership and operation of public utilities to Filipino citizens
or to corporations or associations at least 60% Filipino-owned.
The FIA is the basic law governing foreign investments in the
Philippines, irrespective of the nature of business and area of
investment. The FIA spells out the procedures by which non-
Philippine nationals can invest in the Philippines. Among the
key features of this law is the concept of a negative list or the
Foreign Investments Negative List.32 Section 8 of the law
states:
SEC. 8. List of Investment Areas Reserved to Philippine
Nationals [Foreign Investment Negative List]. - The Foreign
Investment Negative List shall have two 2 component
lists: A and B:
a. List A shall enumerate the areas of activities reserved to
Philippine nationals by mandate of the Constitution and
specific laws.
b. List B shall contain the areas of activities and enterprises
regulated pursuant to law:
1. which are defense-related activities, requiring prior
clearance and authorization from the Department of National
Defense [DND] to engage in such activity, such as the
manufacture, repair, storage and/or distribution of firearms,
ammunition, lethal weapons, military ordinance, explosives,
pyrotechnics and similar materials; unless such manufacturing
or repair activity is specifically authorized, with a substantial
export component, to a non-Philippine national by the
Secretary of National Defense; or
2. which have implications on public health and morals, such
as the manufacture and distribution of dangerous drugs; all
forms of gambling; nightclubs, bars, beer houses, dance halls,
sauna and steam bathhouses and massage clinics. (Boldfacing,
underscoring and italicization supplied)
Section 8 of the FIA enumerates the investment areas
"reserved to Philippine nationals." Foreign Investment
Negative List A consists of "areas of activities reserved to
Philippine nationals by mandate of the Constitution and
specific laws," where foreign equity participation in any
enterprise shall be limited to the maximum percentage
expressly prescribed by the Constitution and other specific
laws. In short, to own and operate a public utility in the
Philippines one must be a "Philippine national" as defined in
the FIA. The FIA is abundant notice to foreign investors to
what extent they can invest in public utilities in the
Philippines.
To repeat, among the areas of investment covered by the
Foreign Investment Negative List A is the ownership and
operation of public utilities, which the Constitution expressly
reserves to Filipino citizens and to corporations at least 60%
owned by Filipino citizens. In other words, Negative List A of
the FIA reserves the ownership and operation of public
utilities only to "Philippine nationals," defined in Section 3(a)
of the FIA as "(1) a citizen of the Philippines; x x x or (3) a
corporation organized under the laws of the Philippines of
which at least sixty percent (60%) of the capital stock
outstanding and entitled to vote is owned and held by citizens
of the Philippines; or (4) a corporation organized abroad and
registered as doing business in the Philippines under the
Corporation Code of which one hundred percent (100%) of the
capital stock outstanding and entitled to vote is wholly owned
by Filipinos or a trustee of funds for pension or other
employee retirement or separation benefits, where the trustee
is a Philippine national and at least sixty percent (60%) of the
fund will accrue to the benefit of Philippine nationals."
Clearly, from the effectivity of the Investment Incentives Act
of 1967 to the adoption of the Omnibus Investments Code of
1981, to the enactment of the Omnibus Investments Code of
1987, and to the passage of the present Foreign Investments
Act of 1991, or for more than four decades, the statutory
definition of the term "Philippine national" has been uniform
and consistent: it means a Filipino citizen, or a domestic
corporation at least 60% of the voting stock is owned by
Filipinos. Likewise, these same statutes have uniformly and
consistently required that only "Philippine nationals" could
own and operate public utilities in the Philippines. The
following exchange during the Oral Arguments is revealing:
JUSTICE CARPIO:
Counsel, I have some questions. You are aware of the Foreign
Investments Act of 1991, x x x? And the FIA of 1991 took
effect in 1991, correct? That’s over twenty (20) years ago,
correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
And Section 8 of the Foreign Investments Act of 1991 states
that []only Philippine nationals can own and operate public
utilities[], correct?
COMMISSIONER GAITE:
Yes, Your Honor.
JUSTICE CARPIO:
And the same Foreign Investments Act of 1991 defines a
"Philippine national" either as a citizen of the Philippines, or if
it is a corporation at least sixty percent (60%) of the voting
stock is owned by citizens of the Philippines, correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
And, you are also aware that under the predecessor law of the
Foreign Investments Act of 1991, the Omnibus Investments
Act of 1987, the same provisions apply: x x x only Philippine
nationals can own and operate a public utility and the
Philippine national, if it is a corporation, x x x sixty percent
(60%) of the capital stock of that corporation must be owned
by citizens of the Philippines, correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
And even prior to the Omnibus Investments Act of 1987,
under the Omnibus Investments Act of 1981, the same rules
apply: x x x only a Philippine national can own and operate a
public utility and a Philippine national, if it is a corporation,
sixty percent (60%) of its x x x voting stock, must be owned
by citizens of the Philippines, correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
And even prior to that, under [the]1967 Investments Incentives
Act and the Foreign Company Act of 1968, the same rules
applied, correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
So, for the last four (4) decades, x x x, the law has been very
consistent – only a Philippine national can own and operate a
public utility, and a Philippine national, if it is a corporation, x
x x at least sixty percent (60%) of the voting stock must be
owned by citizens of the Philippines, correct?
COMMISSIONER GAITE:
Correct, Your Honor.33 (Emphasis supplied)
Government agencies like the SEC cannot simply ignore
Sections 3(a) and 8 of the FIA which categorically prescribe
that certain economic activities, like the ownership and
operation of public utilities, are reserved to corporations "at
least sixty percent (60%) of the capital stock outstanding and
entitled to vote is owned and held by citizens of the
Philippines." Foreign Investment Negative List A refers to
"activities reserved to Philippine nationals by mandate of the
Constitution and specific laws." The FIA is the basic statute
regulating foreign investments in the Philippines. Government
agencies tasked with regulating or monitoring foreign
investments, as well as counsels of foreign investors, should
start with the FIA in determining to what extent a particular
foreign investment is allowed in the Philippines. Foreign
investors and their counsels who ignore the FIA do so at their
own peril. Foreign investors and their counsels who rely on
opinions of SEC legal officers that obviously contradict the
FIA do so also at their own peril.
Occasional opinions of SEC legal officers that obviously
contradict the FIA should immediately raise a red flag. There
are already numerous opinions of SEC legal officers that cite
the definition of a "Philippine national" in Section 3(a) of the
FIA in determining whether a particular corporation is
qualified to own and operate a nationalized or partially
nationalized business in the Philippines. This shows that SEC
legal officers are not only aware of, but also rely on and
invoke, the provisions of the FIA in ascertaining the eligibility
of a corporation to engage in partially nationalized industries.
The following are some of such opinions:
1. Opinion of 23 March 1993, addressed to Mr. Francis F.
How;
2. Opinion of 14 April 1993, addressed to Director Angeles T.
Wong of the Philippine Overseas Employment
Administration;
3. Opinion of 23 November 1993, addressed to Messrs.
Dominador Almeda and Renato S. Calma;
4. Opinion of 7 December 1993, addressed to Roco Bunag
Kapunan Migallos & Jardeleza;
5. SEC Opinion No. 49-04, addressed to Romulo Mabanta
Buenaventura Sayoc & De Los Angeles;
6. SEC-OGC Opinion No. 17-07, addressed to Mr. Reynaldo
G. David; and
7. SEC-OGC Opinion No. 03-08, addressed to Attys. Ruby
Rose J. Yusi and Rudyard S. Arbolado.
The SEC legal officers’ occasional but blatant disregard of the
definition of the term "Philippine national" in the FIA signifies
their lack of integrity and competence in resolving issues on
the 60-40 ownership requirement in favor of Filipino citizens
in Section 11, Article XII of the Constitution.
The PSE President argues that the term "Philippine national"
defined in the FIA should be limited and interpreted to refer to
corporations seeking to avail of tax and fiscal incentives under
investment incentives laws and cannot be equated with the
term "capital" in Section 11, Article XII of the 1987
Constitution. Pangilinan similarly contends that the FIA and
its predecessor statutes do not apply to "companies which
have not registered and obtained special incentives under the
schemes established by those laws."
Both are desperately grasping at straws. The FIA does not
grant tax or fiscal incentives to any enterprise. Tax and fiscal
incentives to investments are granted separately under the
Omnibus Investments Code of 1987, not under the FIA. In
fact, the FIA expressly repealed Articles 44 to 56 of Book II of
the Omnibus Investments Code of 1987, which articles
previously regulated foreign investments in nationalized or
partially nationalized industries.
The FIA is the applicable law regulating foreign investments
in nationalized or partially nationalized industries. There is
nothing in the FIA, or even in the Omnibus Investments Code
of 1987 or its predecessor statutes, that states, expressly or
impliedly, that the FIA or its predecessor statutes do not apply
to enterprises not availing of tax and fiscal incentives under
the Code. The FIA and its predecessor statutes apply to
investments in all domestic enterprises, whether or not such
enterprises enjoy tax and fiscal incentives under the Omnibus
Investments Code of 1987 or its predecessor statutes. The
reason is quite obvious – mere non-availment of tax and fiscal
incentives by a non-Philippine national cannot exempt it from
Section 11, Article XII of the Constitution regulating foreign
investments in public utilities. In fact, the Board of
Investments’ Primer on Investment Policies in the
Philippines,34 which is given out to foreign investors,
provides:
PART III. FOREIGN INVESTMENTS WITHOUT
INCENTIVES
Investors who do not seek incentives and/or whose chosen
activities do not qualify for incentives, (i.e., the activity is not
listed in the IPP, and they are not exporting at least 70% of
their production) may go ahead and make the investments
without seeking incentives. They only have to be guided by
the Foreign Investments Negative List (FINL).
The FINL clearly defines investment areas requiring at least
60% Filipino ownership. All other areas outside of this list are
fully open to foreign investors. (Emphasis supplied)
V.
Right to elect directors, coupled with beneficial ownership,
translates to effective control.
The 28 June 2011 Decision declares that the 60 percent
Filipino ownership required by the Constitution to engage in
certain economic activities applies not only to voting control
of the corporation, but also to the beneficial ownership of the
corporation. To repeat, we held:
Mere legal title is insufficient to meet the 60 percent Filipino-
owned "capital" required in the Constitution. Full beneficial
ownership of 60 percent of the outstanding capital stock,
coupled with 60 percent of the voting rights, is required. The
legal and beneficial ownership of 60 percent of the
outstanding capital stock must rest in the hands of Filipino
nationals in accordance with the constitutional mandate.
Otherwise, the corporation is "considered as non-Philippine
national[s]." (Emphasis supplied)
This is consistent with Section 3 of the FIA which provides
that where 100% of the capital stock is held by "a trustee of
funds for pension or other employee retirement or separation
benefits," the trustee is a Philippine national if "at least sixty
percent (60%) of the fund will accrue to the benefit of
Philippine nationals." Likewise, Section 1(b) of the
Implementing Rules of the FIA provides that "for stocks to be
deemed owned and held by Philippine citizens or Philippine
nationals, mere legal title is not enough to meet the required
Filipino equity. Full beneficial ownership of the stocks,
coupled with appropriate voting rights, is essential."
Since the constitutional requirement of at least 60 percent
Filipino ownership applies not only to voting control of the
corporation but also to the beneficial ownership of the
corporation, it is therefore imperative that such requirement
apply uniformly and across the board to all classes of shares,
regardless of nomenclature and category, comprising the
capital of a corporation. Under the Corporation Code, capital
stock35 consists of all classes of shares issued to stockholders,
that is, common shares as well as preferred shares, which may
have different rights, privileges or restrictions as stated in the
articles of incorporation.36
The Corporation Code allows denial of the right to vote to
preferred and redeemable shares, but disallows denial of the
right to vote in specific corporate matters. Thus, common
shares have the right to vote in the election of directors, while
preferred shares may be denied such right. Nonetheless,
preferred shares, even if denied the right to vote in the election
of directors, are entitled to vote on the following corporate
matters: (1) amendment of articles of incorporation; (2)
increase and decrease of capital stock; (3) incurring, creating
or increasing bonded indebtedness; (4) sale, lease, mortgage or
other disposition of substantially all corporate assets; (5)
investment of funds in another business or corporation or for a
purpose other than the primary purpose for which the
corporation was organized; (6) adoption, amendment and
repeal of by-laws; (7) merger and consolidation; and (8)
dissolution of corporation.37
Since a specific class of shares may have rights and privileges
or restrictions different from the rest of the shares in a
corporation, the 60-40 ownership requirement in favor of
Filipino citizens in Section 11, Article XII of the Constitution
must apply not only to shares with voting rights but also to
shares without voting rights. Preferred shares, denied the right
to vote in the election of directors, are anyway still entitled to
vote on the eight specific corporate matters mentioned
above. Thus, if a corporation, engaged in a partially
nationalized industry, issues a mixture of common and
preferred non-voting shares, at least 60 percent of the common
shares and at least 60 percent of the preferred non-voting
shares must be owned by Filipinos. Of course, if a corporation
issues only a single class of shares, at least 60 percent of such
shares must necessarily be owned by Filipinos. In short, the
60-40 ownership requirement in favor of Filipino citizens
must apply separately to each class of shares, whether
common, preferred non-voting, preferred voting or any other
class of shares. This uniform application of the 60-40
ownership requirement in favor of Filipino citizens clearly
breathes life to the constitutional command that the ownership
and operation of public utilities shall be reserved exclusively
to corporations at least 60 percent of whose capital is Filipino-
owned. Applying uniformly the 60-40 ownership requirement
in favor of Filipino citizens to each class of shares, regardless
of differences in voting rights, privileges and restrictions,
guarantees effective Filipino control of public utilities, as
mandated by the Constitution.
Moreover, such uniform application to each class of shares
insures that the "controlling interest" in public utilities always
lies in the hands of Filipino citizens. This addresses and
extinguishes Pangilinan’s worry that foreigners, owning most
of the non-voting shares, will exercise greater control over
fundamental corporate matters requiring two-thirds or
majority vote of all shareholders.
VI.
Intent of the framers of the Constitution
While Justice Velasco quoted in his Dissenting Opinion38 a
portion of the deliberations of the Constitutional Commission
to support his claim that the term "capital" refers to the total
outstanding shares of stock, whether voting or non-voting, the
following excerpts of the deliberations reveal otherwise. It is
clear from the following exchange that the term "capital"
refers to controlling interest of a corporation, thus:
MR. NOLLEDO. In Sections 3, 9 and 15, the Committee
stated local or Filipino equity and foreign equity; namely, 60-
40 in Section 3, 60-40 in Section 9 and 2/3-1/3 in Section 15.
MR. VILLEGAS. That is right.
MR. NOLLEDO. In teaching law, we are always faced with
this question: "Where do we base the equity requirement, is it
on the authorized capital stock, on the subscribed capital
stock, or on the paid-up capital stock of a corporation"? Will
the Committee please enlighten me on this?
MR. VILLEGAS. We have just had a long discussion with the
members of the team from the UP Law Center who provided
us a draft. The phrase that is contained here which we adopted
from the UP draft is "60 percent of voting stock."
MR. NOLLEDO. That must be based on the subscribed capital
stock, because unless declared delinquent, unpaid capital stock
shall be entitled to vote.
MR. VILLEGAS. That is right.
MR. NOLLEDO. Thank you.
With respect to an investment by one corporation in another
corporation, say, a corporation with 60-40 percent equity
invests in another corporation which is permitted by the
Corporation Code, does the Committee adopt the grandfather
rule?
MR. VILLEGAS. Yes, that is the understanding of the
Committee.
MR. NOLLEDO. Therefore, we need additional Filipino
capital?
MR. VILLEGAS. Yes.39
xxxx
MR. AZCUNA. May I be clarified as to that portion that was
accepted by the Committee.
MR. VILLEGAS. The portion accepted by the Committee is
the deletion of the phrase "voting stock or controlling
interest."
MR. AZCUNA. Hence, without the Davide amendment, the
committee report would read: "corporations or associations at
least sixty percent of whose CAPITAL is owned by such
citizens."
MR. VILLEGAS. Yes.
MR. AZCUNA. So if the Davide amendment is lost, we are
stuck with 60 percent of the capital to be owned by citizens.
MR. VILLEGAS. That is right.
MR. AZCUNA. But the control can be with the foreigners
even if they are the minority. Let us say 40 percent of the
capital is owned by them, but it is the voting capital, whereas,
the Filipinos own the nonvoting shares. So we can have a
situation where the corporation is controlled by foreigners
despite being the minority because they have the voting
capital. That is the anomaly that would result here.
MR. BENGZON. No, the reason we eliminated the word
"stock" as stated in the 1973 and 1935 Constitutions is that
according to Commissioner Rodrigo, there are associations
that do not have stocks. That is why we say "CAPITAL."
MR. AZCUNA. We should not eliminate the phrase
"controlling interest."
MR. BENGZON. In the case of stock corporations, it is
assumed.40 (Boldfacing and underscoring supplied)
Thus, 60 percent of the "capital" assumes, or should result in,
a "controlling interest" in the corporation.
The use of the term "capital" was intended to replace the word
"stock" because associations without stocks can operate public
utilities as long as they meet the 60-40 ownership requirement
in favor of Filipino citizens prescribed in Section 11, Article
XII of the Constitution. However, this did not change the
intent of the framers of the Constitution to reserve exclusively
to Philippine nationals the "controlling interest" in public
utilities.
During the drafting of the 1935 Constitution, economic
protectionism was "the battle-cry of the nationalists in the
Convention."41 The same battle-cry resulted in the
nationalization of the public utilities.42 This is also the same
intent of the framers of the 1987 Constitution who adopted the
exact formulation embodied in the 1935 and 1973
Constitutions on foreign equity limitations in partially
nationalized industries.
The OSG, in its own behalf and as counsel for the
State,43 agrees fully with the Court’s interpretation of the
term "capital." In its Consolidated Comment, the OSG
explains that the deletion of the phrase "controlling interest"
and replacement of the word "stock" with the term "capital"
were intended specifically to extend the scope of the entities
qualified to operate public utilities to include associations
without stocks. The framers’ omission of the phrase
"controlling interest" did not mean the inclusion of all shares
of stock, whether voting or non-voting. The OSG reiterated
essentially the Court’s declaration that the Constitution
reserved exclusively to Philippine nationals the ownership and
operation of public utilities consistent with the State’s policy
to "develop a self-reliant and independent national
economy effectively controlled by Filipinos."
As we held in our 28 June 2011 Decision, to construe broadly
the term "capital" as the total outstanding capital stock, treated
as a single class regardless of the actual classification of
shares, grossly contravenes the intent and letter of the
Constitution that the "State shall develop a self-reliant and
independent national economy effectively controlled by
Filipinos." We illustrated the glaring anomaly which would
result in defining the term "capital" as the total outstanding
capital stock of a corporation, treated as a single class of
shares regardless of the actual classification of shares, to wit:
Let us assume that a corporation has 100 common shares
owned by foreigners and 1,000,000 non-voting preferred
shares owned by Filipinos, with both classes of share having a
par value of one peso (₱ 1.00) per share. Under the broad
definition of the term "capital," such corporation would be
considered compliant with the 40 percent constitutional limit
on foreign equity of public utilities since the overwhelming
majority, or more than 99.999 percent, of the total outstanding
capital stock is Filipino owned. This is obviously absurd.
In the example given, only the foreigners holding the common
shares have voting rights in the election of directors, even if
they hold only 100 shares. The foreigners, with a minuscule
equity of less than 0.001 percent, exercise control over the
public utility. On the other hand, the Filipinos, holding more
than 99.999 percent of the equity, cannot vote in the election
of directors and hence, have no control over the public utility.
This starkly circumvents the intent of the framers of the
Constitution, as well as the clear language of the Constitution,
to place the control of public utilities in the hands of Filipinos.
xxx
Further, even if foreigners who own more than forty percent of
the voting shares elect an all-Filipino board of directors, this
situation does not guarantee Filipino control and does not in
any way cure the violation of the Constitution. The
independence of the Filipino board members so elected by
such foreign shareholders is highly doubtful. As the OSG
pointed out, quoting Justice George Sutherland’s words
in Humphrey’s Executor v. US,44 "x x x it is quite evident
that one who holds his office only during the pleasure of
another cannot be depended upon to maintain an attitude of
independence against the latter’s will." Allowing foreign
shareholders to elect a controlling majority of the board, even
if all the directors are Filipinos, grossly circumvents the letter
and intent of the Constitution and defeats the very purpose of
our nationalization laws.
VII.
Last sentence of Section 11, Article XII of the Constitution
The last sentence of Section 11, Article XII of the 1987
Constitution reads:
The participation of foreign investors in the governing body of
any public utility enterprise shall be limited to their
proportionate share in its capital, and all the executive and
managing officers of such corporation or association must be
citizens of the Philippines.
During the Oral Arguments, the OSG emphasized that there
was never a question on the intent of the framers of the
Constitution to limit foreign ownership, and assure majority
Filipino ownership and control of public utilities. The OSG
argued, "while the delegates disagreed as to the percentage
threshold to adopt, x x x the records show they clearly
understood that Filipino control of the public utility
corporation can only be and is obtained only through the
election of a majority of the members of the board."
Indeed, the only point of contention during the deliberations of
the Constitutional Commission on 23 August 1986 was the
extent of majority Filipino control of public utilities. This is
evident from the following exchange:
THE PRESIDENT. Commissioner Jamir is recognized.
MR. JAMIR. Madam President, my proposed amendment on
lines 20 and 21 is to delete the phrase "two thirds of whose
voting stock or controlling interest," and instead substitute the
words "SIXTY PERCENT OF WHOSE CAPITAL" so that
the sentence will read: "No franchise, certificate, or any other
form of authorization for the operation of a public utility shall
be granted except to citizens of the Philippines or to
corporations or associations organized under the laws of the
Philippines at least SIXTY PERCENT OF WHOSE
CAPITAL is owned by such citizens."
xxxx
THE PRESIDENT: Will Commissioner Jamir first explain?
MR. JAMIR. Yes, in this Article on National Economy and
Patrimony, there were two previous sections in which we
fixed the Filipino equity to 60 percent as against 40 percent for
foreigners. It is only in this Section 15 with respect to public
utilities that the committee proposal was increased to two-
thirds. I think it would be better to harmonize this provision by
providing that even in the case of public utilities, the minimum
equity for Filipino citizens should be 60 percent.
MR. ROMULO. Madam President.
THE PRESIDENT. Commissioner Romulo is recognized.
MR. ROMULO. My reason for supporting the amendment is
based on the discussions I have had with representatives of the
Filipino majority owners of the international record carriers,
and the subsequent memoranda they submitted to me. x x x
Their second point is that under the Corporation Code, the
management and control of a corporation is vested in the
board of directors, not in the officers but in the board of
directors. The officers are only agents of the board. And they
believe that with 60 percent of the equity, the Filipino majority
stockholders undeniably control the board. Only on important
corporate acts can the 40-percent foreign equity exercise a
veto, x x x.
x x x x45
MS. ROSARIO BRAID. Madam President.
THE PRESIDENT. Commissioner Rosario Braid is
recognized.
MS. ROSARIO BRAID. Yes, in the interest of equal time,
may I also read from a memorandum by the spokesman of the
Philippine Chamber of Communications on why they would
like to maintain the present equity, I am referring to the 66
2/3. They would prefer to have a 75-25 ratio but would settle
for 66 2/3. x x x
xxxx
THE PRESIDENT. Just to clarify, would Commissioner
Rosario Braid support the proposal of two-thirds rather than
the 60 percent?
MS. ROSARIO BRAID. I have added a clause that will put
management in the hands of Filipino citizens.
x x x x46
While they had differing views on the percentage of Filipino
ownership of capital, it is clear that the framers of the
Constitution intended public utilities to be majority Filipino-
owned and controlled. To ensure that Filipinos control public
utilities, the framers of the Constitution approved, as
additional safeguard, the inclusion of the last sentence of
Section 11, Article XII of the Constitution commanding that
"[t]he participation of foreign investors in the governing body
of any public utility enterprise shall be limited to their
proportionate share in its capital, and all the executive and
managing officers of such corporation or association must be
citizens of the Philippines." In other words, the last sentence
of Section 11, Article XII of the Constitution mandates that (1)
the participation of foreign investors in the governing body of
the corporation or association shall be limited to their
proportionate share in the capital of such entity; and (2) all
officers of the corporation or association must be Filipino
citizens.
Commissioner Rosario Braid proposed the inclusion of the
phrase requiring the managing officers of the corporation or
association to be Filipino citizens specifically to prevent
management contracts, which were designed primarily to
circumvent the Filipinization of public utilities, and to assure
Filipino control of public utilities, thus:
MS. ROSARIO BRAID. x x x They also like to suggest that
we amend this provision by adding a phrase which states:
"THE MANAGEMENT BODY OF EVERY
CORPORATION OR ASSOCIATION SHALL IN ALL
CASES BE CONTROLLED BY CITIZENS OF THE
PHILIPPINES." I have with me their position paper.
THE PRESIDENT. The Commissioner may proceed.
MS. ROSARIO BRAID. The three major international record
carriers in the Philippines, which Commissioner Romulo
mentioned – Philippine Global Communications, Eastern
Telecommunications, Globe Mackay Cable – are 40-percent
owned by foreign multinational companies and 60-percent
owned by their respective Filipino partners. All three,
however, also have management contracts with these foreign
companies – Philcom with RCA, ETPI with Cable and
Wireless PLC, and GMCR with ITT. Up to the present time,
the general managers of these carriers are foreigners. While
the foreigners in these common carriers are only minority
owners, the foreign multinationals are the ones managing and
controlling their operations by virtue of their management
contracts and by virtue of their strength in the governing
bodies of these carriers.47
xxxx
MR. OPLE. I think a number of us have agreed to ask
Commissioner Rosario Braid to propose an amendment with
respect to the operating management of public utilities, and in
this amendment, we are associated with Fr. Bernas,
Commissioners Nieva and Rodrigo. Commissioner Rosario
Braid will state this amendment now.
Thank you.
MS. ROSARIO BRAID. Madam President.
THE PRESIDENT. This is still on Section 15.
MS. ROSARIO BRAID. Yes.
MR. VILLEGAS. Yes, Madam President.
xxxx
MS. ROSARIO BRAID. Madam President, I propose a new
section to read: ‘THE MANAGEMENT BODY OF EVERY
CORPORATION OR ASSOCIATION SHALL IN ALL
CASES BE CONTROLLED BY CITIZENS OF THE
PHILIPPINES."
This will prevent management contracts and assure control by
Filipino citizens. Will the committee assure us that this
amendment will insure that past activities such as management
contracts will no longer be possible under this amendment?
xxxx
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. Will the committee accept a reformulation of
the first part?
MR. BENGZON. Let us hear it.
FR. BERNAS. The reformulation will be essentially the
formula of the 1973 Constitution which reads: "THE
PARTICIPATION OF FOREIGN INVESTORS IN THE
GOVERNING BODY OF ANY PUBLIC UTILITY
ENTERPRISE SHALL BE LIMITED TO THEIR
PROPORTIONATE SHARE IN THE CAPITAL THEREOF
AND..."
MR. VILLEGAS. "ALL THE EXECUTIVE AND
MANAGING OFFICERS OF SUCH CORPORATIONS
AND ASSOCIATIONS MUST BE CITIZENS OF THE
PHILIPPINES."
MR. BENGZON. Will Commissioner Bernas read the whole
thing again?
FR. BERNAS. "THE PARTICIPATION OF FOREIGN
INVESTORS IN THE GOVERNING BODY OF ANY
PUBLIC UTILITY ENTERPRISE SHALL BE LIMITED TO
THEIR PROPORTIONATE SHARE IN THE CAPITAL
THEREOF..." I do not have the rest of the copy.
MR. BENGZON. "AND ALL THE EXECUTIVE AND
MANAGING OFFICERS OF SUCH CORPORATIONS OR
ASSOCIATIONS MUST BE CITIZENS OF THE
PHILIPPINES." Is that correct?
MR. VILLEGAS. Yes.
MR. BENGZON. Madam President, I think that was said in a
more elegant language. We accept the amendment. Is that all
right with Commissioner Rosario Braid?
MS. ROSARIO BRAID. Yes.
xxxx
MR. DE LOS REYES. The governing body refers to the board
of directors and trustees.
MR. VILLEGAS. That is right.
MR. BENGZON. Yes, the governing body refers to the board
of directors.
MR. REGALADO. It is accepted.
MR. RAMA. The body is now ready to vote, Madam
President.
VOTING
xxxx
The results show 29 votes in favor and none against; so the
proposed amendment is approved.
xxxx
THE PRESIDENT. All right. Can we proceed now to vote on
Section 15?
MR. RAMA. Yes, Madam President.
THE PRESIDENT. Will the chairman of the committee please
read Section 15?
MR. VILLEGAS. The entire Section 15, as amended, reads:
"No franchise, certificate, or any other form of authorization
for the operation of a public utility shall be granted except to
citizens of the Philippines or to corporations or associations
organized under the laws of the Philippines at least 60
PERCENT OF WHOSE CAPITAL is owned by such
citizens." May I request Commissioner Bengzon to please
continue reading.
MR. BENGZON. "THE PARTICIPATION OF FOREIGN
INVESTORS IN THE GOVERNING BODY OF ANY
PUBLIC UTILITY ENTERPRISE SHALL BE LIMITED TO
THEIR PROPORTIONATE SHARE IN THE CAPITAL
THEREOF AND ALL THE EXECUTIVE AND
MANAGING OFFICERS OF SUCH CORPORATIONS OR
ASSOCIATIONS MUST BE CITIZENS OF THE
PHILIPPINES."
MR. VILLEGAS. "NOR SHALL SUCH FRANCHISE,
CERTIFICATE OR AUTHORIZATION BE EXCLUSIVE IN
CHARACTER OR FOR A PERIOD LONGER THAN
TWENTY-FIVE YEARS RENEWABLE FOR NOT MORE
THAN TWENTY-FIVE YEARS. Neither shall any such
franchise or right be granted except under the condition that it
shall be subject to amendment, alteration, or repeal by
Congress when the common good so requires. The State shall
encourage equity participation in public utilities by the general
public."
VOTING
xxxx
The results show 29 votes in favor and 4 against; Section 15,
as amended, is approved.48 (Emphasis supplied)
The last sentence of Section 11, Article XII of the 1987
Constitution, particularly the provision on the limited
participation of foreign investors in the governing body of
public utilities, is a reiteration of the last sentence of Section 5,
Article XIV of the 1973 Constitution,49 signifying its
importance in reserving ownership and control of public
utilities to Filipino citizens.
VIII.
The undisputed facts
There is no dispute, and respondents do not claim the contrary,
that (1) foreigners own 64.27% of the common shares of
PLDT, which class of shares exercises the sole right to vote in
the election of directors, and thus foreigners control PLDT; (2)
Filipinos own only 35.73% of PLDT’s common shares,
constituting a minority of the voting stock, and thus Filipinos
do not control PLDT; (3) preferred shares, 99.44% owned by
Filipinos, have no voting rights; (4) preferred shares earn only
1/70 of the dividends that common shares earn;50 (5)
preferred shares have twice the par value of common shares;
and (6) preferred shares constitute 77.85% of the authorized
capital stock of PLDT and common shares only 22.15%.
Despite the foregoing facts, the Court did not decide, and in
fact refrained from ruling on the question of whether PLDT
violated the 60-40 ownership requirement in favor of Filipino
citizens in Section 11, Article XII of the 1987 Constitution.
Such question indisputably calls for a presentation and
determination of evidence through a hearing, which is
generally outside the province of the Court’s jurisdiction, but
well within the SEC’s statutory powers. Thus, for obvious
reasons, the Court limited its decision on the purely legal and
threshold issue on the definition of the term "capital" in
Section 11, Article XII of the Constitution and directed the
SEC to apply such definition in determining the exact
percentage of foreign ownership in PLDT.
IX.
PLDT is not an indispensable party;
SEC is impleaded in this case.
In his petition, Gamboa prays, among others:
xxxx
5. For the Honorable Court to issue a declaratory relief that
ownership of common or voting shares is the sole basis in
determining foreign equity in a public utility and that any
other government rulings, opinions, and regulations
inconsistent with this declaratory relief be declared
unconstitutional and a violation of the intent and spirit of the
1987 Constitution;
6. For the Honorable Court to declare null and void all sales of
common stocks to foreigners in excess of 40 percent of the
total subscribed common shareholdings; and
7. For the Honorable Court to direct the Securities and
Exchange Commission and Philippine Stock Exchange to
require PLDT to make a public disclosure of all of its foreign
shareholdings and their actual and real beneficial owners.
Other relief(s) just and equitable are likewise prayed for.
(Emphasis supplied)
As can be gleaned from his prayer, Gamboa clearly asks this
Court to compel the SEC to perform its statutory duty to
investigate whether "the required percentage of ownership of
the capital stock to be owned by citizens of the Philippines has
been complied with [by PLDT] as required by x x x the
Constitution."51 Such plea clearly negates SEC’s argument
that it was not impleaded.
Granting that only the SEC Chairman was impleaded in this
case, the Court has ample powers to order the SEC’s
compliance with its directive contained in the 28 June 2011
Decision in view of the far-reaching implications of this case.
In Domingo v. Scheer,52 the Court dispensed with the
amendment of the pleadings to implead the Bureau of
Customs considering (1) the unique backdrop of the case; (2)
the utmost need to avoid further delays; and (3) the issue of
public interest involved. The Court held:
The Court may be curing the defect in this case by adding the
BOC as party-petitioner. The petition should not be dismissed
because the second action would only be a repetition of the
first. In Salvador, et al., v. Court of Appeals, et al., we held
that this Court has full powers, apart from that power and
authority which is inherent, to amend the processes, pleadings,
proceedings and decisions by substituting as party-plaintiff the
real party-in-interest. The Court has the power to avoid delay
in the disposition of this case, to order its amendment as to
implead the BOC as party-respondent. Indeed, it may no
longer be necessary to do so taking into account the unique
backdrop in this case, involving as it does an issue of public
interest. After all, the Office of the Solicitor General has
represented the petitioner in the instant proceedings, as well as
in the appellate court, and maintained the validity of the
deportation order and of the BOC’s Omnibus Resolution. It
cannot, thus, be claimed by the State that the BOC was not
afforded its day in court, simply because only the petitioner,
the Chairperson of the BOC, was the respondent in the CA,
and the petitioner in the instant recourse. In Alonso v.
Villamor, we had the occasion to state:
There is nothing sacred about processes or pleadings, their
forms or contents. Their sole purpose is to facilitate the
application of justice to the rival claims of contending
parties. They were created, not to hinder and delay, but to
facilitate and promote, the administration of justice. They do
not constitute the thing itself, which courts are always striving
to secure to litigants. They are designed as the means best
adapted to obtain that thing. In other words, they are a means
to an end. When they lose the character of the one and become
the other, the administration of justice is at fault and courts are
correspondingly remiss in the performance of their obvious
duty.53 (Emphasis supplied)
In any event, the SEC has expressly manifested54 that it will
abide by the Court’s decision and defer to the Court’s
definition of the term "capital" in Section 11, Article XII of
the Constitution. Further, the SEC entered its special
appearance in this case and argued during the Oral Arguments,
indicating its submission to the Court’s jurisdiction. It is clear,
therefore, that there exists no legal impediment against the
proper and immediate implementation of the Court’s directive
to the SEC.
PLDT is an indispensable party only insofar as the other
issues, particularly the factual questions, are concerned. In
other words, PLDT must be impleaded in order to fully
resolve the issues on (1) whether the sale of 111,415 PTIC
shares to First Pacific violates the constitutional limit on
foreign ownership of PLDT; (2) whether the sale of common
shares to foreigners exceeded the 40 percent limit on foreign
equity in PLDT; and (3) whether the total percentage of the
PLDT common shares with voting rights complies with the
60-40 ownership requirement in favor of Filipino citizens
under the Constitution for the ownership and operation of
PLDT. These issues indisputably call for an examination of
the parties’ respective evidence, and thus are clearly within the
jurisdiction of the SEC. In short, PLDT must be impleaded,
and must necessarily be heard, in the proceedings before the
SEC where the factual issues will be thoroughly threshed out
and resolved.
Notably, the foregoing issues were left untouched by the
Court. The Court did not rule on the factual issues raised by
Gamboa, except the single and purely legal issue on the
definition of the term "capital" in Section 11, Article XII of
the Constitution. The Court confined the resolution of the
instant case to this threshold legal issue in deference to the
fact-finding power of the SEC.
Needless to state, the Court can validly, properly, and fully
dispose of the fundamental legal issue in this case even
without the participation of PLDT since defining the term
"capital" in Section 11, Article XII of the Constitution does
not, in any way, depend on whether PLDT was impleaded.
Simply put, PLDT is not indispensable for a complete
resolution of the purely legal question in this case.55 In fact,
the Court, by treating the petition as one for
mandamus,56 merely directed the SEC to apply the Court’s
definition of the term "capital" in Section 11, Article XII of
the Constitution in determining whether PLDT committed any
violation of the said constitutional provision. The dispositive
portion of the Court’s ruling is addressed not to PLDT but
solely to the SEC, which is the administrative agency tasked to
enforce the 60-40 ownership requirement in favor of Filipino
citizens in Section 11, Article XII of the Constitution.
Since the Court limited its resolution on the purely legal issue
on the definition of the term "capital" in Section 11, Article
XII of the 1987 Constitution, and directed the SEC to
investigate any violation by PLDT of the 60-40 ownership
requirement in favor of Filipino citizens under the
Constitution,57 there is no deprivation of PLDT’s property or
denial of PLDT’s right to due process, contrary to Pangilinan
and Nazareno’s misimpression. Due process will be afforded
to PLDT when it presents proof to the SEC that it complies, as
it claims here, with Section 11, Article XII of the Constitution.
X.
Foreign Investments in the Philippines
Movants fear that the 28 June 2011 Decision would spell
disaster to our economy, as it may result in a sudden flight of
existing foreign investors to "friendlier" countries and
simultaneously deterring new foreign investors to our country.
In particular, the PSE claims that the 28 June 2011 Decision
may result in the following: (1) loss of more than ₱ 630 billion
in foreign investments in PSE-listed shares; (2) massive
decrease in foreign trading transactions; (3) lower PSE
Composite Index; and (4) local investors not investing in PSE-
listed shares.58
Dr. Bernardo M. Villegas, one of the amici curiae in the Oral
Arguments, shared movants’ apprehension. Without providing
specific details, he pointed out the depressing state of the
Philippine economy compared to our neighboring countries
which boast of growing economies. Further, Dr. Villegas
explained that the solution to our economic woes is for the
government to "take-over" strategic industries, such as the
public utilities sector, thus:
JUSTICE CARPIO:
I would like also to get from you Dr. Villegas if you have
additional information on whether this high FDI59 countries
in East Asia have allowed foreigners x x x control [of] their
public utilities, so that we can compare apples with apples.
DR. VILLEGAS:
Correct, but let me just make a comment. When these
neighbors of ours find an industry strategic, their solution is
not to "Filipinize" or "Vietnamize" or "Singaporize." Their
solution is to make sure that those industries are in the hands
of state enterprises. So, in these countries, nationalization
means the government takes over. And because their
governments are competent and honest enough to the public,
that is the solution. x x x 60 (Emphasis supplied)
If government ownership of public utilities is the solution,
then foreign investments in our public utilities serve no
purpose. Obviously, there can never be foreign investments in
public utilities if, as Dr. Villegas claims, the "solution is to
make sure that those industries are in the hands of state
enterprises." Dr. Villegas’s argument that foreign investments
in telecommunication companies like PLDT are badly needed
to save our ailing economy contradicts his own theory that the
solution is for government to take over these companies. Dr.
Villegas is barking up the wrong tree since State ownership of
public utilities and foreign investments in such industries are
diametrically opposed concepts, which cannot possibly be
reconciled.
In any event, the experience of our neighboring countries
cannot be used as argument to decide the present case
differently for two reasons. First, the governments of our
neighboring countries have, as claimed by Dr. Villegas, taken
over ownership and control of their strategic public utilities
like the telecommunications industry. Second, our
Constitution has specific provisions limiting foreign
ownership in public utilities which the Court is sworn to
uphold regardless of the experience of our neighboring
countries.
In our jurisdiction, the Constitution expressly reserves the
ownership and operation of public utilities to Filipino citizens,
or corporations or associations at least 60 percent of whose
capital belongs to Filipinos. Following Dr. Villegas’s claim,
the Philippines appears to be more liberal in allowing foreign
investors to own 40 percent of public utilities, unlike in other
Asian countries whose governments own and operate such
industries.
XI.
Prospective Application of Sanctions
In its Motion for Partial Reconsideration, the SEC sought to
clarify the reckoning period of the application and imposition
of appropriate sanctions against PLDT if found violating
Section 11, Article XII of the Constitution.1avvphi1
As discussed, the Court has directed the SEC to investigate
and determine whether PLDT violated Section 11, Article XII
of the Constitution. Thus, there is no dispute that it is only
after the SEC has determined PLDT’s violation, if any exists
at the time of the commencement of the administrative case or
investigation, that the SEC may impose the statutory sanctions
against PLDT. In other words, once the 28 June 2011 Decision
becomes final, the SEC shall impose the appropriate sanctions
only if it finds after due hearing that, at the start of the
administrative case or investigation, there is an existing
violation of Section 11, Article XII of the Constitution. Under
prevailing jurisprudence, public utilities that fail to comply
with the nationality requirement under Section 11, Article XII
and the FIA can cure their deficiencies prior to the start of the
administrative case or investigation.61
XII.
Final Word
The Constitution expressly declares as State policy the
development of an economy "effectively controlled" by
Filipinos. Consistent with such State policy, the Constitution
explicitly reserves the ownership and operation of public
utilities to Philippine nationals, who are defined in the Foreign
Investments Act of 1991 as Filipino citizens, or corporations
or associations at least 60 percent of whose capital with voting
rights belongs to Filipinos. The FIA’s implementing rules
explain that "[f]or stocks to be deemed owned and held by
Philippine citizens or Philippine nationals, mere legal title is
not enough to meet the required Filipino equity. Full
beneficial ownership of the stocks, coupled with appropriate
voting rights is essential." In effect, the FIA clarifies, reiterates
and confirms the interpretation that the term "capital" in
Section 11, Article XII of the 1987 Constitution refers
to shares with voting rights, as well as with full beneficial
ownership. This is precisely because the right to vote in the
election of directors, coupled with full beneficial ownership of
stocks, translates to effective control of a corporation.
Any other construction of the term "capital" in Section 11,
Article XII of the Constitution contravenes the letter and intent
of the Constitution. Any other meaning of the term "capital"
openly invites alien domination of economic activities
reserved exclusively to Philippine nationals. Therefore,
respondents’ interpretation will ultimately result in handing
over effective control of our national economy to foreigners in
patent violation of the Constitution, making Filipinos second-
class citizens in their own country.
Filipinos have only to remind themselves of how this country
was exploited under the Parity Amendment, which gave
Americans the same rights as Filipinos in the exploitation of
natural resources, and in the ownership and control of public
utilities, in the Philippines. To do this the 1935 Constitution,
which contained the same 60 percent Filipino ownership and
control requirement as the present 1987 Constitution, had to
be amended to give Americans parity rights with Filipinos.
There was bitter opposition to the Parity Amendment62 and
many Filipinos eagerly awaited its expiration. In late 1968,
PLDT was one of the American-controlled public utilities that
became Filipino-controlled when the controlling American
stockholders divested in anticipation of the expiration of the
Parity Amendment on 3 July 1974.63 No economic suicide
happened when control of public utilities and mining
corporations passed to Filipinos’ hands upon expiration of the
Parity Amendment.

Movants’ interpretation of the term "capital" would bring us

back to the same evils spawned by the Parity
Amendment, effectively giving foreigners parity rights with
Filipinos, but this time even without any amendment to the
present Constitution. Worse, movants’ interpretation opens up
our national economy to effective control not only by
Americans but also by all foreigners, be they Indonesians,
Malaysians or Chinese, even in the absence of reciprocal
treaty arrangements. At least the Parity Amendment, as
implemented by the Laurel-Langley Agreement, gave the
capital-starved Filipinos theoretical parity – the same rights as
Americans to exploit natural resources, and to own and control
public utilities, in the United States of America. Here,
movants’ interpretation would effectively mean
a unilateral opening up of our national economy to all
foreigners, without any reciprocal arrangements. That would
mean that Indonesians, Malaysians and Chinese nationals
could effectively control our mining companies and public
utilities while Filipinos, even if they have the capital, could
not control similar corporations in these countries.

The 1935, 1973 and 1987 Constitutions have the same 60

percent Filipino ownership and control requirement for public
utilities like PLOT. Any deviation from this requirement
necessitates an amendment to the Constitution as exemplified
by the Parity Amendment. This Court has no power to amend
the Constitution for its power and duty is only to faithfully
apply and interpret the Constitution.

WHEREFORE, we DENY the motions for

reconsideration WITH FINALITY. No further pleadings shall
be entertained.

SO ORDERED.
G.R. No. 160261 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner, et al,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED
BY SPEAKER JOSE G. DE VENECIA, et al, respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no
matter how passionate and seemingly irreconcilable it may
appear to be, over the determination by the independent
branches of government of the nature, scope and extent of
their respective constitutional powers where the Constitution
itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the
often frictional, at times turbulent, dynamics of the
relationship among these co-equal branches. This Court is
confronted with one such today involving the legislature and
the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent
cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization
that the present controversy subject of the instant petitions –
whether the filing of the second impeachment complaint
against Chief Justice Hilario G. Davide, Jr. with the House of
Representatives falls within the one year bar provided in the
Constitution, and whether the resolution thereof is a political
question – has resulted in a political crisis. Perhaps even more
truth to the view that it was brought upon by a political crisis
of conscience.
In any event, it is with the absolute certainty that our
Constitution is sufficient to address all the issues which this
controversy spawns that this Court unequivocally pronounces,
at the first instance, that the feared resort to extra-
constitutional methods of resolving it is neither necessary nor
legally permissible. Both its resolution and protection of the
public interest lie in adherence to, not departure from, the
Constitution.
In passing over the complex issues arising from the
controversy, this Court is ever mindful of the essential truth
that the inviolate doctrine of separation of powers among the
legislative, executive or judicial branches of government by no
means prescribes for absolute autonomy in the discharge by
each of that part of the governmental power assigned to it by
the sovereign people.
At the same time, the corollary doctrine of checks and
balances which has been carefully calibrated by the
Constitution to temper the official acts of each of these three
branches must be given effect without destroying their
indispensable co-equality.
Taken together, these two fundamental doctrines of republican
government, intended as they are to insure that governmental
power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these
branches where the delicate functions of enacting, interpreting
and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and
well-being of the people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest
lives.
SECTION 2. The President, the Vice-President, the Members
of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from
office as provided by law, but not by impeachment.
SECTION 3. (1) The House of Representatives shall have
the exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within
three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such
referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the Committee,
or override its contrary resolution. The vote of each Member
shall be recorded.
(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the Members
of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President
of the Philippines is on trial, the Chief Justice of the Supreme
Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all the
Members of the Senate.
(7) Judgment in cases of impeachment shall not extend further
than removal from office and disqualification to hold any
office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to
prosecution, trial, and punishment according to law.
(8) The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section. (Emphasis
and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the
Constitution, the 12th Congress of the House of
Representatives adopted and approved the Rules of Procedure
in Impeachment Proceedings (House Impeachment Rules) on
November 28, 2001, superseding the previous House
Impeachment Rules1 approved by the 11th Congress.
The relevant distinctions between these two Congresses'
House Impeachment Rules are shown in the following
tabulation:
On July 22, 2002, the House of Representatives adopted a
Resolution,2 sponsored by Representative Felix William D.
Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner
of disbursements and expenditures by the Chief Justice of the
Supreme Court of the Judiciary Development Fund (JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an
impeachment complaint4 (first impeachment complaint)
against Chief Justice Hilario G. Davide Jr. and seven
Associate Justices5 of this Court for "culpable violation of the
Constitution, betrayal of the public trust and other high
crimes."6 The complaint was endorsed by Representatives
Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang
Dilangalen,7 and was referred to the House Committee on
Justice on August 5, 20038 in accordance with Section 3(2) of
Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be
filed by any Member of the House of Representatives or by
any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper Committee
within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall
submit its report to the House within sixty session days from
such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003
that the first impeachment complaint was "sufficient in
form,"9 but voted to dismiss the same on October 22, 2003 for
being insufficient in substance.10 To date, the Committee
Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI
of the Constitution.
Four months and three weeks since the filing on June 2, 2003
of the first complaint or on October 23, 2003, a day after the
House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary
General of the House12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B.
Fuentebella (Third District, Camarines Sur) against Chief
Justice Hilario G. Davide, Jr., founded on the alleged results
of the legislative inquiry initiated by above-mentioned House
Resolution. This second impeachment complaint was
accompanied by a "Resolution of Endorsement/Impeachment"
signed by at least one-third (1/3) of all the Members of the
House of Representatives.13
Thus arose the instant petitions against the House of
Representatives, et. al., most of which petitions contend that
the filing of the second impeachment complaint is
unconstitutional as it violates the provision of Section 5 of
Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more
than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr.,
alleging that he has a duty as a member of the Integrated Bar
of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his
petition for Certiorari, Prohibition and Mandamus are of
transcendental importance, and that he "himself was a victim
of the capricious and arbitrary changes in the Rules of
Procedure in Impeachment Proceedings introduced by the 12th
Congress,"14 posits that his right to bring an impeachment
complaint against then Ombudsman Aniano Desierto had been
violated due to the capricious and arbitrary changes in the
House Impeachment Rules adopted and approved on
November 28, 2001 by the House of Representatives and
prays that (1) Rule V, Sections 16 and 17 and Rule III,
Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional;
(2) this Court issue a writ of mandamus directing respondents
House of Representatives et. al. to comply with Article IX,
Section 3 (2), (3) and (5) of the Constitution, to return the
second impeachment complaint and/or strike it off the records
of the House of Representatives, and to promulgate rules
which are consistent with the Constitution; and (3) this Court
permanently enjoin respondent House of Representatives from
proceeding with the second impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et.
al., as citizens and taxpayers, alleging that the issues of the
case are of transcendental importance, pray, in their petition
for Certiorari/Prohibition, the issuance of a writ "perpetually"
prohibiting respondent House of Representatives from filing
any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting
respondents Senate and Senate President Franklin Drilon from
accepting any Articles of Impeachment against the Chief
Justice or, in the event that the Senate has accepted the same,
from proceeding with the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and
Soledad Cagampang, as citizens, taxpayers, lawyers and
members of the Integrated Bar of the Philippines, alleging that
their petition for Prohibition involves public interest as it
involves the use of public funds necessary to conduct the
impeachment trial on the second impeachment complaint, pray
for the issuance of a writ of prohibition enjoining Congress
from conducting further proceedings on said second
impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging
that this Court has recognized that he has locus standi to bring
petitions of this nature in the cases of Chavez v.
PCGG15 and Chavez v. PEA-Amari Coastal Bay
Development Corporation,16 prays in his petition for
Injunction that the second impeachment complaint be declared
unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et.
al., as taxpayers and members of the legal profession, pray in
their petition for Prohibition for an order prohibiting
respondent House of Representatives from drafting, adopting,
approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and
Nazareno from transmitting the Articles of Impeachment to
the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F.
Baterina and Deputy Speaker Raul M. Gonzalez, alleging that,
as members of the House of Representatives, they have a legal
interest in ensuring that only constitutional impeachment
proceedings are initiated, pray in their petition for
Certiorari/Prohibition that the second impeachment complaint
and any act proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et
al., claiming that they have a right to be protected against all
forms of senseless spending of taxpayers' money and that they
have an obligation to protect the Supreme Court, the Chief
Justice, and the integrity of the Judiciary, allege in their
petition for Certiorari and Prohibition that it is instituted as "a
class suit" and pray that (1) the House Resolution endorsing
the second impeachment complaint as well as all issuances
emanating therefrom be declared null and void; and (2) this
Court enjoin the Senate and the Senate President from taking
cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition
commanding the Senate, its prosecutors and agents to desist
from conducting any proceedings or to act on the
impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc.,
whose members are citizens and taxpayers, and its co-
petitioner Crispin T. Reyes, a citizen, taxpayer and a member
of the Philippine Bar, both allege in their petition, which does
not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest
and pray that Sections 16 and 17 of the House Impeachment
Rules and the second impeachment complaint/Articles of
Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as
a citizen and a member of the Philippine Bar Association and
of the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for
the issuance of a Temporary Restraining Order and Permanent
Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the
Philippines, alleging that it is mandated by the Code of
Professional Responsibility to uphold the Constitution, prays
in its petition for Certiorari and Prohibition that Sections 16
and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the
House Impeachment Rules be declared unconstitutional and
that the House of Representatives be permanently enjoined
from proceeding with the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores
prays in his petition for Certiorari and Prohibition that the
House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu
Foundation Inc., et. al., in their petition for Prohibition and
Injunction which they claim is a class suit filed in behalf of all
citizens, citing Oposa v. Factoran17 which was filed in behalf
of succeeding generations of Filipinos, pray for the issuance of
a writ prohibiting respondents House of Representatives and
the Senate from conducting further proceedings on the second
impeachment complaint and that this Court declare as
unconstitutional the second impeachment complaint and the
acts of respondent House of Representatives in interfering
with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio
Callangan Aquino, alleging that the issues in his petition for
Prohibition are of national and transcendental significance and
that as an official of the Philippine Judicial Academy, he has a
direct and substantial interest in the unhampered operation of
the Supreme Court and its officials in discharging their duties
in accordance with the Constitution, prays for the issuance of a
writ prohibiting the House of Representatives from
transmitting the Articles of Impeachment to the Senate and the
Senate from receiving the same or giving the impeachment
complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a
taxpayer, alleges in his petition for Prohibition that
respondents Fuentebella and Teodoro at the time they filed the
second impeachment complaint, were "absolutely without any
legal power to do so, as they acted without jurisdiction as far
as the Articles of Impeachment assail the alleged abuse of
powers of the Chief Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores
and Hector L. Hofileña, alleging that as professors of law they
have an abiding interest in the subject matter of their petition
for Certiorari and Prohibition as it pertains to a constitutional
issue "which they are trying to inculcate in the minds of their
students," pray that the House of Representatives be enjoined
from endorsing and the Senate from trying the Articles of
Impeachment and that the second impeachment complaint be
declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr.,
without alleging his locus standi, but alleging that the second
impeachment complaint is founded on the issue of whether or
not the Judicial Development Fund (JDF) was spent in
accordance with law and that the House of Representatives
does not have exclusive jurisdiction in the examination and
audit thereof, prays in his petition "To Declare Complaint Null
and Void for Lack of Cause of Action and Jurisdiction" that
the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association,
alleging that the issues raised in the filing of the second
impeachment complaint involve matters of transcendental
importance, prays in its petition for Certiorari/Prohibition that
(1) the second impeachment complaint and all proceedings
arising therefrom be declared null and void; (2) respondent
House of Representatives be prohibited from transmitting the
Articles of Impeachment to the Senate; and (3) respondent
Senate be prohibited from accepting the Articles of
Impeachment and from conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et.
al., as citizens and taxpayers, pray in their petition for
Certiorari/Prohibition that (1) the second impeachment
complaint as well as the resolution of endorsement and
impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate
President Franklin Drilon be prohibited from accepting any
Articles of Impeachment against the Chief Justice or, in the
event that they have accepted the same, that they be prohibited
from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262
and 160263, the first three of the eighteen which were filed
before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent the
House of Representatives from transmitting the Articles of
Impeachment arising from the second impeachment complaint
to the Senate. Petition bearing docket number G.R. No.
160261 likewise prayed for the declaration of the November
28, 2001 House Impeachment Rules as null and void for being
unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292
and 160295, which were filed on October 28, 2003, sought
similar relief. In addition, petition bearing docket number G.R.
No. 160292 alleged that House Resolution No. 260 (calling for
a legislative inquiry into the administration by the Chief
Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the
constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House
of Representatives, a motion was put forth that the second
impeachment complaint be formally transmitted to the Senate,
but it was not carried because the House of Representatives
adjourned for lack of quorum,19 and as reflected above, to
date, the Articles of Impeachment have yet to be forwarded to
the Senate.
Before acting on the petitions with prayers for temporary
restraining order and/or writ of preliminary injunction which
were filed on or before October 28, 2003, Justices Puno and
Vitug offered to recuse themselves, but the Court rejected
their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.
Without necessarily giving the petitions due course, this Court
in its Resolution of October 28, 2003, resolved to (a)
consolidate the petitions; (b) require respondent House of
Representatives and the Senate, as well as the Solicitor
General, to comment on the petitions not later than 4:30 p.m.
of November 3, 2003; (c) set the petitions for oral arguments
on November 5, 2003, at 10:00 a.m.; and (d) appointed
distinguished legal experts as amici curiae.20 In addition, this
Court called on petitioners and respondents to maintain the
status quo, enjoining all the parties and others acting for and in
their behalf to refrain from committing acts that would render
the petitions moot.
Also on October 28, 2003, when respondent House of
Representatives through Speaker Jose C. De Venecia, Jr.
and/or its co-respondents, by way of special appearance,
submitted a Manifestation asserting that this Court has no
jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal branch
of government under the Constitution, from the performance
of its constitutionally mandated duty to initiate impeachment
cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his
own behalf, filed a Motion to Intervene (Ex Abudante
Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over
the issues affecting the impeachment proceedings and that the
sole power, authority and jurisdiction of the Senate as the
impeachment court to try and decide impeachment cases,
including the one where the Chief Justice is the respondent, be
recognized and upheld pursuant to the provisions of Article XI
of the Constitution."22
Acting on the other petitions which were subsequently filed,
this Court resolved to (a) consolidate them with the earlier
consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and
(c) include them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through
Senate President Franklin M. Drilon, filed a Manifestation
stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of
the time of the filing of the petitions, no justiciable issue was
presented before it since (1) its constitutional duty to
constitute itself as an impeachment court commences only
upon its receipt of the Articles of Impeachment, which it had
not, and (2) the principal issues raised by the petitions pertain
exclusively to the proceedings in the House of
Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263,
160277, 160292, and 160295, questioning the status
quo Resolution issued by this Court on October 28, 2003 on
the ground that it would unnecessarily put Congress and this
Court in a "constitutional deadlock" and praying for the
dismissal of all the petitions as the matter in question is not yet
ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and
Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for
Leave of Court to Intervene and to Admit the Herein
Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol
ng mga Manggagawang Pilipino, Inc. filed a Motion for
Intervention in G.R. No. 160261. On November 5, 2003,
World War II Veterans Legionnaires of the Philippines, Inc.
also filed a "Petition-in-Intervention with Leave to Intervene"
in G.R. Nos. 160261, 160262, 160263, 160277, 160292,
160295, and 160310.
The motions for intervention were granted and both Senator
Pimentel's Comment and Attorneys Macalintal and Quadra's
Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of
the amici curiae and the arguments of petitioners, intervenors
Senator Pimentel and Attorney Makalintal, and Solicitor
General Alfredo Benipayo on the principal issues outlined in
an Advisory issued by this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may
be invoked; who can invoke it; on what issues and at what
time; and whether it should be exercised by this Court at this
time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of
impeachment;
e) Senate's "sole" power to try and decide all cases of
impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-
vis Section 3(5) of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and
substantive issues arising from the instant petitions as well as
the myriad arguments and opinions presented for and against
the grant of the reliefs prayed for, this Court has sifted and
determined them to be as follows: (1) the threshold and novel
issue of whether or not the power of judicial review extends to
those arising from impeachment proceedings; (2) whether or
not the essential pre-requisites for the exercise of the power of
judicial review have been fulfilled; and (3) the substantive
issues yet remaining. These matters shall now be discussed in
seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise
the power of judicial review to determine the validity of the
second impeachment complaint.
This Court's power of judicial review is conferred on the
judicial branch of the government in Section 1, Article VIII of
our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be established
by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively
expounded upon by Justice Jose P. Laurel in the definitive
1936 case of Angara v. Electoral Commission23 after the
effectivity of the 1935 Constitution whose provisions, unlike
the present Constitution, did not contain the present provision
in Article VIII, Section 1, par. 2 on what judicial power
includes. Thus, Justice Laurel discoursed:
x x x In times of social disquietude or political excitement, the
great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can
be called upon to determine the proper allocation of powers
between the several departments and among the integral or
constituent units thereof.
As any human production, our Constitution is of course
lacking perfection and perfectibility, but as much as it was
within the power of our people, acting through their delegates
to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican
government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had
not provided for a mechanism by which to direct the course of
government along constitutional channels,for then the
distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of
good government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are
real as they should be in any living constitution. In the United
States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the
courts, not to speak of its historical origin and development
there, has been set at rest by popular acquiescence for a period
of more than one and a half centuries. In our case, this
moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of
government. Who is to determine the nature, scope and extent
of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments; it
does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all
that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised after
full opportunity of argument by the parties, and limited further
to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this
manner, the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect
the wisdom and justice of the people as expressed through
their representatives in the executive and legislative
departments of the government.24 (Italics in the original;
emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to
"determine the proper allocation of powers" of the different
branches of government and "to direct the course of
government along constitutional channels" is inherent in all
courts25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual
controversies involving rights which are legally demandable
and enforceable."26
Thus, even in the United States where the power of judicial
review is not explicitly conferred upon the courts by its
Constitution, such power has "been set at rest by popular
acquiescence for a period of more than one and a half
centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review
was first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in
declaring what shall be the supreme law of the land, the
constitution itself is first mentioned; and not the laws of the
United States generally, but those only which shall be made in
pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the
United States confirms and strengthens the principle, supposed
to be essential to all written constitutions, that a law repugnant
to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.28(Italics in the
original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its
express grant in the 1935 Constitution, the power of judicial
review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted
political law professor and former Supreme Court Justice
Vicente V. Mendoza,30 the executive and legislative branches
of our government in fact effectively acknowledged this
power of judicial review in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations shall
be valid only when they are not contrary to the laws or the
Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial
review is indeed an integral component of the delicate system
of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our
republican form of government and insures that its vast
powers are utilized only for the benefit of the people for which
it serves.
The separation of powers is a fundamental principle in our
system of government. It obtains not through express
provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the
Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for
an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the
government. x x x And the judiciary in turn, with the Supreme
Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law,
and hence to declare executive and legislative acts void if
violative of the Constitution.32 (Emphasis and underscoring
supplied)
In the scholarly estimation of former Supreme Court Justice
Florentino Feliciano, "x x x judicial review is essential for the
maintenance and enforcement of the separation of powers and
the balancing of powers among the three great departments of
government through the definition and maintenance of the
boundaries of authority and control between them."33 To him,
"[j]udicial review is the chief, indeed the only, medium of
participation – or instrument of intervention – of the judiciary
in that balancing operation."34
To ensure the potency of the power of judicial review to curb
grave abuse of discretion by "any branch or instrumentalities
of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into
block letter law the so-called "expanded certiorari jurisdiction"
of this Court, the nature of and rationale for which are
mirrored in the following excerpt from the sponsorship speech
of its proponent, former Chief Justice Constitutional
Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former
Constitutions. It says:
The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read
it first and explain.
Judicial power includes the duty of courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part or instrumentality of the
government.
Fellow Members of this Commission, this is actually a product
of our experience during martial law. As a matter of fact, it
has some antecedents in the past, but the role of the judiciary
during the deposed regime was marred considerably by the
circumstance that in a number of cases against the
government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees,
and other matters related to the operation and effect of martial
law failed because the government set up the defense of
political question. And the Supreme Court said: "Well, since it
is political, we have no authority to pass upon it." The
Committee on the Judiciary feels that this was not a proper
solution of the questions involved. It did not merely request an
encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law
regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power
of the agencies and offices of the government as well as those
of its officers. In other words, the judiciary is the final arbiter
on the question whether or not a branch of government or any
of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which
means that the courts cannot hereafter evade the duty to settle
matters of this nature, by claiming that such matters constitute
a political question.35 (Italics in the original; emphasis and
underscoring supplied)
To determine the merits of the issues raised in the instant
petitions, this Court must necessarily turn to the Constitution
itself which employs the well-settled principles of
constitutional construction.
First, verba legis, that is, wherever possible, the words used in
the Constitution must be given their ordinary meaning except
where technical terms are employed. Thus, in J.M. Tuason &
Co., Inc. v. Land Tenure Administration,36 this Court,
speaking through Chief Justice Enrique Fernando, declared:
We look to the language of the document itself in our search
for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in which
case the significance thus attached to them prevails. As the
Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be
present in the people's consciousness, its language as much as
possible should be understood in the sense they have in
common use. What it says according to the text of the
provision to be construed compels acceptance and negates the
power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Thus these are the
cases where the need for construction is reduced to a
minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The
words of the Constitution should be interpreted in accordance
with the intent of its framers. And so did this Court apply this
principle in Civil Liberties Union v. Executive Secretary38 in
this wise:
A foolproof yardstick in constitutional construction is the
intention underlying the provision under consideration. Thus,
it has been held that the Court in construing a Constitution
should bear in mind the object sought to be accomplished by
its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light
of the history of the times, and the condition and
circumstances under which the Constitution was framed. The
object is to ascertain the reason which induced the framers of
the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to
construe the whole as to make the words consonant to that
reason and calculated to effect that purpose.39 (Emphasis and
underscoring supplied)
As it did in Nitafan v. Commissioner on Internal
Revenue40 where, speaking through Madame Justice
Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with
the fundamental principle of constitutional construction that
the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure
the realization of the purpose of the framers and of the people
in the adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution were
guided mainly by the explanation offered by the
framers.41 (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be
interpreted as a whole. Thus, in Chiongbian v. De Leon,42 this
Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could
not have dedicated a provision of our Constitution merely for
the benefit of one person without considering that it could also
affect others.When they adopted subsection 2, they permitted,
if not willed, that said provision should function to the full
extent of its substance and its terms, not by itself alone, but in
conjunction with all other provisions of that great
document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive
Secretary,44 this Court affirmed that:
It is a well-established rule in constitutional construction that
no one provision of the Constitution is to be separated from all
the others, to be considered alone, but that all the provisions
bearing upon a particular subject are to be brought into view
and to be so interpreted as to effectuate the great purposes of
the instrument. Sections bearing on a particular subject should
be considered and interpreted together as to effectuate the
whole purpose of the Constitution and one section is not to be
allowed to defeat another, if by any reasonable construction,
the two can be made to stand together.
In other words, the court must harmonize them, if practicable,
and must lean in favor of a construction which will render
every word operative, rather than one which may make the
words idle and nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be
clear, resort to other aids is available. In still the same case
of Civil Liberties Union v. Executive Secretary, this Court
expounded:
While it is permissible in this jurisdiction to consult
the debates and proceedings of the constitutional convention
in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the terms
of the Constitution when the meaning is clear. Debates in the
constitutional convention "are of value as showing the views
of the individual members, and as indicating the reasons for
their votes, but they give us no light as to the views of the
large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument
the force of fundamental law. We think it safer to construe the
constitution from what appears upon its face." The proper
interpretation therefore depends more on how it was
understood by the people adopting it than in the framers's
understanding thereof.46 (Emphasis and underscoring
supplied)
It is in the context of the foregoing backdrop of constitutional
refinement and jurisprudential application of the power of
judicial review that respondents Speaker De Venecia, et.
al. and intervenor Senator Pimentel raise the novel argument
that the Constitution has excluded impeachment proceedings
from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De
Venecia et. al. that impeachment is a political action which
cannot assume a judicial character. Hence, any question, issue
or incident arising at any stage of the impeachment proceeding
is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the
Senate's "sole power to try" impeachment cases48 (1) entirely
excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine
constitutional questions relative to impeachment
proceedings.49
In furthering their arguments on the proposition that
impeachment proceedings are outside the scope of judicial
review, respondents Speaker De Venecia, et. al. and intervenor
Senator Pimentel rely heavily on American authorities,
principally the majority opinion in the case of Nixon v. United
States.50 Thus, they contend that the exercise of judicial
review over impeachment proceedings is inappropriate since it
runs counter to the framers' decision to allocate to different
fora the powers to try impeachments and to try crimes; it
disturbs the system of checks and balances, under which
impeachment is the only legislative check on the judiciary;
and it would create a lack of finality and difficulty in
fashioning relief.51 Respondents likewise point to
deliberations on the US Constitution to show the intent to
isolate judicial power of review in cases of impeachment.
Respondents' and intervenors' reliance upon American
jurisprudence, the American Constitution and American
authorities cannot be credited to support the proposition that
the Senate's "sole power to try and decide impeachment
cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional
commitment of all issues pertaining to impeachment to the
legislature, to the total exclusion of the power of judicial
review to check and restrain any grave abuse of the
impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the
inherently judicial power to determine constitutional questions
incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the
American Constitution, are of dubious application for these
are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional
law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this
Court] should not be beguiled by foreign jurisprudence some
of which are hardly applicable because they have been
dictated by different constitutional settings and
needs."53 Indeed, although the Philippine Constitution can
trace its origins to that of the United States, their paths of
development have long since diverged. In the colorful words
of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the
Philippine Supreme Court and that of the U.S. Supreme Court
is that while the power of judicial review is
only impliedly granted to the U.S. Supreme Court and is
discretionary in nature, that granted to the Philippine Supreme
Court and lower courts, as expressly provided for in the
Constitution, is not just a power but also a duty, and it
was given an expanded definition to include the power to
correct any grave abuse of discretion on the part of any
government branch or instrumentality.
There are also glaring distinctions between the U.S.
Constitution and the Philippine Constitution with respect to
the power of the House of Representatives over impeachment
proceedings. While the U.S. Constitution bestows sole power
of impeachment to the House of Representatives without
limitation,54 our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment
cases,55 provides for several limitations to the exercise of
such power as embodied in Section 3(2), (3), (4) and (5),
Article XI thereof. These limitations include the manner of
filing, required vote to impeach, and the one year bar on the
impeachment of one and the same official.
Respondents are also of the view that judicial review of
impeachments undermines their finality and may also lead to
conflicts between Congress and the judiciary. Thus, they call
upon this Court to exercise judicial statesmanship on the
principle that "whenever possible, the Court should defer to
the judgment of the people expressed legislatively,
recognizing full well the perils of judicial willfulness and
pride."56
But did not the people also express their will when they
instituted the above-mentioned safeguards in the Constitution?
This shows that the Constitution did not intend to leave the
matter of impeachment to the sole discretion of Congress.
Instead, it provided for certain well-defined limits, or in the
language of Baker v. Carr,57"judicially discoverable
standards" for determining the validity of the exercise of such
discretion, through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v.
Quezon,59 cited by respondents in support of the argument
that the impeachment power is beyond the scope of judicial
review, are not in point. These cases concern the denial of
petitions for writs of mandamus to compel the legislature to
perform non-ministerial acts, and do not concern the exercise
of the power of judicial review.
There is indeed a plethora of cases in which this Court
exercised the power of judicial review over congressional
action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled
that it is well within the power and jurisdiction of the Court to
inquire whether the Senate or its officials committed a
violation of the Constitution or grave abuse of discretion in the
exercise of their functions and prerogatives. In Tanada v.
Angara,61 in seeking to nullify an act of the Philippine Senate
on the ground that it contravened the Constitution, it held that
the petition raises a justiciable controversy and that when an
action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in
fact the duty of the judiciary to settle the dispute. In Bondoc v.
Pineda,62 this Court declared null and void a resolution of the
House of Representatives withdrawing the nomination, and
rescinding the election, of a congressman as a member of the
House Electoral Tribunal for being violative of Section 17,
Article VI of the Constitution. In Coseteng v. Mitra,63 it held
that the resolution of whether the House representation in the
Commission on Appointments was based on proportional
representation of the political parties as provided in Section
18, Article VI of the Constitution is subject to judicial review.
In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the
Commission on Appointments is subject to judicial review.
In Tanada v. Cuenco,65 it held that although under the
Constitution, the legislative power is vested exclusively in
Congress, this does not detract from the power of the courts to
pass upon the constitutionality of acts of Congress. In Angara
v. Electoral Commission,66 it ruled that confirmation by the
National Assembly of the election of any member, irrespective
of whether his election is contested, is not essential before
such member-elect may discharge the duties and enjoy the
privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention
that the exercise of judicial review over impeachment
proceedings would upset the system of checks and balances.
Verily, the Constitution is to be interpreted as a whole and
"one section is not to be allowed to defeat another."67 Both
are integral components of the calibrated system of
independence and interdependence that insures that no branch
of government act beyond the powers assigned to it by the
Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the
courts' power of judicial review, like almost all powers
conferred by the Constitution, is subject to several limitations,
namely: (1) an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act
must have "standing" to challenge; he must have a personal
and substantial interest in the case such that he has sustained,
or will sustain, direct injury as a result of its enforcement; (3)
the question of constitutionality must be raised at the earliest
possible opportunity; and (4) the issue of constitutionality
must be the very lis mota of the case.
x x x Even then, this power of judicial review is limited to
actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this
manner, the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect
the wisdom and justice of the people as expressed through
their representatives in the executive and legislative
departments of the government.68 (Italics in the original)
Standing
Locus standi or legal standing or has been defined as a
personal and substantial interest in the case such that the party
has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the
question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues
upon which the court depends for illumination of difficult
constitutional questions.69
Intervenor Soriano, in praying for the dismissal of the
petitions, contends that petitioners do not have standing since
only the Chief Justice has sustained and will sustain direct
personal injury. Amicus curiae former Justice Minister and
Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that
petitioners have standing since this Court had, in the past,
accorded standing to taxpayers, voters, concerned citizens,
legislators in cases involving paramount public interest70 and
transcendental importance,71 and that procedural matters are
subordinate to the need to determine whether or not the other
branches of the government have kept themselves within the
limits of the Constitution and the laws and that they have not
abused the discretion given to them.72 Amicus curiae Dean
Raul Pangalangan of the U.P. College of Law is of the same
opinion, citing transcendental importance and the well-
entrenched rule exception that, when the real party in interest
is unable to vindicate his rights by seeking the same remedies,
as in the case of the Chief Justice who, for ethical reasons,
cannot himself invoke the jurisdiction of this Court, the courts
will grant petitioners standing.
There is, however, a difference between the rule on real-party-
in-interest and the rule on standing, for the former is a concept
of civil procedure73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding
standing, it behooves the Court to reiterate the ruling
in Kilosbayan, Inc. v. Morato75 to clarify what is meant by
locus standi and to distinguish it from real party-in-interest.
The difference between the rule on standing and real party in
interest has been noted by authorities thus: "It is important to
note . . . that standing because of its constitutional and public
policy underpinnings, is very different from questions relating
to whether a particular plaintiff is the real party in interest or
has capacity to sue. Although all three requirements are
directed towards ensuring that only certain parties can
maintain an action, standing restrictions require a partial
consideration of the merits, as well as broader policy concerns
relating to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in
some cases suits are brought not by parties who have been
personally injured by the operation of a law or by official
action taken, but by concerned citizens, taxpayers or voters
who actually sue in the public interest. Hence the question in
standing is whether such parties have "alleged such a personal
stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of
difficult constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is
whether he is "the party who would be benefited or injured by
the judgment, or the 'party entitled to the avails of the
suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been
injured by the alleged unconstitutional acts of the House of
Representatives, none of the petitioners before us asserts a
violation of the personal rights of the Chief Justice. On the
contrary, they invariably invoke the vindication of their own
rights – as taxpayers; members of Congress; citizens,
individually or in a class suit; and members of the bar and of
the legal profession – which were supposedly violated by the
alleged unconstitutional acts of the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers
and legislators when specific requirements have been met
have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing
the constitutionality of a statute must be direct and personal.
He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct injury as a result of
its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to
be subjected to some burdens or penalties by reason of the
statute or act complained of.77 In fine, when the proceeding
involves the assertion of a public right,78 the mere fact that he
is a citizen satisfies the requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a
claim that public funds are illegally disbursed, or that public
money is being deflected to any improper purpose, or that
there is a wastage of public funds through the enforcement of
an invalid or unconstitutional law.79 Before he can invoke the
power of judicial review, however, he must specifically prove
that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he would
sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has
merely a general interest common to all members of the
public.80
At all events, courts are vested with discretion as to whether or
not a taxpayer's suit should be entertained.81 This Court opts
to grant standing to most of the petitioners, given their
allegation that any impending transmittal to the Senate of the
Articles of Impeachment and the ensuing trial of the Chief
Justice will necessarily involve the expenditure of public
funds.
As for a legislator, he is allowed to sue to question the validity
of any official action which he claims infringes his
prerogatives as a legislator.82 Indeed, a member of the House
of Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution
in his office.83
While an association has legal personality to represent its
members,84 especially when it is composed of substantial
taxpayers and the outcome will affect their vital
interests,85 the mere invocation by the Integrated Bar of the
Philippines or any member of the legal profession of the duty
to preserve the rule of law and nothing more, although
undoubtedly true, does not suffice to clothe it with standing.
Its interest is too general. It is shared by other groups and the
whole citizenry. However, a reading of the petitions shows
that it has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and
weight as precedents.86 It, therefore, behooves this Court to
relax the rules on standing and to resolve the issues presented
by it.
In the same vein, when dealing with class suits filed in behalf
of all citizens, persons intervening must be sufficiently
numerous to fully protect the interests of all concerned87 to
enable the court to deal properly with all interests involved in
the suit,88 for a judgment in a class suit, whether favorable or
unfavorable to the class, is, under the res judicata principle,
binding on all members of the class whether or not they were
before the court.89 Where it clearly appears that not all
interests can be sufficiently represented as shown by the
divergent issues raised in the numerous petitions before this
Court, G.R. No. 160365 as a class suit ought to fail. Since
petitioners additionallyallege standing as citizens and
taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes
the sole ground of transcendental importance, while Atty.
Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his
standing.
There being no doctrinal definition of transcendental
importance, the following instructive determinants formulated
by former Supreme Court Justice Florentino P. Feliciano are
instructive: (1) the character of the funds or other assets
involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the
public respondent agency or instrumentality of the
government; and (3) the lack of any other party with a more
direct and specific interest in raising the questions being
raised.90 Applying these determinants, this Court is satisfied
that the issues raised herein are indeed of transcendental
importance.
In not a few cases, this Court has in fact adopted a liberal
attitude on the locus standi of a petitioner where the petitioner
is able to craft an issue of transcendental significance to the
people, as when the issues raised are of paramount importance
to the public.91 Such liberality does not, however, mean that
the requirement that a party should have an interest in the
matter is totally eliminated. A party must, at the very least,
still plead the existence of such interest, it not being one of
which courts can take judicial notice. In petitioner Vallejos'
case, he failed to allege any interest in the case. He does not
thus have standing.
With respect to the motions for intervention, Rule 19, Section
2 of the Rules of Court requires an intervenor to possess a
legal interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an
officer thereof. While intervention is not a matter of right, it
may be permitted by the courts when the applicant shows facts
which satisfy the requirements of the law authorizing
intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino
Quadra's case, they seek to join petitioners Candelaria, et.
al. in G.R. No. 160262. Since, save for one additional issue,
they raise the same issues and the same standing, and no
objection on the part of petitioners Candelaria, et. al. has been
interposed, this Court as earlier stated, granted the Motion for
Leave of Court to Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., et. al. sought to join petitioner
Francisco in G.R. No. 160261. Invoking their right as citizens
to intervene, alleging that "they will suffer if this insidious
scheme of the minority members of the House of
Representatives is successful," this Court found the requisites
for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos.
160261, 160262, 160263, 160277, 160292, 160295, and
160310 were of transcendental importance, World War II
Veterans Legionnaires of the Philippines, Inc. filed a
"Petition-in-Intervention with Leave to Intervene" to raise the
additional issue of whether or not the second impeachment
complaint against the Chief Justice is valid and based on any
of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., et al. and World War II
Veterans Legionnaires of the Philippines, Inc. possess a legal
interest in the matter in litigation the respective motions to
intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to
intervene for the limited purpose of making of record and
arguing a point of view that differs with Senate President
Drilon's. He alleges that submitting to this Court's jurisdiction
as the Senate President does will undermine the independence
of the Senate which will sit as an impeachment court once the
Articles of Impeachment are transmitted to it from the House
of Representatives. Clearly, Senator Pimentel possesses a legal
interest in the matter in litigation, he being a member of
Congress against which the herein petitions are directed. For
this reason, and to fully ventilate all substantial issues relating
to the matter at hand, his Motion to Intervene was granted and
he was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same
must be denied for, while he asserts an interest as a taxpayer,
he failed to meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do
said petitioners allege that their tax money is "being extracted
and spent in violation of specific constitutional protection
against abuses of legislative power," or that there is a
misapplication of such funds by respondent COMELEC, or
that public money is being deflected to any improper purpose.
Neither do petitioners seek to restrain respondent from
wasting public funds through the enforcement of an invalid or
unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed
even to allege that the act of petitioners will result in illegal
disbursement of public funds or in public money being
deflected to any improper purpose. Additionally, his mere
interest as a member of the Bar does not suffice to clothe him
with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice
Fernando, held that for a case to be considered ripe for
adjudication, "it is a prerequisite that something had by then
been accomplished or performed by either branch before a
court may come into the picture."96 Only then may the courts
pass on the validity of what was done, if and when the latter is
challenged in an appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity
of the filing of the second impeachment complaint against the
Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of
which is questioned. The questioned acts having been carried
out, i.e., the second impeachment complaint had been filed
with the House of Representatives and the 2001 Rules have
already been already promulgated and enforced, the
prerequisite that the alleged unconstitutional act should be
accomplished and performed before suit, as Tan v.
Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the
instant petitions are premature. Amicus curiae former Senate
President Jovito R. Salonga opines that there may be no urgent
need for this Court to render a decision at this time, it being
the final arbiter on questions of constitutionality anyway. He
thus recommends that all remedies in the House and Senate
should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P.
College of Law who suggests to this Court to take judicial
notice of on-going attempts to encourage signatories to the
second impeachment complaint to withdraw their signatures
and opines that the House Impeachment Rules provide for an
opportunity for members to raise constitutional questions
themselves when the Articles of Impeachment are presented
on a motion to transmit to the same to the Senate. The dean
maintains that even assuming that the Articles are transmitted
to the Senate, the Chief Justice can raise the issue of their
constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal
by the Representatives of their signatures would not, by itself,
cure the House Impeachment Rules of their constitutional
infirmity. Neither would such a withdrawal, by itself,
obliterate the questioned second impeachment complaint since
it would only place it under the ambit of Sections 3(2) and (3)
of Article XI of the Constitution97 and, therefore, petitioners
would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies
from either or both Houses of Congress before coming to this
Court is shown by the fact that, as previously discussed,
neither the House of Representatives nor the Senate is clothed
with the power to rule with definitiveness on the issue of
constitutionality, whether concerning impeachment
proceedings or otherwise, as said power is exclusively vested
in the judiciary by the earlier quoted Section I, Article VIII of
the Constitution. Remedy cannot be sought from a body which
is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice
Roberto Concepcion defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance,
what it means in ordinary parlance, namely, a question of
policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the
Government." It is concerned with issues dependent upon
the wisdom, not legality, of a particular measure.99(Italics in
the original)
Prior to the 1973 Constitution, without consistency and
seemingly without any rhyme or reason, this Court vacillated
on its stance of taking cognizance of cases which involved
political questions. In some cases, this Court hid behind the
cover of the political question doctrine and refused to exercise
its power of judicial review.100 In other cases, however,
despite the seeming political nature of the therein issues
involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions
conferred upon political bodies.101 Even in the landmark
1988 case of Javellana v. Executive Secretary102 which raised
the issue of whether the 1973 Constitution was ratified, hence,
in force, this Court shunted the political question doctrine and
took cognizance thereof. Ratification by the people of a
Constitution is a political question, it being a question decided
by the people in their sovereign capacity.
The frequency with which this Court invoked the political
question doctrine to refuse to take jurisdiction over certain
cases during the Marcos regime motivated Chief Justice
Concepcion, when he became a Constitutional Commissioner,
to clarify this Court's power of judicial review and its
application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made,
I suppose, the usual comment that the judiciary is the weakest
among the three major branches of the service. Since the
legislature holds the purse and the executive the sword, the
judiciary has nothing with which to enforce its decisions or
commands except the power of reason and appeal to
conscience which, after all, reflects the will of God, and is the
most powerful of all other powers without exception. x x x
And so, with the body's indulgence, I will proceed to read the
provisions drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former
Constitutions. It says:
The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read
it first and explain.
Judicial power includes the duty of courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part or instrumentality of the
government.
Fellow Members of this Commission, this is actually a product
of our experience during martial law. As a matter of fact, it
has some antecedents in the past, but the role of the judiciary
during the deposed regime was marred considerably by the
circumstance that in a number of cases against the
government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees,
and other matters related to the operation and effect of martial
law failed because the government set up the defense of
political question. And the Supreme Court said: "Well, since it
is political, we have no authority to pass upon it." The
Committee on the Judiciary feels that this was not a proper
solution of the questions involved. It did not merely request an
encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law
regime. I am sure the members of the Bar are familiar with
this situation. But for the benefit of the Members of the
Commission who are not lawyers, allow me to explain. I will
start with a decision of the Supreme Court in 1973 on the case
of Javellana vs. the Secretary of Justice, if I am not mistaken.
Martial law was announced on September 22, although the
proclamation was dated September 21. The obvious reason for
the delay in its publication was that the administration had
apprehended and detained prominent newsmen on September
21. So that when martial law was announced on September 22,
the media hardly published anything about it. In fact, the
media could not publish any story not only because our main
writers were already incarcerated, but also because those who
succeeded them in their jobs were under mortal threat of being
the object of wrath of the ruling party. The 1971
Constitutional Convention had begun on June 1, 1971 and by
September 21 or 22 had not finished the Constitution; it had
barely agreed in the fundamentals of the Constitution. I forgot
to say that upon the proclamation of martial law, some
delegates to that 1971 Constitutional Convention, dozens of
them, were picked up. One of them was our very own
colleague, Commissioner Calderon. So, the unfinished draft of
the Constitution was taken over by representatives of
Malacañang. In 17 days, they finished what the delegates to
the 1971 Constitutional Convention had been unable to
accomplish for about 14 months. The draft of the 1973
Constitution was presented to the President around December
1, 1972, whereupon the President issued a decree calling a
plebiscite which suspended the operation of some provisions
in the martial law decree which prohibited discussions, much
less public discussions of certain matters of public concern.
The purpose was presumably to allow a free discussion on the
draft of the Constitution on which a plebiscite was to be held
sometime in January 1973. If I may use a word famous by our
colleague, Commissioner Ople, during the interregnum,
however, the draft of the Constitution was analyzed and
criticized with such a telling effect that Malacañang felt the
danger of its approval. So, the President suspended
indefinitely the holding of the plebiscite and announced that
he would consult the people in a referendum to be held from
January 10 to January 15. But the questions to be submitted in
the referendum were not announced until the eve of its
scheduled beginning, under the supposed supervision not of
the Commission on Elections, but of what was then designated
as "citizens assemblies or barangays." Thus the barangays
came into existence. The questions to be propounded were
released with proposed answers thereto, suggesting that it was
unnecessary to hold a plebiscite because the answers given in
the referendum should be regarded as the votes cast in the
plebiscite. Thereupon, a motion was filed with the Supreme
Court praying that the holding of the referendum be
suspended. When the motion was being heard before the
Supreme Court, the Minister of Justice delivered to the Court a
proclamation of the President declaring that the new
Constitution was already in force because the overwhelming
majority of the votes cast in the referendum favored the
Constitution. Immediately after the departure of the Minister
of Justice, I proceeded to the session room where the case was
being heard. I then informed the Court and the parties the
presidential proclamation declaring that the 1973 Constitution
had been ratified by the people and is now in force.
A number of other cases were filed to declare the presidential
proclamation null and void. The main defense put up by the
government was that the issue was a political question and that
the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January
10 to January 15, the vast majority ratified the draft of the
Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified
of any referendum in their respective places of residence,
much less did they participate in the alleged referendum. None
of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So,
a majority of the members of the Court felt that there had been
no referendum.
Second, a referendum cannot substitute for a plebiscite. There
is a big difference between a referendum and a plebiscite. But
another group of justices upheld the defense that the issue was
a political question. Whereupon, they dismissed the case. This
is not the only major case in which the plea of "political
question" was set up. There have been a number of other cases
in the past.
x x x The defense of the political question was rejected
because the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform
its functions, it faced the following questions: What is judicial
power? What is a political question?
The Supreme Court, like all other courts, has one main
function: to settle actual controversies involving conflicts of
rights which are demandable and enforceable. There are rights
which are guaranteed by law but cannot be enforced by a
judiciary party. In a decided case, a husband complained that
his wife was unwilling to perform her duties as a wife. The
Court said: "We can tell your wife what her duties as such are
and that she is bound to comply with them, but we cannot
force her physically to discharge her main marital duty to her
husband. There are some rights guaranteed by law, but they
are so personal that to enforce them by actual compulsion
would be highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I
provides that:
Judicial power includes the duty of courts to settle actual
controversies involving rights which are legally demandable
or enforceable . . .
The courts, therefore, cannot entertain, much less decide,
hypothetical questions. In a presidential system of
government, the Supreme Court has, also another important
function. The powers of government are generally considered
divided into three branches: the Legislative, the Executive and
the Judiciary. Each one is supreme within its own sphere and
independent of the others. Because of that supremacy power to
determine whether a given law is valid or not is vested in
courts of justice.
Briefly stated, courts of justice determine the limits of power
of the agencies and offices of the government as well as those
of its officers. In other words, the judiciary is the final arbiter
on the question whether or not a branch of government or any
of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which
means that the courts cannot hereafter evade the duty to settle
matters of this nature, by claiming that such matters constitute
a political question.
I have made these extended remarks to the end that the
Commissioners may have an initial food for thought on the
subject of the judiciary.103 (Italics in the original; emphasis
supplied)
During the deliberations of the Constitutional Commission,
Chief Justice Concepcion further clarified the concept of
judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial
power" but judicial power is not vested in the Supreme Court
alone but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman
seems to identify political questions with jurisdictional
questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to
ordinary cases but where there is a question as to whether the
government had authority or had abused its authority to the
extent of lacking jurisdiction or excess of jurisdiction, that is
not a political question. Therefore, the court has the duty to
decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be
decided by the Supreme Court according to the new numerical
need for votes.
On another point, is it the intention of Section 1 to do away
with the political question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse
of discretion, amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not
intended to do away with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define
what is judicial power. But the Gentleman will notice it says,
"judicial power includes" and the reason being that the
definition that we might make may not cover all possible
areas.
FR. BERNAS. So, this is not an attempt to solve the problems
arising from the political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact
that truly political questions are beyond the pale of judicial
power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986
Constitutional Commission, it is clear that judicial power is
not only a power; it is also a duty, a duty which cannot be
abdicated by the mere specter of this creature called the
political question doctrine. Chief Justice Concepcion hastened
to clarify, however, that Section 1, Article VIII was not
intended to do away with "truly political questions." From this
clarification it is gathered that there are two species of
political questions: (1) "truly political questions" and (2) those
which "are not truly political questions."
Truly political questions are thus beyond judicial review, the
reason for respect of the doctrine of separation of powers to be
maintained. On the other hand, by virtue of Section 1, Article
VIII of the Constitution, courts can review questions which
are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin
of the UP College of Law, this Court has in fact in a number
of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through
Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas
which the Court, under previous constitutions, would have
normally left to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through
Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this
Court must perform under the Constitution. Moreover, as held
in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of the
principle in appropriate cases."108 (Emphasis and
underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani
Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we
were to assume that the issue presented before us was political
in nature, we would still not be precluded from resolving it
under the expanded jurisdiction conferred upon us that now
covers, in proper cases, even the political question.110 x x x
(Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are
justiciable political questions and non-justiciable political
questions, however. Identification of these two species of
political questions may be problematic. There has been no
clear standard. The American case of Baker v.
Carr111 attempts to provide some:
x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government;
or an unusual need for questioning adherence to a political
decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on
one question.112(Underscoring supplied)
Of these standards, the more reliable have been the first three:
(1) a textually demonstrable constitutional commitment of the
issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for
resolving it; and (3) the impossibility of deciding without an
initial policy determination of a kind clearly for non-judicial
discretion. These standards are not separate and distinct
concepts but are interrelated to each in that the presence of one
strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the
American concept of judicial review is radically different from
our current concept, for Section 1, Article VIII of the
Constitution provides our courts with far less discretion in
determining whether they should pass upon a constitutional
issue.
In our jurisdiction, the determination of a truly political
question from a non-justiciable political question lies in the
answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the
government properly acted within such limits. This Court shall
thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment
complaint constitute valid impeachable offenses under the
Constitution.
II. Whether the second impeachment complaint was filed in
accordance with Section 3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee
on Justice into the Judicial Development Fund is an
unconstitutional infringement of the constitutionally mandated
fiscal autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on
Impeachment adopted by the 12th Congress are
unconstitutional for violating the provisions of Section 3,
Article XI of the Constitution.
V. Whether the second impeachment complaint is barred
under Section 3(5) of Article XI of the Constitution.
The first issue goes into the merits of the second impeachment
complaint over which this Court has no jurisdiction. More
importantly, any discussion of this issue would require this
Court to make a determination of what constitutes an
impeachable offense. Such a determination is a purely political
question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the
deliberations of the Constitutional Commission.113
Although Section 2 of Article XI of the Constitution
enumerates six grounds for impeachment, two of these,
namely, other high crimes and betrayal of public trust, elude a
precise definition. In fact, an examination of the records of the
1986 Constitutional Commission shows that the framers could
find no better way to approximate the boundaries of betrayal
of public trust and other high crimes than by alluding to both
positive and negative examples of both, without arriving at
their clear cut definition or even a standard
therefor.114 Clearly, the issue calls upon this court to decide a
non-justiciable political question which is beyond the scope of
its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue
assailing the constitutionality of a governmental act should be
avoided whenever possible. Thus, in the case of Sotto v.
Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass
upon a constitutional question and decide a law to be
unconstitutional or invalid, unless such question is raised by
the parties and that when it is raised, if the record also presents
some other ground upon which the court may rest its
judgment, that course will be adopted and the constitutional
question will be left for consideration until a case arises in
which a decision upon such question will be
unavoidable.116 [Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of
Agrarian Reform,117 where this Court invalidated Sections 13
and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:
It has been established that this Court will assume jurisdiction
over a constitutional question only if it is shown that the
essential requisites of a judicial inquiry into such a question
are first satisfied. Thus, there must be an actual case or
controversy involving a conflict of legal rights susceptible of
judicial determination, the constitutional question must have
been opportunely raised by the proper party, and the resolution
of the question is unavoidably necessary to the decision of the
case itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of
constitutionality unless it is truly unavoidable and is the
very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all
seeking the invalidity of the second impeachment complaint,
collectively raise several constitutional issues upon which the
outcome of this controversy could possibly be made to rest. In
determining whether one, some or all of the remaining
substantial issues should be passed upon, this Court is guided
by the related cannon of adjudication that "the court should
not form a rule of constitutional law broader than is required
by the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et
al. argue that, among other reasons, the second impeachment
complaint is invalid since it directly resulted from a
Resolution120 calling for a legislative inquiry into the JDF,
which Resolution and legislative inquiry petitioners claim to
likewise be unconstitutional for being: (a) a violation of the
rules and jurisprudence on investigations in aid of legislation;
(b) an open breach of the doctrine of separation of powers; (c)
a violation of the constitutionally mandated fiscal autonomy of
the judiciary; and (d) an assault on the independence of the
judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s
claims, it is the studied opinion of this Court that the issue of
the constitutionality of the said Resolution and resulting
legislative inquiry is too far removed from the issue of the
validity of the second impeachment complaint. Moreover, the
resolution of said issue would, in the Court's opinion, require
it to form a rule of constitutional law touching on the separate
and distinct matter of legislative inquiries in general, which
would thus be broader than is required by the facts of these
consolidated cases. This opinion is further strengthened by the
fact that said petitioners have raised other grounds in support
of their petition which would not be adversely affected by the
Court's ruling.
En passant, this Court notes that a standard for the conduct of
legislative inquiries has already been enunciated by this Court
in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both
houses of Congress to conduct inquiries in aid of legislation.
Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
The power of both houses of Congress to conduct inquiries in
aid of legislation is not, therefore absolute or unlimited. Its
exercise is circumscribed by the afore-quoted provision of the
Constitution. Thus, as provided therein, the investigation must
be "in aid of legislation in accordance with its duly published
rules of procedure" and that "the rights of persons appearing in
or affected by such inquiries shall be respected." It follows
then that the right rights of persons under the Bill of Rights
must be respected, including the right to due process and the
right not be compelled to testify against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and
Pete Quirino Quadra, while joining the original petition of
petitioners Candelaria, et. al., introduce the new argument that
since the second impeachment complaint was verified and
filed only by Representatives Gilberto Teodoro, Jr. and Felix
William Fuentebella, the same does not fall under the
provisions of Section 3 (4), Article XI of the Constitution
which reads:
Section 3(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the Members
of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of
Representatives signed a Resolution of
Endorsement/Impeachment, the same did not satisfy the
requisites for the application of the afore-mentioned section in
that the "verified complaint or resolution of impeachment"
was not filed "by at least one-third of all the Members of the
House." With the exception of Representatives Teodoro and
Fuentebella, the signatories to said Resolution are alleged to
have verified the same merely as a "Resolution of
Endorsement." Intervenors point to the "Verification" of the
Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of
Endorsement of the abovementioned Complaint of
Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the
Constitution requires in order for said second impeachment
complaint to automatically become the Articles of
Impeachment and for trial in the Senate to begin "forthwith,"
is that the verified complaint be "filed," not merely endorsed,
by at least one-third of the Members of the House of
Representatives. Not having complied with this requirement,
they concede that the second impeachment complaint should
have been calendared and referred to the House Committee on
Justice under Section 3(2), Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be
filed by any Member of the House of Representatives or by
any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper Committee
within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall
submit its report to the House within sixty session days from
such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
Intervenors' foregoing position is echoed by Justice
Maambong who opined that for Section 3 (4), Article XI of
the Constitution to apply, there should be 76 or more
representatives who signed and verified the second
impeachment complaint as complainants, signed and verified
the signatories to a resolution of impeachment. Justice
Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the
members of the House of Representatives
as endorsers is not the resolution of impeachment
contemplated by the Constitution, such resolution of
endorsement being necessary only from at least one Member
whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal
and Quadra, does indeed limit the scope of the constitutional
issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis
mota or crux of the present controversy. Chief among this is
the fact that only Attorneys Macalintal and Quadra,
intervenors in G.R. No. 160262, have raised this issue as a
ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for deciding
the instant consolidated petitions would not only render for
naught the efforts of the original petitioners in G.R. No.
160262, but the efforts presented by the other petitioners as
well.
Again, the decision to discard the resolution of this issue as
unnecessary for the determination of the instant cases is made
easier by the fact that said intervenors Macalintal and Quadra
have joined in the petition of Candelaria, et. al., adopting the
latter's arguments and issues as their own. Consequently, they
are not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues,
inextricably linked as they are, constitute the very lis mota of
the instant controversy: (1) whether Sections 15 and 16 of
Rule V of the House Impeachment Rules adopted by the 12th
Congress are unconstitutional for violating the provisions of
Section 3, Article XI of the Constitution; and (2) whether, as a
result thereof, the second impeachment complaint is barred
under Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint
on the ground that the Senate, sitting as an impeachment court,
has the sole power to try and decide all cases of impeachment.
Again, this Court reiterates that the power of judicial review
includes the power of review over justiciable issues in
impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al.
argue that "[t]here is a moral compulsion for the Court to not
assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125But this
argument is very much like saying the Legislature has a moral
compulsion not to pass laws with penalty clauses because
Members of the House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not
an option before this Court. Adjudication may not be declined,
because this Court is not legally disqualified. Nor can
jurisdiction be renounced as there is no other tribunal to which
the controversy may be referred."126 Otherwise, this Court
would be shirking from its duty vested under Art. VIII, Sec.
1(2) of the Constitution. More than being clothed with
authority thus, this Court is duty-bound to take cognizance of
the instant petitions.127 In the august words of amicus
curiae Father Bernas, "jurisdiction is not just a power; it is a
solemn duty which may not be renounced. To renounce it,
even if it is vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under
our system of government cannot inhibit itself and must rule
upon the challenge because no other office has the authority to
do so.128 On the occasion that this Court had been an
interested party to the controversy before it, it has acted upon
the matter "not with officiousness but in the discharge of an
unavoidable duty and, as always, with detachment and
fairness."129 After all, "by [his] appointment to the office, the
public has laid on [a member of the judiciary] their confidence
that [he] is mentally and morally fit to pass upon the merits of
their varied contentions. For this reason, they expect [him] to
be fearless in [his] pursuit to render justice, to be unafraid to
displease any person, interest or power and to be equipped
with a moral fiber strong enough to resist the temptations
lurking in [his] office."130
The duty to exercise the power of adjudication regardless of
interest had already been settled in the case of Abbas v. Senate
Electoral Tribunal.131 In that case, the petitioners filed with
the respondent Senate Electoral Tribunal a Motion for
Disqualification or Inhibition of the Senators-Members thereof
from the hearing and resolution of SET Case No. 002-87 on
the ground that all of them were interested parties to said case
as respondents therein. This would have reduced the
Tribunal's membership to only its three Justices-Members
whose disqualification was not sought, leaving them to decide
the matter. This Court held:
Where, as here, a situation is created which precludes the
substitution of any Senator sitting in the Tribunal by any of his
other colleagues in the Senate without inviting the same
objections to the substitute's competence, the proposed mass
disqualification, if sanctioned and ordered, would leave the
Tribunal no alternative but to abandon a duty that no other
court or body can perform, but which it cannot lawfully
discharge if shorn of the participation of its entire membership
of Senators.
To our mind, this is the overriding consideration — that the
Tribunal be not prevented from discharging a duty which it
alone has the power to perform, the performance of which is
in the highest public interest as evidenced by its being
expressly imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that
the framers of the Constitution could not have been unaware
of the possibility of an election contest that would involve all
Senators—elect, six of whom would inevitably have to sit in
judgment thereon. Indeed, such possibility might surface again
in the wake of the 1992 elections when once more, but for the
last time, all 24 seats in the Senate will be at stake. Yet the
Constitution provides no scheme or mode for settling such
unusual situations or for the substitution of Senators
designated to the Tribunal whose disqualification may be
sought. Litigants in such situations must simply place their
trust and hopes of vindication in the fairness and sense of
justice of the Members of the Tribunal. Justices and Senators,
singly and collectively.
Let us not be misunderstood as saying that no Senator-
Member of the Senate Electoral Tribunal may inhibit or
disqualify himself from sitting in judgment on any case before
said Tribunal. Every Member of the Tribunal may, as his
conscience dictates, refrain from participating in the resolution
of a case where he sincerely feels that his personal interests or
biases would stand in the way of an objective and impartial
judgment. What we are merely saying is that in the light of the
Constitution, the Senate Electoral Tribunal cannot legally
function as such, absent its entire membership of Senators and
that no amendment of its Rules can confer on the three
Justices-Members alone the power of valid adjudication of a
senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was
held that:
Moreover, to disqualify any of the members of the Court,
particularly a majority of them, is nothing short of pro
tanto depriving the Court itself of its jurisdiction as established
by the fundamental law. Disqualification of a judge is a
deprivation of his judicial power. And if that judge is the one
designated by the Constitution to exercise the jurisdiction of
his court, as is the case with the Justices of this Court, the
deprivation of his or their judicial power is equivalent to the
deprivation of the judicial power of the court itself. It affects
the very heart of judicial independence. The proposed mass
disqualification, if sanctioned and ordered, would leave the
Court no alternative but to abandon a duty which it cannot
lawfully discharge if shorn of the participation of its entire
membership of Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the
Court when it exercises its power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo
Fernan cited the "seven pillars" of limitations of the power of
judicial review, enunciated by US Supreme Court Justice
Brandeis in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of
legislation in a friendly, non-adversary proceeding, declining
because to decide such questions 'is legitimate only in the last
resort, and as a necessity in the determination of real, earnest
and vital controversy between individuals. It never was the
thought that, by means of a friendly suit, a party beaten in the
legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional
law in advance of the necessity of deciding it.' . . . 'It is not the
habit of the Court to decide questions of a constitutional
nature unless absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be
applied.'
4. The Court will not pass upon a constitutional question
although properly presented by the record, if there is also
present some other ground upon which the case may be
disposed of. This rule has found most varied application.
Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide
only the latter. Appeals from the highest court of a state
challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment
can be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its
operation. Among the many applications of this rule, none is
more striking than the denial of the right of challenge to one
who lacks a personal or property right. Thus, the challenge by
a public official interested only in the performance of his
official duty will not be entertained . . . In Fairchild v.
Hughes, the Court affirmed the dismissal of a suit brought by
a citizen who sought to have the Nineteenth Amendment
declared unconstitutional. In Massachusetts v. Mellon, the
challenge of the federal Maternity Act was not entertained
although made by the Commonwealth on behalf of all its
citizens.
6. The Court will not pass upon the constitutionality of a
statute at the instance of one who has availed himself of its
benefits.
7. When the validity of an act of the Congress is drawn in
question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly possible
by which the question may be avoided (citations omitted).
The foregoing "pillars" of limitation of judicial review,
summarized in Ashwander v. TVA from different decisions of
the United States Supreme Court, can be encapsulated into the
following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as
required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason
of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by
this Court in the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial
power
2. the person challenging the act must have "standing" to
challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement
3. the question of constitutionality must be raised at the
earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the
case.136
Respondents Speaker de Venecia, et. al. raise another
argument for judicial restraint the possibility that "judicial
review of impeachments might also lead to embarrassing
conflicts between the Congress and the [J]udiciary." They
stress the need to avoid the appearance of impropriety or
conflicts of interest in judicial hearings, and the scenario that it
would be confusing and humiliating and risk serious political
instability at home and abroad if the judiciary countermanded
the vote of Congress to remove an impeachable
official.137 Intervenor Soriano echoes this argument by
alleging that failure of this Court to enforce its Resolution
against Congress would result in the diminution of its judicial
authority and erode public confidence and faith in the
judiciary.
Such an argument, however, is specious, to say the least. As
correctly stated by the Solicitor General, the possibility of the
occurrence of a constitutional crisis is not a reason for this
Court to refrain from upholding the Constitution in all
impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not
precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court
refuses to act.
x x x Frequently, the fight over a controversial legislative or
executive act is not regarded as settled until the Supreme
Court has passed upon the constitutionality of the act
involved, the judgment has not only juridical effects but also
political consequences. Those political consequences may
follow even where the Court fails to grant the petitioner's
prayer to nullify an act for lack of the necessary number of
votes. Frequently, failure to act explicitly, one way or the
other, itself constitutes a decision for the respondent and
validation, or at least quasi-validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court
was split and "in the end there were not enough votes either to
grant the petitions, or to sustain respondent's claims,"140 the
pre-existing constitutional order was disrupted which paved
the way for the establishment of the martial law regime.
Such an argument by respondents and intervenor also
presumes that the coordinate branches of the government
would behave in a lawless manner and not do their duty under
the law to uphold the Constitution and obey the laws of the
land. Yet there is no reason to believe that any of the branches
of government will behave in a precipitate manner and risk
social upheaval, violence, chaos and anarchy by encouraging
disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is
well guided by the doctrine in People v. Veneracion,
to wit:141
Obedience to the rule of law forms the bedrock of our system
of justice. If [public officers], under the guise of religious or
political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to exercise
the duties of their office, then law becomes meaningless. A
government of laws, not of men excludes the exercise of broad
discretionary powers by those acting under its authority.
Under this system, [public officers] are guided by the Rule of
Law, and ought "to protect and enforce it without fear or
favor," resist encroachments by governments, political parties,
or even the interference of their own personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De
Venecia, argues that Sections 16 and 17 of Rule V of the
House Impeachment Rules do not violate Section 3 (5) of
Article XI of our present Constitution, contending that the
term "initiate" does not mean "to file;" that Section 3 (1) is
clear in that it is the House of Representatives, as a collective
body, which has the exclusive power to initiate all cases of
impeachment; that initiate could not possibly mean "to file"
because filing can, as Section 3 (2), Article XI of the
Constitution provides, only be accomplished in 3 ways, to wit:
(1) by a verified complaint for impeachment by any member
of the House of Representatives; or (2) by any citizen upon a
resolution of endorsement by any member; or (3) by at least
1/3 of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting the
initiation of impeachment proceedings against the same
officials could not have been violated as the impeachment
complaint against Chief Justice Davide and seven Associate
Justices had not been initiated as the House of
Representatives, acting as the collective body, has yet to act
on it.
The resolution of this issue thus hinges on the interpretation of
the term "initiate." Resort to statutory construction is,
therefore, in order.
That the sponsor of the provision of Section 3(5) of the
Constitution, Commissioner Florenz Regalado, who
eventually became an Associate Justice of this Court, agreed
on the meaning of "initiate" as "to file," as proffered and
explained by Constitutional Commissioner Maambong during
the Constitutional Commission proceedings, which he
(Commissioner Regalado) as amicus curiae affirmed during
the oral arguments on the instant petitions held on November
5, 2003 at which he added that the act of "initiating" included
the act of taking initial action on the complaint, dissipates any
doubt that indeed the word "initiate" as it twice appears in
Article XI (3) and (5) of the Constitution means to file the
complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as
dictionaries do, to begin, to commence, or set going. As
Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate
the first action," which jibes with Justice Regalado's position,
and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this
wise:
Briefly then, an impeachment proceeding is not a single act. It
is a comlexus of acts consisting of a beginning, a middle and
an end. The end is the transmittal of the articles of
impeachment to the Senate. The middle consists of those
deliberative moments leading to the formulation of the articles
of impeachment. The beginning or the initiation is the filing of
the complaint and its referral to the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by
Representatives Cojuangco and Fuentebella says that
impeachment is "deemed initiated" when the Justice
Committee votes in favor of impeachment or when the House
reverses a contrary vote of the Committee. Note that the Rule
does not say "impeachment proceedings" are initiated but
rather are "deemed initiated." The language is recognition that
initiation happened earlier, but by legal fiction there is an
attempt to postpone it to a time after actual initiation.
(Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the
Constitution is looking into the intent of the law. Fortunately,
the intent of the framers of the 1987 Constitution can be pried
from its records:
MR. MAAMBONG. With reference to Section 3, regarding
the procedure and the substantive provisions on impeachment,
I understand there have been many proposals and, I think,
these would need some time for Committee action.
However, I would just like to indicate that I submitted to the
Committee a resolution on impeachment proceedings, copies
of which have been furnished the Members of this body. This
is borne out of my experience as a member of the Committee
on Justice, Human Rights and Good Government which took
charge of the last impeachment resolution filed before the First
Batasang Pambansa. For the information of the Committee,
the resolution covers several steps in the impeachment
proceedings starting with initiation, action of the Speaker
committee action, calendaring of report, voting on the report,
transmittal referral to the Senate, trial and judgment by the
Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving
for a reconsideration of the approval of the amendment
submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of
the Articles of Impeachment on the floor. The procedure, as I
have pointed out earlier, was that the initiation starts with the
filing of the complaint. And what is actually done on the floor
is that the committee resolution containing the Articles of
Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by the
Committee on Style, it appears that the initiation starts on the
floor. If we only have time, I could cite examples in the case
of the impeachment proceedings of President Richard Nixon
wherein the Committee on the Judiciary submitted the
recommendation, the resolution, and the Articles of
Impeachment to the body, and it was the body who approved
the resolution. It is not the body which initiates it. It only
approves or disapproves the resolution. So, on that score,
probably the Committee on Style could help in rearranging
these words because we have to be very technical about this. I
have been bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate Rules are
with me. The proceedings on the case of Richard Nixon are
with me. I have submitted my proposal, but the Committee has
already decided. Nevertheless, I just want to indicate this on
record.
xxx
MR. MAAMBONG. I would just like to move for a
reconsideration of the approval of Section 3 (3). My
reconsideration will not at all affect the substance, but it is
only in keeping with the exact formulation of the Rules of the
House of Representatives of the United States regarding
impeachment.
I am proposing, Madam President, without doing damage to
any of this provision, that on page 2, Section 3 (3), from lines
17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on
line 19 after the word "resolution" the phrase WITH THE
ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the
whole section will now read: "A vote of at least one-third of
all the Members of the House shall be necessary either to
affirm a resolution WITH THE ARTICLES of Impeachment
OF the Committee or to override its contrary resolution. The
vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far
as the House of Representatives of the United States is
concerned, really starts from the filing of the verified
complaint and every resolution to impeach always carries with
it the Articles of Impeachment. As a matter of fact, the words
"Articles of Impeachment" are mentioned on line 25 in the
case of the direct filing of a verified compliant of one-third of
all the Members of the House. I will mention again, Madam
President, that my amendment will not vary the substance in
any way. It is only in keeping with the uniform procedure of
the House of Representatives of the United States Congress.
Thank you, Madam President.143 (Italics in the original;
emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was
clarified and accepted by the Committee on the Accountability
of Public Officers.144
It is thus clear that the framers intended "initiation" to start
with the filing of the complaint. In his amicus curiae brief,
Commissioner Maambong explained that "the obvious reason
in deleting the phrase "to initiate impeachment proceedings"
as contained in the text of the provision of Section 3 (3) was to
settle and make it understood once and for all that the
initiation of impeachment proceedings starts with the filing of
the complaint, and the vote of one-third of the House in a
resolution of impeachment does not initiate the impeachment
proceedings which was already initiated by the filing of a
verified complaint under Section 3, paragraph (2), Article XI
of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of
the same view as is Father Bernas, who was also a member of
the 1986 Constitutional Commission, that the word "initiate"
as used in Article XI, Section 3(5) means to file, both adding,
however, that the filing must be accompanied by an action to
set the complaint moving.
During the oral arguments before this Court, Father Bernas
clarified that the word "initiate," appearing in the
constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year,
(Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment
proceeding."
Father Bernas explains that in these two provisions, the
common verb is "to initiate." The object in the first sentence is
"impeachment case." The object in the second sentence is
"impeachment proceeding." Following the principle
of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment
case is the legal controversy that must be decided by the
Senate. Above-quoted first provision provides that the House,
by a vote of one-third of all its members, can bring a case to
the Senate. It is in that sense that the House has "exclusive
power" to initiate all cases of impeachment. No other body
can do it. However, before a decision is made to initiate a case
in the Senate, a "proceeding" must be followed to arrive at a
conclusion. A proceeding must be "initiated." To initiate,
which comes from the Latin word initium, means to begin. On
the other hand, proceeding is a progressive noun. It has a
beginning, a middle, and an end. It takes place not in the
Senate but in the House and consists of several steps: (1) there
is the filing of a verified complaint either by a Member of the
House of Representatives or by a private citizen endorsed by a
Member of the House of the Representatives; (2) there is the
processing of this complaint by the proper Committee which
may either reject the complaint or uphold it; (3) whether the
resolution of the Committee rejects or upholds the complaint,
the resolution must be forwarded to the House for further
processing; and (4) there is the processing of the same
complaint by the House of Representatives which either
affirms a favorable resolution of the Committee or overrides a
contrary resolution by a vote of one-third of all the members.
If at least one third of all the Members upholds the complaint,
Articles of Impeachment are prepared and transmitted to the
Senate. It is at this point that the House "initiates an
impeachment case." It is at this point that an impeachable
public official is successfully impeached. That is, he or she is
successfully charged with an impeachment "case" before the
Senate as impeachment court.
Father Bernas further explains: The "impeachment
proceeding" is not initiated when the complaint is transmitted
to the Senate for trial because that is the end of the House
proceeding and the beginning of another proceeding, namely
the trial. Neither is the "impeachment proceeding" initiated
when the House deliberates on the resolution passed on to it
by the Committee, because something prior to that has already
been done. The action of the House is already a further step in
the proceeding, not its initiation or beginning. Rather, the
proceeding is initiated or begins, when a verified complaint is
filed and referred to the Committee on Justice for action. This
is the initiating step which triggers the series of steps that
follow.
The framers of the Constitution also understood initiation in
its ordinary meaning. Thus when a proposal reached the floor
proposing that "A vote of at least one-third of all the Members
of the House shall be necessary… to initiate impeachment
proceedings," this was met by a proposal to delete the line on
the ground that the vote of the House does not initiate
impeachment proceeding but rather the filing of a complaint
does.146 Thus the line was deleted and is not found in the
present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No
impeachment proceeding shall be initiated against the same
official more than once within a period of one year," it means
that no second verified complaint may be accepted and
referred to the Committee on Justice for action. By his
explanation, this interpretation is founded on the common
understanding of the meaning of "to initiate" which means to
begin. He reminds that the Constitution is ratified by the
people, both ordinary and sophisticated, as they understand it;
and that ordinary people read ordinary meaning into ordinary
words and not abstruse meaning, they ratify words as they
understand it and not as sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a
body can initiate impeachment proceedings because Section 3
(1) says "The House of Representatives shall have the
exclusive power to initiate all cases of impeachment," This is
a misreading of said provision and is contrary to the principle
of reddendo singula singulis by equating "impeachment cases"
with "impeachment proceeding."
From the records of the Constitutional Commission, to
the amicus curiae briefs of two former Constitutional
Commissioners, it is without a doubt that the term "to initiate"
refers to the filing of the impeachment complaint coupled with
Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of
filing and referral or endorsement of the impeachment
complaint to the House Committee on Justice or, by the filing
by at least one-third of the members of the House of
Representatives with the Secretary General of the House, the
meaning of Section 3 (5) of Article XI becomes clear. Once an
impeachment complaint has been initiated, another
impeachment complaint may not be filed against the same
official within a one year period.
Under Sections 16 and 17 of Rule V of the House
Impeachment Rules, impeachment proceedings are deemed
initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is
sufficient in substance, or (2) once the House itself affirms or
overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in
substance or (3) by the filing or endorsement before the
Secretary-General of the House of Representatives of a
verified complaint or a resolution of impeachment by at least
1/3 of the members of the House. These rules clearly
contravene Section 3 (5) of Article XI since the rules give the
term "initiate" a meaning different meaning from filing and
referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that
this Court could not use contemporaneous construction as an
aid in the interpretation of Sec.3 (5) of Article XI, citing Vera
v. Avelino147 wherein this Court stated that "their personal
opinions (referring to Justices who were delegates to the
Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different
footing from the properly recorded utterances of debates and
proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention
to actors who are so absorbed in their emotional roles that
intelligent spectators may know more about the real meaning
because of the latter's balanced perspectives and
disinterestedness.148
Justice Gutierrez's statements have no application in the
present petitions. There are at present only two members of
this Court who participated in the 1986 Constitutional
Commission – Chief Justice Davide and Justice Adolf Azcuna.
Chief Justice Davide has not taken part in these proceedings
for obvious reasons. Moreover, this Court has not simply
relied on the personal opinions now given by members of the
Constitutional Commission, but has examined the records of
the deliberations and proceedings thereof.
Respondent House of Representatives counters that under
Section 3 (8) of Article XI, it is clear and unequivocal that it
and only it has the power to make and interpret its rules
governing impeachment. Its argument is premised on the
assumption that Congress has absolute power to promulgate
its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall
promulgate its rules on impeachment to effectively carry out
the purpose of this section." Clearly, its power to promulgate
its rules on impeachment is limited by the phrase "to
effectively carry out the purpose of this section." Hence, these
rules cannot contravene the very purpose of the Constitution
which said rules were intended to effectively carry out.
Moreover, Section 3 of Article XI clearly provides for other
specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within
three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such
referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the
House shall be necessary to either affirm a favorable
resolution with the Articles of Impeachment of the Committee,
or override its contrary resolution. The vote of each Member
shall be recorded.
(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the Members
of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
It is basic that all rules must not contravene the Constitution
which is the fundamental law. If as alleged Congress
had absolute rule making power, then it would by necessary
implication have the power to alter or amend the meaning of
the Constitution without need of referendum.
In Osmeña v. Pendatun,149 this Court held that it is within the
province of either House of Congress to interpret its rules and
that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of
the Commission on Appointments,150 Justice (later Chief
Justice) Enrique Fernando, speaking for this Court and quoting
Justice Brandeis in United States v. Smith,151 declared that
where the construction to be given to a rule affects persons
other than members of the Legislature, the question becomes
judicial in nature. In Arroyo v. De
Venecia,152 quoting United States v. Ballin, Joseph &
Co.,153 Justice Vicente Mendoza, speaking for this Court,
held that while the Constitution empowers each house to
determine its rules of proceedings, it may not by its rules
ignore constitutional restraints or violate fundamental rights,
and further that there should be a reasonable relation between
the mode or method of proceeding established by the rule and
the result which is sought to be attained. It is only within these
limitations that all matters of method are open to the
determination of the Legislature. In the same case of Arroyo v.
De Venecia, Justice Reynato S. Puno, in his Concurring and
Dissenting Opinion, was even more emphatic as he stressed
that in the Philippine setting there is even more reason for
courts to inquire into the validity of the Rules of
Congress, viz:
With due respect, I do not agree that the issues posed by the
petitioner are non-justiciable. Nor do I agree that we will
trivialize the principle of separation of power if we assume
jurisdiction over he case at bar. Even in the United States, the
principle of separation of power is no longer an impregnable
impediment against the interposition of judicial power on
cases involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144
US 1) as a window to view the issues before the Court. It is
in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review
congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each
house may determine the rules of its proceedings." It appears
that in pursuance of this authority the House had, prior to that
day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the
Speaker, the names of members sufficient to make a quorum
in the hall of the House who do not vote shall be noted by the
clerk and recorded in the journal, and reported to the Speaker
with the names of the members voting, and be counted and
announced in determining the presence of a quorum to do
business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The
question, therefore, is as to the validity of this rule, and not
what methods the Speaker may of his own motion resort to for
determining the presence of a quorum, nor what matters the
Speaker or clerk may of their own volition place upon the
journal. Neither do the advantages or disadvantages, the
wisdom or folly, of such a rule present any matters for judicial
consideration. With the courts the question is only one of
power. The Constitution empowers each house to determine
its rules of proceedings. It may not by its rules ignore
constitutional restraints or violate fundamental rights, and
there should be a reasonable relation between the mode or
method of proceedings established by the rule and the result
which is sought to be attained. But within these limitations all
matters of method are open to the determination of the House,
and it is no impeachment of the rule to say that some other
way would be better, more accurate, or even more just. It is no
objection to the validity of a rule that a different one has been
prescribed and in force for a length of time. The power to
make rules is not one which once exercised is exhausted. It is
a continuous power, always subject to be exercised by the
House, and within the limitations suggested, absolute and
beyond the challenge of any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass
upon the validity of congressional rules, i.e, whether they are
constitutional. Rule XV was examined by the Court and it was
found to satisfy the test: (1) that it did not ignore any
constitutional restraint; (2) it did not violate any fundamental
right; and (3) its method had a reasonable relationship with the
result sought to be attained. By examining Rule XV, the Court
did not allow its jurisdiction to be defeated by the mere
invocation of the principle of separation of powers.154
xxx
In the Philippine setting, there is a more compelling reason for
courts to categorically reject the political question defense
when its interposition will cover up abuse of power. For
section 1, Article VIII of our Constitution
was intentionally cobbled to empower courts "x x x to
determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government." This
power is new and was not granted to our courts in the 1935
and 1972 Constitutions. It was not also xeroxed from the US
Constitution or any foreign state constitution. The CONCOM
granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state
power were shielded from judicial scrutiny by the misuse of
the political question doctrine. Led by the eminent former
Chief Justice Roberto Concepcion, the CONCOM expanded
and sharpened the checking powers of the judiciary vis-à-vis
the Executive and the Legislative departments of
government.155
xxx
The Constitution cannot be any clearer. What it granted to this
Court is not a mere power which it can decline to exercise.
Precisely to deter this disinclination, the Constitution imposed
it as a duty of this Court to strike down any act of a branch or
instrumentality of government or any of its officials done with
grave abuse of discretion amounting to lack or excess of
jurisdiction. Rightly or wrongly, the Constitution has
elongated the checking powers of this Court against the other
branches of government despite their more democratic
character, the President and the legislators being elected by the
people.156
xxx
The provision defining judicial power as including the 'duty of
the courts of justice. . . to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of
the Government' constitutes the capstone of the efforts of the
Constitutional Commission to upgrade the powers of this court
vis-à-vis the other branches of government. This provision
was dictated by our experience under martial law which taught
us that a stronger and more independent judiciary is needed to
abort abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to
annul acts of government committed with grave abuse of
discretion, the new Constitution transformed this Court from
passivity to activism. This transformation, dictated by our
distinct experience as nation, is not merely evolutionary but
revolutionary.Under the 1935 and the 1973 Constitutions, this
Court approached constitutional violations by initially
determining what it cannot do; under the 1987 Constitution,
there is a shift in stress – this Court is mandated to approach
constitutional violations not by finding out what it should not
do but what it must do. The Court must discharge this solemn
duty by not resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious
consideration to this new constitutional provision as the case
at bar once more calls us to define the parameters of our
power to review violations of the rules of the House. We will
not be true to our trust as the last bulwark against government
abuses if we refuse to exercise this new power or if we wield it
with timidity. To be sure, it is this exceeding timidity to
unsheathe the judicial sword that has increasingly emboldened
other branches of government to denigrate, if not defy, orders
of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the
latitude of judicial power is distinctly Filipino and its
interpretation should not be depreciated by undue reliance on
inapplicable foreign jurisprudence. In resolving the case at
bar, the lessons of our own history should provide us the light
and not the experience of foreigners.157 (Italics in the original
emphasis and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the
instant petitions. Here, the third parties alleging the violation
of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely
on Nixon v. US158 as basis for arguing that this Court may
not decide on the constitutionality of Sections 16 and 17 of the
House Impeachment Rules. As already observed, the U.S.
Federal Constitution simply provides that "the House of
Representatives shall have the sole power of impeachment." It
adds nothing more. It gives no clue whatsoever as to how this
"sole power" is to be exercised. No limitation whatsoever is
given. Thus, the US Supreme Court concluded that there was a
textually demonstrable constitutional commitment of a
constitutional power to the House of Representatives. This
reasoning does not hold with regard to impeachment power of
the Philippine House of Representatives since our
Constitution, as earlier enumerated, furnishes several
provisions articulating how that "exclusive power" is to be
exercised.
The provisions of Sections 16 and 17 of Rule V of the House
Impeachment Rules which state that impeachment
proceedings are deemed initiated (1) if there is a finding by the
House Committee on Justice that the verified complaint and/or
resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on
Justice that the verified complaint and/or resolution is not
sufficient in substance or (3) by the filing or endorsement
before the Secretary-General of the House of Representatives
of a verified complaint or a resolution of impeachment by at
least 1/3 of the members of the House thus clearly contravene
Section 3 (5) of Article XI as they give the term "initiate" a
meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of
filing of the impeachment complaint and referral to the House
Committee on Justice, the initial action taken thereon, the
meaning of Section 3 (5) of Article XI becomes clear. Once an
impeachment complaint has been initiated in the foregoing
manner, another may not be filed against the same official
within a one year period following Article XI, Section 3(5) of
the Constitution.
In fine, considering that the first impeachment complaint, was
filed by former President Estrada against Chief Justice Hilario
G. Davide, Jr., along with seven associate justices of this
Court, on June 2, 2003 and referred to the House Committee
on Justice on August 5, 2003, the second impeachment
complaint filed by Representatives Gilberto C. Teodoro, Jr.
and Felix William Fuentebella against the Chief Justice on
October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the
same impeachable officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there
is always a phenomenon that takes the center stage of our
individual and collective consciousness as a people with our
characteristic flair for human drama, conflict or tragedy. Of
course this is not to demean the seriousness of the controversy
over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and
emotionally exhausting experience. Both sides have fought
bitterly a dialectical struggle to articulate what they
respectively believe to be the correct position or view on the
issues involved. Passions had ran high as demonstrators,
whether for or against the impeachment of the Chief Justice,
took to the streets armed with their familiar slogans and chants
to air their voice on the matter. Various sectors of society -
from the business, retired military, to the academe and
denominations of faith – offered suggestions for a return to a
state of normalcy in the official relations of the governmental
branches affected to obviate any perceived resulting instability
upon areas of national life.
Through all these and as early as the time when the Articles of
Impeachment had been constituted, this Court was specifically
asked, told, urged and argued to take no action of any kind and
form with respect to the prosecution by the House of
Representatives of the impeachment complaint against the
subject respondent public official. When the present petitions
were knocking so to speak at the doorsteps of this Court, the
same clamor for non-interference was made through what are
now the arguments of "lack of jurisdiction," "non-
justiciability," and "judicial self-restraint" aimed at halting the
Court from any move that may have a bearing on the
impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as
far as the question of the constitutionality of initiating the
impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the
Court found the existence in full of all the requisite conditions
for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called
for the construction or interpretation of a provision of the
fundamental law of the land. What lies in here is an issue of a
genuine constitutional material which only this Court can
properly and competently address and adjudicate in
accordance with the clear-cut allocation of powers under our
system of government. Face-to-face thus with a matter or
problem that squarely falls under the Court's jurisdiction, no
other course of action can be had but for it to pass upon that
problem head on.
The claim, therefore, that this Court by judicially entangling
itself with the process of impeachment has effectively set up a
regime of judicial supremacy, is patently without basis in fact
and in law.
This Court in the present petitions subjected to judicial
scrutiny and resolved on the merits only the main issue of
whether the impeachment proceedings initiated against the
Chief Justice transgressed the constitutionally imposed one-
year time bar rule. Beyond this, it did not go about assuming
jurisdiction where it had none, nor indiscriminately turn
justiciable issues out of decidedly political questions. Because
it is not at all the business of this Court to assert judicial
dominance over the other two great branches of the
government. Rather, the raison d'etre of the judiciary is to
complement the discharge by the executive and legislative of
their own powers to bring about ultimately the beneficent
effects of having founded and ordered our society upon the
rule of law.
It is suggested that by our taking cognizance of the issue of
constitutionality of the impeachment proceedings against the
Chief Justice, the members of this Court have actually closed
ranks to protect a brethren. That the members' interests in
ruling on said issue is as much at stake as is that of the Chief
Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all
other courts has long held and been entrusted with the judicial
power to resolve conflicting legal rights regardless of the
personalities involved in the suits or actions. This Court has
dispensed justice over the course of time, unaffected by
whomsoever stood to benefit or suffer therefrom, unfraid by
whatever imputations or speculations could be made to it, so
long as it rendered judgment according to the law and the
facts. Why can it not now be trusted to wield judicial power in
these petitions just because it is the highest ranking magistrate
who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government
branch's official act as tested by the limits set by the
Constitution? Of course, there are rules on the inhibition of
any member of the judiciary from taking part in a case in
specified instances. But to disqualify this entire institution
now from the suit at bar is to regard the Supreme Court as
likely incapable of impartiality when one of its members is a
party to a case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic
precept in any legal system which recognizes equality of all
men before the law as essential to the law's moral authority
and that of its agents to secure respect for and obedience to its
commands. Perhaps, there is no other government branch or
instrumentality that is most zealous in protecting that principle
of legal equality other than the Supreme Court which has
discerned its real meaning and ramifications through its
application to numerous cases especially of the high-profile
kind in the annals of jurisprudence. The Chief Justice is not
above the law and neither is any other member of this Court.
But just because he is the Chief Justice does not imply that he
gets to have less in law than anybody else. The law is
solicitous of every individual's rights irrespective of his station
in life.
The Filipino nation and its democratic institutions have no
doubt been put to test once again by this impeachment case
against Chief Justice Hilario Davide. Accordingly, this Court
has resorted to no other than the Constitution in search for a
solution to what many feared would ripen to a crisis in
government. But though it is indeed immensely a blessing for
this Court to have found answers in our bedrock of legal
principles, it is equally important that it went through this
crucible of a democratic process, if only to discover that it can
resolve differences without the use of force and aggression
upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of
Procedure in Impeachment Proceedings which were approved
by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment
complaint against Chief Justice Hilario G. Davide, Jr. which
was filed by Representatives Gilberto C. Teodoro, Jr. and
Felix William B. Fuentebella with the Office of the Secretary
General of the House of Representatives on October 23, 2003
is barred under paragraph 5, section 3 of Article XI of the
Constitution.
SO ORDERED.
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and
CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform;
CARLOS DOMINGUEZ, as Secretary of Agriculture;
LOURDES QUISUMBING, as Secretary of Education,
Culture and Sports; FULGENCIO FACTORAN, JR., as
Secretary of Environment and Natural Resources; VICENTE
V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ,
as Secretary of Justice; FRANKLIN N. DRILON, as Secretary
of Labor and Employment; LUIS SANTOS, as Secretary of
Local Government; FIDEL V. RAMOS, as Secretary of
National Defense; TEODORO F. BENIGNO, as Press
Secretary; JUANITO FERRER, as Secretary of Public Works
and Highways; ANTONIO ARRIZABAL, as Secretary of
Science and Technology; JOSE CONCEPCION, as Secretary
of Trade and Industry; JOSE ANTONIO GONZALEZ, as
Secretary of Tourism; ALFREDO R.A. BENGZON, as
Secretary of Health; REINERIO D. REYES, as Secretary of
Transportation and Communication; GUILLERMO
CARAGUE, as Commissioner of the Budget; and SOLITA
MONSOD, as Head of the National Economic Development
Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and
Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated
August 9, 19881 and are being resolved jointly as both seek a
declaration of the unconstitutionality of Executive Order No.
284 issued by President Corazon C. Aquino on July 25, 1987.
The pertinent provisions of the assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of
his position, a member of the Cabinet, undersecretary or
assistant secretary or other appointive officials of the
Executive Department may, in addition to his primary
position, hold not more than two positions in the government
and government corporations and receive the corresponding
compensation therefor; Provided, that this limitation shall not
apply to ad hoc bodies or committees, or to boards, councils or
bodies of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant
secretary or other appointive official of the Executive
Department holds more positions than what is allowed in
Section 1 hereof, they (sic) must relinquish the excess position
in favor of the subordinate official who is next in rank, but in
no case shall any official hold more than two positions other
than his primary position.
Sec. 3. In order to fully protect the interest of the government
in government-owned or controlled corporations, at least one-
third (1/3) of the members of the boards of such corporation
should either be a secretary, or undersecretary, or assistant
secretary.
Petitioners maintain that this Executive Order which, in effect,
allows members of the Cabinet, their undersecretaries and
assistant secretaries to hold other government offices or
positions in addition to their primary positions, albeit subject
to the limitation therein imposed, runs counter to Section 13,
Article VII of the 1987 Constitution,2 which provides as
follows:
Sec. 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office
or employment during their tenure. They shall not, during said
tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted
by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII
prohibits public respondents, as members of the Cabinet,
along with the other public officials enumerated in the list
attached to the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding
any other office or employment during their tenure. In
addition to seeking a declaration of the unconstitutionality of
Executive Order No. 284, petitioner Anti-Graft League of the
Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a
temporary restraining order directing public respondents
therein to cease and desist from holding, in addition to their
primary positions, dual or multiple positions other than those
authorized by the 1987 Constitution and from receiving any
salaries, allowances, per diems and other forms of privileges
and the like appurtenant to their questioned positions, and
compelling public respondents to return, reimburse or refund
any and all amounts or benefits that they may have received
from such positions.
Specifically, petitioner Anti-Graft League of the Philippines
charges that notwithstanding the aforequoted "absolute and
self-executing" provision of the 1987 Constitution, then
Secretary of Justice Sedfrey Ordoñez, construing Section 13,
Article VII in relation to Section 7, par. (2), Article IX-B,
rendered on July 23, 1987 Opinion No. 73, series of
1987,5 declaring that Cabinet members, their deputies
(undersecretaries) and assistant secretaries may hold other
public office, including membership in the boards of
government corporations: (a) when directly provided for in the
Constitution as in the case of the Secretary of Justice who is
made an ex-officio member of the Judicial and Bar Council
under Section 8, paragraph 1, Article VIII; or (b) if allowed by
law; or (c) if allowed by the primary functions of their
respective positions; and that on the basis of this Opinion, the
President of the Philippines, on July 25, 1987 or two (2) days
before Congress convened on July 27, 1987: promulgated
Executive Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to both
DOJ Opinion No. 73 and Executive Order No. 284 as they
allegedly "lumped together" Section 13, Article VII and the
general provision in another article, Section 7, par. (2), Article
I-XB. This "strained linkage" between the two provisions,
each addressed to a distinct and separate group of public
officers –– one, the President and her official family, and the
other, public servants in general –– allegedly "abolished the
clearly separate, higher, exclusive, and mandatory
constitutional rank assigned to the prohibition against multiple
jobs for the President, the Vice-President, the members of the
Cabinet, and their deputies and subalterns, who are the leaders
of government expected to lead by example."7 Article IX-B,
Section 7, par. (2)8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other
office or employment in the government or any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ
Opinion No. 73, series of 1987, as further elucidated and
clarified by DOJ Opinion No. 129, series of 19879 and DOJ
Opinion No. 155, series of 1988,10 being the first official
construction and interpretation by the Secretary of Justice of
Section 13, Article VII and par. (2) of Section 7, Article I-XB
of the Constitution, involving the same subject of
appointments or designations of an appointive executive
official to positions other than his primary position, is
"reasonably valid and constitutionally firm," and that
Executive Order No. 284, promulgated pursuant to DOJ
Opinion No. 73, series of 1987 is consequently constitutional.
It is worth noting that DOJ Opinion No. 129, series of 1987
and DOJ Opinion No. 155, series of 1988 construed the
limitation imposed by E.O. No. 284 as not applying to ex-
officio positions or to positions which, although not so
designated as ex-officio are allowed by the primary functions
of the public official, but only to the holding of multiple
positions which are not related to or necessarily included in
the position of the public official concerned (disparate
positions).
In sum, the constitutionality of Executive Order No. 284 is
being challenged by petitioners on the principal submission
that it adds exceptions to Section 13, Article VII other than
those provided in the Constitution. According to petitioners,
by virtue of the phrase "unless otherwise provided in this
Constitution," the only exceptions against holding any other
office or employment in Government are those provided in the
Constitution, namely: (1) The Vice-President may be
appointed as a Member of the Cabinet under Section 3, par.
(2), Article VII thereof; and (2) the Secretary of Justice is
an ex-officio member of the Judicial and Bar Council by
virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition
in Section 7, par. (2), Article I-XB on the Civil Service
Commission applies to officers and employees of the Civil
Service in general and that said exceptions do not apply and
cannot be extended to Section 13, Article VII which applies
specifically to the President, Vice-President, Members of the
Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President,
Vice-President, the members of the Cabinet and their deputies
or assistants from holding dual or multiple positions in the
Government admits of certain exceptions. The disagreement
between petitioners and public respondents lies on the
constitutional basis of the exception. Petitioners insist that
because of the phrase "unless otherwise provided in this
Constitution" used in Section 13 of Article VII, the exception
must be expressly provided in the Constitution, as in the case
of the Vice-President being allowed to become a Member of
the Cabinet under the second paragraph of Section 3, Article
VII or the Secretary of Justice being designated an ex-
officio member of the Judicial and Bar Council under Article
VIII, Sec. 8 (1). Public respondents, on the other hand,
maintain that the phrase "unless otherwise provided in the
Constitution" in Section 13, Article VII makes reference to
Section 7, par. (2), Article I-XB insofar as the appointive
officials mentioned therein are concerned.
The threshold question therefore is: does the prohibition in
Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned
admit of the broad exceptions made for appointive officials in
general under Section 7, par. (2), Article I-XB which, for easy
reference is quoted anew, thus: "Unless otherwise allowed by
law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled
corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the
intention underlying the provision under consideration. Thus,
it has been held that the Court in construing a Constitution
should bear in mind the object sought to be accomplished by
its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light
of the history of the times, and the condition and
circumstances under which the Constitution was framed. The
object is to ascertain the reason which induced the framers of
the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to
construe the whole as to make the words consonant to that
reason and calculated to effect that purpose.11
The practice of designating members of the Cabinet, their
deputies and assistants as members of the governing bodies or
boards of various government agencies and instrumentalities,
including government-owned and controlled corporations,
became prevalent during the time legislative powers in this
country were exercised by former President Ferdinand E.
Marcos pursuant to his martial law authority. There was a
proliferation of newly-created agencies, instrumentalities and
government-owned and controlled corporations created by
presidential decrees and other modes of presidential issuances
where Cabinet members, their deputies or assistants were
designated to head or sit as members of the board with the
corresponding salaries, emoluments, per diems, allowances
and other perquisites of office. Most of these instrumentalities
have remained up to the present time.
This practice of holding multiple offices or positions in the
government soon led to abuses by unscrupulous public
officials who took advantage of this scheme for purposes of
self-enrichment. In fact, the holding of multiple offices in
government was strongly denounced on the floor of the
Batasang Pambansa.12 This condemnation came in reaction to
the published report of the Commission on Audit, entitled
"1983 Summary Annual Audit Report on: Government-
Owned and Controlled Corporations, Self-Governing Boards
and Commissions" which carried as its Figure No. 4 a
"Roaster of Membership in Governing Boards of Government-
Owned and Controlled Corporations as of December 31,
1983."
Particularly odious and revolting to the people's sense of
propriety and morality in government service were the data
contained therein that Roberto V. Ongpin was a member of the
governing boards of twenty-nine (29) governmental agencies,
instrumentalities and corporations; Imelda R. Marcos of
twenty-three (23); Cesar E.A. Virata of twenty-two (22);
Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and
Geronimo Z. Velasco, of fourteen each (14); Cesar C.
Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño
of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro,
and Edgardo Tordesillas of eleven (11) each; and Lilia
Bautista and Teodoro Q. Peña of ten (10) each.13
The blatant betrayal of public trust evolved into one of the
serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the
overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the
people successfully unseated former President Marcos, should
draft into its proposed Constitution the provisions under
consideration which are envisioned to remedy, if not correct,
the evils that flow from the holding of multiple governmental
offices and employment. In fact, as keenly observed by Mr.
Justice Isagani A. Cruz during the deliberations in these cases,
one of the strongest selling points of the 1987 Constitution
during the campaign for its ratification was the assurance
given by its proponents that the scandalous practice of Cabinet
members holding multiple positions in the government and
collecting unconscionably excessive compensation therefrom
would be discontinued.
But what is indeed significant is the fact that although Section
7, Article I-XB already contains a blanket prohibition against
the holding of multiple offices or employment in the
government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to
formulate another provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other
office or employment during their tenure, unless otherwise
provided in the Constitution itself.
Evidently, from this move as well as in the different
phraseologies of the constitutional provisions in question, the
intent of the framers of the Constitution was to impose a
stricter prohibition on the President and his official family in
so far as holding other offices or employment in the
government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of
Section 13, Article VII with other provisions of the
Constitution on the disqualifications of certain public officials
or employees from holding other offices or employment.
Under Section 13, Article VI, "(N)o Senator or Member of the
House of Representatives may hold any other office or
employment in the Government . . .". Under Section 5(4),
Article XVI, "(N)o member of the armed forces in the active
service shall, at any time, be appointed in any capacity to a
civilian position in the Government,including government-
owned or controlled corporations or any of their subsidiaries."
Even Section 7 (2), Article IX-B, relied upon by respondents
provides "(U)nless otherwise allowed by law or by the
primary functions of his position, no appointive official shall
hold any other office or employment in the Government."
It is quite notable that in all these provisions on
disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the
government and government-owned or controlled corporations
or their subsidiaries. In striking contrast is the wording of
Section 13, Article VII which states that "(T)he President,
Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during
their tenure." In the latter provision, the disqualification is
absolute, not being qualified by the phrase "in the
Government." The prohibition imposed on the President and
his official family is therefore all-embracing and covers both
public and private office or employment.
Going further into Section 13, Article VII, the second sentence
provides: "They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in
any franchise, or special privilege granted by the Government
or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or
their subsidiaries." These sweeping, all-embracing
prohibitions imposed on the President and his official family,
which prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress,
members of the civil service in general and members of the
armed forces, are proof of the intent of the 1987 Constitution
to treat the President and his official family as a class by itself
and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be
stricter with the President and his official family was also
succinctly articulated by Commissioner Vicente Foz after
Commissioner Regalado Maambong noted during the floor
deliberations and debate that there was no symmetry between
the Civil Service prohibitions, originally found in the General
Provisions and the anticipated report on the Executive
Department. Commissioner Foz Commented, "We actually
have to be stricter with the President and the members of the
Cabinet because they exercise more powers and, therefore,
more cheeks and restraints on them are called for because
there is more possibility of abuse in their case."14
Thus, while all other appointive officials in the civil service
are allowed to hold other office or employment in the
government during their tenure when such is allowed by law
or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In other words,
Section 7, Article I-XB is meant to lay down the general rule
applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice- President,
Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise
provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided under
Section 7, Article I-XB of the 1987 Constitution. To construe
said qualifying phrase as respondents would have us do,
would render nugatory and meaningless the manifest intent
and purpose of the framers of the Constitution to impose a
stricter prohibition on the President, Vice-President, Members
of the Cabinet, their deputies and assistants with respect to
holding other offices or employment in the government during
their tenure. Respondents' interpretation that Section 13 of
Article VII admits of the exceptions found in Section 7, par.
(2) of Article IX-B would obliterate the distinction so
carefully set by the framers of the Constitution as to when the
high-ranking officials of the Executive Branch from the
President to Assistant Secretary, on the one hand, and the
generality of civil servants from the rank immediately below
Assistant Secretary downwards, on the other, may hold any
other office or position in the government during their tenure.
Moreover, respondents' reading of the provisions in question
would render certain parts of the Constitution inoperative.
This observation applies particularly to the Vice-President
who, under Section 13 of Article VII is allowed to hold other
office or employment when so authorized by the Constitution,
but who as an elective public official under Sec. 7, par. (1) of
Article I-XB is absolutely ineligible "for appointment or
designation in any capacity to any public office or position
during his tenure." Surely, to say that the phrase "unless
otherwise provided in this Constitution" found in Section 13,
Article VII has reference to Section 7, par. (1) of Article I-XB
would render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a
member of the Cabinet,15 and to act as President without
relinquishing the Vice-Presidency where the President shall
not nave been chosen or fails to qualify.16 Such absurd
consequence can be avoided only by interpreting the two
provisions under consideration as one, i.e., Section 7, par. (1)
of Article I-XB providing the general rule and the other, i.e.,
Section 13, Article VII as constituting the exception thereto. In
the same manner must Section 7, par. (2) of Article I-XB be
construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that
no one provision of the Constitution is to be separated from all
the others, to be considered alone, but that all the provisions
bearing upon a particular subject are to be brought into view
and to be so interpreted as to effectuate the great purposes of
the instrument.17 Sections bearing on a particular subject
should be considered and interpreted together as to effectuate
the whole purpose of the Constitution18 and one section is not
to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.19
In other words, the court must harmonize them, if practicable,
and must lean in favor of a construction which will render
every word operative, rather than one which may make the
words idle and nugatory.20
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their
deputies and assistants with respect to holding multiple offices
or employment in the government during their tenure, the
exception to this prohibition must be read with equal severity.
On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding
multiple government offices or employment. Verily, wherever
the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal
negation.21 The phrase "unless otherwise provided in this
Constitution" must be given a literal interpretation to refer
only to those particular instances cited in the Constitution
itself, to wit: the Vice-President being appointed as a member
of the Cabinet under Section 3, par. (2), Article VII; or acting
as President in those instances provided under Section 7, pars.
(2) and (3), Article VII; and, the Secretary of Justice being ex-
officiomember of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the Constitution
must not, however, be construed as applying to posts occupied
by the Executive officials specified therein without additional
compensation in an ex-officio capacity as provided by law and
as required22 by the primary functions of said officials' office.
The reason is that these posts do no comprise "any other
office" within the contemplation of the constitutional
prohibition but are properly an imposition of additional duties
and functions on said officials.23 To characterize these posts
otherwise would lead to absurd consequences, among which
are: The President of the Philippines cannot chair the National
Security Council reorganized under Executive Order No. 115
(December 24, 1986). Neither can the Vice-President, the
Executive Secretary, and the Secretaries of National Defense,
Justice, Labor and Employment and Local Government sit in
this Council, which would then have no reason to exist for
lack of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be
prohibited.
The Secretary of Labor and Employment cannot chair the
Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment
Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither can
his Undersecretaries and Assistant Secretaries chair these
agencies.
The Secretaries of Finance and Budget cannot sit in the
Monetary Board.24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank
Governor would then be assisted by lower ranking employees
in providing policy direction in the areas of money, banking
and credit.25
Indeed, the framers of our Constitution could not have
intended such absurd consequences. A Constitution, viewed as
a continuously operative charter of government, is not to be
interpreted as demanding the impossible or the impracticable;
and unreasonable or absurd consequences, if possible, should
be avoided.26
To reiterate, the prohibition under Section 13, Article VII is
not to be interpreted as covering positions held without
additional compensation in ex-officio capacities as provided
by law and as required by the primary functions of the
concerned official's office. The term ex-officio means "from
office; by virtue of office." It refers to an "authority derived
from official character merely, not expressly conferred upon
the individual character, but rather annexed to the official
position." Ex-officio likewise denotes an "act done in an
official character, or as a consequence of office, and without
any other appointment or authority than that conferred by the
office."27 An ex-officio member of a board is one who is a
member by virtue of his title to a certain office, and without
further warrant or appointment.28 To illustrate, by express
provision of law, the Secretary of Transportation and
Communications is the ex-officioChairman of the Board of the
Philippine Ports Authority,29 and the Light Rail Transit
Authority.30
The Court had occasion to explain the meaning of an ex-
officio position in Rafael vs. Embroidery and Apparel Control
and Inspection Board,31 thus: "An examination of section 2 of
the questioned statute (R.A. 3137) reveals that for the
chairman and members of the Board to qualify they need only
be designated by the respective department heads. With the
exception of the representative from the private sector, they
sit ex-officio. In order to be designated they must already be
holding positions in the offices mentioned in the law. Thus,
for instance, one who does not hold a previous appointment in
the Bureau of Customs, cannot, under the act, be designated a
representative from that office. The same is true with respect
to the representatives from the other offices. No new
appointments are necessary. This is as it should be, because
the representatives so designated merely perform duties in the
Board in addition to those already performed under their
original appointments."32
The term "primary" used to describe "functions" refers to the
order of importance and thus means chief or principal
function. The term is not restricted to the singular but may
refer to the plural.33 The additional duties must not only be
closely related to, but must be required by the official's
primary functions. Examples of designations to positions by
virtue of one's primary functions are the Secretaries of Finance
and Budget sitting as members of the Monetary Board, and the
Secretary of Transportation and Communications acting as
Chairman of the Maritime Industry Authority34 and the Civil
Aeronautics Board.
If the functions required to be performed are merely
incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official,
such additional functions would fall under the purview of "any
other office" prohibited by the Constitution. An example
would be the Press Undersecretary sitting as a member of the
Board of the Philippine Amusement and Gaming Corporation.
The same rule applies to such positions which confer on the
cabinet official management functions and/or monetary
compensation, such as but not limited to chairmanships or
directorships in government-owned or controlled corporations
and their subsidiaries.
Mandating additional duties and functions to the President,
Vice-President, Cabinet Members, their deputies or assistants
which are not inconsistent with those already prescribed by
their offices or appointments by virtue of their special
knowledge, expertise and skill in their respective executive
offices is a practice long-recognized in many jurisdictions. It
is a practice justified by the demands of efficiency, policy
direction, continuity and coordination among the different
offices in the Executive Branch in the discharge of its
multifarious tasks of executing and implementing laws
affecting national interest and general welfare and delivering
basic services to the people. It is consistent with the power
vested on the President and his alter egos, the Cabinet
members, to have control of all the executive departments,
bureaus and offices and to ensure that the laws are faithfully
executed.35 Without these additional duties and functions
being assigned to the President and his official family to sit in
the governing bodies or boards of governmental agencies or
instrumentalities in an ex-officio capacity as provided by law
and as required by their primary functions, they would be
supervision, thereby deprived of the means for control and
resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional
duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987 Constitution,
such additional duties or functions must be required by the
primary functions of the official concerned, who is to perform
the same in an ex-officio capacity as provided by law, without
receiving any additional compensation therefor.
The ex-officio position being actually and in legal
contemplation part of the principal office, it follows that the
official concerned has no right to receive additional
compensation for his services in the said position. The reason
is that these services are already paid for and covered by the
compensation attached to his principal office. It should be
obvious that if, say, the Secretary of Finance attends a meeting
of the Monetary Board as an ex-officio member thereof, he is
actually and in legal contemplation performing the primary
function of his principal office in defining policy in monetary
and banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled
to collect any extra compensation, whether it be in the form of
a per them or an honorarium or an allowance, or some other
such euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on
the proposal of Commissioner Christian Monsod to add to
Section 7, par. (2), Article IX-B, originally found as Section 3
of the General Provisions, the exception "unless required by
the functions of his position,"36 express reference to certain
high-ranking appointive public officials like members of the
Cabinet were made.37 Responding to a query of
Commissioner Blas Ople, Commissioner Monsod pointed out
that there are instances when although not required by current
law, membership of certain high-ranking executive officials
in other offices and corporations is necessary by reason of said
officials' primary functions. The example given by
Commissioner Monsod was the Minister of Trade and
Industry.38
While this exchange between Commissioners Monsod and
Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of the
official may be imposed upon him without offending the
constitutional prohibition under consideration, it cannot,
however, be taken as authority for saying that this exception is
by virtue of Section 7, par. (2) of Article I-XB. This colloquy
between the two Commissioners took place in the plenary
session of September 27, 1986. Under consideration then was
Section 3 of Committee Resolution No. 531 which was the
proposed article on General Provisions.39 At that time, the
article on the Civil Service Commission had been approved on
third reading on July 22, 1986,40 while the article on the
Executive Department, containing the more specific
prohibition in Section 13, had also been earlier approved on
third reading on August 26, 1986.41 It was only after the draft
Constitution had undergone reformatting and "styling" by the
Committee on Style that said Section 3 of the General
Provisions became Section 7, par. (2) of Article IX-B and
reworded "Unless otherwise allowed by law or by the primary
functions of his position. . . ."
What was clearly being discussed then were general principles
which would serve as constitutional guidelines in the absence
of specific constitutional provisions on the matter. What was
primarily at issue and approved on that occasion was the
adoption of the qualified and delimited phrase "primary
functions" as the basis of an exception to the general rule
covering all appointive public officials. Had the Constitutional
Commission intended to dilute the specific prohibition in said
Section 13 of Article VII, it could have re-worded said Section
13 to conform to the wider exceptions provided in then
Section 3 of the proposed general Provisions, later placed as
Section 7, par. (2) of Article IX-B on the Civil Service
Commission.
That this exception would in the final analysis apply also to
the President and his official family is by reason of the legal
principles governing additional functions and duties of public
officials rather than by virtue of Section 7, par. 2, Article IX-B
At any rate, we have made it clear that only the additional
functions and duties "required," as opposed to "allowed," by
the primary functions may be considered as not constituting
"any other office."
While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other
guides fail42 as said proceedings are powerless to vary the
terms of the Constitution when the meaning is
clear.1âwphi1Debates in the constitutional convention "are of
value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no light
as to the views of the large majority who did not talk, much
less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears upon its
face."43 The proper interpretation therefore depends more on
how it was understood by the people adopting it than in the
framers's understanding thereof.44
It being clear, as it was in fact one of its best selling points,
that the 1987 Constitution seeks to prohibit the President,
Vice-President, members of the Cabinet, their deputies or
assistants from holding during their tenure multiple offices or and Natural Resources Fulgencio Factoran, Jr., Secretary of
employment in the government, except in those cases Local Government45 Luis Santos, Secretary of National
specified in the Constitution itself and as above clarified with Defense Fidel V. Ramos, Secretary of Health Alfredo R.A.
respect to posts held without additional compensation in Bengzon and Secretary of the Budget Guillermo Carague to
an ex-officio capacity as provided by law and as required by immediately relinquish their other offices or employment, as
the primary functions of their office, the citation of Cabinet herein defined, in the government, including government-
members (then called Ministers) as examples during the owned or controlled corporations and their subsidiaries. With
debate and deliberation on the general rule laid down for all respect to the other named respondents, the petitions have
appointive officials should be considered as mere personal become moot and academic as they are no longer occupying
opinions which cannot override the constitution's manifest the positions complained of.
intent and the people' understanding thereof.
During their tenure in the questioned positions, respondents
In the light of the construction given to Section 13, Article VII may be considered de facto officers and as such entitled to
in relation to Section 7, par. (2), Article IX-B of the 1987 emoluments for actual services rendered.46 It has been held
Constitution, Executive Order No. 284 dated July 23, 1987 is that "in cases where there is no de jure,officer, a de
unconstitutional. Ostensibly restricting the number of facto officer, who, in good faith has had possession of the
positions that Cabinet members, undersecretaries or assistant office and has discharged the duties pertaining thereto, is
secretaries may hold in addition to their primary position to legally entitled to the emoluments of the office, and may in an
not more than two (2) positions in the government and appropriate action recover the salary, fees and other
government corporations, Executive Order No. 284 actually compensations attached to the office. This doctrine is,
allows them to hold multiple offices or employment in direct undoubtedly, supported on equitable grounds since it seems
contravention of the express mandate of Section 13, Article unjust that the public should benefit by the services of an
VII of the 1987 Constitution prohibiting them from doing so, officer de facto and then be freed from all liability to pay any
unless otherwise provided in the 1987 Constitution itself. one for such services.47 Any per diem, allowances or other
emoluments received by the respondents by virtue of actual
The Court is alerted by respondents to the impractical services rendered in the questioned positions may therefore be
consequences that will result from a strict application of the retained by them.
prohibition mandated under Section 13, Article VII on the
operations of the Government, considering that Cabinet WHEREFORE, subject to the qualification above-stated, the
members would be stripped of their offices held in an ex- petitions are GRANTED. Executive Order No. 284 is hereby
officio capacity, by reason of their primary positions or by declared null and void and is accordingly set aside.
virtue of legislation. As earlier clarified in this decision, ex-
officio posts held by the executive official concerned without SO ORDERED.
additional compensation as provided by law and as required
by the primary functions of his office do not fall under the
definition of "any other office" within the contemplation of the
constitutional prohibition. With respect to other offices or
employment held by virtue of legislation, including
chairmanships or directorships in government-owned or
controlled corporations and their subsidiaries, suffice it to say
that the feared impractical consequences are more apparent
than real. Being head of an executive department is no mean
job. It is more than a full-time job, requiring full attention,
specialized knowledge, skills and expertise. If maximum
benefits are to be derived from a department head's ability and
expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental
offices or employment. He should be precluded from
dissipating his efforts, attention and energy among too many
positions of responsibility, which may result in haphazardness
and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise,
particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and
taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm,

the court hereby orders respondents Secretary of Environment
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM,
MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987
Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the
State shall give preference to qualified Filipinos,1 is in oked
by petitioner in its bid to acquire 51% of the shares of the
Manila Hotel Corporation (MHC) which owns the historic
Manila Hotel. Opposing, respondents maintain that the
provision is not self-executing but requires an implementing
legislation for its enforcement. Corollarily, they ask whether
the 51% shares form part of the national economy and
patrimony covered by the protective mantle of the
Constitution.
The controversy arose when respondent Government Service
Insurance System (GSIS), pursuant to the privatization
program of the Philippine Government under Proclamation
No. 50 dated 8 December 1986, decided to sell through public
bidding 30% to 51% of the issued and outstanding shares of
respondent MHC. The winning bidder, or the eventual
"strategic partner," is to provide management expertise and/or
an international marketing/reservation system, and financial
support to strengthen the profitability and performance of the
Manila Hotel.2 In a close bidding held on 18 September 1995
only two (2) bidders participated: petitioner Manila Prince
Hotel Corporation, a Filipino corporation, which offered to
buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-
Sheraton as its hotel operator, which bid for the same number
of shares at P44.00 per share, or P2.42 more than the bid of
petitioner.
Pertinent provisions of the bidding rules prepared by
respondent GSIS state —
I. EXECUTION OF THE NECESSARY CONTRACTS
WITH GSIS/MHC —
1. The Highest Bidder must comply with the conditions set
forth below by October 23, 1995 (reset to November 3, 1995)
or the Highest Bidder will lose the right to purchase the Block
of Shares and GSIS will instead offer the Block of Shares to
the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the
GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of
contract specified by the Highest Bidder in its strategic plan
for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and
Sale Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING
BIDDER/STRATEGIC PARTNER —
The Highest Bidder will be declared the Winning
Bidder/Strategic Partner after the following conditions are
met:
a. Execution of the necessary contracts with GSIS/MHC not
later than October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP
(Committee on Privatization)/OGCC (Office of the
Government Corporate Counsel) are obtained.3
Pending the declaration of Renong Berhad as the winning
bidder/strategic partner and the execution of the necessary
contracts, petitioner in a letter to respondent GSIS dated 28
September 1995 matched the bid price of P44.00 per share
tendered by Renong Berhad.4 In a subsequent letter dated 10
October 1995 petitioner sent a manager's check issued by
Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the
Malaysian Group, Messrs. Renong Berhad . . .5 which
respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent
GSIS has disregarded the tender of the matching bid and that
the sale of 51% of the MHC may be hastened by respondent
GSIS and consummated with Renong Berhad, petitioner came
to this Court on prohibition and mandamus. On 18 October
1995 the Court issued a temporary restraining order enjoining
respondents from perfecting and consummating the sale to the
Malaysian firm.
On 10 September 1996 the instant case was accepted by the
Court En Banc after it was referred to it by the First Division.
The case was then set for oral arguments with former Chief
Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J.,
as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII,
of the 1987 Constitution and submits that the Manila Hotel has
been identified with the Filipino nation and has practically
become a historical monument which reflects the vibrancy of
Philippine heritage and culture. It is a proud legacy of an
earlier generation of Filipinos who believed in the nobility and
sacredness of independence and its power and capacity to
release the full potential of the Filipino people. To all intents
and purposes, it has become a part of the national
patrimony.6 Petitioner also argues that since 51% of the shares
of the MHC carries with it the ownership of the business of
the hotel which is owned by respondent GSIS, a government-
owned and controlled corporation, the hotel business of
respondent GSIS being a part of the tourism industry is
unquestionably a part of the national economy. Thus, any
transaction involving 51% of the shares of stock of the MHC
is clearly covered by the term national economy, to which Sec.
10, second par., Art. XII, 1987 Constitution, applies.7
It is also the thesis of petitioner that since Manila Hotel is part
of the national patrimony and its business also unquestionably
part of the national economy petitioner should be preferred
after it has matched the bid offer of the Malaysian firm. For
the bidding rules mandate that if for any reason, the Highest
Bidder cannot be awarded the Block of Shares, GSIS may
offer this to the other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share.8
Respondents except. They maintain that: First, Sec. 10, second
par., Art. XII, of the 1987 Constitution is merely a statement
of principle and policy since it is not a self-executing
provision and requires implementing legislation(s) . . . Thus,
for the said provision to Operate, there must be existing laws
"to lay down conditions under which business may be done."9
Second, granting that this provision is self-executing, Manila
Hotel does not fall under the term national patrimony which
only refers to lands of the public domain, waters, minerals,
coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna
and all marine wealth in its territorial sea, and exclusive
marine zone as cited in the first and second paragraphs of Sec.
2, Art. XII, 1987 Constitution. According to respondents,
while petitioner speaks of the guests who have slept in the
hotel and the events that have transpired therein which make
the hotel historic, these alone do not make the hotel fall under
the patrimony of the nation. What is more, the mandate of the
Constitution is addressed to the State, not to respondent GSIS
which possesses a personality of its own separate and distinct
from the Philippines as a State.
Third, granting that the Manila Hotel forms part of
the national patrimony, the constitutional provision invoked is
still inapplicable since what is being sold is only 51% of the
outstanding shares of the corporation, not the hotel building
nor the land upon which the building stands. Certainly, 51% of
the equity of the MHC cannot be considered part of
the national patrimony. Moreover, if the disposition of the
shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning
and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of
the bidding rules which provides that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS
may offer this to the other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share, is
misplaced. Respondents postulate that the privilege of
submitting a matching bid has not yet arisen since it only takes
place if for any reason, the Highest Bidder cannot be awarded
the Block of Shares. Thus the submission by petitioner of a
matching bid is premature since Renong Berhad could still
very well be awarded the block of shares and the condition
giving rise to the exercise of the privilege to submit a
matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of
discretion should fail since respondent GSIS did not exercise
its discretion in a capricious, whimsical manner, and if ever it
did abuse its discretion it was not so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law. Similarly, the petition
for mandamus should fail as petitioner has no clear legal right
to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental
laws for the governance and administration of a nation. It is
supreme, imperious, absolute and unalterable except by the
authority from which it emanates. It has been defined as
the fundamental and paramount law of the nation. 10 It
prescribes the permanent framework of a system of
government, assigns to the different departments their
respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental
conception in other words is that it is a supreme law to which
all other laws must conform and in accordance with which all
private rights must be determined and all public authority
administered. 11 Under the doctrine of constitutional
supremacy, if a law or contract violates any norm of the
constitution that law or contract whether promulgated by the
legislative or by the executive branch or entered into by
private persons for private purposes is null and void and
without any force and effect. Thus, since the Constitution is
the fundamental, paramount and supreme law of the nation, it
is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of
policies and principles. Their provisions command the
legislature to enact laws and carry out the purposes of the
framers who merely establish an outline of government
providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable
rights of citizens. 12 A provision which lays down a general
principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing. But a provision
which is complete in itself and becomes operative without the
aid of supplementary or enabling legislation, or that which
supplies sufficient rule by means of which the right it grants
may be enjoyed or protected, is self-executing. Thus a
constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed
by the constitution itself, so that they can be determined by an
examination and construction of its terms, and there is no
language indicating that the subject is referred to the
legislature for action. 13
As against constitutions of the past, modern constitutions have
been generally drafted upon a different principle and have
often become in effect extensive codes of laws intended to
operate directly upon the people in a manner similar to that of
statutory enactments, and the function of constitutional
conventions has evolved into one more like that of a
legislative body. Hence, unless it is expressly provided that a
legislative act is necessary to enforce a constitutional mandate,
the presumption now is that all provisions of the constitution
are self-executing If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature
would have the power to ignore and practically nullify the
mandate of the fundamental law.14 This can be cataclysmic.
That is why the prevailing view is, as it has always been, that
— constitutional provision does not render such a provision
. . . in case of doubt, the Constitution should be considered
self-executing rather than non-self-executing . . . . Unless the
contrary is clearly intended, the provisions of the Constitution
should be considered self-executing, as a contrary rule would
give the legislature discretion to determine when, or whether,
they shall be effective. These provisions would be
subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the
needed implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the
1987 Constitution is clearly not self-executing, as they quote
from discussions on the floor of the 1986 Constitutional
Commission —
MR. RODRIGO. Madam President, I am asking this question
as the Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it
be understood as a preference to qualified Filipinos vis-a-
vis Filipinos who are not qualified. So, why do we not make it
clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner
Rodrigo? Is it to remove the word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
FILIPINOS" as against whom? As against aliens or over
aliens?
MR. NOLLEDO. Madam President, I think that is understood.
We use the word "QUALIFIED" because the existing laws or
prospective laws will always lay down conditions under which
business may be done. For example, qualifications on the
setting up of other financial structures, et cetera (emphasis
supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched
in such a way as not to make it appear that it is non-self-
executing but simply for purposes of style. But, certainly, the
legislature is not precluded from enacting other further laws to
enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor
details may be left to the legislature without impairing the
self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may
still enact legislation to facilitate the exercise of powers
directly granted by the constitution, further the operation of
such a provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the protection
of the rights secured or the determination thereof, or place
reasonable safeguards around the exercise of the right. The
mere fact that legislation may supplement and add to or
prescribe a penalty for the violation of a self-executing
ineffective in the absence of such legislation. The omission
from a constitution of any express provision for a remedy for
enforcing a right or liability is not necessarily an indication
that it was not intended to be self-executing. The rule is that a
self-executing provision of the constitution does not
necessarily exhaust legislative power on the subject, but any
legislation must be in harmony with the constitution, further
the exercise of constitutional right and make it more
available. 17 Subsequent legislation however does not
necessarily mean that the subject constitutional provision is
not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of
Sec. 10, second par., of Art. XII is implied from the tenor of
the first and third paragraphs of the same section which
undoubtedly are not self-executing. 18 The argument is
flawed. If the first and third paragraphs are not self-executing
because Congress is still to enact measures to encourage the
formation and operation of enterprises fully owned by
Filipinos, as in the first paragraph, and the State still needs
legislation to regulate and exercise authority over foreign
investments within its national jurisdiction, as in the third
paragraph, then a fortiori, by the same logic, the second
paragraph can only be self-executing as it does not by its
language require any legislation in order to give preference to
qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A
constitutional provision may be self-executing in one part and
non-self-executing in another. 19
Even the cases cited by respondents holding that certain
constitutional provisions are merely statements of principles
and policies, which are basically not self-executing and only
placed in the Constitution as moral incentives to legislation,
not as judicially enforceable rights — are simply not in
point. Basco v. Philippine Amusements and Gaming
Corporation 20 speaks of constitutional provisions on personal
dignity, 21 the sanctity of family life, 22 the vital role of the
youth in nation-building 23 the promotion of social
justice, 24 and the values of education. 25 Tolentino
v. Secretary of Finance 26 refers to the constitutional
provisions on social justice and human rights 27 and on
education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites
provisions on the promotion of general welfare, 30 the sanctity
of family life, 31 the vital role of the youth in nation-
building 32 and the promotion of total human liberation and
development. 33A reading of these provisions indeed clearly
shows that they are not judicially enforceable constitutional
rights but merely guidelines for legislation. The very terms of
the provisions manifest that they are only principles upon
which the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the
1987 Constitution is a mandatory, positive command which is
complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable When our
Constitution mandates that [i]n the grant of rights, privileges,
and concessions covering national economy and patrimony,
the State shall give preference to qualified Filipinos, it means
just that — qualified Filipinos shall be preferred. And when
our Constitution declares that a right exists in certain specified
circumstances an action may be maintained to enforce such
right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted
to enforce such constitutional right, such right enforces itself
by its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right
there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986
Constitutional Commission 34 explains —
The patrimony of the Nation that should be conserved and
developed refers not only to out rich natural resources but also
to the cultural heritage of out race. It also refers to our
intelligence in arts, sciences and letters. Therefore, we should
develop not only our lands, forests, mines and other natural
resources but also the mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term
patrimony pertains to heritage. 35 When the Constitution
speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to
the cultural heritage of the Filipinos.
Manila Hotel has become a landmark — a living testimonial
of Philippine heritage. While it was restrictively an American
hotel when it first opened in 1912, it immediately evolved to
be truly Filipino, Formerly a concourse for the elite, it has
since then become the venue of various significant events
which have shaped Philippine history. It was called
the Cultural Center of the 1930's. It was the site of the
festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the
Philippine Government. it plays host to dignitaries and official
visitors who are accorded the traditional Philippine
hospitality. 36
The history of the hotel has been chronicled in the book The
Manila Hotel: The Heart and Memory of a City. 37During
World War II the hotel was converted by the Japanese
Military Administration into a military headquarters. When
the American forces returned to recapture Manila the hotel
was selected by the Japanese together with Intramuros as the
two (2) places fro their final stand. Thereafter, in the 1950's
and 1960's, the hotel became the center of political activities,
playing host to almost every political convention. In 1970 the
hotel reopened after a renovation and reaped numerous
international recognitions, an acknowledgment of the Filipino
talent and ingenuity. In 1986 the hotel was the site of a
failed coup d' etat where an aspirant for vice-president was
"proclaimed" President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute
witness to the triumphs and failures, loves and frustrations of
the Filipinos; its existence is impressed with public interest; its
own historicity associated with our struggle for sovereignty,
independence and nationhood. Verily, Manila Hotel has
become part of our national economy and patrimony. For sure,
51% of the equity of the MHC comes within the purview of
the constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the
51% will have actual control and management of the hotel. In
this instance, 51% of the MHC cannot be disassociated from
the hotel and the land on which the hotel edifice stands.
Consequently, we cannot sustain respondents' claim that
the Filipino First Policy provision is not applicable since what
is being sold is only 51% of the outstanding shares of the
corporation, not the Hotel building nor the land upon which
the building stands. 38
The argument is pure sophistry. The term qualified
Filipinos as used in Our Constitution also includes
corporations at least 60% of which is owned by Filipinos. This
is very clear from the proceedings of the 1986 Constitutional
Commission
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the
Nolledo amendment. And the amendment would consist in
substituting the words "QUALIFIED FILIPINOS" with the
following: "CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL
OR CONTROLLING STOCK IS WHOLLY OWNED BY
SUCH CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President, apparently the proponent
is agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it
preference?
MR. DAVIDE. The Nolledo amendment would refer to an
individual Filipino. What about a corporation wholly owned
by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it
if we say that the preference should only be 100-percent
Filipino.
MR: DAVIDE. I want to get that meaning clear because
"QUALIFIED FILIPINOS" may refer only to individuals and
not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President. 39
xxx xxx xxx
MR. RODRIGO. Before we vote, may I request that the
amendment be read again.
MR. NOLLEDO. The amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE
TO QUALIFIED FILIPINOS." And the word "Filipinos" here,
as intended by the proponents, will include not only individual
Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos. 40
The phrase preference to qualified Filipinos was explained
thus —
MR. FOZ. Madam President, I would like to request
Commissioner Nolledo to please restate his amendment so that
I can ask a question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS,
PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign
enterprise is qualified and a Filipino enterprise is also
qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects
than the Filipino enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision
Commissioner Nolledo continues —
MR. NOLLEDO. Yes, Madam President. Instead of "MUST,"
it will be "SHALL — THE STATE SHALL GlVE
PREFERENCE TO QUALIFIED FILIPINOS. This embodies
the so-called "Filipino First" policy. That means that Filipinos
should be given preference in the grant of concessions,
privileges and rights covering the national patrimony. 42
The exchange of views in the sessions of the Constitutional
Commission regarding the subject provision was still further
clarified by Commissioner Nolledo 43 —
Paragraph 2 of Section 10 explicitly mandates the "Pro-
Filipino" bias in all economic concerns. It is better known as
the FILIPINO FIRST Policy . . . This provision was never
found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that preference
shall be given to those citizens who can make a viable
contribution to the common good, because of credible
competence and efficiency. It certainly does NOT mandate the
pampering and preferential treatment to Filipino citizens or
organizations that are incompetent or inefficient, since such an
indiscriminate preference would be counter productive and
inimical to the common good.
In the granting of economic rights, privileges, and
concessions, when a choice has to be made between a
"qualified foreigner" end a "qualified Filipino," the latter shall
be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was
so considered by respondent GSIS and selected as one of
the qualified bidders. It was pre-qualified by respondent GSIS
in accordance with its own guidelines so that the sole
inference here is that petitioner has been found to be possessed
of proven management expertise in the hotel industry, or it has
significant equity ownership in another hotel company, or it
has an overall management and marketing proficiency to
successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the
Constitution by arguing that the subject provision is not self-
executory and requires implementing legislation is quite
disturbing. The attempt to violate a clear constitutional
provision — by the government itself — is only too
distressing. To adopt such a line of reasoning is to renounce
the duty to ensure faithfulness to the Constitution. For, even
some of the provisions of the Constitution which evidently
need implementing legislation have juridical life of their own
and can be the source of a judicial remedy. We cannot simply
afford the government a defense that arises out of the failure to
enact further enabling, implementing or guiding legislation. In
fine, the discourse of Fr. Joaquin G. Bernas, S.J., on
constitutional government is apt —
The executive department has a constitutional duty to
implement laws, including the Constitution, even before
Congress acts — provided that there are discoverable legal
standards for executive action. When the executive acts, it
must be guided by its own understanding of the constitutional
command and of applicable laws. The responsibility for
reading and understanding the Constitution and the laws is not
the sole prerogative of Congress. If it were, the executive
would have to ask Congress, or perhaps the Court, for an
interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional
government operates. 45
Respondents further argue that the constitutional provision is
addressed to the State, not to respondent GSIS which by itself
possesses a separate and distinct personality. This argument
again is at best specious. It is undisputed that the sale of 51%
of the MHC could only be carried out with the prior approval
of the State acting through respondent Committee on
Privatization. As correctly pointed out by Fr. Joaquin G.
Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional
jurisprudence, the acts of persons distinct from the
government are considered "state action" covered by the
Constitution (1) when the activity it engages in is a "public
function;" (2) when the government is so significantly
involved with the private actor as to make the government
responsible for his action; and, (3) when the government has
approved or authorized the action. It is evident that the act of
respondent GSIS in selling 51% of its share in respondent
MHC comes under the second and third categories of "state
action." Without doubt therefore the transaction. although
entered into by respondent GSIS, is in fact a transaction of the
State and therefore subject to the constitutional command. 46
When the Constitution addresses the State it refers not only to
the people but also to the government as elements of the State.
After all, government is composed of three (3) divisions of
power — legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is correspondingly
directed to the three(3) branches of government. It is
undeniable that in this case the subject constitutional
injunction is addressed among others to the Executive
Department and respondent GSIS, a government
instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the
higher bid it is not yet the winning bidder. The bidding rules
expressly provide that the highest bidder shall only be
declared the winning bidder after it has negotiated and
executed the necessary contracts, and secured the requisite
approvals. Since the "Filipino First Policy provision of the
Constitution bestows preference on qualified Filipinos the
mere tending of the highest bid is not an assurance that the
highest bidder will be declared the winning bidder.
Resultantly, respondents are not bound to make the award yet,
nor are they under obligation to enter into one with the highest
bidder. For in choosing the awardee respondents are mandated
to abide by the dictates of the 1987 Constitution the provisions
of which are presumed to be known to all the bidders and
other interested parties.
Adhering to the doctrine of constitutional supremacy, the
subject constitutional provision is, as it should be, impliedly
written in the bidding rules issued by respondent GSIS, lest
the bidding rules be nullified for being violative of the
Constitution. It is a basic principle in constitutional law that all
laws and contracts must conform with the fundamental law of
the land. Those which violate the Constitution lose their
reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any
reason the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to other Qualified Bidders that
have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price
per
share. 47 Certainly, the constitutional mandate itself is reason
enough not to award the block of shares immediately to the
foreign bidder notwithstanding its submission of a higher, or
even the highest, bid. In fact, we cannot conceive of a stronger
reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest
bid in a public bidding concerning the grant of rights,
privileges and concessions covering the national economy and
patrimony, thereby exceeding the bid of a Filipino, there is no
question that the Filipino will have to be allowed to match the
bid of the foreign entity. And if the Filipino matches the bid of
a foreign firm the award should go to the Filipino. It must be
so if we are to give life and meaning to the Filipino First
Policy provision of the 1987 Constitution. For, while this may
neither be expressly stated nor contemplated in the bidding
rules, the constitutional fiat is, omnipresent to be simply
disregarded. To ignore it would be to sanction a perilous
skirting of the basic law.
This Court does not discount the apprehension that this policy
may discourage foreign investors. But the Constitution and
laws of the Philippines are understood to be always open to
public scrutiny. These are given factors which investors must
consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in
the Philippines or with any of its agencies or instrumentalities
is presumed to know his rights and obligations under the
Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped
from questioning the sale to Renong Berhad since petitioner
was well aware from the beginning that a foreigner could
participate in the bidding is meritless. Undoubtedly, Filipinos
and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest
bid tendered by the foreign entity. In the case before us, while
petitioner was already preferred at the inception of the bidding
because of the constitutional mandate, petitioner had not yet
matched the bid offered by Renong Berhad. Thus it did not
have the right or personality then to compel respondent GSIS
to accept its earlier bid. Rightly, only after it had matched the
bid of the foreign firm and the apparent disregard by
respondent GSIS of petitioner's matching bid did the latter
have a cause of action.
Besides, there is no time frame for invoking the constitutional
safeguard unless perhaps the award has been finally made. To
insist on selling the Manila Hotel to foreigners when there is a
Filipino group willing to match the bid of the foreign group is
to insist that government be treated as any other ordinary
market player, and bound by its mistakes or gross errors of
judgment, regardless of the consequences to the Filipino
people. The miscomprehension of the Constitution is
regrettable. Thus we would rather remedy the indiscretion
while there is still an opportunity to do so than let the
government develop the habit of forgetting that the
Constitution lays down the basic conditions and parameters
for its actions.
Since petitioner has already matched the bid price tendered by
Renong Berhad pursuant to the bidding rules, respondent
GSIS is left with no alternative but to award to petitioner the
block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance not
only with the bidding guidelines and procedures but with the
Constitution as well. The refusal of respondent GSIS to
execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the
bid of the Malaysian firm clearly constitutes grave abuse of
discretion.
The Filipino First Policy is a product of Philippine
nationalism. It is embodied in the 1987 Constitution not
merely to be used as a guideline for future legislation but
primarily to be enforced; so must it be enforced. This Court as
the ultimate guardian of the Constitution will never shun,
under any reasonable circumstance, the duty of upholding the
majesty of the Constitution which it is tasked to defend. It is
worth emphasizing that it is not the intention of this Court to
impede and diminish, much less undermine, the influx of
foreign investments. Far from it, the Court encourages and
welcomes more business opportunities but avowedly sanctions
the preference for Filipinos whenever such preference is
ordained by the Constitution. The position of the Court on this
matter could have not been more appropriately articulated by
Chief Justice Narvasa —
As scrupulously as it has tried to observe that it is not its
function to substitute its judgment for that of the legislature or
the executive about the wisdom and feasibility of legislation
economic in nature, the Supreme Court has not been spared
criticism for decisions perceived as obstacles to economic
progress and development . . . in connection with a temporary
injunction issued by the Court's First Division against the sale
of the Manila Hotel to a Malaysian Firm and its partner,
certain statements were published in a major daily to the effect
that injunction "again demonstrates that the Philippine legal
system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no
business of the Court to intervene in contracts of the kind
referred to or set itself up as the judge of whether they are
viable or attainable, it is its bounden duty to make sure that
they do not violate the Constitution or the laws, or are not
adopted or implemented with grave abuse of discretion
amounting to lack or excess of jurisdiction. It will never shirk
that duty, no matter how buffeted by winds of unfair and ill-
informed criticism. 48
Privatization of a business asset for purposes of enhancing its
business viability and preventing further losses, regardless of
the character of the asset, should not take precedence over
non-material values. A commercial, nay even a budgetary,
objective should not be pursued at the expense of national
pride and dignity. For the Constitution enshrines higher and
nobler non-material values. Indeed, the Court will always
defer to the Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in any
economic policy as to draw itself beyond judicial review when
the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines
being a democratic and republican state, with sovereignty
residing in the Filipino people and from whom all government
authority emanates. In nationalism, the happiness and welfare
of the people must be the goal. The nation-state can have no
higher purpose. Any interpretation of any constitutional
provision must adhere to such basic concept. Protection of
foreign investments, while laudible, is merely a policy. It
cannot override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not
just any commodity to be sold to the highest bidder solely for
the sake of privatization. We are not talking about an ordinary
piece of property in a commercial district. We are talking
about a historic relic that has hosted many of the most
important events in the short history of the Philippines as a
nation. We are talking about a hotel where heads of states
would prefer to be housed as a strong manifestation of their
desire to cloak the dignity of the highest state function to their
official visits to the Philippines. Thus the Manila Hotel has
played and continues to play a significant role as an authentic
repository of twentieth century Philippine history and culture.
In this sense, it has become truly a reflection of the Filipino
soul — a place with a history of grandeur; a most historical
setting that has played a part in the shaping of a country. 51
This Court cannot extract rhyme nor reason from the
determined efforts of respondents to sell the historical
landmark — this Grand Old Dame of hotels in Asia — to a
total stranger. For, indeed, the conveyance of this epic
exponent of the Filipino psyche to alien hands cannot be less
than mephistophelian for it is, in whatever manner viewed, a
veritable alienation of a nation's soul for some pieces of
foreign silver. And so we ask: What advantage, which cannot
be equally drawn from a qualified Filipino, can be gained by
the Filipinos Manila Hotel — and all that it stands for — is
sold to a non-Filipino? How much of national pride will
vanish if the nation's cultural heritage is entrusted to a foreign
entity? On the other hand, how much dignity will be preserved
and realized if the national patrimony is safekept in the hands
of a qualified, zealous and well-meaning Filipino? This is the
plain and simple meaning of the Filipino First Policy provision
of the Philippine Constitution. And this Court, heeding the
clarion call of the Constitution and accepting the duty of being
the elderly watchman of the nation, will continue to respect
and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and
OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from selling
51% of the shares of the Manila Hotel Corporation to
RENONG BERHAD, and to ACCEPT the matching bid of
petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel
Corporation at P44.00 per share and thereafter to execute the
necessary clearances and to do such other acts and deeds as
may be necessary for purpose.

SO ORDERED.
G.R. No. 161872 April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of
Candidacy for President on December 17, 2003. Respondent
Commission on Elections (COMELEC) refused to give due
course to petitioner’s Certificate of Candidacy in
its Resolution No. 6558 dated January 17, 2004. The decision,
however, was not unanimous since Commissioners
Luzviminda G. Tancangco and Mehol K. Sadain voted to
include petitioner as they believed he had parties or
movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration
of Resolution No. 6558. Petitioner’s Motion for
Reconsideration was docketed as SPP (MP) No. 04-001. The
COMELEC, acting on petitioner’s Motion for
Reconsideration and on similar motions filed by other
aspirants for national elective positions, denied the same under
the aegis of Omnibus Resolution No. 6604 dated February 11,
2004. The COMELEC declared petitioner and thirty-five (35)
others nuisance candidates who could not wage a nationwide
campaign and/or are not nominated by a political party or are
not supported by a registered political party with a national
constituency. Commissioner Sadain maintained his vote for
petitioner. By then, Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to
reverse the resolutions which were allegedly rendered in
violation of his right to "equal access to opportunities for
public service" under Section 26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates
only to those who can afford to wage a nationwide campaign
and/or are nominated by political parties. In so doing,
petitioner argues that the COMELEC indirectly amended the
constitutional provisions on the electoral process and limited
the power of the sovereign people to choose their leaders. The
COMELEC supposedly erred in disqualifying him since he is
the most qualified among all the presidential candidates, i.e.,
he possesses all the constitutional and legal qualifications for
the office of the president, he is capable of waging a national
campaign since he has numerous national organizations under
his leadership, he also has the capacity to wage an
international campaign since he has practiced law in other
countries, and he has a platform of government. Petitioner
likewise attacks the validity of the form for the Certificate of
Candidacy prepared by the COMELEC. Petitioner claims that
the form does not provide clear and reasonable guidelines for
determining the qualifications of candidates since it does not
ask for the candidate’s bio-data and his program of
government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioner’s invocation of the constitutional
provision ensuring "equal access to opportunities for public
office" is the claim that there is a constitutional right to run for
or hold public office and, particularly in his case, to seek the
presidency. There is none. What is recognized is merely a
privilege subject to limitations imposed by law. Section 26,
Article II of the Constitution neither bestows such a right nor
elevates the privilege to the level of an enforceable right.
There is nothing in the plain language of the provision which
suggests such a thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II
of the Constitution, entitled "Declaration of Principles and
State Policies." The provisions under the Article are generally
considered not self-executing,2 and there is no plausible
reason for according a different treatment to the "equal access"
provision. Like the rest of the policies enumerated in Article
II, the provision does not contain any judicially enforceable
constitutional right but merely specifies a guideline for
legislative or executive action.3 The disregard of the provision
does not give rise to any cause of action before the courts.4
An inquiry into the intent of the framers5 produces the same
determination that the provision is not self-executory. The
original wording of the present Section 26, Article II had read,
"The State shall broaden opportunities to public office and
prohibit public dynasties."6 Commissioner (now Chief
Justice) Hilario Davide, Jr. successfully brought forth an
amendment that changed the word "broaden" to the phrase
"ensure equal access," and the substitution of the word
"office" to "service." He explained his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL
ACCESS TO" because what is important would be equal
access to the opportunity. If you broaden, it would necessarily
mean that the government would be mandated to create as
many offices as are possible to accommodate as many people
as are also possible. That is the meaning of broadening
opportunities to public service. So, in order that we should not
mandate the State to make the government the number one
employer and to limit offices only to what may be necessary
and expedient yet offering equal opportunities to access to it, I
change the word "broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to
enact positive measures that would accommodate as many
people as possible into public office. The approval of the
"Davide amendment" indicates the design of the framers to
cast the provision as simply enunciatory of a desired policy
objective and not reflective of the imposition of a clear State
burden.
Moreover, the provision as written leaves much to be desired
if it is to be regarded as the source of positive rights. It is
difficult to interpret the clause as operative in the absence of
legislation since its effective means and reach are not properly
defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be entirely open-
ended.8 Words and phrases such as "equal access,"
"opportunities," and "public service" are susceptible to
countless interpretations owing to their inherent
impreciseness. Certainly, it was not the intention of the
framers to inflict on the people an operative but amorphous
foundation from which innately unenforceable rights may be
sourced.
As earlier noted, the privilege of equal access to opportunities
to public office may be subjected to limitations. Some valid
limitations specifically on the privilege to seek elective office
are found in the provisions9 of the Omnibus Election Code on
"Nuisance Candidates" and COMELEC Resolution No.
645210 dated December 10, 2002 outlining the instances
wherein the COMELEC may motu proprio refuse to give due
course to or cancel a Certificate of Candidacy.
As long as the limitations apply to everybody equally without
discrimination, however, the equal access clause is not
violated. Equality is not sacrificed as long as the burdens
engendered by the limitations are meant to be borne by any
one who is minded to file a certificate of candidacy. In the
case at bar, there is no showing that any person is exempt from
the limitations or the burdens which they create.
Significantly, petitioner does not challenge the
constitutionality or validity of Section 69 of the Omnibus
Election Code and COMELEC Resolution No. 6452 dated 10
December 2003. Thus, their presumed validity stands and has
to be accorded due weight.
Clearly, therefore, petitioner’s reliance on the equal access
clause in Section 26, Article II of the Constitution is
misplaced.
The rationale behind the prohibition against nuisance
candidates and the disqualification of candidates who have not
evinced a bona fide intention to run for office is easy to divine.
The State has a compelling interest to ensure that its electoral
exercises are rational, objective, and orderly. Towards this
end, the State takes into account the practical considerations in
conducting elections. Inevitably, the greater the number of
candidates, the greater the opportunities for logistical
confusion, not to mention the increased allocation of time and
resources in preparation for the election. These practical
difficulties should, of course, never exempt the State from the
conduct of a mandated electoral exercise. At the same time,
remedial actions should be available to alleviate these
logistical hardships, whenever necessary and proper.
Ultimately, a disorderly election is not merely a textbook
example of inefficiency, but a rot that erodes faith in our
democratic institutions. As the United States Supreme Court
held:
[T]here is surely an important state interest in requiring some
preliminary showing of a significant modicum of support
before printing the name of a political organization and its
candidates on the ballot – the interest, if no other, in avoiding
confusion, deception and even frustration of the democratic
[process].11
The COMELEC itself recognized these practical
considerations when it promulgated Resolution No. 6558 on
17 January 2004, adopting the study Memorandum of its Law
Department dated 11 January 2004. As observed in the
COMELEC’s Comment:
There is a need to limit the number of candidates especially in
the case of candidates for national positions because the
election process becomes a mockery even if those who cannot
clearly wage a national campaign are allowed to run. Their
names would have to be printed in the Certified List of
Candidates, Voters Information Sheet and the Official Ballots.
These would entail additional costs to the government. For the
official ballots in automated counting and canvassing of votes,
an additional page would amount to more or less FOUR
HUNDRED FIFTY MILLION PESOS (₱450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates
to continue if they cannot wage a decent campaign enough to
project the prospect of winning, no matter how slim.12
The preparation of ballots is but one aspect that would be
affected by allowance of "nuisance candidates" to run in the
elections. Our election laws provide various entitlements for
candidates for public office, such as watchers in every polling
place,13 watchers in the board of canvassers,14 or even the
receipt of electoral contributions.15Moreover, there are
election rules and regulations the formulations of which are
dependent on the number of candidates in a given election.
Given these considerations, the ignominious nature of a
nuisance candidacy becomes even more galling. The
organization of an election with bona fide candidates standing
is onerous enough. To add into the mix candidates with no
serious intentions or capabilities to run a viable campaign
would actually impair the electoral process. This is not to
mention the candidacies which are palpably ridiculous so as to
constitute a one-note joke. The poll body would be bogged by
irrelevant minutiae covering every step of the electoral
process, most probably posed at the instance of these nuisance
candidates. It would be a senseless sacrifice on the part of the
State.
Owing to the superior interest in ensuring a credible and
orderly election, the State could exclude nuisance candidates
and need not indulge in, as the song goes, "their trips to the
moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No.
6452 are cognizant of the compelling State interest to ensure
orderly and credible elections by excising impediments
thereto, such as nuisance candidacies that distract and detract
from the larger purpose. The COMELEC is mandated by the
Constitution with the administration of elections16 and
endowed with considerable latitude in adopting means and
methods that will ensure the promotion of free, orderly and
honest elections.17 Moreover, the Constitution guarantees that
only bona fide candidates for public office shall be free from
any form of harassment and discrimination.18 The
determination of bona fidecandidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined
in the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved

are, their proper application in the case of the petitioner cannot
be tested and reviewed by this Court on the basis of what is
now before it. The assailed resolutions of the COMELEC do
not direct the Court to the evidence which it considered in
determining that petitioner was a nuisance candidate. This
precludes the Court from reviewing at this instance whether
the COMELEC committed grave abuse of discretion in
disqualifying petitioner, since such a review would necessarily
take into account the matters which the COMELEC
considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of

various documents purportedly evincing his credentials as an
eligible candidate for the presidency. Yet this Court, not being
a trier of facts, can not properly pass upon the reproductions as
evidence at this level. Neither the COMELEC nor the Solicitor
General appended any document to their
respective Comments.

The question of whether a candidate is a nuisance candidate or

not is both legal and factual. The basis of the factual
determination is not before this Court. Thus, the remand of
this case for the reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s

aspiration and offer to serve in the government. It deserves not
a cursory treatment but a hearing which conforms to the
requirements of due process.

As to petitioner’s attacks on the validity of the form for the

certificate of candidacy, suffice it to say that the form strictly
complies with Section 74 of the Omnibus Election Code. This
provision specifically enumerates what a certificate of
candidacy should contain, with the required information
tending to show that the candidate possesses the minimum
qualifications for the position aspired for as established by the
Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP

(MP) No. 04-001 is hereby remanded to the COMELEC for
the reception of further evidence, to determine the question on
whether petitioner Elly Velez Lao Pamatong is a nuisance
candidate as contemplated in Section 69 of the Omnibus
Election Code.

The COMELEC is directed to hold and complete the reception

of evidence and report its findings to this Court with deliberate
dispatch.

SO ORDERED.
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General
CALIXTO DUQUE, Colonel MARGARITO TORALBA,
Colonel IRENEO BUENCONSEJO, Colonel PEDRO
TABUENA, Major FEDERICO ARANAS, MELVILLE S.
HUSSEY and ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for
petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr.,
Ricardo A. Arcilla and S. Melville Hussey for respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the
Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in The Philippines during a period
covering 19433 and 19444 who is now charged before a
military Commission convened by the Chief of Staff of the
Armed forces of the Philippines with having unlawfully
disregarded and failed "to discharge his duties as such
command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and
prisoners of the Imperial Japanese Forces in violation of the
laws and customs of war" — comes before this Court seeking
to establish the illegality of Executive Order No. 68 of the
President of the Philippines: to enjoin and prohibit
respondents Melville S. Hussey and Robert Port from
participating in the prosecution of petitioner's case before the
Military Commission and to permanently prohibit respondents
from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal
arguments.
First. — "That Executive Order No. 68 is illegal on the ground
that it violates not only the provision of our constitutional law
but also our local laws to say nothing of the fact (that) the
Philippines is not a signatory nor an adherent to the Hague
Convention on Rules and Regulations covering Land Warfare
and therefore petitioners is charged of 'crimes' not based on
law, national and international." Hence petitioner argues —
"That in view off the fact that this commission has been
empanelled by virtue of an unconstitutional law an illegal
order this commission is without jurisdiction to try herein
petitioner."
Second. — That the participation in the prosecution of the
case against petitioner before the Commission in behalf of the
United State of America of attorneys Melville Hussey and
Robert Port who are not attorneys authorized by the Supreme
Court to practice law in the Philippines is a diminution of our
personality as an independent state and their appointment as
prosecutor are a violation of our Constitution for the reason
that they are not qualified to practice law in the Philippines.
Third. — That Attorneys Hussey and Port have no personality
as prosecution the United State not being a party in interest in
the case.
Executive Order No. 68, establishing a National War Crimes
Office prescribing rule and regulation governing the trial of
accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds
that this order is valid and constitutional. Article 2 of our
Constitution provides in its section 3, that —
The Philippines renounces war as an instrument of national
policy and adopts the generally accepted principles of
international law as part of the of the nation.
In accordance with the generally accepted principle of
international law of the present day including the Hague
Convention the Geneva Convention and significant precedents
of international jurisprudence established by the United Nation
all those person military or civilian who have been guilty of
planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and
incidental thereto in violation of the laws and customs of war,
of humanity and civilization are held accountable therefor.
Consequently in the promulgation and enforcement of
Execution Order No. 68 the President of the Philippines has
acted in conformity with the generally accepted and policies of
international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the
President of his power as Commander in chief of all our armed
forces as upheld by this Court in the case of
Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we
said —
War is not ended simply because hostilities have ceased. After
cessation of armed hostilities incident of war may remain
pending which should be disposed of as in time of war. An
importance incident to a conduct of war is the adoption of
measure by the military command not only to repel and defeat
the enemies but to seize and subject to disciplinary measure
those enemies who in their attempt to thwart or impede our
military effort have violated the law of war. (Ex parte Quirin
317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a
military commission for the trial and punishment of war
criminals is an aspect of waging war. And in the language of a
writer a military commission has jurisdiction so long as a
technical state of war continues. This includes the period of an
armistice or military occupation up to the effective of a treaty
of peace and may extend beyond by treaty agreement.
(Cowles Trial of War Criminals by Military Tribunals,
America Bar Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully
empowered to consummate this unfinished aspect of war
namely the trial and punishment of war criminal through the
issuance and enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no
Jurisdiction to try petitioner for acts committed in violation of
the Hague Convention and the Geneva Convention because
the Philippines is not a signatory to the first and signed the
second only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions form, part of
and are wholly based on the generally accepted principals of
international law. In facts these rules and principles were
accepted by the two belligerent nation the United State and
Japan who were signatories to the two Convention, Such rule
and principles therefore form part of the law of our nation
even if the Philippines was not a signatory to the conventions
embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as
continued inn treaties to which our government may have been
or shall be a signatory.
Furthermore when the crimes charged against petitioner were
allegedly committed the Philippines was under the sovereignty
of United States and thus we were equally bound together with
the United States and with Japan to the right and obligation
contained in the treaties between the belligerent countries.
These rights and obligation were not erased by our assumption
of full sovereignty. If at all our emergency as a free state
entitles us to enforce the right on our own of trying and
punishing those who committed crimes against crimes against
our people. In this connection it is well to remember what we
have said in the case of Laurel vs. Misa (76 Phil., 372):
proper that United States, which has submitted the vindication
of crimes against her government and her people to a tribunal
of our nation should be allowed representation in the trial of
those very crimes. If there has been any relinquishment of
sovereignty it has not been by our government but by the
United State Government which has yielded to us the trial and
punishment of her enemies. The least that we could do in the
spirit of comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the
case petitioner challenges the personality of attorneys Hussey
and Port as prosecutors. It is of common knowledge that the
United State and its people have been equally if not more
greatly aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered
a privilege for our Republic that a leader nation should submit
the vindication of the honor of its citizens and its government
to a military tribunal of our country.
The Military Commission having been convened by virtue of a
valid law with jurisdiction over the crimes charged which fall
under the provisions of Executive Order No. 68, and having
said petitioner in its custody, this Court will not interfere with
the due process of such Military commission.
For all the foregoing the petition is denied with costs de oficio.

. . . The change of our form government from Commonwealth

to Republic does not affect the prosecution of those charged
with the crime of treason committed during then
Commonwealth because it is an offense against the same
sovereign people. . . .

By the same token war crimes committed against our people

and our government while we were a Commonwealth are
triable and punishable by our present Republic.

Petitioner challenges the participation of two American

attorneys namely Melville S. Hussey and Robert Port in the
prosecution of his case on the ground that said attorney's are
not qualified to practice law in Philippines in accordance with
our Rules of court and the appointment of said attorneys as
prosecutors is violative of our national sovereignty.

In the first place respondent Military Commission is a special

military tribunal governed by a special law and not by the
Rules of court which govern ordinary civil court. It has
already been shown that Executive Order No. 68 which
provides for the organization of such military commission is a
valid and constitutional law. There is nothing in said executive
order which requires that counsel appearing before said
commission must be attorneys qualified to practice law in the
Philippines in accordance with the Rules of Court. In facts it is
common in military tribunals that counsel for the parties are
usually military personnel who are neither attorneys nor even
possessed of legal training.

Secondly the appointment of the two American attorneys is

not violative of our nation sovereignty. It is only fair and
G.R. No. L-44 September 13, 1945
LILY RAQUIZA, ET AL., petitioners,
vs.
LT. COL. L.J. BRADFORD, ET AL., respondents.
Guillermo B. Guevarra for petitioners.
J.A. Wolfson for respondents.
HILADO, J.:
Alleging in their petition for a writ of habeas corpus, dated
August 30, 1945, that they have been and are being "confined,
restrained and deprived" of their liberty in the Correctional
Institution for Women, petitioners, Lily Raquiza, Haydee Tee
Han Kee and Emma Link Infante, pray that the officers therein
named, to wit, Lt. Col. L.J. Bradford and Capt. Inez L.
Twindle of the CIC, U.S. Army, "or whoever acts in her place
or stead," be directed to appear before this Court and produce
the bodies of petitioners, and to show cause why petitioners
should not forthwith be set at liberty.
Respondent Lt. Col., Bradford, having been served with this
Court's order to show cause dated August 31, 1945, made
return thereto dated September 5, 1945, to which are attached
as parts thereof certain commitment orders marked Schedules
A, A-1 and A-2, the first and last emanating from the
Headquarters of the Sixth Army, 306th Counter Intelligence
Corps Detachment, and the second from that of the United
States Army Forces in the Far East, 493rd Counter
Intelligence Corps Detachment.
Respondent Captain Caroline De Eason, WAC, having been
served with this Court's order to show cause dated September
7, 1945, made return thereto dated on the same day,
incorporating therein by reference Schedules A, A-1 and A-2
of her co-respondents' return above mentioned.
It appears from these returns, as well as from the arguments of
counsel, that by virtue of the proclamation issued by General
of the Army MacArthur on December 29, 1944, petitioner Lily
Raquiza was on March 13, 1945, arrested by the 306th
Counter Intelligence Corps Detachment of the U.S. Sixth
Army, and detained under Security Commitment Order No.
385 (Schedule A), wherein she was charged as follows:
Commitment Order. — The person named and described
above is deemed a risk to the security of the U.S. Forces for
the reasons set forth above. The commanding officer of any
military stockade, jail, or comparable installation in which this
person may be confined is authorized and directed to detain
him in custody until released by competent military authority.
In said Schedule A the specific complaint or charge against
complaint or charge against petitioner Lily Raquiza is
"Espionage activity for Japanese."
As to petitioner Haydee Tee Han Kee, it appears that by virtue
of the aforesaid proclamation she, on February 25, 1945, was
arrested by the same 306th Counter Intelligence Corps
Detachment, and detained under Security Commitment Order
No. 286 (Schedule A-2) wherein the Commitment Order is in
exactly the same terms as in Schedule A. The specific
complaint or charge against petitioner Tee Han Kee in
Schedule A-2 is "Active collaboration with the enemy."
With regard to petitioner Emma Link Infante, it appears that
by virtue of the same proclamation she, on April 10, 1945,
was arrested by the 493rd Counter Intelligence Corps
Detachment of the United States Army Forces in the Far East,
and detained under Commitment of that date (Schedule A-1),
wherein she was charged with "Active collaboration with the
Japanese." Her previous association with the enemy
constitutes a present security risk to the United States Armed
Forces.
The said proclamation reads:
GENERAL HEADQUARTERS
SOUTHWEST PACIFIC AREA
PROCLAMATION
PROVIDING FOR MILITARY MEASURES TO BE TAKEN
UPON THE APPREHENSION OF CITIZENS OF THE
PHILIPPINES WHO VOLUNTARILY HAVE GIVEN AID,
COMFORT AND SUSTENANCE TO THE ENEMY.
WHEREAS evidence is before me that certain citizens of the
Philippines voluntarily have given aid, comfort and sustenance
to the enemy in violation of allegiance due the Governments
of the United States and the Commonwealth of the
Philippines; and
WHEREAS military necessity requires that such persons be
enemy in violation of allegiance due the Governments of the
United States and the Commonwealth of the Philippines; and
NOW, THEREFORE, I, Douglas MacArthur, General of the
Army, United States Army, as Commander-in-Chief
Southwest Pacific Area, hereby do publish and declare it to be
my purpose to remove such persons, when apprehended, from
any position of political and economic influence in the
Philippines and to hold them in restraint for the duration of the
war; whereafter I shall release them to the Philippine
Government for its judgment upon their respective cases.
Done at General Headquarters, Southwest Pacific Area, in the
field, this twenty-ninth day of December, 1944.
DOUGLAS MACARTHUR
General of the Army
United States Army
Commander-in-Chief
Of course, the power of the Commander in Chief of the United
States Army to issue the foregoing proclamation cannot be
seriously questioned. It has not been questioned in this case.
Where opinions are divided as to its interpretation and effects.
General of the Army MacArthur therein published and
declared it to be his purpose, among other things, to hold in
restraint the persons referred to, when apprehended, "for the
duration of the war; whereafter, I shall release them to the
Philippine Government for its judgment upon their respective
cases." He premised his proclamation upon two grave reasons,
to wit, (1) that evidence was before him "that certain citizens
of the Philippines voluntarily have given aid, comfort and
sustenance to the enemy in violation of allegiance due the
Government of the United States and the Commonwealth of
the Philippines;" and (2) that "military necessity requires that
such persons be removed from any opportunity to threaten the
security of our military forces or the success of our military
operations."
In the very nature of things, the Commander in Chief of the
Army of liberation at the time of issuing that proclamation had
to act upon the evidence then before him. The exigencies of
the mighty military operations that he had then but recently
begun for the destruction or defeat of the powerful enemy who
was at that time occupying the Islands, did not permit of any
other procedure. And to deny him the exclusive power and
competency to determine the strength and sufficiency of such
evidence would have been destructive of that military
efficieny with which, in the interest of all the citizens of the
Philippines themselves, not excluding the herein petitioners,
the operations for their liberation had to be conducted. And
once having apprehended the persons to whom the
proclamation referred, the same exigencies required that the
said Commander in Chief be invested with the exclusive
power and authority to decide when he should deliver them to
the Commonwealth of the Philippines.
Has the war terminated within the meaning of that part of his
proclamation wherein the Commander in Chief declared his
purpose to hold such persons in restraint "for the duration of
the war"? We are of opinion that it has not.
In the case of United States vs. Tubig (3 Phil., 244, 254), this
Court said:
From that day the fighting continued, and the insurrection did
not end officially until the President proclaimed it an end, July
4, 1902. It is necessary to refer to a public act of the Executive
Department to fix the date of the closing of the war.
(Freeborn vs. The Protector, 79 U.S., 700.)
If it be alleged that, notwithstanding the insurrection, there
were no actual hostilities in Nueva Ecija at the times above
mentioned, the answer is that the condition of hostility
remained impressed on the whole island until it was removed
by the proclamation of the President. . . .
War, in the legal sense, continues until, and terminates at the
time of, some formal proclamation of peace by an authority
competent to proclaim it. It is the province of the political
department, and not of the judicial department, of government
to determine when war is at an end. . . . (67 C.J., 429, sec.
195.)
And even if the war had terminated, we are of opinion that
under the aforesaid proclamation the petitioners, who are held
in restraint thereunder, would continue legally under custody
of the proper military authorities of General of the Army
MacArthur's or his successors' command, for a reasonable
time after termination of the war.
If General of the Army MacArthur had, in express terms,
declared in his aforesaid proclamation that after termination of
the war he will release the persons therein named to the
Philippine Government within a reasonable time, we think that
he could have done so within his legitimate powers as
Commander in Chief of the United States Army; and not only
this, but that for obvious reasons he should be the best and,
therefore, the only judge of how long or how short that time
should be under the circumstances. And in order to give his
proclamation a reasonable construction, we are of opinion that
this should be implied from the context. Otherwise, we would
be giving to this solemn document the irrational interpretation
that said Commander in Chief thereby announced a purpose
which would be physically impossible for him to carry out;
namely, to make delivery to the Philippine
Government immediately upon termination of the war of
persons under restraint whose number he could not then
foresee but which he could reasonably expect to be more or
less considerable, with their respective charges and pertinent
evidence, papers, and the like. It was not a matter of delivering
a certain quantity or amount of personal property but human
beings who although under custody, had to be properly
housed, maintained and otherwise treated as becoming the
"dignity of the human person," which is one of the cardinal
principles of democracy for which the United Nations have
fought in this war.
The fact that, as this Court can take judicial notice of, delivery
of certain persons under custody of the United States Army
pursuant to the said proclamation has already begun does not
mean that the war has, in the legal sense, already terminated,
which it clearly has not. Such delivery is undoubtedly within
the power of the proper military authorities to make even
before the termination of the war. The existence of the military
necessity to which General of the Army MacArthur refers in
his proclamation, as well as its continuance, is a question
exclusively for the military authorities to determine, as regards
each and every person under detention. For obvious reasons,
the civil courts should not here interfere, and it is to be
presumed that in the judgment of said military authorities that
necessity no longer requires the detention by them of the
persons whom they have already delivered to the Philippine
Government.
In the case of Coleman vs. Tennessee (97 U.S., 509), the
Supreme Court of the United States, among other things, said:
It is well settled that a foreign army, permitted to march
through a friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt from the
civil and the criminal jurisdiction of the place. The sovereign
is understood, said this court in the celebrated case of The
Exchange, 7 Cranch, 139, to cede a portion of his territorial
jurisdiction when he allows the troops of a foreign prince to
pass through his dominions: "In such case, without any
express declaration waiving jurisdiction over the army to
which this right of passage has been granted, it would
certainly be considered as violating his faith. By exercising it,
the purpose for which the free passage was granted would be
defeated, and a portion of the military force of a foreign
independent nation would be diverted from those national
objects and duties to which it was applicable, and would be
withdrawn from the control of the sovereign whose power and
whose safety might greatly depend on retaining the exclusive
command and disposition of this force. The grant of a free
passage, therefore, implies a waiver of all jurisdiction over the
troops during their passage, and permits the foreign general to
use that discipline and to inflict those punishments which the
government of this army may require." (Emphasis ours.)
In the case of the United States Army of liberation, not only
has the Commonwealth Government asked, and the United
States Government agreed, that it come and be stationed in the
Philippines, but it is here for the very realization of the
overruling and vehement desire and dream of the Filipino to
be freed from the shackles of Japanese tyranny, and to see this
was brought to a victorious end. If a foreign army permitted to
be stationed in a friendly country, "by permission of its
government or sovereign," is exempt from the civil and
criminal jurisdiction of the place, with much more reason
should the Army of the United States which is not only
permitted by the Commonwealth Government to be stationed
here but has come to the islands and stayed in them for the
express purpose of liberating them, and further prosecuting the
war to a successful conclusion, be exempt from the civil and
criminal jurisdiction of this place, at least for the time covered
by said agreement of the two Governments. By analogy, an
attempt of our civil courts to exercise jurisdiction over the
United States Army before such period expires, would be
considered as a violation of this country's faith, which this
Court should not be the last to keep and uphold. By exercising
it, paraphrasing the foregoing quotation, the purpose for which
the stationing of the army in the islands was requested or
agreed upon may be hampered or prejudiced, and a portion of
said military force would be withdrawn from the control of the
sovereign to whom they belong. And, again, by analogy, the
agreement, for the stationing of the United States Army or a
part of its forces in the Philippines implies as a waiver of all
jurisdiction over their troops during the time covered by such
agreement, and permits the allied general or commander in
chief to retain that exclusive control and discipline which the
government of his army may require.
Chief Justice Marshall, in the case of the Schooner
Exchange (7 Cranch, 139), gave the reasons underlying the
doctrine of mutual waiver of jurisdiction between nations in
the following paragraphs:
The world being composed of distinct sovereignties,
possessing equal rights and equal independence, whose mutual
benefit is promoted by intercourse with each other, and by an
interchange of those good offices which humanity dictates and
its wants require, all sovereigns have consented to a relaxation
in practice, in cases under certain peculiar circumstances, of
that absolute and complete jurisdiction within their respective
territories which sovereignty confers.
xxx xxx xxx
This perfect equality and absolute independence of sovereigns,
and this common interest impelling them to mutual
intercourse, and interchange of good offices with each other,
have given rise to a class of cases in which every sovereign is
understood to waive the exercise of a part of that complete
exclusive territorial jurisdiction, which has been stated to be
the attribute of every nation.
Furthermore, we are of the opinion that the present petitioners,
while under the custody of the United States military forces,
may be considered as prisoners of war. In volume II, Hydee
International Law, page 345, section 676, we read:
. . . It should be borne in mind that an army in the field, in the
course of any operation in any locality . . . may also avail
itself, of the right to make civilians prisoners of war.
The author cites from the Rules of Land Warfare which
contain an enumeration of civilians who may be made
prisoners of war. This enumeration includes:
(c) Persons whose services are of a particular use and benefit
to the hostile army or its government, such as the higher civil
officials, diplomatic agents, couriers, guides, etc. . . .
(Emphasis ours.)
We think that the petitioners would prima facie come within
this classification under the charges of "Espionage activity for
Japanese," "Active collaboration with the Japanese," and
"Active collaboration with the enemy."
We are not unmindful of the fact that the detention of the
petitioners may have subjected them to hardships, but this
situation is one of those born of all wars where hardships of all
description are visited upon even the most innocent people. At
any rate, we do not think that the petitioners are totally
without remedy. We think they may have recourse to the
proper military authorities by making due representation to
them.
These military authorities, we can safely presume, will not
deny to the petitioners any remedy which may be available
under the military laws and under the prevailing
circumstances. The United States army forces which have
come to the Philippines for the express purpose of liberating
the Filipinos and to restore them the blessings of liberty under
a democratic government, just as fast as the military situation
would permit, would not be — we can justly assume — the
very ones to take from them any of those liberties without
legal reason or justification. But the present state of the world
is such that military exigencies or military necessity may,
under certain circumstances, still require some limitation on
the restoration or enjoyment of those liberties. The present
case is, in our opinion, one such situation.

Whether the doctrine here laid down would be applicable to

cases arising in time of peace, we do not decide.

In conclusion, we hold that the petition should be dismissed.

No special pronouncement as to costs. So ordered.
G.R. No. L-24294 May 3, 1974
DONALD BAER, Commander U.S. Naval Base, Subic Bay,
Olongapo, Zambales, petitioner,
vs.
HON. TITO V. TIZON, as Presiding Judge of the Court of
First Instance of Bataan, and EDGARDO
GENER, respondents.
Sycip, Salazar, Luna Manalo & Feliciano for petitioner.
A. E. Dacanay for private respondent.
Office of the Solicitor General Camilo D. Quiason as amicus
curiae.
FERNANDO, J.:p
There is nothing novel about the question raised in this
certiorari proceeding against the then Judge Tito V. Tizon,
filed by petitioner Donald Baer, then Commander of the
United States Naval Base, Subic Bay, Olongapo, Zambales,
seeking to nullify the orders of respondent Judge denying his
motion to dismiss a complaint filed against him by the private
respondent, Edgardo Gener, on the ground of sovereign
immunity of a foreign power, his contention being that it was
in effect a suit against the United States, which had not given
its consent. The answer given is supplied by a number of cases
coming from this Tribunal starting from a 1945
decision, Raquiza v. Bradford1 to Johnson v.
Turner,2 promulgated in 1954. The doctrine of immunity from
suit is of undoubted applicability in this jurisdiction. It cannot
be otherwise, for under the 1935 Constitution, as now, it is
expressly made clear that the Philippines "adopts the generally
accepted principles of international law as part of the law of
the Nation."3 As will subsequently be shown, there was a
failure on the part of the lower court to accord deference and
respect to such a basic doctrine, a failure compounded by its
refusal to take note of the absence of any legal right on the
part of petitioner. Hence, certiorari is the proper remedy.
The facts are not in dispute. On November 17, 1964,
respondent Edgardo Gener, as plaintiff, filed a complaint for
injunction with the Court of First Instance of Bataan against
petitioner, Donald Baer, Commander of the United States
Naval Base in Olongapo. It was docketed as Civil Case No.
2984 of the Court of First Instance of Bataan. He alleged that
he was engaged in the business of logging in an area situated
in Barrio Mabayo, Municipality of Morong, Bataan and that
the American Naval Base authorities stopped his logging
operations. He prayed for a writ of preliminary injunction
restraining petitioner from interfering with his logging
operations. A restraining order was issued by respondent
Judge on November 23, 1964.4 Counsel for petitioner, upon
instructions of the American Ambassador to the Philippines,
entered their appearance for the purpose of contesting the
jurisdiction of respondent Judge on the ground that the suit
was one against a foreign sovereign without its
consent.5 Then, on December 12, 1964, petitioner filed a
motion to dismiss, wherein such ground was reiterated. It was
therein pointed out that he is the chief or head of an agency or
instrumentality of the United States of America, with the
subject matter of the action being official acts done by him for
and in behalf of the United States of America. It was added
that in directing the cessation of logging operations by
respondent Gener within the Naval Base, petitioner was
entirely within the scope of his authority and official duty, the
maintenance of the security of the Naval Base and of the
installations therein being the first concern and most important
duty of the Commander of the Base.6 There was, on
December 14, 1964, an opposition and reply to petitioner's
motion to dismiss by respondent Gener, relying on the
principle that "a private citizen claiming title and right of
possession of certain property may, to recover possession of
said property, sue as individuals, officers and agents of the
Government, who are said to be illegally withholding the same
from him, though in doing so, said officers and agents claim
that they are acting for the Government." That was his basis
for sustaining the jurisdiction of respondent Judge.7 Petitioner,
thereafter, on January 12, 1965, made a written offer of
documentary evidence, including certified copies of telegrams
of the Forestry Director to Forestry personnel in Balanga,
Bataan dated January 8, and January 11, 1965, directing
immediate investigation of illegal timber cutting in Bataan and
calling attention to the fact that the records of the office show
no new renewal of timber license or temporary extension
permits.8 The above notwithstanding, respondent Judge, on
January 12, 1965, issued an order granting respondent Gener's
application for the issuance of a writ of preliminary injunction
and denying petitioner's motion to dismiss the opposition to
the application for a writ of preliminary injunction.9
A motion for reconsideration having proved futile, this
petition for certiorari was filed with this Court. The prayer was
for the nullification and setting aside of the writ of preliminary
injunction issued by respondent Judge in the aforesaid Civil
Case No. 2984 of the Court of First Instance of Bataan. A
resolution of March 17, 1965 was issued by this Court
requiring respondents to file an answer and upon petitioner's
posting a bond of P5,000.00 enjoining them from enforcing
such writ of preliminary injunction. The answer was duly
forthcoming. It sought to meet the judicial question raised by
the legal proposition that a private citizen claiming title and
right of possession of a certain property may, to recover the
same, sue as individuals officers and agents of the government
alleged to be illegally withholding such property even if there
is an assertion on their part that they are acting for the
government. Support for such a view is found in the American
Supreme Court decisions of United States v. Lee10 and Land
v. Dollar.11Thus the issue is squarely joined whether or not
the doctrine of immunity from suit without consent is
applicable. Thereafter, extensive memoranda were filed both
by petitioner and respondents. In addition, there was a
manifestation and memorandum of the Republic of the
Philippines as amicus curiae where, after a citation of
American Supreme Court decisions going back to Schooner
Exchange v. M'faddon,12 an 1812 decision, to United States
v. Belmont,13 decided in 1937, the plea was made that the
petition for certiorari be granted..
A careful study of the crucial issue posed in this dispute yields
the conclusion, as already announced, that petitioner should
prevail.
1. The invocation of the doctrine of immunity from suit of a
foreign state without its consent is appropriate. More
specifically, insofar as alien armed forces is concerned, the
starting point is Raquiza v. Bradford, a 1945 decision.14In
dismissing a habeas corpus petition for the release of
petitioners confined by American army authorities, Justice
Hilado, speaking for the Court, cited from Coleman v.
Tennessee,15 where it was explicitly declared: "It is well
settled that a foreign army, permitted to march through a
friendly country or to be stationed in it, by permission of its
government or sovereign, is exempt from the civil and
criminal jurisdiction of the place."16 Two years later, in Tubb
and Tedrow v. Griess,17 this Court relied on the ruling
in Raquiza v. Bradford and cited in support thereof excerpts
from the works of the following authoritative writers: Vattel,
Wheaton, Hall, Lawrence, Oppenhein, Westlake, Hyde, and
McNair and Lauterpacht.18 Accuracy demands the
clarification that after the conclusion of the Philippine-
American Military Bases Agreement, the treaty provisions
should control on such matter, the assumption being that there
was a manifestation of the submission to jurisdiction on the
part of the foreign power whenever appropriate.19More to the
point is Syquia v. Almeda Lopez,20 where plaintiffs as lessors
sued the Commanding General of the United States Army in
the Philippines, seeking the restoration to them of the
apartment buildings they owned leased to United States armed
forces stationed in the Manila area. A motion to dismiss on the
ground of non-suability was filed and upheld by respondent
Judge. The matter was taken to this Court in a mandamus
proceeding. It failed. It was the ruling that respondent Judge
acted correctly considering that the "action must be considered
as one against the U.S. Government."21 The opinion of Justice
Montemayor continued: "It is clear that the courts of the
Philippines including the Municipal Court of Manila have no
jurisdiction over the present case for unlawful detainer. The
question of lack of jurisdiction was raised and interposed at
the very beginning of the action. The U.S. Government has not
given its consent to the filing of this suit which is essentially
against her, though not in name. Moreover, this is not only a
case of a citizen filing a suit against his own Government
without the latter's consent but it is of a citizen filing an action
against a foreign government without said government's
consent, which renders more obvious the lack of jurisdiction
of the courts of his country. The principles of law behind this
rule are so elementary and of such general acceptance that we
deem it unnecessary to cite authorities in support
thereof."22 Then came Marvel Building Corporation v.
Philippine War Damage Commission,23 where respondent, a
United States agency established to compensate damages
suffered by the Philippines during World War II was held as
falling within the above doctrine as the suit against it "would
eventually be a charge against or financial liability of the
United States Government because ..., the Commission has no
funds of its own for the purpose of paying money
judgments."24 The Syquiaruling was again explicitly relied
upon in Marquez Lim v. Nelson,25 involving a complaint for
the recovery of a motor launch, plus damages, the special
defense interposed being "that the vessel belonged to the
United States Government, that the defendants merely acted as
agents of said Government, and that the United States
Government is therefore the real party in interest."26 So it was
in Philippine Alien Property Administration v.
Castelo,27 where it was held that a suit against the Alien
Property Custodian and the Attorney General of the United
States involving vested property under the Trading with the
Enemy Act is in substance a suit against the United States. To
the same effect is Parreno v. McGranery,28 as the following
excerpt from the opinion of Justice Tuason clearly shows: "It
is a widely accepted principle of international law, which is
made a part of the law of the land (Article II, Section 3 of the
Constitution), that a foreign state may not be brought to suit
before the courts of another state or its own courts without its
consent."29 Finally, there is Johnson v. Turner,30 an appeal
by the defendant, then Commanding General, Philippine
Command (Air Force, with office at Clark Field) from a
decision ordering the return to plaintiff of the confiscated
military payment certificates known as scrip money. In
reversing the lower court decision, this Tribunal, through
Justice Montemayor, relied on Syquia v. Almeda
Lopez,31 explaining why it could not be sustained.
The solidity of the stand of petitioner is therefore evident.
What was sought by private respondent and what was granted
by respondent Judge amounted to an interference with the
performance of the duties of petitioner in the base area in
accordance with the powers possessed by him under the
Philippine-American Military Bases Agreement. This point
was made clear in these words: "Assuming, for purposes of
argument, that the Philippine Government, through the Bureau
of Forestry, possesses the "authority to issue a Timber License
to cut logs" inside a military base, the Bases Agreement
subjects the exercise of rights under a timber license issued by
the Philippine Government to the exercise by the United States
of its rights, power and authority of control within the bases;
and the findings of the Mutual Defense Board, an agency of
both the Philippine and United States Governments, that
"continued logging operation by Mr. Gener within the
boundaries of the U.S. Naval Base would not be consistent
with the security and operation of the Base," is conclusive
upon the respondent Judge. .. The doctrine of state immunity
is not limited to cases which would result in a pecuniary
charge against the sovereign or would require the doing of an
affirmative act by it. Prevention of a sovereign from doing an
affirmative act pertaining directly and immediately to the most
important public function of any government - the defense of
the state — is equally as untenable as requiring it to do an
affirmative act."32 That such an appraisal is not opposed to
the interpretation of the relevant treaty provision by our
government is made clear in the aforesaid manifestation and
memorandum as amicus curiae, wherein it joined petitioner for hereby made permanent. Costs against private respondent
the grant of the remedy prayed for. Edgardo Gener.

2. There should be no misinterpretation of the scope of the

decision reached by this Court. Petitioner, as the Commander
of the United States Naval Base in Olongapo, does not possess
diplomatic immunity. He may therefore be proceeded against
in his personal capacity, or when the action taken by him
cannot be imputed to the government which he represents.
Thus, after the Military Bases Agreement, in Miquiabas v.
Commanding General33and Dizon v. The Commanding
General of the Philippine-Ryukus Command,34 both of them
being habeas corpus petitions, there was no question as to the
submission to jurisdiction of the respondents. As a matter of
fact, in Miquiabas v. Commanding General,35 the immediate
release of the petitioner was ordered, it being apparent that the
general court martial appointed by respondent Commanding
General was without jurisdiction to try petitioner. Thereafter,
in the cited cases of Syquia, Marquez Lim, and Johnson, the
parties proceeded against were American army commanding
officers stationed in the Philippines. The insuperable obstacle
to the jurisdiction of respondent Judge is that a foreign
sovereign without its consent is haled into court in connection
with acts performed by it pursuant to treaty provisions and
thus impressed with a governmental character.

3. The infirmity of the actuation of respondent Judge becomes

even more glaring when it is considered that private
respondent had ceased to have any right of entering within the
base area. This is made clear in the petition in these words: "In
1962, respondent Gener was issued by the Bureau of Forestry
an ordinary timber license to cut logs in Barrio Mabayo,
Morong, Bataan. The license was renewed on July 10, 1963.
In 1963, he commenced logging operation inside the United
States Naval Base, Subic Bay, but in November 1963 he was
apprehended and stopped by the Base authorities from logging
inside the Base. The renewal of his license expired on July 30,
1964, and to date his license has not been renewed by the
Bureau of Forestry. .. In July 1964, the Mutual Defense Board,
a joint Philippines-United States agency established pursuant
to an exchange of diplomatic notes between the Secretary of
Foreign Affairs and the United States Ambassador to provide
"direct liaison and consultation between appropriate Philippine
and United States authorities on military matters of mutual
concern,' advised the Secretary of Foreign Affairs in writing
that: "The enclosed map shows that the area in which Mr.
Gener was logging definitely falls within the boundaries of the
base. This map also depicts certain contiguous and
overlapping areas whose functional usage would be interfered
with by the logging operations.'"36 Nowhere in the answer of
respondents, nor in their memorandum, was this point met. It
remained unrefuted.

WHEREFORE, the writ of certiorari prayed for is granted,

nullifying and setting aside the writ of preliminary injunction
issued by respondent Judge in Civil Case No. 2984 of the
Court of First Instance of Bataan. The injunction issued by this
Court on March 18, 1965 enjoining the enforcement of the
aforesaid writ of preliminary injunction of respondent Judge is
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land
Transportation Commissioner; HON. JUAN PONCE
ENRILE, in his capacity as Minister of National Defense;
HON. ALFREDO L. JUINIO, in his capacity as Minister Of
Public Works, Transportation and Communications; and
HON: BALTAZAR AQUINO, in his capacity as Minister of
Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor
General Ruben E. Agpalo and Solicitor Amado D. Aquino for
respondents.
FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early
seaming device for motor vehicles is assailed in this
prohibition proceeding as being violative of the constitutional
guarantee of due process and, insofar as the rules and
regulations for its implementation are concerned, for
transgressing the fundamental principle of non- delegation of
legislative power. The Letter of Instruction is stigmatized by
petitioner who is possessed of the requisite standing, as being
arbitrary and oppressive. A temporary restraining order as
issued and respondents Romeo F. Edu, Land Transportation
Commissioner Juan Ponce Enrile, Minister of National
Defense; Alfredo L. Juinio, Minister of Public Works,
Transportation and Communications; and Baltazar Aquino,
Minister of Public Highways; were to answer. That they did in
a pleading submitted by Solicitor General Estelito P.
Mendoza. 2 Impressed with a highly persuasive quality, it
makes devoid clear that the imputation of a constitutional
infirmity is devoid of justification The Letter of Instruction on
is a valid police power measure. Nor could the implementing
rules and regulations issued by respondent Edu be considered
as amounting to an exercise of legislative power. Accordingly,
the petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction
No. 229 of President Marcos, issued on December 2, 1974,
reads in full: "[Whereas], statistics show that one of the major
causes of fatal or serious accidents in land transportation is the
presence of disabled, stalled or parked motor vehicles along
streets or highways without any appropriate early warning
device to signal approaching motorists of their presence;
[Whereas], the hazards posed by such obstructions to traffic
have been recognized by international bodies concerned with
traffic safety, the 1968 Vienna Convention on Road Signs and
Signals and the United Nations Organization (U.N.);
[Whereas], the said Vienna Convention which was ratified by
the Philippine Government under P.D. No. 207, recommended
the enactment of local legislation for the installation of road
safety signs and devices; [Now, therefore, I, Ferdinand E.
Marcos], President of the Philippines, in the interest of safety
on all streets and highways, including expressways or limited
access roads, do hereby direct: 1. That all owners, users or
drivers of motor vehicles shall have at all times in their motor
vehicles at least one (1) pair of early warning device
consisting of triangular, collapsible reflectorized plates in red
and yellow colors at least 15 cms. at the base and 40 cms. at
the sides. 2. Whenever any motor vehicle is stalled or disabled
or is parked for thirty (30) minutes or more on any street or
highway, including expressways or limited access roads, the
owner, user or driver thereof shall cause the warning device
mentioned herein to be installed at least four meters away to
the front and rear of the motor vehicle staged, disabled or
parked. 3. The Land Transportation Commissioner shall cause
Reflectorized Triangular Early Warning Devices, as herein
described, to be prepared and issued to registered owners of
motor vehicles, except motorcycles and trailers, charging for
each piece not more than 15 % of the acquisition cost. He shall
also promulgate such rules and regulations as are appropriate
to effectively implement this order. 4. All hereby concerned
shall closely coordinate and take such measures as are
necessary or appropriate to carry into effect then
instruction. 3 Thereafter, on November 15, 1976, it was
amended by Letter of Instruction No. 479 in this wise.
"Paragraph 3 of Letter of Instruction No. 229 is hereby
amended to read as follows: 3. The Land transportation
Commissioner shall require every motor vehicle owner to
procure from any and present at the registration of his vehicle,
one pair of a reflectorized early warning device, as d bed of
any brand or make chosen by mid motor vehicle . The Land
Transportation Commissioner shall also promulgate such rule
and regulations as are appropriate to effectively implement
this order.'" 4 There was issued accordingly, by respondent
Edu, the implementing rules and regulations on December 10,
1976. 5 They were not enforced as President Marcos on
January 25, 1977, ordered a six-month period of suspension
insofar as the installation of early warning device as a pre-
registration requirement for motor vehicle was
concerned. 6 Then on June 30, 1978, another Letter of
Instruction 7 the lifting of such suspension and directed the
immediate implementation of Letter of Instruction No. 229 as
amended. 8 It was not until August 29, 1978 that respondent
Edu issued Memorandum Circular No. 32, worded thus: "In
pursuance of Letter of Instruction No. 716, dated June 30,
1978, the implementation of Letter of Instruction No. 229, as
amended by Letter of Instructions No. 479, requiring the use
of Early Warning Devices (EWD) on motor vehicle, the
following rules and regulations are hereby issued: 1. LTC
Administrative Order No. 1, dated December 10, 1976; shall
now be implemented provided that the device may come from
whatever source and that it shall have substantially complied
with the EWD specifications contained in Section 2 of said
administrative order; 2. In order to insure that every motor
vehicle , except motorcycles, is equipped with the device, a
pair of serially numbered stickers, to be issued free of charge
by this Commission, shall be attached to each EWD. The
EWD. serial number shall be indicated on the registration
certificate and official receipt of payment of current
registration fees of the motor vehicle concerned. All Orders,
Circulars, and Memoranda in conflict herewith are hereby
superseded, This Order shall take effect immediately. 9 It was
for immediate implementation by respondent Alfredo L.
Juinio, as Minister of Public Works, transportation, and
Communications. 10
Petitioner, after setting forth that he "is the owner of a
Volkswagen Beetle Car, Model 13035, already properly
equipped when it came out from the assembly lines with
blinking lights fore and aft, which could very well serve as an
early warning device in case of the emergencies mentioned in
Letter of Instructions No. 229, as amended, as well as the
implementing rules and regulations in Administrative Order
No. 1 issued by the land transportation
Commission," 11 alleged that said Letter of Instruction No.
229, as amended, "clearly violates the provisions and
delegation of police power, [sic] * * *: " For him they are
"oppressive, unreasonable, arbitrary, confiscatory, nay
unconstitutional and contrary to the precepts of our
compassionate New Society." 12 He contended that they are
"infected with arbitrariness because it is harsh, cruel and
unconscionable to the motoring public;" 13 are "one-sided,
onerous and patently illegal and immoral because [they] will
make manufacturers and dealers instant millionaires at the
expense of car owners who are compelled to buy a set of the
so-called early warning device at the rate of P 56.00 to P72.00
per set." 14 are unlawful and unconstitutional and contrary to
the precepts of a compassionate New Society [as being]
compulsory and confiscatory on the part of the motorists who
could very well provide a practical alternative road safety
device, or a better substitute to the specified set of
EWD's." 15 He therefore prayed for a judgment both the
assailed Letters of Instructions and Memorandum Circular
void and unconstitutional and for a restraining order in the
meanwhile.
A resolution to this effect was handed down by this Court on
October 19, 1978: "L-49112 (Leovillo C. Agustin v. Hon.
Romeo F. Edu, etc., et al.) — Considering the allegations
contained, the issues raised and the arguments adduced in the
petition for prohibition with writ of p prohibitory and/or
mandatory injunction, the Court Resolved to (require) the
respondents to file an answer thereto within ton (10) days
from notice and not to move to dismiss the petition. The Court
further Resolved to [issue] a [temporary restraining order]
effective as of this date and continuing until otherwise ordered
by this Court.16
Two motions for extension were filed by the Office of the
Solicitor General and granted. Then on November 15, 1978,
he Answer for respondents was submitted. After admitting the
factual allegations and stating that they lacked knowledge or
information sufficient to form a belief as to petitioner owning
a Volkswagen Beetle car," they "specifically deny the
allegations and stating they lacked knowledge or information
sufficient to form a belief as to petitioner owning a
Volkswagen Beetle Car, 17 they specifically deny the
allegations in paragraphs X and XI (including its
subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of
Instruction No. 229 as amended by Letters of Instructions Nos.
479 and 716 as well as Land transportation Commission
Administrative Order No. 1 and its Memorandum Circular No.
32 violates the constitutional provisions on due process of law,
equal protection of law and undue delegation of police power,
and that the same are likewise oppressive, arbitrary,
confiscatory, one-sided, onerous, immoral unreasonable and
illegal the truth being that said allegations are without legal
and factual basis and for the reasons alleged in the Special and
Affirmative Defenses of this Answer."18 Unlike petitioner
who contented himself with a rhetorical recital of his litany of
grievances and merely invoked the sacramental phrases of
constitutional litigation, the Answer, in demonstrating that the
assailed Letter of Instruction was a valid exercise of the police
power and implementing rules and regulations of respondent
Edu not susceptible to the charge that there was unlawful
delegation of legislative power, there was in the portion
captioned Special and Affirmative Defenses, a citation of what
respondents believed to be the authoritative decisions of this
Tribunal calling for application. They are Calalang v.
Williams, 19 Morfe v. Mutuc, 20 and Edu v.
Ericta. 21 Reference was likewise made to the 1968 Vienna
Conventions of the United Nations on road traffic, road signs,
and signals, of which the Philippines was a signatory and
which was duly ratified. 22 Solicitor General Mendoza took
pains to refute in detail, in language calm and dispassionate,
the vigorous, at times intemperate, accusation of petitioner
that the assailed Letter of Instruction and the implementing
rules and regulations cannot survive the test of rigorous
scrutiny. To repeat, its highly-persuasive quality cannot be
denied.
This Court thus considered the petition submitted for decision,
the issues being clearly joined. As noted at the outset, it is far
from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the
exercise of the police power. That is conceded by petitioner
and is the main reliance of respondents. It is the submission of
the former, however, that while embraced in such a category,
it has offended against the due process and equal protection
safeguards of the Constitution, although the latter point was
mentioned only in passing. The broad and expansive scope of
the police power which was originally Identified by Chief
Justice Taney of the American Supreme Court in an 1847
decision as "nothing more or less than the powers of
government inherent in every sovereignty" 23 was stressed in
the aforementioned case of Edu v. Ericta thus: "Justice Laurel,
in the first leading decision after the Constitution came into
force, Calalang v. Williams, Identified police power with state
authority to enact legislation that may interfere with personal
liberty or property in order to promote the general welfare.
Persons and property could thus 'be subjected to all kinds of
restraints and burdens in order to we the general comfort,
health and prosperity of the state.' Shortly after independence
in 1948, Primicias v. Fugoso reiterated the doctrine, such a
competence being referred to as 'the power to prescribe
regulations to promote the health, morals, peace, education,
good order or safety, and general welfare of the people. The
concept was set forth in negative terms by Justice Malcolm in
a pre-Commonwealth decision as 'that inherent and plenary
power in the State which enables it to prohibit all things
hurtful to the comfort, safety and welfare of society. In that
sense it could be hardly distinguishable as noted by this Court
in Morfe v. Mutuc with the totality of legislative power. It is
in the above sense the greatest and most powerful at. tribute of
government. It is, to quote Justice Malcolm anew, 'the most
essential, insistent, and at least table powers, I extending as
Justice Holmes aptly pointed out 'to all the great public needs.'
Its scope, ever-expanding to meet the exigencies of the times,
even to anticipate the future where it could be done, provides
enough room for an efficient and flexible response to
conditions and circumstances thus assuring the greatest
benefits. In the language of Justice Cardozo: 'Needs that were
narrow or parochial in the past may be interwoven in the
present with the well-being of the nation. What is critical or
urgent changes with the time.' The police power is thus a
dynamic agency, suitably vague and far from precisely
defined, rooted in the conception that men in organizing the
state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable
an individual citizen or a group of citizens to obstruct
unreasonably the enactment of such salutary measures
calculated to communal peace, safety, good order, and
welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner,
compounded by the fact that the particular police power
measure challenged was clearly intended to promote public
safety. It would be a rare occurrence indeed for this Court to
invalidate a legislative or executive act of that character. None
has been called to our attention, an indication of its being non-
existent. The latest decision in point, Edu v. Ericta, sustained
the validity of the Reflector Law, 25 an enactment conceived
with the same end in view. Calalang v. Williams found
nothing objectionable in a statute, the purpose of which was:
"To promote safe transit upon, and. avoid obstruction on roads
and streets designated as national roads * * *. 26 As a matter
of fact, the first law sought to be nullified after the effectivity
of the 1935 Constitution, the National Defense Act, 27 with
petitioner failing in his quest, was likewise prompted by the
imperative demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of
Instruction and the implementing rules and regulations
becomes even more apparent considering his failure to lay the
necessary factual foundation to rebut the presumption of
validity. So it was held in Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila. 28 The
rationale was clearly set forth in an excerpt from a decision of
Justice Branders of the American Supreme Court, quoted in
the opinion: "The statute here questioned deals with a subject
clearly within the scope of the police power. We are asked to
declare it void on the ground that the specific method of
regulation prescribed is unreasonable and hence deprives the
plaintiff of due process of law. As underlying questions of fact
may condition the constitutionality of legislation of this
character, the presumption of constitutionality must prevail in
the absence of some factual foundation of record in
overthrowing the statute. 29
4. Nor did the Solicitor General as he very well could, rely
solely on such rebutted presumption of validity. As was
pointed out in his Answer "The President certainly had in his
possession the necessary statistical information and data at the
time he issued said letter of instructions, and such factual
foundation cannot be defeated by petitioner's naked assertion
that early warning devices 'are not too vital to the prevention
of nighttime vehicular accidents' because allegedly only 390
or 1.5 per cent of the supposed 26,000 motor vehicle accidents
that in 1976 involved rear-end collisions (p. 12 of petition).
Petitioner's statistics is not backed up by demonstrable data on
record. As aptly stated by this Honorable Court: Further: "It
admits of no doubt therefore that there being a presumption of
validity, the necessity for evidence to rebut it is unavoidable,
unless the statute or ordinance is void on its face, which is not
the case here"' * * *. But even as g the verity of petitioner's
statistics, is that not reason enough to require the installation
of early warning devices to prevent another 390 rear-end
collisions that could mean the death of 390 or more Filipinos
and the deaths that could likewise result from head-on or
frontal collisions with stalled vehicles?" 30 It is quite manifest
then that the issuance of such Letter of Instruction is encased
in the armor of prior, careful study by the Executive
Department. To set it aside for alleged repugnancy to the due
process clause is to give sanction to conjectural claims that
exceeded even the broadest permissible limits of a pleader's
well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of
oppressiveness of this Letter of Instruction was exposed in the
Answer of the Solicitor General thus: "Such early warning
device requirement is not an expensive redundancy, nor
oppressive, for car owners whose cars are already equipped
with 1) blinking lights in the fore and aft of said motor
vehicles,' 2) "battery-powered blinking lights inside motor
vehicles," 3) "built-in reflectorized tapes on front and rear
bumpers of motor vehicles," or 4) "well-lighted two (2)
petroleum lamps (the Kinke) * * * because: Being universal
among the signatory countries to the said 1968 Vienna
Conventions, and visible even under adverse conditions at a
distance of at least 400 meters, any motorist from this country
or from any part of the world, who sees a reflectorized
rectangular early seaming device installed on the roads,
highways or expressways, will conclude, without thinking,
that somewhere along the travelled portion of that road,
highway, or expressway, there is a motor vehicle which is
stationary, stalled or disabled which obstructs or endangers
passing traffic. On the other hand, a motorist who sees any of
the aforementioned other built in warning devices or the
petroleum lamps will not immediately get adequate advance
warning because he will still think what that blinking light is
all about. Is it an emergency vehicle? Is it a law enforcement
car? Is it an ambulance? Such confusion or uncertainty in the
mind of the motorist will thus increase, rather than decrease,
the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional
deficiency go unrefuted in the Answer of the Solicitor General
"There is nothing in the questioned Letter of Instruction No.
229, as amended, or in Administrative Order No. 1, which
requires or compels motor vehicle owners to purchase the
early warning device prescribed thereby. All that is required is
for motor vehicle owners concerned like petitioner, to equip
their motor vehicles with a pair of this early warning device in
question, procuring or obtaining the same from whatever
source. In fact, with a little of industry and practical ingenuity,
motor vehicle owners can even personally make or produce
this early warning device so long as the same substantially
conforms with the specifications laid down in said letter of
instruction and administrative order. Accordingly the early
warning device requirement can neither be oppressive,
onerous, immoral, nor confiscatory, much less does it make
manufacturers and dealers of said devices 'instant millionaires
at the expense of car owners' as petitioner so sweepingly
concludes * * *. Petitioner's fear that with the early warning
device requirement 'a more subtle racket may be committed by
those called upon to enforce it * * * is an unfounded
speculation. Besides, that unscrupulous officials may try to
enforce said requirement in an unreasonable manner or to an
unreasonable degree, does not render the same illegal or
immoral where, as in the instant case, the challenged Letter of
Instruction No. 229 and implementing order disclose none of
the constitutional defects alleged against it.32
7 It does appear clearly that petitioner's objection to this Letter
of Instruction is not premised on lack of power, the
justification for a finding of unconstitutionality, but on the
pessimistic, not to say negative, view he entertains as to its
wisdom. That approach, it put it at its mildest, is distinguished,
if that is the appropriate word, by its unorthodoxy. It bears
repeating "that this Court, in the language of Justice Laurel,
'does not pass upon questions of wisdom justice or expediency
of legislation.' As expressed by Justice Tuason: 'It is not the
province of the courts to supervise legislation and keep it
within the bounds of propriety and common sense. That is
primarily and exclusively a legislative concern.' There can be
no possible objection then to the observation of Justice
Montemayor. 'As long as laws do not violate any
Constitutional provision, the Courts merely interpret and apply
them regardless of whether or not they are wise or salutary.
For they, according to Justice Labrador, 'are not supposed to
override legitimate policy and * * * never inquire into the
wisdom of the law.' It is thus settled, to paraphrase Chief
Justice Concepcion in Gonzales v. Commission on Elections,
that only congressional power or competence, not the wisdom
of the action taken, may be the basis for declaring a statute
invalid. This is as it ought to be. The principle of separation of
powers has in the main wisely allocated the respective
authority of each department and confined its jurisdiction to
such a sphere. There would then be intrusion not allowable
under the Constitution if on a matter left to the discretion of a
coordinate branch, the judiciary would substitute its own. If
there be adherence to the rule of law, as there ought to be, the
last offender should be courts of justice, to which rightly
litigants submit their controversy precisely to maintain
unimpaired the supremacy of legal norms and prescriptions.
The attack on the validity of the challenged provision likewise
insofar as there may be objections, even if valid and cogent on
is wisdom cannot be sustained. 33
8. The alleged infringement of the fundamental principle of
non-delegation of legislative power is equally without any
support well-settled legal doctrines. Had petitioner taken the
trouble to acquaint himself with authoritative pronouncements
from this Tribunal, he would not have the temerity to make
such an assertion. An exempt from the aforecited decision
of Edu v. Ericta sheds light on the matter: "To avoid the taint
of unlawful delegation, there must be a standard, which
implies at the very least that the legislature itself determines
matters of principle and lays down fundamental policy.
Otherwise, the charge of complete abdication may be hard to
repel A standard thus defines legislative policy, marks its
maps out its boundaries and specifies the public agency to
apply it. It indicates the circumstances under which the
legislative command is to be effected. It is the criterion by
which legislative purpose may be carried out. Thereafter, the
executive or administrative office designated may in
pursuance of the above guidelines promulgate supplemental
rules and regulations. The standard may be either express or
implied. If the former, the non-delegation objection is easily
met. The standard though does not have to be spelled out
specifically. It could be implied from the policy and purpose
of the act considered as a whole. In the Reflector Law clearly,
the legislative objective is public safety. What is sought to be
attained as in Calalang v. Williams is "safe transit upon the
roads.' This is to adhere to the recognition given expression by
Justice Laurel in a decision announced not too long after the
Constitution came into force and effect that the principle of
non-delegation "has been made to adapt itself to the
complexities of modern governments, giving rise to the
adoption, within certain limits, of the principle of "subordinate
legislation" not only in the United States and England but in
practically all modern governments.' He continued:
'Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulation, and
the increased difficulty of administering the laws, there is a
constantly growing tendency toward the delegation of greater
powers by the legislature and toward the approval of the
practice by the courts.' Consistency with the conceptual
approach requires the reminder that what is delegated is
authority non-legislative in character, the completeness of the
statute when it leaves the hands of Congress being
assumed." 34
9. The conclusion reached by this Court that this petition must
be dismissed is reinforced by this consideration. The petition
itself quoted these two whereas clauses of the assailed Letter
of Instruction: "[Whereas], the hazards posed by such
obstructions to traffic have been recognized by international
bodies concerned with traffic safety, the 1968 Vienna
Convention on Road Signs and Signals and the United Nations
Organization (U.N.); [Whereas], the said Vionna Convention,
which was ratified by the Philippine Government under P.D.
No. 207, recommended the enactment of local legislation for
the installation of road safety signs and devices; * * * " 35 It
cannot be disputed then that this Declaration of Principle
found in the Constitution possesses relevance: "The
Philippines * * * adopts the generally accepted principles of
international law as part of the law of the land * * *." 36 The
1968 Vienna Convention on Road Signs and Signals is
impressed with such a character. It is not for this country to
repudiate a commitment to which it had pledged its word. The
concept of Pacta sunt servanda stands in the way of such an
attitude, which is, moreover, at war with the principle of
international morality.

10. That is about all that needs be said. The rather court
reference to equal protection did not even elicit any attempt on
the Part of Petitioner to substantiate in a manner clear,
positive, and categorical why such a casual observation should
be taken seriously. In no case is there a more appropriate
occasion for insistence on what was referred to as "the general
rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely,
"that the constitutionality of a law wig not be considered
unless the point is specially pleaded, insisted upon, and
adequately argued." 38 "Equal protection" is not a talismanic
formula at the mere invocation of which a party to a lawsuit
can rightfully expect that success will crown his efforts. The
law is anything but that.

WHEREFORE, this petition is dismissed. The restraining

order is lifted. This decision is immediately executory. No
costs.
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES
COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of
Manila, respondent.
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for
petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:ñé+.£ªwph!1
This Court, in this case of first impression, at least as to some
aspects, is called upon to delineate the boundaries of the
protected area of the cognate rights to free speech and
peaceable assembly, 1 against an alleged intrusion by
respondent Mayor Ramon Bagatsing. Petitioner, retired Justice
JB L. Reyes, on behalf of the Anti-Bases Coalition sought a
permit from the City of Manila to hold a peaceful march and
rally on October 26, 1983 from 2:00 to 5:00 in the afternoon,
starting from the Luneta, a public park, to the gates of the
United States Embassy, hardly two blocks away. Once there,
and in an open space of public property, a short program
would be held. 2 During the course of the oral argument, 3 it
was stated that after the delivery of two brief speeches, a
petition based on the resolution adopted on the last day by the
International Conference for General Disbarmament, World
Peace and the Removal of All Foreign Military Bases held in
Manila, would be presented to a representative of the Embassy
or any of its personnel who may be there so that it may be
delivered to the United States Ambassador. The march would
be attended by the local and foreign participants of such
conference. There was likewise an assurance in the petition
that in the exercise of the constitutional rights to free speech
and assembly, all the necessary steps would be taken by it "to
ensure a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for
writ of preliminary mandatory injunction on October 20, 1983
was due to the fact that as of that date, petitioner had not been
informed of any action taken on his request on behalf of the
organization to hold a rally. On October 25, 1983, the answer
of respondent Mayor was filed on his behalf by Assistant
Solicitor General Eduardo G. Montenegro. 5 It turned out that
on October 19, such permit was denied. Petitioner was
unaware of such a fact as the denial was sent by ordinary mail.
The reason for refusing a permit was due to police intelligence
reports which strongly militate against the advisability of
issuing such permit at this time and at the place applied
for." 6 To be more specific, reference was made to persistent
intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any
assembly or congregations where a large number of people is
expected to attend." 7 Respondent Mayor suggested, however,
in accordance with the recommendation of the police
authorities, that "a permit may be issued for the rally if it is to
be held at the Rizal Coliseum or any other enclosed area
where the safety of the participants themselves and the general
public may be ensured." 8
The oral argument was heard on October 25, 1983, the very
same day the answer was filed. The Court then deliberated on
the matter. That same afternoon, a minute resolution was
issued by the Court granting the mandatory injunction prayed
for on the ground that there was no showing of the existence
of a clear and present danger of a substantive evil that could
justify the denial of a permit. On this point, the Court was
unanimous, but there was a dissent by Justice Aquino on the
ground that the holding of a rally in front of the US Embassy
would be violative of Ordinance No. 7295 of the City of
Manila. The last sentence of such minute resolution reads:
"This resolution is without prejudice to a more extended
opinion." 9 Hence this detailed exposition of the Court's stand
on the matter.
1. It is thus clear that the Court is called upon to protect the
exercise of the cognate rights to free speech and peaceful
assembly, arising from the denial of a permit. The Constitution
is quite explicit: "No law shall be passed abridging the
freedom of speech, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress
of grievances." 10 Free speech, like free press, may be
Identified with the liberty to discuss publicly and truthfully
any matter of public concern without censorship or
punishment. 11 There is to be then no previous restraint on the
communication of views or subsequent liability whether in
libel suits, 12 prosecution for sedition, 13 or action for
damages, 14 or contempt proceedings 15 unless there be a
clear and present danger of a substantive evil that [the State]
has a right to prevent." 16 Freedom of assembly connotes the
right people to meet peaceably for consultation and discussion
of matters Of public concern.17 It is entitled to be accorded
the utmost deference and respect. It is hot to be limited, much
less denied, except on a showing, as 's the case with freedom
of expression, of a clear and present danger of a substantive
evil that the state has a right to prevent. 18 Even prior to the
1935 Constitution, Justice Maicolm had occasion to stress that
it is a necessary consequence of our republican institutions and
complements the right of free speech. 19 To paraphrase
opinion of Justice Rutledge speaking for the majority of
the American Supreme Court Thomas v. Collins, 20 it was not
by accident or coincidence that the right to freedom of speech
and of the press were toupled in a single guarantee with the
and to petition the rights of the people peaceably to assemble
and to petition the government for redress of grievances. All
these rights, while not Identical, are inseparable. the every
case, therefo re there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of
the challenged governmental actuation. The sole justification
for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a
character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate
public interest. 21
2. Nowhere is the rationale that underlies the freedom of
expression and peaceable assembly better expressed than in
this excerpt from an opinion of Justice Frankfurter: "It must
never be forgotten, however, that the Bill of Rights was the
child of the Enlightenment. Back of the guaranty of free
speech lay faith in the power of an appeal to reason by all the
peaceful means for gaining access to the mind. It was in order
to avert force and explosions due to restrictions upon rational
modes of communication that the guaranty of free speech was
given a generous scope. But utterance in a context of violence
can lose its significance as an appeal to reason and become
part of an instrument of force. Such utterance was not meant
to be sheltered by the Constitution." 22 What was rightfully
stressed is the abandonment of reason, the utterance, whether
verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a
safety valve, allowing parties the opportunity to give vent to
their-views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot
be availed of, resort to non-peaceful means may be the only
alternative. Nor is this the sole reason for the expression of
dissent. It means more than just the right to be heard of the
person who feels aggrieved or who is dissatisfied with things
as they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to ensure
a true ferment of Ideas. There are, of course, well-defined
limits. What is guaranteed is peaceable assembly. One may
not advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent. The Constitution frowns
on disorder or tumult attending a rally or assembly. resort to
force is ruled out and outbreaks of violence to be avoided. The
utmost calm though is not required. As pointed out in an early
Philippine case, penned in 1907 to be precise, United States v.
Apurado: 23 "It is rather to be expected that more or less
disorder will mark the public assembly of the people to protest
against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of
excitement, and the greater the grievance and the more intense
the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." 24 It
bears repeating that for the constitutional right to be invoked,
riotous conduct, injury to property, and acts of vandalism must
be avoided, To give free rein to one's destructive urges is to
call for condemnation. It is to make a mockery of the high
estate occupied by intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the existence of a
clear and present danger of a substantive evil, on the choice of
Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v.
CIO: 25 Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public
places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a
citizen of the United States to use the streets and parks for
communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative,
and must be exercised in subordination to the general comfort
and convenience, and in consonance with peace and good
order; but it must not, in the guise of regulation, be abridged
or denied. 26 The above excerpt was quoted with approval in
Primicias v. Fugoso. 27 Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas," 28 a 1915
decision, where this Court categorically affirmed that plazas or
parks and streets are outside the commerce of man and thus
nullified a contract that leased Plaza Soledad of plaintiff-
municipality. Reference was made to such plaza "being a
promenade for public use," 29 which certainly is not the only
purpose that it could serve. To repeat, there can be no valid
reason why a permit should not be granted for the or oposed
march and rally starting from a public dark that is the Luneta.
4. Neither can there be any valid objection to the use of the
streets, to the gates of the US Embassy, hardly two block-
away at the Roxas Boulevard. Primicias v. Fugoso has
resolved any lurking doubt on the matter. In holding that the
then Mayor Fugoso of the City of Manila should grant a
permit for a public meeting at Plaza Miranda in Quiapo, this
Court categorically declared: "Our conclusion finds support in
the decision in the case of Willis Cox vs. State of New
Hampshire, 312 U.S., 569. In that case, the statute of New
Hampshire P. L. chap. 145, section 2, providing that 'no
parade or procession upon any ground abutting thereon, shall
'De permitted unless a special license therefor shall first be
explained from the selectmen of the town or from licensing
committee,' was construed by the Supreme Court of New
Hampshire as not conferring upon the licensing board
unfettered discretion to refuse to grant the license, and held
valid. And the Supreme Court of the United States, in its
decision (1941) penned by Chief Justice Hughes affirming the
judgment of the State Supreme Court, held that 'a statute
requiring persons using the public streets for a parade or
procession to procure a special license therefor from the local
authorities is not an unconstitutional abridgment of the rights
of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing
authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience
and of affording an opportunity to provide proper policing,
and are not invested with arbitrary discretion to issue or refuse
license, ... " 30 Nor should the point made by Chief Justice
Hughes in a subsequent portion of the opinion be ignored,
"Civil liberties, as guaranteed by the Constitution, imply the
existence of an organized society maintaining public order
without which liberty itself would be lost in the excesses of
unrestricted abuses. The authority of a municipality to impose
regulations in order to assure the safety and convenience of
the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of
the means of safeguarding the good order upon which they
ultimately depend. The control of travel on the streets of cities
is the most familiar illustration of this recognition of social
need. Where a restriction of the use of highways in that
relation is designed to promote the public convenience in the
interest of all, it cannot be disregarded by the attempted
exercise of some civil right which in other circumstances
would be entitled to protection." 31
5. There is a novel aspect to this case, If the rally were
confined to Luneta, no question, as noted, would have arisen.
So, too, if the march would end at another park. As previously
mentioned though, there would be a short program upon
reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. That would be followed
by the handing over of a petition based on the resolution
adopted at the closing session of the Anti-Bases Coalition. The
Philippines is a signatory of the Vienna Convention on
Diplomatic Relations adopted in 1961. It was concurred in by
the then Philippine Senate on May 3, 1965 and the instrument
of ratification was signed by the President on October 11,
1965, and was thereafter deposited with the Secretary General
of the United Nations on November 15. As of that date then, it
was binding on the Philippines. The second paragraph of the
Article 22 reads: "2. The receiving State is under a special
duty to take appropriate steps to protect the premises of the
mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its
dignity. " 32 The Constitution "adopts the generally accepted
principles of international law as part of the law of the land.
..." 33 To the extent that the Vienna Convention is a
restatement of the generally accepted principles of
international law, it should be a part of the law of the
land. 34 That being the case, if there were a clear and present
danger of any intrusion or damage, or disturbance of the peace
of the mission, or impairment of its dignity, there would be a
justification for the denial of the permit insofar as the terminal
point would be the Embassy. Moreover, respondent Mayor
relied on Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations
within a radius of five hundred (500) feet from any foreign
mission or chancery and for other purposes. Unless the
ordinance is nullified, or declared ultra vires, its invocation as
a defense is understandable but not decisive, in view of the
primacy accorded the constitutional rights of free speech and
peaceable assembly. Even if shown then to be applicable, that
question the confronts this Court.
6. There is merit to the observation that except as to the novel
aspects of a litigation, the judgment must be confined within
the limits of previous decisions. The law declared on past
occasions is, on the whole, a safe guide, So it has been here.
Hence, as noted, on the afternoon of the hearing, October 25,
1983, this Court issued the minute resolution granting the
mandatory injunction allowing the proposed march and rally
scheduled for the next day. That conclusion was inevitable ill
the absence of a clear and present danger of a substantive, evil
to a legitimate public interest. There was no justification then
to deny the exercise of the constitutional rights of tree speech
and peaceable assembly. These rights are assured by our
Constitution and the Universal Declaration of Human
Rights. 35 The participants to such assembly, composed
primarily of those in attendance at the International
Conference for General Disbarmament, World Peace and the
Removal of All Foreign Military Bases would start from the
Luneta. proceeding through Roxas Boulevard to the gates of
the United States Embassy located at the same street. To
repeat, it is settled law that as to public places, especially so as
to parks and streets, there is freedom of access. Nor is their
use dependent on who is the applicant for the permit, whether
an individual or a group. If it were, then the freedom of access
becomes discriminatory access, giving rise to an equal
protection question. The principle under American doctrines
was given utterance by Chief Justice Hughes in these words:
"The question, if the rights of free speech and peaceable
assembly are to be preserved, is not as to the auspices under
which the meeting is held but as to its purpose; not as to The
relations of the speakers, but whether their utterances
transcend the bounds of the freedom of speech which the
Constitution protects." 36 There could be danger to public
peace and safety if such a gathering were marked by
turbulence. That would deprive it of its peaceful character.
Even then, only the guilty parties should be held accountable.
It is true that the licensing official, here respondent Mayor, is
not devoid of discretion in determining whether or not a
permit would be granted. It is not, however, unfettered
discretion. While prudence requires that there be a realistic
appraisal not of what may possibly occur but of what
may probably occur, given all the relevant circumstances, still
the assumption — especially so where the assembly is
scheduled for a specific public — place is that the permit must
be for the assembly being held there. The exercise of such a
right, in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be "abridged on the plea
that it may be exercised in some other place." 37
7. In fairness to respondent Mayor, he acted on the belief
that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang
Pilipino (PMP.) v. Bagatsing, 39 called for application. While
the General rule is that a permit should recognize the right of
the applicants to hold their assembly at a public place of their
choice, another place may be designated by the licensing
authority if it be shown that there is a clear and present danger
of a substantive evil if no such change were made. In the
Navarro and the Pagkakaisa decisions, this Court was
persuaded that the clear and present danger test was satisfied.
The present situation is quite different. Hence the decision
reached by the Court. The mere assertion that subversives may
infiltrate the ranks of the demonstrators does not suffice. Not
that it should be overlooked. There was in this case, however,
the assurance of General Narciso Cabrera, Superintendent,
Western Police District, Metropolitan Police Force, that the
police force is in a position to cope with such emergency
should it arise That is to comply with its duty to extend
protection to the participants of such peaceable assembly. Also
from him came the commendable admission that there were the embassy gate is less than 500 feet. Even if it could be
the least five previous demonstrations at the Bayview hotel shown that such a condition is satisfied. it does not follow that
Area and Plaza Ferguson in front of the United States respondent Mayor could legally act the way he did. The
Embassy where no untoward event occurred. It was made validity of his denial of the permit sought could still be
clear by petitioner, through counsel, that no act offensive to challenged. It could be argued that a case of unconstitutional
the dignity of the United States Mission in the Philippines application of such ordinance to the exercise of the right of
would take place and that, as mentioned at the outset of this peaceable assembly presents itself. As in this case there was
opinion, "all the necessary steps would be taken by it 'to no proof that the distance is less than 500 feet, the need to pass
ensure a peaceful march and rally.' " 40 Assistant Solicitor on that issue was obviated, Should it come, then the
General Montenegro expressed the view that the presence of qualification and observation of Justices Makasiar and Plana
policemen may in itself be a provocation. It is a sufficient certainly cannot be summarily brushed aside. The high estate
answer that they should stay at a discreet distance, but ever accorded the rights to free speech and peaceable assembly
ready and alert to cope with any contingency. There is no need demands nothing less.
to repeat what was pointed out by Chief Justice Hughes in Cox
that precisely, it is the duty of the city authorities to provide 10. Ordinarily, the remedy in cases of this character is to set
the proper police protection to those exercising their right to aside the denial or the modification of the permit sought and
peaceable assembly and freedom of expression. order the respondent official, to grant it. Nonetheless, as there
was urgency in this case, the proposed march and rally being
8. By way of a summary The applicants for a permit to hold an scheduled for the next day after the hearing, this Court. in the
assembly should inform the licensing authority of the date, the exercise of its conceded authority, granted the mandatory
public place where and the time when it will take place. If it injunction in the resolution of October 25, 1983. It may be
were a private place, only the consent of the owner or the one noted that the peaceful character of the peace march and rally
entitled to its legal possession is required. Such application on October 26 was not marred by any untoward incident. So it
should be filed well ahead in time to enable the public official has been in other assemblies held elsewhere. It is quite
concerned to appraise whether there may be valid objections reassuring such that both on the part of the national
to the grant of the permit or to its grant but at another public government and the citizens, reason and moderation have
place. It is an indispensable condition to such refusal or prevailed. That is as it should be.
modification that the clear and present danger test be the
standard for the decision reached. If he is of the view that WHEREFORE, the mandatory injunction prayed for is
there is such an imminent and grave danger of a substantive granted. No costs.
evil, the applicants must be heard on the matter. Thereafter,
his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so
minded, then, can have recourse to the proper judicial
authority. Free speech and peaceable assembly, along with the
other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on
the judiciary, — even more so than on the other departments
— rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal
formula, no sanctifying phrase can, of course, dispense with
what has been so felicitiously termed by Justice Holmes "as
the sovereign prerogative of judgment." Nonetheless, the
presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do
precedence and primacy. Clearly then, to the extent that there
may be inconsistencies between this resolution and that
of Navarro v. Villegas, that case is pro tanto modified. So it
was made clear in the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of

Ordinance No. 7295 of the City of Manila prohibiting the
holding or staging of rallies or demonstrations within a radius
of five hundred (500) feet from any foreign mission or
chancery and for other purposes. It is to be admitted that it
finds support In the previously quoted Article 22 of the
Vienna Convention on Diplomatic Relations. There was no
showing, however, that the distance between the chancery and
G.R. No. 173034 October 9, 2007
PHARMACEUTICAL AND HEALTH CARE
ASSOCIATION OF THE PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III;
HEALTH UNDER SECRETARIES DR. ETHELYN P.
NIETO, DR. MARGARITA M. GALON, ATTY.
ALEXANDER A. PADILLA, & DR. JADE F. DEL
MUNDO; and ASSISTANT SECRETARIES DR. MARIO C.
VILLAVERDE, DR. DAVID J. LOZADA, AND DR.
NEMESIO T. GAKO,respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the
best nourishment for an infant is mother's milk. There is
nothing greater than for a mother to nurture her beloved child
straight from her bosom. The ideal is, of course, for each and
every Filipino child to enjoy the unequaled benefits of
breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of
the Rules of Court, seeking to nullify Administrative Order
(A.O.) No. 2006-0012 entitled, Revised Implementing Rules
and Regulations of Executive Order No. 51, Otherwise Known
as The "Milk Code," Relevant International Agreements,
Penalizing Violations Thereof, and for Other
Purposes (RIRR). Petitioner posits that the RIRR is not valid
as it contains provisions that are not constitutional and go
beyond the law it is supposed to implement.
Named as respondents are the Health Secretary,
Undersecretaries, and Assistant Secretaries of the Department
of Health (DOH). For purposes of herein petition, the DOH is
deemed impleaded as a co-respondent since respondents
issued the questioned RIRR in their capacity as officials of
said executive agency.1
Executive Order No. 51 (Milk Code) was issued by President
Corazon Aquino on October 28, 1986 by virtue of the
legislative powers granted to the president under the Freedom
Constitution. One of the preambular clauses of the Milk Code
states that the law seeks to give effect to Article 112 of the
International Code of Marketing of Breastmilk Substitutes
(ICMBS), a code adopted by the World Health Assembly
(WHA) in 1981. From 1982 to 2006, the WHA adopted
several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be
ensured that nutrition and health claims are not permitted for
breastmilk substitutes.
In 1990, the Philippines ratified the International Convention
on the Rights of the Child. Article 24 of said instrument
provides that State Parties should take appropriate measures to
diminish infant and child mortality, and ensure that all
segments of society, specially parents and children, are
informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR
which was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its
members that are manufacturers of breastmilk substitutes,
filed the present Petition for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order
(TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents
officers of the DOH acted without or in excess of jurisdiction,
or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and in violation of the provisions of the
Constitution in promulgating the RIRR.3
On August 15, 2006, the Court issued a Resolution granting a
TRO enjoining respondents from implementing the questioned
RIRR.
After the Comment and Reply had been filed, the Court set the
case for oral arguments on June 19, 2007. The Court issued an
Advisory (Guidance for Oral Arguments) dated June 5, 2007,
to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the
Revised Implementing Rules and Regulations (RIRR) issued
by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of
Executive Order No. 51 (Milk Code);
2.2 Whether pertinent international agreements1 entered into
by the Philippines are part of the law of the land and may be
implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the
international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR
violate the due process clause and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides
sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child;
(2) the WHO and Unicef "2002 Global Strategy on Infant and
Young Child Feeding;" and (3) various World Health
Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute
this case as the real party-in-interest, the Court adopts the view
enunciated in Executive Secretary v. Court of Appeals,4 to
wit:
The modern view is that an association has standing to
complain of injuries to its members. This view fuses the legal
identity of an association with that of its members. An
association has standing to file suit for its workers despite its
lack of direct interest if its members are affected by the action.
An organization has standing to assert the concerns of its
constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the
respondent was organized x x x to act as the representative of
any individual, company, entity or association on matters
related to the manpower recruitment industry, and to perform
other acts and activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the appropriate
party to assert the rights of its members, because it and its
members are in every practical sense identical. x x x The
respondent [association] is but the medium through which its
individual members seek to make more effective the
expression of their voices and the redress of their
grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association,
Inc. v. Yuipco,6 where the Court ruled that an association has
the legal personality to represent its members because the
results of the case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation
contains a similar provision just like in Executive Secretary,
that the association is formed "to represent directly or through
approved representatives the pharmaceutical and health care
industry before the Philippine Government and any of its
agencies, the medical professions and the general
public."8 Thus, as an organization, petitioner definitely has an
interest in fulfilling its avowed purpose of representing
members who are part of the pharmaceutical and health care
industry. Petitioner is duly authorized9 to take the appropriate
course of action to bring to the attention of government
agencies and the courts any grievance suffered by its members
which are directly affected by the RIRR. Petitioner, which is
mandated by its Amended Articles of Incorporation to
represent the entire industry, would be remiss in its duties if it
fails to act on governmental action that would affect any of its
industry members, no matter how few or numerous they are.
Hence, petitioner, whose legal identity is deemed fused with
its members, should be considered as a real party-in-interest
which stands to be benefited or injured by any judgment in the
present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international
instruments adverted to by respondents are part of the law of
the land.
Petitioner assails the RIRR for allegedly going beyond the
provisions of the Milk Code, thereby amending and expanding
the coverage of said law. The defense of the DOH is that the
RIRR implements not only the Milk Code but also various
international instruments10 regarding infant and young child
nutrition. It is respondents' position that said international
instruments are deemed part of the law of the land and
therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments
invoked by respondents, namely: (1) The United Nations
Convention on the Rights of the Child; (2) The International
Covenant on Economic, Social and Cultural Rights; and (3)
the Convention on the Elimination of All Forms of
Discrimination Against Women, only provide in general terms
that steps must be taken by State Parties to diminish infant and
child mortality and inform society of the advantages of
breastfeeding, ensure the health and well-being of families,
and ensure that women are provided with services and
nutrition in connection with pregnancy and lactation. Said
instruments do not contain specific provisions regarding the
use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions
regarding breastmilk substitutes are the ICMBS and various
WHA Resolutions.
Under the 1987 Constitution, international law can become
part of the sphere of domestic law either
by transformation or incorporation.11 The transformation
method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as
local legislation. The incorporation method applies when, by
mere constitutional declaration, international law is deemed to
have the force of domestic law.12
Treaties become part of the law of the land
through transformation pursuant to Article VII, Section 21 of
the Constitution which provides that "[n]o treaty or
international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the
Senate." Thus, treaties or conventional international law must
go through a process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to
domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they
have not been concurred in by at least two-thirds of all
members of the Senate as required under Section 21, Article
VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in
1981 had been transformed into domestic law through local
legislation, the Milk Code. Consequently, it is the Milk Code
that has the force and effect of law in this jurisdiction and not
the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the
ICMBS, but it is well to emphasize at this point that the Code
did not adopt the provision in the ICMBS absolutely
prohibiting advertising or other forms of promotion to the
general public of products within the scope of the ICMBS.
Instead, the Milk Code expressly provides that advertising,
promotion, or other marketing materials may be allowed if
such materials are duly authorized and approved by the Inter-
Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987
Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument
of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation and
amity with all nations. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue
of the incorporation clause of the Constitution, form part of
the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the
combination [of] two elements: the established, widespread,
and consistent practice on the part of States; and a
psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law requiring
it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to
norms of general or customary international law which are
binding on all states,17 i.e., renunciation of war as an
instrument of national policy, the principle of sovereign
immunity,18 a person's right to life, liberty and due
process,19 and pacta sunt servanda,20 among others. The
concept of "generally accepted principles of law" has also
been depicted in this wise:
Some legal scholars and judges look upon certain "general
principles of law" as a primary source of international law
because they have the "character of jus rationale" and are
"valid through all kinds of human societies."(Judge Tanaka in
his dissenting opinion in the 1966 South West Africa Case,
1966 I.C.J. 296). O'Connell holds that certain priniciples are
part of international law because they are "basic to legal
systems generally" and hence part of the jus gentium. These
principles, he believes, are established by a process of
reasoning based on the common identity of all legal systems.
If there should be doubt or disagreement, one must look to
state practice and determine whether the municipal law
principle provides a just and acceptable solution. x x
x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as
follows:
Custom or customary international law means "a general and
consistent practice of states followed by them from a sense of
legal obligation [opinio juris]." (Restatement) This statement
contains the two basic elements of custom: the material factor,
that is, how states behave, and the psychological or subjective
factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is
the actual behavior of states. This includes several elements:
duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More
important is the consistency and the generality of the practice.
xxx
xxxx
Once the existence of state practice has been established, it
becomes necessary to determine why states behave the way
they do. Do states behave the way they do because they
consider it obligatory to behave thus or do they do it only as a
matter of courtesy? Opinio juris, or the belief that a certain
form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not
law.22(Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated
into our domestic system.23
WHA Resolutions have not been embodied in any local
legislation. Have they attained the status of customary law and
should they then be deemed incorporated as part of the law of
the land?
The World Health Organization (WHO) is one of the
international specialized agencies allied with the United
Nations (UN) by virtue of Article 57,24 in relation to Article
6325 of the UN Charter. Under the 1946 WHO Constitution, it
is the WHA which determines the policies of the WHO,26 and
has the power to adopt regulations concerning "advertising
and labeling of biological, pharmaceutical and similar
products moving in international commerce,"27and to "make
recommendations to members with respect to any matter
within the competence of the Organization."28 The legal
effect of its regulations, as opposed to recommendations, is
quite different.
Regulations, along with conventions and agreements, duly
adopted by the WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt
conventions or agreements with respect to any matter within
the competence of the Organization. A two-thirds vote of the
Health Assembly shall be required for the adoption of
such conventions or agreements, which shall come into force
for each Member when accepted by it in accordance with its
constitutional processes.
Article 20. Each Member undertakes that it will, within
eighteen months after the adoption by the Health Assembly of
a convention or agreement, take action relative to the
acceptance of such convention or agreement. Each Member
shall notify the Director-General of the action taken, and if it
does not accept such convention or agreement within the time
limit, it will furnish a statement of the reasons for non-
acceptance. In case of acceptance, each Member agrees to
make an annual report to the Director-General in accordance
with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt
regulations concerning: (a) sanitary and quarantine
requirements and other procedures designed to prevent the
international spread of disease; (b) nomenclatures with respect
to diseases, causes of death and public health practices; (c)
standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety,
purity and potency of biological, pharmaceutical and similar
products moving in international commerce; (e) advertising
and labeling of biological, pharmaceutical and similar
products moving in international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall
come into force for all Members after due notice has been
given of their adoption by the Health Assembly except for
such Members as may notify the Director-General of rejection
or reservations within the period stated in the
notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the
WHA do not come into force for members, in the same way
that conventions or agreements under Article 19
and regulations under Article 21 come into force. Article 23 of
the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter
within the competence of the Organization. (Emphasis
supplied)
The absence of a provision in Article 23 of any mechanism by
which the recommendation would come into force for member
states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber,
stated that WHA recommendations are generally not binding,
but they "carry moral and political weight, as they constitute
the judgment on a health issue of the collective membership of
the highest international body in the field of health."29 Even
the ICMBS itself was adopted as a mere recommendation, as
WHA Resolution No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in
the sense of Article 23 of the Constitution, the International
Code of Marketing of Breastmilk Substitutes annexed to the
present resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health
Organization at its sixty-seventh session, considered the fourth
draft of the code, endorsed it, and unanimously recommended
to the Thirty-fourth World Health Assembly the text of a
resolution by which it would adopt the code in the form of a
recommendation rather than a regulation. x x x (Emphasis
supplied)
The legal value of WHA Resolutions as recommendations is
summarized in Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken
with respect to recommendations made to it by the
Organization, and with respect to conventions, agreements and
regulations.
Apparently, the WHA Resolution adopting the ICMBS and
subsequent WHA Resolutions urging member states to
implement the ICMBS are merely recommendatory and
legally non-binding. Thus, unlike what has been done with the
ICMBS whereby the legislature enacted most of the provisions
into law which is the Milk Code, the subsequent WHA
Resolutions,30 specifically providing for exclusive
breastfeeding from 0-6 months, continued breastfeeding up to
24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted as
a domestic law.
It is propounded that WHA Resolutions may constitute "soft
law" or non-binding norms, principles and practices that
influence state behavior.31
"Soft law" does not fall into any of the categories of
international law set forth in Article 38, Chapter III of the
1946 Statute of the International Court of Justice.32 It is,
however, an expression of non-binding norms, principles, and
practices that influence state behavior.33 Certain declarations
and resolutions of the UN General Assembly fall under this
category.34 The most notable is the UN Declaration of Human
Rights, which this Court has enforced in various cases,
specifically, Government of Hongkong Special Administrative
Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares
v. Rañada37 and Shangri-la International Hotel Management,
Ltd. v. Developers Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a
specialized agency attached to the UN with the mandate to
promote and protect intellectual property worldwide, has
resorted to soft law as a rapid means of norm creation, in order
"to reflect and respond to the changing needs and demands of
its constituents."39 Other international organizations which
have resorted to soft law include the International Labor
Organization and the Food and Agriculture Organization (in
the form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the
time of the Severe Acute Respiratory Syndrome (SARS) and
Avian flu outbreaks.
Although the IHR Resolution does not create new
international law binding on WHO member states, it provides
an excellent example of the power of "soft law" in
international relations. International lawyers typically
distinguish binding rules of international law-"hard law"-from
non-binding norms, principles, and practices that influence
state behavior-"soft law." WHO has during its existence
generated many soft law norms, creating a "soft law regime"
in international governance for public health.
The "soft law" SARS and IHR Resolutions represent
significant steps in laying the political groundwork for
improved international cooperation on infectious diseases.
These resolutions clearly define WHO member states'
normative duty to cooperate fully with other countries and
with WHO in connection with infectious disease surveillance
and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake
of the SARS epidemic, the duty is powerful politically for two
reasons. First, the SARS outbreak has taught the lesson that
participating in, and enhancing, international cooperation on
infectious disease controls is in a country's self-interest x x x if
this warning is heeded, the "soft law" in the SARS and IHR
Resolution could inform the development of general and
consistent state practice on infectious disease surveillance and
outbreak response, perhaps crystallizing eventually into
customary international law on infectious disease prevention
and control.41
In the Philippines, the executive department implemented
certain measures recommended by WHO to address the
outbreaks of SARS and Avian flu by issuing Executive Order
(E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on
February 2, 2004, delegating to various departments broad
powers to close down schools/establishments, conduct health
surveillance and monitoring, and ban importation of poultry
and agricultural products.
It must be emphasized that even under such an international
emergency, the duty of a state to implement the IHR
Resolution was still considered not binding or enforceable,
although said resolutions had great political influence.
As previously discussed, for an international rule to be
considered as customary law, it must be established that such
rule is being followed by states because they consider it
obligatory to comply with such rules (opinio juris).
Respondents have not presented any evidence to prove that the
WHA Resolutions, although signed by most of the member
states, were in fact enforced or practiced by at least a majority
of the member states; neither have respondents proven that
any compliance by member states with said WHA Resolutions
was obligatory in nature.
Respondents failed to establish that the provisions of pertinent
WHA Resolutions are customary international law that may be
deemed part of the law of the land.
Consequently, legislation is necessary to transform the
provisions of the WHA Resolutions into domestic law. The
provisions of the WHA Resolutions cannot be considered as
part of the law of the land that can be implemented by
executive agencies without the need of a law enacted by the
legislature.
Second, the Court will determine whether the DOH may
implement the provisions of the WHA Resolutions by virtue
of its powers and functions under the Revised Administrative
Code even in the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative
Code of 1987 provides that the DOH shall define the national
health policy and implement a national health plan within the
framework of the government's general policies and plans,
and issue orders and regulations concerning the
implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on
advertising and other forms of promotion of breastmilk
substitutes provided in some WHA Resolutions has been
adopted as part of the national health policy.
Respondents submit that the national policy on infant and
young child feeding is embodied in A.O. No. 2005-0014,
dated May 23, 2005. Basically, the Administrative Order
declared the following policy guidelines: (1) ideal
breastfeeding practices, such as early initiation of
breastfeeding, exclusive breastfeeding for the first six months,
extended breastfeeding up to two years and beyond; (2)
appropriate complementary feeding, which is to start at age six
months; (3) micronutrient supplementation; (4) universal salt
iodization; (5) the exercise of other feeding options; and (6)
feeding in exceptionally difficult circumstances. Indeed, the
primacy of breastfeeding for children is emphasized as a
national health policy. However, nowhere in A.O. No. 2005-
0014 is it declared that as part of such health policy, the
advertisement or promotion of breastmilk substitutes should
be absolutely prohibited.
The national policy of protection, promotion and support of
breastfeeding cannot automatically be equated with a total ban
on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not
contain a total ban on the advertising and promotion of
breastmilk substitutes, but instead, specifically creates an IAC
which will regulate said advertising and promotion, it follows
that a total ban policy could be implemented only pursuant to
a law amending the Milk Code passed by the constitutionally
authorized branch of government, the legislature.
Thus, only the provisions of the Milk Code, but not those of
subsequent WHA Resolutions, can be validly implemented by
the DOH through the subject RIRR.
Third, the Court will now determine whether the provisions of
the RIRR are in accordance with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the
Milk Code, petitioner alleges the following:
1. The Milk Code limits its coverage to children 0-12 months
old, but the RIRR extended its coverage to "young children"
or those from ages two years old and beyond:
2. The Milk Code recognizes that infant formula may be a
proper and possible substitute for breastmilk in certain
instances; but the RIRR provides "exclusive breastfeeding for
infants from 0-6 months" and declares that "there is no
substitute nor replacement for breastmilk":
3. The Milk Code only regulates and does not impose
unreasonable requirements for advertising and promotion;
RIRR imposes an absolute ban on such activities for
breastmilk substitutes intended for infants from 0-24 months
old or beyond, and forbids the use of health and nutritional
claims. Section 13 of the RIRR, which provides for a "total
effect" in the promotion of products within the scope of the
Code, is vague:
5. The Milk Code allows dissemination of information on
infant formula to health professionals; the RIRR totally
prohibits such activity:
6. The Milk Code permits milk manufacturers and distributors
to extend assistance in research and continuing education of
health professionals; RIRR absolutely forbids the same.
7. The Milk Code regulates the giving of donations; RIRR
absolutely prohibits it.
8. The RIRR provides for administrative sanctions not
imposed by the Milk Code.
9. The RIRR provides for repeal of existing laws to the
contrary.
The Court shall resolve the merits of the allegations of
petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's
coverage is limited only to children 0-12 months old. Section
3 of the Milk Code states:
SECTION 3. Scope of the Code – The Code applies to the
marketing, and practices related thereto, of the following
products: breastmilk substitutes, including infant formula;
other milk products, foods and beverages, including bottle-fed
complementary foods, when marketed or otherwise
represented to be suitable, with or without modification, for
use as a partial or total replacement of breastmilk; feeding
bottles and teats. It also applies to their quality and
availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the
age of the child but on the kind of product being marketed to
the public. The law treats infant formula, bottle-fed
complementary food, and breastmilk substitute as separate and
distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a
breastmilk substitute x x x to satisfy the normal nutritional
requirements of infants up to between four to six months of
age, and adapted to their physiological characteristics"; while
under Section 4(b), bottle-fed complementary food refers to
"any food, whether manufactured or locally prepared, suitable
as a complement to breastmilk or infant formula, when either
becomes insufficient to satisfy the nutritional requirements of
the infant." An infant under Section 4(e) is a person falling
within the age bracket 0-12 months. It is the nourishment of
this group of infants or children aged 0-12 months that is
sought to be promoted and protected by the Milk Code.
But there is another target group. Breastmilk substitute is
defined under Section 4(a) as "any food being marketed or
otherwise presented as a partial or total replacement for
breastmilk, whether or not suitable for that purpose." This
section conspicuously lacks reference to any particular age-
group of children. Hence, the provision of the Milk Code
cannot be considered exclusive for children aged 0-12 months.
In other words, breastmilk substitutes may also be intended for
young children more than 12 months of age. Therefore, by
regulating breastmilk substitutes, the Milk Code also intends
to protect and promote the nourishment of children more than
12 months old.
Evidently, as long as what is being marketed falls within the
scope of the Milk Code as provided in Section 3, then it can be
subject to regulation pursuant to said law, even if the product
is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections
242 and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike
the Milk Code, does not recognize that breastmilk substitutes
may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions
thereof, must be considered and construed together. As held
in De Luna v. Pascual,44 "[t]he particular words, clauses and
phrases in the Rule should not be studied as detached and
isolated expressions, but the whole and every part thereof
must be considered in fixing the meaning of any of its parts
and in order to produce a harmonious whole."
Section 7 of the RIRR provides that "when medically
indicated and only when necessary, the use of breastmilk
substitutes is proper if based on complete and updated
information." Section 8 of the RIRR also states that
information and educational materials should include
information on the proper use of infant formula when the use
thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that
in certain cases, the use of breastmilk substitutes may be
proper.
3. The Court shall ascertain the merits of allegations 345 and
446 together as they are interlinked with each other.
To resolve the question of whether the labeling requirements
and advertising regulations under the RIRR are valid, it is
important to deal first with the nature, purpose, and depth of
the regulatory powers of the DOH, as defined in general under
the 1987 Administrative Code,47 and as delegated in
particular under the Milk Code.
Health is a legitimate subject matter for regulation by the
DOH (and certain other administrative agencies) in exercise of
police powers delegated to it. The sheer span of jurisprudence
on that matter precludes the need to further discuss
it..48 However, health information, particularly advertising
materials on apparently non-toxic products like breastmilk
substitutes and supplements, is a relatively new area for
regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the
Philippine Islands,50 health information was already within
the ambit of the regulatory powers of the predecessor of
DOH.51 Section 938 thereof charged it with the duty to
protect the health of the people, and vested it with such
powers as "(g) the dissemination of hygienic information
among the people and especially the inculcation of knowledge
as to the proper care of infants and the methods of preventing
and combating dangerous communicable diseases."
Seventy years later, the 1987 Administrative Code tasked
respondent DOH to carry out the state policy pronounced
under Section 15, Article II of the 1987 Constitution, which is
"to protect and promote the right to health of the people
and instill health consciousness among them."52 To that end,
it was granted under Section 3 of the Administrative Code the
power to "(6) propagate health information and educate the
population on important health, medical and environmental
matters which have health implications."53
When it comes to information regarding nutrition of infants
and young children, however, the Milk Code specifically
delegated to the Ministry of Health (hereinafter referred to as
DOH) the power to ensure that there is adequate, consistent
and objective information on breastfeeding and use of
breastmilk substitutes, supplements and related products; and
the power to control such information. These are expressly
provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring –
xxxx
(b) The Ministry of Health shall be principally responsible for
the implementation and enforcement of the provisions of this
Code. For this purpose, the Ministry of Health shall have the
following powers and functions:
(1) To promulgate such rules and regulations as are necessary
or proper for the implementation of this Code and the
accomplishment of its purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may be
necessary for or incidental to the attainment of the purposes
and objectives of this Code.
SECTION 5. Information and Education –
(a) The government shall ensure that objective and
consistent information is provided on infant feeding, for use
by families and those involved in the field of infant nutrition.
This responsibility shall cover the planning, provision, design
and dissemination of information, and the control thereof, on
infant nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the
content of any information on breastmilk vis-à-visbreastmilk
substitutes, supplement and related products, in the following
manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written,
audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: (1)
the benefits and superiority of breastfeeding; (2) maternal
nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of
introducing partial bottlefeeding; (4) the difficulty of reversing
the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain
information about the use of infant formula, they shall include
the social and financial implications of its use; the health
hazards of inappropriate foods or feeding methods; and, in
particular, the health hazards of unnecessary or improper use
of infant formula and other breastmilk substitutes. Such
materials shall not use any picture or text which may idealize
the use of breastmilk substitutes.
SECTION 8. Health Workers –
xxxx
(b) Information provided by manufacturers and distributors to
health professionals regarding products within the scope of
this Code shall be restricted to scientific and factual matters,
and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall
also include the information specified in Section 5(b).
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the
necessary information about the appropriate use of the
products, and in such a way as not to discourage
breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms
shall not be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the
information and to whom such information may be
disseminated under Sections 6 through 9 of the Milk
Code54 to ensure that the information that would reach
pregnant women, mothers of infants, and health professionals
and workers in the health care system is restricted to scientific
and factual matters and shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the
Milk Code to control information regarding breastmilk vis-a-
vis breastmilk substitutes is not absolute as the power to
control does not encompass the power to absolutely prohibit
the advertising, marketing, and promotion of breastmilk
substitutes.
The following are the provisions of the Milk Code that
unequivocally indicate that the control over information given
to the DOH is not absolute and that absolute prohibition is not
contemplated by the Code:
a) Section 2 which requires adequate information and
appropriate marketing and distribution of breastmilk
substitutes, to wit:
SECTION 2. Aim of the Code – The aim of the Code is to
contribute to the provision of safe and adequate nutrition for
infants by the protection and promotion of breastfeeding and
by ensuring the proper use of breastmilk substitutes and
breastmilk supplements when these are necessary, on the basis
of adequate information and through appropriate marketing
and distribution.
b) Section 3 which specifically states that the Code applies to
the marketing of and practices related to breastmilk
substitutes, including infant formula, and to information
concerning their use;
c) Section 5(a) which provides that the government shall
ensure that objective and consistent information is provided on
infant feeding;
d) Section 5(b) which provides that written, audio or visual
informational and educational materials shall not use any
picture or text which may idealize the use of breastmilk
substitutes and should include information on the health
hazards of unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and
empowers the IAC to review and examine advertising,
promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide
information to health professionals but such information
should be restricted to factual and scientific matters and shall
not imply or create a belief that bottlefeeding is equivalent or
superior to breastfeeding; and
g) Section 10 which provides that containers or labels should
not contain information that would discourage breastfeeding
and idealize the use of infant formula.
It is in this context that the Court now examines the assailed
provisions of the RIRR regarding labeling and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the
RIRR contain some labeling requirements, specifically: a) that
there be a statement that there is no substitute to breastmilk;
and b) that there be a statement that powdered infant formula
may contain pathogenic microorganisms and must be prepared
and used appropriately. Section 1657of the RIRR prohibits all
health and nutrition claims for products within the scope of the
Milk Code, such as claims of increased emotional and
intellectual abilities of the infant and young child.
These requirements and limitations are consistent with the
provisions of Section 8 of the Milk Code, to wit:
SECTION 8. Health workers -
xxxx
(b) Information provided by manufacturers and distributors to
health professionals regarding products within the scope of
this Code shall be restricted to scientific and factual matters,
and such information shall notimply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall
also include the information specified in Section
5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and
labels of the terms "humanized," "maternalized," or similar
terms.
These provisions of the Milk Code expressly forbid
information that would imply or create a belief that there is
any milk product equivalent to breastmilk or which is
humanized or maternalized, as such information would be
inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to
information given to health workers regarding breastmilk
substitutes, not to containers and labels thereof. However,
such restrictive application of Section 8(b) will result in the
absurd situation in which milk companies and distributors are
forbidden to claim to health workers that their products are
substitutes or equivalents of breastmilk, and yet be allowed to
display on the containers and labels of their products the exact
opposite message. That askewed interpretation of the Milk
Code is precisely what Section 5(a) thereof seeks to avoid by
mandating that all information regarding breastmilk vis-a-
vis breastmilk substitutes be consistent, at the same time
giving the government control over planning, provision,
design, and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers
and labels to state that the product offered is not a substitute
for breastmilk, is a reasonable means of enforcing Section 8(b)
of the Milk Code and deterring circumvention of the
protection and promotion of breastfeeding as embodied in
Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling
requirement. It implements Section 5(b) of the Milk Code
which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written,
audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: x x
x (5) where needed, the proper use of infant formula, whether
manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula,
they shall include the social and financial implications of its
use; the health hazards of inappropriate foods or feeding
methods; and, in particular, the health hazards of unnecessary
or improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or text
which may idealize the use of breastmilk substitutes.
(Emphasis supplied)
The label of a product contains information about said product
intended for the buyers thereof. The buyers of breastmilk
substitutes are mothers of infants, and Section 26 of the RIRR
merely adds a fair warning about the likelihood of pathogenic
microorganisms being present in infant formula and other
related products when these are prepared and used
inappropriately.
Petitioner’s counsel has admitted during the hearing on June
19, 2007 that formula milk is prone to contaminations and
there is as yet no technology that allows production of
powdered infant formula that eliminates all forms of
contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR
for the label to contain the message regarding health hazards
including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk
Code.
The authority of DOH to control information regarding
breastmilk vis-a-vis breastmilk substitutes and supplements
and related products cannot be questioned. It is its intervention
into the area of advertising, promotion, and marketing that is
being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers. –
(a) No advertising, promotion or other marketing materials,
whether written, audio or visual, for products within the scope
of this Code shall be printed, published, distributed, exhibited
and broadcast unless such materials are duly authorized and
approved by an inter-agency committee created herein
pursuant to the applicable standards provided for in this Code.
the Milk Code invested regulatory authority over advertising,
promotional and marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-agency
committee composed of the following members is hereby
created:
The members may designate their duly authorized
representative to every meeting of the Committee.
The Committee shall have the following powers and
functions:
(1) To review and examine all advertising. promotion or other
marketing materials, whether written, audio or visual, on
products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions
from and prohibit the printing, publication, distribution,
exhibition and broadcast of, all advertising promotion or other
marketing materials, whether written, audio or visual, on
products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the
exercise of its powers and functions as well as the
performance of its duties and responsibilities; and
(4) To promulgate such rules and regulations as are necessary
or proper for the implementation of Section 6(a) of this
Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition – No advertising, promotions,
sponsorships, or marketing materials and activities for
breastmilk substitutes intended for infants and young children
up to twenty-four (24) months, shall be allowed, because they
tend to convey or give subliminal messages or impressions
that undermine breastmilk and breastfeeding or otherwise
exaggerate breastmilk substitutes and/or replacements, as well
as related products covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing
materials and activities for breastmilk substitutes in line with
the RIRR’s declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles –
xxxx
(f) Advertising, promotions, or sponsorships of infant formula,
breastmilk substitutes and other related products are
prohibited.
The DOH, through its co-respondents, evidently arrogated to
itself not only the regulatory authority given to the IAC but
also imposed absolute prohibition on advertising, promotion,
and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the
requirement of the Milk Code in Section 6 thereof for prior
approval by IAC of all advertising, marketing and promotional
materials prior to dissemination.
Even respondents, through the OSG, acknowledged the
authority of IAC, and repeatedly insisted, during the oral
arguments on June 19, 2007, that the prohibition under Section
11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by
Petitioner is whether or not there is an absolute prohibition on
advertising making AO 2006-12 unconstitutional. We
maintained that what AO 2006-12 provides is not an absolute
prohibition because Section 11 while it states and it is entitled
prohibition it states that no advertising, promotion,
sponsorship or marketing materials and activities for breast
milk substitutes intended for infants and young children up to
24 months shall be allowed because this is the standard they
tend to convey or give subliminal messages or impression
undermine that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections
because the other Section, Section 12, provides for the inter
agency committee that is empowered to process and evaluate
all the advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale
and manufacture, it simply regulates the advertisement and the
promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be
taken together with the provision on the Inter-Agency
Committee that processes and evaluates because there may be
some information dissemination that are straight forward
information dissemination. What the AO 2006 is trying to
prevent is any material that will undermine the practice of
breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body
has authority or power to promulgate Rules and Regulations
regarding the Advertising, Promotion and Marketing of
Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency
Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health
overstepped its rule making authority when it totally banned
advertising and promotion under Section 11 prescribed the
total effect rule as well as the content of materials under
Section 13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is
no total absolute ban. Second, the Inter-Agency Committee is
under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is
no absolute ban on advertising of breastmilk substitutes in the
Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban
on advertising of breastmilk substitutes intended for children
two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the
Inter-Agency Committee that can evaluate some advertising
and promotional materials, subject to the standards that we
have stated earlier, which are- they should not undermine
breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken
in relation with the other Sections, particularly 12 and 13 and
15, Your Honor, because it is recognized that the Inter-Agency
Committee has that power to evaluate promotional materials,
Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on
advertisement regarding milk substitute regarding infants two
(2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a
prohibition, however, we take exceptions and standards have
been set. One of which is that, the Inter-Agency Committee
can allow if the advertising and promotions will not
undermine breastmilk and breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the
Milk Code.
However, although it is the IAC which is authorized to
promulgate rules and regulations for the approval or rejection
of advertising, promotional, or other marketing materials
under Section 12(a) of the Milk Code, said provision must be
related to Section 6 thereof which in turn provides that the
rules and regulations must be "pursuant to the applicable
standards provided for in this Code." Said standards are set
forth in Sections 5(b), 8(b), and 10 of the Code, which, at the
risk of being repetitious, and for easy reference, are quoted
hereunder:
SECTION 5. Information and Education –
xxxx
(b) Informational and educational materials, whether written,
audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: (1)
the benefits and superiority of breastfeeding; (2) maternal
nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of
introducing partial bottlefeeding; (4) the difficulty of reversing
the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain
information about the use of infant formula, they shall include
the social and financial implications of its use; the health
hazards of inappropriate foods of feeding methods; and, in
particular, the health hazards of unnecessary or improper use
of infant formula and other breastmilk substitutes. Such
materials shall not use any picture or text which may idealize
the use of breastmilk substitutes.
xxxx
SECTION 8. Health Workers. –
xxxx
(b) Information provided by manufacturers and distributors to
health professionals regarding products within the scope of
this Code shall be restricted to scientific and factual
matters and such information shall not imply or create a belief
that bottle feeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5(b).
xxxx
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the
necessary information about the appropriate use of the
products, and in such a way as not to discourage
breastfeeding.
(b) Each container shall have a clear, conspicuous and easily
readable and understandable message in Pilipino or English
printed on it, or on a label, which message can not readily
become separated from it, and which shall include the
following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the
advice of a health worker as to the need for its use and the
proper methods of use; and
(iv) instructions for appropriate preparation, and a warning
against the health hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the
principal implementing agency for the enforcement of the
provisions of the Code. In relation to such responsibility of the
DOH, Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education –
(a) The government shall ensure that objective and
consistent information is provided on infant feeding, for use
by families and those involved in the field of infant nutrition.
This responsibility shall cover the planning, provision, design
and dissemination of information, and the control thereof, on
infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate
into operational terms the standards set forth in Sections 5, 8,
and 10 of the Milk Code, by which the IAC shall screen
advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly
provided for Section 13 in the RIRR which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within
the scope of this Code must be objective and should not equate
or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must
not in any case undermine breastmilk or breastfeeding. The
"total effect" should not directly or indirectly suggest that
buying their product would produce better individuals, or
resulting in greater love, intelligence, ability, harmony or in
any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and
regulations on advertising, promotion, and marketing.
Through that single provision, the DOH exercises control over
the information content of advertising, promotional and
marketing materials on breastmilk vis-a-vis breastmilk
substitutes, supplements and other related products. It also sets
a viable standard against which the IAC may screen such
materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign
Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient
standards the following: "public interest," "justice and equity,"
"public convenience and welfare," and "simplicity, economy
and welfare."65
In this case, correct information as to infant feeding and
nutrition is infused with public interest and welfare.
4. With regard to activities for dissemination of information to
health professionals, the Court also finds that there is no
inconsistency between the provisions of the Milk Code and the
RIRR. Section 7(b)66 of the Milk Code, in relation to Section
8(b)67 of the same Code, allows dissemination of
information to health professionals but such information is
restricted to scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does
not prohibit the giving of information to health
professionals on scientific and factual matters. What it
prohibits is the involvement of the manufacturer and
distributor of the products covered by the Code in activities
for the promotion, education and production of Information,
Education and Communication (IEC) materials regarding
breastfeeding that are intended for women and children. Said
provision cannot be construed to encompass even
the dissemination of information to health professionals, as
restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk
Code permits milk manufacturers and distributors to extend
assistance in research and in the continuing education of
health professionals, while Sections 22 and 32 of the RIRR
absolutely forbid the same. Petitioner also assails Section
4(i)69 of the RIRR prohibiting milk manufacturers' and
distributors' participation in any policymaking body in relation
to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and
their representatives should not form part of any policymaking
body or entity in relation to the advancement of breastfeeding.
The Court finds nothing in said provisions which contravenes
the Milk Code. Note that under Section 12(b) of the Milk
Code, it is the DOH which shall be principally responsible for
the implementation and enforcement of the provisions of said
Code. It is entirely up to the DOH to decide which entities to
call upon or allow to be part of policymaking bodies on
breastfeeding. Therefore, the RIRR's prohibition on milk
companies’ participation in any policymaking body in relation
to the advancement of breastfeeding is in accord with the Milk
Code.
Petitioner is also mistaken in arguing that Section 22 of the
RIRR prohibits milk companies from giving reasearch
assistance and continuing education to health
professionals. Section 2270 of the RIRR does not pertain to
research assistance to or the continuing education of health
professionals; rather, it deals with breastfeeding promotion
and education for women and children. Nothing in Section 22
of the RIRR prohibits milk companies from giving assistance
for research or continuing education to health professionals;
hence, petitioner's argument against this particular provision
must be struck down.
It is Sections 971 and 1072 of the RIRR which govern
research assistance. Said sections of the RIRR provide
that research assistance for health workers and researchers
may be allowed upon approval of an ethics committee, and
with certain disclosure requirements imposed on the milk
company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine
how such research or educational assistance may be given by
milk companies or under what conditions health workers may
accept the assistance. Thus, Sections 9 and 10 of the RIRR
imposing limitations on the kind of research done or extent of
assistance given by milk companies are completely in accord
with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits
milk companies from giving assistance, support, logistics or
training to health workers. This provision is within the
prerogative given to the DOH under Section 8(e)74of the Milk
Code, which provides that manufacturers and distributors of
breastmilk substitutes may assist in researches, scholarships
and the continuing education, of health professionals in
accordance with the rules and regulations promulgated by the
Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions
are also consistent with the Milk Code. Section 6(f) of the
Milk Code provides that donations may be made by
manufacturers and distributors of breastmilk substitutes upon
the request or with the approval of the DOH. The law does not
proscribe the refusal of donations. The Milk Code leaves it
purely to the discretion of the DOH whether to request or
accept such donations. The DOH then appropriately exercised
its discretion through Section 5175 of the RIRR which sets
forth its policy not to request or approve donations from
manufacturers and distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in
Section 52 of the RIRR that any donation from milk
companies not covered by the Code should be coursed through
the IAC which shall determine whether such donation should
be accepted or refused. As reasoned out by respondents, the
DOH is not mandated by the Milk Code to accept donations.
For that matter, no person or entity can be forced to accept a
donation. There is, therefore, no real inconsistency between
the RIRR and the law because the Milk Code does not prohibit
the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for
administrative sanctions that are not found in the Milk Code,
the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v.
Philippine Air Lines, Inc.76 is misplaced. The glaring
difference in said case and the present case before the Court is
that, in the Civil Aeronautics Board, the Civil Aeronautics
Administration (CAA) was expressly granted by the law (R.A.
No. 776) the power to impose fines and civil penalties, while
the Civil Aeronautics Board (CAB) was granted by the same
law the power to review on appeal the order or decision of the
CAA and to determine whether to impose, remit, mitigate,
increase or compromise such fine and civil penalties. Thus, the
Court upheld the CAB's Resolution imposing administrative
fines.
In a more recent case, Perez v. LPG Refillers Association of
the Philippines, Inc.,77 the Court upheld the Department of
Energy (DOE) Circular No. 2000-06-10
implementing Batas Pambansa (B.P.) Blg. 33. The circular
provided for fines for the commission of prohibited acts. The
Court found that nothing in the circular contravened the law
because the DOE was expressly authorized by B.P. Blg. 33
and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised
Administrative Code grants the DOH the authority to fix or
impose administrative fines. Thus, without any express grant
of power to fix or impose such fines, the DOH cannot provide
for those fines in the RIRR. In this regard, the DOH again
exceeded its authority by providing for such fines or sanctions
in Section 46 of the RIRR. Said provision is, therefore, null
and void.
The DOH is not left without any means to enforce its rules and
regulations. Section 12(b) (3) of the Milk Code authorizes the
DOH to "cause the prosecution of the violators of this Code
and other pertinent laws on products covered by this Code."
Section 13 of the Milk Code provides for the penalties to be
imposed on violators of the provision of the Milk Code or the
rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions –
(a) Any person who violates the provisions of this Code or the
rules and regulations issued pursuant to this Code shall, upon
conviction, be punished by a penalty of two (2) months to one
(1) year imprisonment or a fine of not less than One Thousand
Pesos (P1,000.00) nor more than Thirty Thousand Pesos
(P30,000.00) or both. Should the offense be committed by a
juridical person, the chairman of the Board of Directors, the
president, general manager, or the partners and/or the persons
directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government
agency to any health worker, distributor, manufacturer, or
marketing firm or personnel for the practice of their profession
or occupation, or for the pursuit of their business, may, upon
recommendation of the Ministry of Health, be suspended or
revoked in the event of repeated violations of this Code, or of
the rules and regulations issued pursuant to this Code.
(Emphasis supplied)
8. Petitioner’s claim that Section 57 of the RIRR repeals
existing laws that are contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and
rules and regulations or parts thereof inconsistent with these
revised rules and implementing regulations are hereby
repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal
of laws but only orders, issuances and rules and regulations.
Thus, said provision is valid as it is within the DOH's rule-
making power.
An administrative agency like respondent possesses quasi-
legislative or rule-making power or the power to make rules
and regulations which results in delegated legislation that is
within the confines of the granting statute and the
Constitution, and subject to the doctrine of non-delegability
and separability of powers.78 Such express grant of rule-
making power necessarily includes the power to amend,
revise, alter, or repeal the same.79 This is to allow
administrative agencies flexibility in formulating and
adjusting the details and manner by which they are to
implement the provisions of a law,80 in order to make it more
responsive to the times. Hence, it is a standard provision in
administrative rules that prior issuances of administrative
agencies that are inconsistent therewith are declared repealed
or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond
the authority of the DOH to promulgate and in contravention
of the Milk Code and, therefore, null and void. The rest of the
provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the
Respondents is unnecessary and oppressive, and is offensive
to the due process clause of the Constitution, insofar as the
same is in restraint of trade and because a provision therein is
inadequate to provide the public with a comprehensible basis
to determine whether or not they have committed a
violation.81 (Emphasis supplied)
Petitioner refers to Sections
4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as
the provisions that suppress the trade of milk and, thus, violate
the due process clause of the Constitution.
The framers of the constitution were well aware that trade
must be subjected to some form of regulation for the public
good. Public interest must be upheld over business
interests.90 In Pest Management Association of the
Philippines v. Fertilizer and Pesticide Authority,91 it was held
thus:
x x x Furthermore, as held in Association of Philippine
Coconut Desiccators v. Philippine Coconut Authority, despite
the fact that "our present Constitution enshrines free enterprise
as a policy, it nonetheless reserves to the government the
power to intervene whenever necessary to promote the general
welfare." There can be no question that the unregulated use or
proliferation of pesticides would be hazardous to our
environment. Thus, in the aforecited case, the Court declared
that "free enterprise does not call for removal of ‘protective
regulations’." x x x It must be clearly explained and proven by
competent evidence just exactly how such protective
regulation would result in the restraint of trade. [Emphasis and
underscoring supplied]
In this case, petitioner failed to show that the proscription of
milk manufacturers’ participation in any policymaking body
(Section 4(i)), classes and seminars for women and children
(Section 22); the giving of assistance, support and logistics or
training (Section 32); and the giving of donations (Section 52)
would unreasonably hamper the trade of breastmilk
substitutes. Petitioner has not established that the proscribed
activities are indispensable to the trade of breastmilk
substitutes. Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are unreasonable and
oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w)
of the RIRR is unreasonable and oppressive. Said section
provides for the definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the
owner, manufacturer, distributor of infant formula, follow-up
milk, milk formula, milk supplement, breastmilk substitute or
replacement, or by any other description of such nature,
including their representatives who promote or otherwise
advance their commercial interests in marketing those
products;
such, the rest of the RIRR do not constitute illegal restraint of
trade nor are they violative of the due process clause of the
Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED.
Sections 4(f), 11 and 46 of Administrative Order No. 2006-
0012 dated May 12, 2006 are declared NULL and VOID for
being ultra vires. The Department of Health and respondents
are PROHIBITED from implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006
is LIFTED insofar as the rest of the provisions of
Administrative Order No. 2006-0012 is concerned.
SO ORDERED.

On the other hand, Section 4 of the Milk Code provides:

(d) "Distributor" means a person, corporation or any other

entity in the public or private sector engaged in the business
(whether directly or indirectly) of marketing at the wholesale
or retail level a product within the scope of this Code. A
"primary distributor" is a manufacturer's sales agent,
representative, national distributor or broker.

xxxx

(j) "Manufacturer" means a corporation or other entity in the

public or private sector engaged in the business or function
(whether directly or indirectly or through an agent or and
entity controlled by or under contract with it) of
manufacturing a products within the scope of this Code.

Notably, the definition in the RIRR merely merged together

under the term "milk company" the entities defined separately
under the Milk Code as "distributor" and "manufacturer." The
RIRR also enumerated in Section 5(w) the products
manufactured or distributed by an entity that would qualify it
as a "milk company," whereas in the Milk Code, what is used
is the phrase "products within the scope of this Code." Those
are the only differences between the definitions given in the
Milk Code and the definition as re-stated in the RIRR.

Since all the regulatory provisions under the Milk Code apply
equally to both manufacturers and distributors, the Court sees
no harm in the RIRR providing for just one term to encompass
both entities. The definition of "milk company" in the RIRR
and the definitions of "distributor" and "manufacturer"
provided for under the Milk Code are practically the same.

The Court is not convinced that the definition of "milk

company" provided in the RIRR would bring about any
change in the treatment or regulation of "distributors" and
"manufacturers" of breastmilk substitutes, as defined under the
Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of

the RIRR are in consonance with the objective, purpose and
intent of the Milk Code, constituting reasonable regulation of
an industry which affects public health and welfare and, as
G.R. No. 107369 August 11, 1999
JESULITO A. MANALO, petitioner,
vs.
PEDRO G. SISTOZA, REGINO ARO III, NICASIO MA.
CUSTODIO, GUILLERMO DOMONDON, RAYMUNDO L.
LOGAN, WILFREDO R. REOTUTAR, FELINO C.
PACHECO, JR., RUBEN J. CRUZ, GERONIMO B.
VALDERRAMA, MERARDO G. ABAYA, EVERLINO B.
NARTATEZ, ENRIQUE T. BULAN, PEDRO J. NAVARRO,
DOMINADOR M. MANGUBAT, RODOLFO M. GARCIA
and HONORABLE SALVADOR M. ENRIQUEZ II In His
Capacity as Secretary of Budget and
Management, respondents.
PURISIMA, J.:
The case at bar is not of first impression. The issue posed
concerning the limits of the power of the Commission on
Appointments to confirm appointments issued by the Chief
Executive has been put to rest in a number of cases. The court
finds no basis for departing from the ruling laid down in those
cases.
In this special civil action for Prohibition under Rule 65 of the
Revised Rules of Court, petitioners question the
constitutionality and legality of the permanent appointments
issued by former President Corazon C. Aquino to the
respondent senior officers of the Philippine National Police
who were promoted to the ranks of Chief Superintendent and
Director without their appointments submitted to the
Commission on Appointments for confirmation under Section
16, Article VII of the 1987 Constitution and Republic Act
6975 otherwise known as the Local Government Act of 1990.
Impleaded in the case is the former Secretary of Budget and
Management Salvador M. Enriquez III, who approved and
effected the disbursements for the salaries and other
emoluments of subject police officers.1âwphi1.nêt
The antecedents facts are as follows:
On December 13, 1990, Republic Act 6975 creating the
Department of Interior and Local Government was signed into
law by former President Corazon C. Aquino. Pertinent
provisions of the said Act read:
Sec. 26. Powers, Functions and Term of Office of the PNP
Chief. — The command and direction of the PNP shall be
vested in the Chief of the PNP who shall have the power to
direct and control tactical as well as strategic movements,
deployment, placement, utilization of the PNP or any of its
units and personal, including its equipment, facilities and other
resources. Such command and direction of the Chief of the
PNP may be delegated to subordinate officials with respect to
the units under their respective commands, in accordance with
the rules and regulations prescribed by the Commission. The
Chief of the PNP shall also have the power to issue detailed
implementing policies and instructions regarding personnel,
funds, properties, records, correspondence and such other
matters as may be necessary to effectively carry out the
functions, powers and duties of the Bureau. The Chief of the
PNP shall be appointed by the President from among the
senior officers down to the rank of the chief superintendent,
subject to confirmation by the Commission on
Appointments: Provided, That the Chief of the PNP shall
serve a term of office not to exceed four (4)
years: Provided, further, That in times of war or other national
emergency declared by Congress, the President may extend
such term of office."1 (emphasis supplied).
Sec. 31. Appointment of PNP Officers and Members. — The
appointment of the officers and members of the PNP shall be
effected in the following manner:
(a) Police Officer I to Senior Police Officer IV — Appointed
by the PNP regional director for regional personnel or by the
Chief of the PNP for the national headquarters personnel and
attested by the Civil Service Commission;
(b) Inspector to Superintendent — Appointed by the Chief of
the PNP, as recommended by their immediate superiors, and
attested by the Civil Service Commission;
(c) Senior Superintendent to Deputy Director General —
Appointed by the President upon recommendation of the Chief
of the PNP, with the proper endorsement by the Chairman of
the Civil Service Commission and subject to confirmation by
the Commission on Appointments; and
(d) Director General — Appointed by the President from
among the senior officers down to the rank of chief
superintendent in the service, subject to confirmation by the
Commission on Appointments; Provided, That the Chief of the
PNP shall serve a tour of duty not to exceed four (4)
years; Provided, further, That, in times of war or other national
emergency declared by Congress, the President may extend
such tour of duty. (emphasis supplied).
In accordance therewith, on March 10, 1992, the President of
the Philippines, through then Executive Secretary Franklin M.
Drilon, promoted the fifteen (15) respondent police officers
herein, by appointing them to positions in the Philippine
National Police with the rank of Chief Superintendent to
Director2, namely:
Chief Supt. PEDRO G.
Director
SISTOZA
Chief Supt. REGINO ARO III Director
Chief Supt. NICASIO MA.
Director
CUSTODIO
Chief Supt. GUILLERMO
Director
DOMONDON
 Chief Supt. RAYMUNDO L.
LOGAN
Senior Supt. WILFREDO
REOTUTAR
Senior Supt. FELINO C.
PACHECO, JR.
Senior Supt. RUBEN J. CRUZ
Senior Supt. GERONIMO B.
VALDERRAMA
Senior Supt. MERARDO G.
ABAYA
Senior Supt. EVERLINO
NARTATEZ
I. Respondent officers, in assuming their offices and
Director discharging the functions attached thereto, despite their invalid
appointments, in view of the failure to secure the required
confirmation of the Commission on Appointments as required
Chief by the Constitution and the law, are acting without or in
Superintendent excess of their jurisdiction or with grave abuse of discretion,
considering that:
Chief
A. Republic Act 6975 is a valid law that duly requires
Superintendent
confirmation of the appointments of officers from the rank of
senior superintendent and higher by the Commission on
Chief Appointments.
Superintendent
B. The Philippine National Police is akin to the Armed Forces
where the Constitution specifically requires confirmation by
Chief
the Commission on Appointments.
Superintendent
II. Respondent Secretary in allowing and/or effecting
Chief disbursements in favor of respondent officers despite the
Superintendent unconstitutionality and illegality of their appointments is
acting without or in excess of his jurisdiction or with grave
abuse of discretion.
Chief
Superintendent The petition must fail. It is not impressed with merit.

Petitioner theorizes that Republic Act 6975 enjoys the

Senior Supt. ENRIQUE T. Chief presumption of constitutionality and that every statute passed
BULAN Superintendent by Congress is presumed to have been carefully studied and
considered before its enactment. He maintains that the respect
Senior Supt. PEDRO J. Chief accorded to each department of the government requires that
NAVARRO Superintendent the court should avoid, as much as possible, deciding
constitutional questions.
Senior Supt. DOMINADOR Chief The Court agrees with petitioner. However, it is equally
MANGUBAT Superintendent demanded from the courts, as guardians of the Constitution, to
see to it that every law passed by Congress is not repugnant to
Senior Supt. RODOLFO M. Chief the organic law. Courts have the inherent authority to
GARCIA Superintendent determine whether a statute enacted by the legislature
transcends the limit delineated by the fundamental
The appointments of respondent police officers were in a law.4 When it does, the courts will not hesitate to strike down
permanent capacity. Their letters of appointment stated in part: such unconstitutional law.

By virtue hereof, they may qualify and enter upon the
performance of the duties of the office, furnishing this office
and the Civil Service Commission with copies of their oath of
office.3
Without their names submitted to the Commission on
Appointments for confirmation, the said police officers took
their oath of office and assumed their respective positions.
Thereafter, the Department of Budget and Management, under
the then Secretary Salvador M. Enriquez III, authorized
disbursements for their salaries and other emoluments.
On October 21, 1992, the petitioner brought before this Court
this present original petition for prohibition, as a taxpayer suit,
to assail the legality of subject appointments and
disbursements made therefor.
Petitioner contends that:
The power to make appointments is vested in the Chief
Executive by Section 16, Article VII of the Constitution,
which provides:
Sec. 16. The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall
also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until
the next adjournment of the Congress.
The aforecited provision of the Constitution has been the
subject of several cases on the issue of the restrictive function
of the Commission on Appointments with respect to the
appointing power of the President. This court touched upon
the historical antecedent of the said provision in the case
of Sarmiento III vs. Mison5 in which it was ratiocinated upon
that Section 16 of Article VII of the 1987 Constitution
requiring confirmation by the Commission on Appointments
of certain appointments issued by the President contemplates a
system of checks and balances between the executive and
legislative branches of government. Experience showed that
when almost all presidential appointments required the
consent of the Commission on Appointments, as was the case
under the 1935 Constitution, the commission became a venue
of "horse-trading" and similar malpractices.6 On the other
hand, placing absolute power to make appointments in the
President with hardly any check by the legislature, as what
happened under 1973 Constitution, leads to abuse of such
power. Thus was perceived the need to establish a "middle
ground" between the 1935 and 1973 Constitutions. The
framers of the 1987 Constitution deemed it imperative to
subject certain high positions in the government to the power
of confirmation of the Commission on Appointments and to
allow other positions within the exclusive appointing power of
the President.1âwphi1.nêt
Conformably, as consistently interpreted and ruled in the
leading case of Sarmiento III vs. Mison 7, and in the
subsequent cases of Bautista vs. Salonga 8, Quintos-Deles
vs. Constitutional Commission9, and Calderon vs. Carale10;
under Section 16, Article VII, of the Constitution, there are
four groups of officers of the government to be appointed by
the President:
First, the heads of the executive departments, ambassadors,
other public ministers and consuls, officers of the armed
forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this
Constitution;
Second, all other officers of the Government whose
appointments are not otherwise provided for by law;
Third, those whom the President may be authorized by law to
appoint;
Fourth, officers lower in rank whose appointments the
Congress may by law vest in the President alone.
It is well-settled that only presidential appointments belonging
to the first group require the confirmation by the Commission
on Appointments. The appointments of respondent officers
who are not within the first category, need not be confirmed
by the Commission on Appointments. As held in the case
of Tarrosa vs. Singson11 Congress cannot by law expand the
power of confirmation of the Commission on Appointments
and require confirmation of appointments of other government
officials not mentioned in the first sentence of Section 16 of
Article VII of the 1987 Constitution.
Consequently, unconstitutional are Sections 26 and 31 of
Republic Act 6975 which empower the Commission on
Appointments to confirm the appointments of public officials
whose appointments are not required by the Constitution to be
confirmed. But the unconstitutionality of the aforesaid
sections notwithstanding, the rest of Republic Act 6975
stands. It is well-settled that when provisions of law declared
void are severable from the main statute and the removal of
the unconstitutional provisions would not affect the validity
and enforceability of the other provisions, the statute remains
valid without its voided sections.12
It is petitioner's submission that the Philippine National Police
is akin to the Armed Forces of the Philippines and therefore,
the appointments of police officers whose rank is equal to that
of colonel or naval captain require confirmation by the
Commission on Appointments.
This contention is equally untenable. The Philippine National
Police is separate and distinct from the Armed Forces of the
Philippines. The Constitution, no less, sets forth the
distinction. Under Section 4 of Article XVI of the 1987
Constitution,
The Armed Forces of the Philippines shall be composed of a
citizen armed force which shall undergo military training and
service, as may be provided by law. It shall keep a regular
force necessary for the security of the State.
On the other hand, Section 6 of the same Article of the
Constitution ordains that:
The State shall establish and maintain one police force, which
shall be national in scope and civilian in character to be
administered and controlled by a national police commission.
The authority of local executives over the police units in their
jurisdiction shall be provided by law.
To so distinguish the police force from the armed forces,
Congress enacted Republic Act 6975 which states in part:
Sec. 2. Declaration of policy. — It is hereby declared to be the
policy of the State to promote peace and order, ensure public
safety and further strengthen local government capability
aimed towards the effective delivery of the basic services to
the citizenry through the establishment of a highly efficient
and competent police force that is national in scope and
civilian in character. . . .
The policy force shall be organized, trained and equipped
primarily for the performance of police functions. Its national
scope and civilian character shall be paramount. No element
of the police force shall be military nor shall any position
thereof be occupied by active members of the Armed Forces
of the Philippines.
Thereunder, the police force is different from and independent
of the armed forces and the ranks in the military are not
similar to those in the Philippine National Police. Thus,
directors and chief superintendents of the PNP, such as the
herein respondent police officers, do not fall under the first
category of presidential appointees requiring the confirmation
by the Commission on Appointments.

In view of the foregoing disquisition and conclusion, the

respondent former Secretary Salvador M. Enriquez III of the
Department of Budget and Management, did not act with
grave abuse of discretion in authorizing and effecting
disbursements for the salaries and other emoluments of the
respondent police officers whose appointments are valid.

WHEREFORE, for lack of merit, the petition under

consideration is hereby DISMISSED. No pronouncement as to
costs.1âwphi1.nêt

SO ORDERED.
G.R. No. L-45892 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TRANQUILINO LAGMAN, defendant-appellant.
-----------------------------
G.R. No. L-45893 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PRIMITIVO DE SOSA, defendant-appellant.
Severino P. Izon for appellants.
Office of the Solicitor-General Tuason for appellee.
AVANCEÑA, J.:
In these two cases (G.R. Nos. L-45892 and 45893), the
appellants Tranquilino and Primitivo de Sosa are charged with
a violation of section 60 of Commonwealth Act No. 1, known
as the National Defense Law. It is alleged that these two
appellants, being Filipinos and having reached the age of
twenty years in 1936, willfully and unlawfully refused to
register in the military service between the 1st and 7th of April
of said year, notwithstanding the fact that they had been
required to do so. The evidence shows that these two
appellants were duly notified by the corresponding authorities
to appear before the Acceptance Board in order to register for
military service in accordance with law, and that the said
appellants, in spite of these notices, had not registered up to
the date of the filing of the information.
The appellants do not deny these facts, but they allege in
defense that they have not registered in the military service
because Primitivo de Sosa is fatherless and has a mother and a
brother eight years old to support, and Tranquilino Lagman
also has a father to support, has no military learnings, and does
not wish to kill or be killed.
Each of these appellants was sentenced by the Court of First
Instance to one month and one day of imprisonment, with the
costs.
In this instance, the validity of the National Defense Law,
under which the accused were sentenced, is impugned on the
ground that it is unconstitutional. Section 2, Article II of the
Constitution of the Philippines provides as follows:
SEC. 2. The defense of the state is a prime duty of
government, and in the fulfillment of this duty all citizens may
be required by law to render personal military or civil service.
The National Defense Law, in so far as it establishes
compulsory military service, does not go against this
constitutional provision but is, on the contrary, in faithful
compliance therewith. The duty of the Government to defend
the State cannot be performed except through an army. To
leave the organization of an army to the will of the citizens
would be to make this duty of the Government excusable
should there be no sufficient men who volunteer to enlist
therein.1ªvvphïl.nët
In the United States the courts have held in a series of
decisions that the compulsory military service adopted by
reason of the civil war and the world war does not violate the
Constitution, because the power to establish it is derived from
that granted to Congress to declare war and to organize and
maintain an army. This is so because the right of the
Government to require compulsory military service is a
consequence of its duty to defend the State and is reciprocal
with its duty to defend the life, liberty, and property of the
citizen. In the case of Jacobson vs. Massachusetts (197 U.S.,
11; 25 Sup. Ct. Rep., 385), it was said that, without violating
the Constitution, a person may be compelled by force, if need
be, against his will, against his pecuniary interests, and even
against his religious or political convictions, to take his place
in the ranks of the army of his country, and risk the chance of
being shot down in its defense. In the case of United States vs.
Olson (253 Fed., 233), it was also said that this is not
deprivation of property without due process of law, because,
in its just sense, there is no right of property to an office or
employment.
The circumstance that these decisions refer to laws enacted by
reason on the actual existence of war does not make our case
any different, inasmuch as, in the last analysis, what justifies
compulsory military service is the defense of the State,
whether actual or whether in preparation to make it more
effective, in case of need. The circumstance that the appellants
have dependent families to support does not excuse them from
their duty to present themselves before the Acceptance Board
because, if such circumstance exists, they can ask for
determent in complying with their duty and, at all events, they
can obtain the proper pecuniary allowance to attend to these
family responsibilities (secs. 65 and 69 of Commonwealth Act
No. 1).
The appealed judgment rendered in these two cases is
affirmed, with the costs to the appellants. So ordered.
G.R. No. L-322 July 28, 1947
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO MANAYAO, ET AL., defendants.
PEDRO MANAYAO, appellant.
J. Antonio Araneta for appellant.
First Assistant Solicitor General Jose B. L. Reyes and Solicitor
Ramon L. Avanceña for appellee.
HILADO, J.:
Appellant Pedro Manayao and Filomeno Flores and
Raymundo Flores were charged with the high crime of treason
with multiple murder in the People's Court. The Floreses not
having been apprehended, only Manayao was tried. Convicted
of the offense charged against him with the aggravating
circumstances of (1) the aid of armed men and (2) the
employment or presence of a band in the commission of the
crime, he was sentenced to death, to pay a fine of P20,000, an
indemnity of P2,000 to the heirs of each of the persons named
in the third paragraph of the decision, and the costs. He has
appealed from that decision to this Court.
On or about the 27th of January, 1945, the guerrillas raided the
Japanese in Sitio Pulong Tindahan, Municipality of Angat,
Province of Bulacan. In reprisal, Japanese soldiers and a
number of Filipinos affiliated with the Makapili, among them
the instant appellant, conceived the diabolical idea of killing
the residents of Barrio Banaban of the same municipality
(Exhibits A, C, and C-1). Pursuant to this plan, said Japanese
soldiers and their Filipino companions, armed with rifles and
bayonets, gathered the residents of Banaban behind the barrio
chapel on January 29, 1945. Numbering about sixty or
seventy, the residents thus assembled included men, women
and children — mostly women (Exhibits A, C, amd C-1; pp.
3-16, 29, 30, 65, 102, t.s.n.).
The children were placed in a separate group from the men
and women — the prosecution star witnesses, Maria Paulino
and Clarita Perez, were among the children (pp. 3, 40, t.s.n. ).
Presently, the Japanese and their Filipino comrades set the
surrounding houses on fire (pp. 14, 48, 70, 71, 103, t.s.n.), and
proceeded to butcher all the persons assembled, excepting the
small children, thus killing, among others, those known by the
following names: Patricia, Dodi, Banda, Tana, Uyang, Mina,
Marta, Sana, Eufemia, Doroteo, Andres, Perly, Tisiang,
Urado, Pisan, Dorang, Felisa, and Eulalia (pp. 8, 10, 13, 14,
31, 32, 47, 48, 61, 63, t.s.n.).
Appellant alone killed about six women, two of whom were
Patricia and Dodi whom he bayoneted to death in the presence
of their daughters, Maria Paulino and Clarita Perez,
respectively (pp. 8, 10, 13, 31, 32, 35, 47, 48, t.s.n.). Patricia
and Dodi pleaded with appellant for mercy, he being their
relative, but he gave the callous answer that no mercy would
be given them because they were wives of guerrillas (pp. 10,
42, 43, 49, t.s.n.).
Appellant would also have killed the small children including
Clarita Perez and Maria Paulino if he had been allowed to
have his way. For when all but the small ones had been
butchered, he proposed to kill them too, but the Japanese
soldiers interceded, saying that the children knew nothing of
the matter (pp. 15, 49, 51, 66, 67, t.s.n.). Appellant insisted in
his proposal, arguing that the children would be wives of
guerrillas later when they grew up, but the Japanese decided to
spare them (p. 22, t.s.n.).
The foregoing facts have been clearly established by the
testimony of eye-witnesses — Clarita Paulino, Maria Perez,
and Policarpio Tigas — to the ruthless massacre of Banaban.
There is a complete absence of evidence tending to show
motive on the part of these witnesses for falsely testifying
against appellant — such a motive is not even insinuated by
the defendant. Indeed, appellant's counsel frankly states (p. 3,
brief) that he "does not dispute the findings of fact of the
People's Court." Speaking of the testimony of Clarita and
Maria, both aged ten years, the People's Court, who heard,
observed and saw them testify, had the following to say:
The testimony of the last two in particular is entitled to very
great weight. They are simple barrio girls, only ten years old,
whose minds have not yet been tainted by feelings of hatred or
revenge or by any desire to be spectacular or to exaggerate.
They were straight-forward and frank in their testimony and
did not show any intention to appeal to the sentiments of the
court. They could not have been mistaken as to the presence
and identity of the accused for they know him so well that
they referred to him by his pet name of "Indong Pintor" or
Pedro, the painter. They could not have erred in the narration
of the salient phases of the tragic events of January 29, 1945,
in Banaban, for they were forced eye-witnesses to and were
involved in the whole tragedy, the burning of the houses and
the massacre committed by the accused and his Japanese
masters took place in broad daylight and were not
consummated in a fleeting moment but during a time
sufficient for even girls of tender age to retain a trustworthy
mental picture of the unusual event they could not help but
witness.
Not only this, but the testimony of Clarita Perez and Maria
Paulino is so clear, positive and convincing that it would be
sufficient for conviction without any further corroboration.
Yet, there is ample corroborative proof. Thus, Tomas M.
Pablo declared that he had seen the corpses of the massacred
residents of Banaban shortly after the happening of the
heinous crime (p. 136, t.s.n.). And appellant himself admitted
his participation in the massacre in two sworn statements —
one made on August 28, 1945, before Lt. Jesus Cacahit,
Detachment Commander of the Angat 23d MP Command
(Exhibit A; pp. 75-77, t.s.n.) and another made on September
5, 1945 before Feliciano F. Torres, Assistant Provincial Fiscal
of Bulacan (Exhibits C, C-1; pp. 150-159, t.s.n.).
In No. 1 of his assignment of errors, appellant's counsel
contends that appellant was a member of the Armed Forces of
Japan, was subject to military law, and not subject to the
jurisdiction of the People's Court; and in No. 2 he advances
the theory that appellant had lost his Philippine citizenship and
was therefore not amenable to the Philippine law of treason.
We cannot uphold either contention. We are of the considered
opinion that the Makapili, although organized to render
military aid to the Japanese Army in the Philippines during the
late war, was not a part of said army. It was an organization of
Filipino traitors, pure and simple. As to loss of Philippine
citizenship by appellant, counsel's theory is absolutely
untenable. He invokes in its support paragraphs 3, 4, and 6 of
section 1 of Commonwealth Act No. 63, providing:
. . . A Filipino citizen may lose his citizenship in any of the
following ways and/or events:
xxx xxx xxx
(3) By subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining
twenty-one years of age or more;
(4) By accepting commission in the military, naval or air
service of a foreign country;
xxx xxx xxx
(6) By having been declared, by competent authority, a
deserter of the Philippine Army, Navy, or Air Corps in time of
war, unless subsequently a plenary pardon or amnesty has
been granted.
There is no evidence that appellant has subscribed to an oath
of allegiance to support the constitution or laws of Japan. His
counsel cites (Brief, 4) the fact that in Exhibit A "he
subscribed an oath before he was admitted into
the Makapili association, "the aim of which was to help Japan
in its fight against the Americans and her allies.'" And the
counsel contends from this that the oath was in fact one of
allegiance to support the constitution and laws of Japan. We
cannot uphold such a far-fetched deduction. The members of
the Makapili could have sworn to help Japan in the war
without necessarily swearing to support her constitution and
laws. The famed "Flying Tiger" who so bravely and resolutely
aided China in her war with Japan certainly did not need to
swear to support the Chinese constitution and laws, even if
they had to help China fight Japan. During the first World War
the "National Volunteers" were organized in the Philippines,
pledged to go to Europe and fight on the side of the Allies,
particularly of the United States. In order to carry out that
mission — although the war ended before this could be done
— they surely did not have to take an oath to support the
constitution or laws of the United States or any of its allies.
We do not multiply these examples, for they illustrate a
proposition which seems self-evident.
Neither is there any showing of the acceptance by appellant of
a commission "in the military, naval, or air service" of Japan.
Much less is there a scintilla of evidence that appellant had
ever been declared a deserter in the Philippine Army, Navy or
Air Corps — nor even that he was a member of said Army,
Navy, or Air Corps.
Further, appellant's contention is repugnant to the most
fundamental and elementary principles governing the duties of
a citizen toward his country under our Constitution. Article II,
section 2, of said constitution ordains:
"SEC. 2. The defense of the State is a prime duty of
government, and in the fulfillment of this duty all citizens may
be required by law to render personal, military or civil
service." (Emphasis supplied.).
This constitutional provision covers both time of peace and
time of war, but it is brought more immediately and
peremptorily into play when the country is involved in war.
During such a period of stress, under a constitution enshrining
such tenets, the citizen cannot be considered free to cast off
his loyalty and obligations toward the Fatherland. And it
cannot be supposed, without reflecting on the patriotism and
intelligence of the Legislature, that in promulgating
Commonwealth Act No. 63, under the aegis of our
Constitution, it intended (but did not declare) that the duties of
the citizen solemnly proclaimed in the above-quoted
constitutional precept could be effectively cast off by him
even when his country is at war, by the simple expedient of
subscribing to an oath of allegiance to support the constitution
or laws of a foreign country, and an enemy country at that, or
by accepting a commission in the military, naval or air service
of such country, or by deserting from the Philippine Army,
Navy, or Air Corps.
It would shock the conscience of any enlightened citizenry to
say that this appellant, by the very fact of committing the
treasonous acts charged against him, the doing of which under
the circumstances of record he does not deny, divested himself
of his Philippine citizenship and thereby placed himself
beyond the arm of our treason law. For if this were so, his very
crime would be the shield that would protect him from
punishment.
But the laws do no admit that the bare commission of a crime
amounts of itself to a divestment of the character of citizen,
and withdraws the criminal from their coercion. They would
never prescribe an illegal act among the legal modes by which
a citizen might disfranchise himself; nor render treason, for
instance, innocent, by giving it the force of a dissolution of the
obligation of the criminal to his country. (Moore, International
Law Digest, Vol. III, p. 731.)
696. No person, even when he has renounced or incurred the
loss of his nationality, shall take up arms against his native
country; he shall be held guilty of a felony and treason, if he
does not strictly observe this duty. (Fiore's International Law
Codified, translation from Fifth Italian Edition by Borchard.)
As to the third assignment of error, the Solicitor General
agrees with counsel that it is improper to separately take into
account against appellant he aggravating circumstances of (1)
the aid of armed men and (2) the employment of a band in
appraising the gravity of the crime. We likewise are of the to pay a fine of P20,000, an indemnity of P2,000 to the heirs
same opinion, considering that under paragraph 6 of article 14 of each of the victims named in the third paragraph of the
of the Revised Penal Code providing that "whenever more lower court's decision, and the costs. So ordered.
than three armed malefactors shall have acted together in the
commission of an offense it shall be deemed to have been
committed by a band," the employment of more than three
armed men is an essential element of and inherent in a band.
So that in appreciating the existence of a band the employment
of more than three armed men is automatically included, there
being only the aggravating circumstance of band to be
considered.

As to appellant's fourth assignment of error, the contention is

clearly unacceptable that appellant acted in obedience to an
order issued by a superior and is therefore exempt from
criminal liability, because he allegedly acted in the fulfillment
of a duty incidental to his service for Japan as a member of
the Makapili. It is obvious that paragraphs 5 and 6 of article 11
of our Revised Penal Code compliance with duties to or orders
from a foreign sovereign, any more than obedience to an
illegal order. The construction contended for by appellant
could entail in its potentialities even the destruction of this
Republic.

The contention that as a member of the Makapili appellant had

to obey his Japanese masters under pain of severe penalty, and
that therefore his acts should be considered as committed
under the impulse of an irresistible force or uncontrollable fear
of an equal or greater injury, is no less repulsive.
Appellant voluntarily joined the Makapili with full knowledge
of its avowed purpose of rendering military aid to Japan. He
knew the consequences to be expected — if the alleged
irresistible force or uncontrollable fear subsequently arose, he
brought them about himself freely and voluntarily. But this is
not all; the truth of the matter is, as the Solicitor General well
remarks, that "the appellant actually acted with gusto during
the butchery of Banaban." He was on that occasion even bent
on more cruelty than the very ruthless Japanese masters — so
fate willed it — were the very ones who saved the little girls,
Clarita Perez and Maria Paulino, who were destined to
become the star witnesses against him on the day of
reckoning.

Conformably to the recommendation of the Solicitor General,

we find appellant guilty of the crime of treason with multiple
murder committed with the attendance of one aggravating
circumstance, that of "armed band," thus discarding the first
aggravating circumstance considered by the trial court. A
majority of the Court voted to affirm the judgment appealed
from, imposing the death penalty, convicting defendant and
appellant to pay a fine of P20,000, an indemnity of P2,000 to
the heirs of each of the victims named in the third paragraph
of the lower court's decision, and the costs. But due to the
dissent of Mr. Justice Perfecto from the imposition of the
death penalty, in accordance with the applicable legal
provisions we modify the judgment appealed from as regards
the punishment to be inflicted, and sentence defendant and
appellant Pedro Manayao to the penalty of reclusion perpetua,
with the accessories of article 41 of the Revised Penal Code,
G.R. No. 118910 November 16, 1995
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA,
CIRILO A. RIGOS, ERME CAMBA, EMILIO C.
CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO,
FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE
TAN, RAFAEL G. FERNANDO, RAOUL V. VICTORINO,
JOSE CUNANAN, QUINTIN S. DOROMAL, SEN.
FREDDIE WEBB, SEN. WIGBERTO TAÑADA, REP.
JOKER P. ARROYO, petitioners,
vs.
MANUEL L. MORATO, in his capacity as Chairman of the
Philippine Charity Sweepstakes Office, and the PHILIPPINE
GAMING MANAGEMENT CORPORATION, respondents.
RESOLUTION
MENDOZA, J.:
Petitioners seek reconsideration of our decision in this case.
They insist that the decision in the first case has already settled
(1) whether petitioner Kilosbayan, Inc. has a standing to sue
and (2) whether under its charter (R.A. No. 1169, as amended)
the Philippine Charity Sweepstakes Office can enter into any
form of association or collaboration with any party in
operating an on-line lottery. Consequently, petitioners
contend, these questions can no longer be reopened.
Because two members of the Court did not consider
themselves bound by the decision in the first case, petitioners
suggest that the two, in joining the dissenters in the first case
in reexamining the questions in the present case, acted
otherwise than according to law. They cite the following
statement in the opinion of the Court:
The voting on petitioners' standing in the previous case was a
narrow one, with seven (7) members sustaining petitioners'
standing and six (6) denying petitioners' right to bring the suit.
The majority was thus a tenuous one that is not likely to be
maintained in any subsequent litigation. In addition, there
have been changes in the membership of the Court, with the
retirement of Justices Cruz and Bidin and the appointment of
the writer of this opinion and Justice Francisco. Given this fact
it is hardly tenable to insist on the maintenance of the ruling as
to petitioners' standing.
Petitioners claim that this statement "conveys a none too
subtle suggestion, perhaps a Freudian slip, that the two new
appointees, regardless of the merit of the Decision in the first
Kilosbayan case against the lotto (Kilosbayan, et al. v.
Guingona, 232 SCRA 110 (1994)) must of necessity align
themselves with all the Ramos appointees who were dissenters
in the first case and constitute the new majority in the second
lotto case." And petitioners ask, "why should it be so?"
Petitioners ask a question to which they have made up an
answer. Their attempt at psychoanalysis, detecting a Freudian
slip where none exists, may be more revealing of their own
unexpressed wish to find motives where there are none which
they can impute to some members of the Court.
For the truth is that the statement is no more than an effort
to explain — rather than to justify — the majority's decision to
overrule the ruling in the previous case. It is simply meant to
explain that because the five members of the Court who
dissented in the first case (Melo, Quiason, Puno, Vitug and
Kapunan, JJ.) and the two new members (Mendoza and
Francisco, JJ.) thought the previous ruling to be
erroneous and its reexamination not to be barred by stare
decisis, res judicata or conclusiveness of judgment, or law of
the case, it was hardly tenable for petitioners to insist on the
first ruling.
Consequently to petitioners' question "What is the glue that
holds them together," implying some ulterior motives on the
part of the new majority in reexamining the two questions, the
answer is: None, except a conviction on the part of the five,
who had been members of the Court at the time they dissented
in the first case, and the two new members that the previous
ruling was erroneous. The eighth Justice (Padilla, J.) on the
other hand agrees with the seven Justices that the ELA is in a
real sense a lease agreement and therefore does not violate
R.A. No. 1169.
The decision in the first case was a split decision: 7-6. With
the retirement of one of the original majority (Cruz, J.) and
one of the dissenters (Bidin, J.) it was not surprising that the
first decision in the first case was later reversed.
It is argued that, in any case, a reexamination of the two
questions is barred because the PCSO and the Philippine
Gaming Management Corporation made a " formal
commitment not to ask for a reconsideration of the Decision in
the first lotto case and instead submit a new agreement that
would be in conformity with the PCSO Charter (R.A. No.
1169, as amended) and with the Decision of the Supreme
Court in the first Kilosbayan case against on-line, hi-tech
lotto."
To be sure, a new contract was entered into which the majority
of the Court finds has been purged of the features which made
the first contract objectionable. Moreover, what the PCSO said
in its manifestation in the first case was the following:
1. They are no longer filing a motion for reconsideration of the
Decision of this Honorable Court dated May 5, 1994, a copy
of which was received on May 6, 1994.
2. Respondents PCSO and PGMC are presently negotiating a
new lease agreement consistent with the authority of PCSO
under its charter (R.A. No. 1169, as amended by B.P. Blg. 42)
and conformable with the pronouncements of this Honorable
Court in its Decision of May 5, 1995.
The PGMC made substantially the same manifestation as the
PCSO.
There was thus no "formal commitment" — but only a
manifestation — that the parties were not filing a motion for
reconsideration. Even if the parties made a "formal
commitment," the six (6) dissenting Justices certainly could
not be bound thereby not to insist on their contrary view on
the question of standing. Much less were the two new
members bound by any "formal commitment" made by the
parties. They believed that the ruling in the first case was
erroneous. Since in their view reexamination was not barred
by the doctrine of stare decisis, res judicata or conclusiveness
of judgment or law of the case, they voted the way they did
with the remaining five (5) dissenters in the first case to form
a new majority of eight.
Petitioners ask, "Why should this be so?" Because, as
explained in the decision, the first decision was
erroneous and no legal doctrine stood in the way of its
reexamination. It can, therefore, be asked "with equal candor":
"Why should this not be so?"
Nor is this the first time a split decision was tested, if not
reversed, in a subsequent case because of change in the
membership of a court. In 1957, this Court, voting 6-5, held
in Feliciano v. Aquinas, G.R. No. L-10201, Sept. 23, 1957 that
the phrase "at the time of the election" in §2174 of the Revised
Administrative Code of 1917 meant that a candidate for
municipal elective position must be at least 23 years of age on
the date of the election. On the other hand, the dissenters
argued that it was enough if he attained that age on the day he
assumed office.
Less than three years later, the same question was before the
Court again, as a candidate for municipal councilor stated
under oath in her certificate of candidacy that she was eligible
for that position although she attained the requisite age (23
years) only when she assumed office. The question was
whether she could be prosecuted for falsification. In People
v. Yang, 107 Phi. 888 (1960), the Court ruled she could not.
Justice, later Chief Justice, Benison, who dissented in the first
case, Feliciano v. Aquinas, supra, wrote the opinion of the
Court, holding that while the statement that the accused was
eligible was "inexact or erroneous, according to the majority
in the Feliciano case," the accused could not be held liable for
falsification, because
the question [whether the law really required candidates to
have the required age on the day of the election or whether it
was sufficient that they attained it at the beginning of the term
of office] has not been discussed anew, despite the presence of
new members; we simply assume for the purpose of this
decision that the doctrine stands.
Thus because in the meantime there had been a change in the
membership of the Court with the retirement of two members
(Recess and Flex, JJ.) who had taken part in the decision in the
first case and their replacement by new members (Barrera and
Gutierrez-David, JJ.) and the fact that the vote in the first case
was a narrow one (6 to 5), the Court allowed that the
continuing validity of its ruling in the first case might well be
doubted. For this reason it gave the accused the benefit of the
doubt that she had acted in the good faith belief that it was
sufficient that she was 23 years of age when she assumed
office.
In that case, the change in the membership of the Court and
the possibility of change in the ruling were noted without
anyone — much less would-be psychoanalysts — finding in
the statement of the Court any Freudian slip. The possibility of
change in the rule as a result of change in membership was
accepted as a sufficient reason for finding good faith and lack
of criminal intent on the part of the accused.
Indeed, a change in the composition of the Court could prove
the means of undoing an erroneous decision. This was the
lesson of Knox v. Lee, 12 Wall. 457 (1871). The Legal Tender
Acts, which were passed during the Civil War, made U.S.
notes (greenbacks) legal tender for the payment of debts,
public or private, with certain exceptions. The validity of the
acts, as applied to preexisting debts, was challenged
in Hepburn v. Griswold, 8 Wall. 603 (1869). The Court was
then composed of only eight (8) Justices because of
Congressional effort to limit the appointing power of President
Johnson. Voting 5-3, the Court declared the acts void. Chief
Justice Chase wrote the opinion of the Court in which four
others, including Justice Grier, concurred. Justices Miller,
Swayne and Davis dissented. A private memorandum left by
the dissenting Justices described how an effort was made "to
convince an aged and infirm member of the court [Justice
Grier] that he had not understood the question on which he
voted," with the result that what was originally a 4-4 vote was
converted into a majority (5-3) for holding the acts invalid.
On the day the decision was announced, President Grant
nominated to the Court William Strong and Joseph P. Bradley
to fill the vacancy caused by the resignation of Justice Grier
and to restore the membership of the Court to nine. In
1871, Hepburn v. Griswold was overruled in the Legal Tender
Cases, as Knox v. Lee came to be known, in an opinion by
Justice Strong, with a dissenting opinion by Chief Justice
Chase and the three other surviving members of the former
majority. There were allegations that the new Justices were
appointed for their known views on the validity of the Legal
Tender Acts, just as there were others who defended the
character and independence of the new Justices. History has
vindicated the overruling of the Hepburn case by the new
majority. The Legal Tender Cases proved to be the Court's
means of salvation from what Chief Justice Hughes later
described as one of the Court's "self-inflicted wounds."1
We now consider the specific grounds for petitioners' motion
for reconsideration.
I. We have held that because there are no genuine issues of
constitutionality in this case, the rule concerning real party in
interest, applicable to private litigation rather than the more
liberal rule on standing, applies to petitioners. Two objections
are made against that ruling: (1) that the constitutional policies
and principles invoked by petitioners, while not supplying the
basis for affirmative relief from the courts, may nonetheless be
resorted to for striking down laws or official actions which are
inconsistent with them and (2) that the Constitution, by
guaranteeing to independent people's organizations "effective
and reasonable participation at all levels of social, political
and economic decision-making" (Art. XIII, §16), grants them
standing to sue on constitutional grounds.
The policies and principles of the Constitution invoked by
petitioner read:
Art. II, §5. The maintenance of peace and order, the protection
life, liberty, and property, and thepromotion of the general
welfare are essential for the enjoyment by all the people of the
blessings of democracy.
Id., §12. The natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and
the development of moral character shall receive the support
of the Government.
Id., §13. The State recognizes the vital role of the youth in
nation-building and shall promote and protect their
physical, moral, spiritual, intellectual, and social well-being. It
shall inculcate in the youth patriotism and nationalism, and
encourage their involvement in public and civic affairs.
Id., §17. The State shall give priority to education, science and
technology, arts, culture, and sports to foster patriotism and
nationalism, accelerate social progress, and promote total
human liberation and development.
As already stated, however, these provisions are not self-
executing. They do not confer rights which can be enforced in
the courts but only provide guidelines for legislative or
executive action. By authorizing the holding of lottery for
charity, Congress has in effect determined that consistently
with these policies and principles of the Constitution, the
PCSO may be given this authority. That is why we said with
respect to the opening by the PAGCOR of a casino in Cagayan
de Oro, "the morality of gambling is not a justiciable issue.
Gambling is not illegalper se. . . . It is left to Congress to deal
with the activity as it sees fit." (Magtajas v. Pryce Properties
Corp., Inc., 234 SCRA 255, 268 [1994]).
It is noteworthy that petitioners do not question the validity of
the law allowing lotteries. It is the contract entered into by the
PCSO and the PGMC which they are assailing. This case,
therefore, does not raise issues of constitutionality but only of
contract law, which petitioners, not being privies to the
agreement, cannot raise.
Nor does Kilosbayan's status as a people's organization give it
the requisite personality to question the validity of the contract
in this case. The Constitution provides that "the State shall
respect the role of independent people's organizations to
enable the people to pursue and protect, within the democratic
framework, their legitimate and collective interests and
aspirations through peaceful and lawful means," that their
right to "effective and reasonable participation at all levels of
social, political, and economic decision-making shall not be
abridged." (Art. XIII, §§ 15-16)
These provisions have not changed the traditional rule that
only real parties in interest or those with standing, as the case
may be, may invoke the judicial power. The jurisdiction of
this Court, even in cases involving constitutional questions, is
limited by the "case and controversy" requirement of Art.
VIII, §5. This requirement lies at the very heart of the judicial
function. It is what differentiates decision-making in the courts
from decision-making in the political departments of the
government and bars the bringing of suits by just any party.
Petitioners quote extensively from the speech of
Commissioner Garcia before the Constitutional Commission,
explaining the provisions on independent people's
organizations. There is nothing in the speech, however, which
supports their claim of standing. On the contrary, the speech
points the way to the legislative and executive branches of the
government, rather than to the courts, as the appropriate fora
for the advocacy of petitioners' views.2 Indeed, the provisions
on independent people's organizations may most usefully be
read in connection with the provision on initiative and
referendum as a means whereby the people may propose or
enact laws or reject any of those passed by Congress. For the
fact is that petitioners' opposition to the contract in question is
nothing more than an opposition to the government policy on
lotteries.
It is nevertheless insisted that this Court has in the past
accorded standing to taxpayers and concerned citizens in cases
involving "paramount public interest." Taxpayers, voters,
concerned citizens and legislators have indeed been allowed to
sue but then only (1) in cases involving constitutional
issues and
(2) under certain conditions. Petitioners do not meet these
requirements on standing.
Taxpayers are allowed to sue, for example, where there is a
claim of illegal disbursement of public funds. (Pascual v.
Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v.
Comelec, 73 SCRA 333 (1976); Bugnay Const. & Dev. v.
Laron, 176 SCRA 240 (1989); City Council of Cebu v.
Cuizon, 47 SCRA 325 [1972]) or where a tax measure is
assailed as unconstitutional. (VAT Cases [Tolentino v.
Secretary of Finance], 235 SCRA 630 [1994]) Voters are
allowed to question the validity of election laws because of
their obvious interest in the validity of such laws. (Gonzales v.
Comelec, 21 SCRA 774 [1967]) Concerned citizens can bring
suits if the constitutional question they raise is of
"transcendental importance" which must be settled early.
(Emergency Powers Cases [Araneta v. Dinglasan], 84 Phi. 368
(1949); Iloilo Palay and Corn Planters Ass'n v. Feliciano, 121
Phi. 358 (1965); Philconsa v. Gimenez, 122 Phi. 894 (1965);
CLU v. Executive Secretary, 194 SCRA 317
[1991]) Legislators are allowed to sue to question the validity
of any official action which they claim infringes their
prerogatives qua legislators. (Philconsa v. Enriquez, 235 506
(1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales
v. Macaraig, 191 SCRA 452 (1990); Tolentino v. Comelec, 41
SCRA 702 (1971); Tatad v. Garcia, G.R. No. 114222, April
16, 1995 (Mendoza, J., concurring))
Petitioners do not have the same kind of interest that these
various litigants have. Petitioners assert an interest as
taxpayers, but they do not meet the standing requirement for
bringing taxpayer's suits as set forth in Dumlao v. Comelec, 95
SCRA 392, 403 (1980), to wit:
While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do
said petitioners allege that their tax money is "being extracted
and spent in violation of specific constitutional protections
against abuses of legislative power" (Flast v. Cohen, 392 U.S.,
83 [1960]), or that there is a misapplication of such funds by
respondent COMELEC (see Pascual vs. Secretary of Public
Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek
to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law. (Philippine
Constitution Association vs. Mathay, 18 SCRA 300
[1966]), citing Philippine Constitution Association vs.
Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a
taxpayer's suit, per se, is no assurance of judicial review. As
held by this Court in Tan vs. Macapagal (43 SCRA 677
[1972]), speaking through our present Chief Justice, this Court
is vested with discretion as to whether or not a taxpayer's suit
should be entertained. (Emphasis added)
Petitioners' suit does not fall under any of these categories of
taxpayers' suits.
Neither do the other cases cited by petitioners support their
contention that taxpayers have standing to question
government contracts regardless of whether public funds are
involved or not. In Gonzales v. National Housing, Corp., 94
SCRA 786 (1979), petitioner filed a taxpayer's suit seeking the
annulment of a contract between the NHC and a foreign
corporation. The case was dismissed by the trial court. The
dismissal was affirmed by this Court on the grounds of res
judicata and pendency of a prejudicial question, thus avoiding
the question of petitioner's standing.
On the other hand, in Gonzales v. Raquiza, 180 SCRA 254
(1989), petitioner sought the annulment of a contract made by
the government with a foreign corporation for the purchase of
road construction equipment. The question of standing was not
discussed, but even if it was, petitioner's standing could be
sustained because he was a minority stockholder of the
Philippine National Bank, which was one of the defendants in
the case.
In the other case cited by petitioners, City Council of Cebu
v. Cuizon, 47 SCRA 325 (1972), members of the city council
were allowed to sue to question the validity of a contract
entered into by the city government for the purchase of road
construction equipment because their contention was that the
contract had been made without their authority. In addition, as
taxpayers they had an interest in seeing to it that public funds
were spent pursuant to an appropriation made by law.
But, in the case at bar, there is an allegation that public funds
are being misapplied or misappropriated. The controlling
doctrine is that of Gonzales v. Marcos, 65 SCRA 624 (1975)
where it was held that funds raised from contributions for the
benefit of the Cultural Center of the Philippines were not
public funds and petitioner had no standing to bring a
taxpayer's suit to question their disbursement by the President
of the Philippines.
Thus, petitioners' right to sue as taxpayers cannot be sustained.
Nor as concerned citizens can they bring this suit because no
specific injury suffered by them is alleged. As for the
petitioners, who are members of Congress, their right to sue as
legislators cannot be invoked because they do not complain of
any infringement of their rights as legislators.
Finally, in Valmonte v. PCSO, G.R. No. 78716, September 22,
1987, we threw out a petition questioning another form of
lottery conducted by the PCSO on the ground that petitioner,
who claimed to be a "citizen, lawyer, taxpayer and father of
three minor children," had no direct and personal interest in
the lottery. We said: "He must be able to show, not only that
the law is invalid, but also that he has sustained or is 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." In the case at bar, petitioners have not
shown why, unlike petitioner in the Valmonte case, they
should be accorded standing to bring this suit.
The case of Oposa v. Factoran, Jr. 224 SCRA 792 (1993) is
different. Citizens' standing to bring a suit seeking the
cancellation of timber licenses was sustained in that case
because the Court considered Art. II, §16 a right-conferring
provision which can be enforced in the courts. That provision
states:
The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and
harmony of nature. (Emphasis)
In contrast, the policies and principles invoked by petitioners
in this case do not permit of such categorization.
Indeed, as already stated, petitioners' opposition is not really
to the validity of the ELA but to lotteries which they regard to
be immoral. This is not, however, a legal issue, but a policy
matter for Congress to decide and Congress has permitted
lotteries for charity.
Nevertheless, although we have concluded that petitioners do
not have standing, we have not stopped there and dismissed
their case. For in the view we take, whether a party has a cause
of action and, therefore, is a real party in interest or one with
standing to raise a constitutional question must turn on
whether he has a right which has been violated. For this reason
the Court has not ducked the substantive issues raised by
petitioners.
II. R.A. No. 1169, as amended by B.P No . 42, states:
§1. The Philippine Charity Sweepstakes Office. — The
Philippine Charity Sweepstakes Office, hereinafter designated
the Office, shall be the principal government agency for
raising and providing for funds for health programs, medical
assistance and services and charities of national character, and
as such shall have the general powers conferred in section
thirteen of Act Numbered One Thousand Four Hundred Fifty-
Nine, as amended, and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries
and other similar activities, in such frequency and manner, as
shall be determined, and subject to such rules and regulations
as shall be promulgated by the Board of Directors.
B. Subject to the approval of the Minister of Human
Settlements, to engage in health and welfare-related
investments, programs, projects and activities which may be
profit-oriented, by itself or in collaboration, association or
joint venture with any person, association, company or entity,
whether domestic or foreign, except for the activities
mentioned in the preceding paragraph (A), for the purpose of
providing for permanent and continuing sources of funds for
health programs, including the expansion of existing ones,
medical assistance and services, and/or charitable
grants: Provided, That such investments will not compete with
the private sector in areas where investments are adequate as
may be determined by the National Economic and
Development Authority.
Petitioners insist on the ruling in the previous case that the
PCSO cannot hold and conduct charity sweepstakes, lotteries
and other similar activities in collaboration, association or
joint venture with any other party because of the clause
"except for the activities mentioned in the preceding paragraph
(A)" in paragraph (B) of §1. Petitioners contend that the ruling
is the law of this case because the parties are the same and the
case involves the same issue, i.e., the meaning of this statutory
provision.
The "law of the case" doctrine is inapplicable, because this
case is not a continuation of the first one. Petitioners also say
that inquiry into the same question as to the meaning of the
statutory provision is barred by the doctrine of res judicata.
The general rule on the "conclusiveness of judgment,"
however, is subject to the exception that a question may be
reopened if it is a legal question and the two actions involve
substantially different claims. This is generally accepted in
American law from which our Rules of Court was adopted.
(Montana v. United States, 440 U.S. 59 L.Ed.2d 147, 210
(1979); RESTATEMENT OF THE LAW 2d, ON
JUDGMENTS, §28; P. BATOR, D. MELTZER, P. MISHKIN
AND D. SHAPIRO, THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 1058, n.2 [3rd Ed., 1988]) There is
nothing in the record of this case to suggest that this exception
is inapplicable in this jurisdiction.
Indeed, the questions raised in this case are legal questions and
the claims involved are substantially different from those
involved in the prior case between the parties. As already
stated, the ELA is substantially different from the Contract of
Lease declared void in the first case.
Borrowing from the dissenting opinion of Justice Feliciano,
petitioners argue that the phrase "by itself or in collaboration,
association or joint venture with any other party" qualifies not
only §1 (B) but also §1 (A), because the exception clause
("except for the activities mentioned in the preceding
paragraph [A]") "operates, as it were, as a renvoi clause which
refers back to Section 1(A) and in this manner avoids the
necessity of simultaneously amending the text of Section
1(A)."
This interpretation, however, fails to take into account not
only the location of the phrase in paragraph (B), when it
should be in paragraph (A) had that been the intention of the
lawmaking authority, but also the phrase "by itself." In other
words, under paragraph (B), the PCSO is prohibited from
"engag[ing] in . . . investments, programs, projects and
activities" if these involve sweepstakes races, lotteries and
other similar activities not only "in collaboration, association
or joint venture" with any other party but also "by itself."
Obviously, this prohibition cannot apply when the PCSO
conducts these activities itself. Otherwise, what paragraph (A)
authorizes the PCSO to do, paragraph (B) would prohibit.
The fact is that the phrase in question does not qualify the
authority of the PCSO under paragraph (A), but rather the
authority granted to it by paragraph (B). The amendment of
paragraph (B) by B.P. Blg. 42 was intended to enable the
PCSO to engage in certain investments, programs, projects
and activities for the purpose of raising funds for health
programs and charity. That is why the law provides that such
investments by the PCSO should "not compete with the
private sector in areas where investments are adequate as may
be determined by the National Economic and Development
Authority." Justice Davide, then an Assemblyman, made a
proposal which was accepted, reflecting the understanding that
the bill they were discussing concerned the authority of the
PCSO to invest in the business of others. The following
excerpt from the Record of the Batasan Pambansa shows this
to be the subject of the discussion:
MR. DAVIDE. May I introduce an amendment after
"adequate". The intention of the amendment is not to leave the
determination of whether it is adequate or not to anybody. And
my amendment is to add after "adequate" the words AS MAY
BE DETERMINED BY THE NATIONAL ECONOMIC
AND DEVELOPMENT AUTHORITY. As a mater of fact, it
will strengthen the authority to invest in these areas, provided
that the determination of whether the private sector's activity is
already adequate must be determined by the National
Economic and Development Authority.
Mr. ZAMORA. Mr. Speaker, the committee accepts the
proposed amendment.
MR. DAVIDE. Thank you, Mr. Speaker.
(2 RECORD OF THE BATASAN PAMBANSA, Sept. 6,
1979,
p. 1007)
Thus what the PCSO is prohibited from doing is from
investing in a business engaged in sweepstakes races, lotteries
and other similar activities. It is prohibited from doing so
whether "in collaboration, association or joint venture" with
others or "by itself." This seems to be the only possible
interpretation of §1 (A) and (B) in light of its text and its
legislative history. That there is today no other entity engaged
in sweepstakes races, lotteries and the like does not detract
from the validity of this interpretation.
III. The Court noted in its decision that the provisions of the
first contract, which were considered to be features of a joint
venture agreement, had been removed in the new contract. For
instance, §5 of the ELA provides that in the operation of the
on-line lottery, the PCSO must employ "its own competent
and qualified personnel." Petitioners claim, however, that the
"contemporaneous interpretation" of PGMC officials of this
provision is otherwise. They cite the testimony of Glen
Barroga of the PGMC before a Senate committee to the effect
that under the ELA the PGMC would be operating the lottery
system "side by side" with PCSO personnel as part of the
transfer of technology.
Whether the transfer of technology would result in a violation
of PCSO's franchise should be determined by facts and not by
what some officials of the PGMC state by way of opinion. In
the absence of proof to the contrary, it must be presumed that
§5 reflects the true intention of the parties. Thus, Art. 1370 of
the Civil Code says that "If the terms of a contract are clear
and leave no doubt upon the intention of the contracting
parties, the literal meaning of its stipulations shall control."
The intention of the parties must be ascertained from their
"contemporaneous and subsequent acts." (Art. 1371; Atlantic
Gulf Co. v. Insular Government, 10 Phil. 166 [1908]) It cannot
simply be judged from what one of them says. On the other
hand, the claim of third parties, like petitioners, that the clause
on upgrading of equipment would enable the parties after a
while to change the contract and enter into something else in
violation of the law is mere speculation and cannot be a basis
for judging the validity of the contract.
IV. It is contended that §1 of E.O. No. 301 covers all types of
"contract[s] for public services or for furnishing of supplies,
materials and equipment to the government or to any of its
branches, agencies or instrumentalities" and not only contracts
of purchase and sale. Consequently, a lease of equipment, like
the ELA, must be submitted to public bidding in order to be
valid. This contention is based on two premises: (1) that §1 of
E.O. No. 301 applies to any contract whereby the government
acquires title to or the use of the equipment and (2) that the
words "supplies," "materials," and "equipment" are distinct
from each other so that when an exception in §1 speaks of
"supplies," it cannot be construed to mean "equipment."
Petitioners' contention will not bear analysis. For example, the
term "supplies" is used in paragraph (a), which provides that a
contract for the furnishing of "supplies" in order to meet an
emergency is exempt from public bidding. Unless "supplies"
is construed to include "equipment," however, the lease of
heavy equipment needed for rescue operations in case of a
calamity will have to be submitted to public bidding before it
can be entered into by the government.
In dissent Justice Feliciano says that in such a situation the
government can simply resort to expropriation, paying
compensation afterward. This is just like purchasing the
equipment through negotiation when the question is whether
the purchase should be by public bidding, not to mention the
fact that the power to expropriate may not be exercised when
the government can very well negotiate with private owners.
Indeed, there are fundamental difficulties in simultaneously
contending (1) that E.O. No. 301, §1 covers both contracts of
sale and lease agreements and (2) that the words "supplies,"
"materials" and "equipment" can not be interchanged. Thus,
under paragraph (b) of §1, public bidding is not required
"whenever the supplies are to be used in connection with a
project or activity which cannot be delayed without causing
detriment to the public service." Following petitioners' theory,
there should be a public bidding before the government can
enter into a contract for the lease of bulldozers and dredging
equipment even if these are urgently needed in areas ravaged
by lahar because, first, lease contracts are covered by the
general rule and, second, the exception to public bidding in
paragraph (b) covers only "supplies" but not equipment.
To take still another example. Paragraph (d), which does away
with the requirement of public bidding "whenever the supplies
under procurement have been unsuccessfully placed on bid for
at least two consecutive times, either due to lack of bidders or
the offers received in each instance were exorbitant or
nonconforming to specifications." Again, following the theory
of the petitioners, a contract for the lease of equipment cannot
be entered into even if there are no bids because, first, lease
contracts are governed by the general rule on public bidding
and, second, the exception to public bidding in paragraph (d)
applies only to contracts for the furnishing of "supplies."
Other examples can be given to show the absurdity of
interpreting §1 as applicable to any contract for the furnishing
of supplies, materials and equipment and of considering the
words "supplies," "materials" and "equipment" to be not
interchangeable. Our ruling that §1 of E.O. No. 301 does not
cover the lease of equipment avoids these fundamental
difficulties and is supported by the text of §1, which is entitled
"Guidelines for Negotiated Contracts" and by the fact that the
only provisions of E.O. No. 301 on leases, namely, §§6 and 7,
concern the lease of buildings by or to the government. Thus
the text of §1 reads:
§1. Guidelines for Negotiated Contracts. — Any provision of
law, decree, executive order or other issuances to the contrary
notwithstanding, no contract for public services or for
furnishing supplies, materials and equipment to the
government or any of its branches, agencies or
instrumentalities shall be renewed or entered into without
public bidding, except under any of the following situations:
a. Whenever the supplies are urgently needed to meet an
emergency which may involve the loss of, or danger to, life
and/or property;
b. Whenever the supplies are to be used in connection with a
project or activity which cannot be delayed without causing
detriment to the public service;
c. Whenever the materials are sold by an exclusive distributor
or manufacturer who does not have subdealers selling at lower
prices and for which no suitable substitute can be obtained
elsewhere at more advantageous terms to the government;
d. Whenever the supplies under procurement have been
unsuccessfully placed on bid for at least two consecutive
times, either due to lack of bidders or the offers received in
each instance were exhorbitant or non-conforming to
specifications;
e. In cases where it is apparent that the requisition of the
needed supplies through negotiated purchase is most
advantageous to the government to be determined by the
Department Head concerned; and
f. Whenever the purchase is made from an agency of the
government.
Indeed, the purpose for promulgating E.O. No. 301 was
merely to decentralize the system of reviewing negotiated
contracts of purchase for the furnishing of supplies, materials
and equipment as well as lease contracts of buildings.
Theretofore, E.O. No. 298, promulgated on August 12, 1940,
required consultation with the Secretary of Justice and the
Department Head concerned and the approval of the President
of the Philippines before contracts for the furnishing of
supplies, materials and equipment could be made on a
negotiated basis, without public bidding. E.O. No. 301
changed this by providing as follows:
§2. Jurisdiction over Negotiated Contracts. — In line with the
principles of decentralization and accountability, negotiated
contracts for public services or for furnishing supplies,
materials or equipment may be entered into by the department
or agency head or the governing board of the government-
owned or controlled corporation concerned, without need of
prior approval by higher authorities, subject to availability of
funds, compliance with the standards or guidelines prescribed
in Section 1 hereof, and to the audit jurisdiction of the
commission on Audit in accordance with existing rules and
regulations.
Negotiated contracts involving P2,000,000 up to P10,000,000
shall be signed by the Secretary and two other
Undersecretaries.
xxx xxx xxx
§7. Jurisdiction Over Lease Contracts. — The heads of agency
intending to rent privately-owned buildings or spaces for their
use, or to lease out government-owned buildings or spaces for
private use, shall have authority to determine the
reasonableness of the terms of the lease and the rental rates
thereof, and to enter into such lease contracts without need of
prior approval by higher authorities, subject to compliance
with the uniform standards or guidelines established pursuant
to Section 6 hereof by the DPWH and to the audit jurisdiction
of COA or its duly authorized representative in accordance
with existing rules and regulations.
In sum, E.O. No. 301 applies only to contracts for the
purchase of supplies, materials and equipment, and it was
merely to change the system of administrative review of
emergency purchases, as theretofore prescribed by E.O. No.
298, that E.O. No. 301 was issued on July 26, 1987. Part B of
this Executive Order applies to leases of buildings, not of
equipment, and therefore does not govern the lease contract in
this case. Even if it applies, it does not require public bidding
for entering into it.
Our holding that E.O. No. 301, §1 applies only to contracts of
purchase and sale is conformable to P.D. No. 526,
promulgated on August 2, 1974, which is in pari materia. P.D.
No. 526 requires local governments to hold public bidding in
the "procurement of supplies." By specifying "procurement of
supplies" and excepting from the general
rule "purchases" when made under certain circumstances, P.D.
No. 526, §12 indicates quite clearly that it applies only to
contracts of purchase and sale. This provision reads:
§12. Procurement without public bidding. — Procurement of
supplies may be made without the benefit of public bidding in
the following modes:
(1) Personal canvass of responsible merchants;
(2) Emergency purchases;
(3) Direct purchases from manufacturers or exclusive
distributors;
(4) Thru the Bureau of Supply Coordination; and
(5) Purchase from other government entities or foreign
governments.
Sec. 3 broadly defines the term "supplies" as including —
everything except real estate, which may be needed in the
transaction of public business, or in the pursuit of any
undertaking, project, or activity, whether of the nature of
equipment, furniture, stationery, materials for construction, or
personal property of any sort, including non-personal or
contractual services such as the repair and maintenance of
equipment and furniture, as well as trucking, hauling,
janitorial, security, and related or analogous services.
Thus, the texts of both E.O. No. 301, §1 and of P.D. No. 526,
§§1 and 12, make it clear that only contracts for the purchase
and sale of supplies, materials and equipment are
contemplated by the rule concerning public biddings.

Finally, it is contended that equipment leases are attractive and

commonly used in place of contracts of purchase and sale
because of "multifarious credit and tax constraints" and
therefore could not have been left out from the requirement of
public bidding. Obviously these credit and tax constraints can
have no attraction to the government when considering the
advantages of sale over lease of equipment. The fact that lease
contracts are in common use is not a reason for implying that
the rule on public bidding applies not only to government
purchases but also to lease contracts. For the fact also is that
the government leases equipment, such as copying machines,
personal computers and the like, without going through public
bidding.

FOR THE FOREGOING REASONS, the motion for

reconsideration of petitioners is DENIED with finality.

SO ORDERED.
G.R. No. 157036 June 9, 2004
FRANCISCO I. CHAVEZ Petitioner,
vs.
HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS
EXECUTIVE SECRETARY; DIRECTOR GENERAL
HERMOGENES E. EBDANE, JR., IN HIS CAPACITY AS
THE CHIEF OF THE PNP, ET. AL., respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
The right of individuals to bear arms is not absolute, but is
subject to regulation. The maintenance of peace and
order1 and the protection of the people against violence are
constitutional duties of the State, and the right to bear arms is
to be construed in connection and in harmony with these
constitutional duties.
Before us is a petition for prohibition and injunction seeking
to enjoin the implementation of the "Guidelines in the
Implementation of the Ban on the Carrying of Firearms
Outside of Residence"2 (Guidelines) issued on January 31,
2003, by respondent Hermogenes E. Ebdane, Jr., Chief of the
Philippine National Police (PNP).
The facts are undisputed:
In January 2003, President Gloria Macapagal-Arroyo
delivered a speech before the members of the PNP stressing
the need for a nationwide gun ban in all public places to avert
the rising crime incidents. She directed the then PNP Chief,
respondent Ebdane, to suspend the issuance of Permits to
Carry Firearms Outside of Residence (PTCFOR), thus:
"THERE IS ALSO NEED TO FOCUS ON THE HIGH
PROFILE CRIMES THAT TEND TO DISTURB THE
PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY
– THE LATEST BEING THE KILLING OF FORMER NPA
LEADER ROLLY KINTANAR. I UNDERSTAND WE
ALREADY HAVE THE IDENTITY OF THE CULPRIT.
LET US BRING THEM TO THE BAR OF JUSTICE.
THE NPA WILL FIND IT MORE DIFFICULT TO CARRY
OUT THEIR PLOTS IF OUR LAW ENFORCEMENT
AGENCIES CAN RID THEMSELVES OF RASCALS IN
UNIFORM, AND ALSO IF WE ENFORCE A GUN BAN IN
PUBLIC PLACES.
THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND
INDEFINITELY THE ISSUANCE OF PERMIT TO CARRY
FIREARMS IN PUBLIC PLACES. THE ISSUANCE OF
PERMITS WILL NOW BE LIMITED ONLY TO
OWNERSHIP AND POSSESSION OF GUNS AND NOT TO
CARRYING THEM IN PUBLIC PLACES. FROM NOW
ON, ONLY THE UNIFORMED MEN IN THE MILITARY
AND AUTHORIZED LAW ENFORCEMENT OFFICERS
CAN CARRY FIREARMS IN PUBLIC PLACES, AND
ONLY PURSUANT TO EXISTING LAW. CIVILIAN
OWNERS MAY NO LONGER BRING THEIR FIREARMS
OUTSIDE THEIR RESIDENCES. THOSE WHO WANT TO
USE THEIR GUNS FOR TARGET PRACTICE WILL BE
GIVEN SPECIAL AND TEMPORARY PERMITS FROM
TIME TO TIME ONLY FOR THAT PURPOSE. AND THEY
MAY NOT LOAD THEIR GUNS WITH BULLETS UNTIL
THEY ARE IN THE PREMISES OF THE FIRING RANGE.
WE CANNOT DISREGARD THE PARAMOUNT NEED
FOR LAW AND ORDER. JUST AS WE CANNOT BE
HEEDLESS OF OUR PEOPLE’S ASPIRATIONS FOR
PEACE."
Acting on President Arroyo’s directive, respondent Ebdane
issued the assailed Guidelines quoted as follows:
"TO : All Concerned
FROM : Chief, PNP
SUBJECT : Guidelines in the Implementation of the Ban on
the Carrying of Firearms Outside of Residence.
DATE : January 31, 2003
1. Reference: PD 1866 dated June 29, 1983 and its
Implementing Rules and Regulations.
2. General:
The possession and carrying of firearms outside of residence is
a privilege granted by the State to its citizens for their
individual protection against all threats of lawlessness and
security.
As a rule, persons who are lawful holders of firearms (regular
license, special permit, certificate of registration or MR) are
prohibited from carrying their firearms outside of residence.
However, the Chief, Philippine National Police may, in
meritorious cases as determined by him and under conditions
as he may impose, authorize such person or persons to carry
firearms outside of residence.
3. Purposes:
This Memorandum prescribes the guidelines in the
implementation of the ban on the carrying of firearms outside
of residence as provided for in the Implementing Rules and
Regulations, Presidential Decree No. 1866, dated June 29,
1983 and as directed by PGMA. It also prescribes the
conditions, requirements and procedures under which
exemption from the ban may be granted.
4. Specific Instructions on the Ban on the Carrying of
Firearms:
a. All PTCFOR are hereby revoked. Authorized holders of
licensed firearms covered with valid PTCFOR may re-apply
for a new PTCFOR in accordance with the conditions
hereinafter prescribed.
b. All holders of licensed or government firearms are hereby
prohibited from carrying their firearms outside their residence
except those covered with mission/letter orders and duty detail
orders issued by competent authority pursuant to Section 5,
IRR, PD 1866, provided, that the said exception shall pertain
only to organic and regular employees.
5. The following persons may be authorized to carry firearms
outside of residence.
a. All persons whose application for a new PTCFOR has been
approved, provided, that the persons and security of those so
authorized are under actual threat, or by the nature of their
position, occupation and profession are under imminent
danger.
b. All organic and regular employees with Mission/Letter
Orders granted by their respective agencies so authorized
pursuant to Section 5, IRR, PD 1866, provided, that such
Mission/Letter Orders is valid only for the duration of the
official mission which in no case shall be more than ten (10)
days.
c. All guards covered with Duty Detail Orders granted by their
respective security agencies so authorized pursuant to Section
4, IRR, PD 1866, provided, that such DDO shall in no case
exceed 24-hour duration. d. Members of duly recognized Gun
Clubs issued Permit to Transport (PTT) by the PNP for
purposes of practice and competition, provided, that such
firearms while in transit must not be loaded with ammunition
and secured in an appropriate box or case detached from the
person. e. Authorized members of the Diplomatic Corps. 6.
Requirements for issuance of new PTCFOR: a. Written
request by the applicant addressed to Chief, PNP stating his
qualification to possess firearm and the reasons why he needs
to carry firearm outside of residence. b. Xerox copy of current
firearm license duly authenticated by Records Branch, FED; c.
Proof of actual threat, the details of which should be issued by
the Chief of Police/Provincial or City Directors and duly
validated by C, RIID; d. Copy of Drug Test Clearance, duly
authenticated by the Drug Testing Center, if photocopied; e.
Copy of DI/ RIID clearance, duly authenticated by ODI/RIID,
if photocopied; f. Copy of Neuro-Psychiatric Clearance duly
authenticated by NP Testing Center, if photocopied; g. Copy
of Certificate of Attendance to a Gun Safety Seminar, duly
validated by Chief, Operations Branch, FED; h. NBI
Clearance; i. Two (2) ID pictures (2" x 2") taken not earlier
than one (1) year from date of filing of application; and j.
Proof of Payment
7. Procedures: a. Applications may be filed directly to the
Office of the PTCFOR Secretariat in Camp Crame. In the
provinces, the applications may also be submitted to the Police
Regional Offices (PROs) and Provincial/City Police Offices
(P/CPOs) for initial processing before they are forwarded to
the office of the PTCFOR Secretariat. The processors, after
ascertaining that the documentary requirements are in order,
shall issue the Order of Payment (OP) indicating the amount
of fees payable by the applicant, who in turn shall pay the fees
to the Land Bank. b. Applications, which are duly processed
and prepared in accordance with existing rules and
regulations, shall be forwarded to the OCPNP for approval. c.
Upon approval of the application, OCPNP will issue PTCFOR
valid for one (1) year from date of issue. d. Applications for
renewal of PTCFOR shall be processed in accordance with the
provisions of par. 6 above. e. Application for possession and
carrying of firearms by diplomats in the Philippines shall be
processed in accordance with NHQ PNP Memo dated
September 25, 2000, with Subj: Possession and Carrying of
Firearms by Diplomats in the Philippines. 8. Restrictions in
the Carrying of Firearms: a. The firearm must not be displayed
or exposed to public view, except those authorized in uniform
and in the performance of their official duties. b. The firearm
shall not be brought inside public drinking and amusement
places, and all other commercial or public establishments."
Petitioner Francisco I. Chavez, a licensed gun owner to whom
a PTCFOR has been issued, requested the Department of
Interior and Local Government (DILG) to reconsider the
implementation of the assailed Guidelines. However, his
request was denied. Thus, he filed the present petition
impleading public respondents Ebdane, as Chief of PNP;
Alberto G. Romulo, as Executive Secretary; and Gerry L.
Barias, as Chief of the PNP-Firearms and Explosives Division.
He anchored his petition on the following grounds:
"I
THE PRESIDENT HAS NO POWER OR AUTHORITY –
MUCH LESS BY A MERE SPEECH – TO ALTER,
MODIFY OR AMEND THE LAW ON FIREARMS BY
IMPOSING A GUN BAN AND CANCELING EXISTING
PERMITS FOR GUNS TO BE CARRIED OUTSIDE
RESIDENCES.
II
OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE
ON THE GUN BAN; THE PRESIDENTIAL SPEECH
NEVER INVOKED POLICE POWER TO JUSTIFY THE
GUN BAN; THE PRESIDENT’S VERBAL DECLARATION
ON GUN BAN VIOLATED THE PEOPLE’S RIGHT TO
PROTECT LIFE AND THEIR PROPERTY RIGHT TO
CARRY FIREARMS.
III
THE PNP CHIEF HAS NO POWER OR AUTHORITY TO
ISSUE THE QUESTIONED GUIDELINES BECAUSE:
1) THERE IS NO LAW, STATUTE OR EXECUTIVE
ORDER WHICH GRANTS THE PNP CHIEF THE
AUTHORITY TO PROMULGATE THE PNP
GUIDELINES.
2) THE IMPLEMENTING RULES AND REGULATIONS
OF PD 1866 CANNOT BE THE SUBJECT OF ANOTHER
SET OF IMPLEMENTING GUIDELINES.
3) THE PRESIDENT’S SPEECH CANNOT BE A BASIS
FOR THE PROMULGATION OF IMPLEMENTNG
GUIDELINES ON THE GUN BAN.
IV
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES
IMPLEMENT PD 1866, AND THE AMENDMENTS
THERETO, THE PNP CHIEF STILL HAS NO POWER OR
AUTHORITY TO ISSUE THE SAME BECAUSE –
1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE
IRR SHALL BE PROMULGATED JOINTLY BY THE DOJ
AND THE DILG.
2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE
PROMULGATED BY THE CHIEF OF THE PHILIPPINE
CONSTABULARY.
V LONG BEFORE THEY WERE PUBLISHED.
THE PNP GUIDELINES VIOLATE THE DUE PROCESS
CLAUSE OF THE CONSTITUTION BECAUSE:
1) THE RIGHT TO OWN AND CARRY A FIREARM IS
NECESSARILY INTERTWINED WITH THE PEOPLE’S
INHERENT RIGHT TO LIFE AND TO PROTECT LIFE.
THUS, THE PNP GUIDELINES DEPRIVE PETITIONER
OF THIS RIGHT WITHOUT DUE PROCESS OF LAW
FOR:
A) THE PNP GUIDELINES DEPRIVE PETITIONER OF
HIS MOST POTENT, IF NOT HIS ONLY, MEANS TO
DEFEND HIMSELF.
B) THE QUESTIONED GUIDELINES STRIPPED
PETITIONER OF HIS MEANS OF PROTECTION
AGAINST CRIME DESPITE THE FACT THAT THE
STATE COULD NOT POSSIBLY PROTECT ITS
CITIZENS DUE TO THE INADEQUACY AND
INEFFICIENCY OF THE POLICE FORCE.
2) THE OWNESHIP AND CARRYING OF FIREARMS
ARE CONSTITUTIONALLY PROTECTED PROPERTY
RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT
DUE PROCESS OF LAW AND WITHOUT JUST CAUSE.
VI
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES
WERE ISSUED IN THE EXERCISE OF POLICE POWER,
THE SAME IS AN INVALID EXERCISE THEREOF SINCE
THE MEANS USED THEREFOR ARE UNREASONABLE
AND UNNCESSARY FOR THE ACCOMPLISHMENT OF
ITS PURPOSE – TO DETER AND PREVENT CRIME –
THEREBY BECOMING UNDULY OPPRESSIVE TO
LAW-ABIDING GUN-OWNERS.
VII
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE
AND CONFISCATORY SINCE IT REVOKED ALL
EXISTING PERMITS TO CARRY WITHOUT, HOWEVER,
REFUNDING THE PAYMENT THE PNP RECEIVED
FROM THOSE WHO ALREADY PAID THEREFOR.
VIII
THE PNP GUIDELINES VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION
BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE
ONLY TO LAW-ABIDING GUN OWNERS WHILE
LEAVING OTHER GUN-OWNERS – THE
LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-
UPPERS, MNLF, MILF, ABU SAYYAF COLLECTIVELY,
AND NPA) – UNTOUCHED.
IX
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE
AND UNFAIR BECAUSE THEY WERE IMPLEMENTED
X
THE PNP GUIDELINES ARE EFFECTIVELY AN EX
POST FACTO LAW SINCE THEY APPLY
RETROACTIVELY AND PUNISH ALL THOSE WHO
WERE ALREADY GRANTED PERMITS TO CARRY
OUTSIDE OF RESIDENCE LONG BEFORE THEIR
PROMULGATION."
Petitioner’s submissions may be synthesized into five (5)
major issues:
First, whether respondent Ebdane is authorized to issue the
assailed Guidelines;
Second, whether the citizens’ right to bear arms is a
constitutional right?;
Third, whether the revocation of petitioner’s PTCFOR
pursuant to the assailed Guidelines is a violation of his right to
property?;
Fourth, whether the issuance of the assailed Guidelines is a
valid exercise of police power?; and
Fifth, whether the assailed Guidelines constitute an ex post
facto law?
The Solicitor General seeks the dismissal of the petition
pursuant to the doctrine of hierarchy of courts. Nonetheless, in
refutation of petitioner’s arguments, he contends that: (1) the
PNP Chief is authorized to issue the assailed Guidelines; (2)
petitioner does not have a constitutional right to own and carry
firearms; (3) the assailed Guidelines do not violate the due
process clause of the Constitution; and (4) the assailed
Guidelines do not constitute an ex post facto law.
Initially, we must resolve the procedural barrier.
On the alleged breach of the doctrine of hierarchy of courts,
suffice it to say that the doctrine is not an iron-clad dictum. In
several instances where this Court was confronted with cases
of national interest and of serious implications, it never
hesitated to set aside the rule and proceed with the judicial
determination of the cases.3 The case at bar is of similar
import as it involves the citizens’ right to bear arms.
I
Authority of the PNP Chief
Relying on the principle of separation of powers, petitioner
argues that only Congress can withhold his right to bear arms.
In revoking all existing PTCFOR, President Arroyo and
respondent Ebdane transgressed the settled principle and
arrogated upon themselves a power they do not possess – the
legislative power.
We are not persuaded.
It is true that under our constitutional system, the powers of
government are distributed among three coordinate and
substantially independent departments: the legislative, the
executive and the judiciary. Each has exclusive cognizance of
the matters within its jurisdiction and is supreme within its
own sphere.4
Pertinently, the power to make laws – the legislative power –
is vested in Congress.5 Congress may not escape its duties and
responsibilities by delegating that power to any other body or
authority. Any attempt to abdicate the power is
unconstitutional and void, on the principle that "delegata
potestas non potest delegari" – "delegated power may not be
delegated."6
The rule which forbids the delegation of legislative power,
however, is not absolute and inflexible. It admits of
exceptions. An exception sanctioned by immemorial practice
permits the legislative body to delegate its licensing power to
certain persons, municipal corporations, towns, boards,
councils, commissions, commissioners, auditors, bureaus and
directors.7 Such licensing power includes the power to
promulgate necessary rules and regulations.8
The evolution of our laws on firearms shows that since the
early days of our Republic, the legislature’s tendency was
always towards the delegation of power. Act No.
1780,9 delegated upon the Governor-General (now the
President) the authority (1) to approve or disapprove
applications of any person for a license to deal in firearms or
to possess the same for personal protection, hunting and other
lawful purposes; and (2) to revoke such license any
time.10 Further, it authorized him to issue regulations which
he may deem necessary for the proper enforcement of the
Act.11 With the enactment of Act No. 2711, the "Revised
Administrative Code of 1917," the laws on firearms were
integrated.12 The Act retained the authority of the Governor
General provided in Act No. 1780. Subsequently, the growing
complexity in the Office of the Governor-General resulted in
the delegation of his authority to the Chief of the
Constabulary. On January 21, 1919, Acting Governor-General
Charles E. Yeater issued Executive Order No. 813 authorizing
and directing the Chief of Constabulary to act on his behalf in
approving and disapproving applications for personal, special
and hunting licenses. This was followed by Executive Order
No. 6114 designating the Philippine Constabulary (PC) as the
government custodian of all firearms, ammunitions and
explosives. Executive Order No. 215,15 issued by President
Diosdado Macapagal on December 3, 1965, granted the Chief
of the Constabulary, not only the authority to approve or
disapprove applications for personal, special and hunting
license, but also the authority to revoke the same. With the
foregoing developments, it is accurate to say that the Chief of
the Constabulary had exercised the authority for a long time.
In fact, subsequent issuances such as Sections 2 and 3 of the
Implementing Rules and Regulations of Presidential Decree
No. 186616 perpetuate such authority of the Chief of the
Constabulary. Section 2 specifically provides that any person
or entity desiring to possess any firearm "shall first secure the
necessary permit/license/authority from the Chief of the
Constabulary." With regard to the issuance of PTCFOR,
Section 3 imparts: "The Chief of Constabulary may, in
meritorious cases as determined by him and under such
conditions as he may impose, authorize lawful holders of
firearms to carry them outside of residence." These provisions
are issued pursuant to the general power granted by P.D. No.
1866 empowering him to promulgate rules and regulations for
the effective implementation of the decree.17 At this juncture,
it bears emphasis that P.D. No. 1866 is the chief law
governing possession of firearms in the Philippines and that it
was issued by President Ferdinand E. Marcos in the exercise
of his legislative power.18 In an attempt to evade the
application of the above-mentioned laws and regulations,
petitioner argues that the "Chief of the PNP" is not the same as
the "Chief of the Constabulary," the PC being a mere unit or
component of the newly established PNP. He contends further
that Republic Act No. 829419 amended P.D. No. 1866 such
that the authority to issue rules and regulations regarding
firearms is now jointly vested in the Department of Justice and
the DILG, not the Chief of the Constabulary.20
Petitioner’s submission is bereft of merit.
By virtue of Republic Act No. 6975,21 the Philippine National
Police (PNP) absorbed the Philippine Constabulary (PC).
Consequently, the PNP Chief succeeded the Chief of the
Constabulary and, therefore, assumed the latter’s licensing
authority. Section 24 thereof specifies, as one of PNP’s
powers, the issuance of licenses for the possession of firearms
and explosives in accordance with law.22 This is in
conjunction with the PNP Chief’s "power to issue detailed
implementing policies and instructions" on such "matters as
may be necessary to effectively carry out the functions,
powers and duties" of the PNP.23
Contrary to petitioner’s contention, R.A. No. 8294 does not
divest the Chief of the Constabulary (now the PNP Chief) of
his authority to promulgate rules and regulations for the
effective implementation of P.D. No. 1866. For one, R.A. No.
8294 did not repeal entirely P.D. No. 1866. It merely provides
for the reduction of penalties for illegal possession of firearms.
Thus, the provision of P.D. No. 1866 granting to the Chief of
the Constabulary the authority to issue rules and regulations
regarding firearms remains effective. Correspondingly, the
Implementing Rules and Regulations dated September 15,
1997 jointly issued by the Department of Justice and the DILG
pursuant to Section 6 of R.A. No. 8294 deal only with the
automatic review, by the Director of the Bureau of Corrections
or the Warden of a provincial or city jail, of the records of
convicts for violations of P.D. No. 1866. The Rules seek to
give effect to the beneficent provisions of R.A. No. 8294,
thereby ensuring the early release and reintegration of the
convicts into the community.
Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the
PNP Chief to issue the assailed guidelines.
Corollarily, petitioner disputes President Arroyo’s declaration
of a nationwide gun ban, arguing that "she has no authority to
alter, modify, or amend the law on firearms through a mere
speech."
First, it must be emphasized that President Arroyo’s speech
was just an expression of her policy and a directive to her
subordinate. It cannot, therefore, be argued that President
Arroyo enacted a law through a mere speech.
Second, at the apex of the entire executive officialdom is the
President. Section 17, Article VII of the Constitution specifies
his power as Chief Executive, thus: "The President shall have
control of all the executive departments, bureaus and offices.
He shall ensure that the laws be faithfully executed." As Chief
Executive, President Arroyo holds the steering wheel that
controls the course of her government. She lays down policies
in the execution of her plans and programs. Whatever policy
she chooses, she has her subordinates to implement them. In
short, she has the power of control. Whenever a specific
function is entrusted by law or regulation to her subordinate,
she may act directly or merely direct the performance of a
duty.24 Thus, when President Arroyo directed respondent
Ebdane to suspend the issuance of PTCFOR, she was just
directing a subordinate to perform an assigned duty. Such act
is well within the prerogative of her office.
II
Right to bear arms: Constitutional or Statutory?
Petitioner earnestly contends that his right to bear arms is a
constitutionally-protected right. This, he mainly anchors on
various American authorities. We therefore find it imperative
to determine the nature of the right in light of American
jurisprudence.
The bearing of arms is a tradition deeply rooted in the English
and American society. It antedates not only the American
Constitution but also the discovery of firearms.25
A provision commonly invoked by the American people to
justify their possession of firearms is the Second Amendment
of the Constitution of the United States of America, which
reads:
"A well regulated militia, being necessary for the security of
free state, the right of the people to keep and bear Arms, shall
not be infringed."
An examination of the historical background of the foregoing
provision shows that it pertains to the citizens’ "collective
right" to take arms in defense of the State, not to the citizens’
"individual right" to own and possess arms. The setting under
which the right was contemplated has a profound connection
with the keeping and maintenance of a militia or an armed
citizenry. That this is how the right was construed is evident in
early American cases.
The first case involving the interpretation of the Second
Amendment that reached the United States Supreme Court
is United States vs. Miller.26 Here, the indictment charged the
defendants with transporting an unregistered "Stevens
shotgun" without the required stamped written order, contrary
to the National Firearms Act. The defendants filed a demurrer
challenging the facial validity of the indictment on the ground
that the National Firearms Act offends the inhibition of the
Second Amendment. The District Court sustained the
demurrer and quashed the indictment. On appeal, the Supreme
Court interpreted the right to bear arms under the Second
Amendment as referring to the collective right of those
comprising the Militia – a body of citizens enrolled for
military discipline. It does not pertain to the individual right of
citizen to bear arm. Miller expresses its holding as follows:
"In the absence of any evidence tending to show that
possession or use of a ‘shotgun having a barrel of less than
eighteen inches in length’ at this time has some reasonable
relationship to the preservation or efficiency of a well
regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument.
Certainly it is not within judicial notice that this weapon is any
part of the ordinary military equipment or that its use could
contribute to the common defense.
The same doctrine was re-echoed in Cases vs. United
States.27 Here, the Circuit Court of Appeals held that
the Federal Firearms Act, as applied to appellant, does not
conflict with the Second Amendment. It ruled that:
"While [appellant’s] weapon may be capable of military use,
or while at least familiarity with it might be regarded as of
value in training a person to use a comparable weapon of
military type and caliber, still there is no evidence that the
appellant was or ever had been a member of any military
organization or that his use of the weapon under the
circumstances disclosed was in preparation for a military
career. In fact, the only inference possible is that the appellant
at the time charged in the indictment was in possession of,
transporting, and using the firearm and ammunition purely and
simply on a frolic of his own and without any thought or
intention of contributing to the efficiency of the well regulated
militia which the Second amendment was designed to foster as
necessary to the security of a free state."
With the foregoing jurisprudence, it is erroneous to assume
that the US Constitution grants upon the American people the
right to bear arms. In a more explicit language, the United
States vs. Cruikshank28 decreed: "The right of the people to
keep and bear arms is not a right granted by the Constitution.
Neither is it in any way dependent upon that instrument."
Likewise, in People vs. Persce,29 the Court of Appeals said:
"Neither is there any constitutional provision securing the
right to bear arms which prohibits legislation with reference to
such weapons as are specifically before us for
consideration. The provision in the Constitution of the United
States that the right of the people to keep and bear arms shall
not be infringed is not designed to control legislation by the
state."
With more reason, the right to bear arms cannot be classified
as fundamental under the 1987 Philippine Constitution. Our
Constitution contains no provision similar to the Second
Amendment, as we aptly observed in the early case of United
States vs. Villareal:30
"The only contention of counsel which would appear to
necessitate comment is the claim that the statute penalizing the
carrying of concealed weapons and prohibiting the keeping
and the use of firearms without a license, is in violation of the
provisions of section 5 of the Philippine Bill of Rights.
Counsel does not expressly rely upon the prohibition in the
United States Constitution against the infringement of the
right of the people of the United States to keep and bear arms
(U. S. Constitution, amendment 2), which is not included in
the Philippine Bill. But it may be well, in passing, to point out
that in no event could this constitutional guaranty have any
bearing on the case at bar, not only because it has not been
expressly extended to the Philippine Islands, but also because
it has been uniformly held that both this and similar provisions
in State constitutions apply only to arms used in civilized
warfare (see cases cited in 40 Cyc., 853, note 18); x x x."
Evidently, possession of firearms by the citizens in the
Philippines is the exception, not the rule. The right to bear
arms is a mere statutory privilege, not a constitutional right. It
is a mere statutory creation. What then are the laws that grant
such right to the Filipinos? The first real firearm law is Act
No. 1780 enacted by the Philippine Commission on October
12, 1907. It was passed to regulate the importation,
acquisition, possession, use and transfer of firearms. Section 9
thereof provides:
"SECTION 9. Any person desiring to possess one or more
firearms for personal protection, or for use in hunting or other
lawful purposes only, and ammunition therefor, shall make
application for a license to possess such firearm or firearms or
ammunition as hereinafter provided. Upon making such
application, and before receiving the license, the applicant
shall make a cash deposit in the postal savings bank in the sum
of one hundred pesos for each firearm for which the license is
to be issued, or in lieu thereof he may give a bond in such
form as the Governor-General may prescribe, payable to the
Government of the Philippine Islands, in the sum of two
hundred pesos for each such firearm: PROVIDED,
HOWEVER, That persons who are actually members of gun
clubs, duly formed and organized at the time of the passage of
this Act, who at such time have a license to possess firearms,
shall not be required to make the deposit or give the bond
prescribed by this section, and the bond duly executed by such
person in accordance with existing law shall continue to be
security for the safekeeping of such arms."
The foregoing provision was restated in Section 88731 of Act
No. 2711 that integrated the firearm laws. Thereafter,
President Ferdinand E. Marcos issued P.D. No. 1866. It
codified the laws on illegal possession, manufacture, dealing
in, acquisition of firearms, ammunitions or explosives and
imposed stiffer penalties for their violation. R.A. No. 8294
amended some of the provisions of P.D. No. 1866 by reducing
the imposable penalties. Being a mere statutory creation, the
right to bear arms cannot be considered an inalienable or
absolute right.
III
Vested Property Right
Section 1, Article III of the Constitution provides that "no
person shall be deprived of life, liberty or property without
due process of law." Petitioner invokes this provision,
asserting that the revocation of his PTCFOR pursuant to the
assailed Guidelines deprived him of his "vested property right"
without due process of law and in violation of the equal
protection of law.
Petitioner cannot find solace to the above-quoted
Constitutional provision.
In evaluating a due process claim, the first and foremost
consideration must be whether life, liberty or property interest
exists.32 The bulk of jurisprudence is that a license
authorizing a person to enjoy a certain privilege is neither a
property nor property right. In Tan vs. The Director of
Forestry,33 we ruled that "a license is merely a permit or
privilege to do what otherwise would be unlawful, and is not a
contract between the authority granting it and the person to
whom it is granted; neither is it property or a property right,
nor does it create a vested right." In a more emphatic
pronouncement, we held in Oposa vs. Factoran, Jr.34 that:
"Needless to say, all licenses may thus be revoked or
rescinded by executive action. It is not a contract, property or
a property right protected by the due process clause of the
Constitution."
Petitioner, in arguing that his PTCFOR is a constitutionally
protected property right, relied heavily on Bell vs.
Burson35 wherein the U.S. Supreme Court ruled that "once a
license is issued, continued possession may become essential
in the pursuit of livelihood. Suspension of issued licenses thus
involves state action that adjudicates important interest of the
licensees."
Petitioner’s reliance on Bell is misplaced. This case involves a
driver’s license, not a license to bear arms. The catena of
American jurisprudence involving license to bear arms is
perfectly in accord with our ruling that a PTCFOR is neither a
property nor a property right. In Erdelyi vs. O’Brien,36 the
plaintiff who was denied a license to carry a firearm brought
suit against the defendant who was the Chief of Police of the
City of Manhattan Beach, on the ground that the denial
violated her constitutional rights to due process and equal
protection of the laws. The United States Court of Appeals
Ninth Circuit ruled that Erdelyi did not have a property
interest in obtaining a license to carry a firearm, ratiocinating
as follows:
"Property interests protected by the Due Process Clause of the
Fourteenth Amendment do not arise whenever a person has
only ‘an abstract need or desire for’, or ‘unilateral expectation
of a benefit. x x x Rather, they arise from ‘legitimate claims of
entitlement… defined by existing rules or understanding that
stem from an independent source, such as state law. x x x
Concealed weapons are closely regulated by the State of
California. x x x Whether the statute creates a property interest
in concealed weapons licenses depends ‘largely upon the
extent to which the statute contains mandatory language that
restricts the discretion of the [issuing authority] to deny
licenses to applicants who claim to meet the minimum
eligibility requirements. x x x Where state law gives the
issuing authority broad discretion to grant or deny license
application in a closely regulated field, initial applicants do
not have a property right in such licenses protected by the
Fourteenth Amendment. See Jacobson, supra, 627 F.2d at 180
(gaming license under Nevada law);"
Similar doctrine was announced in Potts vs. City of
Philadelphia,37 Conway vs. King,38 Nichols vs. County of
Sta. Clara,39 and Gross vs. Norton.40 These cases enunciated
that the test whether the statute creates a property right or
interest depends largely on the extent of discretion granted to
the issuing authority.
In our jurisdiction, the PNP Chief is granted broad discretion
in the issuance of PTCFOR. This is evident from the tenor of
the Implementing Rules and Regulations of P.D. No. 1866
which state that "the Chief of Constabulary may, in
meritorious cases as determined by him and under such
conditions as he may impose, authorize lawful holders of
firearms to carry them outside of residence." Following the
American doctrine, it is indeed logical to say that a PTCFOR
does not constitute a property right protected under our
Constitution.
Consequently, a PTCFOR, just like ordinary licenses in other
regulated fields, may be revoked any time. It does not confer
an absolute right, but only a personal privilege to be exercised
under existing restrictions, and such as may thereafter be
reasonably imposed.41 A licensee takes his license subject to
such conditions as the Legislature sees fit to impose, and one
of the statutory conditions of this license is that it might be
revoked by the selectmen at their pleasure. Such a license is
not a contract, and a revocation of it does not deprive the
defendant of any property, immunity, or privilege within the
meaning of these words in the Declaration of Rights.42 The
US Supreme Court, in Doyle vs. Continental Ins. Co,43 held:
"The correlative power to revoke or recall a permission is a
necessary consequence of the main power. A mere license by
the State is always revocable."
The foregoing jurisprudence has been resonating in the
Philippines as early as 1908. Thus, in The Government of the
Philippine Islands vs. Amechazurra44 we ruled:
"x x x no private person is bound to keep arms. Whether he
does or not is entirely optional with himself, but if, for his own
convenience or pleasure, he desires to possess arms, he must
do so upon such terms as the Government sees fit to impose,
for the right to keep and bear arms is not secured to him by
law. The Government can impose upon him such terms as it
pleases. If he is not satisfied with the terms imposed, he
should decline to accept them, but, if for the purpose of
securing possession of the arms he does agree to such
conditions, he must fulfill them."
IV
Police Power
At any rate, assuming that petitioner’s PTCFOR constitutes a
property right protected by the Constitution, the same cannot
be considered as absolute as to be placed beyond the reach of
the State’s police power. All property in the state is held
subject to its general regulations, necessary to the common
good and general welfare.
In a number of cases, we laid down the test to determine the
validity of a police measure, thus:
(1) The interests of the public generally, as distinguished from
those of a particular class, require the exercise of the police
power; and
(2) The means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive
upon individuals.
Deeper reflection will reveal that the test merely reiterates the
essence of the constitutional guarantees of substantive due
process, equal protection, and non-impairment of property
rights.
It is apparent from the assailed Guidelines that the basis for its
issuance was the need for peace and order in the society.
Owing to the proliferation of crimes, particularly those
committed by the New People’s Army (NPA), which tends to
disturb the peace of the community, President Arroyo deemed
it best to impose a nationwide gun ban. Undeniably, the
motivating factor in the issuance of the assailed Guidelines is
the interest of the public in general.
The only question that can then arise is whether the means
employed are appropriate and reasonably necessary for the
accomplishment of the purpose and are not unduly oppressive.
In the instant case, the assailed Guidelines do not entirely
prohibit possession of firearms. What they proscribe is merely
the carrying of firearms outside of residence. However, those
who wish to carry their firearms outside of their residences
may re-apply for a new PTCFOR. This we believe is a
reasonable regulation. If the carrying of firearms is regulated,
necessarily, crime incidents will be curtailed. Criminals carry
their weapon to hunt for their victims; they do not wait in the
comfort of their homes. With the revocation of all PTCFOR, it
would be difficult for criminals to roam around with their
guns. On the other hand, it would be easier for the PNP to
apprehend them.

Notably, laws regulating the acquisition or possession of guns

have frequently been upheld as reasonable exercise of the
police power.45 In State vs. Reams,46 it was held that the
legislature may regulate the right to bear arms in a manner
conducive to the public peace. With the promotion of public
peace as its objective and the revocation of all PTCFOR as the
means, we are convinced that the issuance of the assailed
Guidelines constitutes a reasonable exercise of police power.
The ruling in United States vs. Villareal,47 is relevant, thus:

"We think there can be no question as to the reasonableness of

a statutory regulation prohibiting the carrying of concealed
weapons as a police measure well calculated to restrict the too
frequent resort to such weapons in moments of anger and
excitement. We do not doubt that the strict enforcement of
such a regulation would tend to increase the security of life
and limb, and to suppress crime and lawlessness, in any
community wherein the practice of carrying concealed
weapons prevails, and this without being unduly oppressive
upon the individual owners of these weapons. It follows that
its enactment by the legislature is a proper and legitimate
exercise of the police power of the state."

Ex post facto law

In Mekin vs. Wolfe,48 an ex post facto law has been defined

as one – (a) which makes an action done before the passing of
the law and which was innocent when done criminal, and
punishes such action; or (b) which aggravates a crime or
makes it greater than it was when committed; or (c) which
changes the punishment and inflicts a greater punishment than
the law annexed to the crime when it was committed; or (d)
which alters the legal rules of evidence and receives less or
different testimony than the law required at the time of the
commission of the offense in order to convict the defendant.

We see no reason to devote much discussion on the matter. Ex

post facto law prohibits retrospectivity of penal laws.49 The
assailed Guidelines cannot be considered as an ex post facto
law because it is prospective in its application. Contrary to
petitioner’s argument, it would not result in the punishment of
acts previously committed.

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.
G.R. No. 205728 January 21, 2015
THE DIOCESE OF BACOLOD, REPRESENTED BY THE
MOST REV. BISHOP VICENTE M. NAVARRA and THE
BISHOP HIMSELF IN HIS PERSONAL
CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION
OFFICER OF BACOLOD CITY, ATTY. MAVIL V.
MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority
emanates from them." – Article II, Section 1, Constitution
All governmental authority emanates from our people. No
unreasonable restrictions of the fundamental and preferred
right to expression of the electorate during political contests
no matter how seemingly benign will be tolerated.
This case defines the extent that our people may shape the
debates during elections. It is significant and of first
impression. We are asked to decide whether the Commission
on Elections (COMELEC) has the competence to limit
expressions made by the citizens — who are not candidates —
during elections.
Before us is a special civil action for certiorari and prohibition
with application for preliminary injunction and temporary
restraining order1 under Rule 65 of the Rules of Court seeking
to nullify COMELEC’s Notice to Remove Campaign
Materials2 dated February 22, 2013 and letter3 issued on
February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins
within a private compound housing the San Sebastian
Cathedral of Bacolod. Each tarpaulin was approximately six
feet (6') by ten feet (10') in size. They were posted on the front
walls of the cathedral within public view. The first tarpaulin
contains the message "IBASURA RH Law" referring to the
Reproductive Health Law of 2012 or Republic Act No. 10354.
The second tarpaulin is the subject of the present case.4 This
tarpaulin contains the heading "Conscience Vote" and lists
candidates as either "(Anti-RH) Team Buhay" with a check
mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The
electoral candidates were classified according to their vote on
the adoption of Republic Act No. 10354, otherwise known as
the RH Law.6Those who voted for the passing of the law were
classified by petitioners as comprising "Team Patay," while
those who voted against it form "Team Buhay":7
During oral arguments, respondents conceded that the
tarpaulin was neither sponsored nor paid for by any candidate.
Petitioners also conceded that the tarpaulin contains names
ofcandidates for the 2013 elections, but not of politicians who
helped in the passage of the RH Law but were not candidates
for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon,
in her capacity as Election Officer of Bacolod City, issued a
Notice to Remove Campaign Materials8 addressed to
petitioner Most Rev. Bishop Vicente M. Navarra. The election
officer ordered the tarpaulin’s removal within three (3) days
from receipt for being oversized. COMELEC Resolution No.
9615 provides for the size requirement of two feet (2’) by
three feet (3’).9
On February 25, 2013, petitioners replied10 requesting,
among others, that (1) petitioner Bishop be given a definite
ruling by COMELEC Law Department regarding the
tarpaulin; and (2) pending this opinion and the availment of
legal remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a
letter12 ordering the immediate removal of the tarpaulin;
otherwise, it will be constrained to file an election offense
against petitioners. The letter of COMELEC Law Department
was silenton the remedies available to petitioners. The letter
provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this
City, Atty. Mavil Majarucon, had already given you notice on
February 22, 2013 as regards the election propaganda material
posted on the church vicinity promoting for or against the
candidates and party-list groups with the following names and
messages, particularly described as follows:
Material size : six feet (6’) by ten feet (10’)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be
in violation of Comelec Resolution No. 9615 promulgated on
January 15, 2013 particularly on the size (even with the
subsequent division of the said tarpaulin into two), as the
lawful size for election propaganda material is only two feet
(2’) by three feet (3’), please order/cause the immediate
removal of said election propaganda material, otherwise, we
shall be constrained to file an election offense case against
you.
We pray that the Catholic Church will be the first institution to
help the Commission on Elections inensuring the conduct of
peaceful, orderly, honest and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their
exercise of free speech, petitioners initiated this case through
this petition for certiorari and prohibition with application for
preliminary injunction and temporary restraining
order.14 They question respondents’ notice dated February 22,
2013 and letter issued on February 27, 2013. They pray that:
(1) the petition be given due course; (2) a temporary
restraining order (TRO) and/or a writ of preliminary
injunction be issued restraining respondents from further
proceeding in enforcing their orders for the removal of the
Team Patay tarpaulin; and (3) after notice and hearing, a
decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently
restraining respondents from enforcing them or any other
similar order.15
After due deliberation, this court, on March 5, 2013, issued a
temporary restraining order enjoining respondents from
enforcing the assailed notice and letter, and set oral arguments
on March 19, 2013.16
On March 13, 2013, respondents filed their
comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before
this court is not the proper remedy to question the notice and
letter of respondents; and (2) the tarpaulin is an election
propaganda subject to regulation by COMELEC pursuant to
its mandate under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering its
removal for being oversized are valid and constitutional.18
During the hearing held on March 19, 2013, the parties were
directed to file their respective memoranda within 10 days or
by April 1, 2013, taking into consideration the intervening
holidays.19
The issues, which also served as guide for the oral arguments,
are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER
BY ELECTION OFFICER MAJARUCON AND THE 27
FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC WHICH
WOULD WARRANT A REVIEW OF THIS COURT VIA
RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE
HIERARCHY OF COURTS DOCTRINE AND
JURISPRUDENTIAL RULES GOVERNING APPEALS
FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE
AFOREMENTIONED ORDERS ARE NOT CONSIDERED
JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC, WHETHER THERE ARE EXCEPTIONAL
CIRCUMSTANCES WHICH WOULD ALLOW THIS
COURT TO TAKE COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE
WHETHER THE TARPAULINS ARE "POLITICAL
ADVERTISEMENT" OR "ELECTION PROPAGANDA"
CONSIDERING THAT PETITIONER IS NOT A
POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR
EXPRESSION (PROTECTED SPEECH), OR ELECTION
PROPAGANDA/POLITICAL ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS
ARE A FORM OF EXPRESSION, WHETHER THE
COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE
REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER
BY ELECTION OFFICER MAJARUCON AND THE 27
FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF
SEPARATION OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN
POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF
CHURCH AND STATE.
I
PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground
that the notice and letter are not final orders, decisions,
rulings, or judgments of the COMELEC En Banc issued in the
exercise of its adjudicatory powers, reviewable via Rule 64 of
the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the
COMELEC. Rule 65 is applicable especially to raise
objections relating to a grave abuse of discretion resulting in
the ouster of jurisdiction.22 As a special civil action, there
must also be a showing that there be no plain, speedy, and
adequate remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not
subject to review by this court, whose power to review is
"limited only to final decisions, rulings and orders of the
COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead, respondents
claim that the assailed notice and letter are reviewable only by
COMELEC itself pursuant to Article IX-C, Section 2(3) of the
Constitution24 on COMELEC’s power to decide all questions
affecting elections.25 Respondents invoke the cases of Ambil,
Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v.
COMELEC,30 to illustrate how judicialintervention is limited
to final decisions, orders, rulings and judgments of the
COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the
gubernatorial race of Eastern Samar filed the election
protest.32 At issue was the validity of the promulgation of a
COMELEC Division resolution.33 No motion for
reconsideration was filed to raise this issue before the
COMELEC En Banc. This court declared that it did not have
jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the
Constitution]34 to mean final orders, rulings and decisionsof
the COMELEC rendered in the exercise of its adjudicatory or
quasi-judicial powers." This decision must be a final decision
or resolution of the Comelec en banc, not of a division,
certainly not an interlocutory order of a division.The Supreme
Court has no power to review viacertiorari, an interlocutory
order or even a final resolution of a Division of the
Commission on Elections.35 (Emphasis in the original,
citations omitted)
However, in the next case cited by respondents, Repol v.
COMELEC, this court provided exceptions to this general
rule. Repolwas another election protest case, involving the
mayoralty elections in Pagsanghan, Samar.36 This time, the
case was brought to this court because the COMELEC First
Division issued a status quo ante order against the Regional
Trial Court executing its decision pending appeal.37 This
court’s ponencia discussed the general rule enunciated in
Ambil, Jr. that it cannot take jurisdiction to review
interlocutory orders of a COMELEC Division.38However,
consistent with ABS-CBN Broadcasting Corporation v.
COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural
requirement [of filing a motion for reconsideration] may be
glossed over to prevent miscarriage of justice, when the issue
involves the principle of social justice or the protection of
labor, when the decision or resolution sought to be set aside is
a nullity, or when the need for relief is extremely urgent and
certiorari is the only adequate and speedy remedy available.40
Based on ABS-CBN, this court could review orders and
decisions of COMELEC — in electoral contests — despite not
being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity;
or
5) The need for relief is extremely urgent and certiorari is the
only adequate and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided
that the status quo anteorder issued by the COMELEC
Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case
was also an election protest case involving candidates for the
city council of Muntinlupa City.41 Petitioners in Soriano,
Jr.filed before this court a petition for certiorari against an
interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the
COMELEC First Division dismissed the main election protest
case.43 Sorianoapplied the general rule that only final orders
should be questioned with this court. The ponencia for this
court, however, acknowledged the exceptions to the general
rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was
a disqualification case of one of the mayoralty candidates of
Meycauayan, Bulacan.45 The COMELEC Second Division
ruled that petitioner could not qualify for the 2007 elections
due to the findings in an administrative case that he engaged in
vote buying in the 1995 elections.46No motion for
reconsideration was filed before the COMELEC En Banc.
This court, however, took cognizance of this case applying
one of the exceptions in ABS-CBN: The assailed resolution
was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent
election protest case involving the mayoralty candidates of
Taguig City.48 Petitioner assailed a resolution of the
COMELEC denying her motion for reconsideration to dismiss
the election protest petition for lack of form and
substance.49 This court clarified the general rule and refused
to take cognizance of the review of the COMELEC order.
While recognizing the exceptions in ABS-CBN, this court
ruled that these exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by
respondents do not operate as precedents to oust this court
from taking jurisdiction over this case. All these cases cited
involve election protests or disqualification cases filed by the
losing candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for
public office. Their petition is filed to assert their fundamental
right to expression.
Furthermore, all these cases cited by respondents pertained to
COMELEC’s exercise of its adjudicatory or quasi-judicial
power. This case pertains to acts of COMELEC in the
implementation of its regulatory powers. When it issued the
notice and letter, the COMELEC was allegedly
enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional
violation: the infringement on speech and the "chilling effect"
caused by respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of
discretion amounting to lack or excess of jurisdiction in
issuing the notice51 dated February 22,2013 and letter52 dated
February 27, 2013 ordering the removal of the tarpaulin.53 It
is their position that these infringe on their fundamental right
to freedom of expression and violate the principle of
separation of church and state and, thus, are
unconstitutional.54
The jurisdiction of this court over the subject matter is
determined from the allegations in the petition. Subject matter
jurisdiction is defined as the authority "to hear and determine
cases of the general class to which the proceedings in question
belong and is conferred by the sovereign authority which
organizes the court and defines its powers."55Definitely, the
subject matter in this case is different from the cases cited by
respondents.
Nothing less than the electorate’s political speech will be
affected by the restrictions imposed by COMELEC. Political
speech is motivated by the desire to be heard and understood,
to move people to action. It is concerned with the sovereign
right to change the contours of power whether through the
election of representatives in a republican government or the
revision of the basic text of the Constitution. The zeal with
which we protect this kind of speech does not depend on our
evaluation of the cogency of the message. Neither do we
assess whether we should protect speech based on the motives
of COMELEC. We evaluate restrictions on freedom of
expression from their effects. We protect both speech and
medium because the quality of this freedom in practice will
define the quality of deliberation in our democratic society.
COMELEC’s notice and letter affect preferred speech.
Respondents’ acts are capable of repetition. Under the
conditions in which it was issued and in view of the novelty of
this case,it could result in a "chilling effect" that would affect
other citizens who want their voices heard on issues during the
elections. Other citizens who wish to express their views
regarding the election and other related issues may choose not
to, for fear of reprisal or sanction by the COMELEC. Direct
resort to this court is allowed to avoid such proscribed
conditions. Rule 65 is also the procedural platform for raising
grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction.
For petitioners, it referred to this court’s expanded exercise of
certiorari as provided by the Constitution as follows:
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 ornot
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional
mandate to decide all questions affectingelections. Article IX-
C, Section 2(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
....
(3) Decide, except those involving the right to vote, all
questions affecting elections, including determination of the
number and location of polling places, appointment of election
officials and inspectors, and registration of voters.
Respondents’ reliance on this provision is misplaced.
We are not confronted here with the question of whether the
COMELEC, in its exercise of jurisdiction, gravely abused it.
We are confronted with the question as to whether the
COMELEC had any jurisdiction at all with its acts threatening
imminent criminal action effectively abridging meaningful
political speech.
It is clear that the subject matter of the controversy is the
effect of COMELEC’s notice and letter on free speech. This
does not fall under Article IX-C, Section 2(3) of the
Constitution. The use of the word "affecting" in this provision
cannot be interpreted to mean that COMELEC has the
exclusive power to decide any and allquestions that arise
during elections. COMELEC’s constitutional competencies
during elections should not operate to divest this court of its
own jurisdiction.
The more relevant provision for jurisdiction in this case is
Article VIII, Section 5(1) of the Constitution.This provision
provides for this court’s original jurisdiction over petitions for
certiorari and prohibition. This should be read alongside the
expanded jurisdiction of the court in Article VIII, Section 1 of
the Constitution.
Certainly, a breach of the fundamental right of expression by
COMELEC is grave abuse of discretion. Thus, the
constitutionality of the notice and letter coming from
COMELEC is within this court’s power to review.
During elections, we have the power and the duty to correct
any grave abuse of discretion or any act tainted with
unconstitutionality on the part of any government branch or
instrumentality. This includes actions by the COMELEC.
Furthermore, it is this court’s constitutional mandate to protect
the people against government’s infringement of their
fundamental rights. This constitutional mandate out weighs
the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take
jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the
doctrine of hierarchy of courts in directly filing their petition
before this court.
Respondents contend that petitioners’ failure to file the proper
suit with a lower court of concurrent jurisdiction is sufficient
ground for the dismissal of their petition.57 They add that
observation of the hierarchy of courts is compulsory, citing
Heirs of Bertuldo Hinog v. Melicor.58 While respondents
claim that while there are exceptions to the general rule on
hierarchy of courts, none of these are present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this
court’s discretionary power to take cognizance of a petition
filed directly to it if warranted by "compelling reasons, or [by]
the nature and importance of the issues raised. . .
."61 Petitioners submit that there are "exceptional and
compelling reasons to justify a direct resort [with] this
Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of
the application of the hierarchy of courts:
The Court must enjoin the observance of the policy on the
hierarchy of courts, and now affirms that the policy is not to
be ignored without serious consequences. The strictness of the
policy is designed to shield the Court from having to deal with
causes that are also well within the competence of the lower
courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has
assigned to it. The Court may act on petitions for the
extraordinary writs of certiorari, prohibition and mandamus
only when absolutely necessary or when serious and important
reasons exist to justify an exception to the policy.64
In Bañez, we also elaborated on the reasons why lower courts
are allowed to issue writs of certiorari, prohibition, and
mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain
if it is to satisfactorily perform the functions assigned to it by
the fundamental charter and immemorial tradition. It cannot
and should not be burdened with the task of dealing with
causes in the first instance. Its original jurisdiction to issue the
so-called extraordinary writs should be exercised only where
absolutely necessary or where serious and important reasons
exist therefore. Hence, that jurisdiction should generally be
exercised relative to actions or proceedings before the Court of
Appeals, or before constitutional or other tribunals, bodies or
agencies whose acts for some reason or another are not
controllable by the Court of Appeals. Where the issuance of an
extraordinary writ is also within the competence of the Court
of Appeals or a Regional Trial Court, it is in either of these
courts that the specific action for the writ’s procurement must
be presented. This is and should continue to be the policy in
this regard, a policy that courts and lawyers must strictly
observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts
was created by this court to ensure that every level of the
judiciary performs its designated roles in an effective and
efficient manner. Trial courts do not only determine the facts
from the evaluation of the evidence presented before them.
They are likewise competent to determine issues of law which
may include the validity of an ordinance, statute, or even an
executive issuance in relation to the Constitution.67 To
effectively perform these functions, they are territorially
organized into regions and then into branches. Their writs
generally reach within those territorial boundaries.
Necessarily, they mostly perform the all-important task of
inferring the facts from the evidence as these are physically
presented before them. In many instances, the facts occur
within their territorial jurisdiction, which properly present the
‘actual case’ that makes ripe a determination of the
constitutionality of such action. The consequences, of course,
would be national in scope. There are, however, some cases
where resort to courts at their level would not be practical
considering their decisions could still be appealed before the
higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate
court that reviews the determination of facts and law made by
the trial courts. It is collegiate in nature. This nature ensures
more standpoints in the review of the actions of the trial court.
But the Court of Appeals also has original jurisdiction over
most special civil actions. Unlike the trial courts, its writs can
have a nationwide scope. It is competent to determine facts
and, ideally, should act on constitutional issues thatmay not
necessarily be novel unless there are factual questions to
determine.
This court, on the other hand, leads the judiciary by breaking
new ground or further reiterating — in the light of new
circumstances or in the light of some confusions of bench or
bar — existing precedents. Rather than a court of first instance
or as a repetition of the actions of the Court of Appeals, this
court promulgates these doctrinal devices in order that it truly
performs that role.
In other words, the Supreme Court’s role to interpret the
Constitution and act in order to protect constitutional rights
when these become exigent should not be emasculated by the
doctrine in respect of the hierarchy of courts. That has never
been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad
rule.68 This court has "full discretionary power to take
cognizance and assume jurisdiction [over] special civil actions
for certiorari . . .filed directly with it for exceptionally
compelling reasons69 or if warranted by the nature of the
issues clearly and specifically raised in the petition."70 As
correctly pointed out by petitioners,71 we have provided
exceptions to this doctrine:
First, a direct resort to this court is allowed when there are
genuine issues of constitutionality that must be addressed at
the most immediate time. A direct resort to this court includes
availing of the remedies of certiorari and prohibition toassail
the constitutionality of actions of both legislative and
executive branches of the government.72
In this case, the assailed issuances of respondents prejudice
not only petitioners’ right to freedom of expression in the
present case, but also of others in future similar cases. The
case before this court involves an active effort on the part of
the electorate to reform the political landscape. This has
become a rare occasion when private citizens actively engage
the public in political discourse. To quote an eminent political
theorist:
[T]he theory of freedom of expression involves more than a
technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of society, a
faith and a whole way of life. The theory grew out of an age
that was awakened and invigorated by the idea of new society
in which man's mind was free, his fate determined by his own
powers of reason, and his prospects of creating a rational and
enlightened civilization virtually unlimited. It is put forward as
a prescription for attaining a creative, progressive, exciting
and intellectually robust community. It contemplates a mode
of life that, through encouraging toleration, skepticism, reason
and initiative, will allow man to realize his full potentialities.It
spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73
In a democracy, the citizen’s right tofreely participate in the
exchange of ideas in furtherance of political decision-making
is recognized. It deserves the highest protection the courts may
provide, as public participation in nation-building isa
fundamental principle in our Constitution. As such, their right
to engage in free expression of ideas must be given immediate
protection by this court.
A second exception is when the issuesinvolved are of
transcendental importance.74 In these cases, the imminence
and clarity of the threat to fundamental constitutional rights
outweigh the necessity for prudence. The doctrine relating to
constitutional issues of transcendental importance prevents
courts from the paralysis of procedural niceties when clearly
faced with the need for substantial protection.
In the case before this court, there is a clear threat to the
paramount right of freedom of speech and freedom of
expression which warrants invocation of relief from this court.
The principles laid down in this decision will likely influence
the discourse of freedom of speech in the future, especially in
the context of elections. The right to suffrage not only includes
the right to vote for one’s chosen candidate, but also the right
to vocalize that choice to the public in general, in the hope of
influencing their votes. It may be said that in an election year,
the right to vote necessarily includes the right to free speech
and expression. The protection of these fundamental
constitutional rights, therefore, allows for the immediate resort
to this court.
Third, cases of first impression75 warrant a direct resort to this
court. In cases of first impression, no jurisprudence yet exists
that will guide the lower courts on this matter. In Government
of the United States v. Purganan,76 this court took cognizance
of the case as a matter of first impression that may guide the
lower courts:
In the interest of justice and to settle once and for all the
important issue of bail in extradition proceedings, we deem it
best to take cognizance of the present case. Such proceedings
constitute a matter of first impression over which there is, as
yet, no local jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression
involving as it does the issue of whether the right of suffrage
includes the right of freedom of expression. This is a question
which this court has yet to provide substantial answers to,
through jurisprudence. Thus, direct resort to this court is
allowed.
Fourth, the constitutional issues raisedare better decided by
this court. In Drilon v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming
modesty, to defer to the higher judgmentof this Court in the
consideration of its validity, which is better determined after a
thorough deliberation by a collegiate body and with the
concurrence of the majority of those who participated in its
discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined
judicial power, that can rule with finality on whether
COMELEC committed grave abuse of discretion or performed
acts contrary to the Constitution through the assailed
issuances.
Fifth, the time element presented in this case cannot be
ignored. This case was filed during the 2013 election period.
Although the elections have already been concluded, future
cases may be filed that necessitate urgency in its resolution.
Exigency in certain situations would qualify as an exception
for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional
organ. COMELEC is a constitutional body. In Albano v.
Arranz,80 cited by petitioners, this court held that "[i]t is easy
to realize the chaos that would ensue if the Court of First
Instance ofeach and every province were [to] arrogate itself
the power to disregard, suspend, or contradict any order of the
Commission on Elections: that constitutional body would be
speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of
COMELEC through pursuing remedies with the lower courts,
any ruling on their part would not have been binding for other
citizens whom respondents may place in the same situation.
Besides, thiscourt affords great respect to the Constitution and
the powers and duties imposed upon COMELEC. Hence, a
ruling by this court would be in the best interest of
respondents, in order that their actions may be guided
accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain,
speedy, and adequate remedy in the ordinary course of law
that could free them from the injurious effects of respondents’
acts in violation of their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this
basic right constitute an exceptionally compelling reason to
justify the direct resort to this court. The lack of other
sufficient remedies in the course of law alone is sufficient
ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by
public welfare and the advancement of public policy, or
demanded by the broader interest of justice, or the orders
complained of were found to be patent nullities, or the appeal
was consideredas clearly an inappropriate remedy."82 In the
past, questions similar to these which this court ruled on
immediately despite the doctrine of hierarchy of courts
included citizens’ right to bear arms,83 government contracts
involving modernization of voters’ registration lists,84 and the
status and existence of a public office.85
This case also poses a question of similar, if not greater
import. Hence, a direct action to this court is permitted.
It is not, however, necessary that all of these exceptions must
occur at the same time to justify a direct resort to this court.
While generally, the hierarchy of courts is respected, the
present case falls under the recognized exceptions and, as
such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its
reasonableness is a political question, hence not within the
ambit of this court’s power of review. They cite Justice
Vitug’s separate opinion in Osmeña v. COMELEC86 to
support their position:
It might be worth mentioning that Section 26, Article II, of the
Constitution also states that the "State shall guarantee equal
access to opportunities for public service, and prohibit
political dynasties as may be defined by law." I see neither
Article IX (C)(4) nor Section 26, Article II, of the Constitution
to be all that adversarial or irreconcilably inconsistent with the
right of free expression. In any event, the latter, being one of
general application, must yield to the specific demands of the
Constitution. The freedom of expression concededly holds, it
is true, a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is not
without limitations.
The case is not about a fight between the "rich" and the "poor"
or between the "powerful" and the "weak" in our society but it
is to me a genuine attempt on the part of Congress and the
Commission on Elections to ensure that all candidates are
given an equal chance to media coverage and thereby be
equally perceived as giving real life to the candidates’ right of
free expression rather than being viewed as an undue
restriction of that freedom. The wisdom in the enactment of
the law, i.e., that which the legislature deems to be best in
giving life to the Constitutional mandate, is not for the Court
to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But
it is not in point in this case.
The present petition does not involve a dispute between the
rich and poor, or the powerful and weak, on their equal
opportunities for media coverage of candidates and their right
to freedom of expression. This case concerns the right of
petitioners, who are non-candidates, to post the tarpaulin in
their private property, asan exercise of their right of free
expression. Despite the invocation of the political question
doctrine by respondents, this court is not proscribed from
deciding on the merits of this case.
In Tañada v. Cuenco,88 this court previously elaborated on the
concept of what constitutes a political question:
What is generally meant, when it is said that a question is
political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity, or
that it has been specifically delegated to some other
department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates
on what the text of the law should be. In political forums,
particularly the legislature, the creation of the textof the law is
based on a general discussion of factual circumstances,
broadly construed in order to allow for general application by
the executive branch. Thus, the creation of the law is not
limited by particular and specific facts that affect the rights of
certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based
on existing facts established on a specific case-to-case basis,
where parties affected by the legal provision seek the courts’
understanding of the law.
The complementary nature of the political and judicial
branches of government is essential in order to ensure that the
rights of the general public are upheld at all times. In order to
preserve this balance, branches of government must afford due
respectand deference for the duties and functions
constitutionally delegated to the other. Courts cannot rush to
invalidate a law or rule. Prudence dictates that we are careful
not to veto political acts unless we can craft doctrine narrowly
tailored to the circumstances of the case.
The case before this court does not call for the exercise of
prudence or modesty. There is no political question. It can be
acted upon by this court through the expanded jurisdiction
granted to this court through Article VIII, Section 1 of the
Constitution.
A political question arises in constitutional issues relating to
the powers or competence of different agencies and
departments of the executive or those of the legislature. The
political question doctrine is used as a defense when the
petition asks this court to nullify certain acts that are
exclusively within the domain of their respective
competencies, as provided by the Constitution or the law. In
such situation, presumptively, this court should act with
deference. It will decline to void an act unless the exercise of
that power was so capricious and arbitrary so as to amount to
grave abuse of discretion.
The concept of a political question, however, never precludes
judicial review when the act of a constitutional organ infringes
upon a fundamental individual or collective right. Even
assuming arguendo that the COMELEC did have the
discretion to choose the manner of regulation of the tarpaulin
in question, it cannot do so by abridging the fundamental right
to expression.
Marcos v. Manglapus90 limited the use of the political
question doctrine:
When political questions are involved, the Constitution limits
the determination to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction
on the part of the official whose action is being questioned. If
grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter
which by its nature or by law is for the latter alone to
decide.91
How this court has chosen to address the political question
doctrine has undergone an evolution since the timethat it had
been first invoked in Marcos v. Manglapus. Increasingly, this
court has taken the historical and social context of the case and
the relevance of pronouncements of carefully and narrowly
tailored constitutional doctrines. This trend was followed in
cases such as Daza v. Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of
Article VI, Section 18 of the 1987 Constitution involving the
removal of petitioners from the Commission on
Appointments. In times past, this would have involved a quint
essentially political question as it related to the dominance of
political parties in Congress. However, in these cases, this
court exercised its power of judicial review noting that the
requirement of interpreting the constitutional provision
involved the legality and not the wisdom of a manner by
which a constitutional duty or power was exercised. This
approach was again reiterated in Defensor Santiago v.
Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court
declared again that the possible existence ofa political
question did not bar an examination of whether the exercise of
discretion was done with grave abuse of discretion. In that
case, this court ruled on the question of whether there was
grave abuse of discretion in the President’s use of his power to
call out the armed forces to prevent and suppress lawless
violence.
In Estrada v. Desierto,96 this court ruled that the legal
question as to whether a former President resigned was not a
political question even if the consequences would be to
ascertain the political legitimacy of a successor President.
Many constitutional cases arise from political crises. The
actors in such crises may use the resolution of constitutional
issues as leverage. But the expanded jurisdiction of this court
now mandates a duty for it to exercise its power of judicial
review expanding on principles that may avert catastrophe or
resolve social conflict.
This court’s understanding of the political question has not
been static or unbending. In Llamas v. Executive Secretary
Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in
which the President's discretionary powers are exercised or
into the wisdom for its exercise, it is also a settled rule that
when the issue involved concerns the validity of such
discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to
exercise our power of judicial review. And such review does
not constitute a modification or correction of the act of the
President, nor does it constitute interference with the functions
of the President.98
The concept of judicial power in relation to the concept of the
political question was discussed most extensively in Francisco
v. HRET.99 In this case, the House of Representatives
arguedthat the question of the validity of the second
impeachment complaint that was filed against former Chief
Justice Hilario Davide was a political question beyond the
ambit of this court. Former Chief Justice Reynato Puno
elaborated on this concept in his concurring and dissenting
opinion:
To be sure, the force to impugn the jurisdiction of this Court
becomes more feeble in light of the new Constitution which
expanded the definition of judicial power as including "the
duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government." As well observed by retired Justice Isagani
Cruz, this expanded definition of judicial power considerably
constricted the scope of political question. He opined that the
language luminously suggests that this duty (and power) is
available even against the executive and legislative
departments including the President and the Congress, in the
exercise of their discretionary powers.100 (Emphasis in the
original, citations omitted)
Francisco also provides the cases which show the evolution of
the political question, as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through
Madame Justice Irene Cortes, held: The present Constitution
limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court,under
previous constitutions, would have normally left to the
political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice
Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this
Court must perform under the Constitution. Moreover, as held
in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by
no means does away with the applicability of the principle in
appropriate cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani
Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we
were to assume that the issue presented before us was political
in nature, we would still not be precluded from resolving it
under the expanded jurisdiction conferred upon us that now
covers, in proper cases, even the political question.x x x
(Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue
involves a truly political and non-justiciable question lies in
the answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the
government properly acted within such limits.101 (Citations
omitted)
As stated in Francisco, a political question will not be
considered justiciable if there are no constitutionally imposed
limits on powers or functions conferred upon political bodies.
Hence, the existence of constitutionally imposed limits
justifies subjecting the official actions of the body to the
scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to
the right to free speech. Any instance that this right may be
abridged demands judicial scrutiny. It does not fall squarely
into any doubt that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of
exhaustion of administrative remedies. Respondents insist that
petitioners should have first brought the matter to the
COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with
the requirement in Rule 65 that "there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of
law."103 They add that the proper venue to assail the validity
of the assailed issuances was in the course of an administrative
hearing to be conducted by COMELEC.104 In the event that
an election offense is filed against petitioners for posting the
tarpaulin, they claim that petitioners should resort to the
remedies prescribed in Rule 34 of the COMELEC Rules of
Procedure.105
The argument on exhaustion of administrative remedies is not
proper in this case.
Despite the alleged non-exhaustion of administrative
remedies, it is clear that the controversy is already ripe for
adjudication. Ripeness is the "prerequisite that something had
by then been accomplished or performed by either branch [or
in this case, organ of government] before a court may come
into the picture."106
Petitioners’ exercise of their rightto speech, given the message
and their medium, had understandable relevance especially
during the elections. COMELEC’s letter threatening the filing
of the election offense against petitioners is already an
actionable infringement of this right. The impending threat of
criminal litigation is enough to curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative
remedies as COMELEC suggested in their pleadings prolongs
the violation of their freedom of speech.
Political speech enjoys preferred protection within our
constitutional order. In Chavez v. Gonzales,107 Justice Carpio
in a separate opinion emphasized: "[i]f everthere is a hierarchy
of protected expressions, political expression would occupy
the highest rank, and among different kinds of political
expression, the subject of fair and honest elections would be at
the top."108 Sovereignty resides in the people.109 Political
speech is a direct exercise of the sovereignty. The principle of
exhaustion of administrative remedies yields in order to
protect this fundamental right.
Even assuming that the principle of exhaustion of
administrative remedies is applicable, the current controversy
is within the exceptions to the principle. In Chua v.
Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies
may be dispensed with and judicial action may be validly
resorted to immediately: (a) when there is a violation of due
process; (b) when the issue involved is purely a legal question;
(c) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (d) when there is
estoppel on the part ofthe administrative agency concerned;
(e) when there is irreparable injury; (f) when the respondent is
a department secretary whose acts as analter ego of the
President bear the implied and assumed approval of the latter;
(g) when to require exhaustion of administrative remedies
would be unreasonable; (h) when it would amount to a
nullification of a claim; (i) when the subject matter is a private
land in land case proceedings; (j) whenthe rule does not
provide a plain, speedy and adequate remedy; or (k) when
there are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with
the present case. First, petitioners allegethat the assailed
issuances violated their right to freedom of expression and the
principle of separation of church and state. This is a purely
legal question. Second, the circumstances of the present case
indicate the urgency of judicial intervention considering the
issue then on the RH Law as well as the upcoming elections.
Thus, to require the exhaustion of administrative remedies in
this case would be unreasonable.
Time and again, we have held that this court "has the power to
relax or suspend the rules or to except a case from their
operation when compelling reasons so warrant, or whenthe
purpose of justice requires it, [and when] [w]hat constitutes
[as] good and sufficient cause that will merit suspension of the
rules is discretionary upon the court".112Certainly, this case
of first impression where COMELEC has threatenedto
prosecute private parties who seek to participate in the
elections by calling attention to issues they want debated by
the publicin the manner they feel would be effective is one of
those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made
by private citizens
Respondents cite the Constitution, laws, and jurisprudence to
support their position that they had the power to regulate the
tarpaulin.113 However, all of these provisions pertain to
candidates and political parties. Petitioners are not candidates.
Neither do theybelong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the
preferred right to freedom of expression exercised by a non-
candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the
Constitution, which provides:
Section 4. The Commission may,during the election period,
supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and
other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates
in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections.114 (Emphasis
supplied)
Sanidad v. COMELEC115 involved the rules promulgated by
COMELEC during the plebiscite for the creation of the
Cordillera Autonomous Region.116 Columnist Pablito V.
Sanidad questioned the provision prohibiting journalists from
covering plebiscite issues on the day before and on plebiscite
day.117 Sanidad argued that the prohibition was a violation of
the "constitutional guarantees of the freedom of expression
and of the press. . . ."118 We held that the "evil sought to be
prevented by this provision is the possibility that a franchise
holder may favor or give any undue advantage to a candidate
in terms of advertising space or radio or television
time."119 This court found that "[m]edia practitioners
exercising their freedom of expression during plebiscite
periods are neither the franchise holders nor the
candidates[,]"120 thus, their right to expression during this
period may not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither
franchise holders nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the
Constitution as follows:122
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
....
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized,
it will be inferred that this provision only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials"
issued by COMELEC. This was followed bythe assailed letter
regarding the "election propaganda material posted on the
church vicinity promoting for or against the candidates and
party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of
campaign materials only mentions "parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may
authorize political parties and party-list groups to erect
common poster areas for their candidates in not more than ten
(10) public places such as plazas, markets, barangay centers
and the like, wherein candidates can post, display or exhibit
election propaganda: Provided, That the size ofthe poster areas
shall not exceed twelve (12) by sixteen (16) feet or its
equivalent. Independent candidates with no political parties
may likewise be authorized to erect common poster areas in
not more than ten (10) public places, the size of which shall
not exceed four (4) by six (6) feet or its equivalent. Candidates
may post any lawful propaganda material in private places
with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially
among the candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the
rules and regulations implementing the Fair Election Act,
provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and
candidates may post any lawful campaign material in:
a. Authorized common poster areasin public places subject to
the requirements and/or limitations set forth in the next
following section; and
b. Private places provided it has the consent of the owner
thereof.
The posting of campaign materials in public places outside of
the designated common poster areas and those enumerated
under Section 7 (g) of these Rules and the like is prohibited.
Persons posting the same shall be liable together with the
candidates and other persons who caused the posting. It will
be presumed that the candidates and parties caused the posting
of campaign materials outside the common poster areas if they
do not remove the same within three (3) days from notice
which shall be issued by the Election Officer of the city or
municipality where the unlawful election propaganda are
posted or displayed.
Members of the PNP and other law enforcement agencies
called upon by the Election Officeror other officials of the
COMELEC shall apprehend the violators caught in the act,
and file the appropriate charges against them. (Emphasis
supplied)
Respondents considered the tarpaulin as a campaign material
in their issuances. The above provisions regulating the posting
of campaign materials only apply to candidates and political
parties, and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election
Propaganda" also states that these are "allowed for all
registered political parties, national, regional, sectoral parties
or organizations participating under the party-list elections and
for all bona fide candidates seeking national and local elective
positions subject to the limitation on authorized expenses of
candidates and political parties. . . ." Section 6 of COMELEC
Resolution No. 9615 provides for a similar wording. These
provisions show that election propaganda refers to matter done
by or on behalf of and in coordination with candidates and
political parties. Some level of coordination with the
candidates and political parties for whom the election
propaganda are released would ensure that these candidates
and political parties maintain within the authorized expenses
limitation.
The tarpaulin was not paid for byany candidate or political
party.125 There was no allegation that petitioners coordinated
with any of the persons named in the tarpaulin regarding its
posting. On the other hand, petitioners posted the tarpaulin as
part of their advocacy against the RH Law. Respondents also
cite National Press Club v. COMELEC126 in arguing that its
regulatory power under the Constitution, to some extent, set a
limit on the right to free speech during election period.127
National Press Club involved the prohibition on the sale and
donation of space and time for political advertisements,
limiting political advertisements to COMELEC-designated
space and time. This case was brought by representatives of
mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and
donation of space and time for political advertisements is
tantamount to censorship, which necessarily infringes on the
freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC
prohibition in National Press Club. However, this case does
not apply as most of the petitioners were electoral candidates,
unlike petitioners in the instant case. Moreover, the subject
matter of National Press Club, Section 11(b) of Republic Act
No. 6646,129 only refers to a particular kind of media such as
newspapers, radio broadcasting, or television.130 Justice
Feliciano emphasized that the provision did not infringe upon
the right of reporters or broadcasters to air their commentaries
and opinions regarding the candidates, their qualifications, and
program for government. Compared to Sanidadwherein the
columnists lost their ability to give their commentary on the
issues involving the plebiscite, National Press Clubdoes not
involve the same infringement.
In the case at bar, petitioners lost their ability to give a
commentary on the candidates for the 2013 national elections
because of the COMELEC notice and letter. It was not
merelya regulation on the campaigns of candidates vying for
public office. Thus, National Press Clubdoes not apply to this
case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise
known as the Omnibus Election Code, defines an"election
campaign" as follows:
....
(b) The term "election campaign" or "partisan political
activity" refers to an act designed to promote the election or
defeat of a particular candidate or candidates to a public office
which shall include:
(1) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or
holding interviews for or against the election of any candidate
for public office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support
for or against a candidate.
The foregoing enumerated acts ifperformed for the purpose of
enhancing the chances of aspirants for nomination for
candidacy to a public office by a political party, aggroupment,
or coalition of parties shall not be considered as election
campaign or partisan election activity. Public expressions or
opinions or discussions of probable issues in a forthcoming
electionor on attributes of or criticisms against probable
candidates proposed to be nominated in a forthcoming
political party convention shall not be construed as part of any
election campaign or partisan political activity contemplated
under this Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited
only to the candidates and political parties themselves. The
focus of the definition is that the act must be "designed to
promote the election or defeat of a particular candidate or
candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public
concern, that is, a statement of either appreciation or criticism
on votes made in the passing of the RH law. Thus, petitioners
invoke their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the
removal of the tarpaulin violate their fundamental right to
freedom of expression.
On the other hand, respondents contend that the tarpaulin is an
election propaganda subject to their regulation pursuant to
their mandate under Article IX-C, Section 4 of the
Constitution. Thus, the assailed notice and letter ordering
itsremoval for being oversized are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III,
Section 4 of the Constitution:
Section 4. No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress
of grievances.132
No law. . .
While it is true that the present petition assails not a law but an
opinion by the COMELEC Law Department, this court has
applied Article III, Section 4 of the Constitution even to
governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by
analogy Section 1119 of the Revised Ordinances of 1927 of
Manila for the public meeting and assembly organized by
petitioner Primicias.134 Section 1119 requires a Mayor’s
permit for the use of streets and public places for purposes
such as athletic games, sports, or celebration of national
holidays.135 What was questioned was not a law but the
Mayor’s refusal to issue a permit for the holding of
petitioner’s public meeting.136 Nevertheless, this court
recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances,
albeit not absolute,137 and the petition for mandamus to
compel respondent Mayor to issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law
but COMELEC En Banc Resolution No. 98-1419 where the
COMELEC resolved to approve the issuance of a restraining
order to stop ABS-CBN from conducting exit surveys.139 The
right to freedom of expression was similarly upheld in this
case and, consequently, the assailed resolution was nullified
and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on
expression. The prohibition against the abridgment of speech
should not mean an absolute prohibition against regulation.
The primary and incidental burden on speech must be weighed
against a compelling state interest clearly allowed in the
Constitution. The test depends on the relevant theory of
speech implicit in the kind of society framed by our
Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of
expression, separate and in addition to the freedom of speech
and of the press provided in the US Constitution. The word
"expression" was added in the 1987 Constitution by
Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr.
Presiding Officer. On Section 9, page 2, line 29, it says: "No
law shall be passed abridging the freedom of speech." I would
like to recommend to the Committee the change of the word
"speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more
expansive, it has a wider scope, and it would refer to means of
expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the
Committee say?
FR. BERNAS: "Expression" is more broad than speech. We
accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any
objection? (Silence) The Chair hears none; the amendment is
approved.
FR. BERNAS: So, that provision will now read: "No law shall
be passed abridging the freedom of speech, expression or of
the press . . . ."141 Speech may be said to be inextricably
linked to freedom itself as "[t]he right to think is the beginning
of freedom, and speech must be protected from the
government because speech is the beginning of thought."142
II.B.2
Communication is an essential outcome of protected
speech.143 Communication exists when "(1) a speaker,
seeking to signal others, uses conventional actions because he
orshe reasonably believes that such actions will be taken by
the audience in the manner intended; and (2) the audience so
takes the actions."144 "[I]n communicative action[,] the hearer
may respond to the claims by . . . either accepting the speech
act’s claims or opposing them with criticism or requests for
justification."145
Speech is not limited to vocal communication. "[C]onduct is
treated as a form of speech sometimes referred to as ‘symbolic
speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’
elements are combined in the same course of conduct,’ the
‘communicative element’ of the conduct may be ‘sufficient to
bring into play the [right to freedom of expression].’"147
The right to freedom of expression, thus, applies to the entire
continuum of speech from utterances made to conduct
enacted, and even to inaction itself as a symbolic manner of
communication.
In Ebralinag v. The Division Superintendent of Schools of
Cebu,148 students who were members of the religious sect
Jehovah’s Witnesses were to be expelled from school for
refusing to salute the flag, sing the national anthem, and recite
the patriotic pledge.149 In his concurring opinion, Justice
Cruz discussed how the salute is a symbolic manner of
communication and a valid form of expression.150 He adds
that freedom of speech includes even the right to be silent:
Freedom of speech includes the right to be silent. Aptly has it
been said that the Bill of Rights that guarantees to the
individual the liberty to utter what is in his mind also
guarantees to him the liberty not to utter what is not in his
mind. The salute is a symbolic manner of communication that
conveys its messageas clearly as the written or spoken word.
As a valid form of expression, it cannot be compelled any
more than it can be prohibited in the face of valid religious
objections like those raised in this petition. To impose it on the
petitioners is to deny them the right not to speak when their
religion bids them to be silent. This coercion of conscience has
no place in the free society.
The democratic system provides for the accommodation of
diverse ideas, including the unconventional and even the
bizarre or eccentric. The will of the majority prevails, but it
cannot regiment thought by prescribing the recitation by rote
of its opinions or proscribing the assertion of unorthodox or
unpopular views as inthis case. The conscientious objections
of the petitioners, no less than the impatience of those who
disagree with them, are protected by the Constitution. The
State cannot make the individual speak when the soul within
rebels.151
Even before freedom "of expression" was included in Article
III, Section 4 of the present Constitution,this court has applied
its precedent version to expressions other than verbal
utterances.
In the 1985 case of Gonzalez v. Chairman
Katigbak,152 petitioners objected to the classification of the
motion picture "Kapit sa Patalim" as "For Adults Only." They
contend that the classification "is without legal and factual
basis and is exercised as impermissible restraint of artistic
expression."153 This court recognized that "[m]otion pictures
are important both as a medium for the communication of
ideas and the expression of the artistic impulse."154 It adds
that "every writer,actor, or producer, no matter what medium
of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s] perception of
what constitutes obscenity appears to be unduly
restrictive."156 However, the petition was dismissed solely on
the ground that there were not enough votes for a ruling of
grave abuse of discretion in the classification made by the
Board.157
II.B.3
Size does matter
The form of expression is just as important as the information
conveyed that it forms part of the expression. The present case
is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger
tarpaulin allows larger fonts which make it easier to view its
messages from greater distances. Furthermore, a larger
tarpaulin makes it easier for passengers inside moving
vehicles to read its content. Compared with the pedestrians,
the passengers inside moving vehicles have lesser time to view
the content of a tarpaulin. The larger the fonts and images, the
greater the probability that it will catch their attention and,
thus, the greater the possibility that they will understand its
message.
Second, the size of the tarpaulin may underscore the
importance of the message to the reader. From an ordinary
person’s perspective, those who post their messages in larger
fonts care more about their message than those who carry their
messages in smaller media. The perceived importance given
by the speakers, in this case petitioners, to their cause is also
part of the message. The effectivity of communication
sometimes relies on the emphasis put by the speakers and
onthe credibility of the speakers themselves. Certainly, larger
segments of the public may tend to be more convinced of the
point made by authoritative figures when they make the effort
to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces,
therefore, may translate to more opportunities to amplify,
explain, and argue points which the speakers might want to
communicate. Rather than simply placing the names and
images of political candidates and an expression of support,
larger spaces can allow for brief but memorable presentations
of the candidates’ platforms for governance. Larger spaces
allow for more precise inceptions of ideas, catalyze reactions
to advocacies, and contribute more to a more educated and
reasoned electorate. A more educated electorate will increase
the possibilities of both good governance and accountability in
our government.
These points become more salient when it is the electorate, not
the candidates or the political parties, that speaks. Too often,
the terms of public discussion during elections are framed and
kept hostage by brief and catchy but meaningless sound bites
extolling the character of the candidate. Worse, elections
sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech,
government should in fact encourage it. Between the
candidates and the electorate, the latter have the better
incentive to demand discussion of the more important issues.
Between the candidates and the electorate, the former have
better incentives to avoid difficult political standpoints and
instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and
place.158 They are fundamentally part of expression protected
under Article III, Section 4 of the Constitution.
II.B.4
There are several theories and schools of thought that
strengthen the need to protect the basic right to freedom of
expression.
First, this relates to the right ofthe people to participate in
public affairs, including the right to criticize government
actions.
Proponents of the political theory on "deliberative democracy"
submit that "substantial, open, [and] ethical dialogue isa
critical, and indeed defining, feature of a good
polity."159 This theory may be considered broad, but it
definitely "includes [a] collective decision making with the
participation of all who will beaffected by the decision."160 It
anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To
ensure order in running the state’s affairs, sovereign powers
were delegated and individuals would be elected or nominated
in key government positions to represent the people. On this
note, the theory on deliberative democracy may evolve to the
right of the people to make government accountable.
Necessarily, this includes the right of the people to criticize
acts made pursuant to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out
grievances and political discontent, should thus be protected
and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to
discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces
stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and
proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of
society and the maintenance of good government demand a
full discussion of public affairs."163 This court has, thus,
adopted the principle that "debate on public issues should be
uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public
officials."164
Second, free speech should be encouraged under the concept
of a market place of ideas. This theory was articulated by
Justice Holmes in that "the ultimate good desired is better
reached by [the] free trade in ideas:"165
When men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe
the very foundations of their own conduct that the ultimate
good desired is better reached by free trade in ideas - that the
best test of truth is the power of the thought to get itself
accepted in the competition of the market, and that truth is the
only ground upon which their wishes safely can be carried
out.166
The way it works, the exposure to the ideas of others allows
one to "consider, test, and develop their own
conclusions."167 A free, open, and dynamic market place of
ideas is constantly shaping new ones. This promotes both
stability and change where recurring points may crystallize
and weak ones may develop. Of course, free speech is more
than the right to approve existing political beliefs and
economic arrangements as it includes, "[t]o paraphrase Justice
Holmes, [the] freedom for the thought that we hate, no less
than for the thought that agrees with us."168 In fact, free
speech may "best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as
they are, or even stirs people to anger."169 It is in this context
that we should guard against any curtailment of the people’s
right to participate in the free trade of ideas.
Third, free speech involves self-expression that enhances
human dignity. This right is "a means of assuring individual
self-fulfillment,"170 among others. In Philippine Blooming
Mills Employees Organization v. Philippine Blooming Mills
Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are
not only civil rights but also political rights essential to man's
enjoyment of his life, to his happiness and to his full and
complete fulfillment.Thru these freedoms the citizens can
participate not merely in the periodic establishment of the
government through their suffrage but also in the
administration of public affairs as well as in the discipline of
abusive public officers. The citizen is accorded these rights so
that he can appeal to the appropriate governmental officers or
agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers
and employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one,
"[v]oluntary associations perform [an] important democratic
role [in providing] forums for the development of civil skills,
for deliberation, and for the formation of identity and
community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer
between individuals and the state - a free space for the
development of individual personality, distinct group identity,
and dissident ideas - and a potential source of opposition to the
state."174 Free speech must be protected as the vehicle to find
those who have similar and shared values and ideals, to join
together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to
"protect individuals and minorities against majoritarian abuses
perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison
were concerned about two potentially vulnerable groups: "the
citizenry at large - majorities - who might be tyrannized or
plundered by despotic federal officials"176 and the minorities
who may be oppressed by "dominant factions of the electorate
[that] capture [the] government for their own selfish
ends[.]"177 According to Madison, "[i]t is of great importance
in a republic not only to guard the society against the
oppression of its rulers, but to guard one part of the society
against the injustice of the other part."178 We should strive to
ensure that free speech is protected especially in light of any
potential oppression against those who find themselves in the
fringes on public issues.
Lastly, free speech must be protected under the safety valve
theory.179 This provides that "nonviolent manifestations of
dissent reduce the likelihood of violence[.]"180 "[A] dam
about to burst . . . resulting in the ‘banking up of a menacing
flood of sullen anger behind the walls of restriction’"181 has
been used to describe the effect of repressing nonviolent
outlets.182 In order to avoid this situation and prevent people
from resorting to violence, there is a need for peaceful
methods in making passionate dissent. This includes "free
expression and political participation"183 in that they can
"vote for candidates who share their views, petition their
legislatures to [make or] change laws, . . . distribute literature
alerting other citizens of their concerns[,]"184 and conduct
peaceful rallies and other similar acts.185 Free speech must,
thus, be protected as a peaceful means of achieving one’s goal,
considering the possibility that repression of nonviolent
dissent may spill over to violent means just to drive a point.
II.B.5
Every citizen’s expression with political consequences enjoys
a high degree of protection. Respondents argue that the
tarpaulinis election propaganda, being petitioners’ way of
endorsing candidates who voted against the RH Law and
rejecting those who voted for it.186 As such, it is subject to
regulation by COMELEC under its constitutional
mandate.187 Election propaganda is defined under Section
1(4) of COMELEC Resolution No. 9615 as follows:
SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election propaganda"
refers to any matter broadcasted, published, printed, displayed
or exhibited, in any medium, which contain the name, image,
logo, brand, insignia, color motif, initials, and other symbol or
graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of
the public or a segment thereof to promote or oppose, directly
or indirectly, the election of the said candidate or candidates to
a public office. In broadcast media, political advertisements
may take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used
by commercial advertisers. Political advertising includes
matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to,
social networks, blogging sites, and micro-blogging sites, in
return for consideration, or otherwise capable of pecuniary
estimation.
On the other hand, petitioners invoke their "constitutional
right to communicate their opinions, views and beliefs about
issues and candidates."188 They argue that the tarpaulin was
their statement of approval and appreciation of the named
public officials’ act of voting against the RH Law, and their
criticism toward those who voted in its favor.189It was "part
of their advocacy campaign against the RH Law,"190 which
was not paid for by any candidate or political party.191 Thus,
"the questioned orders which . . . effectively restrain[ed] and
curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."192
This court has held free speech and other intellectual freedoms
as "highly ranked in our scheme of constitutional
values."193 These rights enjoy precedence and primacy.194 In
Philippine Blooming Mills, this court discussed the preferred
position occupied by freedom of expression:
Property and property rights can belost thru prescription; but
human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights is
a useless attempt to limit the power of government and ceases
to be an efficacious shield against the tyranny of officials, of
majorities, ofthe influential and powerful, and of oligarchs -
political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression
and of assembly occupy a preferred position as they are
essential to the preservation and vitality of our civil and
political institutions; and such priority "gives these liberties
the sanctity and the sanction not permitting dubious
intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when
what may be curtailed is the dissemination of information to
make more meaningful the equally vital right of
suffrage."196 A similar idea appeared in our jurisprudence as
early as 1969, which was Justice Barredo’s concurring and
dissenting opinion in Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the
fundamental point others miss, that genuine democracy thrives
only where the power and right of the people toelect the men
to whom they would entrust the privilege to run the affairs of
the state exist. In the language of the declaration of principles
of our Constitution, "The Philippines is a republican state.
Sovereignty resides in the people and all government authority
emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because
and solely because the people in it can be governed only by
officials whom they themselves have placed in office by their
votes. And in it is on this cornerstone that I hold it tobe self-
evident that when the freedoms of speech, press and peaceful
assembly and redress of grievances are being exercised in
relation to suffrage or asa means to enjoy the inalienable right
of the qualified citizen to vote, they are absolute and timeless.
If our democracy and republicanism are to be worthwhile, the
conduct of public affairs by our officials must be allowed to
suffer incessant and unabating scrutiny, favorable or
unfavorable, everyday and at all times. Every holder of power
in our government must be ready to undergo exposure any
moment of the day or night, from January to December every
year, as it is only in this way that he can rightfully gain the
confidence of the people. I have no patience for those who
would regard public dissection of the establishment as an
attribute to be indulged by the people only at certain periods of
time. I consider the freedoms of speech, press and peaceful
assembly and redress of grievances, when exercised in the
name of suffrage, as the very means by which the right itself
to vote can only be properly enjoyed.It stands to reason
therefore, that suffrage itself would be next to useless if these
liberties cannot be untrammelled [sic] whether as to degree or
time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales,
this court discussed that some types of speech may be subject
to regulation:
Some types of speech may be subjected to some regulation by
the State under its pervasive police power, in order that it may
not be injurious to the equal right of others or those of the
community or society. The difference in treatment is expected
because the relevant interests of one type of speech, e.g.,
political speech, may vary from those of another, e.g., obscene
speech. Distinctionshave therefore been made in the treatment,
analysis, and evaluation ofthe permissible scope of restrictions
on various categories of speech. We have ruled, for example,
that in our jurisdiction slander or libel, lewd and obscene
speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations
omitted)
We distinguish between politicaland commercial speech.
Political speech refers to speech "both intended and received
as a contribution to public deliberation about some
issue,"200 "foster[ing] informed and civicminded
deliberation."201 On the other hand, commercial speech has
been defined as speech that does "no more than propose a
commercial transaction."202 The expression resulting from
the content of the tarpaulin is, however, definitely political
speech. In Justice Brion’s dissenting opinion, he discussed that
"[t]he content of the tarpaulin, as well as the timing of its
posting, makes it subject of the regulations in RA 9006 and
Comelec Resolution No. 9615."203 He adds that "[w]hile
indeed the RH issue, by itself,is not an electoralmatter, the
slant that the petitioners gave the issue converted the non-
election issue into a live election one hence, Team Buhay and
Team Patay and the plea to support one and oppose the
other."204
While the tarpaulin may influence the success or failure of the
named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin was
not paid for or posted "in return for consideration" by any
candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC
Resolution No. 9615, or the rules and regulations
implementing Republic Act No. 9006 as an aid to interpret the
law insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election propaganda"
refers to any matter broadcasted, published, printed, displayed
or exhibited, in any medium, which contain the name, image,
logo, brand, insignia, color motif, initials, and other symbol or
graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of
the public or a segment thereof to promote or oppose, directly
or indirectly, the election of the said candidate or candidates to
a public office. In broadcast media, political advertisements
may take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used
by commercial advertisers. Political advertising includes
matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to,
social networks, blogging sites, and micro-blogging sites, in
return for consideration, or otherwise capable of pecuniary
estimation. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions
are not included, while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC
Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity"
refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public office, and shall
include any of the following:
....
Personal opinions, views, and preferences for candidates,
contained in blogs shall not be considered acts of election
campaigning or partisan politicalactivity unless expressed by
government officials in the Executive Department, the
Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in cyberspace,
and its effects and parameters should be deemed narrowly
tailored only in relation to the facts and issues in this case. It
also appears that such wording in COMELEC Resolution No.
9615 does not similarly appear in Republic Act No. 9006, the
law it implements.
We should interpret in this manner because of the value of
political speech.
As early as 1918, in United States v. Bustos,205 this court
recognized the need for full discussion of public affairs. We
acknowledged that free speech includes the right to criticize
the conduct of public men:
The interest of society and the maintenance of good
government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men is
a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of official dom. Men in public life
may suffer under a hostile and an unjust accusation; the
wound can be assuaged with the balm of a clear conscience. A
public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence
and dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the
government for redress of grievances, allowing for criticism,
save for some exceptions.207 In the 1951 case of Espuelas v.
People,208 this court noted every citizen’s privilege to
criticize his or her government, provided it is "specific and
therefore constructive, reasoned or tempered, and not a
contemptuous condemnation of the entire government set-
up."209
The 1927 case of People v. Titular210 involved an alleged
violation of the Election Law provision "penaliz[ing] the
anonymous criticism of a candidate by means of posters or
circulars."211 This court explained that it is the poster’s
anonymous character that is being penalized.212 The ponente
adds that he would "dislike very muchto see this decision
made the vehicle for the suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of
allowing individuals to vent their views. According to this
court, "[i]ts value may lie in the fact that there may be
something worth hearing from the dissenter [and] [t]hat is to
ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive
criticisms against their government contributes to every
society’s goal for development. It puts forward matters that
may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also
makes the government accountable for acts that violate
constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of
Republic Act No. 6646, which prohibits mass media from
selling print space and air time for campaign except to the
COMELEC, to be a democracy-enhancing measure.216This
court mentioned how "discussion of public issues and debate
on the qualifications of candidates in an election are essential
to the proper functioning of the government established by our
Constitution."217
As pointed out by petitioners, "speech serves one of its
greatest public purposes in the context of elections when the
free exercise thereof informs the people what the issues are,
and who are supporting what issues."218 At the heart of
democracy is every advocate’s right to make known what the
people need to know,219 while the meaningful exercise of
one’s right of suffrage includes the right of every voter to
know what they need to know in order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the
importance of debate on public issues, and the freedom of
expression especially in relation to information that ensures
the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues
should be uninhibited, robust, and wide open and that it may
well include vehement, caustic and sometimes unpleasantly
sharp attacks on government and public officials. Too many
restrictions will deny to people the robust, uninhibited, and
wide open debate, the generating of interest essential if our
elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression
calls all the more for the utmost respect when what may be
curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage.221(Emphasis
supplied, citations omitted)
Speech with political consequences isat the core of the
freedom of expression and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the
god of rights to which all other rights and even government
protection of state interest must bow."222
The right to freedom of expression isindeed not absolute. Even
some forms of protected speech are still subjectto some
restrictions. The degree of restriction may depend on whether
the regulation is content-based or content-neutral.223 Content-
based regulations can either be based on the viewpoint of the
speaker or the subject of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the
tarpaulin is a content-neutral regulation. The order was made
simply because petitioners failed to comply with the
maximum size limitation for lawful election propaganda.224
On the other hand, petitioners argue that the present size
regulation is content-based as it applies only to political
speech and not to other forms of speech such as commercial
speech.225 "[A]ssuming arguendo that the size restriction
sought to be applied . . . is a mere time, place, and manner
regulation, it’s still unconstitutional for lack of a clear and
reasonable nexus with a constitutionally sanctioned
objective."226
The regulation may reasonably be considered as either
content-neutral or content-based.227 Regardless, the
disposition of this case will be the same. Generally, compared
with other forms of speech, the proposed speech is content-
based.
As pointed out by petitioners, the interpretation of COMELEC
contained in the questioned order applies only to posters and
tarpaulins that may affect the elections because they deliver
opinions that shape both their choices. It does not cover, for
instance, commercial speech.
Worse, COMELEC does not point to a definite view of what
kind of expression of non-candidates will be adjudged as
"election paraphernalia." There are no existing bright lines to
categorize speech as election-related and those that are not.
This is especially true when citizens will want to use their
resources to be able to raise public issues that should be
tackled by the candidates as what has happened in this case.
COMELEC’s discretion to limit speech in this case is
fundamentally unbridled.
Size limitations during elections hit ata core part of
expression. The content of the tarpaulin is not easily divorced
from the size of its medium.
Content-based regulation bears a heavy presumption of
invalidity, and this court has used the clear and present danger
rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy
presumption of invalidity and is measured against the clear
and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the
restrictions imposedare neither overbroad nor
vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented
must be substantive, ‘extremely serious and the degree of
imminence extremely high.’"230 "Only when the challenged
act has overcome the clear and present danger rule will it pass
constitutional muster, with the government having the burden
of overcoming the presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed
to justify the regulation. There is no compelling and
substantial state interest endangered by the posting of the
tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their
private property. The size of the tarpaulin does not affect
anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions
"based on the subject matter of the utterance or speech."232 In
contrast, content-neutral regulation includes controls merely
on the incidents of the speech such as time, place, or manner
of the speech.233
This court has attempted to define "content-neutral" restraints
starting with the 1948 case of Primicias v. Fugoso.234The
ordinance in this case was construed to grant the Mayor
discretion only to determine the public places that may be
used for the procession ormeeting, but not the power to refuse
the issuance of a permit for such procession or
meeting.235 This court explained that free speech and
peaceful assembly are "not absolute for it may be so regulated
that it shall not beinjurious to the equal enjoyment of others
having equal rights, nor injurious to the rights of the
community or society."236
The earlier case of Calalang v. Williams237 involved the
National Traffic Commission resolution that prohibited the
passing of animal-drawn vehicles along certain roads at
specific hours.238 This court similarly discussed police power
in that the assailed rules carry outthe legislative policy that
"aims to promote safe transit upon and avoid obstructions on
national roads, in the interest and convenience of the
public."239
As early as 1907, United States v. Apurado240 recognized that
"more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high
pitch of excitement. . . ."241 It is with this backdrop that the
state is justified in imposing restrictions on incidental matters
as time, place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court
summarized the steps that permit applicants must follow
which include informing the licensing authority ahead of time
as regards the date, public place, and time of the
assembly.242 This would afford the public official time to
inform applicants if there would be valid objections, provided
that the clear and present danger test is the standard used for
his decision and the applicants are given the opportunity to be
heard.243 This ruling was practically codified in Batas
Pambansa No. 880, otherwise known as the Public Assembly
Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No.
880 as a valid content-neutral regulation. In the 2006 case of
Bayan v. Ermita,244 this court discussed how Batas Pambansa
No. 880 does not prohibit assemblies but simply regulates
their time, place, and manner.245 In 2010, this court found in
Integrated Bar of the Philippines v. Atienza246 that
respondent Mayor Atienza committed grave abuse of
discretion when he modified the rally permit by changing the
venue from Mendiola Bridge to Plaza Miranda without first
affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-
based. The tarpaulin content is not easily divorced from the
size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the
provisions imposing a size limit for tarpaulins are content-
neutral regulations as these "restrict the mannerby which
speech is relayed but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the
questioned acts of COMELEC will not pass the three
requirements for evaluating such restraints on freedom of
speech.249 "When the speech restraints take the form of a
content-neutral regulation, only a substantial governmental
interest is required for its validity,"250 and it is subject only to
the intermediate approach.251
This intermediate approach is based on the test that we have
prescribed in several cases.252 A content-neutral government
regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government;
[2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incident
restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers
of the COMELEC to regulate the tarpaulin. As discussed
earlier, this is protected speech by petitioners who are non-
candidates. On the second requirement, not only must the
governmental interest be important or substantial, it must also
be compelling as to justify the restrictions made.
Compelling governmental interest would include
constitutionally declared principles. We have held, for
example, that "the welfare of children and the State’s mandate
to protect and care for them, as parens patriae,254 constitute a
substantial and compelling government interest in regulating .
. . utterances in TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal
opportunity for public information campaigns among
candidates in connection with the holding of a free, orderly,
honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize
limits to posters are necessary to ensure equality of public
information campaigns among candidates, as allowing posters
with different sizes gives candidates and their supporters the
incentive to post larger posters[,] [and] [t]his places candidates
with more money and/or with deep-pocket supporters at an
undue advantage against candidates with more humble
financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not
as important as the right of [a private citizen] to freely express
his choice and exercise his right of free speech."258 In any
case, faced with both rights to freedom of speech and equality,
a prudent course would be to "try to resolve the tension in a
way that protects the right of participation."259
Second, the pertinent election lawsrelated to private property
only require that the private property owner’s consent be
obtained when posting election propaganda in the
property.260 This is consistent with the fundamental right
against deprivation of property without due process of
law.261 The present facts do not involve such posting of
election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their
authority to recommend effective measures to minimize
election spending. Specifically, Article IX-C, Section 2(7)
provides:
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
....
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied)
This does not qualify as a compelling and substantial
government interest to justify regulation of the preferred right
to freedom of expression.
The assailed issuances for the removal of the tarpaulin are
based on the two feet (2’) by three feet (3’) size limitation
under Section 6(c) of COMELEC Resolution No. 9615. This
resolution implements the Fair Election Act that provides for
the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to
the paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation
are of marginal significance."264 In fact, speech with political
consequences, as in this case, should be encouraged and not
curtailed. As petitioners pointed out, the size limitation will
not serve the objective of minimizing election spending
considering there is no limit on the number of tarpaulins that
may be posted.265
The third requisite is likewise lacking. We look not only at the
legislative intent or motive in imposing the restriction, but
more so at the effects of such restriction, if implemented. The
restriction must not be narrowly tailored to achieve the
purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the
suppression of speech. Limiting the maximum sizeof the
tarpaulin would render ineffective petitioners’ message and
violate their right to exercise freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin
has the effect of dissuading expressions with political
consequences. These should be encouraged, more so when
exercised to make more meaningful the equally important
right to suffrage.
The restriction in the present case does not pass even the lower
test of intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent
to further speech by the electorate. Given the stature of
petitioners and their message, there are indicators that this will
cause a "chilling effect" on robust discussion during elections.
The form of expression is just as important as the message
itself. In the words of Marshall McLuhan, "the medium is the
message."266 McLuhan’s colleague and mentor Harold Innis
has earlier asserted that "the materials on which words were
written down have often counted for more than the words
themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help
of private individuals for the endorsement of their electoral
campaigns.
On the one extreme, this can take illicit forms such as when
endorsement materials in the form of tarpaulins, posters, or
media advertisements are made ostensibly by "friends" but in
reality are really paid for by the candidate or political party.
This skirts the constitutional value that provides for equal
opportunities for all candidates.
However, as agreed by the parties during the oral arguments in
this case, this is not the situation that confronts us. In such
cases, it will simply be a matter for investigation and proof of
fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without
any relationship to any political candidate should not be held
hostage by the possibility of abuse by those seeking to be
elected. It is true that there can be underhanded, covert, or
illicit dealings so as to hide the candidate’s real levels of
expenditures. However, labelling all expressions of private
parties that tend to have an effect on the debate in the elections
as election paraphernalia would be too broad a remedy that
can stifle genuine speech like in this case. Instead, to address
this evil, better and more effective enforcement will be the
least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the
message of a candidate, others will spend their own resources
in order to lend support for the campaigns. This may be
without agreement between the speaker and the candidate or
his or her political party. In lieu of donating funds to the
campaign, they will instead use their resources directly in a
way that the candidate or political party would have doneso.
This may effectively skirt the constitutional and statutory
limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be
what candidates and political parties will carry in their election
posters or media ads. The message of petitioner, taken as a
whole, is an advocacy of a social issue that it deeply believes.
Through rhetorical devices, it communicates the desire of
Diocese that the positions of those who run for a political
position on this social issue be determinative of how the
public will vote. It primarily advocates a stand on a social
issue; only secondarily — even almost incidentally — will
cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire
is a "literary form that employs such devices as sarcasm, irony
and ridicule to deride prevailing vices or follies,"268 and this
may target any individual or group in society, private and
government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social
criticism"269 "because it tears down facades, deflates stuffed
shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly
democratic than to have the high-and-mighty lampooned and
spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or
humor founded on fantasy or a sense of the grotesque and
absurd, the other is an object of attack."271 Thus, satire
frequently uses exaggeration, analogy, and other rhetorical
devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not
refer to a list of dead individuals nor could the Archbishop of
the Diocese of Bacolod have intended it to mean that the entire
plan of the candidates in his list was to cause death
intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list
of "Team Patay" is juxtaposed with the list of "Team Buhay"
that further emphasizes the theme of its author: Reproductive
health is an important marker for the church of petitioners to
endorse.
The messages in the tarpaulins are different from the usual
messages of candidates. Election paraphernalia from
candidates and political parties are more declarative and
descriptive and contain no sophisticated literary allusion to
any social objective. Thus, they usually simply exhort the
public to vote for a person with a brief description of the
attributes of the candidate. For example "Vote for [x], Sipag at
Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba
kami sa Makati."
This court’s construction of the guarantee of freedom of
expression has always been wary of censorship or subsequent
punishment that entails evaluation of the speaker’s viewpoint
or the content of one’s speech. This is especially true when the
expression involved has political consequences. In this case, it
hopes to affect the type of deliberation that happens during
elections. A becoming humility on the part of any human
institution no matter how endowed with the secular ability to
decide legal controversies with finality entails that we are not
the keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively,
provides space for the weakest dissent. Tolerance has always
been a libertarian virtue whose version is embedded in our
Billof Rights. There are occasional heretics of yesterday that
have become our visionaries. Heterodoxies have always given
us pause. The unforgiving but insistent nuance that the
majority surely and comfortably disregards provides us with
the checks upon reality that may soon evolve into creative
solutions to grave social problems. This is the utilitarian
version. It could also be that it is just part of human necessity
to evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical
document. It contains other provisions which, taken together
with the guarantee of free expression, enhances each other’s
value. Among these are the provisions that acknowledge the
idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise
extraordinary prudence and produce narrowly tailored
guidance fit to the facts as given so as not to unwittingly cause
the undesired effect of diluting freedoms as exercised in
reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two
paradigms of free speech that separate at the point of giving
priority to equality vis-à-vis liberty.272
In an equality-based approach, "politically disadvantaged
speech prevails over regulation[,] but regulation promoting
political equality prevails over speech."273 This view allows
the government leeway to redistribute or equalize ‘speaking
power,’ such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued
within society’s ideological ladder.274 This view
acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have
capabilities that may drown out the messages of others. This is
especially true in a developing or emerging economy that is
part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as
to find one’s authentic self or to participate in the self
determination of one’s communities is not new only to law. It
has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and
social theorist Herbert Marcuse recognized how
institutionalized inequality exists as a background limitation,
rendering freedoms exercised within such limitation as merely
"protect[ing] the already established machinery of
discrimination."275 In his view, any improvement "in the
normal course of events" within an unequal society, without
subversion, only strengthens existing interests of those in
power and control.276
In other words, abstract guarantees of fundamental rights like
freedom of expression may become meaningless if not taken
in a real context. This tendency to tackle rights in the abstract
compromises liberties. In his words:
Liberty is self-determination, autonomy—this is almost a
tautology, but a tautology which results from a whole series of
synthetic judgments. It stipulates the ability to determine one’s
own life: to be able to determine what to do and what not to
do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that
which he actually is or happens to be; it is rather the individual
as a human being who is capable of being free with the others.
And the problem of making possible such a harmony between
every individual liberty and the other is not that of finding a
compromise between competitors, or between freedom and
law, between general and individual interest, common and
private welfare in an established society, but of creating the
society in which man is no longer enslaved by institutions
which vitiate self-determination from the beginning. In other
words, freedom is still to be created even for the freest of the
existing societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument — with all
opinions presented to and deliberated by the people —
"implies a necessary condition, namely, that the people must
be capable of deliberating and choosing on the basis of
knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be
the result of autonomous thought."278 He submits that
"[d]ifferent opinions and ‘philosophies’ can no longer
compete peacefully for adherence and persuasion on rational
grounds: the ‘marketplace of ideas’ is organized and delimited
by those who determine the national and the individual
interest."279 A slant toward left manifests from his belief that
"there is a ‘natural right’ of resistance for oppressed and
overpowered minorities to use extralegal means if the legal
ones have proved to be inadequate."280 Marcuse, thus, stands
for an equality that breaks away and transcends from
established hierarchies, power structures, and indoctrinations.
The tolerance of libertarian society he refers to as "repressive
tolerance."
Legal scholars
The 20th century also bears witness to strong support from
legal scholars for "stringent protections of expressive
liberty,"281 especially by political egalitarians. Considerations
such as "expressive, deliberative, and informational
interests,"282 costs or the price of expression, and background
facts, when taken together, produce bases for a system of
stringent protections for expressive liberties.283
Many legal scholars discuss the interest and value of
expressive liberties. Justice Brandeis proposed that "public
discussion is a political duty."284 Cass Sustein placed
political speech on the upper tier of his twotier model for
freedom of expression, thus, warranting stringent
protection.285 He defined political speech as "both intended
and received as a contribution to public deliberation about
some issue."286
But this is usually related also tofair access to opportunities
for such liberties.287 Fair access to opportunity is suggested
to mean substantive equality and not mere formal
equalitysince "favorable conditions for realizing the
expressive interest will include some assurance of the
resources required for expression and some guarantee that
efforts to express views on matters of common concern will
not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis’ solution is to "remedy the
harms of speech with more speech."289 This view moves
away from playing down the danger as merely exaggerated,
toward "tak[ing] the costs seriously and embrac[ing]
expression as the preferred strategy for addressing
them."290 However, in some cases, the idea of more speech
may not be enough. Professor Laurence Tribe observed the
need for context and "the specification of substantive values
before [equality] has full meaning."291 Professor Catherine A.
MacKinnon adds that "equality continues to be viewed in a
formal rather than a substantive sense."292 Thus, more speech
can only mean more speech from the few who are dominant
rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v.
COMELEC on the validity of Section 11(b) ofthe Electoral
Reforms Law of 1987.293 This section "prohibits mass media
from selling or giving free of charge print space or air time for
campaign or other political purposes, except to the
Commission on Elections."294 This court explained that this
provision only regulates the time and manner of advertising in
order to ensure media equality among candidates.295 This
court grounded this measure on constitutional provisions
mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and
other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates
in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the
enactment of measures that protect and enhance the right of all
the people to human dignity, reducesocial, economic, and
political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common
good.
To this end, the State shall regulate the acquisition, ownership,
use, and disposition of property and its increments. (Emphasis
supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to
opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s
guarantee for more substantive expressive freedoms that take
equality of opportunities into consideration during elections.
The other view
However, there is also the other view. This is that
considerations of equality of opportunity or equality inthe
ability of citizens as speakers should not have a bearing in free
speech doctrine. Under this view, "members of the public are
trusted to make their own individual evaluations of speech,
and government is forbidden to intervene for paternalistic or
redistributive reasons . . . [thus,] ideas are best left to a freely
competitive ideological market."297 This is consistent with
the libertarian suspicion on the use of viewpoint as well as
content to evaluate the constitutional validity or invalidity of
speech.
The textual basis of this view is that the constitutional
provision uses negative rather than affirmative language. It
uses ‘speech’ as its subject and not
‘speakers’.298 Consequently, the Constitution protects free
speech per se, indifferent to the types, status, or associations of
its speakers.299 Pursuant to this, "government must leave
speakers and listeners in the private order to their own devices
in sorting out the relative influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC
formulates this view that freedom of speech includes "not only
the right to express one’s views, but also other cognate rights
relevant to the free communication [of] ideas, not excluding
the right to be informed on matters of public concern."301 She
adds:
And since so many imponderables may affect the outcome of
elections — qualifications of voters and candidates, education,
means of transportation, health, public discussion, private
animosities, the weather, the threshold of a voter’s resistance
to pressure — the utmost ventilation of opinion of men and
issues, through assembly, association and organizations, both
by the candidate and the voter, becomes a sine qua non for
elections to truly reflect the will of the
electorate.302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if
only to emphasize free speech primacy such that"courts, as a
rule are wary to impose greater restrictions as to any attempt
to curtail speeches with political content,"303 thus:
the concept that the government may restrict the speech of
some elements in our society in order to enhance the relative
voice of the others is wholly foreign to the First Amendment
which was designed to "secure the widest possible
dissemination of information from diverse and antagonistic
sources" and "to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the
people."304
This echoes Justice Oliver Wendell Holmes’ submission "that
the market place of ideas is still the best alternative to
censorship."305
Parenthetically and just to provide the whole detail of the
argument, the majority of the US Supreme Court in the
campaign expenditures case of Buckley v. Valeo "condemned
restrictions (even if content-neutral) on expressive liberty
imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political
arena."306 The majority did not use the equality-based
paradigm.
One flaw of campaign expenditurelimits is that "any limit
placed on the amount which a person can speak, which takes
out of his exclusive judgment the decision of when enough is
enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political
campaigning inherently constricts the sum of public
information and runs counter to our ‘profound national
commitment that debate on public issues should be
uninhibited, robust, and wide-open.’"308
In fact, "[c]onstraining those who have funds or have been
able to raise funds does not ease the plight of those without
funds in the first place . . . [and] even if one’s main concern
isslowing the increase in political costs, it may be more
effective torely on market forces toachieve that result than on
active legal intervention."309 According to Herbert
Alexander, "[t]o oppose limitations is not necessarily to argue
that the sky’s the limit [because in] any campaign there are
saturation levels and a point where spending no longer pays
off in votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into
consideration the constitutional respect for human potentiality
and the effect of speech. It valorizes the ability of human
beings to express and their necessity to relate. On the other
hand, a complete guarantee must also take into consideration
the effects it will have in a deliberative democracy. Skewed
distribution of resources as well as the cultural hegemony of
the majority may have the effect of drowning out the speech
and the messages of those in the minority. In a sense, social
inequality does have its effect on the exercise and effect of the
guarantee of free speech. Those who have more will have
better access to media that reaches a wider audience than those
who have less. Those who espouse the more popular ideas will
have better reception than the subversive and the dissenters of
society.To be really heard and understood, the marginalized
view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the
speaker and the content of his or her expression. This view,
thus, restricts laws or regulation that allows public officials to
make judgments of the value of such viewpoint or message
content. This should still be the principal approach.
However, the requirements of the Constitution regarding
equality in opportunity must provide limits to some expression
during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral
campaigns made by candidates or the members of their
political parties or their political parties may be regulated as to
time, place, and manner. This is the effect of our rulings in
Osmeña v. COMELEC and National Press Club v.
COMELEC.
Regulation of speech in the context of electoral campaigns
made by persons who are not candidates or who do not speak
as members of a political party which are, taken as a whole,
principally advocacies of a social issue that the public must
consider during elections is unconstitutional. Such regulation
is inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate
including those that can catalyze candid, uninhibited, and
robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by
a private citizen which will not amount toan election
paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be
constitutionally valid if it reaches into speech of persons who
are not candidates or who do not speak as members of a
political party if they are not candidates, only if what is
regulated is declarative speech that, taken as a whole, has for
its principal object the endorsement of a candidate only. The
regulation (a) should be provided by law, (b) reasonable, (c)
narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the
primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object.
The regulation must only be with respect to the time, place,
and manner of the rendition of the message. In no situation
may the speech be prohibited or censored onthe basis of its
content. For this purpose, it will notmatter whether the speech
is made with or on private property.
This is not the situation, however, in this case for two reasons.
First, as discussed, the principal message in the twin tarpaulins
of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice
Antonio Carpio, the present law — Section 3.3 of Republic
Act No. 9006 and Section 6(c) of COMELEC Resolution No.
9615 — if applied to this case, will not pass the test of
reasonability. A fixed size for election posters or tarpaulins
without any relation to the distance from the intended average
audience will be arbitrary. At certain distances, posters
measuring 2 by 3 feet could no longer be read by the general
public and, hence, would render speech meaningless. It will
amount to the abridgement of speech with political
consequences.
IV
Right to property
Other than the right to freedom of expression311 and the
meaningful exercise of the right to suffrage,312 the present
case also involves one’s right to property.313
Respondents argue that it is the right of the state to prevent the
circumvention of regulations relating to election propaganda
by applying such regulations to private
individuals.314 Certainly, any provision or regulation can be
circumvented. But we are not confronted with this possibility.
Respondents agree that the tarpaulin in question belongs to
petitioners. Respondents have also agreed, during the oral
arguments, that petitioners were neither commissioned nor
paid by any candidate or political party to post the material on
their walls.
Even though the tarpaulin is readily seen by the public, the
tarpaulin remains the private property of petitioners. Their
right to use their property is likewise protected by the
Constitution.
In Philippine Communications Satellite Corporation v.
Alcuaz:315
Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary or
unreasonable infringement of property rights is void, because
it is repugnant to the constitutional guaranties of due process
and equal protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates
where decals and stickers should be posted is "so broad that it
encompasses even the citizen’s private
property."317 Consequently, it violates Article III, Section 1
of the Constitution which provides thatno person shall be
deprived of his property without due process of law. This
court explained:
Property is more than the mere thing which a person owns, it
includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential
attributes.
Property is more than the mere thing which a person owns. It
is elementary that it includes the right to acquire, use, and
dispose of it. The Constitution protects these essential
attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41
L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the
free use, enjoyment, and disposal of a person’s acquisitions
without control or diminution save by the law of the land. 1
Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60
[1917])318
This court ruled that the regulation in Adiong violates private
property rights:
The right to property may be subject to a greater degree of
regulation but when this right is joined by a "liberty" interest,
the burden of justification on the part of the Government must
be exceptionally convincing and irrefutable. The burden is not
met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive
that it prohibits the posting or display of election propaganda
in any place, whether public or private, except inthe common
poster areas sanctioned by COMELEC. This means that a
private person cannot post his own crudely prepared personal
poster on his own front dooror on a post in his yard. While the
COMELEC will certainly never require the absurd, there are
no limits to what overzealous and partisan police officers,
armed with a copy of the statute or regulation, may
do.319 Respondents ordered petitioners, who are private
citizens, to remove the tarpaulin from their own property. The
absurdity of the situation is in itself an indication of the
unconstitutionality of COMELEC’s interpretation of its
powers.
Freedom of expression can be intimately related with the right
to property. There may be no expression when there is no
place where the expression may be made. COMELEC’s
infringement upon petitioners’ property rights as in the present
case also reaches out to infringement on their fundamental
right to speech.
Respondents have not demonstrated thatthe present state
interest they seek to promote justifies the intrusion into
petitioners’ property rights. Election laws and regulations
must be reasonable. It must also acknowledge a private
individual’s right to exercise property rights. Otherwise, the
due process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act
intend to prevent the posting of election propaganda in private
property without the consent of the owners of such private
property. COMELEC has incorrectly implemented these
regulations. Consistent with our ruling in Adiong, we find that
the act of respondents in seeking to restrain petitioners from
posting the tarpaulin in their own private property is an
impermissible encroachments on the right to property.
V attempt at accommodation of religious beliefs.
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the
COMELEC in issuing the questioned notice and letter violated
the right of petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of
church and state.320 This takes many forms. Article III,
Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed.
Noreligious test shall be required for the exercise of civil or
political rights.
There are two aspects of this provision.321 The first is the
none stablishment clause.322 Second is the free exercise and
enjoyment of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops,
ustadz, imams, or any other religious make such act immune
from any secular regulation.324 The religious also have a
secular existence. They exist within a society that is regulated
by law.
The Bishop of Bacolod caused the posting of the tarpaulin.
But not all acts of a bishop amounts to religious expression.
This notwithstanding petitioners’ claim that "the views and
position of the petitioners, the Bishop and the Diocese of
Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems
from the reality that every act can be motivated by moral,
ethical, and religious considerations. In terms of their effect on
the corporeal world, these acts range from belief, to
expressions of these faiths, to religious ceremonies, and then
to acts of a secular character that may, from the point of view
of others who do not share the same faith or may not subscribe
to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts
are not conclusive on this court. Certainly, our powers of
adjudication cannot be blinded by bare claims that acts are
religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The
Division Superintendent of Schools of Cebu326 in claiming
that the court "emphatically" held that the adherents ofa
particular religion shall be the ones to determine whether a
particular matter shall be considered ecclesiastical in
nature.327 This court in Ebralinagexempted Jehovah’s
Witnesses from participating in the flag ceremony "out of
respect for their religious beliefs, [no matter how] "bizarre"
those beliefsmay seem to others."328 This court found a
balance between the assertion of a religious practice and the
compelling necessities of a secular command. It was an early
In Estrada v. Escritor,329 this court adopted a policy of
benevolent neutrality:
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government
policies that take religion specifically intoaccount not to
promote the government’s favored form of religion, but to
allow individuals and groups to exercise their religion without
hindrance. Their purpose or effect therefore is to remove a
burden on, or facilitate the exercise of, a person’s or
institution’s religion. As Justice Brennan explained, the
"government [may] take religion into account . . . to exempt,
when possible, from generally applicable governmental
regulation individuals whose religious beliefs and practices
would otherwise thereby be infringed, or to create without
state involvement an atmosphere in which voluntary religious
exercise may flourish."330
This court also discussed the Lemon test in that case, such that
a regulation is constitutional when: (1) it has a secular
legislative purpose; (2) it neither advances nor inhibits
religion; and (3) it does not foster an excessive entanglement
with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its
face, "does not convey any religious doctrine of the Catholic
church."332 That the position of the Catholic church appears
to coincide with the message of the tarpaulin regarding the RH
Law does not, by itself, bring the expression within the ambit
of religious speech. On the contrary, the tarpaulin clearly
refers to candidates classified under "Team Patay" and "Team
Buhay" according to their respective votes on the RH Law.
The same may be said of petitioners’ reliance on papal
encyclicals to support their claim that the expression onthe
tarpaulin is an ecclesiastical matter. With all due respect to the
Catholic faithful, the church doctrines relied upon by
petitioners are not binding upon this court. The position of the
Catholic religion in the Philippines as regards the RH Law
does not suffice to qualify the posting by one of its members
of a tarpaulin as religious speech solely on such basis. The
enumeration of candidates on the face of the tarpaulin
precludes any doubtas to its nature as speech with political
consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in
Austria v. National Labor Relations Commission333 cited by
petitioners finds no application in the present case. The
posting of the tarpaulin does not fall within the category of
matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for
excommunication, ordinations of religious ministers,
administration of sacraments and other activities withattached
religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to
do what it thought was its duty in this case. However, it was
misdirected.
COMELEC’s general role includes a mandate to ensure equal
opportunities and reduce spending among candidates and their
registered political parties. It is not to regulate or limit the
speech of the electorate as it strives to participate inthe
electoral exercise.
The tarpaulin in question may be viewed as producing a
caricature of those who are running for public office.Their
message may be construed generalizations of very complex
individuals and party-list organizations.
Embedded in the tarpaulin, however, are opinions expressed
by petitioners. It is a specie of expression protected by our
fundamental law. It is an expression designed to invite
attention, cause debate, and hopefully, persuade. It may be
motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions will have
very real secular consequences. Certainly, provocative
messages do matter for the elections.
What is involved in this case is the most sacred of speech
forms: expression by the electorate that tends to rouse the
public to debate contemporary issues. This is not speechby
candidates or political parties to entice votes. It is a portion of
the electorate telling candidates the conditions for their
election. It is the substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy
that we should all deserve. It is protected as a fundamental and
primordial right by our Constitution. The expression in the
medium chosen by petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The
temporary restraining order previously issued is hereby made
permanent. The act of the COMELEC in issuing the assailed
notice dated February 22, 2013 and letter dated February 27,
2013 is declared unconstitutional.
SO ORDERED.

They are classified into black and white: as belonging to

"Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still

protected speech.

That petitioners chose to categorize them as purveyors of

death or of life on the basis of a single issue — and a complex
piece of legislation at that — can easily be interpreted as
anattempt to stereo type the candidates and party-list
organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses
that chose not to follow the example of petitioners.

Some may have thought that there should be more room to

consider being more broad-minded and non-judgmental. Some
may have expected that the authors would give more space to
practice forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an

enumeration of our fundamental liberties. It is not a detailed
code that prescribes good conduct. It provides space for all to
be guided by their conscience, not only in the act that they do
to others but also in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded

not only by those in the minority. This can often be expressed
by dominant institutions, even religious ones. That they made
their point dramatically and in a large way does not
necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.