Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 132601 January 19, 1999

LEO ECHEGARAY, petitioner,

vs.
SECRETARY OF JUSTICE, ET AL., respondents.

RESOLUTION

PUNO, J.:

For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this Court dated
January 4, 1990 temporarily restraining the execution of petitioner and Supplemental Motion to Urgent Motion for
Reconsideration. It is the submission of public respondents that:

The Decision in this case having become final and executory, its execution enters the exclusive ambit of authority of
the executive authority. The issuance of the TRO may be construed as trenching on that sphere of executive
authority;

The issuance of the temporary restraining order . . . creates dangerous precedent as there will never be an end to
litigation because there is always a possibility that Congress may repeal a law.

Congress had earlier deliberated extensively on the death penalty bill. To be certain, whatever question may now be
raised on the Death Penalty Law before the present Congress within the 6-month period given by this Honorable
Court had in all probability been fully debated upon . . .

Under the time honored maxim lex futuro, judex praeterito, the law looks forward while the judge looks at the past, . .
. the Honorable Court in issuing the TRO has transcended its power of judicial review.

At this moment, certain circumstances/supervening events transpired to the effect that the repeal or modification of
the law imposing death penalty has become nil, to wit:

The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving
heinous crimes.

The resolution of Congressman Golez, et al., that they are against the repeal of the law;

The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel.

In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached a copy of House
Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of
Representative to reject any move to review Republic Act No. 7659 which provided for the re-imposition of death
penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of
Representative on this matter, and urging the President to exhaust all means under the law to immediately
implement the death penalty law." The Resolution was concurred in by one hundred thirteen (113) congressman.

In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of judicial power and
duty and does not trench on executive powers nor on congressional prerogatives; (2) the exercise by this Court of
its power to stay execution was reasonable; (3) the Court did not lose jurisdiction to address incidental matters
involved or arising from the petition; (4) public respondents are estopped from challenging the Court's jurisdiction;
and (5) there is no certainty that the law on capital punishment will not be repealed or modified until Congress
convenes and considers all the various resolutions and bills filed before it.

Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not incidents in G.R. No.
117472, where the death penalty was imposed on petitioner on automatic review of his conviction by this Court. The
instant motions were filed in this case, G.R. No. 132601, where the constitutionality of R.A. No. 8177 (Lethal
Injection Law) and its implementing rules and regulations was assailed by petitioner. For this reason, the Court in its
Resolution of January 4, 1999 merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated
January 7, 1999 and Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing
to intervene in the case at bar, let alone the fact that the interest of the State is properly represented by the Solicitor
General.

We shall now resolve the basic issues raised by the public respondents.

First. We do not agree with the sweeping submission of the public respondents that this Court lost its jurisdiction
over the case at bar and hence can no longer restrain the execution of the petitioner. Obviously, public respondents
are invoking the rule that final judgments can no longer be altered in accord with the principle that "it is just as
important that there should be a place to end as there should be a place to begin litigation." 1 To start with, the Court
is not changing even a comma of its final Decision. It is appropriate to examine with precision the metes and bounds
of the Decision of this Court that became final. These metes and bounds are clearly spelled out in the Entry of
Judgment in this case, viz:

ENTRY OF JUDGMENT

This is to certify that on October 12, 1998 a decision rendered in the above-entitled case was filed in this Office, the
dispositive part of which reads as follows:

WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic Act No.
8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules and Regulations to Implement
Republic Act No. 8177 are concerned, which are hereby declared INVALID because (a) Section 17 contravenes
Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659; and (b) Section 19 fails
to provide for review and approval of the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes
the manual confidential, hence unavailable to interested parties including the accused/convict and counsel.
Respondents are hereby enjoined from enforcing and implementing Republic Act No. 8177 until the aforesaid
Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are appropriately amended,
revised and/or corrected in accordance with this Decision.

SO ORDERED.

and that the same has, on November 6, 1988 become final and executory and is hereby recorded in the Book of
Entries of Judgment.

Manila, Philippine.

Clerk of Court

By: (SGD) TERESITA G. DIMAISIP

Acting Chief

Judicial Records Office

The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable Serafin Cuevas,
filed with this Court on October 21, 1998 a Compliance where he submitted the Amended Rules and Regulations
implementing R.A. No. 8177 in compliance with our Decision. On October 28, 1998, Secretary Cuevas submitted a
Manifestation informing the Court that he has caused the publication of the said Amended Rules and Regulations as
required by the Administrative Code. It is crystalline that the Decision of this Court that became final and unalterable
mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19 of the Rules and Regulations to
Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced and implemented until sections 17
and 19 of the Rules and Regulations to Implement R.A. No. 8177 are amended. It is also daylight clear that this
Decision was not altered a whit by this Court. Contrary to the submission of the Solicitor General, the rule on finality
of judgment cannot divest this Court of its jurisdiction to execute and enforce the same judgment. Retired Justice
Camilo Quiason synthesized the well established jurisprudence on this issue as
follows: 2

xxx xxx xxx

the finality of a judgment does not mean that the Court has lost all its powers nor the case. By the finality of the
judgment, what the court loses is its jurisdiction to amend, modify or alter the same. Even after the judgment has
become final the court retains its jurisdiction to execute and enforce it. 3 There is a difference between the
jurisdiction of the court to execute its judgment and its jurisdiction to amend, modify or alter the same. The former
continues even after the judgment has become final for the purpose of enforcement of judgment; the latter
terminates when the judgment becomes final. 4 . . . For after the judgment has become final facts and circumstances
may transpire which can render the execution unjust or impossible.5

In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly pointed out by the
petitioner, as early as 1915, this Court has unequivocably ruled in the case of Director of Prisons v. Judge of First
Instance, 6 viz:

This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject,
that in criminal cases, after the sentence has been pronounced and the period for reopening the same cannot
change or alter its judgment, as its jurisdiction has terminated . . . When in cases of appeal or review the cause has
been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty
in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with
reference to the ending of the cause that the judicial authority terminates by having then passed completely to the
Executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of
execution, in any event are absolutely under the control of the judicial authority, while the executive has no power
over the person of the convict except to provide for carrying out of the penalty and to pardon.
Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it
must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this
point. It is a well-known principle that notwithstanding the order of execution and the executory nature thereof on the
date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common
law this postponement can be ordered in three ways: (1) By command of the King; (2) by discretion (arbitrio) of the
court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible
that assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is
acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that
after the (court) has performed its ministerial duty of ordering the execution . . . and its part is ended, if however a
circumstance arises that ought to delay the execution, and there is an imperative duty to investigate the emergency
and to order a postponement. Then the question arises as to whom the application for postponing the execution
ought to be addressed while the circumstances is under investigation and so to who has jurisdiction to make the
investigation.

The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of
substantial subtraction for our Constitution 7 vests the entirety of judicial power in one Supreme Court and in such
lower courts as may be established by law. To be sure, the important part of a litigation, whether civil or criminal, is
the process of execution of decisions where supervening events may change the circumstance of the parties and
compel courts to intervene and adjust the rights of the litigants to prevent unfairness. It is because of these
unforseen, supervening contingencies that courts have been conceded the inherent and necessary power of control
of its processes and orders to make them conformable to law and justice. 8 For this purpose, Section 6 of Rule 135
provides that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and
other means necessary to carry it into effect may be employed by such court or officer and if the procedure to be
followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable
process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules." It
bears repeating that what the Court restrained temporarily is the execution of its own Decision to give it reasonable
time to check its fairness in light of supervening events in Congress as alleged by petitioner. The Court, contrary to
popular misimpression, did not restrain the effectivity of a law enacted by Congress.1âwphi1.nêt

The more disquieting dimension of the submission of the public respondents that this Court has no jurisdiction to
restrain the execution of petitioner is that it can diminish the independence of the judiciary. Since the implant of
republicanism in our soil, our courts have been conceded the jurisdiction to enforce their final decisions. In accord
with this unquestioned jurisdiction, this Court promulgated rules concerning pleading, practice and procedure which,
among others, spelled out the rules on execution of judgments. These rules are all predicated on the assumption
that courts have the inherent, necessary and incidental power to control and supervise the process of execution of
their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases. Rule 120 governs
judgments in criminal cases. It should be stressed that the power to promulgate rules of pleading, practice and
procedure was granted by our Constitutions to this Court to enhance its independence, for in the words of Justice
Isagani Cruz "without independence and integrity, courts will lose that popular trust so essential to the maintenance
of their vigor as champions of justice." 9 Hence, our Constitutions continuously vested this power to this Court for it
enhances its independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning
pleading, practice and procedure was granted but it appeared to be co-existent with legislative power for it was
subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:

Sec.13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and procedure
in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade
and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice and procedure
are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to
alter and modify the same. The Congress have the power to repeal, alter or supplement the rules concerning
pleading, practice and procedure, and the admission to the practice of law in the Philippines.

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re
Cunanan 10Congress in the exercise of its power to amend rules of the Supreme Court regarding admission to the
practice of law, enacted the Bar Flunkers Act of 1953 11 which considered as a passing grade, the average of 70%
in the bar examinations after July 4, 1946 up to August 1951 and 71% in the 1952 bar examinations. This Court
struck down the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that " . . . the disputed law is not a
legislation; it is a judgment — a judgment promulgated by this Court during the aforecited years affecting the bar
candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable
reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may do so.
Any attempt on the part of these department would be a clear usurpation of its function, as is the case with the law
in question." 12The venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license for
the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive
character, or as other authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court
qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules concerning pleading,
practice and procedure, and the admission to the practice of law in the Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution
reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, . . .
which, however, may be repealed, altered or supplemented by the Batasang Pambansa . . . ." More completely,
Section 5(2)5 of its Article X provided:
xxx xxx xxx

Sec.5. The Supreme Court shall have the following powers.

xxx xxx xxx

(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law,
and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang
Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights.

Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to it
the additional power to promulgate rules governing the integration of the Bar. 13

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the
rule making power of this Court. Its Section 5(5), Article VIII provides:

xxx xxx xxx

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

xxx xxx xxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by
the Supreme Court.

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate
rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time
the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the
1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading,
practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer
shared by this Court with Congress, more so with the Executive. If the manifest intent of the 1987 Constitution is to
strengthen the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has no
jurisdiction to control the process of execution of its decisions, a power conceded to it and which it has exercised
since time immemorial.

To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to control and
supervise the implementation of its decision in the case at bar. As aforestated, our Decision became final and
executory on November 6, 1998. The records reveal that after November 6, 1998, or on December 8, 1998, no less
than the Secretary of Justice recognized the jurisdiction of this Court by filing a Manifestation and Urgent Motion to
compel the trial judge, the Honorable Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a
certified true copy of the Warrant of Execution dated November 17, 1998 bearing the designated execution day of
death convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the execution
date fixed by such trial court to the public when requested." The relevant portions of the Manifestation and Urgent
Motion filed by the Secretary of Justice beseeching this Court "to provide the appropriate relief" state:

xxx xxx xxx

5. Instead of filing a comment on Judge Ponferrada's Manifestation however, herein respondent is submitting the
instant Manifestation and Motion (a) to stress, inter alia, that the non-disclosure of the date of execution deprives
herein respondent of vital information necessary for the exercise of his statutory powers, as well as renders
nugatory the constitutional guarantee that recognizes the people's right to information of public concern, and (b) to
ask this Honorable Court to provide the appropriate relief.

6. The non-disclosure of the date of execution deprives herein respondent of vital information necessary for the
exercise of his power of supervision and control over the Bureau of Corrections pursuant to Section 39, Chapter 8,
Book IV of the Administrative Code of 1987, in relation to Title III, Book IV of such Administrative Code, insofar as
the enforcement of Republic Act No. 8177 and the Amended Rules and Regulations to Implement Republic Act No.
8177 is concerned and for the discharge of the mandate of seeing to it that laws and rules relative to the execution
of sentence are faithfully observed.

7. On the other hand, the willful omission to reveal the information about the precise day of execution limits the
exercise by the President of executive clemency powers pursuant to Section 19, Article VII (Executive Department)
of the 1987 Philippine Constitution and Article 81 of the Revised Penal Code, as amended, which provides that the
death sentence shall be carried out "without prejudice to the exercise by the President of his executive powers at all
times." (Emphasis supplied) For instance, the President cannot grant reprieve, i.e., postpone the execution of a
sentence to a day certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a precise date to reckon with.
The exercise of such clemency power, at this time, might even work to the prejudice of the convict and defeat the
purpose of the Constitution and the applicable statute as when the date at execution set by the President would be
earlier than that designated by the court.
8. Moreover, the deliberate non-disclosure of information about the date of execution to herein respondent and the
public violates Section 7, Article III (Bill of Rights) and Section 28, Article II (Declaration of Principles and State
Policies) of the 1987 Philippine Constitution which read:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development shall, be afforded the citizen, subject to such
limitations as may beprovided by law.

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all transactions involving public interest.

9. The "right to information" provision is self-executing. It supplies "the rules by means of which the right to
information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by guaranteeing the
right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein
recognized may be asserted by the people upon the ratification of the Constitution without need for any ancillary act
of the Legislature (Id., at p. 165) What may be provided for by the Legislature are reasonable conditions and
limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of
full public disclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28). However, it cannot be
overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III,
Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter." (Decision of the
Supreme Court En Banc in Legaspi v. Civil Service Commission, 150 SCRA 530, 534-535 [1987].

The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner Echegaray was filed by
his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his client's right to due process and the public's
right to information. The Solicitor General, as counsel for public respondents, did not oppose petitioner's motion on
the ground that this Court has no more jurisdiction over the process of execution of Echegaray. This Court granted
the relief prayed for by the Secretary of Justice and by the counsel of the petitioner in its Resolution of December
15, 1998. There was not a whimper of protest from the public respondents and they are now estopped from
contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court does not depend
on the convenience of litigants.

II

Second. We likewise reject the public respondents' contention that the "decision in this case having become final
and executory, its execution enters the exclusive ambit of authority of the executive department . . .. By granting the
TRO, the Honorable Court has in effect granted reprieve which is an executive function." 14 Public respondents cite
as their authority for this proposition, Section 19, Article VII of the Constitution which reads:

Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures after conviction by final judgment. He shall also have the
power to grant amnesty with the concurrence of a majority of all the members of the Congress.

The text and tone of this provision will not yield to the interpretation suggested by the public respondents. The
provision is simply the source of power of the President to grant reprieves, commutations, and pardons and remit
fines and forfeitures after conviction by final judgment. It also provides the authority for the President to grant
amnesty with the concurrence of a majority of all the members of the Congress. The provision, however, cannot be
interpreted as denying the power of courts to control the enforcement of their decisions after their finality. In truth, an
accused who has been convicted by final judgment still possesses collateral rights and these rights can be claimed
in the appropriate courts. For instance, a death convict who become insane after his final conviction cannot be
executed while in a state of insanity. 15 As observed by Antieau, "today, it is generally assumed that due process of
law will prevent the government from executing the death sentence upon a person who is insane at the time of
execution." 16 The suspension of such a death sentence is undisputably an exercise of judicial power. It is not a
usurpation of the presidential power of reprieve though its effects is the same — the temporary suspension of the
execution of the death convict. In the same vein, it cannot be denied that Congress can at any time amend R.A. No.
7659 by reducing the penalty of death to life imprisonment. The effect of such an amendment is like that of
commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its plenary power to
amend laws be considered as a violation of the power of the President to commute final sentences of conviction.
The powers of the Executive, the Legislative and the Judiciary to save the life of a death convict do not exclude
each other for the simple reason that there is no higher right than the right to life. Indeed, in various States in the
United States, laws have even been enacted expressly granting courts the power to suspend execution of convicts
and their constitutionality has been upheld over arguments that they infringe upon the power of the President to
grant reprieves. For the public respondents therefore to contend that only the Executive can protect the right to life
of an accused after his final conviction is to violate the principle of co-equal and coordinate powers of the three
branches of our government.

III

Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its proper perspective
as it has been grievously distorted especially by those who make a living by vilifying courts. Petitioner filed his Very
Urgent Motion for Issuance of TRO on December 28, 1998 at about 11:30 p.m. He invoked several grounds, viz: (1)
that his execution has been set on January 4, the first working day of 1999; (b) that members of Congress had
either sought for his executive clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that
Senator Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital punishment
be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President Marcelo Fernan and
Senator Miriam S. Defensor have publicly declared they would seek a review of the death penalty law; (b.3) Senator
Paul Roco has also sought the repeal of capital punishment, and (b.4) Congressman Salacrib Baterina, Jr., and
thirty five (35) other congressmen are demanding review of the same law.

When the Very Urgent Motion was filed, the Court was already in its traditional recess and would only resume
session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the Court to a Special Session on
January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent Motion. The Court hardly had five (5) hours
to resolve petitioner's motion as he was due to be executed at 3 p.m. Thus, the Court had the difficult problem of
resolving whether petitioner's allegations about the moves in Congress to repeal or amend the Death Penalty Law
are mere speculations or not. To the Court's majority, there were good reasons why the Court should not
immediately dismiss petitioner's allegations as mere speculations and surmises. They noted that petitioner's
allegations were made in a pleading under oath and were widely publicized in the print and broadcast media. It was
also of judicial notice that the 11th Congress is a new Congress and has no less than one hundred thirty (130) new
members whose views on capital punishment are still unexpressed. The present Congress is therefore different
from the Congress that enacted the Death Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A. No.
8177). In contrast, the Court's minority felt that petitioner's allegations lacked clear factual bases. There was hardly
a time to verify petitioner's allegations as his execution was set at 3 p.m. And verification from Congress was
impossible as Congress was not in session. Given these constraints, the Court's majority did not rush to judgment
but took an extremely cautious stance by temporarily restraining the execution of petitioner. The suspension was
temporary — "until June 15, 1999, coeval with the constitutional duration of the present regular session of
Congress, unless it sooner becomes certain that no repeal or modification of the law is going to be made." The
extreme caution taken by the Court was compelled, among others, by the fear that any error of the Court in not
stopping the execution of the petitioner will preclude any further relief for all rights stop at the graveyard. As life was
at, stake, the Court refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt it
needed the certainty that the legislature will not petitioner as alleged by his counsel. It was believed that law and
equitable considerations demand no less before allowing the State to take the life of one its citizens.

The temporary restraining order of this Court has produced its desired result, i.e., the crystallization of the issue
whether Congress is disposed to review capital punishment. The public respondents, thru the Solicitor General, cite
posterior events that negate beyond doubt the possibility that Congress will repeal or amend the death penalty law.
He names these supervening events as follows:

xxx xxx xxx

The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving
heinous crimes.

The resolution of Congressman Golez, et al., that they are against the repeal of the law;

The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel. 18

In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited House Resolution No.
629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representatives
to reject any move to review R.A. No. 7659 which provided for the reimposition of death penalty, notifying the
Senate, the Judiciary and the Executive Department of the position of the House of Representative on this matter
and urging the President to exhaust all means under the law to immediately implement the death penalty law." The
Golez resolution was signed by 113 congressman as of January 11, 1999. In a marathon session yesterday that
extended up 3 o'clock in the morning, the House of Representative with minor, the House of Representative with
minor amendments formally adopted the Golez resolution by an overwhelming vote. House Resolution No. 25
expressed the sentiment that the House ". . . does not desire at this time to review Republic Act 7659." In addition,
the President has stated that he will not request Congress to ratify the Second Protocol in review of the prevalence
of heinous crimes in the country. In light of these developments, the Court's TRO should now be lifted as it has
served its legal and humanitarian purpose.

A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital punishment had been
the subject of endless discussion and will probably never be settled so long as men believe in punishment." 19 In our
clime and time when heinous crimes continue to be unchecked, the debate on the legal and moral predicates of
capital punishment has been regrettably blurred by emotionalism because of the unfaltering faith of the pro and anti-
death partisans on the right and righteousness of their postulates. To be sure, any debate, even if it is no more than
an exchange of epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse
of words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty of this Court to
assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice Brennan reminds us ". . . it is the
very purpose of the Constitution — and particularly the Bill of Rights — to declare certain values transcendent,
beyond the reach of temporary political majorities." 20 Man has yet to invent a better hatchery of justice than the
courts. It is a hatchery where justice will bloom only when we can prevent the roots of reason to be blown away by
the winds of rage. The flame of the rule of law cannot be ignited by rage, especially the rage of the mob which is the
mother of unfairness. The business of courts in rendering justice is to be fair and they can pass their litmus test only
when they can be fair to him who is momentarily the most hated by society. 21
IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration and Supplemental
Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining Order issued in its Resolution of
January 4, 1999.

The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial Court, Quezon City,
Branch 104) to set anew the date for execution of the convict/petitioner in accordance with applicable provisions of
law and the Rules of Court, without further delay.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Kapunan, Mendoza, Martinez, Quisumbing, Purisima and Pardo, JJ.,
concur.

Vitug and Panganiban, JJ., Please see Separate Opinion.

Buena and Gonzaga-Reyes, JJ., took no part.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-37878 November 25, 1932

MANILA ELECTRIC COMPANY, petitioner,

vs.
PASAY TRANSPORTATION COMPANY, INC., ET AL., respondents.

Ross, Lawrence & Selph for petitioner.

Rivera & Francisco for respondent Pasay Transportation Co.
P. A. Remigio for respondent E. B. Gutierrez. A. M. Zarate for respondent Raymundo Transportation Co.
Vicente Ampil for respondent J. Ampil.

MALCOLM, J.:

The preliminary and basic question presented by the petition of the Manila Electric Company, requesting the
members of the Supreme Court, sitting as a board of arbitrators, to fix the terms upon which certain transportation
companies shall be permitted to use the Pasig bridge of the Manila Electric Company and the compensation to be
paid to the Manila Electric Company by such transportation companies, relates to the validity of section 11 of Act
No. 1446 and to the legal right of the members of the Supreme Court, sitting as a board of arbitrators, to act on the
petition. Act No. 1446 above referred to is entitled. "An Act granting a franchise to Charles M. Swift to construct,
maintain, and operate an electric railway, and to construct, maintain, and operate an electric light, heat, and power
system from a point in the City of Manila in an easterly direction to the town of Pasig, in the Province of Rizal."
Section 11 of the Act provides: "Whenever any franchise or right of way is granted to any other person or
corporation, now or hereafter in existence, over portions of the lines and tracks of the grantee herein, the terms on
which said other person or corporation shall use such right of way, and the compensation to be paid to the grantee
herein by such other person or corporation for said use, shall be fixed by the members of the Supreme Court, sitting
as a board of arbitrators, the decision of a majority of whom shall be final."

When the petition of the Manila Electric Company was filed in this court, it was ordered that the petitioner be
required to serve copies on the Attorney-General and the transportation companies affected by the petition.
Thereafter, the Attorney-General disclaimed any interest in the proceedings, and opposition was entered to the
petition by a number of public utility operators. On the submission of memoranda after an oral hearing, the petition
was made ready for resolution.

Examining the statutory provision which is here invoked, it is first noted that power is attempted to be granted to the
members of the Supreme Court sitting as a board of arbitrators and to the Supreme Court as an entity. It is next
seen that the decision of a majority of the members of the Supreme Court is made final. And it is finally observed
that the franchise granted the Manila Electric Company by the Government of the Philippine Islands, although only a
contract between the parties to it, is now made to effect the rights of persons not signatories to the covenant.

The law calls for arbitration which represents a method of the parties' own choice. A submission to arbitration is a
contract. The parties to an arbitration agreement may not oust the courts of jurisdiction of the matters submitted to
arbitration. These are familiar rules which find support in articles 1820 and 1821 of the Civil Code. Citation of
authority is hardly necessary, except that it should be recalled that in the Philippines, and in the United States for
that matter, it has been held that a clause in a contract, providing that all matters in dispute between the parties shall
be referred to arbitrators and to them alone, is contrary to public policy and cannot oust the courts of jurisdiction
(Wahl and Wahl vs. Donaldson, Sims & Co. [1903], 2 Phil., 301; Puentebella vs. Negros Coal Co. [1927], 50 Phil.,
69; Vega vs. San Carlos Milling Co. [1924], 51 Phil., 908; District of Columbia vs. Bailey [1897], 171 U. S., 161.)

We would not be understood as extending the principles governing arbitration and award too far. Unless the
arbitration agreement is such as absolutely to close the doors of the courts against the parties, the courts should
look with favor upon such amicable arrangements. We can also perceive a distinction between a private contract for
submission to arbitration and agreements to arbitrate falling within the terms of a statute enacted for such purpose
and affecting others than the parties to a particular franchise. Here, however, whatever else may be said in
extenuation, it remains true that the decision of the board of arbitrators is made final, which if literally enforced would
leave a public utility, not a party to the contract authorized by Act No. 1446, without recourse to the courts for a
judicial determination of the question in dispute.

Counsel for the petitioner rely principally on the case of Tallassee Falls Mfg. Co. vs. Commissioner's Court [1908],
158 Ala., 263. It was there held that an Act of a state legislature authorizing the commissioners' court of a certain
county to regulate and fix the rate of toll to be charged by the owners of a bridge is not unconstitutional as
delegating legislative power to the courts. But that is not the question before us. Here the question is not one of
whether or not there has been a delegation of legislative authority to a court. More precisely, the issue concerns the
legal right of the members of the Supreme Court, sitting as a board of arbitrators the decision of a majority of whom
shall be final, to act in that capacity.
We run counter to this dilemma. Either the members of the Supreme Court, sitting as a board of arbitrators, exercise
judicial functions, or the members of the Supreme Court, sitting as board of arbitrators, exercise administrative
or quasi judicial functions. The first case would appear not to fall within the jurisdiction granted the Supreme Court.
Even conceding that it does, it would presuppose the right to bring the matter in dispute before the courts, for any
other construction would tend to oust the courts of jurisdiction and render the award a nullity. But if this be the
proper construction, we would then have the anomaly of a decision by the members of the Supreme Court, sitting as
a board of arbitrators, taken therefrom to the courts and eventually coming before the Supreme Court, where the
Supreme Court would review the decision of its members acting as arbitrators. Or in the second case, if the
functions performed by the members of the Supreme Court, sitting as a board of arbitrators, be considered as
administrative or quasi judicial in nature, that would result in the performance of duties which the members of the
Supreme Court could not lawfully take it upon themselves to perform. The present petition also furnishes an apt
illustration of another anomaly, for we find the Supreme Court as a court asked to determine if the members of the
court may be constituted a board of arbitrators, which is not a court at all.lawphil.net

The Supreme Court of the Philippine Islands represents one of the three divisions of power in our government. It is
judicial power and judicial power only which is exercised by the Supreme Court. Just as the Supreme Court, as the
guardian of constitutional rights, should not sanction usurpations by any other department of the government, so
should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by
the Organic Act. The Supreme Court and its members should not and cannot be required to exercise any power or
to perform any trust or to assume any duty not pertaining to or connected with the administering of judicial functions.

The Organic Act provides that the Supreme Court of the Philippine Islands shall possess and exercise jurisdiction as
heretofore provided and such additional jurisdiction as shall hereafter be prescribed by law (sec. 26). When the
Organic Act speaks of the exercise of "jurisdiction" by the Supreme Court, it could not only mean the exercise of
"jurisdiction" by the Supreme Court acting as a court, and could hardly mean the exercise of "jurisdiction" by the
members of the Supreme Court, sitting as a board of arbitrators. There is an important distinction between the
Supreme Court as an entity and the members of the Supreme Court. A board of arbitrators is not a "court" in any
proper sense of the term, and possesses none of the jurisdiction which the Organic Act contemplates shall be
exercised by the Supreme Court.lawph!l.net

In the last judicial paper from the pen of Chief Justice Taney, it was said:

The power conferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any
other. . . . Its jurisdiction and powers and duties being defined in the organic law of the government, and being all
strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform
any other duty. . . . The award of execution is a part, and an essential part of every judgment passed by a court
exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the
judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an
opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress
should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is
not the judicial power confided to this court, in the exercise of its appellate jurisdiction; yet it is the whole power that
the court is allowed to exercise under this act of Congress. . . . And while it executes firmly all the judicial powers
entrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character,
and which is not clearly confided to it by the Constitution. . . . (Gordon vs. United States [1864], 2 Wall., 561; 117 U.
S., 697 Appendix.)

Confirming the decision to the basic question at issue, the Supreme Court holds that section 11 of Act No. 1446
contravenes the maxims which guide the operation of a democratic government constitutionally established, and
that it would be improper and illegal for the members of the Supreme Court, sitting as a board of arbitrators, the
decision of a majority of whom shall be final, to act on the petition of the Manila Electric Company. As a result, the
members of the Supreme Court decline to proceed further in the matter.

Avanceña, C.J., Street, Villamor, Ostrand, Villa-Real, Abad Santos, Hull, Vickers, Imperial and Butte, JJ., concur.
 EN BANC

G.R. No. 159139 January 13, 2004

INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY,
EDUARDO H. LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and
MANUEL ALCUAZ JR., petitioners,
vs.
COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.; COMELEC BIDDING and
AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE GUZMAN, JOSE F.
BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.;
and MEGA PACIFIC CONSORTIUM, respondents.

DECISION

PANGANIBAN, J.:

There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence;1 or
(2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. 2 In the present
case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in
clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure. For
the automation of the counting and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract
to "Mega Pacific Consortium" an entity that had not participated in the bidding. Despite this grant, the poll body
signed the actual automation Contract with "Mega Pacific eSolutions, Inc.," a company that joined the bidding but
had not met the eligibility requirements.

Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing
mandatory financial, technical and legal requirements. It also accepted the proferred computer hardware and
software even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to
safeguard the integrity of elections, especially the following three items:

· They failed to achieve the accuracy rating criteria of 99.9995 percent set-up by the Comelec itself

· They were not able to detect previously downloaded results at various canvassing or consolidation levels and to
prevent these from being inputted again

· They were unable to print the statutorily required audit trails of the count/canvass at different levels without any
loss of data

Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the
Court has no choice but to exercise its solemn "constitutional duty"3 to void the assailed Resolution and the subject
Contract. The illegal, imprudent and hasty actions of the Commission have not only desecrated legal and
jurisprudential norms, but have also cast serious doubts upon the poll body’s ability and capacity to conduct
automated elections. Truly, the pith and soul of democracy -- credible, orderly, and peaceful elections -- has been
put in jeopardy by the illegal and gravely abusive acts of Comelec.

The Case

Before us is a Petition4 under Rule 65 of the Rules of Court, seeking (1) to declare null and void Resolution No.
6074 of the Commission on Elections (Comelec), which awarded "Phase II of the Modernization Project of the
Commission to Mega Pacific Consortium (MPC);" (2) to enjoin the implementation of any further contract that may
have been entered into by Comelec "either with Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc.
(MPEI);" and (3) to compel Comelec to conduct a re-bidding of the project.

The Facts

The following facts are not disputed. They were culled from official documents, the parties’ pleadings, as well as
from admissions during the Oral Argument on October 7, 2003.

On June 7, 1995, Congress passed Republic Act 8046,5 which authorized Comelec to conduct a nationwide
demonstration of a computerized election system and allowed the poll body to pilot-test the system in the March
1996 elections in the Autonomous Region in Muslim Mindanao (ARMM).

On December 22, 1997, Congress enacted Republic Act 84366 authorizing Comelec to use an automated election
system (AES) for the process of voting, counting votes and canvassing/consolidating the results of the national and
local elections. It also mandated the poll body to acquire automated counting machines (ACMs), computer
equipment, devices and materials; and to adopt new electoral forms and printing materials.

Initially intending to implement the automation during the May 11, 1998 presidential elections, Comelec -- in its
Resolution No. 2985 dated February 9, 19987 -- eventually decided against full national implementation and limited
the automation to the Autonomous Region in Muslim Mindanao (ARMM). However, due to the failure of the
machines to read correctly some automated ballots in one town, the poll body later ordered their manual count for
the entire Province of Sulu.8

In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done
manually, as no additional ACMs had been acquired for that electoral exercise allegedly because of time
constraints.

On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization program for the 2004 elections. It
resolved to conduct biddings for the three (3) phases of its Automated Election System; namely, Phase I - Voter
Registration and Validation System; Phase II - Automated Counting and Canvassing System; and Phase III -
Electronic Transmission.

On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172, which allocated the sum
of P2.5 billion to fund the AES for the May 10, 2004 elections. Upon the request of Comelec, she authorized the
release of an additional P500 million.

On January 28, 2003, the Commission issued an "Invitation to Apply for Eligibility and to Bid," which we quote as
follows:

"INVITATION TO APPLY FOR ELIGIBILITY AND TO BID

The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act Nos. 8189 and 8436, invites
interested offerors, vendors, suppliers or lessors to apply for eligibility and to bid for the procurement by purchase,
lease, lease with option to purchase, or otherwise, supplies, equipment, materials and services needed for a
comprehensive Automated Election System, consisting of three (3) phases: (a) registration/verification of voters, (b)
automated counting and consolidation of votes, and (c) electronic transmission of election results, with an approved
budget of TWO BILLION FIVE HUNDRED MILLION (Php2,500,000,000) Pesos.

Only bids from the following entities shall be entertained:

a. Duly licensed Filipino citizens/proprietorships;

b. Partnerships duly organized under the laws of the Philippines and of which at least sixty percent (60%) of the
interest belongs to citizens of the Philippines;

c. Corporations duly organized under the laws of the Philippines, and of which at least sixty percent (60%) of the
outstanding capital stock belongs to citizens of the Philippines;

d. Manufacturers, suppliers and/or distributors forming themselves into a joint venture, i.e., a group of two (2) or
more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a
particular contract, provided that Filipino ownership thereof shall be at least sixty percent (60%); and

e. Cooperatives duly registered with the Cooperatives Development Authority.

Bid documents for the three (3) phases may be obtained starting 10 February 2003, during office hours from the
Bids and Awards Committee (BAC) Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del
Governador, Intramuros, Manila, upon payment at the Cash Division, Commission on Elections, in cash or cashier’s
check, payable to the Commission on Elections, of a non-refundable amount of FIFTEEN THOUSAND PESOS
(Php15,000.00) for each phase. For this purpose, interested offerors, vendors, suppliers or lessors have the option
to participate in any or all of the three (3) phases of the comprehensive Automated Election System.

A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session Hall, Commission on
Elections, Postigo Street, Intramuros, Manila. Should there be questions on the bid documents, bidders are required
to submit their queries in writing to the BAC Secretariat prior to the scheduled Pre-Bid Conference.

Deadline for submission to the BAC of applications for eligibility and bid envelopes for the supply of the
comprehensive Automated Election System shall be at the Session Hall, Commission on Elections, Postigo Street,
Intramuros, Manila on 28 February 2003 at 9:00 a.m.

The COMELEC reserves the right to review the qualifications of the bidders after the bidding and before the contract
is executed. Should such review uncover any misrepresentation made in the eligibility statements, or any changes in
the situation of the bidder to materially downgrade the substance of such statements, the COMELEC shall disqualify
the bidder upon due notice without any obligation whatsoever for any expenses or losses that may be incurred by it
in the preparation of its bid."9

On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain eligibility criteria for bidders and the
schedule of activities for the project bidding, as follows:
"1.) Open to Filipino and foreign corporation duly registered and licensed to do business and is actually doing
business in the Philippines, subject to Sec. 43 of RA 9184 (An Act providing In the Modernization Standardization
and Regulation of the Procurement Activities of the Government and for other purposes etc.)

2.) Track Record:

a) For counting machines – should have been used in at least one (1) political exercise with no less than Twenty
Million Voters;

b) For verification of voters – the reference site of an existing data base installation using Automated Fingerprint
Identification System (AFIS) with at least Twenty Million.

3.) Ten percent (10%) equity requirement shall be based on the total project cost; and

4.) Performance bond shall be twenty percent (20%) of the bid offer.

RESOLVED moreover, that:

1) A. Due to the decision that the eligibility requirements and the rest of the Bid documents shall be released at the
same time, and the memorandum of Comm. Resurreccion Z. Borra dated February 7, 2003, the documents to be
released on Friday, February 14, 2003 at 2:00 o’clock p.m. shall be the eligibility criteria, Terms of Reference (TOR)
and other pertinent documents;

B. Pre-Bid conference shall be on February 18, 2003; and

C. Deadline for the submission and receipt of the Bids shall be on March 5, 2003.

2) The aforementioned documents will be available at the following offices:

a) Voters Validation: Office of Comm. Javier

b) Automated Counting Machines: Office of Comm. Borra

c) Electronic Transmission: Office of Comm. Tancangco"10

On February 17, 2003, the poll body released the Request for Proposal (RFP) to procure the election automation
machines. The Bids and Awards Committee (BAC) of Comelec convened a pre-bid conference on February 18,
2003 and gave prospective bidders until March 10, 2003 to submit their respective bids.

Among others, the RFP provided that bids from manufacturers, suppliers and/or distributors forming themselves into
a joint venture may be entertained, provided that the Philippine ownership thereof shall be at least 60 percent. Joint
venture is defined in the RFP as "a group of two or more manufacturers, suppliers and/or distributors that intend to
be jointly and severally responsible or liable for a particular contract."11

Basically, the public bidding was to be conducted under a two-envelope/two stage system. The bidder’s first
envelope or the Eligibility Envelope should establish the bidder’s eligibility to bid and its qualifications to perform the
acts if accepted. On the other hand, the second envelope would be the Bid Envelope itself. The RFP outlines the
bidding procedures as follows:

"25. Determination of Eligibility of Prospective Bidders

"25.1 The eligibility envelopes of prospective Bidders shall be opened first to determine their eligibility. In case any
of the requirements specified in Clause 20 is missing from the first bid envelope, the BAC shall declare said
prospective Bidder as ineligible to bid. Bid envelopes of ineligible Bidders shall be immediately returned unopened.

"25.2 The eligibility of prospective Bidders shall be determined using simple ‘pass/fail’ criteria and shall be
determined as either eligible or ineligible. If the prospective Bidder is rated ‘passed’ for all the legal, technical and
financial requirements, he shall be considered eligible. If the prospective Bidder is rated ‘failed’ in any of the
requirements, he shall be considered ineligible.

"26. Bid Examination/Evaluation

"26.1 The BAC will examine the Bids to determine whether they are complete, whether any computational errors
have been made, whether required securities have been furnished, whether the documents have been properly
signed, and whether the Bids are generally in order.

"26.2 The BAC shall check the submitted documents of each Bidder against the required documents enumerated
under Clause 20, to ascertain if they are all present in the Second bid envelope (Technical Envelope). In case one
(1) or more of the required documents is missing, the BAC shall rate the Bid concerned as ‘failed’ and immediately
return to the Bidder its Third bid envelope (Financial Envelope) unopened. Otherwise, the BAC shall rate the first bid
envelope as ‘passed’.

"26.3 The BAC shall immediately open the Financial Envelopes of the Bidders whose Technical Envelopes were
passed or rated on or above the passing score. Only Bids that are determined to contain all the bid requirements for
both components shall be rated ‘passed’ and shall immediately be considered for evaluation and comparison.
"26.4 In the opening and examination of the Financial Envelope, the BAC shall announce and tabulate the Total Bid
Price as calculated. Arithmetical errors will be rectified on the following basis: If there is a discrepancy between
words and figures, the amount in words will prevail. If there is a discrepancy between the unit price and the total
price that is obtained by multiplying the unit price and the quantity, the unit price shall prevail and the total price shall
be corrected accordingly. If there is a discrepancy between the Total Bid Price and the sum of the total prices, the
sum of the total prices prevail and the Total Bid Price shall be corrected accordingly.

"26.5 Financial Proposals which do not clearly state the Total Bid Price shall be rejected. Also, Total Bid Price as
calculated that exceeds the approved budget for the contract shall also be rejected.

27. Comparison of Bids

27.1 The bid price shall be deemed to embrace all costs, charges and fees associated with carrying out all the
elements of the proposed Contract, including but not limited to, license fees, freight charges and taxes.

27.2 The BAC shall establish the calculated prices of all Bids rated ‘passed’ and rank the same in ascending order.

xxxxxxxxx

"29. Postqualification

"29.1 The BAC will determine to its satisfaction whether the Bidder selected as having submitted the lowest
calculated bid is qualified to satisfactorily perform the Contract.

"29.2 The determination will take into account the Bidder’s financial, technical and production capabilities/resources.
It will be based upon an examination of the documentary evidence of the Bidder’s qualification submitted by the
Bidder as well as such other information as the BAC deems necessary and appropriate.

"29.3 A bid determined as not substantially responsive will be rejected by the BAC and may not subsequently be
made responsive by the Bidder by correction of the non-conformity.

"29.4 The BAC may waive any informality or non-conformity or irregularity in a bid which does not constitute a
material deviation, provided such waiver does not prejudice or affect the relative ranking of any Bidder.

"29.5 Should the BAC find that the Bidder complies with the legal, financial and technical requirements, it shall make
an affirmative determination which shall be a prerequisite for award of the Contract to the Bidder. Otherwise, it will
make a negative determination which will result in rejection of the Bidder’s bid, in which event the BAC will proceed
to the next lowest calculated bid to make a similar determination of that Bidder’s capabilities to perform
satisfactorily."12

Out of the 57 bidders,13 the BAC found MPC and the Total Information Management Corporation (TIMC) eligible.
For technical evaluation, they were referred to the BAC’s Technical Working Group (TWG) and the Department of
Science and Technology (DOST).

In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said that both MPC and TIMC had
obtained a number of failed marks in the technical evaluation. Notwithstanding these failures, Comelec en banc, on
April 15, 2003, promulgated Resolution No. 6074 awarding the project to MPC. The Commission publicized this
Resolution and the award of the project to MPC on May 16, 2003.

On May 29, 2003, five individuals and entities (including the herein Petitioners Information Technology Foundation
of the Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter14 to
Comelec Chairman Benjamin Abalos Sr. They protested the award of the Contract to Respondent MPC "due to
glaring irregularities in the manner in which the bidding process had been conducted." Citing therein the
noncompliance with eligibility as well as technical and procedural requirements (many of which have been
discussed at length in the Petition), they sought a re-bidding.

In a letter-reply dated June 6, 2003,15 the Comelec chairman -- speaking through Atty. Jaime Paz, his head
executive assistant -- rejected the protest and declared that the award "would stand up to the strictest scrutiny."

Hence, the present Petition.16

The Issues

In their Memorandum, petitioners raise the following issues for our consideration:

"1. The COMELEC awarded and contracted with a non-eligible entity; x x x

"2. Private respondents failed to pass the Technical Test as required in the RFP. Notwithstanding, such failure was
ignored. In effect, the COMELEC changed the rules after the bidding in effect changing the nature of the contract
bidded upon.

"3. Petitioners have locus standi.

"4. Instant Petition is not premature. Direct resort to the Supreme Court is justified."17
In the main, the substantive issue is whether the Commission on Elections, the agency vested with the exclusive
constitutional mandate to oversee elections, gravely abused its discretion when, in the exercise of its administrative
functions, it awarded to MPC the contract for the second phase of the comprehensive Automated Election System.

Before discussing the validity of the award to MPC, however, we deem it proper to first pass upon the procedural
issues: the legal standing of petitioners and the alleged prematurity of the Petition.

This Court’s Ruling

The Petition is meritorious.

First Procedural Issue:

Locus Standi of Petitioners

Respondents chorus that petitioners do not possess locus standi, inasmuch as they are not challenging the validity
or constitutionality of RA 8436. Moreover, petitioners supposedly admitted during the Oral Argument that no law had
been violated by the award of the Contract. Furthermore, they allegedly have no actual and material interest in the
Contract and, hence, do not stand to be injured or prejudiced on account of the award.

On the other hand, petitioners -- suing in their capacities as taxpayers, registered voters and concerned citizens --
respond that the issues central to this case are "of transcendental importance and of national interest." Allegedly,
Comelec’s flawed bidding and questionable award of the Contract to an unqualified entity would impact directly on
the success or the failure of the electoral process. Thus, any taint on the sanctity of the ballot as the expression of
the will of the people would inevitably affect their faith in the democratic system of government. Petitioners further
argue that the award of any contract for automation involves disbursement of public funds in gargantuan amounts;
therefore, public interest requires that the laws governing the transaction must be followed strictly.

We agree with petitioners. Our nation’s political and economic future virtually hangs in the balance, pending the
outcome of the 2004 elections. Hence, there can be no serious doubt that the subject matter of this case is "a matter
of public concern and imbued with public interest";18 in other words, it is of "paramount public interest"19 and
"transcendental importance."20 This fact alone would justify relaxing the rule on legal standing, following the liberal
policy of this Court whenever a case involves "an issue of overarching significance to our society."21 Petitioners’
legal standing should therefore be recognized and upheld.

Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of "illegal disbursement of
public funds,"22 or if public money is being "deflected to any improper purpose";23 or when petitioners seek to
restrain respondent from "wasting public funds through the enforcement of an invalid or unconstitutional law." 24 In
the instant case, individual petitioners, suing as taxpayers, assert a material interest in seeing to it that public funds
are properly and lawfully used. In the Petition, they claim that the bidding was defective, the winning bidder not a
qualified entity, and the award of the Contract contrary to law and regulation. Accordingly, they seek to restrain
respondents from implementing the Contract and, necessarily, from making any unwarranted expenditure of public
funds pursuant thereto. Thus, we hold that petitioners possess locus standi.

Second Procedural Issue:

Alleged Prematurity Due to Non-Exhaustion of Administrative Remedies

Respondents claim that petitioners acted prematurely, since they had not first utilized the protest mechanism
available to them under RA 9184, the Government Procurement Reform Act, for the settlement of disputes
pertaining to procurement contracts.

Section 55 of RA 9184 states that protests against decisions of the Bidding and Awards Committee in all stages of
procurement may be lodged with the head of the procuring entity by filing a verified position paper and paying a
protest fee. Section 57 of the same law mandates that in no case shall any such protest stay or delay the bidding
process, but it must first be resolved before any award is made.

On the other hand, Section 58 provides that court action may be resorted to only after the protests contemplated by
the statute shall have been completed. Cases filed in violation of this process are to be dismissed for lack of
jurisdiction. Regional trial courts shall have jurisdiction over final decisions of the head of the procuring entity, and
court actions shall be instituted pursuant to Rule 65 of the 1997 Rules of Civil Procedure.

Respondents assert that throughout the bidding process, petitioners never questioned the BAC Report finding MPC
eligible to bid and recommending the award of the Contract to it (MPC). According to respondents, the Report
should have been appealed to the Comelc en banc, pursuant to the aforementioned sections of RA 9184. In the
absence of such appeal, the determination and recommendation of the BAC had become final.

The Court is not persuaded.

Respondent Comelec came out with its en banc Resolution No. 6074 dated April 15, 2003, awarding the project to
Respondent MPC even before the BAC managed to issue its written report and recommendation on April 21, 2003.
Thus, how could petitioners have appealed the BAC’s recommendation or report to the head of the procuring entity
(the chairman of Comelec), when the Comelec en banc had already approved the award of the contract to MPC
even before petitioners learned of the BAC recommendation?
It is claimed25 by Comelec that during its April 15, 2003 session, it received and approved the verbal report and
recommendation of the BAC for the award of the Contract to MPC, and that the BAC subsequently re-affirmed its
verbal report and recommendation by submitting it in writing on April 21, 2003. Respondents insist that the law does
not require that the BAC Report be in writing before Comelec can act thereon; therefore, there is allegedly nothing
irregular about the Report as well as the en banc Resolution.

However, it is obvious that petitioners could have appealed the BAC’s report and recommendation to the head of the
procuring entity (the Comelec chair) only upon their discovery thereof, which at the very earliest would have been on
April 21, 2003, when the BAC actually put its report in writing and finally released it. Even then, what would have
been the use of protesting/appealing the report to the Comelec chair, when by that time the Commission en banc
(including the chairman himself) had already approved the BAC Report and awarded the Contract to MPC?

And even assuming arguendo that petitioners had somehow gotten wind of the verbal BAC report on April 15, 2003
(immediately after the en banc session), at that point the Commission en banc had already given its approval to the
BAC Report along with the award to MPC. To put it bluntly, the Comelec en banc itself made it legally impossible for
petitioners to avail themselves of the administrative remedy that the Commission is so impiously harping on. There
is no doubt that they had not been accorded the opportunity to avail themselves of the process provided under
Section 55 of RA 9184, according to which a protest against a decision of the BAC may be filed with the head of the
procuring entity. Nemo tenetur ad impossible,26 to borrow private respondents’ favorite Latin excuse.27

Some Observations on the BAC Report to the Comelec

We shall return to this issue of alleged prematurity shortly, but at this interstice, we would just want to put forward a
few observations regarding the BAC Report and the Comelec en banc’s approval thereof.

First, Comelec contends that there was nothing unusual about the fact that the Report submitted by the BAC came
only after the former had already awarded the Contract, because the latter had been asked to render its report and
recommendation orally during the Commission’s en banc session on April 15, 2003. Accordingly, Comelec
supposedly acted upon such oral recommendation and approved the award to MPC on the same day, following
which the recommendation was subsequently reduced into writing on April 21, 2003. While not entirely outside the
realm of the possible, this interesting and unique spiel does not speak well of the process that Comelec supposedly
went through in making a critical decision with respect to a multi-billion-peso contract.

We can imagine that anyone else standing in the shoes of the Honorable Commissioners would have been
extremely conscious of the overarching need for utter transparency. They would have scrupulously avoided the
slightest hint of impropriety, preferring to maintain an exacting regularity in the performance of their duties, instead
of trying to break a speed record in the award of multi-billion-peso contracts. After all, between April 15 and April 21
were a mere six (6) days. Could Comelec not have waited out six more days for the written report of the BAC,
instead of rushing pell-mell into the arms of MPC? Certainly, respondents never cared to explain the nature of the
Commission’s dire need to act immediately without awaiting the formal, written BAC Report.

In short, the Court finds it difficult to reconcile the uncommon dispatch with which Comelec acted to approve the
multi-billion-peso deal, with its claim of having been impelled by only the purest and most noble of motives.

At any rate, as will be discussed later on, several other factors combine to lend negative credence to Comelec’s
tale.

Second, without necessarily ascribing any premature malice or premeditation on the part of the Comelec officials
involved, it should nevertheless be conceded that this cart-before-the-horse maneuver (awarding of the Contract
ahead of the BAC’s written report) would definitely serve as a clever and effective way of averting and frustrating
any impending protest under Section 55.

Having made the foregoing observations, we now go back to the question of exhausting administrative remedies.
Respondents may not have realized it, but the letter addressed to Chairman Benjamin Abalos Sr. dated May 29,
200328 serves to eliminate the prematurity issue as it was an actual written protest against the decision of the poll
body to award the Contract. The letter was signed by/for, inter alia, two of herein petitioners: the Information
Technology Foundation of the Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon Akol.

Such letter-protest is sufficient compliance with the requirement to exhaust administrative remedies particularly
because it hews closely to the procedure outlined in Section 55 of RA 9184.

And even without that May 29, 2003 letter-protest, the Court still holds that petitioners need not exhaust
administrative remedies in the light of Paat v. Court of Appeals.29 Paat enumerates the instances when the rule on
exhaustion of administrative remedies may be disregarded, as follows:

"(1) when there is a violation of due process,

(2) when the issue involved is purely a legal question,

(3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction,

(4) when there is estoppel on the part of the administrative agency concerned,

(5) when there is irreparable injury,

(6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied
and assumed approval of the latter,

(7) when to require exhaustion of administrative remedies would be unreasonable,

(8) when it would amount to a nullification of a claim,

(9) when the subject matter is a private land in land case proceedings,

(10) when the rule does not provide a plain, speedy and adequate remedy, and

(11) when there are circumstances indicating the urgency of judicial intervention."30

The present controversy precisely falls within the exceptions listed as Nos. 7, 10 and 11: "(7) when to require
exhaustion of administrative remedies would be unreasonable; (10) when the rule does not provide a plain, speedy
and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention." As
already stated, Comelec itself made the exhaustion of administrative remedies legally impossible or, at the very
least, "unreasonable."

In any event, the peculiar circumstances surrounding the unconventional rendition of the BAC Report and the
precipitate awarding of the Contract by the Comelec en banc -- plus the fact that it was racing to have its Contract
with MPC implemented in time for the elections in May 2004 (barely four months away) -- have combined to bring
about the urgent need for judicial intervention, thus prompting this Court to dispense with the procedural exhaustion
of administrative remedies in this case.

Main Substantive Issue:

Validity of the Award to MPC

We come now to the meat of the controversy. Petitioners contend that the award is invalid, since Comelec gravely
abused its discretion when it did the following:

1. Awarded the Contract to MPC though it did not even participate in the bidding

2. Allowed MPEI to participate in the bidding despite its failure to meet the mandatory eligibility requirements

3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the issuance by the BAC of its
Report, which formed the basis of the assailed Resolution, only on April 21, 200331

4. Awarded the Contract, notwithstanding the fact that during the bidding process, there were violations of the
mandatory requirements of RA 8436 as well as those set forth in Comelec’s own Request for Proposal on the
automated election system

5. Refused to declare a failed bidding and to conduct a re-bidding despite the failure of the bidders to pass the
technical tests conducted by the Department of Science and Technology

6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding for the automated counting
machines

After reviewing the slew of pleadings as well as the matters raised during the Oral Argument, the Court deems it
sufficient to focus discussion on the following major areas of concern that impinge on the issue of grave abuse of
discretion:

A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder

B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests

C. Remedial measures and re-testings undertaken by Comelec and DOST after the award, and their effect on the
present controversy

A.

Failure to Establish the Identity, Existence and Eligibility of the Alleged Consortium as a Bidder

On the question of the identity and the existence of the real bidder, respondents insist that, contrary to petitioners’
allegations, the bidder was not Mega Pacific eSolutions, Inc. (MPEI), which was incorporated only on February 27,
2003, or 11 days prior to the bidding itself. Rather, the bidder was Mega Pacific Consortium (MPC), of which MPEI
was but a part. As proof thereof, they point to the March 7, 2003 letter of intent to bid, signed by the president of
MPEI allegedly for and on behalf of MPC. They also call attention to the official receipt issued to MPC,
acknowledging payment for the bidding documents, as proof that it was the "consortium" that participated in the
bidding process.

We do not agree. The March 7, 2003 letter, signed by only one signatory -- "Willy U. Yu, President, Mega Pacific
eSolutions, Inc., (Lead Company/ Proponent) For: Mega Pacific Consortium" -- and without any further proof, does
not by itself prove the existence of the consortium. It does not show that MPEI or its president have been duly pre-
authorized by the other members of the putative consortium to represent them, to bid on their collective behalf and,
more important, to commit them jointly and severally to the bid undertakings. The letter is purely self-serving and
uncorroborated.

Neither does an official receipt issued to MPC, acknowledging payment for the bidding documents, constitute proof
that it was the purported consortium that participated in the bidding. Such receipts are issued by cashiers without
any legally sufficient inquiry as to the real identity orexistence of the supposed payor.

To assure itself properly of the due existence (as well as eligibility and qualification) of the putative consortium,
Comelec’s BAC should have examined the bidding documents submitted on behalf of MPC. They would have easily
discovered the following fatal flaws.

Two-Envelope,

Two-Stage System

As stated earlier in our factual presentation, the public bidding system designed by Comelec under its RFP (Request
for Proposal for the Automation of the 2004 Election) mandated the use of a two-envelope, two-stage system. A
bidder’s first envelope (Eligibility Envelope) was meant to establish its eligibility to bid and its qualifications and
capacity to perform the contract if its bid was accepted, while the second envelope would be the Bid Envelope itself.

The Eligibility Envelope was to contain legal documents such as articles of incorporation, business registrations,
licenses and permits, mayor’s permit, VAT certification, and so forth; technical documents containing documentary
evidence to establish the track record of the bidder and its technical and production capabilities to perform the
contract; and financial documents, including audited financial statements for the last three years, to establish the
bidder’s financial capacity.

In the case of a consortium or joint venture desirous of participating in the bidding, it goes without saying that the
Eligibility Envelope would necessarily have to include a copy of the joint venture agreement, the consortium
agreement or memorandum of agreement -- or a business plan or some other instrument of similar import --
establishing the due existence, composition and scope of such aggrupation. Otherwise, how would Comelec know
who it was dealing with, and whether these parties are qualified and capable of delivering the products and services
being offered for bidding?32

In the instant case, no such instrument was submitted to Comelec during the bidding process. This fact can be
conclusively ascertained by scrutinizing the two-inch thick "Eligibility Requirements" file submitted by Comelec last
October 9, 2003, in partial compliance with this Court’s instructions given during the Oral Argument. This file
purports to replicate the eligibility documents originally submitted to Comelec by MPEI allegedly on behalf of MPC,
in connection with the bidding conducted in March 2003. Included in the file are the incorporation papers and
financial statements of the members of the supposed consortium and certain certificates, licenses and permits
issued to them.

However, there is no sign whatsoever of any joint venture agreement, consortium agreement, memorandum of
agreement, or business plan executed among the members of the purported consortium.

The only logical conclusion is that no such agreement was ever submitted to the Comelec for its consideration, as
part of the bidding process.

It thus follows that, prior the award of the Contract, there was no documentary or other basis for Comelec to
conclude that a consortium had actually been formed amongst MPEI, SK C&C and WeSolv, along with Election.com
and ePLDT.33 Neither was there anything to indicate the exact relationships between and among these firms; their
diverse roles, undertakings and prestations, if any, relative to the prosecution of the project, the extent of their
respective investments (if any) in the supposed consortium or in the project; and the precise nature and extent of
their respective liabilities with respect to the contract being offered for bidding. And apart from the self-serving letter
of March 7, 2003, there was not even any indication that MPEI was the lead company duly authorized to act on
behalf of the others.

So, it necessarily follows that, during the bidding process, Comelec had no basis at all for determining that the
alleged consortium really existed and was eligible and qualified; and that the arrangements among the members
were satisfactory and sufficient to ensure delivery on the Contract and to protect the government’s interest.

Notwithstanding such deficiencies, Comelec still deemed the "consortium" eligible to participate in the bidding,
proceeded to open its Second Envelope, and eventually awarded the bid to it, even though -- per the Comelec’s
own RFP -- the BAC should have declared the MPC ineligible to bid and returned the Second (Bid) Envelope
unopened.

Inasmuch as Comelec should not have considered MPEI et al. as comprising a consortium or joint venture, it should
not have allowed them to avail themselves of the provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-
Operate-Transfer Law), as amended by RA 7718. This provision states in part that a joint venture/consortium
proponent shall be evaluated based on the individual or collective experience of the member-firms of the joint
venture or consortium and of the contractor(s) that it has engaged for the project. Parenthetically, respondents have
uniformly argued that the said IRR of RA 6957, as amended, have suppletory application to the instant case.
Hence, had the proponent MPEI been evaluated based solely on its own experience, financial and operational track
record or lack thereof, it would surely not have qualified and would have been immediately considered ineligible to
bid, as respondents readily admit.

At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies
and guidelines with respect to the bidding process, thereby negating a fair, honest and competitive bidding.

Commissioners Not Aware of Consortium

In this regard, the Court is beguiled by the statements of Commissioner Florentino Tuason Jr., given in open court
during the Oral Argument last October 7, 2003. The good commissioner affirmed that he was aware, of his own
personal knowledge, that there had indeed been a written agreement among the "consortium" members,34 although
it was an internal matter among them,35 and of the fact that it would be presented by counsel for private
respondent.36

However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose C. Vitug, Commissioner Tuason
in effect admitted that, while he was the commissioner-in-charge of Comelec’s Legal Department, he had never
seen, even up to that late date, the agreement he spoke of.37 Under further questioning, he was likewise unable to
provide any information regarding the amounts invested into the project by several members of the claimed
consortium.38 A short while later, he admitted that the Commission had not taken a look at the agreement (if any).39

He tried to justify his position by claiming that he was not a member of the BAC. Neither was he the commissioner-
in-charge of the Phase II Modernization project (the automated election system); but that, in any case, the BAC and
the Phase II Modernization Project Team did look into the aspect of the composition of the consortium.

It seems to the Court, though, that even if the BAC or the Phase II Team had taken charge of evaluating the
eligibility, qualifications and credentials of the consortium-bidder, still, in all probability, the former would have
referred the task to Commissioner Tuason, head of Comelec’s Legal Department. That task was the appreciation
and evaluation of the legal effects and consequences of the terms, conditions, stipulations and covenants contained
in any joint venture agreement, consortium agreement or a similar document -- assuming of course that any of these
was available at the time. The fact that Commissioner Tuason was barely aware of the situation bespeaks the
complete absence of such document, or the utter failure or neglect of the Comelec to examine it -- assuming it was
available at all -- at the time the award was made on April 15, 2003.

In any event, the Court notes for the record that Commissioner Tuason basically contradicted his statements in open
court about there being one written agreement among all the consortium members, when he subsequently
referred40 to the four (4) Memoranda of Agreement (MOAs) executed by them.41

At this juncture, one might ask: What, then, if there are four MOAs instead of one or none at all? Isn’t it enough that
there are these corporations coming together to carry out the automation project? Isn’t it true, as respondent aver,
that nowhere in the RFP issued by Comelec is it required that the members of the joint venture execute a single
written agreement to prove the existence of a joint venture. Indeed, the intention to be jointly and severally liable
may be evidenced not only by a single joint venture agreement, but also by supplementary documents executed by
the parties signifying such intention. What then is the big deal?

The problem is not that there are four agreements instead of only one. The problem is that Comelec never bothered
to check. It never based its decision on documents or other proof that would concretely establish the existence of
the claimed consortium or joint venture or agglomeration. It relied merely on the self-serving representation in an
uncorroborated letter signed by only one individual, claiming that his company represented a "consortium" of several
different corporations. It concluded forthwith that a consortium indeed existed, composed of such and such
members, and thereafter declared that the entity was eligible to bid.

True, copies of financial statements and incorporation papers of the alleged "consortium" members were submitted.
But these papers did not establish the existence of a consortium, as they could have been provided by the
companies concerned for purposes other than to prove that they were part of a consortium or joint venture. For
instance, the papers may have been intended to show that those companies were each qualified to be a sub-
contractor (and nothing more) in a major project. Those documents did not by themselves support the assumption
that a consortium or joint venture existed among the companies.

In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC),
its capacity to deliver on the Contract, and the members’ joint and several liability therefor, Comelec nevertheless
assumed that such consortium existed and was eligible. It then went ahead and considered the bid of MPC, to which
the Contract was eventually awarded, in gross violation of the former’s own bidding rules and procedures contained
in its RFP. Therein lies Comelec’s grave abuse of discretion.

Sufficiency of the Four Agreements

Instead of one multilateral agreement executed by, and effective and binding on, all the five "consortium members" -
- as earlier claimed by Commissioner Tuason in open court -- it turns out that what was actually executed were four
(4) separate and distinct bilateral Agreements.42 Obviously, Comelec was furnished copies of these Agreements
only after the bidding process had been terminated, as these were not included in the Eligibility Documents. These
Agreements are as follows:
· A Memorandum of Agreement between MPEI and SK C&C

· A Memorandum of Agreement between MPEI and WeSolv

· A "Teaming Agreement" between MPEI and Election.com Ltd.

· A "Teaming Agreement" between MPEI and ePLDT

In sum, each of the four different and separate bilateral Agreements is valid and binding only between MPEI and the
other contracting party, leaving the other "consortium" members total strangers thereto. Under this setup, MPEI
dealt separately with each of the "members," and the latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn
had nothing to do with one another, each dealing only with MPEI.

Respondents assert that these four Agreements were sufficient for the purpose of enabling the corporations to still
qualify (even at that late stage) as a consortium or joint venture, since the first two Agreements had allegedly set
forth the joint and several undertakings among the parties, whereas the latter two clarified the parties’ respective
roles with regard to the Project, with MPEI being the independent contractor and Election.com and ePLDT the
subcontractors.

Additionally, the use of the phrase "particular contract" in the Comelec’s Request for Proposal (RFP), in connection
with the joint and several liabilities of companies in a joint venture, is taken by them to mean that all the members of
the joint venture need not be solidarily liable for the entire project or joint venture, because it is sufficient that the
lead company and the member in charge of a particular contract or aspect of the joint venture agree to be solidarily
liable.

At this point, it must be stressed most vigorously that the submission of the four bilateral Agreements to Comelec
after the end of the bidding process did nothing to eliminate the grave abuse of discretion it had already committed
on April 15, 2003.

Deficiencies Have Not Been "Cured"

In any event, it is also claimed that the automation Contract awarded by Comelec incorporates all documents
executed by the "consortium" members, even if these documents are not referred to therein. The basis of this
assertion appears to be the passages from Section 1.4 of the Contract, which is reproduced as follows:

"All Contract Documents shall form part of the Contract even if they or any one of them is not referred to or
mentioned in the Contract as forming a part thereof. Each of the Contract Documents shall be mutually
complementary and explanatory of each other such that what is noted in one although not shown in the other shall
be considered contained in all, and what is required by any one shall be as binding as if required by all, unless one
item is a correction of the other.

"The intent of the Contract Documents is the proper, satisfactory and timely execution and completion of the Project,
in accordance with the Contract Documents. Consequently, all items necessary for the proper and timely execution
and completion of the Project shall be deemed included in the Contract."

Thus, it is argued that whatever perceived deficiencies there were in the supplementary contracts -- those entered
into by MPEI and the other members of the "consortium" as regards their joint and several undertakings -- have
been cured. Better still, such deficiencies have supposedly been prevented from arising as a result of the above-
quoted provisions, from which it can be immediately established that each of the members of MPC assumes the
same joint and several liability as the other members.

The foregoing argument is unpersuasive. First, the contract being referred to, entitled "The Automated Counting and
Canvassing Project Contract," is between Comelec and MPEI, not the alleged consortium, MPC. To repeat, it is
MPEI -- not MPC -- that is a party to the Contract. Nowhere in that Contract is there any mention of a consortium or
joint venture, of members thereof, much less of joint and several liability. Supposedly executed sometime in May
2003,43 the Contract bears a notarization date of June 30, 2003, and contains the signature of Willy U. Yu signing as
president of MPEI (not for and on behalf of MPC), along with that of the Comelec chair. It provides in Section 3.2
that MPEI (not MPC) is to supply the Equipment and perform the Services under the Contract, in accordance with
the appendices thereof; nothing whatsoever is said about any consortium or joint venture or partnership.

Second, the portions of Section 1.4 of the Contract reproduced above do not have the effect of curing (much less
preventing) deficiencies in the bilateral agreements entered into by MPEI with the other members of the
"consortium," with respect to their joint and several liabilities. The term "Contract Documents," as used in the quoted
passages of Section 1.4, has a well-defined meaning and actually refers only to the following documents:

· The Contract itself along with its appendices

· The Request for Proposal (also known as "Terms of Reference") issued by the Comelec, including the Tender
Inquiries and Bid Bulletins

· The Tender Proposal submitted by MPEI

In other words, the term "Contract Documents" cannot be understood as referring to or including the MOAs and the
Teaming Agreements entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT. This much is very
clear and admits of no debate. The attempt to use the provisions of Section 1.4 to shore up the MOAs and the
Teaming Agreements is simply unwarranted.

Third and last, we fail to see how respondents can arrive at the conclusion that, from the above-quoted provisions, it
can be immediately established that each of the members of MPC assumes the same joint and several liability as
the other members. Earlier, respondents claimed exactly the opposite -- that the two MOAs (between MPEI and SK
C&C, and between MPEI and WeSolv) had set forth the joint and several undertakings among the parties; whereas
the two Teaming Agreements clarified the parties’ respective roles with regard to the Project, with MPEI being the
independent contractor and Election.com and ePLDT the subcontractors.

Obviously, given the differences in their relationships, their respective liabilities cannot be the same. Precisely, the
very clear terms and stipulations contained in the MOAs and the Teaming Agreements -- entered into by MPEI with
SK C&C, WeSolv, Election.com and ePLDT -- negate the idea that these "members" are on a par with one another
and are, as such, assuming the same joint and several liability.

Moreover, respondents have earlier seized upon the use of the term "particular contract" in the Comelec’s Request
for Proposal (RFP), in order to argue that all the members of the joint venture did not need to be solidarily liable for
the entire project or joint venture. It was sufficient that the lead company and the member in charge of a particular
contract or aspect of the joint venture would agree to be solidarily liable. The glaring lack of consistency leaves us at
a loss. Are respondents trying to establish the same joint and solidary liability among all the "members" or not?

Enforcement of Liabilities Problematic

Next, it is also maintained that the automation Contract between Comelec and the MPEI confirms the solidary
undertaking of the lead company and the consortium member concerned for each particular Contract, inasmuch as
the position of MPEI and anyone else performing the services contemplated under the Contract is described therein
as that of an independent contractor.

The Court does not see, however, how this conclusion was arrived at. In the first place, the contractual provision
being relied upon by respondents is Article 14, "Independent Contractors," which states: "Nothing contained herein
shall be construed as establishing or creating between the COMELEC and MEGA the relationship of employee and
employer or principal and agent, it being understood that the position of MEGA and of anyone performing the
Services contemplated under this Contract, is that of an independent contractor."

Obviously, the intent behind the provision was simply to avoid the creation of an employer-employee or a principal-
agent relationship and the complications that it would produce. Hence, the Article states that the role or position of
MPEI, or anyone else performing on its behalf, is that of an independent contractor. It is obvious to the Court that
respondents are stretching matters too far when they claim that, because of this provision, the Contract in effect
confirms the solidary undertaking of the lead company and the consortium member concerned for the particular
phase of the project. This assertion is an absolute non sequitur.

Enforcement of Liabilities Under the Civil Code Not Possible

In any event, it is claimed that Comelec may still enforce the liability of the "consortium" members under the Civil
Code provisions on partnership, reasoning that MPEI et al. represented themselves as partners and members of
MPC for purposes of bidding for the Project. They are, therefore, liable to the Comelec to the extent that the latter
relied upon such representation. Their liability as partners is solidary with respect to everything chargeable to the
partnership under certain conditions.

The Court has two points to make with respect to this argument. First, it must be recalled that SK C&C, WeSolv,
Election.com and ePLDT never represented themselves as partners and members of MPC, whether for purposes of
bidding or for something else. It was MPEI alone that represented them to be members of a "consortium" it
supposedly headed. Thus, its acts may not necessarily be held against the other "members."

Second, this argument of the OSG in its Memorandum44 might possibly apply in the absence of a joint venture
agreement or some other writing that discloses the relationship of the "members" with one another. But precisely,
this case does not deal with a situation in which there is nothing in writing to serve as reference, leaving Comelec to
rely on mere representations and therefore justifying a falling back on the rules on partnership. For, again, the terms
and stipulations of the MOAs entered into by MPEI with SK C&C and WeSolv, as well as the Teaming Agreements
of MPEI with Election.com and ePLDT (copies of which have been furnished the Comelec) are very clear with
respect to the extent and the limitations of the firms’ respective liabilities.

In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint and several with MPEI, are
limited only to the particular areas of work wherein their services are engaged or their products utilized. As for
Election.com and ePLDT, their separate "Teaming Agreements" specifically ascribe to them the role of
subcontractor vis-à-vis MPEI as contractor and, based on the terms of their particular agreements, neither
Election.com nor ePLDT is, with MPEI, jointly and severally liable to Comelec.45 It follows then that in the instant
case, there is no justification for anyone, much less Comelec, to resort to the rules on partnership and partners’
liabilities.

Eligibility of a Consortium Based on the Collective Qualifications of Its Members

Respondents declare that, for purposes of assessing the eligibility of the bidder, the members of MPC should be
evaluated on a collective basis. Therefore, they contend, the failure of MPEI to submit financial statements (on
account of its recent incorporation) should not by itself disqualify MPC, since the other members of the "consortium"
could meet the criteria set out in the RFP.

Thus, according to respondents, the collective nature of the undertaking of the members of MPC, their contribution
of assets and sharing of risks, and the community of their interest in the performance of the Contract lead to these
reasonable conclusions: (1) that their collective qualifications should be the basis for evaluating their eligibility; (2)
that the sheer enormity of the project renders it improbable to expect any single entity to be able to comply with all
the eligibility requirements and undertake the project by itself; and (3) that, as argued by the OSG, the RFP allows
bids from manufacturers, suppliers and/or distributors that have formed themselves into a joint venture, in
recognition of the virtual impossibility of a single entity’s ability to respond to the Invitation to Bid.

Additionally, argues the Comelec, the Implementing Rules and Regulations of RA 6957 (the Build-Operate-Transfer
Law) as amended by RA 7718 would be applicable, as proponents of BOT projects usually form joint ventures or
consortiums. Under the IRR, a joint venture/consortium proponent shall be evaluated based on the individual or the
collective experience of the member-firms of the joint venture/consortium and of the contractors the proponent has
engaged for the project.

Unfortunately, this argument seems to assume that the "collective" nature of the undertaking of the members of
MPC, their contribution of assets and sharing of risks, and the "community" of their interest in the performance of the
Contract entitle MPC to be treated as a joint venture or consortium; and to be evaluated accordingly on the basis of
the members’ collective qualifications when, in fact, the evidence before the Court suggest otherwise.

This Court in Kilosbayan v. Guingona46 defined joint venture as "an association of persons or companies jointly
undertaking some commercial enterprise; generally, all contribute assets and share risks. It requires a community of
interest in the performance of the subject matter, a right to direct and govern the policy in connection therewith, and
[a] duty, which may be altered by agreement to share both in profit and losses."

Going back to the instant case, it should be recalled that the automation Contract with Comelec was not executed
by the "consortium" MPC -- or by MPEI for and on behalf of MPC -- but by MPEI, period. The said Contract contains
no mention whatsoever of any consortium or members thereof. This fact alone seems to contradict all the
suppositions about a joint undertaking that would normally apply to a joint venture or consortium: that it is a
commercial enterprise involving a community of interest, a sharing of risks, profits and losses, and so on.

Now let us consider the four bilateral Agreements, starting with the Memorandum of Agreement between MPEI and
WeSolv Open Computing, Inc., dated March 5, 2003. The body of the MOA consists of just seven (7) short
paragraphs that would easily fit in one page! It reads as follows:

"1. The parties agree to cooperate in successfully implementing the Project in the substance and form as may be
most beneficial to both parties and other subcontractors involved in the Project.

"2. Mega Pacific shall be responsible for any contract negotiations and signing with the COMELEC and, subject to
the latter’s approval, agrees to give WeSolv an opportunity to be present at meetings with the COMELEC
concerning WeSolv’s portion of the Project.

"3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular products and/or services
supplied by the former for the Project.

"4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by
the parties.

"5. The parties undertake to do all acts and such other things incidental to, necessary or desirable or the attainment
of the objectives and purposes of this Agreement.

"6. In the event that the parties fail to agree on the terms and conditions of the supply of the products and services
including but not limited to the scope of the products and services to be supplied and payment terms, WeSolv shall
cease to be bound by its obligations stated in the aforementioned paragraphs.

"7. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the
parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the
existing laws of the Republic of the Philippines." (Underscoring supplied.)

Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co. Ltd., dated March 9, 2003, the
body of which consists of only six (6) paragraphs, which we quote:

"1. All parties agree to cooperate in achieving the Consortium’s objective of successfully implementing the Project in
the substance and form as may be most beneficial to the Consortium members and in accordance w/ the demand of
the RFP.

"2. Mega Pacific shall have full powers and authority to represent the Consortium with the Comelec, and to enter
and sign, for and in behalf of its members any and all agreement/s which maybe required in the implementation of
the Project.
"3. Each of the individual members of the Consortium shall be jointly and severally liable with the Lead Firm for the
particular products and/or services supplied by such individual member for the project, in accordance with their
respective undertaking or sphere of responsibility.

"4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by
the parties.

"5. The parties undertake to do all acts and such other things incidental to, necessary or desirable for the attainment
of the objectives and purposes of this Agreement.

"6. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the
parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the
existing laws of the Republic of the Philippines." (Underscoring supplied.)

It will be noted that the two Agreements quoted above are very similar in wording. Neither of them contains any
specifics or details as to the exact nature and scope of the parties’ respective undertakings, performances and
deliverables under the Agreement with respect to the automation project. Likewise, the two Agreements are quite
bereft of pesos-and-centavos data as to the amount of investments each party contributes, its respective share in
the revenues and/or profit from the Contract with Comelec, and so forth -- all of which are normal for agreements of
this nature. Yet, according to public and private respondents, the participation of MPEI, WeSolv and SK C&C
comprises fully 90 percent of the entire undertaking with respect to the election automation project, which is worth
about P1.3 billion.

As for Election.com and ePLDT, the separate "Teaming Agreements" they entered into with MPEI for the remaining
10 percent of the entire project undertaking are ironically much longer and more detailed than the MOAs discussed
earlier. Although specifically ascribing to them the role of subcontractor vis-à-vis MPEI as contractor, these
Agreements are, however, completely devoid of any pricing data or payment terms. Even the appended Schedules
supposedly containing prices of goods and services are shorn of any price data. Again, as mentioned earlier, based
on the terms of their particular Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly and severally
liable to Comelec.

It is difficult to imagine how these bare Agreements -- especially the first two -- could be implemented in practice;
and how a dispute between the parties or a claim by Comelec against them, for instance, could be resolved without
lengthy and debilitating litigations. Absent any clear-cut statement as to the exact nature and scope of the parties’
respective undertakings, commitments, deliverables and covenants, one party or another can easily dodge its
obligation and deny or contest its liability under the Agreement; or claim that it is the other party that should have
delivered but failed to.

Likewise, in the absence of definite indicators as to the amount of investments to be contributed by each party,
disbursements for expenses, the parties’ respective shares in the profits and the like, it seems to the Court that this
situation could readily give rise to all kinds of misunderstandings and disagreements over money matters.

Under such a scenario, it will be extremely difficult for Comelec to enforce the supposed joint and several liabilities
of the members of the "consortium." The Court is not even mentioning the possibility of a situation arising from a
failure of WeSolv and MPEI to agree on the scope, the terms and the conditions for the supply of the products and
services under the Agreement. In that situation, by virtue of paragraph 6 of its MOA, WeSolv would perforce cease
to be bound by its obligations -- including its joint and solidary liability with MPEI under the MOA -- and could
forthwith disengage from the project. Effectively, WeSolv could at any time unilaterally exit from its MOA with MPEI
by simply failing to agree. Where would that outcome leave MPEI and Comelec?

To the Court, this strange and beguiling arrangement of MPEI with the other companies does not qualify them to be
treated as a consortium or joint venture, at least of the type that government agencies like the Comelec should be
dealing with. With more reason is it unable to agree to the proposal to evaluate the members of MPC on a collective
basis.

In any event, the MPC members claim to be a joint venture/consortium; and respondents have consistently been
arguing that the IRR for RA 6957, as amended, should be applied to the instant case in order to allow a collective
evaluation of consortium members. Surprisingly, considering these facts, respondents have not deemed it
necessary for MPC members to comply with Section 5.4 (a) (iii) of the IRR for RA 6957 as amended.

According to the aforementioned provision, if the project proponent is a joint venture or consortium, the members or
participants thereof are required to submit a sworn statement that, if awarded the contract, they shall bind
themselves to be jointly, severally and solidarily liable for the project proponent’s obligations thereunder. This
provision was supposed to mirror Section 5 of RA 6957, as amended, which states: "In all cases, a consortium that
participates in a bid must present proof that the members of the consortium have bound themselves jointly and
severally to assume responsibility for any project. The withdrawal of any member of the consortium prior to the
implementation of the project could be a ground for the cancellation of the contract." The Court has certainly not
seen any joint and several undertaking by the MPC members that even approximates the tenor of that which is
described above. We fail to see why respondents should invoke the IRR if it is for their benefit, but refuse to comply
with it otherwise.

B.
DOST Technical Tests Flunked by the Automated Counting Machines

Let us now move to the second subtopic, which deals with the substantive issue: the ACM’s failure to pass the tests
of the Department of Science and Technology (DOST).

After respondent "consortium" and the other bidder, TIM, had submitted their respective bids on March 10, 2003, the
Comelec’s BAC -- through its Technical Working Group (TWG) and the DOST -- evaluated their technical proposals.
Requirements that were highly technical in nature and that required the use of certain equipment in the evaluation
process were referred to the DOST for testing. The Department reported thus:

TEST RESULTS MATRIX47

Technical Evaluation of Automated Counting Machine

MEGA-PACIFIC TOTAL INFORMATION

KEY REQUIREMENTS CONSORTIUM MANAGEMENT
QUESTIONS
YES NO YES NO

1. Does the machine have an accuracy rating of at least √ √

99.995 percent

At COLD environmental condition √ √

At NORMAL environmental conditions √ √

At HARSH environmental conditions

2. Accurately records and reports the date and time of the √ √

start and end of counting of ballots per precinct?

3. Prints election returns without any loss of date during √ √

generation of such reports?

4. Uninterruptible back-up power system, that will engage

immediately to allow operation of at least 10 minutes after √ √
outage, power surge or abnormal electrical occurrences?

5. Machine reads two-sided ballots in one pass? √ √

Note: This
particular
requirement needs
further verification

6. Machine can detect previously counted ballots and √ √

prevent previously counted ballots from being counted more
than once?

7. Stores results of counted votes by precinct in external √ √

(removable) storage device?
Note: This
particular
requirement needs
further verification

8. Data stored in external media is encrypted? √ √

Note: This
particular
requirement needs
 further verification

9. Physical key or similar device allows, limits, or restricts √ √

operation of the machine?

10. CPU speed is at least 400mHz? √ √

Note: This
particular
requirement needs
further verification

11. Port to allow use of dot-matrix printers? √ √

12. Generates printouts of the election returns in a format

specified by the COMELEC?

Generates printouts √ √

In format specified by COMELEC √ √

13. Prints election returns without any loss of data during √ √

generation of such report?

14. Generates an audit trail of the counting machine, both

hard copy and soft copy?

Hard copy √ √

Soft copy √ √

Note: This
particular
requirement needs
further verification

15. Does the City/Municipal Canvassing System consolidate √ √

results from all precincts within it using the encrypted soft
copy of the data generated by the counting machine and Note: This
stored on the removable data storage device? particular
requirement needs
further verification

16. Does the City/Municipal Canvassing System consolidate √ √

results from all precincts within it using the encrypted soft
copy of the data generated by the counting machine and Note: This Note: This
transmitted through an electronic transmission media? particular particular
requirement needs requirement needs
further verification further verification

17. Does the system output a Zero City/Municipal Canvass √ √

Report, which is printed on election day prior to the conduct
of the actual canvass operation, that shows that all totals for Note: This
all the votes for all the candidates and other information, are particular
indeed zero or null? requirement needs
further verification

18. Does the system consolidate results from all precincts in √ √

the city/municipality using the data storage device coming
from the counting machine? Note: This
particular
requirement needs
 further verification

19. Is the machine 100% accurate? √ √

Note: This
particular
requirement needs
further verification

20. Is the Program able to detect previously downloaded √ √

precinct results and prevent these from being inputted again
into the System? Note: This
particular
requirement needs
further verification

21. The System is able to print the specified reports and the
audit trail without any loss of data during generation of the
above-mentioned reports?

Prints specified reports √ √

Audit Trail √ √

22. Can the result of the city/municipal consolidation be √ √

stored in a data storage device?
Note: This
particular
requirement needs
further verification

23. Does the system consolidate results from all precincts in √ √

the provincial/district/ national using the data storage device
from different levels of consolidation? Note: This
particular
requirement needs
further verification

24. Is the system 100% accurate? √ √

Note: This
particular
requirement needs
further verification

25. Is the Program able to detect previously downloaded √ √

precinct results and prevent these from being inputted again
into the System? Note: This
particular
requirement needs
further verification

26. The System is able to print the specified reports and the
audit trail without any loss of data during generation of the
abovementioned reports?

Prints specified reports √ √

Audit Trail √ √

Note: This
particular
requirement needs
further verification
27. Can the results of the provincial/district/national √ √
consolidation be stored in a data storage device?
Note: This
particular
requirement needs
further verification

According to respondents, it was only after the TWG and the DOST had conducted their separate tests and
submitted their respective reports that the BAC, on the basis of these reports formulated its
comments/recommendations on the bids of the consortium and TIM.

The BAC, in its Report dated April 21, 2003, recommended that the Phase II project involving the acquisition of
automated counting machines be awarded to MPEI. It said:

"After incisive analysis of the technical reports of the DOST and the Technical Working Group for Phase II –
Automated Counting Machine, the BAC considers adaptability to advances in modern technology to ensure an
effective and efficient method, as well as the security and integrity of the system.

"The results of the evaluation conducted by the TWG and that of the DOST (14 April 2003 report), would show the
apparent advantage of Mega-Pacific over the other competitor, TIM.

"The BAC further noted that both Mega-Pacific and TIM obtained some ‘failed marks’ in the technical evaluation. In
general, the ‘failed marks’ of Total Information Management as enumerated above affect the counting machine itself
which are material in nature, constituting non-compliance to the RFP. On the other hand, the ‘failed marks’ of Mega-
Pacific are mere formalities on certain documentary requirements which the BAC may waive as clearly indicated in
the Invitation to Bid.

"In the DOST test, TIM obtained 12 failed marks and mostly attributed to the counting machine itself as stated
earlier. These are requirements of the RFP and therefore the BAC cannot disregard the same.

"Mega-Pacific failed in 8 items however these are mostly on the software which can be corrected by reprogramming
the software and therefore can be readily corrected.

"The BAC verbally inquired from DOST on the status of the retest of the counting machines of the TIM and was
informed that the report will be forthcoming after the holy week. The BAC was informed that the retest is on a
different parameters they’re being two different machines being tested. One purposely to test if previously read
ballots will be read again and the other for the other features such as two sided ballots.

"The said machine and the software therefore may not be considered the same machine and program as submitted
in the Technical proposal and therefore may be considered an enhancement of the original proposal.

"Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by Executive Director Ronaldo T. Viloria of
DOST is that the result of the test in the two counting machines of TIM contains substantial errors that may lead to
the failure of these machines based on the specific items of the RFP that DOST has to certify.

OPENING OF FINANCIAL BIDS

"The BAC on 15 April 2003, after notifying the concerned bidders opened the financial bids in their presence and the
results were as follows:

Mega-Pacific:

Option 1 – Outright purchase: Bid Price if Php1,248,949,088.00

Option 2 – Lease option:

70% Down payment of cost of hardware or Php642,755,757.07

Remainder payable over 50 months or a total of Php642,755,757.07

Discount rate of 15% p.a. or 1.2532% per month.

Total Number of Automated Counting Machine – 1,769 ACMs (Nationwide)

TIM:

Total Bid Price – Php1,297,860,560.00

Total Number of Automated Counting Machine – 2,272 ACMs (Mindanao and NCR only)

"Premises considered, it appears that the bid of Mega Pacific is the lowest calculated responsive bid, and therefore,
the Bids and Awards Committee (BAC) recommends that the Phase II project re Automated Counting Machine be
awarded to Mega Pacific eSolutions, Inc."48
The BAC, however, also stated on page 4 of its Report: "Based on the 14 April 2003 report (Table 6) of the DOST, it
appears that both Mega-Pacific and TIM (Total Information Management Corporation) failed to meet some of the
requirements. Below is a comparative presentation of the requirements wherein Mega-Pacific or TIM or both of them
failed: x x x." What followed was a list of "key requirements," referring to technical requirements, and an indication of
which of the two bidders had failed to meet them.

Failure to Meet the Required Accuracy Rating

The first of the key requirements was that the counting machines were to have an accuracy rating of at least
99.9995 percent. The BAC Report indicates that both Mega Pacific and TIM failed to meet this standard.

The key requirement of accuracy rating happens to be part and parcel of the Comelec’s Request for Proposal
(RFP). The RFP, on page 26, even states that the ballot counting machines and ballot counting software "must have
an accuracy rating of 99.9995% (not merely 99.995%) or better as certified by a reliable independent testing
agency."

When questioned on this matter during the Oral Argument, Commissioner Borra tried to wash his hands by claiming
that the required accuracy rating of 99.9995 percent had been set by a private sector group in tandem with
Comelec. He added that the Commission had merely adopted the accuracy rating as part of the group’s
recommended bid requirements, which it had not bothered to amend even after being advised by DOST that such
standard was unachievable. This excuse, however, does not in any way lessen Comelec’s responsibility to adhere
to its own published bidding rules, as well as to see to it that the consortium indeed meets the accuracy
standard. Whichever accuracy rating is the right standard -- whether 99.995 or 99.9995 percent -- the fact remains
that the machines of the so-called "consortium" failed to even reach the lesser of the two. On this basis alone, it
ought to have been disqualified and its bid rejected outright.

At this point, the Court stresses that the essence of public bidding is violated by the practice of requiring very high
standards or unrealistic specifications that cannot be met -- like the 99.9995 percent accuracy rating in this case --
only to water them down after the bid has been award. Such scheme, which discourages the entry of prospective
bona fide bidders, is in fact a sure indication of fraud in the bidding, designed to eliminate fair competition. Certainly,
if no bidder meets the mandatory requirements, standards or specifications, then no award should be made and a
failed bidding declared.

Failure of Software to Detect Previously Downloaded Data

Furthermore, on page 6 of the BAC Report, it appears that the "consortium" as well as TIM failed to meet another
key requirement -- for the counting machine’s software program to be able to detect previously downloaded
precinct results and to prevent these from being entered again into the counting machine. This same
deficiency on the part of both bidders reappears on page 7 of the BAC Report, as a result of the recurrence of their
failure to meet the said key requirement.

That the ability to detect previously downloaded data at different canvassing or consolidation levels is deemed of
utmost importance can be seen from the fact that it is repeated three times in the RFP. On page 30 thereof, we find
the requirement that the city/municipal canvassing system software must be able to detect previously downloaded
precinct results and prevent these from being "inputted" again into the system. Again, on page 32 of the RFP, we
read that the provincial/district canvassing system software must be able to detect previously downloaded
city/municipal results and prevent these from being "inputted" again into the system. And once more, on page 35 of
the RFP, we find the requirement that the national canvassing system software must be able to detect previously
downloaded provincial/district results and prevent these from being "inputted" again into the system.

Once again, though, Comelec chose to ignore this crucial deficiency, which should have been a cause for the
gravest concern. Come May 2004, unscrupulous persons may take advantage of and exploit such deficiency by
repeatedly downloading and feeding into the computers results favorable to a particular candidate or
candidates. We are thus confronted with the grim prospect of election fraud on a massive scale by means of
just a few key strokes. The marvels and woes of the electronic age!

Inability to Print the Audit Trail

But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that the ACMs of both bidders
were unable to print the audit trail without any loss of data. In the case of MPC, the audit trail system was "not yet
incorporated" into its ACMs.

This particular deficiency is significant, not only to this bidding but to the cause of free and credible elections. The
purpose of requiring audit trails is to enable Comelec to trace and verify the identities of the ACM operators
responsible for data entry and downloading, as well as the times when the various data were downloaded into the
canvassing system, in order to forestall fraud and to identify the perpetrators.

Thus, the RFP on page 27 states that the ballot counting machines and ballot counting software must print an audit
trail of all machine operations for documentation and verification purposes. Furthermore, the audit trail must be
stored on the internal storage device and be available on demand for future printing and verifying. On pages 30-31,
the RFP also requires that the city/municipal canvassing system software be able to print an audit trail of the
canvassing operations, including therein such data as the date and time the canvassing program was started, the
log-in of the authorized users (the identity of the machine operators), the date and time the canvass data were
downloaded into the canvassing system, and so on and so forth. On page 33 of the RFP, we find the same audit
trail requirement with respect to the provincial/district canvassing system software; and again on pages 35-36
thereof, the same audit trail requirement with respect to the national canvassing system software.

That this requirement for printing audit trails is not to be lightly brushed aside by the BAC or Comelec itself as a
mere formality or technicality can be readily gleaned from the provisions of Section 7 of RA 8436, which authorizes
the Commission to use an automated system for elections.

The said provision which respondents have quoted several times, provides that ACMs are to possess certain
features divided into two classes: those that the statute itself considers mandatory and other features or capabilities
that the law deems optional. Among those considered mandatory are "provisions for audit trails"! Section 7 reads as
follows: "The System shall contain the following features: (a) use of appropriate ballots; (b) stand-alone machine
which can count votes and an automated system which can consolidate the results immediately; (c) with
provisions for audit trails; (d) minimum human intervention; and (e) adequate safeguard/security measures."
(Italics and emphases supplied.)

In brief, respondents cannot deny that the provision requiring audit trails is indeed mandatory, considering the
wording of Section 7 of RA 8436. Neither can Respondent Comelec deny that it has relied on the BAC Report,
which indicates that the machines or the software was deficient in that respect. And yet, the Commission simply
disregarded this shortcoming and awarded the Contract to private respondent, thereby violating the very law it was
supposed to implement.

C.

Inadequacy of Post Facto Remedial Measures

Respondents argue that the deficiencies relating to the detection of previously downloaded data, as well as
provisions for audit trails, are mere shortcomings or minor deficiencies in software or programming, which can be
rectified. Perhaps Comelec simply relied upon the BAC Report, which states on page 8 thereof that "Mega Pacific
failed in 8 items[;] however these are mostly on the software which can be corrected by re-programming x x x and
therefore can be readily corrected."

The undersigned ponente’s questions, some of which were addressed to Commissioner Borra during the Oral
Argument, remain unanswered to this day. First of all, who made the determination that the eight "fail" marks of
Mega Pacific were on account of the software -- was it DOST or TWG? How can we be sure these failures were not
the results of machine defects? How was it determined that the software could actually be re-programmed and
thereby rectified? Did a qualified technical expert read and analyze the source code49 for the programs and
conclude that these could be saved and remedied? (Such determination cannot be done by any other means save
by the examination and analysis of the source code.)

Who was this qualified technical expert? When did he carry out the study? Did he prepare a written report on his
findings? Or did the Comelec just make a wild guess? It does not follow that all defects in software programs can be
rectified, and the programs saved. In the information technology sector, it is common knowledge that there are many
badly written programs, with significant programming errors written into them; hence it does not make economic
sense to try to correct the programs; instead, programmers simply abandon them and just start from scratch.
There’s no telling if any of these programs is unrectifiable, unless a qualified programmer reads the source code.

And if indeed a qualified expert reviewed the source code, did he also determine how much work would be needed
to rectify the programs? And how much time and money would be spent for that effort? Who would carry out the
work? After the rectification process, who would ascertain and how would it be ascertained that the programs have
indeed been properly rectified, and that they would work properly thereafter? And of course, the most important
question to ask: could the rectification be done in time for the elections in 2004?

Clearly, none of the respondents bothered to think the matter through. Comelec simply took the word of the BAC as
gospel truth, without even bothering to inquire from DOST whether it was true that the deficiencies noted could
possibly be remedied by re-programming the software. Apparently, Comelec did not care about the software, but
focused only on purchasing the machines.

What really adds to the Court’s dismay is the admission made by Commissioner Borra during the Oral Argument
that the software currently being used by Comelec was merely the "demo" version, inasmuch as the final version
that would actually be used in the elections was still being developed and had not yet been finalized.

It is not clear when the final version of the software would be ready for testing and deployment. It seems to the Court
that Comelec is just keeping its fingers crossed and hoping the final product would work. Is there a "Plan B" in case
it does not? Who knows? But all these software programs are part and parcel of the bidding and the Contract
awarded to the Consortium. Why is it that the machines are already being brought in and paid for, when there is as
yet no way of knowing if the final version of the software would be able to run them properly, as well as canvass and
consolidate the results in the manner required?

The counting machines, as well as the canvassing system, will never work properly without the correct software
programs. There is an old adage that is still valid to this day: "Garbage in, garbage out." No matter how powerful,
advanced and sophisticated the computers and the servers are, if the software being utilized is defective or has
been compromised, the results will be no better than garbage. And to think that what is at stake here is the 2004
national elections -- the very basis of our democratic life.

Correction of Defects?

To their Memorandum, public respondents proudly appended 19 Certifications issued by DOST declaring that some
285 counting machines had been tested and had passed the acceptance testing conducted by the Department on
October 8-18, 2003. Among those tested were some machines that had failed previous tests, but had undergone
adjustments and thus passed re-testing.

Unfortunately, the Certifications from DOST fail to divulge in what manner and by what standards or criteria the
condition, performance and/or readiness of the machines were re-evaluated and re-appraised and thereafter given
the passing mark. Apart from that fact, the remedial efforts of respondents were, not surprisingly, apparently focused
again on the machines -- the hardware. Nothing was said or done about the software -- the deficiencies as to
detection and prevention of downloading and entering previously downloaded data, as well as the capability to print
an audit trail. No matter how many times the machines were tested and re-tested, if nothing was done about the
programming defects and deficiencies, the same danger of massive electoral fraud remains. As anyone who has a
modicum of knowledge of computers would say, "That’s elementary!"

And only last December 5, 2003, an Inq7.net news report quoted the Comelec chair as saying that the new
automated poll system would be used nationwide in May 2004, even as the software for the system remained
unfinished. It also reported that a certain Titus Manuel of the Philippine Computer Society, which was helping
Comelec test the hardware and software, said that the software for the counting still had to be submitted on
December 15, while the software for the canvassing was due in early January.

Even as Comelec continues making payments for the ACMs, we keep asking ourselves: who is going to ensure that
the software would be tested and would work properly?

At any rate, the re-testing of the machines and/or the 100 percent testing of all machines (testing of every single
unit) would not serve to eradicate the grave abuse of discretion already committed by Comelec when it awarded the
Contract on April 15, 2003, despite the obvious and admitted flaws in the bidding process, the failure of the "winning
bidder" to qualify, and the inability of the ACMs and the intended software to meet the bid requirements and rules.

Comelec’s Latest "Assurances" Are Unpersuasive

Even the latest pleadings filed by Comelec do not serve to allay our apprehensions. They merely affirm and
compound the serious violations of law and gravely abusive acts it has committed. Let us examine them.

The Resolution issued by this Court on December 9, 2003 required respondents to inform it as to the number of
ACMs delivered and paid for, as well as the total payment made to date for the purchase thereof. They were
likewise instructed to submit a certification from the DOST attesting to the number of ACMs tested, the number
found to be defective; and "whether the reprogrammed software has been tested and found to have complied with
the requirements under Republic Act No. 8436."50

In its "Partial Compliance and Manifestation" dated December 29, 2003, Comelec informed the Court that 1,991
ACMs had already been delivered to the Commission as of that date. It further certified that it had already paid the
supplier the sum of P849,167,697.41, which corresponded to 1,973 ACM units that had passed the acceptance
testing procedures conducted by the MIRDC-DOST51 and which had therefore been accepted by the poll body.

In the same submission, for the very first time, Comelec also disclosed to the Court the following:

"The Automated Counting and Canvassing Project involves not only the manufacturing of the ACM hardware but
also the development of three (3) types of software, which are intended for use in the following:

1. Evaluation of Technical Bids

2. Testing and Acceptance Procedures

3. Election Day Use."

Purchase of the First Type of Software Without Evaluation

In other words, the first type of software was to be developed solely for the purpose of enabling the evaluation of the
bidder’s technical bid. Comelec explained thus: "In addition to the presentation of the ACM hardware, the bidders
were required to develop a ‘base’ software program that will enable the ACM to function properly. Since the software
program utilized during the evaluation of bids is not the actual software program to be employed on election day,
there being two (2) other types of software program that will still have to be developed and thoroughly tested prior to
actual election day use, defects in the ‘base’ software that can be readily corrected by reprogramming are
considered minor in nature, and may therefore be waived."

In short, Comelec claims that it evaluated the bids and made the decision to award the Contract to the "winning"
bidder partly on the basis of the operation of the ACMs running a "base" software. That software was therefore
nothing but a sample or "demo" software, which would not be the actual one that would be used on election day.
Keeping in mind that the Contract involves the acquisition of not just the ACMs or the hardware, but also the
software that would run them, it is now even clearer that the Contract was awarded without Comelec having seen,
much less evaluated, the final product -- the software that would finally be utilized come election day. (Not even the
"near-final" product, for that matter).

What then was the point of conducting the bidding, when the software that was the subject of the Contract was still
to be created and could conceivably undergo innumerable changes before being considered as being in final form?
And that is not all!

No Explanation for Lapses in the Second Type of Software

The second phase, allegedly involving the second type of software, is simply denominated "Testing and Acceptance
Procedures." As best as we can construe, Comelec is claiming that this second type of software is also to be
developed and delivered by the supplier in connection with the "testing and acceptance" phase of the acquisition
process. The previous pleadings, though -- including the DOST reports submitted to this Court -- have not
heretofore mentioned any statement, allegation or representation to the effect that a particular set of software was to
be developed and/or delivered by the supplier in connection with the testing and acceptance of delivered ACMs.

What the records do show is that the imported ACMs were subjected to the testing and acceptance process
conducted by the DOST. Since the initial batch delivered included a high percentage of machines that had failed the
tests, Comelec asked the DOST to conduct a 100 percent testing; that is, to test every single one of the ACMs
delivered. Among the machines tested on October 8 to 18, 2003, were some units that had failed previous tests but
had subsequently been re-tested and had passed. To repeat, however, until now, there has never been any mention
of a second set or type of software pertaining to the testing and acceptance process.

In any event, apart from making that misplaced and uncorroborated claim, Comelec in the same submission also
professes (in response to the concerns expressed by this Court) that the reprogrammed software has been
tested and found to have complied with the requirements of RA 8436. It reasoned thus: "Since the software
program is an inherent element in the automated counting system, the certification issued by the MIRDC-DOST that
one thousand nine hundred seventy-three (1,973) units passed the acceptance test procedures is an official
recognition by the MIRDC-DOST that the software component of the automated election system, which has been
reprogrammed to comply with the provisions of Republic Act No. 8436 as prescribed in the Ad Hoc Technical
Evaluation Committee’s ACM Testing and Acceptance Manual, has passed the MIRDC-DOST tests."

The facts do not support this sweeping statement of Comelec. A scrutiny of the MIRDC-DOST letter dated
December 15, 2003,52 which it relied upon, does not justify its grand conclusion. For clarity’s sake, we quote in full
the letter-certification, as follows:

"15 December 2003

"HON. RESURRECCION Z. BORRA

Commissioner-in-Charge

Phase II, Modernization Project

Commission on Elections

Intramuros, Manila

Attention: Atty. Jose M. Tolentino, Jr.

Project Director

"Dear Commissioner Borra:

"We are pleased to submit 11 DOST Test Certifications representing 11 lots and covering 158 units of automated
counting machines (ACMs) that we have tested from 02-12 December 2003.

"To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic)

1st batch - 30 units 4th batch - 438 units

2nd batch - 288 units 5th batch - 438 units

3rd batch - 414 units 6th batch - 383 units

"It should be noted that a total of 18 units have failed the test. Out of these 18 units, only one (1) unit has failed the
retest.

"Thank you and we hope you will find everything in order.

"Very truly yours,

"ROLANDO T. VILORIA, CESO III

Executive Director cum

Chairman, DOST-Technical Evaluation Committee"

Even a cursory glance at the foregoing letter shows that it is completely bereft of anything that would remotely
support Comelec’s contention that the "software component of the automated election system x x x has been
reprogrammed to comply with" RA 8436, and "has passed the MIRDC-DOST tests." There is no mention at all of
any software reprogramming. If the MIRDC-DOST had indeed undertaken the supposed reprogramming and the
process turned out to be successful, that agency would have proudly trumpeted its singular achievement.

How Comelec came to believe that such reprogramming had been undertaken is unclear. In any event, the
Commission is not forthright and candid with the factual details. If reprogramming has been done, who performed it
and when? What exactly did the process involve? How can we be assured that it was properly performed? Since the
facts attendant to the alleged reprogramming are still shrouded in mystery, the Court cannot give any weight to
Comelec’s bare allegations.

The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-DOST tests does not by itself serve
as an endorsement of the soundness of the software program, much less as a proof that it has been reprogrammed.
In the first place, nothing on record shows that the tests and re-tests conducted on the machines were intended to
address the serious deficiencies noted earlier. As a matter of fact, the MIRDC-DOST letter does not even indicate
what kinds of tests or re-tests were conducted, their exact nature and scope, and the specific objectives
thereof.53The absence of relevant supporting documents, combined with the utter vagueness of the letter, certainly
fails to inspire belief or to justify the expansive confidence displayed by Comelec. In any event, it goes without
saying that remedial measures such as the alleged reprogramming cannot in any way mitigate the grave abuse of
discretion already committed as early as April 15, 2003.

Rationale of Public Bidding Negated

by the Third Type of Software

Respondent Comelec tries to assuage this Court’s anxiety in these words: "The reprogrammed software that has
already passed the requirements of Republic Act No. 8436 during the MIRDC-DOST testing and acceptance
procedures will require further customization since the following additional elements, among other things, will have
to be considered before the final software can be used on election day: 1. Final Certified List of Candidates x x x 2.
Project of Precincts x x x 3. Official Ballot Design and Security Features x x x 4. Encryption, digital certificates and
digital signatures x x x. The certified list of candidates for national elective positions will be finalized on or before 23
January 2004 while the final list of projects of precincts will be prepared also on the same date. Once all the above
elements are incorporated in the software program, the Test Certification Group created by the Ad Hoc Technical
Evaluation Committee will conduct meticulous testing of the final software before the same can be used on election
day. In addition to the testing to be conducted by said Test Certification Group, the Comelec will conduct mock
elections in selected areas nationwide not only for purposes of public information but also to further test the final
election day program. Public respondent Comelec, therefore, requests that it be given up to 16 February 2004 to
comply with this requirement."

The foregoing passage shows the imprudent approach adopted by Comelec in the bidding and acquisition process.
The Commission says that before the software can be utilized on election day, it will require "customization" through
addition of data -- like the list of candidates, project of precincts, and so on. And inasmuch as such data will become
available only in January 2004 anyway, there is therefore no perceived need on Comelec’s part to rush the supplier
into producing the final (or near-final) version of the software before that time. In any case, Comelec argues that the
software needed for the electoral exercise can be continuously developed, tested, adjusted and perfected,
practically all the way up to election day, at the same time that the Commission is undertaking all the other distinct
and diverse activities pertinent to the elections.

Given such a frame of mind, it is no wonder that Comelec paid little attention to the counting and canvassing
software during the entire bidding process, which took place in February-March 2003. Granted that the software was
defective, could not detect and prevent the re-use of previously downloaded data or produce the audit trail -- aside
from its other shortcomings -- nevertheless, all those deficiencies could still be corrected down the road. At any rate,
the software used for bidding purposes would not be the same one that will be used on election day, so why pay any
attention to its defects? Or to the Comelec’s own bidding rules for that matter?

Clearly, such jumbled ratiocinations completely negate the rationale underlying the bidding process mandated by
law.

At the very outset, the Court has explained that Comelec flagrantly violated the public policy on public biddings (1)
by allowing MPC/MPEI to participate in the bidding even though it was not qualified to do so; and (2) by eventually
awarding the Contract to MPC/MPEI. Now, with the latest explanation given by Comelec, it is clear that the
Commission further desecrated the law on public bidding by permitting the winning bidder to change and alter the
subject of the Contract (the software), in effect allowing a substantive amendment without public bidding.

This stance is contrary to settled jurisprudence requiring the strict application of pertinent rules, regulations and
guidelines for public bidding for the purpose of placing each bidder, actual or potential, on the same footing. The
essence of public bidding is, after all, an opportunity for fair competition, and a fair basis for the precise comparison
of bids. In common parlance, public bidding aims to "level the playing field." That means each bidder must bid under
the same conditions; and be subject to the same guidelines, requirements and limitations, so that the best offer or
lowest bid may be determined, all other things being equal.

Thus, it is contrary to the very concept of public bidding to permit a variance between the conditions under which
bids are invited and those under which proposals are submitted and approved; or, as in this case, the conditions
under which the bid is won and those under which the awarded Contract will be complied with. The substantive
amendment of the contract bidded out, without any public bidding -- after the bidding process had been concluded --
is violative of the public policy on public biddings, as well as the spirit and intent of RA 8436. The whole point in
going through the public bidding exercise was completely lost. The very rationale of public bidding was totally
subverted by the Commission.

From another perspective, the Comelec approach also fails to make sense. Granted that, before election day, the
software would still have to be customized to each precinct, municipality, city, district, and so on, there still was
nothing at all to prevent Comelec from requiring prospective suppliers/bidders to produce, at the very start of the
bidding process, the "next-to-final" versions of the software (the best software the suppliers had) -- pre-tested and
ready to be customized to the final list of candidates and project of precincts, among others, and ready to be
deployed thereafter. The satisfaction of such requirement would probably have provided far better bases for
evaluation and selection, as between suppliers, than the so-called demo software.Respondents contend that the
bidding suppliers’ counting machines were previously used in at least one political exercise with no less than 20
million voters. If so, it stands to reason that the software used in that past electoral exercise would probably still be
available and, in all likelihood, could have been adopted for use in this instance. Paying for machines and software
of that category (already tried and proven in actual elections and ready to be adopted for use) would definitely make
more sense than paying the same hundreds of millions of pesos for demo software and empty promises of usable
programs in the future.

But there is still another gut-level reason why the approach taken by Comelec is reprehensible. It rides on the
perilous assumption that nothing would go wrong; and that, come election day, the Commission and the supplier
would have developed, adjusted and "re-programmed" the software to the point where the automated system could
function as envisioned. But what if such optimistic projection does not materialize? What if, despite all their
herculean efforts, the software now being hurriedly developed and tested for the automated system performs
dismally and inaccurately or, worse, is hacked and/or manipulated?54 What then will we do with all the machines
and defective software already paid for in the amount of P849 million of our tax money? Even more important, what
will happen to our country in case of failure of the automation?

The Court cannot grant the plea of Comelec that it be given until February 16, 2004 to be able to submit a
"certification relative to the additional elements of the software that will be customized," because for us to do so
would unnecessarily delay the resolution of this case and would just give the poll body an unwarranted excuse to
postpone the 2004 elections. On the other hand, because such certification will not cure the gravely abusive actions
complained of by petitioners, it will be utterly useless.

Is this Court being overly pessimistic and perhaps even engaging in speculation? Hardly. Rather, the Court holds
that Comelec should not have gambled on the unrealistic optimism that the supplier’s software development efforts
would turn out well. The Commission should have adopted a much more prudent and judicious approach to ensure
the delivery of tried and tested software, and readied alternative courses of action in case of failure. Considering that
the nation’s future is at stake here, it should have done no less.

Epilogue

Once again, the Court finds itself at the crossroads of our nation’s history. At stake in this controversy is not just the
business of a computer supplier, or a questionable proclamation by Comelec of one or more public officials. Neither
is it about whether this country should switch from the manual to the automated system of counting and canvassing
votes. At its core is the ability and capacity of the Commission on Elections to perform properly, legally and
prudently its legal mandate to implement the transition from manual to automated elections.

Unfortunately, Comelec has failed to measure up to this historic task. As stated at the start of this Decision,
Comelec has not merely gravely abused its discretion in awarding the Contract for the automation of the counting
and canvassing of the ballots. It has also put at grave risk the holding of credible and peaceful elections by shoddily
accepting electronic hardware and software that admittedly failed to pass legally mandated technical requirements.
Inadequate as they are, the remedies it proffers post facto do not cure the grave abuse of discretion it already
committed (1) on April 15, 2003, when it illegally made the award; and (2) "sometime" in May 2003 when it executed
the Contract for the purchase of defective machines and non-existent software from a non-eligible bidder.

For these reasons, the Court finds it totally unacceptable and unconscionable to place its imprimatur on this void
and illegal transaction that seriously endangers the breakdown of our electoral system. For this Court to cop-out and
to close its eyes to these illegal transactions, while convenient, would be to abandon its constitutional duty of
safeguarding public interest.

As a necessary consequence of such nullity and illegality, the purchase of the machines and all appurtenances
thereto including the still-to-be-produced (or in Comelec’s words, to be "reprogrammed") software, as well as all the
payments made therefor, have no basis whatsoever in law. The public funds expended pursuant to the void
Resolution and Contract must therefore be recovered from the payees and/or from the persons who made possible
the illegal disbursements, without prejudice to possible criminal prosecutions against them.
Furthermore, Comelec and its officials concerned must bear full responsibility for the failed bidding and award, and
held accountable for the electoral mess wrought by their grave abuse of discretion in the performance of their
functions. The State, of course, is not bound by the mistakes and illegalities of its agents and servants.

True, our country needs to transcend our slow, manual and archaic electoral process. But before it can do so, it
must first have a diligent and competent electoral agency that can properly and prudently implement a well-
conceived automated election system.

At bottom, before the country can hope to have a speedy and fraud-free automated election, it must first be able to
procure the proper computerized hardware and software legally, based on a transparent and valid system of public
bidding. As in any democratic system, the ultimate goal of automating elections must be achieved by a legal, valid
and above-board process of acquiring the necessary tools and skills therefor. Though the Philippines needs an
automated electoral process, it cannot accept just any system shoved into its bosom through improper and illegal
methods. As the saying goes, the end never justifies the means. Penumbral contracting will not produce enlightened
results.

WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL and VOID Comelec Resolution No.
6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium (MPC). Also declared null and void
is the subject Contract executed between Comelec and Mega Pacific eSolutions (MPEI). 55 Comelec is
further ORDERED to refrain from implementing any other contract or agreement entered into with regard to this
project.

Let a copy of this Decision be furnished the Office of the Ombudsman which shall determine the criminal liability, if
any, of the public officials (and conspiring private individuals, if any) involved in the subject Resolution and Contract.
Let the Office of the Solicitor General also take measures to protect the government and vindicate public interest
from the ill effects of the illegal disbursements of public funds made by reason of the void Resolution and Contract.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 125532 July 10, 1998

SECRETARY TEOFISTO GUINGONA, JR.; STATE PROSECUTORS JUDE ROMANO, LEAH ARMAMENTO,
MANUEL TORREVILLAS, JOAQUIN ESCOVAR, MENRADO CORPUS; the NATIONAL BUREAU OF
INVESTIGATION; and POTENCIANO ROQUE, petitioners,

vs.

COURT OF APPEALS and RODOLFO PINEDA, respondents.

PANGANIBAN, J.:

This case is an offshoot of the investigation conducted by the government in the last quarter of 1995, which delved
into the alleged participation of national and local officials in jueteng and other forms of illegal gambling. Although
the Court of Appeals upheld the admission into the Witness Protection Program of Potenciano A. Roque, who
claimed personal knowledge of such gambling activities, the secretary of justice nonetheless challenges the side
opinion of the appellate court that the testimony of the witness must, as a condition precedent to his admission into
said Program, be shown to be capable of substantial corroboration in its material points. The justice secretary claims
that such corroboration need not be demonstrated prior to or simultaneous with the witness' admission into the
Program, as long as such requirement can be demonstrated when he actually testifies in court. However, inasmuch
as Roque has already been admitted into the Program and has actually finished testifying, the issue presented by
petitioners has become moot. Thus, any judgment that this Court may render on the instant petition would be merely
an academic disquisition on a hypothetical problem. Until it can be shown that an actual controversy exists, courts
have no jurisdiction to render a binding decision.

The Case

This is a petition for review on certiorari to partially set aside the June 28, 1996 Decision of the Court of
Appeals, 1which disposed as follows: 2

WHEREFORE, premises considered, the petition is hereby DISMISSED for want of merit, and the injunction
issued against respondent judges from hearing the criminal actions against petitioner is hereby LIFTED.

SO ORDERED.

The Court of Appeals upheld the justice secretary's denial on January 11, 1996 of private respondent's
"Petition for Reconsideration of Admittance of Potenciano A. Roque to the Witness Protection Program."

Although Respondent Court ruled in favor of the government, herein petitioners nonetheless assail the
following portion of the said Decision:

. . . From the explicit terms of the statute, it is at once apparent that the presence of such corroborative
evidence is sine qua non to a witness' admission into the Program. Being in the nature of a condition
precedent [to] his admission into the Program, the existence of such corroborative evidence must be
shown at the time his application for admission is being evaluated.

The Antecedent Facts

Petitioners relate the antecedent facts of this case as follows: 3

Sometime in the last quarter of 1995, the National Bureau of Investigation (NBI) conducted an investigation
on the alleged participation and involvement of national and local government officials in "jueteng" and
other forms of illegal gambling.

The case was also the subject of a legislative inquiry/investigation by both the Senate and the House of
Representatives.

In November 1995, one Potenciano Roque, claiming to be an eyewitness to the networking of . . . national
and local politicians and gambling lords, sought admission into the Government's "Witness Protection,
Security and Benefit Program." Allegedly, he gained first-hand information in his capacity as Chairman of
the Task Force Anti-Gambling (TFAG) during the term of former President Corazon C. Aquino until his
resignation in 1989. He also revealed that he and members of his family were in danger of being liquidated,
facing as he did the formidable world of corruption with a well-entrenched hold on Philippine social,
political and economic systems.
After a thorough evaluation of his qualifications, convinced of his compliance with the requirements of
Republic Act No. 6981, otherwise known as the "Witness Protection, Security and Benefit Act," the
Department of Justice admitted Roque to the program, providing him a monthly allowance, temporary
shelter and personal and security protection during witness duty.

On November 30, 1995, Roque executed a sworn statement before NBI Agents Sixto M. Burgos, Jr. and
Nelson M. Bartolome, alleging that during his stint as Chairman of the Task Force Anti-Gambling (TFAG),
several gambling lords, including private respondent Rodolfo Pineda, and certain politicians offered him
money and other valuable considerations, which he accepted, upon his agreement to cease conducting
raids on their respective gambling operations (Annex "B").

On the basis of Roque's sworn statement, the sworn statement and supplemental affidavit of one Angelito
H. Sanchez, and the sworn statement of Gen. Lorenzo Mateo (Annexes "C," "D" and "E"), then NBI Director
Mariano M. Mison forwarded the result of their investigation on the "jueteng" scam to the Department of
Justice (DOJ), recommending the filing of the following charges against Pineda and other persons . . . .

xxx xxx xxx

The DOJ Task Force on Illegal Gambling (composed of the petitioner-prosecutors), created by petitioner
Secretary Teofisto Guingona on November 24, 1995 (Annex "F"), conducted a preliminary investigation of
the case and subpoenaed all the respondents in I.S. No. 95-774, therein requiring them to submit their
counter-affidavits by December 22, 1995.

On December 21, 1995, Roque executed a supplemental sworn statement relative to I.S. No. 95-774,
clarifying some of his statements in his first affidavit (Annex "G"). Consequently, the December 22, 1995
setting was cancelled and reset to January 8, 1996 to give Pineda and other respondents time to refute the
charges contained in the supplemental sworn statement.

On January 5, 1996, Pineda filed a "Petition for Reconsideration of Admittance of Potenciano A. Roque to
the Witness Protection Program," which was denied by petitioner Secretary in a letter-reply dated January
11, 1996 (Annexes "H" and "I"). On January 23, 1996, Pineda filed a Petition for Certiorari, Prohibition and
Mandamus with Application for Temporary Restraining Order and Preliminary Injunction with the
respondent Court of Appeals.

xxx xxx xxx

In the meantime, petitioner-prosecutors proceeded with their preliminary investigation, and on February 2,
1996, they issued a resolution finding probable cause to charge private respondent Pineda with several
offenses (Annex "K"). On February 5, 1996, three (3) Informations for corruption of public officials were filed
against him in the Manila and Pasig City Trial Courts (Annexes "L," "M" and "N"). He was subsequently
arraigned on February 28, 1996 in the Regional Trial Court, Branch 7 of the City of Manila presided by Judge
Enrico Lanzanes, and on March 14, 1996 in the Regional Trial Court, Branch 168, of Pasig City, presided by
Judge Benjamin Pelayo.

On March 19, 1996, the Court of Appeals came up with a writ of preliminary injunction enjoining both trial
courts from hearing the criminal actions in the meantime.

The Ruling of the Court of Appeals

In its Decision, Respondent Court addressed mainly the issue of whether the secretary of justice acted in
excess of his jurisdiction (a) in admitting Petitioner Roque into the Program and (b) in excluding him from
the Informations filed against private respondent. Private respondent contended that Roque's admission
was illegal on two grounds: first, his testimony could not be substantially corroborated in its material
points; and second, he appeared to be the most guilty or at least more guilty than private respondent,
insofar as the crimes charged in the Informations were concerned.

Respondent Court also ruled that RA 6981 contemplates two kinds of witnesses: (a) a witness who has
perceived or has knowledge of, or information on, the commission of a crime under Section 3; and (b)
aparticeps criminis or a participant in the crime under Section 10.

Based on his sworn statements, Roque participated in the commission of the crimes imputed to private
respondent (corruption of public officials) by accepting bribe money. Necessarily, his admission to the
Program fell under Section 10, which requires that he should not appear to be the most guilty of the
imputed crimes. Respondent Court found that private respondent sought to bribe him several times to
prevent him from conducting raids on private respondent's gambling operations. Such "passive
participation" in the crimes did not make him more guilty than private respondent.

On the first issue, Respondent Court initially ruled that, by express provision of Sections 3 and 10, the
requirement of corroboration is a condition precedent to admission into the Program. A contrary
interpretation would only sanction the squandering of the various benefits of the Program on one who
might later be adjudged disqualified from admission for lack of evidence to corroborate his testimony.
However, in the same breath, Respondent Court upheld herein petitioners' alternative position that
substantial corroboration was nevertheless actually provided by Angelito Sanchez' and retired Gen.
Lorenzo M. Mateo's testimonies. Hence, it disposed in favor of the government.

Subsequently, this petition was filed. 4

The Issue

The lone issue raised by this petition is worded as follows:

Whether or not a witness' testimony requires prior or simultaneous corroboration at the time he is admitted
into the witness protection, security and benefit program. 5

As noted earlier, this petition is unusual and unique. Despite ruling in their favor, Respondent Court is
assailed by petitioners for opining that admission to the Program requires prior or simultaneous
corroboration of the material points in the witness' testimony.

Respondent Court and private respondent are of the opinion that Sections 3 (b) & 10 (d) of RA 6981
expressly require that corroboration must already exist at the time of the witness' application as a
prerequisite to admission into the Program. RA 6981 pertinently provides:

Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to be a
witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be
admitted into the Program whenever the following are present:

xxx xxx xxx

(d) his testimony can be substantially corroborated on its material points;

xxx xxx xxx

On the other hand, petitioners contend that said provisions merely require that the testimony of the state
witness seeking admission into the Program "can be substantially corroborated" or is "capable of
corroboration." So long as corroboration can be obtained when he testifies in court, he satisfies the
requirement that "his testimony can be substantially corroborated on its material points."

The Court's Ruling

The petition must fail, because the facts and the issue raised by petitioners do not warrant the exercise of
judicial power.

No Actual Controversy

Without going into the merits of the case, the Court finds the petition fundamentally defective. The
Constitution provides that judicial power "includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable." 6 According to Fr. Joaquin
Bernas, a noted constitutionalist, courts are mandated to settle disputes between real conflicting parties
through the application of the law. 7 Judicial review, which is merely an aspect of judicial power, demands
the following: (1) there must be an actual case calling for the exercise of judicial power; (2) the question
must be ripe for adjudication; 8 and (3) the person challenging must have "standing"; that is, he has
personal and substantial interest in the case, such that he has sustained or will sustain direct injury. 9

The first requisite is that there must be before a court an actual case calling for the exercise of judicial
power. Courts have no authority to pass upon issues through advisory opinions or to resolve hypothetical
or feigned problems 10 or friendly suits collusively arranged between parties without real adverse
interests. 11 Courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging. 12 As a condition precedent to the exercise of judicial power, an actual
controversy between litigants must first exist. 13

An actual case or controversy exists when there is a conflict of legal rights or an assertion of opposite legal
claims, which can be resolved on the basis of existing law and jurisprudence. A justiciable controversy is
distinguished from a hypothetical or abstract difference or dispute, in that the former involves a definite and
concrete dispute touching on the legal relations of parties having adverse legal interests. A justiciable
controversy admits of specific relief through a decree that is conclusive in character, whereas an opinion
only advises what the law would be upon a hypothetical state of facts. 14

Thus, no actual controversy was found in Abbas vs. Commission on Elections 15 regarding the provision in
the Organic Act, which mandates that should there be any conflict between national law and Islamic Law,
the Shari'ah courts should apply the former. In that case, the petitioner maintained that since the Islamic
Law (Shari'ah) was derived from the Koran, which makes it part of divine law, the Shari'ah may not be
subjected to any "man-made" national law. This Court dismissed petitioner's argument because, as
enshrined in the Constitution, judicial power includes the duty to settle actual controversies involving
rights which are legally demandable and enforceable. No actual controversy between real litigants existed,
because no conflicting claims involving the application of national law were presented. This being so, the
Supreme Court refused to rule on a merely perceived potential conflict between the provisions of the
Muslim Code and those of the national law.

In contrast, the Court held in Sabello vs. Department of Education, Culture and Sports 16 that there was a
justiciable controversy where the issue involved was whether petitioner — after he was given an absolute
pardon — merited reappointment to the position he had held prior to his conviction, that of Elementary
Principal I. The Court said that such dispute was not hypothetical or abstract, for there was a definite and
concrete controversy touching on the legal relations of parties and admitting of specific relief through a
court decree that was conclusive in character. That case did not call for mere opinion or advice, but for
affirmative relief.

Closely related to the requirement of an "actual case," Bernas continues, is the second requirement that the
question is "ripe" for adjudication. A question is ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it. Thus, in PACU vs. Secretary of Education, 17 the
Court declined to pass judgment on the question of the validity of Section 3 of Act No. 2706, which provided
that before a private school may be opened to the public, it must first obtain a permit from the secretary of
education, because all the petitioning schools had permits to operate and were actually operating, and none
of them claimed that the secretary had threatened to revoke their permit.

In Tan vs. Macapagal, 18 the Court said that Petitioner Gonzales "had the good sense to wait" until after the
enactment of the statute [Rep. Act No. 4913 (1967)] requiring the submission to the electorate of certain
proposed amendments to the Constitution [Resolution Nos. 1 and 3 of Congress as a constituent body
(1967)] before he could file his suit. It was only when this condition was met that the matter became ripe for
adjudication; prior to that stage, the judiciary had to keep its hands off.

The doctrine of separation of powers calls for each branch of government to be left alone to discharge its
duties as it sees fit. Being one such branch, the judiciary, Justice Laurel asserted, "will neither direct nor
restrain executive [or legislative action] . . . ." 19 The legislative and the executive branches are not allowed
to seek its advice on what to do or not to do; thus, judicial inquiry has to be postponed in the meantime.
Before a court may enter the picture, a prerequisite is that something has been accomplished or performed
by either branch. Then may it pass on the validity of what has been done but, then again, only "when . . .
properly challenged in an appropriate legal proceeding." 20

In the case at bar, it is at once apparent that petitioners are not requesting that this Court reverse the ruling
of the appellate court and disallow the admission in evidence of Respondent Roque's testimony, inasmuch
as the assailed Decision does not appear to be in conflict with any of their present claims. Petitioners filed
this suit out of fear that the assailed Decision would frustrate the purpose of said law, which is to
encourage witnesses to come out and testify. But their apprehension is neither justified nor exemplified by
this particular case. A mere apprehension does not give rise to a justiciable controversy.

After finding no grave abuse of discretion on the part of the government prosecutors, Respondent Court
allowed the admission of Roque into the Program. In fact, Roque had already testified in court against the
private respondent. Thus, the propriety of Roque's admission to the Program is already a moot and
academic issue that clearly does not warrant judicial review.

Manifestly, this petition involves neither any right that was violated nor any claims that conflict. In fact, no
affirmative relief is being sought in this case. The Court concurs with the opinion of counsel for private
respondent that this action is a "purely academic exercise," which has no relevance to the criminal cases
against Respondent Pineda. After the assailed Decision had been rendered, trial in those cases proceeded
in earnest, and Roque testified in all of them. Said counsel filed his Memorandum only to satisfy his
"academic interest on how the State machinery will deal with witnesses who are admittedly guilty of the
crimes but are discharged to testify against their co-accused." 21

Petitioners failed not only to present an actual controversy, but also to show a case ripe for adjudication.
Hence, any resolution that this Court might make in this case would constitute an attempt at abstraction
that can only lead to barren legal dialectics and sterile conclusions unrelated to actualities. 22

An Executive Function

In the present petition, the government is in effect asking this Court to render an advisory opinion on what
the government prosecutors should do — when, how and whom to grant or to deny admission into the
Program. To accede to it is tantamount to an incursion into the functions of the executive department. From
their arguments stated above, both sides have obviously missed this crucial point, which is succinctly
stated in Webb vs. De Leon: 23

It is urged that they [the provisions of RA 6918] constitute ". . . an intrusion into judicial prerogative for it is
only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a
state witness." The argument is based on Section 9, Rule 119 which gives the court the prerogative to
approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on
the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of
courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to
the executive department of government whose principal power and responsibility is to see that our laws
are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute
their violators. The right to prosecute vests the prosecutor with a wide range of discretion — the discretion
of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which
are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress
to enact R.A. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness
in the program and who shall be granted immunity from prosecution. Section 9 of Rule 119 does not
support the proposition that the power to choose who shall be a state witness is an inherent judicial
prerogative. Under this provision, the court is given the power to discharge a state witness only because it
has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the
exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court
have never been interpreted to be beyond change by legislation designed to improve the administration of
our justice system. [Emphasis ours]

Simply stated, the decision on whether to prosecute and whom to indict is executive in character. Only
when an information, charging two or more persons with a certain offense, has already been filed in court
will Rule 119, Section 9 of the Rules of Court, come into play, viz.:

Sec. 9. Discharge of one of several defendants to be witness for the prosecution. — When two or more
persons are charged with the commission of a certain offense, the competent court, at any time before they
have entered upon their defense, may direct one or more of them to be discharged with the latter's consent
that he or they may be witnesses for the government when in the judgment of the court:

(a) There is absolute necessity for the testimony of the defendant whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except
the testimony of said defendant;

(c) The testimony of said defendant can be substantially corroborated in its material points;

(d) Said defendant does not appear to be the most guilty;

(e) Said defendant has not at any time been convicted of any offense involving moral turpitude.

In the present case, Roque was not one of those accused in the Informations filed by the government
prosecutors. Rule 119, Section 9, is therefore clearly not applicable.

A resort to the progenitors of RA 6981 will yield the same result. Although Presidential Decree 1731 and
National Emergency Memorandum Order No. 26 state only when immunity from suit attaches to a witness,
they do not specify who are qualified for admission into the Program. PD 1731, otherwise known as a law
"Providing for Rewards and Incentives to Government Witnesses and Informants and for Other Purposes"
provides:

Sec. 4. Any such informants or witnesses who shall testify, or provide vital information, regarding the
existence or activity of a group involved in the commission of crimes against national security or public
order, or of an organized/syndicated crime or crime group, and/or the culpability of individual members
thereof in accordance with this Decree shall, upon recommendation of the state prosecutor, fiscal or
military lawyer, as approved by the Secretary of National Defense or the Secretary of Justice, as the case
may be, be immune from criminal prosecution for his participation or involvement in any such criminal
activity which is the subject of the investigation or prosecution, in addition to the benefits under Sec. 2
hereof: Provided, that, immunity from criminal prosecution shall, in the case of a witness offering to testify,
attach only upon his actually testifying in court in accordance with his undertaking as accepted by the state
prosecutor, fiscal, or military lawyer: Provided, further, that the following conditions are complied with:

xxx xxx xxx

c. That such testimony or information can be substantially corroborated in its material points;

xxx xxx xxx

The same tenor was adopted in National Emergency Memorandum Order No. 26 signed by former President
Corazon C. Aquino, Section 5 (c) of which provides:

c. Immunity from Criminal Prosecution. — This applies to the witness participation or involvement in the
criminal case in which his testimony is necessary and may be availed of only upon his actually testifying in
court in accordance with his undertaking, and provided that:

xxx xxx xxx

(3) Such testimony or information can be substantially corroborated in its material points;

xxx xxx xxx

One may validly infer from the foregoing that the government prosecutor is afforded much leeway in
choosing whom to admit into the Program. Such inference is in harmony with the basic principle that this is
an executive function.
RA 6981 is a much needed penal reform law that could help the government in curbing crime by providing
an antidote, as it were, to the usual reluctance of witnesses to testify. The Department of Justice has clearly
explained the rationale for said law: 24

Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the
investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases
have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of
criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights
and benefits to ensure their appearance in investigative bodies/courts.

This Court should then leave to the executive branch the decision on how best to administer the Witness
Protection Program. Unless an actual controversy arises, we should not jump the gun and unnecessarily
intervene in this executive function.

Closer Scrutiny of the Assailed Decision

Finally, an accurate reading of the assailed Decision will further enlighten petitioners as to its true message.
Respondent Court did sustain Roque's admission into the Program — even as it held that the first
contention of petitioners was untenable — based on the latter's alternative argument that Roque's
testimony was sufficiently corroborated by that of General Mateo. While Respondent Court insisted that
corroboration must exist prior to or simultaneous with Roque's admission into the Program, it sanctioned
subsequent compliance to cure this defect. The reason for this is found in the penultimate paragraph of the
Decision, in which Respondent Court categorically stated that it found no manifest abuse of discretion in
the petitioners' action. There is no quarrel with this point. Until a more opportune occasion involving a
concrete violation of RA 6981 arises, the Court has no jurisdiction to rule on the issue raised by petitioners.

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.

Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5279 October 31, 1955

PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES, ETC., petitioner,

vs.
SECRETARY OF EDUCATION and the BOARD OF TEXTBOOKS, respondents.

Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego and Enrique M. Fernando for petitioner.
Office of the Solicitor General Pompeyo Diaz and Assistant Solicitor General Francisco Carreon for respondents.

BENGZON, J.:

The petitioning colleges and universities request that Act No. 2706 as amended by Act No. 3075 and
Commonwealth Act No. 180 be declared unconstitutional, because: A. They deprive owners of schools and colleges
as well as teachers and parents of liberty and property without due process of law; B. They deprive parents of their
natural rights and duty to rear their children for civic efficiency; and C. Their provisions conferring on the Secretary
of Education unlimited power and discretion to prescribe rules and standards constitute an unlawful delegation of
legislative power.

A printed memorandum explaining their position in extenso is attached to the record.

The Government's legal representative submitted a mimeographed memorandum contending that, (1) the matter
constitutes no justiciable controversy exhibiting unavoidable necessity of deciding the constitutional questions; (2)
petitioners are in estoppel to challenge the validity of the said acts; and (3) the Acts are constitutionally valid.

Petitioners submitted a lengthy reply to the above arguments.

Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and recognition of private schools and
colleges obligatory for the Secretary of Public Instruction." Under its provisions, the Department of Education has,
for the past 37 years, supervised and regulated all private schools in this country apparently without audible protest,
nay, with the general acquiescence of the general public and the parties concerned.

It should be understandable, then, that this Court should be doubly reluctant to consider petitioner's demand for
avoidance of the law aforesaid, specially where, as respondents assert, petitioners suffered no wrong—nor allege
any—from the enforcement of the criticized statute.

It must be evident to any one that the power to declare a legislative enactment void is one which the judge,
conscious of the fallability of the human judgment, will shrink from exercising in any case where he can
conscientiously and with due regard to duty and official oath decline the responsibility. (Cooley Constitutional
Limitations, 8th Ed., Vol. I, p. 332.)

When a law has been long treated as constitutional and important rights have become dependent thereon, the Court
may refuse to consider an attack on its validity. (C. J. S. 16, p. 204.)

As a general rule, the constitutionality of a statute will be passed on only if, and to the extent that, it is directly and
necessarily involved in a justiciable controversy and is essential to the protection of the rights of the parties
concerned. (16 C. J. S., p. 207.)

In support of their first proposition petitioners contend that the right of a citizen to own and operate a school is
guaranteed by the Constitution, and any law requiring previous governmental approval or permit before such person
could exercise said right, amounts to censorship of previous restraint, a practice abhorent to our system of law and
government. Petitioners obviously refer to section 3 of Act No. 2706 as amended which provides that before a
private school may be opened to the public it must first obtain a permit from the Secretary of Education. The
Solicitor General on the other hand points out that none of the petitioners has cause to present this issue, because
all of them have permits to operate and are actually operating by virtue of their permits.1 And they do not assert that
the respondent Secretary of Education has threatened to revoke their permits. They have suffered no wrong under
the terms of law—and, naturally need no relief in the form they now seek to obtain.

It is an established principle that to entitle a private individual immediately in danger of sustaining a direct injury as
the result of that action and it is not sufficient that he has merely a general to invoke the judicial power to determine
the validity of executive or legislative action he must show that he has sustained or is interest common to all
members of the public. (Ex parte Levitt, 302 U. S. 633 82 L. Ed. 493.)

Courts will not pass upon the constitutionality of a law upon the complaint of one who fails to show that he is injured
by its operation. (Tyler vs. Judges, 179 U. S. 405; Hendrick vs. Maryland, 235 U. S. 610; Coffman vs. Breeze Corp.,
323 U. S. 316-325.)
The power of courts to declare a law unconstitutional arises only when the interests of litigant require the use of that
judicial authority for their protection against actual interference, a hypothetical threat being insufficient. (United
Public Works vs. Mitchell, 330 U .S. 75; 91 L. Ed. 754.)

Bona fide suit.—Judicial power is limited to the decision of actual cases and controversies. The authority to pass on
the validity of statutes is incidental to the decision of such cases where conflicting claims under the Constitution and
under a legislative act assailed as contrary to the Constitution are raised. It is legitimate only in the last resort, and
as necessity in the determination of real, earnest, and vital controversy between litigants. (Tañada and Fernando,
Constitution of the Philippines, p. 1138.)

Mere apprehension that the Secretary of Education might under the law withdraw the permit of one of petitioners
does not constitute a justiciable controversy. (Cf. Com. ex rel Watkins vs. Winchester Waterworks (Ky.) 197 S. W.
2d. 771.)

And action, like this, is brought for a positive purpose, nay, to obtain actual and positive relief. (Salonga vs. Warner
Barnes, L-2245, January, 1951.) Courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest therein, however intellectually solid the problem may be. This is specially true where the issues "reach
constitutional dimensions, for then there comes into play regard for the court's duty to avoid decision of
constitutional issues unless avoidance becomes evasion." (Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep., May 23,
1995, Law Ed., Vol. 99, p. 511.)

The above notwithstanding, in view of the several decisions of the United States Supreme Court quoted by
petitioners, apparently outlawing censorship of the kind objected to by them, we have decided to look into the
matter, lest they may allege we refuse to act even in the face of clear violation of fundamental personal rights of
liberty and property.

Petitioners complain that before opening a school the owner must secure a permit from the Secretary of Education.
Such requirement was not originally included in Act No. 2706. It was introduced by Commonwealth Act No. 180
approved in 1936. Why?

In March 1924 the Philippine Legislature approved Act No. 3162 creating a Board of Educational Survey to make a
study and survey of education in the Philippines and of all educational institutions, facilities and agencies thereof. A
Board chairmaned by Dr. Paul Munroe, Columbia University, assisted by a staff of carefully selected technical
members performed the task, made a five-month thorough and impartial examination of the local educational
system, and submitted a report with recommendations, printed as a book of 671 pages. The following paragraphs
are taken from such report:

PRIVATE-ADVENTURE SCHOOLS

There is no law or regulation in the Philippine Islands today to prevent a person, however disqualified by ignorance,
greed, or even immoral character, from opening a school to teach the young. It it true that in order to post over the
door "Recognized by the Government," a private adventure school must first be inspected by the proper
Government official, but a refusal to grant such recognition does not by any means result in such a school ceasing
to exist. As a matter of fact, there are more such unrecognized private schools than of the recognized variety. How
many, no one knows, as the Division of Private Schools keeps records only of the recognized type.

Conclusion.—An unprejudiced consideration of the fact presented under the caption Private Adventure Schools
leads but to one conclusion, viz.: the great majority of them from primary grade to university are money-making
devices for the profit of those who organize and administer them. The people whose children and youth attend them
are not getting what they pay for. It is obvious that the system constitutes a great evil. That it should be permitted to
exist with almost no supervision is indefensible. The suggestion has been made with the reference to the private
institutions of university grade that some board of control be organized under legislative control to supervise their
administration. The Commission believes that the recommendations it offers at the end of this chapter are more
likely to bring about the needed reforms.

Recommendations.—The Commission recommends that legislation be enacted to prohibit the opening of any school
by an individual or organization without the permission of the Secretary of Public Instruction. That before granting
such permission the Secretary assure himself that such school measures up to proper standards in the following
respects, and that the continued existence of the school be dependent upon its continuing to conform to these
conditions:

(1) The location and construction of the buildings, the lighting and ventilation of the rooms, the nature of the
lavatories, closets, water supply, school furniture and apparatus, and methods of cleaning shall be such as to insure
hygienic conditions for both pupils and teachers.

(2) The library and laboratory facilities shall be adequate to the needs of instruction in the subjects taught.

(3) The classes shall not show an excessive number of pupils per teacher. The Commission recommends 40 as a
maximum.

(4) The teachers shall meet qualifications equal to those of teachers in the public schools of the same grade.

xxx xxx xxx

In view of these findings and recommendations, can there be any doubt that the Government in the exercise of its
police power to correct "a great evil" could validly establish the "previous permit" system objected to by petitioners?
This is what differentiates our law from the other statutes declared invalid in other jurisdictions. And if any doubt still
exists, recourse may now be had to the provision of our Constitution that "All educational institutions shall be under
the supervision and subject to regulation by the State." (Art. XIV, sec. 5.) The power to regulate establishments or
business occupations implies the power to require a permit or license. (53 C. J. S. 4.)

What goes for the "previous permit" naturally goes for the power to revoke such permit on account of violation of
rules or regulations of the Department.

II. This brings us to the petitioners' third proposition that the questioned statutes "conferring on the Secretary of
Education unlimited power and discretion to prescribe rules and standards constitute an unlawful delegation of
legislative power."

This attack is specifically aimed at section 1 of Act No. 2706 which, as amended, provides:

It shall be the duty of the Secretary of Public Instruction to maintain a general standard of efficiency in all private
schools and colleges of the Philippines so that the same shall furnish adequate instruction to the public, in
accordance with the class and grade of instruction given in them, and for this purpose said Secretary or his duly
authorized representative shall have authority to advise, inspect, and regulate said schools and colleges in order to
determine the efficiency of instruction given in the same,

"Nowhere in this Act" petitioners argue "can one find any description, either general or specific, of what constitutes a
'general standard of efficiency.' Nowhere in this Act is there any indication of any basis or condition to ascertain
what is 'adequate instruction to the public.' Nowhere in this Act is there any statement of conditions, acts, or factors,
which the Secretary of Education must take into account to determine the 'efficiency of instruction.'"

The attack on this score is also extended to section 6 which provides:

The Department of Education shall from time to time prepare and publish in pamphlet form the minimum standards
required of primary, intermediate, and high schools, and colleges granting the degrees of Bachelor of Arts, Bachelor
of Science, or any other academic degree. It shall also from time to time prepare and publish in pamphlet form the
minimum standards required of law, medical, dental, pharmaceutical, engineering, agricultural and other medical or
vocational schools or colleges giving instruction of a technical, vocational or professional character.

Petitioners reason out, "this section leaves everything to the uncontrolled discretion of the Secretary of Education or
his department. The Secretary of Education is given the power to fix the standard. In plain language, the statute
turns over to the Secretary of Education the exclusive authority of the legislature to formulate standard. . . .."

It is quite clear the two sections empower and require the Secretary of Education to prescribe rules fixing minimum
standards of adequate and efficient instruction to be observed by all such private schools and colleges as may be
permitted to operate. The petitioners contend that as the legislature has not fixed the standards, "the provision is
extremely vague, indefinite and uncertain"—and for that reason constitutionality objectionable. The best answer is
that despite such alleged vagueness the Secretary of Education has fixed standards to ensure adequate and
efficient instruction, as shown by the memoranda fixing or revising curricula, the school calendars, entrance and
final examinations, admission and accreditation of students etc.; and the system of private education has, in
general, been satisfactorily in operation for 37 years. Which only shows that the Legislature did and could, validly
rely upon the educational experience and training of those in charge of the Department of Education to ascertain
and formulate minimum requirements of adequate instruction as the basis of government recognition of any private
school.

At any rate, petitioners do not show how these standards have injured any of them or interfered with their operation.
Wherefore, no reason exists for them to assail the validity of the power nor the exercise of the power by the
Secretary of Education.

True, the petitioners assert that, the Secretary has issued rules and regulations "whimsical and capricious" and that
such discretionary power has produced arrogant inspectors who "bully heads and teachers of private schools."
Nevertheless, their remedy is to challenge those regulations specifically, and/or to ring those inspectors to book, in
proper administrative or judicial proceedings—not to invalidate the law. For it needs no argument, to show that
abuse by the officials entrusted with the execution of a statute does not per se demonstrate the unconstitutionality of
such statute.

Anyway, we find the defendants' position to be sufficiently sustained by the decision in Alegra vs. Collector of
Customs, 53 Phil., 394 upon holding the statute that authorized the Director of Agriculture to "designate standards
for the commercial grades of abaca, maguey and sisal" against vigorous attacks on the ground of invalid delegation
of legislative power.

Indeed "adequate and efficient instruction" should be considered sufficient, in the same way as "public welfare"
"necessary in the interest of law and order" "public interest" and "justice and equity and substantial merits of the
case" have been held sufficient as legislative standards justifying delegation of authority to regulate. (See Tañada
and Fernando, Constitution of the Philippines, p. 793, citing Philippine cases.)

On this phase of the litigation we conclude that there has been no undue delegation of legislative power.
In this connection, and to support their position that the law and the Secretary of Education have transcended the
governmental power of supervision and regulation, the petitioners appended a list of circulars and memoranda
issued by the said Department. However they failed to indicate which of such official documents was constitutionally
objectionable for being "capricious," or pain "nuisance"; and it is one of our decisional practices that unless a
constitutional point is specifically raised, insisted upon and adequately argued, the court will not consider it.
(Santiago vs. Far Eastern, 73 Phil., 408.)

We are told that such list will give an idea of how the statute has placed in the hands of the Secretary of Education
complete control of the various activities of private schools, and why the statute should be struck down as
unconstitutional. It is clear in our opinion that the statute does not in express terms give the
Secretary complete control. It gives him powers to inspect private schools, to regulate their activities, to give them
official permits to operate under certain conditions, and to revoke such permits for cause. This does not amount
to complete control. If any of such Department circulars or memoranda issued by the Secretary go beyond the
bounds of regulation and seeks to establish complete control, it would surely be invalid. Conceivably some of them
are of this nature, but besides not having before us the text of such circulars, the petitioners have omitted to specify.
In any event with the recent approval of Republic Act No. 1124 creating the National Board of Education, opportunity
for administrative correction of the supposed anomalies or encroachments is amply afforded herein petitioners. A
more expeditious and perhaps more technically competent forum exists, wherein to discuss the necessity,
convenience or relevancy of the measures criticized by them. (See also Republic Act No. 176.)

If however the statutes in question actually give the Secretary control over private schools, the question arises
whether the power of supervision and regulation granted to the State by section 5 Article XIV was meant to include
control of private educational institutions. It is enough to point out that local educators and writers think the
Constitution provides for control of Education by the State. (See Tolentino, Government of the Philippine
Constitution, Vol. II, p. 615; Benitez, Philippine Social Life and Progress, p. 335.)

The Constitution (it) "provides for state control of all educational institutions" even as it enumerates certain
fundamental objectives of all education to wit, the development of moral character, personal discipline, civic
conscience and vocational efficiency, and instruction in the duties of citizenship. (Malcolm & Laurel, Philippine
Constitutional Law, 1936.)

The Solicitor General cities many authorities to show that the power to regulate means power to control, and quotes
from the proceedings of the Constitutional Convention to prove that State control of private education was intended
by the organic law. It is significant to note that the Constitution grants power to supervise and to regulate. Which
may mean greater power than mere regulation.

III. Another grievance of petitioners—probably the most significant—is the assessment of 1 per cent levied on gross
receipts of all private schools for additional Government expenses in connection with their supervision and
regulation. The statute is section 11-A of Act No. 2706 as amended by Republic Act No. 74 which reads as follows:

SEC. 11-A. The total annual expense of the Office of Private Education shall be met by the regular amount
appropriated in the annual Appropriation Act: Provided, however, That for additional expenses in the supervision
and regulation of private schools, colleges and universities and in the purchase of textbook to be sold to student of
said schools, colleges and universities and President of the Philippines may authorize the Secretary of Instruction to
levy an equitable assessment from each private educational institution equivalent to one percent of the total amount
accruing from tuition and other fees: . . . and non-payment of the assessment herein provided by any private school,
college or university shall be sufficient cause for the cancellation by the Secretary of Instruction of the permit for
recognition granted to it.

Petitioners maintain that this is a tax on the exercise of a constitutional right—the right to open a school, the liberty
to teach etc. They claim this is unconstitutional, in the same way that taxes on the privilege of selling religious
literature or of publishing a newspaper—both constitutional privileges—have been held, in the United States, to be
invalid as taxes on the exercise of a constitutional right.

The Solicitor General on the other hand argues that insofar as petitioners' action attempts to restrain the further
collection of the assessment, courts have no jurisdiction to restrain the collection of taxes by injunction, and in so far
as they seek to recover fees already paid the suit, it is one against the State without its consent. Anyway he
concludes, the action involving "the legality of any tax impost or assessment" falls within the original jurisdiction of
Courts of First Instance.

There are good grounds in support of Government's position. If this levy of 1 per cent is truly a mere fee—and not a
tax—to finance the cost of the Department's duty and power to regulate and supervise private schools, the exaction
may be upheld; but such point involves investigation and examination of relevant data, which should best be carried
out in the lower courts. If on the other hand it is a tax, petitioners' issue would still be within the original jurisdiction of
the Courts of First Instance.

The last grievance of petitioners relates to the validity of Republic Act No. 139 which in its section 1 provides:

The textbooks to be used in the private schools recognized or authorized by the government shall be submitted to
the Board (Board of Textbooks) which shall have the power to prohibit the use of any of said textbooks which it may
find to be against the law or to offend the dignity and honor of the government and people of the Philippines, or
which it may find to be against the general policies of the government, or which it may deem pedagogically
unsuitable.
This power of the Board, petitioners aver, is censorship in "its baldest form". They cite two U. S. cases (Miss. and
Minnesota) outlawing statutes that impose previous restraints upon publication of newspapers, or curtail the right of
individuals to disseminate teachings critical of government institutions or policies.

Herein lies another important issue submitted in the cause. The question is really whether the law may be enacted
in the exercise of the State's constitutional power (Art. XIV, sec. 5) to supervise and regulate private schools. If that
power amounts to control of private schools, as some think it is, maybe the law is valid. In this connection we do not
share the belief that section 5 has added new power to what the State inherently possesses by virtue of the police
power. An express power is necessarily more extensive than a mere implied power. For instance, if there is conflict
between an express individual right and the express power to control private education it cannot off-hand be said
that the latter must yield to the former—conflict of two express powers. But if the power to control education ismerely
implied from the police power, it is feasible to uphold the express individual right, as was probably the situation in
the two decisions brought to our attention, of Mississippi and Minnesota, states where constitutional control of
private schools is not expressly produced.

However, as herein previously noted, no justiciable controversy has been presented to us. We are not informed that
the Board on Textbooks has prohibited this or that text, or that the petitioners refused or intend to refuse to submit
some textbooks, and are in danger of losing substantial privileges or rights for so refusing.

The average lawyer who reads the above quoted section of Republic Act 139 will fail to perceive anything
objectionable. Why should not the State prohibit the use of textbooks that are illegal, or offensive to the Filipinos or
adverse to governmental policies or educationally improper? What's the power of regulation and supervision for?
But those trained to the investigation of constitutional issues are likely to apprehend the danger to civil liberties, of
possible educational dictatorship or thought control, as petitioners' counsel foresee with obvious alarm. Much
depends, however, upon the execution and implementation of the statute. Not that constitutionality depends
necessarily upon the law's effects. But if the Board on Textbooks in its actuations strictly adheres to the letter of the
section and wisely steers a middle course between the Scylla of "dictatorship" and the Charybdis of "thought
control", no cause for complaint will arise and no occasion for judicial review will develop. Anyway, and again,
petitioners now have a more expeditious remedy thru an administrative appeal to the National Board of Education
created by Republic Act 1124.

Of course it is necessary to assure herein petitioners, that when and if, the dangers they apprehend materialize and
judicial intervention is suitably invoked, after all administrative remedies are exhausted, the courts will not shrink
from their duty to delimit constitutional boundaries and protect individual liberties.

IV. For all the foregoing considerations, reserving to the petitioners the right to institute in the proper court, and at
the proper time, such actions as may call for decision of the issue herein presented by them, this petition for
prohibition will be denied. So ordered.

Paras, C. J., Padilla, Montemayor, Reyes, A., and Jugo, JJ., concur.
 EN BANC

[G.R. No. 152295. July 9, 2002]

ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO, JOSEPHINE ATANGAN, RONALD ATANGAN

and CLARIZA DECENA, and OTHER YOUTH OF THE LAND SIMILARLY SITUATED, petitioners,
vs. COMMISSION ON ELECTIONS, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, DEPARTMENT
OF BUDGET AND MANAGEMENT, EXECUTIVE SECRETARY of the OFFICE OF THE PRESIDENT, SENATOR
FRANKLIN DRILON in his capacity as Senate President and SENATOR AQUILINO PIMENTEL in his capacity
as Minority Leader of the Senate of the Philippines, CONGRESSMAN JOSE DE VENECIA in his capacity as
Speaker, CONGRESSMAN AGUSTO L. SYJOCO in his capacity as Chairman of the Committee on Suffrage
and Electoral Reforms, and CONGRESSMAN EMILIO C. MACIAS II in his capacity as Chairman of the
Committee on Local Government of the House of Representatives, THE PRESIDENT OF THE PAMBANSANG
KATIPUNAN NG MGA SANGGUNIANG KABATAAN, AND ALL THEIR AGENTS AND
REPRESENTATIVES, respondents.

DECISION

CARPIO, J.:

The Case

Before us is a petition for certiorari, prohibition and mandamus with prayer for a temporary restraining order or
preliminary injunction. The petition seeks to prevent the postponement of the Sangguniang Kabataan (SK for
brevity) elections originally scheduled last May 6, 2002. The petition also seeks to prevent the reduction of the age
requirement for membership in the SK.

Petitioners, who are all 20 years old, filed this petition as a taxpayers and class suit, on their own behalf and on
behalf of other youths similarly situated. Petitioners claim that they are in danger of being disqualified to vote and be
voted for in the SK elections should the SK elections on May 6, 2002 be postponed to a later date. Under the Local
Government Code of 1991 (R.A. No. 7160), membership in the SK is limited to youths at least 15 but not more than
21 years old.

Petitioners allege that public respondents connived, confederated and conspired to postpone the May 6, 2002 SK
elections and to lower the membership age in the SK to at least 15 but less than 18 years of age. Petitioners assail
the alleged conspiracy because youths at least 18 but not more than 21 years old will be summarily and unduly
dismembered, unfairly discriminated, unnecessarily disenfranchised, unjustly disassociated and obnoxiously
disqualified from the SK organization.[1]

Thus, petitioners pray for the issuance of a temporary restraining order or preliminary injunction -

a) To prevent, annul or declare unconstitutional any law, decree, Comelec resolution/directive and other
respondents issuances, orders and actions and the like in postponing the May 6, 2002 SK elections.

b) To command the respondents to continue the May 6, 2002 SK elections set by the present law and in accordance
with Comelec Resolutions No. 4713 and 4714 and to expedite the funding of the SK elections.

c) In the alternative, if the SK elections will be postponed for whatever reason, there must be a definite date for said
elections, for example, July 15, 2002, and the present SK membership, except those incumbent SK officers who
were elected on May 6, 1996, shall be allowed to run for any SK elective position even if they are more than 21
years old.

d) To direct the incumbent SK officers who are presently representing the SK in every sanggunian and the NYC to
vacate their post after the barangay elections.[2]

The Facts

The SK is a youth organization originally established by Presidential Decree No. 684 as the Kabataang
Barangay (KB for brevity). The KB was composed of all barangay residents who were less than 18 years old,
without specifying the minimum age. The KB was organized to provide its members with the opportunity to express
their views and opinions on issues of transcendental importance.[3]

The Local Government Code of 1991 renamed the KB to SK and limited SK membership to those youths at least 15
but not more than 21 years of age.[4] The SK remains as a youth organization in every barangay tasked to initiate
programs to enhance the social, political, economic, cultural, intellectual, moral, spiritual, and physical development
of the youth.[5] The SK in every barangay is composed of a chairperson and seven members, all elected by
the Katipunan ng Kabataan. The Katipunan ng Kabataan in every barangay is composed of all citizens actually
residing in the barangay for at least six months and who meet the membership age requirement.

The first SK elections took place on December 4, 1992. RA No. 7808 reset the SK elections to the first Monday of
May of 1996 and every three years thereafter. RA No. 7808 mandated the Comelec to supervise the conduct of the
SK elections under rules the Comelec shall promulgate. Accordingly, the Comelec on December 4, 2001 issued
Resolution Nos. 4713[6] and 4714[7] to govern the SK elections on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros (Montesclaros for brevity) sent a letter [8] to the
Comelec, demanding that the SK elections be held as scheduled on May 6, 2002.Montesclaros also urged the
Comelec to respond to her letter within 10 days upon receipt of the letter, otherwise, she will seek judicial relief.

On February 20, 2002, Alfredo L. Benipayo (Chairman Benipayo for brevity), then Comelec Chairman, wrote
identical letters to the Speaker of the House[9] and the Senate President[10] about the status of pending bills on the
SK and Barangay elections. In his letters, the Comelec Chairman intimated that it was operationally very difficult to
hold both elections simultaneously in May 2002. Instead, the Comelec Chairman expressed support for the bill of
Senator Franklin Drilon that proposed to hold the Barangay elections in May 2002 and postpone the SK elections to
November 2002.

Ten days lapsed without the Comelec responding to the letter of Montesclaros. Subsequently, petitioners received a
copy of Comelec En Banc Resolution No. 4763[11] dated February 5, 2002 recommending to Congress the
postponement of the SK elections to November 2002 but holding the Barangay elections in May 2002 as
scheduled.[12]

On March 6, 2002, the Senate and the House of Representatives passed their respective bills postponing the SK
elections. On March 11, 2002, the Bicameral Conference Committee (Bicameral Committee for brevity) of the
Senate and the House came out with a Report[13] recommending approval of the reconciled bill consolidating Senate
Bill No. 2050[14] and House Bill No. 4456.[15] The Bicameral Committees consolidated bill reset the SK and Barangay
elections to July 15, 2002 and lowered the membership age in the SK to at least 15 but not more than 18 years of
age.

On March 11, 2002, petitioners filed the instant petition.

On March 11, 2002, the Senate approved the Bicameral Committees consolidated bill and on March 13, 2002, the
House of Representatives approved the same. The President signed the approved bill into law on March 19, 2002.

The Issues

Petitioners[16] raise the following grounds in support of their petition:

I.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC)

WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY
INTENDED TO POSTPONE THE SK ELECTIONS.

II.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC)

WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY
INTENDED TO DISCRIMINATE, DISENFRANCHISE, SINGLE OUT AND DISMEMBER THE SK MEMBERS WHO
ARE 18 BUT NOT LESS[17] (SIC) THAN 21 YEARS OLD COMPOSED OF ABOUT 7 MILLION YOUTH.

III.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC)

WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY
WILLFULLY FAILED TO FUND THE SK ELECTION PURPORTEDLY TO POSTPONE THE SAME IN ORDER TO
IMPLEMENT THEIR ILLEGAL SCHEME AND MACHINATION IN SPITE OF THE FACT THAT THERE ARE
AVAILABLE FUNDS FOR THE PURPOSE.

IV.

THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON THEIR RESPECTIVE OFFICES

CONTRARY TO THE ENVISION (SIC) OF THE CREATION OF THE SK ORGANIZATION, HENCE, IN VIOLATION
OF LAW AND CONSTITUTION.[18]

The Courts Ruling

The petition is bereft of merit.

At the outset, the Court takes judicial notice of the following events that have transpired since petitioners filed this
petition:

1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were not held as scheduled.

2. Congress enacted RA No. 9164[19] which provides that voters and candidates for the SK elections must be at
least 15 but less than 18 years of age on the day of the election.[20] RA No. 9164 also provides that there shall be a
synchronized SK and Barangay elections on July 15, 2002.

3. The Comelec promulgated Resolution No. 4846, the rules and regulations for the conduct of the July 15, 2002
synchronized SK and Barangay elections.
Petitioners, who all claim to be 20 years old, argue that the postponement of the May 6, 2002 SK elections
disenfranchises them, preventing them from voting and being voted for in the SK elections. Petitioners theory is that
if the SK elections were postponed to a date later than May 6, 2002, the postponement would disqualify from SK
membership youths who will turn 21 years old between May 6, 2002 and the date of the new SK
elections. Petitioners claim that a reduction in the SK membership age to 15 but less than 18 years of age from the
then membership age of 15 but not more than 21 years of age would disqualify about seven million youths. The
public respondents failure to hold the elections on May 6, 2002 would prejudice petitioners and other youths
similarly situated.

Thus, petitioners instituted this petition to: (1) compel public respondents to hold the SK elections on May 6, 2002
and should it be postponed, the SK elections should be held not later than July 15, 2002; (2) prevent public
respondents from passing laws and issuing resolutions and orders that would lower the membership age in the SK;
and (3) compel public respondents to allow petitioners and those who have turned more than 21 years old on May 6,
2002 to participate in any re-scheduled SK elections.

The Courts power of judicial review may be exercised in constitutional cases only if all the following requisites are
complied with, namely: (1) the existence of an actual and appropriate case or controversy; (2) a personal and
substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question is the lis mota of the case.[21]

In the instant case, there is no actual controversy requiring the exercise of the power of judicial review. While
seeking to prevent a postponement of the May 6, 2002 SK elections, petitioners are nevertheless amenable to a
resetting of the SK elections to any date not later than July 15, 2002. RA No. 9164 has reset the SK elections to July
15, 2002, a date acceptable to petitioners. With respect to the date of the SK elections, there is therefore no actual
controversy requiring judicial intervention.

Petitioners prayer to prevent Congress from enacting into law a proposed bill lowering the membership age in the
SK does not present an actual justiciable controversy. A proposed bill is not subject to judicial review because it is
not a law. A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill,
having no legal effect, violates no constitutional right or duty. The Court has no power to declare a proposed bill
constitutional or unconstitutional because that would be in the nature of rendering an advisory opinion on a
proposed act of Congress.The power of judicial review cannot be exercised in vacuo.[22] The second paragraph of
Section 1, Article VIII of the Constitution states

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)

Thus, there can be no justiciable controversy involving the constitutionality of a proposed bill. The Court can
exercise its power of judicial review only after a law is enacted, not before.

Under the separation of powers, the Court cannot restrain Congress from passing any law, or from setting into
motion the legislative mill according to its internal rules. Thus, the following acts of Congress in the exercise of its
legislative powers are not subject to judicial restraint: the filing of bills by members of Congress, the approval of bills
by each chamber of Congress, the reconciliation by the Bicameral Committee of approved bills, and the eventual
approval into law of the reconciled bills by each chamber of Congress. Absent a clear violation of specific
constitutional limitations or of constitutional rights of private parties, the Court cannot exercise its power of judicial
review over the internal processes or procedures of Congress.[23]

The Court has also no power to dictate to Congress the object or subject of bills that Congress should enact into
law. The judicial power to review the constitutionality of laws does not include the power to prescribe to Congress
what laws to enact. The Court has no power to compel Congress by mandamus to enact a law allowing petitioners,
regardless of their age, to vote and be voted for in the July 15, 2002 SK elections. To do so would destroy the
delicate system of checks and balances finely crafted by the Constitution for the three co-equal, coordinate and
independent branches of government.

Under RA No. 9164, Congress merely restored the age requirement in PD No. 684, the original charter of the SK,
which fixed the maximum age for membership in the SK to youths less than 18 years old. Petitioners do not have a
vested right to the permanence of the age requirement under Section 424 of the Local Government Code of
1991. Every law passed by Congress is always subject to amendment or repeal by Congress. The Court cannot
restrain Congress from amending or repealing laws, for the power to make laws includes the power to change the
laws.[24]

The Court cannot also direct the Comelec to allow over-aged voters to vote or be voted for in an election that is
limited under RA No. 9164 to youths at least 15 but less than 18 years old. A law is needed to allow all those who
have turned more than 21 years old on or after May 6, 2002 to participate in the July 15, 2002 SK elections. Youths
from 18 to 21 years old as of May 6, 2002 are also no longer SK members, and cannot participate in the July 15,
2002 SK elections. Congress will have to decide whether to enact an amendatory law. Petitioners remedy is
legislation, not judicial intervention.

Petitioners have no personal and substantial interest in maintaining this suit. A party must show that he has been, or
is about to be denied some personal right or privilege to which he is lawfully entitled.[25] A party must also show that
he has a real interest in the suit. By real interest is meant a present substantial interest, as distinguished from a
mere expectancy or future, contingent, subordinate, or inconsequential interest.[26]

In the instant case, petitioners seek to enforce a right originally conferred by law on those who were at least 15 but
not more than 21 years old. Now, with the passage of RA No. 9164, this right is limited to those who on the date of
the SK elections are at least 15 but less than 18 years old. The new law restricts membership in the SK to this
specific age group. Not falling within this classification, petitioners have ceased to be members of the SK and are no
longer qualified to participate in the July 15, 2002 SK elections. Plainly, petitioners no longer have a personal and
substantial interest in the SK elections.

This petition does not raise any constitutional issue. At the time petitioners filed this petition, RA No. 9164, which
reset the SK elections and reduced the age requirement for SK membership, was not yet enacted into law. After the
passage of RA No. 9164, petitioners failed to assail any provision in RA No. 9164 that could be unconstitutional. To
grant petitioners prayer to be allowed to vote and be voted for in the July 15, 2002 SK elections necessitates
assailing the constitutionality of RA No. 9164. This, petitioners have not done. The Court will not strike down a law
unless its constitutionality is properly raised in an appropriate action and adequately argued.[27]

The only semblance of a constitutional issue, albeit erroneous, that petitioners raise is their claim that SK
membership is a property right within the meaning of the Constitution.[28] Since certain public offices are reserved for
SK officers, petitioners also claim a constitutionally protected opportunity to occupy these public offices. In
petitioners own words, they and others similarly situated stand to lose their opportunity to work in the government
positions reserved for SK members or officers.[29] Under the Local Government Code of 1991, the president of the
federation of SK organizations in a municipality, city or province is an ex-officio member of the municipal council, city
council or provincial board, respectively.[30] The chairperson of the SK in the barangay is an ex-officio member of the
Sangguniang Barangay.[31] The president of the national federation of SK organizations is an ex-officio member of
the National Youth Commission, with rank of a Department Assistant Secretary.[32]

Congress exercises the power to prescribe the qualifications for SK membership. One who is no longer qualified
because of an amendment in the law cannot complain of being deprived of a proprietary right to SK
membership. Only those who qualify as SK members can contest, based on a statutory right, any act disqualifying
them from SK membership or from voting in the SK elections.SK membership is not a property right protected by the
Constitution because it is a mere statutory right conferred by law. Congress may amend at any time the law to
change or even withdraw the statutory right.

A public office is not a property right. As the Constitution expressly states, a [P]ublic office is a public trust.[33] No
one has a vested right to any public office, much less a vested right to an expectancy of holding a public
office. In Cornejo v. Gabriel,[34] decided in 1920, the Court already ruled:

Again, for this petition to come under the due process of law prohibition, it would be necessary to consider an office
a property. It is, however, well settled x x x that a public office is not property within the sense of the
constitutional guaranties of due process of law, but is a public trust or agency. x x x The basic idea of the
government x x x is that of a popular representative government, the officers being mere agents and not rulers of
the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every
officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people he
represents. (Emphasis supplied)

Petitioners, who apparently desire to hold public office, should realize from the very start that no one has a
proprietary right to public office. While the law makes an SK officer an ex-officiomember of a local government
legislative council, the law does not confer on petitioners a proprietary right or even a proprietary expectancy to sit in
local legislative councils. The constitutional principle of a public office as a public trust precludes any proprietary
claim to public office. Even the State policy directing equal access to opportunities for public service[35] cannot
bestow on petitioners a proprietary right to SK membership or a proprietary expectancy to ex-officio public offices.

Moreover, while the State policy is to encourage the youths involvement in public affairs,[36] this policy refers to
those who belong to the class of people defined as the youth. Congress has the power to define who are the youth
qualified to join the SK, which itself is a creation of Congress. Those who do not qualify because they are past the
age group defined as the youth cannot insist on being part of the youth. In government service, once an employee
reaches mandatory retirement age, he cannot invoke any property right to cling to his office. In the same manner,
since petitioners are now past the maximum age for membership in the SK, they cannot invoke any property right to
cling to their SK membership.

The petition must also fail because no grave abuse of discretion attended the postponement of the SK elections. RA
No. 9164 is now the law that prescribes the qualifications of candidates and voters for the SK elections. This law
also fixes the date of the SK elections. Petitioners are not even assailing the constitutionality of RA No. 9164. RA
No. 9164 enjoys the presumption of constitutionality and will apply to the July 15, 2002 SK elections.

Petitioners have not shown that the Comelec acted illegally or with grave abuse of discretion in recommending to
Congress the postponement of the SK elections. The very evidence relied upon by petitioners contradict their
allegation of illegality. The evidence consist of the following: (1) Comelec en banc Resolution No. 4763 dated
February 5, 2002 that recommended the postponement of the SK elections to 2003; (2) the letter of then Comelec
Chairman Benipayo addressed to the Speaker of the House of Representatives and the President of the Senate;
and (3) the Conference Committee Report consolidating Senate Bill No. 2050 and House Bill No. 4456.
The Comelec exercised its power and duty to enforce and administer all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum and recall [37] and to recommend to Congress effective measures to
minimize election spending.[38] The Comelecs acts enjoy the presumption of regularity in the performance of official
duties.[39] These acts cannot constitute proof, as claimed by petitioners, that there exists a connivance and
conspiracy (among) respondents in contravention of the present law. As the Court held in Pangkat Laguna v.
Comelec,[40] the Comelec, as the government agency tasked with the enforcement and administration of elections
laws, is entitled to the presumption of regularity of official acts with respect to the elections.

The 1987 Constitution imposes upon the Comelec the duty of enforcing and administering all laws and regulations
relative to the conduct of elections. Petitioners failed to prove that the Comelec committed grave abuse of discretion
in recommending to Congress the postponement of the May 6, 2002 SK elections. The evidence cited by petitioners
even establish that the Comelec has demonstrated an earnest effort to address the practical problems in holding the
SK elections on May 6, 2002. The presumption remains that the decision of the Comelec to recommend to
Congress the postponement of the elections was made in good faith in the regular course of its official duties.

Grave abuse of discretion is such capricious and whimsical exercise of judgment that is patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. [41] Public respondents
having acted strictly pursuant to their constitutional powers and duties, we find no grave abuse of discretion in their
assailed acts.

Petitioners contend that the postponement of the SK elections would allow the incumbent SK officers to perpetuate
themselves in power, depriving other youths of the opportunity to serve in elective SK positions. This argument
deserves scant consideration. While RA No. 9164 contains a hold-over provision, incumbent SK officials can remain
in office only until their successors have been elected or qualified. On July 15, 2002, when the SK elections are
held, the hold-over period expires and all incumbent SK officials automatically cease to hold their SK offices and
their ex-officio public offices.

In sum, petitioners have no personal and substantial interest in maintaining this suit. This petition presents no actual
justiciable controversy. Petitioners do not cite any provision of law that is alleged to be unconstitutional. Lastly, we
find no grave abuse of discretion on the part of public respondents.

WHEREFORE, the petition is DISMISSED for utter lack of merit.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Austria-Martinez, and Corona, JJ., concur.
 EN BANC

G.R. No. 132986 May 19, 2004

JUAN PONCE ENRILE, petitioner,

vs.
SENATE ELECTORAL TRIBUNAL and AQUILINO PIMENTEL, JR., respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing for
having been issued with grave abuse of discretion Resolution 97-221 denying petitioner’s Motion to Annul/Set Aside
Partial Results in Pimentel’s Protest and to Conduct Another Appreciation of Ballots in the Presence of All Parties;
and Resolution No. 98-022 denying his motion for reconsideration in SET Case No. 001-95, "Aquilino Pimentel, Jr.
vs. Gregorio B. Honasan, et al."

The antecedent facts of the case are as follows:

On January 20, 1995, Senator Aquilino Pimentel, private respondent herein, filed with the Senate Electoral Tribunal
(SET) an election protest against Senator Juan Ponce Enrile, petitioner, and other senatorial candidates who won in
the May 1995 senatorial elections, docketed as SET Case No. 001-95. On June 30, 1995, petitioner filed his answer
with counter-protest.

Issues having been joined, the SET required the parties to submit the list of pilot precincts numbering not more that
25% of the total precincts involved in respondent’s protest. Subsequently, the SET conducted the revision of ballots
in the pilot precincts, namely: Paoay, Ilocos Norte; Tarlac, Tarlac; Tawi-Tawi; Maguindanao; Sulu; Bulacan; Lanao
del Sur; Lanao del Norte; Pasig City; Biñan, Laguna; Cuyapo, Nueva Ecija; Pangasinan; Agusan del Sur and
Agusan del Norte. Thereafter, the SET directed the parties to submit their evidence and memoranda.

On August 21, 1997, the SET, without resolving the election protest, held a press conference at the Supreme Court
Session Hall announcing the partial and tentative results of the revision of ballots in the pilot precincts. A press
release entitled "Partial Results in Pimentel’s Protest"3 was then issued accompanied by the tabulation of votes for
the parties. In the said tabulation, the name of petitioner dropped from number 11 to number 15.4

On September 24, 1997, petitioner filed a "Motion to Set Aside Partial Results in Pimentel’s Protest and to Conduct
Another Appreciation of Ballots in the Presence of All Parties."5 Petitioner alleged that the partial results were
manifestly erroneous. The SET then issued Resolution No. 97-20 requiring all the parties to file their respective
comments on petitioner’s motion. Only respondent and Senator Nikki Coseteng filed their separate comments
alleging, among others, that petitioner’s motion is premature considering that the SET has not yet resolved
respondent’s election protest.

In its assailed Resolution No. 97-22, the SET admitted there was an "oversight," hence, the tally of votes for Paoay,
Ilocos Norte should be made. Consequently, the 30,000 votes deducted by the SET from those garnered by
petitioner were "given back to him."

Nevertheless, the SET denied petitioner’s motion, holding that there is no sufficient basis to discard its partial
tabulation.

"The Tribunal took pains in reviewing its records and hereby acknowledges that an adjustment should be made in
the tally of votes for the Municipality of Paoay, Ilocos Norte. However, the Tribunal alone should not be faulted for
this oversight. Although the Regional Tally for Region I was offered in evidence by the Protestant, Protestee Enrile,
far from claming that the same reflected the accurate number of votes garnered by the senatorial candidates, even
went to the extent of objecting to its admissibility.

In the province of Ilocos Norte, the vote total of Enrile in the SOV/M of 65,343 is listed in the PCOC at 95,343 or an
increase of 30,000 votes. As unearthed, Enrile’s votes had already been corrected by the COMELEC in the
Regional Tally such that the 30,000 votes deducted by the Tribunal must be, as it is hereby, given back to him.
Similarly, Mitra regains the 20,000 votes deducted from him in this province.

These corrections, notwithstanding, the Tribunal finds no sufficient basis to discard its partial tabulation. In fact, the
ranking of the parties is not at all affected by the omission.
Finally, to grant Enrile’s prayer to have himself represented in the appreciation of ballots by the Tribunal amounts to
an encroachment on judicial functions. Needless to state, appreciation of evidence is the Tribunal’s exclusive
domain."

Petitioner filed his motion for reconsideration but was denied by the SET in its Resolution No. 98-02.

Hence, this petition, petitioner contending that:

"A.

PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR

EXCESS OF JURISDICTION IN RULING THAT NO SIFFICIENT BASIS EXISTS TO ANNUL THE MANIFESTLY
ERRONEOUS TABULATION OF THE RESULTS OF REVISION AND APPRECIATION OF BALLOTS.

B.

PUBLIC RESPONDENT COMMITTED PATENT AND GROSS ERROR IN RECTIFYING THE RESULTS OF THE
PHYSICAL COUNT, AS REFELCTED IN THE REVISION RPORTS BY USING OTHER ELECTIOB DOCUMENTS.

C.

PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RELEASED "PARTIAL AND
TENTATIVE" RESULTS WHICH CAUSED GRAVE PREJUDICE TO HEREIN PETITIONER.

D.

THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT PETITIONER IS
NOT ENTITLED TO BE HEARD IN THE APPRECIATION PROCEEDINGS."

The main issue for our resolution is whether or not the SET committed grave abuse of discretion in denying
petitioner’s "Motion To Set Aside Partial Results in Pimentel’s Protest and to Conduct Another Appreciation of
Ballots in the Presence of all Parties."

Petitioner contends that the partial results released by the SET are erroneous because they are improbable and not
supported by evidence.

In their comments, both respondent and the Solicitor General maintain that the SET did not commit grave abuse of
discretion in issuing the challenged Resolutions. Furthermore, the Solicitor General asserts that the "present petition
has become moot and academic because the tenure of the contested senatorial position subject of respondent’s
protest where the assailed Resolutions originated expired on June 30, 1998."

In its assailed Resolution No. 97-22, the SET explained the process in determining the partial results, thus:

"The entire process in determining the parties’ votes in the pilot municipalities is explained in the corresponding
written reports thereon shortly to be completed. In the meantime, let it be stressed that the proceedings conducted
by the Tribunal with respect to the pilot areas of Protestant Pimentel consisted of several stages or steps, to wit:

a. Recount and revision of the ballots where the parties are represented;

b. Recount and revision of the ballots where the parties are represented;

c. Examination of the different election documents including the verification of the accuracy of the addition of the
figures appearing on Statement of Votes by Precincts (SOV/M or SOV/C); and

d. Comparison of the figures appearing on the SOV/P, the Municipal or City Certificate of Canvass (MCOC or
CCOPC), the SOV/M or SOV/C and the Provincial Certificate of Canvass (PCOC).

From the arguments of protestee Enrile, it is apparent that only the revision of ballots and the SOV/P were taken into
account. Worse, he speculated on the rulings made in the appreciation of ballots.

xxx

Put differently, the number of ballots objected to against a particular party is not necessarily the maximum number of
votes that may be deducted from the said party, in the same way as the number of ballots/votes claimed by a party
is not necessarily the maximum number of votes that may be credited to said party. As a result of the appreciation of
the contested ballots, the parties may be deducted more votes than the number of ballots specifically objected to
against them, or may be credited with additional votes even if the parties made no claims.

Aside from the ruling on the claims and objections, the Tribunal likewise verified the accuracy of the counting of
ballots done by the revision teams. Errors in the revision reports were rectified which also resulted in the addition to,
or deduction of votes from the parties.

Consistent with the allegation of Protestant Pimentel that ‘Operation Dagdag-Bawas’ was affected through the
padding or deduction of votes in the different election documents, the Tribunal also conducted accuracy checks on
the addition of the figures appearing on the SOV/P and the SOV/M. The verification process disclosed errors which
have resulted in the addition or deduction of votes from the parties.

To ensure that the correct figures were recorded from one election document to the other, the Tribunal compared
the figures appearing on the SOV/P vis-à-vis the MCOC/CCOC; the MCOC/CCOC with the PCOC. Where the
discrepancies in the figures were noted, the corresponding adjustments were made which resulted in the addition or
deduction of votes from the parties.

Thus, while the votes of the parties in the municipal level are determined through the counting and appreciation of
the ballots, the votes of the parties on the provincial level are also adjusted on the basis of the comparison of the
different election documents. The written report/decision on the pilot precincts, soon to be released, contains the
specifics and sets forth in detail the reason for each addition or deduction of votes."

The above process clearly shows why the figures presented by petitioner in his motion do not tally with the figures
released by the SET.

At any rate, we agree with the Solicitor General that the petition has become moot and academic. The tenure of the
contested senatorial position subject of this petition expired as early as June 30, 1998.

A case becomes moot and academic when there is no more actual controversy between the parties or no useful
purpose can be served in passing upon the merits.6

In Garcia vs. COMELEC,7 we held that "where the issues have become moot and academic, there is no justiciable
controversy, thereby rendering the resolution of the same of no practical use or value."

Likewise, in Gancho-on vs. Secretary of Labor and Employment,8 we ruled:

"It is a rule of universal application that courts of justice constituted to pass upon substantial rights will not consider
questions in which no actual interests are involved; they decline jurisdiction of moot cases. And where the issue has
become moot and academic, there is no justiciable controversy, so that a declaration thereon would be of no
practical use or value. There is no actual substantial relief to which petitioners would be entitled and which would be
negated by the dismissal of the petition."

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Davide, Jr.*, Puno, Vitug**, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-
Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-45685 November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU UNJIENG, respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for respondent Cu
Unjieng.
No appearance for respondent Judge.

LAUREL, J.:

This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of certiorari and of
prohibition to the Court of First Instance of Manila so that this court may review the actuations of the aforesaid Court
of First Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et
al.", more particularly the application of the defendant Mariano Cu Unjieng therein for probation under the provisions
of Act No. 4221, and thereafter prohibit the said Court of First Instance from taking any further action or entertaining
further the aforementioned application for probation, to the end that the defendant Mariano Cu Unjieng may be
forthwith committed to prison in accordance with the final judgment of conviction rendered by this court in said case
(G. R. No. 41200). 1

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are
respectively the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of the
defendants, in the criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.",
criminal case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this court. Respondent
herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of First Instance of Manila,
who heard the application of the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.

The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October 15,
1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case as private prosecutor.
After a protracted trial unparalleled in the annals of Philippine jurisprudence both in the length of time spent by the
court as well as in the volume in the testimony and the bulk of the exhibits presented, the Court of First Instance of
Manila, on January 8, 1934, rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to
indeterminate penalty ranging from four years and two months of prision correccional to eight years of prision
mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and Shanghai
Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence to an indeterminate penalty
of from five years and six months of prision correccional to seven years, six months and twenty-seven days
of prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng filed a motion for
reconsideration and four successive motions for new trial which were denied on December 17, 1935, and final
judgment was accordingly entered on December 18, 1935. The defendant thereupon sought to have the case
elevated on certiorari to the Supreme Court of the United States but the latter denied the petition
for certiorari in November, 1936. This court, on November 24, 1936, denied the petition subsequently
filed by the defendant for leave to file a second alternative motion for reconsideration or new trial and thereafter
remanded the case to the court of origin for execution of the judgment.

The instant proceedings have to do with the application for probation filed by the herein respondent Mariano Cu
Unjieng on November 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunct
Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of
the crime of which he was convicted, that he has no criminal record and that he would observe good conduct in the
future. The Court of First Instance of Manila, Judge Pedro Tuason presiding, referred the application for probation of
the Insular Probation Office which recommended denial of the same June 18, 1937. Thereafter, the Court of First
Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.

On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the herein
respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, among
other things, that Act No. 4221, assuming that it has not been repealed by section 2 of Article XV of the Constitution,
is nevertheless violative of section 1, subsection (1), Article III of the Constitution guaranteeing equal protection of
the laws for the reason that its applicability is not uniform throughout the Islands and because section 11 of the said
Act endows the provincial boards with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a supplementary opposition on April 19,
1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power to
the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition
of the private prosecution except with respect to the questions raised concerning the constitutionality of Act No.
4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "las pruebas
no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los hechos probados no
son inconsistentes o incongrentes con su inocencia" and concludes that the herein respondent Mariano Cu Unjieng
"es inocente por duda racional" of the crime of which he stands convicted by this court in G.R. No. 41200, but
denying the latter's petition for probation for the reason that:

. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han
expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la opinion
publica, atizada por los recelos y las suspicacias, podria levantarse indignada contra un sistema de probacion que
permite atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia de las
decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes, en menoscabo del interes
publico que demanda el respeto de las leyes y del veredicto judicial.

On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the resolution denying
probation and a notice of intention to file a motion for reconsideration. An alternative motion for reconsideration or
new trial was filed by counsel on July 13, 1937. This was supplemented by an additional motion for reconsideration
submitted on July 14, 1937. The aforesaid motions were set for hearing on July 31, 1937, but said hearing was
postponed at the petition of counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene
in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court.
Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a petition for leave to
withdraw his appearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae was
circulated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed
the same "without mature deliberation and purely as a matter of courtesy to the person who invited me (him)."

On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of
execution of the judgment of this court in said case and forthwith to commit the herein respondent Mariano Cu
Unjieng to jail in obedience to said judgment.

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici
curiae aforementioned, asking that a date be set for a hearing of the same and that, at all events, said motion
should be denied with respect to certain attorneys signing the same who were members of the legal staff of the
several counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an
order requiring all parties including the movants for intervention as amici curiae to appear before the court on August
14, 1937. On the last-mentioned date, the Fiscal of the City of Manila moved for the hearing of his motion for
execution of judgment in preference to the motion for leave to intervene as amici curiae but, upon objection of
counsel for Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The respondent
judge thereupon set the hearing of the motion for execution on August 21, 1937, but proceeded to consider the
motion for leave to intervene as amici curiae as in order. Evidence as to the circumstances under which said motion
for leave to intervene as amici curiae was signed and submitted to court was to have been heard on August 19,
1937. But at this juncture, herein petitioners came to this court on extraordinary legal process to put an end to what
they alleged was an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign
of the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this Honorable Court on
him, exposing the courts to criticism and ridicule because of the apparent inability of the judicial machinery to make
effective a final judgment of this court imposed on the defendant Mariano Cu Unjieng."

The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary
restraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein petitioners
allege that the respondent judge has acted without jurisdiction or in excess of his jurisdiction:

I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under probation for the
following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the provinces of
the Philippines; it nowhere states that it is to be made applicable to chartered cities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a special
provision, the term "province" may be construed to include the City of Manila for the purpose of giving effect to laws
of general application, it is also true that Act No. 4221 is not a law of general application because it is made to apply
only to those provinces in which the respective provincial boards shall have provided for the salary of a probation
officer.

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it
because it has provided for the salary of a probation officer as required by section 11 thereof; it being immaterial
that there is an Insular Probation Officer willing to act for the City of Manila, said Probation Officer provided for in
section 10 of Act No. 4221 being different and distinct from the Probation Officer provided for in section 11 of the
same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the application for probation of the
respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excess thereof in continuing to
entertain the motion for reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had
promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's application for probation, for the reason
that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or denying of
applications for probation.

(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it became
final and executory at the moment of its rendition.

(3) No right on appeal exists in such cases.

(4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for which he was
convicted by final judgment of this court, which finding is not only presumptuous but without foundation in fact and in
law, and is furthermore in contempt of this court and a violation of the respondent's oath of office as ad interim judge
of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which became imperative when he
issued his order of June 28, 1937, denying the application for probation, to commit his co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of law.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking Corporation
further contends that Act No. 4221 of the Philippine Legislature providing for a system of probation for persons
eighteen years of age or over who are convicted of crime, is unconstitutional because it is violative of section 1,
subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal protection of the laws because it
confers upon the provincial board of its province the absolute discretion to make said law operative or otherwise in
their respective provinces, because it constitutes an unlawful and improper delegation to the provincial boards of the
several provinces of the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by
the Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it gives the provincial
boards, in contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to
enlarge the powers of the Court of First Instance of different provinces without uniformity. In another supplementary
petition dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of
the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding the
constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further elaborated on the theory
that probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusive power of the
Chief Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in
which he contended that Act No. 4221 not only encroaches upon the pardoning power to the executive, but also
constitute an unwarranted delegation of legislative power and a denial of the equal protection of the laws. On
October 9, 1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of
the People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking
Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other contending
that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint
memorandum was filed by the same persons on the same day, October 9, 1937, alleging that Act No. 4221 is
unconstitutional because it denies the equal protection of the laws and constitutes an unlawful delegation of
legislative power and, further, that the whole Act is void: that the Commonwealth is not estopped from questioning
the validity of its laws; that the private prosecution may intervene in probation proceedings and may attack the
probation law as unconstitutional; and that this court may pass upon the constitutional question in prohibition
proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums, challenge
each and every one of the foregoing proposition raised by the petitioners.

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of certiorari or of
prohibition.

(2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same remedy
prayed for by them before the trial court and was still pending resolution before the trial court when the present
petition was filed with this court.

(3) That the petitioners having themselves raised the question as to the execution of judgment before the trial court,
said trial court has acquired exclusive jurisdiction to resolve the same under the theory that its resolution denying
probation is unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide the
question as to whether or not the execution will lie, this court nevertheless cannot exercise said jurisdiction while the
Court of First Instance has assumed jurisdiction over the same upon motion of herein petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction
over the case and elevate the proceedings to this court, should not be tolerated because it impairs the authority and
dignity of the trial court which court while sitting in the probation cases is "a court of limited jurisdiction but of great
dignity."

(6) That under the supposition that this court has jurisdiction to resolve the question submitted to and pending
resolution by the trial court, the present action would not lie because the resolution of the trial court denying
probation is appealable; for although the Probation Law does not specifically provide that an applicant for probation
may appeal from a resolution of the Court of First Instance denying probation, still it is a general rule in this
jurisdiction that a final order, resolution or decision of an inferior court is appealable to the superior court.

(7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being
appealable, the same had not become final and executory for the reason that the said respondent had filed an
alternative motion for reconsideration and new trial within the requisite period of fifteen days, which motion the trial
court was able to resolve in view of the restraining order improvidently and erroneously issued by this
court.lawphi1.net

(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court denying
probation is not final and unappealable when he presented his answer to the motion for reconsideration and agreed
to the postponement of the hearing of the said motion.

(9) That under the supposition that the order of the trial court denying probation is not appealable, it is incumbent
upon the accused to file an action for the issuance of the writ of certiorari with mandamus, it appearing that the trial
court, although it believed that the accused was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a petition for certiorari grounded on an irregular
exercise of jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file a motion for
reconsideration specifying the error committed so that the trial court could have an opportunity to correct or cure the
same.

(10) That on hypothesis that the resolution of this court is not appealable, the trial court retains its jurisdiction within
a reasonable time to correct or modify it in accordance with law and justice; that this power to alter or modify an
order or resolution is inherent in the courts and may be exercise either motu proprio or upon petition of the proper
party, the petition in the latter case taking the form of a motion for reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, said court
cannot order execution of the same while it is on appeal, for then the appeal would not be availing because the
doors of probation will be closed from the moment the accused commences to serve his sentence (Act No. 4221,
sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).

In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 is
constitutional because, contrary to the allegations of the petitioners, it does not constitute an undue delegation of
legislative power, does not infringe the equal protection clause of the Constitution, and does not encroach upon the
pardoning power of the Executive. In an additional memorandum filed on the same date, counsel for the
respondents reiterate the view that section 11 of Act No. 4221 is free from constitutional objections and contend, in
addition, that the private prosecution may not intervene in probation proceedings, much less question the validity of
Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of the
Act; that the validity of Act cannot be attacked for the first time before this court; that probation in unavailable; and
that, in any event, section 11 of the Act No. 4221 is separable from the rest of the Act. The last memorandum for the
respondent Mariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of this
court and filed anew on November 5, 1937. This memorandum elaborates on some of the points raised by
the respondents and refutes those brought up by the petitioners.

In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that the court
below, in passing upon the merits of the application of the respondent Mariano Cu Unjieng and in denying said
application assumed the task not only of considering the merits of the application, but of passing upon the culpability
of the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies
guilt be final judgment. While a probation case may look into the circumstances attending the commission of the
offense, this does not authorize it to reverse the findings and conclusive of this court, either directly or indirectly,
especially wherefrom its own admission reliance was merely had on the printed briefs, averments, and pleadings of
the parties. As already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in
subsequent cases, "if each and every Court of First Instance could enjoy the privilege of overruling decisions of the
Supreme Court, there would be no end to litigation, and judicial chaos would result." A becoming modesty of inferior
courts demands conscious realization of the position that they occupy in the interrelation and operation of the
intergrated judicial system of the nation.

After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents, this
court prefers to cut the Gordian knot and take up at once the two fundamental questions presented, namely, (1)
whether or not the constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2) in the
affirmative, whether or not said Act is constitutional. Considerations of these issues will involve a discussion of
certain incidental questions raised by the parties.

To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a well-
settled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that
question is properly raised and presented inappropriate cases and is necessary to a determination of the case; i.e.,
the issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil.,
563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions. Nevertheless,
resort may be made to extraordinary legal remedies, particularly where the remedies in the ordinary course of law
even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this
court held that the question of the constitutionality of a statute may be raised by the petitioner
in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of the Philippine Islands vs.
Springer ([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189;
72 Law. ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo warranto brought
in the name of the Government of the Philippines. It has also been held that the constitutionality of a statute may be
questioned in habeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although
there are authorities to the contrary; on an application for injunction to restrain action under the challenged statute
(mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction
where the determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.) The
same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271
U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R.,
854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra,
decided by this court twelve years ago was, like the present one, an original action for certiorari and prohibition. The
constitutionality of Act No. 2972, popularly known as the Chinese Bookkeeping Law, was there challenged by the
petitioners, and the constitutional issue was not met squarely by the respondent in a demurrer. A point was raised
"relating to the propriety of the constitutional question being decided in original proceedings in prohibition." This
court decided to take up the constitutional question and, with two justices dissenting, held that Act No. 2972 was
constitutional. The case was elevated on writ of certiorari to the Supreme Court of the United States which reversed
the judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of
jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said:

By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is granted
concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, and original
jurisdiction over courts of first instance, when such courts are exercising functions without or in excess of their
jurisdiction. It has been held by that court that the question of the validity of the criminal statute must usually be
raised by a defendant in the trial court and be carried regularly in review to the Supreme Court. (Cadwallader-
Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a new act seriously affected numerous
persons and extensive property rights, and was likely to cause a multiplicity of actions, the Supreme Court exercised
its discretion to bring the issue to the act's validity promptly before it and decide in the interest of the orderly
administration of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52 Law ed.,
714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed.,
131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law.
ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction
was raise by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both parties ask a
decision on the merits. In view of the broad powers in prohibition granted to that court under the Island Code, we
acquiesce in the desire of the parties.

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an
inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally
vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in the cases, is
that the merit of prohibition will not lie whether the inferior court has jurisdiction independent of the statute the
constitutionality of which is questioned, because in such cases the interior court having jurisdiction may itself
determine the constitutionality of the statute, and its decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But
where the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be
prevented by the writ of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala.,
42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs.
Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5
Dana, 19; 30 Am. Dec., 669.)

Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 which
prescribes in detailed manner the procedure for granting probation to accused persons after their conviction has
become final and before they have served their sentence. It is true that at common law the authority of the courts to
suspend temporarily the execution of the sentence is recognized and, according to a number of state courts,
including those of Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts
(Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W.,
497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616).
But, in the leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37
Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States expressed the opinion that under
the common law the power of the court was limited to temporary suspension, and brushed aside the contention as
to inherent judicial power saying, through Chief Justice White:

Indisputably under our constitutional system the right to try offenses against the criminal laws and upon conviction to
impose the punishment provided by law is judicial, and it is equally to be conceded that, in exerting the powers
vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial,
discretion to enable them to wisely exert their authority. But these concessions afford no ground for the contention
as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a
discretion to permanently refuse to do so. And the effect of the proposition urged upon the distribution of powers
made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to
define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial
discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the
scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained according
to the methods by it provided belongs to the executive department.

Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First Instance of
Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power to suspend the
execution of sentences pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he said,
"that in the absence of statutory authority, it does not lie within the power of the courts to grant such suspensions."
(at p. 278.) Both petitioner and respondents are correct, therefore, when they argue that a Court of First Instance
sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred
exclusively by Act No. 4221 of the Philippine Legislature.

It is, of course, true that the constitutionality of a statute will not be considered on application for prohibition where
the question has not been properly brought to the attention of the court by objection of some kind (Hill vs. Tarver
[1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at
bar, it is unquestionable that the constitutional issue has been squarely presented not only before this court by the
petitioners but also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera, however,
acting as judge of the court below, declined to pass upon the question on the ground that the private prosecutor, not
being a party whose rights are affected by the statute, may not raise said question. The respondent judge cited
Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex
County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider
any attack made on the constitutionality of a statute by one who has no interest in defeating it because his rights are
not affected by its operation. The respondent judge further stated that it may not motu proprio take up the
constitutional question and, agreeing with Cooley that "the power to declare a legislative enactment void is one
which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath decline the responsibility" (Constitutional
Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore,
the court a quo admits that the constitutional question was raised before it, it refused to consider the question solely
because it was not raised by a proper party. Respondents herein reiterates this view. The argument is advanced
that the private prosecution has no personality to appear in the hearing of the application for probation of defendant
Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower court. Although, as a general rule, only those who are parties to
a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the
decree pronounced by a court without jurisdiction is void, where the jurisdiction of the court depends on the validity
of the statute in question, the issue of the constitutionality will be considered on its being brought to the attention of
the court by persons interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were
to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the
issue may not be here raised in an original action of certiorari and prohibitions. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings,
ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J.,
p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that
the general rule admits of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a
question affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.)
Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be
raised for the first time at any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even
in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for
the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case.
(McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis
Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S.
W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time,
where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the
power of this court to consider the constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the
hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the
proper party to raise the constitutional question here — a point we do not now have to decide — we are of the
opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila,
is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity
of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustained,
direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the constitution,
the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set
aside. Of grater import than the damage caused by the illegal expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the
state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50
Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845),
this court declared an act of the legislature unconstitutional in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of
Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to
question the constitutionality of the statute was though, as a general rule, only those who are parties to a suit may
question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree
pronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on the validity of the
statute in question, the issue of constitutionality will be considered on its being brought to the attention of the court
by persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede
that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not
be here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the question of
constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not
be raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also,
Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule
admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting
the constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time
at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has
been held that it is the duty of a court to pass on the constitutional question, though raised for first time on appeal, if
it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs.
Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo.
685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held
that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of
the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the
constitutional question raised for the first time before this court in these proceedings, we turn again and point with
emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai
Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional
question here — a point we do not now have to decide — we are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal
and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the People of the
Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of greater
import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge
the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in
Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an
act of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In
Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan,
through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a
mining corporation, alleging that the statute under which the respondents base their right was unconstitutional
because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by their
representatives; that to an accusation by the people of Michigan of usurpation their government, a statute enacted
by the people of Michigan is an adequate answer. The last proposition is true, but, if the statute relied on in
justification is unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving effect to
justify action under it than if it had never been enacted. The constitution is the supreme law, and to its behests the
courts, the legislature, and the people must bow . . . The legislature and the respondents are not the only parties in
interest upon such constitutional questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence
by a party affected by an unconstitutional act of the legislature: "The people have a deep and vested interest in
maintaining all the constitutional limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum.,
314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by the
Attorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of the question whether
or not the state may bring the action, the Supreme Court of Kansas said:

. . . the state is a proper party — indeed, the proper party — to bring this action. The state is always interested
where the integrity of its Constitution or statutes is involved.

"It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individual plaintiff
must, show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)

Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or county attorney,
may exercise his bet judgment as to what sort of action he will bring to have the matter determined, either by quo
warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to
compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006;
State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board
of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E.,
1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11).
In the case last cited, the Supreme Court of Luisiana said:

It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of enforcing the
laws, has no right to plead that a law is unconstitutional. In support of the argument three decisions are cited, viz.:
State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls,
Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc.
vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district
attorney to plead that a statute is unconstitutional if he finds if in conflict with one which it is his duty to enforce. In
State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should not, merely because he believed
a certain statute to be unconstitutional forbid the district attorney to file a bill of information charging a person with a
violation of the statute. In other words, a judge should not judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision, and unless it must be decided in order to determine the right of
a party litigant. State ex rel. Nicholls, Governor, etc., is authority for the proposition merely that an officer on whom a
statute imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he considers the
statute unconstitutional, and hence in enforcing the statute he is immune from responsibility if the statute be
unconstitutional. State ex rel. Banking Co., etc., is authority for the proposition merely that executive officers, e.g.,
the state auditor and state treasurer, should not decline to perform ministerial duties imposed upon them by a
statute, on the ground that they believe the statute is unconstitutional.

It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the Constitution
of the state. If, in the performance of his duty he finds two statutes in conflict with each other, or one which repeals
another, and if, in his judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other; and, in
order to do so, he is compelled to submit to the court, by way of a plea, that one of the statutes is unconstitutional. If
it were not so, the power of the Legislature would be free from constitutional limitations in the enactment of criminal
laws.

The respondents do not seem to doubt seriously the correctness of the general proposition that the state may
impugn the validity of its laws. They have not cited any authority running clearly in the opposite direction. In fact,
they appear to have proceeded on the assumption that the rule as stated is sound but that it has no application in
the present case, nor may it be invoked by the City Fiscal in behalf of the People of the Philippines, one of the
petitioners herein, the principal reasons being that the validity before this court, that the City Fiscal is estopped from
attacking the validity of the Act and, not authorized challenge the validity of the Act in its application outside said
city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)

The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not been
attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him as
constitutional, is no reason for considering the People of the Philippines estopped from nor assailing its validity. For
courts will pass upon a constitutional questions only when presented before it in bona fide cases for determination,
and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raised
later. The fiscal and all others are justified in relying upon the statute and treating it as valid until it is held void by the
courts in proper cases.

It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to the
resolution of the instant case. For, ". . . while the court will meet the question with firmness, where its decision is
indispensable, it is the part of wisdom, and just respect for the legislature, renders it proper, to waive it, if the case in
which it arises, can be decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447.
Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a constitutional
question is necessary whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev.
Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas.
1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22
Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of
a party is founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs.
Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt
that the respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed.

Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is a
new addition to our statute books and its validity has never before been passed upon by the courts; that may
persons accused and convicted of crime in the City of Manila have applied for probation; that some of them are
already on probation; that more people will likely take advantage of the Probation Act in the future; and that the
respondent Mariano Cu Unjieng has been at large for a period of about four years since his first conviction. All wait
the decision of this court on the constitutional question. Considering, therefore, the importance which the instant
case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S.,
500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444;
Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489;
Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous
situation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousand
merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the
courts, in the interest of the public welfare and for the advancement of public policy, we have determined to overrule
the defense of want of jurisdiction in order that we may decide the main issue. We have here an extraordinary
situation which calls for a relaxation of the general rule." Our ruling on this point was sustained by the Supreme
Court of the United States. A more binding authority in support of the view we have taken can not be found.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly raised.
Now for the main inquiry: Is the Act unconstitutional?

Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. This court,
by clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of the Constitution,
may declare an act of the national legislature invalid because in conflict with the fundamental lay. It will not shirk
from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect to the supreme
law by setting aside a statute in conflict therewith. This is of the essence of judicial duty.

This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be
resolved in favor of the constitutionality of a statute. An act of the legislature approved by the executive, is presumed
to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone
but on the legislature as well. "The question of the validity of every statute is first determined by the legislative
department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser
[1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained
by the sanction of the executive. The members of the Legislature and the Chief Executive have taken an oath to
support the Constitution and it must be presumed that they have been true to this oath and that in enacting and
sanctioning a particular law they did not intend to violate the Constitution. The courts cannot but cautiously exercise
its power to overturn the solemn declarations of two of the three grand departments of the governments. (6 R.C.L.,
p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to reflect the wisdom of the people
as expressed through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts
will not set aside a law as violative of the Constitution except in a clear case. This is a proposition too plain to
require a citation of authorities.

One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact that the
President of the Philippines had already expressed his opinion against the constitutionality of the Probation Act,
adverting that as to the Executive the resolution of this question was a foregone conclusion. Counsel, however,
reiterated his confidence in the integrity and independence of this court. We take notice of the fact that the President
in his message dated September 1, 1937, recommended to the National Assembly the immediate repeal of the
Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality Assembly
repealing the probation Act, subject to certain conditions therein mentioned; but that said bill was vetoed by the
President on September 13, 1937, much against his wish, "to have stricken out from the statute books of the
Commonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to observe in this connection that, in
vetoing the bill referred to, the President exercised his constitutional prerogative. He may express the reasons which
he may deem proper for taking such a step, but his reasons are not binding upon us in the determination of actual
controversies submitted for our determination. Whether or not the Executive should express or in any manner
insinuate his opinion on a matter encompassed within his broad constitutional power of veto but which happens to
be at the same time pending determination in this court is a question of propriety for him exclusively to decide or
determine. Whatever opinion is expressed by him under these circumstances, however, cannot sway our judgment
on way or another and prevent us from taking what in our opinion is the proper course of action to take in a given
case. It if is ever necessary for us to make any vehement affirmance during this formative period of our political
history, it is that we are independent of the Executive no less than of the Legislative department of our government
— independent in the performance of our functions, undeterred by any consideration, free from politics, indifferent to
popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it.

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroaches upon
the pardoning power of the Executive; (2) that its constitutes an undue delegation of legislative power and (3) that it
denies the equal protection of the laws.

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at the time of
the approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-General of the
Philippines "the exclusive power to grant pardons and reprieves and remit fines and forfeitures". This power is now
vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the
Constitution differ in some respects. The adjective "exclusive" found in the Jones Law has been omitted from the
Constitution. Under the Jones Law, as at common law, pardon could be granted any time after the commission of
the offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok
[1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like the President of the
United States, to pardon a person before the facts of the case were fully brought to light. The framers of our
Constitution thought this undesirable and, following most of the state constitutions, provided that the pardoning
power can only be exercised "after conviction". So, too, under the new Constitution, the pardoning power does not
extend to "cases of impeachment". This is also the rule generally followed in the United States (Vide Constitution of
the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of
an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it is not
understood that the king's royal grace is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307;
15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio
St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In England, Judgment on impeachment is not
confined to mere "removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under
the Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment attached by
law to the offense committed. The House of Lords, on a conviction may, by its sentence, inflict capital punishment,
perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offense
committed, together with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our
Constitution also makes specific mention of "commutation" and of the power of the executive to impose, in the
pardons he may grant, such conditions, restrictions and limitations as he may deem proper. Amnesty may be
granted by the President under the Constitution but only with the concurrence of the National Assembly. We need
not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes to state that the
pardoning power has remained essentially the same. The question is: Has the pardoning power of the Chief
Executive under the Jones Law been impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The exercise of the
power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any legislative
restrictions, nor can like power be given by the legislature to any other officer or authority. The coordinate
departments of government have nothing to do with the pardoning power, since no person properly belonging to one
of the departments can exercise any powers appertaining to either of the others except in cases expressly provided
for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power is conferred on the
executive without express or implied limitations, the grant is exclusive, and the legislature can neither exercise such
power itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp.
838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is for that reason
unconstitutional and void. But does it?

In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled in
1916 that an order indefinitely suspending sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61
Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an
exhaustive review of the authorities, expressed the opinion of the court that under the common law the power of the
court was limited to temporary suspension and that the right to suspend sentenced absolutely and permanently was
vested in the executive branch of the government and not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the future is
concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such
other means as the legislative mind may devise, to such judicial discretion as may be adequate to enable courts to
meet by the exercise of an enlarged but wise discretion the infinite variations which may be presented to them for
judgment, recourse must be had Congress whose legislative power on the subject is in the very nature of things
adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National
Probation Association and others to agitate for the enactment by Congress of a federal probation law. Such action
was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an
appropriation to defray the salaries and expenses of a certain number of probation officers chosen by civil service.
(Johnson, Probation for Juveniles and Adults, p. 14.)

In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of
the United States, through Chief Justice Taft, held that when a person sentenced to imprisonment by a district court
has begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925 to grant him
probation even though the term at which sentence was imposed had not yet expired. In this case of Murray, the
constitutionality of the probation Act was not considered but was assumed. The court traced the history of the Act
and quoted from the report of the Committee on the Judiciary of the United States House of Representatives
(Report No. 1377, 68th Congress, 2 Session) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of probation
either, by suspending sentence or by placing the defendants under state probation officers or volunteers. In this
case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72
Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district courts to suspend sentenced. In the same
opinion the court pointed out the necessity for action by Congress if the courts were to exercise probation powers in
the future . . .

Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a bill was
favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciary Committee again
favorably reported a probation bill to the House, but it was never reached for definite action.

If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatment of those
convicted of violations of its criminal laws in harmony with that of the states of the Union. At the present time every
state has a probation law, and in all but twelve states the law applies both to adult and juvenile offenders. (see, also,
Johnson, Probation for Juveniles and Adults [1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. United
States supra, the Circuit Court of Appeals of the Fourth Circuit said:

Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been reviewed by
the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained,
and the same held in no manner to encroach upon the pardoning power of the President. This case will be found to
contain an able and comprehensive review of the law applicable here. It arose under the act we have to consider,
and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to
a decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise
construing the Probation Act.

We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language, pointed to
Congress as possessing the requisite power to enact probation laws, that a federal probation law as actually
enacted in 1925, and that the constitutionality of the Act has been assumed by the Supreme Court of the United
States in 1928 and consistently sustained by the inferior federal courts in a number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally enact a
probation law under its broad power to fix the punishment of any and all penal offenses. This conclusion is
supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the
court said: "It is clearly within the province of the Legislature to denominate and define all classes of crime, and to
prescribe for each a minimum and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A.
[N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime
is very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the
largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment and whether it
should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.)
Indeed, the Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the
legislature has demonstrated the desire to vest in the courts — particularly the trial courts — large discretion in
imposing the penalties which the law prescribes in particular cases. It is believed that justice can best be served by
vesting this power in the courts, they being in a position to best determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a sentence
merely because, taking into consideration the degree of malice and the injury caused by the offense, the penalty
provided by law is clearly excessive, the courts being allowed in such case to submit to the Chief Executive, through
the Department of Justice, such statement as it may deem proper (see art. 5, Revised Penal Code), in cases where
both mitigating and aggravating circumstances are attendant in the commission of a crime and the law provides for
a penalty composed of two indivisible penalties, the courts may allow such circumstances to offset one another in
consideration of their number and importance, and to apply the penalty according to the result of such
compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again,
article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of each
periods, in case the penalty prescribed by law contains three periods, the extent of the evil produced by the crime. In
the imposition of fines, the courts are allowed to fix any amount within the limits established by law, considering not
only the mitigating and aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66,
Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall be
imposed" upon a person under fifteen but over nine years of age, who has not acted without discernment, but
always lower by two degrees at least than that prescribed by law for the crime which he has committed. Article 69 of
the same Code provides that in case of "incomplete self-defense", i.e., when the crime committed is not wholly
excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal
liability in the several cases mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the
period which may be deemed proper, in view of the number and nature of the conditions of exemption present or
lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having in mind the
social danger and the degree of criminality shown by the offender," shall impose upon him either arresto mayor or a
fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form the entire
term of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposed when
the guilty person is more than seventy years of age, or where upon appeal or revision of the case by the Supreme
Court, all the members thereof are not unanimous in their voting as to the propriety of the imposition of the death
penalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the
death sentence is not to be inflicted upon a woman within the three years next following the date of the sentence or
while she is pregnant, or upon any person over seventy years of age (art. 83); and when a convict shall become
insane or an imbecile after final sentence has been pronounced, or while he is serving his sentenced, the execution
of said sentence shall be suspended with regard to the personal penalty during the period of such insanity or
imbecility (art. 79).

But the desire of the legislature to relax what might result in the undue harshness of the penal laws is more clearly
demonstrated in various other enactments, including the probation Act. There is the Indeterminate Sentence Law
enacted in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing a system of parole
(secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the law. Section 1 of the law as
amended provides; "hereafter, in imposing a prison sentence for an offenses punished by the Revised Penal Code,
or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which
shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said
Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by the Code for
the offense; and if the offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same." Certain classes of convicts are, by
section 2 of the law, excluded from the operation thereof. The Legislature has also enacted the Juvenile
Delinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original Act
and section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117
of the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National Assembly. In this
Act is again manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect, the
modification in particular cases of the penalties prescribed by law by permitting the suspension of the execution of
the judgment in the discretion of the trial court, after due hearing and after investigation of the particular
circumstances of the offenses, the criminal record, if any, of the convict, and his social history. The Legislature has
in reality decreed that in certain cases no punishment at all shall be suffered by the convict as long as the conditions
of probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in conflict with
the power of the Chief Executive to grant pardons and reprieves, because, to use the language of the Supreme
Court of New Mexico, "the element of punishment or the penalty for the commission of a wrong, while to be declared
by the courts as a judicial function under and within the limits of law as announced by legislative acts, concerns
solely the procedure and conduct of criminal causes, with which the executive can have nothing to do." (Ex
parteBates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality
of the Georgia probation statute against the contention that it attempted to delegate to the courts the pardoning
power lodged by the constitution in the governor alone is vested with the power to pardon after final sentence has
been imposed by the courts, the power of the courts to imposed any penalty which may be from time to time
prescribed by law and in such manner as may be defined cannot be questioned."

We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the legislature
to vest in the courts the power to suspend the operation of a sentenced, by probation or otherwise, as to do so
would encroach upon the pardoning power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46
Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150;
182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132
Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep.,
230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162; Ex parte Shelor
[1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30
S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15;
19 N. W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)

Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D.
C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark.,
620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928],
89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick
[1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914],
88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913],
257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie,
Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs.
Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525;
State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909],
75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M.,
542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106
N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180;
281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29
Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S.
C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods
vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs.
State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W.,
573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep.,
394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt.,
197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash.,
287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.)
We elect to follow this long catena of authorities holding that the courts may be legally authorized by the legislature
to suspend sentence by the establishment of a system of probation however characterized. State ex rel. Tingstand
vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a
statute enacted in 1921 which provided for the suspension of the execution of a sentence until otherwise ordered by
the court, and required that the convicted person be placed under the charge of a parole or peace officer during the
term of such suspension, on such terms as the court may determine, was held constitutional and as not giving the
court a power in violation of the constitutional provision vesting the pardoning power in the chief executive of the
state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)

Probation and pardon are not coterminous; nor are they the same. They are actually district and different from each
other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N.
E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said:

. . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the
constitution was adopted, are totally distinct and different in their nature. The former was always a part of the judicial
power; the latter was always a part of the executive power. The suspension of the sentence simply postpones the
judgment of the court temporarily or indefinitely, but the conviction and liability following it, and the civil disabilities,
remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the
offense and the guilt of the offender. It releases the punishment, and blots out of existence the guilt, so that in the
eye of the law, the offender is as innocent as if he had never committed the offense. It removes the penalties and
disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit
and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20
Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly familiar with the principles governing the power
to grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon
the subject, and the words of the constitution were used to express the authority formerly exercised by the English
crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this
power was understood, it did not comprehend any part of the judicial functions to suspend sentence, and it was
never intended that the authority to grant reprieves and pardons should abrogate, or in any degree restrict, the
exercise of that power in regard to its own judgments, that criminal courts has so long maintained. The two powers,
so distinct and different in their nature and character, were still left separate and distinct, the one to be exercised by
the executive, and the other by the judicial department. We therefore conclude that a statute which, in terms,
authorizes courts of criminal jurisdiction to suspend sentence in certain cases after conviction, — a power inherent
in such courts at common law, which was understood when the constitution was adopted to be an ordinary judicial
function, and which, ever since its adoption, has been exercised of legislative power under the constitution. It does
not encroach, in any just sense, upon the powers of the executive, as they have been understood and practiced
from the earliest times. (Quoted with approval in Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29
Phil., 265, Carson, J., concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely
exonerated. He is not exempt from the entire punishment which the law inflicts. Under the Probation Act, the
probationer's case is not terminated by the mere fact that he is placed on probation. Section 4 of the Act provides
that the probation may be definitely terminated and the probationer finally discharged from supervision only after the
period of probation shall have been terminated and the probation officer shall have submitted a report, and the court
shall have found that the probationer has complied with the conditions of probation. The probationer, then, during
the period of probation, remains in legal custody — subject to the control of the probation officer and of the court;
and, he may be rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be
committed to prison to serve the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)

The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It is really a new
mode of punishment, to be applied by the judge in a proper case, in substitution of the imprisonment and find
prescribed by the criminal laws. For this reason its application is as purely a judicial act as any other sentence
carrying out the law deemed applicable to the offense. The executive act of pardon, on the contrary, is against the
criminal law, which binds and directs the judges, or rather is outside of and above it. There is thus no conflict with
the pardoning power, and no possible unconstitutionality of the Probation Act for this cause. (Archer vs. Snook
[1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass vs. State
([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the
petitioners as authority in support of their contention that the power to grant pardons and reprieves, having been
vested exclusively upon the Chief Executive by the Jones Law, may not be conferred by the legislature upon the
courts by means of probation law authorizing the indefinite judicial suspension of sentence. We have examined that
case and found that although the Court of Criminal Appeals of Texas held that the probation statute of the state in
terms conferred on the district courts the power to grant pardons to persons convicted of crime, it also distinguished
between suspensions sentence on the one hand, and reprieve and commutation of sentence on the other. Said the
court, through Harper, J.:

That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves is
settled by the decisions of the various courts; it being held that the distinction between a "reprieve" and a
suspension of sentence is that a reprieve postpones the execution of the sentence to a day certain, whereas a
suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N.
E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict with the power
confiding in the Governor to grant commutations of punishment, for a commutations is not but to change the
punishment assessed to a less punishment.

In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court of Montana
had under consideration the validity of the adult probation law of the state enacted in 1913, now found in sections
12078-12086, Revised Codes of 1921. The court held the law valid as not impinging upon the pardoning power of
the executive. In a unanimous decision penned by Justice Holloway, the court said:

. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time our
Constitution was adopted, and no one of them was intended to comprehend the suspension of the execution of the
judgment as that phrase is employed in sections 12078-12086. A "pardon" is an act of grace, proceeding from the
power intrusted with the execution of the laws which exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It
is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense (Cook vs. Middlesex
County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a remission of a part
of the punishment; a substitution of a less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789;
12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the withholding
of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a postponement of execution (Carnal vs.
People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution (Butler vs. State, 97 Ind., 373).

Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 has been
determined; but the same objections have been urged against parole statutes which vest the power to parole in
persons other than those to whom the power of pardon is granted, and these statutes have been upheld quite
uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S.
W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)

We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The pardoning
power, in respect to those serving their probationary sentences, remains as full and complete as if the Probation
Law had never been enacted. The President may yet pardon the probationer and thus place it beyond the power of
the court to order his rearrest and imprisonment. (Riggs vs. United States [1926],
14 F. [2d], 5, 7.)

2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not for that
reason void, does section 11 thereof constitute, as contended, an undue delegation of legislative power?

Under the constitutional system, the powers of government are distributed among three coordinate and substantially
independent organs: the legislative, the executive and the judicial. Each of these departments of the government
derives its authority from the Constitution which, in turn, is the highest expression of popular will. Each has exclusive
cognizance of the matters within its jurisdiction, and is supreme within its own sphere.

The power to make laws — the legislative power — is vested in a bicameral Legislature by the Jones Law (sec. 12)
and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The
Philippine Legislature or the National Assembly 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 potestas delegata non delegare potest. This principle is said to have originated with the glossators, was
introduced into English law through a misreading of Bracton, there developed as a principle of agency, was
established by Lord Coke in the English public law in decisions forbidding the delegation of judicial power, and found
its way into America as an enlightened principle of free government. It has since become an accepted corollary of
the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is
that of Locke, namely: "The legislative neither must nor can transfer the power of making laws to anybody else, or
place it anywhere but where the people have." (Locke on Civil Government, sec. 142.) Judge Cooley enunciates the
doctrine in the following oft-quoted language: "One of the settled maxims in constitutional law is, that the power
conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.
Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional
agency alone the laws must be made until the Constitution itself is charged. The power to whose judgment, wisdom,
and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibilities by choosing other
agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any
other body for those to which alone the people have seen fit to confide this sovereign trust." (Cooley on
Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This
court posits the doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty
to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of
legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.)

The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It admits of
exceptions. An exceptions sanctioned by immemorial practice permits the central legislative body to delegate
legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria
[1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State
vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system of government, that local affairs shall be
managed by local authorities, and general affairs by the central authorities; and hence while the rule is also
fundamental that the power to make laws cannot be delegated, the creation of the municipalities exercising local self
government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general
legislative power, but rather as the grant of the authority to prescribed local regulations, according to immemorial
practice, subject of course to the interposition of the superior in cases of necessity." (Stoutenburgh vs.
Hennick, supra.) On quite the same principle, Congress is powered to delegate legislative power to such agencies in
the territories of the United States as it may select. A territory stands in the same relation to Congress as a
municipality or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep.,
742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49
Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the people at
large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People
vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of whether or
not a state has ceased to be republican in form because of its adoption of the initiative and referendum has been
held not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56
Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked upon with favor by
certain progressive courts, the sting of the decisions of the more conservative courts has been pretty well drawn.
(Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57
Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.)
Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI
of the Constitution of the Philippines provides that "The National Assembly may by law authorize the President,
subject to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or export
quotas, and tonnage and wharfage dues." And section 16 of the same article of the Constitution provides that "In
times of war or other national emergency, the National Assembly may by law authorize the President, for a limited
period and subject to such restrictions as it may prescribed, to promulgate rules and regulations to carry out a
declared national policy." It is beyond the scope of this decision to determine whether or not, in the absence of the
foregoing constitutional provisions, the President could be authorized to exercise the powers thereby vested in him.
Upon the other hand, whatever doubt may have existed has been removed by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove mentioned.

The challenged section of Act No. 4221 in section 11 which reads as follows:

This Act shall apply only in those provinces in which the respective provincial boards have provided for the salary of
a probation officer at rates not lower than those now provided for provincial fiscals. Said probation officer shall be
appointed by the Secretary of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.)

In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether
the statute was complete in all its terms and provisions when it left the hands of the legislature so that nothing was
left to the judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs.
Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void
in so far as it undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the price
of rice and to make the sale of it in violation of the proclamation a crime. (See and cf. Compañia General de
Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by
another rule that to a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted
or promulgated by executive officers and administrative boards. (6 R. C. L., pp. 177-179.)

For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies endowed with
power to determine when the Act should take effect in their respective provinces. They are the agents or delegates
of the legislature in this respect. The rules governing delegation of legislative power to administrative and executive
officers are applicable or are at least indicative of the rule which should be here adopted. An examination of a
variety of cases on delegation of power to administrative bodies will show that the ratio decidendi is at variance but,
it can be broadly asserted that the rationale revolves around the presence or absence of a standard or rule of action
— or the sufficiency thereof — in the statute, to aid the delegate in exercising the granted discretion. In some cases,
it is held that the standard is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a
rule, an act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by
which the administrative officer or board may be guided in the exercise of the discretionary powers delegated to it.
(See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947;
People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See
also R. C. L., title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards in
the exercise of their discretionary power to determine whether or not the Probation Act shall apply in their respective
provinces? What standards are fixed by the Act? We do not find any and none has been pointed to us by the
respondents. The probation Act does not, by the force of any of its provisions, fix and impose upon the provincial
boards any standard or guide in the exercise of their discretionary power. What is granted, if we may use the
language of Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which enables the
provincial boards to exercise arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its
own authority extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the
various provincial boards to determine. In other words, the provincial boards of the various provinces are to
determine for themselves, whether the Probation Law shall apply to their provinces or not at all. The applicability
and application of the Probation Act are entirely placed in the hands of the provincial boards. If the provincial board
does not wish to have the Act applied in its province, all that it has to do is to decline to appropriate the needed
amount for the salary of a probation officer. The plain language of the Act is not susceptible of any other
interpretation. This, to our minds, is a virtual surrender of legislative power to the provincial boards.

"The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."
(Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory
Construction, sec 68.) To the same effect are the decision of this court in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the validity of the law conferring
upon the Governor-General authority to adjust provincial and municipal boundaries. In the second case, this court
held it lawful for the legislature to direct non-Christian inhabitants to take up their habitation on unoccupied lands to
be selected by the provincial governor and approved by the provincial board. In the third case, it was held proper for
the legislature to vest in the Governor-General authority to suspend or not, at his discretion, the prohibition of the
importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make this advisable or
if deceased among foreign cattle has ceased to be a menace to the agriculture and livestock of the lands."

It should be observed that in the case at bar we are not concerned with the simple transference of details of
execution or the promulgation by executive or administrative officials of rules and regulations to carry into effect the
provisions of a law. If we were, recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11
Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus
Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro
[1919], 39 Phil., 660.)

It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of the
legislature. It is true that laws may be made effective on certain contingencies, as by proclamation of the executive
or the adoption by the people of a particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations,
8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the
United State ruled that the legislature may delegate a power not legislative which it may itself rightfully
exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The
power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is a mental
process common to all branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In re Village of North
Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W.,
210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent
tendency, however, to relax the rule prohibiting delegation of legislative authority on account of the complexity
arising from social and economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936]
ch. XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-
Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of
Judge Cooley in his work on Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the
Constitution of the United States in the following language — speaking of declaration of legislative power to
administrative agencies: "The principle which permits the legislature to provide that the administrative agent may
determine when the circumstances are such as require the application of a law is defended upon the ground that at
the time this authority is granted, the rule of public policy, which is the essence of the legislative act, is determined
by the legislature. In other words, the legislature, as it its duty to do, determines that, under given circumstances,
certain executive or administrative action is to be taken, and that, under other circumstances, different of no action
at all is to be taken. What is thus left to the administrative official is not the legislative determination of what public
policy demands, but simply the ascertainment of what the facts of the case require to be done according to the
terms of the law by which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p.
1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was
said: "The efficiency of an Act as a declaration of legislative will must, of course, come from Congress, but the
ascertainment of the contingency upon which the Act shall take effect may be left to such agencies as it may
designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343,
258.) The legislature, then may provide that a contingencies leaving to some other person or body the power to
determine when the specified contingencies has arisen. But, in the case at bar, the legislature has not made the
operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by the provincial
board. It leaves, as we have already said, the entire operation or non-operation of the law upon the provincial board.
the discretion vested is arbitrary because it is absolute and unlimited. A provincial board need not investigate
conditions or find any fact, or await the happening of any specified contingency. It is bound by no rule, — limited by
no principle of expendiency announced by the legislature. It may take into consideration certain facts or conditions;
and, again, it may not. It may have any purpose or no purpose at all. It need not give any reason whatsoever for
refusing or failing to appropriate any funds for the salary of a probation officer. This is a matter which rest entirely at
its pleasure. The fact that at some future time — we cannot say when — the provincial boards may appropriate
funds for the salaries of probation officers and thus put the law into operation in the various provinces will not save
the statute. The time of its taking into effect, we reiterate, would yet be based solely upon the will of the provincial
boards and not upon the happening of a certain specified contingency, or upon the ascertainment of certain facts or
conditions by a person or body other than legislature itself.

The various provincial boards are, in practical effect, endowed with the power of suspending the operation of the
Probation Law in their respective provinces. In some jurisdiction, constitutions provided that laws may be suspended
only by the legislature or by its authority. Thus, section 28, article I of the Constitution of Texas provides that "No
power of suspending laws in this state shall be exercised except by the legislature"; and section 26, article I of the
Constitution of Indiana provides "That the operation of the laws shall never be suspended, except by authority of the
General Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the
legislature. While it may be undoubted that the legislature may suspend a law, or the execution or operation of a
law, a law may not be suspended as to certain individuals only, leaving the law to be enjoyed by others. The
suspension must be general, and cannot be made for individual cases or for particular localities. In Holden vs.
James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was said:

By the twentieth article of the declaration of rights in the constitution of this commonwealth, it is declared that the
power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by
authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.
Many of the articles in that declaration of rights were adopted from the Magna Charta of England, and from the bill of
rights passed in the reign of William and Mary. The bill of rights contains an enumeration of the oppressive acts of
James II, tending to subvert and extirpate the protestant religion, and the laws and liberties of the kingdom; and the
first of them is the assuming and exercising a power of dispensing with and suspending the laws, and the execution
of the laws without consent of parliament. The first article in the claim or declaration of rights contained in the statute
is, that the exercise of such power, by legal authority without consent of parliament, is illegal. In the tenth section of
the same statute it is further declared and enacted, that "No dispensation by non obstante of or to any statute, or
part thereof, should be allowed; but the same should be held void and of no effect, except a dispensation be allowed
of in such statute." There is an implied reservation of authority in the parliament to exercise the power here
mentioned; because, according to the theory of the English Constitution, "that absolute despotic power, which must
in all governments reside somewhere," is intrusted to the parliament: 1 Bl. Com., 160.

The principles of our government are widely different in this particular. Here the sovereign and absolute power
resides in the people; and the legislature can only exercise what is delegated to them according to the constitution.
It is obvious that the exercise of the power in question would be equally oppressive to the subject, and subversive of
his right to protection, "according to standing laws," whether exercised by one man or by a number of men. It cannot
be supposed that the people when adopting this general principle from the English bill of rights and inserting it in our
constitution, intended to bestow by implication on the general court one of the most odious and oppressive
prerogatives of the ancient kings of England. It is manifestly contrary to the first principles of civil liberty and natural
justice, and to the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages
which are denied to all others under like circumstances; or that ant one should be subject to losses, damages, suits,
or actions from which all others under like circumstances are exempted.

To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the owner of
domestic animals wounded by it for the damages without proving a knowledge of it vicious disposition. By a
provision of the act, power was given to the board of supervisors to determine whether or not during the current year
their county should be governed by the provisions of the act of which that section constituted a part. It was held that
the legislature could not confer that power. The court observed that it could no more confer such a power than to
authorize the board of supervisors of a county to abolish in such county the days of grace on commercial paper, or
to suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was
held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general
statute formulating a road system contained a provision that "if the county court of any county should be of opinion
that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the
same for any specified length of time, and thereupon the act should become inoperative in such county for the
period specified in such order; and thereupon order the roads to be opened and kept in good repair, under the laws
theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a
former act, and yet it is left to the county court to say which act shall be enforce in their county. The act does not
submit the question to the county court as an original question, to be decided by that tribunal, whether the act shall
commence its operation within the county; but it became by its own terms a law in every county not excepted by
name in the act. It did not, then, require the county court to do any act in order to give it effect. But being the law in
the county, and having by its provisions superseded and abrogated the inconsistent provisions of previous laws, the
county court is . . . empowered, to suspend this act and revive the repealed provisions of the former act. When the
question is before the county court for that tribunal to determine which law shall be in force, it is urge before us that
the power then to be exercised by the court is strictly legislative power, which under our constitution, cannot be
delegated to that tribunal or to any other body of men in the state. In the present case, the question is not presented
in the abstract; for the county court of Saline county, after the act had been for several months in force in that
county, did by order suspend its operation; and during that suspension the offense was committed which is the
subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)

True, the legislature may enact laws for a particular locality different from those applicable to other localities and,
while recognizing the force of the principle hereinabove expressed, courts in may jurisdiction have sustained the
constitutionality of the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option laws thus
sustained treat of subjects purely local in character which should receive different treatment in different localities
placed under different circumstances. "They relate to subjects which, like the retailing of intoxicating drinks, or the
running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained
on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary powers of
municipalities to make by-laws and ordinances, is nevertheless within the class of public regulations, in respect to
which it is proper that the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So
that, while we do not deny the right of local self-government and the propriety of leaving matters of purely local
concern in the hands of local authorities or for the people of small communities to pass upon, we believe that in
matters of general of general legislation like that which treats of criminals in general, and as regards the general
subject of probation, discretion may not be vested in a manner so unqualified and absolute as provided in Act No.
4221. True, the statute does not expressly state that the provincial boards may suspend the operation of the
Probation Act in particular provinces but, considering that, in being vested with the authority to appropriate or not the
necessary funds for the salaries of probation officers, they thereby are given absolute discretion to determine
whether or not the law should take effect or operate in their respective provinces, the provincial boards are in reality
empowered by the legislature to suspend the operation of the Probation Act in particular provinces, the Act to be
held in abeyance until the provincial boards should decide otherwise by appropriating the necessary funds. The
validity of a law is not tested by what has been done but by what may be done under its provisions. (Walter E. Olsen
& Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)

It in conceded that a great deal of latitude should be granted to the legislature not only in the expression of what
may be termed legislative policy but in the elaboration and execution thereof. "Without this power, legislation would
become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government
lives because of the inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of
government is vested in the representatives of the people and that these representatives are no further restrained
under our system than by the express language of the instrument imposing the restraint, or by particular provisions
which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23;
Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a
grant and a limitation of power and one of these time-honored limitations is that, subject to certain exceptions,
legislative power shall not be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of legislative authority
to the provincial boards and is, for this reason, unconstitutional and void.

3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to
any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.)

This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of our
government and on the subordinate instrumentalities and subdivision thereof, and on many constitutional power, like
the police power, taxation and eminent domain. The equal protection of laws, sententiously observes the Supreme
Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S.,
356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63
Law. ed., 735.) Of course, what may be regarded as a denial of the equal protection of the laws in a question not
always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co.
[1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and
favoring others in prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is
permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co.
vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40
Phil., 136.) The classification, however, to be reasonable must be based on substantial distinctions which make real
differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and
must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209;
3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs.
Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C,
160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374;
Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247;
Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)

In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of
legislative power, although perhaps this is not necessarily the result in every case. Adopting the example given by
one of the counsel for the petitioners in the course of his oral argument, one province may appropriate the
necessary fund to defray the salary of a probation officer, while another province may refuse or fail to do so. In such
a case, the Probation Act would be in operation in the former province but not in the latter. This means that a person
otherwise coming within the purview of the law would be liable to enjoy the benefits of probation in one province
while another person similarly situated in another province would be denied those same benefits. This is obnoxious
discrimination. Contrariwise, it is also possible for all the provincial boards to appropriate the necessary funds for the
salaries of the probation officers in their respective provinces, in which case no inequality would result for the
obvious reason that probation would be in operation in each and every province by the affirmative action of
appropriation by all the provincial boards. On that hypothesis, every person coming within the purview of the
Probation Act would be entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no
province, through its provincial board, should appropriate any amount for the salary of the probation officer — which
is the situation now — and, also, if we accept the contention that, for the purpose of the Probation Act, the City of
Manila should be considered as a province and that the municipal board of said city has not made any appropriation
for the salary of the probation officer. These different situations suggested show, indeed, that while inequality may
result in the application of the law and in the conferment of the benefits therein provided, inequality is not in all cases
the necessary result. But whatever may be the case, it is clear that in section 11 of the Probation Act creates a
situation in which discrimination and inequality are permitted or allowed. There are, to be sure, abundant authorities
requiring actual denial of the equal protection of the law before court should assume the task of setting aside a law
vulnerable on that score, but premises and circumstances considered, we are of the opinion that section 11 of Act
No. 4221 permits of the denial of the equal protection of the law and is on that account bad. We see no difference
between a law which permits of such denial. A law may appear to be fair on its face and impartial in appearance,
yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung
vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed.,
543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law.
ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S.,
356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012;
Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield
[1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words, statutes may be adjudged
unconstitutional because of their effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct.
Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If
the law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights
Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94
Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A.,
858.) Under section 11 of the Probation Act, not only may said Act be in force in one or several provinces and not be
in force in other provinces, but one province may appropriate for the salary of the probation officer of a given year —
and have probation during that year — and thereafter decline to make further appropriation, and have no probation
is subsequent years. While this situation goes rather to the abuse of discretion which delegation implies, it is here
indicated to show that the Probation Act sanctions a situation which is intolerable in a government of laws, and to
prove how easy it is, under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer, J.
Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net

Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States ([1914], 234 U. S.,
91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States affirmed the decision of this court (18
Phil., 1) by declining to uphold the contention that there was a denial of the equal protection of the laws because, as
held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of
the equality clause does not require territorial uniformity. It should be observed, however, that this case concerns
the right to preliminary investigations in criminal cases originally granted by General Orders No. 58. No question of
legislative authority was involved and the alleged denial of the equal protection of the laws was the result of the
subsequent enactment of Act No. 612, amending the charter of the City of Manila (Act No. 813) and providing in
section 2 thereof that "in cases triable only in the court of first instance of the City of Manila, the defendant . . . shall
not be entitled as of right to a preliminary examination in any case where the prosecuting attorney, after a due
investigation of the facts . . . shall have presented an information against him in proper form . . . ." Upon the other
hand, an analysis of the arguments and the decision indicates that the investigation by the prosecuting attorney —
although not in the form had in the provinces — was considered a reasonable substitute for the City of Manila,
considering the peculiar conditions of the city as found and taken into account by the legislature itself.

Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation where the
constitution of Missouri permits appeals to the Supreme Court of the state from final judgments of any circuit court,
except those in certain counties for which counties the constitution establishes a separate court of appeals called St.
Louis Court of Appeals. The provision complained of, then, is found in the constitution itself and it is the constitution
that makes the apportionment of territorial jurisdiction.

We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also repugnant
to equal-protection clause of our Constitution.

Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next inquiry is
whether or not the entire Act should be avoided.

In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to
elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so
independent and separable that its removal will leave the constitutional features and purposes of the act
substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl.,
1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep.,
115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated the well-established rule
concerning partial invalidity of statutes in the following language:

. . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion,
if separable from the valid, may stand and be enforced. But in order to do this, the valid portion must be in so far
independent of the invalid portion that it is fair to presume that the Legislative would have enacted it by itself if they
had supposed that they could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86
N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou.,
963.) Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent.
(Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated without causing results
affecting the main purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L. R.,
Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794;
Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22
L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the invalid part of a
statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative
will, independently of the void part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N.
W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan
and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)

It is contended that even if section 11, which makes the Probation Act applicable only in those provinces in which
the respective provincial boards provided for the salaries of probation officers were inoperative on constitutional
grounds, the remainder of the Act would still be valid and may be enforced. We should be inclined to accept the
suggestions but for the fact that said section is, in our opinion, is inseparably linked with the other portions of the Act
that with the elimination of the section what would be left is the bare idealism of the system, devoid of any practical
benefit to a large number of people who may be deserving of the intended beneficial result of that system. The clear
policy of the law, as may be gleaned from a careful examination of the whole context, is to make the application of
the system dependent entirely upon the affirmative action of the different provincial boards through appropriation of
the salaries for probation officers at rates not lower than those provided for provincial fiscals. Without such action on
the part of the various boards, no probation officers would be appointed by the Secretary of Justice to act in the
provinces. The Philippines is divided or subdivided into provinces and it needs no argument to show that if not one
of the provinces — and this is the actual situation now — appropriate the necessary fund for the salary of a
probation officer, probation under Act No. 4221 would be illusory. There can be no probation without a probation
officer. Neither can there be a probation officer without the probation system.

Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer. Every probation
officer is given, as to the person placed in probation under his care, the powers of the police officer. It is the duty of
the probation officer to see that the conditions which are imposed by the court upon the probationer under his care
are complied with. Among those conditions, the following are enumerated in section 3 of the Act:

That the probationer (a) shall indulge in no injurious or vicious habits;

(b) Shall avoid places or persons of disreputable or harmful character;

(c) Shall report to the probation officer as directed by the court or probation officers;

(d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere;

(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his conduct or
condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a specified place or
locality;

(f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his offense;
(g) Shall comply with such orders as the court may from time to time make; and

(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated in accordance
with law.

The court is required to notify the probation officer in writing of the period and terms of probation. Under section 4, it
is only after the period of probation, the submission of a report of the probation officer and appropriate finding of the
court that the probationer has complied with the conditions of probation that probation may be definitely terminated
and the probationer finally discharged from supervision. Under section 5, if the court finds that there is non-
compliance with said conditions, as reported by the probation officer, it may issue a warrant for the arrest of the
probationer and said probationer may be committed with or without bail. Upon arraignment and after an opportunity
to be heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order the
execution of the sentence originally imposed. Section 6 prescribes the duties of probation officers: "It shall be the
duty of every probation officer to furnish to all persons placed on probation under his supervision a statement of the
period and conditions of their probation, and to instruct them concerning the same; to keep informed concerning
their conduct and condition; to aid and encourage them by friendly advice and admonition, and by such other
measures, not inconsistent with the conditions imposed by court as may seem most suitable, to bring about
improvement in their conduct and condition; to report in writing to the court having jurisdiction over said probationers
at least once every two months concerning their conduct and condition; to keep records of their work; make such
report as are necessary for the information of the Secretary of Justice and as the latter may require; and to perform
such other duties as are consistent with the functions of the probation officer and as the court or judge may direct.
The probation officers provided for in this Act may act as parole officers for any penal or reformatory institution for
adults when so requested by the authorities thereof, and, when designated by the Secretary of Justice shall act as
parole officer of persons released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."

It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under
section 10 of Act which provides as follows:

There is hereby created in the Department of Justice and subject to its supervision and control, a Probation Office
under the direction of a Chief Probation Officer to be appointed by the Governor-General with the advise and
consent of the Senate who shall receive a salary of four eight hundred pesos per annum. To carry out this Act there
is hereby appropriated out of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand
pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint probation officers and the
administrative personnel of the probation officer under civil service regulations from among those who possess the
qualifications, training and experience prescribed by the Bureau of Civil Service, and shall fix the compensation of
such probation officers and administrative personnel until such positions shall have been included in the
Appropriation Act.

But the probation officers and the administrative personnel referred to in the foregoing section are clearly not those
probation officers required to be appointed for the provinces under section 11. It may be said, reddendo singula
singulis, that the probation officers referred to in section 10 above-quoted are to act as such, not in the various
provinces, but in the central office known as the Probation Office established in the Department of Justice, under the
supervision of the Chief Probation Officer. When the law provides that "the probation officer" shall investigate and
make reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec.
2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the
probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on the part of "the
probation officer" concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer"
in writing of the period and terms of probation (sec. 3, last par.), it means the probation officer who is in charge of a
particular probationer in a particular province. It never could have been intention of the legislature, for instance, to
require the probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a probation
officer in Manila to visit the probationer in the said province of Batanes, to place him under his care, to supervise his
conduct, to instruct him concerning the conditions of his probation or to perform such other functions as are
assigned to him by law.

That under section 10 the Secretary of Justice may appoint as many probation officers as there are provinces or
groups of provinces is, of course possible. But this would be arguing on what the law may be or should be and not
on what the law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for us to
pass upon. We may think a law better otherwise than it is. But much as has been said regarding progressive
interpretation and judicial legislation we decline to amend the law. We are not permitted to read into the law matters
and provisions which are not there. Not for any purpose — not even to save a statute from the doom of invalidity.

Upon the other hand, the clear intention and policy of the law is not to make the Insular Government defray the
salaries of probation officers in the provinces but to make the provinces defray them should they desire to have the
Probation Act apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to be
applied, among other things, for the salaries of probation officers in the central office at Manila. These probation
officers are to receive such compensations as the Secretary of Justice may fix "until such positions shall have been
included in the Appropriation Act". It was the intention of the legislature to empower the Secretary of Justice to fix
the salaries of the probation officers in the provinces or later on to include said salaries in an appropriation act.
Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other things, the salaries
of the administrative personnel of the Probation Office, what would be left of the amount can hardly be said to be
sufficient to pay even nominal salaries to probation officers in the provinces. We take judicial notice of the fact that
there are 48 provinces in the Philippines and we do not think it is seriously contended that, with the fifty thousand
pesos appropriated for the central office, there can be in each province, as intended, a probation officer with a salary
not lower than that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said
act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in our case there
can be a system of probation in the provinces without probation officers.

Probation as a development of a modern penology is a commendable system. Probation laws have been enacted,
here and in other countries, to permit what modern criminologist call the "individualization of the punishment", the
adjustment of the penalty to the character of the criminal and the circumstances of his particular case. It provides a
period of grace in order to aid in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts
may be reformed and their development into hardened criminals aborted. It, therefore, takes advantage of an
opportunity for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United States
vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24
F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The benefit to the individual convict is merely
incidental. But while we believe that probation is commendable as a system and its implantation into the Philippines
should be welcomed, we are forced by our inescapable duty to set the law aside because of the repugnancy to our
fundamental law.

In arriving at this conclusion, we have endeavored to consider the different aspects presented by able counsel for
both parties, as well in their memorandums as in their oral argument. We have examined the cases brought to our
attention, and others we have been able to reach in the short time at our command for the study and deliberation of
this case. In the examination of the cases and in then analysis of the legal principles involved we have inclined to
adopt the line of action which in our opinion, is supported better reasoned authorities and is more conducive to the
general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases brought to our attention, except where the point or principle is
settled directly or by clear implication by the more authoritative pronouncements of the Supreme Court of the United
States. This line of approach is justified because:

(a) The constitutional relations between the Federal and the State governments of the United States and the dual
character of the American Government is a situation which does not obtain in the Philippines;

(b) The situation of s state of the American Union of the District of Columbia with reference to the Federal
Government of the United States is not the situation of the province with respect to the Insular Government (Art. I,
sec. 8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871),

(c) The distinct federal and the state judicial organizations of the United States do not embrace the integrated
judicial system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317);

(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904], 198 U. S.,
45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and circumstances" (Chief
Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law
Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view existing
local conditions and environment.

Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly, granted.
Without any pronouncement regarding costs. So ordered.

Avanceña, C.J., Imperial, Diaz and Concepcion, JJ., concur.

Villa-real and Abad Santos, JJ., concur in the result.
 EN BANC

G.R. No. 157509 January 18, 2005

AUTOMOTIVE INDUSTRY WORKERS ALLIANCE (AIWA) and its Affiliated Unions: Mitsubishi Motors
Workers Phils. Union; Mitsubishi Motors Phils. Supervisors Union, Nissan Motors Phils., Inc. Workers
Union, Toyota Motors Phils. Workers Union, DURASTEEL WORKERS UNION, FILSHUTTERS EMPLOYEES &
WORKERS UNION, NATIONAL LABOR UNION, PEPSI-COLA SUPERVISORS AND EMPLOYEES UNION,
PSBA FACULTY ASSOCIATION, PLDT SECURITY PERSONNEL UNION, PUREFOODS UNIFIED LABOR
ORGANIZATION, SAMAHANG MANGGAGAWA NG BICUTAN CONTAINERS CORP., SAMAHANG
MANGGAGAWA NG CINDERELLA, SAMAHANG MANGGAGAWA NG LAURA’S FOOD
PRODUCTS, petitioners,
vs.
HON. ALBERTO ROMULO, in his capacity as Executive Secretary, and HON. PATRICIA STO. TOMAS, in her
capacity as Secretary of Labor and Employment, respondents.

DECISION

CHICO-NAZARIO, J.:

Petitioners, composed of ten (10) labor unions, call upon this Court to exercise its power of judicial review to declare
as unconstitutional an executive order assailed to be in derogation of the constitutional doctrine of separation of
powers.

In an original action for certiorari, petitioners invoke their status as labor unions and as taxpayers whose rights and
interests are allegedly violated and prejudiced by Executive Order No. 185 dated 10 March 2003 whereby
administrative supervision over the National Labor Relations Commission (NLRC), its regional branches and all its
personnel including the executive labor arbiters and labor arbiters was transferred from the NLRC Chairperson to
the Secretary of Labor and Employment. In support of their position,1 petitioners argue that the NLRC -- created by
Presidential Decree No. 442, otherwise known as the Labor Code, during Martial Law – was an integral part of the
Department (then Ministry) of Labor and Employment (DOLE) under the administrative supervision of the Secretary
of Justice. During the time of President Corazon C. Aquino, and while she was endowed with legislative functions
after EDSA I, Executive Order No. 2922 was issued whereby the NLRC became an agency attached to the DOLE
for policy and program coordination and for administrative supervision. On 02 March 1989, Article 213 of the Labor
Code was expressly amended by Republic Act No. 6715 declaring that the NLRC was to be attached to the DOLE
for program and policy coordination only while the administrative supervision over the NLRC, its regional branches
and personnel, was turned over to the NLRC Chairman. The subject E.O. No. 185, in authorizing the Secretary of
Labor to exercise administrative supervision over the NLRC, its regional branches and personnel, allegedly reverted
to the pre-Rep. Act No. 6715 set-up, amending the latter law which only Congress can do.

The respondents herein, as represented by the Office of the Solicitor General, opposed the petition on
procedural3and substantive4 grounds. Procedurally, it is alleged that the petition does not pose an actual case or
controversy upon which judicial review may be exercised as petitioners have not specifically cited how E.O. No. 185
has prejudiced or threatened to prejudice their rights and existence as labor unions and as taxpayers. Closely
intertwined therewith, respondents further argue that petitioners have no locus standi to assail the validity of E.O.
No. 185, not even in their capacity as taxpayers, considering that labor unions are exempt from paying taxes, citing
Sec. 30 of the Tax Reform Act of 1997. Even assuming that their individual members are taxpayers, respondents
maintain that a taxpayer suit will not prosper as E.O. No. 185 does not require additional appropriation for its
implementation. As the petition can be decided without passing on the validity of the subject executive order,
respondents conclude that the same should be forthwith dismissed.

Even on the merits, respondents advance the view that the petition must fail as the administrative supervision
granted by the Labor Code to the NLRC Chairman over the NLRC, its regional branches and personnel, does not
place them beyond the President’s broader power of control and supervision, a power conferred no less than by the
Constitution in Section 17, Article VII thereof. Thus, in the exercise of the President’s power of control and
supervision, he can generally oversee the operations of the NLRC, its regional branches and personnel thru his alter
ego, the Secretary of Labor, pursuant to the doctrine of qualified political agency.

In their Reply,5 petitioners affirm their locus standi contending that they are suing for and in behalf of their members
– estimated to be more or less fifty thousand (50,000) workers – who are the real parties to be affected by the
resolution of this Court. They likewise maintain that they are suing in behalf of the employees of the NLRC who have
pending cases for dismissal. Thus, possessed of the necessary standing, petitioners theorize that the issue before
this Court must necessarily be decided as it involves an act of the Chief Executive amending a provision of law.
For clarity, E.O. No. 185 is hereby quoted:

EXECUTIVE ORDER NO. 185

AUTHORIZING THE SECRETARY OF LABOR AND EMPLOYMENT TO EXERCISE ADMINISTRATIVE

SUPERVISION OVER THE NATIONAL LABOR RELATIONS COMMISSION

WHEREAS, Section 17, Article VII of the Constitution provides that the President shall have control of all executive
departments, bureaus and offices and shall ensure that the laws be faithfully executed;

WHEREAS, the National Labor Relations Commission (NLRC) which was created by virtue of Presidential Decree
No. 442, otherwise known as the "Labor Code of the Philippines," is an agency under the Executive Department and
was originally envisaged as being an integral part of the Department (then Ministry) of Labor and Employment
(DOLE) under the administrative supervision of the Secretary of Labor and Employment ("Secretary of Labor");

WHEREAS, upon the issuance of Executive Order No. 292, otherwise known as the "Revised Administrative Code
of 1987" (the "Administrative Code"), the NLRC, by virtue of Section 25, Chapter 6, Title VII, Book IV thereof,
became an agency attached to the DOLE for policy and program coordination and administrative supervision;

WHEREAS, Article 213 of the Labor Code and Section 25, Chapter 6, Title VII, Book IV of the Administrative Code
were amended by Republic Act. No. 6715 approved on March 2, 1989, which provides that the NLRC shall be
attached to the DOLE for program and policy coordination only and transferred administrative supervision over the
NLRC, all its regional branches and personnel to the NLRC Chairman;

WHEREAS, Section 16, Article III of the Constitution guarantees the right of all persons to a speedy disposition of
their cases before all judicial, quasi-judicial and administrative bodies;

WHEREAS, the Secretary of Labor, after evaluating the NLRC’s performance record in the last five (5) years,
including the rate of disposition of pending cases before it, has informed the President that there is a need to
expedite the disposition of labor cases pending before the NLRC and all its regional and sub-regional branches or
provincial extension units and initiate potent measures to prevent graft and corruption therein so as to reform its
systems and personnel, as well as infuse the organization with a sense of public service in consonance with the
imperative of change for the greater interest of the people;

WHEREAS, after consultations with the relevant sectors, the Secretary of Labor has recommended that the
President, pursuant to her powers under the Constitution and existing laws, authorize the Secretary of Labor to
exercise administrative supervision over the NLRC and all its regional and sub-regional branches or provincial
extension units with the objective of improving the rate of disposition of pending cases and institute adequate
measures for the prevention of graft and corruption within the said agency;

NOW, THEREFORE, I, GLORIA MACAPAGAL ARROYO, President of the Republic of the Philippines, by virtue of
the powers vested in me by the Constitution and existing laws, do hereby order:

SECTION 1. Authority To Exercise Administrative Supervision. – The Secretary of Labor is hereby authorized to
exercise administrative supervision over the NLRC, its regional branches and all its personnel, including the
Executive Labor Arbiters and Labor Arbiters, with the objective of improving the rate of disposition of cases pending
before it and its regional and sub-regional branches or provincial extension units and to institute adequate measures
for the prevention of graft and corruption within the said agency.

For this purpose, the Secretary of Labor shall, among others:

a. Generally oversee the operations of the NLRC and its regional and sub-regional branches or provincial extension
units for the purpose of ensuring that cases pending before them are decided or resolved expeditiously;

b. Require the submission of reports as the Secretary of Labor may deem necessary;

c. Initiate measures within the agency to prevent graft and corruption, including but not limited to, the conduct of
management audits, performance evaluations and inspections to determine compliance with established policies,
standards and guidelines;

d. To take such action as may be necessary for the proper performance of official functions, including rectification of
violations, abuses and other forms of mal-administration; and

e. Investigate, on its own or upon complaint, matters involving disciplinary action against any of the NLRC’s
personnel, including Presidential appointees, in accordance with existing laws, rules and regulations. After
completing his/her investigation, the Secretary of Labor shall submit a report to the President on the investigation
conducted with a recommendation as to the penalty to be imposed or other action to be taken, including referral to
the Presidential Anti-Graft Commission (PAGC), the Office of the Ombudsman or any other office, committee,
commission, agency, department, instrumentality or branch of the government for appropriate action.

The authority conferred herein upon the Secretary of Labor shall not extend to the power to review, reverse, revise,
or modify the decisions of the NLRC in the exercise of its quasi-judicial functions (cf. Section 38(2) (b), Chapter 7,
Book IV, Administrative Code).
SECTION 2. Report to the Secretary of Labor. – The NLRC, through its Chairman, shall submit a report to the
Secretary of Labor within thirty (30) days from issuance of this Executive Order, on the following matters:

a. Performance Report/Audit for the last five (5) years, including list of pending cases and cases disposed of within
the said period by the NLRC en banc, by Division and by the Labor Arbiters in each of its regional and sub-regional
branches or provincial extension units;

b. Detailed Master Plan on how to liquidate its backlog of cases with clear timetables to clean up its dockets within
six (6) months from the issuance hereof;

c. Complete inventory of its assets and list of personnel indicating their present positions and stations; and

d. Such other matters as may be required by the Secretary of Labor.

SECTION 3. Rules and Regulations. – The Secretary of Labor, in consultation with the Chairman of the NLRC, is
hereby authorized to issue rules and regulations for the effective implementation of the provisions of this Executive
Order.

SECTION 4. Repealing Clause. All laws, executive issuances, rules and regulations or parts thereof which are
inconsistent with the provisions of this Executive Order are hereby repealed, amended, or modified accordingly.

SECTION 5. Effectivity. – This Executive Order shall take effect immediately upon the completion of its publication
in the Official Gazette or in a newspaper of general circulation in the country.

City of Manila, March 10, 2003.6

The constitutionality of a governmental act having been challenged, it comes as no surprise that the first line of
defense is to question the standing of petitioners and the justiciability of herein case.

It is hornbook doctrine that the exercise of the power of judicial review requires the concurrence of the following
requisites, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party
raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the
necessity that the constitutional question be passed upon in order to decide the case.71awphi1.nét

As correctly pointed out by respondents, judicial review cannot be exercised in vacuo. The function of the courts is
to determine controversies between litigants and not to give advisory opinions.8 The power of judicial review can
only be exercised in connection with a bona fide case or controversy which involves the statute sought to be
reviewed.9

Even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the
constitutional question is brought before it by a party having the requisite standing to challenge it.10 Legal standing
or locus standi is 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."11 For a citizen to have standing, he
must establish that he has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the
government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a
favorable action.12

Petitioners have not shown that they have sustained or are in danger of sustaining any personal injury attributable to
the enactment of E.O. No. 185. As labor unions representing their members, it cannot be said that E.O. No. 185 will
prejudice their rights and interests considering that the scope of the authority conferred upon the Secretary of Labor
does not extend to the power to review, reverse, revise or modify the decisions of the NLRC in the exercise of its
quasi-judicial functions.13 Thus, only NLRC personnel who may find themselves the subject of the Secretary of
Labor’s disciplinary authority, conferred by Section 1(d) of the subject executive order, may be said to have a direct
and specific interest in raising the substantive issue herein. Moreover, and if at all, only Congress, and not
petitioners, can claim any injury14 from the alleged executive encroachment of the legislative function to amend,
modify and/or repeal laws.

Neither can standing be conferred on petitioners as taxpayers since petitioners have not established disbursement
of public funds in contravention of law or the Constitution.15 A taxpayer’s suit is properly brought only when there is
an exercise of the spending or taxing power of Congress.16 As correctly pointed out by respondents, E.O. No. 185
does not even require for its implementation additional appropriation.

All told, if we were to follow the strict rule on locus standi, this petition should be forthwith dismissed on that score.
The rule on standing, however, is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like
ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the matter is of
transcendental importance, of overarching significance to society, or of paramount public interest.171awphi1.nét

The question is, does the issue posed in this petition meet the exacting standard required for this Court to take the
liberal approach and recognize the standing of herein petitioners?

The instant petition fails to persuade us.

The subject matter of E.O. No. 185 is the grant of authority by the President to the Secretary of Labor to exercise
administrative supervision over the NLRC, its regional branches and all its personnel, including the Executive Labor
Arbiters and Labor Arbiters. Its impact, sans the challenge to its constitutionality, is thereby limited to the
departments to which it is addressed. Taking our cue from the early case of Olsen v. Herstein and Rafferty,18 the
subject executive order can be considered as nothing more or less than a command from a superior to an inferior. It
creates no relation except between the official who issued it and the officials who received it. It has for its object
simply the efficient and economical administration of the affairs of the department to which it is issued in accordance
with the law governing the subject matter. Administrative in its nature, the subject order does not pass beyond the
limits of the departments to which it is directed, hence, it has not created any rights in third persons, not even in the
fifty thousand or so union members being represented by petitioners who may or may not have pending cases
before the labor arbiters or the NLRC.

In fine, considering that the governmental act being questioned has a limited reach, its impact confined to corridors
of the executive department, this is not one of those exceptional occasions where the Court is justified in sweeping
aside a critical procedural requirement, rooted as it is in the constitutionally enshrined principle of separation of
powers. As succinctly put by Mr. Justice Reynato S. Puno in his dissenting opinion in the first Kilosbayan case:19

. . . [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors
to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no
means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly
to warrant the judiciary’s overruling the determination of a coordinate, democratically elected organ of
government."20 It thus goes to the very essence of representative democracies.

...

A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues
is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial
service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and
suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of
justice. To be sure, this is an evil that clearly confronts our judiciary today.

All things considered, whether or not E.O. No. 185 is indeed unconstitutional will have to await the proper party in a
proper case to assail its validity.

WHEREFORE, premises considered, the instant petition dated 27 March 2003 is hereby DISMISSED for lack of
merit. No costs.

SO ORDERED.

Puno, (Acting C.J.), Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,

Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and Garcia, JJ., concur.

Davide, Jr., C.J., on leave.

 EN BANC

G.R. No. 152895 June 15, 2004

OFELIA V. ARCETA, petitioner,

vs.
The Honorable MA. CELESTINA C. MANGROBANG, Presiding Judge, Branch 54, Metropolitan Trial Court of
Navotas, Metro Manila, respondent.

x--------------------------x

G.R. No. 153151 June 15, 2004

GLORIA S. DY, Petitioner,

vs.
The Honorable EDWIN B. RAMIZO, Presiding Judge, Branch 53, Metropolitan Trial Court of Caloocan
City, respondent.

RESOLUTION

QUISUMBING, J.:

For resolution are two consolidated1 petitions under Rule 65 of the Rules of Court, for certiorari, prohibition and
mandamus, with prayers for a temporary restraining order. Both assail the constitutionality of the Bouncing Checks
Law, also known as Batas Pambansa Bilang 22.

In G.R. No. 152895, petitioner Ofelia V. Arceta prays that we order the Metropolitan Trial Court (MeTC) of Navotas,
Metro Manila, Branch 54, to cease and desist from hearing Criminal Case No. 1599-CR for violation of B.P. Blg. 22,
and then dismiss the case against her. In G.R. No. 153151, petitioner Gloria S. Dy also prays that this Court order
the MeTC of Caloocan City to cease and desist from proceeding with Criminal Case No. 212183, and subsequently
dismiss the case against her. In fine, however, we find that what both petitioners seek is that the Court should revisit
and abandon the doctrine laid down in Lozano v. Martinez,2 which upheld the validity of the Bouncing Checks Law.

The facts of these cases are not in dispute.

1. G.R. No. 152895

The City Prosecutor of Navotas, Metro Manila charged Ofelia V. Arceta with violating B.P. Blg. 22 in an Information,
which was docketed as Criminal Case No. 1599-CR. The accusatory portion of said Information reads:

That on or about the 16th day of September 1998, in Navotas, Metro Manila, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously make or draw
and issue to OSCAR R. CASTRO, to apply on account or for value the check described below:

Check No.: 00082270

Drawn Against: The Region Bank

In the Amount of: ₱740,000.00

Date: December 21, 1998

Payable to: Cash

said accused well-knowing that at the time of issue Ofelia V. Arceta did not have sufficient funds or credit with the
drawee bank for the payment, which check when presented for payment within ninety (90) days from the date
thereof was subsequently dishonored by the drawee bank for reason "DRAWN AGAINST INSUFFICIENT FUNDS,"
and despite receipt of notice of such dishonor, the accused failed to pay said payee with the face amount of said
check or to make arrangement for full payment thereof within five (5) banking days after receiving notice.

CONTRARY TO LAW.3
Arceta did not move to have the charge against her dismissed or the Information quashed on the ground that B.P.
Blg. 22 was unconstitutional. She reasoned out that with the Lozano doctrine still in place, such a move would be an
exercise in futility for it was highly unlikely that the trial court would grant her motion and thus go against prevailing
jurisprudence.

On October 21, 2002,4 Arceta was arraigned and pleaded "not guilty" to the charge. However, she manifested that
her arraignment should be without prejudice to the present petition or to any other actions she would take to
suspend proceedings in the trial court.

Arceta then filed the instant petition.

2. G.R. No. 153151

The Office of the City Prosecutor of Caloocan filed a charge sheet against Gloria S. Dy for violation of the Bouncing
Checks Law, docketed by the MeTC of Caloocan City as Criminal Case No. 212183. Dy allegedly committed the
offense in this wise:

That on or about the month of January 2000 in Caloocan City, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously make and
issue Check No. 0000329230 drawn against PRUDENTIAL BANK in the amount of ₱2,500,000.00 dated January
19, 2000 to apply for value in favor of ANITA CHUA well knowing at the time of issue that she has no sufficient
funds in or credit with the drawee bank for the payment of such check in full upon its presentment which check was
subsequently dishonored for the reason "ACCOUNT CLOSED" and with intent to defraud failed and still fails to pay
the said complainant the amount of ₱2,500,000.00 despite receipt of notice from the drawee bank that said check
has been dishonored and had not been paid.

Contrary to Law.5

Like Arceta, Dy made no move to dismiss the charges against her on the ground that B.P. Blg. 22 was
unconstitutional. Dy likewise believed that any move on her part to quash the indictment or to dismiss the charges
on said ground would fail in view of the Lozano ruling. Instead, she filed a petition with this Court invoking its power
of judicial review to have the said law voided for Constitutional infirmity.

Both Arceta and Dy raise the following identical issues for our resolution:

[a] Does section 1 really penalize the act of issuing a check subsequently dishonored by the bank for lack of funds?

[b] What is the effect if the dishonored check is not paid pursuant to section 2 of BP 22?

[c] What is the effect if it is so paid?

[d] Does section 2 make BP 22 a debt collecting law under threat of imprisonment?

[e] Does BP 22 violate the constitutional proscription against imprisonment for non-payment of debt?

[f] Is BP 22 a valid exercise of the police power of the state?6

After minute scrutiny of petitioners’ submissions, we find that the basic issue being raised in these special civil
actions for certiorari, prohibition, and mandamus concern the unconstitutionality or invalidity of B.P. Blg. 22.
Otherwise put, the petitions constitute an oblique attack on the constitutionality of the Bouncing Checks Law, a
matter already passed upon by the Court through Justice (later Chief Justice) Pedro Yap almost two decades ago.
Petitioners add, however, among the pertinent issues one based on the observable but worrisome transformation of
certain metropolitan trial courts into seeming collection agencies of creditors whose complaints now clog the court
dockets.

But let us return to basics. When the issue of unconstitutionality of a legislative act is raised, it is the established
doctrine that the Court may exercise its power of judicial review only if the following requisites are present: (1) an
actual and appropriate case and controversy exists; (2) a personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question raised is the very lis mota of the case.7 Only when these requisites are satisfied may the
Court assume jurisdiction over a question of unconstitutionality or invalidity of an act of Congress. With due regard
to counsel’s spirited advocacy in both cases, we are unable to agree that the abovecited requisites have been
adequately met.

Perusal of these petitions reveals that they are primarily anchored on Rule 65, Section 1 8 of the 1997 Rules of Civil
Procedure. In a special civil action of certiorari the only question that may be raised is whether or not the respondent
has acted without or in excess of jurisdiction or with grave abuse of discretion. 9 Yet nowhere in these petitions is
there any allegation that the respondent judges acted with grave abuse of discretion amounting to lack or excess of
jurisdiction. A special civil action for certiorari will prosper only if a grave abuse of discretion is manifested.10

Noteworthy, the instant petitions are conspicuously devoid of any attachments or annexes in the form of a copy of
an order, decision, or resolution issued by the respondent judges so as to place them understandably within the
ambit of Rule 65. What are appended to the petitions are only copies of the Informations in the respective cases,
nothing else. Evidently, these petitions for a writ of certiorari, prohibition and mandamus do not qualify as the actual
and appropriate cases contemplated by the rules as the first requisite for the exercise of this Court’s power of
judicial review. For as the petitions clearly show on their faces petitioners have not come to us with sufficient cause
of action.

Instead, it appears to us that herein petitioners have placed the cart before the horse, figuratively speaking. Simply
put, they have ignored the hierarchy of courts outlined in Rule 65, Section 411 of the 1997 Rules of Civil Procedure.
Seeking judicial review at the earliest opportunity does not mean immediately elevating the matter to this Court.
Earliest opportunity means that the question of unconstitutionality of the act in question should have been
immediately raised in the proceedings in the court below. Thus, the petitioners should have moved to quash the
separate indictments or moved to dismiss the cases in the proceedings in the trial courts on the ground of
unconstitutionality of B.P. Blg. 22. But the records show that petitioners failed to initiate such moves in the
proceedings below. Needless to emphasize, this Court could not entertain questions on the invalidity of a statute
where that issue was not specifically raised, insisted upon, and adequately argued.12 Taking into account the early
stage of the trial proceedings below, the instant petitions are patently premature.

Nor do we find the constitutional question herein raised to be the very lis mota presented in the controversy below.
Every law has in its favor the presumption of constitutionality, and to justify its nullification, there must be a clear and
unequivocal breach of the Constitution, and not one that is doubtful, speculative or argumentative. 13 We have
examined the contentions of the petitioners carefully; but they still have to persuade us that B.P. Blg. 22 by itself or
in its implementation transgressed a provision of the Constitution. Even the thesis of petitioner Dy that the present
economic and financial crisis should be a basis to declare the Bouncing Checks Law constitutionally infirm deserves
but scant consideration. As we stressed in Lozano, it is precisely during trying times that there exists a most
compelling reason to strengthen faith and confidence in the financial system and any practice tending to destroy
confidence in checks as currency substitutes should be deterred, to prevent havoc in the trading and financial
communities. Further, while indeed the metropolitan trial courts may be burdened immensely by bouncing checks
cases now, that fact is immaterial to the alleged invalidity of the law being assailed. The solution to the clogging of
dockets in lower courts lies elsewhere.

WHEREFORE, the instant petitions are DISMISSED for utter lack of merit.

SO ORDERED.

Davide, Jr., Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. Nos. 158090 October 4, 2010

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), Petitioner,

vs.
HEIRS OF FERNANDO F. CABALLERO, represented by his daughter, JOCELYN G.
CABALLERO,Respondents.

DECISION

PERALTA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to set aside the
Decision1 and the Resolution,2 dated December 17, 2002 and April 29, 2003, respectively, of the Court of Appeals
(CA) in CA-G.R. CV. No. 49300.

The antecedents are as follows:

Respondent Fernando C. Caballero (Fernando) was the registered owner of a residential lot designated as Lot No.
3355, Ts-268, covered by TCT No. T-16035 of the Register of Deeds of Cotabato, containing an area of 800 square
meters and situated at Rizal Street, Mlang, Cotabato. On the said lot, respondent built a residential/commercial
building consisting of two (2) stories.

On March 7, 1968, Fernando and his wife, Sylvia Caballero, secured a loan from petitioner Government Service
Insurance System (GSIS) in the amount of ₱20,000.00, as evidenced by a promissory note. Fernando and his wife
likewise executed a real estate mortgage on the same date, mortgaging the afore-stated property as security.

Fernando defaulted on the payment of his loan with the GSIS. Hence, on January 20, 1973, the mortgage covering
the subject property was foreclosed, and on March 26, 1973, the same was sold at a public auction where the
petitioner was the only bidder in the amount of ₱36,283.00. For failure of Fernando to redeem the said property
within the designated period, petitioner executed an Affidavit of Consolidation of Ownership on September 5, 1975.
Consequently, TCT No. T-16035 was cancelled and TCT No. T-45874 was issued in the name of petitioner.

On November 26, 1975, petitioner wrote a letter to Fernando, informing him of the consolidation of title in its favor,
and requesting payment of monthly rental in view of Fernando's continued occupancy of the subject property. In
reply, Fernando requested that he be allowed to repurchase the same through partial payments. Negotiation as to
the repurchase by Fernando of the subject property went on for several years, but no agreement was reached
between the parties.

On January 16, 1989, petitioner scheduled the subject property for public bidding. On the scheduled date of bidding,
Fernando's daughter, Jocelyn Caballero, submitted a bid in the amount of ₱350,000.00, while Carmelita Mercantile
Trading Corporation (CMTC) submitted a bid in the amount of ₱450,000.00. Since CMTC was the highest bidder, it
was awarded the subject property. On May 16, 1989, the Board of Trustees of the GSIS issued Resolution No. 199
confirming the award of the subject property to CMTC for a total consideration of ₱450,000.00. Thereafter, a Deed
of Absolute Sale was executed between petitioner and CMTC on July 27, 1989, transferring the subject property to
CMTC. Consequently, TCT No. T-45874 in the name of GSIS was cancelled, and TCT No. T-76183 was issued in
the name of CMTC.

Due to the foregoing, Fernando, represented by his daughter and attorney-in-fact, Jocelyn Caballero, filed with the
Regional Trial Court (RTC) of Kabacan, Cotabato a Complaint3 against CMTC, the GSIS and its responsible
officers, and the Register of Deeds of Kidapawan, Cotabato. Fernando prayed, among others, that judgment be
rendered: declaring GSIS Board of Trustees Resolution No. 199, dated May 16, 1989, null and void; declaring the
Deed of Absolute Sale between petitioner and CMTC null and void ab initio; declaring TCT No. 76183 of the
Register of Deeds of Kidapawan, Cotabato, likewise, null and void ab initio; declaring the bid made by Fernando in
the amount of ₱350,000.00 for the repurchase of his property as the winning bid; and ordering petitioner to execute
the corresponding Deed of Sale of the subject property in favor of Fernando. He also prayed for payment of moral
damages, exemplary damages, attorney's fees and litigation expenses.

In his complaint, Fernando alleged that there were irregularities in the conduct of the bidding. CMTC misrepresented
itself to be wholly owned by Filipino citizens. It misrepresented its working capital. Its representative Carmelita Ang
Hao had no prior authority from its board of directors in an appropriate board resolution to participate in the bidding.
The corporation is not authorized to acquire real estate or invest its funds for purposes other than its primary
purpose. Fernando further alleged that the GSIS allowed CMTC to bid despite knowledge that said corporation has
no authority to do so. The GSIS also disregarded Fernando's prior right to buy back his family home and lot in
violation of the laws. The Register of Deeds of Cotabato acted with abuse of power and authority when it issued the
TCT in favor of CMTC without requiring the CMTC to submit its supporting papers as required by the law.

Petitioner and its officers filed their Answer with Affirmative Defenses and Counterclaim.4 The GSIS alleged that
Fernando lost his right of redemption. He was given the chance to repurchase the property; however, he did not
avail of such option compelling the GSIS to dispose of the property by public bidding as mandated by law. There is
also no "prior right to buy back" that can be exercised by Fernando. Further, it averred that the articles of
incorporation and other papers of CMTC were all in order. In its counterclaim, petitioner alleged that Fernando owed
petitioner the sum of ₱130,365.81, representing back rentals, including additional interests from January 1973 to
February 1987, and the additional amount of ₱249,800.00, excluding applicable interests, representing rentals
Fernando unlawfully collected from Carmelita Ang Hao from January 1973 to February 1988.

After trial, the RTC, in its Decision5 dated September 27, 1994, ruled in favor of petitioner and dismissed the
complaint. In the same decision, the trial court granted petitioner's counterclaim and directed Fernando to pay
petitioner the rentals paid by CMTC in the amount of ₱249,800.00. The foregoing amount was collected by
Fernando from the CMTC and represents payment which was not turned over to petitioner, which was entitled to
receive the rent from the date of the consolidation of its ownership over the subject property.

Fernando filed a motion for reconsideration, which was denied by the RTC in an Order dated March 27, 1995.

Aggrieved by the Decision, respondent filed a Notice of Appeal.6 The CA, in its Decision dated December 17, 2002,
affirmed the decision of the RTC with the modification that the portion of the judgment ordering Fernando to pay
rentals in the amount of ₱249,800.00, in favor of petitioner, be deleted. Petitioner filed a motion for reconsideration,
which the CA denied in a Resolution dated April 29, 2003. Hence, the instant petition.

An Ex Parte Motion for Substitution of Party,7 dated July 18, 2003, was filed by the surviving heirs of Fernando, who
died on February 12, 2002. They prayed that they be allowed to be substituted for the deceased, as respondents in
this case.

Petitioner enumerated the following grounds in support of its petition:

THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN HOLDING THAT GSIS'
COUNTERCLAIM, AMONG OTHERS, OF ₱249,800.00 REPRESENTING RENTALS COLLECTED BY PRIVATE
RESPONDENT FROM CARMELITA MERCANTILE TRADING CORPORATION IS IN THE NATURE OF A
PERMISSIVE COUNTERCLAIM WHICH REQUIRED THE PAYMENT BY GSIS OF DOCKET FEES BEFORE THE
TRIAL COURT CAN ACQUIRE JURISDICTION OVER SAID COUNTERCLAIM.

II

THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN HOLDING THAT GSIS'
DOCUMENTARY EVIDENCE SUPPORTING ITS CLAIM OF ₱249,800.00 LACKS PROPER IDENTIFICATION. 8

The petition of the GSIS seeks the review of the CA's Decision insofar as it deleted the trial court's award of
₱249,800.00 in its favor representing rentals collected by Fernando from the CMTC.

In their Memorandum, respondents’ claim that CMTC cannot purchase real estate or invest its funds in any purpose
other than its primary purpose for which it was organized in the absence of a corporate board resolution; the bid
award, deed of absolute sale and TCT No. T-76183, issued in favor of the CMTC, should be nullified; the trial court
erred in concluding that GSIS personnel have regularly performed their official duty when they conducted the public
bidding; Fernando, as former owner of the subject property and former member of the GSIS, has the preemptive
right to repurchase the foreclosed property.

These additional averments cannot be taken cognizance by the Court, because they were substantially
respondents’ arguments in their petition for review on certiorari earlier filed before Us and docketed as G.R. No.
156609. Records show that said petition was denied by the Court in a Resolution 9 dated April 23, 2003, for
petitioners’ (respondents herein) failure to sufficiently show that the Court of Appeals committed any reversible error
in the challenged decision as to warrant the exercise by this Court of its discretionary appellate jurisdiction. 10 Said
resolution became final and executory on June 9, 2003.11 Respondents’ attempt to re-litigate claims already passed
upon and resolved with finality by the Court in G.R. No. 156609 cannot be allowed.

Going now to the first assigned error, petitioner submits that its counterclaim for the rentals collected by Fernando
from the CMTC is in the nature of a compulsory counterclaim in the original action of Fernando against petitioner for
annulment of bid award, deed of absolute sale and TCT No. 76183. Respondents, on the other hand, alleged that
petitioner's counterclaim is permissive and its failure to pay the prescribed docket fees results into the dismissal of
its claim.

To determine whether a counterclaim is compulsory or not, the Court has devised the following tests: (a) Are the
issues of fact and law raised by the claim and by the counterclaim largely the same? (b) Would res judicata bar a
subsequent suit on defendant’s claims, absent the compulsory counterclaim rule? (c) Will substantially the same
evidence support or refute plaintiff’s claim as well as the defendant’s counterclaim? and (d) Is there any logical
relation between the claim and the counterclaim? A positive answer to all four questions would indicate that the
counterclaim is compulsory.12

Tested against the above-mentioned criteria, this Court agrees with the CA's view that petitioner's counterclaim for
the recovery of the amount representing rentals collected by Fernando from the CMTC is permissive. The evidence
needed by Fernando to cause the annulment of the bid award, deed of absolute sale and TCT is different from that
required to establish petitioner's claim for the recovery of rentals.
The issue in the main action, i.e., the nullity or validity of the bid award, deed of absolute sale and TCT in favor of
CMTC, is entirely different from the issue in the counterclaim, i.e., whether petitioner is entitled to receive the
CMTC's rent payments over the subject property when petitioner became the owner of the subject property by virtue
of the consolidation of ownership of the property in its favor.

The rule in permissive counterclaims is that for the trial court to acquire jurisdiction, the counterclaimant is bound to
pay the prescribed docket fees.13 This, petitioner did not do, because it asserted that its claim for the collection of
rental payments was a compulsory counterclaim. Since petitioner failed to pay the docket fees, the RTC did not
acquire jurisdiction over its permissive counterclaim. The judgment rendered by the RTC, insofar as it ordered
Fernando to pay petitioner the rentals which he collected from CMTC, is considered null and void. Any decision
rendered without jurisdiction is a total nullity and may be struck down at any time, even on appeal before this
Court.14

Petitioner further argues that assuming that its counterclaim is permissive, the trial court has jurisdiction to try and
decide the same, considering petitioner's exemption from all kinds of fees.

In In Re: Petition for Recognition of the Exemption of the Government Service Insurance System from Payment of
Legal Fees,15 the Court ruled that the provision in the Charter of the GSIS, i.e., Section 39 of Republic Act No. 8291,
which exempts it from "all taxes, assessments, fees, charges or duties of all kinds," cannot operate to exempt it from
the payment of legal fees. This was because, unlike the 1935 and 1973 Constitutions, which empowered Congress
to repeal, alter or supplement the rules of the Supreme Court concerning pleading, practice and procedure, the 1987
Constitution removed this power from Congress. Hence, the Supreme Court now has the sole authority to
promulgate rules concerning pleading, practice and procedure in all courts.

In said case, the Court ruled that:

The separation of powers among the three co-equal branches of our government has erected an impregnable wall
that keeps the power to promulgate rules of pleading, practice and procedure within the sole province of this Court.
The other branches trespass upon this prerogative if they enact laws or issue orders that effectively repeal, alter or
modify any of the procedural rules promulgated by this Court. Viewed from this perspective, the claim of a legislative
grant of exemption from the payment of legal fees under Section 39 of RA 8291 necessarily fails.

Congress could not have carved out an exemption for the GSIS from the payment of legal fees without
transgressing another equally important institutional safeguard of the Court's independence − fiscal autonomy.
Fiscal autonomy recognizes the power and authority of the Court to levy, assess and collect fees, including legal
fees. Moreover, legal fees under Rule 141 have two basic components, the Judiciary Development Fund (JDF) and
the Special Allowance for the Judiciary Fund (SAJF). The laws which established the JDF and the SAJF expressly
declare the identical purpose of these funds to "guarantee the independence of the Judiciary as mandated by the
Constitution and public policy." Legal fees therefore do not only constitute a vital source of the Court's financial
resources but also comprise an essential element of the Court's fiscal independence. Any exemption from the
payment of legal fees granted by Congress to government-owned or controlled corporations and local government
units will necessarily reduce the JDF and the SAJF. Undoubtedly, such situation is constitutionally infirm for it
impairs the Court's guaranteed fiscal autonomy and erodes its independence.

Petitioner also invoked our ruling in Sun Insurance Office, Ltd. v. Judge Asuncion,16 where the Court held that:

xxxx

3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the
prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the
same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the
judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and
assess and collect the additional fee.

In Ayala Corporation v. Madayag,17 the Court, in interpreting the third rule laid down in Sun Insurance Office, Ltd. v.
Judge Asuncion regarding awards of claims not specified in the pleading, held that the same refers only to damages
arising after the filing of the complaint or similar pleading as to which the additional filing fee therefor shall constitute
a lien on the judgment.

The amount of any claim for damages, therefore, arising on or before the filing of the complaint or any pleading
should be specified. While it is true that the determination of certain damages as exemplary or corrective damages
is left to the sound discretion of the court, it is the duty of the parties claiming such damages to specify the amount
sought on the basis of which the court may make a proper determination, and for the proper assessment of the
appropriate docket fees. The exception contemplated as to claims not specified or to claims although specified are
left for determination of the court is limited only to any damages that may arise after the filing of the complaint or
similar pleading for then it will not be possible for the claimant to specify nor speculate as to the amount thereof.
(Emphasis supplied.)1avvphi1

Petitioner's claim for payment of rentals collected by Fernando from the CMTC did not arise after the filing of the
complaint; hence, the rule laid down in Sun Insurance finds no application in the present case.

Due to the non-payment of docket fees on petitioner's counterclaim, the trial court never acquired jurisdiction over it
and, thus, there is no need to discuss the second issue raised by petitioner.
WHEREFORE, the petition is DENIED. The Decision and the Resolution, dated December 17, 2002 and April 29,
2003, respectively, of the Court of Appeals in CA-G.R. CV. No. 49300, are AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 202242 July 17, 2012

FRANCISCO I. CHAVEZ, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS,
JR.,Respondents.

DECISION

MENDOZA, J.:

The issue at hand has been in hibernation until the unexpected departure of Chief Justice Renato C. Corona on May
29, 2012, and the nomination of former Solicitor General Francisco I. Chavez (petitioner), as his potential successor,
triggered the filing of this case. The issue has constantly been nagging legal minds, yet remained dormant for lack of
constitutional challenge.

As the matter is of extreme urgency considering the constitutional deadline in the process of selecting the nominees
for the vacant seat of the Chief Justice, the Court cannot delay the resolution of the issue a day longer. Relegating it
in the meantime to the back burner is not an option.

Does the first paragraph of Section 8, Article VIII of the 1987 Constitution allow more than one (1) member of
Congress to sit in the JBC? Is the practice of having two (2) representatives from each house of Congress with one
(1) vote each sanctioned by the Constitution? These are the pivotal questions to be resolved in this original action
for prohibition and injunction.

Long before the naissance of the present Constitution, the annals of history bear witness to the fact that the exercise
of appointing members of the Judiciary has always been the exclusive prerogative of the executive and legislative
branches of the government. Like their progenitor of American origins, both the Malolos Constitution 1 and the 1935
Constitution2 had vested the power to appoint the members of the Judiciary in the President, subject to confirmation
by the Commission on Appointments. It was during these times that the country became witness to the deplorable
practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate themselves with the
members of the legislative body.3

Then, with the fusion of executive and legislative power under the 1973 Constitution, 4 the appointment of judges and
justices was no longer subject to the scrutiny of another body. It was absolute, except that the appointees must have
all the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the Judiciary from political pressure and partisan
activities,5 the members of the Constitutional Commission saw the need to create a separate, competent and
independent body to recommend nominees to the President. Thus, it conceived of a body representative of all the
stakeholders in the judicial appointment process and called it the Judicial and Bar Council (JBC). Its composition,
term and functions are provided under Section 8, Article VIII of the Constitution, viz:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed
of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex
officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court,
and a representative of the private sector.

(2) The regular members of the Council shall be appointed by the President for a term of four years with the consent
of the Commission on Appointments. Of the Members first appointed, the representative of the Integrated Bar shall
serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of
the private sector for one year.

(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its
proceedings.

(4) The regular Members of the Council shall receive such emoluments as may be determined by the Supreme
Court. The Supreme Court shall provide in its annual budget the appropriations for the Council.

(5) The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such
other functions and duties as the Supreme Court may assign to it.

In compliance therewith, Congress, from the moment of the creation of the JBC, designated one representative to sit
in the JBC to act as one of the ex officio members.6 Perhaps in order to give equal opportunity to both houses to sit
in the exclusive body, the House of Representatives and the Senate would send alternate representatives to the
JBC. In other words, Congress had only one (1) representative.
In 1994, the composition of the JBC was substantially altered. Instead of having only seven (7) members, an eighth
(8th) member was added to the JBC as two (2) representatives from Congress began sitting in the JBC - one from
the House of Representatives and one from the Senate, with each having one-half (1/2) of a vote.7 Then, curiously,
the JBC En Banc, in separate meetings held in 2000 and 2001, decided to allow the representatives from the
Senate and the House of Representatives one full vote each.8 At present, Senator Francis Joseph G. Escudero and
Congressman Niel C. Tupas, Jr. (respondents) simultaneously sit in the JBC as representatives of the legislature.

It is this practice that petitioner has questioned in this petition,9 setting forth the following

GROUNDS FOR ALLOWANCE OF THE PETITION

Article VIII, Section 8, Paragraph 1 is clear, definite and needs no interpretation in that the JBC shall have only one
representative from Congress.

II

The framers of the Constitution clearly envisioned, contemplated and decided on a JBC composed of only seven (7)
members.

III

Had the framers of the Constitution intended that the JBC composed of the one member from the Senate and one
member from the House of Representatives, they could have easily said so as they did in the other provisions of the
Constitution.

IV

The composition of the JBC providing for three ex-officio members is purposely designed for a balanced
representation of each of the three branches of the government.

One of the two (2) members of the JBC from Congress has no right (not even ½ right) to sit in the said constitutional
body and perform the duties and functions of a member thereof.

VI

The JBC cannot conduct valid proceedings as its composition is illegal and unconstitutional.10

On July 9, 2012, the JBC filed its Comment.11 It, however, abstained from recommending on how this constitutional
issue should be disposed in gracious deference to the wisdom of the Court. Nonetheless, the JBC was more than
generous enough to offer the insights of various personalities previously connected with it.12

Through the Office of the Solicitor General (OSG), respondents defended their position as members of the JBC in
their Comment13 filed on July 12, 2012. According to them, the crux of the controversy is the phrase "a
representative of Congress."14 Reverting to the basics, they cite Section 1, Article VI of the Constitution15 to
determine the meaning of the term

"Congress." It is their theory that the two houses, the Senate and the House of Representatives, are permanent and
mandatory components of "Congress," such that the absence of either divests the term of its substantive meaning
as expressed under the Constitution. In simplistic terms, the House of Representatives, without the Senate and vice-
versa, is not Congress.16 Bicameralism, as the system of choice by the Framers, requires that both houses exercise
their respective powers in the performance of its mandated duty which is to legislate. Thus, when Section 8(1),
Article VIII of the Constitution speaks of "a representative from Congress," it should mean one representative each
from both Houses which comprise the entire Congress.17

Tracing the subject provision’s history, the respondents claim that when the JBC was established, the Framers
originally envisioned a unicameral legislative body, thereby allocating "a representative of the National Assembly" to
the JBC. The phrase, however, was not modified to

aptly jive with the change to bicameralism, the legislative system finally adopted by the Constitutional Commission
on July 21, 1986. According to respondents, if the Commissioners were made aware of the consequence of having
a bicameral legislature instead of a unicameral one, they would have made the corresponding adjustment in the
representation of Congress in the JBC.18

The ambiguity having resulted from a plain case of inadvertence, the respondents urge the Court to look beyond the
letter of the disputed provision because the literal adherence to its language would produce absurdity and
incongruity to the bicameral nature of Congress.19 In other words, placing either of the respondents in the JBC will
effectively deprive a house of Congress of its representation. In the same vein, the electorate represented by
Members of Congress will lose their only opportunity to participate in the nomination process for the members of the
Judiciary, effectively diminishing the republican nature of the government.20
The respondents further argue that the allowance of two (2) representatives of Congress to be members of the JBC
does not render the latter’s purpose nugatory. While they admit that the purpose in creating the JBC was to insulate
appointments to the Judiciary from political influence, they likewise cautioned the Court that this constitutional vision
did not intend to entirely preclude political factor in said appointments. Therefore, no evil should be perceived in the
current set-up of the JBC because two (2) members coming from Congress, whose membership to certain political
parties is irrelevant, does not necessarily amplify political partisanship in the JBC. In fact, the presence of two (2)
members from Congress will most likely provide balance as against the other six (6) members who are undeniably
presidential appointees.21

The Issues

In resolving the procedural and substantive issues arising from the petition, as well as the myriad of counter-
arguments proffered by the respondents, the Court synthesized them into two:

(1) Whether or not the conditions sine qua non for the exercise of the power of judicial review have been met in this
case; and

(2) Whether or not the current practice of the JBC to perform its functions with eight (8) members, two (2) of whom
are members of Congress, runs counter to the letter and spirit of the 1987 Constitution.

The Power of Judicial Review

In its Comment, the JBC submits that petitioner is clothed with locus standi to file the petition, as a citizen and
taxpayer, who has been nominated to the position of Chief Justice.22

For the respondents, however, petitioner has no "real interest" in questioning the constitutionality of the JBC’s
current composition.23 As outlined in jurisprudence, it is well-settled that for locus standi to lie, petitioner must exhibit
that he has been denied, or is about to be denied, of a personal right or privilege to which he is entitled. Here,
petitioner failed to manifest his acceptance of his recommendation to the position of Chief Justice, thereby divesting
him of a substantial interest in the controversy. Without his name in the official list of applicants for the post, the
respondents claim that there is no personal stake on the part of petitioner that would justify his outcry of
unconstitutionality. Moreover, the mere allegation that this case is of transcendental importance does not excuse the
waiver of the rule on locus standi, because, in the first place, the case lacks the requisites therefor. The respondents
also question petitioner’s belated filing of the petition.24 Being aware that the current composition of the JBC has
been in practice since 1994, petitioner’s silence for eighteen (18) years show that the constitutional issue being
raised before the Court does not comply with the "earliest possible opportunity" requirement.

Before addressing the above issues in seriatim, the Court deems it proper to first ascertain the nature of the petition.
Pursuant to the rule that the nature of an action is determined by the allegations therein and the character of the
relief sought, the Court views the petition as essentially an action for declaratory relief under Rule 63 of the 1997
Rules of Civil Procedure.25

The Constitution as the subject matter, and the validity and construction of Section 8 (1), Article VIII as the issue
raised, the petition should properly be considered as that which would result in the adjudication of rights sans the
execution process because the only relief to be granted is the very declaration of the rights under the document
sought to be construed. It being so, the original jurisdiction over the petition lies with the appropriate Regional Trial
Court (RTC). Notwithstanding the fact that only questions of law are raised in the petition, an action for declaratory
relief is not among those within the original jurisdiction of this Court as provided in Section 5, Article VIII of the
Constitution.26

At any rate, due to its serious implications, not only to government processes involved but also to the sanctity of the
Constitution, the Court deems it more prudent to take cognizance of it. After all, the petition is also for prohibition
under Rule 65 seeking to enjoin Congress from sending two (2) representatives with one (1) full vote each to the
JBC.

The Courts’ power of judicial review, like almost all other powers conferred by the Constitution, is subject to several
limitations, namely: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have "standing" to challenge; 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.27 Generally, a party will be allowed to litigate only when these conditions sine qua non are
present, especially when the constitutionality of an act by a co-equal branch of government is put in issue.

Anent locus standi, the question to be answered is this: does the party possess a personal stake in the outcome of
the controversy as to assure that there is real, concrete and legal conflict of rights and duties from the issues
presented before the Court? In David v. Macapagal-Arroyo,28 the Court summarized the rules on locus standi as
culled from jurisprudence. There, it was held that taxpayers, voters, concerned citizens, and legislators may be
accorded standing to sue, provided that the following requirements are met: (1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in
question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and (5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
In public suits, the plaintiff, representing the general public, asserts a "public right" in assailing an allegedly illegal
official action. The plaintiff may be a person who is affected no differently from any other person, and can be suing
as a "stranger," or as a "citizen" or "taxpayer." Thus, taxpayers have been 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 public
funds are wasted through the enforcement of an invalid or unconstitutional law. Of greater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute.29

In this case, petitioner seeks judicial intervention as a taxpayer, a concerned citizen and a nominee to the position of
Chief Justice of the Supreme Court. As a taxpayer, petitioner invokes his right to demand that the taxes he and the
rest of the citizenry have been paying to the government are spent for lawful purposes. According to petitioner,
"since the JBC derives financial support for its functions, operation and proceedings from taxes paid, petitioner
possesses as taxpayer both right and legal standing to demand that the JBC’s proceedings are not tainted with
illegality and that its composition and actions do not violate the Constitution."30

Notably, petitioner takes pains in enumerating past actions that he had brought before the Court where his legal
standing was sustained. Although this inventory is unnecessary to establish locus standi because obviously, not
every case before the Court exhibits similar issues and facts, the Court recognizes the petitioner’s right to sue in this
case. Clearly, petitioner has the legal standing to bring the present action because he has a personal stake in the
outcome of this controversy.

The Court disagrees with the respondents’ contention that petitioner lost his standing to sue because he is not an
official nominee for the post of Chief Justice. While it is true that a "personal stake" on the case is imperative to have
locus standi, this is not to say that only official nominees for the post of Chief Justice can come to the Court and
question the JBC composition for being unconstitutional. The JBC likewise screens and nominates other members
of the Judiciary. Albeit heavily publicized in this regard, the JBC’s duty is not at all limited to the nominations for the
highest magistrate in the land. A vast number of aspirants to judicial posts all over the country may be affected by
the Court’s ruling. More importantly, the legality of the very process of nominations to the positions in the Judiciary is
the nucleus of the controversy. The Court considers this a constitutional issue that must be passed upon, lest a
constitutional process be plagued by misgivings, doubts and worse, mistrust. Hence, a citizen has a right to bring
this question to the Court, clothed with legal standing and at the same time, armed with issues of transcendental
importance to society. The claim that the composition of the JBC is illegal and unconstitutional is an object of
concern, not just for a nominee to a judicial post, but for all citizens who have the right to seek judicial intervention
for rectification of legal blunders.

With respect to the question of transcendental importance, it is not difficult to perceive from the opposing arguments
of the parties that the determinants established in jurisprudence are attendant in this case: (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 the questions being raised.31 The allegations of constitutional
violations in this case are not empty attacks on the wisdom of the other branches of the government. The allegations
are substantiated by facts and, therefore, deserve an evaluation from the Court. The Court need not elaborate on
the legal and societal ramifications of the issues raised. It cannot be gainsaid that the JBC is a constitutional
innovation crucial in the selection of the magistrates in our judicial system.

The Composition of the JBC

Central to the resolution of the foregoing petition is an understanding of the composition of the JBC as stated in the
first paragraph of Section 8, Article VIII of the Constitution. It reads:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed
of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex
officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court,
and a representative of the private sector.

From a simple reading of the above-quoted provision, it can readily be discerned that the provision is clear and
unambiguous. The first paragraph calls for the creation of a JBC and places the same under the supervision of the
Court. Then it goes to its composition where the regular members are enumerated: a representative of the
Integrated Bar, a professor of law, a retired member of the Court and a representative from the private sector. On
the second part lies the crux of the present controversy. It enumerates the ex officio or special members of the JBC
composed of the Chief Justice, who shall be its Chairman, the Secretary of Justice and "a representative of
Congress."

As petitioner correctly posits, the use of the singular letter "a" preceding "representative of Congress" is unequivocal
and leaves no room for any other construction. It is indicative of what the members of the Constitutional Commission
had in mind, that is, Congress may designate only one (1) representative to the JBC. Had it been the intention that
more than one (1) representative from the legislature would sit in the JBC, the Framers could have, in no uncertain
terms, so provided.

One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and
free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.32 It is a well-
settled principle of constitutional construction that the language employed in the Constitution must be given their
ordinary meaning except where technical terms are employed. As much as possible, the words of the Constitution
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.33 Verba legis non est recedendum – from the words of a statute there
should be no departure.34

The raison d’ être for the rule is essentially two-fold: First, because it is assumed that the words in which
constitutional provisions are couched express the objective sought to be attained;35 and second, because the
Constitution is not primarily a lawyer’s document but essentially that of the people, in whose consciousness it should
ever be present as an important condition for the rule of law to prevail. 36

Moreover, under the maxim noscitur a sociis, where a particular word or phrase is ambiguous in itself or is equally
susceptible of various meanings, its correct construction may be made clear and specific by considering the
company of words in which it is founded or with which it is associated.37 This is because a word or phrase in a
statute is always used in association with other words or phrases, and its meaning may, thus, be modified or
restricted by the latter.38 The particular words, clauses and phrases should not be studied as detached and isolated
expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts
and in order to produce a harmonious whole. A statute must be so construed as to harmonize and give effect to all
its provisions whenever possible.39 In short, every meaning to be given to each word or phrase must be ascertained
from the context of the body of the statute since a word or phrase in a statute is always used in association with
other words or phrases and its meaning may be modified or restricted by the latter.

Applying the foregoing principle to this case, it becomes apparent that the word "Congress" used in Article VIII,
Section 8(1) of the Constitution is used in its generic sense. No particular allusion whatsoever is made on whether
the Senate or the House of Representatives is being referred to, but that, in either case, only a singular
representative may be allowed to sit in the JBC. The foregoing declaration is but sensible, since, as pointed out by
an esteemed former member of the Court and consultant of the JBC in his memorandum,40 "from the enumeration of
the membership of the JBC, it is patent that each category of members pertained to a single individual only."41

Indeed, the spirit and reason of the statute may be passed upon where a literal meaning would lead to absurdity,
contradiction, injustice, or defeat the clear purpose of the lawmakers.42 Not any of these instances, however, is
present in the case at bench. Considering that the language of the subject constitutional provision is plain and
unambiguous, there is no need to resort extrinsic aids such as records of the Constitutional Commission.

Nevertheless, even if the Court should proceed to look into the minds of the members of the Constitutional
Commission, it is undeniable from the records thereof that it was intended that the JBC be composed of seven (7)
members only. Thus:

MR. RODRIGO: Let me go to another point then.

On page 2, Section 5, there is a novel provision about the appointments of members of the Supreme Court and
judges of the lower courts. At present it is the President who appoints them. If there is a Commission on
Appointments, then it is the President with the confirmation of the Commission on Appointment. In this proposal, we
would like to establish a new office, a sort of a board composed of seven members called the Judicial and Bar
Council. And while the President will still appoint the member of the judiciary, he will be limited to the
recommendees of this Council.

xxx xxx xxx

MR. RODRIGO. Of the seven members of the Judicial and Bar Council, the President appoints four of them who are
regular members.

xxx xxx xxx

MR. CONCEPCION. The only purpose of the Committee is to eliminate partisan politics.43

xxx xxx xxx

MR. RODRIGO. If my amendment is approved, then the provision will be exactly the same as the provision in the
1935 Constitution, Article VIII, Section 5.

xxx xxx xxx

If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this will be a
diminution of the appointing power of the highest magistrate of the land, of the

President of the Philippines elected by all the Filipino people. The appointing power will be limited by a group of
seven people who are not elected by the people but only appointed.

Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional provisions on
appointments. The members of the Judiciary will be segregated from the rest of the government. Even a municipal
judge cannot be appointed by the President except upon recommendation or nomination of the three names by this
Committee of seven people, commissioners of the Commission on Elections, the COA and the Commission on Civil
Service…even ambassadors, generals of the Army will not come under this restriction. Why are we going to
segregate the Judiciary from the rest of our government in the appointment of high-ranking officials?
Another reason is that this Council will be ineffective. It will just besmirch the honor of our President without being
effective at all because this Council will be under the influence of the President. Four out of seven are appointees of
the President and they can be reappointed when their term ends. Therefore, they would be kowtow the President. A
fifth member is the Minister of Justice, an alter ego of the President. Another member represents the Legislature. In
all probability, the controlling part in the legislature belongs to the President and, therefore, this representative form
the National Assembly is also under the influence of the President. And may I say, Mr. Presiding Officer, that event
the Chief Justice of the Supreme Court is an appointee of the President. So it is futile he will be influence anyway by
the President.44 [Emphases supplied]

At this juncture, it is worthy to note that the seven-member composition of the JBC serves a practical purpose, that
is, to provide a solution should there be a stalemate in voting. This underlying reason leads the Court to conclude
that a single vote may not be divided into half (1/2), between two representatives of Congress, or among any of the
sitting members of the JBC for that matter. This unsanctioned practice can possibly cause disorder and eventually
muddle the JBC’s voting process, especially in the event a tie is reached. The aforesaid purpose would then be
rendered illusory, defeating the precise mechanism which the Constitution itself created. While it would be
unreasonable to expect that the Framers provide for every possible scenario, it is sensible to presume that they
knew that an odd composition is the best means to break a voting deadlock.

The respondents insist that owing to the bicameral nature of Congress, the word "Congress" in Section 8(1), Article
VIII of the Constitution should be read as including both the Senate and the House of Representatives. They
theorize that it was so worded because at the time the said provision was being drafted, the Framers initially
intended a unicameral form of Congress.

Then, when the Constitutional Commission eventually adopted a bicameral form of Congress, the Framers, through
oversight, failed to amend Article VIII, Section 8 of the Constitution.45 On this score, the Court cites the insightful
analysis of another member of the Court and JBC consultant, retired Justice Consuelo Ynares-Santiago.46 Thus:

A perusal of the records of the Constitutional Commission reveals that the composition of the JBC reflects the
Commission’s desire "to have in the Council a representation for the major elements of the community." xxx The ex-
officio members of the Council consist of representatives from the three main branches of government while the
regular members are composed of various stakeholders in the judiciary. The unmistakeable tenor of Article VIII,
Section 8(1) was to treat each ex-officio member as representing one co-equal branch of
government. xxxThus, the JBC was designed to have seven voting members with the three ex-officio members
having equal say in the choice of judicial nominees.

xxx xxx xxx

No parallelism can be drawn between the representative of Congress in the JBC and the exercise by
Congress of its legislative powers under Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of government, is constitutionally treated
as another co-equal branch of in the matter of its representative in the JBC. On the other hand, the exercise of
legislative and constituent powers requires the Senate and House of Representatives to coordinate and act as
distinct bodies in furtherance of Congress’ role under our constitutional scheme. While the latter justifies and, in
fact, necessitates the separateness of the two houses of Congress as they relate inter se, no such
dichotomy need be made when Congress interacts with the other two co-equal branches of government.

It is more in keeping with the co-equal nature of the three governmental branches to assign the same
weight to considerations that any of its representatives may have regarding aspiring nominees to the
judiciary. The representatives of the Senate and the House of Representatives act as such for one branch
and should not have any more quantitative influence as the other branches in the exercise of prerogatives
evenly bestowed upon the three. Sound reason and principle of equality among the three branches support this
conclusion. [Emphases and underscoring supplied]

More than the reasoning provided in the above discussed rules of constitutional construction, the Court finds the
above thesis as the paramount justification of the Court’s conclusion that "Congress," in the context of JBC
representation, should be considered as one body. It is evident that the definition of "Congress" as a bicameral body
refers to its primary function in government - to legislate.47 In the passage of laws, the Constitution is explicit in the
distinction of the role of each house in the process. The same holds true in Congress’ non-legislative powers such
as, inter alia, the power of appropriation,48 the declaration of an existence of a state of war,49 canvassing of electoral
returns for the President and Vice-President,50 and impeachment.51 In the exercise of these powers, the Constitution
employs precise language in laying down the roles which a particular house plays, regardless of whether the two
houses consummate an official act by voting jointly or separately. An inter-play between the two houses is
necessary in the realization of these powers causing a vivid dichotomy that the Court cannot simply discount. Verily,
each house is constitutionally granted with powers and functions peculiar to its nature and with keen consideration
to 1) its relationship with the other chamber; and 2) in consonance with the principle of checks and balances, to the
other branches of government.

This, however, cannot be said in the case of JBC representation because no liaison between the two houses exists
in the workings of the JBC. No mechanism is required between the Senate and the House of Representatives in the
screening and nomination of judicial officers. Hence, the term "Congress" must be taken to mean
the entirelegislative department. A fortiori, a pretext of oversight cannot prevail over the more pragmatic scheme
which the Constitution laid with firmness, that is, that the JBC has a seat for a single representative of Congress, as
one of the co-equal branches of government.
Doubtless, the Framers of our Constitution intended to create a JBC as an innovative solution in response to the
public clamor in favor of eliminating politics in the appointment of members of the Judiciary. 52 To ensure judicial
independence, they adopted a holistic approach and hoped that, in creating a JBC, the private sector and the three
branches of government would have an active role and equal voice in the selection of the members of the Judiciary.

Therefore, to allow the Legislature to have more quantitative influence in the JBC by having more than one voice
speak, whether with one full vote or one-half (1/2) a vote each, would, as one former congressman and member of
the JBC put it, "negate the principle of equality among the three branches of government which is enshrined in the
Constitution."53

To quote one former Secretary of Justice:

The present imbalance in voting power between the Legislative and the other sectors represented in the JBC must
be corrected especially when considered vis-à-vis the avowed purpose for its creation, i.e., to insulate the
appointments in the Judiciary against political influence. By allowing both houses of Congress to have a
representative in the JBC and by giving each representative one (1) vote in the Council, Congress, as compared to
the other members of the JBC, is accorded greater and unwarranted influence in the appointment of
judges.54[Emphasis supplied]

It is clear, therefore, that the Constitution mandates that the JBC be composed of seven (7) members only. Thus,
any inclusion of another member, whether with one whole vote or half (1/2) of it, goes against that mandate. Section
8(1), Article VIII of the Constitution, providing Congress with an equal voice with other members of the JBC in
recommending appointees to the Judiciary is explicit. Any circumvention of the constitutional mandate should not be
countenanced for the Constitution is the supreme law of the land. The Constitution is the basic and paramount law
to which all other laws must conform and to which all persons, including the highest officials of the land, must defer.
Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to
sway and accommodate the call of situations and much more tailor itself to the whims and caprices of the
government and the people who run it.55 Hence, any act of the government or of a public official or employee which
is contrary to the Constitution is illegal, null and void.

As to the effect of the Court’s finding that the current composition of the JBC is unconstitutional, it bears mentioning
that as a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no
protection; it creates no office; it is inoperative as if it has not been passed at all. 56 This rule, however, is not
absolute. In the interest of fair play under the doctrine of operative facts, actions previous to the declaration of
unconstitutionality are legally recognized. They are not nullified. In Planters Products, Inc. v. Fertiphil
Corporation,57the Court explained:

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair
play.1âwphi1 It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a
determination of unconstitutionality is an operative fact and may have consequences which cannot always be
ignored. The past cannot always be erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have
relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put
the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating
it.

Considering the circumstances, the Court finds the exception applicable in this case and holds that notwithstanding
its finding of unconstitutionality in the current composition of the JBC, all its prior official actions are nonetheless
valid.

At this point, the Court takes the initiative to clarify that it is not in a position to determine as to who should remain as
the sole representative of Congress in the JBC. This is a matter beyond the province of the Court and is best left to
the determination of Congress.

Finally, while the Court finds wisdom in respondents' contention that both the Senate and the House of
Representatives should be equally represented in the JBC, the Court is not in a position to stamp its imprimatur on
such a construction at the risk of expanding the meaning of the Constitution as currently worded. Needless to state,
the remedy lies in the amendment of this constitutional provision. The courts merely give effect to the lawgiver's
intent. The solemn power and duty of the Court to interpret and apply the law does not include the power to correct,
by reading into the law what is not written therein.

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council IS
declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to reconstitute itself so that only
one ( 1) member of Congress will sit as a representative in its proceedings, in accordance with Section 8( 1 ), Article

VIII of the 1987 Constitution.

This disposition is immediately executory.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 213181 August 19, 2014

FRANCIS H. JARDELEZA Petitioner,

vs.
CHIEF JUSTICE MARIA LOURDES P. A. SERENO, THE JUDICIAL AND BAR COUNCIL AND EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., Respondents.

DECISION

MENDOZA, J.:

Once again, the Couii is faced with a controversy involving the acts of an independent body, which is considered as
a constitutional innovation the Judicial and Bar Council (JBC). It is not the first time that the Court is called upon to
settle legal questions surrounding the JBC's exercise of its constitutional mandate. In De Castro v. JBC,1 the Court
laid to rest issues such as the duty of the JBC to recommend prospective nominees for the position of Chief Justice
vis-à-vis the appointing power of the President, the period within which the same may be exercised, and the ban on
midnight appointments as set forth in the Constitution. In Chavez v. JBC,2 the Court provided an extensive
discourse on constitutional intent as to the JBC’s composition and membership.

This time, however, the selection and nomination process actually undertaken by the JBC is being challenged for
being constitutionally infirm. The heart of the debate lies not only on the very soundness and validity of the
application of JBC rules but also the extent of its discretionary power. More significantly, this case of first impression
impugns the end-result of its acts - the shortlistfrom which the President appoints a deserving addition to the Highest
Tribunal of the land.

To add yet another feature of noveltyto this case, a member of the Court, no less than the Chief Justice herself, was
being impleaded as party respondent.

The Facts

The present case finds its genesis from the compulsory retirement of Associate Justice Roberto Abad (Associate
Justice Abad) last May 22, 2014. Before his retirement, on March 6, 2014, in accordance with its rules, 3 the JBC
announced the opening for application or recommendation for the said vacated position.

On March 14, 2014, the JBC received a letter from Dean Danilo Concepcion of the University of the Philippines
nominating petitioner Francis H. Jardeleza (Jardeleza), incumbent Solicitor General of the Republic, for the said
position. Upon acceptance of the nomination, Jardeleza was included in the names of candidates, as well as in the
schedule of public interviews. On May 29, 2014, Jardeleza was interviewed by the JBC.

It appears from the averments in the petition that on June 16 and 17, 2014, Jardeleza received telephone callsfrom
former Court of Appeals Associate Justice and incumbent JBC member, Aurora Santiago Lagman (Justice
Lagman), who informed him that during the meetings held on June 5 and 16, 2014, Chief Justice and JBC ex-
officioChairperson, Maria Lourdes P.A. Sereno (Chief Justice Sereno),manifested that she would be invoking
Section 2, Rule 10 of JBC-0094 against him. Jardeleza was then directed to "make himself available" before the JBC
on June 30, 2014, during which he would be informed of the objections to his integrity.

Consequently, Jardeleza filed a letter-petition (letter-petition)5 praying that the Court, in the exercise of
itsconstitutional power of supervision over the JBC, issue an order: 1) directing the JBC to give him at least five (5)
working days written notice of any hearing of the JBC to which he would be summoned; and the said notice to
contain the sworn specifications of the charges against him by his oppositors, the sworn statements of supporting
witnesses, if any, and copies of documents in support of the charges; and notice and sworn statements shall be
made part of the public record of the JBC; 2) allowing him to cross-examine his oppositors and supporting
witnesses, if any, and the cross-examination to be conducted in public, under the same conditions that attend the
publicinterviews held for all applicants; 3) directing the JBC to reset the hearing scheduled on June 30, 2014 to
another date; and 4) directing the JBC to disallow Chief Justice Sereno from participating in the voting on June
30,2014 or at any adjournment thereof where such vote would be taken for the nominees for the position vacated by
Associate Justice Abad.

During the June 30, 2014 meeting of the JBC, sansJardeleza, incumbent Associate Justice Antonio T. Carpio
(Associate Justice Carpio) appeared as a resource person to shed light on a classified legal memorandum (legal
memorandum) that would clarify the objection to Jardeleza’s integrity as posed by Chief Justice Sereno. According
to the JBC, Chief Justice Sereno questioned Jardeleza’s ability to discharge the duties of his office as shown in a
confidential legal memorandum over his handling of an international arbitration case for the government.

Later, Jardeleza was directed to one of the Court’s ante-rooms where Department of Justice Secretary Leila M. De
Lima (Secretary De Lima) informed him that Associate Justice Carpio appeared before the JBC and disclosed
confidential information which, to Chief Justice Sereno, characterized his integrity as dubious. After the briefing,
Jardeleza was summoned by the JBC at around 2:00o’clock in the afternoon.
Jardeleza alleged that he was asked by Chief Justice Sereno if he wanted to defend himself against the integrity
issues raised against him. He answered that he would defend himself provided that due process would be observed.
Jardeleza specifically demanded that Chief Justice Sereno execute a sworn statement specifying her objectionsand
that he be afforded the right to cross-examine her in a public hearing. He requested that the same directive should
also be imposed on Associate Justice Carpio. As claimed by the JBC, Representative Niel G. Tupas Jr. also
manifested that he wanted to hear for himself Jardeleza’s explanation on the matter. Jardeleza, however, refused as
he would not be lulled intowaiving his rights. Jardeleza then put into record a written statement 6 expressing his
views on the situation and requested the JBC to defer its meeting considering that the Court en banc would meet
the next day to act on his pending letter-petition. At this juncture, Jardeleza was excused.

Later in the afternoon of the sameday, and apparently denying Jardeleza’s request for deferment of the
proceedings, the JBC continued its deliberations and proceeded to vote for the nominees to be included in the
shortlist. Thereafter, the JBC releasedthe subject shortlist of four (4) nominees which included: Apolinario D.
Bruselas, Jr. with six (6) votes, Jose C. Reyes, Jr. with six (6) votes, Maria Gracia M. Pulido Tan with five (5) votes,
and Reynaldo B. Daway with four (4) votes.7

As mentioned in the petition, a newspaper article was later published in the online portal of the Philippine Daily
Inquirer, stating that the Court’s Spokesman, Atty. Theodore Te, revealed that there were actually five (5) nominees
who made it to the JBC shortlist, but one (1) nominee could not be included because of the invocation of Rule 10,
Section 2 of the JBC rules.

In its July 8, 2014 Resolution, the Court noted Jardeleza’s letterpetition in view of the transmittal of the JBC list of
nominees to the Office of the President, "without prejudice to any remedy available in law and the rules that
petitioner may still wish to pursue."8 The said resolution was accompanied by an extensive Dissenting Opinion
penned by Associate Justice Arturo D. Brion,9 expressing his respectful disagreement as to the position taken by the
majority.

The Petition

Perceptibly based on the aforementioned resolution’s declaration as to his availment of a remedy in law, Jardeleza
filed the present petition for certiorari and mandamus under Rule 65 of the Rules of Court with prayer for the
issuance of a Temporary Restraining Order (TRO), seeking to compel the JBC to include him in the list ofnominees
for Supreme Court Associate Justice viceAssociate Justice Abad, on the grounds that the JBC and Chief Justice
Sereno acted in grave abuse of discretion amounting to lack or excess of jurisdiction in excluding him, despite
having garnered a sufficient number of votes to qualify for the position.

Notably, Jardeleza’s petition decries that despite the obvious urgency of his earlier letter-petition and its concomitant
filing on June 25, 2014, the same was raffled only on July 1, 2014 or a day after the controversial JBC meeting. By
the time that his letter-petition was scheduled for deliberation by the Court en bancon July 8, 2014, the
disputedshortlist had already been transmitted to the Office of the President. He attributedthis belated action on his
letter-petition to Chief Justice Sereno, whose action on such matters, especially those impressed withurgency, was
discretionary.

An in-depth perusal of Jardeleza’s petition would reveal that his resort to judicial intervention hinges on the alleged
illegality of his exclusion from the shortlist due to: 1) the deprivation of his constitutional right to due process; and 2)
the JBC’s erroneous application, if not direct violation, of its own rules. Suffice it to say, Jardelezadirectly ascribes
the supposed violation of his constitutional rights tothe acts of Chief Justice Sereno in raising objections against his
integrity and the manner by which the JBC addressed this challenge to his application, resulting in his arbitrary
exclusion from the list of nominees.

Jardeleza’s Position

For a better understanding of the above postulates proffered in the petition, the Court hereunder
succinctlysummarizes Jardeleza’s arguments, as follows:

A. Chief Justice Sereno and the JBC violated Jardeleza’s right to due process in the events leading up to and during
the vote on the shortlist last June 30, 2014. When accusations against his integrity were made twice, ex parte, by
Chief Justice Sereno, without informing him of the nature and cause thereof and without affording him an
opportunity to be heard, Jardeleza was deprived of his right to due process. In turn, the JBC violated his right to due
process when he was simply ordered to make himself available on the June 30, 2014 meeting and was told that the
objections to his integrity would be made known to him on the same day. Apart from mere verbal notice (by way of a
telephone call) of the invocation of Section 2, Rule 10 of JBC-009 against his application and not on the accusations
against him per se, he was deprived of an opportunity to mount a proper defense against it. Not only did the JBC fail
to ventilate questions on his integrity during his public interview, he was also divested of his rights as an applicant
under Sections 3 and 4, Rule 4, JBC-009, to wit:

Section 3. Testimony of parties. – The Council may receive written opposition to an applicant on the ground of his
moral fitness and, at its discretion, the Council may receive the testimony of the oppositor at a hearing conducted for
the purpose, with due notice to the applicant who shall be allowed to cross-examine the oppositor and to offer
countervailing evidence.

Section 4. Anonymous Complaints. – Anonymous complaints against an applicant shall not be given due course,
unless there appears on its face a probable cause sufficient to engender belief that the allegations may be true. In
the latter case, the Council may direct a discreet investigation or require the applicant to comment thereon in writing
or during the interview.

His lack of knowledge as to the identity of his accusers (except for yet again, the verbalinformation conveyed to him
that Associate Justice Carpio testified against him) and as to the nature of the very accusations against him caused
him to suffer from the arbitrary action by the JBC and Chief Justice Sereno. The latter gravely abused her discretion
when she acted as prosecutor, witness and judge,thereby violating the very essence of fair play and the Constitution
itself. In his words: "the sui generis nature of JBC proceedings does not authorize the Chief Justice to assume these
roles, nor does it dispense with the need to honor petitioner’s right to due process."10

B. The JBC committed grave abuse of discretion in excluding Jardeleza from the shortlist of nominees, in violation of
its own rules. The "unanimity requirement" provided under Section 2, Rule10 of JBC-009 does not find application
when a member of the JBC raises an objection to an applicant’s integrity. Here, the lone objector constituted a part
of the membership of the body set to vote. The lone objector could be completely capable oftaking hostage the
entire voting process by the mere expediency of raising an objection. Chief Justice Sereno’s interpretation of the
rule would allow a situation where all thata member has to do to veto other votes, including majority votes, would be
to object to the qualification of a candidate, without need for factual basis.

C. Having secured the sufficient number of votes, it was ministerial on the part of the JBC to include Jardeleza in the
subject shortlist.Section 1, Rule 10 of JBC-009 provides that a nomination for appointment to a judicial position
requires the affirmative vote of at least a majority of all members of the JBC. The JBC cannot disregard its own
rules. Considering that Jardeleza was able to secure four (4) out of six (6) votes, the only conclusion is that a
majority of the members of the JBC found him to be qualified for the position of Associate Justice.

D. The unlawful exclusion ofthe petitioner from the subject shortlist impairs the President’s constitutional power to
appoint.Jardeleza’s exclusion from the shortlist has unlawfully narrowed the President’s choices. Simply put, the
President would be constrained to choose from among four (4) nominees, when five (5) applicants rightfully qualified
for the position. This limits the President to appoint a member of the Court from a list generated through a process
tainted with patent constitutional violations and disregard for rules of justice and fair play. Until these constitutional
infirmities are remedied, the petitioner has the right to prevent the appointment of an Associate Justice
viceAssociate Justice Abad.

Comment of the JBC

On August 11, 2014, the JBC filed its comment contending that Jardeleza’s petition lacked proceduraland
substantive bases that would warrant favorable action by the Court. For the JBC, certiorariis only available against a
tribunal, a board or an officer exercising judicial or quasijudicial functions.11 The JBC, in its exercise of its mandate
to recommend appointees to the Judiciary, does not exercise any of these functions. In a pending case, 12 Jardeleza
himself, as one of the lawyers for the government, argued in this wise: Certioraricannot issue against the JBC in the
implementation of its policies.

In the same vein, the remedy of mandamusis incorrect. Mandamus does not lie to compel a discretionary act. For it
to prosper, a petition for mandamus must, among other things, show that the petitioner has a clear legal right to the
act demanded. In Jardeleza’s case, there is no legal right to be included in the list of nominees for judicial
vacancies. Possession of the constitutional and statutory qualifications for appointment to the Judiciary may not be
used to legally demand that one’s name be included in the list of candidates for a judicial vacancy. One’s inclusion
in the shortlist is strictly within the discretion of the JBC.

Anent the substantive issues, the JBC mainly denied that Jardeleza was deprived of due process. The JBC
reiterated that Justice Lagman, on behalf of the JBC en banc, called Jardeleza and informed him that Chief Justice
Sereno would be invoking Section 2, Rule 10 of JBC-009 due to a question on his integrity based on the way he
handled a very important case for the government. Jardeleza and Justice Lagman spoke briefly about the case and
his general explanation on how he handled the same. Secretary De Lima likewise informed him about the content of
the impending objection against his application. On these occasions, Jardeleza agreed to explain himself. Come the
June 30, 2014 meeting, however, Jardeleza refused to shed light on the allegations against him,as he chose to
deliver a statement, which, in essence, requested that his accuser and her witnesses file sworn statements so that
he would know of the allegations against him, that he be allowed to cross-examine the witnesses;and that the
procedure be done on record and in public.

In other words, Jardeleza was given ample opportunity to be heard and to enlighten each member of the JBC on the
issues raised against him prior to the voting process. His request for a sworn statement and opportunity to cross-
examine is not supported by a demandable right. The JBC is not a fact-finding body. Neitheris it a court nor a quasi-
judicial agency. The members are notconcerned with the determination of his guilt or innocence of the accusations
against him. Besides, Sections 3 and 4, Rule 10,JBC-009 are merely directory as shown by the use of the word
"may." Even the conduct of a hearing to determine the veracity of an opposition is discretionary on the JBC.
Ordinarily, if there are other ways of ascertaining the truth or falsity of an allegation or opposition, the JBC would not
call a hearing in order to avoid undue delay of the selection process. Each member of the JBC relies on his or her
own appreciation of the circumstances and qualifications of applicants.

The JBC then proceeded to defend adherence to its standing rules. As a general rule, an applicant is included in the
shortlist when he or she obtains an affirmative vote of at least a majority of all the members of the JBC. When
Section 2, Rule 10 of JBC-009,however, is invoked because an applicant’s integrity is challenged, a unanimous vote
is required. Thus, when Chief Justice Sereno invoked the saidprovision, Jardeleza needed the affirmative vote of all
the JBC members tobe included in the shortlist. In the process, Chief Justice Sereno’s vote against Jardeleza was
not counted. Even then, he needed the votes of the five(5) remaining members. He only got four (4) affirmative
votes. As a result,he was not included in the shortlist. Applicant Reynaldo B. Daway, who gotfour (4) affirmative
votes, was included in the shortlist because his integrity was not challenged. As to him, the "majority rule" was
considered applicable.

Lastly, the JBC rued that Jardeleza sued the respondents in his capacity as Solicitor General. Despiteclaiming a
prefatory appearance in propria persona, all pleadings filed with the Court were signed in his official capacity. In
effect, he sued the respondents to pursue a purely private interest while retaining the office of the Solicitor General.
By suing the very parties he was tasked by law to defend, Jardeleza knowingly placed himself in a situation where
his personal interests collided against his public duties, in clear violation of the Code of Professional Responsibility
and Code of Professional Ethics. Moreover, the respondents are all public officials being sued in their official
capacity. By retaining his title as Solicitor General, and suing in the said capacity, Jardeleza filed a suit against his
own clients, being the legal defender of the government and its officers. This runs contrary to the fiduciary
relationship sharedby a lawyer and his client.

In opposition to Jardeleza’s prayer for the issuance of a TRO, the JBC called to mind the constitutional period within
which a vacancy in the Court must be filled. As things now stand, the President has until August 20, 2014 to
exercise his appointment power which cannot be restrained by a TRO or an injunctive suit.

Comment of the Executive Secretary

In his Comment, Executive Secretary Paquito N. Ochoa Jr. (Executive Secretary)raised the possible
unconstitutionality of Section 2, Rule 10 of JBC-009, particularly the imposition ofa higher voting threshold in cases
where the integrity of an applicant is challenged. It is his position that the subject JBC rule impairs the body’s
collegial character, which essentially operates on the basis of majority rule. The application of Section 2, Rule 10 of
JBC-009 gives rise to a situation where all that a member needs to do, in order to disqualify an applicant who may
well have already obtained a majority vote, is to object to his integrity. In effect, a member who invokes the said
provision is given a veto powerthat undermines the equal and full participation of the other members in the
nomination process. A lone objector may then override the will ofthe majority, rendering illusory, the collegial nature
of the JBC and the very purpose for which it was created— to shield the appointment process from political
maneuvering. Further, Section 2, Rule 10 of JBC-009 may beviolative of due process for it does not allow an
applicant any meaningful opportunity to refute the challenges to his integrity. While other provisions of the JBC rules
provide mechanisms enabling an applicant to comment on an opposition filed against him, the subject rule does not
afford the same opportunity. In this case, Jardeleza’s allegations as to the events which transpired on June 30, 2014
obviously show that he was neither informed ofthe accusations against him nor given the chance to muster a
defense thereto.

The Executive Secretary then offered a supposition: granting that the subject provision is held to be constitutional,
the "unanimity rule" would only be operative when the objector is not a member of the JBC. It is only in this scenario
where the voting ofthe body would not be rendered inconsequential. In the event that a JBC member raised the
objection, what should have been applied is the general rule of a majority vote, where any JBC member retains their
respective reservations to an application with a negative vote. Corollary thereto, the unconstitutionality of the said
rule would necessitate the inclusion of Jardeleza in the shortlist submitted to the President.

Other pleadings

On August 12, 2014, Jardeleza was given the chance to refute the allegations of the JBC in its Comment. He
submitted his Reply thereto on August 15, 2014. A few hours thereafter, orbarely ten minutes prior to the closing of
business, the Court received the Supplemental Comment-Reply of the JBC, this time with the attached minutes of
the proceedings that led to the filing of the petition,and a detailed "Statementof the Chief Justice on the Integrity
Objection."13 Obviously, Jardeleza’s Reply consisted only of his arguments against the JBC’s original Comment, as
it was filed prior to the filing of the Supplemental Comment-Reply.

At the late stage of the case, two motions to admit comments-inintervention/oppositions-in-intervention were filed.
One was by Atty. Purificacion S. Bartolome-Bernabe, purportedly the President of the Integrated Bar of the
Philippines-Bulacan Chapter. This pleading echoed the position of the JBC.14

The other one was filed by Atty. Reynaldo A. Cortes, purportedly a former President of the IBP Baguio-Benguet
Chapter and former Governor of the IBP-Northern Luzon. It was coupled with a complaint for disbarment against
Jardeleza primarily for violations of the Code of Professional Responsibility for representing conflicting interests.15

Both motions for intervention weredenied considering that time was of the essence and their motions were merely
reiterative of the positions of the JBC and were perceived to be dilatory. The complaint for disbarment, however,
was re-docketed as a separate administrative case.

The Issues

Amidst a myriad of issues submitted by the parties, most of which are interrelated such that the resolution of one
issue would necessarily affect the conclusion as to the others, the Court opts to narrow down the questions to the
very source of the discord - the correct application of Section 2, Rule 10 JBC-009 and its effects, if any, on the
substantive rights of applicants.
The Court is not unmindful of the fact that a facial scrutiny of the petition does not directly raise the
unconstitutionality of the subject JBC rule. Instead, it bewails the unconstitutional effects of its application. It is only
from the comment of the Executive Secretary where the possible unconstitutionality of the rulewas brought to the
fore. Despite this milieu, a practical approach dictatesthat the Court must confront the source of the bleeding from
which the gaping wound presented to the Court suffers.

The issues for resolution are:

I.

WHETHER OR NOT THE COURT CAN ASSUME JURISDICTION AND GIVE DUECOURSE TO THE SUBJECT
PETITION FOR CERTIORARI AND MANDAMUS (WITH APPLICATION FOR A TEMPORARY RESTRAINING
ORDER).

II

WHETHER OR NOT THE ISSUES RAISED AGAINST JARDELEZA BEFIT "QUESTIONS OR CHALLENGES ON
INTEGRITY" AS CONTEMPLATED UNDER SECTION 2, RULE 10 OF JBC-009.

II.

WHETHER OR NOT THE RIGHT TO DUE PROCESS IS AVAILABLE IN THE COURSE OF JBC PROCEEDINGS
IN CASES WHERE AN OBJECTION OR OPPOSITION TO AN APPLICATION IS RAISED.

III.

WHETHER OR NOT PETITIONER JARDELEZA MAY BE INCLUDED IN THE SHORTLIST OF NOMINEES

SUBMITTED TO THE PRESIDENT.

The Court’s Ruling

I – Procedural Issue: The Court has constitutional bases to assume jurisdiction over the case

A - The Court’s Power of Supervision over the JBC

Section 8, Article VIII of the 1987 Constitution provides for the creation of the JBC. The Court was given supervisory
authority over it. Section 8 reads:

Section 8.

A Judicial and Bar Council is hereby created under the supervision of the Supreme Courtcomposed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio
Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector. [Emphasis supplied]

As a meaningful guidepost, jurisprudence provides the definition and scope of supervision. It is the power of
oversight, or the authority to see that subordinate officers perform their duties.It ensures that the laws and the rules
governing the conduct of a government entity are observed and complied with. Supervising officials see to it that
rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or
replace them. If the rules are not observed, they may order the work done or redone, but only to conform to such
rules. They may not prescribe their own manner of execution of the act. They have no discretion on this matter
except to see to it that the rules are followed.16

Based on this, the supervisory authority of the Court over the JBC covers the overseeing of compliance with its
rules. In this case, Jardeleza’s principal allegations in his petition merit the exercise of this supervisory authority.

B- Availability of the Remedy of Mandamus

The Court agrees with the JBC that a writ of mandamus is not available. "Mandamuslies to compel the performance,
when refused, of a ministerial duty, but not to compel the performance of a discretionary duty. Mandamuswill not
issue to control or review the exercise of discretion of a public officer where the law imposes upon said public officer
the right and duty to exercise his judgment in reference to any matter in which he is required to act. It is his
judgment that is to be exercised and not that of the court.17 There is no question that the JBC’s duty to nominate is
discretionary and it may not becompelled to do something.

C- Availability of the Remedy of Certiorari

Respondent JBC opposed the petition for certiorarion the ground that it does not exercise judicial or quasi-judicial
functions. Under Section 1 of Rule 65, a writ of certiorariis directed against a tribunal exercising judicial or quasi-
judicial function. "Judicial functions are exercised by a body or officer clothed with authority to determine what the
law is and what the legal rights of the parties are with respect to the matter in controversy. Quasijudicial function is a
term that applies to the action or discretion of public administrative officers or bodies given the authority to
investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for
their official action using discretion of a judicial nature."18 It asserts that in the performance of its function of
recommending appointees for the judiciary, the JBC does not exercise judicial or quasijudicial functions. Hence, the
resort tosuch remedy to question its actions is improper.

In this case, Jardeleza cries that although he earned a qualifying number of votes in the JBC, it was negated by the
invocation of the "unanimity rule" on integrity in violation of his right to due process guaranteed not only by the
Constitution but by the Council’s own rules. For said reason, the Court is of the position that it can exercise the
expanded judicial power of review vestedupon it by the 1987 Constitution. Thus:

Article VIII.

Section 1. The judicial power is 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.

It has been judicially settled that a petition for certiorari is a proper remedy to question the act of any branch or
instrumentality of the government on the ground of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch orinstrumentality of the government, even if the latter does not exercise judicial, quasi-
judicial or ministerial functions.19

In a case like this, where constitutional bearings are too blatant to ignore, the Court does not find passivity as an
alternative. The impassemust be overcome.

II – Substantial Issues

Examining the Unanimity Rule of the JBC in cases where an applicant’s integrity is challenged

The purpose of the JBC’s existence is indubitably rooted in the categorical constitutional declaration that"[a]
member of the judiciary must be a person of proven competence, integrity, probity, and independence." To ensure
the fulfillment of these standards in every member of the Judiciary, the JBC has been tasked toscreen aspiring
judges and justices, among others, making certain that the nominees submitted to the President are all qualified and
suitably best for appointment. In this way, the appointing process itself is shieldedfrom the possibility of extending
judicial appointment to the undeserving and mediocre and, more importantly, to the ineligible or disqualified.

In the performance of this sacred duty, the JBC itself admits, as stated in the "whereas clauses" of JBC-009, that
qualifications such as "competence, integrity, probity and independence are not easily determinable as they are
developed and nurtured through the years." Additionally, "it is not possible or advisable to lay down iron-clad rules to
determine the fitness of those who aspire to become a Justice, Judge, Ombudsman or Deputy Ombudsman." Given
this realistic situation, there is a need "to promote stability and uniformity in JBC’s guiding precepts and principles."
A set of uniform criteria had to be established in the ascertainment of "whether one meets the minimum
constitutional qualifications and possesses qualities of mind and heart expected of him" and his office. Likewise for
the sake oftransparency of its proceedings, the JBC had put these criteria in writing, now in the form of JBC-009.
True enough, guidelines have been set inthe determination of competence,"20 "probity and
independence,"21"soundness of physical and mental condition,22 and "integrity."23

As disclosed by the guidelines and lists of recognized evidence of qualification laid down in JBC-009, "integrity" is
closely related to, or if not, approximately equated to an applicant’s good reputation for honesty, incorruptibility,
irreproachableconduct, and fidelity to sound moral and ethical standards. That is why proof of an applicant’s
reputation may be shown in certifications or testimonials from reputable government officials and non-governmental
organizations and clearances from the courts, National Bureau of Investigation, and the police, among others. In
fact, the JBC may even conduct a discreet background check and receive feedback from the public on the integrity,
reputation and character of the applicant, the merits of which shall be verifiedand checked. As a qualification, the
term is taken to refer to a virtue, such that, "integrity is the quality of person’s character."24

The foregoing premise then begets the question: Does Rule 2, Section 10 of JBC-009, in imposing the "unanimity
rule," contemplate a doubt on the moral character of an applicant? Section 2, Rule 10 of JBC-009 provides:

SEC. 2. Votes required when integrity of a qualified applicant is challenged. - In every case where the integrity of an
applicant who is not otherwise disqualified for nomination is raised or challenged, the affirmative vote of all the
Members of the Council must be obtained for the favorable consideration of his nomination.

A simple reading of the above provision undoubtedly elicits the rule that a higher voting requirement is absolute in
cases where the integrity of an applicant is questioned. Simply put, when an integrity question arises, the voting
requirement for his or her inclusion as a nominee to a judicial post becomes "unanimous" instead of the "majority
vote" required in the preceding section.25 Considering that JBC-009 employs the term "integrity" as an essential
qualification for appointment, and its doubtful existence in a person merits a higher hurdle to surpass, that is, the
unanimous vote of all the members of the JBC, the Court is of the safe conclusion that "integrity" as used in the
rules must be interpreted uniformly. Hence, Section 2, Rule 10 of JBC-009 envisions only a situation where an
applicant’s moral fitness is challenged. It follows then that the "unanimity rule" only comes into operation when the
moral character of a person is put in issue. It finds no application where the question is essentially unrelated to an
applicant’s moral uprightness.
Examining the "questions of integrity" made against Jardeleza

The Court will now examine the propriety of applying Section 2, Rule 10 of JBC-009 to Jardeleza’s case.

The minutes of the JBC meetings, attached to the Supplemental Comment-Reply, reveal that during the June 30,
2014 meeting, not only the question on his actuations in the handling of a case was called for explanation by the
Chief Justice, but two other grounds as well tending to show his lack of integrity: a supposed extra-marital affair in
the past and alleged acts of insider trading.26

Against this factual backdrop, the Court notes that the initial or original invocation of Section 2, Rule 10 of JBC-009
was grounded on Jardeleza’s "inability to discharge the duties of his office" as shown in a legal memorandum
related to Jardeleza’s manner of representing the government in a legal dispute. The records bear that the
"unanimity rule" was initially invoked by Chief Justice Sereno during the JBC meeting held on June 5, 2014, where
she expressed her position that Jardeleza did not possess the integrity required tobe a member of the Court. 27 In
the same meeting, the Chief Justice shared withthe other JBC members the details of Jardeleza’s chosen manner of
framing the government’s position in a case and how this could have been detrimental to the national interest.

In the JBC’s original comment, the details of the Chief Justice’s claim against Jardeleza’s integrity were couched in
general terms. The particulars thereof were only supplied to the Court in the JBC’s Supplemental Comment-Reply.
Apparently, the JBC acceded to Jardeleza’s demand to make the accusations against him public. At the outset, the
JBC declined to raise the fine points of the integrity question in its original Comment due to its significant bearing on
the country’s foreign relations and national security. At any rate, the Court restrains itself from delving into the
details thereof in this disposition. The confidential nature of the document cited therein, which requires the
observance of utmost prudence, preclude a discussion that may possibly affect the country’s position in a pending
dispute.

Be that as it may, the Court has to resolve the standing questions: Does the original invocation of Section 2, Rule 10
of JBC-009 involve a question on Jardeleza’s integrity? Doeshis adoption of a specific legal strategy in the handling
of a case bring forth a relevant and logical challenge against his moral character? Does the "unanimity rule" apply in
cases where the main point of contention is the professional judgment sans charges or implications of immoral or
corrupt behavior?

The Court answers these questions in the negative.

While Chief Justice Sereno claims that the invocation of Section 2, Rule 10 of JBC-009 was not borne out ofa mere
variance of legal opinion but by an "act of disloyalty" committed by Jardeleza in the handling of a case, the fact
remains that the basis for her invocation of the rule was the "disagreement" in legal strategy as expressed by a
group of international lawyers. The approach taken by Jardeleza in that case was opposed to that preferred by the
legal team. For said reason, criticism was hurled against his "integrity." The invocation of the "unanimity rule" on
integrity traces its roots to the exercise ofhis discretion as a lawyer and nothing else. No connection was established
linking his choice of a legal strategy to a treacherous intent to trounce upon the country’s interests or to betray the
Constitution.

Verily, disagreement in legal opinion is but a normal, if not an essential form of, interaction among members of the
legal community. A lawyer has complete discretion on whatlegal strategy to employ in a case entrusted to
him28provided that he lives up tohis duty to serve his client with competence and diligence, and that he exert his
best efforts to protect the interests of his client within the bounds of the law. Consonantly, a lawyer is not an insurer
of victory for clients he represents. An infallible grasp of legal principles and technique by a lawyer is a utopian ideal.
Stripped of a clear showing of gross neglect, iniquity, or immoral purpose, a strategy of a legal mind remains a legal
tactic acceptable to some and deplorable to others. It has no direct bearing on his moral choices.

As shown in the minutes, the other JBC members expressed their reservations on whether the ground invoked by
Chief Justice Sereno could be classified as a "question of integrity" under Section 2, Rule 10 of JBC-009.29 These
reservations were evidently sourced from the factthat there was no clear indication that the tactic was a "brainchild"
of Jardeleza, as it might have been a collective idea by the legal team which initially sought a different manner of
presenting the country’s arguments, and there was no showing either of a corrupt purpose on his part. 30 Even Chief
Justice Sereno was not certain that Jardeleza’s acts were urged by politicking or lured by extraneous
promises.31Besides, the President, who has the final say on the conduct of the country’s advocacy in the case, has
given no signs that Jardeleza’s action constituted disloyalty or a betrayal of the country’s trust and interest. While
this point does notentail that only the President may challenge Jardeleza’s doubtful integrity, itis commonsensical to
assume that he is in the best position to suspect a treacherous agenda. The records are bereft of any information
that indicatesthis suspicion. In fact, the Comment of the Executive Secretary expressly prayed for Jardeleza’s
inclusion in the disputed shortlist.

The Court notes the zeal shown by the Chief Justice regarding international cases, given her participation in the
PIATCO case and the Belgian Dredging case. Her efforts inthe determination of Jardeleza’s professional
background, while commendable, have not produced a patent demonstration of a connection betweenthe act
complained of and his integrity as a person. Nonetheless, the Court cannot consider her invocation of Section 2,
Rule 10 of JBC-009 as conformably within the contemplation of the rule. To fall under Section 2, Rule 10 of JBC-
009, there must be a showing that the act complained of is, at the least, linked to the moral character of the person
and not to his judgment as a professional. What this disposition perceives, therefore, is the inapplicability of Section
2, Rule 10 of JBC-009 to the original ground of its invocation.
As previously mentioned, Chief Justice Sereno raised the issues of Jardeleza’s alleged extra-marital affair and acts
of insider-trading for the first time onlyduring the June 30, 2014 meeting of the JBC. As can be gleaned from the
minutes of the June 30, 2014 meeting, the inclusion of these issues had its origin from newspaper reports that the
Chief Justice might raise issues of "immorality" against Jardeleza.32 The Chief Justice then deduced that the
"immorality" issue referred to by the media might have been the incidents that could have transpired when Jardeleza
was still the General Counsel of San Miguel Corporation. She stated that inasmuch as the JBC had the duty to "take
every possible step to verify the qualification of the applicants," it might as well be clarified.33

Do these issues fall within the purview of "questions on integrity" under Section 2, Rule 10 of JBC-009? The Court
nods in assent. These are valid issues.

This acquiescence is consistent with the Court’s discussion supra. Unlike the first ground which centered
onJardeleza’s stance on the tactical approach in pursuing the case for the government, the claims of an illicit
relationship and acts of insider trading bear a candid relation to his moral character. Jurisprudence34 is replete with
cases where a lawyer’s deliberate participation in extra-marital affairs was considered as a disgraceful stain on
one’s ethical and moral principles. The bottom line is that a lawyer who engages in extra-marital affairs is deemed to
have failed to adhere to the exacting standards of morality and decency which every member of the Judiciary is
expected to observe. In fact, even relationships which have never gone physical or intimate could still be subject to
charges of immorality, when a lawyer, who is married, admits to having a relationship which was more than
professional, more than acquaintanceship, more than friendly.35 As the Court has held: Immorality has not been
confined to sexual matters, but includes conduct inconsistentwith rectitude, or indicative of corruption, indecency,
depravity and dissoluteness; or is willful, flagrant, or shameless conduct showing moral indifference to opinions of
respectable members of the communityand an inconsiderate attitude toward good order and public welfare.36 Moral
character is not a subjective term but one that corresponds to objective reality.37 To have a good moral character, a
person must have the personal characteristic ofbeing good. It is not enough that he or she has a good reputation,
that is, the opinion generally entertained about a person or the estimate in which he or she is held by the public in
the place where she is known.38 Hence, lawyers are at all times subject to the watchful public eye and community
approbation.39

The element of "willingness" to linger in indelicate relationships imputes a weakness in one’s values, self-control and
on the whole, sense of honor, not only because it is a bold disregard of the sanctity of marriage and of the law, but
because it erodes the public’s confidence in the Judiciary. This is no longer a matter of an honest lapse in judgment
but a dissolute exhibition of disrespect toward sacredvows taken before God and the law.

On the other hand, insider trading is an offense that assaults the integrity of our vital securities
market.40Manipulative devices and deceptive practices, including insider trading, throw a monkey wrench right into
the heart of the securities industry. Whensomeone trades inthe market with unfair advantage in the form of highly
valuable secret inside information, all other participants are defrauded. All of the mechanisms become worthless.
Given enough of stock marketscandals coupled with the related loss of faith in the market, such abuses could
presage a severe drain of capital. And investors would eventuallyfeel more secure with their money invested
elsewhere.41 In its barest essence, insider trading involves the trading of securities based on knowledge of material
information not disclosed to the public at the time. Clearly, an allegation of insider trading involves the propensity of
a person toengage in fraudulent activities that may speak of his moral character.

These two issues can be properly categorized as "questions on integrity" under Section 2, Rule 10 of JBC-009.
They fall within the ambit of "questions on integrity." Hence, the "unanimity rule" may come into operation as the
subject provision is worded.

The Availability of Due Process in the

Proceedings of the JBC

In advocacy of his position, Jardeleza argues that: 1] he should have been informed of the accusations against him
in writing; 2] he was not furnished the basis of the accusations, that is, "a very confidential legal memorandum that
clarifies the integrityobjection"; 3] instead of heeding his request for an opportunity to defend himself, the JBC
considered his refusal to explain, during the June 30, 2014 meeting, as a waiver of his right to answer the
unspecified allegations; 4] the voting of the JBC was railroaded; and 5] the alleged "discretionary" nature of Sections
3 and 4 of JBC-009 is negated by the subsequent effectivity of JBC-010, Section 1(2) of which provides for a 10-day
period from the publication of the list of candidates within which any complaint or opposition against a candidate
may be filed with the JBC Secretary; 6] Section 2 of JBC-010 requires complaints and oppositions to be in writing
and under oath, copies of which shall be furnished the candidate in order for him to file his comment within five (5)
days from receipt thereof; and 7] Sections 3 to 6 of JBC-010 prescribe a logical, reasonable and sequential series of
steps in securing a candidate’s right to due process.

The JBC counters these by insisting that it is not obliged to afford Jardeleza the right to a hearing in the fulfillment of
its duty to recommend. The JBC, as a body, is not required by law to hold hearings on the qualifications of the
nominees. The process by which an objection is made based on Section 2, Rule 10 of JBC-009 is not judicial, quasi-
judicial, or fact-finding, for it does not aim to determine guilt or innocence akin to a criminal or administrative offense
but toascertain the fitness of an applicant vis-à-vis the requirements for the position. Being sui generis, the
proceedings of the JBC do not confer the rights insisted upon by Jardeleza. He may not exact the application of
rules of procedure which are, at the most, discretionary or optional. Finally, Jardeleza refused to shed light on the
objections against him. During the June 30, 2014 meeting, he did not address the issues, but instead chose totread
on his view that the Chief Justice had unjustifiably become his accuser, prosecutor and judge.
The crux of the issue is on the availability of the right to due process in JBC proceedings. After a tedious review of
the parties’ respective arguments, the Court concludes that the right to due process is available and thereby
demandable asa matter of right.

The Court does not brush aside the unique and special nature of JBC proceedings. Indeed, they are distinct from
criminal proceedings where the finding of guilt or innocence of the accused is sine qua non. The JBC’s constitutional
duty to recommend qualified nominees to the President cannot be compared to the duty of the courts of law to
determine the commission of an offense and ascribe the same to an accused, consistent with established rules on
evidence. Even the quantum ofevidence required in criminal cases is far from the discretion accorded to the JBC.

The Court, however, could not accept, lock, stock and barrel, the argument that an applicant’s access tothe rights
afforded under the due process clause is discretionary on the part of the JBC. While the facets of criminal 42 and
administrative43 due process are not strictly applicable to JBC proceedings, their peculiarity is insufficient to justify
the conclusion that due process is not demandable.

In JBC proceedings, an aspiring judge or justice justifies his qualifications for the office when he presents proof of
his scholastic records, work experience and laudable citations. His goal is to establish that he is qualified for the
office applied for. The JBC then takes every possible step to verify an applicant's trackrecord for the purpose
ofdetermining whether or not he is qualified for nomination. It ascertains the factors which entitle an applicant to
become a part of the roster from which the President appoints.

The fact that a proceeding is sui generisand is impressed with discretion, however, does not automatically denigrate
an applicant’s entitlement to due process. It is well-established in jurisprudence that disciplinary proceedings against
lawyers are sui generisin that they are neither purely civil nor purely criminal; they involve investigations by the
Court into the conduct of one of its officers, not the trial of an action or a suit.44 Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to accountfor his actuations as an officer of
the Court with the end in view of preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who, by their misconduct, have proved themselves
no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such
posture, there can be no occasion to speak of a complainant or a prosecutor.45 On the whole, disciplinary
proceedings are actually aimed to verifyand finally determine, if a lawyer charged is still qualifiedto benefit from the
rights and privileges that membership in the legal profession evoke.

Notwithstanding being "a class of itsown," the right to be heard and to explain one’s self is availing. The Court
subscribes to the view that in cases where an objection to an applicant’s qualifications is raised, the observance of
due process neither negates nor renders illusory the fulfillment of the duty of JBC torecommend. This holding is not
an encroachment on its discretion in the nomination process. Actually, its adherence to the precepts of due process
supports and enriches the exercise of its discretion. When an applicant, who vehemently denies the truth of the
objections, is afforded the chance to protest, the JBC is presented with a clearer understanding of the situation it
faces, thereby guarding the body from making an unsound and capriciousassessment of information brought before
it. The JBC is not expected to strictly apply the rules of evidence in its assessment of an objection against an
applicant. Just the same, to hear the side of the person challenged complies with the dictates of fairness for the only
test that an exercise of discretion must surmount is that of soundness.

A more pragmatic take on the matter of due process in JBC proceedings also compels the Court to examine its
current rules. The pleadings of the parties mentioned two: 1] JBC-009 and 2] JBC-010. The former provides the
following provisions pertinent to this case:

SECTION 1. Evidence of integrity. - The Council shall take every possible step to verify the applicant's record of and
reputation for honesty, integrity, incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical
standards. For this purpose, the applicant shall submit to the Council certifications or testimonials thereof from
reputable government officials and non-governmental organizations, and clearances from the courts, National
Bureau of Investigation, police, and from such other agencies as the Council may require.

SECTION 2. Background check. - The Council mayorder a discreet background check on the integrity, reputation
and character of the applicant, and receive feedback thereon from the public, which it shall check or verify to
validate the merits thereof.

SECTION 3. Testimony of parties.- The Council may receive written opposition to an applicant on groundof his
moral fitness and, at its discretion, the Council mayreceive the testimony of the oppositor at a hearing conducted for
the purpose, with due notice to the applicant who shall be allowed to cross-examine the oppositor and to offer
countervailing evidence.

SECTION 4. Anonymous complaints. - Anonymous complaints against an applicant shall not begiven due course,
unless there appears on its face a probable cause sufficient to engender belief that the allegations may be true. In
the latter case, the Council may either direct a discreet investigation or require the applicant to comment thereon in
writing or during the interview. [Emphases Supplied]

While the "unanimity rule" invoked against him is found in JBC-009, Jardeleza urges the Court to hold that the
subsequent rule, JBC-010,46 squarely applies to his case. Entitled asa "Rule to Further Promote Public Awareness
of and Accessibility to the Proceedings of the Judicial and Bar Council," JBC-010 recognizes the needfor
transparency and public awareness of JBC proceedings. In pursuance thereof, JBC-010 was crafted in this wise:
SECTION 1. The Judicial and Bar Council shall deliberate to determine who of the candidates meet prima facie the
qualifications for the positionunder consideration. For this purpose, it shall prepare a long list of candidates who
prima facieappear to have all the qualifications.

The Secretary of the Council shall then cause to be published in two (2) newspapers of general circulation a notice
of the long list of candidates in alphabetical order.

The notice shall inform the public that any complaint or opposition against a candidate may be filed with the
Secretary within ten (10) days thereof.

SECTION 2.The complaint or opposition shall be in writing, under oath and in ten (10) legible copies, together with
its supporting annexes. It shall strictly relate to the qualifications of the candidate or lack thereof, as provided for in
the Constitution, statutes, and the Rules of the Judicial and Bar Council, as well as resolutions or regulations
promulgated by it.

The Secretary of the Council shallfurnish the candidate a copy of the complaint or opposition against him. The
candidate shall have five (5) days from receipt thereof within which to file his comment to the complaint or
opposition, if he so desires.

SECTION 3.The Judicial and Bar Council shall fix a date when it shall meet in executive session to consider the
qualification of the long list of candidates and the complaint or opposition against them, if any. The Council may, on
its own, conduct a discreet investigation of the background of the candidates.

On the basis of its evaluationof the qualification of the candidates, the Council shall prepare the shorter list of
candidates whom it desires to interview for its further consideration.

SECTION 4.The Secretary of the Council shall again cause to be published the dates of the interview of candidates
in the shorter list in two (2) newspapers of general circulation. It shall likewise be posted in the websites of the
Supreme Court and the Judicial and Bar Council.

The candidates, as well as their oppositors, shall be separately notified of the dateand place of the interview.

SECTION 5.The interviews shall be conducted in public. During the interview, only the members ofthe Council can
ask questions to the candidate. Among other things, the candidate can be made to explain the complaint or
opposition against him.

SECTION 6. After the interviews, the Judicial and Bar Council shall again meet in executive session for the final
deliberation on the short list of candidates which shall be sent to the Office of the President as a basis for the
exercise of the Presidential power of appointment. [Emphases supplied]

Anent the interpretation of these existing rules, the JBC contends that Sections 3 and 4, Rule 10 of JBC-009 are
merely directory in nature as can be gleaned from the use of the word "may." Thus, the conduct of a hearing under
Rule 4 of JBC-009 is permissive and/or discretionary on the part of the JBC. Even the conduct of a hearing to
determine the veracity of an opposition is discretionary for there are ways, besides a hearing, to ascertain the truth
or falsity of allegations. Succinctly, this argument suggests that the JBC has the discretion to hold or not to hold a
hearing when an objection to an applicant’s integrity is raised and that it may resort to other means to accomplish its
objective. Nevertheless, JBC adds, "what is mandatory, however, is that if the JBC, in its discretion, receives a
testimony of an oppositor in a hearing, due notice shall be given to the applicant and that shall be allowed to cross-
examine the oppositor."47 Again, the Court neither intends to strip the JBC of its discretion to recommend nominees
nor proposes thatthe JBC conduct a full-blown trial when objections to an application are submitted. Still, it is
unsound to say that, all together, the observance of due process is a part of JBC’s discretion when an opposition to
an application is made of record. While it may so rely on "other means" such as character clearances, testimonials,
and discreet investigation to aid it in forming a judgment of an applicant’s qualifications, the Court cannot accept a
situation where JBC is given a full rein on the application of a fundamental right whenever a person’s integrity is put
to question. In such cases, an attack on the person of the applicant necessitates his right to explain himself.

The JBC’s own rules convince the Court to arrive at this conclusion. The subsequent issuance of JBC-010
unmistakably projects the JBC’s deference to the grave import of the right of the applicant to be informed and
corollary thereto, the right to be heard. The provisions of JBC-010, per se, provide that: any complaint or opposition
against a candidate may be filed with the Secretary within ten (10) days thereof; the complaint or opposition shall be
in writing, under oath and in ten (10) legible copies; the Secretary of the Council shall furnish the candidate a copy
of the complaint or opposition against him; the candidate shall have five (5) days from receipt thereof within which to
file his comment to the complaint or opposition, if he so desires; and the candidate can be made to explain the
complaint or opposition against him.

The Court may not close its eyes to the existence of JBC-010 which, under the rules of statutory construction,bears
great weight in that: 1] it covers "any" complaint or opposition; 2] it employs the mandatory term, "shall"; and 3] most
importantly, it speaks of the very essence of due process. While JBC-010 does not articulate a procedure that
entails a trialtype hearing, it affords an applicant, who faces "any complaint or opposition," the right to answer the
accusations against him. This constitutes the minimum requirements of due process.

Application to Jardeleza’s Case

Nearing the ultimate conclusion of this case, the Court is behooved to rule on whether Jardeleza was deprived of his
right to due process in the events leading up to, and during, the vote on the shortlist last June 30, 2014.

The JBC gives great weight and substance to the fact that it gave Jardeleza the opportunity to answer the
allegations against him. It underscores the fact that Jardeleza was asked to attend the June 30, 2014 meeting so
that he could shed light on the issues thrown at him. During the said meeting, Chief Justice Sereno informed him
that in connection with his candidacy for the position of Associate Justice of the Supreme Court, the Council would
like to propound questions on the following issues raised against him: 1] his actuations in handling an international
arbitration case not compatible with public interest;48 2] reports on his extra-marital affair in SMC; and 3] alleged
insider trading which led to the "show cause" order from the Philippine Stock Exchange.49

As Jardeleza himself admitted, he declined to answer or to explain his side, as he would not want to be "lulled into
waiving his rights." Instead, he manifested that his statement be put on record and informed the Council of the then
pendency of his letter-petition with the Court en banc. When Chief Justice Sereno informed Jardeleza that the
Council would want to hear from him on the three (3) issues against him,Jardeleza reasoned out that this was
precisely the issue. He found it irregular that he was not being given the opportunity to be heard per the JBC
rules.He asserted that a candidate must be given the opportunity to respond to the charges against him. He urged
the Chief Justice to step down from her pedestal and translate the objections in writing. Towards the end of the
meeting, the Chief Justice said that both Jardeleza’s written and oral statements would be made part of the record.
After Jardeleza was excused from the conference, Justice Lagman suggested that the voting be deferred, but the
Chief Justice ruled that the Council had already completed the process required for the voting to proceed.

After careful calibration of the case, the Court has reached the determination that the application of the "unanimity
rule" on integrity resulted in Jardeleza’s deprivation of his right to due process.

As threshed out beforehand, due process, as a constitutional precept, does not always and in all situations require a
trial-type proceeding. Due process is satisfied when a person is notified of the charge against him and given an
opportunity to explain or defend himself.50 Even as Jardeleza was verbally informed of the invocation of Section 2,
Rule 10 of JBC-009 against him and was later asked to explain himself during the meeting, these circumstances still
cannot expunge an immense perplexity that lingers in the mind of the Court. What is to become of the procedure
laid down in JBC-010 if the same would be treated with indifference and disregard? To repeat, as its wording
provides, any complaint or opposition against a candidate may be filed with the Secretary withinten (10) days from
the publication of the notice and a list of candidates. Surely, this notice is all the more conspicuous to JBC
members. Granting ex argumenti, that the 10-day period51 is only applicable to the public, excluding the JBC
members themselves, this does not discount the fact that the invocation of the first ground in the June 5, 2014
meeting would have raised procedural issues. To be fair, several members of the Council expressed their concern
and desire to hear out Jardeleza but the application of JBC-010 did not form part of the agenda then. It was only
during the next meeting on June 16, 2014, that the Council agreed to invite Jardeleza, by telephone, to a meeting
that would be held on the same day when a resource person would shed light on the matter.

Assuming again that the classified nature of the ground impelled the Council to resort to oral notice instead of
furnishing Jardeleza a written opposition, why did the JBC not take into account its authority to summon Jardeleza in
confidence at an earlier time? Is not the Council empowered to "take every possible step to verify the qualification of
the applicants?" It would not be amiss to state, at this point, that the confidential legal memorandum used in the
invocation ofthe "unanimity rule" was actually addressed to Jardeleza, in his capacity as Solicitor General. Safe to
assume is his knowledge of the privileged nature thereof and the consequences of its indiscriminate release to the
public. Had he been privately informed of the allegations against him based on the document and had he been
ordered to respond thereto in the same manner, Jardeleza’s right to be informed and to explain himself would have
been satisfied.

What precisely set off the protest of lack of due process was the circumstance of requiring Jardeleza to appear
before the Council and to instantaneously provide those who are willing to listen an intelligent defense. Was he
given the opportunity to do so? The answer is yes, in the context of his physical presence during the meeting. Was
he given a reasonable chance to muster a defense? No, because he was merely asked to appear in a meeting
where he would be, right then and there, subjected to an inquiry. It would all be too well to remember that the
allegations of his extra-marital affair and acts of insider trading sprung up only during the June 30, 2014 meeting.
While the said issues became the object of the JBC discussion on June 16, 2014, Jardeleza was not given the idea
that he should prepare to affirm or deny his past behavior. These circumstances preclude the very idea of due
process in which the right to explain oneself is given, not to ensnare by surprise, but toprovide the person a
reasonable opportunity and sufficient time to intelligently muster his response. Otherwise, the occasion becomes
anidle and futile exercise.

Needless to state, Jardeleza’s grievance is not an imagined slight but a real rebuff of his right to be informed of the
charges against him and his right to answer the same with vigorouscontention and active participation in the
proceedings which would ultimately decide his aspiration to become a magistrate of this Court.

Consequences

To write finisto this controversy and in view of the realistic and practical fruition of the Court’s findings, the Court now
declares its position on whether or not Jardeleza may be included in the shortlist, just in time when the period to
appoint a member of the Court is about to end.

The conclusion of the Court is hinged on the following pivotal points:

1. There was a misapplication of the "unanimity rule" under Section 2, Rule 10 of JBC-009 as to Jardeleza’s legal
strategy in handling a case for the government.

2. While Jardeleza’s alleged extra-marital affair and acts of insider trading fall within the contemplation of a
"question on integrity" and would have warranted the application of the "unanimity rule," he was notafforded due
process in its application.

3. The JBC, as the sole body empowered to evaluate applications for judicial posts, exercises full discretion on its
power to recommend nomineesto the President. The sui generischaracter of JBC proceedings, however, is not a
blanket authority to disregard the due process under JBC-010.

4. Jardeleza was deprived of his right to due process when, contrary to the JBC rules, he was neither formally
informed of the questions on his integrity nor was provided a reasonable opportunity to prepare his defense.

With the foregoing, the Court is compelled to rule that Jardeleza should have been included in the shortlist
submitted to the President for the vacated position of Associate Justice Abad. This consequence arose not from the
unconstitutionality of Section 2, Rule 10 of JBC-009, per se, but from the violation by the JBC of its own rules of
procedure and the basic tenets of due process. By no means does the Court intend to strike down the "unanimity
rule" as it reflects the JBC’s policy and, therefore, wisdom in its selection of nominees. Even so, the Court refuses to
turn a blind eye on the palpable defects in its implementation and the ensuing treatment that Jardeleza received
before the Council. True, Jardeleza has no vested right to a nomination, but this does not prescind from the fact that
the JBC failed to observe the minimum requirements of due process.

In criminal and administrative cases, the violation of a party’s right to due process raises a serious jurisdictional
issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process
is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. 52 This rule may well be
applied to the current situation for an opposing view submits to an undue relaxation of the Bill of Rights. To this, the
Court shall not concede. Asthe branch of government tasked to guarantee that the protection of due process is
available to an individual in proper cases, the Court finds the subject shortlist as tainted with a vice that it is
assigned to guard against. Indeed, the invocation of Section 2, Rule 10 of JBC-009 must be deemed to have never
come into operation in light of its erroneous application on the original ground against Jardeleza’s integrity. At the
risk of being repetitive, the Court upholds the JBC’s discretion in the selection of nominees, but its application of the
"unanimity rule" must be applied in conjunction with Section 2, Rule 10 of JBC-010 being invoked by Jardeleza.
Having been able to secure four (4) out of six (6) votes, the only conclusion left to propound is that a majority of the
members of the JBC, nonetheless, found Jardeleza to be qualified for the position of Associate Justice and this
grants him a rightful spot in the shortlist submitted to the President. Need to Revisit JBC’s

Internal Rules

In the Court’s study of the petition,the comments and the applicable rules of the JBC, the Court is of the view that
the rules leave much to be desired and should be reviewed and revised. It appears that the provision on the
"unanimity rule" is vagueand unfair and, therefore, can be misused or abused resulting in the deprivation of an
applicant’s right to due process.

Primarily, the invocation of the "unanimity rule" on integrity is effectively a veto power over the collective will of a
majority. This should be clarified. Any assertion by a member aftervoting seems to be unfair because it effectively
gives him or her a veto power over the collective votes of the other members in view of the unanimous requirement.
While an oppositor-member can recuse himself orherself, still the probability of annulling the majority vote ofthe
Council is quite high.

Second, integrity as a ground has not been defined. While the initial impression is that it refers to the moral fiber of a
candidate, it can be, as it has been, used to mean other things. Infact, the minutes of the JBC meetings n this case
reflect the lack of consensus among the members as to its precise definition. Not having been defined or described,
it is vague, nebulous and confusing. It must be distinctly specified and delineated.

Third, it should explicitly provide who can invoke it as a ground against a candidate. Should it be invoked only by an
outsider as construed by the respondent Executive Secretary or also by a member?

Fourth, while the JBC vetting proceedings is "sui generis" and need not be formal or trial type, they must meet the
minimum requirements of due process. As always, an applicant should be given a reasonable opportunity and time
to be heard on the charges against him or her, if there are any.

At any rate, it is up to the JBC to fine-tune the rules considering the peculiar nature of its function. It need not be
stressed that the rules to be adopted should be fair, reasonable, unambiguous and consistent with the minimum
requirements of due process.

One final note.

The Court disclaims that Jardeleza's inclusion in the shortlist is an endorsement of his appointment as a member of
the Court.1âwphi1 In deference to the Constitution and his wisdom in the exercise of his appointing power, the
President remains the ultimate judge of a candidate's worthiness.
WHEREFORE, the petition is GRANTED. Accordingly, it is hereby declared that Solicitor General Francis I-I.
Jardeleza is deemed INCLUDED in the shortlist submitted to the President for consideration as an Associate Justice
of the Supreme Court vice Associate Justice Roberto A. Abad.

The Court further DIRECTS that the Judicial and Bar Council REVIEW, and ADOPT, rules relevant to the
observance of due process in its proceedings, particularly JBC-009 and JBC-010, subject to the approval of the
Court.

This Decision is immediately EXECUTORY. Immediately notify the Office of the President of this Decision.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice