Constitutional Law 2 CASES (Preliminaries-I) PDF

ATTY. DJUMEIL GERARD P.
TINAMPAY CASE LIST
SYLLABUS IN
CONSTITUTIONAL LAW II
Atty. V. Paul Le. Montejo
PRELIMINARIES
Academic Freedom
1. GARCIA VS. FACULTY OF ADMISSION, 68 SCRA 277 (1975)
EN BANC
[G.R. No. L-40779. November 28, 1975.]
EPICHARIS T. GARCIA, petitioner, vs. THE FACULTY ADMISSION COMMITTEE,
LOYOLA SCHOOL OF THEOLOGY, herein represented by FR. ANTONIO B. LAMBINO,
respondent.
Epicharis T. Garcia in her own behalf.
Bengzon, Villegas, Zarraga, Narciso & Cudala for respondents.
SYNOPSIS
The specific issue posed by this mandamus proceeding to compel the Faculty Admission
Committee of the Loyola School of Theology to allow petitioner to continue studying there
is whether she is deemed possessed of such a right that has to be respected.
Petitioner alleged that she was admitted by respondent in the Summer of 1975 to pursue
graduate studies leading to a Master of Arts in Theology but was denied re-admission in
the following semester. She contended that the reason given by respondent for such
denial, namely: that "her frequent questions and difficulties were not always pertinent and
had the effect of slowing down the progress of the class," is not a valid ground for her
expulsion. Respondent, on the other hand, contended that petitioner was admitted in the
Summer of 1975 not to a degree program but merely to take some courses for credit,
since admission to a degree program requires acceptance by the Assistant Dean of the
Graduate School and no such acceptance was given; that respondent has discretion to
admit or continue admitting in said school any particular student, considering not only
academic or intellectual standards but also other factors such as personality traits,
character orientation in relation with other students, space limitations, facilities, professors
and optimum classroom size; and that there was no clear duty to admit petitioner since
the school of theology is a seminary for the priesthood and petitioner is admittedly and
obviously not studying for the priesthood, she being a lay person and a woman.
The Supreme Court denied the petition for mandamus and held that the academic
freedom expressly granted by the Constitution to "institutions of higher learning" involves
two kinds of freedom: that which is enjoyed by the university as a corporate body to
determine for itself who may teach, what may be taught, how it shall be taught, and who
may be admittedly to study, and that which is accorded to a university professor to inquire,
discover, publish and teach the truth as he sees it in the field of his competence.
Universities and colleges, the Supreme Court concluded, should not be looked upon as
public utilities devoid of any discretion as to whom to admit or reject.
Petition for mandamus is denied.
ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST
SYLLABUS
1.CONSTITUTIONAL LAW; ACADEMIC FREEDOM; FREEDOM ACCORDED TO A
FACULTY MEMBER, NATURE OF. The academic freedom enjoyed by institutions of
higher learning as recognized in the Constitution is more often identified with the right of
a faculty member to pursue his studies in his particular specialty and thereafter to make
known or publish the result of his endeavors without fear that retribution would be visited
on him in the event that his conclusions are found distasteful or objectionable to the power
that be, whether in the political, economic, or academic establishment. It is "a right
claimed by the accredited educator, as teacher and as investigator, to interpret his
findings and to communicate his conclusions without being subjected to any interference,
molestation, or penalization because these conclusions are unacceptable to some
constituted authority within or beyond the institution." Otherwise stated, "it is the freedom
of professionally qualified persons to inquire, discover, publish and teach the truth as they
see it in the field of their competence. It is subject to no control or authority except the
control or authority of the rational methods by which truths or conclusions are sought and
established in these disciplines."
2.ID.; ID.; FREEDOM ENJOYED BY SCHOOL AS AN INSTITUTION OF HIGHER
LEARNING. Since the academic freedom recognized by the Constitution makes
reference to the "institutions of higher learning" as recipients of this boon, it follows that
the school or college itself is possessed of such a right. It decides for itself its aims and
objectives and how best to attain them. It is free from outside coercion or interference
possibly when the overriding public welfare calls for some restraint. It has a wide sphere
of autonomy certainly extending to the choice of students. This constitutional provision is
not to be construed in a niggardly manner or in a grudging fashion. That would be to
frustrate its purpose and nullify its intent.
3.ID.; ID.; ACADEMIC FREEDOM OF A UNIVERSITY DISTINGUISHED FROM THAT
OF A FACULTY MEMBER. The Constitution grants the right of academic freedom to
the university as an institution as distinguished from the academic freedom of a university
professor. For it is a well-established fact, and yet one which sometimes tend to be
obscured in discussions of the problems of freedom, that the collective liberty of an
organization is by no means the same thing as the freedom of the individual members
within it; in fact, the two kinds of freedom are not even necessarily connected. In
considering the problems of academic freedom one must distinguish between the
autonomy of the university as a corporate body, and the freedom of the individual
university teacher.
4.ID.; ID.; ID.; FUNCTION OF A UNIVERSITY. It is the business of a university to
provide that atmosphere which is most conductive to speculation, experiment and
creation. It is an atmosphere in which there prevail "the four essential freedoms" of a
university to determine for itself on academic grounds who may teach, what may be
taught, how it shall be taught, and who may be admitted to study.
5.ID.; ID.; UNIVERSITIES, UNLIKE PUBLIC UTILITIES, HAVE DISCRETION AS TO
WHOM TO ADMIT OR REJECT. The full respect that must be accorded the academic
freedom expressly granted by the Constitution to institutions of higher learning, should
not be minimized. Colleges and universities should not be looked upon as public utilities
devoid of any discretion as to whom to admit or reject. Education, especially higher
education, belongs to a different, and certainly higher category.
6.ID.; ID.; SUFFICIENCY OF GROUNDS FOR DENIAL OF ADMISSION OF STUDENT.
Where a woman student was denied admission to pursue graduate studies leading to
a Master of Arts in Theology in a school of theology, a seminary for priesthood, and for
reasons explained by the authorities of said school, it was deemed best, in the interests
of the school as well as of the other students and her own welfare, that she continue her
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graduate work elsewhere, there is nothing arbitrary in such appraisal of the circumstances
deemed relevant, thereby rendering futile the persistence of said student to continue her
studied in said school.
TEEHANKEE, J., concurring:
1.MANDAMUS; EXHAUSTION OF ADMINISTRATIVE REMEDIES; CLEAR DUTY
MUST BE IMPOSED ON RESPONDENT. A petition for mandamus filed by a
laywoman to compel the Faculty Admissions Committee of a school of theology to admit
her as a student in said school (a seminary for the priesthood) for an M.A. in Theology,
will be dismissed where petitioner admittedly failed to exhaust her administrative
remedies, and the facts of record amply show that petitioner is obviously disqualified, and
is not studying for the priesthood, she being a laywoman and not eligible for admission to
the seminary. Mandamus to order her admission in the seminary cannot lie in the absence
of a clear right on her part and a clear duty on respondent's part to so admit her.
2.ID.; ID.; FAILURE TO AVAIL OF AND EXHAUST ADMINISTRATIVE REMEDIES
MUST BE BASED ON JUSTIFIABLE REASONS. Where petitioner admitted that she
failed to avail of and exhaust administrative remedies open to her but seeks to justify her
failure by alleging that she could have recourse neither to the President of the school
(where she seeks admission as student for M.A. in Theology) because the latter is abroad,
nor to the Secretary of Education, "since this is his busiest time of the year," such excuse
is patently inept, since neither the university president's temporary absence nor the
Secretary of Education's having "his busiest time of the year" justifies petitioner's bypassing these officials whose final administrative decision should first be given. Such
exhaustion of administrative remedies is a precondition for court action and would get all
the facts in so as to enable the courts in a petition for review simply to decide on the basis
of the facts whether the questioned act of petitioner's non-admission constitutes an
arbitrary action that would warrant judicial intervention.
3.ID.; ID.; SUPREME COURT NOT A TRIER NOR REVIEWER OF FACTS. In a
petition for mandamus, the Supreme Court will not decide a factual issue on the basis of
assertions and counter assertions of petitioner and respondent, since said Court is neither
a trier nor reviewer of facts and one of the reasons for exhaustion of administrative
remedies is that all the facts may be placed before the final administrative authorities,
whose decision may be reviewed by the courts only upon a clear showing of fraud,
collusion, arbitrariness, illegality, imposition or mistake.
4.ID.; SCHOOLS AND UNIVERSITIES; COURTS WILL NOT INTERFERE WITH
ACADEMIC JUDGMENT. Aside from the fact that the non-admission of a laywoman
as student in a seminary for priesthood by virtue of her being disqualified as such
laywoman is a matter of school policy and regulation that obviously can in no way be said
to be arbitrary (since females all over the world are up to now not admitted to the
priesthood), the faculty's "strong opposition" to having her back in the school after
summer because "they left that (her) frequent question and difficulties were not always
pertinent and had the effect of slowing down the progress of the class" and the faculty of
Admission Chairman's courteous but candid appraisal "that the advisability of (her)
completing a program(with all the course work and thesis writing) with us is very
questionable" are matters of technical and academic judgment that the courts will not
ordinarily interfere with.
5.ID.; ID.; ID.; EXCEPTION. Only after exhaustion of administrative remedies and
when there is marked arbitrariness, will the courts interfere with the academic judgment
of a school faculty and the proper authorities as to the competence and fitness of an
applicant for enrollment or to continue taking up graduate studies in a graduate school.
The courts simply do not have the competence nor inclination to constitute themselves
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as Admission Committees of the universities and institutions of higher learning and to

substitute their judgment for that of the regularly constituted Admission Committees of
such educational institutions. Were the courts to do so, they would conceivably be
swamped with petitions for admission from the thousands refused admission every year,
and next the thousands who flunked are were dropped would also be petitioning the
courts for a judicial review of their grades.
6.SCHOOLS; PRIVATE EDUCATIONAL INSTITUTIONS. Private educational
institutions do not operate merely by delegation of the state; and they differ from the
commercial public utilities whose right to exist and to operate depends upon State
authority.
7.MANDAMUS; FACTUAL ISSUE; ASSUMPTION OF FACTS. In a petition for
mandamus filed by a laywoman to compel the Faculty Admission Committee of a school
of theology to admit petitioner as a student for an M.A. in Theology, the Court should not
assume that the school has prescribed "unreasonable rules or regulations" when such
rules have not even been submitted to the Court nor is there any claim that such rules
have even been questioned in or disapproved by the Director of Public Schools (assuming
that said official has jurisdiction over a religious seminary).
MAKASIAR, J., dissenting:
1.CONSTITUTIONAL LAW; ACADEMIC FREEDOM; PROVISION OF 1973
CONSTITUTION BROADER THAN THAT OF 1935 CONSTITUTION. Section 8 (2),
Art. VI of the 1973 Constitution which provides that: "All institutions of higher learning
shall enjoy academic freedom" is broader than Section 6 of Article XIV of the 1935
Constitution, which provides that: "Universities established by the State shall enjoy
academic freedom." Under the aforecited clause of the 1973 Constitution, all colleges and
universities of higher learning, whether established by the State or not, are guaranteed
academic freedom.
2.ID.; ID.; ALSO DEEMED GRANTED TO STUDENTS. Academic freedom is not
limited to the members of the faculty nor to the administrative authorities of the
educational institution. It is also deemed granted in favor of the student body; because all
three the administrative authorities of the college or university, its faculty and its student
population constitute the educational institution, without any one of which the
educational institution can neither exist nor operate. The educational institution is
permitted by the State to exist and operate, not for the benefit of its administrative
authorities or faculty members, but for the benefit of its studentry.
3.ID.; ID.; INDIVIDUAL HAS INHERENT RIGHT TO DEVELOP HIS FACULTIES. An
individual has a natural and inherent right to learn and develop his faculties. For this
reason, the 1973 Constitution directs the State to aid and support the parents in the
rearing of the youth (Sec. 4, Art. II, 1973 Constitution); to promote their physical,
intellectual and social well-being (Sec. 5, Art. II); to establish, maintain and ensure
adequate social services in the field of education (Sec. 7, Art. II); to establish and maintain
a complete, adequate and integrated system of education relevant to the goals of national
development (Sec 8[1], Art. XV); to recognize and protect the academic freedom of all
institutions of higher learning (Sec. 8[2], Art. XV); to maintain a system of free public
elementary education and where finances permit, a system of free public education up to
the secondary level (Sec. 8[5], Art. XV); to provide citizenship and vocational training to
adult citizens and out-of-school youths and to create and maintain scholarships for poor
and deserving students (Sec. 8[6], Art. XV); and to promote scientific research and
invention, to patronize arts and letters, to provide scholarships, grants-in-aid or other
forms of incentives for special gifted children (Sec. 9[1], [2] and [3], Art. XV).
4.ID.; SCHOOLS; OPERATION OF A SCHOOL NOT AN INHERENT RIGHT. No

private person or entity has the inherent right to establish and operate a school, college
or university.
5.ID.; BILL OF RIGHTS; DIGNITY OF HUMAN PERSONALITY MUST BE ENHANCED.
The cardinal article of faith of our democratic civilization is the preservation and
enhancement of the dignity and worth of the human personality. Man's "inviolate
character" should be "protected to the largest possible extent in his thoughts and in his
beliefs as the citadel of his person", so that the individual can fully develop himself and
achieve complete fulfillment. His freedom to seek his own happiness would mean nothing
if the same were not given sanctuary "against the assaults of opportunism, the
expediency of the passing hour, the erosion of small encroachments and the scorn and
derision of those who have not patience with general principles."
6.ID.; ID.; CONSTITUTIONAL RIGHTS MUST BE RESPECTED BY THE STATE AND
BY ENTERPRISES AUTHORIZED BY THE STATE TO OPERATE. The purpose of
the Bill of Rights is to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the Courts. One's rights to life, liberty and
property, to free speech or free press, freedom of worship and assembly, and to the
fundamental rights may not be submitted to a vote; they depend on the outcome of no
elections, mush less on the caprice of bigoted, intolerant and impatient professors and
college administrators. This individual freedom and right to happiness should be
recognized and respected not only by the State but also by enterprises authorized by the
State to operate.
7.ID.; ID.; ISSUE IN AN ACTION TO COMPEL SCHOOL AUTHORITIES TO ADMIT A
STUDENT. In an action to compel the faculty admission committee of a school of
theology to admit a female student to pursue a theology course therein, the issue involved
is not merely academic freedom of the higher institutions of learning as guaranteed by
Section 8(2) of Article XV of the 1973 Constitution. The issue strikes at the broader
freedom of expression of the individual the very core of human liberty.
8.ID.; ID.; SCOPE OF ACADEMIC FREEDOM. Even if the term "Academic freedom"
were to be limited to institutions of higher learning, the term "institutions of higher learning"
contained in Sec. 8(2), Art. XV of the 1973 Constitution comprehends not only the faculty
and the college administrators but also the members of the student body. While the
university professor may have the initiative and resourcefulness to pursue his own
research and formulate his conclusions concerning the problem of his own science or
subject, the motivation therefor may be provoked by questions addressed to him by his
student. In his respect, the student especially a graduate student must not be
restrained from raising questions or from challenging the validity of dogmas, whether
theological or not. The true scholar never avoids, but on the contrary welcomes and
encourages, such searching questions even if the same will have the tendency to uncover
his own ignorance. It is not the happiness and selfulfillment of the professor alone that
are guaranteed. The happiness and full development of the curious intellect of the student
are protected by the narrow guarantee of academic freedom and more so by the broader
right of free expression, which includes free speech and press, and academic freedom.
9.ID.; ID.; SCHOOLS; AFTER STUDENT HAS BEEN ADMITTED, HE CANNOT BE
REFUSED FURTHER ADMISSION EXCEPT FOR JUSTIFIABLE GROUNDS. After
having been admitted to the theology course, petitioner cannot be refused further
attendance therein on the ground that "her frequent questions and difficulties were not
always pertinent and had the effect of slowing down the progress of the class." This
excuse is merely an euphemistic way of characterizing her questions which might be
embarrassing to the clergy or to the professor or other sensitive souls, for her questions
might impugn the validity of their tenets, dogmas and beliefs. But if she flunked in subjects
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or the entire course, she could be justifiably denied enrollment in the second semester.
Secretarian schools should realize that intolerance, bigotry and the inquisition relics of
the Dark Ages tyrannize the mind and spirit of man and are antithetical to their very
function of nourishing the intellect and spreading enlightenment.
10.ID.; ID.; EDUCATION IS SOVEREIGN STATE FUNCTION; PRIVATE SCHOOLS
SIMILAR TO COMMERCIAL PUBLIC UTILITY. The fact that petitioner was admitted
free to study theology without intending to be a priest, does not weaken her position. It
should be stressed that education is a sovereign state function. It is a vital duty of the
State which can delegate the same to private educational institutions that are qualified
and duly authorized to operate. Private educational institutions are, therefore, not different
in this respect from the commercial public utilities, whose right to exist and to operate
depends upon state authority. The moment they are allowed to operate they must abide
by the Constitution, laws and implementing rules of the Government on the matter.
11.ID.; ID.; AUTHORITY OF PRIVATE SCHOOLS TO ISSUE REGULATIONS DOES
NOT INCLUDE POWER TO PRESCRIBED UNREASONABLE RULES. While a
college or university can prescribe regulations for admission to the various courses of
study offered by it, this prerogative does not include the power to prescribe unreasonable
rules or regulations violative of the constitutional rights of the citizen, such as freedom of
expression in general and academic freedom in particular.
12.ID.; ID.; NATURE OF FUNCTIONS OF SCHOOLS. The educational institutions

perform a more vital function than the ordinary public utilities. The institution of learning
feeds and nurtures the human mind and spirit to insure a robust, healthy and educated
citizenry on whom national survival and national greatness depend. The ordinary public
utilities merely serve the material comforts and convenience of the people, who can
certainly go on living without them. But the people cannot wallow in darkness and
ignorance without hastening their extermination from the face of the earth.
DECISION
FERNANDO, J p:
The specific issue posed by this mandamus proceeding to compel the Faculty Admission
Committee of the Loyola School of Theology, represented by Father Antonio B. Lambino,
to allow petitioner Epicharis T. Garcia to continue studying therein is whether she is
deemed possessed of such a right that has to be respected. That is denied not only on
general principle, but also in view of the character of the particular educational institution
involved. It is a seminary. It would appear therefore that at most she can lay claim to a
privilege, no duty being cast on respondent school. Moreover, as a reinforcement to such
an obvious conclusion, there is the autonomy recognized by the Constitution in this
explicit language: "All institutions of higher learning shall enjoy academic freedom." 1 The
petition must therefore fail.
Petitioner alleged: "3. That in summer, 1975, Respondent admitted Petitioner for studies
leading to an M.A. in Theology; 4. That on May 30, 1975, when Petitioner wanted to enroll
for the same course for the first semester, 1975-76, Respondent told her about the letter
he had written her, informing her of the faculty's decision to bar her from re-admission in
their school; 5. That the reasons stated in said letter, dated May 19, 1975 . . . do not
constitute valid legal ground for expulsion, for they neither present any violation of any of
the school's regulation, nor are they indicative of gross misconduct; 6. That from June 25,
1975, Petitioner spent much time and effort in said school for the purpose of arriving at a
compromise that would not duly inconvenience the professors and still allow her to enjoy
the benefits of the kind of instruction that the school has to offer, but all in vain; she was
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in fact told by Fr. Pedro Sevilla, the school's Director, that the compromises she was
offering were unacceptable, their decision was final, and that it were better for her to seek
for admission at the UST Graduate School; 1. Petitioner then subsequently made
inquiries in said school, as to the possibilities for her pursuing her graduate studies for an
M.A. in Theology, and she was informed that she could enroll at the UST Ecclesiastical
Faculties, but that she would have to fulfill their requirements for Baccalaureate in
Philosophy in order to have her degree later in Theology which would entail about four
to five years more of studies whereas in the Loyola School of Studies to which she is
being unlawfully refused re-admission, it would entail only about two years more; 8. That
Petitioner, considering that time was of the essence in her case, and not wanting to be
deprived of an opportunity for gaining knowledge necessary for her life's work, enrolled
as a special student at said UST Ecclesiastical Faculties, even if she would not thereby
be credited with any academic units for the subject she would take; 9. That Petitioner
could have recourse neither to the President of her school, Fr. Jose Cruz, he being with
the First Couple's entourage now in Red China, nor with the Secretary of Education, since
this is his busiest time of the year, and June 11, 1975 is the last day for registration; . . ."
2 She prayed for a writ of mandamus for the purpose of allowing her to enroll in the current
semester. She made it more specific in a pleading she called Amended Petition so that
she would be allowed cross-enrollment even beyond the June 11, 1915 deadline for
registration and that whatever units may be accredited to her in the UST Ecclesiastical
Faculties be likewise recognized by respondent. Her petition included the letter of
respondent Father Lambino which started on a happy note that she was given the grade
of B+ and B in two theology subjects, but ended in a manner far from satisfactory for her,
as shown by this portion thereof: "Now, you will have to forgive me for going into a matter
which is not too pleasant. The faculty had a meeting after the summer session and several
members are strongly opposed to having you back with us at Loyola School of Theology.
In the spirit of honesty may I report this to you as their reason: They felt that your frequent
questions and difficulties were not always pertinent and had the effect of slowing down
the progress of the class; they felt you could have tried to give the presentation a chance
and exerted more effort to understand the point made before immediately thinking of
difficulties and problems. The way things are, I would say that the advisability of your
completing a program (with all the course work and thesis writing) with us is very
questionable. That you have the requisite intellectual ability is not to be doubted. But it
would seem to be in your best interests to work with a faculty that is more compatible with
your orientation. I regret to have to make this report, but I am only thinking of your
welfare." 3
This Court, in a resolution of June 23, 1975, required comment on the part of respondent
Faculty Admission Committee, Loyola School of Theology. 4 As submitted on behalf of
Father Lambino, it set forth the following: "Respondent is the Chairman of the Faculty
Admission Committee of the Loyola School of Theology, which is a religious seminary
situated in Loyola Heights, Quezon City; In collaboration with the Ateneo de Manila
University, the Loyola School of Theology allows some lay students to attend its classes
and/or take courses in said Loyola School of Theology but the degree, if any, to be
obtained from such courses is granted by the Ateneo de Manila University and not by the
Loyola School of Theology; For the reason above given, lay students admitted to the
Loyola School of Theology to take up courses for credit therein have to be officially
admitted by the Assistant Dean of the Graduate School of the Ateneo de Manila University
in order for them to be considered as admitted to a degree program; Petitioner in the
summer of 1975 was admitted by respondent to take some courses for credit but said
admission was not an admission to a degree program because only the Assistant Dean
of the Ateneo de Manila Graduate School can make such admission; That in the case of
petitioner, no acceptance by the Assistant Dean of the Ateneo de Manila Graduate School
was given, so that she was not accepted to a degree program but was merely allowed to
take some courses for credit during the summer of 1975; Furthermore, petitioner was not
charged a single centavo by the Loyola School of Theology and/or the Ateneo de Manila
University in connection with the courses she took in the summer of 1975, as she was
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allowed to take it free of charge; That respondent Fr. Antonio B. Lambino, S.J., and/or the
Loyola School of Theology thru its Faculty Admission Committee, necessarily has
discretion as to whether to admit and/or to continue admitting in the said school any
particular student, considering not only academic or intellectual standards but also other
considerations such as personality traits and character orientation in relation with other
students as well as considering the nature of Loyola School of Theology as a seminary.
The Petition for Mandamus therefore does not lie, as there is no duty, much less a clear
duty, on the part of respondent to admit the petitioner therein in the current year to take
up further courses in the Loyola School of Theology." 5 It was likewise alleged in the
aforesaid comment that as set forth in the letter of May 19, 1975, the decision not to allow
petitioner to take up further courses in said seminary "is not arbitrary, as it is based on
reasonable grounds, . . . ." 6 Then reference was made to the availability of non-judicial
remedies which petitioner could have pursued. 7 The prayer was for the dismissal of the
petition for lack of merit. Petitioner sought permission to reply and it was granted.
Thereafter, she had a detailed recital of why under the circumstances she is entitled to
relief from the courts. In a resolution of August 8, 1975, this Court considered the
comment of respondent as answer and required the parties to file their respective
memoranda. That they did, and the petition was deemed submitted for decision. As was
made clear at the outset, we do not see merit in it. It must therefore be dismissed.
1.In respondent's memorandum, it was made clear why a petition for mandamus is not
the proper remedy. Thus: "Petitioner cannot compel by mandamus, the respondent to
admit her into further studies in the Loyola School of Theology. For respondent has no
clear duty to so admit the petitioner. The Loyola School of Theology is a seminary for the
priesthood. Petitioner is admittedly and obviously not studying for the priesthood, she
being a lay person and a woman. And even assuming ex gratia argumenti that she is
qualified to study for the priesthood, there is still no duty on the part of respondent to
admit her to said studies, since the school has clearly the discretion to turn down even
qualified applicants due to limitations of space, facilities, professors and optimum
classroom size and component considerations." 8 No authorities were cited, respondent
apparently being of the view that the law has not reached the stage where the matter of
admission to an institution of higher learning rests on the sole and uncontrolled discretion
of the applicant. There are standards that must be met. There are policies to be pursued.
Discretion appears to be of the essence. In terms of Hohfeld's terminology, what a student
in the position of petitioner possesses is a privilege rather than a right. She cannot
therefore satisfy the prime and indispensable requisite of a mandamus proceeding. Such
being the case, there is no duty imposed on the Loyola School of Theology. In a rather
comprehensive memorandum of petitioner, who unfortunately did not have counsel, an
attempt was made to dispute the contention of respondent. There was a labored effort to
sustain her stand, but it was not sufficiently persuasive. It is understandable why. It was
the skill of a lay person rather than a practitioner that was evident. While she pressed her
points with vigor, she was unable to demonstrate the existence of the clear legal right that
must exist to justify the grant of this writ.
2.Nor is this all. There is, as previously noted, the recognition in the Constitution of
institutions of higher learning enjoying academic freedom. It is more often identified with
the right of a faculty member to pursue his studies in his particular specialty and thereafter
to make known or publish the result of his endeavors without fear that retribution would
be visited on him in the event that his conclusions are found distasteful or objectionable
to the powers that be, whether in the political, economic, or academic establishments.
For the sociologist, Robert McIver, it is "a right claimed by the accredited educator, as
teacher and as investigator, to interpret his findings and to communicate his conclusions
without being subjected to any interference, molestation, or penalization because these
conclusions are unacceptable to some constituted authority within or beyond the
institution." 9 As for the educator and philosopher Sidney Hook, this is his version: "What
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is academic freedom? Briefly put, it is the freedom of professionally qualified persons to

inquire, discover, publish and teach the truth as they see it in the field of their competence.
It is subject to no control or authority except the control or authority of the rational methods
by which truths or conclusions are sought and established in these disciplines." 10
3.That is only one aspect though. Such a view does not comprehend fully the scope of
academic freedom recognized by the Constitution. For it is to be noted that the reference
is to the "institutions of higher learning" as the recipients of this boon. It would follow then
that the school or college itself is possessed of such a right. It decides for itself its aims
and objectives and how best to attain them. It is free from outside coercion or interference
save possibly when the overriding public welfare calls for some restraint. It has a wide
sphere of autonomy certainly extending to the choice of students. This constitutional
provision is not to be construed in a niggardly manner or in a grudging fashion. That would
be to frustrate its purpose, nullify its intent. Former President Vicente G. Sinco of the
University of the Philippines, in his Philippine Political Law, is similarly of the view that it
"definitely grants the right of academic freedom to the university as an institution as
distinguished from the academic freedom of a university professor." 11 He cited the
following from Dr. Marcel Bouchard, Rector of the University of Dijon, France, President
of the conference of rectors and vice-chancellors of European universities: "'It is a wellestablished fact, and yet one which sometimes tends to be obscured in discussions of the
problems of freedom, that the collective liberty of an organization is by no means the
same thing as the freedom of the individual members within it; in fact, the two kinds of
freedom are not even necessarily connected. In considering the problems of academic
freedom one must distinguish, therefore, between the autonomy of the university, as a
corporate body, and the freedom of the individual university teacher.'" 12 Also: "To clarify
further the distinction between the freedom of the university and that of the individual
scholar, he says: 'The personal aspect of freedom consists in the right of each university
teacher recognized and effectively guaranteed by society to seek and express the
truth as he personally sees it, both in his academic work and in his capacity as a private
citizen. Thus the status of the individual university teacher is at least as important, in
considering academic freedom, as the status of the institutions to which they belong and
through which they disseminate their learning.'" 13 He likewise quoted from the President
of the Queen's University in Belfast, Sir Eric Ashby: "'The internal conditions for academic
freedom in a university are that the academic staff should have de facto control of the
following functions: (i) the admission and examination of students; (ii) the curricula for
courses of study; (iii) the appointment and tenure of office of academic staff; and (iv) the
allocation of income among the different categories of expenditure. It would be a poor
prospect for academic freedom if universities had to rely on the literal interpretation of
their constitutions in order to acquire for their academic members control of these four
functions, for in one constitution or another most of these functions are laid on the
shoulders of the lay governing body.'" 14 Justice Frankfurter, with his extensive
background in legal education as a former Professor of the Harvard Law School, referred
to what he called the business of a university and the four essential freedoms in the
following language: "It is the business of a university to provide that atmosphere which is
most conducive to speculation, experiment and creation. It is an atmosphere in which
there prevail 'the four essential freedoms' of a university to determine for itself on
academic grounds who may teach, what may be taught, how it shall be taught, and who
may be admitted to study.'" 15 Thus is reinforced the conclusion reached by us that
mandamus does not lie in this case.
4.It is not an easy matter then to disregard the views of persons knowledgeable in the
field, to whom cannot be imputed lack of awareness of the need to respect freedom of
thought on the part of students and scholars. Moreover, it could amount to minimizing the
full respect that must be accorded the academic freedom expressly granted by the
Constitution "to institutions of higher learning." It is equally difficult to yield conformity to
the approach taken that colleges and universities should be looked upon as public utilities
devoid of any discretion as to whom to admit or reject. Education, especially higher

education, belongs to a different, and certainly higher, category.
5.It only remains to be added that the futility that marked the persistence of petitioner to
continue her studies in the Loyola School of Theology is the result solely of a legal
appraisal of the situation before us. The decision is not to be construed as in any way
reflecting on the scholastic standing of petitioner. There was on the part of respondent
due acknowledgment of her intelligence. Nonetheless, for reasons explained in the letter
of Father Lambino, it was deemed best, considering the interest of the school as well as
of the other students and her own welfare, that she continue her graduate work
elsewhere. There was nothing arbitrary in such appraisal of the circumstances deemed
relevant. It could be that on more mature reflection, even petitioner would realize that her
transfer to some other institution would redound to the benefit of all concerned. At any
rate, as indicated earlier, only the legal aspect of the controversy was touched upon in
this decision.
WHEREFORE, the petition is dismissed for lack of merit.
Barredo, Antonio, Esguerra, Muoz Palma, Aquino, Concepcion, Jr. and Martin, JJ.,
concur.
Castro, J., took no part.
||| (Garcia v. Faculty Admission Committee, G.R. No. L-40779, [November 28, 1975], 160A PHIL 929-958)
2. ANNOTATION 313 SCRA 428
ANNOTATION
BROAD ASPECTS OF ACADEMIC FREEDOM
By
JORGE R. COQUIA*
______________
1.Academic Freedom Generally Defined, p. 429
2.Broader Aspects of Academic Freedom, p. 429
3.Internal Conditions for Academic Freedom of Schools, p. 430
4.Constitutional Provisions on Academic Freedom, p. 431
5.Religious Freedom versus Academic Freedom, p. 433
6.Human Rights Provisions on Academic Freedom, p. 436
7.Right of Students to be Admitted to School, p. 437
8.Limitations on Academic Freedom, p. 438
______________
The main issue resolved by the Supreme Court in the case of UNIVERSITY OF THE
PHILIPPINES BOARD OF REGENTS, CHANCELLOR ROGER POSADAS, DR.
EMERLINDA ROMAN, DEAN CONSUELO PAZ, DR. ISAGANI MEDINA, DR. MARIA
SERENA DIOKNO, DR. OLIVIA CAOILI, DR. FRANCISCO NEMENZO II, DEAN
PACIFICO AGABIN, CARMELITA GUNO, and MARICHU LAMBINO versus HON.
COURT OF APPEALS and AROKIASWAMY WILLIAM MARGARET CELINE, G.R. No.
134625 dated August 31, 1999 is on the academic freedom of schools and universities.
May a writ of mandamus be issued by the court be a valid remedy to compel an
educational institution to grant an academic degree to students. More specifically in this
case, may a school or university be compelled to restore an academic decree already
granted to her? The case involved a Ph.D. degree in Anthropology already granted to a
student but was later withdrawn after a finding that some portions of the doctoral
dissertation she submitted were lifted from a publication without a proper
acknowledgment of the source.
10
1. Academic Freedom Generally Defined

Generally, academic freedom is the liberty to pursue and teach relevant knowledge and
to discuss it freely without restriction from school or public officials or from other sources
of influence. Academic freedom according to Justice Felix Frankfurter includes the
determination on (1) who may teach; (2) what may be taught; (3) how it shall be taught;
and (4) who may be admitted to study. (Sweezy vs. New Hampshire, 354 U.S. 234 [1957])
2. Broader Aspects of Academic Freedom
The meaning of academic freedom has been very much broadened. Under the naturalism
theory, an academic freedom for the teacher or students is the selection and pursuit of
various experiences. It is also a right of a faculty member to pursue his studies in his
particular specialty and thereafter to make known or publish the result of his endeavors
without fear that retribution would be visited on him in the event that his conclusions are
found distasteful or objectionable to the powers that be, whether in the political, economic,
or academic establishments. (Pedden and Ryan, Catholic Philosophy of Education, p.
590)
The Supreme Court in Garcia vs. Faculty Admission Committee, 68 SCRA 283 (1975)
enumerated several ways by which academic freedom can be exercised, namely, it is a
right claimed by the accredited educator, as teacher and as investigator, to interpret his
findings and to communicate his conclusions without being subjected to any interference,
molestation, or penalization because these conclusions are unacceptable to some
constituted authority within or beyond the institution.
It is a freedom of professionally qualified persons to inquire, discover, publish and teach
the truth as they see it in the field of their competence. It is subject to no control or
authority except the control or authority of the rational methods by which truths or
conclusions are sought and established in these disciplines.
It is the right of a school or college, as an institution of higher learning, to decide for itself
its aims and objectives and how best to attain them, free from outside coercion or
interference save possibly when the overriding public welfare calls for some restraint, and
with a wide sphere of autonomy certainly extending to the choice of students.
It is the right of each university teacher, recognized and effectively guaranteed by society,
to seek and express the truth as he personally sees it, both in his academic work and in
his capacity as a private citizen.
3. Internal Conditions for Academic Freedom of
Schools
The internal conditions for academic freedom in a university are that the academic staff
should have de facto control of the following functions: (1) the admission and examination
of students; (2) the curricula for courses of study; (3) the appointment and tenure of office
of academic staff; and (4) the allocation of income among the different categories of
expendi-ture.
The essential freedoms of a university are to determine for itself on academic grounds
who may teach, what may be taught, how it shall be taught, and who may be admitted to
study.
The freedom of the teacher or research worker in higher institutions of learning to
investigate and discuss the problems of his science and to express his conclusions,
whether through publication or in the instruction of the teacher, without interference from
political and ecclesiastical authorities or administrative opinions of institutions in which he
is employed, unless his methods are found by a qualified body of his own profession to
be clearly incompetent or contrary to professional ethics. (Garcia vs. Faculty Admission
Committee, 68 SCRA 283 [1975])
4. Constitutional Provisions on Academic Freedom
Art. XIV, sec. 5 of the Phil. Constitution states:
1. The State shall take into account regional and sectoral needs and conditions and shall
encourage local planning in the development of educational policies and programs.
2. Academic freedom shall be enjoyed in all institutions of higher learning.
3. Every citizen has a right to select a profession or course of study, subject to fair,
reasonable, and equitable admission and academic requirements.
11
4. The State shall enhance the right of teachers to professional advancement. Nonteaching academic and non-academic personnel shall enjoy the protection of the State.
5. The State shall assign the highest budgetary priority to education and ensure that
teaching will attract and retain its rightful share of the best available talents through
adequate remuneration and other means of job satisfaction and fulfillment.
The 1935 Philippine Constitution referred on academic freedom only to universities
established by the State, not in private institutions of higher learning (Art. XIII, section 5,
1935). The 1973 Philippine Constitution states that all institutions of higher learning shall
enjoy academic freedom, including private schools. The 1987 Philippine Constitution has
spelled out a much broader aspect of academic freedom. The respect for freedom of
belief and expression requires that all higher institutions per se can lay claim to academic
freedom. Precisely because the use of public funds for state universities may be utilized
as a means for legislators to interfere in academic matters, there was a need for an explicit
affirmation of such a right. In Laxamana vs. Borlaza, 47 SCRA 29 (1972), an aspect of
academic freedom was discussed in this wise: The vital need in a constitutional
democracy for freedom of expression is undeniable whether as a means of assuring
individual self-fulfillment, of attaining the truth, of securing participation by the people in
social, including political, decision-making, and of maintaining the balance between
stability and change. The trend as reflected in Philippine and American decisions is to
recognize the broadest scope and assure it the widest latitude. Nowhere should there be
greater respect for its commands than in educational institutions. It would make a
mockery of academic freedom if there is the gnawing fear on the part of those competent
to contribute with their knowledge gained within years of study and research that what
they say, or what they write, if displeasing to the powers that be, could be visited with
retribution. Nor is it a fine example for students if such an atmosphere would infect the
campus. While there is no particular right of petitioner violated in the light of the facts as
duly found, what did transpire bodes ill for the spirit of free inquiry which should permeate
campus life. Justice Frankfurter in Sweezy vs. New Hampshire, 354 U.S. 234 [1957] said
that professors in natural sciences is not remotely confined to findings made in the
laboratory. Insights into the mysteries of nature are born of hypotheses and speculation.
The more so is true in the pursuit of understanding in the groping endeavors of what are
called the social sciences, the concern of which is man and society. The problem that are
the respective preoccupations of anthropology, economics, law, psychology, sociology
and related areas of scholarship are merely departmentalized, dealing, by way of
manageable division of analysis, with interpenetrating aspects of holistic perplexities. For
societys goodif understanding be an essential need of societyinquiries into these
problems, speculations about them, stimulation in others of reflection upon them, must
be left as unfettered as possible. Political power must abstain from intrusion into this
activity of freedom, pursued in the interest of wise government and the peoples wellbeing, except for reasons that are exigent and obviously compelling. These pages need
not be burdened with proof, based on the testimony of a number of impressive witnesses,
of the dependence of a free society on free universities. This means the exclusion of
governmental intervention in the intellectual life of a university. It matters little whether
such evitably tends to check the ardor and fearlessness of scholars, qualities at once so
fragile and so indispensable for fruitful academic labor. (E. Fernando, The Constitution of
the Philippines, p. 490)
The freedom of the teacher or research worker in higher institutions of learning to
investigate and discuss the problems of his science and to express his conclusions,
whether through publication or in the instruction of students, without interference from
political or ecclesiastical authority, or from the administrative officials of the institution in
which he is employed, unless his methods are found by qualified bodies of his won
profession to be completely incompetent or contrary to professional ethics.
5. Religious Freedom versus Academic Freedom
True academic freedom as opposed to an unbridled license to expound and teach ones
religious views without any limitations was illustrated in two anti-evolution cases in the
United States.
12
Under a Tennessee statute (Sec. 2344, Code of Tennessee [1932]), Scopes, a teacher
in the public schools of the State of Tennessee, was indicted for denying the story of the
divine creation of man, as based on the Bible. The teacher instead followed the Darwinian
theory of evolution. Upholding the constitutionality of the statute, the court dwelt on the
theistic and materialistic concepts of evolution. The Tennessee court sustained the
legality of the statute and said: He (Scopes) was under a contract with the State to work
in an institution of the State. He had no right or privilege to serve the State except upon
such terms as the State prescribed. His liberty, privilege, his immunity to teach and
proclaim the theory of evolution elsewhere than in the service of the State was no wise
touched by this law.
The main contention of the appellant was that the antievolution act passed by the
Tennessee legislature contravened a State constitutional provision affirming that it shall
be the duty of the general assembly . . . to cherish literature and science.
Recognizing the moral duty of the State to safeguard and protect its citizen from
unwarranted views, the court pointed out that the statute was not an exercise of police
power, but an act of the State as a corporation, a proprietor, an employer.
The more important issue was whether or not this Act violated the constitutional provision
prohibiting the State from giving any preference to any religious establishment or mode
of worship.
Resolving this issue, the Court said:
We are not able to see how the prohibition of teaching the theory that man has
descended from a lower order of animals gives preference to any religious establishment
or mode of worship . . . Belief or unbelief in the theory of evolution is no more a
characteristic of any religious establishment or mode of worship that in belief or unbelief
in the wisdom of the prohibition laws. (Scopes vs. State, 154 Tennessee 105 [1927])
The U.S. Supreme Court in a similar case involving an Arkansas statute ruled that the
monkey law is unconstitutional. The Arkansas statute prohibited the teaching of Charles
Darwins theory of evolution which asserts that men biologically originated from the
species of monkeys. Mrs. Epperson, a biology teacher, taught said theory.
In holding that the statute is violative of the freedom of religion, the Court said that it is an
attempt to blot out a particular theory, because of its supposed conflict with the biblical
account of mans origin. (Epperson vs. Arkansas, 393 U.S. 97 [1968])
In order that persons may fulfill their proper function, let it be recognized that all the
faithful, clerical and law, possess a lawful freedom of inquiry and of thought and the
freedom to express their minds humbly and courageously about those matters in which
they enjoy competence. By virtue of the right and obligation of the State to guard against
the introduction of erroneous views, and to see to it that instruction given in schools shall
not undermine the common good, Congress created a Board of Textbooks which should
have charge of the selection and approval of books to be used in the public and private
schools. This board was given the power to prohibit the use of any textbooks which it
may find to be against the law, or offend the dignity and honor of the Government and the
people of the Philippines, or which it may find to be against the general policies of the
Government, of which it may deem pedagogically unsuitable. (Coquia, Church and State
Law and Relations, 1989 ed., p. 283)
Keyishian vs. Board of Regents, 385 U.S. 589 [1967] was another U.S. decision involving
academic freedom. In 1962, faculty members were permitted to continue their
employment but on the condition that, now as state employees, they certify, pursuant to
state law, that they were not or ever had been Communists, or that they had not taught
or advocated the overthrow of the government by force and violence. Harry Keyishian
and other members of the faculty, facing dismissal for refusing to comply by signing the
requisite certificates, brought suit against the governing board of the state educational
system for declaratory and injunctive relief. A three-judge federal district court upheld the
constitutionality of the requirement and plaintiffs appealed.
The U.S. Supreme Court finding overbreadth and vagueness in the statute, threw out the
New York loyalty oath requiring a denial of Communist affiliation as a prerequisite to
teaching at a state university. The Court relied on the fact that the statute could cover
mere membership in a Communist organization, something less than the constitutionally
13
required standard of membership plus a specific intent to further the unlawful aims of an
organization.
6. Human Rights Provisions on Academic Freedom
Article 26 of the Universal Declaration of Human Rights reads:
1. Everyone has the right to education. Education shall be free, at least in the elementary
and fundamental stages. Elementary education shall be compulsory. Technical and
professional education shall be made generally available and higher education shall be
equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to the
strengthening of respect for human rights and fundamental freedoms. It shall promote
understanding, tolerance and friendship among all nations, racial or religious groups, and
shall further the activities of the United Nations for maintenance of peace.
Article 13 of the International Covenant on Economic, Social and Cultural Rights reads:
1. The State Parties to the present Covenant recognize the right of everyone to education.
They agree that education shall be directed to the full development of the human
personality and the sense of its dignity, and shall strengthen the respect for human rights
and fundamental freedoms. They further agree that education shall enable all persons to
participate effectively in a free society, promote understanding, tolerance and friendship
among all nations and all racial, ethnic or religious groups, and further the activities of the
United Nations for the maintenance of peace.
2. The State Parties to the present Covenant recognize that, with a view to achieving the
full realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational
secondary education, shall be made generally available and accessible to all by every
appropriate means, and in particular by the progressive introduction of free education;
c) Higher education shall be made equally accessible to all, on the basis of capacity, by
every appropriate means, and in particular by the progressive introduction of free
education;
(d) Fundamental education shall be encouraged or intensified as far as possible for those
persons who have not received or completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively pursued, and
adequate fellowship system shall be established, and the material conditions of teaching
staff shall be continuously improved.
3. The State Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to choose for their children schools, other
than those established by the public authorities, which conform to such minimum
educational standards as may be laid down or approved by the State and to ensure the
religious and moral education of their children in conformity with their own convictions.
4. No part of this article shall be construed so as to interfere with the liberty of individuals
and bodies to establish and direct educational institutions, subject always to the
observance of the principles set forth in paragraph 1 of this article and to the requirement
that the education given in such institutions shall conform to such minimum standards as
may be laid down by the State.
7. Right of Students to be Admitted to School
The court said that what students possess is a privilege rather than a right. (Garcia vs.
The Faculty Admission Committee, Loyola School of Theology; 68 SCRA 277 [1975]).
The court also said in Ateneo de Manila University vs. Capulong, (222 SCRA 647 [1993]),
reiterating Garcia vs. The Faculty Admission Committee, Loyola School of Theology (68
SCRA 277 [1975]) that admission to an institution of higher learning is discretionary upon
a school, the same being a privilege the art of the student rather than a right. While under
Education Act of 1982, students have the right to freely choose their field of study, subject
to existing curricula and to continue their course therein up to graduation, such right is
subject, as all rights are, to the established academic and disciplinary standards laid down
by the academic institution. (See also Tangonan vs. Pao, 137 SCRA 245 [1985];
Magtibay vs. Gar-cia, 120 SCRA 370 [1983])
14
The matter of admission of students is within the ambit of academic freedom and
therefore, beyond the province of the courts to decide. (University of the Philippines Board
of Regents vs. Ligot-Telan, 227 SCRA 342 [1993])
8. Limitations on Academic Freedom
In Board of Medical Education vs. Judge Alfonso, 176 SCRA 304 [1989], the Supreme
Court sustained the decision of the Board of Medical Education in closing the Philippine
Muslim-Christian College of Medicine for being inadequate. The Court said that being a
matter of law that the Secretary of Education, Culture and Sports exercises the power to
enjoin compliance with the requirements laid down for medical schools and to mete out
sanctions where he finds that violations thereof have been committed, it was a grave
abuse of discretion for the respondent judge to issue the questioned injunction and
thereby thwart official action, in the premises correctly taken, allowing the College to
operate without the requisite government permit. A single ocular inspection, done after
the College had been pre-warned thereof, did not, in the circumstances, warrant
overturning the findings of more qualified inspectors about the true state of the College,
its faculty, facilities, operations, etc. The members of the evaluating team came from the
different sectors in the fields of education and medicine, and their judgment in this
particular area is certainly better than that of the respondent Judge whose sole and only
visit to the school could hardly have given him much more to go on than a brief look at
the physical plant and facilities and into the conduct of the classes and other school
activities. (Board of Medical Education vs. Alfonso, 176 SCRA 304 [1989])
In Capitol Medical Center, Inc. vs. Court of Appeals, 178 SCRA 493 [1989], the closure
of the nursing school was upheld, after due notice to the DECS, when its teachers and
students declared a strike, refusing to hold classes and take examinations. The school
may not be forced to reopen at the instance of the striking students. The court held that
the lower court gravely abused its discretion in compelling the CMCC to reopen and readmit the striking students for enrollment in the second semester of their courses. Since
their contracts with the school were terminated at the end of the first semester of 1987,
and as the school has already ceased to operate, they have no clear legal right to reenroll and the school has no legal obligation to reopen and re-admit them. No provision
in the Education Act of 1982, nor in the Manual of Regulations for Private Schools can
be, or has been, cited to support the novel view that a school is obligated to remain open
until its students have completed their courses therein. Indeed, neither is there a law or
rule that obligates a student who has enrolled in a school, to remain there until he finishes
his course. On the contrary he may transfer at any time to any school that is willing to
accept him. (Capitol Medical Center, Inc. vs. Court of Appeals, 178 SCRA 493 at 507
[1989])
InUniversity of the Philippines vs. Judge Ayson, 176 SCRA 571, the Court also sustained
the closure of the U.P. Baguio High School, on the ground that U.P. was set up as a
tertiary institution and that the High School was set up only as an incident to its tertiary
functions. The court said that the University of the Philippines as an institution of higher
learning enjoying academic freedom. It is apparent that secondary education is not the
mandated function of the University of the Philippines; consequently, the latter can validly
phase out and/or abolish the UPCBHS especially so when the requirements for its
continuance have not been met, Rep. Act No. 6655 to the contrary notwithstanding. The
findings of facts by the Board of Regents which led to its decision to phase out the
UPCBHS must be accorded respect, if not finality. Acts of an administrative agency within
their areas of competence must not be casually overturned by the courts. (University of
the Philippines vs. Ayson, 176 SCRA 572 [1989])
In Non vs. Dames II, 185 SCRA 523 [1990], the Supreme Court reversed its ruling in
Alcuaz vs. PSBA, 161 SCRA 7 [1988], declaring that the termination of contract theory
in Alcuaz can no longer be used as a valid ground to deny readmission or re-enrollment
to students who had led or participated in student mass actions against the school. The
Court held that the students do not shed their constitutionally-protected rights of free
expression at the school gates. Cited with approval were the rulings in Malabanan vs.
Ramento, 129 SCRA 359 [1984], and with Villar vs. Technological Institute of the
15
Philippines, 135 SCRA 706 [1985]; Arreza vs. Gregorio Araneta University Foundation,
137 SCRA 94 [1985]; and Guzman vs. National Unversity, 142 SCRA 699 [1986]
The only valid grounds to deny readmission of students are academic deficiency and
breach of the schools reasonable rules of conduct. Be that as it may, in imposing
disciplinary sanctions on students, it was held in Guzman vs. National University, 142
SCRA 699 [1986] that the following minimum standards of procedural due process must
be satisfied: (i) the students must be informed in writing of the nature and cause of the
accusation against them; (ii) they shall have the right to answer the charges against them,
with the assistance of counsel, if desired; (iii) they shall be informed of the evidence
against them; (iv) they shall have the right to adduce evidence in their own behalf; and
(v) the evidence must be duly considered by the investigating committee or official
designated by the school authorities to hear and decide the case. See also: Ateneo
University vs. Judge Capulong, 222 SCRA 644. Not applicable aforesaid rulings as in
Garcia vs. The Faculty Admission Committee, Loyola School of Theology, 68 SCRA 277
[1975] the issue was whether a female lay student had the right to compel a seminary for
the priesthood to admit her for theological studies leading to a degree, and Tangonan vs.
Pano, 137 SCRA 245 [1985] where the issue was whether a nursing student, who was
admitted on probation and who failed in her nursing subjects, may compel her school to
readmit her for enrollment.
InTan vs. Court of Appeals, 199 SCRA 212,which involved a bitter conflict between the
administrators of Grace Christian High School and the parents of some students on
matters of school policy, the Supreme Court said that the maintenance of a morally
conducive and orderly educational environment will be seriously imperiled if, under the
circumstances of the case, Grace Christian High School is forced to admit petition-ers
children and to reintegrated them into the student body.
In University of San Carlos vs. Court of Appeals, 166 SCRA 570 [1988], the Court held
that it is within the sound discretion of the university to determine whether a student may
be conferred graduation honors, considering that the student had incurred a failing grade
in an earlier course she took in school. Schools of learning are given ample discretion to
formulate rules and guidelines in granting honors for purposes of graduation.
In Lupangco vs. Court of Appeals, 160 SCRA 848 [1988], Resolution No. 105 of the
Professional Regulation Commission prohibiting examinees for the accountancy
licensure examinations from attending any review class, briefing, conference or the like
or to receive any hand-out, review material or any tip from any school, college or
university, or any review center infringes on the examinees right to liberty guaranteed by
the Constitution. It violated the academic freedom of the schools concerned.
In Reyes vs. Court of Appeals, 194 SCRA 402 [1991], the Supreme Court ruled that under
the U.P. Charter, the power to fix admission requirements is vested in the University
Council of the autonomous campus, which is composed of the President of the University
of the Philippines and of all instructors holding the rank of professor, associate professor
or assistant professor. Consequently, the University Council alone has the right to protest
against any unauthorized exercise of its power. Petitioners cannot impugn the directives
of the Board of Regents on the ground of academic freedom inasmuch as their rights as
university teachers remain unaffected.
In Cagayan Capitol College vs. NLRC, 189 SCRA 658 [1990], it was held that while DECS
regulations prescribe a maximum of three years probation period for teachers, the
termination of the three-year period does not result in the automatic permanent status for
the teacher. It must be conditioned on a showing that the teachers services during the
probationary period was satisfactory in accordance with the employers standards. The
prerogative of the school to provide standards for its teachers and to determine whether
or not these standards have been met is in accordance with academic freedom and
constitutional autonomy which give educational institutions the right to choose who should
teach.
InIsabelo, Jr. vs. Perpetual Help College of Rizal, Inc., 227 SCRA 591 [1993], it was held
that academic freedom was never meant to be an unabridged license; it is a privilege that
assumes a correlative duty to exercise it responsibly. Thus, where the students expulsion
was disproportionate to his having unit deficiencies in his CMT course, there is reason to
16
believe the petitioners claim that the schools action was strongly influenced by the
students participation in questioning PHCRs application for tuition fee increase.
(Broad Aspects of Academic Freedom, 313 SCRA 428, August 31, 1999)
3. DLSU VS. CA 541 SCRA 22 (2007)
THIRD DIVISION
[G.R. No. 127980. December 19, 2007.]
DE LA SALLE UNIVERSITY, INC., EMMANUEL SALES, RONALD HOLMES, JUDE
DELA TORRE, AMPARO RIO, CARMELITA QUEBENGCO, AGNES YUHICO and
JAMES YAP, petitioners, vs. THE COURT OF APPEALS, HON. WILFREDO D. REYES,
in his capacity as Presiding Judge of Branch 36, Regional Trial Court of Manila, THE
COMMISSION ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION
CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD
REVERENTE and ROBERTO VALDES, JR., respondents.
DECISION
REYES, R.T., J p:
NAGTATAGIS sa kasong ito ang karapatang mag-aral ng apat na estudyante na
nasangkot sa away ng dalawang fraternity at ang karapatang akademiko ng isang
pamantasan.
PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and
Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by the
De La Salle University (DLSU) and College of Saint Benilde (CSB) 1 Joint Discipline
Board because of their involvement in an offensive action causing injuries to petitioner
James Yap and three other student members of Domino Lux Fraternity. This is the
backdrop of the controversy before Us pitting private respondents' right to education visa-vis the University's right to academic freedom.
ASSAILED in this Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the
Rules of Court are the following: (1) Resolution of the Court of Appeals (CA) dated July
30, 1996 dismissing DLSU's petition for certiorari against respondent Judge and private
respondents Aguilar, Bungubung, Reverente, and Valdes, Jr.; 2 (2) Resolution of the CA
dated October 15, 1996 denying the motion for reconsideration; 3 (3) Order dated January
7, 1997 of the Regional Trial Court (RTC), Branch 36 Manila granting private respondent
Aguilar's motion to reiterate writ of preliminary injunction; 4 and (4) Resolution No. 18196 dated May 14, 1996 of the Commission on Higher Education (CHED) exonerating
private respondent Aguilar and lowering the penalties for the other private respondents
from expulsion to exclusion. 5
Factual Antecedents
Gleaned from the May 3, 1995 Decision of the DLSU-CSB Joint Discipline Board, two
violent incidents on March 29, 1995 involving private respondents occurred:
. . . From the testimonies of the complaining witnesses, it appears that one week prior to
March 29, 1995, Mr. James Yap was eating his dinner alone in Manang's Restaurant near
La Salle, when he overheard two men bad-mouthing and apparently angry at Domino
Lux. He ignored the comments of the two. When he arrived at his boarding house, he
mentioned the remarks to his two other brods while watching television. These two brods
had earlier finished eating their dinner at Manang's. Then, the three, together with four
other persons went back to Manang's and confronted the two who were still in the
17
restaurant. By admission of respondent Bungubung in his testimony, one of the two was
a member of the Tau Gamma Phi Fraternity. There was no rumble or physical violence
then.
After this incident, a meeting was conducted between the two heads of the fraternity
through the intercession of the Student Council. The Tau Gamma Phi Fraternity was
asking for an apology. "Kailangan ng apology" in the words of respondent Aguilar. But no
apology was made.
Then, 5 members of the Tau Gamma Phi Fraternity went to the tambayan of the Domino
Lux Fraternity in the campus. Among them were respondents Bungubung, Reverente and
Papio. They were looking for a person whose description matched James Yap. According
to them, this person supposedly "nambastos ng brod." As they could not find Mr. Yap,
one of them remarked "Paano ba iyan. Pasensiya na lang."
Came March 29, 1995 and the following events.
Ten minutes before his next class at 6:00 p.m., Mr. James Yap went out of the campus
using the Engineering Gate to buy candies across Taft Avenue. As he was about to recross Taft Avenue, he heard heavy footsteps at his back. Eight to ten guys were running
towards him. He panicked. He did not know what to do. Then, respondent Bungubung
punched him in the head with something heavy in his hands "parang knuckles."
Respondents Reverente and Lee were behind Yap, punching him. Respondents
Bungubung and Valdes who were in front of him, were also punching him. As he was
lying on the street, respondent Aguilar kicked him. People shouted; guards arrived; and
the group of attackers left.
Mr. Yap could not recognize the other members of the group who attacked him. With
respect to respondent Papio, Mr. Yap said "hindi ko nakita ang mukha niya, hindi ko nakita
sumuntok siya." What Mr. Yap saw was a long haired guy also running with the group.
Two guards escorted Mr. Yap inside the campus. At this point, Mr. Dennis Pascual was
at the Engineering Gate. Mr. Pascual accompanied Yap to the university clinic; reported
the incident to the Discipline Office; and informed his fraternity brods at their tambayan.
According to Mr. Pascual, their head of the Domino Lux Fraternity said: "Walang gagalaw.
Uwian na lang." DTAIaH
Mr. Ericson Cano, who was supposed to hitch a ride with Dennis Pascual, saw him under
the clock in Miguel Building. However, they did not proceed directly for home. With a
certain Michael Perez, they went towards the direction of Dagonoy Street because Mr.
Pascual was supposed to pick up a book for his friend from another friend who lives
somewhere in the area.
As they were along Dagonoy Street, and before they could pass the Kolehiyo ng Malate
Restaurant, Mr. Cano first saw several guys inside the restaurant. He said not to mind
them and just keep on walking. However, the group got out of the restaurant, among them
respondents Reverente, Lee and Valdes. Mr. Cano told Mr. Lee: "Ayaw namin ng gulo."
But, respondent Lee hit Mr. Cano without provocation. Respondent Reverente kicked Mr.
Pascual and respondent Lee also hit Mr. Pascual. Mr. Cano and Mr. Perez managed to
run from the mauling and they were chased by respondent Lee and two others.
Mr. Pascual was left behind. After respondent Reverente first kicked him, Mr. Pascual
was ganged-upon by the rest. He was able to run, but the group was able to catch up with
him. His shirt was torn and he was hit at the back of his head with a lead pipe. Respondent
Lee who was chasing Cano and Perez, then returned to Mr. Pascual.
18
Mr. Pascual identified respondents Reverente and Lee, as among those who hit him.
Although Mr. Pascual did not see respondent Valdes hit him, he identified respondent
Valdez (sic) as also one of the members of the group. HCTaAS
In fact, Mr. Cano saw respondent Valdes near Mr. Pascual. He was almost near the
corner of Leon Guinto and Estrada; while respondent Pascual who managed to run was
stopped at the end of Dagonoy along Leon Guinto. Respondent Valdes shouted: "Mga
putang-ina niyo." Respondent Reverente hit Mr. Pascual for the last time. Apparently
being satisfied with their handiwork, the group left. The victims, Cano, Perez and Pascual
proceeded to a friend's house and waited for almost two hours, or at around 8:00 in the
evening before they returned to the campus to have their wounds treated. Apparently,
there were three cars roaming the vicinity. 6
The mauling incidents were a result of a fraternity war. The victims, namely: petitioner
James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the
"Domino Lux Fraternity," while the alleged assailants, private respondents Alvin Aguilar,
James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of
"Tau Gamma Phi Fraternity," a rival fraternity.
The next day, March 30, 1995, petitioner Yap lodged a complaint 7 with the Discipline
Board of DLSU charging private respondents with "direct assault." Similar complaints 8
were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and private
respondents Valdes and Reverente. Thus, cases entitled "De La Salle University and
College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (ABPSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee (EDD/9462325),
Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-MGT/9251227)" were
docketed as Discipline Case No. 9495-3-25121.
The Director of the DLSU Discipline Office sent separate notices to private respondents
Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints and
requiring them to answer. Private respondents filed their respective answers. 9
As it appeared that students from DLSU and CSB 10 were involved in the mauling
incidents, a joint DLSU-CSB Discipline Board 11 was formed to investigate the incidents.
Thus, petitioner Board Chairman Emmanuel Sales sent notices of hearing 12 to private
respondents on April 12, 1995. Said notices uniformly stated as follows:
Please be informed that a joint and expanded Discipline Board had been constituted to
hear and deliberate the charge against you for violation of CHED Order No. 4 arising from
the written complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano.
You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at
9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give testimony and
present evidence in your behalf. You may be assisted by a lawyer when you give your
testimony or those of your witnesses.
On or before April 18, 1995, you are further directed to provide the Board, through the
Discipline Office, with a list of your witnesses as well as the sworn statement of their
proposed testimony.
Your failure to appear at the scheduled hearing or your failure to submit the list of
witnesses and the sworn statement of their proposed testimony will be considered a
waiver on your part to present evidence and as an admission of the principal act
complained of.
For your strict compliance. 13
19
During the proceedings before the Board on April 19 and 28, 1995, private respondents
interposed the common defense of alibi, summarized by the DLSU-CSB Joint Discipline
Board as follows:
First, in the case of respondent Bungubung, March 29, 1995 was one of the few instances
when he was picked-up by a driver, a certain Romeo S. Carillo. Most of the time,
respondent Bungubung goes home alone sans driver. But on this particular date,
respondent Bungubung said that his dad asked his permission to use the car and thus,
his dad instructed this driver Carillo to pick-up his son. Mr. Carillo is not a family driver,
but works from 8:00 a.m. to 5:00 p.m. for the Philippine Ports Authority where the elder
Bungubung is also employed.
Thus, attempting to corroborate the alibi of respondent Bungubung, Mr. Carillo said that
he arrived at La Salle at 4:56 p.m.; picked-up respondent at 5:02 p.m.; took the Roxas
Blvd. route towards respondent's house in BF Paraaque (on a Wednesday in Baclaran);
and arrived at the house at 6:15 p.m. Respondent Bungubung was dropped-off in his
house, and taking the same route back, Mr. Carillo arrived at the South Harbor at 6:55
p.m. the Philippine Ports Authority is located at the South Harbor. 14
xxx xxx xxx
Secondly, respondent Valdes said that he was with his friends at McDonald's Taft just
before 6:00 p.m. of March 29, 1995. He said that he left McDonald at 5:50 p.m. together
to get some medicine at the university clinic for his throat irritation. He said that he was
at the clinic at 5:52 p.m. and went back to McDonald, all within a span of 3 or even 4
minutes.
Two witnesses, a certain Sharon Sia and the girlfriend of respondent Valdes, a certain
Jorgette Aquino, attempted to corroborate Valdez' alibi. 15
xxx xxx xxx
Third, respondent Reverente told that (sic) the Board that he was at his home at 5:00 p.m.
of March 29, 1995. He said that he was given the responsibility to be the paymaster of
the construction workers who were doing some works in the apartment of his parents.
Although he had classes in the evening, the workers according to him would wait for him
sometimes up to 9:00 p.m. when he arrives from his classes. The workers get paid
everyday.
Respondent Reverente submitted an affidavit, unsigned by the workers listed there,
supposedly attesting to the fact that he paid the workers at the date and time in question.
16
xxx xxx xxx
Fourth, respondent Aguilar "solemnly sw[ore] that [he] left DLSU at 5:00 p.m. for Camp
Crame for a meeting with some of the officers that we were preparing." 17
On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution 18 finding
private respondents guilty. They were meted the supreme penalty of automatic expulsion,
19 pursuant to CHED Order No. 4. 20 The dispositive part of the resolution reads:
WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN
AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN
20
LEE (EDD/94623250) and RICHARD V. REVERENTE (AB-MGT/9153837) guilty of

having violated CHED Order No. 4 and thereby orders their automatic expulsion.
In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board acquits him
of the charge.
SO ORDERED. 21
Private respondents separately moved for reconsideration 22 before the Office of the
Senior Vice-President for Internal Operations of DLSU. The motions were all denied in a
Letter-Resolution 23 dated June 1, 1995.
On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, against
petitioners a petition for certiorari and injunction under Rule 65 of the Rules of Court with
prayer for temporary restraining order (TRO) and/or writ of preliminary injunction. It was
docketed as Civil Case No. 95-74122 and assigned to respondent Judge of Branch 36.
The petition essentially sought to annul the May 3, 1995 Resolution of the DLSU-CSB
Joint Discipline Board and the June 1, 1995 Letter-Resolution of the Office of the Senior
Vice-President for Internal Affairs.
The following day, June 6, 1995, respondent Judge issued a TRO 24 directing DLSU, its
subordinates, agents, representatives and/or other persons acting for and in its behalf to
refrain and desist from implementing Resolution dated May 3, 1995 and Letter-Resolution
dated June 1, 1995 and to immediately desist from barring the enrollment of Aguilar for
the second term of school year (SY) 1995.
Subsequently, private respondent Aguilar filed an ex parte motion to amend his petition
to correct an allegation in paragraph 3.21 25 of his original petition. Respondent Judge
amended the TRO 26 to conform to the correction made in the amended petition. 27
On June 7, 1995, the CHED directed DLSU to furnish it with copies of the case records
of Discipline Case No. 9495-3-25121, 28 in view of the authority granted to it under
Section 77 (c) of the Manual of Regulations for Private Schools (MRPS).
On the other hand, private respondents Bungubung and Reverente, and later, Valdes,
filed petitions-in-intervention 29 in Civil Case No. 95-74122. Respondent Judge also
issued corresponding temporary restraining orders to compel petitioner DLSU to admit
said private respondents.
On June 19, 1995, petitioner Sales filed a motion to dismiss 30 in behalf of all petitioners,
except James Yap. On June 20, 1995, petitioners filed a supplemental motion to dismiss
31 the petitions-in-intervention.
On September 20, 1995, respondent Judge issued an Order 32 denying petitioners'
(respondents there) motion to dismiss and its supplement, and granted private
respondents' (petitioners there) prayer for a writ of preliminary injunction. The pertinent
part of the Order reads:
For this purpose, respondent, its agents, representatives or any and all other persons
acting for and in its behalf is/are restrained and enjoined from
1. Implementing and enforcing the Resolution dated May 3, 1995 ordering the automatic
expulsion of petitioner and the petitioners-in-intervention from the De La Salle University
and the letter-resolution dated June 1, 1995, affirming the Resolution dated May 3, 1995;
and
21
2. Barring the enrolment of petitioner and petitioners-in-intervention in the courses offered

at respondent De La Salle University and to immediately allow them to enroll and
complete their respective courses/degrees until their graduation thereat in accordance
with the standards set by the latter.
WHEREFORE, the ancillary remedy prayed for is granted. Respondent, its agents,
representatives, or any and all persons acting for and its behalf are hereby restrained and
enjoyed from:
expulsion of petitioner and petitioners-in-intervention and the Letter-Resolution dated
June 1, 1995; and
2. Barring the enrollment of petitioner and petitioners-in-intervention in the courses
offered at respondent (De La Salle University) and to forthwith allow all said petitioner
and petitioners-in-intervention to enroll and complete their respective courses/degrees
until their graduation thereat.
The Writ of Preliminary Injunction shall take effect upon petitioner and petitioners-inintervention posting an injunctive bond in the amount of P15,000.00 executed in favor of
respondent to the effect that petitioner and petitioners-in-intervention will pay to
respondent all damages that the latter may suffer by reason of the injunction if the Court
will finally decide that petitioner and petitioners-in-intervention are not entitled thereto.
The motion to dismiss and the supplement thereto is denied for lack of merit.
Respondents are directed to file their Answer to the Petition not later than fifteen (15)
days from receipt thereof.
SO ORDERED. 33
Despite the said order, private respondent Aguilar was refused enrollment by petitioner
DLSU when he attempted to enroll on September 22, 1995 for the second term of SY
1995-1996. Thus, on September 25, 1995, Aguilar filed with respondent Judge an urgent
motion to cite petitioners (respondents there) in contempt of court. 34 Aguilar also prayed
that petitioners be compelled to enroll him at DLSU in accordance with respondent
Judge's Order dated September 20, 1995. On September 25, 1995, respondent Judge
issued 35 a writ of preliminary injunction, the relevant portion of which reads:
IT IS HEREBY ORDERED by the undersigned of the REGIONAL TRIAL COURT OF
MANILA that until further orders, you the said DE LA SALLE University as well as your
subordinates, agents, representatives, employees and any other person assisting or
acting for or on your behalf, to immediately desist from implementing the Resolution dated
May 3, 1995 ordering the automatic expulsion of petitioner and the intervenors in DLSU,
and the letter-resolution dated June 1, 1995 affirming the said Resolution of May 3, 1995
and to immediately desist from barring the enrolment of petitioner and intervenors in the
courses offered at DLSU and to allow them to enroll and complete their degree courses
until their graduation from said school. 36
On October 16, 1995, petitioner DLSU filed with the CA a petition for certiorari 37 (CAG.R. SP No. 38719) with prayer for a TRO and/or writ of preliminary injunction to enjoin
the enforcement of respondent Judge's September 20, 1995 Order and writ of preliminary
injunction dated September 25, 1995.
On April 12, 1996, the CA granted petitioners' prayer for preliminary injunction.
On May 14, 1996, the CHED issued its questioned Resolution No. 181-96, summarily
disapproving the penalty of expulsion for all private respondents. As for Aguilar, he was
22
to be reinstated, while other private respondents were to be excluded. 38 The Resolution

states:
RESOLUTION 181-96
RESOLVED THAT THE REQUEST OF THE DE LA SALLE UNIVERSITY (DLSU), TAFT
AVENUE, MANILA FOR THE APPROVAL OF THE PENALTY OF EXPULSION
IMPOSED ON MR. ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, ROBERT R.
VALDES, JR., ALVIN LEE AND RICHARD V. REVERENTE BE, AS IT IS HEREBY IS,
DISAPPROVED.
RESOLVED FURTHER, THAT THE COMMISSION DIRECT THE DLSU TO
IMMEDIATELY EFFECT THE REINSTATEMENT OF MR. AGUILAR AND THE
LOWERING OF THE PENALTY OF MR. JAMES PAUL BUNGUBUNG, MR. ROBER R.
VALDEZ, JR., (sic) MR. ALVIN LEE AND MR. RICHARD V. REVERENTE FROM
EXPULSION TO EXCLUSION. 39
Despite the directive of CHED, petitioner DLSU again prevented private respondent
Aguilar from enrolling and/or attending his classes, prompting his lawyer to write several
demand letters 40 to petitioner DLSU. In view of the refusal of petitioner DLSU to enroll
private respondent Aguilar, CHED wrote a letter dated June 26, 1996 addressed to
petitioner Quebengco requesting that private respondent Aguilar be allowed to continue
attending his classes pending the resolution of its motion for reconsideration of Resolution
No. 181-96. However, petitioner Quebengco refused to do so, prompting CHED to
promulgate an Order dated September 23, 1996 which states:
Acting on the above-mentioned request of Mr. Aguilar through counsel enjoining De La
Salle University (DLSU) to comply with CHED Resolution 181-96 (Re: Expulsion Case of
Alvin Aguilar, et al. v. DLSU) directing DLSU to reinstate Mr. Aguilar and finding the urgent
request as meritorious, there being no other plain and speedy remedy available,
considering the set deadline for enrollment this current TRIMESTER, and in order to
prevent further prejudice to his rights as a student of the institution, DLSU, through the
proper school authorities, is hereby directed to allow Mr. Alvin Aguilar to provisionally
enroll, pending the Commission's Resolution of the instant Motion for Reconsideration
filed by DLSU.
SO ORDERED. 41
Notwithstanding the said directive, petitioner DLSU, through petitioner Quebengco, still
refused to allow private respondent Aguilar to enroll. Thus, private respondent Aguilar's
counsel wrote another demand letter to petitioner DLSU. 42
Meanwhile, on June 3, 1996, private respondent Aguilar, using CHED Resolution No.
181-96, filed a motion to dismiss 43 in the CA, arguing that CHED Resolution No. 181-96
rendered the CA case moot and academic.
On July 30, 1996, the CA issued its questioned resolution granting the motion to dismiss
of private respondent Aguilar, disposing thus:
THE FOREGOING CONSIDERED, dismissal of herein petition is hereby directed.
SO ORDERED. 44
On October 15, 1996, the CA issued its resolution denying petitioners' motion for
reconsideration, as follows:
23
It is obvious to Us that CHED Resolution No. 181-96 is immediately executory in

character, the pendency of a Motion for Reconsideration notwithstanding.
After considering the Opposition and for lack of merit, the Motion for Reconsideration is
hereby denied.
SO ORDERED. 45
On October 28, 1996, petitioners requested transfer of case records to the Department
of Education, Culture and Sports (DECS) from the CHED. 46 Petitioners claimed that it
is the DECS, not CHED, which has jurisdiction over expulsion cases, thus, necessitating
the transfer of the case records of Discipline Case No. 9495-3-25121 to the DECS.
On November 4, 1996, in view of the dismissal of the petition for certiorari in CA-G.R. SP
No. 38719 and the automatic lifting of the writ of preliminary injunction, private respondent
Aguilar filed an urgent motion to reiterate writ of preliminary injunction dated September
25, 1995 before respondent RTC Judge of Manila. 47
On January 7, 1997, respondent Judge issued its questioned order granting private
respondent Aguilar's urgent motion to reiterate preliminary injunction. The pertinent
portion of the order reads:
In light of the foregoing, petitioner Aguilar's urgent motion to reiterate writ of preliminary
injunction is hereby granted, and respondents' motion to dismiss is denied.
The writ of preliminary injunction dated September 25, 1995 is declared to be in force and
effect.
Let a copy of this Order and the writ be served personally by the Court's sheriff upon the
respondents at petitioners' expense.
SO ORDERED. 48
Accordingly, private respondent Aguilar was allowed to conditionally enroll in petitioner
DLSU, subject to the continued effectivity of the writ of preliminary injunction dated
September 25, 1995 and to the outcome of Civil Case No. 95-74122.
On February 17, 1997, petitioners filed the instant petition.
On June 15, 1998, We issued a TRO 49 as prayed for by the urgent motion for the
issuance of a TRO 50 dated June 4, 1998 of petitioners, and enjoined respondent Judge
from implementing the writ of preliminary injunction dated September 25, 1995 issued in
Civil Case No. 95-74122, effective immediately and until further orders from this Court.
On March 27, 2006, private respondent Aguilar filed his manifestation 51 stating that he
has long completed his course at petitioner DLSU. He finished and passed all his enrolled
subjects for the second trimester of 1997-1998, as indicated in his transcript of records
52 issued by DLSU. However, despite having completed all the academic requirements
for his course, DLSU has not issued a certificate of completion/graduation in his favor.
Issues
We are tasked to resolve the following issues:
1. Whether it is the DECS or the CHED which has legal authority to review decisions of
institutions of higher learning that impose disciplinary action on their students found
violating disciplinary rules.
24
2. Whether or not petitioner DLSU is within its rights in expelling private respondents.
2.a Were private respondents accorded due process of law?
2.b Can petitioner DLSU invoke its right to academic freedom?
2.c Was the guilt of private respondents proven by substantial evidence?
3. Whether or not the penalty imposed by DLSU on private respondents is proportionate
to their misdeed.
Our Ruling
Prefatorily, there is merit in the observation of petitioners 53 that while CHED Resolution
No. 181-96 disapproved the expulsion of other private respondents, it nonetheless
authorized their exclusion from petitioner DLSU. However, because of the dismissal of
the CA case, petitioner DLSU is now faced with the spectacle of having two different
directives from the CHED and the respondent Judge CHED ordering the exclusion of
private respondents Bungubung, Reverente, and Valdes, Jr., and the Judge ordering
petitioner DLSU to allow them to enroll and complete their degree courses until their
graduation.
This is the reason We opt to decide the whole case on the merits, brushing aside
technicalities, in order to settle the substantial issues involved. This Court has the power
to take cognizance of the petition at bar due to compelling reasons, and the nature and
importance of the issues raised warrant the immediate exercise of Our jurisdiction. 54
This is in consonance with our case law now accorded near-religious reverence that rules
of procedure are but tools designed to facilitate the attainment of justice, such that when
its rigid application tends to frustrate rather than promote substantial justice, this Court
has the duty to suspend their operation. 55
I. It is the CHED, not DECS, which has
the power of supervision and review
over disciplinary cases decided by
institutions of higher learning.
Ang CHED, hindi ang DECS, ang may kapangyarihan ng pagsubaybay at pagrepaso sa
mga desisyong pandisiplina ng mga institusyon ng mas mataas na pag-aaral.
Petitioners posit that the jurisdiction and duty to review student expulsion cases, even
those involving students in secondary and tertiary levels, is vested in the DECS not in the
CHED. In support of their stance, petitioners cite Sections 4, 56 15 (2) & (3), 57 54, 58 57
(3) 59 and 70 60 of Batas Pambansa (B.P.) Blg. 232, otherwise known as the "Education
Act of 1982."
According to them, Republic Act (R.A.) No. 7722 did not transfer to the CHED the DECS'
power of supervision/review over expulsion cases involving institutions of higher learning.
They say that unlike B.P. Blg. 232, R.A. No. 7722 makes no reference to the right and
duty of learning institutions to develop moral character and instill discipline among its
students. The clear concern of R.A. No. 7722 in the creation of the CHED was academic,
i.e., the formulation, recommendation, setting, and development of academic plans,
programs and standards for institutions of higher learning. The enumeration of CHED's
powers and functions under Section 8 does not include supervisory/review powers in
student disciplinary cases. The reference in Section 3 to CHED's "coverage" of institutions
of higher education is limited to the powers and functions specified in Section 8. The
Bureau of Higher Education, which the CHED has replaced and whose functions and
responsibilities it has taken over, never had any authority over student disciplinary cases.
25
We cannot agree.
On May 18, 1994, Congress approved R.A. No. 7722, otherwise known as "An Act
Creating the Commission on Higher Education, Appropriating Funds Thereof and for
other purposes."
Section 3 of the said law, which paved the way for the creation of the CHED, provides:
Section 3. Creation of the Commission on Higher Education. In pursuance of the
abovementioned policies, the Commission on Higher Education is hereby created,
hereinafter referred to as Commission.
The Commission shall be independent and separate from the Department of Education,
Culture and Sports (DECS) and attached to the office of the President for administrative
purposes only. Its coverage shall be both public and private institutions of higher
education as well as degree-granting programs in all post secondary educational
institutions, public and private.
The powers and functions of the CHED are enumerated in Section 8 of R.A. No. 7722.
They include the following:
Sec. 8. Powers and functions of the Commission. The Commission shall have the
following powers and functions:
xxx xxx xxx
n) promulgate such rules and regulations and exercise such other powers and functions
as may be necessary to carry out effectively the purpose and objectives of this Act; and
o) perform such other functions as may be necessary for its effective operations and for
the continued enhancement of growth or development of higher education.
Clearly, there is no merit in the contention of petitioners that R.A. No. 7722 did not transfer
to the CHED the DECS' power of supervision/review over expulsion cases involving
First, the foregoing provisions are all-embracing. They make no reservations of powers
to the DECS insofar as institutions of higher learning are concerned. They show that the
authority and supervision over all public and private institutions of higher education, as
well as degree-granting programs in all post-secondary educational institutions, public
and private, belong to the CHED, not the DECS.
Second, to rule that it is the DECS which has authority to decide disciplinary cases
involving students on the tertiary level would render nugatory the coverage of the CHED,
which is "both public and private institutions of higher education as well as degree
granting programs in all post secondary educational institutions, public and private." That
would be absurd.
It is of public knowledge that petitioner DLSU is a private educational institution which
offers tertiary degree programs. Hence, it is under the CHED authority.
Third, the policy of R.A. No. 7722 61 is not only the protection, fostering and promotion
of the right of all citizens to affordable quality education at all levels and the taking of
appropriate steps to ensure that education shall be accessible to all. The law is likewise
concerned with ensuring and protecting academic freedom and with promoting its
exercise and observance for the continued intellectual growth of students, the
26
advancement of learning and research, the development of responsible and effective

leadership, the education of high-level and middle-level professionals, and the enrichment
of our historical and cultural heritage.
It is thus safe to assume that when Congress passed R.A. No. 7722, its members were
aware that disciplinary cases involving students on the tertiary level would continue to
arise in the future, which would call for the invocation and exercise of institutions of higher
learning of their right to academic freedom.
Fourth, petitioner DLSU cited no authority in its bare claim that the Bureau of Higher
Education, which CHED replaced, never had authority over student disciplinary cases. In
fact, the responsibilities of other government entities having functions similar to those of
the CHEDwere transferred to the CHED. 6 2
Section 77 of the MRPS 63 on the process of review in student discipline cases should
therefore be read in conjunction with the provisions of R.A. No. 7722.
Fifth, Section 18 of R.A. No. 7722 is very clear in stating that "[j]urisdiction over DECSsupervised or chartered state-supported post-secondary degree-granting vocational and
tertiary institutions shall be transferred to the Commission [On Higher Education]." This
provision does not limit or distinguish that what is being transferred to the CHED is merely
the formulation, recommendation, setting and development of academic plans, programs
and standards for institutions of higher learning, as what petitioners would have us believe
as the only concerns of R.A. No. 7722. Ubi lex non distinguit nec nos distinguere
debemus: Where the law does not distinguish, neither should we.
To Our mind, this provision, if not an explicit grant of jurisdiction to the CHED, necessarily
includes the transfer to the CHED of any jurisdiction which the DECS might have
possessed by virtue of B.P. Blg. 232 or any other law or rule for that matter.
IIa. Private respondents were accorded
due process of law.
Ang mga private respondents ay nabigyan ng tamang proseso ng batas.
The Due Process Clause in Article III, Section 1 of the Constitution embodies a system
of rights based on moral principles so deeply imbedded in the traditions and feelings of
our people as to be deemed fundamental to a civilized society as conceived by our entire
history. 64 The constitutional behest that no person shall be deprived of life, liberty or
property without due process of law is solemn and inflexible. 65
In administrative cases, such as investigations of students found violating school
discipline, "[t]here are withal minimum standards which must be met before to satisfy the
demands of procedural due process and these are: that (1) the students must be informed
in writing of the nature and cause of any accusation against them; (2) they shall have the
right to answer the charges against them and with the assistance if counsel, if desired;
(3) they shall be informed of the evidence against them; (4) they shall have the right to
adduce evidence in their own behalf; and (5) the evidence must be duly considered by
the investigating committee or official designated by the school authorities to hear and
decide the case." 66
Where a party was afforded an opportunity to participate in the proceedings but failed to
do so, he cannot complain of deprivation of due process. 67 Notice and hearing is the
bulwark of administrative due process, the right to which is among the primary rights that
must be respected even in administrative proceedings. 68 The essence of due process
is simply an opportunity to be heard, or as applied to administrative proceedings, an
opportunity to explain one's side or an opportunity to seek reconsideration of the action
or ruling complained of. 69 So long as the party is given the opportunity to advocate her
27
cause or defend her interest in due course, it cannot be said that there was denial of due
process. 70
A formal trial-type hearing is not, at all times and in all instances, essential to due process
it is enough that the parties are given a fair and reasonable opportunity to explain their
respective sides of the controversy and to present supporting evidence on which a fair
decision can be based. 71 "To be heard" does not only mean presentation of testimonial
evidence in court one may also be heard through pleadings and where the opportunity
to be heard through pleadings is accorded, there is no denial of due process. 72
Private respondents were duly informed in writing of the charges against them by the
DLSU-CSB Joint Discipline Board through petitioner Sales. They were given the
opportunity to answer the charges against them as they, in fact, submitted their respective
answers. They were also informed of the evidence presented against them as they
attended all the hearings before the Board. Moreover, private respondents were given the
right to adduce evidence on their behalf and they did. Lastly, the Discipline Board
considered all the pieces of evidence submitted to it by all the parties before rendering its
resolution in Discipline Case No. 9495-3-25121.
Private respondents cannot claim that they were denied due process when they were not
allowed to cross-examine the witnesses against them. This argument was already
rejected in Guzman v. National University 73 where this Court held that ". . . the imposition
of disciplinary sanctions requires observance of procedural due process. And it bears
stressing that due process in disciplinary cases involving students does not entail
proceedings and hearings similar to those prescribed for actions and proceedings in
courts of justice. The proceedings in student discipline cases may be summary; and cross
examination is not, . . . an essential part thereof."
IIb. Petitioner DLSU, as an institution of
higher learning, possesses academic
freedom which includes determination
of who to admit for study.
Ang petitioner DLSU, bilang institusyon ng mas mataas na pag-aaral, ay nagtataglay ng
kalayaang akademiko na sakop ang karapatang pumili ng mga mag-aaral dito.
Section 5 (2), Article XIV of the Constitution guaranties all institutions of higher learning
academic freedom. This institutional academic freedom includes the right of the school or
college to decide for itself, its aims and objectives, and how best to attain them free from
outside coercion or interference save possibly when the overriding public interest calls for
some restraint. 74 According to present jurisprudence, academic freedom encompasses
the independence of an academic institution to determine for itself (1) who may teach, (2)
what may be taught, (3) how it shall teach, and (4) who may be admitted to study. 75
It cannot be gainsaid that "the school has an interest in teaching the student discipline, a
necessary, if not indispensable, value in any field of learning. By instilling discipline, the
school teaches discipline. Accordingly, the right to discipline the student likewise finds
basis in the freedom "what to teach." 76 Indeed, while it is categorically stated under the
Education Act of 1982 that students have a right "to freely choose their field of study,
subject to existing curricula and to continue their course therein up to graduation," 77
such right is subject to the established academic and disciplinary standards laid down by
the academic institution. Petitioner DLSU, therefore, can very well exercise its academic
freedom, which includes its free choice of students for admission to its school.
IIc. The guilt of private respondents
Bungubung, Reverente and Valdes,
Jr. was proven by substantial evidence.
28
Ang pagkakasala ng private respondents na sina Bungubung, Reverente at Valdes, Jr.

ay napatunayan ng ebidensiyang substansyal.
As has been stated earlier, private respondents interposed the common defense of alibi.
However, in order that alibi may succeed as a defense, "the accused must establish by
clear and convincing evidence (a) his presence at another place at the time of the
perpetration of the offense and (b) the physical impossibility of his presence at the scene
of the crime." 78
On the other hand, the defense of alibi may not be successfully invoked where the identity
of the assailant has been established by witnesses. 79 Positive identification of accused
where categorical and consistent, without any showing of ill motive on the part of the
eyewitness testifying, should prevail over the alibi and denial of appellants whose
testimonies are not substantiated by clear and convincing evidence. 80 Well-settled is the
rule that denial and alibi, being weak defenses, cannot overcome the positive testimonies
of the offended parties. 81
Courts reject alibi when there are credible eyewitnesses to the crime who can positively
identify the accused. 82 Alibi is an inherently weak defense and courts must receive it
with caution because one can easily fabricate an alibi. 83 Jurisprudence holds that denial,
like alibi, is inherently weak and crumbles in light of positive declarations of truthful
witnesses who testified on affirmative matters that accused were at the scene of the crime
and were the victim's assailants. As between categorical testimonies that ring of truth on
one hand and a bare denial on the other, the former must prevail. 84 Alibi is the weakest
of all defenses for it is easy to fabricate and difficult to disprove, and it is for this reason
that it cannot prevail over the positive identification of accused by the witnesses. 85
The required proof in administrative cases, such as in student discipline cases, is neither
proof beyond reasonable doubt nor preponderance of evidence but only substantial
evidence. According to Ang Tibay v. Court of Industrial Relations, 86 it means "such
reasonable evidence as a reasonable mind might accept as adequate to support a
conclusion."
Viewed from the foregoing, We reject the alibi of private respondents Bungubung, Valdes
Jr., and Reverente. They were unable to show convincingly that they were not at the
scene of the crime on March 29, 1995 and that it was impossible for them to have been
there. Moreover, their alibi cannot prevail over their positive identification by the victims.
We hark back to this Court's pronouncement affirming the expulsion of several students
found guilty of hazing:
No one can be so myopic as to doubt that the immediate reinstatement of respondent
students who have been investigated and found guilty by the Disciplinary Board to have
violated petitioner university's disciplinary rules and standards will certainly undermine
the authority of the administration of the school. This we would be most loathe to do.
More importantly, it will seriously impair petitioner university's academic freedom which
has been enshrined in the 1935, 1973 and the present 1987 Constitution. 87
Certainly, private respondents Bungubung, Reverente and Valdes, Jr. do not deserve to
claim a venerable institution as their own, for they may foreseeably cast a malevolent
influence on the students currently enrolled, as well as those who come after them. 88 It
must be borne in mind that universities are established, not merely to develop the intellect
and skills of the studentry, but to inculcate lofty values, ideals and attitudes; nay, the
development, or flowering if you will, of the total man. 89
29
As for private respondent Aguilar, however, We are inclined to give credence to his alibi
that he was at Camp Crame in Quezon City at the time of the incident in question on
March 29, 1995. This claim was amply corroborated by the certification that he submitted
before the DLSU-CSB Joint Discipline Board, to wit:
CERTIFICATION
TO WHOM THIS MAY CONCERN:
We, the undersigned, hereby declare and affirm by way of this Certification that sometime
on March 29, 1995, at about and between 4:30 P.M. and 5:30 P.M., we were together
with Alvin A. Aguilar, at Kiangan Hall, inside Camp Crame, Quezon City, meeting in
connection with an affair of our class known as Class 7, Batch 89 of the Philippine
Constabulary discussing on the proposed sponsorship of TAU GAMMA PHI from said
Batch '89 affair.
That the meeting was terminated at about 6:30 P.M. that evening and Alvin Aguilar had
asked our permission to leave and we saw him leave Camp Crame, in his car with the
driver.
April 18, 1995, Camp Crame, Quezon City. 90
The said certification was duly signed by PO3 Nicanor R. Faustino (Anti-Organized Crime
CIC, NCR), PO3 Alejandro D. Deluviar (ODITRM, Camp Crame, Quezon City), PO2
Severino C. Filler (TNTSC, Camp Crame, Quezon City), and PO3 Ireneo M. Desesto
(Supply Center, PNPLSS). The rule is that alibi assumes significance or strength when it
is amply corroborated by credible and disinterested witnesses. 91 It is true that alibi is a
weak defense which an accused can easily fabricate to escape criminal liability. But
where the prosecution evidence is weak, and betrays lack of credibility as to the
identification of defendant, alibi assumes commensurate strength. This is but consistent
with the presumption of innocence in favor of accused. 92
Alibi is not always undeserving of credit, for there are times when accused has no other
possible defense for what could really be the truth as to his whereabouts at the crucial
time, and such defense may, in fact, tilt the scales of justice in his favor. 93
III. The penalty of expulsion imposed by DLSU
on private respondents is disproportionate
to their misdeed.
Ang parusang expulsion na ipinataw ng DLSU sa private respondents ay hindi angkop sa
kanilang pagkakasala.
It is true that schools have the power to instill discipline in their students as subsumed in
their academic freedom and that "the establishment of rules governing university-student
relations, particularly those pertaining to student discipline, may be regarded as vital, not
merely to the smooth and efficient operation of the institution, but to its very survival." 94
This power, however, does not give them the untrammeled discretion to impose a penalty
which is not commensurate with the gravity of the misdeed. If the concept of
proportionality between the offense committed and the sanction imposed is not followed,
an element of arbitrariness intrudes. That would give rise to a due process question. 95
We agree with respondent CHED that under the circumstances, the penalty of expulsion
is grossly disproportionate to the gravity of the acts committed by private respondents
Bungubung, Reverente, and Valdes, Jr. Each of the two mauling incidents lasted only for
few seconds and the victims did not suffer any serious injury. Disciplinary measures
especially where they involve suspension, dismissal or expulsion, cut significantly into the
30
future of a student. They attach to him for life and become a mortgage of his future, hardly
redeemable in certain cases. Officials of colleges and universities must be anxious to
protect it, conscious of the fact that, appropriately construed, a disciplinary action should
be treated as an educational tool rather than a punitive measure. 96
Accordingly, We affirm the penalty of exclusion 97 only, not expulsion, 98 imposed on
them by the CHED. As such, pursuant to Section 77 (b) of the MRPS, petitioner DLSU
may exclude or drop the names of the said private respondents from its rolls for being
undesirable, and transfer credentials immediately issued.
WHEREFORE, the petition is PARTIALLY GRANTED. The Court of Appeals Resolutions
dated July 30, 1996 and dated October 15, 1996, and Regional Trial Court of Manila,
Branch 36, Order dated January 7, 1997 are ANNULLED AND SET ASIDE, while CHED
Resolution 181-96 dated May 14, 1996 is AFFIRMED.
Petitioner DLSU is ordered to issue a certificate of completion/graduation in favor of
private respondent Aguilar. On the other hand, it may exclude or drop the names of private
respondents Bungubung, Reverente, and Valdes, Jr. from its rolls, and their transfer
credentials immediately issued.
SO ORDERED.
Ynares-Santiago, Quisumbing,* Chico-Nazario and Velasco, Jr.,** JJ., concur.
||| (De La Salle University, Inc. v. Court of Appeals, G.R. No. 127980, [December 19,
2007], 565 PHIL 330-365)
4. CSC VS. SOJOR 554 SCRA 160 (2008)
EN BANC
[G.R. No. 168766. May 22, 2008.]
THE CIVIL SERVICE COMMISSION, petitioner, vs. HENRY A. SOJOR, respondent.
DECISION
REYES, R.T., J p:
IS the president of a state university outside the reach of the disciplinary jurisdiction
constitutionally granted to the Civil Service Commission (CSC) over all civil servants and
officials? DETACa
Does the assumption by the CSC of jurisdiction over a president of a state university
violate academic freedom?
The twin questions, among others, are posed in this petition for review on certiorari of the
Decision 1 of the Court of Appeals (CA) which annulled two (2) CSC Resolutions 2 against
respondent Henry A. Sojor.
The Facts
The uncontroverted facts that led to the controversy, as found by the CSC and the CA,
are as follows:
On August 1, 1991, respondent Sojor was appointed by then President Corazon Aquino
as president of the Central Visayas Polytechnic College (CVPC) in Dumaguete City. In
June 1997, Republic Act (R.A.) No. 8292, or the "Higher Education Modernization Act of
31
1997", was enacted. This law mandated that a Board of Trustees (BOT) be formed to act
as the governing body in state colleges. The BOT of CVPC appointed respondent as
president, with a four-year term beginning September 1998 up to September 2002. 3
Upon the expiration of his first term of office in 2002, he was appointed president of the
institution for a second four-year term, expiring on September 24, 2006. 4
On June 25, 2004, CVPC was converted into the Negros Oriental State University
(NORSU). 5 A Board of Regents (BOR) succeeded the BOT as its governing body.
Meanwhile, three (3) separate administrative cases against respondent were filed by
CVPC faculty members before the CSC Regional Office (CSC-RO) No. VII in Cebu City,
to wit:
1. ADMC DC No. 02-20 (A) Complaint for dishonesty, grave misconduct and conduct
prejudicial to the best interest of the service filed on June 26, 2002 by Jose Rene A. Cepe
and Narciso P. Ragay. It was alleged that respondent approved the release of salary
differentials despite the absence of the required Plantilla and Salary Adjustment Form
and valid appointments. 6 HCSDca
2. ADM DC No. 02-20 Complaint for dishonesty, misconduct and falsification of official
documents filed on July 10, 2002 by Jocelyn Juanon and Carolina Fe Santos. The
complaint averred that respondent maliciously allowed the antedating and falsification of
the reclassification differential payroll, to the prejudice of instructors and professors who
have pending request for adjustment of their academic ranks. 7
3. ADM DC No. 02-21 Complaint for nepotism filed on August 15, 2002 by Rose Marie
Palomar, a former part-time instructor of CVPC. It was alleged that respondent appointed
his half-sister, Estrellas Sojor-Managuilas, as casual clerk, in violation of the provisions
against nepotism under the Administrative Code. 8
Before filing his counter-affidavits, respondent moved to dismiss the first two complaints
on grounds of lack of jurisdiction, bar by prior judgment and forum shopping.
He claimed that the CSC had no jurisdiction over him as a presidential appointee. Being
part of the non-competitive or unclassified service of the government, he was exclusively
under the disciplinary jurisdiction of the Office of the President (OP). He argued that CSC
had no authority to entertain, investigate and resolve charges against him; that the Civil
Service Law contained no provisions on the investigation, discipline, and removal of
presidential appointees. He also pointed out that the subject matter of the complaints had
already been resolved by the Office of the Ombudsman. 9
Finding no sufficient basis to sustain respondent's arguments, the CSC-RO denied his
motion to dismiss in its Resolution dated September 4, 2002. 10 His motion for
reconsideration 11 was likewise denied. Thus, respondent was formally charged with
three administrative cases, namely: (1) Dishonesty, Misconduct, and Falsification of
Official Document; (2) Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best
Interest of the Service; and (3) Nepotism. 12 ADaSEH
Respondent appealed the actions of the regional office to the Commission proper (CSC),
raising the same arguments in his motion to dismiss. 13 He argued that since the BOT is
headed by the Committee on Higher Education Chairperson who was under the OP, the
BOT was also under the OP. Since the president of CVPC was appointed by the BOT,
then he was a presidential appointee. On the matter of the jurisdiction granted to CSC by
virtue of Presidential Decree (P.D.) No. 807 14 enacted in October 1975, respondent
contended that this was superseded by the provisions of R.A. No. 8292, 15 a later law
which granted to the BOT the power to remove university officials.
32
CSC Disposition
In a Resolution dated March 30, 2004, 16 the CSC dismissed respondent's appeal and
authorized its regional office to proceed with the investigation. He was also preventively
suspended for 90 days. The fallo of the said resolution states:
WHEREFORE, the appeal of Henry A. Sojor, President of Central Visayas Polytechnic
College, is hereby DISMISSED. The Civil Service Commission Regional Office No. VII,
Cebu City, is authorized to proceed with the formal investigation of the cases against
Sojor and submit the investigation reports to the Commission within one hundred five
(105) days from receipt hereof. Finally, Sojor is preventively suspended for ninety (90)
days. 17 cEaCAH
In decreeing that it had jurisdiction over the disciplinary case against respondent, the CSC
opined that his claim that he was a presidential appointee had no basis in fact or in law.
CSC maintained that it had concurrent jurisdiction with the BOT of the CVPC. We quote:
His appointment dated September 23, 2002 was signed by then Commission on Higher
Education (CHED) Chairman Ester A. Garcia. Moreover, the said appointment expressly
stated that it was approved and adopted by the Central Visayas Polytechnic College
Board of Trustees on August 13, 2002 in accordance with Section 6 of Republic Act No.
8292 (Higher education Modernization Act of 1997), which explicitly provides that, "He
(the president of a state college) shall be appointed by the Board of Regents/Trustees,
upon recommendation of a duly constituted search committee." Since the President of a
state college is appointed by the Board of Regents/Trustees of the college concerned, it
is crystal clear that he is not a presidential appointee. Therefore, it is without doubt that
Sojor, being the President of a state college (Central Visayas Polytechnic College), is
within the disciplinary jurisdiction of the Commission.
The allegation of appellant Sojor that the Commission is bereft of disciplinary jurisdiction
over him since the same is exclusively lodged in the CVPC Board of Trustees, being the
appointing authority, cannot be considered. The Commission and the CVPC Board of
Trustees have concurrent jurisdiction over cases against officials and employees of the
said agency. Since the three (3) complaints against Sojor were filed with the Commission
and not with the CVPC, then the former already acquired disciplinary jurisdiction over the
appellant to the exclusion of the latter agency. 18 (Emphasis supplied) cHDAIS
The CSC categorized respondent as a third level official, as defined under its rules, who
are under the jurisdiction of the Commission proper. Nevertheless, it adopted the formal
charges issued by its regional office and ordered it to proceed with the investigation:
Pursuant to the Uniform Rules on Administrative Cases in the Civil Service, Sojor, being
a third level official, is within the disciplinary jurisdiction of the Commission Proper. Thus,
strictly speaking, the Commission has the sole jurisdiction to issue the formal charge
against Sojor. . . . However, since the CSC RO No. VII already issued the formal charges
against him and found merit in the said formal charges, the same is adopted. The CSC
RO No. VII is authorized to proceed with the formal investigation of the case against Sojor
in accordance with the procedure outlined in the aforestated Uniform Rules. 19 (Emphasis
supplied)
No merit was found by the CSC in respondent's motion for reconsideration and,
accordingly, denied it with finality on July 6, 2004. 20 aTIAES
Respondent appealed the CSC resolutions to the CA via a petition for certiorari and
prohibition. He alleged that the CSC acted without or in excess of its jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the
assailed resolutions; that CSC encroached upon the academic freedom of CVPC; and
33
that the power to remove, suspend, and discipline the president of CVPC was exclusively
lodged in the BOT of CVPC.
CA Disposition
On September 29, 2004, the CA issued a writ of preliminary injunction directing the CSC
to cease and desist from enforcing its Resolution dated March 30, 2004 and Resolution
dated July 6, 2004. 21 Thus, the formal investigation of the administrative charges against
Sojor before the CSC-RO was suspended.
On June 27, 2005, after giving both parties an opportunity to air their sides, the CA
resolved in favor of respondent. It annulled the questioned CSC resolutions and
permanently enjoined the CSC from proceeding with the administrative investigation. The
dispositive part of the CA decision reads: SDEITC
WHEREFORE, in view of all the foregoing, and finding that the respondent Civil Service
Commission acted without jurisdiction in issuing the assailed Resolution Nos. 040321 and
040766 dated March 20, 2004 and July 6, 2004, respectively, the same are hereby
ANNULLED and SET ASIDE. The preliminary injunction issued by this Court on
September 29, 2004 is hereby made permanent.
SO ORDERED. 22
The CA ruled that the power to appoint carries with it the power to remove or to discipline.
It declared that the enactment of R.A. No. 9299 23 in 2004, which converted CVPC into
NORSU, did not divest the BOT of the power to discipline and remove its faculty
members, administrative officials, and employees. Respondent was appointed as
president of CVPC by the BOT by virtue of the authority granted to it under Section 6 of
R.A. No. 8292. 24 The power of the BOT to remove and discipline erring employees,
faculty members, and administrative officials as expressly provided for under Section 4
of R.A. No. 8292 is also granted to the BOR of NORSU under Section 7 of R.A. No. 9299.
The said provision reads: ACTISE
Powers and Duties of Governing Boards. The governing board shall have the following
specific powers and duties in addition to its general powers of administration and exercise
of all the powers granted to the board of directors of a corporation under Section 36 of
Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines:
xxx xxx xxx
to fix and adjust salaries of faculty members and administrative officials and employees .
. .; and to remove them for cause in accordance with the requirements of due process of
law. (Emphasis added)
The CA added that Executive Order (E.O.) No. 292, 25 which grants disciplinary
jurisdiction to the CSC over all branches, subdivisions, instrumentalities, and agencies of
the government, including government-owned or controlled corporations with original
charters, is a general law. According to the appellate court, E.O. No. 292 does not prevail
over R.A. No. 9299, 26 a special law. IADaSE
Issues
Petitioner CSC comes to Us, seeking to reverse the decision of the CA on the ground that
THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER
ACTED WITHOUT JURISDICTION IN ISSUING RESOLUTION NO. 040321 DATED
MARCH 30, 2004 AND RESOLUTION NO. 04766 DATED JULY 6, 2004. 27
34
Our Ruling
The petition is meritorious.
I. Jurisdiction of the CSC
The Constitution grants to the CSC administration over the entire civil service. 28 As
defined, the civil service embraces every branch, agency, subdivision, and instrumentality
of the government, including every government-owned or controlled corporation. 29 It is
further classified into career and non-career service positions. Career service positions
are those where: (1) entrance is based on merit and fitness or highly technical
qualifications; (2) there is opportunity for advancement to higher career positions; and (3)
there is security of tenure. These include: CIAHaT
(1) Open Career positions for appointment to which prior qualification in an appropriate
examination is required;
(2) Closed Career positions which are scientific, or highly technical in nature; these
include the faculty and academic staff of state colleges and universities, and scientific
and technical positions in scientific or research institutions which shall establish and
maintain their own merit systems;
(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and other officers of equivalent rank as
may be identified by the Career Executive Service Board, all of whom are appointed by
the President;
(4) Career officers, other than those in the Career Executive Service, who are appointed
by the President, such as the Foreign Service Officers in the Department of Foreign
Affairs;
(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a
separate merit system; TIaDHE
(6) Personnel of government-owned or controlled corporations, whether performing
governmental or proprietary functions, who do not fall under the non-career service; and
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled. 30
Career positions are further grouped into three levels. Entrance to the first two levels is
determined through competitive examinations, while entrance to the third level is
prescribed by the Career Executive Service Board. 31 The positions covered by each
level are:
(a) The first level shall include clerical, trades, crafts, and custodial service positions
which involve non-professional or subprofessional work in a non-supervisory or
supervisory capacity requiring less than four years of collegiate studies;
(b) The second level shall include professional, technical, and scientific positions which
involve professional, technical, or scientific work in a non-supervisory or supervisory
capacity requiring at least four years of college work up to Division Chief level; and
DISaEA
(c) The third level shall cover positions in the Career Executive Service. 32
On the other hand, non-career service positions are characterized by: (1) entrance not by
the usual tests of merit and fitness; and (2) tenure which is limited to a period specified
by law, coterminous with the appointing authority or subject to his pleasure, or limited to
35
the duration of a particular project for which purpose employment was made. 33 The law
states:
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure
of the President and their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of office and
their personal or confidential staff; DAESTI
(4) Contractual personnel or those whose employment in the government is in
accordance with a special contract to undertake a specific work or job, requiring special
or technical skills not available in the employing agency, to be accomplished within a
specific period, which in no case shall exceed one year, and performs or accomplishes
the specific work or job, under his own responsibility with a minimum of direction and
supervision from the hiring agency; and
(5) Emergency and seasonal personnel. 34
It is evident that CSC has been granted by the Constitution and the Administrative Code
jurisdiction over all civil service positions in the government service, whether career or
non-career. From this grant of general jurisdiction, the CSC promulgated the Revised
Uniform Rules on Administrative Cases in the Civil Service. 35 We find that the specific
jurisdiction, as spelled out in the CSC rules, did not depart from the general jurisdiction
granted to it by law. The jurisdiction of the Regional Office of the CSC and the
Commission central office (Commission Proper) is specified in the CSC rules as: DHSEcI
Section 4. Jurisdiction of the Civil Service Commission. The Civil Service Commission
shall hear and decide administrative cases instituted by, or brought before it, directly or
on appeal, including contested appointments, and shall review decisions and actions of
its offices and of the agencies attached to it.
Except as otherwise provided by the Constitution or by law, the Civil Service Commission
shall have the final authority to pass upon the removal, separation and suspension of all
officers and employees in the civil service and upon all matters relating to the conduct,
discipline and efficiency of such officers and employees.
Section 5. Jurisdiction of the Civil Service Commission Proper. The Civil Service
Commission Proper shall have jurisdiction over the following cases: SITCEA
A. Disciplinary
1. Decisions of Civil Service Regional Offices brought before it on petition for review;
2. Decisions of heads of departments, agencies, provinces, cities, municipalities and
other instrumentalities, imposing penalties exceeding thirty days suspension or fine in an
amount exceeding thirty days salary brought before it on appeal;
3. Complaints brought against Civil Service Commission Proper personnel;
4. Complaints against third level officials who are not presidential appointees;
36
5. Complaints against Civil Service officials and employees which are not acted upon by
the agencies and such other complaints requiring direct or immediate action, in the
interest of justice; HEDSIc
6. Requests for transfer of venue of hearing on cases being heard by Civil Service
Regional Offices;
7. Appeals from the Order of Preventive Suspension; and
8. Such other actions or requests involving issues arising out of or in connection with the
foregoing enumerations.
B. Non-Disciplinary
1. Decisions of Civil Service Commission Regional Offices brought before it;
2. Requests for favorable recommendation on petition for executive clemency;
3. Protests against the appointment, or other personnel actions, involving third level
officials; and
4. Such other analogous actions or petitions arising out of or in relation with the foregoing
enumerations. aHADTC
Section 6. Jurisdiction of Civil Service Regional Offices. The Civil Service Commission
Regional Offices shall have jurisdiction over the following cases:
A. Disciplinary
1. Complaints initiated by, or brought before, the Civil Service Commission Regional
Offices provided that the alleged acts or omissions were committed within the jurisdiction
of the Regional Office, including Civil Service examination anomalies or irregularities and
the persons complained of are employees of agencies, local or national, within said
geographical areas;
2. Complaints involving Civil Service Commission Regional Office personnel who are
appointees of said office; and
3. Petitions to place respondent under Preventive Suspension.
B. Non-Disciplinary
1. Disapproval of appointments brought before it on appeal;
2. Protests against the appointments of first and second level employees brought before
it directly or on appeal. (Emphasis supplied) DAaHET
Respondent, a state university president with a fixed term of office appointed by the
governing board of trustees of the university, is a non-career civil service officer. He was
appointed by the chairman and members of the governing board of CVPC. By clear
provision of law, respondent is a non-career civil servant who is under the jurisdiction of
the CSC.
II. The power of the BOR to

discipline officials and employees
37
is not exclusive. CSC has

concurrent jurisdiction over a
president of a state university.
Section 4 of R.A. No. 8292, or the Higher Education Modernization Act of 1997, under
which law respondent was appointed during the time material to the present case,
provides that the school's governing board shall have the general powers of
administration granted to a corporation. In addition, Section 4 of the law grants to the
board the power to remove school faculty members, administrative officials, and
employees for cause: IEaHSD
Section 4. Powers and Duties of Governing Boards. The governing board shall have
the following specific powers and duties in addition to its general powers of administration
and the exercise of all the powers granted to the board of directors of a corporation under
Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the
Philippines:
xxx xxx xxx
h) to fix and adjust salaries of faculty members and administrative officials and employees
subject to the provisions of the revised compensation and classification system and other
pertinent budget and compensation laws governing hours of service, and such other
duties and conditions as it may deem proper; to grant them, at its discretion, leaves of
absence under such regulations as it may promulgate, any provisions of existing law to
the contrary notwithstanding; and to remove them for cause in accordance with the
requirements of due process of law. (Emphasis supplied) TAcDHS
The above section was subsequently reproduced as Section 7 (i) of the succeeding law
that converted CVPC into NORSU, R.A. No. 9299. Notably, and in contrast with the earlier
law, R.A. No. 9299 now provides that the administration of the university and exercise of
corporate powers of the board of the school shall be exclusive:
Sec. 4. Administration. The University shall have the general powers of a corporation
set forth in Batas Pambansa Blg. 68, as amended, otherwise known as "The Corporation
Code of the Philippines." The administration of the University and the exercise of its
corporate powers shall be vested exclusively in the Board of Regents and the president
of the University insofar as authorized by the Board.
Measured by the foregoing yardstick, there is no question that administrative power over
the school exclusively belongs to its BOR. But does this exclusive administrative power
extend to the power to remove its erring employees and officials? ADSTCa
In light of the other provisions of R.A. No. 9299, respondent's argument that the BOR has
exclusive power to remove its university officials must fail. Section 7 of R.A. No. 9299
states that the power to remove faculty members, employees, and officials of the
university is granted to the BOR "in addition to its general powers of administration". This
provision is essentially a reproduction of Section 4 of its predecessor, R.A. No. 8292,
demonstrating that the intent of the lawmakers did not change even with the enactment
of the new law. For clarity, the text of the said section is reproduced below:
Sec. 7. Powers and Duties of the Board of Regents. The Board shall have the following
specific powers and duties in addition to its general powers of administration and the
exercise of all the powers granted to the Board of Directors of a corporation under existing
laws:
xxx xxx xxx
38
i. To fix and adjust salaries of faculty members and administrative officials and
employees, subject to the provisions of the Revised Compensation and Position
Classification System and other pertinent budget and compensation laws governing hours
of service and such other duties and conditions as it may deem proper; to grant them, at
its discretion, leaves of absence under such regulations as it may promulgate, any
provision of existing law to the contrary notwithstanding; and to remove them for cause in
accordance with the requirements of due process of law. 36 (Emphasis supplied) AIcECS
Verily, the BOR of NORSU has the sole power of administration over the university. But
this power is not exclusive in the matter of disciplining and removing its employees and
officials.
Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline
its employees and officials, there is no showing that such power is exclusive. When the
law bestows upon a government body the jurisdiction to hear and decide cases involving
specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved
that another body is likewise vested with the same jurisdiction, in which case, both bodies
have concurrent jurisdiction over the matter. 37
All members of the civil service are under the jurisdiction of the CSC, unless otherwise
provided by law. Being a non-career civil servant does not remove respondent from the
ambit of the CSC. Career or non-career, a civil service official or employee is within the
jurisdiction of the CSC. CDTSEI
This is not a case of first impression.
In University of the Philippines v. Regino, 38 this Court struck down the claim of exclusive
jurisdiction of the UP BOR to discipline its employees. The Court held then:
The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction
in administrative disciplinary cases involving members of the Civil Service. Section 9(j)
mandates that the Commission shall have the power to "hear and decide administrative
disciplinary cases instituted directly with it in accordance with Section 37 or brought to it
on appeal." And Section 37(a) provides that, "The Commission shall decide upon appeal
all administrative disciplinary cases involving the imposition of a penalty of suspension
for more than thirty (30) days, or fine in an amount exceeding thirty days' salary, demotion
in rank or salary or transfer, removal or dismissal from office." (Emphasis supplied)
CacTIE
Under the 1972 Constitution,all government-owned or controlled corporations, regardless
of the manner of their creation, were considered part of the Civil Service. Under the 1987
Constitution, only government-owned or controlled corporations with original charters fall
within the scope of the Civil Service pursuant to Article IX-B, Section 2(1), which states:
"The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies
of the government, including government-owned or controlled corporations with original
charters."
As a mere government-owned or controlled corporation, UP was clearly a part of the Civil
Service under the 1973 Constitution and now continues to be so because it was created
by a special law and has an original charter. As a component of the Civil Service, UP is
therefore governed by PD 807 and administrative cases involving the discipline of its
employees come under the appellate jurisdiction of the Civil Service Commission. 39
(Emphasis supplied)
39
In the more recent case of Camacho v. Gloria, 40 this Court lent credence to the
concurrent jurisdiction of the CSC when it affirmed that a case against a university official
may be filed either with the university's BOR or directly with the CSC. We quote: DCcHIS
Further, petitioner contends that the creation of the committee by the respondent
Secretary, as Chairman of the USP Board of Regents, was contrary to the Civil Service
Rules. However, he cites no specific provision of the Civil Service Law which was violated
by the respondents in forming the investigating committee. The Civil Service Rules
embodied in Executive Order 292 recognize the power of the Secretary and the university,
through its governing board, to investigate and decide matters involving disciplinary action
against officers and employees under their jurisdiction. Of course under EO 292, a
complaint against a state university official may be filed either with the university's Board
of Regents or directly with the Civil Service Commission, although the CSC may delegate
the investigation of a complaint and for that purpose, may deputize any department,
agency, official or group of officials to conduct such investigation. 41 (Emphasis supplied)
Thus, CSC validly took cognizance of the administrative complaints directly filed before
the regional office, concerning violations of civil service rules against respondent. ADCIca
III. Academic freedom may not be
invoked when there are alleged
violations of civil service laws and
rules.
Certainly, academic institutions and personnel are granted wide latitude of action under
the principle of academic freedom. Academic freedom encompasses the freedom to
determine who may teach, who may be taught, how it shall be taught, and who may be
admitted to study. 42 Following that doctrine, this Court has recognized that institutions
of higher learning has the freedom to decide for itself the best methods to achieve their
aims and objectives, free from outside coercion, except when the welfare of the general
public so requires. 43 They have the independence to determine who to accept to study
in their school and they cannot be compelled by mandamus to enroll a student. 44
That principle, however, finds no application to the facts of the present case. Contrary to
the matters traditionally held to be justified to be within the bounds of academic freedom,
the administrative complaints filed against Sojor involve violations of civil service rules.
He is facing charges of nepotism, dishonesty, falsification of official documents, grave
misconduct, and conduct prejudicial to the best interest of the service. These are
classified as grave offenses under civil service rules, punishable with suspension or even
dismissal. 45 EScHDA
This Court has held that the guaranteed academic freedom does not give an institution
the unbridled authority to perform acts without any statutory basis. 46 For that reason, a
school official, who is a member of the civil service, may not be permitted to commit
violations of civil service rules under the justification that he was free to do so under the
principle of academic freedom.
Lastly, We do not agree with respondent's contention that his appointment to the position
of president of NORSU, despite the pending administrative cases against him, served as
a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid
down in Salalima v. Guingona, Jr. 47 and Aguinaldo v. Santos 48 are inapplicable to the
present circumstances. Respondents in the mentioned cases are elective officials, unlike
respondent here who is an appointed official. Indeed, election expresses the sovereign
will of the people. 49 Under the principle of vox populi est suprema lex, the re-election of
a public official may, indeed, supersede a pending administrative case. The same cannot
be said of a re-appointment to a non-career position. There is no sovereign will of the
40
people to speak of when the BOR re-appointed respondent Sojor to the post of university
president.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is
REVERSED and SET ASIDE. The assailed Resolutions of the Civil Service Commission
are REINSTATED. IDcHCS
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Corona (I certify that J.
Corona concurred in the decision), Carpio-Morales, Azcuna, Tinga, Chico-Nazario,
Velasco, Jr., Nachura, Leonardo-de Castro and Brion, JJ., concur.
Carpio, J., is on leave.
||| (Civil Service Commission v. Sojor, G.R. No. 168766, [May 22, 2008], 577 PHIL 52-72)
5. MERCADO VS. AMA 618 SCRA 218 (2010)
SECOND DIVISION
[G.R. No. 183572. April 13, 2010.]
YOLANDA M. MERCADO, CHARITO S. DE LEON, DIANA R. LACHICA, MARGARITO
M. ALBA, JR.,and FELIX A. TONOG, petitioners,vs.AMA COMPUTER COLLEGEPARAAQUE CITY, INC., respondent.
DECISION
BRION, J p:
The petitioners Yolanda M. Mercado (Mercado),Charito S. De Leon (De Leon),Diana
R. Lachica (Lachica),Margarito M. Alba, Jr. (Alba, Jr.,),and Felix A. Tonog (Tonog),all
former faculty members of AMA Computer College-Paraaque City, Inc. (AMACC)
assail in this petition for review on certiorari 1 the Court of Appeals' (CA) decision of
November 29, 2007 2 and its resolution of June 20, 2008 3 that set aside the National
Labor Relations Commission's (NLRC) resolution dated July 18, 2005. 4
THE FACTUAL ANTECEDENTS
The background facts are not disputed and are summarized below.
AMACC is an educational institution engaged in computer-based education in the
country. One of AMACC's biggest schools in the country is its branch at Paraaque City.
The petitioners were faculty members who started teaching at AMACC on May 25, 1998.
The petitioner Mercado was engaged as a Professor 3, while petitioner Tonog was
engaged as an Assistant Professor 2. On the other hand, petitioners De Leon, Lachica
and Alba, Jr., were all engaged as Instructor 1. 5 The petitioners executed individual
Teacher's Contracts for each of the trimesters that they were engaged to teach, with the
following common stipulation: 6
1.POSITION. The TEACHER has agreed to accept a non-tenured appointment to work
in the College of ...effective ...to ...or for the duration of the last term that the TEACHER
is given a teaching load based on the assignment duly approved by the DEAN/SAVPCOO. [Emphasis supplied]
For the school year 2000-2001, AMACC implemented new faculty screening guidelines,
set forth in its Guidelines on the Implementation of AMACC Faculty Plantilla. 7 Under the
new screening guidelines, teachers were to be hired or maintained based on extensive
teaching experience, capability, potential, high academic qualifications and research
background. The performance standards under the new screening guidelines were also
41
used to determine the present faculty members' entitlement to salary increases. The
petitioners failed to obtain a passing rating based on the performance standards; hence
AMACC did not give them any salary increase. 8 SAcaDE
Because of AMACC's action on the salary increases, the petitioners filed a complaint with
the Arbitration Branch of the NLRC on July 25, 2000, for underpayment of wages, nonpayment of overtime and overload compensation, 13th month pay, and for discriminatory
practices. 9
On September 7, 2000, the petitioners individually received a memorandum from
AMACC, through Human Resources Supervisor Mary Grace Beronia, informing them that
with the expiration of their contract to teach, their contract would no longer be renewed.
10 The memorandum 11 entitled "Notice of Non-Renewal of Contract" states in full:
In view of the expiration of your contract to teach with AMACC-Paraaque, We wish to
inform you that your contract shall no longer be renewed effective Thirty (30) days upon
receipt of this notice. We therefore would like to thank you for your service and wish you
good luck as you pursue your career.
You are hereby instructed to report to the HRD for further instruction. Please bear in mind
that as per company policy, you are required to accomplish your clearance and turn-over
all documents and accountabilities to your immediate superior.
For your information and guidance.
The petitioners amended their labor arbitration complaint to include the charge of illegal
dismissal against AMACC. In their Position Paper, the petitioners claimed that their
dismissal was illegal because it was made in retaliation for their complaint for monetary
benefits and discriminatory practices against AMACC. The petitioners also contended
that AMACC failed to give them adequate notice; hence, their dismissal was ineffectual.
12
AMACC contended in response that the petitioners worked under a contracted term under
a non-tenured appointment and were still within the three-year probationary period for
teachers. Their contracts were not renewed for the following term because they failed to
pass the Performance Appraisal System for Teachers (PAST) while others failed to
comply with the other requirements for regularization, promotion, or increase in salary.
This move, according to AMACC, was justified since the school has to maintain its high
academic standards. 13
The Labor Arbiter Ruling
On March 15, 2002, Labor Arbiter (LA) Florentino R. Darlucio declared in his decision 14
that the petitioners had been illegally dismissed, and ordered AMACC to reinstate them
to their former positions without loss of seniority rights and to pay them full backwages,
attorney's fees and 13th month pay. The LA ruled that Article 281 of the Labor Code on
probationary employment applied to the case; that AMACC allowed the petitioners to
teach for the first semester of school year 2000-200; that AMACC did not specify who
among the petitioners failed to pass the PAST and who among them did not comply with
the other requirements of regularization, promotions or increase in salary; and that the
petitioners' dismissal could not be sustained on the basis of AMACC's "vague and general
allegations" without substantial factual basis. 15 Significantly, the LA found no
"discrimination in the adjustments for the salary rate of the faculty members based on the
performance and other qualification which is an exercise of management prerogative." 16
On this basis, the LA paid no heed to the claims for salary increases. DaESIC
The NLRC Ruling
On appeal, the NLRC in a Resolution dated July 18, 2005 17 denied AMACC's appeal for
lack of merit and affirmed in toto the LA's ruling. The NLRC, however, observed that the
applicable law is Section 92 of the Manual of Regulations for Private Schools (which
mandates a probationary period of nine consecutive trimesters of satisfactory service for
academic personnel in the tertiary level where collegiate courses are offered on a
trimester basis),not Article 281 of the Labor Code (which prescribes a probationary period
of six months) as the LA ruled. Despite this observation, the NLRC affirmed the LA's
42
finding of illegal dismissal since the petitioners were terminated on the basis of standards
that were only introduced near the end of their probationary period.
The NLRC ruled that the new screening guidelines for the school year 2000-20001 cannot
be imposed on the petitioners and their employment contracts since the new guidelines
were not imposed when the petitioners were first employed in 1998. According to the
NLRC, the imposition of the new guidelines violates Section 6 (d) of Rule I, Book VI of the
Implementing Rules of the Labor Code, which provides that "in all cases of probationary
employment, the employer shall make known to the employee the standards under which
he will qualify as a regular employee at the time of his engagement." Citing our ruling in
Orient Express Placement Philippines v. NLRC, 18 the NLRC stressed that the rudiments
of due process demand that employees should be informed beforehand of the conditions
of their employment as well as the basis for their advancement.
AMACC elevated the case to the CA via a petition for certiorari under Rule 65 of the Rules
of Court. It charged that the NLRC committed grave abuse of discretion in: (1) ruling that
the petitioners were illegally dismissed; (2) refusing to recognize and give effect to the
petitioner's valid term of employment; (3) ruling that AMACC cannot apply the
performance standards generally applicable to all faculty members; and (4) ordering the
petitioners' reinstatement and awarding them backwages and attorney's fees.
The CA Ruling
In a decision issued on November 29, 2007, 19 the CA granted AMACC's petition for
certiorari and dismissed the petitioners' complaint for illegal dismissal.
The CA ruled that under the Manual for Regulations for Private Schools, a teaching
personnel in a private educational institution (1) must be a full time teacher; (2) must have
rendered three consecutive years of service; and (3) such service must be satisfactory
before he or she can acquire permanent status.
The CA noted that the petitioners had not completed three (3) consecutive years of
service (i.e., six regular semesters or nine consecutive trimesters of satisfactory service)
and were still within their probationary period; their teaching stints only covered a period
of two (2) years and three (3) months when AMACC decided not to renew their contracts
on September 7, 2000. AEDCHc
The CA effectively found reasonable basis for AMACC not to renew the petitioners'
contracts. To the CA, the petitioners were not actually dismissed; their respective
contracts merely expired and were no longer renewed by AMACC because they failed to
satisfy the school's standards for the school year 2000-2001 that measured their fitness
and aptitude to teach as regular faculty members. The CA emphasized that in the
absence of any evidence of bad faith on AMACC's part, the court would not disturb or
nullify its discretion to set standards and to select for regularization only the teachers who
qualify, based on reasonable and non-discriminatory guidelines.
The CA disagreed with the NLRC's ruling that the new guidelines for the school year
2000-20001 could not be imposed on the petitioners and their employment contracts. The
appellate court opined that AMACC has the inherent right to upgrade the quality of
computer education it offers to the public; part of this pursuit is the implementation of
continuing evaluation and screening of its faculty members for academic excellence. The
CA noted that the nature of education AMACC offers demands that the school constantly
adopt progressive performance standards for its faculty to ensure that they keep pace
with the rapid developments in the field of information technology.
Finally, the CA found that the petitioners were hired on a non-tenured basis and for a
fixed and predetermined term based on the Teaching Contract exemplified by the contract
between the petitioner Lachica and AMACC. The CA ruled that the non-renewal of the
petitioners' teaching contracts is sanctioned by the doctrine laid down in Brent School,
Inc. v. Zamora 20 where the Court recognized the validity of contracts providing for fixedperiod employment.
THE PETITION
The petitioners cite the following errors in the CA decision: 21
1) The CA gravely erred in reversing the LA and NLRC illegal dismissal rulings; and
2) The CA gravely erred in not ordering their reinstatement with full, backwages.
43
The petitioners submit that the CA should not have disturbed the findings of the LA and
the NLRC that they were illegally dismissed; instead, the CA should have accorded great
respect, if not finality, to the findings of these specialized bodies as these findings were
supported by evidence on record. Citing our ruling in Soriano v. National Labor Relations
Commission, 22 the petitioners contend that in certiorari proceedings under Rule 65 of
the Rules of Court, the CA does not assess and weigh the sufficiency of evidence upon
which the Labor Arbiter and the NLRC based their conclusions. They submit that the CA
erred when it substituted its judgment for that of the Labor Arbiter and the NLRC who
were the "triers of facts" who had the opportunity to review the evidence extensively.
On the merits, the petitioners argue that the applicable law on probationary employment,
as explained by the LA, is Article 281 of the Labor Code which mandates a period of six
(6) months as the maximum duration of the probationary period unless there is a
stipulation to the contrary; that the CA should not have disturbed the LA's conclusion that
the AMACC failed to support its allegation that they did not qualify under the new
guidelines adopted for the school year 2000-2001; and that they were illegally dismissed;
their employment was terminated based on standards that were not made known to them
at the time of their engagement. On the whole, the petitioners argue that the LA and the
NLRC committed no grave abuse of discretion that the CA can validly cite. aIHCSA
THE CASE FOR THE RESPONDENT
In their Comment, 23 AMACC notes that the petitioners raised no substantial argument
in support of their petition and that the CA correctly found that the petitioners were hired
on a non-tenured basis and for a fixed or predetermined term. AMACC stresses that the
CA was correct in concluding that no actual dismissal transpired; it simply did not renew
the petitioners' respective employment contracts because of their poor performance and
failure to satisfy the school's standards.
AMACC also asserts that the petitioners knew very well that the applicable standards
would be revised and updated from time to time given the nature of the teaching
profession. The petitioners also knew at the time of their engagement that they must
comply with the school's regularization policies as stated in the Faculty Manual.
Specifically, they must obtain a passing rating on the Performance Appraisal for Teachers
(PAST) the primary instrument to measure the performance of faculty members.
Since the petitioners were not actually dismissed, AMACC submits that the CA correctly
ruled that they are not entitled to reinstatement, full backwages and attorney's fees.
THE COURT'S RULING
We find the petition meritorious.
The CA's Review of Factual Findings under Rule 65
We agree with the petitioners that, as a rule in certiorari proceedings under Rule 65 of the
Rules of Court, the CA does not assess and weigh each piece of evidence introduced in
the case. The CA only examines the factual findings of the NLRC to determine whether
or not the conclusions are supported by substantial evidence whose absence points to
grave abuse of discretion amounting to lack or excess of jurisdiction. 24 In the recent
case of Protacio v. Laya Mananghaya & Co., 25 we emphasized that:
As a general rule, in certiorari proceedings under Rule 65 of the Rules of Court, the
appellate court does not assess and weigh the sufficiency of evidence upon which the
Labor Arbiter and the NLRC based their conclusion. The query in this proceeding is limited
to the determination of whether or not the NLRC acted without or in excess of its
jurisdiction or with grave abuse of discretion in rendering its decision. However, as an
exception, the appellate court may examine and measure the factual findings of the NLRC
if the same are not supported by substantial evidence. The Court has not hesitated to
affirm the appellate court's reversals of the decisions of labor tribunals if they are not
supported by substantial evidence. [Emphasis supplied]
As discussed below, our review of the records and of the CA decision shows that the CA
erred in recognizing that grave abuse of discretion attended the NLRC's conclusion that
the petitioners were illegally dismissed. Consistent with this conclusion, the evidence on
44
record show that AMACC failed to discharge its burden of proving by substantial evidence
the just cause for the non-renewal of the petitioners' contracts. HDTSIE
In Montoya v. Transmed Manila Corporation, 26 we laid down our basic approach in the
review of Rule 65 decisions of the CA in labor cases, as follows:
In a Rule 45 review, we consider the correctness of the assailed CA decision,in contrast
with the review for jurisdictional error that we undertake under Rule 65. Furthermore, Rule
45 limits us to the review of questions of law raised against the assailed CA decision. In
ruling for legal correctness, we have to view the CA decision in the same context that the
petition for certiorari it ruled upon was presented to it; we have to examine the CA decision
from the prism of whether it correctly determined the presence or absence of grave abuse
of discretion in the NLRC decision before it, not on the basis of whether the NLRC
decision on the merits of the case was correct.In other words, we have to be keenly aware
that the CA undertook a Rule 65 review, not a review on appeal, of the NLRC decision
challenged before it. This is the approach that should be basic in a Rule 45 review of a
CA ruling in a labor case. In question form, the question to ask is: Did the CA correctly
determine whether the NLRC committed grave abuse of discretion in ruling on the case?
Following this approach, our task is to determine whether the CA correctly found that the
NLRC committed grave abuse of discretion in ruling that the petitioners were illegally
dismissed.
Legal Environment in the Employment of Teachers
a. Rule on Employment on Probationary Status
A reality we have to face in the consideration of employment on probationary status of
teaching personnel is that they are not governed purely by the Labor Code. The Labor
Code is supplemented with respect to the period of probation by special rules found in
the Manual of Regulations for Private Schools. 27 On the matter of probationary period,
Section 92 of these regulations provides:
Section 92. Probationary Period. Subject in all instances to compliance with the
Department and school requirements,the probationary period for academic personnel
shall not be more than three (3) consecutive years of satisfactory service for those in the
elementary and secondary levels, six (6) consecutive regular semesters of satisfactory
service for those in the tertiary level, and nine (9) consecutive trimesters of satisfactory
service for those in the tertiary level where collegiate courses are offered on a trimester
basis.[Emphasis supplied]
The CA pointed this out in its decision (as the NLRC also did),and we confirm the
correctness of this conclusion. Other than on the period, the following quoted portion of
Article 281 of the Labor Code still fully applies:
...The services of an employee who has been engaged on a probationary basis may be
terminated for a just cause when he fails to qualify as a regular employee in accordance
with reasonable standards made known by the employer to the employee at the time of
his engagement.An employee who is allowed to work after a probationary period shall be
considered a regular employee. [Emphasis supplied]
b. Fixed-period Employment
The use of employment for fixed periods during the teachers' probationary period is
likewise an accepted practice in the teaching profession. We mentioned this in passing in
Magis Young Achievers' Learning Center v. Adelaida P. Manalo, 28 albeit a case that
involved elementary, not tertiary, education, and hence spoke of a school year rather than
a semester or a trimester. We noted in this case: aAHTDS
The common practice is for the employer and the teacher to enter into a contract, effective
for one school year. At the end of the school year, the employer has the option not to
renew the contract, particularly considering the teacher's performance. If the contract is
not renewed, the employment relationship terminates. If the contract is renewed, usually
for another school year, the probationary employment continues. Again, at the end of that
period, the parties may opt to renew or not to renew the contract. If renewed, this second
renewal of the contract for another school year would then be the last year since it
45
would be the third school year of probationary employment. At the end of this third
year, the employer may now decide whether to extend a permanent appointment to the
employee, primarily on the basis of the employee having met the reasonable standards
of competence and efficiency set by the employer. For the entire duration of this threeyear period, the teacher remains under probation. Upon the expiration of his contract of
employment, being simply on probation, he cannot automatically claim security of tenure
and compel the employer to renew his employment contract.It is when the yearly contract
is renewed for the third time that Section 93 of the Manual becomes operative, and the
teacher then is entitled to regular or permanent employment status.
It is important that the contract of probationary employment specify the period or term of
its effectivity. The failure to stipulate its precise duration could lead to the inference that
the contract is binding for the full three-year probationary period.
We have long settled the validity of a fixed-term contract in the case Brent School, Inc. v.
Zamora 29 that AMACC cited. Significantly, Brent happened in a school setting. Care
should be taken, however, in reading Brent in the context of this case as Brent did not
involve any probationary employment issue; it dealt purely and simply with the validity of
a fixed-term employment under the terms of the Labor Code, then newly issued and which
does not expressly contain a provision on fixed-term employment.
c. Academic and Management Prerogative
Last but not the least factor in the academic world, is that a school enjoys academic
freedom a guarantee that enjoys protection from the Constitution no less. Section 5 (2)
Article XIV of the Constitution guarantees all institutions of higher learning academic
freedom. 30
The institutional academic freedom includes the right of the school or college to decide
and adopt its aims and objectives, and to determine how these objections can best be
attained, free from outside coercion or interference, save possibly when the overriding
public welfare calls for some restraint. The essential freedoms subsumed in the term
"academic freedom" encompass the freedom of the school or college to determine for
itself: (1) who may teach; (2) who may be taught; (3) how lessons shall be taught; and (4)
who may be admitted to study. 31
AMACC's right to academic freedom is particularly important in the present case, because
of the new screening guidelines for AMACC faculty put in place for the school year 20002001. We agree with the CA that AMACC has the inherent right to establish high
standards of competency and efficiency for its faculty members in order to achieve and
maintain academic excellence. The school's prerogative to provide standards for its
teachers and to determine whether or not these standards have been met is in
accordance with academic freedom that gives the educational institution the right to
choose who should teach. 32 In Pea v. National Labor Relations Commission, 33 we
emphasized: HDacIT
It is the prerogative of the school to set high standards of efficiency for its teachers since
quality education is a mandate of the Constitution. As long as the standards fixed are
reasonable and not arbitrary, courts are not at liberty to set them aside. Schools cannot
be required to adopt standards which barely satisfy criteria set for government
recognition.
The same academic freedom grants the school the autonomy to decide for itself the terms
and conditions for hiring its teacher, subject of course to the overarching limitations under
the Labor Code. Academic freedom, too, is not the only legal basis for AMACC's issuance
of screening guidelines. The authority to hire is likewise covered and protected by its
management prerogative the right of an employer to regulate all aspects of
employment, such as hiring, the freedom to prescribe work assignments, working
methods, process to be followed, regulation regarding transfer of employees, supervision
of their work, lay-off and discipline, and dismissal and recall of workers. 34 Thus, AMACC
has every right to determine for itself that it shall use fixed-term employment contracts as
its medium for hiring its teachers. It also acted within the terms of the Manual of
46
Regulations for Private Schools when it recognized the petitioners to be merely on

probationary status up to a maximum of nine trimesters.
The Conflict: Probationary Status
and Fixed-term Employment
The existence of the term-to-term contracts covering the petitioners' employment is not
disputed, nor is it disputed that they were on probationary status not permanent or
regular status from the time they were employed on May 25, 1998 and until the
expiration of their Teaching Contracts on September 7, 2000. As the CA correctly found,
their teaching stints only covered a period of at least seven (7) consecutive trimesters or
two (2) years and three (3) months of service. This case, however, brings to the fore the
essential question of which, between the two factors affecting employment, should prevail
given AMACC's position that the teachers contracts expired and it had the right not to
renew them.In other words, should the teachers' probationary status be disregarded
simply because the contracts were fixed-term?
The provision on employment on probationary status under the Labor Code 35 is a
primary example of the fine balancing of interests between labor and management that
the Code has institutionalized pursuant to the underlying intent of the Constitution. 36
On the one hand, employment on probationary status affords management the chance to
fully scrutinize the true worth of hired personnel before the full force of the security of
tenure guarantee of the Constitution comes into play. 37 Based on the standards set at
the start of the probationary period, management is given the widest opportunity during
the probationary period to reject hirees who fail to meet its own adopted but reasonable
standards. 38 These standards, together with the just 39 and authorized causes 40 for
termination of employment the Labor Code expressly provides, are the grounds available
to terminate the employment of a teacher on probationary status. For example, the school
may impose reasonably stricter attendance or report compliance records on teachers on
probation, and reject a probationary teacher for failing in this regard, although the same
attendance or compliance record may not be required for a teacher already on permanent
status. At the same time, the same just and authorizes causes for dismissal under the
Labor Code apply to probationary teachers, so that they may be the first to be laid-off if
the school does not have enough students for a given semester or trimester. Termination
of employment on this basis is an authorized cause under the Labor Code. 41 DCIAST
Labor, for its part, is given the protection during the probationary period of knowing the
company standards the new hires have to meet during the probationary period, and to be
judged on the basis of these standards, aside from the usual standards applicable to
employees after they achieve permanent status. Under the terms of the Labor Code,
these standards should be made known to the teachers on probationary status at the start
of their probationary period, or at the very least under the circumstances of the present
case, at the start of the semester or the trimester during which the probationary standards
are to be applied. Of critical importance in invoking a failure to meet the probationary
standards, is that the school should show as a matter of due process how these
standards have been applied. This is effectively the second notice in a dismissal situation
that the law requires as a due process guarantee supporting the security of tenure
provision, 42 and is in furtherance, too, of the basic rule in employee dismissal that the
employer carries the burden of justifying a dismissal. 43 These rules ensure compliance
with the limited security of tenure guarantee the law extends to probationary employees.
44
When fixed-term employment is brought into play under the above probationary period
rules, the situation as in the present case may at first blush look muddled as fixedterm employment is in itself a valid employment mode under Philippine law and
jurisprudence. 45 The conflict, however, is more apparent than real when the respective
nature of fixed-term employment and of employment on probationary status are closely
examined.
The fixed-term character of employment essentially refers to the period agreed upon
between the employer and the employee; employment exists only for the duration of the
term and ends on its own when the term expires. In a sense, employment on probationary
status also refers to a period because of the technical meaning "probation" carries in
47
Philippine labor law a maximum period of six months, or in the academe, a period of
three years for those engaged in teaching jobs. Their similarity ends there, however,
because of the overriding meaning that being "on probation" connotes, i.e., a process of
testing and observing the character or abilities of a person who is new to a role or job. 46
Understood in the above sense, the essentially protective character of probationary status
for management can readily be appreciated. But this same protective character gives rise
to the countervailing but equally protective rule that the probationary period can only last
for a specific maximum period and under reasonable, well-laid and properly
communicated standards. Otherwise stated, within the period of the probation, any
employer move based on the probationary standards and affecting the continuity of the
employment must strictly conform to the probationary rules.
Under the given facts where the school year is divided into trimesters, the school
apparently utilizes its fixed-term contracts as a convenient arrangement dictated by the
trimestral system and not because the workplace parties really intended to limit the period
of their relationship to any fixed term and to finish this relationship at the end of that term.
If we pierce the veil, so to speak, of the parties' so-called fixed-term employment
contracts, what undeniably comes out at the core is a fixed-term contract conveniently
used by the school to define and regulate its relations with its teachers during their
probationary period. AaCEDS
To be sure, nothing is illegitimate in defining the school-teacher relationship in this
manner. The school, however, cannot forget that its system of fixed-term contract is a
system that operates during the probationary period and for this reason is subject to the
terms of Article 281 of the Labor Code. Unless this reconciliation is made, the
requirements of this Article on probationary status would be fully negated as the school
may freely choose not to renew contracts simply because their terms have expired. The
inevitable effect of course is to wreck the scheme that the Constitution and the Labor
Code established to balance relationships between labor and management.
Given the clear constitutional and statutory intents, we cannot but conclude that in a
situation where the probationary status overlaps with a fixed-term contract not specifically
used for the fixed term it offers, Article 281 should assume primacy and the fixed-period
character of the contract must give way. This conclusion is immeasurably strengthened
by the petitioners' and the AMACC's hardly concealed expectation that the employment
on probation could lead to permanent status, and that the contracts are renewable unless
the petitioners fail to pass the school's standards.
To highlight what we mean by a fixed-term contract specifically used for the fixed term it
offers, a replacement teacher, for example, may be contracted for a period of one year to
temporarily take the place of a permanent teacher on a one-year study leave. The
expiration of the replacement teacher's contracted term, under the circumstances, leads
to no probationary status implications as she was never employed on probationary basis;
her employment is for a specific purpose with particular focus on the term and with every
intent to end her teaching relationship with the school upon expiration of this term.
If the school were to apply the probationary standards (as in fact it says it did in the present
case),these standards must not only be reasonable but must have also been
communicated to the teachers at the start of the probationary period, or at the very least,
at the start of the period when they were to be applied. These terms, in addition to those
expressly provided by the Labor Code, would serve as the just cause for the termination
of the probationary contract. As explained above, the details of this finding of just cause
must be communicated to the affected teachers as a matter of due process.
AMACC, by its submissions, admits that it did not renew the petitioners' contracts
because they failed to pass the Performance Appraisal System for Teachers (PAST) and
other requirements for regularization that the school undertakes to maintain its high
academic standards. 47 The evidence is unclear on the exact terms of the standards,
although the school also admits that these were standards under the Guidelines on the
Implementation of AMACC Faculty Plantilla put in place at the start of school year 20002001.
While we can grant that the standards were duly communicated to the petitioners and
could be applied beginning the 1st trimester of the school year 2000-2001, glaring and
48
very basic gaps in the school's evidence still exist. The exact terms of the standards were
never introduced as evidence; neither does the evidence show how these standards were
applied to the petitioners. 48 Without these pieces of evidence (effectively, the finding of
just cause for the non-renewal of the petitioners' contracts), we have nothing to consider
and pass upon as valid or invalid for each of the petitioners. Inevitably, the non-renewal
(or effectively, the termination of employment of employees on probationary status) lacks
the supporting finding of just cause that the law requires and, hence, is illegal. caIETS
In this light, the CA decision should be reversed. Thus, the LA's decision, affirmed as to
the results by the NLRC, should stand as the decision to be enforced, appropriately recomputed to consider the period of appeal and review of the case up to our level.
Given the period that has lapsed and the inevitable change of circumstances that must
have taken place in the interim in the academic world and at AMACC, which changes
inevitably affect current school operations, we hold that in lieu of reinstatement the
petitioners should be paid separation pay computed on a trimestral basis from the time of
separation from service up to the end of the complete trimester preceding the finality of
this Decision. 49 The separation pay shall be in addition to the other awards, properly
recomputed, that the LA originally decreed.
WHEREFORE,premises considered, we hereby GRANT the petition, and, consequently,
REVERSE and SET ASIDE the Decision of the Court of Appeals dated November 29,
2007 and its Resolution dated June 20, 2008 in CA-G.R. SP No. 96599. The Labor
Arbiter's decision of March 15, 2002, subsequently affirmed as to the results by the
National Labor Relations Commission, stands and should be enforced with appropriate
re-computation to take into account the date of the finality of this Decision.
In lieu of reinstatement, AMA Computer College-Paraaque City, Inc. is hereby
DIRECTED to pay separation pay computed on a trimestral basis from the time of
separation from service up to the end of the complete trimester preceding the finality of
this Decision. For greater certainty, the petitioners are entitled to:
(a) backwages and 13th month pay computed from September 7, 2000 (the date AMA
Computer College-Paraaque City, Inc. illegally dismissed the petitioners) up to the
finality of this Decision;
(b) monthly honoraria (if applicable) computed from September 7, 2000 (the time of
separation from service) up to the finality of this Decision; and
(c) separation pay on a trimestral basis from September 7, 2000 (the time of separation
from service) up to the end of the complete trimester preceding the finality of this Decision.
The labor arbiter is hereby ORDERED to make another re-computation according to the
above directives. No costs.
SO ORDERED.
Carpio, Del Castillo, Perez and Mendoza, * JJ., concur.
||| (Mercado v. AMA Computer College-Paraaque City, Inc., G.R. No. 183572, [April 13,
2010], 632 PHIL 228-261)
6. CALAWAG VS. UPVISAYAS 703 SCRA 373 (2013)
SECOND DIVISION
[G.R. No. 207412. August 7, 2013.]
FLORD NICSON CALAWAG, petitioner, vs. UNIVERSITY OF THE PHILIPPINES
VISAYAS and DEAN CARLOS C. BAYLON, respondents.
[G.R. No. 207542. August 7, 2013.]
MICAH P. ESPIA, JOSE MARIE F. NASALGA and CHE CHE B. SALCEPUEDES,
petitioners, vs. DR. CARLOS C. BAYLON, DR. MINDA J. FORMACION and DR.
49
EMERLINDA ROMAN (to be substituted by Alfredo E. Pascual, being the new UP

President), University of the Philippines Board of Regents, respondents.
RESOLUTION
BRION, J p:
This case involves the consolidated petitions of petitioner Flord Nicson Calawag in G.R.
No. 207412 and petitioners Micah P. Espia, Jose Marie F. Nasalga and Che Che B.
Salcepuedes in G.R. No. 207542 (hereinafter collectively known as petitioners), both
assailing the decision 1 dated August 9, 2012 of the Court of Appeals (CA) in CA-G.R.
CEB-SP No. 05079. The CA annulled the Order 2 of the Regional Trial Court (RTC) of
Guimbal, Iloilo, Branch 67, granting a writ of preliminary mandatory injunction against
respondent Dean Carlos Baylon of the University of the Philippines Visayas (UP Visayas).
The petitioners enrolled in the Master of Science in Fisheries Biology at UP Visayas under
a scholarship from the Department of Science and Technology-Philippine Council for
Aquatic and Marine Research and Development. They finished their first year of study
with good grades, and thus were eligible to start their thesis in the first semester of their
second year. The petitioners then enrolled in the thesis program, drafted their tentative
thesis titles, and obtained the consent of Dr. Rex Balea to be their thesis adviser, as well
as the other faculty members' consent to constitute their respective thesis committees.
These details were enclosed in the letters the petitioners sent to Dean Baylon, asking him
to approve the composition of their thesis committees. The letter contained the thesis
committee members and the thesis adviser's approval of their titles, as well as the
approval of Professor Roman Sanares, the director of the Institute of Marine Fisheries
and Oceanology.
Upon receipt of the petitioners' letters, Dean Baylon wrote a series of memos addressed
to Professor Sanares, questioning the propriety of the thesis topics with the college's
graduate degree program. He subsequently disapproved the composition of the
petitioners' thesis committees and their tentative thesis topics. According to Dean Baylon,
the petitioners' thesis titles connote a historical and social dimension study which is not
appropriate for the petitioners' chosen master's degrees. Dean Baylon thereafter ordered
the petitioners to submit a two-page proposal containing an outline of their tentative thesis
titles, and informed them that he is forming an ad hoc committee that would take over the
role of the adviser and of the thesis committees.
The petitioners thus filed a petition for certiorari and mandamus before the RTC, asking
it to order Dean Baylon to approve and constitute the petitioners' thesis committees and
approve their thesis titles. They also asked that the RTC issue a writ of preliminary
mandatory injunction against Dean Baylon, and order him to perform such acts while the
suit was pending.
The RTC granted a writ of preliminary mandatory injunction, which Dean Baylon allegedly
refused to follow. UP Visayas eventually assailed this order before the CA through a Rule
65 petition for certiorari, with prayer for a temporary restraining order (TRO). TSaEcH
The CA's Ruling
The CA issued a TRO against the implementation of the RTC's order, holding that the
petitioners had no clear right to compel Dean Baylon to approve the composition of their
thesis committees as a matter of course. As the college dean, Dean Baylon exercises
supervisory authority in all academic matters affecting the college. According to the CA,
the petitioners' reliance on Article 51 of the Graduate Program Manual of UP Visayas is
misplaced. Article 51 provides:
50
Art. 51. The composition of the thesis committee shall be approved by the dean of the
college/school upon the recommendation of the chairperson of the major
department/division/institute. The GPO shall be informed of the composition of the thesis
committee and/or any change thereof. 3
Despite the mandatory language provided for composing the thesis committee under
Article 51 of the Graduate Program Manual of UP Visayas, the CA construed it to mean
that the Dean's approval is necessary prior to the composition of a thesis committee.
Lastly, the CA held that the case presents issues that are purely academic in character,
which are outside the court's jurisdiction. It also noted that Dean Baylon has been
accommodating of the petitioners, and that the requirements he imposed were meant to
assist them to formulate a proper thesis title and graduate on time.
The Petitions for Review on Certiorari
In G.R. No. 207412, Calawag argues that the CA's decision should be set aside for the
following reasons:
First, Calawag was entitled to the injunction prayed for, as he has clear rights under the
law which were violated by Dean Baylon's actions. These are the right to education, the
right to due process, and the right to equal protection under the law. According to
Calawag, Dean Baylon violated his right to due process when he added to and changed
the requirements for the constitution of his thesis committee, without prior publication of
the change in rules. Calawag's right to equal protection of the law, on the other hand, was
allegedly violated because only students like him, who chose Dr. Balea for their thesis
adviser, were subjected to the additional requirements imposed by the dean, while the
other students' thesis committees were formed without these impositions. Hence,
Calawag and the three other petitioners in G.R. No. 207542 were unduly discriminated
against.
Second, a reading of Executive Order No. 628, s. 1980, 4 and Republic Act No. 9500 5
shows that the college dean's functions are merely administrative, and, hence, the CA
erred in its construction of Article 51 of the Graduate Program Manual of UP Visayas, as
well as its proclamation that the college dean has supervisory authority over academic
matters in the college.
On the other hand, in G.R. No. 207542, petitioners Espia, Nasalga and Salcepuedes
argue that the CA's decision should be set aside for the following reasons:
First, the Graduate Program Manual of UP Visayas and the Guidelines for the Master of
Science in Fisheries Program are clear in providing that Dean Baylon has a formal duty
to approve the composition of the petitioners' thesis committees upon the latter's
compliance with several requirements. Thus, when the petitioners complied with these
requirements and Dean Baylon still refused to approve the composition of their thesis
committees, the petitioners had a right to have him compelled to perform his duty.
Second, Dean Baylon cannot arbitrarily change and alter the manual and the guidelines,
and cannot use academic freedom as subterfuge for not performing his duties. HAaDTE
Third, the thesis adviser and the thesis committees, in consultations with the students,
have the right to choose the thesis topics, and not the dean.
The Court's Ruling
Having reviewed the arguments presented by the petitioners and the records they have
attached to the petitions, we find that the CA did not commit an error in judgment in setting
aside the preliminary mandatory injunction that the RTC issued against Dean Baylon.
51
Thus, there could be no basis for the Court's exercise of its discretionary power to review
the CA's decision.
"To be entitled to a writ of preliminary injunction, . . . the petitioners must establish the
following requisites: (a) the invasion of the right sought to be protected is material and
substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an
urgent and permanent necessity for the writ to prevent serious damage. Since a
preliminary mandatory injunction commands the performance of an act, it does not
preserve the status quo and is thus more cautiously regarded than a mere prohibitive
injunction. Accordingly, the issuance of a writ of preliminary mandatory injunction
[presents a fourth requirement: it] is justified only in a clear case, free from doubt or
dispute. When the complainant's right is thus doubtful or disputed, he does not have a
clear legal right and, therefore, the issuance of injunctive relief is improper." 6
The CA did not err in ruling that the petitioners failed to show a clear and unmistakable
right that needs the protection of a preliminary mandatory injunction. We support the CA's
conclusion that the dean has the discretion to approve or disapprove the composition of
a thesis committee, and, hence, the petitioners had no right for an automatic approval
and composition of their thesis committees.
Calawag's citation of Executive Order No. 628, s. 1980 and Republic Act No. 9500 to
show that the dean of a college exercises only administrative functions and, hence, has
no ascendancy over the college's academic matters, has no legal ground to stand on.
Neither law provides or supports such conclusion, as neither specifies the role and
responsibilities of a college dean. The functions and duties of a college dean are outlined
in the university's Faculty Manual, which details the rules and regulations governing the
university's administration. Section 11.8.2, paragraph b of the Faculty Manual
enumerates the powers and responsibilities of a college dean, which include the power
to approve the composition of a thesis committee, to wit:
11.8.2 Administration
xxx xxx xxx
b. Dean/Director of UP System or UP Diliman-based Programs *
The Dean/Director shall be responsible for the planning and implementation of the
graduate programs. In particular, the Dean/Director shall exercise the following powers
and responsibilities based on the recommendations forwarded to him/her, through
channels:
xxx xxx xxx
Approve the composition of the Thesis, Dissertation or Special Project ** Committees
and Master's or doctoral examination/oral defense panel for each student[.] 7 (emphases
and italics ours)
By necessary implication, 8 the dean's power to approve includes the power to disapprove
the composition of a thesis committee. Thus, under the UP System's faculty manual, the
dean has complete discretion in approving or disapproving the composition of a thesis
committee. Harmonizing this provision with the Graduate Program Manual of UP Visayas,
and the Guidelines for the Master of Science in Fisheries Program, we agree with the
CA's interpretation that the thesis committee's composition needs the approval of the
dean after the students have complied with the requisites provided in Article 51 of the
Graduate Program Manual and Section IX of the Guidelines for the Master of Science in
Fisheries Program. 9 HDIaST
52
Anent the petitioners' argument that Dean Baylon acted arbitrarily in imposing additional
requirements for the composition of the thesis committee, which according to Calawag
violated their right to due process, we hold that the dean's authority to approve or
disapprove the composition of a thesis committee includes this discretion. We also note
the CA's finding that these additional requirements were meant to assist the petitioners
in formulating a thesis title that is in line with the college's master of fisheries program.
Absent any finding of grave abuse of discretion, we cannot interfere with the exercise of
the dean's prerogative without encroaching on the college's academic freedom.
Verily, the academic freedom accorded to institutions of higher learning gives them the
right to decide for themselves their aims and objectives and how best to attain them. 10
They are given the exclusive discretion to determine who can and cannot study in them,
as well as to whom they can confer the honor and distinction of being their graduates. 11
This necessarily includes the prerogative to establish requirements for graduation, such
as the completion of a thesis, and the manner by which this shall be accomplished by
their students. The courts may not interfere with their exercise of discretion unless there
is a clear showing that they have arbitrarily and capriciously exercised their judgment. 12
Lastly, the right to education invoked by Calawag cannot be made the basis for issuing a
writ of preliminary mandatory injunction. In Department of Education, Culture and Sports
v. San Diego, 13 we held that the right to education is not absolute. Section 5 (e), Article
XIV of the Constitution provides that "[e]very citizen has a right to select a profession or
course of study, subject to fair, reasonable, and equitable admission and academic
requirements." The thesis requirement and the compliance with the procedures leading
to it, are part of the reasonable academic requirements a person desiring to complete a
course of study would have to comply with.
WHEREFORE, the Court resolves to DENY giving due course to the petitions in G.R. No.
207412 and G.R. No. 207542.
SO ORDERED. SEACTH
Carpio, Del Castillo, Perez and Perlas-Bernabe, JJ., concur.
||| (Calawag v. University of the Philippines Visayas, G.R. No. 207412, 207542
(Resolution), [August 7, 2013])
INDIVIDUAL RIGHTS
I.
DUE PROCESS AND EQUAL PROTECTION AS LIMITATIONS ON POLICE

POWER, EMINENT DOMAIN AND TAXATION
A. Fundamental Principles on Constitutional Law and the Bill of Rights
1. MANILA PRINCE HOTEL VS. GSIS 267 SCRA 408 (1997)
EN BANC
[G.R. No. 122156. February 3, 1997.]
MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and
OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.
SYLLABUS
53
1. POLITICAL LAW; CONSTITUTION; DEFINED. A constitution is a system of

fundamental laws for the governance and administration of a nation. It is supreme,
imperious, absolute and unalterable except by the authority from which it emanates. It
has been defined as the fundamental and paramount law of the nation. It prescribes the
permanent framework of a system of government, assigns to the different departments
their respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a supreme
law to which all other laws must conform and in accordance with which all private rights
must be determined and all public authority administered.
2. ID.; ID.; DEEMED WRITTEN IN EVERY STATUTE AND CONTRACT. Under the
doctrine of constitutional supremacy, if a law or contract violates any norm of the
constitution that law or contract whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes is null and void and without
any force and effect. Thus, since the Constitution is the fundamental, paramount and
supreme law of the nation, it is deemed written in every statute and contract. Adhering to
the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the
bidding rules be nullified for being violative of the Constitution. It is a basic principle in
constitutional law that all laws and contracts must conform with the fundamental law of
the land. Those which violate the Constitution lose their reason for being.
3. ID.; ID.; CONSIDERED SELF-EXECUTING RATHER THAN NON-SELFEXECUTING. In case of doubt, the Constitution should be considered self-executing
rather than non-self-executing . . . Unless the contrary is clearly intended, the provisions
of the Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could make
them entirely meaningless by simply refusing to pass the needed implementing statute.
(Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10)
4. ID.; ID.; SELF-EXECUTING PROVISIONS; LEGISLATURE NOT PRECLUDED FROM
ENACTING LAWS ENFORCING PROVISIONS. Quite apparently, Sec. 10, second
par., of Art. XII is couched in such a way as not to make it appear that it is non-selfexecuting but simply for purposes of style. But, certainly, the legislature is not precluded
from enacting further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left to the
legislature without the self-executing nature of constitutional provisions. The omission
from a constitution of any express provision for a remedy for enforcing a right or liability
is not necessarily an indication that it was not intended to be self-executing. The rule is
that a self-executing provision of the constitution does not necessarily exhaust legislative
power on the subject, but any legislation must be in harmony with the constitution, further
the exercise of constitutional right and make it more available. Subsequent legislation
however does not necessarily mean that the subject constitutional provision is not, by
itself, fully enforceable.
5. ID.; ID.; ID.; A PROVISION MAY BE SELF-EXECUTING IN ONE PART AND NONSELF-EXECUTING IN ANOTHER. Respondents also argue that the non-selfexecuting nature of Sec. 10, second par., of Art. XII is implied from the tenor of the first
and third paragraphs of the same section which undoubtedly are not self-executing. The
argument is flawed. If the first and third paragraphs are not self-executing because
Congress is still to enact measures to encourage the formation and operation of
enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs
legislation to regulate and exercise authority over foreign investments within its national
jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second
paragraph can only be self-executing as it does not by its language require any legislation
54
in order to give preference to qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A constitutional provision
may be self-executing in one part and non-self-executing in another.
6. ID.; ID.; NATIONAL PATRIMONY; PROVISION ON PREFERENCE TO QUALIFIED
FILIPINOS, SELF-EXECUTING. Sec. 10, second par., Art. XII of the 1987 Constitution
is a mandatory, positive command which is complete in itself and which needs no further
guidelines or implementing laws or rules for its enforcement. From its very words the
provision does not require any legislation to put it in operation. It is per se judicially
enforceable. When our Constitution mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and patrimony, the State shall give preference
to qualified Filipinos, it means just that qualified Filipinos shall be preferred. And when
our Constitution declares that a right exists in certain specified circumstances an action
may be maintained to enforce such right notwithstanding the absence of any legislation
on the subject; consequently, if there is no statute especially enacted to enforce such
constitutional right, such right enforces itself by its own inherent potency and puissance
and from which all legislations must take their bearings. Where there is a right there is a
remedy. Ubi jus ibi remedium.
7. ID.; ID.; ID.; INCLUDES THE NATIONAL RESOURCES AND CULTURAL HERITAGE.
When the Constitution speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very well used the term
natural resources, but also to the cultural heritage of the Filipinos.
8. ID.; ID.; ID.; MANILA HOTEL CORPORATION, EMBRACED THEREIN; FILIPINO
FIRST POLICY PROVISION, APPLICABLE IN SALES OF HOTEL STOCKS. For more
than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its
own historicity associated with our struggle for sovereignty, independence and
nationhood. Verily, Manila Hotel has become part of our national economy and patrimony.
For sure, 51% of the equity of the MHC comes within the purview of the constitutional
shelter for it comprises the majority and controlling stock, so that anyone who acquires or
owns the 51% will have actual control and management of the hotel. In this instance, 51%
of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents' claim that the Filipino First Policy
provision is not applicable since what is being sold is only 51% of the outstanding shares
of the corporation, not the Hotel building nor the land upon which the building stands.
9. ID.; STATE; SALE BY THE GSIS OF 51% OF ITS SHARE IN MANILA HOTEL CORP.,
A STATE ACTION, SUBJECT TO CONSTITUTIONAL COMMAND. In constitutional
jurisprudence, the acts of persons distinct from the government are considered "state
action" covered by the Constitution (1) when the activity it engages in is a " public
function", (2) when the government is so-significantly involved with the private actor as to
make the government responsible for his action; and, (3) when the government has
approved or authorized the action. It is evident that the act of respondent GSIS in selling
51% of its share in respondent MHC comes under the second and third categories of
"state action." Without doubt therefore the transaction, although entered into by
respondent GSIS, is in fact a transaction of the State and therefore subject to the
constitutional command.
10. ID.; CONSTITUTION; WHEN THE CONSTITUTION ADDRESSES THE STATE, IT
REFERS TO BOTH PEOPLE AND GOVERNMENT. When the Constitution addresses
the State it refers not only to the people but also to the government as elements of the
State. After all, government is composed of three (3) divisions of power legislative,
executive and judicial. Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three (3) branches of government. It is undeniable that in
this case the subject constitutional injunction is addressed among others to the Executive
55
Department and respondent GSIS, a government instrumentality deriving its authority

from the State.
11. ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS; SALE
OF STOCKS OF MANILA HOTEL CORPORATION BY THE GSIS; FILIPINOS
ALLOWED TO MATCH THE BID OF FOREIGN ENTITY. In the instant case, where a
foreign firm submits the highest bid in a public bidding concerning the grant of rights,
privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed
to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm
the award should go to the Filipino. It must be so if we are to give life and meaning to the
Filipino First Policy provision of the 1987 Constitution. For, while this may neither be
expressly stated nor contemplated in the bidding rules, the constitutional fiat is
omnipresent to be imply disregarded. To ignore it would be to sanction a perilous skirting
of the basic law.
12. REMEDIAL LAW; ACTIONS; FOREIGN BIDDERS WITHOUT CAUSE OF ACTION
AGAINST GSIS BEFORE ACCEPTANCE OF BID. The argument of respondents that
petitioner is now estopped from questioning the sale to Renong Berhad since petitioner
was well aware from the beginning that a foreigner could participate in the bidding is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino
fails to match the highest bid tendered by the foreign entity. In the case before us, while
petitioner was already preferred at the inception of the bidding because of the
constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad.
Thus it did not have the right or personality then to compel respondent GSIS to accept its
earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of
action.
13. ID.; SPECIAL CIVIL ACTION, CERTIORARI; FAILURE OF THE GSIS TO EXECUTE
CORRESPONDING DOCUMENTS WHERE PETITIONER HAD MATCHED THE BID
PRICE BY FOREIGN BIDDER, A GRAVE ABUSE OF DISCRETION. Since petitioner
has already matched the bid price tendered by Renong Berhad pursuant to the bidding
rules, respondent GSIS is left with no alternative but to award to petitioner the block of
shares of MHC and to execute the necessary agreements and documents to effect the
sale in accordance not only with the bidding guidelines and procedures but with the
Constitution as well. The refusal of respondent GSIS to execute the corresponding
documents with petitioner as provided in the bidding rules after the latter has matched the
bid of the Malaysian firm clearly constitutes grave abuse of discretion.
14. ID.; SUPREME COURT; DUTY BOUND TO MAKE SURE THAT CONTRACTS DO
NOT VIOLATE THE CONSTITUTION OR THE LAWS. While it is no business of the
Court to intervene in contracts of the kind referred to or set itself up as the judge of
whether they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave abuse
of discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no
matter how buffeted by winds of unfair and ill-informed criticism. Indeed, the Court will
always defer to the Constitution in the proper governance of a free society; after all, there
is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review
when the Constitution is involved.
PADILLA, J., concurring opinion:
1. POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION, CONSTRUED.
A study of the 1935 Constitution, where the concept of "national patrimony" originated,
56
would show that its framers decided to adopt the even more comprehensive expression
"Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not
only the natural resources of the country but practically everything that belongs to the
Filipino people, the tangible and the material as well as the intangible and the spiritual
assets and possessions of the people. It is to be noted that the framers did not stop with
conservation. They knew that conservation alone does not spell progress; and that this
may be achieved only through development as a correlative factor to assure to the people
not only the exclusive ownership, but also the exclusive benefits of their national
patrimony. Moreover, the concept of national patrimony has been viewed as referring not
only to our rich natural resources but also to the cultural heritage of our race. There is no
doubt in my mind that the Manila Hotel is very much a part of our national patrimony and,
as such deserves constitutional protection as to who shall own it and benefit from its
operation. This institution has played an important role in our nation's history, having been
the venue of many a historical event, and serving as it did, and as it does, as the Philippine
Guest House for visiting foreign heads of state, dignitaries, celebrities, and others.
2. ID.; ID.; MANILA HOTEL, PART OF OUR NATIONAL PATRIMONY. There is no
doubt in my mind that the Manila Hotel is very much a part of our national patrimony and,
as such, deserves constitutional protection as to who shall own it and benefit from its
operation. This institution has played an important role in our nation's history, having been
the venue of many a historical event, and serving as it did, and as it does, as the Philippine
Guest House for visiting foreign heads of state, dignitaries, celebrities, and others.
3. ID.; ID.; PREFERENCE TO QUALIFIED FILIPINOS; APPLIED TO SALES OF SHARE
OF STOCKS OF MANILA HOTEL. "Preference to qualified Filipinos," to be meaningful,
must refer not only to things that are peripheral, collateral, or tangential. It must touch and
affect the very "heart of the existing order." In the field of public bidding in the acquisition
of things that pertain to the national patrimony, preference to qualified Filipinos must allow
a qualified Filipino to match or equal the higher bid of a non-Filipino; the preference shall
not operate only when the bids of the qualified Filipino and the non-Filipino are equal in
which case, the award should undisputedly be made to the qualified Filipino. The
Constitutional preference should give the qualified Filipino an opportunity to match or
equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all. While government agencies, including the courts should
re-condition their thinking to such a trend, and make it easy and even attractive for foreign
investors to come to our shores, yet we should not preclude ourselves from reserving to
us Filipinos certain areas where our national identity, culture and heritage are involved.
In the hotel industry, for instance, foreign investors have established themselves
creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This
should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation
in the hands of Filipinos. This would be in keeping with the intent of the Filipino people to
preserve our national patrimony, including our historical and cultural heritage in the hands
of Filipinos.
VITUG, J., separate opinion:
1. POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PROVISION GIVING
PREFERENCE TO QUALIFIED FILIPINOS, SELF-EXECUTORY. The provision in our
fundamental law which provides that "(i)n the grant of rights, privileges, and concessions
covering the national economy and patrimony, the State shall give preference to qualified
Filipinos" is self-executory. The provision verily does not need, although it can obviously
be amplified or regulated by, an enabling law or a set of rules.
2. ID.; ID.; ID.; PATRIMONY INCLUDES CULTURAL HERITAGE OF THE COUNTRY;
MANILA HOTEL, EMBRACED THEREIN. The term "patrimony" does not merely refer
to the country's natural resources but also to its cultural heritage. A "historical landmark,"
to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now indeed become
part of Philippine heritage.
57
3. ADMINISTRATIVE LAW; GOVERNMENT SERVICE INSURANCE SYSTEM; SALE

OF ITS SHARE IN MANILA HOTEL CORPORATION, AN ACT OF THE STATE;
CONSTITUTIONAL REQUIREMENT SHOULD BE COMPLIED WITH. The act of the
Government Service Insurance System ("GSIS"), a government entity which derives its
authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
4. POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PREFERENCE TO
QUALIFIED FILIPINOS; DOES NOT REFER TO ALLOWING QUALIFIED FILIPINOS TO
MATCH FOREIGN BID. On the pivotal issue of the degree of "preference to qualified
Filipinos" I find it somewhat difficult to take the same path traversed by the forceful
reasoning of Justice Puno. In the particular case before us, the only meaningful
preference, it seems, would really be to allow the qualified Filipino to match the foreign
bid for, as a practical matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone,
under the dissenting view, could trigger the right of preference.
MENDOZA, J., separate opinion:
POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PREFERENCE TO
QUALIFIED FILIPINOS; FILIPINO BIDDERS SHOULD BE ALLOWED TO EQUAL BID
OF FOREIGN FIRM IN SALE OF STOCKS OF MANILA HOTEL CORPORATION. I
take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering
the national patrimony the State shall give preference to qualified Filipinos" is to allow
petitioner Philippine corporation to equal the bid of the Malaysian firm Renong Berhad for
the purchase of the controlling shares of stocks in the Manila Hotel Corporation. Indeed,
it is the only way a qualified Filipino or Philippine corporation can be given preference in
the enjoyment of a right, privilege or concession given by the State, by favoring it over a
foreign national or corporation. Under the rules on public bidding of the Government
Service and Insurance System, if petitioner and the Malaysian firm had offered the same
price per share, "priority [would be given] to the bidder seeking the larger ownership
interest in MHC," so that if petitioner bid for more shares, it would be preferred to the
Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the
highest bidder, that preferential treatment of the Philippine corporation is mandated not
by declaring it winner but by allowing it "to match the highest bid in terms of price per
share" before it is awarded the shares of stocks. That, to me, is what "preference to
qualified Filipinos" means in the context of this case by favoring Filipinos whenever
they are at a disadvantage vis-a-vis foreigners.
TORRES, JR., J., separate opinion:
POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION; MANILA HOTEL,
EMBRACED WITHIN THE MEANING THEREOF; SALE OF ITS STOCKS SHOULD BE
LIMITED TO QUALIFIED FILIPINOS. Section 10, Article XII of the 1987 Constitution
should be read in conjunction with Article II of the same Constitution pertaining to
"Declaration of Principles and State Policies" which ordain "The State shall develop a
self-reliant and independent national economy, effectively controlled by Filipinos." (Sec.
19), Interestingly, the matter of giving preference to "qualified Filipinos" was one of the
highlights in the 1987 Constitution Commission proceedings. The nationalistic provisions
of the 1987 Constitution reflect the history and spirit of the Malolos Constitution of 1898,
the 1935 Constitution and the 1973 Constitution. I subscribe to the view that history,
culture, heritage, and tradition are not legislated and is the product of events, customs,
usages and practices. It is actually a product of growth and acceptance by the collective
mores of a race. It is the spirit and soul of a people. The Manila Hotel is part of our history,
culture and heritage. Every inch of the Manila Hotel is witness to historic events (too
58
numerous to mention) which shaped our history for almost 84 years. The history of the
Manila Hotel should not be placed in the auction block of a purely business transaction,
where profit subverts the cherished historical values of our people. The Filipino should be
first under his Constitution and in his own land.
PUNO, J., dissenting opinion:

1. POLITICAL LAW; CONSTITUTION; AS A RULE PROVISIONS THEREOF ARE SELFEXECUTING. A Constitution provides the guiding policies and principles upon which
is built the substantial foundation and general framework of the law and government. As
a rule, its provisions are deemed self-executing and can be enforced without further
legislative action. Some of its provisions, however, can be implemented only through
appropriate laws enacted by the Legislature, hence not self-executing. Courts as a rule
consider the provisions of the Constitution as self-executing, rather than as requiring
future legislation for their enforcement. The reason is not difficult to discern For if they are
not treated as self-executing, the mandate of the fundamental law ratified by the
sovereign people can be easily ignored and nullified by Congress. Suffused with wisdom
of the ages is the unyielding rule that legislative actions may give breath to constitutional
rights but congressional inaction should not suffocate them.
2. ID.; ID.; PROVISIONS ARE NOT SELF-EXECUTING WHERE IT MERELY
ANNOUNCES A POLICY AND EMPOWERS THE LEGISLATURE TO ENACT LAWS TO
CARRY THE POLICY INTO EFFECT. Contrariwise, case law lays down the rule that
a constitutional provision is not self-executing where it merely announces a policy and its
language empowers the Legislature to prescribe the means by which the policy shall be
carried into effect.
3. ID.; ID.; FIRST PARAGRAPH OF SECTION 10, ARTICLE 12 NOT SELFEXECUTING. The first paragraph directs Congress to reserve certain areas of
investments in the country to Filipino citizens or to corporations sixty per cent of whose
capital stock is owned by Filipinos. It further commands Congress to enact laws that will
encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities. The first paragraph of
Section 10 is not self-executing. By its express text, there is a categorical command for
Congress to enact laws restricting foreign ownership in certain areas of investments in
the country and to encourage the formation and operation of wholly-owned Filipino
enterprises.
4. ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS UNDER
PARAGRAPHS 2 AND 3 OF SECTION 10, ARTICLE 12, SELF-EXECUTING. The
second and third paragraphs of Section 10 are different. They are directed to the State
and not to Congress alone which is but one of the three great branches of our
government. Their coverage is also broader for they cover "the national economy and
patrimony" and "foreign investments within [the] national jurisdiction" and not merely
"certain areas of investments." Beyond debate, they cannot be read as granting Congress
the exclusive power to implement by law the policy of giving preference to qualified
Filipinos in the conferral of rights and privileges covering our national economy and
patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason
whatsoever. Their duty to implement is unconditional and it is now. The second and the
third paragraphs of Section 10, Article XII are thus self-executing.
59
5. ID.; ID.; ID.; MANILA HOTEL CORPORATION, PART OF THE NATIONAL

PATRIMONY. The second issue is whether the sale of a majority of the stocks of the
Manila Hotel Corporation involves the disposition of part of our national patrimony. The
records of the Constitutional Commission show that the Commissioners entertained the
same view as to its meaning. According to Commissioner Nolledo, "patrimony" refers not
only to our rich natural resources but also to the cultural heritage of our race. By this
yardstick, the sale of Manila Hotel falls within the coverage of the constitutional provision
giving preferential treatment to qualified Filipinos in the grant of rights involving our
national patrimony.
6. ID.; STATE; GSIS, EMBRACED WITHIN THE MEANING THEREOF. The third
issue is whether the constitutional command to the State includes the respondent GSIS.
A look at its charter will reveal that GSIS is a government-owned and controlled
corporation that administers funds that come from the monthly contributions of
government employees and the government. The funds are held in trust for a distinct
purpose which cannot be disposed of indifferently. They are to be used to finance the
retirement, disability and life insurance benefits of the employees and the administrative
and operational expenses of the GSIS. Excess funds, however, are allowed to be
invested in business and other ventures for the benefit of the employees. The GSIS is not
a pure private corporation. It is essentially a public corporation created by Congress and
granted an original charter to serve a public purpose. It is subject to the jurisdictions of
the Civil Service Commission and the Commission on Audit. As a state-owned and
controlled corporation, it is skin-bound to adhere to the policies spelled out in the
Constitution especially those designed to promote the general welfare of the people. One
of these policies is the Filipino First policy which the people elevated as a constitutional
command.
7. ID.; CONSTITUTION; PROVISIONS THEREOF DEEMED INCLUDED IN ALL
LEGISLATIONS AND ALL STATE ACTIONS. The constitutional command to enforce
the Filipino First policy is addressed to the State and not to Congress alone. Hence, the
word "laws" should not be understood as limited to legislations but all state actions which
include applicable rules and regulations adopted by agencies and instrumentalities of the
State in the exercise of their rule-making power.
8. ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS; STATE
NOT PROHIBITED FROM GRANTING RIGHTS TO FOREIGN FIRM IN THE ABSENCE
OF QUALIFIED FILIPINOS. In the absence of qualified Filipinos, the State is not
prohibited from granting these rights, privileges and concessions to foreigners if the act
will promote the weal of the nation.
9. ID.; ID.; ID.; ID.; CASE AT BAR. The right of preference of petitioner arises only if it
tied the bid of Renong Berhad. In that instance, all things stand equal, and petitioner, as
a qualified Filipino bidder, should be preferred. It is with deep regret that I cannot
subscribe to the view that petitioner has a right to match the bid of Renong Berhad.
Petitioner's submission must be supported by the rules but even if we examine the rules
inside-out a thousand times, they can not justify the claimed right. Under the rules, the
right to match the highest bid arises only "if for any reason, the highest bidder cannot be
awarded the block of shares . . . ." No reason has arisen that will prevent the award to
Renong Berhad. It deserves the award as a matter of right for the rules clearly did not
give to the petitioner as a qualified Filipino the privilege to match the higher bid of a
foreigner. What the rules did not grant, petitioner cannot demand. Our sympathies may
be with petitioner but the court has no power to extend the latitude and longitude of the
right of preference as defined by the rules. We are duty-bound to respect that
determination even if we differ with the wisdom of their judgment. The right they grant
may be little but we must uphold the grant for as long as the right of preference is not
denied. It is only when a State action amounts to a denial of the right that the Court can
come in and strike down the denial as unconstitutional.
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10. REMEDIAL LAW; ACTIONS; ESTOPPEL; PARTY ESTOPPED FROM ASSAILING

THE WINNING BID OF FOREIGN FIRM FROM BEING AWARE OF THE RULES AND
REGULATIONS OF THE BIDDINGS IT AGREED TO RESPECT. I submit that
petitioner is estopped from assailing the winning bid of Renong Berhad. Petitioner was
aware of the rules and regulations of the bidding. It knew that the rules and regulations
do not provide that a qualified Filipino bidder can match the winning bid after submitting
an inferior bid. It knew that the bid was open to foreigners and that foreigners qualified
even during the first bidding. Petitioner cannot be allowed to repudiate the rules which it
agreed to respect. It cannot be allowed to obey the rules when it wins and disregard them
when it loses. If sustained, petitioners' stance will wreak havoc on the essence of bidding.
PANGANIBAN, J., separate dissenting opinion:
POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION; PREFERENCE TO
QUALIFIED FILIPINOS; LOSING FILIPINO NOT GIVEN RIGHT TO EQUAL THE
HIGHEST FOREIGN BID. The majority contends the Constitution should be
interpreted to mean that, after a bidding process is concluded, the losing Filipino bidder
should be given the right to equal the highest foreign bid, and thus to win. However, the
Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights . . . covering the
national economy and patrimony, the State shall give preference to qualified Filipinos."
The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid
and equal that of the winning foreigner. In the absence of such empowering law, the
majority's strained interpretation, I respectfully submit, constitutes unadulterated judicial
legislation, which makes bidding a ridiculous sham where no Filipino can lose and where
no foreigner can win. Only in the Philippines! Aside from being prohibited by the
Constitution, such judicial legislation is short-sighted and, viewed properly, gravely
prejudicial to long-term Filipino interests. In the absence of a law specifying the degree
or extent of the "Filipino First" policy of the Constitution, the constitutional preference for
the "qualified Filipinos" may be allowed only where all the bids are equal. In this manner,
we put the Filipino ahead without self-destructing him and without being unfair to the
foreigner. In short, the Constitution mandates a victory for the qualified Filipino only when
the scores are tied. But not when the ballgame is over and the foreigner clearly posted
the highest score.
DECISION
BELLOSILLO, J p:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights,
privileges, and concessions covering the national economy and patrimony, the State shall
give preference to qualified Filipinos, 1 is invoked by petitioner in its bid to acquire 51%
of the shares of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel.
Opposing, respondents maintain that the provision is not self-executing but requires an
implementing legislation for its enforcement. Corollarily, they ask whether the 51% shares
form part of the national economy and patrimony covered by the protective mantle of the
Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS),
pursuant to the privatization program of the Philippine Government under Proclamation
No. 50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the
issued and outstanding shares of respondent MHC. The winning bidder, or the eventual
"strategic partner," is to provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and
performance of the Manila Hotel. 2 In a close bidding held on 18 September 1995 only
61
two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator,
which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid
of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below by October 23,
1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the
Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified
Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management
Contract, International Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila Hotel . . . .
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS
....
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met
a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995
(reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/
OGCC (Office of the Government Corporate Counsel) are obtained." 3
Pending the declaration of Renong Berhard as the winning bidder/strategic partner and
the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated
28 September 1995 matched the bid price of P44.00 per share tendered by Renong
Berhad. 4 In a subsequent letter dated 10 October 1995 petitioner sent a manager's check
issued by Philtrust Bank for Thirty-three Million Pesos (P33,000,000.00) as Bid Security
to match the bid of the Malaysian Group, Messrs. Renong Berhad . . . . 5 which
respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the
tender of the matching bid and that the sale of 51% of the MHC may be hastened by
respondent GSIS and consummated with Renong Berhad, petitioner came to this Court
on prohibition and mandamus. On 18 October 1995 the Court issued a temporary
restraining order enjoining respondents from perfecting and consummating the sale to the
Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was
referred to it by the First Division. The case was then set for oral arguments with former
Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and
submits that the Manila Hotel has been identified with the Filipino nation and has
practically become a historical monument which reflects the vibrancy of Philippine
heritage and culture. It is a proud legacy of an earlier generation of Filipinos who believed
in the nobility and sacredness of independence and its power and capacity to release the
62
full potential of the Filipino people. To all intents and purposes, it has become a part of
the national patrimony. 6 Petitioner also argues that since 51% of the shares of the MHC
carries with it the ownership of the business of the hotel which is owned by respondent
GSIS, a government-owned and controlled corporation, the hotel business of respondent
GSIS being a part of the tourism industry is unquestionably a part of the national
economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly
covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987
Constitution, applies. 7
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony
and its business also unquestionably part of the national economy petitioner should be
preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules
mandate that if for any reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted
bids provided that these Qualified Bidders are willing to match the highest bid in terms of
price per share. 8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing
provision and requires implementing legislation(s). . . . Thus, for the said provision to
operate, there must be existing laws "to lay down conditions under which business may
be done." 9
Second, granting that this provision is self-executing, Manila Hotel does not fall under the
term national patrimony which only refers to lands of the public domain, waters, minerals,
coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive
marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while petitioner speaks of the guests who have
slept in the hotel and the events that have transpired therein which make the hotel historic,
these alone do not make the hotel fall under the patrimony of the nation. What is more,
the mandate of the Constitution is addressed to the State, not to respondent GSIS which
possesses a personality of its own separate and distinct from the Philippines as a State.
lexlib
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is only 51%
of the outstanding shares of the corporation, not the hotel building nor the land upon which
the building stands. Certainly, 51% of the equity of the MHC cannot be considered part
of the national patrimony. Moreover, if the disposition of the shares of the MHC is really
contrary to the Constitution, petitioner should have questioned it right from the beginning
and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1, of the bidding rules which
provides that if for any reason, the Highest Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified Bidders that have validly submitted bids
provided that these Qualified Bidders are willing to match the highest bid in terms of price
per share, is misplaced. Respondents postulate that the privilege of submitting a matching
bid has not yet arisen since it only takes place if for any reason, the Highest Bidder cannot
be awarded the Block of Shares. Thus the submission by petitioner of a matching bid is
premature since Renong Berhad could still very well be awarded the block of shares and
the condition giving rise to the exercise of the privilege to submit a matching bid had not
yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since
respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if
ever it did abuse its discretion it was not so patent and gross as to amount to an evasion
63
of a positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the
petition for mandamus should fail as petitioner has no clear legal right to what it demands
and respondents do not have an imperative duty to perform the act required of them by
petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by
the authority from which it emanates. It has been defined as the fundamental and
paramount law of the nation. 10 It prescribes the permanent framework of a system of
government, assigns to the different departments their respective powers and duties, and
establishes certain fixed principles on which government is founded. The fundamental
conception in other words is that it is a supreme law to which all other laws must conform
and in accordance with which all private rights must be determined and all public authority
administered. 11 Under the doctrine of constitutional supremacy, if a law or contract
violates any norm of the constitution that law or contract whether promulgated by the
legislative or by the executive branch or entered into by private persons for private
purposes is null and void and without any force and effect. Thus, since the Constitution
is the fundamental paramount and supreme law of the nation, it is deemed written in every
statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their
provisions command the legislature to enact laws and carry out the purposes of the
framers who merely establish an outline of government providing for the different
departments of the governmental machinery and securing certain fundamental and
inalienable rights of citizens. 12 A provision which lays down a general principle, such as
those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision
which is complete in itself and becomes operative without the aid of supplementary or
enabling legislation, or that which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is
self-executing if the nature and extent of the right conferred and the liability imposed are
fixed by the constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject is referred
to the legislature for action. 13
As against constitutions of the past, modern constitutions have been generally drafted
upon a different principle and have often become in effect extensive codes of laws
intended to operate directly upon the people in a manner similar to that of statutory
enactments, and the function of constitutional conventions has evolved into one more like
that of a legislative body. Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption now is that all provisions
of the constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power to
ignore and practically nullify the mandate of the fundamental law. 14 This can be
cataclysmic. That is why the prevailing view is, as it has always been, that
. . . in case of doubt, the Constitution should be considered self-executing rather than
non-self-executing. . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could make
them entirely meaningless by simply refusing to pass the needed implementing statute.
15
64
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly
not self-executing, as they quote from discussions on the floor of the 1986 Constitutional
Commission
MR. RODRIGO.
Madam President, I am asking this question as the Chairman of the Committee on Style.
If the wording of "PREFERENCE" is given to "QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified.
So, why do we not make it clear? To qualified Filipinos as against aliens?
THE PRESIDENT.
What is the question of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?"
MR. RODRIGO.
No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against
aliens or over aliens?
MR. NOLLEDO.
Madam President, I think that is understood. We use the word "QUALIFIED" because
the existing laws or prospective laws will always lay down conditions under which
business may be done. For example, qualifications on capital, qualifications on the setting
up of other financial structures, et cetera (italics supplied by respondents).
MR RODRIGO.
It is just a matter of style.
MR. NOLLEDO.
Yes. 16
Quite apparently, Sec. 10, second par., of Art. XII is couched in such a way as not to
make it appear that it is non-self-executing but simply for purposes of style. But, certainly,
the legislature is not precluded from enacting further laws to enforce the constitutional
provision so long as the contemplated statute squares with the Constitution. Minor details
may be left to the legislature without the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to
facilitate the exercise of powers directly granted by the constitution, further the operation
of such a provision, prescribe a practice to be used for its enforcement, provide a
convenient remedy for the protection of the rights secured or the determination thereof,
or place reasonable safeguards around the exercise of the right. The mere fact that
legislation may supplement and add to or prescribe a penalty for the violation of a selfexecuting constitutional provision does not render such a provision ineffective in the
absence of such legislation. The omission from a constitution of any express provision for
a remedy for enforcing a right or liability is not necessarily an indication that it was not
intended to be self-executing. The rule is that a self-executing provision of the constitution
does not necessarily exhaust legislative power on the subject, but any legislation must be
in harmony with the constitution, further the exercise of constitutional right and make it
more available. 17 Subsequent legislation however does not necessarily mean that the
subject constitutional provision is not, by itself, fully enforceable.
65
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of
Art. XII is implied from the tenor of the first and third paragraphs of the same section which
undoubtedly are not self-executing. 18 The argument is flawed. If the first and third
paragraphs are not self-executing because Congress is still to enact measures to
encourage the formation and operation of enterprises fully owned by Filipinos, as in the
first paragraph, and the State still needs legislation to regulate and exercise authority over
foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori,
by the same logic, the second paragraph can only be self-executing as it does not by its
language require any legislation in order to give preference to qualified Filipinos in the
grant of rights, privileges and concessions covering the national economy and patrimony.
A constitutional provision may be self-executing in one part and non-self-executing in
another. 19
Even the cases cited by respondents holding that certain constitutional provisions are
merely statements of principles and policies, which are basically not self-executing and
only placed in the Constitution as moral incentives to legislation, not as judicially
enforceable rights are simply not in point. Basco v. Philippine Amusements and
Gaming Corporation 20 speaks of constitutional provisions on personal dignity, 21 the
sanctity of family life, 22 the vital role of the youth in nation-building, 23 the promotion of
social justice, 24 and the values of education. 25 Tolentino v. Secretary of Finance 26
refers to constitutional provisions on social justice and human rights 27 and on education.
28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the promotion of general
welfare, 30 the sanctity of family life, 31 the vital role of the youth in nation-building 32
and the promotion of total human liberation and development. 33 A reading of these
provisions indeed clearly shows that they are not judicially enforceable constitutional
rights but merely guidelines for legislation. The very terms of the provisions manifest that
they are only principles upon which legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very words the provision does
not require any legislation to put it in operation. It is per se judicially enforceable. When
our Constitution mandates that [i]n the grant of rights, privileges, and concessions
covering national economy and patrimony, the State shall give preference to qualified
Filipinos, it means just that qualified Filipinos shall be preferred. And when our
Constitution declares that a right exists in certain specified circumstances an action may
be maintained to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted to enforce such
constitutional right, such right enforces itself by its own inherent potency and puissance,
and from which all legislations must take their bearings. Where there is a right there is a
remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission 34
explains
The patrimony of the Nation that should be conserved and developed refers not only to
our rich natural resources but also to the cultural heritage of our race. It also refers to our
intelligence in arts, sciences and letters. Therefore, we should develop not only our lands,
forests, mines and other natural resources but also the mental ability or faculty of our
people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35
When the Constitution speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very well used the term
natural resources, but also to the cultural heritage of the Filipinos.
66
Manila Hotel has become a landmark a living testimonial of Philippine heritage. While
it was restrictively an American hotel when it first opened in 1912, it immediately evolved
to be truly Filipino. Formerly a concourse for the elite, it has since then become the venue
of various significant events which have shaped Philippine history. It was called the
Cultural Center of the 1930's. It was the site of the festivities during the inauguration of
the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine
Government it plays host to dignitaries and official visitors who are accorded the
traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and
Memory of a City. 37 During World War II the hotel was converted by the Japanese
Military Administration into a military headquarters. When the American forces returned
to recapture Manila the hotel was selected by the Japanese together with Intramuros as
the two (2) places for their final stand. Thereafter, in the 1950's and 1960's, the hotel
became the center of political activities, playing host to almost every political convention.
In 1970 the hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel
was the site of a failed coup d'etat where an aspirant for vice-president was "proclaimed"
President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and
failures, loves and frustrations of the Filipinos; its existence is impressed with public
interest; its own historicity associated with our struggle for sovereignty, independence and
nationhood. Verily, Manila Hotel has become part of our national economy and patrimony.
For sure, 51% of the equity of the MHC comes within the purview of the constitutional
shelter for it comprises the majority and controlling stock, so that anyone who acquires or
owns the 51% will have actual control and management of the hotel. In this instance, 51%
of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents' claim that the Filipino First Policy
provision is not applicable since what is being sold is only 51% of the outstanding shares
of the corporation, not the Hotel building nor the land upon which the building stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in our Constitution
also includes corporations at least 60% of which is owned by Filipinos. This is very clear
from the proceedings of the 1986 Constitutional Commission
THE PRESIDENT.
Commissioner Davide is recognized.
MR. DAVIDE.
I would like to introduce an amendment to the Nolledo amendment. And the amendment
would consist in substituting the words "QUALIFIED FILIPINOS" with the following:
"CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE
CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS."
xxx xxx xxx
MR. MONSOD.
Madam President, apparently the proponent is agreeable, but we have to raise a
question. Suppose it is a corporation that is 80-percent Filipino, do we not give it
preference?
67
MR. DAVIDE.
The Nolledo amendment would refer to an individual Filipino. What about a corporation
wholly owned by Filipino citizens?
MR. MONSOD.
At least 60 percent, Madam President.
MR. DAVIDE.
Is that the intention?
MR MONSOD.
Yes, because, in fact, we would be limiting it if we say that the preference should only be
100-percent Filipino.
MR. DAVIDE.
I want to get that meaning clear because "QUALIFIED FILIPINOS" may refer only to
individuals and not to juridical personalities or entities.
MR. MONSOD.
We agree, Madam President. 39
xxx xxx xxx
MR. RODRIGO.
Before we vote, may I request that the amendment be read again.
MR. NOLLEDO.
The amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE
STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the proponents, will include not only individual Filipinos
but also Filipino-controlled entities or entities fully-controlled by Filipinos. 40
The phrase preference to qualified Filipinos was explained thus
MR. FOZ.
Madam President, I would like to request Commissioner Nolledo to please restate his
amendment so that I can ask a question.
MR. NOLLEDO.
"IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE
TO QUALIFIED FILIPINOS."
MR. FOZ.
68
In connection with that amendment, if a foreign enterprise is qualified and a Filipino

enterprise is also qualified, will the Filipino enterprise still be given a preference?
MR. NOLLEDO.
Obviously.
MR. FOZ.
If the foreigner is more qualified in some aspects than the Filipino enterprise, will the
Filipino still be preferred?
MR. NOLLEDO.
The answer is "yes."
MR. FOZ.
Thank you. 41
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR NOLLEDO.
Yes, Madam President. Instead of "MUST," it will be "SHALL THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." This embodies the so-called "Filipino
First" policy. That means that Filipinos should be given preference in the grant of
concessions, privileges and rights covering the national patrimony. 42
The exchange of views in the sessions of the Constitutional Commission regarding the
subject provision was still further clarified by Commissioner Nolledo 43
"Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic
concerns. It is better known as the FILIPINO FIRST Policy. . . . This provision was never
found in previous Constitutions. . . .
The term "qualified Filipinos" simply means that preference shall be given to those citizens
who can make a viable contribution to the common good, because of credible
competence and efficiency. It certainly does NOT mandate the pampering and
preferential treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counterproductive and
inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to be
made between a "qualified foreigner" and a "qualified Filipino," the latter shall be chosen
over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered by
respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by
respondent GSIS in accordance with its own guidelines so that the sole inference here is
that petitioner has been found to be possessed of proven management expertise in the
hotel industry, or it has significant equity ownership in another hotel company, or it has
an overall management and marketing proficiency to successfully operate the Manila
Hotel. 44
69
The penchant to try to whittle away the mandate of the Constitution by arguing that the
subject provision is not self-executory and requires implementing legislation is quite
disturbing. The attempt to violate a clear constitutional provision by the government
itself is only too distressing. To adopt such a line of reasoning is to renounce the duty
to ensure faithfulness to the Constitution. For, even some of the provisions of the
Constitution which evidently need implementing legislation have juridical life of their own
and can be the source of a judicial remedy. We cannot simply afford the government a
defense that arises out of the failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional
government is apt
The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts provided that there are discoverable legal
standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The responsibility
for reading and understanding the Constitution and the laws is not the sole prerogative of
Congress. If it were, the executive would have to ask Congress, or perhaps the Court, for
an interpretation every time the executive is confronted by a constitutional command. That
is not how constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to the State, not
to respondent GSIS which by itself possesses a separate and distinct personality. This
argument again is at best specious. It is undisputed that the sale of 51% of the MHC could
only be carried out with the prior approval of the State acting through respondent
Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this
fact alone makes the sale of the assets of respondents GSIS and MHC a "state action."
In constitutional jurisprudence, the acts of persons distinct from the government are
considered "state action" covered by the Constitution (1) when the activity it engages in
is a "public function;" (2) when the government is so-significantly involved with the private
actor as to make the government responsible for his action; and, (3) when the government
has approved or authorized the action. It is evident that the act of respondent GSIS in
selling 51% of its share in respondent MHC comes under the second and third categories
of "state action." Without doubt therefore the transaction, although entered into by
respondent GSIS, is in fact a transaction of the State and therefore subject to the
constitutional command. 46
When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3)
divisions of power legislative, executive and judicial. Accordingly, a constitutional
mandate directed to the State is correspondingly directed to the three (3) branches of
government. It is undeniable that in this case the subject constitutional injunction is
addressed among others to the Executive Department and respondent GSIS, a
government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the
winning bidder. The bidding rules expressly provide that the highest bidder shall only be
declared the winning bidder after it has negotiated and executed the necessary contracts,
and secured the requisite approvals. Since the Filipino First Policy provision of the
Constitution bestows preference on qualified Filipinos the mere tending of the highest bid
is not an assurance that the highest bidder will be declared the winning bidder.
Resultantly, respondents are not bound to make the award yet, nor are they under
obligation to enter into one with the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates of the 1987 Constitution the provisions
of which are presumed to be known to all the bidders and other interested parties.
70
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision

is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest
the bidding rules be nullified for being violative of the Constitution. It is a basic principle
in constitutional law that all laws and contracts must conform with the fundamental law of
the land. Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder
cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders
that have validly submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share. 47 Certainly, the constitutional mandate itself
is reason enough not to award the block of shares immediately to the foreign bidder
notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot
conceive of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national economy
and patrimony, thereby exceeding the bid of a Filipino, there is no question that the
Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino
matches the bid of a foreign firm the award should go to the Filipino. It must be so if we
are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution.
For, while this may neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign
investors. But the Constitution and laws of the Philippines are understood to be always
open to public scrutiny. These are given factors which investors must consider when
venturing into business in a foreign jurisdiction. Any person therefore desiring to do
business in the Philippines or with any of its agencies or instrumentalities is presumed to
know his rights and obligations under the Constitution and the laws of the forum
The argument of respondents that petitioner is now estopped from questioning the sale
to Renong Berhad since petitioner was well aware from the beginning that a foreigner
could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike
were invited to the bidding. But foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign
entity. In the case before us, while petitioner was already preferred at the inception of the
bidding because of the constitutional mandate, petitioner had not yet matched the bid
offered by Renong Berhad. Thus it did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the
foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid
did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps
the award has been finally made. To insist on selling the Manila Hotel to foreigners when
there is a Filipino group willing to match the bid of the foreign group is to insist that
government be treated as any other ordinary market player, and bound by its mistakes or
gross errors of judgment, regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus we would rather remedy the
indiscretion while there is still an opportunity to do so than let the government develop the
habit of forgetting that the Constitution lays down the basic conditions and parameters for
its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant
to the bidding rules, respondent GSIS is left with no alternative but to award to petitioner
the block of shares of MHC and to execute the necessary agreements and documents to
effect the sale in accordance not only with the bidding guidelines and procedures but with
71
the Constitution as well. The refusal of respondent GSIS to execute the corresponding
documents with petitioner as provided in the bidding rules after the latter has matched the
bid of the Malaysian firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987
Constitution not merely to be used as a guideline for future legislation but primarily to be
enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution
will never shun, under any reasonable circumstance, the duty of upholding the majesty of
the Constitution which it is tasked to defend. It is worth emphasizing that it is not the
intention of this Court to impede and diminish, much less undermine, the influx of foreign
investments. Far from it, the Court encourages and welcomes more business
opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this matter could
have not been more appropriately articulated by Chief Justice Narvasa
As scrupulously as it has tried to observe that it is not its function to substitute its judgment
for that of the legislature or the executive about the wisdom and feasibility of legislation
economic in nature, the Supreme Court has not been spared criticism for decisions
perceived as obstacles to economic progress and development . . . in connection with a
temporary injunction issued by the Court's First Division against the sale of the Manila
Hotel to a Malaysian Firm and its partner, certain statements were published in a major
daily to the effect that that injunction "again demonstrates that the Philippine legal system
can be a major obstacle to doing business here."
Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether they
are viable or attainable, it is its bounden duty to make sure that they do not violate the
Constitution or the laws, or are not adopted or implemented with grave abuse of discretion
amounting to lack or excess of jurisdiction. It will never shirk that duty, no matter how
buffeted by winds of unfair and ill-informed criticism. 48
Privatization of a business asset for purposes of enhancing its business viability and
preventing further losses, regardless of the character of the asset, should not take
precedence over non-material values. A commercial, nay even a budgetary, objective
should not be pursued at the expense of national pride and dignity. For the Constitution
enshrines higher and nobler non-material values. Indeed, the Court will always defer to
the Constitution in the proper governance of a free society; after all, there is nothing so
sacrosanct in any economic policy as to draw itself beyond judicial review when the
Constitution is involved. 49
Nationalism is inherent in the very concept of the Philippines being a democratic and
republican state, with sovereignty residing in the Filipino people and from whom all
government authority emanates. In nationalism, the happiness and welfare of the people
must be the goal. The nation-state can have no higher purpose. Any interpretation of any
constitutional provision must adhere to such basic concept. Protection of foreign
investments, while laudable, is merely a policy. It cannot override the demands of
nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be
sold to the highest bidder solely for the sake of privatization. We are not talking about an
ordinary piece of property in a commercial district. We are talking about a historic relic
that has hosted many of the most important events in the short history of the Philippines
as a nation. We are talking about a hotel where heads of states would prefer to be housed
as a strong manifestation of their desire to cloak the dignity of the highest state function
to their official visits to the Philippines. Thus the Manila Hotel has played and continues
to play a significant role as an authentic repository of twentieth century Philippine history
and culture. In this sense, it has become truly a reflection of the Filipino soul a place
72
with a history of grandeur; a most historical setting that has played a part in the shaping
of a country. 51 cda
This Court cannot extract rhyme nor reason from the determined efforts of respondents
to sell the historical landmark this Grand Old Dame of hotels in Asia to a total
stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to alien
hands cannot be less than mephistophelian for it is, in whatever manner viewed, a
veritable alienation of a nation's soul for some pieces of foreign silver. And so we ask:
What advantage, which cannot be equally drawn from a qualified Filipino, can be gained
by the Filipinos if Manila Hotel and all that it stands for is sold to a non-Filipino?
How much of national pride will vanish if the nation's cultural heritage is entrusted to a
foreign entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-meaning
Filipino? This is the plain and simple meaning of the Filipino First Policy provision of the
Philippine Constitution. And this Court, heeding the clarion call of the Constitution and
accepting the duty of being the elderly watchman of the nation, will continue to respect
and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM,
MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF
THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from
selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00 per
share and thereafter to execute the necessary agreements and documents to effect the
sale, to issue the necessary clearances and to do such other acts and deeds as may be
necessary for the purpose.
SO ORDERED
Regalado, Davide, Jr., Romero, Kapunan, Francisco, and Hermosisima, Jr., JJ., concur.
Narvasa, C.J., I join Justice Puno in his dissent.
Padilla, Vitug, Mendoza, and Torrens, Jr., JJ., see concuring opinion.
Puno and Panganiban, JJ., please see separate (Dissenting) opinion.
||| (Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156,
[February 3, 1997], 335 PHIL 82-154)
2. TAADA VS. ANGARA 272 SCRA 18 (1997)
EN BANC
[G.R. No. 118295. May 2, 1997.]
WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as members of the
Philippine Senate and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as
members of the House of Representatives and as taxpayers; NICANOR P. PERLAS and
HORACIO R. MORALES, both as taxpayers: CIVIL LIBERTIES UNION, NATIONAL
ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR ALTERNATIVE
DEVELOPMENT INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION, INC.,
PHILIPPINE RURAL RECONSTRUCTION MOVEMENT, DEMOKRATIKONG KILUSAN
NG MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT INSTITUTE, in
73
representation of various taxpayers and as non-governmental organizations, petitioners,

vs. EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI,
HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI
GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA MACAPAGAL-ARROYO,
ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA, SANTANINA RASUL, RAMON
REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their respective
capacities as members of the Philippine Senate who concurred in the ratification by the
President of the Philippines of the Agreement Establishing the World Trade Organization;
SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget and Management;
CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO NAVARRO,
in his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his
capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as
Secretary of Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign
Affairs; and TEOFISTO T. GUINGONA, in his capacity as Executive Secretary,
respondents.
Abelardo T . Domondon for petitioners.
The Solicitor General for respondents.
SYLLABUS
1.REMEDIAL LAW; ACTIONS; ESTOPPEL, SUBJECT TO WAIVER. The matter of
estoppel will not be taken up because this defense is waivable and the respondents have
effectively, waived it by not pursuing it in any of their pleadings; in any event, this issue,
even if ruled in respondents' favor, will not cause the petition's dismissal as there are
petitioners other than the two senators, who are not vulnerable to the defense of estoppel.
2.ID.; ID.; PARTIES; LOCUS STANDI; SUBJECT TO WAIVER. During its deliberations
on the case, the Court noted that the respondents did not question the locus standi of
petitioners. Hence, they are also deemed to have waived the benefit of such issue. They
probably realized that grave constitutional issues, expenditures of public funds and
serious international commitments of the nation are involved here, and that
transcendental public interest requires that the substantive issues be met head on and
decided on the merits, rather than skirted or deflected by procedural matters.
3.ID.; ID.; PETITION SEEKING TO NULLIFY ACT OF SENATE ON GROUND THAT IT
CONTRAVENES THE CONSTITUTION, A JUSTICIABLE QUESTION. In seeking to
nullify an act of the Philippine Senate on the ground that it contravenes the Constitution,
the petition no doubt raises a justiciable controversy. Where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute. "The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld." Once a "controversy as to the application or interpretation of a
constitutional provision is raised before this Court (as in the instant case), it becomes a
legal issue which the Court is bound by constitutional mandate to decide."
4.ID.; SUPREME COURT; JUDICIAL POWER; SCOPE. The jurisdiction of this Court
to adjudicate the matters raised in the petition is clearly set out in the 1987 Constitution,
as follows: "Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether 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."
The foregoing text emphasizes the judicial department's duty and power to strike down
grave abuse of discretion on the part of any branch or instrumentality, of government
including Congress. It is an innovation in our political law. As explained by former Chief
Justice Roberto Concepcion, "the judiciary is the final arbiter on the question of whether
74
or not a branch of government or any of its officials has acted without jurisdiction or in
excess of jurisdiction or so capriciously, as to constitute an abuse of discretion amounting
to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on
matters of this nature." As this Court has repeatedly and firmly emphasized in many
cases, it will not shirk, digress from or abandon its sacred duty and authority to uphold
the Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or department of the
government.
5.ID.; SPECIAL CIVIL ACTIONS; CERTIORARI, PROHIBITION AND MANDAMUS;
APPROPRIATE REMEDIES TO REVIEW ACTS OF LEGISLATIVE AND EXECUTIVE
OFFICIALS. Certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative
and executive officials.
6.POLITICAL LAW; CONSTITUTION; DECLARATION OF PRINCIPLES AND STATE
POLICIES; AIDS OR GUIDES IN THE EXERCISE OF JUDICIAL AND LEGISLATIVE
POWERS. By its very title, Article II of the Constitution is a "declaration of principles
and state policies." The counterpart of this article in the 1935 Constitution is called the
"basic political creed of the nation" by Dean Vicente Sinco. These principles in Article II
are not intended to be self-executing principles ready for enforcement through the courts.
They are used by the judiciary as aids or as guides in the exercise of its power of judicial
review, and by the legislature in its enactment of laws. As held in the leading case of
Kilosbayan, Incorporated vs. Morato, the principles and state policies enumerated in
Article II and some sections of Article XII are not "self-executing provisions, the disregard
of which can give rise to a cause of action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for legislation."
7.ID.; ID.; THOUGH IT MANDATES A BIAS IN FAVOR OF FILIPINO GOODS,
SERVICES, LABOR AND ENTERPRISES, IT RECOGNIZES THE NEED FOR
BUSINESS EXCHANGE WITH THE REST OF THE WORLD. While the Constitution
indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the
same time, it recognizes the need for business exchange with the rest of the world on the
bases of equality and reciprocity and limits protection of Filipino enterprises only against
foreign competition and trade practices that are unfair. In other words, the Constitution
did not intend to pursue an isolationist policy. It did not shut out foreign investments,
goods and services in the development of the Philippine economy. While the Constitution
does not encourage the unlimited entry of foreign goods, services and investments into
the country, it does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.
8.REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; JOINING THE WORLD
TRADE ORGANIZATION, NOT A GRAVE ABUSE OF DISCRETION. The basic
principles underlying the WTO Agreement recognize the need of developing countries
like the Philippines to "share in the growth in international trade commensurate with the
needs of their economic development." GATT has provided built-in protection from unfair
foreign competition and trade practices including anti-dumping measures, countervailing
measures and safeguards against import surges. Where local businesses are jeopardized
by unfair foreign competition, the Philippines can avail of these measures. There is hardly
therefore any basis for the statement that under the WTO, local industries and enterprises
will all be wiped out and that Filipinos will be deprived of control of the economy. Quite
the contrary, the weaker situations of developing nations like the Philippines have been
taken into account; thus, there would be no basis to say that in joining the WTO, the
respondents have gravely abused their discretion. True, they have made a bold decision
to steer the ship of state into the yet uncharted sea of economic liberalization. But such
decision cannot be set aside on the ground of grave abuse of discretion simply because
we disagree with it or simply because we believe only in other economic policies. As
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earlier stated, the Court in taking jurisdiction of this case will not pass upon the
advantages and disadvantages of trade liberalization as an economic policy. It will only,
perform its constitutional duty of determining whether the Senate committed grave abuse
of discretion.
9.POLITICAL LAW; CONSTITUTION; DECLARATION OF PRINCIPLES AND STATE
POLICIES; POLICY OF "SELF-RELIANT AND INDEPENDENT NATIONAL ECONOMY"
DOES NOT RULE OUT ENTRY OF FOREIGN INVESTMENTS, GOODS AND
SERVICES. The constitutional policy of a "self-reliant and independent national
economy" does not necessarily rule out the entry, of foreign investments, goods and
services. It contemplates neither "economic seclusion" nor "mendicancy in the
international community."
10.POLITICAL
LAW;
INTERNATIONAL
LAW;
WORLD
TRADE
LAW
ORGANIZATION/GENERAL AGREEMENT ON TARIFFS AND TRADE; RELIANCE ON
"MOST FAVORED NATIONS", CONSTITUTIONAL. The WTO reliance on "most
favored nation", "national treatment", and "trade without discrimination" cannot be struck
down as unconstitutional as in fact they are rules of equality and reciprocity, that apply to
all WTO members. Aside from envisioning a trade policy based on "equality and
reciprocal", the fundamental law encourages industries that are "competitive in both
domestic and foreign markets," thereby demonstrating a clear policy against a sheltered
domestic trade environment, but one in favor of the gradual development of robust
industries that can compete with the best in the foreign markets. Indeed, Filipino
managers and Filipino enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino entrepreneurs and managers
in Hongkong have demonstrated the Filipino capacity to grow and to prosper against the
best offered under a policy of laissez faire.
11.REMEDIAL LAW; ACTIONS; QUESTIONS INVOLVING "JUDGMENT CALLS", NOT

SUBJECT TO JUDICIAL REVIEW. Will adherence to the WTO treaty bring this ideal
(of favoring the general welfare) to reality? Will WTO/GATT succeed in promoting the
Filipinos' general welfare because it will as promised by its promoters expand the
country's exports and generate more employment? Will it bring more prosperity,
employment, purchasing power and quality products at the most reasonable rates to the
Filipino public? The responses to these questions involve "judgment calls" by our policy
makers, for which they are answerable to our people during appropriate electoral
exercises. Such questions and the answers thereto are not subject to judicial
pronouncements based on grave abuse of discretion.
12.POLITICAL LAW; SOVEREIGNTY; SUBJECT TO RESTRICTIONS AND
LIMITATIONS VOLUNTARILY AGREED TO BY THE STATE; CASE AT BAR. While
sovereignty has traditionally been deemed absolute and all-encompassing on the
domestic level, it is however subject to restrictions and limitations voluntarily agreed to by
the Philippines, expressly or impliedly, as a member of the family of nations. In its
Declaration of Principles and State Policies, the Constitution "adopts the generally
accepted principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity, with all nations." By the
doctrine of incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own laws. One of
the oldest and most fundamental rules in international law is pacta sunt servanda
international agreements must be performed in good faith. "A treaty engagement is not a
mere moral obligation but creates a legally binding obligation on the parties . . . A state
which has contracted valid international obligations is bound to make in its legislations
such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken."
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13.ID.; ID.; ID.; ID. When the Philippines joined the United Nations as one of its 51
charter members, it consented to restrict its sovereign rights under the "concept of
sovereignty as auto-limitation." Under Article 2 of the UN Charter, "(a)ll members shall
give the United Nations every assistance in any action it takes in accordance with the
present Charter, and shall refrain from giving assistance to any state against which the
United Nations is taking preventive or enforcement action." Apart from the UN Treaty, the
Philippines has entered into many other international pacts both bilateral and
multilateral that involve limitations on Philippine sovereignty the Philippines has
effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain
and police power. The underlying consideration in this partial surrender of sovereignty is
the reciprocal commitment of the other contracting states in granting the same privilege
and immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine commitments under WTO-GATT. The point is that, as shown
by the foregoing treaties, a portion of sovereignty may be waived without violating the
Constitution, based on the rationale that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of .
. . cooperation and amity with all nations."
14.ID.; ID.; ID.; WORLD TRADE ORGANIZATION; PARAGRAPH 1, ARTICLE 34 OF
THE GENERAL PROVISIONS AND BASIC PRINCIPLES OF THE AGREEMENT ON
TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS);
DOES NOT INTRUDE ON THE POWER OF THE SUPREME COURT TO
PROMULGATE RULES ON PLEADING, PRACTICE AND PROCEDURES.
Petitioners aver that paragraph 1, Article 34 (Process Patents: Burden of Proof) of the
General Provisions and Basic Principles of the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) intrudes on the power of the Supreme Court to
promulgate rules concerning pleading, practice and procedures. A WTO Member is
required to provide a rule of disputable (note the words "in the absence of proof to the
contrary") presumption that a product shown to be identical to one produced with the use
of a patented process shall be deemed to have been obtained by the (illegal) use of the
said patented process, (1) where such product obtained by the patented product is new,
or (2) where there is "substantial likelihood" that the identical product was made with the
use of the said patented process but the owner of the patent could not determine the
exact process used in obtaining such identical product. Hence, the "burden of proof"
contemplated by Article 34 should actually be understood as the duty of the alleged patent
infringer to overthrow such presumption. Such burden, properly understood, actually
refers to the "burden of evidence" (burden of going forward) placed on the producer of
the identical (or fake) product to show that his product was produced without the use of
the patented process. The foregoing notwithstanding, the patent owner still has the
"burden of proof" since, regardless of the presumption provided under paragraph 1 of
Article 34, such owner still has to introduce evidence of the existence of the alleged
identical product, the fact that it is "identical" to the genuine one produced by the patented
process and the fact of "newness" of the genuine product was made by the patented
process. Moreover, it should be noted that the requirement of Article 34 to provide a
disputable presumption applies only if (1) the product obtained by the patented process
is NEW or (2) there is a substantial likelihood that the identical product was made by the
process and the process owner has not been able through reasonable effort to determine
the process used. Where either of these two provisos does not obtain, members shall be
free to determine the appropriate method of implementing the provisions of TRIPS within
their own internal systems and processes. By and large, the arguments adduced in
connection with our disposition of the third issue derogation of a legislative power
will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than
justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with due process and the concept of adversarial
dispute settlement inherent in our judicial system. So too, since the Philippine is a
77
signatory to most international conventions on patents, trademarks and copyrights, the

adjustments in legislation and rules of procedure will not be substantial.
15.ID.; ID.; ID.; ID.; MINISTERIAL DECLARATION AND DECISIONS AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES, NOT SUBJECT
TO CONCURRENCE BY THE SENATE. "A final act, sometimes called protocol de
cloture, is an instrument which records the winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of the texts of treaties, conventions,
recommendations and other acts agreed upon and signed by the plenipotentiaries
attending the conference." It is not the treaty itself. It is rather a summary of the
proceedings of a protracted conference which may have taken place over several years.
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final
Act required from its signatories, namely, concurrence of the Senate in the WTO
Agreement. The Ministerial Declarations and Decisions were deemed adopted without
need for ratification. They were approved by the ministers by virtue of Article XXV: 1 of
GATT which provides that representatives of the members can meet "to give effect to
those provision of this Agreement which invoke joint action, and generally with a view to
facilitating the operation and furthering the objectives of this Agreement." The
Understanding on Commitments in Financial Services also approved in Marrakesh does
not apply to the Philippines. It applies only to those 27 Members which "have indicated in
their respective schedules of commitments on standstill, elimination of monopoly,
expansion of operation of existing financial service suppliers, temporary entry of
personnel, free transfer and processing of information, and national treatment with
respect to access to payment, clearing systems and refinancing available in the normal
course of business."
16.REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; RESORT THERETO ON
GROUND OF GRAVE ABUSE OF DISCRETION AVAILABLE ONLY WHERE THERE IS
NO PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF
LAW. Procedurally. a writ of certiorari grounded on grave abuse of discretion may be
issued by the Court under Rule 65 of the Rules of Court when it is amply shown that
petitioners have no other plain, speedy and adequate remedy in the ordinary course of
law.
17.ID.; ID.; ID.; GRAVE ABUSE OF DISCRETION, CONSTRUED. By grave abuse of
discretion is meant such capricious and whimsical exercise of judgment as is equivalent
to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic manner by reason
of passion or personal hostility, and must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty, enjoined or to act at
all in contemplation of law. Failure on the part of the petitioner to show grave abuse of
discretion will result in the dismissal of the petition.
18.ID.; ID.; ID.; CONCURRENCE BY THE SENATE IN THE WORLD TRADE
ORGANIZATION, NOT A GRAVE ABUSE OF DISCRETION. In rendering this
Decision, this Court never forgets that the Senate, whose act is under review, is one of
two sovereign houses of Congress and is thus entitled to great respect in its actions. It is
itself a constitutional body independent and coordinate, and thus its actions are presumed
regular and done in good faith. Unless convincing proof and persuasive arguments are
presented to overthrow such presumptions, this Court will resolve every doubt in its favor.
Using the foregoing well-accepted definition of grave abuse of discretion and the
presumption of regularity in the Senate's processes, this Court cannot find any cogent
reason to impute grave abuse of discretion to the Senate's exercise of its power of
concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its
consent to the WTO Agreement thereby making it "a part of the law of the land" is a
legitimate exercise of its sovereign duty and power. We find no "patent and gross"
78
arbitrariness or despotism "by reason of passion or personal hostility" in such exercise. It

is not impossible to surmise that this Court, or at least some of its members, may even
agree with petitioners that it is more advantageous to the national interest to strike down
Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of
discretion to the Senate and to nullify its decision. To do so would constitute grave abuse
in the exercise of our own judicial power and duty. Ineludably, what the Senate did was a
valid exercise of its authority. As to whether such exercise was wise, beneficial or viable
is outside the realm of judicial inquiry and review. That is a matter between the elected
policy makers and the people. As to whether the nation should join the worldwide march
toward trade liberalization and economic globalization is a matter that our people should
determine in electing their policy makers. After all, the WTO Agreement allows withdrawal
of membership, should this be the political desire of a member.
DECISION
PANGANIBAN, J p:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the
membership thereto of the vast majority of countries, has revolutionized international
business and economic relations amongst states. It has irreversibly propelled the world
towards trade liberalization and economic globalization. Liberalization, globalization,
deregulation and privatization, the third-millennium buzz words, are ushering in a new
borderless world of business by sweeping away as mere historical relics the heretofore
traditional modes of promoting and protecting national economies like tariffs, export
subsidies, import quotas, quantitative restrictions, tax exemptions and currency controls.
Finding market niches and becoming the best in specific industries in a market-driven and
export-oriented global scenario are replacing age-old "beggar-thy-neighbor" policies that
unilaterally protect weak and inefficient domestic producers of goods and services. In the
words of Peter Drucker, the well-known management guru, "Increased participation in the
world economy has become the key to domestic economic growth and prosperity." prll
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World War,
plans for the establishment of three multilateral institutions inspired by that grand
political body, the United Nations were discussed at Dumbarton Oaks and Bretton
Woods. The first was the World Bank (WB) which was to address the rehabilitation and
reconstruction of war-ravaged and later developing countries; the second, the
International Monetary Fund (IMF) which was to deal with currency problems; and the
third, the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies that invite
challenge, even retaliation, from other states. However, for a variety of reasons, including
its non-ratification by the United States, the ITO, unlike the IMF and WB, never took off.
What remained was only GATT the General Agreement on Tariffs and Trade. GATT
was a collection of treaties governing access to the economies of treaty adherents with
no institutionalized body administering the agreements or dependable system of dispute
settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy
Round, the Tokyo Round and the Uruguay Round, the world finally gave birth to that
administering body the World Trade Organization with the signing of the "Final Act"
in Marrakesh, Morocco and the ratification of the WTO Agreement by its members. 1 1a
1b 1c
Like many other developing countries, the Philippines joined WTO as a founding member
with the goal, as articulated by President Fidel V. Ramos in two letters to the Senate
79
(infra), of improving "Philippine access to foreign markets, especially its major trading
partners, through the reduction of tariffs on its exports, particularly agricultural and
industrial products." The President also saw in the WTO the opening of "new opportunities
for the services sector . . ., (the reduction of) costs and uncertainty associated with
exporting . . ., and (the attraction of) more investments into the country." Although the
Chief Executive did not expressly mention it in his letter, the Philippines and this is of
special interest to the legal profession will benefit from the WTO system of dispute
settlement by judicial adjudication through the independent WTO settlement bodies called
(1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofore, trade disputes were
settled mainly through negotiations where solutions were arrived at frequently on the
basis of relative bargaining strengths, and where naturally, weak and underdeveloped
countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products
of member-countries on the same footing as Filipinos and local products" and (2) that the
WTO "intrudes, limits and/or impairs" the constitutional powers of both Congress and the
Supreme Court, the instant petition before this Court assails the WTO Agreement for
violating the mandate of the 1987 Constitution to "develop a self-reliant and independent
national economy effectively controlled by Filipinos . . . (to) give preference to qualified
Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and
locally produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine participation in
worldwide trade liberalization and economic globalization? Does it proscribe Philippine
integration into a global economy that is liberalized, deregulated and privatized? These
are the main questions raised in this petition for certiorari, prohibition and mandamus
under Rule 65 of the Rules of Court praying (1) for the nullification, on constitutional
grounds, of the concurrence of the Philippine Senate in the ratification by the President
of the Philippines of the Agreement Establishing the World Trade Organization (WTO
Agreement, for brevity) and (2) for the prohibition of its implementation and enforcement
through the release and utilization of public funds, the assignment of public officials and
employees, as well as the use of government properties and resources by respondentheads of various executive offices concerned therewith. This concurrence is embodied in
Senate Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of the Department of
Trade and Industry (Secretary Navarro, for brevity), representing the Government of the
Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the
Results of the Uruguay Round of Multilateral Negotiations (Final Act, for brevity).
By signing the Final Act, 2 Secretary Navarro on behalf of the Republic of the Philippines,
agreed:
"(a)to submit, as appropriate, the WTO Agreement for the consideration of their respective
competent authorities, with a view to seeking approval of the Agreement in accordance
with their procedures; and
(b)to adopt the Ministerial Declarations and Decisions."
On August 12, 1994, the members of the Philippine Senate received a letter dated August
11, 1994 from the President of the Philippines, 3 stating among others that "the Uruguay
Round Final Act is hereby submitted to the Senate for its concurrence pursuant to Section
21, Article VII of the Constitution." cdta
80
On August 13, 1994, the members of the Philippine Senate received another letter from
the President of the Philippines 4 likewise dated August 11, 1994, which stated among
others that "the Uruguay Round Final Act, the Agreement Establishing the World Trade
Organization, the Ministerial Declarations and Decisions, and the Understanding on
Commitments in Financial Services are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution."
On December 9, 1994, the President of the Philippines certified the necessity of the
immediate adoption of P.S. 1083, a resolution entitled "Concurring in the Ratification of
the Agreement Establishing the World Trade Organization." 5
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which
"Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in the
ratification by the President of the Philippines of the Agreement Establishing the World
Trade Organization." 6 The text of the WTO Agreement is written on pages 137 et seq.
of Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and
includes various agreements and associated legal instruments (identified in the said
Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral Trade
Agreements, for brevity) as follows:
"ANNEX I
Annex 1A:Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and Phytosanitary
Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994
Agreement on Implementation of Article VII of the General
on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B:General Agreement on Trade in Services and Annexes
81
Annex 1C:Agreement on Trade-Related Aspects of Intellectual

Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing the
Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism"
On December 16, 1994, the President of the Philippines signed 7 the Instrument of
Ratification, declaring:
"NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of
the Philippines, after having seen and considered the aforementioned Agreement
Establishing the World Trade Organization and the agreements and associated legal
instruments included in Annexes one (1), two (2) and three (3) of that Agreement which
are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do hereby
ratify and confirm the same and every Article and Clause thereof."
To emphasize, the WTO Agreement ratified by the President of the Philippines is
composed of the Agreement Proper and "the associated legal instruments included in
Annexes one (1), two (2) and three (3) of that Agreement which are integral parts thereof."
On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO
Agreement (and its integral annexes aforementioned) but also (1) the Ministerial
Declarations and Decisions and (2) the Understanding on Commitments in Financial
Services. In his Memorandum dated May 13, 1996, 8 the Solicitor General describes
these two latter documents as follows:
"The Ministerial Decisions and Declarations are twenty-five declarations and decisions on
a wide range of matters, such as measures in favor of least developed countries,
notification procedures, relationship of WTO with the International Monetary Fund (IMF),
and agreements on technical barriers to trade and on dispute settlement.
The Understanding on Commitments in Financial Services dwell on, among other things,
standstill or limitations and qualifications of commitments to existing non-conforming
measures, market access, national treatment, and definitions of non-resident supplier of
financial services, commercial presence and new financial service." cdti
On December 29, 1994, the present petition was filed. After careful deliberation on
respondents' comment and petitioners' reply thereto, the Court resolved on December
12, 1995, to give due course to the petition, and the parties thereafter filed their respective
memoranda. The Court also requested the Honorable Lilia R. Bautista, the Philippine
Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a paper,
hereafter referred to as "Bautista Paper," 9 for brevity, (1) providing a historical
background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
82
"(a)the petitioners to submit the (1) Senate Committee Report on the matter in controversy
and (2) the transcript of proceedings/hearings in the Senate; and
(b)the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties
signed prior to the Philippine adherence to the WTO Agreement, which derogate from
Philippine sovereignty and (2) copies of the multi-volume WTO Agreement and other
documents mentioned in the Final Act, as soon as possible."
After receipt of the foregoing documents, the Court said it would consider the case
submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor
General submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated October 24, 1996, he listed the various
"bilateral or multilateral treaties or international instruments involving derogation of
Philippine sovereignty." Petitioners, on the other hand, submitted their Compliance dated
January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as
follows:
"A.Whether the petition presents a political question or is otherwise not justiciable.
B.Whether the petitioner members of the Senate who participated in the deliberations and
voting leading to the concurrence are estopped from impugning the validity of the
Agreement Establishing the World Trade Organization or of the validity or of the
concurrence.
C.Whether the provisions of the Agreement Establishing the World Trade Organization
contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the
1987 Philippine Constitution.
D.Whether provisions of the Agreement Establishing the World Trade Organization
unduly limit, restrict and impair Philippine sovereignty specifically the legislative power
which, under Sec. 2, Article VI, 1987 Philippine Constitution is 'vested in the Congress of
the Philippines';
E.Whether provisions of the Agreement Establishing the World Trade Organization
interfere with the exercise of judicial power.
F.Whether the respondent members of the Senate acted in grave abuse of discretion
amounting to lack or excess of jurisdiction when they voted for concurrence in the
ratification of the constitutionally-infirm Agreement Establishing the World Trade
Organization.
G.Whether the respondent members of the Senate acted in grave abuse of discretion
amounting to lack or excess of jurisdiction when they concurred only in the ratification of
the Agreement Establishing the World Trade Organization, and not with the Presidential
submission which included the Final Act, Ministerial Declaration and Decisions, and the
Understanding on Commitments in Financial Services."
On the other hand, the Solicitor General as counsel for respondents "synthesized the
several issues raised by petitioners into the following": 10
"1.Whether or not the provisions of the 'Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in Annexes
one (1), two (2) and three (3) of that agreement' cited by petitioners directly contravene
83
or undermine the letter, spirit and intent of Section 19, Article II and Sections 10 and 12,
Article XII of the 1987 Constitution.
2.Whether or not certain provisions of the Agreement unduly limit, restrict or impair the
exercise of legislative power by Congress.
3.Whether or not certain provisions of the Agreement impair the exercise of judicial power
by this Honorable Court in promulgating the rules of evidence.
4.Whether or not the concurrence of the Senate 'in the ratification by the President of the
Philippines of the Agreement establishing the World Trade Organization' implied rejection
of the treaty embodied in the Final Act."
By raising and arguing only four issues against the seven presented by petitioners, the
Solicitor General has effectively ignored three, namely: (1) whether the petition presents
a political question or is otherwise not justiciable; (2) whether petitioner-members of the
Senate (Wigberto E. Taada and Anna Dominique Coseteng) are estopped from joining
this suit; and (3) whether the respondent-members of the Senate acted in grave abuse of
discretion when they voted for concurrence in the ratification of the WTO Agreement. The
foregoing notwithstanding, this Court resolved to deal with these three issues thus: cdt
(1)The "political question" issue being very fundamental and vital, and being a matter
that probes into the very jurisdiction of this Court to hear and decide this case was
deliberated upon by the Court and will thus be ruled upon as the first issue;
(2)The matter of estoppel will not be taken up because this defense is waivable and the
respondents have effectively waived it by not pursuing it in any of their pleadings; in any
event, this issue, even if ruled in respondents' favor, will not cause the petition's dismissal
as there are petitioners other than the two senators, who are not vulnerable to the defense
of estoppel; and
(3)The issue of alleged grave abuse of discretion on the part of the respondent senators
will be taken up as an integral part of the disposition of the four issues raised by the
Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not question
the locus standi of petitioners. Hence, they are also deemed to have waived the benefit
of such issue. They probably realized that grave constitutional issues, expenditures of
public funds and serious international commitments of the nation are involved here, and
that transcendental public interest requires that the substantive issues be met head on
and decided on the merits, rather than skirted or deflected by procedural matters. 11
To recapitulate, the issues that will be ruled upon shortly are:
(1)DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE
STATED, DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH
THIS COURT HAS NO JURISDICTION?
(2)DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE
PHILIPPINE CONSTITUTION?
(3)DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?
(4)DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE
OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?
84
(5)WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS
ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE
THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute. "The question thus
posed is judicial rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld." 12 Once a "controversy as to the application or
interpretation of a constitutional provision is raised before this Court (as in the instant
case), it becomes a legal issue which the Court is bound by constitutional mandate to
decide." 13
The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly
set out in the 1987 Constitution, 15 as follows:
"Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
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."
The foregoing text emphasizes the judicial department's duty and power to strike down
grave abuse of discretion on the part of any branch or instrumentality of government
including Congress. It is an innovation in our political law. 16 As explained by former Chief
Justice Roberto Concepcion, 17 "the judiciary is the final arbiter on the question of
whether or not a branch of government or any of its officials has acted without jurisdiction
or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature."
As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in matters
that involve grave abuse of discretion brought before it in appropriate cases, committed
by any officer, agency, instrumentality or department of the government. LibLex
As the petition alleges grave abuse of discretion and as there is no other plain, speedy or
adequate remedy in the ordinary course of law, we have no hesitation at all in holding
that this petition should be given due course and the vital questions raised therein ruled
upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition and mandamus
are appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials. On this, we have
no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will not
review the wisdom of the decision of the President and the Senate in enlisting the country
into the WTO, or pass upon the merits of trade liberalization as a policy espoused by said
international body. Neither will it rule on the propriety of the government's economic policy
of reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other
import/trade barriers. Rather, it will only exercise its constitutional duty "to determine
whether or not there had been a grave abuse of discretion amounting to lack or excess
85
of jurisdiction" on the part of the Senate in ratifying the WTO Agreement and its three
annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating
"economic nationalism" are violated by the so-called "parity provisions" and "national
treatment" clauses scattered in various parts not only of the WTO Agreement and its
annexes but also in the Ministerial Decisions and Declarations and in the Understanding
on Commitments in Financial Services.
Specifically, the "flagship" constitutional provisions referred to are Sec. 19, Article II, and
Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:
"Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xxx xxx xxx
Sec. 19.The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.
xxx xxx xxx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xxx xxx xxx
Sec. 10. . . The Congress shall enact measures that will encourage the formation and
operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
Sec. 12.The State shall promote the preferential use of Filipino labor, domestic materials
and locally produced goods, and adopt measures that help make them competitive."
Petitioners aver that these sacred constitutional principles are desecrated by the following
WTO provisions quoted in their memorandum: 19
"a)In the area of investment measures related to trade in goods (TRIMS, for brevity):
"Article 2
National Treatment and Quantitative Restrictions.
1.Without prejudice to other rights and obligations under GATT 1994. No Member shall
apply any TRIM that is inconsistent with the provisions of Article III or Article XI of GATT
1994.
86
2.An Illustrative list of TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph I of Article XI of GATT
1994 is contained in the Annex to this Agreement." (Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay Round, Legal Instruments, p. 22121, emphasis
supplied).
The Annex referred to reads as follows:
"ANNEX
Illustrative List
1.TRIMS that are inconsistent with the obligation of national treatment provided for in
paragraph 4 of Article III of GATT 1994 include those which are mandatory or enforceable
under domestic law or under administrative rulings, or compliance with which is necessary
to obtain an advantage, and which require:
(a)the purchase or use by an enterprise of products of domestic origin or from any
domestic source, whether specified in terms of particular products, in terms of volume or
value of products, or in terms of proportion of volume or value of its local production; or
(b)that an enterprise's purchases or use of imported products be limited to an amount
related to the volume or value of local products that it exports. LLjur
2.TRIMS that are inconsistent with the obligations of general elimination of quantitative
restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which
are mandatory or enforceable under domestic laws or under administrative rulings, or
compliance with which is necessary to obtain an advantage, and which restrict:
(a)the importation by an enterprise of products used in or related to the local production
that it exports;
(b)the importation by an enterprise of products used in or related to its local production
by restricting its access to foreign exchange inflows attributable to the enterprise; or
(c)the exportation or sale for export specified in terms of particular products, in terms of
volume or value of products, or in terms of a preparation of volume or value of its local
production." (Annex to the Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round Legal Documents, p. 22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any
other contracting party shall be accorded treatment no less favorable than that accorded
to like products of national origin in respect of laws, regulations and requirements
affecting their internal sale, offering for sale, purchase, transportation, distribution or use.
The provisions of this paragraph shall not prevent the application of differential internal
transportation charges which are based exclusively on the economic operation of the
means of transport and not on the nationality of the product." (Article III, GATT 1947, as
amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14 September
1948, 62 UMTS 82-84 in relation to paragraph 1 (a) of the General Agreement on Tariffs
and Trade 1994, Vol. 1, Uruguay Round, Legal Instruments p. 177, emphasis supplied).
"b)In the area of trade-related aspects of intellectual property rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection of
87
intellectual property . . . (par. 1, Article 3, Agreement on Trade-Related Aspect of

Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432
(emphasis supplied)
"(c)In the area of the General Agreement on Trade in Services:
National Treatment
1.In the sectors inscribed in its schedule, and subject to any conditions and qualifications
set out therein, each Member shall accord to services and service suppliers of any other
Member, in respect of all measures affecting the supply of services, treatment no less
favourable than it accords to its own like services and service suppliers.
2.A Member may meet the requirement of paragraph I by according to services and
service suppliers of any other Member, either formally identical treatment or formally
different treatment to that it accords to its own like services and service suppliers.
3.Formally identical or formally different treatment shall be considered to be less
favourable if it modifies the conditions of completion in favour of services or service
suppliers of the Member compared to like services or service suppliers of any other
Member. (Article XVII, General Agreement on Trade in Services, Vol. 28, Uruguay Round
Legal Instruments, p. 22610 emphasis supplied)."
It is petitioners' position that the foregoing "national treatment" and "parity provisions" of
the WTO Agreement "place nationals and products of member countries on the same
footing as Filipinos and local products," in contravention of the "Filipino First" policy of the
Constitution. They allegedly render meaningless the phrase "effectively controlled by
Filipinos." The constitutional conflict becomes more manifest when viewed in the context
of the clear duty imposed on the Philippines as a WTO member to ensure the conformity
of its laws, regulations and administrative procedures with its obligations as provided in
the annexed agreements. 20 Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and negate the
preferential treatment accorded to Filipino labor, domestic materials and locally produced
goods.
On the other hand, respondents through the Solicitor General counter (1) that such
Charter provisions are not self-executing and merely set out general policies; (2) that
these nationalistic portions of the Constitution invoked by petitioners should not be read
in isolation but should be related to other relevant provisions of Art. XII, particularly Secs.
1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with the
Constitution; and (4) that the WTO Agreement contains sufficient provisions to protect
developing countries like the Philippines from the harshness of sudden trade
liberalization. LLphil
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of principles and state
policies." The counterpart of this article in the 1935 Constitution 21 is called the "basic
political creed of the nation" by Dean Vicente Sinco. 22 These principles in Article II are
not intended to be self-executing principles ready for enforcement through the courts. 23
They are used by the judiciary as aids or as guides in the exercise of its power of judicial
review, and by the legislature in its enactment of laws. As held in the leading case of
Kilosbayan, Incorporated vs. Morato, 24 the principles and state policies enumerated in
Article II and some sections of Article XII are not "self-executing provisions, the disregard
of which can give rise to a cause of action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for legislation."
88
In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need
legislative enactments to implement them, thus:
"On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12
(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and
Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to state
also that these are merely statements of principles and policies. As such, they are
basically not self-executing, meaning a law should be passed by Congress to clearly
define and effectuate such principles.
'In general, therefore, the 1935 provisions were not intended to be self-executing
principles ready for enforcement through the courts. They were rather directives
addressed to the executive and to the legislature. If the executive and the legislature failed
to heed the directives of the article, the available remedy was not judicial but political. The
electorate could express their displeasure with the failure of the executive and the
legislature through the language of the ballot. (Bernas, Vol. II, p. 2)."
The reasons for denying a cause of action to an alleged infringement of broad
constitutional principles are sourced from basic considerations of due process and the
lack of judicial authority to wade "into the uncharted ocean of social and economic policy
making." Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa vs.
Factoran, Jr., 26 explained these reasons as follows:
"My suggestion is simply that petitioners must, before the trial court, show a more specific
legal right a right cast in language of a significantly lower order of generality than Article
II (15) of the Constitution that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court can validly render
judgment granting all or part of the relief prayed for. To my mind, the court should be
understood as simply saying that such a more specific legal right or rights may well exist
in our corpus of law, considering the general policy principles found in the Constitution
and the existence of the Philippine Environment Code, and that the trial court should have
given petitioners an effective opportunity so to demonstrate, instead of aborting the
proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause
of action be a specific, operable legal right, rather than a constitutional or statutory policy,
for at least two (2) reasons. One is that unless the legal right claimed to have been
violated or disregarded is given specification in operational terms, defendants may well
be unable to defend themselves intelligently and effectively; in other words, there are due
process dimensions to this matter.
The second is a broader-gauge consideration where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall back on
the expanded conception of judicial power in the second paragraph of Section 1 of Article
VIII of the Constitution which reads:
'Section 1.. . .
Judicial power includes the duty of the courts of justice to settle actual controversies
jurisdiction on the part of any branch or instrumentality of the Government.' (Emphases
supplied)
89
When substantive standards as general as 'the right to a balanced and healthy ecology'
and 'the right to health' are combined with remedial standards as broad ranging as 'a
grave abuse of discretion amounting to lack or excess of jurisdiction,' the result will be, it
is respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience
and professional qualification. Where no specific, operable norms and standards are
shown to exist, then the policy making departments the legislative and executive
departments must be given a real and effective opportunity to fashion and promulgate
those norms and standards, and to implement them before the courts should intervene."
cdasia
Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general
principles relating to the national economy and patrimony, should be read and understood
in relation to the other sections in said article, especially Secs. 1 and 13 thereof which
read:
"Section 1.The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural
development and agrarian reform, through industries that make full and efficient use of
human and natural resources, and which are competitive in both domestic and foreign
markets. However, the State shall protect Filipino enterprises against unfair foreign
competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. . .
xxx xxx xxx
Sec. 13.The State shall pursue a trade policy that serves the general welfare and utilizes
all forms and arrangements of exchange on the basis of equality and reciprocity."
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national
economic development, as follows:
1.A more equitable distribution of opportunities, income and wealth;
2.A sustained increase in the amount of goods and services provided by the nation for
the benefit of the people; and
3.An expanding productivity as the key to raising the quality of life for all especially the
underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic
nationalism (1) by expressing preference in favor of qualified Filipinos "in the grant of
rights, privileges and concessions covering the national economy and patrimony" 27 and
in the use of "Filipino labor, domestic materials and locally-produced goods"; (2) by
mandating the State to "adopt measures that help make them competitive; 28 and (3) by
requiring the State to "develop a self-reliant and independent national economy effectively
controlled by Filipinos." 29 In similar language, the Constitution takes into account the
90
realities of the outside world as it requires the pursuit of "a trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange on the basis of
equality and reciprocity"; 30 and speaks of industries "which are competitive in both
domestic and foreign markets" as well as of the protection of "Filipino enterprises against
unfair foreign competition and trade practices."
It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance
System, et al., 31 this Court held that "Sec. 10, second par., Art. XII of the 1987
Constitution is a mandatory, positive command which is complete in itself and which
needs no further guidelines or implementing laws or rules for its enforcement. From its
very words the provision does not require any legislation to put it in operation. It is per se
judicially enforceable." However, as the constitutional provision itself states, it is
enforceable only in regard to "the grants of rights, privileges and concessions covering
national economy and patrimony" and not to every aspect of trade and commerce. It
refers to exceptions rather than the rule. The issue here is not whether this paragraph of
Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there
are enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services,
labor and enterprises, at the same time, it recognizes the need for business exchange
with the rest of the world on the bases of equality and reciprocity and limits protection of
Filipino enterprises only against foreign competition and trade practices that are unfair.
32 In other words, the Constitution did not intend to pursue an isolationist policy. It did not
shut out foreign investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them either. In fact, it allows
an exchange on the basis of equality and reciprocity, frowning only on foreign competition
that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in
advantages to protect weak and developing economies, which comprise the vast majority
of its members. Unlike in the UN where major states have permanent seats and veto
powers in the Security Council, in the WTO, decisions are made on the basis of sovereign
equality, with each member's vote equal in weight to that of any other. There is no WTO
equivalent of the UN Security Council. aisadc
"WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial
Conference and the General Council shall be taken by the majority of the votes cast,
except in cases of interpretation of the Agreement or waiver of the obligation of a member
which would require three fourths vote. Amendments would require two thirds vote in
general. Amendments to MFN provisions and the Amendments provision will require
assent of all members. Any member may withdraw from the Agreement upon the
expiration of six months from the date of notice of withdrawals." 33
Hence, poor countries can protect their common interests more effectively through the
WTO than through one-on-one negotiations with developed countries. Within the WTO,
developing countries can form powerful blocs to push their economic agenda more
decisively than outside the Organization. This is not merely a matter of practical alliances
but a negotiating strategy rooted in law. Thus, the basic principles underlying the WTO
Agreement recognize the need of developing countries like the Philippines to "share in
the growth in international trade commensurate with the needs of their economic
development." These basic principles are found in the preamble 34 of the WTO
Agreement as follows:
91
"The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should be
conducted with a view to raising standards of living, ensuring full employment and a large
and steadily growing volume of real income and effective demand, and expanding the
production of and trade in goods and services, while allowing for the optimal use of the
world's resources in accordance with the objective of sustainable development, seeking
both to protect and preserve the environment and to enhance the means for doing so in
a manner consistent with their respective needs and concerns at different levels of
economic development,
Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure a share in
the growth in international trade commensurate with the needs of their economic
development,
Being desirous of contributing to these objectives by entering into reciprocal and mutually
advantageous arrangements directed to the substantial reduction of tariffs and other
barriers to trade and to the elimination of discriminatory treatment in international trade
relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral trading
system encompassing the General Agreement on Tariffs and Trade, the results of past
trade liberalization efforts, and all of the results of the Uruguay Round of Multilateral Trade
Negotiations,
Determined to preserve the basic principles and to further the objectives underlying this
multilateral trading system, . . ." (emphasis supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the foregoing
basic principles, the WTO Agreement grants developing countries a more lenient
treatment, giving their domestic industries some protection from the rush of foreign
competition. Thus, with respect to tariffs in general, preferential treatment is given to
developing countries in terms of the amount of tariff reduction and the period within which
the reduction is to be spread out. Specifically, GATT requires an average tariff reduction
rate of 36% for developed countries to be effected within a period of six (6) years while
developing countries including the Philippines are required to effect an average tariff
reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic
support to agricultural products by 20% over six (6) years, as compared to only 13% for
developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries
to reduce their budgetary outlays for export subsidy by 36% and export volumes receiving
export subsidy by 21% within a period of six (6) years. For developing countries, however,
the reduction rate is only two-thirds of that prescribed for developed countries and a
longer period of ten (10) years within which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition and
trade practices including anti-dumping measures, countervailing measures and
safeguards against import surges. Where local businesses are jeopardized by unfair
foreign competition, the Philippines can avail of these measures. There is hardly therefore
any basis for the statement that under the WTO, local industries and enterprises will all
be wiped out and that Filipinos will be deprived of control of the economy. Quite the
92
contrary, the weaker situations of developing nations like the Philippines have been taken
into account; thus, there would be no basis to say that in joining the WTO, the respondents
have gravely abused their discretion. True, they have made a bold decision to steer the
ship of state into the yet uncharted sea of economic liberalization. But such decision
cannot be set aside on the ground of grave abuse of discretion, simply because we
disagree with it or simply because we believe only in other economic policies. As earlier
stated, the Court in taking jurisdiction of this case will not pass upon the advantages and
disadvantages of trade liberalization as an economic policy. It will only perform its
constitutional duty of determining whether the Senate committed grave abuse of
discretion. cdtai
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and independent national
economy" 35 does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither "economic seclusion" nor "mendicancy in the
international community." As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
"Economic self reliance is a primary objective of a developing country that is keenly aware
of overdependence on external assistance for even its most basic needs. It does not
mean autarky or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom from undue foreign control
of the national economy, especially in such strategic industries as in the development of
natural resources and public utilities." 36
The WTO reliance on "most favored nation," "national treatment," and "trade without
discrimination" cannot be struck down as unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO members. Aside from envisioning a trade
policy based on "equality and reciprocity," 37 the fundamental law encourages industries
that are "competitive in both domestic and foreign markets," thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have shown capability and
tenacity to compete internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to
grow and to prosper against the best offered under a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business or
enterprise, nor does it contain any specific pronouncement that Filipino companies should
be pampered with a total proscription of foreign competition. On the other hand,
respondents claim that WTO/GATT aims to make available to the Filipino consumer the
best goods and services obtainable anywhere in the world at the most reasonable prices.
Consequently, the question boils down to whether WTO/GATT will favor the general
welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to
reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will as
promised by its promoters expand the country's exports and generate more
employment?
Will it bring more prosperity, employment, purchasing power and quality products at the
most reasonable rates to the Filipino public?
93
The responses to these questions involve "judgment calls" by our policy makers, for which
they are answerable to our people during appropriate electoral exercises. Such questions
and the answers thereto are not subject to judicial pronouncements based on grave
abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was
drafted and ratified in 1987. That does not mean however that the Charter is necessarily
flawed in the sense that its framers might not have anticipated the advent of a borderless
world of business. By the same token, the United Nations was not yet in existence when
the 1935 Constitution became effective. Did that necessarily mean that the then
Constitution might not have contemplated a diminution of the absoluteness of sovereignty
when the Philippines signed the UN Charter, thereby effectively surrendering part of its
control over its foreign relations to the decisions of various UN organs like the Security
Council?
It is not difficult to answer this question. Constitutions are designed to meet not only the
vagaries of contemporary events. They should be interpreted to cover even future and
unknown circumstances. It is to the credit of its drafters that a Constitution can withstand
the assaults of bigots and infidels but at the same time bend with the refreshing winds of
change necessitated by unfolding events. As one eminent political law writer and
respected jurist 38 explains:
"The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and framework only of the edifice that is yet to rise. It is but the core
of the dream that must take shape, not in a twinkling by mandate of our delegates, but
slowly 'in the crucible of Filipino minds and hearts,' where it will in time develop its sinews
and gradually gather its strength and finally achieve its substance. In fine, the Constitution
cannot, like the goddess Athena, rise full-grown from the brow of the Constitutional
Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society
it seeks to re-structure and march apace with the progress of the race, drawing from the
vicissitudes of history the dynamism and vitality that will keep it, far from becoming a
petrified rule, a pulsing, living law attuned to the heartbeat of the nation." cdtech
Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its
laws, regulations and administrative procedures with its obligations as provided in the
annexed Agreements." 39 Petitioners maintain that this undertaking "unduly limits,
restricts and impairs Philippine sovereignty, specifically the legislative power which under
Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress of the
Philippines. It is an assault on the sovereign powers of the Philippines because this
means that Congress could not pass legislation that will be good for our national interest
and general welfare if such legislation will not conform with the WTO Agreement, which
not only relates to the trade in goods . . . but also to the flow of investments and money .
. . as well as to a whole slew of agreements on socio-cultural matters . . ." 40
More specifically, petitioners claim that said WTO proviso derogates from the power to
tax, which is lodged in the Congress. 41 And while the Constitution allows Congress to
authorize the President to fix tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts, such authority is subject to "specified limits and . . .
such limitations and restrictions" as Congress may provide, 42 as in fact it did under Sec.
401 of the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties
94
This Court notes and appreciates the ferocity and passion by which petitioners stressed
their arguments on this issue. However, while sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic level, it is however subject to restrictions
and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a
member of the family of nations. Unquestionably, the Constitution did not envision a
hermit-type isolation of the country from the rest of the world. In its Declaration of
Principles and State Policies, the Constitution "adopts the generally accepted principles
of international law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity, with all nations." 43 By the doctrine of
incorporation, the country is bound by generally accepted principles of international law,
which are considered to be automatically part of our own laws. 44 One of the oldest and
most fundamental rules in international law is pacta sunt servanda international
agreements must be performed in good faith. "A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on the parties . . . A state which has
contracted valid international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the obligations
undertaken." 45
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By
their voluntary act, nations may surrender some aspects of their state power in exchange
for greater benefits granted by or derived from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of mutually covenanted objectives and
benefits, they also commonly agree to limit the exercise of their otherwise absolute rights.
Thus, treaties have been used to record agreements between States concerning such
widely diverse matters as, for example, the lease of naval bases, the sale or cession of
territory, the termination of war, the regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the settling of claims, the laying down of
rules governing conduct in peace and the establishment of international organizations. 46
The sovereignty of a state therefore cannot in fact and in reality be considered absolute.
Certain restrictions enter into the picture: (1) limitations imposed by the very nature of
membership in the family of nations and (2) limitations imposed by treaty stipulations. As
aptly put by John F. Kennedy, "Today, no nation can build its destiny alone. The age of
self-sufficient nationalism is over. The age of interdependence is here." 47
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter members,
it consented to restrict its sovereign rights under the "concept of sovereignty as autolimitation." 47-A Under Article 2 of the UN Charter, "(a)ll members shall give the United
Nations every assistance in any action it takes in accordance with the present Charter,
and shall refrain from giving assistance to any state against which the United Nations is
taking preventive or enforcement action." Such assistance includes payment of its
corresponding share not merely in administrative expenses but also in expenditures for
the peace-keeping operations of the organization. In its advisory opinion of July 20, 1961,
the International Court of Justice held that money used by the United Nations Emergency
Force in the Middle East and in the Congo were "expenses of the United Nations" under
Article 17, paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine Congress is restricted
in its power to appropriate. It is compelled to appropriate funds whether it agrees with
such peace-keeping expenses or not. So too, under Article 105 of the said Charter, the
UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting
again the exercise of sovereignty of members within their own territory. Another example:
although "sovereign equality" and "domestic jurisdiction" of all members are set forth as
underlying principles in the UN Charter, such provisos are however subject to
enforcement measures decided by the Security Council for the maintenance of
international peace and security under Chapter VII of the Charter. A final example: under
Article 103, "(i)n the event of a conflict between the obligations of the Members of the
United Nations under the present Charter and their obligations under any other
95
international agreement, their obligation under the present charter shall prevail," thus
unquestionably denying the Philippines as a member the sovereign power to make
a choice as to which of conflicting obligations, if any, to honor. cda
Apart from the UN Treaty, the Philippines has entered into many other international pacts
both bilateral and multilateral that involve limitations on Philippine sovereignty.
These are enumerated by the Solicitor General in his Compliance dated October 24,
1996, as follows:
"(a)Bilateral convention with the United States regarding taxes on income, where the
Philippines agreed, among others, to exempt from tax, income received in the Philippines
by, among others, the Federal Reserve Bank of the United States, the Export/Import Bank
of the United States, the Overseas Private Investment Corporation of the United States.
Likewise, in said convention, wages, salaries and similar remunerations paid by the
United States to its citizens for labor and personal services performed by them as
employees or officials of the United States are exempt from income tax by the Philippines.
(b)Bilateral agreement with Belgium, providing, among others, for the avoidance of double
taxation with respect to taxes on income.
(c)Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.
(d)Bilateral convention with the French Republic for the avoidance of double taxation.
(e)Bilateral air transport agreement with Korea where the Philippines agreed to exempt
from all customs duties, inspection fees and other duties or taxes aircrafts of South Korea
and the regular equipment, spare parts and supplies arriving with said aircrafts.
(f)Bilateral air service agreement with Japan, where the Philippines agreed to exempt
from customs duties, excise taxes, inspection fees and other similar duties, taxes or
charges fuel, lubricating oils, spare parts, regular equipment, stores on board Japanese
aircrafts while on Philippine soil.
(g)Bilateral air service agreement with Belgium where the Philippines granted Belgian air
carriers the same privileges as those granted to Japanese and Korean air carriers under
separate air service agreements.
(h)Bilateral notes with Israel for the abolition of transit and visitor visas where the
Philippines exempted Israeli nationals from the requirement of obtaining transit or visitor
visas for a sojourn in the Philippines not exceeding 59 days.
(i)Bilateral agreement with France exempting French nationals from the requirement of
obtaining transit and visitor visa for a sojourn not exceeding 59 days.
(j)Multilateral Convention on Special Missions, where the Philippines agreed that
premises of Special Missions in the Philippines are inviolable and its agents can not enter
said premises without consent of the Head of Mission concerned. Special Missions are
also exempted from customs duties, taxes and related charges.
(k)Multilateral Convention on the Law of Treaties. In this convention, the Philippines
agreed to be governed by the Vienna Convention on the Law of Treaties.
(l)Declaration of the President of the Philippines accepting compulsory jurisdiction of the
International Court of Justice. The International Court of Justice has jurisdiction in all legal
disputes concerning the interpretation of a treaty, any question of international law, the
existence of any fact which, if established, would constitute a breach of international
obligation."
96
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its
sovereign powers of taxation, eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the reciprocal commitment of the
other contracting states in granting the same privilege and immunities to the Philippines,
its officials and its citizens. The same reciprocity characterizes the Philippine
commitments under WTO-GATT.
"International treaties, whether relating to nuclear disarmament, human rights, the

environment, the law of the sea, or trade, constrain domestic political sovereignty through
the assumption of external obligations. But unless anarchy in international relations is
preferred as an alternative, in most cases we accept that the benefits of the reciprocal
obligations involved outweigh the costs associated with any loss of political sovereignty.
(T)rade treaties that structure relations by reference to durable, well-defined substantive
norms and objective dispute resolution procedures reduce the risks of larger countries
exploiting raw economic power to bully smaller countries, by subjecting power relations
to some form of legal ordering. In addition, smaller countries typically stand to gain
disproportionately from trade liberalization. This is due to the simple fact that liberalization
will provide access to a larger set of potential new trading relationship than in case of the
larger country gaining enhanced success to the smaller country's market." 48
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be
waived without violating the Constitution, based on the rationale that the Philippines
"adopts the generally accepted principles of international law as part of the law of the land
and adheres to the policy of . . . cooperation and amity with all nations." casia
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic
Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) 49 intrudes on the power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures. 50
To understand the scope and meaning of Article 34, TRIPS, 51 it will be fruitful to restate
its full text as follows:
"Article 34
Process Patents: Burden of Proof
1.For the purposes of civil proceedings in respect of the infringement of the rights of the
owner referred to in paragraph 1 (b) of Article 28, if the subject matter of a patent is a
process for obtaining a product, the judicial authorities shall have the authority to order
the defendant to prove that the process to obtain an identical product is different from the
patented process. Therefore, Members shall provide, in at least one of the following
circumstances, that any identical product when produced without the consent of the
patent owner shall, in the absence of proof to the contrary, be deemed to have been
obtained by the patented process:
(a)if the product obtained by the patented process is new;
(b)if there is a substantial likelihood that the identical product was made by the process
and the owner of the patent has been unable through reasonable efforts to determine the
process actually used.
97
2.Any Member shall be free to provide that the burden of proof indicated in paragraph 1
shall be on the alleged infringer only if the condition referred to in subparagraph (a) is
fulfilled or only if the condition referred to in subparagraph (b) is fulfilled.
3.In the adduction of proof to the contrary, the legitimate interests of defendants in
protecting their manufacturing and business secrets shall be taken into account."
From the above, a WTO Member is required to provide a rule of disputable (note the
words "in the absence of proof to the contrary") presumption that a product shown to be
identical to one produced with the use of a patented process shall be deemed to have
been obtained by the (illegal) use of the said patented process, (1) where such product
obtained by the patented product is new, or (2) where there is "substantial likelihood" that
the identical product was made with the use of the said patented process but the owner
of the patent could not determine the exact process used in obtaining such identical
product. Hence, the "burden of proof" contemplated by Article 34 should actually be
understood as the duty of the alleged patent infringer to overthrow such presumption.
Such burden, properly understood, actually refers to the "burden of evidence" (burden of
going forward) placed on the producer of the identical (or fake) product to show that his
product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the "burden of proof" since,
regardless of the presumption provided under paragraph 1 of Article 34, such owner still
has to introduce evidence of the existence of the alleged identical product, the fact that it
is "identical" to the genuine one produced by the patented process and the fact of
"newness" of the genuine product or the fact of "substantial likelihood" that the identical
product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as the
present law on the subject, Republic Act No. 165, as amended, otherwise known as the
Patent Law, provides a similar presumption in cases of infringement of patented design
or utility model, thus:
"SEC. 60.Infringement. Infringement of a design patent or of a patent for utility model
shall consist in unauthorized copying of the patented design or utility model for the
purpose of trade or industry in the article or product and in the making, using or selling of
the article or product copying the patented design or utility model. Identity or substantial
identity with the patented design or utility model shall constitute evidence of copying."
(emphasis supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a disputable
presumption applies only if (1) the product obtained by the patented process is NEW or
(2) there is a substantial likelihood that the identical product was made by the process
and the process owner has not been able through reasonable effort to determine the
process used. Where either of these two provisos does not obtain, members shall be free
to determine the appropriate method of implementing the provisions of TRIPS within their
own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third issue
derogation of legislative power will apply to this fourth issue also. Suffice it to say
that the reciprocity clause more than justifies such intrusion, if any actually exists.
Besides, Article 34 does not contain an unreasonable burden, consistent as it is with due
process and the concept of adversarial dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on patents,
trademarks and copyrights, the adjustment in legislation and rules of procedure will not
be substantial. 52
98
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents
Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes
but not in the other documents referred to in the Final Act, namely the Ministerial
Declaration and Decisions and the Understanding on Commitments in Financial Services
is defective and insufficient and thus constitutes abuse of discretion. They submit that
such concurrence in the WTO Agreement alone is flawed because it is in effect a rejection
of the Final Act, which in turn was the document signed by Secretary Navarro, in
representation of the Republic upon authority of the President. They contend that the
second letter of the President to the Senate 53 which enumerated what constitutes the
Final Act should have been the subject of concurrence of the Senate. cdt
"A final act, sometimes called protocol de clture, is an instrument which records the
winding up of the proceedings of a diplomatic conference and usually includes a
reproduction of the texts of treaties, conventions, recommendations and other acts
agreed upon and signed by the plenipotentiaries attending the conference." 54 It is not
the treaty itself. It is rather a summary of the proceedings of a protracted conference
which may have taken place over several years. The text of the "Final Act Embodying the
Results of the Uruguay Round of Multilateral Trade Negotiations" is contained in just one
page 55 in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By
signing said Final Act, Secretary Navarro as representative of the Republic of the
Philippines undertook:
"(a)to submit, as appropriate, the WTO Agreement for the consideration of their respective
competent authorities with a view to seeking approval of the Agreement in accordance
with their procedures; and
(b)to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final
Act required from its signatories, namely, concurrence of the Senate in the WTO
Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for
ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT
which provides that representatives of the members can meet "to give effect to those
provisions of this Agreement which invoke joint action, and generally with a view to
facilitating the operation and furthering the objectives of this Agreement." 56
The Understanding on Commitments in Financial Services also approved in Marrakesh
does not apply to the Philippines. It applies only to those 27 Members which "have
indicated in their respective schedules of commitments on standstill, elimination of
monopoly, expansion of operation of existing financial service suppliers, temporary entry
of personnel, free transfer and processing of information, and national treatment with
respect to access to payment, clearing systems and refinancing available in the normal
course of business." 57
On the other hand, the WTO Agreement itself expresses what multilateral agreements
are deemed included as its integral parts, 58 as follows:
"Article II
Scope of the WTO
99
1.The WTO shall provide the common institutional framework for the conduct of trade
relations among its Members in matters to the agreements and associated legal
instruments included in the Annexes to this Agreement.
2.The Agreements and associated legal instruments included in Annexes 1, 2, and 3
(hereinafter referred to as "Multilateral Agreements") are integral parts of this Agreement,
binding on all Members.
3.The Agreements and associated legal instruments included in Annex 4 (hereinafter
referred to as "Plurilateral Trade Agreements") are also part of this Agreement for those
Members that have accepted them, and are binding on those Members. The Plurilateral
Trade Agreements do not create either obligation or rights for Members that have not
accepted them.
4.The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter
referred to as "GATT 1994") is legally distinct from the General Agreement on Tariffs and
Trade, dated 30 October 1947, annexed to the Final Act adopted at the conclusion of the
Second Session of the Preparatory Committee of the United Nations Conference on
Trade and Employment, as subsequently rectified, amended or modified (hereinafter
referred to as "GATT 1947").
It should be added that the Senate was well-aware of what it was concurring in as shown
by the members' deliberation on August 25, 1994. After reading the letter of President
Ramos dated August 11, 1994, 59 the senators of the Republic minutely dissected what
the Senate was concurring in, as follows: 60
"THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in
the first day hearing of this Committee yesterday. Was the observation made by Senator
Taada that what was submitted to the Senate was not the agreement on establishing
the World Trade Organization by the final act of the Uruguay Round which is not the same
as the agreement establishing the World Trade Organization? And on that basis, Senator
Tolentino raised a point of order which, however, he agreed to withdraw upon
understanding that his suggestion for an alternative solution at that time was acceptable.
That suggestion was to treat the proceedings of the Committee as being in the nature of
briefings for Senators until the question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new. . . is he making a
new submission which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no
misunderstanding, it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on Senator Tolentino since they
were the ones that raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is being
submitted to the Senate for ratification is not the Final Act of the Uruguay Round, but
rather the Agreement on the World Trade Organization as well as the Ministerial
Declarations and Decisions, and the Understanding and Commitments in Financial
Services.
100
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator Tolentino?
And after him Senator Neptali Gonzales and Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act itself . The Constitution does not
require us to ratify the Final Act. It requires us to ratify the Agreement which is now being
submitted. The Final Act itself specifies what is going to be submitted to with the
governments of the participants. prcd
In paragraph 2 of the Final Act, we read and I quote:
'By signing the present Final Act, the representatives agree: (a) to submit as appropriate
the WTO Agreement for the consideration of the respective competent authorities with a
view of seeking approval of the Agreement in accordance with their procedures.'
In other words, it is not the Final Act that was agreed to be submitted to the governments
for ratification or acceptance as whatever their constitutional procedures may provide but
it is the World Trade Organization Agreement. And if that is the one that is being submitted
now, I think it satisfies both the Constitution and the Final Act itself .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record.
And they had been adequately reflected in the journal of yesterday's session and I don't
see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any
comment on this?
SEN. LINA, Mr. President, I agree with the observation just made by Senator Gonzales
out of the abundance of question. Then the new submission is, I believe, stating the
obvious and therefore I have no further comment to make."
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement,
petitioners are invoking this Court's constitutionally imposed duty "to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction" on the part of the Senate in giving its concurrence therein via Senate
Resolution No. 97. Procedurally, a writ of certiorari grounded on grave abuse of discretion
may be issued by the Court under Rule 65 of the Rules of Court when it is amply shown
that petitioners have no other plain, speedy and adequate remedy in the ordinary course
of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. 61 Mere abuse of discretion is not enough.
It must be grave abuse of discretion as when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and must be so patent and
so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform
101
the duty enjoined or to act at all in contemplation of law. 62 Failure on the part of the
petitioner to show grave abuse of discretion will result in the dismissal of the petition. 63
In rendering this Decision, this Court never forgets that the Senate, whose act is under
review, is one of two sovereign houses of Congress and is thus entitled to great respect
in its actions. It is itself a constitutional body independent and coordinate, and thus its
actions are presumed regular and done in good faith. Unless convincing proof and
persuasive arguments are presented to overthrow such presumptions, this Court will
resolve every doubt in its favor. Using the foregoing well-accepted definition of grave
abuse of discretion and the presumption of regularity in the Senate's processes, this Court
cannot find any cogent reason to impute grave abuse of discretion to the Senate's
exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of
Article VII of the Constitution. 64
It is true, as alleged by petitioners, that broad constitutional principles require the State to
develop an independent national economy effectively controlled by Filipinos; and to
protect and/or prefer Filipino labor, products, domestic materials and locally produced
goods. But it is equally true that such principles while serving as judicial and legislative
guides are not in themselves sources of causes of action. Moreover, there are other
equally fundamental constitutional principles relied upon by the Senate which mandate
the pursuit of a "trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity" and the promotion of
industries "which are competitive in both domestic and foreign markets," thereby justifying
its acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise
of legislative and judicial powers is balanced by the adoption of the generally accepted
principles of international law as part of the law of the land and the adherence of the
Constitution to the policy of cooperation and amity with all nations. cdasia
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its
consent to the WTO Agreement thereby making it "a part of the law of the land" is a
legitimate exercise of its sovereign duty and power. We find no "patent and gross"
arbitrariness or despotism "by reason of passion or personal hostility" in such exercise. It
is not impossible to surmise that this Court, or at least some of its members, may even
agree with petitioners that it is more advantageous to the national interest to strike down
Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of
discretion to the Senate and to nullify its decision. To do so would constitute grave abuse
in the exercise of our own judicial power and duty. Ineludably, what the Senate did was a
valid exercise of its authority. As to whether such exercise was wise, beneficial or viable
is outside the realm of judicial inquiry and review. That is a matter between the elected
policy makers and the people. As to whether the nation should join the worldwide march
toward trade liberalization and economic globalization is a matter that our people should
determine in electing their policy makers. After all, the WTO Agreement allows withdrawal
of membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian
Renaissance 65 where "the East will become the dominant region of the world
economically, politically and culturally in the next century." He refers to the "free market"
espoused by WTO as the "catalyst" in this coming Asian ascendancy. There are at
present about 31 countries including China, Russia and Saudi Arabia negotiating for
membership in the WTO. Notwithstanding objections against possible limitations on
national sovereignty, the WTO remains as the only viable structure for multilateral trading
and the veritable forum for the development of international trade law. The alternative to
WTO is isolation, stagnation, if not economic self-destruction. Duly enriched with original
membership, keenly aware of the advantages and disadvantages of globalization with its
on-line experience, and endowed with a vision of the future, the Philippines now straddles
the crossroads of an international strategy for economic prosperity and stability in the new
102
millennium. Let the people, through their duly authorized elected officers, make their free
choice.
WHEREFORE, the petition is DISMISSED for lack of merit. cda

SO ORDERED.
Narvasa, C .J ., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan,
Mendoza, Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.
Padilla and Vitug, JJ., concur in the result.
||| (Taada v. Angara, G.R. No. 118295, [May 2, 1997], 338 PHIL 546-606)
3. DOMINO VS. COMELEC 310 SCRA 546 (1999)
EN BANC
[G.R. No. 134015. July 19, 1999.]
JUAN DOMINO, petitioner, vs. COMMISSION ON ELECTIONS, NARCISO Ra.
GRAFILO, JR., EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO SAMSON and
DIONISIO P. LIM, SR., respondents.
LUCILLE CHIONGBIAN-SOLON, intervenor.
Brillantes Navarro Jumamil Arcilla Escolin & Martinez Law Offices for petitioner.
Bacungan Opinion & Rivilla for private respondents.
Fornier & Fornier Law Firm for intervenor.
SYNOPSIS
Petitioner Domino filed his certificate of candidacy for the position of Representative of
the Lone District of the Province of Sarangani. Private respondents, however, filed with
the Comelec a petition to deny due course to or cancel the certificate of candidacy of
Domino because he is neither a resident nor a registered voter of the province of
Sarangani. The petition was assigned to the Comelec Second Division, which rendered
a resolution declaring Domino disqualified as candidate for the position and ordered the
cancellation of his certificate of candidacy. On the day of the election, the Comelec
ordered that the votes cast for Domino be counted but suspended the proclamation if he
wins. The result of the election showed that Domino garnered the highest number of votes
over his opponents. He filed a motion for reconsideration of the resolution of the Comelec,
which was denied by the Comelec en banc. Hence, the present petition for certiorari with
preliminary mandatory injunction alleging that Comelec committed grave abuse of
discretion amounting to excess or lack of jurisdiction when it ruled that he did not meet
the one-year residence requirement. The Court allowed the candidate who received the
second highest number of votes in the election to intervene.
According to the Supreme Court, in showing compliance with the residency requirement,
both intent and actual presence in the district one intends to represent must satisfy the
length of time prescribed by the fundamental law. Domino's failure to do so rendered him
ineligible and his election to office null and void. The intervenor's plea that the votes cast
in favor of Domino be considered stray votes cannot be sustained. Thus, the votes cast
103
for Domino were presumed to have been cast in the sincere belief that he was a qualified
candidate, without any intention to misapply their franchise. Thus, said votes cannot be
treated as stray, void, or meaningless. The Court dismissed the petition. DHACES
SYLLABUS
1. POLITICAL LAW; ELECTIONS; OMNIBUS ELECTION CODE; JURISDICTION OF
THE COMMISSION ON ELECTIONS OVER PETITIONS TO DENY DUE COURSE TO
OR CANCEL CERTIFICATE OF CANDIDACY; CASE AT BAR. The COMELEC has
jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code; over a petition
to deny due course to or cancel certificate of candidacy. In the exercise of the said
jurisdiction, it is within the competence of the COMELEC to determine whether false
representation as to material facts was made in the certificate of candidacy, that will
include, among others, the residence of the candidate. . . . Such jurisdiction continues
even after election, if for any reason no final judgment of disqualification is rendered
before the election, and the candidate facing disqualification is voted for and receives the
highest number of votes and provided further that the winning candidate has not been
proclaimed or has taken his oath of office.
2. ID.; ID.; ID.; INCLUSION OR EXCLUSION PROCEEDING; DECISION IN SUCH
PROCEEDING, NOT CONCLUSIVE ON THE VOTER'S POLITICAL STATUS. The
determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings
as to the right of DOMINO to be included or excluded from the list of voters in the precinct
within its territorial jurisdiction, does not preclude the COMELEC, in the determination of
DOMINO's qualification as a candidate, to pass upon the issue of compliance with the
residency requirement. The proceedings for the exclusion or inclusion of voters in the list
of voters are summary in character. Thus, the factual findings of the trial court and its
resultant conclusions in the exclusion proceedings on matters other than the right to vote
in the precinct within its territorial jurisdiction are not conclusive upon the COMELEC.
Although the court in inclusion or exclusion proceedings may pass upon any question
necessary to decide the issue raised including the questions of citizenship and residence
of the challenged voter, the authority to order the inclusion in or exclusion from the list of
voters necessarily carries with it the power to inquire into and settle all matters essential
to the exercise of said authority. However, except for the right to remain in the list of voters
or for being excluded therefrom for the particular election in relation to which the
proceedings had been held, a decision in an exclusion or inclusion proceeding, even if
final and unappealable, does not acquire the nature of res judicata. In this sense, it does
not operate as a bar to any future action that a party may take concerning the subject
passed upon in the proceeding. Thus, a decision in an exclusion proceeding would neither
be conclusive on the voter's political status, nor bar subsequent proceeding's on his right
to be registered as a voter in any other election. AHacIS
3. ID.; ID.; ID.; ID.; TRIAL COURT; JURISDICTION OVER EXCLUSION CASES LIMITED
TO DETERMINING THE RIGHT OF VOTER TO REMAIN IN LIST OF VOTERS. The
jurisdiction of the lower court over exclusion cases is limited only to determining the right
of voter to remain in the list of voters or to declare that the challenged voter is not qualified
to vote in the precinct in which he is registered, specifying the ground of the voter's
disqualification. The trial court has no power to order the change or transfer of registration
from one place of residence to another for it is the function of the Election Registration
Board as provided under Section 12 of R.A. No. 8189. The only effect of the decision of
the lower court excluding the challenged voter from the list of voters, is for the Election
Registration Board, upon receipt of the final decision, to remove the voter's registration
record from the corresponding book of voters, enter the order of exclusion therein, and
thereafter place the record in the inactive file.
4. ID.; ID.; QUALIFICATIONS FOR SUFFRAGE AND FOR ELECTIVE OFFICE;
RESIDENCE AND DOMICILE, CONSTRUED. It is doctrinally settled that the term
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"residence," as used in the law prescribing the qualifications for suffrage and for elective
office, means the same thing as "domicile," which imports not only an intention to reside
in a fixed place but also personal presence in that place, coupled with conduct indicative
of such intention. "Domicile" denotes a fixed permanent residence to which, whenever
absent for business, pleasure, or some other reasons, one intends to return. "Domicile"
is a question of intention and circumstances. In the consideration of circumstances, three
rules must be borne in mind, namely: (1) that a man must have a residence or domicile
somewhere; (2) when once established it remains until a new one is acquired; and (3) a
man can have but one residence or domicile at a time. A person's "domicile" once
established is considered to continue and will not be deemed lost until a new one is
established. To successfully effect a change of domicile one must demonstrate an actual
removal or an actual change of domicile; a bona fide intention of abandoning the former
place of residence and establishing a new one and definite acts which correspond with
the purpose. In other words, there must basically be animus manendi coupled with
animus non revertendi. The purpose to remain in or at the domicile of choice must be for
an indefinite period of time; the change of residence must be voluntary; and the residence
at the place chosen for the new domicile must be actual. As a general rule, the principal
elements of domicile, physical presence in the locality involved and intention to adopt it
as a domicile, must concur in order to establish a new domicile. No change of domicile
will result if either of these elements is absent. Intention to acquire a domicile without
actual residence in the locality does not result in acquisition of domicile, nor does the fact
of physical presence without intention. Exercising the right of election franchise is a
deliberate public assertion of the fact of residence, and is said to have decided
preponderance in a doubtful case upon the place the elector claims as, or believes to be,
his residence. The fact that a party continuously voted in a particular locality is a strong
factor in assisting to determine the status of his domicile.
5. ID.; ID.; CANDIDATE WHO OBTAINS THE SECOND HIGHEST NUMBER OF VOTES
MAY NOT BE PROCLAIMED WINNER IN CASE THE WINNING CANDIDATE IS
DISQUALIFIED. It is now settled doctrine that the candidate who obtains the second
highest number of votes may not be proclaimed winner in case the winning candidate is
disqualified. In every election, the people's choice is the paramount consideration and
their expressed will must, at all times, be given effect. When the majority speaks and
elects into office a candidate by giving the highest number of votes cast in the election for
that office, no one can be declared elected in his place. TaCDIc
6. ID.; ID.; ID.; RATIONALE. It would be extremely repugnant to the basic concept of
the constitutionally guaranteed right to suffrage if a candidate who has not acquired the
majority or plurality of votes is proclaimed a winner and imposed as the representative of
a constituency, the majority of which have positively declared through their ballots that
they do not choose him. To simplistically assume that the second placer would have
received the other votes would be to substitute our judgment for the mind of the voters.
He could not be considered the first among qualified candidates because in a field which
excludes the qualified candidate, the conditions would have substantially changed. Sound
policy dictates that public elective offices are filled by those who have received the highest
number of votes cast in the election for that office, and it is fundamental idea in all
republican forms of government that no one can be declared elected and no measure can
be declared carried unless he or it receives a majority or plurality of the legal votes cast
in the election. The effect of a decision declaring a person ineligible to hold an office is
only that the election fails entirely, that the wreath of victory cannot be transferred from
the disqualified winner to the repudiated loser because the law then as now only
authorizes a declaration of election in favor of the person who has obtained a plurality of
votes and does not entitle the candidate receiving the next highest number of votes to be
declared elected. In such case, the electors have failed to make a choice and the election
is a nullity. To allow the defeated and repudiated candidate to take over the elective
position despite his rejection by the electorate is to disenfranchise the electorate without
105
any fault on their part and to undermine the importance and meaning of democracy and
the people's right to elect officials of their choice.
7. ID.; ID.; JURISDICTION OF THE HOUSE OF REPRESENTATIVES ELECTORAL

TRIBUNAL; BEGINS ONLY AFTER A CANDIDATE HAS BECOME A MEMBER OF THE
HOUSE OF REPRESENTATIVES. It has been repeatedly held in a number of cases,
that the House of Representatives Electoral Tribunal's sole and exclusive jurisdiction over
all contests relating to the election, returns and qualifications of members of Congress as
provided under Section 17 of Article VI of the Constitution begins only after a candidate
has become a member of the House of Representatives. The fact of obtaining the highest
number of votes in an election does not automatically vest the position in the winning
candidate. A candidate must be proclaimed and must have taken his oath of office before
he can be considered a member of the House of Representatives.
8. REMEDIAL LAW; JUDGMENT; DISMISSAL OF ACTION; RES JUDICATA;
REQUISITES; UNAVAILING IN CASE AT BAR. The application of the rule on res
judicata is unavailing. Identity of parties, subject matter and cause of action are
indispensable requirements for the application of said doctrine. Neither herein Private
Respondents nor INTERVENOR, is a party in the exclusion proceedings. The Petition for
Exclusion was filed by DOMINO himself and his wife, praying that he and his wife be
excluded from the Voter's List on the ground of erroneous registration while the Petition
to Deny Due Course to or Cancel Certificate of Candidacy was filed by private
respondents against DOMINO for alleged false representation in his certificate of
candidacy. For the decision to be a basis for the dismissal by reason of res judicata, it is
essential that there must be between the first and the second action identity of parties,
identity of subject matter and identity of causes of action. In the present case, the
aforesaid essential requisites are not present.
PANGANIBAN, J.: separate opinion:
1. POLITICAL LAW; ELECTIONS; QUALIFICATION OF VOTERS; RESIDENCE
REQUIREMENT; SHOULD BE CONSTRUED TO MEAN ACTUAL, PHYSICAL AND
PERSONAL PRESENCE; RATIONALE. A member. of the House of Representatives
must be a resident of the district which he or she seeks to represent "for a period of not
less than one year immediately preceding the day of the election" is a constitutional
requirement that should be interpreted in the sense in which ordinary lay persons
understand it. The common people who ratified the Constitution and were thereafter
expected to abide by it would not normally refer to the journals of the Constitutional
Commission in order to understand the words and phrases contained therein. Rather,
they would usually refer to the common source being used when they look up for the
meaning of words the dictionary. In this sense, Webster's definition of residence should
be controlling. If the framers of our basic law intended our people to understand residence
as legal domicile, they should have said so. Then our people would have looked up the
meaning of domicile and would have understood the constitutional provision in that
context. However, the framers of our Constitution did not. Justice Panganiban therefore
submits that residence must be understood in its common dictionary meaning as
understood by ordinary lay persons. CHTcSE
2. ID.; ID.; ID.; ID.; NEGATED SHOULD THE CONCEPT OF DOMICILE BE APPLIED;
BASIS THEREOF. Applying the concept of domicile in determining residence as a
qualification for an elective office would negate the objective behind the residence
requirement of one year (or six months, in the case of local positions). This required period
of residence preceding the day of the election, is rooted in the desire that officials of
districts or localities be acquainted not only with the metes and bounds of their
constituencies but, more important, with the constituents themselves their needs,
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difficulties, potentials for growth and development and all matters vital to their common
welfare. Such requisite period would precisely give candidates the opportunity to be
familiar with their desired constituencies, and likewise for the electorate to evaluate their
fitness for the offices they seek. If all that is required of elective officials is legal domicile,
then they would qualify even if, for several years prior to the election, they have never set
foot in their districts (or in the country, for that matter), since it is possible to maintain legal
domicile even without actual presence, provided one retains the animus revertendi or the
intention to return.
3. ID.; CONSTITUTION,AS THE BASIC LAW OF THE LAND; SHOULD BE
INTERPRETED IN THE SENSE UNDERSTOOD BY ORDINARY MAN. The
Constitution is the most basic law of the land. It enshrines the most cherished aspirations
and ideals of the population at large. It is not a document reserved only for scholarly
disquisition by the most eminent legal minds of the land. In ascertaining its import, lawyers
are not meant to quibble over it, to define its legal niceties, or to articulate its nuances. Its
contents and words should be interpreted in the sense understood by the ordinary men
and women who place their lives on the line in its defense and who pin their hopes for a
better life on its fulfillment. The call for simplicity in understanding and interpreting our
Constitution has been made a number of times. About three decades ago, this Court
declared: "It is to be assumed that the words in which constitutional provisions are
couched express the objective sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in which case the significance thus
attached to them prevails. As the Constitution is not primarily a lawyer's document, it
being essential for the rule of law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be understood in the sense they
have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say. Thus there are cases
where the need for construction is reduced to a minimum." CAIHTE
DECISION
DAVIDE, JR., C.J p:
Challenged in this case for certiorari with a prayer for preliminary injunction are the
Resolution of 6 May 1998 1 of the Second Division of the Commission on Elections
(hereafter COMELEC), declaring petitioner Juan Domino (hereafter DOMINO)
disqualified as candidate for representative of the Lone Legislative District of the Province
of Sarangani in the 11 May 1998 elections, and the Decision of 29 May 1998 2 of the
COMELEC en banc denying DOMINO's motion for reconsideration. cdll
The antecedents are not disputed.
On 25 March 1998, DOMINO filed his certificate of candidacy for the position of
Representative of the Lone Legislative District of the Province of Sarangani indicating in
item nine (9) of his certificate that he had resided in the constituency where he seeks to
be elected for one (1) year and two (2) months immediately preceding the election. 3
On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P.
Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., filed with the COMELEC a
Petition to Deny Due Course to or Cancel Certificate of Candidacy, which was docketed
as SPA No. 98-022 and assigned to the Second Division of the COMELEC. Private
respondents alleged that DOMINO, contrary to his declaration in the certificate of
candidacy, is not a resident, much less a registered voter, of the province of Sarangani
where he seeks election. To substantiate their allegations, private respondents presented
the following evidence:
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1. Annex "A" the Certificate of Candidacy of respondent for the position of

Congressman of the Lone District of the Province of Sarangani filed with the Office of the
Provincial Election Supervisor of Sarangani on March 25, 1998, where in item 4 thereof
he wrote his date of birth as December 5, 1953; in item 9, he claims he have resided in
the constituency where he seeks election for one (1) year and two (2) months; and, in
item 10, that he is registered voter of Precinct No. 14A-1, Barangay Poblacion, Alabel,
Sarangani;
2. Annex "B" Voter's Registration Record with SN 31326504 dated June 22, 1997
indicating respondent's registration at Precinct No. 4400-A, Old Balara, Quezon City;
3. Annex "C" Respondent's Community Tax Certificate No. 11132214C dated January
15, 1997; cdasia
4. Annex "D" Certified true copy of the letter of Herson D. Dema-ala, Deputy Provincial
& Municipal Treasurer of Alabel, Sarangani, dated February 26, 1998, addressed to Mr.
Conrado G. Butil, which reads:
"In connection with your letter of even date, we are furnishing you herewith certified xerox
copy of the triplicate copy of COMMUNITY TAX CERTIFICATE NO. 11132214C in the
name of Juan Domino.
Furthermore, Community Tax Certificate No. 11132212C of the same stub was issued to
Carlito Engcong on September 5, 1997, while Certificate No. 11132213C was also issued
to Mr. Juan Domino but was cancelled and serial no. 11132215C was issued in the name
of Marianita Letigio on September 8, 1997."
5. Annex "E" The triplicate copy of the Community Tax Certificate No. 11132214C in
the name of Juan Domino dated September 5, 1997;
6. Annex "F" Copy of the letter of Provincial Treasurer Lourdes P. Riego dated March
2, 1998 addressed to Mr. Herson D. Dema-ala, Deputy Provincial Treasurer and
Municipal Treasurer of Alabel, Sarangani, which states:
"For easy reference, kindly turn-over to the undersigned for safekeeping, the stub of
Community Tax Certificate containing Nos. 11132201C-11132250C issued to you on
June 13, 1997 and paid under Official Receipt No. 7854744.
Upon request of Congressman James L. Chiongbian."
7. Annex "G" Certificate of Candidacy of respondent for the position of Congressman
in the 3rd District of Quezon City for the 1995 elections filed with the Office of the Regional
Election Director, National Capital Region, on March 17, 1995, where, in item 4 thereof,
he wrote his birth date as December 22, 1953; in item 8 thereof his "residence in the
constituency where I seek to be elected immediately preceding the election" as 3 years
and 5 months; and, in item 9, that he is a registered voter of Precinct No. 182, Barangay
Balara, Quezon City;
8. Annex "H" a copy of the APPLICATION FOR TRANSFER OF REGISTRATION

RECORDS DUE TO CHANGE OF RESIDENCE of respondent dated August 30, 1997
addressed to and received by Election Officer Mantil Alim, Alabel, Sarangani, on
September 22, 1997, stating among others, that "[T]he undersigned's previous residence
is at 24 Bonifacio Street, Ayala Heights, Quezon City, III District, Quezon City; wherein
he is a registered voter" and "that for business and residence purposes, the undersigned
108
has transferred and conducts his business and reside at Barangay Poblacion, Alabel,
Province of Sarangani prior to this application;" cdlex
9. Annex "I" Copy of the SWORN APPLICATION FOR CANCELLATION OF VOTER'S
[TRANSFER OF] PREVIOUS REGISTRATION of respondent subscribed and sworn to
on 22 October 1997 before Election Officer Mantil Allim at Alabel, Sarangani. 4
For his defense, DOMINO maintains that he had complied with the one-year residence
requirement and that he has been residing in Sarangani since January 1997. In support
of the said contention, DOMINO presented before the COMELEC the following exhibits,
to wit:
1. Annex "1" Copy of the Contract of Lease between Nora Dacaldacal as Lessor and
Administrator of the properties of deceased spouses Maximo and Remedios Dacaldacal
and respondent as Lessee executed on January 15, 1997, subscribed and sworn to
before Notary Public Johnny P. Landero;
2. Annex "2" Copy of the Extra-Judicial Settlement of Estate with Absolute Deed of
sale executed by and between the heirs of deceased spouses Maximo and Remedios
Dacaldacal, namely: Maria Lourdes, Jupiter and Beberlie and the respondent on
November 4, 1997, subscribed and sworn to before Notary Public Jose A. Alegario;
3. Annex "3" True Carbon Xerox copy of the Decision dated January 19, 1998, of the
Metropolitan Trial Court of Metro Manila, Branch 35, Quezon City, in Election Case NO.
725 captioned as "In the Matter of the Petition for the Exclusion from the List of voters of
Precinct No. 4400-A Brgy. Old Balara, Quezon City, Spouses Juan and Zorayda Domino,
Petitioners, versus Elmer M. Kayanan, Election Officer, Quezon City, District III, and the
Board of Election Inspectors of Precinct No. 4400-A, Old Balara, Quezon City,
Respondents." The dispositive portion of which reads:
1. Declaring the registration of petitioners as voters of Precinct No. 4400-A, Barangay Old
Balara, in District III Quezon City as completely erroneous as petitioners were no longer
residents of Quezon City but of Alabel, Sarangani where they have been residing since
December 1996;
2. Declaring this erroneous registration of petitioners in Quezon City as done in good faith
due to an honest mistake caused by circumstances beyond their control and without any
fault of petitioners;
3. Approving the transfer of registration of voters of petitioners from Precinct No. 4400-A
of Barangay Old Balara, Quezon City to Precinct No. 14A1 of Barangay Poblacion of
Alabel, Sarangani; and
4. Ordering the respondents to immediately transfer and forward all the election/voter's
registration records of the petitioners in Quezon City to the Election Officer, the Election
Registration Board and other Comelec Offices of Alabel, Sarangani where the petitioners
are obviously qualified to exercise their respective rights of suffrage. cdll
4. Annex "4" Copy of the Application for Transfer of Registration Records due to
Change of Residence addressed to Mantil Alim, COMELEC Registrar, Alabel, Sarangani,
dated August 30, 1997.
5. Annex "5" Certified True Copy of the Notice of Approval of Application, the roster of
applications for registration approved by the Election Registration Board on October 20,
1997, showing the spouses Juan and Zorayda Bailon Domino listed as numbers 111 and
112 both under Precinct No. 14A1, the last two names in the slate indicated as transferees
109
without VRR numbers and their application dated August 30, 1997 and September 30,
1997, respectively.
6. Annex "6" same as Annex "5"
7. Annex "6-a" Copy of the Sworn Application for Cancellation of Voter's Previous
Registration (Annex "I", Petition);
8. Annex "7" Copy of claim card in the name of respondent showing his VRR No.
31326504 dated October 20, 1997 as a registered voter of Precinct No. 14A1, Barangay
Poblacion, Alabel, Sarangani;
9. Annex "7-a" Certification dated April 16, 1998, issued by Atty. Elmer M. Kayanan,
Election Officer IV, District III, Quezon City, which reads:
"This is to certify that the spouses JUAN and ZORAYDA DOMINO are no longer
registered voters of District III, Quezon City. Their registration records (VRR) were
transferred and are now in the possession of the Election Officer of Alabel, Sarangani.
This certification is being issued upon the request of Mr. JUAN DOMINO.
10. Annex "8" Affidavit of Nora Dacaldacal and Maria Lourdes Dacaldacal stating the
circumstances and incidents detailing their alleged acquaintance with respondent.
11. Annexes "8-a", "8-b", "8-c" and "8-d" Copies of the uniform affidavits of witness
Myrna Dalaguit, Hilario Fuentes, Coraminda Lomibao and Elena V. Piodos subscribed
and sworn to before Notary Public Bonifacio F. Doria, Jr., on April 18, 1998, embodying
their alleged personal knowledge of respondent's residency in Alabel, Sarangani;
12. Annex "8-e" A certification dated April 20, 1998, subscribed and sworn to before
Notary Public Bonifacio, containing a listing of the names of fifty-five(55) residents of
Alabel, Sarangani, declaring and certifying under oath that they personally know the
respondent as a permanent resident of Alabel, Sarangani since January 1997 up to
present; LLpr
13. Annexes "9", "9-a" and "9-b" Copies of Individual Income Tax Return for the year
1997, BIR form 2316 and W-2, respectively, of respondent; and,
14. Annex "10" The affidavit of respondent reciting the chronology of events and
circumstances leading to his relocation to the Municipality of Alabel, Sarangani,
appending Annexes "A", "B", "C", "D", "D-1", "E", "F", "G" with sub-markings "G-1" and
"G-2" and "H" his CTC No. 111`32214C dated September 5, 1997, which are the same
as Annexes "1", "2", "4", "5", "6-a", "3", "7", "9" with sub-markings "9-a" and "9-b" except
Annex "H." 5
On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO
disqualified as candidate for the position of representative of the lone district of Sarangani
for lack of the one-year residence requirement and likewise ordered the cancellation of
his certificate of candidacy, on the basis of the following findings:
What militates against respondent's claim that he has met the residency requirement for
the position sought is his own Voter's Registration Record No. 31326504 dated June 22,
1997 [Annex "B", Petition] and his address indicated as 24 Bonifacio St., Ayala Heights,
Old Balara, Quezon City. This evidence, standing alone, negates all his protestations that
he established residence at Barangay Poblacion, Alabel, Sarangani, as early as January
1997. It is highly improbable, nay incredible, for respondent who previously ran for the
110
same position in the 3rd Legislative District of Quezon City during the elections of 1995
to unwittingly forget the residency requirement for the office sought.
Counting, therefore, from the day after June 22, 1997 when respondent registered at
Precinct No. 4400-A, up to and until the day of the elections on May 11, 1998, respondent
clearly lacks the one (1) year residency requirement provided for candidates for Member
of the House of Representatives under Section 6, Article VI of the Constitution.
All told, petitioner's evidence conspire to attest to respondent's lack of residence in the
constituency where he seeks election and while it may be conceded that he is a registered
voter as contemplated under Section 12 of R.A. 8189, he lacks the qualification to run for
the position of Congressman for the Lone District of the Province of Sarangani. 6 cda
On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus
Resolution No. 3046, ordering that the votes cast for DOMINO be counted but to suspend
the proclamation if winning, considering that the Resolution disqualifying him as candidate
had not yet become final and executory. 7
The result of the election, per Statement of Votes certified by the Chairman of the
Provincial Board of Canvassers, 8 shows that DOMINO garnered the highest number of
votes over his opponents for the position of Congressman of the Province of Sarangani.
On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6
May 1998, which was denied by the COMELEC en banc in its decision dated 29 May
1998. Hence, the present Petition for Certiorari with prayer for Preliminary Mandatory
Injunction alleging, in the main, that the COMELEC committed grave abuse of discretion
amounting to excess or lack of jurisdiction when it ruled that he did not meet the one-year
residence requirement.
On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining
Order, the Court directed the parties to maintain the status quo prevailing at the time of
the filing of the instant petition. 9
On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the
candidate receiving the second highest number of votes, was allowed by the Court to
Intervene. 10 INTERVENOR in her Motion for Leave to Intervene and in her Comment in
Intervention 11 is asking the Court to uphold the disqualification of petitioner Juan Domino
and to proclaim her as the duly elected representative of Sarangani in the 11 May 1998
elections. llcd
Before us DOMINO raised the following issues for resolution, to wit:
a. Whether or not the judgment of the Metropolitan Trial Court of Quezon City declaring
petitioner as resident of Sarangani and not of Quezon City is final, conclusive and binding
upon the whole world, including the Commission on Elections.
b. Whether or not petitioner herein has resided in the subject congressional district for at
least one (1) year immediately preceding the May 11, 1998 elections; and
c. Whether or not respondent COMELEC has jurisdiction over the petition a quo for the
disqualification of petitioner. 12
The first issue.
111
The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon
City in the exclusion proceedings declaring him a resident of the Province of Sarangani
and not of Quezon City is final and conclusive upon the COMELEC cannot be sustained.
The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election
Code, over a petition to deny due course to or cancel certificate of candidacy. In the
exercise of the said jurisdiction, it is within the competence of the COMELEC to determine
whether false representation as to material facts was made in the certificate of candidacy,
that will include, among others, the residence of the candidate.
The determination of the Metropolitan Trial Court of Quezon City in the exclusion
proceedings as to the right of DOMINO to be included or excluded from the list of voters
in the precinct within its territorial jurisdiction, does not preclude the COMELEC, in the
determination of DOMINO's qualification as a candidate, to pass upon the issue of
compliance with the residency requirement.
The proceedings for the exclusion or inclusion of voters in the list of voters are summary
in character. Thus, the factual findings of the trial court and its resultant conclusions in
the exclusion proceedings on matters other than the right to vote in the precinct within its
territorial jurisdiction are not conclusive upon the COMELEC. Although the court in
inclusion or exclusion proceedings may pass upon any question necessary to decide the
issue raised including the questions of citizenship and residence of the challenged voter,
the authority to order the inclusion in or exclusion from the list of voters necessarily carries
with it the power to inquire into and settle all matters essential to the exercise of said
authority. However, except for the right to remain in the list of voters or for being excluded
therefrom for the particular election in relation to which the proceedings had been held, a
decision in an exclusion or inclusion proceeding, even if final and unappealable, does not
acquire the nature of res judicata. 13 In this sense, it does not operate as a bar to any
future action that a party may take concerning the subject passed upon in the proceeding.
14 Thus, a decision in an exclusion proceeding would neither be conclusive on the voters
political status, nor bar subsequent proceedings on his right to be registered as a voter in
any other election. 15
Thus, in Tan Cohon v. Election Registrar 16 we ruled that: dctai
. . . It is made clear that even as it is here held that the order of the City Court in question
has become final, the same does not constitute res adjudicata as to any of the matters
therein contained. It is ridiculous to suppose that such an important and intricate matter
of citizenship may be passed upon and determined with finality in such a summary and
peremptory proceeding as that of inclusion and exclusion of persons in the registry list of
voters. Even if the City Court had granted appellant's petition for inclusion in the
permanent list of voters on the allegation that she is a Filipino citizen qualified to vote, her
alleged Filipino citizenship would still have been left open to question.
Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision
exceeded its jurisdiction when it declared DOMINO a resident of the Province of
Sarangani, approved and ordered the transfer of his voter's registration from Precinct No.
4400-A of Barangay Old Balara, Quezon City to precinct 14A1 of Barangay Poblacion,
Alabel, Sarangani. It is not within the competence of the trial court, in an exclusion
proceedings, to declare the challenged voter a resident of another municipality. The
jurisdiction of the lower court over exclusion cases is limited only to determining the right
of voter to remain in the list of voters or to declare that the challenged voter is not qualified
to vote in the precinct in which he is registered, specifying the ground of the voter's
disqualification. The trial court has no power to order the change or transfer of registration
from one place of residence to another for it is the function of the election Registration
Board as provided under Section 12 of R.A. No. 8189. 17 The only effect of the decision
of the lower court excluding the challenged voter from the list of voters, is for the Election
112
Registration Board, upon receipt of the final decision, to remove the voter's registration
record from the corresponding book of voters, enter the order of exclusion therein, and
thereafter place the record in the inactive file. 18
Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject
matter and cause of action are indispensable requirements for the application of said
doctrine. Neither herein Private Respondents nor INTERVENOR, is a party in the
exclusion proceedings. The Petition for Exclusion was filed by DOMINO himself and his
wife, praying that he and his wife be excluded from the Voter's List on the ground of
erroneous registration while the Petition to Deny Due Course to or Cancel Certificate of
Candidacy was filed by private respondents against DOMINO for alleged false
representation in his certificate of candidacy. For the decision to be a basis for the
dismissal by reason of res judicata, it is essential that there must be between the first and
the second action identity of parties, identity of subject matter and identity of causes of
action. 19 In the present case, the aforesaid essential requisites are not present. In the
case of Nuval v. Guray, et al., 20 the Supreme Court in resolving a similar issue ruled
that: cdasia
The question to be solved under the first assignment of error is whether or not the
judgment rendered in the case of the petition for the exclusion of Norberto Guray's name
from the election list of Luna, is res judicata, so as to prevent the institution and
prosecution of an action in quo warranto, which is now before us.
The procedure prescribed by section 437 of the Administrative Code, as amended by Act
No. 3387, is of a summary character and the judgment rendered therein is not appealable
except when the petition is tried before the justice of the peace of the capital or the circuit
judge, in which case it may be appealed to the judge of first instance, with whom said two
lower judges have concurrent jurisdiction.
The petition for exclusion was presented by Gregorio Nuval in his dual capacity as
qualified voter of the municipality of Luna, and as a duly registered candidate for the office
of president of said municipality, against Norberto Guray as a registered voter in the
election list of said municipality. The present proceeding of quo warranto was interposed
by Gregorio Nuval in his capacity as a registered candidate voted for the office of
municipal president of Luna, against Norberto Guray, as an elected candidate for the
same office. Therefore, there is no identity of parties in the two cases, since it is not
enough that there be an identity of persons, but there must be an identity of capacities in
which said persons litigate. (Art. 1259 of the Civil Code; Bowler vs. Estate of Alvarez, 23
Phil., 561; 34 Corpus Juris, p. 756, par. 1165)
In said case of the petition for the exclusion, the object of the litigation, or the litigious
matter was the exclusion of Norberto Guray as a voter from the election list of the
municipality of Luna, while in the present quo warranto proceeding, the object of the
litigation, or the litigious matter is his exclusion or expulsion from the office to which he
has been elected. Neither does there exist, then, any identity in the object of the litigation,
or the litigious matter.
In said case of the petition for exclusion, the cause of action was that Norberto Guray had
not the six months' legal residence in the municipality of Luna to be a qualified voter
thereof, while in the present proceeding of quo warranto, the cause of action is that
Norberto Guray has not the one year's legal residence required for eligibility to the office
of municipal president of Luna. Neither does there exist therefore, identity of causes of
action. cdphil
In order that res judicata may exist the following are necessary: (a) identity of parties; (b)
identity of things; and (c) identity of issues (Aquino vs. Director of Lands, 39 Phil. 850).
And as in the case of the petition for exclusion and in the present quo warranto
113
proceeding, as there is no identity of parties, or of things or litigious matter, or of issues

or causes of action, there is no res judicata.
The Second Issue.
Was DOMINO a resident of the Province of Sarangani for at least one year immediately
preceding the 11 May 1998 election as stated in his certificate of candidacy?
We hold in the negative. cda
It is doctrinally settled that the term "residence," as used in the law prescribing the
qualifications for suffrage and for elective office, means the same thing as "domicile,"
which imports not only an intention to reside in a fixed place but also personal presence
in that place, coupled with conduct indicative of such intention. 21 "Domicile" denotes a
fixed permanent residence to which, whenever absent for business, pleasure, or some
other reasons, one intends to return. 22 "Domicile" is a question of intention and
circumstances. In the consideration of circumstances, three rules must be borne in mind,
namely: (1) that a man must have a residence or domicile somewhere; (2) when once
established it remains until a new one is acquired; and (3) a man can have but one
residence or domicile at a time. 23
Records show that petitioner's domicile of origin was Candon, Ilocos Sur 24 and that
sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights,
Old Balara, Quezon City, as shown by his certificate of candidacy for the position of
representative of the 3rd District of Quezon City in the May 1995 election. Petitioner is
now claiming that he had effectively abandoned his "residence" in Quezon City and has
established a new "domicile" of choice at the Province of Sarangani.
A person's "domicile" once established is considered to continue and will not be deemed
lost until a new one is established. 25 To successfully effect a change of domicile one
must demonstrate an actual removal or an actual change of domicile; a bona fide intention
of abandoning the former place of residence and establishing a new one and definite acts
which correspond with the purpose. 26 In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose to remain in or at the domicile
of choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be actual. 27
It is the contention of petitioner that his actual physical presence in Alabel, Sarangani
since December 1996 was sufficiently established by the lease of a house and lot located
therein in January 1997 and by the affidavits and certifications under oath of the residents
of that place that they have seen petitioner and his family residing in their locality. dctai
While this may be so, actual and physical is not in itself sufficient to show that from said
date he had transferred his residence in that place. To establish a new domicile of choice,
personal presence in the place must be coupled with conduct indicative of that intention.
While "residence" simply requires bodily presence in a given place, "domicile" requires
not only such bodily presence in that place but also a declared and probable intent to
make it one's fixed and permanent place of abode, one's home. 28
As a general rule, the principal elements of domicile, physical presence in the locality
involved and intention to adopt it as a domicile, must concur in order to establish a new
domicile. No change of domicile will result if either of these elements is absent. Intention
to acquire a domicile without actual residence in the locality does not result in acquisition
of domicile, nor does the fact of physical presence without intention. 29
114
The lease contract entered into sometime in January 1997, does not adequately support
a change of domicile. The lease contract may be indicative of DOMINO's intention to
reside in Sarangani but it does not engender the kind of permanency required to prove
abandonment of one's original domicile. The mere absence of individual from his
permanent residence, no matter how long, without the intention to abandon it does not
result in loss or change of domicile. 30 Thus the date of the contract of lease of a house
and lot located in the province of Sarangani, i.e., 15 January 1997, cannot be used, in the
absence of other circumstances, as the reckoning period of the one-year residence
requirement.
Further, Domino's lack of intention to abandon his residence in Quezon City is further
strengthened by his act of registering as voter in one of the precincts in Quezon City.
While voting is not conclusive of residence, it does give rise to a strong presumption of
residence especially in this case where DOMINO registered in his former barangay.
Exercising the right of election franchise is a deliberate public assertion of the fact of
residence, and is said to have decided preponderance in a doubtful case upon the place
the elector claims as, or believes to be, his residence. 31 The fact that a party
continuously voted in a particular locality is a strong factor in assisting to determine the
status of his domicile. 32
His claim that his registration in Quezon City was erroneous and was caused by events
over which he had no control cannot be sustained. The general registration of voters for
purposes of the May 1998 elections was scheduled for two (2) consecutive weekends,
viz.: June 14, 15, 21, and 22. 33
While, Domino's intention to establish residence in Sarangani can be gleaned from the
fact that be bought the house he was renting on November 4, 1997, that he sought
cancellation of his previous registration in Quezon City on 22 October 1997, 34 and that
he applied for transfer of registration from Quezon City to Sarangani by reason of change
of residence on 30 August 1997, 35 DOMINO still falls short of the one year residency
requirement under the Constitution. LLpr
In showing compliance with the residency requirement, both intent and actual presence
in the district one intends to represent must satisfy the length of time prescribed by the
fundamental law. 36 Domino's failure to do so rendered him ineligible and his election to
office null and void. 37
The Third Issue.
DOMINO's contention that the COMELEC has no jurisdiction in the present petition is
bereft of merit.
As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election
Code, has jurisdiction over a petition to deny due course to or cancel certificate of
candidacy. Such jurisdiction continues even after election, if for any reason no final
judgment of disqualification is rendered before the election, and the candidate facing
disqualification is voted for and receives the highest number of votes 38 and provided
further that the winning candidate has not been proclaimed or has taken his oath of office.
39
It has been repeatedly held in a number of cases, that the House of Representatives
Electoral Tribunal's sole and exclusive jurisdiction over all contests relating to the election,
returns and qualifications of members of Congress as provided under Section 17 of Article
VI of the Constitution begins only after a candidate has become a member of the House
of Representatives. 40
The fact of obtaining the highest number of votes in an election does not automatically
vest the position in the winning candidate. 41 A candidate must be proclaimed and must
115
have taken his oath of office before he can be considered a member of the House of
Representatives.
In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone
Congressional District of the Province of Sarangani by reason of a Supplemental
Omnibus Resolution issued by the COMELEC on the day of the election ordering the
suspension of DOMINO's proclamation should he obtain the winning number of votes.
This resolution was issued by the COMELEC in view of the non-finality of its 6 May 1998
resolution disqualifying DOMINO as candidate for the position.
Considering that DOMINO has not been proclaimed as Congressman-elect in the Lone
Congressional District of the Province of Sarangani he cannot be deemed a member of
the House of Representative. Hence, it is the COMELEC and not the Electoral Tribunal
which has jurisdiction over the issue of his ineligibility as a candidate. 42 prLL
Issue raised by INTERVENOR.
After finding that DOMINO is disqualified as candidate for the position of representative
of the province of Sarangani, may INTERVENOR, as the candidate who received the next
highest number of votes, be proclaimed as the winning candidate?
It is now settled doctrine that the candidate who obtains the second highest number of
votes may not be proclaimed winner in case the winning candidate is disqualified. 43 In
every election, the people's choice is the paramount consideration and their expressed
will must, at all times, be given effect. When the majority speaks and elects into office a
candidate by giving the highest number of votes cast in the election for that office, no one
can be declared elected in his place. 44
It would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not choose him. 45 To
simplistically assume that the second placer would have received the other votes would
be to substitute our judgment for the mind of the voters. He could not be considered the
first among qualified candidates because in a field which excludes the qualified candidate,
the conditions would have substantially changed. 46
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is fundamental idea in
all republican forms of government that no one can be declared elected and no measure
can be declared carried unless he or it receives a majority or plurality of the legal votes
cast in the election. 47
The effect of a decision declaring a person ineligible to hold an office is only that the
election fails entirely, that the wreath of victory cannot be transferred 48 from the
disqualified winner to the repudiated loser because the law then as now only authorizes
a declaration of election in favor of the person who have obtained a plurality of votes 49
and does not entitle the candidate receiving the next highest number of votes to be
declared elected. In such case, the electors have failed to make a choice and the election
is a nullity. 50 To allow the defeated and repudiated candidate to take over the elective
position despite his rejection by the electorate is to disenfranchise the electorate without
any fault on their part and to undermine the importance and meaning of democracy and
the people's right to elect officials of their choice. 51
INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes
cannot be sustained. INTERVENOR's reliance on the opinion made in the Labo, Jr. case
116
52 to wit: if the electorate, fully aware in fact and in law of a candidate's disqualification
so as to bring such awareness within the realm of notoriety, would nevertheless cast their
votes in favor of the ineligible candidate, the electorate may be said to have waived the
validity and efficacy of their votes by notoriously misapplying their franchise or throwing
away their votes, in which case, the eligible candidate obtaining the next higher number
of votes may be deemed elected, is misplaced. cdasia
Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public
as an ineligible candidate. Although the resolution declaring him ineligible as candidate
was rendered before the election, however, the same is not yet final and executory. In
fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046
that allowed DOMINO to be voted for the office and ordered that the votes cast for him
be counted as the Resolution declaring him ineligible has not yet attained finality. Thus
the votes cast for DOMINO are presumed to have been cast in the sincere belief that he
was a qualified candidate, without any intention to misapply their franchise. Thus, said
votes can not be treated as stray, void, or meaningless. 53
WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of
the COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En
Banc, are hereby AFFIRMED.
SO ORDERED.
Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Buena, Gonzaga-Reyes and
Ynares-Santiago, JJ., concur.
Panganiban, J., concurs in the result; please see Separate Opinion.
Quisumbing, J., concurs in the result; only insofar as petitioner Domino is adjudged
disqualified.
Purisima and Pardo, JJ., took no part.
||| (Domino v. Commission on Elections, G.R. No. 134015, [July 19, 1999], 369 PHIL 798829)
4. PAMATONG VS. COMELEC 427 SCRA 96 (2004)
EN BANC
[G.R. No. 161872. April 13, 2004.]
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
RESOLUTION
TINGA, J p:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on
December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give
due course to petitioners Certificate of Candidacy in its Resolution No. 6558 dated
January 17, 2004. The decision, however, was not unanimous since Commissioners
Luzviminda G. Tancangco and Mehol K. Sadain voted to include petitioner as they
believed he had parties or movements to back up his candidacy.
117
On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558.
Petitioners Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The
COMELEC, acting on petitioners Motion for Reconsideration and on similar motions filed
by other aspirants for national elective positions, denied the same under the aegis of
Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared
petitioner and thirty-five (35) others nuisance candidates who could not wage a
nationwide campaign and/or are not nominated by a political party or are not supported
by a registered political party with a national constituency. Commissioner Sadain
maintained his vote for petitioner. By then, Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which
were allegedly rendered in violation of his right to equal access to opportunities for public
service under Section 26, Article II of the 1987 Constitution, 1 by limiting the number of
qualified candidates only to those who can afford to wage a nationwide campaign and/or
are nominated by political parties. In so doing, petitioner argues that the COMELEC
indirectly amended the constitutional provisions on the electoral process and limited the
power of the sovereign people to choose their leaders. The COMELEC supposedly erred
in disqualifying him since he is the most qualified among all the presidential candidates,
i.e., he possesses all the constitutional and legal qualifications for the office of the
president, he is capable of waging a national campaign since he has numerous national
organizations under his leadership, he also has the capacity to wage an international
campaign since he has practiced law in other countries, and he has a platform of
government. Petitioner likewise attacks the validity of the form for the Certificate of
Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide
clear and reasonable guidelines for determining the qualifications of candidates since it
does not ask for the candidates bio-data and his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioners invocation of the constitutional provision ensuring equal access
to opportunities for public office is the claim that there is a constitutional right to run for
or hold public office and, particularly in his case, to seek the presidency. There is none.
What is recognized is merely a privilege subject to limitations imposed by law. Section
26, Article II of the Constitution neither bestows such a right nor elevates the privilege to
the level of an enforceable right. There is nothing in the plain language of the provision
which suggests such a thrust or justifies an interpretation of the sort.
The equal access provision is a subsumed part of Article II of the Constitution, entitled
Declaration of Principles and State Policies. The provisions under the Article are
generally considered not self-executing, 2 and there is no plausible reason for according
a different treatment to the equal access provision. Like the rest of the policies
enumerated in Article II, the provision does not contain any judicially enforceable
constitutional right but merely specifies a guideline for legislative or executive action. 3
The disregard of the provision does not give rise to any cause of action before the courts.
4
An inquiry into the intent of the framers 5 produces the same determination that the
provision is not self-executory. The original wording of the present Section 26, Article II
had read, The State shall broaden opportunities to public office and prohibit public
dynasties. 6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought
forth an amendment that changed the word broaden to the phrase ensure equal
access, and the substitution of the word office to service. He explained his proposal
in this wise:
I changed the word broaden to ENSURE EQUAL ACCESS TO because what is
important would be equal access to the opportunity. If you broaden, it would necessarily
mean that the government would be mandated to create as many offices as are possible
118
to accommodate as many people as are also possible. That is the meaning of broadening
opportunities to public service. So, in order that we should not mandate the State to make
the government the number one employer and to limit offices only to what may be
necessary and expedient yet offering equal opportunities to access to it, I change the
word broaden. 7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive measures
that would accommodate as many people as possible into public office. The approval of
the Davide amendment indicates the design of the framers to cast the provision as
simply enunciatory of a desired policy objective and not reflective of the imposition of a
clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded as the
source of positive rights. It is difficult to interpret the clause as operative in the absence
of legislation since its effective means and reach are not properly defined. Broadly written,
the myriad of claims that can be subsumed under this rubric appear to be entirely openended. 8 Words and phrases such as equal access, opportunities, and public service
are susceptible to countless interpretations owing to their inherent impreciseness.
Certainly, it was not the intention of the framers to inflict on the people an operative but
amorphous foundation from which innately unenforceable rights may be sourced.
HCTEDa
As earlier noted, the privilege of equal access to opportunities to public office may be
subjected to limitations. Some valid limitations specifically on the privilege to seek elective
office are found in the provisions 9 of the Omnibus Election Code on Nuisance
Candidates and COMELEC Resolution No. 6452 10 dated December 10, 2002 outlining
the instances wherein the COMELEC may motu proprio refuse to give due course to or
cancel a Certificate of Candidacy.
As long as the limitations apply to everybody equally without discrimination, however, the
equal access clause is not violated. Equality is not sacrificed as long as the burdens
engendered by the limitations are meant to be borne by any one who is minded to file a
certificate of candidacy. In the case at bar, there is no showing that any person is exempt
from the limitations or the burdens which they create.
Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of
the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December
2003. Thus, their presumed validity stands and has to be accorded due weight.
Clearly, therefore, petitioners reliance on the equal access clause in Section 26, Article
II of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the disqualification
of candidates who have not evinced a bona fide intention to run for office is easy to divine.
The State has a compelling interest to ensure that its electoral exercises are rational,
objective, and orderly. Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater the number of candidates,
the greater the opportunities for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the election. These practical difficulties
should, of course, never exempt the State from the conduct of a mandated electoral
exercise. At the same time, remedial actions should be available to alleviate these
logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is
not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic
institutions. As the United States Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary showing of a
significant modicum of support before printing the name of a political organization and its
119
candidates on the ballot the interest, if no other, in avoiding confusion, deception and
even frustration of the democratic [process]. 11
The COMELEC itself recognized these practical considerations when it promulgated
Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of its Law
Department dated 11 January 2004. As observed in the COMELECs Comment:
There is a need to limit the number of candidates especially in the case of candidates for
national positions because the election process becomes a mockery even if those who
cannot clearly wage a national campaign are allowed to run. Their names would have to
be printed in the Certified List of Candidates, Voters Information Sheet and the Official
Ballots. These would entail additional costs to the government. For the official ballots in
automated counting and canvassing of votes, an additional page would amount to more
or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00).
. . . [I]t serves no practical purpose to allow those candidates to continue if they cannot
wage a decent campaign enough to project the prospect of winning, no matter how slim.
12
The preparation of ballots is but one aspect that would be affected by allowance of
nuisance candidates to run in the elections. Our election laws provide various
entitlements for candidates for public office, such as watchers in every polling place, 13
watchers in the board of canvassers, 14 or even the receipt of electoral contributions. 15
Moreover, there are election rules and regulations the formulations of which are
dependent on the number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance candidacy becomes
even more galling. The organization of an election with bona fide candidates standing is
onerous enough. To add into the mix candidates with no serious intentions or capabilities
to run a viable campaign would actually impair the electoral process. This is not to mention
the candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll
body would be bogged by irrelevant minutiae covering every step of the electoral process,
most probably posed at the instance of these nuisance candidates. It would be a
senseless sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly election, the State could
exclude nuisance candidates and need not indulge in, as the song goes, their trips to the
moon on gossamer wings.
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the
compelling State interest to ensure orderly and credible elections by excising
impediments thereto, such as nuisance candidacies that distract and detract from the
larger purpose. The COMELEC is mandated by the Constitution with the administration
of elections 16 and endowed with considerable latitude in adopting means and methods
that will ensure the promotion of free, orderly and honest elections. 17 Moreover, the
Constitution guarantees that only bona fide candidates for public office shall be free from
any form of harassment and discrimination. 18 The determination of bona fide candidates
is governed by the statutes, and the concept, to our mind is, satisfactorily defined in the
Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper application
in the case of the petitioner cannot be tested and reviewed by this Court on the basis of
what is now before it. The assailed resolutions of the COMELEC do not direct the Court
120
to the evidence which it considered in determining that petitioner was a nuisance

candidate. This precludes the Court from reviewing at this instance whether the
COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a
review would necessarily take into account the matters which the COMELEC considered
in arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of various documents purportedly
evincing his credentials as an eligible candidate for the presidency. Yet this Court, not
being a trier of facts, can not properly pass upon the reproductions as evidence at this
level. Neither the COMELEC nor the Solicitor General appended any document to their
respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal and
factual. The basis of the factual determination is not before this Court. Thus, the remand
of this case for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioners aspiration and offer to serve
in the government. It deserves not a cursory treatment but a hearing which conforms to
the requirements of due process.
As to petitioners attacks on the validity of the form for the certificate of candidacy, suffice
it to say that the form strictly complies with Section 74 of the Omnibus Election Code. This
provision specifically enumerates what a certificate of candidacy should contain, with the
required information tending to show that the candidate possesses the minimum
qualifications for the position aspired for as established by the Constitution and other
election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby
remanded to the COMELEC for the reception of further evidence, to determine the
question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as
contemplated in Section 69 of the Omnibus Election Code.
The COMELEC is directed to hold and complete the reception of evidence and report its
findings to this Court with deliberate dispatch.
SO ORDERED. ACTEHI
Davide, Jr., C .J ., Puno, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ
., concur.
||| (Pamatong v. Commission on Elections, G.R. No. 161872, [April 13, 2004])
5. YRASUEGI VS. PAL 569 SCRA 467 (2008)
THIRD DIVISION
[G.R. No. 168081. October 17, 2008.]
ARMANDO G. YRASUEGUI, petitioner, vs. PHILIPPINE AIRLINES, INC., respondent.
DECISION
REYES, R.T., J p:
THIS case portrays the peculiar story of an international flight steward who was dismissed
because of his failure to adhere to the weight standards of the airline company. CacTSI
121
He is now before this Court via a petition for review on certiorari claiming that he was
illegally dismissed. To buttress his stance, he argues that (1) his dismissal does not fall
under 282 (e) of the Labor Code; (2) continuing adherence to the weight standards of the
company is not a bona fide occupational qualification; and (3) he was discriminated
against because other overweight employees were promoted instead of being disciplined.
After a meticulous consideration of all arguments pro and con, We uphold the legality of
dismissal. Separation pay, however, should be awarded in favor of the employee as an
act of social justice or based on equity. This is so because his dismissal is not for serious
misconduct. Neither is it reflective of his moral character.
The Facts
Petitioner Armando G. Yrasuegui was a former international flight steward of Philippine
Airlines, Inc. (PAL). He stands five feet and eight inches (5'8") with a large body frame.
The proper weight for a man of his height and body structure is from 147 to 166 pounds,
the ideal weight being 166 pounds, as mandated by the Cabin and Crew Administration
Manual 1 of PAL. cIADTC
The weight problem of petitioner dates back to 1984. Back then, PAL advised him to go
on an extended vacation leave from December 29, 1984 to March 4, 1985 to address his
weight concerns. Apparently, petitioner failed to meet the company's weight standards,
prompting another leave without pay from March 5, 1985 to November 1985.
After meeting the required weight, petitioner was allowed to return to work. But petitioner's
weight problem recurred. He again went on leave without pay from October 17, 1988 to
February 1989.
On April 26, 1989, petitioner weighed 209 pounds, 43 pounds over his ideal weight. In
line with company policy, he was removed from flight duty effective May 6, 1989 to July
3, 1989. He was formally requested to trim down to his ideal weight and report for weight
checks on several dates. He was also told that he may avail of the services of the
company physician should he wish to do so. He was advised that his case will be
evaluated on July 3, 1989. 2
On February 25, 1989, petitioner underwent weight check. It was discovered that he
gained, instead of losing, weight. He was overweight at 215 pounds, which is 49 pounds
beyond the limit. Consequently, his off-duty status was retained. DcCHTa
On October 17, 1989, PAL Line Administrator Gloria Dizon personally visited petitioner at
his residence to check on the progress of his effort to lose weight. Petitioner weighed 217
pounds, gaining 2 pounds from his previous weight. After the visit, petitioner made a
commitment 3 to reduce weight in a letter addressed to Cabin Crew Group Manager
Augusto Barrios. The letter, in full, reads:
Dear Sir:
I would like to guaranty my commitment towards a weight loss from 217 pounds to 200
pounds from today until 31 Dec. 1989. AaSHED
From thereon, I promise to continue reducing at a reasonable percentage until such time
that my ideal weight is achieved.
Likewise, I promise to personally report to your office at the designated time schedule you
will set for my weight check.
Respectfully Yours,
122
F/S Armando Yrasuegui 4

Despite the lapse of a ninety-day period given him to reach his ideal weight, petitioner
remained overweight. On January 3, 1990, he was informed of the PAL decision for him
to remain grounded until such time that he satisfactorily complies with the weight
standards. Again, he was directed to report every two weeks for weight checks. SEcAIC
Petitioner failed to report for weight checks. Despite that, he was given one more month
to comply with the weight requirement. As usual, he was asked to report for weight check
on different dates. He was reminded that his grounding would continue pending
satisfactory compliance with the weight standards. 5
Again, petitioner failed to report for weight checks, although he was seen submitting his
passport for processing at the PAL Staff Service Division.
On April 17, 1990, petitioner was formally warned that a repeated refusal to report for
weight check would be dealt with accordingly. He was given another set of weight check
dates. 6 Again, petitioner ignored the directive and did not report for weight checks. On
June 26, 1990, petitioner was required to explain his refusal to undergo weight checks. 7
When petitioner tipped the scale on July 30, 1990, he weighed at 212 pounds. Clearly,
he was still way over his ideal weight of 166 pounds. EaScHT
From then on, nothing was heard from petitioner until he followed up his case requesting
for leniency on the latter part of 1992. He weighed at 219 pounds on August 20, 1992 and
205 pounds on November 5, 1992.
On November 13, 1992, PAL finally served petitioner a Notice of Administrative Charge
for violation of company standards on weight requirements. He was given ten (10) days
from receipt of the charge within which to file his answer and submit controverting
evidence. 8
On December 7, 1992, petitioner submitted his Answer. 9 Notably, he did not deny being
overweight. What he claimed, instead, is that his violation, if any, had already been
condoned by PAL since "no action has been taken by the company" regarding his case
"since 1988". He also claimed that PAL discriminated against him because "the company
has not been fair in treating the cabin crew members who are similarly situated". TcCDIS
On December 8, 1992, a clarificatory hearing was held where petitioner manifested that
he was undergoing a weight reduction program to lose at least two (2) pounds per week
so as to attain his ideal weight. 10
On June 15, 1993, petitioner was formally informed by PAL that due to his inability to
attain his ideal weight, "and considering the utmost leniency" extended to him "which
spanned a period covering a total of almost five (5) years", his services were considered
terminated "effective immediately". 11
His motion for reconsideration having been denied, 12 petitioner filed a complaint for
illegal dismissal against PAL. HcSCED
Labor Arbiter, NLRC and CA Dispositions
On November 18, 1998, Labor Arbiter Valentin C. Reyes ruled 13 that petitioner was
illegally dismissed. The dispositive part of the Arbiter ruling runs as follows:
123
WHEREFORE, in view of the foregoing, judgment is hereby rendered, declaring the

complainant's dismissal illegal, and ordering the respondent to reinstate him to his former
position or substantially equivalent one, and to pay him:
a. Backwages of Php10,500.00 per month from his dismissal on June 15, 1993 until
reinstated, which for purposes of appeal is hereby set from June 15, 1993 up to August
15, 1998 at P651,000.00; ITDHcA
b. Attorney's fees of five percent (5%) of the total award.
SO ORDERED. 14
The Labor Arbiter held that the weight standards of PAL are reasonable in view of the
nature of the job of petitioner. 15 However, the weight standards need not be complied
with under pain of dismissal since his weight did not hamper the performance of his duties.
16 Assuming that it did, petitioner could be transferred to other positions where his weight
would not be a negative factor. 17 Notably, other overweight employees, i.e., Mr.
Palacios, Mr. Cui, and Mr. Barrios, were promoted instead of being disciplined. 18
Both parties appealed to the National Labor Relations Commission (NLRC). 19
On October 8, 1999, the Labor Arbiter issued a writ of execution directing the
reinstatement of petitioner without loss of seniority rights and other benefits. 20
On February 1, 2000, the Labor Arbiter denied 21 the Motion to Quash Writ of Execution
22 of PAL. HCEaDI
On March 6, 2000, PAL appealed the denial of its motion to quash to the NLRC. 23
On June 23, 2000, the NLRC rendered judgment 24 in the following tenor:
WHEREFORE, premises considered[,] the Decision of the Arbiter dated 18 November
1998 as modified by our findings herein, is hereby AFFIRMED and that part of the
dispositive portion of said decision concerning complainant's entitlement to backwages
shall be deemed to refer to complainant's entitlement to his full backwages, inclusive of
allowances and to his other benefits or their monetary equivalent instead of simply
backwages, from date of dismissal until his actual reinstatement or finality hereof.
Respondent is enjoined to manifests (sic) its choice of the form of the reinstatement of
complainant, whether physical or through payroll within ten (10) days from notice failing
which, the same shall be deemed as complainant's reinstatement through payroll and
execution in case of non-payment shall accordingly be issued by the Arbiter. Both appeals
of respondent thus, are DISMISSED for utter lack of merit. 25
According to the NLRC, "obesity, or the tendency to gain weight uncontrollably regardless
of the amount of food intake, is a disease in itself". 26 As a consequence, there can be
no intentional defiance or serious misconduct by petitioner to the lawful order of PAL for
him to lose weight. 27
Like the Labor Arbiter, the NLRC found the weight standards of PAL to be reasonable.
However, it found as unnecessary the Labor Arbiter holding that petitioner was not remiss
in the performance of his duties as flight steward despite being overweight. According to
the NLRC, the Labor Arbiter should have limited himself to the issue of whether the failure
of petitioner to attain his ideal weight constituted willful defiance of the weight standards
of PAL. 28
124
PAL moved for reconsideration to no avail. 29 Thus, PAL elevated the matter to the Court
of Appeals (CA) via a petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure. 30
By Decision dated August 31, 2004, the CA reversed 31 the NLRC:
WHEREFORE, premises considered, we hereby GRANT the petition. The assailed NLRC
decision is declared NULL and VOID and is hereby SET ASIDE. The private respondent's
complaint is hereby DISMISSED. No costs. caITAC
SO ORDERED. 32
The CA opined that there was grave abuse of discretion on the part of the NLRC because
it "looked at wrong and irrelevant considerations" 33 in evaluating the evidence of the
parties. Contrary to the NLRC ruling, the weight standards of PAL are meant to be a
continuing qualification for an employee's position. 34 The failure to adhere to the weight
standards is an analogous cause for the dismissal of an employee under Article 282 (e)
of the Labor Code in relation to Article 282 (a). It is not willful disobedience as the NLRC
seemed to suggest. 35 Said the CA, "the element of willfulness that the NLRC decision
cites is an irrelevant consideration in arriving at a conclusion on whether the dismissal is
legally proper". 36 In other words, "the relevant question to ask is not one of willfulness
but one of reasonableness of the standard and whether or not the employee qualifies or
continues to qualify under this standard". 37
Just like the Labor Arbiter and the NLRC, the CA held that the weight standards of PAL
are reasonable. 38 Thus, petitioner was legally dismissed because he repeatedly failed
to meet the prescribed weight standards. 39 It is obvious that the issue of discrimination
was only invoked by petitioner for purposes of escaping the result of his dismissal for
being overweight. 40
On May 10, 2005, the CA denied petitioner's motion for reconsideration. 41 Elaborating
on its earlier ruling, the CA held that the weight standards of PAL are a bona fide
occupational qualification which, in case of violation, "justifies an employee's separation
from the service". 42
Issues
In this Rule 45 petition for review, the following issues are posed for resolution:
I.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
PETITIONER'S OBESITY CAN BE A GROUND FOR DISMISSAL UNDER PARAGRAPH
(e) OF ARTICLE 282 OF THE LABOR CODE OF THE PHILIPPINES;
II.
PETITIONER'S DISMISSAL FOR OBESITY CAN BE PREDICATED ON THE "BONA
FIDE OCCUPATIONAL QUALIFICATION (BFOQ) DEFENSE";
III.
PETITIONER WAS NOT UNDULY DISCRIMINATED AGAINST WHEN HE WAS
DISMISSED WHILE OTHER OVERWEIGHT CABIN ATTENDANTS WERE EITHER
GIVEN FLYING DUTIES OR PROMOTED;
125
IV.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT
BRUSHED ASIDE PETITIONER'S CLAIMS FOR REINSTATEMENT [AND] WAGES
ALLEGEDLY FOR BEING MOOT AND ACADEMIC. 43 (Underscoring supplied)
Our Ruling
I. The obesity of petitioner is a ground for dismissal under Article 282 (e) 44 of the Labor
Code.
A reading of the weight standards of PAL would lead to no other conclusion than that they
constitute a continuing qualification of an employee in order to keep the job. Tersely put,
an employee may be dismissed the moment he is unable to comply with his ideal weight
as prescribed by the weight standards. The dismissal of the employee would thus fall
under Article 282 (e) of the Labor Code. As explained by the CA:
. . . [T]he standards violated in this case were not mere "orders" of the employer; they
were the "prescribed weights" that a cabin crew must maintain in order to qualify for and
keep his or her position in the company. In other words, they were standards that establish
continuing qualifications for an employee's position. In this sense, the failure to maintain
these standards does not fall under Article 282 (a) whose express terms require the
element of willfulness in order to be a ground for dismissal. The failure to meet the
employer's qualifying standards is in fact a ground that does not squarely fall under
grounds (a) to (d) and is therefore one that falls under Article 282(e) the "other causes
analogous to the foregoing". TAIDHa
By its nature, these "qualifying standards" are norms that apply prior to and after an
employee is hired. They apply prior to employment because these are the standards a
job applicant must initially meet in order to be hired. They apply after hiring because an
employee must continue to meet these standards while on the job in order to keep his
job. Under this perspective, a violation is not one of the faults for which an employee can
be dismissed pursuant to pars. (a) to (d) of Article 282; the employee can be dismissed
simply because he no longer "qualifies" for his job irrespective of whether or not the failure
to qualify was willful or intentional. . . . 45
Petitioner, though, advances a very interesting argument. He claims that obesity is a
"physical abnormality and/or illness". 46 Relying on Nadura v. Benguet Consolidated,
Inc., 47 he says his dismissal is illegal:
Conscious of the fact that Nadura's case cannot be made to fall squarely within the
specific causes enumerated in subparagraphs 1(a) to (e), Benguet invokes the provisions
of subparagraph 1(f) and says that Nadura's illness occasional attacks of asthma is
a cause analogous to them. IASCTD
Even a cursory reading of the legal provision under consideration is sufficient to convince
anyone that, as the trial court said, "illness cannot be included as an analogous cause by
any stretch of imagination".
It is clear that, except the just cause mentioned in sub-paragraph 1(a), all the others
expressly enumerated in the law are due to the voluntary and/or willful act of the
employee. How Nadura's illness could be considered as "analogous" to any of them is
beyond our understanding, there being no claim or pretense that the same was contracted
through his own voluntary act. 48
The reliance on Nadura is off-tangent. The factual milieu in Nadura is substantially
different from the case at bar. First, Nadura was not decided under the Labor Code. The
law applied in that case was Republic Act (RA) No. 1787. Second, the issue of flight safety
126
is absent in Nadura, thus, the rationale there cannot apply here. Third, in Nadura, the
employee who was a miner, was laid off from work because of illness, i.e., asthma. Here,
petitioner was dismissed for his failure to meet the weight standards of PAL. He was not
dismissed due to illness. Fourth, the issue in Nadura is whether or not the dismissed
employee is entitled to separation pay and damages. Here, the issue centers on the
propriety of the dismissal of petitioner for his failure to meet the weight standards of PAL.
Fifth, in Nadura, the employee was not accorded due process. Here, petitioner was
accorded utmost leniency. He was given more than four (4) years to comply with the
weight standards of PAL. STcaDI
In the case at bar, the evidence on record militates against petitioner's claims that obesity
is a disease. That he was able to reduce his weight from 1984 to 1992 clearly shows that
it is possible for him to lose weight given the proper attitude, determination, and selfdiscipline. Indeed, during the clarificatory hearing on December 8, 1992, petitioner himself
claimed that "[t]he issue is could I bring my weight down to ideal weight which is 172, then
the answer is yes. I can do it now". 49
True, petitioner claims that reducing weight is costing him "a lot of expenses". 50
However, petitioner has only himself to blame. He could have easily availed the
assistance of the company physician, per the advice of PAL. 51 He chose to ignore the
suggestion. In fact, he repeatedly failed to report when required to undergo weight
checks, without offering a valid explanation. Thus, his fluctuating weight indicates
absence of willpower rather than an illness. EScHDA
Petitioner cites Bonnie Cook v. State of Rhode Island, Department of Mental Health,
Retardation and Hospitals, 52 decided by the United States Court of Appeals (First
Circuit). In that case, Cook worked from 1978 to 1980 and from 1981 to 1986 as an
institutional attendant for the mentally retarded at the Ladd Center that was being
operated by respondent. She twice resigned voluntarily with an unblemished record. Even
respondent admitted that her performance met the Center's legitimate expectations. In
1988, Cook re-applied for a similar position. At that time, "she stood 5'2" tall and weighed
over 320 pounds". Respondent claimed that the morbid obesity of plaintiff compromised
her ability to evacuate patients in case of emergency and it also put her at greater risk of
serious diseases.
Cook contended that the action of respondent amounted to discrimination on the basis of
a handicap. This was in direct violation of Section 504 (a) of the Rehabilitation Act of
1973, 53 which incorporates the remedies contained in Title VI of the Civil Rights Act of
1964. Respondent claimed, however, that morbid obesity could never constitute a
handicap within the purview of the Rehabilitation Act. Among others, obesity is a mutable
condition, thus plaintiff could simply lose weight and rid herself of concomitant disability.
cIHDaE
The appellate Court disagreed and held that morbid obesity is a disability under the
Rehabilitation Act and that respondent discriminated against Cook based on "perceived"
disability. The evidence included expert testimony that morbid obesity is a physiological
disorder. It involves a dysfunction of both the metabolic system and the neurological
appetite suppressing signal system, which is capable of causing adverse effects within
the musculoskeletal, respiratory, and cardiovascular systems. Notably, the Court stated
that "mutability is relevant only in determining the substantiality of the limitation flowing
from a given impairment", thus "mutability only precludes those conditions that an
individual can easily and quickly reverse by behavioral alteration".
Unlike Cook, however, petitioner is not morbidly obese. In the words of the District Court
for the District of Rhode Island, Cook was sometime before 1978 "at least one hundred
127
pounds more than what is considered appropriate of her height". According to the Circuit
Judge, Cook weighed "over 320 pounds" in 1988. Clearly, that is not the case here. At
his heaviest, petitioner was only less than 50 pounds over his ideal weight. CEDScA
In fine, We hold that the obesity of petitioner, when placed in the context of his work as
flight attendant, becomes an analogous cause under Article 282 (e) of the Labor Code
that justifies his dismissal from the service. His obesity may not be unintended, but is
nonetheless voluntary. As the CA correctly puts it, "[v]oluntariness basically means that
the just cause is solely attributable to the employee without any external force influencing
or controlling his actions. This element runs through all just causes under Article 282,
whether they be in the nature of a wrongful action or omission. Gross and habitual neglect,
a recognized just cause, is considered voluntary although it lacks the element of intent
found in Article 282 (a), (c), and (d)." 54
II. The dismissal of petitioner can be predicated on the bona fide occupational qualification
defense.
Employment in particular jobs may not be limited to persons of a particular sex, religion,
or national origin unless the employer can show that sex, religion, or national origin is an
actual qualification for performing the job. The qualification is called a bona fide
occupational qualification (BFOQ). 55 In the United States, there are a few federal and
many state job discrimination laws that contain an exception allowing an employer to
engage in an otherwise unlawful form of prohibited discrimination when the action is
based on a BFOQ necessary to the normal operation of a business or enterprise. 56
Petitioner contends that BFOQ is a statutory defense. It does not exist if there is no statute
providing for it. 57 Further, there is no existing BFOQ statute that could justify his
dismissal. 58
Both arguments must fail.
First, the Constitution, 59 the Labor Code, 60 and RA No. 7277 61 or the Magna Carta
for Disabled Persons 62 contain provisions similar to BFOQ. DcAaSI
Second, in British Columbia Public Service Employee Commission (BSPSERC) v. The
British Columbia Government and Service Employee's Union (BCGSEU), 63 the
Supreme Court of Canada adopted the so-called "Meiorin Test" in determining whether
an employment policy is justified. Under this test, (1) the employer must show that it
adopted the standard for a purpose rationally connected to the performance of the job;
64 (2) the employer must establish that the standard is reasonably necessary 65 to the
accomplishment of that work-related purpose; and (3) the employer must establish that
the standard is reasonably necessary in order to accomplish the legitimate work-related
purpose. Similarly, in Star Paper Corporation v. Simbol, 66 this Court held that in order to
justify a BFOQ, the employer must prove that (1) the employment qualification is
reasonably related to the essential operation of the job involved; and (2) that there is
factual basis for believing that all or substantially all persons meeting the qualification
would be unable to properly perform the duties of the job. 67
In short, the test of reasonableness of the company policy is used because it is parallel
to BFOQ. 68 BFOQ is valid "provided it reflects an inherent quality reasonably necessary
for satisfactory job performance". 69
In Duncan Association of Detailman-PTGWTO v. Glaxo Wellcome Philippines, Inc., 70
the Court did not hesitate to pass upon the validity of a company policy which prohibits
its employees from marrying employees of a rival company. It was held that the company
policy is reasonable considering that its purpose is the protection of the interests of the
128
company against possible competitor infiltration on its trade secrets and procedures.
TASCDI
Verily, there is no merit to the argument that BFOQ cannot be applied if it has no
supporting statute. Too, the Labor Arbiter, 71 NLRC, 72 and CA 73 are one in holding
that the weight standards of PAL are reasonable. A common carrier, from the nature of
its business and for reasons of public policy, is bound to observe extraordinary diligence
for the safety of the passengers it transports. 74 It is bound to carry its passengers safely
as far as human care and foresight can provide, using the utmost diligence of very
cautious persons, with due regard for all the circumstances. 75
The law leaves no room for mistake or oversight on the part of a common carrier. Thus,
it is only logical to hold that the weight standards of PAL show its effort to comply with the
exacting obligations imposed upon it by law by virtue of being a common carrier. cSDHEC
The business of PAL is air transportation. As such, it has committed itself to safely
transport its passengers. In order to achieve this, it must necessarily rely on its
employees, most particularly the cabin flight deck crew who are on board the aircraft. The
weight standards of PAL should be viewed as imposing strict norms of discipline upon its
employees.
In other words, the primary objective of PAL in the imposition of the weight standards for
cabin crew is flight safety. It cannot be gainsaid that cabin attendants must maintain agility
at all times in order to inspire passenger confidence on their ability to care for the
passengers when something goes wrong. It is not farfetched to say that airline
companies, just like all common carriers, thrive due to public confidence on their safety
records. People, especially the riding public, expect no less than that airline companies
transport their passengers to their respective destinations safely and soundly. A lesser
performance is unacceptable. aAEIHC
The task of a cabin crew or flight attendant is not limited to serving meals or attending to
the whims and caprices of the passengers. The most important activity of the cabin crew
is to care for the safety of passengers and the evacuation of the aircraft when an
emergency occurs. Passenger safety goes to the core of the job of a cabin attendant.
Truly, airlines need cabin attendants who have the necessary strength to open
emergency doors, the agility to attend to passengers in cramped working conditions, and
the stamina to withstand grueling flight schedules.
On board an aircraft, the body weight and size of a cabin attendant are important factors
to consider in case of emergency. Aircrafts have constricted cabin space, and narrow
aisles and exit doors. Thus, the arguments of respondent that "[w]hether the airline's flight
attendants are overweight or not has no direct relation to its mission of transporting
passengers to their destination"; and that the weight standards "has nothing to do with
airworthiness of respondent's airlines", must fail. DHaEAS
The rationale in Western Air Lines v. Criswell 76 relied upon by petitioner cannot apply to
his case. What was involved there were two (2) airline pilots who were denied
reassignment as flight engineers upon reaching the age of 60, and a flight engineer who
was forced to retire at age 60. They sued the airline company, alleging that the age-60
retirement for flight engineers violated the Age Discrimination in Employment Act of 1967.
Age-based BFOQ and being overweight are not the same. The case of overweight cabin
attendants is another matter. Given the cramped cabin space and narrow aisles and
emergency exit doors of the airplane, any overweight cabin attendant would certainly
have difficulty navigating the cramped cabin area. ADSTCI
In short, there is no need to individually evaluate their ability to perform their task. That
an obese cabin attendant occupies more space than a slim one is an unquestionable fact
129
which courts can judicially recognize without introduction of evidence. 77 It would also be
absurd to require airline companies to reconfigure the aircraft in order to widen the aisles
and exit doors just to accommodate overweight cabin attendants like petitioner.
The biggest problem with an overweight cabin attendant is the possibility of impeding
passengers from evacuating the aircraft, should the occasion call for it. The job of a cabin
attendant during emergencies is to speedily get the passengers out of the aircraft safely.
Being overweight necessarily impedes mobility. Indeed, in an emergency situation,
seconds are what cabin attendants are dealing with, not minutes. Three lost seconds can
translate into three lost lives. Evacuation might slow down just because a wide-bodied
cabin attendant is blocking the narrow aisles. These possibilities are not remote. IcTCHD
Petitioner is also in estoppel. He does not dispute that the weight standards of PAL were
made known to him prior to his employment. He is presumed to know the weight limit that
he must maintain at all times. 78 In fact, never did he question the authority of PAL when
he was repeatedly asked to trim down his weight. Bona fides exigit ut quod convenit fiat.
Good faith demands that what is agreed upon shall be done. Kung ang tao ay tapat
kanyang tutuparin ang napagkasunduan.
Too, the weight standards of PAL provide for separate weight limitations based on height
and body frame for both male and female cabin attendants. A progressive discipline is
imposed to allow non-compliant cabin attendants sufficient opportunity to meet the weight
standards. Thus, the clear-cut rules obviate any possibility for the commission of abuse
or arbitrary action on the part of PAL. HcSaTI
III. Petitioner failed to substantiate his claim that he was discriminated against by PAL.
Petitioner next claims that PAL is using passenger safety as a convenient excuse to
discriminate against him. 79 We are constrained, however, to hold otherwise. We agree
with the CA that "[t]he element of discrimination came into play in this case as a secondary
position for the private respondent in order to escape the consequence of dismissal that
being overweight entailed. It is a confession-and-avoidance position that impliedly
admitted the cause of dismissal, including the reasonableness of the applicable standard
and the private respondent's failure to comply". 80 It is a basic rule in evidence that each
party must prove his affirmative allegation. 81
Since the burden of evidence lies with the party who asserts an affirmative allegation,
petitioner has to prove his allegation with particularity. There is nothing on the records
which could support the finding of discriminatory treatment. Petitioner cannot establish
discrimination by simply naming the supposed cabin attendants who are allegedly
similarly situated with him. Substantial proof must be shown as to how and why they are
similarly situated and the differential treatment petitioner got from PAL despite the
similarity of his situation with other employees. ICHcaD
Indeed, except for pointing out the names of the supposed overweight cabin attendants,
petitioner miserably failed to indicate their respective ideal weights; weights over their
ideal weights; the periods they were allowed to fly despite their being overweight; the
particular flights assigned to them; the discriminating treatment they got from PAL; and
other relevant data that could have adequately established a case of discriminatory
treatment by PAL. In the words of the CA, "PAL really had no substantial case of
discrimination to meet". 82
We are not unmindful that findings of facts of administrative agencies, like the Labor
Arbiter and the NLRC, are accorded respect, even finality. 83 The reason is simple:
administrative agencies are experts in matters within their specific and specialized
130
jurisdiction. 84 But the principle is not a hard and fast rule. It only applies if the findings of
facts are duly supported by substantial evidence. If it can be shown that administrative
bodies grossly misappreciated evidence of such nature so as to compel a conclusion to
the contrary, their findings of facts must necessarily be reversed. Factual findings of
administrative agencies do not have infallibility and must be set aside when they fail the
test of arbitrariness. 85
Here, the Labor Arbiter and the NLRC inexplicably misappreciated evidence. We thus
annul their findings. HSIaAT
To make his claim more believable, petitioner invokes the equal protection clause
guaranty 86 of the Constitution. However, in the absence of governmental interference,
the liberties guaranteed by the Constitution cannot be invoked. 87 Put differently, the Bill
of Rights is not meant to be invoked against acts of private individuals. 88 Indeed, the
United States Supreme Court, in interpreting the Fourteenth Amendment, 89 which is the
source of our equal protection guarantee, is consistent in saying that the equal protection
erects no shield against private conduct, however discriminatory or wrongful. 90 Private
actions, no matter how egregious, cannot violate the equal protection guarantee. 91
IV. The claims of petitioner for reinstatement and wages are moot.
As his last contention, petitioner avers that his claims for reinstatement and wages have
not been mooted. He is entitled to reinstatement and his full backwages, "from the time
he was illegally dismissed" up to the time that the NLRC was reversed by the CA. 92
At this point, Article 223 of the Labor Code finds relevance:
In any event, the decision of the Labor Arbiter reinstating a dismissed or separated
employee, insofar as the reinstatement aspect is concerned, shall immediately be
executory, even pending appeal. The employee shall either be admitted back to work
under the same terms and conditions prevailing prior to his dismissal or separation or, at
the option of the employer, merely reinstated in the payroll. The posting of a bond by the
employer shall not stay the execution for reinstatement provided herein. ATaDHC
The law is very clear. Although an award or order of reinstatement is self-executory and
does not require a writ of execution, 93 the option to exercise actual reinstatement or
payroll reinstatement belongs to the employer. It does not belong to the employee, to the
labor tribunals, or even to the courts.
Contrary to the allegation of petitioner that PAL "did everything under the sun" to frustrate
his "immediate return to his previous position", 94 there is evidence that PAL opted to
physically reinstate him to a substantially equivalent position in accordance with the order
of the Labor Arbiter. 95 In fact, petitioner duly received the return to work notice on
February 23, 2001, as shown by his signature. 96
Petitioner cannot take refuge in the pronouncements of the Court in a case 97 that "[t]he
unjustified refusal of the employer to reinstate the dismissed employee entitles him to
payment of his salaries effective from the time the employer failed to reinstate him despite
the issuance of a writ of execution" 98 and "even if the order of reinstatement of the Labor
Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and
pay the wages of the employee during the period of appeal until reversal by the higher
court". 99 He failed to prove that he complied with the return to work order of PAL. Neither
does it appear on record that he actually rendered services for PAL from the moment he
was dismissed, in order to insist on the payment of his full backwages. cTCEIS
In insisting that he be reinstated to his actual position despite being overweight, petitioner
in effect wants to render the issues in the present case moot. He asks PAL to comply with
131
the impossible. Time and again, the Court ruled that the law does not exact compliance
with the impossible. 100
V. Petitioner is entitled to separation pay.
Be that as it may, all is not lost for petitioner.
Normally, a legally dismissed employee is not entitled to separation pay. This may be
deduced from the language of Article 279 of the Labor Code that "[a]n employee who is
unjustly dismissed from work shall be entitled to reinstatement without loss of seniority
rights and other privileges and to his full backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent computed from the time his compensation was
withheld from him up to the time of his actual reinstatement". Luckily for petitioner, this is
not an ironclad rule. caTESD
Exceptionally, separation pay is granted to a legally dismissed employee as an act "social
justice", 101 or based on "equity". 102 In both instances, it is required that the dismissal
(1) was not for serious misconduct; and (2) does not reflect on the moral character of the
employee. 103
Here, We grant petitioner separation pay equivalent to one-half (1/2) month's pay for
every year of service. 104 It should include regular allowances which he might have been
receiving. 105 We are not blind to the fact that he was not dismissed for any serious
misconduct or to any act which would reflect on his moral character. We also recognize
that his employment with PAL lasted for more or less a decade. HIaTDS
WHEREFORE, the appealed Decision of the Court of Appeals is AFFIRMED but
MODIFIED in that petitioner Armando G. Yrasuegui is entitled to separation pay in an
amount equivalent to one-half (1/2) month's pay for every year of service, which should
include his regular allowances.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Chico-Nazario and Nachura, JJ., concur.
||| (Yrasuegui v. Pilippine Airlines, Inc., G.R. No. 168081, [October 17, 2008], 590 PHIL
490-524)
6. DATU MICHAEL ABAS KIDA vs. SENATE 659 SCRA 270 (2011)
EN BANC
[G.R. No. 196271. October 18, 2011.]
DATU MICHAEL ABAS KIDA, in his personal capacity, and in representation of
MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION,
INC., HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN
TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE
ABDIL, and BASSAM ALUH SAUPI, petitioners, vs. SENATE OF THE PHILIPPINES,
represented by its President JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES,
thru SPEAKER FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its
Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office of the President
Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget, and ROBERTO
TAN, Treasurer of the Philippines, respondents.
[G.R. No. 196305. October 18, 2011.]
132
BASARI D. MAPUPUNO, petitioner, vs. SIXTO BRILLANTES, in his capacity as

Chairman of the Commission on Elections, FLORENCIO ABAD, JR. in his capacity as
Secretary of the Department of Budget and Management, PACQUITO OCHOA, JR., in
his capacity as Executive Secretary, JUAN PONCE ENRILE, in his capacity as Senate
President, and FELICIANO BELMONTE, in his capacity as Speaker of the House of
Representatives, respondents.
[G.R. No. 197221. October 18, 2011.]
REP. EDCEL C. LAGMAN, petitioner, vs. PAQUITO N. OCHOA, JR., in his capacity as
the Executive Secretary, and the COMMISSION ON ELECTIONS, respondents.
[G.R. No. 197280. October 18, 2011.]
ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and PARTIDO
DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDP-LABAN), petitioners, vs. THE
COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR., HON.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON. FLORENCIO
B. ABAD, JR., in his capacity as Secretary of the Department of Budget and Management,
and HON. ROBERTO B. TAN, in his capacity as Treasurer of the Philippines,
respondents.
[G.R. No. 197282. October 18, 2011.]
ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS and
THE OFFICE OF THE PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N.
OCHOA, JR., respondents.
[G.R. No. 197392. October 18, 2011.]
LUIS "BAROK" BIRAOGO, petitioner, vs. THE COMMISSION ON ELECTIONS and
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., respondents.
[G.R. No. 197454. October 18, 2011.]
JACINTO V. PARAS, petitioner, vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR., and the COMMISSION ON ELECTIONS, respondents.
MINORITY RIGHTS FORUM, PHILIPPINES, INC., respondents-intervenor.
DECISION
BRION, J p:
On June 30, 2011, Republic Act (RA) No. 10153, entitled "An Act Providing for the
Synchronization of the Elections in the Autonomous Region in Muslim Mindanao (ARMM)
with the National and Local Elections and for Other Purposes" was enacted. The law reset
the ARMM elections from the 8th of August 2011, to the second Monday of May 2013
and every three (3) years thereafter, to coincide with the country's regular national and
local elections. The law as well granted the President the power to "appoint officers-incharge (OICs) for the Office of the Regional Governor, the Regional Vice-Governor, and
the Members of the Regional Legislative Assembly, who shall perform the functions
pertaining to the said offices until the officials duly elected in the May 2013 elections shall
have qualified and assumed office."
Even before its formal passage, the bills that became RA No. 10153 already spawned
petitions against their validity; House Bill No. 4146 and Senate Bill No. 2756 were
133
challenged in petitions filed with this Court. These petitions multiplied after RA No. 10153
was passed.
Factual Antecedents
The State, through Sections 15 to 22, Article X of the 1987 Constitution, mandated the
creation of autonomous regions in Muslim Mindanao and the Cordilleras. Section 15
states:
Section 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage, economic and social structures,
and other relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the Philippines.
Section 18 of the Article, on the other hand, directed Congress to enact an organic act for
these autonomous regions to concretely carry into effect the granted autonomy.
Section 18. The Congress shall enact an organic act for each autonomous region with
the assistance and participation of the regional consultative commission composed of
representatives appointed by the President from a list of nominees from multisectoral
bodies. The organic act shall define the basic structure of government for the region
consisting of the executive department and legislative assembly, both of which shall be
elective and representative of the constituent political units. The organic acts shall
likewise provide for special courts with personal, family and property law jurisdiction
consistent with the provisions of this Constitution and national laws.
The creation of the autonomous region shall be effective when approved by a majority of
the votes cast by the constituent units in a plebiscite called for the purpose, provided that
only provinces, cities, and geographic areas voting favorably in such plebiscite shall be
included in the autonomous region. aSCHIT
On August 1, 1989 or two years after the effectivity of the 1987 Constitution, Congress
acted through Republic Act (RA) No. 6734 entitled "An Act Providing for an Organic Act
for the Autonomous Region in Muslim Mindanao." A plebiscite was held on November 6,
1990 as required by Section 18 (2), Article X of RA No. 6734, thus fully establishing the
Autonomous Region of Muslim Mindanao (ARMM). The initially assenting provinces were
Lanao del Sur, Maguindanao, Sulu and Tawi-tawi. RA No. 6734 scheduled the first
regular elections for the regional officials of the ARMM on a date not earlier than 60 days
nor later than 90 days after its ratification.
RA No. 9054 (entitled "An Act to Strengthen and Expand the Organic Act for the
Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No.
6734, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as
Amended") was the next legislative act passed. This law provided further refinement in
the basic ARMM structure first defined in the original organic act, and reset the regular
elections for the ARMM regional officials to the second Monday of September 2001.
Congress passed the next law affecting ARMM RA No. 9140 1 on June 22, 2001.
This law reset the first regular elections originally scheduled under RA No. 9054, to
November 26, 2001. It likewise set the plebiscite to ratify RA No. 9054 to not later than
August 15, 2001.
RA No. 9054 was ratified in a plebiscite held on August 14, 2001. The province of Basilan
and Marawi City voted to join ARMM on the same date.
RA No. 9333 2 was subsequently passed by Congress to reset the ARMM regional
elections to the 2nd Monday of August 2005, and on the same date every 3 years
134
thereafter. Unlike RA No. 6734 and RA No. 9054, RA No. 9333 was not ratified in a
plebiscite.
Pursuant to RA No. 9333, the next ARMM regional elections should have been held on
August 8, 2011. COMELEC had begun preparations for these elections and had accepted
certificates of candidacies for the various regional offices to be elected. But on June 30,
2011, RA No. 10153 was enacted, resetting the ARMM elections to May 2013, to coincide
with the regular national and local elections of the country.
RA No. 10153 originated in the House of Representatives as House Bill (HB) No. 4146,
seeking the postponement of the ARMM elections scheduled on August 8, 2011. On
March 22, 2011, the House of Representatives passed HB No. 4146, with one hundred
ninety one (191) Members voting in its favor.
After the Senate received HB No. 4146, it adopted its own version, Senate Bill No. 2756
(SB No. 2756), on June 6, 2011. Thirteen (13) Senators voted favorably for its passage.
On June 7, 2011, the House of Representative concurred with the Senate amendments,
and on June 30, 2011, the President signed RA No. 10153 into law.
As mentioned, the early challenge to RA No. 10153 came through a petition filed with this
Court G.R. No. 196271 3 assailing the constitutionality of both HB No. 4146 and SB
No. 2756, and challenging the validity of RA No. 9333 as well for non-compliance with the
constitutional plebiscite requirement. Thereafter, petitioner Basari Mapupuno in G.R. No.
196305 filed another petition 4 also assailing the validity of RA No. 9333.
With the enactment into law of RA No. 10153, the COMELEC stopped its preparations
for the ARMM elections. The law gave rise as well to the filing of the following petitions
against its constitutionality:
a) Petition for Certiorari and Prohibition 5 filed by Rep. Edcel Lagman as a member of the
House of Representatives against Paquito Ochoa, Jr. (in his capacity as the Executive
Secretary) and the COMELEC, docketed as G.R. No. 197221;
b) Petition for Mandamus and Prohibition 6 filed by Atty. Romulo Macalintal as a taxpayer
against the COMELEC, docketed as G.R. No. 197282;
c) Petition for Certiorari and Mandamus, Injunction and Preliminary Injunction 7 filed by
Louis "Barok" Biraogo against the COMELEC and Executive Secretary Paquito N. Ochoa,
Jr., docketed as G.R. No. 197392; and CHIaTc
d) Petition for Certiorari and Mandamus 8 filed by Jacinto Paras as a member of the
House of Representatives against Executive Secretary Paquito Ochoa, Jr. and the
COMELEC, docketed as G.R. No. 197454.
Petitioners Alamarim Centi Tillah and Datu Casan Conding Cana as registered voters
from the ARMM, with the Partido Demokratiko Pilipino Lakas ng Bayan (a political party
with candidates in the ARMM regional elections scheduled for August 8, 2011), also filed
a Petition for Prohibition and Mandamus 9 against the COMELEC, docketed as G.R. No.
197280, to assail the constitutionality of RA No. 9140, RA No. 9333 and RA No. 10153.
Subsequently, Anak Mindanao Party-List, Minority Rights Forum Philippines, Inc. and
Bangsamoro Solidarity Movement filed their own Motion for Leave to Admit their Motion
for Intervention and Comment-in-Intervention dated July 18, 2011. On July 26, 2011, the
Court granted the motion. In the same Resolution, the Court ordered the consolidation of
all the petitions relating to the constitutionality of HB No. 4146, SB No. 2756, RA No.
9333, and RA No. 10153.
135
Oral arguments were held on August 9, 2011 and August 16, 2011. Thereafter, the parties
were instructed to submit their respective memoranda within twenty (20) days.
On September 13, 2011, the Court issued a temporary restraining order enjoining the
implementation of RA No. 10153 and ordering the incumbent elective officials of ARMM
to continue to perform their functions should these cases not be decided by the end of
their term on September 30, 2011.
The Arguments
The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153 assert that these
laws amend RA No. 9054 and thus, have to comply with the supermajority vote and
plebiscite requirements prescribed under Sections 1 and 3, Article XVII of RA No. 9094
in order to become effective.
The petitions assailing RA No. 10153 further maintain that it is unconstitutional for its
failure to comply with the three-reading requirement of Section 26 (2), Article VI of the
Constitution. Also cited as grounds are the alleged violations of the right of suffrage of the
people of ARMM, as well as the failure to adhere to the "elective and representative"
character of the executive and legislative departments of the ARMM. Lastly, the
petitioners challenged the grant to the President of the power to appoint OICs to
undertake the functions of the elective ARMM officials until the officials elected under the
May 2013 regular elections shall have assumed office. Corrolarily, they also argue that
the power of appointment also gave the President the power of control over the ARMM,
in complete violation of Section 16, Article X of the Constitution.
The Issues
From the parties' submissions, the following issues were recognized and argued by the
parties in the oral arguments of August 9 and 16, 2011:
I. Whether the 1987 Constitution mandates the synchronization of elections
II. Whether the passage of RA No. 10153 violates Section 26 (2), Article VI of the 1987
Constitution
III. Whether the passage of RA No. 10153 requires a supermajority vote and plebiscite
A. Does the postponement of the ARMM regular elections constitute an amendment to
Section 7, Article XVIII of RA No. 9054?
B. Does the requirement of a supermajority vote for amendments or revisions to RA No.
9054 violate Section 1 and Section 16 (2), Article VI of the 1987 Constitution and the
corollary doctrine on irrepealable laws? DSHcTC
C. Does the requirement of a plebiscite apply only in the creation of autonomous regions
under paragraph 2, Section 18, Article X of the 1987 Constitution?
IV. Whether RA No. 10153 violates the autonomy granted to the ARMM
V. Whether the grant of the power to appoint OICs violates:
A. Section 15, Article X of the 1987 Constitution
B. Section 16, Article X of the 1987 Constitution
C. Section 18, Article X of the 1987 Constitution
VI. Whether the proposal to hold special elections is constitutional and legal.
136
We shall discuss these issues in the order they are presented above.
OUR RULING
We resolve to DISMISS the petitions and thereby UPHOLD the constitutionality of RA No.
10153 in toto.
I. Synchronization as a recognized constitutional mandate
The respondent Office of the Solicitor General (OSG) argues that the Constitution
mandates synchronization, and in support of this position, cites Sections 1, 2 and 5, Article
XVIII (Transitory Provisions) of the 1987 Constitution, which provides:
Section 1. The first elections of Members of the Congress under this Constitution shall be
held on the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the President, which
may be simultaneous with the election of the Members of the Congress. It shall include
the election of all Members of the city or municipal councils in the Metropolitan Manila
area.
Section 2. The Senators, Members of the House of Representatives and the local officials
first elected under this Constitution shall serve until noon of June 30, 1992.
Of the Senators elected in the election in 1992, the first twelve obtaining the highest
number of votes shall serve for six year and the remaining twelve for three years.
xxx xxx xxx
Section 5. The six-year term of the incumbent President and Vice President elected in the
February 7, 1986 election is, for purposes of synchronization of elections, hereby
extended to noon of June 30, 1992.
The first regular elections for President and Vice-President under this Constitution shall
be held on the second Monday of May, 1992.
We agree with this position.
While the Constitution does not expressly state that Congress has to synchronize national
and local elections, the clear intent towards this objective can be gleaned from the
Transitory Provisions (Article XVIII) of the Constitution, 10 which show the extent to which
the Constitutional Commission, by deliberately making adjustments to the terms of the
incumbent officials, sought to attain synchronization of elections. 11
The objective behind setting a common termination date for all elective officials, done
among others through the shortening the terms of the twelve winning senators with the
least number of votes, is to synchronize the holding of all future elections whether
national or local to once every three years. 12 This intention finds full support in the
discussions during the Constitutional Commission deliberations. 13
These Constitutional Commission exchanges, read with the provisions of the Transitory
Provisions of the Constitution, all serve as patent indicators of the constitutional mandate
to hold synchronized national and local elections, starting the second Monday of May,
1992 and for all the following elections.
This Court was not left behind in recognizing the synchronization of the national and local
elections as a constitutional mandate. In Osmea v. Commission on Elections, 14 we
explained: cIECaS
137
It is clear from the aforequoted provisions of the 1987 Constitution that the terms of office
of Senators, Members of the House of Representatives, the local officials, the President
and the Vice-President have been synchronized to end on the same hour, date and year
noon of June 30, 1992.
It is likewise evident from the wording of the above-mentioned Sections that the term of
synchronization is used synonymously as the phrase holding simultaneously since this is
the precise intent in terminating their Office Tenure on the same day or occasion. This
common termination date will synchronize future elections to once every three years
(Bernas, the Constitution of the Republic of the Philippines, Vol. II, p. 605).
That the election for Senators, Members of the House of Representatives and the local
officials (under Sec. 2, Art. XVIII) will have to be synchronized with the election for
President and Vice President (under Sec. 5, Art. XVIII) is likewise evident from the . . .
records of the proceedings in the Constitutional Commission. [Emphasis supplied.]
Although called regional elections, the ARMM elections should be included among the
elections to be synchronized as it is a "local" election based on the wording and structure
of the Constitution.
A basic rule in constitutional construction is that the words used should be understood in
the sense that they have in common use and given their ordinary meaning, except when
technical terms are employed, in which case the significance thus attached to them
prevails. 15 As this Court explained in People v. Derilo, 16 "[a]s the Constitution is not
primarily a lawyer's document, its language should be understood in the sense that it may
have in common. Its words should be given their ordinary meaning except where technical
terms are employed."
Understood in its ordinary sense, the word "local" refers to something that primarily serves
the needs of a particular limited district, often a community or minor political subdivision.
17 Regional elections in the ARMM for the positions of governor, vice-governor and
regional assembly representatives obviously fall within this classification, since they
pertain to the elected officials who will serve within the limited region of ARMM.
From the perspective of the Constitution, autonomous regions are considered one of the
forms of local governments, as evident from Article X of the Constitution entitled "Local
Government." Autonomous regions are established and discussed under Sections 15 to
21 of this Article the article wholly devoted to Local Government. That an autonomous
region is considered a form of local government is also reflected in Section 1, Article X of
the Constitution, which provides:
Section 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous regions
in Muslim Mindanao, and the Cordilleras as hereinafter provided.
Thus, we find the contention that the synchronization mandated by the Constitution
does not include the regional elections of the ARMM unmeritorious. We shall refer to
synchronization in the course of our discussions below, as this concept permeates the
consideration of the various issues posed in this case and must be recalled time and
again for its complete resolution.
II. The President's Certification on the Urgency of RA No. 10153
The petitioners in G.R. No. 197280 also challenge the validity of RA No. 10153 for its
alleged failure to comply with Section 26 (2), Article VI of the Constitution 18 which
provides that before bills passed by either the House or the Senate can become laws,
138
they must pass through three readings on separate days. The exception is when the
President certifies to the necessity of the bill's immediate enactment.
The Court, in Tolentino v. Secretary of Finance, 19 explained the effect of the President's
certification of necessity in the following manner:
The presidential certification dispensed with the requirement not only of printing but also
that of reading the bill on separate days. The phrase "except when the President certifies
to the necessity of its immediate enactment, etc." in Art. VI, Section 26[2] qualifies the
two stated conditions before a bill can become a law: [i] the bill has passed three readings
on separate days and [ii] it has been printed in its final form and distributed three days
before it is finally approved. CADacT
xxx xxx xxx
That upon the certification of a bill by the President, the requirement of three readings on
separate days and of printing and distribution can be dispensed with is supported by the
weight of legislative practice. For example, the bill defining the certiorari jurisdiction of this
Court which, in consolidation with the Senate version, became Republic Act No. 5440,
was passed on second and third readings in the House of Representatives on the same
day [May 14, 1968] after the bill had been certified by the President as urgent.
In the present case, the records show that the President wrote to the Speaker of the
House of Representatives to certify the necessity of the immediate enactment of a law
synchronizing the ARMM elections with the national and local elections. 20 Following our
Tolentino ruling, the President's certification exempted both the House and the Senate
from having to comply with the three separate readings requirement.
On the follow-up contention that no necessity existed for the immediate enactment of
these bills since there was no public calamity or emergency that had to be met, again we
hark back to our ruling in Tolentino:
The sufficiency of the factual basis of the suspension of the writ of habeas corpus or
declaration of martial law Art. VII, Section 18, or the existence of a national emergency
justifying the delegation of extraordinary powers to the President under Art. VI, Section
23(2) is subject to judicial review because basic rights of individuals may be of hazard.
But the factual basis of presidential certification of bills, which involves doing away with
procedural requirements designed to insure that bills are duly considered by members of
Congress, certainly should elicit a different standard of review. [Emphasis supplied.]
The House of Representatives and the Senate in the exercise of their legislative
discretion gave full recognition to the President's certification and promptly enacted
RA No. 10153. Under the circumstances, nothing short of grave abuse of discretion on
the part of the two houses of Congress can justify our intrusion under our power of judicial
review. 21
The petitioners, however, failed to provide us with any cause or justification for this course
of action. Hence, while the judicial department and this Court are not bound by the
acceptance of the President's certification by both the House of Representatives and the
Senate, prudent exercise of our powers and respect due our co-equal branches of
government in matters committed to them by the Constitution, caution a stay of the judicial
hand. 22
In any case, despite the President's certification, the two-fold purpose that underlies the
requirement for three readings on separate days of every bill must always be observed
to enable our legislators and other parties interested in pending bills to intelligently
respond to them. Specifically, the purpose with respect to Members of Congress is: (1) to
139
inform the legislators of the matters they shall vote on and (2) to give them notice that a
measure is in progress through the enactment process. 23
We find, based on the records of the deliberations on the law, that both advocates and
the opponents of the proposed measure had sufficient opportunities to present their
views. In this light, no reason exists to nullify RA No. 10153 on the cited ground.
III. A. RA No. 9333 and RA No. 10153 are not amendments to RA No. 9054
The effectivity of RA No. 9333 and RA No. 10153 has also been challenged because they
did not comply with Sections 1 and 3, Article XVII of RA No. 9054 in amending this law.
These provisions require:
Section 1. Consistent with the provisions of the Constitution, this Organic Act may be
reamended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3)
of the Members of the House of Representatives and of the Senate voting separately.
Section 3. Any amendment to or revision of this Organic Act shall become effective only
when approved by a majority of the vote cast in a plebiscite called for the purpose, which
shall be held not earlier than sixty (60) days or later than ninety (90) days after the
approval of such amendment or revision. ISCaTE
We find no merit in this contention.
In the first place, neither RA No. 9333 nor RA No. 10153 amends RA No. 9054. As an
examination of these laws will show, RA No. 9054 only provides for the schedule of the
first ARMM elections and does not fix the date of the regular elections. A need therefore
existed for the Congress to fix the date of the subsequent ARMM regular elections, which
it did by enacting RA No. 9333 and thereafter, RA No. 10153. Obviously, these
subsequent laws RA No. 9333 and RA No. 10153 cannot be considered
amendments to RA No. 9054 as they did not change or revise any provision in the latter
law; they merely filled in a gap in RA No. 9054 or supplemented the law by providing the
date of the subsequent regular elections.
This view that Congress thought it best to leave the determination of the date of
succeeding ARMM elections to legislative discretion finds support in ARMM's recent
history.
To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections.
The First Organic Act RA No. 6734 not only did not fix the date of the subsequent
elections; it did not even fix the specific date of the first ARMM elections, 24 leaving the
date to be fixed in another legislative enactment. Consequently, RA No. 7647, 25 RA No.
8176, 26 RA No. 8746, 27 RA No. 8753, 28 and RA No. 9012 29 were all enacted by
Congress to fix the dates of the ARMM elections. Since these laws did not change or
modify any part or provision of RA No. 6734, they were not amendments to this latter law.
Consequently, there was no need to submit them to any plebiscite for ratification.
The Second Organic Act RA No. 9054 which lapsed into law on March 31, 2001,
provided that the first elections would be held on the second Monday of September 2001.
Thereafter, Congress passed RA No. 9140 30 to reset the date of the ARMM elections.
Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the
Second Organic Act (RA No. 9054), the new date of the ARMM regional elections fixed
in RA No. 9140 was not among the provisions ratified in the plebiscite held to approve RA
No. 9054. Thereafter, Congress passed RA No. 9333, 31 which further reset the date of
the ARMM regional elections. Again, this law was not ratified through a plebiscite.
From these legislative actions, we see the clear intention of Congress to treat the laws
which fix the date of the subsequent ARMM elections as separate and distinct from the
140
Organic Acts. Congress only acted consistently with this intent when it passed RA No.
10153 without requiring compliance with the amendment prerequisites embodied in
Section 1 and Section 3, Article XVII of RA No. 9054.
III. B. Supermajority voting requirement unconstitutional for giving RA No. 9054 the
character of an irrepealable law
Even assuming that RA No. 9333 and RA No. 10153 did in fact amend RA No. 9054, the
supermajority (2/3) voting requirement required under Section 1, Article XVII of RA No.
9054 32 has to be struck down for giving RA No. 9054 the character of an irrepealable
law by requiring more than what the Constitution demands.
Section 16 (2), Article VI of the Constitution provides that a "majority of each House shall
constitute a quorum to do business." In other words, as long as majority of the members
of the House of Representatives or the Senate are present, these bodies have the quorum
needed to conduct business and hold session. Within a quorum, a vote of majority is
generally sufficient to enact laws or approve acts.
In contrast, Section 1, Article XVII of RA No. 9054 requires a vote of no less than twothirds (2/3) of the Members of the House of Representatives and of the Senate, voting
separately, in order to effectively amend RA No. 9054. Clearly, this 2/3 voting requirement
is higher than what the Constitution requires for the passage of bills, and served to restrain
the plenary powers of Congress to amend, revise or repeal the laws it had passed. The
Court's pronouncement in City of Davao v. GSIS 33 on this subject best explains the basis
and reason for the unconstitutionality:
Moreover, it would be noxious anathema to democratic principles for a legislative body to
have the ability to bind the actions of future legislative body, considering that both
assemblies are regarded with equal footing, exercising as they do the same plenary
powers. Perpetual infallibility is not one of the attributes desired in a legislative body, and
a legislature which attempts to forestall future amendments or repeals of its enactments
labors under delusions of omniscience. CIHAED
xxx xxx xxx
A state legislature has a plenary law-making power over all subjects, whether pertaining
to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal
the old, unless prohibited expressly or by implication by the federal constitution or limited
or restrained by its own. It cannot bind itself or its successors by enacting irrepealable
laws except when so restrained. Every legislative body may modify or abolish the acts
passed by itself or its predecessors. This power of repeal may be exercised at the same
session at which the original act was passed; and even while a bill is in its progress and
before it becomes a law. This legislature cannot bind a future legislature to a particular
mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the
effect of subsequent legislation upon existing statutes. 34 (Emphasis ours.)
Thus, while a supermajority is not a total ban against a repeal, it is a limitation in excess
of what the Constitution requires on the passage of bills and is constitutionally obnoxious
because it significantly constricts the future legislators' room for action and flexibility.
III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged the plebiscite
requirement found in Section 18, Article X of the Constitution
The requirements of RA No. 9054 not only required an unwarranted supermajority, but
enlarged as well the plebiscite requirement, as embodied in its Section 3, Article XVII of
that Act. As we did on the supermajority requirement, we find the enlargement of the
plebiscite requirement required under Section 18, Article X of the Constitution to be
excessive to point of absurdity and, hence, a violation of the Constitution.
141
Section 18, Article X of the Constitution states that the plebiscite is required only for the
creation of autonomous regions and for determining which provinces, cities and
geographic areas will be included in the autonomous regions. While the settled rule is
that amendments to the Organic Act have to comply with the plebiscite requirement in
order to become effective, 35 questions on the extent of the matters requiring ratification
may unavoidably arise because of the seemingly general terms of the Constitution and
the obvious absurdity that would result if a plebiscite were to be required for every
statutory amendment.
Section 18, Article X of the Constitution plainly states that "The creation of the
autonomous region shall be effective when approved by the majority of the votes case by
the constituent units in a plebiscite called for the purpose." With these wordings as
standard, we interpret the requirement to mean that only amendments to, or revisions of,
the Organic Act constitutionally-essential to the creation of autonomous regions i.e.,
those aspects specifically mentioned in the Constitution which Congress must provide for
in the Organic Act require ratification through a plebiscite. These amendments to the
Organic Act are those that relate to: (a) the basic structure of the regional government;
(b) the region's judicial system, i.e., the special courts with personal, family, and property
law jurisdiction; and, (c) the grant and extent of the legislative powers constitutionally
conceded to the regional government under Section 20, Article X of the Constitution. 36
The date of the ARMM elections does not fall under any of the matters that the
Constitution specifically mandated Congress to provide for in the Organic Act. Therefore,
even assuming that the supermajority votes and the plebiscite requirements are valid,
any change in the date of elections cannot be construed as a substantial amendment of
the Organic Act that would require compliance with these requirements.
IV. The synchronization issue
As we discussed above, synchronization of national and local elections is a constitutional
mandate that Congress must provide for and this synchronization must include the ARMM
elections. On this point, an existing law in fact already exists RA No. 7166 as the
forerunner of the current RA No. 10153. RA No. 7166 already provides for the
synchronization of local elections with the national and congressional elections. Thus,
what RA No. 10153 provides is an old matter for local governments (with the exception
of barangay and Sanggunian Kabataan elections where the terms are not constitutionally
provided) and is technically a reiteration of what is already reflected in the law, given that
regional elections are in reality local elections by express constitutional recognition. 37
To achieve synchronization, Congress necessarily has to reconcile the schedule of the
ARMM's regular elections (which should have been held in August 2011 based on RA
No. 9333) with the fixed schedule of the national and local elections (fixed by RA No.
7166 to be held in May 2013).
During the oral arguments, the Court identified the three options open to Congress in
order to resolve this problem. These options are: (1) to allow the elective officials in the
ARMM to remain in office in a hold over capacity, pursuant to Section 7 (1), Article VII of
RA No. 9054, until those elected in the synchronized elections assume office; 38 (2) to
hold special elections in the ARMM, with the terms of those elected to expire when those
elected in the synchronized elections assume office; or (3) to authorize the President to
appoint OICs, pursuant to Section 3 of RA No. 10153, also until those elected in the
synchronized elections assume office.
As will be abundantly clear in the discussion below, Congress, in choosing to grant the
President the power to appoint OICs, chose the correct option and passed RA No. 10153
as a completely valid law.
V. The Constitutionality of RA No. 10153
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A. Basic Underlying Premises

To fully appreciate the available options, certain underlying material premises must be
fully understood. The first is the extent of the powers of Congress to legislate; the second
is the constitutional mandate for the synchronization of elections; and the third is on the
concept of autonomy as recognized and established under the 1987 Constitution.
The grant of legislative power to Congress is broad, general and comprehensive. 39 The
legislative body possesses plenary power for all purposes of civil government. 40 Any
power, deemed to be legislative by usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it elsewhere. 41 Except as limited by the
Constitution, either expressly or impliedly, legislative power embraces all subjects and
extends to all matters of general concern or common interest. 42 EcHIAC
The constitutional limitations on legislative power are either express or implied. The
express limitations are generally provided in some provisions of the Declaration of
Principles and State Policies (Article 2) and in the provisions Bill of Rights (Article 3).
Other constitutional provisions (such as the initiative and referendum clause of Article 6,
Sections 1 and 32, and the autonomy provisions of Article X) provide their own express
limitations. The implied limitations are found "in the evident purpose which was in view
and the circumstances and historical events which led to the enactment of the particular
provision as a part of organic law." 43
The constitutional provisions on autonomy specifically, Sections 15 to 21 of Article X
of the Constitution constitute express limitations on legislative power as they define
autonomy, its requirements and its parameters, thus limiting what is otherwise the
unlimited power of Congress to legislate on the governance of the autonomous region.
Of particular relevance to the issues of the present case are the limitations posed by the
prescribed basic structure of government i.e., that the government must have an
executive department and a legislative assembly, both of which must be elective and
representative of the constituent political units; national government, too, must not
encroach on the legislative powers granted under Section 20, Article X. Conversely and
as expressly reflected in Section 17, Article X, "all powers and functions not granted by
this Constitution or by law to the autonomous regions shall be vested in the National
Government."
The totality of Sections 15 to 21 of Article X should likewise serve as a standard that
Congress must observe in dealing with legislation touching on the affairs of the
autonomous regions. The terms of these sections leave no doubt on what the Constitution
intends the idea of self-rule or self-government, in particular, the power to legislate on
a wide array of social, economic and administrative matters. But equally clear under these
provisions are the permeating principles of national sovereignty and the territorial integrity
of the Republic, as expressed in the above-quoted Section 17 and in Section 15. 44 In
other words, the Constitution and the supporting jurisprudence, as they now stand, reject
the notion of imperium et imperio 45 in the relationship between the national and the
regional governments.
In relation with synchronization, both autonomy and the synchronization of national and
local elections are recognized and established constitutional mandates, with one being
as compelling as the other. If their compelling force differs at all, the difference is in their
coverage; synchronization operates on and affects the whole country, while regional
autonomy as the term suggests directly carries a narrower regional effect although
its national effect cannot be discounted.
These underlying basic concepts characterize the powers and limitations of Congress
when it acted on RA No. 10153. To succinctly describe the legal situation that faced
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Congress then, its decision to synchronize the regional elections with the national,
congressional and all other local elections (save for barangay and sangguniang kabataan
elections) left it with the problem of how to provide the ARMM with governance in the
intervening period between the expiration of the term of those elected in August 2008 and
the assumption to office twenty-one (21) months away of those who will win in the
synchronized elections on May 13, 2013.
The problem, in other words, was for interim measures for this period, consistent with the
terms of the Constitution and its established supporting jurisprudence, and with the
respect due to the concept of autonomy. Interim measures, to be sure, is not a strange
phenomenon in the Philippine legal landscape. The Constitution's Transitory Provisions
themselves collectively provide measures for transition from the old constitution to the
new 46 and for the introduction of new concepts. 47 As previously mentioned, the
adjustment of elective terms and of elections towards the goal of synchronization first
transpired under the Transitory Provisions. The adjustments, however, failed to look far
enough or deeply enough, particularly into the problems that synchronizing regional
autonomous elections would entail; thus, the present problem is with us today.
The creation of local government units also represents instances when interim measures
are required. In the creation of Quezon del Sur 48 and Dinagat Islands, 49 the creating
statutes authorized the President to appoint an interim governor, vice-governor and
members of the sangguniang panlalawigan although these positions are essentially
elective in character; the appointive officials were to serve until a new set of provincial
officials shall have been elected and qualified. 50 A similar authority to appoint is provided
in the transition of a local government from a sub-province to a province. 51 ADCEcI
In all these, the need for interim measures is dictated by necessity; out-of-the-way
arrangements and approaches were adopted or used in order to adjust to the goal or
objective in sight in a manner that does not do violence to the Constitution and to
reasonably accepted norms. Under these limitations, the choice of measures was a
question of wisdom left to congressional discretion.
To return to the underlying basic concepts, these concepts shall serve as the guideposts
and markers in our discussion of the options available to Congress to address the
problems brought about by the synchronization of the ARMM elections, properly
understood as interim measures that Congress had to provide. The proper understanding
of the options as interim measures assume prime materiality as it is under these terms
that the passage of RA No. 10153 should be measured, i.e., given the constitutional
objective of synchronization that cannot legally be faulted, did Congress gravely abuse
its discretion or violate the Constitution when it addressed through RA No. 10153 the
concomitant problems that the adjustment of elections necessarily brought with it?
B. Holdover Option is Unconstitutional
We rule out the first option holdover for those who were elected in executive and
legislative positions in the ARMM during the 2008-2011 term as an option that
Congress could have chosen because a holdover violates Section 8, Article X of the
Constitution. This provision states:
Section 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for more
than three consecutive terms. [emphases ours]
Since elective ARMM officials are local officials, they are covered and bound by the threeyear term limit prescribed by the Constitution; they cannot extend their term through a
holdover. As this Court put in Osmea v. COMELEC: 52 aEACcS
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It is not competent for the legislature to extend the term of officers by providing that they
shall hold over until their successors are elected and qualified where the constitution has
in effect or by clear implication prescribed the term and when the Constitution fixes the
day on which the official term shall begin, there is no legislative authority to continue the
office beyond that period, even though the successors fail to qualify within the time.
In American Jurisprudence it has been stated as follows:
"It has been broadly stated that the legislature cannot, by an act postponing the election
to fill an office the term of which is limited by the Constitution, extend the term of the
incumbent beyond the period as limited by the Constitution." [Emphasis ours.]
Independently of the Osmea ruling, the primacy of the Constitution as the supreme law
of the land dictates that where the Constitution has itself made a determination or given
its mandate, then the matters so determined or mandated should be respected until the
Constitution itself is changed by amendment or repeal through the applicable
constitutional process. A necessary corollary is that none of the three branches of
government can deviate from the constitutional mandate except only as the Constitution
itself may allow. 53 If at all, Congress may only pass legislation filing in details to fully
operationalize the constitutional command or to implement it by legislation if it is non-selfexecuting; this Court, on the other hand, may only interpret the mandate if an
interpretation is appropriate and called for. 54
In the case of the terms of local officials, their term has been fixed clearly and
unequivocally, allowing no room for any implementing legislation with respect to the fixed
term itself and no vagueness that would allow an interpretation from this Court. Thus, the
term of three years for local officials should stay at three (3) years as fixed by the
Constitution and cannot be extended by holdover by Congress. ADSTCa
If it will be claimed that the holdover period is effectively another term mandated by
Congress, the net result is for Congress to create a new term and to appoint the occupant
for the new term. This view like the extension of the elective term is constitutionally
infirm because Congress cannot do indirectly what it cannot do directly, i.e., to act in a
way that would effectively extend the term of the incumbents. Indeed, if acts that cannot
be legally done directly can be done indirectly, then all laws would be illusory. 55
Congress cannot also create a new term and effectively appoint the occupant of the
position for the new term. This is effectively an act of appointment by Congress and an
unconstitutional intrusion into the constitutional appointment power of the President. 56
Hence, holdover whichever way it is viewed is a constitutionally infirm option that
Congress could not have undertaken.
Jurisprudence, of course, is not without examples of cases where the question of holdover
was brought before, and given the imprimatur of approval by, this Court. The present case
though differs significantly from past cases with contrary rulings, particularly from
Sambarani v. COMELEC, 57 Adap v. Comelec, 58 and Montesclaros v. Comelec, 59
where the Court ruled that the elective officials could hold on to their positions in a hold
over capacity.
All these past cases refer to elective barangay or sangguniang kabataan officials whose
terms of office are not explicitly provided for in the Constitution; the present case, on the
other hand, refers to local elective officials the ARMM Governor, the ARMM ViceGovernor, and the members of the Regional Legislative Assembly whose terms fall
within the three-year term limit set by Section 8, Article X of the Constitution. Because of
their constitutionally limited term, Congress cannot legislate an extension beyond the term
for which they were originally elected.
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Even assuming that holdover is constitutionally permissible, and there had been statutory
basis for it (namely Section 7, Article VII of RA No. 9054) in the past, 60 we have to
remember that the rule of holdover can only apply as an available option where no
express or implied legislative intent to the contrary exists; it cannot apply where such
contrary intent is evident. 61
Congress, in passing RA No. 10153, made it explicitly clear that it had the intention of
suppressing the holdover rule that prevailed under RA No. 9054 by completely removing
this provision. The deletion is a policy decision that is wholly within the discretion of
Congress to make in the exercise of its plenary legislative powers; this Court cannot pass
upon questions of wisdom, justice or expediency of legislation, 62 except where an
attendant unconstitutionality or grave abuse of discretion results.
C. The COMELEC has no authority to order special elections
Another option proposed by the petitioner in G.R. No. 197282 is for this Court to compel
COMELEC to immediately conduct special elections pursuant to Section 5 and 6 of Batas
Pambansa Bilang (BP) 881.
The power to fix the date of elections is essentially legislative in nature, as evident from,
and exemplified by, the following provisions of the Constitution:
Section 8, Article VI, applicable to the legislature, provides:
Section 8. Unless otherwise provided by law, the regular election of the Senators and the
Members of the House of Representatives shall be held on the second Monday of May.
[Emphasis ours]
Section 4 (3), Article VII, with the same tenor but applicable solely to the President and
Vice-President, states:
xxx xxx xxx
Section 4. . . . Unless otherwise provided by law, the regular election for President and
Vice-President shall be held on the second Monday of May. [Emphasis ours]
while Section 3, Article X, on local government, provides:
Section 3. The Congress shall enact a local government code which shall provide for . . .
the qualifications, election, appointment and removal, term, salaries, powers and
functions and duties of local officials[.] [Emphases ours]
These provisions support the conclusion that no elections may be held on any other date
for the positions of President, Vice President, Members of Congress and local officials,
except when so provided by another Act of Congress, or upon orders of a body or officer
to whom Congress may have delegated either the power or the authority to ascertain or
fill in the details in the execution of that power. 63 AECDHS
Notably, Congress has acted on the ARMM elections by postponing the scheduled
August 2011 elections and setting another date May 13, 2011 for regional elections
synchronized with the presidential, congressional and other local elections. By so doing,
Congress itself has made a policy decision in the exercise of its legislative wisdom that it
shall not call special elections as an adjustment measure in synchronizing the ARMM
elections with the other elections.
After Congress has so acted, neither the Executive nor the Judiciary can act to the
contrary by ordering special elections instead at the call of the COMELEC. This Court,
particularly, cannot make this call without thereby supplanting the legislative decision and
effectively legislating. To be sure, the Court is not without the power to declare an act of
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Congress null and void for being unconstitutional or for having been exercised in grave
abuse of discretion. 64 But our power rests on very narrow ground and is merely to annul
a contravening act of Congress; it is not to supplant the decision of Congress nor to
mandate what Congress itself should have done in the exercise of its legislative powers.
Thus, contrary to what the petition in G.R. No. 197282 urges, we cannot compel
COMELEC to call for special elections.
Furthermore, we have to bear in mind that the constitutional power of the COMELEC, in
contrast with the power of Congress to call for, and to set the date of, elections, is limited
to enforcing and administering all laws and regulations relative to the conduct of an
election. 65 Statutorily, COMELEC has no power to call for the holding of special elections
unless pursuant to a specific statutory grant. True, Congress did grant, via Sections 5 and
6 of BP 881, COMELEC with the power to postpone elections to another date. However,
this power is limited to, and can only be exercised within, the specific terms and
circumstances provided for in the law. We quote:
Section 5. Postponement of election. When for any serious cause such as violence,
terrorism, loss or destruction of election paraphernalia or records, force majeure, and
other analogous causes of such a nature that the holding of a free, orderly and honest
election should become impossible in any political subdivision, the Commission, motu
proprio or upon a verified petition by any interested party, and after due notice and
hearing, whereby all interested parties are afforded equal opportunity to be heard, shall
postpone the election therein to a date which should be reasonably close to the date of
the election not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause for such postponement or suspension of the
election or failure to elect.
Section 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud,
or other analogous causes the election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for the closing of the voting,
or after the voting and during the preparation and the transmission of the election returns
or in the custody or canvass thereof, such election results in a failure to elect, and in any
of such cases the failure or suspension of election would affect the result of the election,
the Commission shall, on the basis of a verified petition by any interested party and after
due notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date
of the election not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause of such postponement or suspension of the
election or failure to elect. [Emphasis ours]
A close reading of Section 5 of BP 881 reveals that it is meant to address instances where
elections have already been scheduled to take place but have to be postponed because
of (a) violence, (b) terrorism, (c) loss or destruction of election paraphernalia or records,
(d) force majeure, and (e) other analogous causes of such a nature that the holding of a
free, orderly and honest election should become impossible in any political subdivision.
Under the principle of ejusdem generis, the term "analogous causes" will be restricted to
those unforeseen or unexpected events that prevent the holding of the scheduled
elections. These "analogous causes" are further defined by the phrase "of such nature
that the holding of a free, orderly and honest election should become impossible."
Similarly, Section 6 of BP 881 applies only to those situations where elections have
already been scheduled but do not take place because of (a) force majeure, (b) violence,
(c) terrorism, (d) fraud, or (e) other analogous causes the election in any polling place has
not been held on the date fixed, or had been suspended before the hour fixed by law for
the closing of the voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass thereof, such election
results in a failure to elect. As in Section 5 of BP 881, Section 6 addresses instances
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where the elections do not occur or had to be suspended because of unexpected and
unforeseen circumstances. EcIDaA
In the present case, the postponement of the ARMM elections is by law i.e., by
congressional policy and is pursuant to the constitutional mandate of synchronization
of national and local elections. By no stretch of the imagination can these reasons be
given the same character as the circumstances contemplated by Section 5 or Section 6
of BP 881, which all pertain to extralegal causes that obstruct the holding of elections.
Courts, to be sure, cannot enlarge the scope of a statute under the guise of interpretation,
nor include situations not provided nor intended by the lawmakers. 66 Clearly, neither
Section 5 nor Section 6 of BP 881 can apply to the present case and this Court has
absolutely no legal basis to compel the COMELEC to hold special elections.
D. The Court has no power to shorten the terms of elective officials
Even assuming that it is legally permissible for the Court to compel the COMELEC to hold
special elections, no legal basis likewise exists to rule that the newly elected ARMM
officials shall hold office only until the ARMM officials elected in the synchronized
elections shall have assumed office.
In the first place, the Court is not empowered to adjust the terms of elective officials.
Based on the Constitution, the power to fix the term of office of elective officials, which
can be exercised only in the case of barangay officials, 67 is specifically given to
Congress. Even Congress itself may be denied such power, as shown when the
Constitution shortened the terms of twelve Senators obtaining the least votes, 68 and
extended the terms of the President and the Vice-President 69 in order to synchronize
elections; Congress was not granted this same power. The settled rule is that terms fixed
by the Constitution cannot be changed by mere statute. 70 More particularly, not even
Congress and certainly not this Court, has the authority to fix the terms of elective local
officials in the ARMM for less, or more, than the constitutionally mandated three years 71
as this tinkering would directly contravene Section 8, Article X of the Constitution as we
ruled in Osmea.
Thus, in the same way that the term of elective ARMM officials cannot be extended
through a holdover, the term cannot be shortened by putting an expiration date earlier
than the three (3) years that the Constitution itself commands. This is what will happen
a term of less than two years if a call for special elections shall prevail. In sum, while
synchronization is achieved, the result is at the cost of a violation of an express provision
of the Constitution.
Neither we nor Congress can opt to shorten the tenure of those officials to be elected in
the ARMM elections instead of acting on their term (where the "term" means the time
during which the officer may claim to hold office as of right and fixes the interval after
which the several incumbents shall succeed one another, while the "tenure" represents
the term during which the incumbent actually holds the office). 72 As with the fixing of the
elective term, neither Congress nor the Court has any legal basis to shorten the tenure of
elective ARMM officials. They would commit an unconstitutional act and gravely abuse
their discretion if they do so.
E. The President's Power to Appoint OICs
The above considerations leave only Congress' chosen interim measure RA No. 10153
and the appointment by the President of OICs to govern the ARMM during the presynchronization period pursuant to Sections 3, 4 and 5 of this law as the only measure
that Congress can make. This choice itself, however, should be examined for any
attendant constitutional infirmity.
148
At the outset, the power to appoint is essentially executive in nature, and the limitations
on or qualifications to the exercise of this power should be strictly construed; these
limitations or qualifications must be clearly stated in order to be recognized. 73 The
appointing power is embodied in Section 16, Article VII of the Constitution, which states:
Section 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards. [emphasis ours] aHIDAE
This provision classifies into four groups the officers that the President can appoint. These
are:
First, the heads of the executive departments; ambassadors; other public ministers and
consuls; officers of the Armed Forces of the Philippines, from the rank of colonel or naval
captain; and other officers whose appointments are vested in the President in this
Constitution;
Second, all other officers of the government whose appointments are not otherwise
provided for by law;
Third, those whom the President may be authorized by law to appoint; and
Fourth, officers lower in rank whose appointments the Congress may by law vest in the
President alone. 74
Since the President's authority to appoint OICs emanates from RA No. 10153, it falls
under the third group of officials that the President can appoint pursuant to Section 16,
Article VII of the Constitution. Thus, the assailed law facially rests on clear constitutional
basis.
If at all, the gravest challenge posed by the petitions to the authority to appoint OICs under
Section 3 of RA No. 10153 is the assertion that the Constitution requires that the ARMM
executive and legislative officials to be "elective and representative of the constituent
political units." This requirement indeed is an express limitation whose non-observance
in the assailed law leaves the appointment of OICs constitutionally defective.
After fully examining the issue, we hold that this alleged constitutional problem is more
apparent than real and becomes very real only if RA No. 10153 were to be mistakenly
read as a law that changes the elective and representative character of ARMM positions.
RA No. 10153, however, does not in any way amend what the organic law of the ARMM
(RA No. 9054) sets outs in terms of structure of governance. What RA No. 10153 in fact
only does is to "appoint officers-in-charge for the Office of the Regional Governor,
Regional Vice Governor and Members of the Regional Legislative Assembly who shall
perform the functions pertaining to the said offices until the officials duly elected in the
May 2013 elections shall have qualified and assumed office." This power is far different
from appointing elective ARMM officials for the abbreviated term ending on the
assumption to office of the officials elected in the May 2013 elections.
As we have already established in our discussion of the supermajority and plebiscite
requirements, the legal reality is that RA No. 10153 did not amend RA No. 9054. RA No.
10153, in fact, provides only for synchronization of elections and for the interim measures
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that must in the meanwhile prevail. And this is how RA No. 10153 should be read in
the manner it was written and based on its unambiguous facial terms. 75 Aside from its
order for synchronization, it is purely and simply an interim measure responding to the
adjustments that the synchronization requires.
Thus, the appropriate question to ask is whether the interim measure is an unreasonable
move for Congress to adopt, given the legal situation that the synchronization unavoidably
brought with it. In more concrete terms and based on the above considerations, given the
plain unconstitutionality of providing for a holdover and the unavailability of constitutional
possibilities for lengthening or shortening the term of the elected ARMM officials, is the
choice of the President's power to appoint for a fixed and specific period as an interim
measure, and as allowed under Section 16, Article VII of the Constitution an
unconstitutional or unreasonable choice for Congress to make? cEaCTS
Admittedly, the grant of the power to the President under other situations or where the
power of appointment would extend beyond the adjustment period for synchronization
would be to foster a government that is not "democratic and republican." For then, the
people's right to choose the leaders to govern them may be said to be systemically
withdrawn to the point of fostering an undemocratic regime. This is the grant that would
frontally breach the "elective and representative" governance requirement of Section 18,
Article X of the Constitution.
But this conclusion would not be true under the very limited circumstances contemplated
in RA No. 10153 where the period is fixed and, more importantly, the terms of governance
both under Section 18, Article X of the Constitution and RA No. 9054 will not
systemically be touched nor affected at all. To repeat what has previously been said, RA
No. 9054 will govern unchanged and continuously, with full effect in accordance with the
Constitution, save only for the interim and temporary measures that synchronization of
elections requires.
Viewed from another perspective, synchronization will temporarily disrupt the election
process in a local community, the ARMM, as well as the community's choice of leaders,
but this will take place under a situation of necessity and as an interim measure in the
manner that interim measures have been adopted and used in the creation of local
government units 76 and the adjustments of sub-provinces to the status of provinces. 77
These measures, too, are used in light of the wider national demand for the
synchronization of elections (considered vis--vis the regional interests involved). The
adoption of these measures, in other words, is no different from the exercise by Congress
of the inherent police power of the State, where one of the essential tests is the
reasonableness of the interim measure taken in light of the given circumstances.
Furthermore, the "representative" character of the chosen leaders need not necessarily
be affected by the appointment of OICs as this requirement is really a function of the
appointment process; only the "elective" aspect shall be supplanted by the appointment
of OICs. In this regard, RA No. 10153 significantly seeks to address concerns arising from
the appointments by providing, under Sections 3, 4 and 5 of the assailed law, concrete
terms in the Appointment of OIC, the Manner and Procedure of Appointing OICs, and
their Qualifications.
Based on these considerations, we hold that RA No. 10153 viewed in its proper context
is a law that is not violative of the Constitution (specifically, its autonomy provisions),
and one that is reasonable as well under the circumstances.
VI. Other Constitutional Concerns
Outside of the above concerns, it has been argued during the oral arguments that
upholding the constitutionality of RA No. 10153 would set a dangerous precedent of giving
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the President the power to cancel elections anywhere in the country, thus allowing him to
replace elective officials with OICs.
This claim apparently misunderstands that an across-the-board cancellation of elections
is a matter for Congress, not for the President, to address. It is a power that falls within
the powers of Congress in the exercise of its legislative powers. Even Congress, as
discussed above, is limited in what it can legislatively undertake with respect to elections.
If RA No. 10153 cancelled the regular August 2011 elections, it was for a very specific
and limited purpose the synchronization of elections. It was a temporary means to a
lasting end the synchronization of elections. Thus, RA No. 10153 and the support that
the Court gives this legislation are likewise clear and specific, and cannot be transferred
or applied to any other cause for the cancellation of elections. Any other localized
cancellation of elections and call for special elections can occur only in accordance with
the power already delegated by Congress to the COMELEC, as above discussed.
Given that the incumbent ARMM elective officials cannot continue to act in a holdover
capacity upon the expiration of their terms, and this Court cannot compel the COMELEC
to conduct special elections, the Court now has to deal with the dilemma of a vacuum in
governance in the ARMM.
To emphasize the dire situation a vacuum brings, it should not be forgotten that a period
of 21 months or close to 2 years intervenes from the time that the incumbent ARMM
elective officials' terms expired and the time the new ARMM elective officials begin their
terms in 2013. As the lessons of our Mindanao history past and current teach us,
many developments, some of them critical and adverse, can transpire in the country's
Muslim areas in this span of time in the way they transpired in the past. 78 Thus, it would
be reckless to assume that the presence of an acting ARMM Governor, an acting ViceGovernor and a fully functioning Regional Legislative Assembly can be done away with
even temporarily. To our mind, the appointment of OICs under the present circumstances
is an absolute necessity. SEIDAC
Significantly, the grant to the President of the power to appoint OICs to undertake the
functions of the elective members of the Regional Legislative Assembly is neither novel
nor innovative. We hark back to our earlier pronouncement in Menzon v. Petilla, etc., et
al.: 79
It may be noted that under Commonwealth Act No. 588 and the Revised Administrative
Code of 1987, the President is empowered to make temporary appointments in certain
public offices, in case of any vacancy that may occur. Albeit both laws deal only with the
filling of vacancies in appointive positions. However, in the absence of any contrary
provision in the Local Government Code and in the best interest of public service, we see
no cogent reason why the procedure thus outlined by the two laws may not be similarly
applied in the present case. The respondents contend that the provincial board is the
correct appointing power. This argument has no merit. As between the President who has
supervision over local governments as provided by law and the members of the board
who are junior to the vice-governor, we have no problem ruling in favor of the President,
until the law provides otherwise.
A vacancy creates an anomalous situation and finds no approbation under the law for it
deprives the constituents of their right of representation and governance in their own local
government.
In a republican form of government, the majority rules through their chosen few, and if
one of them is incapacitated or absent, etc., the management of governmental affairs is,
to that extent, may be hampered. Necessarily, there will be a consequent delay in the
151
delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is
missing. 80 (Emphasis ours.)
As in Menzon, leaving the positions of ARMM Governor, Vice Governor, and members of
the Regional Legislative Assembly vacant for 21 months, or almost 2 years, would clearly
cause disruptions and delays in the delivery of basic services to the people, in the proper
management of the affairs of the regional government, and in responding to critical
developments that may arise. When viewed in this context, allowing the President in the
exercise of his constitutionally-recognized appointment power to appoint OICs is, in our
judgment, a reasonable measure to take.
B. Autonomy in the ARMM
It is further argued that while synchronization may be constitutionally mandated, it cannot
be used to defeat or to impede the autonomy that the Constitution granted to the ARMM.
Phrased in this manner, one would presume that there exists a conflict between two
recognized Constitutional mandates synchronization and regional autonomy such
that it is necessary to choose one over the other.
We find this to be an erroneous approach that violates a basic principle in constitutional
construction ut magis valeat quam pereat: that the Constitution is to be interpreted as
a whole, 81 and one mandate should not be given importance over the other except where
the primacy of one over the other is clear. 82 We refer to the Court's declaration in AngAngco v. Castillo, et al., 83 thus:
A provision of the constitution should not be construed in isolation from the rest. Rather,
the constitution must be interpreted as a whole, and apparently, conflicting provisions
should be reconciled and harmonized in a manner that may give to all of them full force
and effect. [Emphasis supplied.]
Synchronization is an interest that is as constitutionally entrenched as regional autonomy.
They are interests that this Court should reconcile and give effect to, in the way that
Congress did in RA No. 10153 which provides the measure to transit to synchronized
regional elections with the least disturbance on the interests that must be respected.
Particularly, regional autonomy will be respected instead of being sidelined, as the law
does not in any way alter, change or modify its governing features, except in a very
temporary manner and only as necessitated by the attendant circumstances.
Elsewhere, it has also been argued that the ARMM elections should not be synchronized
with the national and local elections in order to maintain the autonomy of the ARMM and
insulate its own electoral processes from the rough and tumble of nationwide and local
elections. This argument leaves us far from convinced of its merits.
As heretofore mentioned and discussed, while autonomous regions are granted political
autonomy, the framers of the Constitution never equated autonomy with independence.
The ARMM as a regional entity thus continues to operate within the larger framework of
the State and is still subject to the national policies set by the national government, save
only for those specific areas reserved by the Constitution for regional autonomous
determination. As reflected during the constitutional deliberations of the provisions on
autonomous regions: EHSADc
Mr. Bennagen. . . . We do not see here a complete separation from the central
government, but rather an efficient working relationship between the autonomous region
and the central government. We see this as an effective partnership, not a separation.
Mr. Romulo. Therefore, complete autonomy is not really thought of as complete
independence.
152
Mr. Ople. We define it as a measure of self-government within the larger political

framework of the nation. 84 [Emphasis supplied.]
This exchange of course is fully and expressly reflected in the above-quoted Section 17,
Article X of the Constitution, and by the express reservation under Section 1 of the same
Article that autonomy shall be "within the framework of this Constitution and the national
sovereignty as well as the territorial integrity of the Republic of the Philippines."
Interestingly, the framers of the Constitution initially proposed to remove Section 17 of
Article X, believing it to be unnecessary in light of the enumeration of powers granted to
autonomous regions in Section 20, Article X of the Constitution. Upon further reflection,
the framers decided to reinstate the provision in order to "make it clear, once and for all,
that these are the limits of the powers of the autonomous government. Those not
enumerated are actually to be exercised by the national government[.]"85 Of note is the
Court's pronouncement in Pimentel, Jr. v. Hon. Aguirre 86 which we quote:
Under the Philippine concept of local autonomy, the national government has not
completely relinquished all its powers over local governments, including autonomous
regions. Only administrative powers over local affairs are delegated to political
subdivisions. The purpose of the delegation is to make governance more directly
responsive and effective at the local levels. In turn, economic, political and social
development at the smaller political units are expected to propel social and economic
growth and development. But to enable the country to develop as a whole, the programs
and policies effected locally must be integrated and coordinated towards a common
national goal. Thus, policy-setting for the entire country still lies in the President and
Congress. [Emphasis ours.] AIcECS
In other words, the autonomy granted to the ARMM cannot be invoked to defeat national
policies and concerns. Since the synchronization of elections is not just a regional
concern but a national one, the ARMM is subject to it; the regional autonomy granted to
the ARMM cannot be used to exempt the region from having to act in accordance with a
national policy mandated by no less than the Constitution.
Conclusion
Congress acted within its powers and pursuant to a constitutional mandate the
synchronization of national and local elections when it enacted RA No. 10153. This
Court cannot question the manner by which Congress undertook this task; the Judiciary
does not and cannot pass upon questions of wisdom, justice or expediency of legislation.
87 As judges, we can only interpret and apply the law and, despite our doubts about its
wisdom, cannot repeal or amend it. 88
Nor can the Court presume to dictate the means by which Congress should address what
is essentially a legislative problem. It is not within the Court's power to enlarge or abridge
laws; otherwise, the Court will be guilty of usurping the exclusive prerogative of Congress.
89 The petitioners, in asking this Court to compel COMELEC to hold special elections
despite its lack of authority to do so, are essentially asking us to venture into the realm of
judicial legislation, which is abhorrent to one of the most basic principles of a republican
and democratic government the separation of powers.
The petitioners allege, too, that we should act because Congress acted with grave abuse
of discretion in enacting RA No. 10153. 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 to a virtual refusal to perform a duty enjoined by law or to act at all in
contemplation of the law as where the power is exercised in an arbitrary and despotic
manner by reason of passion and hostility. 90
We find that Congress, in passing RA No. 10153, acted strictly within its constitutional
mandate. Given an array of choices, it acted within due constitutional bounds and with
153
marked reasonableness in light of the necessary adjustments that synchronization

demands. Congress, therefore, cannot be accused of any evasion of a positive duty or of
a refusal to perform its duty. We thus find no reason to accord merit to the petitioners'
claims of grave abuse of discretion. aHESCT
On the general claim that RA No. 10153 is unconstitutional, we can only reiterate the
established rule that every statute is presumed valid. 91 Congress, thus, has in its favor
the presumption of constitutionality of its acts, and the party challenging the validity of a
statute has the onerous task of rebutting this presumption. 92 Any reasonable doubt
about the validity of the law should be resolved in favor of its constitutionality. 93 As this
Court declared in Garcia v. Executive Secretary: 94
The policy of the courts is to avoid ruling on constitutional questions and to presume that
the acts of the political departments are valid in the absence of a clear and unmistakable
showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine
of separation of powers which enjoins upon each department a becoming respect for the
acts of the other departments. The theory is that as the joint act of Congress and the
President of the Philippines, a law has been carefully studied and determined to be in
accordance with the fundamental law before it was finally enacted. 95 [Emphasis ours.]
Given the failure of the petitioners to rebut the presumption of constitutionality in favor of
RA No. 10153, we must support and confirm its validity.
WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing
the validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this
law. We likewise LIFT the temporary restraining order we issued in our Resolution of
September 13, 2011. No costs.
SO ORDERED. DHSCTI
Corona, C.J., Leonardo-de Castro, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr.,
Perez, Mendoza, Sereno, Reyes, and Perlas-Bernabe, JJ., concur.
Carpio and Velasco, Jr., JJ., with dissenting opinion.
||| (Abas Kida v. Senate of the Philippines, G.R. No. 196271, 196305, 197221, 197280,
197282, 197392, 197454, [October 18, 2011], 675 PHIL 316-442)
7. DATU MICHAEL ABAS KIDA vs. SENATE 667 SCRA 270 (2012)
EN BANC
[G.R. No. 196271. February 28, 2012.]
DATU MICHAEL ABAS KIDA, in his personal capacity, and in representation of
MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION,
INC., HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN
TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE
ABDIL, and BASSAM ALUH SAUPI, petitioners, vs. SENATE OF THE PHILIPPINES,
represented by its President JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES,
thru SPEAKER FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its
Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office of the President
Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget, and ROBERTO
TAN, Treasurer of the Philippines, respondents.
[G.R. No. 196305. February 28, 2012.]
154
BASARI D. MAPUPUNO, petitioner, vs. SIXTO BRILLANTES, in his capacity as

Chairman of the Commission on Elections, FLORENCIO ABAD, JR. in his capacity as
Secretary of the Department of Budget and Management, PAQUITO OCHOA, JR., in his
capacity as Executive Secretary, JUAN PONCE ENRILE, in his capacity as Senate
President, and FELICIANO BELMONTE, in his capacity as Speaker of the House of
Representatives, respondents.
[G.R. No. 197221. February 28, 2012.]
REP. EDCEL C. LAGMAN, petitioner, vs. PAQUITO N. OCHOA, JR., in his capacity as
the Executive Secretary, and the COMMISSION ON ELECTIONS, respondents.
[G.R. No. 197280. February 28, 2012.]
ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and PARTIDO
DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDP-LABAN), petitioners, vs. THE
COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR., HON.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON. FLORENCIO
B. ABAD, JR., in his capacity as Secretary of the Department of Budget and Management,
and HON. ROBERTO B. TAN, in his capacity as Treasurer of the Philippines,
respondents.
[G.R. No. 197282. February 28, 2012.]
ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS and
THE OFFICE OF THE PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N.
OCHOA, JR., respondents.
[G.R. No. 197392. February 28, 2012.]
LOUIS "BAROK" C. BIRAOGO, petitioner, vs. THE COMMISSION ON ELECTIONS and
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., respondents.
[G.R. No. 197454. February 28, 2012.]
JACINTO V. PARAS, petitioner, vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR., and the COMMISSION ON ELECTIONS, respondents.
MINORITY RIGHTS FORUM, PHILIPPINES, INC., respondents-intervenor.
RESOLUTION
BRION, J p:
We resolve: (a) the motion for reconsideration filed by petitioners Datu Michael Abas Kida,
et al. in G.R. No. 196271; (b) the motion for reconsideration filed by petitioner Rep. Edcel
Lagman in G.R. No. 197221; (c) the ex abundante ad cautelam motion for reconsideration
filed by petitioner Basari Mapupuno in G.R. No. 196305; (d) the motion for reconsideration
filed by petitioner Atty. Romulo Macalintal in G.R. No. 197282; (e) the motion for
reconsideration filed by petitioners Almarim Centi Tillah, Datu Casan Conding Cana and
Partido Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the manifestation
and motion filed by petitioners Almarim Centi Tillah, et al. in G.R. No. 197280; and (g) the
very urgent motion to issue clarificatory resolution that the temporary restraining order
(TRO) is still existing and effective.
These motions assail our Decision dated October 18, 2011, where we upheld the
constitutionality of Republic Act (RA) No. 10153. Pursuant to the constitutional mandate
155
of synchronization, RA No. 10153 postponed the regional elections in the Autonomous

Region in Muslim Mindanao (ARMM) (which were scheduled to be held on the second
Monday of August 2011) to the second Monday of May 2013 and recognized the
President's power to appoint officers-in-charge (OICs) to temporarily assume these
positions upon the expiration of the terms of the elected officials.
The Motions for Reconsideration
The petitioners in G.R. No. 196271 raise the following grounds in support of their motion:
I. THE HONORABLE COURT ERRED IN CONCLUDING THAT THE ARMM
ELECTIONS ARE LOCAL ELECTIONS, CONSIDERING THAT THE CONSTITUTION
GIVES THE ARMM A SPECIAL STATUS AND IS SEPARATE AND DISTINCT FROM
ORDINARY LOCAL GOVERNMENT UNITS.
II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.
III. THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A. 9054) ARE
NOT IRREPEALABLE LAWS.
IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE SECTION 18,
ARTICLE X OF THE CONSTITUTION.
V. BALANCE OF INTERESTS TILT IN FAVOR OF THE DEMOCRATIC PRINCIPLE[.] 1
ISCTcH
The petitioner in G.R. No. 197221 raises similar grounds, arguing that:
I. THE ELECTIVE REGIONAL EXECUTIVE AND LEGISLATIVE OFFICIALS OF ARMM
CANNOT BE CONSIDERED AS OR EQUATED WITH THE TRADITIONAL LOCAL
GOVERNMENT OFFICIALS IN THE LOCAL GOVERNMENT UNITS (LGUs) BECAUSE
(A) THERE IS NO EXPLICIT CONSTITUTIONAL PROVISION ON SUCH PARITY; AND
(B) THE ARMM IS MORE SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND
AUTONOMY, AND CONSEQUENTLY IS A CLASS OF ITS OWN APART FROM
TRADITIONAL LGUs.
II. THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL MANDATE FOR AN
ELECTIVE AND REPRESENTATIVE EXECUTIVE DEPARTMENT AND LEGISLATIVE
ASSEMBLY IN ARMM INDUBITABLY PRECLUDES THE APPOINTMENT BY THE
PRESIDENT OF OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY OR
TEMPORARY, FOR THE POSITIONS OF ARMM GOVERNOR, VICE GOVERNOR AND
MEMBERS OF THE REGIONAL ASSEMBLY.
III. THE PRESIDENT'S APPOINTING POWER IS LIMITED TO APPOINTIVE OFFICIALS
AND DOES NOT EXTEND TO ELECTIVE OFFICIALS EVEN AS THE PRESIDENT IS
ONLY VESTED WITH SUPERVISORY POWERS OVER THE ARMM, THEREBY
NEGATING THE AWESOME POWER TO APPOINT AND REMOVE OICs OCCUPYING
ELECTIVE POSITIONS.
IV. THE CONSTITUTION DOES NOT PROSCRIBE THE HOLDOVER OF ARMM
ELECTED OFFICIALS PENDING THE ELECTION AND QUALIFICATION OF THEIR
SUCCESSORS.
V. THE RULING IN OSMENA DOES NOT APPLY TO ARMM ELECTED OFFICIALS
WHOSE TERMS OF OFFICE ARE NOT PROVIDED FOR BY THE CONSTITUTION BUT
PRESCRIBED BY THE ORGANIC ACTS.
156
VI. THE REQUIREMENT OF A SUPERMAJORITY OF 3/4 VOTES IN THE HOUSE OF

REPRESENTATIVES AND THE SENATE FOR THE VALIDITY OF A SUBSTANTIVE
AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT IMPOSE AN
IRREPEALABLE LAW.
VII. THE REQUIREMENT OF A PLEBISCITE FOR THE EFFECTIVITY OF A
SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT
UNDULY EXPAND THE PLEBISCITE REQUIREMENT OF THE CONSTITUTION.
VIII. SYNCHRONIZATION OF THE ARMM ELECTION WITH THE NATIONAL AND
LOCAL ELECTIONS IS NOT MANDATED BY THE CONSTITUTION.
IX. THE COMELEC HAS THE AUTHORITY TO HOLD AND CONDUCT SPECIAL
ELECTIONS IN ARMM, AND THE ENACTMENT OF AN IMPROVIDENT AND
UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS CAUSE WARRANTING
COMELEC'S HOLDING OF SPECIAL ELECTIONS. 2 (italics supplied)
The petitioner in G.R. No. 196305 further asserts that:
I. BEFORE THE COURT MAY CONSTRUE OR INTERPRET A STATUTE, IT IS A
CONDITION SINE QUA NON THAT THERE BE DOUBT OR AMBIGUITY IN ITS
LANGUAGE.
THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND UNAMBIGUOUS:
THEY REFER TO THE 1992 ELECTIONS AND TURN-OVER OF ELECTIVE
OFFICIALS. IN THUS RECOGNIZING A SUPPOSED "INTENT" OF THE FRAMERS,
AND APPLYING THE SAME TO ELECTIONS 20 YEARS AFTER, THE HONORABLE
SUPREME COURT MAY HAVE VIOLATED THE FOREMOST RULE IN STATUTORY
CONSTRUCTION. HTCSDE
xxx xxx xxx
II. THE HONORABLE COURT SHOULD HAVE CONSIDERED THAT RA 9054, AN
ORGANIC ACT, WAS COMPLETE IN ITSELF. HENCE, RA 10153 SHOULD BE
CONSIDERED TO HAVE BEEN ENACTED PRECISELY TO AMEND RA 9054.
xxx xxx xxx
III. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN
DECLARING THE 2/3 VOTING REQUIREMENT SET FORTH IN RA 9054 AS
UNCONSTITUTIONAL.
xxx xxx xxx
IV. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN
HOLDING THAT A PLEBISCITE IS NOT NECESSARY IN AMENDING THE ORGANIC
ACT.
xxx xxx xxx
V. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN DECLARING THE
HOLD-OVER OF ARMM ELECTIVE OFFICIALS UNCONSTITUTIONAL.
xxx xxx xxx
VI. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN UPHOLDING THE
APPOINTMENT OF OFFICERS-IN-CHARGE. 3 (italics and underscoring supplied)
157
The petitioner in G.R. No. 197282 contends that:

A.
ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF OICs FOR THE
REGIONAL GOVERNMENT OF THE ARMM IS NOT UNCONSTITUTIONAL TO BEGIN
WITH, SUCH APPOINTMENT OF OIC REGIONAL OFFICIALS WILL CREATE A
FUNDAMENTAL CHANGE IN THE BASIC STRUCTURE OF THE REGIONAL
GOVERNMENT SUCH THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED TO
A PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS PEOPLE, WHICH PLEBISCITE
REQUIREMENT CANNOT BE CIRCUMVENTED BY SIMPLY CHARACTERIZING THE
PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT OF OICs AS AN "INTERIM
MEASURE".
B.
THE HONORABLE COURT ERRED IN RULING THAT THE APPOINTMENT BY THE
PRESIDENT OF OICs FOR THE ARMM REGIONAL GOVERNMENT IS NOT
VIOLATIVE OF THE CONSTITUTION.
C.
THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT VIOLATE THE
CONSTITUTION, AND BEFORE THEIR SUCCESSORS ARE ELECTED IN EITHER AN
ELECTION TO BE HELD AT THE SOONEST POSSIBLE TIME OR IN MAY 2013, THE
SAID INCUMBENT ARMM REGIONAL OFFICIALS MAY VALIDLY CONTINUE
FUNCTIONING AS SUCH IN A HOLDOVER CAPACITY IN ACCORDANCE WITH
SECTION 7, ARTICLE VII OF R.A. NO. 9054.
D.
WITH THE CANCELLATION OF THE AUGUST 2011 ARMM ELECTIONS, SPECIAL
ELECTIONS MUST IMMEDIATELY BE HELD FOR THE ELECTIVE REGIONAL
OFFICIALS OF THE ARMM WHO SHALL SERVE UNTIL THEIR SUCCESSORS ARE
ELECTED IN THE MAY 2013 SYNCHRONIZED ELECTIONS. 4
Finally, the petitioners in G.R. No. 197280 argue that:
a) the Constitutional mandate of synchronization does not apply to the ARMM elections;
cEDIAa
b) RA No. 10153 negates the basic principle of republican democracy which, by
constitutional mandate, guides the governance of the Republic;
c) RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has to comply with
the 2/3 vote from the House of Representatives and the Senate, voting separately, and
be ratified in a plebiscite;
d) if the choice is between elective officials continuing to hold their offices even after their
terms are over and non-elective individuals getting into the vacant elective positions by
appointment as OICs, the holdover option is the better choice;
e) the President only has the power of supervision over autonomous regions, which does
not include the power to appoint OICs to take the place of ARMM elective officials; and
158
f) it would be better to hold the ARMM elections separately from the national and local
elections as this will make it easier for the authorities to implement election laws.
In essence, the Court is asked to resolve the following questions:
(a) Does the Constitution mandate the synchronization of ARMM regional elections with
national and local elections?
(b) Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153 have to comply
with the supermajority vote and plebiscite requirements?
(c) Is the holdover provision in RA No. 9054 constitutional?
(d) Does the COMELEC have the power to call for special elections in ARMM?
(e) Does granting the President the power to appoint OICs violate the elective and
representative nature of ARMM regional legislative and executive offices? ECaHSI
(f) Does the appointment power granted to the President exceed the President's
supervisory powers over autonomous regions?
The Court's Ruling
We deny the motions for lack of merit.
Synchronization mandate includes ARMM elections
The Court was unanimous in holding that the Constitution mandates the synchronization
of national and local elections. While the Constitution does not expressly instruct
Congress to synchronize the national and local elections, the intention can be inferred
from the following provisions of the Transitory Provisions (Article XVIII) of the Constitution,
which state:
Section 1. The first elections of Members of the Congress under this Constitution shall be
held on the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the President, which
may be simultaneous with the election of the Members of the Congress. It shall include
the election of all Members of the city or municipal councils in the Metropolitan Manila
area.
Section 2. The Senators, Members of the House of Representatives, and the local officials
first elected under this Constitution shall serve until noon of June 30, 1992.
Of the Senators elected in the elections in 1992, the first twelve obtaining the highest
number of votes shall serve for six years and the remaining twelve for three years.
xxx xxx xxx
Section 5. The six-year term of the incumbent President and Vice-President elected in
the February 7, 1986 election is, for purposes of synchronization of elections, hereby
extended to noon of June 30, 1992.
The first regular elections for the President and Vice-President under this Constitution
shall be held on the second Monday of May, 1992.
To fully appreciate the constitutional intent behind these provisions, we refer to the
discussions of the Constitutional Commission:
159
MR. MAAMBONG. For purposes of identification, I will now read a section which we will
temporarily indicate as Section 14. It reads: "THE SENATORS, MEMBERS OF THE
HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE
FIRST ELECTION SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE
1992."
This was presented by Commissioner Davide, so may we ask that Commissioner Davide
be recognized.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.
MR. DAVIDE. Before going to the proposed amendment, I would only state that in view
of the action taken by the Commission on Section 2 earlier, I am formulating a new
proposal. It will read as follows: "THE SENATORS, MEMBERS OF THE HOUSE OF
REPRESENTATIVES AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS
CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30, 1992."
I proposed this because of the proposed section of the Article on Transitory Provisions
giving a term to the incumbent President and Vice-President until 1992. Necessarily then,
since the term provided by the Commission for Members of the Lower House and for local
officials is three years, if there will be an election in 1987, the next election for said officers
will be in 1990, and it would be very close to 1992. We could never attain, subsequently,
any synchronization of election which is once every three years. EAcCHI
So under my proposal we will be able to begin actual synchronization in 1992, and
consequently, we should not have a local election or an election for Members of the Lower
House in 1990 for them to be able to complete their term of three years each. And if we
also stagger the Senate, upon the first election it will result in an election in 1993 for the
Senate alone, and there will be an election for 12 Senators in 1990. But for the remaining
12 who will be elected in 1987, if their term is for six years, their election will be in 1993.
So, consequently we will have elections in 1990, in 1992 and in 1993. The later election
will be limited to only 12 Senators and of course to the local officials and the Members of
the Lower House. But, definitely, thereafter we can never have an election once every
three years, therefore defeating the very purpose of the Commission when we adopted
the term of six years for the President and another six years for the Senators with the
possibility of staggering with 12 to serve for six years and 12 for three years insofar as
the first Senators are concerned. And so my proposal is the only way to effect the first
synchronized election which would mean, necessarily, a bonus of two years to the
Members of the Lower House and a bonus of two years to the local elective officials.
THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?
MR. DE CASTRO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized.
MR. DE CASTRO. Thank you.
During the discussion on the legislative and the synchronization of elections, I was the
one who proposed that in order to synchronize the elections every three years, which the
body approved the first national and local officials to be elected in 1987 shall continue
in office for five years, the same thing the Honorable Davide is now proposing. That
means they will all serve until 1992, assuming that the term of the President will be for six
years and continue beginning in 1986. So from 1992, we will again have national, local
and presidential elections. This time, in 1992, the President shall have a term until 1998
and the first 12 Senators will serve until 1998, while the next 12 shall serve until 1995,
160
and then the local officials elected in 1992 will serve until 1995. From then on, we shall
have an election every three years.
So, I will say that the proposition of Commissioner Davide is in order, if we have to
synchronize our elections every three years which was already approved by the body.
Thank you, Mr. Presiding Officer.
xxx xxx xxx
MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent
President and Vice-President in 1992.
MR. DAVIDE. Yes. EHACcT
MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the
Senators and local officials with the election of the President?
MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the
assumption that the provision of the Transitory Provisions on the term of the incumbent
President and Vice-President would really end in 1992.
MR. GUINGONA. Yes.
MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the
President up to the municipal officials. 5 (emphases and underscoring ours)
The framers of the Constitution could not have expressed their objective more clearly
there was to be a single election in 1992 for all elective officials from the President
down to the municipal officials. Significantly, the framers were even willing to temporarily
lengthen or shorten the terms of elective officials in order to meet this objective,
highlighting the importance of this constitutional mandate.
We came to the same conclusion in Osmea v. Commission on Elections, 6 where we
unequivocally stated that "the Constitution has mandated synchronized national and local
elections." 7 Despite the length and verbosity of their motions, the petitioners have failed
to convince us to deviate from this established ruling.
Neither do we find any merit in the petitioners' contention that the ARMM elections are
not covered by the constitutional mandate of synchronization because the ARMM
elections were not specifically mentioned in the above-quoted Transitory Provisions of
the Constitution.
That the ARMM elections were not expressly mentioned in the Transitory Provisions of
the Constitution on synchronization cannot be interpreted to mean that the ARMM
elections are not covered by the constitutional mandate of synchronization. We have to
consider that the ARMM, as we now know it, had not yet been officially organized at the
time the Constitution was enacted and ratified by the people. Keeping in mind that a
constitution is not intended to provide merely for the exigencies of a few years but is to
endure through generations for as long as it remains unaltered by the people as ultimate
sovereign, a constitution should be construed in the light of what actually is a continuing
instrument to govern not only the present but also the unfolding events of the indefinite
future. Although the principles embodied in a constitution remain fixed and unchanged
from the time of its adoption, a constitution must be construed as a dynamic process
intended to stand for a great length of time, to be progressive and not static. 8
161
To reiterate, Article X of the Constitution, entitled "Local Government," clearly shows the
intention of the Constitution to classify autonomous regions, such as the ARMM, as local
governments. We refer to Section 1 of this Article, which provides:
Section 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous regions
in Muslim Mindanao and the Cordilleras as hereinafter provided.
The inclusion of autonomous regions in the enumeration of political subdivisions of the
State under the heading "Local Government" indicates quite clearly the constitutional
intent to consider autonomous regions as one of the forms of local governments. HSTaEC
That the Constitution mentions only the "national government" and the "local
governments," and does not make a distinction between the "local government" and the
"regional government," is particularly revealing, betraying as it does the intention of the
framers of the Constitution to consider the autonomous regions not as separate forms of
government, but as political units which, while having more powers and attributes than
other local government units, still remain under the category of local governments. Since
autonomous regions are classified as local governments, it follows that elections held in
autonomous regions are also considered as local elections.
The petitioners further argue that even assuming that the Constitution mandates the
synchronization of elections, the ARMM elections are not covered by this mandate since
they are regional elections and not local elections.
In construing provisions of the Constitution, the first rule is verba legis, "that is, wherever
possible, the words used in the Constitution must be given their ordinary meaning except
where technical terms are employed." 9 Applying this principle to determine the scope of
"local elections," we refer to the meaning of the word "local," as understood in its ordinary
sense. As defined in Webster's Third New International Dictionary Unabridged, "local"
refers to something "that primarily serves the needs of a particular limited district, often a
community or minor political subdivision." Obviously, the ARMM elections, which are held
within the confines of the autonomous region of Muslim Mindanao, fall within this
definition.
To be sure, the fact that the ARMM possesses more powers than other provinces, cities,
or municipalities is not enough reason to treat the ARMM regional elections differently
from the other local elections. Ubi lex non distinguit nec nos distinguire debemus. When
the law does not distinguish, we must not distinguish. 10
RA No. 10153 does not amend RA No. 9054
The petitioners are adamant that the provisions of RA No. 10153, in postponing the
ARMM elections, amend RA No. 9054.
We cannot agree with their position.
A thorough reading of RA No. 9054 reveals that it fixes the schedule for only the first
ARMM elections; 11 it does not provide the date for the succeeding regular ARMM
elections. In providing for the date of the regular ARMM elections, RA No. 9333 and RA
No. 10153 clearly do not amend RA No. 9054 since these laws do not change or revise
any provision in RA No. 9054. In fixing the date of the ARMM elections subsequent to the
first election, RA No. 9333 and RA No. 10153 merely filled the gap left in RA No. 9054.
We reiterate our previous observations:
162
This view that Congress thought it best to leave the determination of the date of
succeeding ARMM elections to legislative discretion finds support in ARMM's recent
history.
To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections.
The First Organic Act RA No. 6734 not only did not fix the date of the subsequent
elections; it did not even fix the specific date of the first ARMM elections, leaving the date
to be fixed in another legislative enactment. Consequently, RA No. 7647, RA No. 8176,
RA No. 8746, RA No. 8753, and RA No. 9012 were all enacted by Congress to fix the
dates of the ARMM elections. Since these laws did not change or modify any part or
provision of RA No. 6734, they were not amendments to this latter law. Consequently,
there was no need to submit them to any plebiscite for ratification.
The Second Organic Act RA No. 9054 which lapsed into law on March 31, 2001,
provided that the first elections would be held on the second Monday of September 2001.
Thereafter, Congress passed RA No. 9140 to reset the date of the ARMM elections.
Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the
Second Organic Act (RA No. 9054), the new date of the ARMM regional elections fixed
in RA No. 9140 was not among the provisions ratified in the plebiscite held to approve RA
No. 9054. Thereafter, Congress passed RA No. 9333, which further reset the date of the
ARMM regional elections. Again, this law was not ratified through a plebiscite.
From these legislative actions, we see the clear intention of Congress to treat the laws
which fix the date of the subsequent ARMM elections as separate and distinct from the
Organic Acts. Congress only acted consistently with this intent when it passed RA No.
10153 without requiring compliance with the amendment prerequisites embodied in
Section 1 and Section 3, Article XVII of RA No. 9054. 12 (emphases supplied) DEHcTI
The petitioner in G.R. No. 196305 contends, however, that there is no lacuna in RA No.
9054 as regards the date of the subsequent ARMM elections. In his estimation, it can be
implied from the provisions of RA No. 9054 that the succeeding elections are to be held
three years after the date of the first ARMM regional elections.
We find this an erroneous assertion. Well-settled is the rule that the court may not, in the
guise of interpretation, enlarge the scope of a statute and include therein situations not
provided nor intended by the lawmakers. An omission at the time of enactment, whether
careless or calculated, cannot be judicially supplied however later wisdom may
recommend the inclusion. 13 Courts are not authorized to insert into the law what they
think should be in it or to supply what they think the legislature would have supplied if its
attention had been called to the omission. 14 Providing for lapses within the law falls
within the exclusive domain of the legislature, and courts, no matter how well-meaning,
have no authority to intrude into this clearly delineated space.
Since RA No. 10153 does not amend, but merely fills in the gap in RA No. 9054, there is
no need for RA No. 10153 to comply with the amendment requirements set forth in Article
XVII of RA No. 9054.
Supermajority vote requirement makes RA No. 9054 an irrepealable law
Even assuming that RA No. 10153 amends RA No. 9054, however, we have already
established that the supermajority vote requirement set forth in Section 1, Article XVII of
RA No. 9054 15 is unconstitutional for violating the principle that Congress cannot pass
irrepealable laws.
The power of the legislature to make laws includes the power to amend and repeal these
laws. Where the legislature, by its own act, attempts to limit its power to amend or repeal
laws, the Court has the duty to strike down such act for interfering with the plenary powers
of Congress. As we explained in Duarte v. Dade: 16
163
A state legislature has a plenary law-making power over all subjects, whether pertaining
to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal
the old, unless prohibited expressly or by implication by the federal constitution or limited
or restrained by its own. It cannot bind itself or its successors by enacting irrepealable
laws except when so restrained. Every legislative body may modify or abolish the acts
passed by itself or its predecessors. This power of repeal may be exercised at the same
session at which the original act was passed; and even while a bill is in its progress and
before it becomes a law. This legislature cannot bind a future legislature to a particular
mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the
effect of subsequent legislation upon existing statutes. [emphasis ours]
Under our Constitution, each House of Congress has the power to approve bills by a mere
majority vote, provided there is quorum. 17 In requiring all laws which amend RA No.
9054 to comply with a higher voting requirement than the Constitution provides (2/3 vote),
Congress, which enacted RA No. 9054, clearly violated the very principle which we
sought to establish in Duarte. To reiterate, the act of one legislature is not binding upon,
and cannot tie the hands of, future legislatures. 18 HDTCSI
We also highlight an important point raised by Justice Antonio T. Carpio in his dissenting
opinion, where he stated: "Section 1, Article XVII of RA 9054 erects a high vote threshold
for each House of Congress to surmount, effectively and unconstitutionally, taking RA
9054 beyond the reach of Congress' amendatory powers. One Congress cannot limit or
reduce the plenary legislative power of succeeding Congresses by requiring a higher vote
threshold than what the Constitution requires to enact, amend or repeal laws. No law can
be passed fixing such a higher vote threshold because Congress has no power, by
ordinary legislation, to amend the Constitution." 19
Plebiscite requirement in RA No. 9054 overly broad
Similarly, we struck down the petitioners' contention that the plebiscite requirement 20
applies to all amendments of RA No. 9054 for being an unreasonable enlargement of the
plebiscite requirement set forth in the Constitution.
Section 18, Article X of the Constitution provides that "[t]he creation of the autonomous
region shall be effective when approved by majority of the votes cast by the constituent
units in a plebiscite called for the purpose[.]" We interpreted this to mean that only
amendments to, or revisions of, the Organic Act constitutionally-essential to the creation
of autonomous regions i.e., those aspects specifically mentioned in the Constitution
which Congress must provide for in the Organic Act 21 require ratification through a
plebiscite. We stand by this interpretation.
The petitioners argue that to require all amendments to RA No. 9054 to comply with the
plebiscite requirement is to recognize that sovereignty resides primarily in the people.
While we agree with the petitioners' underlying premise that sovereignty ultimately
resides with the people, we disagree that this legal reality necessitates compliance with
the plebiscite requirement for all amendments to RA No. 9054. For if we were to go by
the petitioners' interpretation of Section 18, Article X of the Constitution that all
amendments to the Organic Act have to undergo the plebiscite requirement before
becoming effective, this would lead to impractical and illogical results hampering the
ARMM's progress by impeding Congress from enacting laws that timely address
problems as they arise in the region, as well as weighing down the ARMM government
with the costs that unavoidably follow the holding of a plebiscite.
Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153, in giving the
President the power to appoint OICs to take the place of the elective officials of the
164
ARMM, creates a fundamental change in the basic structure of the government, and thus
requires compliance with the plebiscite requirement embodied in RA No. 9054.
Again, we disagree.
The pertinent provision in this regard is Section 3 of RA No. 10153, which reads:
Section 3. Appointment of Officers-in-Charge. The President shall appoint officers-incharge for the Office of the Regional Governor, Regional Vice Governor and Members of
the Regional Legislative Assembly who shall perform the functions pertaining to the said
offices until the officials duly elected in the May 2013 elections shall have qualified and
assumed office.
We cannot see how the above-quoted provision has changed the basic structure of the
ARMM regional government. On the contrary, this provision clearly preserves the basic
structure of the ARMM regional government when it recognizes the offices of the ARMM
regional government and directs the OICs who shall temporarily assume these offices to
"perform the functions pertaining to the said offices."
Unconstitutionality of the holdover provision
The petitioners are one in defending the constitutionality of Section 7 (1), Article VII of RA
No. 9054, which allows the regional officials to remain in their positions in a holdover
capacity. The petitioners essentially argue that the ARMM regional officials should be
allowed to remain in their respective positions until the May 2013 elections since there is
no specific provision in the Constitution which prohibits regional elective officials from
performing their duties in a holdover capacity.
The pertinent provision of the Constitution is Section 8, Article X which provides:
Section 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for more
than three consecutive terms. [emphases ours]
On the other hand, Section 7 (1), Article VII of RA No. 9054 provides:
Section 7. Terms of Office of Elective Regional Officials. (1) Terms of Office. The terms
of office of the Regional Governor, Regional Vice Governor and members of the Regional
Assembly shall be for a period of three (3) years, which shall begin at noon on the 30th
day of September next following the day of the election and shall end at noon of the same
date three (3) years thereafter. The incumbent elective officials of the autonomous region
shall continue in effect until their successors are elected and qualified.
The clear wording of Section 8, Article X of the Constitution expresses the intent of the
framers of the Constitution to categorically set a limitation on the period within which all
elective local officials can occupy their offices. We have already established that elective
ARMM officials are also local officials; they are, thus, bound by the three-year term limit
prescribed by the Constitution. It, therefore, becomes irrelevant that the Constitution does
not expressly prohibit elective officials from acting in a holdover capacity. Short of
amending the Constitution, Congress has no authority to extend the three-year term limit
by inserting a holdover provision in RA No. 9054. Thus, the term of three years for local
officials should stay at three (3) years, as fixed by the Constitution, and cannot be
extended by holdover by Congress.
Admittedly, we have, in the past, recognized the validity of holdover provisions in various
laws. One significant difference between the present case and these past cases 22 is that
while these past cases all refer to elective barangay or sangguniang kabataan officials
whose terms of office are not explicitly provided for in the Constitution, the present case
165
refers to local elective officials the ARMM Governor, the ARMM Vice Governor, and
the members of the Regional Legislative Assembly whose terms fall within the threeyear term limit set by Section 8, Article X of the Constitution.
Even assuming that a holdover is constitutionally permissible, and there had been
statutory basis for it (namely Section 7, Article VII of RA No. 9054), the rule of holdover
can only apply as an available option where no express or implied legislative intent to the
contrary exists; it cannot apply where such contrary intent is evident. 23
Congress, in passing RA No. 10153 and removing the holdover option, has made it clear
that it wants to suppress the holdover rule expressed in RA No. 9054. Congress, in the
exercise of its plenary legislative powers, has clearly acted within its discretion when it
deleted the holdover option, and this Court has no authority to question the wisdom of
this decision, absent any evidence of unconstitutionality or grave abuse of discretion. It is
for the legislature and the executive, and not this Court, to decide how to fill the vacancies
in the ARMM regional government which arise from the legislature complying with the
constitutional mandate of synchronization. aHATDI
COMELEC has no authority to hold special elections
Neither do we find any merit in the contention that the Commission on Elections
(COMELEC) is sufficiently empowered to set the date of special elections in the ARMM.
To recall, the Constitution has merely empowered the COMELEC to enforce and
administer all laws and regulations relative to the conduct of an election. 24 Although the
legislature, under the Omnibus Election Code (Batas Pambansa Bilang [BP] 881), has
granted the COMELEC the power to postpone elections to another date, this power is
confined to the specific terms and circumstances provided for in the law. Specifically, this
power falls within the narrow confines of the following provisions:
Section 5. Postponement of election. When for any serious cause such as violence,
terrorism, loss or destruction of election paraphernalia or records, force majeure, and
other analogous causes of such a nature that the holding of a free, orderly and honest
election should become impossible in any political subdivision, the Commission, motu
proprio or upon a verified petition by any interested party, and after due notice and
hearing, whereby all interested parties are afforded equal opportunity to be heard, shall
postpone the election therein to a date which should be reasonably close to the date of
the election not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause for such postponement or suspension of the
election or failure to elect.
Section 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud,
or other analogous causes the election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for the closing of the voting,
or after the voting and during the preparation and the transmission of the election returns
or in the custody or canvass thereof, such election results in a failure to elect, and in any
of such cases the failure or suspension of election would affect the result of the election,
the Commission shall, on the basis of a verified petition by any interested party and after
due notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date
of the election not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause of such postponement or suspension of the
election or failure to elect. [emphases and underscoring ours]
As we have previously observed in our assailed decision, both Section 5 and Section 6
of BP 881 address instances where elections have already been scheduled to take place
but do not occur or had to be suspended because of unexpected and unforeseen
circumstances, such as violence, fraud, terrorism, and other analogous circumstances.
166
In contrast, the ARMM elections were postponed by law, in furtherance of the

constitutional mandate of synchronization of national and local elections. Obviously, this
does not fall under any of the circumstances contemplated by Section 5 or Section 6 of
BP 881.
More importantly, RA No. 10153 has already fixed the date for the next ARMM elections
and the COMELEC has no authority to set a different election date.
Even assuming that the COMELEC has the authority to hold special elections, and this
Court can compel the COMELEC to do so, there is still the problem of having to shorten
the terms of the newly elected officials in order to synchronize the ARMM elections with
the May 2013 national and local elections. Obviously, neither the Court nor the
COMELEC has the authority to do this, amounting as it does to an amendment of Section
8, Article X of the Constitution, which limits the term of local officials to three years.
President's authority to appoint OICs
The petitioner in G.R. No. 197221 argues that the President's power to appoint pertains
only to appointive positions and cannot extend to positions held by elective officials.
The power to appoint has traditionally been recognized as executive in nature. 25 Section
16, Article VII of the Constitution describes in broad strokes the extent of this power, thus:
caCEDA
Section 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards. [emphasis ours]
The 1935 Constitution contained a provision similar to the one quoted above. Section 10
(3), Article VII of the 1935 Constitution provides:
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus, officers
of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain
or commander, and all other officers of the Government whose appointments are not
herein otherwise provided for, and those whom he may be authorized by law to appoint;
but the Congress may by law vest the appointment of inferior officers, in the President
alone, in the courts, or in the heads of departments. [emphasis ours]
The main distinction between the provision in the 1987 Constitution and its counterpart in
the 1935 Constitution is the sentence construction; while in the 1935 Constitution, the
various appointments the President can make are enumerated in a single sentence, the
1987 Constitution enumerates the various appointments the President is empowered to
make and divides the enumeration in two sentences. The change in style is significant; in
providing for this change, the framers of the 1987 Constitution clearly sought to make a
distinction between the first group of presidential appointments and the second group of
presidential appointments, as made evident in the following exchange:
MR. FOZ. Madame President . . . I propose to put a period (.) after "captain" and . . .
delete "and all" and substitute it with HE SHALL ALSO APPOINT ANY.
167
MR. REGALADO. Madam President, the Committee accepts the proposed amendment
because it makes it clear that those other officers mentioned therein do not have to be
confirmed by the Commission on Appointments. 26
The first group of presidential appointments, specified as the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers of the Armed
Forces, and other officers whose appointments are vested in the President by the
Constitution, pertains to the appointive officials who have to be confirmed by the
Commission on Appointments.
The second group of officials the President can appoint are "all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom
he may be authorized by law to appoint." 27 The second sentence acts as the "catch-all
provision" for the President's appointment power, in recognition of the fact that the power
to appoint is essentially executive in nature. 28 The wide latitude given to the President
to appoint is further demonstrated by the recognition of the President's power to appoint
officials whose appointments are not even provided for by law. In other words, where
there are offices which have to be filled, but the law does not provide the process for filling
them, the Constitution recognizes the power of the President to fill the office by
appointment.
Any limitation on or qualification to the exercise of the President's appointment power
should be strictly construed and must be clearly stated in order to be recognized. 29 Given
that the President derives his power to appoint OICs in the ARMM regional government
from law, it falls under the classification of presidential appointments covered by the
second sentence of Section 16, Article VII of the Constitution; the President's appointment
power thus rests on clear constitutional basis.
The petitioners also jointly assert that RA No. 10153, in granting the President the power
to appoint OICs in elective positions, violates Section 16, Article X of the Constitution, 30
which merely grants the President the power of supervision over autonomous regions.
DICSaH
This is an overly restrictive interpretation of the President's appointment power. There is
no incompatibility between the President's power of supervision over local governments
and autonomous regions, and the power granted to the President, within the specific
confines of RA No. 10153, to appoint OICs.
The power of supervision is defined as "the power of a superior officer to see to it that
lower officers perform their functions in accordance with law." 31 This is distinguished
from the power of control or "the power of an officer to alter or modify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the
judgment of the former for the latter." 32
The petitioners' apprehension regarding the President's alleged power of control over the
OICs is rooted in their belief that the President's appointment power includes the power
to remove these officials at will. In this way, the petitioners foresee that the appointed
OICs will be beholden to the President, and act as representatives of the President and
not of the people.
Section 3 of RA No. 10153 expressly contradicts the petitioners' supposition. The
provision states:
Section 3. Appointment of Officers-in-Charge. The President shall appoint officers-incharge for the Office of the Regional Governor, Regional Vice Governor and Members of
the Regional Legislative Assembly who shall perform the functions pertaining to the said
168
offices until the officials duly elected in the May 2013 elections shall have qualified and
assumed office.
The wording of the law is clear. Once the President has appointed the OICs for the offices
of the Governor, Vice Governor and members of the Regional Legislative Assembly,
these same officials will remain in office until they are replaced by the duly elected officials
in the May 2013 elections. Nothing in this provision even hints that the President has the
power to recall the appointments he already made. Clearly, the petitioners' fears in this
regard are more apparent than real.
RA No. 10153 as an interim measure
We reiterate once more the importance of considering RA No. 10153 not in a vacuum,
but within the context it was enacted in. In the first place, Congress enacted RA No. 10153
primarily to heed the constitutional mandate to synchronize the ARMM regional elections
with the national and local elections. To do this, Congress had to postpone the scheduled
ARMM elections for another date, leaving it with the problem of how to provide the ARMM
with governance in the intervening period, between the expiration of the term of those
elected in August 2008 and the assumption to office twenty-one (21) months away
of those who will win in the synchronized elections on May 13, 2013.
In our assailed Decision, we already identified the three possible solutions open to
Congress to address the problem created by synchronization (a) allow the incumbent
officials to remain in office after the expiration of their terms in a holdover capacity; (b)
call for special elections to be held, and shorten the terms of those to be elected so the
next ARMM regional elections can be held on May 13, 2013; or (c) recognize that the
President, in the exercise of his appointment powers and in line with his power of
supervision over the ARMM, can appoint interim OICs to hold the vacated positions in the
ARMM regional government upon the expiration of their terms. We have already
established the unconstitutionality of the first two options, leaving us to consider the last
available option.
In this way, RA No. 10153 is in reality an interim measure, enacted to respond to the
adjustment that synchronization requires. Given the context, we have to judge RA No.
10153 by the standard of reasonableness in responding to the challenges brought about
by synchronizing the ARMM elections with the national and local elections. In other words,
"given the plain unconstitutionality of providing for a holdover and the unavailability of
constitutional possibilities for lengthening or shortening the term of the elected ARMM
officials, is the choice of the President's power to appoint for a fixed and specific period
as an interim measure, and as allowed under Section 16, Article VII of the Constitution
an unconstitutional or unreasonable choice for Congress to make?"33 STaHIC
We admit that synchronization will temporarily disrupt the election process in a local
community, the ARMM, as well as the community's choice of leaders. However, we have
to keep in mind that the adoption of this measure is a matter of necessity in order to
comply with a mandate that the Constitution itself has set out for us. Moreover, the
implementation of the provisions of RA No. 10153 as an interim measure is comparable
to the interim measures traditionally practiced when, for instance, the President appoints
officials holding elective offices upon the creation of new local government units.
The grant to the President of the power to appoint OICs in place of the elective members
of the Regional Legislative Assembly is neither novel nor innovative. The power granted
to the President, via RA No. 10153, to appoint members of the Regional Legislative
Assembly is comparable to the power granted by BP 881 (the Omnibus Election Code)
to the President to fill any vacancy for any cause in the Regional Legislative Assembly
(then called the Sangguniang Pampook). 34
Executive is not bound by the principle of judicial courtesy
169
The petitioners in G.R. No. 197280, in their Manifestation and Motion dated December
21, 2011, question the propriety of the appointment by the President of Mujiv Hataman
as acting Governor and Bainon Karon as acting Vice Governor of the ARMM. They argue
that since our previous decision was based on a close vote of 8-7, and given the
numerous motions for reconsideration filed by the parties, the President, in recognition of
the principle of judicial courtesy, should have refrained from implementing our decision
until we have ruled with finality on this case.
We find the petitioners' reasoning specious.
Firstly, the principle of judicial courtesy is based on the hierarchy of courts and applies
only to lower courts in instances where, even if there is no writ of preliminary injunction
or TRO issued by a higher court, it would be proper for a lower court to suspend its
proceedings for practical and ethical considerations. 35 In other words, the principle of
"judicial courtesy" applies where there is a strong probability that the issues before the
higher court would be rendered moot and moribund as a result of the continuation of the
proceedings in the lower court or court of origin. 36 Consequently, this principle cannot
be applied to the President, who represents a co-equal branch of government. To suggest
otherwise would be to disregard the principle of separation of powers, on which our whole
system of government is founded upon.
Secondly, the fact that our previous decision was based on a slim vote of 8-7 does not,
and cannot, have the effect of making our ruling any less effective or binding. Regardless
of how close the voting is, so long as there is concurrence of the majority of the members
of the en banc who actually took part in the deliberations of the case, 37 a decision
garnering only 8 votes out of 15 members is still a decision of the Supreme Court en banc
and must be respected as such. The petitioners are, therefore, not in any position to
speculate that, based on the voting, "the probability exists that their motion for
reconsideration may be granted." 38 DTEHIA
Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue
Clarificatory Resolution, argues that since motions for reconsideration were filed by the
aggrieved parties challenging our October 18, 2011 decision in the present case, the TRO
we initially issued on September 13, 2011 should remain subsisting and effective. He
further argues that any attempt by the Executive to implement our October 18, 2011
decision pending resolution of the motions for reconsideration "borders on disrespect if
not outright insolence" 39 to this Court.
In support of this theory, the petitioner cites Samad v. COMELEC, 40 where the Court
held that while it had already issued a decision lifting the TRO, the lifting of the TRO is
not yet final and executory, and can also be the subject of a motion for reconsideration.
The petitioner also cites the minute resolution issued by the Court in Tolentino v.
Secretary of Finance, 41 where the Court reproached the Commissioner of the Bureau of
Internal Revenue for manifesting its intention to implement the decision of the Court,
noting that the Court had not yet lifted the TRO previously issued. 42 aTIAES
We agree with the petitioner that the lifting of a TRO can be included as a subject of a
motion for reconsideration filed to assail our decision. It does not follow, however, that the
TRO remains effective until after we have issued a final and executory decision,
especially considering the clear wording of the dispositive portion of our October 18, 2011
decision, which states:
WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing
the validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this
law. We likewise LIFT the temporary restraining order we issued in our Resolution of
September 13, 2011. No costs. 43 (emphases ours)
170
In this regard, we note an important distinction between Tolentino and the present case.
While it may be true that Tolentino and the present case are similar in that, in both cases,
the petitions assailing the challenged laws were dismissed by the Court, an examination
of the dispositive portion of the decision in Tolentino reveals that the Court did not
categorically lift the TRO. In sharp contrast, in the present case, we expressly lifted the
TRO issued on September 13, 2011. There is, therefore, no legal impediment to prevent
the President from exercising his authority to appoint an acting ARMM Governor and Vice
Governor as specifically provided for in RA No. 10153.
Conclusion
As a final point, we wish to address the bleak picture that the petitioner in G.R. No. 197282
presents in his motion, that our Decision has virtually given the President the power and
authority to appoint 672,416 OICs in the event that the elections of barangay and
Sangguniang Kabataan officials are postponed or cancelled. TCAHES
We find this speculation nothing short of fear-mongering.
This argument fails to take into consideration the unique factual and legal circumstances
which led to the enactment of RA No. 10153. RA No. 10153 was passed in order to
synchronize the ARMM elections with the national and local elections. In the course of
synchronizing the ARMM elections with the national and local elections, Congress had to
grant the President the power to appoint OICs in the ARMM, in light of the fact that: (a)
holdover by the incumbent ARMM elective officials is legally impermissible; and (b)
Congress cannot call for special elections and shorten the terms of elective local officials
for less than three years.
Unlike local officials, as the Constitution does not prescribe a term limit for barangay and
Sangguniang Kabataan officials, there is no legal proscription which prevents these
specific government officials from continuing in a holdover capacity should some exigency
require the postponement of barangay or Sangguniang Kabataan elections. Clearly,
these fears have neither legal nor factual basis to stand on.
For the foregoing reasons, we deny the petitioners' motions for reconsideration.
WHEREFORE, premises considered, we DENY with FINALITY the motions for
reconsideration for lack of merit and UPHOLD the constitutionality of RA No. 10153.
SO ORDERED.
Peralta, Bersamin, Villarama, Jr., Mendoza, Reyes and Perlas-Bernabe, JJ., concur.
Corona, C.J., took no part.
Carpio, J., I reiterate my Dissenting Opinion.
Velasco, Jr., J., I reiterate my Dissenting Opinion.
Leonardo-de Castro, J., I maintain my vote joining the dissent of Justice Velasco.
Del Castillo, * J., is on official leave.
Abad, J., I maintain my dissent.
Perez, J., I join the Dissent of J. Carpio.
Sereno, J., is on leave.
171
||| (Kida v. Senate of the Philippines, G.R. No. 196271, 196305, 197221, 197280, 197282,
197392, 197454 (Resolution), [February 28, 2012], 683 PHIL 198-238)
8. CHAVEZ VS. JBC 676 SCRA 579 (2012)
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 p:
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
Constitution 2 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 AEIDTc
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.:
172
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
I
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. HTacDS
III
173
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.
V
One of the two (2) members of the JBC from Congress has no right (not even 1/2 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 Comment 13 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 Constitution 15 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 cICHTD
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
174
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 CIDTcH
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
175
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. SDHETI
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 cSaADC
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.
176
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:
representative of the private sector. HTScEI
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
177
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' tre 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 EHASaD
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.
178
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. TAcDHS
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. TEcADS
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]
179
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. aDSTIC
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." . . . 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. . . . Thus, 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
180
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. HSTAcI
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 entire
legislative 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 EAISDH
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- -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.
181
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, 57 the Court explained: CEDHTa
The doctrine of operative fact, as an exception to the general rule, only applies as a matter
of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that
the existence of a statute prior to a determination of unconstitutionality is an operative
fact and may have consequences which cannot always be ignored. The past cannot
always be erased by a new judicial declaration.
The doctrine is applicable when a declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law. Thus, it was applied to a criminal
case when a declaration of unconstitutionality would put the accused in double jeopardy
or would put in limbo the acts done by a municipality in reliance upon a law creating it.
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. HIcTDE
This disposition is immediately executory.
SO ORDERED.
Peralta, Bersamin, Villarama, Jr., Perez, Reyes and Perlas-Bernabe, JJ., concur.
Carpio, * J., took no part. I am a nominee to the CJ position.
Velasco, Jr., * J., took no part. I am being considered for nomination by the JBC.
Leonardo-de Castro, * J., took no part. I am one of the incumbent Justices being
considered by the JBC for nomination to CJ position.
Brion, ** J., took no part.
182
Del Castillo, J., I join the dissent of J. Abad.

Abad, J., see my dissenting opinion.
Sereno, L* J., took no part a nominee for CJ.
||| (Chavez v. Judicial and Bar Council, G.R. No. 202242, [July 17, 2012], 691 PHIL 173216)
9. CHAVEZ VS. JBC 696 SCRA 496 (2013)
EN BANC
[G.R. No. 202242. April 16, 2013.]
FRANCISCO I. CHAVEZ, petitioner, vs. JUDICIAL AND BAR COUNCIL, SEN. FRANCIS
JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, JR., respondents.
RESOLUTION
MENDOZA, J p:
This resolves the Motion for Reconsideration 1 filed by the Office of the Solicitor General
(OSG) on behalf of the respondents, Senator Francis Joseph G. Escudero and
Congressman Niel C. Tupas, Jr. (respondents), duly opposed 2 by the petitioner, former
Solicitor General Francisco I. Chavez (petitioner).
By way of recapitulation, the present action stemmed from the unexpected departure of
former Chief Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner,
as his potential successor. In his initiatory pleading, petitioner asked the Court to
determine 1] whether the first paragraph of Section 8, Article VIII of the 1987 Constitution
allows more than one (1) member of Congress to sit in the JBC; and 2] if the practice of
having two (2) representatives from each House of Congress with one (1) vote each is
sanctioned by the Constitution.
On July 17, 2012, the Court handed down the assailed subject decision, disposing the
same in the following manner:
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.
On July 31, 2012, following respondents' motion for reconsideration and with due regard
to Senate Resolution Nos. 111, 3 112, 4 113, 5 and 114, 6 the Court set the subject
motion for oral arguments on August 2, 2012. 7 On August 3, 2012, the Court discussed
the merits of the arguments and agreed, in the meantime, to suspend the effects of the
second paragraph of the dispositive portion of the July 17, 2012 Decision which decreed
that it was immediately executory. The decretal portion of the August 3, 2012 Resolution
8 reads: SDTIaE
183
WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA
within ten (10) days from notice. Until further orders, the Court hereby SUSPENDS the
effect of the second paragraph of the dispositive portion of the Court's July 17, 2012
Decision, which reads: "This disposition is immediately executory." 9
Pursuant to the same resolution, petitioner and respondents filed their respective
memoranda. 10
Brief Statement of the Antecedents
In this disposition, it bears reiterating that from the birth of the Philippine Republic, 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 11 and the 1935
Constitution 12 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. 13
Then, under the 1973 Constitution, 14 with the fusion of the executive and legislative
powers in one body, the appointment of judges and justices ceased to be subject of
scrutiny by another body. The power became exclusive and absolute to the Executive,
subject only to the condition 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 of the evils of
political pressure and partisan activities, 15 the members of the Constitutional
Commission saw it wise 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). The Framers carefully worded Section 8, Article VIII of the 1987
Constitution in this wise: EcDSHT
representative of the private sector.
From the moment of the creation of the JBC, Congress designated one (1) representative
to sit in the JBC to act as one of the ex-officio members. 16 Pursuant to the constitutional
provision that Congress is entitled to one (1) representative, each House sent a
representative to the JBC, not together, but alternately or by rotation.
In 1994, the seven-member composition of the JBC was substantially altered. An eighth
member was added to the JBC as the two (2) representatives from Congress began sitting
simultaneously in the JBC, with each having one-half (1/2) of a vote. 17
In 2001, the JBC En Banc decided to allow the representatives from the Senate and the
House of Representatives one full vote each. 18 It has been the situation since then.
Grounds relied upon by Respondents
Through the subject motion, respondents pray that the Court reconsider its decision and
dismiss the petition on the following grounds: 1] that allowing only one representative from
Congress in the JBC would lead to absurdity considering its bicameral nature; 2] that the
failure of the Framers to make the proper adjustment when there was a shift from
unilateralism to bicameralism was a plain oversight; 3] that two representatives from
184
Congress would not subvert the intention of the Framers to insulate the JBC from political
partisanship; and 4] that the rationale of the Court in declaring a seven-member
composition would provide a solution should there be a stalemate is not exactly correct.
ASaTHc
While the Court may find some sense in the reasoning in amplification of the third and
fourth grounds listed by respondents, still, it finds itself unable to reverse the assailed
decision on the principal issues covered by the first and second grounds for lack of merit.
Significantly, the conclusion arrived at, with respect to the first and second grounds,
carries greater bearing in the final resolution of this case.
As these two issues are interrelated, the Court shall discuss them jointly. ISCHET
Ruling of the Court
The Constitution evinces the direct action of the Filipino people by which the fundamental
powers of government are established, limited and defined and by which those powers
are distributed among the several departments for their safe and useful exercise for the
benefit of the body politic. 19 The Framers reposed their wisdom and vision on one
suprema lex to be the ultimate expression of the principles and the framework upon which
government and society were to operate. Thus, in the interpretation of the constitutional
provisions, the Court firmly relies on the basic postulate that the Framers mean what they
say. The language used in the Constitution must be taken to have been deliberately
chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against
disobedience and defiance. What the Constitution clearly says, according to its text,
compels acceptance and bars modification even by the branch tasked to interpret it.
For this reason, the Court cannot accede to the argument of plain oversight in order to
justify constitutional construction. As stated in the July 17, 2012 Decision, in opting to use
the singular letter "a" to describe "representative of Congress," the Filipino people through
the Framers intended that Congress be entitled to only one (1) seat in the JBC. Had the
intention been otherwise, the Constitution could have, in no uncertain terms, so provided,
as can be read in its other provisions.
A reading of the 1987 Constitution would reveal that several provisions were indeed
adjusted as to be in tune with the shift to bicameralism. One example is Section 4, Article
VII, which provides that a tie in the presidential election shall be broken "by a majority of
all the Members of both Houses of the Congress, voting separately." 20 Another is
Section 8 thereof which requires the nominee to replace the Vice-President to be
confirmed "by a majority of all the Members of both Houses of the Congress, voting
separately." 21 Similarly, under Section 18, the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus may be revoked or continued by
the Congress, voting separately, by a vote of at least a majority of all its Members." 22 In
all these provisions, the bicameral nature of Congress was recognized and, clearly, the
corresponding adjustments were made as to how a matter would be handled and voted
upon by its two Houses. CaSHAc
Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer
inadvertence, to their decision to shift to a bicameral form of the legislature, is not
persuasive enough. Respondents cannot just lean on plain oversight to justify a
conclusion favorable to them. It is very clear that the Framers were not keen on adjusting
the provision on congressional representation in the JBC because it was not in the
exercise of its primary function to legislate. JBC was created to support the executive
power to appoint, and Congress, as one whole body, was merely assigned a contributory
non-legislative function.
185
The underlying reason for such a limited participation can easily be discerned. Congress
has two (2) Houses. The need to recognize the existence and the role of each House is
essential considering that the Constitution employs precise language in laying down the
functions which particular House plays, regardless of whether the two Houses
consummate an official act by voting jointly or separately. Whether in the exercise of its
legislative 23 or its non-legislative functions such as inter alia, the power of appropriation,
24 the declaration of an existence of a state of war, 25 canvassing of electoral returns for
the President and Vice-President, 26 and impeachment, 27 the dichotomy of each House
must be acknowledged and recognized considering the interplay between these two
Houses. In all these instances, 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, as to the
other branches of government.
In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House
of Representatives in the screening and nomination of judicial officers. Rather, in the
creation of the JBC, the Framers arrived at a unique system by adding to the four (4)
regular members, three (3) representatives from the major branches of government
the Chief Justice as ex-officio Chairman (representing the Judicial Department), the
Secretary of Justice (representing the Executive Department), and a representative of the
Congress (representing the Legislative Department). The total is seven (7), not eight. In
so providing, the Framers simply gave recognition to the Legislature, not because it was
in the interest of a certain constituency, but in reverence to it as a major branch of
government. DCSTAH
On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second
District of Maguindanao, submitted his well-considered position 28 to then Chief Justice
Reynato S. Puno:
I humbly reiterate my position that there should be only one representative of Congress
in the JBC in accordance with Article VIII, Section 8 (1) of the 1987 Constitution . . . .
The aforesaid provision is clear and unambiguous and does not need any further
interpretation. Perhaps, it is apt to mention that the oft-repeated doctrine that
"construction and interpretation come only after it has been demonstrated that application
is impossible or inadequate without them."
Further, to allow Congress to have two representatives in the Council, with one vote each,
is to negate the principle of equality among the three branches of government which is
enshrined in the Constitution.
In view of the foregoing, I vote for the proposition that the Council should adopt the rule
of single representation of Congress in the JBC in order to respect and give the right
meaning to the above-quoted provision of the Constitution. (Emphases and underscoring
supplied)
On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC
Consultant, submitted to the Chief Justice and ex-officio JBC Chairman his opinion, 29
which reads: EScAID
8. Two things can be gleaned from the excerpts and citations above: the creation of the
JBC is intended to curtail the influence of politics in Congress in the appointment of
judges, and the understanding is that seven (7) personswill compose the JBC. As such,
the interpretation of two votes for Congress runs counter to the intendment of the framers.
Such interpretation actually gives Congress more influence in the appointment of judges.
Also, two votes for Congress would increase the number of JBC members to eight, which
186
could lead to voting deadlock by reason of even-numbered membership, and a clear

violation of 7 enumerated members in the Constitution. (Emphases and underscoring
supplied)
In an undated position paper, 30 then Secretary of Justice Agnes VST Devanadera
opined:
As can be gleaned from the above constitutional provision, the JBC is composed of seven
(7) representatives coming from different sectors. From the enumeration it is patent that
each category of members pertained to a single individual only. Thus, while we do not
lose sight of the bicameral nature of our legislative department, it is beyond dispute that
Art. VIII, Section 8 (1) of the 1987 Constitution is explicit and specific that "Congress"
shall have only ". . . a representative." Thus, two (2) representatives from Congress would
increase the number of JBC members to eight (8), a number beyond what the Constitution
has contemplated. (Emphases and underscoring supplied)
In this regard, the scholarly dissection on the matter by retired Justice Consuelo YnaresSantiago, a former JBC consultant, is worth reiterating. 31 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." . . . 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. . . . Thus, the JBC was designed to have seven voting members
with the three ex-officio members having equal say in the choice of judicial nominees.
SEHaTC
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 in the
matter of its representative in the JBC. On the other hand, the exercise of legislative and
constituent powers requires the Senate and the 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]
The argument that a senator cannot represent a member of the House of Representatives
in the JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress,
whether from the Senate or the House of Representatives, is constitutionally empowered
to represent the entire Congress. It may be a constricted constitutional authority, but it is
not an absurdity. aSDHCT
187
From this score stems the conclusion that the lone representative of Congress is entitled
to one full vote. This pronouncement effectively disallows the scheme of splitting the said
vote into half (1/2), between two representatives of Congress. Not only can this
unsanctioned practice cause disorder in the voting process, it is clearly against the
essence of what the Constitution authorized. After all, basic and reasonable is the rule
that what cannot be legally done directly cannot be done indirectly. To permit or tolerate
the splitting of one vote into two or more is clearly a constitutional circumvention that
cannot be countenanced by the Court. Succinctly put, when the Constitution envisioned
one member of Congress sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.
It is also an error for respondents to argue that the President, in effect, has more influence
over the JBC simply because all of the regular members of the JBC are his appointees.
The principle of checks and balances is still safeguarded because the appointment of all
the regular members of the JBC is subject to a stringent process of confirmation by the
Commission on Appointments, which is composed of members of Congress.
Respondents' contention that the current irregular composition of the JBC should be
accepted, simply because it was only questioned for the first time through the present
action, deserves scant consideration. Well-settled is the rule that acts done in violation of
the Constitution no matter how frequent, usual or notorious cannot develop or gain
acceptance under the doctrine of estoppel or laches, because once an act is considered
as an infringement of the Constitution it is void from the very beginning and cannot be the
source of any power or authority. EaHcDS
It would not be amiss to point out, however, 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. This rule, however, is not
absolute. Under the doctrine of operative facts, actions previous to the declaration of
unconstitutionality are legally recognized. They are not nullified. This is essential in the
interest of fair play. To reiterate the doctrine enunciated in Planters Products, Inc. v.
Fertiphil Corporation: 32
The doctrine of operative fact, as an exception to the general rule, only applies as a matter
of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that
the existence of a statute prior to a determination of unconstitutionality is an operative
fact and may have consequences which cannot always be ignored. The past cannot
always be erased by a new judicial declaration. The doctrine is applicable when a
declaration of unconstitutionality will impose an undue burden on those who have relied
on the invalid law. Thus, it was applied to a criminal case when a declaration of
unconstitutionality would put the accused in double jeopardy or would put in limbo the
acts done by a municipality in reliance upon a law creating it. 33
Under 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.
Considering that the Court is duty bound to protect the Constitution which was ratified by
the direct action of the Filipino people, it cannot correct what respondents perceive as a
mistake in its mandate. Neither can the Court, in the exercise of its power to interpret the
spirit of the Constitution, read into the law something that is contrary to its express
provisions and justify the same as correcting a perceived inadvertence. To do so would
otherwise sanction the Court action of making amendment to the Constitution through a
judicial pronouncement. IEDaAc
In other words, the Court cannot supply the legislative omission. According to the rule of
casus omissus "a case omitted is to be held as intentionally omitted." 34 "The principle
188
proceeds from a reasonable certainty that a particular person, object or thing has been
omitted from a legislative enumeration." 35 Pursuant to this, "the Court cannot under its
power of interpretation supply the omission even though the omission may have resulted
from inadvertence or because the case in question was not foreseen or contemplated."
36 "The Court cannot supply what it thinks the legislature would have supplied had its
attention been called to the omission, as that would be judicial legislation." 37
Stated differently, the Court has no power to add another member by judicial construction.
The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the
Constitution against usurpation. The Court remains steadfast in confining its powers in
the sphere granted by the Constitution itself. Judicial activism should never be allowed to
become judicial exuberance. 38 In cases like this, no amount of practical logic or
convenience can convince the Court to perform either an excision or an insertion that will
change the manifest intent of the Framers. To broaden the scope of congressional
representation in the JBC is tantamount to the inclusion of a subject matter which was not
included in the provision as enacted. True to its constitutional mandate, the Court cannot
craft and tailor constitutional provisions in order to accommodate all of situations no
matter how ideal or reasonable the proposed solution may sound. To the exercise of this
intrusion, the Court declines.
WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.
SIaHTD
The suspension of the effects of the second paragraph of the dispositive portion of the
July 17, 2012 Decision of the Court, which reads, "This disposition is immediately
executory," is hereby LIFTED.
SO ORDERED.
Carpio, Leonardo-de Castro, Peralta, Bersamin, Villarama, Jr., Perez, Reyes and PerlasBernabe, JJ., concur.
Sereno, C.J., took no part as I am chairperson of JBC.
Velasco, Jr., J., took no part due to participation in JBC.
Brion, J., took no part.
Del Castillo, J., I join the dissent of J. Abad.
Abad, J., see my dissenting opinion.
Leonen, J., see separate dissenting opinion.
||| (Chavez v. Judicial and Bar Council, G.R. No. 202242 (Resolution), [April 16, 2013],
709 PHIL 478-523)
B. Basic Principles on the Fundamental Powers of the State, their characteristics,
similarities and distinctions, and their limitations
C. DUE PROCESS IN GENERAL Article III, Section 1, 1987 Constitution
Annotation on Due Process 627 SCRA 558
ANNOTATION
DUE PROCESS
189
By
ALICIA GONZALEZ-DECANO*
___________________
I.
Preliminary Statement, p. 558
II.
Due Process Defined, p. 559
III. Jurisprudence on Due Process, p. 560
IV.
Illustrative Cases, p. 560
___________________
I. Preliminary Statement
Our countrymen clamor for justice as many of them are deprived of such priceless jewel
of democracy. As we looked around, we see various shocking incidents of life such as:
carefree innocent young children being locked up in jail; bystanders, protesters,
demonstrators, being picked up and ganged up; young boys and girls in school being
kidnapped; women roaming around the cities of Metro Manila, either for the purpose of
looking for odd jobs or wandering just to view the cities of pleasure, money and sins; and
men and women languishing in jail, whose cases have never been terminated due to the
snail pace of justice, without due process.
It is on this scenario that this article is thought of.
Before going into the doctrines or jurisprudence on due process, a definition of term is in
order.
II. Due Process Defined
Due process is a law which hears before it condemns; which proceeds upon inquiry, and
renders judgment only after trial (Raquiza vs. Bradford, 75 Phil. 50, cited by Sibal,
Philippine Legal Encyclopedia, Central Book Supply, Inc., Q.C., 1986, p. 257)
Due process of law does not necessarily mean a judicial proceeding in the regular courts.
The guarantee of due pro-cess, viewed in its procedural aspect, requires no particular
form of procedure. It implies due notice to the individual of the proceedings, an opportunity
to defend himself and the problem of the propriety of the deprivations, under the
circumstances presented, must be resolved in a manner consistent with essential
fairness. It means essentially a fair and imported trust and reasonable opportunity for the
preparation of defense. (Aquino, Jr. vs. Military Commission, No. 2, 63 SCRA 546 [1975],
cited by Sibal, supra)
Procedure is merely means to an end, and rules of procedure must be construed liberally
so as to afford litigants a speedy and inexpensive means of resolving their controversy.
On the other hand, the principle of due process, in general means simply that before a
party may be held bound by court proceedings, he must have been impleaded therein or
notified thereof and thus given an opportunity to defend his rights. (Torres vs. Caluag, 17
SCRA 808 [1966], cited by Sibal, supra)
III. Jurisprudence on Due Process
Due process may be procedural, or may be a denial of the constitutional processes.
Procedural, when the regular rules of law are complied with. Constitutional due process,
when the elements or the material requirements of the Constitution are complied with.
Due process may likewise be criminal due process which requires that the accused must
be proceeded against under the orderly processes of law. There is likewise known due
process in labor cases.
IV. Illustrative Cases
The following cases are illustrative of all these kinds of due process:
1. In the case of Manuel Roxas, et al. vs. Vasquez, G.R. No. 114944, May 29, 2002,
382 SCRA 396, the Supreme Court held:
x x x It appears that petitioners were deprived of due process when the Special
Prosecutor reinstated the complaint against them without their knowledge. Due process
of law requires that every litigant must be given an opportunity to be heard. He has the
right to be present and defend himself in person at every stage of the proceedings. x x x
The Highest Tribunal continued:
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x x x It did not give petitioners notice of the reinvestigation, which would have enabled
them to participate in the proceedings. But when it later found probable cause against
petitioners, it should have first given them notice and afforded them an opportunity to be
heard before ordering their inclusion in Criminal Case No. 18956. The finding of probable
cause against petitioners in proceedings which they had neither knowledge of nor
participation in (sic) violated their right to procedural due process. At the very least, they
should have been notified that the complaint against them has not yet been finally
disposed of; or that the fight was not yet over, so to speak. They should have been
apprised of their possible implication in the criminal case to enable them to meet any new
accusations against them head-on, and to prepare for their defense. x x x
2. People vs. Lacson, G.R. No. 149453, May 28, 2002, 382 SCRA 365, postulates the
doctrine of due process when the Highest Tribunal decreed:
x x x Fundamental fairness requires that both the prosecution and the accused should
be afforded the opportunity to be heard and to adduce evidence on the presence or
absence of the predicate facts upon which the application of the new rule depends. In the
light of the lack of or the conflicting evidence in the various requirements to determine the
applicability of Section 8, Rule 117, this Court is not in a position to rule whether or not
the refiling of the cases for multiple murder against respondent Lacson should be
enjoined. The predicate facts involved disputed facts and arguable questions of law. The
reception of evidence on these various issues cannot be done in this Court but before the
trial court. x x x
3. People vs. Alcalde, G.R. Nos. 139225-28, May 29, 2002, 382 SCRA 621, elucidates
the violation of due process.
Said the Supreme Court:
x x x The constitutional right to be informed of the nature and cause of the accusation
against him under the Bill of Rights carries with it the correlative obligation to effectively
convey to the accused the information to enable him to effectively prepare for his defense.
At the bottom is the issue of fair trial. While not every aberration of the mind or exhibition
of mental deficiency on the part of the accused is sufficient to justify suspension of the
proceedings, the trial court must be fully satisfied that the accused would have a fair trial
with the assistance the law secures or gives. Under the circumstances in these cases,
the trial court gravely failed in this regard. x x x
The Highest Tribunal decreed further:
x x x Even if the zeal of an accuseds lawyer fell short of that required of him, that is, for
him to have asked the court to suspend the arraignment of his client on the ground of the
latters unsound mental health, the greater demand of due process overwhelms such
inadequate zeal. It is also worthy to maintain Atty. Vasquezs apparent lackadaisical
attitude in these cases which amounted to disregard of the strict demand of fidelity to his
oath as a lawyer, duty to his client, and responsibility as an officer of the court. He knew
from the very beginning that Arnel was hospitalized for mental disorder. The latters
strange appearance at his arraignment was enough reason for a counsel to ask for the
deferment of arraignment and for leave of court to have Arnel subjected to psychological
examination and psychiatric evaluation. Then, too, he should have presented the doctor
who treated Arnel in the UST hospital for his recurring mental illness. Irrefutably, Atty.
Vasquezs behavior in the defense of Arnel, fell short of the demanding duty to present
every defense that the law permits to the end that no person may be deprived of life or
liberty but by due process of law. Even if Atty. Vasquezs zeal for Arnels case fell short
of that required of him, that is, for him to have asked the court to suspend the arraignment
of Arnel, on the ground of the latters unsound mental health, the greater demand of due
process overwhelms such inadequate zeal.
4. People vs. Bernas, G.R. Nos. 133583-85, February 20, 2002, 377 SCRA 391,
illustrates the details of due process when an accused pleads guilty to a capital offense
before the court. Due process dictates that the ruling of the Supreme Court in the aboveentitled case should be followed to the latter. The Supreme Court held:
x x x The trial must observe the following rules when an accused desires to plead guilty
to a capital offense: (1) the court must conduct a searching inquiry into the voluntariness
and full compensation of the consequences of the pleas; (2) the court must require the
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prosecution to present evidence to prove the guilt of the accused and the precise degree
of his culpability; and (3) The court must ask the accused if he desires to present evidence
in his behalf and allow him to do so if he desires.
The Supreme Court continued to explain the meaning of Searching Inquiry and how it is
done:
x x x Searching Inquiry should be conducted as follows: (1) ascertain from the accused
himself (a) how he was brought into the custody of the law; (b) whether he had the
assistance of a competent inadequate zeal. It is also worthy to maintain Atty. Vasquezs
apparent lackadaisical attitude in these cases which amounted to disregard of the strict
demand of fidelity to his oath as a lawyer, duty to his client, and responsibility as an officer
of the court. He knew from the very beginning that Arnel was hospitalized for mental
disorder. The latters strange appearance at his arraignment was enough reason for a
counsel to ask for the deferment of arraignment and for leave of court to have Arnel
subjected to psychological examination and psychiatric evaluation. Then, too, he should
have presented the doctor who treated Arnel in the UST hospital for his recurring mental
illness. Irrefutably, Atty. Vasquezs behavior in the defense of Arnel, fell short of the
demanding duty to present every defense that the law permits to the end that no person
may be deprived of life or liberty but by due process of law. Even if Atty. Vasquezs zeal
for Arnels case fell short of that required of him, that is, for him to have asked the court
to suspend the arraignment of Arnel, on the ground of the latters unsound mental health,
the greater demand of due process overwhelms such inadequate zeal.
4. People vs. Bernas, G.R. Nos. 133583-85, February 20, 2002, 377 SCRA 391,
illustrates the details of due process when an accused pleads guilty to a capital offense
before the court. Due process dictates that the ruling of the Supreme Court in the aboveentitled case should be followed to the latter. The Supreme Court held:
x x x The trial must observe the following rules when an accused desires to plead guilty
to a capital offense: (1) the court must conduct a searching inquiry into the voluntariness
and full compensation of the consequences of the pleas; (2) the court must require the
prosecution to present evidence to prove the guilt of the accused and the precise degree
of his culpability; and (3) The court must ask the accused if he desires to present evidence
in his behalf and allow him to do so if he desires.
The Supreme Court continued to explain the meaning of Searching Inquiry and how it is
done:
x x x Searching Inquiry should be conducted as follows: (1) ascertain from the accused
himself (a) how he was brought into the custody of the law; (b) whether he had the
assistance of a competent x x x In fulfillment of the aforesaid constitutional guarantee,
Rule 116, Section 1(a) of the Rules of Court mandates that an accused be arraigned in
open court and asked to enter a plea of guilty or not guilty of the crime charged. The
purpose of arraignment is to apprise the accused of the possible loss of freedom, even of
his life, depending on the nature of the crime imputed to him, or at the very least to inform
him of why the prosecuting arm of the state is mobilized against him. Consequently, when
accused-appelant entered a negative plea during his arraignment, the same was not
binding on the court as an indication of his innocence. Rather, it is a general denial of the
charges impugned against him and an exercise of his right to be heard of his plea. x x x
6. People vs. Dumalahay, G.R. Nos. 131837-38, April 2, 2002, 380 SCRA 37, speaks
of due process as followed in the taking of extrajudicial confessors and the invoking of
the Miranda doctrine.
x x x Where it is shown that extrajudicial confessions were given with all the safeguards
required under the Miranda Doctrine, the admissible in evidence. The sworn statements
of the three accused show that they were properly apprised of their right to remain silent
and right to counsel, in accordance with the constitutional guarantee. At 8:00 in the
morning of the next day, the three accused proceeded to the office of Atty. Rexel
Pacuribot, Clerk of Court of the Regional Trial Court of Cagayan de Oro City. All of the
three accused, still accompanied by Atty. Ubay-ubay, subscribed and swore to their
respective written confessions. Before administering the oaths, Atty. Pacuribot reminded
the three accused of the constitutional rights under the Miranda Doctrine and verified that
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their statements were voluntarily given. Atty. Pacuribot also translated the contents of
each confession in the Visayan dialect, to ensure that each accused understood the same
before signing it. No ill-motive was imputed on these two lawyers to testify falsely against
the accused. Their participation in these cases merely involved the performance of their
legal duties as officers of the court. x x x More importantly, the confessions are replete
with details which could only be supplied by the accused, reflecting spontaneity and
coherence which psychologically can not be associated with a mood to which violence
and torture have been applied. These factors are clear indicia that the confessions were
voluntarily given. x x x
7. People vs. Orbita, G.R. No. 136591, July 11, 2002, 384 SCRA 393, speaks of due
process. In more specific terms, the Supreme Court expounded:
x x x The accused can not complain that he was denied due process when the trial court
convicted him of raping the complainant, a mental retardate, under an information that
did not allege her mental state, where he had notice that the prosecution would prove that
the complainant had a mental age of a child below ten (10) and was given all the
opportunity to meet the evidence of the prosecution on the issue. He could not say he
was taken by surprise and was not able to defend himself. Indeed, he has never taken
this posture.
x x x
8. Philippine Airlines, Inc. vs. NLRC (4th Division), G.R. No. 115785, August 4, 2000,
337 SCRA 286, explains Constitutional due process in this wise:
x x x The essence of due process is simply an opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain ones sidewith respect to the
procedural aspect of private respondents dismissal, he was given ample opportunity to
present his side and to defend himself against the charges against him. He had every
opportunity to be heard. x x x The fact that respondent Diamante was not able to confront
Pineda did not mean that he was deprived of his right to due process. x x x
9. Romualdez vs. Sandiganbayan, G.R. Nos. 143618-41, May 30, 2002, 385 SCRA 436
deals with Criminal due pro-cess.
The Supreme Court postulated:
x x x Criminal due process requires that the accused must be proceeded against under
the orderly processes of law. In all criminal cases, the judge should follow the step-bystep procedure required by the Rules. The reason for this is to assure that the state makes
no mistake in taking the life or liberty except that of the guilty. x x x
10. Gerken vs. Quintos, A.M. No. MTJ-02-1441, July 31, 2002, 386 SCRA 520,
discusses right to Bail and Preliminary Investigation. The Supreme Court decreed:
x x x Respondent Judge, possibly through ignorance, disregarded the procedure for
preliminary investigation as provided in Rule 112, Section 3 of the Revised Rules of
Criminal Procedure and thereby deprived complainants of their right to due process. x x
x
The Supreme Court further mentioned:
x x x The right to preliminary investigation is a substantive right, a denial of which
constitutes a deprivation of the accuseds right to due process, and such denial is
aggravated where the accused is detained without bail for his provisional liberty. It is
important that those charged with the duty of conducting preliminary investigations do so
scrupulously in accordance with the procedure provided in the Revised Rules of Criminal
Procedure. x x x
11. Government of the United States of America vs. Purganan, G.R. No. 148571,
October 14, 2002, 389 SCRA 623, explains among others, the meaning of due process.
The Supreme Court articulated:
x x x The detention of a potential extraditee prior to the conclusion of the extradition
proceedings does not amount to a violation of his right to due processwhile the essence
of due process is the opportunity to be heard, it does not always call for a prior opportunity
to be heardcontrary to his intention, his detention prior to the conclusion of the
extradition proceedings does not amount to a violation of his right to due process. We
iterate the familiar doctrine that the essence of due process is the opportunity to be heard
but, at the same time, point out that the doctrine does not call for a prior opportunity to be
193
heard. Where the circumstancessuch as those present in an extradition casecall for

it, a subsequent opportunity to be heard is enough. In the present case, respondent will
be given full opportunity to be heard subsequently, when the extradition court hears the
Petition for Extradition. Hence, there is no violation of his right to due process and
fundamental fairness. x x x
12. Mariveles Shipping Corp. vs. Court of Appeals, G.R. No. 144134, November 11,
2003, 415 SCRA 573, speaks among others of due process. The Supreme Court
expounded:
x x x The essence of due process is simply an opportunity to be heard, or, as applied to
administrative proceedings, an opportunity to explain ones side or an opportunity to seek
a reconsideration of the action or ruling complained of. The requirement of the due
process in labor cases before a Labor Arbiter is satisfied when the parties are given the
opportunity to submit their position papers to which they are supposed to attach all the
supporting documents or documentary evidence that would prove their respective claims,
in the event the Labor Arbiter determines that no formal hearing would be conducted or
that such hearing was not necessary. Not all cases require a trial type hearing. In any
event, as found by the NLRC, petitioner was given ample opportunity to present its side
in several hearings conducted before the Labor Arbiter and in the position papers and
other supporting documents that it had submitted, We find that such opportunity more
than satisfies the requirement of due process in labor cases. x x x
13. Allied Banking Corporation vs. Court of Appeals, G.R. No. 144412, November 18,
2003, 416 SCRA 65, discusses among others, due process in labor cases.
x x x The essence of due process is simply an opportunity to be heard. On the
requirement of hearing, this court has held that the essence of due process is simply an
opportunity to be heard. An actual hearing is not necessary. The exchange of several
letters, in which Galanidas wife, a lawyer with the City Prosecutors Office, assisted him,
gave Galanida an opportunity to respond to the charges against him. x x x
14. Republic vs. Sandiganbayan, G.R. No. 152454, November 18, 2003, 416 SCRA
133, speaks of the two aspects of due process. The Supreme Court expounded:
x x x Due process of law has two aspects: substantive and procedural due process. In
order that a particular act may not be impugned as violative of due process clause, there
must be compliance with both substantive and the procedural requirements thereof.
In the present context, substantive due process refers to the intrinsic validity of a law that
interfere with the right of a person to his property. On the other hand, procedural due
process means compliance with the procedure or steps, even periods, prescribed by the
statute in conformity with the standards of fair play and without arbitrariness on the part
of those who are called upon to administer it.
Insofar as substantive due process is concerned, there is no showing that R.A. 1379 is
unfair, unreasonable, or unjust. In other words, respondent Marcoses are not being
deprived of their property through forfeiture for arbitrary reasons on or flimsy grounds. x
x x
A careful study of the Provision of R.A. 1379 readily discloses that the forfeiture
proceedings in the Sandiganbayan did not violate the substantive rights of respondent
Marcoses. These processes are civil in nature, not criminal as contended by the
Marcoses.
The Supreme Court continued:
x x x Due process, a constitutional precept, does not therefore always and in all situations
require a trial type proceeding. The essence of due process is found in the reasonable
opportunity to be heard and submit ones evidence in support of his defense. What the
law prohibits is not merely the absence of a provisions notice but the absence thereof and
the lack of opportunity to be heard. This opportunity was made completely available to
respondents who participated in all stages of the litigation. x x x
o0o
Procedural and Substantive
Publication of Laws TAADA RULINGS, E.O. 200
194
TAADA VS. TUVERA (1985)

EN BANC
[G.R. No. 63915. April 24, 1985.]
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI],
petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the
President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the
President, MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang
Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.
Lorenzo M. Taada, Abraham F. Sarmiento, Mabini Legal Aid Committee for petitioners
Solicitor General for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE;
LEGAL PERSONALITY OF PETITIONERS TO FILE MANDAMUS TO COMPEL
PUBLICATION, RECOGNIZED. The subject of the petition is to compel the
performance of a public duty and petitioners maintain they need not show any specific
interest for their petition to be given due course. The right sought to be enforced by
petitioners is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to
conceive of any other person to initiate the same, considering that the Solicitor General,
the government officer generally empowered to represent the people, has entered his
appearance for respondents in this case.
2. ID.; ID.; ID.; ARTICLE 2 CIVIL CODE DOES NOT PRECLUDE PUBLICATION IN THE
OFFICIAL GAZETTE EVEN IF THE LAW ITSELF PROVIDES FOR DATE OF ITS
EFFECTIVITY. That publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own
effectivity dates is correct only insofar as it equates the effectivity of laws with the fact of
publication. Considered in the light of other statutes applicable to the issue at hand, the
conclusion is easily reached that said Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law itself provides for the date of its
effectivity.
3. ID.; ID.; ID.; RATIONALE. The clear object of Article 2 of the Civil Code is to give
the general public adequate notice of the various laws which are to regulate their actions
and conduct as citizens. Without such notice and publication, there would be no basis for
the application of the maxim "ignorantia legis non excusat." It would be the height of
injustice to punish or otherwise burden a citizen for the transgression of a law of which he
had no notice whatsoever, not even a constructive one.
4. ID.; ID.; ID.; PUBLICATION OF PRESIDENTIAL ISSUANCES "OF A PUBLIC
NATURE" OR "OF GENERAL APPLICABILITY," A REQUIREMENT OF DUE
PROCESS; UNPUBLISHED PRESIDENTIAL ISSUANCES WITHOUT FORCE AND
EFFECT. The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that provide for fines,
forfeitures or penalties for their violation or otherwise impose a burden on the people,
such as tax and revenue measures, fall within this category. Other presidential issuances
which apply only to particular persons such as administrative and executive orders need
195
not be published on the assumption that they have been circularized to all concerned.
(People vs. Que Po Lay, 94 Phil. 640; Balbuena, et al. vs. Secretary of Education, et al.,
110 Phil. 150) It is needless to add that the publication of presidential issuances "of a
public nature" or "of general applicability" is a requirement of due process. It is a rule of
law that before a person may be bound by law, he must first be officially and specifically
informed of its contents. The Court therefore declares that presidential issuances of
general application, which have not been published, shall have no force and effect.
5. ID.; ID.; ID.; DECLARATION OF INVALIDITY OF UNPUBLISHED PRESIDENTIAL
DECREES DOES NOT AFFECT THOSE WHICH HAVE BEEN ENFORCED OR
IMPLEMENTED PRIOR TO THEIR PUBLICATION. The implementation/enforcement
of presidential decrees prior to their publication in the Official Gazette is "an operative fact
which may have consequences which cannot be justly ignored. The past cannot always
be erased by a new judicial declaration . . .that an all inclusive statement of a principle of
absolute retroactive invalidity cannot be justified."
FERNANDO, C.J., concurring with qualification:
1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION REQUIREMENT NEED NOT
BE CONFINED TO THE OFFICIAL GAZETTE. It is of course true that without the
requisite publication, a due process question would arise if made to apply adversely to a
party who is not even aware of the existence of any legislative or executive act having the
force and effect of law. But such publication required need not be confined to the Official
Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces
to certainty. That is to be admitted. It does not follow, however, that failure to do so would
in all cases and under all circumstances result in a statute, presidential decree, or any
other executive act of the same category being bereft of any binding force and effect. To
so hold would raise a constitutional question. Such a pronouncement would lend itself to
the interpretation that such a legislative or presidential act is bereft of the attribute of
effectivity unless published in the Official Gazette. There is no such requirement in the
Constitution.
2. ID.; ID.; ID.; ID.; REQUIREMENT IN ART. 2 CIVIL CODE DOES NOT HAVE THE
JUDICIAL FORCE OF A CONSTITUTIONAL COMMAND. The Chief Justice's qualified
concurrence goes no further than to affirm that publication is essential to the effectivity of
a legislative or executive act of a general application. He is not in agreement with the view
that such publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this exception, "unless
it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional
command. A later legislative or executive act which has the force and effect of law can
legally provide for a different rule.
3. ID.; ID.; ID.; TO DECLARE UNPUBLISHED PRESIDENTIAL ISSUANCES WITHOUT
LEGAL FORCE AND EFFECT WOULD RESULT IN UNDESIRABLE CONSEQUENCES.
Nor does the Chief Justice agree with the rather sweeping conclusion in the opinion of
Justice Escolin that presidential decrees and executive acts not thus previously published
in the Official Gazette would be devoid of any legal character. That would be, in his
opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences.
He finds himself therefore unable to yield assent to such a pronouncement.
TEEHANKEE, J., concurring:
1. CONSTITUTIONAL LAW; STATUTES, PUBLICATION IN THE OFFICIAL GAZETTE;
NECESSARY PURSUANT TO THE BASIC CONSTITUTIONAL REQUIREMENTS OF
DUE PROCESS. The Rule of Law connotes a body of norms and laws published and
196
ascertainable and of equal application to all similarly circumstanced and not subject to
arbitrary change but only under certain set procedure. The Court had consistently
stressed that "it is an elementary rule of fair play and justice that a reasonable opportunity
to be informed must be afforded to the people who are commanded to obey before they
can be punished for its violation," (People vs. de Dios, G.R. No. L-11003, August 31,
1959, per the late Chief Justice Paras) citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents. especially its
penal provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties." Without official
publication in the Official Gazette as required by Article 2 of the Civil Code and Revised
Administrative Code, there would be no basis nor justification for the corollary rule of
Article 3 of the Civil Code (based on constructive notice that the provisions of the law are
ascertainable from the public and official repository where they are duly published) that
"Ignorance of the law excuses no one from compliance therewith."
2. ID.; ID.; ID.; RESPONDENTS' CONTENTION THAT "ONLY LAWS WHICH ARE
SILENT AS TO THEIR EFFECTIVITY DATE NEED TO BE PUBLISHED IN THE
OFFICIAL GAZETTE FOR THEIR EFFECTIVITY," UNTENABLE. The plain text and
meaning of the Civil Code is that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided," i.e.
a different effectivity date is provided by the law itself. This proviso perforce refers to a
law that had been duly published pursuant to the basic constitutional requirements of due
process. The best example of this is the Civil Code itself: the same Article 2 provides
otherwise that it "shall take effect (only) one year (not 15 days) after such publication." To
sustain respondents misreading that "most laws or decrees specify the date of their
effectivity and for this reason, publication in the Official Gazette is not necessary for their
effectivity" would be to nullify and render nugatory the Civil Code's indispensable and
essential requirement of prior publication in the Official Gazette by the simple expedient
of providing for immediate effectivity or an earlier effectivity date in the law itself before
the completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE;
RETROACTIVITY IN EFFECTIVITY DATE NOT ALLOWED WHERE IT WILL RUN
COUNTER TO CONSTITUTIONAL RIGHTS OR DESTROY VESTED RIGHTS. There
cannot be any question but that even if a decree provides for a date of effectivity, it has
to be published. When a date effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the Official Gazette, it will
not mean that the decree can have retroactive effect to the date of effectivity mentioned
in the decree itself. There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.
PLANA, J., separate opinion:

1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE
NOT ESSENTIAL FOR EFFECTIVITY FOR EFFECTIVITY OF LAWS. The Philippine
Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound thereby; but
such notice is not necessarily by publication in the Official Gazette. The due process
clause is not that precise. Neither is the publication in the Official Gazette required by any
statute as a prerequisite for their effectivity, if said laws already provide for their effectivity
date.
197
2. ID.; ID.; PUBLICATION MAY BE MADE ELSEWHERE THAN IN THE OFFICIAL

GAZETTE. Article 2 of the Civil Code provides that "laws shall take effect after fifteen
days following the completion of their publication in the Official Gazette, unless it is
otherwise provided." Two things may be said of this provision: Firstly, it obviously does
not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly
recognizes that each law may provide not only a different period for reckoning its
effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall
be published elsewhere than in the Official Gazette.
3. ID.; ID.; COMMONWEALTH ACT 638 CANNOT NULLIFY OR RESTRICT
OPERATION OF A STATUTE WITH A PROVISION AS TO ITS EFFECTIVITY. Not all
legislative acts are required to be published in the Official Gazette but only "important"
ones "of a public nature." Moreover, Commonwealth Act No. 638 does not provide that
publication in the Official Gazette is essential for the effectivity of laws. This is as it should
be, for all statutes are equal and stand on the same footing. A law, especially an earlier
one of general application such as Commonwealth Act No. 638, cannot nullify or restrict
the operation of a subsequent statute that has a provision of its own as to when and how
it will take effect. Only a higher law, which is the Constitution, can assume the role.
DECISION
ESCOLIN, J p:
Invoking the people's right to be informed on matters of public concern, a right recognized
in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that
laws to be valid and enforceable must be published in the Official Gazette or otherwise
effectively promulgated, petitioners seek a writ of mandamus to compel respondent public
officials to publish, and or cause the publication in the Official Gazette of various
presidential decrees, letters of instructions, general orders, proclamations, executive
orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234,
265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415,
427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644,
658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 10601061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808,
1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155,
161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228,
231-239, 241-245, 248-251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293,
297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382,
385, 386, 396-397, 405, 438-440, 444-445, 473, 486, 488, 498, 501, 399, 527, 561, 576,
587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837839, 878-879, 881, 882, 939-940, 964, 997, 1149-1178, 1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 16061609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 17371742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 18021804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 18391840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889,
198
1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 20302044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457-471, 474-492, 494-507, 509510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570,
574, 593, 594, 598-604, 609, 611-647, 649-677, 679-703, 705-707, 712-786, 788-852,
854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92,
94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360-378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright
on the ground that petitioners have no legal personality or standing to bring the instant
petition. The view is submitted that in the absence of any showing that petitioners are
personally and directly affected or prejudiced by the alleged non-publication of the
presidential issuances in question 2 said petitioners are without the requisite legal
personality to institute this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote: Cdpr
"SEC. 3. Petition for Mandamus. When any tribunal, corporation, board or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court alleging the facts with certainty and praying
that judgment be rendered commanding the defendant, immediately or at some other
specified time, to do the act required to be done to protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful acts of the
defendant."
Upon the other hand, petitioners maintain that since the subject of the petition concerns
a public right and its object is to compel the performance of a public duty, they need not
show any specific interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs.
Governor General, 3 this Court held that while the general rule is that "a writ of mandamus
would be granted to a private individual only in those cases where he has some private
or particular interest to be subserved, or some particular right to be protected,
independent of that which he holds with the public at large," and "it is for the public officers
exclusively to apply for the writ when public rights are to be subserved [Mithchell vs.
Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the
object of the mandamus is to procure the enforcement of a public duty, the people are
regarded as the real party in interest and the relator at whose instigation the proceedings
are instituted need not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the execution of the laws
[High, Extraordinary Legal Remedies, 3rd ed., sec. 431]."
Thus, in said case, this Court recognized the relator Lope Severino, a private individual,
as a proper party to the mandamus proceedings brought to compel the Governor General
to call a special election for the position of municipal president in the town of Silay, Negros
Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said: Cdpr
"We are therefore of the opinion that the weight of authority supports the proposition that
the relator is a proper party to proceedings of this character when a public right is sought
to be enforced. If the general rule in America were otherwise, we think that it would not
199
be applicable to the case at bar for the reason 'that it is always dangerous to apply a
general rule to a particular case without keeping in mind the reason for the rule, because,
if under the particular circumstances the reason for the rule does not exist, the rule itself
is not applicable and reliance upon the rule may well lead to error.'
"No reason exists in the case at bar for applying the general rule insisted upon by counsel
for the respondent. The circumstances which surround this case are different from those
in the United States, inasmuch as if the relator is not a proper party to these proceedings
no other person could be, as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of this character."
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to
be enforced by petitioners herein is a public right recognized by no less than the
fundamental law of the land. If petitioners were not allowed to institute this proceeding, it
would indeed be difficult to conceive of any other person to initiate the same, considering
that the Solicitor General, the government officer generally empowered to represent the
people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own
effectivity dates. It is thus submitted that since the presidential issuances in question
contain special provisions as to the date they are to take effect, publication in the Official
Gazette is not indispensable for their effectivity. The point stressed is anchored on Article
2 of the Civil Code:
"Art. 2. Laws shall take effect after fifteen days following the completion of their publication
in the Official Gazette, unless it is otherwise provided, . . ."
The interpretation given by respondent is in accord with this Court's construction of said
article. In a long line of decisions, 4 this Court has ruled that publication in the Official
Gazette is necessary in those cases where the legislation itself does not provide for its
effectivity date for then the date of publication is material for determining its date of
effectivity, which is the fifteenth day following its publication but not when the law itself
provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the
effectivity of laws with the fact of publication. Considered in the light of other statutes
applicable to the issue at hand, the conclusion is easily reached that said Article 2 does
not preclude the requirement of publication in the Official Gazette, even if the law itself
provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides
as follows:
"Section 1. There shall be published in the Official Gazette [1] all important legislative acts
and resolutions of a public nature of the Congress of the Philippines; [2] all executive and
administrative orders and proclamations, except such as have no general applicability;
[3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as
may be deemed by said courts of sufficient importance to be so published; [4] such
documents or classes of documents as may be required so to be published by law; and
[5] such documents or classes of documents as the President of the Philippines shall
determine from time to time to have general applicability and legal effect, or which he may
authorize so to be published. . . ."
The clear object of the above quoted provision is to give the general public adequate
notice of the various laws which are to regulate their actions and conduct as citizens.
200
Without such notice and publication, there would be no basis for the application of the
maxim "ignorantia legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he had no notice
whatsoever, not even a constructive one. cdphil
Perhaps at no time since the establishment of the Philippine Republic has the publication
of laws taken so vital significance that at this time when the people have bestowed upon
the President a power heretofore enjoyed solely by the legislature. While the people are
kept abreast by the mass media of the debates and deliberations in the Batasan
Pambansa and for the diligent ones, ready access to the legislative records no such
publicity accompanies the law-making process of the President. Thus, without publication,
the people have no means of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves of the specific contents
and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion
genrica de leyes, se comprenden tambin los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por
el Gobierno en uso de su potestad." 5
The very first clause of Section 1 of Commonwealth Act 638 reads: "There shall be
published in the Official Gazette . . ." The word "shall" used therein imposes upon
respondent officials an imperative duty. That duty must be enforced if the Constitutional
right of the people to be informed on matters of public concern is to be given substance
and reality. The law itself makes a list of what should be published in the official Gazette.
Such listing, to our mind, leaves respondents with no discretion whatsoever as to what
must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that provide for fines,
forfeitures or penalties for their violation or otherwise impose a burden on the people,
such as tax and revenue measures, fall within this category. Other presidential issuances
which apply only to particular persons or class of persons such as administrative and
executive orders need not be published on the assumption that they have been
circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or
"of general applicability" is a requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and specifically informed of its
contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7 :
"In a time of proliferating decrees, orders and letters of instructions which all form part of
the law of the land, the requirement of due process and the Rule of Law demand that the
Official Gazette as the official government repository promulgate and publish the texts of
all such decrees, orders and instructions so that the people may know where to obtain
their official and specific contents."
The Court therefore declares that presidential issuances of general application, which
have not been published, shall have no force and effect. Some members of the Court,
quite apprehensive about the possible unsettling effect this decision might have on acts
done in reliance of the validity of those presidential decrees which were published only
during the pendency of this petition, have put the question as to whether the Court's
declaration of invalidity apply to P.D.s which had been enforced or implemented prior to
their publication. The answer is all too familiar. In similar situations in the past this Court
had taken the pragmatic and realistic course set forth in Chicot County Drainage District
vs. Baxter Bank 8 to wit: LLjur
"The courts below have proceeded on the theory that the Act of Congress, having been
found to be unconstitutional, was not a law; that it was inoperative, conferring no rights
201
and imposing no duties, and hence affording no basis for the challenged decree. Norton
v. Shelby County, 118 U.S. 425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U.S. 559,
566. It is quite clear, however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a
new judicial declaration. The effect of the subsequent ruling as to invalidity may have to
be considered in various aspects with respect to particular conduct, private and official.
Questions of rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged the attention of
courts, state and federal, and it is manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified."
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the
right of a party under the Moratorium Law, albeit said right had accrued in his favor before
said law was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their
publication in the Official Gazette is "an operative fact which may have consequences
which cannot be justly ignored. The past cannot always be erased by a new judicial
declaration . . . that an all-inclusive statement of a principle of absolute retroactive
invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the
presidential decrees sought by petitioners to be published in the Official Gazette, only
Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive,
have not been so published. 10 Neither the subject matters nor the texts of these PDs
can be ascertained since no copies thereof are available. But whatever their subject
matter may be, it is undisputed that none of these unpublished PDs has ever been
implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court,
through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public
of the contents of [penal] regulations and make the said penalties binding on the persons
affected thereby." The cogency of this holding is apparently recognized by respondent
officials considering the manifestation in their comment that "the government, as a matter
of policy, refrains from prosecuting violations of criminal laws until the same shall have
been published in the Official Gazette or in some other publication, even though some
criminal laws provide that they shall take effect immediately."
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so
published, they shall have no binding force and effect.
SO ORDERED.
Relova, J., concur.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
Gutierrez, Jr., J., I concur insofar as publication is necessary but reserve my vote as to
the necessity of such publication being in the Official Gazette.
De la Fuente, J., Insofar as the opinion declares the unpublished decrees and issuances
of a public nature or general applicability ineffective, until due publication thereof.
202
||| (Taada v. Tuvera, G.R. No. 63915, [April 24, 1985], 220 PHIL 422-444)
TAADA VS. TUVERA (1986)
EN BANC
[G.R. No. L-63915. December 29, 1986.]
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI),
petitioners, vs. HON. JUAN C. TUVERA. in his capacity as Executive Assistant to the
President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the
President, MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents.
SYLLABUS
FERNAN, J., concurring:
1.CIVIL LAW; EFFECT AND APPLICATION OF LAWS; ARTICLE 2, CIVIL CODE;
PUBLICATION OF LAWS MADE TO ENSURE CONSTITUTIONAL RIGHT TO DUE
PROCESS AND TO INFORMATION. The categorical statement by this Court on the
need for publication before any law be made effective seeks to prevent abuses on the
part if the lawmakers and, at the time, ensure to the people their constitutional right to
due process and to information on matter of public concern. cda
RESOLUTION
CRUZ, J p:
Due process was invoked by the petitioners in demanding the disclosure or a number of
presidential decrees which they claimed had not been published as required by law. The
government argued that while publication was necessary as a rule, it was not so when it
was "otherwise provided," as when the decrees themselves declared that they were to
become effective immediately upon their approval. In the decision of this case on April
24, 1985, the Court affirmed the necessity for the publication of some of these decrees,
declaring in the dispositive portion as follows:
"WHEREFORE, the Court hereby orders respondents to publish to the Official Gazette
all unpublished presidential issuances which are of general application, and unless so
published, they shall have no binding force and effect."
The petitioners are now before us again, this time to move for reconsideration/clarification
of that decision. 1 Specifically, they ask the following questions:
1.What is meant by "law of public nature" or "general applicability"?
2.Must a distinction be made between laws of general applicability and laws which are
not?
3.What is meant by "publication"?
4.Where is the publication to be made?
5.When is the publication to be made?
203
Resolving their own doubts, the petitioners suggest that there should be no distinction
between laws of general applicability and those which are not; that publication means
complete publication; and that the publication must be made forthwith in the Official
Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed first that the motion
was a request for an advisory opinion and should therefore be dismissed, and, on the
merits, that the clause "unless it is otherwise provided" in Article 2 of the Civil Code meant
that the publication required therein was not always imperative; that publication, when
necessary, did not have to be made in the Official Gazette; and that in any case the
subject decision was concurred in only by three justices and consequently not binding.
This elicited a Reply 4 refuting these arguments. Came next the February Revolution and
the Court required the new Solicitor General to file a Rejoinder in view of the supervening
events, under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that
issuances intended only for the interval administration of a government agency or for
particular persons did not have to be published; that publication when necessary must be
in full and in the Official Gazette; and that, however, the decision under reconsideration
was not binding because it was not supported by eight members of this Court. 5
The subject of contention is Article 2 of the Civil Code providing as follows:
"ART. 2.Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. This Code shall take
effect one year after such publication."
After a careful study of this provision and of the arguments of the parties, both on the
original petition and on the instant motion, we have come to the conclusion, and so hold,
that the clause "unless it is otherwise provided" refers to the date of effectivity and not to
the requirement of publication itself, which cannot in any event be omitted. This clause
does not mean that the legislature may make the law effective immediately upon
approval, or on any other date, without its previous publication. cdphil
Publication is indispensable in every case, but the legislature may in its discretion provide
that the usual fifteen-day period shall be shortened or extended. An example, as pointed
out by the present Chief Justice in his separate concurrence in the original decision, 6 is
the Civil Code which did not become effective after fifteen days from its publication in the
Official Gazette but "one year after such publication." The general rule did not apply
because it was "otherwise provided."
It is not correct to say that under the disputed clause publication may be dispensed with
altogether. The reason is that such omission would offend due process insofar as it would
deny the public knowledge of the laws that are supposed to govern it. Surely, if the
legislature could validly provide that a law shall become effective immediately upon its
approval notwithstanding the lack of publication (or after an unreasonably short period
after publication), it is not unlikely that persons not aware of it would be prejudiced as a
result; and they would be so not because of a failure to comply with it but simply because
they did not know of its existence. Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal measures, like a law on
prescription, which must also be communicated to the persons they may affect before
they can begin to operate. LexLib
We note at this point the conclusive presumption that every person knows the law, which
of course presupposes that the law has been published if the presumption is to have any
legal justification at all. It is no less important to remember that Section 6 of the Bill of
Rights recognizes "the right of the people to information on matters of public concern,"
and this certainly applies to, among others, and indeed especially, the legislative
enactments of the government.
204
The term "laws" should refer to all laws and not only to those of general application, for
strictly speaking all laws relate to the people in general albeit there are some that do not
apply to them directly. An example is a law granting citizenship to a particular individual,
like a relative of President Marcos who was decreed instant naturalization. It surely cannot
be said that such a law does not affect the public although it unquestionably does not
apply directly to all the people. The subject of such law is a matter of public interest which
any member of the body politic may question in the political forums or, if he is a proper
party, even in the courts of justice. In fact, a law without any bearing on the public would
be invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the
legislature. To be valid, the law must invariably affect the public interest even if it might
be directly applicable only to one individual, or some of the people only, and not to the
public as a whole.
We hold therefore that all statutes, including those of local application and private laws,
shall be published as a condition for their effectivity, which shall begin fifteen days after
publication unless a different effectivity date is fixed by the legislature. LibLex
Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated
by the legislature or, at present, directly conferred by the Constitution. Administrative rules
and regulations must also be published if their purpose is to enforce or implement existing
law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither
is publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties. cdasia
Accordingly, even the charter of a city must be published notwithstanding that it applies
to only a portion of the national territory and directly affects only the inhabitants of that
place. All presidential decrees must be published, including even, say, those naming a
public place after a favored individual or exempting him from certain prohibitions or
requirements. The circulars issued by the Monetary Board must be published if they are
meant not merely to interpret but to "fill in the details" of the Central Bank Act which that
body is supposed to enforce.
However, no publication is required of the instructions issued by, say, the Minister of
Social Welfare on the case studies to be made in petitions for adoption or the rules laid
down by the head of a government agency on the assignments or workload of his
personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are not
covered by this rule but by the Local Government Code.
We agree that the publication must be in full or it is no publication at all since its purpose
is to inform the public of the contents of the laws. As correctly pointed out by the
petitioners, the mere mention of the number of the presidential decree, the title of such
decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity,
and in a mere supplement of the Official Gazette cannot satisfy the publication
requirement. This is not even substantial compliance. This was the manner, incidentally,
in which the General Appropriations Act for FY 1975, a presidential decree undeniably of
general applicability and interest, was "published" by the Marcos administration. 7 The
evident purpose was to withhold rather than disclose information on this vital law.
205
Coming now to the original decision, it is true that only four justices were categorically for
publication in the Official Gazette 8 and that six others felt that publication could be made
elsewhere as long as the people were sufficiently informed. 9 One reserved his vote 10
and another merely acknowledged the need for due publication without indicating where
it should be made. 11 It is therefore necessary for the present membership of this Court
to arrive at a clear consensus on this matter and to lay down a binding decision supported
by the necessary vote.
There is much to be said of the view that the publication need not be made in the Official
Gazette, considering its erratic releases and limited readership. Undoubtedly,
newspapers of general circulation could better perform the function of communicating the
laws to the people as such periodicals are more easily available, have a wider readership,
and come out regularly. The trouble, though, is that this kind of publication is not the one
required or authorized by existing law. As far as we know, no amendment has been made
of Article 2 of the Civil Code. The Solicitor General has not pointed to such a law, and we
have no information that it exists. If it does, it obviously has not yet been published.
At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or
modify it if we find it impractical. That is not our function. That function belongs to the
legislature. Our task is merely to interpret and apply the law as conceived and approved
by the political departments of the government in accordance with the prescribed
procedure. Consequently, we have no choice but to pronounce that under Article 2 of the
Civil Code, the publication of laws must be made in the Official Gazette, and not
elsewhere, as a requirement for their effectivity after fifteen days from such publication or
after a different period provided by the legislature. LLphil
We also hold that the publication must be made forthwith, or at least as soon as possible,
to give effect to the law pursuant to the said Article 2. There is that possibility, of course,
although not suggested by the parties that a law could be rendered unenforceable by a
mere refusal of the executive, for whatever reason, to cause its publication as required.
This is a matter, however, that we do not need to examine at this time.
Finally, the claim of the former Solicitor General that the instant motion is a request for an
advisory opinion is untenable, to say the least, and deserves no further comment.
The days of the secret laws and the unpublished decrees are over. This is once again an
open society, with all the acts of the government subject to public scrutiny and available
always to public cognizance. This has to be so if our country is to remain democratic, with
sovereignty residing in the people and all government authority emanating from them.
Although they have delegated the power of legislation, they retain the authority to review
the work of their delegates and to ratify or reject it according to their lights, through their
freedom of expression and their right of suffrage. This they cannot do if the acts of the
legislature are concealed.
Laws must come out in the open in the clear light of the sun instead of skulking in the
shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules
cannot be recognized as binding unless their existence and contents are confirmed by a
valid publication intended to make full disclosure and give proper notice to the people.
The furtive law is like a scabbarded saber that cannot feint, parry or cut unless the naked
blade is drawn.
WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon
their approval, or as soon thereafter as possible, be published in full in the Official
Gazette, to become effective only after fifteen days from their publication, or on another
date specified by the legislature, in accordance with Article 2 of the Civil Code. dctai
206
SO ORDERED.
Teehankee, C .J ., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr ., and
Paras, JJ ., concur.
||| (Taada v. Tuvera, G.R. No. L-63915 (Resolution), [December 29, 1986], 230 PHIL
528-540)
EXECUTIVE ORDER NO. 200
PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE OFFICIAL GAZETTE
OR IN A NEWSPAPER OF GENERAL CIRCULATION IN THE PHILIPPINES AS A
REQUIREMENT FOR THEIR EFFECTIVITY
WHEREAS, Article 2 of the Civil Code partly provides that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it
is otherwise provided . . . ;" cdasia
WHEREAS, the requirement that for laws to be effective only a publication thereof in the
Official Gazette will suffice has entailed some problems, a point recognized by the
Supreme Court in Taada, et al. vs. Tuvera, et al. (G.R. No. 63915, December 29, 1986),
when it observed that "[t]here is much to be said of the view that the publication need not
be made in the Official Gazette, considering its erratic release and limited readership;"
WHEREAS, it was likewise observed that "[u]ndoubtedly, newspapers of general
circulation could better perform the function of communicating the laws to the people as
such periodicals are more easily available, have a wider readership, and come out
regularly;" and
WHEREAS, in view of the foregoing premises Article 2 of the Civil Code should
accordingly be amended so the laws to be effective must be published either in the Official
Gazette or in a newspaper of general circulation in the country;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by virtue of
the powers vested in me by the Constitution, do hereby order:
SECTION 1. Laws shall take effect after fifteen days following the completion of their
publication either in the Official Gazette or in a newspaper of general circulation in the
Philippines, unless it is otherwise provided. cdtai
SECTION 2. Article 2 of Republic Act No. 386, otherwise known as the "Civil Code of the
Philippines," and all other laws inconsistent with this Executive Order are hereby repealed
or modified accordingly.
SECTION 3. This Executive Order shall take effect immediately after its publication in the
Official Gazette.
DONE in the City of Manila, this 18th day of June, in the year of Our Lord, Nineteen
Hundred and Eighty-Seven.
Published in the Official Gazette, Vol. 83 No. 26 Page 3038-A on June 29, 1987.
||| (Publication of Laws as Requirement for Their Effectivity, EXECUTIVE ORDER NO.
200, [June 18, 1987])
1. PEOPLE VS. SITON 600 SCRA 476 (2009)
THIRD DIVISION
[G.R. No. 169364. September 18, 2009.]
PEOPLE OF THE PHILIPPINES, petitioner,vs.EVANGELINE SITON y SACIL and
KRYSTEL KATE SAGARANO y MEFANIA, respondents.
DECISION
207
YNARES-SANTIAGO, J p:
If a man is called to be a street sweeper, he should sweep streets even as Michelangelo
painted, or Beethoven composed music, or Shakespeare wrote poetry. He should sweep
streets so well that all the hosts of Heaven and Earth will pause to say, here lived a great
street sweeper who did his job well.
Martin Luther King, Jr.
Assailed in this petition for review on certiorari is the July 29, 2005 Order 1 of Branch 11,
Davao City Regional Trial Court in Special Civil Case No. 30-500-2004 granting
respondents' Petition for Certiorari and declaring paragraph 2 of Article 202 of the Revised
Penal Code unconstitutional. IASTDE
Respondents Evangeline Siton and Krystel Kate Sagarano were charged with vagrancy
pursuant to Article 202 (2) of the Revised Penal Code in two separate Informations dated
November 18, 2003, docketed as Criminal Case Nos. 115,716-C-2003 and 115,717-C2003 and raffled to Branch 3 of the Municipal Trial Court in Cities, Davao City. The
Informations, read:
That on or about November 14, 2003, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, willfully, unlawfully
and feloniously wandered and loitered around San Pedro and Legaspi Streets, this City,
without any visible means to support herself nor lawful and justifiable purpose. 2
Article 202 of the Revised Penal Code provides:
Art. 202. Vagrants and prostitutes; penalty. The following are vagrants:
1. Any person having no apparent means of subsistence, who has the physical ability to
work and who neglects to apply himself or herself to some lawful calling;
2. Any person found loitering about public or semi-public buildings or places or tramping
or wandering about the country or the streets without visible means of support;
3. Any idle or dissolute person who lodges in houses of ill fame; ruffians or pimps and
those who habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of this Code, shall
be found loitering in any inhabited or uninhabited place belonging to another without any
lawful or justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge in
sexual intercourse or lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this articles shall be punished
by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto
mayor in its medium period to prision correccional in its minimum period or a fine ranging
from 200 to 2,000 pesos, or both, in the discretion of the court.
Instead of submitting their counter-affidavits as directed, respondents filed separate
Motions to Quash 3 on the ground that Article 202 (2) is unconstitutional for being vague
and overbroad.
In an Order 4 dated April 28, 2004, the municipal trial court denied the motions and
directed respondents anew to file their respective counter-affidavits. The municipal trial
court also declared that the law on vagrancy was enacted pursuant to the State's police
power and justified by the Latin maxim "salus populi est suprem(a) lex", which calls for
the subordination of individual benefit to the interest of the greater number, thus:
208
Our law on vagrancy was enacted pursuant to the police power of the State. An authority
on police power, Professor Freund describes laconically police power "as the power of
promoting public welfare by restraining and regulating the use of liberty and
property".(Citations omitted).In fact the person's acts and acquisitions are hemmed in by
the police power of the state. The justification found in the Latin maxim, "salus populi est
supreme (sic) lex" (the god of the people is the Supreme Law).This calls for the
subordination of individual benefit to the interests of the greater number. In the case at
bar the affidavit of the arresting police officer, SPO1 JAY PLAZA with Annex "A" lucidly
shows that there was a prior surveillance conducted in view of the reports that vagrants
and prostitutes proliferate in the place where the two accused (among other women) were
wandering and in the wee hours of night and soliciting male customer. Thus, on that basis
the prosecution should be given a leeway to prove its case. Thus, in the interest of
substantial justice, both prosecution and defense must be given their day in Court: the
prosecution proof of the crime, and the author thereof; the defense, to show that the acts
of the accused in the indictment can't be categorized as a crime. 5
The municipal trial court also noted that in the affidavit of the arresting police officer, SPO1
Jay Plaza, it was stated that there was a prior surveillance conducted on the two accused
in an area reported to be frequented by vagrants and prostitutes who solicited sexual
favors. Hence, the prosecution should be given the opportunity to prove the crime, and
the defense to rebut the evidence.
Respondents thus filed an original petition for certiorari and prohibition with the Regional
Trial Court of Davao City, 6 directly challenging the constitutionality of the anti-vagrancy
law, claiming that the definition of the crime of vagrancy under Article 202 (2), apart from
being vague, results as well in an arbitrary identification of violators, since the definition
of the crime includes in its coverage persons who are otherwise performing ordinary
peaceful acts. They likewise claimed that Article 202 (2) violated the equal protection
clause under the Constitution because it discriminates against the poor and unemployed,
thus permitting an arbitrary and unreasonable classification.
The State, through the Office of the Solicitor General, argued that pursuant to the Court's
ruling in Estrada v. Sandiganbayan, 7 the overbreadth and vagueness doctrines apply
only to free speech cases and not to penal statutes. It also asserted that Article 202 (2)
must be presumed valid and constitutional, since the respondents failed to overcome this
presumption. CITaSA
On July 29, 2005, the Regional Trial Court issued the assailed Order granting the petition,
the dispositive portion of which reads:
WHEREFORE, PRESCINDING FROM THE FOREGOING, the instant Petition is hereby
GRANTED. Paragraph 2 of Article 202 of the Revised Penal Code is hereby declared
unconstitutional and the Order of the court a quo, dated April 28, 2004, denying the
petitioners' Motion to Quash is set aside and the said court is ordered to dismiss the
subject criminal cases against the petitioners pending before it.
SO ORDERED. 8
In declaring Article 202 (2) unconstitutional, the trial court opined that the law is vague
and it violated the equal protection clause. It held that the "void for vagueness" doctrine
is equally applicable in testing the validity of penal statutes. Citing Papachristou v. City of
Jacksonville, 9 where an anti-vagrancy ordinance was struck down as unconstitutional by
the Supreme Court of the United States, the trial court ruled:
The U.S. Supreme Court's justifications for striking down the Jacksonville Vagrancy
Ordinance are equally applicable to paragraph 2 of Article 202 of the Revised Penal Code.
Indeed, to authorize a police officer to arrest a person for being "found loitering about
public or semi-public buildings or places or tramping or wandering about the country or
the streets without visible means of support" offers too wide a latitude for arbitrary
determinations as to who should be arrested and who should not.
209
Loitering about and wandering have become national pastimes particularly in these times
of recession when there are many who are "without visible means of support" not by
reason of choice but by force of circumstance as borne out by the high unemployment
rate in the entire country.
To authorize law enforcement authorities to arrest someone for nearly no other reason
than the fact that he cannot find gainful employment would indeed be adding insult to
injury. 10
On its pronouncement that Article 202 (2) violated the equal protection clause of the
Constitution, the trial court declared:
The application of the Anti-Vagrancy Law, crafted in the 1930s, to our situation at present
runs afoul of the equal protection clause of the constitution as it offers no reasonable
classification between those covered by the law and those who are not.
Class legislation is such legislation which denies rights to one which are accorded to
others, or inflicts upon one individual a more severe penalty than is imposed upon another
in like case offending.
Applying this to the case at bar, since the definition of Vagrancy under Article 202 of the
Revised Penal Code offers no guidelines or any other reasonable indicators to
differentiate those who have no visible means of support by force of circumstance and
those who choose to loiter about and bum around, who are the proper subjects of
vagrancy legislation, it cannot pass a judicial scrutiny of its constitutionality. 11
Hence, this petition for review on certiorari raising the sole issue of:
WHETHER THE REGIONAL TRIAL COURT COMMITTED A REVERSIBLE ERROR IN
DECLARING UNCONSTITUTIONAL ARTICLE 202 (2) OF THE REVISED PENAL CODE
12
Petitioner argues that every statute is presumed valid and all reasonable doubts should
be resolved in favor of its constitutionality; that, citing Romualdez v. Sandiganbayan, 13
the overbreadth and vagueness doctrines have special application to free-speech cases
only and are not appropriate for testing the validity of penal statutes; that respondents
failed to overcome the presumed validity of the statute, failing to prove that it was vague
under the standards set out by the Courts; and that the State may regulate individual
conduct for the promotion of public welfare in the exercise of its police power. caDTSE
On the other hand, respondents argue against the limited application of the overbreadth
and vagueness doctrines. They insist that Article 202 (2) on its face violates the
constitutionally-guaranteed rights to due process and the equal protection of the laws;
that the due process vagueness standard, as distinguished from the free speech
vagueness doctrine, is adequate to declare Article 202 (2) unconstitutional and void on
its face; and that the presumption of constitutionality was adequately overthrown.
The Court finds for petitioner.
The power to define crimes and prescribe their corresponding penalties is legislative in
nature and inherent in the sovereign power of the state to maintain social order as an
aspect of police power. The legislature may even forbid and penalize acts formerly
considered innocent and lawful provided that no constitutional rights have been abridged.
14 However, in exercising its power to declare what acts constitute a crime, the legislature
must inform the citizen with reasonable precision what acts it intends to prohibit so that
he may have a certain understandable rule of conduct and know what acts it is his duty
to avoid. 15 This requirement has come to be known as the void-for-vagueness doctrine
which states that "a statute which either forbids or requires the doing of an act in terms
so vague that men of common intelligence must necessarily guess at its meaning and
differ as to its application, violates the first essential of due process of law".16
In Spouses Romualdez v. COMELEC, 17 the Court recognized the application of the voidfor-vagueness doctrine to criminal statutes in appropriate cases. The Court therein held:
210
At the outset, we declare that under these terms, the opinions of the dissent which seek
to bring to the fore the purported ambiguities of a long list of provisions in Republic Act
No. 8189 can be deemed as a facial challenge. An appropriate "as applied" challenge in
the instant Petition should be limited only to Section 45 (j) in relation to Sections 10 (g)
and (j) of Republic Act No. 8189 the provisions upon which petitioners are charged. An
expanded examination of the law covering provisions which are alien to petitioners' case
would be antagonistic to the rudiment that for judicial review to be exercised, there must
be an existing case or controversy that is appropriate or ripe for determination, and not
conjectural or anticipatory. 18
The first statute punishing vagrancy Act No. 519 was modeled after American
vagrancy statutes and passed by the Philippine Commission in 1902. The Penal Code of
Spain of 1870 which was in force in this country up to December 31, 1931 did not contain
a provision on vagrancy. 19 While historically an Anglo-American concept of crime
prevention, the law on vagrancy was included by the Philippine legislature as a permanent
feature of the Revised Penal Code in Article 202 thereof which, to repeat, provides:
ART. 202. Vagrants and prostitutes; penalty. The following are vagrants:
1. Any person having no apparent means of subsistence, who has the physical ability to
work and who neglects to apply himself or herself to some lawful calling;
2. Any person found loitering about public or semi-public buildings or places, or tramping
or wandering about the country or the streets without visible means of support;
3. Any idle or dissolute person who lodges in houses of ill-fame; ruffians or pimps and
those who habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of this Code, shall
be found loitering in any inhabited or uninhabited place belonging to another without any
lawful or justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge in
sexual intercourse or lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this article shall be punished
by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto
mayor in its medium period to prision correccional in its minimum period or a fine ranging
from 200 to 2,000 pesos, or both, in the discretion of the court. HCaDET
In the instant case, the assailed provision is paragraph (2),which defines a vagrant as any
person found loitering about public or semi-public buildings or places, or tramping or
wandering about the country or the streets without visible means of support. This
provision was based on the second clause of Section 1 of Act No. 519 which defined
"vagrant" as "every person found loitering about saloons or dramshops or gambling
houses, or tramping or straying through the country without visible means of support".
The second clause was essentially retained with the modification that the places under
which the offense might be committed is now expressed in general terms public or
semi-public places.
The Regional Trial Court, in asserting the unconstitutionality of Article 202 (2),take
support mainly from the U.S. Supreme Court's opinion in the Papachristou v. City of
Jacksonville 20 case, which in essence declares:
Living under a rule of law entails various suppositions, one of which is that "[all persons]
are entitled to be informed as to what the State commands or forbids". Lanzetta v. New
Jersey, 306 U.S. 451, 306 U.S. 453. IDcTEA
211
Lanzetta is one of a well recognized group of cases insisting that the law give fair notice
of the offending conduct. See Connally v. General Construction Co., 269 U.S. 385, 269
U.S. 391; Cline v. Frink Dairy Co., 274 U.S. 445; United States v. Cohen Grocery Co.,
255 U.S. 81. In the field of regulatory statutes governing business activities, where the
acts limited are in a narrow category, greater leeway is allowed. Boyce Motor Lines, Inc.
v. United States, 342 U.S. 337; United States v. National Dairy Products Corp.,372 U.S.
29; United States v. Petrillo, 332 U.S. 1.
The poor among us, the minorities, the average householder, are not in business and not
alerted to the regulatory schemes of vagrancy laws; and we assume they would have no
understanding of their meaning and impact if they read them. Nor are they protected from
being caught in the vagrancy net by the necessity of having a specific intent to commit an
unlawful act. See Screws v. United States, 325 U.S. 91; Boyce Motor Lines, Inc. v. United
States, supra.
The Jacksonville ordinance makes criminal activities which, by modern standards, are
normally innocent. "Nightwalking" is one. Florida construes the ordinance not to make
criminal one night's wandering, Johnson v. State, 202 So.2d at 855, only the "habitual"
wanderer or, as the ordinance describes it, "common night walkers".We know, however,
from experience that sleepless people often walk at night, perhaps hopeful that sleepinducing relaxation will result.
Luis Munoz-Marin, former Governor of Puerto Rico, commented once that "loafing" was
a national virtue in his Commonwealth, and that it should be encouraged. It is, however,
a crime in Jacksonville.
xxx xxx xxx
Persons "wandering or strolling" from place to place have been extolled by Walt Whitman
and Vachel Lindsay. The qualification "without any lawful purpose or object" may be a
trap for innocent acts. Persons "neglecting all lawful business and habitually spending
their time by frequenting ...places where alcoholic beverages are sold or served'' would
literally embrace many members of golf clubs and city clubs.
Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers
or loiterers may be "casing" a place for a holdup. Letting one's wife support him is an
intra-family matter, and normally of no concern to the police. Yet it may, of course, be the
setting for numerous crimes.
The difficulty is that these activities are historically part of the amenities of life as we have
known them. They are not mentioned in the Constitution or in the Bill of Rights. These
unwritten amenities have been, in part, responsible for giving our people the feeling of
independence and self-confidence, the feeling of creativity. These amenities have
dignified the right of dissent, and have honored the right to be nonconformists and the
right to defy submissiveness. They have encouraged lives of high spirits, rather than
hushed, suffocating silence.
xxx xxx xxx
Where the list of crimes is so all-inclusive and generalized as the one in this ordinance,
those convicted may be punished for no more than vindicating affronts to police authority:
"The common ground which brings such a motley assortment of human troubles before
the magistrates in vagrancy-type proceedings is the procedural laxity which permits
'conviction' for almost any kind of conduct and the existence of the House of Correction
as an easy and convenient dumping-ground for problems that appear to have no other
212
immediate solution." Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev.
603, 631.
xxx xxx xxx
Another aspect of the ordinance's vagueness appears when we focus not on the lack of
notice given a potential offender, but on the effect of the unfettered discretion it places in
the hands of the Jacksonville police. Caleb Foote, an early student of this subject, has
called the vagrancy-type law as offering "punishment by analogy".Such crimes, though
long common in Russia, are not compatible with our constitutional system.
xxx xxx xxx
A presumption that people who might walk or loaf or loiter or stroll or frequent houses
where liquor is sold, or who are supported by their wives or who look suspicious to the
police are to become future criminals is too precarious for a rule of law. The implicit
presumption in these generalized vagrancy standards that crime is being nipped in the
bud is too extravagant to deserve extended treatment. Of course, vagrancy statutes
are useful to the police. Of course, they are nets making easy the roundup of so-called
undesirables. But the rule of law implies equality and justice in its application. Vagrancy
laws of the Jacksonville type teach that the scales of justice are so tipped that evenhanded administration of the law is not possible. The rule of law, evenly applied to
minorities as well as majorities, to the poor as well as the rich, is the great mucilage that
holds society together. 21
The underlying principles in Papachristou are that: 1) the assailed Jacksonville ordinance
"fails to give a person of ordinary intelligence fair notice that his contemplated conduct is
forbidden by the statute";and 2) it encourages or promotes opportunities for the
application of discriminatory law enforcement. TCDHIc
The said underlying principle in Papachristou that the Jacksonville ordinance, or Article
202 (2) in this case, fails to give fair notice of what constitutes forbidden conduct, finds no
application here because under our legal system, ignorance of the law excuses no one
from compliance therewith. 22 This principle is of Spanish origin, and we adopted it to
govern and limit legal conduct in this jurisdiction. Under American law, ignorance of the
law is merely a traditional rule that admits of exceptions. 23
Moreover, the Jacksonville ordinance was declared unconstitutional on account of
specific provisions thereof, which are not found in Article 202 (2).The ordinance
(Jacksonville Ordinance Code 257) provided, as follows:
Rogues and vagabonds, or dissolute persons who go about begging; common gamblers,
persons who use juggling or unlawful games or plays, common drunkards, common night
walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and
lascivious persons, keepers of gambling places, common railers and brawlers, persons
wandering or strolling around from place to place without any lawful purpose or object,
habitual loafers, disorderly persons, persons neglecting all lawful business and habitually
spending their time by frequenting houses of ill fame, gaming houses, or places where
alcoholic beverages are sold or served, persons able to work but habitually living upon
the earnings of their wives or minor children shall be deemed vagrants and, upon
conviction in the Municipal Court shall be punished as provided for Class D offenses.
Thus, the U.S. Supreme Court in Jacksonville declared the ordinance unconstitutional,
because such activities or habits as nightwalking, wandering or strolling around without
any lawful purpose or object, habitual loafing, habitual spending of time at places where
alcoholic beverages are sold or served,and living upon the earnings of wives or minor
children,which are otherwise common and normal, were declared illegal. But these are
specific acts or activities not found in Article 202 (2).The closest to Article 202 (2) "any
person found loitering about public or semi-public buildings or places, or tramping or
wandering about the country or the streets without visible means of support" from the
213
Jacksonville ordinance, would be "persons wandering or strolling around from place to

place without any lawful purpose or object". But these two acts are still not the same:
Article 202 (2) is qualified by "without visible means of support" while the Jacksonville
ordinance prohibits wandering or strolling "without any lawful purpose or object",which
was held by the U.S. Supreme Court to constitute a "trap for innocent acts".
Under the Constitution, the people are guaranteed the right to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures of whatever
nature and for any purpose, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized. 24 Thus, as
with any other act or offense, the requirement of probable cause provides an acceptable
limit on police or executive authority that may otherwise be abused in relation to the
search or arrest of persons found to be violating Article 202 (2).The fear exhibited by the
respondents, echoing Jacksonville, that unfettered discretion is placed in the hands of the
police to make an arrest or search, is therefore assuaged by the constitutional
requirement of probable cause, which is one less than certainty or proof, but more than
suspicion or possibility. 25
Evidently, the requirement of probable cause cannot be done away with arbitrarily without
pain of punishment, for, absent this requirement, the authorities are necessarily guilty of
abuse. The grounds of suspicion are reasonable when, in the absence of actual belief of
the arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense, is based on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to be
arrested. A reasonable suspicion therefore must be founded on probable cause, coupled
with good faith of the peace officers making the arrest. 26
The State cannot in a cavalier fashion intrude into the persons of its citizens as well as
into their houses, papers and effects. The constitutional provision sheathes the private
individual with an impenetrable armor against unreasonable searches and seizures. It
protects the privacy and sanctity of the person himself against unlawful arrests and other
forms of restraint, and prevents him from being irreversibly cut off from that domestic
security which renders the lives of the most unhappy in some measure agreeable. 27
As applied to the instant case, it appears that the police authorities have been conducting
previous surveillance operations on respondents prior to their arrest. On the surface, this
satisfies the probable cause requirement under our Constitution. For this reason, we are
not moved by respondents' trepidation that Article 202 (2) could have been a source of
police abuse in their case. ACIEaH
Since the Revised Penal Code took effect in 1932, no challenge has ever been made
upon the constitutionality of Article 202 except now. Instead, throughout the years, we
have witnessed the streets and parks become dangerous and unsafe, a haven for
beggars, harassing "watch-your-car" boys, petty thieves and robbers, pickpockets,
swindlers, gangs, prostitutes, and individuals performing acts that go beyond decency
and morality, if not basic humanity. The streets and parks have become the training
ground for petty offenders who graduate into hardened and battle-scarred criminals.
Everyday, the news is rife with reports of innocent and hardworking people being robbed,
swindled, harassed or mauled if not killed by the scourge of the streets. Blue collar
workers are robbed straight from withdrawing hard-earned money from the ATMs
(automated teller machines);students are held up for having to use and thus exhibit
publicly their mobile phones; frail and helpless men are mauled by thrill-seeking gangs;
innocent passers-by are stabbed to death by rowdy drunken men walking the streets; fairlooking or pretty women are stalked and harassed, if not abducted, raped and then killed;
robbers, thieves, pickpockets and snatchers case streets and parks for possible victims;
the old are swindled of their life savings by conniving streetsmart bilkers and con artists
on the prowl; beggars endlessly pester and panhandle pedestrians and commuters,
posing a health threat and putting law-abiding drivers and citizens at risk of running them
over. All these happen on the streets and in public places, day or night.
214
The streets must be protected. Our people should never dread having to ply them each
day, or else we can never say that we have performed our task to our brothers and sisters.
We must rid the streets of the scourge of humanity, and restore order, peace, civility,
decency and morality in them.
This is exactly why we have public order laws,to which Article 202 (2) belongs. These
laws were crafted to maintain minimum standards of decency, morality and civility in
human society. These laws may be traced all the way back to ancient times, and today,
they have also come to be associated with the struggle to improve the citizens' quality of
life, which is guaranteed by our Constitution. 28 Civilly,they are covered by the "abuse of
rights" doctrine embodied in the preliminary articles of the Civil Code concerning Human
Relations, to the end, in part, that any person who willfully causes loss or injury to another
in a manner that is contrary to morals, good customs or public policy shall compensate
the latter for the damage. 29 This provision is, together with the succeeding articles on
human relations, intended to embody certain basic principles "that are to be observed for
the rightful relationship between human beings and for the stability of the social order".30
In civil law, for example, the summary remedy of ejectment is intended to prevent criminal
disorder and breaches of the peace and to discourage those who, believing themselves
entitled to the possession of the property, resort to force rather than to some appropriate
action in court to assert their claims. 31 Any private person may abate a public nuisance
which is specially injurious to him by removing, or if necessary, by destroying the thing
which constitutes the same, without committing a breach of the peace, or doing
unnecessary injury. 32
Criminally, public order laws encompass a whole range of acts from public indecencies
and immoralities, to public nuisances, to disorderly conduct. The acts punished are made
illegal by their offensiveness to society's basic sensibilities and their adverse effect on the
quality of life of the people of society. For example, the issuance or making of a bouncing
check is deemed a public nuisance, a crime against public order that must be abated. 33
As a matter of public policy, the failure to turn over the proceeds of the sale of the goods
covered by a trust receipt or to return said goods, if not sold, is a public nuisance to be
abated by the imposition of penal sanctions. 34 Thus, public nuisances must be abated
because they have the effect of interfering with the comfortable enjoyment of life or
property by members of a community. cETCID
Article 202 (2) does not violate the equal protection clause; neither does it discriminate
against the poor and the unemployed. Offenders of public order laws are punished not
for their status, as for being poor or unemployed, but for conducting themselves under
such circumstances as to endanger the public peace or cause alarm and apprehension
in the community. Being poor or unemployed is not a license or a justification to act
indecently or to engage in immoral conduct.
Vagrancy must not be so lightly treated as to be considered constitutionally offensive. It
is a public order crime which punishes persons for conducting themselves, at a certain
place and time which orderly society finds unusual, under such conditions that are
repugnant and outrageous to the common standards and norms of decency and morality
in a just, civilized and ordered society, as would engender a justifiable concern for the
safety and well-being of members of the community.
Instead of taking an active position declaring public order laws unconstitutional, the State
should train its eye on their effective implementation, because it is in this area that the
Court perceives difficulties. Red light districts abound, gangs work the streets in the wee
hours of the morning, dangerous robbers and thieves ply their trade in the trains stations,
drunken men terrorize law-abiding citizens late at night and urinate on otherwise decent
corners of our streets. Rugby-sniffing individuals crowd our national parks and busy
intersections. Prostitutes wait for customers by the roadside all around the metropolis,
some even venture in bars and restaurants. Drug-crazed men loiter around dark avenues
waiting to pounce on helpless citizens. Dangerous groups wander around, casing homes
and establishments for their next hit. The streets must be made safe once more. Though
a man's house is his castle, 35 outside on the streets, the king is fair game.
The dangerous streets must surrender to orderly society.
215
Finally, we agree with the position of the State that first and foremost, Article 202 (2)
should be presumed valid and constitutional. When confronted with a constitutional
question, it is elementary that every court must approach it with grave care and
considerable caution bearing in mind that every statute is presumed valid and every
reasonable doubt should be resolved in favor of its constitutionality. 36 The policy of our
courts is to avoid ruling on constitutional questions and to presume that the acts of the
political departments are valid in the absence of a clear and unmistakable showing to the
contrary. To doubt is to sustain, this presumption is based on the doctrine of separation
of powers which enjoins upon each department a becoming respect for the acts of the
other departments. The theory is that as the joint act of Congress and the President of
the Philippines, a law has been carefully studied, crafted and determined to be in
accordance with the fundamental law before it was finally enacted. 37
It must not be forgotten that police power is an inherent attribute of sovereignty. It has
been defined as the power vested by the Constitution in the legislature to make, ordain,
and establish all manner of wholesome and reasonable laws, statutes and ordinances,
either with penalties or without, not repugnant to the Constitution, as they shall judge to
be for the good and welfare of the commonwealth, and for the subjects of the same. The
power is plenary and its scope is vast and pervasive, reaching and justifying measures
for public health, public safety, public morals, and the general welfare. 38 As an obvious
police power measure, Article 202 (2) must therefore be viewed in a constitutional light.
cASIED
WHEREFORE,the petition is GRANTED.The Decision of Branch 11 of the Regional Trial
Court of Davao City in Special Civil Case No. 30-500-2004 declaring Article 202,
paragraph 2 of the Revised Penal Code UNCONSTITUTIONAL is REVERSED and SET
ASIDE.
Let the proceedings in Criminal Cases Nos. 115,716-C-2003 and 115,717-C-2003 thus
continue.
No costs.
SO ORDERED.
Chico-Nazario, Velasco, Jr.,Peralta and Bersamin, * JJ., concur.
||| (People v. Siton y Sacil, G.R. No. 169364, [September 18, 2009], 616 PHIL 449-473)
2. DLSU VS. CA 541 SCRA 22 (2007)
THIRD DIVISION
[G.R. No. 127980. December 19, 2007.]
DE LA SALLE UNIVERSITY, INC., EMMANUEL SALES, RONALD HOLMES, JUDE
DELA TORRE, AMPARO RIO, CARMELITA QUEBENGCO, AGNES YUHICO and
JAMES YAP, petitioners, vs. THE COURT OF APPEALS, HON. WILFREDO D. REYES,
in his capacity as Presiding Judge of Branch 36, Regional Trial Court of Manila, THE
COMMISSION ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION
CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD
REVERENTE and ROBERTO VALDES, JR., respondents.
DECISION
REYES, R.T., J p:
NAGTATAGIS sa kasong ito ang karapatang mag-aral ng apat na estudyante na
nasangkot sa away ng dalawang fraternity at ang karapatang akademiko ng isang
pamantasan.
216
PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and
Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by the
De La Salle University (DLSU) and College of Saint Benilde (CSB) 1 Joint Discipline
Board because of their involvement in an offensive action causing injuries to petitioner
James Yap and three other student members of Domino Lux Fraternity. This is the
backdrop of the controversy before Us pitting private respondents' right to education visa-vis the University's right to academic freedom.
ASSAILED in this Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the
Rules of Court are the following: (1) Resolution of the Court of Appeals (CA) dated July
30, 1996 dismissing DLSU's petition for certiorari against respondent Judge and private
respondents Aguilar, Bungubung, Reverente, and Valdes, Jr.; 2 (2) Resolution of the CA
dated October 15, 1996 denying the motion for reconsideration; 3 (3) Order dated January
7, 1997 of the Regional Trial Court (RTC), Branch 36 Manila granting private respondent
Aguilar's motion to reiterate writ of preliminary injunction; 4 and (4) Resolution No. 18196 dated May 14, 1996 of the Commission on Higher Education (CHED) exonerating
private respondent Aguilar and lowering the penalties for the other private respondents
from expulsion to exclusion. 5
Factual Antecedents
Gleaned from the May 3, 1995 Decision of the DLSU-CSB Joint Discipline Board, two
violent incidents on March 29, 1995 involving private respondents occurred:
. . . From the testimonies of the complaining witnesses, it appears that one week prior to
March 29, 1995, Mr. James Yap was eating his dinner alone in Manang's Restaurant near
La Salle, when he overheard two men bad-mouthing and apparently angry at Domino
Lux. He ignored the comments of the two. When he arrived at his boarding house, he
mentioned the remarks to his two other brods while watching television. These two brods
had earlier finished eating their dinner at Manang's. Then, the three, together with four
other persons went back to Manang's and confronted the two who were still in the
restaurant. By admission of respondent Bungubung in his testimony, one of the two was
a member of the Tau Gamma Phi Fraternity. There was no rumble or physical violence
then.
After this incident, a meeting was conducted between the two heads of the fraternity
through the intercession of the Student Council. The Tau Gamma Phi Fraternity was
asking for an apology. "Kailangan ng apology" in the words of respondent Aguilar. But no
apology was made.
Then, 5 members of the Tau Gamma Phi Fraternity went to the tambayan of the Domino
Lux Fraternity in the campus. Among them were respondents Bungubung, Reverente and
Papio. They were looking for a person whose description matched James Yap. According
to them, this person supposedly "nambastos ng brod." As they could not find Mr. Yap,
one of them remarked "Paano ba iyan. Pasensiya na lang."
Came March 29, 1995 and the following events.
Ten minutes before his next class at 6:00 p.m., Mr. James Yap went out of the campus
using the Engineering Gate to buy candies across Taft Avenue. As he was about to recross Taft Avenue, he heard heavy footsteps at his back. Eight to ten guys were running
towards him. He panicked. He did not know what to do. Then, respondent Bungubung
punched him in the head with something heavy in his hands "parang knuckles."
Respondents Reverente and Lee were behind Yap, punching him. Respondents
Bungubung and Valdes who were in front of him, were also punching him. As he was
lying on the street, respondent Aguilar kicked him. People shouted; guards arrived; and
the group of attackers left.
217
Mr. Yap could not recognize the other members of the group who attacked him. With
respect to respondent Papio, Mr. Yap said "hindi ko nakita ang mukha niya, hindi ko nakita
sumuntok siya." What Mr. Yap saw was a long haired guy also running with the group.
Two guards escorted Mr. Yap inside the campus. At this point, Mr. Dennis Pascual was
at the Engineering Gate. Mr. Pascual accompanied Yap to the university clinic; reported
the incident to the Discipline Office; and informed his fraternity brods at their tambayan.
According to Mr. Pascual, their head of the Domino Lux Fraternity said: "Walang gagalaw.
Uwian na lang." DTAIaH
Mr. Ericson Cano, who was supposed to hitch a ride with Dennis Pascual, saw him under
the clock in Miguel Building. However, they did not proceed directly for home. With a
certain Michael Perez, they went towards the direction of Dagonoy Street because Mr.
Pascual was supposed to pick up a book for his friend from another friend who lives
somewhere in the area.
As they were along Dagonoy Street, and before they could pass the Kolehiyo ng Malate
Restaurant, Mr. Cano first saw several guys inside the restaurant. He said not to mind
them and just keep on walking. However, the group got out of the restaurant, among them
respondents Reverente, Lee and Valdes. Mr. Cano told Mr. Lee: "Ayaw namin ng gulo."
But, respondent Lee hit Mr. Cano without provocation. Respondent Reverente kicked Mr.
Pascual and respondent Lee also hit Mr. Pascual. Mr. Cano and Mr. Perez managed to
run from the mauling and they were chased by respondent Lee and two others.
Mr. Pascual was left behind. After respondent Reverente first kicked him, Mr. Pascual
was ganged-upon by the rest. He was able to run, but the group was able to catch up with
him. His shirt was torn and he was hit at the back of his head with a lead pipe. Respondent
Lee who was chasing Cano and Perez, then returned to Mr. Pascual.
Mr. Pascual identified respondents Reverente and Lee, as among those who hit him.
Although Mr. Pascual did not see respondent Valdes hit him, he identified respondent
Valdez (sic) as also one of the members of the group. HCTaAS
In fact, Mr. Cano saw respondent Valdes near Mr. Pascual. He was almost near the
corner of Leon Guinto and Estrada; while respondent Pascual who managed to run was
stopped at the end of Dagonoy along Leon Guinto. Respondent Valdes shouted: "Mga
putang-ina niyo." Respondent Reverente hit Mr. Pascual for the last time. Apparently
being satisfied with their handiwork, the group left. The victims, Cano, Perez and Pascual
proceeded to a friend's house and waited for almost two hours, or at around 8:00 in the
evening before they returned to the campus to have their wounds treated. Apparently,
there were three cars roaming the vicinity. 6
The mauling incidents were a result of a fraternity war. The victims, namely: petitioner
James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the
"Domino Lux Fraternity," while the alleged assailants, private respondents Alvin Aguilar,
James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of
"Tau Gamma Phi Fraternity," a rival fraternity.
The next day, March 30, 1995, petitioner Yap lodged a complaint 7 with the Discipline
Board of DLSU charging private respondents with "direct assault." Similar complaints 8
were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and private
respondents Valdes and Reverente. Thus, cases entitled "De La Salle University and
College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (ABPSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee (EDD/9462325),
Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-MGT/9251227)" were
docketed as Discipline Case No. 9495-3-25121.
218
The Director of the DLSU Discipline Office sent separate notices to private respondents
Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints and
requiring them to answer. Private respondents filed their respective answers. 9
As it appeared that students from DLSU and CSB 10 were involved in the mauling
incidents, a joint DLSU-CSB Discipline Board 11 was formed to investigate the incidents.
Thus, petitioner Board Chairman Emmanuel Sales sent notices of hearing 12 to private
respondents on April 12, 1995. Said notices uniformly stated as follows:
Please be informed that a joint and expanded Discipline Board had been constituted to
hear and deliberate the charge against you for violation of CHED Order No. 4 arising from
the written complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano.
You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at
9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give testimony and
present evidence in your behalf. You may be assisted by a lawyer when you give your
testimony or those of your witnesses.
On or before April 18, 1995, you are further directed to provide the Board, through the
Discipline Office, with a list of your witnesses as well as the sworn statement of their
proposed testimony.
Your failure to appear at the scheduled hearing or your failure to submit the list of
witnesses and the sworn statement of their proposed testimony will be considered a
waiver on your part to present evidence and as an admission of the principal act
complained of.
For your strict compliance. 13
During the proceedings before the Board on April 19 and 28, 1995, private respondents
interposed the common defense of alibi, summarized by the DLSU-CSB Joint Discipline
Board as follows:
First, in the case of respondent Bungubung, March 29, 1995 was one of the few instances
when he was picked-up by a driver, a certain Romeo S. Carillo. Most of the time,
respondent Bungubung goes home alone sans driver. But on this particular date,
respondent Bungubung said that his dad asked his permission to use the car and thus,
his dad instructed this driver Carillo to pick-up his son. Mr. Carillo is not a family driver,
but works from 8:00 a.m. to 5:00 p.m. for the Philippine Ports Authority where the elder
Bungubung is also employed.
Thus, attempting to corroborate the alibi of respondent Bungubung, Mr. Carillo said that
he arrived at La Salle at 4:56 p.m.; picked-up respondent at 5:02 p.m.; took the Roxas
Blvd. route towards respondent's house in BF Paraaque (on a Wednesday in Baclaran);
and arrived at the house at 6:15 p.m. Respondent Bungubung was dropped-off in his
house, and taking the same route back, Mr. Carillo arrived at the South Harbor at 6:55
p.m. the Philippine Ports Authority is located at the South Harbor. 14
xxx xxx xxx
Secondly, respondent Valdes said that he was with his friends at McDonald's Taft just
before 6:00 p.m. of March 29, 1995. He said that he left McDonald at 5:50 p.m. together
to get some medicine at the university clinic for his throat irritation. He said that he was
219
at the clinic at 5:52 p.m. and went back to McDonald, all within a span of 3 or even 4
minutes.
Two witnesses, a certain Sharon Sia and the girlfriend of respondent Valdes, a certain
Jorgette Aquino, attempted to corroborate Valdez' alibi. 15
xxx xxx xxx
Third, respondent Reverente told that (sic) the Board that he was at his home at 5:00 p.m.
of March 29, 1995. He said that he was given the responsibility to be the paymaster of
the construction workers who were doing some works in the apartment of his parents.
Although he had classes in the evening, the workers according to him would wait for him
sometimes up to 9:00 p.m. when he arrives from his classes. The workers get paid
everyday.
Respondent Reverente submitted an affidavit, unsigned by the workers listed there,
supposedly attesting to the fact that he paid the workers at the date and time in question.
16
xxx xxx xxx
Fourth, respondent Aguilar "solemnly sw[ore] that [he] left DLSU at 5:00 p.m. for Camp
Crame for a meeting with some of the officers that we were preparing." 17
On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution 18 finding
private respondents guilty. They were meted the supreme penalty of automatic expulsion,
19 pursuant to CHED Order No. 4. 20 The dispositive part of the resolution reads:
WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN
AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN
LEE (EDD/94623250) and RICHARD V. REVERENTE (AB-MGT/9153837) guilty of
having violated CHED Order No. 4 and thereby orders their automatic expulsion.
In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board acquits him
of the charge.
SO ORDERED. 21
Private respondents separately moved for reconsideration 22 before the Office of the
Senior Vice-President for Internal Operations of DLSU. The motions were all denied in a
Letter-Resolution 23 dated June 1, 1995.
On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, against
petitioners a petition for certiorari and injunction under Rule 65 of the Rules of Court with
prayer for temporary restraining order (TRO) and/or writ of preliminary injunction. It was
docketed as Civil Case No. 95-74122 and assigned to respondent Judge of Branch 36.
The petition essentially sought to annul the May 3, 1995 Resolution of the DLSU-CSB
Joint Discipline Board and the June 1, 1995 Letter-Resolution of the Office of the Senior
Vice-President for Internal Affairs.
The following day, June 6, 1995, respondent Judge issued a TRO 24 directing DLSU, its
subordinates, agents, representatives and/or other persons acting for and in its behalf to
refrain and desist from implementing Resolution dated May 3, 1995 and Letter-Resolution
dated June 1, 1995 and to immediately desist from barring the enrollment of Aguilar for
the second term of school year (SY) 1995.
220
Subsequently, private respondent Aguilar filed an ex parte motion to amend his petition
to correct an allegation in paragraph 3.21 25 of his original petition. Respondent Judge
amended the TRO 26 to conform to the correction made in the amended petition. 27
On June 7, 1995, the CHED directed DLSU to furnish it with copies of the case records
of Discipline Case No. 9495-3-25121, 28 in view of the authority granted to it under
Section 77 (c) of the Manual of Regulations for Private Schools (MRPS).
On the other hand, private respondents Bungubung and Reverente, and later, Valdes,
filed petitions-in-intervention 29 in Civil Case No. 95-74122. Respondent Judge also
issued corresponding temporary restraining orders to compel petitioner DLSU to admit
said private respondents.
On June 19, 1995, petitioner Sales filed a motion to dismiss 30 in behalf of all petitioners,
except James Yap. On June 20, 1995, petitioners filed a supplemental motion to dismiss
31 the petitions-in-intervention.
On September 20, 1995, respondent Judge issued an Order 32 denying petitioners'
(respondents there) motion to dismiss and its supplement, and granted private
respondents' (petitioners there) prayer for a writ of preliminary injunction. The pertinent
part of the Order reads:
For this purpose, respondent, its agents, representatives or any and all other persons
acting for and in its behalf is/are restrained and enjoined from
expulsion of petitioner and the petitioners-in-intervention from the De La Salle University
and the letter-resolution dated June 1, 1995, affirming the Resolution dated May 3, 1995;
and
2. Barring the enrolment of petitioner and petitioners-in-intervention in the courses offered
at respondent De La Salle University and to immediately allow them to enroll and
complete their respective courses/degrees until their graduation thereat in accordance
with the standards set by the latter.
WHEREFORE, the ancillary remedy prayed for is granted. Respondent, its agents,
representatives, or any and all persons acting for and its behalf are hereby restrained and
enjoyed from:
expulsion of petitioner and petitioners-in-intervention and the Letter-Resolution dated
June 1, 1995; and
2. Barring the enrollment of petitioner and petitioners-in-intervention in the courses
offered at respondent (De La Salle University) and to forthwith allow all said petitioner
and petitioners-in-intervention to enroll and complete their respective courses/degrees
until their graduation thereat.
The Writ of Preliminary Injunction shall take effect upon petitioner and petitioners-inintervention posting an injunctive bond in the amount of P15,000.00 executed in favor of
respondent to the effect that petitioner and petitioners-in-intervention will pay to
respondent all damages that the latter may suffer by reason of the injunction if the Court
will finally decide that petitioner and petitioners-in-intervention are not entitled thereto.
The motion to dismiss and the supplement thereto is denied for lack of merit.
Respondents are directed to file their Answer to the Petition not later than fifteen (15)
days from receipt thereof.
221
SO ORDERED. 33
Despite the said order, private respondent Aguilar was refused enrollment by petitioner
DLSU when he attempted to enroll on September 22, 1995 for the second term of SY
1995-1996. Thus, on September 25, 1995, Aguilar filed with respondent Judge an urgent
motion to cite petitioners (respondents there) in contempt of court. 34 Aguilar also prayed
that petitioners be compelled to enroll him at DLSU in accordance with respondent
Judge's Order dated September 20, 1995. On September 25, 1995, respondent Judge
issued 35 a writ of preliminary injunction, the relevant portion of which reads:
IT IS HEREBY ORDERED by the undersigned of the REGIONAL TRIAL COURT OF
MANILA that until further orders, you the said DE LA SALLE University as well as your
subordinates, agents, representatives, employees and any other person assisting or
acting for or on your behalf, to immediately desist from implementing the Resolution dated
May 3, 1995 ordering the automatic expulsion of petitioner and the intervenors in DLSU,
and the letter-resolution dated June 1, 1995 affirming the said Resolution of May 3, 1995
and to immediately desist from barring the enrolment of petitioner and intervenors in the
courses offered at DLSU and to allow them to enroll and complete their degree courses
until their graduation from said school. 36
On October 16, 1995, petitioner DLSU filed with the CA a petition for certiorari 37 (CAG.R. SP No. 38719) with prayer for a TRO and/or writ of preliminary injunction to enjoin
the enforcement of respondent Judge's September 20, 1995 Order and writ of preliminary
injunction dated September 25, 1995.
On April 12, 1996, the CA granted petitioners' prayer for preliminary injunction.
On May 14, 1996, the CHED issued its questioned Resolution No. 181-96, summarily
disapproving the penalty of expulsion for all private respondents. As for Aguilar, he was
to be reinstated, while other private respondents were to be excluded. 38 The Resolution
states:
RESOLUTION 181-96
RESOLVED THAT THE REQUEST OF THE DE LA SALLE UNIVERSITY (DLSU), TAFT
AVENUE, MANILA FOR THE APPROVAL OF THE PENALTY OF EXPULSION
IMPOSED ON MR. ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, ROBERT R.
VALDES, JR., ALVIN LEE AND RICHARD V. REVERENTE BE, AS IT IS HEREBY IS,
DISAPPROVED.
RESOLVED FURTHER, THAT THE COMMISSION DIRECT THE DLSU TO
IMMEDIATELY EFFECT THE REINSTATEMENT OF MR. AGUILAR AND THE
LOWERING OF THE PENALTY OF MR. JAMES PAUL BUNGUBUNG, MR. ROBER R.
VALDEZ, JR., (sic) MR. ALVIN LEE AND MR. RICHARD V. REVERENTE FROM
EXPULSION TO EXCLUSION. 39
Despite the directive of CHED, petitioner DLSU again prevented private respondent
Aguilar from enrolling and/or attending his classes, prompting his lawyer to write several
demand letters 40 to petitioner DLSU. In view of the refusal of petitioner DLSU to enroll
private respondent Aguilar, CHED wrote a letter dated June 26, 1996 addressed to
petitioner Quebengco requesting that private respondent Aguilar be allowed to continue
attending his classes pending the resolution of its motion for reconsideration of Resolution
No. 181-96. However, petitioner Quebengco refused to do so, prompting CHED to
promulgate an Order dated September 23, 1996 which states:
222
Acting on the above-mentioned request of Mr. Aguilar through counsel enjoining De La

Salle University (DLSU) to comply with CHED Resolution 181-96 (Re: Expulsion Case of
Alvin Aguilar, et al. v. DLSU) directing DLSU to reinstate Mr. Aguilar and finding the urgent
request as meritorious, there being no other plain and speedy remedy available,
considering the set deadline for enrollment this current TRIMESTER, and in order to
prevent further prejudice to his rights as a student of the institution, DLSU, through the
proper school authorities, is hereby directed to allow Mr. Alvin Aguilar to provisionally
enroll, pending the Commission's Resolution of the instant Motion for Reconsideration
filed by DLSU.
SO ORDERED. 41
Notwithstanding the said directive, petitioner DLSU, through petitioner Quebengco, still
refused to allow private respondent Aguilar to enroll. Thus, private respondent Aguilar's
counsel wrote another demand letter to petitioner DLSU. 42
Meanwhile, on June 3, 1996, private respondent Aguilar, using CHED Resolution No.
181-96, filed a motion to dismiss 43 in the CA, arguing that CHED Resolution No. 181-96
rendered the CA case moot and academic.
On July 30, 1996, the CA issued its questioned resolution granting the motion to dismiss
of private respondent Aguilar, disposing thus:
THE FOREGOING CONSIDERED, dismissal of herein petition is hereby directed.
SO ORDERED. 44
On October 15, 1996, the CA issued its resolution denying petitioners' motion for
reconsideration, as follows:
It is obvious to Us that CHED Resolution No. 181-96 is immediately executory in
character, the pendency of a Motion for Reconsideration notwithstanding.
After considering the Opposition and for lack of merit, the Motion for Reconsideration is
hereby denied.
SO ORDERED. 45
On October 28, 1996, petitioners requested transfer of case records to the Department
of Education, Culture and Sports (DECS) from the CHED. 46 Petitioners claimed that it
is the DECS, not CHED, which has jurisdiction over expulsion cases, thus, necessitating
the transfer of the case records of Discipline Case No. 9495-3-25121 to the DECS.
On November 4, 1996, in view of the dismissal of the petition for certiorari in CA-G.R. SP
No. 38719 and the automatic lifting of the writ of preliminary injunction, private respondent
Aguilar filed an urgent motion to reiterate writ of preliminary injunction dated September
25, 1995 before respondent RTC Judge of Manila. 47
On January 7, 1997, respondent Judge issued its questioned order granting private
respondent Aguilar's urgent motion to reiterate preliminary injunction. The pertinent
portion of the order reads:
In light of the foregoing, petitioner Aguilar's urgent motion to reiterate writ of preliminary
injunction is hereby granted, and respondents' motion to dismiss is denied.
223
The writ of preliminary injunction dated September 25, 1995 is declared to be in force and
effect.
Let a copy of this Order and the writ be served personally by the Court's sheriff upon the
respondents at petitioners' expense.
SO ORDERED. 48
Accordingly, private respondent Aguilar was allowed to conditionally enroll in petitioner
DLSU, subject to the continued effectivity of the writ of preliminary injunction dated
September 25, 1995 and to the outcome of Civil Case No. 95-74122.
On February 17, 1997, petitioners filed the instant petition.
On June 15, 1998, We issued a TRO 49 as prayed for by the urgent motion for the
issuance of a TRO 50 dated June 4, 1998 of petitioners, and enjoined respondent Judge
from implementing the writ of preliminary injunction dated September 25, 1995 issued in
Civil Case No. 95-74122, effective immediately and until further orders from this Court.
On March 27, 2006, private respondent Aguilar filed his manifestation 51 stating that he
has long completed his course at petitioner DLSU. He finished and passed all his enrolled
subjects for the second trimester of 1997-1998, as indicated in his transcript of records
52 issued by DLSU. However, despite having completed all the academic requirements
for his course, DLSU has not issued a certificate of completion/graduation in his favor.
Issues
We are tasked to resolve the following issues:
1. Whether it is the DECS or the CHED which has legal authority to review decisions of
institutions of higher learning that impose disciplinary action on their students found
violating disciplinary rules.
2. Whether or not petitioner DLSU is within its rights in expelling private respondents.
2.a Were private respondents accorded due process of law?
2.b Can petitioner DLSU invoke its right to academic freedom?
2.c Was the guilt of private respondents proven by substantial evidence?
3. Whether or not the penalty imposed by DLSU on private respondents is proportionate
to their misdeed.
Our Ruling
Prefatorily, there is merit in the observation of petitioners 53 that while CHED Resolution
No. 181-96 disapproved the expulsion of other private respondents, it nonetheless
authorized their exclusion from petitioner DLSU. However, because of the dismissal of
the CA case, petitioner DLSU is now faced with the spectacle of having two different
directives from the CHED and the respondent Judge CHED ordering the exclusion of
private respondents Bungubung, Reverente, and Valdes, Jr., and the Judge ordering
petitioner DLSU to allow them to enroll and complete their degree courses until their
graduation.
This is the reason We opt to decide the whole case on the merits, brushing aside
technicalities, in order to settle the substantial issues involved. This Court has the power
to take cognizance of the petition at bar due to compelling reasons, and the nature and
importance of the issues raised warrant the immediate exercise of Our jurisdiction. 54
224
This is in consonance with our case law now accorded near-religious reverence that rules
of procedure are but tools designed to facilitate the attainment of justice, such that when
its rigid application tends to frustrate rather than promote substantial justice, this Court
has the duty to suspend their operation. 55
I. It is the CHED, not DECS, which has
the power of supervision and review
over disciplinary cases decided by
Ang CHED, hindi ang DECS, ang may kapangyarihan ng pagsubaybay at pagrepaso sa
mga desisyong pandisiplina ng mga institusyon ng mas mataas na pag-aaral.
Petitioners posit that the jurisdiction and duty to review student expulsion cases, even
those involving students in secondary and tertiary levels, is vested in the DECS not in the
CHED. In support of their stance, petitioners cite Sections 4, 56 15 (2) & (3), 57 54, 58 57
(3) 59 and 70 60 of Batas Pambansa (B.P.) Blg. 232, otherwise known as the "Education
Act of 1982."
According to them, Republic Act (R.A.) No. 7722 did not transfer to the CHED the DECS'
power of supervision/review over expulsion cases involving institutions of higher learning.
They say that unlike B.P. Blg. 232, R.A. No. 7722 makes no reference to the right and
duty of learning institutions to develop moral character and instill discipline among its
students. The clear concern of R.A. No. 7722 in the creation of the CHED was academic,
i.e., the formulation, recommendation, setting, and development of academic plans,
programs and standards for institutions of higher learning. The enumeration of CHED's
powers and functions under Section 8 does not include supervisory/review powers in
student disciplinary cases. The reference in Section 3 to CHED's "coverage" of institutions
of higher education is limited to the powers and functions specified in Section 8. The
Bureau of Higher Education, which the CHED has replaced and whose functions and
responsibilities it has taken over, never had any authority over student disciplinary cases.
We cannot agree.
On May 18, 1994, Congress approved R.A. No. 7722, otherwise known as "An Act
Creating the Commission on Higher Education, Appropriating Funds Thereof and for
other purposes."
Section 3 of the said law, which paved the way for the creation of the CHED, provides:
Section 3. Creation of the Commission on Higher Education. In pursuance of the
abovementioned policies, the Commission on Higher Education is hereby created,
hereinafter referred to as Commission.
The Commission shall be independent and separate from the Department of Education,
Culture and Sports (DECS) and attached to the office of the President for administrative
purposes only. Its coverage shall be both public and private institutions of higher
education as well as degree-granting programs in all post secondary educational
institutions, public and private.
The powers and functions of the CHED are enumerated in Section 8 of R.A. No. 7722.
They include the following:
Sec. 8. Powers and functions of the Commission. The Commission shall have the
following powers and functions:
xxx xxx xxx
225
n) promulgate such rules and regulations and exercise such other powers and functions
as may be necessary to carry out effectively the purpose and objectives of this Act; and
o) perform such other functions as may be necessary for its effective operations and for
the continued enhancement of growth or development of higher education.
Clearly, there is no merit in the contention of petitioners that R.A. No. 7722 did not transfer
to the CHED the DECS' power of supervision/review over expulsion cases involving
First, the foregoing provisions are all-embracing. They make no reservations of powers
to the DECS insofar as institutions of higher learning are concerned. They show that the
authority and supervision over all public and private institutions of higher education, as
well as degree-granting programs in all post-secondary educational institutions, public
and private, belong to the CHED, not the DECS.
Second, to rule that it is the DECS which has authority to decide disciplinary cases
involving students on the tertiary level would render nugatory the coverage of the CHED,
which is "both public and private institutions of higher education as well as degree
granting programs in all post secondary educational institutions, public and private." That
would be absurd.
It is of public knowledge that petitioner DLSU is a private educational institution which
offers tertiary degree programs. Hence, it is under the CHED authority.
Third, the policy of R.A. No. 7722 61 is not only the protection, fostering and promotion
of the right of all citizens to affordable quality education at all levels and the taking of
appropriate steps to ensure that education shall be accessible to all. The law is likewise
concerned with ensuring and protecting academic freedom and with promoting its
exercise and observance for the continued intellectual growth of students, the
advancement of learning and research, the development of responsible and effective
leadership, the education of high-level and middle-level professionals, and the enrichment
of our historical and cultural heritage.
It is thus safe to assume that when Congress passed R.A. No. 7722, its members were
aware that disciplinary cases involving students on the tertiary level would continue to
arise in the future, which would call for the invocation and exercise of institutions of higher
learning of their right to academic freedom.
Fourth, petitioner DLSU cited no authority in its bare claim that the Bureau of Higher
Education, which CHED replaced, never had authority over student disciplinary cases. In
fact, the responsibilities of other government entities having functions similar to those of
the CHEDwere transferred to the CHED. 6 2
Section 77 of the MRPS 63 on the process of review in student discipline cases should
therefore be read in conjunction with the provisions of R.A. No. 7722.
Fifth, Section 18 of R.A. No. 7722 is very clear in stating that "[j]urisdiction over DECSsupervised or chartered state-supported post-secondary degree-granting vocational and
tertiary institutions shall be transferred to the Commission [On Higher Education]." This
provision does not limit or distinguish that what is being transferred to the CHED is merely
the formulation, recommendation, setting and development of academic plans, programs
and standards for institutions of higher learning, as what petitioners would have us believe
as the only concerns of R.A. No. 7722. Ubi lex non distinguit nec nos distinguere
debemus: Where the law does not distinguish, neither should we.
226
To Our mind, this provision, if not an explicit grant of jurisdiction to the CHED, necessarily
includes the transfer to the CHED of any jurisdiction which the DECS might have
possessed by virtue of B.P. Blg. 232 or any other law or rule for that matter.
IIa. Private respondents were accorded
due process of law.
Ang mga private respondents ay nabigyan ng tamang proseso ng batas.
The Due Process Clause in Article III, Section 1 of the Constitution embodies a system
of rights based on moral principles so deeply imbedded in the traditions and feelings of
our people as to be deemed fundamental to a civilized society as conceived by our entire
history. 64 The constitutional behest that no person shall be deprived of life, liberty or
property without due process of law is solemn and inflexible. 65
In administrative cases, such as investigations of students found violating school
discipline, "[t]here are withal minimum standards which must be met before to satisfy the
demands of procedural due process and these are: that (1) the students must be informed
in writing of the nature and cause of any accusation against them; (2) they shall have the
right to answer the charges against them and with the assistance if counsel, if desired;
(3) they shall be informed of the evidence against them; (4) they shall have the right to
adduce evidence in their own behalf; and (5) the evidence must be duly considered by
the investigating committee or official designated by the school authorities to hear and
decide the case." 66
Where a party was afforded an opportunity to participate in the proceedings but failed to
do so, he cannot complain of deprivation of due process. 67 Notice and hearing is the
bulwark of administrative due process, the right to which is among the primary rights that
must be respected even in administrative proceedings. 68 The essence of due process
is simply an opportunity to be heard, or as applied to administrative proceedings, an
opportunity to explain one's side or an opportunity to seek reconsideration of the action
or ruling complained of. 69 So long as the party is given the opportunity to advocate her
cause or defend her interest in due course, it cannot be said that there was denial of due
process. 70
A formal trial-type hearing is not, at all times and in all instances, essential to due process
it is enough that the parties are given a fair and reasonable opportunity to explain their
respective sides of the controversy and to present supporting evidence on which a fair
decision can be based. 71 "To be heard" does not only mean presentation of testimonial
evidence in court one may also be heard through pleadings and where the opportunity
to be heard through pleadings is accorded, there is no denial of due process. 72
Private respondents were duly informed in writing of the charges against them by the
DLSU-CSB Joint Discipline Board through petitioner Sales. They were given the
opportunity to answer the charges against them as they, in fact, submitted their respective
answers. They were also informed of the evidence presented against them as they
attended all the hearings before the Board. Moreover, private respondents were given the
right to adduce evidence on their behalf and they did. Lastly, the Discipline Board
considered all the pieces of evidence submitted to it by all the parties before rendering its
resolution in Discipline Case No. 9495-3-25121.
Private respondents cannot claim that they were denied due process when they were not
allowed to cross-examine the witnesses against them. This argument was already
rejected in Guzman v. National University 73 where this Court held that ". . . the imposition
of disciplinary sanctions requires observance of procedural due process. And it bears
stressing that due process in disciplinary cases involving students does not entail
proceedings and hearings similar to those prescribed for actions and proceedings in
227
courts of justice. The proceedings in student discipline cases may be summary; and cross
examination is not, . . . an essential part thereof."
IIb. Petitioner DLSU, as an institution of
higher learning, possesses academic
freedom which includes determination
of who to admit for study.
Ang petitioner DLSU, bilang institusyon ng mas mataas na pag-aaral, ay nagtataglay ng
kalayaang akademiko na sakop ang karapatang pumili ng mga mag-aaral dito.
Section 5 (2), Article XIV of the Constitution guaranties all institutions of higher learning
academic freedom. This institutional academic freedom includes the right of the school or
college to decide for itself, its aims and objectives, and how best to attain them free from
outside coercion or interference save possibly when the overriding public interest calls for
some restraint. 74 According to present jurisprudence, academic freedom encompasses
the independence of an academic institution to determine for itself (1) who may teach, (2)
what may be taught, (3) how it shall teach, and (4) who may be admitted to study. 75
It cannot be gainsaid that "the school has an interest in teaching the student discipline, a
necessary, if not indispensable, value in any field of learning. By instilling discipline, the
school teaches discipline. Accordingly, the right to discipline the student likewise finds
basis in the freedom "what to teach." 76 Indeed, while it is categorically stated under the
Education Act of 1982 that students have a right "to freely choose their field of study,
subject to existing curricula and to continue their course therein up to graduation," 77
such right is subject to the established academic and disciplinary standards laid down by
the academic institution. Petitioner DLSU, therefore, can very well exercise its academic
freedom, which includes its free choice of students for admission to its school.
IIc. The guilt of private respondents
Bungubung, Reverente and Valdes,
Jr. was proven by substantial evidence.
Ang pagkakasala ng private respondents na sina Bungubung, Reverente at Valdes, Jr.
ay napatunayan ng ebidensiyang substansyal.
As has been stated earlier, private respondents interposed the common defense of alibi.
However, in order that alibi may succeed as a defense, "the accused must establish by
clear and convincing evidence (a) his presence at another place at the time of the
perpetration of the offense and (b) the physical impossibility of his presence at the scene
of the crime." 78
On the other hand, the defense of alibi may not be successfully invoked where the identity
of the assailant has been established by witnesses. 79 Positive identification of accused
where categorical and consistent, without any showing of ill motive on the part of the
eyewitness testifying, should prevail over the alibi and denial of appellants whose
testimonies are not substantiated by clear and convincing evidence. 80 Well-settled is the
rule that denial and alibi, being weak defenses, cannot overcome the positive testimonies
of the offended parties. 81
Courts reject alibi when there are credible eyewitnesses to the crime who can positively
identify the accused. 82 Alibi is an inherently weak defense and courts must receive it
with caution because one can easily fabricate an alibi. 83 Jurisprudence holds that denial,
like alibi, is inherently weak and crumbles in light of positive declarations of truthful
witnesses who testified on affirmative matters that accused were at the scene of the crime
and were the victim's assailants. As between categorical testimonies that ring of truth on
one hand and a bare denial on the other, the former must prevail. 84 Alibi is the weakest
228
of all defenses for it is easy to fabricate and difficult to disprove, and it is for this reason
that it cannot prevail over the positive identification of accused by the witnesses. 85
The required proof in administrative cases, such as in student discipline cases, is neither
proof beyond reasonable doubt nor preponderance of evidence but only substantial
evidence. According to Ang Tibay v. Court of Industrial Relations, 86 it means "such
reasonable evidence as a reasonable mind might accept as adequate to support a
conclusion."
Viewed from the foregoing, We reject the alibi of private respondents Bungubung, Valdes
Jr., and Reverente. They were unable to show convincingly that they were not at the
scene of the crime on March 29, 1995 and that it was impossible for them to have been
there. Moreover, their alibi cannot prevail over their positive identification by the victims.
We hark back to this Court's pronouncement affirming the expulsion of several students
found guilty of hazing:
No one can be so myopic as to doubt that the immediate reinstatement of respondent
students who have been investigated and found guilty by the Disciplinary Board to have
violated petitioner university's disciplinary rules and standards will certainly undermine
the authority of the administration of the school. This we would be most loathe to do.
More importantly, it will seriously impair petitioner university's academic freedom which
has been enshrined in the 1935, 1973 and the present 1987 Constitution. 87
Certainly, private respondents Bungubung, Reverente and Valdes, Jr. do not deserve to
claim a venerable institution as their own, for they may foreseeably cast a malevolent
influence on the students currently enrolled, as well as those who come after them. 88 It
must be borne in mind that universities are established, not merely to develop the intellect
and skills of the studentry, but to inculcate lofty values, ideals and attitudes; nay, the
development, or flowering if you will, of the total man. 89
As for private respondent Aguilar, however, We are inclined to give credence to his alibi
that he was at Camp Crame in Quezon City at the time of the incident in question on
March 29, 1995. This claim was amply corroborated by the certification that he submitted
before the DLSU-CSB Joint Discipline Board, to wit:
CERTIFICATION
TO WHOM THIS MAY CONCERN:
We, the undersigned, hereby declare and affirm by way of this Certification that sometime
on March 29, 1995, at about and between 4:30 P.M. and 5:30 P.M., we were together
with Alvin A. Aguilar, at Kiangan Hall, inside Camp Crame, Quezon City, meeting in
connection with an affair of our class known as Class 7, Batch 89 of the Philippine
Constabulary discussing on the proposed sponsorship of TAU GAMMA PHI from said
Batch '89 affair.
That the meeting was terminated at about 6:30 P.M. that evening and Alvin Aguilar had
asked our permission to leave and we saw him leave Camp Crame, in his car with the
driver.
April 18, 1995, Camp Crame, Quezon City. 90
The said certification was duly signed by PO3 Nicanor R. Faustino (Anti-Organized Crime
CIC, NCR), PO3 Alejandro D. Deluviar (ODITRM, Camp Crame, Quezon City), PO2
Severino C. Filler (TNTSC, Camp Crame, Quezon City), and PO3 Ireneo M. Desesto
229
(Supply Center, PNPLSS). The rule is that alibi assumes significance or strength when it
is amply corroborated by credible and disinterested witnesses. 91 It is true that alibi is a
weak defense which an accused can easily fabricate to escape criminal liability. But
where the prosecution evidence is weak, and betrays lack of credibility as to the
identification of defendant, alibi assumes commensurate strength. This is but consistent
with the presumption of innocence in favor of accused. 92
Alibi is not always undeserving of credit, for there are times when accused has no other
possible defense for what could really be the truth as to his whereabouts at the crucial
time, and such defense may, in fact, tilt the scales of justice in his favor. 93
III. The penalty of expulsion imposed by DLSU
on private respondents is disproportionate
to their misdeed.
Ang parusang expulsion na ipinataw ng DLSU sa private respondents ay hindi angkop sa
kanilang pagkakasala.
It is true that schools have the power to instill discipline in their students as subsumed in
their academic freedom and that "the establishment of rules governing university-student
relations, particularly those pertaining to student discipline, may be regarded as vital, not
merely to the smooth and efficient operation of the institution, but to its very survival." 94
This power, however, does not give them the untrammeled discretion to impose a penalty
which is not commensurate with the gravity of the misdeed. If the concept of
proportionality between the offense committed and the sanction imposed is not followed,
an element of arbitrariness intrudes. That would give rise to a due process question. 95
We agree with respondent CHED that under the circumstances, the penalty of expulsion
is grossly disproportionate to the gravity of the acts committed by private respondents
Bungubung, Reverente, and Valdes, Jr. Each of the two mauling incidents lasted only for
few seconds and the victims did not suffer any serious injury. Disciplinary measures
especially where they involve suspension, dismissal or expulsion, cut significantly into the
future of a student. They attach to him for life and become a mortgage of his future, hardly
redeemable in certain cases. Officials of colleges and universities must be anxious to
protect it, conscious of the fact that, appropriately construed, a disciplinary action should
be treated as an educational tool rather than a punitive measure. 96
Accordingly, We affirm the penalty of exclusion 97 only, not expulsion, 98 imposed on
them by the CHED. As such, pursuant to Section 77 (b) of the MRPS, petitioner DLSU
may exclude or drop the names of the said private respondents from its rolls for being
undesirable, and transfer credentials immediately issued.
WHEREFORE, the petition is PARTIALLY GRANTED. The Court of Appeals Resolutions
dated July 30, 1996 and dated October 15, 1996, and Regional Trial Court of Manila,
Branch 36, Order dated January 7, 1997 are ANNULLED AND SET ASIDE, while CHED
Resolution 181-96 dated May 14, 1996 is AFFIRMED.
Petitioner DLSU is ordered to issue a certificate of completion/graduation in favor of
private respondent Aguilar. On the other hand, it may exclude or drop the names of private
respondents Bungubung, Reverente, and Valdes, Jr. from its rolls, and their transfer
credentials immediately issued.
SO ORDERED.
Ynares-Santiago, Quisumbing,* Chico-Nazario and Velasco, Jr.,** JJ., concur.
||| (De La Salle University, Inc. v. Court of Appeals, G.R. No. 127980, [December 19,
2007], 565 PHIL 330-365)
230
3. ROMUALDEZ VS. COMELEC 573 SCRA 639 (2008)

EN BANC
[G.R. No. 167011. December 11, 2008.]
SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R. ROMUALDEZ, petitioners, vs.
COMMISSION ON ELECTIONS and DENNIS GARAY, respondents.
RESOLUTION
CHICO-NAZARIO, J p:
For resolution is the Motion for Reconsideration filed by petitioner Spouses Carlos
Romualdez and Erlinda Romualdez on 26 May 2008 from the Decision of this Court dated
30 April 2008, affirming the Resolutions, dated 11 June 2004 and 27 January 2005 of the
COMELEC En Banc. TDCcAE
We find that petitioner has not raised substantially new grounds to justify the
reconsideration sought. Instead, petitioner presents averments that are mere rehashes
of arguments already considered by the Court. There is, thus, no cogent reason to warrant
a reconsideration of this Court's Decision.
Similarly, we reject the contentions put forth by esteemed colleagues Mr. Justice Dante
O. Tinga in his Dissent, dated 2 September 2008, which are also mere reiterations of his
earlier dissent against the majority opinion. Mr. Justice Tinga's incessant assertions
proceed from the wrong premise. To be clear, this Court did not intimate that penal
statutes are beyond scrutiny. In our Decision, dated 30 April 2008, this Court emphasized
the critical limitations by which a criminal statute may be challenged. We drew a lucid
boundary between an "on-its-face" invalidation and an "as applied" challenge.
Unfortunately, this is a distinction which Mr. Justice Tinga has refused to understand. Let
it be underscored that "on-its-face" invalidation of penal statutes, as is sought to be done
by petitioners in this case, may not be allowed. Thus, we said:
The void-for-vagueness doctrine holds that a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its application.
However, this Court has imposed certain limitations by which a criminal statute, as in the
challenged law at bar, may be scrutinized. This Court has declared that facial invalidation
or an "on-its-face" invalidation of criminal statutes is not appropriate. We have so
enunciated in no uncertain terms in Romualdez v. Sandiganbayan, thus:
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are called
in American law, First Amendment cases. They cannot be made to do service when what
is involved is a criminal statute. With respect to such statute, the established rule is that
'one to whom application of a statute is constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken as applying to other persons or other
situations in which its application might be unconstitutional'. As has been pointed out,
'vagueness challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a matter of due process
typically are invalidated [only] 'as applied' to a particular defendant.'" (underscoring
supplied) EDCcaS
"To this date, the Court has not declared any penal law unconstitutional on the ground of
ambiguity". While mentioned in passing in some cases, the void-for-vagueness concept
has yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad, the
231
Bookkeeping Act was found unconstitutional because it violated the equal protection
clause, not because it was vague. Adiong v. Comelec decreed as void a mere Comelec
Resolution, not a statute. Finally, Santiago v. Comelec held that a portion of RA 6735 was
unconstitutional because of undue delegation of legislative powers, not because of
vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal
of parties whose cases may not have even reached the courts. Such invalidation would
constitute a departure from the usual requirement of "actual case and controversy" and
permit decisions to be made in a sterile abstract context having no factual concreteness.
In Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these
words:
"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided."
For this reason, generally disfavored is an on-its-face invalidation of statutes, described
as a "manifestly strong medicine" to be employed "sparingly and only as a last resort." In
determining the constitutionality of a statute, therefore, its provisions that have allegedly
been violated must be examined in the light of the conduct with which the defendant has
been charged. (Emphasis supplied.) 1
Neither does the listing by Mr. Justice Tinga of what he condemns as offenses under
Republic Act No. 8189 convince this Court to overturn its ruling. What is crucial in this
case is the rule set in our case books and precedents that a facial challenge is not the
proper avenue to challenge the statute under consideration. In our Decision of 30 April
2008, we enunciated that "the opinions of the dissent which seek to bring to the fore the
purported ambiguities of a long list of provisions in Republic Act No. 8189 can be deemed
as a facial challenge." 2 On this matter, we held: acADIT
An appropriate "as applied" challenge in the instant Petition should be limited only to
Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No. 8189 the
provisions upon which petitioners are charged. An expanded examination of the law
covering provisions which are alien to petitioners' case would be antagonistic to the
rudiment that for judicial review to be exercised, there must be an existing case or
controversy that is appropriate or ripe for determination, and not conjectural or
anticipatory. 3
In conclusion, I reiterate that the doctrine embodied in Romualdez and Estrada remains
good law. The rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a
facial challenge to a penal statute is permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed, would effectively go
against the grain of the doctrinal requirement of an existing and concrete controversy
before judicial power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the court to
consider third parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test will impair the State's
ability to deal with crime. If warranted, there would be nothing that can hinder an accused
from defeating the State's power to prosecute on a mere showing that, as applied to third
232
parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as
applied to him.
As structured, Section 45 enumerates acts deemed election offenses under Republic Act
No. 8189. The evident intent of the legislature in including in the catena of election
offenses the violation of any of the provisions of Republic Act No. 8189 is to subsume as
punishable, not only the commission of proscribed acts, but also the omission of acts
enjoined to be observed. On this score, the declared policy of Republic Act No. 8189 is
illuminating. The law articulates the policy of the State to systematize the present method
of registration in order to establish a clean, complete, permanent and updated list of
voters. cCESaH
In People v. Gatchalian, the Court had the occasion to rule on the validity of the provision
of the Minimum Wage Law, which in like manner speaks of a willful violation of "any of
the provisions of this Act". This Court upheld the assailed law, and in no uncertain terms
declared that the provision is all-embracing, and the same must include what is enjoined
in the Act which embodies the very fundamental purpose for which the law has been
adopted.
Finally, as the records would show, petitioners managed to set up an intelligent defense
against the informations filed below. By clearly enunciating their defenses against the
accusations hurled at them and denying their commission thereof, petitioners' allegation
of vagueness must necessarily be rejected. Petitioners failed to overcome the heavy
presumption of constitutionality in favor of the law. The constitutionality must prevail in
the absence of substantial grounds for overthrowing the same.
The phraseology in Section 45 (j) has been employed by Congress in a number of laws
which have not been declared unconstitutional: SEIacA
1) The Cooperative Code
Section 124 (4) of Republic Act No. 6938 reads:
"Any violation of any provision of this Code for which no penalty is imposed shall be
punished by imprisonment of not less than six (6) months nor more than one (1) year and
a fine of not less than One Thousand Pesos (P1,000.00) or both at the discretion of the
Court."
2) The Indigenous Peoples Rights Act
Section 72 of Republic Act No. 8371 reads in part:
"Any person who commits violation of any of the provisions of this Act, such as, but not
limited to . . ."
3) The Retail Trade Liberalization Act
Section 12, Republic Act No. 8762, reads:
"Any person who would be found guilty of violation of any provisions of this Act shall be
punished by imprisonment of not less than six (6) years and one (1) day but not more
than eight (8) years, and a fine of at least One Million (P1,000,000.00) but not more than
Twenty Million (P20,000,000.00).
For reasons so stated, we deny the Motion for Reconsideration.

233
SO ORDERED.
Ynares-Santiago, Azcuna, Velasco, Jr., Reyes and Brion, JJ., concur.
Puno, C.J., Quisumbing and Nachura, JJ., join in J. Tinga's dissenting opinion.
Carpio, J., I dissent and I reiterate my dissent of April 30, 2008.
Austria-Martinez, J., I join Justices Tinga and Carpio in their existing opinion.
Corona, J., I certify that J. Corona concurred with the resolution of J. Nazario RSP.
Carpio-Morales, J., my position concurring with the dissent of Justices Carpio and Tinga
remains.
Tinga, J., please see dissenting opinion.
Leonardo-de Castro, J., please see concurring opinion.
||| (Spouses Romualdez v. Commission on Elections, G.R. No. 167011, [December 11,
2008], 594 PHIL 305-343)
4. GARCILLANO VS. COMMITTEES 575 SCRA 170 (2008)
EN BANC
[G.R. No. 170338. December 23, 2008.]
VIRGILIO O. GARCILLANO, petitioner, vs. THE HOUSE OF REPRESENTATIVES
COMMITTEES ON PUBLIC INFORMATION, PUBLIC ORDER AND SAFETY,
NATIONAL DEFENSE AND SECURITY, INFORMATION AND COMMUNICATIONS
TECHNOLOGY, and SUFFRAGE AND ELECTORAL REFORMS, respondents.
[G.R. No. 179275. December 23, 2008.]
SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners, vs. THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE
SENATE PRESIDENT THE HONORABLE MANUEL VILLAR, respondent.
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention.
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G.
BIAZON, PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL,
and ANTONIO F. TRILLANES, respondents-intervenors.
DECISION
NACHURA, J p:
More than three years ago, tapes ostensibly containing a wiretapped conversation
purportedly between the President of the Philippines and a high-ranking official of the
Commission on Elections (COMELEC) surfaced. They captured unprecedented public
attention and thrust the country into a controversy that placed the legitimacy of the present
administration on the line, and resulted in the near-collapse of the Arroyo government.
The tapes, notoriously referred to as the "Hello Garci" tapes, allegedly contained the
President's instructions to COMELEC Commissioner Virgilio Garcillano to manipulate in
234
her favor results of the 2004 presidential elections. These recordings were to become the
subject of heated legislative hearings conducted separately by committees of both
Houses of Congress. 1 cCSDTI
In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader
Francis G. Escudero delivered a privilege speech, "Tale of Two Tapes", and set in motion
a congressional investigation jointly conducted by the Committees on Public Information,
Public Order and Safety, National Defense and Security, Information and
Communications Technology, and Suffrage and Electoral Reforms (respondent House
Committees). During the inquiry, several versions of the wiretapped conversation
emerged. But on July 5, 2005, National Bureau of Investigation (NBI) Director Reynaldo
Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel Ong
submitted to the respondent House Committees seven alleged "original" tape recordings
of the supposed three-hour taped conversation. After prolonged and impassioned debate
by the committee members on the admissibility and authenticity of the recordings, the
tapes were eventually played in the chambers of the House. 2
On August 3, 2005, the respondent House Committees decided to suspend the hearings
indefinitely. Nevertheless, they decided to prepare committee reports based on the said
recordings and the testimonies of the resource persons. 3
Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with
this Court a Petition for Prohibition and Injunction, with Prayer for Temporary Restraining
Order and/or Writ of Preliminary Injunction 4 docketed as G.R. No. 170338. He prayed
that the respondent House Committees be restrained from using these tape recordings
of the "illegally obtained" wiretapped conversations in their committee reports and for any
other purpose. He further implored that the said recordings and any reference thereto be
ordered stricken off the records of the inquiry, and the respondent House Committees
directed to desist from further using the recordings in any of the House proceedings. 5
Without reaching its denouement, the House discussion and debates on the "Garci tapes"
abruptly stopped. AECacS
After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering
issue with a privilege speech, "The Lighthouse that Brought Darkness". In his discourse,
Senator Lacson promised to provide the public "the whole unvarnished truth the what's,
when's, where's, who's and why's" of the alleged wiretap, and sought an inquiry into the
perceived willingness of telecommunications providers to participate in nefarious
wiretapping activities.
On motion of Senator Francis Pangilinan, Senator Lacson's speech was referred to the
Senate Committee on National Defense and Security, chaired by Senator Rodolfo Biazon,
who had previously filed two bills 6 seeking to regulate the sale, purchase and use of
wiretapping equipment and to prohibit the Armed Forces of the Philippines (AFP) from
performing electoral duties. 7
In the Senate's plenary session the following day, a lengthy debate ensued when Senator
Richard Gordon aired his concern on the possible transgression of Republic Act (R.A.)
No. 4200 8 if the body were to conduct a legislative inquiry on the matter. On August 28,
2007, Senator Miriam Defensor-Santiago delivered a privilege speech, articulating her
considered view that the Constitution absolutely bans the use, possession, replay or
communication of the contents of the "Hello Garci" tapes. However, she recommended a
legislative investigation into the role of the Intelligence Service of the AFP (ISAFP), the
Philippine National Police or other government entities in the alleged illegal wiretapping
of public officials. 9
235
On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired

justices of the Court of Appeals, filed before this Court a Petition for Prohibition with
Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary
Injunction, 10 docketed as G.R. No. 179275, seeking to bar the Senate from conducting
its scheduled legislative inquiry. They argued in the main that the intended legislative
inquiry violates R.A. No. 4200 and Section 3, Article III of the Constitution. 11
As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings
on the "Hello Garci" tapes on September 7, 12 17 13 and October 1, 14 2007.
Intervening as respondents, 15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C.
Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S.
Madrigal and Antonio F. Trillanes filed their Comment 16 on the petition on September
25, 2007. aAIcEH
The Court subsequently heard the case on oral argument. 17
On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the
resource persons summoned by the Senate to appear and testify at its hearings, moved
to intervene as petitioner in G.R. No. 179275. 18
On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275.
19
It may be noted that while both petitions involve the "Hello Garci" recordings, they have
different objectives the first is poised at preventing the playing of the tapes in the House
and their subsequent inclusion in the committee reports, and the second seeks to prohibit
and stop the conduct of the Senate inquiry on the wiretapped conversation.
The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No.
179275.
I
Before delving into the merits of the case, the Court shall first resolve the issue on the
parties' standing, argued at length in their pleadings.
In Tolentino v. COMELEC, 20 we explained that "'[l]egal standing' or locus standi refers
to a personal and substantial interest in a case such that the party has sustained or will
sustain direct injury because of the challenged governmental act . . .," thus,
generally, a party will be allowed to litigate only when (1) he can show that he has
personally suffered some actual or threatened injury because of the allegedly illegal
conduct of the government; (2) the injury is fairly traceable to the challenged action; and
(3) the injury is likely to be redressed by a favorable action. 21
The gist of the question of standing is whether a party has "alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions". 22 HTcDEa
However, considering that locus standi is a mere procedural technicality, the Court, in
recent cases, has relaxed the stringent direct injury test. David v. Macapagal-Arroyo 23
articulates that a "liberal policy has been observed, allowing ordinary citizens, members
of Congress, and civic organizations to prosecute actions involving the constitutionality or
validity of laws, regulations and rulings". 24 The fairly recent Chavez v. Gonzales 25 even
permitted a non-member of the broadcast media, who failed to allege a personal stake in
the outcome of the controversy, to challenge the acts of the Secretary of Justice and the
National Telecommunications Commission. The majority, in the said case, echoed the
236
current policy that "this Court has repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving serious legal questions that
greatly impact on public interest, in keeping with the Court's duty under the 1987
Constitution to determine whether or not other branches of government have kept
themselves within the limits of the Constitution and the laws, and that they have not
abused the discretion given to them". 26
In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by
alleging that he is the person alluded to in the "Hello Garci" tapes. Further, his was publicly
identified by the members of the respondent committees as one of the voices in the
recordings. 27 Obviously, therefore, petitioner Garcillano stands to be directly injured by
the House committees' actions and charges of electoral fraud. The Court recognizes his
standing to institute the petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that
they are concerned citizens, taxpayers, and members of the IBP. They are of the firm
conviction that any attempt to use the "Hello Garci" tapes will further divide the country.
They wish to see the legal and proper use of public funds that will necessarily be defrayed
in the ensuing public hearings. They are worried by the continuous violation of the laws
and individual rights, and the blatant attempt to abuse constitutional processes through
the conduct of legislative inquiries purportedly in aid of legislation. 28
Intervenor Sagge alleges violation of his right to due process considering that he is
summoned to attend the Senate hearings without being apprised not only of his rights
therein through the publication of the Senate Rules of Procedure Governing Inquiries in
Aid of Legislation, but also of the intended legislation which underpins the investigation.
He further intervenes as a taxpayer bewailing the useless and wasteful expenditure of
public funds involved in the conduct of the questioned hearings. 29 CAaSHI
Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws
and that intervenor Sagge asserts his constitutional right to due process, 30 they satisfy
the requisite personal stake in the outcome of the controversy by merely being citizens of
the Republic.
Following the Court's ruling in Francisco, Jr. v. The House of Representatives, 31 we find
sufficient petitioners Ranada's and Agcaoili's and intervenor Sagge's allegation that the
continuous conduct by the Senate of the questioned legislative inquiry will necessarily
involve the expenditure of public funds. 32 It should be noted that in Francisco, rights
personal to then Chief Justice Hilario G. Davide, Jr. had been injured by the alleged
unconstitutional acts of the House of Representatives, yet the Court granted standing to
the petitioners therein for, as in this case, they invariably invoked the vindication of their
own rights as taxpayers, members of Congress, citizens, individually or in a class suit,
and members of the bar and of the legal profession which were also supposedly
violated by the therein assailed unconstitutional acts. 33
Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and
intervenor Sagge advance constitutional issues which deserve the attention of this Court
in view of their seriousness, novelty and weight as precedents. The issues are of
transcendental and paramount importance not only to the public but also to the Bench
and the Bar, and should be resolved for the guidance of all. 34
Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in
prior cases climaxing in the more recent case of Chavez, the Court recognizes the legal
standing of petitioners Ranada and Agcaoili and intervenor Sagge. cHATSI
237
II
The Court, however, dismisses G.R. No. 170338 for being moot and academic.
Repeatedly stressed in our prior decisions is the principle that the exercise by this Court
of judicial power is limited to the determination and resolution of actual cases and
controversies. 35 By actual cases, we mean existing conflicts appropriate or ripe for
judicial determination, not conjectural or anticipatory, for otherwise the decision of the
Court will amount to an advisory opinion. The power of judicial inquiry does not extend to
hypothetical questions because any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions unrelated to actualities. 36 Neither
will the Court determine a moot question in a case in which no practical relief can be
granted. A case becomes moot when its purpose has become stale. 37 It is unnecessary
to indulge in academic discussion of a case presenting a moot question as a judgment
thereon cannot have any practical legal effect or, in the nature of things, cannot be
enforced. 38
In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the
issuance of an injunctive writ to prohibit the respondent House Committees from playing
the tape recordings and from including the same in their committee report. He likewise
prays that the said tapes be stricken off the records of the House proceedings. But the
Court notes that the recordings were already played in the House and heard by its
members. 39 There is also the widely publicized fact that the committee reports on the
"Hello Garci" inquiry were completed and submitted to the House in plenary by the
respondent committees. 40 Having been overtaken by these events, the Garcillano
petition has to be dismissed for being moot and academic. After all, prohibition is a
preventive remedy to restrain the doing of an act about to be done, and not intended to
provide a remedy for an act already accomplished. 41
III
As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be
allowed to continue with the conduct of the questioned legislative inquiry without duly
published rules of procedure, in clear derogation of the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the
House of Representatives, or any of its respective committees may conduct inquiries in
aid of legislation in accordance with its duly published rules of procedure." The requisite
of publication of the rules is intended to satisfy the basic requirements of due process. 42
Publication is indeed imperative, for it will be the height of injustice to punish or otherwise
burden a citizen for the transgression of a law or rule of which he had no notice
whatsoever, not even a constructive one. 43 What constitutes publication is set forth in
Article 2 of the Civil Code, which provides that "[l]aws shall take effect after 15 days
following the completion of their publication either in the Official Gazette, or in a
newspaper of general circulation in the Philippines." 44 EScaIT
The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument
that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been
published in newspapers of general circulation only in 1995 and in 2006. 45 With respect
to the present Senate of the 14th Congress, however, of which the term of half of its
members commenced on June 30, 2007, no effort was undertaken for the publication of
these rules when they first opened their session.
Recently, the Court had occasion to rule on this very same question. In Neri v. Senate
Committee on Accountability of Public Officers and Investigations, 46 we said:
Fourth, we find merit in the argument of the OSG that respondent Committees likewise
violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in
accordance with the "duly published rules of procedure". We quote the OSG's
explanation:
238
The phrase "duly published rules of procedure" requires the Senate of every Congress to
publish its rules of procedure governing inquiries in aid of legislation because every
Senate is distinct from the one before it or after it. Since Senatorial elections are held
every three (3) years for one-half of the Senate's membership, the composition of the
Senate also changes by the end of each term. Each Senate may thus enact a different
set of rules as it may deem fit. Not having published its Rules of Procedure, the subject
hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally
infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling
with the following rationalization: CcSEIH
The present Senate under the 1987 Constitution is no longer a continuing legislative body.
The present Senate has twenty-four members, twelve of whom are elected every three
years for a term of six years each. Thus, the term of twelve Senators expires every three
years, leaving less than a majority of Senators to continue into the next Congress. The
1987 Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute
a quorum to do business". Applying the same reasoning in Arnault v. Nazareno, the
Senate under the 1987 Constitution is not a continuing body because less than majority
of the Senators continue into the next Congress. The consequence is that the Rules of
Procedure must be republished by the Senate after every expiry of the term of twelve
Senators. 47
The subject was explained with greater lucidity in our Resolution 48 (On the Motion for
Reconsideration) in the same case, viz.:
On the nature of the Senate as a "continuing body", this Court sees fit to issue a
clarification. Certainly, there is no debate that the Senate as an institution is "continuing",
as it is not dissolved as an entity with each national election or change in the composition
of its members. However, in the conduct of its day-to-day business the Senate of each
Congress acts separately and independently of the Senate of the Congress before it. The
Rules of the Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next
session in the same status.
All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if present for the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills
and even legislative investigations, of the Senate of a particular Congress are considered
terminated upon the expiration of that Congress and it is merely optional on the Senate
of the succeeding Congress to take up such unfinished matters, not in the same status,
but as if presented for the first time. The logic and practicality of such a rule is readily
apparent considering that the Senate of the succeeding Congress (which will typically
have a different composition as that of the previous Congress) should not be bound by
the acts and deliberations of the Senate of which they had no part. If the Senate is a
continuing body even with respect to the conduct of its business, then pending matters
will not be deemed terminated with the expiration of one Congress but will, as a matter of
course, continue into the next Congress with the same status. HSCAIT
239
This dichotomy of the continuity of the Senate as an institution and of the opposite nature
of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the
Senate's main rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion which should be presented at
least one day before its consideration, and the vote of the majority of the Senators present
in the session shall be required for its approval. DCTSEA
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in
force until they are amended or repealed.
Section 136 of the Senate Rules quoted above takes into account the new composition
of the Senate after an election and the possibility of the amendment or revision of the
Rules at the start of each session in which the newly elected Senators shall begin their
term.
However, it is evident that the Senate has determined that its main rules are intended to
be valid from the date of their adoption until they are amended or repealed. Such
language is conspicuously absent from the Rules. The Rules simply state "(t)hese Rules
shall take effect seven (7) days after publication in two (2) newspapers of general
circulation." The latter does not explicitly provide for the continued effectivity of such rules
until they are amended or repealed. In view of the difference in the language of the two
sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would
continue into the next Congress. The Senate of the next Congress may easily adopt
different rules for its legislative inquiries which come within the rule on unfinished
business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be
conducted in accordance with the duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules for its legislative inquiries in each
Congress or otherwise make the published rules clearly state that the same shall be
effective in subsequent Congresses or until they are amended or repealed to sufficiently
put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be
effective even in the next Congress, it could have easily adopted the same language it
had used in its main rules regarding effectivity.
Respondents justify their non-observance of the constitutionally mandated publication by
arguing that the rules have never been amended since 1995 and, despite that, they are
published in booklet form available to anyone for free, and accessible to the public at the
Senate's internet web page. 49 HIESTA
The Court does not agree. The absence of any amendment to the rules cannot justify the
Senate's defiance of the clear and unambiguous language of Section 21, Article VI of the
240
Constitution. The organic law instructs, without more, that the Senate or its committees
may conduct inquiries in aid of legislation only in accordance with duly published rules of
procedure, and does not make any distinction whether or not these rules have undergone
amendments or revision. The constitutional mandate to publish the said rules prevails
over any custom, practice or tradition followed by the Senate.
Justice Carpio's response to the same argument raised by the respondents is illuminating:
The publication of the Rules of Procedure in the website of the Senate, or in pamphlet
form available at the Senate, is not sufficient under the Taada v. Tuvera ruling which
requires publication either in the Official Gazette or in a newspaper of general circulation.
The Rules of Procedure even provide that the rules "shall take effect seven (7) days after
publication in two (2) newspapers of general circulation", precluding any other form of
publication. Publication in accordance with Taada is mandatory to comply with the due
process requirement because the Rules of Procedure put a person's liberty at risk. A
person who violates the Rules of Procedure could be arrested and detained by the
Senate.
The invocation by the respondents of the provisions of R.A. No. 8792, 50 otherwise known
as the Electronic Commerce Act of 2000, to support their claim of valid publication through
the internet is all the more incorrect. R.A. 8792 considers an electronic data message or
an electronic document as the functional equivalent of a written document only for
evidentiary purposes. 51 In other words, the law merely recognizes the admissibility in
evidence (for their being the original) of electronic data messages and/or electronic
documents. 52 It does not make the internet a medium for publishing laws, rules and
regulations.
Given this discussion, the respondent Senate Committees, therefore, could not, in
violation of the Constitution, use its unpublished rules in the legislative inquiry subject of
these consolidated cases. The conduct of inquiries in aid of legislation by the Senate has
to be deferred until it shall have caused the publication of the rules, because it can do so
only "in accordance with its duly published rules of procedure". ECaSIT
Very recently, the Senate caused the publication of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin
and Malaya. While we take judicial notice of this fact, the recent publication does not cure
the infirmity of the inquiry sought to be prohibited by the instant petitions. Insofar as the
consolidated cases are concerned, the legislative investigation subject thereof still could
not be undertaken by the respondent Senate Committees, because no published rules
governed it, in clear contravention of the Constitution.
With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues
raised in the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R.
No. 179275 is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the
Republic of the Philippines and/or any of its committees from conducting any inquiry in
aid of legislation centered on the "Hello Garci" tapes.
SO ORDERED.
Quisumbing, Carpio, Tinga, Chico-Nazario, Velasco, Jr., Leonardo-de Castro and Brion,
JJ., concur.
Puno, C.J., pls. see dissent.
241
Ynares-Santiago, Austria-Martinez, Carpio-Morales and Azcuna, JJ., join the dissent of

Chief Justice Puno.
Corona, J., is on leave.
Reyes, J., see concurring and dissenting opinion.
||| (Garcillano v. House of Representatives Committees on Public Information, G.R. No.
170338, 179275, [December 23, 2008], 595 PHIL 775-844)
5. PLACIDO VS. NLRC 600 SCRA 697 (2009)
SECOND DIVISION
[G.R. No. 180888. September 18, 2009.]
ROLANDO PLACIDO and EDGARDO CARAGAY, petitioners, vs. NATIONAL LABOR
RELATIONS COMMISSION and PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, INCORPORATED, respondents.
DECISION
CARPIO MORALES, ** J p:
Petitioners Rolando Placido (Placido) and Edgardo Caragay (Caragay) had been
employed since January 22, 1981 and June 1, 1983, respectively, both as cable splicers
by respondent Philippine Long Distance Telephone Company, Incorporated (PLDT).
It appears that since August 2000, PLDT had been receiving reports of theft and
destruction of its cables. 1 On March 13, 2001, PLDT Duty Inspector Ricardo Mojica
(Mojica) and PLDT Security Guard/Driver Mark Anthony Cruto (Cruto), responding to a
report that cables were being stripped and burned in one of the residences along Alley 2
Street, Project 6, Quezon City, proceeded to the said area where they saw petitioners'
service vehicle parked infront of the house at No. 162. They likewise saw petitioners
stripping and burning cables inside the compound of the house which turned out to belong
to Caragay's mother. With the assistance of police and barangay officials, PLDT
recovered the cables bearing the "PLDT" marking.
The incident spawned the filing, on complaint of PLDT, of an Information for Qualified
Theft against petitioners before the Regional Trial Court (RTC) of Quezon City, docketed
as Criminal Case No. 99467. ESDHCa
In a related move, PLDT required petitioners to explain within 72 hours why no severe
disciplinary action should be taken against them for Serious Misconduct and Dishonesty.
2 After several requests for extension to submit their explanations, petitioners submitted
a joint explanation 3 on June 11, 2001 denying the charges against them. By their claim,
they were on their way back from the house of one Jabenz Quezada (Quezada) from
whom they were inquiring about a vehicle when they were detained by Mojica.
On petitioners' request, a formal hearing was scheduled. Their request for a copy of the
Security Investigation was denied, however, on the ground that they are only entitled to
"be informed of the charges, and they cannot demand for the report as it is still on the
confidential stage".
During the June 25, 2001 formal hearing scheduled by PLDT, representatives from
petitioners' union Manggagawa ng Komunikasyon sa Pilipinas (MKP) were present. As
petitioners' counsel could not attend the hearing due to a previously scheduled hearing
at the RTC Makati, petitioners requested for another setting 5 but it was denied.
Petitioners were, however, given a non-extendible period of three days to submit their
evidence. 6 HcSaTI
Mojica testified during the hearing that when petitioners saw him as they were stripping
and burning the cables, they fled but surfaced thirty minutes later from Alley 6 Street
242
wearing different clothes; and that according to Rodolfo R. Anor, PLDT Work Order
Supervisor, the cables could be dead cables that were not recovered by contractors. 7
Petitioners' counsel later reiterated the request for a setting of a hearing and an audiotape
of the June 25, 2001 hearing, but the same was denied. A third time request for another
hearing was likewise denied. 9
On May 17, 2002, PLDT sent notices of termination 10 to petitioners, prompting them to
file on May 24, 2002 a complaint 11 for illegal dismissal before the Labor Arbiter.
By Decision of January 12, 2004, Labor Arbiter Catalino R. Laderas held that petitioners
were illegally dismissed, there being no provision in PLDT's rules and regulations that
stripping and burning of PLDT cables and wires constitute Serious Misconduct and
Dishonesty; that PLDT's seeming lack of urgency in taking any disciplinary action against
petitioners negates the charges; 12 and that dismissal is too harsh, given petitioners'
years of service and lack of previous derogatory record.
On appeal, 13 the National Labor Relations Commission (NLRC), by Decision dated
February 28, 2005, reversed the Labor Arbiter's Decision and dismissed petitioners'
complaint for lack of merit, 14 it holding that they were validly dismissed for just cause
"theft of company property". 15
In brushing aside petitioners' disclaimer of the acts attributed to them, the NLRC noted
that, inter alia, they failed to present any affidavit of Quezada to prove that they were
indeed at his house inquiring about a vehicle. ICESTA
Petitioners appealed to the Court of Appeals.
In the meantime or on February 15, 2007, Branch 104 of the Quezon City RTC acquitted
petitioners in Criminal Case No. 99467 on the ground of reasonable doubt, it holding that
the prosecution failed to prove that the cables were in fact stolen from PLDT. 16
By Decision of September 28, 2007, the appellate court affirmed the NLRC Decision, 17
it holding that since the cables bore the "PLDT" marking, they were presumed to be
owned by PLDT, hence, the burden of evidence shifted on petitioners to prove that they
were no longer owned by PLDT, but they failed.
Ruling out petitioners' claim that they were denied due process, the appellate court held
that they were given ample opportunity to defend themselves during the administrative
hearing during which they were furnished with written invitations for their appearance
before the investigating unit on several dates, but they refused to submit themselves to
the investigation. Petitioners' motion for reconsideration having been denied by
Resolution 18 of December 17, 2007, the present petition was filed. 19
Petitioners insist that the presence of the "PLDT" marking on the cables does not prove
that PLDT owned them at the time. They aver that PLDT disposes of used and
unserviceable materials, including cables and telephone wires which had been declared
junked and classified as scrap a substantial amount of which remains insulated and
once disposed of, these cables, although still bearing the "PLDT" marking, are no longer
its property. ETDAaC
In fine, petitioners contend that PLDT's ownership of cables or wires bearing the "PLDT"
marking on the insulation cannot be presumed, hence, a person's possession thereof
does not give rise to the presumption that he obtained or stole them from PLDT. 20
Additionally, petitioners aver that they were denied due process when PLDT refused to
furnish them a copy of the Investigation Report and grant them a formal hearing in which
they could be represented by counsel of their choice.
The petition is bereft of merit.
As did the NLRC and the Court of Appeals, 21 the Court finds that as the cables bore the
"PLDT" marking, the presumption is that PLDT owned them. The burden of evidence thus
lay on petitioners to prove that they acquired the cables lawfully. This they failed to
discharge.
And as also did the NLRC and the Court of Appeals, the Court finds that petitioners were
not denied due process.
Article 277 of the Labor Code provides:
xxx xxx xxx
243
(b) Subject to the constitutional right of workers to security of tenure and their right to be
protected against dismissal except for a just or authorized cause and without prejudice to
the requirement of notice under Article 283 of this Code, the employer shall furnish the
workers whose employment is sought to be terminated a written notice containing a
statement of the causes for termination and shall afford the latter ample opportunity to be
heard and defend himself with the assistance of his representative if he so desires in
accordance with company rules and regulations promulgated pursuant to the guidelines
set by the Department of Labor and Employment. Any decision taken by the employer
shall be without prejudice to the right of the worker to contest the validity or legality of his
dismissal by filing a complaint with the regional branch of the National Labor Relations
Commission. The burden of proving that the termination was for a valid or authorized
cause shall rest on the employer. (Emphasis supplied) ASTIED
And the Omnibus Rules Implementing the Labor Code require a hearing and conference
during which the employee concerned is given the opportunity to respond to the charge,
and present his evidence or rebut the evidence presented against him. Thus Rule I,
Section 2 (d), provides:
Section 2. Security of Tenure.
xxx xxx xxx
(d) In all cases of termination of employment, the following standards of due process shall
be substantially observed:
For termination of employment based on just causes as defined in Article 282 of the Labor
Code:
(i) A written notice served on the employee specifying the ground or grounds for
termination, and giving said employee reasonable opportunity within which to explain his
side.
(ii) A hearing or conference during which the employee concerned, with the assistance of
counsel if he so desires, is given opportunity to respond to the charge, present his
evidence or rebut the evidence presented against him.
(iii) A written notice of termination served on the employee, indicating that upon due
consideration of all the circumstances, grounds have been established to justify his
termination. (Emphasis and underscoring supplied)
The abovequoted provision of Section 2 (d) should not be taken to mean, however, that
holding an actual hearing or conference is a condition sine qua non for compliance with
the due process requirement in case of termination of employment. For the test for the
fair procedure guaranteed under the above-quoted Article 277 (b) of the Labor Code is
not whether there has been a formal pretermination confrontation between the employer
and the employee. The "ample opportunity to be heard" standard is neither synonymous
nor similar to a formal hearing. To confine the employee's right to be heard to a solitary
form narrows down that right. 29
The essence of due process is simply an opportunity to be heard or, as applied to
administrative proceedings, an opportunity to explain one's side or an opportunity to seek
a reconsideration of the action or ruling complained of. What the law prohibits is absolute
absence of the opportunity to be heard, hence, a party cannot feign denial of due process
where he had been afforded the opportunity to present his side. A formal or trial type
hearing is not at all times and in all instances essential to due process, the requirements
of which are satisfied where the parties are afforded fair and reasonable opportunity to
explain their side of the controversy. 30 EHSIcT
In the present case, petitioners were, among other things, given several written invitations
to submit themselves to PLDT's Investigation Unit to explain their side, but they failed to
244
heed them. A hearing, which petitioners attended along with their union MKP
representatives, was conducted on June 25, 2001 during which the principal witnesses
to the incident were presented. Petitioners were thus afforded the opportunity to confront
those witnesses and present evidence in their behalf, but they failed to do so.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated
September 28, 2007 is AFFIRMED.
SO ORDERED.
Ynares-Santiago, * Brion, Del Castillo and Abad, JJ., concur.
||| (Placido v. National Labor Relations Commission, G.R. No. 180888, [September 18,
2009], 616 PHIL 668-676)
6. MENDOZA VS. COMELEC 603 SCRA 692 (2009)
EN BANC
[G.R. No. 188308. October 15, 2009.]
JOSELITO R. MENDOZA, petitioner,vs.COMMISSION ON ELECTIONS and ROBERTO
M. PAGDANGANAN, respondents.
DECISION
BRION, J p:
The present case involves a clash between the power under the Philippine Constitution
of the respondent Commission on Elections (COMELEC) in the handling of a provincial
election contest, and the claimed due process rights of a party to the contest. The
petitioner Joselito R. Mendoza (the petitioner) essentially asserts in his petition for
certiorari 1 that the COMELEC conducted proceedings in the election contest for the
gubernatorial position of the Province of Bulacan, between him and the respondent
Roberto M. Pagdanganan (the respondent),without due regard to his fundamental due
process rights. The COMELEC, on the other hand, claims that its decision-making
deliberations are internal, confidential and do not require notice to and the participation
of the contending parties. EcHIDT
THE ANTECEDENTS
The petitioner and the respondent vied for the position of Governor of the Province of
Bulacan in the May 14, 2007 elections. The petitioner was proclaimed winning candidate
and assumed the office of Governor.
The respondent seasonably filed an election protest with the COMELEC, which was
raffled to the Second Division and docketed as EPC No. 2007-44. Revision of ballots
involving the protested and counter-protested precincts in Angat, Bocaue, Calumpit, Doa
Remedios Trinidad, Guiginto, Malolos, Meycauayan, Norzagaray, Pandi, Paombong,
Plaridel, Pulilan, San Rafael and San Jose del Monte soon followed. The revision was
conducted at the COMELEC's office in Intramuros. After revision, the parties presented
their other evidence, leading to the parties' formal offer of their respective evidence.
The COMELEC approved the parties' formal offer of evidence and then required the
parties to submit their respective memoranda. The parties complied with the COMELEC's
order. The case was thereafter submitted for resolution.
On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes, including those
involved in the provincial election contest, to the Senate Electoral Tribunal (SET) in
connection with the protest filed by Aquilino Pimentel III against Juan Miguel Zubiri. In
light of this development, the petitioner moved to suspend further proceedings.
The COMELEC's Second Division denied the petitioner's motion in its Order of April 29,
2009, ruling that the COMELEC has plenary powers to find alternative methods to
facilitate the resolution of the election protest; thus, it concluded that it would continue the
245
proceedings after proper coordination with the SET. The petitioner moved to reconsider
this Order, but the COMELEC's Second Division denied the motion in its Order of May
26, 2009. These inter-related Resolutions led to the COMELEC's continued action
specifically, the appreciation of ballots on the provincial election contest at the SET
offices.
Allegedly alarmed by information on COMELEC action on the provincial election contest
within the SET premises without notice to him and without his participation, the petitioner's
counsel wrote the SET Secretary, Atty. Irene Guevarra, a letter dated June 10, 2009 to
confirm the veracity of the reported conduct of proceedings. 2 The SET Secretary
responded on June 17, 2009 as follows:
...please be informed that the conduct of proceedings in COMELEC EPC No. 2007-44
(Pagdanganan vs. Mendoza) within the Tribunal Premises was authorized by then Acting
Chairman of the Tribunal, Justice Antonio T. Carpio, upon formal request of the Office of
Commissioner Lucenito N. Tagle. EDCcaS
Basis of such grant is Section 3, Comelec Resolution No. 2812 dated 17 October 1995,
stating that "(t)he Tribunals, the Commission and the Courts shall coordinate and make
arrangement with each other so as not to delay or interrupt the revision of ballots being
conducted. The synchronization of revision of ballots shall be such that the expeditious
disposition of the respective protest case shall be the primary concern". While the said
provision speaks only of revision, it has been the practice of the Tribunal to allow the
conduct of other proceedings in local election protest cases within its premises as may
be requested. [emphasis supplied] 3
THE PETITION
The SET Secretary's response triggered the filing of the present petition raising the
following ISSUES
A. WHETHER OR NOT THE COMELEC VIOLATED DUE PROCESS BY CONDUCTING
PROCEEDINGS WITHOUT GIVING DUE NOTICE TO THE PETITIONER.
B. WHETHER OR NOT THE COMELEC GRAVELY ABUSED ITS DISCRETION
TANTAMOUNT TO AN EXCESS OF JURISDICTION IN APPRECIATING BALLOTS
WHICH ARE NOT IN ITS OFFICIAL CUSTODY AND ARE OUTSIDE ITS OWN
PREMISES, AUTHORITY AND CONTROL.
The petitioner argues that the election protest involves his election as Governor; thus, its
subject matter involves him and the people of the Province of Bulacan who elected him.
On this basis, he claims entitlement to notice and participation in all matters that involve
or are related to the election protest. He further asserts that he had the legitimate
expectation that no further proceedings would be held or conducted in the case after its
submission for decision.
Citing the commentaries of Father Joaquin Bernas, 4 the petitioner argues that the
proceedings before the COMELEC in election protests are judicial in nature and
character. Thus, the strictures of judicial due process specifically, (a) opportunity to be
heard and (b) that judgment be rendered only after lawful hearing apply. Notices in
judicial dispute, he claims, are not really just a matter of courtesy; they are elementary
fundamental element of due process, they are part and parcel of a right of a party to be
heard. He further cites Justice Isagani A. Cruz, 5 who wrote:
...Every litigant is entitled to his day in court. He has a right to be notified of every incident
of the proceeding and to be present at every stage thereof so that he may be heard by
himself and counsel for the protection of his interest. IcSEAH
The petitioner claims that without notice to him of the proceedings, the due process
element of the right to have judgment only after lawful hearing is absent. There is no way,
he claims, that a judicial proceeding held without notice to the parties could be described
as a lawful hearing, especially a proceeding which has as its subject matter the sovereign
will of an entire province.
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He was therefore denied his day in court, he claims, when the COMELEC conducted the
examination and appreciation of ballots. The proceedings should be stopped and
declared null and void; its future results, too, should be nullified, as nothing derived from
the anomalous and unconstitutional clandestine and unilateral proceedings should ever
be part of any decision that the COMELEC may subsequently render. The poisonous
fruits (derived from the proceedings) should have no part and should not be admitted for
any purpose and/or in any judicial proceeding.
Other than his due process concern, the petitioner takes issue with the COMELEC's
appreciation of ballots even when the ballots and other election materials were no longer
in its official custody and were outside its premises, authority and control. He asserts that
an important element of due process is that the judicial body should have jurisdiction over
the property that is the subject matter of the proceedings. In this case, the COMELEC
has transferred possession, custody and jurisdiction over the ballots to the SET, a tribunal
separate and independent from the COMELEC and over which the COMELEC exercises
no authority or jurisdiction. For the COMELEC to still conduct proceedings on property,
materials and evidence no longer in its custody violates the principle of separation of
powers.
The petitioner also points out that the COMELEC's unilateral appreciation of the ballots
in the SET premises deviates from the Commission's usual and time honored practice
and procedure of conducting proceedings within its premises and while it has custody
over the ballots. There is no precedent, according to the petitioner, for this deviation, nor
is there any compelling reason to make the present case an exception. Citing Cabagnot
v. Commission on Elections (G.R. No. 124383, August 9, 1996) which involves a transfer
or change of venue of the revision of ballots, the petitioner alleges that this Court has
been very emphatic in denouncing the COMELEC for its departure from its own rules and
usual practice; while Cabagnot involves the issue of change of venue, the petitioner finds
parallel applicability in the present case which also involves a deviation from COMELEC
rules and usual practice. The petitioner adds that the act of the Second Division is
effectively an arrogation of the authority to promulgate rules of procedure a power that
solely belongs to the COMELEC en banc.
After a preliminary finding of a genuine due process issue, we issued a Status Quo Order
on July 14, 2009. cDSaEH
THE RESPONDENTS' COMMENTS
In his Comment to the Petition with Extremely Urgent Motion to Lift/Dissolve Status Quo
Ante Order, the private respondent asserts that the petition contains deliberate
falsehoods and misleading allegations that led the Court to grant the injunctive relief the
petitioner had asked. He asserts that the "proceeding" the petitioner stated in his petition
was actually the COMELEC's decision-making process, i.e., the appreciation of ballots,
which is a procedure internal to the Members of the Second Division of the COMELEC
and their staff members; no revision of ballots took place as revision had long been
finished. What was therefore undertaken within the SET's premises was unilateral
COMELEC action that is exclusive to the COMELEC and an internal matter that is
confidential in nature. In this light, no due process violation ever arose.
The private respondent also asserts that the petitioner cannot claim that he was not
notified of and denied participation in the revision proceedings, as the petitioner himself
is fully aware that the revision of the ballots was completed as early as July 28, 2008 and
the petitioner was present and actively participated in the entire proceedings, all the way
to the filing of the required memoranda. Thus, the petitioner's right to due process was
duly satisfied.
The private respondent implores us to commence contempt proceedings against the

petitioner who, the respondent claims, has not been forthright in his submissions and was
not guided by the highest standards of truthfulness, fair play and nobility in his conduct
as a party and in his relations with the opposing party, the other counsel and the Court.
Lastly, the private respondent posits that the present petition was filed out of time i.e.,
beyond the reglementary period provided under Rule 64. All these reasons, the petitioner
247
argues, constitute sufficient basis for the lifting of the status quo order and the dismissal
of the petition.
Public respondent COMELEC, for its part, claims that the petition is without basis in fact
and in law and ought to be dismissed outright. Given the possibility of simultaneous
election contests involving national and local officials, it has institutionalized an order of
preference in the custody and revision of ballots in contested ballot boxes. The
established order of preference is not without exception, as the expeditious disposition of
protest cases is a primary concern. Additionally, the order of preference does not prevent
the COMELEC from proceeding with pending protest cases, particularly those already
submitted for decision. It claims that it has wide latitude to employ means to effectively
perform its duty in safeguarding the sanctity of the elections and the integrity of the ballot.
TCaEIc
The COMELEC further argues that in the absence of a specific rule on whether it can
conduct appreciation of ballots outside its premises or official custody, the issue boils
down to one of discretion the authority of the COMELEC to control as it deems fit the
processes or incidents of a pending election protest. Under Section 4 of the COMELEC
Rules of Procedure, the COMELEC may use all auxiliary writs, processes and other
means to carry into effect its powers or jurisdiction; if the procedure to be followed in the
exercise of such power or jurisdiction is not specifically provided for by law or the Rules
of Procedure, any suitable process or proceeding not prohibited by law or by its rules may
be adopted.
The COMELEC lastly submits that while due process requires giving the parties an
opportunity to intervene in all stages of the proceedings, the COMELEC in the present
case is not actually conducting further proceedings requiring notice to the parties; there
is no revision or correction of the ballots, as the election protest had already been
submitted for resolution. When the COMELEC coordinated with the SET, it was simply
for purposes of resolving the submitted provincial election contest before it; the parties do
not take part in this aspect of the case which necessarily requires utmost secrecy. On the
whole, the petitioner was afforded every opportunity to present his case. To now hold the
election protest hostage until the conclusion of the protest pending before the SET
defeats the COMELEC's mandate of ensuring free, orderly and honest election.
THE COURT'S RULING
We review the present petition on the basis of the combined application of Rules 64 and
65 of the Rules of Court. While COMELEC jurisdiction over the Bulacan election contest
is not disputed, the legality of subsequent COMELEC action is assailed for having been
undertaken with grave abuse of discretion amounting to lack or excess of jurisdiction.
Thus, our standard of review is "grave abuse of discretion", a term that defies exact
definition, but generally refers to "capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to
amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion and hostility". 6 Mere abuse of discretion is
not enough; the abuse must be grave to merit our positive action. 7
After due consideration, we find the petition devoid of merit.
The petition is anchored on the alleged conduct of proceedings in the election protest
following the completed revision of ballots at the SET premises without notice to and
without the participation of the petitioner. Significantly, "the conduct of proceedings" is
confirmed by the SET Secretary in the letter we quoted above. 8 As the issues raised
show the petitioner's focus is not really on the COMELEC Orders denying the
suspension of proceedings when the ballot boxes and other election materials pertinent
to the election contest were transferred to the SET; the focus is on what the COMELEC
did after to the issuance of the Resolutions. We read the petition in this context as these
COMELEC Orders are now unassailable as the period to challenge them has long
passed. 9 cDECIA
The substantive issue we are primarily called upon to resolve is whether there were
proceedings within the SET premises, entitling the petitioner to notice and participation,
which were denied to him; in other words, the issue is whether the petitioner's right to due
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process has been violated. A finding of due process violation, because of the inherent
arbitrariness it carries, necessarily amounts to grave abuse of discretion.
As a preliminary matter, we note that the petitioner has claimed that COMELEC exercises
judicial power in its action over provincial election contests and has argued its due
process position from this view. We take this opportunity to clarify that judicial power in
our country is "vested in one Supreme Court and in such lower courts as may be
established by law".10 This exclusive grant of authority to the Judiciary is reinforced under
the second paragraph of Section 1, Article VIII of the Constitution which further states that
"Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable ...," thus constitutionally
locating the situs of the exercise of judicial power in the courts.
In contrast with the above definitions, Section 2, Article IX (C) of the Constitution lists the
COMELEC's powers and functions, among others, as follows:
(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the elections,
returns and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials decided by trial
courts of general jurisdiction, or involving elective barangay officials by trial courts of
limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving
elective municipal and barangay officials shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.
Under these terms, the COMELEC under our governmental structure is a constitutional
administrative agency and its powers are essentially executive in nature (i.e., to enforce
and administer election laws), 11 quasi-judicial (to exercise original jurisdiction over
election contests of regional, provincial and city officials and appellate jurisdiction over
election contests of other lower ranking officials), and quasi-legislative (rulemaking on all
questions affecting elections and the promulgation of its rules of procedure). SHIETa
Historically, the COMELEC has always been an administrative agency whose powers
have been increased from the 1935 Constitution to the present one, to reflect the country's
awareness of the need to provide greater regulation and protection to our electoral
processes to ensure their integrity. In the 1935 Constitution, the powers and functions of
the COMELEC were defined as follows:
SECTION 2. The Commission on Elections shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections and shall
exercise all other functions which may be conferred upon it by law. It shall decide, save
those involving the right to vote, all administrative questions affecting elections, including
the determination of the number and location of polling places, and the appointment of
election inspectors and of other election officials. All law enforcement agencies and
instrumentalities of the Government, when so required by the Commission, shall act as
its deputies for the purpose of insuring free, orderly, and honest election. The decisions,
orders, and rulings of the Commission shall be subject to review by the Supreme Court.
[emphasis supplied]
These evolved into the following powers and functions under the 1973 Constitution:
(1) Enforce and administer all laws relative to the conduct of elections.
(2) Be the sole judge of all contests relating to the elections, returns, and qualifications of
all members of the National Assembly and elective provincial and city officials.
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(3) Decide, save those involving the right to vote, administrative questions affecting
elections, including the determination of the number and location of polling places, the
appointment of election officials and inspectors, and the registration of voters.
These powers have been enhanced in scope and details under the 1987 Constitution, but
retained all the while the character of an administrative agency.
The COMELEC's adjudicative function is quasi-judicial since it is a constitutional body,
other than a court, vested with authority to decide election contests, and in the course of
the exercise of its jurisdiction, to hold hearings and exercise discretion of a judicial nature;
12 it receives evidence, ascertain the facts from these submissions, determine the law
and the legal rights of the parties, and on the basis of all these decides on the merits of
the case and renders judgment. 13 Despite the exercise of discretion that is essentially
judicial in character, particularly with respect to election contests, COMELEC is not a
tribunal within the judicial branch of government and is not a court exercising judicial
power in the constitutional sense; 14 hence, its adjudicative function, exercised as it is in
the course of administration and enforcement, is quasi-judicial. SDHCac
As will be seen on close examination, the 1973 Constitution used the unique wording that
the COMELEC shall "be the sole judge of all contests", thus giving the appearance that
judicial power had been conferred. This phraseology, however, was changed in the 1987
Constitution to give the COMELEC "exclusive jurisdiction over all contests", thus
removing any vestige of exercising its adjudicatory power as a court and correctly aligning
it with what it is a quasi-judicial body. 15 Consistent with the characterization of its
adjudicatory power as quasi-judicial, the judicial review of COMELEC en banc decisions
(together with the review of Civil Service Commission decisions) is via the prerogative
writ of certiorari,not through an appeal, as the traditional mode of review of quasi-judicial
decisions of administrative tribunals in the exercise the Court's supervisory authority. This
means that the Court will not supplant the decision of the COMELEC as a quasi-judicial
body except where a grave abuse of discretion or any other jurisdictional error exists.
The appropriate due process standards that apply to the COMELEC, as an administrative
or quasi-judicial tribunal, are those outlined in the seminal case of Ang Tibay v. Court of
Industrial Relations, 16 quoted below:
(1) The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. ...
(2) Not only must the party be given an opportunity to present his case and to adduce
evidence tending to establish the rights which he asserts but the tribunal must consider
the evidence presented.
(3) While the duty to deliberate does not impose the obligation to decide right, it does
imply a necessity which cannot be disregarded, namely, that of having something to
support its decision. A decision with absolutely nothing to support it is a nullity, a place
when directly attached.
(4) Not only must there be some evidence to support a finding or conclusion, but the
evidence must be "substantial"."Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion".
(5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected.
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his
own independent consideration of the law and facts of the controversy, and not simply
accept the views of a subordinate in arriving at a decision. IDCcEa
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(7) The Court of Industrial Relations should, in all controversial questions, render its
decision in such a manner that the parties to the proceeding can know the various issues
involved, and the reasons for the decisions rendered. The performance of this duty is
inseparable from the authority conferred upon it.
These are now commonly referred to as cardinal primary rights in administrative
proceedings.
The first of the enumerated rights pertain to the substantive rights of a party at hearing
stage of the proceedings. The essence of this aspect of due process, we have
consistently held, is simply the opportunity to be heard, or as applied to administrative
proceedings, an opportunity to explain one's side or an opportunity to seek a
reconsideration of the action or ruling complained of. 17 A formal or trial-type hearing is
not at all times and in all instances essential; in the case of COMELEC, Rule 17 of its
Rules of Procedure defines the requirements for a hearing and these serve as the
standards in the determination of the presence or denial of due process.
The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are
reinforcements of the right to a hearing and are the inviolable rights applicable at the
deliberative stage,as the decision-maker decides on the evidence presented during the
hearing. These standards set forth the guiding considerations in deliberating on the case
and are the material and substantial components of decision-making. Briefly, the tribunal
must consider the totality of the evidence presented which must all be found in the records
of the case (i.e.,those presented or submitted by the parties);the conclusion, reached by
the decision-maker himself and not by a subordinate, must be based on substantial
evidence. 18
Finally, the last requirement, relating to the form and substance of the decision of a quasijudicial body, further complements the hearing and decision-making due process rights
and is similar in substance to the constitutional requirement that a decision of a court
must state distinctly the facts and the law upon which it is based. 19 As a component of
the rule of fairness that underlies due process, this is the "duty to give reason" to enable
the affected person to understand how the rule of fairness has been administered in his
case, to expose the reason to public scrutiny and criticism, and to ensure that the decision
will be thought through by the decision-maker.
In the present case, the petitioner invokes both the due process component rights at the
hearing and deliberative stages and alleges that these component rights have all been
violated. We discuss all these allegations below.
The Right to Notice and to be Heard.
a. At the Hearing and Revision of Ballots.
Based on the pleadings filed, we see no factual and legal basis for the petitioner to
complain of denial of his hearing stage rights. In the first place, he does not dispute that
he fully participated in the proceedings of the election protest until the case was deemed
submitted for resolution; he had representation at the revision of the ballots, duly
presented his evidence, and summed up his case through a memorandum. These various
phases of the proceedings constitute the hearing proper of the election contest and the
COMELEC has more than satisfied the opportunity to be heard that the Ang Tibay hearing
stage rights require. In these proceedings, the petitioner stood head-to-head with the
respondent in an adversarial contest where both sides were given their respective rights
to speak, make their presentations, and controvert each other's submission, subject only
to established COMELEC rules of procedures. Under these undisputed facts, both parties
had their day in court, so to speak, and neither one can complain of any denial of notice
or of the right to be heard. HDIATS
b. At the "Proceedings" at the SET.
A critical question to be answered in passing upon due process questions at this stage of
the election contest is the nature of the so-called "proceedings" after the ballots and other
materials pertinent to the provincial election contest were transferred to the SET.
In the petition, the petitioner alleged that there were "strange proceedings" 20 which were
"unilateral, clandestine and surreptitious" within the premises of the SET, on "documents,
ballots and election materials whose possession and custody have been transferred" to
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the SET, and the "petitioner was NEVER OFFICIALLY NOTIFIED of the strange ongoings" at the SET. 21 Attached to the petition was the letter of the Secretary of the SET
confirming the "conduct of proceedings" in the provincial election contest, and citing as
basis the authority of Acting SET Chairman, Justice Antonio T. Carpio, upon the formal
request of the Office of Commissioner Lucenito N. Tagle, and citing Section 3, COMELEC
Resolution No. 2812 dated 17 October 1995 on the coordination envisioned among the
COMELEC, the SET and the courts "so as not to delay or interrupt the revision of ballots
being conducted".While the SET letter made the reservation that "While the said provision
speaks only of revision, it has been the practice of the Tribunal to allow the conduct of
other proceedings in local election protest cases within its premises as may be
requested",no mention whatsoever was made of the kind of proceedings taking place.
It was at this point that this Court intervened, in response to the petitioner's prayer for the
issuance of temporary injunctive relief, through the issuance of a Status Quo Order with
a non-extendible directive for the respondents to file their comments on the petition; for
indeed, any further revision of ballots or other adversarial proceedings after the case has
been submitted for resolution, would not only be strange and unusual but would indicate
a gross violation of due process rights.
After consideration of the respondents' Comments and the petitioner's petition and Reply,
we hold that the contested proceedings at the SET ("contested proceedings") are no
longer part of the adversarial aspects of the election contest that would require notice of
hearing and the participation of the parties. As the COMELEC stated in its Comment and
without any contrary or disputing claim in the petitioner's Reply: 22
"However, contrary to the claim of petitioner, public respondent in the appreciation of the
contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 00107 is not conducting "further proceedings" requiring notice to the parties. There is no
revision or correction of the ballots because EPC No. 2007-04 was already submitted for
resolution. Public respondent, in coordinating with the SET, is simply resolving the
submitted protest case before it. The parties necessarily take no part in said deliberation,
which require utmost secrecy. Needless to state, the actual decision-making process is
supposed to be conducted only by the designated members of the Second Division of the
public respondent in strict confidentiality." cADSCT
In other words, what took place at the SET were the internal deliberations of the
COMELEC, as a quasi-judicial body, in the course of appreciating the evidence presented
and deciding the provincial election contest on the merits. These deliberations are no
different from judicial deliberations which are considered confidential and privileged. 23
We find it significant that the private respondent's Comment fully supported the
COMELEC's position and disavowed any participation in the contested proceeding the
petitioner complained about. The petitioner, on the other hand, has not shown that the
private respondent was ever present in any proceeding at the SET relating to the
provincial election contest.
To conclude, the rights to notice and to be heard are not material considerations in the
COMELEC's handling of the Bulacan provincial election contest after the transfer of the
ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has
been conducted at the SET that would require notice and hearing because of the
possibility of prejudice to the other party. The COMELEC is under no legal obligation to
notify either party of the steps it is taking in the course of deliberating on the merits of the
provincial election contest. In the context of our standard of review for the petition, we see
no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the
COMELEC in its deliberation on the Bulacan election contest and the appreciation of
ballots this deliberation entailed.
Alleged Violations of
Deliberation Stage Rights.
On the basis of the above conclusion, we see no point in discussing any alleged violation
of the deliberative stage rights. First, no illegal proceeding ever took place that would bear
the "poisonous fruits" that the petitioner fears. Secondly, in the absence of the results of
the COMELEC deliberations through its decision on the election protest, no basis exists
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to apply the Ang Tibay deliberative stage rights; there is nothing for us to test under the
standards of the due process deliberative stages rights before the COMELEC renders its
decision. Expressed in terms of our standard of review, we have as yet no basis to
determine the existence of any grave abuse of discretion.
Conduct of COMELEC
Deliberations at the SET Premises
We turn to the issue of the propriety of the COMELEC's consideration of the provincial
election contest (specifically its appreciation of the contested ballots) at the SET premises
and while the same ballots are also under consideration by the SET for another election
contest legitimately within the SET's own jurisdiction. HSDCTA
We state at the outset that the COMELEC did not lose jurisdiction over the provincial
election contest, as the petitioner seems to imply, because of the transmittal of the
provincial ballot boxes and other election materials to the SET. The Constitution conferred
upon the COMELEC jurisdiction over election protests involving provincial officials. The
COMELEC in this case has lawfully acquired jurisdiction over the subject matter, i.e., the
provincial election contest, as well as over the parties. After its jurisdiction attached, this
jurisdiction cannot be ousted by subsequent events such as the temporary transfer of
evidence and material records of the proceedings to another tribunal exercising its own
jurisdiction over another election contest pursuant to the Constitution. This is the rule of
adherence of jurisdiction. 24
Thus, the jurisdiction of the COMELEC over provincial election contest exists side by side
with the jurisdiction of the Senate Electoral Tribunal, with each tribunal being supreme in
their respective areas of concern (the Senate election contests for the SET, and the
regional, provincial and city election contests for the COMELEC),and with neither one
being higher than the other in terms of precedence so that the jurisdiction of one must
yield to the other.
But while no precedence in jurisdiction exists, the COMELEC, vowing to the reality that
only a single ballot exists in an election for national and local officials, saw it fit to lay down
the rule on the "order of preference in the custody and revision of ballots and other
documents contained in the ballot boxes".The order, in terms of the adjudicatory tribunal
and as provided in COMELEC Resolution No. 2812, runs:
1. Presidential Electoral Tribunal;
2. Senate Electoral Tribunal;
3. House of Representatives Electoral Tribunal;
4. Commission on Elections; and
5. Regional Trial Courts.
This order of preference dictated that the ballot boxes and other election materials in
Bulacan's provincial election contest, had to be transferred to the SET when the latter
needed these materials for its revision of ballots. The transfer to the SET, however, did
not mean that the Bulacan provincial election contest at that time already submitted
for decision had to be suspended as the COMELEC held in its Orders of 29 April 2009
and 26 May 2009 in EPC No. 2007-44. 25 This is particularly true in Bulacan's case as
no revision had to be undertaken, the revision having been already terminated.
With the COMELEC retaining its jurisdiction over the Bulacan provincial election contest,
the legal effect of the physical transfer of the ballots and other election materials to the
SET for purposes of its own revision becomes a non-issue, given the arrangement
between the COMELEC and the SET, pursuant to COMELEC Resolution No. 2812, to
"coordinate and make arrangements with each other so as not to delay or interrupt the
revision of ballots being conducted", all for the purpose of the expeditious disposition of
their respective protest cases. The SET itself honored this arrangement as shown by the
letter of the SET Secretary that the COMELEC could "conduct proceedings" within the
Tribunal premises as authorized by the Acting Chairman of the Tribunal, Justice Antonio
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T. Carpio. 26 This arrangement recognized the COMELEC's effective authority over the
Bulacan ballots and other election materials, although these were temporarily located at
the SET premises. This arrangement, too, together with the side by side and nonconflicting existence of the COMELEC and SET jurisdictions, negate the validity of the
petitioner's argument that the COMELEC transgressed the rule on separation of powers
when it acted on the Bulacan provincial election contest while the ballot boxes were at
the SET premises. Rather than negate, this arrangement reinforced the separate but coexisting nature of these tribunals' respective jurisdictions. EDISTc
As the petitioner argues and the COMELEC candidly admits, "there is no specific rule
which allows the COMELEC to conduct an appreciation of ballots outside its premises
and of those which are outside its own custody". 27 But while this is true, there is likewise
nothing to prohibit the COMELEC from undertaking the appreciation of ballot side by side
with the SET's own revision of ballots for the senatorial votes, in light especially of the
COMELEC's general authority to adopt means to effect its powers and jurisdiction under
its Rules of Procedure. Section 4 of these Rules states:
Sec. 4. Means to Effect Jurisdiction. All auxiliary writs, processes and other means
necessary to carry into effect its powers or jurisdiction may be employed by the
Commission; and if the procedure to be followed in the exercise of such power or
jurisdiction is not specifically provided for by law or these rules, any suitable process or
proceeding may be adopted.
This rule is by no means unusual and unique to the COMELEC as the courts have the
benefit of this same type of rule under Section 6, Rule 136 of the Rules of Court. The
courts' own rule provides:
Means to Carry Jurisdiction into Effect.When by law jurisdiction is conferred o n a court
or judicial officer, all auxiliary writs, 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.
Incidentally, the COMELEC authority to promulgate the above rule enjoys constitutional
moorings; in the grant to the COMELEC of its jurisdiction, the Constitution provided it with
the accompanying authority to promulgate its own rules concerning pleadings and
practice before it or before any of its offices, provided that these rules shall not diminish,
increase or modify substantive rights. 28 The Constitution additionally requires that the
rules of procedure that the COMELEC will promulgate must expedite the disposition of
election cases, including pre-proclamation controversies. 29 This constitutional standard
is authority, no less, that the COMELEC can cite in defending its action. For ultimately,
the appreciation of the Bulacan ballots that the COMELEC undertook side by side with
the SET's own revision of ballots, constitutes an exercise of discretion made under the
authority of the above-cited COMELEC rule of procedure.
On the basis of the standards set by Section 4 of the COMELEC Rules of Procedure, and
of the Constitution itself in the handling of election cases, we rule that the COMELEC
action is a valid exercise of discretion as it is a suitable and reasonable process within
the exercise of its jurisdiction over provincial election contests, aimed at expediting the
disposition of this case, and with no adverse, prejudicial or discriminatory effects on the
parties to the contest that would render the rule unreasonable. SHTcDE
Since the COMELEC action, taken by its Second Division, is authorized under the
COMELEC Rules of Procedure, the Second Division cannot in any sense be said to be
intruding into the COMELEC en banc rule-making prerogative when the Second Division
chose to undertake ballot appreciation within the SET premises side by side with the SET
revision of ballots. To be exact, the Second Division never laid down any new rule; it
merely acted pursuant to a rule that the COMELEC en banc itself had previously enacted.
In light of these conclusions, we need not discuss the other issues raised.
WHEREFORE, premises considered, we DISMISS the petition for certiorari for lack of
merit. We accordingly LIFT the STATUS QUO ORDER we issued, effective immediately.
254
SO ORDERED.
Carpio, Corona, Carpio Morales, Chico-Nazario, Nachura, Leonardo-de Castro, Peralta,
Bersamin, and Abad, JJ., concur.
Puno, C.J.,Velasco, Jr. and Del Castillo, JJ., are on official leave.
Quisumbing, J.,Acting Chief Justice from October 12 to 16, 2009 per Special Order No.
721 dated October 5, 2009.
||| (Mendoza v. Commission on Elections, G.R. No. 188308, [October 15, 2009], 618 PHIL
706-735)
7. SURIGAO ELECTRIC VS. ERC 632 SCRA 96 (2010)
SECOND DIVISION
[G.R. No. 183626. October 4, 2010.]
SURIGAO DEL NORTE ELECTRIC COOPERATIVE, INC. (SURNECO), petitioner, vs.
ENERGY REGULATORY COMMISSION, respondent.
DECISION
NACHURA, ** J p:
Assailed in this petition for review on certiorari 1 under Rule 45 of the Rules of Court are
the Decision dated April 17, 2008 2 and the Resolution dated June 25, 2008 3 of the Court
of Appeals (CA) in CA-G.R. SP No. 99781.
The antecedent facts and proceedings follow
Petitioner Surigao del Norte Electric Cooperative, Inc. (SURNECO) is a rural electric
cooperative organized and existing by virtue of Presidential Decree No. 269.
On February 8, 1996, the Association of Mindanao Rural Electric Cooperatives, as
representative of SURNECO and of the other 33 rural electric cooperatives in Mindanao,
filed a petition before the then Energy Regulatory Board (ERB) for the approval of the
formula for automatic cost adjustment and adoption of the National Power Corporation
(NPC) restructured rate adjustment to comply with Republic Act (R.A.) No. 7832. 4 The
case was docketed as ERB Case No. 96-49, and later consolidated with identical petitions
of other associations of electric cooperatives in the Philippines.
The relevant provisions of R.A. No. 7832 for compliance are Sections 10 and 14, which
provide
Sec. 10. Rationalization of System Losses by Phasing Out Pilferage Losses as a
Component Thereof. There is hereby established a cap on the recoverable rate of
system losses as follows: SCADIT
xxx xxx xxx
(b) For rural electric cooperatives:
(i) Twenty-two percent (22%) at the end of the first year following the effectivity of this
Act;
(ii) Twenty percent (20%) at the end of the second year following the effectivity of this
Act;
(iii) Eighteen percent (18%) at the end of the third year following the effectivity of this Act;
(iv) Sixteen percent (16%) at the end of the fourth year following the effectivity of this Act;
and
(v) Fourteen percent (14%) at the end of the fifth year following the effectivity of this Act.
255
Provided, that the ERB is hereby authorized to determine at the end of the fifth year
following the effectivity of this Act, and as often as is necessary, taking into account the
viability of rural electric cooperatives and the interest of consumers, whether the caps
herein or theretofore established shall be reduced further which shall, in no case, be lower
than nine percent (9%) and accordingly fix the date of the effectivity of the new caps.
xxx xxx xxx
Sec. 14. Rules and Regulations. The ERB shall, within thirty (30) working days after
the conduct of hearings which must commence within thirty (30) working days upon the
effectivity of this Act, issue the rules and regulation as may be necessary to ensure the
efficient and effective implementation of the provisions of this Act, to include but not
limited to, the development of methodologies for computing the amount of electricity
illegally used and the amount of payment or deposit contemplated in Section 7 hereof as
a result of the presence of the prima facie evidence discovered.
Corollary thereto, Sections 4 and 5 of Rule IX of the Implementing Rules and Regulations
(IRR) of R.A. No. 7832 provide
Section 4. Caps on System Loss allowed to Rural Electric Cooperatives. The
maximum rate of system loss that the cooperative can pass on to its customers shall be
as follows:
a. Twenty-two percent (22%) effective on February 1996 billing. EcHIDT
b. Twenty percent (20%) effective on February 1997 billing.
c. Eighteen percent (18%) effective on February 1998 billing.
d. Sixteen percent (16%) effective on February 1999 billing.
e. Fourteen percent (14%) effective on February 2000 billing.
Section 5. Automatic Cost Adjustment Formula. Each and every cooperative shall file
with the ERB, on or before September 30, 1995, an application for approval of an
amended Purchased Power Adjustment Clause that would reflect the new system loss
cap to be included in its schedule of rates.
The automatic cost adjustment of every electric cooperative shall be guided by the
following formula:
Purchased Power Adjustment Clause
A
(PPA) =E
B - (C + D)
Where:
A = Cost of electricity purchased and generated for the previous month
B = Total Kwh purchased and generated for the previous month
C = The actual system loss but not to exceed the maximum recoverable rate of system
loss in Kwh plus actual company use in kwhrs but not to exceed 1% of total kwhrs
purchased and generated
D = kwh consumed by subsidized consumers
256
E = Applicable base cost of power equal to the amount incorporated into their basic rate
per kwh.
In an Order 5 dated February 19, 1997, the ERB granted SURNECO and other rural
electric cooperatives provisional authority to use and implement the Purchased Power
Adjustment (PPA) formula pursuant to the mandatory provisions of R.A. No. 7832 and its
IRR, with a directive to submit relevant and pertinent documents for the Board's review,
verification, and confirmation.
In the meantime, the passage of R.A. No. 9136 6 led to the creation of the Energy
Regulatory Commission (ERC), replacing and succeeding the ERB. All pending cases
before the ERB were transferred to the ERC. ERB Case No. 96-49 was re-docketed as
ERC Case No. 2001-343. SDHTEC
In the Order dated June 17, 2003, the ERC clarified ERB's earlier policy regarding the
PPA formula to be used by the electric cooperatives, viz.
After a careful evaluation of the records, the Commission noted that the PPA formula
which was approved by the ERB was silent on whether the calculation of the cost of
electricity purchased and generated in the formula should be "gross" or "net" of the
discounts.
Let it be noted that the power cost is said to be at "gross" if the discounts are not passedon to the end-users whereas it is said to be at "net" if the said discounts are passed-on
to the end-users.
To attain uniformity in the implementation of the PPA formula, the Commission has
resolved that:
1. In the confirmation of past PPAs, the power cost shall still be based on "gross," and
2. In the confirmation of future PPAs, the power cost shall be based on "net."
The electric cooperatives filed their respective motions for clarification and/or
reconsideration. Hence, the ERC issued an Order 7 dated January 14, 2005, stating that
the PPA was a cost-recovery mechanism, not a revenue-generating scheme, so that the
distribution utilities or the electric cooperatives must recover from their customers only
the actual cost of purchased power. The ERC thus adopted a new PPA policy, to wit
A. The computation and confirmation of the PPA prior to the Commission's Order dated
June 17, 2003 shall be based on the approved PPA Formula;
B. The computation and confirmation of the PPA after the Commission's Order dated
June 17, 2003 shall be based on the power cost "net" of discount; and
C. If the approved PPA Formula is silent on the terms of discount, the computation and
confirmation of the PPA shall be based on the power cost at "gross," subject to the
submission of proofs that said discounts are being extended to the end-users. 8
Thereafter, the ERC continued its review, verification, and confirmation of the electric
cooperatives' implementation of the PPA formula based on the available data and
information submitted by the latter.
On March 19, 2007, the ERC issued its assailed Order, 9 mandating that the discounts
earned by SURNECO from its power supplier should be deducted from the computation
of the power cost, disposing in this wise
WHEREFORE, the foregoing premises considered, the Commission hereby confirms the
Purchased Power Adjustment (PPA) of Surigao del Norte Electric Cooperative, Inc.
(SURNECO) for the period February 1996 to July 2004 which resulted to an over-recovery
amounting to EIGHTEEN MILLION ONE HUNDRED EIGHTY EIGHT THOUSAND
SEVEN HUNDRED NINETY FOUR PESOS (PhP18,188,794.00) equivalent to
257
PhP0.0500/kwh. In this connection, SURNECO is hereby directed to refund the amount

of PhP0.0500/kwh to its Main Island consumers starting the next billing cycle from receipt
of this Order until such time that the full amount shall have been refunded. AIaSTE
The Commission likewise confirms the PPA of SURNECO for its Hikdop Island
consumers for the period February 1996 to July 2004 which resulted to an under-recovery
amounting to TWO MILLION FOUR HUNDRED SEVENTY EIGHT THOUSAND FORTY
FIVE PESOS (PhP2,478,045.00). SURNECO is hereby authorized to collect from its
Hikdop Island consumers the amount of PhP0.0100/kwh starting the next billing cycle
from receipt of this Order until such time that the full amount shall have been collected.
Accordingly, SURNECO is directed to:
a) Reflect the PPA refund/collection as a separate item in the bill using the phrase
"Previous Years' Adjustment on Power Cost";
b) Submit, within ten (10) days from its initial implementation of the refund/collection, a
sworn statement indicating its compliance with the aforecited directive; and
c) Accomplish and submit a report in accordance with the attached prescribed format, on
or before the 30th day of January of the succeeding year and every year thereafter until
the amount shall have been fully refunded/collected.
SO ORDERED. 10
SURNECO filed a motion for reconsideration, but it was denied by the ERC in its Order
11 dated May 29, 2007 on the ground that the motion did not raise any new matter which
was not already passed upon by the ERC.
Aggrieved, SURNECO went to the CA via a petition for review, 12 with prayer for the
issuance of a temporary restraining order and preliminary injunction, seeking the
annulment of the ERC Orders dated March 19, 2007 and May 29, 2007.
In its Decision dated April 17, 2008, the CA denied SURNECO's petition and affirmed the
assailed Orders of the ERC.
On June 25, 2008, upon motion for reconsideration 13 of SURNECO, the CA issued its
Resolution denying the same.
Hence, this petition, with SURNECO ascribing error to the CA and the ERC in: (1)
disallowing its use of the multiplier scheme to compute its system's loss; (2) ordering it to
deduct from the power cost or refund to its consumers the discounts extended to it by its
power supplier, NPC; and (3) ordering it to refund alleged over-recoveries arrived at by
the ERC without giving SURNECO the opportunity to be heard. cCAaHD
The petition should be denied.
First. SURNECO points out that the National Electrification Administration (NEA), which
used to be the government authority charged by law with the power to fix rates of rural
electric cooperatives, entered into a loan agreement with the Asian Development Bank
(ADB). The proceeds of the loan were intended for use by qualified rural electric
cooperatives, SURNECO included, in their rehabilitation and expansion projects. The
loan agreement imposed a 15% system loss cap, but provided a Power Cost Adjustment
Clause authorizing cooperatives to charge and show "system losses in excess of 15%"
as a separate item in their consumer's bill. Thus, the cooperatives charged their
consumer-members "System Loss Levy" for system losses in excess of the 15% cap.
SURNECO states that, in January 1984, it was authorized by the NEA that all increases
in the NPC power cost (in case of NPC-connected cooperatives) shall be uniformly
passed on to the member-consumers using the 1.4 multiplier, which is divided into 1.3 as
allowance for 23% system loss and 0.1 as provision for the corresponding increase in
operating expenses to partly offset the effects of inflation. 14 Subsequently, the NEA,
through NEA Memorandum No. 1-A dated March 30, 1992, revised the aforesaid
issuance as follows
258
Pursuant to NEA Board Resolution No. 98, Series of 1991, . . ., the revised cooperatives'
multiplier will be as follows:
1.2 Rural Electric Cooperatives (RECs) with system loss of 15% and below;
1.3 RECs with system loss ranging from 16% to 22%;
1.4 RECs with system loss of 23% and above.
SURNECO posits that, per NEA Memorandum No. 1-A, the NEA had authorized it to
adopt a multiplier scheme as the method to recover system loss. It claims that this cannot
be abrogated, revoked, or superseded by any order, resolution, or issuance by the ERC
prescribing a certain formula to implement the caps of recoverable rate of system loss
under R.A. No. 7832 without violating the non-impairment clause 15 of the Constitution.
We disagree. SURNECO cannot insist on using the multiplier scheme even after the
imposition of the system loss caps under Section 10 of R.A. No. 7832. The law took effect
on January 17, 1995. Perusing Section 10, and also Section 11, 16 providing for the
application of the caps as of the date of the effectivity of R.A. No. 7832, readily shows
that the imposition of the caps was self-executory and did not require the issuance of any
enabling set of rules or any action by the then ERB, now ERC. Thus, the caps should
have been applied as of January 17, 1995 when R.A. No. 7832 took effect. aAIcEH
Indeed, under NEA Memorandum No. 1-A, the use of the multiplier scheme allows the
recovery of system losses even beyond the caps mandated in R.A. No. 7832, which is
intended to gradually phase out pilferage losses as a component of the recoverable
system losses by the distributing utilities such as SURNECO. However, it is totally
repugnant to and incompatible with the system loss caps established in R.A. No. 7832,
and is repealed by Section 16 17 of the law. As between NEA Memorandum No. 1-A, a
mere administrative issuance, and R.A. No. 7832, a legislative enactment, the latter must
prevail. 18
Second. The ERC was merely implementing the system loss caps in R.A. No. 7832 when
it reviewed and confirmed SURNECO'S PPA charges, and ordered the refund of the
amount collected in excess of the allowable system loss caps through its continued use
of the multiplier scheme. As the ERC held in its March 19, 2007 Order
On January 14, 2005, the Commission issued an Order adopting a new PPA policy as
follows: (a) the computation and confirmation of the PPA prior to the Commission's Order
dated June 17, 2003 shall be based on the approved PPA Formula; (b) the computation
and confirmation of the PPA after the Commission's Order dated June 17, 2003 shall be
based on the power cost "net" of discount; and (c) if the approved PPA Formula is silent
in terms of discount, the computation and confirmation of the PPA shall be based on the
power cost at "gross" reduced by the amount of discounts extended to customers, subject
to the submission of proofs that said discounts are indeed being extended to customers.
However, the Commission deemed it appropriate to clarify its PPA confirmation process
particularly on the treatment of the Prompt Payment Discount (PPD) granted to
distribution utilities (DUs) by their power suppliers, to wit:
I. The over-or-under recovery will be determined by comparing the allowable power cost
with the actual revenue billed to end-users.
II. Calculation of the DU's allowable power cost as prescribed in the PPA formula:
a. If the PPA formula explicitly provides the manner by which discounts availed from the
power supplier/s shall be treated, the allowable power cost will be computed based on
the specific provision of the formula, which may either be at "net" or "gross"; and
b. If the PPA formula is silent in terms of discounts, the allowable power cost will be
computed at "net" of discounts availed from the power supplier/s, if there be any. SIaHDA
259
III. Calculation of DU's actual revenues/actual amount billed to end-users.

a. On actual PPA computed at net of discounts availed from power supplier/s:
a.1. If a DU bills at net of discounts availed from the power supplier/s (i.e., gross power
cost minus discounts from power supplier/s) and the DU is not extending discounts to
end-users, the actual revenue should be equal to the allowable power cost; and
a.2. If a DU bills at net of discounts availed from the power supplier/s (i.e., gross power
cost minus discounts from power supplier/s) and the DU is extending discounts to endusers, the discount extended to end-users shall be added back to the actual revenue.
b. On actual PPA computed at gross:
b.1. If a DU bills at gross (i.e., gross power cost not reduced by discounts from power
supplier/s) and the DU is extending discounts to end-users, the actual revenue shall be
calculated as: gross power revenue less discounts extended to end-users. The result
shall then be compared to the allowable power cost; and
b.2. If a DU bills at gross (i.e., gross power cost not reduced by discounts from power
supplier/s) and the DU is not extending discounts to end-users, the actual revenue shall
be taken as is which shall be compared to the allowable power cost.
IV. In the calculation of the DU's actual revenues, the amount of discounts extended to
end-users shall, in no case, be higher than the discounts availed by the DU from its power
supplier/s. SCEDAI
The foregoing clarification was intended to ensure that only the actual costs of purchased
power are recovered by the DUs.
In the meantime, SURNECO submitted reports on its monthly implementation of the PPA
covering the period January 1998 to July 2004 and attended the conferences conducted
by the Commission on December 11, 2003 and May 4, 2005 relative thereto.
The Commission evaluated SURNECO's monthly PPA implementation covering the
period February 1996 to July 2004, which disclosed the following:
Schedule 1, Main Island
Period Covered
Over
Over
(Under)
(Under)
Recoveries
Recoveries
(In PhP)
(In kWh)
February 1996 to
December 1998
20,737,074
0.2077
January 1999 to
260
July 2004
(2,548,280)
(0.0097)
TOTAL
18,188,794
0.0500
Schedule 2, Municipality of Hikdop
February 1996 to
December 1998
PPA Plus Basic
Cha[r]ge
70,235
0.3190
January 1999 to
July 2004
(2,548,280)
(0.0097)
TOTAL
(2,478,045)
(0.0100)
The over-recoveries were due to the following:
1. For the period February 1996 to December 1998, SURNECO's PPA computation
included the power cost and the corresponding kWh purchased from Hikdop end-users.
The Commission excluded those months which SURNECO did not impose variable
charges to Hikdop end-user which resulted to a total net over-recovery of
PhP21,245,034.00; and
2. SURNECO's basic charge for Hikdop end-users were beyond the approved basic
charge for the period February 1996 to September 1998 resulting to a net over-recovery
of PhP128,489.00. HCDAac
SURNECO's under recoveries for the period January 1999 to June 2004 were due to the
following:
1. For the period August 2001 to June 2004, SURNECO erroneously deducted the Power
Act Reduction Adjustments (PARA) in the total purchased power cost of its PPA
computation resulting to an under-recovery of PhP1,377,763.00;
261
2. SURNECO's power cost and kWh computation includes Dummy Load resulting to an
under recovery amounting to PhP226,196.00; and
3. The new grossed-up factor scheme adopted by the Commission which provided a trueup mechanism to allow the DUs to recover the actual costs of purchased power. 19
In directing SURNECO to refund its over-recoveries based on PPA policies, which only
ensured that the PPA mechanism remains a purely cost-recovery mechanism and not a
revenue-generating scheme for the electric cooperatives, the ERC merely exercised its
authority to regulate and approve the rates imposed by the electric cooperatives on their
consumers. The ERC simply performed its mandate to protect the public interest imbued
in those rates.
It is beyond cavil that the State, in the exercise of police power, can regulate the rates
imposed by a public utility such as SURNECO. As we held in Republic of the Philippines
v. Manila Electric Company 20
The regulation of rates to be charged by public utilities is founded upon the police powers
of the State and statutes prescribing rules for the control and regulation of public utilities
are a valid exercise thereof. When private property is used for a public purpose and is
affected with public interest, it ceases to be juris privati only and becomes subject to
regulation. The regulation is to promote the common good. Submission to regulation may
be withdrawn by the owner by discontinuing use; but as long as use of the property is
continued, the same is subject to public regulation.
Likewise, SURNECO cannot validly assert that the caps set by R.A. No. 7832 are
arbitrary, or that they violate the non-impairment clause of the Constitution for allegedly
traversing the loan agreement between NEA and ADB. Striking down a legislative
enactment, or any of its provisions, can be done only by way of a direct action, not through
a collateral attack, and more so, not for the first time on appeal in order to avoid
compliance. The challenge to the law's constitutionality should also be raised at the
earliest opportunity. 21
Even assuming, merely for argument's sake, that the ERC issuances violated the NEA
and ADB covenant, the contract had to yield to the greater authority of the State's exercise
of police power. It has long been settled that police power legislation, adopted by the
State to promote the health, morals, peace, education, good order, safety, and general
welfare of the people prevail not only over future contracts but even over those already in
existence, for all private contracts must yield to the superior and legitimate measures
taken by the State to promote public welfare. 22 HSAcaE
SURNECO also avers that the Electric Power Industry Reform Act of 2001
(EPIRA)removed the alleged arbitrary caps in R.A. No. 7832. We differ. The EPIRA allows
the caps to remain until replaced by the caps to be determined by the ERC, pursuant to
its delegated authority under Section 43 23 of R.A. No. 9136 to prescribe new system
loss caps, based on technical parameters such as load density, sales mix, cost of service,
delivery voltage, and other technical considerations it may promulgate.
Third. We also disagree with SURNECO in its insistence that the PPA confirmation
policies constituted an amendment to the IRR of R.A. No. 7832 and must, therefore,
comply with the publication requirement for the effectivity of administrative issuances.
The PPA formula provided in the IRR of R.A. No. 7832 was only a model to be used as a
guide by the electric cooperatives in proposing their own PPA formula for approval by the
then ERB. Sections 4 and 5, Rule IX of the IRR directed the electric cooperatives to apply
for approval of such formula with the ERB so that the system loss caps under the law
would be incorporated in their computation of power cost adjustments. The IRR did not
provide for a specific formula; therefore, there was nothing in the IRR that was amended
or could have been amended relative to the PPA formula. The IRR left to the ERB, now
the ERC, the authority to approve and oversee the implementation of the electric
cooperatives' PPA formula in the exercise of its rate-making power over them.
We likewise differ from SURNECO's stance that it was denied due process when the ERC
issued its questioned Orders. Administrative due process simply requires an opportunity
262
to explain one's side or to seek reconsideration of the action or ruling complained of. 24
It means being given the opportunity to be heard before judgment, and for this purpose,
a formal trial-type hearing is not even essential. It is enough that the parties are given a
fair and reasonable chance to demonstrate their respective positions and to present
evidence in support thereof. 25
Verily, the PPA confirmation necessitated a review of the electric cooperatives' monthly
documentary submissions to substantiate their PPA charges. The cooperatives were duly
informed of the need for other required supporting documents and were allowed to submit
them accordingly. In fact, hearings were conducted. Moreover, the ERC conducted exit
conferences with the electric cooperatives' representatives, SURNECO included, to
discuss preliminary figures and to double-check these figures for inaccuracies, if there
were any. In addition, after the issuance of the ERC Orders, the electric cooperatives
were allowed to file their respective motions for reconsideration. It cannot be gainsaid,
therefore, that SURNECO was not denied due process.
Finally, the core of the issues raised is factual in character. It needs only to be reiterated
that factual findings of administrative bodies on technical matters within their area of
expertise should be accorded not only respect but even finality if they are supported by
substantial evidence even if not overwhelming or preponderant, 26 more so if affirmed by
the CA. Absent any grave abuse of discretion on the part of ERC, we must sustain its
findings. Hence, its assailed Orders, following the rule of non-interference on matters
addressed to the sound discretion of government agencies entrusted with the regulation
of activities coming their special technical knowledge and training, must be upheld. 27
EIDTAa
WHEREFORE, the petition is DENIED. The Decision dated April 17, 2008 and the
Resolution dated June 25, 2008 of the Court of Appeals in CA-G.R. SP No. 99781 are
AFFIRMED. Costs against petitioner.
SO ORDERED.
Velasco, Jr., * Peralta, Mendoza and Sereno, *** JJ., concur.
||| (Surigao del Norte Electric Cooperative, Inc. v. Energy Regulatory Commission, G.R.
No. 183626, [October 4, 2010], 646 PHIL 402-421)
8. HERITAGE HOTEL VS. NUNHRAIN 639 SCRA 420 (2011)
SECOND DIVISION
[G.R. No. 178296. January 12, 2011.]
THE HERITAGE HOTEL MANILA, acting through its owner, GRAND PLAZA HOTEL
CORPORATION, petitioner, vs. NATIONAL UNION OF WORKERS IN THE HOTEL,
RESTAURANT
AND
ALLIED
INDUSTRIES-HERITAGE
HOTEL
MANILA
SUPERVISORS CHAPTER (NUWHRAIN-HHMSC), respondent.
DECISION
NACHURA, J p:
Before the Court is a petition for review on certiorari of the Decision 1 of the Court of
Appeals (CA) dated May 30, 2005 and Resolution dated June 4, 2007. The assailed
Decision affirmed the dismissal of a petition for cancellation of union registration filed by
petitioner, Grand Plaza Hotel Corporation, owner of Heritage Hotel Manila, against
respondent, National Union of Workers in the Hotel, Restaurant and Allied IndustriesHeritage Hotel Manila Supervisors Chapter (NUWHRAIN-HHMSC), a labor organization
of the supervisory employees of Heritage Hotel Manila.
The case stemmed from the following antecedents:
On October 11, 1995, respondent filed with the Department of Labor and EmploymentNational Capital Region (DOLE-NCR) a petition for certification election. 2 The MedArbiter granted the petition on February 14, 1996 and ordered the holding of a certification
263
election. 3 On appeal, the DOLE Secretary, in a Resolution dated August 15, 1996,
affirmed the Med-Arbiter's order and remanded the case to the Med-Arbiter for the holding
of a preelection conference on February 26, 1997. Petitioner filed a motion for
reconsideration, but it was denied on September 23, 1996.
The preelection conference was not held as initially scheduled; it was held a year later,
or on February 20, 1998. Petitioner moved to archive or to dismiss the petition due to
alleged repeated non-appearance of respondent. The latter agreed to suspend
proceedings until further notice. The preelection conference resumed on January 29,
2000.
Subsequently, petitioner discovered that respondent had failed to submit to the Bureau
of Labor Relations (BLR) its annual financial report for several years and the list of its
members since it filed its registration papers in 1995. Consequently, on May 19, 2000,
petitioner filed a Petition for Cancellation of Registration of respondent, on the ground of
the non-submission of the said documents. Petitioner prayed that respondent's Certificate
of Creation of Local/Chapter be cancelled and its name be deleted from the list of
legitimate labor organizations. It further requested the suspension of the certification
election proceedings. 4 ECTIcS
On June 1, 2000, petitioner reiterated its request by filing a Motion to Dismiss or Suspend
the [Certification Election] Proceedings, 5 arguing that the dismissal or suspension of the
proceedings is warranted, considering that the legitimacy of respondent is seriously being
challenged in the petition for cancellation of registration. Petitioner maintained that the
resolution of the issue of whether respondent is a legitimate labor organization is crucial
to the issue of whether it may exercise rights of a legitimate labor organization, which
include the right to be certified as the bargaining agent of the covered employees.
Nevertheless, the certification election pushed through on June 23, 2000. Respondent
emerged as the winner. 6
On June 28, 2000, petitioner filed a Protest with Motion to Defer Certification of Election
Results and Winner, 7 stating that the certification election held on June 23, 2000 was an
exercise in futility because, once respondent's registration is cancelled, it would no longer
be entitled to be certified as the exclusive bargaining agent of the supervisory employees.
Petitioner also claimed that some of respondent's members were not qualified to join the
union because they were either confidential employees or managerial employees. It then
prayed that the certification of the election results and winner be deferred until the petition
for cancellation shall have been resolved, and that respondent's members who held
confidential or managerial positions be excluded from the supervisors' bargaining unit.
Meanwhile, respondent filed its Answer 8 to the petition for the cancellation of its
registration. It averred that the petition was filed primarily to delay the conduct of the
certification election, the respondent's certification as the exclusive bargaining
representative of the supervisory employees, and the commencement of bargaining
negotiations. Respondent prayed for the dismissal of the petition for the following
reasons: (a) petitioner is estopped from questioning respondent's status as a legitimate
labor organization as it had already recognized respondent as such during the preelection
conferences; (b) petitioner is not the party-in-interest, as the union members are the ones
who would be disadvantaged by the non-submission of financial reports; (c) it has already
complied with the reportorial requirements, having submitted its financial statements for
1996, 1997, 1998, and 1999, its updated list of officers, and its list of members for the
years 1995, 1996, 1997, 1998, and 1999; (d) the petition is already moot and academic,
considering that the certification election had already been held, and the members had
manifested their will to be represented by respondent.
Citing National Union of Bank Employees v. Minister of Labor, et al. 9 and Samahan ng
Manggagawa sa Pacific Plastic v. Hon. Laguesma, 10 the Med-Arbiter held that the
pendency of a petition for cancellation of registration is not a bar to the holding of a
certification election. Thus, in an Order 11 dated January 26, 2001, the Med-Arbiter
dismissed petitioner's protest, and certified respondent as the sole and exclusive
bargaining agent of all supervisory employees. aHIDAE
Petitioner subsequently appealed the said Order to the DOLE Secretary. 12 The appeal
was later dismissed by DOLE Secretary Patricia A. Sto. Tomas (DOLE Secretary Sto.
264
Tomas) in the Resolution of August 21, 2002. 13 Petitioner moved for reconsideration,
but the motion was also denied. 14
In the meantime, Regional Director Alex E. Maraan (Regional Director Maraan) of DOLENCR finally resolved the petition for cancellation of registration. While finding that
respondent had indeed failed to file financial reports and the list of its members for several
years, he, nonetheless, denied the petition, ratiocinating that freedom of association and
the employees' right to self-organization are more substantive considerations. He took
into account the fact that respondent won the certification election and that it had already
been certified as the exclusive bargaining agent of the supervisory employees. In view of
the foregoing, Regional Director Maraan while emphasizing that the non-compliance
with the law is not viewed with favor considered the belated submission of the annual
financial reports and the list of members as sufficient compliance thereof and considered
them as having been submitted on time. The dispositive portion of the decision 15 dated
December 29, 2001 reads:
WHEREFORE, premises considered, the instant petition to delist the National Union of
Workers in the Hotel, Restaurant and Allied Industries-Heritage Hotel Manila Supervisors
Chapter from the roll of legitimate labor organizations is hereby DENIED.
SO ORDERED. 16
Aggrieved, petitioner appealed the decision to the BLR. 17 BLR Director Hans Leo
Cacdac inhibited himself from the case because he had been a former counsel of
respondent.
In view of Director Cacdac's inhibition, DOLE Secretary Sto. Tomas took cognizance of
the appeal. In a resolution 18 dated February 21, 2003, she dismissed the appeal, holding
that the constitutionally guaranteed freedom of association and right of workers to selforganization outweighed respondent's noncompliance with the statutory requirements to
maintain its status as a legitimate labor organization.
Petitioner filed a motion for reconsideration, 19 but the motion was likewise denied in a
resolution 20 dated May 30, 2003. DOLE Secretary Sto. Tomas admitted that it was the
BLR which had jurisdiction over the appeal, but she pointed out that the BLR Director had
voluntarily inhibited himself from the case because he used to appear as counsel for
respondent. In order to maintain the integrity of the decision and of the BLR, she therefore
accepted the motion to inhibit and took cognizance of the appeal.
Petitioner filed a petition for certiorari with the CA, raising the issue of whether the DOLE
Secretary acted with grave abuse of discretion in taking cognizance of the appeal and
affirming the dismissal of its petition for cancellation of respondent's registration. SCaIcA
In a Decision dated May 30, 2005, the CA denied the petition. The CA opined that the
DOLE Secretary may legally assume jurisdiction over an appeal from the decision of the
Regional Director in the event that the Director of the BLR inhibits himself from the case.
According to the CA, in the absence of the BLR Director, there is no person more
competent to resolve the appeal than the DOLE Secretary. The CA brushed aside the
allegation of bias and partiality on the part of the DOLE Secretary, considering that such
allegation was not supported by any evidence.
The CA also found that the DOLE Secretary did not commit grave abuse of discretion
when she affirmed the dismissal of the petition for cancellation of respondent's registration
as a labor organization. Echoing the DOLE Secretary, the CA held that the requirements
of registration of labor organizations are an exercise of the overriding police power of the
State, designed for the protection of workers against potential abuse by the union that
recruits them. These requirements, the CA opined, should not be exploited to work
against the workers' constitutionally protected right to self-organization.
Petitioner filed a motion for reconsideration, invoking this Court's ruling in Abbott Labs.
Phils., Inc. v. Abbott Labs. Employees Union, 21 which categorically declared that the
DOLE Secretary has no authority to review the decision of the Regional Director in a
petition for cancellation of union registration, and Section 4, 22 Rule VIII, Book V of the
Omnibus Rules Implementing the Labor Code.
265
In its Resolution 23 dated June 4, 2007, the CA denied petitioner's motion, stating that
the BLR Director's inhibition from the case was a peculiarity not present in the Abbott
case, and that such inhibition justified the assumption of jurisdiction by the DOLE
Secretary.
In this petition, petitioner argues that:
The Court of Appeals seriously erred in ruling that the Labor Secretary properly assumed
jurisdiction over Petitioner's appeal of the Regional Director's Decision in the Cancellation
Petition . . . .
A. Jurisdiction is conferred only by law. The Labor Secretary had no jurisdiction to review
the decision of the Regional Director in a petition for cancellation. Such jurisdiction is
conferred by law to the BLR.
B. The unilateral inhibition by the BLR Director cannot justify the Labor Secretary's
exercise of jurisdiction over the Appeal.
C. The Labor Secretary's assumption of jurisdiction over the Appeal without notice
violated Petitioner's right to due process.
II.
The Court of Appeals gravely erred in affirming the dismissal of the Cancellation Petition
despite the mandatory and unequivocal provisions of the Labor Code and its
Implementing Rules. 24 cCAIaD
The petition has no merit.
Jurisdiction to review the decision of the Regional Director lies with the BLR. This is clearly
provided in the Implementing Rules of the Labor Code and enunciated by the Court in
Abbott. But as pointed out by the CA, the present case involves a peculiar circumstance
that was not present or covered by the ruling in Abbott. In this case, the BLR Director
inhibited himself from the case because he was a former counsel of respondent. Who,
then, shall resolve the case in his place?
In Abbott, the appeal from the Regional Director's decision was directly filed with the
Office of the DOLE Secretary, and we ruled that the latter has no appellate jurisdiction. In
the instant case, the appeal was filed by petitioner with the BLR, which, undisputedly,
acquired jurisdiction over the case. Once jurisdiction is acquired by the court, it remains
with it until the full termination of the case. 25
Thus, jurisdiction remained with the BLR despite the BLR Director's inhibition. When the
DOLE Secretary resolved the appeal, she merely stepped into the shoes of the BLR
Director and performed a function that the latter could not himself perform. She did so
pursuant to her power of supervision and control over the BLR. 26
Expounding on the extent of the power of control, the Court, in Araneta, et al. v. Hon. M.
Gatmaitan, et al., 27 pronounced that, if a certain power or authority is vested by law upon
the Department Secretary, then such power or authority may be exercised directly by the
President, who exercises supervision and control over the departments. This principle
was incorporated in the Administrative Code of 1987, which defines "supervision and
control" as including the authority to act directly whenever a specific function is entrusted
by law or regulation to a subordinate. 28 Applying the foregoing to the present case, it is
clear that the DOLE Secretary, as the person exercising the power of supervision and
control over the BLR, has the authority to directly exercise the quasi-judicial function
entrusted by law to the BLR Director.
It is true that the power of control and supervision does not give the Department Secretary
unbridled authority to take over the functions of his or her subordinate. Such authority is
subject to certain guidelines which are stated in Book IV, Chapter 8, Section 39 (1) (a) of
the Administrative Code of 1987. 29 However, in the present case, the DOLE Secretary's
act of taking over the function of the BLR Director was warranted and necessitated by the
266
latter's inhibition from the case and the objective to "maintain the integrity of the decision,
as well as the Bureau itself." 30
Petitioner insists that the BLR Director's subordinates should have resolved the appeal,
citing the provision under the Administrative Code of 1987 which states, "in case of the
absence or disability of the head of a bureau or office, his duties shall be performed by
the assistant head." 31 The provision clearly does not apply considering that the BLR
Director was neither absent nor suffering from any disability; he remained as head of the
BLR. Thus, to dispel any suspicion of bias, the DOLE Secretary opted to resolve the
appeal herself.
Petitioner was not denied the right to due process when it was not notified in advance of
the BLR Director's inhibition and the DOLE Secretary's assumption of the case. Wellsettled is the rule that the essence of due process is simply an opportunity to be heard,
or, as applied to administrative proceedings, an opportunity to explain one's side or an
opportunity to seek a reconsideration of the action or ruling complained of. 32 Petitioner
had the opportunity to question the BLR Director's inhibition and the DOLE Secretary's
taking cognizance of the case when it filed a motion for reconsideration of the latter's
decision. It would be well to state that a critical component of due process is a hearing
before an impartial and disinterested tribunal, for all the elements of due process, like
notice and hearing, would be meaningless if the ultimate decision would come from a
partial and biased judge. 33 It was precisely to ensure a fair trial that moved the BLR
Director to inhibit himself from the case and the DOLE Secretary to take over his function.
Petitioner also insists that respondent's registration as a legitimate labor union should be
cancelled. Petitioner posits that once it is determined that a ground enumerated in Article
239 of the Labor Code is present, cancellation of registration should follow; it becomes
the ministerial duty of the Regional Director to cancel the registration of the labor
organization, hence, the use of the word "shall." Petitioner points out that the Regional
Director has admitted in its decision that respondent failed to submit the required
documents for a number of years; therefore, cancellation of its registration should have
followed as a matter of course. ECcaDT
We are not persuaded.
Articles 238 and 239 of the Labor Code read:
ART. 238. CANCELLATION OF REGISTRATION; APPEAL
The certificate of registration of any legitimate labor organization, whether national or
local, shall be canceled by the Bureau if it has reason to believe, after due hearing, that
the said labor organization no longer meets one or more of the requirements herein
prescribed. 34
ART. 239. GROUNDS FOR CANCELLATION OF UNION REGISTRATION
The following shall constitute grounds for cancellation of union registration:
xxx xxx xxx
(d) Failure to submit the annual financial report to the Bureau within thirty (30) days after
the closing of every fiscal year and misrepresentation, false entries or fraud in the
preparation of the financial report itself;
xxx xxx xxx
(i) Failure to submit list of individual members to the Bureau once a year or whenever
required by the Bureau. 35
These provisions give the Regional Director ample discretion in dealing with a petition for
cancellation of a union's registration, particularly, determining whether the union still
meets the requirements prescribed by law. It is sufficient to give the Regional Director
license to treat the late filing of required documents as sufficient compliance with the
267
requirements of the law. After all, the law requires the labor organization to submit the
annual financial report and list of members in order to verify if it is still viable and financially
sustainable as an organization so as to protect the employer and employees from
fraudulent or fly-by-night unions. With the submission of the required documents by
respondent, the purpose of the law has been achieved, though belatedly.
We cannot ascribe abuse of discretion to the Regional Director and the DOLE Secretary
in denying the petition for cancellation of respondent's registration. The union members
and, in fact, all the employees belonging to the appropriate bargaining unit should not be
deprived of a bargaining agent, merely because of the negligence of the union officers
who were responsible for the submission of the documents to the BLR. THCASc
Labor authorities should, indeed, act with circumspection in treating petitions for
cancellation of union registration, lest they be accused of interfering with union activities.
In resolving the petition, consideration must be taken of the fundamental rights
guaranteed by Article XIII, Section 3 of the Constitution, i.e., the rights of all workers to
self-organization, collective bargaining and negotiations, and peaceful concerted
activities. Labor authorities should bear in mind that registration confers upon a union the
status of legitimacy and the concomitant right and privileges granted by law to a legitimate
labor organization, particularly the right to participate in or ask for certification election in
a bargaining unit. 36 Thus, the cancellation of a certificate of registration is the equivalent
of snuffing out the life of a labor organization. For without such registration, it loses as
a rule its rights under the Labor Code. 37
It is worth mentioning that the Labor Code's provisions on cancellation of union
registration and on reportorial requirements have been recently amended by Republic Act
(R.A.) No. 9481, An Act Strengthening the Workers' Constitutional Right to SelfOrganization, Amending for the Purpose Presidential Decree No. 442, As Amended,
Otherwise Known as the Labor Code of the Philippines, which lapsed into law on May 25,
2007 and became effective on June 14, 2007. The amendment sought to strengthen the
workers' right to self-organization and enhance the Philippines' compliance with its
international obligations as embodied in the International Labour Organization (ILO)
Convention No. 87, 38 pertaining to the non-dissolution of workers' organizations by
administrative authority. 39 Thus, R.A. No. 9481 amended Article 239 to read:
ART. 239. Grounds for Cancellation of Union Registration. The following may
constitute grounds for cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with the adoption or
ratification of the constitution and by-laws or amendments thereto, the minutes of
ratification, and the list of members who took part in the ratification;
(b) Misrepresentation, false statements or fraud in connection with the election of officers,
minutes of the election of officers, and the list of voters;
(c) Voluntary dissolution by the members.
R.A. No. 9481 also inserted in the Labor Code Article 242-A, which provides:
ART. 242-A. Reportorial Requirements. The following are documents required to be
submitted to the Bureau by the legitimate labor organization concerned:
(a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and
the list of members who took part in the ratification of the constitution and by-laws within
thirty (30) days from adoption or ratification of the constitution and by-laws or
amendments thereto; cTIESa
(b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30)
days from election;
(c) Its annual financial report within thirty (30) days after the close of every fiscal year;
and
268
(d) Its list of members at least once a year or whenever required by the Bureau.
Failure to comply with the above requirements shall not be a ground for cancellation of
union registration but shall subject the erring officers or members to suspension,
expulsion from membership, or any appropriate penalty.
ILO Convention No. 87, which we have ratified in 1953, provides that "workers' and
employers' organizations shall not be liable to be dissolved or suspended by
administrative authority." The ILO has expressed the opinion that the cancellation of union
registration by the registrar of labor unions, which in our case is the BLR, is tantamount
to dissolution of the organization by administrative authority when such measure would
give rise to the loss of legal personality of the union or loss of advantages necessary for
it to carry out its activities, which is true in our jurisdiction. Although the ILO has allowed
such measure to be taken, provided that judicial safeguards are in place, i.e., the right to
appeal to a judicial body, it has nonetheless reminded its members that dissolution of a
union, and cancellation of registration for that matter, involve serious consequences for
occupational representation. It has, therefore, deemed it preferable if such actions were
to be taken only as a last resort and after exhausting other possibilities with less serious
effects on the organization. 40
The aforesaid amendments and the ILO's opinion on this matter serve to fortify our ruling
in this case. We therefore quote with approval the DOLE Secretary's rationale for denying
the petition, thus:
It is undisputed that appellee failed to submit its annual financial reports and list of
individual members in accordance with Article 239 of the Labor Code.However, the
existence of this ground should not necessarily lead to the cancellation of union
registration. Article 239 recognizes the regulatory authority of the State to exact
compliance with reporting requirements. Yet there is more at stake in this case than
merely monitoring union activities and requiring periodic documentation thereof.
The more substantive considerations involve the constitutionally guaranteed freedom of
association and right of workers to self-organization. Also involved is the public policy to
promote free trade unionism and collective bargaining as instruments of industrial peace
and democracy. An overly stringent interpretation of the statute governing cancellation of
union registration without regard to surrounding circumstances cannot be allowed.
Otherwise, it would lead to an unconstitutional application of the statute and emasculation
of public policy objectives. Worse, it can render nugatory the protection to labor and social
justice clauses that pervades the Constitution and the Labor Code. DECcAS
Moreover, submission of the required documents is the duty of the officers of the union.
It would be unreasonable for this Office to order the cancellation of the union and penalize
the entire union membership on the basis of the negligence of its officers. In National
Union of Bank Employees vs. Minister of Labor, L-53406, 14 December 1981, 110 SCRA
296, the Supreme Court ruled:
As aptly ruled by respondent Bureau of Labor Relations Director Noriel: "The rights of
workers to self-organization finds general and specific constitutional guarantees. . . . Such
constitutional guarantees should not be lightly taken much less nullified. A healthy respect
for the freedom of association demands that acts imputable to officers or members be not
easily visited with capital punishments against the association itself."
At any rate, we note that on 19 May 2000, appellee had submitted its financial statement
for the years 1996-1999. With this submission, appellee has substantially complied with
its duty to submit its financial report for the said period. To rule differently would be to
preclude the union, after having failed to meet its periodic obligations promptly, from
taking appropriate measures to correct its omissions. For the record, we do not view with
269
favor appellee's late submission. Punctuality on the part of the union and its officers could
have prevented this petition. 41
WHEREFORE, premises considered, the Court of Appeals Decision dated May 30, 2005
and Resolution dated June 4, 2007 are AFFIRMED.
SO ORDERED.
Carpio, Leonardo-de Castro, * Abad and Mendoza, JJ., concur.
||| (Heritage Hotel Manila v. National Union of Workers in the Hotel, Restaurant and Allied
Industries-Heritage Hotel Manila Supervisors Chapter, G.R. No. 178296, [January 12,
2011], 654 PHIL 395-413)
9. BOCEA VS. TEVES 661 SCRA 589 (2011)
EN BANC
[G.R. No. 181704. December 6, 2011.]
BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA), represented by its
National President (BOCEA National Executive Council) Mr. Romulo A. Pagulayan,
petitioner, vs. HON. MARGARITO B. TEVES, in his capacity as Secretary of the
Department of Finance, HON. NAPOLEON L. MORALES, in his capacity as
Commissioner of the Bureau of Customs, HON. LILIAN B. HEFTI, in her capacity as
Commissioner of the Bureau of Internal Revenue, respondents.
DECISION
VILLARAMA, JR., J p:
Before this Court is a petition 1 for certiorari and prohibition with prayer for injunctive
relief/s under Rule 65 of the 1997 Rules of Civil Procedure, as amended, to declare
Republic Act (R.A.) No. 9335, 2 otherwise known as the Attrition Act of 2005, and its
Implementing Rules and Regulations 3 (IRR) unconstitutional, and the implementation
thereof be enjoined permanently.
The Facts
On January 25, 2005, former President Gloria Macapagal-Arroyo signed into law R.A. No.
9335 which took effect on February 11, 2005.
In Abakada Guro Party List v. Purisima 4 (Abakada), we said of R.A. No. 9335:
RA [No.] 9335 was enacted to optimize the revenue-generation capability and collection
of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law
intends to encourage BIR and BOC officials and employees to exceed their revenue
targets by providing a system of rewards and sanctions through the creation of a Rewards
and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board). It
covers all officials and employees of the BIR and the BOC with at least six months of
service, regardless of employment status.
The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue
targets for the year, as determined by the Development Budget and Coordinating
Committee (DBCC). Any incentive or reward is taken from the fund and allocated to the
BIR and the BOC in proportion to their contribution in the excess collection of the targeted
amount of tax revenue.
The Boards in the BIR and the BOC are composed of the Secretary of the Department of
Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and
Management (DBM) or his/her Undersecretary, the Director General of the National
270
Economic Development Authority (NEDA) or his/her Deputy Director General, the

Commissioners of the BIR and the BOC or their Deputy Commissioners, two
representatives from the rank-and-file employees and a representative from the officials
nominated by their recognized organization.
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation,
distribution and release of the Fund; (2) set criteria and procedures for removing from the
service officials and employees whose revenue collection falls short of the target; (3)
terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a
system for performance evaluation; (5) perform other functions, including the issuance of
rules and regulations and (6) submit an annual report to Congress. aCTcDH
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked
to promulgate and issue the implementing rules and regulations of RA [No.] 9335, to be
approved by a Joint Congressional Oversight Committee created for such purpose. 5
The Joint Congressional Oversight Committee approved the assailed IRR on May 22,
2006. Subsequently, the IRR was published on May 30, 2006 in two newspapers of
general circulation, the Philippine Star and the Manila Standard, and became effective
fifteen (15) days later. 6
Contending that the enactment and implementation of R.A. No. 9335 are tainted with
constitutional infirmities in violation of the fundamental rights of its members, petitioner
Bureau of Customs Employees Association (BOCEA), an association of rank-and-file
employees of the Bureau of Customs (BOC), duly registered with the Department of Labor
and Employment (DOLE) and the Civil Service Commission (CSC), and represented by
its National President, Mr. Romulo A. Pagulayan (Pagulayan), directly filed the present
petition before this Court against respondents Margarito B. Teves, in his capacity as
Secretary of the Department of Finance (DOF), Commissioner Napoleon L. Morales
(Commissioner Morales), in his capacity as BOC Commissioner, and Lilian B. Hefti, in
her capacity as Commissioner of the Bureau of Internal Revenue (BIR). In its petition,
BOCEA made the following averments:
Sometime in 2008, high-ranking officials of the BOC pursuant to the mandate of R.A. No.
9335 and its IRR, and in order to comply with the stringent deadlines thereof, started to
disseminate Collection District Performance Contracts 7 (Performance Contracts) for the
lower ranking officials and rank-and-file employees to sign. The Performance Contract
pertinently provided:
xxx xxx xxx
WHEREAS, pursuant to the provisions of Sec. 25 (b) of the Implementing Rules and
Regulations (IRR) of the Attrition Act of 2005, that provides for the setting of criteria and
procedures for removing from the service Officials and Employees whose revenue
collection fall short of the target in accordance with Section 7 of Republic Act 9335.
xxx xxx xxx
NOW, THEREFORE, for and in consideration of the foregoing premises, parties unto this
Agreement hereby agree and so agreed to perform the following:
xxx xxx xxx
2. The "Section 2, PA/PE" hereby accepts the allocated Revenue Collection Target and
further accepts/commits to meet the said target under the following conditions:
a.) That he/she will meet the allocated Revenue Collection Target and thereby undertakes
and binds himself/herself that in the event the revenue collection falls short of the target
with due consideration of all relevant factors affecting the level of collection as provided
271
in the rules and regulations promulgated under the Act and its IRR, he/she will voluntarily
submit to the provisions of Sec. 25 (b) of the IRR and Sec. 7 of the Act; and
b.) That he/she will cascade and/or allocate to respective Appraisers/Examiners or
Employees under his/her section the said Revenue Collection Target and require them to
execute a Performance Contract, and direct them to accept their individual target. The
Performance Contract executed by the respective Examiners/Appraisers/Employees
shall be submitted to the Office of the Commissioner through the LAIC on or before March
31, 2008.
xxx xxx xxx 8
BOCEA opined that the revenue target was impossible to meet due to the Government's
own policies on reduced tariff rates and tax breaks to big businesses, the occurrence of
natural calamities and because of other economic factors. BOCEA claimed that some
BOC employees were coerced and forced to sign the Performance Contract. The majority
of them, however, did not sign. In particular, officers of BOCEA were summoned and
required to sign the Performance Contracts but they also refused. To ease the brewing
tension, BOCEA claimed that its officers sent letters, and sought several dialogues with
BOC officials but the latter refused to heed them.
In addition, BOCEA alleged that Commissioner Morales exerted heavy pressure on the
District Collectors, Chiefs of Formal Entry Divisions, Principal Customs Appraisers and
Principal Customs Examiners of the BOC during command conferences to make them
sign their Performance Contracts. Likewise, BOC Deputy Commissioner Reynaldo Umali
(Deputy Commissioner Umali) individually spoke to said personnel to convince them to
sign said contracts. Said personnel were threatened that if they do not sign their
respective Performance Contracts, they would face possible reassignment, reshuffling,
or worse, be placed on floating status. Thus, all the District Collectors, except a certain
Atty. Carlos So of the Collection District III of the Ninoy Aquino International Airport
(NAIA), signed the Performance Contracts. ESCDHA
BOCEA further claimed that Pagulayan was constantly harassed and threatened with
lawsuits. Pagulayan approached Deputy Commissioner Umali to ask the BOC officials to
stop all forms of harassment, but the latter merely said that he would look into the matter.
On February 5, 2008, BOCEA through counsel wrote the Revenue Performance
Evaluation Board (Board) to desist from implementing R.A. No. 9335 and its IRR and from
requiring rank-and-file employees of the BOC and BIR to sign Performance Contracts. 9
In his letter-reply 10 dated February 12, 2008, Deputy Commissioner Umali denied having
coerced any BOC employee to sign a Performance Contract. He also defended the BOC,
invoking its mandate of merely implementing the law. Finally, Pagulayan and BOCEA's
counsel, on separate occasions, requested for a certified true copy of the Performance
Contract from Deputy Commissioner Umali but the latter failed to furnish them a copy. 11
This petition was filed directly with this Court on March 3, 2008. BOCEA asserted that in
view of the unconstitutionality of R.A. No. 9335 and its IRR, and their adverse effects on
the constitutional rights of BOC officials and employees, direct resort to this Court is
justified. BOCEA argued, among others, that its members and other BOC employees are
in great danger of losing their jobs should they fail to meet the required quota provided
under the law, in clear violation of their constitutional right to security of tenure, and at
their and their respective families' prejudice.
In their Comment, 12 respondents, through the Office of the Solicitor General (OSG),
countered that R.A. No. 9335 and its IRR do not violate the right to due process and right
to security of tenure of BIR and BOC employees. The OSG stressed that the guarantee
of security of tenure under the 1987 Constitution is not a guarantee of perpetual
employment. R.A. No. 9335 and its IRR provided a reasonable and valid ground for the
dismissal of an employee which is germane to the purpose of the law. Likewise, R.A. No.
9335 and its IRR provided that an employee may only be separated from the service upon
compliance with substantive and procedural due process. The OSG added that R.A. No.
9335 and its IRR must enjoy the presumption of constitutionality.
272
In its Reply, 13 BOCEA claimed that R.A. No. 9335 employs means that are unreasonable
to achieve its stated objectives; that the law is unduly oppressive of BIR and BOC
employees as it shifts the extreme burden upon their shoulders when the Government
itself has adopted measures that make collection difficult such as reduced tariff rates to
almost zero percent and tax exemption of big businesses; and that the law is
discriminatory of BIR and BOC employees. BOCEA manifested that only the high-ranking
officials of the BOC benefited largely from the reward system under R.A. No. 9335 despite
the fact that they were not the ones directly toiling to collect revenue. Moreover, despite
the BOCEA's numerous requests, 14 BOC continually refused to provide BOCEA the
Expenditure Plan on how such reward was distributed.
Since BOCEA was seeking similar reliefs as that of the petitioners in Abakada Guro Party
List v. Purisima, BOCEA filed a Motion to Consolidate 15 the present case with Abakada
on April 16, 2008. However, pending action on said motion, the Court rendered its
decision in Abakada on August 14, 2008. Thus, the consolidation of this case with
Abakada was rendered no longer possible. 16
In Abakada, this Court, through then Associate Justice, now Chief Justice Renato C.
Corona, declared Section 12 17 of R.A. No. 9335 creating a Joint Congressional
Oversight Committee to approve the IRR as unconstitutional and violative of the principle
of separation of powers. However, the constitutionality of the remaining provisions of R.A.
No. 9335 was upheld pursuant to Section 13 18 of R.A. No. 9335. The Court also held
that until the contrary is shown, the IRR of R.A. No. 9335 is presumed valid and effective
even without the approval of the Joint Congressional Oversight Committee. 19
Notwithstanding our ruling in Abakada, both parties complied with our Resolution 20
dated February 10, 2009, requiring them to submit their respective Memoranda.
The Issues
BOCEA raises the following issues:
I.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.] 9335, AND ITS
IMPLEMENTING RULES AND REGULATIONS ARE UNCONSTITUTIONAL AS THESE
VIOLATE THE RIGHT TO DUE PROCESS OF THE COVERED BIR AND BOC
OFFICIALS AND EMPLOYEES[;]
II.
VIOLATE THE RIGHT OF BIR AND BOC OFFICIALS AND EMPLOYEES TO THE
EQUAL PROTECTION OF THE LAWS[;] AECDHS
III.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS IMPLEMENTING RULES
AND REGULATIONS VIOLATE THE RIGHT TO SECURITY OF TENURE OF BIR AND
BOC OFFICIALS AND EMPLOYEES AS ENSHRINED UNDER SECTION 2 (3),
ARTICLE IX (B) OF THE CONSTITUTION[;]
IV.
AND REGULATIONS ARE UNCONSTITUTIONAL AS THEY CONSTITUTE UNDUE
DELEGATION OF LEGISLATIVE POWERS TO THE REVENUE PERFORMANCE
EVALUATION BOARD IN VIOLATION OF THE PRINCIPLE OF SEPARATION OF
POWERS ENSHRINED IN THE CONSTITUTION[; AND]
V.
273
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A BILL OF ATTAINDER AND

HENCE[,] UNCONSTITUTIONAL BECAUSE IT INFLICTS PUNISHMENT THROUGH
LEGISLATIVE FIAT UPON A PARTICULAR GROUP OR CLASS OF OFFICIALS AND
EMPLOYEES WITHOUT TRIAL. 21
BOCEA manifested that while waiting for the Court to give due course to its petition,
events unfolded showing the patent unconstitutionality of R.A. No. 9335. It narrated that
during the first year of the implementation of R.A. No. 9335, BOC employees exerted
commendable efforts to attain their revenue target of P196 billion which they surpassed
by as much as P2 billion for that year alone. However, this was attained only because oil
companies made advance tax payments to BOC. Moreover, BOC employees were given
their "reward" for surpassing said target only in 2008, the distribution of which they
described as unjust, unfair, dubious and fraudulent because only top officials of BOC got
the huge sum of reward while the employees, who did the hard task of collecting, received
a mere pittance of around P8,500.00. In the same manner, the Bonds Division of BOCNAIA collected 400+% of its designated target but the higher management gave out to
the employees a measly sum of P8,500.00 while the top level officials partook of millions
of the excess collections. BOCEA relies on a piece of information revealed by a
newspaper showing the list of BOC officials who apparently earned huge amounts of
money by way of reward. 22 It claims that the recipients thereof included lawyers, support
personnel and other employees, including a dentist, who performed no collection
functions at all. These alleged anomalous selection, distribution and allocation of rewards
was due to the failure of R.A. No. 9335 to set out clear guidelines. 23
In addition, BOCEA avers that the Board initiated the first few cases of attrition for the
Fiscal Year 2007 by subjecting five BOC officials from the Port of Manila to attrition
despite the fact that the Port of Manila substantially complied with the provisions of R.A.
No. 9335. It is thus submitted that the selection of these officials for attrition without proper
investigation was nothing less than arbitrary. Further, the legislative and executive
departments' promulgation of issuances and the Government's accession to regional
trade agreements have caused a significant diminution of the tariff rates, thus, decreasing
over-all collection. These unrealistic settings of revenue targets seriously affect BIR and
BOC employees tasked with the burden of collection, and worse, subjected them to
attrition. 24
BOCEA assails the constitutionality of R.A. No. 9335 and its IRR on the following grounds:
1. R.A. No. 9335 and its IRR violate the BIR and BOC employees' right to due process
because the termination of employees who had not attained their revenue targets for the
year is peremptory and done without any form of hearing to allow said employees to
ventilate their side. Moreover, R.A. No. 9335 and its IRR do not comply with the
requirements under CSC rules and regulations as the dismissal in this case is
immediately executory. Such immediately executory nature of the Board's decision
negates the remedies available to an employee as provided under the CSC rules.
2. R.A. No. 9335 and its IRR violate the BIR and BOC employees' right to equal protection
of the law because R.A. No. 9335 and its IRR unduly discriminates against BIR and BOC
employees as compared to employees of other revenue generating government agencies
like the Philippine Amusement and Gaming Corporation, Department of Transportation
and Communication, the Air Transportation Office, the Land Transportation Office, and
the Philippine Charity Sweepstakes Office, among others, which are not subject to
attrition.
3. R.A. No. 9335 and its IRR violate the BIR and BOC employees' right to security of
tenure because R.A. No. 9335 and its IRR effectively removed remedies provided in the
ordinary course of administrative procedure afforded to government employees. The law
likewise created another ground for dismissal, i.e., non-attainment of revenue collection
target, which is not provided under CSC rules and which is, by its nature, unpredictable
and therefore arbitrary and unreasonable. SDaHEc
274
4. R.A. No. 9335 and its IRR violate the 1987 Constitution because Congress granted to
the Revenue Performance Evaluation Board (Board) the unbridled discretion of
formulating the criteria for termination, the manner of allocating targets, the distribution of
rewards and the determination of relevant factors affecting the targets of collection, which
is tantamount to undue delegation of legislative power.
5. R.A. No. 9335 is a bill of attainder because it inflicts punishment upon a particular group
or class of officials and employees without trial. This is evident from the fact that the law
confers upon the Board the power to impose the penalty of removal upon employees who
do not meet their revenue targets; that the same is without the benefit of hearing; and that
the removal from service is immediately executory. Lastly, it disregards the presumption
of regularity in the performance of the official functions of a public officer. 25
On the other hand, respondents through the OSG stress that except for Section 12 of
R.A. No. 9335, R.A. No. 9335 and its IRR are constitutional, as per our ruling in Abakada.
Nevertheless, the OSG argues that the classification of BIR and BOC employees as
public officers under R.A. No. 9335 is based on a valid and substantial distinction since
the revenue generated by the BIR and BOC is essentially in the form of taxes, which is
the lifeblood of the State, while the revenue produced by other agencies is merely
incidental or secondary to their governmental functions; that in view of their mandate, and
for purposes of tax collection, the BIR and BOC are sui generis; that R.A. No. 9335
complies with the "completeness" and "sufficient standard" tests for the permissive
delegation of legislative power to the Board; that the Board exercises its delegated power
consistent with the policy laid down in the law, that is, to optimize the revenue generation
capability and collection of the BIR and the BOC; that parameters were set in order that
the Board may identify the officials and employees subject to attrition, and the proper
procedure for their removal in case they fail to meet the targets set in the Performance
Contract were provided; and that the rights of BIR and BOC employees to due process
of law and security of tenure are duly accorded by R.A. No. 9335. The OSG likewise
maintains that there was no encroachment of judicial power in the enactment of R.A. No.
9335 amounting to a bill of attainder since R.A. No. 9335 and its IRR merely defined the
offense and provided for the penalty that may be imposed. Finally, the OSG reiterates
that the separation from the service of any BIR or BOC employee under R.A. No. 9335
and its IRR shall be done only upon due consideration of all relevant factors affecting the
level of collection, subject to Civil Service laws, rules and regulations, and in compliance
with substantive and procedural due process. The OSG opines that the Performance
Contract, far from violating the BIR and BOC employees' right to due process, actually
serves as a notice of the revenue target they have to meet and the possible
consequences of failing to meet the same. More, there is nothing in the law which
prevents the aggrieved party from appealing the unfavorable decision of dismissal. 26
In essence, the issues for our resolution are:
1. Whether there is undue delegation of legislative power to the Board;
2. Whether R.A. No. 9335 and its IRR violate the rights of BOCEA's members to: (a) equal
protection of laws, (b) security of tenure and (c) due process; and
3. Whether R.A. No. 9335 is a bill of attainder.
Our Ruling
Prefatorily, we note that it is clear, and in fact uncontroverted, that BOCEA has locus
standi. BOCEA impugns the constitutionality of R.A. No. 9335 and its IRR because its
members, who are rank-and-file employees of the BOC, are actually covered by the law
and its IRR. BOCEA's members have a personal and substantial interest in the case,
such that they have sustained or will sustain, direct injury as a result of the enforcement
of R.A. No. 9335 and its IRR. 27
However, we find no merit in the petition and perforce dismiss the same.
275
It must be noted that this is not the first time the constitutionality of R.A. No. 9335 and its
IRR are being challenged. The Court already settled the majority of the same issues
raised by BOCEA in our decision in Abakada, which attained finality on September 17,
2008. As such, our ruling therein is worthy of reiteration in this case.
We resolve the first issue in the negative.
The principle of separation of powers ordains that each of the three great branches of
government has exclusive cognizance of and is supreme in matters falling within its own
constitutionally allocated sphere. 28 Necessarily imbedded in this doctrine is the principle
of non-delegation of powers, as expressed in the Latin maxim potestas delegata non
delegari potest, which means "what has been delegated, cannot be delegated." This
doctrine is based on the ethical principle that such delegated power constitutes not only
a right but a duty to be performed by the delegate through the instrumentality of his own
judgment and not through the intervening mind of another. 29 However, this principle of
non-delegation of powers admits of numerous exceptions, 30 one of which is the
delegation of legislative power to various specialized administrative agencies like the
Board in this case. cDACST
The rationale for the aforementioned exception was clearly explained in our ruling in
Gerochi v. Department of Energy, 31 to wit:
In the face of the increasing complexity of modern life, delegation of legislative power to
various specialized administrative agencies is allowed as an exception to this principle.
Given the volume and variety of interactions in today's society, it is doubtful if the
legislature can promulgate laws that will deal adequately with and respond promptly to
the minutiae of everyday life. Hence, the need to delegate to administrative bodies the
principal agencies tasked to execute laws in their specialized fields the authority to
promulgate rules and regulations to implement a given statute and effectuate its policies.
All that is required for the valid exercise of this power of subordinate legislation is that the
regulation be germane to the objects and purposes of the law and that the regulation be
not in contradiction to, but in conformity with, the standards prescribed by the law. These
requirements are denominated as the completeness test and the sufficient standard test.
32
Thus, in Abakada, we held,
Two tests determine the validity of delegation of legislative power: (1) the completeness
test and (2) the sufficient standard test. A law is complete when it sets forth therein the
policy to be executed, carried out or implemented by the delegate. It lays down a sufficient
standard when it provides adequate guidelines or limitations in the law to map out the
boundaries of the delegate's authority and prevent the delegation from running riot. To be
sufficient, the standard must specify the limits of the delegate's authority, announce the
legislative policy and identify the conditions under which it is to be implemented.
RA [No.] 9335 adequately states the policy and standards to guide the President in fixing
revenue targets and the implementing agencies in carrying out the provisions of the law.
Section 2 spells out the policy of the law:
"SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenuegeneration capability and collection of the Bureau of Internal Revenue (BIR) and the
Bureau of Customs (BOC) by providing for a system of rewards and sanctions through
the creation of a Rewards and Incentives Fund and a Revenue Performance Evaluation
Board in the above agencies for the purpose of encouraging their officials and employees
to exceed their revenue targets."
Section 4 "canalized within banks that keep it from overflowing" the delegated power to
the President to fix revenue targets:
"SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter
referred to as the Fund, is hereby created, to be sourced from the collection of the BIR
and the BOC in excess of their respective revenue targets of the year, as determined by
276
the Development Budget and Coordinating Committee (DBCC), in the following

percentages:
Excess of Collection
Percent (%) of the Excess

[Over] the Revenue
Collection to Accrue to the
Targets
Fund
30% or below
15%
More than 30%
15% of the first 30% plus

20% of the remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the
year when the revenue collection target was exceeded and shall be released on the same
fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the
BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and
Sources of Financing (BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies' revenue targets as
allocated among its revenue districts in the case of the BIR, and the collection districts in
the case of the BOC.
xxx xxx xxx"
Revenue targets are based on the original estimated revenue collection expected
respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and
stated in the BESF submitted by the President to Congress. Thus, the determination of
revenue targets does not rest solely on the President as it also undergoes the scrutiny of
the DBCC.
On the other hand, Section 7 specifies the limits of the Board's authority and identifies the
conditions under which officials and employees whose revenue collection falls short of
the target by at least 7.5% may be removed from the service:
"SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the
following powers and functions: DACIHc
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials and employees
whose revenue collection falls short of the target by at least seven and a half percent
(7.5%), with due consideration of all relevant factors affecting the level of collection as
provided in the rules and regulations promulgated under this Act, subject to civil service
laws, rules and regulations and compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years
in operation, and has no historical record of collection performance that can be used as
basis for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in the middle
of the period under consideration unless the transfer was due to nonperformance of
revenue targets or potential nonperformance of revenue targets: Provided, however, That
when the district or area of responsibility covered by revenue or customs officials or
employees has suffered from economic difficulties brought about by natural calamities or
force majeure or economic causes as may be determined by the Board, termination shall
be considered only after careful and proper review by the Board.
277
(c) To terminate personnel in accordance with the criteria adopted in the preceding
paragraph: Provided, That such decision shall be immediately executory: Provided,
further, That the application of the criteria for the separation of an official or employee
from service under this Act shall be without prejudice to the application of other relevant
laws on accountability of public officers and employees, such as the Code of Conduct
and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt
Practices Act;
xxx xxx xxx"
At any rate, this Court has recognized the following as sufficient standards: "public
interest", "justice and equity", "public convenience and welfare" and "simplicity, economy
and welfare". In this case, the declared policy of optimization of the revenue-generation
capability and collection of the BIR and the BOC is infused with public interest. 33
We could not but deduce that the completeness test and the sufficient standard test were
fully satisfied by R.A. No. 9335, as evident from the aforementioned Sections 2, 4 and 7
thereof. Moreover, Section 5 34 of R.A. No. 9335 also provides for the incentives due to
District Collection Offices. While it is apparent that the last paragraph of Section 5
provides that "[t]he allocation, distribution and release of the district reward shall likewise
be prescribed by the rules and regulations of the Revenue Performance and Evaluation
Board," Section 7 (a) 35 of R.A. No. 9335 clearly mandates and sets the parameters for
the Board by providing that such rules and guidelines for the allocation, distribution and
release of the fund shall be in accordance with Sections 4 and 5 of R.A. No. 9335. In sum,
the Court finds that R.A. No. 9335, read and appreciated in its entirety, is complete in all
its essential terms and conditions, and that it contains sufficient standards as to negate
BOCEA's supposition of undue delegation of legislative power to the Board.
Similarly, we resolve the second issue in the negative.
Equal protection simply provides that all persons or things similarly situated should be
treated in a similar manner, both as to rights conferred and responsibilities imposed. The
purpose of the equal protection clause is to secure every person within a state's
jurisdiction against intentional and arbitrary discrimination, whether occasioned by the
express terms of a statute or by its improper execution through the state's duly constituted
authorities. In other words, the concept of equal justice under the law requires the state
to govern impartially, and it may not draw distinctions between individuals solely on
differences that are irrelevant to a legitimate governmental objective. 36
Thus, on the issue on equal protection of the laws, we held in Abakada:
The equal protection clause recognizes a valid classification, that is, a classification that
has a reasonable foundation or rational basis and not arbitrary. With respect to RA [No.]
9335, its expressed public policy is the optimization of the revenue-generation capability
and collection of the BIR and the BOC. Since the subject of the law is the revenuegeneration capability and collection of the BIR and the BOC, the incentives and/or
sanctions provided in the law should logically pertain to the said agencies. Moreover, the
law concerns only the BIR and the BOC because they have the common distinct primary
function of generating revenues for the national government through the collection of
taxes, customs duties, fees and charges.
The BIR performs the following functions: CDaSAE
"Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which
shall be headed by and subject to the supervision and control of the Commissioner of
Internal Revenue, who shall be appointed by the President upon the recommendation of
the Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
278
(2) Exercise duly delegated police powers for the proper performance of its functions and
duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
(5) Perform such other functions as may be provided by law.
xxx xxx xxx"
On the other hand, the BOC has the following functions:
"Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and
subject to the management and control of the Commissioner of Customs, who shall be
appointed by the President upon the recommendation of the Secretary [of the DOF] and
hereinafter referred to as Commissioner, shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all
ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels
and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its
jurisdiction;
(8) Exercise supervision and control over its constituent units;
xxx xxx xxx"
Both the BIR and the BOC are bureaus under the DOF. They principally perform the
special function of being the instrumentalities through which the State exercises one of
its great inherent functions taxation. Indubitably, such substantial distinction is
germane and intimately related to the purpose of the law. Hence, the classification and
treatment accorded to the BIR and the BOC under RA [No.] 9335 fully satisfy the demands
of equal protection. 37
As it was imperatively correlated to the issue on equal protection, the issues on the
security of tenure of affected BIR and BOC officials and employees and their entitlement
to due process were also settled in Abakada:
Clearly, RA [No.] 9335 in no way violates the security of tenure of officials and employees
of the BIR and the BOC. The guarantee of security of tenure only means that an employee
cannot be dismissed from the service for causes other than those provided by law and
only after due process is accorded the employee. In the case of RA [No.] 9335, it lays
down a reasonable yardstick for removal (when the revenue collection falls short of the
target by at least 7.5%) with due consideration of all relevant factors affecting the level of
279
collection. This standard is analogous to inefficiency and incompetence in the

performance of official duties, a ground for disciplinary action under civil service laws. The
action for removal is also subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process. 38 HCTAEc
In addition, the essence of due process is simply an opportunity to be heard, or as applied
to administrative proceedings, a fair and reasonable opportunity to explain one's side. 39
BOCEA's apprehension of deprivation of due process finds its answer in Section 7 (b)
and (c) of R.A. No. 9335. 40 The concerned BIR or BOC official or employee is not simply
given a target revenue collection and capriciously left without any quarter. R.A. No. 9335
and its IRR clearly give due consideration to all relevant factors 41 that may affect the
level of collection. In the same manner, exemptions 42 were set, contravening BOCEA's
claim that its members may be removed for unattained target collection even due to
causes which are beyond their control. Moreover, an employee's right to be heard is not
at all prevented and his right to appeal is not deprived of him. 43 In fine, a BIR or BOC
official or employee in this case cannot be arbitrarily removed from the service without
according him his constitutional right to due process. No less than R.A. No. 9335 in
accordance with the 1987 Constitution guarantees this.
We have spoken, and these issues were finally laid to rest. Now, the Court proceeds to
resolve the last, but new issue raised by BOCEA, that is, whether R.A. No. 9335 is a bill
of attainder proscribed under Section 22, 44 Article III of the 1987 Constitution.
On this score, we hold that R.A. No. 9335 is not a bill of attainder. A bill of attainder is a
legislative act which inflicts punishment on individuals or members of a particular group
without a judicial trial. Essential to a bill of attainder are a specification of certain
individuals or a group of individuals, the imposition of a punishment, penal or otherwise,
and the lack of judicial trial. 45
In his Concurring Opinion in Tuason v. Register of Deeds, Caloocan City, 46 Justice
Florentino P. Feliciano traces the roots of a Bill of Attainder, to wit:
Bills of attainder are an ancient instrument of tyranny. In England a few centuries back,
Parliament would at times enact bills or statutes which declared certain persons attainted
and their blood corrupted so that it lost all heritable quality (Ex Parte Garland, 4 Wall. 333,
18 L.Ed. 366 [1867]). In more modern terms, a bill of attainder is essentially a usurpation
of judicial power by a legislative body. It envisages and effects the imposition of a penalty
the deprivation of life or liberty or property not by the ordinary processes of judicial
trial, but by legislative fiat. While cast in the form of special legislation, a bill of attainder
(or bill of pains and penalties, if it prescribed a penalty other than death) is in intent and
effect a penal judgment visited upon an identified person or group of persons (and not
upon the general community) without a prior charge or demand, without notice and
hearing, without an opportunity to defend, without any of the civilized forms and
safeguards of the judicial process as we know it (People v. Ferrer, 48 SCRA 382 [1972];
Cummings and Missouri, 4 Wall. 277, 18 L. Ed. 356 [1867]; U.S. v. Lovett, 328, U.S. 303,
90 L.Ed. 1252 [1945]; U.S. v. Brown, 381 U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such is the
archetypal bill of attainder wielded as a means of legislative oppression. . . . 47
R.A. No. 9335 does not possess the elements of a bill of attainder. It does not seek to
inflict punishment without a judicial trial. R.A. No. 9335 merely lays down the grounds for
the termination of a BIR or BOC official or employee and provides for the consequences
thereof. The democratic processes are still followed and the constitutional rights of the
concerned employee are amply protected.
A final note.
We find that BOCEA's petition is replete with allegations of defects and anomalies in
allocation, distribution and receipt of rewards. While BOCEA intimates that it intends to
curb graft and corruption in the BOC in particular and in the government in general which
is nothing but noble, these intentions do not actually pertain to the constitutionality of R.A.
No. 9335 and its IRR, but rather in the faithful implementation thereof. R.A. No. 9335 itself
does not tolerate these pernicious acts of graft and corruption. 48 As the Court is not a
trier of facts, the investigation on the veracity of, and the proper action on these anomalies
280
are in the hands of the Executive branch. Correlatively, the wisdom for the enactment of
this law remains within the domain of the Legislative branch. We merely interpret the law
as it is. The Court has no discretion to give statutes a meaning detached from the manifest
intendment and language thereof. 49 Just like any other law, R.A. No. 9335 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. 50 We have so declared in Abakada, and we now reiterate that R.A.
No. 9335 and its IRR are constitutional.
WHEREFORE, the present petition for certiorari and prohibition with prayer for injunctive
relief/s is DISMISSED.
No costs. cCESaH
SO ORDERED.
Corona, C.J., Carpio, Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad,
Perez, Mendoza, Sereno, Reyes and Perlas-Bernabe, JJ., concur.
Velasco, Jr., J., is on official leave.
||| (Bureau of Customs Employees Association v. Teves, G.R. No. 181704, [December 6,
2011], 677 PHIL 636-671)
10. CABALIT VS. COA 663 SCRA 133 (2012)
EN BANC
[G.R. No. 180236. January 17, 2012.]
GEMMA P. CABALIT, petitioner, vs. COMMISSION ON AUDIT-REGION VII, respondent.
[G.R. No. 180341 January 17, 2012]
FILADELFO S. APIT, petitioner, vs. COMMISSION ON AUDIT (COA) Legal and
Adjudication, Region VII, respondent.
[G.R. No. 180342 January 17, 2012]
LEONARDO G. OLAIVAR, in his capacity as Transportation Regulation Officer and
Officer-In-Charge of Land Transportation Office, Jagna, Province of Bohol, petitioner, vs.
HON. PRIMO C. MIRO, in his official capacity as Deputy Ombudsman for Visayas,
EDGARDO G. CANTON, in his capacity as Graft Investigator Officer, ATTY. ROY L.
URSAL, in his capacity as Regional Cluster Director, Commission on Audit, Cebu City,
respondents.
DECISION
Three employees from the Land Transportation Office (LTO) in Jagna, Bohol were found
by the Ombudsman to have perpetrated a scheme to defraud the government of proper
motor vehicle registration fees. They now seek in the present consolidated petitions a
judgment from this Court annulling the January 18, 2006 Decision 1 and September 21,
2007 Resolution 2 of the Court of Appeals (CA) which affirmed with modification the
Decision 3 of the Office of the Ombudsman-Visayas dismissing them from government
service.
The facts follow:
On September 4, 2001, the Philippine Star News, a local newspaper in Cebu City,
reported that employees of the LTO in Jagna, Bohol, are shortchanging the government
by tampering with their income reports. 4 Accordingly, Regional Director Ildefonso T.
281
Deloria of the Commission on Audit (COA) directed State Auditors Teodocio D. Cabalit
and Emmanuel L. Coloma of the Provincial Revenue Audit Group to conduct a fact-finding
investigation. A widespread tampering of official receipts of Motor Vehicle Registration
during the years 1998, 1999, 2000 and 2001 was then discovered by the investigators.
According to the investigators, a total of 106 receipts were tampered. The scheme was
done by detaching the Plate Release and Owner's copy from the set of official receipts
then typing thereon the correct details corresponding to the vehicle registered, the
owner's name and address, and the correct amount of registration fees. The other copies,
consisting of the copies for the Collector, EDP, Record, Auditor, and Regional Office,
meanwhile, were typed on to make it appear that the receipts were issued mostly for the
registration of motorcycles with much lower registration charges. Incorrect names and/or
addresses were also used on said file copies. The difference between the amounts paid
by the vehicle owners and the amounts appearing on the file copies were then pocketed
by the perpetrators, and only the lower amounts appearing on the retained duplicate file
copies were reported in the Report of Collections. 5 According to State Auditors Cabalit
and Coloma in their Joint-Affidavit, the scheme was perpetrated by LTO employees
Leonardo G. Olaivar, Gemma P. Cabalit, Filadelfo S. Apit and Samuel T. Alabat, and
resulted in an unreported income totaling P169,642.50. 6 aCTcDH
On August 8, 2002, COA Regional Cluster Director Atty. Roy L. Ursal reported the
tampering of official receipts to Deputy Ombudsman Primo C. Miro. 7 According to Atty.
Ursal, the irregularity is penalized under Article 217, in relation to Article 171 of the
Revised Penal Code; 8 Section 3 (e) 9 of the Anti-Graft and Corrupt Practices Act, and
likewise violates Republic Act (R.A.) No. 6713. 10
In a Joint Evaluation Report, Graft Investigators Pio R. Dargantes and Virginia PalancaSantiago found grounds to conduct a preliminary investigation. 11 Hence, a formal charge
for dishonesty was filed against Olaivar, Cabalit, Apit and Alabat before the Office of the
Ombudsman-Visayas, and the parties were required to submit their counter-affidavits.
In compliance, Olaivar, Cabalit, Apit and Alabat submitted separate counter-affidavits, all
essentially denying knowledge and responsibility for the anomalies. As to Olaivar, he
maintained that the receipts were typed outside his office by regular and casual
employees. He claimed that the receipts were presented to him only for signature and he
does not receive the payment when he signs the receipts. 12 Cabalit, for her part, claimed
that her duty as cashier was to receive collections turned over to her and to deposit them
in the Land Bank of the Philippines in Tagbilaran City. She claimed that she was not even
aware of any anomaly in the collection of fees prior to the investigation. 13 As to Apit, he
admitted that he countersigned the official receipts, but he too denied being aware of any
illegal activity in their office. He claimed that upon being informed of the charge, he verified
the photocopies of the tampered receipts and was surprised to find that the signatures
above his name were falsified. 14 Alabat, meanwhile, claimed he did not tamper, alter or
falsify any public document in the performance of his duties. He insisted that the initial
above his name on Official Receipt No. 64056082 was Apit's, while the initial on Official
Receipt No. 64056813 was that of Olaivar. 15
During the hearing before Graft Investigator Pio R. Dargantes, State Auditor Cabalit
testified on the investigation he conducted in the LTO in Jagna, Bohol. He testified that
he was furnished with the owner's and duplicate copies of the tampered receipts. Upon
comparison of the Owner's copy with the Collector or Record's copy, he noticed that the
amounts shown in the original copies were much bigger than those appearing in the file
copies. State Auditor Cabalit also declared that the basis for implicating Olaivar is the fact
that his signature appears in all the 106 tampered official receipts and he signed as
verified correct the Report of Collections, which included the tampered receipts. As to Apit
and Cabalit, they are the other signatories of the official receipts. 16 In some official
receipts, the Owner's copy is signed by F.S. Apit as Computer Evaluator, G.P. Cabalit as
Cashier, and Leonardo Olaivar as District Head, but their signatures do not appear on the
file copies. 17
On February 12, 2004, the Office of the Ombudsman-Visayas directed 18 the parties to
submit their position papers pursuant to Administrative Order (A.O.) No. 17, dated
282
September 7, 2003, amending the Rules of Procedure of the Office of the Ombudsman.
19 No cross-examination of State Auditor Cabalit was therefore conducted. SIEHcA
Complying with the above Order, the COA submitted its position paper on March 18,
2004. Olaivar, Cabalit and Apit, for their part, respectively submitted their position papers
on April 29, 2004, March 18, 2004 and March 15, 2004.
In its position paper, 20 the COA pointed out that the signatures of Cabalit, Apit and
Olaivar were indispensable to the issuance of the receipts. As to Olaivar, the original
receipts bear his signature, thereby showing that he approved of the amounts collected
for the registration charges. However, when the receipts were reported in the Report of
Collections, the data therein were already tampered reflecting a much lesser amount. By
affixing his signature on the Report of Collections and thereby attesting that the entries
therein were verified by him as correct, he allowed the scheme to be perpetrated. As to
Cabalit, the COA pointed out that as cashier, Cabalit's signature on the receipts signified
that she received the registration fees. The correct amounts should have therefore
appeared in the Report of Collections, but as already stated, lesser amounts appeared
on the Report of Collections, which she prepares. In the same manner, Apit, as computer
evaluator, also signed the subject receipts allowing the irregularities to be perpetuated.
In his position paper, 21 Olaivar meanwhile insisted that he had no participation in the
anomalies. He stressed that his only role in the issuance of the official receipts was to
review and approve the applications, and that he was the last one to sign the official
receipts. He argued that based on the standard procedure for the processing of
applications for registration of motor vehicles, it could be deduced that there was a
concerted effort or conspiracy among the evaluator, typist and cashier, while he was kept
blind of their modus operandi.
Cabalit, for her part, questioned the findings of the investigators. She stressed in her
position paper 22 that had there been a thorough investigation of the questioned official
receipts, the auditors would have discovered that the signatures appearing above her
name were actually that of Olaivar. She outlined the standard paper flow of a regular
transaction at the LTO. It begins when the registrant goes to the computer evaluator for
the computation of applicable fees and proceeds to the cashier for payment. After paying,
the typist will prepare the official receipts consisting of seven (7) copies, which will be
routed to the computer evaluator, to the district head, and to the cashier for signature.
The cashier retains the copies for the EDP, Regional Office, Collector and Auditor, while
the remaining copies (Owner, Plate Release and Record's copy) will be forwarded to the
Releasing Section for distribution and release.
Cabalit insisted that on several occasions Olaivar disregarded the standard procedure
and directly accommodated some registrants who were either his friends or referred to
him by friends. For such transactions, Olaivar assumes the functions of computer
evaluator, typist and cashier, as he is the one who computes the fees, receives the
payment and prepares the official receipts. Olaivar would then remit the payment to her.
As the cashier, she has to accept the payment as a matter of ministerial duty.
Apit, meanwhile, stressed in his position paper 23 that the strokes of the signatures
appearing above his typewritten name on the official receipts are different, indicating that
the same are falsified. He also explained that considering that the LTO in Jagna issues
around 20 to 25 receipts a day, he signed the receipts relying on the faith that his coemployees had properly accomplished the forms. He also pointed out that Engr. Dano
admitted signing accomplished official receipts when the regular computer encoder is out,
which just shows that other personnel could have signed above the name of F.S. Apit.
IHAcCS
On May 3, 2004, the Office of the Ombudsman-Visayas rendered judgment finding
petitioners liable for dishonesty for tampering the official receipts to make it appear that
they collected lesser amounts than they actually collected. The OMB-Visayas ruled:
WHEREFORE, premises considered, it is hereby resolved that the following respondents
be found guilty of the administrative infraction of DISHONESTY and accordingly be meted
out the penalty of DISMISSAL FROM THE SERVICE with the accessory penalties of
cancellation of civil service eligibility, forfeiture of retirement benefits and disqualification
from re-employment in the government service:
283
1. Leonardo G. Olaivar Transportation Regulation Officer II/Office[r]-In-Charge

LTO Jagna District Office
Jagna, Bohol;
2. Gemma P. Cabalit Cashier II, LTO Jagna District Office Jagna, Bohol;
3. Filadelpo S. Apit Clerk II, LTO Jagna District Office Jagna, Bohol;
The complaint against respondent Samuel T. Alabat, presently the Head of Apprehension
Unit of the Tagbilaran City LTO, is hereby DISMISSED for insufficiency of evidence.
The complaint regarding the LTO official receipts/MVRRs issued by the LTO Jagna
District Office, which are not covered by original copies are hereby DISMISSED without
prejudice to the filing of the appropriate charges upon the recovery of the original copies
thereof.
SO DECIDED. 24
Petitioners sought reconsideration of the decision, but their motions were denied by the
Ombudsman. 25 Thus, they separately sought recourse from the CA.
On January 18, 2006, the CA promulgated the assailed Decision in CA-G.R. SP. Nos.
86256, 86394 and 00047. The dispositive portion of the CA decision reads,
WHEREFORE, premises considered, judgment is hereby rendered by US DISMISSING
the instant consolidated petitions. The assailed decision of the Office of the OmbudsmanVisayas dated May 3, 2004 in OMB-V-A-02-0415-H is hereby AFFIRMED with a
modification that petitioner Olaivar be held administratively liable for gross neglect of duty
which carries the same penalty as provided for dishonesty. No pronouncement as to
costs.
SO ORDERED. 26
According to the CA, it was unbelievable that from 1998 to 2001, Cabalit and Apit
performed vital functions by routinely signing LTO official receipts but did not have any
knowledge of the irregularity in their office. With regard to Olaivar, the CA believed that
the tampering of the receipts could have been avoided had he exercised the required
diligence in the performance of his duties. Thus, the CA held him liable merely for gross
neglect of duty. ACTEHI
Petitioners sought reconsideration of the CA decision, but the CA denied their motions.
27 Hence, they filed the instant petitions before the Court.
In her petition, petitioner Cabalit argues that
I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE
OMBUDSMAN'S DECISION WHICH GAVE RETROACTIVE EFFECT TO THE NEW
ADMINISTRATIVE ORDER NO. 17 IN THE PROCEEDINGS BELOW THAT WAS
ALREADY ON TRIAL IN ACCORDANCE WITH ADMINISTRATIVE ORDER NO. 07.
II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
ALTHOUGH THE TRIAL TYPE HEARING UNDER ADMINISTRATIVE ORDER NO. 07
DID NOT PUSH THRU, PETITIONER WAS STILL ACCORDED HER RIGHT TO DUE
PROCESS
UNDER
THE
SUMMARY
PROCEEDINGS
PURSUANT
TO
ADMINISTRATIVE ORDER NO. 17.
III. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR
WHEN IT AFFIRMED THE DECISION OF RESPONDENT OMBUDSMAN DESPITE
HAVING FAILED TO MAKE A CATEGORICAL RULING ON THE ISSUE OF WHETHER
284
THE QUESTIONED AND/OR FORGED SIGNATURES BELONG TO PETITIONER

GEMMA CABALIT.
IV. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR
WHEN IT FAILED TO RULE ON THE DOCTRINAL VALUE AND/OR APPLICABILITY
OF THE TAPIADOR VS. OFFICE OF THE OMBUDSMAN (G.R. [129124], MARCH 15,
2002) RULING HERE IN THE INSTANT CASE. 28
Meanwhile, Apit interposes the following arguments in his petition:
I. THE COURT OF APPEALS ERRED IN LIMITING ADMINISTRATIVE DUE PROCESS
AS AN OPPORTUNITY TO BE HEARD ONLY.
II. THE COURT OF APPEALS ERRED IN CONCLUDING THE DEFENSE OF
PETITIONER APIT AS MERE DENIAL.
III. THE COURT OF APPEALS ERRED IN ITS FAILURE TO RECONSIDER THE
EVIDENCE THAT CLEARLY PROVED THAT THE SIGNATURES ABOVE THE NAME
OF PETITIONER APIT IN THE QUESTIONED RECEIPTS ARE ALL FORGED AND
FALSIFIED. 29
As for Olaivar, he assails the CA Decision raising the following issues:
I. WHETHER THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT
PETITIONER LEONARDO G. OLAIVAR IS ADMINISTRATIVELY LIABLE FOR GROSS
NEGLIGENCE.
II. WHETHER THE HONORABLE COURT OF APPEALS ERRED WHEN IT HELD THAT
PETITIONER LEONARDO G. OLAIVAR WAS NOT DENIED DUE PROCESS WHEN
THE OFFICE OF THE OMBUDSMAN VISAYAS FOUND HIM GUILTY FOR
DISHONESTY AND METED OUT THE PENALTY OF DISMISSAL FROM SERVICE. 30
On January 15, 2008, said petitions were consolidated. 31
Essentially, the issues for our resolution are: (1) whether there was a violation of the right
to due process when the hearing officer at the Office of the Ombudsman-Visayas adopted
the procedure under A.O. No. 17 notwithstanding the fact that the said amendatory order
took effect after the hearings had started; and (2) whether Cabalit, Apit and Olaivar are
administratively liable.
As regards the first issue, petitioners claim that they were denied due process of law when
the investigating lawyer proceeded to resolve the case based only on the affidavits and
other evidence on record without conducting a formal hearing. They lament that the case
was submitted for decision without giving them opportunity to present witnesses and
cross-examine the witnesses against them. Petitioner Cabalit also argues that the Office
of the Ombudsman erred in applying the amendments under A.O. No. 17 to the trial of
the case, which was already in progress under the old procedures under A.O. No. 07.
She stressed that under A.O. No. 07, she had the right to choose whether to avail of a
formal investigation or to submit the case for resolution on the basis of the evidence on
record. Here, she was not given such option and was merely required to submit her
position paper.
Petitioners' arguments deserve scant consideration.
Suffice to say, petitioners were not denied due process of law when the investigating
lawyer proceeded to resolve the case based on the affidavits and other evidence on
record. Section 5 (b) (1) 32 Rule 3, of the Rules of Procedure of the Office of the
Ombudsman, as amended by A.O. No. 17, plainly provides that the hearing officer may
issue an order directing the parties to file, within ten days from receipt of the order, their
respective verified position papers on the basis of which, along with the attachments
thereto, the hearing officer may consider the case submitted for decision. It is only when
the hearing officer determines that based on the evidence, there is a need to conduct
clarificatory hearings or formal investigations under Section 5 (b) (2) and Section 5 (b) (3)
285
that such further proceedings will be conducted. But the determination of the necessity
for further proceedings rests on the sound discretion of the hearing officer. As the
petitioners have utterly failed to show any cogent reason why the hearing officer's
determination should be overturned, the determination will not be disturbed by this Court.
We likewise find no merit in their contention that the new procedures under A.O. No. 17,
which took effect while the case was already undergoing trial before the hearing officer,
should not have been applied. SCEHaD
The rule in this jurisdiction is that one does not have a vested right in procedural rules. In
Tan, Jr. v. Court of Appeals, 33 the Court elucidated:
Statutes regulating the procedure of the courts will be construed as applicable to actions
pending and undetermined at the time of their passage. Procedural laws are retroactive
in that sense and to that extent. The fact that procedural statutes may somehow affect
the litigants' rights may not preclude their retroactive application to pending actions. The
retroactive application of procedural laws is not violative of any right of a person who may
feel that he is adversely affected. Nor is the retroactive application of procedural statutes
constitutionally objectionable. The reason is that as a general rule no vested right may
attach to, nor arise from, procedural laws. It has been held that a person has no vested
right in any particular remedy, and a litigant cannot insist on the application to the trial of
his case, whether civil or criminal, of any other than the existing rules of procedure.
(Emphasis supplied.)
While the rule admits of certain exceptions, such as when the statute itself expressly or
by necessary implication provides that pending actions are excepted from its operation,
or where to apply it would impair vested rights, petitioners failed to show that application
of A.O. No. 17 to their case would cause injustice to them. Indeed, in this case, the Office
of the Ombudsman afforded petitioners every opportunity to defend themselves by
allowing them to submit counter-affidavits, position papers, memoranda and other
evidence in their defense. Since petitioners have been afforded the right to be heard and
to defend themselves, they cannot rightfully complain that they were denied due process
of law. Well to remember, due process, as a constitutional precept, does not always and
in all situations require a trial-type proceeding. It is satisfied when a person is notified of
the charge against him and given an opportunity to explain or defend himself. In
administrative proceedings, the filing of charges and giving reasonable opportunity for the
person so charged to answer the accusations against him constitute the minimum
requirements of due process. More often, this opportunity is conferred through written
pleadings that the parties submit to present their charges and defenses. 34 But as long
as a party is given the opportunity to defend his or her interests in due course, said party
is not denied due process. 35
Neither is there merit to Cabalit's assertion that she should have been investigated under
the old rules of procedure of the Office of the Ombudsman, and not under the new
rules. In Marohomsalic v. Cole, 36 we clarified that the Office of the Ombudsman has
only one set of rules of procedure and that is A.O. No. 07, series of 1990, as amended.
There have been various amendments made thereto but it has remained, to date, the
only set of rules of procedure governing cases filed in the Office of the Ombudsman.
Hence, the phrase as amended is correctly appended to A.O. No. 7 every time it is
invoked. A.O. No. 17 is just one example of these amendments.
But did the CA correctly rule that petitioners Cabalit and Apit are liable for dishonesty
while petitioner Olaivar is liable for gross neglect of duty?
Cabalit argues that the CA erred in affirming the decision of the Ombudsman finding her
liable for dishonesty. She asserts that it was not established by substantial evidence that
the forged signatures belong to her. Meanwhile, Apit contends that the CA erred in not
considering evidence which proves that the signatures appearing above his name are
falsified. However, we note that both Cabalit and Apit raise essentially factual issues
which are not proper in petitions filed under Rule 45. Settled jurisprudence dictates that
subject to a few exceptions, only questions of law may be brought before the Court via a
petition for review on certiorari. In Diokno v. Cacdac, 37 the Court held:
286
. . . [T]he scope of this Court's judicial review of decisions of the Court of Appeals is
generally confined only to errors of law, and questions of fact are not entertained. We
elucidated on our fidelity to this rule, and we said:
Thus, only questions of law may be brought by the parties and passed upon by this Court
in the exercise of its power to review. Also, judicial review by this Court does not extend
to a reevaluation of the sufficiency of the evidence upon which the proper . . . tribunal has
based its determination. (Emphasis supplied.)
It is aphoristic that a re-examination of factual findings cannot be done through a petition
for review on certiorari under Rule 45 of the Rules of Court because this Court is not a
trier of facts; it reviews only questions of law. The Supreme Court is not duty-bound to
analyze and weigh again the evidence considered in the proceedings below. 38
Here, the CA affirmed the findings of fact of the Office of the Ombudsman-Visayas which
are supported by substantial evidence such as affidavits of witnesses and copies of the
tampered official receipts. 39 The CA found that a perusal of the questioned receipts
would easily reveal the discrepancies between the date, name and vehicle in the Owner's
or Plate Release copies and the File, Auditor, and Regional Office copies. It upheld the
factual findings of the Ombudsman that petitioners Cabalit and Apit tampered with the
duplicates of the official receipts to make it appear that they collected a lesser amount.
Their participation was found to have been indispensable as the irregularities could not
have been committed without their participation. They also concealed the
misappropriation of public funds by falsifying the receipts.
Now, superior courts are not triers of facts. When the findings of fact of the Ombudsman
are supported by substantial evidence, it should be considered as conclusive. 40 This
Court recognizes the expertise and independence of the Ombudsman and will avoid
interfering with its findings absent a finding of grave abuse of discretion. 41 Hence, being
supported by substantial evidence, we find no reason to disturb the factual findings of the
Ombudsman which are affirmed by the CA.
As for Olaivar, he insists that the CA erred in holding him administratively liable for gross
negligence when he relied to a reasonable extent and in good faith on the actions of his
subordinates in the preparation of the applications for registration. He questions the
appellate court's finding that he failed to exercise the required diligence in the
performance of his duties.
While as stated above, the general rule is that factual findings of the CA are not
reviewable by this Court, we find that Olaivar's case falls in one of the recognized
exceptions laid down in jurisprudence since the CA's findings regarding his liability are
premised on the supposed absence of evidence but contradicted by the evidence on
record. 42
The Office of the Ombudsman-Visayas found Olaivar administratively liable for
dishonesty while the CA ruled that he may not be held liable for dishonesty supposedly
for lack of sufficient evidence. The CA ruled that there was no substantial evidence to
show that Olaivar participated in the scheme, but the tampering of the official receipts
could have been avoided had he exercised the required diligence in the performance of
his duties as officer-in-charge of the Jagna District Office. Thus, the CA found him liable
only for gross neglect of duty. This, however, is clear error on the part of the CA.
For one, there is clear evidence that Olaivar was involved in the anomalies. Witness
Joselito Taladua categorically declared in his affidavit 43 that he personally paid Olaivar
the sum of P2,675 for the renewal of registration of a jeep for which he was issued Official
Receipt No. 47699853. Much to his dismay, Taladua later found out that his payment was
not reflected correctly in the Report of Collections, and that the vehicle was deemed
unregistered for the year 2000. HSCATc
More, Cabalit pointed to Olaivar as the person behind the anomaly in the LTO-Jagna
District Office. She narrated in her position paper that on several times, Olaivar directly
accommodated some registrants and assumed the functions of computer evaluator, typist
and cashier, and computed the fees, received payment and prepared the official receipts
for those transactions. She also revealed that Olaivar would ask her for unused official
287
receipts and would later return the duplicate copies to her with the cash collections. Later,
he would verify the Report of Collections as correct. 44
Likewise, Motor Vehicle Inspector Engr. Lowell A. Dano confirmed that in several
instances, he witnessed Olaivar type the data himself in the official receipts even if they
have a typist in the office to do the job. Engr. Dano added that after typing, Olaivar
personally brought the accomplished official receipts for him (Engr. Dano) to sign. 45
Moreover, Jacinto Jalop, the records officer of the LTO in Jagna, Bohol, illustrated how
the official receipts were tampered. He disclosed that the correct charges were typed in
the Owner's copy and the Plate Release copy of the official receipts, but a much lower
charge and an incorrect address were indicated in the other copies. He asserted that
Olaivar was responsible for tampering the official receipts. 46
Neglect of duty implies only the failure to give proper attention to a task expected of an
employee arising from either carelessness or indifference. 47 However, the facts of this
case show more than a failure to mind one's task. Rather, they manifest that Olaivar
committed acts of dishonesty, which is defined as the concealment or distortion of truth
in a matter of fact relevant to one's office or connected with the performance of his duty.
It implies a disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of
integrity; lack of honesty, probity, or integrity in principle. 48 Hence, the CA should have
found Olaivar liable for dishonesty.
But be that as it may, still, the CA correctly imposed the proper penalty upon Olaivar.
Under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil
Service, dishonesty, like gross neglect of duty, is classified as a grave offense punishable
by dismissal even if committed for the first time. 49 Under Section 58, 50 such penalty
likewise carries with it the accessory penalties of cancellation of civil service eligibility,
forfeiture of retirement benefits and disqualification from re-employment in the
government service.
One final note. Cabalit contends that pursuant to the obiter in Tapiador v. Office of the
Ombudsman, 51 the Office of the Ombudsman can only recommend administrative
sanctions and not directly impose them. However, in Office of the Ombudsman v. Masing,
52 this Court has already settled the issue when we ruled that the power of the
Ombudsman to determine and impose administrative liability is not merely
recommendatory but actually mandatory. We held,
We reiterated this ruling in Office of the Ombudsman v. Laja, where we emphasized that
the Ombudsman's order to remove, suspend, demote, fine, censure, or prosecute an
officer or employee is not merely advisory or recommendatory but is actually mandatory.
Implementation of the order imposing the penalty is, however, to be coursed through the
proper officer. Recently, in Office of the Ombudsman v. Court of Appeals, we also held
'While Section 15(3) of RA 6770 states that the Ombudsman has the power to
recommend . . . removal, suspension, demotion . . . of government officials and
employees, the same Section 15(3) also states that the Ombudsman in the alternative
may enforce its disciplinary authority as provided in Section 21 of RA 6770.' (emphasis
supplied.) 53
Subsequently, in Ledesma v. Court of Appeals, 54 and Office of the Ombudsman v. Court
of Appeals, 55 the Court upheld the Ombudsman's power to impose the penalty of
removal, suspension, demotion, fine, censure, or prosecution of a public officer or
employee found to be at fault in the exercise of its administrative disciplinary authority. In
Office of the Ombudsman v. Court of Appeals, we held that the exercise of such power is
well founded in the Constitution and R.A. No. 6770, otherwise known as The Ombudsman
Act of 1989, thus:
The Court further explained in Ledesma that the mandatory character of the
Ombudsman's order imposing a sanction should not be interpreted as usurpation of the
authority of the head of office or any officer concerned. This is because the power of the
Ombudsman to investigate and prosecute any illegal act or omission of any public official
is not an exclusive authority but a shared or concurrent authority in respect of the offense
288
charged. By stating therefore that the Ombudsman recommends the action to be taken
against an erring officer or employee, the provisions in the Constitution and in Republic
Act No. 6770 intended that the implementation of the order be coursed through the proper
officer.
Consequently in Ledesma, the Court affirmed the appellate court's decision which had,
in turn, affirmed an order of the Office of the Ombudsman imposing the penalty of
suspension on the erring public official. 56
The duty and privilege of the Ombudsman to act as protector of the people against the
illegal and unjust acts of those who are in the public service emanate from no less than
the 1987 Constitution. Section 12 of Article XI thereof states:
Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against public officials or employees
of the Government, or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and shall, in appropriate cases, notify the
complainants of the action taken and the result thereof.
In addition, Section 15 (3) of R.A. No. 6770, provides:
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:
xxx xxx xxx
(3) Direct the officer concerned to take appropriate action against a public officer or
employee at fault or who neglects to perform an act or discharge a duty required by law,
and recommend his removal, suspension, demotion, fine, censure, or prosecution, and
ensure compliance therewith; or enforce its disciplinary authority as provided in Section
21 of this Act: Provided, That the refusal by any officer without just cause to comply with
an order of the Ombudsman to remove, suspend, demote, fine, censure or prosecute an
officer or employee who is at fault or who neglects to perform an act or discharge a duty
required by law shall be a ground for disciplinary action against said officer. DHcEAa
xxx xxx xxx
Section 19 of R.A. No. 6770 grants to the Ombudsman the authority to act on all
administrative complaints:
SEC. 19. Administrative Complaints. The Ombudsman shall act on all complaints
relating, but not limited to acts or omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive or discriminatory;
(3) Are inconsistent with the general course of an agency's functions, though in
accordance with law;
(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an improper purpose; or
(6) Are otherwise irregular, immoral or devoid of justification.
In the exercise of his duties, the Ombudsman is given full administrative disciplinary
authority. His power is not limited merely to receiving, processing complaints, or
recommending penalties. He is to conduct investigations, hold hearings, summon
witnesses and require production of evidence and place respondents under preventive
289
suspension. This includes the power to impose the penalty of removal, suspension,
demotion, fine, or censure of a public officer or employee. 57
The provisions in R.A. No. 6770 taken together reveal the manifest intent of the
lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary
authority. These provisions cover the entire gamut of administrative adjudication which
entails the authority to, inter alia, receive complaints, conduct investigations, hold
hearings in accordance with its rules of procedure, summon witnesses and require the
production of documents, place under preventive suspension public officers and
employees pending an investigation, determine the appropriate penalty imposable on
erring public officers or employees as warranted by the evidence, and, necessarily,
impose the said penalty. 58 Thus, it is settled that the Office of the Ombudsman can
directly impose administrative sanctions.
We find it worthy to state at this point that public service requires integrity and discipline.
For this reason, public servants must exhibit at all times the highest sense of honesty and
dedication to duty. By the very nature of their duties and responsibilities, public officers
and employees must faithfully adhere to hold sacred and render inviolate the
constitutional principle that a public office is a public trust; and must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty and
efficiency. 59
WHEREFORE, the petitions for review on certiorari are DENIED. The assailed Decision
dated January 18, 2006 and Resolution dated September 21, 2007 of the Court of
Appeals in CA-G.R. SP. Nos. 86256, 86394 and 00047 are AFFIRMED with
MODIFICATION. Petitioner Leonardo G. Olaivar is held administratively liable for
DISHONESTY and meted the penalty of dismissal from the service as well as the
accessory penalties inherent to said penalty.
With costs against petitioners.
SO ORDERED.
Corona, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Peralta, Bersamin, Del Castillo,
Abad, Villarama, Jr., Perez, Mendoza, Sereno, Reyes, and Perlas-Bernabe, JJ., concur.
Brion, J., on official leave.
||| (Cabalit v. Commission on Audit - Region VII, G.R. Nos. 180236, 180341 & 180342,
[January 17, 2012], 679 PHIL 138-165)
11. YLAYA VS. GACOTT 689 SCRA 452 (2013)
SECOND DIVISION
[A.C. No. 6475. January 30, 2013.]
FE A. YLAYA, complainant, vs. ATTY. GLENN CARLOS GACOTT, respondent.
DECISION
BRION, J p:
For the Court's consideration is the disbarment complaint 1 filed by Fe A. Ylaya
(complainant) against Atty. Glenn Carlos Gacott (respondent) who allegedly deceived the
complainant and her late husband, Laurentino L. Ylaya, into signing a "preparatory" Deed
of Sale that the respondent converted into a Deed of Absolute Sale in favor of his
relatives.
After the submission of the respondent's comment to the complaint, the Court referred
the complaint to the Commission on Bar Discipline of the Integrated Bar of the Philippines
(IBP) for investigation, evaluation and recommendation.
The complainant alleged that she and her late husband are the registered owners of two
(2) parcels of land covered by Transfer Certificate of Title (TCT) Nos. 162632 and 162633
290
located at Barangay Sta. Lourdes, Puerto Princesa City. Prior to the acquisition of these
properties, TCT No. 162632 (property) was already the subject of expropriation
proceedings filed by the City Government of Puerto Princesa (City Government) on May
23, 1996 against its former registered owner, Cirilo Arellano. The expropriation case was
filed with the Regional Trial Court (RTC) of Palawan and Puerto Princesa, Branch 95, and
was docketed as Civil Case No. 2902. The RTC already fixed the price and issued an
order for the City Government to deposit P6,000,000.00 as just compensation for the
property. 2
The respondent briefly represented the complainant and her late husband in the
expropriation case as intervenors for being the new registered owners of the property.
The complainant alleged that the respondent convinced them to sign a "preparatory deed
of sale" for the sale of the property, but he left blank the space for the name of the buyer
and for the amount of consideration. The respondent further alleged that the deed would
be used in the sale to the City Government when the RTC issues the order to transfer the
titles. 3 The respondent then fraudulently without their knowledge and consent, and
contrary to their understanding converted the "preparatory deed of sale" into a Deed
of Absolute Sale dated June 4, 2001, 4 selling the subject property to Reynold So and
Sylvia Carlos So for P200,000.00. 5
The complainant denied that she and Laurentino were paid the P200,000.00 purchase
price or that they would sell the property "for such a measly sum" when they stood to get
at least P6,000,000.00 as just compensation. 6 aDcHIC
The complainant also claimed that the respondent notarized the Deed of Absolute Sale
dated June 4, 2001 even though Reynold and Sylvia (his mother's sister) are his uncle
and his aunt, respectively. 7
The respondent denied all the allegations in the complaint. 8
The respondent argued that the complainant's greed to get the just compensation 9
caused her to file this "baseless, unfounded [and] malicious" disbarment case. 10 He
claimed that the sale was their voluntary transaction and that he "simply ratified the
document." 11 He also claimed that Reynold and Laurentino had originally jointly
purchased the properties from Cirilo Arellano on July 10, 2000; that they were co-owners
for some time; and that Laurentino subsequently sold his share to Reynold under a Deed
of Absolute Sale dated June 4, 2001. 12
The respondent specifically denied asking the complainant and her late husband to
execute any "preparatory deed of sale" in favor of the City Government. 13 He also denied
that the Deed of Absolute Sale contained blanks when they signed it. 14 That he filed for
the spouses Ylaya and Reynold an opposition to the just compensation the RTC fixed
proved that there was no agreement to use the document for the expropriation case. 15
He also argued that it was clear from the document that the intended buyer was a natural
person, not a juridical person, because there were spaces for the buyer's legal age,
marital status, and citizenship, 16 and he was even constrained to file a subsequent
Motion to Intervene on behalf of Reynold because the complainant "maliciously retained"
the TCTs to the subject properties after borrowing them from his office. 17 Lastly, he
denied violating the Rules on Notarial Practice. 18
On September 4, 2006, the respondent filed a Motion to Resolve or Decide the Case
dated August 24, 2006 praying for the early resolution of the complaint. 19
On December 5, 2006, the complainant filed an Ex Parte Motion to Withdraw the Verified
Complaint and to Dismiss the Case dated November 14, 2006. 20 IcCEDA
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On February 28, 2008, the complainant executed an Affidavit 21 affirming and confirming
the existence, genuineness and due execution of the Deed of Absolute Sale notarized on
March 6, 2000; 22 the Memorandum of Agreement (MOA) dated April 19, 2000; 23 and
the Deed of Absolute Sale notarized in 2001. 24 The respondent submitted this Affidavit
to the IBP as an attachment to his Motion for Reconsideration of April 21, 2008. 25
The IBP's Findings
In her Report and Recommendation dated November 19, 2007, IBP Commissioner Anna
Caridad Sazon-Dupaya found the respondent administratively liable for violating Canon
1, Rule 1.01 (A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct) and Canon 16 ("A lawyer shall hold in trust all moneys and properties of his
client that may come into his possession) of the Code of Professional Responsibility, and
Section 3 (c), Rule IV of A.M. No. 02-8-13-SC (2004 Rules on Notarial Practice). 26 She
recommended his suspension from the practice of law for a period of six (6) months. 27
In its Resolution No. XVIII-2007-302 28 dated December 14, 2007, the IBP Board of
Governors adopted the IBP Commissioner's finding, but increased the penalty imposed
to two (2) years suspension and a warning:
RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and
APPROVED, with modification, the Report and Recommendation of the Investigating
Commissioner [in] the above-entitled case, herein made part of this Resolution as Annex
"A"; and, finding the recommendation fully supported by the evidence on record and the
applicable laws and rules, and considering respondent's violations of Canon 1, [Rule] 1.01
and Canon 16 of the Code of Professional Responsibility and Rule IV, Sec. 39(c) of A.M.
No. 02-8-13-SC (2004 Rules on Notarial Practice), Atty. Glenn Carlos Gacott is hereby
SUSPENDED from practice of law for two (2) years with a Warning that commission of a
similar offense will be dealt with more severely. [emphases supplied] cCTAIE
On May 8, 2008, the respondent filed a Motion for Reconsideration dated April 21, 2008,
attaching, among others, a copy of the complainant's Affidavit dated February 27, 2008,
admitting the existence, genuineness and due execution of the Deed of Absolute Sale
between Cirilo and Laurentino; the MOA between Laurentino and Reynold; the Deed of
Absolute Sale between Laurentino and Reynold; and the Compromise Agreement
between Reynold and the complainant dated November 14, 2006 for the expropriation
case. 29
On September 4, 2008, the respondent filed a Manifestation with the Supreme Court,
requesting that the IBP be directed to resolve his Motion for Reconsideration. 30
By Resolution No. XIX-2010-545 dated October 8, 2010, 31 the IBP Board of Governors
denied the respondent's Motion for Reconsideration for failing to raise any new substantial
matter or any cogent reason to warrant a reversal or even a modification of its Resolution
No. XVIII-2007-302. 32
On March 14, 2012, the respondent filed a Petition for Review (on appeal) assailing the
IBP's findings, as follows: 33
a) In conveniently concluding that the Deed of Absolute Sale was pre-signed and
fraudulently notarized without requiring Fe Ylaya to adduce evidence in a formal hearing
thus, violated the respondent's right to due process as he was not able to cross-examine
her. This is not to mention that the complainant failed to offer corroborative proof to prove
her bare allegations;
b) In sweepingly and arbitrarily disregarded/skirted (sic) the public documents (MOA and
2 other DOAS) duly executed by the parties therein and notarized by the respondent;
292
c) In totally ignoring the complainant's Affidavit admitting the genuineness and due
execution of the Deed of Absolute Sale in issue;
d) In arbitrarily concluding the absence of co-ownership by Reynold So and Fe Ylaya of
the subject lots despite the existence of a notarized MOA clearly showing the coownership of Ylaya and So; and
e) In finding the respondent/appellant's act of notarizing the DOAS as contrary to the
notarial rules[.]
The Issues
From the assigned errors, the complainant poses the following issues:
(1) whether the IBP violated the respondent's right to due process; and
(2) whether the evidence presented supports a finding that the respondent is
administratively liable for violating Canon 1, Rule 1.01 and Canon 16 of the Code of
Professional Responsibility, and Section 3 (c), Rule IV of A.M. No. 02-8-13-SC.
The Court's Ruling
We set aside the findings and recommendations of the IBP Commissioner and those of
the IBP Board of Governors finding the respondent liable for violating Canon 1, Rules
1.01 and Section 3 (c), Rule IV of A.M. No. 02-8-13-SC. 34
We however hold the respondent liable for violating Canon 16 of the Code of Professional
Responsibility for being remiss in his obligation to hold in trust his client's properties. We
likewise find him liable for violation of (1) Canon 15, Rule 15.03 for representing conflicting
interests without the written consent of the represented parties, thus, violating the rule on
conflict of interests; and (2) Canon 18, Rule 18.03 for neglecting a legal matter entrusted
to him. ScaATD
a. Due process violation
The most basic tenet of due process is the right to be heard. Denial of due process means
the total lack of opportunity to be heard or to have one's day in court. As a rule, no denial
of due process takes place where a party has been given an opportunity to be heard and
to present his case; 35 what is prohibited is the absolute lack of opportunity to be heard.
The respondent claims that the IBP violated his right to due process because he was not
given the "amplest opportunity to defend himself, to cross examine the witness
[complainant], to object to the admissibility of documents or present controverting
evidence" 36 when the IBP rendered its conclusion without requiring the complainant to
adduce evidence in a formal hearing and despite the absence of corroborative proof. He
insists that these defects rendered the complainant's allegations as hearsay, and the
IBP's report, recommendation or resolution null and void.
Although the respondent failed to have a face-to-face confrontation with the complainant
when she failed to appear at the required mandatory conference on October 6, 2005, 37
the records reveal that the respondent fully participated during the entire proceedings and
submitted numerous pleadings, including evidence, before the IBP. He was even allowed
to file a motion for reconsideration supported by his submitted evidence, which motion
the IBP considered and ruled upon in its Resolution No. XIX-2010-545 dated October 8,
2010. 38
In Alliance of Democratic Free Labor Organization v. Laguesma, 39 we held that due
process, as applied to administrative proceedings, is the opportunity to explain one's side.
In Samalio v. Court of Appeals, 40 due process in an administrative context does not
require trial-type proceedings similar to those in courts of justice. Where the opportunity
293
to be heard, either through oral arguments or through pleadings, is accorded, no denial

of procedural due process takes place. The requirements of due process are satisfied
where the parties are afforded a fair and reasonable opportunity to explain their side of
the controversy at hand. EcTDCI
Similarly, in A.Z. Arnaiz Realty, Inc. v. Office of the President, 41 we held that "[d]ue
process, as a constitutional precept, does not always, and in all situations, require a trialtype proceeding. Litigants may be heard through pleadings, written explanations, position
papers, memoranda or oral arguments. The standard of due process that must be met in
administrative tribunals allows a certain degree of latitude[, provided that] fairness is not
ignored. It is, therefore, not legally objectionable for being violative of due process, for an
administrative agency to resolve a case based solely on position papers, affidavits or
documentary evidence submitted by the parties." 42
In this case, the respondent's failure to cross-examine the complainant is not a sufficient
ground to support the claim that he had not been afforded due process. The respondent
was heard through his pleadings, his submission of alleged controverting evidence, and
his oral testimony during the October 6, 2005 mandatory conference. These pleadings,
evidence and testimony were received and considered by the IBP Commissioner when
she arrived at her findings and recommendation, and were the bases for the IBP Board's
Resolution.
Moreover, "any seeming defect in the observance [of due process] is cured by the filing
of a motion for reconsideration. [A] [d]enial of due process cannot be successfully invoked
by a party who has had the opportunity to be heard on his motion for reconsideration.
Undoubtedly [in this case], the requirement of the law was afforded to [the] respondent."
43
We also note that the respondent, on a Motion to Resolve or Decide the Case dated
August 24, 2006, submitted his case to the IBP for its resolution without any further
hearings. The motion, filed almost one year after the mandatory conference on October
6, 2005, significantly did not contain any statement regarding a denial of due process. In
effect, the respondent himself waived his cross-examination of the complainant when he
asked the IBP Board of Governors to resolve the case based on the pleadings and the
evidence on record. To quote his own submission:
1. On June 30, 2004[,] a complaint was filed in this case;
2. On October 19, 2004[,] the respondent filed his comment with all its attachments
denying all the allegations in the complaint;
3. On June 23, 2005[,] the respondent filed his position paper. On April 28, 2006[,] the
respondent also filed his supplemental position paper. By contrast, up to this date, the
complainant/petitioner has not filed her verified position paper thus, waived her right to
file the same; DSCIEa
4. There being no other genuine issues to be heard in this case as all the defenses and
counter-arguments are supported by documentary evidence, it is most respectfully prayed
that the instant case be resolved on its merits or be ordered dismissed for lack of merit
without further hearing;
5. Further, considering that there is an on-going case in Branch 52 of the Regional Trial
Court of Palawan in Civil Case No. 2902 for Expropriation involving the same property,
and such fact was deliberately omitted by the complainant in her Verified Complaint as
shown in the certification of non-forum shopping, the outright dismissal of this case is
warranted, hence, this motion; and
294
6. This is meant to expedite the termination of this case. 44 (underscore ours; italics
supplied)
Finally, we note Section 11, Rule 139-B of the Rules of Court which provides that:
No defect in a complaint, notice, answer, or in the proceeding or the Investigator's Report
shall be considered as substantial unless the Board of Governors, upon considering the
whole record, finds that such defect has resulted or may result in a miscarriage of justice,
in which event the Board shall take such remedial action as the circumstances may
warrant, including invalidation of the entire proceedings.
In this case, the IBP Commissioner's findings were twice reviewed by the IBP Board of
Governors the first review resulted in Resolution No. XVIII-2007-302 45 dated
December 14, 2007, affirming the IBP Commissioner's findings, but modifying the
penalty; the second review resulted in Resolution No. XIX-2010-545 dated October 8,
2010, 46 denying the respondent's motion for reconsideration. In both instances, the IBP
Board of Governors found no defect or miscarriage of justice warranting a remedial action
or the invalidation of the proceedings.
We emphasize that disciplinary proceedings against lawyers are sui generis in that they
are neither purely civil nor purely criminal; they involve investigations by the Court into
the conduct of one of its officers, 47 not the trial of an action or a suit. EIAHcC
Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely
criminal, they do not involve a trial of an action or a suit, but is rather an investigation by
the Court into the conduct of one of its officers. Not being intended to inflict punishment,
it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a
prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its
primary objective, and the real question for determination is whether or not the attorney
is still a fit person to be allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to account for his
actuations as an officer of the Court with the end in view of preserving the purity of the
legal profession and the proper and honest administration of justice by purging the
profession of members who by their misconduct have 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 thus be no occasion to speak of a complainant or a
prosecutor. [emphases deleted]
The complainant in disbarment cases is not a direct party to the case but a witness who
brought the matter to the attention of the Court. 48 Flowing from its sui generis character,
it is not mandatory to have a formal hearing in which the complainant must adduce
evidence.
From all these, we find it clear that the complainant is not indispensable to the disciplinary
proceedings and her failure to appear for cross-examination or to provide corroborative
evidence of her allegations is of no merit. What is important is whether, upon due
investigation, the IBP Board of Governors finds sufficient evidence of the respondent's
misconduct to warrant the exercise of its disciplinary powers.
b. Merits of the Complaint
"In administrative cases against lawyers, the quantum of proof required is preponderance
of evidence which the complainant has the burden to discharge." 49 Preponderance of
evidence means that the evidence adduced by one side is, as a whole, superior to or has
a greater weight than that of the other. It means evidence which is more convincing to the
court as worthy of belief compared to the presented contrary evidence.
295
Under Section 1, Rule 133 of the Rules of Court,in determining whether preponderance
of evidence exists, the court may consider the following: (a) all the facts and
circumstances of the case; (b) the witnesses' manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they are testifying, the nature of the
facts to which they testify, and the probability or improbability of their testimony; (c) the
witnesses' interest or want of interest, and also their personal credibility so far as the
same may ultimately appear in the trial; and (d) the number of witnesses, although it does
not mean that preponderance is necessarily with the greater number. 50 By law, a lawyer
enjoys the legal presumption that he is innocent of the charges against him until the
contrary is proven, and that as an officer of the court, he is presumed to have performed
his duties in accordance with his oath. 51 CSDAIa
The IBP Commissioner set out her findings as follows:
The undersigned, after a careful evaluation of the evidence presented by both parties,
finds that the charges of the complainant against the respondent are worthy of belief
based on the following:
First, the allegation of the respondent that Reynold So was actually co-owner of spouses
Ylanas (sic) in the properties subject of the Deed of Sale between Felix Arellano and
Spouses Ylanas (sic) is hard to believe despite the presentation of the Memorandum of
Agreement.
It is elementary in Rules of Evidence that when the contents of a written document are
put in issue, the best evidence would be the document itself. In the Deed of Sale between
Felix Arellano and Spouses Ylanas (sic), the buyer of the subject properties is only
Laurentino L. Ylaya married to Fe A. Ylaya. The document does not state that Reynold
So was likewise a buyer together with Laurentino Ylaya, or that the former paid half of the
purchase price.
Also, it is hard for this Commission to believe that Reynold So, assisted by a lawyer at
that and who allegedly paid half of the purchase price, would not insist for the inclusion
of his name in the Deed of Sale as well as the Transfer Certificate of Title subsequently
issued.
The Memorandum of Agreement between [the] spouses Ylaya and Reynold So produced
by the respondent [cannot] overturn the belief of this Commission considering that the
Memorandum of Agreement was executed more than a month AFTER the Deed of Sale
between Felix Arellano and the Ylayas was notarized. This is not to mention the fact that
the complainant denied ever having executed the Memorandum of Agreement. A close
examination of the signatories in the said Memorandum of Agreement would reveal that
indeed, the alleged signatures of the complainant and her husband are not the same with
their signatures in other documents.
Assuming, for the sake of argument, that the Memorandum of Agreement is valid, thereby
making Laurentino Ylaya and co-owner Reynold So co-owners of the subject properties
(Please see Annex "B" of respondent's Comment), this Commission finds it hard to
believe Laurentino Ylaya would sell it to Reynold So for P200,000 . . . when his minimum
expenses for the purchase thereof is already P225,000.00 and he was expecting to
receive P7,000,000.00, more or less. That would mean that if Reynold So and the
complainant were co-owners, the P7,000,000.00 would then be equally divided among
them at P3,500,000.00 each, far above the P200,000.00 selling price reflected in the presigned Deed of Sale.
As to the second issue, this Commission believes that the respondent committed serious
error in notarizing the Deed of Sale and the Memorandum of Agreement between his
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uncle Reynold So and Laurentino Ylaya based on Rule IV, Section 3 (c) of A.M. No. 028-13-SC which provides as follows:
"Sec. 3. Disqualifications. a notary public is disqualified from performing a notarial act
if he:
(a) . . . .
(b) . . . .
(c) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or
consanguinity of the principal within the fourth civil degree."
The defense therefore of the respondent that he did not violate the aforementioned Rule
because his uncle Reynold So, the buyer is not the principal in the Subject Deed of Sale
but the seller Laurentino Ylaya (please see page 3 of the respondent's Supplemental
Position Paper) is misplaced. Clearly[,] both the buyer and the seller in the instant case
are considered principals in the contract entered into.
Furthermore, if we are to consider the argument of the respondent that his uncle was not
a principal so as to apply the afore-quoted provision of the Rules, the respondent still
violated the Rules when he notarized the subject Memorandum of Agreement between
Laurentino Ylaya and his uncle Reynold So. Clearly, both complainant and Reynold So
were principal parties in the said Memorandum of Agreement. 52
The respondent argues that the IBP Commissioner's findings are contrary to the
presented evidence, specifically to the MOA executed by Laurentino and Reynold
acknowledging the existence of a co-ownership; 53 to the complainant's Ex Parte Motion
to Withdraw the Verified Complaint and to Dismiss the Case dated November 14, 2006
where she stated that the parties have entered into a compromise agreement in Civil
Case No. 2902, and that the disbarment complaint arose from a misunderstanding,
miscommunication and improper appreciation of facts; 54 to her Affidavit dated February
27, 2008 55 affirming and confirming the existence, genuineness and due execution of
the Deed of Absolute Sale notarized on March 6, 2000; 56 and to the Deed of Absolute
Sale notarized in 2001. 57 IHSTDE
In all, the respondent claims that these cited pieces of evidence prove that this
administrative complaint against him is fabricated, false and untrue. He also points to Atty.
Robert Peneyra, the complainant's counsel in this administrative case, as the hand behind
the complaint. 58 According to the respondent, Atty. Peneyra harbors ill-will against him
and his family after his father filed several administrative cases against Atty. Peneyra,
one of which resulted in the imposition of a warning and a reprimand on Atty. Peneyra.
59
Reynold, in his Affidavit dated October 11, 2004, confirms that there was a co-ownership
between him and Laurentino; that Laurentino decided to sell his half of the property to
Reynold because he (Laurentino) had been sickly and in dire need of money to pay for
his medical bills; that Laurentino agreed to the price of P200,000.00 as this was almost
the same value of his investment when he and Reynold jointly acquired the property; and
that the sale to Reynold was with the agreement and consent of the complainant who
voluntarily signed the Deed of Sale. 60
After examining the whole record of the case, we agree with the respondent and find the
evidence insufficient to prove the charge that he violated Canon 1, Rule 1.01 of the Code
of Professional Responsibility and Section 3 (c), Rule IV of A.M. No. 02-8-13-SC.
Specifically, (1) the evidence against the respondent fails to show the alleged fraudulent
and deceitful acts he has taken to mislead the complainant and her husband into signing
297
a "preparatory deed of sale" and the conversion into a Deed of Absolute Sale dated June
4, 2001 in favor of Reynold; and (2) no prohibition exists against the notarization of a
document in which any of the parties interested is the notary's relative within the 4th civil
degree, by affinity or consanguinity, at that time the respondent notarized the documents.
In her Report and Recommendation, 61 the IBP Commissioner concluded that the
respondent is liable for deceit and fraud because he failed to prove the existence of a coownership between Laurentino and Reynold; in her opinion, the signatures of the
complainant and of her husband on the MOA "are not the same with their signatures in
other documents." 62 THIASE
We do not agree with this finding. While the facts of this case may raise some questions
regarding the respondent's legal practice, we nevertheless found nothing constituting
clear evidence of the respondent's specific acts of fraud and deceit. His failure to prove
the existence of a co-ownership does not lead us to the conclusion that the MOA and the
Deed of Absolute Sale dated June 4, 2001 are spurious and that the respondent was
responsible for creating these spurious documents. We are further persuaded, after
noting that in disregarding the MOA, the IBP Commissioner failed to specify what
differences she observed in the spouses Ylaya's signatures in the MOA and what
documents were used in comparison.
Apart from her allegations, the complainant's pieces of evidence consist of TCT Nos.
162632 and 162633; 63 her Motion for Leave to Intervene in Civil Case No. 2902 dated
May 17, 2000; 64 the RTC order in Civil Case No. 2902 dated November 6, 2000 fixing
the price of just compensation; 65 the Deed of Absolute Sale dated June 4, 2001; 66 the
spouses Ylaya's Verified Manifestation dated September 2, 2002, filed with the RTC in
Civil Case No. 2902, assailing the Motion to Deposit Just Compensation filed by the
respondent on behalf of Reynold and manifesting the sale between Laurentino and
Reynold; 67 the Provincial Prosecutor's Subpoena to the complainant in connection with
the respondent's complaint for libel; 68 the respondent's complaint for libel against the
complainant dated August 27, 2003; 69 the complainant's Counter Affidavit dated March
26, 2004 against the charge of libel; 70 and the respondent's letter to the Provincial
Attorney of Palawan dated April 5, 2004, requesting for "official information regarding the
actual attendance of Atty. ROBERT Y. PENEYRA" at an MCLE seminar. 71
We do not see these documentary pieces of evidence as proof of specific acts constituting
deceit or fraud on the respondent's part. The documents by themselves are neutral and,
at the most, show the breakdown of the attorney-client relationship between the
respondent and the complainant. It is one thing to allege deceit and misconduct, and it is
another to demonstrate by evidence the specific acts constituting these allegations. 72
We reiterate that in disbarment proceedings, the burden of proof is on the complainant;
the Court exercises its disciplinary power only if the complainant establishes her case by
clear, convincing, and satisfactory evidence. 73 Preponderance of evidence means that
the evidence adduced by one side is, as a whole, superior to or has a greater weight than
that of the other party. When the pieces of evidence of the parties are evenly balanced or
when doubt exists on the preponderance of evidence, the equipoise rule dictates that the
decision be against the party carrying the burden of proof. 74
In this case, we find that the complainant's evidence and the records of the case do not
show the respondent's deliberate fraudulent and deceitful acts. In the absence of such
proof, the complaint for fraud and deceit under Canon 1, Rule 1.01 of the Code of
Professional Responsibility must perforce be dismissed.
We note that the respondent has not squarely addressed the issue of his relationship with
Reynold, whom the complainant alleges to be the respondent's uncle because Reynold
is married to the respondent's maternal aunt. 75 However, this is of no moment as the
298
respondent cannot be held liable for violating Section 3 (c), Rule IV of A.M. No. 02-8-13SC because the Deed of Absolute Sale dated June 4, 2001 76 and the MOA dated April
19, 2000 77 were notarized by the respondent prior to the effectivity of A.M. No. 02-8-13SC on July 6, 2004. The notarial law in force in the years 2000-2001 was Chapter 11 of
Act No. 2711 (the Revised Administrative Code of 1917) which did not contain the present
prohibition against notarizing documents where the parties are related to the notary public
within the 4th civil degree, by affinity or consanguinity. Thus, we must likewise dismiss
the charge for violation of A.M. No. 02-8-13-SC. STcEaI
c. Liability under Canons 15, 16 and 18
We find the respondent liable under Canon 15, Rule 15.03 for representing conflicting
interests without the written consent of all concerned, particularly the complainant; under
Canon 16 for being remiss in his obligation to hold in trust his client's properties; and
under Canon 18, Rule 18.03 for neglecting a legal matter entrusted to him.
Canon 15, Rule 15.03 states:
A lawyer shall not represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts. [emphasis ours]
The relationship between a lawyer and his client should ideally be imbued with the highest
level of trust and confidence. Necessity and public interest require that this be so. Part of
the lawyer's duty to his client is to avoid representing conflicting interests. He is duty
bound to decline professional employment, no matter how attractive the fee offered may
be, if its acceptance involves a violation of the proscription against conflict of interest, or
any of the rules of professional conduct. Thus, a lawyer may not accept a retainer from a
defendant after he has given professional advice to the plaintiff concerning his claim; nor
can he accept employment from another in a matter adversely affecting any interest of
his former client. It is his duty to decline employment in any of these and similar
circumstances in view of the rule prohibiting representation of conflicting interests. 78
The proscription against representation of conflicting interest applies "even if the lawyer
would not be called upon to contend for one client that which the lawyer has to oppose
for the other, or that there would be no occasion to use the confidential information
acquired from one to the disadvantage of the other as the two actions are wholly
unrelated." 79 The sole exception is provided in Canon 15, Rule 15.03 of the Code of
Professional Responsibility if there is a written consent from all the parties after full
disclosure.
Based on the records, we find substantial evidence to hold the respondent liable for
violating Canon 15, Rule 15.03 of the Code of Professional Responsibility. The facts of
this case show that the respondent retained clients who had close dealings with each
other. The respondent admits to acting as legal counsel for Cirilo Arellano, the spouses
Ylaya and Reynold at one point during the proceedings in Civil Case No. 2902. 80
Subsequently, he represented only Reynold in the same proceedings, 81 asserting
Reynold's ownership over the property against all other claims, including that of the
spouses Ylaya. 82
We find no record of any written consent from any of the parties involved and we cannot
give the respondent the benefit of the doubt in this regard. We find it clear from the facts
of this case that the respondent retained Reynold as his client and actively opposed the
interests of his former client, the complainant. He thus violated Canon 15, Rule 15.03 of
the Code of Professional Responsibility. ETHaDC
We affirm the IBP Commissioner's finding that the respondent violated Canon 16. The
respondent admits to losing certificates of land titles that were entrusted to his care by
Reynold. 83 According to the respondent, the complainant "maliciously retained" the
299
TCTs over the properties sold by Laurentino to Reynold after she borrowed them from his
office. 84 Reynold confirms that the TCTs were taken by the complainant from the
respondent's law office. 85
The respondent is reminded that his duty under Canon 16 is to "hold in trust all moneys
and properties of his client that may come into his possession." Allowing a party to take
the original TCTs of properties owned by another an act that could result in damage
should merit a finding of legal malpractice. While we note that it was his legal staff who
allowed the complainant to borrow the TCTs and it does not appear that the respondent
was aware or present when the complainant borrowed the TCTs, 86 we nevertheless hold
the respondent liable, as the TCTs were entrusted to his care and custody; he failed to
exercise due diligence in caring for his client's properties that were in his custody.
We likewise find the respondent liable for violating Canon 18, Rule 18.03 for neglecting a
legal matter entrusted to him. Despite the respondent's admission that he represented
the complainant and her late husband in Civil Case No. 2902 and that he purportedly filed
a Motion for Leave to Intervene in their behalf, the records show that he never filed such
a motion for the spouses Ylaya. The complainant herself states that she and her late
husband were forced to file the Motion for Leave to Intervene on their own behalf. The
records of the case, which include the Motion for Leave to Intervene filed by the spouses
Ylaya, support this conclusion. 87
Canon 18, Rule 18.03 requires that a lawyer "shall not neglect a legal matter entrusted to
him, and his negligence in connection [therewith] shall render him liable." What amounts
to carelessness or negligence in a lawyer's discharge of his duty to his client is incapable
of an exact formulation, but the Court has consistently held that the mere failure of a
lawyer to perform the obligations due his client is per se a violation. 88
In Canoy v. Ortiz, 89 we held that a lawyer's failure to file a position paper was per se a
violation of Rule 18.03 of the Code of Professional Responsibility. Similar to Canoy, the
respondent clearly failed in this case in his duty to his client when, without any
explanation, he failed to file the Motion for Leave to Intervene on behalf of the spouses
Ylaya. Under the circumstances, we find that there was want of diligence; without
sufficient justification, this is sufficient to hold the respondent liable for violating Canon
18, Rule 18.03 of the Code of Professional Responsibility.
d. The Complainant's Ex Parte Motion to Withdraw the Verified Complaint and to Dismiss
the Case and her Affidavit
We are aware of the complainant's Ex Parte Motion to Withdraw the Verified Complaint
and to Dismiss the Case dated November 14, 2006 90 and her Affidavit 91 affirming and
confirming the existence, genuineness and due execution of the Deed of Absolute Sale
notarized on March 6, 2000. 92 The complainant explains that the parties have entered
into a compromise agreement in Civil Case No. 2902, and that this disbarment complaint
was filed because of a "misunderstanding, miscommunication and improper appreciation
of facts"; 93 she erroneously accused the respondent of ill motives and bad intentions,
but after being enlightened, she is convinced that he has no personal or pecuniary
interests over the properties in Civil Case No. 2902; that such misunderstanding was due
to her unfamiliarity with the transactions of her late husband during his lifetime. 94 The
complainant now pleads for the respondent's forgiveness, stating that he has been her
and her late husband's lawyer for over a decade and affirms her trust and confidence in
him. 95 We take note that under their Compromise Agreement dated November 14, 2006
for the expropriation case, 96 the complainant and Reynold equally share the just
compensation, which have since increased to P10,000,000.00. CSaIAc
While the submitted Ex Parte Motion to Withdraw the Verified Complaint and to Dismiss
the Case and the Affidavit appear to exonerate the respondent, complete exoneration is
not the necessary legal effect as the submitted motion and affidavit are immaterial for
300
purposes of the present proceedings. Section 5, Rule 139-B of the Rules of Court states
that, "No investigation shall be interrupted or terminated by reason of the desistance,
settlement, compromise, restitution, withdrawal of charges, or failure of the complainant
to prosecute the same."
In Angalan v. Delante, 97 despite the Affidavit of Desistance, we disbarred the respondent
therein for taking advantage of his clients and for transferring the title of their property to
his name. In Bautista v. Bernabe, 98 we revoked the lawyer's notarial commission,
disqualified him from reappointment as a notary public for two years, and suspended him
from the practice of law for one year for notarizing a document without requiring the affiant
to personally appear before him. In this cited case, we said:
Complainant's desistance or withdrawal of the complaint does not exonerate respondent
or put an end to the administrative proceedings. A case of suspension or disbarment may
proceed regardless of interest or lack of interest of the complainant. What matters is
whether, on the basis of the facts borne out by the record, the charge of deceit and grossly
immoral conduct has been proven. This rule is premised on the nature of disciplinary
proceedings. A proceeding for suspension or disbarment is not a civil action where the
complainant is a plaintiff and the respondent lawyer is a defendant. Disciplinary
proceedings involve no private interest and afford no redress for private grievance. They
are undertaken and prosecuted solely for the public welfare. They are undertaken for the
purpose of preserving courts of justice from the official ministration of persons unfit to
practice in them. The attorney is called to answer to the court for his conduct as an officer
of the court. The complainant or the person who called the attention of the court to the
attorney's alleged misconduct is in no sense a party, and has generally no interest in the
outcome except as all good citizens may have in the proper administration of justice. 99
In sum, in administrative proceedings against lawyers, the complainant's desistance or
withdrawal does not terminate the proceedings. This is particularly true in the present
case where pecuniary consideration has been given to the complainant as a
consideration for her desistance. We note in this regard that she would receive
P5,000,000.00, or half of the just compensation under the Compromise Agreement, 100
and thus agreed to withdraw all charges against the respondent. 101 From this
perspective, we consider the complainant's desistance to be suspect; it is not grounded
on the fact that the respondent did not commit any actual misconduct; rather, because of
the consideration, the complainant is now amenable to the position of the respondent
and/or Reynold. TICDSc
e. Procedural aspect
We remind all parties that resolutions from the IBP Board of Governors are merely
recommendatory and do not attain finality without a final action from this Court. Section
12, Rule 139-B is clear on this point that:
Section 12. Review and decision by the Board of Governors.
xxx xxx xxx
(b) If the Board, by the vote of a majority of its total membership, determines that the
respondent should be suspended from the practice of law or disbarred, it shall issue a
resolution setting forth its findings and recommendations which, together with the whole
record of the case, shall forthwith be transmitted to the Supreme Court for final action.
The Supreme Court exercises exclusive jurisdiction to regulate the practice of law. 102 It
exercises such disciplinary functions through the IBP, but it does not relinquish its duty to
form its own judgment. Disbarment proceedings are exercised under the sole jurisdiction
of the Supreme Court, and the IBP's recommendations imposing the penalty of
301
suspension from the practice of law or disbarment are always subject to this Court's
review and approval.
The Penalty
In Solidon v. Macalalad, 103 we imposed the penalty of suspension of six (6) months from
the practice of law on the respondent therein for his violation of Canon 18, Rule 18.03
and Canon 16, Rule 16.01 of the Code of Professional Responsibility. In Josefina M.
Anion v. Atty. Clemencio Sabitsana, Jr., 104 we suspended the respondent therein from
the practice of law for one (1) year, for violating Canon 15, Rule 15.03 of the Code of
Professional Responsibility. Under the circumstances, we find a one (1) year suspension
to be a sufficient and appropriate sanction against the respondent.
WHEREFORE, premises considered, we set aside Resolution No. XVIII-2007-302 dated
December 14, 2007 and Resolution No. XIX-2010-545 dated October 8, 2010 of the IBP
Board of Governors, and find respondent Atty. Glenn Carlos Gacott GUILTY of violating
Rule 15.03 of Canon 15, Canon 16, and Rule 18.03 of Canon 18 of the Code of
Professional Responsibility. As a penalty, he is SUSPENDED from the practice of law for
one (1) year, with a WARNING that a repetition of the same or similar act will be dealt
with more severely.
SO ORDERED.
Carpio, Del Castillo, Perez and Perlas-Bernabe, JJ., concur.
||| (Ylaya v. Gacott, A.C. No. 6475, [January 30, 2013], 702 PHIL 390-421)
D. DUE PROCESS AND POLICE POWER
1. WHITE LIGHT CORP. VS. CITY OF MANILA 576 SCRA 1416 (2009)
EN BANC
[G.R. No. 122846. January 20, 2009.]
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST
& DEVELOPMENT CORPORATION, petitioners, vs. CITY OF MANILA, represented by
MAYOR ALFREDO S. LIM, respondent.
DECISION
TINGA, J p:
With another city ordinance of Manila also principally involving the tourist district as
subject, the Court is confronted anew with the incessant clash between government
power and individual liberty in tandem with the archetypal tension between law and
morality. CcaASE
In City of Manila v. Laguio, Jr., 1 the Court affirmed the nullification of a city ordinance
barring the operation of motels and inns, among other establishments, within the ErmitaMalate area. The petition at bar assails a similarly-motivated city ordinance that prohibits
those same establishments from offering short-time admission, as well as pro-rated or
"wash up" rates for such abbreviated stays. Our earlier decision tested the city ordinance
against our sacred constitutional rights to liberty, due process and equal protection of law.
The same parameters apply to the present petition.
This Petition 2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the
reversal of the Decision 3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges
the validity of Manila City Ordinance No. 7774 entitled, "An Ordinance Prohibiting ShortTime Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels,
302
Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City
of Manila" (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the
Ordinance. 4 The Ordinance is reproduced in full, hereunder:
SEC. 1. Declaration of Policy. It is hereby the declared policy of the City Government
to protect the best interest, health and welfare, and the morality of its constituents in
general and the youth in particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time
admission in hotels, motels, lodging houses, pension houses and similar establishments
in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate
or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging
houses, pension houses and similar establishments in the City of Manila. aDECHI
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and
charging of room rate for less than twelve (12) hours at any given time or the renting out
of rooms more than twice a day or any other term that may be concocted by owners or
managers of said establishments but would mean the same or would bear the same
meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of
this ordinance shall upon conviction thereof be punished by a fine of Five Thousand
(P5,000.00) Pesos or imprisonment for a period of not exceeding one (1) year or both
such fine and imprisonment at the discretion of the court; Provided, That in case of [a]
juridical person, the president, the manager, or the persons in charge of the operation
thereof shall be liable: Provided, further, That in case of subsequent conviction for the
same offense, the business license of the guilty party shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with
or contrary to this measure or any portion hereof are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.
Enacted by the city Council of Manila at its regular session today, November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed
a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or
temporary restraining order (TRO) 5 with the Regional Trial Court (RTC) of Manila, Branch
9 impleading as defendant, herein respondent City of Manila (the City) represented by
Mayor Lim. 6 MTDC prayed that the Ordinance, insofar as it includes motels and inns as
among its prohibited establishments, be declared invalid and unconstitutional. MTDC
claimed that as owner and operator of the Victoria Court in Malate, Manila it was
authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis
as well as to charge customers wash up rates for stays of only three hours. DACTSa
On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation
(TC) and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to
intervene and to admit attached complaint-in-intervention 7 on the ground that the
Ordinance directly affects their business interests as operators of drive-in hotels and
motels in Manila. 8 The three companies are components of the Anito Group of
Companies which owns and operates several hotels and motels in Metro Manila. 9
303
On December 23, 1992, the RTC granted the motion to intervene. 10 The RTC also
notified the Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of
the Rules of Court. On the same date, MTDC moved to withdraw as plaintiff. 11 ADTCaI
On December 28, 1992, the RTC granted MTDC's motion to withdraw. 12 The RTC
issued a TRO on January 14, 1993, directing the City to cease and desist from enforcing
the Ordinance. 13 The City filed an Answer dated January 22, 1993 alleging that the
Ordinance is a legitimate exercise of police power. 14
On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to
desist from the enforcement of the Ordinance. 15 A month later, on March 8, 1993, the
Solicitor General filed his Comment arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for
decision without trial as the case involved a purely legal question. 16 On October 20,
1993, the RTC rendered a decision declaring the Ordinance null and void. The dispositive
portion of the decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is
hereby declared null and void.
Accordingly, the preliminary injunction heretofor issued is hereby made permanent.
SO ORDERED. 17
The RTC noted that the ordinance "strikes at the personal liberty of the individual
guaranteed and jealously guarded by the Constitution." 18 Reference was made to the
provisions of the Constitution encouraging private enterprises and the incentive to needed
investment, as well as the right to operate economic enterprises. Finally, from the
observation that the illicit relationships the Ordinance sought to dissuade could
nonetheless be consummated by simply paying for a 12-hour stay, the RTC likened the
law to the ordinance annulled in Ynot v. Intermediate Appellate Court, 19 where the
legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be
effected through an inter-province ban on the transport of carabaos and carabeef.
ITSCED
The City later filed a petition for review on certiorari with the Supreme Court. 20 The
petition was docketed as G.R. No. 112471. However in a resolution dated January 26,
1994, the Court treated the petition as a petition for certiorari and referred the petition to
the Court of Appeals. 21
Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of
police power pursuant to Section 458 (4) (iv) of the Local Government Code which confers
on cities, among other local government units, the power:
[To] regulate the establishment, operation and maintenance of cafes, restaurants,
beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar
establishments, including tourist guides and transports. 22
The Ordinance, it is argued, is also a valid exercise of the power of the City under Article
III, Section 18 (kk) of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and proper for the sanitation and safety,
the furtherance of the prosperity and the promotion of the morality, peace, good order,
comfort, convenience and general welfare of the city and its inhabitants, and such others
as be necessary to carry into effect and discharge the powers and duties conferred by
this Chapter; and to fix penalties for the violation of ordinances which shall not exceed
two hundred pesos fine or six months imprisonment, or both such fine and imprisonment
for a single offense. 23
Petitioners argued that the Ordinance is unconstitutional and void since it violates the
right to privacy and the freedom of movement; it is an invalid exercise of police power;
and it is an unreasonable and oppressive interference in their business. acIHDA
The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality
of the Ordinance. 24 First, it held that the Ordinance did not violate the right to privacy or
304
the freedom of movement, as it only penalizes the owners or operators of establishments

that admit individuals for short time stays. Second, the virtually limitless reach of police
power is only constrained by having a lawful object obtained through a lawful method.
The lawful objective of the Ordinance is satisfied since it aims to curb immoral activities.
There is a lawful method since the establishments are still allowed to operate. Third, the
adverse effect on the establishments is justified by the well-being of its constituents in
general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of
Manila, liberty is regulated by law.
TC, WLC and STDC come to this Court via petition for review on certiorari. 25 In their
petition and Memorandum, petitioners in essence repeat the assertions they made before
the Court of Appeals. They contend that the assailed Ordinance is an invalid exercise of
police power.
II.
We must address the threshold issue of petitioners' standing. Petitioners allege that as
owners of establishments offering "wash-up" rates, their business is being unlawfully
interfered with by the Ordinance. However, petitioners also allege that the equal
protection rights of their clients are also being interfered with. Thus, the crux of the matter
is whether or not these establishments have the requisite standing to plead for protection
of their patrons' equal protection rights. aTcSID
Standing or locus standi is the ability of a party to demonstrate to the court sufficient
connection to and harm from the law or action challenged to support that party's
participation in the case. More importantly, the doctrine of standing is built on the principle
of separation of powers, 26 sparing as it does unnecessary interference or invalidation by
the judicial branch of the actions rendered by its co-equal branches of government.
The requirement of standing is a core component of the judicial system derived directly
from the Constitution. 27 The constitutional component of standing doctrine incorporates
concepts which concededly are not susceptible of precise definition. 28 In this jurisdiction,
the extancy of "a direct and personal interest" presents the most obvious cause, as well
as the standard test for a petitioner's standing. 29 In a similar vein, the United States
Supreme Court reviewed and elaborated on the meaning of the three constitutional
standing requirements of injury, causation, and redressability in Allen v. Wright. 30
Nonetheless, the general rules on standing admit of several exceptions such as the
overbreadth doctrine, taxpayer suits, third party standing and, especially in the
Philippines, the doctrine of transcendental importance. 31
For this particular set of facts, the concept of third party standing as an exception and the
overbreadth doctrine are appropriate. In Powers v. Ohio, 32 the United States Supreme
Court wrote that: "We have recognized the right of litigants to bring actions on behalf of
third parties, provided three important criteria are satisfied: the litigant must have suffered
an 'injury-in-fact', thus giving him or her a "sufficiently concrete interest" in the outcome
of the issue in dispute; the litigant must have a close relation to the third party; and there
must exist some hindrance to the third party's ability to protect his or her own interests".
33 Herein, it is clear that the business interests of the petitioners are likewise injured by
the Ordinance. They rely on the patronage of their customers for their continued viability
which appears to be threatened by the enforcement of the Ordinance. The relative silence
in constitutional litigation of such special interest groups in our nation such as the
American Civil Liberties Union in the United States may also be construed as a hindrance
for customers to bring suit. 34
American jurisprudence is replete with examples where parties-in-interest were allowed
standing to advocate or invoke the fundamental due process or equal protection claims
of other persons or classes of persons injured by state action. In Griswold v. Connecticut,
35 the United States Supreme Court held that physicians had standing to challenge a
reproductive health statute that would penalize them as accessories as well as to plead
the constitutional protections available to their patients. The Court held that:
"The rights of husband and wife, pressed here, are likely to be diluted or adversely
affected unless those rights are considered in a suit involving those who have this kind of
confidential relation to them." 36
305
An even more analogous example may be found in Craig v. Boren, 37 wherein the United
States Supreme Court held that a licensed beverage vendor has standing to raise the
equal protection claim of a male customer challenging a statutory scheme prohibiting the
sale of beer to males under the age of 21 and to females under the age of 18. The United
States High Court explained that the vendors had standing "by acting as advocates of the
rights of third parties who seek access to their market or function". 38 HacADE
Assuming arguendo that petitioners do not have a relationship with their patrons for the
former to assert the rights of the latter, the overbreadth doctrine comes into play. In
overbreadth analysis, challengers to government action are in effect permitted to raise
the rights of third parties. Generally applied to statutes infringing on the freedom of
speech, the overbreadth doctrine applies when a statute needlessly restrains even
constitutionally guaranteed rights. 39 In this case, the petitioners claim that the Ordinance
makes a sweeping intrusion into the right to liberty of their clients. We can see that based
on the allegations in the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional rights of
their clients to patronize their establishments for a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to mind not only the recent
City of Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations
Association, Inc. v. Hon. City Mayor of Manila. 40 Ermita-Malate concerned the City
ordinance requiring patrons to fill up a prescribed form stating personal information such
as name, gender, nationality, age, address and occupation before they could be admitted
to a motel, hotel or lodging house. This earlier ordinance was precisely enacted to
minimize certain practices deemed harmful to public morals. A purpose similar to the
annulled ordinance in City of Manila which sought a blanket ban on motels, inns and
similar establishments in the Ermita-Malate area. However, the constitutionality of the
ordinance in Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case at bar goes beyond
the singularity of the localities covered under the respective ordinances. All three
ordinances were enacted with a view of regulating public morals including particular illicit
activity in transient lodging establishments. This could be described as the middle case,
wherein there is no wholesale ban on motels and hotels but the services offered by these
establishments have been severely restricted. At its core, this is another case about the
extent to which the State can intrude into and regulate the lives of its citizens. ESDHCa
The test of a valid ordinance is well established. A long line of decisions including City of
Manila has held that for an ordinance to be valid, it must not only be within the corporate
powers of the local government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive requirements: (1)
must not contravene the Constitution or any statute; (2) must not be unfair or oppressive;
(3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not be unreasonable. 41
The Ordinance prohibits two specific and distinct business practices, namely wash rate
admissions and renting out a room more than twice a day. The ban is evidently sought to
be rooted in the police power as conferred on local government units by the Local
Government Code through such implements as the general welfare clause.
A.
Police power, while incapable of an exact definition, has been purposely veiled in general
terms to underscore its comprehensiveness to meet all exigencies and provide enough
room for an efficient and flexible response as the conditions warrant. 42 Police power is
based upon the concept of necessity of the State and its corresponding right to protect
itself and its people. 43 Police power has been used as justification for numerous and
varied actions by the State. These range from the regulation of dance halls, 44 movie
theaters, 45 gas stations 46 and cockpits. 47 The awesome scope of police power is best
demonstrated by the fact that in its hundred or so years of presence in our nation's legal
system, its use has rarely been denied.
306
The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered
establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves,
are unimpeachable and certainly fall within the ambit of the police power of the State. Yet
the desirability of these ends do not sanctify any and all means for their achievement.
Those means must align with the Constitution, and our emerging sophisticated analysis
of its guarantees to the people. The Bill of Rights stands as a rebuke to the seductive
theory of Macchiavelli, and, sometimes even, the political majorities animated by his
cynicism. ETDHaC
Even as we design the precedents that establish the framework for analysis of due
process or equal protection questions, the courts are naturally inhibited by a due
deference to the co-equal branches of government as they exercise their political
functions. But when we are compelled to nullify executive or legislative actions, yet
another form of caution emerges. If the Court were animated by the same passing fancies
or turbulent emotions that motivate many political decisions, judicial integrity is
compromised by any perception that the judiciary is merely the third political branch of
government. We derive our respect and good standing in the annals of history by acting
as judicious and neutral arbiters of the rule of law, and there is no surer way to that end
than through the development of rigorous and sophisticated legal standards through
which the courts analyze the most fundamental and far-reaching constitutional questions
of the day.
B.
The primary constitutional question that confronts us is one of due process, as
guaranteed under Section 1, Article III of the Constitution. Due process evades a precise
definition. 48 The purpose of the guaranty is to prevent arbitrary governmental
encroachment against the life, liberty and property of individuals. The due process
guaranty serves as a protection against arbitrary regulation or seizure. Even corporations
and partnerships are protected by the guaranty insofar as their property is concerned.
cAaTED
The due process guaranty has traditionally been interpreted as imposing two related but
distinct restrictions on government, "procedural due process" and "substantive due
process". Procedural due process refers to the procedures that the government must
follow before it deprives a person of life, liberty, or property. 49 Procedural due process
concerns itself with government action adhering to the established process when it makes
an intrusion into the private sphere. Examples range from the form of notice given to the
level of formality of a hearing.
If due process were confined solely to its procedural aspects, there would arise absurd
situation of arbitrary government action, provided the proper formalities are followed.
Substantive due process completes the protection envisioned by the due process clause.
It inquires whether the government has sufficient justification for depriving a person of life,
liberty, or property. 50
The question of substantive due process, moreso than most other fields of law, has
reflected dynamism in progressive legal thought tied with the expanded acceptance of
fundamental freedoms. Police power, traditionally awesome as it may be, is now
confronted with a more rigorous level of analysis before it can be upheld. The vitality
though of constitutional due process has not been predicated on the frequency with which
it has been utilized to achieve a liberal result for, after all, the libertarian ends should
sometimes yield to the prerogatives of the State. Instead, the due process clause has
acquired potency because of the sophisticated methodology that has emerged to
determine the proper metes and bounds for its application.
C.
The general test of the validity of an ordinance on substantive due process grounds is
best tested when assessed with the evolved footnote 4 test laid down by the U.S.
Supreme Court in U.S. v. Carolene Products. 51 Footnote 4 of the Carolene Products
case acknowledged that the judiciary would defer to the legislature unless there is a
discrimination against a "discrete and insular" minority or infringement of a "fundamental
307
right". 52 Consequently, two standards of judicial review were established: strict scrutiny
for laws dealing with freedom of the mind or restricting the political process, and the
rational basis standard of review for economic legislation. aITECA
A third standard, denominated as heightened or immediate scrutiny, was later adopted
by the U.S. Supreme Court for evaluating classifications based on gender 53 and
legitimacy. 54 Immediate scrutiny was adopted by the U.S. Supreme Court in Craig, 55
after the Court declined to do so in Reed v. Reed. 56 While the test may have first been
articulated in equal protection analysis, it has in the United States since been applied in
all substantive due process cases as well.
We ourselves have often applied the rational basis test mainly in analysis of equal
protection challenges. 57 Using the rational basis examination, laws or ordinances are
upheld if they rationally further a legitimate governmental interest. 58 Under intermediate
review, governmental interest is extensively examined and the availability of less
restrictive measures is considered. 59 Applying strict scrutiny, the focus is on the
presence of compelling, rather than substantial, governmental interest and on the
absence of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard
for determining the quality and the amount of governmental interest brought to justify the
regulation of fundamental freedoms. 60 Strict scrutiny is used today to test the validity of
laws dealing with the regulation of speech, gender, or race as well as other fundamental
rights as expansion from its earlier applications to equal protection. 61 The United States
Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights
such as suffrage, 62 judicial access 63 and interstate travel. 64
If we were to take the myopic view that an Ordinance should be analyzed strictly as to its
effect only on the petitioners at bar, then it would seem that the only restraint imposed by
the law which we are capacitated to act upon is the injury to property sustained by the
petitioners, an injury that would warrant the application of the most deferential standard
the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners
to invoke as well the constitutional rights of their patrons those persons who would be
deprived of availing short time access or wash-up rates to the lodging establishments in
question. HEaCcD
Viewed cynically, one might say that the infringed rights of these customers are trivial
since they seem shorn of political consequence. Concededly, these are not the sort of
cherished rights that, when proscribed, would impel the people to tear up their cedulas.
Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those "trivial" yet
fundamental freedoms which the people reflexively exercise any day without the
impairing awareness of their constitutional consequence that accurately reflect the
degree of liberty enjoyed by the people. Liberty, as integrally incorporated as a
fundamental right in the Constitution, is not a Ten Commandments-style enumeration of
what may or what may not be done; but rather an atmosphere of freedom where the
people do not feel labored under a Big Brother presence as they interact with each other,
their society and nature, in a manner innately understood by them as inherent, without
doing harm or injury to others.
D.
The rights at stake herein fall within the same fundamental rights to liberty which we
upheld in City of Manila v. Hon. Laguio, Jr. We expounded on that most primordial of
rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the
right to exist and the right to be free from arbitrary restraint or servitude. The term cannot
be dwarfed into mere freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the faculties with which he has been
endowed by his Creator, subject only to such restraint as are necessary for the common
welfare." [ 65 ] In accordance with this case, the rights of the citizen to be free to use his
faculties in all lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; and to pursue any avocation are all deemed embraced in the concept of
liberty. [ 66 ]
308
The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the
meaning of "liberty". It said:
While the Court has not attempted to define with exactness the liberty . . . guaranteed [by
the Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily
restraint but also the right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own conscience, and generally
to enjoy those privileges long recognized . . . as essential to the orderly pursuit of
happiness by free men. In a Constitution for a free people, there can be no doubt that the
meaning of "liberty" must be broad indeed. 67 [Citations omitted] DHSaCA
It cannot be denied that the primary animus behind the ordinance is the curtailment of
sexual behavior. The City asserts before this Court that the subject establishments "have
gained notoriety as venue of 'prostitution, adultery and fornications' in Manila since they
provide the necessary atmosphere for clandestine entry, presence and exit and thus
became the 'ideal haven for prostitutes and thrill-seekers'". 68 Whether or not this
depiction of a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual
behavior among consenting married or consenting single adults which is constitutionally
protected 69 will be curtailed as well, as it was in the City of Manila case. Our holding
therein retains significance for our purposes:
The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc, borrowing the words of
Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his
isolation, are indefeasible; indeed, they are so fundamental that they are the basis on
which his civic obligations are built. He cannot abandon the consequences of his isolation,
which are, broadly speaking, that his experience is private, and the will built out of that
experience personal to himself. If he surrenders his will to others, he surrenders himself.
If his will is set by the will of others, he ceases to be a master of himself. I cannot believe
that a man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion
of which should be justified by a compelling state interest. Morfe accorded recognition to
the right to privacy independently of its identification with liberty; in itself it is fully deserving
of constitutional protection. Governmental powers should stop short of certain intrusions
into the personal life of the citizen. 70 SDIaHE
We cannot discount other legitimate activities which the Ordinance would proscribe or
impair. There are very legitimate uses for a wash rate or renting the room out for more
than twice a day. Entire families are known to choose to pass the time in a motel or hotel
whilst the power is momentarily out in their homes. In transit passengers who wish to
wash up and rest between trips have a legitimate purpose for abbreviated stays in motels
or hotels. Indeed any person or groups of persons in need of comfortable private spaces
for a span of a few hours with purposes other than having sex or using illegal drugs can
legitimately look to staying in a motel or hotel as a convenient alternative.
E.
That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product
and the petitioners of lucrative business ties in with another constitutional requisite for the
legitimacy of the Ordinance as a police power measure. It must appear that the interests
of the public generally, as distinguished from those of a particular class, require an
interference with private rights and the means must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive of private rights. 71 It must
also be evident that no other alternative for the accomplishment of the purpose less
309
intrusive of private rights can work. More importantly, a reasonable relation must exist
between the purposes of the measure and the means employed for its accomplishment,
for even under the guise of protecting the public interest, personal rights and those
pertaining to private property will not be permitted to be arbitrarily invaded. 72
Lacking a concurrence of these requisites, the police measure shall be struck down as
an arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police
power is subject to judicial review when life, liberty or property is affected. 73 However,
this is not in any way meant to take it away from the vastness of State police power whose
exercise enjoys the presumption of validity. 74
Similar to the Comelec resolution requiring newspapers to donate advertising space to
candidates, this Ordinance is a blunt and heavy instrument. 75 The Ordinance makes no
distinction between places frequented by patrons engaged in illicit activities and patrons
engaged in legitimate actions. Thus it prevents legitimate use of places where illicit
activities are rare or even unheard of. A plain reading of section 3 of the Ordinance shows
it makes no classification of places of lodging, thus deems them all susceptible to illicit
patronage and subjects them without exception to the unjustified prohibition.
The Court has professed its deep sentiment and tenderness of the Ermita-Malate area,
its longtime home, 76 and it is skeptical of those who wish to depict our capital city the
Pearl of the Orient as a modern-day Sodom or Gomorrah for the Third World set.
Those still steeped in Nick Joaquin-dreams of the grandeur of Old Manila will have to
accept that Manila like all evolving big cities, will have its problems. Urban decay is a fact
of mega cities such as Manila, and vice is a common problem confronted by the modern
metropolis wherever in the world. The solution to such perceived decay is not to prevent
legitimate businesses from offering a legitimate product. Rather, cities revive themselves
by offering incentives for new businesses to sprout up thus attracting the dynamism of
individuals that would bring a new grandeur to Manila. IDCcEa
The behavior which the Ordinance seeks to curtail is in fact already prohibited and could
in fact be diminished simply by applying existing laws. Less intrusive measures such as
curbing the proliferation of prostitutes and drug dealers through active police work would
be more effective in easing the situation. So would the strict enforcement of existing laws
and regulations penalizing prostitution and drug use. These measures would have
minimal intrusion on the businesses of the petitioners and other legitimate merchants.
Further, it is apparent that the Ordinance can easily be circumvented by merely paying
the whole day rate without any hindrance to those engaged in illicit activities. Moreover,
drug dealers and prostitutes can in fact collect "wash rates" from their clientele by
charging their customers a portion of the rent for motel rooms and even apartments.
IV.
We reiterate that individual rights may be adversely affected only to the extent that may
fairly be required by the legitimate demands of public interest or public welfare. The State
is a leviathan that must be restrained from needlessly intruding into the lives of its citizens.
However well-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical
intrusion into the rights of the establishments as well as their patrons. The Ordinance
needlessly restrains the operation of the businesses of the petitioners as well as
restricting the rights of their patrons without sufficient justification. The Ordinance rashly
equates wash rates and renting out a room more than twice a day with immorality without
accommodating innocuous intentions.
The promotion of public welfare and a sense of morality among citizens deserves the full
endorsement of the judiciary provided that such measures do not trample rights this Court
is sworn to protect. 77 The notion that the promotion of public morality is a function of the
State is as old as Aristotle. 78 The advancement of moral relativism as a school of
philosophy does not de-legitimize the role of morality in law, even if it may foster wider
debate on which particular behavior to penalize. It is conceivable that a society with
relatively little shared morality among its citizens could be functional so long as the pursuit
of sharply variant moral perspectives yields an adequate accommodation of different
interests. 79
To be candid about it, the oft-quoted American maxim that "you cannot legislate morality"
is ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase
310
is more accurately interpreted as meaning that efforts to legislate morality will fail if they
are widely at variance with public attitudes about right and wrong. 80 Our penal laws, for
one, are founded on age-old moral traditions, and as long as there are widely accepted
distinctions between right and wrong, they will remain so oriented. EcHIDT
Yet the continuing progression of the human story has seen not only the acceptance of
the right-wrong distinction, but also the advent of fundamental liberties as the key to the
enjoyment of life to the fullest. Our democracy is distinguished from non-free societies not
with any more extensive elaboration on our part of what is moral and immoral, but from
our recognition that the individual liberty to make the choices in our lives is innate, and
protected by the State. Independent and fair-minded judges themselves are under a
moral duty to uphold the Constitution as the embodiment of the rule of law, by reason of
their expression of consent to do so when they take the oath of office, and because they
are entrusted by the people to uphold the law. 81
Even as the implementation of moral norms remains an indispensable complement to
governance, that prerogative is hardly absolute, especially in the face of the norms of due
process of liberty. And while the tension may often be left to the courts to relieve, it is
possible for the government to avoid the constitutional conflict by employing more
judicious, less drastic means to promote morality.
WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is
REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9, is
REINSTATED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No
pronouncement as to costs.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Corona, Carpio-Morales,
Azcuna, Chico-Nazario, Velasco, Jr., Nachura and Leonardo-de Castro, JJ., concur.
Carpio and Peralta, JJ., are on official leave.
Brion, J., is on sick leave.
||| (White Light Corp. v. City of Manila, G.R. No. 122846, [January 20, 2009], 596 PHIL
444-472)
2. OFFICE OF THE SOLICITOR VS. AYALA 600 SCRA 617 (2009)
THIRD DIVISION
[G.R. No. 177056. September 18, 2009.]
THE OFFICE OF THE SOLICITOR GENERAL, petitioner, vs. AYALA LAND
INCORPORATED, ROBINSON'S LAND CORPORATION, SHANGRI-LA PLAZA
CORPORATION and SM PRIME HOLDINGS, INC., respondents.
DECISION
CHICO-NAZARIO, J p:
Before this Court is a Petition for Review on Certiorari, 1 under Rule 45 of the Revised
Rules of Court, filed by petitioner Office of the Solicitor General (OSG), seeking the
reversal and setting aside of the Decision 2 dated 25 January 2007 of the Court of
Appeals in CA-G.R. CV No. 76298, which affirmed in toto the Joint Decision 3 dated 29
May 2002 of the Regional Trial Court (RTC) of Makati City, Branch 138, in Civil Cases
No. 00-1208 and No. 00-1210; and (2) the Resolution 4 dated 14 March 2007 of the
appellate court in the same case which denied the Motion for Reconsideration of the OSG.
The RTC adjudged that respondents Ayala Land Incorporated (Ayala Land), Robinsons
Land Corporation (Robinsons), Shangri-la Plaza Corporation (Shangri-la), and SM Prime
Holdings, Inc. (SM Prime) could not be obliged to provide free parking spaces in their
malls to their patrons and the general public.
311
Respondents Ayala Land, Robinsons, and Shangri-la maintain and operate shopping
malls in various locations in Metro Manila. Respondent SM Prime constructs, operates,
and leases out commercial buildings and other structures, among which, are SM City,
Manila; SM Centerpoint, Sta. Mesa, Manila; SM City, North Avenue, Quezon City; and
SM Southmall, Las Pias.
The shopping malls operated or leased out by respondents have parking facilities for all
kinds of motor vehicles, either by way of parking spaces inside the mall buildings or in
separate buildings and/or adjacent lots that are solely devoted for use as parking spaces.
Respondents Ayala Land, Robinsons, and SM Prime spent for the construction of their
own parking facilities. Respondent Shangri-la is renting its parking facilities, consisting of
land and building specifically used as parking spaces, which were constructed for the
lessor's account.
Respondents expend for the maintenance and administration of their respective parking
facilities. They provide security personnel to protect the vehicles parked in their parking
facilities and maintain order within the area. In turn, they collect the following parking fees
from the persons making use of their parking facilities, regardless of whether said persons
are mall patrons or not:
Respondent
Parking Fees
Ayala Land On weekdays, P25.00 for the first four
hours and P10.00 for every succeeding
hour; on weekends, flat rate of P25.00 per
day
Robinsons P20.00 for the first three hours and P10.00
for every succeeding hour
Shangri-la Flat rate of P30.00 per day
SM Prime
P10.00 to P20.00 (depending on whether
the parking space is outdoors or indoors)
for the first three hours and 59 minutes,
and P10.00 for every succeeding hour or
fraction thereof
The parking tickets or cards issued by respondents to vehicle owners contain the
stipulation that respondents shall not be responsible for any loss or damage to the
vehicles parked in respondents' parking facilities.
In 1999, the Senate Committees on Trade and Commerce and on Justice and Human
Rights conducted a joint investigation for the following purposes: (1) to inquire into the
legality of the prevalent practice of shopping malls of charging parking fees; (2) assuming
arguendo that the collection of parking fees was legally authorized, to find out the basis
and reasonableness of the parking rates charged by shopping malls; and (3) to determine
the legality of the policy of shopping malls of denying liability in cases of theft, robbery, or
carnapping, by invoking the waiver clause at the back of the parking tickets. Said Senate
Committees invited the top executives of respondents, who operate the major malls in the
country; the officials from the Department of Trade and Industry (DTI), Department of
Public Works and Highways (DPWH), Metro Manila Development Authority (MMDA), and
other local government officials; and the Philippine Motorists Association (PMA) as
representative of the consumers' group.
After three public hearings held on 30 September, 3 November, and 1 December 1999,
the afore-mentioned Senate Committees jointly issued Senate Committee Report No. 225
5 on 2 May 2000, in which they concluded:
In view of the foregoing, the Committees find that the collection of parking fees by
shopping malls is contrary to the National Building Code and is therefor [sic] illegal. While
it is true that the Code merely requires malls to provide parking spaces, without specifying
whether it is free or not, both Committees believe that the reasonable and logical
interpretation of the Code is that the parking spaces are for free. This interpretation is not
312
only reasonable and logical but finds support in the actual practice in other countries like
the United States of America where parking spaces owned and operated by mall owners
are free of charge.
Figuratively speaking, the Code has "expropriated" the land for parking something
similar to the subdivision law which require developers to devote so much of the land area
for parks.
Moreover, Article II of R.A. No. 9734 (Consumer Act of the Philippines) provides that "it
is the policy of the State to protect the interest of the consumers, promote the general
welfare and establish standards of conduct for business and industry". Obviously, a
contrary interpretation (i.e., justifying the collection of parking fees) would be going
against the declared policy of R.A. 7394.
Section 201 of the National Building Code gives the responsibility for the administration
and enforcement of the provisions of the Code, including the imposition of penalties for
administrative violations thereof to the Secretary of Public Works. This set up, however,
is not being carried out in reality.
In the position paper submitted by the Metropolitan Manila Development Authority
(MMDA), its chairman, Jejomar C. Binay, accurately pointed out that the Secretary of the
DPWH is responsible for the implementation/enforcement of the National Building Code.
After the enactment of the Local Government Code of 1991, the local government units
(LGU's) were tasked to discharge the regulatory powers of the DPWH. Hence, in the local
level, the Building Officials enforce all rules/regulations formulated by the DPWH relative
to all building plans, specifications and designs including parking space requirements.
There is, however, no single national department or agency directly tasked to supervise
the enforcement of the provisions of the Code on parking, notwithstanding the national
character of the law. 6
Senate Committee Report No. 225, thus, contained the following recommendations:
In light of the foregoing, the Committees on Trade and Commerce and Justice and Human
Rights hereby recommend the following:
1. The Office of the Solicitor General should institute the necessary action to enjoin the
collection of parking fees as well as to enforce the penal sanction provisions of the
National Building Code. The Office of the Solicitor General should likewise study how
refund can be exacted from mall owners who continue to collect parking fees.
2. The Department of Trade and Industry pursuant to the provisions of R.A. No. 7394,
otherwise known as the Consumer Act of the Philippines should enforce the provisions of
the Code relative to parking. Towards this end, the DTI should formulate the necessary
implementing rules and regulations on parking in shopping malls, with prior consultations
with the local government units where these are located. Furthermore, the DTI, in
coordination with the DPWH, should be empowered to regulate and supervise the
construction and maintenance of parking establishments.
3. Finally, Congress should amend and update the National Building Code to expressly
prohibit shopping malls from collecting parking fees by at the same time, prohibit them
from invoking the waiver of liability. 7
Respondent SM Prime thereafter received information that, pursuant to Senate
Committee Report No. 225, the DPWH Secretary and the local building officials of Manila,
Quezon City, and Las Pias intended to institute, through the OSG, an action to enjoin
respondent SM Prime and similar establishments from collecting parking fees, and to
impose upon said establishments penal sanctions under Presidential Decree No. 1096,
otherwise known as the National Building Code of the Philippines (National Building
313
Code), and its Implementing Rules and Regulations (IRR). With the threatened action
against it, respondent SM Prime filed, on 3 October 2000, a Petition for Declaratory Relief
8 under Rule 63 of the Revised Rules of Court, against the DPWH Secretary and local
building officials of Manila, Quezon City, and Las Pias. Said Petition was docketed as
Civil Case No. 00-1208 and assigned to the RTC of Makati City, Branch 138, presided
over by Judge Sixto Marella, Jr. (Judge Marella). In its Petition, respondent SM Prime
prayed for judgment:
a) Declaring Rule XIX of the Implementing Rules and Regulations of the National Building
Code as ultra vires, hence, unconstitutional and void;
b) Declaring [herein respondent SM Prime]'s clear legal right to lease parking spaces
appurtenant to its department stores, malls, shopping centers and other commercial
establishments; and
c) Declaring the National Building Code of the Philippines Implementing Rules and
Regulations as ineffective, not having been published once a week for three (3)
consecutive weeks in a newspaper of general circulation, as prescribed by Section 211
of Presidential Decree No. 1096.
[Respondent SM Prime] further prays for such other reliefs as may be deemed just and
equitable under the premises. 9
The very next day, 4 October 2000, the OSG filed a Petition for Declaratory Relief and
Injunction (with Prayer for Temporary Restraining Order and Writ of Preliminary
Injunction) 10 against respondents. This Petition was docketed as Civil Case No. 00-1210
and raffled to the RTC of Makati, Branch 135, presided over by Judge Francisco B. Ibay
(Judge Ibay). Petitioner prayed that the RTC:
1. After summary hearing, a temporary restraining order and a writ of preliminary
injunction be issued restraining respondents from collecting parking fees from their
customers; and
2. After hearing, judgment be rendered declaring that the practice of respondents in
charging parking fees is violative of the National Building Code and its Implementing
Rules and Regulations and is therefore invalid, and making permanent any injunctive writ
issued in this case.
Other reliefs just and equitable under the premises are likewise prayed for. 11
On 23 October 2000, Judge Ibay of the RTC of Makati City, Branch 135, issued an Order
consolidating Civil Case No. 00-1210 with Civil Case No. 00-1208 pending before Judge
Marella of RTC of Makati, Branch 138.
As a result of the pre-trial conference held on the morning of 8 August 2001, the RTC
issued a Pre-Trial Order 12 of even date which limited the issues to be resolved in Civil
Cases No. 00-1208 and No. 00-1210 to the following:
1. Capacity of the plaintiff [OSG] in Civil Case No. 00-1210 to institute the present
proceedings and relative thereto whether the controversy in the collection of parking fees
by mall owners is a matter of public welfare.
2. Whether declaratory relief is proper.
3. Whether respondent Ayala Land, Robinsons, Shangri-La and SM Prime are obligated
to provide parking spaces in their malls for the use of their patrons or the public in general,
free of charge.
4. Entitlement of the parties of [sic] award of damages. 13
314
On 29 May 2002, the RTC rendered its Joint Decision in Civil Cases No. 00-1208 and No.
00-1210.
The RTC resolved the first two issues affirmatively. It ruled that the OSG can initiate Civil
Case No. 00-1210 under Presidential Decree No. 478 and the Administrative Code of
1987. 14 It also found that all the requisites for an action for declaratory relief were
present, to wit:
The requisites for an action for declaratory relief are: (a) there is a justiciable controversy;
(b) the controversy is between persons whose interests are adverse; (c) the party seeking
the relief has a legal interest in the controversy; and (d) the issue involved is ripe for
judicial determination.
SM, the petitioner in Civil Case No. 001-1208 [sic] is a mall operator who stands to be
affected directly by the position taken by the government officials sued namely the
Secretary of Public Highways and the Building Officials of the local government units
where it operates shopping malls. The OSG on the other hand acts on a matter of public
interest and has taken a position adverse to that of the mall owners whom it sued. The
construction of new and bigger malls has been announced, a matter which the Court can
take judicial notice and the unsettled issue of whether mall operators should provide
parking facilities, free of charge needs to be resolved. 15
As to the third and most contentious issue, the RTC pronounced that:
The Building Code, which is the enabling law and the Implementing Rules and
Regulations do not impose that parking spaces shall be provided by the mall owners free
of charge. Absent such directive[,] Ayala Land, Robinsons, Shangri-la and SM [Prime]
are under no obligation to provide them for free. Article 1158 of the Civil Code is clear:
"Obligations derived from law are not presumed. Only those expressly determined in this
Code or in special laws are demandable and shall be regulated by the precepts of the law
which establishes them; and as to what has not been foreseen, by the provisions of this
Book (1090).["]
xxx xxx xxx
The provision on ratios of parking slots to several variables, like shopping floor area or
customer area found in Rule XIX of the Implementing Rules and Regulations cannot be
construed as a directive to provide free parking spaces, because the enabling law, the
Building Code does not so provide. . . . .
To compel Ayala Land, Robinsons, Shangri-La and SM [Prime] to provide parking spaces
for free can be considered as an unlawful taking of property right without just
compensation.
Parking spaces in shopping malls are privately owned and for their use, the mall operators
collect fees. The legal relationship could be either lease or deposit. In either case[,] the
mall owners have the right to collect money which translates into income. Should parking
spaces be made free, this right of mall owners shall be gone. This, without just
compensation. Further, loss of effective control over their property will ensue which is
frowned upon by law.
The presence of parking spaces can be viewed in another light. They can be looked at
as necessary facilities to entice the public to increase patronage of their malls because
without parking spaces, going to their malls will be inconvenient. These are[,] however[,]
business considerations which mall operators will have to decide for themselves. They
are not sufficient to justify a legal conclusion, as the OSG would like the Court to adopt
that it is the obligation of the mall owners to provide parking spaces for free. 16
The RTC then held that there was no sufficient evidence to justify any award for damages.
315
The RTC finally decreed in its 29 May 2002 Joint Decision in Civil Cases No. 00-1208
and No. 00-1210 that:
FOR THE REASONS GIVEN, the Court declares that Ayala Land[,] Inc., Robinsons Land
Corporation, Shangri-la Plaza Corporation and SM Prime Holdings[,] Inc. are not
obligated to provide parking spaces in their malls for the use of their patrons or public in
general, free of charge.
All counterclaims in Civil Case No. 00-1210 are dismissed.
No pronouncement as to costs. 17
CA-G.R. CV No. 76298 involved the separate appeals of the OSG 18 and respondent SM
Prime 19 filed with the Court of Appeals. The sole assignment of error of the OSG in its
Appellant's Brief was:
THE TRIAL COURT ERRED IN HOLDING THAT THE NATIONAL BUILDING CODE DID
NOT INTEND MALL PARKING SPACES TO BE FREE OF CHARGE[;]20
while the four errors assigned by respondent SM Prime in its Appellant's Brief were:
I
THE TRIAL COURT ERRED IN FAILING TO DECLARE RULE XIX OF THE
IMPLEMENTING RULES AS HAVING BEEN ENACTED ULTRA VIRES, HENCE,
UNCONSTITUTIONAL AND VOID.
II
THE TRIAL COURT ERRED IN FAILING TO DECLARE THE IMPLEMENTING RULES
INEFFECTIVE FOR NOT HAVING BEEN PUBLISHED AS REQUIRED BY LAW.
III
THE TRIAL COURT ERRED IN FAILING TO DISMISS THE OSG'S PETITION FOR
DECLARATORY RELIEF AND INJUNCTION FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES.
IV
THE TRIAL COURT ERRED IN FAILING TO DECLARE THAT THE OSG HAS NO
LEGAL CAPACITY TO SUE AND/OR THAT IT IS NOT A REAL PARTY-IN-INTEREST
IN THE INSTANT CASE. 21
Respondent Robinsons filed a Motion to Dismiss Appeal of the OSG on the ground that
the lone issue raised therein involved a pure question of law, not reviewable by the Court
of Appeals.
The Court of Appeals promulgated its Decision in CA-G.R. CV No. 76298 on 25 January
2007. The appellate court agreed with respondent Robinsons that the appeal of the OSG
should suffer the fate of dismissal, since "the issue on whether or not the National Building
Code and its implementing rules require shopping mall operators to provide parking
facilities to the public for free" was evidently a question of law. Even so, since CA-G.R.
CV No. 76298 also included the appeal of respondent SM Prime, which raised issues
worthy of consideration, and in order to satisfy the demands of substantial justice, the
Court of Appeals proceeded to rule on the merits of the case.
In its Decision, the Court of Appeals affirmed the capacity of the OSG to initiate Civil Case
No. 00-1210 before the RTC as the legal representative of the government, 22 and as the
one deputized by the Senate of the Republic of the Philippines through Senate Committee
Report No. 225.
316
The Court of Appeals rejected the contention of respondent SM Prime that the OSG failed
to exhaust administrative remedies. The appellate court explained that an administrative
review is not a condition precedent to judicial relief where the question in dispute is purely
a legal one, and nothing of an administrative nature is to be or can be done.
The Court of Appeals likewise refused to rule on the validity of the IRR of the National
Building Code, as such issue was not among those the parties had agreed to be resolved
by the RTC during the pre-trial conference for Civil Cases No. 00-1208 and No. 00-1210.
Issues cannot be raised for the first time on appeal. Furthermore, the appellate court
found that the controversy could be settled on other grounds, without touching on the
issue of the validity of the IRR. It referred to the settled rule that courts should refrain from
passing upon the constitutionality of a law or implementing rules, because of the principle
that bars judicial inquiry into a constitutional question, unless the resolution thereof is
indispensable to the determination of the case.
Lastly, the Court of Appeals declared that Section 803 of the National Building Code and
Rule XIX of the IRR were clear and needed no further construction. Said provisions were
only intended to control the occupancy or congestion of areas and structures. In the
absence of any express and clear provision of law, respondents could not be obliged and
expected to provide parking slots free of charge.
The fallo of the 25 January 2007 Decision of the Court of Appeals reads:
WHEREFORE, premises considered, the instant appeals are DENIED. Accordingly,
appealed Decision is hereby AFFIRMED in toto. 23
In its Resolution issued on 14 March 2007, the Court of Appeals denied the Motion for
Reconsideration of the OSG, finding that the grounds relied upon by the latter had already
been carefully considered, evaluated, and passed upon by the appellate court, and there
was no strong and cogent reason to modify much less reverse the assailed judgment.
The OSG now comes before this Court, via the instant Petition for Review, with a single
assignment of error:
THE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THE RULING OF THE
LOWER COURT THAT RESPONDENTS ARE NOT OBLIGED TO PROVIDE FREE
PARKING SPACES TO THEIR CUSTOMERS OR THE PUBLIC. 24
The OSG argues that respondents are mandated to provide free parking by Section 803
of the National Building Code and Rule XIX of the IRR.
According to Section 803 of the National Building Code:
SECTION 803. Percentage of Site Occupancy.
(a) Maximum site occupancy shall be governed by the use, type of construction, and
height of the building and the use, area, nature, and location of the site; and subject to
the provisions of the local zoning requirements and in accordance with the rules and
regulations promulgated by the Secretary.
In connection therewith, Rule XIX of the old IRR, 25 provides:
RULE XIX PARKING AND LOADING SPACE REQUIREMENTS
Pursuant to Section 803 of the National Building Code (PD 1096)providing for maximum
site occupancy, the following provisions on parking and loading space requirements shall
be observed:
1. The parking space ratings listed below are minimum off-street requirements for specific
uses/occupancies for buildings/structures:
1.1 The size of an average automobile parking slot shall be computed as 2.4 meters by
5.00 meters for perpendicular or diagonal parking, 2.00 meters by 6.00 meters for parallel
parking. A truck or bus parking/loading slot shall be computed at a minimum of 3.60
meters by 12.00 meters. The parking slot shall be drawn to scale and the total number of
which shall be indicated on the plans and specified whether or not parking
317
accommodations, are attendant-managed. (See Section 2 for computation of parking

requirements).
xxx xxx xxx
1.7 Neighborhood shopping center 1 slot/100 sq. m. of shopping floor area
The OSG avers that the aforequoted provisions should be read together with Section 102
of the National Building Code, which declares:
SECTION 102. Declaration of Policy.
It is hereby declared to be the policy of the State to safeguard life, health, property, and
public welfare, consistent with the principles of sound environmental management and
control; and to this end, make it the purpose of this Code to provide for all buildings and
structures, a framework of minimum standards and requirements to regulate and control
their location, site, design, quality of materials, construction, use, occupancy, and
maintenance.
The requirement of free-of-charge parking, the OSG argues, greatly contributes to the
aim of safeguarding "life, health, property, and public welfare, consistent with the
principles of sound environmental management and control". Adequate parking spaces
would contribute greatly to alleviating traffic congestion when complemented by quick and
easy access thereto because of free-charge parking. Moreover, the power to regulate
and control the use, occupancy, and maintenance of buildings and structures carries with
it the power to impose fees and, conversely, to control partially or, as in this case,
absolutely the imposition of such fees.
The Court finds no merit in the present Petition.
The explicit directive of the afore-quoted statutory and regulatory provisions, garnered
from a plain reading thereof, is that respondents, as operators/lessors of neighborhood
shopping centers, should provide parking and loading spaces, in accordance with the
minimum ratio of one slot per 100 square meters of shopping floor area. There is nothing
therein pertaining to the collection (or non-collection) of parking fees by respondents. In
fact, the term "parking fees" cannot even be found at all in the entire National Building
Code and its IRR.
Statutory construction has it that if a statute is clear and unequivocal, it must be given its
literal meaning and applied without any attempt at interpretation. 26 Since Section 803 of
the National Building Code and Rule XIX of its IRR do not mention parking fees, then
simply, said provisions do not regulate the collection of the same. The RTC and the Court
of Appeals correctly applied Article 1158 of the New Civil Code, which states:
Art. 1158. Obligations derived from law are not presumed. Only those expressly
determined in this Code or in special laws are demandable, and shall be regulated by the
precepts of the law which establishes them; and as to what has not been foreseen, by the
provisions of this Book. (Emphasis ours.)
Hence, in order to bring the matter of parking fees within the ambit of the National Building
Code and its IRR, the OSG had to resort to specious and feeble argumentation, in which
the Court cannot concur.
The OSG cannot rely on Section 102 of the National Building Code to expand the
coverage of Section 803 of the same Code and Rule XIX of the IRR, so as to include the
regulation of parking fees. The OSG limits its citation to the first part of Section 102 of the
National Building Code declaring the policy of the State "to safeguard life, health,
property, and public welfare, consistent with the principles of sound environmental
management and control"; but totally ignores the second part of said provision, which
reads, "and to this end, make it the purpose of this Code to provide for all buildings and
structures, a framework of minimum standards and requirements to regulate and control
their location, site, design, quality of materials, construction, use, occupancy, and
maintenance". While the first part of Section 102 of the National Building Code lays down
318
the State policy, it is the second part thereof that explains how said policy shall be carried
out in the Code. Section 102 of the National Building Code is not an all-encompassing
grant of regulatory power to the DPWH Secretary and local building officials in the name
of life, health, property, and public welfare. On the contrary, it limits the regulatory power
of said officials to ensuring that the minimum standards and requirements for all buildings
and structures, as set forth in the National Building Code, are complied with.
Consequently, the OSG cannot claim that in addition to fixing the minimum requirements
for parking spaces for buildings, Rule XIX of the IRR also mandates that such parking
spaces be provided by building owners free of charge. If Rule XIX is not covered by the
enabling law, then it cannot be added to or included in the implementing rules. The rulemaking power of administrative agencies must be confined to details for regulating the
mode or proceedings to carry into effect the law as it has been enacted, and it cannot be
extended to amend or expand the statutory requirements or to embrace matters not
covered by the statute. Administrative regulations must always be in harmony with the
provisions of the law because any resulting discrepancy between the two will always be
resolved in favor of the basic law. 27
From the RTC all the way to this Court, the OSG repeatedly referred to Republic v.
Gonzales 28 and City of Ozamis v. Lumapas 29 to support its position that the State has
the power to regulate parking spaces to promote the health, safety, and welfare of the
public; and it is by virtue of said power that respondents may be required to provide free
parking facilities. The OSG, though, failed to consider the substantial differences in the
factual and legal backgrounds of these two cases from those of the Petition at bar.
In Republic, the Municipality of Malabon sought to eject the occupants of two parcels of
land of the public domain to give way to a road-widening project. It was in this context
that the Court pronounced:
Indiscriminate parking along F. Sevilla Boulevard and other main thoroughfares was
prevalent; this, of course, caused the build up of traffic in the surrounding area to the great
discomfort and inconvenience of the public who use the streets. Traffic congestion
constitutes a threat to the health, welfare, safety and convenience of the people and it
can only be substantially relieved by widening streets and providing adequate parking
areas.
The Court, in City of Ozamis, declared that the City had been clothed with full power to
control and regulate its streets for the purpose of promoting public health, safety and
welfare. The City can regulate the time, place, and manner of parking in the streets and
public places; and charge minimal fees for the street parking to cover the expenses for
supervision, inspection and control, to ensure the smooth flow of traffic in the environs of
the public market, and for the safety and convenience of the public.
Republic and City of Ozamis involved parking in the local streets; in contrast, the present
case deals with privately owned parking facilities available for use by the general public.
In Republic and City of Ozamis, the concerned local governments regulated parking
pursuant to their power to control and regulate their streets; in the instant case, the DPWH
Secretary and local building officials regulate parking pursuant to their authority to ensure
compliance with the minimum standards and requirements under the National Building
Code and its IRR. With the difference in subject matters and the bases for the regulatory
powers being invoked, Republic and City of Ozamis do not constitute precedents for this
case.
Indeed, Republic and City of Ozamis both contain pronouncements that weaken the
position of the OSG in the case at bar. In Republic, the Court, instead of placing the
burden on private persons to provide parking facilities to the general public, mentioned
the trend in other jurisdictions wherein the municipal governments themselves took the
initiative to make more parking spaces available so as to alleviate the traffic problems,
thus:
Under the Land Transportation and Traffic Code, parking in designated areas along public
streets or highways is allowed which clearly indicates that provision for parking spaces
serves a useful purpose. In other jurisdictions where traffic is at least as voluminous as
here, the provision by municipal governments of parking space is not limited to parking
319
along public streets or highways. There has been a marked trend to build off-street
parking facilities with the view to removing parked cars from the streets. While the
provision of off-street parking facilities or carparks has been commonly undertaken by
private enterprise, municipal governments have been constrained to put up carparks in
response to public necessity where private enterprise had failed to keep up with the
growing public demand. American courts have upheld the right of municipal governments
to construct off-street parking facilities as clearly redounding to the public benefit. 30
In City of Ozamis, the Court authorized the collection by the City of minimal fees for the
parking of vehicles along the streets: so why then should the Court now preclude
respondents from collecting from the public a fee for the use of the mall parking facilities?
Undoubtedly, respondents also incur expenses in the maintenance and operation of the
mall parking facilities, such as electric consumption, compensation for parking attendants
and security, and upkeep of the physical structures.
It is not sufficient for the OSG to claim that "the power to regulate and control the use,
occupancy, and maintenance of buildings and structures carries with it the power to
impose fees and, conversely, to control, partially or, as in this case, absolutely, the
imposition of such fees". Firstly, the fees within the power of regulatory agencies to
impose are regulatory fees. It has been settled law in this jurisdiction that this broad and
all-compassing governmental competence to restrict rights of liberty and property carries
with it the undeniable power to collect a regulatory fee. It looks to the enactment of specific
measures that govern the relations not only as between individuals but also as between
private parties and the political society. 31 True, if the regulatory agencies have the power
to impose regulatory fees, then conversely, they also have the power to remove the same.
Even so, it is worthy to note that the present case does not involve the imposition by the
DPWH Secretary and local building officials of regulatory fees upon respondents; but the
collection by respondents of parking fees from persons who use the mall parking facilities.
Secondly, assuming arguendo that the DPWH Secretary and local building officials do
have regulatory powers over the collection of parking fees for the use of privately owned
parking facilities, they cannot allow or prohibit such collection arbitrarily or whimsically.
Whether allowing or prohibiting the collection of such parking fees, the action of the
DPWH Secretary and local building officials must pass the test of classic reasonableness
and propriety of the measures or means in the promotion of the ends sought to be
accomplished. 32
Keeping in mind the aforementioned test of reasonableness and propriety of measures
or means, the Court notes that Section 803 of the National Building Code falls under
Chapter 8 on Light and Ventilation. Evidently, the Code deems it necessary to regulate
site occupancy to ensure that there is proper lighting and ventilation in every building.
Pursuant thereto, Rule XIX of the IRR requires that a building, depending on its specific
use and/or floor area, should provide a minimum number of parking spaces. The Court,
however, fails to see the connection between regulating site occupancy to ensure proper
light and ventilation in every building vis--vis regulating the collection by building owners
of fees for the use of their parking spaces. Contrary to the averment of the OSG, the
former does not necessarily include or imply the latter. It totally escapes this Court how
lighting and ventilation conditions at the malls could be affected by the fact that parking
facilities thereat are free or paid for.
The OSG attempts to provide the missing link by arguing that:
Under Section 803 of the National Building Code, complimentary parking spaces are
required to enhance light and ventilation, that is, to avoid traffic congestion in areas
surrounding the building, which certainly affects the ventilation within the building itself,
which otherwise, the annexed parking spaces would have served. Free-of-charge parking
avoids traffic congestion by ensuring quick and easy access of legitimate shoppers to offstreet parking spaces annexed to the malls, and thereby removing the vehicles of these
legitimate shoppers off the busy streets near the commercial establishments. 33
The Court is unconvinced. The National Building Code regulates buildings, by setting the
minimum specifications and requirements for the same. It does not concern itself with
320
traffic congestion in areas surrounding the building. It is already a stretch to say that the
National Building Code and its IRR also intend to solve the problem of traffic congestion
around the buildings so as to ensure that the said buildings shall have adequate lighting
and ventilation. Moreover, the Court cannot simply assume, as the OSG has apparently
done, that the traffic congestion in areas around the malls is due to the fact that
respondents charge for their parking facilities, thus, forcing vehicle owners to just park in
the streets. The Court notes that despite the fees charged by respondents, vehicle owners
still use the mall parking facilities, which are even fully occupied on some days. Vehicle
owners may be parking in the streets only because there are not enough parking spaces
in the malls, and not because they are deterred by the parking fees charged by
respondents. Free parking spaces at the malls may even have the opposite effect from
what the OSG envisioned: more people may be encouraged by the free parking to bring
their own vehicles, instead of taking public transport, to the malls; as a result, the parking
facilities would become full sooner, leaving more vehicles without parking spaces in the
malls and parked in the streets instead, causing even more traffic congestion.
Without using the term outright, the OSG is actually invoking police power to justify the
regulation by the State, through the DPWH Secretary and local building officials, of
privately owned parking facilities, including the collection by the owners/operators of such
facilities of parking fees from the public for the use thereof. The Court finds, however, that
in totally prohibiting respondents from collecting parking fees from the public for the use
of the mall parking facilities, the State would be acting beyond the bounds of police power.
Police power is the power of promoting the public welfare by restraining and regulating
the use of liberty and property. It is usually exerted in order to merely regulate the use
and enjoyment of the property of the owner. The power to regulate, however, does not
include the power to prohibit. A fortiori, the power to regulate does not include the power
to confiscate. Police power does not involve the taking or confiscation of property, with
the exception of a few cases where there is a necessity to confiscate private property in
order to destroy it for the purpose of protecting peace and order and of promoting the
general welfare; for instance, the confiscation of an illegally possessed article, such as
opium and firearms. 34
When there is a taking or confiscation of private property for public use, the State is no
longer exercising police power, but another of its inherent powers, namely, eminent
domain. Eminent domain enables the State to forcibly acquire private lands intended for
public use upon payment of just compensation to the owner. 35
Normally, of course, the power of eminent domain results in the taking or appropriation of
title to, and possession of, the expropriated property; but no cogent reason appears why
the said power may not be availed of only to impose a burden upon the owner of
condemned property, without loss of title and possession. 36 It is a settled rule that neither
acquisition of title nor total destruction of value is essential to taking. It is usually in cases
where title remains with the private owner that inquiry should be made to determine
whether the impairment of a property is merely regulated or amounts to a compensable
taking. A regulation that deprives any person of the profitable use of his property
constitutes a taking and entitles him to compensation, unless the invasion of rights is so
slight as to permit the regulation to be justified under the police power. Similarly, a police
regulation that unreasonably restricts the right to use business property for business
purposes amounts to a taking of private property, and the owner may recover therefor.
37
Although in the present case, title to and/or possession of the parking facilities remain/s
with respondents, the prohibition against their collection of parking fees from the public,
for the use of said facilities, is already tantamount to a taking or confiscation of their
properties. The State is not only requiring that respondents devote a portion of the latter's
properties for use as parking spaces, but is also mandating that they give the public
access to said parking spaces for free. Such is already an excessive intrusion into the
property rights of respondents. Not only are they being deprived of the right to use a
portion of their properties as they wish, they are further prohibited from profiting from its
use or even just recovering therefrom the expenses for the maintenance and operation
of the required parking facilities.
321
The ruling of this Court in City Government of Quezon City v. Judge Ericta 38 is edifying.
Therein, the City Government of Quezon City passed an ordinance obliging private
cemeteries within its jurisdiction to set aside at least six percent of their total area for
charity, that is, for burial grounds of deceased paupers. According to the Court, the
ordinance in question was null and void, for it authorized the taking of private property
without just compensation:
There is no reasonable relation between the setting aside of at least six (6) percent of the
total area of all private cemeteries for charity burial grounds of deceased paupers and the
promotion of health, morals, good order, safety, or the general welfare of the people. The
ordinance is actually a taking without compensation of a certain area from a private
cemetery to benefit paupers who are charges of the municipal corporation. Instead of
building or maintaining a public cemetery for this purpose, the city passes the burden to
private cemeteries.
'The expropriation without compensation of a portion of private cemeteries is not covered
by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which
empowers the city council to prohibit the burial of the dead within the center of population
of the city and to provide for their burial in a proper place subject to the provisions of
general law regulating burial grounds and cemeteries. When the Local Government Code,
Batas Pambansa Blg. 337 provides in Section 177(q) that a sangguniang panlungsod
may "provide for the burial of the dead in such place and in such manner as prescribed
by law or ordinance" it simply authorizes the city to provide its own city owned land or to
buy or expropriate private properties to construct public cemeteries. This has been the
law, and practise in the past. It continues to the present. Expropriation, however, requires
payment of just compensation. The questioned ordinance is different from laws and
regulations requiring owners of subdivisions to set aside certain areas for streets, parks,
playgrounds, and other public facilities from the land they sell to buyers of subdivision
lots. The necessities of public safety, health, and convenience are very clear from said
requirements which are intended to insure the development of communities with
salubrious and wholesome environments. The beneficiaries of the regulation, in turn, are
made to pay by the subdivision developer when individual lots are sold to homeowners.
In conclusion, the total prohibition against the collection by respondents of parking fees
from persons who use the mall parking facilities has no basis in the National Building
Code or its IRR. The State also cannot impose the same prohibition by generally invoking
police power, since said prohibition amounts to a taking of respondents' property without
payment of just compensation.
Given the foregoing, the Court finds no more need to address the issue persistently raised
by respondent SM Prime concerning the unconstitutionality of Rule XIX of the IRR. In
addition, the said issue was not among those that the parties, during the pre-trial
conference for Civil Cases No. 12-08 and No. 00-1210, agreed to submit for resolution of
the RTC. It is likewise axiomatic that the constitutionality of a law, a regulation, an
ordinance or an act will not be resolved by courts if the controversy can be, as in this case
it has been, settled on other grounds. 39
WHEREFORE, the instant Petition for Review on Certiorari is hereby DENIED. The
Decision dated 25 January 2007 and Resolution dated 14 March 2007 of the Court of
Appeals in CA-G.R. CV No. 76298, affirming in toto the Joint Decision dated 29 May 2002
of the Regional Trial Court of Makati City, Branch 138, in Civil Cases No. 00-1208 and
No. 00-1210 are hereby AFFIRMED. No costs.
SO ORDERED.
Ynares-Santiago, Velasco, Jr., Nachura and Peralta, JJ., concur.
||| (Office of the Solicitor General v. Ayala Land, Inc., G.R. No. 177056, [September 18,
2009], 616 PHIL 587-616)
3. BSP MB VS. ANTONIO-VALENZUELA 602 SCRA 638 (2009)
322
THIRD DIVISION
[G.R. No. 184778. October 2, 2009.]
BANGKO SENTRAL NG PILIPINAS MONETARY BOARD and CHUCHI FONACIER,
petitioners, vs. HON. NINA G. ANTONIO-VALENZUELA, in her capacity as Regional Trial
Court Judge of Manila, Branch 28; RURAL BANK OF PARAAQUE, INC.; RURAL BANK
OF SAN JOSE (BATANGAS), INC.; RURAL BANK OF CARMEN (CEBU), INC.;
PILIPINO RURAL BANK, INC.; PHILIPPINE COUNTRYSIDE RURAL BANK, INC.;
RURAL BANK OF CALATAGAN (BATANGAS), INC. (now DYNAMIC RURAL BANK);
RURAL BANK OF DARBCI, INC.; RURAL BANK OF KANANGA (LEYTE), INC. (now
FIRST INTERSTATE RURAL BANK); RURAL BANK OF BISAYAS MINGLANILLA (now
BANK OF EAST ASIA); and SAN PABLO CITY DEVELOPMENT BANK, INC.,
respondents.
DECISION
VELASCO, JR., J p:
The Case
This is a Petition for Review on Certiorari under Rule 45 with Prayer for Issuance of a
Temporary Restraining Order (TRO)/Writ of Preliminary Injunction, questioning the
Decision dated September 30, 2008 1 of the Court of Appeals (CA) in CA-G.R. SP No.
103935. The CA Decision upheld the Order 2 dated June 4, 2008 of the Regional Trial
Court (RTC), Branch 28 in Manila, issuing writs of preliminary injunction in Civil Case Nos.
08-119243, 08-119244, 08-119245, 08-119246, 08-119247, 08-119248, 08-119249, 08119250, 08-119251, and 08-119273, and the Order dated May 21, 2008 that consolidated
the civil cases. IcCEDA
The Facts
In September of 2007, the Supervision and Examination Department (SED) of the Bangko
Sentral ng Pilipinas (BSP) conducted examinations of the books of the following banks:
Rural Bank of Paraaque, Inc. (RBPI), Rural Bank of San Jose (Batangas), Inc., Rural
Bank of Carmen (Cebu), Inc., Pilipino Rural Bank, Inc., Philippine Countryside Rural
Bank, Inc., Rural Bank of Calatagan (Batangas), Inc. (now Dynamic Rural Bank), Rural
Bank of Darbci, Inc., Rural Bank of Kananga (Leyte), Inc. (now First Interstate Rural
Bank), Rural Bank de Bisayas Minglanilla (now Bank of East Asia), and San Pablo City
Development Bank, Inc.
After the examinations, exit conferences were held with the officers or representatives of
the banks wherein the SED examiners provided them with copies of Lists of
Findings/Exceptions containing the deficiencies discovered during the examinations.
These banks were then required to comment and to undertake the remedial measures
stated in these lists within 30 days from their receipt of the lists, which remedial measures
included the infusion of additional capital. Though the banks claimed that they made the
additional capital infusions, petitioner Chuchi Fonacier, officer-in-charge of the SED, sent
separate letters to the Board of Directors of each bank, informing them that the SED found
that the banks failed to carry out the required remedial measures. In response, the banks
requested that they be given time to obtain BSP approval to amend their Articles of
Incorporation, that they have an opportunity to seek investors. They requested as well
that the basis for the capital infusion figures be disclosed, and noted that none of them
had received the Report of Examination (ROE) which finalizes the audit findings. They
also requested meetings with the BSP audit teams to reconcile audit figures. In response,
Fonacier reiterated the banks' failure to comply with the directive for additional capital
infusions.
On May 12, 2008, the RBPI filed a complaint for nullification of the BSP ROE with
application for a TRO and writ of preliminary injunction before the RTC docketed as Civil
Case No. 08-119243 against Fonacier, the BSP, Amado M. Tetangco, Jr., Romulo L.
323
Neri, Vicente B. Valdepenas, Jr., Raul A. Boncan, Juanita D. Amatong, Alfredo C.

Antonio, and Nelly F. Villafuerte. RBPI prayed that Fonacier, her subordinates, agents, or
any other person acting in her behalf be enjoined from submitting the ROE or any similar
report to the Monetary Board (MB), or if the ROE had already been submitted, the MB be
enjoined from acting on the basis of said ROE, on the allegation that the failure to furnish
the bank with a copy of the ROE violated its right to due process.
The Rural Bank of San Jose (Batangas), Inc., Rural Bank of Carmen (Cebu), Inc., Pilipino
Rural Bank, Inc., Philippine Countryside Rural Bank, Inc., Rural Bank of Calatagan
(Batangas), Inc., Rural Bank of Darbci, Inc., Rural Bank of Kananga (Leyte), Inc., and
Rural Bank de Bisayas Minglanilla followed suit, filing complaints with the RTC
substantially similar to that of RBPI, including the reliefs prayed for, which were raffled to
different branches and docketed as Civil Cases Nos. 08-119244, 08-119245, 08-119246,
08-119247, 08-119248, 08-119249, 08-119250, and 08-119251, respectively.
On May 13, 2008, the RTC denied the prayer for a TRO of Pilipino Rural Bank, Inc. The
bank filed a motion for reconsideration the next day.
On May 14, 2008, Fonacier and the BSP filed their opposition to the application for a TRO
and writ of preliminary injunction in Civil Case No. 08-119243 with the RTC. Respondent
Judge Nina Antonio-Valenzuela of Branch 28 granted RBPI's prayer for the issuance of
a TRO. ATaDHC
The other banks separately filed motions for consolidation of their cases in Branch 28,
which motions were granted. Judge Valenzuela set the complaint of Rural Bank of San
Jose (Batangas), Inc. for hearing on May 15, 2008. Petitioners assailed the validity of the
consolidation of the nine cases before the RTC, alleging that the court had already
prejudged the case by the earlier issuance of a TRO in Civil Case No. 08-119243, and
moved for the inhibition of respondent judge. Petitioners filed a motion for reconsideration
regarding the consolidation of the subject cases.
On May 16, 2008, San Pablo City Development Bank, Inc. filed a similar complaint against
the same defendants with the RTC, and this was docketed as Civil Case No. 08-119273
that was later on consolidated with Civil Case No. 08-119243. Petitioners filed an Urgent
Motion to Lift/Dissolve the TRO and an Opposition to the earlier motion for
reconsideration of Pilipino Rural Bank, Inc.
On May 19, 2008, Judge Valenzuela issued an Order granting the prayer for the issuance
of TROs for the other seven cases consolidated with Civil Case No. 08-119243. On May
21, 2008, Judge Valenzuela issued an Order denying petitioners' motion for
reconsideration regarding the consolidation of cases in Branch 28. On May 22, 2008,
Judge Valenzuela granted the urgent motion for reconsideration of Pilipino Rural Bank,
Inc. and issued a TRO similar to the ones earlier issued.
On May 26, 2008, petitioners filed a Motion to Dismiss against all the complaints (except
that of the San Pablo City Development Bank, Inc.), on the grounds that the complaints
stated no cause of action and that a condition precedent for filing the cases had not been
complied with. On May 29, 2008, a hearing was conducted on the application for a TRO
and for a writ of preliminary injunction of San Pablo City Development Bank, Inc.
The Ruling of the RTC
After the parties filed their respective memoranda, the RTC, on June 4, 2008, ruled that
the banks were entitled to the writs of preliminary injunction prayed for. It held that it had
been the practice of the SED to provide the ROEs to the banks before submission to the
MB. It further held that as the banks are the subjects of examinations, they are entitled to
copies of the ROEs. The denial by petitioners of the banks' requests for copies of the
ROEs was held to be a denial of the banks' right to due process.
The dispositive portion of the RTC's order reads:
WHEREFORE, the Court rules as follows:
1) Re: Civil Case No. 08-119243. Pursuant to Rule 58, Section 4(b) of the Revised Rules
of Court, plaintiff Rural Bank of Paranaque Inc. is directed to post a bond executed to the
defendants, in the amount of P500,000.00 to the effect that the plaintiff will pay to the
defendants all damages which they may sustain by reason of the injunction if the Court
should finally decide that the plaintiff was not entitled thereto. After posting of the bond
324
and approval thereof, let a writ of preliminary injunction be issued to enjoin and restrain
the defendants from submitting the Report of Examination or any other similar report
prepared in connection with the examination conducted on the plaintiff, to the Monetary
Board. In case such a Report on Examination [sic] or any other similar report prepared in
connection with the examination conducted on the plaintiff has been submitted to the
Monetary Board, the latter and its members (i.e., defendants Tetangco, Neri, Valdepenas,
Boncan, Amatong, Antonio, and Villafuerte) are enjoined and restrained from acting on
the basis of said report.
of Court, plaintiff Rural Bank of San Jose (Batangas), Inc. is directed to post a bond
executed to the defendants, in the amount of P500,000.00 to the effect that the plaintiff
will pay to the defendants all damages which they may sustain by reason of the injunction
if the Court should finally decide that the plaintiff was not entitled thereto. After posting of
the bond and approval thereof, let a writ of preliminary injunction be issued to enjoin and
restrain the defendants from submitting the Report of Examination or any other similar
report prepared in connection with the examination conducted on the plaintiff, to the
Monetary Board. In case such a Report on Examination [sic] or any other similar report
prepared in connection with the examination conducted on the plaintiff has been
submitted to the Monetary Board, the latter and its members (i.e., defendants Tetangco,
Neri, Valdepenas, Boncan, Amatong, Antonio, and Villafuerte) are enjoined and
restrained from acting on the basis of said report. ESIcaC
of Court, plaintiff Rural Bank of Carmen (Cebu), Inc. is directed to post a bond executed
to the defendants, in the amount of P500,000.00 to the effect that the plaintiff will pay to
the defendants all damages which they may sustain by reason of the injunction if the
Court should finally decide that the plaintiff was not entitled thereto. After posting of the
bond and approval thereof, let a writ of preliminary injunction be issued to enjoin and
restrained from acting on the basis of said report.
of Court, plaintiff Pilipino Rural Bank Inc. is directed to post a bond executed to the
the basis of said report.
of Court, plaintiff Philippine Countryside Rural Bank Inc. is directed to post a bond
325
of Court, plaintiff Dynamic Bank Inc. (Rural Bank of Calatagan) is directed to post a bond
of Court, plaintiff Rural Bank of DARBCI, Inc. is directed to post a bond executed to the
the basis of said report. cIDHSC
of Court, plaintiff Rural Bank of Kananga Inc. (First Intestate Bank), is directed to post a
bond executed to the defendants, in the amount of P500,000.00 to the effect that the
plaintiff will pay to the defendants all damages which they may sustain by reason of the
injunction if the Court should finally decide that the plaintiff was not entitled thereto. After
posting of the bond and approval thereof, let a writ of preliminary injunction be issued to
enjoin and restrain the defendants from submitting the Report of Examination or any other
similar report prepared in connection with the examination conducted on the plaintiff, to
the Monetary Board. In case such a Report on Examination [sic] or any other similar report
of Court, plaintiff Banco Rural De Bisayas Minglanilla (Cebu) Inc. (Bank of East Asia) is
directed to post a bond executed to the defendants, in the amount of P500,000.00 to the
effect that the plaintiff will pay to the defendants all damages which they may sustain by
reason of the injunction if the Court should finally decide that the plaintiff was not entitled
thereto. After posting of the bond and approval thereof, let a writ of preliminary injunction
be issued to enjoin and restrain the defendants from submitting the Report of Examination
326
or any other similar report prepared in connection with the examination conducted on the
plaintiff, to the Monetary Board. In case such a Report on Examination [sic] or any other
similar report prepared in connection with the examination conducted on the plaintiff has
been submitted to the Monetary Board, the latter and its members (i.e., defendants
Tetangco, Neri, Valdepenas, Boncan, Amatong, Antonio, and Villafuerte) are enjoined
and restrained from acting on the basis of said report.
10) Re: Civil Case No. 08-119273. Pursuant to Rule 58, Section 4(b) of the Revised
Rules of Court, plaintiff San Pablo City Development Bank, Inc. is directed to post a bond
restrained from acting on the basis of said report. 3
The Ruling of the CA
Petitioners then brought the matter to the CA via a petition for certiorari under Rule 65
claiming grave abuse of discretion on the part of Judge Valenzuela when she issued the
orders dated May 21, 2008 and June 4, 2008.
The CA ruled that the RTC committed no grave abuse of discretion when it ordered the
issuance of a writ of preliminary injunction and when it ordered the consolidation of the
10 cases.
It held that petitioners should have first filed a motion for reconsideration of the assailed
orders, and failed to justify why they resorted to a special civil action of certiorari instead.
The CA also found that aside from the technical aspect, there was no grave abuse of
discretion on the part of the RTC, and if there was a mistake in the assessment of
evidence by the trial court, that should be characterized as an error of judgment, and
should be correctable via appeal. HcACTE
The CA held that the principles of fairness and transparency dictate that the respondent
banks are entitled to copies of the ROE.
Regarding the consolidation of the 10 cases, the CA found that there was a similarity of
facts, reliefs sought, issues raised, defendants, and that plaintiffs and defendants were
represented by the same sets of counsels. It found that the joint trial of these cases would
prejudice any substantial right of petitioners.
Finding that no grave abuse of discretion attended the issuance of the orders by the RTC,
the CA denied the petition.
On November 24, 2008, a TRO was issued by this Court, restraining the CA, RTC, and
respondents from implementing and enforcing the CA Decision dated September 30,
2008 in CA-G.R. SP No. 103935. 4
By reason of the TRO issued by this Court, the SED was able to submit their ROEs to the
MB. The MB then prohibited the respondent banks from transacting business and placed
them under receivership under Section 53 of Republic Act No. (RA) 8791 5 and Sec. 30
of RA 7653 6 through MB Resolution No. 1616 dated December 9, 2008; Resolution Nos.
1637 and 1638 dated December 11, 2008; Resolution Nos. 1647, 1648, and 1649 dated
December 12, 2008; Resolution Nos. 1652 and 1653 dated December 16, 2008; and
Resolution Nos. 1692 and 1695 dated December 19, 2008, with the Philippine Deposit
Insurance Corporation as the appointed receiver.
Now we resolve the main petition.

Grounds in Support of Petition
327
I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THAT

THE INJUNCTION ISSUED BY THE REGIONAL TRIAL COURT VIOLATED SECTION
25 OF THE NEW CENTRAL BANK ACT AND EFFECTIVELY HANDCUFFED THE
BANGKO SENTRAL FROM DISCHARGING ITS FUNCTIONS TO THE GREAT AND
IRREPARABLE DAMAGE OF THE COUNTRY'S BANKING SYSTEM;
II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT
RESPONDENTS ARE ENTITLED TO BE FURNISHED COPIES OF THEIR
RESPECTIVE ROEs BEFORE THE SAME IS SUBMITTED TO THE MONETARY
BOARD IN VIEW OF THE PRINCIPLES OF FAIRNESS AND TRANSPARENCY
DESPITE LACK OF EXPRESS PROVISION IN THE NEW CENTRAL BANK ACT
REQUIRING BSP TO DO THE SAME;
III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN DEPARTING
FROM WELL-ESTABLISHED PRECEPTS OF LAW AND JURISPRUDENCE:
A. THE EXCEPTIONS CITED BY PETITIONER JUSTIFIED RESORT TO PETITION
FOR CERTIORARI UNDER RULE 65 INSTEAD OF FIRST FILING A MOTION FOR
RECONSIDERATION
B. RESPONDENT BANKS' ACT OF RESORTING IMMEDIATELY TO THE COURT
WAS PREMATURE SINCE IT WAS MADE IN UTTER DISREGARD OF THE PRINCIPLE
OF PRIMARY JURISDICTION AND EXHAUSTION OF ADMINISTRATIVE REMEDY
C. THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION BY THE REGIONAL
TRIAL COURT WAS NOT ONLY IMPROPER BUT AMOUNTED TO GRAVE ABUSE OF
DISCRETION 7
Our Ruling
The petition is meritorious.
In Lim v. Court of Appeals it was stated:
The requisites for preliminary injunctive relief are: (a) the invasion of right sought to be
protected is material and substantial; (b) the right of the complainant is clear and
unmistakable; and (c) there is an urgent and paramount necessity for the writ to prevent
serious damage.
As such, a writ of preliminary injunction may be issued only upon clear showing of an
actual existing right to be protected during the pendency of the principal action. The twin
requirements of a valid injunction are the existence of a right and its actual or threatened
violations. Thus, to be entitled to an injunctive writ, the right to be protected and the
violation against that right must be shown. 8
These requirements are absent in the present case.
In granting the writs of preliminary injunction, the trial court held that the submission of
the ROEs to the MB before the respondent banks would violate the right to due process
of said banks. cHDEaC
This is erroneous.
The respondent banks have failed to show that they are entitled to copies of the ROEs.
They can point to no provision of law, no section in the procedures of the BSP that shows
that the BSP is required to give them copies of the ROEs. Sec. 28 of RA 7653, or the
New Central Bank Act, which governs examinations of banking institutions, provides that
the ROE shall be submitted to the MB; the bank examined is not mentioned as a recipient
of the ROE.
The respondent banks cannot claim a violation of their right to due process if they are not
provided with copies of the ROEs. The same ROEs are based on the lists of
findings/exceptions containing the deficiencies found by the SED examiners when they
examined the books of the respondent banks. As found by the RTC, these lists of
328
findings/exceptions were furnished to the officers or representatives of the respondent

banks, and the respondent banks were required to comment and to undertake remedial
measures stated in said lists. Despite these instructions, respondent banks failed to
comply with the SED's directive.
Respondent banks are already aware of what is required of them by the BSP, and cannot
claim violation of their right to due process simply because they are not furnished with
copies of the ROEs. Respondent banks were held by the CA to be entitled to copies of
the ROEs prior to or simultaneously with their submission to the MB, on the principles of
fairness and transparency. Further, the CA held that if the contents of the ROEs are
essentially the same as those of the lists of findings/exceptions provided to said banks,
there is no reason not to give copies of the ROEs to the banks. This is a flawed conclusion,
since if the banks are already aware of the contents of the ROEs, they cannot say that
fairness and transparency are not present. If sanctions are to be imposed upon the
respondent banks, they are already well aware of the reasons for the sanctions, having
been informed via the lists of findings/exceptions, demolishing that particular argument.
The ROEs would then be superfluities to the respondent banks, and should not be the
basis for a writ of preliminary injunction. Also, the reliance of the RTC on Banco Filipino
v. Monetary Board 9 is misplaced. The petitioner in that case was held to be entitled to
annexes of the Supervision and Examination Sector's reports, as it already had a copy of
the reports themselves. It was not the subject of the case whether or not the petitioner
was entitled to a copy of the reports. And the ruling was made after the petitioner bank
was ordered closed, and it was allowed to be supplied with annexes of the reports in order
to better prepare its defense. In this instance, at the time the respondent banks requested
copies of the ROEs, no action had yet been taken by the MB with regard to imposing
sanctions upon said banks.
The issuance by the RTC of writs of preliminary injunction is an unwarranted interference
with the powers of the MB. Secs. 29 and 30 of RA 7653 10 refer to the appointment of a
conservator or a receiver for a bank, which is a power of the MB for which they need the
ROEs done by the supervising or examining department. The writs of preliminary
injunction issued by the trial court hinder the MB from fulfilling its function under the law.
The actions of the MB under Secs. 29 and 30 of RA 7653 "may not be restrained or set
aside by the court except on petition for certiorari on the ground that the action taken was
in excess of jurisdiction or with such grave abuse of discretion as to amount to lack or
excess of jurisdiction". The writs of preliminary injunction order are precisely what cannot
be done under the law by preventing the MB from taking action under either Sec. 29 or
Sec. 30 of RA 7653.
As to the third requirement, the respondent banks have shown no necessity for the writ
of preliminary injunction to prevent serious damage. The serious damage contemplated
by the trial court was the possibility of the imposition of sanctions upon respondent banks,
even the sanction of closure. Under the law, the sanction of closure could be imposed
upon a bank by the BSP even without notice and hearing. The apparent lack of procedural
due process would not result in the invalidity of action by the MB. This was the ruling in
Central Bank of the Philippines v. Court of Appeals. 11 This "close now, hear later"
scheme is grounded on practical and legal considerations to prevent unwarranted
dissipation of the bank's assets and as a valid exercise of police power to protect the
depositors, creditors, stockholders, and the general public. The writ of preliminary
injunction cannot, thus, prevent the MB from taking action, by preventing the submission
of the ROEs and worse, by preventing the MB from acting on such ROEs. IaDcTC
The trial court required the MB to respect the respondent banks' right to due process by
allowing the respondent banks to view the ROEs and act upon them to forestall any
sanctions the MB might impose. Such procedure has no basis in law and does in fact
violate the "close now, hear later" doctrine. We held in Rural Bank of San Miguel, Inc. v.
Monetary Board, Bangko Sentral ng Pilipinas:
It is well-settled that the closure of a bank may be considered as an exercise of police
power. The action of the MB on this matter is final and executory. Such exercise may
nonetheless be subject to judicial inquiry and can be set aside if found to be in excess of
329
jurisdiction or with such grave abuse of discretion as to amount to lack or excess of

jurisdiction. 12
The respondent banks cannot through seeking a writ of preliminary injunction by
appealing to lack of due process, in a roundabout manner prevent their closure by the
MB. Their remedy, as stated, is a subsequent one, which will determine whether the
closure of the bank was attended by grave abuse of discretion. Judicial review enters the
picture only after the MB has taken action; it cannot prevent such action by the MB. The
threat of the imposition of sanctions, even that of closure, does not violate their right to
due process, and cannot be the basis for a writ of preliminary injunction.
The "close now, hear later" doctrine has already been justified as a measure for the
protection of the public interest. Swift action is called for on the part of the BSP when it
finds that a bank is in dire straits. Unless adequate and determined efforts are taken by
the government against distressed and mismanaged banks, public faith in the banking
system is certain to deteriorate to the prejudice of the national economy itself, not to
mention the losses suffered by the bank depositors, creditors, and stockholders, who all
deserve the protection of the government. 13
The respondent banks have failed to show their entitlement to the writ of preliminary
injunction. It must be emphasized that an application for injunctive relief is construed
strictly against the pleader. 14 The respondent banks cannot rely on a simple appeal to
procedural due process to prove entitlement. The requirements for the issuance of the
writ have not been proved. No invasion of the rights of respondent banks has been shown,
nor is their right to copies of the ROEs clear and unmistakable. There is also no necessity
for the writ to prevent serious damage. Indeed the issuance of the writ of preliminary
injunction tramples upon the powers of the MB and prevents it from fulfilling its functions.
There is no right that the writ of preliminary injunction would protect in this particular case.
In the absence of a clear legal right, the issuance of the injunctive writ constitutes grave
abuse of discretion. 15 In the absence of proof of a legal right and the injury sustained by
the plaintiff, an order for the issuance of a writ of preliminary injunction will be nullified. 16
Courts are hereby reminded to take greater care in issuing injunctive relief to litigants,
that it would not violate any law. The grant of a preliminary injunction in a case rests on
the sound discretion of the court with the caveat that it should be made with great caution.
17 Thus, the issuance of the writ of preliminary injunction must have basis in and be in
accordance with law. All told, while the grant or denial of an injunction generally rests on
the sound discretion of the lower court, this Court may and should intervene in a clear
case of abuse. 18
WHEREFORE, the petition is hereby GRANTED. The assailed CA Decision dated
September 30, 2008 in CA-G.R. SP No. 103935 is hereby REVERSED. The assailed
order and writ of preliminary injunction of respondent Judge Valenzuela in Civil Case Nos.
08-119243, 08-119244, 08-119245, 08-119246, 08-119247, 08-119248, 08-119249, 08119250, 08-119251, and 08-119273 are hereby declared NULL and VOID.
SO ORDERED.
Ynares-Santiago, Chico-Nazario, Nachura and Peralta, JJ., concur.
||| (Bangko Sentral ng Pilipinas Monetary Board v. Antonio-Valenzuela, G.R. No. 184778,
[October 2, 2009], 617 PHIL 916-939)
4. ROXAS & CO. VS. DAMBA-NFSW 607 SCRA 33 (2009)
EN BANC
[G.R. No. 149548. December 4, 2009.]
ROXAS & COMPANY, INC., petitioner, vs. DAMBA-NFSW and the DEPARTMENT OF
AGRARIAN REFORM, * respondents.
[G.R. No. 167505. December 4, 2009.]
330
DAMAYAN NG MGA MANGGAGAWANG BUKID SA ASYENDA ROXAS-NATIONAL

FEDERATION OF SUGAR WORKERS (DAMBA-NFSW), petitioner, vs. SECRETARY
OF THE DEPT. OF AGRARIAN REFORM, ROXAS & CO., INC. AND/OR ATTY.
MARIANO AMPIL, respondents.
[G.R. No. 167540. December 4, 2009.]
KATIPUNAN NG MGA MAGBUBUKID SA HACIENDA ROXAS, INC. (KAMAHARI), rep.
by its President CARLITO CAISIP, and DAMAYAN NG MANGGAGAWANG BUKID SA
ASYENDA ROXAS-NATIONAL FEDERATION OF SUGAR WORKERS (DAMBANFSW), represented by LAURO MARTIN, petitioners, vs. SECRETARY OF THE DEPT.
OF AGRARIAN REFORM, ROXAS & CO., INC., respondents.
[G.R. No. 167543. December 4, 2009.]
DEPARTMENT OF LAND REFORM, FORMERLY DEPARTMENT OF AGRARIAN
REFORM (DAR), petitioner, vs. ROXAS & CO, INC., respondent.
[G.R. No. 167845. December 4, 2009.]
ROXAS & CO., INC., petitioner, vs. DAMBA-NFSW, respondent.
[G.R. No. 169163. December 4, 2009.]
DAMBA-NFSW REPRESENTED BY LAURO V. MARTIN, petitioner, vs. ROXAS & CO.,
INC., respondent.
[G.R. No. 179650. December 4, 2009.]
DAMBA-NFSW, petitioner, vs. ROXAS & CO., INC., respondent.
DECISION
CARPIO MORALES, J p:
The main subject of the seven consolidated petitions is the application of petitioner Roxas
& Co., Inc. (Roxas & Co.) for conversion from agricultural to non-agricultural use of its
three haciendas located in Nasugbu, Batangas containing a total area of almost 3,000
hectares. The facts are not new, the Court having earlier resolved intimately-related
issues dealing with these haciendas. Thus, in the 1999 case of Roxas & Co., Inc. v. Court
of Appeals, 1 the Court presented the facts as follows:
. . . Roxas & Co. is a domestic corporation and is the registered owner of three haciendas,
namely, Haciendas Palico, Banilad and Caylaway, all located in the Municipality of
Nasugbu, Batangas. Hacienda Palico is 1,024 hectares in area and is registered under
Transfer Certificate of Title (TCT) No. 985. This land is covered by Tax Declaration Nos.
0465, 0466, 0468, 0470, 0234 and 0354. Hacienda Banilad is 1,050 hectares in area,
registered under TCT No. 924 and covered by Tax Declaration Nos. 0236, 0237 and
0390. Hacienda Caylaway is 867.4571 hectares in area and is registered under TCT Nos.
T-44662, T-44663, T-44664 and T-44665.
xxx xxx xxx
On July 27, 1987, the Congress of the Philippines formally convened and took over
legislative power from the President. This Congress passed Republic Act No. 6657, the
Comprehensive Agrarian Reform Law (CARL) of 1988. The Act was signed by the
President on June 10, 1988 and took effect on June 15, 1988.
331
Before the law's effectivity, on May 6, 1988, [Roxas & Co.] filed with respondent DAR a
voluntary offer to sell [VOS] Hacienda Caylaway pursuant to the provisions of E.O. No.
229. Haciendas Palico and Banilad were later placed under compulsory acquisition by . .
. DAR in accordance with the CARL.
xxx xxx xxx
Nevertheless, on August 6, 1992, [Roxas & Co.], through its President, Eduardo J. Roxas,
sent a letter to the Secretary of . . . DAR withdrawing its VOS of Hacienda Caylaway. The
Sangguniang Bayan of Nasugbu, Batangas allegedly authorized the reclassification of
Hacienda Caylaway from agricultural to non-agricultural. As a result, petitioner informed
respondent DAR that it was applying for conversion of Hacienda Caylaway from
agricultural to other uses.
xxx xxx xxx 2 (emphasis and underscoring supplied)
The petitions in G.R. Nos. 167540 and 167543 nub on the interpretation of Presidential
Proclamation (PP) 1520 which was issued on November 28, 1975 by then President
Ferdinand Marcos. The PP reads:
DECLARING THE MUNICIPALITIES OF MARAGONDON AND TERNATE IN CAVITE
PROVINCE AND THE MUNICIPALITY OF NASUGBU IN BATANGAS AS A TOURIST
ZONE, AND FOR OTHER PURPOSES
WHEREAS, certain areas in the sector comprising the Municipalities of Maragondon and
Ternate in Cavite Province and Nasugbu in Batangas have potential tourism value after
being developed into resort complexes for the foreign and domestic market; and
WHEREAS, it is necessary to conduct the necessary studies and to segregate specific
geographic areas for concentrated efforts of both the government and private sectors in
developing their tourism potential; HIaSDc
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue
of the powers vested in me by the Constitution, do hereby declare the area comprising
the Municipalities of Maragondon and Ternate in Cavite Province and Nasugbu in
Batangas Province as a tourist zone under the administration and control of the Philippine
Tourism Authority (PTA) pursuant to Section 5 (D) of P.D. 564.
The PTA shall identify well-defined geographic areas within the zone with potential
tourism value, wherein optimum use of natural assets and attractions, as well as existing
facilities and concentration of efforts and limited resources of both government and
private sector may be affected and realized in order to generate foreign exchange as well
as other tourist receipts.
Any duly established military reservation existing within the zone shall be excluded from
this proclamation.
All proclamation, decrees or executive orders inconsistent herewith are hereby revoked
or modified accordingly. (emphasis and underscoring supplied).
The incidents which spawned the filing of the petitions in G.R. Nos. 149548, 167505,
167845, 169163 and 179650 are stated in the dissenting opinion of Justice Minita ChicoNazario, the original draft of which was made the basis of the Court's deliberations.
Essentially, Roxas & Co. filed its application for conversion of its three haciendas from
agricultural to non-agricultural on the assumption that the issuance of PP 1520 which
declared Nasugbu, Batangas as a tourism zone, reclassified them to non-agricultural
uses. Its pending application notwithstanding, the Department of Agrarian Reform (DAR)
issued Certificates of Land Ownership Award (CLOAs) to the farmer-beneficiaries in the
332
three haciendas including CLOA No. 6654 which was issued on October 15, 1993
covering 513.983 hectares, the subject of G.R. No. 167505.
The application for conversion of Roxas & Co. was the subject of the above-stated Roxas
& Co., Inc. v. Court of Appeals which the Court remanded to the DAR for the observance
of proper acquisition proceedings. As reflected in the above-quoted statement of facts in
said case, during the pendency before the DAR of its application for conversion following
its remand to the DAR or on May 16, 2000, Roxas & Co. filed with the DAR an application
for exemption from the coverage of the Comprehensive Agrarian Reform Program
(CARP) of 1988 on the basis of PP 1520 and of DAR Administrative Order (AO) No. 6,
Series of 1994 3 which states that all lands already classified as commercial, industrial,
or residential before the effectivity of CARP no longer need conversion clearance from
the DAR.
It bears mentioning at this juncture that on April 18, 1982, the Sangguniang Bayan of
Nasugbu enacted Municipal Zoning Ordinance No. 4 (Nasugbu MZO No. 4) which was
approved on May 4, 1983 by the Human Settlements Regulation Commission, now the
Housing and Land Use Regulatory Board (HLURB).
The records show that Sangguniang Bayan and Association of Barangay Captains of
Nasugbu filed before this Court petitions for intervention which were, however, denied by
Resolution of June 5, 2006 for lack of standing. 4
After the seven present petitions were consolidated and referred to the Court en banc, 5
oral arguments were conducted on July 7, 2009.
The core issues are:
1. Whether PP 1520 reclassified in 1975 all lands in the Maragondon-Ternate-Nasugbu
tourism zone to non-agricultural use to exempt Roxas & Co.'s three haciendas in Nasugbu
from CARP coverage; HSAcaE
2. Whether Nasugbu MSO No. 4, Series of 1982 exempted certain lots in Hacienda Palico
from CARP coverage; and
3. Whether the partial and complete cancellations by the DAR of CLOA No. 6654 subject
of G.R. No. 167505 is valid.
The Court shall discuss the issues in seriatim.
I. PP 1520 DID NOT AUTOMATICALLY CONVERT THE AGRICULTURAL LANDS IN
THE THREE MUNICIPALITIES INCLUDING NASUGBU TO NON-AGRICULTURAL
LANDS.
Roxas & Co. contends that PP 1520 declared the three municipalities as each constituting
a tourism zone, reclassified all lands therein to tourism and, therefore, converted their use
to non-agricultural purposes.
To determine the chief intent of PP 1520, reference to the "whereas clauses" is in order.
By and large, a reference to the congressional deliberation records would provide
guidance in dissecting the intent of legislation. But since PP 1520 emanated from the
legislative powers of then President Marcos during martial rule, reference to the whereas
clauses cannot be dispensed with. 6
The perambulatory clauses of PP 1520 identified only "certain areas in the sector
comprising the [three Municipalities that] have potential tourism value" and mandated the
conduct of "necessary studies" and the segregation of specific geographic areas to
achieve its purpose. Which is why the PP directed the Philippine Tourism Authority (PTA)
to identify what those potential tourism areas are. If all the lands in those tourism zones
were to be wholly converted to non-agricultural use, there would have been no need for
the PP to direct the PTA to identify what those "specific geographic areas" are.
The Court had in fact passed upon a similar matter before. Thus in DAR v. Franco, 7 it
pronounced:
Thus, the DAR Regional Office VII, in coordination with the Philippine Tourism Authority,
has to determine precisely which areas are for tourism development and excluded from
the Operation Land Transfer and the Comprehensive Agrarian Reform Program. And
333
suffice it to state here that the Court has repeatedly ruled that lands already classified as
non-agricultural before the enactment of RA 6657 on 15 June 1988 do not need any
conversion clearance. 8 (emphasis and underscoring supplied).
While the above pronouncement in Franco is an obiter, it should not be ignored in the
resolution of the present petitions since it reflects a more rational and just interpretation
of PP 1520. There is no prohibition in embracing the rationale of an obiter dictum in
settling controversies, or in considering related proclamations establishing tourism zones.
In the above-cited case of Roxas & Co. v. CA, 9 the Court made it clear that the "power
to determine whether Haciendas Palico, Banilad and Caylaway are non-agricultural,
hence, exempt from the coverage of the [Comprehensive Agrarian Reform Law] lies with
the [Department of Agrarian Reform], not with this Court." 10 The DAR, an administrative
body of special competence, denied, by Order of October 22, 2001, the application for
CARP exemption of Roxas & Co., it finding that PP 1520 did not automatically reclassify
all the lands in the affected municipalities from their original uses. It appears that the PTA
had not yet, at that time, identified the "specific geographic areas" for tourism
development and had no pending tourism development projects in the areas. Further,
report from the Center for Land Use Policy Planning and Implementation (CLUPPI)
indicated that the areas were planted with sugar cane and other crops. 11
Relatedly, the DAR, by Memorandum Circular No. 7, Series of 2004, 12 came up with
clarificatory guidelines and therein decreed that
A. . . .
B. Proclamations declaring general areas such as whole provinces, municipalities,
barangays, islands or peninsulas as tourist zones that merely: ASETHC
(1) recognize certain still unidentified areas within the covered provinces, municipalities,
barangays, islands, or peninsulas to be with potential tourism value and charge the
Philippine Tourism Authority with the task to identify/delineate specific geographic areas
within the zone with potential tourism value and to coordinate said areas' development;
or
(2) recognize the potential value of identified spots located within the general area
declared as tourist zone (i.e. . . .) and direct the Philippine Tourism Authority to coordinate
said areas' development; could not be regarded as effecting an automatic reclassification
of the entirety of the land area declared as tourist zone. This is so because
"reclassification of lands" denotes their allocation into some specific use and "providing
for the manner of their utilization and disposition" (Sec. 20, Local Government Code) or
the "act of specifying how agricultural lands shall be utilized for non-agricultural uses such
as residential, industrial, or commercial, as embodied in the land use plan." (Joint HLURB,
DAR, DA, DILG Memo. Circular Prescribing Guidelines for MC 54, S. 1995, Sec. 2)
A proclamation that merely recognizes the potential tourism value of certain areas within
the general area declared as tourist zone clearly does not allocate, reserve, or intend the
entirety of the land area of the zone for non-agricultural purposes. Neither does said
proclamation direct that otherwise CARPable lands within the zone shall already be used
for purposes other than agricultural.
Moreover, to view these kinds of proclamation as a reclassification for non-agricultural
purposes of entire provinces, municipalities, barangays, islands, or peninsulas would be
unreasonable as it amounts to an automatic and sweeping exemption from CARP in the
name of tourism development. The same would also undermine the land use
reclassification powers vested in local government units in conjunction with pertinent
agencies of government.
334
C. There being no reclassification, it is clear that said proclamations/issuances, assuming

[these] took effect before June 15, 1988, could not supply a basis for exemption of the
entirety of the lands embraced therein from CARP coverage . . . .
D. . . . . (underscoring in the original; emphasis and italics supplied)
The DAR's reading into these general proclamations of tourism zones deserves utmost
consideration, more especially in the present petitions which involve vast tracts of
agricultural land. To reiterate, PP 1520 merely recognized the "potential tourism value" of
certain areas within the general area declared as tourism zones. It did not reclassify the
areas to non-agricultural use.
Apart from PP 1520, there are similarly worded proclamations declaring the whole of
Ilocos Norte and Bataan Provinces, Camiguin, Puerto Prinsesa, Siquijor, Panglao Island,
parts of Cebu City and Municipalities of Argao and Dalaguete in Cebu Province as tourism
zones. 13
Indubitably, these proclamations, particularly those pertaining to the Provinces of Ilocos
Norte and Bataan, did not intend to reclassify all agricultural lands into non-agricultural
lands in one fell swoop. The Court takes notice of how the agrarian reform program was
and still is implemented in these provinces since there are lands that do not have
any tourism potential and are more appropriate for agricultural utilization.
Relatedly, a reference to the Special Economic Zone Act of 1995 14 provides a parallel
orientation on the issue. Under said Act, several towns and cities encompassing the
whole Philippines were readily identified as economic zones. 15 To uphold Roxas & Co.'s
reading of PP 1520 would see a total reclassification of practically all the agricultural lands
in the country to non-agricultural use. Propitiously, the legislature had the foresight to
include a bailout provision in Section 31 of said Act for land conversion. 16 The same
cannot be said of PP 1520, despite the existence of Presidential Decree (PD) No. 27 or
the Tenant Emancipation Decree, 17 which is the precursor of the CARP. HCITcA
Interestingly, then President Marcos also issued on September 26, 1972 PD No. 2 which
declared the entire Philippines as land reform area. 18 Such declaration did not intend to
reclassify all lands in the entire country to agricultural lands. President Marcos, about a
month later or on October 21, 1972, issued PD 27 which decreed that all private
agricultural lands primarily devoted to rice and corn were deemed awarded to their tenantfarmers.
Given these martial law-era decrees and considering the socio-political backdrop at the
time PP 1520 was issued in 1975, it is inconceivable that PP 1520, as well as other
similarly worded proclamations which are completely silent on the aspect of
reclassification of the lands in those tourism zones, would nullify the gains already then
achieved by PD 27.
Even so, Roxas & Co. turns to Natalia Realty v. DAR and NHA v. Allarde to support its
position. These cases are not even closely similar to the petitions in G.R. Nos. 167540
and 167543. The only time that these cases may find application to said petitions is when
the PTA actually identifies "well-defined geographic areas within the zone with potential
tourism value."
In remotely tying these two immediately-cited cases that involve specific and defined
townsite reservations for the housing program of the National Housing Authority to the
present petitions, Roxas & Co. cites Letter of Instructions No. 352 issued on December
22, 1975 which states that the survey and technical description of the tourism zones shall
be considered an integral part of PP 1520. There were, however, at the time no surveys
and technical delineations yet of the intended tourism areas.
On hindsight, Natalia and Allarde find application in the petitions in G.R. Nos. 179650 &
167505, which petitions are anchored on the extenuating effects of Nasugbu MZO No. 4,
but not in the petitions in G.R. Nos. 167540 & 167543 bearing on PP 1520, as will later
be discussed.
Of significance also in the present petitions is the issuance on August 3, 2007 of Executive
Order No. 647 19 by President Arroyo which proclaimed the areas in the Nasugbu
Tourism Development Plan as Special Tourism Zone. Pursuant to said Executive Order,
335
the PTA completed its validation of 21 out of 42 barangays as tourism priority areas,
hence, it is only after such completion that these identified lands may be subjected to
reclassification proceedings.
It bears emphasis that a mere reclassification of an agricultural land does not
automatically allow a landowner to change its use since there is still that process of
conversion before one is permitted to use it for other purposes. 20
The recent passage of the Tourism Act of 2009 21 also impacts on the present petitions
since Section 32 thereof states that:
Sec. 32. . . . . Any other area specifically defined as a tourism area, zone or spot under
any special or general law, decree or presidential issuance shall, as far as practicable, be
organized into a TEZ under the provisions of this Act. . . . . (italics and emphasis supplied)
Furthermore, it is only under this same Act that it is explicitly declared that lands identified
as part of a tourism zone shall qualify for exemption from CARP coverage. 22
The dissenting opinion ignores the supervening issuances mentioned above during the
pendency of the present petitions because they came after the effectivity of the CARP on
June 15, 1988. It labors on the supposition that PP 1520 had already reclassified the
lands encompassing the tourism zones; and that those subsequent issuances, even if
applied in the present cases, cannot be applied retroactively.
Relevantly, while it may be argued that a remand to the DAR would be proper in light of
the recent formulation of a tourism development plan, which was validated by the PTA,
that would put the cases within the ambit of PP 1520, the Court sees otherwise. Roxas &
Co. can only look to the provisions of the Tourism Act, and not to PP 1520, for possible
exemption.
II ROXAS & CO.'S APPLICATION IN DAR Administrative Case No. A-9999-142-97 FOR
CARP EXEMPTION IN HACIENDA PALICO SUBJECT OF G.R. NO. 179650 CANNOT
BE GRANTED IN VIEW OF DISCREPANCIES IN THE LOCATION AND IDENTITY OF
THE SUBJECT PARCELS OF LAND. DcICEa
Since PP 1520 did not automatically convert Haciendas Caylaway, Banilad and Palico
into non-agricultural estates, can Roxas & Co. invoke in the alternative Nasugbu MZO
No. 4, which reclassified in 1982 the haciendas to non-agricultural use to exclude six
parcels of land in Hacienda Palico from CARP coverage?
By Roxas & Co.'s contention, the affected six parcels of land which are the subject of
DAR Administrative Case No. A-9999-142-97 and nine parcels of land which are the
subject of DAR Administrative Case No. A-9999-008-98 involved in G.R. No. 167505, all
in Hacienda Palico, have been reclassified to non-agricultural uses via Nasugbu MZO No.
4 which was approved by the forerunner of HLURB.
Roxas & Co.'s contention fails.
To be sure, the Court had on several occasions decreed that a local government unit has
the power to classify and convert land from agricultural to non-agricultural prior to the
effectivity of the CARL. 23 In Agrarian Reform Beneficiaries Association v. Nicolas, 24 it
reiterated that
. . . the facts obtaining in this case are similar to those in Natalia Realty. Both subject
lands form part of an area designated for non-agricultural purposes. Both were classified
as non-agricultural lands prior to June 15, 1988, the date of effectivity of CARL.
xxx xxx xxx
In the case under review, the subject parcels of lands were reclassified within an urban
zone as per approved Official Comprehensive Zoning Map of the City of Davao. The
reclassification was embodied in City Ordinance No. 363, Series of 1982. As such, the
subject parcels of land are considered "non-agricultural" and may be utilized for
residential, commercial, and industrial purposes. The reclassification was later approved
by the HLURB. 25 (emphasis, italics and underscoring supplied)
336
The DAR Secretary 26 denied the application for exemption of Roxas & Co., however, in
this wise:
Initially, CLUPPI-2 based [its] evaluation on the lot nos. as appearing in CLOA No. 6654.
However, for purposes of clarity and to ensure that the area applied for exemption is
indeed part of TCT No. T-60034, CLUPPI-2 sought to clarify with [Roxas & Co.] the origin
of TCT No. T-60034. In a letter dated May 28, 1998, [Roxas & Co.] explains that portions
of TCT No. T-985, the mother title, was subdivided into 125 lots pursuant to PD 27. A
total of 947.8417 was retained by the landowners and was subsequently registered under
TCT No. 49946. [[Roxas & Co.] further explains that TCT No. 49946 was further
subdivided into several lots (Lot 125-A to Lot 125-P) with Lot No. 125-N registered under
TCT No. 60034. [A] review of the titles, however, shows that the origin of T-49946 is T783 and not T-985. On the other hand, the origin of T-60034 is listed as 59946, and not
T-49946. The discrepancies were attributed by [Roxas & Co.] to typographical errors
which were "acknowledged and initialled" [sic] by the ROD. Per verification . . ., the
discrepancies . . . cannot be ascertained. 27 (emphasis and underscoring supplied)
In denying Roxas & Co.'s motion for reconsideration, the DAR Secretary held:
The landholdings covered by the aforesaid titles do not correspond to the Certification
dated February 11, 1998 of the [HLURB], the Certification dated September 12, 1996
issued by the Municipal Planning and Development Coordinator, and the Certifications
dated July 31, 1997 and May 27, 1997 issued by the National Irrigation Authority. The
certifications were issued for Lot Nos. 21, 24, 28, 31, 32 and 34. Thus, it was not even
possible to issue exemption clearance over the lots covered by TCT Nos. 60019 to 60023.
Furthermore, we also note the discrepancies between the certifications issued by the
HLURB and the Municipal Planning Development Coordinator as to the area of the
specific lots. 28 (emphasis and underscoring supplied)
In affirming the DAR Secretary's denial of Roxas & Co.'s application for exemption, the
Court of Appeals, in CA-G.R. SP No. 63146 subject of G.R. No. 179650, observed:
In the instant case, a perusal of the documents before us shows that there is no indication
that the said TCTs refer to the same properties applied for exemption by [Roxas & Co.] It
is true that the certifications . . . refer, among others, to DAR Lot Nos. 21, 24, 28, 31, 32
and 34 . . . But these certifications contain nothing to show that these lots are the same
as Lots 125-A, 125-B, 125-C, 125-D and 125-E covered by TCT Nos. 60019, 60020,
60021, 60022 and 60023, respectively. While [Roxas & Co.] claims that DAR Lot Nos. 21,
24 and 31 correspond to the aforementioned TCTs submitted to the DAR no evidence
was presented to substantiate such allegation.
Moreover, [Roxas & Co.] failed to submit TCT 634 which it claims covers DAR Lot Nos.
28, 32 and 24. (TSN, April 24, 2001, pp. 43-44)
xxx xxx xxx
[Roxas & Co.] also claims that subject properties are located at Barangay Cogunan and
Lumbangan and that these properties are part of the zone classified as Industrial under
Municipal Ordinance No. 4, Series of 1982 of the Municipality of Nasugbu, Batangas. . . .
a scrutiny of the said Ordinance shows that only Barangays Talangan and Lumbangan of
the said municipality were classified as Industrial ZonesBarangay Cogunan was not
included. . . . . In fact, the TCTs submitted by [Roxas & Co.] show that the properties
covered by said titles are all located at Barrio Lumbangan. 29 (emphasis and
underscoring supplied) DICSaH
Its foregoing findings notwithstanding, the appellate court still allowed Roxas & Co. to
adduce additional evidence to support its application for exemption under Nasugbu MZO
No. 4.
337
Meanwhile, Roxas & Co. appealed the appellate court's decision in CA-G.R. No. SP No.
63146 affirming the DAR Secretary's denial of its application for CARP exemption in
Hacienda Palico (now the subject of G.R. No. 149548).
When Roxas & Co. sought the re-opening of the proceedings in DAR Administrative Case
No. A-9999-142-97 (subject of G.R. No. 179650), and offered additional evidence in
support of its application for CARP exemption, the DAR Secretary, this time, granted its
application for the six lots including Lot No. 36 since the additional documents offered by
Roxas & Co. mentioned the said lot.
In granting the application, the DAR Secretary 30 examined anew the evidence submitted
by Roxas & Co. which consisted mainly of certifications from various local and national
government agencies. 31 Petitioner in G.R. Nos. 167505, 167540, 169163 and 179650,
Damayan ng mga Manggagawang Bukid sa Asyenda Roxas-National Federation of
Sugar Workers (DAMBA-NFSW), the organization of the farmer-beneficiaries, moved to
have the grant of the application reconsidered but the same was denied by the DAR by
Order of December 12, 2003, hence, it filed a petition for certiorari before the Court of
Appeals, docketed as CA-G.R. SP No. 82225, on grounds of forum-shopping and grave
abuse of discretion. The appellate court, by Decision of October 31, 2006, ruled that
DAMBA-NFSW availed of the wrong mode of appeal. At all events, it dismissed its petition
as it upheld the DAR Secretary's ruling that Roxas & Co. did not commit forum-shopping,
hence, the petition of DAMBA-NGSW in G.R. No. 179650.
While ordinarily findings of facts of quasi-judicial agencies are generally accorded great
weight and even finality by the Court if supported by substantial evidence in recognition
of their expertise on the specific matters under their consideration, 32 this legal precept
cannot be made to apply in G.R. No. 179650.
Even as the existence and validity of Nasugbu MZO No. 4 had already been established,
there remains in dispute the issue of whether the parcels of land involved in DAR
Administrative Case No. A-9999-142-97 subject of G.R. No. 179650 are actually within
the said zoning ordinance.
The Court finds that the DAR Secretary indeed committed grave abuse of discretion when
he ignored the glaring inconsistencies in the certifications submitted early on by Roxas &
Co. in support of its application vis--vis the certifications it later submitted when the DAR
Secretary reopened DAR Administrative Case No. A-9999-142-97.
Notably, then DAR Secretary Horacio Morales, on one hand, observed that the
"landholdings covered by the aforesaid titles do not correspond to the Certification dated
February 11, 1998 of the [HLURB], the Certification dated September 12, 1996 issued by
the Municipal Planning and Development Coordinator, and the Certifications dated July
31, 1997 and May 27, 1997 issued by the National Irrigation Authority." On the other hand,
then Secretary Hernani Braganza relied on a different set of certifications which were
issued later or on September 19, 1996.
In this regard, the Court finds in order the observation of DAMBA-NFSW that Roxas &
Co. should have submitted the comprehensive land use plan and pointed therein the
exact locations of the properties to prove that indeed they are within the area of coverage
of Nasugbu MZO No. 4.
The petitions in G.R. Nos. 179650 & 149548 must be distinguished from Junio v. Garilao
33 wherein the certifications submitted in support of the application for exemption of the
therein subject lot were mainly considered on the presumption of regularity in their
issuance, there being no doubt on the location and identity of the subject lot. 34 In G.R.
No. 179650, there exist uncertainties on the location and identities of the properties being
applied for exemption.
G.R. No. 179650 & G.R. No. 149548 must accordingly be denied for lack of merit.
III. ROXAS & CO.'S APPLICATION FOR CARP EXEMPTION IN DAR Administrative
Case No. A-9999-008-98 FOR THE NINE PARCELS OF LAND IN HACIENDA PALICO
SUBJECT OF G.R. NO. 167505 SHOULD BE GRANTED.
The Court, however, takes a different stance with respect to Roxas & Co.'s application for
CARP exemption in DAR Administrative Case No. A-9999-008-98 over nine parcels of
land identified as Lot Nos. 20, 13, 37, 19-B, 45, 47, 49, 48-1 and 48-2 which are portions
338
of TCT No. 985 covering 45.9771 hectares in Hacienda Palico, subject of G.R. No.
167505.
In its application, Roxas & Co. submitted the following documents:
1. Letter-application dated 29 September 1997 signed by Elino SJ. Napigkit, for and on
behalf of Roxas & Company, Inc., seeking exemption from CARP coverage of subject
landholdings;
2. Secretary's Certificate dated September 2002 executed by Mariano M. Ampil III,
Corporate Secretary of Roxas & Company, Inc., indicating a Board Resolution authorizing
him to represent the corporation in its application for exemption with the DAR. The same
Board Resolution revoked the authorization previously granted to the Sierra Management
& Resources Corporation;
3. Photocopy of TCT No. 985 and its corresponding Tax Declaration No. 0401; TaISEH
4. Location and vicinity maps of subject landholdings;
5. Certification dated 10 July 1997 issued by Reynaldo Garcia, Municipal Planning and
Development Coordinator (MPDC) and Zoning Administrator of Nasugbu, Batangas,
stating that the subject parcels of land are within the Urban Core Zone as specified in
Zone A. VII of Municipal Zoning Ordinance No. 4, Series of 1982, approved by the Human
Settlements Regulatory Commission (HSRC), now the Housing and Land Use Regulatory
Board (HLURB), under Resolution No. 123, Series of 1983, dated 4 May 1983;
6. Two (2) Certifications both dated 31 August 1998, issued by Alfredo Tan II, Director,
HLURB, Region IV, stating that the subject parcels of land appear to be within the
Residential cluster Area as specified in Zone VII of Municipal Zoning Ordinance No. 4,
Series of 1982, approved under HSRC Resolution No. 123, Series of 1983, dated 4 May
1983; 35
xxx xxx xxx (emphasis and underscoring supplied)
By Order of November 6, 2002, the DAR Secretary granted the application for exemption
but issued the following conditions:
1. The farmer-occupants within subject parcels of land shall be maintained in their
peaceful possession and cultivation of their respective areas of tillage until a final
determination has been made on the amount of disturbance compensation due and
entitlement of such farmer-occupants thereto by the PARAD of Batangas;
2. No development shall be undertaken within the subject parcels of land until the
appropriate disturbance compensation has been paid to the farmer-occupants who are
determined by the PARAD to be entitled thereto. Proof of payment of disturbance
compensation shall be submitted to this Office within ten (10) days from such payment;
and
3. The cancellation of the CLOA issued to the farmer-beneficiaries shall be subject of a
separate proceeding before the PARAD of Batangas. 36
DAMBA-NSFW moved for reconsideration but the DAR Secretary denied the same and
explained further why CLOA holders need not be informed of the pending application for
exemption in this wise:
As regards the first ground raised by [DAMBA-NSFW], it should be remembered that an
application for CARP-exemption pursuant to DOJ Opinion No. 44, series of 1990, as
implemented by DAR Administrative Order No. 6, series of 1994, is non-adversarial or
non-litigious in nature. Hence, applicant is correct in saying that nowhere in the rules is it
required that occupants of a landholding should be notified of an initiated or pending
exemption application.
339
xxx xxx xxx

With regard [to] the allegation that oppositors-movants are already CLOA holders of
subject propert[ies] and deserve to be notified, as owners, of the initiated questioned
exemption application, is of no moment. The Supreme Court in the case of Roxas [&] Co.,
Inc. v. Court of Appeals, 321 SCRA 106, held:
"We stress that the failure of respondent DAR to comply with the requisites of due process
in the acquisition proceedings does not give this Court the power to nullify the CLOA's
already issued to the farmer beneficiaries. . . . . Anyhow, the farmer[-]beneficiaries hold
the property in trust for the rightful owner of the land."
Since subject landholding has been validly determined to be CARP-exempt, therefore,
the previous issuance of the CLOA of oppositors-movants is erroneous. Hence, similar to
the situation of the above-quoted Supreme Court Decision, oppositors-movants only hold
the property in trust for the rightful owners of the land and are not the owners of subject
landholding who should be notified of the exemption application of applicant Roxas &
Company, Incorporated.
Finally, this Office finds no substantial basis to reverse the assailed Orders since there is
substantial compliance by the applicant with the requirements for the issuance of
exemption clearance under DAR AO 6 (1994). 37
On DAMBA-NSFW's petition for certiorari, the Court of Appeals, noting that the petition
was belatedly filed, sustained, by Decision of December 20, 1994 and Resolution of May
7, 2007, 38 the DAR Secretary's finding that Roxas & Co. had substantially complied with
the prerequisites of DAR AO 6, Series of 1994. Hence, DAMBA-NFSW's petition in G.R.
No. 167505.
The Court finds no reversible error in the Court of Appeals' assailed issuances, the orders
of the DAR Secretary which it sustained being amply supported by evidence.
IV. THE CLOAs ISSUED BY THE DAR in ADMINISTRATIVE CASE NO. A-9999-008-98
SUBJECT OF G.R. No. 179650 TO THE FARMER-BENEFICIARIES INVOLVING THE
NINE PARCELS OF LAND IN HACIENDA PALICO MUST BE CANCELLED. TAacIE
Turning now to the validity of the issuance of CLOAs in Hacienda Palico vis--vis the
present dispositions: It bears recalling that in DAR Administrative Case Nos. A-9999-00898 and A-9999-142-97 (G.R. No. 179650), the Court ruled for Roxas & Co.'s grant of
exemption in DAR Administrative Case No. A-9999-008-98 but denied the grant of
exemption in DAR Administrative Case No. A-9999-142-97 for reasons already
discussed. It follows that the CLOAs issued to the farmer-beneficiaries in DAR
Administrative Case No. A-9999-008-98 must be cancelled.
But first, the Court digresses. The assertion of DAMBA-NSFW that the petitions for partial
and complete cancellations of the CLOAs subject of DARAB Case Nos. R-401-003-2001
to R-401-005-2001 and No. 401-239-2001 violated the earlier order in Roxas v. Court of
Appeals does not lie. Nowhere did the Court therein pronounce that the CLOAs issued
"cannot and should not be cancelled," what was involved therein being the legality of the
acquisition proceedings. The Court merely reiterated that it is the DAR which has primary
jurisdiction to rule on the validity of CLOAs. Thus it held:
. . . [t]he failure of respondent DAR to comply with the requisites of due process in the
acquisition proceedings does not give this Court the power to nullify the [CLOAs] already
issued to the farmer-beneficiaries. To assume the power is to short-circuit the
administrative process, which has yet to run its regular course. Respondent DAR must
be given the chance to correct its procedural lapses in the acquisition proceedings. . . . .
Anyhow, the farmer beneficiaries hold the property in trust for the rightful owner of the
land. 39
340
On the procedural question raised by Roxas & Co. on the appellate court's relaxation of
the rules by giving due course to DAMBA-NFSW's appeal in CA G.R. SP No. 72198, the
subject of G.R. No. 167845:
Indeed, the perfection of an appeal within the statutory period is jurisdictional and failure
to do so renders the assailed decision final and executory. 40 A relaxation of the rules
may, however, for meritorious reasons, be allowed in the interest of justice. 41 The Court
finds that in giving due course to DAMBA-NSFW's appeal, the appellate court committed
no reversible error. Consider its ratiocination:
. . . . To deny [DAMBA-NSFW]'s appeal with the PARAD will not only affect their right over
the parcel of land subject of this petition with an area of 103.1436 hectares, but also that
of the whole area covered by CLOA No. 6654 since the PARAD rendered a Joint
Resolution of the Motion for Reconsideration filed by the [DAMBA-NSFW] with regard to
[Roxas & Co.]'s application for partial and total cancellation of the CLOA in DARAB Cases
No. R-401-003-2001 to R-401-005-2001 and No. 401-239-2001. There is a pressing need
for an extensive discussion of the issues as raised by both parties as the matter of
canceling CLOA No. 6654 is of utmost importance, involving as it does the probable
displacement of hundreds of farmer-beneficiaries and their families. . . . (underscoring
supplied)
Unlike courts of justice, the DARAB, as a quasi-judicial body, is not bound to strictly
observe rules of procedure and evidence. To strictly enforce rules on appeals in this case
would render to naught the Court's dispositions on the other issues in these consolidated
petitions.
In the main, there is no logical recourse except to cancel the CLOAs issued for the nine
parcels of land identified as Lot Nos. 20, 13, 37, 19-B, 45, 47, 49, 48-1 and 48-2 which
are portions of TCT No. 985 covering 45.9771 hectares in Hacienda Palico (or those
covered by DAR Administrative Case No. A-9999-008-98). As for the rest of the CLOAs,
they should be respected since Roxas & Co., as shown in the discussion in G.R. Nos.
167540, 167543 and 167505, failed to prove that the other lots in Hacienda Palico and
the other two haciendas, aside from the above-mentioned nine lots, are CARP-exempt.
Conformably, Republic Act No. 3844 (R.A. No. 3844), as amended, 42 mandates that
disturbance compensation be given to tenants of parcels of land upon finding that "(t)he
landholding is declared by the department head upon recommendation of the National
Planning Commission to be suited for residential, commercial, industrial or some other
urban purposes." 43 In addition, DAR AO No. 6, Series of 1994 directs the payment of
disturbance compensation before the application for exemption may be completely
granted. HDTCSI
Roxas & Co. is thus mandated to first satisfy the disturbance compensation of affected
farmer-beneficiaries in the areas covered by the nine parcels of lands in DAR AO No. A9999-008-98 before the CLOAs covering them can be cancelled. And it is enjoined to
strictly follow the instructions of R.A. No. 3844.
Finally then, and in view of the Court's dispositions in G.R. Nos. 179650 and 167505, the
May 27, 2001 Decision of the Provincial Agrarian Reform Adjudicator (PARAD) 44 in
DARAB Case No. 401-239-2001 ordering the total cancellation of CLOA No. 6654,
subject of G.R. No. 169163, is SET ASIDE except with respect to the CLOAs issued for
Lot Nos. 20, 13, 37, 19-B, 45, 47, 49, 48-1 and 48-2 which are portions of TCT No. 985
covering 45.9771 hectares in Hacienda Palico (or those covered by DAR Administrative
Case No. A-9999-008-98). It goes without saying that the motion for reconsideration of
DAMBA-NFSW is granted to thus vacate the Court's October 19, 2005 Resolution
dismissing DAMBA-NFSW's petition for review of the appellate court's Decision in CAG.R. SP No. 75952; 45
WHEREFORE,
1) In G.R. No. 167540, the Court REVERSES and SETS ASIDE the November 24, 2003
Decision 46 and March 18, 2005 Resolution of the Court of Appeals in CA-G.R. SP No.
72131 which declared that Presidential Proclamation No. 1520 reclassified the lands in
the municipalities of Nasugbu in Batangas and Maragondon and Ternate in Cavite to nonagricultural use;
341
2) The Court accordingly GRANTS the Motion for Reconsideration of the Department of
Agrarian Reform in G.R. No. 167543 and REVERSES and SETS ASIDE its Resolution of
June 20, 2005;
3) In G.R. No. 149548, the Court DENIES the petition for review of Roxas & Co. for lack
of merit;
4) In G.R. No. 179650, the Court GRANTS the petition for review of DAMBA-NSFW and
REVERSES and SETS ASIDE the October 31, 2006 Decision and August 16, 2007
Resolution of the Court of Appeals in CA-G.R. SP No. 82225;
5) In G.R. No. 167505, the Court DENIES the petition for review of DAMBA-NSFW and
AFFIRMS the December 20, 2004 Decision and March 7, 2005 Resolution of the Court
of Appeals in CA-G.R. SP No. 82226;
6) In G.R. No. 167845, the Court DENIES Roxas & Co.'s petition for review for lack of
merit and AFFIRMS the September 10, 2004 Decision and April 14, 2005 Resolution of
the Court of Appeals;
7) In G.R. No. 169163, the Court SETS ASIDE the Decisions of the Provincial Agrarian
Reform Adjudicator in DARAB Case No. 401-239-2001 ordering the cancellation of CLOA
No. 6654 and DARAB Cases Nos. R-401-003-2001 to No. R-401-005-2001 granting the
partial cancellation of CLOA No. 6654. The CLOAs issued for Lots No. 21 No. 24, No. 26,
No. 31, No. 32 and No. 34 or those covered by DAR Administrative Case No. A-9999142-97) remain; and
8) Roxas & Co. is ORDERED to pay the disturbance compensation of affected farmerbeneficiaries in the areas covered by the nine parcels of lands in DAR Administrative
Case No. A-9999-008-98 before the CLOAs therein can be cancelled, and is ENJOINED
to strictly follow the mandate of R.A. No. 3844.
No pronouncement as to costs.
SO ORDERED. CacTSI
Carpio, Corona, Velasco, Jr., Peralta, Del Castillo, Abad and Villarama, Jr., JJ., concur.
Puno, C.J., see separate opinion.
Chico-Nazario, J., please see dissenting opinion.
Nachura, Brion and Bersamin, JJ., took no part.
Leonardo-de Castro, J., I join the dissent of Justice Minita Chico-Nazario.
||| (Roxas & Co., Inc. v. DAMBA-NFSW, G.R. No. 149548, 167505, 167540, 167543,
167845, 169163, 179650, [December 4, 2009], 622 PHIL 37-200)
5. CHEVRON VS. BCDA 630 SCRA 519 (2010)
THIRD DIVISION
[G.R. No. 173863. September 15, 2010.]
CHEVRON PHILIPPINES, INC. (Formerly CALTEX PHILIPPINES, INC.), petitioner, vs.
BASES CONVERSION DEVELOPMENT AUTHORITY and CLARK DEVELOPMENT
CORPORATION, respondents.
DECISION
This petition for review on certiorari assails the Decision 1 dated November 30, 2005 of
the Court of Appeals (CA) in CA-G.R. SP No. 87117, which affirmed the Resolution 2
342
dated August 2, 2004 and the Order 3 dated September 30, 2004 of the Office of the
President in O.P. Case No. 04-D-170. SaCIDT
The facts follow.
On June 28, 2002, the Board of Directors of respondent Clark Development Corporation
(CDC) issued and approved Policy Guidelines on the Movement of Petroleum Fuel to and
from the Clark Special Economic Zone (CSEZ) 4 which provided, among others, for the
following fees and charges:
1. Accreditation Fee
xxx xxx xxx
2. Annual Inspection Fee
xxx xxx xxx
3. Royalty Fees
Suppliers delivering fuel from outside sources shall be assessed the following royalty
fees:
- Php0.50 per liter those delivering Coastal petroleum fuel to CSEZ locators not
sanctioned by CDC
- Php1.00 per liter those bringing-in petroleum fuel (except Jet A-1) from outside
sources
xxx xxx xxx
4. Gate Pass Fee
xxx xxx xxx 5
The above policy guidelines were implemented effective July 27, 2002. On October 1,
2002, CDC sent a letter 6 to herein petitioner Chevron Philippines, Inc. (formerly Caltex
Philippines, Inc.), a domestic corporation which has been supplying fuel to Nanox
Philippines, a locator inside the CSEZ since 2001, informing the petitioner that a royalty
fee of P0.50 per liter shall be assessed on its deliveries to Nanox Philippines effective
August 1, 2002. Thereafter, on October 21, 2002 a Statement of Account 7 was sent by
CDC billing the petitioner for royalty fees in the amount of P115,000.00 for its fuel sales
from Coastal depot to Nanox Philippines from August 1-31 to September 3-21, 2002.
Claiming that nothing in the law authorizes CDC to impose royalty fees or any fees based
on a per unit measurement of any commodity sold within the special economic zone,
petitioner sent a letter 8 dated October 30, 2002 to the President and Chief Executive
Officer of CDC, Mr. Emmanuel Y. Angeles, to protest the assessment for royalty fees.
Petitioner nevertheless paid the said fees under protest on November 4, 2002. CcTIDH
On August 18, 2003, CDC again wrote a letter 9 to petitioner regarding the latter's
unsettled royalty fees covering the period of December 2002 to July 2003. Petitioner
responded through a letter 10 dated September 8, 2003 reiterating its continuing objection
over the assessed royalty fees and requested a refund of the amount paid under protest
on November 4, 2002. The letter also asked CDC to revoke the imposition of such royalty
fees. The request was denied by CDC in a letter 11 dated September 29, 2003.
Petitioner elevated its protest before respondent Bases Conversion Development
Authority (BCDA) arguing that the royalty fees imposed had no reasonable relation to the
probable expenses of regulation and that the imposition on a per unit measurement of
fuel sales was for a revenue generating purpose, thus, akin to a "tax". The protest was
however denied by BCDA in a letter 12 dated March 3, 2004.
343
Petitioner appealed to the Office of the President which dismissed 13 the appeal for lack
of merit on August 2, 2004 and denied 14 petitioner's motion for reconsideration thereof
on September 30, 2004.
Aggrieved, petitioner elevated the case to the CA which likewise dismissed 15 the appeal
for lack of merit on November 30, 2005 and denied 16 the motion for reconsideration on
July 26, 2006.
The CA held that in imposing the challenged royalty fees, respondent CDC was exercising
its right to regulate the flow of fuel into CSEZ, which is bolstered by the fact that it
possesses exclusive right to distribute fuel within CSEZ pursuant to its Joint Venture
Agreement (JVA) 17 with Subic Bay Metropolitan Authority (SBMA) and Coastal Subic
Bay Terminal, Inc. (CSBTI) dated April 11, 1996. The appellate court also found that
royalty fees were assessed on fuel delivered, not on the sale, by petitioner and that the
basis of such imposition was petitioner's delivery receipts to Nanox Philippines. The fact
that revenue is incidentally also obtained does not make the imposition a tax as long as
the primary purpose of such imposition is regulation. 18
Petitioner filed a motion for reconsideration but the CA denied the same in its Resolution
19 dated July 26, 2006.
Hence, this petition raising the following grounds:
I. THE ISSUE RAISED BEFORE THE COURT A QUO IS A QUESTION OF SUBSTANCE
NOT HERETOFORE DETERMINED BY THE HONORABLE SUPREME COURT.
II. THE RULING OF THE COURT OF APPEALS THAT THE CDC HAS THE POWER TO
IMPOSE THE QUESTIONED "ROYALTY FEES" IS CONTRARY TO LAW.
III. THE COURT OF APPEALS WAS MANIFESTLY MISTAKEN AND COMMITTED
GRAVE ABUSE OF DISCRETION AND A CLEAR MISUNDERSTANDING OF FACTS
WHEN IT RULED CONTRARY TO THE EVIDENCE THAT: (i) THE QUESTIONED
"ROYALTY FEE" IS PRIMARILY FOR REGULATION; AND (ii) ANY REVENUE EARNED
THEREFROM IS MERELY INCIDENTAL TO THE PURPOSE OF REGULATION.
IV. THE COURT OF APPEALS FAILED TO GIVE DUE WEIGHT AND CONSIDERATION
TO THE EVIDENCE PRESENTED BY CPI SUCH AS THE LETTERS COMING FROM
RESPONDENT CDC ITSELF PROVING THAT THE QUESTIONED ROYALTY FEES
ARE IMPOSED ON THE BASIS OF FUEL SALES (NOT DELIVERY OF FUEL) AND NOT
FOR REGULATION BUT PURELY FOR INCOME GENERATION, I.E., AS PRICE OR
CONSIDERATION FOR THE RIGHT TO MARKET AND DISTRIBUTE FUEL INSIDE
THE CSEZ. 20 SECHIA
Petitioner argues that CDC does not have any power to impose royalty fees on sale of
fuel inside the CSEZ on the basis of purely income generating functions and its exclusive
right to market and distribute goods inside the CSEZ. Such imposition of royalty fees for
revenue generating purposes would amount to a tax, which the respondents have no
power to impose. Petitioner stresses that the royalty fee imposed by CDC is not regulatory
in nature but a revenue generating measure to increase its profits and to further enhance
its exclusive right to market and distribute fuel in CSEZ. 21
Petitioner would also like this Court to note that the fees imposed, assuming arguendo
they are regulatory in nature, are unreasonable and are grossly in excess of regulation
costs. It adds that the amount of the fees should be presumed to be unreasonable and
that the burden of proving that the fees are not unreasonable lies with the respondents.
22
On the part of the respondents, they argue that the purpose of the royalty fees is to
regulate the flow of fuel to and from the CSEZ. Such being its main purpose, and revenue
(if any) just an incidental product, the imposition cannot be considered a tax. It is their
position that the regulation is a valid exercise of police power since it is aimed at
promoting the general welfare of the public. They claim that being the administrator of the
CSEZ, CDC is responsible for the safe distribution of fuel products inside the CSEZ. 23
The petition has no merit.
344
In distinguishing tax and regulation as a form of police power, the determining factor is
the purpose of the implemented measure. If the purpose is primarily to raise revenue,
then it will be deemed a tax even though the measure results in some form of regulation.
On the other hand, if the purpose is primarily to regulate, then it is deemed a regulation
and an exercise of the police power of the state, even though incidentally, revenue is
generated. Thus, in Gerochi v. Department of Energy, 24 the Court stated:
The conservative and pivotal distinction between these two (2) powers rests in the
purpose for which the charge is made. If generation of revenue is the primary purpose
and regulation is merely incidental, the imposition is a tax; but if regulation is the primary
purpose, the fact that revenue is incidentally raised does not make the imposition a tax.
In the case at bar, we hold that the subject royalty fee was imposed primarily for regulatory
purposes, and not for the generation of income or profits as petitioner claims. The Policy
Guidelines on the Movement of Petroleum Fuel to and from the Clark Special Economic
Zone 25 provides: EDcICT
DECLARATION OF POLICY
It is hereby declared the policy of CDC to develop and maintain the Clark Special
Economic Zone (CSEZ) as a highly secured zone free from threats of any kind, which
could possibly endanger the lives and properties of locators, would-be investors, visitors,
and employees.
It is also declared the policy of CDC to operate and manage the CSEZ as a separate
customs territory ensuring free flow or movement of goods and capital within, into and
exported out of the CSEZ. 26 (Emphasis supplied.)
From the foregoing, it can be gleaned that the Policy Guidelines was issued, first and
foremost, to ensure the safety, security, and good condition of the petroleum fuel industry
within the CSEZ. The questioned royalty fees form part of the regulatory framework to
ensure "free flow or movement" of petroleum fuel to and from the CSEZ. The fact that
respondents have the exclusive right to distribute and market petroleum products within
CSEZ pursuant to its JVA with SBMA and CSBTI does not diminish the regulatory
purpose of the royalty fee for fuel products supplied by petitioner to its client at the CSEZ.
As pointed out by the respondents in their Comment, from the time the JVA took effect
up to the time CDC implemented its Policy Guidelines on the Movement of Petroleum
Fuel to and from the CSEZ, suppliers/distributors were allowed to bring in petroleum
products inside CSEZ without any charge at all. But this arrangement clearly negates
CDC's mandate under the JVA as exclusive distributor of CSBTI's fuel products within
CSEZ and respondents' ownership of the Subic-Clark Pipeline. 27 On this score,
respondents were justified in charging royalty fees on fuel delivered by outside suppliers.
However, it was erroneous for petitioner to argue that such exclusive right of respondent
CDC to market and distribute fuel inside CSEZ is the sole basis of the royalty fees
imposed under the Policy Guidelines. Being the administrator of CSEZ, the responsibility
of ensuring the safe, efficient and orderly distribution of fuel products within the Zone falls
on CDC. Addressing specific concerns demanded by the nature of goods or products
involved is encompassed in the range of services which respondent CDC is expected to
provide under the law, in pursuance of its general power of supervision and control over
the movement of all supplies and equipment into the CSEZ.
Section 2 of Executive Order No. 80 28 provides:
SEC. 2. Powers and Functions of the Clark Development Corporation. The BCDA, as
the incorporator and holding company of its Clark subsidiary, shall determine the powers
and functions of the CDC. Pursuant to Section 15 of RA 7227, the CDC shall have the
specific powers of the Export Processing Zone Authority as provided for in Section 4 of
Presidential Decree No. 66 (1972) as amended. IHSTDE
Among those specific powers granted to CDC under Section 4 of Presidential Decree No.
66 are:
345
(a) To operate, administer and manage the export processing zone established in the
Port of Mariveles, Bataan, and such other export processing zones as may be established
under this Decree; to construct, acquire, own, lease, operate and maintain infrastructure
facilities, factory building, warehouses, dams, reservoir, water distribution, electric light
and power system, telecommunications and transportation, or such other facilities and
services necessary or useful in the conduct of commerce or in the attainment of the
purposes and objectives of this Decree;
xxx xxx xxx
(g) To fix, assess and collect storage charges and fees, including rentals for the lease,
use or occupancy of lands, buildings, structure, warehouses, facilities and other
properties owned and administered by the Authority; and to fix and collect the fees and
charges for the issuance of permits, licenses and the rendering of services not
enumerated herein, the provisions of law to the contrary notwithstanding;
(h) For the due and effective exercise of the powers conferred by law and to the extend
(sic) [extent] requisite therefor, to exercise exclusive jurisdiction and sole police authority
over all areas owned or administered by the Authority. For this purpose, the Authority
shall have supervision and control over the bringing in or taking out of the Zone, including
the movement therein, of all cargoes, wares, articles, machineries, equipment, supplies
or merchandise of every type and description;
xxx xxx xxx (Emphasis supplied.)
In relation to the regulatory purpose of the imposed fees, this Court in Progressive
Development Corporation v. Quezon City, 29 stated that ". . . the imposition questioned
must relate to an occupation or activity that so engages the public interest in health,
morals, safety and development as to require regulation for the protection and promotion
of such public interest; the imposition must also bear a reasonable relation to the probable
expenses of regulation, taking into account not only the costs of direct regulation but also
its incidental consequences as well."
In the case at bar, there can be no doubt that the oil industry is greatly imbued with public
interest as it vitally affects the general welfare. 30 In addition, fuel is a highly combustible
product which, if left unchecked, poses a serious threat to life and property. Also, the
reasonable relation between the royalty fees imposed on a "per liter" basis and the
regulation sought to be attained is that the higher the volume of fuel entering CSEZ, the
greater the extent and frequency of supervision and inspection required to ensure safety,
security, and order within the Zone. aEACcS
Respondents submit that increased administrative costs were triggered by security risks
that have recently emerged, such as terrorist strikes in airlines and military/government
facilities. Explaining the regulatory feature of the charges imposed under the Policy
Guidelines, then BCDA President Rufo Colayco in his letter dated March 3, 2004
addressed to petitioner's Chief Corporate Counsel, stressed:
The need for regulation is more evident in the light of the 9/11 tragedy considering that
what is being moved from one location to another are highly combustible fuel products
that could cause loss of lives and damage to properties, hence, a set of guidelines was
promulgated on 28 June 2002. It must be emphasized also that greater security measure
must be observed in the CSEZ because of the presence of the airport which is a vital
public infrastructure.
We are therefore constrained to sustain the imposition of the royalty fees on deliveries of
CPI's fuel products to Nanox Philippines. 31
As to the issue of reasonableness of the amount of the fees, we hold that no evidence
was adduced by the petitioner to show that the fees imposed are unreasonable.
346
Administrative issuances have the force and effect of law. 32 They benefit from the same
presumption of validity and constitutionality enjoyed by statutes. These two precepts
place a heavy burden upon any party assailing governmental regulations. 33 Petitioner's
plain allegations are simply not enough to overcome the presumption of validity and
reasonableness of the subject imposition.
WHEREFORE, the petition is DENIED for lack of merit and the Decision of the Court of
Appeals dated November 30, 2005 in CA-G.R. SP No. 87117 is hereby AFFIRMED.
With costs against the petitioner. THAICD
SO ORDERED.
Carpio Morales, Peralta, * Bersamin and Sereno, JJ., concur.
||| (Chevron Philippines, Inc. v. Bases Conversion Development Authority, G.R. No.
173863, [September 15, 2010], 645 PHIL 84-96)
6. ESPINA VS. ZAMORA 631 SCRA 17 (2010)
EN BANC
[G.R. No. 143855. September 21, 2010.]
REPRESENTATIVES GERARDO S. ESPINA, ORLANDO FUA, JR., PROSPERO
AMATONG, ROBERT ACE S. BARBERS, RAUL M. GONZALES, PROSPERO PICHAY,
JUAN MIGUEL ZUBIRI and FRANKLIN BAUTISTA, petitioners, vs. HON. RONALDO
ZAMORA, JR. (Executive Secretary), HON. MAR ROXAS (Secretary of Trade and
Industry), HON. FELIPE MEDALLA (Secretary of National Economic and Development
Authority), GOV. RAFAEL BUENAVENTURA (Bangko Sentral ng Pilipinas) and HON.
LILIA BAUTISTA (Chairman, Securities and Exchange Commission), respondents.
DECISION
ABAD, J p:
This case calls upon the Court to exercise its power of judicial review and determine the
constitutionality of the Retail Trade Liberalization Act of 2000, which has been assailed
as in breach of the constitutional mandate for the development of a self-reliant and
independent national economy effectively controlled by Filipinos.
The Facts and the Case
On March 7, 2000 President Joseph E. Estrada signed into law Republic Act (R.A.) 8762,
also known as the Retail Trade Liberalization Act of 2000. It expressly repealed R.A.
1180, which absolutely prohibited foreign nationals from engaging in the retail trade
business. R.A. 8762 now allows them to do so under four categories:
Category A Less than US$2,500,000.00
Exclusively for Filipino citizens
and corporations wholly owned by
Filipino citizens.
Category B US$2,500,000.00 up but less
For the first two years of R.A.
than US$7,500,000.00
8762's effectivity, foreign
ownership is allowed up to 60%.
After the two-year period, 100%
foreign equity shall be allowed.
Category C US$7,500,000.00 or more May be wholly owned by
foreigners. Foreign investments
for establishing a store in
Categories B and C shall not be
less than the equivalent in
Philippine Pesos of
US$830,000.00.
347
Category D US$250,000.00 per store of

May be wholly owned by
foreign enterprises specializing foreigners.
in high-end or luxury products
R.A. 8762 also allows natural-born Filipino citizens, who had lost their citizenship and
now reside in the Philippines, to engage in the retail trade business with the same rights
as Filipino citizens. CIAacS
On October 11, 2000 petitioners Magtanggol T. Gunigundo I, Michael T. Defensor,
Gerardo S. Espina, Benjamin S. Lim, Orlando Fua, Jr., Prospero Amatong, Sergio
Apostol, Robert Ace S. Barbers, Enrique Garcia, Jr., Raul M. Gonzales, Jaime Jacob,
Apolinario Lozada, Jr., Leonardo Montemayor, Ma. Elena Palma-Gil, Prospero
Pichay, Juan Miguel Zubiri and Franklin Bautista, all members of the House of
Representatives, filed the present petition, assailing the constitutionality of R.A. 8762 on
the following grounds:
First, the law runs afoul of Sections 9, 19, and 20 of Article II of the Constitution which
enjoins the State to place the national economy under the control of Filipinos to achieve
equal distribution of opportunities, promote industrialization and full employment, and
protect Filipino enterprise against unfair competition and trade policies.
Second, the implementation of R.A. 8762 would lead to alien control of the retail trade,
which taken together with alien dominance of other areas of business, would result in the
loss of effective Filipino control of the economy.
Third, foreign retailers like Walmart and K-Mart would crush Filipino retailers and sari-sari
store vendors, destroy self-employment, and bring about more unemployment.
Fourth, the World Bank-International Monetary Fund had improperly imposed the
passage of R.A. 8762 on the government as a condition for the release of certain loans.
Fifth, there is a clear and present danger that the law would promote monopolies or
combinations in restraint of trade.
Respondents Executive Secretary Ronaldo Zamora, Jr., Trade and Industry Secretary
Mar Roxas, National Economic and Development Authority (NEDA) Secretary Felipe
Medalla, Bangko Sentral ng Pilipinas Gov. Rafael Buenaventura, and Securities and
Exchange Commission Chairman Lilia Bautista countered that:
First, petitioners have no legal standing to file the petition. They cannot invoke the fact
that they are taxpayers since R.A. 8762 does not involve the disbursement of public funds.
Nor can they invoke the fact that they are members of Congress since they made no claim
that the law infringes on their right as legislators.
Second, the petition does not involve any justiciable controversy. Petitioners of course
claim that, as members of Congress, they represent the small retail vendors in their
respective districts but the petition does not allege that the subject law violates the rights
of those vendors.
Third, petitioners have failed to overcome the presumption of constitutionality of R.A.
8762. Indeed, they could not specify how the new law violates the constitutional
provisions they cite. Sections 9, 19, and 20 of Article II of the Constitution are not selfexecuting provisions that are judicially demandable.
Fourth, the Constitution mandates the regulation but not the prohibition of foreign
investments. It directs Congress to reserve to Filipino citizens certain areas of
investments upon the recommendation of the NEDA and when the national interest so
dictates. But the Constitution leaves to the discretion of the Congress whether or not to
make such reservation. It does not prohibit Congress from enacting laws allowing the
entry of foreigners into certain industries not reserved by the Constitution to Filipino
citizens.
The Issues Presented
Simplified, the case presents two issues:
1. Whether or not petitioner lawmakers have the legal standing to challenge the
constitutionality of R.A. 8762; and
2. Whether or not R.A. 8762 is unconstitutional.
348
The Court's Ruling

One. The long settled rule is that he who challenges the validity of a law must have a
standing to do so. 1 Legal standing or locus standi refers to the right of a party to come
to a court of justice and make such a challenge. More particularly, standing refers to his
personal and substantial interest in that he has suffered or will suffer direct injury as a
result of the passage of that law. 2 To put it another way, he must show that he has been
or is about to be denied some right or privilege to which he is lawfully entitled or that he
is about to be subjected to some burdens or penalties by reason of the law he complains
of. 3
Here, there is no clear showing that the implementation of the Retail Trade Liberalization
Act prejudices petitioners or inflicts damages on them, either as taxpayers 4 or as
legislators. 5 Still the Court will resolve the question they raise since the rule on standing
can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators
when as in this case the public interest so requires or the matter is of transcendental
importance, of overarching significance to society, or of paramount public interest. 6
EHCDSI
Two. Petitioners mainly argue that R.A. 8762 violates the mandate of the 1987
Constitution for the State to develop a self-reliant and independent national economy
effectively controlled by Filipinos. They invoke the provisions of the Declaration of
Principles and State Policies under Article II of the 1987 Constitution, which read as
follows:
Section 9. The State shall promote a just and dynamic social order that will ensure the
prosperity and independence of the nation and free the people from poverty through
policies that provide adequate social services, promote full employment, a rising standard
of living, and an improved quality of life for all.
xxx xxx xxx
Section 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.
Section 20. The State recognizes the indispensable role of the private sector, encourages
private enterprise, and provides incentives to needed investments.
Petitioners also invoke the provisions of the National Economy and Patrimony under
Article XII of the 1987 Constitution, which reads:
Section 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by such
citizens, or such higher percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will encourage the formation and
operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its national
jurisdiction and in accordance with its national goals and priorities.
xxx xxx xxx
Section 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.
Section 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.
349
But, as the Court explained in Taada v. Angara, 7 the provisions of Article II of the 1987
Constitution, the declarations of principles and state policies, are not self-executing.
Legislative failure to pursue such policies cannot give rise to a cause of action in the
courts.
The Court further explained in Taada that Article XII of the 1987 Constitution lays down
the ideals of economic nationalism: (1) by expressing preference in favor of qualified
Filipinos in the grant of rights, privileges and concessions covering the national economy
and patrimony and in the use of Filipino labor, domestic materials and locally-produced
goods; (2) by mandating the State to adopt measures that help make them competitive;
and (3) by requiring the State to develop a self-reliant and independent national economy
effectively controlled by Filipinos. 8
In other words, while Section 19, Article II of the 1987 Constitution requires the
development of a self-reliant and independent national economy effectively controlled by
Filipino entrepreneurs, it does not impose a policy of Filipino monopoly of the economic
environment. The objective is simply to prohibit foreign powers or interests from
maneuvering our economic policies and ensure that Filipinos are given preference in all
areas of development.
Indeed, the 1987 Constitution takes into account the realities of the outside world as it
requires the pursuit of a trade policy that serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of equality and reciprocity; and speaks of
industries which are competitive in both domestic and foreign markets as well as of the
protection of Filipino enterprises against unfair foreign competition and trade practices.
Thus, while the Constitution mandates a bias in favor of Filipino goods, services, labor
and enterprises, it also recognizes the need for business exchange with the rest of the
world on the bases of equality and reciprocity and limits protection of Filipino enterprises
only against foreign competition and trade practices that are unfair. 9 cEATSI
In other words, the 1987 Constitution does not rule out the entry of foreign investments,
goods, and services. While it does not encourage their unlimited entry into the country, it
does not prohibit them either. In fact, it allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition that is unfair. 10 The key, as in all
economies in the world, is to strike a balance between protecting local businesses and
allowing the entry of foreign investments and services.
More importantly, Section 10, Article XII of the 1987 Constitution gives Congress the
discretion to reserve to Filipinos certain areas of investments upon the recommendation
of the NEDA and when the national interest requires. Thus, Congress can determine what
policy to pass and when to pass it depending on the economic exigencies. It can enact
laws allowing the entry of foreigners into certain industries not reserved by the
Constitution to Filipino citizens. In this case, Congress has decided to open certain areas
of the retail trade business to foreign investments instead of reserving them exclusively
to Filipino citizens. The NEDA has not opposed such policy.
The control and regulation of trade in the interest of the public welfare is of course an
exercise of the police power of the State. A person's right to property, whether he is a
Filipino citizen or foreign national, cannot be taken from him without due process of law.
In 1954, Congress enacted the Retail Trade Nationalization Act or R.A. 1180 that restricts
the retail business to Filipino citizens. In denying the petition assailing the validity of such
Act for violation of the foreigner's right to substantive due process of law, the Supreme
Court held that the law constituted a valid exercise of police power. 11 The State had an
interest in preventing alien control of the retail trade and R.A. 1180 was reasonably related
to that purpose. That law is not arbitrary.
Here, to the extent that R.A. 8762, the Retail Trade Liberalization Act, lessens the restraint
on the foreigners' right to property or to engage in an ordinarily lawful business, it cannot
be said that the law amounts to a denial of the Filipinos' right to property and to due
process of law. Filipinos continue to have the right to engage in the kinds of retail business
to which the law in question has permitted the entry of foreign investors.
Certainly, it is not within the province of the Court to inquire into the wisdom of R.A. 8762
save when it blatantly violates the Constitution. But as the Court has said, there is no
350
showing that the law has contravened any constitutional mandate. The Court is not
convinced that the implementation of R.A. 8762 would eventually lead to alien control of
the retail trade business. Petitioners have not mustered any concrete and strong
argument to support its thesis. The law itself has provided strict safeguards on foreign
participation in that business. Thus
First, aliens can only engage in retail trade business subject to the categories aboveenumerated; Second, only nationals from, or juridical entities formed or incorporated in
countries which allow the entry of Filipino retailers shall be allowed to engage in retail
trade business; and Third, qualified foreign retailers shall not be allowed to engage in
certain retailing activities outside their accredited stores through the use of mobile or
rolling stores or carts, the use of sales representatives, door-to-door selling, restaurants
and sari-sari stores and such other similar retailing activities.
In sum, petitioners have not shown how the retail trade liberalization has prejudiced and
can prejudice the local small and medium enterprises since its implementation about a
decade ago.
WHEREFORE, the Court DISMISSES the petition for lack of merit. No costs.
SO ORDERED. ScHADI
Corona, C.J., Carpio, Carpio Morales, Peralta, Bersamin, Del Castillo, Villarama, Jr.and
Perez, JJ., concur.
Velasco, Jr., Nachura, Leonardo-de Castro, Brion and Mendoza, JJ., are on official leave.
Sereno, J., is on leave.
||| (Espina v. Zamora, Jr., G.R. No. 143855, [September 21, 2010], 645 PHIL 269-281)
7. FERNANDO VS. ST. SCHOLASTICA 693 SCRA 141 (2013)
EN BANC
[G.R. No. 161107. March 12, 2013.]
HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of Marikina City,
JOSEPHINE C. EVANGELISTA, in her capacity as Chief, Permit Division, Office of the
City Engineer, and ALFONSO ESPIRITU, in his capacity as City Engineer of Marikina
City, petitioners, vs. ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S
ACADEMY-MARIKINA, INC., respondents.
DECISION
MENDOZA, J p:
Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court,
which seeks to set aside the December 1, 2003 Decision 1 of the Court of Appeals (CA)
in CA-G.R. SP No. 75691.
The Facts
Respondents St. Scholastica's College (SSC) and St. Scholastica's Academy-Marikina,
Inc. (SSA-Marikina) are educational institutions organized under the laws of the Republic
of the Philippines, with principal offices and business addresses at Leon Guinto Street,
Malate, Manila, and at West Drive, Marikina Heights, Marikina City, respectively. 2
Respondent SSC is the owner of four (4) parcels of land measuring a total of 56,306.80
square meters, located in Marikina Heights and covered by Transfer Certificate Title
(TCT) No. 91537. Located within the property are SSA-Marikina, the residence of the
351
sisters of the Benedictine Order, the formation house of the novices, and the retirement
house for the elderly sisters. The property is enclosed by a tall concrete perimeter fence
built some thirty (30) years ago. Abutting the fence along the West Drive are buildings,
facilities, and other improvements. 3
The petitioners are the officials of the City Government of Marikina. On September 30,
1994, the Sangguniang Panlungsod of Marikina City enacted Ordinance No. 192, 4
entitled "Regulating the Construction of Fences and Walls in the Municipality of Marikina."
In 1995 and 1998, Ordinance Nos. 217 5 and 200 6 were enacted to amend Sections 7
and 5, respectively. Ordinance No. 192, as amended, is reproduced hereunder, as
follows: ITSacC
ORDINANCE No. 192
Series of 1994
ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND WALLS IN THE
MUNICIPALITY OF MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise known as the Local
Government Code of 1991 empowers the Sangguniang Bayan as the local legislative
body of the municipality to ". . . Prescribe reasonable limits and restraints on the use of
property within the jurisdiction of the municipality, . . .";
WHEREAS the effort of the municipality to accelerate its economic and physical
development, coupled with urbanization and modernization, makes imperative the
adoption of an ordinance which shall embody up-to-date and modern technical design in
the construction of fences of residential, commercial and industrial buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known as the National Building
Code of the Philippines, does not adequately provide technical guidelines for the
construction of fences, in terms of design, construction, and criteria;
WHEREAS, the adoption of such technical standards shall provide more efficient and
effective enforcement of laws on public safety and security;
WHEREAS, it has occurred in not just a few occasions that high fences or walls did not
actually discourage but, in fact, even protected burglars, robbers, and other lawless
elements from the view of outsiders once they have gained ingress into these walls,
hence, fences not necessarily providing security, but becomes itself a "security problem";
WHEREAS, to discourage, suppress or prevent the concealment of prohibited or unlawful
acts earlier enumerated, and as guardian of the people of Marikina, the municipal
government seeks to enact and implement rules and ordinances to protect and promote
the health, safety and morals of its constituents; ITaCEc
WHEREAS, consistent too, with the "Clean and Green Program" of the government,
lowering of fences and walls shall encourage people to plant more trees and ornamental
plants in their yards, and when visible, such trees and ornamental plants are expected to
create an aura of a clean, green and beautiful environment for Marikeos;
WHEREAS, high fences are unsightly that, in the past, people planted on sidewalks to
"beautify" the faade of their residences but, however, become hazards and
obstructions to pedestrians;
352
WHEREAS, high and solid walls as fences are considered "un-neighborly" preventing
community members to easily communicate and socialize and deemed to create "boxedin" mentality among the populace;
WHEREAS, to gather as wide-range of opinions and comments on this proposal, and as
a requirement of the Local Government Code of 1991 (R.A. 7160), the Sangguniang
Bayan of Marikina invited presidents or officers of homeowners associations, and
commercial and industrial establishments in Marikina to two public hearings held on July
28, 1994 and August 25, 1994;
WHEREAS, the rationale and mechanics of the proposed ordinance were fully presented
to the attendees and no vehement objection was presented to the municipal government;
NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUNIANG BAYAN OF
MARIKINA IN SESSION DULY ASSEMBLED:
Section 1. Coverage. This Ordinance regulates the construction of all fences, walls
and gates on lots classified or used for residential, commercial, industrial, or special
purposes.
Section 2. Definition of Terms.
a. Front Yard refers to the area of the lot fronting a street, alley or public thoroughfare.
b. Back Yard the part of the lot at the rear of the structure constructed therein. AcDaEH
c. Open fence type of fence which allows a view of "thru-see" of the inner yard and the
improvements therein. (Examples: wrought iron, wooden lattice, cyclone wire)
d. Front gate refers to the gate which serves as a passage of persons or vehicles
fronting a street, alley, or public thoroughfare.
Section 3. The standard height of fences or walls allowed under this ordinance are as
follows:
(1) Fences on the front yard shall be no more than one (1) meter in height. Fences in
excess of one (1) meter shall be of an open fence type, at least eighty percent (80%) seethru; and
(2) Fences on the side and back yard shall be in accordance with the provisions of
P.D. 1096 otherwise known as the National Building Code.
Section 4. No fence of any kind shall be allowed in areas specifically reserved or classified
as parks.
Section 5. In no case shall walls and fences be built within the five (5) meter parking area
allowance located between the front monument line and the building line of commercial
and industrial establishments and educational and religious institutions. 7
Section 6. Exemption.
(1) The Ordinance does not cover perimeter walls of residential subdivisions.
(2) When public safety or public welfare requires, the Sangguniang Bayan may allow the
construction and/or maintenance of walls higher than as prescribed herein and shall issue
a special permit or exemption. SICDAa
353
Section 7. Transitory Provision. Real property owners whose existing fences and walls
do not conform to the specifications herein are allowed adequate period of time from the
passage of this Ordinance within which to conform, as follows:
(1) Residential houses eight (8) years
(2) Commercial establishments five (5) years
(3) Industrial establishments three (3) years
(4) Educational institutions five (5) years 8
(public and privately owned)
Section 8. Penalty. Walls found not conforming to the provisions of this Ordinance shall
be demolished by the municipal government at the expense of the owner of the lot or
structure.
Section 9. The Municipal Engineering Office is tasked to strictly implement this ordinance,
including the issuance of the necessary implementing guidelines, issuance of building
and fencing permits, and demolition of non-conforming walls at the lapse of the grace
period herein provided.
Section 10. Repealing Clause. All existing Ordinances and Resolutions, Rules and
Regulations inconsistent with the foregoing provisions are hereby repealed, amended or
modified.
Section 11. Separability Clause. If for any reason or reasons, local executive orders,
rules and regulations or parts thereof in conflict with this Ordinance are hereby repealed
and/or modified accordingly.
Section 12. Effectivity. This ordinance takes effect after publication. THcaDA
APPROVED: September 30, 1994
(Emphases supplied)
On April 2, 2000, the City Government of Marikina sent a letter to the respondents
ordering them to demolish and replace the fence of their Marikina property to make it 80%
see-thru, and, at the same time, to move it back about six (6) meters to provide parking
space for vehicles to park. 9 On April 26, 2000, the respondents requested for an
extension of time to comply with the directive. 10 In response, the petitioners, through
then City Mayor Bayani F. Fernando, insisted on the enforcement of the subject
ordinance.
Not in conformity, the respondents filed a petition for prohibition with an application for a
writ of preliminary injunction and temporary restraining order before the Regional Trial
Court, Marikina, Branch 273 (RTC), docketed as SCA Case No. 2000-381-MK. 11
The respondents argued that the petitioners were acting in excess of jurisdiction in
enforcing Ordinance No. 192, asserting that such contravenes Section 1, Article III of the
1987 Constitution. That demolishing their fence and constructing it six (6) meters back
would result in the loss of at least 1,808.34 square meters, worth about P9,041,700.00,
along West Drive, and at least 1,954.02 square meters, worth roughly P9,770,100.00,
along East Drive. It would also result in the destruction of the garbage house, covered
walk, electric house, storage house, comfort rooms, guards' room, guards' post, waiting
area for visitors, waiting area for students, Blessed Virgin Shrine, P.E. area, and the multipurpose hall, resulting in the permanent loss of their beneficial use. The respondents,
354
thus, asserted that the implementation of the ordinance on their property would be
tantamount to an appropriation of property without due process of law; and that the
petitioners could only appropriate a portion of their property through eminent domain.
They also pointed out that the goal of the provisions to deter lawless elements and
criminality did not exist as the solid concrete walls of the school had served as sufficient
protection for many years. 12 aTEAHc
The petitioners, on the other hand, countered that the ordinance was a valid exercise of
police power, by virtue of which, they could restrain property rights for the protection of
public safety, health, morals, or the promotion of public convenience and general
prosperity. 13
On June 30, 2000, the RTC issued a writ of preliminary injunction, enjoining the petitioners
from implementing the demolition of the fence at SSC's Marikina property. 14
Ruling of the RTC
On the merits, the RTC rendered a Decision, 15 dated October 2, 2002, granting the
petition and ordering the issuance of a writ of prohibition commanding the petitioners to
permanently desist from enforcing or implementing Ordinance No. 192 on the
respondents' property.
The RTC agreed with the respondents that the order of the petitioners to demolish the
fence at the SSC property in Marikina and to move it back six (6) meters would amount
to an appropriation of property which could only be done through the exercise of eminent
domain. It held that the petitioners could not take the respondents' property under the
guise of police power to evade the payment of just compensation.
It did not give weight to the petitioners' contention that the parking space was for the
benefit of the students and patrons of SSA-Marikina, considering that the respondents
were already providing for sufficient parking in compliance with the standards under Rule
XIX of the National Building Code.
It further found that the 80% see-thru fence requirement could run counter to the
respondents' right to privacy, considering that the property also served as a residence of
the Benedictine sisters, who were entitled to some sense of privacy in their affairs. It also
found that the respondents were able to prove that the danger to security had no basis in
their case. Moreover, it held that the purpose of beautification could not be used to justify
the exercise of police power.
It also observed that Section 7 of Ordinance No. 192, as amended, provided for
retroactive application. It held, however, that such retroactive effect should not impair the
respondents' vested substantive rights over the perimeter walls, the six-meter strips of
land along the walls, and the building, structures, facilities, and improvements, which
would be destroyed by the demolition of the walls and the seizure of the strips of land.
CaASIc
The RTC also found untenable the petitioners' argument that Ordinance No. 192 was a
remedial or curative statute intended to correct the defects of buildings and structures,
which were brought about by the absence or insufficiency of laws. It ruled that the assailed
ordinance was neither remedial nor curative in nature, considering that at the time the
respondents' perimeter wall was built, the same was valid and legal, and the ordinance
did not refer to any previous legislation that it sought to correct.
The RTC noted that the petitioners could still take action to expropriate the subject
property through eminent domain.
The RTC, thus, disposed:
355
WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued

commanding the respondents to permanently desist from enforcing or implementing
Ordinance No. 192, Series of 1994, as amended, on petitioners' property in question
located at Marikina Heights, Marikina, Metro Manila.
SO ORDERED. 16
Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the petitioners' appeal and affirmed
the RTC decision.
The CA reasoned out that the objectives stated in Ordinance No. 192 did not justify the
exercise of police power, as it did not only seek to regulate, but also involved the taking
of the respondents' property without due process of law. The respondents were bound to
lose an unquantifiable sense of security, the beneficial use of their structures, and a total
of 3,762.36 square meters of property. It, thus, ruled that the assailed ordinance could
not be upheld as valid as it clearly invaded the personal and property rights of the
respondents and "[f]or being unreasonable, and undue restraint of trade." 17 cDCEIA
It noted that although the petitioners complied with procedural due process in enacting
Ordinance No. 192, they failed to comply with substantive due process. Hence, the failure
of the respondents to attend the public hearings in order to raise objections did not amount
to a waiver of their right to question the validity of the ordinance.
The CA also shot down the argument that the five-meter setback provision for parking
was a legal easement, the use and ownership of which would remain with, and inure to,
the benefit of the respondents for whom the easement was primarily intended. It found
that the real intent of the setback provision was to make the parking space free for use
by the public, considering that such would cease to be for the exclusive use of the school
and its students as it would be situated outside school premises and beyond the school
administration's control.
In affirming the RTC ruling that the ordinance was not a curative statute, the CA found
that the petitioner failed to point out any irregularity or invalidity in the provisions of the
National Building Code that required correction or cure. It noted that any correction in the
Code should be properly undertaken by the Congress and not by the City Council of
Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the instant appeal is DENIED. The
October 2, 2002 Decision and the January 13, 2003 Order of the Regional Trial Court
(RTC) of Marikina City, Branch 273, granting petitioners-appellees' petition for Prohibition
in SCA Case No. 2000-381-MK are hereby AFFIRMED.
SO ORDERED. 18
Aggrieved by the decision of the CA, the petitioners are now before this Court presenting
the following: CHEIcS
ASSIGNMENT OF ERRORS
356
1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

DECLARING THAT CITY ORDINANCE NO. 192, SERIES OF 1994 IS NOT A VALID
EXERCISE OF POLICE POWER;
2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN RULING
THAT THE AFOREMENTIONED ORDINANCE IS AN EXERCISE OF THE CITY OF THE
POWER OF EMINENT DOMAIN;
3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
DECLARING THAT THE CITY VIOLATED THE DUE PROCESS CLAUSE IN
IMPLEMENTING ORDINANCE NO. 192, SERIES OF 1994; AND
4. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN RULING
THAT THE ABOVE-MENTIONED ORDINANCE CANNOT BE GIVEN RETROACTIVE
APPLICATION. 19
In this case, the petitioners admit that Section 5 of the assailed ordinance, pertaining to
the five-meter setback requirement is, as held by the lower courts, invalid. 20
Nonetheless, the petitioners argue that such invalidity was subsequently cured by Zoning
Ordinance No. 303, series of 2000. They also contend that Section 3, relating to the 80%
see-thru fence requirement, must be complied with, as it remains to be valid.
Ruling of the Court
The ultimate question before the Court is whether Sections 3.1 and 5 of Ordinance No.
192 are valid exercises of police power by the City Government of Marikina. DCASIT
"Police power is the plenary power vested in the legislature to make statutes and
ordinances to promote the health, morals, peace, education, good order or safety and
general welfare of the people." 21 The State, through the legislature, has delegated the
exercise of police power to local government units, as agencies of the State. This
delegation of police power is embodied in Section 16 22 of the Local Government Code
of 1991 (R.A. No. 7160), known as the General Welfare Clause, 23 which has two
branches. "The first, known as the general legislative power, authorizes the municipal
council to enact ordinances and make regulations not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred upon the
municipal council by law. The second, known as the police power proper, authorizes the
municipality to enact ordinances as may be necessary and proper for the health and
safety, prosperity, morals, peace, good order, comfort, and convenience of the
municipality and its inhabitants, and for the protection of their property." 24
White Light Corporation v. City of Manila, 25 discusses the test of a valid ordinance:
The test of a valid ordinance is well established. A long line of decisions including City of
Manila has held that for an ordinance to be valid, it must not only be within the corporate
powers of the local government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive requirements: (1)
must not contravene the Constitution or any statute; (2) must not be unfair or oppressive;
(3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not be unreasonable. 26
Ordinance No. 192 was passed by the City Council of Marikina in the apparent exercise
of its police power. To successfully invoke the exercise of police power as the rationale
for the enactment of an ordinance and to free it from the imputation of constitutional
infirmity, two tests have been used by the Court the rational relationship test and the
strict scrutiny test: ASEcHI
357
We ourselves have often applied the rational basis test mainly in analysis of equal
protection challenges. Using the rational basis examination, laws or ordinances are
upheld if they rationally further a legitimate governmental interest. Under intermediate
review, governmental interest is extensively examined and the availability of less
restrictive measures is considered. Applying strict scrutiny, the focus is on the presence
of compelling, rather than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest. 27
Even without going to a discussion of the strict scrutiny test, Ordinance No. 192, series
of 1994 must be struck down for not being reasonably necessary to accomplish the City's
purpose. More importantly, it is oppressive of private rights.
Under the rational relationship test, an ordinance must pass the following requisites as
discussed in Social Justice Society (SJS) v. Atienza, Jr.: 28
As with the State, local governments may be considered as having properly exercised
their police power only if the following requisites are met: (1) the interests of the public
generally, as distinguished from those of a particular class, require its exercise and (2)
the means employed are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals. In short, there must be a concurrence of a
lawful subject and lawful method. 29
Lacking a concurrence of these two requisites, the police power measure shall be struck
down as an arbitrary intrusion into private rights and a violation of the due process clause.
30
Section 3.1 and 5 of the assailed ordinance are pertinent to the issue at hand, to wit:
cDAISC
Section 3. The standard height of fences of walls allowed under this ordinance are as
follows:
(1) Fences on the front yard shall be no more than one (1) meter in height. Fences in
excess of one (1) meter shall be an open fence type, at least eighty percent (80%) seethru;
xxx xxx xxx
Section 5.In no case shall walls and fences be built within the five (5) meter parking area
allowance located between the front monument line and the building line of commercial
and industrial establishments and educational and religious institutions.
The respondents, thus, sought to prohibit the petitioners from requiring them to (1)
demolish their existing concrete wall, (2) build a fence (in excess of one meter) which
must be 80% see-thru, and (3) build the said fence six meters back in order to provide a
parking area.
Setback Requirement
The Court first turns its attention to Section 5 which requires the five-meter setback of the
fence to provide for a parking area. The petitioners initially argued that the ownership of
the parking area to be created would remain with the respondents as it would primarily
be for the use of its students and faculty, and that its use by the public on non-school
days would only be incidental. In their Reply, however, the petitioners admitted that
Section 5 was, in fact, invalid for being repugnant to the Constitution. 31
The Court agrees with the latter position.
358
The Court joins the CA in finding that the real intent of the setback requirement was to
make the parking space free for use by the public, considering that it would no longer be
for the exclusive use of the respondents as it would also be available for use by the
general public. Section 9 of Article III of the 1987 Constitution, a provision on eminent
domain, provides that private property shall not be taken for public use without just
compensation. IDCHTE
The petitioners cannot justify the setback by arguing that the ownership of the property
will continue to remain with the respondents. It is a settled rule that neither the acquisition
of title nor the total destruction of value is essential to taking. In fact, it is usually in cases
where the title remains with the private owner that inquiry should be made to determine
whether the impairment of a property is merely regulated or amounts to a compensable
taking. 32 The Court is of the view that the implementation of the setback requirement
would be tantamount to a taking of a total of 3,762.36 square meters of the respondents'
private property for public use without just compensation, in contravention to the
Constitution.
Anent the objectives of prevention of concealment of unlawful acts and "unneighborliness," it is obvious that providing for a parking area has no logical connection
to, and is not reasonably necessary for, the accomplishment of these goals.
Regarding the beautification purpose of the setback requirement, it has long been settled
that the State may not, under the guise of police power, permanently divest owners of the
beneficial use of their property solely to preserve or enhance the aesthetic appearance
of the community. 33 The Court, thus, finds Section 5 to be unreasonable and oppressive
as it will substantially divest the respondents of the beneficial use of their property solely
for aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192 is invalid.
The petitioners, however, argue that the invalidity of Section 5 was properly cured by
Zoning Ordinance No. 303, 34 Series of 2000, which classified the respondents' property
to be within an institutional zone, under which a five-meter setback has been required.
The petitioners are mistaken. Ordinance No. 303, Series of 2000, has no bearing to the
case at hand. AcSHCD
The Court notes with displeasure that this argument was only raised for the first time on
appeal in this Court in the petitioners' Reply. Considering that Ordinance No. 303 was
enacted on December 20, 2000, the petitioners could very well have raised it in their
defense before the RTC in 2002. The settled rule in this jurisdiction is that a party cannot
change the legal theory of this case under which the controversy was heard and decided
in the trial court. It should be the same theory under which the review on appeal is
conducted. Points of law, theories, issues, and arguments not adequately brought to the
attention of the lower court will not be ordinarily considered by a reviewing court,
inasmuch as they cannot be raised for the first time on appeal. This will be offensive to
the basic rules of fair play, justice, and due process. 35
Furthermore, the two ordinances have completely different purposes and subjects.
Ordinance No. 192 aims to regulate the construction of fences, while Ordinance No. 303
is a zoning ordinance which classifies the city into specific land uses. In fact, the fivemeter setback required by Ordinance No. 303 does not even appear to be for the purpose
of providing a parking area.
By no stretch of the imagination, therefore, can Ordinance No. 303, "cure" Section 5 of
Ordinance No. 192.
In any case, the clear subject of the petition for prohibition filed by the respondents is
Ordinance No. 192 and, as such, the precise issue to be determined is whether the
359
petitioners can be prohibited from enforcing the said ordinance, and no other, against the
respondents.
80% See-Thru Fence Requirement
The petitioners argue that while Section 5 of Ordinance No. 192 may be invalid, Section
3.1 limiting the height of fences to one meter and requiring fences in excess of one meter
to be at least 80% see-thru, should remain valid and enforceable against the respondents.
The Court cannot accommodate the petitioner. HDcaAI
For Section 3.1 to pass the rational relationship test, the petitioners must show the
reasonable relation between the purpose of the police power measure and the means
employed for its accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property will not be permitted to
be arbitrarily invaded. 36
The principal purpose of Section 3.1 is "to discourage, suppress or prevent the
concealment of prohibited or unlawful acts." The ultimate goal of this objective is clearly
the prevention of crime to ensure public safety and security. The means employed by the
petitioners, however, is not reasonably necessary for the accomplishment of this purpose
and is unduly oppressive to private rights.
The petitioners have not adequately shown, and it does not appear obvious to this Court,
that an 80% see-thru fence would provide better protection and a higher level of security,
or serve as a more satisfactory criminal deterrent, than a tall solid concrete wall. It may
even be argued that such exposed premises could entice and tempt would-be criminals
to the property, and that a see-thru fence would be easier to bypass and breach. It also
appears that the respondents' concrete wall has served as more than sufficient protection
over the last 40 years.
As to the beautification purpose of the assailed ordinance, as previously discussed, the
State may not, under the guise of police power, infringe on private rights solely for the
sake of the aesthetic appearance of the community. Similarly, the Court cannot perceive
how a see-thru fence will foster "neighborliness" between members of a community.
Compelling the respondents to construct their fence in accordance with the assailed
ordinance is, thus, a clear encroachment on their right to property, which necessarily
includes their right to decide how best to protect their property.
It also appears that requiring the exposure of their property via a see-thru fence is violative
of their right to privacy, considering that the residence of the Benedictine nuns is also
located within the property. The right to privacy has long been considered a fundamental
right guaranteed by the Constitution that must be protected from intrusion or constraint.
The right to privacy is essentially the right to be let alone, 37 as governmental powers
should stop short of certain intrusions into the personal life of its citizens. 38 It is inherent
in the concept of liberty, enshrined in the Bill of Rights (Article III) in Sections 1, 2, 3 (1),
6, 8, and 17, Article III of the 1987 Constitution. 39 CSaITD
The enforcement of Section 3.1 would, therefore, result in an undue interference with the
respondents' rights to property and privacy. Section 3.1 of Ordinance No. 192 is, thus,
also invalid and cannot be enforced against the respondents.
No Retroactivity
Ordinance No. 217 amended Section 7 of Ordinance No. 192 by including the regulation
of educational institutions which was unintentionally omitted, and giving said educational
institutions five (5) years from the passage of Ordinance No. 192 (and not Ordinance No.
217) to conform to its provisions. 40 The petitioners argued that the amendment could be
360
retroactively applied because the assailed ordinance is a curative statute which is

retroactive in nature.
Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be enforced against
the respondents, it is no longer necessary to rule on the issue of retroactivity. The Court
shall, nevertheless, pass upon the issue for the sake of clarity.
"Curative statutes are enacted to cure defects in a prior law or to validate legal
proceedings which would otherwise be void for want of conformity with certain legal
requirements. They are intended to supply defects, abridge superfluities and curb certain
evils. They are intended to enable persons to carry into effect that which they have
designed or intended, but has failed of expected legal consequence by reason of some
statutory disability or irregularity in their own action. They make valid that which, before
the enactment of the statute was invalid. Their purpose is to give validity to acts done that
would have been invalid under existing laws, as if existing laws have been complied with.
Curative statutes, therefore, by their very essence, are retroactive." 41
The petitioners argue that Ordinance No. 192 is a curative statute as it aims to correct or
cure a defect in the National Building Code, namely, its failure to provide for adequate
guidelines for the construction of fences. They ultimately seek to remedy an insufficiency
in the law. In aiming to cure this insufficiency, the petitioners attempt to add lacking
provisions to the National Building Code. This is not what is contemplated by curative
statutes, which intend to correct irregularities or invalidity in the law. The petitioners fail
to point out any irregular or invalid provision. As such, the assailed ordinance cannot
qualify as curative and retroactive in nature. aIcHSC
At any rate, there appears to be no insufficiency in the National Building Code with respect
to parking provisions in relation to the issue of the respondents. Paragraph 1.16.1, Rule
XIX of the Rules and Regulations of the said code requires an educational institution to
provide one parking slot for every ten classrooms. As found by the lower courts, the
respondents provide a total of 76 parking slots for their 80 classrooms and, thus, had
more than sufficiently complied with the law.
Ordinance No. 192, as amended, is, therefore, not a curative statute which may be
applied retroactively.
Separability
Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus, invalid and cannot be
enforced against the respondents. Nonetheless, "the general rule is that where part of a
statute is void as repugnant to the Constitution, while another part is valid, the valid
portion, if susceptible to being separated from the invalid, may stand and be enforced."
42 Thus, the other sections of the assailed ordinance remain valid and enforceable.
Conclusion
Considering the invalidity of Sections 3.1 and 5, it is clear that the petitioners were acting
in excess of their jurisdiction in enforcing Ordinance No. 192 against the respondents.
The CA was correct in affirming the decision of the RTC in issuing the writ of prohibition.
The petitioners must permanently desist from enforcing Sections 3.1 and 5 of the assailed
ordinance on the respondents' property in Marikina City.
WHEREFORE, the petition is DENIED. The October 2, 2002 Decision of the Regional
Trial Court in SCA Case No. 2000-381-MK is AFFIRMED but MODIFIED to read as
follows:
WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby issued
commanding the respondents to permanently desist from enforcing or implementing
361
Sections 3.1 and 5 of Ordinance No. 192, Series of 1994, as amended, on the petitioners'
property in question located in Marikina Heights, Marikina, Metro Manila. HDITCS
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Brion, Peralta, Bersamin, Del
Castillo, Abad, Villarama, Jr., Reyes, Perlas-Bernabe and Leonen, JJ., concur.
Perez, J., is on official leave.
||| (Fernando v. St. Scholastica's College, G.R. No. 161107, [March 12, 2013], 706 PHIL
138-166)
8. LEGASPI VS. CITY OF CEBU 711 SCRA 771 (2013)
EN BANC
[G.R. No. 159110. December 10, 2013.]
VALENTINO L. LEGASPI, petitioner, vs. CITY OF CEBU, T.C. (TITO) SAYSON AND
RICARDO HAPITAN, respondents.
[G.R. No. 159692. December 10, 2013.]
BIENVENIDO P. JABAN, SR., AND BIENVENIDO DOUGLAS LUKE BRADBURY
JABAN, petitioners, vs. COURT OF APPEALS, CITY OF CEBU, CITY MAYOR ALVIN
GARCIA, SANGGUNIANG PANLUNSOD OF CITY OF CEBU, HON. RENATO V.
OSMEA, AS PRESIDING OFFICER OF THE SANGGUNIANG PANLUNSOD, AND
CITOM CHAIRMAN ALAN GAVIOLA, AS CITOM CHIEF, CITOM TRAFFIC ENFORCER
E. A. ROMERO, AND LITO GILBUENA, respondents.
DECISION
BERSAMIN, J p:
The goal of the decentralization of powers to the local government units (LGUs) is to
ensure the enjoyment by each of the territorial and political subdivisions of the State of a
genuine and meaningful local autonomy. To attain the goal, the National Legislature has
devolved the three great inherent powers of the State to the LGUs. Each political
subdivision is thereby vested with such powers subject to constitutional and statutory
limitations.
In particular, the Local Government Code (LGC) has expressly empowered the LGUs to
enact and adopt ordinances to regulate vehicular traffic and to prohibit illegal parking
within their jurisdictions. Now challenged before the Court are the constitutionality and
validity of one such ordinance on the ground that the ordinance constituted a
contravention of the guaranty of due process under the Constitution by authorizing the
immobilization of offending vehicles through the clamping of tires. The challenge
originated in the Regional Trial Court (RTC) at the instance of the petitioners vehicle
owners who had borne the brunt of the implementation of the ordinance with the RTC
declaring the ordinance unconstitutional, but it has now reached the Court as a
consolidated appeal taken in due course by the petitioners after the Court of Appeals (CA)
reversed the judgment of the RTC.
Antecedents
362
On January 27, 1997 the Sangguniang Panlungsod of the City of Cebu enacted
Ordinance No. 1664 to authorize the traffic enforcers of Cebu City to immobilize any motor
vehicle violating the parking restrictions and prohibitions defined in Ordinance No. 801
(Traffic Code of Cebu City). 1 The pertinent provisions of Ordinance No. 1664 read:
Section 1. POLICY. It is the policy of the government of the City of Cebu to immobilize
any motor vehicle violating any provision of any City Ordinance on Parking Prohibitions
or Restrictions, more particularly Ordinance No. 801, otherwise known as the Traffic Code
of Cebu City, as amended, in order to have a smooth flow of vehicular traffic in all the
streets in the City of Cebu at all times.
Section 2. IMMOBILIZATION OF VEHICLES. Any vehicle found violating any
provision of any existing ordinance of the City of Cebu which prohibits, regulates or
restricts the parking of vehicles shall be immobilized by clamping any tire of the said
violating vehicle with the use of a denver boot vehicle immobilizer or any other special
gadget designed to immobilize motor vehicles. For this particular purpose, any traffic
enforcer of the City (regular PNP Personnel or Cebu City Traffic Law Enforcement
Personnel) is hereby authorized to immobilize any violating vehicle as hereinabove
provided.
Section 3. PENALTIES. Any motor vehicle, owner or driver violating any ordinance on
parking prohibitions, regulations and/or restrictions, as may be provided under Ordinance
No. 801, as amended, or any other existing ordinance, shall be penalized in accordance
with the penalties imposed in the ordinance so violated, provided that the vehicle
immobilizer may not be removed or released without its owner or driver paying first to the
City Treasurer of Cebu City through the Traffic Violations Bureau (TVB) all the
accumulated penalties for all prior traffic law violations that remain unpaid or unsettled,
plus the administrative penalty of Five Hundred Pesos (P500.00) for the immobilization
of the said vehicle, and receipts of such payments presented to the concerned personnel
of the bureau responsible for the release of the immobilized vehicle, unless otherwise
ordered released by any of the following officers:
a) Chairman, CITOM
b) Chairman, Committee on Police, Fire and Penology
c) Asst. City Fiscal Felipe Belcina
3.1 Any person who tampers or tries to release an immobilized or clamped motor vehicle
by destroying the denver boot vehicle immobilizer or other such special gadgets, shall be
liable for its loss or destruction and shall be prosecuted for such loss or destruction under
pain or penalty under the Revised Penal Code and any other existing ordinance of the
City of Cebu for the criminal act, in addition to his/her civil liabilities under the Civil Code
of the Philippines; Provided that any such act may not be compromised nor settled
amicably extrajudicially.
3.2 Any immobilized vehicle which is unattended and constitute an obstruction to the free
flow of traffic or a hazard thereof shall be towed to the city government impounding area
for safekeeping and may be released only after the provision of Section 3 hereof shall
have been fully complied with.
3.3 Any person who violates any provision of this ordinance shall, upon conviction, be
penalized with imprisonment of not less than one (1) month nor more than six (6) months
or of a fine of not less than Two Thousand Pesos (P2,000.00) nor more than Five
Thousand Pesos (P5,000.00), or both such imprisonment and fine at the discretion of the
court. 2
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On July 29, 1997, Atty. Bienvenido Jaban (Jaban, Sr.) and his son Atty. Bienvenido
Douglas Luke Bradbury Jaban (Jaban, Jr.) brought suit in the RTC in Cebu City against
the City of Cebu, then represented by Hon. Alvin Garcia, its City Mayor, the Sangguniang
Panlungsod of Cebu City and its Presiding Officer, Hon. Renato V. Osmea, and the
chairman and operatives or officers of the City Traffic Operations Management (CITOM),
seeking the declaration of Ordinance No. 1644 as unconstitutional for being in violation
of due process and for being contrary to law, and damages. 3 Their complaint alleged
that on June 23, 1997, Jaban Sr. had properly parked his car in a paying parking area on
Manalili Street, Cebu City to get certain records and documents from his office; 4 that
upon his return after less than 10 minutes, he had found his car being immobilized by a
steel clamp, and a notice being posted on the car to the effect that it would be a criminal
offense to break the clamp; 5 that he had been infuriated by the immobilization of his car
because he had been thereby rendered unable to meet an important client on that day;
that his car was impounded for three days, and was informed at the office of the CITOM
that he had first to pay P4,200.00 as a fine to the City Treasurer of Cebu City for the
release of his car; 6 that the fine was imposed without any court hearing and without due
process of law, for he was not even told why his car had been immobilized; that he had
undergone a similar incident of clamping of his car on the early morning of November 20,
1997 while his car was parked properly in a parking lot in front of the San Nicolas Pasil
Market in Cebu City without violating any traffic regulation or causing any obstruction; that
he was compelled to pay P1,500.00 (itemized as P500.00 for the clamping and P1,000.00
for the violation) without any court hearing and final judgment; that on May 19, 1997,
Jaban, Jr. parked his car in a very secluded place where there was no sign prohibiting
parking; that his car was immobilized by CITOM operative Lito Gilbuena; and that he was
compelled to pay the total sum of P1,400.00 for the release of his car without a court
hearing and a final judgment rendered by a court of justice. 7 cSCTEH
On August 11, 1997, Valentino Legaspi (Legaspi) likewise sued in the RTC the City of
Cebu, T.C. Sayson, Ricardo Hapitan and John Does to demand the delivery of personal
property, declaration of nullity of the Traffic Code of Cebu City, and damages. 8 He
averred that on the morning of July 29, 1997, he had left his car occupying a portion of
the sidewalk and the street outside the gate of his house to make way for the vehicle of
the anay exterminator who had asked to be allowed to unload his materials and
equipment from the front of the residence inasmuch as his daughter's car had been
parked in the carport, with the assurance that the unloading would not take too long; 9
that while waiting for the anay exterminator to finish unloading, the phone in his office
inside the house had rung, impelling him to go into the house to answer the call; that after
a short while, his son-in-law informed him that unknown persons had clamped the front
wheel of his car; 10 that he rushed outside and found a traffic citation stating that his car
had been clamped by CITOM representatives with a warning that the unauthorized
removal of the clamp would subject the remover to criminal charges; 11 and that in the
late afternoon a group headed by Ricardo Hapitan towed the car even if it was not
obstructing the flow of traffic. 12
In separate answers for the City of Cebu and its co-defendants, 13 the City Attorney of
Cebu presented similar defenses, essentially stating that the traffic enforcers had only
upheld the law by clamping the vehicles of the plaintiffs; 14 and that Ordinance No. 1664
enjoyed the presumption of constitutionality and validity. 15
The cases were consolidated before Branch 58 of the RTC, which, after trial, rendered
on January 22, 1999 its decision declaring Ordinance No. 1664 as null and void upon the
following ratiocination:
In clear and simple phrase, the essence of due process was expressed by Daniel Webster
as a "law which hears before it condemns". In another case[s], "procedural due process
is that which hears before it condemns, which proceeds upon inquiry and renders
judgment only after trial." It contemplate(s) notice and opportunity to be heard before
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judgment is rendered affecting ones (sic) person or property." In both procedural and
substantive due process, a hearing is always a pre-requisite, hence, the taking or
deprivation of one's life, liberty or property must be done upon and with observance of
the "due process" clause of the Constitution and the non-observance or violation thereof
is, perforce, unconstitutional.
Under Ordinance No. 1664, when a vehicle is parked in a prohibited, restrycted (sic) or
regulated area in the street or along the street, the vehicle is immobilized by clamping
any tire of said vehicle with the use of a denver boot vehicle immobilizer or any other
special gadget which immobilized the motor vehicle. The violating vehicle is immobilized,
thus, depriving its owner of the use thereof at the sole determination of any traffic enforcer
or regular PNP personnel or Cebu City Traffic Law Enforcement Personnel. The vehicle
immobilizer cannot be removed or released without the owner or driver paying first to the
City Treasurer of Cebu through the Traffic Violations Bureau all the accumulated penalties
of all unpaid or unsettled traffic law violations, plus the administrative penalty of P500.00
and, further, the immobilized vehicle shall be released only upon presentation of the
receipt of said payments and upon release order by the Chairman, CITOM, or Chairman,
Committee on Police, Fire and Penology, or Asst. City Fiscal Felipe Belcina. It should be
stressed that the owner of the immobilized vehicle shall have to undergo all these ordeals
at the mercy of the Traffic Law Enforcer who, as the Ordinance in question mandates, is
the arresting officer, prosecutor, Judge and collector. Otherwise stated, the owner of the
immobilized motor vehicle is deprived of his right to the use of his/her vehicle and
penalized without a hearing by a person who is not legally or duly vested with such rights,
power or authority. The Ordinance in question is penal in nature, and it has been held;
xxx xxx xxx
WHEREFORE, premised (sic) considered, judgment is hereby rendered declaring
Ordinance No. 1664 unconstitutional and directing the defendant City of Cebu to pay the
plaintiff Valentino Legaspi the sum of P110,000.00 representing the value of his car, and
to all the plaintiffs, Valentino L. Legaspi, Bienvenido P. Jaban and Bienvenido Douglas
Luke Bradbury Jaban, the sum of P100,000.00 each or P300,000.00 all as nominal
damages and another P100,000.00 each or P300,000.00 all as temperate or moderate
damages. With costs against defendant City of Cebu.
SO ORDERED. 16 (citations omitted)
The City of Cebu and its co-defendants appealed to the CA, assigning the following errors
to the RTC, namely: (a) the RTC erred in declaring that Ordinance No. 1664 was
unconstitutional; (b) granting, arguendo, that Ordinance No. 1664 was unconstitutional,
the RTC gravely erred in holding that any violation prior to its declaration as being
unconstitutional was irrelevant; (c) granting, arguendo, that Ordinance No. 1664 was
unconstitutional, the RTC gravely erred in awarding damages to the plaintiffs; (d) granting,
arguendo, that the plaintiffs were entitled to damages, the damages awarded were
excessive and contrary to law; and (e) the decision of the RTC was void, because the
Office of the Solicitor General (OSG) had not been notified of the proceedings.
On June 16, 2003, the CA promulgated its assailed decision, 17 overturning the RTC and
declaring Ordinance No. 1664 valid, to wit:
The principal thrust of this appeal is the constitutionality of Ordinance 1664. Defendantsappellants contend that the passage of Ordinance 1664 is in accordance with the police
powers exercised by the City of Cebu through the Sangguniang Panlungsod and granted
by RA 7160, otherwise known as the Local Government Code. A thematic analysis of the
law on municipal corporations confirms this view. As in previous legislation, the Local
Government Code delegates police powers to the local governments in two ways. Firstly,
it enumerates the subjects on which the Sangguniang Panlungsod may exercise these
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powers. Thus, with respect to the use of public streets, Section 458 of the Code states:
HIAcCD
Section 458 (a) The sangguniang panlungsod, as the legislative branch of the city, . . .
shall . . .
(5) (v) Regulate the use of streets, avenues, alleys, sidewalks, bridges, park and other
public places and approve the construction, improvement, repair and maintenance of the
same; establish bus and vehicle stops and terminals or regulate the use of the same by
privately owned vehicles which serve the public; regulate garages and the operation of
conveyances for hire; designate stands to be occupied by public vehicles when not in
use; regulate the putting up of signs, signposts, awnings and awning posts on the streets;
and provide for the lighting, cleaning and sprinkling of streets and public places;
(vi) Regulate traffic on all streets and bridges; prohibit encroachments or obstacles
thereon and, when necessary in the interest of public welfare, authorize the removal of
encroachments and illegal constructions in public places.
It then makes a general grant of the police power. The scope of the legislative authority
of the local government is set out in Section 16, to wit:
Section 16. General Welfare. Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare.
This provision contains what is traditionally known as the general welfare clause. As
expounded in United States vs. Salaveria, 39 Phil. 102, the general welfare clause has
two branches. One branch attaches itself to the main trunk of municipal authority, and
relates to such ordinances and regulations as may be necessary to carry into effect and
discharge the powers and duties conferred upon the municipal council by law. The second
branch of the clause is much more independent of the specific functions of the council,
and authorizes such ordinances as shall seem necessary and proper to provide for health,
safety, prosperity and convenience of the municipality and its inhabitants.
In a vital and critical way, the general welfare clause complements the more specific
powers granted a local government. It serves as a catch-all provision that ensures that
the local government will be equipped to meet any local contingency that bears upon the
welfare of its constituents but has not been actually anticipated. So varied and protean
are the activities that affect the legitimate interests of the local inhabitants that it is wellnigh impossible to say beforehand what may or may not be done specifically through law.
To ensure that a local government can react positively to the people's needs and
expectations, the general welfare clause has been devised and interpreted to allow the
local legislative council to enact such measures as the occasion requires.
Founded on clear authority and tradition, Ordinance 1664 may be deemed a legitimate
exercise of the police powers of the Sangguniang Panlungsod of the City of Cebu. This
local law authorizes traffic enforcers to immobilize and tow for safekeeping vehicles on
the streets that are illegally parked and to release them upon payment of the announced
penalties. As explained in the preamble, it has become necessary to resort to these
measures because of the traffic congestion caused by illegal parking and the inability of
existing penalties to curb it. The ordinance is designed to improve traffic conditions in the
City of Cebu and thus shows a real and substantial relation to the welfare, comfort and
convenience of the people of Cebu. The only restrictions to an ordinance passed under
the general welfare clause, as declared in Salaveria, is that the regulation must be
reasonable, consonant with the general powers and purposes of the corporation,
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consistent with national laws and policies, and not unreasonable or discriminatory. The
measure in question undoubtedly comes within these parameters. HCEaDI
Upon the denial of their respective motions for reconsideration on August 4, 2003, the
Jabans and Legaspi came to the Court via separate petitions for review on certiorari. The
appeals were consolidated.
Issues
Based on the submissions of the parties, the following issues are decisive of the
challenge, to wit:
1. Whether Ordinance No. 1664 was enacted within the ambit of the legislative powers
of the City of Cebu; and
2. Whether Ordinance No. 1664 complied with the requirements for validity and
constitutionality, particularly the limitations set by the Constitution and the relevant
statutes.
Ruling
The petitions for review have no merit.
A.
Tests for a valid ordinance
In City of Manila v. Laguio, Jr., 18 the Court restates the tests of a valid ordinance thusly:
The tests of a valid ordinance are well established. A long line of decisions has held that
for an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and must be passed according to the procedure prescribed by
law, it must also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must
not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be
general and consistent with public policy; and (6) must not be unreasonable. 19
As jurisprudence indicates, the tests are divided into the formal (i.e., whether the
ordinance was enacted within the corporate powers of the LGU, and whether it was
passed in accordance with the procedure prescribed by law), and the substantive (i.e.,
involving inherent merit, like the conformity of the ordinance with the limitations under the
Constitution and the statutes, as well as with the requirements of fairness and reason,
and its consistency with public policy).
B.
Compliance of Ordinance No. 1664
with the formal requirements
Was the enactment of Ordinance No. 1664 within the corporate powers of the LGU of the
City of Cebu?
The answer is in the affirmative. Indeed, with no issues being hereby raised against the
formalities attendant to the enactment of Ordinance No. 1664, we presume its full
compliance with the test in that regard. Congress enacted the LGC as the implementing
law for the delegation to the various LGUs of the State's great powers, namely: the police
power, the power of eminent domain, and the power of taxation. The LGC was fashioned
to delineate the specific parameters and limitations to be complied with by each LGU in
the exercise of these delegated powers with the view of making each LGU a fully
functioning subdivision of the State subject to the constitutional and statutory limitations.
TcIAHS
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In particular, police power is regarded as "the most essential, insistent and the least
limitable of powers, extending as it does 'to all the great public needs.'" 20 It is
unquestionably "the power vested in the legislature by the constitution, to make, ordain
and establish all manner of wholesome and reasonable laws, statutes and ordinances,
either with penalties or without, not repugnant to the constitution, as they shall judge to
be for the good and welfare of the commonwealth, and of the subject of the same." 21
According to Cooley: "[The police power] embraces the whole system of internal
regulation by which the state seeks not only to preserve the public order and to prevent
offences against itself, but also to establish for the intercourse of citizens with citizens,
those rules of good manners and good neighborhood which are calculated to prevent the
conflict of rights and to insure to each the uninterrupted enjoyment of his own, so far as it
is reasonably consistent with the right enjoyment of rights by others." 22
In point is the exercise by the LGU of the City of Cebu of delegated police power. In
Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc., 23 the
Court cogently observed:
It bears stressing that police power is lodged primarily in the National Legislature. It
cannot be exercised by any group or body of individuals not possessing legislative power.
The National Legislature, however, may delegate this power to the President and
administrative boards as well as the lawmaking bodies of municipal corporations or local
government units. Once delegated, the agents can exercise only such legislative powers
as are conferred on them by the national lawmaking body. (emphasis supplied)
The CA opined, and correctly so, that vesting cities like the City of Cebu with the
legislative power to enact traffic rules and regulations was expressly done through
Section 458 of the LGC, and also generally by virtue of the General Welfare Clause
embodied in Section 16 of the LGC. 24
Section 458 of the LGC relevantly states:
Section 458. Powers, Duties, Functions and Composition. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and shall:
xxx xxx xxx
(5) Approve ordinances which shall ensure the efficient and effective delivery of the basic
services and facilities as provided for under Section 17 of this Code, and in addition to
said services and facilities, shall:
xxx xxx xxx
(v) Regulate the use of streets, avenues, alleys, sidewalks, bridges, parks and other
public places and approve the construction, improvement repair and maintenance of the
same; establish bus and vehicle stops and terminals or regulate the use of the same by
privately-owned vehicles which serve the public; regulate garages and operation of
conveyances for hire; designate stands to be occupied by public vehicles when not in
use; regulate the putting up of signs, signposts, awnings and awning posts on the streets;
and provide for the lighting, cleaning and sprinkling of streets and public places;
(vi) Regulate traffic on all streets and bridges; prohibit encroachments or obstacles
thereon and, when necessary in the interest of public welfare, authorize the removal of
encroachments and illegal constructions in public places; (emphasis supplied) aDcTHE
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The foregoing delegation reflected the desire of Congress to leave to the cities
themselves the task of confronting the problem of traffic congestions associated with
development and progress because they were directly familiar with the situations in their
respective jurisdictions. Indeed, the LGUs would be in the best position to craft their traffic
codes because of their familiarity with the conditions peculiar to their communities. With
the broad latitude in this regard allowed to the LGUs of the cities, their traffic regulations
must be held valid and effective unless they infringed the constitutional limitations and
statutory safeguards.
C.
Compliance of Ordinance No. 1664
with the substantive requirements
The first substantive requirement for a valid ordinance is the adherence to the
constitutional guaranty of due process of law. The guaranty is embedded in Article III,
Section 1 of the Constitution, which ordains:
Section 1. No person shall be deprived of life, liberty or property without due process of
law, nor shall any person be denied the equal protection of the laws.
The guaranty of due process of law is a constitutional safeguard against any arbitrariness
on the part of the Government, whether committed by the Legislature, the Executive, or
the Judiciary. It is a protection essential to every inhabitant of the country, for, as a
commentator on Constitutional Law has vividly written: 25
. . . If the law itself unreasonably deprives a person of his life, liberty, or property, he is
denied the protection of due process. If the enjoyment of his rights is conditioned on an
unreasonable requirement, due process is likewise violated. Whatsoever be the source
of such rights, be it the Constitution itself or merely a statute, its unjustified withholding
would also be a violation of due process. Any government act that militates against the
ordinary norms of justice or fair play is considered an infraction of the great guaranty of
due process; and this is true whether the denial involves violation merely of the procedure
prescribed by the law or affects the very validity of the law itself.
In City of Manila v. Laguio, Jr., 26 the Court expounded on the aspects of the guaranty of
due process of law as a limitation on the acts of government, viz.:
This clause has been interpreted as imposing two separate limits on government, usually
called "procedural due process" and "substantive due process".
Procedural due process, as the phrase implies, refers to the procedures that the
government must follow before it deprives a person of life, liberty, or property. Classic
procedural due process issues are concerned with that kind of notice and what form of
hearing the government must provide when it takes a particular action.
Substantive due process, as that phrase connotes, asks whether the government has an
adequate reason for taking away a person's life, liberty, or property. In other words,
substantive due process looks to whether there is sufficient justification for the
government's action. Case law in the United States (U.S.) tells us that whether there is
such a justification depends very much on the level of scrutiny used. For example, if a
law is in an area where only rational basis review is applied, substantive due process is
met so long as the law is rationally related to a legitimate government purpose. But if it is
an area where strict scrutiny is used, such as for protecting fundamental rights, then the
government will meet substantive due process only if it can prove that the law is
necessary to achieve a compelling government purpose.
The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law.
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Such power cannot be exercised whimsically, arbitrarily or despotically as its exercise is

subject to a qualification, limitation or restriction demanded by the respect and regard due
to the prescription of the fundamental law, particularly those forming part of the Bill of
Rights. Individual rights, it bears emphasis, may be adversely affected only to the extent
that may fairly be required by the legitimate demands of public interest or public welfare.
Due process requires the intrinsic validity of the law in interfering with the rights of the
person to his life, liberty and property. 27
The Jabans contend that Ordinance No. 1664, by leaving the confiscation and
immobilization of the motor vehicles to the traffic enforcers or the regular personnel of the
Philippine National Police (PNP) instead of to officials exercising judicial authority, was
violative of the constitutional guaranty of due process; that such confiscation and
immobilization should only be after a hearing on the merits by courts of law; and that the
immobilization and the clamping of the cars and motor vehicles by the police or traffic
enforcers could be subject to abuse.
On his part, Legaspi likewise contends that Ordinance No. 1664 violated the constitutional
guaranty of due process for being arbitrary and oppressive; and that its provisions
conferring upon the traffic enforcers the absolute discretion to be the enforcers,
prosecutors, judges and collectors all at the same time were vague and ambiguous. 28
He reminds that the grant of police powers for the general welfare under the LGC was not
unlimited but subj ect to constitutional limitations; 29 and that these consolidated cases
should not be resolved differently from the resolution of a third case assailing the validity
of Ordinance No. 1664 (Astillero case), in which the decision of the same RTC declaring
Ordinance No. 1664 as unconstitutional had attained finality following the denial of due
course to the appeal of the City of Cebu and its co-defendants.
Judged according to the foregoing enunciation of the guaranty of due process of law, the
contentions of the petitioners cannot be sustained. Even under strict scrutiny review,
Ordinance No. 1664 met the substantive tests of validity and constitutionality by its
conformity with the limitations under the Constitution and the statutes, as well as with the
requirements of fairness and reason, and its consistency with public policy.
To us, the terms encroachment and obstacles used in Section 458 of the LGC, supra,
were broad enough to include illegally parked vehicles or whatever else obstructed the
streets, alleys and sidewalks, which were precisely the subject of Ordinance No. 1664 in
avowedly aiming to ensure "a smooth flow of vehicular traffic in all the streets in the City
of Cebu at all times" (Section 1). This aim was borne out by its Whereas Clauses, viz.:
AICEDc
WHEREAS, the City of Cebu enacted the Traffic Code (Ordinance No. 801) as amended,
provided for Parking Restrictions and Parking Prohibitions in the streets of Cebu City;
WHEREAS, despite the restrictions and prohibitions of parking on certain streets of Cebu
City, violations continued unabated due, among others, to the very low penalties imposed
under the Traffic Code of Cebu City;
WHEREAS, City Ordinance 1642 was enacted in order to address the traffic congentions
caused by illegal parkings in the streets of Cebu City;
WHEREAS, there is a need to amend City Ordinance No. 1642 in order to fully address
and solve the problem of illegal parking and other violations of the Traffic Code of Cebu
City; 30 (emphasis supplied)
Considering that traffic congestions were already retarding the growth and progress in
the population and economic centers of the country, the plain objective of Ordinance No.
1664 was to serve the public interest and advance the general welfare in the City of Cebu.
370
Its adoption was, therefore, in order to fulfill the compelling government purpose of
immediately addressing the burgeoning traffic congestions caused by illegally parked
vehicles obstructing the streets of the City of Cebu.
Legaspi's attack against the provisions of Ordinance No. 1664 for being vague and
ambiguous cannot stand scrutiny. As can be readily seen, its text was forthright and
unambiguous in all respects. There could be no confusion on the meaning and coverage
of the ordinance. But should there be any vagueness and ambiguity in the provisions,
which the OSG does not concede, 31 there was nothing that a proper application of the
basic rules of statutory construction could not justly rectify.
The petitioners further assert that drivers or vehicle owners affected by Ordinance No.
1664 like themselves were not accorded the opportunity to protest the clamping, towing,
and impounding of the vehicles, or even to be heard and to explain their side prior to the
immobilization of their vehicles; and that the ordinance was oppressive and arbitrary for
that reason.
The adverse assertions against Ordinance No. 1664 are unwarranted.
Firstly, Ordinance No. 1664 was far from oppressive and arbitrary. Any driver or vehicle
owner whose vehicle was immobilized by clamping could protest such action of a traffic
enforcer or PNP personnel enforcing the ordinance. Section 3 of Ordinance No. 1664,
supra, textually afforded an administrative escape in the form of permitting the release of
the immobilized vehicle upon a protest directly made to the Chairman of CITOM; or to the
Chairman of the Committee on Police, Fire and Penology of the City of Cebu; or to Asst.
City Prosecutor Felipe Belcia officials named in the ordinance itself. The release could
be ordered by any of such officials even without the payment of the stipulated fine. That
none of the petitioners, albeit lawyers all, resorted to such recourse did not diminish the
fairness and reasonableness of the escape clause written in the ordinance. Secondly, the
immobilization of a vehicle by clamping pursuant to the ordinance was not necessary if
the driver or vehicle owner was around at the time of the apprehension for illegal parking
or obstruction. In that situation, the enforcer would simply either require the driver to move
the vehicle or issue a traffic citation should the latter persist in his violation. The clamping
would happen only to prevent the transgressor from using the vehicle itself to escape the
due sanctions. And, lastly, the towing away of the immobilized vehicle was not equivalent
to a summary impounding, but designed to prevent the immobilized vehicle from
obstructing traffic in the vicinity of the apprehension and thereby ensure the smooth flow
of traffic. The owner of the towed vehicle would not be deprived of his property.
In fine, the circumstances set forth herein indicate that Ordinance No. 1664 complied with
the elements of fairness and reasonableness. ITAaHc
Did Ordinance No. 1664 meet the requirements of procedural due process?
Notice and hearing are the essential requirements of procedural due process. Yet, there
are many instances under our laws in which the absence of one or both of such
requirements is not necessarily a denial or deprivation of due process. Among the
instances are the cancellation of the passport of a person being sought for the
commission of a crime, the preventive suspension of a civil servant facing administrative
charges, the distraint of properties to answer for tax delinquencies, the padlocking of
restaurants found to be unsanitary or of theaters showing obscene movies, and the
abatement of nuisance per se. 32 Add to them the arrest of a person in flagrante delicto.
33
The clamping of the petitioners' vehicles pursuant to Ordinance No. 1664 (and of the
vehicles of others similarly situated) was of the same character as the aforecited
established exceptions dispensing with notice and hearing. As already said, the
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immobilization of illegally parked vehicles by clamping the tires was necessary because
the transgressors were not around at the time of apprehension. Under such circumstance,
notice and hearing would be superfluous. Nor should the lack of a trial-type hearing prior
to the clamping constitute a breach of procedural due process, for giving the
transgressors the chance to reverse the apprehensions through a timely protest could
equally satisfy the need for a hearing. In other words, the prior intervention of a court of
law was not indispensable to ensure a compliance with the guaranty of due process.
To reiterate, the clamping of the illegally parked vehicles was a fair and reasonable way
to enforce the ordinance against its transgressors; otherwise, the transgressors would
evade liability by simply driving away.
Finally, Legaspi's position, that the final decision of the RTC rendered in the Astillero case
declaring Ordinance No. 1664 unconstitutional bound the City of Cebu, thereby
precluding these consolidated appeals from being decided differently, is utterly untenable.
For one, Legaspi undeservedly extends too much importance to an irrelevant decision of
the RTC irrelevant, because the connection between that case to these cases was not
at all shown. For another, he ignores that it should be the RTC that had improperly acted
for so deciding the Astillero case despite the appeals in these cases being already
pending in the CA. Being the same court in the three cases, the RTC should have
anticipated that in the regular course of proceedings the outcome of the appeal in these
cases then pending before the CA would ultimately be elevated to and determined by no
less than the Court itself. Such anticipation should have made it refrain from declaring
Ordinance No. 1664 unconstitutional, for a lower court like itself, appreciating its position
in the "interrelation and operation of the integrated judicial system of the nation," should
have exercised a "becoming modesty" on the issue of the constitutionality of the same
ordinance that the Constitution required the majority vote of the Members of the Court
sitting en banc to determine. 34 Such "becoming modesty" also forewarned that any
declaration of unconstitutionality by an inferior court was binding only on the parties, but
that a declaration of unconstitutionality by the Court would be a precedent binding on all.
35
WHEREFORE, the Court DENIES the petitions for review on certiorari for their lack of
merit; AFFIRMS the decision promulgated on June 16, 2003 by the Court of Appeals; and
ORDERS the petitioners to pay the costs of suit.
SO ORDERED. IaHCAD
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Brion, Peralta, Del Castillo, Abad,
Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe and Leonen, JJ., concur.
||| (Legaspi v. Cebu City, G.R. No. 159110, 159692, [December 10, 2013])
9. MANILA MEMORIAL VS. DSWD 711 SCRA 302 (2013)
EN BANC
[G.R. No. 175356. December 3, 2013.]
MANILA MEMORIAL PARK, INC. AND LA FUNERARIA PAZ-SUCAT, INC.,
petitioners,vs.SECRETARY OF THE DEPARTMENT OF SOCIAL WELFARE AND
DEVELOPMENT and THE SECRETARY OF THE DEPARTMENT OF FINANCE,
respondents.
DECISION
DEL CASTILLO, J p:
372
When a party challenges the constitutionality of a law, the burden of proof rests upon him.
1
Before us is a Petition for Prohibition 2 under Rule 65 of the Rules of Court filed by
petitioners Manila Memorial Park, Inc. and La Funeraria Paz-Sucat, Inc., domestic
corporations engaged in the business of providing funeral and burial services, against
public respondents Secretaries of the Department of Social Welfare and Development
(DSWD) and the Department of Finance (DOF).
Petitioners assail the constitutionality of Section 4 of Republic Act (RA) No. 7432, 3 as
amended by RA 9257, 4 and the implementing rules and regulations issued by the DSWD
and DOF insofar as these allow business establishments to claim the 20% discount given
to senior citizens as a tax deduction. TECcHA
Factual Antecedents
On April 23, 1992, RA 7432 was passed into law, granting senior citizens the following
privileges:
SECTION 4. Privileges for the Senior Citizens. The senior citizens shall be entitled to
the following:
a) the grant of twenty percent (20%) discount from all establishments relative to utilization
of transportation services, hotels and similar lodging establishment[s],restaurants and
recreation centers and purchase of medicine anywhere in the country: Provided, That
private establishments may claim the cost as tax credit;
b) a minimum of twenty percent (20%) discount on admission fees charged by theaters,
cinema houses and concert halls, circuses, carnivals and other similar places of culture,
leisure, and amusement;
c) exemption from the payment of individual income taxes: Provided, That their annual
taxable income does not exceed the property level as determined by the National
Economic and Development Authority (NEDA) for that year;
d) exemption from training fees for socioeconomic programs undertaken by the OSCA
as part of its work;
e) free medical and dental services in government establishment[s] anywhere in the
country, subject to guidelines to be issued by the Department of Health, the Government
Service Insurance System and the Social Security System; EaHATD
f) to the extent practicable and feasible, the continuance of the same benefits and
privileges given by the Government Service Insurance System (GSIS),Social Security
System (SSS) and PAG-IBIG, as the case may be, as are enjoyed by those in actual
service.
On August 23, 1993, Revenue Regulations (RR) No. 02-94 was issued to implement RA
7432. Sections 2 (i) and 4 of RR No. 02-94 provide:
Sec. 2. DEFINITIONS. For purposes of these regulations:
i. Tax Credit refers to the amount representing the 20% discount granted to a qualified
senior citizen by all establishments relative to their utilization of transportation services,
hotels and similar lodging establishments, restaurants, drugstores, recreation centers,
theaters, cinema houses, concert halls, circuses, carnivals and other similar places of
culture, leisure and amusement, which discount shall be deducted by the said
establishments from their gross income for income tax purposes and from their gross
sales for value-added tax or other percentage tax purposes.
xxx xxx xxx
373
Sec. 4.
RECORDING/BOOKKEEPING REQUIREMENTS FOR PRIVATE
ESTABLISHMENTS. Private establishments, i.e.,transport services, hotels and similar
lodging establishments, restaurants, recreation centers, drugstores, theaters, cinema
houses, concert halls, circuses, carnivals and other similar places of culture[,] leisure and
amusement, giving 20% discounts to qualified senior citizens are required to keep
separate and accurate record[s] of sales made to senior citizens, which shall include the
name, identification number, gross sales/receipts, discounts, dates of transactions and
invoice number for every transaction. cISDHE
The amount of 20% discount shall be deducted from the gross income for income tax
purposes and from gross sales of the business enterprise concerned for purposes of the
VAT and other percentage taxes.
In Commissioner of Internal Revenue v. Central Luzon Drug Corporation, 5 the Court
declared Sections 2 (i) and 4 of RR No. 02-94 as erroneous because these contravene
RA 7432, 6 thus:
RA 7432 specifically allows private establishments to claim as tax credit the amount of
discounts they grant. In turn, the Implementing Rules and Regulations, issued pursuant
thereto, provide the procedures for its availment. To deny such credit, despite the plain
mandate of the law and the regulations carrying out that mandate, is indefensible.
First, the definition given by petitioner is erroneous. It refers to tax credit as the amount
representing the 20 percent discount that "shall be deducted by the said establishments
from their gross income for income tax purposes and from their gross sales for valueadded tax or other percentage tax purposes." In ordinary business language, the tax
credit represents the amount of such discount. However, the manner by which the
discount shall be credited against taxes has not been clarified by the revenue regulations.
aHcACT
By ordinary acceptation, a discount is an "abatement or reduction made from the gross
amount or value of anything." To be more precise, it is in business parlance "a deduction
or lowering of an amount of money;" or "a reduction from the full amount or value of
something, especially a price." In business there are many kinds of discount, the most
common of which is that affecting the income statement or financial report upon which
the income tax is based.
xxx xxx xxx
Sections 2.i and 4 of Revenue Regulations No. (RR) 2-94 define tax credit as the 20
percent discount deductible from gross income for income tax purposes, or from gross
sales for VAT or other percentage tax purposes. In effect, the tax credit benefit under RA
7432 is related to a sales discount. This contrived definition is improper, considering that
the latter has to be deducted from gross sales in order to compute the gross income in
the income statement and cannot be deducted again, even for purposes of computing the
income tax.
When the law says that the cost of the discount may be claimed as a tax credit, it means
that the amount when claimed shall be treated as a reduction from any tax liability,
plain and simple. The option to avail of the tax credit benefit depends upon the existence
of a tax liability, but to limit the benefit to a sales discount which is not even identical
to the discount privilege that is granted by law does not define it at all and serves no
useful purpose. The definition must, therefore, be stricken down. DcSTaC
Laws Not Amended
by Regulations
374
Second, the law cannot be amended by a mere regulation. In fact, a regulation that
"operates to create a rule out of harmony with the statute is a mere nullity;" it cannot
prevail.
It is a cardinal rule that courts "will and should respect the contemporaneous construction
placed upon a statute by the executive officers whose duty it is to enforce it ...." In the
scheme of judicial tax administration, the need for certainty and predictability in the
implementation of tax laws is crucial. Our tax authorities fill in the details that "Congress
may not have the opportunity or competence to provide." The regulations these
authorities issue are relied upon by taxpayers, who are certain that these will be followed
by the courts. Courts, however, will not uphold these authorities' interpretations when
clearly absurd, erroneous or improper.
In the present case, the tax authorities have given the term tax credit in Sections 2.i and
4 of RR 2-94 a meaning utterly in contrast to what RA 7432 provides. Their interpretation
has muddled . . . the intent of Congress in granting a mere discount privilege, not a sales
discount. The administrative agency issuing these regulations may not enlarge, alter or
restrict the provisions of the law it administers; it cannot engraft additional requirements
not contemplated by the legislature.
In case of conflict, the law must prevail. A "regulation adopted pursuant to law is law."
Conversely, a regulation or any portion thereof not adopted pursuant to law is no law and
has neither the force nor the effect of law. 7
On February 26, 2004, RA 9257 8 amended certain provisions of RA 7432, to wit:
HSCATc
the following:
(a) the grant of twenty percent (20%) discount from all establishments relative to the
utilization of services in hotels and similar lodging establishments, restaurants and
recreation centers, and purchase of medicines in all establishments for the exclusive use
or enjoyment of senior citizens, including funeral and burial services for the death of senior
citizens;
xxx xxx xxx
The establishment may claim the discounts granted under (a),(f),(g) and (h) as tax
deduction based on the net cost of the goods sold or services rendered: Provided, That
the cost of the discount shall be allowed as deduction from gross income for the same
taxable year that the discount is granted. Provided, further, That the total amount of the
claimed tax deduction net of value added tax if applicable, shall be included in their gross
sales receipts for tax purposes and shall be subject to proper documentation and to the
provisions of the National Internal Revenue Code, as amended.
To implement the tax provisions of RA 9257, the Secretary of Finance issued RR No. 42006, the pertinent provision of which provides:
SEC. 8.
AVAILMENT BY ESTABLISHMENTS OF SALES DISCOUNTS AS
DEDUCTION FROM GROSS INCOME. Establishments enumerated in subparagraph
(6) hereunder granting sales discounts to senior citizens on the sale of goods and/or
services specified thereunder are entitled to deduct the said discount from gross income
subject to the following conditions: caIDSH
(1) Only that portion of the gross sales EXCLUSIVELY USED, CONSUMED OR
ENJOYED BY THE SENIOR CITIZEN shall be eligible for the deductible sales discount.
375
(2) The gross selling price and the sales discount MUST BE SEPARATELY INDICATED
IN THE OFFICIAL RECEIPT OR SALES INVOICE issued by the establishment for the
sale of goods or services to the senior citizen.
(3) Only the actual amount of the discount granted or a sales discount not exceeding
20% of the gross selling price can be deducted from the gross income, net of value added
tax, if applicable, for income tax purposes, and from gross sales or gross receipts of the
business enterprise concerned, for VAT or other percentage tax purposes.
(4) The discount can only be allowed as deduction from gross income for the same
taxable year that the discount is granted.
(5) The business establishment giving sales discounts to qualified senior citizens is
required to keep separate and accurate record[s] of sales, which shall include the name
of the senior citizen, TIN, OSCA ID, gross sales/receipts, sales discount granted, [date]
of [transaction] and invoice number for every sale transaction to senior citizen.
(6) Only the following business establishments which granted sales discount to senior
citizens on their sale of goods and/or services may claim the said discount granted as
deduction from gross income, namely:
xxx xxx xxx
(i) Funeral parlors and similar establishments The beneficiary or any person who shall
shoulder the funeral and burial expenses of the deceased senior citizen shall claim the
discount, such as casket, embalmment, cremation cost and other related services for the
senior citizen upon payment and presentation of [his] death certificate. TSEHcA
The DSWD likewise issued its own Rules and Regulations Implementing RA 9257, to wit:
SCEDAI
RULE VI
DISCOUNTS AS TAX DEDUCTION OF ESTABLISHMENTS
Article 8. Tax Deduction of Establishments. The establishment may claim the
discounts granted under Rule V, Section 4 Discounts for Establishments, Section 9,
Medical and Dental Services in Private Facilities and Sections 10 and 11 Air, Sea and
Land Transportation as tax deduction based on the net cost of the goods sold or services
rendered. Provided, That the cost of the discount shall be allowed as deduction from
gross income for the same taxable year that the discount is granted; Provided, further,
That the total amount of the claimed tax deduction net of value added tax if applicable,
shall be included in their gross sales receipts for tax purposes and shall be subject to
proper documentation and to the provisions of the National Internal Revenue Code, as
amended; Provided, finally, that the implementation of the tax deduction shall be subject
to the Revenue Regulations to be issued by the Bureau of Internal Revenue (BIR) and
approved by the Department of Finance (DOF).
Feeling aggrieved by the tax deduction scheme, petitioners filed the present recourse,
praying that Section 4 of RA 7432, as amended by RA 9257, and the implementing rules
and regulations issued by the DSWD and the DOF be declared unconstitutional insofar
as these allow business establishments to claim the 20% discount given to senior citizens
as a tax deduction; that the DSWD and the DOF be prohibited from enforcing the same;
and that the tax credit treatment of the 20% discount under the former Section 4 (a) of RA
7432 be reinstated.
Issues
Petitioners raise the following issues:
A.
376
WHETHER THE PETITION PRESENTS AN ACTUAL CASE OR CONTROVERSY.

B.
WHETHER SECTION 4 OF REPUBLIC ACT NO. 9257 AND . . . ITS IMPLEMENTING
RULES AND REGULATIONS, INSOFAR AS THEY PROVIDE THAT THE TWENTY
PERCENT (20%) DISCOUNT TO SENIOR CITIZENS MAY BE CLAIMED AS A TAX
DEDUCTION BY THE PRIVATE ESTABLISHMENTS, ARE INVALID AND
UNCONSTITUTIONAL. 9 IaECcH
Petitioners' Arguments
Petitioners emphasize that they are not questioning the 20% discount granted to senior
citizens but are only assailing the constitutionality of the tax deduction scheme prescribed
under RA 9257 and the implementing rules and regulations issued by the DSWD and the
DOF. 10
Petitioners posit that the tax deduction scheme contravenes Article III, Section 9 of the
Constitution, which provides that: "[p]rivate property shall not be taken for public use
without just compensation." 11 In support of their position, petitioners cite Central Luzon
Drug Corporation, 12 where it was ruled that the 20% discount privilege constitutes taking
of private property for public use which requires the payment of just compensation, 13
and Carlos Superdrug Corporation v. Department of Social Welfare and Development, 14
where it was acknowledged that the tax deduction scheme does not meet the definition
of just compensation. 15
Petitioners likewise seek a reversal of the ruling in Carlos Superdrug Corporation 16 that
the tax deduction scheme adopted by the government is justified by police power. 17
They assert that "[a]lthough both police power and the power of eminent domain have the
general welfare for their object, there are still traditional distinctions between the two" 18
and that "eminent domain cannot be made less supreme than police power." 19
Petitioners further claim that the legislature, in amending RA 7432, relied on an erroneous
contemporaneous construction that prior payment of taxes is required for tax credit. 20
Petitioners also contend that the tax deduction scheme violates Article XV, Section 4 21
and Article XIII, Section 11 22 of the Constitution because it shifts the State's
constitutional mandate or duty of improving the welfare of the elderly to the private sector.
23 Under the tax deduction scheme, the private sector shoulders 65% of the discount
because only 35% 24 of it is actually returned by the government. 25 Consequently, the
implementation of the tax deduction scheme prescribed under Section 4 of RA 9257
affects the businesses of petitioners. 26 Thus, there exists an actual case or controversy
of transcendental importance which deserves judicious disposition on the merits by the
highest court of the land. 27 DEcSaI
Respondents' Arguments
Respondents, on the other hand, question the filing of the instant Petition directly with the
Supreme Court as this disregards the hierarchy of courts. 28 They likewise assert that
there is no justiciable controversy as petitioners failed to prove that the tax deduction
treatment is not a "fair and full equivalent of the loss sustained" by them. 29 As to the
constitutionality of RA 9257 and its implementing rules and regulations, respondents
contend that petitioners failed to overturn its presumption of constitutionality. 30 More
important, respondents maintain that the tax deduction scheme is a legitimate exercise
of the State's police power. 31
Our Ruling
The Petition lacks merit. EICSDT
There exists an actual case or
controversy.
We shall first resolve the procedural issue.
When the constitutionality of a law is put in issue, judicial review may be availed of only if
the following requisites concur: "(1) the existence of an actual and appropriate case; (2)
the existence of personal and substantial interest on the part of the party raising the
377
[question of constitutionality];(3) recourse to judicial review is made at the earliest

opportunity; and (4) the [question of constitutionality] is the lis mota of the case." 32
In this case, petitioners are challenging the constitutionality of the tax deduction scheme
provided in RA 9257 and the implementing rules and regulations issued by the DSWD
and the DOF. Respondents, however, oppose the Petition on the ground that there is no
actual case or controversy. We do not agree with respondents.
An actual case or controversy exists when there is "a conflict of legal rights" or "an
assertion of opposite legal claims susceptible of judicial resolution." 33 The Petition must
therefore show that "the governmental act being challenged has a direct adverse effect
on the individual challenging it." 34 In this case, the tax deduction scheme challenged by
petitioners has a direct adverse effect on them. Thus, it cannot be denied that there exists
an actual case or controversy. cTECHI
The validity of the 20% senior citizen
discount and tax deduction scheme
under RA 9257, as an exercise of police
power of the State, has already been
settled in Carlos Superdrug
Corporation.
Petitioners posit that the resolution of this case lies in the determination of whether the
legally mandated 20% senior citizen discount is an exercise of police power or eminent
domain. If it is police power, no just compensation is warranted. But if it is eminent domain,
the tax deduction scheme is unconstitutional because it is not a peso for peso
reimbursement of the 20% discount given to senior citizens. Thus, it constitutes taking of
private property without payment of just compensation.
At the outset, we note that this question has been settled in Carlos Superdrug
Corporation. 35 In that case, we ruled:
Petitioners assert that Section 4(a) of the law is unconstitutional because it constitutes
deprivation of private property. Compelling drugstore owners and establishments to grant
the discount will result in a loss of profit and capital because 1) drugstores impose a markup of only 5% to 10% on branded medicines; and 2) the law failed to provide a scheme
whereby drugstores will be justly compensated for the discount. HcDATC
Examining petitioners' arguments, it is apparent that what petitioners are ultimately
questioning is the validity of the tax deduction scheme as a reimbursement mechanism
for the twenty percent (20%) discount that they extend to senior citizens.
Based on the afore-stated DOF Opinion, the tax deduction scheme does not fully
reimburse petitioners for the discount privilege accorded to senior citizens. This is
because the discount is treated as a deduction, a tax-deductible expense that is
subtracted from the gross income and results in a lower taxable income. Stated otherwise,
it is an amount that is allowed by law to reduce the income prior to the application of the
tax rate to compute the amount of tax which is due. Being a tax deduction, the discount
does not reduce taxes owed on a peso for peso basis but merely offers a fractional
reduction in taxes owed.
Theoretically, the treatment of the discount as a deduction reduces the net income of the
private establishments concerned. The discounts given would have entered the coffers
and formed part of the gross sales of the private establishments, were it not for R.A. No.
9257.
The permanent reduction in their total revenues is a forced subsidy corresponding to the
taking of private property for public use or benefit. This constitutes compensable taking
for which petitioners would ordinarily become entitled to a just compensation.
Just compensation is defined as the full and fair equivalent of the property taken from its
owner by the expropriator. The measure is not the taker's gain but the owner's loss. The
word just is used to intensify the meaning of the word compensation,and to convey the
378
idea that the equivalent to be rendered for the property to be taken shall be real,
substantial, full and ample. TcHCDI
A tax deduction does not offer full reimbursement of the senior citizen discount. As such,
it would not meet the definition of just compensation.
Having said that, this raises the question of whether the State, in promoting the health
and welfare of a special group of citizens, can impose upon private establishments the
burden of partly subsidizing a government program.
The Court believes so.
The Senior Citizens Act was enacted primarily to maximize the contribution of senior
citizens to nation-building, and to grant benefits and privileges to them for their
improvement and well-being as the State considers them an integral part of our society.
The priority given to senior citizens finds its basis in the Constitution as set forth in the
law itself. Thus, the Act provides:
SEC. 2. Republic Act No. 7432 is hereby amended to read as follows: TaDSCA
SECTION 1. Declaration of Policies and Objectives. Pursuant to Article XV, Section
4 of the Constitution, it is the duty of the family to take care of its elderly members while
the State may design programs of social security for them. In addition to this, Section 10
in the Declaration of Principles and State Policies provides: "The State shall provide social
justice in all phases of national development." Further, Article XIII, Section 11, provides:
"The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available
to all the people at affordable cost. There shall be priority for the needs of the
underprivileged sick, elderly, disabled, women and children." Consonant with these
constitutional principles the following are the declared policies of this Act: DacASC
xxx xxx xxx
(f) To recognize the important role of the private sector in the improvement of the welfare
of senior citizens and to actively seek their partnership.
To implement the above policy, the law grants a twenty percent discount to senior citizens
for medical and dental services, and diagnostic and laboratory fees; admission fees
charged by theaters, concert halls, circuses, carnivals, and other similar places of culture,
leisure and amusement; fares for domestic land, air and sea travel; utilization of services
in hotels and similar lodging establishments, restaurants and recreation centers; and
purchases of medicines for the exclusive use or enjoyment of senior citizens. As a form
of reimbursement, the law provides that business establishments extending the twenty
percent discount to senior citizens may claim the discount as a tax deduction.
The law is a legitimate exercise of police power which, similar to the power of eminent
domain, has general welfare for its object. Police power is not capable of an exact
definition, but has been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough room for an efficient and
flexible response to conditions and circumstances, thus assuring the greatest benefits.
Accordingly, it has been described as "the most essential, insistent and the least limitable
of powers, extending as it does to all the great public needs." It is "[t]he power vested in
the legislature by the constitution to make, ordain, and establish all manner of wholesome
and reasonable laws, statutes, and ordinances, either with penalties or without, not
repugnant to the constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same." HCaIDS
379
For this reason, when the conditions so demand as determined by the legislature,
property rights must bow to the primacy of police power because property rights, though
sheltered by due process, must yield to general welfare.
Police power as an attribute to promote the common good would be diluted considerably
if on the mere plea of petitioners that they will suffer loss of earnings and capital, the
questioned provision is invalidated. Moreover, in the absence of evidence demonstrating
the alleged confiscatory effect of the provision in question, there is no basis for its
nullification in view of the presumption of validity which every law has in its favor.
Given these, it is incorrect for petitioners to insist that the grant of the senior citizen
discount is unduly oppressive to their business, because petitioners have not taken time
to calculate correctly and come up with a financial report, so that they have not been able
to show properly whether or not the tax deduction scheme really works greatly to their
disadvantage.
In treating the discount as a tax deduction, petitioners insist that they will incur losses
because, referring to the DOF Opinion, for every P1.00 senior citizen discount that
petitioners would give, P0.68 will be shouldered by them as only P0.32 will be refunded
by the government by way of a tax deduction. HIaAED
To illustrate this point, petitioner Carlos Super Drug cited the anti-hypertensive
maintenance drug Norvasc as an example. According to the latter, it acquires Norvasc
from the distributors at P37.57 per tablet, and retails it at P39.60 (or at a margin of 5%).If
it grants a 20% discount to senior citizens or an amount equivalent to P7.92, then it would
have to sell Norvasc at P31.68 which translates to a loss from capital of P5.89 per tablet.
Even if the government will allow a tax deduction, only P2.53 per tablet will be refunded
and not the full amount of the discount which is P7.92. In short, only 32% of the 20%
discount will be reimbursed to the drugstores.
Petitioners' computation is flawed. For purposes of reimbursement, the law states that
the cost of the discount shall be deducted from gross income, the amount of income
derived from all sources before deducting allowable expenses, which will result in net
income. Here, petitioners tried to show a loss on a per transaction basis, which should
not be the case. An income statement, showing an accounting of petitioners' sales,
expenses, and net profit (or loss) for a given period could have accurately reflected the
effect of the discount on their income. Absent any financial statement, petitioners cannot
substantiate their claim that they will be operating at a loss should they give the discount.
In addition, the computation was erroneously based on the assumption that their
customers consisted wholly of senior citizens. Lastly, the 32% tax rate is to be imposed
on income, not on the amount of the discount.
Furthermore, it is unfair for petitioners to criticize the law because they cannot raise the
prices of their medicines given the cutthroat nature of the players in the industry. It is a
business decision on the part of petitioners to peg the mark-up at 5%.Selling the
medicines below acquisition cost, as alleged by petitioners, is merely a result of this
decision. Inasmuch as pricing is a property right, petitioners cannot reproach the law for
being oppressive, simply because they cannot afford to raise their prices for fear of losing
their customers to competition. DIETHS
The Court is not oblivious of the retail side of the pharmaceutical industry and the
competitive pricing component of the business. While the Constitution protects property
rights, petitioners must accept the realities of business and the State, in the exercise of
police power, can intervene in the operations of a business which may result in an
impairment of property rights in the process.
380
Moreover, the right to property has a social dimension. While Article XIII of the
Constitution provides the precept for the protection of property, various laws and
jurisprudence, particularly on agrarian reform and the regulation of contracts and public
utilities, continuously serve as . . . reminder[s] that the right to property can be relinquished
upon the command of the State for the promotion of public good.
Undeniably, the success of the senior citizens program rests largely on the support
imparted by petitioners and the other private establishments concerned. This being the
case, the means employed in invoking the active participation of the private sector, in
order to achieve the purpose or objective of the law, is reasonably and directly related.
Without sufficient proof that Section 4 (a) of R.A. No. 9257 is arbitrary, and that the
continued implementation of the same would be unconscionably detrimental to
petitioners, the Court will refrain from quashing a legislative act. 36 (Bold in the original;
underline supplied)
We, thus, found that the 20% discount as well as the tax deduction scheme is a valid
exercise of the police power of the State. ATcaEH
No compelling reason has been
proffered to overturn, modify or
abandon the ruling in Carlos
Superdrug Corporation.
Petitioners argue that we have previously ruled in Central Luzon Drug Corporation 37 that
the 20% discount is an exercise of the power of eminent domain, thus, requiring the
payment of just compensation. They urge us to re-examine our ruling in Carlos Superdrug
Corporation 38 which allegedly reversed the ruling in Central Luzon Drug Corporation. 39
They also point out that Carlos Superdrug Corporation 40 recognized that the tax
deduction scheme under the assailed law does not provide for sufficient just
compensation.
We agree with petitioners' observation that there are statements in Central Luzon Drug
Corporation 41 describing the 20% discount as an exercise of the power of eminent
domain, viz.:
[T]he privilege enjoyed by senior citizens does not come directly from the State, but rather
from the private establishments concerned. Accordingly, the tax credit benefit granted to
these establishments can be deemed as their just compensation for private property
taken by the State for public use.
The concept of public use is no longer confined to the traditional notion of use by the
public, but held synonymous with public interest, public benefit, public welfare,and public
convenience.The discount privilege to which our senior citizens are entitled is actually a
benefit enjoyed by the general public to which these citizens belong. The discounts given
would have entered the coffers and formed part of the gross sales of the private
establishments concerned, were it not for RA 7432. The permanent reduction in their total
revenues is a forced subsidy corresponding to the taking of private property for public use
or benefit. HDTcEI
As a result of the 20 percent discount imposed by RA 7432, respondent becomes entitled
to a just compensation.This term refers not only to the issuance of a tax credit certificate
indicating the correct amount of the discounts given, but also to the promptness in its
release. Equivalent to the payment of property taken by the State, such issuance when
not done within a reasonable time from the grant of the discounts cannot be considered
as just compensation.In effect, respondent is made to suffer the consequences of being
immediately deprived of its revenues while awaiting actual receipt, through the certificate,
of the equivalent amount it needs to cope with the reduction in its revenues.
Besides, the taxation power can also be used as an implement for the exercise of the
power of eminent domain. Tax measures are but "enforced contributions exacted on pain
of penal sanctions" and "clearly imposed for a public purpose." In recent years, the power
381
to tax has indeed become a most effective tool to realize social justice, public welfare,and
the equitable distribution of wealth.
While it is a declared commitment under Section 1 of RA 7432, social justice "cannot be
invoked to trample on the rights of property owners who under our Constitution and laws
are also entitled to protection. The social justice consecrated in our [C]onstitution [is] not
intended to take away rights from a person and give them to another who is not entitled
thereto." For this reason, a just compensation for income that is taken away from
respondent becomes necessary. It is in the tax credit that our legislators find support to
realize social justice, and no administrative body can alter that fact. DHESca
To put it differently, a private establishment that merely breaks even without the
discounts yet will surely start to incur losses because of such discounts. The same
effect is expected if its mark-up is less than 20 percent, and if all its sales come from retail
purchases by senior citizens. Aside from the observation we have already raised earlier,
it will also be grossly unfair to an establishment if the discounts will be treated merely as
deductions from either its gross income or its gross sales.Operating at a loss through no
fault of its own, it will realize that the tax credit limitation under RR 2-94 is inutile, if not
improper. Worse, profit-generating businesses will be put in a better position if they avail
themselves of tax credits denied those that are losing, because no taxes are due from the
latter. 42 (Italics in the original; emphasis supplied)
The above was partly incorporated in our ruling in Carlos Superdrug Corporation 43 when
we stated preliminarily that
whereby drugstores will be justly compensated for the discount. STEacI
9257.
substantial, full and ample.
382
The Court believes so. 44 TaEIAS
This, notwithstanding, we went on to rule in Carlos Superdrug Corporation 45 that the
20% discount and tax deduction scheme is a valid exercise of the police power of the
State.
The present case, thus, affords an opportunity for us to clarify the above-quoted
statements in Central Luzon Drug Corporation 46 and Carlos Superdrug Corporation. 47
First, we note that the above-quoted disquisition on eminent domain in Central Luzon
Drug Corporation 48 is obiter dicta and, thus, not binding precedent. As stated earlier, in
Central Luzon Drug Corporation, 49 we ruled that the BIR acted ultra vires when it
effectively treated the 20% discount as a tax deduction, under Sections 2.i and 4 of RR
No. 2-94, despite the clear wording of the previous law that the same should be treated
as a tax credit. We were, therefore, not confronted in that case with the issue as to
whether the 20% discount is an exercise of police power or eminent domain.
Second, although we adverted to Central Luzon Drug Corporation 50 in our ruling in
Carlos Superdrug Corporation, 51 this referred only to preliminary matters. A fair reading
of Carlos Superdrug Corporation 52 would show that we categorically ruled therein that
the 20% discount is a valid exercise of police power. Thus, even if the current law, through
its tax deduction scheme (which abandoned the tax credit scheme under the previous
law), does not provide for a peso for peso reimbursement of the 20% discount given by
private establishments, no constitutional infirmity obtains because, being a valid exercise
of police power, payment of just compensation is not warranted.
We have carefully reviewed the basis of our ruling in Carlos Superdrug Corporation 53
and we find no cogent reason to overturn, modify or abandon it. We also note that
petitioners' arguments are a mere reiteration of those raised and resolved in Carlos
Superdrug Corporation. 54 Thus, we sustain Carlos Superdrug Corporation. 55 EAIcCS
Nonetheless, we deem it proper, in what follows, to amplify our explanation in Carlos
Superdrug Corporation 56 as to why the 20% discount is a valid exercise of police power
and why it may not, under the specific circumstances of this case,be considered as an
exercise of the power of eminent domain contrary to the obiter in Central Luzon Drug
Corporation. 57 IaAScD
Police power versus eminent domain.
Police power is the inherent power of the State to regulate or to restrain the use of liberty
and property for public welfare. 58 The only limitation is that the restriction imposed should
be reasonable, not oppressive. 59 In other words, to be a valid exercise of police power,
it must have a lawful subject or objective and a lawful method of accomplishing the goal.
60 Under the police power of the State, "property rights of individuals may be subjected
to restraints and burdens in order to fulfill the objectives of the government." 61 The State
"may interfere with personal liberty, property, lawful businesses and occupations to
promote the general welfare [as long as] the interference [is] reasonable and not
arbitrary." 62 Eminent domain, on the other hand, is the inherent power of the State to
take or appropriate private property for public use. 63 The Constitution, however, requires
that private property shall not be taken without due process of law and the payment of
just compensation. 64
Traditional distinctions exist between police power and eminent domain.
In the exercise of police power, a property right is impaired by regulation, 65 or the use
of property is merely prohibited, regulated or restricted 66 to promote public welfare. In
such cases, there is no compensable taking, hence, payment of just compensation is not
required. Examples of these regulations are property condemned for being noxious or
383
intended for noxious purposes (e.g., a building on the verge of collapse to be demolished
for public safety, or obscene materials to be destroyed in the interest of public morals) 67
as well as zoning ordinances prohibiting the use of property for purposes injurious to the
health, morals or safety of the community (e.g., dividing a city's territory into residential
and industrial areas). 68 It has, thus, been observed that, in the exercise of police power
(as distinguished from eminent domain), although the regulation affects the right of
ownership, none of the bundle of rights which constitute ownership is appropriated for
use by or for the benefit of the public. 69 HASTCa
On the other hand, in the exercise of the power of eminent domain, property interests are
appropriated and applied to some public purpose which necessitates the payment of just
compensation therefor. Normally, the title to and possession of the property are
transferred to the expropriating authority. Examples include the acquisition of lands for
the construction of public highways as well as agricultural lands acquired by the
government under the agrarian reform law for redistribution to qualified farmer
beneficiaries. However, it is a settled rule that the acquisition of title or total destruction of
the property is not essential for "taking" under the power of eminent domain to be present.
70 Examples of these include establishment of easements such as where the land owner
is perpetually deprived of his proprietary rights because of the hazards posed by electric
transmission lines constructed above his property 71 or the compelled interconnection of
the telephone system between the government and a private company. 72 In these cases,
although the private property owner is not divested of ownership or possession, payment
of just compensation is warranted because of the burden placed on the property for the
use or benefit of the public.
The 20% senior citizen discount is an
exercise of police power.
It may not always be easy to determine whether a challenged governmental act is an
exercise of police power or eminent domain. The very nature of police power as elastic
and responsive to various social conditions 73 as well as the evolving meaning and scope
of public use 74 and just compensation 75 in eminent domain evinces that these are not
static concepts. Because of the exigencies of rapidly changing times, Congress may be
compelled to adopt or experiment with different measures to promote the general welfare
which may not fall squarely within the traditionally recognized categories of police power
and eminent domain. The judicious approach, therefore, is to look at the nature and
effects of the challenged governmental act and decide, on the basis thereof, whether the
act is the exercise of police power or eminent domain. Thus, we now look at the nature
and effects of the 20% discount to determine if it constitutes an exercise of police power
or eminent domain. ASHaDT
The 20% discount is intended to improve the welfare of senior citizens who, at their age,
are less likely to be gainfully employed, more prone to illnesses and other disabilities,
and, thus, in need of subsidy in purchasing basic commodities. It may not be amiss to
mention also that the discount serves to honor senior citizens who presumably spent the
productive years of their lives on contributing to the development and progress of the
nation. This distinct cultural Filipino practice of honoring the elderly is an integral part of
this law.
As to its nature and effects, the 20% discount is a regulation affecting the ability of private
establishments to price their products and services relative to a special class of
individuals, senior citizens, for which the Constitution affords preferential concern. 76 In
turn, this affects the amount of profits or income/gross sales that a private establishment
can derive from senior citizens. In other words, the subject regulation affects the pricing,
and, hence, the profitability of a private establishment. However, it does not purport to
appropriate or burden specific properties, used in the operation or conduct of the business
of private establishments, for the use or benefit of the public, or senior citizens for that
matter, but merely regulates the pricing of goods and services relative to, and the amount
of profits or income/gross sales that such private establishments may derive from, senior
citizens. ITEcAD
The subject regulation may be said to be similar to, but with substantial distinctions from,
price control or rate of return on investment control laws which are traditionally regarded
384
as police power measures. 77 These laws generally regulate public utilities or

industries/enterprises imbued with public interest in order to protect consumers from
exorbitant or unreasonable pricing as well as temper corporate greed by controlling the
rate of return on investment of these corporations considering that they have a monopoly
over the goods or services that they provide to the general public. The subject regulation
differs therefrom in that (1) the discount does not prevent the establishments from
adjusting the level of prices of their goods and services, and (2) the discount does not
apply to all customers of a given establishment but only to the class of senior citizens.
Nonetheless, to the degree material to the resolution of this case, the 20% discount may
be properly viewed as belonging to the category of price regulatory measures which affect
the profitability of establishments subjected thereto.
On its face, therefore, the subject regulation is a police power measure.
The obiter in Central Luzon Drug Corporation, 78 however, describes the 20% discount
as an exercise of the power of eminent domain and the tax credit, under the previous law,
equivalent to the amount of discount given as the just compensation therefor. The reason
is that (1) the discount would have formed part of the gross sales of the establishment
were it not for the law prescribing the 20% discount, and (2) the permanent reduction in
total revenues is a forced subsidy corresponding to the taking of private property for public
use or benefit. DTEScI
The flaw in this reasoning is in its premise. It presupposes that the subject regulation,
which impacts the pricing and, hence, the profitability of a private establishment,
automatically amounts to a deprivation of property without due process of law. If this were
so, then all price and rate of return on investment control laws would have to be
invalidated because they impact, at some level, the regulated establishment's profits or
income/gross sales, yet there is no provision for payment of just compensation. It would
also mean that government cannot set price or rate of return on investment limits, which
reduce the profits or income/gross sales of private establishments, if no just
compensation is paid even if the measure is not confiscatory. The obiter is, thus, at odds
with the settled doctrine that the State can employ police power measures to regulate the
pricing of goods and services, and, hence, the profitability of business establishments in
order to pursue legitimate State objectives for the common good, provided that the
regulation does not go too far as to amount to "taking." 79
In City of Manila v. Laguio, Jr., 80 we recognized that
...a taking also could be found if government regulation of the use of property went "too
far." When regulation reaches a certain magnitude, in most if not in all cases there must
be an exercise of eminent domain and compensation to support the act. While property
may be regulated to a certain extent, if regulation goes too far it will be recognized as a
taking. cHSIAC
No formula or rule can be devised to answer the questions of what is too far and when
regulation becomes a taking. In Mahon,Justice Holmes recognized that it was "a question
of degree and therefore cannot be disposed of by general propositions." On many other
occasions as well, the U.S. Supreme Court has said that the issue of when regulation
constitutes a taking is a matter of considering the facts in each case. The Court asks
whether justice and fairness require that the economic loss caused by public action must
be compensated by the government and thus borne by the public as a whole, or whether
the loss should remain concentrated on those few persons subject to the public action.
81
The impact or effect of a regulation, such as the one under consideration, must, thus, be
determined on a case-to-case basis. Whether that line between permissible regulation
under police power and "taking" under eminent domain has been crossed must, under
the specific circumstances of this case, be subject to proof and the one assailing the
constitutionality of the regulation carries the heavy burden of proving that the measure is
unreasonable, oppressive or confiscatory. The time-honored rule is that the burden of
proving the unconstitutionality of a law rests upon the one assailing it and "the burden
becomes heavier when police power is at issue." 82
385
The 20% senior citizen discount has not

been shown to be unreasonable,
oppressive or confiscatory.
In Alalayan v. National Power Corporation, 83 petitioners, who were franchise holders of
electric plants, challenged the validity of a law limiting their allowable net profits to no
more than 12% per annum of their investments plus two-month operating expenses. In
rejecting their plea, we ruled that, in an earlier case, it was found that 12% is a reasonable
rate of return and that petitioners failed to prove that the aforesaid rate is confiscatory in
view of the presumption of constitutionality. 84 aESHDA
We adopted a similar line of reasoning in Carlos Superdrug Corporation 85 when we ruled
that petitioners therein failed to prove that the 20% discount is arbitrary, oppressive or
confiscatory. We noted that no evidence, such as a financial report, to establish the impact
of the 20% discount on the overall profitability of petitioners was presented in order to
show that they would be operating at a loss due to the subject regulation or that the
continued implementation of the law would be unconscionably detrimental to the business
operations of petitioners. In the case at bar, petitioners proceeded with a hypothetical
computation of the alleged loss that they will suffer similar to what the petitioners in Carlos
Superdrug Corporation 86 did. Petitioners went directly to this Court without first
establishing the factual bases of their claims. Hence, the present recourse must, likewise,
fail.
Because all laws enjoy the presumption of constitutionality, courts will uphold a law's
validity if any set of facts may be conceived to sustain it. 87 On its face, we find that there
are at least two conceivable bases to sustain the subject regulation's validity absent clear
and convincing proof that it is unreasonable, oppressive or confiscatory. Congress may
have legitimately concluded that business establishments have the capacity to absorb a
decrease in profits or income/gross sales due to the 20% discount without substantially
affecting the reasonable rate of return on their investments considering (1) not all
customers of a business establishment are senior citizens and (2) the level of its profit
margins on goods and services offered to the general public. Concurrently, Congress may
have, likewise, legitimately concluded that the establishments, which will be required to
extend the 20% discount, have the capacity to revise their pricing strategy so that
whatever reduction in profits or income/gross sales that they may sustain because of
sales to senior citizens, can be recouped through higher mark-ups or from other products
not subject of discounts. As a result, the discounts resulting from sales to senior citizens
will not be confiscatory or unduly oppressive. aESICD
In sum, we sustain our ruling in Carlos Superdrug Corporation 88 that the 20% senior
citizen discount and tax deduction scheme are valid exercises of police power of the State
absent a clear showing that it is arbitrary, oppressive or confiscatory.
Conclusion
In closing, we note that petitioners hypothesize, consistent with our previous
ratiocinations, that the discount will force establishments to raise their prices in order to
compensate for its impact on overall profits or income/gross sales. The general public, or
those not belonging to the senior citizen class, are, thus, made to effectively shoulder the
subsidy for senior citizens. This, in petitioners' view, is unfair.
As already mentioned, Congress may be reasonably assumed to have foreseen this
eventuality. But, more importantly, this goes into the wisdom, efficacy and expediency of
the subject law which is not proper for judicial review. In a way, this law pursues its social
equity objective in a non-traditional manner unlike past and existing direct subsidy
programs of the government for the poor and marginalized sectors of our society. Verily,
Congress must be given sufficient leeway in formulating welfare legislations given the
enormous challenges that the government faces relative to, among others, resource
adequacy and administrative capability in implementing social reform measures which
aim to protect and uphold the interests of those most vulnerable in our society. In the
process, the individual, who enjoys the rights, benefits and privileges of living in a
democratic polity, must bear his share in supporting measures intended for the common
good. This is only fair.
386
In fine, without the requisite showing of a clear and unequivocal breach of the
Constitution, the validity of the assailed law must be sustained. cSDHEC
Refutation of the Dissent
The main points of Justice Carpio's Dissent may be summarized as follows: (1) the
discussion on eminent domain in Central Luzon Drug Corporation 89 is not obiter dicta;
(2) allowable taking, in police power, is limited to property that is destroyed or placed
outside the commerce of man for public welfare; (3) the amount of mandatory discount is
private property within the ambit of Article III, Section 9 90 of the Constitution; and (4) the
permanent reduction in a private establishment's total revenue, arising from the
mandatory discount, is a taking of private property for public use or benefit, hence, an
exercise of the power of eminent domain requiring the payment of just compensation.
I
We maintain that the discussion on eminent domain in Central Luzon Drug Corporation
91 is obiter dicta.
As previously discussed, in Central Luzon Drug Corporation, 92 the BIR, pursuant to
Sections 2.i and 4 of RR No. 2-94, treated the senior citizen discount in the previous law,
RA 7432, as a tax deduction instead of a tax credit despite the clear provision in that law
which stated
the following:
a) The grant of twenty percent (20%) discount from all establishments relative to
utilization of transportation services, hotels and similar lodging establishment, restaurants
and recreation centers and purchase of medicines anywhere in the country: Provided,
That private establishments may claim the cost as tax credit;(Emphasis supplied)
Thus, the Court ruled that the subject revenue regulation violated the law, viz.:
The 20 percent discount required by the law to be given to senior citizens is a tax credit,
not merely a tax deduction from the gross income or gross sale of the establishment
concerned. A tax credit is used by a private establishment only after the tax has been
computed; a tax deduction, before the tax is computed. RA 7432 unconditionally grants
a tax credit to all covered entities. Thus, the provisions of the revenue regulation that
withdraw or modify such grant are void. Basic is the rule that administrative regulations
cannot amend or revoke the law. 93
As can be readily seen, the discussion on eminent domain was not necessary in order to
arrive at this conclusion. All that was needed was to point out that the revenue regulation
contravened the law which it sought to implement. And, precisely, this was done in Central
Luzon Drug Corporation 94 by comparing the wording of the previous law vis- -vis the
revenue regulation; employing the rules of statutory construction; and applying the settled
principle that a regulation cannot amend the law it seeks to implement. IcTEaC
A close reading of Central Luzon Drug Corporation 95 would show that the Court went on
to state that the tax credit "can be deemed" as just compensation only to explain why the
previous law provides for a tax credit instead of a tax deduction. The Court surmised that
the tax credit was a form of just compensation given to the establishments covered by the
20% discount. However, the reason why the previous law provided for a tax credit and
not a tax deduction was not necessary to resolve the issue as to whether the revenue
regulation contravenes the law. Hence, the discussion on eminent domain is obiter dicta.
A court, in resolving cases before it, may look into the possible purposes or reasons that
impelled the enactment of a particular statute or legal provision. However, statements
made relative thereto are not always necessary in resolving the actual controversies
presented before it. This was the case in Central Luzon Drug Corporation 96 resulting in
that unfortunate statement that the tax credit "can be deemed" as just compensation.
This, in turn, led to the erroneous conclusion, by deductive reasoning, that the 20%
discount is an exercise of the power of eminent domain. The Dissent essentially adopts
this theory and reasoning which, as will be shown below, is contrary to settled principles
in police power and eminent domain analysis.
387
II
The Dissent discusses at length the doctrine on "taking" in police power which occurs
when private property is destroyed or placed outside the commerce of man. Indeed, there
is a whole class of police power measures which justify the destruction of private property
in order to preserve public health, morals, safety or welfare. As earlier mentioned, these
would include a building on the verge of collapse or confiscated obscene materials as
well as those mentioned by the Dissent with regard to property used in violating a criminal
statute or one which constitutes a nuisance. In such cases, no compensation is required.
However, it is equally true that there is another class of police power measures which do
not involve the destruction of private property but merely regulate its use. The minimum
wage law, zoning ordinances, price control laws, laws regulating the operation of motels
and hotels, laws limiting the working hours to eight, and the like would fall under this
category. The examples cited by the Dissent, likewise, fall under this category: Article 157
of the Labor Code, Sections 19 and 18 of the Social Security Law, and Section 7 of the
Pag-IBIG Fund Law. These laws merely regulate or, to use the term of the Dissent, burden
the conduct of the affairs of business establishments. In such cases, payment of just
compensation is not required because they fall within the sphere of permissible police
power measures. The senior citizen discount law falls under this latter category. cIECTH
III
The Dissent proceeds from the theory that the permanent reduction of profits or
income/gross sales, due to the 20% discount, is a "taking" of private property for public
purpose without payment of just compensation.
At the outset, it must be emphasized that petitioners never presented any evidence to
establish that they were forced to suffer enormous losses or operate at a loss due to the
effects of the assailed law. They came directly to this Court and provided a hypothetical
computation of the loss they would allegedly suffer due to the operation of the assailed
law. The central premise of the Dissent's argument that the 20% discount results in a
permanent reduction in profits or income/gross sales, or forces a business establishment
to operate at a loss is, thus, wholly unsupported by competent evidence. To be sure, the
Court can invalidate a law which, on its face, is arbitrary, oppressive or confiscatory. 97
But this is not the case here.
In the case at bar, evidence is indispensable before a determination of a constitutional
violation can be made because of the following reasons.
First, the assailed law, by imposing the senior citizen discount, does not take any of the
properties used by a business establishment like, say, the land on which a manufacturing
plant is constructed or the equipment being used to produce goods or services.
Second, rather than taking specific properties of a business establishment, the senior
citizen discount law merely regulates the prices of the goods or services being sold to
senior citizens by mandating a 20% discount. Thus, if a product is sold at P10.00 to the
general public, then it shall be sold at P8.00 (i.e.,P10.00 less 20%) to senior citizens. Note
that the law does not impose at what specific price the product shall be sold, only that a
20% discount shall be given to senior citizens based on the price set by the business
establishment. A business establishment is, thus, free to adjust the prices of the goods
or services it provides to the general public. Accordingly, it can increase the price of the
above product to P20.00 but is required to sell it at P16.00 (i.e.,P20.00 less 20%) to senior
citizens. DaIAcC
Third, because the law impacts the prices of the goods or services of a particular
establishment relative to its sales to senior citizens, its profits or income/gross sales are
affected. The extent of the impact would, however, depend on the profit margin of the
business establishment on a particular good or service. If a product costs P5.00 to
produce and is sold at P10.00, then the profit 98 is P5.00 99 or a profit margin 100 of
50%. 101 Under the assailed law, the aforesaid product would have to be sold at P8.00
to senior citizens yet the business would still earn P3.00 102 or a 30% 103 profit margin.
On the other hand, if the product costs P9.00 to produce and is required to be sold at
P8.00 to senior citizens, then the business would experience a loss of P1.00. 104 But
note that since not all customers of a business establishment are senior citizens, the
388
business establishment may continue to earn P1.00 from non-senior citizens which, in
turn, can offset any loss arising from sales to senior citizens.
Fourth, when the law imposes the 20% discount in favor of senior citizens, it does not
prevent the business establishment from revising its pricing strategy. By revising its
pricing strategy, a business establishment can recoup any reduction of profits or
income/gross sales which would otherwise arise from the giving of the 20% discount. To
illustrate, suppose A has two customers: X, a senior citizen, and Y, a non-senior citizen.
Prior to the law, A sells his products at P10.00 a piece to X and Y resulting in income/gross
sales of P20.00 (P10.00 + P10.00).With the passage of the law, A must now sell his
product to X at P8.00 (i.e.,P10.00 less 20%) so that his income/gross sales would be
P18.00 (P8.00 + P10.00) or lower by P2.00. To prevent this from happening, A decides
to increase the price of his products to P11.11 per piece. Thus, he sells his product to X
at P8.89 (i.e., P11.11 less 20%) and to Y at P11.11. As a result, his income/gross sales
would still be P20.00 105 (P8.89 + P11.11). The capacity, then, of business
establishments to revise their pricing strategy makes it possible for them not to suffer any
reduction in profits or income/gross sales, or, in the alternative, mitigate the reduction of
their profits or income/gross sales even after the passage of the law. In other words,
business establishments have the capacity to adjust their prices so that they may remain
profitable even under the operation of the assailed law. acADIT
The Dissent, however, states that
The explanation by the majority that private establishments can always increase their
prices to recover the mandatory discount will only encourage private establishments to
adjust their prices upwards to the prejudice of customers who do not enjoy the 20%
discount. It was likewise suggested that if a company increases its prices, despite the
application of the 20% discount, the establishment becomes more profitable than it was
before the implementation of R.A. 7432. Such an economic justification is self-defeating,
for more consumers will suffer from the price increase than will benefit from the 20%
discount. Even then, such ability to increase prices cannot legally validate a violation of
the eminent domain clause. 106
But, if it is possible that the business establishment, by adjusting its prices, will suffer no
reduction in its profits or income/gross sales (or suffer some reduction but continue to
operate profitably) despite giving the discount, what would be the basis to strike down the
law? If it is possible that the business establishment, by adjusting its prices, will not be
unduly burdened, how can there be a finding that the assailed law is an unconstitutional
exercise of police power or eminent domain?
That there may be a burden placed on business establishments or the consuming public
as a result of the operation of the assailed law is not, by itself, a ground to declare it
unconstitutional for this goes into the wisdom and expediency of the law. The cost of
most, if not all, regulatory measures of the government on business establishments is
ultimately passed on to the consumers but that, by itself, does not justify the wholesale
nullification of these measures. It is a basic postulate of our democratic system of
government that the Constitution is a social contract whereby the people have
surrendered their sovereign powers to the State for the common good. 107 All persons
may be burdened by regulatory measures intended for the common good or to serve
some important governmental interest, such as protecting or improving the welfare of a
special class of people for which the Constitution affords preferential concern. Indubitably,
the one assailing the law has the heavy burden of proving that the regulation is
unreasonable, oppressive or confiscatory, or has gone "too far" as to amount to a "taking."
Yet, here, the Dissent would have this Court nullify the law without any proof of such
nature. DCIEac
Further, this Court is not the proper forum to debate the economic theories or realities
that impelled Congress to shift from the tax credit to the tax deduction scheme. It is not
within our power or competence to judge which scheme is more or less burdensome to
business establishments or the consuming public and, thereafter, to choose which
scheme the State should use or pursue. The shift from the tax credit to tax deduction
scheme is a policy determination by Congress and the Court will respect it for as long as
389
there is no showing, as here, that the subject regulation has transgressed constitutional
limitations.
Unavoidably, the lack of evidence constrains the Dissent to rely on speculative and
hypothetical argumentation when it states that the 20% discount is a significant amount
and not a minimal loss (which erroneously assumes that the discount automatically
results in a loss when it is possible that the profit margin is greater than 20% and/or the
pricing strategy can be revised to prevent or mitigate any reduction in profits or
income/gross sales as illustrated above), 108 and not all private establishments make a
20% profit margin (which conversely implies that there are those who make more and,
thus, would not be greatly affected by this regulation). 109
In fine, because of the possible scenarios discussed above, we cannot assume that the
20% discount results in a permanent reduction in profits or income/gross sales, much less
that business establishments are forced to operate at a loss under the assailed law. And,
even if we gratuitously assume that the 20% discount results in some degree of reduction
in profits or income/gross sales, we cannot assume that such reduction is arbitrary,
oppressive or confiscatory. To repeat, there is no actual proof to back up this claim, and
it could be that the loss suffered by a business establishment was occasioned through its
fault or negligence in not adapting to the effects of the assailed law. The law uniformly
applies to all business establishments covered thereunder. There is, therefore, no unjust
discrimination as the aforesaid business establishments are faced with the same
constraints.
The necessity of proof is all the more pertinent in this case because, as similarly observed
by Justice Velasco in his Concurring Opinion,the law has been in operation for over nine
years now. However, the grim picture painted by petitioners on the unconscionable losses
to be indiscriminately suffered by business establishments, which should have led to the
closure of numerous business establishments, has not come to pass. ScaEIT
Verily, we cannot invalidate the assailed law based on assumptions and conjectures.
Without adequate proof, the presumption of constitutionality must prevail.
IV
At this juncture, we note that the Dissent modified its original arguments by including a
new paragraph, to wit:
Section 9, Article III of the 1987 Constitution speaks of private property without any
distinction. It does not state that there should be profit before the taking of property is
subject to just compensation. The private property referred to for purposes of taking could
be inherited, donated, purchased, mortgaged, or as in this case, part of the gross sales
of private establishments. They are all private property and any taking should be attended
by corresponding payment of just compensation. The 20% discount granted to senior
citizens belong to private establishments, whether these establishments make a profit or
suffer a loss. In fact, the 20% discount applies to non-profit establishments like country,
social, or golf clubs which are open to the public and not only for exclusive membership.
The issue of profit or loss to the establishments is immaterial. 110
Two things may be said of this argument. HDcaAI
First, it contradicts the rest of the arguments of the Dissent. After it states that the issue
of profit or loss is immaterial, the Dissent proceeds to argue that the 20% discount is not
a minimal loss 111 and that the 20% discount forces business establishments to operate
at a loss. 112 Even the obiter in Central Luzon Drug Corporation, 113 which the Dissent
essentially adopts and relies on, is premised on the permanent reduction of total revenues
and the loss that business establishments will be forced to suffer in arguing that the 20%
discount constitutes a "taking" under the power of eminent domain. Thus, when the
Dissent now argues that the issue of profit or loss is immaterial, it contradicts itself
because it later argues, in order to justify that there is a "taking" under the power of
eminent domain in this case, that the 20% discount forces business establishments to
suffer a significant loss or to operate at a loss.
Second, this argument suffers from the same flaw as the Dissent's original arguments. It
is an erroneous characterization of the 20% discount.
390
According to the Dissent, the 20% discount is part of the gross sales and, hence, private
property belonging to business establishments. However, as previously discussed, the
20% discount is not private property actually owned and/or used by the business
establishment. It should be distinguished from properties like lands or buildings actually
used in the operation of a business establishment which, if appropriated for public use,
would amount to a "taking" under the power of eminent domain.
Instead, the 20% discount is a regulatory measure which impacts the pricing and, hence,
the profitability of business establishments. At the time the discount is imposed, no
particular property of the business establishment can be said to be "taken." That is, the
State does not acquire or take anything from the business establishment in the way that
it takes a piece of private land to build a public road. While the 20% discount may form
part of the potential profits or income/gross sales 114 of the business establishment, as
similarly characterized by Justice Bersamin in his Concurring Opinion, potential profits or
income/gross sales are not private property, specifically cash or money, already
belonging to the business establishment. They are a mere expectancy because they are
potential fruits of the successful conduct of the business.
Prior to the sale of goods or services, a business establishment may be subject to State
regulations, such as the 20% senior citizen discount, which may impact the level or
amount of profits or income/gross sales that can be generated by such establishment.
For this reason, the validity of the discount is to be determined based on its overall effects
on the operations of the business establishment. DcCEHI
Again, as previously discussed, the 20% discount does not automatically result in a 20%
reduction in profits, or, to align it with the term used by the Dissent, the 20% discount
does not mean that a 20% reduction in gross sales necessarily results. Because (1) the
profit margin of a product is not necessarily less than 20%,(2) not all customers of a
business establishment are senior citizens, and (3) the establishment may revise its
pricing strategy, such reduction in profits or income/gross sales may be prevented or, in
the alternative, mitigated so that the business establishment continues to operate
profitably. Thus, even if we gratuitously assume that some degree of reduction in profits
or income/gross sales occurs because of the 20% discount, it does not follow that the
regulation is unreasonable, oppressive or confiscatory because the business
establishment may make the necessary adjustments to continue to operate profitably. No
evidence was presented by petitioners to show otherwise. In fact, no evidence was
presented by petitioners at all.
Justice Leonen, in his Concurring and Dissenting Opinion, characterizes "profits" (or
income/gross sales) as an inchoate right. Another way to view it, as stated by Justice
Velasco in his Concurring Opinion, is that the business establishment merely has a right
to profits. The Constitution adverts to it as the right of an enterprise to a reasonable return
on investment. 115 Undeniably, this right, like any other right, may be regulated under the
police power of the State to achieve important governmental objectives like protecting the
interests and improving the welfare of senior citizens.
It should be noted though that potential profits or income/gross sales are relevant in police
power and eminent domain analyses because they may, in appropriate cases, serve as
an indicia when a regulation has gone "too far" as to amount to a "taking" under the power
of eminent domain. When the deprivation or reduction of profits or income/gross sales is
shown to be unreasonable, oppressive or confiscatory, then the challenged governmental
regulation may be nullified for being a "taking" under the power of eminent domain. In
such a case, it is not profits or income/gross sales which are actually taken and
appropriated for public use. Rather, when the regulation causes an establishment to incur
losses in an unreasonable, oppressive or confiscatory manner, what is actually taken is
capital and the right of the business establishment to a reasonable return on investment.
If the business losses are not halted because of the continued operation of the regulation,
this eventually leads to the destruction of the business and the total loss of the capital
invested therein. But, again, petitioners in this case failed to prove that the subject
regulation is unreasonable, oppressive or confiscatory. ECHSDc
V.
391
The Dissent further argues that we erroneously used price and rate of return on
investment control laws to justify the senior citizen discount law. According to the Dissent,
only profits from industries imbued with public interest may be regulated because this is
a condition of their franchises. Profits of establishments without franchises cannot be
regulated permanently because there is no law regulating their profits. The Dissent
concludes that the permanent reduction of total revenues or gross sales of business
establishments without franchises is a taking of private property under the power of
eminent domain.
In making this argument, it is unfortunate that the Dissent quotes only a portion of the
ponencia
as police power measures. These laws generally regulate public utilities or
...116
The above paragraph, in full, states
exorbitant or unreasonable pricing as well as temper. corporate greed by controlling the
be properly viewed as belonging to the category of price regulatory measures which
affects the profitability of establishments subjected thereto.(Emphasis supplied)
The point of this paragraph is to simply show that the State has, in the past, regulated
prices and profits of business establishments. In other words, this type of regulatory
measures is traditionally recognized as police power measures so that the senior citizen
discount may be considered as a police power measure as well. What is more, the
substantial distinctions between price and rate of return on investment control laws vis-
-vis the senior citizen discount law provide greater reason to uphold the validity of the
senior citizen discount law. As previously discussed, the ability to adjust prices allows the
establishment subject to the senior citizen discount to prevent or mitigate any reduction
of profits or income/gross sales arising from the giving of the discount. In contrast,
establishments subject to price and rate of return on investment control laws cannot
adjust prices accordingly.
Certainly, there is no intention to say that price and rate of return on investment control
laws are the justification for the senior citizen discount law. Not at all. The justification for
the senior citizen discount law is the plenary powers of Congress. The legislative power
to regulate business establishments is broad and covers a wide array of areas and
subjects. It is well within Congress' legislative powers to regulate the profits or
income/gross sales of industries and enterprises, even those without franchises.For what
are franchises but mere legislative enactments? SaDICE
There is nothing in the Constitution that prohibits Congress from regulating the profits or
income/gross sales of industries and enterprises without franchises. On the contrary, the
392
social justice provisions of the Constitution enjoin the State to regulate the "acquisition,
ownership, use, and disposition" of property and its increments. 117 This may cover the
regulation of profits or income/gross sales of all businesses, without qualification, to attain
the objective of diffusing wealth in order to protect and enhance the right of all the people
to human dignity. 118 Thus, under the social justice policy of the Constitution, business
establishments may be compelled to contribute to uplifting the plight of vulnerable or
marginalized groups in our society provided that the regulation is not arbitrary, oppressive
or confiscatory, or is not in breach of some specific constitutional limitation.
When the Dissent, therefore, states that the "profits of private establishments which are
non-franchisees cannot be regulated permanently, and there is no such law regulating
their profits permanently," 119 it is assuming what it ought to prove. First, there are laws
which, in effect, permanently regulate profits or income/gross sales of establishments
without franchises, and RA 9257 is one such law. And, second, Congress can regulate
such profits or income/gross sales because, as previously noted, there is nothing in the
Constitution to prevent it from doing so. Here, again, it must be emphasized that
petitioners failed to present any proof to show that the effects of the assailed law on their
operations has been unreasonable, oppressive or confiscatory. SCHATc
The permanent regulation of profits or income/gross sales of business establishments,
even those without franchises, is not as uncommon as the Dissent depicts it to be.
For instance, the minimum wage law allows the State to set the minimum wage of
employees in a given region or geographical area. Because of the added labor costs
arising from the minimum wage, a permanent reduction of profits or income/gross sales
would result, assuming that the employer does not increase the prices of his goods or
services. To illustrate, suppose it costs a company P5.00 to produce a product and it sells
the same at P10.00 with a 50% profit margin. Later, the State increases the minimum
wage. As a result, the company incurs greater labor costs so that it now costs P7.00 to
produce the same product. The profit per product of the company would be reduced to
P3.00 with a profit margin of 30%.The net effect would be the same as in the earlier
example of granting a 20% senior citizen discount. As can be seen, the minimum wage
law could, likewise, lead to a permanent reduction of profits. Does this mean that the
minimum wage law should, likewise, be declared unconstitutional on the mere plea that
it results in a permanent reduction of profits? Taking it a step further, suppose the
company decides to increase the price of its product in order to offset the effects of the
increase in labor cost; does this mean that the minimum wage law, following the reasoning
of the Dissent, is unconstitutional because the consuming public is effectively made to
subsidize the wage of a group of laborers, i.e.,minimum wage earners?
The same reasoning can be adopted relative to the examples cited by the Dissent which,
according to it, are valid police power regulations. Article 157 of the Labor Code, Sections
19 and 18 of the Social Security Law, and Section 7 of the Pag-IBIG Fund Law would
effectively increase the labor cost of a business establishment. This would, in turn, be
integrated as part of the cost of its goods or services. Again, if the establishment does not
increase its prices, the net effect would be a permanent reduction in its profits or
income/gross sales. Following the reasoning of the Dissent that "any form of permanent
taking of private property (including profits or income/gross sales) 120 is an exercise of
eminent domain that requires the State to pay just compensation," 121 then these
statutory provisions would, likewise, have to be declared unconstitutional. It does not
matter that these benefits are deemed part of the employees' legislated wages because
the net effect is the same, that is, it leads to higher labor costs and a permanent reduction
in the profits or income/gross sales of the business establishments. 122 HcTEaA
The point then is this most, if not all, regulatory measures imposed by the State on
business establishments impact, at some level, the latter's prices and/or profits or
income/gross sales. 123 If the Court were to sustain the Dissent's theory, then a
wholesale nullification of such measures would inevitably result. The police power of the
State and the social justice provisions of the Constitution would, thus, be rendered
nugatory.
There is nothing sacrosanct about profits or income/gross sales. This, we made clear in
Carlos Superdrug Corporation: 124
393
xxx xxx xxx
utilities, continuously serve as a reminder that the right to property can be relinquished
upon the command of the State for the promotion of public good. ASIDTa
Without sufficient proof that Section 4(a) of R.A. No. 9257 is arbitrary, and that the
petitioners, the Court will refrain from quashing a legislative act. 125
In conclusion, we maintain that the correct rule in determining whether the subject
regulatory measure has amounted to a "taking" under the power of eminent domain is the
one laid down in Alalayan v. National Power Corporation 126 and followed in Carlos
Superdrug Corporation 127 consistent with long standing principles in police power and
eminent domain analysis. Thus, the deprivation or reduction of profits or income/gross
sales must be clearly shown to be unreasonable, oppressive or confiscatory. Under the
specific circumstances of this case, such determination can only be made upon the
presentation of competent proof which petitioners failed to do. A law, which has been in
operation for many years and promotes the welfare of a group accorded special concern
by the Constitution, cannot and should not be summarily invalidated on a mere allegation
that it reduces the profits or income/gross sales of business establishments. cDSaEH
WHEREFORE,the Petition is hereby DISMISSED for lack of merit.
SO ORDERED.
Sereno, C.J.,Abad, Villarama, Jr.,Perez, Mendoza, Reyes and Perlas-Bernabe, JJ.,
concur.
Carpio, J.,see dissenting opinion.
Velasco, Jr., J.,pls. see concurring opinion.
Leonardo-de Castro, J.,C.J., Sereno certifies that J. De Castro left her vote concurring w/
ponencia of J. Del Castillo.
Peralta, J., C.J.,Sereno certifies that J. Peralta left his vote concurring w/ ponencia of J.
Del Castillo.
Bersamin, J.,with concurring opinion.
Leonen, J.,see separate concurring opinion.
394
||| (Manila Memorial Park, Inc. v. Secretary of Social Welfare and Development, G.R. No.
175356, [December 3, 2013])
E. DUE PROCESS AND EMINENT DOMAIN
Article III, Section 9, 1987 Constitution
1. APO FRUITS VS. LBP 632 SCRA 727
EN BANC
[G.R. No. 164195. October 12, 2010.]
APO FRUITS CORPORATION and HIJO PLANTATION, INC., petitioners, vs. LAND
BANK OF THE PHILIPPINES, respondent.
RESOLUTION
BRION, J p:
We resolve the petitioners' motion for reconsideration addressing our Resolution of
December 4, 2009 whose dispositive portion directs:
WHEREFORE, the Court denies the petitioners' second motion for reconsideration (with
respect to the denial of the award of legal interest and attorney's fees), and reiterates the
decision dated February 6, 2007 and the resolution dated December 19, 2007 of the Third
Division.
For a fuller and clearer presentation and appreciation of this Resolution, we hark back to
the roots of this case.
Factual Antecedents
Apo Fruits Corporation (AFC) and Hijo Plantation, Inc. (HPI), together also referred to as
petitioners, were registered owners of vast tracks of land; AFC owned 640.3483 hectares,
while HPI owned 805.5308 hectares. On October 12, 1995, they voluntarily offered to sell
these landholdings to the government via Voluntary Offer to Sell applications filed with
the Department of Agrarian Reform (DAR).
On October 16, 1996, AFC and HPI received separate notices of land acquisition and
valuation of their properties from the DAR's Provincial Agrarian Reform Officer (PARO).
At the assessed valuation of P165,484.47 per hectare, AFC's land was valued at
P86,900,925.88, while HPI's property was valued at P164,478,178.14. HPI and AFC
rejected these valuations for being very low.
In its follow through action, the DAR requested the Land Bank of the Philippines (LBP) to
deposit P26,409,549.86 in AFC's bank account and P45,481,706.76 in HPI's bank
account, which amounts the petitioners then withdrew. The titles over AFC and HPI's
properties were thereafter cancelled, and new ones were issued on December 9, 1996 in
the name of the Republic of the Philippines. THDIaC
On February 14, 1997, AFC and HPI filed separate petitions for determination of just
compensation with the DAR Adjudication Board (DARAB). When the DARAB failed to act
on these petitions for more than three years, AFC and HPI filed separate complaints for
determination and payment of just compensation with the Regional Trial Court (RTC) of
Tagum City, acting as a Special Agrarian Court. These complaints were subsequently
consolidated.
On September 25, 2001, the RTC resolved the consolidated cases, fixing the just
compensation for the petitioners' 1,338.6027 hectares of land 1 at P1,383,179,000.00,
with interest on this amount at the prevailing market interest rates, computed from the
taking of the properties on December 9, 1996 until fully paid, minus the amounts the
petitioners already received under the initial valuation. The RTC also awarded attorney's
fees.
395
LBP moved for the reconsideration of the decision. The RTC, in its order of December 5,
2001, modified its ruling and fixed the interest at the rate of 12% per annum from the time
the complaint was filed until finality of the decision. The Third Division of this Court, in its
Decision of February 6, 2007, affirmed this RTC decision.
On motion for reconsideration, the Third Division issued its Resolution of December 19,
2007, modifying its February 6, 2007 Decision by deleting the 12% interest due on the
balance of the awarded just compensation. The Third Division justified the deletion by the
finding that the LBP did not delay the payment of just compensation as it had deposited
the pertinent amounts due to AFC and HPI within fourteen months after they filed their
complaints for just compensation with the RTC. The Court also considered that AFC had
already collected approximately P149.6 million, while HPI had already collected
approximately P262 million from the LBP. The Third Division also deleted the award of
attorney's fees.
All parties moved for the reconsideration of the modified ruling. The Court uniformly
denied all the motions in its April 30, 2008 Resolution. Entry of Judgment followed on May
16, 2008.
Notwithstanding the Entry of Judgment, AFC and HPI filed the following motions on May
28, 2008: (1) Motion for Leave to File and Admit Second Motion for Reconsideration; (2)
Second Motion for Reconsideration, with respect to the denial of the award of legal
interest and attorney's fees; and (3) Motion to Refer the Second Motion for
Reconsideration to the Honorable Court En Banc. ICcaST
The Third Division found the motion to admit the Second Motion for Reconsideration and
the motion to refer this second motion to the Court En Banc meritorious, and accordingly
referred the case to the Court En Banc. On September 8, 2009, the Court En Banc
accepted the referral.
The Court En Banc Resolution
On December 4, 2009, the Court En Banc, by a majority vote, denied the petitioners'
second motion for reconsideration based on two considerations.
First, the grant of the second motion for reconsideration runs counter to the immutability
of final decisions. Moreover, the Court saw no reason to recognize the case as an
exception to the immutability principle as the petitioners' private claim for the payment of
interest does not qualify as either a substantial or transcendental matter or an issue of
paramount public interest.
Second, on the merits, the petitioners are not entitled to recover interest on the just
compensation and attorney's fees because they caused the delay in the payment of the
just compensation due them; they erroneously filed their complaints with the DARAB
when they should have directly filed these with the RTC acting as an agrarian court.
Furthermore, the Court found it significant that the LBP deposited the pertinent amounts
in the petitioners' favor within fourteen months after the petitions were filed with the RTC.
Under these circumstances, the Court found no unreasonable delay on the part of LBP
to warrant the award of 12% interest.
The Chico-Nazario Dissent
Justice Minita V. Chico-Nazario, 2 the ponente of the original December 19, 2007
Resolution (deleting the 12% interest), dissented from the Court En Banc's December 4,
2009 Resolution.
On the issue of immutability of judgment, Justice Chico-Nazario pointed out that under
extraordinary circumstances, this Court has recalled entries of judgment on the ground of
substantial justice. Given the special circumstances involved in the present case, the
Court En Banc should have taken a second hard look at the petitioners' positions in their
second motion for reconsideration, and acted to correct the clearly erroneous December
19, 2007 Resolution.
Specifically, Justice Chico-Nazario emphasized the obligation of the State, in the exercise
of its inherent power of eminent domain, to pay just compensation to the owner of the
expropriated property. To be just, the compensation must not only be the correct amount
to be paid; it must also be paid within a reasonable time from the time the land is taken
from the owner. If not, the State must pay the landowner interest, by way of damages,
from the time the property was taken until just compensation is fully paid. This interest,
396
deemed a part of just compensation due, has been established by prevailing

jurisprudence to be 12% per annum.
On these premises, Justice Nazario pointed out that the government deprived the
petitioners of their property on December 9, 1996, and paid the balance of the just
compensation due them only on May 9, 2008. The delay of almost twelve years earned
the petitioners interest in the total amount of P1,331,124,223.05. IDSaAH
Despite this finding, Justice Chico-Nazario did not see it fit to declare the computed
interest to be totally due; she found it unconscionable to apply the full force of the law on
the LBP because of the magnitude of the amount due. She thus reduced the awarded
interest to P400,000,000.00, or approximately 30% of the computed interest.
The Present Motion for Reconsideration
In their motion to reconsider the Court En Banc's December 4, 2009 Resolution (the
present Motion for Reconsideration), the petitioners principally argue that: (a) the principle
of immutability of judgment does not apply since the Entry of Judgment was issued even
before the lapse of fifteen days from the parties' receipt of the April 30, 2008 Resolution
and the petitioners timely filed their second motion for reconsideration within fifteen days
from their receipt of this resolution; (b) the April 30, 2008 Resolution cannot be considered
immutable considering the special and compelling circumstances attendant to the present
case which fall within the exceptions to the principle of immutability of judgments; (c) the
legal interest due is at 12% per annum, reckoned from the time of the taking of the subject
properties and this rate is not subject to reduction. The power of the courts to equitably
reduce interest rates applies solely to liquidated damages under a contract and not to
interest set by the Honorable Court itself as due and owing in just compensation cases;
and (d) the Honorable Court's fears that the interest payments due to the petitioners will
produce more harm than good to the system of agrarian reform are misplaced and are
based merely on conjectures.
The Comment of the Land Bank of the Philippines
The LBP commented on the petitioners' motion for reconsideration on April 28, 2010. It
maintained that: (a) the doctrine of immutability of the decisions of the Supreme Court
clearly applies to the present case; (b) the LBP is not guilty of undue delay in the payment
of just compensation as the petitioners were promptly paid once the Court had determined
the final value of the properties expropriated; (c) the Supreme Court rulings invoked by
the petitioners are inapplicable to the present case; (d) since the obligation to pay just
compensation is not a forbearance of money, interest should commence only after the
amount due becomes ascertainable or liquidated, and the 12% interest per annum applies
only to the liquidated amount, from the date of finality of judgment; (e) the imposition of
12% interest on the balance of P971,409,831.68 is unwarranted because there was no
unjustified refusal by LBP to pay just compensation, and no contractual breach is
involved; (f) the deletion of the attorney's fees equivalent to 10% of the amount finally
awarded as just compensation is proper; (g) this case does not involve a violation of
substantial justice to justify the alteration of the immutable resolution dated December 19,
2007 that deleted the award of interest and attorney's fees.
The Court's Ruling
We find the petitioners' arguments meritorious and accordingly GRANT the present
motion for reconsideration.
Just compensation a Basic
Limitation on the State's
Power of Eminent Domain
At the heart of the present controversy is the Third Division's December 19, 2007
Resolution which held that the petitioners are not entitled to 12% interest on the balance
of the just compensation belatedly paid by the LBP. In the presently assailed December
4, 2009 Resolution, we affirmed the December 19, 2007 Resolution's findings that: (a)
the LBP deposited "pertinent amounts" in favor of the petitioners within fourteen months
after they filed their complaint for determination of just compensation; and (b) the LBP
had already paid the petitioners P411,769,168.32. We concluded then that these
circumstances refuted the petitioners' assertion of unreasonable delay on the part of the
LBP.
397
A re-evaluation of the circumstances of this case and the parties' arguments, viewed in
light of the just compensation requirement in the exercise of the State's inherent power of
eminent domain, compels us to re-examine our findings and conclusions.
Eminent domain is the power of the State to take private property for public use. 3 It is an
inherent power of State as it is a power necessary for the State's existence; it is a power
the State cannot do without. 4 As an inherent power, it does not need at all to be embodied
in the Constitution; if it is mentioned at all, it is solely for purposes of limiting what is
otherwise an unlimited power. The limitation is found in the Bill of Rights 5 that part of
the Constitution whose provisions all aim at the protection of individuals against the
excessive exercise of governmental powers.
Section 9, Article III of the 1987 Constitution (which reads "No private property shall be
taken for public use without just compensation.") provides two essential limitations to the
power of eminent domain, namely, that (1) the purpose of taking must be for public use
and (2) just compensation must be given to the owner of the private property. cCSDaI
It is not accidental that Section 9 specifies that compensation should be "just" as the
safeguard is there to ensure a balance property is not to be taken for public use at the
expense of private interests; the public, through the State, must balance the injury that
the taking of property causes through compensation for what is taken, value for value.
Nor is it accidental that the Bill of Rights is interpreted liberally in favor of the individual
and strictly against the government. The protection of the individual is the reason for the
Bill of Rights' being; to keep the exercise of the powers of government within reasonable
bounds is what it seeks. 6
The concept of "just compensation" is not new to Philippine constitutional law, 7 but is not
original to the Philippines; it is a transplant from the American Constitution. 8 It found
fertile application in this country particularly in the area of agrarian reform where the taking
of private property for distribution to landless farmers has been equated to the "public
use" that the Constitution requires. In Land Bank of the Philippines v. Orilla, 9 a valuation
case under our agrarian reform law, this Court had occasion to state:
Constitutionally, "just compensation" is the sum equivalent to the market value of the
property, broadly described as the price fixed by the seller in open market in the usual
and ordinary course of legal action and competition, or the fair value of the property as
between the one who receives and the one who desires to sell, it being fixed at the time
of the actual taking by the government. Just compensation is defined as the full and fair
equivalent of the property taken from its owner by the expropriator. It has been repeatedly
stressed by this Court that the true measure is not the taker's gain but the owner's loss.
The word "just" is used to modify the meaning of the word "compensation" to convey the
idea that the equivalent to be given for the property to be taken shall be real, substantial,
full and ample. 10 [Emphasis supplied.]
In the present case, while the DAR initially valued the petitioners' landholdings at a total
of P251,379,104.02, 11 the RTC, acting as a special agrarian court, determined the actual
value of the petitioners' landholdings to be P1,383,179,000.00. This valuation, a finding
of fact, has subsequently been affirmed by this Court, and is now beyond question. In
eminent domain terms, this amount is the "real, substantial, full and ample" compensation
the government must pay to be "just" to the landowners.
Significantly, this final judicial valuation is far removed from the initial valuation made by
the DAR; their values differ by P1,131,799,897.00 in itself a very substantial sum that
is roughly four times the original DAR valuation. We mention these valuations as they
indicate to us how undervalued the petitioners' lands had been at the start, particularly at
the time the petitioners' landholdings were "taken". This reason apparently compelled the
petitioners to relentlessly pursue their valuation claims all they way up to the level of this
Court.
While the LBP deposited the total amount of P71,891,256.62 into the petitioners' accounts
(P26,409,549.86 for AFC and P45,481,706.76 for HPI) at the time the landholdings were
taken, these amounts were mere partial payments that only amounted to 5% of the
P1,383,179,000.00 actual value of the expropriated properties. We point this aspect out
to show that the initial payments made by the LBP when the petitioners' landholdings
398
were taken, although promptly withdrawn by the petitioners, could not by any means be
considered a fair exchange of values at the time of taking; in fact, the LBP's actual deposit
could not be said to be substantial even from the original LBP valuation of
P251,379,103.90. IaEASH
Thus, the deposits might have been sufficient for purposes of the immediate taking of the
landholdings but cannot be claimed as amounts that would excuse the LBP from the
payment of interest on the unpaid balance of the compensation due. As discussed at
length below, they were not enough to compensate the petitioners for the potential income
the landholdings could have earned for them if no immediate taking had taken place.
Under the circumstances, the State acted oppressively and was far from "just" in their
position to deny the petitioners of the potential income that the immediate taking of their
properties entailed.
Just Compensation from the
Prism of the Element of Taking.
Apart from the requirement that compensation for expropriated land must be fair and
reasonable, compensation, to be "just," must also be made without delay. 12 Without
prompt payment, compensation cannot be considered "just" if the property is immediately
taken as the property owner suffers the immediate deprivation of both his land and its
fruits or income.
This is the principle at the core of the present case where the petitioners were made to
wait for more than a decade after the taking of their property before they actually received
the full amount of the principal of the just compensation due them. 13 What they have not
received to date is the income of their landholdings corresponding to what they would
have received had no uncompensated taking of these lands been immediately made. This
income, in terms of the interest on the unpaid principal, is the subject of the current
litigation.
We recognized in Republic v. Court of Appeals 14 the need for prompt payment and the
necessity of the payment of interest to compensate for any delay in the payment of
compensation for property already taken. We ruled in this case that:
The constitutional limitation of "just compensation" is considered to be the sum equivalent
to the market value of the property, broadly described to be the price fixed by the seller
in open market in the usual and ordinary course of legal action and competition or the fair
value of the property as between one who receives, and one who desires to sell, i[f] fixed
at the time of the actual taking by the government. Thus, if property is taken for public use
before compensation is deposited with the court having jurisdiction over the case, the
final compensation must include interest[s] on its just value to be computed from the time
the property is taken to the time when compensation is actually paid or deposited with the
court. In fine, between the taking of the property and the actual payment, legal interest[s]
accrue in order to place the owner in a position as good as (but not better than) the
position he was in before the taking occurred. 15 [Emphasis supplied.]
Aside from this ruling, Republic notably overturned the Court's previous ruling in National
Power Corporation v. Angas 16 which held that just compensation due for expropriated
properties is not a loan or forbearance of money but indemnity for damages for the delay
in payment; since the interest involved is in the nature of damages rather than earnings
from loans, then Art. 2209 of the Civil Code, which fixes legal interest at 6%, shall apply.
In Republic, the Court recognized that the just compensation due to the landowners for
their expropriated property amounted to an effective forbearance on the part of the State.
Applying the Eastern Shipping Lines ruling, 17 the Court fixed the applicable interest rate
at 12% per annum, computed from the time the property was taken until the full amount
of just compensation was paid, in order to eliminate the issue of the constant fluctuation
and inflation of the value of the currency over time. In the Court's own words:
The Bulacan trial court, in its 1979 decision, was correct in imposing interest[s] on the
zonal value of the property to be computed from the time petitioner instituted
condemnation proceedings and "took" the property in September 1969. This allowance
of interest on the amount found to be the value of the property as of the time of the taking
computed, being an effective forbearance, at 12% per annum should help eliminate the
399
issue of the constant fluctuation and inflation of the value of the currency over time. 18
[Emphasis supplied.] CAIHTE
We subsequently upheld Republic's 12% per annum interest rate on the unpaid
expropriation compensation in the following cases: Reyes v. National Housing Authority,
19 Land Bank of the Philippines v. Wycoco, 20 Republic v. Court of Appeals, 21 Land
Bank of the Philippines v. Imperial, 22 Philippine Ports Authority v. Rosales-Bondoc, 23
and Curata v. Philippine Ports Authority. 24
These were the established rulings that stood before this Court issued the currently
assailed Resolution of December 4, 2009. These would be the rulings this Court shall
reverse and de-establish if we maintain and affirm our ruling deleting the 12% interest on
the unpaid balance of compensation due for properties already taken.
Under the circumstances of the present case, we see no compelling reason to depart
from the rule that Republic firmly established. Let it be remembered that shorn of its
eminent domain and social justice aspects, what the agrarian land reform program
involves is the purchase by the government, through the LBP, of agricultural lands for
sale and distribution to farmers. As a purchase, it involves an exchange of values the
landholdings in exchange for the LBP's payment. In determining the just compensation
for this exchange, however, the measure to be borne in mind is not the taker's gain but
the owner's loss 25 since what is involved is the takeover of private property under the
State's coercive power. As mentioned above, in the value-for-value exchange in an
eminent domain situation, the State must ensure that the individual whose property is
taken is not shortchanged and must hence carry the burden of showing that the "just
compensation" requirement of the Bill of Rights is satisfied.
The owner's loss, of course, is not only his property but also its income-generating
potential. Thus, when property is taken, full compensation of its value must immediately
be paid to achieve a fair exchange for the property and the potential income lost. The just
compensation is made available to the property owner so that he may derive income from
this compensation, in the same manner that he would have derived income from his
expropriated property. If full compensation is not paid for property taken, then the State
must make up for the shortfall in the earning potential immediately lost due to the taking,
and the absence of replacement property from which income can be derived; interest on
the unpaid compensation becomes due as compliance with the constitutional mandate
on eminent domain and as a basic measure of fairness.
In the context of this case, when the LBP took the petitioners' landholdings without the
corresponding full payment, it became liable to the petitioners for the income the
landholdings would have earned had they not immediately been taken from the
petitioners. What is interesting in this interplay, under the developments of this case, is
that the LBP, by taking landholdings without full payment while holding on at the same
time to the interest that it should have paid, effectively used or retained funds that should
go to the landowners and thereby took advantage of these funds for its own account.
From this point of view, the December 19, 2007 Resolution deleting the award of 12%
interest is not only patently and legally wrong, but is also morally unconscionable for being
grossly unfair and unjust. If the interest on the just compensation due in reality the
equivalent of the fruits or income of the landholdings would have yielded had these lands
not been taken would be denied, the result is effectively a confiscatory action by this
Court in favor of the LBP. We would be allowing the LBP, for twelve long years, to have
free use of the interest that should have gone to the landowners. Otherwise stated, if we
continue to deny the petitioners' present motion for reconsideration, we would illogically
and without much thought to the fairness that the situation demands uphold the
interests of the LBP, not only at the expense of the landowners but also that of substantial
justice as well.
Lest this Court be a party to this monumental unfairness in a social program aimed at
fostering balance in our society, we now have to ring the bell that we have muted in the
past, and formally declare that the LBP's position is legally and morally wrong. To do less
than this is to leave the demands of the constitutional just compensation standard (in
terms of law) and of our own conscience (in terms of morality) wanting and unsatisfied.
400
The Delay in Payment Issue

Separately from the demandability of interest because of the failure to fully pay for
property already taken, a recurring issue in the case is the attribution of the delay. ITSCED
That delay in payment occurred is not and cannot at all be disputed. While the LBP
claimed that it made initial payments of P411,769,168.32 (out of the principal sum due of
P1,383,179,000.00), the undisputed fact is that the petitioners were deprived of their
lands on December 9, 1996 (when titles to their landholdings were cancelled and
transferred to the Republic of the Philippines), and received full payment of the principal
amount due them only on May 9, 2008.
In the interim, they received no income from their landholdings because these
landholdings had been taken. Nor did they receive adequate income from what should
replace the income potential of their landholdings because the LBP refused to pay interest
while withholding the full amount of the principal of the just compensation due by claiming
a grossly low valuation. This sad state continued for more than a decade. In any language
and by any measure, a lengthy delay in payment occurred.
An important starting point in considering attribution for the delay is that the petitioners
voluntarily offered to sell their landholdings to the government's land reform program; they
themselves submitted their Voluntary Offer to Sell applications to the DAR, and they fully
cooperated with the government's program. The present case therefore is not one where
substantial conflict arose on the issue of whether expropriation is proper; the petitioners
voluntarily submitted to expropriation and surrendered their landholdings, although they
contested the valuation that the government made.
Presumably, had the landholdings been properly valued, the petitioners would have
accepted the payment of just compensation and there would have been no need for them
to go to the extent of filing a valuation case. But, as borne by the records, the petitioners'
lands were grossly undervalued by the DAR, leaving the petitioners with no choice but to
file actions to secure what is justly due them.
The DAR's initial gross undervaluation started the cycle of court actions that followed,
where the LBP eventually claimed that it could not be faulted for seeking judicial recourse
to defend the government's and its own interests in light of the petitioners' valuation
claims. This LBP claim, of course, conveniently forgets that at the root of all these
valuation claims and counterclaims was the initial gross undervaluation by DAR that the
LBP stoutly defended. At the end, this undervaluation was proven incorrect by no less
than this Court; the petitioners were proven correct in their claim, and the correct valuation
more than five-fold the initial DAR valuation was decreed and became final.
All these developments cannot now be disregarded and reduced to insignificance. In
blunter terms, the government and the LBP cannot now be heard to claim that they were
simply protecting their interests when they stubbornly defended their undervalued
positions before the courts. The more apt and accurate statement is that they adopted a
grossly unreasonable position and the adverse developments that followed, particularly
the concomitant delay, should be directly chargeable to them.
To be sure, the petitioners were not completely correct in the legal steps they took in their
valuation claims. They initially filed their valuation claim before the DARAB instead of
immediately seeking judicial intervention. The DARAB, however, contributed its share to
the petitioners' error when it failed or refused to act on the valuation petitions for more
than three (3) years. Thus, on top of the DAR undervaluation was the DARAB inaction
after the petitioners' landholdings had been taken. This Court's Decision of February 6,
2007 duly noted this and observed: EIDaAH
It is not controverted that this case started way back on 12 October 1995, when AFC and
HPI voluntarily offered to sell the properties to the DAR. In view of the failure of the parties
to agree on the valuation of the properties, the Complaint for Determination of Just
Compensation was filed before the DARAB on 14 February 1997. Despite the lapse of
more than three years from the filing of the complaint, the DARAB failed to render a
decision on the valuation of the land. Meantime, the titles over the properties of AFC and
HPI had already been cancelled and in their place a new certificate of title was issued in
the name of the Republic of the Philippines, even as far back as 9 December 1996. A
period of almost 10 years has lapsed. For this reason, there is no dispute that this case
401
has truly languished for a long period of time, the delay being mainly attributable to both
official inaction and indecision, particularly on the determination of the amount of just
compensation, to the detriment of AFC and HPI, which to date, have yet to be fully
compensated for the properties which are already in the hands of farmer-beneficiaries,
who, due to the lapse of time, may have already converted or sold the land awarded to
them.
Verily, these two cases could have been disposed with dispatch were it not for LBP's
counsel causing unnecessary delay. At the inception of this case, DARAB, an agency of
the DAR which was commissioned by law to determine just compensation, sat on the
cases for three years, which was the reason that AFC and HPI filed the cases before the
RTC. We underscore the pronouncement of the RTC that "the delay by DARAB in the
determination of just compensation could only mean the reluctance of the Department of
Agrarian Reform and the Land Bank of the Philippines to pay the claim of just
compensation by corporate landowners."
To allow the taking of landowners' properties, and to leave them empty-handed while
government withholds compensation is undoubtedly oppressive. [Emphasis supplied.]
These statements cannot but be true today as they were when we originally decided the
case and awarded 12% interest on the balance of the just compensation due. While the
petitioners were undisputedly mistaken in initially seeking recourse through the DAR, this
agency itself hence, the government committed a graver transgression when it failed
to act at all on the petitioners' complaints for determination of just compensation.
In sum, in a balancing of the attendant delay-related circumstances of this case, delay
should be laid at the doorsteps of the government, not at the petitioners'. We conclude,
too, that the government should not be allowed to exculpate itself from this delay and
should suffer all the consequences the delay caused.
The LBP's arguments on the
applicability of cases imposing
12% interest
The LBP claims in its Comment that our rulings in Republic v. Court of Appeals, 26 Reyes
v. National Housing Authority, 27 and Land Bank of the Philippines v. Imperial, 28 cannot
be applied to the present case.
According to the LBP, Republic is inapplicable because, first, the landowners in Republic
remained unpaid, notwithstanding the fact that the award for just compensation had
already been fixed by final judgment; in the present case, the Court already
acknowledged that "pertinent amounts" were deposited in favor of the landowners within
14 months from the filing of their complaint. Second, while Republic involved an ordinary
expropriation case, the present case involves expropriation for agrarian reform. Finally,
the just compensation in Republic remained unpaid notwithstanding the finality of
judgment, while the just compensation in the present case was immediately paid in full
after LBP received a copy of the Court's resolution.
We find no merit in these assertions. SHECcD
As we discussed above, the "pertinent amounts" allegedly deposited by LBP were mere
partial payments that amounted to a measly 5% of the actual value of the properties
expropriated. They could be the basis for the immediate taking of the expropriated
property but by no stretch of the imagination can these nominal amounts be considered
"pertinent" enough to satisfy the full requirement of just compensation i.e., the full and
fair equivalent of the expropriated property, taking into account its income potential and
the foregone income lost because of the immediate taking.
We likewise find no basis to support the LBP's theory that Republic and the present case
have to be treated differently because the first involves a "regular" expropriation case,
while the present case involves expropriation pursuant to the country's agrarian reform
program. In both cases, the power of eminent domain was used and private property was
taken for public use. Why one should be different from the other, so that the just
compensation ruling in one should not apply to the other, truly escapes us. If there is to
402
be a difference, the treatment of agrarian reform expropriations should be stricter and on

a higher plane because of the government's societal concerns and objectives. To be sure,
the government cannot attempt to remedy the ills of one sector of society by sacrificing
the interests of others within the same society.
Finally, we note that the finality of the decision (that fixed the value of just compensation)
in Republic was not a material consideration for the Court in awarding the landowners
12% interest. The Court, in Republic, simply affirmed the RTC ruling imposing legal
interest on the amount of just compensation due. In the process, the Court determined
that the legal interest should be 12% after recognizing that the just compensation due
was effectively a forbearance on the part of the government. Had the finality of the
judgment been the critical factor, then the 12% interest should have been imposed from
the time the RTC decision fixing just compensation became final. Instead, the 12%
interest was imposed from the time that the Republic commenced condemnation
proceedings and "took" the property.
The LBP additionally asserts that the petitioners erroneously relied on the ruling in Reyes
v. National Housing Authority. The LBP claims that we cannot apply Reyes because it
involved just compensation that remained unpaid despite the finality of the expropriation
decision. LBP's point of distinction is that just compensation was immediately paid in the
present case upon the Court's determination of the actual value of the expropriated
properties. LBP claims, too, that in Reyes, the Court established that the refusal of the
NHA to pay just compensation was unfounded and unjustified, whereas the LBP in the
present case clearly demonstrated its willingness to pay just compensation. Lastly, in
Reyes, the records showed that there was an outstanding balance that ought to be paid,
while the element of an outstanding balance is absent in the present case.
Contrary to the LBP's opinion, the imposition of the 12% interest in Reyes did not depend
on either the finality of the decision of the expropriation court, or on the finding that the
NHA's refusal to pay just compensation was unfounded and unjustified. Quite clearly, the
Court imposed 12% interest based on the ruling in Republic v. Court of Appeals that ". . .
if property is taken for public use before compensation is deposited with the court having
jurisdiction over the case,the final compensation must include interest[s] on its just value
to be computed from the time the property is taken to the time when compensation is
actually paid or deposited with the court. In fine, between the taking of the property and
the actual payment, legal interest[s] accrue in order to place the owner in a position as
good as (but not better than) the position he was in before the taking occurred." 29 This
is the same legal principle applicable to the present case, as discussed above.
While the LBP immediately paid the remaining balance on the just compensation due to
the petitioners after this Court had fixed the value of the expropriated properties, it
overlooks one essential fact from the time that the State took the petitioners' properties
until the time that the petitioners were fully paid, almost 12 long years passed. This is the
rationale for imposing the 12% interest in order to compensate the petitioners for the
income they would have made had they been properly compensated for their properties
at the time of the taking. DaScAI
Finally, the LBP insists that the petitioners quoted our ruling in Land Bank of the
Philippines v. Imperial out of context. According to the LBP, the Court imposed legal
interest of 12% per annum only after December 31, 2006, the date when the decision on
just compensation became final.
The LBP is again mistaken. The Imperial case involved land that was expropriated
pursuant to Presidential Decree No. 27, 30 and fell under the coverage of DAR
Administrative Order (AO) No. 13. 31 This AO provided for the payment of a 6% annual
interest if there is any delay in payment of just compensation. However, Imperial was
decided in 2007 and AO No. 13 was only effective up to December 2006. Thus, the Court,
relying on our ruling in the Republic case, applied the prevailing 12% interest ruling to the
period when the just compensation remained unpaid after December 2006. It is for this
reason that December 31, 2006 was important, not because it was the date of finality of
the decision on just compensation.
The 12% Interest Rate and
the Chico-Nazario Dissent
403
To fully reflect the concerns raised in this Court's deliberations on the present case, we
feel it appropriate to discuss the Justice Minita Chico-Nazario's dissent from the Court's
December 4, 2009 Resolution.
While Justice Chico-Nazario admitted that the petitioners were entitled to the 12%
interest, she saw it appropriate to equitably reduce the interest charges from
P1,331,124,223.05 to P400,000,000.00. In support of this proposal, she enumerated
various cases where the Court, pursuant to Article 1229 of the Civil Code, 32 equitably
reduced interest charges.
We differ with our esteemed colleague's views on the application of equity.
While we have equitably reduced the amount of interest awarded in numerous cases in
the past, those cases involved interest that was essentially consensual in nature, i.e.,
interest stipulated in signed agreements between the contracting parties. In contrast, the
interest involved in the present case "runs as a matter of law and follows as a matter of
course from the right of the landowner to be placed in as good a position as money can
accomplish, as of the date of taking." 33
Furthermore, the allegedly considerable payments made by the LBP to the petitioners
cannot be a proper premise in denying the landowners the interest due them under the
law and established jurisprudence. If the just compensation for the landholdings is
considerable, this compensation is not undue because the landholdings the owners gave
up in exchange are also similarly considerable AFC gave up an aggregate landholding
of 640.3483 hectares, while HPI's gave up 805.5308 hectares. When the petitioners
surrendered these sizeable landholdings to the government, the incomes they gave up
were likewise sizeable and cannot in any way be considered miniscule. The incomes due
from these properties, expressed as interest, are what the government should return to
the petitioners after the government took over their lands without full payment of just
compensation. In other words, the value of the landholdings themselves should be
equivalent to the principal sum of the just compensation due; interest is due and should
be paid to compensate for the unpaid balance of this principal sum after taking has been
completed. This is the compensation arrangement that should prevail if such
compensation is to satisfy the constitutional standard of being "just." TEAcCD
Neither can LBP's payment of the full compensation due before the finality of the judgment
of this Court justify the reduction of the interest due them. To rule otherwise would be to
forget that the petitioners had to wait twelve years from the time they gave up their lands
before the government fully paid the principal of the just compensation due them. These
were twelve years when they had no income from their landholdings because these
landholdings have immediately been taken; no income, or inadequate income, accrued
to them from the proceeds of compensation payment due them because full payment has
been withheld by government.
If the full payment of the principal sum of the just compensation is legally significant at all
under the circumstances of this case, the significance is only in putting a stop to the
running of the interest due because the principal of the just compensation due has been
paid. To close our eyes to these realities is to condone what is effectively a confiscatory
action in favor of the LBP.
That the legal interest due is now almost equivalent to the principal to be paid is not per
se an inequitable or unconscionable situation, considering the length of time the interest
has remained unpaid almost twelve long years. From the perspective of interest
income, twelve years would have been sufficient for the petitioners to double the principal,
even if invested conservatively, had they been promptly paid the principal of the just
compensation due them. Moreover, the interest, however enormous it may be, cannot be
inequitable and unconscionable because it resulted directly from the application of law
and jurisprudence standards that have taken into account fairness and equity in setting
the interest rates due for the use or forebearance of money.
If the LBP sees the total interest due to be immense, it only has itself to blame, as this
interest piled up because it unreasonably acted in its valuation of the landholdings and
consequently failed to promptly pay the petitioners. To be sure, the consequences of this
failure i.e., the enormity of the total interest due and the alleged financial hemorrhage
the LBP may suffer should not be the very reason that would excuse it from full
404
compliance. To so rule is to use extremely flawed logic. To so rule is to disregard the

question of how the LBP, a government financial institution that now professes difficulty
in paying interest at 12% per annum, managed the funds that it failed to pay the petitioners
for twelve long years.
It would be utterly fallacious, too, to argue that this Court should tread lightly in imposing
liabilities on the LBP because this bank represents the government and, ultimately, the
public interest. Suffice it to say that public interest refers to what will benefit the public,
not necessarily the government and its agencies whose task is to contribute to the benefit
of the public. Greater public benefit will result if government agencies like the LBP are
conscientious in undertaking its tasks in order to avoid the situation facing it in this case.
Greater public interest would be served if it can contribute to the credibility of the
government's land reform program through the conscientious handling of its part of this
program.
As our last point, equity and equitable principles only come into full play when a gap exists
in the law and jurisprudence. 34 As we have shown above, established rulings of this
Court are in place for full application to the present case. There is thus no occasion for
the equitable consideration that Justice Chico-Nazario suggested.
The Amount Due the Petitioners
as Just Compensation
As borne by the records, the 12% interest claimed is only on the difference between the
price of the expropriated lands (determined with finality to be P1,383,179,000.00) and the
amount of P411,769,168.32 already paid to the petitioners. The difference between these
figures amounts to the remaining balance of P971,409,831.68 that was only paid on May
9, 2008. DITEAc
As above discussed, this amount should bear interest at the rate of 12% per annum from
the time the petitioners' properties were taken on December 9, 1996 up to the time of
payment. At this rate, the LBP now owes the petitioners the total amount of One Billion
Three Hundred Thirty-One Million One Hundred Twenty-Four Thousand Two Hundred
Twenty-Three and 05/100 Pesos (P1,331,124,223.05), computed as follows:
Just Compensation
P971,409,831.68
Legal Interest from 12/09/1996
To 05/09/2008 @ 12%/annum
12/09/1996 to 12/31/1996 23 days

7,345,455.17
01/01/1997 to 12/31/2007 11 years
1,282,260,977.82
01/01/2008 to 05/09/2008 130 days
41,517,790.07
P1,331,124,223.05 35
=============
The Immutability of Judgment Issue
405
As a rule, a final judgment may no longer be altered, amended or modified, even if the
alteration, amendment or modification is meant to correct what is perceived to be an
erroneous conclusion of fact or law and regardless of what court, be it the highest Court
of the land, rendered it. 36 In the past, however, we have recognized exceptions to this
rule by reversing judgments and recalling their entries in the interest of substantial justice
and where special and compelling reasons called for such actions.
Notably, in San Miguel Corporation v. National Labor Relations Commission, 37 Galman
v. Sandiganbayan, 38 Philippine Consumers Foundation v. National Telecommunications
Commission, 39 and Republic v. de los Angeles, 40 we reversed our judgment on the
second motion for reconsideration, while in Vir-Jen Shipping and Marine Services v.
National Labor Relations Commission, 41 we did so on a third motion for reconsideration.
In Cathay Pacific v. Romillo 42 and Cosio v. de Rama, 43 we modified or amended our
ruling on the second motion for reconsideration. More recently, in the cases of Muoz v.
Court of Appeals, 44 Tan Tiac Chiong v. Hon. Cosico, 45 Manotok IV v. Barque, 46 and
Barnes v. Padilla, 47 we recalled entries of judgment after finding that doing so was in the
interest of substantial justice. In Barnes, we said:
. . . Phrased elsewise, a final and executory judgment can no longer be attacked by any
of the parties or be modified, directly or indirectly, even by the highest court of the land.
However, this Court has relaxed this rule in order to serve substantial justice considering
(a) matters of life, liberty, honor or property, (b) the existence of special or compelling
circumstances, (c) the merits of the case, (d) a cause not entirely attributable to the fault
or negligence of the party favored by the suspension of the rules, (e) a lack of any showing
that the review sought is merely frivolous and dilatory, and (f) the other party will not be
unjustly prejudiced thereby.
Invariably, rules of procedure should be viewed as mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result in technicalities
that tend to frustrate rather than promote substantial justice, must always be eschewed.
Even the Rules of Court reflects this principle. The power to suspend or even disregard
rules can be so pervasive and compelling as to alter even that which this Court itself had
already declared to be final. 48 [Emphasis supplied.]
That the issues posed by this case are of transcendental importance is not hard to discern
from these discussions. A constitutional limitation, guaranteed under no less than the allimportant Bill of Rights, is at stake in this case: how can compensation in an eminent
domain be "just" when the payment for the compensation for property already taken has
been unreasonably delayed? To claim, as the assailed Resolution does, that only private
interest is involved in this case is to forget that an expropriation involves the government
as a necessary actor. It forgets, too, that under eminent domain, the constitutional limits
or standards apply to government who carries the burden of showing that these standards
have been met. Thus, to simply dismiss this case as a private interest matter is an
extremely shortsighted view that this Court should not leave uncorrected. CaTSEA
As duly noted in the above discussions, this issue is not one of first impression in our
jurisdiction; the consequences of delay in the payment of just compensation have been
settled by this Court in past rulings. Our settled jurisprudence on the issue alone accords
this case primary importance as a contrary ruling would unsettle, on the flimsiest of
grounds, all the rulings we have established in the past.
More than the stability of our jurisprudence, the matter before us is of transcendental
importance to the nation because of the subject matter involved agrarian reform, a
societal objective that the government has unceasingly sought to achieve in the past half
century. This reform program and its objectives would suffer a major setback if the
government falters or is seen to be faltering, wittingly or unwittingly, through lack of good
faith in implementing the needed reforms. Truly, agrarian reform is so important to the
national agenda that the Solicitor General, no less, pointedly linked agricultural lands, its
ownership and abuse, to the idea of revolution. 49 This linkage, to our mind, remains valid
406
even if the landowner, not the landless farmer, is at the receiving end of the distortion of
the agrarian reform program.
As we have ruled often enough, rules of procedure should not be applied in a very rigid,
technical sense; rules of procedure are used only to help secure, not override, substantial
justice. 50 As we explained in Ginete v. Court of Appeals: 51
Let it be emphasized that the rules of procedure should be viewed as mere tools designed
to facilitate the attainment of justice. Their strict and rigid application, which would result
in technicalities that tend to frustrate rather than promote substantial justice, must always
be eschewed. Even the Rules of Court reflect this principle. The power to suspend or
even disregard rules can be so pervasive and compelling as to alter even that which this
Court itself has already declared to be final, as we are now constrained to do in the instant
case.
xxx xxx xxx
The emerging trend in the rulings of this Court is to afford every party litigant the amplest
opportunity for the proper and just determination of his cause, free from the constraints
of technicalities. Time and again, this Court has consistently held that rules must not be
applied rigidly so as not to override substantial justice. 52 [Emphasis supplied.]
Similarly, in de Guzman v. Sandiganbayan, 53 we had occasion to state:
The Rules of Court was conceived and promulgated to set forth guidelines in the
dispensation of justice but not to bind and chain the hand that dispenses it, for otherwise,
courts will be mere slaves to or robots of technical rules, shorn of judicial discretion. That
is precisely why courts in rendering justice have always been, as they ought to be,
conscientiously guided by the norm that when on the balance, technicalities take a
backseat against substantive rights, and not the other way around. Truly then,
technicalities, in the appropriate language of Justice Makalintal, "should give way to the
realities of the situation". 54 [Emphasis supplied.]
We made the same recognition in Barnes, 55 on the underlying premise that a court's
primordial and most important duty is to render justice; in discharging the duty to render
substantial justice, it is permitted to re-examine even a final and executory judgment.
aSTHDc
Based on all these considerations, particularly the patently illegal and erroneous
conclusion that the petitioners are not entitled to 12% interest, we find that we are dutybound to re-examine and overturn the assailed Resolution. We shall completely and
inexcusably be remiss in our duty as defenders of justice if, given the chance to make the
rectification, we shall let the opportunity pass.
Attorney's Fees
We are fully aware that the RTC has awarded the petitioners attorney's fees when it fixed
the just compensation due and decreed that interest of 12% should be paid on the balance
outstanding after the taking of the petitioners' landholdings took place. The petitioners,
however, have not raised the award of attorney's fees as an issue in the present motion
for reconsideration. For this reason, we shall not touch on this issue at all in this
Resolution.
WHEREFORE, premises considered, we GRANT the petitioners' motion for
reconsideration. The Court En Banc's Resolution dated December 4, 2009, as well as the
Third Division's Resolutions dated April 30, 2008 and December 19, 2007, are hereby
REVERSED and SET ASIDE.
The respondent Land Bank of the Philippines is hereby ORDERED to pay petitioners Apo
Fruits Corporation and Hijo Plantation, Inc. interest at the rate of 12% per annum on the
unpaid balance of the just compensation, computed from the date the Government took
the properties on December 9, 1996, until the respondent Land Bank of the Philippines
paid on May 9, 2008 the balance on the principal amount.
407
Unless the parties agree to a shorter payment period, payment shall be in monthly
installments at the rate of P60,000,000.00 per month until the whole amount owing,
including interest on the outstanding balance, is fully paid.
Costs against the respondent Land Bank of the Philippines.
SO ORDERED.
Carpio Morales, Velasco, Jr., Del Castillo, Villarama, Jr., Perez, Mendoza and Sereno,
JJ., concur.
Corona, C.J. and Nachura, J., join the dissent of J. Bersamin.
Carpio and Abad, JJ., are on wellness leave.
Leonardo-de Castro, J., I maintain my vote in the December 4, 2009 Resolution.
Peralta, J., is on leave.
Bersamin, J., I dissent.
||| (Apo Fruits Corporation v. Land Bank of the Phils., G.R. No. 164195 (Resolution),
[October 12, 2010], 647 PHIL 251-298)
2. ABAD VS. FILHOMES REALTY 636 SCRA 247 (2010)
THIRD DIVISION
[G.R. No. 189239. November 24, 2010.]
SPOUSES LETICIA & JOSE ERVIN ABAD, SPS. ROSARIO AND ERWIN COLLANTES,
SPS. RICARDO AND FELITA ANN, SPS. ELSIE AND ROGER LAS PIAS, LINDA
LAYDA, RESTITUTO MARIANO, SPS. ARNOLD AND MIRIAM MERCINES, SPS.
LUCITA AND WENCESLAO A. RAPACON, SPS. ROMEO AND EMILYN HULLEZA, LUZ
MIPANTAO, SPS. HELEN AND ANTHONY TEVES, MARLENE TUAZON, SPS. ZALDO
AND MIA SALES, SPS. JOSEFINA AND JOEL YBERA, SPS. LINDA AND JESSIE
CABATUAN, SPS. WILMA AND MARIO ANDRADA, SPS. RAYMUNDO AND ARSENIA
LELIS, FREDY AND SUSANA PILONEO, petitioners, vs. FIL-HOMES REALTY and
DEVELOPMENT CORPORATION and MAGDIWANG REALTY CORPORATION,
respondents.
DECISION
CARPIO MORALES, J p:
Fil-Homes Realty and Development Corporation and Magdiwang Realty Corporation
(respondents), co-owners of two lots situated in Sucat, Paraaque City and covered by
Transfer Certificates of Title Nos. 21712 and 21713, filed a complaint for unlawful detainer
on May 7, 2003 against above-named petitioners before the Paraaque Metropolitan Trial
Court (MeTC).
Respondents alleged that petitioners, through tolerance, had occupied the subject lots
since 1980 but ignored their repeated demands to vacate them.
Petitioners countered that there is no possession by tolerance for they have been in
adverse, continuous and uninterrupted possession of the lots for more than 30 years; and
that respondent's predecessor-in-interest, Pilipinas Development Corporation, had no title
to the lots. In any event, they contend that the question of ownership must first be settled
before the issue of possession may be resolved.
During the pendency of the case or on June 30, 2004, the City of Paraaque filed
expropriation proceedings covering the lots before the Regional Trial Court of Paraaque
with the intention of establishing a socialized housing project therein for distribution to the
occupants including petitioners. A writ of possession was consequently issued and a
Certificate of Turn-over given to the City.
Branch 77 of the MeTC, by Decision of March 3, 2008, rendered judgment in the unlawful
detainer case against petitioners, disposing as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants Leticia and Ervin Abad et als. ordering the latter and all persons claiming
408
rights under them to VACATE and SURRENDER possession of the premises (Lots
covered by TCT NOS. (71065) 21712 and (71066) 21713 otherwise known as Purok I
Silverio Compound, Barangay San Isidro, Paraaque City to plaintiff and to PAY the said
plaintiff as follows: aSEDHC
1. The reasonable compensation in the amount of P20,000.00 a month commencing
November 20, 2002 and every month thereafter until the defendants shall have finally
vacated the premises and surrender peaceful possession thereof to the plaintiff;
2. P20,000.00 as and for attorney's fees, and finally;
3. Costs of suit.
SO ORDERED. 1 (emphasis in the original)
The MeTC held that as no payment had been made to respondents for the lots, they still
maintain ownership thereon. It added that petitioners cannot claim a better right by virtue
of the issuance of a Writ of Possession for the project beneficiaries have yet to be named.
On appeal, the Regional Trial Court (RTC), by Decision of September 4, 2008, 2 reversed
the MeTC decision and dismissed respondents' complaint in this wise:
. . . The court a quo ruled that the case filed by plaintiffs (respondents herein) is unlawful
detainer as shown by the allegations of the Complaint. The ruling of the court a quo is not
accurate. It is not the allegations of the Complaint that finally determine whether a case
is unlawful detainer, rather it is the evidence in the case.
Unlawful detainer requires the significant element of "tolerance". Tolerance of the
occupation of the property must be present right from the start of the defendants'
possession. The phrase "from the start of defendants' possession" is significant. When
there is no "tolerance" right from the start of the possession sought to be recovered, the
case of unlawful detainer will not prosper. 3 (emphasis in the original; underscoring
supplied)
The RTC went on to rule that the issuance of a writ of possession in favor of the City bars
the continuation of the unlawful detainer proceedings, and since the judgment had already
been rendered in the expropriation proceedings which effectively turned over the lots to
the City, the MeTC has no jurisdiction to "disregard the . . . final judgment and writ of
possession" due to non-payment of just compensation:
The Writ of Possession shows that possession over the properties subject of this case
had already been given to the City of Paraaque since January 19, 2006 after they were
expropriated. It is serious error for the court a quo to rule in the unlawful detainer case
that Magdiwang Realty Corporation and Fil-Homes Realty and Development Corporation
could still be given possession of the properties which were already expropriated in favor
of the City of Paraaque.
There is also another serious lapse in the ruling of the court a quo that the case for
expropriation in the Regional Trial Court would not bar, suspend or abate the ejectment
proceedings. The court a quo had failed to consider the fact that the case for expropriation
was already decided by the Regional Trial Court, Branch 196 way back in the year 2006
or 2 years before the court a quo rendered its judgment in the unlawful detainer case in
the year 2008. In fact, there was already a Writ of Possession way back in the year 1996
(sic) issued in the expropriation case by the Regional Trial Court, Branch 196. The court
a quo has no valid reason to disregard the said final judgment and the writ of possession
already issued by the Regional Trial Court in favor of the City of Paraaque and against
Magdiwang Realty Corporation and Fil-Homes Realty Development Corporation and
make another judgment concerning possession of the subject properties contrary to the
final judgment of the Regional Trial Court, Branch 196. 4 (emphasis in the original)
DACcIH
409
Before the Court of Appeals where respondents filed a petition for review, they maintained
that respondents' "act of allowing several years to pass without requiring [them] to vacate
nor filing an ejectment case against them amounts to acquiescence or tolerance of their
possession." 5
By Decision of May 27, 2009, 6 the appellate court, noting that petitioners did not present
evidence to rebut respondents' allegation of possession by tolerance, and considering
petitioners' admission that they commenced occupation of the property without the
permission of the previous owner Pilipinas Development Corporation as indicium of
tolerance by respondents' predecessor-in-interest, ruled in favor of respondents. Held the
appellate court:
Where the defendant's entry upon the land was with plaintiff's tolerance from the date and
fact of entry, unlawful detainer proceedings may be instituted within one year from the
demand on him to vacate upon demand. The status of such defendant is analogous to
that of a tenant or lessee, the term of whose lease, has expired but whose occupancy is
continued by the tolerance of the lessor. The same rule applies where the defendant
purchased the house of the former lessee, who was already in arrears in the payment of
rentals, and thereafter occupied the premises without a new lease contract with the
landowner. 7
Respecting the issuance of a writ of possession in the expropriation proceedings, the
appellate court, citing Republic v. Gingoyon, 8 held the same does not signify the
completion of the expropriation proceedings. Thus it disposed:
WHEREFORE, premises considered, the instant Petition is GRANTED. The assailed
Decision of the Court a quo is REVOKED and SET ASIDE. The Decision of the
Metropolitan Trial Court dated March 3, 2008 is hereby REINSTATED with
MODIFICATION [by] deleting the award for attorney's fees.
SO ORDERED. (underscoring supplied)
Petitioners' motion for reconsideration was denied by Resolution dated August 26, 2009,
hence, the filing of the present petition for review.
The petition fails.
In the exercise of the power of eminent domain, the State expropriates private property
for public use upon payment of just compensation. A socialized housing project falls within
the ambit of public use as it is in furtherance of the constitutional provisions on social
justice. 9
As a general rule, ejectment proceedings, due to its summary nature, are not suspended
or their resolution held in abeyance despite the pendency of a civil action regarding
ownership.
Section 1 of Commonwealth Act No. 538 10 enlightens, however:
Section 1. When the Government seeks to acquire, through purchase or expropriation
proceedings, lands belonging to any estate or chaplaincy (cappellania), any action for
ejectment against the tenants occupying said lands shall be automatically suspended, for
such time as may be required by the expropriation proceedings or the necessary
negotiations for the purchase of the lands, in which latter case, the period of suspension
shall not exceed one year. TICaEc
To avail himself of the benefits of the suspension, the tenants shall pay to the landowner
the current rents as they become due or deposit the same with the court where the action
for ejectment has been instituted. (emphasis and underscoring supplied)
Petitioners did not comply with any of the acts mentioned in the law to avail of the benefits
of the suspension. They nevertheless posit that since the lots are the subject of
expropriation proceedings, respondents can no longer assert a better right of possession;
and that the City Ordinance authorizing the initiation of expropriation proceedings
410
designated them as beneficiaries of the lots, hence, they are entitled to continue staying
there.
Petitioners' position does not lie.
The exercise of expropriation by a local government unit is covered by Section 19 of the
Local Government Code (LGC):
SEC. 19. Eminent Domain. A local government unit may, through its chief executive
and acting pursuant to an ordinance, exercise the power of eminent domain for public
use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of
just compensation, pursuant to the provisions of the Constitution and pertinent laws:
Provided, however, That the power of eminent domain may not be exercised unless a
valid and definite offer has been previously made to the owner, and such offer was not
accepted: Provided, further, That the local government unit may immediately take
possession of the property upon the filing of the expropriation proceedings and upon
making a deposit with the proper court of at least fifteen percent (15%) of the fair market
value of the property based on the current tax declaration of the property to be
expropriated: Provided, finally, That the amount to be paid for the expropriated property
shall be determined by the proper court, based on the fair market value of the property.
Lintag v. National Power Corporation 11 clearly outlines the stages of expropriation, viz.:
Expropriation of lands consists of two stages:
The first is concerned with the determination of the authority of the plaintiff to exercise the
power of eminent domain and the propriety of its exercise in the context of the facts
involved in the suit. It ends with an order, if not of dismissal of the action, "of condemnation
declaring that the plaintiff has a lawful right to take the property sought to be condemned,
for the public use or purpose described in the complaint, upon the payment of just
compensation to be determined as of the date of the filing of the complaint . . . .
The second phase of the eminent domain action is concerned with the determination by
the court of "the just compensation for the property sought to be taken." This is done by
the court with the assistance of not more than three (3) commissioners . . . .
It is only upon the completion of these two stages that expropriation is said to have been
completed. The process is not complete until payment of just compensation. Accordingly,
the issuance of the writ of possession in this case does not write finis to the expropriation
proceedings. To effectuate the transfer of ownership, it is necessary for the NPC to pay
the property owners the final just compensation. 12 (emphasis and underscoring
supplied) DcCHTa
In the present case, the mere issuance of a writ of possession in the expropriation
proceedings did not transfer ownership of the lots in favor of the City. Such issuance was
only the first stage in expropriation. There is even no evidence that judicial deposit had
been made in favor of respondents prior to the City's possession of the lots, contrary to
Section 19 of the LGC.
Respecting petitioners' claim that they have been named beneficiaries of the lots, the city
ordinance authorizing the initiation of expropriation proceedings does not state so. 13
Petitioners cannot thus claim any right over the lots on the basis of the ordinance.
Even if the lots are eventually transferred to the City, it is non sequitur for petitioners to
claim that they are automatically entitled to be beneficiaries thereof. For certain
requirements must be met and complied with before they can be considered to be
beneficiaries.
In another vein, petitioners posit that respondents failed to prove that their possession is
by mere tolerance. This too fails. Apropos is the ruling in Calubayan v. Pascual: 14
In allowing several years to pass without requiring the occupant to vacate the premises
nor filing an action to eject him, plaintiffs have acquiesced to defendant's possession and
use of the premises. It has been held that a person who occupies the land of another at
the latter's tolerance or permission, without any contract between them, is necessarily
411
bound by an implied promise that he will vacate upon demand, failing which a summary
action for ejectment is the proper remedy against them. The status of the defendant is
analogous to that of a lessee or tenant whose term of lease has expired but whose
occupancy continued by tolerance of the owner. In such a case, the unlawful deprivation
or withholding of possession is to be counted from the date of the demand to vacate.
(emphasis and underscoring supplied)
Respondents bought the lots from Pilipinas Development Corporation in 1983. They
stepped into the shoes of the seller with respect to its relationship with petitioners. Even
if early on respondents made no demand or filed no action against petitioners to eject
them from the lots, they thereby merely maintained the status quo allowed petitioners'
possession by tolerance.
WHEREFORE, the petition for review is DENIED.
Brion, Bersamin, Villarama, Jr. and Sereno, JJ., concur.
||| (Spouses Abad v. Fil-Homes Realty and Development Corp., G.R. No. 189239,
[November 24, 2010], 650 PHIL 608-618)
3. VDA. DE OUANO VS. REPUBLIC 642 SCRA 384 (2011)

FIRST DIVISION
[G.R. No. 1687702. February 9, 2011.]
ANUNCIACION VDA. DE OUANO, MARIO P. OUANO, LETICIA OUANO ARNAIZ, and
CIELO OUANO MARTINEZ, petitioners, vs. THE REPUBLIC OF THE PHILIPPINES,
THE MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY, and THE REGISTER
OF DEEDS FOR THE CITY OF CEBU, respondents.
[G.R. No. 168812. February 9, 2011.]
MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY (MCIAA), petitioner, vs.
RICARDO L. INOCIAN, in his personal capacity and as Attorney-in-Fact of OLYMPIA E.
ESTEVES, EMILIA E. BACALLA, RESTITUTA E. MONTANA, and RAUL L. INOCIAN;
and ALETHA SUICO MAGAT, in her personal capacity and as Attorney-in-Fact of PHILIP
M. SUICO, DORIS S. DELA CRUZ, JAMES M. SUICO, EDWARD M. SUICO, ROSELYN
SUICO-LAWSIN, REX M. SUICO, KHARLA SUICO-GUTIERREZ, ALBERT
CHIONGBIAN, and JOHNNY CHAN, respondents.
DECISION
VELASCO, JR., J p:
At the center of these two (2) Petitions for Review on Certiorari under Rule 45 is the issue
of the right of the former owners of lots acquired for the expansion of the Lahug Airport in
Cebu City to repurchase or secure reconveyance of their respective properties.
In the first petition, docketed as G.R. No. 1687702, petitioners Anunciacion vda. de
Ouano, Mario Ouano, Leticia Ouano Arnaiz and Cielo Ouano Martinez (the Ouanos) seek
to nullify the Decision 1 dated September 3, 2004 of the Court of Appeals (CA) in CAG.R. CV No. 78027, affirming the Order dated December 9, 2002 of the Regional Trial
Court (RTC), Branch 57 in Cebu City, in Civil Case No. CEB-20743, a suit to compel the
Republic of the Philippines and/or the Mactan-Cebu International Airport Authority
(MCIAA) to reconvey to the Ouanos a parcel of land.
The second petition, docketed as G.R. No. 168812, has the MCIAA seeking principally to
annul and set aside the Decision 2 and Resolution 3 dated January 14, 2005 and June
412
29, 2005, respectively, of the CA in CA-G.R. CV No. 64356, sustaining the RTC, Branch
13 in Cebu City in its Decision of October 7, 1988 in Civil Case No. CEB-18370.
Per its October 19, 2005 Resolution, the Court ordered the consolidation of both cases.
Except for the names of the parties and the specific lot designation involved, the relevant
factual antecedents which gave rise to these consolidated petitions are, for the most part,
as set forth in the Court's Decision 4 of October 15, 2003, as reiterated in a Resolution 5
dated August 9, 2005, in G.R. No. 156273 entitled Heirs of Timoteo Moreno and Maria
Rotea v. Mactan-Cebu International Airport Authority (Heirs of Moreno), and in other
earlier related cases. 6
In 1949, the National Airport Corporation (NAC), MCIAA's predecessor agency, pursued
a program to expand the Lahug Airport in Cebu City. Through its team of negotiators,
NAC met and negotiated with the owners of the properties situated around the airport,
which included Lot Nos. 744-A, 745-A, 746, 747, 761-A, 762-A, 763-A, 942, and 947 of
the Banilad Estate. As the landowners would later claim, the government negotiating
team, as a sweetener, assured them that they could repurchase their respective lands
should the Lahug Airport expansion project do not push through or once the Lahug Airport
closes or its operations transferred to Mactan-Cebu Airport. Some of the landowners
accepted the assurance and executed deeds of sale with a right of repurchase. Others,
however, including the owners of the aforementioned lots, refused to sell because the
purchase price offered was viewed as way below market, forcing the hand of the Republic,
represented by the then Civil Aeronautics Administration (CAA), as successor agency of
the NAC, to file a complaint for the expropriation of Lot Nos. 744-A, 745-A, 746, 747, 761A, 762-A, 763-A, 942, and 947, among others, docketed as Civil Case No. R-1881 entitled
Republic v. Damian Ouano, et al.
On December 29, 1961, the then Court of First Instance (CFI) of Cebu rendered judgment
for the Republic, disposing, in part, as follows:
IN VIEW OF THE FOREGOING, judgment is hereby rendered: aTHASC
1.Declaring the expropriation of Lots Nos. 75, 76, 76, 89, 90, 91, 92, 105, 106, 107, 108,
104, 921-A, 88, 93, 913-B, 72, 77, 916, 777-A, 918, 919, 920, 764-A, 988, 744-A, 745-A,
746, 747, 762-A, 763-A, 951, 942, 720-A, . . . and 947, included in the Lahug Airport,
Cebu City, justified in and in lawful exercise of the right of eminent domain.
xxx xxx xxx
3.After the payment of the foregoing financial obligation to the landowners, directing the
latter to deliver to the plaintiff the corresponding Transfer Certificates of Title to their
respective lots; and upon the presentation of the said titles to the Register of Deeds,
ordering the latter to cancel the same and to issue, in lieu thereof, new Transfer
Certificates of Title in the name of the plaintiff. 7
In view of the adverted buy-back assurance made by the government, the owners of the
lots no longer appealed the decision of the trial court. 8 Following the finality of the
judgment of condemnation, certificates of title for the covered parcels of land were issued
in the name of the Republic which, pursuant to Republic Act No. 6958, 9 were
subsequently transferred to MCIAA.
At the end of 1991, or soon after the transfer of the aforesaid lots to MCIAA, Lahug Airport
completely ceased operations, Mactan Airport having opened to accommodate incoming
and outgoing commercial flights. On the ground, the expropriated lots were never utilized
for the purpose they were taken as no expansion of Lahug Airport was undertaken. This
development prompted the former lot owners to formally demand from the government
that they be allowed to exercise their promised right to repurchase. The demands went
unheeded. Civil suits followed.
G.R. No. 168812 (MCIAA Petition)
On February 8, 1996, Ricardo L. Inocian and four others (all children of Isabel Limbaga
who originally owned six [6] of the lots expropriated); and Aletha Suico Magat and seven
others, successors-in-interest of Santiago Suico, the original owner of two (2) of the
413
condemned lots (collectively, the Inocians), filed before the RTC in Cebu City a complaint
for reconveyance of real properties and damages against MCIAA. The complaint,
docketed as Civil Case No. CEB-18370, was eventually raffled to Branch 13 of the court.
On September 29, 1997, one Albert Chiongbian (Chiongbian), alleging to be the owner
of Lot Nos. 761-A and 762-A but which the Inocians were now claiming, moved and was
later allowed to intervene.
During the pre-trial, MCIAA admitted the following facts: ADaEIH
1. That the properties, which are the subject matter of Civil Case No. CEB-18370, are
also the properties involved in Civil Case R-1881;
2. That the purpose of the expropriation was for the expansion of the old Lahug Airport;
that the Lahug Airport was not expanded;
3. That the old Lahug Airport was closed sometime in June 1992;
4. That the price paid to the lot owners in the expropriation case is found in the decision
of the court; and
5. That some properties were reconveyed by the MCIAA because the previous owners
were able to secure express waivers or riders wherein the government agreed to return
the properties should the expansion of the Lahug Airport not materialize.
During trial, the Inocians adduced evidence which included the testimony of Ricardo
Inocian (Inocian) and Asterio Uy (Uy). Uy, an employee of the CAA, testified that he was
a member of the team which negotiated for the acquisition of certain lots in Lahug for the
proposed expansion of the Lahug Airport. He recalled that he acted as the
interpreter/spokesman of the team since he could speak the Cebuano dialect. He stated
that the other members of the team of negotiators were Atty. Pedro Ocampo, Atty.
Lansang, and Atty. Saligumba. He recounted that, in the course of the negotiation, their
team assured the landowners that their landholdings would be reconveyed to them in the
event the Lahug Airport would be abandoned or if its operation were transferred to the
Mactan Airport. Some landowners opted to sell, while others were of a different bent
owing to the inadequacy of the offered price.
Inocian testified that he and his mother, Isabel Lambaga, attended a meeting called by
the NAC team of negotiators sometime in 1947 or 1949 where he and the other
landowners were given the assurance that they could repurchase their lands at the same
price in the event the Lahug Airport ceases to operate. He further testified that they
rejected the NAC's offer. However, he said that they no longer appealed the decree of
expropriation due to the repurchase assurance adverted to.
The MCIAA presented Michael Bacarizas (Bacarizas), who started working for MCIAA as
legal assistant in 1996. He testified that, in the course of doing research work on the lots
subject of Civil Case No. CEB-18370, he discovered that the same lots were covered by
the decision in Civil Case No. R-1881. He also found out that the said decision did not
expressly contain any condition on the matter of repurchase.
Ruling of the RTC
On October 7, 1998, the RTC rendered a Decision in Civil Case No. CEB-18370, the
dispositive portion of which reads as follows: DHSEcI
WHEREFORE, in view of the foregoing, judgment is hereby rendered directing defendant
Mactan Cebu International Airport Authority (MCIAA) to reconvey (free from liens and
encumbrances) to plaintiffs Ricardo Inocian, Olimpia E. Esteves, Emilia E. Bacalla,
Restituta E. Montana and Raul Inocian Lots No. 744-A, 745-A, 746, 762-A, 747, 761-A
and to plaintiffs Aletha Suico Magat, Philip M. Suico, Doris S. dela Cruz, James M. Suico,
Edward M. Suico, Roselyn S. Lawsin, Rex M. Suico and Kharla Suico-Gutierrez Lots No.
942 and 947, after plaintiffs shall have paid MCIAA the sums indicated in the decision in
Civil Case No. R-1881. Defendant MCIAA is likewise directed to pay the aforementioned
plaintiffs the sum or P50,000.00 as and for attorney's fees and P10,000.00 for litigation
expenses.
414
Albert Chiongbian's intervention should be, as it is hereby DENIED for utter lack of factual
basis.
With costs against defendant MCIAA. 10
Therefrom, MCIAA went to the CA on appeal, docketed as CA-G.R. CV No. 64356.
Ruling of the CA
On January 14, 2005, the CA rendered judgment for the Inocians, declaring them entitled
to the reconveyance of the questioned lots as the successors-in-interest of the late Isabel
Limbaga and Santiago Suico, as the case may be, who were the former registered owners
of the said lots. The decretal portion of the CA's Decision reads:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us
DISMISSING the appeal filed in this case and AFFIRMING the decision rendered by the
court a quo on October 7, 1998 in Civil Case No. CEB-18370.
SO ORDERED.
The CA, citing and reproducing excerpts from Heirs of Moreno, 11 virtually held that the
decision in Civil Case No. R-1881 was conditional, stating "that the expropriation of
[plaintiff-appellees'] lots for the proposed expansion of the Lahug Airport was ordered by
the CFI of Cebu under the impression that Lahug Airport would continue in operation." 12
The condition, as may be deduced from the CFI's decision, was that should MCIAA, or its
precursor agency, discontinue altogether with the operation of Lahug Airport, then the
owners of the lots expropriated may, if so minded, demand of MCIAA to make good its
verbal assurance to allow the repurchase of the properties. To the CA, this assurance, a
demandable agreement of repurchase by itself, has been adequately established.
On September 21, 2005, the MCIAA filed with Us a petition for review of the CA's
Decision, docketed as G.R. No. 168812. TIaCHA
G.R. No. 1687702 (Ouano Petition)
Soon after the MCIAA jettisoned the Lahug Airport expansion project, informal settlers
entered and occupied Lot No. 763-A which, before its expropriation, belonged to the
Ouanos. The Ouanos then formally asked to be allowed to exercise their right to
repurchase the aforementioned lot, but the MCIAA ignored the demand. On August 18,
1997, the Ouanos instituted a complaint before the Cebu City RTC against the Republic
and the MCIAA for reconveyance, docketed as Civil Case No. CEB-20743.
Answering, the Republic and MCIAA averred that the Ouanos no longer have enforceable
rights whatsoever over the condemned Lot No. 763-A, the decision in Civil Case No. R1881 not having found any reversionary condition.
Ruling of the RTC
By a Decision dated November 28, 2000, the RTC, Branch 57 in Cebu City ruled in favor
of the Ouanos, disposing as follows:
WHEREFORE, in the light of the foregoing, the Court hereby renders judgment in favor
of the plaintiffs, Anunciacion Vda. De Ouano, Mario P. Ouano, Leticia Ouano Arnaiz and
Cielo Ouano Martinez and against the Republic of the Philippines and Mactan Cebu
International Airport Authority (MCIAA) to restore to plaintiffs, the possession and
ownership of their land, Lot No. 763-A upon payment of the expropriation price to
defendants; and
2. Ordering the Register of Deeds to effect the transfer of the Certificate of Title from
defendant Republic of the Philippines on Lot 763-A, canceling TCT No. 52004 in the name
of defendant Republic of the Philippines and to issue a new title on the same lot in the
names of Anunciacion Vda. De Ouano, Mario P. Ouano, Leticia Ouano Arnaiz and Cielo
Ouano Martinez.
No pronouncement as to costs. 13
415
Acting on the motion of the Republic and MCIAA for reconsideration, however, the RTC,
Branch 57 in Cebu City, presided this time by Judge Enriqueta L. Belarmino, issued, on
December 9, 2002, an Order 14 that reversed its earlier decision of November 28, 2000
and dismissed the Ouanos' complaint.
Ruling of the CA
In time, the Ouanos interposed an appeal to the CA, docketed as CA-G.R. CV No. 78027.
Eventually, the appellate court rendered a Decision 15 dated September 3, 2004, denying
the appeal, thus:
WHEREFORE, premises considered, the Order dated December 9, 2002, of the Regional
Trial Court, 7th Judicial Region, Branch 57, Cebu City, in Civil Case No. CEB-20743, is
hereby AFFIRMED. No pronouncement as to costs. ScaEIT
SO ORDERED.
Explaining its case disposition, the CA stated that the decision in Civil Case No. R-1881
did not state any condition that Lot No. 763-A of the Ouanos and all covered lots for
that matter would be returned to them or that they could repurchase the same property
if it were to be used for purposes other than for the Lahug Airport. The appellate court
also went on to declare the inapplicability of the Court's pronouncement in MCIAA v. Court
of Appeals, RTC, Branch 9, Cebu City, Melba Limbago, et al., 16 to support the Ouanos'
cause, since the affected landowners in that case, unlike the Ouanos, parted with their
property not through expropriation but via a sale and purchase transaction.
The Ouanos filed a motion for reconsideration of the CA's Decision, but was denied per
the CA's May 26, 2005 Resolution. 17 Hence, they filed this petition in G.R. No. 1687702.
The Issues
G.R. No. 168812
GROUNDS FOR ALLOWANCE OF THE PETITION
I. THE ASSAILED ISSUANCES ILLEGALLY STRIPPED THE REPUBLIC OF ITS
ABSOLUTE AND UNCONDITIONAL TITLE TO THE SUBJECT EXPROPRIATED
PROPERTIES. aSEHDA
II. THE IMPUGNED DISPOSITIONS INVALIDLY OVERTURNED THIS HONORABLE
COURT'S FINAL RULINGS IN FERY V. MUNICIPALITY OF CABANATUAN, MCIAA V.
COURT OF APPEALS AND REYES V. NATIONAL HOUSING AUTHORITY.
III. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THIS HONORABLE
COURT'S RULING IN MORENO, ALBEIT IT HAS NOT YET ATTAINED FINALITY. 18
G.R. No. 1687702
Questions of law presented in this Petition
Whether or not the testimonial evidence of the petitioners proving the promises,
assurances and representations by the airport officials and lawyers are inadmissible
under the Statute of Frauds.
Whether or not under the ruling of this Honorable Court in the heirs of Moreno Case, and
pursuant to the principles enunciated therein, petitioners herein are entitled to recover
their litigated property.
Reasons for Allowances of this Petition
Respondents did not object during trial to the admissibility of petitioners' testimonial
evidence under the Statute of Frauds and have thus waived such objection and are now
barred from raising the same. In any event, the Statute of Frauds is not applicable herein.
416
Consequently, petitioners' evidence is admissible and should be duly given weight and
credence, as initially held by the trial court in its original Decision. 19
While their respective actions against MCIAA below ended differently, the Ouanos and
the Inocians' proffered arguments presented before this Court run along parallel lines,
both asserting entitlement to recover the litigated property on the strength of the Court's
ruling in Heirs of Moreno. MCIAA has, however, formulated in its Consolidated
Memorandum the key interrelated issues in these consolidated cases, as follows:
I
WHETHER ABANDONMENT OF THE PUBLIC USE FOR WHICH THE SUBJECT
PROPERTIES WERE EXPROPRIATED ENTITLES PETITIONERS OUANOS, ET AL.,
AND RESPONDENTS INOCIAN, ET AL., TO REACQUIRE THEM. aDIHTE
II
WHETHER PETITIONERS OUANOS, ET AL., AND RESPONDENTS INOCIAN, ET AL.,
ARE ENTITLED TO RECONVEYANCE OF THE SUBJECT PROPERTIES SIMPLY ON
THE BASIS OF AN ALLEGED VERBAL PROMISE OR ASSURANCE OF SOME NAC
OFFICIALS THAT THE SUBJECT PROPERTIES WILL BE RETURNED IF THE
AIRPORT PROJECT WOULD BE ABANDONED.
The Court's Ruling
The Republic and MCIAA's petition in G.R. No. 168812 is bereft of merit, while the Ouano
petition in G.R. No. 1687702 is meritorious.
At the outset, three (3) fairly established factual premises ought to be emphasized:
First, the MCIAA and/or its predecessor agency had not actually used the lots subject of
the final decree of expropriation in Civil Case No. R-1881 for the purpose they were
originally taken by the government, i.e., for the expansion and development of Lahug
Airport.
Second, the Lahug Airport had been closed and abandoned. A significant portion of it
had, in fact, been purchased by a private corporation for development as a commercial
complex. 20 HCITcA
Third, it has been preponderantly established by evidence that the NAC, through its team
of negotiators, had given assurance to the affected landowners that they would be entitled
to repurchase their respective lots in the event they are no longer used for airport
purposes. 21 "No less than Asterio Uy," the Court noted in Heirs of Moreno, "one of the
members of the CAA Mactan Legal Team, which interceded for the acquisition of the lots
for the Lahug Airport's expansion, affirmed that persistent assurances were given to the
landowners to the effect that as soon as the Lahug Airport is abandoned or transferred to
Mactan, the lot owners would be able to reacquire their properties." 22 In Civil Case No.
CEB-20743, Exhibit "G," the transcript of the deposition 23 of Anunciacion vda. de Ouano
covering the assurance made had been formally offered in evidence and duly considered
in the initial decision of the RTC Cebu City. In Civil Case No. CEB-18370, the trial court,
on the basis of testimonial evidence, and later the CA, recognized the reversionary rights
of the suing former lot owners or their successors in interest 24 and resolved the case
accordingly. In point with respect to the representation and promise of the government to
return the lots taken should the planned airport expansion do not materialize is what the
Court said in Heirs of Moreno, thus:
This is a difficult case calling for a difficult but just solution. To begin with there exists an
undeniable historical narrative that the predecessors of respondent MCIAA had
suggested to the landowners of the properties covered by the Lahug Airport expansion
scheme that they could repurchase their properties at the termination of the airport's
venue. Some acted on this assurance and sold their properties; other landowners held
out and waited for the exercise of eminent domain to take its course until finally coming
to terms with respondent's predecessors that they would not appeal nor block further
judgment of condemnation if the right of repurchase was extended to them. A handful
417
failed to prove that they acted on such assurance when they parted with ownership of
their land. 25 (Emphasis supplied; citations omitted.)
For perspective, Heirs of Moreno later followed by MCIAA v. Tudtud (Tudtud) 26 and
the consolidated cases at bar is cast under the same factual setting and centered on
the expropriation of privately-owned lots for the public purpose of expanding the Lahug
Airport and the alleged promise of reconveyance given by the negotiating NAC officials
to the private lot owners. All the lots being claimed by the former owners or successorsin-interest of the former owners in the Heirs of Moreno, Tudtud, and the present cases
were similarly adjudged condemned in favor of the Republic in Civil Case No. R-1881. All
the claimants sought was or is to have the condemned lots reconveyed to them upon the
payment of the condemnation price since the public purpose of the expropriation was
never met. Indeed, the expropriated lots were never used and were, in fact, abandoned
by the expropriating government agencies. DcAaSI
In all then, the issues and supporting arguments presented by both sets of petitioners in
these consolidated cases have already previously been passed upon, discussed at
length, and practically peremptorily resolved in Heirs of Moreno and the November 2008
Tudtud ruling. The Ouanos, as petitioners in G.R. No. 1687702, and the Inocians, as
respondents in G.R. No. 168812, are similarly situated as the heirs of Moreno in Heirs of
Moreno and Benjamin Tudtud in Tudtud. Be that as it may, there is no reason why the
ratio decidendi in Heirs of Moreno and Tudtud should not be made to apply to petitioners
Ouanos and respondents Inocians such that they shall be entitled to recover their or their
predecessors' respective properties under the same manner and arrangement as the
heirs of Moreno and Tudtud. Stare decisis et non quieta movere (to adhere to precedents,
and not to unsettle things which are established). 27
Just like in Tudtud and earlier in Heirs of Moreno, MCIAA would foist the theory that the
judgment of condemnation in Civil Case No. R-1881 was without qualification and was
unconditional. It would, in fact, draw attention to the fallo of the expropriation court's
decision to prove that there is nothing in the decision indicating that the government gave
assurance or undertook to reconvey the covered lots in case the Lahug airport expansion
project is aborted. Elaborating on this angle, MCIAA argues that the claim of the Ouanos
and the Inocians regarding the alleged verbal assurance of the NAC negotiating team
that they can reacquire their landholdings is barred by the Statute of Frauds. 28
Under the rule on the Statute of Frauds, as expressed in Article 1403 of the Civil Code, a
contract for the sale or acquisition of real property shall be unenforceable unless the same
or some note of the contract be in writing and subscribed by the party charged. Subject
to defined exceptions, evidence of the agreement cannot be received without the writing,
or secondary evidence of its contents.
MCIAA's invocation of the Statute of Frauds is misplaced primarily because the statute
applies only to executory and not to completed, executed, or partially consummated
contracts. 29 Carbonnel v. Poncio, et al., quoting Chief Justice Moran, explains the
rationale behind this rule, thusly:
. . . "The reason is simple. In executory contracts there is a wide field for fraud because
unless they may be in writing there is no palpable evidence of the intention of the
contracting parties. The statute has been precisely been enacted to prevent fraud." . . .
However, if a contract has been totally or partially performed, the exclusion of parol
evidence would promote fraud or bad faith, for it would enable the defendant to keep the
benefits already derived by him from the transaction in litigation, and at the same time,
evade the obligations, responsibilities or liabilities assumed or contracted by him thereby.
30 (Emphasis in the original.) EacHSA
Analyzing the situation of the cases at bar, there can be no serious objection to the
proposition that the agreement package between the government and the private lot
owners was already partially performed by the government through the acquisition of the
lots for the expansion of the Lahug airport. The parties, however, failed to accomplish the
more important condition in the CFI decision decreeing the expropriation of the lots
litigated upon: the expansion of the Lahug Airport. The project the public purpose
418
behind the forced property taking was, in fact, never pursued and, as a consequence,
the lots expropriated were abandoned. Be that as it may, the two groups of landowners
can, in an action to compel MCIAA to make good its oral undertaking to allow repurchase,
adduce parol evidence to prove the transaction.
At any rate, the objection on the admissibility of evidence on the basis of the Statute of
Frauds may be waived if not timely raised. Records tend to support the conclusion that
MCIAA did not, as the Ouanos and the Inocians posit, object to the introduction of parol
evidence to prove its commitment to allow the former landowners to repurchase their
respective properties upon the occurrence of certain events.
In a bid to deny the lot owners the right to repurchase, MCIAA, citing cases, 31 points to
the dispositive part of the decision in Civil Case R-1881 which, as couched, granted the
Republic absolute title to the parcels of land declared expropriated. The MCIAA is correct
about the unconditional tone of the dispositive portion of the decision, but that actuality
would not carry the day for the agency. Addressing the matter of the otherwise absolute
tenor of the CFI's disposition in Civil Case No. R-1881, the Court, in Heirs of Moreno,
after taking stock of the ensuing portion of the body of the CFI's decision, said:
As for the public purpose of the expropriation proceeding, it cannot now be doubted.
Although Mactan Airport is being constructed, it does not take away the actual usefulness
and importance of the Lahug Airport: it is handling the air traffic of both civilian and
military. From it, aircrafts fly to Mindanao and Visayas and pass thru it on their flights to
the North and Manila. Then, no evidence was adduced to show how soon is the Mactan
Airport to be placed in operation and whether the Lahug Airport will be closed immediately
thereafter. It is up to the other departments of the Government to determine said matters.
The Court cannot substitute its judgments for those of the said departments or agencies.
In the absence of such showing, the court will presume that the Lahug Airport will continue
to be in operation. 32 (Emphasis supplied.)
We went on to state as follows:
While the trial court in Civil Case No. R-1881 could have simply acknowledged the
presence of public purpose for the exercise of eminent domain regardless of the survival
of the Lahug Airport, the trial court in its Decision chose not to do so but instead prefixed
its finding of public purpose upon its understanding that 'Lahug Airport will continue to be
in operation'. Verily, these meaningful statements in the body of the Decision warrant the
conclusion that the expropriated properties would remain to be so until it was confirmed
that Lahug Airport was no longer 'in operation'. This inference further implies two (2)
things: (a) after the Lahug Airport ceased its undertaking as such and the expropriated
lots were not being used for any airport expansion project, the rights vis- -vis the
expropriated lots . . . as between the State and their former owners, petitioners herein,
must be equitably adjusted; and (b) the foregoing unmistakable declarations in the body
of the Decision should merge with and become an intrinsic part of the fallo thereof which
under the premises is clearly inadequate since the dispositive portion is not in accord with
the findings as contained in the body thereof. 33 DEHaTC
Not to be overlooked of course is what the Court said in its Resolution disposing of
MCIAA's motion to reconsider the original ruling in Heirs of Moreno. In that resolution, We
stated that the fallo of the decision in Civil Case R-1881 should be viewed and understood
in connection with the entire text, which contemplated a return of the property taken if the
airport expansion project were abandoned. For ease of reference, following is what the
Court wrote:
Moreover, we do not subscribe to the [MCIAA's] contention that since the possibility of
the Lahug Airport's closure was actually considered by the trial court, a stipulation on
reversion or repurchase was so material that it should not have been discounted by the
court a quo in its decision in Civil Case No. R-1881, if, in fact, there was one. We find it
proper to cite, once more, this Court's ruling that the fallo of the decision in Civil Case No.
R-1881 must be read in reference to the other portions of the decision in which it forms a
part. A reading of the Court's judgment must not be confined to the dispositive portion
419
alone; rather it should be meaningfully construed in unanimity with the ratio decidendi
thereof to grasp the true intent and meaning of a decision. 34
The Court has, to be sure, taken stock of Fery v. Municipality of Cabanatuan, 35 a case
MCIAA cites at every possible turn, where the Court made these observations:
If, for example, land is expropriated for a particular purpose, with the condition that when
that purpose is ended or abandoned the property shall return to its former owner, then of
course, when the purpose is terminated or abandoned, the former owner reacquires the
property so expropriated. . . . If, upon the contrary, however the decree of expropriation
gives to the entity a fee simple title, then, of course, the land becomes the absolute
property of the expropriator . . . and in that case the non-user does not have the effect of
defeating the title acquired by the expropriation proceedings . . . .
Fery notwithstanding, MCIAA cannot really rightfully say that it has absolute title to the
lots decreed expropriated in Civil Case No. R-1881. The correct lesson of Fery is captured
by what the Court said in that case, thus: "the government acquires only such rights in
expropriated parcels of land as may be allowed by the character of its title over the
properties." In light of our disposition in Heirs of Moreno and Tudtud, the statement
immediately adverted to means that in the event the particular public use for which a
parcel of land is expropriated is abandoned, the owner shall not be entitled to recover or
repurchase it as a matter of right, unless such recovery or repurchase is expressed in or
irresistibly deducible from the condemnation judgment. But as has been determined
below, the decision in Civil Case No. R-1881 enjoined MCIAA, as a condition of approving
expropriation, to allow recovery or repurchase upon abandonment of the Lahug airport
project. To borrow from our underlying decision in Heirs of Moreno, "[n]o doubt, the return
or repurchase of the condemned properties of petitioners could readily be justified as the
manifest legal effect of consequence of the trial court's underlying presumption that
'Lahug Airport will continue to be in operation' when it granted the complaint for eminent
domain and the airport discontinued its activities." 36 aIcHSC
Providing added support to the Ouanos and the Inocians' right to repurchase is what in
Heirs of Moreno was referred to as constructive trust, one that is akin to the implied trust
expressed in Art. 1454 of the Civil Code, 37 the purpose of which is to prevent unjust
enrichment. 38 In the case at bench, the Ouanos and the Inocians parted with their
respective lots in favor of the MCIAA, the latter obliging itself to use the realties for the
expansion of Lahug Airport; failing to keep its end of the bargain, MCIAA can be
compelled by the former landowners to reconvey the parcels of land to them, otherwise,
they would be denied the use of their properties upon a state of affairs that was not
conceived nor contemplated when the expropriation was authorized. In effect, the
government merely held the properties condemned in trust until the proposed public use
or purpose for which the lots were condemned was actually consummated by the
government. Since the government failed to perform the obligation that is the basis of the
transfer of the property, then the lot owners Ouanos and Inocians can demand the
reconveyance of their old properties after the payment of the condemnation price.
Constructive trusts are fictions of equity that courts use as devices to remedy any situation
in which the holder of the legal title, MCIAA in this case, may not, in good conscience,
retain the beneficial interest. We add, however, as in Heirs of Moreno, that the party
seeking the aid of equity the landowners in this instance, in establishing the trust
must himself do equity in a manner as the court may deem just and reasonable.
The Court, in the recent MCIAA v. Lozada, Sr., revisited and abandoned the Fery ruling
that the former owner is not entitled to reversion of the property even if the public purpose
were not pursued and were abandoned, thus:
On this note, we take this opportunity to revisit our ruling in Fery, which involved an
expropriation suit commenced upon parcels of land to be used as a site for a public
market. Instead of putting up a public market, respondent Cabanatuan constructed
residential houses for lease on the area. Claiming that the municipality lost its right to the
property taken since it did not pursue its public purpose, petitioner Juan Fery, the former
owner of the lots expropriated, sought to recover his properties. However, as he had
420
admitted that, in 1915, respondent Cabanatuan acquired a fee simple title to the lands in
question, judgment was rendered in favor of the municipality, following American
jurisprudence, particularly City of Fort Wayne v. Lake Shore & M.S. RY. Co., McConihay
v. Theodore Wright, and Reichling v. Covington Lumber Co., all uniformly holding that the
transfer to a third party of the expropriated real property, which necessarily resulted in the
abandonment of the particular public purpose for which the property was taken, is not a
ground for the recovery of the same by its previous owner, the title of the expropriating
agency being one of fee simple. cAHDES
Obviously, Fery was not decided pursuant to our now sacredly held constitutional right
that private property shall not be taken for public use without just compensation. It is well
settled that the taking of private property by the Governments power of eminent domain
is subject to two mandatory requirements: (1) that it is for a particular public purpose; and
(2) that just compensation be paid to the property owner. These requirements partake of
the nature of implied conditions that should be complied with to enable the condemnor to
keep the property expropriated.
More particularly, with respect to the element of public use, the expropriator should
commit to use the property pursuant to the purpose stated in the petition for expropriation
filed, failing which, it should file another petition for the new purpose. If not, it is then
incumbent upon the expropriator to return the said property to its private owner, if the
latter desires to reacquire the same. Otherwise, the judgment of expropriation suffers an
intrinsic flaw, as it would lack one indispensable element for the proper exercise of the
power of eminent domain, namely, the particular public purpose for which the property
will be devoted. Accordingly, the private property owner would be denied due process of
law, and the judgment would violate the property owners right to justice, fairness, and
equity.
In light of these premises, we now expressly hold that the taking of private property,
consequent to the Governments exercise of its power of eminent domain, is always
subject to the condition that the property be devoted to the specific public purpose for
which it was taken. Corollarily, if this particular purpose or intent is not initiated or not at
all pursued, and is peremptorily abandoned, then the former owners, if they so desire,
may seek the reversion of the property, subject to the return of the amount of just
compensation received. In such a case, the exercise of the power of eminent domain has
become improper for lack of the required factual justification. 39 (Emphasis supplied.)
Clinging to Fery, specifically the fee simple concept underpinning it, is no longer
compelling, considering the ensuing inequity such application entails. Too, the Court
resolved Fery not under the cover of any of the Philippine Constitutions, each decreeing
that private property shall not be taken for public use without just compensation. The twin
elements of just compensation and public purpose are, by themselves, direct limitations
to the exercise of eminent domain, arguing, in a way, against the notion of fee simple title.
The fee does not vest until payment of just compensation. 40
In esse, expropriation is forced private property taking, the landowner being really without
a ghost of a chance to defeat the case of the expropriating agency. In other words, in
expropriation, the private owner is deprived of property against his will. Withal, the
mandatory requirement of due process ought to be strictly followed, such that the state
must show, at the minimum, a genuine need, an exacting public purpose to take private
property, the purpose to be specifically alleged or least reasonably deducible from the
complaint. DTAIaH
Public use, as an eminent domain concept, has now acquired an expansive meaning to
include any use that is of "usefulness, utility, or advantage, or what is productive of
general benefit [of the public]." 41 If the genuine public necessity the very reason or
condition as it were allowing, at the first instance, the expropriation of a private land
ceases or disappears, then there is no more cogent point for the government's retention
of the expropriated land. The same legal situation should hold if the government devotes
421
the property to another public use very much different from the original or deviates from
the declared purpose to benefit another private person. It has been said that the direct
use by the state of its power to oblige landowners to renounce their productive possession
to another citizen, who will use it predominantly for that citizen's own private gain, is
offensive to our laws. 42
A condemnor should commit to use the property pursuant to the purpose stated in the
petition for expropriation, failing which it should file another petition for the new purpose.
If not, then it behooves the condemnor to return the said property to its private owner, if
the latter so desires. The government cannot plausibly keep the property it expropriated
in any manner it pleases and, in the process, dishonor the judgment of expropriation. This
is not in keeping with the idea of fair play.
The notion, therefore, that the government, via expropriation proceedings, acquires
unrestricted ownership over or a fee simple title to the covered land, is no longer tenable.
We suggested as much in Heirs of Moreno and in Tudtud and more recently in Lozada,
Sr. Expropriated lands should be differentiated from a piece of land, ownership of which
was absolutely transferred by way of an unconditional purchase and sale contract freely
entered by two parties, one without obligation to buy and the other without the duty to sell.
In that case, the fee simple concept really comes into play. There is really no occasion to
apply the "fee simple concept" if the transfer is conditional. The taking of a private land in
expropriation proceedings is always conditioned on its continued devotion to its public
purpose. As a necessary corollary, once the purpose is terminated or peremptorily
abandoned, then the former owner, if he so desires, may seek its reversion, subject of
course to the return, at the very least, of the just compensation received.
To be compelled to renounce dominion over a piece of land is, in itself, an already bitter
pill to swallow for the owner. But to be asked to sacrifice for the common good and yield
ownership to the government which reneges on its assurance that the private property
shall be for a public purpose may be too much. But it would be worse if the power of
eminent domain were deliberately used as a subterfuge to benefit another with influence
and power in the political process, including development firms. The mischief thus
depicted is not at all far-fetched with the continued application of Fery. Even as the Court
deliberates on these consolidated cases, there is an uncontroverted allegation that the
MCIAA is poised to sell, if it has not yet sold, the areas in question to Cebu Property
Ventures, Inc. This provides an added dimension to abandon Fery.
Given the foregoing disquisitions, equity and justice demand the reconveyance by MCIAA
of the litigated lands in question to the Ouanos and Inocians. In the same token, justice
and fair play also dictate that the Ouanos and Inocian return to MCIAA what they received
as just compensation for the expropriation of their respective properties plus legal interest
to be computed from default, which in this case should run from the time MCIAA complies
with the reconveyance obligation. 43 They must likewise pay MCIAA the necessary
expenses it might have incurred in sustaining their respective lots and the monetary value
of its services in managing the lots in question to the extent that they, as private owners,
were benefited thereby. CSHcDT
In accordance with Art. 1187 of the Civil Code on mutual compensation, MCIAA may keep
whatever income or fruits it may have obtained from the parcels of land expropriated. In
turn, the Ouanos and Inocians need not require the accounting of interests earned by the
amounts they received as just compensation. 44
Following Art. 1189 of the Civil Code providing that "[i]f the thing is improved by its nature,
or by time, the improvement shall inure to the benefit of the creditor . . .," the Ouanos and
Inocians do not have to settle the appreciation of the values of their respective lots as part
of the reconveyance process, since the value increase is merely the natural effect of
nature and time.
Finally, We delete the award of PhP50,000 and PhP10,000, as attorney's fees and
litigation expenses, respectively, made in favor of the Inocians by the Cebu City RTC in
its judgment in Civil Case No. CEB-18370, as later affirmed by the CA. As a matter of
sound policy, no premium should be set on the right to litigate where there is no doubt
about the bona fides of the exercise of such right, 45 as here, albeit the decision of MCIAA
to resist the former landowners' claim eventually turned out to be untenable.
422
WHEREFORE, the petition in G.R. No. 1687702 is GRANTED. Accordingly, the CA

Decision dated September 3, 2004 in CA-G.R. CV No. 78027 is REVERSED and SET
ASIDE. Mactan-Cebu International Airport Authority is ordered to reconvey subject Lot
No. 763-A to petitioners Anunciacion vda. de Ouano, Mario P. Ouano, Leticia Ouano
Arnaiz, and Cielo Ouano Martinez. The Register of Deeds of Cebu City is ordered to effect
the necessary cancellation of title and transfer it in the name of the petitioners within
fifteen (15) days from finality of judgment.
The petition of the Mactan-Cebu International Airport Authority in G.R. No. 168812 is
DENIED, and the CA's Decision and Resolution dated January 14, 2005 and June 29,
2005, respectively, in CA-G.R. CV No. 64356 are AFFIRMED, except insofar as they
awarded attorney's fees and litigation expenses that are hereby DELETED. Accordingly,
Mactan-Cebu International Airport Authority is ordered to reconvey to respondents
Ricardo L. Inocian, Olympia E. Esteves, Emilia E. Bacalla, Restituta E. Montana, and
Raul L. Inocian the litigated Lot Nos. 744-A, 745-A, 746, 762-A, 747, and 761-A; and to
respondents Aletha Suico Magat, Philip M. Suico, Dolores S. dela Cruz, James M. Suico,
Edward M. Suico, Roselyn S. Lawsin, Rex M. Suico, and Kharla Suico-Gutierrez the
litigated Lot Nos. 942 and 947. The Register of Deeds of Cebu City is ordered to effect
the necessary cancellation of title and transfer it in the name of respondents within a
period of fifteen (15) days from finality of judgment.
The foregoing dispositions are subject to QUALIFICATIONS, to apply to these
consolidated petitions, when appropriate, as follows:
(1) Petitioners Ouano, et al., in G.R. No. 1687702 and respondents Ricardo L. Inocian, et
al., in G.R. No. 168812 are ordered to return to the MCIAA the just compensation they or
their predecessors-in-interest received for the expropriation of their respective lots as
stated in Civil Case No. R-1881, within a period of sixty (60) days from finality of judgment;
(2) The MCIAA shall be entitled to RETAIN whatever fruits and income it may have
obtained from the subject expropriated lots without any obligation to refund the same to
the lot owners; and
(3) Petitioners Ouano, et al., in G.R. No. 1687702 and respondents Ricardo L. Inocian, et
al., in G.R. No. 168812 shall RETAIN whatever interests the amounts they received as
just compensation may have earned in the meantime without any obligation to refund the
same to MCIAA.
SO ORDERED.
Corona, C.J., Leonardo-de Castro, Del Castillo and Perez, JJ., concur.
||| (Vda de Ouano v. Republic, G.R. No. 168770 & 168812, [February 9, 2011], 657 PHIL
391-422)
4. NPC VS. HEIRS OF SANGKAY 656 SCRA 60 (2011)
FIRST DIVISION
[G.R. No. 165828. August 24, 2011.]
NATIONAL POWER CORPORATION, petitioner, vs. HEIRS OF MACABANGKIT
SANGKAY, namely: CEBU, BATOWA-AN, SAYANA, NASSER, MANTA, EDGAR,
PUTRI, MONGKOY, * and AMIR, all surnamed MACABANGKIT, respondents.
DECISION
BERSAMIN, J p:
Private property shall not be taken for public use without just compensation.
Section 9, Article III, 1987 Constitution
The application of this provision of the Constitution is the focus of this appeal.
423
Petitioner National Power Corporation (NPC) seeks the review on certiorari of the
decision promulgated on October 5, 2004, 1 whereby the Court of Appeals (CA) affirmed
the decision dated August 13, 1999 and the supplemental decision dated August 18,
1999, ordering NPC to pay just compensation to the respondents, both rendered by the
Regional Trial Court, Branch 1, in Iligan City (RTC).
Antecedents
Pursuant to its legal mandate under Republic Act No. 6395 (An Act Revising the Charter
of the National Power Corporation), NPC undertook the Agus River Hydroelectric Power
Plant Project in the 1970s to generate electricity for Mindanao. The project included the
construction of several underground tunnels to be used in diverting the water flow from
the Agus River to the hydroelectric plants. 2
On November 21, 1997, the respondents, namely: Cebu, Bangowa-an, Sayana, Nasser,
Manta, Edgar, Putri, Mongkoy and Amir, all surnamed Macabangkit (Heirs of
Macabangkit), as the owners of land with an area of 221,573 square meters situated in
Ditucalan, Iligan City, sued NPC in the RTC for the recovery of damages and of the
property, with the alternative prayer for the payment of just compensation. 3 They alleged
that they had belatedly discovered that one of the underground tunnels of NPC that
diverted the water flow of the Agus River for the operation of the Hydroelectric Project in
Agus V, Agus VI and Agus VII traversed their land; that their discovery had occurred in
1995 after Atty. Saidali C. Gandamra, President of the Federation of Arabic Madaris
School, had rejected their offer to sell the land because of the danger the underground
tunnel might pose to the proposed Arabic Language Training Center and Muslims Skills
Development Center; that such rejection had been followed by the withdrawal by Global
Asia Management and Resource Corporation from developing the land into a housing
project for the same reason; that Al-Amanah Islamic Investment Bank of the Philippines
had also refused to accept their land as collateral because of the presence of the
underground tunnel; that the underground tunnel had been constructed without their
knowledge and consent; that the presence of the tunnel deprived them of the agricultural,
commercial, industrial and residential value of their land; and that their land had also
become an unsafe place for habitation because of the loud sound of the water rushing
through the tunnel and the constant shaking of the ground, forcing them and their workers
to relocate to safer grounds. EHSTDA
In its answer with counterclaim, 4 NPC countered that the Heirs of Macabangkit had no
right to compensation under section 3 (f) of Republic Act No. 6395, under which a mere
legal easement on their land was established; that their cause of action, should they be
entitled to compensation, already prescribed due to the tunnel having been constructed
in 1979; and that by reason of the tunnel being an apparent and continuous easement,
any action arising from such easement prescribed in five years.
Ruling of the RTC
On July 23, 1998, an ocular inspection of the land that was conducted by RTC Judge
Mamindiara P. Mangotara and the representatives of the parties resulted in the following
observations and findings:
a. That a concrete post which is about two feet in length from the ground which according
to the claimants is the middle point of the tunnel.
b. That at least three fruit bearing durian trees were uprooted and as a result of the
construction by the defendant of the tunnel and about one hundred coconuts planted died.
c. That underground tunnel was constructed therein. 5
After trial, the RTC ruled in favor of the plaintiffs (Heirs of Macabangkit), 6 decreeing:
WHEREFORE, premises considered:
1. The prayer for the removal or dismantling of defendant's tunnel is denied. However,
defendant is hereby directed and ordered:
424
a) To pay plaintiffs' land with a total area of 227,065 square meters, at the rate of FIVE
HUNDRED (P500.00) PESOS per square meter, or a total of ONE HUNDRED
THIRTEEN MILLION FIVE HUNDRED THIRTY TWO THOUSAND AND FIVE HUNDRED
(P113,532,500.00) PESOS, plus interest, as actual damages or just compensation;
ETDaIC
b) To pay plaintiff a monthly rental of their land in the amount of THIRTY THOUSAND
(P30,000.00) PESOS from 1979 up to July 1999 with 12% interest per annum;
c) To pay plaintiffs the sum of TWO HUNDRED THOUSAND (P200,000.00) PESOS, as
moral damages;
d) To pay plaintiffs, the sum of TWO HUNDRED THOUSAND (P200,000.00) PESOS, as
exemplary damages;
e) To pay plaintiffs, the sum equivalent to 15% of the total amount awarded, as attorney's
fees, and to pay the cost.
SO ORDERED.
The RTC found that NPC had concealed the construction of the tunnel in 1979 from the
Heirs of Macabangkit, and had since continuously denied its existence; that NPC had
acted in bad faith by taking possession of the subterranean portion of their land to
construct the tunnel without their knowledge and prior consent; that the existence of the
tunnel had affected the entire expanse of the land, and had restricted their right to
excavate or to construct a motorized deep well; and that they, as owners, had lost the
agricultural, commercial, industrial and residential value of the land.
The RTC fixed the just compensation at P500.00/square meter based on the testimony
of Dionisio Banawan, OIC-City Assessor of Iligan City, to the effect that the appraised
value of the adjoining properties ranged from P700.00 to P750.00, while the appraised
value of their affected land ranged from P400.00 to P500.00. The RTC also required NPC
to pay rentals from 1979 due to its bad faith in concealing the construction of the tunnel
from the Heirs of Macabangkit.
On August 18, 1999, the RTC issued a supplemental decision, 7 viz.:
Upon a careful review of the original decision dated August 13, 1999, a sentence should
be added to paragraph 1(a) of the dispositive portion thereof, to bolster, harmonize, and
conform to the findings of the Court, which is quoted hereunder, to wit:
"Consequently, plaintiffs' land or properties are hereby condemned in favor of defendant
National Power Corporation, upon payment of the aforesaid sum."
Therefore, paragraph 1(a) of the dispositive portion of the original decision should read,
as follows:
a) To pay plaintiffs' land with a total area of 227,065 square meters, at the rate of FIVE
HUNDRED (P500.00) PESOS per square meter, or a total of ONE HUNDRED
THIRTEEN MILLION FIVE HUNDRED THIRTY TWO THOUSAND AND FIVE HUNDRED
(P113,532,500.00) PESOS, plus interest, as actual damages or just compensation;
Consequently, plaintiffs' land or properties are hereby condemned in favor of defendant
National Power Corporation, upon payment of the aforesaid sum; TADCSE
This supplemental decision shall be considered as part of paragraph 1(a) of the
dispositive portion of the original decision.
Furnish copy of this supplemental decision to all parties immediately.
SO ORDERED.
425
On its part, NPC appealed to the CA on August 25, 1999. 8

Earlier, on August 18, 1999, the Heirs of Macabangkit filed an urgent motion for execution
of judgment pending appeal. 9 The RTC granted the motion and issued a writ of
execution, 10 prompting NPC to assail the writ by petition for certiorari in the CA. On
September 15, 1999, the CA issued a temporary restraining order (TRO) to enjoin the
RTC from implementing its decision. The Heirs of Macabangkit elevated the ruling of the
CA (G.R. No. 141447), but the Court upheld the CA on May 4, 2006. 11
Ruling of the CA
NPC raised only two errors in the CA, namely:
I
THE COURT A QUO SERIOUSLY ERRED IN RULING THAT NAPOCOR'S
UNDERGROUND TUNNEL IN ITS AGUS RIVER HYDRO-ELECTRIC PLANT PROJECT
TRAVERSED AND/OR AFFECTED APPELLEES' PROPERTY AS THERE IS NO
CLEAR EVIDENCE INDUBITABLY ESTABLISHING THE SAME
II
THE COURT A QUO SERIOUSLY ERRED IN GRANTING APPELLEES' CLAIMS IN
THEIR
ENTIRETY
FOR
GRANTING
ARGUENDO
THAT
NAPOCOR'S
UNDERGROUND TUNNEL INDEED TRAVERSED APPELLEE'S PROPERTY, THEIR
CAUSE OF ACTION HAD ALREADY BEEN BARRED BY PRESCRIPTION, ESTOPPEL
AND LACHES
On October 5, 2004, the CA affirmed the decision of the RTC, holding that the testimonies
of NPC's witness Gregorio Enterone and of the respondents' witness Engr. Pete
Sacedon, the topographic survey map, the sketch map, and the ocular inspection report
sufficiently established the existence of the underground tunnel traversing the land of the
Heirs of Macabangkit; that NPC did not substantiate its defense that prescription already
barred the claim of the Heirs of Macabangkit; and that Section 3 (i) of R.A. No. 6395,
being silent about tunnels, did not apply, viz.:
As regard Section 3(i) of R.A. No. 6395 (An Act Revising the Charter of the National
Power Corporation), it is submitted that the same provision is not applicable. There is
nothing in Section 3(i) of said law governing claims involving tunnels. The same provision
is applicable to those projects or facilities on the surface of the land, that can easily be
discovered, without any mention about the claims involving tunnels, particularly those
surreptitiously constructed beneath the surface of the land, as in the instant case.
SCDaHc
Now, while it is true that Republic Act No. 6395 authorizes NAPOCOR to take water from
any public stream, river, creek, lake, spring or waterfall in the Philippines for the realization
of the purposes specified therein for its creation; to intercept and divert the flow of waters
from lands of riparian owners (in this case, the "Heirs"), and from persons owning or
interested in water which are or may be necessary to said purposes, the same Act
expressly mandates the payment of just compensation.
WHEREFORE, premises considered, the instant appeal is hereby DENIED for lack of
merit. Accordingly, the appealed Decision dated August 13, 1999, and the supplemental
Decision dated August 18, 1999, are hereby AFFIRMED in toto.
SO ORDERED. 12
Issue
NPC has come to the Court, assigning the lone error that:
THE APPELLATE COURT ERRED ON A QUESTION OF LAW WHEN IT AFFIRMED
THE DECISION AND SUPPLEMENTAL DECISION OF THE COURT A QUO
426
DIRECTING AND ORDERING PETITIONER TO PAY JUST COMPENSATION TO

RESPONDENTS.
NPC reiterates that witnesses Enterone and Sacedon lacked personal knowledge about
the construction and existence of the tunnel and were for that reason not entitled to
credence; and that the topographic and relocation maps prepared by Sacedon should not
be a basis to prove the existence and location of the tunnel due to being self-serving.
cCTIaS
NPC contends that the CA should have applied Section 3 (i) of Republic Act No. 6395,
which provided a period of only five years from the date of the construction within which
the affected landowner could bring a claim against it; and that even if Republic Act No.
6395 should be inapplicable, the action of the Heirs of Macabangkit had already
prescribed due to the underground tunnel being susceptible to acquisitive prescription
after the lapse of 10 years pursuant to Article 620 of the Civil Code due to its being a
continuous and apparent legal easement under Article 634 of the Civil Code.
The issues for resolution are, therefore, as follows:
(1) Whether the CA and the RTC erred in holding that there was an underground tunnel
traversing the Heirs of Macabangkit's land constructed by NPC; and
(2) Whether the Heirs of Macabangkit's right to claim just compensation had prescribed
under section 3 (i) of Republic Act No. 6395, or, alternatively, under Article 620 and Article
646 of the Civil Code.
Ruling
We uphold the liability of NPC for payment of just compensation.
1.
Factual findings of the RTC,
when affirmed by the CA, are binding
The existence of the tunnel underneath the land of the Heirs of Macabangkit, being a
factual matter, cannot now be properly reviewed by the Court, for questions of fact are
beyond the pale of a petition for review on certiorari. Moreover, the factual findings and
determinations by the RTC as the trial court are generally binding on the Court,
particularly after the CA affirmed them. 13 Bearing these doctrines in mind, the Court
should rightly dismiss NPC's appeal. CIScaA
NPC argues, however, that this appeal should not be dismissed because the Heirs of
Macabangkit essentially failed to prove the existence of the underground tunnel. It insists
that the topographic survey map and the right-of-way reap presented by the Heirs of
Macabangkit did not at all establish the presence of any underground tunnel.
NPC still fails to convince.
Even assuming, for now, that the Court may review the factual findings of the CA and the
RTC, for NPC to insist that the evidence on the existence of the tunnel was not adequate
and incompetent remains futile. On the contrary, the evidence on the tunnel was
substantial, for the significance of the topographic survey map and the sketch map (as
indicative of the extent and presence of the tunnel construction) to the question on the
existence of the tunnel was strong, as the CA correctly projected in its assailed decision,
viz.:
Among the pieces of documentary evidence presented showing the existence of the said
tunnel beneath the subject property is the topographic survey map. The topographic
survey map is one conducted to know about the location and elevation of the land and all
existing structures above and underneath it. Another is the Sketch Map which shows the
location and extent of the land traversed or affected by the said tunnel. These two (2)
pieces of documentary evidence readily point the extent and presence of the tunnel
construction coming from the power cavern near the small man-made lake which is the
inlet and approach tunnel, or at a distance of about two (2) kilometers away from the land
of the plaintiffs-appellees, and then traversing the entire and the whole length of the
plaintiffs-appellees' property, and the outlet channel of the tunnel is another small manmade lake. This is a sub-terrain construction, and considering that both inlet and outlet
427
are bodies of water, the tunnel can hardly be noticed. All constructions done were beneath
the surface of the plaintiffs-appellees' property. This explains why they could never obtain
any knowledge of the existence of such tunnel during the period that the same was
constructed and installed beneath their property. 14
The power cavern and the inlet and outlet channels established the presence of the
underground tunnel, based on the declaration in the RTC by Sacedon, a former employee
of the NPC. 15 It is worthy to note that NPC did not deny the existence of the power
cavern, and of the inlet and outlet channels adverted to and as depicted in the topographic
survey map and the sketch map. The CA cannot be faulted for crediting the testimony of
Sacedon despite the effort of NPC to discount his credit due to his not being an expert
witness, simply because Sacedon had personal knowledge based on his being NPC's
principal engineer and supervisor tasked at one time to lay out the tunnels and
transmission lines specifically for the hydroelectric projects, 16 and to supervise the
construction of the Agus 1 Hydroelectric Plant itself 17 from 1978 until his retirement from
NPC. 18 Besides, he declared that he personally experienced the vibrations caused by
the rushing currents in the tunnel, particularly near the outlet channel. 19 Under any
circumstances, Sacedon was a credible and competent witness.
The ocular inspection actually confirmed the existence of the tunnel underneath the land
of the Heirs of Macabangkit. Thus, the CA observed:
More so, the Ocular inspection conducted on July 23, 1998 further bolstered such claim
of the existence and extent of such tunnel. This was conducted by a team composed of
the Honorable Presiding Judge of the Regional Trial Court, Branch 01, Lanao del Norte,
herself and the respective lawyers of both of the parties and found that, among others,
said underground tunnel was constructed beneath the subject property. 20
It bears noting that NPC did not raise any issue against or tender any contrary comment
on the ocular inspection report. CEIHcT
2.
Five-year prescriptive period under Section 3 (i) of Republic
Act No. 6395 does not apply to claims for just compensation
The CA held that Section 3 (i) of Republic Act No. 6395 had no application to this action
because it covered facilities that could be easily discovered, not tunnels that were
inconspicuously constructed beneath the surface of the land. 21
NPC disagrees, and argues that because Article 635 22 of the Civil Code directs the
application of special laws when an easement, such as the underground tunnel, was
intended for public use, the law applicable was Section 3 (i) of Republic Act No. 6395, as
amended, which limits the action for recovery of compensation to five years from the date
of construction. It posits that the five-year prescriptive period already set in due to the
construction of the underground tunnel having been completed in 1979 yet.
Without necessarily adopting the reasoning of the CA, we uphold its conclusion that
prescription did not bar the present action to recover just compensation.
Section 3 (i) of Republic Act No. 6395, the cited law, relevantly provides:
Section 3. Powers and General Functions of the Corporation. The powers, functions,
rights and activities of the Corporation shall be the following:
xxx xxx xxx
(i) To construct works across, or otherwise, any stream, watercourse, canal, ditch, flume,
street, avenue, highway or railway of private and public ownership, as the location of said
works may require: Provided, That said works be constructed in such a manner as not to
endanger life or property; And provided, further, That the stream, watercourse, canal
ditch, flume, street, avenue, highway or railway so crossed or intersected be restored as
near as possible to their former state, or in a manner not to impair unnecessarily their
usefulness. Every person or entity whose right of way or property is lawfully crossed or
intersected by said works shall not obstruct any such crossings or intersection and shall
grant the Board or its representative, the proper authority for the execution of such work.
428
The Corporation is hereby given the right of way to locate, construct and maintain such
works over and throughout the lands owned by the Republic of the Philippines or any of
its branches and political subdivisions. The Corporation or its representative may also
enter upon private property in the lawful performance or prosecution of its business and
purposes, including the construction of the transmission lines thereon; Provided, that the
owner of such property shall be indemnified for any actual damage caused thereby;
Provided, further, That said action for damages is filed within five years after the rights of
way, transmission lines, substations, plants or other facilities shall have been established;
Provided, finally, That after said period, no suit shall be brought to question the said rights
of way, transmission lines, substations, plants or other facilities; EDaHAT
A cursory reading shows that Section 3 (i) covers the construction of "works across, or
otherwise, any stream, watercourse, canal, ditch, flume, street, avenue, highway or
railway of private and public ownership, as the location of said works may require." It is
notable that Section 3 (i) includes no limitation except those enumerated after the term
works. Accordingly, we consider the term works as embracing all kinds of constructions,
facilities, and other developments that can enable or help NPC to meet its objectives of
developing hydraulic power expressly provided under paragraph (g) of Section 3. 23 The
CA's restrictive construal of Section 3 (i) as exclusive of tunnels was obviously
unwarranted, for the provision applies not only to development works easily discoverable
or on the surface of the earth but also to subterranean works like tunnels. Such
interpretation accords with the fundamental guideline in statutory construction that when
the law does not distinguish, so must we not. 24 Moreover, when the language of the
statute is plain and free from ambiguity, and expresses a single, definite, and sensible
meaning, that meaning is conclusively presumed to be the meaning that the Congress
intended to convey. 25
Even so, we still cannot side with NPC.
We rule that the prescriptive period provided under Section 3 (i) of Republic Act No. 6395
is applicable only to an action for damages, and does not extend to an action to recover
just compensation like this case. Consequently, NPC cannot thereby bar the right of the
Heirs of Macabangkit to recover just compensation for their land.
The action to recover just compensation from the State or its expropriating agency differs
from the action for damages. The former, also known as inverse condemnation, has the
objective to recover the value of property taken in fact by the governmental defendant,
even though no formal exercise of the power of eminent domain has been attempted by
the taking agency. 26 Just compensation is the full and fair equivalent of the property
taken from its owner by the expropriator. The measure is not the taker's gain, but the
owner's loss. The word just is used to intensify the meaning of the word compensation in
order to convey the idea that the equivalent to be rendered for the property to be taken
shall be real, substantial, full, and ample. 27 On the other hand, the latter action seeks to
vindicate a legal wrong through damages, which may be actual, moral, nominal,
temperate, liquidated, or exemplary. When a right is exercised in a manner not
conformable with the norms enshrined in Article 19 28 and like provisions on human
relations in the Civil Code, and the exercise results to the damage of another, a legal
wrong is committed and the wrongdoer is held responsible. 29
The two actions are radically different in nature and purpose. The action to recover just
compensation is based on the Constitution 30 while the action for damages is predicated
on statutory enactments. Indeed, the former arises from the exercise by the State of its
power of eminent domain against private property for public use, but the latter emanates
from the transgression of a right. The fact that the owner rather than the expropriator
brings the former does not change the essential nature of the suit as an inverse
condemnation, 31 for the suit is not based on tort, but on the constitutional prohibition
against the taking of property without just compensation. 32 It would very well be contrary
to the clear language of the Constitution to bar the recovery of just compensation for
private property taken for a public use solely on the basis of statutory prescription.
aTSEcA
429
Due to the need to construct the underground tunnel, NPC should have first moved to
acquire the land from the Heirs of Macabangkit either by voluntary tender to purchase or
through formal expropriation proceedings. In either case, NPC would have been liable to
pay to the owners the fair market value of the land, for Section 3 (h) of Republic Act No.
6395 expressly requires NPC to pay the fair market value of such property at the time of
the taking, thusly:
(h) To acquire, promote, hold, transfer, sell, lease, rent, mortgage, encumber and
otherwise dispose of property incident to, or necessary, convenient or proper to carry out
the purposes for which the Corporation was created: Provided, That in case a right of way
is necessary for its transmission lines, easement of right of way shall only be sought:
Provided, however, That in case the property itself shall be acquired by purchase, the
cost thereof shall be the fair market value at the time of the taking of such property.
This was what NPC was ordered to do in National Power Corporation v. Ibrahim, 33 where
NPC had denied the right of the owners to be paid just compensation despite their land
being traversed by the underground tunnels for siphoning water from Lake Lanao needed
in the operation of Agus II, Agus III, Agus IV, Agus VI and Agus VII Hydroelectric Projects
in Saguiran, Lanao del Sur, in Nangca and Balo-I in Lanao del Norte and in Ditucalan and
Fuentes in Iligan City. There, NPC similarly argued that the underground tunnels
constituted a mere easement that did not involve any loss of title or possession on the
part of the property owners, but the Court resolved against NPC, to wit:
Petitioner contends that the underground tunnels in this case constitute an easement
upon the property of the respondents which does not involve any loss of title or
possession. The manner in which the easement was created by petitioner, however,
violates the due process rights of respondents as it was without notice and indemnity to
them and did not go through proper expropriation proceedings. Petitioner could have, at
any time, validly exercised the power of eminent domain to acquire the easement over
respondents' property as this power encompasses not only the taking or appropriation of
title to and possession of the expropriated property but likewise covers even the
imposition of a mere burden upon the owner of the condemned property. Significantly,
though, landowners cannot be deprived of their right over their land until expropriation
proceedings are instituted in court. The court must then see to it that the taking is for
public use, that there is payment of just compensation and that there is due process of
law. 34
3.
NPC's construction of the tunnel
constituted taking of the land, and
entitled owners to just compensation
The Court held in National Power Corporation v. Ibrahim that NPC was "liable to pay not
merely an easement fee but rather the full compensation for land" traversed by the
underground tunnels, viz.:
In disregarding this procedure and failing to recognize respondents' ownership of the subterrain portion, petitioner took a risk and exposed itself to greater liability with the passage
of time. It must be emphasized that the acquisition of the easement is not without
expense. The underground tunnels impose limitations on respondents' use of the property
for an indefinite period and deprive them of its ordinary use. Based upon the foregoing,
respondents are clearly entitled to the payment of just compensation. Notwithstanding the
fact that petitioner only occupies the sub-terrain portion, it is liable to pay not merely an
easement fee but rather the full compensation for land. This is so because in this case,
the nature of the easement practically deprives the owners of its normal beneficial use.
Respondents, as the owner of the property thus expropriated, are entitled to a just
compensation which should be neither more nor less, whenever it is possible to make the
assessment, than the money equivalent of said property. 35
Here, like in National Power Corporation v. Ibrahim, NPC constructed a tunnel underneath
the land of the Heirs of Macabangkit without going through formal expropriation
430
proceedings and without procuring their consent or at least informing them beforehand of
the construction. NPC's construction adversely affected the owners' rights and interests
because the subterranean intervention by NPC prevented them from introducing any
developments on the surface, and from disposing of the land or any portion of it, either
by sale or mortgage. STHAaD
Did such consequence constitute taking of the land as to entitle the owners to just
compensation?
We agree with both the RTC and the CA that there was a full taking on the part of NPC,
notwithstanding that the owners were not completely and actually dispossessed. It is
settled that the taking of private property for public use, to be compensable, need not be
an actual physical taking or appropriation. 36 Indeed, the expropriator's action may be
short of acquisition of title, physical possession, or occupancy but may still amount to a
taking. 37 Compensable taking includes destruction, restriction, diminution, or interruption
of the rights of ownership or of the common and necessary use and enjoyment of the
property in a lawful manner, lessening or destroying its value. 38 It is neither necessary
that the owner be wholly deprived of the use of his property, 39 nor material whether the
property is removed from the possession of the owner, or in any respect changes hands.
40
As a result, NPC should pay just compensation for the entire land. In that regard, the RTC
pegged just compensation at P500.00/square meter based on its finding on what the
prevailing market value of the property was at the time of the filing of the complaint, and
the CA upheld the RTC.
We affirm the CA, considering that NPC did not assail the valuation in the CA and in this
Court. NPC's silence was probably due to the correctness of the RTC's valuation after
careful consideration and weighing of the parties' evidence, as follows:
The matter of what is just compensation for these parcels of land is a matter of evidence.
These parcels of land is (sic) located in the City of Iligan, the Industrial City of the South.
Witness Dionisio Banawan, OIC-City Assessor's Office, testified, "Within that area, that
area is classified as industrial and residential. That plaintiffs' land is adjacent to many
subdivisions and that is within the industrial classification. He testified and identified
Exhibits "AA" and "AA-1", a Certification, dated April 4, 1997, showing that the appraised
value of plaintiffs land ranges from P400.00 to P500.00 per square meter (see, TSN,
testimony of Dionisio Banawan, pp. 51, 57, and 71, February 9, 1999). Also, witness
Banawan, testified and identified Two (2) Deeds of Sale, marked as Exhibits "AA-2" and
"AA-3,["] showing that the appraised value of the land adjoining or adjacent to plaintiff
land ranges from P700.00 to P750.00 per square meter. As between the much lower price
of the land as testified by defendant's witness Gregorio Enterone, and that of the City
Assessor of Iligan City, the latter is more credible. Considering however, that the
appraised value of the land in the area as determined by the City Assessor's Office is not
uniform, this Court, is of the opinion that the reasonable amount of just compensation of
plaintiff's land should be fixed at FIVE HUNDRED (500.00) PESOS, per square meter. .
. . . 41
The RTC based its fixing of just compensation ostensibly on the prevailing market value
at the time of the filing of the complaint, instead of reckoning from the time of the taking
pursuant to Section 3 (h) of Republic Act No. 6395. The CA did not dwell on the reckoning
time, possibly because NPC did not assign that as an error on the part of the RTC.
ScaAET
We rule that the reckoning value is the value at the time of the filing of the complaint, as
the RTC provided in its decision. Compensation that is reckoned on the market value
prevailing at the time either when NPC entered or when it completed the tunnel, as NPC
submits, would not be just, for it would compound the gross unfairness already caused to
the owners by NPC's entering without the intention of formally expropriating the land, and
without the prior knowledge and consent of the Heirs of Macabangkit. NPC's entry denied
elementary due process of law to the owners since then until the owners commenced the
inverse condemnation proceedings. The Court is more concerned with the necessity to
prevent NPC from unjustly profiting from its deliberate acts of denying due process of law
431
to the owners. As a measure of simple justice and ordinary fairness to them, therefore,
reckoning just compensation on the value at the time the owners commenced these
inverse condemnation proceedings is entirely warranted.
In National Power Corporation v. Court of Appeals, 42 a case that involved the similar
construction of an underground tunnel by NPC without the prior consent and knowledge
of the owners, and in which we held that the basis in fixing just compensation when the
initiation of the action preceded the entry into the property was the time of the filing of the
complaint, not the time of taking, 43 we pointed out that there was no taking when the
entry by NPC was made "without intent to expropriate or was not made under warrant or
color of legal authority."
4.
Awards for rentals, moral damages, exemplary
damages, and attorney's fees are deleted
for insufficiency of factual and legal bases
The CA upheld the RTC's granting to the Heirs of Macabangkit of rentals of
P30,000.00/month "from 1979 up to July 1999 with 12% interest per annum" by finding
NPC guilty of bad faith in taking possession of the land to construct the tunnel without
their knowledge and consent. TAcSCH
Granting rentals is legally and factually bereft of justification, in light of the taking of the
land being already justly compensated. Conformably with the ruling in Manila International
Airport Authority v. Rodriguez, 44 in which the award of interest was held to render the
grant of back rentals unwarranted, we delete the award of back rentals and in its place
prescribe interest of 12% interest per annum from November 21, 1997, the date of the
filing of the complaint, until the full liability is paid by NPC. The imposition of interest of
12% interest per annum follows a long line of pertinent jurisprudence, 45 whereby the
Court has fixed the rate of interest on just compensation at 12% per annum whenever the
expropriator has not immediately paid just compensation.
The RTC did not state any factual and legal justifications for awarding to the Heirs of
Macabangkit moral and exemplary damages each in the amount of P200,000.00. The
awards just appeared in the fallo of its decision. Neither did the CA proffer any
justifications for sustaining the RTC on the awards. We consider the omissions of the
lower courts as pure legal error that we feel bound to correct even if NPC did not submit
that for our consideration. There was, to begin with, no factual and legal bases mentioned
for the awards. It is never trite to remind that moral and exemplary damages, not by any
means liquidated or assessed as a matter of routine, always require evidence that
establish the circumstances under which the claimant is entitled to them. Moreover, the
failure of both the RTC and the CA to render the factual and legal justifications for the
moral and exemplary damages in the body of their decisions immediately demands the
striking out of the awards for being in violation of the fundamental rule that the decision
must clearly state the facts and the law on which it is based. Without the factual and legal
justifications, the awards are exposed as the product of conjecture and speculation, which
have no place in fair judicial adjudication.
We also reverse and set aside the decree of the RTC for NPC to pay to the Heirs of
Macabangkit "the sum equivalent to 15% of the total amount awarded, as attorney's fees,
and to pay the cost." The body of the decision did not state the factual and legal reasons
why NPC was liable for attorney's fees. The terse statement found at the end of the body
of the RTC's decision, stating: ". . . The contingent attorney's fee is hereby reduced from
20% to only 15% of the total amount of the claim that may be awarded to plaintiffs,"
without more, did not indicate or explain why and how the substantial liability of NPC for
attorney's fees could have arisen and been determined.
In assessing attorney's fees against NPC and in favor of the respondents, the RTC
casually disregarded the fundamental distinction between the two concepts of attorney's
fees the ordinary and the extraordinary. These concepts were aptly distinguished in
Traders Royal Bank Employees Union-Independent v. NLRC, 46 thuswise:
There are two commonly accepted concepts of attorney's fees, the so-called ordinary and
extraordinary. In its ordinary concept, an attorney's fee is the reasonable compensation
paid to a lawyer by his client for the legal services he has rendered to the latter. The basis
432
of this compensation is the fact of his employment by and his agreement with the client.
DHSCEc
In its extraordinary concept, an attorney's fee is an indemnity for damages ordered by the
court to be paid by the losing party in a litigation. The basis of this is any of the cases
provided by law where such award can be made, such as those authorized in Article 2208,
Civil Code,and is payable not to the lawyer but to the client, unless they have agreed that
the award shall pertain to the lawyer as additional compensation or as part thereof.
By referring to the award as contingency fees, and reducing the award from 20% to 15%,
the RTC was really referring to a supposed agreement on attorney's fees between the
Heirs of Macabangkit and their counsel. As such, the concept of attorney's fees involved
was the ordinary. Yet, the inclusion of the attorney's fees in the judgment among the
liabilities of NPC converted the fees to extraordinary. We have to disagree with the RTC
thereon, and we express our discomfort that the CA did not do anything to excise the
clearly erroneous and unfounded grant.
An award of attorney's fees has always been the exception rather than the rule. To start
with, attorney's fees are not awarded every time a party prevails in a suit. 47 Nor should
an adverse decision ipso facto justify an award of attorney's fees to the winning party. 48
The policy of the Court is that no premium should be placed on the right to litigate. 49
Too, such fees, as part of damages, are assessed only in the instances specified in Art.
2208, Civil Code. 50 Indeed, attorney's fees are in the nature of actual damages. 51 But
even when a claimant is compelled to litigate with third persons or to incur expenses to
protect his rights, attorney's fees may still be withheld where no sufficient showing of bad
faith could be reflected in a party's persistence in a suit other than an erroneous conviction
of the righteousness of his cause. 52 And, lastly, the trial court must make express
findings of fact and law that bring the suit within the exception. What this demands is that
the factual, legal or equitable justifications for the award must be set forth not only in the
fallo but also in the text of the decision, or else, the award should be thrown out for being
speculative and conjectural. 53
Sound policy dictates that even if the NPC failed to raise the issue of attorney's fees, we
are not precluded from correcting the lower courts' patently erroneous application of the
law. 54 Indeed, the Court, in supervising the lower courts, possesses the ample authority
to review legal matters like this one even if not specifically raised or assigned as error by
the parties. aIETCA
5.
Attorney's fees under quantum meruit principle
are fixed at 10% of the judgment award
Based on the pending motions of Atty. Macarupung Dibaratun and Atty. Manuel D.
Ballelos to assert their respective rights to attorney's fees, both contending that they
represented the Heirs of Macabangkit in this case, a conflict would ensue from the finality
of the judgment against NPC.
A look at the history of the legal representation of the Heirs of Macabangkit herein
provides a helpful predicate for resolving the conflict.
Atty. Dibaratun was the original counsel of the Heirs of Macabangkit. When the appeal
was submitted for decision in the CA, 55 Atty. Ballelos filed his entry of appearance, 56
and a motion for early decision. 57 Atty. Ballelos subsequently filed also a manifestation,
58 supplemental manifestation, 59 reply, 60 and ex parte motion reiterating the motion
for early decision. 61 It appears that a copy of the CA's decision was furnished solely to
Atty. Ballelos. However, shortly before the rendition of the decision, Atty. Dibaratun filed
in the CA a motion to register attorney's lien, 62 alleging that he had not withdrawn his
appearance and had not been aware of the entry of appearance by Atty. Ballelos. A
similar motion was also received by the Court from Atty. Dibaratun a few days after the
petition for review was filed. 63 Thus, on February 14, 2005, 64 the Court directed Atty.
Dibaratun to enter his appearance herein. He complied upon filing the comment. 65
Amir Macabangkit confirmed Atty. Dibaratun's representation through an ex parte
manifestation that he filed in his own behalf and on behalf of his siblings Mongkoy and
433
Putri. 66 Amir reiterated his manifestation on March 6, 2006, 67 and further imputed
malpractice to Atty. Ballelos for having filed an entry of appearance bearing Amir's forged
signature and for plagiarism, i.e., copying verbatim the arguments contained in the
pleadings previously filed by Atty. Dibaratun. 68
On September 11, 2008, Atty. Ballelos submitted two motions, to wit: (a) a manifestation
and motion authorizing a certain Abdulmajeed Djamla to receive his attorney's fees
equivalent of 15% of the judgment award, 69 and (b) a motion to register his attorney's
lien that he claimed was contingent. 70
Both Atty. Dibaratun and Atty. Ballelos posited that their entitlement to attorney's fees was
contingent. Yet, a contract for a contingent fees is an agreement in writing by which the
fees, usually a fixed percentage of what may be recovered in the action, are made to
depend upon the success in the effort to enforce or defend a supposed right. Contingent
fees depend upon an express contract, without which the attorney can only recover on
the basis of quantum meruit. 71 With neither Atty. Dibaratun nor Atty. Ballelos presenting
a written agreement bearing upon their supposed contingent fees, the only way to
determine their right to appropriate attorney's fees is to apply the principle of quantum
meruit.
Quantum meruit literally meaning as much as he deserves is used as basis for
determining an attorney's professional fees in the absence of an express agreement. 72
The recovery of attorney's fees on the basis of quantum meruit is a device that prevents
an unscrupulous client from running away with the fruits of the legal services of counsel
without paying for it and also avoids unjust enrichment on the part of the attorney himself.
73 An attorney must show that he is entitled to reasonable compensation for the effort in
pursuing the client's cause, taking into account certain factors in fixing the amount of legal
fees. 74
Rule 20.01 of the Code of Professional Responsibility lists the guidelines for determining
the proper amount of attorney fees, to wit:
Rule 20.1 A lawyer shall be guided by the following factors in determining his fees:
a) The time spent and the extent of the services rendered or required; IaAScD
b) The novelty and difficult of the questions involved;
c) The important of the subject matter;
d) The skill demanded;
e) The probability of losing other employment as a result of acceptance of the proffered
case;
f) The customary charges for similar services and the schedule of fees of the IBP chapter
to which he belongs;
g) The amount involved in the controversy and the benefits resulting to the client from the
service;
h) The contingency or certainty of compensation;
i) The character of the employment, whether occasional or established; and ECDaTI
j) The professional standing of the lawyer.
In the event of a dispute as to the amount of fees between the attorney and his client, and
the intervention of the courts is sought, the determination requires that there be evidence
to prove the amount of fees and the extent and value of the services rendered, taking into
account the facts determinative thereof. 75 Ordinarily, therefore, the determination of the
attorney's fees on quantum meruit is remanded to the lower court for the purpose.
434
However, it will be just and equitable to now assess and fix the attorney's fees of both
attorneys in order that the resolution of "a comparatively simple controversy," as Justice
Regalado put it in Traders Royal Bank Employees Union-Independent v. NLRC, 76 would
not be needlessly prolonged, by taking into due consideration the accepted guidelines
and so much of the pertinent data as are extant in the records.
Atty. Dibaratun and Atty. Ballelos each claimed attorney's fees equivalent to 15% of the
principal award of P113,532,500.00, which was the amount granted by the RTC in its
decision. Considering that the attorney's fees will be defrayed by the Heirs of Macabangkit
out of their actual recovery from NPC, giving to each of the two attorney's 15% of the
principal award as attorney's fees would be excessive and unconscionable from the point
of view of the clients. Thus, the Court, which holds and exercises the power to fix
attorney's fees on a quantum meruit basis in the absence of an express written agreement
between the attorney and the client, now fixes attorney's fees at 10% of the principal
award of P113,532,500.00.
Whether it is Atty. Dibaratun or Atty. Ballelos, or both, who should receive attorney's fees
from the Heirs of Macabangkit is a question that the Court must next determine and settle
by considering the amount and quality of the work each performed and the results each
obtained. HcSDIE
Atty. Dibaratun, the attorney from the outset, unquestionably carried the bulk of the legal
demands of the case. He diligently prepared and timely filed in behalf of the Heirs of
Macabangkit every pleading and paper necessary in the full resolution of the dispute,
starting from the complaint until the very last motion filed in this Court. He consistently
appeared during the trial, and examined and cross-examined all the witnesses presented
at that stage of the proceedings. The nature, character, and substance of each pleading
and the motions he prepared for the Heirs of Macabangkit indicated that he devoted
substantial time and energy in researching and preparing the case for the trial. He even
advanced P250,000.00 out of his own pocket to defray expenses from the time of the
filing of the motion to execute pending appeal until the case reached the Court. 77 His
representation of all the Heirs of Macabangkit was not denied by any of them.
We note that Atty. Dibaratun possessed some standing in the legal profession and in his
local community. He formerly served as a member of the Board of Director of the
Integrated Bar of the Philippines (IBP), Lanao del Norte-Iligan City Chapter, and was an
IBP national awardee as Best Legal Aid Committee Chairman. He taught at Mindanao
State University College of Law Extension. He was a Municipal Mayor of Matungao,
Lanao del Norte, and was enthroned Sultan a Gaus.
In contrast, not much about the character and standing of Atty. Ballelos, as well as the
nature and quality of the legal services he rendered for the Heirs of Macabangkit are in
the records. The motions he filed in the Court and in the CA lacked enlightening research
and were insignificant to the success of the clients' cause. His legal service, if it can be
called that, manifested no depth or assiduousness, judging from the quality of the
pleadings from him. His written submissions in the case appeared either to have been
lifted verbatim from the pleadings previously filed by Atty. Dibaratun, or to have been
merely quoted from the decisions and resolutions of the RTC and the CA. Of the Heirs of
Macabangkit, only Cebu, Batowa-an, Sayana, Nasser, Manta, Mongkoy 78 and Edgar
gave their consent to Atty. Ballelos to appear in their behalf in the CA, which he did despite
Atty. Dibaratun not having yet filed any withdrawal of his appearance. The Court did not
receive any notice of appearance for the Heirs of Macabangkit from Atty. Ballelos, but
that capacity has meanwhile become doubtful in the face of Amir's strong denial of having
retained him.
In fairness and justice, the Court accords full recognition to Atty. Dibaratun as the counsel
de parte of the Heirs of Macabangkit who discharged his responsibility in the prosecution
of the clients' cause to its successful end. It is he, not Atty. Ballelos, who was entitled to
the full amount of attorney's fees that the clients ought to pay to their attorney. Given the
amount and quality of his legal work, his diligence and the time he expended in ensuring
the success of his prosecution of the clients' cause, he deserves the recognition,
notwithstanding that some of the clients might appear to have retained Atty. Ballelos after
the rendition of a favorable judgment. 79
435
Atty. Ballelos may claim only from Cebu, Batowa-an, Sayana, Nasser, Manta and Edgar,
the only parties who engaged him. The Court considers his work in the case as very
minimal. His compensation under the quantum meruit principle is fixed at P5,000.00, and
only the Heirs of Macabangkit earlier named are liable to him. EDHTAI
WHEREFORE, the Court AFFIRMS the decision promulgated on October 5, 2004 by the
Court of Appeals, subject to the following MODIFICATIONS, to wit:
(a) Interest at the rate of 12% per annum is IMPOSED on the principal amount of
P113,532,500.00 as just compensation, reckoned from the filing of the complaint on
November 21, 1997 until the full liability is paid;
(b) The awards of P30,000.00 as rental fee, P200,000.00 as moral damages, and
P200,000.00 as exemplary damages are DELETED; and
(c) The award of 15% attorney's fees decreed to be paid by National Power Corporation
to the Heirs of Macabangkit is DELETED. aEcADH
The Court PARTLY GRANTS the motion to register attorney's lien filed by Atty.
Macarupung Dibaratun, and FIXES Atty. Dibaratun's attorney's fees on the basis of
quantum meruit at 10% of the principal award of P113,532,500.00.
The motion to register attorney's lien of Atty. Manuel D. Ballelos is PARTLY GRANTED,
and Atty. Ballelos is DECLARED ENTITLED TO RECOVER from Cebu, Batowa-an,
Sayana, Nasser, Manta and Edgar, all surnamed Macabangkit, the amount of P5,000.00
as attorney's fees on the basis of quantum meruit.
Costs of suit to be paid by the petitioner.
SO ORDERED.
Corona, C.J., Leonardo-de Castro, Del Castillo and Villarama, Jr., JJ., concur.
||| (National Power Corp. v. Heirs of Sangkay, G.R. No. 165828, [August 24, 2011], 671
PHIL 569-609)
5. REPUBLIC VS. SAMSON-TATAD 696 SCRA 809 (2013)
FIRST DIVISION
[G.R. No. 187677. April 17, 2013.]
REPUBLIC OF THE PHILIPPINES, represented by the DEPARTMENT OF PUBLIC
WORKS AND HIGHWAYS (DPWH), petitioner, vs. HON. ROSA SAMSON-TATAD, as
Presiding Judge of the Regional Trial Court, Branch 105, Quezon City, and SPOUSES
WILLIAM AND REBECCA GENATO, respondents.
DECISION
SERENO, C.J p:
This is an appeal via a Petition for Review on Certiorari 1 dated 19 June 2009 assailing
the Decision 2 and Resolution 3 of the Court of Appeals (CA) in C.A. G.R. SP No. 93227
which affirmed the Orders 4 of the Regional Trial Court (RTC), Branch 105, Quezon City
in Civil Case No. Q-01-44595. The RTC barred petitioner from presenting evidence to
prove its claim of ownership over the subject property, as the presentation thereof would
constitute a collateral attack on private respondents' title.
The antecedent facts are as follows:
On 13 July 2001, petitioner Republic of the Philippines, represented by the Department
of Public Works and Highways (DPWH), filed a Complaint against several defendants,
including private respondents, for the expropriation of several parcels of land affected by
the construction of the EDSA-Quezon Avenue Flyover. 5 Private respondents, Spouses
436
William and Rebecca Genato, are the registered owners of a piece of land ("subject
property") covered by Transfer Certificate of Title (TCT) No. RT-11603 (383648) 6 and
having an area of 460 square meters.
During the pendency of the proceedings, petitioner received a letter dated 14 June 2002
from Engr. Patrick B. Gatan, Project Manager IV of the DPWH-NCR, reporting that the
subject property was "government land and that the transfer certificate of title of the said
claimant [respondent] . . . is of dubious origin and of fabrication as it encroached or
overlapped on a government property." 7 As a result, petitioner filed an Amended
Complaint on 24 June 2002, 8 seeking to limit the coverage of the proceedings to an area
conforming to the findings of the DPWH:
4. To accomplish said project, which is to be undertaken by the Department of Public
Works and Highways [DPWH], it is necessary and urgent for plaintiff to acquire in fee
simple portions of the following parcels of land belonging to, occupied, possessed, and/or
the ownership of which are being claimed by the defendants, to wit:
xxx xxx xxx
[c] Defendants William O. Genato and Rebecca G. Genato.
xxx xxx xxx
5. The portion of the above properties that are affected by the project and shaded green
in the sketch plan hereto attached and made integral part hereof as Annex E, consisting
of an area of: . . . [c] 460 square meters of the aforedescribed property registered in the
name of defendants spouses William and Rebecca Genato; . . . . (Emphasis in the
original)
On 18 July 2002, petitioner filed a Manifestation and Motion 9 to have the subject property
"declared or considered of uncertain ownership or subject to conflicting claims."
In an Order dated 10 December 2002, 10 the RTC admitted petitioner's Amended
Complaint, deferred the release to respondents the amount of eighteen million four
hundred thousand pesos (P18,400,000) deposited in the bank, equivalent to the current
zonal valuation of the land, and declared the property as the subject of conflicting claims.
While petitioner was presenting evidence to show that the subject property actually
belonged to the Government, private respondents interposed objections saying that
petitioner was barred from presenting the evidence, as it constituted a collateral attack on
the validity of their TCT No. RT-11603 (383648). The RTC then required the parties to
submit their respective Memoranda.
Upon receipt of the Memoranda, the trial court issued on 12 July 2005 an Order 11 as
follows:
WHEREFORE, premises considered, the Court finds that the issue of the validity of the
TCT No. 11603 (383648) can only be raised in an action expressly instituted for that
purpose and not in this instant proceeding. Accordingly, plaintiff is barred from presenting
evidence as they [sic] constitute collateral attack on the validity of the title to the subject
lot in violation of Sec. 48 of P.D. 1529.
On 4 August 2005, petitioner seasonably filed a Motion for Reconsideration, 12 but the
motion was denied by the RTC in an Order dated 17 November 2005. 13
On 4 January 2006, private respondents filed a Motion for the payment of just
compensation amounting to twenty million seven hundred thousand pesos (P20,700,000)
437
and for the release of eighteen million four hundred thousand pesos (P18,400,000)
deposited in the Land Bank-South Harbor Branch as partial payment. 14 This Motion
remains pending in the RTC to date.
On 9 February 2006, petitioner filed with the CA a Petition for Certiorari with Prayer for
the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction. 15
The appellate court ruled that since the subject property was covered by a Torrens title,
Presidential Decree No. 1529, or the Property Registration Decree (P.D. 1529),
necessarily finds significance. Thus, it held that the RTC rightly applied Sec. 48.
Accordingly, the CA issued its 29 September 2008 Decision, 16 the dispositive portion of
which reads:
WHEREFORE, the Petition for Certiorari is DISMISSED. The prayer for the issuance of
a Writ of Preliminary Injunction is accordingly DENIED.
On 29 October 2008, petitioner filed a Motion for Reconsideration, 17 but the motion was
also denied in a Resolution dated 27 April 2009. 18
Hence, the instant Petition.
A Comment 19 on the Petition was filed by private respondents on 1 September 2009,
and a Reply 20 thereto by petitioner on 27 January 2010.
ISSUE
From the foregoing, the sole issue submitted for resolution before this Court is whether
petitioner may be barred from presenting evidence to assail the validity of respondents'
title under TCT No. RT-11603 (383648).
THE COURT'S RULING
Petitioner argues that under Section 9, Rule 67 of the Rules of Court, if the ownership of
a property to be expropriated is uncertain, the court in the same expropriation proceeding
is also given authority to make a proper adjudication of the matter. Section 9 of Rule 67
reads:
SECTION 9. Uncertain Ownership. Conflicting Claims. If the ownership of the property
taken is uncertain, or there are conflicting claims to any part thereof, the court may order
any sum or sums awarded as compensation for the property to be paid to the clerk of the
court for the benefit of the persons adjudged in the same proceeding to be entitled thereto.
But the judgment shall require the payment of the sum or sums awarded to either the
defendant or the clerk before the plaintiff can enter upon the property, or retain it for the
public use or purpose if entry has already been made.
This view is allegedly supported by Republic v. Court of First Instance of Pampanga,
presided formerly by Judge L. Pasicolan 21 (Republic) in which the trial court hearing the
expropriation proceeding was also allowed to resolve the issue of ownership.
Petitioner further argues that the original Complaint was amended "precisely to reflect the
fact that herein private respondents, albeit ostensibly appearing as registered owners,
are to be considered as mere claimants of one of the properties subject of the
expropriation." This is the reason why the RTC issued an Order declaring the property
subject of conflicting claims.
Moreover, this being an in rem proceeding, "plaintiff Republic of the Philippines seeks the
relief, both in the original and amended complaints, to transfer to plaintiff the titles to said
parcels of land together with their improvements free from all liens and encumbrances.
For this particular purpose, the expropriation suit is essentially a direct proceeding." 22
438
Private respondents, on the other hand, invoke Section 48 of P.D. 1529, viz.:
SECTION 48. Certificate Not Subject to Collateral Attack. A certificate of title shall not
be subject to collateral attack. It cannot be altered, modified, or cancelled except in a
direct proceeding in accordance with law.
It is their contention that by allowing petitioner to present adversarial evidence, the court
is in effect allowing respondents' Torrens title to be collaterally attacked an action
prohibited by P.D. 1529.
We rule that petitioner may be allowed to present evidence to assert its ownership over
the subject property, but for the sole purpose of determining who is entitled to just
compensation.
I
Proper interpretation of Section 9, Rule 67
Proceeding from the principle of jus regalia, the right to eminent domain has always been
considered as a fundamental state power that is inseparable from sovereignty. 23 It is
described as the State's inherent power that need not be granted even by the
Constitution, 24 and as the government's right to appropriate, in the nature of compulsory
sale to the State, private property for public use or purpose. 25
Expropriation, or the exercise of the State's right to eminent domain, is proscribed by the
restraints of public use and just compensation. 26 It is governed by Rule 67 of the Rules
of Court, which presents procedural guidelines for the court to ensure that due process is
observed and just compensation rightly paid to the private owners.
Indeed, this Court first had the occasion to interpret Section 9, Rule 67 in the case of
Republic. In addressing the issue of "whether or not the court that hears the expropriation
case has also jurisdiction to determine, in the same proceeding, the issue of ownership
of the land sought to be condemned," the Court answered in the affirmative:
The sole issue in this case, i.e., whether or not the court that hears the expropriation case
has also jurisdiction to determine, in the same proceeding, the issue of ownership of the
land sought to be condemned, must be resolved in the affirmative. That the court is
empowered to entertain the conflicting claims of ownership of the condemned or sought
to be condemned property and adjudge the rightful owner thereof, in the same
expropriation case, is evident from Section 9 of the Revised Rule 69, which provides:
SEC. 9. Uncertain ownership. Conflicting claims. If the ownership of the property taken
is uncertain, or there are conflicting claims to any part thereof, the court may order any
sum or sums awarded as compensation for the property to be paid to the clerk of court
for the benefit of the persons adjudged in the same proceeding to be entitled thereto. But
the judgment shall require the payment of the sum or sums awarded to either the
defendant or the clerk before the plaintiff can enter upon the property, or retain it for the
public use or purpose if entry has already been made.
In fact, the existence of doubt or obscurity in the title of the person or persons claiming
ownership of the properties to be expropriated would not preclude the commencement of
the action nor prevent the court from assuming jurisdiction thereof. The Rules merely
require, in such eventuality, that the entity exercising the right of eminent domain should
state in the complaint that the true ownership of the property cannot be ascertained or
specified with accuracy. 27
We arrived at the same conclusion in Republic v. Rural Bank of Kabacan, Inc., 28 in which
we held thus:
439
The trial court should have been guided by Rule 67, Section 9 of the 1997 Rules of Court,
which provides thus:
SEC. 9. Uncertain ownership; conflicting claims. If the ownership of the property taken
is uncertain, or there are conflicting claims to any part thereof, the court may order any
sum or sums awarded as compensation for the property to be paid to the court for the
benefit of the person adjudged in the same proceeding to be entitled thereto. But the
judgment shall require the payment of the sum or sums awarded to either the defendant
or the court before the plaintiff can enter upon the property, or retain it for the public use
or purpose if entry has already been made.
Hence, the appellate court erred in affirming the trial court's Order to award payment of
just compensation to the defendants-intervenors. There is doubt as to the real owner of
Lot No. 3080. Despite the fact that the lot was covered by TCT No. T-61963 and was
registered under its name, the Rural Bank of Kabacan manifested that the owner of the
lot was no longer the bank, but the defendants-intervenors; however, it presented no proof
as to the conveyance thereof. In this regard, we deem it proper to remand this case to the
trial court for the reception of evidence to establish the present owner of Lot No. 3080
who will be entitled to receive the payment of just compensation. (Emphases supplied)
However, the authority to resolve ownership should be taken in the proper context. The
discussion in Republic was anchored on the question of who among the respondents
claiming ownership of the property must be indemnified by the Government:
Now, to determine the person who is to be indemnified for the expropriation of Lot 6, Block
6, Psd-2017, the court taking cognizance of the expropriation must necessarily determine
if the sale to the Punzalan spouses by Antonio Feliciano is valid or not. For if valid, said
spouses must be the ones to be paid by the condemnor; but if invalid, the money will be
paid to someone else. . . . . 29
Thus, such findings of ownership in an expropriation proceeding should not be construed
as final and binding on the parties. By filing an action for expropriation, the condemnor
(petitioner), merely serves notice that it is taking title to and possession of the property,
and that the defendant is asserting title to or interest in the property, not to prove a right
to possession, but to prove a right to compensation for the taking. 30
If at all, this situation is akin to ejectment cases in which a court is temporarily authorized
to determine ownership, if only to determine who is entitled to possession. This is not
conclusive, and it remains open to challenge through proper actions. 31 The
consequences of Sec. 9, Rule 67 cannot be avoided, as they are due to the intimate
relationship of the issue of ownership with the claim for the expropriation payment. 32
II
Inapplicability of Section 48, P.D. 1529
Verily, our interpretation of Sec. 9, Rule 67 does not run counter to Section 48 of P.D.
1529. Under Sec. 48, collateral attacks on a Torrens title are prohibited. We have
explained the concept in Oo v. Lim, 33 to wit:
An action or proceeding is deemed an attack on a title when its objective is to nullify the
title, thereby challenging the judgment pursuant to which the title was decreed. The attack
is direct when the objective is to annul or set aside such judgment, or enjoin its
enforcement. On the other hand, the attack is indirect or collateral when, in an action to
obtain a different relief, an attack on the judgment is nevertheless made as an incident
thereof.
440
In several instances, we have considered an Answer praying for the cancellation of the
plaintiff's Torrens title as a form of a collateral attack. 34 We have afforded the similar
treatment in a petition questioning the validity of a deed of sale for a registered land, 35
and in a reformation of a deed of sale to include areas registered under the name of
another party. 36 But a resolution on the issue of ownership in a partition case was
deemed neither to be a direct or collateral attack, for "until and unless this issue of coownership is definitely and finally resolved, it would be premature to effect a partition of
the disputed properties." 37
Here, the attempt of petitioner to present evidence cannot be characterized as an "attack."
It must be emphasized that the objective of the case is to appropriate private property,
and the contest on private respondents' title arose only as an incident to the issue of
whom should be rightly compensated.
Contrary to petitioner's allegations, the Complaint and Amended Complaint cannot also
be considered as a direct attack. The amendment merely limited the coverage of the
expropriation proceedings to the uncontested portion of the subject property. The RTC's
Order declaring the property as subject of conflicting claims is a recognition that there are
varying claimants to the sums to be awarded as just compensation. This serves as an
authority for the court to conduct a limited inquiry on the property's ownership.
WHEREFORE, the Court GRANTS the Petition for Review on Certiorari and the prayer
for a Writ of Preliminary Injunction. The assailed Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 93227, as well as the Decision of the Regional Trial Court,
Branch 105, Quezon City in Civil Case No. Q-01-44595, are hereby REVERSED and SET
ASIDE. This case is REMANDED to the RTC to hear the issue of ownership for the
purpose of just compensation.
SO ORDERED.
Leonardo-de Castro, Bersamin, Villarama, Jr. and Reyes, JJ., concur.
||| (Republic v. Samson-Tatad, G.R. No. 187677, [April 17, 2013], 709 PHIL 771-783)
6. SY VS. LG OF QUEZON CITY 697 SCRA 621 (2013)
SECOND DIVISION
[G.R. No. 202690. June 5, 2013.]
HENRY L. SY, petitioner, vs. LOCAL GOVERNMENT OF QUEZON CITY, respondent.
DECISION
PERLAS-BERNABE, J p:
Assailed in this petition for review on certiorari 1 are the January 20, 2012 Decision 2 and
July 16, 2012 Resolution 3 of the Court of Appeals (CA) in CA-G.R. CV No. 91964 which
affirmed with modification the August 22, 2008 Order 4 of the Regional Trial Court of
Quezon City, Branch 80 (RTC) in Civil Case No. Q-96-29352, ordering respondent Local
Government of Quezon City (the City) to pay petitioner Henry L. Sy (Sy) just
compensation set at P5,500.00 per square meter (sq. m.), including P200,000.00 as
exemplary damages and attorney's fees equivalent to one percent (1%) of the total
amount due.
The Facts
441
On November 7, 1996, the City, through then Mayor Ismael Mathay, Jr., filed a complaint
for expropriation with the RTC in order to acquire a 1,000 sq. m. parcel of land, owned
and registered under the name of Sy (subject property), 5 which was intended to be used
as a site for a multi-purpose barangay hall, day-care center, playground and community
activity center for the benefit of the residents of Barangay Balingasa, Balintawak, Quezon
City. 6 The requisite ordinance to undertake the aforesaid expropriation namely,
Ordinance No. Sp-181, s-94, was enacted on April 12, 1994. 7
On March 18, 1997, pursuant to Section 19 8 of Republic Act No. 7160 (RA 7160),
otherwise known as the "Local Government Code of 1991," the City deposited the amount
of P241,090.00 with the Office of the Clerk of Court, representing 15% of the fair market
value of the subject property based on its tax declaration. 9 TcSHaD
During the preliminary conference on November 8, 2006, Sy did not question the City's
right to expropriate the subject property. Thus, only the amount of just compensation
remained at issue. 10
On July 6, 2006, the RTC appointed Edgardo Ostaco (Commissioner Ostaco), Engr.
Victor Salinas (Commissioner Salinas) and Atty. Carlo Alcantara (Commissioner
Alcantara) as commissioners to determine the proper amount of just compensation to be
paid by the City for the subject property. Subsequently, Commissioners Ostaco and
Alcantara, in a Report dated February 11, 2008, recommended the payment of P5,500.00
per sq. m., to be computed from the date of the filing of the expropriation complaint, or on
November 7, 1996. On the other hand, Commissioner Salinas filed a separate Report
dated March 7, 2008, recommending the higher amount of P13,500.00 per sq. m. as just
compensation. 11
The RTC Ruling
In the Order dated August 22, 2008, 12 the RTC, citing the principle that just
compensation must be fair not only to the owner but to the expropriator as well, adopted
the findings of Commissioners Ostaco and Alcantara and thus, held that the just
compensation for the subject property should be set at P5,500.00 per sq. m. 13 Further,
it found no basis for the award of damages and back rentals in favor of Sy. 14 Finally,
while legal interest was not claimed, for equity considerations, it awarded six percent (6%)
legal interest, computed from November 7, 1996 until full payment of just compensation.
15
Dissatisfied, Sy filed an appeal with the CA. 16
The CA Ruling
In the Decision dated January 20, 2012, 17 the CA affirmed the RTC's ruling but modified
the same, ordering the City to pay Sy the amount of P200,000.00 as exemplary damages
and attorney's fees equivalent to one percent (1%) of the total amount due. ADcSHC
It found the appraisal of Commissioners Ostaco and Alcantara for the subject property to
be more believable than the P13,000.00 per sq. m. valuation made by independent
appraisers Cuervo and Asian Appraisers in 1995 and 1996, respectively, considering that
it was arrived at after taking into account: (a) the fair market value of the subject property
in the amount of P4,000.00 per sq. m. based on the September 4, 1996 recommendation
of the City Appraisal Committee; 18 (b) the market value of the subject lot in the amount
of P2,000.00 per sq. m. based on several sworn statements made by Sy himself; 19 and
(c) Sy's own tax declaration for 1996, 20 stating that the subject property has a total
market value of P2,272,050.00. Accordingly, it held that the fair market value of P5,500.00
per sq. m., or P5,500,000.00 in total, for the 1,000 sq. m. subject property arrived at by
Commissioners Ostaco and Alcantara was more than fair and reasonable. 21
442
The CA also denied Sy's assertion that he should be entitled to damages on account of
the purported shelving of his housing project, finding no sufficient evidence to support the
same. Likewise, it observed that the expropriation would not leave the rest of Sy's
properties useless as they would still be accessible through a certain Lot 8 based on the
Property Identification Map. 22
Nonetheless, citing the case of Manila International Airport Authority v. Rodriguez (MIAA),
23 it awarded exemplary damages in the amount of P200,000.00 and attorney's fees
equivalent to one percent (1%) of the amount due because of the City's taking of the
subject property without even initiating expropriation proceedings. 24 It, however, denied
Sy's claim of back rentals considering that the RTC had already granted legal interest in
his favor. 25
Aggrieved, Sy moved for reconsideration which was denied in the Resolution dated July
16, 2012 26 for being filed out of time. 27 The City also filed a motion for reconsideration
which was equally denied for lack of merit. 28 cIADTC
Hence, this petition.
Issues Before the Court
The present controversy revolves around the issue of whether the CA correctly: (a)
dismissed Sy's motion for reconsideration for being filed out of time; (b) upheld the
amount of just compensation as determined by the RTC as well as its grant of six percent
(6%) legal interest; and (c) awarded exemplary damages and attorney's fees.
The Court's Ruling
The petition is partly meritorious.
A. Failure to seasonably move for
reconsideration; excusable
negligence; relaxation of procedural
rules
At the outset, the Court observes that Sy's motion for reconsideration was filed out of time
and thus, was properly dismissed by the CA. Records show that, as per the Postmaster's
Certification, the CA's January 20, 2012 Decision was received by Sy on January 26,
2012 and as such, any motion for reconsideration therefrom should have been filed not
later than fifteen (15) days from receipt, 29 or on February 10, 2012. 30 However, Sy filed
his motion for reconsideration (subject motion) a day late, or on February 13, 2012, 31
which thus, renders the CA decision final and executory. 32
In this regard, it is apt to mention that Sy's counsel, Atty. Tranquilino F. Meris (Atty. Meris),
claims that his secretary's inadvertent placing of the date January 27, 2012, instead of
January 26, 2012, on the Notice of Decision 33 constitutes excusable negligence which
should therefore, justify a relaxation of the rules. acAIES
The assertion is untenable.
A claim of excusable negligence does not loosely warrant a relaxation of the rules. Verily,
the party invoking such should be able to show that the procedural oversight or lapse is
attended by a genuine miscalculation or unforeseen fortuitousness which ordinary
prudence could not have guarded against so as to justify the relief sought. 34 The
standard of care required is that which an ordinarily prudent man bestows upon his
important business. 35 In this accord, the duty rests on every counsel to see to adopt and
strictly maintain a system that will efficiently take into account all court notices sent to him.
36
443
Applying these principles, the Court cannot excuse Atty. Meris' misstep based on his
proffered reasons. Evidently, the erroneous stamping of the Notice of Decision could have
been averted if only he had instituted a credible filing system in his office to account for
oversights such as that committed by his secretary. Indeed, ordinary prudence could have
prevented such mistake.
Be that as it may, procedural rules may, nonetheless, be relaxed for the most persuasive
of reasons in order to relieve a litigant of an injustice not commensurate with the degree
of his thoughtlessness in not complying with the procedure prescribed. 37 Corollarily, the
rule, which states that the mistakes of counsel bind the client, may not be strictly followed
where observance of it would result in the outright deprivation of the client's liberty or
property, or where the interest of justice so requires. 38
As applied in this case, the Court finds that the procedural consequence of the abovediscussed one-day delay in the filing of the subject motion which, as a matter of course,
should render the CA's January 20, 2012 Decision already final and executory and hence,
bar the instant petition is incommensurate to the injustice which Sy may suffer. This is
in line with the Court's observation that the amount of just compensation, the rate of legal
interest, as well as the time of its accrual, were incorrectly adjudged by both the RTC and
the CA, contrary to existing jurisprudence. In this respect, the Court deems it proper to
relax the rules of procedure and thus, proceed to resolve these substantive issues.
TcEaAS
B. Rate of legal interest and time
of accrual
Based on a judicious review of the records and application of jurisprudential rulings, the
Court holds that the correct rate of legal interest to be applied is twelve percent (12%)
and not six percent (6%) per annum, owing to the nature of the City's obligation as an
effective forbearance.
In the case of Republic v. CA, 39 the Court ruled that the debt incurred by the government
on account of the taking of the property subject of an expropriation constitutes an effective
forbearance which therefore, warrants the application of the 12% legal interest rate, viz.:
The constitutional limitation of "just compensation" is considered to be the sum equivalent
to the market value of the property, broadly described to be the price fixed by the seller
in open market in the usual and ordinary course of legal action and competition or the fair
value of the property as between one who receives, and one who desires to sell, it fixed
at the time of the actual taking by the government. Thus, if property is taken for public use
before compensation is deposited with the court having jurisdiction over the case, the
final compensation must include interests on its just value to be computed from the time
the property is taken to the time when compensation is actually paid or deposited with the
court. In fine, between the taking of the property and the actual payment, legal interests
accrue in order to place the owner in a position as good as (but not better than) the
position he was in before the taking occurred.
The Bulacan trial court, in its 1979 decision, was correct in imposing interests on the zonal
value of the property to be computed from the time petitioner instituted condemnation
proceedings and "took" the property in September 1969. This allowance of interest on the
amount found to be the value of the property as of the time of the taking computed, being
an effective forbearance, at 12% per annum should help eliminate the issue of the
constant fluctuation and inflation of the value of the currency over time. . . . (Emphasis
and underscoring supplied) CSEHIa
In similar regard, the Court, in Land Bank of the Philippines v. Rivera, 40 pronounced
that:
444
In many cases decided by this Court, 41 it has been repeated time and again that the
award of 12% interest is imposed in the nature of damages for delay in payment which in
effect makes the obligation on the part of the government one of forbearance. This is to
ensure prompt payment of the value of the land and limit the opportunity loss of the owner
that can drag from days to decades. (Emphasis and underscoring supplied)
As to the reckoning point on which the legal interest should accrue, the same should be
computed from the time of the taking of the subject property in 1986 and not from the
filing of the complaint for expropriation on November 7, 1996.
Records show that the City itself admitted in its Appellee's Brief filed before the CA that
as early as 1986, "a burden was already imposed upon the owner of the [subject] property
. . ., considering that the expropriated property was already being used as Barangay day
care and office." 42 Thus, the property was actually taken during that time and from
thereon, legal interest should have already accrued. In this light, the Court has held that:
43
. . . [T]he final compensation must include interests on its just value to be computed from
the time the property is taken to the time when compensation is actually paid or deposited
with the court[.] . . . (Emphasis supplied) CTSDAI
This is based on the principle that interest "runs as a matter of law and follows from the
right of the landowner to be placed in as good position as money can accomplish, as of
the date of the taking." 44
Notably, the lack of proper authorization, i.e., resolution to effect expropriation, 45 did not
affect the character of the City's taking of the subject property in 1986 as the CA, in its
January 20, 2012 Decision, suggests. Case law dictates that there is "taking" when the
owner is actually deprived or dispossessed of his property; when there is a practical
destruction or a material impairment of the value of his property or when he is deprived
of the ordinary use thereof. 46 Therefore, notwithstanding the lack of proper authorization,
the legal character of the City's action as one of "taking" did not change. In this relation,
the CA noted that the City enacted Ordinance No. Sp-181, s-94, only on April 12, 1994
and filed its expropriation complaint on November 7, 1996. However, as it previously
admitted, it already commenced with the taking of the subject property as early as 1986.
Accordingly, interest must run from such time.
This irregularity does not, however, proceed without any consequence. As correctly
observed by the CA, citing as basis the MIAA case, exemplary damages and attorney's
fees should be awarded to the landowner if the government takes possession of the
property for a prolonged period of time without properly initiating expropriation
proceedings. The MIAA ruling was applied in the more recent case of City of Iloilo v.
Judge Lolita Contreras-Besana, 47 wherein the Court said:
We stress, however, that the City of Iloilo should be held liable for damages for taking
private respondent's property without payment of just compensation. In Manila
International Airport Authority v. Rodriguez, the Court held that a government agency's
prolonged occupation of private property without the benefit of expropriation proceedings
undoubtedly entitled the landowner to damages: TCEaDI
Such pecuniary loss entitles him to adequate compensation in the form of actual or
compensatory damages, which in this case should be the legal interest (6%) on the value
of the land at the time of taking, from said point up to full payment by the MIAA. This is
based on the principle that interest "runs as a matter of law and follows from the right of
the landowner to be placed in as good position as money can accomplish, as of the date
of the taking . . . .
445
xxx xxx xxx

For more than twenty (20) years, the MIAA occupied the subject lot without the benefit of
expropriation proceedings and without the MIAA exerting efforts to ascertain ownership
of the lot and negotiating with any of the owners of the property. To our mind, these are
wanton and irresponsible acts which should be suppressed and corrected. Hence, the
award of exemplary damages and attorneys fees is in order. . . . . (Emphasis and
underscoring supplied; citations omitted) HEcTAI
All told, the Court finds the grant of exemplary damages in the amount of P200,000.00 as
well as attorney's fees equivalent to 1% of the total amount due amply justified, square
as it is with existing jurisprudence.
C. Amount of just compensation
Finally, the Court cannot sustain the amount of P5,500.00/sq. m. as just compensation
which was set by the RTC and upheld by the CA. The said valuation was actually arrived
at after considering: (a) the September 4, 1996 recommendation of the City Appraisal
Committee; (b) several sworn statements made by Sy himself; and (c) Sy's own tax
declaration for 1996. 48 It is well-settled that the amount of just compensation is to be
ascertained as of the time of the taking. 49 However, the above-stated documents do not
reflect the value of the subject property at the time of its taking in 1986 but rather, its
valuation in 1996. Consequently, the case must be remanded to the RTC in order to
properly determine the amount of just compensation during such time the subject property
was actually taken.
WHEREFORE, the petition is PARTLY GRANTED. The January 20, 2012 Decision and
July 16, 2012 Resolution of the Court of Appeals in CA-G.R. CV No. 91964 are hereby
SET ASIDE. Accordingly, the case is REMANDED to the trial court for the proper
determination of the amount of just compensation in accordance with this Decision. To
forestall any further delay in the resolution of this case, the trial court is hereby ordered
to fix the just compensation for petitioner Henry L. Sy's property with dispatch and report
to the Court its compliance. Finally, respondent Local Government of Quezon City is
ordered to PAY exemplary damages in the amount of P200,000.00 and attorney's fees
equivalent to one percent (1%) of the amount due, after final determination of the amount
of just compensation.
SO ORDERED.
Brion, * Del Castillo, Perez and Leonen, ** JJ., concur.
||| (Sy v. Local Government of Quezon City, G.R. No. 202690, [June 5, 2013], 710 PHIL
549-563)
7. SEC. OF DPWH VS. TECSON 700 SCRA 243 (2013)
THIRD DIVISION
[G.R. No. 179334. July 1, 2013.]
SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS and
DISTRICT ENGINEER CELESTINO R. CONTRERAS, petitioners, vs. SPOUSES
HERACLEO and RAMONA TECSON, respondents.
DECISION
PERALTA, J p:
446
This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the
Court of Appeals (CA) Decision 1 dated July 31, 2007 in CA-G.R. CV No. 77997. The
assailed decision affirmed with modification the Regional Trial Court (RTC) 2 Decision 3
dated March 22, 2002 in Civil Case No. 208-M-95.
The case stemmed from the following factual and procedural antecedents:
Respondent spouses Heracleo and Ramona Tecson (respondents) are co-owners of a
parcel of land with an area of 7,268 square meters located in San Pablo, Malolos, Bulacan
and covered by Transfer Certificate of Title (TCT) No. T-43006 4 of the Register of Deeds
of Bulacan. Said parcel of land was among the properties taken by the government
sometime in 1940 without the owners' consent and without the necessary expropriation
proceedings and used for the construction of the MacArthur Highway. 5
In a letter 6 dated December 15, 1994, respondents demanded the payment of the fair
market value of the subject parcel of land. Petitioner Celestino R. Contreras (petitioner
Contreras), then District Engineer of the First Bulacan Engineering District of petitioner
Department of Public Works and Highways (DPWH), offered to pay the subject land at
the rate of P0.70 per square meter per Resolution of the Provincial Appraisal Committee
(PAC) of Bulacan. 7 Unsatisfied with the offer, respondents demanded for the return of
their property or the payment of compensation at the current fair market value. 8 TcHCDI
As their demand remained unheeded, respondents filed a Complaint 9 for recovery of
possession with damages against petitioners, praying that they be restored to the
possession of the subject parcel of land and that they be paid attorney's fees. 10
Respondents claimed that the subject parcel of land was assessed at P2,543,800.00. 11
Instead of filing their Answer, petitioners moved for the dismissal of the complaint on the
following grounds: (1) that the suit is against the State which may not be sued without its
consent; (2) that the case has already prescribed; (3) that respondents have no cause of
action for failure to exhaust administrative remedies; and (4) if respondents are entitled
to compensation, they should be paid only the value of the property in 1940 or 1941. 12
On June 28, 1995, the RTC issued an Order 13 granting respondents' motion to dismiss
based on the doctrine of state immunity from suit. As respondents' claim includes the
recovery of damages, there is no doubt that the suit is against the State for which prior
waiver of immunity is required. When elevated to the CA, 14 the appellate court did not
agree with the RTC and found instead that the doctrine of state immunity from suit is not
applicable, because the recovery of compensation is the only relief available to the
landowner. To deny such relief would undeniably cause injustice to the landowner.
Besides, petitioner Contreras, in fact, had earlier offered the payment of compensation
although at a lower rate. Thus, the CA reversed and set aside the dismissal of the
complaint and, consequently, remanded the case to the trial court for the purpose of
determining the just compensation to which respondents are entitled to recover from the
government. 15 With the finality of the aforesaid decision, trial proceeded in the RTC.
EHSTDA
The Branch Clerk of Court was initially appointed as the Commissioner and designated
as the Chairman of the Committee that would determine just compensation, 16 but the
case was later referred to the PAC for the submission of a recommendation report on the
value of the subject property. 17 In PAC Resolution No. 99-007, 18 the PAC
recommended the amount of P1,500.00 per square meter as the just compensation for
the subject property.
On March 22, 2002, the RTC rendered a Decision, 19 the dispositive portion of which
reads:
447
WHEREFORE, premises considered, the Department of Public Works and Highways or

its duly assigned agencies are hereby directed to pay said Complainants/Appellants the
amount of One Thousand Five Hundred Pesos (P1,500.00) per square meter for the lot
subject matter of this case in accordance with the Resolution of the Provincial Appraisal
Committee dated December 19, 2001.
SO ORDERED. 20
On appeal, the CA affirmed the above decision with the modification that the just
compensation stated above should earn interest of six percent (6%) per annum computed
from the filing of the action on March 17, 1995 until full payment. 21
In its appeal before the CA, petitioners raised the issues of prescription and laches, which
the CA brushed aside on two grounds: first, that the issue had already been raised by
petitioners when the case was elevated before the CA in CA-G.R. CV No. 51454.
Although it was not squarely ruled upon by the appellate court as it did not find any reason
to delve further on such issues, petitioners did not assail said decision barring them now
from raising exactly the same issues; and second, the issues proper for resolution had
been laid down in the pre-trial order which did not include the issues of prescription and
laches. Thus, the same can no longer be further considered. As to the propriety of the
property's valuation as determined by the PAC and adopted by the RTC, while
recognizing the rule that the just compensation should be the reasonable value at the
time of taking which is 1940, the CA found it necessary to deviate from the general rule.
It opined that it would be obviously unjust and inequitable if respondents would be
compensated based on the value of the property in 1940 which is P0.70 per sq m, but the
compensation would be paid only today. Thus, the appellate court found it just to award
compensation based on the value of the property at the time of payment. It, therefore,
adopted the RTC's determination of just compensation of P1,500.00 per sq m as
recommended by the PAC. The CA further ordered the payment of interest at the rate of
six percent (6%) per annum reckoned from the time of taking, which is the filing of the
complaint on March 17, 1995. IAaCST
Aggrieved, petitioners come before the Court assailing the CA decision based on the
following grounds:
I.
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING JUST COMPENSATION
TO RESPONDENTS CONSIDERING THE HIGHLY DUBIOUS AND QUESTIONABLE
CIRCUMSTANCES OF THEIR ALLEGED OWNERSHIP OF THE SUBJECT
PROPERTY.
II.
THE COURT OF APPEALS GRAVELY ERRED IN AWARDING JUST COMPENSATION
TO RESPONDENTS BECAUSE THEIR COMPLAINT FOR RECOVERY OF
POSSESSION AND DAMAGES IS ALREADY BARRED BY PRESCRIPTION AND
LACHES.
III.
THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE TRIAL COURT'S
DECISION ORDERING THE PAYMENT OF JUST COMPENSATION BASED ON THE
CURRENT MARKET VALUE OF THE ALLEGED PROPERTY OF RESPONDENTS. 22
Petitioners insist that the action is barred by prescription having been filed fifty-four (54)
years after the accrual of the action in 1940. They explain that the court can motu proprio
448
dismiss the complaint if it shows on its face that the action had already prescribed.
Petitioners likewise aver that respondents slept on their rights for more than fifty years;
hence, they are guilty of laches. Lastly, petitioners claim that the just compensation
should be based on the value of the property at the time of taking in 1940 and not at the
time of payment. 23
The petition is partly meritorious. ATHCDa
The instant case stemmed from an action for recovery of possession with damages filed
by respondents against petitioners. It, however, revolves around the taking of the subject
lot by petitioners for the construction of the MacArthur Highway. There is taking when the
expropriator enters private property not only for a momentary period but for a permanent
duration, or for the purpose of devoting the property to public use in such a manner as to
oust the owner and deprive him of all beneficial enjoyment thereof. 24
It is undisputed that the subject property was taken by petitioners without the benefit of
expropriation proceedings for the construction of the MacArthur Highway. After the lapse
of more than fifty years, the property owners sought recovery of the possession of their
property. Is the action barred by prescription or laches? If not, are the property owners
entitled to recover possession or just compensation?
As aptly noted by the CA, the issues of prescription and laches are not proper issues for
resolution as they were not included in the pre-trial order. We quote with approval the
CA's ratiocination in this wise:
Procedurally, too, prescription and laches are no longer proper issues in this appeal. In
the pre-trial order issued on May 17, 2001, the RTC summarized the issues raised by the
defendants, to wit: (a) whether or not the plaintiffs were entitled to just compensation; (b)
whether or not the valuation would be based on the corresponding value at the time of
the taking or at the time of the filing of the action; and (c) whether or not the plaintiffs were
entitled to damages. Nowhere did the pre-trial order indicate that prescription and laches
were to be considered in the adjudication of the RTC. 25
To be sure, the pre-trial order explicitly defines and limits the issues to be tried and
controls the subsequent course of the action unless modified before trial to prevent
manifest injustice. 26 ICAcTa
Even if we squarely deal with the issues of laches and prescription, the same must still
fail. Laches is principally a doctrine of equity which is applied to avoid recognizing a right
when to do so would result in a clearly inequitable situation or in an injustice. 27 This
doctrine finds no application in this case, since there is nothing inequitable in giving due
course to respondents' claim. Both equity and the law direct that a property owner should
be compensated if his property is taken for public use. 28 Neither shall prescription bar
respondents' claim following the long-standing rule "that where private property is taken
by the Government for public use without first acquiring title thereto either through
expropriation or negotiated sale, the owner's action to recover the land or the value
thereof does not prescribe." 29
When a property is taken by the government for public use, jurisprudence clearly provides
for the remedies available to a landowner. The owner may recover his property if its return
is feasible or, if it is not, the aggrieved owner may demand payment of just compensation
for the land taken. 30 For failure of respondents to question the lack of expropriation
proceedings for a long period of time, they are deemed to have waived and are estopped
from assailing the power of the government to expropriate or the public use for which the
power was exercised. What is left to respondents is the right of compensation. 31 The
trial and appellate courts found that respondents are entitled to compensation. The only
issue left for determination is the propriety of the amount awarded to respondents.
449
Just compensation is "the fair value of the property as between one who receives, and
one who desires to sell, . . . fixed at the time of the actual taking by the government." This
rule holds true when the property is taken before the filing of an expropriation suit, and
even if it is the property owner who brings the action for compensation. 32
The issue in this case is not novel. TaCDcE
In Forfom Development Corporation [Forfom] v. Philippine National Railways [PNR], 33
PNR entered the property of Forfom in January 1973 for public use, that is, for railroad
tracks, facilities and appurtenances for use of the Carmona Commuter Service without
initiating expropriation proceedings. 34 In 1990, Forfom filed a complaint for recovery of
possession of real property and/or damages against PNR. In Eusebio v. Luis, 35
respondent's parcel of land was taken in 1980 by the City of Pasig and used as a
municipal road now known as A. Sandoval Avenue in Pasig City without the appropriate
expropriation proceedings. In 1994, respondent demanded payment of the value of the
property, but they could not agree on its valuation prompting respondent to file a complaint
for reconveyance and/or damages against the city government and the mayor. In Manila
International Airport Authority v. Rodriguez, 36 in the early 1970s, petitioner implemented
expansion programs for its runway necessitating the acquisition and occupation of some
of the properties surrounding its premises. As to respondent's property, no expropriation
proceedings were initiated. In 1997, respondent demanded the payment of the value of
the property, but the demand remained unheeded prompting him to institute a case for
accion reivindicatoria with damages against petitioner. In Republic v. Sarabia, 37
sometime in 1956, the Air Transportation Office (ATO) took possession and control of a
portion of a lot situated in Aklan, registered in the name of respondent, without initiating
expropriation proceedings. Several structures were erected thereon including the control
tower, the Kalibo crash fire rescue station, the Kalibo airport terminal and the
headquarters of the PNP Aviation Security Group. In 1995, several stores and restaurants
were constructed on the remaining portion of the lot. In 1997, respondent filed a complaint
for recovery of possession with damages against the storeowners where ATO intervened
claiming that the storeowners were its lessees.
The Court in the above-mentioned cases was confronted with common factual
circumstances where the government took control and possession of the subject
properties for public use without initiating expropriation proceedings and without payment
of just compensation, while the landowners failed for a long period of time to question
such government act and later instituted actions for recovery of possession with
damages. The Court thus determined the landowners' right to the payment of just
compensation and, more importantly, the amount of just compensation. The Court has
uniformly ruled that just compensation is the value of the property at the time of taking
that is controlling for purposes of compensation. In Forfom, the payment of just
compensation was reckoned from the time of taking in 1973; in Eusebio, the Court fixed
the just compensation by determining the value of the property at the time of taking in
1980; in MIAA, the value of the lot at the time of taking in 1972 served as basis for the
award of compensation to the owner; and in Republic, the Court was convinced that the
taking occurred in 1956 and was thus the basis in fixing just compensation. As in said
cases, just compensation due respondents in this case should, therefore, be fixed not as
of the time of payment but at the time of taking, that is, in 1940.
The reason for the rule has been clearly explained in Republic v. Lara, et al., 38 and
repeatedly held by the Court in recent cases, thus:
. . . "[T]he value of the property should be fixed as of the date when it was taken and not
the date of the filing of the proceedings." For where property is taken ahead of the filing
of the condemnation proceedings, the value thereof may be enhanced by the public
purpose for which it is taken; the entry by the plaintiff upon the property may have
depreciated its value thereby; or, there may have been a natural increase in the value of
450
the property from the time it is taken to the time the complaint is filed, due to general
economic conditions. The owner of private property should be compensated only for what
he actually loses; it is not intended that his compensation shall extend beyond his loss or
injury. And what he loses is only the actual value of his property at the time it is taken . .
. . 39
Both the RTC and the CA recognized that the fair market value of the subject property in
1940 was P0.70/sq m. 40 Hence, it should, therefore, be used in determining the amount
due respondents instead of the higher value which is P1,500.00. While disparity in the
above amounts is obvious and may appear inequitable to respondents as they would be
receiving such outdated valuation after a very long period, it is equally true that they too
are remiss in guarding against the cruel effects of belated claim. The concept of just
compensation does not imply fairness to the property owner alone. Compensation must
be just not only to the property owner, but also to the public which ultimately bears the
cost of expropriation. 41 SHDAEC
Clearly, petitioners had been occupying the subject property for more than fifty years
without the benefit of expropriation proceedings. In taking respondents' property without
the benefit of expropriation proceedings and without payment of just compensation,
petitioners clearly acted in utter disregard of respondents' proprietary rights which cannot
be countenanced by the Court. 42 For said illegal taking, respondents are entitled to
adequate compensation in the form of actual or compensatory damages which in this
case should be the legal interest of six percent (6%) per annum on the value of the land
at the time of taking in 1940 until full payment. 43 This is based on the principle that
interest runs as a matter of law and follows from the right of the landowner to be placed
in as good position as money can accomplish, as of the date of taking. 44
WHEREFORE, premises considered, the petition is PARTIALLY GRANTED. The Court
of Appeals Decision dated July 31, 2007 in CA-G.R. CV No. 77997 is MODIFIED, in that
the valuation of the subject property owned by respondents shall be P0.70 instead of
P1,500.00 per square meter, with interest at six percent (6%) per annum from the date of
taking in 1940 instead of March 17, 1995, until full payment.
SO ORDERED.
Abad and Mendoza, JJ., concur.
Velasco, Jr., J., with separate dissenting and concurring opinion.
Leonen, J., see separate opinion.
||| (Secretary of the Department of Public Works and Highways v. Spouses Tecson, G.R.
No. 179334, [July 1, 2013])
8. NPC VS. CRUZ 702 SCRA 359 (2013)
SECOND DIVISION
[G.R. No. 165386. July 29, 2013.]
NATIONAL POWER CORPORATION, petitioner, vs. SPOUSES SALVADOR and
NENITA CRUZ, SPOUSES EDMUNDO and MERLA BARZAGA, SPOUSES CRISANTO
and JULIETA DELA CRUZ, SPOUSES LORENZO and ROSALINA PALAGANAS,
SPOUSES RICARDO and LOLITA SAGUID, SPOUSES CARMELITA and RESTITUTO
ALCID, HIPOLITA NASALGA, CRISELDA and REDENTOR REYES, ILUMINADA
ALIPIO, REYNALDO ALIPIO, CORAZON PELAYO, SPOUSES ROLANDO and
FELICIDAD BOANGUIS, SPOUSES JOSELITO and CAROLINE MENDOZA, SPOUSES
451
ERLINDA and CELSO DE GUZMAN, SPOUSES MIGUEL and VIRGINIA CASAS,

SPOUSES ERLINDA and CELSO DICCION, MA. RENITA MARIANO, VICTORIA
ESPIRITU, SPOUSES VICTOR and ROSARION SOTELO, RENATO GUIEB, DANIEL
STA. MARIA, SPOUSES MELANIO and SOTERIA TORRES, SPOUSES CIRIACO and
PERLITA BENDIJO, SPOUSES LILIA and DOMINGO TORRES, PACITA TORRES and
GREGORIA CASTILLO, SPOUSES HILARIO and AMANDA DONIZA, SPOUSES
JEREMIAS and ISABEL GARCIA, SPOUSES EDUARDO and MA. MARIN CALDERON,
SPOUSES ERNESTO and PELAGIA LUCAS, CORAZON ACOSTA, TERESITA
LACSON and JULIANA DE GUZMAN, PERLA REYES, SPOUSES ESMELITON and
REMEDIOS ESPIRITU, SPOUSES ROGELIO and AURORA ABALON, DITAS GARCIA,
TERESITA CAPATI, SPOUSES EFREN and MERCEDES MARTIN, SPOUSES
HIPOLITO and ANTONIA STA. MARIA, DIONISIO and ATANACIA DOMONDON,
JAOQUIN and MA. THERESA DELA ROSA, SPOUSES ROMULO and NORMA
DUCUSIN, GENOVEVA CRUZ and A. BAUTISTA, PURITA SUNICO, SPOUSES
MINERVA and ROQUE NUALLA, and SPOUSES GABINO, JR. and CRISPINA ALIPIO,
respondents.
DECISION
BRION, J p:
For the Court's resolution is the petition for review on certiorari 1 filed under Rule 45 of
the Rules of Court by the National Power Corporation (Napocor). Napocor seeks to annul
and set aside the decision 2 dated February 10, 2004 and the resolution 3 dated
September 13, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 62911, which
affirmed with modification the order dated March 31, 1998 of the Regional Trial Court
(RTC) of Malolos, Bulacan, Branch 15, in Civil Case No. 111-M-97.
THE FACTS
Civil Case No. 111-M-97 was an expropriation proceeding commenced by Napocor
against respondents Spouses Salvador and Nenita Cruz, Spouses Edmundo and Merla
Barzaga, Spouses Crisanto and Julieta dela Cruz, Spouses Lorenzo and Rosalina
Palaganas, Spouses Ricardo and Lolita Saguid, Spouses Carmelita and Restituto Alcid,
Hipolita Nasalga, Criselda and Redentor Reyes, Iluminada Alipio, Reynaldo Alipio,
Corazon Pelayo, Spouses Rolando and Felicidad Boanguis, Spouses Joselito and
Caroline Mendoza, Spouses Erlinda and Celso de Guzman, Spouses Miguel and Virginia
Casas, Spouses Erlinda and Celso Diccion, Ma. Renita Mariano, Victoria Espiritu,
Spouses Victor and Rosarion Sotelo, Renato Guieb, Daniel Sta. Maria, Spouses Melanin
and Soteria Torres, Spouses Ciriaco and Perlita Bendijo, Spouses Lilia and Domingo
Torres, Pacita Torres and Gregoria Castillo, Spouses Hilario and Amanda Doniza,
Spouses Jeremias and Isabel Garcia, Spouses Eduardo and Ma. Marin Calderon,
Spouses Ernesto and Pelagia Lucas, Corazon Acosta, Teresita Lacson and Juliana de
Guzman, Perla Reyes, Spouses Esmeliton and Remedios Espiritu, Spouses Rogelio and
Aurora Abalon, Ditas Garcia, Teresita Capati, Spouses Efren and Mercedes Martin,
Spouses Hipolito and Antonia Sta. Maria, Dionisio and Atanacia Domondon, Jaoquin and
Ma. Theresa dela Rosa, Spouses Romulo and Norma Ducusin, Genoveva Cruz and A.
Bautista, Purita Sunico, Spouses Minerva and Roque Nualla, and Spouses Gabino, Jr.
and Crisping Alipio, who are the owners of individual lots located in Del Monte Park
Subdivision, Dulong Bayan, San Jose Del Monte, Bulacan. The complaint, filed on
February 17, 1997, primarily sought the determination of just compensation due the
respondents after the negotiations for the purchase of the lots failed. AHDaET
In its order dated September 17, 1997, the RTC directed the Bulacan Provincial Appraisal
Committee (PAC) "to review and submit an updated appraisal report on the properties to
be acquired by [Napocor] in order 'to judicially guide the Court in fixing the amount to be
paid by the plaintiff to the defendants.'" 4 In the meantime, the RTC allowed Napocor to
452
take possession of the lots, after Napocor deposited an amount equivalent to their
assessed value pursuant to Section 2, Rule 67 of the Rules of Court. 5
On October 22, 1997, the PAC submitted its report 6 to the RTC which pegged the just
compensation at P2,200.00 per square meter. After considering the PAC's report, the
RTC issued an order dated March 31, 1998 fixing the just compensation at P3,000.00 per
square meter. Although the RTC found the PAC's recommended amount of P2,200.00
reasonable, it noted that an additional amount of P800.00 was necessary in view of the
then prevailing economic crises and the devaluation of the peso.
Napocor appealed the RTC's March 31, 1998 order with the CA. It assailed the
appointment of the PAC, claiming that its appointment was contrary to Rule 67 of the
Rules of Court. It also alleged that the determination of the amount of just compensation
was without basis.
THE CA RULING
The CA affirmed the RTC's March 31, 1998 order, subject to a modification. It upheld the
appointment of the PAC and the recommendation to set the just compensation at
P2,200.00 per square meter, but removed the additional P800.00 that the RTC imposed.
The CA instead imposed legal interest at 12% per annum on the amount of just
compensation, to compensate for the constant fluctuation and inflation of the value of the
currency.
Its motion for reconsideration of the CA decision having been denied, 7 Napocor elevates
the case to us through the present petition. DCaEAS
THE PARTIES' ARGUMENTS
Napocor asserts that the appointment of the PAC as commissioners was contrary to Rule
67 of the Rules of Court,specifically, Section 5 thereof which states:
Section 5. Ascertainment of compensation. Upon the rendition of the order of
expropriation, the court shall appoint not more than three (3) competent and disinterested
persons as commissioners to ascertain and report to the court the just compensation for
the property sought to be taken. The order of appointment shall designate the time and
place of the first session of the hearing to be held by the commissioners and specify the
time within which their report shall be submitted to the court.
Copies of the order shall be served on the parties. Objections to the appointment of any
of the commissioners shall be filed with the court within ten (10) days from service, and
shall be resolved within thirty (30) days after all the commissioners shall have received
copies of the objections. [italics supplied; emphases ours]
It contends that Rule 67 requires the trial court to appoint three persons, and not a
committee like the PAC. The members of the PAC also did not subscribe to an oath which
is required under Section 6, Rule 67 of the Rules of Court. 8
Napocor also points out that the RTC's March 31, 1998 order did not specify the time and
place for the first hearing of the commissioners and the time the commissioners' report
should be submitted. No notice of hearing on the commissioners' report was, in fact, given
to Napocor, depriving it of its right to present evidence to controvert the findings of the
PAC. STaHIC
Napocor further alleges that the CA erred in disregarding the compromise agreement it
entered into with the respondents. The agreement was executed during the pendency of
the appeal with the CA and fixed the amount of just compensation at P1,900.00 per
square meter. As the agreement was validly entered into by the parties, Napocor claims
it is binding on the parties and could not be disregarded by the CA.
453
The respondents, on the other hand, assert that Napocor's allegations are unmeritorious.
They claim that the appointment of the PAC constituted substantial compliance with
Section 5, Rule 67 of the Rules of Court,since the PAC was composed of three members
(the provincial assessor, the provincial engineer, and the provincial treasurer) who are
government officials without interest in the outcome of the litigation, and who are
competent to evaluate and assess valuation of the properties. They have been specifically
tasked "to guide the Court in fixing the amount to be paid by the plaintiff to the
defendants," 9 which is the same task required of the commissioners by Rule 67 of the
Rules of Court.
They further claim that it was Napocor's inaction itself that denied it the opportunity to
present evidence due to its own failure to question the appointment of the commissioners
and the commissioners' report within the period provided under the Rules. Likewise, it
was Napocor which should be faulted for the CA's refusal to take cognizance of the
compromise agreement. Although Napocor manifested that an agreement was entered
into by the parties, it consistently failed to submit a copy to the CA for the latter's approval.
For over a year, the CA granted Napocor's numerous motions for extension to submit a
copy, but Napocor failed to comply. Consequently, the CA should not be faulted for
refusing to consider and approve the agreement. At any rate, the respondents claim that
the agreement does not bind them, as they were made to sign it without the benefit of
counsel during the pendency of the case. HADTEC
Finally, the respondents allege that the amount of P2,200.00 as just compensation is fully
supported not only by the findings in the report, but also by the Appraisal Report, which
Napocor obtained from the Land Bank of the Philippines (LBP). The LBP Appraisal Report
fixed the market value of the expropriated properties at P2,200.00. 10
Incidental Matters
The majority of the respondents who filed the Comment dated February 16, 2005 are
represented by Atty. Reynaldo B. Hernandez. 11 During the pendency of the case, Atty.
Hernandez submitted before the Court an Omnibus Motion 12 (1) seeking clarification on
the participation of one Atty. Pedro S. Principe of Principe, Villano, Villacorta, Clemente
and Associates in the present proceeding, and (2) praying for an order from the Court
enjoining the RTC from hearing and resolving Atty. Principe's Motion to Enter Attorney's
Charging Lien into the Records of This Case Even Before Final Judgment is Rendered.
According to Atty. Hernandez, Atty. Principe claims to be the counsel of the same
respondents that he (Atty. Hernandez) is representing. However, the respondents
themselves have repudiated Atty. Principe's claim. Atty. Hernandez also states that, as
borne by the records, the RTC has already denied Atty. Principe's appearance and motion
to intervene in the expropriation proceedings. Atty. Principe wanted to intervene,
supposedly to protect his 40% share in the expropriated properties, which he (Atty.
Principe) claimed constituted part of his legal fees. CHTAIc
In response to Atty. Hernandez's allegations, Atty. Principe denies that he is a "nuisance
interloper." Atty. Principe claims that he is the counsel for SANDAMA, 13 an organization
formed by owners of the affected expropriated properties, of which the respondents are
members. It was SANDAMA, through its President, Danilo Elfa, which engaged his and
his firm's legal services; to date, his authority has not been withdrawn or revoked. Hence,
Atty. Principe should be recognized as the counsel of record for the respondents. As
counsel for the respondents, Atty. Principe claims that there is nothing improper with his
motion to enter into the records his charging lien, adding that the lien will not anyway be
enforced until final judgment in this case.
Also, during the pendency of this case, Napocor filed a Motion to Approve Attached
Compromise Agreement, 14 which it entered into with respondent Ditas C. Garcia on July
3, 2006. In light of the compromise agreement, the Court issued a Resolution 15 dated
454
March 28, 2011 and considered the case closed and terminated insofar as respondent
Ditas was concerned.
THE COURT'S RULING
The Court denies the petition.
The appointment of the PAC as
commissioners
The settled rule in expropriation proceedings is that the determination of just
compensation is a judicial function. 16 To assist the courts in this task, Section 5, Rule
67 of the Rules of Court requires the appointment of "not more than three (3) competent
and disinterested persons as commissioners to ascertain and report to the court the just
compensation for the property sought to be taken." Although the appointment of
commissioners is mandatory, the Rules do not impose any qualifications or restrictions
on the appointment, other than that the commissioners should not number more than
three and that they should be competent and disinterested parties. IcAaSD
In this case, the Court finds that the appointment of the PAC as commissioners
substantially complies with Section 5, Rule 67 of the Rules of Court. It is immaterial that
the RTC appointed a committee instead of three persons to act as commissioners, since
the PAC is composed of three members the Provincial Assessor, the Provincial
Engineer, and the Provincial Treasurer. Considering their positions, we find each member
of the PAC competent to perform the duty required of them, i.e., to appraise the valuation
of the affected lots. As correctly found by the CA, they "are government officials entrusted
with the updating and time-to-time determination of currently assessed, as well as, market
value of properties within their jurisdiction[.]" 17 The mere fact that they are government
officials does not disqualify them as disinterested persons, as the provincial government
has no significant interest in the case.
Instead, what we find material is that the PAC was tasked to perform precisely the same
duty that the commissioners, under Section 5, Rule 67 of the Rules of Court,are required
to discharge. The RTC order dated September 17, 1997 directed the PAC "to review and
submit an updated appraisal report on the property to be acquired by the plaintiff
NAPOCOR from the defendants to judicially guide the [c]ourt in fixing the amount to be
paid [by] the plaintiff to the defendants." 18 The appointment of the PAC served the same
function as an appointment of three persons as commissioners under the Rules. HTSIEa
If Napocor found the appointment of the PAC to be objectionable, it should have filed its
objections early on and not belatedly raise them in its appeal with the CA. The second
paragraph of Section 5, Rule 67 states that
Copies of the order [of appointment] shall be served on the parties. Objections to the
appointment of any of the commissioners shall be filed with the court within ten (10) days
from service, and shall be resolved within thirty (30) days after all the commissioners shall
have received copies of the objections. [emphasis ours]
We find nothing in the records indicating that Napocor seasonably objected to the
appointment of the PAC or to any aspect in the order of appointment (e.g., the supposed
failure of the order to state the time and place of the first session of the hearing, and the
time which the commissioners' report shall be submitted). Instead, Napocor belatedly
raised its objections only in its appeal with the CA. For its failure to comply with the Rules,
we consider Napocor to have waived its objections against any supposed irregularity in
the appointment of the PAC. HSTaEC
The determination of just
compensation
Neither do we find significant Napocor's claim that it was denied due process in the
determination of the amount of just compensation. As against Napocor's bare allegation
455
that it was not notified of the PAC's hearing, the obtaining circumstances, set out below,
lead us to believe otherwise.
The PAC members, upon their appointment and oath, are considered officers of the court,
and we can extend to them the presumption of regularity in the performance of their official
functions. 19 It is hard to believe that Napocor was completely left in the dark in the
proceedings conducted by the PAC to determine just compensation, considering its
interest in the case. acIASE
Likewise, we find untenable Napocor's claim that the amount of just compensation was
without factual and legal basis. That the properties were valued at P427.76 per square
meter in August 1996, then at P2,200.00 in October 1997 does not necessarily indicate
that the assessment by the PAC was manipulated. Napocor itself acknowledge an
increase in the value of the properties when it modified its offered settlement from
P427.76 to P1,900.00. Also, the LBP Appraisal Report, which Napocor itself
commissioned, has pegged the fair market value of the properties at P2,200.00 per
square meter. The report considered important improvements in the vicinity, among them,
the construction of a school, a church and several public buildings.
If Napocor had any objections on the amount of just compensation fixed in the
commissioners' report, its remedy was to file its objections within ten (10) days from
receipt of the notice of the report. Section 7, Rule 67 of the Rules of Court states:
Section 7. Report by commissioners and judgment thereupon. . . . Except as otherwise
expressly ordered by the court, such report shall be filed within sixty (60) days from the
date the commissioners were notified of their appointment, which time may be extended
in the discretion of the court. Upon the filing of such report, the clerk of the court shall
serve copies thereof on all interested parties, with notice that they are allowed ten (10)
days within which to file objections to the findings of the report, if they so desire. [italics
supplied; emphasis ours]
However, as with the objections to the appointment of the PAC, Napocor failed to make
a timely objection to the report of the commissioners and raised them only before the CA.
HASDcC
The compromise agreement
It appears to us that Napocor has demonstrated a pattern of procrastination in this case.
We note that not only did it belatedly file its objections to the appointment of the PAC and
to the commissioners' report; it also failed to submit copies of the compromise agreement
with the CA despite the numerous extensions it requested.
As early as August 2001, during the pendency of its appeal with the CA, Napocor already
manifested that it had entered into a compromise agreement with the respondents and
would be filing a copy thereof with the CA.
The CA initially gave Napocor 60 days to submit a copy of the agreement, but Napocor
requested for (and was granted) an extension of 30 days. Days before the extension
expired, Napocor requested for another 30-day extension. Napocor would repeat these
requests for extension whenever the deadline loomed, without it filing a copy of the
agreement. All in all, Napocor requested for an extension of 180 days. The long delay
compelled the CA to finally resolve the appeal on the basis of the available records,
notwithstanding Napocor's manifestation of a compromise agreement. IAETDc
Significantly, the execution of the compromise agreement, by itself, did not enjoin the CA
from resolving the appeal. By its terms and as found out by the CA, the compromise
agreement required the approval of the CA for it to take effect. Thus, Napocor can no
longer assail the CA's authority to resolve the appeal after it consistently failed to furnish
the CA a copy of the agreement.
456
The representation of Atty. Principe

We take note of the respondents' misgivings on the claims of Atty. Principe. However, we
point out that the Court has resolved the issue of Atty. Principe's interest in the
expropriation proceedings in Malonso v. Principe. 20 Julian Malonso is the owner of one
of the expropriated properties and a member of SANDAMA. 21 He assailed the authority
of Atty. Principe to represent him in the same expropriation proceedings that is the subject
of the present case and the latter's claim of 40% of the amount to be paid by Napocor.
On the basis of these contentions, he sought Atty. Principe's disbarment. ADcSHC
Ruling in favor of Atty. Principe, we found reasonable grounds supporting his claim that
he possessed authority to represent SANDAMA and its members in the expropriation
proceedings 22 and could not validly be accused of misrepresentation. Since Atty.
Principe and his law firm have already rendered legal and even extra-legal services for
SANDAMA, they rightfully moved to recover the attorney's fees due them and to protect
this interest. However, the Court refrained from ruling on Atty. Principe's entitlement to
the claimed attorney's fees of 40% of the purchase price since Malonso only involved a
disbarment proceeding.
Although the Court's ruling in Malonso has become final, we cannot fully adopt it in the
present case so as to make a conclusive finding on the question of Atty. Principe's
representation and entitlement to attorney's fees as far as the present respondents are
concerned. The available documents in the records disclose that only a few of the
respondents have executed a special power of attorney, similar to the one Malonso
executed in favor of Danilo Elfa (then SANDAMA President), that would authorize Elfa to
hire Atty. Principe and his law firm to represent them. The same documents do not show
if these respondents are members of SANDAMA, which Atty. Principe claims he
represents. Also, nothing in the records would show the extent of services that Atty.
Principe has performed for the respondents. In the absence of these pertinent facts, we
deem it prudent to remand the matter to the RTC the determination of Atty. Principe's
authority to represent the respondents and his entitlement to attorney's fees, taking into
consideration the Court's ruling in Malonso.
WHEREFORE, in view of the foregoing, the assailed decision dated February 10, 2004
and the resolution dated September 13, 2004 of the Court of Appeals in CA-G.R. CV No.
62911 are AFFIRMED. aIcSED
The questions of Atty. Pedro Principe's representation and his entitlement to attorney's
fees, insofar as the respondents are concerned, are REMANDED to the Regional Trial
Court of Malolos, Bulacan, Branch 15, for resolution. The trial court is hereby ordered to
resolve these matters with due haste.
SO ORDERED.
Carpio, Villarama, Jr., * Perez and Perlas-Bernabe, JJ., concur.
||| (National Power Corp. v. Spouses Cruz, G.R. No. 165386, [July 29, 2013], 715 PHIL
348-366)
9. DYCOCO VS. CA 702 SCRA 566 (2013)
FIRST DIVISION
[G.R. No. 147257. July 31, 2013.]
457
SPOUSES JESUS DYCOCO and JOELA E. DYCOCO, petitioners, vs. THE

HONORABLE COURT OF APPEALS, NELLY SIAPNO-SANCHEZ and INOCENCIO
BERMA, 1 respondents.
DECISION
LEONARDO-DE CASTRO, J p:
This Petition for Certiorari under Rule 65 of the Rules of Court questions, for having been
rendered with grave abuse of discretion, the Resolution 2 dated June 2, 2000 of the Court
of Appeals dismissing the appeal of petitioner-spouses Jesus and Joela Dycoco in CAG.R. SP No. 58504, and the Resolution 3 dated January 10, 2001 denying
reconsideration.
On November 23, 1994, petitioner-spouses filed a complaint for ejectment, cancellation
of certificates of land transfer, damages and injunction against private respondents Nelly
Siapno-Sanchez and Inocencio Berma in the Office of the Provincial Adjudicator of the
Department of Agrarian Reform Adjudication Board (DARAB) in Albay. Eusebio Siapno,
Rogelio Siapno, Felix Sepato, Sr., Leonora Talagtag and Pablo Bonde, Sr. were also
named respondents in the complaint. 4 IDAaCc
In their complaint, petitioner-spouses alleged that they are the absolute and registered
owners of Lot No. 216, a 38,157 sq.m.-parcel of land situated at Bonbon, Libon, Albay,
covered by Original Certificate of Title (OCT) No. VH-5187 of the Register of Deeds of
Albay. According to them, the respondents named in the complaint took advantage of the
liberality of petitioner-spouses, entered the subject property, successfully registered
themselves as tenants for agrarian reform purposes, and occupied and cultivated the
property to the prejudice of petitioner-spouses. Said respondents deprived petitionerspouses of the enjoyment and possession of the property without paying petitionerspouses or the Land Bank the rentals due thereon. Moreover, in violation of agrarian
reform laws, said respondents subleased their respective landholdings to other persons.
5
Petitioner-spouses reiterated these matters in their position paper. 6
All seven respondents named in the complaint were summoned but only Bonde and
Rogelio submitted their answer and position paper. 7 Bonde and Rogelio showed that
they already own their portions of the property through Operation Land Transfer under
Presidential Decree No. 27. Pursuant to the said law, petitioner-spouses executed deeds
of transfer in their favor which resulted in the issuance to them of emancipation patents
and, subsequently, OCT No. E-2333 and OCT No. E-2334, respectively. 8
Thereafter, the Provincial Adjudicator rendered a decision dated June 27, 1995 finding
private respondents "not worthy to become beneficiaries" under Presidential Decree No.
27. 9 The dispositive portion of the decision reads: CcHDaA
WHEREFORE, finding for the complainants, respondents Nelly Siapno-Sanchez,
Leonora Talagtag and Inocencio Berma are hereby adjudged not worthy to become
beneficiaries under PD 27[;] hence[,] judgment is hereby issued:
1. Ordering the ejectment of Nelly Siapno-Sanchez, Leonora Talagtag, and Inocencio
Berma from their respective tillage;
2. Ordering Rogelio Siapno and Pablo Bonde, Sr. to comply with their obligation under
the Deed[s] of Transfer in their favor;
3. Ordering the dismissal of the case against Eusebio Siapno, for lack of evidence; and
458
4. Ordering the respondents under paragraph 1 to pay complainants jointly and severally
nominal damages in the amount of P10,000.00 and attorney's fee[s] in the amount of
P10,000.00. 10
On motion of petitioner-spouses, the Provincial Adjudicator issued a writ of execution
dated November 22, 1995 ordering, among others, the ejectment of private respondents
from their respective tillage. 11 Subsequently, petitioner-spouses filed a Motion for
Issuance of Alias Writ of Execution and to Cite Respondents in Contempt, claiming that
private respondents returned to the subject property although they have already been
ordered ejected. 12 Private respondents filed a Motion to Quash or Suspend
Implementation of the Writ of Execution. They explained that they are already the owners
of their respective portions of the property in question by virtue of the Operation Land
Transfer under Presidential Decree No. 27. According to private respondents, petitionerspouses executed deeds of transfer in their favor which resulted to the issuance to them
of emancipation patents and, afterwards, OCT No. E-2332 in the name of private
respondent Siapno-Sanchez and OCT Nos. E-2335 and E-2336 in the name of private
respondent Berma. Private respondents further asserted that the decision ordering their
ejectment from their tillage is not yet executory as they have filed a notice of appeal on
August 29, 1996. 13 EScHDA
Petitioner-spouses submitted their Comments [on]/Opposition to the Motion to
Quash/Suspend Implementation of Writ of Execution and Notice of Appeal Filed by
Respondents dated September 16, 1996 and Supplemental Comments [on]/Opposition
to the Motion to Quash/Suspend Implementation of Writ of Execution and Notice of
Appeal Filed by Respondents dated October 3, 1996 where they countered private
respondents' motion by arguing that both the motion to quash and the notice of appeal
were filed beyond the prescribed period. 14
In an order dated October 16, 1996, the Provincial Adjudicator found that the copy of the
decision dated June 27, 1995 was sent by registered mail to and, on July 10, 1995,
received by Crispina Berma Penaranda, daughter of private respondent Berma, who
resided in a different barangay. Still, the Provincial Adjudicator ruled that private
respondent Berma was bound by his daughter's receipt and the decision is already final
and executory as against him. Thus, with respect to him, the notice of appeal was filed
out of time. On the other hand, there was no showing that private respondent SiapnoSanchez has been served a copy of the decision before she procured a copy of it from
the Office of the Provincial Adjudicator on August 26, 1996. Hence, as regards her, the
notice of appeal was filed on time. Therefore, the Provincial Adjudicator denied the Motion
to Quash or Suspend Implementation of the Writ of Execution with respect to private
respondent Berma, and approved and granted the same motion with respect to private
respondent Siapno-Sanchez. 15 SCaTAc
Private respondent Berma moved for reconsideration but his motion was denied. 16
Nevertheless, he joined the appeal memorandum filed by private respondent SiapnoSanchez in the DARAB. 17 On the other hand, petitioner-spouses filed a CounterMemorandum With Motion to Dismiss Appeal dated February 9, 1997, reiterating that
private respondents' appeal was filed out of time. 18
In a decision dated March 20, 2000, 19 the DARAB found that both private respondents
were beneficiaries of Presidential Decree No. 27 and that they are no longer tenants but
owners of their respective portions of the property as evidenced by OCT No. E-2332 in
the name of private respondent Siapno-Sanchez and OCT Nos. E-2335 and E-2336 in
the name of private respondent Berma. Ejectment would therefore not lie as against them
as landholdings covered by the Operation Land Transfer under Presidential Decree No.
27 do not revert to the original owner. Thus, the DARAB reversed and set aside the
decision dated June 27, 1995 in so far as private respondents were concerned. The
459
immediate reinstatement of private respondents to their respective landholdings was

ordered, as well as their restoration to their original status as owner-beneficiaries of the
landholdings awarded to them pursuant to Presidential Decree No. 27. 20
Petitioner-spouses received a copy of the DARAB decision on April 3, 2000 and had until
April 18, 2000 to file an appeal. They filed a motion in the Court of Appeals praying for an
extension of 30 days within which to file their intended petition. 21 The Court of Appeals
granted them an extension of 15 days, with warning that no further extension will be given.
22 Thus, petitioner-spouses had until May 3, 2000 to file their petition. AHCcET
Petitioner-spouses filed the petition by registered mail on May 8, 2000. The petition was
denied due course and dismissed by the Court of Appeals in a Resolution dated June 2,
2000. In its entirety, the said resolution reads:
The petition (for review), filed under Rule 43 of the 1997 Rules of Civil Procedure is
DENIED DUE COURSE and, as a consequence, DISMISSED, for late filing, as the
petition was filed beyond the extended period of fifteen (15) days granted under
Resolution dated May 5, 2000, which resolution was issued pursuant to Section 4 of Rule
43, as follows:
xxx xxx xxx
"Sec. 4. Period of appeal. The appeal shall be taken within fifteen (15) days from notice
of the award, judgment, final order or resolution, or from the date of its last publication, if
publication is required by law for its effectivity, or of the denial of petitioner's motion for
new trial or reconsideration duly filed in accordance with the governing law of the court or
agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper
motion and the payment of the full amount of the docket fee before the expiration of the
reglementary period, the Court of Appeals may grant an additional period of fifteen (15)
days only within which to file the petition for review. No further extension shall be granted
except for the most compelling reason and in no case to exceed fifteen (15) days" . . . .
23 IEaCDH
Petitioner-spouses moved for reconsideration but it was denied in a resolution dated
January 10, 2001.
Hence, this petition.
Petitioner-spouses invoke the rule of liberality in the construction of the provisions of the
Rules of Court. The petition was filed after the period granted by the Court of Appeals
because, on April 10, 2000, they secured the services of a new counsel who still had to
study the voluminous records. They claim that the petition they filed with the Court of
Appeals is supported by compelling reasons. According to petitioner-spouses, they were
deprived of their property without just compensation either from the tenant-beneficiaries
or from the government. They were also deprived of due process when the DARAB took
cognizance of private respondents' appeal although it was filed more than one year after
the decision of the Provincial Adjudicator had become final and executory. In view of the
said reasons, the Court of Appeals should have given their petition due course although
it was filed five days after the lapse of the extended period.
Petitioner-spouses are wrong.
Firstly, petitioner-spouses are before this Court with a petition for certiorari under Rule 65
of the Rules of Court which is a wrong remedy.
A petition for certiorari under Rule 65 of the Rules of Court is a special civil action that
may be resorted to only in the absence of appeal or any plain, speedy and adequate
460
remedy in the ordinary course of law. 24 Contrary to the claim of petitioner-spouses in the
opening paragraph of their petition that there was no appeal or any other plain, speedy
and adequate remedy in the ordinary course of law other than this petition, the right
recourse was to appeal to this Court in the form of a petition for review on certiorari under
Rule 45 of the Rules of Court. HIACEa
Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari
from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan,
the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized
by law, may file with the Supreme Court a verified petition for review on certiorari. The
petition may include an application for a writ of preliminary injunction or other provisional
remedies and shall raise only questions of law, which must be distinctly set forth. The
petitioner may seek the same provisional remedies by verified motion filed in the same
action or proceeding at any time during its pendency. HSIDTE
The Resolutions dated June 2, 2000 and January 1, 2001 of the Court of Appeals were
final and appealable judgments. In particular, the Resolution dated June 2, 2000 denied
due course to the petition and dismissed it, while the Resolution dated January 1, 2001
denied the motion for reconsideration of the former Resolution. The said Resolutions
disposed of the appeal of petitioner-spouses in a manner that left nothing more to be done
by the Court of Appeals in respect to the said appeal. Thus, petitioner-spouses should
have filed an appeal by petition for review on certiorari under Rule 45, not a petition for
certiorari under Rule 65, in this Court.
The proper remedy to obtain a reversal of judgment on the merits, final order or resolution
is appeal. This holds true even if the error ascribed to the court rendering the judgment is
its lack of jurisdiction over the subject matter, or the exercise of power in excess thereof,
or grave abuse of discretion in the findings of fact or of law set out in the decision, order
or resolution. The existence and availability of the right of appeal prohibits the resort to
certiorari because one of the requirements for the latter remedy is the unavailability of
appeal. 25
The failure of petitioner-spouses to file an appeal by certiorari under Rule 45 of the Rules
of Court cannot be remedied by the mere expedient of conjuring grave abuse of discretion
to avail of a petition for certiorari under Rule 65. In Balayan v. Acorda 26 the Court ruled:
It bears emphasis that the special civil action for certiorari is a limited form of review and
is a remedy of last recourse. The Court has often reminded members of the bench and
bar that this extraordinary action lies only where there is no appeal nor plain, speedy and
adequate remedy in the ordinary course of law. It cannot be allowed when a party to a
case fails to appeal a judgment despite the availability of that remedy, certiorari not being
a substitute for a lapsed or lost appeal. Where an appeal is available, certiorari will not
prosper, even if the ground therefor is grave abuse of discretion. . . . . (Citations omitted.)
Certiorari is not and cannot be made a substitute for an appeal where the latter remedy
is available but was lost through fault or negligence. In this case, petitioner-spouses
received the Resolution dated January 1, 2001 on January 19, 2001 27 and, under the
rules, 28 had until February 5, 2001 to file an appeal by way of a petition for review on
certiorari in this Court. Petitioner-spouses allowed this period to lapse without filing an
appeal and, instead, filed this petition for certiorari on March 16, 2001. 29 IcSADC
Secondly, petitioner-spouses claim that the Court of Appeals committed grave abuse of
discretion in dismissing their appeal on the ground of late filing. This is also wrong.
The Court of Appeals granted petitioner-spouses a 15-day extension, within which to file
their intended petition. The action of the Court of Appeals was in accordance with Section
4, Rule 43 of the Rules of Court. Thus, as the original deadline of petitioner-spouses was
461
April 18, 2000, they had until May 3, 2000 to file their intended petition. Petitionerspouses, however, filed the petition on May 8, 2000. Petitioner-spouses even admit that
their petition in the Court of Appeals was filed five days after the extended period. 30 It is
therefore clear that the Court of Appeals simply applied the rules, while petitioner-spouses
concededly failed to observe the very same rules. As such, the Court of Appeals'
dismissal of the petition of petitioner-spouses was discretion duly exercised, not misused
or abused.
Where a petition for certiorari under Rule 65 of the Rules of Court alleges grave abuse of
discretion, the petitioner should establish that the respondent court or tribunal acted in a
capricious, whimsical, arbitrary or despotic manner in the exercise of its jurisdiction as to
be equivalent to lack of jurisdiction. 31 This is so because "grave abuse of discretion" is
well-defined and not an amorphous concept that may easily be manipulated to suit one's
purpose. In this connection, Yu v. Judge Reyes-Carpio 32 is instructive: aEcSIH
The term "grave abuse of discretion" has a specific meaning. An act of a court or tribunal
can only be considered as with grave abuse of discretion when such act is done in a
"capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." The
abuse of discretion must be so patent and gross as to amount to an "evasion of a positive
duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner
by reason of passion and hostility." Furthermore, the use of a petition for certiorari is
restricted only to "truly extraordinary cases wherein the act of the lower court or quasijudicial body is wholly void." From the foregoing definition, it is clear that the special civil
action of certiorari under Rule 65 can only strike an act down for having been done with
grave abuse of discretion if the petitioner could manifestly show that such act was patent
and gross. . . . . (Citations omitted.)
In this case, nowhere in the petition did petitioner-spouses show that the issuance of the
Resolutions dated June 2, 2000 and January 1, 2001 was patent and gross that would
warrant striking them down through a petition for certiorari under Rule 65 of the Rules of
Court. Petitioner-spouses simply framed the issue in this case as follows:
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
DENYING DUE COURSE TO THE PETITION FOR REVIEW FILED BY PETITIONERS
AND
SUBSEQUENTLY
DENYING
PETITIONERS'
MOTION
FOR
RECONSIDERATION. 33 HSTCcD
They did not, however, address the issue. It is noteworthy that aside from a cursory claim
in the opening paragraph and paragraph 25 of the petition that the Resolutions dated
June 2, 2000 and January 1, 2001 of the Court of Appeals were "unjust and arbitrary" and
"issued in grave abuse of judicial discretion amounting to lack or excess of jurisdiction,"
34 petitioner-spouses failed to establish grave abuse of discretion on the part of the Court
of Appeals. They have not advanced any argument to show that the Court of Appeals
exercised its judgment capriciously, whimsically, arbitrarily or despotically by reason of
passion and hostility. Thus, they failed in their duty to demonstrate with definiteness the
grave abuse of discretion that would justify the proper availment of a petition for certiorari
under Rule 65 of the Rules of Court.
Thirdly, petitioner-spouses make it appear that there are compelling reasons to support
their petition deprivation of property without just compensation and denial of due
process. The petitioner-spouses, however, belatedly raised these issues and failed to
substantiate the same. ESAHca
There is no question that petitioner-spouses are entitled under the law to receive just
compensation for the property taken from them and transferred to private respondents by
virtue of Presidential Decree No. 27. 35 Due process guarantees that taking of private
462
property by the State for public use should be with payment of just compensation. 36
Unfortunately, petitioner-spouses themselves did not consider the issue of just
compensation as compelling enough because they did not raise it in the complaint or in
the position paper which they filed in the Office of the Provincial Adjudicator. 37 They only
claimed just compensation for the first time on appeal, that is, when they filed their petition
for review with the Court of Appeals. The settled rule that issues not raised in the
proceedings below cannot be raised for the first time on appeal bursts the bubble that is
the alleged compelling nature of petitioner-spouses' claim. Petitioner-spouses ask for due
process, but fairness and due process dictate that evidence and issues not presented
below cannot be taken up for the first time on appeal. 38 cAaTED
On jurisdictional grounds, petitioner-spouses could not validly present for the first time the
issue of nonpayment of just compensation in the Court of Appeals. Under the law, the
DARAB has primary, original and exclusive jurisdiction over cases involving payments for
lands awarded under Presidential Decree No. 27. 39
In any event, the right of petitioner-spouses to payment of just compensation does not
include reacquisition of ownership and possession of the property transferred to private
respondents pursuant to Presidential Decree No. 27. Lands acquired under Presidential
Decree No. 27 do not revert to the landowner. 40
The due process claim of petitioner-spouses has no leg to stand on. They have had ample
opportunity to defend their interests in due course. 41 Stripped to its basic concept, due
process is simply the opportunity to be heard or, as applied to administrative proceedings,
the opportunity to explain one's side or the opportunity to seek a reconsideration of the
action or ruling complained of. 42 Petitioner-spouses were given the chance to sufficiently
state their case concerning the timeliness of the notice of appeal filed by private
respondents. In particular, they submitted to the Office of the Provincial Adjudicator their
Comments [on]/Opposition to the Motion to Quash/Suspend Implementation of Writ of
Execution and Notice of Appeal Filed by Respondents dated September 16, 1996 and
Supplemental Comments [on]/Opposition to the Motion to Quash/Suspend
Implementation of Writ of Execution and Notice of Appeal Filed by Respondents dated
October 3, 1996 where they argued that both the motion to quash and the notice of appeal
of private respondents were filed beyond the prescribed period. 43 In the DARAB level,
petitioner-spouses filed a Counter-Memorandum With Motion to Dismiss Appeal dated
February 9, 1997 where they again pointed out that the appeal of private respondents
was filed out of time. 44 Thus, petitioner-spouses cannot correctly claim that they were
not heard on the matter. ITDHSE
More importantly, it has already been found that the notice of appeal was filed on time,
particularly with respect to private respondent Siapno-Sanchez. 45 To question such
finding is to raise a question of fact. However, it is settled that questions of fact cannot be
raised in an original action for certiorari. 46 Only established or admitted facts can be
considered. 47 In this connection, it has been established that the copy of the Provincial
Adjudicator's decision dated June 27, 1995 was sent by registered mail to and received
by private respondent Berma's daughter who lived in another barangay. 48 Such receipt
by Berma's daughter cannot be validly considered as service of the Provincial
Adjudicator's decision on Berma. Sections 4 and 9, Rule V of the DARAB New Rules of
Procedure, which became effective on June 22, 1994, provides:
SECTION 4. Service of Pleadings, Notices and Resolutions. a) The party filing the
pleading shall serve the opposing party with a copy thereof in the manner provided for in
these Rules and proof of such service shall be filed with the records of the case; and
b) Summons, notices and copies of resolutions, orders or decisions shall be served
personally as far as practicable, or by registered mail upon the party himself, his counsel,
463
or his duly authorized representative. However, notice to the counsel is notice to the party
himself whether he be a complainant or petitioner, or a defendant or respondent. CHcETA
xxx xxx xxx
SECTION 9. Proof of Completeness of Service. The return is a prima facie proof of the
facts indicated therein. Service by registered mail is completed upon receipt by the
addressee, his counsel, or by the duly authorized representative or agent. (Emphases
supplied.)
At that time, private respondent Berma had neither counsel nor duly authorized
representative. Therefore, the copy of the Provincial Adjudicator's decision should have
been served on Berma personally or by registered mail. As it was sent by registered mail
to private respondent Berma as the addressee, service thereof could only have been
completed upon receipt by Berma. As it was not received by private respondent Berma
but by his daughter who resided in another barangay, there was no proper and completed
service of the Provincial Adjudicator's decision on Berma. Thus, with respect to him, the
notice of appeal was also filed on time.
Petitioner-spouses primarily anchor this petition on an invocation of the rule on liberality
in the construction of procedural rules. However, the "liberal construction rule" is not a
license to disregard procedural requirements. Like all rules, procedural rules should be
followed except only when, for the most persuasive of reasons, they may be relaxed to
relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness
in not complying with the prescribed procedure. 49 Petitioner-spouses caused their own
predicament when they decided to change horses in midstream and engaged the services
of their present counsel on April 10, 2000 or just a week before the expiration of the period
to appeal in the Court of Appeals, discharging the services of their former counsel who
handled the case from the level of the Provincial Adjudicator to the DARAB. They cannot
escape the consequences of a belated appeal caused by the need of their new counsel
for more time to study voluminous records and familiarize himself with the case.
Moreover, as shown above, petitioner-spouses not only failed to show any persuasive
reason why they should be exempted from strictly abiding by the rules when they filed
their petition for review in the Court of Appeals beyond the prescribed period. They again
disregarded the rules in various ways absent any compelling reason when they filed this
petition.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED. aHcACI
Sereno, C.J., Bersamin, Villarama, Jr. and Reyes, JJ., concur.
||| (Spouses Dycoco v. Court of Appeals, G.R. No. 147257, [July 31, 2013], 715 PHIL
550-569)
10. LBP VS. AMERICAN RUBBER CORP 702 SCRA 166 (2013)
FIRST DIVISION
[G.R. No. 188046. July 24, 2013.]
LAND BANK OF THE PHILIPPINES,
CORPORATION, respondent.
DECISION
464
petitioner,
vs.
AMERICAN
RUBBER
Before us is a petition for review on certiorari filed by Land Bank of the Philippines (LBP)
assailing the August 26, 2008 Decision 1 and May 12, 2009 Resolution 2 of the Court of
Appeals (CA)-Mindanao Station in CA-G.R. SP No. 00990-MIN which affirmed with
modification the Orders 3 dated June 16, 2005 and March 14, 2006 of the Regional Trial
Court (Special Agrarian Court [SAC]) of Pagadian City, Branch 18. ESTCHa
The facts follow:
American Rubber Corporation (respondent) is the registered owner of two parcels of land
with a combined area of 940.7276 hectares situated in Barangay Baluno, Isabela City,
Basilan. The first parcel with an area of 927.9366 hectares is covered by Transfer
Certificate of Title (TCT) No. T-1286, while the second parcel consists of 12.7910
hectares under TCT No. T-1285. 4
Sometime in January 1998, respondent voluntarily offered to sell the two parcels and
another property (TCT No. T-4747) together with all improvements for the total price of
P105,732,921.00. Subsequently, respondent offered to sell only the properties covered
by TCT Nos. T-1285 and T-1286 at the higher amount of P83,346.77 per hectare, for the
total price of P1,066,588.60 (12.7970 hectares) and P76,928,492.00 (922.9930
hectares), respectively. 5
The Department of Agrarian Reform (DAR) initially acquired 835.0771 hectares of
respondent's landholding, with an average valuation of P64,288.16 per hectare or for a
total amount of P53,685,570.62. Subsequently, an additional 37.7013 hectares were also
covered, with an average valuation of P62,660.10 per hectare or for a total amount of
P1,604,141.34. The total area acquired by DAR was 888.6489 hectares valued by
petitioner at P55,682,832.67. 6
Since respondent rejected DAR's offer based on petitioner's valuation, the Provincial
Agrarian Reform Office (PARO) endorsed the claim folder to the Department of Agrarian
Reform Adjudication Board (DARAB) Central Office for summary administrative
proceedings. 7 DAR also requested petitioner to deposit the amount fixed as
compensation for respondent's land. On February 22, 2000, petitioner deposited in cash
and agrarian reform bonds the sum of P53,685,570.62. 8 Upon orders of the DAR
Secretary, respondent's titles were partially cancelled and new transfer certificates of title
were issued over the areas taken in the name of the Republic of the Philippines on August
7, 2000. Thereafter, DAR issued Certificates of Land Ownership Award (CLOAs) in favor
of the agrarian reform beneficiaries. 9
Exasperated by DARAB's inaction for more than two years, respondent filed in the
Regional Trial Court (SAC) a suit 10 for judicial determination of just compensation (Civil
Case No. 4401-2K2). Petitioner filed a motion to dismiss 11 on the ground of nonexhaustion of administrative remedies, citing the pendency of administrative proceedings
and respondent's admission that it had withdrawn and collected the preliminary amount
of compensation deposited by petitioner. On January 28, 2003, the SAC denied the
motion to dismiss. 12 Petitioner's motion for reconsideration was likewise denied. 13
SDHCac
Pursuant to the Rules of Court, the SAC designated three commissioners nominated by
the parties: an IBP member (Ret. Judge Cecilio G. Martin) as Chairman, and Engr. Sean
C. Collantes from the Development Bank of the Philippines and BIR Revenue Officer
Cesar P. Dayagdag as Members.
On July 29, 2004, the Commissioners' Report 14 was submitted to the Court, with the
following findings and recommendation:
465
INVESTIGATIONS TAKEN
On March 8, 2004[,] we conducted an ocular inspection. The entire membership of the
Court appointed commissioners were all present and both the contending parties also
sent their duly authorized representatives.
Our ocular inspection reveal that both parcels of land are pre-dominantly planted to rubber
with an approximate density of 290-295 rubber trees per hectare. There are relatively
smaller portions thereof which are devoted to the production of rice, cacao, coffee, black
pepper, and coconuts. Also found inside the rubber plantation are plant nurseries, office
buildings and other infrastructures. The land has an airstrip of about 10 hectares and is
likewise traversed and criss-crossed by plantation roads, which were built by plaintiff,
American Rubber, containing an area of 27 hectares more or less. The location [of] the
rubber plantation is approximately 8 kilometers to the city proper of Isabela, Basilan.
During the course of ocular inspection, some of our members inquired from
occupants/workers of the rubber plantation and adjoining owners to get information on
the probable selling price of land particularly rubberland. Our inquiry revealed that
rubberland commands a selling price of between P120,000 to P150,000 depending on
the size of the land and condition of the rubber trees.
xxx xxx xxx
. . . we conducted inquiries from the different government agency/officials such as the
City Assessors Office of Isabela, Department of Agriculture, Register of Deeds,
Department of Agrarian Reform, and the Bureau of Internal Revenue for the purpose of
obtaining information on the approximate selling price of rubberland in the Isabela City
area. Our investigation reveal that the reasonable selling price of rubber [land] within the
City of Isabela ranges from P90,000 to P150,000.
During the March 26, 2004 hearing, defendant LBP submitted a Valuation Summary for
plaintiff's property while the plaintiff submitted a copy of the appraisal report prepared by
Cuervo Appraisers, Inc. . . . cCaSHA
xxx xxx xxx
RECOMMENDATIONS
xxx xxx xxx
In VIEW of all the foregoing considerations, this Commission hereby recommends that
just compensation of the [plaintiff's] property be fixed at ONE HUNDRED FIFTEEN
MILLION THREE HUNDRED SEVENTY TWO THOUSAND TWO HUNDRED SIX
PESOS (P115,372,206) . . . . 15
On June 16, 2005, the SAC issued an Order 16 adopting the Commissioners'
recommendation:
WHEREFORE, judgment is hereby rendered ordering defendant LBP and DAR to jointly
and severally pay [plaintiff] the following:
1. Just compensation of [plaintiff's] property amounting to ONE HUNDRED FIFTEEN
MILLION THREE HUNDRED SEVENTY TWO THOUSAND TWO HUNDRED SIX
PESOS (P115,372,206) which amount is broken down below:
LAND USE
466
AREA
VALUE/
TOTAL
TAKEN
HECTARE
VALUE
Rubberland
814.6625
P130,342
P106,184,739
Riceland
14.8470
P126,000
P1,870,722
Coconutland
5.5676
P98,430
P548,018
Cacaoland
0.8971
P157,063
P140,901
Idle/Rawland
13.4160
P80,000
P1,073,280
Black Pepper land
0.5918
P218,013
P129,020
Plant Nursery
1.5574
P200,000
P311,480
Plantation road
27.5043
P130,342
P3,584,496
Airstrip
10.1970
P150,000
P1,529,550
GRAND TOTAL
P115,372,206
===========
467
2. Interest based on the 91-day treasury bills rate as provided for under Section 18 of
R.A. 6657 be reckoned from the [date] when [plaintiff's] property was taken and/or
transferred to the Republic of the Philippines;
3. Commissioners fees to be taxed as part of the costs pursuant to Section 12, Rule 67,
of the 1997 RCP, as amended, which shall be claimed in a Bill of Costs to be submitted
to the Court for its evaluation and proper action thereto; SETaHC
4. Reasonable attorney's fees amounting to One Hundred Fifty Thousand Pesos
(P150,000.00);
5. Costs of suit.
SO ORDERED. 17
After the SAC denied its motion for reconsideration, petitioner filed a petition for review
under Rule 43 with the CA.
On August 26, 2008, the CA rendered the assailed decision, the dispositive portion of
which reads:
WHEREFORE, premises foregoing, the instant petition is PARTIALLY GRANTED. The
assailed Orders dated June 16, 2005 and March 14, 2006 of Branch 18 of the Regional
Trial Court of Pagadian City is hereby AFFIRMED with MODIFICATION that the award of
interest based on the 91-day treasury bill is deleted.
SO ORDERED. 18
The CA also denied petitioner's motion for reconsideration.
Hence, this petition asserting that
1. THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF LAW IN
AFFIRMING WITH MODIFICATION THE ORDERS DATED JUNE 16, 2005 AND
MARCH 14, 2006 OF THE SPECIAL AGRARIAN COURT (SAC), THE COMPENSATION
FIXED BY THE SAC NOT BEING IN ACCORDANCE WITH THE LEGALLY
PRESCRIBED VALUATION FACTORS UNDER SECTION 17 OF R.A. 6657 AS
TRANSLATED INTO A BASIC FORMULA IN DAR ADMINISTRATIVE ORDER NO. 05,
SERIES OF 1998 AND JOINT DAR-LBP MEMORANDUM CIRCULAR NO. 7, SERIES
OF 1999, AND AS RULED BY THE SUPREME COURT IN THE CASES OF SPS.
BANAL, G.R. NO. 143276 (JULY 20, 2004); CELADA, G.R. NO. 164876 (JANUARY 23,
2006); AND LUZ LIM, G.R. NO. 171941 (AUGUST 2, 2007).
2. THE HONORABLE COURT OF APPEALS [ERRED] IN HOLDING PETITIONER LBP
LIABLE FOR COMMISSIONERS' FEE AS THE LATTER IS PERFORMING
GOVERNMENTAL FUNCTION AND, THEREFORE, NOT LIABLE FOR COST. 19
Petitioner assails the CA in affirming the SAC valuation which merely adopted the
Commissioners' Report which, in turn, is based solely on the recommended valuation by
respondent's private appraiser, Cuervo Appraisers, Inc. using a different criteria. It cites
our ruling in Land Bank of the Philippines v. Kumassie Plantation Company, Inc. 20 where
this Court noted that no basis had been shown in the appraisal report for concluding that
the market data approach and income approach, the same criteria used by Cuervo
Appraisers, Inc. in this case, "conformed to statutory and regulatory requirements." 21
Accordingly, we sustained in said case the valuation made by LBP, which was patterned
after the applicable administrative order issued by the DAR. HIAEcT
468
Petitioner further points out that the SAC's valuation violated AO 5 guidelines stating that
"the computed value using the applicable formula shall in no case exceed the
[Landowner's] offer in case of VOs." 22 In this case, respondent's revised offer was only
P83,346.77 per hectare but the SAC arrived at an average value of P129,742.38 per
hectare which is 55.66% more than the landowner's offer.
Respondent, on the other hand, distinguished the factual setting of this case from that of
Land Bank v. Kumassie Plantation Company, Inc. 23 It points out that in Kumassie, the
SAC merely cited the location of the land and nature of the trees planted, and relied
heavily on the appraisal report of the private appraiser which pegged the value of the land
on its potential benefits of land ownership. But here, respondent claims that the SAC
through its appointed commissioners, "appeared to have dwelt on the Market Data
Approach, Income Approach and Residual Value Approach, in determining just
compensation of respondent's property, the data gathered under the said approaches to
valuation basically encompassed/embraced most, if not all, of the factors enumerated in
Section 17, R.A. 6657 in relation to the relevant DAR Administrative Orders." 24 It cannot
be said, therefore, that the SAC herein had no basis in fixing the just compensation of
respondent's property after having taken into consideration the factors enumerated in
Section 17 of R.A. No. 6657.
Respondent further invokes our ruling in Apo Fruits Corporation v. Court of Appeals, 25
where this Court upheld the valuation made by the RTC which did not merely rely on the
report of Commissioners nor on the Cuervo appraiser's report but also took into account
the nature of the property as irrigated land, location along the highway, market value,
assessor's value and the volume and value of its produce, such valuation was considered
to be in accordance with R.A. No. 6657.
Section 17 of the law enumerates the factors to be considered by the RTC in determining
just compensation to be paid to the landowner:
Section 17. Determination of Just Compensation. In determining just compensation,
the cost of acquisition of the land, the current value of like properties, its nature, actual
use and income, the sworn valuation by the owner, the tax declarations, and the
assessment made by government assessors, shall be considered. The social and
economic benefits contributed by the farmers and the farmworkers and by the
Government to the property as well as the non-payment of taxes or loans secured from
any government financing institution on the said land shall be considered as additional
factors to determine its valuation. CEaDAc
Thus, the RTC shall be guided by the following factors in just compensation cases: (1)
the acquisition cost of the land; (2) the current value of the properties; (3) its nature, actual
use, and income; (4) the sworn valuation by the owner; (5) the tax declarations; (6) the
assessment made by government assessors; (7) the social and economic benefits
contributed by the farmers and the farmworkers, and by the government to the property;
and (8) the non-payment of taxes or loans secured from any government financing
institution on the said land, if any. 26 These factors have been translated into the following
basic formula under relevant issuances 27 by the DAR:
LV = (CNI x 0.6) +(CS x 0.3)+(MV x 0.1)
Where:LV = Land Value
CNI = Capitalized Net Income
CS = Comparable Sales
MV = Market Value per Tax Declaration 28
The mandatory application by the RTC of the above formula in accordance with DAR
administrative orders and circulars had been settled by this Court. In Land Bank of the
Philippines v. Honeycomb Farms Corporation, 29 we cited a long line of jurisprudence
and reiterated the standing rule on the matter:
469
In Land Bank of the Philippines v. Sps. Banal, we recognized that the DAR, as the
administrative agency tasked with the implementation of the agrarian reform program,
already came up with a formula to determine just compensation which incorporated the
factors enumerated in Section 17 of RA 6657. We said:
"These factors [enumerated in Section 17] have been translated into a basic formula in
DAR Administrative Order No. 6, Series of 1992, as amended by DAR Administrative
Order No. 11, Series of 1994, issued pursuant to the DAR's rule-making power to carry
out the object and purposes of R.A. 6657, as amended." [emphases ours]
In Landbank of the Philippines v. Celada, we emphasized the duty of the RTC to apply
the formula provided in the applicable DAR AO to determine just compensation, stating
that:
"While [the RTC] is required to consider the acquisition cost of the land, the current value
of like properties, its nature, actual use and income, the sworn valuation by the owner,
the tax declaration and the assessments made by the government assessors to
determine just compensation, it is equally true that these factors have been translated
into a basic formula by the DAR pursuant to its rule-making power under Section 49 of
R.A. No. 6657. As the government agency principally tasked to implement the agrarian
reform program, it is the DAR's duty to issue rules and regulations to carry out the object
of the law. [The] DAR [Administrative Order] precisely "filled in the details" of Section 17,
R.A. No. 6657 by providing a basic formula by which the factors mentioned therein may
be taken into account. The [RTC] was at no liberty to disregard the formula which was
devised to implement the said provision. DEICHc
It is elementary that rules and regulations issued by administrative bodies to interpret the
law which they are entrusted to enforce, have the force of law, and are entitled to great
respect. Administrative issuances partake of the nature of a statute and have in their favor
a presumption of legality. As such, courts cannot ignore administrative issuances
especially when, as in this case, its validity was not put in issue. Unless an administrative
order is declared invalid, courts have no option but to apply the same." [emphases ours]
We reiterated the mandatory application of the formula in the applicable DAR
administrative regulations in Land Bank of the Philippines v. Lim, Land Bank of the
Philippines v. Heirs of Eleuterio Cruz, and Land Bank of the Philippines v. Barrido. In
Barrido, we were explicit in stating that:
"While the determination of just compensation is essentially a judicial function vested in
the RTC acting as a Special Agrarian Court, the judge cannot abuse his discretion by not
taking into full consideration the factors specifically identified by law and implementing
rules. Special Agrarian Courts are not at liberty to disregard the formula laid down in DAR
A.O. No. 5, series of 1998, because unless an administrative order is declared invalid,
courts have no option but to apply it. The courts cannot ignore, without violating the
agrarian law, the formula provided by the DAR for the determination of just
compensation." (emphases ours)
These rulings plainly impose on the RTC the duty to apply the formula laid down in the
pertinent DAR administrative regulations to determine just compensation. Clearly, the CA
and the RTC acted with grievous error when they disregarded the formula laid down by
the DAR, and chose instead to come up with their own basis for the valuation of the
subject land. 30 [Additional emphasis and underscoring supplied; citations omitted.]
In ruling for the respondent, the CA ruled that the RTC is not bound to adopt exclusively
the formula set by DAR's issuances, citing this Court's ruling in Apo Fruits Corporation v.
Court of Appeals, 31 and that the SAC "may in the exercise of its judicial discretion use
470
other factors and alternative formula in fixing the proper valuation of just compensation.
ICTaEH
As already mentioned, the SAC is duty-bound to apply the formula laid down in DAR AO
No. 5. The CA clearly erred in affirming the valuation by the SAC in this case based on
the private appraiser's correlated income, market data and residual value approaches
which did not conform to the guidelines set forth in DAR AO No. 5 and Joint DAR-LBP
Memorandum Circular (MC) No. 7, Series of 1999. It must be stressed that MC No. 7 was
issued to provide revised guidelines in determining the Capitalized Net Income (CNI)
specifically for rubberlands:
1. PREFATORY STATEMENT
The rubber plantation income models presented under the old rubber Land Valuation
Guideline (LVG No. 6, Series of 1990) recognized the income of rubber plantations based
on processed crumb rubber. However, recent consultations with rubber authorities
(industry, research, etc.) disclosed that the standard income approach to valuation should
measure the net income or productivity of the land based on the farm produce (in their
raw forms) and not on the entire agri-business income enhanced by the added value of
farm products due to processing. Hence, it is more appropriate to determine the
Capitalized Net Income (CNI) of rubber plantations based on the actual yield and farm
gate prices of raw products (field latex and cuplump) and the corresponding cost of
production.
There is also a growing market for old rubber trees which are estimated to generate net
incomes ranging between P20,000 and P30,000 per hectare or an average of about P100
per tree, depending on the remaining stand of old trees at the end of its economic life.
This market condition for old rubber trees was not present at the time LVG No. 6, Series
of 1990, was being prepared. (The terminal or salvage value of old rubber trees was at
that time pegged at only P6,000 per hectare, representing the amount then being paid by
big landholders to contractors for clearing and uprooting old trees.
LVG No. 6, Series of 1990, was therefore revised to address the foregoing considerations
and in accordance with DAR Administrative Order (AO) No. 05, Series of 1998.
Petitioner, however, admits that it did not consider data on comparative sales transactions
(CS) which it said are not applicable since under DAR AO 5, the sales transactions should
have been executed "within the period January 1, 1985 to June 15, 1988 and registered
within the period January 1, 1985 to September 13, 1988." 32 SECcIH
We cannot accept petitioner's valuation as it failed to consider the value of the property
at the time of taking, the current value of like properties being among those factors
enumerated in Section 17. Indeed, these administrative issuances or orders, though they
enjoy the presumption of legalities, are still subject to the interpretation by the Supreme
Court pursuant to its power to interpret the law. While rules and regulation issued by the
administrative bodies have the force and effect of law and are entitled to great respect,
courts interpret administrative regulations in harmony with the law that authorized them
and avoid as much as possible any construction that would annul them as invalid exercise
of legislative power. 33
This Court has defined "just compensation" for parcels of land taken pursuant to the
agrarian reform program as "the full and fair equivalent of the property taken from its
owner by the expropriator." The measure of compensation is not the taker's gain but the
owner's loss. 34 Just compensation means the equivalent for the value of the property at
the time of its taking. It means a fair and full equivalent value for the loss sustained. All
the facts as to the condition of the property and its surroundings, its improvements and
capabilities should be considered. 35 Thus, the current value of like properties should
471
have been considered by petitioner to accurately determine the value of the land at the
time of taking, that is, in August 2000 when respondent's title was transferred to the
Government.
In Land Bank of the Philippines v. Heirs of Salvador Encinas we said that:
The "taking of private lands under the agrarian reform program partakes of the nature of
an expropriation proceeding." In computing the just compensation for expropriation
proceedings, the RTC should take into consideration the "value of the land at the time of
the taking, not at the time of the rendition of judgment." "The 'time of taking' is the time
when the landowner was deprived of the use and benefit of his property, such as when
title is transferred to the Republic. 36
However, while the CA correctly observed that petitioner's valuation omitted an integral
factor mandated by Section 17, the records are bereft of any supporting evidence to
compute the CS. The documents submitted by the respondent to the Commissioners
consisted merely of sworn affidavits of adjacent owners/sellers and not registerable deeds
of sale. The SAC's decision actually did not contain any discussion of its application of
any formula to the facts established by evidence, as it merely adopted the
Commissioners' Report, which in turn was based solely on the findings and computation
of the Cuervo Appraisal Report. EIDATc
Considering, therefore, that the SAC based its valuation on a different formula, 37 while
petitioner failed to take into full consideration the factors set forth in Section 17, and in the
absence of sufficient evidence for the determination of just compensation, 38 we are
constrained to remand the present case to the SAC for the determination of just
compensation in accordance with Section 17 of RA 6657, DAR AO 5, Series of 1998 and
Joint DAR-LBP MC No. 7, Series of 1999. The said trial court may, motu proprio or at the
instance of any of the parties, again appoint one or more commissioners to ascertain facts
relevant to the dispute and file a written report thereof. 39
WHEREFORE, the petition is GRANTED. The August 26, 2008 Decision and May 12,
2009 Resolution of the Court of Appeals-Mindanao Station in CA-GR. SP No. 00990-MIN
are REVERSED and SET ASIDE. The case is hereby REMANDED to the Regional Trial
Court (Special Agrarian Court) of Pagadian City, Branch 18, which is directed to
determine with dispatch, and with the assistance of at least three commissioners, the just
compensation due to the respondent American Rubber Corporation, in accordance with
Section 17 of R.A. No. 6657, DAR AO 5, Series of 1998, Joint DAR-LBP MC No. 7, Series
of 1999 and other applicable DAR issuances.
SO ORDERED.
Sereno, C.J., Leonardo-de Castro, Bersamin and Reyes, JJ., concur.
||| (Land Bank of the Phils. v. American Rubber Corp., G.R. No. 188046, [July 24, 2013],
715 PHIL 154-171)
11. REPUBLIC VS. BPI 705 SCRA 560 (2013)
SECOND DIVISION
[G.R. No. 203039. September 11, 2013.]
472
REPUBLIC OF THE PHILIPPINES, represented by the DEPARTMENT OF PUBLIC

WORKS AND HIGHWAYS (DPWH), petitioner, vs. BANK OF THE PHILIPPINE ISLANDS
(BPI), respondent.
DECISION
CARPIO, J p:
The Case
Before the Court is a petition for review 1 assailing the Decision 2 dated 14 September
2011 and Resolution 3 dated 06 August 2012 of the Court of Appeals in CA-G.R. CV No.
79843, affirming the Order 4 dated 03 February 2003 of the Regional Trial Court of Las
Pias City in Civil Case No. LP 98-0031.
The Antecedent Facts
On 12 February 1998, the Department of Public Works and Highways (DPWH) filed with
the Regional Trial Court, National Capital Region, Las Pias City, Branch 275 (trial court),
a case for expropriation against portions of the properties of Bank of the Philippine Islands
(BPI) and of Bayani Villanueva (Villanueva) situated in Pamplona, Las Pias City. DPWH
needed 281 square meters of BPI's lot covered by Transfer Certificate of Title (TCT) No.
T-59156 and 177 square meters from Villanueva's lot covered by TCT No. T-64556 for
the construction of the Zapote-Alabang Fly-Over. 5
Neither BPI nor Villanueva objected to the propriety of the expropriation; 6 hence, the trial
court constituted a Board of Commissioners to determine the just compensation. 7 In their
Report dated 29 September 1998, 8 the Board of Commissioners recommended the
amount of P40,000.00 per square meter as the fair market value. On 25 November 1998,
the trial court in its Decision set the fair market value at P40,000.00 per square meter: 9
The property of BPI, which was affected, consists of 281 square meters and that of
Defendant Villanueva consists of 177 square meters. Hence the amount to be awarded
to the defendants shall be computed as follows: ICAcTa
BPI 281 sq. meters x P40,000.00 = P11,240,000.00; and
Villanueva 177 sq. meters x P40,000.00 = P7,080,000.00
Considering that the plaintiff has deposited the amount of P632,250.00 with respect to
the property of BPI, the latter should receive the amount of P10,607,750.00.
With respect to Defendant Villanueva, the plaintiff deposited the provisional amount of
P2,655,000.00, hence, the remaining amount to be paid is P4,425,000.00.
WHEREFORE, in view of the foregoing, judgment is hereby rendered ordering the plaintiff
Republic of the Philippines as represented by the Department of Public Works and
Highways to pay defendant Bank of the Philippine Islands the amount of TEN MILLION
SIX HUNDRED SEVEN THOUSAND AND SEVEN HUNDRED FIFTY PESOS
(P10,607,750.00) and Defendant Bayani Villanueva the amount of FOUR MILLION FOUR
HUNDRED TWENTY FIVE THOUSAND (P4,425,000.00), as just compensation for their
properties which were expropriated. 10
On 15 December 1998, the acting branch clerk of court issued a Certification 11 stating
that:
473
. . . the Decision in this case dated November 25, 1998 has become FINAL, EXECUTORY
and UNAPPEALABLE as of December 11, 1998 considering that the Office of the Solicitor
General failed to file any Notice of Appeal or Motion for Reconsideration despite receipt
of a copy thereof on November 26, 1998.
This certification is being issued upon the request of Atty. Jansen Rodriguez for whatever
legal purpose it may serve.
Meanwhile, BPI filed on 16 December 1998 a Motion for Partial New Trial 12 to determine
the just compensation of its building, which was not included in the Decision dated 25
November 1998 that fixed the just compensation for the parcels of land. In the motion,
BPI claimed that its motion was timely filed since it received a copy of the Decision on 01
December 1998. 13 The trial court granted partial new trial in an Order dated 06 January
1999. DAEIHT
Due to the failure of counsel for petitioner, despite notice, to appear during the scheduled
hearing for the determination of the just compensation of the building, the trial court
allowed BPI to present its evidence ex parte. 14 On O1 September 1999, the trial court
admitted the exhibits presented by BPI. 15 On the same day, the trial court also appointed
as commissioner the Officer-in-Charge of the trial court, Leticia B. Agbayani (Agbayani),
and ordered her to conduct an ocular inspection of the building. 16 Agbayani reported the
following findings:
a) That the undersigned found out that a new building was constructed and a picture of
said building is hereto attached and made as an integral part hereof as Annex "A" and;
b) That the building was moved back when it was constructed to conform with the
requirement of the Building Code; and
c) Improvements were introduced around the building. 17
In its Decision dated 10 September 1999, 18 the trial court held that just compensation
for the building was due and ordered petitioner to pay BPI the amount of P2,633,000.00.
The dispositive portion of the Decision reads:
WHEREFORE, IN VIEW OF THE FOREGOING, judgment is hereby rendered ordering
the plaintiff Republic of the Philippines represented by the Department of Public Works
and Highways to pay defendant Bank of the Philippine Island (sic) the amount of TWO
MILLION SIX HUNDRED THIRTY THREE [THOUSAND] PESOS (PHP2,633,000.00). 19
Petitioner moved for the reconsideration 20 of the 10 September 1999 Decision on the
ground that the proceeding fixing the just compensation of the building is null and void for
not complying with the mandatory procedure set forth in Sections 5 to 8 of Rule 67 of the
Rules of Court. 21
After due hearing, the trial court granted on 14 February 2000 petitioner's motion for
reconsideration and ordered that the Decision dated 10 September 1999 be set aside
and vacated. 22 From this order, BPI filed a motion for reconsideration, 23 on the ground
that there was substantial compliance with the Rules. The trial court denied BPI's motion
for reconsideration. 24
On 19 September 2000, the trial court appointed Atty. Edgar Allan C. Morante, the branch
clerk of court, as the chairman of the Board of Commissioners, and gave petitioner and
BPI ten days to submit their respective nominees and their oaths of office. 25 On 28
September 2000, BPI nominated Roland Savellano (Savellano), and submitted his oath
of office. 26
474
Instead of submitting its nominee, petitioner filed on 13 October 2000 a Manifestation and
Motion 27 objecting to the propriety of paying just compensation for BPI's building and
praying that BPI's claim for additional just compensation be denied. Petitioner claimed
that the building was never taken by the government. 28 In support, petitioner attached a
letter dated 12 September 2000 from the DPWH, addressed to the Solicitor General. The
letter states, in part: DHSCEc
. . . the original plan affecting the subject property was not implemented. The width of the
sidewalk at the premises under consideration was actually reduced from 2.50 m to 2.35
m . . . to avoid the costly structure of that bank. 29
In its opposition, 30 BPI claimed that it was not aware that the original plan was not
implemented. It received no correspondence from the DPWH on the matter, except for
the letter dated 12 August 1997 from DPWH addressed to BPI, stating in part that:
We regret to inform you that adjustment of the RROW limit of our project along this section
is not possible as it will affect the effective width of the sidewalk designated at 2.50 m.
wide. 31 (Emphasis in the original)
BPI also argued that even "if a 3-meter setback is observed, only 75% of the old building
could be utilized . . . [and] cutting the support system of the building . . . would affect the
building's structural integrity." 32
On 07 May 2001, the trial court denied 33 petitioner's motion dated 09 October 2000, and
ruled that the demolition of the old building of BPI can be construed as a consequential
damage suffered by BPI as a result of the expropriation. Petitioner was thus ordered to
submit its nominee to the Board of Commissioners.
Petitioner nominated Romulo C. Gervacio (Gervacio), the Officer-in-Charge of the City
Assessor's Office in Las Pias City. The Board thus constituted, the trial court ordered
the Commissioners to submit their recommendation.
Commissioner for BPI Savellano recommended the amount of P2,633,000.00, which was
based on the appraisal conducted by an independent professional business and property
consultant. 34 On the other hand, Commissioner for petitioner Gervacio recommended
the amount of P1,905,600.00, which was the market value indicated on the tax declaration
of said building. The Commissioner's Report 35 presented both the recommendations of
Savellano and Gervacio for the trial court's consideration.
The Trial Court's Ruling
The trial court issued the Order 36 dated 03 February 2003, adopting the
recommendation of Gervacio of P1,905,600.00, thus: HSAcaE
The Court approves the Recommendation dated October 22, 2001 of ONE MILLION
NINE HUNDRED FIVE THOUSAND SIX HUNDRED PESOS (P1,905,600.00) by
Commissioner ROMULO C. GERVACIO as the just compensation of the building of the
Bank of the Philippine Islands (BPI) Zapote affected by the construction of the ZapoteAlabang Fly-over, it appearing that such amount is the existing market value of the
property pursuant to the Declaration by BPI as the market value of the building affected
by the project as contained in Tax Declaration D-006-02044.
Let the same amount be paid by the Republic of the Philippines through the Department
of Public Works and Highways as the just compensation for the property. 37
Petitioner filed an appeal with the Court of Appeals docketed as CA-G.R. CV No. 79843.
38
475
The Court of Appeals' Ruling

On 14 September 2011, the Court of Appeals dismissed the appeal and affirmed the order
of the trial court. The relevant portions of the decision state:
We cannot sustain plaintiff-appellant's proposition that the decision dated November 25,
1998 has already attained finality there being no appeal filed within the reglementary
period as provided in Section 3, Rule 41 of the 1997 Rules of Civil Procedure.
Pursuant to Section l, Rule 37 of the Rules of Civil Procedure, the period within which an
aggrieved party may move the trial court to set aside the judgment or final order and file
a motion for new trial is within the period to file an appeal, which is fifteen (15) days from
receipt of the judgment or final order. It is explicit from the stated provision that the fifteen
day period to file a motion for new trial will start to run from receipt of judgment or final
order. A judgment, final order or resolution shall be served upon a party either personally
or through registered mail. Moreover, Section 13 of Rule 13 of the Rules of Civil
Procedure specifically provides for the proof of service of judgments, final orders or
resolution . . . . CIAacS
xxx xxx xxx
Guided by the foregoing provisions of law, the crucial fact in which the finality of the
decision dated November 25, 1998 with respect to defendant-appellee, depends in the
determination of the date of its receipt of the copy of the said decision in order to ascertain
whether its motion for partial new trial was filed within the 15-day period allowed by law.
In this case, records bear that a copy of the decision dated November 25, 1998, ordering
the payment of just compensation for the expropriated land was received in behalf of
defendant Bayani Villanueva on the same day of its promulgation. A copy of the said
decision was also served upon plaintiff-appellant through the OSG on November 26,
1998. However, there is no showing, that defendant-appellee through its counsel received
a copy of the trial court's decision on a definite date. No official return nor affidavit of the
party serving the decision was attached to the records of the case. Neither was the
presence of a registry receipt issued by the mailing office nor a registry return card
containing the date of receipt of the decision be found among its records. Since there was
no showing as to the exact date of receipt of defendant-appellee of the said decision, the
running of the period of 15 days within which to file a motion for new trial did not begin to
run. Therefore, the filing of defendant-appellee of a motion for partial new trial on
December 16, 1998 was never delayed but timely filed thus preventing the decision dated
November 25, 1998 from attaining finality as against them. Moreover, We find the
admission of defendant-appellee in its brief filed on June 2, 2005, that it received a copy
of the trial court's decision on December 1, 1998, sufficient to comply with the requirement
of a written admission of a party served with a judgment as provided in Sec. 13 of Rule
13, of the Rules of Civil Procedure. It should also be noted that the certification issued by
Edgar Allan C. Morante, the acting clerk of court, as to the finality of judgment as of
December 11, 1998 will not stand against defendant-appellee because the 15-day period
to file an appeal will only start to commence upon the receipt of the decision which is on
December 1, 1998. Counting the 15-day period from the first of December, the period
within which to file an appeal will expire on December 16, 1998. Thus, the trial court did
not err in granting the motion for partial new trial of the defendant-appellee as the same
was amply filed with the reglementary period prescribed by law.
Having settled that the motion for partial new trial was timely filed, We now rule that the
trial court did not lose its jurisdiction when it conducted subsequent proceedings
determining just compensation and later on directed plaintiff-appellant to pay additional
just compensation in the amount of P1,905,600.00 for the building of defendant-appellee.
476
Lastly, as to the argument of plaintiff-appellant that the award of additional just

compensation for the building of defendant-appellee is erroneous and without legal basis
because the building was never taken by the government in the expropriation proceeding
conducted by the trial court nor was it affected by the construction of the Zapote-Alabang
Flyover, We find the ruling of Republic of the Philippines through the DPWH vs. CA and
Rosario R. Reyes appropriate to apply in this case, to wit: TcEAIH
Petitioner contends that no consequential damages may be awarded as the remaining lot
was not "actually taken" by the DPWH, and to award consequential damages for the lot
which was retained by the owner is tantamount to unjust enrichment on the part of the
latter.
Petitioner's contention is unmeritorious.
No actual taking of the remaining portion of the real property is necessary to grant
consequential damages. If as a result of the expropriation made by petitioner, the
remaining lot (i.e., the 297-square meter lot) of private respondent suffers from an
impairment or decrease in value, consequential damages may be awarded to private
respondent.
WHEREFORE, in view of the foregoing considerations, the instant appeal is hereby
DISMISSED. The assailed order of the Regional Trial Court of Las Pias, Branch 275
dated February 3, 2003 is AFFIRMED in toto. 39 (Emphasis and underscoring supplied;
italicization in the original.)
Petitioner filed a Motion for Reconsideration. 40 This was denied by the appellate court
in a Resolution dated 06 August 2012. 41
The Issues
The issues for our resolution are: (1) whether the trial court's Decision dated 25 November
1998 had become final and executory before BPI filed its motion for partial new trial; and
(2) whether the award of additional just compensation for BPI's building in the amount
fixed therefor is unfounded and without legal basis.
The Court's Ruling
We find the appeal unmeritorious.
On whether BPI's motion for partial new
trial was filed out of time
Petitioner contends that the trial court's Decision dated 25 November 1998 had already
become final and executory as of 11 December 1998, as stated in the Certification 42
issued by the acting branch clerk of court. On the other hand, BPI asserts that its motion
for partial new trial filed on 16 December 1998 was timely filed because it received a copy
of the Decision on 01 December 1998. aCASEH
Petitioner argues that the Court of Appeals erred in holding that the 25 November 1998
Decision did not become final and executory for BPI on 11 December 1998. It argues that
the appellate court erred in reckoning the 15-day reglementary period from a mere
admission of the date of receipt by BPI. Petitioner further argues that the Certification
issued by the acting branch clerk of the trial court enjoys a presumption of regularity and
that BPI had not been able to overcome the presumption. Both the trial and appellate
courts found that BPI's motion for partial new trial was filed on time.
A perusal of the Certification reveals that it certifies that the 25 November 1998 Decision
had already become final, executory and unappealable as to petitioner:
477
. . . the Decision in this case dated November 25, 1998 has become FINAL, EXECUTORY
and UNAPPEALABLE as of December 11, 1998 considering that the Office of the Solicitor
General failed to file any Notice of Appeal or Motion for Reconsideration despite receipt
of a copy thereof on November 26, 1998.
This certification is being issued upon the request of Atty. Jansen Rodriguez for whatever
legal purpose it may serve. 43 (Emphasis supplied)
There can be no other reading of this certificate that would be supported by the record.
Section 9 of Rule 13 of the Rules of Court states that judgments, final orders or resolutions
shall be served either personally or by registered mail. Section 13 of the same Rule
provides what consists proof of service:
Proof of personal service shall consist of a written admission of the party served, or the
official return of the server, or the affidavit of the party serving, containing a full statement
of the date, place and manner of service. . . . If service is made by registered mail, proof
shall be made by such affidavit and the registry receipt issued by the mailing office. The
registry return card shall be filed immediately upon its receipt by the sender . . . . AaCcST
A careful review of the record shows the absence of any proof that the Decision of 25
November 1998 was served upon BPI. Hence, the Court of Appeals correctly held that
absent any proof of service to BPI of the Decision, the period of 15 days within which to
file its motion for partial new trial did not begin to run against BPI. However, BPI's
admission that it received a copy of the Decision on 01 December 1998 is binding on it,
and was correctly considered by the Court of Appeals as the reckoning date to count the
15-day period.
On whether the award of additional just
compensation and the amount fixed therefor
was unfounded and without legal basis
Eminent domain is the authority and right of the State, as sovereign, to take private
property for public use upon observance of due process of law and payment of just
compensation. 44 The State's power of eminent domain is limited by the constitutional
mandate that private property shall not be taken for public use without just compensation.
45
Just compensation is the full and fair equivalent of the property sought to be expropriated.
46 The general rule is that the just compensation to which the owner of the condemned
property is entitled to is the market value. 47 Market value is that sum of money which a
person desirous but not compelled to buy, and an owner willing but not compelled to sell,
would agree on as a price to be paid by the buyer and received by the seller. The general
rule, however, is modified where only a part of a certain property is expropriated. 48 In
such a case, the owner is not restricted to compensation for the portion actually taken, he
is also entitled to recover the consequential damage, if any, to the remaining part of the
property. 49
In this case, petitioner questions the appellate court's Decision affirming the trial court's
Order of 03 February 2003 granting additional just compensation for consequential
damages for BPI's building. Petitioner contends that BPI's building was "never taken" by
petitioner, and that to award consequential damages for the building was unfounded and
without legal basis. In support of its contention, petitioner relies on the letter dated 12
September 2000 of the DPWH to the Office of the Solicitor General 50 stating that the
proposed sidewalk of 2.50 meters was reduced to 2.35 meters, thus leaving BPI's building
intact.
Petitioner's argument is untenable.
478
No actual taking of the building is necessary to grant consequential damages.

Consequential damages are awarded if as a result of the expropriation, the remaining
property of the owner suffers from an impairment or decrease in value. 51 The rules on
expropriation clearly provide a legal basis for the award of consequential damages.
Section 6 of Rule 67 of the Rules of Court provides:
. . . The commissioners shall assess the consequential damages to the property not taken
and deduct from such consequential damages the consequential benefits to be derived
by the owner from the public use or public purpose of the property taken, the operation of
its franchise by the corporation or the carrying on of the business of the corporation or
person taking the property. But in no case shall the consequential benefits assessed
exceed the consequential damages assessed, or the owner be deprived of the actual
value of his property so taken. EHSTDA
In B.H. Berkenkotter & Co. v. Court of Appeals, 52 we held that:
To determine just compensation, the trial court should first ascertain the market value of
the property, to which should be added the consequential damages after deducting
therefrom the consequential benefits which may arise from the expropriation. If the
consequential benefits exceed the consequential damages, these items should be
disregarded altogether as the basic value of the property should be paid in every case.
We quote with approval the ruling of the Court of Appeals:
Lastly, as to the argument of plaintiff-appellant that the award of additional just
compensation for the building of defendant-appellee is erroneous and without legal basis
because the building was never taken by the government in the expropriation proceeding
conducted by the trial court nor was it affected by the construction of the Zapote-Alabang
Flyover, We find the ruling of Republic of the Philippines through the DPWH vs. CA and
Rosario R. Reyes appropriate to apply in this case, to wit:
Petitioner contends that no consequential damages may be awarded as the remaining lot
was not "actually taken" by the DPWH, and to award consequential damages for the lot
which was retained by the owner is tantamount to unjust enrichment on the part of the
latter.
Petitioner's contention is unmeritorious.
No actual taking of the remaining portion of the real property is necessary to grant
consequential damages. If as a result of the expropriation made by petitioner, the
remaining lot (i.e., the 297-square meter lot) of private respondent suffers from an
impairment or decrease in value, consequential damages may be awarded to private
respondent. 53 (Italicization in the original) cAHIST
Petitioner would also have us review the bases of the courts below in awarding just
compensation for the building for consequential damages. The uniform findings of the trial
court and the appellate court are entitled to the greatest respect. They are binding on the
Court in the absence of a strong showing by petitioner that the courts below erred in
appreciating the established facts and in drawing inferences from such facts. 54 We find
no cogent reason to deviate from this.
The Court would like to stress that there is a stark absence in the records of any proof
that DPWH communicated its amended plan to BPI or to the trial court. On the other hand,
the trial court found that BPI was not notified of the reduction and had relied only on the
DPWH letter dated 12 August 1997 saying that it was not possible to reduce the width of
the sidewalk. Petitioner had actively participated in the expropriation proceedings of the
portion of BPI's lot according to the original plan, the decision for which was promulgated
479
on 25 November 1998. The trial court had also ruled that additional just compensation for
the building was in order in its Decision dated 10 September 1999, from which petitioner
moved for reconsideration but only as to the procedure in the determination of the amount.
Further, the records show that by 07 September 1999, when Officer-in-Charge Agbayani
conducted an ocular inspection, a new building had already been constructed replacing
the old one; whereas the amended plan was communicated by DPWH to the OSG only
in September 2000, when the trial court was constituting anew the Board of
Commissioners to determine the amount of just compensation for the building. The
findings of the lower courts are borne by the records. Hence, there was proper basis for
the determination of just compensation for the building for consequential damages.
WHEREFORE, we DENY the petition. We AFFIRM the Court of Appeals' Decision dated
14 September 2011 and Resolution dated 06 August 2012 in CA-G.R. CV No. 79843.
SO ORDERED.
Brion, Del Castillo, Perez and Perlas-Bernabe, JJ., concur.
||| (Republic v. Bank of the Philippine Islands, G.R. No. 203039, [September 11, 2013])
12. MANILA MEMORIAL VS. DSWD 711 SCRA 302 (2013)
EN BANC
[G.R. No. 175356. December 3, 2013.]
MANILA MEMORIAL PARK, INC. AND LA FUNERARIA PAZ-SUCAT, INC.,
petitioners,vs.SECRETARY OF THE DEPARTMENT OF SOCIAL WELFARE AND
DEVELOPMENT and THE SECRETARY OF THE DEPARTMENT OF FINANCE,
respondents.
DECISION
DEL CASTILLO, J p:
When a party challenges the constitutionality of a law, the burden of proof rests upon him.
1
Before us is a Petition for Prohibition 2 under Rule 65 of the Rules of Court filed by
petitioners Manila Memorial Park, Inc. and La Funeraria Paz-Sucat, Inc., domestic
corporations engaged in the business of providing funeral and burial services, against
public respondents Secretaries of the Department of Social Welfare and Development
(DSWD) and the Department of Finance (DOF).
Petitioners assail the constitutionality of Section 4 of Republic Act (RA) No. 7432, 3 as
amended by RA 9257, 4 and the implementing rules and regulations issued by the DSWD
and DOF insofar as these allow business establishments to claim the 20% discount given
to senior citizens as a tax deduction. TECcHA
Factual Antecedents
On April 23, 1992, RA 7432 was passed into law, granting senior citizens the following
privileges:
the following:
a) the grant of twenty percent (20%) discount from all establishments relative to utilization
of transportation services, hotels and similar lodging establishment[s],restaurants and
recreation centers and purchase of medicine anywhere in the country: Provided, That
private establishments may claim the cost as tax credit;
480
b) a minimum of twenty percent (20%) discount on admission fees charged by theaters,

cinema houses and concert halls, circuses, carnivals and other similar places of culture,
leisure, and amusement;
c) exemption from the payment of individual income taxes: Provided, That their annual
taxable income does not exceed the property level as determined by the National
Economic and Development Authority (NEDA) for that year;
d) exemption from training fees for socioeconomic programs undertaken by the OSCA
as part of its work;
e) free medical and dental services in government establishment[s] anywhere in the
country, subject to guidelines to be issued by the Department of Health, the Government
Service Insurance System and the Social Security System; EaHATD
f) to the extent practicable and feasible, the continuance of the same benefits and
privileges given by the Government Service Insurance System (GSIS),Social Security
System (SSS) and PAG-IBIG, as the case may be, as are enjoyed by those in actual
service.
On August 23, 1993, Revenue Regulations (RR) No. 02-94 was issued to implement RA
7432. Sections 2 (i) and 4 of RR No. 02-94 provide:
Sec. 2. DEFINITIONS. For purposes of these regulations:
i. Tax Credit refers to the amount representing the 20% discount granted to a qualified
senior citizen by all establishments relative to their utilization of transportation services,
hotels and similar lodging establishments, restaurants, drugstores, recreation centers,
theaters, cinema houses, concert halls, circuses, carnivals and other similar places of
culture, leisure and amusement, which discount shall be deducted by the said
establishments from their gross income for income tax purposes and from their gross
sales for value-added tax or other percentage tax purposes.
xxx xxx xxx
Sec. 4.
RECORDING/BOOKKEEPING REQUIREMENTS FOR PRIVATE
ESTABLISHMENTS. Private establishments, i.e.,transport services, hotels and similar
lodging establishments, restaurants, recreation centers, drugstores, theaters, cinema
houses, concert halls, circuses, carnivals and other similar places of culture[,] leisure and
amusement, giving 20% discounts to qualified senior citizens are required to keep
separate and accurate record[s] of sales made to senior citizens, which shall include the
name, identification number, gross sales/receipts, discounts, dates of transactions and
invoice number for every transaction. cISDHE
The amount of 20% discount shall be deducted from the gross income for income tax
purposes and from gross sales of the business enterprise concerned for purposes of the
VAT and other percentage taxes.
In Commissioner of Internal Revenue v. Central Luzon Drug Corporation, 5 the Court
declared Sections 2 (i) and 4 of RR No. 02-94 as erroneous because these contravene
RA 7432, 6 thus:
RA 7432 specifically allows private establishments to claim as tax credit the amount of
discounts they grant. In turn, the Implementing Rules and Regulations, issued pursuant
thereto, provide the procedures for its availment. To deny such credit, despite the plain
mandate of the law and the regulations carrying out that mandate, is indefensible.
First, the definition given by petitioner is erroneous. It refers to tax credit as the amount
representing the 20 percent discount that "shall be deducted by the said establishments
481
from their gross income for income tax purposes and from their gross sales for valueadded tax or other percentage tax purposes." In ordinary business language, the tax
credit represents the amount of such discount. However, the manner by which the
discount shall be credited against taxes has not been clarified by the revenue regulations.
aHcACT
By ordinary acceptation, a discount is an "abatement or reduction made from the gross
amount or value of anything." To be more precise, it is in business parlance "a deduction
or lowering of an amount of money;" or "a reduction from the full amount or value of
something, especially a price." In business there are many kinds of discount, the most
common of which is that affecting the income statement or financial report upon which
the income tax is based.
xxx xxx xxx
Sections 2.i and 4 of Revenue Regulations No. (RR) 2-94 define tax credit as the 20
percent discount deductible from gross income for income tax purposes, or from gross
sales for VAT or other percentage tax purposes. In effect, the tax credit benefit under RA
7432 is related to a sales discount. This contrived definition is improper, considering that
the latter has to be deducted from gross sales in order to compute the gross income in
the income statement and cannot be deducted again, even for purposes of computing the
income tax.
When the law says that the cost of the discount may be claimed as a tax credit, it means
that the amount when claimed shall be treated as a reduction from any tax liability,
plain and simple. The option to avail of the tax credit benefit depends upon the existence
of a tax liability, but to limit the benefit to a sales discount which is not even identical
to the discount privilege that is granted by law does not define it at all and serves no
useful purpose. The definition must, therefore, be stricken down. DcSTaC
Laws Not Amended
by Regulations
Second, the law cannot be amended by a mere regulation. In fact, a regulation that
"operates to create a rule out of harmony with the statute is a mere nullity;" it cannot
prevail.
It is a cardinal rule that courts "will and should respect the contemporaneous construction
placed upon a statute by the executive officers whose duty it is to enforce it ...." In the
scheme of judicial tax administration, the need for certainty and predictability in the
implementation of tax laws is crucial. Our tax authorities fill in the details that "Congress
may not have the opportunity or competence to provide." The regulations these
authorities issue are relied upon by taxpayers, who are certain that these will be followed
by the courts. Courts, however, will not uphold these authorities' interpretations when
clearly absurd, erroneous or improper.
In the present case, the tax authorities have given the term tax credit in Sections 2.i and
4 of RR 2-94 a meaning utterly in contrast to what RA 7432 provides. Their interpretation
has muddled . . . the intent of Congress in granting a mere discount privilege, not a sales
discount. The administrative agency issuing these regulations may not enlarge, alter or
restrict the provisions of the law it administers; it cannot engraft additional requirements
not contemplated by the legislature.
In case of conflict, the law must prevail. A "regulation adopted pursuant to law is law."
Conversely, a regulation or any portion thereof not adopted pursuant to law is no law and
has neither the force nor the effect of law. 7
482
On February 26, 2004, RA 9257 8 amended certain provisions of RA 7432, to wit:

HSCATc
the following:
(a) the grant of twenty percent (20%) discount from all establishments relative to the
utilization of services in hotels and similar lodging establishments, restaurants and
recreation centers, and purchase of medicines in all establishments for the exclusive use
or enjoyment of senior citizens, including funeral and burial services for the death of senior
citizens;
xxx xxx xxx
The establishment may claim the discounts granted under (a),(f),(g) and (h) as tax
deduction based on the net cost of the goods sold or services rendered: Provided, That
the cost of the discount shall be allowed as deduction from gross income for the same
taxable year that the discount is granted. Provided, further, That the total amount of the
claimed tax deduction net of value added tax if applicable, shall be included in their gross
sales receipts for tax purposes and shall be subject to proper documentation and to the
provisions of the National Internal Revenue Code, as amended.
To implement the tax provisions of RA 9257, the Secretary of Finance issued RR No. 42006, the pertinent provision of which provides:
SEC. 8.
AVAILMENT BY ESTABLISHMENTS OF SALES DISCOUNTS AS
DEDUCTION FROM GROSS INCOME. Establishments enumerated in subparagraph
(6) hereunder granting sales discounts to senior citizens on the sale of goods and/or
services specified thereunder are entitled to deduct the said discount from gross income
subject to the following conditions: caIDSH
(1) Only that portion of the gross sales EXCLUSIVELY USED, CONSUMED OR
ENJOYED BY THE SENIOR CITIZEN shall be eligible for the deductible sales discount.
(2) The gross selling price and the sales discount MUST BE SEPARATELY INDICATED
IN THE OFFICIAL RECEIPT OR SALES INVOICE issued by the establishment for the
sale of goods or services to the senior citizen.
(3) Only the actual amount of the discount granted or a sales discount not exceeding
20% of the gross selling price can be deducted from the gross income, net of value added
tax, if applicable, for income tax purposes, and from gross sales or gross receipts of the
business enterprise concerned, for VAT or other percentage tax purposes.
(4) The discount can only be allowed as deduction from gross income for the same
taxable year that the discount is granted.
(5) The business establishment giving sales discounts to qualified senior citizens is
required to keep separate and accurate record[s] of sales, which shall include the name
of the senior citizen, TIN, OSCA ID, gross sales/receipts, sales discount granted, [date]
of [transaction] and invoice number for every sale transaction to senior citizen.
(6) Only the following business establishments which granted sales discount to senior
citizens on their sale of goods and/or services may claim the said discount granted as
deduction from gross income, namely:
xxx xxx xxx
(i) Funeral parlors and similar establishments The beneficiary or any person who shall
shoulder the funeral and burial expenses of the deceased senior citizen shall claim the
483
discount, such as casket, embalmment, cremation cost and other related services for the
senior citizen upon payment and presentation of [his] death certificate. TSEHcA
The DSWD likewise issued its own Rules and Regulations Implementing RA 9257, to wit:
SCEDAI
RULE VI
DISCOUNTS AS TAX DEDUCTION OF ESTABLISHMENTS
Article 8. Tax Deduction of Establishments. The establishment may claim the
discounts granted under Rule V, Section 4 Discounts for Establishments, Section 9,
Medical and Dental Services in Private Facilities and Sections 10 and 11 Air, Sea and
Land Transportation as tax deduction based on the net cost of the goods sold or services
rendered. Provided, That the cost of the discount shall be allowed as deduction from
gross income for the same taxable year that the discount is granted; Provided, further,
That the total amount of the claimed tax deduction net of value added tax if applicable,
shall be included in their gross sales receipts for tax purposes and shall be subject to
proper documentation and to the provisions of the National Internal Revenue Code, as
amended; Provided, finally, that the implementation of the tax deduction shall be subject
to the Revenue Regulations to be issued by the Bureau of Internal Revenue (BIR) and
approved by the Department of Finance (DOF).
Feeling aggrieved by the tax deduction scheme, petitioners filed the present recourse,
praying that Section 4 of RA 7432, as amended by RA 9257, and the implementing rules
and regulations issued by the DSWD and the DOF be declared unconstitutional insofar
as these allow business establishments to claim the 20% discount given to senior citizens
as a tax deduction; that the DSWD and the DOF be prohibited from enforcing the same;
and that the tax credit treatment of the 20% discount under the former Section 4 (a) of RA
7432 be reinstated.
Issues
Petitioners raise the following issues:
A.
WHETHER THE PETITION PRESENTS AN ACTUAL CASE OR CONTROVERSY.
B.
WHETHER SECTION 4 OF REPUBLIC ACT NO. 9257 AND . . . ITS IMPLEMENTING
RULES AND REGULATIONS, INSOFAR AS THEY PROVIDE THAT THE TWENTY
PERCENT (20%) DISCOUNT TO SENIOR CITIZENS MAY BE CLAIMED AS A TAX
DEDUCTION BY THE PRIVATE ESTABLISHMENTS, ARE INVALID AND
UNCONSTITUTIONAL. 9 IaECcH
Petitioners' Arguments
Petitioners emphasize that they are not questioning the 20% discount granted to senior
citizens but are only assailing the constitutionality of the tax deduction scheme prescribed
under RA 9257 and the implementing rules and regulations issued by the DSWD and the
DOF. 10
Petitioners posit that the tax deduction scheme contravenes Article III, Section 9 of the
Constitution, which provides that: "[p]rivate property shall not be taken for public use
without just compensation." 11 In support of their position, petitioners cite Central Luzon
Drug Corporation, 12 where it was ruled that the 20% discount privilege constitutes taking
of private property for public use which requires the payment of just compensation, 13
and Carlos Superdrug Corporation v. Department of Social Welfare and Development, 14
where it was acknowledged that the tax deduction scheme does not meet the definition
of just compensation. 15
484
Petitioners likewise seek a reversal of the ruling in Carlos Superdrug Corporation 16 that
the tax deduction scheme adopted by the government is justified by police power. 17
They assert that "[a]lthough both police power and the power of eminent domain have the
general welfare for their object, there are still traditional distinctions between the two" 18
and that "eminent domain cannot be made less supreme than police power." 19
Petitioners further claim that the legislature, in amending RA 7432, relied on an erroneous
contemporaneous construction that prior payment of taxes is required for tax credit. 20
Petitioners also contend that the tax deduction scheme violates Article XV, Section 4 21
and Article XIII, Section 11 22 of the Constitution because it shifts the State's
constitutional mandate or duty of improving the welfare of the elderly to the private sector.
23 Under the tax deduction scheme, the private sector shoulders 65% of the discount
because only 35% 24 of it is actually returned by the government. 25 Consequently, the
implementation of the tax deduction scheme prescribed under Section 4 of RA 9257
affects the businesses of petitioners. 26 Thus, there exists an actual case or controversy
of transcendental importance which deserves judicious disposition on the merits by the
highest court of the land. 27 DEcSaI
Respondents' Arguments
Respondents, on the other hand, question the filing of the instant Petition directly with the
Supreme Court as this disregards the hierarchy of courts. 28 They likewise assert that
there is no justiciable controversy as petitioners failed to prove that the tax deduction
treatment is not a "fair and full equivalent of the loss sustained" by them. 29 As to the
constitutionality of RA 9257 and its implementing rules and regulations, respondents
contend that petitioners failed to overturn its presumption of constitutionality. 30 More
important, respondents maintain that the tax deduction scheme is a legitimate exercise
of the State's police power. 31
Our Ruling
The Petition lacks merit. EICSDT
There exists an actual case or
controversy.
We shall first resolve the procedural issue.
When the constitutionality of a law is put in issue, judicial review may be availed of only if
the following requisites concur: "(1) the existence of an actual and appropriate case; (2)
the existence of personal and substantial interest on the part of the party raising the
[question of constitutionality];(3) recourse to judicial review is made at the earliest
opportunity; and (4) the [question of constitutionality] is the lis mota of the case." 32
In this case, petitioners are challenging the constitutionality of the tax deduction scheme
provided in RA 9257 and the implementing rules and regulations issued by the DSWD
and the DOF. Respondents, however, oppose the Petition on the ground that there is no
actual case or controversy. We do not agree with respondents.
An actual case or controversy exists when there is "a conflict of legal rights" or "an
assertion of opposite legal claims susceptible of judicial resolution." 33 The Petition must
therefore show that "the governmental act being challenged has a direct adverse effect
on the individual challenging it." 34 In this case, the tax deduction scheme challenged by
petitioners has a direct adverse effect on them. Thus, it cannot be denied that there exists
an actual case or controversy. cTECHI
The validity of the 20% senior citizen
discount and tax deduction scheme
under RA 9257, as an exercise of police
power of the State, has already been
settled in Carlos Superdrug
Corporation.
Petitioners posit that the resolution of this case lies in the determination of whether the
legally mandated 20% senior citizen discount is an exercise of police power or eminent
domain. If it is police power, no just compensation is warranted. But if it is eminent domain,
the tax deduction scheme is unconstitutional because it is not a peso for peso
reimbursement of the 20% discount given to senior citizens. Thus, it constitutes taking of
private property without payment of just compensation.
485
At the outset, we note that this question has been settled in Carlos Superdrug
Corporation. 35 In that case, we ruled:
whereby drugstores will be justly compensated for the discount. HcDATC
9257.
substantial, full and ample. TcHCDI
The Court believes so.
The Senior Citizens Act was enacted primarily to maximize the contribution of senior
citizens to nation-building, and to grant benefits and privileges to them for their
improvement and well-being as the State considers them an integral part of our society.
The priority given to senior citizens finds its basis in the Constitution as set forth in the
law itself. Thus, the Act provides:
SEC. 2. Republic Act No. 7432 is hereby amended to read as follows: TaDSCA
SECTION 1. Declaration of Policies and Objectives. Pursuant to Article XV, Section
4 of the Constitution, it is the duty of the family to take care of its elderly members while
the State may design programs of social security for them. In addition to this, Section 10
486
in the Declaration of Principles and State Policies provides: "The State shall provide social
justice in all phases of national development." Further, Article XIII, Section 11, provides:
"The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available
to all the people at affordable cost. There shall be priority for the needs of the
underprivileged sick, elderly, disabled, women and children." Consonant with these
constitutional principles the following are the declared policies of this Act: DacASC
xxx xxx xxx
(f) To recognize the important role of the private sector in the improvement of the welfare
of senior citizens and to actively seek their partnership.
To implement the above policy, the law grants a twenty percent discount to senior citizens
for medical and dental services, and diagnostic and laboratory fees; admission fees
charged by theaters, concert halls, circuses, carnivals, and other similar places of culture,
leisure and amusement; fares for domestic land, air and sea travel; utilization of services
in hotels and similar lodging establishments, restaurants and recreation centers; and
purchases of medicines for the exclusive use or enjoyment of senior citizens. As a form
of reimbursement, the law provides that business establishments extending the twenty
percent discount to senior citizens may claim the discount as a tax deduction.
The law is a legitimate exercise of police power which, similar to the power of eminent
domain, has general welfare for its object. Police power is not capable of an exact
definition, but has been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough room for an efficient and
flexible response to conditions and circumstances, thus assuring the greatest benefits.
Accordingly, it has been described as "the most essential, insistent and the least limitable
of powers, extending as it does to all the great public needs." It is "[t]he power vested in
the legislature by the constitution to make, ordain, and establish all manner of wholesome
and reasonable laws, statutes, and ordinances, either with penalties or without, not
repugnant to the constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same." HCaIDS
For this reason, when the conditions so demand as determined by the legislature,
property rights must bow to the primacy of police power because property rights, though
sheltered by due process, must yield to general welfare.
Given these, it is incorrect for petitioners to insist that the grant of the senior citizen
discount is unduly oppressive to their business, because petitioners have not taken time
to calculate correctly and come up with a financial report, so that they have not been able
to show properly whether or not the tax deduction scheme really works greatly to their
disadvantage.
In treating the discount as a tax deduction, petitioners insist that they will incur losses
because, referring to the DOF Opinion, for every P1.00 senior citizen discount that
petitioners would give, P0.68 will be shouldered by them as only P0.32 will be refunded
by the government by way of a tax deduction. HIaAED
To illustrate this point, petitioner Carlos Super Drug cited the anti-hypertensive
maintenance drug Norvasc as an example. According to the latter, it acquires Norvasc
487
from the distributors at P37.57 per tablet, and retails it at P39.60 (or at a margin of 5%).If
it grants a 20% discount to senior citizens or an amount equivalent to P7.92, then it would
have to sell Norvasc at P31.68 which translates to a loss from capital of P5.89 per tablet.
Even if the government will allow a tax deduction, only P2.53 per tablet will be refunded
and not the full amount of the discount which is P7.92. In short, only 32% of the 20%
discount will be reimbursed to the drugstores.
Petitioners' computation is flawed. For purposes of reimbursement, the law states that
the cost of the discount shall be deducted from gross income, the amount of income
derived from all sources before deducting allowable expenses, which will result in net
income. Here, petitioners tried to show a loss on a per transaction basis, which should
not be the case. An income statement, showing an accounting of petitioners' sales,
expenses, and net profit (or loss) for a given period could have accurately reflected the
effect of the discount on their income. Absent any financial statement, petitioners cannot
substantiate their claim that they will be operating at a loss should they give the discount.
In addition, the computation was erroneously based on the assumption that their
customers consisted wholly of senior citizens. Lastly, the 32% tax rate is to be imposed
on income, not on the amount of the discount.
Furthermore, it is unfair for petitioners to criticize the law because they cannot raise the
prices of their medicines given the cutthroat nature of the players in the industry. It is a
business decision on the part of petitioners to peg the mark-up at 5%.Selling the
medicines below acquisition cost, as alleged by petitioners, is merely a result of this
decision. Inasmuch as pricing is a property right, petitioners cannot reproach the law for
being oppressive, simply because they cannot afford to raise their prices for fear of losing
their customers to competition. DIETHS
utilities, continuously serve as . . . reminder[s] that the right to property can be relinquished
upon the command of the State for the promotion of public good.
Without sufficient proof that Section 4 (a) of R.A. No. 9257 is arbitrary, and that the
petitioners, the Court will refrain from quashing a legislative act. 36 (Bold in the original;
underline supplied)
We, thus, found that the 20% discount as well as the tax deduction scheme is a valid
exercise of the police power of the State. ATcaEH
No compelling reason has been
proffered to overturn, modify or
abandon the ruling in Carlos
Superdrug Corporation.
Petitioners argue that we have previously ruled in Central Luzon Drug Corporation 37 that
the 20% discount is an exercise of the power of eminent domain, thus, requiring the
payment of just compensation. They urge us to re-examine our ruling in Carlos Superdrug
488
Corporation 38 which allegedly reversed the ruling in Central Luzon Drug Corporation. 39
They also point out that Carlos Superdrug Corporation 40 recognized that the tax
deduction scheme under the assailed law does not provide for sufficient just
compensation.
We agree with petitioners' observation that there are statements in Central Luzon Drug
Corporation 41 describing the 20% discount as an exercise of the power of eminent
domain, viz.:
[T]he privilege enjoyed by senior citizens does not come directly from the State, but rather
from the private establishments concerned. Accordingly, the tax credit benefit granted to
these establishments can be deemed as their just compensation for private property
taken by the State for public use.
The concept of public use is no longer confined to the traditional notion of use by the
public, but held synonymous with public interest, public benefit, public welfare,and public
convenience.The discount privilege to which our senior citizens are entitled is actually a
benefit enjoyed by the general public to which these citizens belong. The discounts given
would have entered the coffers and formed part of the gross sales of the private
establishments concerned, were it not for RA 7432. The permanent reduction in their total
revenues is a forced subsidy corresponding to the taking of private property for public use
or benefit. HDTcEI
As a result of the 20 percent discount imposed by RA 7432, respondent becomes entitled
to a just compensation.This term refers not only to the issuance of a tax credit certificate
indicating the correct amount of the discounts given, but also to the promptness in its
release. Equivalent to the payment of property taken by the State, such issuance when
not done within a reasonable time from the grant of the discounts cannot be considered
as just compensation.In effect, respondent is made to suffer the consequences of being
immediately deprived of its revenues while awaiting actual receipt, through the certificate,
of the equivalent amount it needs to cope with the reduction in its revenues.
Besides, the taxation power can also be used as an implement for the exercise of the
power of eminent domain. Tax measures are but "enforced contributions exacted on pain
of penal sanctions" and "clearly imposed for a public purpose." In recent years, the power
to tax has indeed become a most effective tool to realize social justice, public welfare,and
the equitable distribution of wealth.
While it is a declared commitment under Section 1 of RA 7432, social justice "cannot be
invoked to trample on the rights of property owners who under our Constitution and laws
are also entitled to protection. The social justice consecrated in our [C]onstitution [is] not
intended to take away rights from a person and give them to another who is not entitled
thereto." For this reason, a just compensation for income that is taken away from
respondent becomes necessary. It is in the tax credit that our legislators find support to
realize social justice, and no administrative body can alter that fact. DHESca
To put it differently, a private establishment that merely breaks even without the
discounts yet will surely start to incur losses because of such discounts. The same
effect is expected if its mark-up is less than 20 percent, and if all its sales come from retail
purchases by senior citizens. Aside from the observation we have already raised earlier,
it will also be grossly unfair to an establishment if the discounts will be treated merely as
deductions from either its gross income or its gross sales.Operating at a loss through no
fault of its own, it will realize that the tax credit limitation under RR 2-94 is inutile, if not
improper. Worse, profit-generating businesses will be put in a better position if they avail
themselves of tax credits denied those that are losing, because no taxes are due from the
latter. 42 (Italics in the original; emphasis supplied)
The above was partly incorporated in our ruling in Carlos Superdrug Corporation 43 when
we stated preliminarily that
489
whereby drugstores will be justly compensated for the discount. STEacI
9257.
substantial, full and ample.
The Court believes so. 44 TaEIAS
This, notwithstanding, we went on to rule in Carlos Superdrug Corporation 45 that the
20% discount and tax deduction scheme is a valid exercise of the police power of the
State.
The present case, thus, affords an opportunity for us to clarify the above-quoted
statements in Central Luzon Drug Corporation 46 and Carlos Superdrug Corporation. 47
First, we note that the above-quoted disquisition on eminent domain in Central Luzon
Drug Corporation 48 is obiter dicta and, thus, not binding precedent. As stated earlier, in
Central Luzon Drug Corporation, 49 we ruled that the BIR acted ultra vires when it
effectively treated the 20% discount as a tax deduction, under Sections 2.i and 4 of RR
No. 2-94, despite the clear wording of the previous law that the same should be treated
as a tax credit. We were, therefore, not confronted in that case with the issue as to
whether the 20% discount is an exercise of police power or eminent domain.
Second, although we adverted to Central Luzon Drug Corporation 50 in our ruling in
Carlos Superdrug Corporation, 51 this referred only to preliminary matters. A fair reading
490
of Carlos Superdrug Corporation 52 would show that we categorically ruled therein that
the 20% discount is a valid exercise of police power. Thus, even if the current law, through
its tax deduction scheme (which abandoned the tax credit scheme under the previous
law), does not provide for a peso for peso reimbursement of the 20% discount given by
private establishments, no constitutional infirmity obtains because, being a valid exercise
of police power, payment of just compensation is not warranted.
We have carefully reviewed the basis of our ruling in Carlos Superdrug Corporation 53
and we find no cogent reason to overturn, modify or abandon it. We also note that
petitioners' arguments are a mere reiteration of those raised and resolved in Carlos
Superdrug Corporation. 54 Thus, we sustain Carlos Superdrug Corporation. 55 EAIcCS
Nonetheless, we deem it proper, in what follows, to amplify our explanation in Carlos
Superdrug Corporation 56 as to why the 20% discount is a valid exercise of police power
and why it may not, under the specific circumstances of this case,be considered as an
exercise of the power of eminent domain contrary to the obiter in Central Luzon Drug
Corporation. 57 IaAScD
Police power versus eminent domain.
Police power is the inherent power of the State to regulate or to restrain the use of liberty
and property for public welfare. 58 The only limitation is that the restriction imposed should
be reasonable, not oppressive. 59 In other words, to be a valid exercise of police power,
it must have a lawful subject or objective and a lawful method of accomplishing the goal.
60 Under the police power of the State, "property rights of individuals may be subjected
to restraints and burdens in order to fulfill the objectives of the government." 61 The State
"may interfere with personal liberty, property, lawful businesses and occupations to
promote the general welfare [as long as] the interference [is] reasonable and not
arbitrary." 62 Eminent domain, on the other hand, is the inherent power of the State to
take or appropriate private property for public use. 63 The Constitution, however, requires
that private property shall not be taken without due process of law and the payment of
just compensation. 64
Traditional distinctions exist between police power and eminent domain.
In the exercise of police power, a property right is impaired by regulation, 65 or the use
of property is merely prohibited, regulated or restricted 66 to promote public welfare. In
such cases, there is no compensable taking, hence, payment of just compensation is not
required. Examples of these regulations are property condemned for being noxious or
intended for noxious purposes (e.g., a building on the verge of collapse to be demolished
for public safety, or obscene materials to be destroyed in the interest of public morals) 67
as well as zoning ordinances prohibiting the use of property for purposes injurious to the
health, morals or safety of the community (e.g., dividing a city's territory into residential
and industrial areas). 68 It has, thus, been observed that, in the exercise of police power
(as distinguished from eminent domain), although the regulation affects the right of
ownership, none of the bundle of rights which constitute ownership is appropriated for
use by or for the benefit of the public. 69 HASTCa
On the other hand, in the exercise of the power of eminent domain, property interests are
appropriated and applied to some public purpose which necessitates the payment of just
compensation therefor. Normally, the title to and possession of the property are
transferred to the expropriating authority. Examples include the acquisition of lands for
the construction of public highways as well as agricultural lands acquired by the
government under the agrarian reform law for redistribution to qualified farmer
beneficiaries. However, it is a settled rule that the acquisition of title or total destruction of
the property is not essential for "taking" under the power of eminent domain to be present.
70 Examples of these include establishment of easements such as where the land owner
is perpetually deprived of his proprietary rights because of the hazards posed by electric
transmission lines constructed above his property 71 or the compelled interconnection of
the telephone system between the government and a private company. 72 In these cases,
although the private property owner is not divested of ownership or possession, payment
of just compensation is warranted because of the burden placed on the property for the
use or benefit of the public.
The 20% senior citizen discount is an
491
exercise of police power.

It may not always be easy to determine whether a challenged governmental act is an
exercise of police power or eminent domain. The very nature of police power as elastic
and responsive to various social conditions 73 as well as the evolving meaning and scope
of public use 74 and just compensation 75 in eminent domain evinces that these are not
static concepts. Because of the exigencies of rapidly changing times, Congress may be
compelled to adopt or experiment with different measures to promote the general welfare
which may not fall squarely within the traditionally recognized categories of police power
and eminent domain. The judicious approach, therefore, is to look at the nature and
effects of the challenged governmental act and decide, on the basis thereof, whether the
act is the exercise of police power or eminent domain. Thus, we now look at the nature
and effects of the 20% discount to determine if it constitutes an exercise of police power
or eminent domain. ASHaDT
The 20% discount is intended to improve the welfare of senior citizens who, at their age,
are less likely to be gainfully employed, more prone to illnesses and other disabilities,
and, thus, in need of subsidy in purchasing basic commodities. It may not be amiss to
mention also that the discount serves to honor senior citizens who presumably spent the
productive years of their lives on contributing to the development and progress of the
nation. This distinct cultural Filipino practice of honoring the elderly is an integral part of
this law.
As to its nature and effects, the 20% discount is a regulation affecting the ability of private
establishments to price their products and services relative to a special class of
individuals, senior citizens, for which the Constitution affords preferential concern. 76 In
turn, this affects the amount of profits or income/gross sales that a private establishment
can derive from senior citizens. In other words, the subject regulation affects the pricing,
and, hence, the profitability of a private establishment. However, it does not purport to
appropriate or burden specific properties, used in the operation or conduct of the business
of private establishments, for the use or benefit of the public, or senior citizens for that
matter, but merely regulates the pricing of goods and services relative to, and the amount
of profits or income/gross sales that such private establishments may derive from, senior
citizens. ITEcAD
as police power measures. 77 These laws generally regulate public utilities or
be properly viewed as belonging to the category of price regulatory measures which affect
the profitability of establishments subjected thereto.
On its face, therefore, the subject regulation is a police power measure.
The obiter in Central Luzon Drug Corporation, 78 however, describes the 20% discount
as an exercise of the power of eminent domain and the tax credit, under the previous law,
equivalent to the amount of discount given as the just compensation therefor. The reason
is that (1) the discount would have formed part of the gross sales of the establishment
were it not for the law prescribing the 20% discount, and (2) the permanent reduction in
total revenues is a forced subsidy corresponding to the taking of private property for public
use or benefit. DTEScI
The flaw in this reasoning is in its premise. It presupposes that the subject regulation,
which impacts the pricing and, hence, the profitability of a private establishment,
automatically amounts to a deprivation of property without due process of law. If this were
so, then all price and rate of return on investment control laws would have to be
invalidated because they impact, at some level, the regulated establishment's profits or
492
income/gross sales, yet there is no provision for payment of just compensation. It would
also mean that government cannot set price or rate of return on investment limits, which
reduce the profits or income/gross sales of private establishments, if no just
compensation is paid even if the measure is not confiscatory. The obiter is, thus, at odds
with the settled doctrine that the State can employ police power measures to regulate the
pricing of goods and services, and, hence, the profitability of business establishments in
order to pursue legitimate State objectives for the common good, provided that the
regulation does not go too far as to amount to "taking." 79
In City of Manila v. Laguio, Jr., 80 we recognized that
...a taking also could be found if government regulation of the use of property went "too
far." When regulation reaches a certain magnitude, in most if not in all cases there must
be an exercise of eminent domain and compensation to support the act. While property
may be regulated to a certain extent, if regulation goes too far it will be recognized as a
taking. cHSIAC
No formula or rule can be devised to answer the questions of what is too far and when
regulation becomes a taking. In Mahon,Justice Holmes recognized that it was "a question
of degree and therefore cannot be disposed of by general propositions." On many other
occasions as well, the U.S. Supreme Court has said that the issue of when regulation
constitutes a taking is a matter of considering the facts in each case. The Court asks
whether justice and fairness require that the economic loss caused by public action must
be compensated by the government and thus borne by the public as a whole, or whether
the loss should remain concentrated on those few persons subject to the public action.
81
The impact or effect of a regulation, such as the one under consideration, must, thus, be
determined on a case-to-case basis. Whether that line between permissible regulation
under police power and "taking" under eminent domain has been crossed must, under
the specific circumstances of this case, be subject to proof and the one assailing the
constitutionality of the regulation carries the heavy burden of proving that the measure is
unreasonable, oppressive or confiscatory. The time-honored rule is that the burden of
proving the unconstitutionality of a law rests upon the one assailing it and "the burden
becomes heavier when police power is at issue." 82
The 20% senior citizen discount has not
been shown to be unreasonable,
oppressive or confiscatory.
In Alalayan v. National Power Corporation, 83 petitioners, who were franchise holders of
electric plants, challenged the validity of a law limiting their allowable net profits to no
more than 12% per annum of their investments plus two-month operating expenses. In
rejecting their plea, we ruled that, in an earlier case, it was found that 12% is a reasonable
rate of return and that petitioners failed to prove that the aforesaid rate is confiscatory in
view of the presumption of constitutionality. 84 aESHDA
We adopted a similar line of reasoning in Carlos Superdrug Corporation 85 when we ruled
that petitioners therein failed to prove that the 20% discount is arbitrary, oppressive or
confiscatory. We noted that no evidence, such as a financial report, to establish the impact
of the 20% discount on the overall profitability of petitioners was presented in order to
show that they would be operating at a loss due to the subject regulation or that the
continued implementation of the law would be unconscionably detrimental to the business
operations of petitioners. In the case at bar, petitioners proceeded with a hypothetical
computation of the alleged loss that they will suffer similar to what the petitioners in Carlos
Superdrug Corporation 86 did. Petitioners went directly to this Court without first
establishing the factual bases of their claims. Hence, the present recourse must, likewise,
fail.
Because all laws enjoy the presumption of constitutionality, courts will uphold a law's
validity if any set of facts may be conceived to sustain it. 87 On its face, we find that there
are at least two conceivable bases to sustain the subject regulation's validity absent clear
and convincing proof that it is unreasonable, oppressive or confiscatory. Congress may
493
have legitimately concluded that business establishments have the capacity to absorb a
decrease in profits or income/gross sales due to the 20% discount without substantially
affecting the reasonable rate of return on their investments considering (1) not all
customers of a business establishment are senior citizens and (2) the level of its profit
margins on goods and services offered to the general public. Concurrently, Congress may
have, likewise, legitimately concluded that the establishments, which will be required to
extend the 20% discount, have the capacity to revise their pricing strategy so that
whatever reduction in profits or income/gross sales that they may sustain because of
sales to senior citizens, can be recouped through higher mark-ups or from other products
not subject of discounts. As a result, the discounts resulting from sales to senior citizens
will not be confiscatory or unduly oppressive. aESICD
In sum, we sustain our ruling in Carlos Superdrug Corporation 88 that the 20% senior
citizen discount and tax deduction scheme are valid exercises of police power of the State
absent a clear showing that it is arbitrary, oppressive or confiscatory.
Conclusion
In closing, we note that petitioners hypothesize, consistent with our previous
ratiocinations, that the discount will force establishments to raise their prices in order to
compensate for its impact on overall profits or income/gross sales. The general public, or
those not belonging to the senior citizen class, are, thus, made to effectively shoulder the
subsidy for senior citizens. This, in petitioners' view, is unfair.
As already mentioned, Congress may be reasonably assumed to have foreseen this
eventuality. But, more importantly, this goes into the wisdom, efficacy and expediency of
the subject law which is not proper for judicial review. In a way, this law pursues its social
equity objective in a non-traditional manner unlike past and existing direct subsidy
programs of the government for the poor and marginalized sectors of our society. Verily,
Congress must be given sufficient leeway in formulating welfare legislations given the
enormous challenges that the government faces relative to, among others, resource
adequacy and administrative capability in implementing social reform measures which
aim to protect and uphold the interests of those most vulnerable in our society. In the
process, the individual, who enjoys the rights, benefits and privileges of living in a
democratic polity, must bear his share in supporting measures intended for the common
good. This is only fair.
In fine, without the requisite showing of a clear and unequivocal breach of the
Constitution, the validity of the assailed law must be sustained. cSDHEC
Refutation of the Dissent
The main points of Justice Carpio's Dissent may be summarized as follows: (1) the
discussion on eminent domain in Central Luzon Drug Corporation 89 is not obiter dicta;
(2) allowable taking, in police power, is limited to property that is destroyed or placed
outside the commerce of man for public welfare; (3) the amount of mandatory discount is
private property within the ambit of Article III, Section 9 90 of the Constitution; and (4) the
permanent reduction in a private establishment's total revenue, arising from the
mandatory discount, is a taking of private property for public use or benefit, hence, an
exercise of the power of eminent domain requiring the payment of just compensation.
I
We maintain that the discussion on eminent domain in Central Luzon Drug Corporation
91 is obiter dicta.
As previously discussed, in Central Luzon Drug Corporation, 92 the BIR, pursuant to
Sections 2.i and 4 of RR No. 2-94, treated the senior citizen discount in the previous law,
RA 7432, as a tax deduction instead of a tax credit despite the clear provision in that law
which stated
the following:
a) The grant of twenty percent (20%) discount from all establishments relative to
utilization of transportation services, hotels and similar lodging establishment, restaurants
and recreation centers and purchase of medicines anywhere in the country: Provided,
That private establishments may claim the cost as tax credit;(Emphasis supplied)
494
Thus, the Court ruled that the subject revenue regulation violated the law, viz.:
The 20 percent discount required by the law to be given to senior citizens is a tax credit,
not merely a tax deduction from the gross income or gross sale of the establishment
concerned. A tax credit is used by a private establishment only after the tax has been
computed; a tax deduction, before the tax is computed. RA 7432 unconditionally grants
a tax credit to all covered entities. Thus, the provisions of the revenue regulation that
withdraw or modify such grant are void. Basic is the rule that administrative regulations
cannot amend or revoke the law. 93
As can be readily seen, the discussion on eminent domain was not necessary in order to
arrive at this conclusion. All that was needed was to point out that the revenue regulation
contravened the law which it sought to implement. And, precisely, this was done in Central
Luzon Drug Corporation 94 by comparing the wording of the previous law vis- -vis the
revenue regulation; employing the rules of statutory construction; and applying the settled
principle that a regulation cannot amend the law it seeks to implement. IcTEaC
A close reading of Central Luzon Drug Corporation 95 would show that the Court went on
to state that the tax credit "can be deemed" as just compensation only to explain why the
previous law provides for a tax credit instead of a tax deduction. The Court surmised that
the tax credit was a form of just compensation given to the establishments covered by the
20% discount. However, the reason why the previous law provided for a tax credit and
not a tax deduction was not necessary to resolve the issue as to whether the revenue
regulation contravenes the law. Hence, the discussion on eminent domain is obiter dicta.
A court, in resolving cases before it, may look into the possible purposes or reasons that
impelled the enactment of a particular statute or legal provision. However, statements
made relative thereto are not always necessary in resolving the actual controversies
presented before it. This was the case in Central Luzon Drug Corporation 96 resulting in
that unfortunate statement that the tax credit "can be deemed" as just compensation.
This, in turn, led to the erroneous conclusion, by deductive reasoning, that the 20%
discount is an exercise of the power of eminent domain. The Dissent essentially adopts
this theory and reasoning which, as will be shown below, is contrary to settled principles
in police power and eminent domain analysis.
II
The Dissent discusses at length the doctrine on "taking" in police power which occurs
when private property is destroyed or placed outside the commerce of man. Indeed, there
is a whole class of police power measures which justify the destruction of private property
in order to preserve public health, morals, safety or welfare. As earlier mentioned, these
would include a building on the verge of collapse or confiscated obscene materials as
well as those mentioned by the Dissent with regard to property used in violating a criminal
statute or one which constitutes a nuisance. In such cases, no compensation is required.
However, it is equally true that there is another class of police power measures which do
not involve the destruction of private property but merely regulate its use. The minimum
wage law, zoning ordinances, price control laws, laws regulating the operation of motels
and hotels, laws limiting the working hours to eight, and the like would fall under this
category. The examples cited by the Dissent, likewise, fall under this category: Article 157
of the Labor Code, Sections 19 and 18 of the Social Security Law, and Section 7 of the
Pag-IBIG Fund Law. These laws merely regulate or, to use the term of the Dissent, burden
the conduct of the affairs of business establishments. In such cases, payment of just
compensation is not required because they fall within the sphere of permissible police
power measures. The senior citizen discount law falls under this latter category. cIECTH
III
The Dissent proceeds from the theory that the permanent reduction of profits or
income/gross sales, due to the 20% discount, is a "taking" of private property for public
purpose without payment of just compensation.
At the outset, it must be emphasized that petitioners never presented any evidence to
establish that they were forced to suffer enormous losses or operate at a loss due to the
effects of the assailed law. They came directly to this Court and provided a hypothetical
495
computation of the loss they would allegedly suffer due to the operation of the assailed
law. The central premise of the Dissent's argument that the 20% discount results in a
permanent reduction in profits or income/gross sales, or forces a business establishment
to operate at a loss is, thus, wholly unsupported by competent evidence. To be sure, the
Court can invalidate a law which, on its face, is arbitrary, oppressive or confiscatory. 97
But this is not the case here.
In the case at bar, evidence is indispensable before a determination of a constitutional
violation can be made because of the following reasons.
First, the assailed law, by imposing the senior citizen discount, does not take any of the
properties used by a business establishment like, say, the land on which a manufacturing
plant is constructed or the equipment being used to produce goods or services.
Second, rather than taking specific properties of a business establishment, the senior
citizen discount law merely regulates the prices of the goods or services being sold to
senior citizens by mandating a 20% discount. Thus, if a product is sold at P10.00 to the
general public, then it shall be sold at P8.00 (i.e.,P10.00 less 20%) to senior citizens. Note
that the law does not impose at what specific price the product shall be sold, only that a
20% discount shall be given to senior citizens based on the price set by the business
establishment. A business establishment is, thus, free to adjust the prices of the goods
or services it provides to the general public. Accordingly, it can increase the price of the
above product to P20.00 but is required to sell it at P16.00 (i.e.,P20.00 less 20%) to senior
citizens. DaIAcC
Third, because the law impacts the prices of the goods or services of a particular
establishment relative to its sales to senior citizens, its profits or income/gross sales are
affected. The extent of the impact would, however, depend on the profit margin of the
business establishment on a particular good or service. If a product costs P5.00 to
produce and is sold at P10.00, then the profit 98 is P5.00 99 or a profit margin 100 of
50%. 101 Under the assailed law, the aforesaid product would have to be sold at P8.00
to senior citizens yet the business would still earn P3.00 102 or a 30% 103 profit margin.
On the other hand, if the product costs P9.00 to produce and is required to be sold at
P8.00 to senior citizens, then the business would experience a loss of P1.00. 104 But
note that since not all customers of a business establishment are senior citizens, the
business establishment may continue to earn P1.00 from non-senior citizens which, in
turn, can offset any loss arising from sales to senior citizens.
Fourth, when the law imposes the 20% discount in favor of senior citizens, it does not
prevent the business establishment from revising its pricing strategy. By revising its
pricing strategy, a business establishment can recoup any reduction of profits or
income/gross sales which would otherwise arise from the giving of the 20% discount. To
illustrate, suppose A has two customers: X, a senior citizen, and Y, a non-senior citizen.
Prior to the law, A sells his products at P10.00 a piece to X and Y resulting in income/gross
sales of P20.00 (P10.00 + P10.00).With the passage of the law, A must now sell his
product to X at P8.00 (i.e.,P10.00 less 20%) so that his income/gross sales would be
P18.00 (P8.00 + P10.00) or lower by P2.00. To prevent this from happening, A decides
to increase the price of his products to P11.11 per piece. Thus, he sells his product to X
at P8.89 (i.e., P11.11 less 20%) and to Y at P11.11. As a result, his income/gross sales
would still be P20.00 105 (P8.89 + P11.11). The capacity, then, of business
establishments to revise their pricing strategy makes it possible for them not to suffer any
reduction in profits or income/gross sales, or, in the alternative, mitigate the reduction of
their profits or income/gross sales even after the passage of the law. In other words,
business establishments have the capacity to adjust their prices so that they may remain
profitable even under the operation of the assailed law. acADIT
The Dissent, however, states that
The explanation by the majority that private establishments can always increase their
prices to recover the mandatory discount will only encourage private establishments to
adjust their prices upwards to the prejudice of customers who do not enjoy the 20%
discount. It was likewise suggested that if a company increases its prices, despite the
application of the 20% discount, the establishment becomes more profitable than it was
before the implementation of R.A. 7432. Such an economic justification is self-defeating,
496
for more consumers will suffer from the price increase than will benefit from the 20%
discount. Even then, such ability to increase prices cannot legally validate a violation of
the eminent domain clause. 106
But, if it is possible that the business establishment, by adjusting its prices, will suffer no
reduction in its profits or income/gross sales (or suffer some reduction but continue to
operate profitably) despite giving the discount, what would be the basis to strike down the
law? If it is possible that the business establishment, by adjusting its prices, will not be
unduly burdened, how can there be a finding that the assailed law is an unconstitutional
exercise of police power or eminent domain?
That there may be a burden placed on business establishments or the consuming public
as a result of the operation of the assailed law is not, by itself, a ground to declare it
unconstitutional for this goes into the wisdom and expediency of the law. The cost of
most, if not all, regulatory measures of the government on business establishments is
ultimately passed on to the consumers but that, by itself, does not justify the wholesale
nullification of these measures. It is a basic postulate of our democratic system of
government that the Constitution is a social contract whereby the people have
surrendered their sovereign powers to the State for the common good. 107 All persons
may be burdened by regulatory measures intended for the common good or to serve
some important governmental interest, such as protecting or improving the welfare of a
special class of people for which the Constitution affords preferential concern. Indubitably,
the one assailing the law has the heavy burden of proving that the regulation is
unreasonable, oppressive or confiscatory, or has gone "too far" as to amount to a "taking."
Yet, here, the Dissent would have this Court nullify the law without any proof of such
nature. DCIEac
Further, this Court is not the proper forum to debate the economic theories or realities
that impelled Congress to shift from the tax credit to the tax deduction scheme. It is not
within our power or competence to judge which scheme is more or less burdensome to
business establishments or the consuming public and, thereafter, to choose which
scheme the State should use or pursue. The shift from the tax credit to tax deduction
scheme is a policy determination by Congress and the Court will respect it for as long as
there is no showing, as here, that the subject regulation has transgressed constitutional
limitations.
Unavoidably, the lack of evidence constrains the Dissent to rely on speculative and
hypothetical argumentation when it states that the 20% discount is a significant amount
and not a minimal loss (which erroneously assumes that the discount automatically
results in a loss when it is possible that the profit margin is greater than 20% and/or the
pricing strategy can be revised to prevent or mitigate any reduction in profits or
income/gross sales as illustrated above), 108 and not all private establishments make a
20% profit margin (which conversely implies that there are those who make more and,
thus, would not be greatly affected by this regulation). 109
In fine, because of the possible scenarios discussed above, we cannot assume that the
20% discount results in a permanent reduction in profits or income/gross sales, much less
that business establishments are forced to operate at a loss under the assailed law. And,
even if we gratuitously assume that the 20% discount results in some degree of reduction
in profits or income/gross sales, we cannot assume that such reduction is arbitrary,
oppressive or confiscatory. To repeat, there is no actual proof to back up this claim, and
it could be that the loss suffered by a business establishment was occasioned through its
fault or negligence in not adapting to the effects of the assailed law. The law uniformly
applies to all business establishments covered thereunder. There is, therefore, no unjust
discrimination as the aforesaid business establishments are faced with the same
constraints.
The necessity of proof is all the more pertinent in this case because, as similarly observed
by Justice Velasco in his Concurring Opinion,the law has been in operation for over nine
years now. However, the grim picture painted by petitioners on the unconscionable losses
to be indiscriminately suffered by business establishments, which should have led to the
closure of numerous business establishments, has not come to pass. ScaEIT
497
Verily, we cannot invalidate the assailed law based on assumptions and conjectures.
Without adequate proof, the presumption of constitutionality must prevail.
IV
At this juncture, we note that the Dissent modified its original arguments by including a
new paragraph, to wit:
Section 9, Article III of the 1987 Constitution speaks of private property without any
distinction. It does not state that there should be profit before the taking of property is
subject to just compensation. The private property referred to for purposes of taking could
be inherited, donated, purchased, mortgaged, or as in this case, part of the gross sales
of private establishments. They are all private property and any taking should be attended
by corresponding payment of just compensation. The 20% discount granted to senior
citizens belong to private establishments, whether these establishments make a profit or
suffer a loss. In fact, the 20% discount applies to non-profit establishments like country,
social, or golf clubs which are open to the public and not only for exclusive membership.
The issue of profit or loss to the establishments is immaterial. 110
Two things may be said of this argument. HDcaAI
First, it contradicts the rest of the arguments of the Dissent. After it states that the issue
of profit or loss is immaterial, the Dissent proceeds to argue that the 20% discount is not
a minimal loss 111 and that the 20% discount forces business establishments to operate
at a loss. 112 Even the obiter in Central Luzon Drug Corporation, 113 which the Dissent
essentially adopts and relies on, is premised on the permanent reduction of total revenues
and the loss that business establishments will be forced to suffer in arguing that the 20%
discount constitutes a "taking" under the power of eminent domain. Thus, when the
Dissent now argues that the issue of profit or loss is immaterial, it contradicts itself
because it later argues, in order to justify that there is a "taking" under the power of
eminent domain in this case, that the 20% discount forces business establishments to
suffer a significant loss or to operate at a loss.
Second, this argument suffers from the same flaw as the Dissent's original arguments. It
is an erroneous characterization of the 20% discount.
According to the Dissent, the 20% discount is part of the gross sales and, hence, private
property belonging to business establishments. However, as previously discussed, the
20% discount is not private property actually owned and/or used by the business
establishment. It should be distinguished from properties like lands or buildings actually
used in the operation of a business establishment which, if appropriated for public use,
would amount to a "taking" under the power of eminent domain.
Instead, the 20% discount is a regulatory measure which impacts the pricing and, hence,
the profitability of business establishments. At the time the discount is imposed, no
particular property of the business establishment can be said to be "taken." That is, the
State does not acquire or take anything from the business establishment in the way that
it takes a piece of private land to build a public road. While the 20% discount may form
part of the potential profits or income/gross sales 114 of the business establishment, as
similarly characterized by Justice Bersamin in his Concurring Opinion, potential profits or
income/gross sales are not private property, specifically cash or money, already
belonging to the business establishment. They are a mere expectancy because they are
potential fruits of the successful conduct of the business.
Prior to the sale of goods or services, a business establishment may be subject to State
regulations, such as the 20% senior citizen discount, which may impact the level or
amount of profits or income/gross sales that can be generated by such establishment.
For this reason, the validity of the discount is to be determined based on its overall effects
on the operations of the business establishment. DcCEHI
Again, as previously discussed, the 20% discount does not automatically result in a 20%
reduction in profits, or, to align it with the term used by the Dissent, the 20% discount
does not mean that a 20% reduction in gross sales necessarily results. Because (1) the
profit margin of a product is not necessarily less than 20%,(2) not all customers of a
business establishment are senior citizens, and (3) the establishment may revise its
pricing strategy, such reduction in profits or income/gross sales may be prevented or, in
498
the alternative, mitigated so that the business establishment continues to operate

profitably. Thus, even if we gratuitously assume that some degree of reduction in profits
or income/gross sales occurs because of the 20% discount, it does not follow that the
regulation is unreasonable, oppressive or confiscatory because the business
establishment may make the necessary adjustments to continue to operate profitably. No
evidence was presented by petitioners to show otherwise. In fact, no evidence was
presented by petitioners at all.
Justice Leonen, in his Concurring and Dissenting Opinion, characterizes "profits" (or
income/gross sales) as an inchoate right. Another way to view it, as stated by Justice
Velasco in his Concurring Opinion, is that the business establishment merely has a right
to profits. The Constitution adverts to it as the right of an enterprise to a reasonable return
on investment. 115 Undeniably, this right, like any other right, may be regulated under the
police power of the State to achieve important governmental objectives like protecting the
interests and improving the welfare of senior citizens.
It should be noted though that potential profits or income/gross sales are relevant in police
power and eminent domain analyses because they may, in appropriate cases, serve as
an indicia when a regulation has gone "too far" as to amount to a "taking" under the power
of eminent domain. When the deprivation or reduction of profits or income/gross sales is
shown to be unreasonable, oppressive or confiscatory, then the challenged governmental
regulation may be nullified for being a "taking" under the power of eminent domain. In
such a case, it is not profits or income/gross sales which are actually taken and
appropriated for public use. Rather, when the regulation causes an establishment to incur
losses in an unreasonable, oppressive or confiscatory manner, what is actually taken is
capital and the right of the business establishment to a reasonable return on investment.
If the business losses are not halted because of the continued operation of the regulation,
this eventually leads to the destruction of the business and the total loss of the capital
invested therein. But, again, petitioners in this case failed to prove that the subject
regulation is unreasonable, oppressive or confiscatory. ECHSDc
V.
The Dissent further argues that we erroneously used price and rate of return on
investment control laws to justify the senior citizen discount law. According to the Dissent,
only profits from industries imbued with public interest may be regulated because this is
a condition of their franchises. Profits of establishments without franchises cannot be
regulated permanently because there is no law regulating their profits. The Dissent
concludes that the permanent reduction of total revenues or gross sales of business
establishments without franchises is a taking of private property under the power of
eminent domain.
In making this argument, it is unfortunate that the Dissent quotes only a portion of the
ponencia
...116
The above paragraph, in full, states
exorbitant or unreasonable pricing as well as temper. corporate greed by controlling the
499
be properly viewed as belonging to the category of price regulatory measures which
affects the profitability of establishments subjected thereto.(Emphasis supplied)
The point of this paragraph is to simply show that the State has, in the past, regulated
prices and profits of business establishments. In other words, this type of regulatory
measures is traditionally recognized as police power measures so that the senior citizen
discount may be considered as a police power measure as well. What is more, the
substantial distinctions between price and rate of return on investment control laws vis-
-vis the senior citizen discount law provide greater reason to uphold the validity of the
senior citizen discount law. As previously discussed, the ability to adjust prices allows the
establishment subject to the senior citizen discount to prevent or mitigate any reduction
of profits or income/gross sales arising from the giving of the discount. In contrast,
establishments subject to price and rate of return on investment control laws cannot
adjust prices accordingly.
Certainly, there is no intention to say that price and rate of return on investment control
laws are the justification for the senior citizen discount law. Not at all. The justification for
the senior citizen discount law is the plenary powers of Congress. The legislative power
to regulate business establishments is broad and covers a wide array of areas and
subjects. It is well within Congress' legislative powers to regulate the profits or
income/gross sales of industries and enterprises, even those without franchises.For what
are franchises but mere legislative enactments? SaDICE
There is nothing in the Constitution that prohibits Congress from regulating the profits or
income/gross sales of industries and enterprises without franchises. On the contrary, the
social justice provisions of the Constitution enjoin the State to regulate the "acquisition,
ownership, use, and disposition" of property and its increments. 117 This may cover the
regulation of profits or income/gross sales of all businesses, without qualification, to attain
the objective of diffusing wealth in order to protect and enhance the right of all the people
to human dignity. 118 Thus, under the social justice policy of the Constitution, business
establishments may be compelled to contribute to uplifting the plight of vulnerable or
marginalized groups in our society provided that the regulation is not arbitrary, oppressive
or confiscatory, or is not in breach of some specific constitutional limitation.
When the Dissent, therefore, states that the "profits of private establishments which are
non-franchisees cannot be regulated permanently, and there is no such law regulating
their profits permanently," 119 it is assuming what it ought to prove. First, there are laws
which, in effect, permanently regulate profits or income/gross sales of establishments
without franchises, and RA 9257 is one such law. And, second, Congress can regulate
such profits or income/gross sales because, as previously noted, there is nothing in the
Constitution to prevent it from doing so. Here, again, it must be emphasized that
petitioners failed to present any proof to show that the effects of the assailed law on their
operations has been unreasonable, oppressive or confiscatory. SCHATc
The permanent regulation of profits or income/gross sales of business establishments,
even those without franchises, is not as uncommon as the Dissent depicts it to be.
For instance, the minimum wage law allows the State to set the minimum wage of
employees in a given region or geographical area. Because of the added labor costs
arising from the minimum wage, a permanent reduction of profits or income/gross sales
would result, assuming that the employer does not increase the prices of his goods or
services. To illustrate, suppose it costs a company P5.00 to produce a product and it sells
the same at P10.00 with a 50% profit margin. Later, the State increases the minimum
wage. As a result, the company incurs greater labor costs so that it now costs P7.00 to
produce the same product. The profit per product of the company would be reduced to
P3.00 with a profit margin of 30%.The net effect would be the same as in the earlier
500
example of granting a 20% senior citizen discount. As can be seen, the minimum wage
law could, likewise, lead to a permanent reduction of profits. Does this mean that the
minimum wage law should, likewise, be declared unconstitutional on the mere plea that
it results in a permanent reduction of profits? Taking it a step further, suppose the
company decides to increase the price of its product in order to offset the effects of the
increase in labor cost; does this mean that the minimum wage law, following the reasoning
of the Dissent, is unconstitutional because the consuming public is effectively made to
subsidize the wage of a group of laborers, i.e.,minimum wage earners?
The same reasoning can be adopted relative to the examples cited by the Dissent which,
according to it, are valid police power regulations. Article 157 of the Labor Code, Sections
19 and 18 of the Social Security Law, and Section 7 of the Pag-IBIG Fund Law would
effectively increase the labor cost of a business establishment. This would, in turn, be
integrated as part of the cost of its goods or services. Again, if the establishment does not
increase its prices, the net effect would be a permanent reduction in its profits or
income/gross sales. Following the reasoning of the Dissent that "any form of permanent
taking of private property (including profits or income/gross sales) 120 is an exercise of
eminent domain that requires the State to pay just compensation," 121 then these
statutory provisions would, likewise, have to be declared unconstitutional. It does not
matter that these benefits are deemed part of the employees' legislated wages because
the net effect is the same, that is, it leads to higher labor costs and a permanent reduction
in the profits or income/gross sales of the business establishments. 122 HcTEaA
The point then is this most, if not all, regulatory measures imposed by the State on
business establishments impact, at some level, the latter's prices and/or profits or
income/gross sales. 123 If the Court were to sustain the Dissent's theory, then a
wholesale nullification of such measures would inevitably result. The police power of the
State and the social justice provisions of the Constitution would, thus, be rendered
nugatory.
There is nothing sacrosanct about profits or income/gross sales. This, we made clear in
Carlos Superdrug Corporation: 124
xxx xxx xxx
utilities, continuously serve as a reminder that the right to property can be relinquished
upon the command of the State for the promotion of public good. ASIDTa
Without sufficient proof that Section 4(a) of R.A. No. 9257 is arbitrary, and that the
petitioners, the Court will refrain from quashing a legislative act. 125
501
In conclusion, we maintain that the correct rule in determining whether the subject
regulatory measure has amounted to a "taking" under the power of eminent domain is the
one laid down in Alalayan v. National Power Corporation 126 and followed in Carlos
Superdrug Corporation 127 consistent with long standing principles in police power and
eminent domain analysis. Thus, the deprivation or reduction of profits or income/gross
sales must be clearly shown to be unreasonable, oppressive or confiscatory. Under the
specific circumstances of this case, such determination can only be made upon the
presentation of competent proof which petitioners failed to do. A law, which has been in
operation for many years and promotes the welfare of a group accorded special concern
by the Constitution, cannot and should not be summarily invalidated on a mere allegation
that it reduces the profits or income/gross sales of business establishments. cDSaEH
WHEREFORE,the Petition is hereby DISMISSED for lack of merit.
SO ORDERED.
Sereno, C.J.,Abad, Villarama, Jr.,Perez, Mendoza, Reyes and Perlas-Bernabe, JJ.,
concur.
Carpio, J.,see dissenting opinion.
Velasco, Jr., J.,pls. see concurring opinion.
Leonardo-de Castro, J.,C.J., Sereno certifies that J. De Castro left her vote concurring w/
ponencia of J. Del Castillo.
Peralta, J., C.J.,Sereno certifies that J. Peralta left his vote concurring w/ ponencia of J.
Del Castillo.
Bersamin, J.,with concurring opinion.
Leonen, J.,see separate concurring opinion.
||| (Manila Memorial Park, Inc. v. Secretary of Social Welfare and Development, G.R. No.
175356, [December 3, 2013])
Annotation: JUST COMPENSATION IN EMINENT DOMAIN 686 SCRA 869
ANNOTATION
OURS FOR THE TAKING:
JUST COMPENSATION IN EMINENT DOMAIN
By
DAVID ROBERT C. AQUINO, CSEE*
___________________
1. Nature of compensation, p. 871
2. Determination of Value, p. 873
3. Judicial Function, p. 875
___________________
Just compensation sits at the core of every eminent domain proceedings. Rightly so
because without the concept of just compensation, the process of appropriating private
property for public use translates to a tyrannical act by the state devoid of any rule of law.
The case under annotationLand Bank of the Philippines vs. Emiliano Santiago1
provides us with the opportunity to examine this concept of just compensation and how it
snugly fits into the entire scheme of due process.
Yet the concept of just compensation, according to a study made by William Michael
Treanor in his Treatise2The Origins and Original Significance of the Just Compensation
Clause of the Fifth Amendmentwas nowhere to be found in the early constitutions.
According to this scholarly work, the concept of receiving compensation from the state for
502
the taking of ones private property was never an issue and such taking was always
premised on the prerogative of the state for the common good of the manythat property
right could be compromised in order to advance the common good.
For a short while, this policy of non-compensated taking by the state served the public
good. Lands that were not developed by its owners were transferred to those who tilled
or developed it for good use. Most of the time property was taken for use as public roads
which spurred economic and social development at low cost to the government. It was
only through the Vermont charter of 1777, that the concept of just compensation took its
first real constitutional footing. With new focus on private rights, other states followed suit.
This concept thereafter found its way into our fundamental law which was largely copied
from our American counterpart. Note, however, that Section 6 of Article II, of the 1973
Constitution, which is a modified version of the original provision of the 1935 Constitution,
emphasizes the stewardship concept, under which private property is supposed to be
held by the individual only as a trustee for the people in general, who are its real owners.
As a mere steward, the individual must exercise his rights to the property not for his own
exclusive and selfish benefit but for the good of the entire community or nation3 In our
current constitution, it now carries the concept we are now familiarproviding that private
property shall not be taken for public use without just compensation.4
1. Nature of compensation
The power of eminent domain is the inherent right of the State to condemn private
property for public use upon payment of just compensation. Thus, for expropriation to be
valid, the following requirements must be met: (1) the taking must be for public use and
(2) just compensation must be paid to the owner of the private property.5
It is well-settled that the taking of private property by the Governments power of eminent
domain is subject to two mandatory requirements: (1) that it is for a particular public
purpose; and (2) that just compensation be paid to the property owner. These
requirements partake of the nature of implied conditions that should be complied with to
enable the condemnor to keep the property expropriated.6
In expropriation proceedings, just compensation is defined as the full and fair equivalent
of the property taken from its owner by the expropriator. The measure is not the takers
gain, but the owners loss. The word just is used to intensify the meaning of the word
compensation and to convey thereby the idea that the equivalent to be rendered for the
property to be taken shall be real, substantial, full and ample. The constitutional limitation
of just compensation is considered to be a sum equivalent to the market value of the
property, broadly defined as the price fixed by the seller in open market in the usual and
ordinary course of legal action and competition; or the fair value of the property; as
between one who receives and one who desires to sell it, fixed at the time of the actual
taking by the government. The just-ness of the compensation could only be attained by
using reliable and actual data as bases for fixing the value of the condemned property.7
Moreover, the payment of just compensation is the requirement or action needed before
ownership of the appropriated property can rightfully be transferred to the government.
Thus, in the case of Heirs of Deleste vs. Land Bank of the Philippines,8 which dealt with
the emancipation program of the government of tenant-farmers, the High Court had the
occasion to declare that certain requirements must also be complied with, such as
payment of just compensation, before full ownership is vested upon the tenant-farmers.
It further noted that while the law expressly ordered the emancipation of tenant-farmer
and declared that he shall be deemed the owner of a portion of land consisting of a
family-sized farm except that no title to the land owned by him was to be actually issued
to him unless and until he had become a full-fledged member of a duly recognized
farmers cooperative compliance with the prescribed requirements, tenant-farmers have,
at most, an inchoate right over the land they were tilling. In recognition of this, a CLT is
issued to a tenant-farmer to serve as a provisional title of ownership over the landholding
while the lot owner is awaiting full payment of or for as long as the tenant-farmer is an
amortizing owner. This certificate proves inchoate ownership of an agricultural land
primarily devoted to rice and corn production. It is issued in order for the tenant-farmer to
acquire the land he was tilling. It was understood, however, that full payment of the just
compensation also had to be made first, conformably to the constitutional requirement.
503
2. Determination of Value
Just compensation is the fair market value of the property. Fair market value is that sum
of money which a person desirous but not compelled to buy, and an owner willing but not
compelled to sell, would agree on as a price to be given and received therefor.9 Just
compensation is to be ascertained as of the time of the taking which usually coincides
with the commencement of the expropriation proceedings. Where the institution of the
action precedes entry into the property, the just compensation is to be ascertained as of
the time of the filing of the complaint.10 For purposes of just compensation, the fair market
value of an expropriated property is determined by its character and its price at the time
of taking.11
What is illuminating in the case under annotation is that the Supreme Court had the
opportunity to delve into several issues as to the determination of the value and its
attendant concerns. It held that when the agrarian reform process is still incomplete as
the just compensation due the landowner has yet to be settled, such just compensation
should be determined and the process concluded under Republic Act No. 6657. The
ruling it applied in Land Bank of the Philippines v. Natividad was likewise applied in Land
Bank of the Philippines v. Heirs of Angel T. Domingo, when the landowner filed a Petition
for the Determination and Payment of Just Compensation despite his receipt of LBPs
partial payment. The High Court held that since the amount of just compensation to be
paid had yet to be settled, then the agrarian reform process was still incomplete; thus, it
should be completed under Republic Act No. 6657.
Based on the foregoing, when the agrarian reform process is still incomplete as the just
compensation due the land-owner has yet to be settled, such just compensation should
be determined and the process concluded under Republic Act No. 6657. It also declared
under the case being annotated that the interest imposed in case of delay in payments in
agrarian cases is 12% per annum and not 6% as the imposition is in the nature of
damages for delay in payment which in effect makes the obligation on the part of the
government one of forbearance. Moreover, the Court has allowed the grant of interest in
expropriation cases where there is delay in the payment of just compensation. As to the
interest of such amount in the event it is held in deposit, the High Court had the occasion
to state that the owner of the deposited amount is the one entitled to the interest which
accrue thereon.12
As to the efficacy of Republic Act No. 6657, it should be remembered that the High Court
had already resolved this issue and declared that if just compensation is not settled prior
to the passage of this law, it should be computed in accordance with the said law,
although the property was acquired under Presidential Decree No. 27.13 The taking of
private lands under the agrarian reform program partakes of the nature of an expropriation
proceeding.
In computing just compensation for expropriation proceedings, the RTC should take into
consideration the value of the land at the time of taking, not at the time of the rendition of
judgment. The time of taking is the time when the landowner was deprived of the use and
benefit of his property, such as when the title is transferred to the Republic.14 Note,
however, that the Court has also declared in no uncertain terms that R.A. No. 6657 is the
relevant law for determining just compensation after noting several decided cases where
the Court found it more equitable to determine just compensation based on the value of
the property at the time of payment. This was a clear departure from the Courts earlier
stance in Gabatin vs. Land Bank of the Philippines where it declared that the reckoning
period for the determination of just compensation is the time when the land was taken
applying P.D. No. 27 and E.O. No. 228.15
3. Judicial Function
The mandate of just compensation is a judicial function.16
The determination of just compensation is a judicial function; hence, courts cannot be
unduly restricted in their determination thereof. To do so would deprive the courts of their
judicial prerogatives and reduce them to the bureaucratic function of inputting data and
arriving at the valuation. While the courts should be mindful of the different formulae
created by the DAR in arriving at just compensation, they are not strictly bound to adhere
thereto if the situation before them do not warrant it.17
504
Judicial determination is needed to arrive at the exact amount due to the property
owner.18 The valuation of property or determination of just compensation in eminent
domain proceedings is essentially a judicial function which is vested with the courts and
not with the administrative agencies.19 It is also interesting to note that courts may take
judicial notice of a decision or the facts involved in another case tried by the same court
if the parties introduce the same in evidence or the court as a matter of convenience.20
In sum, just compensation is simply the mechanism that prevents the state from
overstepping its constitutional bounds and keeps it at bay from any abuse of its powers.
It ensures that peoples rights in general, and their right to own property in particular are
protected from arbitrary and whimsical taking. That private property may only be taken
subject to the condition that it shall be for a public purpose and with just compensation.
After all, the taking of private property and the deprivation of its rightful owners of the
benefit and use thereof, may only be justified if the taking is for a purpose higher than
individual benefit and comfort. That the taking be for purposes that best serve the greater
good and for a higher purpose. Nor should the government resort to underhanded
methods in order to deprive its citizens of their use of property under the guise of
regulation. As held in one caseprivate property which is not noxious nor intended for
noxious purposes may not, by zoning, be destroyed without compensation. Such principle
finds no support in the principles of justice as we know them. The police powers of local
government units which have always received broad and liberal interpretation cannot be
stretched to cover this particular taking. Distinction should be made between destruction
from necessity and eminent domain.21
o0o
F. EQUAL PROTECTION - Article III, Section 1, 1987 Constitution
1.
Economic Equality
Art. II, Sec. 14
Art. III, Sec. 11 (free access)
Art. VIII, Sec. 5 [5] (legal aid)
Art. XII, Sec. 2 (Marine resources)
o Sec. 10 (nationalization)
Art. XIII, Secs. 1-2 (social justice)
o Sec. 3 (protection to labor)
2.
Political Equality
Art. IX-C, Sec. 10 (discrimination)
Art. XIII, Sec. 1 (social justice)
CASES:
1.
DUMLAO VS. COMELEC 95 SCRA 392 (1980)
EN BANC
[G.R. No. L-52245. January 22, 1980.]
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners,
vs. COMMISSION ON ELECTIONS, respondent.
Raul M . Gonzales for petitioners.
Office of the Solicitor General for respondent.
DECISION
505
MELENCIO-HERRERA, J p:
This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed
by petitioners, in their own behalf and all others allegedly similarly situated, seeking to
enjoin respondent Commission on Elections (COMELEC) from implementing certain
provisions of Batas Pambansa Blg. 51, 52, and 53 for being unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva
Vizcaya, who has filed his certificate of candidacy for said position of Governor in the
forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a
qualified voter and a member of the Bar who, as such, has taken his oath to support the
Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a
taxpayer, a qualified voter, and a resident of San Miguel, Iloilo. cdasia
Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas
Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process
guarantees of the Constitution. Said Section 4 provides:
"Sec. 4. Special Disqualification. In addition to violation of section 10 of Art. XII-C of
the Constitution and disqualification mentioned in existing laws, which are hereby
declared as disqualification for any of the elective officials enumerated in section 1 hereof.
Any retired elective provincial, city of municipal official who has received payment of the
retirement benefits to which he is entitled under the law and who shall have been 65 years
of age at the commencement of the term of office to which he seeks to be elected, shall
not be qualified to run for the same elective local office from which he has retired."
(Paragraphing and emphasis supplied)
Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him,
and that the classification provided therein is based on "purely arbitrary grounds and,
therefore, class legislation."
For their part, petitioners Igot and Salapantan, Jr. assail the validity of the following
statutory provisions:
"Sec. 7. Term of office. Unless sooner removed for cause, all local elective officials
hereinabove mentioned shall hold office for a term of six (6) years. which shall commence
on the first Monday of March 1980."
. . ." Batas Pambansa Blg. 51
"Sec. 4. . . .
"Any person who has committed any act of disloyalty to the State, including acts
amounting to subversion, insurrection, rebellion or other similar crimes, shall not be
qualified to be a candidate for any of the offices covered by this Act, or to participate in
any partisan political activity therein:
provided, that a judgment of conviction for any of the aforementioned crimes shall be
conclusive evidence of such fact and.
the filing of charges for the commission of such crimes before a civil court or military
tribunal after preliminary investigation shall be prima facie evidence of such fact.
". . . (Batas Pambansa Blg. 52) (Paragraphing and emphasis supplied).
"Section 1. Election of certain Local Officials. . . . The election shall be held on January
30, 1980." (Batas Pambansa, Blg. 52).
506
"Section 6. Election and Campaign Period. The election period shall be fixed by the
Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution. The
period of campaign shall commence on December 29, 1979 and terminate on January
28, 1980." (ibid.)
In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also
question the accreditation of some political parties by respondent COMELEC, as
authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section 9(1),
Art. XII(C) of the Constitution, which provides that a "bona fide candidate for any public
office shall be free from any form of harassment and discrimination."
The question of accreditation will not be taken up in this case but in that of Bacalso, et
als., vs. COMELEC et als. (G.R. No. L-52232) where the issue has been squarely raised.
cdasia
Petitioners then pray that the statutory provisions they have challenged be declared null
and void for being violative of the Constitution.
I. The procedural aspect.
At the outset, it should be stated that this Petition suffers from basic procedural infirmities,
hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of
parties and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and
Salapantan. Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden
of their complaint, nor do the latter join Dumlao in his. They, respectively, contest
completely different statutory provisions. Petitioner Dumlao has joined this suit in his
individual capacity as a candidate. The action of petitioners Igot and Salapantan is more
in the nature of a taxpayer's suit. Although petitioners plead time constraints as the reason
of their joint Petition, it would have required only a modicum more of effort for petitioner
Dumlao, on one hand, and petitioners Igot and Salapantan, on the other, to have filed
separate suits, in the interest of orderly procedure.
For another, there are standards that have to be followed in the exercise of the function
of judicial review, 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 (People vs. Vera, 65
Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is, that the
parties have raised the issue of constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination of actual cases
and controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas
Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause
guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from
implementing said provision. Yet, Dumlao has not been adversely affected by the
application of that provision. No petition seeking Dumlao's disqualification has been filed
before the COMELEC. There is no ruling of that constitutional body on the matter, which
this Court is being asked to review on Certiorari. His is a question posed in the abstract,
a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to be
507
"rendered without the benefit of a detailed factual record." Petitioner Dumlao's case is
clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice
Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as
provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which
reads:
"Section 2. The Commission on Elections shall have the following power and functions.
1) . . .
2) Be the sole judge of all contests relating to the elections, returns and qualifications of
all members of the National Assembly and elective provincial and city officials."
(Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:
"Section 11. Any decision, order, or ruling of the Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a
copy thereof."
B. Proper party.
The long-standing rule has been 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" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their
Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied
that neither one has been convicted nor charged with acts of disloyalty to the State, nor
disqualified from being candidates for local elective positions. Neither one of them has
been alleged to have been adversely affected by the operation of the statutory provisions
they assail as unconstitutional. Theirs is a generalized grievance. They have no personal
nor substantial interest at stake. In the absence of any litigate interest, they can claim no
locus standi in seeking judicial redress. LibLex
It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit,
and that the rule enunciated in People vs. Vera, above stated, has been relaxed in
Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus:
". . . it is well settled that the validity of a statute may be contested only by one who will
sustain a direct injury in consequence of its enforcement. Yet, there are many decisions
nullifying, at the instance of taxpayers, laws providing for the disbursement of public
funds, upon the theory that 'the expenditure of public funds, by an officer of the State for
the purpose of administering an unconstitutional act constitutes a misapplication of such
funds,' which may be enjoined at the request of a taxpayer."
In the same vein, it has been held:
"In the determination of the degree of interest essential to give the requisite standing to
attack the constitutionality of a statute, the general rule is that not only persons individually
affected, but also taxpayers have sufficient interest in preventing the illegal expenditure
of moneys raised by taxation and they may, therefore, question the constitutionality of
statutes requiring expenditure of public moneys." (Philippine Constitution Association,
Inc., et als., vs. Gimenez, et als. 15 SCRA 479 [1965]).
508
However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51,
and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public
funds. While, concededly, the elections to be held involve the expenditure of public
moneys, nowhere in their Petition do said petitioners allege that their tax money is "being
extracted and spent in violation of specific constitutional protections against abuses of
legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication
of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110
Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither
do petitioners seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs.
Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15
SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance of
judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]),
speaking through our present Chief Justice, this Court is vested with discretion as to
whether or not a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a well-settled ruled that the
constitutionality of an act of the legislature will not be determined by the courts unless
that question is properly raised an presented in appropriate cases and is necessary to a
determination of the case; i.e., the issue of constitutionality must be the very lis mota
presented."
We have already stated that, by the standards set forth in People vs. Vera, the present is
not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and
Salapantan. They are actually without cause of action. It follows that the necessity for
resolving the issue of constitutionality is absent, and procedural regularity would require
that his suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the challenged provisions, the
Courts not being entirely without discretion in the matter. Thus, adherence to the strict
procedural standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta
(35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion
in the Tinio and Gonzales cases having been penned by our present Chief Justice. The
reasons which have impelled us are the paramount public interest involved and the
proximity of the elections which will be held only a few days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him
personally is belied by the fact that several petitions for the disqualification of other
candidates for local positions based on the challenged provision have already been filed
with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows
Dumlao's contention of intentional or purposeful discrimination. LexLib
The assertion that Section 4 of BP Blg. 52 is contrary to the safeguard of equal protection
is neither well taken. The constitutional guarantee of equal protection of the laws is subject
to rational classification. If the groupings are based on reasonable and real
differentiations, one class can be treated and regulated differently from another class. For
purposes of public service, employees 65 years of age, have been validly classified
differently from younger employees. Employees attaining that age are subject to
compulsory retirement, while those of younger ages are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that candidates
should not be more than 65 years of age at the time they assume office, if applicable to
everyone, might or might not be a reasonable classification although, as the Solicitor
509
General has intimated, a good policy of the law should be to promote the emergence of
younger blood in our political elective echelons. On the other hand, it might be that
persons more than 65 years old may also be good elective local officials.
Coming now to the case of retirees. Retirement from government service may or may not
be a reasonable disqualification for elective local officials. For one thing, there can also
be retirees from government service at ages, say below 65. It may neither be reasonable
to disqualify retirees, aged 65, for a 65-year old retiree could be a good local official just
like one, aged 65, who is not a retiree.
But, in the case of a 65-year old elective local official, who has retired from a provincial,
city or municipal office, there is reason to disqualify him from running for the same office
from which he had retired, as provided for in the challenged provision. The need for new
blood assumes relevance. The tiredness of the retiree for government work is present,
and what is emphatically significant is that the retired employee has already declared
himself tired an unavailable for the same government work, but, which, by virtue of a
change of mind, he would like to assume again. It is for the very reason that inequality
will neither result from the application of the challenged provision. Just as that provision
does not deny equal protection, neither does it permit such denial (see People vs. Vera,
65 Phil. 56 [1933]). Persons similarly situated are similarly treated.
In fine, it bears reiteration that the equal protection clause does not forbid all legal
classification. What is proscribes is a classification which is arbitrary and unreasonable.
That constitutional guarantee is not violated by a reasonable classification is germane to
the purpose of the law and applies to all those belonging to the same class (Peralta vs.
Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v.
Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong,
etc., et al. vs. Hernandez, 101 Phil. 1155 [1957]). The purpose of the law is to allow the
emergence of younger blood in local governments. The classification in question being
pursuant to that purpose, it cannot be considered invalid "even if at times, it may be
susceptible to the objection that it is marred by theoretical inconsistencies: (Chief Justice
Fernando, The Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear invalidity of
the questioned provision. Well accepted is the rule that to justify the nullification of a law,
there must be a clear and unequivocal breach of the Constitution, not a doubtful and
equivocal breach. Courts are practically unanimous in the pronouncement that laws shall
not be declared invalid unless the conflict with the Constitution is clear beyond reasonable
doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair, 4 Dall. 14;
Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the competence
of the legislature to prescribe qualifications for one who desires to become a candidate
for office provided they are reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the second paragraph of
section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenged,
may be divided in two parts. The first provides:
"a judgment of conviction for any of the aforementioned crimes shall be conclusive
evidence of such fact. . . . "
The supremacy of the Constitution stands out as the cardinal principle. We are aware of
the presumption of validity that attached to a challenged statute, of the well-settled
principle that "all reasonable doubts should be resolved in favor of constitutionality," and
that Courts will not set aside a statute as constitutionally defective "except in a clear case."
(People vs. Vera, supra). We are constrained to hold that this in one such clear case.
Cdphil
510
Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall
be presumed innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation,
according to the fundamental law, is not synonymous with guilt. The challenged proviso
contravenes the constitutional presumption of innocence, as a candidate is disqualified
from running from public office on the ground alone that charges have been filed against
him before a civil or military tribunal. It condemns before one is fully heard. In ultimate
effect, except as to the degree of proof, no distinction is made between a person convicted
of acts of disloyalty and one against whom charges have been filed for such acts, as both
of them would be ineligible to run for public office. A person disqualified to run for public
office on the ground that charges have been filed against him is virtually placed in the
same category as a person already convicted of a crime with the penalty of arresto, which
carries with it the accessory penalty of suspension of the right to hold office during the
term of the sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima facie evidence, and
therefore, may be rebutted, yet, there is "clear and present danger" that because the
proximity of the elections, time constraints will prevent one charged with acts of disloyalty
from offering contrary proof to overcome the prima facie evidence against him.
Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the
Courts rather than before an administrative body such as the COMELEC. A highly
possible conflict of finding between two government bodies, to the extreme detriment of
a person charged, will thereby be avoided. Furthermore, a legislative/administrative
determination of guilt should not be allowed to be substituted for a judicial determination.
Being infected with constitutional infirmity, a partial declaration of nullity of only that
objectionable portion is mandated. It is separable from the first portion of the second
paragraph of section 4 of Batas Pambansa Blg. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas Pambansa Bilang 52 is hereby
declared valid. Said paragraph reads:
"SEC. 4. Special disqualification. In addition to violation of Section 10 of Article XII(C)
of the Constitution and disqualifications mentioned in existing laws which are hereby
declared as disqualifications for any of the elective officials enumerated in Section 1
hereof, any retired elective provincial, city or municipal official, who has received payment
of the retirement benefits to which he is entitled under the law and who shall have been
65 years of age at the commencement of the term of office to which he seeks to be
elected, shall not be qualified to run for the same elective local office from which he has
retired."
2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52
providing that ". . . the filing of charges for the commission of such crimes before a civil
court or military tribunal after preliminary investigation shall be prima facie evidence of
such fact", is hereby declared null and void, for being violative of the constitutional
presumption of innocence guaranteed to an accused.
SO ORDERED.
Makasiar, Antonio, Concepcion Jr., Fernandez and Guerrero, JJ ., concur.
De Castro, J ., abstain as far as petitioner Dumlao is concerned.
511
||| (Dumlao v. Commission on Elections, G.R. No. L-52245, [January 22, 1980], 184 PHIL
369-395)
2.
QUINTO VS. COMELEC 606 SCRA 258 (2009)
EN BANC
[G.R. No. 189698. December 1, 2009.]
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., petitioners,vs.COMMISSION
ON ELECTIONS, respondent.
DECISION
NACHURA, J p:
"In our predisposition to discover the 'original intent' of a statute, courts become the
unfeeling pillars of the status quo. Little do we realize that statutes or even constitutions
are bundles of compromises thrown our way by their framers. Unless we exercise
vigilance, the statute may already be out of tune and irrelevant to our day". 1 It is in this
light that we should address the instant case.
Before the Court is a petition for prohibition and certiorari, with prayer for the issuance of
a temporary restraining order and a writ of preliminary injunction, assailing Section 4 (a)
of Resolution No. 8678 of the Commission on Elections (COMELEC).In view of pressing
contemporary events, the petition begs for immediate resolution.
The Antecedents
This controversy actually stems from the law authorizing the COMELEC to use an
automated election system (AES).
On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled "AN
ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED
ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND
IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING
FUNDS THEREFOR AND FOR OTHER PURPOSES". Section 11 thereof reads:
SEC. 11. Official Ballot. The Commission shall prescribe the size and form of the official
ballot which shall contain the titles of the positions to be filled and/or the propositions to
be voted upon in an initiative, referendum or plebiscite. Under each position, the names
of candidates shall be arranged alphabetically by surname and uniformly printed using
the same type size. A fixed space where the chairman of the Board of Election inspectors
shall affix his/her signature to authenticate the official ballot shall be provided. cHCSDa
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later than one hundred
twenty (120) days before the elections: Provided, That, any elective official, whether
national or local, running for any office other than the one which he/she is holding in a
permanent capacity, except for president and vice president, shall be deemed resigned
only upon the start of the campaign period corresponding to the position for which he/she
is running: Provided, further, That, unlawful acts or omissions applicable to a candidate
shall take effect upon the start of the aforesaid campaign period: Provided, finally, That,
for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of
candidacy for the positions of President, Vice President, Senators and candidates under
the Party-List System as well as petitions for registration and/or manifestation to
participate in the Party-List System shall be on February 9, 1998 while the deadline for
the filing of certificate of candidacy for other positions shall be on March 27, 1998.
512
The official ballots shall be printed by the National Printing Office and/or the Bangko
Sentral ng Pilipinas at the price comparable with that of private printers under proper
security measures which the Commission shall adopt. The Commission may contract the
services of private printers upon certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political
parties and deputized citizens' arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure
that the serial number on the ballot stub shall be printed in magnetic ink that shall be
easily detectable by inexpensive hardware and shall be impossible to reproduce on a
photocopying machine and that identification marks, magnetic strips, bar codes and other
technical and security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of
one (1) ballot for every registered voter with a provision of additional four (4) ballots per
precinct. 2
Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting
R.A. No. 9369, entitled "AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED 'AN
ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED
ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND
IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO
ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF
ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS
AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS,
PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES'". Section 13 of the
amendatory law modified Section 11 of R.A. No. 8436, thus: cSaATC
SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:
"Section 15. Official Ballot. The Commission shall prescribe the format of the electronic
display and/or the size and form of the official ballot, which shall contain the titles of the
position to be filled and/or the propositions to be voted upon in an initiative, referendum
or plebiscite. Where practicable, electronic displays must be constructed to present the
names of all candidates for the same position in the same page or screen, otherwise, the
electronic displays must be constructed to present the entire ballot to the voter, in a series
of sequential pages, and to ensure that the voter sees all of the ballot options on all pages
before completing his or her vote and to allow the voter to review and change all ballot
choices prior to completing and casting his or her ballot. Under each position to be filled,
the names of candidates shall be arranged alphabetically by surname and uniformly
indicated using the same type size. The maiden or married name shall be listed in the
official ballot, as preferred by the female candidate. Under each proposition to be vote
upon, the choices should be uniformly indicated using the same font and size.
"A fixed space where the chairman of the board of election inspectors shall affix his/her
signature to authenticate the official ballot shall be provided.
"For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition of registration/manifestation to participate in the election. Any person
who files his certificate of candidacy within this period shall only be considered as a
candidate at the start of the campaign period for which he filed his certificate of candidacy:
Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period: Provided, finally, That any person holding
a public appointive office or position, including active members of the armed forces, and
officers and employees in government-owned or -controlled corporations, shall be
considered ipso facto resigned from his/her office and must vacate the same at the start
of the day of the filing of his/her certificate of candidacy.
513
"Political parties may hold political conventions to nominate their official candidates within
thirty (30) days before the start of the period for filing a certificate of candidacy.
"With respect to a paper-based election system, the official ballots shall be printed by the
National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable
with that of private printers under proper security measures which the Commission shall
adopt. The Commission may contract the services of private printers upon certification by
the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and deputized citizens' arms of the Commission
shall assign watchers in the printing, storage and distribution of official ballots. HEITAD
"To prevent the use of fake ballots, the Commission through the Committee shall ensure
that the necessary safeguards, such as, but not limited to, bar codes, holograms, color
shifting ink, microprinting, are provided on the ballot.
"The official ballots shall be printed and distributed to each city/municipality at the rate of
one ballot for every registered voter with a provision of additional three ballots per
precinct." 3
Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC
issued Resolution No. 8678, 4 the Guidelines on the Filing of Certificates of Candidacy
(CoC) and Nomination of Official Candidates of Registered Political Parties in Connection
with the May 10, 2010 National and Local Elections. Sections 4 and 5 of Resolution No.
8678 provide:
SEC. 4. Effects of Filing Certificates of Candidacy. a) Any person holding a public
appointive office or position including active members of the Armed Forces of the
Philippines, and other officers and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned from his office upon the filing of his
certificate of candidacy.
b) Any person holding an elective office or position shall not be considered resigned upon
the filing of his certificate of candidacy for the same or any other elective office or position.
SEC. 5. Period for filing Certificate of Candidacy. The certificate of candidacy shall be
filed on regular days, from November 20 to 30, 2009, during office hours, except on the
last day, which shall be until midnight.
Alarmed that they will be deemed ipso facto resigned from their offices the moment they
file their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold
appointive positions in the government and who intend to run in the coming elections, 5
filed the instant petition for prohibition and certiorari, seeking the declaration of the aforequoted Section 4 (a) of Resolution No. 8678 as null and void.
The Petitioners' Contention
Petitioners contend that the COMELEC gravely abused its discretion when it issued the
assailed Resolution. They aver that the advance filing of CoCs for the 2010 elections is
intended merely for the purpose of early printing of the official ballots in order to cope with
time limitations. Such advance filing does not automatically make the person who filed
the CoC a candidate at the moment of filing. In fact, the law considers him a candidate
only at the start of the campaign period. Petitioners then assert that this being so, they
should not be deemed ipso facto resigned from their government offices when they file
their CoCs, because at such time they are not yet treated by law as candidates. They
should be considered resigned from their respective offices only at the start of the
campaign period when they are, by law, already considered as candidates. 6 ECaHSI
Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed
COMELEC resolution, contains two conflicting provisions. These must be harmonized or
514
reconciled to give effect to both and to arrive at a declaration that they are not ipso facto
resigned from their positions upon the filing of their CoCs. 7
Petitioners further posit that the provision considering them as ipso facto resigned from
office upon the filing of their CoCs is discriminatory and violates the equal protection
clause in the Constitution. 8
The Respondent's Arguments
On the procedural aspect of the petition, the Office of the Solicitor General
(OSG),representing respondent COMELEC, argues that petitioners have no legal
standing to institute the suit. Petitioners have not yet filed their CoCs, hence, they are not
yet affected by the assailed provision in the COMELEC resolution. The OSG further
claims that the petition is premature or unripe for judicial determination. Petitioners have
admitted that they are merely planning to file their CoCs for the coming 2010 elections.
Their interest in the present controversy is thus merely speculative and contingent upon
the filing of the same. The OSG likewise contends that petitioners availed of the wrong
remedy. They are questioning an issuance of the COMELEC made in the exercise of the
latter's rule-making power. Certiorari under Rule 65 is then an improper remedy. 9
On the substantive aspect, the OSG maintains that the COMELEC did not gravely abuse
its discretion in phrasing Section 4 (a) of Resolution No. 8678 for it merely copied what is
in the law. The OSG, however, agrees with petitioners that there is a conflict in Section
13 of R.A. No. 9369 that should be resolved. According to the OSG, there seems to be
no basis to consider appointive officials as ipso facto resigned and to require them to
vacate their positions on the same day that they file their CoCs, because they are not yet
considered as candidates at that time. Further, this "deemed resigned" provision existed
in Batas Pambansa Bilang (B.P. Blg.) 881, and no longer finds a place in our present
election laws with the innovations brought about by the automated system. 10
Our Ruling
I.
At first glance, the petition suffers from an incipient procedural defect. What petitioners
assail in their petition is a resolution issued by the COMELEC in the exercise of its quasilegislative power. Certiorari under Rule 65, in relation to Rule 64, cannot be availed of,
because it is a remedy to question decisions, resolutions and issuances made in the
exercise of a judicial or quasi-judicial function. 11 Prohibition is also an inappropriate
remedy, because what petitioners actually seek from the Court is a determination of the
proper construction of a statute and a declaration of their rights thereunder. Obviously,
their petition is one for declaratory relief, 12 over which this Court does not exercise
original jurisdiction. 13 aTICAc
However, petitioners raise a challenge on the constitutionality of the questioned
provisions of both the COMELEC resolution and the law. Given this scenario, the Court
may step in and resolve the instant petition.
The transcendental nature and paramount importance of the issues raised and the
compelling state interest involved in their early resolution the period for the filing of
CoCs for the 2010 elections has already started and hundreds of civil servants intending
to run for elective offices are to lose their employment, thereby causing imminent and
irreparable damage to their means of livelihood and, at the same time, crippling the
government's manpower further dictate that the Court must, for propriety, if only from
a sense of obligation, entertain the petition so as to expedite the adjudication of all,
especially the constitutional, issues.
In any event, the Court has ample authority to set aside errors of practice or technicalities
of procedure and resolve the merits of a case. Repeatedly stressed in our prior decisions
is the principle that the Rules were promulgated to provide guidelines for the orderly
administration of justice, not to shackle the hand that dispenses it. Otherwise, the courts
would be consigned to being mere slaves to technical rules, deprived of their judicial
discretion. 14
II.
To put things in their proper perspective, it is imperative that we trace the brief history of
the assailed provision. Section 4 (a) of COMELEC Resolution No. 8678 is a reproduction
515
of the second proviso in the third paragraph of Section 13 of R.A. No. 9369, which for
ready reference is quoted as follows:
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election. Any person
who files his certificate of candidacy within this period shall only be considered as a
candidate at the start of the campaign period for which he filed his certificate of candidacy:
Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period: Provided, finally, That any person holding
a public appointive office or position, including active members of the armed forces, and
officers and employees in government-owned or -controlled corporations, shall be
considered ipso facto resigned from his/her office and must vacate the same at the start
of the day of the filing of his/her certificate of candidacy.15
Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended by
R.A. No. 9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or the Omnibus
Election Code (OEC) of the Philippines, which reads:
Sec. 66. Candidates holding appointive office or position. Any person holding a public
appointive office or position, including active members of the Armed Forces of the
Philippines, and officers and employees in government-owned or controlled corporations,
shall be considered ipso facto resigned from his office upon the filing of his certificate of
candidacy. acCTSE
It may be recalled in inverse chronology that earlier, Presidential Decree No. 1296,
or the 1978 Election Code, contained a similar provision, thus
SECTION 29. Candidates holding appointive office or position. Every person holding
a public appointive office or position, including active members of the Armed Forces of
the Philippines, and officers and employees in government-owned or controlled
corporations, shall ipso facto cease in his office or position on the date he files his
certificate of candidacy. Members of the Cabinet shall continue in the offices they
presently hold notwithstanding the filing of certificate of candidacy, subject to the pleasure
of the President of the Philippines.
Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its Section
23 the following:
SECTION 23. Candidates Holding Appointive Office or Position. Every person holding
a public appointive office or position, including active members of the Armed Forces of
the Philippines and every officer or employee in government-owned or controlled
corporations, shall ipso facto cease in his office or position on the date he files his
certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not
affect whatever civil, criminal or administrative liabilities which he may have incurred.
Going further back in history, R.A. No. 180, or the Revised Election Code approved on
June 21, 1947, also provided that
SECTION 26. Automatic cessation of appointive officers and employees who are
candidates. Every person holding a public appointive office or position shall ipso facto
cease in his office or position on the date he files his certificate of candidacy.
During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled "AN ACT TO
PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF
THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF
REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS
THEREFOR",approved on January 5, 1946, contained, in the last paragraph of its Section
2, the following:
A person occupying any civil office by appointment in the government or any of its political
subdivisions or agencies or government-owned or controlled corporations, whether such
office by appointive or elective, shall be considered to have resigned from such office
from the moment of the filing of such certificate of candidacy.
516
Significantly, however, C.A. No. 666, entitled "AN ACT TO PROVIDE FOR THE FIRST
ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES,
SENATORS, AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, UNDER THE
CONSTITUTION AND THE AMENDMENTS THEREOF", enacted without executive
approval on June 22, 1941, the precursor of C.A. No. 725, only provided for automatic
resignation of elective, but not appointive, officials. cCaDSA
Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938, had, in
its Section 22, the same verbatim provision as Section 26 of R.A. No. 180.
The earliest recorded Philippine law on the subject is Act No. 1582, or the Election Law
enacted by the Philippine Commission in 1907, the last paragraph of Section 29 of which
reads:
Sec. 29. Penalties upon officers. ....
No public officer shall offer himself as a candidate for election, nor shall he be eligible
during the time that he holds said public office to election, at any municipal, provincial or
Assembly election, except for reelection to the position which he may be holding, and no
judge of the Court of First Instance, justice of the peace, provincial fiscal, or officer or
employee of the Bureau of Constabulary or of the Bureau of Education shall aid any
candidate or influence in any manner or take any part in any municipal, provincial, or
Assembly election under penalty of being deprived of his office and being disqualified to
hold any public office whatever for a term of five years: Provided, however, That the
foregoing provisions shall not be construed to deprive any person otherwise qualified of
the right to vote at any election.
From this brief historical excursion, it may be gleaned that the second proviso in the third
paragraph of Section 13 of R.A. No. 9369 that any person holding a public appointive
office or position, including active members of the armed forces, and officers, and
employees in government-owned or controlled corporations, shall be considered ipso
facto resigned from his/her office and must vacate the same at the start of the day of the
filing of his/her certificate of candidacy traces its roots to the period of the American
occupation.
In fact, during the deliberations of Senate Bill No. 2231, the bill later to be consolidated
with House Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard Gordon, the
principal author of the bill, acknowledged that the said proviso in the proposed legislative
measure is an old provision which was merely copied from earlier existing legislation, thus
Senator Osmea.
May I just opine here and perhaps obtain the opinion of the good Sponsor. This reads
like, "ANY PERSON HOLDING [means currently] A PUBLIC APPOINTIVE POSITION.
..SHALL BE CONSIDERED IPSO FACTO RESIGNED" [which means that the prohibition
extends only to appointive officials] "INCLUDING ACTIVE MEMBERS OF THE ARMED
FORCES, OFFICERS AND EMPLOYEES"...This is a prohibition, Mr. President. This
means if one is chairman of SSS or PDIC, he is deemed ipso facto resigned when he files
his certificate of candidacy. Is that the intention?
Senator Gordon.
This is really an old provision, Mr. President.
Senator Osmea.
It is in bold letters, so I think it was a Committee amendment. DAcSIC
Senator Gordon.
517
No, it has always been there.

Senator Osmea.
I see.
Senator Gordon.
I guess the intention is not to give them undue advantage, especially certain people.
Senator Osmea.
All right. 16
In that Senate deliberation, however, Senator Miriam Defensor-Santiago expressed her
concern over the inclusion of the said provision in the new law, given that the same would
be disadvantageous and unfair to potential candidates holding appointive positions, while
it grants a consequent preferential treatment to elective officials, thus
Senator Santiago. On page 15, line 31, I know that this is a losing cause, so I make this
point more as a matter of record than of any feasible hope that it can possibly be either
accepted or if we come to a division of the House, it will be upheld by the majority.
I am referring to page 15, line 21. The proviso begins: "PROVIDED FINALLY, THAT ANY
PERSON HOLDING A PUBLIC APPOINTIVE OFFICE. ..SHALL BE CONSIDERED IPSO
FACTO RESIGNED FROM HIS/HER OFFICE".
The point that I made during the appropriate debate in the past in this Hall is that there is,
for me, no valid reason for exempting elective officials from this inhibition or
disqualification imposed by the law. If we are going to consider appointive officers of the
government, including AFP members and officers of government-owned and controlled
corporations, or any other member of the appointive sector of the civil service, why should
it not apply to the elective sector for, after all, even senators and congressmen are
members of the civil service as well?
Further, it is self-serving for the Senate, or for the Congress in general, to give an
exception to itself which is not available to other similarly situated officials of government.
Of course, the answer is, the reason why we are special is that we are elected. Since we
are imposing a disqualification on all other government officials except ourselves, I think,
it is the better part of delicadeza to inhibit ourselves as well, so that if we want to stay as
senators, we wait until our term expires. But if we want to run for some other elective
office during our term, then we have to be considered resigned just like everybody else.
That is my proposed amendment. But if it is unacceptable to the distinguished Sponsor,
because of sensitivity to the convictions of the rest of our colleagues, I will understand.
Senator Gordon. Mr. President, I think the suggestion is well-thought of. It is a good policy.
However, this is something that is already in the old law which was upheld by the Supreme
court in a recent case that the rider was not upheld and that it was valid. 17
The obvious inequality brought about by the provision on automatic resignation of
appointive civil servants must have been the reason why Senator Recto proposed the
inclusion of the following during the period of amendments: "ANY PERSON WHO FILES
HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE
CONSIDERED AS A CANDIDATE AT THE START OF THE CAMPAIGN PERIOD FOR
WHICH HE FILED HIS COC". 18 The said proviso seems to mitigate the situation of
disadvantage afflicting appointive officials by considering persons who filed their CoCs as
candidates only at the start of the campaign period, thereby, conveying the tacit intent
518
that persons holding appointive positions will only be considered as resigned at the start
of the campaign period when they are already treated by law as candidates.
Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A.
No. 8436 contained a similar provision on automatic resignation of elective officials upon
the filing of their CoCs for any office other than that which they hold in a permanent
capacity or for President or Vice-President. However, with the enactment of R.A. No.
9006, or the Fair Election Act, 19 in 2001, this provision was repealed by Section 14 20
of the said act. There was, thus, created a situation of obvious discrimination against
appointive officials who were deemed ipso facto resigned from their offices upon the filing
of their CoCs, while elective officials were not. EcAHDT
This situation was incidentally addressed by the Court in Farias v. The Executive
Secretary 21 when it ruled that
Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code
pertaining to elective officials gives undue benefit to such officials as against the
appointive ones and violates the equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are characterized by substantial distinctions
that make real differences, one class may be treated and regulated differently from the
other. The Court has explained the nature of the equal protection guarantee in this
manner:
The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination or the oppression of inequality. It is not intended
to prohibit legislation which is limited either in the object to which it is directed or by
territory within which it is to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated alike, under like
circumstances and conditions both as to privileges conferred and liabilities enforced. The
equal protection clause is not infringed by legislation which applies only to those persons
falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall within such
class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The
former occupy their office by virtue of the mandate of the electorate. They are elected to
an office for a definite term and may be removed therefrom only upon stringent conditions.
On the other hand, appointive officials hold their office by virtue of their designation
thereto by an appointing authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure while others serve at the
pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55,
Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative
Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees
in the civil service, are strictly prohibited from engaging in any partisan political activity or
take part in any election except to vote. Under the same provision, elective officials, or
officers or employees holding political offices, are obviously expressly allowed to take part
in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the
legislators deemed it proper to treat these two classes of officials differently with respect
to the effect on their tenure in the office of the filing of the certificates of candidacy for any
519
position other than those occupied by them. Again, it is not within the power of the Court
to pass upon or look into the wisdom of this classification. TEHIaA
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e.,elected officials
vis-a-vis appointive officials, is anchored upon material and significant distinctions and all
the persons belonging under the same classification are similarly treated, the equal
protection clause of the Constitution is, thus, not infringed. 22
However, it must be remembered that the Court, in Farias, was intently focused on the
main issue of whether the repealing clause in the Fair Election Act was a constitutionally
proscribed rider, in that it unwittingly failed to ascertain with stricter scrutiny the impact of
the retention of the provision on automatic resignation of persons holding appointive
positions (Section 66) in the OEC, vis--vis the equal protection clause. Moreover, the
Court's vision in Farias was shrouded by the fact that petitioners therein, Farias et al.,
never posed a direct challenge to the constitutionality of Section 66 of the OEC. Farias
et al. rather merely questioned, on constitutional grounds, the repealing clause, or Section
14 of the Fair Election Act. The Court's afore-quoted declaration inFarias may then very
well be considered as an obiter dictum.
III.
The instant case presents a rare opportunity for the Court, in view of the constitutional
challenge advanced by petitioners, once and for all, to settle the issue of whether the
second proviso in the third paragraph of Section 13 of R.A. No. 9369, a reproduction of
Section 66 of the OEC, which, as shown above, was based on provisions dating back to
the American occupation, is violative of the equal protection clause.
But before delving into the constitutional issue, we shall first address the issues on legal
standing and on the existence of an actual controversy.
Central to the determination of locus standi is the question of whether a party has alleged
such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions. 23 In this case, petitioners
allege that they will be directly affected by COMELEC Resolution No. 8678 for they intend,
and they all have the qualifications, to run in the 2010 elections. The OSG, for its part,
contends that since petitioners have not yet filed their CoCs, they are not yet candidates;
hence, they are not yet directly affected by the assailed provision in the COMELEC
resolution.
The Court, nevertheless, finds that, while petitioners are not yet candidates, they have
the standing to raise the constitutional challenge, simply because they are qualified
voters. A restriction on candidacy, such as the challenged measure herein, affects the
rights of voters to choose their public officials. The rights of voters and the rights of
candidates do not lend themselves to neat separation; laws that affect candidates always
have at least some theoretical, correlative effect on voters. 24 The Court believes that
both candidates and voters may challenge, on grounds of equal protection, the assailed
measure because of its impact on voting rights. 25 DcHSEa
In any event, in recent cases, this Court has relaxed the stringent direct injury test and
has observed a liberal policy allowing ordinary citizens, members of Congress, and civil
organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings. 26
We have also stressed in our prior decisions that the exercise by this Court of judicial
power is limited to the determination and resolution of actual cases and controversies. 27
The Court, in this case, finds that an actual case or controversy exists between the
petitioners and the COMELEC, the body charged with the enforcement and administration
of all election laws. Petitioners have alleged in a precise manner that they would engage
in the very acts that would trigger the enforcement of the provision they would file their
CoCs and run in the 2010 elections. Given that the assailed provision provides for ipso
facto resignation upon the filing of the CoC, it cannot be said that it presents only a
speculative or hypothetical obstacle to petitioners' candidacy. 28
IV.
520
Having hurdled what the OSG posed as obstacles to judicial review, the Court now delves
into the constitutional challenge.
It is noteworthy to point out that the right to run for public office touches on two
fundamental freedoms, those of expression and of association. This premise is best
explained in Mancuso v. Taft, 29 viz.:
Freedom of expression guarantees to the individual the opportunity to write a letter to the
local newspaper, speak out in a public park, distribute handbills advocating radical reform,
or picket an official building to seek redress of grievances. All of these activities are
protected by the First Amendment if done in a manner consistent with a narrowly defined
concept of public order and safety. The choice of means will likely depend on the amount
of time and energy the individual wishes to expend and on his perception as to the most
effective method of projecting his message to the public. But interest and commitment
are evolving phenomena. What is an effective means for protest at one point in time may
not seem so effective at a later date. The dilettante who participates in a picket line may
decide to devote additional time and resources to his expressive activity. As his
commitment increases, the means of effective expression changes, but the expressive
quality remains constant. He may decide to lead the picket line, or to publish the
newspaper. At one point in time he may decide that the most effective way to give
expression to his views and to get the attention of an appropriate audience is to become
a candidate for public office-means generally considered among the most appropriate for
those desiring to effect change in our governmental systems. He may seek to become a
candidate by filing in a general election as an independent or by seeking the nomination
of a political party. And in the latter instance, the individual's expressive activity has two
dimensions: besides urging that his views be the views of the elected public official, he is
also attempting to become a spokesman for a political party whose substantive program
extends beyond the particular office in question. But Cranston has said that a certain type
of its citizenry, the public employee, may not become a candidate and may not engage in
any campaign activity that promotes himself as a candidate for public office. Thus the city
has stifled what may be the most important expression an individual can summon, namely
that which he would be willing to effectuate, by means of concrete public action, were he
to be selected by the voters. aEAcHI
It is impossible to ignore the additional fact that the right to run for office also affects the
freedom to associate. In Williams v. Rhodes, supra, the Court used strict review to
invalidate an Ohio election system that made it virtually impossible for third parties to
secure a place on the ballot. The Court found that the First Amendment protected the
freedom to associate by forming and promoting a political party and that that freedom was
infringed when the state effectively denied a party access to its electoral machinery. The
Cranston charter provision before us also affects associational rights, albeit in a slightly
different way. An individual may decide to join or participate in an organization or political
party that shares his beliefs. He may even form a new group to forward his ideas. And at
some juncture his supporters and fellow party members may decide that he is the ideal
person to carry the group's standard into the electoral fray. To thus restrict the options
available to political organization as the Cranston charter provision has done is to limit
the effectiveness of association; and the freedom to associate is intimately related with
the concept of making expression effective. Party access to the ballot becomes less
meaningful if some of those selected by party machinery to carry the party's programs to
the people are precluded from doing so because those nominees are civil servants.
Whether the right to run for office is looked at from the point of view of individual
expression or associational effectiveness, wide opportunities exist for the individual who
seeks public office. The fact of candidacy alone may open previously closed doors of the
media. The candidate may be invited to discuss his views on radio talk shows; he may be
able to secure equal time on television to elaborate his campaign program; the
newspapers may cover his candidacy; he may be invited to debate before various groups
that had theretofore never heard of him or his views. In short, the fact of candidacy opens
up a variety of communicative possibilities that are not available to even the most diligent
521
of picketers or the most loyal of party followers. A view today, that running for public office
is not an interest protected by the First Amendment, seems to us an outlook stemming
from an earlier era when public office was the preserve of the professional and the
wealthy. Consequently we hold that candidacy is both a protected First Amendment right
and a fundamental interest. Hence any legislative classification that significantly burdens
that interest must be subjected to strict equal protection review. 30 EAISDH
Here, petitioners' interest in running for public office, an interest protected by Sections 4
and 8 of Article III of the Constitution, is breached by the proviso in Section 13 of R.A. No.
9369. It is now the opportune time for the Court to strike down the said proviso for being
violative of the equal protection clause and for being overbroad.
In considering persons holding appointive positions as ipso facto resigned from their posts
upon the filing of their CoCs, but not considering as resigned all other civil servants,
specifically the elective ones, the law unduly discriminates against the first class. The fact
alone that there is substantial distinction between those who hold appointive positions
and those occupying elective posts, does not justify such differential treatment.
In order that there can be valid classification so that a discriminatory governmental act
may pass the constitutional norm of equal protection, it is necessary that the four (4)
requisites of valid classification be complied with, namely:
(1) It must be based upon substantial distinctions;
(2) It must be germane to the purposes of the law;
(3) It must not be limited to existing conditions only; and
(4) It must apply equally to all members of the class.
The first requirement means that there must be real and substantial differences between
the classes treated differently. As illustrated in the fairly recent Mirasol v. Department of
Public Works and Highways, 31 a real and substantial distinction exists between a
motorcycle and other motor vehicles sufficient to justify its classification among those
prohibited from plying the toll ways. Not all motorized vehicles are created equal a twowheeled vehicle is less stable and more easily overturned than a four-wheel vehicle.
Nevertheless, the classification would still be invalid if it does not comply with the second
requirement if it is not germane to the purpose of the law. Justice Isagani A. Cruz
(Ret.),in his treatise on constitutional law, explains,
The classification, even if based on substantial distinctions, will still be invalid if it is not
germane to the purpose of the law. To illustrate, the accepted difference in physical
stamina between men and women will justify the prohibition of the latter from employment
as miners or stevedores or in other heavy and strenuous work. On the basis of this same
classification, however, the law cannot provide for a lower passing average for women in
the bar examinations because physical strength is not the test for admission to the legal
profession. Imported cars may be taxed at a higher rate than locally assembled
automobiles for the protection of the national economy, but their difference in origin is no
justification for treating them differently when it comes to punishing violations of traffic
regulations. The source of the vehicle has no relation to the observance of these rules.
32 DHIaTS
The third requirement means that the classification must be enforced not only for the
present but as long as the problem sought to be corrected continues to exist. And, under
the last requirement, the classification would be regarded as invalid if all the members of
the class are not treated similarly, both as to rights conferred and obligations imposed.
33
Applying the four requisites to the instant case, the Court finds that the differential
treatment of persons holding appointive offices as opposed to those holding elective ones
is not germane to the purposes of the law.
522
The obvious reason for the challenged provision is to prevent the use of a governmental
position to promote one's candidacy, or even to wield a dangerous or coercive influence
on the electorate. The measure is further aimed at promoting the efficiency, integrity, and
discipline of the public service by eliminating the danger that the discharge of official duty
would be motivated by political considerations rather than the welfare of the public. 34
The restriction is also justified by the proposition that the entry of civil servants to the
electoral arena, while still in office, could result in neglect or inefficiency in the
performance of duty because they would be attending to their campaign rather than to
their office work.
If we accept these as the underlying objectives of the law, then the assailed provision
cannot be constitutionally rescued on the ground of valid classification. Glaringly absent
is the requisite that the classification must be germane to the purposes of the law. Indeed,
whether one holds an appointive office or an elective one, the evils sought to be prevented
by the measure remain. For example, the Executive Secretary, or any Member of the
Cabinet for that matter, could wield the same influence as the Vice-President who at the
same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents
were appointed to take charge of national housing, social welfare development, interior
and local government, and foreign affairs).With the fact that they both head executive
offices, there is no valid justification to treat them differently when both file their CoCs for
the elections. Under the present state of our law, the Vice-President, in the example,
running this time, let us say, for President, retains his position during the entire election
period and can still use the resources of his office to support his campaign.
As to the danger of neglect, inefficiency or partisanship in the discharge of the functions
of his appointive office, the inverse could be just as true and compelling. The public officer
who files his certificate of candidacy would be driven by a greater impetus for excellent
performance to show his fitness for the position aspired for.
Mancuso v. Taft, 35 cited above, explains that the measure on automatic resignation,
which restricts the rights of civil servants to run for office a right inextricably linked to
their freedom of expression and association, is not reasonably necessary to the
satisfaction of the state interest. Thus, in striking down a similar measure in the United
States, Mancuso succinctly declares
In proceeding to the second stage of active equal protection review, however, we do see
some contemporary relevance of the Mitchell decision. National Ass'n of Letter Carriers,
supra. In order for the Cranston charter provision to withstand strict scrutiny, the city must
show that the exclusion of all government employees from candidacy is necessary to
achieve a compelling state interest. And, as stated in Mitchell and other cases dealing
with similar statutes, see Wisconsin State Employees, supra; Broadrick, supra,
government at all levels has a substantial interest in protecting the integrity of its civil
service. It is obviously conceivable that the impartial character of the civil service would
be seriously jeopardized if people in positions of authority used their discretion to forward
their electoral ambitions rather than the public welfare. Similarly if a public employee
pressured other fellow employees to engage in corrupt practices in return for promises of
post-election reward, or if an employee invoked the power of the office he was seeking to
extract special favors from his superiors, the civil service would be done irreparable injury.
Conversely, members of the public, fellow-employees, or supervisors might themselves
request favors from the candidate or might improperly adjust their own official behavior
towards him. Even if none of these abuses actually materialize, the possibility of their
occurrence might seriously erode the public's confidence in its public employees. For the
reputation of impartiality is probably as crucial as the impartiality itself; the knowledge that
a clerk in the assessor's office who is running for the local zoning board has access to
confidential files which could provide "pressure" points for furthering his campaign is
destructive regardless of whether the clerk actually takes advantage of his opportunities.
For all of these reasons we find that the state indeed has a compelling interest in
maintaining the honesty and impartiality of its public work force. HTaSEA
We do not, however, consider the exclusionary measure taken by Cranston-a flat
prohibition on office-seeking of all kinds by all kinds of public employees-as even
523
reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out
in Dunn v. Blumstein, "[s]tatutes affecting constitutional rights must be drawn with
'precision'".For three sets of reasons we conclude that the Cranston charter provision
pursues its objective in a far too heavy-handed manner and hence must fall under the
equal protection clause. First, we think the nature of the regulation-a broad prophylactic
rule-may be unnecessary to fulfillment of the city's objective. Second, even granting some
sort of prophylactic rule may be required, the provision here prohibits candidacies for all
types of public office, including many which would pose none of the problems at which
the law is aimed. Third, the provision excludes the candidacies of all types of public
employees, without any attempt to limit exclusion to those employees whose positions
make them vulnerable to corruption and conflicts of interest.
There is thus no valid justification to treat appointive officials differently from the elective
ones. The classification simply fails to meet the test that it should be germane to the
purposes of the law. The measure encapsulated in the second proviso of the third
paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the equal
protection clause.
V.
The challenged provision also suffers from the infirmity of being overbroad.
First, the provision pertains to all civil servants holding appointive posts without distinction
as to whether they occupy high positions in government or not. Certainly, a utility worker
in the government will also be considered as ipso facto resigned once he files his CoC
for the 2010 elections. This scenario is absurd for, indeed, it is unimaginable how he can
use his position in the government to wield influence in the political world.
While it may be admitted that most appointive officials who seek public elective office are
those who occupy relatively high positions in government, laws cannot be legislated for
them alone, or with them alone in mind. For the right to seek public elective office is
universal, open and unrestrained, subject only to the qualification standards prescribed
in the Constitution and in the laws. These qualifications are, as we all know, general and
basic so as to allow the widest participation of the citizenry and to give free rein for the
pursuit of one's highest aspirations to public office. Such is the essence of democracy.
Second, the provision is directed to the activity of seeking any and all public offices,
whether they be partisan or nonpartisan in character, whether they be in the national,
municipal or barangay level. Congress has not shown a compelling state interest to
restrict the fundamental right involved on such a sweeping scale. 36 cCAaHD
Specific evils require specific treatments, not through overly broad measures that unduly
restrict guaranteed freedoms of the citizenry. After all, sovereignty resides in the people,
and all governmental power emanates from them.
Mancuso v. Taft, 37 on this point, instructs
As to approaches less restrictive than a prophylactic rule, there exists the device of the
leave of absence. Some system of leaves of absence would permit the public employee
to take time off to pursue his candidacy while assuring him his old job should his
candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate many
of the opportunities for engaging in the questionable practices that the statute is designed
to prevent. While campaigning, the candidate would feel no conflict between his desire
for election and his publicly entrusted discretion, nor any conflict between his efforts to
persuade the public and his access to confidential documents. But instead of adopting a
reasonable leave of absence policy, Cranston has chosen a provision that makes the
public employee cast off the security of hard-won public employment should he desire to
compete for elected office.
The city might also promote its interest in the integrity of the civil service by enforcing,
through dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict
of interests, bribery, or other forms of official corruption. By thus attacking the problem
directly, instead of using a broad prophylactic rule, the city could pursue its objective
without unduly burdening the First Amendment rights of its employees and the voting
rights of its citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an
524
analogous question when the State of Tennessee asserted that the interest of "ballot box
purity" justified its imposition of one year and three month residency requirements before
a citizen could vote. Justice Marshall stated, inter alia, that Tennessee had available a
number of criminal statutes that could be used to punish voter fraud without unnecessary
infringement on the newcomer's right to vote. Similarly, it appears from the record in this
case that the Cranston charter contains some provisions that might be used against
opportunistic public employees.
Even if some sort of prophylactic rule is necessary, we cannot say that Cranston has put
much effort into tailoring a narrow provision that attempts to match the prohibition with the
problem. The charter forbids a Cranston public employee from running for any office,
anywhere. The prohibition is not limited to the local offices of Cranston, but rather extends
to statewide offices and even to national offices. It is difficult for us to see that a public
employee running for the United States Congress poses quite the same threat to the civil
service as would the same employee if he were running for a local office where the
contacts and information provided by his job related directly to the position he was
seeking, and hence where the potential for various abuses was greater. Nor does the
Cranston charter except the public employee who works in Cranston but aspires to office
in another local jurisdiction, most probably his town of residence. Here again the charter
precludes candidacies which can pose only a remote threat to the civil service. Finally,
the charter does not limit its prohibition to partisan office-seeking, but sterilizes also those
public employees who would seek nonpartisan elective office. The statute reviewed in
Mitchell was limited to partisan political activity, and since that time other courts have
found the partisan-nonpartisan distinction a material one. See Kinnear, supra; Wisconsin
State Employees, supra; Gray v. Toledo, supra. While the line between nonpartisan and
partisan can often be blurred by systems whose true characters are disguised by the
names given them by their architects, it seems clear that the concerns of a truly partisan
office and the temptations it fosters are sufficiently different from those involved in an
office removed from regular party politics to warrant distinctive treatment in a charter of
this sort. ScEaAD
The third and last area of excessive and overinclusive coverage of the Cranston charter
relates not to the type of office sought, but to the type of employee seeking the office. As
Justice Douglas pointed out in his dissent in Mitchell, 330 U.S. at 120-126, 67 S.Ct. 556,
restrictions on administrative employees who either participate in decision-making or at
least have some access to information concerning policy matters are much more
justifiable than restrictions on industrial employees, who, but for the fact that the
government owns the plant they work in, are, for purposes of access to official information,
identically situated to all other industrial workers. Thus, a worker in the Philadelphia mint
could be distinguished from a secretary in an office of the Department of Agriculture; so
also could a janitor in the public schools of Cranston be distinguished from an assistant
comptroller of the same city. A second line of distinction that focuses on the type of
employee is illustrated by the cases of Kinnear and Minielly, supra. In both of these cases
a civil service deputy decided to run for the elected office of sheriff. The courts in both
cases felt that the no-candidacy laws in question were much too broad and indicated that
perhaps the only situation sensitive enough to justify a flat rule was one in which an
inferior in a public office electorally challenged his immediate superior. Given all these
considerations, we think Cranston has not given adequate attention to the problem of
narrowing the terms of its charter to deal with the specific kinds of conflict-of-interest
problems it seeks to avoid.
We also do not find convincing the arguments that after-hours campaigning will drain the
energy of the public employee to the extent that he is incapable of performing his job
effectively and that inevitable on-the-job campaigning and discussion of his candidacy will
disrupt the work of others. Although it is indisputable that the city has a compelling interest
in the performance of official work, the exclusion is not well-tailored to effectuate that
interest. Presumably the city could fire the individual if he clearly shirks his employment
525
responsibilities or disrupts the work of others. Also, the efficiency rationale common to
both arguments is significantly underinclusive. It applies equally well to a number of nonpolitical, extracurricular activities that are not prohibited by the Cranston charter. Finally,
the connection between after-hours campaigning and the state interest seems tenuous;
in many cases a public employee would be able to campaign aggressively and still
continue to do his job well. 38
Incidentally, Clements v. Fashing 39 sustained as constitutional a provision on the
automatic resignation of District Clerks, County Clerks, County Judges, County
Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of Hides and
Animals, County Commissioners, Justices of the Peace, Sheriffs, Assessors and
Collectors of Taxes, District Attorneys, County Attorneys, Public Weighers, and
Constables if they announce their candidacy or if they become candidates in any general,
special or primary election. TCHcAE
In Clements, it may be readily observed that a provision treating differently particular
officials, as distinguished from all others, under a classification that is germane to the
purposes of the law, merits the stamp of approval from American courts. Not, however, a
general and sweeping provision, and more so one violative of the second requisite for a
valid classification, which is on its face unconstitutional.
On a final note, it may not be amiss to state that the Americans, from whom we copied
the provision in question, had already stricken down a similar measure for being
unconstitutional. It is high-time that we, too, should follow suit and, thus, uphold
fundamental liberties over age-old, but barren, restrictions to such freedoms.
WHEREFORE,premises considered, the petition is GRANTED. The second proviso in
the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus
Election Code and Section 4 (a) of COMELEC Resolution No. 8678 are declared as
UNCONSTITUTIONAL.
SO ORDERED.
Corona, Chico-Nazario, Velasco, Jr.,Leonardo-de Castro, Brion, Bersamin, and Del
Castillo, JJ., concur.
Puno, C.J., please see dissent.
Carpio, J., see dissenting opinion.
Carpio Morales, J., see dissenting opinion.
Peralta, Abad and Villarama, Jr., JJ.,join the dissent of C.J. Puno.
||| (Quinto v. Commission on Elections, G.R. No. 189698, [December 1, 2009], 621 PHIL
236-375)
3.
QUINTO VS. COMELEC February 2010 Decision
EN BANC
[G.R. No. 189698. February 22, 2010.]
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., petitioners,vs.COMMISSION
ON ELECTIONS, respondent.
RESOLUTION
PUNO, C.J p:
Upon a careful review of the case at bar, this Court resolves to grant the respondent
Commission on Elections' (COMELEC) motion for reconsideration, and the movantsintervenors' motions for reconsideration-in-intervention, of this Court's December 1, 2009
Decision (Decision). 1
The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar
P. Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional the second
proviso in the third paragraph of Section 13 of Republic Act No. 9369, 2 Section 66 of the
526
Omnibus Election Code 3 and Section 4 (a) of COMELEC Resolution No. 8678, 4 mainly
on the ground that they violate the equal protection clause of the Constitution and suffer
from overbreadth. The assailed Decision thus paved the way for public appointive officials
to continue discharging the powers, prerogatives and functions of their office
notwithstanding their entry into the political arena.
In support of their respective motions for reconsideration, respondent COMELEC and
movants-intervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription
against the participation of public appointive officials and members of the military in
partisan political activity;
(2) The assailed provisions do not violate the equal protection clause when they accord
differential treatment to elective and appointive officials, because such differential
treatment rests on material and substantial distinctions and is germane to the purposes
of the law; cDaEAS
(3) The assailed provisions do not suffer from the infirmity of overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as public safety and
interest demand such reversal.
We find the foregoing arguments meritorious.
I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of the COMELEC's motion
for reconsideration which was filed on December 15, 2009, as well as the propriety of the
motions for reconsideration-in-intervention which were filed after the Court had rendered
its December 1, 2009 Decision.
i. Timeliness of COMELEC's Motion for Reconsideration
Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court, 5 in relation to Section 1,
Rule 52 of the same rules, 6 COMELEC had a period of fifteen days from receipt of notice
of the assailed Decision within which to move for its reconsideration. COMELEC received
notice of the assailed Decision on December 2, 2009, hence, had until December 17,
2009 to file a Motion for Reconsideration.
The Motion for Reconsideration of COMELEC was timely filed. It was filed on December
14, 2009. The corresponding Affidavit of Service (in substitution of the one originally
submitted on December 14, 2009) was subsequently filed on December 17, 2009 still
within the reglementary period.
ii. Propriety of the Motions for Reconsideration-in-Intervention
Section 1, Rule 19 of the Rules of Court provides:
A person who has legal interest in the matter in litigation or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly delay or prejudice the adjudication of
the rights of the original parties, and whether or not the intervenor's rights may be fully
protected in a separate proceeding.
Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be
entertained when the following requisites are satisfied: (1) the would-be intervenor shows
that he has a substantial right or interest in the case; and (2) such right or interest cannot
be adequately pursued and protected in another proceeding. 7 SCIacA
Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within
which a motion for intervention may be filed, viz.:
SECTION 2. Time to intervene. The motion for intervention may be filed at any time
before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall
be attached to the motion and served on the original parties. (italics supplied)
527
This rule, however, is not inflexible. Interventions have been allowed even beyond the
period prescribed in the Rule, when demanded by the higher interest of justice.
Interventions have also been granted to afford indispensable parties, who have not been
impleaded, the right to be heard even after a decision has been rendered by the trial
court, 8 when the petition for review of the judgment has already been submitted for
decision before the Supreme Court, 9 and even where the assailed order has already
become final and executory. 10 In Lim v. Pacquing, 11 the motion for intervention filed by
the Republic of the Philippines was allowed by this Court to avoid grave injustice and
injury and to settle once and for all the substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion for intervention rests on the sound
discretion of the court 12 after consideration of the appropriate circumstances. 13 We
stress again that Rule 19 of the Rules of Court is a rule of procedure whose object is to
make the powers of the court fully and completely available for justice. 14 Its purpose is
not to hinder or delay, but to facilitate and promote the administration of justice. 15
We rule that, with the exception of the IBP-Cebu City Chapter, all the movants-intervenors
may properly intervene in the case at bar.
First, the movants-intervenors have each sufficiently established a substantial right or
interest in the case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the
December 1, 2009 Decision, which nullifies a long established law; as a voter, he has a
right to intervene in a matter that involves the electoral process; and as a public officer,
he has a personal interest in maintaining the trust and confidence of the public in its
system of government.
On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates
in the May 2010 elections running against appointive officials who, in view of the
December 1, 2009 Decision, have not yet resigned from their posts and are not likely to
resign from their posts. They stand to be directly injured by the assailed Decision, unless
it is reversed.
Moreover, the rights or interests of said movants-intervenors cannot be adequately
pursued and protected in another proceeding. Clearly, their rights will be foreclosed if this
Court's Decision attains finality and forms part of the laws of the land.
With regard to the IBP-Cebu City Chapter, it anchors its standing on the assertion that
"this case involves the constitutionality of elections laws for this coming 2010 National
Elections," and that "there is a need for it to be allowed to intervene . . . so that the voice
of its members in the legal profession would also be heard before this Highest Tribunal
as it resolves issues of transcendental importance." 16 SDHacT
Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter
has failed to present a specific and substantial interest sufficient to clothe it with standing
to intervene in the case at bar. Its invoked interest is, in character, too indistinguishable
to justify its intervention.
We now turn to the substantive issues.
II.
Substantive Issues
The assailed Decision struck down Section 4 (a) of Resolution 8678, the second proviso
in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the
Omnibus Election Code, on the following grounds:
(1) They violate the equal protection clause of the Constitution because of the differential
treatment of persons holding appointive offices and those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding
appointive posts: (a) without distinction as to whether or not they occupy high/influential
positions in the government, and (b) they limit these civil servants' activity regardless of
whether they be partisan or nonpartisan in character, or whether they be in the national,
municipal or barangay level; and
528
(3) Congress has not shown a compelling state interest to restrict the fundamental right
of these public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4 (a) of Resolution
8678, Section 66 of the Omnibus Election Code, and the second proviso in the third
paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our
December 1, 2009 Decision.
III.
Section 4 (a) of COMELEC Resolution 8678 Compliant with Law
Section 4 (a) of COMELEC Resolution 8678 is a faithful reflection of the present state of
the law and jurisprudence on the matter, viz.:
Incumbent Appointive Official. Under Section 13 of RA 9369, which reiterates Section
66 of the Omnibus Election Code, any person holding a public appointive office or
position, including active members of the Armed Forces of the Philippines, and officers
and employees in government-owned or -controlled corporations, shall be considered
ipso facto resigned from his office upon the filing of his certificate of candidacy.
Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA 9006
or the Fair Election Act, 17 which repealed Section 67 of the Omnibus Election Code 18
and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected
official as resigned only upon the start of the campaign period corresponding to the
positions for which they are running, 19 an elected official is not deemed to have resigned
from his office upon the filing of his certificate of candidacy for the same or any other
elected office or position. In fine, an elected official may run for another position without
forfeiting his seat. ADEHTS
These laws and regulations implement Section 2 (4), Article IX-B of the 1987 Constitution,
which prohibits civil service officers and employees from engaging in any electioneering
or partisan political campaign.
The intention to impose a strict limitation on the participation of civil service officers and
employees in partisan political campaigns is unmistakable. The exchange between
Commissioner Quesada and Commissioner Foz during the deliberations of the
Constitutional Commission is instructive:
MS. QUESADA.
xxx xxx xxx
Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and
I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in
any partisan political activity." This is almost the same provision as in the 1973
Constitution. However, we in the government service have actually experienced how this
provision has been violated by the direct or indirect partisan political activities of many
government officials.
So, is the Committee willing to include certain clauses that would make this provision
more strict, and which would deter its violation?
MR. FOZ.
Madam President, the existing Civil Service Law and the implementing rules on the
matter are more than exhaustive enough to really prevent officers and employees in the
public service from engaging in any form of partisan political activity. But the problem
really lies in implementation because, if the head of a ministry, and even the superior
officers of offices and agencies of government will themselves violate the constitutional
injunction against partisan political activity, then no string of words that we may add to
what is now here in this draft will really implement the constitutional intent against partisan
political activity. ...20 (italics supplied)
529
To emphasize its importance, this constitutional ban on civil service officers and
employees is presently reflected and implemented by a number of statutes. Section 46
(b) (26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title I, Book V of the
Administrative Code of 1987 respectively provide in relevant part:
Section 44. Discipline: General Provisions:
xxx xxx xxx
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(26) Engaging directly or indirectly in partisan political activities by one holding a nonpolitical office. TCacIE
xxx xxx xxx
Section 55. Political Activity. No officer or employee in the Civil Service including
members of the Armed Forces, shall engage directly or indirectly in any partisan political
activity or take part in any election except to vote nor shall he use his official authority or
influence to coerce the political activity of any other person or body. Nothing herein
provided shall be understood to prevent any officer or employee from expressing his
views on current political problems or issues, or from mentioning the names of his
candidates for public office whom he supports: Provided, That public officers and
employees holding political offices may take part in political and electoral activities but it
shall be unlawful for them to solicit contributions from their subordinates or subject them
to any of the acts involving subordinates prohibited in the Election Code.
Section 261 (i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes
intervention by civil service officers and employees in partisan political activities an
election offense, viz.:
SECTION 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx xxx xxx
(i) Intervention of public officers and employees. Any officer or employee in the civil
service, except those holding political offices; any officer, employee, or member of the
Armed Forces of the Philippines, or any police force, special forces, home defense forces,
barangay self-defense units and all other para-military units that now exist or which may
hereafter be organized who, directly or indirectly, intervenes in any election campaign or
engages in any partisan political activity, except to vote or to preserve public order, if he
is a peace officer.
The intent of both Congress and the framers of our Constitution to limit the participation
of civil service officers and employees in partisan political activities is too plain to be
mistaken.
But Section 2 (4), Article IX-B of the 1987 Constitution and the implementing statutes
apply only to civil servants holding apolitical offices. Stated differently, the constitutional
ban does not cover elected officials, notwithstanding the fact that "[t]he civil service
embraces all branches, subdivisions, instrumentalities, and agencies of the Government,
including government-owned or controlled corporations with original charters." 21 This is
because elected public officials, by the very nature of their office, engage in partisan
political activities almost all year round, even outside of the campaign period. 22 Political
partisanship is the inevitable essence of a political office, elective positions included. 23
The prohibition notwithstanding, civil service officers and employees are allowed to vote,
as well as express their views on political issues, or mention the names of certain
530
candidates for public office whom they support. This is crystal clear from the deliberations
of the Constitutional Commission, viz.:
MS. AQUINO:
Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph
4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase
ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu
thereof substitute the word CAMPAIGN. AaITCS
May I be allowed to explain my proposed amendment?
THE PRESIDING OFFICER (Mr. Treas):
Commissioner Aquino may proceed.
MS. AQUINO:
The draft as presented by the Committee deleted the phrase "except to vote" which was
adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not
intended as a guarantee to the right to vote but as a qualification of the general prohibition
against taking part in elections.
Voting is a partisan political activity. Unless it is explicitly provided for as an exception to
this prohibition, it will amount to disenfranchisement. We know that suffrage, although
plenary, is not an unconditional right. In other words, the Legislature can always pass a
statute which can withhold from any class the right to vote in an election, if public interest
so required. I would only like to reinstate the qualification by specifying the prohibited acts
so that those who may want to vote but who are likewise prohibited from participating in
partisan political campaigns or electioneering may vote.
MR. FOZ:
There is really no quarrel over this point, but please understand that there was no
intention on the part of the Committee to disenfranchise any government official or
employee. The elimination of the last clause of this provision was precisely intended to
protect the members of the civil service in the sense that they are not being deprived of
the freedom of expression in a political contest. The last phrase or clause might have
given the impression that a government employee or worker has no right whatsoever in
an election campaign except to vote, which is not the case. They are still free to express
their views although the intention is not really to allow them to take part actively in a
political campaign. 24
IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and
Section 66 of the Omnibus Election Code Do Not Violate the
Equal Protection Clause
We now hold that Section 4 (a) of Resolution 8678, Section 66 of the Omnibus Election
Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not
violative of the equal protection clause of the Constitution. DcTSHa
i. Farias, et al. v. Executive Secretary, et al. is Controlling
In truth, this Court has already ruled squarely on whether these deemed-resigned
provisions challenged in the case at bar violate the equal protection clause of the
Constitution in Farias, et al. v. Executive Secretary, et al. 25
In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to
Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among
others, that it unduly discriminates against appointive officials. As Section 14 repealed
Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the
531
Omnibus Election Code, elected officials are no longer considered ipso facto resigned
from their respective offices upon their filing of certificates of candidacy. In contrast, since
Section 66 was not repealed, the limitation on appointive officials continues to be
operative they are deemed resigned when they file their certificates of candidacy.
The petitioners in Farias thus brought an equal protection challenge against Section 14,
with the end in view of having the deemed-resigned provisions "apply equally" to both
elected and appointive officials. We held, however, that the legal dichotomy created by
the Legislature is a reasonable classification, as there are material and significant
distinctions between the two classes of officials. Consequently, the contention that
Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus
Election Code, infringed on the equal protection clause of the Constitution, failed muster.
We ruled:
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code
pertaining to elective officials gives undue benefit to such officials as against the
appointive ones and violates the equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are characterized by substantial distinctions
that make real differences, one class may be treated and regulated differently from the
other. The Court has explained the nature of the equal protection guarantee in this
manner:
class and those who do not. ADTEaI
Substantial distinctions clearly exist between elective officials and appointive officials. The
former occupy their office by virtue of the mandate of the electorate. They are elected to
an office for a definite term and may be removed therefrom only upon stringent conditions.
On the other hand, appointive officials hold their office by virtue of their designation
thereto by an appointing authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure while others serve at the
pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55,
Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative
Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees
in the civil service, are strictly prohibited from engaging in any partisan political activity or
take (sic) part in any election except to vote. Under the same provision, elective officials,
or officers or employees holding political offices, are obviously expressly allowed to take
part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the
legislators deemed it proper to treat these two classes of officials differently with respect
to the effect on their tenure in the office of the filing of the certificates of candidacy for any
position other than those occupied by them. Again, it is not within the power of the Court
to pass upon or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials
vis--vis appointive officials, is anchored upon material and significant distinctions and all
532
the persons belonging under the same classification are similarly treated, the equal
protection clause of the Constitution is, thus, not infringed. 26
The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our
assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis
et non quieta movere. This doctrine, which is really "adherence to precedents," mandates
that once a case has been decided one way, then another case involving exactly the
same point at issue should be decided in the same manner. 27 This doctrine is one of
policy grounded on the necessity for securing certainty and stability of judicial decisions.
As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial
Process:
It will not do to decide the same question one way between one set of litigants and the
opposite way between another. "If a group of cases involves the same point, the parties
expect the same decision. It would be a gross injustice to decide alternate cases on
opposite principles. If a case was decided against me yesterday when I was a defendant,
I shall look for the same judgment today if I am plaintiff. To decide differently would raise
a feeling of resentment and wrong in my breast; it would be an infringement, material and
moral, of my rights." Adherence to precedent must then be the rule rather than the
exception if litigants are to have faith in the even-handed administration of justice in the
courts. 28 CaHAcT
Our Farias ruling on the equal protection implications of the deemed-resigned provisions
cannot be minimalized as mere obiter dictum. It is trite to state that an adjudication on
any point within the issues presented by the case cannot be considered as obiter dictum.
29 This rule applies to all pertinent questions that are presented and resolved in the
regular course of the consideration of the case and lead up to the final conclusion, and to
any statement as to the matter on which the decision is predicated. 30 For that reason, a
point expressly decided does not lose its value as a precedent because the disposition of
the case is, or might have been, made on some other ground; or even though, by reason
of other points in the case, the result reached might have been the same if the court had
held, on the particular point, otherwise than it did. 31 As we held in Villanueva, Jr. v. Court
of Appeals, et al.: 32
...A decision which the case could have turned on is not regarded as obiter dictum merely
because, owing to the disposal of the contention, it was necessary to consider another
question, nor can an additional reason in a decision, brought forward after the case has
been disposed of on one ground, be regarded as dicta. So, also, where a case presents
two (2) or more points, any one of which is sufficient to determine the ultimate issue, but
the court actually decides all such points, the case as an authoritative precedent as to
every point decided, and none of such points can be regarded as having the status of a
dictum, and one point should not be denied authority merely because another point was
more dwelt on and more fully argued and considered, nor does a decision on one
proposition make statements of the court regarding other propositions dicta. 33 (italics
supplied)
ii. Classification Germane to the Purposes of the Law
The Farias ruling on the equal protection challenge stands on solid ground even if
reexamined.
To start with, the equal protection clause does not require the universal application of the
laws to all persons or things without distinction. 34 What it simply requires is equality
among equals as determined according to a valid classification. 35 The test developed
by jurisprudence here and yonder is that of reasonableness, 36 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
533
(4) It applies equally to all members of the same class. 37

Our assailed Decision readily acknowledged that these deemed-resigned provisions
satisfy the first, third and fourth requisites of reasonableness. It, however, proffers the
dubious conclusion that the differential treatment of appointive officials vis--vis elected
officials is not germane to the purpose of the law, because "whether one holds an
appointive office or an elective one, the evils sought to be prevented by the measure
remain," viz.: SCEDaT
...For example, the Executive Secretary, or any Member of the Cabinet for that matter,
could wield the same influence as the Vice-President who at the same time is appointed
to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take
charge of national housing, social welfare development, interior and local government,
and foreign affairs).With the fact that they both head executive offices, there is no valid
justification to treat them differently when both file their [Certificates of Candidacy] for the
elections. Under the present state of our law, the Vice-President, in the example, running
this time, let us say, for President, retains his position during the entire election period
and can still use the resources of his office to support his campaign. 38
Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy
an injustice, the Legislature need not address every manifestation of the evil at once; it
may proceed "one step at a time." 39 In addressing a societal concern, it must invariably
draw lines and make choices, thereby creating some inequity as to those included or
excluded. 40 Nevertheless, as long as "the bounds of reasonable choice" are not
exceeded, the courts must defer to the legislative judgment. 41 We may not strike down
a law merely because the legislative aim would have been more fully achieved by
expanding the class. 42 Stated differently, the fact that a legislative classification, by itself,
is underinclusive will not render it unconstitutionally arbitrary or invidious. 43 There is no
constitutional requirement that regulation must reach each and every class to which it
might be applied; 44 that the Legislature must be held rigidly to the choice of regulating
all or none.
Thus, any person who poses an equal protection challenge must convincingly show that
the law creates a classification that is "palpably arbitrary or capricious." 45 He must refute
all possible rational bases for the differing treatment, whether or not the Legislature cited
those bases as reasons for the enactment, 46 such that the constitutionality of the law
must be sustained even if the reasonableness of the classification is "fairly debatable."
47 In the case at bar, the petitioners failed and in fact did not even attempt to
discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on
this point even while we submitted the following thesis:
...[I]t is not sufficient grounds for invalidation that we may find that the statute's distinction
is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint;
rather, we must find that there is no reasonably rational reason for the differing treatment.
48
In the instant case, is there a rational justification for excluding elected officials from the
operation of the deemed resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps the purest expression of the
sovereign power of the people. 49 It involves the choice or selection of candidates to
public office by popular vote. 50 Considering that elected officials are put in office by their
constituents for a definite term, it may justifiably be said that they were excluded from the
ambit of the deemed resigned provisions in utmost respect for the mandate of the
sovereign will. In other words, complete deference is accorded to the will of the electorate
that they be served by such officials until the end of the term for which they were elected.
In contrast, there is no such expectation insofar as appointed officials are concerned.
CaSHAc
534
The dichotomized treatment of appointive and elective officials is therefore germane to

the purposes of the law. For the law was made not merely to preserve the integrity,
efficiency, and discipline of the public service; the Legislature, whose wisdom is outside
the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet
equally compelling, interest of deferring to the sovereign will. 51 (emphasis in the original)
In fine, the assailed Decision would have us "equalize the playing field" by invalidating
provisions of law that seek to restrain the evils from running riot. Under the pretext of
equal protection, it would favor a situation in which the evils are unconfined and vagrant,
existing at the behest of both appointive and elected officials, over another in which a
significant portion thereof is contained. The absurdity of that position is self-evident, to
say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that
elected officials (vis--vis appointive officials) have greater political clout over the
electorate, is indeed a matter worth exploring but not by this Court. Suffice it to say
that the remedy lies with the Legislature. It is the Legislature that is given the authority,
under our constitutional system, to balance competing interests and thereafter make
policy choices responsive to the exigencies of the times. It is certainly within the
Legislature's power to make the deemed-resigned provisions applicable to elected
officials, should it later decide that the evils sought to be prevented are of such frequency
and magnitude as to tilt the balance in favor of expanding the class. This Court cannot
and should not arrogate unto itself the power to ascertain and impose on the people the
best state of affairs from a public policy standpoint.
iii. Mancuso v. Taft Has Been Overruled
Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed
Decision adverted to, and extensively cited, Mancuso v. Taft. 52 This was a decision of
the First Circuit of the United States Court of Appeals promulgated in March 1973, which
struck down as unconstitutional a similar statutory provision. Pathetically, our assailed
Decision, relying on Mancuso, claimed:
(1) The right to run for public office is "inextricably linked" with two fundamental freedoms
freedom of expression and association;
(2) Any legislative classification that significantly burdens this fundamental right must be
subjected to strict equal protection review; and
(3) While the state has a compelling interest in maintaining the honesty and impartiality
of its public work force, the deemed-resigned provisions pursue their objective in a far too
heavy-handed manner as to render them unconstitutional.
It then concluded with the exhortation that since "the Americans, from whom we copied
the provision in question, had already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow suit." TCHcAE
Our assailed Decision's reliance on Mancuso is completely misplaced. We cannot blink
away the fact that the United States Supreme Court effectively overruled Mancuso three
months after its promulgation by the United States Court of Appeals. In United States Civil
Service Commission, et al. v. National Association of Letter Carriers AFL-CIO, et al. 53
and Broadrick, et al. v. State of Oklahoma, et al., 54 the United States Supreme Court
was faced with the issue of whether statutory provisions prohibiting federal 55 and state
56 employees from taking an active part in political management or in political campaigns
were unconstitutional as to warrant facial invalidation. Violation of these provisions results
in dismissal from employment and possible criminal sanctions.
The Court declared these provisions compliant with the equal protection clause. It held
that (i) in regulating the speech of its employees, the state as employer has interests that
differ significantly from those it possesses in regulating the speech of the citizenry in
general; (ii) the courts must therefore balance the legitimate interest of employee free
expression against the interests of the employer in promoting efficiency of public services;
(iii) if the employees' expression interferes with the maintenance of efficient and regularly
535
functioning services, the limitation on speech is not unconstitutional; and (iv) the
Legislature is to be given some flexibility or latitude in ascertaining which positions are to
be covered by any statutory restrictions. 57 Therefore, insofar as government employees
are concerned, the correct standard of review is an interest-balancing approach, a
means-end scrutiny that examines the closeness of fit between the governmental
interests and the prohibitions in question. 58
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the country appears to have
been that partisan political activities by federal employees must be limited if the
Government is to operate effectively and fairly, elections are to play their proper part in
representative government, and employees themselves are to be sufficiently free from
improper influences. The restrictions so far imposed on federal employees are not aimed
at particular parties, groups, or points of view, but apply equally to all partisan activities
of the type described. They discriminate against no racial, ethnic, or religious minorities.
Nor do they seek to control political opinions or beliefs, or to interfere with or influence
anyone's vote at the polls.
But, as the Court held in Pickering v. Board of Education, 59 the government has an
interest in regulating the conduct and 'the speech of its employees that differ(s)
significantly from those it possesses in connection with regulation of the speech of the
citizenry in general. The problem in any case is to arrive at a balance between the
interests of the (employee),as a citizen, in commenting upon matters of public concern
and the interest of the (government),as an employer, in promoting the efficiency of the
public services it performs through its employees.' Although Congress is free to strike a
different balance than it has, if it so chooses, we think the balance it has so far struck is
sustainable by the obviously important interests sought to be served by the limitations on
partisan political activities now contained in the Hatch Act. HTSIEa
It seems fundamental in the first place that employees in the Executive Branch of the
Government, or those working for any of its agencies, should administer the law in
accordance with the will of Congress, rather than in accordance with their own or the will
of a political party. They are expected to enforce the law and execute the programs of the
Government without bias or favoritism for or against any political party or group or the
members thereof. A major thesis of the Hatch Act is that to serve this great end of
Government the impartial execution of the laws it is essential that federal
employees, for example, not take formal positions in political parties, not undertake to
play substantial roles in partisan political campaigns, and not run for office on partisan
political tickets. Forbidding activities like these will reduce the hazards to fair and effective
government.
There is another consideration in this judgment: it is not only important that the
Government and its employees in fact avoid practicing political justice, but it is also critical
that they appear to the public to be avoiding it, if confidence in the system of
representative Government is not to be eroded to a disastrous extent.
Another major concern of the restriction against partisan activities by federal employees
was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was
the conviction that the rapidly expanding Government work force should not be employed
to build a powerful, invincible, and perhaps corrupt political machine. The experience of
the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently
real that substantial barriers should be raised against the party in power or the party
out of power, for that matter using the thousands or hundreds of thousands of federal
employees, paid for at public expense, to man its political structure and political
campaigns. HIDCTA
A related concern, and this remains as important as any other, was to further serve the
goal that employment and advancement in the Government service not depend on
536
political performance, and at the same time to make sure that Government employees
would be free from pressure and from express or tacit invitation to vote in a certain way
or perform political chores in order to curry favor with their superiors rather than to act out
their own beliefs. It may be urged that prohibitions against coercion are sufficient
protection; but for many years the joint judgment of the Executive and Congress has been
that to protect the rights of federal employees with respect to their jobs and their political
acts and beliefs it is not enough merely to forbid one employee to attempt to influence or
coerce another. For example, at the hearings in 1972 on proposed legislation for
liberalizing the prohibition against political activity, the Chairman of the Civil Service
Commission stated that 'the prohibitions against active participation in partisan political
management and partisan political campaigns constitute the most significant safeguards
against coercion . . ..' Perhaps Congress at some time will come to a different view of the
realities of political life and Government service; but that is its current view of the matter,
and we are not now in any position to dispute it. Nor, in our view, does the Constitution
forbid it.
Neither the right to associate nor the right to participate in political activities is absolute in
any event. 60 ...
xxx xxx xxx
As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent
with the will of Congress, so as to comport with constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision is
constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed restrictions on the
partisan political conduct of state employees. Appellants freely concede that such
restrictions serve valid and important state interests, particularly with respect to attracting
greater numbers of qualified people by insuring their job security, free from the
vicissitudes of the elective process, and by protecting them from 'political extortion.'
Rather, appellants maintain that however permissible, even commendable, the goals of
s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in
their sweep, failing to distinguish between conduct that may be proscribed and conduct
that must be permitted. For these and other reasons, appellants assert that the sixth and
seventh paragraphs of s 818 are void in toto and cannot be enforced against them or
anyone else.
We have held today that the Hatch Act is not impermissibly vague. 61 We have little doubt
that s 818 is similarly not so vague that 'men of common intelligence must necessarily
guess at its meaning.' 62 Whatever other problems there are with s 818, it is all but
frivolous to suggest that the section fails to give adequate warning of what activities it
proscribes or fails to set out 'explicit standards' for those who must apply it. In the plainest
language, it prohibits any state classified employee from being 'an officer or member' of
a 'partisan political club' or a candidate for 'any paid public office.' It forbids solicitation of
contributions 'for any political organization, candidacy or other political purpose' and
taking part 'in the management or affairs of any political party or in any political campaign.'
Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be
disputes over the meaning of such terms in s 818 as 'partisan,' or 'take part in,' or 'affairs
of' political parties. But what was said in Letter Carriers, is applicable here: 'there are
limitations in the English language with respect to being both specific and manageably
brief, and it seems to us that although the prohibitions may not satisfy those intent on
finding fault at any cost, they are set out in terms that the ordinary person exercising
ordinary common sense can sufficiently understand and comply with, without sacrifice to
the public interest.' ... IAEcCT
xxx xxx xxx
537
[Appellants] nevertheless maintain that the statute is overbroad and purports to reach
protected, as well as unprotected conduct, and must therefore be struck down on its face
and held to be incapable of any constitutional application. We do not believe that the
overbreadth doctrine may appropriately be invoked in this manner here.
xxx xxx xxx
The consequence of our departure from traditional rules of standing in the First
Amendment area is that any enforcement of a statute thus placed at issue is totally
forbidden until and unless a limiting construction or partial invalidation so narrows it as to
remove the seeming threat or deterrence to constitutionally protected expression.
Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It
has been employed by the Court sparingly and only as a last resort. ...
...But the plain import of our cases is, at the very least, that facial over-breadth
adjudication is an exception to our traditional rules of practice and that its function, a
limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids
the State to sanction moves from 'pure speech' toward conduct and that conduct-even if
expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls over harmful, constitutionally
unprotected conduct. Although such laws, if too broadly worded, may deter protected
speech to some unknown extent, there comes a point where that effect-at best a
prediction-cannot, with confidence, justify invalidating a statute on its face and so
prohibiting a State from enforcing the statute against conduct that is admittedly within its
power to proscribe. To put the matter another way, particularly where conduct and not
merely speech is involved, we believe that the overbreadth of a statute must not only be
real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It
is our view that s 818 is not substantially overbroad and that whatever overbreadth may
exist should be cured through case-by-case analysis of the fact situations to which its
sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is
directed, by its terms, at political expression which if engaged in by private persons would
plainly be protected by the First and Fourteenth Amendments. But at the same time, s
818 is not a censorial statute, directed at particular groups or viewpoints. The statute,
rather, seeks to regulate political activity in an even-handed and neutral manner. As
indicted, such statutes have in the past been subject to a less exacting overbreadth
scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of
conduct that is as manifestly subject to state regulation as the public peace or criminal
trespass. This much was established in United Public Workers v. Mitchell, and has been
unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers,
there is no question that s 818 is valid at least insofar as it forbids classified employees
from: soliciting contributions for partisan candidates, political parties, or other partisan
political purposes; becoming members of national, state, or local committees of political
parties, or officers or committee members in partisan political clubs, or candidates for any
paid public office;taking part in the management or affairs of any political party's partisan
political campaign; serving as delegates or alternates to caucuses or conventions of
political parties; addressing or taking an active part in partisan political rallies or meetings;
soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters
to the polls; participating in the distribution of partisan campaign literature; initiating or
circulating partisan nominating petitions; or riding in caravans for any political party or
partisan political candidate. HAIaEc
...It may be that such restrictions are impermissible and that s 818 may be susceptible of
some other improper applications. But, as presently construed, we do not believe that s
818 must be discarded in toto because some persons' arguably protected conduct may
538
or may not be caught or chilled by the statute. Section 818 is not substantially overbroad
and it not, therefore, unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the
principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that
these cases cannot be interpreted to mean a reversal of Mancuso, since they "pertain to
different types of laws and were decided based on a different set of facts," viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing,
or threatening to enforce, the Hatch Act's prohibition against "active participation in
political management or political campaigns." The plaintiffs desired to campaign for
candidates for public office, to encourage and get federal employees to run for state and
local offices, to participate as delegates in party conventions, and to hold office in a
political club.
In Broadrick, the appellants sought the invalidation for being vague and overbroad a
provision in the (sic) Oklahoma's Merit System of Personnel Administration Act restricting
the political activities of the State's classified civil servants, in much the same manner as
the Hatch Act proscribed partisan political activities of federal employees. Prior to the
commencement of the action, the appellants actively participated in the 1970 reelection
campaign of their superior, and were administratively charged for asking other
Corporation Commission employees to do campaign work or to give referrals to persons
who might help in the campaign, for soliciting money for the campaign, and for receiving
and distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision.
Kenneth Mancuso, a full time police officer and classified civil service employee of the
City of Cranston, filed as a candidate for nomination as representative to the Rhode Island
General Assembly. The Mayor of Cranston then began the process of enforcing the
resign-to-run provision of the City Home Rule Charter.
Clearly, as the above-cited US cases pertain to different types of laws and were decided
based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to
mean a reversal of Mancuso. ...(italics in the original)
We hold, however, that his position is belied by a plain reading of these cases. Contrary
to his claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of
resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a candidate for nomination as
representative to the Rhode Island General Assembly. He assailed the constitutionality
of 14.09 (c) of the City Home Rule Charter, which prohibits "continuing in the classified
service of the city after becoming a candidate for nomination or election to any public
office."
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was
enforcing, or threatening to enforce, the Hatch Act's prohibition against "active
participation in political management or political campaigns" 63 with respect to certain
defined activities in which they desired to engage. The plaintiffs relevant to this discussion
are: THEcAS
(a) The National Association of Letter Carriers, which alleged that its members were
desirous of, among others, running in local elections for offices such as school board
member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the
office of Borough Councilman in his local community for fear that his participation in a
partisan election would endanger his job; and
539
(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the
1971 partisan election for the mayor of West Lafayette, Indiana, and that he would do so
except for fear of losing his job by reason of violation of the Hatch Act.
The Hatch Act defines "active participation in political management or political
campaigns" by cross-referring to the rules made by the Civil Service Commission. The
rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a nomination or for election to any National,
State, county, or municipal office is not permissible. The prohibition against political
activity extends not merely to formal announcement of candidacy but also to the
preliminaries leading to such announcement and to canvassing or soliciting support or
doing or permitting to be done any act in furtherance of candidacy. The fact that
candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of
friends in furtherance of such candidacy such acquiescence constitutes an infraction of
the prohibitions against political activity. (italics supplied)
Section 9 (b) requires the immediate removal of violators and forbids the use of
appropriated funds thereafter to pay compensation to these persons. 64
(3) Broadrick was a class action brought by certain Oklahoma state employees seeking
a declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma's
Merit System of Personnel Administration Act. Section 818 (7),the paragraph relevant to
this discussion, states that "[n]o employee in the classified service shall be ...a candidate
for nomination or election to any paid public office ..." Violation of Section 818 results in
dismissal from employment, possible criminal sanctions and limited state employment
ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled
Mancuso.By no stretch of the imagination could Mancuso still be held operative, as Letter
Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were
decided by a superior court, the United States Supreme Court. It was thus not surprising
for the First Circuit Court of Appeals the same court that decided Mancuso to hold
categorically and emphatically in Magill v. Lynch 65 that Mancuso is no longer good
law.As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975.
Pawtucket's "Little Hatch Act" prohibits city employees from engaging in a broad range of
political activities. Becoming a candidate for any city office is specifically proscribed, 66
the violation being punished by removal from office or immediate dismissal. The firemen
brought an action against the city officials on the ground that that the provision of the city
charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and
Broadrick, took the position that Mancuso had since lost considerable vitality. It observed
that the view that political candidacy was a fundamental interest which could be infringed
upon only if less restrictive alternatives were not available, was a position which was no
longer viable, since the Supreme Court (finding that the government's interest in
regulating both the conduct and speech of its employees differed significantly from its
interest in regulating those of the citizenry in general) had given little weight to the
argument that prohibitions against the coercion of government employees were a less
drastic means to the same end, deferring to the judgment of Congress, and applying a
"balancing" test to determine whether limits on political activity by public employees
substantially served government interests which were "important" enough to outweigh the
employees' First Amendment rights. 67 aIcCTA
It must be noted that the Court of Appeals ruled in this manner even though the election
in Magill was characterized as nonpartisan,as it was reasonable for the city to fear, under
the circumstances of that case, that politically active bureaucrats might use their official
power to help political friends and hurt political foes. Ruled the court:
540
The question before us is whether Pawtucket's charter provision, which bars a city
employee's candidacy in even a nonpartisan city election, is constitutional. The issue
compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v.
Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil
servants from partisan political activity. Letter Carriers reaffirmed United Public Workers
v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees.
Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting
its holding to Oklahoma's construction that the Act barred only activity in partisan politics.
In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections
would not be constitutional. Letter Carriers and Broadrick compel new analysis.
xxx xxx xxx
What we are obligated to do in this case, as the district court recognized, is to apply the
Court's interest balancing approach to the kind of nonpartisan election revealed in this
record. We believe that the district court found more residual vigor in our opinion in
Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our
view that political candidacy was a fundamental interest which could be trenched upon
only if less restrictive alternatives were not available. While this approach may still be
viable for citizens who are not government employees, the Court in Letter Carriers
recognized that the government's interest in regulating both the conduct and speech of
its employees differs significantly from its interest in regulating those of the citizenry in
general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but
the Court gave little weight to the argument that prohibitions against the coercion of
government employees were a less drastic means to the same end, deferring to the
judgment of the Congress. We cannot be more precise than the Third Circuit in
characterizing the Court's approach as "some sort of 'balancing' process".68 It appears
that the government may place limits on campaigning by public employees if the limits
substantially serve government interests that are "important" enough to outweigh the
employees' First Amendment rights. ...(italics supplied)
Upholding thus the constitutionality of the law in question, the Magill court detailed the
major governmental interests discussed in Letter Carriers and applied them to the
Pawtucket provision as follows:
In Letter Carriers[,] the first interest identified by the Court was that of an efficient
government, faithful to the Congress rather than to party. The district court discounted
this interest, reasoning that candidates in a local election would not likely be committed
to a state or national platform. This observation undoubtedly has substance insofar as
allegiance to broad policy positions is concerned. But a different kind of possible political
intrusion into efficient administration could be thought to threaten municipal government:
not into broad policy decisions, but into the particulars of administration favoritism in
minute decisions affecting welfare, tax assessments, municipal contracts and purchasing,
hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a
second governmental interest in the avoidance of the appearance of "political justice" as
to policy, so there is an equivalent interest in avoiding the appearance of political
preferment in privileges, concessions, and benefits. The appearance (or reality) of
favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan
character of the formal election process. Where, as here, party support is a key to
successful campaigning, and party rivalry is the norm, the city might reasonably fear that
politically active bureaucrats would use their official power to help political friends and
hurt political foes. This is not to say that the city's interest in visibly fair and effective
administration necessarily justifies a blanket prohibition of all employee campaigning; if
parties are not heavily involved in a campaign, the danger of favoritism is less, for neither
friend nor foe is as easily identified. CScaDH
541
A second major governmental interest identified in Letter Carriers was avoiding the
danger of a powerful political machine. The Court had in mind the large and growing
federal bureaucracy and its partisan potential. The district court felt this was only a minor
threat since parties had no control over nominations. But in fact candidates sought party
endorsements, and party endorsements proved to be highly effective both in determining
who would emerge from the primary election and who would be elected in the final
election. Under the prevailing customs, known party affiliation and support were highly
significant factors in Pawtucket elections. The charter's authors might reasonably have
feared that a politically active public work force would give the incumbent party, and the
incumbent workers, an unbreakable grasp on the reins of power. In municipal elections
especially, the small size of the electorate and the limited powers of local government
may inhibit the growth of interest groups powerful enough to outbalance the weight of a
partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated
government employees may seek to influence voters or their co-workers improperly; but
a more real danger is that a central party structure will mass the scattered powers of
government workers behind a single party platform or slate. Occasional misuse of the
public trust to pursue private political ends is tolerable, especially because the political
views of individual employees may balance each other out. But party discipline eliminates
this diversity and tends to make abuse systematic. Instead of a handful of employees
pressured into advancing their immediate superior's political ambitions, the entire
government work force may be expected to turn out for many candidates in every election.
In Pawtucket, where parties are a continuing presence in political campaigns, a carefully
orchestrated use of city employees in support of the incumbent party's candidates is
possible. The danger is scarcely lessened by the openness of Pawtucket's nominating
procedure or the lack of party labels on its ballots.
The third area of proper governmental interest in Letter Carriers was ensuring that
employees achieve advancement on their merits and that they be free from both coercion
and the prospect of favor from political activity. The district court did not address this
factor, but looked only to the possibility of a civil servant using his position to influence
voters, and held this to be no more of a threat than in the most nonpartisan of elections.
But we think that the possibility of coercion of employees by superiors remains as strong
a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic
and coordinated exploitation of public servants for political ends that a legislature is most
likely to see as the primary threat of employees' rights. Political oppression of public
employees will be rare in an entirely nonpartisan system. Some superiors may be inclined
to ride herd on the politics of their employees even in a nonpartisan context, but without
party officials looking over their shoulders most supervisors will prefer to let employees
go their own ways.
In short, the government may constitutionally restrict its employees' participation in
nominally nonpartisan elections if political parties play a large role in the campaigns. In
the absence of substantial party involvement, on the other hand, the interests identified
by the Letter Carriers Court lose much of their force. While the employees' First
Amendment rights would normally outbalance these diminished interests, we do not
suggest that they would always do so. Even when parties are absent, many employee
campaigns might be thought to endanger at least one strong public interest, an interest
that looms larger in the context of municipal elections than it does in the national elections
considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate
running directly against his superior or running for a position that confers great power
over his superior. An employee of a federal agency who seeks a Congressional seat
poses less of a direct challenge to the command and discipline of his agency than a
fireman or policeman who runs for mayor or city council. The possibilities of internal
discussion, cliques, and political bargaining, should an employee gather substantial
political support, are considerable. (citations omitted) TEaADS
542
The court, however, remanded the case to the district court for further proceedings in
respect of the petitioners' overbreadth charge. Noting that invalidating a statute for being
overbroad is "not to be taken lightly, much less to be taken in the dark," the court held:
The governing case is Broadrick, which introduced the doctrine of "substantial"
overbreadth in a closely analogous case. Under Broadrick, when one who challenges a
law has engaged in constitutionally unprotected conduct (rather than unprotected speech)
and when the challenged law is aimed at unprotected conduct, "the overbreadth of a
statute must not only be real, but substantial as well, judged in relation to the statute's
plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish
speech from conduct, and how to define "substantial" overbreadth. We are spared the
first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a
candidate, and they were subject to discipline under a law proscribing a wide range of
activities, including soliciting contributions for political candidates and becoming a
candidate. The Court found that this combination required a substantial overbreadth
approach. The facts of this case are so similar that we may reach the same result without
worrying unduly about the sometimes opaque distinction between speech and conduct.
The second difficulty is not so easily disposed of. Broadrick found no substantial
overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further,
banning participation in nonpartisan campaigns as well. Measuring the substantiality of a
statute's overbreadth apparently requires, inter alia, a rough balancing of the number of
valid applications compared to the number of potentially invalid applications. Some
sensitivity to reality is needed; an invalid application that is far-fetched does not deserve
as much weight as one that is probable. The question is a matter of degree; it will never
be possible to say that a ratio of one invalid to nine valid applications makes a law
substantially overbroad. Still, an overbreadth challenger has a duty to provide the court
with some idea of the number of potentially invalid applications the statute permits. Often,
simply reading the statute in the light of common experience or litigated cases will suggest
a number of probable invalid applications. But this case is different. Whether the statute
is overbroad depends in large part on the number of elections that are insulated from
party rivalry yet closed to Pawtucket employees. For all the record shows, every one of
the city, state, or federal elections in Pawtucket is actively contested by political parties.
Certainly the record suggests that parties play a major role even in campaigns that often
are entirely nonpartisan in other cities. School committee candidates, for example, are
endorsed by the local Democratic committee.
The state of the record does not permit us to find overbreadth; indeed such a step is not
to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus
below, in the short period before the election was held, was on the constitutionality of the
statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they
should be afforded the opportunity to demonstrate that the charter forecloses access to
a significant number of offices, the candidacy for which by municipal employees would
not pose the possible threats to government efficiency and integrity which Letter Carriers,
as we have interpreted it, deems significant. Accordingly, we remand for consideration of
plaintiffs' overbreadth claim. (italics supplied, citations omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso
v. Taft, heavily relied upon by the ponencia, has effectively been overruled.69 As it is no
longer good law, the ponencia's exhortation that "[since] the Americans, from whom we
copied the provision in question, had already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow suit" is misplaced and
unwarranted. 70
Accordingly, our assailed Decision's submission that the right to run for public office is
"inextricably linked" with two fundamental freedoms those of expression and
association lies on barren ground. American case law has in fact never recognized a
543
fundamental right to express one's political views through candidacy, 71 as to invoke a

rigorous standard of review. 72 Bart v. Telford 73 pointedly stated that "[t]he First
Amendment does not in terms confer a right to run for public office, and this court has
held that it does not do so by implication either." Thus, one's interest in seeking office, by
itself, is not entitled to constitutional protection. 74 Moreover, one cannot bring one's
action under the rubric of freedom of association, absent any allegation that, by running
for an elective position, one is advancing the political ideas of a particular set of voters.
75 HTSAEa
Prescinding from these premises, it is crystal clear that the provisions challenged in the
case at bar, are not violative of the equal protection clause. The deemed-resigned
provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful
to the government and the people rather than to party; (ii) avoidance of the appearance
of "political justice" as to policy; (iii) avoidance of the danger of a powerful political
machine; and (iv) ensuring that employees achieve advancement on their merits and that
they be free from both coercion and the prospect of favor from political activity).These are
interests that are important enough to outweigh the non-fundamental right of appointive
officials and employees to seek elective office.
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing 76
and Morial, et al. v. Judiciary Commission of the State of Louisiana, et al. 77 to buttress
his dissent. Maintaining that resign-to-run provisions are valid only when made applicable
to specified officials, he explains:
...U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run
provisions when applied to specified or particular officials, as distinguished from all others,
78 under a classification that is germane to the purposes of the law. These resign-to-run
legislations were not expressed in a general and sweeping provision, and thus did not
violate the test of being germane to the purpose of the law, the second requisite for a
valid classification. Directed, as they were, to particular officials, they were not overly
encompassing as to be overbroad. (emphasis in the original)
This reading is a regrettable misrepresentation of Clements and Morial.The resign-to-run
provisions in these cases were upheld not because they referred to specified or particular
officials (vis--vis a general class);the questioned provisions were found valid precisely
because the Court deferred to legislative judgment and found that a regulation is not
devoid of a rational predicate simply because it happens to be incomplete.In fact, the
equal protection challenge in Clements revolved around the claim that the State of Texas
failed to explain why some public officials are subject to the resign-to-run provisions, while
others are not. Ruled the United States Supreme Court:
Article XVI, 65, of the Texas Constitution provides that the holders of certain offices
automatically resign their positions if they become candidates for any other elected office,
unless the unexpired portion of the current term is one year or less. The burdens that
65 imposes on candidacy are even less substantial than those imposed by 19. The two
provisions, of course, serve essentially the same state interests. The District Court found
65 deficient, however, not because of the nature or extent of the provision's restriction
on candidacy, but because of the manner in which the offices are classified. According to
the District Court, the classification system cannot survive equal protection scrutiny,
because Texas has failed to explain sufficiently why some elected public officials are
subject to 65 and why others are not. As with the case of 19, we conclude that 65
survives a challenge under the Equal Protection Clause unless appellees can show that
there is no rational predicate to the classification scheme. TcSICH
The history behind 65 shows that it may be upheld consistent with the "one step at a
time" approach that this Court has undertaken with regard to state regulation not subject
to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65
was enacted in 1954 as a transitional provision applying only to the 1954 election. Section
65 extended the terms of those offices enumerated in the provision from two to four years.
The provision also staggered the terms of other offices so that at least some county and
local offices would be contested at each election. The automatic resignation proviso to
544
65 was not added until 1958. In that year, a similar automatic resignation provision was
added in Art. XI, 11, which applies to officeholders in home rule cities who serve terms
longer than two years. Section 11 allows home rule cities the option of extending the
terms of municipal offices from two to up to four years.
Thus, the automatic resignation provision in Texas is a creature of the State's electoral
reforms of 1958. That the State did not go further in applying the automatic resignation
provision to those officeholders whose terms were not extended by 11 or 65, absent
an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process
forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate
simply because it happens to be incomplete. The Equal Protection Clause does not forbid
Texas to restrict one elected officeholder's candidacy for another elected office unless
and until it places similar restrictions on other officeholders. The provision's language and
its history belie any notion that 65 serves the invidious purpose of denying access to
the political process to identifiable classes of potential candidates. (citations omitted and
italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no
blanket approval of restrictions on the right of public employees to become candidates for
public office" out of context. A correct reading of that line readily shows that the Court
only meant to confine its ruling to the facts of that case, as each equal protection
challenge would necessarily have to involve weighing governmental interests vis--vis
the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political association are
unquestionably entitled to the protection of the first and fourteenth amendments. Nothing
in today's decision should be taken to imply that public employees may be prohibited from
expressing their private views on controversial topics in a manner that does not interfere
with the proper performance of their public duties. In today's decision, there is no blanket
approval of restrictions on the right of public employees to become candidates for public
office. Nor do we approve any general restrictions on the political and civil rights of judges
in particular. Our holding is necessarily narrowed by the methodology employed to reach
it. A requirement that a state judge resign his office prior to becoming a candidate for nonjudicial office bears a reasonably necessary relation to the achievement of the state's
interest in preventing the actuality or appearance of judicial impropriety. Such a
requirement offends neither the first amendment's guarantees of free expression and
association nor the fourteenth amendment's guarantee of equal protection of the laws.
(italics supplied) cTCEIS
Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining which of its
employment positions require restrictions on partisan political activities and which may be
left unregulated. And a State can hardly be faulted for attempting to limit the positions
upon which such restrictions are placed. (citations omitted)
V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth
Apart from nullifying Section 4 (a) of Resolution 8678, Section 13 of RA 9369, and Section
66 of the Omnibus Election Code on equal protection ground, our assailed Decision struck
them down for being overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts
without due regard for the type of position being held by the employee seeking an elective
post and the degree of influence that may be attendant thereto; 79 and
545
(2) The assailed provisions limit the candidacy of any and all civil servants holding
appointive positions without due regard for the type of office being sought, whether it be
partisan or nonpartisan in character, or in the national, municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i. Limitation on Candidacy Regardless of
Incumbent Appointive Official's Position, Valid
According to the assailed Decision, the challenged provisions of law are overly broad
because they apply indiscriminately to all civil servants holding appointive posts, without
due regard for the type of position being held by the employee running for elective office
and the degree of influence that may be attendant thereto.
Its underlying assumption appears to be that the evils sought to be prevented are extant
only when the incumbent appointive official running for elective office holds an influential
post.
Such a myopic view obviously fails to consider a different, yet equally plausible, threat to
the government posed by the partisan potential of a large and growing bureaucracy: the
danger of systematic abuse perpetuated by a "powerful political machine" that has
amassed "the scattered powers of government workers" so as to give itself and its
incumbent workers an "unbreakable grasp on the reins of power." 80 As elucidated in our
prior exposition: 81 EHTSCD
Attempts by government employees to wield influence over others or to make use of their
respective positions (apparently) to promote their own candidacy may seem tolerable
even innocuous particularly when viewed in isolation from other similar attempts by
other government employees. Yet it would be decidedly foolhardy to discount the equally
(if not more) realistic and dangerous possibility that such seemingly disjointed attempts,
when taken together, constitute a veiled effort on the part of an emerging central party
structure to advance its own agenda through a "carefully orchestrated use of [appointive
and/or elective] officials" coming from various levels of the bureaucracy.
...[T]he avoidance of such a "politically active public work force" which could give an
emerging political machine an "unbreakable grasp on the reins of power" is reason
enough to impose a restriction on the candidacies of all appointive public officials without
further distinction as to the type of positions being held by such employees or the degree
of influence that may be attendant thereto. (citations omitted)
ii. Limitation on Candidacy
Regardless of Type of Office Sought, Valid
The assailed Decision also held that the challenged provisions of law are overly broad
because they are made to apply indiscriminately to all civil servants holding appointive
offices, without due regard for the type of elective office being sought, whether it be
partisan or nonpartisan in character, or in the national, municipal or barangay level.
This erroneous ruling is premised on the assumption that "the concerns of a truly partisan
office and the temptations it fosters are sufficiently different from those involved in an
office removed from regular party politics [so as] to warrant distinctive treatment," 82 so
that restrictions on candidacy akin to those imposed by the challenged provisions can
validly apply only to situations in which the elective office sought is partisan in character.
To the extent, therefore, that such restrictions are said to preclude even candidacies for
nonpartisan elective offices, the challenged restrictions are to be considered as
overbroad.
Again, a careful study of the challenged provisions and related laws on the matter will
show that the alleged overbreadth is more apparent than real. Our exposition on this issue
has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set
forth therein refer to the filing of certificates of candidacy and nomination of official
candidates of registered political parties, in connection with the May 10, 2010 National
and Local Elections. 83 Obviously, these rules and guidelines, including the restriction in
Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10,
546
2010 National and Local Elections, which, it must be noted, are decidedly partisan in
character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to
the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010
National and Local Elections. On this score, the overbreadth challenge leveled against
Section 4 (a) is clearly unsustainable. aIcDCH
Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus
Election Code, in conjunction with other related laws on the matter, will confirm that these
provisions are likewise not intended to apply to elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry are the elections for barangay
offices, since these are the only elections in this country which involve nonpartisan public
offices. 84
In this regard, it is well to note that from as far back as the enactment of the Omnibus
Election Code in 1985, Congress has intended that these nonpartisan barangay elections
be governed by special rules, including a separate rule on deemed resignations which is
found in Section 39 of the Omnibus Election Code. Said provision states:
Section 39. Certificate of Candidacy. No person shall be elected punong barangay or
kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in
triplicate on any day from the commencement of the election period but not later than the
day before the beginning of the campaign period in a form to be prescribed by the
Commission. The candidate shall state the barangay office for which he is a candidate.
xxx xxx xxx
Any elective or appointive municipal, city, provincial or national official or employee, or
those in the civil or military service, including those in government-owned or-controlled
corporations, shall be considered automatically resigned upon the filing of certificate of
candidacy for a barangay office.
Since barangay elections are governed by a separate deemed resignation rule, under the
present state of law, there would be no occasion to apply the restriction on candidacy
found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of
Section 13 of RA 9369, to any election other than a partisan one. For this reason, the
overbreadth challenge raised against Section 66 of the Omnibus Election Code and the
pertinent proviso in Section 13 of RA 9369 must also fail. 85
In any event, even if we were to assume, for the sake of argument, that Section 66 of the
Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are
general rules that apply also to elections for nonpartisan public offices, the overbreadth
challenge would still be futile. Again, we explained:
In the first place, the view that Congress is limited to controlling only partisan behavior
has not received judicial imprimatur, because the general proposition of the relevant US
cases on the matter is simply that the government has an interest in regulating the
conduct and speech of its employees that differs significantly from those it possesses in
connection with regulation of the speech of the citizenry in general. 86
Moreover, in order to have a statute declared as unconstitutional or void on its face for
being overly broad, particularly where, as in this case, "conduct" and not "pure speech"
is involved, the overbreadth must not only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep. 87 DaTEIc
In operational terms, measuring the substantiality of a statute's overbreadth would entail,
among other things, a rough balancing of the number of valid applications compared to
the number of potentially invalid applications. 88 In this regard, some sensitivity to reality
547
is needed; an invalid application that is far-fetched does not deserve as much weight as
one that is probable. 89 The question is a matter of degree. 90 Thus, assuming for the
sake of argument that the partisan-nonpartisan distinction is valid and necessary such
that a statute which fails to make this distinction is susceptible to an overbreadth attack,
the overbreadth challenge presently mounted must demonstrate or provide this Court with
some idea of the number of potentially invalid elections (i.e., the number of elections that
were insulated from party rivalry but were nevertheless closed to appointive employees)
that may in all probability result from the enforcement of the statute. 91
The state of the record, however, does not permit us to find overbreadth. Borrowing from
the words of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to
be taken in the dark, 92 especially since an overbreadth finding in this case would
effectively prohibit the State from 'enforcing an otherwise valid measure against conduct
that is admittedly within its power to proscribe.' 93
This Court would do well to proceed with tiptoe caution, particularly when it comes to the
application of the overbreadth doctrine in the analysis of statutes that purportedly attempt
to restrict or burden the exercise of the right to freedom of speech, for such approach is
manifestly strong medicine that must be used sparingly, and only as a last resort. 94
EcIaTA
In the United States, claims of facial overbreadth have been entertained only where, in
the judgment of the court, the possibility that protected speech of others may be muted
and perceived grievances left to fester (due to the possible inhibitory effects of overly
broad statutes) outweighs the possible harm to society in allowing some unprotected
speech or conduct to go unpunished. 95 Facial overbreadth has likewise not been
invoked where a limiting construction could be placed on the challenged statute, and
where there are readily apparent constructions that would cure, or at least substantially
reduce, the alleged overbreadth of the statute. 96
In the case at bar, the probable harm to society in permitting incumbent appointive officials
to remain in office, even as they actively pursue elective posts, far outweighs the less
likely evil of having arguably protected candidacies blocked by the possible inhibitory
effect of a potentially overly broad statute.
In this light, the conceivably impermissible applications of the challenged statutes
which are, at best, bold predictions cannot justify invalidating these statutes in toto and
prohibiting the State from enforcing them against conduct that is, and has for more than
100 years been, unquestionably within its power and interest to proscribe. 97 Instead, the
more prudent approach would be to deal with these conceivably impermissible
applications through case-by-case adjudication rather than through a total invalidation of
the statute itself. 98
Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion
for Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet
members had already filed their Certificates of Candidacy without relinquishing their
posts. 99 Several COMELEC election officers had likewise filed their Certificates of
Candidacy in their respective provinces. 100 Even the Secretary of Justice had filed her
certificate of substitution for representative of the first district of Quezon province last
December 14, 2009 101 even as her position as Justice Secretary includes supervision
over the City and Provincial Prosecutors, 102 who, in turn, act as Vice-Chairmen of the
respective Boards of Canvassers. 103 The Judiciary has not been spared, for a Regional
Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow
the tilting of our electoral playing field in their favor.
For the foregoing reasons, we now rule that Section 4 (a) of Resolution 8678 and Section
13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not
unconstitutionally overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent's and the
intervenors' Motions for Reconsideration; REVERSE and SET ASIDE this Court's
December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring
as not UNCONSTITUTIONAL (1) Section 4 (a) of COMELEC Resolution No. 8678, (2)
548
the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3)
Section 66 of the Omnibus Election Code. IDCHTE
SO ORDERED.
Carpio, Corona, Carpio Morales, Velasco, Jr.,Nachura, Leonardo-de Castro, Brion,
Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr.,Perez and Mendoza, JJ., concur.
||| (Quinto v. Commission on Elections, G.R. No. 189698 (Resolution), [February 22,
2010])
4.
ANG LADLAD VS. COMELEC 618 SCRA 32 (2010)
EN BANC
[G.R. No. 190582. April 8, 2010.]
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO,
petitioner,vs.COMMISSION ON ELECTIONS, respondent.
DECISION
DEL CASTILLO, J p:
...[F]reedom to differ is not limited to things that do not matter much. That would be a
mere shadow of freedom. The test of its substance is the right to differ as to things that
touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette 1
One unavoidable consequence of everyone having the freedom to choose is that others
may make different choices choices we would not make for ourselves, choices we may
disapprove of, even choices that may shock or offend or anger us. However, choices are
not to be legally prohibited merely because they are different, and the right to disagree
and debate about important questions of public policy is a core value protected by our Bill
of Rights. Indeed, our democracy is built on genuine recognition of, and respect for,
diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the definitions
and demands of morality. In many cases, where moral convictions are concerned,
harmony among those theoretically opposed is an insurmountable goal. Yet herein lies
the paradox philosophical justifications about what is moral are indispensable and yet
at the same time powerless to create agreement. This Court recognizes, however, that
practical solutions are preferable to ideological stalemates; accommodation is better than
intransigence; reason more worthy than rhetoric. This will allow persons of diverse
viewpoints to live together, if not harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for
a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad)
against the Resolutions of the Commission on Elections (COMELEC) dated November
11, 2009 2 (the First Assailed Resolution) and December 16, 2009 3 (the Second Assailed
Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has
its roots in the COMELEC's refusal to accredit Ang Ladlad as a party-list organization
under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act. 4
CDAHaE
Ang Ladlad is an organization composed of men and women who identify themselves as
lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).Incorporated in 2003,
Ang Ladlad first applied for registration with the COMELEC in 2006. The application for
549
accreditation was denied on the ground that the organization had no substantial
membership base. On August 17, 2009, Ang Ladlad again filed a Petition 5 for registration
with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and
under-represented sector that is particularly disadvantaged because of their sexual
orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and
violence; that because of negative societal attitudes, LGBTs are constrained to hide their
sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated
by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections. 6 Ang
Ladlad laid out its national membership base consisting of individual members and
organizational supporters, and outlined its platform of governance. 7
On November 11, 2009, after admitting the petitioner's evidence, the COMELEC (Second
Division) dismissed the Petition on moral grounds, stating that:
...This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian,
Gay, Bisexual and Transgender (LGBT) Community, thus:
...a marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
...refers to a person's capacity for profound emotional, affectional and sexual attraction
to, and intimate and sexual relations with, individuals of a different gender, of the same
gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality
which offends religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did change
the natural use into that which is against nature: And likewise also the men, leaving the
natural use of the woman, burned in their lust one toward another; men with men working
that which is unseemly, and receiving in themselves that recompense of their error which
was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a people
transgressing beyond bounds." (7.81) "And we rained down on them a shower (of
brimstone):Then see what was the end of those who indulged in sin and crime!" (7:84)
"He said: "O my Lord! Help Thou me against people who do mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated October 2, 2008:
CcADHI
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition's
par. 6F: 'Consensual partnerships or relationships by gays and lesbians who are already
of age'.It is further indicated in par. 24 of the Petition which waves for the record: 'In 2007,
Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000
(Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or
accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code
are deemed part of the requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as 'Any
act, omission, establishment, business, condition of property, or anything else which . . .
(3) shocks, defies; or disregards decency or morality ...
550
It also collides with Article 1306 of the Civil Code: 'The contracting parties may establish
such stipulations, clauses, terms and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order or public policy. Art. 1409
of the Civil Code provides that 'Contracts whose cause, object or purpose is contrary to
law, morals, good customs,public order or public policy' are inexistent and void from the
beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as
amended, penalizes 'Immoral doctrines, obscene publications and exhibitions and
indecent shows' as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows.
The penalty of prision mayor or a fine ranging from six thousand to twelve thousand
pesos, or both such imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to public
morals;
2. (a) The authors of obscene literature, published with their knowledge in any form; the
editors publishing such literature; and the owners/operators of the establishment selling
the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or
immoral plays, scenes, acts or shows, it being understood that the obscene literature or
indecent or immoral plays, scenes, acts or shows, whether live or in film, which are
prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone
crimes; (2) serve no other purpose but to satisfy the market for violence, lust or
pornography;(3) offend any race or religion; (4) tend to abet traffic in and use of prohibited
drugs; and (5) are contrary to law, public order, morals, good customs,established
policies, lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or
literature which are offensive to morals. THADEI
Petitioner should likewise be denied accreditation not only for advocating immoral
doctrines but likewise for not being truthful when it said that it "or any of its
nominees/party-list representatives have not violated or failed to comply with laws, rules,
or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing our youth to
an environment that does not conform to the teachings of our faith. Lehman Strauss, a
famous bible teacher and writer in the U.S.A. said in one article that "older practicing
homosexuals are a threat to the youth." As an agency of the government, ours too is the
State's avowed duty under Section 13, Article II of the Constitution to protect our youth
from moral and spiritual degradation. 8
When Ang Ladlad sought reconsideration, 9 three commissioners voted to overturn the
First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento,
and Armando Velasco), while three commissioners voted to deny Ang Ladlad's Motion
for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias
R. Yusoph).The COMELEC Chairman, breaking the tie and speaking for the majority in
his Separate Opinion, upheld the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list system. Even
assuming that it has properly proven its under-representation and marginalization, it
551
cannot be said that Ladlad's expressed sexual orientations per se would benefit the nation
as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system
of electing congressional representatives is to enable Filipino citizens belonging to
marginalized and under-represented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an organization to
represent its constituencies, then all representative organizations would have found
themselves into the party-list race. But that is not the intention of the framers of the law.
The party-list system is not a tool to advocate tolerance and acceptance of misunderstood
persons or groups of persons. Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also the nation's only that
their interests have not been brought to the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to justify that having mixed
sexual orientations and transgender identities is beneficial to the nation, its application for
accreditation under the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine jurisprudence,
courts do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special
class" of individuals. . . . Significantly, it has also been held that homosexuality is not a
constitutionally protected fundamental right, and that "nothing in the U.S. Constitution
discloses a comparable intent to protect or promote the social or legal equality of
homosexual relations," as in the case of race or religion or belief. EcHTCD
xxx xxx xxx
Thus, even if society's understanding, tolerance, and acceptance of LGBT's is elevated,
there can be no denying that Ladlad constituencies are still males and females, and they
will remain either male or female protected by the same Bill of Rights that applies to all
citizens alike.
xxx xxx xxx
IV. Public Morals
...There is no question about not imposing on Ladlad Christian or Muslim religious
practices. Neither is there any attempt to any particular religious group's moral rules on
Ladlad. Rather, what are being adopted as moral parameters and precepts are generally
accepted public morals. They are possibly religious-based, but as a society, the
Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing,
such that some moral precepts espoused by said religions have sipped [sic] into society
and these are not publicly accepted moral norms.
V.Legal Provisions
But above morality and social norms, they have become part of the law of the land. Article
201 of the Revised Penal Code imposes the penalty of prision mayor upon "Those who
shall publicly expound or proclaim doctrines openly contrary to public morals." It penalizes
"immoral doctrines, obscene publications and exhibition and indecent shows." "Ang
Ladlad" apparently falls under these legal provisions. This is clear from its Petition's
paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who are
552
already of age. It is further indicated in par. 24 of the Petition which waves for the record:
'In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as
670,000. Moreoever, * Article 694 of the Civil Code defines "nuisance" as any act,
omission . . . or anything else . . . which shocks, defies or disregards decency or morality
. . . ." These are all unlawful. 10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the
Assailed Resolutions and direct the COMELEC to grant Ang Ladlad's application for
accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory
injunction against the COMELEC, which had previously announced that it would begin
printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its
Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010. 11
Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting
that it be given until January 16, 2010 to Comment. 12 Somewhat surprisingly, the OSG
later filed a Comment in support of petitioner's application. 13 Thus, in order to give
COMELEC the opportunity to fully ventilate its position, we required it to file its own
comment. 14 The COMELEC, through its Law Department, filed its Comment on February
2, 2010. 15
In the meantime, due to the urgency of the petition, we issued a temporary restraining
order on January 12, 2010, effective immediately and continuing until further orders from
this Court, directing the COMELEC to cease and desist from implementing the Assailed
Resolutions. 16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to
Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.
17 The CHR opined that the denial of Ang Ladlad's petition on moral grounds violated the
standards and principles of the Constitution, the Universal Declaration of Human Rights
(UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On
January 19, 2010, we granted the CHR's motion to intervene. DcaECT
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene 18 which
motion was granted on February 2, 2010. 19
The Parties' Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by
using religious dogma, violated the constitutional guarantees against the establishment
of religion. Petitioner also claimed that the Assailed Resolutions contravened its
constitutional rights to privacy, freedom of speech and assembly, and equal protection of
laws, as well as constituted violations of the Philippines' international obligations against
discrimination based on sexual orientation.
The OSG concurred with Ang Ladlad's petition and argued that the COMELEC erred in
denying petitioner's application for registration since there was no basis for COMELEC's
allegations of immorality. It also opined that LGBTs have their own special interests and
concerns which should have been recognized by the COMELEC as a separate
classification. However, insofar as the purported violations of petitioner's freedom of
speech, expression, and assembly were concerned, the OSG maintained that there had
been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and
genuine national political agenda to benefit the nation and that the petition was validly
dismissed on moral grounds. It also argued for the first time that the LGBT sector is not
among the sectors enumerated by the Constitution and RA 7941, and that petitioner made
untruthful statements in its petition when it alleged its national existence contrary to actual
verification reports by COMELEC's field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of
the Constitution and Republic Act No.
7941
553
The COMELEC denied Ang Ladlad's application for registration on the ground that the
LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated
with or related to any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to said
sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals) may be
registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections, 20 "the enumeration of marginalized and underrepresented sectors is not exclusive". The crucial element is not whether a sector is
specifically enumerated, but whether a particular organization complies with the
requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition when
it alleged that it had nationwide existence through its members and affiliate organizations.
The COMELEC claims that upon verification by its field personnel, it was shown that "save
for a few isolated places in the country, petitioner does not exist in almost all provinces in
the country." 21 EaISTD
This argument that "petitioner made untruthful statements in its petition when it alleged
its national existence" is a new one; previously, the COMELEC claimed that petitioner
was "not being truthful when it said that it or any of its nominees/party-list representatives
have not violated or failed to comply with laws, rules, or regulations relating to the
elections." Nowhere was this ground for denial of petitioner's accreditation mentioned or
even alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering
that the reports of petitioner's alleged non-existence were already available to the
COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular
procedure; at worst, a belated afterthought, a change in respondent's theory, and a
serious violation of petitioner's right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
Ladlad's initial petition shows that it never claimed to exist in each province of the
Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was
estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members
around the country, and 4,044 members in its electronic discussion group. 22 Ang Ladlad
also represented itself to be "a national LGBT umbrella organization with affiliates around
the Philippines composed of the following LGBT networks:"
Abra Gay Association
Aklan Butterfly Brigade (ABB)-Aklan
Albay Gay Association
Arts Center of Cabanatuan City-Nueva Ecija
Boys Legion-Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Can't Live in the Closet, Inc. (CLIC)-Metro Manila
Cebu Pride-Cebu City
Circle of Friends
Dipolog Gay Association-Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG)-Metro Manila
554
Gay Men's Support Group (GMSG)-Metro Manila

Gay United for Peace and Solidarity (GUPS)-Lanao del Norte
Iloilo City Gay Association-Iloilo City
Kabulig Writer's Group-Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA-Baguio City
Marikina Gay Association-Metro Manila
Metropolitan Community Church (MCC)-Metro Manila
Naga City Gay Association-Naga City
ONE BACARDI AaITCS
Order of St. Aelred (OSAe)-Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights),Inc.-Metro Manila
San Jose del Monte Gay Association-Bulacan
Sining Kayumanggi Royal Family-Rizal
Society of Transexual Women of the Philippines (STRAP)-Metro Manila
Soul Jive-Antipolo, Rizal
The Link-Davao City
Tayabas Gay Association-Quezon
Women's Bisexual Network-Metro Manila
Zamboanga Gay Association-Zamboanga City 23
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD
LGBT, it is no surprise that they found that petitioner had no presence in any of these
regions. In fact, if COMELEC's findings are to be believed, petitioner does not even exist
in Quezon City, which is registered as Ang Ladlad's principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from COMELEC's
moral objection and the belated allegation of non-existence, nowhere in the records has
the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list
organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong
Bayani. The difference, COMELEC claims, lies in Ang Ladlad's morality, or lack thereof.
Religion as the Basis for Refusal to
Accept Ang Ladlad's Petition for
555
Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting
an establishment of religion, or prohibiting the free exercise thereof." At bottom, what our
non-establishment clause calls for is "government neutrality in religious matters." 24
Clearly, "governmental reliance on religious justification is inconsistent with this policy of
neutrality." 25 We thus find that it was grave violation of the non-establishment clause for
the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should
depend, instead, on whether the COMELEC is able to advance some justification for its
rulings beyond mere conformity to religious doctrine. Otherwise stated, government must
act for secular purposes and in ways that have primarily secular effects. As we held in
Estrada v. Escritor: 26
...The morality referred to in the law is public and necessarily secular, not religious as the
dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate
may influence the civil public order but public moral disputes may be resolved only on
grounds articulable in secular terms." Otherwise, if government relies upon religious
beliefs in formulating public policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious programs or agenda. The nonbelievers would therefore be compelled to conform to a standard of conduct buttressed
by a religious belief, i.e., to a "compelled religion," anathema to religious freedom.
Likewise, if government based its actions upon religious beliefs, it would tacitly approve
or endorse that belief and thereby also tacitly disapprove contrary religious or nonreligious views that would not support the policy. As a result, government will not provide
full religious freedom for all its citizens, or even make it appear that those whose beliefs
are disapproved are second-class citizens.
In other words, government action, including its proscription of immorality as expressed
in criminal law like concubinage, must have a secular purpose. That is, the government
proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society" and not because the conduct
is proscribed by the beliefs of one religion or the other. Although admittedly, moral
judgments based on religion might have a compelling influence on those engaged in
public deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus have
religious opinions and moral codes with a compelling influence on them; the human mind
endeavors to regulate the temporal and spiritual institutions of society in a uniform
manner, harmonizing earth with heaven. Succinctly put, a law could be religious or
Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the religion clauses. . . .
Recognizing the religious nature of the Filipinos and the elevating influence of religion in
society, however, the Philippine constitution's religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that government must pursue its
secular goals and interests but at the same time strive to uphold religious liberty to the
greatest extent possible within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state interests. 27
Public Morals as a Ground to Deny
Ang Ladlad's Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and
homosexual conduct may be religion-based, it has long been transplanted into generally
accepted public morals. The COMELEC argues: aIcCTA
Petitioner's accreditation was denied not necessarily because their group consists of
LGBTs but because of the danger it poses to the people especially the youth. Once it is
recognized by the government, a sector which believes that there is nothing wrong in
having sexual relations with individuals of the same gender is a bad example. It will bring
556
down the standard of morals we cherish in our civilized society. Any society without a set
of moral precepts is in danger of losing its own existence. 28
We are not blind to the fact that, through the years, homosexual conduct, and perhaps
homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult
to imagine the reasons behind this censure religious beliefs, convictions about the
preservation of marriage, family, and procreation, even dislike or distrust of homosexuals
themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has
not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally
accepted public morals" have not been convincingly transplanted into the realm of law.
29
The Assailed Resolutions have not identified any specific overt immoral act performed by
Ang Ladlad. Even the OSG agrees that "there should have been a finding by the
COMELEC that the group's members have committed or are committing immoral acts."
30 The OSG argues:
...A person may be sexually attracted to a person of the same gender, of a different
gender, or more than one gender, but mere attraction does not translate to immoral acts.
There is a great divide between thought and action. Reduction ad absurdum. If immoral
thoughts could be penalized, COMELEC would have its hands full of disqualification
cases against both the "straights" and the gays." Certainly this is not the intendment of
the law. 31
Respondent has failed to explain what societal ills are sought to be prevented, or why
special protection is required for the youth. Neither has the COMELEC condescended to
justify its position that petitioner's admission into the party-list system would be so harmful
as to irreparably damage the moral fabric of society. We, of course, do not suggest that
the state is wholly without authority to regulate matters concerning morality, sexuality, and
sexual relations, and we recognize that the government will and should continue to restrict
behavior considered detrimental to society. Nonetheless, we cannot countenance
advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of
an argument or another, without bothering to go through the rigors of legal reasoning and
explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare
invocation of morality will not remove an issue from our scrutiny.
We also find the COMELEC's reference to purported violations of our penal and civil laws
flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as
"any act, omission, establishment, condition of property, or anything else which shocks,
defies, or disregards decency or morality," the remedies for which are a prosecution under
the Revised Penal Code or any local ordinance, a civil action, or abatement without
judicial proceedings. 32 A violation of Article 201 of the Revised Penal Code, on the other
hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly
needs to be emphasized that mere allegation of violation of laws is not proof, and a mere
blanket invocation of public morals cannot replace the institution of civil or criminal
proceedings and a judicial determination of liability or culpability. SDIaCT
As such, we hold that moral disapproval, without more, is not a sufficient governmental
interest to justify exclusion of homosexuals from participation in the party-list system. The
denial of Ang Ladlad's registration on purely moral grounds amounts more to a statement
of dislike and disapproval of homosexuals, rather than a tool to further any substantial
public interest. Respondent's blanket justifications give rise to the inevitable conclusion
that the COMELEC targets homosexuals themselves as a class, not because of any
particular morally reprehensible act. It is this selective targeting that implicates our equal
protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor
shall any person be denied equal protection of the laws," courts have never interpreted
the provision as an absolute prohibition on classification. "Equality," said Aristotle,
"consists in the same treatment of similar persons." 33 The equal protection clause
guarantees that no person or class of persons shall be deprived of the same protection
557
of laws which is enjoyed by other persons or other classes in the same place and in like
circumstances. 34
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the classification as long as it bears a rational
relationship to some legitimate government end. 35 In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas, 36 we declared that "[i]n our jurisdiction,
the standard of analysis of equal protection challenges . . . have followed the 'rational
basis' test, coupled with a deferential attitude to legislative classifications and a reluctance
to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution." 37
The COMELEC posits that the majority of the Philippine population considers homosexual
conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify
the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed
no such belief. No law exists to criminalize homosexual behavior or expressions or parties
about homosexual behavior. Indeed, even if we were to assume that public opinion is as
the COMELEC describes it, the asserted state interest here that is, moral disapproval
of an unpopular minority is not a legitimate state interest that is sufficient to satisfy
rational basis review under the equal protection clause. The COMELEC's differentiation,
and its unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of
legislation that would benefit the nation, furthers no legitimate state interest other than
disapproval of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender
have the same interest in participating in the party-list system on the same basis as other
political parties similarly situated. State intrusion in this case is equally burdensome.
Hence, laws of general application should apply with equal force to LGBTs, and they
deserve to participate in the party-list system on the same basis as other marginalized
and under-represented sectors.
It bears stressing that our finding that COMELEC's act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other
law distinguishing between heterosexuals and homosexuals under different
circumstances would similarly fail. We disagree with the OSG's position that homosexuals
are a class in themselves for the purposes of the equal protection clause. 38 We are not
prepared to single out homosexuals as a separate class meriting special or differentiated
treatment. We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely demanded that it
be recognized under the same basis as all other groups similarly situated, and that the
COMELEC made "an unwarranted and impermissible classification not justified by the
circumstances of the case."
Freedom of Expression and
Association
Under our system of laws, every group has the right to promote its agenda and attempt
to persuade society of the validity of its position through normal democratic means. 39 It
is in the public square that deeply held convictions and differing opinions should be
distilled and deliberated upon. As we held in Estrada v. Escritor: 40
In a democracy, this common agreement on political and moral ideas is distilled in the
public square. Where citizens are free, every opinion, every prejudice, every aspiration,
and every moral discernment has access to the public square where people deliberate
the order of their life together. Citizens are the bearers of opinion, including opinion
shaped by, or espousing religious belief, and these citizens have equal access to the
public square. In this representative democracy, the state is prohibited from determining
which convictions and moral judgments may be proposed for public deliberation. Through
a constitutionally designed process, the people deliberate and decide. Majority rule is a
necessary principle in this democratic governance. Thus, when public deliberation on
moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the
very act of adopting and accepting a constitution and the limits it specifies including
protection of religious freedom "not only for a minority, however small not only for a
558
majority, however large but for each of us" the majority imposes upon itself a selfdenying ordinance. It promises not to do what it otherwise could do: to ride roughshod
over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic
society, and this freedom applies not only to those that are favorably received but also to
those that offend, shock, or disturb. Any restriction imposed in this sphere must be
proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not
for the COMELEC or this Court to impose its views on the populace. Otherwise stated,
the COMELEC is certainly not free to interfere with speech for no better reason than
promoting an approved message or discouraging a disfavored one. aAcDSC
This position gains even more force if one considers that homosexual conduct is not illegal
in this country. It follows that both expressions concerning one's homosexuality and the
activity of forming a political association that supports LGBT individuals are protected as
well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public
perception that homosexual conduct violates public morality does not justify criminalizing
same-sex conduct. 41 European and United Nations judicial decisions have ruled in favor
of gay rights claimants on both privacy and equality grounds, citing general privacy and
equal protection provisions in foreign and international texts. 42 To the extent that there
is much to learn from other jurisdictions that have reflected on the issues we face here,
such jurisprudence is certainly illuminating. These foreign authorities, while not formally
binding on Philippine courts, may nevertheless have persuasive influence on the Court's
analysis.
In the area of freedom of expression, for instance, United States courts have ruled that
existing free speech doctrines protect gay and lesbian rights to expressive conduct. In
order to justify the prohibition of a particular expression of opinion, public institutions must
show that their actions were caused by "something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint." 43
With respect to freedom of association for the advancement of ideas and beliefs, in
Europe, with its vibrant human rights tradition, the European Court of Human Rights
(ECHR) has repeatedly stated that a political party may campaign for a change in the law
or the constitutional structures of a state if it uses legal and democratic means and the
changes it proposes are consistent with democratic principles. The ECHR has
emphasized that political ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity of expression
through the exercise of the right of association, even if such ideas may seem shocking or
unacceptable to the authorities or the majority of the population. 44 A political group
should not be hindered solely because it seeks to publicly debate controversial political
issues in order to find solutions capable of satisfying everyone concerned. 45 Only if a
political party incites violence or puts forward policies that are incompatible with
democracy does it fall outside the protection of the freedom of association guarantee. 46
We do not doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant. They are entitled to hold and express that view. On
the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that
relationships between individuals of the same sex are morally equivalent to heterosexual
relationships. They, too, are entitled to hold and express that view. However, as far as
this Court is concerned, our democracy precludes using the religious or moral views of
one part of the community to exclude from consideration the values of other members of
the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights
litigants. It well may be that this Decision will only serve to highlight the discrepancy
between the rigid constitutional analysis of this Court and the more complex moral
sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal,
reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt
nor expect to affect individual perceptions of homosexuality through this Decision.
559
The OSG argues that since there has been neither prior restraint nor subsequent
punishment imposed on Ang Ladlad, and its members have not been deprived of their
right to voluntarily associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly denied.
[COMELEC] simply exercised its authority to review and verify the qualifications of
petitioner as a sectoral party applying to participate in the party-list system. This lawful
exercise of duty cannot be said to be a transgression of Section 4, Article III of the
Constitution.
xxx xxx xxx
A denial of the petition for registration ...does not deprive the members of the petitioner
to freely take part in the conduct of elections. Their right to vote will not be hampered by
said denial. In fact, the right to vote is a constitutionally-guaranteed right which cannot be
limited.
As to its right to be elected in a genuine periodic election, petitioner contends that the
denial of Ang Ladlad's petition has the clear and immediate effect of limiting, if not
outrightly nullifying the capacity of its members to fully and equally participate in public
life through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right but a privilege subject
to limitations imposed by law. ...47
The OSG fails to recall that petitioner has, in fact, established its qualifications to
participate in the party-list system, and as advanced by the OSG itself the moral
objection offered by the COMELEC was not a limitation imposed by law. To the extent,
therefore, that the petitioner has been precluded, because of COMELEC's action, from
publicly expressing its views as a political party and participating on an equal basis in the
political process with other equally-qualified party-list candidates, we find that there has,
indeed, been a transgression of petitioner's fundamental rights.
Non-Discrimination and International
Law
In an age that has seen international law evolve geometrically in scope and promise,
international human rights law, in particular, has grown dynamically in its attempt to bring
about a more just and humane world order. For individuals and groups struggling with
inadequate structural and governmental support, international human rights norms are
particularly significant, and should be effectively enforced in domestic legal systems so
that such norms may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and
promote human rights. In particular, we explicitly recognize the principle of nondiscrimination as it relates to the right to electoral participation, enunciated in the UDHR
and the ICCPR. SIaHDA
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general application
relating to elections be applied equally to all persons, regardless of sexual orientation.
Although sexual orientation is not specifically enumerated as a status or ratio for
discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has
560
opined that the reference to "sex" in Article 26 should be construed to include "sexual
orientation." 48 Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various
international agreements. 49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through
freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression
of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral
participation is elaborated by the Human Rights Committee in its General Comment No.
25 (Participation in Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part
in the conduct of public affairs, the right to vote and to be elected and the right to have
access to public service. Whatever form of constitution or government is in force, the
Covenant requires States to adopt such legislative and other measures as may be
necessary to ensure that citizens have an effective opportunity to enjoy the rights it
protects. Article 25 lies at the core of democratic government based on the consent of the
people and in conformity with the principles of the Covenant.
xxx xxx xxx
15. The effective implementation of the right and the opportunity to stand for elective office
ensures that persons entitled to vote have a free choice of candidates. Any restrictions
on the right to stand for election, such as minimum age, must be justifiable on objective
and reasonable criteria. Persons who are otherwise eligible to stand for election should
not be excluded by unreasonable or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No person should suffer
discrimination or disadvantage of any kind because of that person's candidacy. States
parties should indicate and explain the legislative provisions which exclude any group or
category of persons from elective office. 50
We stress, however, that although this Court stands willing to assume the responsibility
of giving effect to the Philippines' international law obligations, the blanket invocation of
international law is not the panacea for all social ills. We refer now to the petitioner's
invocation of the Yogyakarta Principles (the Application of International Human Rights
Law In Relation to Sexual Orientation and Gender Identity), 51 which petitioner declares
to reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain
norms that are obligatory on the Philippines. There are declarations and obligations
outlined in said Principles which are not reflective of the current state of international law,
561
and do not find basis in any of the sources of international law enumerated under Article
38 (1) of the Statute of the International Court of Justice. 52 Petitioner has not undertaken
any objective and rigorous analysis of these alleged principles of international law to
ascertain their true status. ATDHSC
We also hasten to add that not everything that society or a certain segment of society
wants or demands is automatically a human right. This is not an arbitrary human
intervention that may be added to or subtracted from at will. It is unfortunate that much of
what passes for human rights today is a much broader context of needs that identifies
many social desires as rights in order to further claims that international law obliges states
to sanction these innovations. This has the effect of diluting real human rights, and is a
result of the notion that if "wants" are couched in "rights" language, then they are no longer
controversial.
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are at best de lege
ferenda and do not constitute binding obligations on the Philippines. Indeed, so much
of contemporary international law is characterized by the "soft law" nomenclature, i.e.,
international law is full of principles that promote international cooperation, harmony, and
respect for human rights, most of which amount to no more than well-meaning desires,
without the support of either State practice or opinio juris. 53
As a final note, we cannot help but observe that the social issues presented by this case
are emotionally charged, societal attitudes are in flux, even the psychiatric and religious
communities are divided in opinion. This Court's role is not to impose its own view of
acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can,
uninfluenced by public opinion, and confident in the knowledge that our democracy is
resilient enough to withstand vigorous debate.
WHEREFORE,the Petition is hereby GRANTED.The Resolutions of the Commission on
Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are
hereby SET ASIDE.The Commission on Elections is directed to GRANT petitioner's
application for party-list accreditation.
SO ORDERED.
Puno, C.J.,Carpio, Velasco, Jr.,Leonardo-de Castro, Bersamin, Villarama, Jr.,Perezand
Mendoza, JJ., concur.
Corona, J., Pls. see dissenting opinion.
Carpio Morales, Nachura and Peralta, JJ., join concurring opinion of J. Abad.
Brion, J., joins dissent of J. Corona.
Abad, J., I certify that J. Abad wrote a separate concurring opinion.
||| (Ang Ladlad LGBT Party v. Commission on Elections, G.R. No. 190582, [April 8, 2010],
632 PHIL 32-142)
3.
Social Equality Art. XIII, Sec. 1
Annotation SOCIAL JUSTICE 645 SCRA 401 (2011)

Constitutional Law; Social Justice; Never is it justified to give preference to the poor simply
because they are poor, or to reject the rich simply because they are rich, for justice must
always be served for poor and rich alike, according to the mandate of the law.It is true
that, in case of reasonable doubt, the Court is called upon to tilt the balance in favor of
the poor to whom the Constitution fittingly extends its sympathy and compassion. But
never is it justified to give preference to the poor simply because they are poor, or to reject
the rich simply because they are rich, for justice must always be served for poor and rich
alike, according to the mandate of the law. Vigilance over the rights of the landowners is
equally important because social justice cannot be invoked to trample on the rights of
property owners, who under our Constitution and laws are also entitled to protection.
(Buklod nang Magbubukid sa Lupaing Ramos, Inc. vs. E.M. Ramos and Sons, Inc., 645
SCRA 401, G.R. No.
131481 March 16, 2011)
562
4.
OTHER CASES
1. TRILLANES VS. PIMENTEL 556 SCRA 471
EN BANC
[G.R. No. 179817. June 27, 2008.]
ANTONIO F. TRILLANES IV, petitioner, vs. HON. OSCAR PIMENTEL, SR., IN HIS
CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT-BRANCH 148, MAKATI
CITY; GEN. HERMOGENES ESPERON, VICE ADM. ROGELIO I. CALUNSAG, MGEN.
BENJAMIN DOLORFINO, AND LT. COL. LUCIARDO OBEA, respondents.
DECISION
CARPIO-MORALES, J p:
At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers led
by junior officers of the Armed Forces of the Philippines (AFP) stormed into the Oakwood
Premier Apartments in Makati City and publicly demanded the resignation of the
President and key national officials. SICDAa
Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427 and
General Order No. 4 declaring a state of rebellion and calling out the Armed Forces to
suppress the rebellion. 1 A series of negotiations quelled the teeming tension and
eventually resolved the impasse with the surrender of the militant soldiers that evening.
In the aftermath of this eventful episode dubbed as the "Oakwood Incident", petitioner
Antonio F. Trillanes IV was charged, along with his comrades, with coup d'etat defined
under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC) of
Makati. The case was docketed as Criminal Case No. 03-2784, "People v. Capt. Milo D.
Maestrecampo, et al."
Close to four years later, petitioner, who has remained in detention, 2 threw his hat in the
political arena and won a seat in the Senate with a six-year term commencing at noon on
June 30, 2007. 3
Before the commencement of his term or on June 22, 2007, petitioner filed with the RTC,
Makati City, Branch 148, an "Omnibus Motion for Leave of Court to be Allowed to Attend
Senate Sessions and Related Requests" 4 (Omnibus Motion). Among his requests were:
ITcCaS
(a) To be allowed to go to the Senate to attend all official functions of the Senate (whether
at the Senate or elsewhere) particularly when the Senate is in session, and to attend the
regular and plenary sessions of the Senate, committee hearings, committee meetings,
consultations, investigations and hearings in aid of legislation, caucuses, staff meetings,
etc., which are normally held at the Senate of the Philippines located at the GSIS Financial
Center, Pasay City (usually from Mondays to Thursdays from 8:00 a.m. to 7:00 p.m.);
(b) To be allowed to set up a working area at his place of detention at the Marine Brig,
Marine Barracks Manila, Fort Bonifacio, Taguig City, with a personal desktop computer
and the appropriate communications equipment (i.e., a telephone line and internet
access) in order that he may be able to work there when there are no sessions, meetings
or hearings at the Senate or when the Senate is not in session. The costs of setting up
the said working area and the related equipment and utility costs can be charged against
the budget/allocation of the Office of the accused from the Senate; AEIHCS
563
(c) To be allowed to receive members of his staff at the said working area at his place of
detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, at
reasonable times of the day particularly during working days for purposes of meetings,
briefings, consultations and/or coordination, so that the latter may be able to assists (sic)
him in the performance and discharge of his duties as a Senator of the Republic;
(d) To be allowed to give interviews and to air his comments, reactions and/or opinions
to the press or the media regarding the important issues affecting the country and the
public while at the Senate or elsewhere in the performance of his duties as Senator to
help shape public policy and in the light of the important role of the Senate in maintaining
the system of checks and balance between the three (3) co-equal branches of
Government;
(e) With prior notice to the Honorable Court and to the accused and his custodians, to be
allowed to receive, on Tuesdays and Fridays, reporters and other members of the media
who may wish to interview him and/or to get his comments, reactions and/or opinion at
his place of confinement at the Marine Brig, Marine Barracks Manila, Fort Bonifacio,
Taguig City, particularly when there are no sessions, meetings or hearings at the Senate
or when the Senate is not in session; and ScCIaA
(f) To be allowed to attend the organizational meeting and election of officers of the
Senate and related activities scheduled in the morning (9:00 or 10:00 a.m.) of 23 July
2007 at the Senate of the Philippines located at the GSIS Financial Center, Pasay City.
5
By Order of July 25, 2007, 6 the trial court denied all the requests in the Omnibus Motion.
Petitioner moved for reconsideration in which he waived his requests in paragraphs (b),
(c) and (f) to thus trim them down to three. 7 The trial court just the same denied the
motion by Order of September 18, 2007. 8
Hence, the present petition for certiorari to set aside the two Orders of the trial court, and
for prohibition and mandamus to (i) enjoin respondents from banning the Senate staff,
resource persons and guests from meeting with him or transacting business with him in
his capacity as Senator; and (ii) direct respondents to allow him access to the Senate
staff, resource persons and guests and permit him to attend all sessions and official
functions of the Senate. Petitioner preliminarily prayed for the maintenance of the status
quo ante of having been able hitherto to convene his staff, resource persons and guests
9 at the Marine Brig. CETDHA
Impleaded as co-respondents of Judge Oscar Pimentel, Sr. are AFP Chief of Staff, Gen.
Hermogenes Esperon (Esperon); Philippine Navy's Flag Officer-in-Command, Vice
Admiral Rogelio Calunsag; Philippine Marines' Commandant, Major Gen. Benjamin
Dolorfino; and Marine Barracks Manila Commanding Officer, Lt. Col. Luciardo Obea
(Obea).
Petitioner later manifested, in his Reply of February 26, 2008, that he has, since
November 30, 2007, been in the custody of the Philippine National Police (PNP) Custodial
Center following the foiled take-over of the Manila Peninsula Hotel 10 the day before or
on November 29, 2007.
Such change in circumstances thus dictates the discontinuation of the action as against
the above-named military officers-respondents. The issues raised in relation to them had
ceased to present a justiciable controversy, so that a determination thereof would be
without practical value and use. Meanwhile, against those not made parties to the case,
petitioner cannot ask for reliefs from this Court. 11 Petitioner did not, by way of
substitution, implead the police officers currently exercising custodial responsibility over
564
him; and he did not satisfactorily show that they have adopted or continued the assailed
actions of the former custodians. 12 CTEaDc
Petitioner reiterates the following grounds which mirror those previously raised in his
Motion for Reconsideration filed with the trial court:
I.
THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS CLEARLY
INAPPLICABLE TO THE INSTANT CASE BECAUSE OF THE FOLLOWING REASONS:
A.
UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS CASE WAS ALREADY
CONVICTED AT THE TIME HE FILED HIS MOTION. IN THE INSTANT CASE,
ACCUSED/PETITIONER HAS NOT BEEN CONVICTED AND, THEREFORE, STILL
ENJOYS THE PRESUMPTION OF INNOCENCE; cDTaSH
B.
THE ACCUSED IN THE JALOJOS (SIC) CASE WAS CHARGED WITH TWO (2)
COUNTS OF STATUTORY RAPE AND SIX (6) COUNTS OF ACTS OF
LASCIVIOUSNESS, CRIMES INVOLVING MORAL TURPITUDE. HEREIN
ACCUSED/PETITIONER IS CHARGED WITH THE OFFENSE OF "COUP D'ETAT", A
CHARGE WHICH IS COMMONLY REGARDED AS A POLITICAL OFFENSE;
C.
THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO FLEE PRIOR TO BEING
ARRESTED. THE ACCUSED/PETITIONER VOLUNTARILY SURRENDERED TO THE
AUTHORITIES AND AGREED TO TAKE RESPONSIBILITY FOR HIS ACTS AT
OAKWOOD;
II.
GEN. ESPERON DID NOT OVERRULE THE RECOMMENDATION OF THE MARINE
BRIG'S COMMANDING OFFICER TO ALLOW PETITIONER TO ATTEND THE SENATE
SESSIONS; TIHCcA
III.
ACCUSED/PETITIONER SUBMITS THAT THE FACT THAT THE PEOPLE, IN THEIR
SOVEREIGN CAPACITY, ELECTED HIM TO THE POSITION OF SENATOR OF THE
REPUBLIC PROVIDES THE PROPER LEGAL JUSTIFICATION TO ALLOW HIM TO
WORK AND SERVE HIS MANDATE AS A SENATOR;
- AND IV.
MOREOVER, THERE ARE ENOUGH PRECEDENTS TO ALLOW LIBERAL
TREATMENT OF DETENTION PRISONERS WHO ARE HELD WITHOUT BAIL AS IN
THE CASE OF FORMER PRESIDENT JOSEPH "ERAP" ESTRADA AND FORMER
ARMM GOV. NUR MISUARI. 13 HSaCcE
The petition is bereft of merit.
565
In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly
points out that former Rep. Romeo Jalosjos (Jalosjos) was already convicted, albeit his
conviction was pending appeal, when he filed a motion similar to petitioner's Omnibus
Motion, whereas he (petitioner) is a mere detention prisoner. He asserts that he continues
to enjoy civil and political rights since the presumption of innocence is still in his favor.
Further, petitioner illustrates that Jalosjos was charged with crimes involving moral
turpitude, i.e., two counts of statutory rape and six counts of acts of lasciviousness,
whereas he is indicted for coup d'etat which is regarded as a "political offense".
Furthermore, petitioner justifies in his favor the presence of noble causes in expressing
legitimate grievances against the rampant and institutionalized practice of graft and
corruption in the AFP. CASaEc
In sum, petitioner's first ground posits that there is a world of difference between his case
and that of Jalosjos respecting the type of offense involved, the stage of filing of the
motion, and other circumstances which demonstrate the inapplicability of Jalosjos. 14
A plain reading of Jalosjos suggests otherwise, however.
The distinctions cited by petitioner were not elemental in the pronouncement in Jalosjos
that election to Congress is not a reasonable classification in criminal law enforcement as
the functions and duties of the office are not substantial distinctions which lift one from
the class of prisoners interrupted in their freedom and restricted in liberty of movement.
15
It cannot be gainsaid that a person charged with a crime is taken into custody for purposes
of the administration of justice. No less than the Constitution provides:
All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or
be released on recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. Excessive
bail shall not be required. 16 (Underscoring supplied) ASTDCH
The Rules also state that no person charged with a capital offense, 17 or an offense
punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal action. 18
That the cited provisions apply equally to rape and coup d'etat cases, both being
punishable by reclusion perpetua, 19 is beyond cavil. Within the class of offenses covered
by the stated range of imposable penalties, there is clearly no distinction as to the political
complexion of or moral turpitude involved in the crime charged.
In the present case, it is uncontroverted that petitioner's application for bail and for release
on recognizance was denied. 20 The determination that the evidence of guilt is strong,
whether ascertained in a hearing of an application for bail 21 or imported from a trial
court's judgment of conviction, 22 justifies the detention of an accused as a valid
curtailment of his right to provisional liberty. This accentuates the proviso that the denial
of the right to bail in such cases is "regardless of the stage of the criminal action." Such
justification for confinement with its underlying rationale of public self-defense 23 applies
equally to detention prisoners like petitioner or convicted prisoners-appellants like
Jalosjos. TEDaAc
566
As the Court observed in Alejano v. Cabuay, 24 it is impractical to draw a line between

convicted prisoners and pre-trial detainees for the purpose of maintaining jail security;
and while pre-trial detainees do not forfeit their constitutional rights upon confinement, the
fact of their detention makes their rights more limited than those of the public.
The Court was more emphatic in People v. Hon. Maceda: 25
As a matter of law, when a person indicted for an offense is arrested, he is deemed placed
under the custody of the law. He is placed in actual restraint of liberty in jail so that he
may be bound to answer for the commission of the offense. He must be detained in jail
during the pendency of the case against him, unless he is authorized by the court to be
released on bail or on recognizance. Let it be stressed that all prisoners whether under
preventive detention or serving final sentence can not practice their profession nor
engage in any business or occupation, or hold office, elective or appointive, while in
detention. This is a necessary consequence of arrest and detention. 26 (Underscoring
supplied) ADaEIH
These inherent limitations, however, must be taken into account only to the extent that
confinement restrains the power of locomotion or actual physical movement. It bears
noting that in Jalosjos, which was decided en banc one month after Maceda, the Court
recognized that the accused could somehow accomplish legislative results. 27
The trial court thus correctly concluded that the presumption of innocence does not carry
with it the full enjoyment of civil and political rights.
Petitioner is similarly situated with Jalosjos with respect to the application of the
presumption of innocence during the period material to the resolution of their respective
motions. The Court in Jalosjos did not mention that the presumption of innocence no
longer operates in favor of the accused pending the review on appeal of the judgment of
conviction. The rule stands that until a promulgation of final conviction is made, the
constitutional mandate of presumption of innocence prevails. 28
In addition to the inherent restraints, the Court notes that petitioner neither denied nor
disputed his agreeing to a consensus with the prosecution that media access to him
should cease after his proclamation by the Commission on Elections. 29 aSCHcA
Petitioner goes on to allege that unlike Jalosjos who attempted to evade trial, he is not a
flight risk since he voluntarily surrendered to the proper authorities and such can be
proven by the numerous times he was allowed to travel outside his place of detention.
Subsequent events reveal the contrary, however. The assailed Orders augured well when
on November 29, 2007 petitioner went past security detail for some reason and
proceeded from the courtroom to a posh hotel to issue certain statements. The account,
dubbed this time as the "Manila Pen Incident", 30 proves that petitioner's argument bites
the dust. The risk that he would escape ceased to be neither remote nor nil as, in fact,
the cause for foreboding became real.
Moreover, circumstances indicating probability of flight find relevance as a factor in
ascertaining the reasonable amount of bail and in canceling a discretionary grant of bail.
31 In cases involving non-bailable offenses, what is controlling is the determination of
whether the evidence of guilt is strong. Once it is established that it is so, bail shall be
denied as it is neither a matter of right nor of discretion. 32 HTIEaS
Petitioner cannot find solace in Montano v. Ocampo 33 to buttress his plea for leeway
because unlike petitioner, the therein petitioner, then Senator Justiniano Montano, who
was charged with multiple murder and multiple frustrated murder, 34 was able to rebut
the strong evidence for the prosecution. Notatu dignum is this Court's pronouncement
567
therein that "if denial of bail is authorized in capital cases, it is only on the theory that the
proof being strong, the defendant would flee, if he has the opportunity, rather than face
the verdict of the jury." 35 At the time Montano was indicted, when only capital offenses
were non-bailable where evidence of guilt is strong, 36 the Court noted the obvious
reason that "one who faces a probable death sentence has a particularly strong
temptation to flee." 37 Petitioner's petition for bail having earlier been denied, he cannot
rely on Montano to reiterate his requests which are akin to bailing him out.
Second, petitioner posits that, contrary to the trial court's findings, Esperon did not
overrule Obea's recommendation to allow him to attend Senate sessions. Petitioner
cites the Comment 38 of Obea that he interposed no objection to such request but
recommended that he be transported by the Senate Sergeant-at-Arms with adequate
Senate security. And petitioner faults the trial court for deeming that Esperon, despite
professing non-obstruction to the performance of petitioner's duties, flatly rejected all his
requests, when what Esperon only disallowed was the setting up of a political office inside
a military installation owing to AFP's a political nature. 39 HAaDTE
The effective management of the detention facility has been recognized as a valid
objective that may justify the imposition of conditions and restrictions of pre-trial detention.
40 The officer with custodial responsibility over a detainee may undertake such
reasonable measures as may be necessary to secure the safety and prevent the escape
of the detainee. 41 Nevertheless, while the comments of the detention officers provide
guidance on security concerns, they are not binding on the trial court in the same manner
that pleadings are not impositions upon a court.
Third, petitioner posits that his election provides the legal justification to allow him to serve
his mandate, after the people, in their sovereign capacity, elected him as Senator. He
argues that denying his Omnibus Motion is tantamount to removing him from office,
depriving the people of proper representation, denying the people's will, repudiating the
people's choice, and overruling the mandate of the people.
Petitioner's contention hinges on the doctrine in administrative law that "a public official
can not be removed for administrative misconduct committed during a prior term, since
his re-election to office operates as a condonation of the officer's previous misconduct to
the extent of cutting off the right to remove him therefor." 42 aCSDIc
The assertion is unavailing. The case against petitioner is not administrative in nature.
And there is no "prior term" to speak of. In a plethora of cases, 43 the Court categorically
held that the doctrine of condonation does not apply to criminal cases. Election, or more
precisely, re-election to office, does not obliterate a criminal charge. Petitioner's electoral
victory only signifies pertinently that when the voters elected him to the Senate, "they did
so with full awareness of the limitations on his freedom of action [and] . . . with the
knowledge that he could achieve only such legislative results which he could accomplish
within the confines of prison." 44
In once more debunking the disenfranchisement argument, 45 it is opportune to wipe out
the lingering misimpression that the call of duty conferred by the voice of the people is
louder than the litany of lawful restraints articulated in the Constitution and echoed by
jurisprudence. The apparent discord may be harmonized by the overarching tenet that
the mandate of the people yields to the Constitution which the people themselves
ordained to govern all under the rule of law.
The performance of legitimate and even essential duties by public officers has never been
an excuse to free a person validly in prison. The duties imposed by the "mandate of the
people" are multifarious. The accused-appellant asserts that the duty to legislate ranks
highest in the hierarchy of government. The accused-appellant is only one of 250
members of the House of Representatives, not to mention the 24 members of the Senate,
568
charged with the duties of legislation. Congress continues to function well in the physical
absence of one or a few of its members. . . . Never has the call of a particular duty lifted
a prisoner into a different classification from those others who are validly restrained by
law. 46 (Underscoring supplied) aECTcA
Lastly, petitioner pleads for the same liberal treatment accorded certain detention
prisoners who have also been charged with non-bailable offenses, like former President
Joseph Estrada and former Governor Nur Misuari who were allowed to attend "social
functions." Finding no rhyme and reason in the denial of the more serious request to
perform the duties of a Senator, petitioner harps on an alleged violation of the equal
protection clause.
In arguing against maintaining double standards in the treatment of detention prisoners,
petitioner expressly admits that he intentionally did not seek preferential treatment in the
form of being placed under Senate custody or house arrest, 47 yet he at the same time,
gripes about the granting of house arrest to others.
Emergency or compelling temporary leaves from imprisonment are allowed to all
prisoners, at the discretion of the authorities or upon court orders. 48 That this discretion
was gravely abused, petitioner failed to establish. In fact, the trial court previously allowed
petitioner to register as a voter in December 2006, file his certificate of candidacy in
February 2007, cast his vote on May 14, 2007, be proclaimed as senator-elect, and take
his oath of office 49 on June 29, 2007. In a seeming attempt to bind or twist the hands of
the trial court lest it be accused of taking a complete turn-around, 50 petitioner largely
banks on these prior grants to him and insists on unending concessions and blanket
authorizations. CSEHcT
Petitioner's position fails. On the generality and permanence of his requests alone,
petitioner's case fails to compare with the species of allowable leaves. Jaloslos succinctly
expounds:
. . . Allowing accused-appellant to attend congressional sessions and committee meetings
for five (5) days or more in a week will virtually make him a free man with all the privileges
appurtenant to his position. Such an aberrant situation not only elevates accusedappellant's status to that of a special class, it also would be a mockery of the purposes of
the correction system. 51
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Azcuna,
Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de Castro and Brion, JJ.,
concur.
||| (Trillanes IV v. Pimentel, Sr., G.R. No. 179817, [June 27, 2008], 578 PHIL 1002-1021)
2. SORIANO VS. LAGUARDIA 587 SCRA 79 (2009)
EN BANC
[G.R. No. 164785. April 29, 2009.]
ELISEO F. SORIANO, petitioner,vs.MA. CONSOLIZA P. LAGUARDIA, in her capacity as
Chairperson of the Movie and Television Review and Classification Board, MOVIE AND
569
TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON,

ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO
SORIANO, BERNABE S. YARIA, JR.,MICHAEL M. SANDOVAL, and ROLDAN A.
GAVINO, respondents.
[G.R. No. 165636. April 29, 2009.]
ELISEO F. SORIANO,petitioner, vs. MOVIE AND TELEVISION REVIEW AND
CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO, NOEL R.
DEL PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C.
ROUS, in their capacity as members of the Hearing and Adjudication Committee of the
MTRCB, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ,
JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR.,MICHAEL M.
SANDOVAL, and ROLDAN A. GAVINO, in their capacity as complainants before the
MTRCB,respondents.
DECISION
VELASCO, JR.,J p:
In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F.
Soriano seeks to nullify and set aside an order and a decision of the Movie and Television
Review and Classification Board (MTRCB) in connection with certain utterances he made
in his television show, Ang Dating Daan.
Facts of the Case
On August 10, 2004, at around 10:00 p.m.,petitioner, as host of the program Ang Dating
Daan, aired on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae
ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di
ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae
yan. Sobra ang kasinungalingan ng mga demonyong ito. 1 ...
Two days after, before the MTRCB, separate but almost identical affidavit-complaints
were lodged by Jessie L. Galapon and seven other private respondents, all members of
the Iglesia ni Cristo (INC), 2 against petitioner in connection with the above broadcast.
Respondent Michael M. Sandoval, who felt directly alluded to in petitioner's remark, was
then a minister of INC and a regular host of the TV program Ang Tamang Daan. 3
Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in
relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang
Dating Daan. 4 cDAISC
After a preliminary conference in which petitioner appeared, the MTRCB, by Order of
August 16, 2004, preventively suspended the showing of Ang Dating Daan program for
20 days, in accordance with Section 3 (d) of Presidential Decree No. (PD) 1986, creating
the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and
Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure. 5
The same order also set the case for preliminary investigation.
The following day, petitioner sought reconsideration of the preventive suspension order,
praying that Chairperson Consoliza P. Laguardia and two other members of the
adjudication board recuse themselves from hearing the case. 6 Two days after, however,
petitioner sought to withdraw 7 his motion for reconsideration, followed by the filing with
this Court of a petition for certiorari and prohibition, 8 docketed as G.R. No. 164785, to
nullify the preventive suspension order thus issued.
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision,
disposing as follows:
570
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding

respondent Soriano liable for his utterances and thereby imposing on him a penalty of
three (3) months suspension from his program, "Ang Dating Daan".
Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner,
PBC, are hereby exonerated for lack of evidence.
SO ORDERED. 9
Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive
relief, docketed as G.R. No. 165636.
In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R.
No. 165636.
In G.R. No. 164785, petitioner raises the following issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT
[MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG
DATING DAAN ...IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE
ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;
(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION. 10
In G.R. No. 165636, petitioner relies on the following grounds:
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED
WITHOUT OR IN EXCESS OF JURISDICTION ...CONSIDERING THAT:
I
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON
THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND
EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT
PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING
RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF
THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT BENCH; SEcADa
II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON
THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL
PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR],RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO,
I.E.,DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER
2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT
BENCH; AND
III
571
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A
SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN
UNDUE DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT
PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS.
CONSEQUENTLY, THE [IRR],RULES OF PROCEDURE, AND OFFICIAL ACTS OF
THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT BENCH 11
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of
preventive suspension, although its implementability had already been overtaken and
veritably been rendered moot by the equally assailed September 27, 2004 decision.
It is petitioner's threshold posture that the preventive suspension imposed against him
and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not
expressly authorize the MTRCB to issue preventive suspension.
Petitioner's contention is untenable.
Administrative agencies have powers and functions which may be administrative,
investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may
be conferred by the Constitution or by statute. 12 They have in fine only such powers or
authority as are granted or delegated, expressly or impliedly, by law. 13 And in
determining whether an agency has certain powers, the inquiry should be from the law
itself. But once ascertained as existing, the authority given should be liberally construed.
14
A perusal of the MTRCB's basic mandate under PD 1986 reveals the possession by the
agency of the authority, albeit impliedly, to issue the challenged order of preventive
suspension. And this authority stems naturally from, and is necessary for the exercise of,
its power of regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the following:
Section 3. Powers and Functions. The BOARD shall have the following functions,
powers and duties:
xxx xxx xxx
c) To approve or disapprove, delete objectionable portions from and/or prohibit the
...production, ...exhibition and/or television broadcast of the motion pictures, television
programs and publicity materials subject of the preceding paragraph, which, in the
judgment of the board applying contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to law and/or good customs, injurious
to the prestige of the Republic of the Philippines or its people, or with a dangerous
tendency to encourage the commission of violence or of wrong or crime such as but not
limited to:
xxx xxx xxx
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;
xxx xxx xxx
(d) To supervise, regulate, and grant, deny or cancel, permits for the ...production,
copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be ...produced, copied, reproduced,
distributed, sold, leased, exhibited and/or broadcast by television;
xxx xxx xxx
572
k) To exercise such powers and functions as may be necessary or incidental to the

attainment of the purposes and objectives of this Act ....(Emphasis added.)
The issuance of a preventive suspension comes well within the scope of the MTRCB's
authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3
(d), as quoted above, which empowers the MTRCB to "supervise, regulate, and grant,
deny or cancel, permits for the . . . exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be . . . exhibited and/or broadcast by
television".
Surely, the power to issue preventive suspension forms part of the MTRCB's express
regulatory and supervisory statutory mandate and its investigatory and disciplinary
authority subsumed in or implied from such mandate. Any other construal would render
its power to regulate, supervise, or discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a
preliminary step in an administrative investigation. 15 And the power to discipline and
impose penalties, if granted, carries with it the power to investigate administrative
complaints and, during such investigation, to preventively suspend the person subject of
the complaint. 16 ECaTDc
To reiterate, preventive suspension authority of the MTRCB springs from its powers
conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself
to impose preventive suspension through the medium of the IRR of PD 1986. It is true
that the matter of imposing preventive suspension is embodied only in the IRR of PD
1986. Sec. 3, Chapter XIII of the IRR provides:
Sec. 3. PREVENTIVE SUSPENSION ORDER. Any time during the pendency of the
case, and in order to prevent or stop further violations or for the interest and welfare of
the public, the Chairman of the Board may issue a Preventive Suspension Order
mandating the preventive ...suspension of the permit/permits involved, and/or closure of
the ...television network, cable TV station ...provided that the temporary/preventive order
thus issued shall have a life of not more than twenty (20) days from the date of issuance.
But the mere absence of a provision on preventive suspension in PD 1986, without more,
would not work to deprive the MTRCB a basic disciplinary tool, such as preventive
suspension. Recall that the MTRCB is expressly empowered by statute to regulate and
supervise television programs to obviate the exhibition or broadcast of, among others,
indecent or immoral materials and to impose sanctions for violations and, corollarily, to
prevent further violations as it investigates. Contrary to petitioner's assertion, the
aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the
law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its
authority under the law. Far from it. The preventive suspension was actually done in
furtherance of the law, imposed pursuant, to repeat, to the MTRCB's duty of regulating or
supervising television programs, pending a determination of whether or not there has
actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely
formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.
Sec. 3 (c) and (d) of PD 1986 finds application to the present case, sufficient to authorize
the MTRCB's assailed action. Petitioner's restrictive reading of PD 1986, limiting the
MTRCB to functions within the literal confines of the law, would give the agency little
leeway to operate, stifling and rendering it inutile, when Sec. 3 (k) of PD 1986 clearly
intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3 (k), we
reiterate, provides, "To exercise such powers and functions as may be necessary or
incidental to the attainment of the purposes and objectives of this Act . . .." Indeed, the
power to impose preventive suspension is one of the implied powers of MTRCB. As
distinguished from express powers, implied powers are those that can be inferred or are
implicit in the wordings or conferred by necessary or fair implication of the enabling act.
573
17 As we held in Angara v. Electoral Commission, when a general grant of power is

conferred or a duty enjoined, every particular power necessary for the exercise of one or
the performance of the other is also conferred by necessary implication. 18 Clearly, the
power to impose preventive suspension pending investigation is one of the implied or
inherent powers of MTRCB.
We cannot agree with petitioner's assertion that the aforequoted IRR provision on
preventive suspension is applicable only to motion pictures and publicity materials. The
scope of the MTRCB's authority extends beyond motion pictures. What the acronym
MTRCB stands for would suggest as much. And while the law makes specific reference
to the closure of a television network, the suspension of a television program is a far less
punitive measure that can be undertaken, with the purpose of stopping further violations
of PD 1986. Again, the MTRCB would regretfully be rendered ineffective should it be
subject to the restrictions petitioner envisages.
Just as untenable is petitioner's argument on the nullity of the preventive suspension
order on the ground of lack of hearing. As it were, the MTRCB handed out the assailed
order after petitioner, in response to a written notice, appeared before that Board for a
hearing on private respondents' complaint. No less than petitioner admitted that the order
was issued after the adjournment of the hearing, 19 proving that he had already appeared
before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive
suspension shall issue "[a]ny time during the pendency of the case". In this particular
case, it was done after MTRCB duly apprised petitioner of his having possibly violated
PD 1986 20 and of administrative complaints that had been filed against him for such
violation. 21
At any event, that preventive suspension can validly be meted out even without a hearing.
22
Petitioner next faults the MTRCB for denying him his right to the equal protection of the
law, arguing that, owing to the preventive suspension order, he was unable to answer the
criticisms coming from the INC ministers.
Petitioner's position does not persuade. The equal protection clause demands that "all
persons subject to legislation should be treated alike, under like circumstances and
conditions both in the privileges conferred and liabilities imposed". 23 It guards against
undue favor and individual privilege as well as hostile discrimination. 24 Surely, petitioner
cannot, under the premises, place himself in the same shoes as the INC ministers, who,
for one, are not facing administrative complaints before the MTRCB. For another, he
offers no proof that the said ministers, in their TV programs, use language similar to that
which he used in his own, necessitating the MTRCB's disciplinary action. If the immediate
result of the preventive suspension order is that petitioner remains temporarily gagged
and is unable to answer his critics, this does not become a deprivation of the equal
protection guarantee. The Court need not belabor the fact that the circumstances of
petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as hosts of
Ang Tamang Daan, on the other, are, within the purview of this case, simply too different
to even consider whether or not there is a prima facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered was
religious speech, adding that words like "putang babae" were said in exercise of his
religious freedom.
The argument has no merit.
The Court is at a loss to understand how petitioners utterances in question can come
within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The
section reads as follows:
No law shall be made respecting the establishment of a religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights. TcEaDS
There is nothing in petitioner's statements subject of the complaints expressing any
particular religious belief, nothing furthering his avowed evangelical mission. The fact that
he came out with his statements in a televised bible exposition program does not
574
automatically accord them the character of a religious discourse. Plain and simple insults
directed at another person cannot be elevated to the status of religious speech. Even
petitioner's attempts to place his words in context show that he was moved by anger and
the need to seek retribution, not by any religious conviction. His claim, assuming its
veracity, that some INC ministers distorted his statements respecting amounts Ang Dating
Daan owed to a TV station does not convert the foul language used in retaliation as
religious speech. We cannot accept that petitioner made his statements in defense of his
reputation and religion, as they constitute no intelligible defense or refutation of the
alleged lies being spread by a rival religious group. They simply illustrate that petitioner
had descended to the level of name-calling and foul-language discourse. Petitioner could
have chosen to contradict and disprove his detractors, but opted for the low road.
Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day
preventive suspension order, being, as insisted, an unconstitutional abridgement of the
freedom of speech and expression and an impermissible prior restraint. The main issue
tendered respecting the adverted violation and the arguments holding such issue
dovetails with those challenging the three-month suspension imposed under the assailed
September 27, 2004 MTRCB decision subject of review under G.R. No. 165636. Both
overlapping issues and arguments shall be jointly addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him from hosting Ang Dating
Daan for three months on the main ground that the decision violates, apart from his
religious freedom, his freedom of speech and expression guaranteed under Sec. 4, Art.
III of the Constitution, which reads:
No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the government for redress
of grievance.
He would also have the Court declare PD 1986, its Sec. 3 (c) in particular, unconstitutional
for reasons articulated in this petition.
We are not persuaded as shall be explained shortly. But first, we restate certain general
concepts and principles underlying the freedom of speech and expression.
It is settled that expressions by means of newspapers, radio, television, and motion
pictures come within the broad protection of the free speech and expression clause. 25
Each method though, because of its dissimilar presence in the lives of people and
accessibility to children, tends to present its own problems in the area of free speech
protection, with broadcast media, of all forms of communication, enjoying a lesser degree
of protection. 26 Just as settled is the rule that restrictions, be it in the form of prior
restraint, e.g., judicial injunction against publication or threat of cancellation of
license/franchise, or subsequent liability, whether in libel and damage suits, prosecution
for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior
restraint means official government restrictions on the press or other forms of expression
in advance of actual publication or dissemination. 27 The freedom of expression, as with
the other freedoms encased in the Bill of Rights, is, however, not absolute. It may be
regulated to some extent to serve important public interests, some forms of speech not
being protected. As has been held, the limits of the freedom of expression are reached
when the expression touches upon matters of essentially private concern. 28 In the oftquoted expression of Justice Holmes, the constitutional guarantee "obviously was not
intended to give immunity for every possible use of language". 29 From Lucas v. Royo
comes this line: "[T]he freedom to express one's sentiments and belief does not grant one
the license to vilify in public the honor and integrity of another. Any sentiments must be
expressed within the proper forum and with proper regard for the rights of others". 30
Indeed, as noted in Chaplinsky v. State of New Hampshire, 31 "there are certain welldefined and narrowly limited classes of speech that are harmful, the prevention and
punishment of which has never been thought to raise any Constitutional problems". In net
effect, some forms of speech are not protected by the Constitution, meaning that
restrictions on unprotected speech may be decreed without running afoul of the freedom
of speech clause. 32 A speech would fall under the unprotected type if the utterances
575
involved are "no essential part of any exposition of ideas, and are of such slight social
value as a step of truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality". 33 Being of little or no value,
there is, in dealing with or regulating them, no imperative call for the application of the
clear and present danger rule or the balancing-of-interest test, they being essentially
modes of weighing competing values, 34 or, with like effect, determining which of the
clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that unprotected
speech or low-value expression refers to libelous statements, obscenity or pornography,
false or misleading advertisement, insulting or "fighting words",i.e.,those which by their
very utterance inflict injury or tend to incite an immediate breach of peace and expression
endangering national security.
The Court finds that petitioner's statement can be treated as obscene, at least with
respect to the average child. Hence, it is, in that context, unprotected speech. In Fernando
v. Court of Appeals, the Court expressed difficulty in formulating a definition of obscenity
that would apply to all cases, but nonetheless stated the ensuing observations on the
matter:
There is no perfect definition of "obscenity" but the latest word is that of Miller v. California
which established basic guidelines, to wit: (a) whether to the average person, applying
contemporary standards would find the work, taken as a whole, appeals to the prurient
interest; (b) whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (c) whether the work, taken
as a whole, lacks serious literary, artistic, political, or scientific value. But, it would be a
serious misreading of Miller to conclude that the trier of facts has the unbridled discretion
in determining what is "patently offensive"....What remains clear is that obscenity is an
issue proper for judicial determination and should be treated on a case to case basis and
on the judge's sound discretion. 35
Following the contextual lessons of the cited case of Miller v. California, 36 a patently
offensive utterance would come within the pale of the term obscenity should it appeal to
the prurient interest of an average listener applying contemporary standards. HAaDTE
A cursory examination of the utterances complained of and the circumstances of the case
reveal that to an average adult, the utterances "Gago ka talaga ...,masahol ka pa sa
putang babae ....Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay
Michael ang gumagana ang itaas, o di ba!" may not constitute obscene but merely
indecent utterances. They can be viewed as figures of speech or merely a play on words.
In the context they were used, they may not appeal to the prurient interests of an adult.
The problem with the challenged statements is that they were uttered in a TV program
that is rated "G" or for general viewership, and in a time slot that would likely reach even
the eyes and ears of children.
While adults may have understood that the terms thus used were not to be taken literally,
children could hardly be expected to have the same discernment. Without parental
guidance, the unbridled use of such language as that of petitioner in a television broadcast
could corrupt impressionable young minds. The term "putang babae" means "a female
prostitute",a term wholly inappropriate for children, who could look it up in a dictionary
and just get the literal meaning, missing the context within which it was used. Petitioner
further used the terms, "ang gumagana lang doon yung ibaba", making reference to the
female sexual organ and how a female prostitute uses it in her trade, then stating that
Sandoval was worse than that by using his mouth in a similar manner. Children could be
motivated by curiosity and ask the meaning of what petitioner said, also without placing
the phrase in context. They may be inquisitive as to why Sandoval is different from a
female prostitute and the reasons for the dissimilarity. And upon learning the meanings
of the words used, young minds, without the guidance of an adult, may, from their end,
view this kind of indecent speech as obscene, if they take these words literally and use
them in their own speech or form their own ideas on the matter. In this particular case,
where children had the opportunity to hear petitioner's words, when speaking of the
576
average person in the test for obscenity, we are speaking of the average child, not the
average adult. The average child may not have the adult's grasp of figures of speech, and
may lack the understanding that language may be colorful, and words may convey more
than the literal meaning. Undeniably the subject speech is very suggestive of a female
sexual organ and its function as such. In this sense, we find petitioner's utterances
obscene and not entitled to protection under the umbrella of freedom of speech.
Even if we concede that petitioner's remarks are not obscene but merely indecent speech,
still the Court rules that petitioner cannot avail himself of the constitutional protection of
free speech. Said statements were made in a medium easily accessible to children. With
respect to the young minds, said utterances are to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while a
jurisprudential pattern involving certain offensive utterances conveyed in different
mediums has emerged, this case is veritably one of first impression, it being the first time
that indecent speech communicated via television and the applicable norm for its
regulation are, in this jurisdiction, made the focal point. Federal Communications
Commission (FCC) v. Pacifica Foundation, 37 a 1978 American landmark case cited in
Eastern Broadcasting Corporation v. Dans, Jr. 38 and Chavez v. Gonzales, 39 is a rich
source of persuasive lessons. Foremost of these relates to indecent speech without
prurient appeal component coming under the category of protected speech depending on
the context within which it was made, irresistibly suggesting that, within a particular
context, such indecent speech may validly be categorized as unprotected, ergo,
susceptible to restriction.
In FCC, seven of what were considered "filthy" words 40 earlier recorded in a monologue
by a satiric humorist later aired in the afternoon over a radio station owned by Pacifica
Foundation. Upon the complaint of a man who heard the pre-recorded monologue while
driving with his son, FCC declared the language used as "patently offensive" and
"indecent" under a prohibiting law, though not necessarily obscene. FCC added, however,
that its declaratory order was issued in a "special factual context",referring, in gist, to an
afternoon radio broadcast when children were undoubtedly in the audience. Acting on the
question of whether the FCC could regulate the subject utterance, the US Supreme Court
ruled in the affirmative, owing to two special features of the broadcast medium, to wit: (1)
radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The
US Court, however, hastened to add that the monologue would be protected speech in
other contexts, albeit it did not expound and identify a compelling state interest in putting
FCC's content-based regulatory action under scrutiny.
The Court in Chavez 41 elucidated on the distinction between regulation or restriction of
protected speech that is content-based and that which is content-neutral. A content-based
restraint is aimed at the contents or idea of the expression, whereas a content-neutral
restraint intends to regulate the time, place, and manner of the expression under welldefined standards tailored to serve a compelling state interest, without restraint on the
message of the expression. Courts subject content-based restraint to strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the premises
was, in one perspective, permissible restriction. We make this disposition against the
backdrop of the following interplaying factors: First, the indecent speech was made via
television, a pervasive medium that, to borrow from Gonzales v. Kalaw Katigbak, 42 easily
"reaches every home where there is a set [and where] [c]hildren will likely be among the
avid viewers of the programs therein shown";second, the broadcast was aired at the time
of the day when there was a reasonable risk that children might be in the audience; and
third, petitioner uttered his speech on a "G" or "for general patronage" rated program.
Under Sec. 2 (A) of Chapter IV of the IRR of the MTRCB, a show for general patronage
is "[s]uitable for all ages",meaning that the "material for television ...in the judgment of the
BOARD, does not contain anything unsuitable for children and minors, and may be
viewed without adult guidance or supervision".The words petitioner used were, by any
civilized norm, clearly not suitable for children. Where a language is categorized as
indecent, as in petitioner's utterances on a general-patronage rated TV program, it may
be readily proscribed as unprotected speech. aEcTDI
577
A view has been advanced that unprotected speech refers only to pornography, 43 false
or misleading advertisement, 44 advocacy of imminent lawless action, and expression
endangering national security. But this list is not, as some members of the Court would
submit, exclusive or carved in stone. Without going into specifics, it may be stated without
fear of contradiction that US decisional law goes beyond the aforesaid general
exceptions. As the Court has been impelled to recognize exceptions to the rule against
censorship in the past, this particular case constitutes yet another exception, another
instance of unprotected speech, created by the necessity of protecting the welfare of our
children. As unprotected speech, petitioners utterances can be subjected to restraint or
regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner
asserts that his utterances must present a clear and present danger of bringing about a
substantive evil the State has a right and duty to prevent and such danger must be grave
and imminent. 45
Petitioner's invocation of the clear and present danger doctrine, arguably the most
permissive of speech tests, would not avail him any relief, for the application of said test
is uncalled for under the premises. The doctrine, first formulated by Justice Holmes,
accords protection for utterances so that the printed or spoken words may not be subject
to prior restraint or subsequent punishment unless its expression creates a clear and
present danger of bringing about a substantial evil which the government has the power
to prohibit. 46 Under the doctrine, freedom of speech and of press is susceptible of
restriction when and only when necessary to prevent grave and immediate danger to
interests which the government may lawfully protect. As it were, said doctrine evolved in
the context of prosecutions for rebellion and other crimes involving the overthrow of
government. 47 It was originally designed to determine the latitude which should be given
to speech that espouses anti-government action, or to have serious and substantial
deleterious consequences on the security and public order of the community. 48 The clear
and present danger rule has been applied to this jurisdiction. 49 As a standard of limitation
on free speech and press, however, the clear and present danger test is not a magic
incantation that wipes out all problems and does away with analysis and judgment in the
testing of the legitimacy of claims to free speech and which compels a court to release a
defendant from liability the moment the doctrine is invoked, absent proof of imminent
catastrophic disaster. 50 As we observed in Eastern Broadcasting Corporation, the clear
and present danger test "does not lend itself to a simplistic and all embracing
interpretation applicable to all utterances in all forums". 51
To be sure, the clear and present danger doctrine is not the only test which has been
applied by the courts. Generally, said doctrine is applied to cases involving the overthrow
of the government and even other evils which do not clearly undermine national security.
Since not all evils can be measured in terms of "proximity and degree" the Court, however,
in several cases Ayer Productions v. Capulong 52 and Gonzales v. COMELEC, 53
applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in
Gonzales v. COMELEC, elucidated in his Separate Opinion that "where the legislation
under constitutional attack interferes with the freedom of speech and assembly in a more
generalized way and where the effect of the speech and assembly in terms of the
probability of realization of a specific danger is not susceptible even of impressionistic
calculation", 54 then the "balancing of interests" test can be applied.
The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:
When particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of speech, the duty of the courts is
to determine which of the two conflicting interests demands the greater protection under
the particular circumstances presented. ...We must, therefore, undertake the "delicate
and difficult task ...to weigh the circumstances and to appraise the substantiality of the
reasons advanced in support of the regulation of the free enjoyment of rights ....
In enunciating standard premised on a judicial balancing of the conflicting social values
and individual interests competing for ascendancy in legislation which restricts
expression, the court in Douds laid the basis for what has been called the "balancing-of578
interests" test which has found application in more recent decisions of the U.S. Supreme
Court. Briefly stated, the "balancing" test requires a court to take conscious and detailed
consideration of the interplay of interests observable in a given situation or type of
situation.
xxx xxx xxx
Although the urgency of the public interest sought to be secured by Congressional power
restricting the individual's freedom, and the social importance and value of the freedom
so restricted, "are to be judged in the concrete, not on the basis of abstractions",a wide
range of factors are necessarily relevant in ascertaining the point or line of equilibrium.
Among these are (a) the social value and importance of the specific aspect of the
particular freedom restricted by the legislation; (b) the specific thrust of the restriction,
i.e.,whether the restriction is direct or indirect, whether or not the persons affected are
few; (c) the value and importance of the public interest sought to be secured by the
legislation the reference here is to the nature and gravity of the evil which Congress
seeks to prevent; (d) whether the specific restriction decreed by Congress is reasonably
appropriate and necessary for the protection of such public interest; and (e) whether the
necessary safeguarding of the public interest involved may be achieved by some other
measure less restrictive of the protected freedom. 55
This balancing of interest test, to borrow from Professor Kauper, 56 rests on the theory
that it is the court's function in a case before it when it finds public interests served by
legislation, on the one hand, and the free expression clause affected by it, on the other,
to balance one against the other and arrive at a judgment where the greater weight shall
be placed. If, on balance, it appears that the public interest served by restrictive legislation
is of such nature that it outweighs the abridgment of freedom, then the court will find the
legislation valid. In short, the balance-of-interests theory rests on the basis that
constitutional freedoms are not absolute, not even those stated in the free speech and
expression clause, and that they may be abridged to some extent to serve appropriate
and important interests. 57 To the mind of the Court, the balancing of interest doctrine is
the more appropriate test to follow. ASIDTa
In the case at bar, petitioner used indecent and obscene language and a three (3)-month
suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion
by petitioner of his enjoyment of his freedom of speech is ranged against the duty of the
government to protect and promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments raised by petitioner in
support of his claim to free speech, the Court rules that the government's interest to
protect and promote the interests and welfare of the children adequately buttresses the
reasonable curtailment and valid restraint on petitioner's prayer to continue as program
host of Ang Dating Daan during the suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State is
the freedom of speech or expression, for without the enjoyment of such right, a free,
stable, effective, and progressive democratic state would be difficult to attain. Arrayed
against the freedom of speech is the right of the youth to their moral, spiritual, intellectual,
and social being which the State is constitutionally tasked to promote and protect.
Moreover, the State is also mandated to recognize and support the vital role of the youth
in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility on the
State to provide protection to the youth against illegal or improper activities which may
prejudice their general well-being. The Article on youth, approved on second reading by
the Constitutional Commission, explained that the State shall "extend social protection to
minors against all forms of neglect, cruelty, exploitation, immorality, and practices which
may foster racial, religious or other forms of discrimination". 58
Indisputably, the State has a compelling interest in extending social protection to minors
against all forms of neglect, exploitation, and immorality which may pollute innocent
minds. It has a compelling interest in helping parents, through regulatory mechanisms,
579
protect their children's minds from exposure to undesirable materials and corrupting
experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to
promote and protect the physical, moral, spiritual, intellectual, and social well-being of the
youth to better prepare them fulfill their role in the field of nation-building. 59 In the same
way, the State is mandated to support parents in the rearing of the youth for civic
efficiency and the development of moral character. 60
Petitioner's offensive and obscene language uttered in a television broadcast, without
doubt, was easily accessible to the children. His statements could have exposed children
to a language that is unacceptable in everyday use. As such, the welfare of children and
the State's mandate to protect and care for them, as parens patriae, 61 constitute a
substantial and compelling government interest in regulating petitioner's utterances in TV
broadcast as provided in PD 1986.
FCC explains the duty of the government to act as parens patriae to protect the children
who, because of age or interest capacity, are susceptible of being corrupted or prejudiced
by offensive language, thus:
[B]roadcasting is uniquely accessible to children, even those too young to read. Although
Cohen's written message, ["Fuck the Draft"],might have been incomprehensible to a first
grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Other
forms of offensive expression may be withheld from the young without restricting the
expression at its source. Bookstores and motion picture theaters, for example, may be
prohibited from making indecent material available to children. We held in Ginsberg v.
New York that the government's interest in the "well-being of its youth" and in supporting
"parents' claim to authority in their own household" justified the regulation of otherwise
protected expression. The ease with which children may obtain access to broadcast
material, coupled with the concerns recognized in Ginsberg, amply justify special
treatment of indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend
to the welfare of the young:
...It is the consensus of this Court that where television is concerned, a less liberal
approach calls for observance. This is so because unlike motion pictures where the
patrons have to pay their way, television reaches every home where there is a set.
Children then will likely will be among the avid viewers of the programs therein shown. As
was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern
of the law to deal with the sexual fantasies of the adult population. It cannot be denied
though that the State as parens patriae is called upon to manifest an attitude of caring for
the welfare of the young. 62
The compelling need to protect the young impels us to sustain the regulatory action
MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint
on the TV broadcast grounded on the following considerations: (1) the use of television
with its unique accessibility to children, as a medium of broadcast of a patently offensive
speech; (2) the time of broadcast; and (3) the "G" rating of the Ang Dating Daan program.
And in agreeing with MTRCB, the court takes stock of and cites with approval the following
excerpts from FCC:
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case
does not involve a two-way radio conversation between a cab driver and a dispatcher, or
a telecast of an Elizabethan comedy. We have not decided that an occasional expletive
in either setting would justify any sanction. ...The [FFC's] decision rested entirely on a
nuisance rationale under which context is all important. The concept requires
consideration of a host of variables. The time of day was emphasized by the [FFC].The
content of the program in which the language is used will affect the composition of the
audience ....As Mr. Justice Sutherland wrote a 'nuisance may be merely a right thing in
the wrong place, like a pig in the parlor instead of the barnyard'.We simply hold that when
the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does
not depend on proof that the pig is obscene. (Citation omitted.)
580
There can be no quibbling that the remarks in question petitioner uttered on prime-time
television are blatantly indecent if not outright obscene. It is the kind of speech that PD
1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It
is the kind of speech that the State has the inherent prerogative, nay duty, to regulate and
prevent should such action served and further compelling state interests. One who utters
indecent, insulting, or offensive words on television when unsuspecting children are in the
audience is, in the graphic language of FCC, a "pig in the parlor".Public interest would be
served if the "pig" is reasonably restrained or even removed from the "parlor".ADEacC
Ergo, petitioner's offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or
subsequent punishment that, however, includes prior restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an
administrative sanction or subsequent punishment for his offensive and obscene
language in Ang Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and presumed
unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are
movies, television, and radio broadcast censorship in view of its access to numerous
people, including the young who must be insulated from the prejudicial effects of
unprotected speech. PD 1986 was passed creating the Board of Review for Motion
Pictures and Television (now MTRCB) and which requires prior permit or license before
showing a motion picture or broadcasting a TV program. The Board can classify movies
and television programs and can cancel permits for exhibition of films or television
broadcast.
The power of MTRCB to regulate and even impose some prior restraint on radio and
television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of
Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:
We thus reject petitioner's postulate that its religious program is per se beyond review by
the respondent Board. Its public broadcast on TV of its religious program brings it out of
the bosom of internal belief. Television is a medium that reaches even the eyes and ears
of children. The Court iterates the rule that the exercise of religious freedom can be
regulated by the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e.,serious detriment to the
more overriding interest of public health, public morals, or public welfare. ...
xxx xxx xxx
While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an administrative body quasi-judicial power to
preview and classify TV programs and enforce its decision subject to review by our courts.
As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz.:
"The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons possess no absolute right to put into the
mail anything they please, regardless of its character." 63
Bernas adds:
Under the decree a movie classification board is made the arbiter of what movies and
television programs or parts of either are fit for public consumption. It decides what movies
are "immoral, indecent, contrary to law and/or good customs, injurious to the prestige of
the Republic of the Philippines or its people",and what "tend to incite subversion,
insurrection, rebellion or sedition",or "tend to undermine the faith and confidence of the
people in their government and/or duly constituted authorities",etc. Moreover, its
decisions are executory unless stopped by a court. 64
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation, 65 it was held that the
power of review and prior approval of MTRCB extends to all television programs and is
581
valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast
networks are regulated by the MTRCB since they are required to get a permit before they
air their television programs. Consequently, their right to enjoy their freedom of speech is
subject to that requirement. As lucidly explained by Justice Dante O. Tinga, government
regulations through the MTRCB became "a necessary evil" with the government taking
the role of assigning bandwidth to individual broadcasters. The stations explicitly agreed
to this regulatory scheme; otherwise, chaos would result in the television broadcast
industry as competing broadcasters will interfere or co-opt each other's signals. In this
scheme, station owners and broadcasters in effect waived their right to the full enjoyment
of their right to freedom of speech in radio and television programs and impliedly agreed
that said right may be subject to prior restraint denial of permit or subsequent
punishment, like suspension or cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the right of
petitioner to continue with the broadcast of Ang Dating Daan as a permit was already
issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of
permissible administrative sanction or subsequent punishment for the offensive and
obscene remarks he uttered on the evening of August 10, 2004 in his television program,
Ang Dating Daan. It is a sanction that the MTRCB may validly impose under its charter
without running afoul of the free speech clause. And the imposition is separate and distinct
from the criminal action the Board may take pursuant to Sec. 3 (i) of PD 1986 and the
remedies that may be availed of by the aggrieved private party under the provisions on
libel or tort, if applicable. As FCC teaches, the imposition of sanctions on broadcasters
who indulge in profane or indecent broadcasting does not constitute forbidden
censorship. Lest it be overlooked, the sanction imposed is not per se for petitioner's
exercise of his freedom of speech via television, but for the indecent contents of his
utterances in a "G" rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of
his freedom of speech to regulation under PD 1986 and its IRR as television station
owners, program producers, and hosts have impliedly accepted the power of MTRCB to
regulate the broadcast industry.
Neither can petitioner's virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in its
proper perspective, the suspension is in the nature of an intermediate penalty for uttering
an unprotected form of speech. It is definitely a lesser punishment than the permissible
cancellation of exhibition or broadcast permit or license. In fine, the suspension meted
was simply part of the duties of the MTRCB in the enforcement and administration of the
law which it is tasked to implement. Viewed in its proper context, the suspension sought
to penalize past speech made on prime-time "G" rated TV program; it does not bar future
speech of petitioner in other television programs; it is a permissible subsequent
administrative sanction; it should not be confused with a prior restraint on speech. While
not on all fours, the Court, in MTRCB, 66 sustained the power of the MTRCB to penalize
a broadcast company for exhibiting/airing a pre-taped TV episode without Board
authorization in violation of Sec. 7 of PD 1986. IcDHaT
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its
authority were it to regulate and even restrain the prime-time television broadcast of
indecent or obscene speech in a "G" rated program is not acceptable. As made clear in
Eastern Broadcasting Corporation, "the freedom of television and radio broadcasting is
somewhat lesser in scope than the freedom accorded to newspaper and print media".The
MTRCB, as a regulatory agency, must have the wherewithal to enforce its mandate,
which would not be effective if its punitive actions would be limited to mere fines.
Television broadcasts should be subject to some form of regulation, considering the ease
with which they can be accessed, and violations of the regulations must be met with
appropriate and proportional disciplinary action. The suspension of a violating television
program would be a sufficient punishment and serve as a deterrent for those responsible.
The prevention of the broadcast of petitioner's television program is justified, and does
not constitute prohibited prior restraint. It behooves the Court to respond to the needs of
the changing times, and craft jurisprudence to reflect these times.
582
Petitioner, in questioning the three-month suspension, also tags as unconstitutional the

very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also
upon his freedom of religion. The Court has earlier adequately explained why petitioner's
undue reliance on the religious freedom cannot lend justification, let alone an exempting
dimension to his licentious utterances in his program. The Court sees no need to address
anew the repetitive arguments on religious freedom. As earlier discussed in the
disposition of the petition in G.R. No. 164785, what was uttered was in no way a religious
speech. Parenthetically, petitioner's attempt to characterize his speech as a legitimate
defense of his religion fails miserably. He tries to place his words in perspective, arguing
evidently as an afterthought that this was his method of refuting the alleged distortion of
his statements by the INC hosts of Ang Tamang Daan. But on the night he uttered them
in his television program, the word simply came out as profane language, without any
warning or guidance for undiscerning ears.
As to petitioner's other argument about having been denied due process and equal
protection of the law, suffice it to state that we have at length debunked similar arguments
in G.R. No. 164785. There is no need to further delve into the fact that petitioner was
afforded due process when he attended the hearing of the MTRCB, and that he was
unable to demonstrate that he was unjustly discriminated against in the MTRCB
proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as
PD 1986 does not provide for the range of imposable penalties that may be applied with
respect to violations of the provisions of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power
in the following wise:
It is a fundamental principle flowing from the doctrine of separation of powers that
Congress may not delegate its legislative power to the two other branches of the
government, subject to the exception that local governments may over local affairs
participate in its exercise. What cannot be delegated is the authority under the
Constitution to make laws and to alter and repeal them; the test is the completeness of
the statute in all its term and provisions when it leaves the hands of the legislature. To
determine whether or not there is an undue delegation of legislative power, the inquiry
must be directed to the scope and definiteness of the measure enacted. The legislature
does not abdicate its functions when it describes what job must be done, who is to do it,
and what is the scope of his authority. For a complex economy, that may indeed be the
only way in which the legislative process can go forward. A distinction has rightfully been
made between delegation of power to make laws which necessarily involves a discretion
as to what it shall be, which constitutionally may not be done, and delegation of authority
or discretion as to its execution to be exercised under and in pursuance of the law, to
which no valid objection can be made. The Constitution is thus not to be regarded as
denying the legislature the necessary resources of flexibility and practicability.
To avoid the taint of unlawful delegation, there must be a standard, which implies at the
very least that the legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may be hard to repel.
A standard thus defines legislative policy, marks its limits, maps out its boundaries and
specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. It is the criterion by which legislative purpose may
be carried out. Thereafter, the executive or administrative office designated may in
pursuance of the above guidelines promulgate supplemental rules and regulations. 67
Based on the foregoing pronouncements and analyzing the law in question, petitioner's
protestation about undue delegation of legislative power for the sole reason that PD 1986
does not provide for a range of penalties for violation of the law is untenable. His thesis
is that MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of penalties
for violation of the provisions of the decree, went beyond the terms of the law.
583
Petitioner's posture is flawed by the erroneous assumptions holding it together, the first
assumption being that PD 1986 does not prescribe the imposition of, or authorize the
MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however, the
MTRCB, by express and direct conferment of power and functions, is charged with
supervising and regulating, granting, denying, or canceling permits for the exhibition
and/or television broadcast of all motion pictures, television programs, and publicity
materials to the end that no such objectionable pictures, programs, and materials shall
be exhibited and/or broadcast by television. Complementing this provision is Sec. 3 (k) of
the decree authorizing the MTRCB "to exercise such powers and functions as may be
necessary or incidental to the attainment of the purpose and objectives of [the law]". As
earlier explained, the investiture of supervisory, regulatory, and disciplinary power would
surely be a meaningless grant if it did not carry with it the power to penalize the supervised
or the regulated as may be proportionate to the offense committed, charged, and proved.
As the Court said in Chavez v. National Housing Authority: cDSAEI
...[W]hen a general grant of power is conferred or duty enjoined, every particular power
necessary for the exercise of the one or the performance of the other is also conferred.
...[W]hen the statute does not specify the particular method to be followed or used by a
government agency in the exercise of the power vested in it by law, said agency has the
authority to adopt any reasonable method to carry out its function. 68
Given the foregoing perspective, it stands to reason that the power of the MTRCB to
regulate and supervise the exhibition of TV programs carries with it or necessarily implies
the authority to take effective punitive action for violation of the law sought to be enforced.
And would it not be logical too to say that the power to deny or cancel a permit for the
exhibition of a TV program or broadcast necessarily includes the lesser power to
suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for
reference, provides that agency with the power "[to] promulgate such rules and
regulations as are necessary or proper for the implementation of this Act, and the
accomplishment of its purposes and objectives . . . ". And Chapter XIII, Sec. 1 of the IRR
providing:
Section 1.VIOLATIONS AND ADMINISTRATIVE SANCTIONS. Without prejudice to
the immediate filing of the appropriate criminal action and the immediate seizure of the
pertinent articles pursuant to Section 13, any violation of PD 1986 and its Implementing
Rules and Regulations governing motion pictures, television programs, and related
promotional materials shall be penalized with suspension or cancellation of permits and/or
licenses issued by the Board and/or with the imposition of fines and other administrative
penalty/penalties. The Board recognizes the existing Table of Administrative Penalties
attached without prejudice to the power of the Board to amend it when the need arises.
In the meantime the existing revised Table of Administrative Penalties shall be enforced.
(Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the
aforequoted provisions of Sec. 3 (d) and (k).Contrary to what petitioner implies, the IRR
does not expand the mandate of the MTRCB under the law or partake of the nature of an
unauthorized administrative legislation. The MTRCB cannot shirk its responsibility to
regulate the public airwaves and employ such means as it can as a guardian of the public.
In Sec. 3 (c), one can already find the permissible actions of the MTRCB, along with the
standards to be applied to determine whether there have been statutory breaches. The
MTRCB may evaluate motion pictures, television programs, and publicity materials
"applying contemporary Filipino cultural values as standard", and, from there, determine
whether these audio and video materials "are objectionable for being immoral, indecent,
contrary to law and/or good customs, [etc.] . . ." and apply the sanctions it deems proper.
The lawmaking body cannot possibly provide for all the details in the enforcement of a
particular statute. 69 The grant of the rule-making power to administrative agencies is a
584
relaxation of the principle of separation of powers and is an exception to the nondelegation of legislative powers. 70 Administrative regulations or "subordinate legislation"
calculated to promote the public interest are necessary because of "the growing
complexity of modern life, the multiplication of the subjects of governmental regulations,
and the increased difficulty of administering the law". 71 Allowing the MTRCB some
reasonable elbow-room in its operations and, in the exercise of its statutory disciplinary
functions, according it ample latitude in fixing, by way of an appropriate issuance,
administrative penalties with due regard for the severity of the offense and attending
mitigating or aggravating circumstances, as the case may be, would be consistent with
its mandate to effectively and efficiently regulate the movie and television industry.
But even as we uphold the power of the MTRCB to review and impose sanctions for
violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere in
that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of
Administrative Penalties effective January 1, 1999 is the Board empowered to suspend
the program host or even to prevent certain people from appearing in television programs.
The MTRCB, to be sure, may prohibit the broadcast of such television programs or cancel
permits for exhibition, but it may not suspend television personalities, for such would be
beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what
the law provides. Only persons, offenses, and penalties clearly falling clearly within the
letter and spirit of PD 1986 will be considered to be within the decree's penal or
disciplinary operation. And when it exists, the reasonable doubt must be resolved in favor
of the person charged with violating the statute and for whom the penalty is sought. Thus,
the MTRCB's decision in Administrative Case No. 01-04 dated September 27, 2004 and
the subsequent order issued pursuant to said decision must be modified. The suspension
should cover only the television program on which petitioner appeared and uttered the
offensive and obscene language, which sanction is what the law and the facts obtaining
call for.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm in
which absolute permissiveness is the norm. Petitioner's flawed belief that he may simply
utter gutter profanity on television without adverse consequences, under the guise of free
speech, does not lend itself to acceptance in this jurisdiction. We repeat: freedoms of
speech and expression are not absolute freedoms. To say "any act that restrains speech
should be greeted with furrowed brows" is not to say that any act that restrains or
regulates speech or expression is per se invalid. This only recognizes the importance of
freedoms of speech and expression, and indicates the necessity to carefully scrutinize
acts that may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27,
2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to the
program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a
penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating
Daan, subject of the instant petition.
Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner,
PBC, are hereby exonerated for lack of evidence. DIEAHc
Costs against petitioner.
SO ORDERED.
Ynares-Santiago, Chico-Nazario, Nachura, Leonardo-de Castro, Peralta and Bersamin,
JJ., concur.
Puno, C.J.,see Dissent.
Quisumbing, J.,certifies that J. Quisumbing joined J. Carpio.
585
Carpio, J.,see Dissenting Opinion.

Austria-Martinez, J.,joins Justice Tinga in his concurring opinion.
Corona, J.,please see separate opinion.
Carpio Morales, J.,joins J. Puno and J. Carpio in their separate dissents.
Tinga, J.,please see concurring opinion.
Brion, J.,joins separate opinion of Justice Renato Corona.
||| (Soriano v. Laguardia, G.R. No. 164785, 165636, [April 29, 2009], 605 PHIL 43-193)
3. CHAMBER OF REAL VS. ROMULO 614 SCRA 605 (2010)
EN BANC
[G.R. No. 160756. March 9, 2010.]
CHAMBER OF REAL ESTATE AND BUILDERS' ASSOCIATIONS, INC., petitioner, vs.
THE HON. EXECUTIVE SECRETARY ALBERTO ROMULO, THE HON. ACTING
SECRETARY OF FINANCE JUANITA D. AMATONG, and THE HON. COMMISSIONER
OF INTERNAL REVENUE GUILLERMO PARAYNO, JR., respondents.
DECISION
CORONA, J p:
In this original petition for certiorari and mandamus, 1 petitioner Chamber of Real Estate
and Builders' Associations, Inc. is questioning the constitutionality of Section 27 (E) of
Republic Act (RA) 8424 2 and the revenue regulations (RRs) issued by the Bureau of
Internal Revenue (BIR) to implement said provision and those involving creditable
withholding taxes. 3
Petitioner is an association of real estate developers and builders in the Philippines. It
impleaded former Executive Secretary Alberto Romulo, then acting Secretary of Finance
Juanita D. Amatong and then Commissioner of Internal Revenue Guillermo Parayno, Jr.
as respondents.
Petitioner assails the validity of the imposition of minimum corporate income tax (MCIT)
on corporations and creditable withholding tax (CWT) on sales of real properties classified
as ordinary assets.
Section 27 (E) of RA 8424 provides for MCIT on domestic corporations and is
implemented by RR 9-98. Petitioner argues that the MCIT violates the due process clause
because it levies income tax even if there is no realized gain.
Petitioner also seeks to nullify Sections 2.57.2 (J) (as amended by RR 6-2001) and 2.58.2
of RR 2-98, and Section 4 (a) (ii) and (c) (ii) of RR 7-2003, all of which prescribe the rules
and procedures for the collection of CWT on the sale of real properties categorized as
ordinary assets. Petitioner contends that these revenue regulations are contrary to law
for two reasons: first, they ignore the different treatment by RA 8424 of ordinary assets
and capital assets and second, respondent Secretary of Finance has no authority to
collect CWT, much less, to base the CWT on the gross selling price or fair market value
of the real properties classified as ordinary assets. TCIEcH
Petitioner also asserts that the enumerated provisions of the subject revenue regulations
violate the due process clause because, like the MCIT, the government collects income
tax even when the net income has not yet been determined. They contravene the equal
protection clause as well because the CWT is being levied upon real estate enterprises
but not on other business enterprises, more particularly those in the manufacturing sector.
586
The issues to be resolved are as follows:

(1) whether or not this Court should take cognizance of the present case;
(2) whether or not the imposition of the MCIT on domestic corporations is unconstitutional
and
(3) whether or not the imposition of CWT on income from sales of real properties classified
as ordinary assets under RRs 2-98, 6-2001 and 7-2003, is unconstitutional.
OVERVIEW OF THE ASSAILED PROVISIONS
Under the MCIT scheme, a corporation, beginning on its fourth year of operation, is
assessed an MCIT of 2% of its gross income when such MCIT is greater than the normal
corporate income tax imposed under Section 27 (A). 4 If the regular income tax is higher
than the MCIT, the corporation does not pay the MCIT. Any excess of the MCIT over the
normal tax shall be carried forward and credited against the normal income tax for the
three immediately succeeding taxable years. Section 27 (E) of RA 8424 provides:
Section 27 (E). [MCIT] on Domestic Corporations.
(1) Imposition of Tax. A [MCIT] of two percent (2%) of the gross income as of the end
of the taxable year, as defined herein, is hereby imposed on a corporation taxable under
this Title, beginning on the fourth taxable year immediately following the year in which
such corporation commenced its business operations, when the minimum income tax is
greater than the tax computed under Subsection (A) of this Section for the taxable year.
(2) Carry Forward of Excess Minimum Tax. Any excess of the [MCIT] over the normal
income tax as computed under Subsection (A) of this Section shall be carried forward
and credited against the normal income tax for the three (3) immediately succeeding
taxable years.
(3) Relief from the [MCIT] under certain conditions. The Secretary of Finance is hereby
authorized to suspend the imposition of the [MCIT] on any corporation which suffers
losses on account of prolonged labor dispute, or because of force majeure, or because
of legitimate business reverses.
The Secretary of Finance is hereby authorized to promulgate, upon recommendation of
the Commissioner, the necessary rules and regulations that shall define the terms and
conditions under which he may suspend the imposition of the [MCIT] in a meritorious
case.
(4) Gross Income Defined. For purposes of applying the [MCIT] provided under
Subsection (E) hereof, the term 'gross income' shall mean gross sales less sales returns,
discounts and allowances and cost of goods sold. "Cost of goods sold" shall include all
business expenses directly incurred to produce the merchandise to bring them to their
present location and use.
For trading or merchandising concern, "cost of goods sold" shall include the invoice cost
of the goods sold, plus import duties, freight in transporting the goods to the place where
the goods are actually sold including insurance while the goods are in transit. cSTHaE
For a manufacturing concern, "cost of goods manufactured and sold" shall include all
costs of production of finished goods, such as raw materials used, direct labor and
manufacturing overhead, freight cost, insurance premiums and other costs incurred to
bring the raw materials to the factory or warehouse.
In the case of taxpayers engaged in the sale of service, "gross income" means gross
receipts less sales returns, allowances, discounts and cost of services. "Cost of services"
shall mean all direct costs and expenses necessarily incurred to provide the services
587
required by the customers and clients including (A) salaries and employee benefits of
personnel, consultants and specialists directly rendering the service and (B) cost of
facilities directly utilized in providing the service such as depreciation or rental of
equipment used and cost of supplies: Provided, however, that in the case of banks, "cost
of services" shall include interest expense.
On August 25, 1998, respondent Secretary of Finance (Secretary), on the
recommendation of the Commissioner of Internal Revenue (CIR), promulgated RR 9-98
implementing Section 27 (E). 5 The pertinent portions thereof read:
Sec. 2.27(E). [MCIT] on Domestic Corporations.
(1) Imposition of the Tax. A [MCIT] of two percent (2%) of the gross income as of the
end of the taxable year (whether calendar or fiscal year, depending on the accounting
period employed) is hereby imposed upon any domestic corporation beginning the fourth
(4th) taxable year immediately following the taxable year in which such corporation
commenced its business operations. The MCIT shall be imposed whenever such
corporation has zero or negative taxable income or whenever the amount of minimum
corporate income tax is greater than the normal income tax due from such corporation.
For purposes of these Regulations, the term, "normal income tax" means the income tax
rates prescribed under Sec. 27 (A) and Sec. 28 (A) (1) of the Code xxx at 32% effective
January 1, 2000 and thereafter.
xxx xxx xxx
(2) Carry forward of excess [MCIT]. Any excess of the [MCIT] over the normal income
tax as computed under Sec. 27(A) of the Code shall be carried forward on an annual
basis and credited against the normal income tax for the three (3) immediately succeeding
taxable years.
xxx xxx xxx
Meanwhile, on April 17, 1998, respondent Secretary, upon recommendation of
respondent CIR, promulgated RR 2-98 implementing certain provisions of RA 8424
involving the withholding of taxes. 6 Under Section 2.57.2 (J) of RR No. 2-98, income
payments from the sale, exchange or transfer of real property, other than capital assets,
by persons residing in the Philippines and habitually engaged in the real estate business
were subjected to CWT:
Sec. 2.57.2. Income payment subject to [CWT] and rates prescribed thereon:
xxx xxx xxx
(J) Gross selling price or total amount of consideration or its equivalent paid to the
seller/owner for the sale, exchange or transfer of. Real property, other than capital
assets, sold by an individual, corporation, estate, trust, trust fund or pension fund and the
seller/transferor is habitually engaged in the real estate business in accordance with the
following schedule
Those which are exempt from a
Exempt
xxx
xxx
xxx
withholding tax at source as
prescribed in Sec. 2.57.5 of

Gross selling price shall mean
588
these regulations.
the consideration stated in the
sales document or the fair

With a selling price of five
1.5%
market value determined in
hundred thousand pesos
accordance with Section 6 (E)
(P500,000.00) or less.
of the Code, as amended,
whichever is higher. In an
With a selling price of more
3.0%
exchange, the fair market
than five hundred thousand
value of the property received
pesos (P500,000.00) but not
in exchange, as determined
more than two million pesos
in the Income Tax
(P2,000,000.00).
Regulations shall be used.
With selling price of more
5.0%
Where the consideration or part
than two million pesos
thereof is payable on installment,
(P2,000,000.00)
no withholding tax is required to
be made on the periodic installment
payments where the buyer is an
individual not engaged in trade or
business. In such a case, the
applicable rate of tax based on
the entire consideration shall be
withheld on the last installment
or installments to be paid to the
seller.
However, if the buyer is engaged
in trade or business, whether a
corporation or otherwise, the tax
shall be deducted and withheld
by the buyer on every installment.
This provision was amended by RR 6-2001 on July 31, 2001:
Sec. 2.57.2. Income payment subject to [CWT] and rates prescribed thereon:
xxx xxx xxx
589
(J) Gross selling price or total amount of consideration or its equivalent paid to the
seller/owner for the sale, exchange or transfer of real property classified as ordinary
asset. A [CWT] based on the gross selling price/total amount of consideration or the
fair market value determined in accordance with Section 6(E) of the Code, whichever is
higher, paid to the seller/owner for the sale, transfer or exchange of real property, other
than capital asset, shall be imposed upon the withholding agent,/buyer, in accordance
with the following schedule: CIcEHS
Where the seller/transferor is exempt from [CWT] in accordance with Sec. 2.57.5 of these
regulations. Exempt
Upon the following values of real property, where the seller/transferor is habitually
engaged in the real estate business.
With a selling price of Five Hundred Thousand Pesos (P500,000.00) or less. 1.5%
With a selling price of more than Five Hundred Thousand Pesos (P500,000.00) but not
more than Two Million Pesos (P2,000,000.00). 3.0%
With a selling price of more than two Million Pesos (P2,000,000.00). 5.0%
xxx xxx xxx
Gross selling price shall remain the consideration stated in the sales document or the fair
market value determined in accordance with Section 6 (E) of the Code, as amended,
whichever is higher. In an exchange, the fair market value of the property received in
exchange shall be considered as the consideration.
xxx xxx xxx
However, if the buyer is engaged in trade or business, whether a corporation or otherwise,
these rules shall apply:
(i) If the sale is a sale of property on the installment plan (that is, payments in the year of
sale do not exceed 25% of the selling price), the tax shall be deducted and withheld by
the buyer on every installment.
(ii) If, on the other hand, the sale is on a "cash basis" or is a "deferred-payment sale not
on the installment plan" (that is, payments in the year of sale exceed 25% of the selling
price), the buyer shall withhold the tax based on the gross selling price or fair market
value of the property, whichever is higher, on the first installment.
In any case, no Certificate Authorizing Registration (CAR) shall be issued to the buyer
unless the [CWT] due on the sale, transfer or exchange of real property other than capital
asset has been fully paid. (Underlined amendments in the original)
Section 2.58.2 of RR 2-98 implementing Section 58 (E) of RA 8424 provides that any
sale, barter or exchange subject to the CWT will not be recorded by the Registry of Deeds
until the CIR has certified that such transfers and conveyances have been reported and
the taxes thereof have been duly paid: 7
Sec. 2.58.2. Registration with the Register of Deeds. Deeds of conveyances of land or
land and building/improvement thereon arising from sales, barters, or exchanges subject
to the creditable expanded withholding tax shall not be recorded by the Register of Deeds
unless the [CIR] or his duly authorized representative has certified that such transfers and
conveyances have been reported and the expanded withholding tax, inclusive of the
documentary stamp tax, due thereon have been fully paid . . . .
590
On February 11, 2003, RR No. 7-2003 8 was promulgated, providing for the guidelines in
determining whether a particular real property is a capital or an ordinary asset for
purposes of imposing the MCIT, among others. The pertinent portions thereof state:
Section 4. Applicable taxes on sale, exchange or other disposition of real property.
Gains/Income derived from sale, exchange, or other disposition of real properties shall,
unless otherwise exempt, be subject to applicable taxes imposed under the Code,
depending on whether the subject properties are classified as capital assets or ordinary
assets;
a. In the case of individual citizen (including estates and trusts), resident aliens, and nonresident aliens engaged in trade or business in the Philippines;
xxx xxx xxx
(ii) The sale of real property located in the Philippines, classified as ordinary assets, shall
be subject to the [CWT] (expanded) under Sec. 2.57.2(J) of [RR 2-98], as amended,
based on the gross selling price or current fair market value as determined in accordance
with Section 6(E) of the Code, whichever is higher, and consequently, to the ordinary
income tax imposed under Sec. 24(A)(1)(c) or 25(A)(1) of the Code, as the case may be,
based on net taxable income.
xxx xxx xxx
c. In the case of domestic corporations.
xxx xxx xxx
(ii) The sale of land and/or building classified as ordinary asset and other real property
(other than land and/or building treated as capital asset), regardless of the classification
thereof, all of which are located in the Philippines, shall be subject to the [CWT]
(expanded) under Sec. 2.57.2(J) of [RR 2-98], as amended, and consequently, to the
ordinary income tax under Sec. 27(A) of the Code. In lieu of the ordinary income tax,
however, domestic corporations may become subject to the [MCIT] under Sec. 27(E) of
the Code, whichever is applicable.
xxx xxx xxx
We shall now tackle the issues raised.
EXISTENCE OF A JUSTICIABLE CONTROVERSY
Courts will not assume jurisdiction over a constitutional question unless the following
requisites are satisfied: (1) there must be an actual case calling for the exercise of judicial
review; (2) the question before the court must be ripe for adjudication; (3) the person
challenging the validity of the act must have standing to do so; (4) the question of
constitutionality must have been raised at the earliest opportunity and (5) the issue of
constitutionality must be the very lis mota of the case. 9 SCETHa
Respondents aver that the first three requisites are absent in this case. According to them,
there is no actual case calling for the exercise of judicial power and it is not yet ripe for
adjudication because
[petitioner] did not allege that CREBA, as a corporate entity, or any of its members, has
been assessed by the BIR for the payment of [MCIT] or [CWT] on sales of real property.
Neither did petitioner allege that its members have shut down their businesses as a result
of the payment of the MCIT or CWT. Petitioner has raised concerns in mere abstract and
hypothetical form without any actual, specific and concrete instances cited that the
assailed law and revenue regulations have actually and adversely affected it. Lacking
empirical data on which to base any conclusion, any discussion on the constitutionality of
the MCIT or CWT on sales of real property is essentially an academic exercise.
591
Perceived or alleged hardship to taxpayers alone is not an adequate justification for

adjudicating abstract issues. Otherwise, adjudication would be no different from the giving
of advisory opinion that does not really settle legal issues. 10
An actual case or controversy involves a conflict of legal rights or an assertion of opposite
legal claims which is susceptible of judicial resolution as distinguished from a hypothetical
or abstract difference or dispute. 11 On the other hand, a question is considered ripe for
adjudication when the act being challenged has a direct adverse effect on the individual
challenging it. 12
Contrary to respondents' assertion, we do not have to wait until petitioner's members have
shut down their operations as a result of the MCIT or CWT. The assailed provisions are
already being implemented. As we stated in Didipio Earth-Savers' Multi-Purpose
Association, Incorporated (DESAMA) v. Gozun: 13
By the mere enactment of the questioned law or the approval of the challenged act, the
dispute is said to have ripened into a judicial controversy even without any other overt
act. Indeed, even a singular violation of the Constitution and/or the law is enough to
awaken judicial duty. 14
If the assailed provisions are indeed unconstitutional, there is no better time than the
present to settle such question once and for all.
Respondents next argue that petitioner has no legal standing to sue:
Petitioner is an association of some of the real estate developers and builders in the
Philippines. Petitioners did not allege that [it] itself is in the real estate business. It did not
allege any material interest or any wrong that it may suffer from the enforcement of [the
assailed provisions]. 15
Legal standing or locus standi is a party's personal and substantial interest in a case such
that it has sustained or will sustain direct injury as a result of the governmental act being
challenged. 16 In Holy Spirit Homeowners Association, Inc. v. Defensor, 17 we held that
the association had legal standing because its members stood to be injured by the
enforcement of the assailed provisions:
Petitioner association has the legal standing to institute the instant petition . . . . There is
no dispute that the individual members of petitioner association are residents of the NGC.
As such they are covered and stand to be either benefited or injured by the enforcement
of the IRR, particularly as regards the selection process of beneficiaries and lot allocation
to qualified beneficiaries. Thus, petitioner association may assail those provisions in the
IRR which it believes to be unfavorable to the rights of its members. . . . Certainly,
petitioner and its members have sustained direct injury arising from the enforcement of
the IRR in that they have been disqualified and eliminated from the selection process. 18
In any event, this Court has the discretion to take cognizance of a suit which does not
satisfy the requirements of an actual case, ripeness or legal standing when paramount
public interest is involved. 19 The questioned MCIT and CWT affect not only petitioners
but practically all domestic corporate taxpayers in our country. The transcendental
importance of the issues raised and their overreaching significance to society make it
proper for us to take cognizance of this petition. 20
CONCEPT AND RATIONALE OF THE MCIT
The MCIT on domestic corporations is a new concept introduced by RA 8424 to the
Philippine taxation system. It came about as a result of the perceived inadequacy of the
self-assessment system in capturing the true income of corporations. 21 It was devised
as a relatively simple and effective revenue-raising instrument compared to the normal
income tax which is more difficult to control and enforce. It is a means to ensure that
everyone will make some minimum contribution to the support of the public sector. The
congressional deliberations on this are illuminating:
Senator Enrile.
592
Mr. President, we are not unmindful of the practice of certain corporations of reporting
constantly a loss in their operations to avoid the payment of taxes, and thus avoid sharing
in the cost of government. In this regard, the Tax Reform Act introduces for the first time
a new concept called the [MCIT] so as to minimize tax evasion, tax avoidance, tax
manipulation in the country and for administrative convenience. . . . This will go a long
way in ensuring that corporations will pay their just share in supporting our public life and
our economic advancement. 22
Domestic corporations owe their corporate existence and their privilege to do business to
the government. They also benefit from the efforts of the government to improve the
financial market and to ensure a favorable business climate. It is therefore fair for the
government to require them to make a reasonable contribution to the public expenses.
Congress intended to put a stop to the practice of corporations which, while having large
turn-overs, report minimal or negative net income resulting in minimal or zero income
taxes year in and year out, through under-declaration of income or over-deduction of
expenses otherwise called tax shelters. 23
Mr. Javier (E.)
. . . [This] is what the Finance Dept. is trying to remedy, that is why they have proposed
the [MCIT]. Because from experience too, you have corporations which have been losing
year in and year out and paid no tax. So, if the corporation has been losing for the past
five years to ten years, then that corporation has no business to be in business. It is dead.
Why continue if you are losing year in and year out? So, we have this provision to avoid
this type of tax shelters, Your Honor. 24
The primary purpose of any legitimate business is to earn a profit. Continued and
repeated losses after operations of a corporation or consistent reports of minimal net
income render its financial statements and its tax payments suspect. For sure, certain tax
avoidance schemes resorted to by corporations are allowed in our jurisdiction. The MCIT
serves to put a cap on such tax shelters. As a tax on gross income, it prevents tax evasion
and minimizes tax avoidance schemes achieved through sophisticated and artful
manipulations of deductions and other stratagems. Since the tax base was broader, the
tax rate was lowered.
To further emphasize the corrective nature of the MCIT, the following safeguards were
incorporated into the law: TAECSD
First, recognizing the birth pangs of businesses and the reality of the need to recoup initial
major capital expenditures, the imposition of the MCIT commences only on the fourth
taxable year immediately following the year in which the corporation commenced its
operations. 25 This grace period allows a new business to stabilize first and make its
ventures viable before it is subjected to the MCIT. 26
Second, the law allows the carrying forward of any excess of the MCIT paid over the
normal income tax which shall be credited against the normal income tax for the three
immediately succeeding years. 27
Third, since certain businesses may be incurring genuine repeated losses, the law
authorizes the Secretary of Finance to suspend the imposition of MCIT if a corporation
suffers losses due to prolonged labor dispute, force majeure and legitimate business
reverses. 28
Even before the legislature introduced the MCIT to the Philippine taxation system, several
other countries already had their own system of minimum corporate income taxation. Our
lawmakers noted that most developing countries, particularly Latin American and Asian
countries, have the same form of safeguards as we do. As pointed out during the
committee hearings:
[Mr. Medalla:] Note that most developing countries where you have of course quite a bit
of room for underdeclaration of gross receipts have this same form of safeguards.
In the case of Thailand, half a percent (0.5%), there's a minimum of income tax of half a
percent (0.5%) of gross assessable income. In Korea a 25% of taxable income before
593
deductions and exemptions. Of course the different countries have different basis for that
minimum income tax.
The other thing you'll notice is the preponderance of Latin American countries that
employed this method. Okay, those are additional Latin American countries. 29
At present, the United States of America, Mexico, Argentina, Tunisia, Panama and
Hungary have their own versions of the MCIT. 30
MCIT IS NOT VIOLATIVE OF DUE PROCESS
Petitioner claims that the MCIT under Section 27 (E) of RA 8424 is unconstitutional
because it is highly oppressive, arbitrary and confiscatory which amounts to deprivation
of property without due process of law. It explains that gross income as defined under
said provision only considers the cost of goods sold and other direct expenses; other
major expenditures, such as administrative and interest expenses which are equally
necessary to produce gross income, were not taken into account. 31 Thus, pegging the
tax base of the MCIT to a corporation's gross income is tantamount to a confiscation of
capital because gross income, unlike net income, is not "realized gain." 32
We disagree.
Taxes are the lifeblood of the government. Without taxes, the government can neither
exist nor endure. The exercise of taxing power derives its source from the very existence
of the State whose social contract with its citizens obliges it to promote public interest and
the common good. 33
Taxation is an inherent attribute of sovereignty. 34 It is a power that is purely legislative.
35 Essentially, this means that in the legislature primarily lies the discretion to determine
the nature (kind), object (purpose), extent (rate), coverage (subjects) and situs (place) of
taxation. 36 It has the authority to prescribe a certain tax at a specific rate for a particular
public purpose on persons or things within its jurisdiction. In other words, the legislature
wields the power to define what tax shall be imposed, why it should be imposed, how
much tax shall be imposed, against whom (or what) it shall be imposed and where it shall
be imposed.
As a general rule, the power to tax is plenary and unlimited in its range, acknowledging
in its very nature no limits, so that the principal check against its abuse is to be found only
in the responsibility of the legislature (which imposes the tax) to its constituency who are
to pay it. 37 Nevertheless, it is circumscribed by constitutional limitations. At the same
time, like any other statute, tax legislation carries a presumption of constitutionality.
The constitutional safeguard of due process is embodied in the fiat "[no] person shall be
deprived of life, liberty or property without due process of law." In Sison, Jr. v. Ancheta,
et al., 38 we held that the due process clause may properly be invoked to invalidate, in
appropriate cases, a revenue measure 39 when it amounts to a confiscation of property.
40 But in the same case, we also explained that we will not strike down a revenue
measure as unconstitutional (for being violative of the due process clause) on the mere
allegation of arbitrariness by the taxpayer. 41 There must be a factual foundation to such
an unconstitutional taint. 42 This merely adheres to the authoritative doctrine that, where
the due process clause is invoked, considering that it is not a fixed rule but rather a broad
standard, there is a need for proof of such persuasive character. 43
Petitioner is correct in saying that income is distinct from capital. 44 Income means all the
wealth which flows into the taxpayer other than a mere return on capital. Capital is a fund
or property existing at one distinct point in time while income denotes a flow of wealth
during a definite period of time. 45 Income is gain derived and severed from capital. 46
For income to be taxable, the following requisites must exist:
(1) there must be gain;
(2) the gain must be realized or received and
(3) the gain must not be excluded by law or treaty from taxation. 47
594
Certainly, an income tax is arbitrary and confiscatory if it taxes capital because capital is
not income. In other words, it is income, not capital, which is subject to income tax.
However, the MCIT is not a tax on capital.
The MCIT is imposed on gross income which is arrived at by deducting the capital spent
by a corporation in the sale of its goods, i.e., the cost of goods 48 and other direct
expenses from gross sales. Clearly, the capital is not being taxed.
Furthermore, the MCIT is not an additional tax imposition. It is imposed in lieu of the
normal net income tax, and only if the normal income tax is suspiciously low. The MCIT
merely approximates the amount of net income tax due from a corporation, pegging the
rate at a very much reduced 2% and uses as the base the corporation's gross income.
Besides, there is no legal objection to a broader tax base or taxable income by eliminating
all deductible items and at the same time reducing the applicable tax rate. 49
Statutes taxing the gross "receipts," "earnings," or "income" of particular corporations are
found in many jurisdictions. Tax thereon is generally held to be within the power of a state
to impose; or constitutional, unless it interferes with interstate commerce or violates the
requirement as to uniformity of taxation. 50 cSDHEC
The United States has a similar alternative minimum tax (AMT) system which is generally
characterized by a lower tax rate but a broader tax base. 51 Since our income tax laws
are of American origin, interpretations by American courts of our parallel tax laws have
persuasive effect on the interpretation of these laws. 52 Although our MCIT is not exactly
the same as the AMT, the policy behind them and the procedure of their implementation
are comparable. On the question of the AMT's constitutionality, the United States Court
of Appeals for the Ninth Circuit stated in Okin v. Commissioner: 53
In enacting the minimum tax, Congress attempted to remedy general taxpayer distrust of
the system growing from large numbers of taxpayers with large incomes who were yet
paying no taxes.
xxx xxx xxx
We thus join a number of other courts in upholding the constitutionality of the [AMT]. . . .
[It] is a rational means of obtaining a broad-based tax, and therefore is constitutional. 54
The U.S. Court declared that the congressional intent to ensure that corporate taxpayers
would contribute a minimum amount of taxes was a legitimate governmental end to which
the AMT bore a reasonable relation. 55
American courts have also emphasized that Congress has the power to condition, limit or
deny deductions from gross income in order to arrive at the net that it chooses to tax. 56
This is because deductions are a matter of legislative grace. 57
Absent any other valid objection, the assignment of gross income, instead of net income,
as the tax base of the MCIT, taken with the reduction of the tax rate from 32% to 2%, is
not constitutionally objectionable.
Moreover, petitioner does not cite any actual, specific and concrete negative experiences
of its members nor does it present empirical data to show that the implementation of the
MCIT resulted in the confiscation of their property.
In sum, petitioner failed to support, by any factual or legal basis, its allegation that the
MCIT is arbitrary and confiscatory. The Court cannot strike down a law as unconstitutional
simply because of its yokes. 58 Taxation is necessarily burdensome because, by its
nature, it adversely affects property rights. 59 The party alleging the law's
unconstitutionality has the burden to demonstrate the supposed violations in
understandable terms. 60
RR 9-98 MERELY CLARIFIES
SECTION 27 (E) OF RA 8424
Petitioner alleges that RR 9-98 is a deprivation of property without due process of law
because the MCIT is being imposed and collected even when there is actually a loss, or
a zero or negative taxable income:
Sec. 2.27(E). [MCIT] on Domestic Corporations.
595
(1) Imposition of the Tax. . . . The MCIT shall be imposed whenever such corporation
has zero or negative taxable income or whenever the amount of [MCIT] is greater than
the normal income tax due from such corporation. (Emphasis supplied)
RR 9-98, in declaring that MCIT should be imposed whenever such corporation has zero
or negative taxable income, merely defines the coverage of Section 27 (E). This means
that even if a corporation incurs a net loss in its business operations or reports zero
income after deducting its expenses, it is still subject to an MCIT of 2% of its gross income.
This is consistent with the law which imposes the MCIT on gross income notwithstanding
the amount of the net income. But the law also states that the MCIT is to be paid only if it
is greater than the normal net income. Obviously, it may well be the case that the MCIT
would be less than the net income of the corporation which posts a zero or negative
taxable income.
We now proceed to the issues involving the CWT.
The withholding tax system is a procedure through which taxes (including income taxes)
are collected. 61 Under Section 57 of RA 8424, the types of income subject to withholding
tax are divided into three categories: (a) withholding of final tax on certain incomes; (b)
withholding of creditable tax at source and (c) tax-free covenant bonds. Petitioner is
concerned with the second category (CWT) and maintains that the revenue regulations
on the collection of CWT on sale of real estate categorized as ordinary assets are
unconstitutional.
Petitioner, after enumerating the distinctions between capital and ordinary assets under
RA 8424, contends that Sections 2.57.2 (J) and 2.58.2 of RR 2-98 and Sections 4 (a) (ii)
and (c) (ii) of RR 7-2003 were promulgated "with grave abuse of discretion amounting to
lack of jurisdiction" and "patently in contravention of law" 62 because they ignore such
distinctions. Petitioner's conclusion is based on the following premises: (a) the revenue
regulations use gross selling price (GSP) or fair market value (FMV) of the real estate as
basis for determining the income tax for the sale of real estate classified as ordinary
assets and (b) they mandate the collection of income tax on a per transaction basis, i.e.,
upon consummation of the sale via the CWT, contrary to RA 8424 which calls for the
payment of the net income at the end of the taxable period. 63
Petitioner theorizes that since RA 8424 treats capital assets and ordinary assets
differently, respondents cannot disregard the distinctions set by the legislators as regards
the tax base, modes of collection and payment of taxes on income from the sale of capital
and ordinary assets.
Petitioner's arguments have no merit.
AUTHORITY OF THE SECRETARY OF FINANCE TO ORDER THE COLLECTION OF
CWT ON SALES OF REAL PROPERTY CONSIDERED AS ORDINARY ASSETS
The Secretary of Finance is granted, under Section 244 of RA 8424, the authority to
promulgate the necessary rules and regulations for the effective enforcement of the
provisions of the law. Such authority is subject to the limitation that the rules and
regulations must not override, but must remain consistent and in harmony with, the law
they seek to apply and implement. 64 It is well-settled that an administrative agency
cannot amend an act of Congress. 65
We have long recognized that the method of withholding tax at source is a procedure of
collecting income tax which is sanctioned by our tax laws. 66 The withholding tax system
was devised for three primary reasons: first, to provide the taxpayer a convenient manner
to meet his probable income tax liability; second, to ensure the collection of income tax
which can otherwise be lost or substantially reduced through failure to file the
corresponding returns and third, to improve the government's cash flow. 67 This results
in administrative savings, prompt and efficient collection of taxes, prevention of
delinquencies and reduction of governmental effort to collect taxes through more
complicated means and remedies. 68
Respondent Secretary has the authority to require the withholding of a tax on items of
income payable to any person, national or juridical, residing in the Philippines. Such
authority is derived from Section 57 (B) of RA 8424 which provides: ICTDEa
596
SEC. 57. Withholding of Tax at Source.

xxx xxx xxx
(B) Withholding of Creditable Tax at Source. The [Secretary] may, upon the
recommendation of the [CIR], require the withholding of a tax on the items of income
payable to natural or juridical persons, residing in the Philippines, by payorcorporation/persons as provided for by law, at the rate of not less than one percent (1%)
but not more than thirty-two percent (32%) thereof, which shall be credited against the
income tax liability of the taxpayer for the taxable year.
The questioned provisions of RR 2-98, as amended, are well within the authority given by
Section 57(B) to the Secretary, i.e., the graduated rate of 1.5%-5% is between the 1%32% range; the withholding tax is imposed on the income payable and the tax is creditable
against the income tax liability of the taxpayer for the taxable year.
EFFECT OF RRS ON THE TAX BASE FOR THE INCOME TAX OF INDIVIDUALS OR
CORPORATIONS ENGAGED IN THE REAL ESTATE BUSINESS
Petitioner maintains that RR 2-98, as amended, arbitrarily shifted the tax base of a real
estate business' income tax from net income to GSP or FMV of the property sold.
Petitioner is wrong.
The taxes withheld are in the nature of advance tax payments by a taxpayer in order to
extinguish its possible tax obligation. 69 They are installments on the annual tax which
may be due at the end of the taxable year. 70
Under RR 2-98, the tax base of the income tax from the sale of real property classified as
ordinary assets remains to be the entity's net income imposed under Section 24 (resident
individuals) or Section 27 (domestic corporations) in relation to Section 31 of RA 8424,
i.e. gross income less allowable deductions. The CWT is to be deducted from the net
income tax payable by the taxpayer at the end of the taxable year. 71 Precisely, Section
4 (a) (ii) and (c) (ii) of RR 7-2003 reiterate that the tax base for the sale of real property
classified as ordinary assets remains to be the net taxable income:
Section 4. Applicable taxes on sale, exchange or other disposition of real property.
Gains/Income derived from sale, exchange, or other disposition of real properties shall
unless otherwise exempt, be subject to applicable taxes imposed under the Code,
depending on whether the subject properties are classified as capital assets or ordinary
assets;
xxx xxx xxx
a. In the case of individual citizens (including estates and trusts), resident aliens, and nonresident aliens engaged in trade or business in the Philippines;
xxx xxx xxx
(ii) The sale of real property located in the Philippines, classified as ordinary assets, shall
be subject to the [CWT] (expanded) under Sec. 2.57.2(j) of [RR 2-98], as amended, based
on the [GSP] or current [FMV] as determined in accordance with Section 6(E) of the Code,
whichever is higher, and consequently, to the ordinary income tax imposed under Sec.
24(A)(1)(c) or 25(A)(1) of the Code, as the case may be, based on net taxable income.
xxx xxx xxx
c. In the case of domestic corporations.
The sale of land and/or building classified as ordinary asset and other real property (other
than land and/or building treated as capital asset), regardless of the classification thereof,
all of which are located in the Philippines, shall be subject to the [CWT] (expanded) under
Sec. 2.57.2(J) of [RR 2-98], as amended, and consequently, to the ordinary income tax
597
under Sec. 27(A) of the Code. In lieu of the ordinary income tax, however, domestic
corporations may become subject to the [MCIT] under Sec. 27(E) of the same Code,
whichever is applicable. (Emphasis supplied)
Accordingly, at the end of the year, the taxpayer/seller shall file its income tax return and
credit the taxes withheld (by the withholding agent/buyer) against its tax due. If the tax
due is greater than the tax withheld, then the taxpayer shall pay the difference. If, on the
other hand, the tax due is less than the tax withheld, the taxpayer will be entitled to a
refund or tax credit. Undoubtedly, the taxpayer is taxed on its net income.
The use of the GSP/FMV as basis to determine the withholding taxes is evidently for
purposes of practicality and convenience. Obviously, the withholding agent/buyer who is
obligated to withhold the tax does not know, nor is he privy to, how much the
taxpayer/seller will have as its net income at the end of the taxable year. Instead, said
withholding agent's knowledge and privity are limited only to the particular transaction in
which he is a party. In such a case, his basis can only be the GSP or FMV as these are
the only factors reasonably known or knowable by him in connection with the performance
of his duties as a withholding agent.
NO BLURRING OF DISTINCTIONS BETWEEN ORDINARY ASSETS AND CAPITAL
ASSETS
RR 2-98 imposes a graduated CWT on income based on the GSP or FMV of the real
property categorized as ordinary assets. On the other hand, Section 27 (D) (5) of RA 8424
imposes a final tax and flat rate of 6% on the gain presumed to be realized from the sale
of a capital asset based on its GSP or FMV. This final tax is also withheld at source. 72
The differences between the two forms of withholding tax, i.e., creditable and final, show
that ordinary assets are not treated in the same manner as capital assets. Final
withholding tax (FWT) and CWT are distinguished as follows: caHASI
FWT
CWT
a)
The amount of income tax a)
withheld by the withholding
agent is constituted as a full
and final payment of the
income tax due from the
payee on the said income.
Taxes withheld on certain

income payments are intended
to equal or at least approximate
the tax due of the payee on
said income.
b)
The liability for payment of b)

Payee of income is required to
the tax rests primarily on the
report the income and/or pay
payor as a withholding agent.
the difference between the tax
withheld and the tax due on the
income. The payee also has the
right to ask for a refund if the tax
withheld is more than the tax due.
c)
The payee is not required to

c)
The income recipient is still required
file an income tax return for
to file an income tax return, as
the particular income. 73
prescribed in Sec. 51 and Sec. 52
of the NIRC,as amended. 74
As previously stated, FWT is imposed on the sale of capital assets. On the other hand,
CWT is imposed on the sale of ordinary assets. The inherent and substantial differences
between FWT and CWT disprove petitioner's contention that ordinary assets are being
lumped together with, and treated similarly as, capital assets in contravention of the
pertinent provisions of RA 8424.
598
Petitioner insists that the levy, collection and payment of CWT at the time of transaction
are contrary to the provisions of RA 8424 on the manner and time of filing of the return,
payment and assessment of income tax involving ordinary assets. 75
The fact that the tax is withheld at source does not automatically mean that it is treated
exactly the same way as capital gains. As aforementioned, the mechanics of the FWT
are distinct from those of the CWT. The withholding agent/buyer's act of collecting the tax
at the time of the transaction by withholding the tax due from the income payable is the
essence of the withholding tax method of tax collection.
NO RULE THAT ONLY PASSIVE
INCOMES CAN BE SUBJECT TO CWT
Petitioner submits that only passive income can be subjected to withholding tax, whether
final or creditable. According to petitioner, the whole of Section 57 governs the withholding
of income tax on passive income. The enumeration in Section 57 (A) refers to passive
income being subjected to FWT. It follows that Section 57 (B) on CWT should also be
limited to passive income:
SEC. 57. Withholding of Tax at Source.
(A) Withholding of Final Tax on Certain Incomes. Subject to rules and regulations, the
[Secretary] may promulgate, upon the recommendation of the [CIR], requiring the filing of
income tax return by certain income payees, the tax imposed or prescribed by Sections
24(B)(1), 24(B)(2), 24(C), 24(D)(1); 25(A)(2), 25(A)(3), 25(B), 25(C), 25(D), 25(E);
27(D)(1), 27(D)(2), 27(D)(3), 27(D)(5); 28(A)(4), 28(A)(5), 28(A)(7)(a), 28(A)(7)(b),
28(A)(7)(c), 28(B)(1), 28(B)(2), 28(B)(3), 28(B)(4), 28(B)(5)(a), 28(B)(5)(b), 28(B)(5)(c);
33; and 282 of this Code on specified items of income shall be withheld by payorcorporation and/or person and paid in the same manner and subject to the same
conditions as provided in Section 58 of this Code.
(B) Withholding of Creditable Tax at Source. The [Secretary] may, upon the
recommendation of the [CIR], require the withholding of a tax on the items of income
payable to natural or juridical persons, residing in the Philippines, by payorcorporation/persons as provided for by law, at the rate of not less than one percent (1%)
but not more than thirty-two percent (32%) thereof, which shall be credited against the
income tax liability of the taxpayer for the taxable year. (Emphasis supplied)
This line of reasoning is non sequitur.
Section 57 (A) expressly states that final tax can be imposed on certain kinds of income
and enumerates these as passive income. The BIR defines passive income by stating
what it is not:
. . . if the income is generated in the active pursuit and performance of the corporation's
primary purposes, the same is not passive income. . . 76
It is income generated by the taxpayer's assets. These assets can be in the form of real
properties that return rental income, shares of stock in a corporation that earn dividends
or interest income received from savings.
On the other hand, Section 57 (B) provides that the Secretary can require a CWT on
"income payable to natural or juridical persons, residing in the Philippines." There is no
requirement that this income be passive income. If that were the intent of Congress, it
could have easily said so.
Indeed, Section 57 (A) and (B) are distinct. Section 57 (A) refers to FWT while Section 57
(B) pertains to CWT. The former covers the kinds of passive income enumerated therein
and the latter encompasses any income other than those listed in 57 (A). Since the law
itself makes distinctions, it is wrong to regard 57 (A) and 57 (B) in the same way.
To repeat, the assailed provisions of RR 2-98, as amended, do not modify or deviate from
the text of Section 57 (B). RR 2-98 merely implements the law by specifying what income
is subject to CWT. It has been held that, where a statute does not require any particular
procedure to be followed by an administrative agency, the agency may adopt any
reasonable method to carry out its functions. 77 Similarly, considering that the law uses
599
the general term "income," the Secretary and CIR may specify the kinds of income the
rules will apply to based on what is feasible. In addition, administrative rules and
regulations ordinarily deserve to be given weight and respect by the courts 78 in view of
the rule-making authority given to those who formulate them and their specific expertise
in their respective fields.
NO DEPRIVATION OF PROPERTY
WITHOUT DUE PROCESS
Petitioner avers that the imposition of CWT on GSP/FMV of real estate classified as
ordinary assets deprives its members of their property without due process of law
because, in their line of business, gain is never assured by mere receipt of the selling
price. As a result, the government is collecting tax from net income not yet gained or
earned.
Again, it is stressed that the CWT is creditable against the tax due from the seller of the
property at the end of the taxable year. The seller will be able to claim a tax refund if its
net income is less than the taxes withheld. Nothing is taken that is not due so there is no
confiscation of property repugnant to the constitutional guarantee of due process. More
importantly, the due process requirement applies to the power to tax. 79 The CWT does
not impose new taxes nor does it increase taxes. 80 It relates entirely to the method and
time of payment. cDCHaS
Petitioner protests that the refund remedy does not make the CWT less burdensome
because taxpayers have to wait years and may even resort to litigation before they are
granted a refund. 81 This argument is misleading. The practical problems encountered in
claiming a tax refund do not affect the constitutionality and validity of the CWT as a
method of collecting the tax.
Petitioner complains that the amount withheld would have otherwise been used by the
enterprise to pay labor wages, materials, cost of money and other expenses which can
then save the entity from having to obtain loans entailing considerable interest expense.
Petitioner also lists the expenses and pitfalls of the trade which add to the burden of the
realty industry: huge investments and borrowings; long gestation period; sudden and
unpredictable interest rate surges; continually spiraling development/construction costs;
heavy taxes and prohibitive "up-front" regulatory fees from at least 20 government
agencies. 82
Petitioner's lamentations will not support its attack on the constitutionality of the CWT.
Petitioner's complaints are essentially matters of policy best addressed to the executive
and legislative branches of the government. Besides, the CWT is applied only on the
amounts actually received or receivable by the real estate entity. Sales on installment are
taxed on a per-installment basis. 83 Petitioner's desire to utilize for its operational and
capital expenses money earmarked for the payment of taxes may be a practical business
option but it is not a fundamental right which can be demanded from the court or from the
government.
NO VIOLATION OF EQUAL PROTECTION
Petitioner claims that the revenue regulations are violative of the equal protection clause
because the CWT is being levied only on real estate enterprises. Specifically, petitioner
points out that manufacturing enterprises are not similarly imposed a CWT on their sales,
even if their manner of doing business is not much different from that of a real estate
enterprise. Like a manufacturing concern, a real estate business is involved in a
continuous process of production and it incurs costs and expenditures on a regular basis.
The only difference is that "goods" produced by the real estate business are house and
lot units. 84
Again, we disagree.
The equal protection clause under the Constitution means that "no person or class of
persons shall be deprived of the same protection of laws which is enjoyed by other
persons or other classes in the same place and in like circumstances." 85 Stated
differently, all persons belonging to the same class shall be taxed alike. It follows that the
guaranty of the equal protection of the laws is not violated by legislation based on a
reasonable classification. Classification, to be valid, must (1) rest on substantial
600
distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing
conditions only and (4) apply equally to all members of the same class. 86
The taxing power has the authority to make reasonable classifications for purposes of
taxation. 87 Inequalities which result from a singling out of one particular class for
taxation, or exemption, infringe no constitutional limitation. 88 The real estate industry is,
by itself, a class and can be validly treated differently from other business enterprises.
Petitioner, in insisting that its industry should be treated similarly as manufacturing
enterprises, fails to realize that what distinguishes the real estate business from other
manufacturing enterprises, for purposes of the imposition of the CWT, is not their
production processes but the prices of their goods sold and the number of transactions
involved. The income from the sale of a real property is bigger and its frequency of
transaction limited, making it less cumbersome for the parties to comply with the
withholding tax scheme.
On the other hand, each manufacturing enterprise may have tens of thousands of
transactions with several thousand customers every month involving both minimal and
substantial amounts. To require the customers of manufacturing enterprises, at present,
to withhold the taxes on each of their transactions with their tens or hundreds of suppliers
may result in an inefficient and unmanageable system of taxation and may well defeat the
purpose of the withholding tax system.
Petitioner counters that there are other businesses wherein expensive items are also sold
infrequently, e.g., heavy equipment, jewelry, furniture, appliance and other capital goods
yet these are not similarly subjected to the CWT. 89 As already discussed, the Secretary
may adopt any reasonable method to carry out its functions. 90 Under Section 57 (B), it
may choose what to subject to CWT.
A reading of Section 2.57.2 (M) of RR 2-98 will also show that petitioner's argument is not
accurate. The sales of manufacturers who have clients within the top 5,000 corporations,
as specified by the BIR, are also subject to CWT for their transactions with said 5,000
corporations. 91
SECTION 2.58.2 OF RR NO. 2-98 MERELY IMPLEMENTS SECTION 58 OF RA 8424
Lastly, petitioner assails Section 2.58.2 of RR 2-98, which provides that the Registry of
Deeds should not effect the regisration of any document transferring real property unless
a certification is issued by the CIR that the withholding tax has been paid. Petitioner
proffers hardly any reason to strike down this rule except to rely on its contention that the
CWT is unconstitutional. We have ruled that it is not. Furthermore, this provision uses
almost exactly the same wording as Section 58 (E) of RA 8424 and is unquestionably in
accordance with it:
Sec. 58. Returns and Payment of Taxes Withheld at Source.
(E) Registration with Register of Deeds. No registration of any document transferring
real property shall be effected by the Register of Deeds unless the [CIR] or his duly
authorized representative has certified that such transfer has been reported, and the
capital gains or [CWT], if any, has been paid: . . . any violation of this provision by the
Register of Deeds shall be subject to the penalties imposed under Section 269 of this
Code. (Emphasis supplied)
CONCLUSION
The renowned genius Albert Einstein was once quoted as saying "[the] hardest thing in
the world to understand is the income tax." 92 When a party questions the constitutionality
of an income tax measure, it has to contend not only with Einstein's observation but also
with the vast and well-established jurisprudence in support of the plenary powers of
Congress to impose taxes. Petitioner has miserably failed to discharge its burden of
convincing the Court that the imposition of MCIT and CWT is unconstitutional.
WHEREFORE, the petition is hereby DISMISSED.
Costs against petitioner.
SO ORDERED. HESCcA
Puno, C.J., Carpio, Carpio Morales, Velasco, Jr., Nachura, Leonardo-de Castro, Brion,
Bersamin, Abad, Peralta, Del Castillo, Villarama, Jr., Perez and Mendoza, JJ., concur.
601
||| (Chamber of Real Estate and Builders' Association, Inc. v. Romulo, G.R. No. 160756,
[March 9, 2010], 628 PHIL 508-547)
4. BIRAOGO VS. PHIL TRUTH 637 SCRA 78 (2010)
EN BANC
[G.R. No. 192935. December 7, 2010.]
LOUIS "BAROK" C. BIRAOGO, petitioner, vs. THE PHILIPPINE TRUTH COMMISSION
OF 2010, respondent.
[G.R. No. 193036. December 7, 2010.]
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A.
DATUMANONG, and REP. ORLANDO B. FUA, SR., petitioners, vs. EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO B. ABAD, respondents.
DECISION
MENDOZA, J p:
When the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that instrument secures
and guarantees to them.
Justice Jose P. Laurel 1
The role of the Constitution cannot be overlooked. It is through the Constitution that the
fundamental powers of government are established, limited and defined, and by which
these powers are distributed among the several departments. 2 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. 3 Constitutional doctrines must
remain steadfast no matter what may be the tides of time. It cannot be simply made to
sway and accommodate the call of situations and much more tailor itself to the whims
and caprices of government and the people who run it. 4
For consideration before the Court are two consolidated cases 5 both of which essentially
assail the validity and constitutionality of Executive Order No. 1, dated July 30, 2010,
entitled "Creating the Philippine Truth Commission of 2010."
The first case is G.R. No. 192935, a special civil action for prohibition instituted by
petitioner Louis Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo
assails Executive Order No. 1 for being violative of the legislative power of Congress
under Section 1, Article VI of the Constitution 6 as it usurps the constitutional authority of
the legislature to create a public office and to appropriate funds therefor. 7
The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition
filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and
Orlando B. Fua, Sr. (petitioners-legislators) as incumbent members of the House of
Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic May
2010 elections, when then Senator Benigno Simeon Aquino III declared his staunch
condemnation of graft and corruption with his slogan, "Kung walang corrupt, walang
mahirap." The Filipino people, convinced of his sincerity and of his ability to carry out this
noble objective, catapulted the good senator to the presidency. ITESAc
602
To transform his campaign slogan into reality, President Aquino found a need for a special
body to investigate reported cases of graft and corruption allegedly committed during the
previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive
Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth Commission).
Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly
enshrines the principle that a public office is a public trust and mandates that public
officers and employees, who are servants of the people, must at all times be accountable
to the latter, serve them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle
and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political,
economic, and social life of a nation; in a very special way it inflicts untold misfortune and
misery on the poor, the marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and
undermined the people's trust and confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding certain
reports of large scale graft and corruption in the government and to put a closure to them
by the filing of the appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the people's faith and confidence in the
Government and in their public servants;
WHEREAS, the President's battlecry during his campaign for the Presidency in the last
elections "kung walang corrupt, walang mahirap" expresses a solemn pledge that if
elected, he would end corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to investigating and
finding out the truth concerning the reported cases of graft and corruption during the
previous administration, and which will recommend the prosecution of the offenders and
secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise
known as the Revised Administrative Code of the Philippines, gives the President the
continuing authority to reorganize the Office of the President. cTIESa
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE
TRUTH COMMISSION, hereinafter referred to as the "COMMISSION," which shall
primarily seek and find the truth on, and toward this end, investigate reports of graft and
corruption of such scale and magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by public officers and employees, their coprincipals, accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or measure to
be taken thereon to ensure that the full measure of justice shall be served without fear or
favor.
603
The Commission shall be composed of a Chairman and four (4) members who will act as
an independent collegial body.
SECTION 2. Powers and Functions. The Commission, which shall have all the powers
of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code
of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third level public officers
and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will
investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the cases of
large scale corruption which it has chosen to investigate, and to this end require any
agency, official or employee of the Executive Branch, including government-owned or
controlled corporations, to produce documents, books, records and other papers;
c) Upon proper request or representation, obtain information and documents from the
Senate and the House of Representatives records of investigations conducted by
committees thereof relating to matters or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from the courts, including
the Sandiganbayan and the Office of the Court Administrator, information or documents
in respect to corruption cases filed with the Sandiganbayan or the regular courts, as the
case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose,
administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to
ensure that the ends of justice be fully served, that such person who qualifies as a state
witness under the Revised Rules of Court of the Philippines be admitted for that purpose;
TacADE
g) Turn over from time to time, for expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a special or interim report and recommendation, all
evidence on corruption of public officers and employees and their private sector coprincipals, accomplices or accessories, if any, when in the course of its investigation the
Commission finds that there is reasonable ground to believe that they are liable for graft
and corruption under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial agency such as the
Department of Justice or any of the agencies under it, and the Presidential Anti-Graft
Commission, for such assistance and cooperation as it may require in the discharge of
its functions and duties;
i) Engage or contract the services of resource persons, professionals and other personnel
determined by it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to
effectively and efficiently carry out the objectives of this Executive Order and to ensure
604
the orderly conduct of its investigations, proceedings and hearings, including the
presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection
with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. . . . .
SECTION 4. Detail of Employees. . . . .
SECTION 5. Engagement of Experts. . . .
SECTION 6. Conduct of Proceedings. . . . .
SECTION 7. Right to Counsel of Witnesses/Resource Persons. . . . .
SECTION 8. Protection of Witnesses/Resource Persons. . . . .
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any
government official or personnel who, without lawful excuse, fails to appear upon
subpoena issued by the Commission or who, appearing before the Commission refuses
to take oath or affirmation, give testimony or produce documents for inspection, when
required, shall be subject to administrative disciplinary action. Any private person who
does the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. . . . . .
SECTION 11. Budget for the Commission. The Office of the President shall provide
the necessary funds for the Commission to ensure that it can exercise its powers, execute
its functions, and perform its duties and responsibilities as effectively, efficiently, and
expeditiously as possible. aDSAEI
SECTION 12. Office. . . . .
SECTION 13. Furniture/Equipment. . . . .
SECTION 14. Term of the Commission. The Commission shall accomplish its mission
on or before December 31, 2012.
SECTION 15. Publication of Final Report. . . . .
SECTION 16. Transfer of Records and Facilities of the Commission. . . . .
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of
the President there is a need to expand the mandate of the Commission as defined in
Section 1 hereof to include the investigation of cases and instances of graft and corruption
during the prior administrations, such mandate may be so extended accordingly by way
of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is declared
unconstitutional, the same shall not affect the validity and effectivity of the other provisions
hereof.
SECTION 19. Effectivity. This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
605
(SGD.) BENIGNO S. AQUINO III

By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth Commission
(PTC) is a mere ad hoc body formed under the Office of the President with the primary
task to investigate reports of graft and corruption committed by third-level public officers
and employees, their co-principals, accomplices and accessories during the previous
administration, and thereafter to submit its finding and recommendations to the President,
Congress and the Ombudsman. Though it has been described as an "independent
collegial body," it is essentially an entity within the Office of the President Proper and
subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is one.
8
To accomplish its task, the PTC shall have all the powers of an investigative body under
Section 37, Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a
quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in
disputes between contending parties. All it can do is gather, collect and assess evidence
of graft and corruption and make recommendations. It may have subpoena powers but it
has no power to cite people in contempt, much less order their arrest. Although it is a factfinding body, it cannot determine from such facts if probable cause exists as to warrant
the filing of an information in our courts of law. Needless to state, it cannot impose
criminal, civil or administrative penalties or sanctions. cADaIH
The PTC is different from the truth commissions in other countries which have been
created as official, transitory and non-judicial fact-finding bodies "to establish the facts
and context of serious violations of human rights or of international humanitarian law in a
country's past." 9 They are usually established by states emerging from periods of internal
unrest, civil strife or authoritarianism to serve as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the following
characteristics: (1) they examine only past events; (2) they investigate patterns of abuse
committed over a period of time, as opposed to a particular event; (3) they are temporary
bodies that finish their work with the submission of a report containing conclusions and
recommendations; and (4) they are officially sanctioned, authorized or empowered by the
State. 10 "Commission's members are usually empowered to conduct research, support
victims, and propose policy recommendations to prevent recurrence of crimes. Through
their investigations, the commissions may aim to discover and learn more about past
abuses, or formally acknowledge them. They may aim to prepare the way for prosecutions
and recommend institutional reforms." 11
Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo
war crime tribunals are examples of a retributory or vindicatory body set up to try and
punish those responsible for crimes against humanity. A form of a reconciliatory tribunal
is the Truth and Reconciliation Commission of South Africa, the principal function of which
was to heal the wounds of past violence and to prevent future conflict by providing a
cathartic experience for victims.
The PTC is a far cry from South Africa's model. The latter placed more emphasis on
reconciliation than on judicial retribution, while the marching order of the PTC is the
identification and punishment of perpetrators. As one writer 12 puts it:
The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino
in his inaugural speech: "To those who talk about reconciliation, if they mean that they
would like us to simply forget about the wrongs that they have committed in the past, we
have this to say: There can be no reconciliation without justice. When we allow crimes to
go unpunished, we give consent to their occurring over and over again."
606
The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the petitioners asked the
Court to declare it unconstitutional and to enjoin the PTC from performing its functions. A
perusal of the arguments of the petitioners in both cases shows that they are essentially
the same. The petitioners-legislators summarized them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress
to create a public office and appropriate funds for its operation. cAaTED
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987
cannot legitimize E.O. No. 1 because the delegated authority of the President to
structurally reorganize the Office of the President to achieve economy, simplicity and
efficiency does not include the power to create an entirely new public office which was
hitherto inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the
"Truth Commission" with quasi-judicial powers duplicating, if not superseding, those of
the Office of the Ombudsman created under the 1987 Constitution and the Department
of Justice created under the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation
and prosecution officials and personnel of the previous administration as if corruption is
their peculiar species even as it excludes those of the other administrations, past and
present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and
general international practice of four decades wherein States constitute truth
commissions to exclusively investigate human rights violations, which customary practice
forms part of the generally accepted principles of international law which the Philippines
is mandated to adhere to pursuant to the Declaration of Principles enshrined in the
Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in
partisan hostility, a launching pad for trial/conviction by publicity and a mere populist
propaganda to mistakenly impress the people that widespread poverty will altogether
vanish if corruption is eliminated without even addressing the other major causes of
poverty.
(g) The mere fact that previous commissions were not constitutionally challenged is of no
moment because neither laches nor estoppel can bar an eventual question on the
constitutionality and validity of an executive issuance or even a statute." 13
In their Consolidated Comment, 14 the respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal standing of petitioners and defended the
assailed executive order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because
the President's executive power and power of control necessarily include the inherent
power to conduct investigations to ensure that laws are faithfully executed and that, in
any event, the Constitution, Revised Administrative Code of 1987 (E.O. No. 292), 15
Presidential Decree (P.D.) No. 1416 16 (as amended by P.D. No. 1772), R.A. No. 9970,
17 and settled jurisprudence that authorize the President to create or form such bodies.
DIAcTE
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there
is no appropriation but a mere allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions of the Office of
the Ombudsman (Ombudsman) and the Department of Justice (DOJ), because it is a
607
fact-finding body and not a quasi-judicial body and its functions do not duplicate, supplant
or erode the latter's jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was
validly created for laudable purposes.
The OSG then points to the continued existence and validity of other executive orders
and presidential issuances creating similar bodies to justify the creation of the PTC such
as Presidential Complaint and Action Commission (PCAC) by President Ramon B.
Magsaysay, Presidential Committee on Administrative Performance Efficiency (PCAPE)
by President Carlos P. Garcia and Presidential Agency on Reform and Government
Operations (PARGO) by President Ferdinand E. Marcos. 18
From the petitions, pleadings, transcripts, and memoranda, the following are the principal
issues to be resolved:
1. Whether or not the petitioners have the legal standing to file their respective petitions
and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of separation of powers by
usurping the powers of Congress to create and to appropriate funds for public offices,
agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and
the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1,
the Court needs to ascertain whether the requisites for a valid exercise of its power of
judicial review are present.
Like almost all powers conferred by the Constitution, the power of judicial review is subject
to limitations, to wit: (1) there must be an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act must have the standing to
question the validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis
mota of the case. 19 AIHDcC
Among all these limitations, only the legal standing of the petitioners has been put at
issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file their petition for
failure to demonstrate their personal stake in the outcome of the case. It argues that the
petitioners have not shown that they have sustained or are in danger of sustaining any
personal injury attributable to the creation of the PTC. Not claiming to be the subject of
the commission's investigations, petitioners will not sustain injury in its creation or as a
result of its proceedings. 20
The Court disagrees with the OSG in questioning the legal standing of the petitionerslegislators to assail Executive Order No. 1. Evidently, their petition primarily invokes
usurpation of the power of the Congress as a body to which they belong as members.
This certainly justifies their resolve to take the cudgels for Congress as an institution and
present the complaints on the usurpation of their power and rights as members of the
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legislature before the Court. As held in Philippine Constitution Association v. Enriquez,

21
To the extent the powers of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise of the powers of that
institution.
An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In
such a case, any member of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and
privileges vested by the Constitution in their office remain inviolate. Thus, they are allowed
to question the validity of any official action which, to their mind, infringes on their
prerogatives as legislators. 22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to
question the creation of the PTC and the budget for its operations. 23 It emphasizes that
the funds to be used for the creation and operation of the commission are to be taken
from those funds already appropriated by Congress. Thus, the allocation and
disbursement of funds for the commission will not entail congressional action but will
simply be an exercise of the President's power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in
danger of sustaining, any personal and direct injury attributable to the implementation of
Executive Order No. 1. Nowhere in his petition is an assertion of a clear right that may
justify his clamor for the Court to exercise judicial power and to wield the axe over
presidential issuances in defense of the Constitution. The case of David v. Arroyo 24
explained the deep-seated rules on locus standi. Thus: ACcHIa
Locus standi is defined as "a right of appearance in a court of justice on a given question."
In private suits, standing is governed by the "real-parties-in interest" rule as contained in
Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that
"every action must be prosecuted or defended in the name of the real party in interest."
Accordingly, the "real-party-in interest" is "the party who stands to be benefited or injured
by the judgment in the suit or the party entitled to the avails of the suit." Succinctly put,
the plaintiff's standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who
asserts a "public right" in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently
from any other person. He could be suing as a "stranger," or in the category of a "citizen,"
or "taxpayer." In either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that
the plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit.
In the former, the plaintiff is affected by the expenditure of public funds, while in the latter,
he is but the mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins: "In matter of mere public right, however . . . the
people are the real parties . . . It is at least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly pursued and punished, and that a
public grievance be remedied." With respect to taxpayer's suits, Terr v. Jordan held that
"the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful
use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United State Supreme Court laid down the more
609
stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The
same Court ruled that for a private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a general interest
common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held 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."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate, Manila Race Horse Trainers' Association v. De la Fuente, Pascual v. Secretary
of Public Works and Anti-Chinese League of the Philippines v. Felix. [Emphases included.
Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on standing 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 overreaching significance to society, or of paramount
public interest." 25 cDAITS
Thus, in Coconut Oil Refiners Association, Inc. v. Torres, 26 the Court held that in cases
of paramount importance where serious constitutional questions are involved, the
standing requirements may be relaxed and a suit may be allowed to prosper even where
there is no direct injury to the party claiming the right of judicial review. In the first
Emergency Powers Cases, 27 ordinary citizens and taxpayers were allowed to question
the constitutionality of several executive orders although they had only an indirect and
general interest shared in common with the public.
The OSG claims that the determinants of transcendental importance 28 laid down in
CREBA v. ERC and Meralco 29 are non-existent in this case. The Court, however, finds
reason in Biraogo's assertion that the petition covers matters of transcendental
importance to justify the exercise of jurisdiction by the Court. There are constitutional
issues in the petition which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Where the issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar, they should be
resolved for the guidance of all. 30 Undoubtedly, the Filipino people are more than
interested to know the status of the President's first effort to bring about a promised
change to the country. The Court takes cognizance of the petition not due to
overwhelming political undertones that clothe the issue in the eyes of the public, but
because the Court stands firm in its oath to perform its constitutional duty to settle legal
controversies with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a
public office and not merely an adjunct body of the Office of the President. 31 Thus, in
order that the President may create a public office he must be empowered by the
Constitution, a statute or an authorization vested in him by law. According to petitioner,
such power cannot be presumed 32 since there is no provision in the Constitution or any
specific law that authorizes the President to create a truth commission. 33 He adds that
Section 31 of the Administrative Code of 1987, granting the President the continuing
authority to reorganize his office, cannot serve as basis for the creation of a truth
commission considering the aforesaid provision merely uses verbs such as "reorganize,"
"transfer," "consolidate," "merge," and "abolish." 34 Insofar as it vests in the President the
plenary power to reorganize the Office of the President to the extent of creating a public
office, Section 31 is inconsistent with the principle of separation of powers enshrined in
the Constitution and must be deemed repealed upon the effectivity thereof. 35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public
office lies within the province of Congress and not with the executive branch of
government. They maintain that the delegated authority of the President to reorganize
under Section 31 of the Revised Administrative Code: 1) does not permit the President to
610
create a public office, much less a truth commission; 2) is limited to the reorganization of
the administrative structure of the Office of the President; 3) is limited to the restructuring
of the internal organs of the Office of the President Proper, transfer of functions and
transfer of agencies; and 4) only to achieve simplicity, economy and efficiency. 36 Such
continuing authority of the President to reorganize his office is limited, and by issuing
Executive Order No. 1, the President overstepped the limits of this delegated authority.
HCEaDI
The OSG counters that there is nothing exclusively legislative about the creation by the
President of a fact-finding body such as a truth commission. Pointing to numerous offices
created by past presidents, it argues that the authority of the President to create public
offices within the Office of the President Proper has long been recognized. 37 According
to the OSG, the Executive, just like the other two branches of government, possesses the
inherent authority to create fact-finding committees to assist it in the performance of its
constitutionally mandated functions and in the exercise of its administrative functions. 38
This power, as the OSG explains it, is but an adjunct of the plenary powers wielded by
the President under Section 1 and his power of control under Section 17, both of Article
VII of the Constitution. 39
It contends that the President is necessarily vested with the power to conduct fact-finding
investigations, pursuant to his duty to ensure that all laws are enforced by public officials
and employees of his department and in the exercise of his authority to assume directly
the functions of the executive department, bureau and office, or interfere with the
discretion of his officials. 40 The power of the President to investigate is not limited to the
exercise of his power of control over his subordinates in the executive branch, but extends
further in the exercise of his other powers, such as his power to discipline subordinates,
41 his power for rule making, adjudication and licensing purposes 42 and in order to be
informed on matters which he is entitled to know. 43
The OSG also cites the recent case of Banda v. Ermita, 44 where it was held that the
President has the power to reorganize the offices and agencies in the executive
department in line with his constitutionally granted power of control and by virtue of a valid
delegation of the legislative power to reorganize executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the power to
create offices. For the OSG, the President may create the PTC in order to, among others,
put a closure to the reported large scale graft and corruption in the government. 45
The question, therefore, before the Court is this: Does the creation of the PTC fall within
the ambit of the power to reorganize as expressed in Section 31 of the Revised
Administrative Code? Section 31 contemplates "reorganization" as limited by the
following functional and structural lines: (1) restructuring the internal organization of the
Office of the President Proper by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another; (2) transferring any function under the
Office of the President to any other Department/Agency or vice versa; or (3) transferring
any agency under the Office of the President to any other Department/Agency or vice
versa. Clearly, the provision refers to reduction of personnel, consolidation of offices, or
abolition thereof by reason of economy or redundancy of functions. These point to
situations where a body or an office is already existent but a modification or alteration
thereof has to be effected. The creation of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the President under
Section 31 is a misplaced supposition, even in the plainest meaning attributable to the
term "restructure" an "alteration of an existing structure." Evidently, the PTC was not
part of the structure of the Office of the President prior to the enactment of Executive
Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary, 46 aSIAHC
But of course, the list of legal basis authorizing the President to reorganize any
department or agency in the executive branch does not have to end here. We must not
lose sight of the very source of the power that which constitutes an express grant of
power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the
Administrative Code of 1987), "the President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have the continuing
611
authority to reorganize the administrative structure of the Office of the President." For this
purpose, he may transfer the functions of other Departments or Agencies to the Office of
the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of functions." It takes place when there is
an alteration of the existing structure of government offices or units therein, including the
lines of control, authority and responsibility between them. The EIIB is a bureau attached
to the Department of Finance. It falls under the Office of the President. Hence, it is subject
to the President's continuing authority to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the President's power of
control. Control is essentially the power to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the
judgment of the former with that of the latter. 47 Clearly, the power of control is entirely
different from the power to create public offices. The former is inherent in the Executive,
while the latter finds basis from either a valid delegation from Congress, or his inherent
duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress, empowering the
President to create a public office?
According to the OSG, the power to create a truth commission pursuant to the above
provision finds statutory basis under P.D. 1416, as amended by P.D. No. 1772. 48 The
said law granted the President the continuing authority to reorganize the national
government, including the power to group, consolidate bureaus and agencies, to abolish
offices, to transfer functions, to create and classify functions, services and activities,
transfer appropriations, and to standardize salaries and materials. This decree, in relation
to Section 20, Title I, Book III of E.O. 292 has been invoked in several cases such as
Larin v. Executive Secretary. 49
The Court, however, declines to recognize P.D. No. 1416 as a justification for the
President to create a public office. Said decree is already stale, anachronistic and
inoperable. P.D. No. 1416 was a delegation to then President Marcos of the authority to
reorganize the administrative structure of the national government including the power to
create offices and transfer appropriations pursuant to one of the purposes of the decree,
embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of government will necessitate
flexibility in the organization of the national government.
Clearly, as it was only for the purpose of providing manageability and resiliency during
the interim, P.D. No. 1416, as amended by P.D. No. 1772, became functus oficio upon
the convening of the First Congress, as expressly provided in Section 6, Article XVIII of
the 1987 Constitution. In fact, even the Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO:
Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416 says "it was
enacted to prepare the transition from presidential to parliamentary. Now, in a
parliamentary form of government, the legislative and executive powers are fused,
correct?
SOLICITOR GENERAL CADIZ:
Yes, Your Honor.
That is why, that P.D. 1416 was issued. Now would you agree with me that P.D. 1416
should not be considered effective anymore upon the promulgation, adoption, ratification
of the 1987 Constitution.
612

Not the whole of P.D. [No.] 1416, Your Honor.
The power of the President to reorganize the entire National Government is deemed
repealed, at least, upon the adoption of the 1987 Constitution, correct. cHSIDa
Yes, Your Honor. 50
While the power to create a truth commission cannot pass muster on the basis of P.D.
No. 1416 as amended by P.D. No. 1772, the creation of the PTC finds justification under
Section 17, Article VII of the Constitution, imposing upon the President the duty to ensure
that the laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the three principal
branches of government is a grant of all powers inherent in them. The President's power
to conduct investigations to aid him in ensuring the faithful execution of laws in this
case, fundamental laws on public accountability and transparency is inherent in the
President's powers as the Chief Executive. That the authority of the President to conduct
investigations and to create bodies to execute this power is not explicitly mentioned in the
Constitution or in statutes does not mean that he is bereft of such authority. 51 As
explained in the landmark case of Marcos v. Manglapus: 52
. . . . The 1987 Constitution, however, brought back the presidential system of government
and restored the separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with provision for checks and
balances.
It would not be accurate, however, to state that "executive power" is the power to enforce
the laws, for the President is head of state as well as head of government and whatever
powers inhere in such positions pertain to the office unless the Constitution itself
withholds it. Furthermore, the Constitution itself provides that the execution of the laws is
only one of the powers of the President. It also grants the President other powers that do
not involve the execution of any provision of law, e.g., his power over the country's foreign
relations.
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power." Corollarily, the powers
of the President cannot be said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more than the sum of specific powers
so enumerated.
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. . . . . cSATEH
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully
executed. As stated above, the powers of the President are not limited to those specific
powers under the Constitution. 53 One of the recognized powers of the President granted
pursuant to this constitutionally-mandated duty is the power to create ad hoc committees.
This flows from the obvious need to ascertain facts and determine if laws have been
faithfully executed. Thus, in Department of Health v. Camposano, 54 the authority of the
613
President to issue Administrative Order No. 298, creating an investigative committee to

look into the administrative charges filed against the employees of the Department of
Health for the anomalous purchase of medicines was upheld. In said case, it was ruled:
The Chief Executive's power to create the Ad hoc Investigating Committee cannot be
doubted. Having been constitutionally granted full control of the Executive Department,
to which respondents belong, the President has the obligation to ensure that all executive
officials and employees faithfully comply with the law. With AO 298 as mandate, the
legality of the investigation is sustained. Such validity is not affected by the fact that the
investigating team and the PCAGC had the same composition, or that the former used
the offices and facilities of the latter in conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is
to allow an inquiry into matters which the President is entitled to know so that he can be
properly advised and guided in the performance of his duties relative to the execution and
enforcement of the laws of the land. And if history is to be revisited, this was also the
objective of the investigative bodies created in the past like the PCAC, PCAPE, PARGO,
the Feliciano Commission, the Melo Commission and the Zenarosa Commission. There
being no changes in the government structure, the Court is not inclined to declare such
executive power as non-existent just because the direction of the political winds have
changed.
On the charge that Executive Order No. 1 transgresses the power of Congress to
appropriate funds for the operation of a public office, suffice it to say that there will be no
appropriation but only an allotment or allocations of existing funds already appropriated.
Accordingly, there is no usurpation on the part of the Executive of the power of Congress
to appropriate funds. Further, there is no need to specify the amount to be earmarked for
the operation of the commission because, in the words of the Solicitor General, "whatever
funds the Congress has provided for the Office of the President will be the very source of
the funds for the commission." 55 Moreover, since the amount that would be allocated to
the PTC shall be subject to existing auditing rules and regulations, there is no impropriety
in the funding.
Power of the Truth Commission to Investigate
The President's power to conduct investigations to ensure that laws are faithfully executed
is well recognized. It flows from the faithful-execution clause of the Constitution under
Article VII, Section 17 thereof. 56 As the Chief Executive, the president represents the
government as a whole and sees to it that all laws are enforced by the officials and
employees of his department. He has the authority to directly assume the functions of the
executive department. 57
Invoking this authority, the President constituted the PTC to primarily investigate reports
of graft and corruption and to recommend the appropriate action. As previously stated,
no quasi-judicial powers have been vested in the said body as it cannot adjudicate rights
of persons who come before it. It has been said that "Quasi-judicial powers involve the
power to hear and determine questions of fact to which the legislative policy is to apply
and to decide in accordance with the standards laid down by law itself in enforcing and
administering the same law." 58 In simpler terms, judicial discretion is involved in the
exercise of these quasi-judicial power, such that it is exclusively vested in the judiciary
and must be clearly authorized by the legislature in the case of administrative agencies.
caAICE
The distinction between the power to investigate and the power to adjudicate was
delineated by the Court in Cario v. Commission on Human Rights. 59 Thus:
"Investigate," commonly understood, means to examine, explore, inquire or delve or
probe into, research on, study. The dictionary definition of "investigate" is "to observe or
study closely: inquire into systematically: "to search or inquire into: . . . to subject to an
official probe . . . : to conduct an official inquiry." The purpose of investigation, of course,
is to discover, to find out, to learn, obtain information. Nowhere included or intimated is
the notion of settling, deciding or resolving a controversy involved in the facts inquired
into by application of the law to the facts established by the inquiry.
614
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by
patient inquiry or observation. To trace or track; to search into; to examine and inquire
into with care and accuracy; to find out by careful inquisition; examination; the taking of
evidence; a legal inquiry;" "to inquire; to make an investigation," "investigation" being in
turn described as "(a)n administrative function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the
discovery and collection of facts concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge,
decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle
finally (the rights and duties of the parties to a court case) on the merits of issues raised:
. . . to pass judgment on: settle judicially: . . . act as judge." And "adjudge" means "to
decide or rule upon as a judge or with judicial or quasi-judicial powers: . . . to award or
grant judicially in a case of controversy . . . ." HScaCT
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To
determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means:
"To pass on judicially, to decide, settle or decree, or to sentence or condemn. . . . . Implies
a judicial determination of a fact, and the entry of a judgment." [Italics included. Citations
Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court
of justice, or even a quasi-judicial agency or office. The function of receiving evidence
and ascertaining therefrom the facts of a controversy is not a judicial function. To be
considered as such, the act of receiving evidence and arriving at factual conclusions in a
controversy must be accompanied by the authority of applying the law to the factual
conclusions to the end that the controversy may be decided or resolved authoritatively,
finally and definitively, subject to appeals or modes of review as may be provided by law.
60 Even respondents themselves admit that the commission is bereft of any quasi-judicial
power. 61
Contrary to petitioners' apprehension, the PTC will not supplant the Ombudsman or the
DOJ or erode their respective powers. If at all, the investigative function of the commission
will complement those of the two offices. As pointed out by the Solicitor General, the
recommendation to prosecute is but a consequence of the overall task of the commission
to conduct a fact-finding investigation." 62 The actual prosecution of suspected offenders,
much less adjudication on the merits of the charges against them, 63 is certainly not a
function given to the commission. The phrase, "when in the course of its investigation,"
under Section 2 (g), highlights this fact and gives credence to a contrary interpretation
from that of the petitioners. The function of determining probable cause for the filing of
the appropriate complaints before the courts remains to be with the DOJ and the
Ombudsman. 64
At any rate, the Ombudsman's power to investigate under R.A. No. 6770 is not exclusive
but is shared with other similarly authorized government agencies. Thus, in the case of
Ombudsman v. Galicia, 65 it was written:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with other similarly authorized government
agencies such as the PCGG and judges of municipal trial courts and municipal circuit trial
courts. The power to conduct preliminary investigation on charges against public
employees and officials is likewise concurrently shared with the Department of Justice.
Despite the passage of the Local Government Code in 1991, the Ombudsman retains
concurrent jurisdiction with the Office of the President and the local Sanggunians to
investigate complaints against local elective officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to
investigate criminal cases under Section 15 (1) of R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or omission
615
appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it may
take over, at any stage, from any investigatory agency of government, the investigation
of such cases. [Emphases supplied] AIHDcC
The act of investigation by the Ombudsman as enunciated above contemplates the
conduct of a preliminary investigation or the determination of the existence of probable
cause. This is categorically out of the PTC's sphere of functions. Its power to investigate
is limited to obtaining facts so that it can advise and guide the President in the
performance of his duties relative to the execution and enforcement of the laws of the
land. In this regard, the PTC commits no act of usurpation of the Ombudsman's primordial
duties.
The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter
1, Title III, Book IV in the Revised Administrative Code is by no means exclusive and,
thus, can be shared with a body likewise tasked to investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC
are to be accorded conclusiveness. Much like its predecessors, the Davide Commission,
the Feliciano Commission and the Zenarosa Commission, its findings would, at best, be
recommendatory in nature. And being so, the Ombudsman and the DOJ have a wider
degree of latitude to decide whether or not to reject the recommendation. These offices,
therefore, are not deprived of their mandated duties but will instead be aided by the
reports of the PTC for possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative power of the
President, the Court finds difficulty in upholding the constitutionality of Executive Order
No. 1 in view of its apparent transgression of the equal protection clause enshrined in
Section 1, Article III (Bill of Rights) of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative of this constitutional
safeguard. They contend that it does not apply equally to all members of the same class
such that the intent of singling out the "previous administration" as its sole object makes
the PTC an "adventure in partisan hostility." 66 Thus, in order to be accorded with validity,
the commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo. 67
The petitioners argue that the search for truth behind the reported cases of graft and
corruption must encompass acts committed not only during the administration of former
President Arroyo but also during prior administrations where the "same magnitude of
controversies and anomalies" 68 were reported to have been committed against the
Filipino people. They assail the classification formulated by the respondents as it does
not fall under the recognized exceptions because first, "there is no substantial distinction
between the group of officials targeted for investigation by Executive Order No. 1 and
other groups or persons who abused their public office for personal gain; and second, the
selective classification is not germane to the purpose of Executive Order No. 1 to end
corruption." 69 In order to attain constitutional permission, the petitioners advocate that
the commission should deal with "graft and grafters prior and subsequent to the Arroyo
administration with the strong arm of the law with equal force." 70 cEaDTA
Position of respondents
According to respondents, while Executive Order No. 1 identifies the "previous
administration" as the initial subject of the investigation, following Section 17 thereof, the
PTC will not confine itself to cases of large scale graft and corruption solely during the
said administration. 71 Assuming arguendo that the commission would confine its
proceedings to officials of the previous administration, the petitioners argue that no
offense is committed against the equal protection clause for "the segregation of the
transactions of public officers during the previous administration as possible subjects of
investigation is a valid classification based on substantial distinctions and is germane to
616
the evils which the Executive Order seeks to correct." 72 To distinguish the Arroyo
administration from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale graft and
corruption in the previous administration which have eroded public confidence in public
institutions. There is, therefore, an urgent call for the determination of the truth regarding
certain reports of large scale graft and corruption in the government and to put a closure
to them by the filing of the appropriate cases against those involved, if warranted, and to
deter others from committing the evil, restore the people's faith and confidence in the
Government and in their public servants.
Second. The segregation of the preceding administration as the object of fact-finding is
warranted by the reality that unlike with administrations long gone, the current
administration will most likely bear the immediate consequence of the policies of the
previous administration.
Third. The classification of the previous administration as a separate class for
investigation lies in the reality that the evidence of possible criminal activity, the evidence
that could lead to recovery of public monies illegally dissipated, the policy lessons to be
learned to ensure that anti-corruption laws are faithfully executed, are more easily
established in the regime that immediately precede the current administration.
Fourth. Many administrations subject the transactions of their predecessors to
investigations to provide closure to issues that are pivotal to national life or even as a
routine measure of due diligence and good housekeeping by a nascent administration
like the Presidential Commission on Good Government (PCGG), created by the late
President Corazon C. Aquino under Executive Order No. 1 to pursue the recovery of illgotten wealth of her predecessor former President Ferdinand Marcos and his cronies,
and the Saguisag Commission created by former President Joseph Estrada under
Administrative Order No, 53, to form an ad-hoc and independent citizens' committee to
investigate all the facts and circumstances surrounding "Philippine Centennial projects"
of his predecessor, former President Fidel V. Ramos. 73 [Emphases supplied] TcHEaI
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of the equality
of right which is embodied in Section 1, Article III of the 1987 Constitution. The equal
protection of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has been embodied in
a separate clause, however, to provide for a more specific guaranty against any form of
undue favoritism or hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is
the equal protection clause. 74
"According to a long line of decisions, equal protection simply requires that all persons or
things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed." 75 It "requires public bodies and institutions to treat similarly
situated individuals in a similar manner." 76 "The purpose of the equal protection clause
is to secure every person within a state's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper
execution through the state's duly constituted authorities." 77 "In other words, the concept
of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate
governmental objective." 78
The equal protection clause is aimed at all official state actions, not just those of the
legislature. 79 Its inhibitions cover all the departments of the government including the
political and executive departments, and extend to all actions of a state denying equal
protection of the laws, through whatever agency or whatever guise is taken. 80
617
It, however, does not require the universal application of the laws to all persons or things
without distinction. What it simply requires is equality among equals as determined
according to a valid classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on substantial
distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing
conditions only; and (4) It applies equally to all members of the same class. 81 "Superficial
differences do not make for a valid classification." 82
For a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class. 83 "The classification will be
regarded as invalid if all the members of the class are not similarly treated, both as to
rights conferred and obligations imposed. It is not necessary that the classification be
made with absolute symmetry, in the sense that the members of the class should possess
the same characteristics in equal degree. Substantial similarity will suffice; and as long
as this is achieved, all those covered by the classification are to be treated equally. The
mere fact that an individual belonging to a class differs from the other members, as long
as that class is substantially distinguishable from all others, does not justify the nonapplication of the law to him." 84 cSICHD
The classification must not be based on existing circumstances only, or so constituted as
to preclude addition to the number included in the class. It must be of such a nature as to
embrace all those who may thereafter be in similar circumstances and conditions. It must
not leave out or "underinclude" those that should otherwise fall into a certain classification.
As elucidated in Victoriano v. Elizalde Rope Workers' Union 85 and reiterated in a long
line of cases, 86
The guaranty of equal protection of the laws is not a guaranty of equality in the application
of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to
avoid the constitutional prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not forbid discrimination
as to things that are different. It does not prohibit legislation which is limited either in the
object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the grouping
of things in speculation or practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The very idea of classification
is that of inequality, so that it goes without saying that the mere fact of inequality in no
manner determines the matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means that the classification should be based
on substantial distinctions which make for real differences, that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must
apply equally to each member of the class. This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable foundation or rational
basis and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be struck down as
violative of the equal protection clause. The clear mandate of the envisioned truth
commission is to investigate and find out the truth "concerning the reported cases of graft
and corruption during the previous administration" 87 only. The intent to single out the
previous administration is plain, patent and manifest. Mention of it has been made in at
least three portions of the questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to investigating and
finding out the truth concerning the reported cases of graft and corruption during the
618
previous administration, and which will recommend the prosecution of the offenders and
secure justice for all;
SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE
TRUTH COMMISSION, hereinafter referred to as the "COMMISSION," which shall
primarily seek and find the truth on, and toward this end, investigate reports of graft and
corruption of such scale and magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by public officers and employees, their coprincipals, accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or measure to
be taken thereon to ensure that the full measure of justice shall be served without fear or
favor.
SECTION 2. Powers and Functions. The Commission, which shall have all the powers
of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code
of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third level public officers
and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman. [Emphases supplied]
HIaSDc
In this regard, it must be borne in mind that the Arroyo administration is but just a member
of a class, that is, a class of past administrations. It is not a class of its own. Not to include
past administrations similarly situated constitutes arbitrariness which the equal protection
clause cannot sanction. Such discriminating differentiation clearly reverberates to label
the commission as a vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the Arroyo administration and
other past administrations, these distinctions are not substantial enough to merit the
restriction of the investigation to the "previous administration" only. The reports of
widespread corruption in the Arroyo administration cannot be taken as basis for
distinguishing said administration from earlier administrations which were also blemished
by similar widespread reports of impropriety. They are not inherent in, and do not inure
solely to, the Arroyo administration. As Justice Isagani Cruz put it, "Superficial differences
do not make for a valid classification." 88
The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope
of the intended investigation to the previous administration only. The OSG ventures to
opine that "to include other past administrations, at this point, may unnecessarily
overburden the commission and lead it to lose its effectiveness." 89 The reason given is
specious. It is without doubt irrelevant to the legitimate and noble objective of the PTC to
stamp out or "end corruption and the evil it breeds." 90
The probability that there would be difficulty in unearthing evidence or that the earlier
reports involving the earlier administrations were already inquired into is beside the point.
Obviously, deceased presidents and cases which have already prescribed can no longer
be the subjects of inquiry by the PTC. Neither is the PTC expected to conduct
simultaneous investigations of previous administrations, given the body's limited time and
resources. "The law does not require the impossible" (Lex non cogit ad impossibilia). 91
Given the foregoing physical and legal impossibility, the Court logically recognizes the
unfeasibility of investigating almost a century's worth of graft cases. However, the fact
remains that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be
true to its mandate of searching for the truth, must not exclude the other past
administrations. The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not be arbitrary lest
it be struck down for being unconstitutional. In the often quoted language of Yick Wo v.
Hopkins, 92
Though the law itself be fair on its face and impartial in appearance, yet, if applied and
administered by public authority with an evil eye and an unequal hand, so as practically
619
to make unjust and illegal discriminations between persons in similar circumstances,

material to their rights, the denial of equal justice is still within the prohibition of the
constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its scope is limited.
The Court, however, is of the considered view that although its focus is restricted, the
constitutional guarantee of equal protection under the laws should not in any way be
circumvented. The Constitution is the fundamental and paramount law of the nation to
which all other laws must conform and in accordance with which all private rights
determined and all public authority administered. 93 Laws that do not conform to the
Constitution should be stricken down for being unconstitutional. 94 While the thrust of the
PTC is specific, that is, for investigation of acts of graft and corruption, Executive Order
No. 1, to survive, must be read together with the provisions of the Constitution. To exclude
the earlier administrations in the guise of "substantial distinctions" would only confirm the
petitioners' lament that the subject executive order is only an "adventure in partisan
hostility." In the case of US v. Cyprian, 95 it was written: "A rather limited number of such
classifications have routinely been held or assumed to be arbitrary; those include: race,
national origin, gender, political activity or membership in a political party, union activity
or membership in a labor union, or more generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the class. 96 "Such a
classification must not be based on existing circumstances only, or so constituted as to
preclude additions to the number included within a class, but must be of such a nature as
to embrace all those who may thereafter be in similar circumstances and conditions.
Furthermore, all who are in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from those of the members of
the class must be brought under the influence of the law and treated by it in the same
way as are the members of the class." 97 TaDAIS
The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law
under the equal protection clause." 98 "Legislation is not unconstitutional merely because
it is not all-embracing and does not include all the evils within its reach." 99 It has been
written that a regulation challenged under the equal protection clause is not devoid of a
rational predicate simply because it happens to be incomplete. 100 In several instances,
the underinclusiveness was not considered a valid reason to strike down a law or
regulation where the purpose can be attained in future legislations or regulations. These
cases refer to the "step by step" process. 101 "With regard to equal protection claims, a
legislature does not run the risk of losing the entire remedial scheme simply because it
fails, through inadvertence or otherwise, to cover every evil that might conceivably have
been attacked." 102
In Executive Order No. 1, however, there is no inadvertence. That the previous
administration was picked out was deliberate and intentional as can be gleaned from the
fact that it was underscored at least three times in the assailed executive order. It must
be noted that Executive Order No. 1 does not even mention any particular act, event or
report to be focused on unlike the investigative commissions created in the past. "The
equal protection clause is violated by purposeful and intentional discrimination." 103
To disprove petitioners' contention that there is deliberate discrimination, the OSG
clarifies that the commission does not only confine itself to cases of large scale graft and
corruption committed during the previous administration. 104 The OSG points to Section
17 of Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of
the President there is a need to expand the mandate of the Commission as defined in
Section 1 hereof to include the investigation of cases and instances of graft and corruption
during the prior administrations, such mandate may be so extended accordingly by way
of a supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the President the discretion to
expand the scope of investigations of the PTC so as to include the acts of graft and
620
corruption committed in other past administrations, it does not guarantee that they would
be covered in the future. Such expanded mandate of the commission will still depend on
the whim and caprice of the President. If he would decide not to include them, the section
would then be meaningless. This will only fortify the fears of the petitioners that the
Executive Order No. 1 was "crafted to tailor-fit the prosecution of officials and
personalities of the Arroyo administration." 105
The Court tried to seek guidance from the pronouncement in the case of Virata v.
Sandiganbayan, 106 that the "PCGG Charter (composed of Executive Orders Nos. 1, 2
and 14) does not violate the equal protection clause." The decision, however, was devoid
of any discussion on how such conclusory statement was arrived at, the principal issue
in said case being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is whether or not the Supreme
Court, in the exercise of its constitutionally mandated power of Judicial Review with
respect to recent initiatives of the legislature and the executive department, is exercising
undue interference. Is the Highest Tribunal, which is expected to be the protector of the
Constitution, itself guilty of violating fundamental tenets like the doctrine of separation of
powers? Time and again, this issue has been addressed by the Court, but it seems that
the present political situation calls for it to once again explain the legal basis of its action
lest it continually be accused of being a hindrance to the nation's thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987
Constitution, is vested with Judicial Power that "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 of abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." SECHIA
Furthermore, in Section 4 (2) thereof, it is vested with the power of judicial review which
is the power to declare a treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation unconstitutional. This
power also includes the duty to rule on the constitutionality of the application, or operation
of presidential decrees, proclamations, orders, instructions, ordinances, and other
regulations. These provisions, however, have been fertile grounds of conflict between the
Supreme Court, on one hand, and the two co-equal bodies of government, on the other.
Many times the Court has been accused of asserting superiority over the other
departments.
To answer this accusation, the words of Justice Laurel would be a good source of
enlightenment, to wit: "And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them." 107
Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon
a co-equal body but rather simply making sure that any act of government is done in
consonance with the authorities and rights allocated to it by the Constitution. And, if after
said review, the Court finds no constitutional violations of any sort, then, it has no more
authority of proscribing the actions under review. Otherwise, the Court will not be deterred
to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble intentions, all
geared towards the betterment of the nation and its people. But then again, it is important
to remember this ethical principle: "The end does not justify the means." No matter how
noble and worthy of admiration the purpose of an act, but if the means to be employed in
accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still
be allowed. 108 The Court cannot just turn a blind eye and simply let it pass. It will
continue to uphold the Constitution and its enshrined principles.
621
"The Constitution must ever remain supreme. All must bow to the mandate of this law.
Expediency must not be allowed to sap its strength nor greed for power debase its
rectitude." 109
Lest it be misunderstood, this is not the death knell for a truth commission as nobly
envisioned by the present administration. Perhaps a revision of the executive issuance
so as to include the earlier past administrations would allow it to pass the test of
reasonableness and not be an affront to the Constitution. Of all the branches of the
government, it is the judiciary which is the most interested in knowing the truth and so it
will not allow itself to be a hindrance or obstacle to its attainment. It must, however, be
emphasized that the search for the truth must be within constitutional bounds for "ours is
still a government of laws and not of men." 110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the
Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist from carrying
out the provisions of Executive Order No. 1.
SO ORDERED.
Velasco, Jr., Del Castillo, Abad and Villarama, Jr., JJ., concur.
Corona, C.J., see separate opinion (concurring).
Carpio, J., see dissenting opinion.
Carpio Morales, J., please see dissenting opinion.
Velasco Jr., J., C.J. Corona certifies that Justice Velasco left his concurring vote.
Nachura, J., see concurring and dissenting opinion.
Leonardo-De Castro, J., see separate concurring opinion.
Brion, J., see separate opinion (concurring).
Peralta, J., see separate concurring opinion.
Bersamin, J., see his separate opinion.
Abad, J., see separate dissenting opinion.
Perez, J., see separate opinion (concurring).
Sereno, J., see dissenting opinion.
||| (Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, 193036,
[December 7, 2010], 651 PHIL 374-773)
5. BOCEA VS. TEVES 661 SCRA 589 (2011)
EN BANC
[G.R. No. 181704. December 6, 2011.]
BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA), represented by its
National President (BOCEA National Executive Council) Mr. Romulo A. Pagulayan,
petitioner, vs. HON. MARGARITO B. TEVES, in his capacity as Secretary of the
622
Department of Finance, HON. NAPOLEON L. MORALES, in his capacity as

Commissioner of the Bureau of Customs, HON. LILIAN B. HEFTI, in her capacity as
Commissioner of the Bureau of Internal Revenue, respondents.
DECISION
Before this Court is a petition 1 for certiorari and prohibition with prayer for injunctive
relief/s under Rule 65 of the 1997 Rules of Civil Procedure, as amended, to declare
Republic Act (R.A.) No. 9335, 2 otherwise known as the Attrition Act of 2005, and its
Implementing Rules and Regulations 3 (IRR) unconstitutional, and the implementation
thereof be enjoined permanently.
The Facts
On January 25, 2005, former President Gloria Macapagal-Arroyo signed into law R.A. No.
9335 which took effect on February 11, 2005.
In Abakada Guro Party List v. Purisima 4 (Abakada), we said of R.A. No. 9335:
RA [No.] 9335 was enacted to optimize the revenue-generation capability and collection
of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law
intends to encourage BIR and BOC officials and employees to exceed their revenue
targets by providing a system of rewards and sanctions through the creation of a Rewards
and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board). It
covers all officials and employees of the BIR and the BOC with at least six months of
service, regardless of employment status.
The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue
targets for the year, as determined by the Development Budget and Coordinating
Committee (DBCC). Any incentive or reward is taken from the fund and allocated to the
BIR and the BOC in proportion to their contribution in the excess collection of the targeted
amount of tax revenue.
The Boards in the BIR and the BOC are composed of the Secretary of the Department of
Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and
Management (DBM) or his/her Undersecretary, the Director General of the National
Economic Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners, two
representatives from the rank-and-file employees and a representative from the officials
nominated by their recognized organization.
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation,
distribution and release of the Fund; (2) set criteria and procedures for removing from the
service officials and employees whose revenue collection falls short of the target; (3)
terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a
system for performance evaluation; (5) perform other functions, including the issuance of
rules and regulations and (6) submit an annual report to Congress. aCTcDH
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked
to promulgate and issue the implementing rules and regulations of RA [No.] 9335, to be
approved by a Joint Congressional Oversight Committee created for such purpose. 5
The Joint Congressional Oversight Committee approved the assailed IRR on May 22,
2006. Subsequently, the IRR was published on May 30, 2006 in two newspapers of
general circulation, the Philippine Star and the Manila Standard, and became effective
fifteen (15) days later. 6
Contending that the enactment and implementation of R.A. No. 9335 are tainted with
constitutional infirmities in violation of the fundamental rights of its members, petitioner
623
Bureau of Customs Employees Association (BOCEA), an association of rank-and-file

employees of the Bureau of Customs (BOC), duly registered with the Department of Labor
and Employment (DOLE) and the Civil Service Commission (CSC), and represented by
its National President, Mr. Romulo A. Pagulayan (Pagulayan), directly filed the present
petition before this Court against respondents Margarito B. Teves, in his capacity as
Secretary of the Department of Finance (DOF), Commissioner Napoleon L. Morales
(Commissioner Morales), in his capacity as BOC Commissioner, and Lilian B. Hefti, in
her capacity as Commissioner of the Bureau of Internal Revenue (BIR). In its petition,
BOCEA made the following averments:
Sometime in 2008, high-ranking officials of the BOC pursuant to the mandate of R.A. No.
9335 and its IRR, and in order to comply with the stringent deadlines thereof, started to
disseminate Collection District Performance Contracts 7 (Performance Contracts) for the
lower ranking officials and rank-and-file employees to sign. The Performance Contract
pertinently provided:
xxx xxx xxx
WHEREAS, pursuant to the provisions of Sec. 25 (b) of the Implementing Rules and
Regulations (IRR) of the Attrition Act of 2005, that provides for the setting of criteria and
procedures for removing from the service Officials and Employees whose revenue
collection fall short of the target in accordance with Section 7 of Republic Act 9335.
xxx xxx xxx
NOW, THEREFORE, for and in consideration of the foregoing premises, parties unto this
Agreement hereby agree and so agreed to perform the following:
xxx xxx xxx
2. The "Section 2, PA/PE" hereby accepts the allocated Revenue Collection Target and
further accepts/commits to meet the said target under the following conditions:
a.) That he/she will meet the allocated Revenue Collection Target and thereby undertakes
and binds himself/herself that in the event the revenue collection falls short of the target
with due consideration of all relevant factors affecting the level of collection as provided
in the rules and regulations promulgated under the Act and its IRR, he/she will voluntarily
submit to the provisions of Sec. 25 (b) of the IRR and Sec. 7 of the Act; and
b.) That he/she will cascade and/or allocate to respective Appraisers/Examiners or
Employees under his/her section the said Revenue Collection Target and require them to
execute a Performance Contract, and direct them to accept their individual target. The
Performance Contract executed by the respective Examiners/Appraisers/Employees
shall be submitted to the Office of the Commissioner through the LAIC on or before March
31, 2008.
xxx xxx xxx 8
BOCEA opined that the revenue target was impossible to meet due to the Government's
own policies on reduced tariff rates and tax breaks to big businesses, the occurrence of
natural calamities and because of other economic factors. BOCEA claimed that some
BOC employees were coerced and forced to sign the Performance Contract. The majority
of them, however, did not sign. In particular, officers of BOCEA were summoned and
required to sign the Performance Contracts but they also refused. To ease the brewing
tension, BOCEA claimed that its officers sent letters, and sought several dialogues with
BOC officials but the latter refused to heed them.
In addition, BOCEA alleged that Commissioner Morales exerted heavy pressure on the
District Collectors, Chiefs of Formal Entry Divisions, Principal Customs Appraisers and
Principal Customs Examiners of the BOC during command conferences to make them
624
sign their Performance Contracts. Likewise, BOC Deputy Commissioner Reynaldo Umali
(Deputy Commissioner Umali) individually spoke to said personnel to convince them to
sign said contracts. Said personnel were threatened that if they do not sign their
respective Performance Contracts, they would face possible reassignment, reshuffling,
or worse, be placed on floating status. Thus, all the District Collectors, except a certain
Atty. Carlos So of the Collection District III of the Ninoy Aquino International Airport
(NAIA), signed the Performance Contracts. ESCDHA
BOCEA further claimed that Pagulayan was constantly harassed and threatened with
lawsuits. Pagulayan approached Deputy Commissioner Umali to ask the BOC officials to
stop all forms of harassment, but the latter merely said that he would look into the matter.
On February 5, 2008, BOCEA through counsel wrote the Revenue Performance
Evaluation Board (Board) to desist from implementing R.A. No. 9335 and its IRR and from
requiring rank-and-file employees of the BOC and BIR to sign Performance Contracts. 9
In his letter-reply 10 dated February 12, 2008, Deputy Commissioner Umali denied having
coerced any BOC employee to sign a Performance Contract. He also defended the BOC,
invoking its mandate of merely implementing the law. Finally, Pagulayan and BOCEA's
counsel, on separate occasions, requested for a certified true copy of the Performance
Contract from Deputy Commissioner Umali but the latter failed to furnish them a copy. 11
This petition was filed directly with this Court on March 3, 2008. BOCEA asserted that in
view of the unconstitutionality of R.A. No. 9335 and its IRR, and their adverse effects on
the constitutional rights of BOC officials and employees, direct resort to this Court is
justified. BOCEA argued, among others, that its members and other BOC employees are
in great danger of losing their jobs should they fail to meet the required quota provided
under the law, in clear violation of their constitutional right to security of tenure, and at
their and their respective families' prejudice.
In their Comment, 12 respondents, through the Office of the Solicitor General (OSG),
countered that R.A. No. 9335 and its IRR do not violate the right to due process and right
to security of tenure of BIR and BOC employees. The OSG stressed that the guarantee
of security of tenure under the 1987 Constitution is not a guarantee of perpetual
employment. R.A. No. 9335 and its IRR provided a reasonable and valid ground for the
dismissal of an employee which is germane to the purpose of the law. Likewise, R.A. No.
9335 and its IRR provided that an employee may only be separated from the service upon
compliance with substantive and procedural due process. The OSG added that R.A. No.
9335 and its IRR must enjoy the presumption of constitutionality.
In its Reply, 13 BOCEA claimed that R.A. No. 9335 employs means that are unreasonable
to achieve its stated objectives; that the law is unduly oppressive of BIR and BOC
employees as it shifts the extreme burden upon their shoulders when the Government
itself has adopted measures that make collection difficult such as reduced tariff rates to
almost zero percent and tax exemption of big businesses; and that the law is
discriminatory of BIR and BOC employees. BOCEA manifested that only the high-ranking
officials of the BOC benefited largely from the reward system under R.A. No. 9335 despite
the fact that they were not the ones directly toiling to collect revenue. Moreover, despite
the BOCEA's numerous requests, 14 BOC continually refused to provide BOCEA the
Expenditure Plan on how such reward was distributed.
Since BOCEA was seeking similar reliefs as that of the petitioners in Abakada Guro Party
List v. Purisima, BOCEA filed a Motion to Consolidate 15 the present case with Abakada
on April 16, 2008. However, pending action on said motion, the Court rendered its
decision in Abakada on August 14, 2008. Thus, the consolidation of this case with
Abakada was rendered no longer possible. 16
In Abakada, this Court, through then Associate Justice, now Chief Justice Renato C.
Corona, declared Section 12 17 of R.A. No. 9335 creating a Joint Congressional
Oversight Committee to approve the IRR as unconstitutional and violative of the principle
of separation of powers. However, the constitutionality of the remaining provisions of R.A.
No. 9335 was upheld pursuant to Section 13 18 of R.A. No. 9335. The Court also held
that until the contrary is shown, the IRR of R.A. No. 9335 is presumed valid and effective
even without the approval of the Joint Congressional Oversight Committee. 19
625
Notwithstanding our ruling in Abakada, both parties complied with our Resolution 20
dated February 10, 2009, requiring them to submit their respective Memoranda.
The Issues
BOCEA raises the following issues:
I.
VIOLATE THE RIGHT TO DUE PROCESS OF THE COVERED BIR AND BOC
OFFICIALS AND EMPLOYEES[;]
II.
VIOLATE THE RIGHT OF BIR AND BOC OFFICIALS AND EMPLOYEES TO THE
EQUAL PROTECTION OF THE LAWS[;] AECDHS
III.
AND REGULATIONS VIOLATE THE RIGHT TO SECURITY OF TENURE OF BIR AND
BOC OFFICIALS AND EMPLOYEES AS ENSHRINED UNDER SECTION 2 (3),
ARTICLE IX (B) OF THE CONSTITUTION[;]
IV.
AND REGULATIONS ARE UNCONSTITUTIONAL AS THEY CONSTITUTE UNDUE
DELEGATION OF LEGISLATIVE POWERS TO THE REVENUE PERFORMANCE
EVALUATION BOARD IN VIOLATION OF THE PRINCIPLE OF SEPARATION OF
POWERS ENSHRINED IN THE CONSTITUTION[; AND]
V.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A BILL OF ATTAINDER AND
HENCE[,] UNCONSTITUTIONAL BECAUSE IT INFLICTS PUNISHMENT THROUGH
LEGISLATIVE FIAT UPON A PARTICULAR GROUP OR CLASS OF OFFICIALS AND
EMPLOYEES WITHOUT TRIAL. 21
BOCEA manifested that while waiting for the Court to give due course to its petition,
events unfolded showing the patent unconstitutionality of R.A. No. 9335. It narrated that
during the first year of the implementation of R.A. No. 9335, BOC employees exerted
commendable efforts to attain their revenue target of P196 billion which they surpassed
by as much as P2 billion for that year alone. However, this was attained only because oil
companies made advance tax payments to BOC. Moreover, BOC employees were given
their "reward" for surpassing said target only in 2008, the distribution of which they
described as unjust, unfair, dubious and fraudulent because only top officials of BOC got
the huge sum of reward while the employees, who did the hard task of collecting, received
a mere pittance of around P8,500.00. In the same manner, the Bonds Division of BOCNAIA collected 400+% of its designated target but the higher management gave out to
the employees a measly sum of P8,500.00 while the top level officials partook of millions
of the excess collections. BOCEA relies on a piece of information revealed by a
newspaper showing the list of BOC officials who apparently earned huge amounts of
money by way of reward. 22 It claims that the recipients thereof included lawyers, support
personnel and other employees, including a dentist, who performed no collection
626
functions at all. These alleged anomalous selection, distribution and allocation of rewards
was due to the failure of R.A. No. 9335 to set out clear guidelines. 23
In addition, BOCEA avers that the Board initiated the first few cases of attrition for the
Fiscal Year 2007 by subjecting five BOC officials from the Port of Manila to attrition
despite the fact that the Port of Manila substantially complied with the provisions of R.A.
No. 9335. It is thus submitted that the selection of these officials for attrition without proper
investigation was nothing less than arbitrary. Further, the legislative and executive
departments' promulgation of issuances and the Government's accession to regional
trade agreements have caused a significant diminution of the tariff rates, thus, decreasing
over-all collection. These unrealistic settings of revenue targets seriously affect BIR and
BOC employees tasked with the burden of collection, and worse, subjected them to
attrition. 24
BOCEA assails the constitutionality of R.A. No. 9335 and its IRR on the following grounds:
1. R.A. No. 9335 and its IRR violate the BIR and BOC employees' right to due process
because the termination of employees who had not attained their revenue targets for the
year is peremptory and done without any form of hearing to allow said employees to
ventilate their side. Moreover, R.A. No. 9335 and its IRR do not comply with the
requirements under CSC rules and regulations as the dismissal in this case is
immediately executory. Such immediately executory nature of the Board's decision
negates the remedies available to an employee as provided under the CSC rules.
2. R.A. No. 9335 and its IRR violate the BIR and BOC employees' right to equal protection
of the law because R.A. No. 9335 and its IRR unduly discriminates against BIR and BOC
employees as compared to employees of other revenue generating government agencies
like the Philippine Amusement and Gaming Corporation, Department of Transportation
and Communication, the Air Transportation Office, the Land Transportation Office, and
the Philippine Charity Sweepstakes Office, among others, which are not subject to
attrition.
3. R.A. No. 9335 and its IRR violate the BIR and BOC employees' right to security of
tenure because R.A. No. 9335 and its IRR effectively removed remedies provided in the
ordinary course of administrative procedure afforded to government employees. The law
likewise created another ground for dismissal, i.e., non-attainment of revenue collection
target, which is not provided under CSC rules and which is, by its nature, unpredictable
and therefore arbitrary and unreasonable. SDaHEc
4. R.A. No. 9335 and its IRR violate the 1987 Constitution because Congress granted to
the Revenue Performance Evaluation Board (Board) the unbridled discretion of
formulating the criteria for termination, the manner of allocating targets, the distribution of
rewards and the determination of relevant factors affecting the targets of collection, which
is tantamount to undue delegation of legislative power.
5. R.A. No. 9335 is a bill of attainder because it inflicts punishment upon a particular group
or class of officials and employees without trial. This is evident from the fact that the law
confers upon the Board the power to impose the penalty of removal upon employees who
do not meet their revenue targets; that the same is without the benefit of hearing; and that
the removal from service is immediately executory. Lastly, it disregards the presumption
of regularity in the performance of the official functions of a public officer. 25
On the other hand, respondents through the OSG stress that except for Section 12 of
R.A. No. 9335, R.A. No. 9335 and its IRR are constitutional, as per our ruling in Abakada.
Nevertheless, the OSG argues that the classification of BIR and BOC employees as
public officers under R.A. No. 9335 is based on a valid and substantial distinction since
the revenue generated by the BIR and BOC is essentially in the form of taxes, which is
the lifeblood of the State, while the revenue produced by other agencies is merely
incidental or secondary to their governmental functions; that in view of their mandate, and
for purposes of tax collection, the BIR and BOC are sui generis; that R.A. No. 9335
627
complies with the "completeness" and "sufficient standard" tests for the permissive
delegation of legislative power to the Board; that the Board exercises its delegated power
consistent with the policy laid down in the law, that is, to optimize the revenue generation
capability and collection of the BIR and the BOC; that parameters were set in order that
the Board may identify the officials and employees subject to attrition, and the proper
procedure for their removal in case they fail to meet the targets set in the Performance
Contract were provided; and that the rights of BIR and BOC employees to due process
of law and security of tenure are duly accorded by R.A. No. 9335. The OSG likewise
maintains that there was no encroachment of judicial power in the enactment of R.A. No.
9335 amounting to a bill of attainder since R.A. No. 9335 and its IRR merely defined the
offense and provided for the penalty that may be imposed. Finally, the OSG reiterates
that the separation from the service of any BIR or BOC employee under R.A. No. 9335
and its IRR shall be done only upon due consideration of all relevant factors affecting the
level of collection, subject to Civil Service laws, rules and regulations, and in compliance
with substantive and procedural due process. The OSG opines that the Performance
Contract, far from violating the BIR and BOC employees' right to due process, actually
serves as a notice of the revenue target they have to meet and the possible
consequences of failing to meet the same. More, there is nothing in the law which
prevents the aggrieved party from appealing the unfavorable decision of dismissal. 26
In essence, the issues for our resolution are:
1. Whether there is undue delegation of legislative power to the Board;
2. Whether R.A. No. 9335 and its IRR violate the rights of BOCEA's members to: (a) equal
protection of laws, (b) security of tenure and (c) due process; and
3. Whether R.A. No. 9335 is a bill of attainder.
Our Ruling
Prefatorily, we note that it is clear, and in fact uncontroverted, that BOCEA has locus
standi. BOCEA impugns the constitutionality of R.A. No. 9335 and its IRR because its
members, who are rank-and-file employees of the BOC, are actually covered by the law
and its IRR. BOCEA's members have a personal and substantial interest in the case,
such that they have sustained or will sustain, direct injury as a result of the enforcement
of R.A. No. 9335 and its IRR. 27
However, we find no merit in the petition and perforce dismiss the same.
It must be noted that this is not the first time the constitutionality of R.A. No. 9335 and its
IRR are being challenged. The Court already settled the majority of the same issues
raised by BOCEA in our decision in Abakada, which attained finality on September 17,
2008. As such, our ruling therein is worthy of reiteration in this case.
We resolve the first issue in the negative.
The principle of separation of powers ordains that each of the three great branches of
constitutionally allocated sphere. 28 Necessarily imbedded in this doctrine is the principle
of non-delegation of powers, as expressed in the Latin maxim potestas delegata non
delegari potest, which means "what has been delegated, cannot be delegated." This
doctrine is based on the ethical principle that such delegated power constitutes not only
a right but a duty to be performed by the delegate through the instrumentality of his own
judgment and not through the intervening mind of another. 29 However, this principle of
non-delegation of powers admits of numerous exceptions, 30 one of which is the
delegation of legislative power to various specialized administrative agencies like the
Board in this case. cDACST
The rationale for the aforementioned exception was clearly explained in our ruling in
Gerochi v. Department of Energy, 31 to wit:
In the face of the increasing complexity of modern life, delegation of legislative power to
various specialized administrative agencies is allowed as an exception to this principle.
Given the volume and variety of interactions in today's society, it is doubtful if the
legislature can promulgate laws that will deal adequately with and respond promptly to
628
the minutiae of everyday life. Hence, the need to delegate to administrative bodies the
principal agencies tasked to execute laws in their specialized fields the authority to
promulgate rules and regulations to implement a given statute and effectuate its policies.
All that is required for the valid exercise of this power of subordinate legislation is that the
regulation be germane to the objects and purposes of the law and that the regulation be
not in contradiction to, but in conformity with, the standards prescribed by the law. These
requirements are denominated as the completeness test and the sufficient standard test.
32
Thus, in Abakada, we held,
Two tests determine the validity of delegation of legislative power: (1) the completeness
test and (2) the sufficient standard test. A law is complete when it sets forth therein the
policy to be executed, carried out or implemented by the delegate. It lays down a sufficient
standard when it provides adequate guidelines or limitations in the law to map out the
boundaries of the delegate's authority and prevent the delegation from running riot. To be
sufficient, the standard must specify the limits of the delegate's authority, announce the
legislative policy and identify the conditions under which it is to be implemented.
RA [No.] 9335 adequately states the policy and standards to guide the President in fixing
revenue targets and the implementing agencies in carrying out the provisions of the law.
Section 2 spells out the policy of the law:
"SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenuegeneration capability and collection of the Bureau of Internal Revenue (BIR) and the
Bureau of Customs (BOC) by providing for a system of rewards and sanctions through
the creation of a Rewards and Incentives Fund and a Revenue Performance Evaluation
Board in the above agencies for the purpose of encouraging their officials and employees
to exceed their revenue targets."
Section 4 "canalized within banks that keep it from overflowing" the delegated power to
the President to fix revenue targets:
"SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter
referred to as the Fund, is hereby created, to be sourced from the collection of the BIR
and the BOC in excess of their respective revenue targets of the year, as determined by
the Development Budget and Coordinating Committee (DBCC), in the following
percentages:
Excess of Collection
Percent (%) of the Excess

[Over] the Revenue
Collection to Accrue to the
Targets
Fund
30% or below
15%
More than 30%
15% of the first 30% plus

20% of the remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the
year when the revenue collection target was exceeded and shall be released on the same
fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the
BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and
Sources of Financing (BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies' revenue targets as
allocated among its revenue districts in the case of the BIR, and the collection districts in
the case of the BOC.
xxx xxx xxx"
629
Revenue targets are based on the original estimated revenue collection expected
respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and
stated in the BESF submitted by the President to Congress. Thus, the determination of
revenue targets does not rest solely on the President as it also undergoes the scrutiny of
the DBCC.
On the other hand, Section 7 specifies the limits of the Board's authority and identifies the
conditions under which officials and employees whose revenue collection falls short of
the target by at least 7.5% may be removed from the service:
"SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the
following powers and functions: DACIHc
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials and employees
whose revenue collection falls short of the target by at least seven and a half percent
(7.5%), with due consideration of all relevant factors affecting the level of collection as
provided in the rules and regulations promulgated under this Act, subject to civil service
laws, rules and regulations and compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years
in operation, and has no historical record of collection performance that can be used as
basis for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in the middle
of the period under consideration unless the transfer was due to nonperformance of
revenue targets or potential nonperformance of revenue targets: Provided, however, That
when the district or area of responsibility covered by revenue or customs officials or
employees has suffered from economic difficulties brought about by natural calamities or
force majeure or economic causes as may be determined by the Board, termination shall
be considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding
paragraph: Provided, That such decision shall be immediately executory: Provided,
further, That the application of the criteria for the separation of an official or employee
from service under this Act shall be without prejudice to the application of other relevant
laws on accountability of public officers and employees, such as the Code of Conduct
and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt
Practices Act;
xxx xxx xxx"
At any rate, this Court has recognized the following as sufficient standards: "public
interest", "justice and equity", "public convenience and welfare" and "simplicity, economy
and welfare". In this case, the declared policy of optimization of the revenue-generation
capability and collection of the BIR and the BOC is infused with public interest. 33
We could not but deduce that the completeness test and the sufficient standard test were
fully satisfied by R.A. No. 9335, as evident from the aforementioned Sections 2, 4 and 7
thereof. Moreover, Section 5 34 of R.A. No. 9335 also provides for the incentives due to
District Collection Offices. While it is apparent that the last paragraph of Section 5
provides that "[t]he allocation, distribution and release of the district reward shall likewise
be prescribed by the rules and regulations of the Revenue Performance and Evaluation
Board," Section 7 (a) 35 of R.A. No. 9335 clearly mandates and sets the parameters for
630
the Board by providing that such rules and guidelines for the allocation, distribution and
release of the fund shall be in accordance with Sections 4 and 5 of R.A. No. 9335. In sum,
the Court finds that R.A. No. 9335, read and appreciated in its entirety, is complete in all
its essential terms and conditions, and that it contains sufficient standards as to negate
BOCEA's supposition of undue delegation of legislative power to the Board.
Similarly, we resolve the second issue in the negative.
Equal protection simply provides that all persons or things similarly situated should be
treated in a similar manner, both as to rights conferred and responsibilities imposed. The
purpose of the equal protection clause is to secure every person within a state's
jurisdiction against intentional and arbitrary discrimination, whether occasioned by the
express terms of a statute or by its improper execution through the state's duly constituted
authorities. In other words, the concept of equal justice under the law requires the state
to govern impartially, and it may not draw distinctions between individuals solely on
differences that are irrelevant to a legitimate governmental objective. 36
Thus, on the issue on equal protection of the laws, we held in Abakada:
The equal protection clause recognizes a valid classification, that is, a classification that
has a reasonable foundation or rational basis and not arbitrary. With respect to RA [No.]
9335, its expressed public policy is the optimization of the revenue-generation capability
and collection of the BIR and the BOC. Since the subject of the law is the revenuegeneration capability and collection of the BIR and the BOC, the incentives and/or
sanctions provided in the law should logically pertain to the said agencies. Moreover, the
law concerns only the BIR and the BOC because they have the common distinct primary
function of generating revenues for the national government through the collection of
taxes, customs duties, fees and charges.
The BIR performs the following functions: CDaSAE
"Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which
shall be headed by and subject to the supervision and control of the Commissioner of
Internal Revenue, who shall be appointed by the President upon the recommendation of
the Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and
duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
xxx xxx xxx"
On the other hand, the BOC has the following functions:
"Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and
subject to the management and control of the Commissioner of Customs, who shall be
appointed by the President upon the recommendation of the Secretary [of the DOF] and
hereinafter referred to as Commissioner, shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
631
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all
ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels
and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its
jurisdiction;
(8) Exercise supervision and control over its constituent units;
xxx xxx xxx"
Both the BIR and the BOC are bureaus under the DOF. They principally perform the
special function of being the instrumentalities through which the State exercises one of
its great inherent functions taxation. Indubitably, such substantial distinction is
germane and intimately related to the purpose of the law. Hence, the classification and
treatment accorded to the BIR and the BOC under RA [No.] 9335 fully satisfy the demands
of equal protection. 37
As it was imperatively correlated to the issue on equal protection, the issues on the
security of tenure of affected BIR and BOC officials and employees and their entitlement
to due process were also settled in Abakada:
Clearly, RA [No.] 9335 in no way violates the security of tenure of officials and employees
of the BIR and the BOC. The guarantee of security of tenure only means that an employee
cannot be dismissed from the service for causes other than those provided by law and
only after due process is accorded the employee. In the case of RA [No.] 9335, it lays
down a reasonable yardstick for removal (when the revenue collection falls short of the
target by at least 7.5%) with due consideration of all relevant factors affecting the level of
collection. This standard is analogous to inefficiency and incompetence in the
performance of official duties, a ground for disciplinary action under civil service laws. The
action for removal is also subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process. 38 HCTAEc
In addition, the essence of due process is simply an opportunity to be heard, or as applied
to administrative proceedings, a fair and reasonable opportunity to explain one's side. 39
BOCEA's apprehension of deprivation of due process finds its answer in Section 7 (b)
and (c) of R.A. No. 9335. 40 The concerned BIR or BOC official or employee is not simply
given a target revenue collection and capriciously left without any quarter. R.A. No. 9335
and its IRR clearly give due consideration to all relevant factors 41 that may affect the
level of collection. In the same manner, exemptions 42 were set, contravening BOCEA's
claim that its members may be removed for unattained target collection even due to
causes which are beyond their control. Moreover, an employee's right to be heard is not
at all prevented and his right to appeal is not deprived of him. 43 In fine, a BIR or BOC
official or employee in this case cannot be arbitrarily removed from the service without
according him his constitutional right to due process. No less than R.A. No. 9335 in
accordance with the 1987 Constitution guarantees this.
We have spoken, and these issues were finally laid to rest. Now, the Court proceeds to
resolve the last, but new issue raised by BOCEA, that is, whether R.A. No. 9335 is a bill
of attainder proscribed under Section 22, 44 Article III of the 1987 Constitution.
On this score, we hold that R.A. No. 9335 is not a bill of attainder. A bill of attainder is a
legislative act which inflicts punishment on individuals or members of a particular group
632
without a judicial trial. Essential to a bill of attainder are a specification of certain

individuals or a group of individuals, the imposition of a punishment, penal or otherwise,
and the lack of judicial trial. 45
In his Concurring Opinion in Tuason v. Register of Deeds, Caloocan City, 46 Justice
Florentino P. Feliciano traces the roots of a Bill of Attainder, to wit:
Bills of attainder are an ancient instrument of tyranny. In England a few centuries back,
Parliament would at times enact bills or statutes which declared certain persons attainted
and their blood corrupted so that it lost all heritable quality (Ex Parte Garland, 4 Wall. 333,
18 L.Ed. 366 [1867]). In more modern terms, a bill of attainder is essentially a usurpation
of judicial power by a legislative body. It envisages and effects the imposition of a penalty
the deprivation of life or liberty or property not by the ordinary processes of judicial
trial, but by legislative fiat. While cast in the form of special legislation, a bill of attainder
(or bill of pains and penalties, if it prescribed a penalty other than death) is in intent and
effect a penal judgment visited upon an identified person or group of persons (and not
upon the general community) without a prior charge or demand, without notice and
hearing, without an opportunity to defend, without any of the civilized forms and
safeguards of the judicial process as we know it (People v. Ferrer, 48 SCRA 382 [1972];
Cummings and Missouri, 4 Wall. 277, 18 L. Ed. 356 [1867]; U.S. v. Lovett, 328, U.S. 303,
90 L.Ed. 1252 [1945]; U.S. v. Brown, 381 U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such is the
archetypal bill of attainder wielded as a means of legislative oppression. . . . 47
R.A. No. 9335 does not possess the elements of a bill of attainder. It does not seek to
inflict punishment without a judicial trial. R.A. No. 9335 merely lays down the grounds for
the termination of a BIR or BOC official or employee and provides for the consequences
thereof. The democratic processes are still followed and the constitutional rights of the
concerned employee are amply protected.
A final note.
We find that BOCEA's petition is replete with allegations of defects and anomalies in
allocation, distribution and receipt of rewards. While BOCEA intimates that it intends to
curb graft and corruption in the BOC in particular and in the government in general which
is nothing but noble, these intentions do not actually pertain to the constitutionality of R.A.
No. 9335 and its IRR, but rather in the faithful implementation thereof. R.A. No. 9335 itself
does not tolerate these pernicious acts of graft and corruption. 48 As the Court is not a
trier of facts, the investigation on the veracity of, and the proper action on these anomalies
are in the hands of the Executive branch. Correlatively, the wisdom for the enactment of
this law remains within the domain of the Legislative branch. We merely interpret the law
as it is. The Court has no discretion to give statutes a meaning detached from the manifest
intendment and language thereof. 49 Just like any other law, R.A. No. 9335 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. 50 We have so declared in Abakada, and we now reiterate that R.A.
No. 9335 and its IRR are constitutional.
WHEREFORE, the present petition for certiorari and prohibition with prayer for injunctive
relief/s is DISMISSED.
No costs. cCESaH
SO ORDERED.
Corona, C.J., Carpio, Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad,
Perez, Mendoza, Sereno, Reyes and Perlas-Bernabe, JJ., concur.
Velasco, Jr., J., is on official leave.
||| (Bureau of Customs Employees Association v. Teves, G.R. No. 181704, [December 6,
2011], 677 PHIL 636-671)
6. DEL CASTILLO VS. PEOPLE 664 SCRA 450 (2012)
633
THIRD DIVISION
[G.R. No. 185128. January 30, 2012.]
[Formerly UDK No. 13980]
RUBEN DEL CASTILLO @ BOY CASTILLO, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
PERALTA, J p:
For this Court's consideration is the Petition for Review 1 on Certiorari under Rule 45 of
Ruben del Castillo assailing the Decision 2 dated July 31, 2006 and Resolution 3 dated
December 13, 2007 of the Court of Appeals (CA) in CA-G.R. CR No. 27819, which
affirmed the Decision 4 dated March 14, 2003 of the Regional Trial Court (RTC), Branch
12, Cebu, in Criminal Case No. CBU-46291, finding petitioner guilty beyond reasonable
doubt of violation of Section 16, Article III of Republic Act (R.A.) 6425.
The facts, as culled from the records, are the following:
Pursuant to a confidential information that petitioner was engaged in selling shabu, police
officers headed by SPO3 Bienvenido Masnayon, after conducting surveillance and testbuy operation at the house of petitioner, secured a search warrant from the RTC and
around 3 o'clock in the afternoon of September 13, 1997, the same police operatives went
to Gil Tudtud St., Mabolo, Cebu City to serve the search warrant to petitioner.
Upon arrival, somebody shouted "raid," which prompted them to immediately disembark
from the jeep they were riding and went directly to petitioner's house and cordoned it. The
structure of the petitioner's residence is a two-storey house and the petitioner was staying
in the second floor. When they went upstairs, they met petitioner's wife and informed her
that they will implement the search warrant. But before they can search the area, SPO3
Masnayon claimed that he saw petitioner run towards a small structure, a nipa hut, in
front of his house. Masnayon chased him but to no avail, because he and his men were
not familiar with the entrances and exits of the place.
They all went back to the residence of the petitioner and closely guarded the place where
the subject ran for cover. SPO3 Masnayon requested his men to get a barangay tanod
and a few minutes thereafter, his men returned with two barangay tanods. TIaCAc
In the presence of the barangay tanod, Nelson Gonzalado, and the elder sister of
petitioner named Dolly del Castillo, searched the house of petitioner including the nipa
hut where the petitioner allegedly ran for cover. His men who searched the residence of
the petitioner found nothing, but one of the barangay tanods was able to confiscate from
the nipa hut several articles, including four (4) plastic packs containing white crystalline
substance. Consequently, the articles that were confiscated were sent to the PNP Crime
Laboratory for examination. The contents of the four (4) heat-sealed transparent plastic
packs were subjected to laboratory examination, the result of which proved positive for
the presence of methamphetamine hydrochloride, or shabu.
Thus, an Information was filed before the RTC against petitioner, charging him with
violation of Section 16, Article III of R.A. 6425, as amended. The Information 5 reads:
That on or about the 13th day of September 1997, at about 3:00 p.m. in the City of Cebu,
Philippines and within the jurisdiction of this Honorable Court, the said accused, with
deliberate intent, did then and there have in his possession and control four (4) packs of
white crystalline powder, having a total weight of 0.31 gram, locally known as "shabu," all
containing methamphetamine hydrochloride, a regulated drug, without license or
prescription from any competent authority.
CONTRARY TO LAW. 6
634
During arraignment, petitioner, with the assistance of his counsel, pleaded not guilty. 7
Subsequently, trial on the merits ensued.
To prove the earlier mentioned incident, the prosecution presented the testimonies of
SPO3 Bienvenido Masnayon, PO2 Milo Arriola, and Forensic Analyst, Police Inspector
Mutchit Salinas.
The defense, on the other hand, presented the testimonies of petitioner, Jesusa del
Castillo, Dalisay del Castillo and Herbert Aclan, which can be summarized as follows:
On September 13, 1997, around 3 o'clock in the afternoon, petitioner was installing the
electrical wirings and airconditioning units of the Four Seasons Canteen and Beauty
Parlor at Wacky Bldg., Cabancalan, Cebu. He was able to finish his job around 6 o'clock
in the evening, but he was engaged by the owner of the establishment in a conversation.
He was able to go home around 8:30-9 o'clock in the evening. It was then that he learned
from his wife that police operatives searched his house and found nothing. According to
him, the small structure, 20 meters away from his house where they found the confiscated
items, was owned by his older brother and was used as a storage place by his father.
TAEDcS
After trial, the RTC found petitioner guilty beyond reasonable of the charge against him
in the Information. The dispositive portion of the Decision reads:
WHEREFORE, premises considered, this Court finds the accused Ruben del Castillo
"alyas Boy Castillo," GUILTY of violating Section 16, Article III, Republic Act No. 6425, as
amended. There being no mitigating nor aggravating circumstances proven before this
Court, and applying the Indeterminate Sentence Law, he is sentenced to suffer the
penalty of Six (6) Months and One (1) Day as Minimum and Four (4) Years and Two (2)
Months as Maximum of Prision Correccional.
The four (4) small plastic packets of white crystalline substance having a total weight of
0.31 gram, positive for the presence of methamphetamine hydrochloride, are ordered
confiscated and shall be destroyed in accordance with the law.
SO ORDERED. 8
Aggrieved, petitioner appealed his case with the CA, but the latter affirmed the decision
of the RTC, thus:
WHEREFORE, the challenged Decision is AFFIRMED in toto and the appeal is
DISMISSED, with costs against accused-appellant.
SO ORDERED. 9
After the motion for reconsideration of petitioner was denied by the CA, petitioner filed
with this Court the present petition for certiorari under Rule 45 of the Rules of Court with
the following arguments raised:
1. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE PROVISIONS OF
THE CONSTITUTION, THE RULES OF COURT AND ESTABLISHED
JURISPRUDENCE VIS-A-VIS VALIDITY OF SEARCH WARRANT NO. 570-9-1197-24;
2. THE COURT OF APPEALS ERRED IN RULING THAT THE FOUR (4) PACKS OF
WHITE CRYSTALLINE POWDER ALLEGEDLY FOUND ON THE FLOOR OF THE NIPA
HUT OR STRUCTURE ARE ADMISSIBLE IN EVIDENCE AGAINST THE PETITIONER,
NOT ONLY BECAUSE THE SAID COURT SIMPLY PRESUMED THAT IT WAS USED
BY THE PETITIONER OR THAT THE PETITIONER RAN TO IT FOR COVER WHEN
THE SEARCHING TEAM ARRIVED AT HIS RESIDENCE, BUT ALSO, PRESUMING
THAT THE SAID NIPA HUT OR STRUCTURE WAS INDEED USED BY THE
PETITIONER AND THE FOUR (4) PACKS OF WHITE CRYSTALLINE POWDER WERE
FOUND THEREAT. THE SUBJECT FOUR (4) PACKS OF WHITE CRYSTALLINE
POWDER ARE FRUITS OF THE POISONOUS TREE; and ECaSIT
635
3. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE ELEMENT OF

"POSSESSION" AS AGAINST THE PETITIONER, AS IT WAS IN VIOLATION OF THE
ESTABLISHED JURISPRUDENCE ON THE MATTER. HAD THE SAID COURT
PROPERLY APPLIED THE ELEMENT IN QUESTION, IT COULD HAVE BEEN
ASSAYED THAT THE SAME HAD NOT BEEN PROVEN. 10
The Office of the Solicitor General (OSG), in its Comment dated February 10, 2009,
enumerated the following counter-arguments:
I
SEARCH WARRANT No. 570-9-11-97-24 issued by Executive Judge Priscilla S. Agana
of Branch 24, Regional Trial Court of Cebu City is valid.
II
The four (4) packs of shabu seized inside the shop of petitioner are admissible in evidence
against him.
III
The Court of Appeals did not err in finding him guilty of illegal possession of prohibited
drugs. 11
Petitioner insists that there was no probable cause to issue the search warrant,
considering that SPO1 Reynaldo Matillano, the police officer who applied for it, had no
personal knowledge of the alleged illegal sale of drugs during a test-buy operation
conducted prior to the application of the same search warrant. The OSG, however,
maintains that the petitioner, aside from failing to file the necessary motion to quash the
search warrant pursuant to Section 14, Rule 127 of the Revised Rules on Criminal
Procedure, did not introduce clear and convincing evidence to show that Masnayon was
conscious of the falsity of his assertion or representation.
Anent the second argument, petitioner asserts that the nipa hut located about 20 meters
away from his house is no longer within the "permissible area" that may be searched by
the police officers due to the distance and that the search warrant did not include the
same nipa hut as one of the places to be searched. The OSG, on the other hand, argues
that the constitutional guaranty against unreasonable searches and seizure is applicable
only against government authorities and not to private individuals such as the barangay
tanod who found the folded paper containing packs of shabu inside the nipa hut. EICDSA
As to the third argument raised, petitioner claims that the CA erred in finding him guilty
beyond reasonable doubt of illegal possession of prohibited drugs, because he could not
be presumed to be in possession of the same just because they were found inside the
nipa hut. Nevertheless, the OSG dismissed the argument of the petitioner, stating that,
when prohibited and regulated drugs are found in a house or other building belonging to
and occupied by a particular person, the presumption arises that such person is in
possession of such drugs in violation of law, and the fact of finding the same is sufficient
to convict.
This Court finds no merit on the first argument of petitioner.
The requisites for the issuance of a search warrant are: (1) probable cause is present; (2)
such probable cause must be determined personally by the judge; (3) the judge must
examine, in writing and under oath or affirmation, the complainant and the witnesses he
or she may produce; (4) the applicant and the witnesses testify on the facts personally
known to them; and (5) the warrant specifically describes the place to be searched and
the things to be seized. 12 According to petitioner, there was no probable cause. Probable
cause for a search warrant is defined as such facts and circumstances which would lead
a reasonably discreet and prudent man to believe that an offense has been committed
and that the objects sought in connection with the offense are in the place sought to be
searched. 13 A finding of probable cause needs only to rest on evidence showing that,
636
more likely than not, a crime has been committed and that it was committed by the
accused. Probable cause demands more than bare suspicion; it requires less than
evidence which would justify conviction. 14 The judge, in determining probable cause, is
to consider the totality of the circumstances made known to him and not by a fixed and
rigid formula, 15 and must employ a flexible, totality of the circumstances standard. 16
The existence depends to a large degree upon the finding or opinion of the judge
conducting the examination. This Court, therefore, is in no position to disturb the factual
findings of the judge which led to the issuance of the search warrant. A magistrate's
determination of probable cause for the issuance of a search warrant is paid great
deference by a reviewing court, as long as there was substantial basis for that
determination. 17 Substantial basis means that the questions of the examining judge
brought out such facts and circumstances as would lead a reasonably discreet and
prudent man to believe that an offense has been committed, and the objects in connection
with the offense sought to be seized are in the place sought to be searched. 18 A review
of the records shows that in the present case, a substantial basis exists.
With regard to the second argument of petitioner, it must be remembered that the warrant
issued must particularly describe the place to be searched and persons or things to be
seized in order for it to be valid. A designation or description that points out the place to
be searched to the exclusion of all others, and on inquiry unerringly leads the peace
officers to it, satisfies the constitutional requirement of definiteness. 19 In the present
case, Search Warrant No. 570-9-1197-24 20 specifically designates or describes the
residence of the petitioner as the place to be searched. Incidentally, the items were seized
by a barangay tanod in a nipa hut, 20 meters away from the residence of the petitioner.
The confiscated items, having been found in a place other than the one described in the
search warrant, can be considered as fruits of an invalid warrantless search, the
presentation of which as an evidence is a violation of petitioner's constitutional guaranty
against unreasonable searches and seizure. The OSG argues that, assuming that the
items seized were found in another place not designated in the search warrant, the same
items should still be admissible as evidence because the one who discovered them was
a barangay tanod who is a private individual, the constitutional guaranty against
unreasonable searches and seizure being applicable only against government
authorities. The contention is devoid of merit.
It was testified to during trial by the police officers who effected the search warrant that
they asked the assistance of the barangay tanods, thus, in the testimony of SPO3
Masnayon: HCTAEc
Fiscal Centino:
Q For how long did the chase take place?
A Just a very few moments.
Q After that, what did you [do] when you were not able to reach him?
A I watched his shop and then I requested my men to get a barangay tanod.
Q Were you able to get a barangay tanod?
A Yes.
Q Can you tell us what is the name of the barangay tanod?
A Nelson Gonzalado.
Q For point of clarification, how many barangay tanod [did] your driver get? SICDAa
A Two.
637
Q What happened after that?

A We searched the house, but we found negative.
Q Who proceeded to the second floor of the house?
A SPO1 Cirilo Pogoso and Milo Areola went upstairs and found nothing.
Q What about you, where were you?
A I [was] watching his shop and I was with Matillano.
Q What about the barangay tanod?
A Together with Milo and Pogoso.
Q When the search at the second floor of the house yielded negative what did you do?
A They went downstairs because I was suspicious of his shop because he ran from his
shop, so we searched his shop.
Q Who were with you when you searched the shop?
A The barangay tanod Nilo Gonzalado, the elder sister of Ruben del Castillo named Dolly
del Castillo.
Q You mean to say, that when (sic) SPO1 Reynaldo Matillano, Barangay Tanod Nilo
Gonzalado and the elder sister of Ruben del Castillo were together in the shop?
A Yes.
Q What happened at the shop?
A One of the barangay tanods was able to pick up white folded paper.
Q What [were] the contents of that white folded paper?
A A plastic pack containing white crystalline. DICcTa
Q Was that the only item?
A There are others like the foil, scissor.
Q Were you present when those persons found those tin foil and others inside the electric
shop?
A Yes. 21
The fact that no items were seized in the residence of petitioner and that the items that
were actually seized were found in another structure by a barangay tanod, was
corroborated by PO2 Arriola, thus:
FISCAL:
Q So, upon arriving at the house of Ruben del Castillo alias Boy, can you still recall what
took place?
A We cordoned the area.
638
Q And after you cordoned the area, did anything happen?

A We waited for the barangay tanod.
Q And did the barangay tanod eventually appear?
A Yes. And then we started our search in the presence of Ruben del Castillo's wife.
Q What is the name of the wife of Ruben del Castillo?
A I cannot recall her name, but if I see her I can recall [her] face.
Q What about Ruben del Castillo, was she around when [you] conducted the search?
A No. Ruben was not in the house. But our team leader, team mate Bienvenido Masnayon
saw that Ruben ran away from his adjacent electronic shop near his house, in front of his
house.
Q Did you find anything during the search in the house of Ruben del Castillo?
A After our search in the house, we did not see anything. The house was clean. IHaECA
Q What did you do afterwards, if any?
A We left (sic) out of the house and proceeded to his electronic shop.
Q Do you know the reason why you proceeded to his electronic shop?
A Yes. Because our team leader Bienvenido Masnayon saw that (sic) Ruben run from
that store and furthermore the door was open.
Q How far is the electronic shop from the house of Ruben del Castillo?
A More or less, 5 to 6 meters in front of his house.
xxx xxx xxx
Q So, who entered inside the electronic shop?
A The one who first entered the electronic shop is our team leader Bienvenido Masnayon.
Q You mentioned that Masnayon entered first. Do you mean to say that there were other
persons or other person that followed after Masnayon?
A Then we followed suit.
Q All of your police officers and the barangay tanod followed suit?
A I led Otadoy and the barangay tanod.
Q What about you?
A I also followed suit.
Q And did anything happen inside the shop of Ruben del Castillo?
639
A It was the barangay tanod who saw the folded paper and I saw him open the folded
paper which contained four shabu deck.
Q How far were you when you saw the folded paper and the tanod open the folded paper?
cHSIAC
A We were side by side because the shop was very small. 22
SPO1 Pogoso also testified on the same matter, thus:
FISCAL CENTINO:
Q And where did you conduct the search, Mr. Witness?
A At his residence, the two-storey house.
Q Among the three policemen, who were with you in conducting the search at the
residence of the accused?
A I, Bienvenido Masnayon.
Q And what transpired after you searched the house of Ruben del Castillo?
A Negative, no shabu.
Q And what happened afterwards, if any?
A We went downstairs and proceeded to the small house.
Q Can you please describe to this Honorable Court, what was that small house which you
proceeded to?
A It is a nipa hut.
Q And more or less, how far or near was it from the house of Ruben del Castillo?
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that nipa hut supposed to be?
A That was the electronic shop of Ruben del Castillo.
Q And what happened when your team proceeded to the nipa hut?
A I was just outside the nipa hut.
Q And who among the team went inside? CcTIDH
A PO2 Milo Areola and the Barangay Tanod. 23
Having been established that the assistance of the barangay tanods was sought by the
police authorities who effected the searched warrant, the same barangay tanods
therefore acted as agents of persons in authority. Article 152 of the Revised Penal Code
defines persons in authority and agents of persons in authority as:
. . . any person directly vested with jurisdiction, whether as an individual or as a member
of some court or governmental corporation, board or commission, shall be deemed a
person in authority. A barangay captain and a barangay chairman shall also be deemed
a person in authority.
640
A person who, by direct provision of law or by election or by appointment by competent

authority, is charged with the maintenance of public order and the protection and security
of life and property, such as barrio councilman, barrio policeman and barangay leader,
and any person who comes to the aid of persons in authority, shall be deemed an agent
of a person in authority.
The Local Government Code also contains a provision which describes the function of a
barangay tanod as an agent of persons in authority. Section 388 of the Local Government
Code reads:
SEC. 388. Persons in Authority. For purposes of the Revised Penal Code, the punong
barangay, sangguniang barangay members, and members of the lupong tagapamayapa
in each barangay shall be deemed as persons in authority in their jurisdictions, while other
barangay officials and members who may be designated by law or ordinance and charged
with the maintenance of public order, protection and security of life and property, or the
maintenance of a desirable and balanced environment, and any barangay member who
comes to the aid of persons in authority, shall be deemed agents of persons in authority.
By virtue of the above provisions, the police officers, as well as the barangay tanods were
acting as agents of a person in authority during the conduct of the search. Thus, the
search conducted was unreasonable and the confiscated items are inadmissible in
evidence. Assuming ex gratia argumenti that the barangay tanod who found the
confiscated items is considered a private individual, thus, making the same items
admissible in evidence, petitioner's third argument that the prosecution failed to establish
constructive possession of the regulated drugs seized, would still be meritorious. AaHTIE
Appellate courts will generally not disturb the factual findings of the trial court since the
latter has the unique opportunity to weigh conflicting testimonies, having heard the
witnesses themselves and observed their deportment and manner of testifying, 24 unless
attended with arbitrariness or plain disregard of pertinent facts or circumstances, the
factual findings are accorded the highest degree of respect on appeal 25 as in the present
case.
It must be put into emphasis that this present case is about the violation of Section 16 of
R.A. 6425. In every prosecution for the illegal possession of shabu, the following essential
elements must be established: (a) the accused is found in possession of a regulated drug;
(b) the person is not authorized by law or by duly constituted authorities; and (c) the
accused has knowledge that the said drug is a regulated drug. 26
In People v. Tira, 27 this Court explained the concept of possession of regulated drugs,
to wit:
This crime is mala prohibita, and, as such, criminal intent is not an essential element.
However, the prosecution must prove that the accused had the intent to possess (animus
posidendi) the drugs. Possession, under the law, includes not only actual possession, but
also constructive possession. Actual possession exists when the drug is in the immediate
physical possession or control of the accused. On the other hand, constructive
possession exists when the drug is under the dominion and control of the accused or
when he has the right to exercise dominion and control over the place where it is found.
Exclusive possession or control is not necessary. The accused cannot avoid conviction if
his right to exercise control and dominion over the place where the contraband is located,
is shared with another. 28
While it is not necessary that the property to be searched or seized should be owned by
the person against whom the search warrant is issued, there must be sufficient showing
that the property is under appellant's control or possession. 29 The CA, in its Decision,
referred to the possession of regulated drugs by the petitioner as a constructive one.
Constructive possession exists when the drug is under the dominion and control of the
accused or when he has the right to exercise dominion and control over the place where
it is found. 30 The records are void of any evidence to show that petitioner owns the nipa
hut in question nor was it established that he used the said structure as a shop. The RTC,
641
as well as the CA, merely presumed that petitioner used the said structure due to the
presence of electrical materials, the petitioner being an electrician by profession. The CA,
in its Decision, noted a resolution by the investigating prosecutor, thus:
. . . As admitted by respondent's wife, her husband is an electrician by occupation. As
such, conclusion could be arrived at that the structure, which housed the electrical
equipments is actually used by the respondent. Being the case, he has control of the
things found in said structure. 31
In addition, the testimonies of the witnesses for the prosecution do not also provide proof
as to the ownership of the structure where the seized articles were found. During their
direct testimonies, they just said, without stating their basis, that the same structure was
the shop of petitioner. 32 During the direct testimony of SPO1 Pogoso, he even outrightly
concluded that the electrical shop/nipa hut was owned by petitioner, thus: HAaDTI
FISCAL CENTINO:
Q Can you please describe to this Honorable Court, what was that small house which you
proceeded to?
A It is a nipa hut.
Q And more or less, how far or near was it from the house of Ruben del Castillo?
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that nipa hut supposed to be?
A That was the electronic shop of Ruben del Castillo.
Q And what happened when your team proceeded to the nipa hut?
A I was just outside the nipa hut. 33
However, during cross-examination, SPO3 Masnayon admitted that there was an
electrical shop but denied what he said in his earlier testimony that it was owned by
petitioner, thus:
ATTY. DAYANDAYAN:
Q You testified that Ruben del Castillo has an electrical shop, is that correct?
A He came out of an electrical shop. I did not say that he owns the shop.
Q Now, this shop is within a structure?
A Yes.
Q How big is the structure?
A It is quite a big structure, because at the other side is a mahjong den and at the other
side is a structure rented by a couple. 34
The prosecution must prove that the petitioner had knowledge of the existence and
presence of the drugs in the place under his control and dominion and the character of
the drugs. 35 With the prosecution's failure to prove that the nipa hut was under
petitioner's control and dominion, there casts a reasonable doubt as to his guilt. In
considering a criminal case, it is critical to start with the law's own starting perspective on
the status of the accused in all criminal prosecutions, he is presumed innocent of the
charge laid unless the contrary is proven beyond reasonable doubt. 36 Proof beyond
642
reasonable doubt, or that quantum of proof sufficient to produce a moral certainty that
would convince and satisfy the conscience of those who act in judgment, is indispensable
to overcome the constitutional presumption of innocence. 37
WHEREFORE, the Decision dated July 31, 2006 of the Court of Appeals in CA-G.R. No.
27819, which affirmed the Decision dated March 14, 2003 of the Regional Trial Court,
Branch 12, Cebu, in Criminal Case No. CBU-46291 is hereby REVERSED and SET
ASIDE. Petitioner Ruben del Castillo is ACQUITTED on reasonable doubt. CEDHTa
SO ORDERED.
Velasco, Jr., Mendoza, Reyes * and Perlas-Bernabe, JJ., concur.
||| (Del Castillo v. People, G.R. No. 185128, [January 30, 2012], 680 PHIL 447-467)
7. COMMISSIONER OF CUSTOMS v. HYPERMIX FEEDS 664 SRA 666 (2012)
SECOND DIVISION
[G.R. No. 179579. February 1, 2012.]
COMMISSIONER OF CUSTOMS and the DISTRICT COLLECTOR OF THE PORT OF
SUBIC, petitioners, vs. HYPERMIX FEEDS CORPORATION, respondent.
DECISION
SERENO, J p:
Before us is a Petition for Review under Rule 45, 1 assailing the Decision 2 and the
Resolution 3 of the Court of Appeals (CA), which nullified the Customs Memorandum
Order (CMO) No. 27-2003 4 on the tariff classification of wheat issued by petitioner
Commissioner of Customs.
The antecedent facts are as follows:
On 7 November 2003, petitioner Commissioner of Customs issued CMO 27-2003. Under
the Memorandum, for tariff purposes, wheat was classified according to the following: (1)
importer or consignee; (2) country of origin; and (3) port of discharge. 5 The regulation
provided an exclusive list of corporations, ports of discharge, commodity descriptions and
countries of origin. Depending on these factors, wheat would be classified either as food
grade or feed grade. The corresponding tariff for food grade wheat was 3%, for feed
grade, 7%.
CMO 27-2003 further provided for the proper procedure for protest or Valuation and
Classification Review Committee (VCRC) cases. Under this procedure, the release of the
articles that were the subject of protest required the importer to post a cash bond to cover
the tariff differential. 6
A month after the issuance of CMO 27-2003, on 19 December 2003, respondent filed a
Petition for Declaratory Relief 7 with the Regional Trial Court (RTC) of Las Pias City. It
anticipated the implementation of the regulation on its imported and perishable Chinese
milling wheat in transit from China. 8 Respondent contended that CMO 27-2003 was
issued without following the mandate of the Revised Administrative Code on public
participation, prior notice, and publication or registration with the University of the
Philippines Law Center.
Respondent also alleged that the regulation summarily adjudged it to be a feed grade
supplier without the benefit of prior assessment and examination; thus, despite having
imported food grade wheat, it would be subjected to the 7% tariff upon the arrival of the
shipment, forcing them to pay 133% more than was proper.
Furthermore, respondent claimed that the equal protection clause of the Constitution was
violated when the regulation treated non-flour millers differently from flour millers for no
reason at all.
Lastly, respondent asserted that the retroactive application of the regulation was
confiscatory in nature.
643
On 19 January 2004, the RTC issued a Temporary Restraining Order (TRO) effective for
twenty (20) days from notice. 9
Petitioners thereafter filed a Motion to Dismiss. 10 They alleged that: (1) the RTC did not
have jurisdiction over the subject matter of the case, because respondent was asking for
a judicial determination of the classification of wheat; (2) an action for declaratory relief
was improper; (3) CMO 27-2003 was an internal administrative rule and not legislative in
nature; and (4) the claims of respondent were speculative and premature, because the
Bureau of Customs (BOC) had yet to examine respondent's products. They likewise
opposed the application for a writ of preliminary injunction on the ground that they had
not inflicted any injury through the issuance of the regulation; and that the action would
be contrary to the rule that administrative issuances are assumed valid until declared
otherwise.
On 28 February 2005, the parties agreed that the matters raised in the application for
preliminary injunction and the Motion to Dismiss would just be resolved together in the
main case. Thus, on 10 March 2005, the RTC rendered its Decision 11 without having to
resolve the application for preliminary injunction and the Motion to Dismiss.
The trial court ruled in favor of respondent, to wit:
WHEREFORE, in view of the foregoing, the Petition is GRANTED and the subject
Customs Memorandum Order 27-2003 is declared INVALID and OF NO FORCE AND
EFFECT. Respondents Commissioner of Customs, the District Collector of Subic or
anyone acting in their behalf are to immediately cease and desist from enforcing the said
Customs Memorandum Order 27-2003.
SO ORDERED. 12
The RTC held that it had jurisdiction over the subject matter, given that the issue raised
by respondent concerned the quasi-legislative powers of petitioners. It likewise stated that
a petition for declaratory relief was the proper remedy, and that respondent was the
proper party to file it. The court considered that respondent was a regular importer, and
that the latter would be subjected to the application of the regulation in future transactions.
With regard to the validity of the regulation, the trial court found that petitioners had not
followed the basic requirements of hearing and publication in the issuance of CMO 272003. It likewise held that petitioners had "substituted the quasi-judicial determination of
the commodity by a quasi-legislative predetermination." 13 The lower court pointed out
that a classification based on importers and ports of discharge were violative of the due
process rights of respondent.
Dissatisfied with the Decision of the lower court, petitioners appealed to the CA, raising
the same allegations in defense of CMO 27-2003. 14 The appellate court, however,
dismissed the appeal. It held that, since the regulation affected substantial rights of
petitioners and other importers, petitioners should have observed the requirements of
notice, hearing and publication.
Hence, this Petition.
Petitioners raise the following issues for the consideration of this Court:
I. THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE WHICH IS
NOT IN ACCORD WITH THE LAW AND PREVAILING JURISPRUDENCE.
II. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE TRIAL
COURT HAS JURISDICTION OVER THE CASE.
The Petition has no merit.
We shall first discuss the propriety of an action for declaratory relief.
Rule 63, Section 1 provides:
Who may file petition. Any person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or regulation,
ordinance, or any other governmental regulation may, before breach or violation thereof,
bring an action in the appropriate Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of his rights or duties, thereunder.
644
The requirements of an action for declaratory relief are as follows: (1) there must be a
justiciable controversy; (2) the controversy must be between persons whose interests are
adverse; (3) the party seeking declaratory relief must have a legal interest in the
controversy; and (4) the issue involved must be ripe for judicial determination. 15 We find
that the Petition filed by respondent before the lower court meets these requirements.
First, the subject of the controversy is the constitutionality of CMO 27-2003 issued by
petitioner Commissioner of Customs. In Smart Communications v. NTC, 16 we held:
The determination of whether a specific rule or set of rules issued by an administrative
agency contravenes the law or the constitution is within the jurisdiction of the regular
courts. Indeed, the Constitution vests the power of judicial review or the power to declare
a law, treaty, international or executive agreement, presidential decree, order, instruction,
ordinance, or regulation in the courts, including the regional trial courts. This is within the
scope of judicial power, which includes the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments. 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)
Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v. Department of
Finance Secretary, 17 we said:
. . . [A] legislative rule is in the nature of subordinate legislation, designed to implement a
primary legislation by providing the details thereof. . . .
In addition such rule must be published. On the other hand, interpretative rules are
designed to provide guidelines to the law which the administrative agency is in charge of
enforcing.
Accordingly, in considering a legislative rule a court is free to make three inquiries: (i)
whether the rule is within the delegated authority of the administrative agency; (ii) whether
it is reasonable; and (iii) whether it was issued pursuant to proper procedure. But the court
is not free to substitute its judgment as to the desirability or wisdom of the rule for the
legislative body, by its delegation of administrative judgment, has committed those
questions to administrative judgments and not to judicial judgments. In the case of an
interpretative rule, the inquiry is not into the validity but into the correctness or propriety
of the rule. As a matter of power a court, when confronted with an interpretative rule, is
free to (i) give the force of law to the rule; (ii) go to the opposite extreme and substitute
its judgment; or (iii) give some intermediate degree of authoritative weight to the
interpretative rule. (Emphasis supplied)
Second, the controversy is between two parties that have adverse interests. Petitioners
are summarily imposing a tariff rate that respondent is refusing to pay.
Third, it is clear that respondent has a legal and substantive interest in the implementation
of CMO 27-2003. Respondent has adequately shown that, as a regular importer of wheat,
on 14 August 2003, it has actually made shipments of wheat from China to Subic. The
shipment was set to arrive in December 2003. Upon its arrival, it would be subjected to
the conditions of CMO 27-2003. The regulation calls for the imposition of different tariff
rates, depending on the factors enumerated therein. Thus, respondent alleged that it
would be made to pay the 7% tariff applied to feed grade wheat, instead of the 3% tariff
on food grade wheat. In addition, respondent would have to go through the procedure
under CMO 27-2003, which would undoubtedly toll its time and resources. The lower
court correctly pointed out as follows:
. . . As noted above, the fact that petitioner is precisely into the business of importing
wheat, each and every importation will be subjected to constant disputes which will result
into (sic) delays in the delivery, setting aside of funds as cash bond required in the CMO
as well as the resulting expenses thereof. It is easy to see that business uncertainty will
645
be a constant occurrence for petitioner. That the sums involved are not minimal is shown
by the discussions during the hearings conducted as well as in the pleadings filed. It may
be that the petitioner can later on get a refund but such has been foreclosed because the
Collector of Customs and the Commissioner of Customs are bound by their own CMO.
Petitioner cannot get its refund with the said agency. We believe and so find that Petitioner
has presented such a stake in the outcome of this controversy as to vest it with standing
to file this petition. 18 (Emphasis supplied)
Finally, the issue raised by respondent is ripe for judicial determination, because litigation
is inevitable 19 for the simple and uncontroverted reason that respondent is not included
in the enumeration of flour millers classified as food grade wheat importers. Thus, as the
trial court stated, it would have to file a protest case each time it imports food grade wheat
and be subjected to the 7% tariff.
It is therefore clear that a petition for declaratory relief is the right remedy given the
circumstances of the case.
Considering that the questioned regulation would affect the substantive rights of
respondent as explained above, it therefore follows that petitioners should have applied
the pertinent provisions of Book VII, Chapter 2 of the Revised Administrative Code, to wit:
Section 3. Filing. (1) Every agency shall file with the University of the Philippines Law
Center three (3) certified copies of every rule adopted by it. Rules in force on the date of
effectivity of this Code which are not filed within three (3) months from that date shall not
thereafter be the bases of any sanction against any party of persons.
xxx xxx xxx
Section 9. Public Participation. (1) If not otherwise required by law, an agency shall,
as far as practicable, publish or circulate notices of proposed rules and afford interested
parties the opportunity to submit their views prior to the adoption of any rule.
(2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates
shall have been published in a newspaper of general circulation at least two (2) weeks
before the first hearing thereon.
(3) In case of opposition, the rules on contested cases shall be observed.
When an administrative rule is merely interpretative in nature, its applicability needs
nothing further than its bare issuance, for it gives no real consequence more than what
the law itself has already prescribed. When, on the other hand, the administrative rule
goes beyond merely providing for the means that can facilitate or render least
cumbersome the implementation of the law but substantially increases the burden of
those governed, it behooves the agency to accord at least to those directly affected a
chance to be heard, and thereafter to be duly informed, before that new issuance is given
the force and effect of law. 20
Likewise, in Taada v. Tuvera, 21 we held:
The clear object of the above-quoted provision is to give the general public adequate
notice of the various laws which are to regulate their actions and conduct as citizens.
Without such notice and publication, there would be no basis for the application of the
maxim "ignorantia legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he had no notice
whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication
of laws taken so vital significance that at this time when the people have bestowed upon
the President a power heretofore enjoyed solely by the legislature. While the people are
kept abreast by the mass media of the debates and deliberations in the Batasan
Pambansa and for the diligent ones, ready access to the legislative records no such
publicity accompanies the law-making process of the President. Thus, without publication,
646
the people have no means of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves of the specific contents
and texts of such decrees. (Emphasis supplied)
Because petitioners failed to follow the requirements enumerated by the Revised
Administrative Code, the assailed regulation must be struck down.
Going now to the content of CMO 27-2003, we likewise hold that it is unconstitutional for
being violative of the equal protection clause of the Constitution.
The equal protection clause means that no person or class of persons shall be deprived
of the same protection of laws enjoyed by other persons or other classes in the same
place in like circumstances. Thus, the guarantee of the equal protection of laws is not
violated if there is a reasonable classification. For a classification to be reasonable, it must
be shown that (1) it rests on substantial distinctions; (2) it is germane to the purpose of
the law; (3) it is not limited to existing conditions only; and (4) it applies equally to all
members of the same class. 22
Unfortunately, CMO 27-2003 does not meet these requirements. We do not see how the
quality of wheat is affected by who imports it, where it is discharged, or which country it
came from.
Thus, on the one hand, even if other millers excluded from CMO 27-2003 have imported
food grade wheat, the product would still be declared as feed grade wheat, a classification
subjecting them to 7% tariff. On the other hand, even if the importers listed under CMO
27-2003 have imported feed grade wheat, they would only be made to pay 3% tariff, thus
depriving the state of the taxes due. The regulation, therefore, does not become
disadvantageous to respondent only, but even to the state.
It is also not clear how the regulation intends to "monitor more closely wheat importations
and thus prevent their misclassification." A careful study of CMO 27-2003 shows that it
not only fails to achieve this end, but results in the opposite. The application of the
regulation forecloses the possibility that other corporations that are excluded from the list
import food grade wheat; at the same time, it creates an assumption that those who meet
the criteria do not import feed grade wheat. In the first case, importers are unnecessarily
burdened to prove the classification of their wheat imports; while in the second, the state
carries that burden.
Petitioner Commissioner of Customs also went beyond his powers when the regulation
limited the customs officer's duties mandated by Section 1403 of the Tariff and Customs
Law, as amended. The law provides:
Section 1403. Duties of Customs Officer Tasked to Examine, Classify, and Appraise
Imported Articles. The customs officer tasked to examine, classify, and appraise
imported articles shall determine whether the packages designated for examination and
their contents are in accordance with the declaration in the entry, invoice and other
pertinent documents and shall make return in such a manner as to indicate whether the
articles have been truly and correctly declared in the entry as regard their quantity,
measurement, weight, and tariff classification and not imported contrary to law. He shall
submit samples to the laboratory for analysis when feasible to do so and when such
analysis is necessary for the proper classification, appraisal, and/or admission into the
Philippines of imported articles.
Likewise, the customs officer shall determine the unit of quantity in which they are usually
bought and sold, and appraise the imported articles in accordance with Section 201 of
this Code.
Failure on the part of the customs officer to comply with his duties shall subject him to the
penalties prescribed under Section 3604 of this Code.
The provision mandates that the customs officer must first assess and determine the
classification of the imported article before tariff may be imposed. Unfortunately, CMO
23-2007 has already classified the article even before the customs officer had the chance
to examine it. In effect, petitioner Commissioner of Customs diminished the powers
647
granted by the Tariff and Customs Code with regard to wheat importation when it no
longer required the customs officer's prior examination and assessment of the proper
classification of the wheat.
It is well-settled that rules and regulations, which are the product of a delegated power to
create new and additional legal provisions that have the effect of law, should be within
the scope of the statutory authority granted by the legislature to the administrative agency.
It is required that the regulation be germane to the objects and purposes of the law; and
that it be not in contradiction to, but in conformity with, the standards prescribed by law.
23
In summary, petitioners violated respondent's right to due process in the issuance of CMO
27-2003 when they failed to observe the requirements under the Revised Administrative
Code. Petitioners likewise violated respondent's right to equal protection of laws when
they provided for an unreasonable classification in the application of the regulation.
Finally, petitioner Commissioner of Customs went beyond his powers of delegated
authority when the regulation limited the powers of the customs officer to examine and
assess imported articles.
WHEREFORE, in view of the foregoing, the Petition is DENIED.
SO ORDERED.
Carpio, Brion, Perez and Reyes, JJ., concur.
||| (Commissioner of Customs v. Hypermix Feeds Corp., G.R. No. 179579, [February 1,
2012], 680 PHIL 681-695)
8. MANOTOK VS. HEIRS OF BARQUE 667 SCRA 472 (2012)
EN BANC
[G.R. Nos. 162335 & 162605. March 6, 2012.]
SEVERINO M. MANOTOK IV, FROILAN M. MANOTOK, FERNANDO M. MANOTOK III,
MA. MAMERTA M. MANOTOK, PATRICIA L. TIONGSON, PACITA L. GO, ROBERTO
LAPERAL III, MICHAEL MARSHALL V. MANOTOK, MARYANN MANOTOK, FELISA
MYLENE V. MANOTOK, IGNACIO V. MANOTOK, JR., MILAGROS V. MANOTOK,
SEVERINO MANOTOK III, ROSA R. MANOTOK, MIGUEL A.B. SISON, GEORGE M.
BOCANEGRA, MA. CRISTINA E. SISON, PHILIPP L. MANOTOK, JOSE CLEMENTE L.
MANOTOK, RAMON SEVERINO L. MANOTOK, THELMA R. MANOTOK, JOSE MARIA
MANOTOK, JESUS JUDE MANOTOK, JR. and MA. THERESA L. MANOTOK,
represented by their Attorney-in-fact, Rosa R. Manotok, petitioners, vs. HEIRS OF
HOMER L. BARQUE, represented by TERESITA BARQUE HERNANDEZ, respondents.
RESOLUTION
At bar are the motions for reconsideration separately filed by the Manotoks, Barques and
Manahans of our Decision promulgated on August 24, 2010, the dispositive portion of
which reads:
WHEREFORE, the petitions filed by the Manotoks under Rule 45 of the 1997 Rules of
Civil Procedure, as amended, as well as the petition-in-intervention of the Manahans, are
DENIED. The petition for reconstitution of title filed by the Barques is likewise DENIED.
TCT No. RT-22481 (372302) in the name of Severino Manotok IV, et al., TCT No. 210177
in the name of Homer L. Barque and Deed of Conveyance No. V-200022 issued to
Felicitas B. Manahan, are all hereby declared NULL and VOID. The Register of Deeds of
Caloocan City and/or Quezon City are hereby ordered to CANCEL the said titles. The
Court hereby DECLARES that Lot 823 of the Piedad Estate, Quezon City legally belongs
to the NATIONAL GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES, without
648
prejudice to the institution of REVERSION proceedings by the State through the Office of
the Solicitor General.
With costs against the petitioners.
SO ORDERED.
The Manotoks raised the following grounds in their motion for reconsideration with motion
for oral arguments:
1. It is unjust and oppressive to deprive the Manotoks of property they have long held and
acquired from the State, on consideration fully paid and received, and under registered
title issued by the State itself, on nothing more than the assumed failure of the State's
agents to inscribe a ministerial "approval" on the transaction deeds.
2. The annulment of Friar Land sales, simply because physical evidence of the
Secretary's ministerial approval can no longer be found, may void transactions involving
thousands of hectares of land, and affect possibly millions of people to whom the lands
may have since been parceled out, sold and resold. IACDaS
3. The Manotoks were given no due notice of the issue of reversion, which this case on
appeal did not include, and which was thrust upon the Manotoks only in the final resolution
disposing of the appeal.
It would be error for the Honorable Court to let this matter go without a serious and full reexamination. This can be accomplished, among others, by allowing this motion for
reconsideration to be heard on oral argument, to try to permit all pertinent considerations
to be aired before the Court and taken into account.
4. These G.R. Nos. 162335 and 162605 were an appeal from administrative reconstitution
proceedings before LRA Reconstitution officer Benjamin Bustos. But the Resolution dated
18 December 2008 which finally reversed the CA's rulings, affirmed the denial by Bustos
of the application for administrative reconstitution of the Barques' purported transfer
certificate of title, and terminated the appeal introduced a new "case" on the Manotok
property. It ordered evidence-taking at the CA, on which the Supreme Court proposed
itself to decide, in the first instance, an alleged ownership controversy over the Manotok
property.
5. The Manotoks objected to the "remand" on jurisdictional and due process grounds. The
original and exclusive jurisdiction over the subject matter of the case is vested by law on
the regional trial courts.
6. The Honorable Court erred in proceeding to judgment divesting the Manotoks of their
title to Lot 823 of the Piedad Estate, without a trial in the courts of original and exclusive
jurisdiction, and in disregard of process which the law accords to all owners-inpossession.
7. The Honorable Court erred in concluding that the Manotoks, despite being owners in
possession under a registered title, may be compelled to produce the deeds by which the
Government had transferred the property to them, and "failing" which can be divested of
their ownership in favor of the Government, even if the latter has not demanded a
reversion or brought suit for that purpose.
8. The Honorable Court erred in imposing on the Manotoks, contrary to Art. 541 of the
Civil Code,the obligation to prove their ownership of the subject property, and in awarding
their title to the Government who has not even sued to contest that ownership.
649
9. The Honorable Court erred in finding that Sale Certificate No. 1054, which Severino
Manotok acquired by assignment in 1923, was not approved by the Director of Lands and
the Secretary of Agriculture and Natural Resources, and in finding that a Sale Certificate
without the Secretary's approval is void.
10. The Honorable Court erred in concluding that the Manotoks had no valid Deed of
Conveyance of Lot 823 from the Government. The original of Deed of Conveyance No.
29204 gave the register of deeds the authority to issue the transfer certificate of title in
the name of the buyer Severino Manotok, which is required by law to be filed with and
retained in the custody of the register of deeds. We presume that the copy thereof actually
transmitted to and received by the register of deeds did contain the Secretary's signature
because he in fact issued the TCT. And we rely on this presumption because the
document itself can no longer be found.
11. Assuming arguendo that the original Deed of Conveyance No. 29204 the register of
deeds received did not bear the Department Secretary's signature, DENR Memorandum
Order No. 16-05 dated October 27, 2005 cured the defect. To deny the Manotoks the
benefit of ratification under said MO, on the erroneous interpretation that it covered only
those found in the records of the "field offices" of the DENR and LMB, would be
discriminatory. The Department Secretary's (assumed) failure to affix his signature on the
deed of conveyance could not defeat the Manotoks' right to the lot after they had fully
paid for it.
Republic Act No. 9443 must be applied, mutatis mutandis, to the Manotoks and the
Piedad Estate.
12. The Honorable Court erred in denying their right to be informed of the CA's report and
be heard thereon prior to judgment, as basic requirements of due process.
The Barques anchor their motion for reconsideration on the following:
I
THE HONORABLE SUPREME COURT GRAVELY ERRED IN DENYING THE
PETITION FOR RECONSTITUTION FILED BY RESPONDENTS HEIRS OF BARQUE
WITHOUT STATING THE GROUNDS FOR SUCH DENIAL. THIAaD
II
THE HONORABLE SUPREME COURT GRAVELY ERRED IN INSTANTLY
DECLARING IN THE DISPOSITIVE PORTION OF THE DECISION THAT ALONG WITH
FELICITAS B. MANAHAN'S TITLE, RESPONDENTS HEIRS OF BARQUE'S TITLE TCT
NO. 210177 IS LIKEWISE NULL AND VOID, WITHOUT STATING A CLEAR AND
DEFINITE BASIS THEREFOR.
III
THE HONORABLE SUPREME COURT GRAVELY ERRED IN DECLARING TRANSFER
CERTIFICATE OF TITLE NO. 210177 IN THE NAME OF HOMER L. BARQUE NULL
AND VOID.
IV
THE HONORABLE COURT OF APPEALS' FACTUAL FINDINGS, ADOPTED BY THE
HONORABLE SUPREME COURT IN THE DECISION DATED 24 AUGUST 2010, ARE
CONTRARY TO THE EVIDENCE PRESENTED.
650
V
THE HONORABLE SUPREME COURT'S FINDINGS IN THE DECISION DATED 24
AUGUST 2010 ARE CONTRARY TO LAW.
As to the Manahans, they seek a partial reconsideration and to allow further reception of
evidence, stating the following grounds:
I. As the original of Sale Certificate No. 511 could not be found in the files of the LMB or
the DENR-NCR at the time of the hearings before the Commissioners, the existence of
the certificate was proven by secondary evidence. The Commissioners erred in ignoring
secondary evidence of the contents of Sale Certificate No. 511 because of mere doubt
and suspicion as to its authenticity and in the absence of contradicting evidence.
II. The OSG which has been tasked by the Honorable Court to obtain documents from
the LMB and DENR-NCR relative to the conveyance of Lot 823, Piedad Estate, furnished
intevenors with a certified true copy of Sale Certificate No. 511 which it obtained from the
DENR-NCR on September 11, 2010, together with the explanation of DENR-NCR why
the document is available only now. (Certified true copy of Sale Certificate No. 511 and
Sworn Explanation of Evelyn G. Celzo attached as Annexes "I" and "II".
III. When Valentin Manahan offered to purchase Lot 823, Piedad Estate, being the "actual
settler and occupant" who under the law enjoyed preference to buy the lot, his status as
"actual settler and occupant" must have been verified by the Bureau of Public Lands
because the presumption is that official duty has been regularly performed. The
administrative determination of the status of Valentin Manahan as "actual settler and
occupant" can not now be reviewed after the lapse of about eight (8) decades when
parties, witnesses, documents and other evidence are hardly or no longer available.
IV. Abundant evidence was submitted by intervenors that they and their predecessors-ininterest occupied and possessed Lot 823 up to 1948 when they were dispossessed by
armed men. It was error for the Commissioners to ignore the evidence of the intervenors,
there being no contradicting proof.
V. The Commissioners committed palpable error in not according evidentiary value to the
Investigation Report of Evelyn dela Rosa because it is allegedly "practically a replica or
summation of Felicitas B. Manahan's allegations embodied in her petition." Examination
of the dates of the documents will show that the Investigation Report preceded the
Petition. The Petition, therefore, is based on the Investigation Report, and not the other
way around. DTcACa
VI. The pronouncement of the Commissioners that Sale Certificate No. 511 is stale is
incorrect. Intervenors made continuing efforts to secure a deed of conveyance based on
Sale Certificate No. 511. Defense of staleness or laches belongs to the party against
whom the claim is asserted; it is only that party who can raise it. It can also be waived, as
in this case when the LMB which had the sole authority under Act No. 1120 to convey
friar lands, issued to intervenor Felicitas B. Manahan Deed of Conveyance No. V-200022.
VII. The requirement of Act No. 1120 that a deed of conveyance of friar land must be
signed by the Secretary of Interior was dispensed with pursuant to law and Presidential
issuances which have the force of law.
VIII. Deeds of conveyance lacking the signature of the Department Secretary were ratified
by President Joseph Estrada and DENR Secretary Michael T. Defensor.
The motions are bereft of merit.
651
Upon the theory that this Court had no power to cancel their certificate of title over Lot
823, Piedad Estate in the resolution of the present controversy, the Manotoks contend
that our Resolution of December 18, 2008 terminated the appeal from the Land
Registration Authority (LRA) administrative reconstitution proceedings by reversing the
CA's rulings and affirming the denial by LRA Reconstitution Officer Benjamin M. Bustos
of the application for administrative reconstitution of the Barques' Transfer Certificate of
Title (TCT) No. 210177. The appeal having been terminated, the Manotoks argued that
the remand to the CA for evidence-taking had introduced a new "case" in which this Court
will decide, in the first instance, an "alleged" ownership issue over the property. Such
action is legally infirm since the law has vested exclusive original jurisdiction over civil
actions involving title to real property on the trial courts.
The argument is untenable.
In our December 18, 2008 Resolution, we set aside the December 12, 2005 Decision
rendered by the First Division and recalled the entry of judgment. We ruled that neither
the CA nor the LRA had jurisdiction to cancel the Manotok title, a relief sought by the
Barques in the administrative reconstitution proceedings. The Court En Banc proceeded
with the reevaluation of the cases on a pro hac vice basis. During the oral arguments,
there were controversial factual matters which emerged as the parties fully ventilated their
respective claims, in the course of which the Barques' claim of ownership was found to
be exceedingly weak. Indeed, both the LRA and CA erred in ruling that the Barques had
the right to seek reconstitution of their purported title. Reevaluation of the evidence on
record likewise indicated that the Manotoks' claim to title is just as flawed as that of the
Barques. Following the approach in Alonso v. Cebu Country Club, Inc. 1 also involving a
Friar Land, Republic v. Court of Appeals 2 and Manotok Realty, Inc. v. CLT Realty
Development Corporation, 3 the majority resolved to remand this case for reception of
evidence on the parties' competing claims of ownership over Lot 823 of the Piedad Estate.
Given the contentious factual issues, it was necessary for this Court to resolve the same
for the complete determination of the present controversy involving a huge tract of friar
land. It was thus not the first time the Court had actually resorted to referring a factual
matter pending before it to the CA.
Maintaining their objection to the order for reception of evidence on remand, the Manotoks
argue that as owners in possession, they had no further duty to defend their title pursuant
to Article 541 of the Civil Code which states that: "[a] possessor in the concept of owner
has in his favor the legal presumption that he possesses with a just title and he cannot be
obliged to show or prove it." But such presumption is prima facie, and therefore it prevails
until the contrary is proved. 4 In the light of serious flaws in the title of Severino Manotok
which were brought to light during the reconstitution proceedings, the Court deemed it
proper to give all the parties full opportunity to adduce further evidence, and in particular,
for the Manotoks to prove their presumed just title over the property also claimed by the
Barques and the Manahans. As it turned out, none of the parties were able to establish
by clear and convincing evidence a valid alienation from the Government of the subject
friar land. The declaration of ownership in favor of the Government was but the logical
consequence of such finding. EDSHcT
We have ruled that the existence of Sale Certificate No. 1054 in the records of the DENRLMB was not duly established. No officer of the DENR-NCR or LMB having official
custody of sale certificates covering friar lands testified as to the issuance and authenticity
of Exh. 10 submitted by the Manotoks. And even assuming that Exh. 10 was actually
sourced from the DENR-LMB, there was no showing that it was duly issued by the
Director of Lands and approved by the Secretary of Agriculture and Natural Resources
(DENR). On this point, the Manotoks hinted that the LMB's certifying the document (Exh.
10) at the Manotoks' request was a deliberate fraud in order to give them either a false
document, the usual unsigned copy of the signed original, or a fake copy.
652
The Manotoks further assert that this would imply that the LMB either did not produce the
genuine article, or could not produce it. This could only mean that the document which
the NBI "found" to be fake or spurious, if this Court accepts that finding, was "planted
evidence" or evidence inserted in the LMB files to discredit the Manotok title. Nonetheless,
the Manotoks insist there were independent evidence which supposedly established the
prior existence of Sale Certificate No. 1054. These documents are: (a) photocopy of
Assignment of Sale Certificate No. 1054 dated 1929; (b) official receipt of payment for
said certified copy; (c) photocopies of the other assignment deeds dated 1923; (d) official
receipts of installment payments on Lot 823 issued to Severino Manotok; (e) file copies
in the National Archives of the Deed of Conveyance No. 29204; and (f) the notarial
registers in which the said Deed of Conveyance, as well as the assignment documents,
were entered.
The contentions have no merit, and at best speculative. As this Court categorically ruled
in Alonso v. Cebu Country Club, Inc., 5 "approval by the Secretary of Agriculture and
Commerce of the sale of friar lands is indispensable for its validity, hence, the absence
of such approval made the sale null and void ab initio." In that case, the majority declared
that no valid titles can be issued on the basis of the sale or assignment made in favor of
petitioner's father due to the absence of signature of the Director of Lands and the
Secretary of the Interior, and the approval of the Secretary of Natural Resources in the
Sale Certificate and Assignment of Sale Certificate. Applying the Alonso ruling to these
cases, we thus held that no legal right over the subject friar land can be recognized in
favor of the Manotoks under the assignment documents in the absence of the certificate
of sale duly signed by the Director of Lands and approved by the Secretary of Agriculture
and Natural Resources.
That a valid certificate of sale was issued to Severino Manotok's assignors cannot simply
be presumed from the execution of assignment documents in his favor. Neither can it be
deduced from the alleged issuance of the half-torn TCT No. 22813, itself a doubtful
document as its authenticity was not established, much less the veracity of its recitals
because the name of the registered owner and date of issuance do not appear at all. The
Manotoks until now has not offered any explanation as to such condition of the alleged
title of Severino Manotok; they assert that it is the Register of Deeds himself "who should
be in a position to explain that condition of the TCT in his custody." But then, no Register
of Deeds had testified and attested to the fact that the original of TCT No. 22813 was
under his/her custody, nor that said certificate of title in the name of Severino Manotok
existed in the files of the Registry of Deeds of Caloocan or Quezon City. The Manotoks
consistently evaded having to explain the circumstances as to how and where TCT No.
22813 came about. Instead, they urge this Court to validate their alleged title on the basis
of the disputable presumption of regularity in the performance of official duty. Such stance
hardly satisfies the standard of clear and convincing evidence in these cases. Even the
existence of the official receipts showing payment of the price to the land by Severino
Manotok does not prove that the land was legally conveyed to him without any contract
of sale having been executed by the government in his favor. Neither did the alleged
issuance of TCT No. 22183 in his favor vest ownership upon him over the land nor did it
validate the alleged purchase of Lot 283, which is null and void. The absence of the
Secretary's approval in Certificate of Sale No. 1054 made the supposed sale null and void
ab initio. 6
In the light of the foregoing, the claim of the Barques who, just like the Manahans, were
unable to produce an authentic and genuine sale certificate, must likewise fail. The
Decision discussed extensively the findings of the CA that the Barques' documentary
evidence were either spurious or irregularly procured, which even buttressed the earlier
findings mentioned in the December 18, 2008 Resolution. The CA's findings and
recommendations with respect to the claims of all parties, have been fully adopted by this
653
Court, as evident in our disquisitions on the indispensable requirement of a validly issued

Certificate of Sale over Lot 823, Piedad Estate. IADaSE
As to the motion of the Manahans to admit an alleged certified true copy of Sale Certificate
No. 511 dated June 23, 1913 in the name of Valentin Manahan which, as alleged in the
attached Sworn Explanation of Evelyn G. Celzo, the latter had inadvertently failed to
attach to her Investigation Report forwarded to the CENRO, this Court cannot grant said
motion.
This belatedly submitted copy of Sale Certificate No. 511 was not among those official
documents which the Office of the Solicitor General (OSG) offered as evidence, as in fact
no copy thereof can be found in the records of either the DENR-NCR or LMB. Moreover,
the sudden emergence of this unauthenticated document is suspicious, considering that
Celzo who testified, as witness for both the OSG and the Manahans, categorically
admitted that she never actually saw the application to purchase and alleged Sale
Certificate No. 511 of the Manahans. The relevant portions of the transcript of
stenographic notes of the cross-examination of said witness during the hearing before the
CA are herein quoted:
ATTY. SAN JUAN:
How about this part concerning Valentin Manahan having applied for the purchase of the
land? Did you get this from the neighbors or from Felicitas Manahan?
xxx xxx xxx
WITNESS:
No, sir. Only the Records Section, sir, that Valentin Manahan applied, sir.
ATTY. SAN JUAN:
You did not see Valentin Manahan's application but only the Records Section saw it?
WITNESS:
Yes, sir.
ATTY. SAN JUAN:
Did they tell you that they saw the application?
WITNESS:
I did not go further, sir.
xxx xxx xxx
ATTY. SAN JUAN:
And this report of yours says that Valentin Manahan was issued Sale Certificate No. 511
after completing the payment of the price of P2,140?
WITNESS:
Yes, sir.
654
ATTY. SAN JUAN:

You also got this from the records of the LMB, is that correct?
WITNESS:
Yes, sir.
ATTY. SAN JUAN:
You actually saw the sale certificate that was issued to Valentin Manahan after he paid
the price of P2,140?
WITNESS:
No, sir. I did not go further.
ATTY. SAN JUAN:
You did not see the sale certificate?
WITNESS:
Yes, Sir, but I asked only.
ATTY. SAN JUAN: cDaEAS
Who did you ask?
WITNESS:
The records officer, sir.
ATTY. SAN JUAN:
Whose name you can no longer recall, correct?
WITNESS:
I can no longer recall, sir.
ATTY. SAN JUAN:
And the information to you was the Sale Certificate No. 511 was issued after the price
was fully paid?
WITNESS:
Yes, sir.
ATTY. SAN JUAN:
And it was only after he applied for the purchase of the lot sometime after the survey of
1939 that he was issued Sale Certificate No. 511?
WITNESS:
655
I am not aware of the issuance of sale certificate. I am aware only of the deed of
assignment, Sir.
xxx xxx xxx 7 (Emphasis supplied.)
In view of the above admission, Celzo's explanation that the copy of Sale Certificate No.
511 signed by the Director of Lands and Secretary of the Interior was originally attached
to her Investigation Report, cannot be given credence. Even her testimony regarding the
conduct of her investigation of Lot 823, Piedad Estate and the Investigation Report she
submitted thereafter, failed to impress the CA on the validity of the Manahans' claim.
Indeed, records showed that Celzo's findings in her report were merely based on what
Felicitas Manahan told her about the alleged occupation and possession by Valentin
Manahan of the subject land.
In their Offer of Additional Evidence, the Manahans submitted a photocopy of a letter
dated December 21, 2010 allegedly sent by Atty. Allan V. Barcena (OIC, Director) to their
counsel, Atty. Romeo C. dela Cruz, which reads:
This has reference to your letter dated August 20, 2010 addressed to the Secretary of the
Department of Environment and Natural Resources (DENR) requesting that Deed of
Conveyance No. V-200022 issued on October 30, 2000 over Lot 823 of the Piedad Estate
in favor of Felicitas B. Manahan be ratified or confirmed for reasons stated therein. The
Office of the DENR Secretary in turn referred the letter to us for appropriate action.
Records of this Office on Lot 823 of the Piedad Estate, show that the Deed of Conveyance
No. V-200022 covering said lot in favor of Felicitas Manahan was issued by then Director
of the Land Management Bureau (LMB), now Undersecretary Ernesto D. Adobo, Jr., on
October 30, 2000. The Deed was issued based on General Memorandum Order (GMO)
No. 1 issued by then Secretary Jose J. Leido, Jr. of the Department of Natural Resources
on January 17, 1977, which authorized the Director of Lands, now Director of LMB, to
approve contracts of sale and deeds of conveyance affecting Friar Lands.
It is stressed that the confirmation of the Deed by this office is only as to the execution
and issuance based on the authority of LMB Director under GMO No. 1. This is without
prejudice to the final decision of the Supreme Court as to its validity in the case of
"Severino Manotok IV, et al. versus Heirs of Homer L. Barque" (G.R. No. 162335 &
162605).
Please be guided accordingly. 8 (Emphasis supplied.)
However, in the absence of a valid certificate of sale duly signed by the Secretary of
Interior or Agriculture and Natural Resources, such alleged confirmation of the execution
and issuance by the DENR-LMB of Deed of Conveyance No. V-00022 in favor of Felicitas
Manahan on October 30, 2000 is still insufficient to prove the Manahans' claim over the
subject land. HICcSA
In a Supplemental Manifestation dated November 18, 2010, the Manotoks submitted an
affidavit supposedly executed on November 11, 2010 by former DENR Secretary Michael
T. Defensor ("Defensor Affidavit") clarifying that MO 16-05 applies to all Deeds of
Conveyance that do not bear the signature of the Secretary of Natural Resources,
contrary to the CA and this Court's statement that said issuance refers only to those deeds
of conveyance on file with the records of the DENR field offices.
By its express terms, however, MO 16-05 covered only deeds of conveyances and not
unsigned certificates of sale. The explanation of Secretary Defensor stated the avowed
purpose behind the issuance, which is "to remove doubts or dispel objections as to the
validity of all Torrens transfer certificates of title issued over friar lands" thereby "ratifying
656
the deeds of conveyance to the friar land buyers who have fully paid the purchase price,
and are otherwise not shown to have committed any wrong or illegality in acquiring such
lands."
The Manahans propounded the same theory that contracts of sale over friar lands without
the approval of the Secretary of Natural Resources may be subsequently ratified, but
pointed out that unlike the Manotoks' Deed of Conveyance No. 29204 (1932), their Deed
of Conveyance No. V-2000-22 (2000) was issued and approved by the Director of Lands
upon prior authority granted by the Secretary.
In their Consolidated Memorandum dated December 19, 2010, the Manahans reiterated
their earlier argument that the LMB Director himself had the authority to approve contracts
of sale and deeds of conveyance over friar lands on the basis of General Memorandum
Order No. 1 issued in 1977 by then Secretary of Natural Resources Jose J. Leido, Jr.
delegating such function to the Director of Lands. This delegated power can also be
gleaned from Sec. 15, Chapter 1, Title XIV of the Administrative Code of 1987 which
provides that the Director of Lands shall "perform such other functions as may be provided
by law or assigned by the Secretary." Moreover, former President Corazon C. Aquino
issued Executive Order No. 131 dated January 20, 1987 reorganizing the LMB and
providing that the LMB Director shall, among others, perform other functions as may be
assigned by the Minister of Natural Resources.
On the basis of Art. 1317 9 of the Civil Code,the Manahans contend that deeds of
conveyance not bearing the signature of the Secretary can also be ratified. Further, they
cite Proclamation No. 172 issued by former President Joseph Ejercito Estrada which
declared that there should be no legal impediment for the LMB to issue such deeds of
conveyance since the applicants/purchasers have already paid the purchase price of the
lot, and as sellers in good faith, it is the obligation of the Government to deliver to said
applicants/purchasers the friar lands sold free of any lien or encumbrance whatsoever.
Eventually, when MO 16-05 was issued by Secretary Defensor, all these deeds of
conveyance lacking the signature of the Secretary of Natural Resources are thus deemed
signed or otherwise ratified. The CA accordingly erred in holding that MO 16-05 cannot
override Act No. 1120 which requires that a deed of conveyance must be signed by the
Secretary, considering that MO 16-05 is based on law and presidential issuances,
particularly EO 131, which have the force of law.
Meanwhile, in compliance with our directive, the Solicitor General filed his Comment on
the Defensor Affidavit submitted by the Manotoks. The Solicitor General contends that
said document is hearsay evidence, hence inadmissible and without probative value. He
points out that former DENR Secretary Defensor was not presented as a witness during
the hearings at the CA, thus depriving the parties including the government of the right to
cross-examine him regarding his allegations therein. And even assuming arguendo that
such affidavit is admissible as evidence, the Solicitor General is of the view that the
Manotoks, Barques and Manahans still cannot benefit from the remedial effect of MO 1605 in view of the decision rendered by this Court which ruled that none of the parties in
this case has established a valid alienation from the Government of Lot 823 of the Piedad
Estate, and also because the curative effect of MO 16-05 is intended only for friar land
buyers whose deeds of conveyance lack the signature of the Secretary of the Interior or
Agriculture and Natural Resources, have fully paid the purchase price and are otherwise
not shown to have committed any wrong or illegality in acquiring the friar lands. He then
emphasizes that this Court has ruled that it is not only the deed of conveyance which
must be signed by the Secretary but also the certificate of sale itself. Since none of the
parties has shown a valid disposition to any of them of Lot 823 of the Piedad Estate, this
Court therefore correctly held that said friar land is still part of the patrimonial property of
the national government. ASTIED
657
The Court is not persuaded by the "ratification theory" espoused by the Manotoks and
Manahans.
The argument that the Director of Lands had delegated authority to approve contracts of
sale and deeds of conveyances over friar lands ignores the consistent ruling of this Court
in controversies involving friar lands. The aforementioned presidential/executive
issuances notwithstanding, this Court held in Solid State Multi-Products Corporation v.
CA, 10 Liao v. Court of Appeals, 11 and Alonso v. Cebu Country Club 12 that approval of
the Secretary of Agriculture and Commerce (later the Natural Resources) is indispensable
to the validity of sale of friar land pursuant to Sec. 18 of Act No. 1120 and that the
procedure laid down by said law must be strictly complied with.
As to the applicability of Art. 1317 of the Civil Code,we maintain that contracts of sale
lacking the approval of the Secretary fall under the class of void and inexistent contracts
enumerated in Art. 1409 13 which cannot be ratified. Section 18 of Act No. 1120
mandated the approval by the Secretary for a sale of friar land to be valid.
In his dissenting opinion, Justice Antonio T. Carpio disagreed with the majority's
interpretation of Section 18 of Act No. 1120, and proposed that based on Section 12 of
the same Act, it is the Deed of Conveyance that must bear the signature of the Secretary
of Interior/Agriculture and Natural Resources "because it is only when the final installment
is paid that the Secretary can approve the sale, the purchase price having been fully
paid." It was pointed out that the majority itself expressly admit that "it is only a ministerial
duty on the part of the Secretary to sign the Deed of Conveyance once the applicant had
made full payment on the purchase price of the land", citing jurisprudence to the effect
that "notwithstanding the failure of the government to issue the proper instrument of
conveyance when the purchaser finally pays the final installment of the purchase price,
the purchase of the friar land still acquired ownership.
We are unable to agree with the view that it is only the Director of Lands who signs the
Certificate of Sale.
The official document denominated as "Sale Certificate" clearly required both the
signatures of the Director of Lands who issued such sale certificate to an applicant
settler/occupant and the Secretary of the Interior/Agriculture and Natural Resources
indicating his approval of the sale. These forms had been prepared and issued by the
Chief of the Bureau of Public Lands under the supervision of the Secretary of the Interior,
consistent with Act No. 1120 "as may be necessary . . . to carry into effect all the
provisions [thereof] that are to be administered by or under [his] direction, and for the
conduct of all proceedings arising under such provisions." 14
We reiterate that Section 18 of Act No. 1120, as amended, is plain and categorical in
stating that:
SECTION 18. No lease or sale made by the Chief of the Bureau of Public Lands under
the provisions of this Act shall be valid until approved by the Secretary of the Interior.
Section 12 did not mention the requirement of signature or approval of the Secretary in
the sale certificate and deed of conveyance.
SECTION 12. It shall be the duty of the Chief of the Bureau of Public Lands by proper
investigation to ascertain what is the actual value of the parcel of land held by each settler
and occupant, taking into consideration the location and quality of each holding of land,
and any other circumstances giving [it] value. The basis of valuation shall likewise be, so
far as practicable, such [as] the aggregate of the values of all the holdings included in
each particular tract shall be equal to the cost to the Government to the entire tract,
including the cost of surveys, administration and interest upon the purchase money to the
658
time of sale. When the cost thereof shall have been thus ascertained, the Chief of the
Bureau of Public Lands shall give the said settler and occupant a certificate which shall
set forth in detail that the Government has agreed to sell to such settler and occupant the
amount of land so held by him, at the price so fixed, payable as provided in this Act at the
office of the Chief of Bureau of Public Lands, in gold coin of the United States or its
equivalent in Philippine currency, and that upon the payment of the final installment
together with [the] accrued interest the Government will convey to such settler and
occupant the said land so held by him by proper instrument of conveyance, which shall
be issued and become effective in the manner provided in section one hundred and
twenty-two of the Land Registration Act. The Chief of the Bureau of Public Lands shall, in
each instance where a certificate is given to the settler and occupant of any holding, take
his formal receipt showing the delivery of such certificate, signed by said settler and
occupant. DCAHcT
On the other hand, the first paragraph of Section 15 provides for the reservation of title in
the Government only for the purpose of ensuring payment of the purchase price, which
means that the sale was subject only to the resolutory condition of non-payment, while
the second paragraph states that the purchaser thereby acquires "the right of possession
and purchase" by virtue of a certificate of sale "signed under the provisions [thereof]." The
certificate of sale evidences the meeting of the minds between the Government and the
applicant regarding the price, the specific parcel of friar land, and terms of payment. In
Dela Torre v. Court of Appeals, 15 we explained that the non-payment of the full purchase
price is the only recognized resolutory condition in the case of sale of friar lands. We have
also held that it is the execution of the contract to sell and delivery of the certificate of sale
that vests title and ownership to the purchaser of friar land. 16 Where there is no certificate
of sale issued, the purchaser does not acquire any right of possession and purchase, as
implied from Section 15. By the mandatory language of Section 18, the absence of
approval of the Secretary of Interior/Agriculture and Natural Resources in the lease or
sale of friar land would invalidate the sale. These provisions read together indicate that
the approval of the Secretary is required in both the certificate of sale and deed of
conveyance, although the lack of signature of the Secretary in the latter may not defeat
the rights of the applicant who had fully paid the purchase price.
Justice Conchita Carpio Morales' dissent asserted that case law does not categorically
state that the required "approval" must be in the form of a signature on the Certificate of
Sale, and that there is no statutory basis for the requirement of the Secretary's signature
on the Certificate of Sale "apart from a strained deduction of Section 18."
As already stated, the official forms being used by the Government for this purpose clearly
show that the Director of Lands signs every certificate of sale issued covering a specific
parcel of friar land in favor of the applicant/purchaser while the Secretary of
Interior/Natural Resources signs the document indicating that the sale was approved by
him. To approve is to be satisfied with; to confirm, ratify, sanction, or consent to some act
or thing done by another; to sanction officially. 17 The Secretary of Interior/Natural
Resources signs and approves the Certificate of Sale to confirm and officially sanction
the conveyance of friar lands executed by the Chief of the Bureau of Public Lands (later
Director of Lands). It is worth mentioning that Sale Certificate No. 651 in the name of one
Ambrosio Berones dated June 23, 1913, 18 also covering Lot 823 of the Piedad Estate
and forming part of the official documents on file with the DENR-LMB which was formally
offered by the OSG as part of the official records on file with the DENR and LMB
pertaining to Lot 823, contains the signature of both the Director of Lands and Secretary
of the Interior. The Assignment of Sale Certificate No. 651 dated April 19, 1930 was also
signed by the Director of Lands. 19
Following the dissent's interpretation that the Secretary is not required to sign the
certificate of sale while his signature in the Deed of Conveyance may also appear
although merely a ministerial act, it would result in the absurd situation wherein the
659
certificate of sale and deed of conveyance both lacked the signature and approval of the
Secretary, and yet the purchaser's ownership is ratified, courtesy of DENR Memorandum
Order (MO) No. 16-05. It is also not farfetched that greater chaos will arise from conflicting
claims over friar lands, which could not be definitively settled until the genuine and official
manifestation of the Secretary's approval of the sale is discerned from the records and
documents presented. This state of things is simply not envisioned under the orderly and
proper distribution of friar lands to bona fide occupants and settlers whom the Chief of the
Bureau of Public Lands was tasked to identify. 20
The existence of a valid certificate of sale therefore must first be established with clear
and convincing evidence before a purchaser is deemed to have acquired ownership over
a friar land notwithstanding the non-issuance by the Government, for some reason or
another, of a deed of conveyance after completing the installment payments. In the
absence of such certificate of sale duly signed by the Secretary, no right can be
recognized in favor of the applicant. Neither would any assignee or transferee acquire
any right over the subject land. EaISDC
In Alonso v. Cebu Country Club, Inc., 21 the Court categorically ruled that the absence of
approval by the Secretary of Agriculture and Commerce in the sale certificate and
assignment of sale certificate made the sale null and void ab initio. Necessarily, there can
be no valid titles issued on the basis of such sale or assignment. 22
Justice Carpio, however, opined that the ruling in Alonso "was superseded with the
issuance by then Department of [Environment] and Natural Resources (DENR) Secretary
Michael T. Defensor of DENR Memorandum Order No. 16-05." It was argued that the
majority had construed a "limited application" when it declared that the Manotoks could
not benefit from said memorandum order because the latter refers only to deeds of
conveyance "on file with the records of the DENR field offices".
We disagree with the view that Alonso is no longer applicable to this controversy after the
issuance of DENR MO No. 16-05 which supposedly cured the defect in the Manotoks'
title.
First, DENR MO No. 16-05 explicitly makes reference only to Deeds of Conveyances, not
to Sale Certificates by which, under the express language of Section 15, the purchaser
of friar land acquires the right of possession and purchase pending final payment and the
issuance of title, such certificate being duly signed under the provisions of Act No. 1120.
Although the whereas clause of MO No. 16-05 correctly stated that it was only a
ministerial duty on the part of the Secretary to sign the Deed of Conveyance once the
applicant had made full payment on the purchase price of the land, it must be stressed
that in those instances where the formality of the Secretary's approval and signature is
dispensed with, there was a valid certificate of sale issued to the purchaser or transferor.
In this case, there is no indication in the records that a certificate of sale was actually
issued to the assignors of Severino Manotok, allegedly the original claimants of Lot 823,
Piedad Estate. DacASC
Second, it is basic that an administrative issuance like DENR Memorandum Order No.
16-05 must conform to and not contravene existing laws. In the interpretation and
construction of the statutes entrusted to them for implementation, administrative agencies
may not make rules and regulations which are inconsistent with the statute it is
administering, or which are in derogation of, or defeat its purpose. In case of conflict
between a statute and an administrative order, the former must prevail. 23 DENR
Memorandum Order No. 16-05 cannot supersede or amend the clear mandate of Section
18, Act No. 1120 as to dispense with the requirement of approval by the Secretary of the
Interior/Agriculture and Natural Resources of every lease or sale of friar lands.
660
But what is worse, as the dissent suggests, is that MO 16-05 would apply even to those
deeds of conveyances not found in the records of DENR or its field offices, such as the
Manotoks' Deed of Conveyance No. 29204 sourced from the National Archives. It would
then cover cases of claimants who have not been issued any certificate of sale but were
able to produce a deed of conveyance in their names. The Bureau of Lands was originally
charged with the administration of all laws relative to friar lands, pursuant to Act No. 2657
and Act No. 2711. Under Executive Order No. 192, 24 the functions and powers
previously held by the Bureau of Lands were absorbed by the Lands Management Bureau
(LMB) of the DENR, while those functions and powers not absorbed by the LMB were
transferred to the regional field offices. 25 As pointed out by the Solicitor General in the
Memorandum submitted to the CA, since the LMB and DENR-NCR exercise sole
authority over friar lands, they are naturally the "sole repository of documents and records
relative to Lot No. 823 of the Piedad Estate." 26
Third, the perceived disquieting effects on titles over friar lands long held by generations
of landowners cannot be invoked as justification for legitimizing any claim or acquisition
of these lands obtained through fraud or without strict compliance with the procedure laid
down in Act No. 1120. This Court, in denying with finality the motion for reconsideration
filed by petitioner in Alonso v. Cebu Country Club, Inc. 27 reiterated the settled rule that
"[a]pproval by the Secretary of the Interior cannot simply be presumed or inferred from
certain acts since the law is explicit in its mandate." 28 Petitioners failed to discharge their
burden of proving their acquisition of title by clear and convincing evidence, considering
the nature of the land involved.
As consistently held by this Court, friar lands can be alienated only upon proper
compliance with the requirements of Act No. 1120. The issuance of a valid certificate of
sale is a condition sine qua non for acquisition of ownership under the Friar Lands Act.
Otherwise, DENR Memorandum Order No. 16-05 would serve as administrative
imprimatur to holders of deeds of conveyance whose acquisition may have been obtained
through irregularity or fraud.
Contrary to the dissent of Justice Maria Lourdes P. A. Sereno that our decision has
"created dangers for the system of property rights in the Philippines", the Court simply
adhered strictly to the letter and spirit of the Friar Lands Act and jurisprudence interpreting
its provisions. Such imagined scenario of instability and chaos in the established property
regime, suggesting several other owners of lands formerly comprising the Piedad Estate
who are supposedly similarly situated, remains in the realm of speculation. Apart from
their bare allegations, petitioners (Manotoks) failed to demonstrate how the awardees or
present owners of around more than 2,000 hectares of land in the Piedad Estate can be
embroiled in legal disputes arising from unsigned certificates of sale.
On the other hand, this Court must take on the task of scrutinizing even certificates of title
held for decades involving lands of the public domain and those lands which form part of
the Government's patrimonial property, whenever necessary in the complete adjudication
of the controversy before it or where apparent irregularities and anomalies are shown by
the evidence on record. There is nothing sacrosanct about the landholdings in the Piedad
Estate as even prior to the years when Lot 823 could have been possibly "sold" or
disposed by the Bureau of Lands, there were already reported anomalies in the
distribution of friar lands in general. 29
Significantly, subsequent to the promulgation of our decision in Alonso, Republic Act No.
(RA) 9443 was passed by Congress confirming and declaring, subject to certain
exceptions, the validity of existing TCTs and reconstituted certificates of title covering the
Banilad Friar Lands Estate situated in Cebu. Alonso involved a friar land already titled but
without a sale certificate, and upon that ground we declared the registered owner as not
having acquired ownership of the land. RA 9443 validated the titles "notwithstanding the
lack of signatures and/or approval of the then Secretary of Interior (later Secretary of
661
Agriculture and Natural Resources) and/or the then Chief of the Bureau of Public lands
(later Director of Public Lands) in the copies of the duly executed Sale Certificate and
Assignments of Sale Certificates, as the case may be, now on file with the Community
Environment and Natural Resources Office (CENRO), Cebu City". IECcAT
The enactment of RA 9443 signifies the legislature's recognition of the statutory basis of
the Alonso ruling to the effect that in the absence of signature and/or approval of the
Secretary of Interior/Natural Resources in the Certificates of Sale on file with the CENRO,
the sale is not valid and the purchaser has not acquired ownership of the friar land.
Indeed, Congress found it imperative to pass a new law in order to exempt the already
titled portions of the Banilad Friar Lands Estate from the operation of Section 18. This
runs counter to the dissent's main thesis that a mere administrative issuance (DENR MO
No. 16-05) would be sufficient to cure the lack of signature and approval by the Secretary
in Certificate of Sale No. 1054 covering Lot 823 of the Piedad Estate.
In any event, the Manotoks now seek the application of RA 9443 to the Piedad Estate,
arguing that for said law to be constitutionally valid, its continued operation must be
interpreted in a manner that does not collide with the equal protection clause. Considering
that the facts in Alonso from which RA 9443 sprung are similar to those in this case, it is
contended that there is no reason to exclude the Piedad Estate from the ambit of RA
9443.
Justice Carpio's dissent concurs with this view, stating that to limit its application to the
Banilad Friar Lands Estate will result in class legislation. RA 9443 supposedly should be
extended to lands similarly situated, citing the case of Central Bank Employees
Association, Inc. v. Bangko Sentral ng Pilipinas. 30
In the aforesaid case, the Court extended the benefits of subsequent laws exempting all
rank-and-file employees of other government financing institutions (GFIs) from the Salary
Standardization Law (SSL)to the rank-and-file employees of the BSP. We upheld the
position of petitioner association that the continued operation of Section 15 (c), Article II
of RA 7653 (the New Central Bank Act), which provides that the compensation and wage
structure of employees whose position fall under salary grade 19 and below shall be in
accordance with the rates prescribed under RA 6758 (SSL), constitutes "invidious
discrimination on the 2,994 rank-and-file employees of the [BSP]". Thus, as regards the
exemption from the SSL, we declared that there were no characteristics peculiar only to
the seven GFIs or their rank-and-file so as to justify the exemption from the SSL which
BSP rank-and-file employees were denied. The distinction made by the law is superficial,
arbitrary and not based on substantial distinctions that make real differences between
BSP rank-and-file and the seven other GFIs. 31 TIaCAc
We are of the opinion that the provisions of RA 9443 may not be applied to the present
case as to cure the lack of signature of the Director of Lands and approval by the
Secretary of Agriculture and Natural Resources in Sale Certificate No. 1054.
The Court has explained the nature of equal protection guarantee in this manner:
class and those who do not. 32 (Emphasis and underscoring supplied.)
662
Section 1 of RA 9443 provides:

Section 1. All existing Transfer Certificates of Title and Reconstituted Certificates of Title
duly issued by the Register of Deeds of Cebu Province and/or Cebu City covering any
portion of the Banilad Friar Lands Estate, notwithstanding the lack of signatures and/or
approval of the then Secretary of the Interior (later Secretary of Agriculture and Natural
Resources) and/or the then Chief of the Bureau of Public Lands (later Director of Public
Lands) in the copies of the duly executed Sale Certificates and Assignments of Sales
Certificates, as the case may be, now on file with the Community Environment and Natural
Resources Office (CENRO), Cebu City, are hereby confirmed and declared as valid titles
and the registered owners recognized as absolute owners thereof.
This confirmation and declaration of validity shall in all respects be entitled to like effect
and credit as a decree of registration, binding the land and quieting the title thereto and
shall be conclusive upon and against all persons, including the national government and
all branches thereof; except when, in a given case involving a certificate of title or a
reconstituted certificate of title, there is clear evidence that such certificate of title or
reconstituted certificate of title was obtained through fraud, in which case the solicitor
general or his duly designated representative shall institute the necessary judicial
proceeding to cancel the certificate of title or reconstituted certificate of title as the case
may be, obtained through such fraud. (Emphasis supplied.)
Without ruling on the issue of violation of equal protection guarantee if the curative effect
of RA 9443 is not made applicable to all titled lands of the Piedad Estate, it is clear that
the Manotoks cannot invoke this law to "confirm" and validate their alleged title over Lot
823. It must be stressed that the existence and due issuance of TCT No. 22813 in the
name of Severino Manotok was not established by the evidence on record. There is
likewise no copy of a "duly executed certificate of sale" "on file" with the DENR regional
office. In the absence of an existing certificate of title in the name of the predecessor-ininterest of the Manotoks and certificate of sale on file with the DENR/CENRO, there is
nothing to confirm and validate through the application of RA 9443.
Moreover, RA 9443 expressly excludes from its coverage those cases involving
certificates of title which were shown to have been fraudulently or irregularly issued. As
the reconstitution and remand proceedings in these cases revealed, the Manotoks' title
to the subject friar land, just like the Barques and Manahans, is seriously flawed. The
Court cannot allow them now to invoke the benefit of confirmation and validation of
ownership of friar lands under duly executed documents, which they never had in the first
place. Strict application by the courts of the mandatory provisions of the Friar Lands Act
is justified by the laudable policy behind its enactment to ensure that the lands acquired
by the government would go to the actual occupants and settlers who were given
preference in their distribution. 33 CTHDcE
The dissent reiterates that the existence of Sale Certificate No. 1054 was clearly and
convincingly established by the original of Assignment of Sale Certificate No. 1054 dated
May 4, 1923 between M. Teodoro and Severino Manotok as assignors and Severino
Manotok as assignee (approved by the Director of Lands on June 23, 1923), which is on
file with the LMB, as well as the Deed of Conveyance No. 29204 secured from the
National Archives which is the repository of government and official documents, the
original of Official Receipt No. 675257 dated 20 February 1920 for certified copy of
Assignment of Sale Certificate No. 1054 on Lot 823 and the original of the Provincial
Assessor's declaration of title in Severino Manotok's name for tax purposes on August 9,
1933 assessing him beginning with the year 1933. The dissent further listed some of
those alleged sale certificates, assignment deeds and deeds of conveyance either signed
by the Director of Lands only or unsigned by both Director of Lands and Secretary of
Interior/Natural Resources, gathered by the Manotoks from the LMB. It was stressed that
663
if MO 16-05 is not applied to these huge tracts of land within and outside Metro Manila,
"[H]undreds of thousands, if not millions, of landowners would surely be dispossessed of
their lands in these areas," "a blow to the integrity of our Torrens system and the stability
of land titles in this country."
The Court has thoroughly examined the evidence on record and exhaustively discussed
the merits of the Manotoks' ownership claim over Lot 823, in the light of established
precedents interpreting the provisions of the Friar Lands Act. The dissent even accused
the majority of mistakenly denigrating the records of the National Archives which, under
R.A. No. 9470 enacted on May 21, 2007, is mandated to store and preserve "any public
archive transferred to the National Archives" and tasked with issuing certified true copies
or certifications on public archives and for extracts thereof.
The Friar Lands Act mandated a system of recording all sale contracts to be implemented
by the Director of Lands, which has come to be known as the Friar Lands Sales Registry.
SEC. 6. The title, deeds and instruments of conveyance pertaining to the lands in each
province, when executed and delivered by said grantors to the Government and placed
in the keeping of the Chief of the Bureau of Public Lands, as above provided, shall be by
him transmitted to the register of deeds of each province in which any part of said lands
lies, for registration in accordance with law. But before transmitting the title, deeds, and
instruments of conveyance in this section mentioned to the register of deeds of each
province for registration, the Chief of the Bureau of Public Lands shall record all such
deeds and instruments at length in one or more books to be provided by him for that
purpose and retained in the Bureau of Public Lands, when duly certified by him shall be
received in all courts of the Philippine Islands as sufficient evidence of the contents of the
instrument so recorded whenever it is not practicable to produce the originals in court.
(Section 1, Act No. 1287).
It is thus the primary duty of the Chief of the Bureau of Public Lands to record all these
deeds and instruments in sales registry books which shall be retained in the Bureau of
Public Lands. Unfortunately, the LMB failed to produce the sales registry book in court,
which could have clearly shown the names of claimants, the particular lots and areas
applied for, the sale certificates issued and other pertinent information on the sale of friar
lands within the Piedad Estate. Witness Teresita J. Reyes, a retired Assistant Chief of the
Records Management Division (RMD), LMB who was presented by the Manahans,
testified that when the LMB was decentralized, the sales registry books pertaining to friar
lands were supposedly turned over to the regional offices. These consisted of copies of
the appropriate pages of the sales registry books in the LMB RMD main office which has
an inventory of lots subject of deeds of conveyance and sales certificates. However,
Reyes said that the sales registry book itself is no longer with the RMD. On the other
hand, the alleged affidavit of Secretary Defensor dated November 11, 2010 states that
MO 16-05 was intended to address situations when deeds of conveyance lacked the
signature of the Secretary of Agriculture and Commerce, or such deeds or records from
which the Secretary's signature or approval may be verified were lost or unavailable.
Whether the friar lands registry book is still available in the LMB or properly turned over
to the regional offices remains unclear. With the statutorily prescribed record-keeping of
sales of friar lands apparently in disarray, it behooves on the courts to be more judicious
in settling conflicting claims over friar lands. Titles with serious flaws must still be carefully
scrutinized in each case. Thus, we find that the approach in Alonso remains as the more
rational and prudent course than the wholesale ratification introduced by MO 16-05.
The prospect of litigants losing friar lands they have possessed for years or decades had
never deterred courts from upholding the stringent requirements of the law for a valid
acquisition of these lands. The court's duty is to apply the law. Petitioners' concern for
other landowners which may be similarly affected by our ruling is, without doubt, a
664
legitimate one. The remedy though lies elsewhere in the legislature, as what R.A. 9443
sought to rectify. TDcCIS
WHEREFORE, the present motions for reconsideration are all hereby DENIED with
FINALITY. The motions for oral arguments and further reception of evidence are likewise
DENIED.
Let entry of judgment be made in due course.
SO ORDERED.
Corona, C.J., Leonardo-de Castro, Peralta, Bersamin, Perez and Mendoza, JJ., concur.
Carpio, J., See Dissenting Opinion.
Velasco, Jr., Brion, Abad, Sereno, Reyes and Perlas-Bernabe, JJ., join the Dissent of J.
Carpio.
Del Castillo, J., I certify that J. Del Castillo sent his vote concurring with Justice Villarama.
||| (Manotok, IV v. Heirs of Barque, G.R. Nos. 162335 & 162605 (Resolution), [March 6,
2012], 683 PHIL 448-508)
9. GARCIA VS. DRILON 699 SCRA 667 (2013)
EN BANC
[G.R. No. 179267. June 25, 2013.]
JESUS C. GARCIA, petitioner, vs. THE HONORABLE RAY ALAN T. DRILON, Presiding
Judge, Regional Trial Court-Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for
herself and in behalf of minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE
ANTHONE, all surnamed GARCIA, respondents.
DECISION
PERLAS-BERNABE, J p:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos
or 93 percent of a total population of 93.3 million adhering to the teachings of Jesus
Christ. 1 Yet, the admonition for husbands to love their wives as their own bodies just as
Christ loved the church and gave himself up for her 2 failed to prevent, or even to curb,
the pervasiveness of violence against Filipino women. The National Commission on the
Role of Filipino Women (NCRFW) reported that, for the years 2000-2003, "female
violence comprised more than 90% of all forms of abuse and violence and more than
90% of these reported cases were committed by the women's intimate partners such as
their husbands and live-in partners." 3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups,
Congress enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence
Against Women and Their Children, Providing for Protective Measures for Victims,
Prescribing Penalties Therefor, and for Other Purposes." It took effect on March 27, 2004.
4 aHDTAI
R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against
women and their children (VAWC) perpetrated by women's intimate partners, i.e.,
husband; former husband; or any person who has or had a sexual or dating relationship,
665
or with whom the woman has a common child. 5 The law provides for protection orders
from the barangay and the courts to prevent the commission of further acts of VAWC;
and outlines the duties and responsibilities of barangay officials, law enforcers,
prosecutors and court personnel, social workers, health care providers, and other local
government officials in responding to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A. 9262 as being
violative of the equal protection and due process clauses, and an undue delegation of
judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in
behalf of her minor children, a verified petition 6 (Civil Case No. 06-797) before the
Regional Trial Court (RTC) of Bacolod City for the issuance of a Temporary Protection
Order (TPO) against her husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262.
She claimed to be a victim of physical abuse; emotional, psychological, and economic
violence as a result of marital infidelity on the part of petitioner, with threats of deprivation
of custody of her children and of financial support. 7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years old and the former
was eleven years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17
years old, who is the natural child of petitioner but whom private respondent adopted;
Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old. 8
Private respondent described herself as a dutiful and faithful wife, whose life revolved
around her husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is
dominant, controlling, and demands absolute obedience from his wife and children. He
forbade private respondent to pray, and deliberately isolated her from her friends. When
she took up law, and even when she was already working part time at a law office,
petitioner trivialized her ambitions and prevailed upon her to just stay at home. He was
often jealous of the fact that his attractive wife still catches the eye of some men, at one
point threatening that he would have any man eyeing her killed. 9
Things turned for the worse when petitioner took up an affair with a bank manager of
Robinson's Bank, Bacolod City, who is the godmother of one of their sons. Petitioner
admitted to the affair when private respondent confronted him about it in 2004. He even
boasted to the household help about his sexual relations with said bank manager.
Petitioner told private respondent, though, that he was just using the woman because of
their accounts with the bank. 10 EHTIcD
Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on
both arms and shook her with such force that caused bruises and hematoma. At another
time, petitioner hit private respondent forcefully on the lips that caused some bleeding.
Petitioner sometimes turned his ire on their daughter, Jo-Ann, who had seen the text
messages he sent to his paramour and whom he blamed for squealing on him. He beat
Jo-Ann on the chest and slapped her many times. When private respondent decided to
leave petitioner, Jo-Ann begged her mother to stay for fear that if the latter leaves,
petitioner would beat her up. Even the small boys are aware of private respondent's
sufferings. Their 6-year-old son said that when he grows up, he would beat up his father
because of his cruelty to private respondent. 11
All the emotional and psychological turmoil drove private respondent to the brink of
despair. On December 17, 2005, while at home, she attempted suicide by cutting her
wrist. She was found by her son bleeding on the floor. Petitioner simply fled the house
instead of taking her to the hospital. Private respondent was hospitalized for about seven
666
(7) days in which time petitioner never bothered to visit, nor apologized or showed pity on
her. Since then, private respondent has been undergoing therapy almost every week and
is taking anti-depressant medications. 12
When private respondent informed the management of Robinson's Bank that she intends
to file charges against the bank manager, petitioner got angry with her for jeopardizing
the manager's job. He then packed his things and told private respondent that he was
leaving her for good. He even told private respondent's mother, who lives with them in
the family home, that private respondent should just accept his extramarital affair since
he is not cohabiting with his paramour and has not sired a child with her. 13
Private respondent is determined to separate from petitioner but she is afraid that he
would take her children from her and deprive her of financial support. Petitioner had
previously warned her that if she goes on a legal battle with him, she would not get a
single centavo. 14
Petitioner controls the family businesses involving mostly the construction of deep wells.
He is the President of three corporations 326 Realty Holdings, Inc., Negros Rotadrill
Corporation, and J-Bros Trading Corporation of which he and private respondent are
both stockholders. In contrast to the absolute control of petitioner over said corporations,
private respondent merely draws a monthly salary of P20,000.00 from one corporation
only, the Negros Rotadrill Corporation. Household expenses amounting to not less than
P200,000.00 a month are paid for by private respondent through the use of credit cards,
which, in turn, are paid by the same corporation together with the bills for utilities. 15
cDCIHT
On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros
Rotadrill Corporation, and enjoys unlimited cash advances and other benefits in hundreds
of thousands of pesos from the corporations. 16 After private respondent confronted him
about the affair, petitioner forbade her to hold office at JBTC Building, Mandalagan, where
all the businesses of the corporations are conducted, thereby depriving her of access to
full information about said businesses. Until the filing of the petition a quo, petitioner has
not given private respondent an accounting of the businesses the value of which she had
helped raise to millions of pesos. 17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of violence against the
private respondent and her children exists or is about to recur, the RTC issued a TPO 18
on March 24, 2006 effective for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal dwelling or family
home within 24 hours from receipt of the Temporary Restraining Order and if he refuses,
ordering that he be removed by police officers from the conjugal dwelling; this order is
enforceable notwithstanding that the house is under the name of 236 Realty Holdings,
Inc. (Republic Act No. 9262 states "regardless of ownership"), this is to allow the
Petitioner (private respondent herein) to enter the conjugal dwelling without any danger
from the Respondent. IcADSE
After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner shall
be assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March
2006 because of the danger that the Respondent will attempt to take her children from
her when he arrives from Manila and finds out about this suit.
667
b) To stay away from the petitioner and her children, mother and all her household help
and driver from a distance of 1,000 meters, and shall not enter the gate of the subdivision
where the Petitioner may be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner,
directly or indirectly, or through other persons, or contact directly or indirectly her children,
mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation
rights to the children may be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and
ordering the Philippine National Police Firearms and Explosives Unit and the Provincial
Director of the PNP to cancel all the Respondent's firearm licenses. He should also be
ordered to surrender any unlicensed firearms in his possession or control.
e) To pay full financial support for the Petitioner and the children, including rental of a
house for them, and educational and medical expenses.
f) Not to dissipate the conjugal business. aCTHEA
g) To render an accounting of all advances, benefits, bonuses and other cash he received
from all the corporations from 1 January 2006 up to 31 March 2006, which himself and
as President of the corporations and his Comptroller, must submit to the Court not later
than 2 April 2006. Thereafter, an accounting of all these funds shall be reported to the
court by the Comptroller, copy furnished to the Petitioner, every 15 days of the month,
under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the Petitioner
sues she will not get a single centavo, the Respondent is ordered to put up a BOND TO
KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.
On April 24, 2006, upon motion 19 of private respondent, the trial court issued an
amended TPO, 20 effective for thirty (30) days, which included the following additional
provisions:
i) The petitioners (private respondents herein) are given the continued use of the Nissan
Patrol and the Starex Van which they are using in Negros Occidental.
j) The petitioners are given the continued use and occupation of the house in Paraaque,
the continued use of the Starex van in Metro Manila, whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient
sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred
Fifty Thousand Pesos (Php150,000.00) per month plus rental expenses of Fifty Thousand
Pesos (Php50,000.00) per month until the matter of support could be finally resolved.
cAaDCE
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO 21 seeking the denial of the renewal of the TPO on the
grounds that it did not (1) comply with the three-day notice rule, and (2) contain a notice
of hearing. He further asked that the TPO be modified by (1) removing one vehicle used
by private respondent and returning the same to its rightful owner, the J-Bros Trading
Corporation, and (2) cancelling or reducing the amount of the bond from P5,000,000.00
to a more manageable level at P100,000.00.
668
Subsequently, on May 23, 2006, petitioner moved 22 for the modification of the TPO to
allow him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the
following modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes and other personal belongings
of Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24
hours from receipt of the Temporary Protection Order by his counsel, otherwise be
declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment in the conjugal
house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt
of the Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to
remove Respondent from the conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he cannot return until 48 hours after
the petitioners have left, so that the petitioner Rosalie and her representatives can remove
things from the conjugal home and make an inventory of the household furniture,
equipment and other things in the conjugal home, which shall be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from receipt
of the Temporary Protection Order by his counsel, otherwise be declared in indirect
contempt of Court; DaHSIT
e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of
Court within 24 hours from receipt of the Temporary Protection Order by his counsel;
f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses. 23
Claiming that petitioner continued to deprive them of financial support; failed to faithfully
comply with the TPO; and committed new acts of harassment against her and their
children, private respondent filed another application 24 for the issuance of a TPO ex
parte. She alleged inter alia that petitioner contrived a replevin suit against himself by JBros Trading, Inc., of which the latter was purportedly no longer president, with the end
in view of recovering the Nissan Patrol and Starex Van used by private respondent and
the children. A writ of replevin was served upon private respondent by a group of six or
seven policemen with long firearms that scared the two small boys, Jessie Anthone and
Joseph Eduard. 25
While Joseph Eduard, then three years old, was driven to school, two men allegedly
attempted to kidnap him, which incident traumatized the boy resulting in his refusal to go
back to school. On another occasion, petitioner allegedly grabbed their daughter, Jo-Ann,
by the arm and threatened her. 26 The incident was reported to the police, and Jo-Ann
subsequently filed a criminal complaint against her father for violation of R.A. 7610, also
known as the "Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids
working at the conjugal home of a complaint for kidnapping and illegal detention against
private respondent. This came about after private respondent, armed with a TPO, went
to said home to get her and her children's belongings. Finding some of her things inside
669
a housemaid's (Sheryl Jamola) bag in the maids' room, private respondent filed a case
for qualified theft against Jamola. 27 CDTHSI
On August 23, 2006, the RTC issued a TPO, 28 effective for thirty (30) days, which reads
as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or through another,
acts of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or otherwise
communicating in any form with the offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends, relatives, employees or
agents, from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's
three brothers, her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo
Hontiveros, laundrywoman Mercedita Bornales, security guard Darwin Gayona and the
petitioner's other household helpers from a distance of 1,000 meters, and shall not enter
the gate of the subdivision where the Petitioners are temporarily residing, as well as from
the schools of the three children; Furthermore, that respondent shall not contact the
schools of the children directly or indirectly in any manner including, ostensibly to pay for
their tuition or other fees directly, otherwise he will have access to the children through
the schools and the TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK
to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month and
Php50,000.00 for rental for the period from August 6 to September 6, 2006; and support
in arrears from March 2006 to August 2006 the total amount of Php1,312,000.00; CIaDTE
6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00
and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a
Starex van with Plate No. FFD 991 and should the respondent fail to deliver said vehicles,
respondent is ordered to provide the petitioner another vehicle which is the one taken by
J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the
conjugal assets, or those real properties in the name of Jesus Chua Garcia only and those
in which the conjugal partnership of gains of the Petitioner Rosalie J. Garcia and
respondent have an interest in, especially the conjugal home located in No. 14, Pitimini
St., Capitolville Subdivision, Bacolod City, and other properties which are conjugal assets
or those in which the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the
respondent have an interest in and listed in Annexes "I," "I-1," and "I-2," including
properties covered by TCT Nos. T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served
a copy of this TEMPORARY PROTECTION ORDER and are ordered not to allow the
transfer, sale, encumbrance or disposition of these above-cited properties to any person,
entity or corporation without the personal presence of petitioner Rosalie J. Garcia, who
shall affix her signature in the presence of the Register of Deeds, due to the fear of
petitioner Rosalie that her signature will be forged in order to effect the encumbrance or
sale of these properties to defraud her or the conjugal partnership of gains.
670
In its Order 29 dated September 26, 2006, the trial court extended the aforequoted TPO
for another ten (10) days, and gave petitioner a period of five (5) days within which to
show cause why the TPO should not be renewed, extended, or modified. Upon
petitioner's manifestation, 30 however, that he has not received a copy of private
respondent's motion to modify/renew the TPO, the trial court directed in its Order 31 dated
October 6, 2006 that petitioner be furnished a copy of said motion. Nonetheless, an Order
32 dated a day earlier, October 5, had already been issued renewing the TPO dated
August 23, 2006. The pertinent portion is quoted hereunder: AacDHE
xxx xxx xxx
. . . it appearing further that the hearing could not yet be finally terminated, the Temporary
Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty
(30) days and continuously extended and renewed for thirty (30) days, after each
expiration, until further orders, and subject to such modifications as may be ordered by
the court. STHAaD
After having received a copy of the foregoing Order, petitioner no longer submitted the
required comment to private respondent's motion for renewal of the TPO arguing that it
would only be an "exercise in futility." 33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals
(CA) a petition 34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction
and temporary restraining order, challenging (1) the constitutionality of R.A. 9262 for
being violative of the due process and the equal protection clauses, and (2) the validity of
the modified TPO issued in the civil case for being "an unwanted product of an invalid
law."
On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order 35
(TRO) against the enforcement of the TPO, the amended TPOs and other orders
pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court dismissed 36 the
petition for failure of petitioner to raise the constitutional issue in his pleadings before the
trial court in the civil case, which is clothed with jurisdiction to resolve the same. Secondly,
the challenge to the validity of R.A. 9262 through a petition for prohibition seeking to annul
the protection orders issued by the trial court constituted a collateral attack on said law.
His motion for reconsideration of the foregoing Decision having been denied in the
Resolution 37 dated August 14, 2007, petitioner is now before us alleging that
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY
THAT THE ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST
OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK
ON THE VALIDITY OF THE LAW. EcHIAC
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO
CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF
THE EQUAL PROTECTION CLAUSE.
III.
671
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT

R.A. 9262 RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE
CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES
VIOLENCE TO THE POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC
SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262
AS INVALID AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
DELEGATION OF JUDICIAL POWER TO THE BARANGAY OFFICIALS. 38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the constitutionality
of R.A. 9262, we shall first tackle the propriety of the dismissal by the appellate court of
the petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner. EDIHSC
As a general rule, the question of constitutionality must be raised at the earliest
opportunity so that if not raised in the pleadings, ordinarily it may not be raised in the trial,
and if not raised in the trial court, it will not be considered on appeal. 39 Courts will not
anticipate a question of constitutional law in advance of the necessity of deciding it. 40
In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of
Bacolod City, petitioner argues that the Family Court has limited authority and jurisdiction
that is "inadequate to tackle the complex issue of constitutionality." 41
We disagree.
Family Courts have authority
and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special courts, of the same level
as Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of
1997," family courts have exclusive original jurisdiction to hear and decide cases of
domestic violence against women and children. 42 In accordance with said law, the
Supreme Court designated from among the branches of the Regional Trial Courts at least
one Family Court in each of several key cities identified. 43 To achieve harmony with the
first mentioned law, Section 7 of R.A. 9262 now provides that Regional Trial Courts
designated as Family Courts shall have original and exclusive jurisdiction over cases of
VAWC defined under the latter law, viz.:
SEC. 7. Venue. The Regional Trial Court designated as a Family Court shall have
original and exclusive jurisdiction over cases of violence against women and their children
under this law. In the absence of such court in the place where the offense was
committed, the case shall be filed in the Regional Trial Court where the crime or any of
its elements was committed at the option of the complainant. (Emphasis supplied)
HIAESC
Inspite of its designation as a family court, the RTC of Bacolod City remains possessed
of authority as a court of general original jurisdiction to pass upon all kinds of cases
whether civil, criminal, special proceedings, land registration, guardianship,
naturalization, admiralty or insolvency. 44 It is settled that RTCs have jurisdiction to
672
resolve the constitutionality of a statute, 45 "this authority being embraced in the general
definition of the judicial power to determine what are the valid and binding laws by the
criterion of their conformity to the fundamental law." 46 The Constitution vests the power
of judicial review or the power to declare the constitutionality or validity of a law, treaty,
international or executive agreement, presidential decree, order, instruction, ordinance,
or regulation not only in this Court, but in all RTCs. 47 We said in J.M. Tuason and Co.,
Inc. v. CA 48 that, "[p]lainly the Constitution contemplates that the inferior courts should
have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of
appellate review of final judgments of inferior courts in cases where such constitutionality
happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in part as
follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question. aADSIc
xxx xxx xxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262
could have been raised at the earliest opportunity in his Opposition to the petition for
protection order before the RTC of Bacolod City, which had jurisdiction to determine the
same, subject to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their
Children, lays down a new kind of procedure requiring the respondent to file an opposition
to the petition and not an answer. 49 Thus:
SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the
petition which he himself shall verify. It must be accompanied by the affidavits of
witnesses and shall show cause why a temporary or permanent protection order should
not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or thirdparty complaint, but any cause of action which could be the subject thereof may be
litigated in a separate civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since a counterclaim,
cross-claim and third-party complaint are to be excluded from the opposition, the issue of
constitutionality cannot likewise be raised therein. A counterclaim is defined as any claim
for money or other relief which a defending party may have against an opposing party. 50
A cross-claim, on the other hand, is any claim by one party against a co-party arising out
of the transaction or occurrence that is the subject matter either of the original action or
of a counterclaim therein. 51 Finally, a third-party complaint is a claim that a defending
party may, with leave of court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.
52 As pointed out by Justice Teresita J. Leonardo-de Castro, the unconstitutionality of a
statute is not a cause of action that could be the subject of a counterclaim, cross-claim or
a third-party complaint. Therefore, it is not prohibited from being raised in the opposition
in view of the familiar maxim expressio unius est exclusio alterius. IHcSCA
673
Moreover, it cannot be denied that this issue affects the resolution of the case a quo
because the right of private respondent to a protection order is founded solely on the very
statute the validity of which is being attacked 53 by petitioner who has sustained, or will
sustain, direct injury as a result of its enforcement. The alleged unconstitutionality of R.A.
9262 is, for all intents and purposes, a valid cause for the non-issuance of a protection
order.
That the proceedings in Civil Case No. 06-797 are summary in nature should not have
deterred petitioner from raising the same in his Opposition. The question relative to the
constitutionality of a statute is one of law which does not need to be supported by
evidence. 54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless allows
the conduct of a hearing to determine legal issues, among others, viz.:
SEC. 25. Order for further hearing. In case the court determines the need for further
hearing, it may issue an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and will be
presented;
(d) Names of witnesses who will be ordered to present their direct testimonies in the form
of affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall be done in one
day, to the extent possible, within the 30-day period of the effectivity of the temporary
protection order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection
order issued is due to expire, the trial court may extend or renew the said order for a
period of thirty (30) days each time until final judgment is rendered. It may likewise modify
the extended or renewed temporary protection order as may be necessary to meet the
needs of the parties. With the private respondent given ample protection, petitioner could
proceed to litigate the constitutional issues, without necessarily running afoul of the very
purpose for the adoption of the rules on summary procedure. DcAaSI
In view of all the foregoing, the appellate court correctly dismissed the petition for
prohibition with prayer for injunction and temporary restraining order (CA-G.R. CEB-SP.
No. 01698). Petitioner may have proceeded upon an honest belief that if he finds succor
in a superior court, he could be granted an injunctive relief. However, Section 22 (j) of
A.M. No. 04-10-11-SC expressly disallows the filing of a petition for certiorari, mandamus
or prohibition against any interlocutory order issued by the trial court. Hence, the 60-day
TRO issued by the appellate court in this case against the enforcement of the TPO, the
amended TPOs and other orders pursuant thereto was improper, and it effectively
hindered the case from taking its normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment is
prohibited. Moreover, if the appeal of a judgment granting permanent protection shall not
stay its enforcement, 55 with more reason that a TPO, which is valid only for thirty (30)
days at a time, 56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself
entitle a litigant to have the same enjoined. 57 In Younger v. Harris, Jr., 58 the Supreme
Court of the United States declared, thus:
674
Federal injunctions against state criminal statutes, either in their entirety or with respect
to their separate and distinct prohibitions, are not to be granted as a matter of course,
even if such statutes are unconstitutional. No citizen or member of the community is
immune from prosecution, in good faith, for his alleged criminal acts. The imminence of
such a prosecution even though alleged to be unauthorized and, hence, unlawful is not
alone ground for relief in equity which exerts its extraordinary powers only to prevent
irreparable injury to the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status quo until the trial court hears
fully the merits of the case. It bears stressing, however, that protection orders are granted
ex parte so as to protect women and their children from acts of violence. To issue an
injunction against such orders will defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our obligation to
determine novel issues, or issues of first impression, with far-reaching implications. We
have, time and again, discharged our solemn duty as final arbiter of constitutional issues,
and with more reason now, in view of private respondent's plea in her Comment 59 to the
instant Petition that we should put the challenge to the constitutionality of R.A. 9262 to
rest. And so we shall.
Intent of Congress in
enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and
child abuse, which could very well be committed by either the husband or the wife, gender
alone is not enough basis to deprive the husband/father of the remedies under the law.
60 IHTaCE
A perusal of the deliberations of Congress on Senate Bill No. 2723, 61 which became
R.A. 9262, reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known
as Senator Loi Estrada), had originally proposed what she called a "synthesized
measure" 62 an amalgamation of two measures, namely, the "Anti-Domestic Violence
Act" and the "Anti-Abuse of Women in Intimate Relationships Act" 63 providing
protection to "all family members, leaving no one in isolation" but at the same time giving
special attention to women as the "usual victims" of violence and abuse, 64 nonetheless,
it was eventually agreed that men be denied protection under the same measure. We
quote pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's
groups have expressed concerns and relayed these concerns to me that if we are to
include domestic violence apart from against women as well as other members of the
household, including children or the husband, they fear that this would weaken the efforts
to address domestic violence of which the main victims or the bulk of the victims really
are the wives, the spouses or the female partners in a relationship. We would like to place
that on record. How does the good Senator respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call themselves
"WIIR" Women in Intimate Relationship. They do not want to include men in this domestic
violence. But plenty of men are also being abused by women. I am playing safe so I
placed here members of the family, prescribing penalties therefor and providing protective
measures for victims. This includes the men, children, live-in, common-law wives, and
those related with the family. 65
xxx xxx xxx
675
Wednesday, January 14, 2004

xxx xxx xxx
The President Pro Tempore. . . . SDITAC
Also, may the Chair remind the group that there was the discussion whether to limit this
to women and not to families which was the issue of the AWIR group. The understanding
that I have is that we would be having a broader scope rather than just women, if I
remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the interpellation
period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get
me wrong. However, I believe that there is a need to protect women's rights especially in
the domestic environment.
As I said earlier, there are nameless, countless, voiceless women who have not had the
opportunity to file a case against their spouses, their live-in partners after years, if not
decade, of battery and abuse. If we broaden the scope to include even the men, assuming
they can at all be abused by the women or their spouses, then it would not equalize the
already difficult situation for women, Mr. President. aIcDCA
I think that the sponsor, based on our earlier conversations, concurs with this position. I
am sure that the men in this Chamber who love their women in their lives so dearly will
agree with this representation. Whether we like it or not, it is an unequal world. Whether
we like it or not, no matter how empowered the women are, we are not given equal
opportunities especially in the domestic environment where the macho Filipino man would
always feel that he is stronger, more superior to the Filipino woman.
xxx xxx xxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee came up with this
bill because the family members have been included in this proposed measure since the
other members of the family other than women are also possible victims of violence. While
women are most likely the intended victims, one reason incidentally why the measure
focuses on women, the fact remains that in some relatively few cases, men also stand to
be victimized and that children are almost always the helpless victims of violence. I am
worried that there may not be enough protection extended to other family members
particularly children who are excluded. Although Republic Act No. 7610, for instance,
more or less, addresses the special needs of abused children. The same law is
inadequate. Protection orders for one are not available in said law.
I am aware that some groups are apprehensive about granting the same protection to
men, fearing that they may use this law to justify their abusive behavior against women.
However, we should also recognize that there are established procedures and standards
in our courts which give credence to evidentiary support and cannot just arbitrarily and
whimsically entertain baseless complaints. cSCADE
676
Mr. President, this measure is intended to harmonize family relations and to protect the
family as the basic social institution. Though I recognize the unequal power relations
between men and women in our society, I believe we have an obligation to uphold
inherent rights and dignity of both husband and wife and their immediate family members,
particularly children.
While I prefer to focus mainly on women, I was compelled to include other family members
as a critical input arrived at after a series of consultations/meetings with various NGOs,
experts, sports groups and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda
would be removing the "men and children" in this particular bill and focus specifically on
women alone. That will be the net effect of that proposed amendment. Hearing the
rationale mentioned by the distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am
not sure now whether she is inclined to accept the proposed amendment of Senator
Legarda.
I am willing to wait whether she is accepting this or not because if she is going to accept
this, I will propose an amendment to the amendment rather than object to the amendment,
Mr. President. EcATDH
xxx xxx xxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxx xxx xxx
Senator Sotto. . . . May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used by the
distinguished proponent of the amendment. As a matter of fact, I tend to agree. Kung may
maaabuso, mas malamang iyong babae kaysa sa lalake. At saka iyong mga lalake,
puwede na talagang magulpi iyan. Okey lang iyan. But I cannot agree that we remove the
children from this particular measure.
So, if I may propose an amendment
The President Pro Tempore. To the amendment.
Senator Sotto. more than the women, the children are very much abused. As a matter
of fact, it is not limited to minors. The abuse is not limited to seven, six, 5-year-old children.
677
I have seen 14, 15-year-old children being abused by their fathers, even by their mothers.
And it breaks my heart to find out about these things.
Because of the inadequate existing law on abuse of children, this particular measure will
update that. It will enhance and hopefully prevent the abuse of children and not only
women. DEScaT
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of the men in
the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being none, the
amendment, as amended, is approved. 66
It is settled that courts are not concerned with the wisdom, justice, policy, or expediency
of a statute. 67 Hence, we dare not venture into the real motivations and wisdom of the
members of Congress in limiting the protection against violence and abuse under R.A.
9262 to women and children only. No proper challenge on said grounds may be
entertained in this proceeding. Congress has made its choice and it is not our prerogative
to supplant this judgment. The choice may be perceived as erroneous but even then, the
remedy against it is to seek its amendment or repeal by the legislative. By the principle of
separation of powers, it is the legislative that determines the necessity, adequacy, wisdom
and expediency of any law. 68 We only step in when there is a violation of the
Constitution. However, none was sufficiently shown in this case.
R.A. 9262 does not violate
the guaranty of equal protection
of the laws.
Equal protection simply requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. The oft-repeated
disquisition in the early case of Victoriano v. Elizalde Rope Workers' Union 69 is
instructive: cSICHD
The guaranty of equal protection of the laws is not a guaranty of equality in the application
of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to
avoid the constitutional prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not forbid discrimination
as to things that are different. It does not prohibit legislation which is limited either in the
object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the grouping
of things in speculation or practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The very idea of classification
678
is that of inequality, so that it goes without saying that the mere fact of inequality in no
on substantial distinctions which make for real differences; that it must be germane to the
apply equally to each member of the class. This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable foundation or rational
basis and is not palpably arbitrary. (Emphasis supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based
on a valid classification as shall hereinafter be discussed and, as such, did not violate the
equal protection clause by favoring women over men as victims of violence and abuse to
whom the State extends its protection. IDAaCc
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that women are more
likely than men to be victims of violence; and the widespread gender bias and prejudice
against women all make for real differences justifying the classification under the law. As
Justice McIntyre succinctly states, "the accommodation of differences . . . is the essence
of true equality." 70
A. Unequal power relationship
between men and women
According to the Philippine Commission on Women (the National Machinery for Gender
Equality and Women's Empowerment), violence against women (VAW) is deemed to be
closely linked with the unequal power relationship between women and men otherwise
known as "gender-based violence". Societal norms and traditions dictate people to think
men are the leaders, pursuers, providers, and take on dominant roles in society while
women are nurturers, men's companions and supporters, and take on subordinate roles
in society. This perception leads to men gaining more power over women. With power
comes the need to control to retain that power. And VAW is a form of men's expression
of controlling women to retain power. 71 HSaIET
The United Nations, which has long recognized VAW as a human rights issue, passed its
Resolution 48/104 on the Declaration on Elimination of Violence Against Women on
December 20, 1993 stating that "violence against women is a manifestation of historically
unequal power relations between men and women, which have led to domination over
and discrimination against women by men and to the prevention of the full advancement
of women, and that violence against women is one of the crucial social mechanisms by
which women are forced into subordinate positions, compared with men." 72
Then Chief Justice Reynato S. Puno traced the historical and social context of genderbased violence and developments in advocacies to eradicate VAW, in his remarks
delivered during the Joint Launching of R.A. 9262 and its Implementing Rules last
October 27, 2004, the pertinent portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence against women. The
patriarch of a family was accorded the right to use force on members of the family under
his control. I quote the early studies:
Traditions subordinating women have a long history rooted in patriarchy the
institutional rule of men. Women were seen in virtually all societies to be naturally inferior
both physically and intellectually. In ancient Western societies, women whether slave,
concubine or wife, were under the authority of men. In law, they were treated as property.
679
The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife
if she endangered his property right over her. Judaism, Christianity and other religions
oriented towards the patriarchal family strengthened the male dominated structure of
society.
English feudal law reinforced the tradition of male control over women. Even the eminent
Blackstone has been quoted in his commentaries as saying husband and wife were one
and that one was the husband. However, in the late 1500s and through the entire 1600s,
English common law began to limit the right of husbands to chastise their wives. Thus,
common law developed the rule of thumb, which allowed husbands to beat their wives
with a rod or stick no thicker than their thumb. TcDAHS
In the later part of the 19th century, legal recognition of these rights to chastise wives or
inflict corporeal punishment ceased. Even then, the preservation of the family was given
more importance than preventing violence to women.
The metamorphosis of the law on violence in the United States followed that of the English
common law. In 1871, the Supreme Court of Alabama became the first appellate court to
strike down the common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair,
choke her, spit in her face or kick her about the floor, or to inflict upon her like indignities,
is not now acknowledged by our law. . . In person, the wife is entitled to the same
protection of the law that the husband can invoke for himself.
As time marched on, the women's advocacy movement became more organized. The
temperance leagues initiated it. These leagues had a simple focus. They considered the
evils of alcoholism as the root cause of wife abuse. Hence, they demonstrated and
picketed saloons, bars and their husbands' other watering holes. Soon, however, their
crusade was joined by suffragette movements, expanding the liberation movement's
agenda. They fought for women's right to vote, to own property, and more. Since then,
the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence to the
public gaze. They succeeded in transforming the issue into an important public concern.
No less than the United States Supreme Court, in 1992 case Planned Parenthood v.
Casey, noted:
In an average 12-month period in this country, approximately two million women are the
victims of severe assaults by their male partners. In a 1985 survey, women reported that
nearly one of every eight husbands had assaulted their wives during the past year. The
[American Medical Association] views these figures as "marked underestimates,"
because the nature of these incidents discourages women from reporting them, and
because surveys typically exclude the very poor, those who do not speak English well,
and women who are homeless or in institutions or hospitals when the survey is conducted.
According to the AMA, "researchers on family violence agree that the true incidence of
partner violence is probably double the above estimates; or four million severely
assaulted women per year." cIDHSC
Studies on prevalence suggest that from one-fifth to one-third of all women will be
physically assaulted by a partner or ex-partner during their lifetime. . . Thus on an average
day in the United States, nearly 11,000 women are severely assaulted by their male
partners. Many of these incidents involve sexual assault. . . In families where wife beating
takes place, moreover, child abuse is often present as well.
680
Other studies fill in the rest of this troubling picture. Physical violence is only the most
visible form of abuse. Psychological abuse, particularly forced social and economic
isolation of women, is also common.
Many victims of domestic violence remain with their abusers, perhaps because they
perceive no superior alternative . . . Many abused women who find temporary refuge in
shelters return to their husbands, in large part because they have no other source of
income. . . Returning to one's abuser can be dangerous. Recent Federal Bureau of
Investigation statistics disclose that 8.8 percent of all homicide victims in the United States
are killed by their spouses . . . Thirty percent of female homicide victims are killed by their
male partners. CHTcSE
Finally in 1994, the United States Congress enacted the Violence Against Women Act.
In the International front, the women's struggle for equality was no less successful. The
United States Charter and the Universal Declaration of Human Rights affirmed the
equality of all human beings. In 1979, the UN General Assembly adopted the landmark
Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).
In 1993, the UN General Assembly also adopted the Declaration on the Elimination of
Violence Against Women. World conferences on the role and rights of women have been
regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The UN itself established
a Commission on the Status of Women. TEaADS
The Philippines has been in cadence with the half and full steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the
State to recognize the role of women in nation building and to ensure the fundamental
equality before the law of women and men. Our Senate has ratified the CEDAW as well
as the Convention on the Rights of the Child and its two protocols. To cap it all, Congress,
on March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act Defining Violence Against
Women and Their Children, Providing for Protective Measures for Victims, Prescribing
Penalties therefor and for other Purposes." (Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official statistics on violence
against women and children show that
. . . physical injuries had the highest number of cases at 5,058 in 2002 representing
55.63% of total cases reported (9,903). And for the first semester of 2003, there were
2,381 reported cases out of 4,354 cases which represent 54.31%. . . . (T)he total number
of women in especially difficult circumstances served by the Department of Social Welfare
and Development (DSWD) for the year 2002, there are 1,417 physically
abused/maltreated cases out of the total of 5,608 cases. . . . (T)here are 1,091 DSWD
cases out of a total number of 3,471 cases for the first semester of 2003. Female violence
comprised more than 90% of all forms of abuse and violence and more than 90% of these
reported cases were committed by the women's intimate partners such as their husbands
and live-in partners. 73
Recently, the Philippine Commission on Women presented comparative statistics on
violence against women across an eight-year period from 2004 to August of 2011 with
violations under R.A. 9262 ranking first among the different VAW categories since its
implementation in 2004, 74 thus: ADECcI
Table 1. Annual Comparative Statistics on Violence Against Women, 2004-2011*
Reported
2004
681
2005
2006
2007
2008
2009
2010
2011
Cases
Rape
997
927
659
837
811
770
1,042
832
Incestuous Rape
38
46
26
22
28
27
19
23
Attempted Rape
194
148
185
147
204
167
268
201
Acts of
580
536
382
358
445
485
745
625
Lasciviousness
682
Physical
3,553
2,335
1,892
1,505
1,307
1,498
2,018
1,588
Injuries
Sexual
53
37
38
46
18
54
83
63
Harassment
RA 9262
218
924
1,269
2,387
3,599
5,285
9,974
9,021
Threats
319
223
199
182
220
208
374
683
213
Seduction
62
19
29
30
19
19
25
15
Concubinage
121
102
93
109
109
99
158
128
RA 9208
17
11
16
24
34
152
190
62
Abduction/
29
16
34
23
28
18
25
22
Kidnapping
Unjust Vexation
90
50
59
59
83
703
183
155
684
Total
6,271
5,374
4,881
5,729
6,905
9,485
15,104
12,948
=====
======
======
======
======
======
======
======
*2011 report covers only from January to August
Source: Philippine National Police Women and Children Protection Center (WCPC)
On the other hand, no reliable estimates may be obtained on domestic abuse and
violence against men in the Philippines because incidents thereof are relatively low and,
perhaps, because many men will not even attempt to report the situation. In the United
Kingdom, 32% of women who had ever experienced domestic violence did so four or five
(or more) times, compared with 11% of the smaller number of men who had ever
experienced domestic violence; and women constituted 89% of all those who had
experienced 4 or more incidents of domestic violence. 75 Statistics in Canada show that
spousal violence by a woman against a man is less likely to cause injury than the other
way around (18 percent versus 44 percent). Men, who experience violence from their
spouses are much less likely to live in fear of violence at the hands of their spouses, and
much less likely to experience sexual assault. In fact, many cases of physical violence by
a woman against a spouse are in self-defense or the result of many years of physical or
emotional abuse. 76 CADSHI
While there are, indeed, relatively few cases of violence and abuse perpetrated against
men in the Philippines, the same cannot render R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn
vehicles to pick up, gather and deposit in receptacles the manure emitted or discharged
by their vehicle-drawing animals in any public highways, streets, plazas, parks or alleys,
said ordinance was challenged as violative of the guaranty of equal protection of laws as
its application is limited to owners and drivers of vehicle-drawing animals and not to those
animals, although not utilized, but similarly pass through the same streets.
685
The ordinance was upheld as a valid classification for the reason that, while there may
be non-vehicle-drawing animals that also traverse the city roads, "but their number must
be negligible and their appearance therein merely occasional, compared to the rigdrawing ones, as not to constitute a menace to the health of the community." 77 The mere
fact that the legislative classification may result in actual inequality is not violative of the
right to equal protection, for every classification of persons or things for regulation by law
produces inequality in some degree, but the law is not thereby rendered invalid. 78
TcSHaD
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and sentencing, crimes
against women are often treated differently and less seriously than other crimes. This was
argued by then United States Senator Joseph R. Biden, Jr., now Vice President, chief
sponsor of the Violence Against Women Act (VAWA), in defending the civil rights remedy
as a valid exercise of the U.S. Congress' authority under the Commerce and Equal
Protection Clauses. He stressed that the widespread gender bias in the U.S. has
institutionalized historic prejudices against victims of rape or domestic violence,
subjecting them to "double victimization" first at the hands of the offender and then of
the legal system. 79
Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No.
2723 that "(w)henever violence occurs in the family, the police treat it as a private matter
and advise the parties to settle the conflict themselves. Once the complainant brings the
case to the prosecutor, the latter is hesitant to file the complaint for fear that it might later
be withdrawn. This lack of response or reluctance to be involved by the police and
prosecution reinforces the escalating, recurring and often serious nature of domestic
violence." 80
Sadly, our own courts, as well, have exhibited prejudices and biases against our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for
Conduct Unbecoming of a Judge. He used derogatory and irreverent language in
reference to the complainant in a petition for TPO and PPO under R.A. 9262, calling her
as "only a live-in partner" and presenting her as an "opportunist" and a "mistress" in an
"illegitimate relationship." Judge Amila even called her a "prostitute," and accused her of
being motivated by "insatiable greed" and of absconding with the contested property. 81
Such remarks betrayed Judge Amila's prejudices and lack of gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought about by biases
and prejudices against women. As emphasized by the CEDAW Committee on the
Elimination of Discrimination against Women, addressing or correcting discrimination
through specific measures focused on women does not discriminate against men. 82
Petitioner's contention, 83 therefore, that R.A. 9262 is discriminatory and that it is an "antimale," "husband-bashing," and "hate-men" law deserves scant consideration. As a State
Party to the CEDAW, the Philippines bound itself to take all appropriate measures "to
modify the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women." 84 Justice Puno correctly pointed out that "(t)he
paradigm shift changing the character of domestic violence from a private affair to a public
offense will require the development of a distinct mindset on the part of the police, the
prosecution and the judges." 85
II. The classification is germane to the purpose of the law.
686
The distinction between men and women is germane to the purpose of R.A. 9262, which
is to address violence committed against women and children, spelled out in its
Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. It is hereby declared that the State values the dignity of
women and children and guarantees full respect for human rights. The State also
recognizes the need to protect the family and its members particularly women and
children, from violence and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence committed against
women and children in keeping with the fundamental freedoms guaranteed under the
Constitution and the provisions of the Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of Discrimination Against Women, Convention
on the Rights of the Child and other international human rights instruments of which the
Philippines is a party. DHECac
In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified
on August 5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified
by the Philippines on October 6, 2003. 86 This Convention mandates that State parties
shall accord to women equality with men before the law 87 and shall take all appropriate
measures to eliminate discrimination against women in all matters relating to marriage
and family relations on the basis of equality of men and women. 88 The Philippines
likewise ratified the Convention on the Rights of the Child and its two protocols. 89 It is,
thus, bound by said Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of
women and their children are threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence and abuse.
Section 3 thereof defines VAWC as:
. . . any act or a series of acts committed by any person against a woman who is his wife,
former wife, or against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against her child whether legitimate
or illegitimate, within or without the family abode, which result in or is likely to result in
physical, sexual, psychological harm or suffering, or economic abuse including threats of
such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It
includes, but is not limited to, the following acts: SACHcD
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a
woman or her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a
sex object, making demeaning and sexually suggestive remarks, physically attacking the
sexual parts of the victim's body, forcing her/him to watch obscene publications and
indecent shows or forcing the woman or her child to do indecent acts and/or make films
thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together
in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual activity by force,
threat of force, physical or other harm or threat of physical or other harm or coercion;
687
c) Prostituting the woman or child.

C."Psychological violence" refers to acts or omissions causing or likely to cause mental
or emotional suffering of the victim such as but not limited to intimidation, harassment,
stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and
mental infidelity. It includes causing or allowing the victim to witness the physical, sexual
or psychological abuse of a member of the family to which the victim belongs, or to
witness pornography in any form or to witness abusive injury to pets or to unlawful or
unwanted deprivation of the right to custody and/or visitation of common children. CDEaAI
D. "Economic abuse" refers to acts that make or attempt to make a woman financially
dependent which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the victim from engaging in any legitimate
profession, occupation, business or activity, except in cases wherein the other
spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the
Family Code;
2. deprivation or threat of deprivation of financial resources and the right to the use and
enjoyment of the conjugal, community or property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely controlling the conjugal
money or properties.
It should be stressed that the acts enumerated in the aforequoted provision are
attributable to research that has exposed the dimensions and dynamics of battery. The
acts described here are also found in the U.N. Declaration on the Elimination of Violence
Against Women. 90 Hence, the argument advanced by petitioner that the definition of
what constitutes abuse removes the difference between violent action and simple marital
tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous that will confuse
petitioner in his defense. The acts enumerated above are easily understood and provide
adequate contrast between the innocent and the prohibited acts. They are worded with
sufficient definiteness that persons of ordinary intelligence can understand what conduct
is prohibited, and need not guess at its meaning nor differ in its application. 91 Yet,
petitioner insists 92 that phrases like "depriving or threatening to deprive the woman or
her child of a legal right," "solely controlling the conjugal or common money or properties,"
"marital infidelity," and "causing mental or emotional anguish" are so vague that they
make every quarrel a case of spousal abuse. However, we have stressed that the
"vagueness" doctrine merely requires a reasonable degree of certainty for the statute to
be upheld not absolute precision or mathematical exactitude, as petitioner seems to
suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes
and bounds of the statute are clearly delineated. An act will not be held invalid merely
because it might have been more explicit in its wordings or detailed in its provisions. 93
There is likewise no merit to the contention that R.A. 9262 singles out the husband or
father as the culprit. As defined above, VAWC may likewise be committed "against a
woman with whom the person has or had a sexual or dating relationship." Clearly, the use
of the gender-neutral word "person" who has or had a sexual or dating relationship with
the woman encompasses even lesbian relationships. Moreover, while the law provides
that the offender be related or connected to the victim by marriage, former marriage, or a
sexual or dating relationship, it does not preclude the application of the principle of
conspiracy under the Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses
688
Tan, 94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be proper
respondents in the case filed by the latter upon the allegation that they and their son (GoTan's husband) had community of design and purpose in tormenting her by giving her
insufficient financial support; harassing and pressuring her to be ejected from the family
home; and in repeatedly abusing her verbally, emotionally, mentally and physically.
TCIEcH
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all
protections afforded by the due process clause of the Constitution. Says he: "On the basis
of unsubstantiated allegations, and practically no opportunity to respond, the husband is
stripped of family, property, guns, money, children, job, future employment and
reputation, all in a matter of seconds, without an inkling of what happened." 95
A protection order is an order issued to prevent further acts of violence against women
and their children, their family or household members, and to grant other necessary
reliefs. Its purpose is to safeguard the offended parties from further harm, minimize any
disruption in their daily life and facilitate the opportunity and ability to regain control of
their life. 96
"The scope of reliefs in protection orders is broadened to ensure that the victim or
offended party is afforded all the remedies necessary to curtail access by a perpetrator
to the victim. This serves to safeguard the victim from greater risk of violence; to accord
the victim and any designated family or household member safety in the family residence,
and to prevent the perpetrator from committing acts that jeopardize the employment and
support of the victim. It also enables the court to award temporary custody of minor
children to protect the children from violence, to prevent their abduction by the perpetrator
and to ensure their financial support." 97
The rules require that petitions for protection order be in writing, signed and verified by
the petitioner 98 thereby undertaking full responsibility, criminal or civil, for every
allegation therein. Since "time is of the essence in cases of VAWC if further violence is to
be prevented," 99 the court is authorized to issue ex parte a TPO after raffle but before
notice and hearing when the life, limb or property of the victim is in jeopardy and there is
reasonable ground to believe that the order is necessary to protect the victim from the
immediate and imminent danger of VAWC or to prevent such violence, which is about to
recur. 100
There need not be any fear that the judge may have no rational basis to issue an ex parte
order. The victim is required not only to verify the allegations in the petition, but also to
attach her witnesses' affidavits to the petition. 101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to
due process. Just like a writ of preliminary attachment which is issued without notice and
hearing because the time in which the hearing will take could be enough to enable the
defendant to abscond or dispose of his property, 102 in the same way, the victim of VAWC
may already have suffered harrowing experiences in the hands of her tormentor, and
possibly even death, if notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary requirements of procedural
due process must yield to the necessities of protecting vital public interests, 103 among
which is protection of women and children from violence and threats to their personal
safety and security.
It should be pointed out that when the TPO is issued ex parte, the court shall likewise
order that notice be immediately given to the respondent directing him to file an opposition
within five (5) days from service. Moreover, the court shall order that notice, copies of the
689
petition and TPO be served immediately on the respondent by the court sheriffs. The
TPOs are initially effective for thirty (30) days from service on the respondent. 104
Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance
and service of the notice upon the respondent requiring him to file an opposition to the
petition within five (5) days from service. The date of the preliminary conference and
hearing on the merits shall likewise be indicated on the notice. 105
The opposition to the petition which the respondent himself shall verify, must be
accompanied by the affidavits of witnesses and shall show cause why a temporary or
permanent protection order should not be issued. 106 HSCcTD
It is clear from the foregoing rules that the respondent of a petition for protection order
should be apprised of the charges imputed to him and afforded an opportunity to present
his side. Thus, the fear of petitioner of being "stripped of family, property, guns, money,
children, job, future employment and reputation, all in a matter of seconds, without an
inkling of what happened" is a mere product of an overactive imagination. The essence
of due process is to be found in the reasonable opportunity to be heard and submit any
evidence one may have in support of one's defense. "To be heard" does not only mean
verbal arguments in court; one may be heard also through pleadings. Where opportunity
to be heard, either through oral arguments or pleadings, is accorded, there is no denial
of procedural due process. 107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent ExParte Motion for Renewal of the TPO that was granted only two days earlier on April 24,
2006. Likewise, on May 23, 2006, petitioner filed a motion for the modification of the TPO
to allow him visitation rights to his children. Still, the trial court in its Order dated
September 26, 2006, gave him five days (5) within which to show cause why the TPO
should not be renewed or extended. Yet, he chose not to file the required comment
arguing that it would just be an "exercise in futility," conveniently forgetting that the
renewal of the questioned TPO was only for a limited period (30 days) each time, and
that he could prevent the continued renewal of said order if he can show sufficient cause
therefor. Having failed to do so, petitioner may not now be heard to complain that he was
denied due process of law.
Petitioner next laments that the removal and exclusion of the respondent in the VAWC
case from the residence of the victim, regardless of ownership of the residence, is virtually
a "blank check" issued to the wife to claim any property as her conjugal home. 108
The wording of the pertinent rule, however, does not by any stretch of the imagination
suggest that this is so. It states: aIETCA
SEC. 11. Reliefs available to the offended party. The protection order shall include
any, some or all of the following reliefs:
xxx xxx xxx
(c) Removing and excluding the respondent from the residence of the offended party,
regardless of ownership of the residence, either temporarily for the purpose of protecting
the offended party, or permanently where no property rights are violated. If the respondent
must remove personal effects from the residence, the court shall direct a law enforcement
agent to accompany the respondent to the residence, remain there until the respondent
has gathered his things and escort him from the residence;
xxx xxx xxx
690
Indubitably, petitioner may be removed and excluded from private respondent's

residence, regardless of ownership, only temporarily for the purpose of protecting the
latter. Such removal and exclusion may be permanent only where no property rights are
violated. How then can the private respondent just claim any property and appropriate it
for herself, as petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging
mediation and counseling, the law has done violence to the avowed policy of the State to
"protect and strengthen the family as a basic autonomous social institution." 109
Under Section 23 (c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any
issue thereof to a mediator. The reason behind this provision is well-explained by the
Commentary on Section 311 of the Model Code on Domestic and Family Violence as
follows: 110
This section prohibits a court from ordering or referring parties to mediation in a
proceeding for an order for protection. Mediation is a process by which parties in
equivalent bargaining positions voluntarily reach consensual agreement about the issue
at hand. Violence, however, is not a subject for compromise. A process which involves
parties mediating the issue of violence implies that the victim is somehow at fault. In
addition, mediation of issues in a proceeding for an order of protection is problematic
because the petitioner is frequently unable to participate equally with the person against
whom the protection order has been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial power which,
under the Constitution, is placed upon the "Supreme Court and such other lower courts
as may be established by law" and, thus, protests the delegation of power to barangay
officials to issue protection orders. 111 The pertinent provision reads, as follows: HCDAac
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay
Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay
ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this
Act. A Punong Barangay who receives applications for a BPO shall issue the protection
order to the applicant on the date of filing after ex parte determination of the basis of the
application. If the Punong Barangay is unavailable to act on the application for a BPO,
the application shall be acted upon by any available Barangay Kagawad. If the BPO is
issued by a Barangay Kagawad, the order must be accompanied by an attestation by the
Barangay Kagawad that the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the
issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall
personally serve a copy of the same on the respondent, or direct any barangay official to
effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any proceeding before the
Punong Barangay.
Judicial power includes the duty of the courts of justice to settle actual controversies
jurisdiction on the part of any branch or instrumentality of the Government. 112 On the
other hand, executive power "is generally defined as the power to enforce and administer
the laws. It is the power of carrying the laws into practical operation and enforcing their
due observance." 113
691
As clearly delimited by the aforequoted provision, the BPO issued by the Punong
Barangay or, in his unavailability, by any available Barangay Kagawad, merely orders the
perpetrator to desist from (a) causing physical harm to the woman or her child; and (2)
threatening to cause the woman or her child physical harm. Such function of the Punong
Barangay is, thus, purely executive in nature, in pursuance of his duty under the Local
Government Code to "enforce all laws and ordinances," and to "maintain public order in
the barangay." 114
We have held that "(t)he mere fact that an officer is required by law to inquire into the
existence of certain facts and to apply the law thereto in order to determine what his
official conduct shall be and the fact that these acts may affect private rights do not
constitute an exercise of judicial powers." 115
In the same manner as the public prosecutor ascertains through a preliminary inquiry or
proceeding "whether there is reasonable ground to believe that an offense has been
committed and the accused is probably guilty thereof," the Punong Barangay must
determine reasonable ground to believe that an imminent danger of violence against the
woman and her children exists or is about to recur that would necessitate the issuance of
a BPO. The preliminary investigation conducted by the prosecutor is, concededly, an
executive, not a judicial, function. The same holds true with the issuance of a BPO.
DHEcCT
We need not even belabor the issue raised by petitioner that since barangay officials and
other law enforcement agencies are required to extend assistance to victims of violence
and abuse, it would be very unlikely that they would remain objective and impartial, and
that the chances of acquittal are nil. As already stated, assistance by barangay officials
and other law enforcement agencies is consistent with their duty to enforce the law and
to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an unequivocal breach of,
or a clear conflict with the Constitution, not merely a doubtful or argumentative one, must
be demonstrated in such a manner as to leave no doubt in the mind of the Court. In other
words, the grounds for nullity must be beyond reasonable doubt. 116 In the instant case,
however, no concrete evidence and convincing arguments were presented by petitioner
to warrant a declaration of the unconstitutionality of R.A. 9262, which is an act of
Congress and signed into law by the highest officer of the co-equal executive department.
As we said in Estrada v. Sandiganbayan, 117 courts must assume that the legislature is
ever conscious of the borders and edges of its plenary powers, and passed laws with full
knowledge of the facts and for the purpose of promoting what is right and advancing the
welfare of the majority.
We reiterate here Justice Puno's observation that "the history of the women's movement
against domestic violence shows that one of its most difficult struggles was the fight
against the violence of law itself. If we keep that in mind, law will not again be a hindrance
to the struggle of women for equality but will be its fulfillment." 118 Accordingly, the
constitutionality of R.A. 9262 is, as it should be, sustained.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of
merit.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Bersamin, Del Castillo, Villarama, Jr., Perez, Mendoza
and Reyes, JJ., concur.
692
Leonardo-de Castro, Abad and Leonen, JJ., see separate concurring opinion.
Brion, J., see: concurring opinion.
Peralta, J., is on official leave.
||| (Garcia v. Drilon, G.R. No. 179267, [June 25, 2013])
10. AQUINO VS. PPA 696 SCRA 666 (2013)
SECOND DIVISION
[G.R. No. 181973. April 17, 2013.]
AMELIA AQUINO, RODOLFO TAGGUEG, JR., * ADELAIDA HERNANDEZ and
LEOPOLDO BISCOCHO, JR., petitioners, vs. PHILIPPINE PORTS AUTHORITY,
respondent.
DECISION
PEREZ, J p:
Before this Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of
Court praying that the Decision 2 dated 29 August 2007 of the Court of Appeals (CA) in
CA-G.R. SP No. 91743 be set aside. In the assailed decision, the CA reversed the 10
August 2005 Decision 3 and 15 September 2005 Order 4 of the Regional Trial Court
(RTC), Branch 55, Manila.
Background of the case
The Congress of the Philippines passed on 21 August 1989 5 Republic Act (R.A.) No.
6758 entitled "An Act Prescribing a Revised Compensation and Position Classification in
the Government and for Other Purposes" otherwise known as The Salary Standardization
Law.
Before the law, or on 31 August 1979, then President Ferdinand E. Marcos issued Letter
of Implementation No. 97 (LOI No. 97), authorizing the implementation of standard
compensation position classification plans for the infrastructure/utilities group of
government-owned or controlled corporations. On the basis thereof, the Philippine Ports
Authority (PPA) issued Memorandum Circular No. 57-87 dated 1 October 1987 which
granted to its officials holding managerial and supervisory positions representation and
transportation allowance (RATA) in an amount equivalent to 40% of their basic salary. 6
Thereafter, on 23 October 1989, PPA issued Memorandum Circular No. 36-89, which
extended the RATA entitlement to its Section Chiefs or heads of equivalent units,
Terminal Supervisors and senior personnel at the rate of 20% of their basic pay. 7 And,
on 14 November 1990, PPA issued Memorandum Circular No. 46-90, which adjusted
effective 1 January 1990, the RATA authorized under Memorandum Circular No. 36-89,
from 20% to 40% based on the standardized salary rate. 8
The continued validity of the RATA grant to the maximum ceiling of 40% of basic pay
finds support from the Opinions 9 rendered by the Office of the Government Corporate
Counsel (OGCC), Department of Justice. DECSIT
Finding justification in the increase in salary due these officials brought about by the
standardization mandated by R.A. No. 6758, PPA paid RATA differentials to its officials.
693
The Commission on Audit (COA) Corporate Auditor, however, in a letter dated 14

November 1990, addressed to PPA, disallowed in post-audit the payment of the RATA
differentials. It likewise disallowed in audit the grant of RATA to PPA Section Chiefs or
heads of equivalent units, Terminal Supervisors and senior personnel occupying positions
with salary grades of 17 and above who were appointed after the effectivity of R.A. No.
6758.
The COA called PPA's attention to Memorandum No. 90-679 dated 30 October 1990
which provides that "LOImp No. 97 series of 1979 implementing Compensation and
Position Classification for Infrastructure/Utilities for GOCC is replaced by Section 16 of
R.A. No. 6758." 10
In view of the disallowances, the affected PPA officials, represented by the OGCC, filed
a petition before the Supreme Court claiming their entitlement to the RATA provided for
under LOI No. 97. The case was docketed as G.R. No. 100773 entitled "Philippine Ports
Authority v. Commission on Audit, et al." 11
In a decision dated 16 October 1992, the Supreme Court ruled in favor of the COA and
declared that an official to be entitled to the continued RATA benefit under LOI No. 97
must be an incumbent as of 1 July 1989 and more importantly, was receiving the RATA
provided by LOI No. 97 as of 1 July 1989.
As a result of the aforesaid ruling, there are at present two categories of managers and
supervisors at the PPA. The first category is composed of PPA officials who were
occupying their positions and actually receiving the 40% RATA under LOI No. 97 as of 1
July 1989 and who continue to receive such benefit. The second category consists of
officials who were not incumbents as of 1 July 1989 or were appointed or promoted to
their positions only after 1 July 1989. The second category officials therefore receive a
lesser RATA under the General Appropriations Act although they hold the same rank, title
and may have the same responsibilities as their counterparts in the first category.
The Case
On 26 July 2000, petitioners, who are second category PPA officials filed a Petition for
Mandamus and Prohibition before the RTC of Manila, raffled to Branch 55. They claim
anew that they are entitled to RATA in the amount not exceeding 40% of their respective
basic salaries. They anchor their petition on recent developments allegedly brought about
by the decision of the Supreme Court in the case of De Jesus v. Commission on Audit, et
al. 12 which was decided almost six (6) years after the Court's decision in PPA v. COA,
et al.13 They further claim that certain issuances were released by the COA and the
Department of Budget and Management (DBM), which in effect, extended the cut-off date
in the grant of the 40% RATA, thus entitling them to these benefits. AaDSEC
PPA filed a motion to dismiss on the ground of res judicata under paragraph (f), Rule 16
of the Rules of Court. It argued that a case involving the same parties, subject matter and
cause of action had already been resolved by this Court in PPA v. COA, et al. 14
Finding merit in PPA's motion, the RTC ordered the dismissal of the petition in an Order
dated 8 November 2000. The dispositive portion of the Order reads:
WHEREFORE, premises considered, the Motion to Dismiss is hereby GRANTED, and
the Petition in this case is hereby DISMISSED on the ground that it is already barred by
the principle of res judicata. 15
Petitioners elevated the case before the Supreme Court by way of appeal under Rule 45
of the Rules of Court. The Supreme Court, however, in a Resolution 16 dated 28 March
2001 referred the case to the CA for appropriate action. The case was docketed as CA
G.R. SP No. 64702.
694
On 31 July 2002, a decision was rendered by the CA on the referred case. It declared
that the principle of res judicata is not applicable to the case. The appellate court
explained that the existence of DBM and COA issuances which entitle herein petitioners
to the grant of RATA is the pertinent fact and condition which is material to the instant
case taking it away from the domain of the principle of res judicata. 17 When new facts
or conditions intervene before the second suit, furnishing a new basis for the claims and
defenses of the party, the issues are no longer the same; hence, the former judgment
cannot be pleaded as a bar to the subsequent action. 18 At the time judgment was
rendered in the previous case, the fact and condition now in existence, which consist of
the DBM and COA issuances, has not yet come about. In view of the issuances,
petitioners are faced with an entirely separate facts and conditions, which make the
principle of res judicata inapplicable. 19 The decision ordered the remand of the case to
the court of origin for continuation of proceedings.
After due proceedings in the trial court, a decision in favor of petitioners was rendered on
10 August 2005. The dispositive portion of the decision commanded respondent PPA to
pay the claim for RATA equivalent to 40% of petitioners' standardized basic salaries
authorized under LOI No. 97, commencing from their respective dates of appointments
or on 23 October 2001 when the case of Irene V. Cruz, et al. v. COA 20 was promulgated
by the Supreme Court, whichever is later. aIcDCA
The trial court ratiocinated that "when the Supreme Court En Banc ruled on 23 October
2001 in the IRENE CRUZ case that 'The date of hiring of an employee cannot be
considered as a substantial distinction,' the so-called first (sic) category managers and
supervisors whose appointments thereto were made after 01 July 1989 and who were
effectively deprived of the 40% RATA on account of the Supreme Court's ruling in the
PPA v. COA, et al. case have established a clear legal right to claim the 40% RATA under
LOI No. 97 commencing on 23 October 2001, and the correlative legal duty of respondent
PPA to pay the same; thus, entitling petitioners who are qualified to avail of the
extraordinary remedy of mandamus." 21
PPA raised the matter before the CA which docketed the case as CA G.R. SP No. 91743.
In a decision dated 29 August 2007, the appellate court reversed the decision of the trial
court and held:
WHEREFORE, premises considered, the August 10, 2005 Decision and the September
15, 2005 Order of the Regional Trial Court, Branch 55, National Capital Judicial Region,
Manila, are hereby REVERSED. Accordingly, the Amended Petition in Civil Case No. 0098161 is hereby DISMISSED. No costs. 22
Petitioners filed a motion for reconsideration but this was denied by the appellate court in
a resolution dated 29 February 2008.
Hence, this petition assailing the 29 August 2007 decision of the CA and its 29 February
2008 resolution.
Issues
Petitioners raise the following issues for resolution:
I.WHETHER OR NOT THE PRINCIPLE OF RES JUDICATA IS APPLICABLE IN THE
INSTANT CASE TAKING INTO CONSIDERATION THE FINAL DECISION OF THE
COURT OF APPEALS IN CA. G.R. SP NO. 64702.
II.WHETHER OR NOT PPA IN DENYING THE CLAIM OF PETITIONERS FOR 40%
RATA HAS COMMITTED A VIOLATION OF THEIR CONSTITUTIONAL RIGHT TO
EQUAL PROTECTION; AND
695
III.WHETHER OR NOT PETITIONERS ARE ENTITLED TO 40% RATA AND SHOULD

NOT BE MADE TO REFUND THE RATA THEY HAD ALREADY RECEIVED. cCHITA
Petitioners' Argument
Petitioners submit that the decision of the CA in CA G.R. SP No. 64702 adequately cited
jurisprudence and authorities on the matter involving the issue of res judicata. Such
decision of the appellate court was not appealed by the PPA and as such, has attained
finality. In view thereof, petitioners allege that the case of PPA v. COA, et al.23 can no
longer serve as a ground for the dismissal of the instant case since such would result in
"the sacrifice of justice to technicality." 24
Petitioners further submit that the CA in its decision in CA G.R. SP No. 91743 may have
overlooked the significance of the Supreme Court's ruling in the case of De Jesus v.
Commission on Audit, et al. 25 which extended the prescribed date of effectivity of R.A.
No. 6758 from 1 July 1989 to 31 October 1989, viz.:
In the present case under scrutiny, it is decisively clear that DBM-CCC No. 10, which
completely disallows payment of allowances and other additional compensation to
government officials and employees starting November 1, 1989 is not a mere
interpretative or internal regulation. It is something more than that. And why not, when it
tends to deprive government workers of their allowances and additional compensation
sorely needed to keep body and soul together. . . .
Petitioners claim that the DBM, which is the agency tasked to implement R.A. No. 6758,
amplified this extension in its 4 May 1992 letter to the Administrator of the National
Electrification Administration (NEA). The pertinent portion of the letter reads:
DBM has authorized certain GOCCs/GFIs to grant also to officials and employees hired
between the period of July 1, 1989 and October 31, 1989 the allowances and fringe
benefit enumerated in said Item 5.5 of CCC No. 10.
At this juncture it is pertinent to point out that although the effectivity date prescribed in
R.A. No. 6758 is July 1, 1989, said Act and its implementing circulars were formally
promulgated only in the later part of October 1989. The preparation of all required
documents, more particularly the Index of Occupational Services (IOS) and the Position
Allocation List (PAL) for the GOCCs/GFIs was completed at much later date. Thus, within
the period of transition from July 1, 1989 up to the date of completion of all the required
documents for the actual implementation by each GOCC/GFI of said salary
standardization, flexibility in the interpretation of rules and regulations prescribed under
R.A. 6758 was necessary. DBM felt it illogical to assume that during the period R.A. 6758
was not yet issued all GOCCs/GFIs were already aware of what implementing guidelines
it (DBM) will prescribe and have their personnel actions accordingly adjusted to said
guidelines. Likewise, it is counter-productive if at that time, we advised all GOCCs/GFIs
to suspend their personnel actions as same could be disruptive to their operations and
delay the completion of important projects. cSDIHT
Premised on the above considerations, we maintain the position that our action allowing
officials and employees hired between the period of July 1, 1989 and October 31, 1989
to be paid allowances under Item No. 5.5 of CCC No. 10 is logically tenable and
reasonable since same was made during the "transitory period" from the old system to
the new system. 26
They further claim that even the COA took cognizance of this extension in the
memorandum 27 issued by the officer-in-charge of the COA Audit Office, to wit:
696
Moreover, this office gives much weight to the position of the Secretary, DBM in his letter
to the Administrator, NEA, dated October 30, 1993 that the cut-off date of July 1, 1989
prescribed in R.A. 6758/CCC #10 was extended to October 31, 1989 primarily on
consideration that said R.A. 6758/CCC #10 were formally issued/promulgated only in the
later part of October 1989. . . .
Petitioners likewise raised as their cause of action the violation of their constitutional right
to equal protection of the law. They contend that this alone would constitute sufficient
justification for the filing anew of the instant petition. Contrary to the statement in the
assailed decision of the CA to the effect that they failed to plead or raise such issue in the
trial court, they submit that a perusal of their amended petition would show that
paragraphs 30, 31, 32 and 33 thereof were devoted to that issue.
Finally, as regards the matter of refund of the RATA being demanded by COA, petitioners
submit that they should not be required to make such refund since these were received
in good faith and on the honest belief that they were entitled to it.
PPA's Argument
Respondent PPA maintains that PPA employees who were appointed to managerial and
supervisory positions after the effectivity of RA No. 6758 are not entitled to the 40% RATA
benefit provided under LOI No. 97. Consistent with the ruling of the Court in PPA v. COA,
et al., 28 respondent PPA contends that only the first category officials or those who were
granted and were receiving RATA equivalent to 40% of their salaries prior to 1 July 1989
are entitled to such benefits. Petitioners who are included in the second category officials
or those who are not incumbents as of 1 July 1989 are not entitled to the 40% RATA
benefit provided under LOI No. 97.
Our Ruling
There is merit in petitioners' argument that their petition should not be dismissed on the
ground of res judicata since this is based on jurisprudence and issuances not yet in
existence at the time of the promulgation of the Court's decision in PPA v. COA, et al.29
Petitioners are, however, incorrect in their contention that the decision of the appellate
court in CA-G.R. SP No. 64702 which was not appealed by the PPA has become final
and as such, barred the appellate court's subsequent ruling in CA-G.R. SP No. 91743.
CHcETA
We note that when the petition was elevated to the CA in the first instance in CA-G.R. SP
No. 64702, the matter submitted to be resolved by the appellate court was simply the
issue on whether the trial court was correct in granting the motion to dismiss and in
declaring that the case is barred by the principle of res judicata. Despite the non-appeal
by PPA of the appellate court's ruling that res judicata is not applicable, the case did not
attain finality in view of the order of the CA remanding the case to the trial court for
continuation of hearing. The appellate court's ruling in CA G.R. SP No. 91743, therefore,
was not barred by the ruling in CA G.R. SP No. 64702 since the ruling in the second
instance was already a ruling after trial on the merits.
Although the principle of res judicata is not applicable, the petition must still fail because
our ruling must adhere to the doctrine of stare decisis. In Chinese Young Men's Christian
Association of the Philippine Islands v. Remington Steel Corporation, 30 the Court
expounded on the importance of this doctrine in securing certainty and stability of judicial
decisions, thus:
Time and again, the court has held that it is a very desirable and necessary judicial
practice that when a court has laid down a principle of law as applicable to a certain state
of facts, it will adhere to that principle and apply it to all future cases in which the facts are
substantially the same. Stare decisis et non quieta movere. Stand by the decisions and
disturb not what is settled. Stare decisis simply means that for the sake of certainty, a
697
conclusion reached in one case should be applied to those that follow if the facts are
substantially the same, even though the parties may be different. It proceeds from the
first principle of justice that, absent any powerful countervailing considerations, like cases
ought to be decided alike. Thus, where the same questions relating to the same event
have been put forward by the parties similarly situated as in a previous case litigated and
decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate
the same issue. (Emphasis supplied)
The issues raised by petitioners are no longer novel. In a catena of cases 31 promulgated
after De Jesus v. COA 32 and Cruz v. COA, 33 this Court has ruled that the
pronouncement it has established in the earlier case of PPA v. COA, et al.34 with regard
to the interpretation and application of Section 12 of RA 6758 is still applicable. The
subsequent decisions maintained that allowances or fringe benefits, whether or not
integrated into the standardized salaries prescribed by R.A. 6758, should continue to be
enjoyed only by employees who (1) were incumbents and (2) were receiving those
benefits as of 1 July 1989.
In those cases, the Court reiterated that the intention of the framers of the law was to
phase out certain allowances and privileges gradually, without upsetting the principle of
non-diminution of pay. The intention of Section 12 to protect incumbents who were
already receiving those allowances on 1 July 1989, when RA 6758 took effect was
emphasized thus:
An incumbent is a person who is in present possession of an office. SCADIT
The consequential outcome, under sections 12 and 17, is that if the incumbent resigns or
is promoted to a higher position, his successor is no longer entitled to his predecessor's
RATA privilege . . . or to the transition allowance.
Finally, to explain what July 1, 1989 pertained to, we held in the same case as follows:
. . . . The date July 1, 1989 becomes crucial only to determine that as of said date, the
officer was an incumbent and was receiving the RATA, for purposes of entitling him to its
continued grant. . . . .
In Philippine International Trading Corporation v. COA, the Court confirmed the legislative
intention in this wise:
. . . [T]here was no intention on the part of the legislature to revoke existing benefits being
enjoyed by incumbents of government positions at the time of the passage of RA 6758
by virtue of Sections 12 and 17 thereof. . . . .
The Court stressed that in reserving the benefits to incumbents alone, the legislature's
intention was not only to adhere to the policy of non-diminution of pay, but also to be
consistent with the prospective application of laws and the spirit of fairness and justice.
35 (Emphasis omitted)
xxx xxx xxx
The disquisition of the Court in Philippine National Bank v. Palma 36 is instructive, viz.:
The reliance of the court a quo on Cruz v. COA is misplaced. It was held in that case that
the specific date of hiring, October 31, 1989, had been not only arbitrarily determined by
the COA, but also used as an unreasonable and unsubstantial basis for awarding
allowances to employees. The basis for the Court's ruling was not primarily the resulting
disparity in salaries received for the same work rendered but, more important, the
698
absence of a distinction in the law that allowed the grant of such benefits between
those hired before and those after the said date.
Thus, setting a particular date as a distinction was nullified, not because it was
constitutionally infirm or was against the "equal pay for equal work" policy of RA 6758.
Rather, the reason was that the COA had acted without or in excess of its authority in
arbitrarily choosing October 31, 1989, as the cutoff date for according the allowances. It
was explained that "when the law does not distinguish, neither should the court." And for
that matter, neither should the COA. TSAHIa
In consonance with stare decisis, there should be no more misgivings about the proper
application of Section 12. In the present case, the payment of benefits to employees hired
after July 1, 1989, was properly withheld, because the law clearly mandated that those
benefits should be reserved only to incumbents who were already enjoying them before
its enactment. Withholding them from the others ensured that the compensation of the
incumbents would not be diminished in the course of the latter's continued employment
with the government agency.
It bears emphasis also that in promulgating the Irene Cruz case, there was no intention
on the part of the Court to abandon its earlier ruling in PPA v. COA, et al. 37 The factual
circumstances in the former case are different from those attendant in the case of herein
petitioners. In fine, the Irene Cruz case is not on all fours with the present case. The
petitioners in the former case, who were employees of the Sugar Regulatory
Administration, were able to obtain from the Office of the President a post facto approval
or ratification of their social amelioration benefit. No such authority granted by the Office
of the President has been presented by the second category officials of the PPA.
Petitioners further invoked that the denial of their claim of 40% RATA violated their
constitutional right to equal protection of the laws. We note that the Constitution does not
require that things which are different in fact be treated in law as though they were the
same. The equal protection clause does not prohibit discrimination as to things that are
different. It does not prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate. 38
The equal protection of the laws clause of the Constitution allows classification. . . . . A
law is not invalid simply because of simple inequality. The very idea of classification is
that of inequality, so that it goes without saying that the mere fact of inequality in no
on substantial distinctions which make for real differences, that it must be germane to the
apply equally to each member of the class. 39
As explained earlier, the different treatment accorded the second sentence (first
paragraph) of Section 12 of RA 6758 to the incumbents as of 1 July 1989, on one hand,
and those employees hired on or after the said date, on the other, with respect to the
grant of non-integrated benefits lies in the fact that the legislature intended to gradually
phase out the said benefits without, however, upsetting its policy of non-diminution of pay
and benefits. 40
The consequential outcome under Sections 12 and 17 is that if the incumbent resigns or
is promoted to a higher position, his successor is no longer entitled to his predecessor's
RATA privilege or to the transition allowance. After 1 July 1989, the additional financial
incentives such as RATA may no longer be given by the GOCCs with the exemption of
those which were authorized to be continued under Section 12 of RA 6758. 41
699
Therefore, the aforesaid provision does not infringe the equal protection clause of the
Constitution as it is based on reasonable classification intended to protect the rights of
the incumbents against diminution of their pay and benefits. 42
Anent the issue of refund, we note that petitioners were referring to the RATA received
by the second category officials pursuant to PPA Memorandum Circular No. 36-89 dated
23 October 1989 and PPA Memorandum Circular No. 46-90 dated 14 November 1990.
We deem it no longer necessary to discuss this issue considering that it was already ruled
upon in the earlier PPA case and was even part of the dispositive portion 43 of the
decision which became final and executory. Well-settled is the rule that once a judgment
becomes final and executory, it can no longer be disturbed, altered, or modified in any
respect. It is essential to an effective administration of justice that once a judgment has
become final, the issue or cause therein should be laid to rest. 44 The arguments of
petitioners regarding this issue should have been raised in that case and not in this
present petition. EAICTS
We conclude this case with the words borrowed from former Chief Justice Artemio V.
Panganiban:
During these tough economic times, this Court understands, and in fact sympathizes with,
the plight of ordinary government employees. Whenever legally possible, it has bent over
backwards to protect labor and favor it with additional economic advantages. In the
present case, however, the Salary Standardization Law clearly provides that the claimed
benefits shall continue to be granted only to employees who were "incumbents" as of July
1, 1989. Hence, much to its regret, the Court has no authority to reinvent or modify the
law to extend those benefits even to employees hired after that date. 45
WHEREFORE, the instant Petition for Review on Certiorari is DENIED. The Decision
dated 29 August 2007 and Resolution dated 29 February 2008 of the Court of Appeals in
CA-G.R. SP No. 91743 are AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Carpio, Brion, Del Castillo and Perlas-Bernabe, JJ., concur.
||| (Aquino v. Philippine Ports Authority, G.R. No. 181973, [April 17, 2013], 709 PHIL 636652)
11. NATIONAL ARTIST VS. EX. SEC. 701 SCRA 269 (2013)
EN BANC
[G.R. No. 189028. July 16, 2013.]
NATIONAL ARTIST FOR LITERATURE VIRGILIO ALMARIO, NATIONAL ARTIST FOR
LITERATURE BIENVENIDO LUMBERA, NATIONAL ARTIST FOR VISUAL ARTS
(PAINTING) BENEDICTO CABRERA, NATIONAL ARTIST FOR VISUAL ARTS
(SCULPTURE) NAPOLEON ABUEVA, NATIONAL ARTIST FOR VISUAL ARTS
(PAINTING AND SCULPTURE) ARTURO LUZ, NATIONAL ARTIST FOR
PRODUCTION DESIGN SALVADOR BERNAL, UNIVERSITY PROFESSOR EMERITUS
GEMINO ABAD, DEAN MARVIC M.V.F. LEONEN (UP COLLEGE OF LAW), DEAN
DANILO SILVESTRE (UP COLLEGE OF ARCHITECTURE), DEAN ROLAND
TOLENTINO (UP COLLEGE OF MASS COMMUNICATION), PROF. JOSE DALISAY,
DR. ANTON JUAN, DR. ALEXANDER CORTEZ, DR. JOSE NEIL GARCIA, DR. PEDRO
JUN CRUZ REYES, PROF. JOSE CLAUDIO GUERRERO, PROF. MICHAEL M.
COROZA, PROF. GERARD LICO, PROF. VERNE DE LA PENA, PROF. MARIAN
700
ABUAN, PROF. THEODORE O. TE, DR. CRISTINA PANTOJA-HIDALGO, PROF. JOSE

WENDELL CAPILI, PROF. SIR ANRIAL TIATCO, PROF. NICOLO DEL CASTILLO,
PROF. HORACIO DUMANLIG, PROF. DANTON REMOTO, PROF. PRISCELINA
PATAJO-LEGASTO, PROF. BELEN CALINGACION, PROF. AMIEL Y. LEONARDIA,
PROF. VIM NADERA, PROF. MARILYN CANTA, PROF. CECILIA DELA PAZ, PROF.
CHARLSON ONG, PROF. CLOD MARLON YAMBAO, PROF. KENNETH JAMANDRE,
PROF. JETHRO JOAQUIN, ATTY. F.D. NICOLAS B. PICHAY, ATTY. ROSE BEATRIX
ANGELES, MR. FERNANDO JOSEF, MS. SUSAN S. LARA, MR. ALFRED YUSON, MS.
JING PANGANIBAN-MENDOZA, MR. ROMULO BAQUIRAN, JR., MR. CARLJOE
JAVIER, MS. REBECCA T. ANONUEVO, MR. JP ANTHONY D. CUNADA, MS. LEAH
NAVARRO, MR. MARK MEILLY, MR. VERGEL O. SANTOS, MR. GIL OLEA MENDOZA,
MR. EDGAR C. SAMAR, MS. CHRISTINE BELLEN, MR. ANGELO R. LACUESTA, MS.
ANNA MARIA KATIGBAK-LACUESTA, MR. LEX LEDESMA, MS. KELLY PERIQUET,
MS. CARLA PACIS, MR. J. ALBERT GAMBOA, MR. CESAR EVANGELISTA BUENDIA,
MR. PAOLO ALCAZAREN, MR. ALWYN C. JAVIER, MR. RAYMOND MAGNO
GARLITOS, MS. GANG BADOY, MR. LESLIE BOCOBO, MS. FRANCES BRETANA,
MS. JUDITH TORRES, MS. JANNETTE PINZON, MS. JUNE POTICAR-DALISAY, MS.
CAMILLE DE LA ROSA, MR. JAMES LADIORAY, MR. RENATO CONSTANTINO, JR.,
and CONCERNED ARTISTS OF THE PHILIPPINES (CAP), petitioners, vs. THE
EXECUTIVE SECRETARY, THE SECRETARY OF THE DEPARTMENT OF BUDGET
AND MANAGEMENT, THE CULTURAL CENTER OF THE PHILIPPINES, THE
NATIONAL COMMISSION ON CULTURE AND THE ARTS, MS. CECILE GUIDOTEALVAREZ, MR. CARLO MAGNO JOSE CAPARAS, 1 MR. JOSE MORENO, MR.
FRANCISCO MAOSA, AND ALL PERSONS, PUBLIC AND PRIVATE, ACTING
UNDER THEIR INSTRUCTIONS, DIRECTION, CONTROL AND SUPERVISION IN
RELATION TO THE CONFERMENT OF THE ORDER OF THE NATIONAL ARTIST AND
THE RELEASE OF FUNDS IN RELATION TO THE CONFERMENT OF THE HONORS
AND PRIVILEGES OF THE ORDER OF NATIONAL ARTISTS ON RESPONDENTS
GUIDOTE-ALVAREZ, CAPARAS, MORENO AND MAOSA, respondents.
DECISION
LEONARDO-DE CASTRO, J p:
Art has traditionally been viewed as the expression of everything that is true, good and
beautiful. As such, it is perceived to evoke and produce a spirit of harmony. Art is also
considered as a civilizing force, a catalyst of nation-building. The notion of art and artists
as privileged expressions of national culture helped shape the grand narratives of the
nation and shared symbols of the people. The artist does not simply express his/her own
individual inspiration but articulates the deeper aspirations of history and the soul of the
people. 2 The law recognizes this role and views art as something that "reflects and
shapes values, beliefs, aspirations, thereby defining a people's national identity." 3 If
unduly politicized, however, art and artists could stir controversy and may even cause
discord, as what happened in this case. IEaATD
The Antecedents
History of the Order of National Artists
On April 27, 1972, former President Ferdinand E. Marcos issued Proclamation No. 1001
4 and, upon recommendation of the Board of Trustees of the Cultural Center of the
Philippines (CCP), created the category of Award and Decoration of National Artist to be
awarded to Filipinos who have made distinct contributions to arts and letters. In the same
issuance, Fernando Amorsolo was declared as the first National Artist.
On May 15, 1973, Proclamation No. 1144 5 was issued. It amended Proclamation No.
1001 "by creating a National Artists Awards Committee" that would "administer the
conferment of the category of National Artist" upon deserving Filipino artists. The
Committee, composed of members of the Board of Trustees of the CCP, was tasked to
701
"draft the rules to guide its deliberations in the choice of National Artists, to the end that
those who have created a body of work in the arts and letters capable of withstanding the
test of time will be so recognized."
The authority of the National Artists Awards Committee to administer the conferment of
the National Artist Award was again reiterated in Presidential Decree No. 208 6 issued
on June 7, 1973.
On April 3, 1992, Republic Act No. 7356, otherwise known as the Law Creating the
National Commission for Culture and the Arts, was signed into law. It established the
National Commission for Culture and the Arts (NCCA) and gave it an extensive mandate
over the development, promotion and preservation of the Filipino national culture and arts
and the Filipino cultural heritage. The NCCA was tasked with the following:
Sec. 8. The Commission. A National Commission for Culture and Arts is hereby
created to formulate policies for the development of culture and arts; implement these
policies in coordination with affiliated cultural agencies; coordinate the implementation of
programs of these affiliated agencies; administer the National Endowment Fund for
Culture and Arts (NEFCA); encourage artistic creation within a climate of artistic freedom;
develop and promote the Filipino national culture and arts; and preserve Filipino cultural
heritage. The Commission shall be an independent agency. It shall render an annual
report of its activities and achievements to the President and to Congress.
Among the specific mandates of the NCCA under Republic Act No. 7356 is to "extend
recognition of artistic achievement through awards, grants and services to artists and
cultural groups which contribute significantly to the Filipino's cultural legacy." 7 In
connection with this mandate, the NCCA is vested with the power to "advise the President
on matters pertaining to culture and the arts, including the creation of a special decoration
or award, for persons who have significantly contributed to the development and
promotion of Philippine culture and arts." 8 AECacT
As both the CCP Board of Trustees and the NCCA have been mandated by law to
promote, develop and protect the Philippine national culture and the arts, and authorized
to give awards to deserving Filipino artists, the two bodies decided to team up and jointly
administer the National Artists Award. 9 Thereafter, they reviewed the guidelines for the
nomination, selection and administration of the National Artists Award. Pursuant to their
respective powers to draft and promulgate rules, regulations and measures to guide them
in their deliberations in the choice of National Artists, the CCP and NCCA adopted the
following revised guidelines in September 2007: 10
4. ADMINISTRATION OF THE AWARD
4.1. The National Commission for Culture and the Arts (NCCA) shall plan, organize and
implement the Order of National Artists in coordination with the Cultural Center of the
Philippines (CCP).
4.2. It shall enlist the support and cooperation of private sector experts from the various
fields of art to ensure that the awards are implemented in a successful and impartial
manner.
4.3. The National Artist Award Secretariat shall commission art experts to form a Special
Research Group who shall verify information submitted on nominees and provide
essential data. They shall be selected for their specialization and familiarity with the works
and accomplishments of nominated artists.
4.4. The Special Research Group shall be composed of ten (10) to twenty (20) members
who have expertise in one or more fields or disciplines.
702
4.5. The National Artist Award Council of Experts shall be created before or during the
nomination period. It is tasked to screen nominees and recommend to the NCCA and
CCP Boards the candidates for the Order of National Artists. It shall be composed of
highly regarded peers, scholars, (including cultural philosophers and historians),
academicians, researchers, art critics, and other knowledgeable individuals. A wider agerange of experts who would have first-hand knowledge of achievements of nominees shall
be considered.
4.6. The selection of the members of the National Artist Award Council of Experts shall
be based on the following criteria: acIASE
(a) should have achieved authority, credibility and track record in his field(s) of expertise;
(b) should have extensive knowledge in his field(s) and his views on Philippine art and
culture must be national in perspective;
(c) should be a recognized authority in the study or research of Philippine art and culture;
(d) must be willing to devote sufficient time and effort to the work of the Council;
(e) must be willing to sign a non-disclosure statement in order to safeguard the
confidentiality of the deliberations;
(f) must not have been convicted with finality of any crime by a court of justice or
dismissed for cause by any organization, whether public or private.
4.7. The National Artist Award Council of Experts shall be composed of a maximum of
seven (7) members each of the seven (7) areas/disciplines. The living National Artists will
automatically become members in addition to the forty-nine (49) selected members.
These members will constitute the first deliberation panel and will be invited to evaluate
the nominations and materials submitted by the Special Research Group.
4.8. Any member of the Council of Experts who is nominated or related to a nominee up
to the fourth degree of consanguinity or affinity shall inhibit himself/herself from the
deliberation process. Likewise, any member may decline to participate in the deliberation
for any reason or may be removed for just cause upon recommendation to the NCCA
Board by at least two thirds (2/3) of the members; in which case, the National Artist Award
Secretariat shall again select the replacements for those who decline or resigned until the
first deliberation panel is completed.
4.9. The list of nominated members of the National Artist Award Council of Experts shall
be reviewed by the National Artist Award Secretariat as needed, for purposes of adding
new members or replacements.
4.10. The members of the National Artist Award Council of Experts shall serve for a fixed
term of three (3) years.
5. CRITERIA FOR SELECTION
The Order of National Artists shall be given to:
5.1. Living artists who are Filipino citizens at the time of nomination, as well as those who
died after the establishment of the award in 1972 but were Filipino citizens at the time of
their death. ADEaHT
703
5.2. Artists who through the content and form of their works have contributed in building
a Filipino sense of nationhood.
5.3. Artists who have pioneered in a mode of creative expression or style, thus, earning
distinction and making an impact on succeeding generations of artists.
5.4. Artists who have created a substantial and significant body of works and/or
consistently displayed excellence in the practice of their art form thus enriching artistic
expression or style.
5.5. Artists who enjoy broad acceptance through:
5.5.1. prestigious national and/or international recognition, such as the Gawad CCP Para
sa Sining, CCP Thirteen Artists Award and NCCA Alab ng Haraya
5.5.2. critical acclaim and/or reviews of their works
5.5.3. respect and esteem from peers.
6. NOMINATION PROCEDURE
6.1. The National Artist Award Secretariat shall announce the opening of nominations
through media releases and letters to qualified organizations.
6.2. Candidates may be nominated under one or more of the following categories:
6.2.1. Dance choreography, direction and/or performance.
6.2.2. Music composition, direction, and/or performance.
6.2.3. Theater direction, performance and/or production design.
6.2.4. Visual Arts painting, sculpture, printmaking, photography, installation art, mixed
media works, illustration, comics/komiks, graphic arts, performance art and/or imaging.
cSCTEH
6.2.5. Literature poetry, fiction (short story, novel and play); non-fiction (essay,
journalism, literary criticism and historical literature).
6.2.6. Film and Broadcast Arts direction, writing, production design, cinematography,
editing, camera work, and/or performance.
6.2.7. Architecture, Design and Allied Arts architecture design, interior design,
industrial arts design, landscape architecture and fashion design.
6.3. Nominations for the Order of National Artists may be submitted by government and
non-government cultural organizations and educational institutions, as well as private
foundations and councils.
6.4. Members of the Special Research Group, as well as agencies attached to the NCCA
and CCP shall not submit nominations.
6.5. NCCA and CCP Board members and consultants and NCCA and CCP officers and
staff are automatically disqualified from being nominated.
6.6. Nominations shall be accepted only when these are submitted in writing and with
proper supporting documentation, as follows:
704
6.6.1. A cover letter signed by the head or designated representative of the nominating
organization.
The cover letter shall be accompanied by a Board Resolution approving the nominee
concerned with the said resolution signed by the organization President and duly certified
by the Board Secretary.
6.6.2. A duly accomplished nomination form;
6.6.3. A detailed curriculum vitae of the nominee;
6.6.4. A list of the nominee's significant works categorized according to the criteria;
6.6.5. The latest photograph (color or black and white) of the nominee, either 5["] x 7" or
8["] x 11"; EICSTa
6.6.6. Pertinent information materials on the nominee's significant works (on CDs, VCDs
and DVDs);
6.6.7. Copies of published reviews;
6.6.8. Any other document that may be required.
6.7. Nominations received beyond the announced deadline for the submission of
nominations shall not be considered.
6.8. The National Artist Award Secretariat shall announce the opening of nominations
through media releases.
6.9. All inquiries and nominations shall be submitted to
The NATIONAL ARTIST AWARD SECRETARIAT
Office of the Artistic Director
Cultural Center of the Philippines
Roxas Boulevard, 1300 Pasay City
or
The NATIONAL ARTIST AWARD SECRETARIAT
Office of the Deputy Executive Director
National Commission for Culture and the Arts
633 General Luna Street, Intramuros, Manila
7. SCREENING AND SELECTION PROCESS
7.1. The National Artist Award Secretariat shall pre-screen the nominees based on
technical guideline items 5.1, 6.2, 6.3, 6.4, 6.5 and 6.6. The pre-screening shall not be
based on the accomplishments and merits of the nominee.
7.2. The Special Research Group shall accomplish its task within six (6) months. The
main objective is to verify the validity of the data, and evaluate the quality, true value and
significance of works according to the criteria. It shall come up with the updated and
comprehensive profiles of nominees reflecting their most outstanding achievements.
7.3. The National Artist Award Secretariat will meet to review the list of nominees for
oversights. Consequently, deserving nominees shall be added to the list.
705
7.4. The first deliberation panel (Council of Experts) shall be intra-disciplinary. The
panelists shall be grouped according to their respective fields of expertise or disciplines
to shortlist the nominees in their disciplines or categories for presentation to the second
deliberation panel. HEcTAI
7.5. The second deliberation panel shall be composed of a different set of experts from
the first deliberation panel [three (3) experts each of the seven (7) areas/discipline] and
may include members from varying backgrounds such as critics and academicians. The
achievements of each shortlisted nominee shall be presented by one designated member
of Council of Experts. Then panel deliberates and ranks the shortlisted nominees
according to the order of precedence following the set criteria of the Order of National
Artists. In extreme cases, the Second Deliberation may add new names to the lists.
7.6. The second deliberation panel may recommend not to give award in any category if
no nominee is found deserving. The number of awardees shall also depend on the
availability of funds. All decisions and recommendations shall be in writing.
7.7. The recommendations from the Second Deliberation Panel of the National Artist
Award Council of Experts shall then be presented to the joint boards of NCCA and CCP
for final selection. The presentors shall prepare their presentation in writing together with
an audio-visual presentation or powerpoint presentation. Written interpellations/opinions
will be accepted from selected critics. The review shall be based on the ranking done by
the Second Deliberation. The voting shall be across disciplines. The National Artists will
be given the option whether to vote on all categories or on his/her particular discipline.
7.8. Proxy votes will not be allowed in the Selection Process. Designation of permanent
representatives of agencies should be made at the outset to make them regular Board
members of NCCA and thus, may be allowed to cast votes.
7.9. The list of awardees shall be submitted to the President of the Republic of the
Philippines for confirmation, proclamation and conferral.
8. PRESENTATION OF THE AWARDS
8.1. The Order of National Artists shall not be conferred more frequently than every three
(3) years.
8.2. The Order of National Artists shall be conferred by the President of the Philippines
on June 11 or any appropriate date in fitting ceremonies to be organized by the National
Artist Secretariat.
8.3. The medallion of the Order of National Artists and citation shall be given to the
honoree during the conferment ceremony. The cash award of P100,000.00 in cheque
shall be given immediately after the ceremony or at another time and place as requested
by the honoree. aDcHIC
8.4. A posthumous conferral consisting of the medallion and citation shall be given to the
family or legal heir/s of the honoree. The cash award of P75,000.00 in cheque shall be
given to the honoree's legal heir/s or a representative designated by the family
immediately after the ceremony or at another time and place as requested by the family.
(Emphases supplied.)
In 1996, the NCCA and the CCP created a National Artist Award Secretariat composed
of the NCCA Executive Director as Chairperson, the CCP President as Vice-Chairperson,
and the NCCA Deputy Executive Director, the CCP Vice-President/Artistic Director, the
NCCA National Artist Award Officer and the CCP National Artist Award Officer as
706
members. They also centralized with the NCCA all financial resources and management
for the administration of the National Artists Award. They added another layer to the
selection process to involve and allow the participation of more members of the arts and
culture sector of the Philippines in the selection of who may be proclaimed a National
Artist.
On September 19, 2003, Executive Order No. 236, s. 2003, entitled Establishing the
Honors Code of the Philippines to Create an Order of Precedence of Honors Conferred
and for Other Purposes, was issued. The National Artists Award was renamed the Order
of National Artists and raised to the level of a Cultural Order, fourth in precedence among
the orders and decorations that comprise the Honors of the Philippines. 11 Executive
Order No. 236, s. 2003, recognizes the vital role of the NCCA and the CCP in identifying
Filipinos who have made distinct contributions to arts and letters and states that the
National Artist recognition is conferred "upon the recommendation of the Cultural Center
of the Philippines and the National Commission for Culture and the Arts." 12 Executive
Order No. 236, s. 2003, further created a Committee on Honors to "assist the President
in evaluating nominations for recipients of Honors," 13 including the Order of National
Artists, and presidential awards. The Committee on Honors has been allowed to
"authorize relevant department or government agencies to maintain Honors and/or
Awards Committees to process nominations for Honors and/or Presidential Awards." 14
In this connection, Section 2.4 (A) of the Implementing Rules and Regulations 15 of
Executive Order No. 236, s. 2003, states: TDEASC
2.4: Awards Committees
There shall be two types of awards committees: the Committee on Honors and the various
awards committees in the various units of the government service.
A. The Committee on Honors
The Committee on Honors serves as a National Awards Committee. It is composed of the
following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards committees must be submitted to the Committee
on Honors via the Chancellery of Philippine Orders and State Decorations. The
Chancellery shall process nominations for the consideration of the Committee on Honors.
The Committee on Honors shall screen and recommend these nominations to the
President.
The Committee on Honors shall, as a general rule, serve as a screening committee to
ensure that nominations received from the various awards committees meet two tests:
that there has not been an abuse of discretion in making the nomination, and that the
nominee is in good standing. Should a nomination meet these criteria, a recommendation
to the President for conferment shall be made.
The President of the Philippines takes the recommendations of the Committee on Honors
in the highest consideration when making the final decision on the conferment of awards.
707
Executive Order No. 435, s. 2005, entitled Amending Section 5 (IV) of Executive Order
No. 236 Entitled "Establishing the Honors Code of the Philippines to Create an Order of
Precedence of Honors Conferred and for Other Purposes" was subsequently issued on
June 8, 2005. It amended the wording of Executive Order No. 236, s. 2003, on the Order
of National Artists and clarified that the NCCA and the CCP "shall advise the President
on the conferment of the Order of National Artists." EaIcAS
Controversy Surrounding the 2009
Order of National Artists
Petitioners alleged that on January 30, 2007, a joint meeting of the NCCA Board of
Commissioners and the CCP Board of Trustees was held to discuss, among others, the
evaluation of the 2009 Order of National Artists and the convening of the National Artist
Award Secretariat. The nomination period was set for September 2007 to December 31,
2007, which was later extended to February 28, 2008. The pre-screening of nominations
was held from January to March 2008. 16
On April 3, 2009, the First Deliberation Panel met. 17 A total of 87 nominees 18 were
considered during the deliberation and a preliminary shortlist 19 of 32 names was
compiled.
On April 23, 2009, the Second Deliberation Panel purportedly composed of an entirely
new set of Council of Experts met and shortlisted 13 out of the 32 names in the preliminary
shortlist. 20 On May 6, 2009, the final deliberation was conducted by the 30-member Final
Deliberation Panel comprised of the CCP Board of Trustees and the NCCA Board of
Commissioners and the living National Artists. 21 From the 13 names in the second
shortlist, a final list of four names was agreed upon. 22 The final list, according to rank,
follows:
Name
Art Field/Category
Number of Votes
Manuel Conde () Film and Broadcast Arts (Film)
26
Ramon Santos
Music
19
Lazaro Francisco ()
Literature
15
Federico Aguilar-Alcuaz Visual Arts
15
On May 6, 2009, a letter, signed jointly by the Chairperson of the NCCA, Undersecretary
Vilma Labrador, and the President and Artistic Director of the CCP, Mr. Nestor Jardin,
was sent to the President. 23 The letter stated, thus:
May 6, 2009
Her Excellency GLORIA MACAPAGAL-ARROYO
President of the Philippines
Malacaang Palace, Manila
Subject:2009 Order of National Artist Awardees
Dear President Arroyo:
We are respectfully submitting a recommendation of the NCCA Board of Trustees and
CCP Board of Trustees for the Proclamation of the following as 2009 Order of National
Artists: HCTEDa
708
1. Mr. MANUEL CONDE (Posthumous) Film and Broadcast Arts

2. Dr. RAMON SANTOS Music
3. Mr. LAZARO FRANCISCO (Posthumous) Literature
4. Mr. FEDERICO AGUILAR-ALCUAZ Visual Arts
The above persons were identified by experts in the various fields of arts and culture,
including living National Artists. An intensive selection process was observed following
established practice. In the past, awards were presented by the President at a Ceremony
held at the Malacaan Palace followed by a program called "Parangal" at the Cultural
Center of the Philippines. We also propose to continue with past practice of celebrating
the life and works of the four (4) Order of National Artists through an exhibit that will open
and a commemorative publication that will be released on the day of the proclamation.
We respectfully suggest, subject to Her Excellency's availability, that the Proclamation be
on June 11, 2009, if possible at the Malacaan Palace.
Thank you for your kind attention.
Very respectfully yours,
(Sgd.)
VILMA L. LABRADOR
Chairman
National Commission for Culture and the Arts
(Sgd.)
NESTOR O. JARDIN
President and Artistic Director Cultural Center of the Philippines 24
According to respondents, the aforementioned letter was referred by the Office of the
President to the Committee on Honors. Meanwhile, the Office of the President allegedly
received nominations from various sectors, cultural groups and individuals strongly
endorsing private respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas,
Francisco Maosa and Jose Moreno. The Committee on Honors purportedly processed
these nominations and invited resource persons to validate the qualifications and
credentials of the nominees. 25 SIHCDA
The Committee on Honors thereafter submitted a memorandum to then President Gloria
Macapagal-Arroyo recommending the conferment of the Order of National Artists on the
four recommendees of the NCCA and the CCP Boards, as well as on private respondents
Guidote-Alvarez, Caparas, Maosa and Moreno. Acting on this recommendation,
Proclamation No. 1823 declaring Manuel Conde a National Artist was issued on June 30,
2009. Subsequently, on July 6, 2009, Proclamation Nos. 1824 to 1829 were issued
declaring Lazaro Francisco, Federico Aguilar-Alcuaz and private respondents GuidoteAlvarez, Caparas, Maosa and Moreno, respectively, as National Artists. This was
subsequently announced to the public by then Executive Secretary Eduardo Ermita on
July 29, 2009. 26
Convinced that, by law, it is the exclusive province of the NCCA Board of Commissioners
and the CCP Board of Trustees to select those who will be conferred the Order of National
Artists and to set the standard for entry into that select group, petitioners instituted this
petition for prohibition, certiorari and injunction (with prayer for restraining order) praying
that the Order of National Artists be conferred on Dr. Santos and that the conferment of
709
the Order of National Artists on respondents Guidote-Alvarez, Caparas, Maosa and

Moreno be enjoined and declared to have been rendered in grave abuse of discretion. 27
In a Resolution 28 dated August 25, 2009, the Court issued a status quo order 29
enjoining "public respondents" "from conferring the rank and title of the Order of National
Artists on private respondents; from releasing the cash awards that accompany such
conferment and recognition; and from holding the acknowledgment ceremonies for
recognition of the private respondents as National Artists."
What is the nature and scope of the power of the President to confer the Order of the
National Artists and how should it be exercised? This is the essential issue presented in
this case. It will determine whether the proclamation of respondents as National Artists is
valid. Preliminary procedural issues on the standing of the petitioners and the propriety
of the remedies taken, 30 however, call for resolution as a prerequisite to the discussion
of the main question.
Contention of the Parties
A perusal of the pleadings submitted by the petitioners reveals that they are an
aggrupation of at least three groups, the National Artists, cultural workers and academics,
and the Concerned Artists of the Philippines (CAP). The National Artists assert an "actual
as well as legal interest in maintaining the reputation of the Order of National Artists." 31
In particular, they invoke their right to due process not to have the honor they have been
conferred with diminished by the irregular and questionable conferment of the award on
respondents Guidote-Alvarez, Caparas, Maosa and Moreno. For petitioners, this would
adversely affect their right to live a meaningful life as it detracts not only from their right
to enjoy their honor as a fruit of their lifelong labor but also from the respect of their peers.
32 SHEIDC
The cultural workers, academics and CAP claim to be Filipinos who are deeply concerned
with the preservation of the country's rich cultural and artistic heritage. As taxpayers, they
are concerned about the use of public monies for illegal appointments or spurious acts of
discretion. 33
All of the petitioners claim that former President Macapagal-Arroyo gravely abused her
discretion in disregarding the results of the rigorous screening and selection process for
the Order of National Artists and in substituting her own choice for those of the
Deliberation Panels. According to petitioners, the President's discretion to name National
Artists is not absolute but limited. In particular, her discretion on the matter cannot be
exercised in the absence of or against the recommendation of the NCCA and the CCP.
In adding the names of respondents Caparas, Guidote-Alvarez, Maosa and Moreno
while dropping Dr. Santos from the list of conferees, the President's own choices
constituted the majority of the awardees in utter disregard of the choices of the NCCA
and the CCP and the arts and culture community which were arrived at after a long and
rigorous process of screening and deliberation. Moreover, the name of Dr. Santos as
National Artist for Music was deleted from the final list submitted by the NCCA and the
CCP Boards without clearly indicating the basis thereof. For petitioners, the President's
discretion to name National Artists cannot be exercised to defeat the recommendations
made by the CCP and NCCA Boards after a long and rigorous screening process and
with the benefit of expertise and experience. The addition of four names to the final list
submitted by the Boards of the CCP and the NCCA and the deletion of one name from
the said list constituted a substitution of judgment by the President and a unilateral
reconsideration without clear justification of the decision of the First, Second and Final
Deliberation Panels composed of experts. 34
Petitioners further argue that the choice of respondent Guidote-Alvarez was illegal and
unethical because, as the then Executive Director of the NCCA and presidential adviser
on culture and arts, she was disqualified from even being nominated. 35 Moreover, such
710
action on the part of the former President constituted grave abuse of discretion as it gave
preferential treatment to respondent Guidote-Alvarez by naming the latter a National Artist
despite her not having been nominated and, thus, not subjected to the screening process
provided by the rules for selection to the Order of National Artists. Her inclusion in the list
by the President represented a clear and manifest favor given by the President in that
she was exempted from the process that all other artists have to undergo. According to
petitioners, it may be said that the President used a different procedure to qualify
respondent Guidote-Alvarez. This was clearly grave abuse of discretion for being
manifest and undue bias violative of the equal protection clause. 36
Respondent Caparas refutes the contention of the petitioning National Artists and insists
that there could be no prejudice to the latter. They remain to be National Artists and
continue to receive the emoluments, benefits and other privileges pertaining to them by
virtue of that honor. On the other hand, all the other petitioners failed to show any material
and personal injury or harm caused to them by the conferment of the Order of National
Artists on respondents Guidote-Alvarez, Caparas, Maosa and Moreno. The rule on
standing may not be relaxed in favor of the petitioners as no question of constitutionality
has been raised and no issue of transcendental importance is involved. 37 DTaSIc
Respondent Caparas further argues that the remedies of prohibition and injunction are
improper as the act sought to be enjoined the declaration of respondents GuidoteAlvarez, Caparas, Maosa and Moreno as National Artists had already been
consummated. In particular, respondent Caparas was already proclaimed National Artist
through Proclamation No. 1827 issued on July 6, 2009. 38
On the merits, respondent Caparas contends that no grave abuse of discretion attended
his proclamation as National Artist. The former President considered the respective
recommendations of the NCCA and the CCP Boards and of the Committee on Honors in
eventually declaring him (Caparas) as National Artist. The function of the NCCA and the
CCP Boards is simply to advise the President. The award of the Order of National Artists
is the exclusive prerogative of the President who is not bound in any way by the
recommendation of the NCCA and the CCP Boards. The implementing rules and
regulations or guidelines of the NCCA cannot restrict or limit the exclusive power of the
President to select the recipients of the Order of National Artists. 39
For her part, in a letter 40 dated March 11, 2010, respondent Guidote-Alvarez manifested
that she was waiving her right to file her comment on the petition and submitted herself
to the Court's discretion and wisdom.
Respondent Maosa manifested that his creations speak for themselves as his
contribution to Filipino cultural heritage and his worthiness to receive the award.
Nonetheless, he expressed his conviction that the Order of National Artists is not a right
but a privilege that he would willingly relinquish should he be found not worthy of it. 41
Respondent Moreno did not file any pleading despite being given several opportunities to
do so. Hence, the Court dispensed with his pleadings. 42
In a Resolution dated July 12, 2011, this Court gave due course to the petition and
required the parties to file their respective memoranda. 43 Respondent Caparas filed his
memorandum on September 8, 2011, 44 the CCP filed its memorandum on September
19, 2011, 45 respondent Maosa on September 20, 2011, 46 and the Office of the
Solicitor General filed a manifestation stating that it is adopting its comment as its
memorandum on September 21, 2011. 47 Respondent Moreno failed to file a
Memorandum, hence, the Court resolved to dispense with the same. 48 Petitioners filed
their Memorandum on May 14, 2012. 49 ACIESH
711
On the other hand, the original position of the Office of the Solicitor General (OSG) was
similar to that of respondent Caparas. 50 In a subsequent manifestation, 51 however, the
OSG stated that the current Board of Commissioners of the NCCA agree with the
petitioners that the President cannot honor as a National Artist one who was not
recommended by the joint Boards of the NCCA and the CCP. The implementing rules
and regulations of Executive Order No. 236, s. 2003, recognized the binding character of
the recommendation of the NCCA and the CCP Boards and limited the authority of the
Committee on Honors to the determination that (1) there has been no grave abuse of
discretion on the part of the NCCA and the CCP Boards in making the nomination, and
(2) the nominee is in good standing. Where a nomination meets the said two criteria, a
recommendation to the President to confer the award shall be made. 52
The OSG further argued that, while the President exercises control over the NCCA and
the CCP, the President has the duty to faithfully execute the laws, including the NCCACCP guidelines for selection of National Artists and the implementing rules of Executive
Order No. 236, s. 2003. Moreover, the laws recognize the expertise of the NCCA and the
CCP in the arts and tasked them to screen and select the artists to be conferred the Order
of National Artists. Their mandate is clear and exclusive as no other agency possesses
such expertise. 53
The OSG also assailed the former President's choice of respondent Guidote-Alvarez for
being contrary to Republic Act No. 7356. 54 Section 11 of the said law provides:
Sec. 11. Membership Restrictions. During his/her term as member of the Commission,
a Commissioner shall not be eligible for any grant, or such other financial aid from the
Commission as an individual: Provided, however, That he/she may compete for grants
and awards on the same level as other artists one (1) year after his/her term shall have
expired.
The omission of the word "award" in the first portion of the above provision appears to be
unintentional as shown by the proviso which states that a member may compete for grants
and awards only one year after his or her term shall have expired. As such, respondent
Guidote-Alvarez is restricted and disqualified from being conferred the 2009 Order of
National Artists. 55
The Court's Ruling
Standing of the Petitioners
Standing is the determination of whether a specific person is the proper party to bring a
matter to the court for adjudication. 56 The gist of the question of standing is whether a
party alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions. 57 TCDHIc
The parties who assail the constitutionality or legality of a statute or an official act must
have a direct and personal interest. They must show not only that the law or any
governmental act is invalid, but also that they sustained or are in immediate danger of
sustaining some direct injury as a result of its enforcement, and not merely that they suffer
thereby in some indefinite way. They must show that they have been or are about to be
denied some right or privilege to which they are lawfully entitled or that they are about to
be subjected to some burdens or penalties by reason of the statute or act complained of.
58
In this case, we find that the petitioning National Artists will be denied some right or
privilege to which they are entitled as members of the Order of National Artists as a result
of the conferment of the award on respondents Guidote-Alvarez, Caparas, Maosa and
Moreno. In particular, they will be denied the privilege of exclusive membership in the
Order of National Artists.
712
In accordance with Section 2 (a) 59 of Executive Order No. 236, s. 2003, the Order of
National Artists is "an exclusive association of honored individuals." To ensure the
exclusivity of the membership in the Order, a rigid nomination and screening process has
been established with different sets of renowned artists and respected art critics invited
to sit as the Council of Experts for the First and Second Deliberation Panels. Moreover,
all living National Artists are given a voice on who should be included in their exclusive
club as they automatically become members of the Final Deliberation Panel that will vote
on who should be included in the final list to be submitted to the President for conferment
of the Order of National Artists. To allow the untrammeled discretion and authority of the
President to confer the Order of National Artists without regard to the stringent screening
and rigorous selection process established by the NCCA and the CCP will diminish, if not
negate, the exclusive nature of the said Order. It will unduly subject the selection and
conferment of the Order of National Artists to politics rather than to principles and
procedures. It will subvert the transparent and rigorous process and allow entry to the
exclusive Order of National Artists through a secret backdoor of lobbying, back
channeling and political accommodation.
Among the other petitioners, Prof. Gemino Abad presents a unique valid personal and
substantial interest. Like respondents Caparas, Maosa and Moreno, he was among the
87 nominees for the 2009 Order of National Artists. Like respondent Moreno, he made it
to the preliminary shortlist. As he did not make it to the second shortlist, he was not
considered by the Final Deliberation Panel, more so by the former President.
It should be recalled too that respondent Guidote-Alvarez was disqualified to be
nominated for being the Executive Director of the NCCA at that time while respondents
Maosa and Caparas did not make it to the preliminary shortlist and respondent Moreno
was not included in the second shortlist. Yet, the four of them were treated differently and
considered favorably when they were exempted from the rigorous screening process of
the NCCA and the CCP and conferred the Order of National Artists. The Committee on
Honors and the former President effectively treated respondents Guidote-Alvarez,
Caparas, Maosa and Moreno as a preferred class. The special treatment accorded to
respondents Guidote-Alvarez, Caparas, Maosa and Moreno fails to pass rational
scrutiny. 60 No real and substantial distinction between respondents and petitioner Abad
has been shown that would justify deviating from the laws, guidelines and established
procedures, and placing respondents in an exceptional position. The undue classification
was not germane to the purpose of the law. Instead, it contradicted the law and wellestablished guidelines, rules and regulations meant to carry the law into effect. While
petitioner Abad cannot claim entitlement to the Order of National Artists, 61 he is entitled
to be given an equal opportunity to vie for that honor. In view of the foregoing, there was
a violation of petitioner Abad's right to equal protection, an interest that is substantial
enough to confer him standing in this case. ADHcTE
As regards the other concerned artists and academics as well as the CAP, their claim of
deep concern for the preservation of the country's rich cultural and artistic heritage, while
laudable, falls short of the injury in fact requirement of standing. Their assertion
constitutes a generalized grievance shared in a substantially equal measure by all or a
large class of citizens. 62 Nor can they take refuge in their status as taxpayers as the
case does not involve any illegal appropriation or taxation. A taxpayer's suit is proper only
when there is an exercise of the spending or taxing power of the Congress. 63
Nonetheless, as a reading of the petition shows that it has advanced an issue which
deserves the attention of this Court in view of its seriousness, novelty and weight as
precedent, it behooves the Court to relax the rules on standing and to resolve the issue
presented before it. 64 Moreover, this issue is of paramount interest, 65 which further
justifies a liberal stance on standing.
Propriety of the Remedies
713
The present action is a petition for prohibition, certiorari, injunction, restraining order and
all other legal, just and equitable reliefs.
It has been held that the remedies of prohibition and injunction are preventive and, as
such, cannot be availed of to restrain an act that is already fait accompli. 66 Where the
act sought to be prohibited or enjoined has already been accomplished or consummated,
prohibition or injunction becomes moot. 67
Nevertheless, even if the principal issue is already moot, this Court may still resolve its
merits for the future guidance of both bench and bar. Courts will decide a question
otherwise moot and academic if it is "capable of repetition, yet evading review." 68
It is an opportune time for the Court to assert its role as republican schoolmaster, 69 a
teacher in a vital national seminar. 70 There are times when the controversy is of such
character that, to prevent its recurrence and to assure respect for constitutional
limitations, this Court must pass on the merits of a case. 71 This is one such case. More
than being a teaching moment, this is not the first time that the Order of National Artists
was conferred in the manner that is being assailed in this case. 72 If not addressed here
and now, there is great probability that the central question involved in this case will haunt
us again in the future. Every President may invoke absolute presidential prerogative and
thrust upon us National Artists after his or her own heart, in total disregard of the advise
of the CCP and the NCCA and the voice of the community of artists, resulting to repeated
episodes of indignation and uproar from the artists and the public.
Furthermore, if not corrected, such an act would give rise to mischief and dangerous
precedent whereby those in the corridors of power could avoid judicial intervention and
review by merely speedily and stealthily completing the commission of an illegality. 73
TEIHDa
In any event, the present petition is also for certiorari and there is no procedural bar for
the Court to pass upon the question of whether the proclamations of respondents
Guidote-Alvarez, Caparas, Maosa and Moreno as National Artists were attended by
grave abuse of presidential discretion.
Limits of the President's Discretion
The respective powers of the CCP Board of Trustees and of the NCCA Board of
Commissioners with respect to the conferment of the Order of National Artists are clear.
They jointly administer the said award and, upon their recommendation or advice, the
President confers the Order of National Artists.
To "recommend" and to "advise" are synonymous. To "recommend" is "to advise or
counsel." 74 To "advise" is "to give an opinion or counsel, or recommend a plan or course
of action; also to give notice. To encourage, inform or acquaint." 75 "Advise" imports that
it is discretionary or optional with the person addressed whether he will act on such advice
or not. 76 This has been clearly explained in Cojuangco, Jr. v. Atty. Palma: 77
The "power to recommend" includes the power to give "advice, exhortation or
indorsement, which is essentially persuasive in character, not binding upon the party to
whom it is made." (Emphasis supplied.)
Thus, in the matter of the conferment of the Order of National Artists, the President may
or may not adopt the recommendation or advice of the NCCA and the CCP Boards. In
other words, the advice of the NCCA and the CCP is subject to the President's discretion.
Nevertheless, the President's discretion on the matter is not totally unfettered, nor the role
of the NCCA and the CCP Boards meaningless.
714
Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is
reined in to keep it from straying. In its classic formulation, "discretion is not unconfined
and vagrant" but "canalized within banks that keep it from overflowing." 78
The President's power must be exercised in accordance with existing laws. Section 17,
Article VII of the Constitution prescribes faithful execution of the laws by the President:
Sec. 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied.)
cSaCDT
The President's discretion in the conferment of the Order of National Artists should be
exercised in accordance with the duty to faithfully execute the relevant laws. The faithful
execution clause is best construed as an obligation imposed on the President, not a
separate grant of power. 79 It simply underscores the rule of law and, corollarily, the
cardinal principle that the President is not above the laws but is obliged to obey and
execute them. 80 This is precisely why the law provides that "[a]dministrative or executive
acts, orders and regulations shall be valid only when they are not contrary to the laws or
the Constitution." 81
In this connection, the powers granted to the NCCA and the CCP Boards in connection
with the conferment of the Order of National Artists by executive issuances were
institutionalized by two laws, namely, Presidential Decree No. 208 dated June 7, 1973
and Republic Act No. 7356. In particular, Proclamation No. 1144 dated May 15, 1973
constituted the CCP Board as the National Artists Awards Committee and tasked it to
"administer the conferment of the category of National Artist" upon deserving Filipino
artists with the mandate to "draft the rules to guide its deliberations in the choice of
National Artists":
Proclamation No. 1001 dated April 27, 1972, creating the Award and Decoration of
National Artist, is hereby amended by creating a National Artists Awards Committee,
hereinafter to administer the conferment of the category of National Artist upon those
deserving thereof. The Committee, which shall be composed of members of the Board of
Trustees of the Cultural Center of the Philippines, shall organize itself immediately and
shall draft the rules to guide its deliberations in the choice of National Artists, to the end
that those who have created a body of work in the arts and in letters capable of
withstanding the test of time will be so recognized. (Emphases supplied.)
The authority of the CCP Board of Trustees as National Artists Awards Committee was
reiterated in Presidential Decree No. 208 dated June 7, 1973.
The function of the CCP Board of Trustees as National Artists Awards Committee has
been recognized under Republic Act No. 7356:
Sec. 18. The National Cultural Agencies. The [NCCA] shall coordinate with the national
cultural agencies including but not limited to the Cultural Center of the Philippines, the
Institute of Philippine Languages, the National Historical Institute, the National Library,
the National Museum, the Records Management and Archives Office. However, they shall
continue operating under their respective charters or as provided by law where provisions
therein are not inconsistent with the provisions of this Act. They shall serve as the national
repository and/or showcase, as the case may be, of the best of Philippine culture and
arts. For this purpose, these agencies shall submit periodic reports, including
recommendations to the [NCCA]. (Emphasis supplied.) TAaIDH
On the other hand, the NCCA has been given the following mandate in connection with
the conferment of cultural or arts awards:
715
Sec. 12. Mandate. The Commission is hereby mandated to formulate and implement
policies and plans in accordance with the principles stated in Title 1 of this Act.
(a) To encourage the continuing and balanced development of a pluralistic culture by the
people themselves, it shall:
xxx xxx xxx
(4) extend recognition of artistic achievement through awards, grants and services to
artists and cultural groups which contribute significantly to the Filipino's cultural legacy;
xxx xxx xxx
Sec. 13. Powers and Functions. To carry out its mandate, the Commission shall
exercise the following powers and functions:
xxx xxx xxx
(j) advise the President on matters pertaining to culture and the arts, including the creation
of a special decoration or award, for persons who have significantly contributed to the
development and promotion of Philippine culture and arts;
(k) promulgate rules, regulations and undertake any and all measures as may be
necessary to implement this Act[.] (Emphases supplied.)
By virtue of their respective statutory mandates in connection with the conferment of the
National Artist Award, the NCCA and the CCP decided to work together and jointly
administer the National Artist Award. They reviewed the guidelines for the nomination,
selection and administration of the National Artist Award, created a National Artist Award
Secretariat, centralized all financial resources and management for the administration of
the National Artist Award, and added another layer to the selection process so that more
members of the arts and culture sector of the Philippines may be involved and participate
in the selection of National Artists.
We have held that an administrative regulation adopted pursuant to law has the force and
effect of law. 82 Thus, the rules, guidelines and policies regarding the Order of National
Artists jointly issued by the CCP Board of Trustees and the NCCA pursuant to their
respective statutory mandates have the force and effect of law. Until set aside, they are
binding upon executive and administrative agencies, 83 including the President
himself/herself as chief executor of laws. In this connection, Section 2.5 (A) of the
Implementing Rules and Regulations 84 of Executive Order No. 236, s. 2003 provides:
ADaEIH
2.5: General Guidelines for Awards Committees
A. National Orders of Cultural and Scientific Merit
The existing modalities of the NCCA for selecting recipients for the Order of National
Artists, and the Gawad sa Manlilikha ng Bayan, and of the NAST for selecting recipients
of the Order of National Scientists, shall remain in force. (Emphases supplied.)
Section 2.4 (A) of the same implementing rules further states:
2.4: Awards Committees
There shall be two types of awards committees: the Committee on Honors and the various
awards committees in the various units of the government service.
716
A. The Committee on Honors

The Committee on Honors serves as a National Awards Committee. It is composed of the
following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards committees must be submitted to the Committee
on Honors via the Chancellery of Philippine Orders and State Decorations. The
Chancellery shall process nominations for the consideration of the Committee on Honors.
The Committee on Honors shall screen and recommend these nominations to the
President.
The Committee on Honors shall, as a general rule, serve as a screening committee to
ensure that nominations received from the various awards committees meet two tests:
that there has not been an abuse of discretion in making the nomination, and that the
nominee is in good standing. Should a nomination meet these criteria, a recommendation
to the President for conferment shall be made.
The President of the Philippines takes the recommendations of the Committee on Honors
in the highest consideration when making the final decision on the conferment of awards.
Pursuant to the above provision of the implementing rules of Executive Order No. 236, s.
2003, the authority of the Committee on Honors is limited to determining whether the
nominations submitted by a particular awards committee, in this case, the joint NCCA and
CCP Boards, have been tainted by abuse of discretion, and whether the nominees are in
good standing. Should the nominations meet these two criteria, the Committee on Honors
shall make a recommendation to the President for conferment of the Order of National
Artists. AECcTS
In view of the various stages of deliberation in the selection process and as a
consequence of his/her duty to faithfully enforce the relevant laws, the discretion of the
President in the matter of the Order of National Artists is confined to the names submitted
to him/her by the NCCA and the CCP Boards. This means that the President could not
have considered conferment of the Order of National Artists on any person not considered
and recommended by the NCCA and the CCP Boards. That is the proper import of the
provision of Executive Order No. 435, s. 2005, that the NCCA and the CCP "shall advise
the President on the conferment of the Order of National Artists." Applying this to the
instant case, the former President could not have properly considered respondents
Guidote-Alvarez, Caparas, Maosa and Moreno, as their names were not recommended
by the NCCA and the CCP Boards. Otherwise, not only will the stringent selection and
meticulous screening process be rendered futile, the respective mandates of the NCCA
and the CCP Board of Trustees under relevant laws to administer the conferment of Order
of National Artists, draft the rules and regulations to guide its deliberations, formulate and
implement policies and plans, and undertake any and all necessary measures in that
regard will also become meaningless.
Furthermore, with respect to respondent Guidote-Alvarez who was the Executive Director
of the NCCA at that time, the Guidelines expressly provides:
717
6. 5NCCA and CCP Board members and consultants and NCCA and CCP officers and
staff are automatically disqualified from being nominated. 85
Respondent Guidote-Alvarez could not have even been nominated, hence, she was not
qualified to be considered and conferred the Order of National Artists at that time. The
President's discretion on the matter does not extend to removing a legal impediment or
overriding a legal restriction.
From the foregoing, the advice or recommendation of the NCCA and the CCP Boards as
to the conferment of the Order of National Artists on Conde, Dr. Santos, Francisco and
Alcuaz was not binding on the former President but only discretionary or optional for her
whether or not to act on such advice or recommendation. Also, by virtue of the power of
control, the President had the authority to alter or modify or nullify or set aside such
recommendation or advice. It was well within the President's power and discretion to
proclaim all, or some or even none of the recommendees of the CCP and the NCCA
Boards, without having to justify his or her action. Thus, the exclusion of Santos did not
constitute grave abuse of discretion on the part of the former President.
The conferment of the Order of National Artists on respondents Guidote-Alvarez,
Caparas, Maosa and Moreno was an entirely different matter. cCSDaI
There is grave abuse of discretion when an act is (1) done contrary to the Constitution,
the law or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of
malice, ill will or personal bias. 86
There was a violation of the equal protection clause of the Constitution 87 when the former
President gave preferential treatment to respondents Guidote-Alvarez, Caparas, Maosa
and Moreno. The former President's constitutional duty to faithfully execute the laws and
observe the rules, guidelines and policies of the NCCA and the CCP as to the selection
of the nominees for conferment of the Order of National Artists proscribed her from having
a free and uninhibited hand in the conferment of the said award. The manifest disregard
of the rules, guidelines and processes of the NCCA and the CCP was an arbitrary act that
unduly favored respondents Guidote-Alvarez, Caparas, Maosa and Moreno. The
conferment of the Order of National Artists on said respondents was therefore made with
grave abuse of discretion and should be set aside.
While the Court invalidates today the proclamation of respondents Guidote-Alvarez,
Caparas, Maosa and Moreno as National Artists, such action should not be taken as a
pronouncement on whether they are worthy to be conferred that honor. Only the
President, upon the advise of the NCCA and the CCP Boards, may determine that. The
Court simply declares that, as the former President committed grave abuse of discretion
in issuing Proclamation Nos. 1826 to 1829 dated July 6, 2009, the said proclamations are
invalid. However, nothing in this Decision should be read as a disqualification on the part
of respondents Guidote-Alvarez, Caparas, Maosa and Moreno to be considered for the
honor of National Artist in the future, subject to compliance with the laws, rules and
regulations governing said award.
WHEREFORE, the petition is hereby GRANTED in PART. Proclamation Nos. 1826 to
1829 dated July 6, 2009 proclaiming respondents Cecile Guidote-Alvarez, Carlo Magno
Jose Caparas, Francisco Maosa, and Jose Moreno, respectively, as National Artists are
declared INVALID and SET ASIDE for having been issued with grave abuse of discretion.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Peralta, Bersamin, Abad Villarama, Jr., Perez,
Mendoza, Reyes and Perlas-Bernabe, JJ., concur.
718
Brion, J., is on leave.

Del Castillo and Leonen, JJ., took no part.
||| (Almario v. Executive Secretary, G.R. No. 189028, [July 16, 2013], 714 PHIL 127-171)
Annotation REVISITING FUNDAMENTAL CONCEPTS IN CONSTITUTIONA LAW
663 SCRA 661 (2012)
ANNOTATION
REVISITING FUNDAMENTAL CONCEPTS
IN CONSTITUTIONAL LAW
By
DAVID ROBERT C. AQUINO, CSEE*
___________________
The case under annotationBureau of Customs Employees Association (BOCEA) vs.
Teves1allowed the High Court the opportunity to revisit several fundamental concepts
in Constitutional Law which to date have been relegated to mere catch phrases in our
local political history.
Phrases such as due process, equal protection, separation of powers, and even the
bill of attainder have, in recent years been relegated to mere bywords used by
politicians, the media and even the ordinary man on the street. Thus, it is now deemed
part of ones daily milieu to hear these phrases uttered by everyonebe it on television,
in a newspaper, on radio or in daily everyday conversation.
Although the focal issue of the case under annotation is the constitutionality or
unconstitutionality of the Attrition Law, the grounds raised and relied by Petitioner were
basic concepts in Constitutional Law. Thus, unlike the usual fare of reading interwoven
concepts that stretch its argument to fit their theory of the case, the case at hand provides
us with a fresh outlook on such conceptsreminiscent of ones initial foray into legal
studies.
This humble annotation, therefore, revisits four (4) fundamental and well-known concepts
in Constitutional Lawdue process, equal protection, bill of attainder and separation of
powers. Interestingly enough, the petitioners in the case under annotation chose concepts
found in just one article of the Constitutionthe Bill of Rights.2 Their choice of relying on
the Bill of Rights is not surprising considering this part of the Constitution is dedicated
primarily to limit the awesome powers of the government and serves as a check on its
unreasonable use and application.
Serving to offset the tremendous powers of the State, the Bill of Rights serves to protect
the individual liberties of its citizens. It is a statement of individual liberties which citizens,
residents, and certain sojourners in the country enjoy against exertions of government
power.3 The Bill of Rights does not concern itself with the relation between a private
individual and another individualthe Bill of Rights is a charter of liberties for the
individual and a limitation upon the power of the State.4
In a leading Philippine caseRubi vs. Provincial Board5liberty as guaranteed by the
Constitution was defined by Justice Malcolm to include the right to exist and the right to
be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is deemed to
embrace the right of man to enjoy the facilities with which he has been endowed by his
Creator, subject only to such restraint as are necessary for the common welfare.6
The Supreme Court in Morfe vs. Mutuc,7 citing several legal luminaries, continued to state
thatthe liberty to be safeguarded is, as pointed out by Chief Justice Hughes, liberty in
a social organization, implying the absence of arbitrary restraint not immunity from
reasonable regulations and prohibitions imposed in the interest of the community. It was
Lintons view that to belong to a society is to sacrifice some measure of individual liberty,
no matter how slight the restraints which the society consciously imposes. The above
statement from Linton, however, should be understood in the sense that liberty, in the
719
interest of public health, public order or safety, of general welfare, in other words through
the proper exercise of the police power, may be regulated. The individual though, as
Justice Cardozo pointed out, has still left a domain of free activity that cannot be touched
by government or law at all, whether the command is specially against him or generally
against him and others.
Thus, it can be said that the Bill of Rights serves as the bedrock of constitutional
governmentcontained as it is in Article III of the Constitution, and occupies a position
of primacy in the fundamental law way above the articles on government power.8 The
paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The
language carries with it all the applicable jurisprudence of great English and American
Constitutional cases.9
These provisions therefore are primarily limitations on government, declaring rights that
exist without any governmental grant, that may not be taken away by government and
that government has the duty to protect.
The Bill of Rights under the 1987 Constitution begins with the Due Process and Equal
Protection clauses. Observe that the rest of the rights simply expands the substantive
and procedural requirements of the first section of Article III.
Due Process
It should be noted that the concept of due process as well as equal protection are both
found in Section 1, Article III of the 1987 Philippine Constitution.
Simply put, due process guarantees that no person shall be deprived of life, liberty or
property without giving the person an opportunity to be heard and defend himself. Thus,
before a person is permanently incarcerated, there must be a trial. Same is true before
private property is appropriated by the State for public use.
To reiterate, the most basic tenet espoused in due process is the right to be heard.10 To
state it differently, it is the right to be given an opportunity to be heard.
A famous case still cited today views due process as one which hears before it
condemns; which proceeds upon inquiry, and renders judgment only after trial.11 It is
responsiveness to the supremacy of reason and obedience to the dictates of justice.12 It
is the embodiment of sporting idea of fair play.13
It should be noted that the first section of this article dealing with due process and equal
protection provides a blanket protection to the citizen. It has been observed that even in
the absence of all the other provisions under the Bill of Rightsthe first section alone
would provide adequate protection of a persons rights.
The due process of law clause of the Constitution must be understood to mean that no
person shall be deprived by any form of legislation or governmental action of life, liberty,
or property, except as a consequence of some judicial proceeding, appropriately and
legally conducted. Stated differently, due process of law simply means that before a man
can be deprived of his life, liberty or property, he must be given an opportunity to defend
himself.14 When one speaks of due pro-cess of law, a distinction must be made between
matters of procedure and matters of substanceprocedural due process refers to the
method or manner by which the law is enforced, while substantive due process requires
that the law itself, not merely the procedures by which the law would be enforced, is fair,
reasonable, and just.15
Moreover, due process of law implies that whenever, in a judicial proceeding, a
judgment is rendered by a court of justice affecting the liberty or condemning the property
of another person, he is entitled to have reasonable notice of such procedure, trial or
contest.16
Equal Protection
This simply refers to the equality in the enjoyment of similar rights and privileges granted
by law.17 Phrased differently, the equal protection clause under the Constitution means
that no person or class of persons shall be deprived of the same protection of laws which
is enjoyed by other persons or other classes in the same place and in like
circumstances.18
Moreover, it is well settled that the equal protection clause applies only to persons or
things identically situated and does not bar a reasonable classification of the subjects of
legislation.
720
A classification is reasonable where: (1) it is based upon substantial distinctions which

make real differences: (2) these are germane to the purpose of the law; (3) the
classification applies, not only to present conditions, but, also, to future conditions which
are substantially identical to those of the present; and (4) the classification applies,
equally to all those who belong to the same class.19 This is the argument which the High
Court used to rebut the argument propounded by the petitioners in the case under
annotation. While it is true that equal protection guarantees a uniform or equal treatment
to all, it, however, admits of classifications to which the petitioners belong.
In one landmark case, the Supreme Court had the occasion to define equal protection in
this wise: To all persons and things similarly situated, the law shall be applied equally,
that is to be treated alike, both as to right conferred and responsibilities imposed.20
Note, however, that the Supreme Court had also warned litigants that equal protection
is not a talismanic formula at the mere invocation of which a party to a lawsuit can rightfully
expect that success will crown his efforts.21
The law is anything but that. It proceeded to declare that before this argument can be
appreciated it has to be specially pleaded, insisted upon, and adequately argued.
Bill of Attainder
A bill of attainder is a legislative act which convicts a person of, and punishes him for a
crime without the benefit of a judicial trial.
In an old case, the Supreme Court defined a bill of attainder as a legislative act which
inflicts punishment without trial. Its essence is the substitution of a legislative for a judicial
determination of guilt. The constitutional ban against bills of attainder serves to implement
the principle of separation of powers by confining legislatures to rule-making and thereby
forestalling legislative usurpation of the judicial function.
History in perspective, bills of attainder were employed to suppress unpopular causes
and political minorities, and it is against this evil that the constitutional prohibition is
directed. The singling out of a definite class, the imposition of a burden on it, and a
legislative intent, suffice to stigmatize a statute as a bill of attainder.22
Within the meaning of the Constitution, bills of attainder include bills of pains and
penalties. In these cases the legislative body, in addition to its legitimate functions,
exercises the powers and office of judge; it assumes, in the language of the textbooks,
judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or
safeguards of trial; it determines the sufficiency of the proofs produced, whether
conformable to the rules of evidence or otherwise; and it fixes the degree of punishment
in accordance with its own notions of the enormity of the offense.23
Separation of Powers
Separation of powers refers to the relationship between the three (3) branches of
governmentthe executive, the legislative, and the judiciary.
Each branch is considered as co-equal with each other but whose functions are
interwoven and interconnected. While admittedly, the executive and the legislative,
seemingly have more powers or is more pro-active in the discharge of its functions and
responsibilities under the Constitution, it is the judiciary, however, on whose shoulders
the Constitution has reposed the power to check the excesses of the other more
powerful branches. This is called the power of judicial review. A provision which has
been introduced by the 1987 Constitution is a definition, for the first time in our
fundamental law, of the term judicial power, as such authority and duty of courts of
justice to settle actual controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave abuse of discretion,
amounting to lack or excess of jurisdiction, on the part of any branch or instrumentality of
the Government.24
As the Constitution vests judicial power in one Supreme Court and in such lower courts
as may be established by lawjudicial power, by its nature, is the power to hear and
decide causes pending between parties who have the right to sue and be sued in the
courts of law and equity.25 Although holding neither purse nor sword and so regarded as
the weakest of the three departments of the government, the judiciary is nonetheless
vested with the power to annul the acts of either the legislative or the executive or of both
when not conformable to the fundamental law.
721
This is the reason for what some quarters call it the doctrine of judicial supremacy. Even
so, this power is not lightly assumed or readily exercised. The doctrine of separation of
powers imposes upon the courts a proper restraint, born of the nature of their functions
and of their respect for the other departments, in striking down the acts of the legislative
and the executive as unconstitutional.26
The ruling made by the High Court in the case under annotation is illuminating, it states:
the principle of separation of powers ordains that each of the three great branches of
constitutionally allocated sphere.27
Although the petition failed to convince the High Court, the case gave it the opportunity
to take a fresh look at age-old concepts that have been enshrined in our fundamental law.
It can be said that these fundamental concepts have weathered the test of time,
technological advancement, political restructuring and social development. It has, for all
intents and purposes, serve as unwavering guideposts for future generations as well as
a beacon shining a light for our political tomorrow.
o0o
722

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ATTY. DJUMEIL GERARD P.

TINAMPAY CASE LIST

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as Admission Committees of the universities and institutions of higher learning and to

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4.ID.; SCHOOLS; OPERATION OF A SCHOOL NOT AN INHERENT RIGHT. No

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12.ID.; ID.; NATURE OF FUNCTIONS OF SCHOOLS. The educational institutions

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is academic freedom? Briefly put, it is the freedom of professionally qualified persons to

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devoid of any discretion as to whom to admit or reject. Education, especially higher

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1. Academic Freedom Generally Defined

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LEE (EDD/94623250) and RICHARD V. REVERENTE (AB-MGT/9153837) guilty of

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2. Barring the enrolment of petitioner and petitioners-in-intervention in the courses offered

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to be reinstated, while other private respondents were to be excluded. 38 The Resolution

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It is obvious to Us that CHED Resolution No. 181-96 is immediately executory in

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advancement of learning and research, the development of responsible and effective

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Ang pagkakasala ng private respondents na sina Bungubung, Reverente at Valdes, Jr.

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II. The power of the BOR to

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is not exclusive. CSC has

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Regulations for Private Schools when it recognized the petitioners to be merely on