I.

IN GENERAL
Political Law Defined
People v. Perfecto, 43 Phil. 887, 897 [1922]

G.R. No. L-18463 October 4,

1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GREGORIO PERFECTOR, defendant-appellant.

Alfonso E. Mendoza and the appellant in behalf of the latter.

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

The important question is here squarely presented of whether article 256 of

the Spanish Penal Code, punishing "Any person who, by . . . writing, shall
defame, abuse, or insult any Minister of the Crown or other person in
authority . . .," is still in force.

About August 20, 1920, the Secretary of the Philippine Senate, Fernando
M. Guerrero, discovered that certain documents which constituted the
records of testimony given by witnesses in the investigation of oil
companies, had disappeared from his office. Shortly thereafter, the
Philippine Senate, having been called into special session by the Governor-
General, the Secretary for the Senate informed that body of the loss of the
documents and of the steps taken by him to discover the guilty party. The
day following the convening of the Senate, September 7, 1920, the
newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article
reading as follows:

Half a month has elapsed since the discovery, for the first time, of the
scandalous robbery of records which were kept and preserved in the iron
safe of the Senate, yet up to this time there is not the slightest indication
that the author or authors of the crime will ever be discovered.
To find them, it would not, perhaps, be necessary to go out of the Sente
itself, and the persons in charge of the investigation of the case would not
have to display great skill in order to succeed in their undertaking, unless
they should encounter the insuperable obstacle of offical concealment.

In that case, every investigation to be made would be but a mere comedy

and nothing more.

After all, the perpetration of the robbery, especially under the

circumstances that have surrounded it, does not surprise us at all.

The execution of the crime was but the natural effect of the environment of
the place in which it was committed.

How many of the present Senators can say without remorse in their
conscience and with serenity of mind, that they do not owe their victory to
electoral robbery? How may?

The author or authors of the robbery of the records from the said iron safe
of the Senate have, perhaps, but followed the example of certain Senators
who secured their election through fraud and robbery.

The Philippine Senate, in its session of September 9, 1920, adopted a

resolution authorizing its committee on elections and privileges to report as
to the action which should be taken with reference to the article published
in La Nacion. On September 15, 1920, the Senate adopted a resolution
authorizing the President of the Senate to indorse to the Attorney-General,
for his study and corresponding action, all the papers referring to the case
of the newspaper La Nacion and its editor, Mr. Gregorio Perfecto. As a
result, an information was filed in the municipal court of the City of Manila
by an assistant city fiscal, in which the editorial in question was set out and
in which it was alleged that the same constituted a violation of article 256 of
the Penal Code. The defendant Gregorio Perfecto was found guilty in the
municipal court and again in the Court of First Instance of Manila.

During the course of the trial in the Court of First Instance, after the
prosecution had rested, the defense moved for the dismissal of the case.
On the subject of whether or not article 256 of the Penal Code, under which
the information was presented, is in force, the trial judge, the Honorable
George R. Harvey, said:
This antiquated provision was doubtless incorporated into the Penal Code
of Spain for the protection of the Ministers of the Crown and other
representatives of the King against free speech and action by Spanish
subjects. A severe punishment was prescribed because it was doubtless
considered a much more serious offense to insult the King's representative
than to insult an ordinary individual. This provision, with almost all the other
articles of that Code, was extended to the Philippine Islands when under
the dominion of Spain because the King's subject in the Philippines might
defame, abuse or insult the Ministers of the Crown or other representatives
of His Majesty. We now have no Ministers of the Crown or other persons in
authority in the Philippines representing the King of Spain, and said
provision, with other articles of the Penal Code, had apparently passed into
"innocuous desuetude," but the Supreme Corut of the Philippine Islands
has, by a majority decision, held that said article 256 is the law of the land
to-day. . . .

The Helbig case is a precedent which, by the rule of stare decisis, is

binding upon this court until otherwise determined by proper authority.

In the decision rendered by the same judge, he concluded with the

following language:

In the United States such publications are usually not punishable as

criminal offense, and little importance is attached to them, because they
are generally the result of political controversy and are usually regarded as
more or less colored or exaggerated. Attacks of this character upon a
legislative body are not punishable, under the Libel Law. Although such
publications are reprehensible, yet this court feels some aversion to the
application of the provision of law under which this case was filed. Our
Penal Code has come to us from the Spanish regime. Article 256 of that
Code prescribes punishment for persons who use insulting language about
Ministers of the Crown or other "authority." The King of Spain doubtless left
the need of such protection to his ministers and others in authority in the
Philippines as well as in Spain. Hence, the article referred to was made
applicable here. Notwithstanding the change of sovereignty, our Supreme
Court, in a majority decision, has held that this provision is still in force, and
that one who made an insulting remark about the President of the United
States was punishable under it. (U.S. vs. Helbig, supra.) If it applicable in
that case, it would appear to be applicable in this case. Hence, said article
256 must be enforced, without fear or favor, until it shall be repealed or
superseded by other legislation, or until the Supreme Court shall otherwise
determine.

In view of the foregoing considerations, the court finds the defendant guilty
as charged in the information and under article 256 of their Penal Code
sentences him to suffer two months and one day of arresto mayor and the
accessory penalties prescribed by law, and to pay the costs of both
instances.

The fifteen errors assigned by the defendant and appellant, reenforced by

an extensive brief, and eloquent oral argument made in his own behalf and
by his learned counsel, all reduce themselves to the pertinent and decisive
question which was announced in the beginning of this decision.

It will be noted in the first place that the trial judge considered himself
bound to follow the rule announced in the case of United States vs. Helbig
(R. G. No. 14705, 1 not published). In that case, the accused was charged
with having said, "To hell with the President and his proclamations, or
words to that effect," in violation of article 256 of the Penal Code. He was
found guilty in a judgment rendered by the Court of First Instance of Manila
and again on appeal to the Supreme Court, with the writer of the instant
decision dissenting on two principal grounds: (1) That the accused was
deprived of the constitutional right of cross-examination, and (2) that article
256 of the Spanish Penal Code is no longer in force. Subsequently, on a
motion of reconsideration, the court, being of the opinion that the Court of
First Instance had committed a prejudicial error in depriving the accused of
his right to cross-examine a principal witness, set aside the judgment
affirming the judgment appealed from and ordered the return of the record
to the court of origin for the celebration of a new trial. Whether such a trial
was actually had, is not known, but at least, the record in the Helbig case
has never again been elevated to this court.

There may perchance exist some doubt as to the authority of the decision
in the Helbig case, in view of the circumstances above described. This
much, however, is certain: The facts of the Helbig case and the case before
us, which we may term the Perfecto case, are different, for in the first case
there was an oral defamation, while in the second there is a written
defamation. Not only this, but a new point which, under the facts, could not
have been considered in the Helbig case, is, in the Perfecto case, urged
upon the court. And, finally, as is apparent to all, the appellate court is not
restrained, as was the trial court, by strict adherence to a former decision.
We much prefer to resolve the question before us unhindered by
references to the Helbig decision.

This is one of those cases on which a variety of opinions all leading to the
same result can be had. A majority of the court are of the opinion that the
Philippine Libel Law, Act No. 277, has had the effect of repealing so much
of article 256 of the Penal Code as relates to written defamation, abuse, or
insult, and that under the information and the facts, the defendant is neither
guilty of a violation of article 256 of the Penal Code, nor of the Libel Law.
The view of the Chief Justice is that the accused should be acquitted for
the reason that the facts alleged in the information do not constitute a
violation of article 156 of the Penal Code. Three members of the court
believe that article 256 was abrogated completely by the change from
Spanish to American sovereignty over the Philippines and is inconsistent
with democratic principles of government.

Without prejudice to the right of any member of the court to explain his
position, we will discuss the two main points just mentioned.

1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the
Spanish Penal Code. The Libel Law, Act No. 277, was enacted by the
Philippine Commission shortly after organization of this legislative body.
Section 1 defines libel as a "malicious defamation, expressed either in
writing, printing, or by signs or pictures, or the like, or public theatrical
exhibitions, tending to blacken the memory of one who is dead or to
impeach the honesty, virtue, or reputation, or publish the alleged or natural
deffects of one who is alive, and thereby expose him to public hatred,
contempt or ridicule." Section 13 provides that "All laws and parts of laws
now in force, so far as the same may be in conflict herewith, are hereby
repealed. . . ."

That parts of laws in force in 1901 when the Libel Law took effect, were in
conflict therewith, and that the Libel Law abrogated certain portion of the
Spanish Penal Code, cannot be gainsaid. Title X of Book II of the Penal
Code, covering the subjects of calumny and insults, must have been
particularly affected by the Libel Law. Indeed, in the early case of Pardo de
Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the Supreme Court spoke
of the Libel Law as "reforming the preexisting Spanish law on the subject of
calumnia and injuria." Recently, specific attention was given to the effect of
the Libel Law on the provisions of the Penal Code, dealing with calumny
and insults, and it was found that those provisions of the Penal Code on the
subject of calumny and insults in which the elements of writing an publicity
entered, were abrogated by the Libel Law. (People vs. Castro [1922], p.
842, ante.)

The Libel Law must have had the same result on other provisions of the
Penal Code, as for instance article 256.

The facts here are that the editor of a newspaper published an article,
naturally in writing, which may have had the tendency to impeach the
honesty, virtue, or reputation of members of the Philippine Senate, thereby
possibly exposing them to public hatred, contempt, or ridicule, which is
exactly libel, as defined by the Libel Law. Sir J. F. Stephen is authority for
the statement that a libel is indictable when defaming a "body of persons
definite and small enough for individual members to be recognized as such,
in or by means of anything capable of being a libel." (Digest of Criminal
Law, art. 267.) But in the United States, while it may be proper to prosecute
criminally the author of a libel charging a legislator with corruption,
criticisms, no matter how severe, on a legislature, are within the range of
the liberty of the press, unless the intention and effect be seditious. (3
Wharton's Criminal Law, p. 2131.) With these facts and legal principles in
mind, recall that article 256 begins: Any person who, by . . . writing, shall
defame, abuse, or insult any Minister of the Crown or other person in
authority," etc.

The Libel Law is a complete and comprehensive law on the subject of libel.
The well-known rule of statutory construction is, that where the later statute
clearly covers the old subject-matter of antecedent acts, and it plainly
appears to have been the purpose of the legislature to give expression in it
to the whole law on the subject, previous laws are held to be repealed by
necessary implication. (1 Lewis' Sutherland Statutory Construction, p. 465.)
For identical reasons, it is evident that Act No. 277 had the effect so much
of this article as punishes defamation, abuse, or insults by writing.

Act No. 292 of the Philippine Commission, the Treason and Sedition Law,
may also have affected article 256, but as to this point, it is not necessary
to make a pronouncement.
2. Effect of the change from Spanish to Amercian sevoreignty over the
Philippine son article 256 of the Spanish Penal Code. Appellant's main
proposition in the lower court and again energetically pressed in the
appellate court was that article 256 of the Spanish Penal Code is not now
in force because abrogated by the change from Spanish to American
sovereignty over the Philippines and because inconsistent with democratic
principles of government. This view was indirectly favored by the trial judge,
and, as before stated, is the opinion of three members of this court.

Article 256 is found in Chapter V of title III of Book II of the Spanish Penal
Code. Title I of Book II punishes the crimes of treason, crimes that
endanger the peace or independence of the state, crimes against
international law, and the crime of piracy. Title II of the same book punishes
the crimes of lese majeste, crimes against the Cortes and its members and
against the council of ministers, crimes against the form of government,
and crimes committed on the occasion of the exercise of rights guaranteed
by the fundamental laws of the state, including crime against religion and
worship. Title III of the same Book, in which article 256 is found, punishes
the crimes of rebellion, sedition, assaults upon persons in authority, and
their agents, and contempts, insults, injurias, and threats against persons in
authority, and insults, injurias, and threats against their agents and other
public officers, the last being the title to Chapter V. The first two articles in
Chapter V define and punish the offense of contempt committed by any
one who shall be word or deed defame, abuse, insult, or threathen a
minister of the crown, or any person in authority. The with an article
condemning challenges to fight duels intervening, comes article 256, now
being weighed in the balance. It reads as follows: "Any person who, by
word, deed, or writing, shall defame, abuse, or insult any Minister of the
Crown or other person in authority, while engaged in the performance of
official duties, or by reason of such performance, provided that the
offensive minister or person, or the offensive writing be not addressed to
him, shall suffer the penalty of arresto mayor," that is, the defamation,
abuse, or insult of any Minister of the Crown of the Monarchy of Spain (for
there could not be a Minister of the Crown in the United States of America),
or other person in authority in the Monarchy of Spain.

It cannot admit of doubt that all those provisions of the Spanish Penal Code
having to do with such subjects as treason, lese majeste, religion and
worship, rebellion, sedition, and contempts of ministers of the crown, are
not longer in force. Our present task, therefore, is a determination of
whether article 256 has met the same fate, or, more specifically stated,
whether it is in the nature of a municipal law or political law, and is
consistent with the Constitution and laws of the United States and the
characteristics and institutions of the American Government.

It is a general principle of the public law that on acquisition of territory the

previous political relations of the ceded region are totally abrogated.
"Political" is here used to denominate the laws regulating the relations
sustained by the inhabitants to the sovereign. (American Insurance Co. vs.
Canter [1828], 1 Pet., 511; Chicago, Rock Island and Pacific Railway Co.
vs. McGlinn [1885], 114 U.S., 542; Roa vs. Collector of Customs [1912], 23
Phil., 315.) Mr. Justice Field of the United States Supreme Court stated the
obvious when in the course of his opinion in the case of Chicago, Rock
Island and Pacific Railway Co. vs. McGlinn, supra, he said: "As a matter of
course, all laws, ordinances and regulations in conflict with the political
character, institutions and Constitution of the new government are at once
displaced. Thus, upon a cession of political jurisdiction and legislative
power and the latter is involved in the former to the United States, the
laws of the country in support of an established religion or abridging the
freedom of the press, or authorizing cruel and unusual punishments, and
he like, would at once cease to be of obligatory force without any
declaration to that effect." To quote again from the United States Supreme
Court: "It cannot be admitted that the King of Spain could, by treaty or
otherwise, impart to the United States any of his royal prerogatives; and
much less can it be admitted that they have capacity to receive or power to
exercise them. Every nation acquiring territory, by treaty or otherwise, must
hold it subject to the Constitution and laws of its own government, and not
according to those of the government ceding it." (Pollard vs. Hagan [1845],
3 Hos., 210.)

On American occupation of the Philippines, by instructions of the President

to the Military Commander dated May 28, 1898, and by proclamation of the
latter, the municipal laws of the conquered territory affecting private rights
of person and property and providing for the punishment of crime were
nominally continued in force in so far as they were compatible with the new
order of things. But President McKinley, in his instructions to General
Merritt, was careful to say: "The first effect of the military occupation of the
enemy's territory is the severance of the former political relation of the
inhabitants and the establishment of a new political power." From that day
to this, the ordinarily it has been taken for granted that the provisions under
consideration were still effective. To paraphrase the language of the United
States Supreme Court in Weems vs. United States ([1910], 217 U. S., 349),
there was not and could not be, except as precise questions were
presented, a careful consideration of the codal provisions and a
determination of the extent to which they accorded with or were repugnant
to the "'great principles of liberty and law' which had been 'made the basis
of our governmental system.' " But when the question has been squarely
raised, the appellate court has been forced on occasion to hold certain
portions of the Spanish codes repugnant t democratic institutions and
American constitutional principles. (U.S. vs. Sweet [1901], 1 Phil., 18; U.S.
vs. Balcorta [1913], 25 Phil., 273; U.S. vs. Balcorta [1913], 25 Phil., 533;
Weems vs. U.S., supra.)

The nature of the government which has been set up in the Philippines
under American sovereignty was outlined by President McKinley in that
Magna Charta of Philippine liberty, his instructions to the Commission, of
April 7, 1900. In part, the President said:

In all the forms of government and administrative provisions which they are
authorized to prescribe, the Commission should bear in mind that he
government which they are establishing is designed not for our satisfaction
or for the expression of our theoretical views, but for the happiness, peace,
and prosperity of the people of the Philippine Islands, and the measures
adopted should be made to conform to their customs, their habits, and
even their prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and effective
government. At the same time the Commission should bear in mind, and
the people of the Islands should be made plainly to understand, that there
are certain great principles of government which have been made the basis
of our governmental system, which we deem essential to the rule of law
and the maintenance of individual freedom, and of which they have,
unfortunately, been denied the experience possessed by us; that there are
also certain practical rules of government which we have found to be
essential to the preservation of these great principles of liberty and law, and
that these principles and these rules of government must be established
and maintained in their islands for the sake of their liberty and happiness,
however much they may conflict with the customs or laws of procedure with
which they are familiar. It is evident that the most enligthened thought of
the Philippine Islands fully appreciates the importance of these principles
and rules, and they will inevitably within a short time command universal
assent.

The courts have naturally taken the same view. Mr. Justice Elliott, speaking
for our Supreme Court, in the case of United States vs. Bull ([1910], 15
Phil., 7), said: "The President and Congress framed the government on the
model with which American are familiar, and which has proven best
adapted for the advancement of the public interests and the protection of
individual rights and privileges."

Therefore, it has come with somewhat of a shock to hear the statement

made that the happiness, peace, and prosperity of the people of the
Philippine Islands and their customs, habits, and prejudices, to follow the
language of President McKinley, demand obeisance to authority, and royal
protection for that authority.

According to our view, article 256 of the Spanish Penal Code was enacted
by the Government of Spain to protect Spanish officials who were the
representatives of the King. With the change of sovereignty, a new
government, and a new theory of government, as set up in the Philippines.
It was in no sense a continuation of the old, although merely for
convenience certain of the existing institutions and laws were continued.
The demands which the new government made, and makes, on the
individual citizen are likewise different. No longer is there a Minister of the
Crown or a person in authority of such exalted position that the citizen must
speak of him only with bated breath. "In the eye of our Constitution and
laws, every man is a sovereign, a ruler and a freeman, and has equal rights
with every other man. We have no rank or station, except that of
respectability and intelligence as opposed to indecency and ignorance, and
the door to this rank stands open to every man to freely enter and abide
therein, if he is qualified, and whether he is qualified or not depends upon
the life and character and attainments and conduct of each person for
himself. Every man may lawfully do what he will, so long as it is not malum
in se or malum prohibitum or does not infringe upon the qually sacred rights
of others." (State vs. Shepherd [1903], 177 Mo., 205; 99 A. S. R., 624.)

It is true that in England, from which so many of the laws and institutions of
the United States are derived, there were once statutes of scandalum
magnatum, under which words which would not be actionable if spoken of
an ordinary subject were made actionable if spoken of a peer of the realm
or of any of the great officers of the Crown, without proof of any special
damage. The Crown of England, unfortunately, took a view less tolerant
that that of other sovereigns, as for instance, the Emperors Augustus,
Caesar, and Tiberius. These English statutes have, however, long since,
become obsolete, while in the United States, the offense of scandalum
magnatum is not known. In the early days of the American Republic, a
sedition law was enacted, making it an offense to libel the Government, the
Congress, or the President of the United States, but the law met with so
much popular disapproval, that it was soon repealed. "In this country no
distinction as to persons is recognized, and in practice a person holding a
high office is regarded as a target at whom any person may let fly his
poisonous words. High official position, instead of affording immunity from
slanderous and libelous charges, seems rather to be regarded as making
his character free plunder for any one who desires to create a senation by
attacking it." (Newell, Slander and Libel, 3d ed., p. 245; Sillars vs. Collier
[1890], 151 Mass., 50; 6 L.R.A., 680.)

Article 256 of the Penal Code is contrary to the genius and fundamental
principles of the American character and system of government. The gulf
which separates this article from the spirit which inspires all penal
legislation of American origin, is as wide as that which separates a
monarchy from a democratic Republic like that of the United States. This
article was crowded out by implication as soon as the United States
established its authority in the Philippine Islands. Penalties out of all
proportion to the gravity of the offense, grounded in a distorted monarchical
conception of the nature of political authority, as opposed to the American
conception of the protection of the interests of the public, have been
obliterated by the present system of government in the Islands. 1awph!l.net

From an entirely different point of view, it must be noted that this article
punishes contempts against executive officials, although its terms are
broad enough to cover the entire official class. Punishment for contempt of
non-judicial officers has no place in a government based upon American
principles. Our official class is not, as in monarchies, an agent of some
authority greater than the people but it is an agent and servant of the
people themselves. These officials are only entitled to respect and
obedience when they are acting within the scope of their authority and
jurisdiction. The American system of government is calculated to enforce
respect and obedience where such respect and obedience is due, but
never does it place around the individual who happens to occupy an official
position by mandate of the people any official halo, which calls for drastic
punishment for contemptuous remarks.

The crime of lese majeste disappeared in the Philippines with the

ratification of the Treaty of Paris. Ministers of the Crown have no place
under the American flag.

To summarize, the result is, that all the members of the court are of the
opinion, although for different reasons, that the judgment should be
reversed and the defendant and appellant acquitted, with costs de officio.
So ordered.

Ostrand and Johns, JJ., concur.

Separate Opinions

ARAULLO, C.J., concurring:

I concur with the dispositive part of the foregoing decision, that is, with the
acquittal of the accused, for the sole reason that the facts alleged in the
information do not constitute a violation of article 256 of the Penal Code; for
although that article is in force with respect to calumny, injuria, or insult, by
deed or word, against an authority in the performance of his duties or by
reason thereof, outside of his presence, it is repealed by the Libel Law in so
far as it refers to calumny, injuria, or insult committed against an authority
by writing or printing, as was that inserted in the said information.

ROMUALDEZ, J., concurring:

I concur with the result. I believe that the responsibility of the accused has
not been shown either under article 256 of the Penal Code or under the
Libel Law.

I am of the opinion that article 256 of the Penal Code is still in force, except
as it refers to "Ministers of the Crown," whom we do not have in our
Government, and to calumny, injuria, or insult, by writing or printing,
committed against an authority in the performance of his duties or by
reason thereof, which portion was repealed by the Libel Law.

Johnson, Street, Avancea and Villamor, JJ., concur.

FACTS: The issue started when the Secretary of the Philippine Senate,
Fernando Guerrero, discovered that the documents regarding the
testimony of the witnesses in an investigation of oil companies had
disappeared from his office. Then, the day following the convening of
Senate, the newspaper La Nacion edited by herein respondent Gregorio
Perfecto published an article against the Philippine Senate. Here, Mr.
Perfecto was alleged to have violated Article 256 of the Spanish Penal
Code provision that punishes those who insults the Ministers of the
Crown. Hence, the issue.

ISSUE: Whether or not Article 256 of the Spanish Penal Code (SPC) is still
in force and can be applied in the case at bar?

HELD: No.

REASONING: The Court stated that during the Spanish Government,

Article 256 of the SPC was enacted to protect Spanish officials as
representatives of the King. However, the Court explains that in the present
case, we no longer have Kings nor its representatives for the provision to
protect. Also, with the change of sovereignty over the Philippines from
Spanish to American, it means that the invoked provision of the SPC had
been automatically abrogated. The Court determined Article 256 of the
SPC to be political in nature for it is about the relation of the State to its
inhabitants, thus, the Court emphasized that it is a general principle of the
public law that on acquisition of territory, the previous political relations of
the ceded region are totally abrogated. Hence, Article 256 of the SPC is
considered no longer in force and cannot be applied to the present case.
Therefore, respondent was acquitted.

Macariola v. Asuncion 114 SCRA 77, - A.M. No. 133-J, May 31, 1982

A.M. No. 133-J May 31, 1982

BERNARDITA R. MACARIOLA, complainant,

vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance
of Leyte, respondent.

MAKASIAR, J:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola

charged respondent Judge Elias B. Asuncion of the Court of First Instance
of Leyte, now Associate Justice of the Court of Appeals, with "acts
unbecoming a judge."

The factual setting of the case is stated in the report dated May 27, 1971 of
then Associate Justice Cecilia Muoz Palma of the Court of Appeals now
retired Associate Justice of the Supreme Court, to whom this case was
referred on October 28, 1968 for investigation, thus:

Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint
for partition filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against
Bernardita R. Macariola, defendant, concerning the properties left by the
deceased Francisco Reyes, the common father of the plaintiff and
defendant.

In her defenses to the complaint for partition, Mrs. Macariola alleged

among other things that; a) plaintiff Sinforosa R. Bales was not a daughter
of the deceased Francisco Reyes; b) the only legal heirs of the deceased
were defendant Macariola, she being the only offspring of the first marriage
of Francisco Reyes with Felisa Espiras, and the remaining plaintiffs who
were the children of the deceased by his second marriage with Irene
Ondez; c) the properties left by the deceased were all the conjugal
properties of the latter and his first wife, Felisa Espiras, and no properties
were acquired by the deceased during his second marriage; d) if there was
any partition to be made, those conjugal properties should first be
partitioned into two parts, and one part is to be adjudicated solely to
defendant it being the share of the latter's deceased mother, Felisa
Espiras, and the other half which is the share of the deceased Francisco
Reyes was to be divided equally among his children by his two marriages.

On June 8, 1963, a decision was rendered by respondent Judge Asuncion

in Civil Case 3010, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a
preponderance of evidence, finds and so holds, and hereby renders
judgment (1) Declaring the plaintiffs Luz R. Bakunawa, Anacorita Reyes,
Ruperto Reyes, Adela Reyes and Priscilla Reyes as the only children
legitimated by the subsequent marriage of Francisco Reyes Diaz to Irene
Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have been an
illegitimate child of Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474,
4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot 1145 as belonging to
the conjugal partnership of the spouses Francisco Reyes Diaz and Felisa
Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging to
the spouses Francisco Reyes Diaz and Irene Ondez in common
partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging exclusively
to the deceased Francisco Reyes Diaz; (6) Declaring the defendant
Bernardita R. Macariola, being the only legal and forced heir of her mother
Felisa Espiras, as the exclusive owner of one-half of each of Lots Nos.
4474, 4475, 4892, 5265, 4803, 4581, 4506; and the remaining one-half
(1/2) of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506
and one-half (1/2) of one-fourth (1/4) of Lot No. 1154 as belonging to the
estate of Francisco Reyes Diaz; (7) Declaring Irene Ondez to be the
exclusive owner of one-half (1/2) of Lot No. 2304 and one-half (1/2) of one-
fourth (1/4) of Lot No. 3416; the remaining one-half (1/2) of Lot 2304 and
the remaining one-half (1/2) of one-fourth (1/4) of Lot No. 3416 as
belonging to the estate of Francisco Reyes Diaz; (8) Directing the division
or partition of the estate of Francisco Reyes Diaz in such a manner as to
give or grant to Irene Ondez, as surviving widow of Francisco Reyes Diaz,
a hereditary share of. one-twelfth (1/12) of the whole estate of Francisco
Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New Civil Code), and the
remaining portion of the estate to be divided among the plaintiffs Sinforosa
R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes, Priscilla Reyes and defendant Bernardita R. Macariola, in such a
way that the extent of the total share of plaintiff Sinforosa R. Bales in the
hereditary estate shall not exceed the equivalent of two-fifth (2/5) of the
total share of any or each of the other plaintiffs and the defendant (Art. 983,
New Civil Code), each of the latter to receive equal shares from the
hereditary estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of
Jaro, O.G. [3rd Ed.] p. 33); (9) Directing the parties, within thirty days after
this judgment shall have become final to submit to this court, for approval a
project of partition of the hereditary estate in the proportion above
indicated, and in such manner as the parties may, by agreement, deemed
convenient and equitable to them taking into consideration the location,
kind, quality, nature and value of the properties involved; (10) Directing the
plaintiff Sinforosa R. Bales and defendant Bernardita R. Macariola to pay
the costs of this suit, in the proportion of one-third (1/3) by the first named
and two-thirds (2/3) by the second named; and (I 1) Dismissing all other
claims of the parties [pp 27-29 of Exh. C].

The decision in civil case 3010 became final for lack of an appeal, and on
October 16, 1963, a project of partition was submitted to Judge Asuncion
which is marked Exh. A. Notwithstanding the fact that the project of
partition was not signed by the parties themselves but only by the
respective counsel of plaintiffs and defendant, Judge Asuncion approved it
in his Order dated October 23, 1963, which for convenience is quoted
hereunder in full:

The parties, through their respective counsels, presented to this Court for
approval the following project of partition:

COMES NOW, the plaintiffs and the defendant in the above-entitled case,
to this Honorable Court respectfully submit the following Project of Partition:

l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively
to Bernardita Reyes Macariola;

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the
eastern part of the lot shall be awarded likewise to Bernardita R. Macariola;

3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes
Bales;

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the
western part of the lot shall likewise be awarded to Sinforosa Reyes-Bales;

5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla
Reyes in equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the
portions awarded under item (2) and (4) above shall be awarded to Luz
Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and
Priscilla Reyes in equal shares, provided, however that the remaining
portion of Lot No. 3416 shall belong exclusively to Priscilla Reyes.

WHEREFORE, it is respectfully prayed that the Project of Partition

indicated above which is made in accordance with the decision of the
Honorable Court be approved.

Tacloban City, October 16, 1963.

(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City

While the Court thought it more desirable for all the parties to have signed
this Project of Partition, nevertheless, upon assurance of both counsels of
the respective parties to this Court that the Project of Partition, as above-
quoted, had been made after a conference and agreement of the plaintiffs
and the defendant approving the above Project of Partition, and that both
lawyers had represented to the Court that they are given full authority to
sign by themselves the Project of Partition, the Court, therefore, finding the
above-quoted Project of Partition to be in accordance with law, hereby
approves the same. The parties, therefore, are directed to execute such
papers, documents or instrument sufficient in form and substance for the
vesting of the rights, interests and participations which were adjudicated to
the respective parties, as outlined in the Project of Partition and the delivery
of the respective properties adjudicated to each one in view of said Project
of Partition, and to perform such other acts as are legal and necessary to
effectuate the said Project of Partition.

SO ORDERED.

Given in Tacloban City, this 23rd day of October, 1963.

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

The above Order of October 23, 1963, was amended on November 11,
1963, only for the purpose of giving authority to the Register of Deeds of
the Province of Leyte to issue the corresponding transfer certificates of title
to the respective adjudicatees in conformity with the project of partition (see
Exh. U).

One of the properties mentioned in the project of partition was Lot 1184 or
rather one-half thereof with an area of 15,162.5 sq. meters. This lot, which
according to the decision was the exclusive property of the deceased
Francisco Reyes, was adjudicated in said project of partition to the plaintiffs
Luz, Anacorita Ruperto, Adela, and Priscilla all surnamed Reyes in equal
shares, and when the project of partition was approved by the trial court the
adjudicatees caused Lot 1184 to be subdivided into five lots denominated
as Lot 1184-A to 1184-E inclusive (Exh. V).

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge

Asuncion's court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an
area of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio
Galapon (Exh. 2) who was issued transfer certificate of title No. 2338 of the
Register of Deeds of the city of Tacloban (Exh. 12).

On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot
1184-E with an area of around 1,306 sq. meters to Judge Asuncion and his
wife, Victoria S. Asuncion (Exh. 11), which particular portion was declared
by the latter for taxation purposes (Exh. F).

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed

their respective shares and interest in Lot 1184-E to "The Traders
Manufacturing and Fishing Industries Inc." (Exit 15 & 16). At the time of
said sale the stockholders of the corporation were Dominador Arigpa Tan,
Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the latter's
wife, Victoria S. Asuncion, with Judge Asuncion as the President and Mrs.
Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation
of "The Traders Manufacturing and Fishing Industries, Inc." which we shall
henceforth refer to as "TRADERS" were registered with the Securities and
Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385,
rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant

complaint dated August 6, 1968 alleging four causes of action, to wit: [1]
that respondent Judge Asuncion violated Article 1491, paragraph 5, of the
New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which
was one of those properties involved in Civil Case No. 3010 decided by
him; [2] that he likewise violated Article 14, paragraphs I and 5 of the Code
of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil
Service Rules, and Canon 25 of the Canons of Judicial Ethics, by
associating himself with the Traders Manufacturing and Fishing Industries,
Inc., as a stockholder and a ranking officer while he was a judge of the
Court of First Instance of Leyte; [3] that respondent was guilty of coddling
an impostor and acted in disregard of judicial decorum by closely
fraternizing with a certain Dominador Arigpa Tan who openly and publicly
advertised himself as a practising attorney when in truth and in fact his
name does not appear in the Rolls of Attorneys and is not a member of the
Philippine Bar; and [4] that there was a culpable defiance of the law and
utter disregard for ethics by respondent Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to

which a reply was filed on October 16, 1968 by herein complainant. In Our
resolution of October 28, 1968, We referred this case to then Justice
Cecilia Muoz Palma of the Court of Appeals, for investigation, report and
recommendation. After hearing, the said Investigating Justice submitted her
report dated May 27, 1971 recommending that respondent Judge should
be reprimanded or warned in connection with the first cause of action
alleged in the complaint, and for the second cause of action, respondent
should be warned in case of a finding that he is prohibited under the law to
engage in business. On the third and fourth causes of action, Justice
Palma recommended that respondent Judge be exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481,
477, rec.), complainant herein instituted an action before the Court of First
Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus
Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case
No. 4235, seeking the annulment of the project of partition made pursuant
to the decision in Civil Case No. 3010 and the two orders issued by
respondent Judge approving the same, as well as the partition of the estate
and the subsequent conveyances with damages. It appears, however, that
some defendants were dropped from the civil case. For one, the case
against Dr. Arcadio Galapon was dismissed because he was no longer a
real party in interest when Civil Case No. 4234 was filed, having already
conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge
and on August 31, 1966 the remainder was sold to the Traders
Manufacturing and Fishing Industries, Inc. Similarly, the case against
defendant Victoria Asuncion was dismissed on the ground that she was no
longer a real party in interest at the time the aforesaid Civil Case No. 4234
was filed as the portion of Lot 1184 acquired by her and respondent Judge
from Dr. Arcadio Galapon was already sold on August 31, 1966 to the
Traders Manufacturing and Fishing industries, Inc. Likewise, the cases
against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go,
Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R.
Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla,
Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were
dismissed with the conformity of complainant herein, plaintiff therein, and
her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First

Instance of Leyte, who was directed and authorized on June 2, 1969 by the
then Secretary (now Minister) of Justice and now Minister of National
Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234,
rendered a decision, the dispositive portion of which reads as follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte
has jurisdiction to take cognizance of the issue of the legality and validity of
the Project of Partition [Exhibit "B"] and the two Orders [Exhibits "C" and
"C- 3"] approving the partition;

(2) dismissing the complaint against Judge Elias B. Asuncion;

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant

Judge Elias B. Asuncion,

(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for

moral damages;

(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for

exemplary damages;

(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal

damages; and

(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN,
FOR HERSELF AND FOR THE HEIRS OF THE DECEASED GERARDO
VILLASIN

(1) Dismissing the complaint against the defendants Mariquita Villasin

and the heirs of the deceased Gerardo Villasin;

(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the
heirs of Gerardo Villasin the cost of the suit.

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES,

ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO. 3010

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela

R. Herrer, Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and
Ruperto O. Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO

(1) Dismissing the complaint against Bonifacio Ramo;

(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of
the suit.

SO ORDERED [pp. 531-533, rec.]

It is further disclosed by the record that the aforesaid decision was elevated
to the Court of Appeals upon perfection of the appeal on February 22,
1971.

WE find that there is no merit in the contention of complainant Bernardita

R. Macariola, under her first cause of action, that respondent Judge Elias
B. Asuncion violated Article 1491, paragraph 5, of the New Civil Code in
acquiring by purchase a portion of Lot No. 1184-E which was one of those
properties involved in Civil Case No. 3010. 'That Article provides:

Article 1491. The following persons cannot acquire by purchase, even at a

public or judicial action, either in person or through the mediation of
another:

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior

courts, and other officers and employees connected with the administration
of justice, the property and rights in litigation or levied upon an execution
before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring by
assignment and shall apply to lawyers, with respect to the property and
rights which may be the object of any litigation in which they may take part
by virtue of their profession [emphasis supplied].

The prohibition in the aforesaid Article applies only to the sale or

assignment of the property which is the subject of litigation to the persons
disqualified therein. WE have already ruled that "... for the prohibition to
operate, the sale or assignment of the property must take place during the
pendency of the litigation involving the property" (The Director of Lands vs.
Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig vs. Court of
Appeals, 86 SCRA 641, 646 [1978]).

In the case at bar, when the respondent Judge purchased on March 6,

1965 a portion of Lot 1184-E, the decision in Civil Case No. 3010 which he
rendered on June 8, 1963 was already final because none of the parties
therein filed an appeal within the reglementary period; hence, the lot in
question was no longer subject of the litigation. Moreover, at the time of the
sale on March 6, 1965, respondent's order dated October 23, 1963 and the
amended order dated November 11, 1963 approving the October 16, 1963
project of partition made pursuant to the June 8, 1963 decision, had long
become final for there was no appeal from said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6,
1965 directly from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio
Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of
the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa
after the finality of the decision in Civil Case No. 3010. It may be recalled
that Lot 1184 or more specifically one-half thereof was adjudicated in equal
shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes
and Anacorita Reyes in the project of partition, and the same was
subdivided into five lots denominated as Lot 1184-A to 1184-E. As
aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon for which
he was issued TCT No. 2338 by the Register of Deeds of Tacloban City,
and on March 6, 1965 he sold a portion of said lot to respondent Judge and
his wife who declared the same for taxation purposes only. The subsequent
sale on August 31, 1966 by spouses Asuncion and spouses Galapon of
their respective shares and interest in said Lot 1184-E to the Traders
Manufacturing and Fishing Industries, Inc., in which respondent was the
president and his wife was the secretary, took place long after the finality of
the decision in Civil Case No. 3010 and of the subsequent two aforesaid
orders therein approving the project of partition.

While it appears that complainant herein filed on or about November 9 or

11, 1968 an action before the Court of First Instance of Leyte docketed as
Civil Case No. 4234, seeking to annul the project of partition and the two
orders approving the same, as well as the partition of the estate and the
subsequent conveyances, the same, however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a

portion of Lot 1184-E from Dr. Arcadio Galapon; hence, after the finality of
the decision which he rendered on June 8, 1963 in Civil Case No. 3010 and
his two questioned orders dated October 23, 1963 and November 11,
1963. Therefore, the property was no longer subject of litigation.

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234
can no longer alter, change or affect the aforesaid facts that the
questioned sale to respondent Judge, now Court of Appeals Justice, was
effected and consummated long after the finality of the aforesaid decision
or orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge

having taken place over one year after the finality of the decision in Civil
Case No. 3010 as well as the two orders approving the project of partition,
and not during the pendency of the litigation, there was no violation of
paragraph 5, Article 1491 of the New Civil Code.

It is also argued by complainant herein that the sale on July 31, 1964 of Lot
1184-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R.
Bakunawa was only a mere scheme to conceal the illegal and unethical
transfer of said lot to respondent Judge as a consideration for the approval
of the project of partition. In this connection, We agree with the findings of
the Investigating Justice thus:

And so we are now confronted with this all-important question whether or

not the acquisition by respondent of a portion of Lot 1184-E and the
subsequent transfer of the whole lot to "TRADERS" of which respondent
was the President and his wife the Secretary, was intimately related to the
Order of respondent approving the project of partition, Exh. A.

Respondent vehemently denies any interest or participation in the

transactions between the Reyeses and the Galapons concerning Lot 1184-
E, and he insists that there is no evidence whatsoever to show that Dr.
Galapon had acted, in the purchase of Lot 1184-E, in mediation for him and
his wife. (See p. 14 of Respondent's Memorandum).

xxx xxx xxx

On this point, I agree with respondent that there is no evidence in the

record showing that Dr. Arcadio Galapon acted as a mere "dummy" of
respondent in acquiring Lot 1184-E from the Reyeses. Dr. Galapon
appeared to this investigator as a respectable citizen, credible and sincere,
and I believe him when he testified that he bought Lot 1184-E in good faith
and for valuable consideration from the Reyeses without any intervention
of, or previous understanding with Judge Asuncion (pp. 391- 394, rec.).

On the contention of complainant herein that respondent Judge acted

illegally in approving the project of partition although it was not signed by
the parties, We quote with approval the findings of the Investigating Justice,
as follows:

1. I agree with complainant that respondent should have required the

signature of the parties more particularly that of Mrs. Macariola on the
project of partition submitted to him for approval; however, whatever error
was committed by respondent in that respect was done in good faith as
according to Judge Asuncion he was assured by Atty. Bonifacio Ramo, the
counsel of record of Mrs. Macariola, That he was authorized by his client to
submit said project of partition, (See Exh. B and tsn p. 24, January 20,
1969). While it is true that such written authority if there was any, was not
presented by respondent in evidence, nor did Atty. Ramo appear to
corroborate the statement of respondent, his affidavit being the only one
that was presented as respondent's Exh. 10, certain actuations of Mrs.
Macariola lead this investigator to believe that she knew the contents of the
project of partition, Exh. A, and that she gave her conformity thereto. I refer
to the following documents:

1) Exh. 9 Certified true copy of OCT No. 19520 covering Lot 1154 of
the Tacloban Cadastral Survey in which the deceased Francisco Reyes
holds a "1/4 share" (Exh. 9-a). On tills certificate of title the Order dated
November 11, 1963, (Exh. U) approving the project of partition was duly
entered and registered on November 26, 1963 (Exh. 9-D);

2) Exh. 7 Certified copy of a deed of absolute sale executed by

Bernardita Reyes Macariola on October 22, 1963, conveying to Dr. Hector
Decena the one-fourth share of the late Francisco Reyes-Diaz in Lot 1154.
In this deed of sale the vendee stated that she was the absolute owner of
said one-fourth share, the same having been adjudicated to her as her
share in the estate of her father Francisco Reyes Diaz as per decision of
the Court of First Instance of Leyte under case No. 3010 (Exh. 7-A). The
deed of sale was duly registered and annotated at the back of OCT 19520
on December 3, 1963 (see Exh. 9-e).

In connection with the abovementioned documents it is to be noted that in

the project of partition dated October 16, 1963, which was approved by
respondent on October 23, 1963, followed by an amending Order on
November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs.
Macariola. It is this 1/4 share in Lot 1154 which complainant sold to Dr.
Decena on October 22, 1963, several days after the preparation of the
project of partition.

Counsel for complainant stresses the view, however, that the latter sold her
one-fourth share in Lot 1154 by virtue of the decision in Civil Case 3010
and not because of the project of partition, Exh. A. Such contention is
absurd because from the decision, Exh. C, it is clear that one-half of one-
fourth of Lot 1154 belonged to the estate of Francisco Reyes Diaz while the
other half of said one-fourth was the share of complainant's mother, Felisa
Espiras; in other words, the decision did not adjudicate the whole of the
one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4).
Complainant became the owner of the entire one-fourth of Lot 1154 only by
means of the project of partition, Exh. A. Therefore, if Mrs. Macariola sold
Lot 1154 on October 22, 1963, it was for no other reason than that she was
wen aware of the distribution of the properties of her deceased father as
per Exhs. A and B. It is also significant at this point to state that Mrs.
Macariola admitted during the cross-examination that she went to Tacloban
City in connection with the sale of Lot 1154 to Dr. Decena (tsn p. 92,
November 28, 1968) from which we can deduce that she could not have
been kept ignorant of the proceedings in civil case 3010 relative to the
project of partition.

Complainant also assails the project of partition because according to her

the properties adjudicated to her were insignificant lots and the least
valuable. Complainant, however, did not present any direct and positive
evidence to prove the alleged gross inequalities in the choice and
distribution of the real properties when she could have easily done so by
presenting evidence on the area, location, kind, the assessed and market
value of said properties. Without such evidence there is nothing in the
record to show that there were inequalities in the distribution of the
properties of complainant's father (pp. 386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5,
Article 1491 of the New Civil Code in acquiring by purchase a portion of Lot
1184-E which was in litigation in his court, it was, however, improper for
him to have acquired the same. He should be reminded of Canon 3 of the
Canons of Judicial Ethics which requires that: "A judge's official conduct
should be free from the appearance of impropriety, and his personal
behavior, not only upon the bench and in the performance of judicial duties,
but also in his everyday life, should be beyond reproach." And as aptly
observed by the Investigating Justice: "... it was unwise and indiscreet on
the part of respondent to have purchased or acquired a portion of a piece
of property that was or had been in litigation in his court and caused it to be
transferred to a corporation of which he and his wife were ranking officers
at the time of such transfer. One who occupies an exalted position in the
judiciary has the duty and responsibility of maintaining the faith and trust of
the citizenry in the courts of justice, so that not only must he be truly honest
and just, but his actuations must be such as not give cause for doubt and
mistrust in the uprightness of his administration of justice. In this particular
case of respondent, he cannot deny that the transactions over Lot 1184-E
are damaging and render his actuations open to suspicion and distrust.
Even if respondent honestly believed that Lot 1184-E was no longer in
litigation in his court and that he was purchasing it from a third person and
not from the parties to the litigation, he should nonetheless have refrained
from buying it for himself and transferring it to a corporation in which he and
his wife were financially involved, to avoid possible suspicion that his
acquisition was related in one way or another to his official actuations in
civil case 3010. The conduct of respondent gave cause for the litigants in
civil case 3010, the lawyers practising in his court, and the public in general
to doubt the honesty and fairness of his actuations and the integrity of our
courts of justice" (pp. 395396, rec.).

II

With respect to the second cause of action, the complainant alleged that
respondent Judge violated paragraphs 1 and 5, Article 14 of the Code of
Commerce when he associated himself with the Traders Manufacturing
and Fishing Industries, Inc. as a stockholder and a ranking officer, said
corporation having been organized to engage in business. Said Article
provides that:

Article 14 The following cannot engage in commerce, either in person or

by proxy, nor can they hold any office or have any direct, administrative, or
financial intervention in commercial or industrial companies within the limits
of the districts, provinces, or towns in which they discharge their duties:

1. Justices of the Supreme Court, judges and officials of the department

of public prosecution in active service. This provision shall not be
applicable to mayors, municipal judges, and municipal prosecuting
attorneys nor to those who by chance are temporarily discharging the
functions of judge or prosecuting attorney.

xxx xxx xxx

5. Those who by virtue of laws or special provisions may not engage in

commerce in a determinate territory.

It is Our considered view that although the aforestated provision is

incorporated in the Code of Commerce which is part of the commercial
laws of the Philippines, it, however, partakes of the nature of a political law
as it regulates the relationship between the government and certain public
officers and employees, like justices and judges.
Political Law has been defined as that branch of public law which deals
with the organization and operation of the governmental organs of the State
and define the relations of the state with the inhabitants of its territory
(People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that
political law embraces constitutional law, law of public corporations,
administrative law including the law on public officers and elections.
Specifically, Article 14 of the Code of Commerce partakes more of the
nature of an administrative law because it regulates the conduct of certain
public officers and employees with respect to engaging in business: hence,
political in essence.

It is significant to note that the present Code of Commerce is the Spanish

Code of Commerce of 1885, with some modifications made by the
"Commission de Codificacion de las Provincias de Ultramar," which was
extended to the Philippines by the Royal Decree of August 6, 1888, and
took effect as law in this jurisdiction on December 1, 1888.

Upon the transfer of sovereignty from Spain to the United States and later
on from the United States to the Republic of the Philippines, Article 14 of
this Code of Commerce must be deemed to have been abrogated because
where there is change of sovereignty, the political laws of the former
sovereign, whether compatible or not with those of the new sovereign, are
automatically abrogated, unless they are expressly re-enacted by
affirmative act of the new sovereign.

Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311
[1912]) that:

By well-settled public law, upon the cession of territory by one nation to

another, either following a conquest or otherwise, ... those laws which are
political in their nature and pertain to the prerogatives of the former
government immediately cease upon the transfer of sovereignty. (Opinion,
Atty. Gen., July 10, 1899).

While municipal laws of the newly acquired territory not in conflict with the,
laws of the new sovereign continue in force without the express assent or
affirmative act of the conqueror, the political laws do not. (Halleck's Int.
Law, chap. 34, par. 14). However, such political laws of the prior
sovereignty as are not in conflict with the constitution or institutions of the
new sovereign, may be continued in force if the conqueror shall so declare
by affirmative act of the commander-in-chief during the war, or by Congress
in time of peace. (Ely's Administrator vs. United States, 171 U.S. 220, 43 L.
Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales of
Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall
said:

On such transfer (by cession) of territory, it has never been held that the
relations of the inhabitants with each other undergo any change. Their
relations with their former sovereign are dissolved, and new relations are
created between them and the government which has acquired their
territory. The same act which transfers their country, transfers the
allegiance of those who remain in it; and the law which may be
denominated political, is necessarily changed, although that which
regulates the intercourse and general conduct of individuals, remains in
force, until altered by the newly- created power of the State.

Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court
stated that: "It is a general principle of the public law that on acquisition of
territory the previous political relations of the ceded region are totally
abrogated. "

There appears no enabling or affirmative act that continued the effectivity of

the aforestated provision of the Code of Commerce after the change of
sovereignty from Spain to the United States and then to the Republic of the
Philippines. Consequently, Article 14 of the Code of Commerce has no
legal and binding effect and cannot apply to the respondent, then Judge of
the Court of First Instance, now Associate Justice of the Court of Appeals.

It is also argued by complainant herein that respondent Judge violated

paragraph H, Section 3 of Republic Act No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, which provides that:

Sec. 3. Corrupt practices of public officers. In addition to acts or

omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any

business, contract or transaction in connection with which he intervenes or
takes part in his official capacity, or in which he is prohibited by the
Constitution or by any Iaw from having any interest.

Respondent Judge cannot be held liable under the aforestated paragraph

because there is no showing that respondent participated or intervened in
his official capacity in the business or transactions of the Traders
Manufacturing and Fishing Industries, Inc. In the case at bar, the business
of the corporation in which respondent participated has obviously no
relation or connection with his judicial office. The business of said
corporation is not that kind where respondent intervenes or takes part in his
capacity as Judge of the Court of First Instance. As was held in one case
involving the application of Article 216 of the Revised Penal Code which
has a similar prohibition on public officers against directly or indirectly
becoming interested in any contract or business in which it is his official
duty to intervene, "(I)t is not enough to be a public official to be subject to
this crime; it is necessary that by reason of his office, he has to intervene in
said contracts or transactions; and, hence, the official who intervenes in
contracts or transactions which have no relation to his office cannot commit
this crime.' (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by
Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).

It does not appear also from the records that the aforesaid corporation
gained any undue advantage in its business operations by reason of
respondent's financial involvement in it, or that the corporation benefited in
one way or another in any case filed by or against it in court. It is
undisputed that there was no case filed in the different branches of the
Court of First Instance of Leyte in which the corporation was either party
plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R.
Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein the
complainant herein sought to recover Lot 1184-E from the aforesaid
corporation. It must be noted, however, that Civil Case No. 4234 was filed
only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI
Judge Jose D. Nepomuceno when respondent Judge was no longer
connected with the corporation, having disposed of his interest therein on
January 31, 1967.

Furthermore, respondent is not liable under the same paragraph because

there is no provision in both the 1935 and 1973 Constitutions of the
Philippines, nor is there an existing law expressly prohibiting members of
the Judiciary from engaging or having interest in any lawful business.

It may be pointed out that Republic Act No. 296, as amended, also known
as the Judiciary Act of 1948, does not contain any prohibition to that effect.
As a matter of fact, under Section 77 of said law, municipal judges may
engage in teaching or other vocation not involving the practice of law after
office hours but with the permission of the district judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from

engaging in commerce is, as heretofore stated, deemed abrogated
automatically upon the transfer of sovereignty from Spain to America,
because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil

Code against the purchase by judges of a property in litigation before the
court within whose jurisdiction they perform their duties, cannot apply to
respondent Judge because the sale of the lot in question to him took place
after the finality of his decision in Civil Case No. 3010 as well as his two
orders approving the project of partition; hence, the property was no longer
subject of litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made
pursuant to the Civil Service Act of 1959 prohibits an officer or employee in
the civil service from engaging in any private business, vocation, or
profession or be connected with any commercial, credit, agricultural or
industrial undertaking without a written permission from the head of
department, the same, however, may not fall within the purview of
paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because
the last portion of said paragraph speaks of a prohibition by the
Constitution or law on any public officer from having any interest in any
business and not by a mere administrative rule or regulation. Thus, a
violation of the aforesaid rule by any officer or employee in the civil service,
that is, engaging in private business without a written permission from the
Department Head may not constitute graft and corrupt practice as defined
by law.

On the contention of complainant that respondent Judge violated Section

12, Rule XVIII of the Civil Service Rules, We hold that the Civil Service Act
of 1959 (R.A. No. 2260) and the Civil Service Rules promulgated
thereunder, particularly Section 12 of Rule XVIII, do not apply to the
members of the Judiciary. Under said Section 12: "No officer or employee
shall engage directly in any private business, vocation, or profession or be
connected with any commercial, credit, agricultural or industrial undertaking
without a written permission from the Head of Department ..."

It must be emphasized at the outset that respondent, being a member of

the Judiciary, is covered by Republic Act No. 296, as amended, otherwise
known as the Judiciary Act of 1948 and by Section 7, Article X, 1973
Constitution.

Under Section 67 of said law, the power to remove or dismiss judges was
then vested in the President of the Philippines, not in the Commissioner of
Civil Service, and only on two grounds, namely, serious misconduct and
inefficiency, and upon the recommendation of the Supreme Court, which
alone is authorized, upon its own motion, or upon information of the
Secretary (now Minister) of Justice to conduct the corresponding
investigation. Clearly, the aforesaid section defines the grounds and
prescribes the special procedure for the discipline of judges.

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the
Supreme Court can discipline judges of inferior courts as well as other
personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The
Commissioner may, for ... violation of the existing Civil Service Law and
rules or of reasonable office regulations, or in the interest of the service,
remove any subordinate officer or employee from the service, demote him
in rank, suspend him for not more than one year without pay or fine him in
an amount not exceeding six months' salary." Thus, a violation of Section
12 of Rule XVIII is a ground for disciplinary action against civil service
officers and employees.

However, judges cannot be considered as subordinate civil service officers

or employees subject to the disciplinary authority of the Commissioner of
Civil Service; for, certainly, the Commissioner is not the head of the Judicial
Department to which they belong. The Revised Administrative Code
(Section 89) and the Civil Service Law itself state that the Chief Justice is
the department head of the Supreme Court (Sec. 20, R.A. No. 2260)
[1959]); and under the 1973 Constitution, the Judiciary is the only other or
second branch of the government (Sec. 1, Art. X, 1973 Constitution).
Besides, a violation of Section 12, Rule XVIII cannot be considered as a
ground for disciplinary action against judges because to recognize the
same as applicable to them, would be adding another ground for the
discipline of judges and, as aforestated, Section 67 of the Judiciary Act
recognizes only two grounds for their removal, namely, serious misconduct
and inefficiency.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the
Commissioner of Civil Service who has original and exclusive jurisdiction
"(T)o decide, within one hundred twenty days, after submission to it, all
administrative cases against permanent officers and employees in the
competitive service, and, except as provided by law, to have final authority
to pass upon their removal, separation, and suspension and upon all
matters relating to the conduct, discipline, and efficiency of such officers
and employees; and prescribe standards, guidelines and regulations
governing the administration of discipline" (emphasis supplied). There is no
question that a judge belong to the non-competitive or unclassified service
of the government as a Presidential appointee and is therefore not covered
by the aforesaid provision. WE have already ruled that "... in interpreting
Section 16(i) of Republic Act No. 2260, we emphasized that only
permanent officers and employees who belong to the classified service
come under the exclusive jurisdiction of the Commissioner of Civil Service"
(Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9
SCRA 619 [1963]).

Although the actuation of respondent Judge in engaging in private business

by joining the Traders Manufacturing and Fishing Industries, Inc. as a
stockholder and a ranking officer, is not violative of the provissions of
Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and
Corrupt Practices Act as well as Section 12, Rule XVIII of the Civil Service
Rules promulgated pursuant to the Civil Service Act of 1959, the
impropriety of the same is clearly unquestionable because Canon 25 of the
Canons of Judicial Ethics expressly declares that:

A judge should abstain from making personal investments in enterprises

which are apt to be involved in litigation in his court; and, after his
accession to the bench, he should not retain such investments previously
made, longer than a period sufficient to enable him to dispose of them
without serious loss. It is desirable that he should, so far as reasonably
possible, refrain from all relations which would normally tend to arouse the
suspicion that such relations warp or bias his judgment, or prevent his
impartial attitude of mind in the administration of his judicial duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his
wife had withdrawn on January 31, 1967 from the aforesaid corporation
and sold their respective shares to third parties, and it appears also that the
aforesaid corporation did not in anyway benefit in any case filed by or
against it in court as there was no case filed in the different branches of the
Court of First Instance of Leyte from the time of the drafting of the Articles
of Incorporation of the corporation on March 12, 1966, up to its
incorporation on January 9, 1967, and the eventual withdrawal of
respondent on January 31, 1967 from said corporation. Such disposal or
sale by respondent and his wife of their shares in the corporation only 22
days after the incorporation of the corporation, indicates that respondent
realized that early that their interest in the corporation contravenes the
aforesaid Canon 25. Respondent Judge and his wife therefore deserve the
commendation for their immediate withdrawal from the firm after its
incorporation and before it became involved in any court litigation

III

With respect to the third and fourth causes of action, complainant alleged
that respondent was guilty of coddling an impostor and acted in disregard
of judicial decorum, and that there was culpable defiance of the law and
utter disregard for ethics. WE agree, however, with the recommendation of
the Investigating Justice that respondent Judge be exonerated because the
aforesaid causes of action are groundless, and WE quote the pertinent
portion of her report which reads as follows:

The basis for complainant's third cause of action is the claim that
respondent associated and closely fraternized with Dominador Arigpa Tan
who openly and publicly advertised himself as a practising attorney (see
Exhs. I, I-1 and J) when in truth and in fact said Dominador Arigpa Tan
does not appear in the Roll of Attorneys and is not a member of the
Philippine Bar as certified to in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an

"impostor" and claims that all the time he believed that the latter was a
bona fide member of the bar. I see no reason for disbelieving this assertion
of respondent. It has been shown by complainant that Dominador Arigpa
Tan represented himself publicly as an attorney-at-law to the extent of
putting up a signboard with his name and the words "Attorney-at Law"
(Exh. I and 1- 1) to indicate his office, and it was but natural for respondent
and any person for that matter to have accepted that statement on its face
value. "Now with respect to the allegation of complainant that respondent is
guilty of fraternizing with Dominador Arigpa Tan to the extent of permitting
his wife to be a godmother of Mr. Tan's child at baptism (Exh. M & M-1),
that fact even if true did not render respondent guilty of violating any canon
of judicial ethics as long as his friendly relations with Dominador A. Tan and
family did not influence his official actuations as a judge where said
persons were concerned. There is no tangible convincing proof that herein
respondent gave any undue privileges in his court to Dominador Arigpa
Tan or that the latter benefitted in his practice of law from his personal
relations with respondent, or that he used his influence, if he had any, on
the Judges of the other branches of the Court to favor said Dominador Tan.

Of course it is highly desirable for a member of the judiciary to refrain as

much as possible from maintaining close friendly relations with practising
attorneys and litigants in his court so as to avoid suspicion 'that his social
or business relations or friendship constitute an element in determining his
judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does
have social relations, that in itself would not constitute a ground for
disciplinary action unless it be clearly shown that his social relations be
clouded his official actuations with bias and partiality in favor of his friends
(pp. 403-405, rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of

the Court of Appeals, did not violate any law in acquiring by purchase a
parcel of land which was in litigation in his court and in engaging in
business by joining a private corporation during his incumbency as judge of
the Court of First Instance of Leyte, he should be reminded to be more
discreet in his private and business activities, because his conduct as a
member of the Judiciary must not only be characterized with propriety but
must always be above suspicion.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE

COURT OF APPEALS IS HEREBY REMINDED TO BE MORE DISCREET
IN HIS PRIVATE AND BUSINESS ACTIVITIES.

SO ORDERED.
Facts:
On June 8, 1963, respondent Judge Elias Asuncion rendered a decision in
Civil Case 3010 final for lack of an appeal.

On October 16, 1963, a project of partition was submitted to Judge

Asuncion. The project of partition of lots was not signed by the parties
themselves but only by the respective counsel of plaintiffs and petitioner
Bernardita R. Macariola. The Judge approved it in his order dated October
23, 1963.

One of the lots in the project of partition was Lot 1184, which was
subdivided into 5 lots denominated as Lot 1184 A E. Dr. Arcadio Galapon
bought Lot 1184-E on July 31, 1964, who was issued transfer of certificate
of Title No, 2338 of the Register of Deeds of Tacloban City. On March 6,
1965, Galapon sold a portion of the lot to Judge Asuncion and his wife.

On August 31, 1966, spouses Asuncion and Galapon conveyed their

respective shares and interest inn Lot 1184-E to the Traders Manufacturing
& Fishing Industries Inc. Judge Asuncion was the President and his wife
Victoria was the Secretary. The Asuncions and Galapons were also the
stockholder of the corporation.

Respondent Macariola charged Judge Asuncion with "Acts unbecoming a

Judge" for violating the following provisions: Article 1491, par. 5 of the New
Civil Code, Article 14, par. 1 & 5 of the Code of Commerce, Sec. 3 par H of
RA 3019 also known as the Anti-Graft & Corrupt Practice Act., Sec. 12,
Rule XVIII of the Civil Service Rules and Canon 25 of the Canons of
Judicial Ethics.

On November 2, 1970 a certain Judge Jose D. Nepomuceno dismissed the

complaints filed against Asuncion.

Issue:
Whether or Not the respondent Judge violated the mentioned provisions.

Ruling:
No. Judge Asuncion did not violate the mentioned provisions constituting of
"Acts unbecoming a Judge" but was reminded to be more discreet in his
private and business activities.
Respondent Judge did not buy the lot 1184-E directly on the plaintiffs in
Civil Case No. 3010 but from Dr. Galapon who earlier purchased the lot
from 3 of the plaintiffs. When the Asuncion bought the lot on March 6, 1965
from Dr. Galapon after the finality of the decision which he rendered on
June 8, 1963 in Civil Case No 3010 and his two orders dated October and
November, 1963. The said property was no longer the subject of litigation.

In the case at bar, Article 14 of Code of Commerce has no legal and

binding effect and cannot apply to the respondent. Upon the sovereignty
from the Spain to the US and to the Republic of the Philippines, Art. 14 of
this Code of Commerce, which sourced from the Spanish Code of
Commerce, appears to have been abrogated because whenever there is a
change in the sovereignty, political laws of the former sovereign are
automatically abrogated, unless they are reenacted by Affirmative Act of
the New Sovereign.

Asuncion cannot also be held liable under the par. H, Sec. 3 of RA 3019,
citing that the public officers cannot partake in any business in connection
with this office, or intervened or take part in his official capacity. The Judge
and his wife had withdrawn on January 31, 1967 from the corporation and
sold their respective shares to 3rd parties, and it appears that the
corporation did not benefit in any case filed by or against it in court as there
was no case filed in the different branches of the Court of First Instance
from the time of the drafting of the Articles of Incorporation of the
corporation on March 12, 1966 up to its incorporation on January 9, 1967.
The Judge realized early that their interest in the corporation contravenes
against Canon 25.

Alfonso Montebon v. The Director of Prisons, G.R. No. L-1352, April

30, 1947

G.R. No. L-1352 April 30, 1947

ALFONSO MONTEBON, ET AL., petitioners,

vs.
THE DIRECTOR OF PRISONS, ET AL., respondents.
Petitioner Montebon in his own behalf.
Acting First Assistant Solicitor General Gianzon and Solicitor Alejandro for
respondents.

TUASON, J.:

This is a petition for habeas corpus by Alfonso Montebon on behalf of

Elpidio S. Cruz, a prisoner at the Iwahig Penal Colony. A similar petition
was filed with this Court by Felicisima Santiago in the name of the same
prisoner (Santiago vs. Director of Prisons, 77 Phil., 927), a petition which
was denied by us in a decision promulgated on January 30, 1947. The
ground of the first petition was the alleged illegality of one of the prisoner's
three convictions for estafa. The present application contests the validity of
the prisoner's recommitment decreed by the Commissioner of Justice of the
Philippine Executive Commission under date of June 3, 1943, for the
unexpired portion of his (prisoner's) maximum aggregate sentences in
three cases in which he had been paroled by the Board of Indeterminate
Sentence on June 26, 1941, when he still had over five years to serve. The
commissioner of Justice's recommitment order was made by virtue of
Administrative Order No. 21, dated June 21, 1942, and approved by the
Chairman of the Executive Commission, which read: "The Board of
Indeterminate Sentence and the Board of Pardons having been abolished,
the powers, duties and functions thereof shall henceforth be assumed and
exercised by the Commissioner of Justice."

The petitioner does not reveal the nature of his interest in the prisoner's
incarceration, or what relation, if any, he has with him. As to the effect on
this case of our decision on the first application, res judicata as an inflexible
doctrine has been held not to apply in habeas corpus proceedings. Still the
court in the exercise of a sound judicial discretion, it has also been held,
may give controlling weight to the prior refusal. Such discretion was used
against the petitioner in Wong Doo vs. United States (68 Law. ed., 241), on
the ground that the petitioner had had full opportunity to offer in the first
case proof on the point he raised in the second. By a similar criterion and
reasonIng, that principle might be brought into play here. No reason
whatever is shown why the petitioner did not question in the first petition
the legality of the recommitment order of the Commissioner of Justice.
Nevertheless, we choose not to dispose of this application on a point of
procedural technicality, but will decide it on the merits.
The authority of the Commissioner of Justice under the then existing
government, laws, and military, executive and administrative orders, to take
over the powers, functions and duties of the Board of Indeterminate
Sentence, is beyond dispute. In an international sense it matters not how
the Commissioner of Justice was vested with that authority. For most
purposes the government of the occupant is likely to exercise the
lawmaking functions through decrees or regulations emanating from a
military source; and these become as effective in operation as though they
were expressed in statutory enactments. As a matter of practical
expediency the occupant may be disposed to utilize certain existing
agencies of that government and to suspend the operation of others. (III
Hyde, International Law, 2 ed., 1883.) This Court has held that the
Philippine Executive Commission was a de facto government, in Co Kim
Cham vs. Valdes Tan Keh and Dizon (75 Phil., 113).

As to whether the Indeterminate Sentence Act was in force during the

occupation, the answer is in the affirmative. A proclamation of the
Commander-in-Chief of the Japanese forces of January 2, 1942, directed
that "so far as the military administration permits, all the laws now in force
in the Commonwealth, as well as executive and judicial institutions, shall
continue to be effective for the time being as in the past." This was nothing
more than a confirmation of the well-known rule of the Law of Nations that
municipal laws, as contra-distinguished from laws of political nature, are not
abrogated by a change of sovereignty. (Co Kim Cham vs. Valdez Tan Keh
and Dizon, supra.) The Indeterminate Sentence Law is not a political law. It
does not affect political relations. In fact, it is a part of the Commonwealth's
criminal and penal system directly related to the punishment of crime and
the maintenance of public peace and order, which Article 43 of Section III
of the Hague Regulations of 1907 compels the belligerent occupant to take
all steps in his power to reestablish and insure as far as possible.

But the petitioner takes the position that the recommitment of which he
complains was not such an act of the belligerent occupant as should be
accorded respect and recognition by the Commonwealth Government, now
Republic of the Philippines, after the cessation of the enemy occupation.
We have only to refer to the Co Kim Cham case for a precedent that
refuses this contention. In that case it was said, "It is legal truism in political
and international law that all acts and proceedings of the legislative,
executive and judicial departments of a de facto government are good and
valid." We held that in consonance with the theory of jus postliminii in
international law, such acts and proceedings remained good and valid after
the liberation or re-occupation of the Philippines by the American and
Filipino forces. The decision cited Hall's work on International Law, 7th ed.,
p. 518, according to which the fact that the territory which has been
occupied by an enemy comes again into the power of its legitimate
government or sovereignty, does not, except in a very few cases, wipe out
the effects of acts done by the invader, which for one reason or another it is
within his competence to do.

Enforcement of the criminal law by the forces of occupation is not only valid
and binding; it is imposed on them as a high obligation by the Hague
Convention, as we have pointed out. The reason underlying requirement is
thus stated in William vs. Bruffy (96 U.S., 176, 192), cited in Co Kim Cham
vs. Valdez Tan Keh and Dizon, supra:

"The existence of a state of insurrection and war did not loosen the bonds
of society, or do away with civil government or the regular administration of
the laws. Order was to be preserved, police regulations maintained, crime
prosecuted, property protected, contracts enforced, marriages celebrated,
estates settled, and the transfer and descent of property regulated,
precisely as in the time of peace. No one, that we are aware of, seriously
questions the validity of judicial or legislative Acts in the insurrectionary
States touching these and kindred subjects, where they were not hostile in
their purpose or mode of enforcement to the authority of the National
Government, and did not impair the rights of citizens under the
Constitution." The same doctrine has been asserted in numerous other
cases.

The petition is denied without costs.

Paras, Pablo, Bengzon, and Padilla, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

The decision on this case hinges on the question raised by petitioner as to

the validity of the recommitment of prisoner Elpidio S. Cruz, as decreed by
the Commissioner of Justice of the Philippine Executive Commission on
June 3, 1943, to serve the unexpired portion of the maximum aggregate
sentences in three cases in which said prisoner had been paroled by the
Board of Indeterminate Sentence on June 26, 1941.

The Board of Indeterminate Sentence was abolished by virtue of

Administrative Order No. 21, issued on June 21, 1942, with the approval of
the Chairman of the Philippine Executive Commission under the Japanese
regime. Under the said administrative order, the powers, duties and
functions of the Board of Indeterminate Sentence and the Board of Pardons
had been transferred to the Commissioner of Justice of said Executive
Commission.

The majority decided to uphold the validity of Administrative Order No. 21,
dated June 21, 1942, and of the order of recommitment issued by the
Commissioner of Justice on June 3, 1943, on the strength of the majority
decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (75
Phil., 113).

For the reasons alleged in our dissenting opinions in said case of Co Kim
Cham vs. Valdez Tan Keh and Dizon, and others where the same
questions had been raised, we are constrained to dissent. We are of
opinion that both Administrative Order No. 21 and the order of the
Commissioner of Justice on June 3, 1943, are null and void under a
proclamation of General MacArthur, and under the provisions of our
Constitution. As we have explained in our concurring opinion in Laurel vs.
Misa (77 Phil., 856), no governmental act shall be recognized as valid
unless made under the authority of our people, on whom, according to our
fundamental law, sovereignty resides exclusively. The acts of the Philippine
Executive Commission and of the Commissioner of Justice during enemy
occupation having been made under the exclusive authority of the
Japanese Imperial Government should not be given any validity.

For all the foregoing, we vote for the immediate release of prisoner Elpidio
S. Cruz.

Romana Locquiao Valencia and Constancia L. Valencia v. Benito A.

Locquaio G.R. No. 122134, October 3, 2003
G.R. No. 122134 October 3, 2003

ROMANA LOCQUIAO VALENCIA and CONSTANCIA L. VALENCIA,

petitioners,
vs.
BENITO A. LOCQUIAO, now deceased and substituted by JIMMY
LOCQUIAO, TOMASA MARA and the REGISTRAR OF DEEDS OF
PANGASINAN, respondents.

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

CONSTANCIA L. VALENCIA, petitioner,

vs.
BENITO A. LOCQUIAO, now deceased and substituted by JIMMY
LOCQUIAO, respondent.

DECISION

TINGA, J.:

The Old Civil Code1 and the Old Code of Civil Procedure,2 repealed laws
that they both are notwithstanding, have not abruptly become mere
quiescent items of legal history since their relevance do not wear off for a
long time. Verily, the old statutes proved to be decisive in the adjudication
of the case at bar.

Before us is a petition for review seeking to annul and set aside the joint
Decision3 dated November 24, 1994, as well as the Resolution4 dated
September 8, 1995, of the former Tenth Division5 of the Court of Appeals
in two consolidated cases involving an action for annulment of title6 and an
action for ejectment.7

Both cases involve a parcel of land consisting of 4,876 square meters

situated in Urdaneta, Pangasinan. This land was originally owned by the
spouses Herminigildo and Raymunda Locquiao, as evidenced by Original
Certificate of Title No. 183838 issued on October 3, 1917 by the Register of
Deeds of Pangasinan.

On May 22, 1944, Herminigildo and Raymunda Locquiao executed a deed

of donation propter nuptias which was written in the Ilocano dialect,
denominated as Inventario Ti Sagut9 in favor of their son, respondent
Benito Locquiao (hereafter, respondent Benito) and his prospective bride,
respondent Tomasa Mara (hereafter, respondent Tomasa). By the terms of
the deed, the donees were gifted with four (4) parcels of land, including the
land in question, as well as a male cow and one-third (1/3) portion of the
conjugal house of the donor parents, in consideration of the impending
marriage of the donees.

The donees took their marriage vows on June 4, 1944 and the fact of their
marriage was inscribed at the back of O.C.T. No. 18383.10

Herminigildo and Raymunda died on December 15, 1962 and January 9,

1968, respectively, leaving as heirs their six (6) children, namely:
respondent Benito, Marciano, Lucio, Emeteria, Anastacia, and petitioner
Romana, all surnamed Locquiao11. With the permission of respondents
Benito and Tomasa, petitioner Romana Valencia (hereinafter, Romana)
took possession and cultivated the subject land.12 When respondent
Romanas husband got sick sometime in 1977, her daughter petitioner
Constancia Valencia (hereafter, petitioner Constancia) took over, and since
then, has been in possession of the land.13

Meanwhile, respondents Benito and Tomasa registered the Inventario Ti

Sagut with the Office of the Register of Deeds of Pangasinan on May 15,
1970.14 In due course, the original title was cancelled and in lieu thereof
Transfer Certificate of Title No. 8489715 was issued in the name of the
respondents Benito and Tomasa.

On March 18, 1973, the heirs of the Locquiao spouses, including

respondent Benito and petitioner Romana, executed a Deed of Partition
with Recognition of Rights,16 wherein they distributed among only three (3)
of them, the twelve (12) parcels of land left by their common progenitors,
excluding the land in question and other lots disposed of by the Locquiao
spouses earlier. Contained in the deed is a statement that respondent
Benito and Marciano Locquiao, along with the heirs of Lucio Locquiao,
"have already received our shares in the estates of our parents, by virtue of
previous donations and conveyances," and that for that reason the heirs of
Lucio Locquaio were not made parties to the deed. All the living children of
the Locquaio spouses at the time, including petitioner Romana, confirmed
the previous dispositions and waived their rights to whomsoever the
properties covered by the deed of partition were adjudicated.17

Later on, disagreements among five (5) heirs or groups of heirs, including
petitioner Romana, concerning the distribution of two (2) of the lots covered
by the deed of partition which are Lots No. 2467 and 5567 of the Urdaneta
Cadastral Survey surfaced. As their differences were settled, the heirs
concerned executed a Deed of Compromise Agreement18 on June 12,
1976, which provided for the re-distribution of the two (2) lots. Although not
directly involved in the discord, Benito signed the compromise agreement
together with his feuding siblings, nephews and nieces. Significantly, all the
signatories to the compromise agreement, including petitioner Romana,
confirmed all the other stipulations and provisions of the deed of
partition.19

Sometime in 1983, the apparent calm pervading among the heirs was
disturbed when petitioner Constancia filed an action for annulment of title
against the respondents before the Regional Trial Court of Pangasinan.20
The record shows that the case was dismissed by the trial court but it does
not indicate the reason for the dismissal.21

On December 13, 1983, respondent Benito filed with the Municipal Trial
Court of Urdaneta, Pangasinan a Complaint22 seeking the ejectment of
petitioner Constancia from the subject property.

On November 25, 1985, the Municipal Trial Court rendered a Decision,23

ordering the defendant in the case, petitioner Constancia, to vacate the
land in question.

Petitioners Romana and Constancia countered with a Complaint24 for the

annulment of Transfer Certificate of Title No. 84897 against respondents
Benito and Tomasa 25 which they filed with the Regional Trial Court of
Pangasinan on December 23, 1985. Petitioners alleged that the issuance
of the transfer certificate of title was fraudulent; that the Inventario Ti Sagut
is spurious; that the notary public who notarized the document had no
authority to do so, and; that the donation did not observe the form required
by law as there was no written acceptance on the document itself or in a
separate public instrument.1a\^/phi1.net

Meanwhile, the decision in the ejectment case was appealed to the same
RTC where the case for annulment of title was also pending. Finding that
the question of ownership was the central issue in both cases, the court
issued an Order26 suspending the proceedings in the ejectment case until
it shall have decided the ownership issue in the title annulment case.

After trial, the RTC rendered a Decision27 dated January 30, 1989
dismissing the complaint for annulment of title on the grounds of
prescription and laches. It likewise ruled that the Inventario Ti Sagut is a
valid public document which transmitted ownership over the subject land to
the respondents. With the dismissal of the complaint and the confirmation
of the respondents title over the subject property, the RTC affirmed in toto
the decision of the MTC in the ejectment case28.

Dissatisfied, petitioners elevated the two (2) decisions to the respondent

Court of Appeals. Since they involve the same parties and the same
property, the appealed cases were consolidated by the appellate court.

On November 24, 1994, the Court of Appeals rendered the assailed

Decision affirming the appealed RTC decisions. The appellate court upheld
the RTCs conclusion that the petitioners cause of action had already
prescribed, considering that the complaint for annulment of title was filed
more than fifteen (15) years after the issuance of the title, or beyond the ten
(10) - year prescriptive period for actions for reconveyance. It likewise
rejected the petitioners assertion that the donation propter nuptias is null
and void for want of acceptance by the donee, positing that the implied
acceptance flowing from the very fact of marriage between the
respondents, coupled with the registration of the fact of marriage at the
back of OCT No. 18383, constitutes substantial compliance with the
requirements of the law.

The petitioners filed a Motion for Reconsideration29 but it was denied by

the appellate court in its Resolution30 dated September 8, 1995. Hence,
this petition.

We find the petition entirely devoid of merit.

Concerning the annulment case, the issues to be threshed out are: (1)
whether the donation propter nuptias is authentic; (2) whether acceptance
of the donation by the donees is required; (3) if so, in what form should the
acceptance appear, and; (4) whether the action is barred by prescription
and laches.
The Inventario Ti Sagut which contains the donation propter nuptias was
executed and notarized on May 22, 1944. It was presented to the Register
of Deeds of Pangasinan for registration on May 15, 1970. The photocopy of
the document presented in evidence as Exhibit "8" was reproduced from
the original kept in the Registry of Deeds of Pangasinan.31

The petitioners have launched a two-pronged attack against the validity of

the donation propter nuptias, to wit: first, the Inventario Ti Sagut is not
authentic; and second, even assuming that it is authentic, it is void for the
donees failure to accept the donation in a public instrument.

To buttress their claim that the document was falsified, the petitioners rely
mainly on the Certification32 dated July 9, 1984 of the Records
Management and Archives Office that there was no notarial record for the
year 1944 of Cipriano V. Abenojar who notarized the document on May 22,
1944 and that therefore a copy of the document was not available.

The certification is not sufficient to prove the alleged inexistence or

spuriousness of the challenged document. The appellate court is correct in
pointing out that the mere absence of the notarial record does not prove
that the notary public does not have a valid notarial commission and neither
does the absence of a file copy of the document with the archives effect
evidence of the falsification of the document.33 This Court ruled that the
failure of the notary public to furnish a copy of the deed to the appropriate
office is a ground for disciplining him, but certainly not for invalidating the
document or for setting aside the transaction therein involved.34

Moreover, the heirs of the Locquaio spouses, including petitioner Romana,

made reference in the deed of partition and the compromise agreement to
the previous donations made by the spouses in favor of some of the heirs.
As pointed out by the RTC,35 respondent Benito was not allotted any share
in the deed of partition precisely because he received his share by virtue of
previous donations. His name was mentioned in the deed of partition only
with respect to the middle portion of Lot No. 2638 which is the eleventh
(11th) parcel in the deed but that is the same one-third (1/3) portion of Lot
No. 2638 covered by O.C.T. No. 18259 included in the donation propter
nuptias.1awphi1.nt Similarly, Marciano Locquiao and the heirs of Lucio
Locquiao were not allocated any more share in the deed of partition since
they received theirs by virtue of prior donations or conveyances.
The pertinent provisions of the deed of partition read:

That the heirs of Lucio Locquiao are not included in this Partition by reason
of the fact that in the same manner as we, BENITO and MARCIANO
LOCQUIAO are concerned, we have already received our shares in the
estate of our parents by virtue of previous donations and conveyances, and
that we hereby confirm said dispositions, waiving our rights to whomsoever
will these properties will now be adjudicated;

That we, the Parties herein, do hereby waive and renounce as against
each other any claim or claims that we may have against one or some of
us, and that we recognize the rights of ownership of our co-heirs with
respect to those parcels already distributed and adjudicated and that in the
event that one of us is cultivating or in possession of any one of the parcels
of land already adjudicated in favor of another heir or has been conveyed,
donated or disposed of previously, in favor of another heir, we do hereby
renounce and waive our right of possession in favor of the heir in whose
favor the donation or conveyance was made previously.36 (Emphasis
supplied)

The exclusion of the subject property in the deed of partition dispels any
doubt as to the authenticity of the earlier Inventario Ti Sagut.

This brings us to the admissibility of the Deed of Partition with Recognition

of Rights, marked as Exhibit "2", and the Deed of Compromise Agreement,
marked as Exhibit "3".

The petitioners fault the RTC for admitting in evidence the deed of partition
and the compromise agreement on the pretext that the documents "were
not properly submitted in evidence", pointing out that "when presented to
respondent Tomasa Mara for identification, she simply stated that she
knew about the documents but she did not actually identify them."37

The argument is not tenable. Firstly, objection to the documentary evidence

must be made at the time it is formally offered.38 Since the petitioners did
not even bother to object to the documents at the time they were offered in
evidence,39 it is now too late in the day for them to question their
admissibility. Secondly, the documents were identified during the Pre-Trial,
marked as Exhibits "2" and "3" and testified on by respondent Tomasa.40
Thirdly, the questioned deeds, being public documents as they were duly
notarized, are admissible in evidence without further proof of their due
execution and are conclusive as to the truthfulness of their contents, in the
absence of clear and convincing evidence to the contrary.41 A public
document executed and attested through the intervention of the notary
public is evidence of the facts therein expressed in clear, unequivocal
manner.42

Concerning the issue of form, petitioners insist that based on a provision43

of the Civil Code of Spain (Old Civil Code), the acceptance by the donees
should be made in a public instrument. This argument was rejected by the
RTC and the appellate court on the theory that the implied acceptance of
the donation had flowed from the celebration of the marriage between the
respondents, followed by the registration of the fact of marriage at the back
of OCT No. 18383.

The petitioners, the appellate court and the trial court all erred in applying
the requirements on ordinary donations to the present case instead of the
rules on donation propter nuptias. Underlying the blunder is their failure to
take into account the fundamental dichotomy between the two kinds of
donations.

Unlike ordinary donations, donations propter nuptias or donations by

reason of marriage are those "made before its celebration, in consideration
of the same and in favor of one or both of the future spouses."44 The
distinction is crucial because the two classes of donations are not governed
by exactly the same rules, especially as regards the formal essential
requisites.

Under the Old Civil Code, donations propter nuptias must be made in a
public instrument in which the property donated must be specifically
described.45 However, Article 1330 of the same Code provides that
"acceptance is not necessary to the validity of such gifts". In other words,
the celebration of the marriage between the beneficiary couple, in tandem
with compliance with the prescribed form, was enough to effectuate the
donation propter nuptias under the Old Civil Code.
Under the New Civil Code, the rules are different. Article 127 thereof
provides that the form of donations propter nuptias are regulated by the
Statute of Frauds. Article 1403, paragraph 2, which contains the Statute of
Frauds requires that the contracts mentioned thereunder need be in writing
only to be enforceable. However, as provided in Article 129, express
acceptance "is not necessary for the validity of these donations." Thus,
implied acceptance is sufficient.

The pivotal question, therefore, is which formal requirements should be

applied with respect to the donation propter nuptias at hand. Those under
the Old Civil Code or the New Civil Code?

It is settled that only laws existing at the time of the execution of a contract
are applicable thereto and not later statutes, unless the latter are
specifically intended to have retroactive effect.46 Consequently, it is the
Old Civil Code which applies in this case since the donation propter nuptias
was executed in 1944 and the New Civil Code took effect only on August
30, 1950.47 The fact that in 1944 the Philippines was still under Japanese
occupation is of no consequence. It is a well-known rule of the Law of
Nations that municipal laws, as contra-distinguished from laws of political
nature, are not abrogated by a change of sovereignty.48 This Court
specifically held that during the Japanese occupation period, the Old Civil
Code was in force.49 As a consequence, applying Article 1330 of the Old
Civil Code in the determination of the validity of the questioned donation, it
does not matter whether or not the donees had accepted the donation. The
validity of the donation is unaffected in either case.

Even the petitioners agree that the Old Civil Code should be applied.
However, they invoked the wrong provisions50 thereof.

Even if the provisions of the New Civil Code were to be applied, the case of
the petitioners would collapse just the same. As earlier shown, even
implied acceptance of a donation propter nuptias suffices under the New
Civil Code.51

With the genuineness of the donation propter nuptias and compliance with
the applicable mandatory form requirements fully established, petitioners
hypothesis that their action is imprescriptible cannot take off.
Viewing petitioners action for reconveyance from whatever feasible legal
angle, it is definitely barred by prescription. Petitioners right to file an action
for the reconveyance of the land accrued in 1944, when the Inventario Ti
Sagut was executed. It must be remembered that before the effectivity of
the New Civil Code in 1950, the Old Code of Civil Procedure (Act No. 190)
governed prescription.52 Under the Old Code of Civil Procedure, an action
for recovery of the title to, or possession of, real property, or an interest
therein, can only be brought within ten years after the cause of such action
accrues.53 Thus, petitioners action, which was filed on December 23,
1985, or more than forty (40) years from the execution of the deed of
donation on May 22, 1944, was clearly time-barred.

Even following petitioners theory that the prescriptive period should

commence from the time of discovery of the alleged fraud, the conclusion
would still be the same. As early as May 15, 1970, when the deed of
donation was registered and the transfer certificate of title was issued,
petitioners were considered to have constructive knowledge of the alleged
fraud, following the jurisprudential rule that registration of a deed in the
public real estate registry is constructive notice to the whole world of its
contents, as well as all interests, legal and equitable, included therein.54
As it is now settled that the prescriptive period for the reconveyance of
property allegedly registered through fraud is ten (10) years, reckoned from
the date of the issuance of the certificate of title,55 the action filed on
December 23, 1985 has clearly prescribed.

In any event, independent of prescription, petitioners action is dismissible

on the ground of laches. The elements of laches are present in this case,
viz:

(1) conduct on the part of the defendant, or one under whom he claims,
giving rise to the situation that led to the complaint and for which the
complainant seeks a remedy;

(2) delay in asserting the complainants rights, having had knowledge or

notice of defendants conduct and having been afforded an opportunity to
institute a suit;

(3) lack of knowledge or notice on the part of the defendant that the
complainant would assert the right on which he bases his suit, and
(4) injury or prejudice to the defendant in the event relief is accorded to the
complainant, or the suit is not held barred.56

Of the facts which support the finding of laches, stress should be made of
the following: (a) the petitioners Romana unquestionably gained actual
knowledge of the donation propter nuptias when the deed of partition was
executed in 1973 and the information must have surfaced again when the
compromise agreement was forged in 1976, and; (b) as petitioner Romana
was a party-signatory to the two documents, she definitely had the
opportunity to question the donation propter nuptias on both occasions, and
she should have done so if she were of the mindset, given the fact that she
was still in possession of the land in dispute at the time. But she did not
make any move. She tarried for eleven (11) more years from the execution
of the deed of partition until she, together with petitioner Constancia, filed
the annulment case in 1985.

Anent the ejectment case, we find the issues raised by the petitioners to be
factual and, therefore, beyond this Courts power of review. Not being a
trier of facts, the Court is not tasked to go over the proofs presented by the
parties and analyze, assess, and weigh them to ascertain if the trial court
and the appellate court were correct in according them superior credit in
this or that piece of evidence of one party or the other.57 In any event,
implicit in the affirmance of the Court of Appeals is the existence of
substantial evidence supporting the decisions of the courts below.

WHEREFORE, finding no reversible error in the assailed decision, the

same is hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, and Callejo, Sr., JJ., concur.

Austria-Martinez, J., no part. Concurred in CA decision.

Doctrine of Constitutional Supremacy
Social Justice v. Dangerous Drugs Board, G.R. Nos. 157870, 158633
and 161658, 570 SCRA 410, November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), G.R. No. 157870

Petitioner,
- versus -

DANGEROUS DRUGS BOARD and

PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA),
Respondents.
x-----------------------------------------------x
ATTY. MANUEL J. LASERNA, JR., G.R. No. 158633
Petitioner,

- versus -

DANGEROUS DRUGS BOARD and

PHILIPPINE DRUG ENFORCEMENT
AGENCY,
Respondents.
x-----------------------------------------------x
AQUILINO Q. PIMENTEL, JR., G.R. No. 161658
Petitioner,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
- versus - CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent.
November 3, 2008
x-----------------------------------------------------------------------------------------x
DECISION

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act
No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs
Act of 2002, insofar as it requires mandatory drug testing of candidates for
public office, students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged before the
prosecutors office with certain offenses, among other personalities, is put in
issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by
any government forensic laboratories or by any of the drug testing
laboratories accredited and monitored by the DOH to safeguard the quality
of the test results. x x x The drug testing shall employ, among others, two
(2) testing methods, the screening test which will determine the positive
result as well as the type of drug used and the confirmatory test which will
confirm a positive screening test. x x x The following shall be subjected to
undergo drug testing:

xxxx

(c) Students of secondary and tertiary schools.Students of secondary and

tertiary schools shall, pursuant to the related rules and regulations as
contained in the schools student handbook and with notice to the parents,
undergo a random drug testing x x x;
(d) Officers and employees of public and private offices.Officers and
employees of public and private offices, whether domestic or overseas,
shall be subjected to undergo a random drug test as contained in the
companys work rules and regulations, x x x for purposes of reducing the
risk in the workplace. Any officer or employee found positive for use of
dangerous drugs shall be dealt with administratively which shall be a
ground for suspension or termination, subject to the provisions of Article
282 of the Labor Code and pertinent provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutors office with a criminal offense
having an imposable penalty of imprisonment of not less than six (6) years
and one (1) day shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the
national or local government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be

positive for dangerous drugs use shall be subject to the provisions of
Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued

Resolution No. 6486, prescribing the rules and regulations on the
mandatory drug testing of candidates for public office in connection with the
May 10, 2004 synchronized national and local elections. The pertinent
portions of the said resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing.x x x

xxxx
(g) All candidates for public office x x x both in the national or local
government shall undergo a mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides that
public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and
efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the

public will know the quality of candidates they are electing and they will be
assured that only those who can serve with utmost responsibility, integrity,
loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it

under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election
Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it
hereby promulgates, the following rules and regulations on the conduct of
mandatory drug testing to candidates for public office[:]

SECTION 1. Coverage.All candidates for public office, both national and

local, in the May 10, 2004 Synchronized National and Local Elections shall
undergo mandatory drug test in government forensic laboratories or any
drug testing laboratories monitored and accredited by the Department of
Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their
respective offices, the Comelec Offices and employees concerned shall
submit to the Law Department two (2) separate lists of candidates. The first
list shall consist of those candidates who complied with the mandatory drug
test while the second list shall consist of those candidates who failed to
comply x x x.

SEC. 4. Preparation and publication of names of candidates.Before the

start of the campaign period, the [COMELEC] shall prepare two separate
lists of candidates. The first list shall consist of those candidates who
complied with the mandatory drug test while the second list shall consist of
those candidates who failed to comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test
certificate.No person elected to any public office shall enter upon the duties
of his office until he has undergone mandatory drug test and filed with the
offices enumerated under Section 2 hereof the drug test certificate herein
required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a

candidate for re-election in the May 10, 2004 elections,[1] filed a Petition for
Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec.
36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December
23, 2003 for being unconstitutional in that they impose a qualification for
candidates for senators in addition to those already provided for in the 1987
Constitution; and (2) to enjoin the COMELEC from implementing
Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the
Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural-born

citizen of the Philippines, and, on the day of the election, is at least thirty-
five years of age, able to read and write, a registered voter, and a resident
of the Philippines for not less than two years immediately preceding the day
of the election.

According to Pimentel, the Constitution only prescribes a maximum of five

(5) qualifications for one to be a candidate for, elected to, and be a member
of the Senate. He says that both the Congress and COMELEC, by
requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant,
among other candidates, to undergo a mandatory drug test, create an
additional qualification that all candidates for senator must first be certified
as drug free. He adds that there is no provision in the Constitution
authorizing the Congress or COMELEC to expand the qualification
requirements of candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social Justice Society
(SJS), a registered political party, seeks to prohibit the Dangerous Drugs
Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from
enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the
ground that they are constitutionally infirm. For one, the provisions
constitute undue delegation of legislative power when they give unbridled
discretion to schools and employers to determine the manner of drug
testing. For another, the provisions trench in the equal protection clause
inasmuch as they can be used to harass a student or an employee deemed
undesirable. And for a third, a persons constitutional right against
unreasonable searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks
in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c),
(d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing
on the constitutional right to privacy, the right against unreasonable search
and seizure, and the right against self-incrimination, and for being contrary
to the due process and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the
matter of the standing of petitioners SJS and Laserna to sue. As
respondents DDB and PDEA assert, SJS and Laserna failed to allege any
incident amounting to a violation of the constitutional rights mentioned in
their separate petitions.[2]

It is basic that the power of judicial review can only be exercised in

connection with a bona fide controversy which involves the statute sought
to be reviewed.[3] But even with the presence of an actual case or
controversy, the Court may refuse to exercise judicial review unless the
constitutional question is brought before it by a party having the requisite
standing to challenge it.[4] To have standing, one must establish that he or
she has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to
the challenged action; and the injury is likely to be redressed by a favorable
action.[5]

The rule on standing, however, is a matter of procedure; hence, it can be

relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the matter is
of transcendental importance, of overarching significance to society, or of
paramount public interest.[6] There is no doubt that Pimentel, as senator of
the Philippines and candidate for the May 10, 2004 elections, possesses
the requisite standing since he has substantial interests in the subject
matter of the petition, among other preliminary considerations. Regarding
SJS and Laserna, this Court is wont to relax the rule on locus standi owing
primarily to the transcendental importance and the paramount public
interest involved in the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose
an additional qualification for candidates for senator? Corollarily, can
Congress enact a law prescribing qualifications for candidates for senator
in addition to those laid down by the Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165
unconstitutional? Specifically, do these paragraphs violate the right to
privacy, the right against unreasonable searches and seizure, and the
equal protection clause? Or do they constitute undue delegation of
legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC

Resolution No. 6486 illegally impose an additional qualification on
candidates for senator. He points out that, subject to the provisions on
nuisance candidates, a candidate for senator needs only to meet the
qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1)
citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency.
Beyond these stated qualification requirements, candidates for senator
need not possess any other qualification to run for senator and be voted
upon and elected as member of the Senate. The Congress cannot validly
amend or otherwise modify these qualification standards, as it cannot
disregard, evade, or weaken the force of a constitutional mandate,[7] or
alter or enlarge the Constitution.

Pimentels contention is well-taken. Accordingly, Sec. 36(g) of RA 9165

should be, as it is hereby declared as, unconstitutional. It is basic that if a
law or an administrative rule violates any norm of the Constitution, that
issuance is null and void and has no effect. The Constitution is the basic
law to which all laws must conform; no act shall be valid if it conflicts with
the Constitution.[8] In the discharge of their defined functions, the three
departments of government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes must be
observed.[9]

Congress inherent legislative powers, broad as they may be, are subject to
certain limitations. As early as 1927, in Government v. Springer, the Court
has defined, in the abstract, the limits on legislative power in the following
wise:

Someone has said that the powers of the legislative department of the
Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments acting under
delegated authority, the powers of each of the departments x x x are limited
and confined within the four walls of the constitution or the charter, and
each department can only exercise such powers as are necessarily implied
from the given powers. The Constitution is the shore of legislative authority
against which the waves of legislative enactment may dash, but over which
it cannot leap.[10]

Thus, legislative power remains limited in the sense that it is subject to

substantive and constitutional limitations which circumscribe both the
exercise of the power itself and the allowable subjects of legislation.[11]
The substantive constitutional limitations are chiefly found in the Bill of
Rights[12] and other provisions, such as Sec. 3, Art. VI of the Constitution
prescribing the qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and
administering election laws or promulgating rules and regulations to
implement Sec. 36(g), validly impose qualifications on candidates for
senator in addition to what the Constitution prescribes. If Congress cannot
require a candidate for senator to meet such additional qualification, the
COMELEC, to be sure, is also without such power. The right of a citizen in
the democratic process of election should not be defeated by unwarranted
impositions of requirement not otherwise specified in the Constitution.[13]
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed
COMELEC resolution, effectively enlarges the qualification requirements
enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec.
36(g) unmistakably requires a candidate for senator to be certified illegal-
drug clean, obviously as a pre-condition to the validity of a certificate of
candidacy for senator or, with like effect, a condition sine qua non to be
voted upon and, if proper, be proclaimed as senator-elect. The COMELEC
resolution completes the chain with the proviso that [n]o person elected to
any public office shall enter upon the duties of his office until he has
undergone mandatory drug test. Viewed, therefore, in its proper context,
Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add
another qualification layer to what the 1987 Constitution, at the minimum,
requires for membership in the Senate. Whether or not the drug-free bar
set up under the challenged provision is to be hurdled before or after
election is really of no moment, as getting elected would be of little value if
one cannot assume office for non-compliance with the drug-testing
requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA

9165, that the provision does not expressly state that non-compliance with
the drug test imposition is a disqualifying factor or would work to nullify a
certificate of candidacy. This argument may be accorded plausibility if the
drug test requirement is optional. But the particular section of the law,
without exception, made drug-testing on those covered mandatory,
necessarily suggesting that the obstinate ones shall have to suffer the
adverse consequences for not adhering to the statutory command. And
since the provision deals with candidates for public office, it stands to
reason that the adverse consequence adverted to can only refer to and
revolve around the election and the assumption of public office of the
candidates. Any other construal would reduce the mandatory nature of Sec.
36(g) of RA 9165 into a pure jargon without meaning and effect
whatsoever.
While it is anti-climactic to state it at this juncture, COMELEC Resolution
No. 6486 is no longer enforceable, for by its terms, it was intended to cover
only the May 10, 2004 synchronized elections and the candidates running
in that electoral event. Nonetheless, to obviate repetition, the Court deems
it appropriate to review and rule, as it hereby rules, on its validity as an
implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality

of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional
provision defining the qualification or eligibility requirements for one
aspiring to run for and serve as senator.

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for
secondary and tertiary level students and public and private employees,
while mandatory, is a random and suspicionless arrangement. The
objective is to stamp out illegal drug and safeguard in the process the well
being of [the] citizenry, particularly the youth, from the harmful effects of
dangerous drugs. This statutory purpose, per the policy-declaration portion
of the law, can be achieved via the pursuit by the state of an intensive and
unrelenting campaign against the trafficking and use of dangerous drugs x
x x through an integrated system of planning, implementation and
enforcement of anti-drug abuse policies, programs and projects.[14] The
primary legislative intent is not criminal prosecution, as those found positive
for illegal drug use as a result of this random testing are not necessarily
treated as criminals. They may even be exempt from criminal liability
should the illegal drug user consent to undergo rehabilitation. Secs. 54 and
55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement,

Treatment and Rehabilitation.A drug dependent or any person who violates
Section 15 of this Act may, by himself/herself or through his/her parent,
[close relatives] x x x apply to the Board x x x for treatment and
rehabilitation of the drug dependency. Upon such application, the Board
shall bring forth the matter to the Court which shall order that the applicant
be examined for drug dependency. If the examination x x x results in the
certification that the applicant is a drug dependent, he/she shall be ordered
by the Court to undergo treatment and rehabilitation in a Center designated
by the Board x x x.
xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary
Submission Program.A drug dependent under the voluntary submission
program, who is finally discharged from confinement, shall be exempt from
the criminal liability under Section 15 of this Act subject to the following
conditions:

xxxx

School children, the US Supreme Court noted, are most vulnerable to the
physical, psychological, and addictive effects of drugs. Maturing nervous
systems of the young are more critically impaired by intoxicants and are
more inclined to drug dependency. Their recovery is also at a depressingly
low rate.[15]

The right to privacy has been accorded recognition in this jurisdiction as a

facet of the right protected by the guarantee against unreasonable search
and seizure[16] under Sec. 2, Art. III[17] of the Constitution. But while the
right to privacy has long come into its own, this case appears to be the first
time that the validity of a state-decreed search or intrusion through the
medium of mandatory random drug testing among students and employees
is, in this jurisdiction, made the focal point. Thus, the issue tendered in
these proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence.

With respect to random drug testing among school children, we turn to the
teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of
Education of Independent School District No. 92 of Pottawatomie County,
et al. v. Earls, et al. (Board of Education),[18] both fairly pertinent US
Supreme Court-decided cases involving the constitutionality of
governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address

the drug menace in their respective institutions following the discovery of
frequent drug use by school athletes. After consultation with the parents,
they required random urinalysis drug testing for the schools athletes.
James Acton, a high school student, was denied participation in the football
program after he refused to undertake the urinalysis drug testing. Acton
forthwith sued, claiming that the schools drug testing policy violated, inter
alia, the Fourth Amendment[19] of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in

Vernonia, considered the following: (1) schools stand in loco parentis over
their students; (2) school children, while not shedding their constitutional
rights at the school gate, have less privacy rights; (3) athletes have less
privacy rights than non-athletes since the former observe communal
undress before and after sports events; (4) by joining the sports activity, the
athletes voluntarily subjected themselves to a higher degree of school
supervision and regulation; (5) requiring urine samples does not invade a
students privacy since a student need not undress for this kind of drug
testing; and (6) there is need for the drug testing because of the dangerous
effects of illegal drugs on the young. The US Supreme Court held that the
policy constituted reasonable search under the Fourth[20] and 14th
Amendments and declared the random drug-testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh,

Oklahoma required a drug test for high school students desiring to join
extra-curricular activities. Lindsay Earls, a member of the show choir,
marching band, and academic team declined to undergo a drug test and
averred that the drug-testing policy made to apply to non-athletes violated
the Fourth and 14th Amendments. As Earls argued, unlike athletes who
routinely undergo physical examinations and undress before their peers in
locker rooms, non-athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug

testing even among non-athletes on the basis of the schools custodial
responsibility and authority. In so ruling, said court made no distinction
between a non-athlete and an athlete. It ratiocinated that schools and
teachers act in place of the parents with a similar interest and duty of
safeguarding the health of the students. And in holding that the school
could implement its random drug-testing policy, the Court hinted that such
a test was a kind of search in which even a reasonable parent might need
to engage.

In sum, what can reasonably be deduced from the above two cases and
applied to this jurisdiction are: (1) schools and their administrators stand in
loco parentis with respect to their students; (2) minor students have
contextually fewer rights than an adult, and are subject to the custody and
supervision of their parents, guardians, and schools; (3) schools, acting in
loco parentis, have a duty to safeguard the health and well-being of their
students and may adopt such measures as may reasonably be necessary
to discharge such duty; and (4) schools have the right to impose conditions
on applicants for admission that are fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and
so holds that the provisions of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are constitutional. Indeed, it is within
the prerogative of educational institutions to require, as a condition for
admission, compliance with reasonable school rules and regulations and
policies. To be sure, the right to enroll is not absolute; it is subject to fair,
reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in
the country that threatens the well-being of the people,[21] particularly the
youth and school children who usually end up as victims. Accordingly, and
until a more effective method is conceptualized and put in motion, a
random drug testing of students in secondary and tertiary schools is not
only acceptable but may even be necessary if the safety and interest of the
student population, doubtless a legitimate concern of the government, are
to be promoted and protected. To borrow from Vernonia, [d]eterring drug
use by our Nations schoolchildren is as important as enhancing efficient
enforcement of the Nations laws against the importation of drugs; the
necessity for the State to act is magnified by the fact that the effects of a
drug-infested school are visited not just upon the users, but upon the entire
student body and faculty.[22] Needless to stress, the random testing
scheme provided under the law argues against the idea that the testing
aims to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory
but random drug test prescribed by Sec. 36 of RA 9165 for officers and
employees of public and private offices is justifiable, albeit not exactly for
the same reason. The Court notes in this regard that petitioner SJS, other
than saying that subjecting almost everybody to drug testing, without
probable cause, is unreasonable, an unwarranted intrusion of the individual
right to privacy,[23] has failed to show how the mandatory, random, and
suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the
right to privacy and constitutes unlawful and/or unconsented search under
Art. III, Secs. 1 and 2 of the Constitution.[24] Petitioner Lasernas lament is
just as simplistic, sweeping, and gratuitous and does not merit serious
consideration. Consider what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made

various rulings on the constitutionality of mandatory drug tests in the school
and the workplaces. The US courts have been consistent in their rulings
that the mandatory drug tests violate a citizens constitutional right to
privacy and right against unreasonable search and seizure. They are
quoted extensively hereinbelow.[25]

The essence of privacy is the right to be left alone.[26] In context, the right
to privacy means the right to be free from unwarranted exploitation of ones
person or from intrusion into ones private activities in such a way as to
cause humiliation to a persons ordinary sensibilities. [27] And while there
has been general agreement as to the basic function of the guarantee
against unwarranted search, translation of the abstract prohibition against
unreasonable searches and seizures into workable broad guidelines for the
decision of particular cases is a difficult task, to borrow from C. Camara v.
Municipal Court.[28] Authorities are agreed though that the right to privacy
yields to certain paramount rights of the public and defers to the states
exercise of police power.[29]

As the warrantless clause of Sec. 2, Art III of the Constitution is couched

and as has been held, reasonableness is the touchstone of the validity of a
government search or intrusion.[30] And whether a search at issue hews to
the reasonableness standard is judged by the balancing of the government-
mandated intrusion on the individuals privacy interest against the promotion
of some compelling state interest.[31] In the criminal context,
reasonableness requires showing of probable cause to be personally
determined by a judge. Given that the drug-testing policy for employeesand
students for that matterunder RA 9165 is in the nature of administrative
search needing what was referred to in Vernonia as swift and informal
disciplinary procedures, the probable-cause standard is not required or
even practicable. Be that as it may, the review should focus on the
reasonableness of the challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of

the privacy interest upon which the drug testing, which effects a search
within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this
case, the office or workplace serves as the backdrop for the analysis of the
privacy expectation of the employees and the reasonableness of drug
testing requirement. The employees privacy interest in an office is to a
large extent circumscribed by the companys work policies, the collective
bargaining agreement, if any, entered into by management and the
bargaining unit, and the inherent right of the employer to maintain discipline
and efficiency in the workplace. Their privacy expectation in a regulated
office environment is, in fine, reduced; and a degree of impingement upon
such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion

authorized by the challenged law. Reduced to a question form, is the scope
of the search or intrusion clearly set forth, or, as formulated in Ople v.
Torres, is the enabling law authorizing a search narrowly drawn or narrowly
focused?[32]

The poser should be answered in the affirmative. For one, Sec. 36 of RA

9165 and its implementing rules and regulations (IRR), as couched, contain
provisions specifically directed towards preventing a situation that would
unduly embarrass the employees or place them under a humiliating
experience. While every officer and employee in a private establishment is
under the law deemed forewarned that he or she may be a possible subject
of a drug test, nobody is really singled out in advance for drug testing. The
goal is to discourage drug use by not telling in advance anyone when and
who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself
prescribes what, in Ople, is a narrowing ingredient by providing that the
employees concerned shall be subjected to random drug test as contained
in the companys work rules and regulations x x x for purposes of reducing
the risk in the work place.

For another, the random drug testing shall be undertaken under conditions
calculated to protect as much as possible the employees privacy and
dignity. As to the mechanics of the test, the law specifies that the procedure
shall employ two testing methods, i.e., the screening test and the
confirmatory test, doubtless to ensure as much as possible the
trustworthiness of the results. But the more important consideration lies in
the fact that the test shall be conducted by trained professionals in access-
controlled laboratories monitored by the Department of Health (DOH) to
safeguard against results tampering and to ensure an accurate chain of
custody.[33] In addition, the IRR issued by the DOH provides that access to
the drug results shall be on the need to know basis;[34] that the drug test
result and the records shall be [kept] confidential subject to the usual
accepted practices to protect the confidentiality of the test results.[35]
Notably, RA 9165 does not oblige the employer concerned to report to the
prosecuting agencies any information or evidence relating to the violation of
the Comprehensive Dangerous Drugs Act received as a result of the
operation of the drug testing. All told, therefore, the intrusion into the
employees privacy, under RA 9165, is accompanied by proper safeguards,
particularly against embarrassing leakages of test results, and is relatively
minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug

in the country and thus protect the well-being of the citizens, especially the
youth, from the deleterious effects of dangerous drugs. The law intends to
achieve this through the medium, among others, of promoting and
resolutely pursuing a national drug abuse policy in the workplace via a
mandatory random drug test.[36] To the Court, the need for drug testing to
at least minimize illegal drug use is substantial enough to override the
individuals privacy interest under the premises. The Court can consider that
the illegal drug menace cuts across gender, age group, and social-
economic lines. And it may not be amiss to state that the sale,
manufacture, or trafficking of illegal drugs, with their ready market, would
be an investors dream were it not for the illegal and immoral components of
any of such activities. The drug problem has hardly abated since the
martial law public execution of a notorious drug trafficker. The state can no
longer assume a laid back stance with respect to this modern-day scourge.
Drug enforcement agencies perceive a mandatory random drug test to be
an effective way of preventing and deterring drug use among employees in
private offices, the threat of detection by random testing being higher than
other modes. The Court holds that the chosen method is a reasonable and
enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of
privacy on the part of the employees, the compelling state concern likely to
be met by the search, and the well-defined limits set forth in the law to
properly guide authorities in the conduct of the random testing, we hold that
the challenged drug test requirement is, under the limited context of the
case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials and
employees also labor under reasonable supervision and restrictions
imposed by the Civil Service law and other laws on public officers, all
enacted to promote a high standard of ethics in the public service.[37] And
if RA 9165 passes the norm of reasonableness for private employees, the
more reason that it should pass the test for civil servants, who, by
constitutional command, are required to be accountable at all times to the
people and to serve them with utmost responsibility and efficiency.[38]

Petitioner SJS next posture that Sec. 36 of RA 9165 is objectionable on the

ground of undue delegation of power hardly commends itself for
concurrence. Contrary to its position, the provision in question is not so
extensively drawn as to give unbridled options to schools and employers to
determine the manner of drug testing. Sec. 36 expressly provides how drug
testing for students of secondary and tertiary schools and
officers/employees of public/private offices should be conducted. It
enumerates the persons who shall undergo drug testing. In the case of
students, the testing shall be in accordance with the school rules as
contained in the student handbook and with notice to parents. On the part
of officers/employees, the testing shall take into account the companys
work rules. In either case, the random procedure shall be observed,
meaning that the persons to be subjected to drug test shall be picked by
chance or in an unplanned way. And in all cases, safeguards against
misusing and compromising the confidentiality of the test results are
established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in

consultation with the DOH, Department of the Interior and Local
Government, Department of Education, and Department of Labor and
Employment, among other agencies, the IRR necessary to enforce the law.
In net effect then, the participation of schools and offices in the drug testing
scheme shall always be subject to the IRR of RA 9165. It is, therefore,
incorrect to say that schools and employers have unchecked discretion to
determine how often, under what conditions, and where the drug tests shall
be conducted.

The validity of delegating legislative power is now a quiet area in the

constitutional landscape.[39] In the face of the increasing complexity of the
task of the government and the increasing inability of the legislature to cope
directly with the many problems demanding its attention, resort to
delegation of power, or entrusting to administrative agencies the power of
subordinate legislation, has become imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court
finds no valid justification for mandatory drug testing for persons accused of
crimes. In the case of students, the constitutional viability of the mandatory,
random, and suspicionless drug testing for students emanates primarily
from the waiver by the students of their right to privacy when they seek
entry to the school, and from their voluntarily submitting their persons to the
parental authority of school authorities. In the case of private and public
employees, the constitutional soundness of the mandatory, random, and
suspicionless drug testing proceeds from the reasonableness of the drug
test policy and requirement.

We find the situation entirely different in the case of persons charged

before the public prosecutors office with criminal offenses punishable with
six (6) years and one (1) day imprisonment. The operative concepts in the
mandatory drug testing are randomness and suspicionless. In the case of
persons charged with a crime before the prosecutors office, a mandatory
drug testing can never be random or suspicionless. The ideas of
randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither
are they beyond suspicion. When persons suspected of committing a crime
are charged, they are singled out and are impleaded against their will. The
persons thus charged, by the bare fact of being haled before the
prosecutors office and peaceably submitting themselves to drug testing, if
that be the case, do not necessarily consent to the procedure, let alone
waive their right to privacy.[40] To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 9165. Drug testing in
this case would violate a persons right to privacy guaranteed under Sec. 2,
Art. III of the Constitution. Worse still, the accused persons are veritably
forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No.

161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution
No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the
petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of
RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f)
UNCONSTITUTIONAL. All concerned agencies are, accordingly,
permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No
costs.

SO ORDERED.

This is consolidated with Laserna vs Dangerous Drugs Board (G.R. No.

158633) and Pimentel vs COMELEC (G.R. No. 161658)

In 2002, Republic Act No. 9165 or the Comprehensive Dangerous Drugs

Act of 2002 was implemented. Section 36 thereof requires mandatory drug
testing of candidates for public office, students of secondary and tertiary
schools, officers and employees of public and private offices, and persons
charged before the prosecutors office with certain offenses.

In December 2003, COMELEC issued Resolution No. 6486, prescribing the

rules and regulations on the mandatory drug testing of candidates for public
office in connection with the May 10, 2004 synchronized national and local
elections. Aquilino Pimentel, Jr., a senator and a candidate for re-election
in the May elections, filed a Petition for Certiorari and Prohibition under
Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 dated December 23, 2003 for being unconstitutional in
that they impose a qualification for candidates for senators in addition to
those already provided for in the 1987 Constitution; and (2) to enjoin the
COMELEC from implementing Resolution No. 6486.

According to Pimentel, the Constitution only prescribes a maximum of five

(5) qualifications for one to be a candidate for, elected to, and be a member
of the Senate. He says that both the Congress and COMELEC, by
requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant,
among other candidates, to undergo a mandatory drug test, create an
additional qualification that all candidates for senator must first be certified
as drug free. He adds that there is no provision in the Constitution
authorizing the Congress or COMELEC to expand the qualification
requirements of candidates for senator.

ISSUE: Whether or not Sec 36 of RA 9165 and Resolution 6486 are

constitutional.

HELD: No. Pimentels contention is valid. Accordingly, Sec. 36 of RA 9165

is unconstitutional. It is basic that if a law or an administrative rule violates
any norm of the Constitution, that issuance is null and void and has no
effect. The Constitution is the basic law to which all laws must conform; no
act shall be valid if it conflicts with the Constitution. In the discharge of their
defined functions, the three departments of government have no choice but
to yield obedience to the commands of the Constitution. Whatever limits it
imposes must be observed.

The provision [n]o person elected to any public office shall enter upon the
duties of his office until he has undergone mandatory drug test is not
tenable as it enlarges the qualifications. COMELEC cannot, in the guise of
enforcing and administering election laws or promulgating rules and
regulations to implement Sec. 36, validly impose qualifications on
candidates for senator in addition to what the Constitution prescribes. If
Congress cannot require a candidate for senator to meet such additional
qualification, the COMELEC, to be sure, is also without such power. The
right of a citizen in the democratic process of election should not be
defeated by unwarranted impositions of requirement not otherwise
specified in the Constitution.

Sabio v. Gordon, G.R. No. 174340, 504 SCRA 704, October 17, 2006

G.R. No. 174340 October 17, 2006

IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF

HABEAS CORPUS OF CAMILO L. SABIO, petitioner,
J. ERMIN ERNEST LOUIE R. MIGUEL, petitioner-relator,
vs.
HONORABLE SENATOR RICHARD GORDON, in his capacity as
Chairman, and the HONORABLE MEMBERS OF THE COMMITTEE ON
GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES and THE
COMMITTEE ON PUBLIC SERVICES of the Senate, HONORABLE
SENATOR JUAN PONCE-ENRILE, in his official capacity as Member,
HONORABLE MANUEL VILLAR, Senate President, SENATE SERGEANT-
AT-ARMS, and the SENATE OF THE PHILIPPINES, respondents.

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

G.R. No. 174318 October 17, 2006

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and
CAMILO L. SABIO, Chairman, NARCISO S. NARIO, RICARDO M.
ABCEDE, TERESO L. JAVIER and NICASIO A. CONTI, Commissioners,
MANUEL ANDAL and JULIO JALANDONI, PCGG nominees to Philcomsat
Holdings Corporation, petitioners,
vs.
RICHARD GORDON, in his capacity as Chairman, and MEMBERS OF
THE COMMITTEE ON GOVERNMENT CORPORATIONS AND PUBLIC
ENTERPRISES, MEMBERS OF THE COMMITTEE ON PUBLIC
SERVICES, SENATOR JUAN PONCE-ENRILE, in his capacity as member
of both said Committees, MANUEL VILLAR, Senate President, THE
SENATE SERGEANT-AT-ARMS, and SENATE OF THE PHILIPPINES,
respondents.

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

G.R. No. 174177 October 17, 2006

PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G. BRODETT, LUIS

K. LOKIN, JR., ROBERTO V. SAN JOSE, DELFIN P. ANGCAO,
ROBERTO L. ABAD, ALMA KRISTINA ALOBBA, and JOHNNY TAN,
petitioners,
vs.
SENATE COMMITTEE ON GOVERNMENT CORPORATIONS and
PUBLIC ENTERPRISES, its MEMBERS and CHAIRMAN, the
HONORABLE SENATOR RICHARD GORDON and SENATE
COMMITTEE ON PUBLIC SERVICES, its Members and Chairman, the
HONORABLE SENATOR JOKER P. ARROYO, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Two decades ago, on February 28, 1986, former President Corazon C.

Aquino installed her regime by issuing Executive Order (E.O.) No. 1,1
creating the Presidential Commission on Good Government (PCGG). She
entrusted upon this Commission the herculean task of recovering the ill-
gotten wealth accumulated by the deposed President Ferdinand E. Marcos,
his family, relatives, subordinates and close associates.2 Section 4 (b) of
E.O. No. 1 provides that: "No member or staff of the Commission shall be
required to testify or produce evidence in any judicial, legislative or
administrative proceeding concerning matters within its official cognizance."
Apparently, the purpose is to ensure PCGG's unhampered performance of
its task.3

Today, the constitutionality of Section 4(b) is being questioned on the

ground that it tramples upon the Senate's power to conduct legislative
inquiry under Article VI, Section 21 of the 1987 Constitution, which reads:

The Senate or the House of Representatives or any of its respective

committees may conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.

The facts are undisputed.

On February 20, 2006, Senator Miriam Defensor Santiago introduced

Philippine Senate Resolution No. 455 (Senate Res. No. 455),4 "directing
an inquiry in aid of legislation on the anomalous losses incurred by the
Philippines Overseas Telecommunications Corporation (POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT
Holdings Corporation (PHC) due to the alleged improprieties in their
operations by their respective Board of Directors."

The pertinent portions of the Resolution read:

WHEREAS, in the last quarter of 2005, the representation and

entertainment expense of the PHC skyrocketed to P4.3 million, as
compared to the previous year's mere P106 thousand;

WHEREAS, some board members established wholly owned PHC

subsidiary called Telecommunications Center, Inc. (TCI), where PHC funds
are allegedly siphoned; in 18 months, over P73 million had been allegedly
advanced to TCI without any accountability report given to PHC and
PHILCOMSAT;

WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that
the executive committee of Philcomsat has precipitately released P265
million and granted P125 million loan to a relative of an executive
committee member; to date there have been no payments given, subjecting
the company to an estimated interest income loss of P11.25 million in
2004;

WHEREAS, there is an urgent need to protect the interest of the Republic

of the Philippines in the PHC, PHILCOMSAT, and POTC from any
anomalous transaction, and to conserve or salvage any remaining value of
the government's equity position in these corporations from any abuses of
power done by their respective board of directors;

WHEREFORE, be it resolved that the proper Senate Committee shall

conduct an inquiry in aid of legislation, on the anomalous losses incurred
by the Philippine Overseas Telecommunications Corporation (POTC),
Philippine Communications Satellite Corporation (PHILCOMSAT), and
Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in
the operations by their respective board of directors.

Adopted.

(Sgd) MIRIAM DEFENSOR SANTIAGO

On the same date, February 20, 2006, Senate Res. No. 455 was submitted
to the Senate and referred to the Committee on Accountability of Public
Officers and Investigations and Committee on Public Services. However,
on March 28, 2006, upon motion of Senator Francis N. Pangilinan, it was
transferred to the Committee on Government Corporations and Public
Enterprises.5

On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of

Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG,
one of the herein petitioners, inviting him to be one of the resource persons
in the public meeting jointly conducted by the Committee on Government
Corporations and Public Enterprises and Committee on Public Services.
The purpose of the public meeting was to deliberate on Senate Res. No.
455.6

On May 9, 2006, Chairman Sabio declined the invitation because of prior

commitment.7 At the same time, he invoked Section 4(b) of E.O. No. 1
earlier quoted.
On August 10, 2006, Senator Gordon issued a Subpoena Ad
Testificandum,8 approved by Senate President Manuel Villar, requiring
Chairman Sabio and PCGG Commissioners Ricardo Abcede, Nicasio
Conti, Tereso Javier and Narciso Nario to appear in the public hearing
scheduled on August 23, 2006 and testify on what they know relative to the
matters specified in Senate Res. No. 455. Similar subpoenae were issued
against the directors and officers of Philcomsat Holdings Corporation,
namely: Benito V. Araneta, Philip J. Brodett, Enrique L. Locsin, Manuel D.
Andal, Roberto L. Abad, Luis K. Lokin, Jr., Julio J. Jalandoni, Roberto V.
San Jose, Delfin P. Angcao, Alma Kristina Alloba and Johnny Tan.9

Again, Chairman Sabio refused to appear. In his letter to Senator Gordon

dated August 18, 2006, he reiterated his earlier position, invoking Section
4(b) of E.O. No. 1. On the other hand, the directors and officers of
Philcomsat Holdings Corporation relied on the position paper they
previously filed, which raised issues on the propriety of legislative inquiry.

Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the authority of

Senator Gordon, sent another notice10 to Chairman Sabio requiring him to
appear and testify on the same subject matter set on September 6, 2006.
The notice was issued "under the same authority of the Subpoena Ad
Testificandum previously served upon (him) last 16 August 2006."

Once more, Chairman Sabio did not comply with the notice. He sent a
letter11 dated September 4, 2006 to Senator Gordon reiterating his reason
for declining to appear in the public hearing.

This prompted Senator Gordon to issue an Order dated September 7, 2006

requiring Chairman Sabio and Commissioners Abcede, Conti, Javier and
Nario to show cause why they should not be cited in contempt of the
Senate. On September 11, 2006, they submitted to the Senate their
Compliance and Explanation,12 which partly reads:

Doubtless, there are laudable intentions of the subject inquiry in aid of

legislation. But the rule of law requires that even the best intentions must
be carried out within the parameters of the Constitution and the law. Verily,
laudable purposes must be carried out by legal methods. (Brillantes, Jr., et
al. v. Commission on Elections, En Banc [G.R. No. 163193, June 15,
2004])
On this score, Section 4(b) of E.O. No. 1 should not be ignored as it
explicitly provides:

No member or staff of the Commission shall be required to testify or

produce evidence in any judicial legislative or administrative proceeding
concerning matters within its official cognizance.

With all due respect, Section 4(b) of E.O. No. 1 constitutes a limitation on
the power of legislative inquiry, and a recognition by the State of the need
to provide protection to the PCGG in order to ensure the unhampered
performance of its duties under its charter. E.O. No. 1 is a law, Section 4(b)
of which had not been amended, repealed or revised in any way.

To say the least, it would require both Houses of Congress and Presidential
fiat to amend or repeal the provision in controversy. Until then, it stands to
be respected as part of the legal system in this jurisdiction. (As held in
People v. Veneracion, G.R. Nos. 119987-88, October 12, 1995: Obedience
to the rule of law forms the bedrock of our system of justice. If judges,
under the guise of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to
exercise the duties of their office, then law becomes meaningless. A
government of laws, not of men excludes the exercise of broad
discretionary powers by those acting under its authority. Under this system,
judges are guided by the Rule of Law, and ought to 'protect and enforce it
without fear or favor,' 4 [Act of Athens (1955)] resist encroachments by
governments, political parties, or even the interference of their own
personal beliefs.)

xxxxxx

Relevantly, Chairman Sabio's letter to Sen. Gordon dated August 19, 2006
pointed out that the anomalous transactions referred to in the P.S.
Resolution No. 455 are subject of pending cases before the regular courts,
the Sandiganbayan and the Supreme Court (Pending cases include: a.
Samuel Divina v. Manuel Nieto, Jr., et al., CA-G.R. No. 89102; b. Philippine
Communications Satellite Corporation v. Manuel Nieto, et al.; c. Philippine
Communications Satellite Corporation v. Manuel D. Andal, Civil Case No.
06-095, RTC, Branch 61, Makati City; d. Philippine Communications
Satellite Corporation v. PHILCOMSAT Holdings Corporation, et al., Civil
Case No. 04-1049) for which reason they may not be able to testify thereon
under the principle of sub judice. The laudable objectives of the PCGG's
functions, recognized in several cases decided by the Supreme Court, of
the PCGG will be put to naught if its recovery efforts will be unduly impeded
by a legislative investigation of cases that are already pending before the
Sandiganbayan and trial courts.

In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784

[1991]) the Honorable Supreme Court held:

"[T]he issues sought to be investigated by the respondent Committee is

one over which jurisdiction had been acquired by the Sandiganbayan. In
short, the issue has been pre-empted by that court. To allow the
respondent Committee to conduct its own investigation of an issue already
before the Sandigabayan would not only pose the possibility of conflicting
judgments between a legislative committee and a judicial tribunal, but if the
Committee's judgment were to be reached before that of the
Sandiganbayan, the possibility of its influence being made to bear on the
ultimate judgment of the Sandiganbayan can not be discounted.

xxxxxx

IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that the

Commission decided not to attend the Senate inquiry to testify and produce
evidence thereat.

Unconvinced with the above Compliance and Explanation, the Committee

on Government Corporations and Public Enterprises and the Committee on
Public Services issued an Order13 directing Major General Jose Balajadia
(Ret.), Senate Sergeant-At-Arms, to place Chairman Sabio and his
Commissioners under arrest for contempt of the Senate. The Order bears
the approval of Senate President Villar and the majority of the Committees'
members.

On September 12, 2006, at around 10:45 a.m., Major General Balajadia

arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA,
Mandaluyong City and brought him to the Senate premises where he was
detained.

Hence, Chairman Sabio filed with this Court a petition for habeas corpus
against the Senate Committee on Government Corporations and Public
Enterprises and Committee on Public Services, their Chairmen, Senators
Richard Gordon and Joker P. Arroyo and Members. The case was
docketed as G.R. No. 174340.

Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier, and the
PCGG's nominees to Philcomsat Holdings Corporation, Manuel Andal and
Julio Jalandoni, likewise filed a petition for certiorari and prohibition against
the same respondents, and also against Senate President Manuel Villar,
Senator Juan Ponce Enrile, the Sergeant-at-Arms, and the entire Senate.
The case was docketed as G.R. No. 174318.

Meanwhile, Philcomsat Holdings Corporation and its officers and directors,

namely: Philip G. Brodett, Luis K. Lokin, Jr., Roberto V. San Jose, Delfin P.
Angcao, Roberto L. Abad, Alma Kristina Alobba and Johnny Tan filed a
petition for certiorari and prohibition against the Senate Committees on
Government Corporations and Public Enterprises and Public Services, their
Chairmen, Senators Gordon and Arroyo, and Members. The case was
docketed as G.R. No. 174177.

In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for certiorari
and prohibition) Chairman Sabio, Commissioners Abcede, Conti, Nario,
and Javier; and the PCGG's nominees Andal and Jalandoni alleged: first,
respondent Senate Committees disregarded Section 4(b) of E.O. No. 1
without any justifiable reason; second, the inquiries conducted by
respondent Senate Committees are not in aid of legislation; third, the
inquiries were conducted in the absence of duly published Senate Rules of
Procedure Governing Inquiries in Aid of Legislation; and fourth, respondent
Senate Committees are not vested with the power of contempt.

In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and its

directors and officers alleged: first, respondent Senate Committees have no
jurisdiction over the subject matter stated in Senate Res. No. 455; second,
the same inquiry is not in accordance with the Senate's Rules of Procedure
Governing Inquiries in Aid of Legislation; third, the subpoenae against the
individual petitioners are void for having been issued without authority;
fourth, the conduct of legislative inquiry pursuant to Senate Res. No. 455
constitutes undue encroachment by respondents into justiciable
controversies over which several courts and tribunals have already
acquired jurisdiction; and fifth, the subpoenae violated petitioners' rights to
privacy and against self-incrimination.

In their Consolidated Comment, the above-named respondents countered:

first, the issues raised in the petitions involve political questions over which
this Court has no jurisdiction; second, Section 4(b) has been repealed by
the Constitution; third, respondent Senate Committees are vested with
contempt power; fourth, Senate's Rules of Procedure Governing Inquiries
in Aid of Legislation have been duly published; fifth, respondents have not
violated any civil right of the individual petitioners, such as their (a) right to
privacy; and (b) right against self-incrimination; and sixth, the inquiry does
not constitute undue encroachment into justiciable controversies.

During the oral arguments held on September 21, 2006, the parties were
directed to submit simultaneously their respective memoranda within a non-
extendible period of fifteen (15) days from date. In the meantime, per
agreement of the parties, petitioner Chairman Sabio was allowed to go
home. Thus, his petition for habeas corpus has become moot. The parties
also agreed that the service of the arrest warrants issued against all
petitioners and the proceedings before the respondent Senate Committees
are suspended during the pendency of the instant cases.14

Crucial to the resolution of the present petitions is the fundamental issue of

whether Section 4(b) of E.O. No. 1 is repealed by the 1987 Constitution. On
this lone issue hinges the merit of the contention of Chairman Sabio and
his Commissioners that their refusal to appear before respondent Senate
Committees is justified. With the resolution of this issue, all the other issues
raised by the parties have become inconsequential.

Perched on one arm of the scale of justice is Article VI, Section 21 of the
1987 Constitution granting respondent Senate Committees the power of
legislative inquiry. It reads:

The Senate or the House of Representatives or any of its respective

committees may conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.

On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such
power of legislative inquiry by exempting all PCGG members or staff from
testifying in any judicial, legislative or administrative proceeding, thus:
No member or staff of the Commission shall be required to testify or
produce evidence in any judicial, legislative or administrative proceeding
concerning matters within its official cognizance.

To determine whether there exists a clear and unequivocal repugnancy

between the two quoted provisions that warrants a declaration that Section
4(b) has been repealed by the 1987 Constitution, a brief consideration of
the Congress' power of inquiry is imperative.

The Congress' power of inquiry has been recognized in foreign jurisdictions

long before it reached our shores through McGrain v. Daugherty,15 cited in
Arnault v. Nazareno.16 In those earlier days, American courts considered
the power of inquiry as inherent in the power to legislate. The 1864 case of
Briggs v. MacKellar17 explains the breath and basis of the power, thus:

Where no constitutional limitation or restriction exists, it is competent for

either of the two bodies composing the legislature to do, in their separate
capacity, whatever may be essential to enable them to legislate.It is well-
established principle of this parliamentary law, that either house may
institute any investigation having reference to its own organization, the
conduct or qualification of its members, its proceedings, rights, or privileges
or any matter affecting the public interest upon which it may be important
that it should have exact information, and in respect to which it would be
competent for it to legislate. The right to pass laws, necessarily implies the
right to obtain information upon any matter which may become the subject
of a law. It is essential to the full and intelligent exercise of the legislative
function.In American legislatures the investigation of public matters
before committees, preliminary to legislation, or with the view of advising
the house appointing the committee is, as a parliamentary usage, well
established as it is in England, and the right of either house to compel
witnesses to appear and testify before its committee, and to punish for
disobedience has been frequently enforced.The right of inquiry, I think,
extends to other matters, in respect to which it may be necessary, or may
be deemed advisable to apply for legislative aid.

Remarkably, in Arnault, this Court adhered to a similar theory. Citing

McGrain, it recognized that the power of inquiry is "an essential and
appropriate auxiliary to the legislative function," thus:
Although there is no provision in the "Constitution expressly investing either
House of Congress with power to make investigations and exact testimony
to the end that it may exercise its legislative functions advisedly and
effectively, such power is so far incidental to the legislative function as to
be implied. In other words, the power of inquiry with process to enforce it
is an essential and appropriate auxiliary to the legislative function. A
legislative body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to
affect or change; and where the legislation body does not itself possess the
requisite information which is not infrequently true recourse must be
had to others who possess it."

Dispelling any doubt as to the Philippine Congress' power of inquiry,

provisions on such power made their maiden appearance in Article VIII,
Section 12 of the 1973 Constitution.18 Then came the 1987 Constitution
incorporating the present Article VI, Section 12. What was therefore implicit
under the 1935 Constitution, as influenced by American jurisprudence,
became explicit under the 1973 and 1987 Constitutions.19

Notably, the 1987 Constitution recognizes the power of investigation, not

just of Congress, but also of "any of its committee." This is significant
because it constitutes a direct conferral of investigatory power upon the
committees and it means that the mechanisms which the Houses can take
in order to effectively perform its investigative function are also available to
the committees.20

It can be said that the Congress' power of inquiry has gained more solid
existence and expansive construal. The Court's high regard to such power
is rendered more evident in Senate v. Ermita,21 where it categorically ruled
that "the power of inquiry is broad enough to cover officials of the executive
branch." Verily, the Court reinforced the doctrine in Arnault that "the
operation of government, being a legitimate subject for legislation, is a
proper subject for investigation" and that "the power of inquiry is co-
extensive with the power to legislate."

Considering these jurisprudential instructions, we find Section 4(b) directly

repugnant with Article VI, Section 21. Section 4(b) exempts the PCGG
members and staff from the Congress' power of inquiry. This cannot be
countenanced. Nowhere in the Constitution is any provision granting such
exemption. The Congress' power of inquiry, being broad, encompasses
everything that concerns the administration of existing laws as well as
proposed or possibly needed statutes.22 It even extends "to government
agencies created by Congress and officers whose positions are within the
power of Congress to regulate or even abolish."23 PCGG belongs to this
class.

Certainly, a mere provision of law cannot pose a limitation to the broad

power of Congress, in the absence of any constitutional basis.

Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of

the Constitution stating that: "Public office is a public trust. Public officers
and employees must at all times be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives."

The provision presupposes that since an incumbent of a public office is

invested with certain powers and charged with certain duties pertinent to
sovereignty, the powers so delegated to the officer are held in trust for the
people and are to be exercised in behalf of the government or of all citizens
who may need the intervention of the officers. Such trust extends to all
matters within the range of duties pertaining to the office. In other words,
public officers are but the servants of the people, and not their rulers.24

Section 4(b), being in the nature of an immunity, is inconsistent with the

principle of public accountability. It places the PCGG members and staff
beyond the reach of courts, Congress and other administrative bodies.
Instead of encouraging public accountability, the same provision only
institutionalizes irresponsibility and non-accountability. In Presidential
Commission on Good Government v. Pea,25 Justice Florentino P.
Feliciano characterized as "obiter" the portion of the majority opinion
barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for
damages filed against the PCGG and its Commissioners. He eloquently
opined:

The above underscored portions are, it is respectfully submitted, clearly

obiter. It is important to make clear that the Court is not here interpreting,
much less upholding as valid and constitutional, the literal terms of Section
4 (a), (b) of Executive Order No.1. If Section 4 (a) were given its literal
import as immunizing the PCGG or any member thereof from civil liability
"for anything done or omitted in the discharge of the task contemplated by
this Order," the constitutionality of Section 4 (a) would, in my submission,
be open to most serious doubt. For so viewed, Section 4 (a) would
institutionalize the irresponsibility and non-accountability of members and
staff of the PCGG, a notion that is clearly repugnant to both the 1973 and
1987 Constitution and a privileged status not claimed by any other official
of the Republic under the 1987 Constitution. x x x.

xxxxxx

It would seem constitutionally offensive to suppose that a member or staff

member of the PCGG could not be required to testify before the
Sandiganbayan or that such members were exempted from complying with
orders of this Court.

Chavez v. Sandiganbayan26 reiterates the same view. Indeed, Section

4(b) has been frowned upon by this Court even before the filing of the
present petitions.

Corollarily, Section 4(b) also runs counter to the following constitutional

provisions ensuring the people's access to information:

Article II, Section 28

Subject to reasonable conditions prescribed by law, the State adopts and

implements a policy of full public disclosure of all its transactions involving
public interest.

Article III, Section 7

The right of the people to information on matters of public concern shall be

recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.

These twin provisions of the Constitution seek to promote transparency in

policy-making and in the operations of the government, as well as provide
the people sufficient information to enable them to exercise effectively their
constitutional rights. Armed with the right information, citizens can
participate in public discussions leading to the formulation of government
policies and their effective implementation. In Valmonte v. Belmonte, Jr.27
the Court explained that an informed citizenry is essential to the existence
and proper functioning of any democracy, thus:

An essential element of these freedoms is to keep open a continuing

dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and
be responsive to the people's will. Yet, this open dialogue can be effective
only to the extent that the citizenry is informed and thus able to formulate
its will intelligently. Only when the participants in the discussion are aware
of the issues and have access to information relating thereto can such bear
fruit.

Consequently, the conduct of inquiries in aid of legislation is not only

intended to benefit Congress but also the citizenry. The people are equally
concerned with this proceeding and have the right to participate therein in
order to protect their interests. The extent of their participation will largely
depend on the information gathered and made known to them. In other
words, the right to information really goes hand-in-hand with the
constitutional policies of full public disclosure and honesty in the public
service. It is meant to enhance the widening role of the citizenry in
governmental decision-making as well as in checking abuse in the
government.28 The cases of Taada v. Tuvera29 and Legaspi v. Civil
Service Commission30 have recognized a citizen's interest and personality
to enforce a public duty and to bring an action to compel public officials and
employees to perform that duty.

Section 4(b) limits or obstructs the power of Congress to secure from

PCGG members and staff information and other data in aid of its power to
legislate. Again, this must not be countenanced. In Senate v. Ermita,31 this
Court stressed:

To the extent that investigations in aid of legislation are generally

conducted in public, however, any executive issuance tending to unduly
limit disclosures of information in such investigations necessarily deprives
the people of information which, being presumed to be in aid of legislation,
is presumed to be a matter of public concern. The citizens are thereby
denied access to information which they can use in formulating their own
opinions on the matter before Congress opinions which they can then
communicate to their representatives and other government officials
through the various legal means allowed by their freedom of expression.

A statute may be declared unconstitutional because it is not within the

legislative power to enact; or it creates or establishes methods or forms
that infringe constitutional principles; or its purpose or effect violates the
Constitution or its basic principles.32 As shown in the above discussion,
Section 4(b) is inconsistent with Article VI, Section 21 (Congress' power of
inquiry), Article XI, Section 1 (principle of public accountability), Article II,
Section 28 (policy of full disclosure) and Article III, Section 7 (right to public
information).

Significantly, Article XVIII, Section 3 of the Constitution provides:

All existing laws, decrees, executive orders, proclamations, letters of

instructions, and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed, or revoked.

The clear import of this provision is that all existing laws, executive orders,
proclamations, letters of instructions and other executive issuances
inconsistent or repugnant to the Constitution are repealed.

Jurisprudence is replete with decisions invalidating laws, decrees,

executive orders, proclamations, letters of instructions and other executive
issuances inconsistent with the Constitution. In Pelaez v. Auditor
General,33 the Court considered repealed Section 68 of the Revised
Administrative Code of 1917 authorizing the Executive to change the seat
of the government of any subdivision of local governments, upon the
approval of the 1935 Constitution. Section 68 was adjudged incompatible
and inconsistent with the Constitutional grant of limited executive
supervision over local governments. In Islamic Da'wah Council of the
Philippines, Inc., v. Office of the Executive Secretary,34 the Court declared
Executive Order No. 46, entitled "Authorizing the Office on Muslim Affairs to
Undertake Philippine Halal Certification," void for encroaching on the
religious freedom of Muslims. In The Province of Batangas v. Romulo,35
the Court declared some provisions of the General Appropriations Acts of
1999, 2000 and 2001 unconstitutional for violating the Constitutional
precept on local autonomy. And in Ople v. Torres,36 the Court likewise
declared unconstitutional Administrative Order No. 308, entitled "Adoption
of a National Computerized Identification Reference System," for being
violative of the right to privacy protected by the Constitution.

These Decisions, and many others, highlight that the Constitution is the
highest law of the land. It 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. No act shall be valid, however noble its intentions, if
it conflicts with the Constitution."37 Consequently, this Court has no
recourse but to declare Section 4(b) of E.O. No. 1 repealed by the 1987
Constitution.

Significantly, during the oral arguments on September 21, 2006, Chairman

Sabio admitted that should this Court rule that Section 4(b) is
unconstitutional or that it does not apply to the Senate, he will answer the
questions of the Senators, thus:

CHIEF JUSTICE PANGANIBAN:

Okay. Now, if the Supreme Court rules that Sec. 4(b) is unconstitutional or
that it does not apply to the Senate, will you answer the questions of the
Senators?

CHAIRMAN SABIO:

Your Honor, my father was a judge, died being a judge. I was here in the
Supreme Court as Chief of Staff of Justice Feria. I would definitely honor
the Supreme Court and the rule of law.

CHIEF JUSTICE PANGANIBAN:

You will answer the questions of the Senators if we say that?

CHAIRMAN SABIO:

Yes, Your Honor. That is the law already as far as I am concerned.

With his admission, Chairman Sabio is not fully convinced that he and his
Commissioners are shielded from testifying before respondent Senate
Committees by Section 4(b) of E.O. No. 1. In effect, his argument that the
said provision exempts him and his co-respondent Commissioners from
testifying before respondent Senate Committees concerning Senate Res.
No. 455 utterly lacks merit.

Incidentally, an argument repeated by Chairman Sabio is that respondent

Senate Committees have no power to punish him and his Commissioners
for contempt of the Senate.

The argument is misleading.

Article VI, Section 21 provides:

The Senate or the House of Representatives or any of its respective

committees may conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.

It must be stressed that the Order of Arrest for "contempt of Senate

Committees and the Philippine Senate" was approved by Senate President
Villar and signed by fifteen (15) Senators. From this, it can be concluded
that the Order is under the authority, not only of the respondent Senate
Committees, but of the entire Senate.

At any rate, Article VI, Section 21 grants the power of inquiry not only to the
Senate and the House of Representatives, but also to any of their
respective committees. Clearly, there is a direct conferral of power to the
committees. Father Bernas, in his Commentary on the 1987 Constitution,
correctly pointed out its significance:

It should also be noted that the Constitution explicitly recognizes the power
of investigation not just of Congress but also of "any of its committees."
This is significant because it constitutes a direct conferral of investigatory
power upon the committees and it means that the means which the Houses
can take in order to effectively perform its investigative function are also
available to the Committees.38

This is a reasonable conclusion. The conferral of the legislative power of

inquiry upon any committee of Congress must carry with it all powers
necessary and proper for its effective discharge. Otherwise, Article VI,
Section 21 will be meaningless. The indispensability and usefulness of the
power of contempt in a legislative inquiry is underscored in a catena of
cases, foreign and local.
In the 1821 case of Anderson v. Dunn,39 the function of the Houses of
Congress with respect to the contempt power was likened to that of a court,
thus:

But the court in its reasoning goes beyond this, and though the grounds
of the decision are not very clearly stated, we take them to be: that there is
in some cases a power in each House of Congress to punish for contempt;
that this power is analogous to that exercised by courts of justice, and that
it being the well established doctrine that when it appears that a prisoner is
held under the order of a court of general jurisdiction for a contempt of its
authority, no other court will discharge the prisoner or make further inquiry
into the cause of his commitment. That this is the general ruleas regards
the relation of one court to another must be conceded.

In McGrain,40 the U.S. Supreme Court held: "Experience has shown that
mere requests for such information are often unavailing, and also that
information which is volunteered is not always accurate or complete; so
some means of compulsion is essential to obtain what is needed." The
Court, in Arnault v. Nazareno,41 sustained the Congress' power of
contempt on the basis of this observation.

In Arnault v. Balagtas,42 the Court further explained that the contempt

power of Congress is founded upon reason and policy and that the power
of inquiry will not be complete if for every contumacious act, Congress has
to resort to judicial interference, thus:

The principle that Congress or any of its bodies has the power to punish
recalcitrant witnesses is founded upon reason and policy. Said power must
be considered implied or incidental to the exercise of legislative power.
How could a legislative body obtain the knowledge and information on
which to base intended legislation if it cannot require and compel the
disclosure of such knowledge and information if it is impotent to punish a
defiance of its power and authority? When the framers of the Constitution
adopted the principle of separation of powers, making each branch
supreme within the realm of its respective authority, it must have intended
each department's authority to be full and complete, independently of the
other's authority or power. And how could the authority and power become
complete if for every act of refusal, every act of defiance, every act of
contumacy against it, the legislative body must resort to the judicial
department for the appropriate remedy, because it is impotent by itself to
punish or deal therewith, with the affronts committed against its authority or
dignity.43

In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod

of Dumaguete,44 the Court characterized contempt power as a matter of
self-preservation, thus:

The exercise by the legislature of the contempt power is a matter of self-

preservation as that branch of the government vested with the legislative
power, independently of the judicial branch, asserts its authority and
punishes contempts thereof. The contempt power of the legislature is,
therefore, sui generis x x x.

Meanwhile, with respect to G.R. No. 174177, the petition of Philcomsat

Holdings Corporation and its directors and officers, this Court holds that the
respondent Senate Committees' inquiry does not violate their right to
privacy and right against self-incrimination.

One important limitation on the Congress' power of inquiry is that "the rights
of persons appearing in or affected by such inquiries shall be respected."
This is just another way of saying that the power of inquiry must be "subject
to the limitations placed by the Constitution on government action." As held
in Barenblatt v. United States,45 "the Congress, in common with all the
other branches of the Government, must exercise its powers subject to the
limitations placed by the Constitution on governmental action, more
particularly in the context of this case, the relevant limitations of the Bill of
Rights."

First is the right to privacy.

Zones of privacy are recognized and protected in our laws.46 Within these
zones, any form of intrusion is impermissible unless excused by law and in
accordance with customary legal process. The meticulous regard we
accord to these zones arises not only from our conviction that the right to
privacy is a "constitutional right" and "the right most valued by civilized
men,"47 but also from our adherence to the Universal Declaration of
Human Rights which mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the right to the protection
of the law against such interference or attacks."48
Our Bill of Rights, enshrined in Article III of the Constitution, provides at
least two guarantees that explicitly create zones of privacy. It highlights a
person's "right to be let alone" or the "right to determine what, how much, to
whom and when information about himself shall be disclosed."49 Section 2
guarantees "the right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose." Section 3 renders inviolable the
"privacy of communication and correspondence" and further cautions that
"any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding."

In evaluating a claim for violation of the right to privacy, a court must

determine whether a person has exhibited a reasonable expectation of
privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.50 Applying this determination to these
cases, the important inquiries are: first, did the directors and officers of
Philcomsat Holdings Corporation exhibit a reasonable expectation of
privacy?; and second, did the government violate such expectation?

The answers are in the negative. Petitioners were invited in the Senate's
public hearing to deliberate on Senate Res. No. 455, particularly "on the
anomalous losses incurred by the Philippine Overseas
Telecommunications Corporation (POTC), Philippine Communications
Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings
Corporations (PHC) due to the alleged improprieties in the operations by
their respective board of directors." Obviously, the inquiry focus on
petitioners' acts committed in the discharge of their duties as officers and
directors of the said corporations, particularly Philcomsat Holdings
Corporation. Consequently, they have no reasonable expectation of privacy
over matters involving their offices in a corporation where the government
has interest. Certainly, such matters are of public concern and over which
the people have the right to information.

This goes to show that the right to privacy is not absolute where there is an
overriding compelling state interest. In Morfe v. Mutuc,51 the Court, in line
with Whalen v. Roe,52 employed the rational basis relationship test when it
held that there was no infringement of the individual's right to privacy as the
requirement to disclosure information is for a valid purpose, i.e., to curtail
and minimize the opportunities for official corruption, maintain a standard of
honesty in public service, and promote morality in public administration.53
In Valmonte v. Belmonte,54 the Court remarked that as public figures, the
Members of the former Batasang Pambansa enjoy a more limited right to
privacy as compared to ordinary individuals, and their actions are subject to
closer scrutiny. Taking this into consideration, the Court ruled that the right
of the people to access information on matters of public concern prevails
over the right to privacy of financial transactions.

Under the present circumstances, the alleged anomalies in the

PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the
conspiratorial participation of the PCGG and its officials are compelling
reasons for the Senate to exact vital information from the directors and
officers of Philcomsat Holdings Corporations, as well as from Chairman
Sabio and his Commissioners to aid it in crafting the necessary legislation
to prevent corruption and formulate remedial measures and policy
determination regarding PCGG's efficacy. There being no reasonable
expectation of privacy on the part of those directors and officers over the
subject covered by Senate Res. No. 455, it follows that their right to privacy
has not been violated by respondent Senate Committees.

Anent the right against self-incrimination, it must be emphasized that this

right maybe invoked by the said directors and officers of Philcomsat
Holdings Corporation only when the incriminating question is being asked,
since they have no way of knowing in advance the nature or effect of the
questions to be asked of them."55 That this right may possibly be violated
or abused is no ground for denying respondent Senate Committees their
power of inquiry. The consolation is that when this power is abused, such
issue may be presented before the courts. At this juncture, what is
important is that respondent Senate Committees have sufficient Rules to
guide them when the right against self-incrimination is invoked. Sec. 19
reads:

Sec. 19. Privilege Against Self-Incrimination

A witness can invoke his right against self-incrimination only when a

question tends to elicit an answer that will incriminate him is propounded to
him. However, he may offer to answer any question in an executive
session.

No person can refuse to testify or be placed under oath or affirmation or

answer questions before an incriminatory question is asked. His invocation
of such right does not by itself excuse him from his duty to give testimony.

In such a case, the Committee, by a majority vote of the members present

there being a quorum, shall determine whether the right has been properly
invoked. If the Committee decides otherwise, it shall resume its
investigation and the question or questions previously refused to be
answered shall be repeated to the witness. If the latter continues to refuse
to answer the question, the Committee may punish him for contempt for
contumacious conduct.

The same directors and officers contend that the Senate is barred from
inquiring into the same issues being litigated before the Court of Appeals
and the Sandiganbayan. Suffice it to state that the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation provide that the filing or
pendency of any prosecution of criminal or administrative action should not
stop or abate any inquiry to carry out a legislative purpose.

Let it be stressed at this point that so long as the constitutional rights of

witnesses, like Chairman Sabio and his Commissioners, will be respected
by respondent Senate Committees, it their duty to cooperate with them in
their efforts to obtain the facts needed for intelligent legislative action. The
unremitting obligation of every citizen is to respond to subpoenae, to
respect the dignity of the Congress and its Committees, and to testify fully
with respect to matters within the realm of proper investigation.

In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo

Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel
Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings
Corporation, as well as its directors and officers, must comply with the
Subpoenae Ad Testificandum issued by respondent Senate Committees
directing them to appear and testify in public hearings relative to Senate
Resolution No. 455.

WHEREFORE, the petition in G.R. No. 174340 for habeas corpus is

DISMISSED, for being moot. The petitions in G.R Nos. 174318 and 174177
are likewise DISMISSED.

Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987

Constitution. Respondent Senate Committees' power of inquiry relative to
Senate Resolution 455 is upheld. PCGG Chairman Camilo L. Sabio and
Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti and Tereso
Javier; and Manuel Andal and Julio Jalandoni, PCGG's nominees to
Philcomsat Holdings Corporation, as well as its directors and officers,
petitioners in G.R. No. 174177, are ordered to comply with the Subpoenae
Ad Testificandum issued by respondent Senate Committees directing them
to appear and testify in public hearings relative to Senate Resolution No.
455.

SO ORDERED.

On February 20, 2006, Senator Miriam Defensor-Santiago introduced

Senate Res. No. 455 directing an inquiry in aid of legislation on the
anomalous losses incurred by the Philippines Overseas
Telecommunications Corporation (POTC), Philippine Communications
Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings
Corporation (PHC) due to the alleged improprieties in their operations by
their respective Board of Directors. Pursuant to this, on May 8, 2006,
Senator Richard Gordon, wrote Chairman Camilo Sabio of the PCGG
inviting him to be one of the resource persons in the public meeting jointly
conducted by the Committee on Government Corporations and Public
Enterprises and Committee on Public Services. Chairman Sabio declined
the invitation because of prior commitment. At the same time, he invoked
Section 4(b) of E.O. No. 1 No member or staff of the Commission shall be
required to testify or produce evidence in any judicial, legislative or
administrative proceeding concerning matters within its official cognizance.
Apparently, the purpose is to ensure PCGGs unhampered performance of
its task. Gordons Subpoenae Ad Testificandum was repeatedly ignored by
Sabio hence he threatened Sabio to be cited with contempt.

ISSUE: Whether or not Section 4 of EO No. 1 is constitutional.

HELD: No. It can be said that the Congress power of inquiry has gained
more solid existence and expansive construal. The Courts high regard to
such power is rendered more evident in Senate v. Ermita, where it
categorically ruled that the power of inquiry is broad enough to cover
officials of the executive branch. Verily, the Court reinforced the doctrine
in Arnault that the operation of government, being a legitimate subject for
legislation, is a proper subject for investigation and that the power of
inquiry is co-extensive with the power to legislate. Subject to reasonable
conditions prescribed by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving public interest.

Article III, Section 7

The right of the people to information on matters of public concern shall be

recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.

These twin provisions of the Constitution seek to promote transparency in

policy-making and in the operations of the government, as well as provide
the people sufficient information to enable them to exercise effectively their
constitutional rights. Armed with the right information, citizens can
participate in public discussions leading to the formulation of government
policies and their effective implementation.

Atty. Macalintal v. Commission on Elections, 453 Phil 586 (2003)

ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON

ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as
Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary of the
Department of Budget and Management, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for certiorari and prohibition filed by Romulo
B. Macalintal, a member of the Philippine Bar, seeking a declaration that
certain provisions of Republic Act No. 9189 (The Overseas Absentee
Voting Act of 2003)[1] suffer from constitutional infirmity. Claiming that he
has actual and material legal interest in the subject matter of this case in
seeing to it that public funds are properly and lawfully used and
appropriated, petitioner filed the instant petition as a taxpayer and as a
lawyer.

The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, An Act Providing for A System of Overseas
Absentee Voting by Qualified Citizens of the Philippines Abroad,
Appropriating Funds Therefor, and for Other Purposes, appropriates funds
under Section 29 thereof which provides that a supplemental budget on the
General Appropriations Act of the year of its enactment into law shall
provide for the necessary amount to carry out its provisions. Taxpayers,
such as herein petitioner, have the right to restrain officials from wasting
public funds through the enforcement of an unconstitutional statute.[2] The
Court has held that they may assail the validity of a law appropriating public
funds[3] because expenditure of public funds by an officer of the State for
the purpose of executing an unconstitutional act constitutes a
misapplication of such funds.[4]

The challenged provision of law involves a public right that affects a great
number of citizens. The Court has adopted the policy of taking jurisdiction
over cases whenever the petitioner has seriously and convincingly
presented an issue of transcendental significance to the Filipino people.
This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. vs. Tan,[5] where the Court held:

Objections to taxpayers suit for lack of sufficient personality standing, or

interest are, however, in the main procedural matters. Considering the
importance to the public of the cases at bar, and in keeping with the Courts
duty, under the 1987 Constitution, to determine whether or not the 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, the Court has brushed aside technicalities of procedure and
has taken cognizance of these petitions.[6]

Indeed, in this case, the Court may set aside procedural rules as the
constitutional right of suffrage of a considerable number of Filipinos is
involved.

The question of propriety of the instant petition which may appear to be

visited by the vice of prematurity as there are no ongoing proceedings in
any tribunal, board or before a government official exercising judicial,
quasi-judicial or ministerial functions as required by Rule 65 of the Rules of
Court, dims in light of the importance of the constitutional issues raised by
the petitioner. In Taada vs. Angara,[7] the Court held:
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 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.

In another case of paramount impact to the Filipino people, it has been

expressed that it is illogical to await the adverse consequences of the law
in order to consider the controversy actual and ripe for judicial resolution.[8]
In yet another case, the Court said that:

. . . despite the inhibitions pressing upon the Court when confronted with
constitutional issues, it will not hesitate to declare a law or act invalid when
it is convinced that this must be done. In arriving at this conclusion, its only
criterion will be the Constitution and God as its conscience gives it in the
light to probe its meaning and discover its purpose. Personal motives and
political considerations are irrelevancies that cannot influence its decisions.
Blandishment is as ineffectual as intimidation, for all the awesome power of
the Congress and Executive, the Court will not hesitate to make the
hammer fall heavily, where the acts of these departments, or of any official,
betray the peoples will as expressed in the Constitution . . .[9]

The need to consider the constitutional issues raised before the Court is
further buttressed by the fact that it is now more than fifteen years since the
ratification of the 1987 Constitution requiring Congress to provide a system
for absentee voting by qualified Filipinos abroad. Thus, strong reasons of
public policy demand that the Court resolves the instant petition[10] and
determine whether Congress has acted within the limits of the Constitution
or if it had gravely abused the discretion entrusted to it.[11]

The petitioner raises three principal questions:

A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of
voters who are immigrants or permanent residents in other countries by
their mere act of executing an affidavit expressing their intention to return to
the Philippines, violate the residency requirement in Section 1 of Article V
of the Constitution?

B. Does Section 18.5 of the same law empowering the COMELEC to

proclaim the winning candidates for national offices and party list
representatives including the President and the Vice-President violate the
constitutional mandate under Section 4, Article VII of the Constitution that
the winning candidates for President and the Vice-President shall be
proclaimed as winners by Congress?

C. May Congress, through the Joint Congressional Oversight Committee

created in Section 25 of Rep. Act No. 9189, exercise the power to review,
revise, amend, and approve the Implementing Rules and Regulations that
the Commission on Elections shall promulgate without violating the
independence of the COMELEC under Section 1, Article IX-A of the
Constitution?

The Court will resolve the questions in seriatim.

A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of
the 1987 Constitution of the Republic of the Philippines?

Section 5(d) provides:

Sec. 5. Disqualifications. The following shall be disqualified from voting

under this Act:

.........

d) An immigrant or a permanent resident who is recognized as such in the

host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship in
another country. Failure to return shall be cause for the removal of the
name of the immigrant or permanent resident from the National Registry of
Absentee Voters and his/her permanent disqualification to vote in absentia.

Petitioner posits that Section 5(d) is unconstitutional because it violates

Section 1, Article V of the 1987 Constitution which requires that the voter
must be a resident in the Philippines for at least one year and in the place
where he proposes to vote for at least six months immediately preceding
an election. Petitioner cites the ruling of the Court in Caasi vs. Court of
Appeals[12] to support his claim. In that case, the Court held that a green
card holder immigrant to the United States is deemed to have abandoned
his domicile and residence in the Philippines.

Petitioner further argues that Section 1, Article V of the Constitution does

not allow provisional registration or a promise by a voter to perform a
condition to be qualified to vote in a political exercise;[13] that the
legislature should not be allowed to circumvent the requirement of the
Constitution on the right of suffrage by providing a condition thereon which
in effect amends or alters the aforesaid residence requirement to qualify a
Filipino abroad to vote.[14] He claims that the right of suffrage should not
be granted to anyone who, on the date of the election, does not possess
the qualifications provided for by Section 1, Article V of the Constitution.

Respondent COMELEC refrained from commenting on this issue.[15]

In compliance with the Resolution of the Court, the Solicitor General filed
his comment for all public respondents. He contraposes that the
constitutional challenge to Section 5(d) must fail because of the absence of
clear and unmistakable showing that said provision of law is repugnant to
the Constitution. He stresses: All laws are presumed to be constitutional; by
the doctrine of separation of powers, a department of government owes a
becoming respect for the acts of the other two departments; all laws are
presumed to have adhered to constitutional limitations; the legislature
intended to enact a valid, sensible, and just law.

In addition, the Solicitor General points out that Section 1, Article V of the
Constitution is a verbatim reproduction of those provided for in the 1935
and the 1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the
House of Representatives[16] wherein the Court held that the term
residence has been understood to be synonymous with domicile under
both Constitutions. He further argues that a person can have only one
domicile but he can have two residences, one permanent (the domicile)
and the other temporary;[17] and that the definition and meaning given to
the term residence likewise applies to absentee voters. Invoking
Romualdez-Marcos vs. COMELEC[18] which reiterates the Courts ruling in
Faypon vs. Quirino,[19] the Solicitor General maintains that Filipinos who
are immigrants or permanent residents abroad may have in fact never
abandoned their Philippine domicile.[20]

Taking issue with the petitioners contention that green card holders are
considered to have abandoned their Philippine domicile, the Solicitor
General suggests that the Court may have to discard its ruling in Caasi vs.
Court of Appeals[21] in so far as it relates to immigrants and permanent
residents in foreign countries who have executed and submitted their
affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains that
through the execution of the requisite affidavits, the Congress of the
Philippines with the concurrence of the President of the Republic had in
fact given these immigrants and permanent residents the opportunity,
pursuant to Section 2, Article V of the Constitution, to manifest that they
had in fact never abandoned their Philippine domicile; that indubitably, they
would have formally and categorically expressed the requisite intentions,
i.e., animus manendi and animus revertendi; that Filipino immigrants and
permanent residents abroad possess the unquestionable right to exercise
the right of suffrage under Section 1, Article V of the Constitution upon
approval of their registration, conformably with R.A. No. 9189.[22]

The seed of the present controversy is the interpretation that is given to the
phrase, qualified citizens of the Philippines abroad as it appears in R.A. No.
9189, to wit:

SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a

system of honest and orderly overseas absentee voting that upholds the
secrecy and sanctity of the ballot. Towards this end, the State ensures
equal opportunity to all qualified citizens of the Philippines abroad in the
exercise of this fundamental right.

SEC. 3. Definition of Terms. For purposes of this Act:

a) Absentee Voting refers to the process by which qualified citizens of the

Philippines abroad, exercise their right to vote;

. . . (Emphasis supplied)

f) Overseas Absentee Voter refers to a citizen of the Philippines who is

qualified to register and vote under this Act, not otherwise disqualified by
law, who is abroad on the day of elections. (Emphasis supplied)

SEC. 4. Coverage. All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on the day
of elections, may vote for president, vice-president, senators and party-list
representatives. (Emphasis supplied)

in relation to Sections 1 and 2, Article V of the Constitution which read:

SEC. 1. Suffrage may be exercised by all citizens of the Philippines not

otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage.

SEC. 2. The Congress shall provide a system for securing the secrecy and
sanctity of the ballot as well as a system for absentee voting by qualified
Filipinos abroad.

. . . . . . . . . (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides that suffrage

may be exercised by (1) all citizens of the Philippines, (2) not otherwise
disqualified by law, (3) at least eighteen years of age, (4) who are residents
in the Philippines for at least one year and in the place where they propose
to vote for at least six months immediately preceding the election. Under
Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an
immigrant or permanent resident who is recognized as such in the host
country unless he/she executes an affidavit declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three years from approval of his/her registration under said Act.

Petitioner questions the rightness of the mere act of execution of an

affidavit to qualify the Filipinos abroad who are immigrants or permanent
residents, to vote. He focuses solely on Section 1, Article V of the
Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No.
9189, totally ignoring the provisions of Section 2 empowering Congress to
provide a system for absentee voting by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give
the impression that it contravenes Section 1, Article V of the Constitution.
Filipino immigrants and permanent residents overseas are perceived as
having left and abandoned the Philippines to live permanently in their host
countries and therefore, a provision in the law enfranchising those who do
not possess the residency requirement of the Constitution by the mere act
of executing an affidavit expressing their intent to return to the Philippines
within a given period, risks a declaration of unconstitutionality. However,
the risk is more apparent than real.

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 must be determined and all public authority administered.[23] Laws
that do not conform to the Constitution shall be stricken down for being
unconstitutional.

Generally, however, all laws are presumed to be constitutional. In Peralta

vs. COMELEC, the Court said:

. . . An act of the legislature, approved by the executive, is presumed to be

within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well. The
question of the validity of every statute is first determined by the legislative
department of the government itself.[24]

Thus, presumption of constitutionality of a law must be overcome

convincingly:

. . . To declare a law unconstitutional, the repugnancy of that law to the

Constitution must be clear and unequivocal, for even if a law is aimed at
the attainment of some public good, no infringement of constitutional rights
is allowed. To strike down a law there must be a clear showing that what
the fundamental law condemns or prohibits, the statute allows it to be
done.[25]

As the essence of R.A. No. 9189 is to enfranchise overseas qualified

Filipinos, it behooves the Court to take a holistic view of the pertinent
provisions of both the Constitution and R.A. No. 9189. It is a basic rule in
constitutional construction that the Constitution should be construed as a
whole. In Chiongbian vs. De Leon,[26] the Court held that a constitutional
provision should function to the full extent of its substance and its terms,
not by itself alone, but in conjunction with all other provisions of that great
document. Constitutional provisions are mandatory in character unless,
either by express statement or by necessary implication, a different
intention is manifest.[27] The intent of the Constitution may be drawn
primarily from the language of the document itself. Should it be ambiguous,
the Court may consider the intent of its framers through their debates in the
constitutional convention.[28]

R.A. No. 9189 was enacted in obeisance to the mandate of the first
paragraph of Section 2, Article V of the Constitution that Congress shall
provide a system for voting by qualified Filipinos abroad. It must be
stressed that Section 2 does not provide for the parameters of the exercise
of legislative authority in enacting said law. Hence, in the absence of
restrictions, Congress is presumed to have duly exercised its function as
defined in Article VI (The Legislative Department) of the Constitution.

To put matters in their right perspective, it is necessary to dwell first on the

significance of absentee voting. The concept of absentee voting is relatively
new. It is viewed thus:

The method of absentee voting has been said to be completely separable

and distinct from the regular system of voting, and to be a new and different
manner of voting from that previously known, and an exception to the
customary and usual manner of voting. The right of absentee and disabled
voters to cast their ballots at an election is purely statutory; absentee voting
was unknown to, and not recognized at, the common law.

Absentee voting is an outgrowth of modern social and economic conditions

devised to accommodate those engaged in military or civil life whose duties
make it impracticable for them to attend their polling places on the day of
election, and the privilege of absentee voting may flow from constitutional
provisions or be conferred by statutes, existing in some jurisdictions, which
provide in varying terms for the casting and reception of ballots by soldiers
and sailors or other qualified voters absent on election day from the district
or precinct of their residence.

Such statutes are regarded as conferring a privilege and not a right, or an

absolute right. When the legislature chooses to grant the right by statute, it
must operate with equality among all the class to which it is granted; but
statutes of this nature may be limited in their application to particular types
of elections. The statutes should be construed in the light of any
constitutional provisions affecting registration and elections, and with due
regard to their texts prior to amendment and to predecessor statutes and
the decisions thereunder; they should also be construed in the light of the
circumstances under which they were enacted; and so as to carry out the
objects thereof, if this can be done without doing violence to their
provisions and mandates. Further, in passing on statutes regulating
absentee voting, the court should look to the whole and every part of the
election laws, the intent of the entire plan, and reasons and spirit of their
adoption, and try to give effect to every portion thereof.[29] (Emphasis
supplied)

Ordinarily, an absentee is not a resident and vice versa; a person cannot

be at the same time, both a resident and an absentee.[30] However, under
our election laws and the countless pronouncements of the Court
pertaining to elections, an absentee remains attached to his residence in
the Philippines as residence is considered synonymous with domicile.

In Romualdez-Marcos,[31] the Court enunciated:

Article 50 of the Civil Code decrees that [f]or the exercise of civil rights and
the fulfillment of civil obligations, the domicile of natural persons is their
place of habitual residence. In Ong vs. Republic, this court took the concept
of domicile to mean an individuals permanent home, a place to which,
whenever absent for business or for pleasure, one intends to return, and
depends on facts and circumstances in the sense that they disclose intent.
Based on the foregoing, domicile includes the twin elements of the fact of
residing or physical presence in a fixed place and animus manendi, or the
intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an

individual to a certain place. It is the physical presence of a person in a
given area, community or country. The essential distinction between
residence and domicile in law is that residence involves the intent to leave
when the purpose for which the resident has taken up his abode ends. One
may seek a place for purposes such as pleasure, business, or health. If a
persons intent be to remain, it becomes his domicile; if his intent is to leave
as soon as his purpose is established it is residence. It is thus, quite
perfectly normal for an individual to have different residences in various
places. However, a person can only have a single domicile, unless, for
various reasons, he successfully abandons his domicile in favor of another
domicile of choice. In Uytengsu vs. Republic, we laid this distinction quite
clearly:

There is a difference between domicile and residence. Residence is used

to indicate a place of abode, whether permanent or temporary; domicile
denotes a fixed permanent residence to which, when absent, one has the
intention of returning. A man may have a residence in one place and a
domicile in another. Residence is not domicile, but domicile is residence
coupled with the intention to remain for an unlimited time. A man can have
but one domicile for the same purpose at any time, but he may have
numerous places of residence. His place of residence is generally his place
of domicile, but it is not by any means necessarily so since no length of
residence without intention of remaining will constitute domicile.

For political purposes the concepts of residence and domicile are dictated
by the peculiar criteria of political laws. As these concepts have evolved in
our election law, what has clearly and unequivocally emerged is the fact
that residence for election purposes is used synonymously with
domicile.[32] (Emphasis supplied)

Aware of the domiciliary legal tie that links an overseas Filipino to his
residence in this country, the framers of the Constitution considered the
circumstances that impelled them to require Congress to establish a
system for overseas absentee voting, thus:

MR. OPLE. With respect to Section 1, it is not clear whether the right of
suffrage, which here has a residential restriction, is not denied to citizens
temporarily residing or working abroad. Based on the statistics of several
government agencies, there ought to be about two million such Filipinos at
this time. Commissioner Bernas had earlier pointed out that these
provisions are really lifted from the two previous Constitutions of 1935 and
1973, with the exception of the last paragraph. They could not therefore
have foreseen at that time the phenomenon now described as the Filipino
labor force explosion overseas.

According to government data, there are now about 600,000 contract

workers and employees, and although the major portions of these
expatriate communities of workers are to be found in the Middle East, they
are scattered in 177 countries in the world.

In a previous hearing of the Committee on Constitutional Commissions and

Agencies, the Chairman of the Commission on Elections, Ramon Felipe,
said that there was no insuperable obstacle to making effective the right of
suffrage for Filipinos overseas. Those who have adhered to their Filipino
citizenship notwithstanding strong temptations are exposed to embrace a
more convenient foreign citizenship. And those who on their own or under
pressure of economic necessity here, find that they have to detach
themselves from their families to work in other countries with definite
tenures of employment. Many of them are on contract employment for one,
two, or three years. They have no intention of changing their residence on
a permanent basis, but are technically disqualified from exercising the right
of suffrage in their countries of destination by the residential requirement in
Section 1 which says:

Suffrage shall be exercised by all citizens of the Philippines not otherwise

disqualified by law, who are eighteen years of age or over, and who shall
have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months preceding the election.

I, therefore, ask the Committee whether at the proper time they might
entertain an amendment that will make this exercise of the right to vote
abroad for Filipino citizens an effective, rather than merely a nominal right
under this proposed Constitution.

FR. BERNAS. Certainly, the Committee will consider that. But more than
just saying that, I would like to make a comment on the meaning of
residence in the Constitution because I think it is a concept that has been
discussed in various decisions of the Supreme Court, particularly in the
case of Faypon vs. Quirino, a 1954 case which dealt precisely with the
meaning of residence in the Election Law. Allow me to quote:

A citizen may leave the place of his birth to look for greener pastures, as
the saying goes, to improve his lot and that, of course, includes study in
other places, practice of his avocation, reengaging in business. When an
election is to be held, the citizen who left his birthplace to improve his lot
may decide to return to his native town, to cast his ballot, but for
professional or business reasons, or for any other reason, he may not
absent himself from the place of his professional or business activities.

So, they are here registered as voters as he has the qualifications to be

one, and is not willing to give up or lose the opportunity to choose the
officials who are to run the government especially in national elections.
Despite such registration, the animus revertendi to his home, to his
domicile or residence of origin has not forsaken him.

This may be the explanation why the registration of a voter in a place other
than his residence of origin has not been deemed sufficient to consider
abandonment or loss of such residence of origin.

In other words, residence in this provision refers to two residence

qualifications: residence in the Philippines and residence in the place
where he will vote. As far as residence in the Philippines is concerned, the
word residence means domicile, but as far as residence in the place where
he will actually cast his ballot is concerned, the meaning seems to be
different. He could have a domicile somewhere else and yet he is a
resident of a place for six months and he is allowed to vote there. So that
there may be serious constitutional obstacles to absentee voting, unless
the vote of the person who is absent is a vote which will be considered as
cast in the place of his domicile.

MR. OPLE. Thank you for citing the jurisprudence.

It gives me scant comfort thinking of about two million Filipinos who should
enjoy the right of suffrage, at least a substantial segment of these overseas
Filipino communities. The Committee, of course, is aware that when this
Article of the Constitution explicitly and unequivocally extends the right of
effective suffrage to Filipinos abroad, this will call for a logistical exercise of
global proportions. In effect, this will require budgetary and administrative
commitments on the part of the Philippine government, mainly through the
COMELEC and the Ministry of Foreign Affairs, and perhaps, a more
extensive elaboration of this mechanism that will be put in place to make
effective the right to vote. Therefore, seeking shelter in some wise
jurisprudence of the past may not be sufficient to meet the demands of the
right of suffrage for Filipinos abroad that I have mentioned. But I want to
thank the Committee for saying that an amendment to this effect may be
entertained at the proper time. . . . . . . . . .
[33] (Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that while millions
of Filipinos reside abroad principally for economic reasons and hence they
contribute in no small measure to the economic uplift of this country, their
voices are marginal insofar as the choice of this countrys leaders is
concerned.

The Constitutional Commission realized that under the laws then existing
and considering the novelty of the system of absentee voting in this
jurisdiction, vesting overseas Filipinos with the right to vote would spawn
constitutional problems especially because the Constitution itself provides
for the residency requirement of voters:

MR. REGALADO. Before I act on that, may I inquire from Commissioner

Monsod if the term absentee voting also includes transient voting; meaning,
those who are, let us say, studying in Manila need not go back to their
places of registration, for instance, in Mindanao, to cast their votes.

MR. MONSOD. I think our provision is for absentee voting by Filipinos

abroad.

MR. REGALADO. How about those people who cannot go back to the
places where they are registered?

MR. MONSOD. Under the present Election Code, there are provisions for
allowing students and military people who are temporarily in another place
to register and vote. I believe that those situations can be covered by the
Omnibus Election Code. The reason we want absentee voting to be in the
Constitution as a mandate to the legislature is that there could be
inconsistency on the residence rule if it is just a question of legislation by
Congress. So, by allowing it and saying that this is possible, then legislation
can take care of the rest.[34] (Emphasis supplied)

Thus, Section 2, Article V of the Constitution came into being to remove

any doubt as to the inapplicability of the residency requirement in Section
1. It is precisely to avoid any problems that could impede the
implementation of its pursuit to enfranchise the largest number of qualified
Filipinos who are not in the Philippines that the Constitutional Commission
explicitly mandated Congress to provide a system for overseas absentee
voting.
The discussion of the Constitutional Commission on the effect of the
residency requirement prescribed by Section 1, Article V of the Constitution
on the proposed system of absentee voting for qualified Filipinos abroad is
enlightening:

MR. SUAREZ. May I just be recognized for a clarification. There are certain
qualifications for the exercise of the right of suffrage like having resided in
the Philippines for at least one year and in the place where they propose to
vote for at least six months preceding the elections. What is the effect of
these mandatory requirements on the matter of the exercise of the right of
suffrage by the absentee voters like Filipinos abroad?

THE PRESIDENT. Would Commissioner Monsod care to answer?

MR. MONSOD. I believe the answer was already given by Commissioner

Bernas, that the domicile requirements as well as the qualifications and
disqualifications would be the same.

THE PRESIDENT. Are we leaving it to the legislature to devise the

system?

FR. BERNAS. I think there is a very legitimate problem raised there.

THE PRESIDENT. Yes.

MR. BENGZON. I believe Commissioner Suarez is clarified.

FR. BERNAS. But I think it should be further clarified with regard to the
residence requirement or the place where they vote in practice; the
understanding is that it is flexible. For instance, one might be a resident of
Naga or domiciled therein, but he satisfies the requirement of residence in
Manila, so he is able to vote in Manila.

MR. TINGSON. Madam President, may I then suggest to the Committee to

change the word Filipinos to QUALIFIED FILIPINO VOTERS. Instead of
VOTING BY FILIPINOS ABROAD, it should be QUALIFIED FILIPINO
VOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD,
would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?

MR. MONSOD. Madam President, I think I would accept the phrase

QUALIFIED FILIPINOS ABROAD because QUALIFIED would assume that
he has the qualifications and none of the disqualifications to vote.

MR. TINGSON. That is right. So does the Committee accept?

FR. BERNAS. QUALIFIED FILIPINOS ABROAD?

THE PRESIDENT. Does the Committee accept the amendment?

MR. REGALADO. Madam President.

THE PRESIDENT. Commissioner Regalado is recognized.

MR. REGALADO. When Commissioner Bengzon asked me to read my

proposed amendment, I specifically stated that the National Assembly shall
prescribe a system which will enable qualified citizens, temporarily absent
from the Philippines, to vote. According to Commissioner Monsod, the use
of the phrase absentee voting already took that into account as its
meaning. That is referring to qualified Filipino citizens temporarily abroad.

MR. MONSOD. Yes, we accepted that. I would like to say that with respect
to registration we will leave it up to the legislative assembly, for example, to
require where the registration is. If it is, say, members of the diplomatic
corps who may be continuously abroad for a long time, perhaps, there can
be a system of registration in the embassies. However, we do not like to
preempt the legislative assembly.

THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is

only to provide a system.

MR. MONSOD. Yes.

THE PRESIDENT. The Commissioner is not stating here that he wants

new qualifications for these absentee voters.

MR. MONSOD. That is right. They must have the qualifications and none of
the disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.

MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied)

Clearly therefrom, the intent of the Constitutional Commission is to entrust

to Congress the responsibility of devising a system of absentee voting. The
qualifications of voters as stated in Section 1 shall remain except for the
residency requirement. This is in fact the reason why the Constitutional
Commission opted for the term qualified Filipinos abroad with respect to the
system of absentee voting that Congress should draw up. As stressed by
Commissioner Monsod, by the use of the adjective qualified with respect to
Filipinos abroad, the assumption is that they have the qualifications and
none of the disqualifications to vote. In fine-tuning the provision on
absentee voting, the Constitutional Commission discussed how the system
should work:

MR. SUAREZ. For clarification purposes, we just want to state for the
record that in the case of qualified Filipino citizens residing abroad and
exercising their right of suffrage, they can cast their votes for the
candidates in the place where they were registered to vote in the
Philippines. So as to avoid any complications, for example, if they are
registered in Angeles City, they could not vote for a mayor in Naga City.

In other words, if that qualified voter is registered in Angeles City, then he

can vote only for the local and national candidates in Angeles City. I just
want to make that clear for the record.

MR. REGALADO. Madam President.

THE PRESIDENT. What does Commissioner Regalado say?

MR. REGALADO. I just want to make a note on the statement of

Commissioner Suarez that this envisions Filipinos residing abroad. The
understanding in the amendment is that the Filipino is temporarily abroad.
He may not be actually residing abroad; he may just be there on a business
trip. It just so happens that the day before the elections he has to fly to the
United States, so he could not cast his vote. He is temporarily abroad, but
not residing there. He stays in a hotel for two days and comes back. This is
not limited only to Filipinos temporarily residing abroad. But as long as he is
temporarily abroad on the date of the elections, then he can fall within the
prescription of Congress in that situation.

MR. SUAREZ. I thank the Commissioner for his further clarification.

Precisely, we need this clarification on record.

MR. MONSOD. Madam President, to clarify what we mean by temporarily

abroad, it need not be on very short trips. One can be abroad on a treaty
traders visa. Therefore, when we talk about registration, it is possible that
his residence is in Angeles and he would be able to vote for the candidates
in Angeles, but Congress or the Assembly may provide the procedure for
registration, like listing ones name, in a registry list in the embassy abroad.
That is still possible under the system.

FR. BERNAS. Madam President, just one clarification if Commissioner

Monsod agrees with this.

Suppose we have a situation of a child of a diplomatic officer who reaches

the voting age while living abroad and he has never registered here. Where
will he register? Will he be a registered voter of a certain locality in the
Philippines?

MR. MONSOD. Yes, it is possible that the system will enable that child to
comply with the registration requirements in an embassy in the United
States and his name is then entered in the official registration book in
Angeles City, for instance.

FR. BERNAS. In other words, he is not a registered voter of Los Angeles,

but a registered voter of a locality here.

MR. MONSOD. That is right. He does not have to come home to the
Philippines to comply with the registration procedure here.

FR. BERNAS. So, he does not have to come home.

MR. BENGZON. Madam President, the Floor Leader wishes to inquire if

there are more clarifications needed from the body.

Also, the Floor Leader is happy to announce that there are no more
registered Commissioners to propose amendments. So I move that we
close the period of amendments.

[36] (Emphasis supplied)

It is clear from these discussions of the members of the Constitutional
Commission that they intended to enfranchise as much as possible all
Filipino citizens abroad who have not abandoned their domicile of origin.
The Commission even intended to extend to young Filipinos who reach
voting age abroad whose parents domicile of origin is in the Philippines,
and consider them qualified as voters for the first time.

It is in pursuance of that intention that the Commission provided for Section

2 immediately after the residency requirement of Section 1. By the doctrine
of necessary implication in statutory construction, which may be applied in
construing constitutional provisions,[37] the strategic location of Section 2
indicates that the Constitutional Commission provided for an exception to
the actual residency requirement of Section 1 with respect to qualified
Filipinos abroad. The same Commission has in effect declared that
qualified Filipinos who are not in the Philippines may be allowed to vote
even though they do not satisfy the residency requirement in Section 1,
Article V of the Constitution.

That Section 2 of Article V of the Constitution is an exception to the

residency requirement found in Section 1 of the same Article was in fact the
subject of debate when Senate Bill No. 2104, which became R.A. No.
9189, was deliberated upon on the Senate floor, thus:

Senator Arroyo. Mr. President, this bill should be looked into in relation to
the constitutional provisions. I think the sponsor and I would agree that the
Constitution is supreme in any statute that we may enact.

Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It

says:

Section 1. Suffrage may be exercised by all citizens of the Philippines not

otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election.

Now, Mr. President, the Constitution says, who shall have resided in the
Philippines. They are permanent immigrants. They have changed
residence so they are barred under the Constitution. This is why I asked
whether this committee amendment which in fact does not alter the original
text of the bill will have any effect on this?

Senator Angara. Good question, Mr. President. And this has been asked in
various fora. This is in compliance with the Constitution. One, the
interpretation here of residence is synonymous with domicile.

As the gentleman and I know, Mr. President, domicile is the intent to return
to ones home. And the fact that a Filipino may have been physically absent
from the Philippines and may be physically a resident of the United States,
for example, but has a clear intent to return to the Philippines, will make
him qualified as a resident of the Philippines under this law.

This is consistent, Mr. President, with the constitutional mandate that we

that Congress must provide a franchise to overseas Filipinos.

If we read the Constitution and the suffrage principle literally as demanding

physical presence, then there is no way we can provide for offshore voting
to our offshore kababayan, Mr. President.

Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of

Article V, it reads: The Congress shall provide a system for securing the
secrecy and sanctity of the ballot as well as a system for absentee voting
by qualified Filipinos abroad.

The key to this whole exercise, Mr. President, is qualified. In other words,
anything that we may do or say in granting our compatriots abroad must be
anchored on the proposition that they are qualified. Absent the qualification,
they cannot vote. And residents (sic) is a qualification.

I will lose votes here from permanent residents so-called green-card

holders, but the Constitution is the Constitution. We cannot compromise on
this. The Senate cannot be a party to something that would affect or impair
the Constitution.

Look at what the Constitution says In the place wherein they propose to
vote for at least six months immediately preceding the election.
Mr. President, all of us here have run (sic) for office.

I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We

are separated only by a creek. But one who votes in Makati cannot vote in
Pateros unless he resides in Pateros for six months. That is how restrictive
our Constitution is. I am not talking even about the Election Code. I am
talking about the Constitution.

As I have said, if a voter in Makati would want to vote in Pateros, yes, he

may do so. But he must do so, make the transfer six months before the
election, otherwise, he is not qualified to vote.

That is why I am raising this point because I think we have a fundamental

difference here.

Senator Angara. It is a good point to raise, Mr. President. But it is a point

already well-debated even in the constitutional commission of 1986. And
the reason Section 2 of Article V was placed immediately after the six-
month/one-year residency requirement is to demonstrate unmistakably that
Section 2 which authorizes absentee voting is an exception to the six-
month/one-year residency requirement. That is the first principle, Mr.
President, that one must remember.

The second reason, Mr. President, is that under our jurisprudence and I
think this is so well-entrenched that one need not argue about it residency
has been interpreted as synonymous with domicile.

But the third more practical reason, Mr. President, is, if we follow the
interpretation of the gentleman, then it is legally and constitutionally
impossible to give a franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite ridiculous because that is
exactly the whole point of this exercise to enfranchise them and empower
them to vote.

[38] (Emphasis supplied)

Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the
absentee voting process, to wit:

SEC. 4. Coverage. All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on the day
of elections, may vote for president, vice-president, senators and party-list
representatives.

which does not require physical residency in the Philippines; and Section 5
of the assailed law which enumerates those who are disqualified, to wit:

SEC. 5. Disqualifications. The following shall be disqualified from voting

under this Act:

a) Those who have lost their Filipino citizenship in accordance with

Philippine laws;

b) Those who have expressly renounced their Philippine citizenship and

who have pledged allegiance to a foreign country;

c) Those who have committed and are convicted in a final judgment by a

court or tribunal of an offense punishable by imprisonment of not less than
one (1) year, including those who have committed and been found guilty of
Disloyalty as defined under Article 137 of the Revised Penal Code, such
disability not having been removed by plenary pardon or amnesty:
Provided, however, That any person disqualified to vote under this
subsection shall automatically acquire the right to vote upon expiration of
five (5) years after service of sentence; Provided, further, That the
Commission may take cognizance of final judgments issued by foreign
courts or tribunals only on the basis of reciprocity and subject to the
formalities and processes prescribed by the Rules of Court on execution of
judgments;

d) An immigrant or a permanent resident who is recognized as such in the

host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship in
another country. Failure to return shall be cause for the removal of the
name of the immigrant or permanent resident from the National Registry of
Absentee Voters and his/her permanent disqualification to vote in absentia.

e) Any citizen of the Philippines abroad previously declared insane or

incompetent by competent authority in the Philippines or abroad, as verified
by the Philippine embassies, consulates or foreign service establishments
concerned, unless such competent authority subsequently certifies that
such person is no longer insane or incompetent.

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically
disqualifies an immigrant or permanent resident who is recognized as such
in the host country because immigration or permanent residence in another
country implies renunciation of ones residence in his country of origin.
However, same Section allows an immigrant and permanent resident
abroad to register as voter for as long as he/she executes an affidavit to
show that he/she has not abandoned his domicile in pursuance of the
constitutional intent expressed in Sections 1 and 2 of Article V that all
citizens of the Philippines not otherwise disqualified by law must be entitled
to exercise the right of suffrage and, that Congress must establish a system
for absentee voting; for otherwise, if actual, physical residence in the
Philippines is required, there is no sense for the framers of the Constitution
to mandate Congress to establish a system for absentee voting.

Contrary to the claim of petitioner, the execution of the affidavit itself is not
the enabling or enfranchising act. The affidavit required in Section 5(d) is
not only proof of the intention of the immigrant or permanent resident to go
back and resume residency in the Philippines, but more significantly, it
serves as an explicit expression that he had not in fact abandoned his
domicile of origin. Thus, it is not correct to say that the execution of the
affidavit under Section 5(d) violates the Constitution that proscribes
provisional registration or a promise by a voter to perform a condition to be
qualified to vote in a political exercise.

To repeat, the affidavit is required of immigrants and permanent residents

abroad because by their status in their host countries, they are presumed
to have relinquished their intent to return to this country; thus, without the
affidavit, the presumption of abandonment of Philippine domicile shall
remain.

Further perusal of the transcripts of the Senate proceedings discloses

another reason why the Senate required the execution of said affidavit. It
wanted the affiant to exercise the option to return or to express his intention
to return to his domicile of origin and not to preempt that choice by
legislation. Thus:
Senator Villar. Yes, we are going back.

It states that: For Filipino immigrants and those who have acquired
permanent resident status abroad, a requirement for the registration is the
submission of a Sworn Declaration of Intent to Return duly sworn before
any Philippine embassy or consulate official authorized to administer oath

Mr. President, may we know the rationale of this provision? Is the purpose
of this Sworn Declaration to include only those who have the intention of
returning to be qualified to exercise the right of suffrage? What if the
Filipino immigrant has no purpose of returning? Is he automatically
disbarred from exercising this right to suffrage?

Senator Angara. The rationale for this, Mr. President, is that we want to be
expansive and all-inclusive in this law. That as long as he is a Filipino, no
matter whether he is a green-card holder in the U.S. or not, he will be
authorized to vote. But if he is already a green-card holder, that means he
has acquired permanent residency in the United States, then he must
indicate an intention to return. This is what makes for the definition of
domicile. And to acquire the vote, we thought that we would require the
immigrants and the green-card holders . . . Mr. President, the three
administration senators are leaving, maybe we may ask for a vote
[Laughter].

Senator Villar. For a merienda, Mr. President.

Senator Angara. Mr. President, going back to the business at hand. The
rationale for the requirement that an immigrant or a green-card holder
should file an affidavit that he will go back to the Philippines is that, if he is
already an immigrant or a green-card holder, that means he may not return
to the country any more and that contradicts the definition of domicile under
the law.

But what we are trying to do here, Mr. President, is really provide the
choice to the voter. The voter, after consulting his lawyer or after
deliberation within the family, may decide No, I think we are risking our
permanent status in the United States if we file an affidavit that we want to
go back. But we want to give him the opportunity to make that decision. We
do not want to make that decision for him. [39] (Emphasis supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green
card holders are disqualified to run for any elective office finds no
application to the present case because the Caasi case did not, for obvious
reasons, consider the absentee voting rights of Filipinos who are
immigrants and permanent residents in their host countries.

In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189,
they may still be considered as a qualified citizen of the Philippines abroad
upon fulfillment of the requirements of registration under the new law for
the purpose of exercising their right of suffrage.

It must be emphasized that Section 5(d) does not only require an affidavit
or a promise to resume actual physical permanent residence in the
Philippines not later than three years from approval of his/her registration,
the Filipinos abroad must also declare that they have not applied for
citizenship in another country. Thus, they must return to the Philippines;
otherwise, their failure to return shall be cause for the removal of their
names from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia.

Thus, Congress crafted a process of registration by which a Filipino voter

permanently residing abroad who is at least eighteen years old, not
otherwise disqualified by law, who has not relinquished Philippine
citizenship and who has not actually abandoned his/her intentions to return
to his/her domicile of origin, the Philippines, is allowed to register and vote
in the Philippine embassy, consulate or other foreign service
establishments of the place which has jurisdiction over the country where
he/she has indicated his/her address for purposes of the elections, while
providing for safeguards to a clean election.

Thus, Section 11 of R.A. No. 9189 provides:

SEC. 11. Procedure for Application to Vote in Absentia.

11.1. Every qualified citizen of the Philippines abroad whose application for
registration has been approved, including those previously registered under
Republic Act No. 8189, shall, in every national election, file with the officer
of the embassy, consulate or other foreign service establishment
authorized by the Commission, a sworn written application to vote in a form
prescribed by the Commission. The authorized officer of such embassy,
consulate or other foreign service establishment shall transmit to the
Commission the said application to vote within five (5) days from receipt
thereof. The application form shall be accomplished in triplicate and
submitted together with the photocopy of his/her overseas absentee voter
certificate of registration.

11.2. Every application to vote in absentia may be done personally at, or by

mail to, the embassy, consulate or foreign service establishment, which has
jurisdiction over the country where he/she has indicated his/her address for
purposes of the elections.

11.3. Consular and diplomatic services rendered in connection with the

overseas absentee voting processes shall be made available at no cost to
the overseas absentee voter.

Contrary to petitioners claim that Section 5(d) circumvents the Constitution,

Congress enacted the law prescribing a system of overseas absentee
voting in compliance with the constitutional mandate. Such mandate
expressly requires that Congress provide a system of absentee voting that
necessarily presupposes that the qualified citizen of the Philippines abroad
is not physically present in the country. The provisions of Sections 5(d) and
11 are components of the system of overseas absentee voting established
by R.A. No. 9189. The qualified Filipino abroad who executed the affidavit
is deemed to have retained his domicile in the Philippines. He is presumed
not to have lost his domicile by his physical absence from this country. His
having become an immigrant or permanent resident of his host country
does not necessarily imply an abandonment of his intention to return to his
domicile of origin, the Philippines. Therefore, under the law, he must be
given the opportunity to express that he has not actually abandoned his
domicile in the Philippines by executing the affidavit required by Sections
5(d) and 8(c) of the law.

Petitioners speculative apprehension that the implementation of Section

5(d) would affect the credibility of the elections is insignificant as what is
important is to ensure that all those who possess the qualifications to vote
on the date of the election are given the opportunity and permitted to freely
do so. The COMELEC and the Department of Foreign Affairs have enough
resources and talents to ensure the integrity and credibility of any election
conducted pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his
undertaking to return to the Philippines, the penalty of perpetual
disenfranchisement provided for by Section 5(d) would suffice to serve as
deterrence to non-compliance with his/her undertaking under the affidavit.

Petitioner argues that should a sizable number of immigrants renege on

their promise to return, the result of the elections would be affected and
could even be a ground to contest the proclamation of the winning
candidates and cause further confusion and doubt on the integrity of the
results of the election. Indeed, the probability that after an immigrant has
exercised the right to vote, he shall opt to remain in his host country
beyond the third year from the execution of the affidavit, is not farfetched.
However, it is not for this Court to determine the wisdom of a legislative
exercise. As expressed in Taada vs. Tuvera,[40] the Court is not called
upon to rule on the wisdom of the law or to repeal it or modify it if we find it
impractical.

Congress itself was conscious of said probability and in fact, it has

addressed the expected problem. Section 5(d) itself provides for a
deterrence which is that the Filipino who fails to return as promised stands
to lose his right of suffrage. Under Section 9, should a registered overseas
absentee voter fail to vote for two consecutive national elections, his name
may be ordered removed from the National Registry of Overseas Absentee
Voters.

Other serious legal questions that may be raised would be: what happens
to the votes cast by the qualified voters abroad who were not able to return
within three years as promised? What is the effect on the votes cast by the
non-returnees in favor of the winning candidates? The votes cast by
qualified Filipinos abroad who failed to return within three years shall not be
invalidated because they were qualified to vote on the date of the elections,
but their failure to return shall be cause for the removal of the names of the
immigrants or permanent residents from the National Registry of Absentee
Voters and their permanent disqualification to vote in absentia.

In fine, considering the underlying intent of the Constitution, the Court does
not find Section 5(d) of R.A. No. 9189 as constitutionally defective.

B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act
in contravention of Section 4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee voter may
vote for president, vice-president, senators and party-list representatives.

Section 18.5 of the same Act provides:

SEC. 18. On-Site Counting and Canvassing.

.........

18. 5 The canvass of votes shall not cause the delay of the proclamation of
a winning candidate if the outcome of the election will not be affected by
the results thereof. Notwithstanding the foregoing, the Commission is
empowered to order the proclamation of winning candidates despite the
fact that the scheduled election has not taken place in a particular country
or countries, if the holding of elections therein has been rendered
impossible by events, factors and circumstances peculiar to such country
or countries, in which events, factors and circumstances are beyond the
control or influence of the Commission. (Emphasis supplied)

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189
empowering the COMELEC to order the proclamation of winning
candidates insofar as it affects the canvass of votes and proclamation of
winning candidates for president and vice-president, is unconstitutional
because it violates the following provisions of paragraph 4, Section 4 of
Article VII of the Constitution:

SEC. 4 . . .

The returns of every election for President and Vice-President, duly

certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate. Upon
receipt of the certificates of canvass, the President of the Senate shall, not
later than thirty days after the day of the election, open all the certificates in
the presence of the Senate and the House of Representatives in joint
public session, and the Congress, upon determination of the authenticity
and due execution thereof in the manner provided by law, canvass the
votes.

The person having the highest number of votes shall be proclaimed

elected, but in case two or more shall have an equal and highest number of
votes, one of them shall forthwith be chosen by the vote of a majority of all
the Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the
certificates.

...

which gives to Congress the duty to canvass the votes and proclaim the
winning candidates for president and vice-president.

The Solicitor General asserts that this provision must be harmonized with
paragraph 4, Section 4, Article VII of the Constitution and should be taken
to mean that COMELEC can only proclaim the winning Senators and party-
list representatives but not the President and Vice-President.[41]

Respondent COMELEC has no comment on the matter.

Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of

R.A. No. 9189 is far too sweeping that it necessarily includes the
proclamation of the winning candidates for the presidency and the vice-
presidency.

Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article

VII of the Constitution only insofar as said Section totally disregarded the
authority given to Congress by the Constitution to proclaim the winning
candidates for the positions of president and vice-president.

In addition, the Court notes that Section 18.4 of the law, to wit:

18.4. . . . Immediately upon the completion of the canvass, the chairman of

the Special Board of Canvassers shall transmit via facsimile, electronic
mail, or any other means of transmission equally safe and reliable the
Certificates of Canvass and the Statements of Votes to the Commission, . .
. [Emphasis supplied]

clashes with paragraph 4, Section 4, Article VII of the Constitution which

provides that the returns of every election for President and Vice-President
shall be certified by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that
constitutionally belongs to it or, as aptly stated by petitioner, to encroach on
the power of Congress to canvass the votes for president and vice-
president and the power to proclaim the winners for the said positions. The
provisions of the Constitution as the fundamental law of the land should be
read as part of The Overseas Absentee Voting Act of 2003 and hence, the
canvassing of the votes and the proclamation of the winning candidates for
president and vice-president for the entire nation must remain in the hands
of Congress.

C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article

IX-A of the Constitution?

Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-
A (Common Provisions) of the Constitution, to wit:

Section 1. The Constitutional Commissions, which shall be independent,

are the Civil Service Commission, the Commission on Elections, and the
Commission on Audit. (Emphasis supplied)

He submits that the creation of the Joint Congressional Oversight

Committee with the power to review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the COMELEC, R.A.
No. 9189 intrudes into the independence of the COMELEC which, as a
constitutional body, is not under the control of either the executive or
legislative departments of government; that only the COMELEC itself can
promulgate rules and regulations which may be changed or revised only by
the majority of its members; and that should the rules promulgated by the
COMELEC violate any law, it is the Court that has the power to review the
same via the petition of any interested party, including the legislators.

It is only on this question that respondent COMELEC submitted its

Comment. It agrees with the petitioner that Sections 19 and 25 of R.A. No.
9189 are unconstitutional. Like the petitioner, respondent COMELEC
anchors its claim of unconstitutionality of said Sections upon Section 1,
Article IX-A of the Constitution providing for the independence of the
constitutional commissions such as the COMELEC. It asserts that its power
to formulate rules and regulations has been upheld in Gallardo vs. Tabamo,
Jr.[42] where this Court held that the power of the COMELEC to formulate
rules and regulations is implicit in its power to implement regulations under
Section 2(1) of Article IX-C[43] of the Constitution. COMELEC joins the
petitioner in asserting that as an independent constitutional body, it may not
be subject to interference by any government instrumentality and that only
this Court may review COMELEC rules and only in cases of grave abuse of
discretion.

The COMELEC adds, however, that another provision, vis--vis its rule-
making power, to wit:

SEC. 17. Voting by Mail.

17.1. For the May, 2004 elections, the Commission shall authorize voting
by mail in not more than three (3) countries, subject to the approval of the
Congressional Oversight Committee. Voting by mail may be allowed in
countries that satisfy the following conditions:

a) Where the mailing system is fairly well-developed and secure to prevent

occasion for fraud;

b) Where there exists a technically established identification system that

would preclude multiple or proxy voting; and

c) Where the system of reception and custody of mailed ballots in the

embassies, consulates and other foreign service establishments concerned
are adequate and well-secured.

Thereafter, voting by mail in any country shall be allowed only upon review
and approval of the Joint Congressional Oversight Committee.

. . . . . . . . . (Emphasis supplied)

is likewise unconstitutional as it violates Section 1, Article IX-A mandating

the independence of constitutional commissions.

The Solicitor General takes exception to his prefatory statement that the
constitutional challenge must fail and agrees with the petitioner that
Sections 19 and 25 are invalid and unconstitutional on the ground that
there is nothing in Article VI of the Constitution on Legislative Department
that would as much as imply that Congress has concurrent power to
enforce and administer election laws with the COMELEC; and by the
principles of exclusio unius est exclusio alterius and expressum facit
cessare tacitum, the constitutionally enumerated powers of Congress
circumscribe its authority to the exclusion of all others.

The parties are unanimous in claiming that Sections 19, 25 and portions of
Section 17.1 are unconstitutional. Thus, there is no actual issue forged on
this question raised by petitioner.

However, the Court finds it expedient to expound on the role of Congress

through the Joint Congressional Oversight Committee (JCOC) vis--vis the
independence of the COMELEC, as a constitutional body.

R.A. No. 9189 created the JCOC, as follows:

SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional

Oversight Committee is hereby created, composed of the Chairman of the
Senate Committee on Constitutional Amendments, Revision of Codes and
Laws, and seven (7) other Senators designated by the Senate President,
and the Chairman of the House Committee on Suffrage and Electoral
Reforms, and seven (7) other Members of the House of Representatives
designated by the Speaker of the House of Representatives: Provided,
That, of the seven (7) members to be designated by each House of
Congress, four (4) should come from the majority and the remaining three
(3) from the minority.

The Joint Congressional Oversight Committee shall have the power to

monitor and evaluate the implementation of this Act. It shall review, revise,
amend and approve the Implementing Rules and Regulations promulgated
by the Commission. (Emphasis supplied)

SEC. 19. Authority of the Commission to Promulgate Rules. The

Commission shall issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty (60) days from the
effectivity of this Act. The Implementing Rules and Regulations shall be
submitted to the Joint Congressional Oversight Committee created by
virtue of this Act for prior approval.

. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of Representatives, the
Joint Congressional Oversight Committee (JCOC) is a purely legislative
body. There is no question that the authority of Congress to monitor and
evaluate the implementation of R.A. No. 9189 is geared towards possible
amendments or revision of the law itself and thus, may be performed in aid
of its legislation.

However, aside from its monitoring and evaluation functions, R.A. No. 9189
gives to the JCOC the following functions: (a) to review, revise, amend and
approve the Implementing Rules and Regulations (IRR) promulgated by the
COMELEC [Sections 25 and 19]; and (b) subject to the approval of the
JCOC [Section 17.1], the voting by mail in not more than three countries for
the May 2004 elections and in any country determined by COMELEC.

The ambit of legislative power under Article VI of the Constitution is

circumscribed by other constitutional provisions. One such provision is
Section 1 of Article IX-A of the 1987 Constitution ordaining that
constitutional commissions such as the COMELEC shall be independent.

Interpreting Section 1, Article X of the 1935 Constitution providing that

there shall be an independent COMELEC, the Court has held that
[w]hatever may be the nature of the functions of the Commission on
Elections, the fact is that the framers of the Constitution wanted it to be
independent from the other departments of the Government.[44] In an
earlier case, the Court elucidated:

The Commission on Elections is a constitutional body. It is intended to play

a distinct and important part in our scheme of government. In the discharge
of its functions, it should not be hampered with restrictions that would be
fully warranted in the case of a less responsible organization. The
Commission may err, so may this court also. It should be allowed
considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created free, orderly
and honest elections. We may not agree fully with its choice of means, but
unless these are clearly illegal or constitute gross abuse of discretion, this
court should not interfere. Politics is a practical matter, and political
questions must be dealt with realistically not from the standpoint of pure
theory. The Commission on Elections, because of its fact-finding facilities,
its contacts with political strategists, and its knowledge derived from actual
experience in dealing with political controversies, is in a peculiarly
advantageous position to decide complex political questions.

[45] (Emphasis supplied)

The Court has no general powers of supervision over COMELEC which is
an independent body except those specifically granted by the Constitution,
that is, to review its decisions, orders and rulings.[46] In the same vein, it is
not correct to hold that because of its recognized extensive legislative
power to enact election laws, Congress may intrude into the independence
of the COMELEC by exercising supervisory powers over its rule-making
authority.

By virtue of Section 19 of R.A. No. 9189, Congress has empowered the

COMELEC to issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty days from the effectivity of
this Act. This provision of law follows the usual procedure in drafting rules
and regulations to implement a law the legislature grants an administrative
agency the authority to craft the rules and regulations implementing the law
it has enacted, in recognition of the administrative expertise of that agency
in its particular field of operation.[47] Once a law is enacted and approved,
the legislative function is deemed accomplished and complete. The
legislative function may spring back to Congress relative to the same law
only if that body deems it proper to review, amend and revise the law, but
certainly not to approve, review, revise and amend the IRR of the
COMELEC.

By vesting itself with the powers to approve, review, amend, and revise the
IRR for The Overseas Absentee Voting Act of 2003, Congress went
beyond the scope of its constitutional authority. Congress trampled upon
the constitutional mandate of independence of the COMELEC. Under such
a situation, the Court is left with no option but to withdraw from its usual
reticence in declaring a provision of law unconstitutional.

The second sentence of the first paragraph of Section 19 stating that [t]he
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior
approval, and the second sentence of the second paragraph of Section 25
stating that [i]t shall review, revise, amend and approve the Implementing
Rules and Regulations promulgated by the Commission, whereby
Congress, in both provisions, arrogates unto itself a function not specifically
vested by the Constitution, should be stricken out of the subject statute for
constitutional infirmity. Both provisions brazenly violate the mandate on the
independence of the COMELEC.

Similarly, the phrase, subject to the approval of the Congressional

Oversight Committee in the first sentence of Section 17.1 which empowers
the Commission to authorize voting by mail in not more than three
countries for the May, 2004 elections; and the phrase, only upon review
and approval of the Joint Congressional Oversight Committee found in the
second paragraph of the same section are unconstitutional as they require
review and approval of voting by mail in any country after the 2004
elections. Congress may not confer upon itself the authority to approve or
disapprove the countries wherein voting by mail shall be allowed, as
determined by the COMELEC pursuant to the conditions provided for in
Section 17.1 of R.A. No. 9189.[48] Otherwise, Congress would overstep
the bounds of its constitutional mandate and intrude into the independence
of the COMELEC.

During the deliberations, all the members of the Court agreed to adopt the
separate opinion of Justice Reynato S. Puno as part of the ponencia on the
unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as
they relate to the creation of and the powers given to the Joint
Congressional Oversight Committee.

WHEREFORE, the petition is partly GRANTED. The following portions of

R.A. No. 9189 are declared VOID for being UNCONSTITUTIONAL:

a) The phrase in the first sentence of the first paragraph of Section 17.1, to
wit: subject to the approval of the Joint Congressional Oversight
Committee;

b) The portion of the last paragraph of Section 17.1, to wit: only upon
review and approval of the Joint Congressional Oversight Committee;

c) The second sentence of the first paragraph of Section 19, to wit: The
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior
approval; and

d) The second sentence in the second paragraph of Section 25, to wit: It

shall review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the Commission of the same law;

for being repugnant to Section 1, Article IX-A of the Constitution mandating

the independence of constitutional commission, such as COMELEC.

The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with

respect only to the authority given to the COMELEC to proclaim the
winning candidates for the Senators and party-list representatives but not
as to the power to canvass the votes and proclaim the winning candidates
for President and Vice-President which is lodged with Congress under
Section 4, Article VII of the Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said
law continues to be in full force and effect.

SO ORDERED.

Romulo Macalintal, as a lawyer and a taxpayer, questions the validity of the

Overseas Absentee Voting Act of 2003 (R.A. 9189). He questions the
validity of the said act on the following grounds, among others:

That the provision that a Filipino already considered an immigrant abroad

can be allowed to participate in absentee voting provided he executes an
affidavit stating his intent to return to the Philippines is void because it
dispenses of the requirement that a voter must be a resident of the
Philippines for at least one year and in the place where he intends to vote
for at least 6 months immediately preceding the election;
That the provision allowing the Commission on Elections (COMELEC) to
proclaim winning candidates insofar as it affects the canvass of votes and
proclamation of winning candidates for president and vice-president, is
unconstitutional because it violates the Constitution for it is Congress which
is empowered to do so.
ISSUE: Whether or not Macalintals arguments are correct.

HELD: No.

There can be no absentee voting if the absentee voters are required to

physically reside in the Philippines within the period required for non-
absentee voters. Further, as understood in election laws, domicile and
resident are interchangeably used. Hence, one is a resident of his domicile
(insofar as election laws is concerned). The domicile is the place where
one has the intention to return to. Thus, an immigrant who executes an
affidavit stating his intent to return to the Philippines is considered a
resident of the Philippines for purposes of being qualified as a voter
(absentee voter to be exact). If the immigrant does not execute the affidavit
then he is not qualified as an absentee voter.
The said provision should be harmonized. It could not be the intention of
Congress to allow COMELEC to include the proclamation of the winners in
the vice-presidential and presidential race. To interpret it that way would
mean that Congress allowed COMELEC to usurp its power. The
canvassing and proclamation of the presidential and vice presidential
elections is still lodged in Congress and was in no way transferred to the
COMELEC by virtue of RA 9189.

Manila Prince Hotel v. Government Service Insurance System, 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.
DECISION
BELLOSILLO, J.:

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 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 x x x x

b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS x x x x

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 managers 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
x x x x[5] which respondent GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has

disregarded the tender of the matching bid and that the sale of 51% of the
MHC may be hastened by respondent GSIS and consummated with
Renong Berhad, petitioner came to this Court on prohibition and
mandamus. On 18 October 1995 the Court issued a temporary restraining
order enjoining respondents from perfecting and consummating the sale to
the Malaysian firm.

On 10 September 1996 the instant case was accepted by the Court En

Banc after it was referred to it by the First Division. The case was then set
for oral arguments with former Chief Justice Enrique M. Fernando and Fr.
Joaquin G. Bernas, S.J., as amici curiae.

In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture. It is a proud legacy
of an earlier generation of Filipinos who believed in the nobility and
sacredness of independence and its power and capacity to release the full
potential of the Filipino people. To all intents and purposes, it has become
a part of the national patrimony.[6] Petitioner also argues that since 51% of
the shares of the MHC carries with it the ownership of the business of the
hotel which is owned by respondent GSIS, a government-owned and
controlled corporation, the hotel business of respondent GSIS being a part
of the tourism industry is unquestionably a part of the national economy.
Thus, any transaction involving 51% of the shares of stock of the MHC is
clearly covered by the term national economy, to which Sec. 10, second
par., Art. XII, 1987 Constitution, applies.[7]

It is also the thesis of petitioner that since Manila Hotel is part of the
national patrimony and its business also unquestionably part of the national
economy petitioner should be preferred after it has matched the bid offer of
the Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer
this to the other Qualified Bidders that have validly submitted bids provided
that these Qualified Bidders are willing to match the highest bid in terms of
price per share.[8]

Respondents except. They maintain that: First, Sec. 10, second par., Art.
XII, of the 1987 Constitution is merely a statement of principle and policy
since it is not a self-executing provision and requires implementing
legislation(s) x x x x Thus, for the said provision to operate, there must be
existing laws to lay down conditions under which business may be done.[9]

Second, granting that this provision is self-executing, Manila Hotel does not
fall under the term national patrimony which only refers to lands of the
public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna and all marine wealth in its territorial sea, and exclusive marine zone
as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while petitioner speaks of the
guests who have slept in the hotel and the events that have transpired
therein which make the hotel historic, these alone do not make the hotel fall
under the patrimony of the nation. What is more, the mandate of the
Constitution is addressed to the State, not to respondent GSIS which
possesses a personality of its own separate and distinct from the
Philippines as a State.

Third, granting that the Manila Hotel forms part of the national patrimony,
the constitutional provision invoked is still inapplicable since what is being
sold is only 51% of the outstanding shares of the corporation, not the hotel
building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony.
Moreover, if the disposition of the shares of the MHC is really contrary to
the Constitution, petitioner should have questioned it right from the
beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding
rules which provides that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share, is
misplaced. Respondents postulate that the privilege of submitting a
matching bid has not yet arisen since it only takes place if for any reason,
the Highest Bidder cannot be awarded the Block of Shares. Thus the
submission by petitioner of a matching bid is premature since Renong
Berhad could still very well be awarded the block of shares and the
condition giving rise to the exercise of the privilege to submit a matching
bid had not yet taken place.

Finally, the prayer for prohibition grounded on grave abuse of discretion

should fail since respondent GSIS did not exercise its discretion in a
capricious, whimsical manner, and if ever it did abuse its discretion it was
not so patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law. Similarly, the petition for
mandamus should fail as petitioner has no clear legal right to what it
demands and respondents do not have an imperative duty to perform the
act required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the

governance and administration of a nation. It is supreme, imperious,
absolute and unalterable except by the authority from which it emanates. It
has been defined as the fundamental and paramount law of the nation.[10]
It prescribes the permanent framework of a system of government, assigns
to the different departments their respective powers and duties, and
establishes certain fixed principles on which government is founded. The
fundamental conception in other words is that it is a supreme law to which
all other laws must conform and in accordance with which all private rights
must be determined and all public authority administered.[11] Under the
doctrine of constitutional supremacy, if a law or contract violates any norm
of the constitution that law or contract whether promulgated by the
legislative or by the executive branch or entered into by private persons for
private purposes is null and void and without any force and effect. Thus,
since the Constitution is the fundamental, paramount and supreme law of
the nation, it is deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and

principles. Their provisions command the legislature to enact laws and
carry out the purposes of the framers who merely establish an outline of
government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of
citizens.[12] A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the aid
of supplementary or enabling legislation, or that which supplies sufficient
rule by means of which the right it grants may be enjoyed or protected, is
self-executing. Thus a constitutional provision is self-executing if the nature
and extent of the right conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the
subject is referred to the legislature for action.[13]

As against constitutions of the past, modern constitutions have been

generally drafted upon a different principle and have often become in effect
extensive codes of laws intended to operate directly upon the people in a
manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a
legislative body. Hence, unless it is expressly provided that a legislative act
is necessary to enforce a constitutional mandate, the presumption now is
that all provisions of the constitution are self-executing. If the constitutional
provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the
mandate of the fundamental law.[14] This can be cataclysmic. That is why
the prevailing view is, as it has always been, that -

x x x x in case of doubt, the Constitution should be considered self-

executing rather than non-self-executing x x x x Unless the contrary is
clearly intended, the provisions of the Constitution should be considered
self-executing, as a contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective. These provisions
would be subordinated to the will of the lawmaking body, which could make
them entirely meaningless by simply refusing to pass the needed
implementing statute.[15]

Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from discussions on
the floor of the 1986 Constitutional Commission -
MR. RODRIGO. Madam President, I am asking this question as the
Chairman of the Committee on Style. If the wording of PREFERENCE is
given to QUALIFIED FILIPINOS, can it be understood as a preference to
qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why do we
not make it clear? To qualified Filipinos as against aliens?

THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to

remove the word QUALIFIED?

MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as

against whom? As against aliens or over aliens ?

MR. NOLLEDO. Madam President, I think that is understood. We use the

word QUALIFIED because the existing laws or prospective laws will always
lay down conditions under which business may be done. For example,
qualifications on capital, qualifications on the setting up of other financial
structures, et cetera (underscoring 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 impairing the self-executing nature of
constitutional provisions.

In self-executing constitutional provisions, the legislature may still enact

legislation to facilitate the exercise of powers directly granted by the
constitution, further the operation of such a provision, prescribe a practice
to be used for its enforcement, provide a convenient remedy for the
protection of the rights secured or the determination thereof, or place
reasonable safeguards around the exercise of the right. The mere fact that
legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing 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.

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.

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 1930s. 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 1950s and 1960s, 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.

xxxx

MR. MONSOD. Madam President, apparently the proponent is agreeable,

but we have to raise a question. Suppose it is a corporation that is 80-
percent Filipino, do we not give it preference?

MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino.

What about a corporation wholly owned by Filipino citizens?

MR. MONSOD. At least 60 percent, Madam President.

MR. DAVIDE. Is that the intention?

MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that

the preference should only be 100-percent Filipino.

MR. DAVIDE. I want to get that meaning clear because QUALIFIED

FILIPINOS may refer only to individuals and not to juridical personalities or
entities.

MR. MONSOD. We agree, Madam President.[39]

xxxx

MR. RODRIGO. Before we vote, may I request that the amendment be

read again.

MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS,

PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE
TO QUALIFIED FILIPINOS. And the word Filipinos here, as intended by
the proponents, will include not only individual Filipinos but also Filipino-
controlled entities or entities fully-controlled by Filipinos.[40]

The phrase preference to qualified Filipinos was explained thus -

MR. FOZ. Madam President, I would like to request Commissioner Nolledo
to please restate his amendment so that I can ask a question.

MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND

CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS.

MR. FOZ. In connection with that amendment, if a foreign enterprise is

qualified and a Filipino enterprise is also qualified, will the Filipino
enterprise still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred?

MR. NOLLEDO. The answer is yes.

MR. FOZ. Thank you.[41]

Expounding further on the Filipino First Policy provision Commissioner

Nolledo continues

MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL

- THE STATE SHALL 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 x x x x
This provision was never found in previous Constitutions x x x x

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]

The penchant to try to whittle away the mandate of the Constitution by

arguing that the subject provision is not self-executory and requires
implementing legislation is quite disturbing. The attempt to violate a clear
constitutional provision - by the government itself - is only too distressing.
To adopt such a line of reasoning is to renounce the duty to ensure
faithfulness to the Constitution. For, even some of the provisions of the
Constitution which evidently need implementing legislation have juridical
life of their own and can be the source of a judicial remedy. We cannot
simply afford the government a defense that arises out of the failure to
enact further enabling, implementing or guiding legislation. In fine, the
discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is
apt -

The executive department has a constitutional duty to implement laws,

including the Constitution, even before Congress acts - provided that there
are discoverable legal standards for executive action. When the executive
acts, it must be guided by its own understanding of the constitutional
command and of applicable laws. The responsibility for reading and
understanding the Constitution and the laws is not the sole prerogative of
Congress. If it were, the executive would have to ask Congress, or perhaps
the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government
operates.[45]

Respondents further argue that the constitutional provision is addressed to

the State, not to respondent GSIS which by itself possesses a separate
and distinct personality. This argument again is at best specious. It is
undisputed that the sale of 51% of the MHC could only be carried out with
the prior approval of the State acting through respondent Committee on
Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this
fact alone makes the sale of the assets of respondents GSIS and MHC a
state action. In constitutional jurisprudence, the acts of persons distinct
from the government are considered state action covered by the
Constitution (1) when the activity it engages in is a public function; (2) when
the government is so significantly involved with the private actor as to make
the government responsible for his action; and, (3) when the government
has approved or authorized the action. It is evident that the act of
respondent GSIS in selling 51% of its share in respondent MHC comes
under the second and third categories of state action. Without doubt
therefore the transaction, although entered into by respondent GSIS, is in
fact a transaction of the State and therefore subject to the constitutional
command.[46]

When the Constitution addresses the State it refers not only to the people
but also to the government as elements of the State. After all, government
is composed of three (3) divisions of power - legislative, executive and
judicial. Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three (3) branches of government. It is
undeniable that in this case the subject constitutional injunction is
addressed among others to the Executive Department and respondent
GSIS, a government instrumentality deriving its authority from the State.

It should be stressed that while the Malaysian firm offered the higher bid it
is not yet the winning bidder. The bidding rules expressly provide that the
highest bidder shall only be declared the winning bidder after it has
negotiated and executed the necessary contracts, and secured the
requisite approvals. Since the Filipino First Policy provision of the
Constitution bestows preference on qualified Filipinos the mere tending of
the highest bid is not an assurance that the highest bidder will be declared
the winning bidder. Resultantly, respondents are not bound to make the
award yet, nor are they under obligation to enter into one with the highest
bidder. For in choosing the awardee respondents are mandated to abide by
the dictates of the 1987 Constitution the provisions of which are presumed
to be known to all the bidders and other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject

constitutional provision is, as it should be, impliedly written in the bidding
rules issued by respondent GSIS, lest the bidding rules be nullified for
being violative of the Constitution. It is a basic principle in constitutional law
that all laws and contracts must conform with the fundamental law of the
land. Those which violate the Constitution lose their reason for being.

Paragraph V. J. 1 of the bidding rules provides that [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 petitioners
matching bid did the latter have a cause of action.

Besides, there is no time frame for invoking the constitutional safeguard

unless perhaps the award has been finally made. To insist on selling the
Manila Hotel to foreigners when there is a Filipino group willing to match
the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of
judgment, regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus we would rather
remedy the indiscretion while there is still an opportunity to do so than let
the government develop the habit of forgetting that the Constitution lays
down the basic conditions and parameters for its actions.

Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to
execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with
the Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules
after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.

The Filipino First Policy is a product of Philippine nationalism. It is

embodied in the 1987 Constitution not merely to be used as a guideline for
future legislation but primarily to be enforced; so must it be enforced. This
Court as the ultimate guardian of the Constitution will never shun, under
any reasonable circumstance, the duty of upholding the majesty of the
Constitution which it is tasked to defend. It is worth emphasizing that it is
not the intention of this Court to impede and diminish, much less
undermine, the influx of foreign investments. Far from it, the Court
encourages and welcomes more business opportunities but avowedly
sanctions the preference for Filipinos whenever such preference is
ordained by the Constitution. The position of the Court on this matter could
have not been more appropriately articulated by Chief Justice Narvasa -

As scrupulously as it has tried to observe that it is not its function to

substitute its judgment for that of the legislature or the executive about the
wisdom and feasibility of legislation economic in nature, the Supreme Court
has not been spared criticism for decisions perceived as obstacles to
economic progress and development x x x x in connection with a temporary
injunction issued by the Courts 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 laudible, is merely a policy. It cannot override the
demands of nationalism.[50]

The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of
privatization. We are not talking about an ordinary piece of property in a
commercial district. We are talking about a historic relic that has hosted
many of the most important events in the short history of the Philippines as
a nation. We are talking about a hotel where heads of states would prefer
to be housed as a strong manifestation of their desire to cloak the dignity of
the highest state function to their official visits to the Philippines. Thus the
Manila Hotel has played and continues to play a significant role as an
authentic repository of twentieth century Philippine history and culture. In
this sense, it has become truly a reflection of the Filipino soul - a place with
a history of grandeur; a most historical setting that has played a part in the
shaping of a country.[51]

This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark - this Grand Old Dame of hotels
in Asia - to a total stranger. For, indeed, the conveyance of this epic
exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation
of a nations 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 nations 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.

Facts:

The controversy arose when respondent Government Service Insurance

System (GSIS), pursuant to the privatization program of the Philippine
Government, decided to sell through public bidding 30% to 51% of the
issued and outstanding shares of respondent Manila Hotel Corporation
(MHC). The winning bidder, or the eventual strategic partner, will provide
management expertise or an international marketing/reservation system,
and financial support to strengthen the profitability and performance of the
Manila Hotel.

In a close bidding held on 18 September 1995 only two (2) bidders

participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares at
P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-
Sheraton as its hotel operator, which bid for the same number of shares at
P44.00 per share, or P2.42 more than the bid of petitioner. Prior to the
declaration of Renong Berhard as the winning bidder, petitioner Manila
Prince Hotel matched the bid price and sent a managers check as bid
security, which GSIS refused to accept.

Apprehensive that GSIS has disregarded the tender of the matching bid
and that the sale may be consummated with Renong Berhad, petitioner
filed a petition before the Court.
Issues:

Whether or not Sec. 10, second par., Art. XII, of the 1987 Constitution is a
self-executing provision.
Whether or not the Manila Hotel forms part of the national patrimony.
Whether or not the submission of matching bid is premature
Whether or not there was grave abuse of discretion on the part of the
respondents in refusing the matching bid of the petitioner.

Rulings:

In the resolution of the case, the Court held that:

It is a self-executing provision.
Since the Constitution is the fundamental, paramount and supreme law of
the nation, it is deemed written in every statute and contract. 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.
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. 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.
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 in 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.
The Court agree.
In its plain and ordinary meaning, the term patrimony pertains to 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.
It also refers to Filipinos intelligence in arts, sciences and letters. In the
present case, 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, a concourse for the elite, it has since then become the
venue of various significant events which have shaped Philippine history.
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.
It is not premature.
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 the Court is
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.
The 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.
There was grave abuse of discretion.
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 judgement, regardless of the consequences
to the Filipino people. The miscomprehension of the Constitution is
regrettable. Thus, the Court would rather remedy the indiscretion while
there is still an opportunity to do so than let the government develop the
habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to
execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with
the Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules
after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.

Hence, 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.

Article 7, New Civil Code

Art. 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to
the contrary.

CIR v. San Roque Power Corp., G.R. No. 187485, October 8, 2013

G.R. No. 187485 October 8, 2013

COMMISSIONER OF INTERNAL REVENUE, Petitioner,

vs.
SAN ROQUE POWER CORPORATION, Respondent.

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

G.R. No. 196113

TAGANITO MINING CORPORATION, Petitioner,

vs.
COMMISSIONER OF INTERNAL REVENUE, Respondent.

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

G.R. No. 197156

PHILEX MINING CORPORATION, Petitioner,

vs.
COMMISSIONER OF INTERNAL REVENUE, Respondent.

RESOLUTION

CARPIO, J.:

This Resolution resolves the Motion for Reconsideration and the

Supplemental Motion for Reconsideration filed by San Roque Power
Corporation (San Roque) in G.R. No. 187485, the Comment to the Motion
for Reconsideration filed by the Commissioner of Internal Revenue (CIR) in
G.R. No. 187485, the Motion for Reconsideration filed by the CIR in
G.R.No. 196113, and the Comment to the Motion for Reconsideration filed
by Taganito Mining Corporation (Taganito) in G.R. No. 196113.

San Roque prays that the rule established in our 12 February 2013
Decision be given only a prospective effect, arguing that "the manner by
which the Bureau of Internal Revenue (BIR) and the Court of Tax
Appeals(CTA) actually treated the 120 + 30 day periods constitutes an
operative fact the effects and consequences of which cannot be erased or
undone."1

The CIR, on the other hand, asserts that Taganito Mining Corporation's
(Taganito) judicial claim for tax credit or refund was prematurely filed before
the CTA and should be disallowed because BIR Ruling No. DA-489-03 was
issued by a Deputy Commissioner, not by the Commissioner of Internal
Revenue.

We deny both motions.

The Doctrine of Operative Fact

The general rule is that a void law or administrative act cannot be the
source of legal rights or duties. Article 7 of the Civil Code enunciates this
general rule, as well as its exception: "Laws are repealed only by
subsequent ones, and their violation or non-observance shall not be
excused by disuse, or custom or practice to the contrary. When the courts
declared a law to be inconsistent with the Constitution, the former shall be
void and the latter shall govern. Administrative or executive acts, orders
and regulations shall be valid only when they are not contrary to the laws or
the Constitution."

The doctrine of operative fact is an exception to the general rule, such that
a judicial declaration of invalidity may not necessarily obliterate all the
effects and consequences of a void act prior to such declaration.2 In
Serrano de Agbayani v. Philippine National Bank,3 the application of the
doctrine of operative fact was discussed as follows:

The decision now on appeal reflects the orthodox view that an

unconstitutional act, for that matter an executive order or a municipal
ordinance likewise suffering from that infirmity, cannot be the source of any
legal rights or duties. Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially declared results in its
being to all intents and purposes a mere scrap of paper. As the new Civil
Code puts it: "When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws of the Constitution." It is
understandable why it should be so, the Constitution being supreme and
paramount. Any legislative or executive act contrary to its terms cannot
survive.

Such a view has support in logic and possesses the merit of simplicity. It
may not however be sufficiently realistic. It does not admit of doubt that
prior to the declaration of nullity such challenged legislative or executive act
must have been in force and had to be complied with. This is so as until
after the judiciary, in an appropriate case, declares its invalidity, it is entitled
to obedience and respect. Parties may have acted under it and may have
changed their positions. What could be more fitting than that in a
subsequent litigation regard be had to what has been done while such
legislative or executive act was in operation and presumed to be valid in all
respects. It is now accepted as a doctrine that prior to its being nullified, its
existence as a fact must be reckoned with. This is merely to reflect
awareness that precisely because the judiciary is the governmental organ
which has the final say on whether or not a legislative or executive
measure is valid, a period of time may have elapsed before it can exercise
the power of judicial review that may lead to a declaration of nullity. It would
be to deprive the law of its quality of fairness and justice then, if there be no
recognition of what had transpired prior to such adjudication.

In the language of an American Supreme Court decision: "The actual

existence of a statute, prior to such a determination of unconstitutionality, is
an operative fact and may have consequences which cannot justly be
ignored. The past cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects, with respect to particular relations, individual
and corporate, and particular conduct, private and official." This language
has been quoted with approval in a resolution in Araneta v. Hill and the
decision in Manila Motor Co., Inc. v. Flores. An even more recent instance
is the opinion of Justice Zaldivar speaking for the Court in Fernandez v.
Cuerva and Co. (Boldfacing and italicization supplied)
Clearly, for the operative fact doctrine to apply, there must be a "legislative
or executive measure," meaning a law or executive issuance, that is
invalidated by the court. From the passage of such law or promulgation of
such executive issuance until its invalidation by the court, the effects of the
law or executive issuance, when relied upon by the public in good faith,
may have to be recognized as valid. In the present case, however, there is
no such law or executive issuance that has been invalidated by the Court
except BIR Ruling No. DA-489-03.

To justify the application of the doctrine of operative fact as an exemption,

San Roque asserts that "the BIR and the CTA in actual practice did not
observe and did not require refund seekers to comply with the120+30 day
periods."4 This is glaring error because an administrative practice is neither
a law nor an executive issuance. Moreover, in the present case, there is
even no such administrative practice by the BIR as claimed by San Roque.

In BIR Ruling No. DA-489-03 dated 10 December 2003, the Department of

Finances One-Stop Shop Inter-Agency Tax Credit and Duty Drawback
Center (DOF-OSS) asked the BIR to rule on the propriety of the actions
taken by Lazi Bay Resources Development, Inc. (LBRDI). LBRDI filed an
administrative claim for refund for alleged input VAT for the four quarters of
1998. Before the lapse of 120 days from the filing of its administrative
claim, LBRDI also filed a judicial claim with the CTA on 28March 2000 as
well as a supplemental judicial claim on 29 September 2000.In its
Memorandum dated 13 August 2002 before the BIR, the DOF-OSS pointed
out that LBRDI is "not yet on the right forum in violation of the provision of
Section 112(D) of the NIRC" when it sought judicial relief before the CTA.
Section 112(D) provides for the 120+30 day periods for claiming tax
refunds.

The DOF-OSS itself alerted the BIR that LBRDI did not follow the120+30
day periods. In BIR Ruling No. DA-489-03, Deputy Commissioner Jose
Mario C. Buag ruled that "a taxpayer-claimant need not wait for the lapse
of the 120-day period before it could seek judicial relief with the CTA by
way of Petition for Review." Deputy Commissioner Buag, citing the
7February 2002 decision of the Court of Appeals (CA) in Commissioner of
Internal Revenue v. Hitachi Computer Products (Asia) Corporation5
(Hitachi), stated that the claim for refund with the Commissioner could be
pending simultaneously with a suit for refund filed before the CTA.
Before the issuance of BIR Ruling No. DA-489-03 on 10 December 2003,
there was no administrative practice by the BIR that supported
simultaneous filing of claims. Prior to BIR Ruling No. DA-489-03, the BIR
considered the 120+30 day periods mandatory and jurisdictional.

Thus, prior to BIR Ruling No. DA-489-03, the BIRs actual administrative
practice was to contest simultaneous filing of claims at the administrative
and judicial levels, until the CA declared in Hitachi that the BIRs position
was wrong. The CAs Hitachi decision is the basis of BIR Ruling No. DA-
489-03 dated 10 December 2003 allowing simultaneous filing. From then
on taxpayers could rely in good faith on BIR Ruling No. DA-489-03 even
though it was erroneous as this Court subsequently decided in Aichi that
the 120+30 day periods were mandatory and jurisdictional.

We reiterate our pronouncements in our Decision as follows:

At the time San Roque filed its petition for review with the CTA, the 120+30
day mandatory periods were already in the law. Section112(C) expressly
grants the Commissioner 120 days within which to decide the taxpayers
claim. The law is clear, plain, and unequivocal: "x x x the Commissioner
shall grant a refund or issue the tax credit certificate for creditable input
taxes within one hundred twenty (120) days from the date of submission of
complete documents." Following the verbalegis doctrine, this law must be
applied exactly as worded since it is clear, plain, and unequivocal. The
taxpayer cannot simply file a petition with the CTA without waiting for the
Commissioners decision within the 120-daymandatory and jurisdictional
period. The CTA will have no jurisdiction because there will be no
"decision" or "deemed a denial" decision of the Commissioner for the CTA
to review. In San Roques case, it filed its petition with the CTA a mere 13
days after it filed its administrative claim with the Commissioner.
Indisputably, San Roque knowingly violated the mandatory 120-day period,
and it cannot blame anyone but itself.

Section 112(C) also expressly grants the taxpayer a 30-day period to

appeal to the CTA the decision or inaction of the Commissioner x x x.

xxxx

To repeat, a claim for tax refund or credit, like a claim for tax exemption, is
construed strictly against the taxpayer.1wphi1 One of the conditions for a
judicial claim of refund or credit under the VAT System is compliance with
the 120+30 day mandatory and jurisdictional periods. Thus, strict
compliance with the 120+30 day periods is necessary for such a claim to
prosper, whether before, during, or after the effectivity of the Atlas doctrine,
except for the period from the issuance of BIR Ruling No. DA-489-03 on 10
December 2003 to 6 October 2010 when the Aichi doctrine was adopted,
which again reinstated the 120+30 day periods as mandatory and
jurisdictional.6

San Roques argument must, therefore, fail. The doctrine of operative fact
is an argument for the application of equity and fair play. In the present
case, we applied the doctrine of operative fact when we recognized
simultaneous filing during the period between 10 December 2003, when
BIR Ruling No. DA-489-03 was issued, and 6 October 2010, when this
Court promulgated Aichi declaring the 120+30 day periods mandatory and
jurisdictional, thus reversing BIR Ruling No. DA-489-03.

The doctrine of operative fact is in fact incorporated in Section 246 of the

Tax Code, which provides:

SEC. 246. Non-Retroactivity of Rulings. - Any revocation, modification or

reversal of any of the rules and regulations promulgated in accordance with
the preceding Sections or any of the rulings or circulars promulgated by the
Commissioner shall not be given retroactive application if the revocation,
modification or reversal will be prejudicial to the taxpayers, except in the
following cases:

(a) Where the taxpayer deliberately misstates or omits material facts from
his return or any document required of him by the Bureau of Internal
Revenue;

(b) Where the facts subsequently gathered by the Bureau of Internal

Revenue are materially different from the facts on which the ruling is based;
or

(c) Where the taxpayer acted in bad faith. (Emphasis supplied)

Under Section 246, taxpayers may rely upon a rule or ruling issued by the
Commissioner from the time the rule or ruling is issued up to its reversal by
the Commissioner or this Court. The reversal is not given retroactive effect.
This, in essence, is the doctrine of operative fact. There must, however, be
a rule or ruling issued by the Commissioner that is relied upon by the
taxpayer in good faith. A mere administrative practice, not formalized into a
rule or ruling, will not suffice because such a mere administrative practice
may not be uniformly and consistently applied. An administrative practice, if
not formalized as a rule or ruling, will not be known to the general public
and can be availed of only by those within formal contacts with the
government agency.

Since the law has already prescribed in Section 246 of the Tax Code how
the doctrine of operative fact should be applied, there can be no invocation
of the doctrine of operative fact other than what the law has specifically
provided in Section 246. In the present case, the rule or ruling subject of
the operative fact doctrine is BIR Ruling No. DA-489-03 dated 10
December 2003. Prior to this date, there is no such rule or ruling calling for
the application of the operative fact doctrine in Section 246. Section246,
being an exemption to statutory taxation, must be applied strictly against
the taxpayer claiming such exemption.

San Roque insists that this Court should not decide the present case in
violation of the rulings of the CTA; otherwise, there will be adverse effects
on the national economy. In effect, San Roques doomsday scenario is a
protest against this Courts power of appellate review. San Roque cites
cases decided by the CTA to underscore that the CTA did not treat the
120+30 day periods as mandatory and jurisdictional. However, CTA or CA
rulings are not the executive issuances covered by Section 246 of the Tax
Code, which adopts the operative fact doctrine. CTA or CA decisions are
specific rulings applicable only to the parties to the case and not to the
general public. CTA or CA decisions, unlike those of this Court, do not form
part of the law of the land. Decisions of lower courts do not have any value
as precedents. Obviously, decisions of lower courts are not binding on this
Court. To hold that CTA or CA decisions, even if reversed by this Court,
should still prevail is to turn upside down our legal system and hierarchy of
courts, with adverse effects far worse than the dubious doomsday scenario
San Roque has conjured.

San Roque cited cases7 in its Supplemental Motion for Reconsideration to

support its position that retroactive application of the doctrine in the present
case will violate San Roques right to equal protection of the law. However,
San Roque itself admits that the cited cases never mentioned the issue of
premature or simultaneous filing, nor of compliance with the 120+30 day
period requirement. We reiterate that "any issue, whether raised or not by
the parties, but not passed upon by the Court, does not have any value as
precedent."8 Therefore, the cases cited by San Roque to bolster its claim
against the application of the 120+30 day period requirement do not have
any value as precedents in the present case.

Authority of the Commissioner

to Delegate Power

In asking this Court to disallow Taganitos claim for tax refund or credit, the
CIR repudiates the validity of the issuance of its own BIR Ruling No. DA-
489-03. "Taganito cannot rely on the pronouncements in BIR Ruling No.
DA-489-03, being a mere issuance of a Deputy Commissioner."9

Although Section 4 of the 1997 Tax Code provides that the "power to
interpret the provisions of this Code and other tax laws shall be under the
exclusive and original jurisdiction of the Commissioner, subject to review by
the Secretary of Finance," Section 7 of the same Code does not prohibit
the delegation of such power. Thus, "the Commissioner may delegate the
powers vested in him under the pertinent provisions of this Code to any or
such subordinate officials with the rank equivalent to a division chief or
higher, subject to such limitations and restrictions as may be imposed
under rules and regulations to be promulgated by the Secretary of Finance,
upon recommendation of the Commissioner."

WHEREFORE, we DENY with FINALITY the Motions for Reconsideration

filed by San Roque Power Corporation in G.R. No. 187485,and the
Commissioner of Internal Revenue in G.R. No. 196113.

SO ORDERED.

FACTS:
On October 11, 1997, [San Roque] entered into a Power Purchase
Agreement("PPA") with the National Power Corporation ("NPC") to develop
hydro-potential ofthe Lower Agno River and generate additional power and
energy for the LuzonPower Grid, by building the San Roque Multi-Purpose Project
located in SanManuel, Pangasinan. The PPA provides, among others, that [San
Roque] shall beresponsible for the design, construction, installation, completion,
testing andcommissioning of the Power Station and shall operate and maintain
the same,subject to NPC instructions. During the cooperation period of twenty-
five (25) yearscommencing from the completion date of the Power Station,
NPC will take and payfor all electricity available from the Power Station.[San
Roque] allegedly incurred, excess
input VAT in the amount of 559,709,337.54
for taxable year 2001 which it declared in its Quarterly VAT Returns filed for
thesame year. [San Roque] duly filed with the BIR separate claims for refund, in
the
total amount of 559,709,337.54, representing un
utilized input taxes as declared inits VAT returns for taxable year 2001.On March
28, 2003, [San Roque] filed amended Quarterly VAT Returns for the year
2001 since it increased its unutilized input VAT to the amount of 560,200,283.14.
Consequently, [San Roque] filed with the BIR on even date, separate
amendedclaims for refund.
[CIRs] inaction on the subject claims led to the filing by [San Roque] of the
Petition
for Review with the Court [of Tax Appeals] in Division on April 10, 2003.CTA in
division and CTA En banc gave due course to the claim of San Roque.

ISSUE:
Whether or not San Roques claim for refund was prematurely filed.
(Application of 120+30 days period. Take note: amended claims for refund
filesMarch 28, 2003 while petition for review to the CTA filed on April 10,
2003, barely just 13 days)
HELD:YES. It was premature.
(Relevant provisions in the case at bar)Sec. 112.
Refunds or Tax Credits of Input Tax
.

(A)
Zero-Rated or Effectively Zero-Rated Sales
.

Any VAT-registeredperson, whose sales are zero-rated or effectively zero-rated

may, withintwo (2) years after the close of the taxable quarter when the sales
weremade, apply for the issuance of a tax credit certificate or refund ofcreditable
input tax due or paid attributable to such sales

(D)
Period within which Refund or Tax Credit of Input Taxes shall be Made
.

In proper cases, the Commissioner shall grant a refund or issue the taxcredit
certificate for creditable input taxes
within one hundred twenty(120) days from the date of submission of complete
documents
insupport of the application filed in accordance with Subsection (A) and
(B)hereof.In case of full or partial denial of the claim for tax refund or tax credit,
orthe failure on the part of the Commissioner to act on the applicationwithin the
period prescribed above, the taxpayer affected may,
withinthirty (30) days from the receipt of the decision denying the claim orafter
the expiration of the one hundred twenty day-period
, appeal thedecision or the unacted claim with the Court of Tax Appeals.On 10
April 2003, a mere 13 days after it filed its amended administrative claimwith the
Commissioner on 28 March 2003, San Roque filed a Petition for Reviewwith the
CTA docketed as CTA Case No. 6647. From this we gather two crucial facts:
first
, San Roque did not wait for the 120-day period to lapse before filing its
judicialclaim;
second
, San Roque filed its judicial claim more than four (4) years
before
the
Atlas
45
doctrine, which was promulgated by the Court on 8 June 2007.Clearly, San Roque
failed to comply with the 120-day waiting period, the timeexpressly given by law
to the Commissioner to decide whether to grant or deny San
Roques application for tax refund or credit. It is indisputable that compliance
with
the 120-day waiting period is
mandatory and jurisdictional
.

Foreign Jurisprudence and Constitutional Law

Francisco, Jr. v. The House of Representatives, G.R. No. 160261,
November 10, 2003

G.R. No. 160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA
MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS,
petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC.,
petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER
JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE
PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C.
TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA

RAZON-ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA,
petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC.,
petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC.,
petitioners-in-intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT,
AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF
THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC.,
petitioner-in-intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE
HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS
CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF
THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM
FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-
LOKIN, MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS,
DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR.,
NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL
MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA
CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR.,
GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL
ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-
ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-
DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO,
ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON,
JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES,
AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR.,
FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR.,
JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN,
PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI
LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS
ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO
BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH
SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ,
RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT
REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI,
BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO
MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA
NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY
ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160292 November 10, 2003

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA

PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C.
LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC.,
petitioner-in-intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P.
NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE
HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M.

GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC.,
petitioner-in-intervention,

vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN

MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO
MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO
GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA,
GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR.,
RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN,
MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P.
GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER
CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE,
WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO
BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA,
SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO
LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA,
JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU
RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR,
petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC.,
petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON.
SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED
BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX
FUENTEBELLA, ET AL., respondents.

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

G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,

vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF
REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M.
DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.

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

G.R. No. 160342 November 10, 2003

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF

THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR.
MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND
MEMBER OF THE ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83
HONORABLE MEMBERS OF THE HOUSE LED BY HON.
REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.

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

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents.

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

G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND
THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE
PRESIDENT, respondents.

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

G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C.

PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA
D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P.
NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B.
CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR
THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE
REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE
VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT
FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX
FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS
REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE
REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT
COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G.
DAVIDE, JR. respondents.

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

G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner,

vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE
SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents.

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

G.R. No. 160376 November 10, 2003

NILO A. MALANYAON, petitioner,

vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN
REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF
IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR.
AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.

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

G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G.
DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH
SENATE PRESIDENT FRANKLIN DRILON, respondents.

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

G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF

JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS,
JR., petitioner.

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

G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH
SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.

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

G.R. No. 160405 November 10, 2003

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY

CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU
PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER,
ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY
OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC],
REPRSEENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF
ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC],
REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ,
FEDERACION INTERNACIONAL DE ABOGADAS [FIDA],
REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT
OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU
LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE
NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU
CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE
PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE
G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE,
REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE
PRESIDENT, respondents.

CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how

passionate and seemingly irreconcilable it may appear to be, over the
determination by the independent branches of government of the nature,
scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.

Our nation's history is replete with vivid illustrations of the often frictional, at
times turbulent, dynamics of the relationship among these co-equal
branches. This Court is confronted with one such today involving the
legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous
sentiments thereon.

There may indeed be some legitimacy to the characterization that the

present controversy subject of the instant petitions whether the filing of
the second impeachment complaint against Chief Justice Hilario G. Davide,
Jr. with the House of Representatives falls within the one year bar provided
in the Constitution, and whether the resolution thereof is a political question
has resulted in a political crisis. Perhaps even more truth to the view that
it was brought upon by a political crisis of conscience.

In any event, it is with the absolute certainty that our Constitution is

sufficient to address all the issues which this controversy spawns that this
Court unequivocally pronounces, at the first instance, that the feared resort
to extra-constitutional methods of resolving it is neither necessary nor
legally permissible. Both its resolution and protection of the public interest
lie in adherence to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court
is ever mindful of the essential truth that the inviolate doctrine of separation
of powers among the legislative, executive or judicial branches of
government by no means prescribes for absolute autonomy in the
discharge by each of that part of the governmental power assigned to it by
the sovereign people.

At the same time, the corollary doctrine of checks and balances which has
been carefully calibrated by the Constitution to temper the official acts of
each of these three branches must be given effect without destroying their
indispensable co-equality.

Taken together, these two fundamental doctrines of republican

government, intended as they are to insure that governmental power is
wielded only for the good of the people, mandate a relationship of
interdependence and coordination among these branches where the
delicate functions of enacting, interpreting and enforcing laws are
harmonized to achieve a unity of governance, guided only by what is in the
greater interest and well-being of the people. Verily, salus populi est
suprema lex.

Article XI of our present 1987 Constitution provides:

ARTICLE XI

Accountability of Public Officers

SECTION 1. Public office is a public trust. Public officers and employees

must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.

SECTION 2. The President, the Vice-President, the Members of the

Supreme Court, the Members of the Constitutional Commissions, and the
Ombudsman may be removed from office, on impeachment for, and
conviction of, culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law,
but not by impeachment.

SECTION 3. (1) The House of Representatives shall have the exclusive

power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of

the House of Representatives or by any citizen upon a resolution of
endorsement by any Member thereof, which shall be included in the Order
of Business within ten session days, and referred to the proper Committee
within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be
necessary either to affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution. The
vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at

least one-third of all the Members of the House, the same shall constitute
the Articles of Impeachment, and trial by the Senate shall forthwith
proceed.

(5) No impeachment proceedings shall be initiated against the same official

more than once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath
or affirmation. When the President of the Philippines is on trial, the Chief
Justice of the Supreme Court shall preside, but shall not vote. No person
shall be convicted without the concurrence of two-thirds of all the Members
of the Senate.

(7) Judgment in cases of impeachment shall not extend further than

removal from office and disqualification to hold any office under the
Republic of the Philippines, but the party convicted shall nevertheless be
liable and subject to prosecution, trial, and punishment according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively

carry out the purpose of this section. (Emphasis and underscoring
supplied)

Following the above-quoted Section 8 of Article XI of the Constitution, the

12th Congress of the House of Representatives adopted and approved the
Rules of Procedure in Impeachment Proceedings (House Impeachment
Rules) on November 28, 2001, superseding the previous House
Impeachment Rules1 approved by the 11th Congress. The relevant
distinctions between these two Congresses' House Impeachment Rules
are shown in the following tabulation:

11TH CONGRESS RULES

12TH CONGRESS NEW RULES

RULE II

INITIATING IMPEACHMENT

Section 2. Mode of Initiating Impeachment. Impeachment shall be

initiated only by a verified complaint for impeachment filed by any Member
of the House of Representatives or by any citizen upon a resolution of
endorsement by any Member thereof or by a verified complaint or
resolution of impeachment filed by at least one-third (1/3) of all the
Members of the House.

RULE V

BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS

AGAINST THE SAME OFFICIAL

Section 16. Impeachment Proceedings Deemed Initiated. In cases

where a Member of the House files a verified complaint of impeachment or
a citizen files a verified complaint that is endorsed by a Member of the
House through a resolution of endorsement against an impeachable officer,
impeachment proceedings against such official are deemed initiated on the
day the Committee on Justice finds that the verified complaint and/or
resolution against such official, as the case may be, is sufficient in
substance, or on the date the House votes to overturn or affirm the finding
of the said Committee that the verified complaint and/or resolution, as the
case may be, is not sufficient in substance.

In cases where a verified complaint or a resolution of impeachment is filed

or endorsed, as the case may be, by at least one-third (1/3) of the
Members of the House, impeachment proceedings are deemed initiated at
the time of the filing of such verified complaint or resolution of impeachment
with the Secretary General.

RULE V

BAR AGAINST IMPEACHMENT

Section 14. Scope of Bar. No impeachment proceedings shall be initiated

against the same official more than once within the period of one (1) year.

Section 17. Bar Against Initiation Of Impeachment Proceedings. Within a

period of one (1) year from the date impeachment proceedings are deemed
initiated as provided in Section 16 hereof, no impeachment proceedings, as
such, can be initiated against the same official. (Italics in the original;
emphasis and underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,2

sponsored by Representative Felix William D. Fuentebella, which directed
the Committee on Justice "to conduct an investigation, in aid of legislation,
on the manner of disbursements and expenditures by the Chief Justice of
the Supreme Court of the Judiciary Development Fund (JDF)."3

On June 2, 2003, former President Joseph E. Estrada filed an

impeachment complaint4 (first impeachment complaint) against Chief
Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court for
"culpable violation of the Constitution, betrayal of the public trust and other
high crimes."6 The complaint was endorsed by Representatives Rolex T.
Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen,7 and was
referred to the House Committee on Justice on August 5, 20038 in
accordance with Section 3(2) of Article XI of the Constitution which reads:

Section 3(2) A verified complaint for impeachment may be filed by any

Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be included
in the Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to
the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt thereof.

The House Committee on Justice ruled on October 13, 2003 that the first
impeachment complaint was "sufficient in form,"9 but voted to dismiss the
same on October 22, 2003 for being insufficient in substance.10 To date,
the Committee Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI of the
Constitution.

Four months and three weeks since the filing on June 2, 2003 of the first
complaint or on October 23, 2003, a day after the House Committee on
Justice voted to dismiss it, the second impeachment complaint11 was filed
with the Secretary General of the House12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third
District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr.,
founded on the alleged results of the legislative inquiry initiated by above-
mentioned House Resolution. This second impeachment complaint was
accompanied by a "Resolution of Endorsement/Impeachment" signed by at
least one-third (1/3) of all the Members of the House of Representatives.13

Thus arose the instant petitions against the House of Representatives, et.
al., most of which petitions contend that the filing of the second
impeachment complaint is unconstitutional as it violates the provision of
Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once
within a period of one year."

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that
he has a duty as a member of the Integrated Bar of the Philippines to use
all available legal remedies to stop an unconstitutional impeachment, that
the issues raised in his petition for Certiorari, Prohibition and Mandamus
are of transcendental importance, and that he "himself was a victim of the
capricious and arbitrary changes in the Rules of Procedure in Impeachment
Proceedings introduced by the 12th Congress,"14 posits that his right to
bring an impeachment complaint against then Ombudsman Aniano
Desierto had been violated due to the capricious and arbitrary changes in
the House Impeachment Rules adopted and approved on November 28,
2001 by the House of Representatives and prays that (1) Rule V, Sections
16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared
unconstitutional; (2) this Court issue a writ of mandamus directing
respondents House of Representatives et. al. to comply with Article IX,
Section 3 (2), (3) and (5) of the Constitution, to return the second
impeachment complaint and/or strike it off the records of the House of
Representatives, and to promulgate rules which are consistent with the
Constitution; and (3) this Court permanently enjoin respondent House of
Representatives from proceeding with the second impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens

and taxpayers, alleging that the issues of the case are of transcendental
importance, pray, in their petition for Certiorari/Prohibition, the issuance of
a writ "perpetually" prohibiting respondent House of Representatives from
filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting respondents
Senate and Senate President Franklin Drilon from accepting any Articles of
Impeachment against the Chief Justice or, in the event that the Senate has
accepted the same, from proceeding with the impeachment trial.

In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad

Cagampang, as citizens, taxpayers, lawyers and members of the
Integrated Bar of the Philippines, alleging that their petition for Prohibition
involves public interest as it involves the use of public funds necessary to
conduct the impeachment trial on the second impeachment complaint, pray
for the issuance of a writ of prohibition enjoining Congress from conducting
further proceedings on said second impeachment complaint.

In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court
has recognized that he has locus standi to bring petitions of this nature in
the cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay
Development Corporation,16 prays in his petition for Injunction that the
second impeachment complaint be declared unconstitutional.

In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers
and members of the legal profession, pray in their petition for Prohibition for
an order prohibiting respondent House of Representatives from drafting,
adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from
transmitting the Articles of Impeachment to the Senate.

In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and

Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House
of Representatives, they have a legal interest in ensuring that only
constitutional impeachment proceedings are initiated, pray in their petition
for Certiorari/Prohibition that the second impeachment complaint and any
act proceeding therefrom be declared null and void.

In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they
have a right to be protected against all forms of senseless spending of
taxpayers' money and that they have an obligation to protect the Supreme
Court, the Chief Justice, and the integrity of the Judiciary, allege in their
petition for Certiorari and Prohibition that it is instituted as "a class suit" and
pray that (1) the House Resolution endorsing the second impeachment
complaint as well as all issuances emanating therefrom be declared null
and void; and (2) this Court enjoin the Senate and the Senate President
from taking cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition commanding the
Senate, its prosecutors and agents to desist from conducting any
proceedings or to act on the impeachment complaint.

In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members
are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen,
taxpayer and a member of the Philippine Bar, both allege in their petition,
which does not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest and pray that
Sections 16 and 17 of the House Impeachment Rules and the second
impeachment complaint/Articles of Impeachment be declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and

a member of the Philippine Bar Association and of the Integrated Bar of the
Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray
in their petition for the issuance of a Temporary Restraining Order and
Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging

that it is mandated by the Code of Professional Responsibility to uphold the
Constitution, prays in its petition for Certiorari and Prohibition that Sections
16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second
impeachment complaint.

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his

petition for Certiorari and Prohibition that the House Impeachment Rules be
declared unconstitutional.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et.
al., in their petition for Prohibition and Injunction which they claim is a class
suit filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed
in behalf of succeeding generations of Filipinos, pray for the issuance of a
writ prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and
that this Court declare as unconstitutional the second impeachment
complaint and the acts of respondent House of Representatives in
interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino,
alleging that the issues in his petition for Prohibition are of national and
transcendental significance and that as an official of the Philippine Judicial
Academy, he has a direct and substantial interest in the unhampered
operation of the Supreme Court and its officials in discharging their duties
in accordance with the Constitution, prays for the issuance of a writ
prohibiting the House of Representatives from transmitting the Articles of
Impeachment to the Senate and the Senate from receiving the same or
giving the impeachment complaint due course.

In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in

his petition for Prohibition that respondents Fuentebella and Teodoro at the
time they filed the second impeachment complaint, were "absolutely
without any legal power to do so, as they acted without jurisdiction as far as
the Articles of Impeachment assail the alleged abuse of powers of the Chief
Justice to disburse the (JDF)."

In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L.

Hofilea, alleging that as professors of law they have an abiding interest in
the subject matter of their petition for Certiorari and Prohibition as it
pertains to a constitutional issue "which they are trying to inculcate in the
minds of their students," pray that the House of Representatives be
enjoined from endorsing and the Senate from trying the Articles of
Impeachment and that the second impeachment complaint be declared null
and void.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging
his locus standi, but alleging that the second impeachment complaint is
founded on the issue of whether or not the Judicial Development Fund
(JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination
and audit thereof, prays in his petition "To Declare Complaint Null and Void
for Lack of Cause of Action and Jurisdiction" that the second impeachment
complaint be declared null and void.

In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the
issues raised in the filing of the second impeachment complaint involve
matters of transcendental importance, prays in its petition for
Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent
House of Representatives be prohibited from transmitting the Articles of
Impeachment to the Senate; and (3) respondent Senate be prohibited from
accepting the Articles of Impeachment and from conducting any
proceedings thereon.

In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens

and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the
second impeachment complaint as well as the resolution of endorsement
and impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate President
Franklin Drilon be prohibited from accepting any Articles of Impeachment
against the Chief Justice or, in the event that they have accepted the same,
that they be prohibited from proceeding with the impeachment trial.

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263,
the first three of the eighteen which were filed before this Court,18 prayed
for the issuance of a Temporary Restraining Order and/or preliminary
injunction to prevent the House of Representatives from transmitting the
Articles of Impeachment arising from the second impeachment complaint to
the Senate. Petition bearing docket number G.R. No. 160261 likewise
prayed for the declaration of the November 28, 2001 House Impeachment
Rules as null and void for being unconstitutional.

Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295,
which were filed on October 28, 2003, sought similar relief. In addition,
petition bearing docket number G.R. No. 160292 alleged that House
Resolution No. 260 (calling for a legislative inquiry into the administration
by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle
of fiscal autonomy of the judiciary.

On October 28, 2003, during the plenary session of the House of

Representatives, a motion was put forth that the second impeachment
complaint be formally transmitted to the Senate, but it was not carried
because the House of Representatives adjourned for lack of quorum,19
and as reflected above, to date, the Articles of Impeachment have yet to be
forwarded to the Senate.

Before acting on the petitions with prayers for temporary restraining order
and/or writ of preliminary injunction which were filed on or before October
28, 2003, Justices Puno and Vitug offered to recuse themselves, but the
Court rejected their offer. Justice Panganiban inhibited himself, but the
Court directed him to participate.

Without necessarily giving the petitions due course, this Court in its
Resolution of October 28, 2003, resolved to (a) consolidate the petitions;
(b) require respondent House of Representatives and the Senate, as well
as the Solicitor General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral arguments on
November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal
experts as amici curiae.20 In addition, this Court called on petitioners and
respondents to maintain the status quo, enjoining all the parties and others
acting for and in their behalf to refrain from committing acts that would
render the petitions moot.

Also on October 28, 2003, when respondent House of Representatives

through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way
of special appearance, submitted a Manifestation asserting that this Court
has no jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal branch of
government under the Constitution, from the performance of its
constitutionally mandated duty to initiate impeachment cases. On even
date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to
Intervene (Ex Abudante Cautela)21 and Comment, praying that "the
consolidated petitions be dismissed for lack of jurisdiction of the Court over
the issues affecting the impeachment proceedings and that the sole power,
authority and jurisdiction of the Senate as the impeachment court to try and
decide impeachment cases, including the one where the Chief Justice is
the respondent, be recognized and upheld pursuant to the provisions of
Article XI of the Constitution."22

Acting on the other petitions which were subsequently filed, this Court
resolved to (a) consolidate them with the earlier consolidated petitions; (b)
require respondents to file their comment not later than 4:30 p.m. of
November 3, 2003; and (c) include them for oral arguments on November
5, 2003.

On October 29, 2003, the Senate of the Philippines, through Senate

President Franklin M. Drilon, filed a Manifestation stating that insofar as it is
concerned, the petitions are plainly premature and have no basis in law or
in fact, adding that as of the time of the filing of the petitions, no justiciable
issue was presented before it since (1) its constitutional duty to constitute
itself as an impeachment court commences only upon its receipt of the
Articles of Impeachment, which it had not, and (2) the principal issues
raised by the petitions pertain exclusively to the proceedings in the House
of Representatives.

On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and
160295, questioning the status quo Resolution issued by this Court on
October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a "constitutional deadlock" and praying for the dismissal of
all the petitions as the matter in question is not yet ripe for judicial
determination.

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino

Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene
and to Admit the Herein Incorporated Petition in Intervention."

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga

Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No.
160261. On November 5, 2003, World War II Veterans Legionnaires of the
Philippines, Inc. also filed a "Petition-in-Intervention with Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292,
160295, and 160310.

The motions for intervention were granted and both Senator Pimentel's
Comment and Attorneys Macalintal and Quadra's Petition in Intervention
were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and
the arguments of petitioners, intervenors Senator Pimentel and Attorney
Makalintal, and Solicitor General Alfredo Benipayo on the principal issues
outlined in an Advisory issued by this Court on November 3, 2003, to wit:

Whether the certiorari jurisdiction of the Supreme Court may be invoked;

who can invoke it; on what issues and at what time; and whether it should
be exercised by this Court at this time.
In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);

c) political question/justiciability;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section

3(5) of Article XI of the Constitution; and

g) judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues

arising from the instant petitions as well as the myriad arguments and
opinions presented for and against the grant of the reliefs prayed for, this
Court has sifted and determined them to be as follows: (1) the threshold
and novel issue of whether or not the power of judicial review extends to
those arising from impeachment proceedings; (2) whether or not the
essential pre-requisites for the exercise of the power of judicial review have
been fulfilled; and (3) the substantive issues yet remaining. These matters
shall now be discussed in seriatim.

Judicial Review

As reflected above, petitioners plead for this Court to exercise the power of
judicial review to determine the validity of the second impeachment
complaint.

This Court's power of judicial review is conferred on the judicial branch of

the government in Section 1, Article VIII of our present 1987 Constitution:

SECTION 1. The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government. (Emphasis supplied)

Such power of judicial review was early on exhaustively expounded upon

by Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral
Commission23 after the effectivity of the 1935 Constitution whose
provisions, unlike the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial power includes.
Thus, Justice Laurel discoursed:

x x x In times of social disquietude or political excitement, the great

landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the
integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection

and perfectibility, but as much as it was within the power of our people,
acting through their delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to specific
limitations and restrictions provided in the said instrument. The Constitution
sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided
for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere
verbiage, the bill of rights mere expressions of sentiment, and the principles
of good government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any
living constitution. In the United States where no express constitutional
grant is found in their constitution, the possession of this moderating power
of the courts, not to speak of its historical origin and development there,
has been set at rest by popular acquiescence for a period of more than one
and a half centuries. In our case, this moderating power is granted, if not
expressly, by clear implication from section 2 of article VIII of our
Constitution.

The Constitution is a definition of the powers of government. Who is to

determine the nature, scope and extent of such powers? The Constitution
itself has provided for the instrumentality of the judiciary as the rational
way. And when the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the power
of judicial review under the Constitution. Even then, this power of judicial
review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Narrowed as its function is in
this manner, the judiciary does not pass upon questions of wisdom, justice
or expediency of legislation. More than that, courts accord the presumption
of constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect
the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the
government.24 (Italics in the original; emphasis and underscoring supplied)

As pointed out by Justice Laurel, this "moderating power" to "determine the

proper allocation of powers" of the different branches of government and
"to direct the course of government along constitutional channels" is
inherent in all courts25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual controversies
involving rights which are legally demandable and enforceable."26

Thus, even in the United States where the power of judicial review is not
explicitly conferred upon the courts by its Constitution, such power has
"been set at rest by popular acquiescence for a period of more than one
and a half centuries." To be sure, it was in the 1803 leading case of
Marbury v. Madison27 that the power of judicial review was first articulated
by Chief Justice Marshall, to wit:

It is also not entirely unworthy of observation, that in declaring what shall

be the supreme law of the land, the constitution itself is first mentioned; and
not the laws of the United States generally, but those only which shall be
made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States

confirms and strengthens the principle, supposed to be essential to all
written constitutions, that a law repugnant to the constitution is void; and
that courts, as well as other departments, are bound by that instrument.28
(Italics in the original; emphasis supplied)

In our own jurisdiction, as early as 1902, decades before its express grant
in the 1935 Constitution, the power of judicial review was exercised by our
courts to invalidate constitutionally infirm acts.29 And as pointed out by
noted political law professor and former Supreme Court Justice Vicente V.
Mendoza,30 the executive and legislative branches of our government in
fact effectively acknowledged this power of judicial review in Article 7 of the
Civil Code, to wit:

Article 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to
the contrary.

When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only

when they are not contrary to the laws or the Constitution. (Emphasis
supplied)

As indicated in Angara v. Electoral Commission,31 judicial review is indeed

an integral component of the delicate system of checks and balances
which, together with the corollary principle of separation of powers, forms
the bedrock of our republican form of government and insures that its vast
powers are utilized only for the benefit of the people for which it serves.

The separation of powers is a fundamental principle in our system of

government. It obtains not through express provision but by actual division
in our Constitution. Each department of the government has exclusive
cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be
kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution
has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government.
x x x And the judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of its power to
determine the law, and hence to declare executive and legislative acts void
if violative of the Constitution.32 (Emphasis and underscoring supplied)

In the scholarly estimation of former Supreme Court Justice Florentino

Feliciano, "x x x judicial review is essential for the maintenance and
enforcement of the separation of powers and the balancing of powers
among the three great departments of government through the definition
and maintenance of the boundaries of authority and control between
them."33 To him, "[j]udicial review is the chief, indeed the only, medium of
participation or instrument of intervention of the judiciary in that
balancing operation."34

To ensure the potency of the power of judicial review to curb grave abuse
of discretion by "any branch or instrumentalities of government," the afore-
quoted Section 1, Article VIII of the Constitution engraves, for the first time
into its history, into block letter law the so-called "expanded certiorari
jurisdiction" of this Court, the nature of and rationale for which are mirrored
in the following excerpt from the sponsorship speech of its proponent,
former Chief Justice Constitutional Commissioner Roberto Concepcion:

xxx

The first section starts with a sentence copied from former Constitutions. It
says:

The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and
explain.

Judicial power includes the duty of courts of justice to settle actual

controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part or
instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our

experience during martial law. As a matter of fact, it has some antecedents
in the past, but the role of the judiciary during the deposed regime was
marred considerably by the circumstance that in a number of cases against
the government, which then had no legal defense at all, the solicitor
general set up the defense of political questions and got away with it. As a
consequence, certain principles concerning particularly the writ of habeas
corpus, that is, the authority of courts to order the release of political
detainees, and other matters related to the operation and effect of martial
law failed because the government set up the defense of political question.
And the Supreme Court said: "Well, since it is political, we have no
authority to pass upon it." The Committee on the Judiciary feels that this
was not a proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime. x x x

xxx

Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other
words, the judiciary is the final arbiter on the question whether or not a
branch of government or any of its officials has acted without jurisdiction or
in excess of jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of jurisdiction. This is
not only a judicial power but a duty to pass judgment on matters of this
nature.

This is the background of paragraph 2 of Section 1, which means that the

courts cannot hereafter evade the duty to settle matters of this nature, by
claiming that such matters constitute a political question.35 (Italics in the
original; emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this
Court must necessarily turn to the Constitution itself which employs the
well-settled principles of constitutional construction.

First, verba legis, that is, wherever possible, the words used in the
Constitution must be given their ordinary meaning except where technical
terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure
Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:

We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we begin. It is
to be assumed that the words in which constitutional provisions are
couched express the objective sought to be attained. They are to be given
their ordinary meaning except where technical terms are employed in which
case the significance thus attached to them prevails. As the Constitution is
not primarily a lawyer's document, it being essential for the rule of law to
obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they
have in common use. What it says according to the text of the provision to
be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what
they say. Thus these are the cases where the need for construction is
reduced to a minimum.37 (Emphasis and underscoring supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the
Constitution should be interpreted in accordance with the intent of its
framers. And so did this Court apply this principle in Civil Liberties Union v.
Executive Secretary38 in this wise:

A foolproof yardstick in constitutional construction is the intention

underlying the provision under consideration. Thus, it has been held that
the Court in construing a Constitution should bear in mind the object sought
to be accomplished by its adoption, and the evils, if any, sought to be
prevented or remedied. A doubtful provision will be examined in the light of
the history of the times, and the condition and circumstances under which
the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and
the purpose sought to be accomplished thereby, in order to construe the
whole as to make the words consonant to that reason and calculated to
effect that purpose.39 (Emphasis and underscoring supplied)

As it did in Nitafan v. Commissioner on Internal Revenue40 where,

speaking through Madame Justice Amuerfina A. Melencio-Herrera, it
declared:

x x x The ascertainment of that intent is but in keeping with the fundamental

principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The
primary task in constitutional construction is to ascertain and thereafter
assure the realization of the purpose of the framers and of the people in the
adoption of the Constitution. It may also be safely assumed that the people
in ratifying the Constitution were guided mainly by the explanation offered
by the framers.41 (Emphasis and underscoring supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted

as a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief
Justice Manuel Moran declared:

x x x [T]he members of the Constitutional Convention could not have

dedicated a provision of our Constitution merely for the benefit of one
person without considering that it could also affect others. When they
adopted subsection 2, they permitted, if not willed, that said provision
should function to the full extent of its substance and its terms, not by itself
alone, but in conjunction with all other provisions of that great document.43
(Emphasis and underscoring supplied)

Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court

affirmed that:

It is a well-established rule in constitutional construction that no one

provision of the Constitution is to be separated from all the others, to be
considered alone, but that all the provisions bearing upon a particular
subject are to be brought into view and to be so interpreted as to effectuate
the great purposes of the instrument. Sections bearing on a particular
subject should be considered and interpreted together as to effectuate the
whole purpose of the Constitution and one section is not to be allowed to
defeat another, if by any reasonable construction, the two can be made to
stand together.
In other words, the court must harmonize them, if practicable, and must
lean in favor of a construction which will render every word operative,
rather than one which may make the words idle and nugatory.45
(Emphasis supplied)

If, however, the plain meaning of the word is not found to be clear, resort to
other aids is available. In still the same case of Civil Liberties Union v.
Executive Secretary, this Court expounded:

While it is permissible in this jurisdiction to consult the debates and

proceedings of the constitutional convention in order to arrive at the reason
and purpose of the resulting Constitution, resort thereto may be had only
when other guides fail as said proceedings are powerless to vary the terms
of the Constitution when the meaning is clear. Debates in the constitutional
convention "are of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give us no light as to
the views of the large majority who did not talk, much less of the mass of
our fellow citizens whose votes at the polls gave that instrument the force
of fundamental law. We think it safer to construe the constitution from what
appears upon its face." The proper interpretation therefore depends more
on how it was understood by the people adopting it than in the framers's
understanding thereof.46 (Emphasis and underscoring supplied)

It is in the context of the foregoing backdrop of constitutional refinement

and jurisprudential application of the power of judicial review that
respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel
raise the novel argument that the Constitution has excluded impeachment
proceedings from the coverage of judicial review.

Briefly stated, it is the position of respondents Speaker De Venecia et. al.

that impeachment is a political action which cannot assume a judicial
character. Hence, any question, issue or incident arising at any stage of the
impeachment proceeding is beyond the reach of judicial review.47

For his part, intervenor Senator Pimentel contends that the Senate's "sole
power to try" impeachment cases48 (1) entirely excludes the application of
judicial review over it; and (2) necessarily includes the Senate's power to
determine constitutional questions relative to impeachment proceedings.49

In furthering their arguments on the proposition that impeachment

proceedings are outside the scope of judicial review, respondents Speaker
De Venecia, et. al. and intervenor Senator Pimentel rely heavily on
American authorities, principally the majority opinion in the case of Nixon v.
United States.50 Thus, they contend that the exercise of judicial review
over impeachment proceedings is inappropriate since it runs counter to the
framers' decision to allocate to different fora the powers to try
impeachments and to try crimes; it disturbs the system of checks and
balances, under which impeachment is the only legislative check on the
judiciary; and it would create a lack of finality and difficulty in fashioning
relief.51 Respondents likewise point to deliberations on the US Constitution
to show the intent to isolate judicial power of review in cases of
impeachment.

Respondents' and intervenors' reliance upon American jurisprudence, the

American Constitution and American authorities cannot be credited to
support the proposition that the Senate's "sole power to try and decide
impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all
issues pertaining to impeachment to the legislature, to the total exclusion of
the power of judicial review to check and restrain any grave abuse of the
impeachment process. Nor can it reasonably support the interpretation that
it necessarily confers upon the Senate the inherently judicial power to
determine constitutional questions incident to impeachment proceedings.

Said American jurisprudence and authorities, much less the American

Constitution, are of dubious application for these are no longer controlling
within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not
be beguiled by foreign jurisprudence some of which are hardly applicable
because they have been dictated by different constitutional settings and
needs."53 Indeed, although the Philippine Constitution can trace its origins
to that of the United States, their paths of development have long since
diverged. In the colorful words of Father Bernas, "[w]e have cut the
umbilical cord."

The major difference between the judicial power of the Philippine Supreme
Court and that of the U.S. Supreme Court is that while the power of judicial
review is only impliedly granted to the U.S. Supreme Court and is
discretionary in nature, that granted to the Philippine Supreme Court and
lower courts, as expressly provided for in the Constitution, is not just a
power but also a duty, and it was given an expanded definition to include
the power to correct any grave abuse of discretion on the part of any
government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of
Representatives over impeachment proceedings. While the U.S.
Constitution bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution, though vesting in the
House of Representatives the exclusive power to initiate impeachment
cases,55 provides for several limitations to the exercise of such power as
embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These
limitations include the manner of filing, required vote to impeach, and the
one year bar on the impeachment of one and the same official.

Respondents are also of the view that judicial review of impeachments

undermines their finality and may also lead to conflicts between Congress
and the judiciary. Thus, they call upon this Court to exercise judicial
statesmanship on the principle that "whenever possible, the Court should
defer to the judgment of the people expressed legislatively, recognizing full
well the perils of judicial willfulness and pride."56

But did not the people also express their will when they instituted the
above-mentioned safeguards in the Constitution? This shows that the
Constitution did not intend to leave the matter of impeachment to the sole
discretion of Congress. Instead, it provided for certain well-defined limits, or
in the language of Baker v. Carr,57 "judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the
power of judicial review.

The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by

respondents in support of the argument that the impeachment power is
beyond the scope of judicial review, are not in point. These cases concern
the denial of petitions for writs of mandamus to compel the legislature to
perform non-ministerial acts, and do not concern the exercise of the power
of judicial review.

There is indeed a plethora of cases in which this Court exercised the power
of judicial review over congressional action. Thus, in Santiago v. Guingona,
Jr.,60 this Court ruled that it is well within the power and jurisdiction of the
Court to inquire whether the Senate or its officials committed a violation of
the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an
act of the Philippine Senate on the ground that it contravened the
Constitution, it held that the petition raises a justiciable controversy and that
when an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty
of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this Court
declared null and void a resolution of the House of Representatives
withdrawing the nomination, and rescinding the election, of a congressman
as a member of the House Electoral Tribunal for being violative of Section
17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the
resolution of whether the House representation in the Commission on
Appointments was based on proportional representation of the political
parties as provided in Section 18, Article VI of the Constitution is subject to
judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on
Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held
that although under the Constitution, the legislative power is vested
exclusively in Congress, this does not detract from the power of the courts
to pass upon the constitutionality of acts of Congress. In Angara v.
Electoral Commission,66 it ruled that confirmation by the National
Assembly of the election of any member, irrespective of whether his
election is contested, is not essential before such member-elect may
discharge the duties and enjoy the privileges of a member of the National
Assembly.

Finally, there exists no constitutional basis for the contention that the
exercise of judicial review over impeachment proceedings would upset the
system of checks and balances. Verily, the Constitution is to be interpreted
as a whole and "one section is not to be allowed to defeat another."67 Both
are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the
powers assigned to it by the Constitution.

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of

judicial review, like almost all powers conferred by the Constitution, is
subject to several limitations, namely: (1) an actual case or controversy
calling for the exercise of judicial power; (2) the person challenging the act
must have "standing" to challenge; he must have a personal and
substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4)
the issue of constitutionality must be the very lis mota of the case.

x x x Even then, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very
lis mota presented. Any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions unrelated to
actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More
than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice of the people
as expressed through their representatives in the executive and legislative
departments of the government.68 (Italics in the original)

Standing

Locus standi or legal standing or has been defined as a personal and

substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question of standing is whether a party alleges
such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional
questions.69

Intervenor Soriano, in praying for the dismissal of the petitions, contends

that petitioners do not have standing since only the Chief Justice has
sustained and will sustain direct personal injury. Amicus curiae former
Justice Minister and Solicitor General Estelito Mendoza similarly contends.

Upon the other hand, the Solicitor General asserts that petitioners have
standing since this Court had, in the past, accorded standing to taxpayers,
voters, concerned citizens, legislators in cases involving paramount public
interest70 and transcendental importance,71 and that procedural matters
are subordinate to the need to determine whether or not the other branches
of the government have kept themselves within the limits of the Constitution
and the laws and that they have not abused the discretion given to them.72
Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the
same opinion, citing transcendental importance and the well-entrenched
rule exception that, when the real party in interest is unable to vindicate his
rights by seeking the same remedies, as in the case of the Chief Justice
who, for ethical reasons, cannot himself invoke the jurisdiction of this Court,
the courts will grant petitioners standing.

There is, however, a difference between the rule on real-party-in-interest

and the rule on standing, for the former is a concept of civil procedure73
while the latter has constitutional underpinnings.74 In view of the
arguments set forth regarding standing, it behooves the Court to reiterate
the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus
standi and to distinguish it from real party-in-interest.

The difference between the rule on standing and real party in interest has
been noted by authorities thus: "It is important to note . . . that standing
because of its constitutional and public policy underpinnings, is very
different from questions relating to whether a particular plaintiff is the real
party in interest or has capacity to sue. Although all three requirements are
directed towards ensuring that only certain parties can maintain an action,
standing restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary in certain
areas.

Standing is a special concern in constitutional law because in some cases

suits are brought not by parties who have been personally injured by the
operation of a law or by official action taken, but by concerned citizens,
taxpayers or voters who actually sue in the public interest. Hence the
question in standing is whether such parties have "alleged such a personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional
questions."

xxx
On the other hand, the question as to "real party in interest" is whether he
is "the party who would be benefited or injured by the judgment, or the
'party entitled to the avails of the suit.'"76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the
alleged unconstitutional acts of the House of Representatives, none of the
petitioners before us asserts a violation of the personal rights of the Chief
Justice. On the contrary, they invariably invoke the vindication of their own
rights as taxpayers; members of Congress; citizens, individually or in a
class suit; and members of the bar and of the legal profession which were
supposedly violated by the alleged unconstitutional acts of the House of
Representatives.

In a long line of cases, however, concerned citizens, taxpayers and

legislators when specific requirements have been met have been given
standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the

constitutionality of a statute must be direct and personal. He must be able
to show, not only that the law or any government act is invalid, but also that
he sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has been or is
about to be denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by reason of
the statute or act complained of.77 In fine, when the proceeding involves
the assertion of a public right,78 the mere fact that he is a citizen satisfies
the requirement of personal interest.

In the case of a taxpayer, he is allowed to sue where there is a claim that

public funds are illegally disbursed, or that public money is being deflected
to any improper purpose, or that there is a wastage of public funds through
the enforcement of an invalid or unconstitutional law.79 Before he can
invoke the power of judicial review, however, he must specifically prove
that he has sufficient interest in preventing the illegal expenditure of money
raised by taxation and that he would sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not sufficient that he
has merely a general interest common to all members of the public.80
At all events, courts are vested with discretion as to whether or not a
taxpayer's suit should be entertained.81 This Court opts to grant standing
to most of the petitioners, given their allegation that any impending
transmittal to the Senate of the Articles of Impeachment and the ensuing
trial of the Chief Justice will necessarily involve the expenditure of public
funds.

As for a legislator, he is allowed to sue to question the validity of any official

action which he claims infringes his prerogatives as a legislator.82 Indeed,
a member of the House of Representatives has standing to maintain
inviolate the prerogatives, powers and privileges vested by the Constitution
in his office.83

While an association has legal personality to represent its members,84

especially when it is composed of substantial taxpayers and the outcome
will affect their vital interests,85 the mere invocation by the Integrated Bar
of the Philippines or any member of the legal profession of the duty to
preserve the rule of law and nothing more, although undoubtedly true, does
not suffice to clothe it with standing. Its interest is too general. It is shared
by other groups and the whole citizenry. However, a reading of the petitions
shows that it has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and weight as
precedents.86 It, therefore, behooves this Court to relax the rules on
standing and to resolve the issues presented by it.

In the same vein, when dealing with class suits filed in behalf of all citizens,
persons intervening must be sufficiently numerous to fully protect the
interests of all concerned87 to enable the court to deal properly with all
interests involved in the suit,88 for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under the res judicata principle,
binding on all members of the class whether or not they were before the
court.89 Where it clearly appears that not all interests can be sufficiently
represented as shown by the divergent issues raised in the numerous
petitions before this Court, G.R. No. 160365 as a class suit ought to fail.
Since petitioners additionally allege standing as citizens and taxpayers,
however, their petition will stand.

The Philippine Bar Association, in G.R. No. 160403, invokes the sole
ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in
G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the
following instructive determinants formulated by former Supreme Court
Justice Florentino P. Feliciano are instructive: (1) the character of the funds
or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government; and (3) the lack of
any other party with a more direct and specific interest in raising the
questions being raised.90 Applying these determinants, this Court is
satisfied that the issues raised herein are indeed of transcendental
importance.

In not a few cases, this Court has in fact adopted a liberal attitude on the
locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people, as when the issues raised are of
paramount importance to the public.91 Such liberality does not, however,
mean that the requirement that a party should have an interest in the
matter is totally eliminated. A party must, at the very least, still plead the
existence of such interest, it not being one of which courts can take judicial
notice. In petitioner Vallejos' case, he failed to allege any interest in the
case. He does not thus have standing.

With respect to the motions for intervention, Rule 19, Section 2 of the Rules
of Court requires an intervenor to possess a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against
both, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof.
While intervention is not a matter of right, it may be permitted by the courts
when the applicant shows facts which satisfy the requirements of the law
authorizing intervention.92

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's

case, they seek to join petitioners Candelaria, et. al. in G.R. No. 160262.
Since, save for one additional issue, they raise the same issues and the
same standing, and no objection on the part of petitioners Candelaria, et.
al. has been interposed, this Court as earlier stated, granted the Motion for
Leave of Court to Intervene and Petition-in-Intervention.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,

Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking
their right as citizens to intervene, alleging that "they will suffer if this
insidious scheme of the minority members of the House of Representatives
is successful," this Court found the requisites for intervention had been
complied with.

Alleging that the issues raised in the petitions in G.R. Nos. 160261,
160262, 160263, 160277, 160292, 160295, and 160310 were of
transcendental importance, World War II Veterans Legionnaires of the
Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to
raise the additional issue of whether or not the second impeachment
complaint against the Chief Justice is valid and based on any of the
grounds prescribed by the Constitution.

Finding that Nagmamalasakit na mga Manananggol ng mga

Manggagawang Pilipino, Inc., et al. and World War II Veterans
Legionnaires of the Philippines, Inc. possess a legal interest in the matter in
litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the
limited purpose of making of record and arguing a point of view that differs
with Senate President Drilon's. He alleges that submitting to this Court's
jurisdiction as the Senate President does will undermine the independence
of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives.
Clearly, Senator Pimentel possesses a legal interest in the matter in
litigation, he being a member of Congress against which the herein
petitions are directed. For this reason, and to fully ventilate all substantial
issues relating to the matter at hand, his Motion to Intervene was granted
and he was, as earlier stated, allowed to argue.

Lastly, as to Jaime N. Soriano's motion to intervene, the same must be

denied for, while he asserts an interest as a taxpayer, he failed to meet the
standing requirement for bringing taxpayer's suits as set forth in Dumlao v.
Comelec,93 to wit:

x x x While, concededly, the elections to be held involve the expenditure of

public moneys, nowhere in their Petition do said petitioners allege that their
tax money is "being extracted and spent in violation of specific
constitutional protection against abuses of legislative power," or that there
is a misapplication of such funds by respondent COMELEC, or that public
money is being deflected to any improper purpose. Neither do petitioners
seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law.94 (Citations omitted)

In praying for the dismissal of the petitions, Soriano failed even to allege
that the act of petitioners will result in illegal disbursement of public funds or
in public money being deflected to any improper purpose. Additionally, his
mere interest as a member of the Bar does not suffice to clothe him with
standing.

Ripeness and Prematurity

In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held

that for a case to be considered ripe for adjudication, "it is a prerequisite
that something had by then been accomplished or performed by either
branch before a court may come into the picture."96 Only then may the
courts pass on the validity of what was done, if and when the latter is
challenged in an appropriate legal proceeding.

The instant petitions raise in the main the issue of the validity of the filing of
the second impeachment complaint against the Chief Justice in accordance
with the House Impeachment Rules adopted by the 12th Congress, the
constitutionality of which is questioned. The questioned acts having been
carried out, i.e., the second impeachment complaint had been filed with the
House of Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged
unconstitutional act should be accomplished and performed before suit, as
Tan v. Macapagal holds, has been complied with.

Related to the issue of ripeness is the question of whether the instant

petitions are premature. Amicus curiae former Senate President Jovito R.
Salonga opines that there may be no urgent need for this Court to render a
decision at this time, it being the final arbiter on questions of
constitutionality anyway. He thus recommends that all remedies in the
House and Senate should first be exhausted.

Taking a similar stand is Dean Raul Pangalangan of the U.P. College of

Law who suggests to this Court to take judicial notice of on-going attempts
to encourage signatories to the second impeachment complaint to withdraw
their signatures and opines that the House Impeachment Rules provide for
an opportunity for members to raise constitutional questions themselves
when the Articles of Impeachment are presented on a motion to transmit to
the same to the Senate. The dean maintains that even assuming that the
Articles are transmitted to the Senate, the Chief Justice can raise the issue
of their constitutional infirmity by way of a motion to dismiss.

The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the House
Impeachment Rules of their constitutional infirmity. Neither would such a
withdrawal, by itself, obliterate the questioned second impeachment
complaint since it would only place it under the ambit of Sections 3(2) and
(3) of Article XI of the Constitution97 and, therefore, petitioners would
continue to suffer their injuries.

Second and most importantly, the futility of seeking remedies from either or
both Houses of Congress before coming to this Court is shown by the fact
that, as previously discussed, neither the House of Representatives nor the
Senate is clothed with the power to rule with definitiveness on the issue of
constitutionality, whether concerning impeachment proceedings or
otherwise, as said power is exclusively vested in the judiciary by the earlier
quoted Section I, Article VIII of the Constitution. Remedy cannot be sought
from a body which is bereft of power to grant it.

Justiciability

In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto

Concepcion defined the term "political question," viz:

[T]he term "political question" connotes, in legal parlance, what it means in

ordinary parlance, namely, a question of policy. In other words, in the
language of Corpus Juris Secundum, it refers to "those questions which,
under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the Government." It is
concerned with issues dependent upon the wisdom, not legality, of a
particular measure.99 (Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without

any rhyme or reason, this Court vacillated on its stance of taking
cognizance of cases which involved political questions. In some cases, this
Court hid behind the cover of the political question doctrine and refused to
exercise its power of judicial review.100 In other cases, however, despite
the seeming political nature of the therein issues involved, this Court
assumed jurisdiction whenever it found constitutionally imposed limits on
powers or functions conferred upon political bodies.101 Even in the
landmark 1988 case of Javellana v. Executive Secretary102 which raised
the issue of whether the 1973 Constitution was ratified, hence, in force, this
Court shunted the political question doctrine and took cognizance thereof.
Ratification by the people of a Constitution is a political question, it being a
question decided by the people in their sovereign capacity.

The frequency with which this Court invoked the political question doctrine
to refuse to take jurisdiction over certain cases during the Marcos regime
motivated Chief Justice Concepcion, when he became a Constitutional
Commissioner, to clarify this Court's power of judicial review and its
application on issues involving political questions, viz:

MR. CONCEPCION. Thank you, Mr. Presiding Officer.

I will speak on the judiciary. Practically, everybody has made, I suppose,

the usual comment that the judiciary is the weakest among the three major
branches of the service. Since the legislature holds the purse and the
executive the sword, the judiciary has nothing with which to enforce its
decisions or commands except the power of reason and appeal to
conscience which, after all, reflects the will of God, and is the most
powerful of all other powers without exception. x x x And so, with the body's
indulgence, I will proceed to read the provisions drafted by the Committee
on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It
says:

The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and
explain.
Judicial power includes the duty of courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part or
instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our

experience during martial law. As a matter of fact, it has some antecedents
in the past, but the role of the judiciary during the deposed regime was
marred considerably by the circumstance that in a number of cases against
the government, which then had no legal defense at all, the solicitor
general set up the defense of political questions and got away with it. As a
consequence, certain principles concerning particularly the writ of habeas
corpus, that is, the authority of courts to order the release of political
detainees, and other matters related to the operation and effect of martial
law failed because the government set up the defense of political question.
And the Supreme Court said: "Well, since it is political, we have no
authority to pass upon it." The Committee on the Judiciary feels that this
was not a proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime. I am
sure the members of the Bar are familiar with this situation. But for the
benefit of the Members of the Commission who are not lawyers, allow me
to explain. I will start with a decision of the Supreme Court in 1973 on the
case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial
law was announced on September 22, although the proclamation was
dated September 21. The obvious reason for the delay in its publication
was that the administration had apprehended and detained prominent
newsmen on September 21. So that when martial law was announced on
September 22, the media hardly published anything about it. In fact, the
media could not publish any story not only because our main writers were
already incarcerated, but also because those who succeeded them in their
jobs were under mortal threat of being the object of wrath of the ruling
party. The 1971 Constitutional Convention had begun on June 1, 1971 and
by September 21 or 22 had not finished the Constitution; it had barely
agreed in the fundamentals of the Constitution. I forgot to say that upon the
proclamation of martial law, some delegates to that 1971 Constitutional
Convention, dozens of them, were picked up. One of them was our very
own colleague, Commissioner Calderon. So, the unfinished draft of the
Constitution was taken over by representatives of Malacaang. In 17 days,
they finished what the delegates to the 1971 Constitutional Convention had
been unable to accomplish for about 14 months. The draft of the 1973
Constitution was presented to the President around December 1, 1972,
whereupon the President issued a decree calling a plebiscite which
suspended the operation of some provisions in the martial law decree
which prohibited discussions, much less public discussions of certain
matters of public concern. The purpose was presumably to allow a free
discussion on the draft of the Constitution on which a plebiscite was to be
held sometime in January 1973. If I may use a word famous by our
colleague, Commissioner Ople, during the interregnum, however, the draft
of the Constitution was analyzed and criticized with such a telling effect that
Malacaang felt the danger of its approval. So, the President suspended
indefinitely the holding of the plebiscite and announced that he would
consult the people in a referendum to be held from January 10 to January
15. But the questions to be submitted in the referendum were not
announced until the eve of its scheduled beginning, under the supposed
supervision not of the Commission on Elections, but of what was then
designated as "citizens assemblies or barangays." Thus the barangays
came into existence. The questions to be propounded were released with
proposed answers thereto, suggesting that it was unnecessary to hold a
plebiscite because the answers given in the referendum should be
regarded as the votes cast in the plebiscite. Thereupon, a motion was filed
with the Supreme Court praying that the holding of the referendum be
suspended. When the motion was being heard before the Supreme Court,
the Minister of Justice delivered to the Court a proclamation of the
President declaring that the new Constitution was already in force because
the overwhelming majority of the votes cast in the referendum favored the
Constitution. Immediately after the departure of the Minister of Justice, I
proceeded to the session room where the case was being heard. I then
informed the Court and the parties the presidential proclamation declaring
that the 1973 Constitution had been ratified by the people and is now in
force.

A number of other cases were filed to declare the presidential proclamation

null and void. The main defense put up by the government was that the
issue was a political question and that the court had no jurisdiction to
entertain the case.

xxx
The government said that in a referendum held from January 10 to January
15, the vast majority ratified the draft of the Constitution. Note that all
members of the Supreme Court were residents of Manila, but none of them
had been notified of any referendum in their respective places of residence,
much less did they participate in the alleged referendum. None of them saw
any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of
the members of the Court felt that there had been no referendum.

Second, a referendum cannot substitute for a plebiscite. There is a big

difference between a referendum and a plebiscite. But another group of
justices upheld the defense that the issue was a political question.
Whereupon, they dismissed the case. This is not the only major case in
which the plea of "political question" was set up. There have been a
number of other cases in the past.

x x x The defense of the political question was rejected because the issue
was clearly justiciable.

xxx

x x x When your Committee on the Judiciary began to perform its functions,

it faced the following questions: What is judicial power? What is a political
question?

The Supreme Court, like all other courts, has one main function: to settle
actual controversies involving conflicts of rights which are demandable and
enforceable. There are rights which are guaranteed by law but cannot be
enforced by a judiciary party. In a decided case, a husband complained
that his wife was unwilling to perform her duties as a wife. The Court said:
"We can tell your wife what her duties as such are and that she is bound to
comply with them, but we cannot force her physically to discharge her main
marital duty to her husband. There are some rights guaranteed by law, but
they are so personal that to enforce them by actual compulsion would be
highly derogatory to human dignity."

This is why the first part of the second paragraph of Section I provides that:

Judicial power includes the duty of courts to settle actual controversies

involving rights which are legally demandable or enforceable . . .

The courts, therefore, cannot entertain, much less decide, hypothetical

questions. In a presidential system of government, the Supreme Court has,
also another important function. The powers of government are generally
considered divided into three branches: the Legislative, the Executive and
the Judiciary. Each one is supreme within its own sphere and independent
of the others. Because of that supremacy power to determine whether a
given law is valid or not is vested in courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other
words, the judiciary is the final arbiter on the question whether or not a
branch of government or any of its officials has acted without jurisdiction or
in excess of jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of jurisdiction. This is
not only a judicial power but a duty to pass judgment on matters of this
nature.

This is the background of paragraph 2 of Section 1, which means that the

courts cannot hereafter evade the duty to settle matters of this nature, by
claiming that such matters constitute a political question.

I have made these extended remarks to the end that the Commissioners
may have an initial food for thought on the subject of the judiciary.103
(Italics in the original; emphasis supplied)

During the deliberations of the Constitutional Commission, Chief Justice

Concepcion further clarified the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial
power is not vested in the Supreme Court alone but also in other lower
courts as may be created by law.

MR. CONCEPCION. Yes.

MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to

identify political questions with jurisdictional questions. But there is a
difference.

MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases

but where there is a question as to whether the government had authority
or had abused its authority to the extent of lacking jurisdiction or excess of
jurisdiction, that is not a political question. Therefore, the court has the duty
to decide.

xxx

FR. BERNAS. Ultimately, therefore, it will always have to be decided by the

Supreme Court according to the new numerical need for votes.

On another point, is it the intention of Section 1 to do away with the political

question doctrine?

MR. CONCEPCION. No.

FR. BERNAS. It is not.

MR. CONCEPCION. No, because whenever there is an abuse of

discretion, amounting to a lack of jurisdiction. . .

FR. BERNAS. So, I am satisfied with the answer that it is not intended to
do away with the political question doctrine.

MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is

judicial power. But the Gentleman will notice it says, "judicial power
includes" and the reason being that the definition that we might make may
not cover all possible areas.

FR. BERNAS. So, this is not an attempt to solve the problems arising from
the political question doctrine.

MR. CONCEPCION. It definitely does not eliminate the fact that truly
political questions are beyond the pale of judicial power.104 (Emphasis
supplied)

From the foregoing record of the proceedings of the 1986 Constitutional

Commission, it is clear that judicial power is not only a power; it is also a
duty, a duty which cannot be abdicated by the mere specter of this creature
called the political question doctrine. Chief Justice Concepcion hastened to
clarify, however, that Section 1, Article VIII was not intended to do away
with "truly political questions." From this clarification it is gathered that there
are two species of political questions: (1) "truly political questions" and (2)
those which "are not truly political questions."

Truly political questions are thus beyond judicial review, the reason for
respect of the doctrine of separation of powers to be maintained. On the
other hand, by virtue of Section 1, Article VIII of the Constitution, courts can
review questions which are not truly political in nature.

As pointed out by amicus curiae former dean Pacifico Agabin of the UP

College of Law, this Court has in fact in a number of cases taken
jurisdiction over questions which are not truly political following the
effectivity of the present Constitution.

In Marcos v. Manglapus,105 this Court, speaking through Madame Justice

Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to the political departments
to decide.106 x x x

In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro

Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must

perform under the Constitution. Moreover, as held in a recent case, "(t)he
political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means
does away with the applicability of the principle in appropriate cases."108
(Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this
Court ruled:

In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that
the issue presented before us was political in nature, we would still not be
precluded from resolving it under the expanded jurisdiction conferred upon
us that now covers, in proper cases, even the political question.110 x x x
(Emphasis and underscoring supplied.)

Section 1, Article VIII, of the Court does not define what are justiciable
political questions and non-justiciable political questions, however.
Identification of these two species of political questions may be
problematic. There has been no clear standard. The American case of
Baker v. Carr111 attempts to provide some:

x x x Prominent on the surface of any case held to involve a political

question is found a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility
of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches
of government; or an unusual need for questioning adherence to a political
decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.112
(Underscoring supplied)

Of these standards, the more reliable have been the first three: (1) a
textually demonstrable constitutional commitment of the issue to a
coordinate political department; (2) the lack of judicially discoverable and
manageable standards for resolving it; and (3) the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial
discretion. These standards are not separate and distinct concepts but are
interrelated to each in that the presence of one strengthens the conclusion
that the others are also present.

The problem in applying the foregoing standards is that the American

concept of judicial review is radically different from our current concept, for
Section 1, Article VIII of the Constitution provides our courts with far less
discretion in determining whether they should pass upon a constitutional
issue.

In our jurisdiction, the determination of a truly political question from a non-

justiciable political question lies in the answer to the question of whether
there are constitutionally imposed limits on powers or functions conferred
upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly
acted within such limits. This Court shall thus now apply this standard to
the present controversy.

These petitions raise five substantial issues:

I. Whether the offenses alleged in the Second impeachment complaint

constitute valid impeachable offenses under the Constitution.

II. Whether the second impeachment complaint was filed in accordance

with Section 3(4), Article XI of the Constitution.

III. Whether the legislative inquiry by the House Committee on Justice into
the Judicial Development Fund is an unconstitutional infringement of the
constitutionally mandated fiscal autonomy of the judiciary.

IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment

adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution.

V. Whether the second impeachment complaint is barred under Section

3(5) of Article XI of the Constitution.

The first issue goes into the merits of the second impeachment complaint
over which this Court has no jurisdiction. More importantly, any discussion
of this issue would require this Court to make a determination of what
constitutes an impeachable offense. Such a determination is a purely
political question which the Constitution has left to the sound discretion of
the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113

Although Section 2 of Article XI of the Constitution enumerates six grounds

for impeachment, two of these, namely, other high crimes and betrayal of
public trust, elude a precise definition. In fact, an examination of the
records of the 1986 Constitutional Commission shows that the framers
could find no better way to approximate the boundaries of betrayal of public
trust and other high crimes than by alluding to both positive and negative
examples of both, without arriving at their clear cut definition or even a
standard therefor.114 Clearly, the issue calls upon this court to decide a
non-justiciable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the

constitutionality of a governmental act should be avoided whenever
possible. Thus, in the case of Sotto v. Commission on Elections,115 this
Court held:

x x x It is a well-established rule that a court should not pass upon a

constitutional question and decide a law to be unconstitutional or invalid,
unless such question is raised by the parties and that when it is raised, if
the record also presents some other ground upon which the court may rest
its judgment, that course will be adopted and the constitutional question will
be left for consideration until a case arises in which a decision upon such
question will be unavoidable.116 [Emphasis and underscoring supplied]

The same principle was applied in Luz Farms v. Secretary of Agrarian

Reform,117 where this Court invalidated Sections 13 and 32 of Republic
Act No. 6657 for being confiscatory and violative of due process, to wit:

It has been established that this Court will assume jurisdiction over a
constitutional question only if it is shown that the essential requisites of a
judicial inquiry into such a question are first satisfied. Thus, there must be
an actual case or controversy involving a conflict of legal rights susceptible
of judicial determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution of the question is
unavoidably necessary to the decision of the case itself.118 [Emphasis
supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is
truly unavoidable and is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the
invalidity of the second impeachment complaint, collectively raise several
constitutional issues upon which the outcome of this controversy could
possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided
by the related cannon of adjudication that "the court should not form a rule
of constitutional law broader than is required by the precise facts to which it
is applied."119

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among
other reasons, the second impeachment complaint is invalid since it directly
resulted from a Resolution120 calling for a legislative inquiry into the JDF,
which Resolution and legislative inquiry petitioners claim to likewise be
unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of
separation of powers; (c) a violation of the constitutionally mandated fiscal
autonomy of the judiciary; and (d) an assault on the independence of the
judiciary.121

Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the
studied opinion of this Court that the issue of the constitutionality of the said
Resolution and resulting legislative inquiry is too far removed from the
issue of the validity of the second impeachment complaint. Moreover, the
resolution of said issue would, in the Court's opinion, require it to form a
rule of constitutional law touching on the separate and distinct matter of
legislative inquiries in general, which would thus be broader than is
required by the facts of these consolidated cases. This opinion is further
strengthened by the fact that said petitioners have raised other grounds in
support of their petition which would not be adversely affected by the
Court's ruling.

En passant, this Court notes that a standard for the conduct of legislative
inquiries has already been enunciated by this Court in Bengzon, Jr. v.
Senate Blue Ribbon Commttee,122 viz:

The 1987 Constitution expressly recognizes the power of both houses of

Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article
VI thereof provides:
The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.

The power of both houses of Congress to conduct inquiries in aid of

legislation is not, therefore absolute or unlimited. Its exercise is
circumscribed by the afore-quoted provision of the Constitution. Thus, as
provided therein, the investigation must be "in aid of legislation in
accordance with its duly published rules of procedure" and that "the rights
of persons appearing in or affected by such inquiries shall be respected." It
follows then that the right rights of persons under the Bill of Rights must be
respected, including the right to due process and the right not be compelled
to testify against one's self.123

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino

Quadra, while joining the original petition of petitioners Candelaria, et. al.,
introduce the new argument that since the second impeachment complaint
was verified and filed only by Representatives Gilberto Teodoro, Jr. and
Felix William Fuentebella, the same does not fall under the provisions of
Section 3 (4), Article XI of the Constitution which reads:

Section 3(4) In case the verified complaint or resolution of impeachment is

filed by at least one-third of all the Members of the House, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall
forthwith proceed.

They assert that while at least 81 members of the House of

Representatives signed a Resolution of Endorsement/Impeachment, the
same did not satisfy the requisites for the application of the afore-
mentioned section in that the "verified complaint or resolution of
impeachment" was not filed "by at least one-third of all the Members of the
House." With the exception of Representatives Teodoro and Fuentebella,
the signatories to said Resolution are alleged to have verified the same
merely as a "Resolution of Endorsement." Intervenors point to the
"Verification" of the Resolution of Endorsement which states that:

"We are the proponents/sponsors of the Resolution of Endorsement of the

abovementioned Complaint of Representatives Gilberto Teodoro and Felix
William B. Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the Constitution
requires in order for said second impeachment complaint to automatically
become the Articles of Impeachment and for trial in the Senate to begin
"forthwith," is that the verified complaint be "filed," not merely endorsed, by
at least one-third of the Members of the House of Representatives. Not
having complied with this requirement, they concede that the second
impeachment complaint should have been calendared and referred to the
House Committee on Justice under Section 3(2), Article XI of the
Constitution, viz:

Section 3(2) A verified complaint for impeachment may be filed by any

Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be included
in the Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to
the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined

that for Section 3 (4), Article XI of the Constitution to apply, there should be
76 or more representatives who signed and verified the second
impeachment complaint as complainants, signed and verified the
signatories to a resolution of impeachment. Justice Maambong likewise
asserted that the Resolution of Endorsement/Impeachment signed by at
least one-third of the members of the House of Representatives as
endorsers is not the resolution of impeachment contemplated by the
Constitution, such resolution of endorsement being necessary only from at
least one Member whenever a citizen files a verified impeachment
complaint.

While the foregoing issue, as argued by intervenors Macalintal and Quadra,

does indeed limit the scope of the constitutional issues to the provisions on
impeachment, more compelling considerations militate against its adoption
as the lis mota or crux of the present controversy. Chief among this is the
fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
160262, have raised this issue as a ground for invalidating the second
impeachment complaint. Thus, to adopt this additional ground as the basis
for deciding the instant consolidated petitions would not only render for
naught the efforts of the original petitioners in G.R. No. 160262, but the
efforts presented by the other petitioners as well.

Again, the decision to discard the resolution of this issue as unnecessary

for the determination of the instant cases is made easier by the fact that
said intervenors Macalintal and Quadra have joined in the petition of
Candelaria, et. al., adopting the latter's arguments and issues as their own.
Consequently, they are not unduly prejudiced by this Court's decision.

In sum, this Court holds that the two remaining issues, inextricably linked
as they are, constitute the very lis mota of the instant controversy: (1)
whether Sections 15 and 16 of Rule V of the House Impeachment Rules
adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and (2) whether, as a
result thereof, the second impeachment complaint is barred under Section
3(5) of Article XI of the Constitution.

Judicial Restraint

Senator Pimentel urges this Court to exercise judicial restraint on the

ground that the Senate, sitting as an impeachment court, has the sole
power to try and decide all cases of impeachment. Again, this Court
reiterates that the power of judicial review includes the power of review
over justiciable issues in impeachment proceedings.

On the other hand, respondents Speaker De Venecia et. al. argue that
"[t]here is a moral compulsion for the Court to not assume jurisdiction over
the impeachment because all the Members thereof are subject to
impeachment."125 But this argument is very much like saying the
Legislature has a moral compulsion not to pass laws with penalty clauses
because Members of the House of Representatives are subject to them.

The exercise of judicial restraint over justiciable issues is not an option

before this Court. Adjudication may not be declined, because this Court is
not legally disqualified. Nor can jurisdiction be renounced as there is no
other tribunal to which the controversy may be referred."126 Otherwise, this
Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the
Constitution. More than being clothed with authority thus, this Court is duty-
bound to take cognizance of the instant petitions.127 In the august words
of amicus curiae Father Bernas, "jurisdiction is not just a power; it is a
solemn duty which may not be renounced. To renounce it, even if it is
vexatious, would be a dereliction of duty."

Even in cases where it is an interested party, the Court under our system of
government cannot inhibit itself and must rule upon the challenge because
no other office has the authority to do so.128 On the occasion that this
Court had been an interested party to the controversy before it, it has acted
upon the matter "not with officiousness but in the discharge of an
unavoidable duty and, as always, with detachment and fairness."129 After
all, "by [his] appointment to the office, the public has laid on [a member of
the judiciary] their confidence that [he] is mentally and morally fit to pass
upon the merits of their varied contentions. For this reason, they expect
[him] to be fearless in [his] pursuit to render justice, to be unafraid to
displease any person, interest or power and to be equipped with a moral
fiber strong enough to resist the temptations lurking in [his] office."130

The duty to exercise the power of adjudication regardless of interest had

already been settled in the case of Abbas v. Senate Electoral Tribunal.131
In that case, the petitioners filed with the respondent Senate Electoral
Tribunal a Motion for Disqualification or Inhibition of the Senators-Members
thereof from the hearing and resolution of SET Case No. 002-87 on the
ground that all of them were interested parties to said case as respondents
therein. This would have reduced the Tribunal's membership to only its
three Justices-Members whose disqualification was not sought, leaving
them to decide the matter. This Court held:

Where, as here, a situation is created which precludes the substitution of

any Senator sitting in the Tribunal by any of his other colleagues in the
Senate without inviting the same objections to the substitute's competence,
the proposed mass disqualification, if sanctioned and ordered, would leave
the Tribunal no alternative but to abandon a duty that no other court or
body can perform, but which it cannot lawfully discharge if shorn of the
participation of its entire membership of Senators.

To our mind, this is the overriding consideration that the Tribunal be not
prevented from discharging a duty which it alone has the power to perform,
the performance of which is in the highest public interest as evidenced by
its being expressly imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of
the Constitution could not have been unaware of the possibility of an
election contest that would involve all Senatorselect, six of whom would
inevitably have to sit in judgment thereon. Indeed, such possibility might
surface again in the wake of the 1992 elections when once more, but for
the last time, all 24 seats in the Senate will be at stake. Yet the Constitution
provides no scheme or mode for settling such unusual situations or for the
substitution of Senators designated to the Tribunal whose disqualification
may be sought. Litigants in such situations must simply place their trust and
hopes of vindication in the fairness and sense of justice of the Members of
the Tribunal. Justices and Senators, singly and collectively.

Let us not be misunderstood as saying that no Senator-Member of the

Senate Electoral Tribunal may inhibit or disqualify himself from sitting in
judgment on any case before said Tribunal. Every Member of the Tribunal
may, as his conscience dictates, refrain from participating in the resolution
of a case where he sincerely feels that his personal interests or biases
would stand in the way of an objective and impartial judgment. What we are
merely saying is that in the light of the Constitution, the Senate Electoral
Tribunal cannot legally function as such, absent its entire membership of
Senators and that no amendment of its Rules can confer on the three
Justices-Members alone the power of valid adjudication of a senatorial
election contest.

More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a

majority of them, is nothing short of pro tanto depriving the Court itself of its
jurisdiction as established by the fundamental law. Disqualification of a
judge is a deprivation of his judicial power. And if that judge is the one
designated by the Constitution to exercise the jurisdiction of his court, as is
the case with the Justices of this Court, the deprivation of his or their
judicial power is equivalent to the deprivation of the judicial power of the
court itself. It affects the very heart of judicial independence. The proposed
mass disqualification, if sanctioned and ordered, would leave the Court no
alternative but to abandon a duty which it cannot lawfully discharge if shorn
of the participation of its entire membership of Justices.133 (Italics in the
original)

Besides, there are specific safeguards already laid down by the Court when
it exercises its power of judicial review.

In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited

the "seven pillars" of limitations of the power of judicial review, enunciated
by US Supreme Court Justice Brandeis in Ashwander v. TVA135 as
follows:

1. The Court will not pass upon the constitutionality of legislation in a

friendly, non-adversary proceeding, declining because to decide such
questions 'is legitimate only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy between individuals. It
never was the thought that, by means of a friendly suit, a party beaten in
the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.'

2. The Court will not 'anticipate a question of constitutional law in advance

of the necessity of deciding it.' . . . 'It is not the habit of the Court to decide
questions of a constitutional nature unless absolutely necessary to a
decision of the case.'

3. The Court will not 'formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.'

4. The Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon
which the case may be disposed of. This rule has found most varied
application. Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter. Appeals
from the highest court of a state challenging its decision of a question
under the Federal Constitution are frequently dismissed because the
judgment can be sustained on an independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of
one who fails to show that he is injured by its operation. Among the many
applications of this rule, none is more striking than the denial of the right of
challenge to one who lacks a personal or property right. Thus, the
challenge by a public official interested only in the performance of his
official duty will not be entertained . . . In Fairchild v. Hughes, the Court
affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. In Massachusetts v.
Mellon, the challenge of the federal Maternity Act was not entertained
although made by the Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the
instance of one who has availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and

even if a serious doubt of constitutionality is raised, it is a cardinal principle
that this Court will first ascertain whether a construction of the statute is
fairly possible by which the question may be avoided (citations omitted).

The foregoing "pillars" of limitation of judicial review, summarized in

Ashwander v. TVA from different decisions of the United States Supreme
Court, can be encapsulated into the following categories:

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required by the

facts of the case

3. that judgment may not be sustained on some other ground

4. that there be actual injury sustained by the party by reason of the

operation of the statute

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in

the exercise of judicial review:

1. actual case or controversy calling for the exercise of judicial power

2. the person challenging the act must have "standing" to challenge; he

must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement

3. the question of constitutionality must be raised at the earliest possible

opportunity

4. the issue of constitutionality must be the very lis mota of the case.136

Respondents Speaker de Venecia, et. al. raise another argument for

judicial restraint the possibility that "judicial review of impeachments might
also lead to embarrassing conflicts between the Congress and the
[J]udiciary." They stress the need to avoid the appearance of impropriety or
conflicts of interest in judicial hearings, and the scenario that it would be
confusing and humiliating and risk serious political instability at home and
abroad if the judiciary countermanded the vote of Congress to remove an
impeachable official.137 Intervenor Soriano echoes this argument by
alleging that failure of this Court to enforce its Resolution against Congress
would result in the diminution of its judicial authority and erode public
confidence and faith in the judiciary.

Such an argument, however, is specious, to say the least. As correctly

stated by the Solicitor General, the possibility of the occurrence of a
constitutional crisis is not a reason for this Court to refrain from upholding
the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate, a
crisis.

Justice Feliciano warned against the dangers when this Court refuses to
act.

x x x Frequently, the fight over a controversial legislative or executive act is

not regarded as settled until the Supreme Court has passed upon the
constitutionality of the act involved, the judgment has not only juridical
effects but also political consequences. Those political consequences may
follow even where the Court fails to grant the petitioner's prayer to nullify an
act for lack of the necessary number of votes. Frequently, failure to act
explicitly, one way or the other, itself constitutes a decision for the
respondent and validation, or at least quasi-validation, follows." 138

Thus, in Javellana v. Executive Secretary139 where this Court was split

and "in the end there were not enough votes either to grant the petitions, or
to sustain respondent's claims,"140 the pre-existing constitutional order
was disrupted which paved the way for the establishment of the martial law
regime.
Such an argument by respondents and intervenor also presumes that the
coordinate branches of the government would behave in a lawless manner
and not do their duty under the law to uphold the Constitution and obey the
laws of the land. Yet there is no reason to believe that any of the branches
of government will behave in a precipitate manner and risk social upheaval,
violence, chaos and anarchy by encouraging disrespect for the
fundamental law of the land.

Substituting the word public officers for judges, this Court is well guided by
the doctrine in People v. Veneracion, to wit:141

Obedience to the rule of law forms the bedrock of our system of justice. If
[public officers], under the guise of religious or political beliefs were allowed
to roam unrestricted beyond boundaries within which they are required by
law to exercise the duties of their office, then law becomes meaningless. A
government of laws, not of men excludes the exercise of broad
discretionary powers by those acting under its authority. Under this system,
[public officers] are guided by the Rule of Law, and ought "to protect and
enforce it without fear or favor," resist encroachments by governments,
political parties, or even the interference of their own personal beliefs.142

Constitutionality of the Rules of Procedure

for Impeachment Proceedings
adopted by the 12th Congress

Respondent House of Representatives, through Speaker De Venecia,

argues that Sections 16 and 17 of Rule V of the House Impeachment Rules
do not violate Section 3 (5) of Article XI of our present Constitution,
contending that the term "initiate" does not mean "to file;" that Section 3 (1)
is clear in that it is the House of Representatives, as a collective body,
which has the exclusive power to initiate all cases of impeachment; that
initiate could not possibly mean "to file" because filing can, as Section 3 (2),
Article XI of the Constitution provides, only be accomplished in 3 ways, to
wit: (1) by a verified complaint for impeachment by any member of the
House of Representatives; or (2) by any citizen upon a resolution of
endorsement by any member; or (3) by at least 1/3 of all the members of
the House. Respondent House of Representatives concludes that the one
year bar prohibiting the initiation of impeachment proceedings against the
same officials could not have been violated as the impeachment complaint
against Chief Justice Davide and seven Associate Justices had not been
initiated as the House of Representatives, acting as the collective body,
has yet to act on it.

The resolution of this issue thus hinges on the interpretation of the term
"initiate." Resort to statutory construction is, therefore, in order.

That the sponsor of the provision of Section 3(5) of the Constitution,

Commissioner Florenz Regalado, who eventually became an Associate
Justice of this Court, agreed on the meaning of "initiate" as "to file," as
proffered and explained by Constitutional Commissioner Maambong during
the Constitutional Commission proceedings, which he (Commissioner
Regalado) as amicus curiae affirmed during the oral arguments on the
instant petitions held on November 5, 2003 at which he added that the act
of "initiating" included the act of taking initial action on the complaint,
dissipates any doubt that indeed the word "initiate" as it twice appears in
Article XI (3) and (5) of the Constitution means to file the complaint and
take initial action on it.

"Initiate" of course is understood by ordinary men to mean, as dictionaries

do, to begin, to commence, or set going. As Webster's Third New
International Dictionary of the English Language concisely puts it, it means
"to perform or facilitate the first action," which jibes with Justice Regalado's
position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a

comlexus of acts consisting of a beginning, a middle and an end. The end
is the transmittal of the articles of impeachment to the Senate. The middle
consists of those deliberative moments leading to the formulation of the
articles of impeachment. The beginning or the initiation is the filing of the
complaint and its referral to the Committee on Justice.

Finally, it should be noted that the House Rule relied upon by

Representatives Cojuangco and Fuentebella says that impeachment is
"deemed initiated" when the Justice Committee votes in favor of
impeachment or when the House reverses a contrary vote of the
Committee. Note that the Rule does not say "impeachment proceedings"
are initiated but rather are "deemed initiated." The language is recognition
that initiation happened earlier, but by legal fiction there is an attempt to
postpone it to a time after actual initiation. (Emphasis and underscoring
supplied)

As stated earlier, one of the means of interpreting the Constitution is

looking into the intent of the law. Fortunately, the intent of the framers of
the 1987 Constitution can be pried from its records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure

and the substantive provisions on impeachment, I understand there have
been many proposals and, I think, these would need some time for
Committee action.

However, I would just like to indicate that I submitted to the Committee a

resolution on impeachment proceedings, copies of which have been
furnished the Members of this body. This is borne out of my experience as
a member of the Committee on Justice, Human Rights and Good
Government which took charge of the last impeachment resolution filed
before the First Batasang Pambansa. For the information of the Committee,
the resolution covers several steps in the impeachment proceedings
starting with initiation, action of the Speaker committee action, calendaring
of report, voting on the report, transmittal referral to the Senate, trial and
judgment by the Senate.

xxx

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a

reconsideration of the approval of the amendment submitted by
Commissioner Regalado, but I will just make of record my thinking that we
do not really initiate the filing of the Articles of Impeachment on the floor.
The procedure, as I have pointed out earlier, was that the initiation starts
with the filing of the complaint. And what is actually done on the floor is that
the committee resolution containing the Articles of Impeachment is the one
approved by the body.

As the phraseology now runs, which may be corrected by the Committee

on Style, it appears that the initiation starts on the floor. If we only have
time, I could cite examples in the case of the impeachment proceedings of
President Richard Nixon wherein the Committee on the Judiciary submitted
the recommendation, the resolution, and the Articles of Impeachment to the
body, and it was the body who approved the resolution. It is not the body
which initiates it. It only approves or disapproves the resolution. So, on that
score, probably the Committee on Style could help in rearranging these
words because we have to be very technical about this. I have been
bringing with me The Rules of the House of Representatives of the U.S.
Congress. The Senate Rules are with me. The proceedings on the case of
Richard Nixon are with me. I have submitted my proposal, but the
Committee has already decided. Nevertheless, I just want to indicate this
on record.

xxx

MR. MAAMBONG. I would just like to move for a reconsideration of the

approval of Section 3 (3). My reconsideration will not at all affect the
substance, but it is only in keeping with the exact formulation of the Rules
of the House of Representatives of the United States regarding
impeachment.

I am proposing, Madam President, without doing damage to any of this

provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the
words which read: "to initiate impeachment proceedings" and the comma
(,) and insert on line 19 after the word "resolution" the phrase WITH THE
ARTICLES, and then capitalize the letter "i" in "impeachment" and replace
the word "by" with OF, so that the whole section will now read: "A vote of at
least one-third of all the Members of the House shall be necessary either to
affirm a resolution WITH THE ARTICLES of Impeachment OF the
Committee or to override its contrary resolution. The vote of each Member
shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House
of Representatives of the United States is concerned, really starts from the
filing of the verified complaint and every resolution to impeach always
carries with it the Articles of Impeachment. As a matter of fact, the words
"Articles of Impeachment" are mentioned on line 25 in the case of the direct
filing of a verified compliant of one-third of all the Members of the House. I
will mention again, Madam President, that my amendment will not vary the
substance in any way. It is only in keeping with the uniform procedure of
the House of Representatives of the United States Congress. Thank you,
Madam President.143 (Italics in the original; emphasis and udnerscoring
supplied)
This amendment proposed by Commissioner Maambong was clarified and
accepted by the Committee on the Accountability of Public Officers.144

It is thus clear that the framers intended "initiation" to start with the filing of
the complaint. In his amicus curiae brief, Commissioner Maambong
explained that "the obvious reason in deleting the phrase "to initiate
impeachment proceedings" as contained in the text of the provision of
Section 3 (3) was to settle and make it understood once and for all that the
initiation of impeachment proceedings starts with the filing of the complaint,
and the vote of one-third of the House in a resolution of impeachment does
not initiate the impeachment proceedings which was already initiated by the
filing of a verified complaint under Section 3, paragraph (2), Article XI of the
Constitution."145

Amicus curiae Constitutional Commissioner Regalado is of the same view

as is Father Bernas, who was also a member of the 1986 Constitutional
Commission, that the word "initiate" as used in Article XI, Section 3(5)
means to file, both adding, however, that the filing must be accompanied by
an action to set the complaint moving.

During the oral arguments before this Court, Father Bernas clarified that
the word "initiate," appearing in the constitutional provision on
impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power
to initiate all cases of impeachment.

xxx

(5) No impeachment proceedings shall be initiated against the same official

more than once within a period of one year, (Emphasis supplied)

refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to
initiate." The object in the first sentence is "impeachment case." The object
in the second sentence is "impeachment proceeding." Following the
principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the
legal controversy that must be decided by the Senate. Above-quoted first
provision provides that the House, by a vote of one-third of all its members,
can bring a case to the Senate. It is in that sense that the House has
"exclusive power" to initiate all cases of impeachment. No other body can
do it. However, before a decision is made to initiate a case in the Senate, a
"proceeding" must be followed to arrive at a conclusion. A proceeding must
be "initiated." To initiate, which comes from the Latin word initium, means
to begin. On the other hand, proceeding is a progressive noun. It has a
beginning, a middle, and an end. It takes place not in the Senate but in the
House and consists of several steps: (1) there is the filing of a verified
complaint either by a Member of the House of Representatives or by a
private citizen endorsed by a Member of the House of the Representatives;
(2) there is the processing of this complaint by the proper Committee which
may either reject the complaint or uphold it; (3) whether the resolution of
the Committee rejects or upholds the complaint, the resolution must be
forwarded to the House for further processing; and (4) there is the
processing of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides a
contrary resolution by a vote of one-third of all the members. If at least one
third of all the Members upholds the complaint, Articles of Impeachment
are prepared and transmitted to the Senate. It is at this point that the House
"initiates an impeachment case." It is at this point that an impeachable
public official is successfully impeached. That is, he or she is successfully
charged with an impeachment "case" before the Senate as impeachment
court.

Father Bernas further explains: The "impeachment proceeding" is not

initiated when the complaint is transmitted to the Senate for trial because
that is the end of the House proceeding and the beginning of another
proceeding, namely the trial. Neither is the "impeachment proceeding"
initiated when the House deliberates on the resolution passed on to it by
the Committee, because something prior to that has already been done.
The action of the House is already a further step in the proceeding, not its
initiation or beginning. Rather, the proceeding is initiated or begins, when a
verified complaint is filed and referred to the Committee on Justice for
action. This is the initiating step which triggers the series of steps that
follow.

The framers of the Constitution also understood initiation in its ordinary

meaning. Thus when a proposal reached the floor proposing that "A vote of
at least one-third of all the Members of the House shall be necessary to
initiate impeachment proceedings," this was met by a proposal to delete
the line on the ground that the vote of the House does not initiate
impeachment proceeding but rather the filing of a complaint does.146 Thus
the line was deleted and is not found in the present Constitution.

Father Bernas concludes that when Section 3 (5) says, "No impeachment
proceeding shall be initiated against the same official more than once
within a period of one year," it means that no second verified complaint
may be accepted and referred to the Committee on Justice for action. By
his explanation, this interpretation is founded on the common
understanding of the meaning of "to initiate" which means to begin. He
reminds that the Constitution is ratified by the people, both ordinary and
sophisticated, as they understand it; and that ordinary people read ordinary
meaning into ordinary words and not abstruse meaning, they ratify words
as they understand it and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can

initiate impeachment proceedings because Section 3 (1) says "The House
of Representatives shall have the exclusive power to initiate all cases of
impeachment," This is a misreading of said provision and is contrary to the
principle of reddendo singula singulis by equating "impeachment cases"
with "impeachment proceeding."

From the records of the Constitutional Commission, to the amicus curiae

briefs of two former Constitutional Commissioners, it is without a doubt that
the term "to initiate" refers to the filing of the impeachment complaint
coupled with Congress' taking initial action of said complaint.

Having concluded that the initiation takes place by the act of filing and
referral or endorsement of the impeachment complaint to the House
Committee on Justice or, by the filing by at least one-third of the members
of the House of Representatives with the Secretary General of the House,
the meaning of Section 3 (5) of Article XI becomes clear. Once an
impeachment complaint has been initiated, another impeachment
complaint may not be filed against the same official within a one year
period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules,

impeachment proceedings are deemed initiated (1) if there is a finding by
the House Committee on Justice that the verified complaint and/or
resolution is sufficient in substance, or (2) once the House itself affirms or
overturns the finding of the Committee on Justice that the verified complaint
and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of
Representatives of a verified complaint or a resolution of impeachment by
at least 1/3 of the members of the House. These rules clearly contravene
Section 3 (5) of Article XI since the rules give the term "initiate" a meaning
different meaning from filing and referral.

In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court
could not use contemporaneous construction as an aid in the interpretation
of Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein this Court
stated that "their personal opinions (referring to Justices who were
delegates to the Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different footing from the
properly recorded utterances of debates and proceedings." Further citing
said case, he states that this Court likened the former members of the
Constitutional Convention to actors who are so absorbed in their emotional
roles that intelligent spectators may know more about the real meaning
because of the latter's balanced perspectives and disinterestedness.148

Justice Gutierrez's statements have no application in the present petitions.

There are at present only two members of this Court who participated in the
1986 Constitutional Commission Chief Justice Davide and Justice Adolf
Azcuna. Chief Justice Davide has not taken part in these proceedings for
obvious reasons. Moreover, this Court has not simply relied on the
personal opinions now given by members of the Constitutional
Commission, but has examined the records of the deliberations and
proceedings thereof.

Respondent House of Representatives counters that under Section 3 (8) of

Article XI, it is clear and unequivocal that it and only it has the power to
make and interpret its rules governing impeachment. Its argument is
premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.

Section 3 (8) of Article XI provides that "The Congress shall promulgate its
rules on impeachment to effectively carry out the purpose of this section."
Clearly, its power to promulgate its rules on impeachment is limited by the
phrase "to effectively carry out the purpose of this section." Hence, these
rules cannot contravene the very purpose of the Constitution which said
rules were intended to effectively carry out. Moreover, Section 3 of Article
XI clearly provides for other specific limitations on its power to make rules,
viz:

Section 3. (1) x x x

(2) A verified complaint for impeachment may be filed by any Member of

the House of Representatives or by any citizen upon a resolution of
endorsement by any Member thereof, which shall be included in the Order
of Business within ten session days, and referred to the proper Committee
within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be
necessary to either affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution. The
vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at

least one-third of all the Members of the House, the same shall constitute
the Articles of Impeachment, and trial by the Senate shall forthwith
proceed.

(5) No impeachment proceedings shall be initiated against the same official

more than once within a period of one year.

It is basic that all rules must not contravene the Constitution which is the
fundamental law. If as alleged Congress had absolute rule making power,
then it would by necessary implication have the power to alter or amend the
meaning of the Constitution without need of referendum.

In Osmea v. Pendatun,149 this Court held that it is within the province of

either House of Congress to interpret its rules and that it was the best judge
of what constituted "disorderly behavior" of its members. However, in
Paceta v. Secretary of the Commission on Appointments,150 Justice (later
Chief Justice) Enrique Fernando, speaking for this Court and quoting
Justice Brandeis in United States v. Smith,151 declared that where the
construction to be given to a rule affects persons other than members of
the Legislature, the question becomes judicial in nature. In Arroyo v. De
Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice
Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not by
its rules ignore constitutional restraints or violate fundamental rights, and
further that there should be a reasonable relation between the mode or
method of proceeding established by the rule and the result which is sought
to be attained. It is only within these limitations that all matters of method
are open to the determination of the Legislature. In the same case of
Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and
Dissenting Opinion, was even more emphatic as he stressed that in the
Philippine setting there is even more reason for courts to inquire into the
validity of the Rules of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are
non-justiciable. Nor do I agree that we will trivialize the principle of
separation of power if we assume jurisdiction over he case at bar. Even in
the United States, the principle of separation of power is no longer an
impregnable impediment against the interposition of judicial power on
cases involving breach of rules of procedure by legislators.

Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a

window to view the issues before the Court. It is in Ballin where the US
Supreme Court first defined the boundaries of the power of the judiciary to
review congressional rules. It held:

"x x x

"The Constitution, in the same section, provides, that each house may
determine the rules of its proceedings." It appears that in pursuance of this
authority the House had, prior to that day, passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of the Speaker, the

names of members sufficient to make a quorum in the hall of the House
who do not vote shall be noted by the clerk and recorded in the journal, and
reported to the Speaker with the names of the members voting, and be
counted and announced in determining the presence of a quorum to do
business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question,
therefore, is as to the validity of this rule, and not what methods the
Speaker may of his own motion resort to for determining the presence of a
quorum, nor what matters the Speaker or clerk may of their own volition
place upon the journal. Neither do the advantages or disadvantages, the
wisdom or folly, of such a rule present any matters for judicial
consideration. With the courts the question is only one of power. The
Constitution empowers each house to determine its rules of proceedings. It
may not by its rules ignore constitutional restraints or violate fundamental
rights, and there should be a reasonable relation between the mode or
method of proceedings established by the rule and the result which is
sought to be attained. But within these limitations all matters of method are
open to the determination of the House, and it is no impeachment of the
rule to say that some other way would be better, more accurate, or even
more just. It is no objection to the validity of a rule that a different one has
been prescribed and in force for a length of time. The power to make rules
is not one which once exercised is exhausted. It is a continuous power,
always subject to be exercised by the House, and within the limitations
suggested, absolute and beyond the challenge of any other body or
tribunal."

Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity
of congressional rules, i.e, whether they are constitutional. Rule XV was
examined by the Court and it was found to satisfy the test: (1) that it did not
ignore any constitutional restraint; (2) it did not violate any fundamental
right; and (3) its method had a reasonable relationship with the result
sought to be attained. By examining Rule XV, the Court did not allow its
jurisdiction to be defeated by the mere invocation of the principle of
separation of powers.154

xxx

In the Philippine setting, there is a more compelling reason for courts to

categorically reject the political question defense when its interposition will
cover up abuse of power. For section 1, Article VIII of our Constitution was
intentionally cobbled to empower courts "x x x to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government."
This power is new and was not granted to our courts in the 1935 and 1972
Constitutions. It was not also xeroxed from the US Constitution or any
foreign state constitution. The CONCOM granted this enormous power to
our courts in view of our experience under martial law where abusive
exercises of state power were shielded from judicial scrutiny by the misuse
of the political question doctrine. Led by the eminent former Chief Justice
Roberto Concepcion, the CONCOM expanded and sharpened the checking
powers of the judiciary vis--vis the Executive and the Legislative
departments of government.155

xxx

The Constitution cannot be any clearer. What it granted to this Court is not
a mere power which it can decline to exercise. Precisely to deter this
disinclination, the Constitution imposed it as a duty of this Court to strike
down any act of a branch or instrumentality of government or any of its
officials done with grave abuse of discretion amounting to lack or excess of
jurisdiction. Rightly or wrongly, the Constitution has elongated the checking
powers of this Court against the other branches of government despite their
more democratic character, the President and the legislators being elected
by the people.156

xxx

The provision defining judicial power as including the 'duty of the courts of
justice. . . to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government' constitutes the capstone of
the efforts of the Constitutional Commission to upgrade the powers of this
court vis--vis the other branches of government. This provision was
dictated by our experience under martial law which taught us that a
stronger and more independent judiciary is needed to abort abuses in
government. x x x

xxx

In sum, I submit that in imposing to this Court the duty to annul acts of
government committed with grave abuse of discretion, the new Constitution
transformed this Court from passivity to activism. This transformation,
dictated by our distinct experience as nation, is not merely evolutionary but
revolutionary. Under the 1935 and the 1973 Constitutions, this Court
approached constitutional violations by initially determining what it cannot
do; under the 1987 Constitution, there is a shift in stress this Court is
mandated to approach constitutional violations not by finding out what it
should not do but what it must do. The Court must discharge this solemn
duty by not resuscitating a past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this
new constitutional provision as the case at bar once more calls us to define
the parameters of our power to review violations of the rules of the House.
We will not be true to our trust as the last bulwark against government
abuses if we refuse to exercise this new power or if we wield it with timidity.
To be sure, it is this exceeding timidity to unsheathe the judicial sword that
has increasingly emboldened other branches of government to denigrate, if
not defy, orders of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the latitude of judicial
power is distinctly Filipino and its interpretation should not be depreciated
by undue reliance on inapplicable foreign jurisprudence. In resolving the
case at bar, the lessons of our own history should provide us the light and
not the experience of foreigners.157 (Italics in the original emphasis and
underscoring supplied)

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant

petitions. Here, the third parties alleging the violation of private rights and
the Constitution are involved.

Neither may respondent House of Representatives' rely on Nixon v. US158

as basis for arguing that this Court may not decide on the constitutionality
of Sections 16 and 17 of the House Impeachment Rules. As already
observed, the U.S. Federal Constitution simply provides that "the House of
Representatives shall have the sole power of impeachment." It adds
nothing more. It gives no clue whatsoever as to how this "sole power" is to
be exercised. No limitation whatsoever is given. Thus, the US Supreme
Court concluded that there was a textually demonstrable constitutional
commitment of a constitutional power to the House of Representatives.
This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier
enumerated, furnishes several provisions articulating how that "exclusive
power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment
Rules which state that impeachment proceedings are deemed initiated (1) if
there is a finding by the House Committee on Justice that the verified
complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in substance or (3) by
the filing or endorsement before the Secretary-General of the House of
Representatives of a verified complaint or a resolution of impeachment by
at least 1/3 of the members of the House thus clearly contravene Section 3
(5) of Article XI as they give the term "initiate" a meaning different from
"filing."

Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the
impeachment complaint and referral to the House Committee on Justice,
the initial action taken thereon, the meaning of Section 3 (5) of Article XI
becomes clear. Once an impeachment complaint has been initiated in the
foregoing manner, another may not be filed against the same official within
a one year period following Article XI, Section 3(5) of the Constitution.

In fine, considering that the first impeachment complaint, was filed by

former President Estrada against Chief Justice Hilario G. Davide, Jr., along
with seven associate justices of this Court, on June 2, 2003 and referred to
the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr.
and Felix William Fuentebella against the Chief Justice on October 23,
2003 violates the constitutional prohibition against the initiation of
impeachment proceedings against the same impeachable officer within a
one-year period.

Conclusion

If there is anything constant about this country, it is that there is always a

phenomenon that takes the center stage of our individual and collective
consciousness as a people with our characteristic flair for human drama,
conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally
exhausting experience. Both sides have fought bitterly a dialectical struggle
to articulate what they respectively believe to be the correct position or view
on the issues involved. Passions had ran high as demonstrators, whether
for or against the impeachment of the Chief Justice, took to the streets
armed with their familiar slogans and chants to air their voice on the matter.
Various sectors of society - from the business, retired military, to the
academe and denominations of faith offered suggestions for a return to a
state of normalcy in the official relations of the governmental branches
affected to obviate any perceived resulting instability upon areas of national
life.

Through all these and as early as the time when the Articles of
Impeachment had been constituted, this Court was specifically asked, told,
urged and argued to take no action of any kind and form with respect to the
prosecution by the House of Representatives of the impeachment
complaint against the subject respondent public official. When the present
petitions were knocking so to speak at the doorsteps of this Court, the
same clamor for non-interference was made through what are now the
arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-
restraint" aimed at halting the Court from any move that may have a
bearing on the impeachment proceedings.

This Court did not heed the call to adopt a hands-off stance as far as the
question of the constitutionality of initiating the impeachment complaint
against Chief Justice Davide is concerned. To reiterate what has been
already explained, the Court found the existence in full of all the requisite
conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the
construction or interpretation of a provision of the fundamental law of the
land. What lies in here is an issue of a genuine constitutional material
which only this Court can properly and competently address and adjudicate
in accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls
under the Court's jurisdiction, no other course of action can be had but for it
to pass upon that problem head on.

The claim, therefore, that this Court by judicially entangling itself with the
process of impeachment has effectively set up a regime of judicial
supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and
resolved on the merits only the main issue of whether the impeachment
proceedings initiated against the Chief Justice transgressed the
constitutionally imposed one-year time bar rule. Beyond this, it did not go
about assuming jurisdiction where it had none, nor indiscriminately turn
justiciable issues out of decidedly political questions. Because it is not at all
the business of this Court to assert judicial dominance over the other two
great branches of the government. Rather, the raison d'etre of the judiciary
is to complement the discharge by the executive and legislative of their own
powers to bring about ultimately the beneficent effects of having founded
and ordered our society upon the rule of law.

It is suggested that by our taking cognizance of the issue of constitutionality

of the impeachment proceedings against the Chief Justice, the members of
this Court have actually closed ranks to protect a brethren. That the
members' interests in ruling on said issue is as much at stake as is that of
the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has
long held and been entrusted with the judicial power to resolve conflicting
legal rights regardless of the personalities involved in the suits or actions.
This Court has dispensed justice over the course of time, unaffected by
whomsoever stood to benefit or suffer therefrom, unfraid by whatever
imputations or speculations could be made to it, so long as it rendered
judgment according to the law and the facts. Why can it not now be trusted
to wield judicial power in these petitions just because it is the highest
ranking magistrate who is involved when it is an incontrovertible fact that
the fundamental issue is not him but the validity of a government branch's
official act as tested by the limits set by the Constitution? Of course, there
are rules on the inhibition of any member of the judiciary from taking part in
a case in specified instances. But to disqualify this entire institution now
from the suit at bar is to regard the Supreme Court as likely incapable of
impartiality when one of its members is a party to a case, which is simply a
non sequitur.

No one is above the law or the Constitution. This is a basic precept in any
legal system which recognizes equality of all men before the law as
essential to the law's moral authority and that of its agents to secure
respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting that
principle of legal equality other than the Supreme Court which has
discerned its real meaning and ramifications through its application to
numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any
other member of this Court. But just because he is the Chief Justice does
not imply that he gets to have less in law than anybody else. The law is
solicitous of every individual's rights irrespective of his station in life.

The Filipino nation and its democratic institutions have no doubt been put
to test once again by this impeachment case against Chief Justice Hilario
Davide. Accordingly, this Court has resorted to no other than the
Constitution in search for a solution to what many feared would ripen to a
crisis in government. But though it is indeed immensely a blessing for this
Court to have found answers in our bedrock of legal principles, it is equally
important that it went through this crucible of a democratic process, if only
to discover that it can resolve differences without the use of force and
aggression upon each other.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in

Impeachment Proceedings which were approved by the House of
Representatives on November 28, 2001 are unconstitutional.
Consequently, the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. which was filed by Representatives Gilberto C.
Teodoro, Jr. and Felix William B. Fuentebella with the Office of the
Secretary General of the House of Representatives on October 23, 2003 is
barred under paragraph 5, section 3 of Article XI of the Constitution.

SO ORDERED.

Facts:

On 28 November 2001, the 12th Congress of the House of Representatives

adopted and approved the Rules of Procedure in Impeachment
Proceedings, superseding the previous House Impeachment Rules
approved by the 11th Congress.
On 22 July 2002, the House of Representatives adopted a Resolution,
which directed the Committee on Justice to conduct an investigation, in aid
of legislation, on the manner of disbursements and expenditures by the
Chief Justice of the Supreme Court of the Judiciary Development Fund
(JDF).
On 2 June 2003, former President Joseph E. Estrada filed an impeachment
complaint (first impeachment complaint) against Chief Justice Hilario G.
Davide Jr. and seven Associate Justices of the Supreme Court for
culpable violation of the Constitution, betrayal of the public trust and other
high crimes. The complaint was endorsed by House Representatives, and
was referred to the House Committee on Justice on 5 August 2003 in
accordance with Section 3(2) of Article XI of the Constitution. The House
Committee on Justice ruled on 13 October 2003 that the first impeachment
complaint was sufficient in form, but voted to dismiss the same on 22
October 2003 for being insufficient in substance.
The following day or on 23 October 2003, the second impeachment
complaint was filed with the Secretary General of the House by House
Representatives against Chief Justice Hilario G. Davide, Jr., founded on
the alleged results of the legislative inquiry initiated by above-mentioned
House Resolution. The second impeachment complaint was accompanied
by a Resolution of Endorsement/Impeachment signed by at least 1/3 of all
the Members of the House of Representatives.
Various petitions for certiorari, prohibition, and mandamus were filed with
the Supreme Court against the House of Representatives, et. al., most of
which petitions contend that the filing of the second impeachment
complaint is unconstitutional as it violates the provision of Section 5 of
Article XI of the Constitution that [n]o impeachment proceedings shall be
initiated against the same official more than once within a period of one
year.
Issues:

Whether or not the offenses alleged in the Second impeachment complaint

constitute valid impeachable offenses under the Constitution.
Whether or not Sections 15 and 16 of Rule V of the Rules on Impeachment
adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution.
Whether the second impeachment complaint is barred under Section 3(5)
of Article XI of the Constitution.

Rulings:

This issue is a non-justiciable political question which is beyond the scope

of the judicial power of the Supreme Court under Section 1, Article VIII of
the Constitution.
Any discussion of this issue would require the Court to make a
determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to
the sound discretion of the legislation. Such an intent is clear from the
deliberations of the Constitutional Commission.
Courts will not touch the issue of constitutionality unless it is truly
unavoidable and is the very lis mota or crux of the controversy.
The Rule of Impeachment adopted by the House of Congress is
unconstitutional.
Section 3 of Article XI provides that The Congress shall promulgate its
rules on impeachment to effectively carry out the purpose of this section.
Clearly, its power to promulgate its rules on impeachment is limited by the
phrase to effectively carry out the purpose of this section. Hence, these
rules cannot contravene the very purpose of the Constitution which said
rules were intended to effectively carry out. Moreover, Section 3 of Article
XI clearly provides for other specific limitations on its power to make rules.
It is basic that all rules must not contravene the Constitution which is the
fundamental law. If as alleged Congress had absolute rule making power,
then it would by necessary implication have the power to alter or amend the
meaning of the Constitution without need of referendum.
It falls within the one year bar provided in the Constitution.
Having concluded that the initiation takes place by the act of filing of the
impeachment complaint and referral to the House Committee on Justice,
the initial action taken thereon, the meaning of Section 3 (5) of Article XI
becomes clear. Once an impeachment complaint has been initiated in the
foregoing manner, another may not be filed against the same official within
a one year period following Article XI, Section 3(5) of the Constitution.
Considering that the first impeachment complaint, was filed by former
President Estrada against Chief Justice Hilario G. Davide, Jr., along with
seven associate justices of this Court, on June 2, 2003 and referred to the
House Committee on Justice on August 5, 2003, the second impeachment
complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix
William Fuentebella against the Chief Justice on October 23, 2003 violates
the constitutional prohibition against the initiation of impeachment
proceedings against the same impeachable officer within a one-year
period.

Hence, Sections 16 and 17 of Rule V of the Rules of Procedure in

Impeachment Proceedings which were approved by the House of
Representatives on November 28, 2001 are unconstitutional.
Consequently, the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. which was filed by Representatives Gilberto C.
Teodoro, Jr. and Felix William B. Fuentebella with the Office of the
Secretary General of the House of Representatives on October 23, 2003 is
barred under paragraph 5, section 3 of Article XI of the Constitution.

Serrano v. Gallant Maritime, G.R. No. 167614, March 24, 2009

G.R. No. 167614 March 24, 2009

ANTONIO M. SERRANO, Petitioner,

vs.
Gallant MARITIME SERVICES, INC. and MARLOW NAVIGATION CO.,
INC., Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

For decades, the toil of solitary migrants has helped lift entire families and
communities out of poverty. Their earnings have built houses, provided
health care, equipped schools and planted the seeds of businesses. They
have woven together the world by transmitting ideas and knowledge from
country to country. They have provided the dynamic human link between
cultures, societies and economies. Yet, only recently have we begun to
understand not only how much international migration impacts
development, but how smart public policies can magnify this effect.

United Nations Secretary-General Ban Ki-Moon

Global Forum on Migration and Development
Brussels, July 10, 20071

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the
5th paragraph of Section 10, Republic Act (R.A.) No. 8042,2 to wit:

Sec. 10. Money Claims. - x x x In case of termination of overseas

employment without just, valid or authorized cause as defined by law or
contract, the workers shall be entitled to the full reimbursement of his
placement fee with interest of twelve percent (12%) per annum, plus his
salaries for the unexpired portion of his employment contract or for three
(3) months for every year of the unexpired term, whichever is less.

x x x x (Emphasis and underscoring supplied)

does not magnify the contributions of overseas Filipino workers (OFWs) to

national development, but exacerbates the hardships borne by them by
unduly limiting their entitlement in case of illegal dismissal to their lump-
sum salary either for the unexpired portion of their employment contract "or
for three months for every year of the unexpired term, whichever is less"
(subject clause). Petitioner claims that the last clause violates the OFWs'
constitutional rights in that it impairs the terms of their contract, deprives
them of equal protection and denies them due process.

By way of Petition for Review under Rule 45 of the Rules of Court,

petitioner assails the December 8, 2004 Decision3 and April 1, 2005
Resolution4 of the Court of Appeals (CA), which applied the subject clause,
entreating this Court to declare the subject clause unconstitutional.

Petitioner was hired by Gallant Maritime Services, Inc. and Marlow

Navigation Co., Ltd. (respondents) under a Philippine Overseas
Employment Administration (POEA)-approved Contract of Employment
with the following terms and conditions:

Duration of contract 12 months

Position Chief Officer
Basic monthly salary US$1,400.00
Hours of work 48.0 hours per week
Overtime US$700.00 per month
Vacation leave with pay 7.00 days per month5
On March 19, 1998, the date of his departure, petitioner was constrained to
accept a downgraded employment contract for the position of Second
Officer with a monthly salary of US$1,000.00, upon the assurance and
representation of respondents that he would be made Chief Officer by the
end of April 1998.6

Respondents did not deliver on their promise to make petitioner Chief

Officer.7 Hence, petitioner refused to stay on as Second Officer and was
repatriated to the Philippines on May 26, 1998.8
Petitioner's employment contract was for a period of 12 months or from
March 19, 1998 up to March 19, 1999, but at the time of his repatriation on
May 26, 1998, he had served only two (2) months and seven (7) days of his
contract, leaving an unexpired portion of nine (9) months and twenty-three
(23) days.

Petitioner filed with the Labor Arbiter (LA) a Complaint9 against

respondents for constructive dismissal and for payment of his money
claims in the total amount of US$26,442.73, broken down as follows:

May 27/31, 1998 (5 days) incl. Leave pay US$ 413.90

June 01/30, 1998 2,590.00
July 01/31, 1998 2,590.00
August 01/31, 1998 2,590.00
Sept. 01/30, 1998 2,590.00
Oct. 01/31, 1998 2,590.00
Nov. 01/30, 1998 2,590.00
Dec. 01/31, 1998 2,590.00
Jan. 01/31, 1999 2,590.00
Feb. 01/28, 1999 2,590.00
Mar. 1/19, 1999 (19 days) incl. leave pay 1,640.00
--------------------------------------------------------------------------------
25,382.23
Amount adjusted to chief mate's salary
(March 19/31, 1998 to April 1/30, 1998) + 1,060.5010
--------------------------------------------------------------------------------------------
--
TOTAL CLAIM US$ 26,442.7311
as well as moral and exemplary damages and attorney's fees.

The LA rendered a Decision dated July 15, 1999, declaring the dismissal of
petitioner illegal and awarding him monetary benefits, to wit:

WHEREFORE, premises considered, judgment is hereby rendered

declaring that the dismissal of the complainant (petitioner) by the
respondents in the above-entitled case was illegal and the respondents are
hereby ordered to pay the complainant [petitioner], jointly and severally, in
Philippine Currency, based on the rate of exchange prevailing at the time of
payment, the amount of EIGHT THOUSAND SEVEN HUNDRED
SEVENTY U.S. DOLLARS (US $8,770.00), representing the complainants
salary for three (3) months of the unexpired portion of the aforesaid
contract of employment.1avvphi1

The respondents are likewise ordered to pay the complainant [petitioner],

jointly and severally, in Philippine Currency, based on the rate of exchange
prevailing at the time of payment, the amount of FORTY FIVE U.S.
DOLLARS (US$ 45.00),12 representing the complainants claim for a
salary differential. In addition, the respondents are hereby ordered to pay
the complainant, jointly and severally, in Philippine Currency, at the
exchange rate prevailing at the time of payment, the complainants
(petitioner's) claim for attorneys fees equivalent to ten percent (10%) of the
total amount awarded to the aforesaid employee under this Decision.

The claims of the complainant for moral and exemplary damages are
hereby DISMISSED for lack of merit.

All other claims are hereby DISMISSED.

SO ORDERED.13 (Emphasis supplied)

In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his

computation on the salary period of three months only -- rather than the
entire unexpired portion of nine months and 23 days of petitioner's
employment contract - applying the subject clause. However, the LA
applied the salary rate of US$2,590.00, consisting of petitioner's "[b]asic
salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, +
US$490.00/month, vacation leave pay = US$2,590.00/compensation per
month."14

Respondents appealed15 to the National Labor Relations Commission

(NLRC) to question the finding of the LA that petitioner was illegally
dismissed.

Petitioner also appealed16 to the NLRC on the sole issue that the LA erred
in not applying the ruling of the Court in Triple Integrated Services, Inc. v.
National Labor Relations Commission17 that in case of illegal dismissal,
OFWs are entitled to their salaries for the unexpired portion of their
contracts.18
In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to
wit:

WHEREFORE, the Decision dated 15 July 1999 is MODIFIED.

Respondents are hereby ordered to pay complainant, jointly and severally,
in Philippine currency, at the prevailing rate of exchange at the time of
payment the following:

1. Three (3) months salary

$1,400 x 3 US$4,200.00
2. Salary differential 45.00
US$4,245.00
3. 10% Attorneys fees 424.50
TOTAL US$4,669.50
The other findings are affirmed.

SO ORDERED.19

The NLRC corrected the LA's computation of the lump-sum salary awarded
to petitioner by reducing the applicable salary rate from US$2,590.00 to
US$1,400.00 because R.A. No. 8042 "does not provide for the award of
overtime pay, which should be proven to have been actually performed,
and for vacation leave pay."20

Petitioner filed a Motion for Partial Reconsideration, but this time he

questioned the constitutionality of the subject clause.21 The NLRC denied
the motion.22

Petitioner filed a Petition for Certiorari23 with the CA, reiterating the
constitutional challenge against the subject clause.24 After initially
dismissing the petition on a technicality, the CA eventually gave due course
to it, as directed by this Court in its Resolution dated August 7, 2003 which
granted the petition for certiorari, docketed as G.R. No. 151833, filed by
petitioner.

In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on

the reduction of the applicable salary rate; however, the CA skirted the
constitutional issue raised by petitioner.25

His Motion for Reconsideration26 having been denied by the CA,27

petitioner brings his cause to this Court on the following grounds:

The Court of Appeals and the labor tribunals have decided the case in a
way not in accord with applicable decision of the Supreme Court involving
similar issue of granting unto the migrant worker back wages equal to the
unexpired portion of his contract of employment instead of limiting it to
three (3) months

II

In the alternative that the Court of Appeals and the Labor Tribunals were
merely applying their interpretation of Section 10 of Republic Act No. 8042,
it is submitted that the Court of Appeals gravely erred in law when it failed
to discharge its judicial duty to decide questions of substance not
theretofore determined by the Honorable Supreme Court, particularly, the
constitutional issues raised by the petitioner on the constitutionality of said
law, which unreasonably, unfairly and arbitrarily limits payment of the
award for back wages of overseas workers to three (3) months.

III

Even without considering the constitutional limitations [of] Sec. 10 of

Republic Act No. 8042, the Court of Appeals gravely erred in law in
excluding from petitioners award the overtime pay and vacation pay
provided in his contract since under the contract they form part of his
salary.28

On February 26, 2008, petitioner wrote the Court to withdraw his petition as
he is already old and sickly, and he intends to make use of the monetary
award for his medical treatment and medication.29 Required to comment,
counsel for petitioner filed a motion, urging the court to allow partial
execution of the undisputed monetary award and, at the same time, praying
that the constitutional question be resolved.30

Considering that the parties have filed their respective memoranda, the
Court now takes up the full merit of the petition mindful of the extreme
importance of the constitutional question raised therein.
On the first and second issues

The unanimous finding of the LA, NLRC and CA that the dismissal of
petitioner was illegal is not disputed. Likewise not disputed is the salary
differential of US$45.00 awarded to petitioner in all three fora. What
remains disputed is only the computation of the lump-sum salary to be
awarded to petitioner by reason of his illegal dismissal.

Applying the subject clause, the NLRC and the CA computed the lump-sum
salary of petitioner at the monthly rate of US$1,400.00 covering the period
of three months out of the unexpired portion of nine months and 23 days of
his employment contract or a total of US$4,200.00.

Impugning the constitutionality of the subject clause, petitioner contends

that, in addition to the US$4,200.00 awarded by the NLRC and the CA, he
is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to
his salaries for the entire nine months and 23 days left of his employment
contract, computed at the monthly rate of US$2,590.00.31

The Arguments of Petitioner

Petitioner contends that the subject clause is unconstitutional because it

unduly impairs the freedom of OFWs to negotiate for and stipulate in their
overseas employment contracts a determinate employment period and a
fixed salary package.32 It also impinges on the equal protection clause, for
it treats OFWs differently from local Filipino workers (local workers) by
putting a cap on the amount of lump-sum salary to which OFWs are entitled
in case of illegal dismissal, while setting no limit to the same monetary
award for local workers when their dismissal is declared illegal; that the
disparate treatment is not reasonable as there is no substantial distinction
between the two groups;33 and that it defeats Section 18,34 Article II of the
Constitution which guarantees the protection of the rights and welfare of all
Filipino workers, whether deployed locally or overseas.35

Moreover, petitioner argues that the decisions of the CA and the labor
tribunals are not in line with existing jurisprudence on the issue of money
claims of illegally dismissed OFWs. Though there are conflicting rulings on
this, petitioner urges the Court to sort them out for the guidance of affected
OFWs.36
Petitioner further underscores that the insertion of the subject clause into
R.A. No. 8042 serves no other purpose but to benefit local placement
agencies. He marks the statement made by the Solicitor General in his
Memorandum, viz.:

Often, placement agencies, their liability being solidary, shoulder the

payment of money claims in the event that jurisdiction over the foreign
employer is not acquired by the court or if the foreign employer reneges on
its obligation. Hence, placement agencies that are in good faith and which
fulfill their obligations are unnecessarily penalized for the acts of the foreign
employer. To protect them and to promote their continued helpful
contribution in deploying Filipino migrant workers, liability for money claims
was reduced under Section 10 of R.A. No. 8042. 37 (Emphasis supplied)

Petitioner argues that in mitigating the solidary liability of placement

agencies, the subject clause sacrifices the well-being of OFWs. Not only
that, the provision makes foreign employers better off than local employers
because in cases involving the illegal dismissal of employees, foreign
employers are liable for salaries covering a maximum of only three months
of the unexpired employment contract while local employers are liable for
the full lump-sum salaries of their employees. As petitioner puts it:

In terms of practical application, the local employers are not limited to the
amount of backwages they have to give their employees they have illegally
dismissed, following well-entrenched and unequivocal jurisprudence on the
matter. On the other hand, foreign employers will only be limited to giving
the illegally dismissed migrant workers the maximum of three (3) months
unpaid salaries notwithstanding the unexpired term of the contract that can
be more than three (3) months.38

Lastly, petitioner claims that the subject clause violates the due process
clause, for it deprives him of the salaries and other emoluments he is
entitled to under his fixed-period employment contract.39

The Arguments of Respondents

In their Comment and Memorandum, respondents contend that the

constitutional issue should not be entertained, for this was belatedly
interposed by petitioner in his appeal before the CA, and not at the earliest
opportunity, which was when he filed an appeal before the NLRC.40
The Arguments of the Solicitor General

The Solicitor General (OSG)41 points out that as R.A. No. 8042 took effect
on July 15, 1995, its provisions could not have impaired petitioner's 1998
employment contract. Rather, R.A. No. 8042 having preceded petitioner's
contract, the provisions thereof are deemed part of the minimum terms of
petitioner's employment, especially on the matter of money claims, as this
was not stipulated upon by the parties.42

Moreover, the OSG emphasizes that OFWs and local workers differ in
terms of the nature of their employment, such that their rights to monetary
benefits must necessarily be treated differently. The OSG enumerates the
essential elements that distinguish OFWs from local workers: first, while
local workers perform their jobs within Philippine territory, OFWs perform
their jobs for foreign employers, over whom it is difficult for our courts to
acquire jurisdiction, or against whom it is almost impossible to enforce
judgment; and second, as held in Coyoca v. National Labor Relations
Commission43 and Millares v. National Labor Relations Commission,44
OFWs are contractual employees who can never acquire regular
employment status, unlike local workers who are or can become regular
employees. Hence, the OSG posits that there are rights and privileges
exclusive to local workers, but not available to OFWs; that these
peculiarities make for a reasonable and valid basis for the differentiated
treatment under the subject clause of the money claims of OFWs who are
illegally dismissed. Thus, the provision does not violate the equal protection
clause nor Section 18, Article II of the Constitution.45

Lastly, the OSG defends the rationale behind the subject clause as a police
power measure adopted to mitigate the solidary liability of placement
agencies for this "redounds to the benefit of the migrant workers whose
welfare the government seeks to promote. The survival of legitimate
placement agencies helps [assure] the government that migrant workers
are properly deployed and are employed under decent and humane
conditions."46

The Court's Ruling

The Court sustains petitioner on the first and second issues.

When the Court is called upon to exercise its power of judicial review of the
acts of its co-equals, such as the Congress, it does so only when these
conditions obtain: (1) that there is an actual case or controversy involving a
conflict of rights susceptible of judicial determination;47 (2) that the
constitutional question is raised by a proper party48 and at the earliest
opportunity;49 and (3) that the constitutional question is the very lis mota of
the case,50 otherwise the Court will dismiss the case or decide the same
on some other ground.51

Without a doubt, there exists in this case an actual controversy directly

involving petitioner who is personally aggrieved that the labor tribunals and
the CA computed his monetary award based on the salary period of three
months only as provided under the subject clause.

The constitutional challenge is also timely. It should be borne in mind that

the requirement that a constitutional issue be raised at the earliest
opportunity entails the interposition of the issue in the pleadings before a
competent court, such that, if the issue is not raised in the pleadings before
that competent court, it cannot be considered at the trial and, if not
considered in the trial, it cannot be considered on appeal.52 Records
disclose that the issue on the constitutionality of the subject clause was first
raised, not in petitioner's appeal with the NLRC, but in his Motion for Partial
Reconsideration with said labor tribunal,53 and reiterated in his Petition for
Certiorari before the CA.54 Nonetheless, the issue is deemed seasonably
raised because it is not the NLRC but the CA which has the competence to
resolve the constitutional issue. The NLRC is a labor tribunal that merely
performs a quasi-judicial function its function in the present case is limited
to determining questions of fact to which the legislative policy of R.A. No.
8042 is to be applied and to resolving such questions in accordance with
the standards laid down by the law itself;55 thus, its foremost function is to
administer and enforce R.A. No. 8042, and not to inquire into the validity of
its provisions. The CA, on the other hand, is vested with the power of
judicial review or the power to declare unconstitutional a law or a provision
thereof, such as the subject clause.56 Petitioner's interposition of the
constitutional issue before the CA was undoubtedly seasonable. The CA
was therefore remiss in failing to take up the issue in its decision.

The third condition that the constitutional issue be critical to the resolution
of the case likewise obtains because the monetary claim of petitioner to his
lump-sum salary for the entire unexpired portion of his 12-month
employment contract, and not just for a period of three months, strikes at
the very core of the subject clause.

Thus, the stage is all set for the determination of the constitutionality of the
subject clause.

Does the subject clause violate Section 10,

Article III of the Constitution on non-impairment
of contracts?

The answer is in the negative.

Petitioner's claim that the subject clause unduly interferes with the
stipulations in his contract on the term of his employment and the fixed
salary package he will receive57 is not tenable.

Section 10, Article III of the Constitution provides:

No law impairing the obligation of contracts shall be passed.

The prohibition is aligned with the general principle that laws newly enacted
have only a prospective operation,58 and cannot affect acts or contracts
already perfected;59 however, as to laws already in existence, their
provisions are read into contracts and deemed a part thereof.60 Thus, the
non-impairment clause under Section 10, Article II is limited in application
to laws about to be enacted that would in any way derogate from existing
acts or contracts by enlarging, abridging or in any manner changing the
intention of the parties thereto.

As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995
preceded the execution of the employment contract between petitioner and
respondents in 1998. Hence, it cannot be argued that R.A. No. 8042,
particularly the subject clause, impaired the employment contract of the
parties. Rather, when the parties executed their 1998 employment contract,
they were deemed to have incorporated into it all the provisions of R.A. No.
8042.

But even if the Court were to disregard the timeline, the subject clause may
not be declared unconstitutional on the ground that it impinges on the
impairment clause, for the law was enacted in the exercise of the police
power of the State to regulate a business, profession or calling, particularly
the recruitment and deployment of OFWs, with the noble end in view of
ensuring respect for the dignity and well-being of OFWs wherever they may
be employed.61 Police power legislations adopted by the State to promote
the health, morals, peace, education, good order, safety, and general
welfare of the people are generally applicable not only to future contracts
but even to those already in existence, for all private contracts must yield to
the superior and legitimate measures taken by the State to promote public
welfare.62

Does the subject clause violate Section 1,

Article III of the Constitution, and Section 18,
Article II and Section 3, Article XIII on labor
as a protected sector?

The answer is in the affirmative.

Section 1, Article III of the Constitution guarantees:

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 law.

Section 18,63 Article II and Section 3,64 Article XIII accord all members of
the labor sector, without distinction as to place of deployment, full
protection of their rights and welfare.

To Filipino workers, the rights guaranteed under the foregoing

constitutional provisions translate to economic security and parity: all
monetary benefits should be equally enjoyed by workers of similar
category, while all monetary obligations should be borne by them in equal
degree; none should be denied the protection of the laws which is enjoyed
by, or spared the burden imposed on, others in like circumstances.65

Such rights are not absolute but subject to the inherent power of Congress
to incorporate, when it sees fit, a system of classification into its legislation;
however, to be valid, the classification must comply with these
requirements: 1) it is based on substantial distinctions; 2) it is germane to
the purposes of the law; 3) it is not limited to existing conditions only; and
4) it applies equally to all members of the class.66
There are three levels of scrutiny at which the Court reviews the
constitutionality of a classification embodied in a law: a) the deferential or
rational basis scrutiny in which the challenged classification needs only be
shown to be rationally related to serving a legitimate state interest;67 b) the
middle-tier or intermediate scrutiny in which the government must show
that the challenged classification serves an important state interest and that
the classification is at least substantially related to serving that interest;68
and c) strict judicial scrutiny69 in which a legislative classification which
impermissibly interferes with the exercise of a fundamental right70 or
operates to the peculiar disadvantage of a suspect class71 is presumed
unconstitutional, and the burden is upon the government to prove that the
classification is necessary to achieve a compelling state interest and that it
is the least restrictive means to protect such interest.72

Under American jurisprudence, strict judicial scrutiny is triggered by

suspect classifications73 based on race74 or gender75 but not when the
classification is drawn along income categories.76

It is different in the Philippine setting. In Central Bank (now Bangko Sentral

ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas,77
the constitutionality of a provision in the charter of the Bangko Sentral ng
Pilipinas (BSP), a government financial institution (GFI), was challenged for
maintaining its rank-and-file employees under the Salary Standardization
Law (SSL), even when the rank-and-file employees of other GFIs had been
exempted from the SSL by their respective charters. Finding that the
disputed provision contained a suspect classification based on salary
grade, the Court deliberately employed the standard of strict judicial
scrutiny in its review of the constitutionality of said provision. More
significantly, it was in this case that the Court revealed the broad outlines of
its judicial philosophy, to wit:

Congress retains its wide discretion in providing for a valid classification,

and its policies should be accorded recognition and respect by the courts of
justice except when they run afoul of the Constitution. The deference stops
where the classification violates a fundamental right, or prejudices persons
accorded special protection by the Constitution. When these violations
arise, this Court must discharge its primary role as the vanguard of
constitutional guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should not suffice.
Admittedly, the view that prejudice to persons accorded special protection
by the Constitution requires a stricter judicial scrutiny finds no support in
American or English jurisprudence. Nevertheless, these foreign decisions
and authorities are not per se controlling in this jurisdiction. At best, they
are persuasive and have been used to support many of our decisions. We
should not place undue and fawning reliance upon them and regard them
as indispensable mental crutches without which we cannot come to our
own decisions through the employment of our own endowments. We live in
a different ambience and must decide our own problems in the light of our
own interests and needs, and of our qualities and even idiosyncrasies as a
people, and always with our own concept of law and justice. Our laws must
be construed in accordance with the intention of our own lawmakers and
such intent may be deduced from the language of each law and the context
of other local legislation related thereto. More importantly, they must be
construed to serve our own public interest which is the be-all and the end-
all of all our laws. And it need not be stressed that our public interest is
distinct and different from others.

xxxx

Further, the quest for a better and more "equal" world calls for the use of
equal protection as a tool of effective judicial intervention.

Equality is one ideal which cries out for bold attention and action in the
Constitution. The Preamble proclaims "equality" as an ideal precisely in
protest against crushing inequities in Philippine society. The command to
promote social justice in Article II, Section 10, in "all phases of national
development," further explicitated in Article XIII, are clear commands to the
State to take affirmative action in the direction of greater equality. x x x
[T]here is thus in the Philippine Constitution no lack of doctrinal support for
a more vigorous state effort towards achieving a reasonable measure of
equality.

Our present Constitution has gone further in guaranteeing vital social and
economic rights to marginalized groups of society, including labor. Under
the policy of social justice, the law bends over backward to accommodate
the interests of the working class on the humane justification that those with
less privilege in life should have more in law. And the obligation to afford
protection to labor is incumbent not only on the legislative and executive
branches but also on the judiciary to translate this pledge into a living
reality. Social justice calls for the humanization of laws and the equalization
of social and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated.

xxxx

Under most circumstances, the Court will exercise judicial restraint in

deciding questions of constitutionality, recognizing the broad discretion
given to Congress in exercising its legislative power. Judicial scrutiny would
be based on the "rational basis" test, and the legislative discretion would be
given deferential treatment.

But if the challenge to the statute is premised on the denial of a

fundamental right, or the perpetuation of prejudice against persons favored
by the Constitution with special protection, judicial scrutiny ought to be
more strict. A weak and watered down view would call for the abdication of
this Courts solemn duty to strike down any law repugnant to the
Constitution and the rights it enshrines. This is true whether the actor
committing the unconstitutional act is a private person or the government
itself or one of its instrumentalities. Oppressive acts will be struck down
regardless of the character or nature of the actor.

xxxx

In the case at bar, the challenged proviso operates on the basis of the
salary grade or officer-employee status. It is akin to a distinction based on
economic class and status, with the higher grades as recipients of a benefit
specifically withheld from the lower grades. Officers of the BSP now receive
higher compensation packages that are competitive with the industry, while
the poorer, low-salaried employees are limited to the rates prescribed by
the SSL. The implications are quite disturbing: BSP rank-and-file
employees are paid the strictly regimented rates of the SSL while
employees higher in rank - possessing higher and better education and
opportunities for career advancement - are given higher compensation
packages to entice them to stay. Considering that majority, if not all, the
rank-and-file employees consist of people whose status and rank in life are
less and limited, especially in terms of job marketability, it is they - and not
the officers - who have the real economic and financial need for the
adjustment . This is in accord with the policy of the Constitution "to free the
people from poverty, provide adequate social services, extend to them a
decent standard of living, and improve the quality of life for all." Any act of
Congress that runs counter to this constitutional desideratum deserves
strict scrutiny by this Court before it can pass muster. (Emphasis supplied)

Imbued with the same sense of "obligation to afford protection to labor," the
Court in the present case also employs the standard of strict judicial
scrutiny, for it perceives in the subject clause a suspect classification
prejudicial to OFWs.

Upon cursory reading, the subject clause appears facially neutral, for it
applies to all OFWs. However, a closer examination reveals that the
subject clause has a discriminatory intent against, and an invidious impact
on, OFWs at two levels:

First, OFWs with employment contracts of less than one year vis--vis
OFWs with employment contracts of one year or more;

Second, among OFWs with employment contracts of more than one year;
and

Third, OFWs vis--vis local workers with fixed-period employment;

OFWs with employment contracts of less than one year vis--vis OFWs
with employment contracts of one year or more

As pointed out by petitioner,78 it was in Marsaman Manning Agency, Inc. v.

National Labor Relations Commission79 (Second Division, 1999) that the
Court laid down the following rules on the application of the periods
prescribed under Section 10(5) of R.A. No. 804, to wit:

A plain reading of Sec. 10 clearly reveals that the choice of which amount
to award an illegally dismissed overseas contract worker, i.e., whether his
salaries for the unexpired portion of his employment contract or three (3)
months salary for every year of the unexpired term, whichever is less,
comes into play only when the employment contract concerned has a term
of at least one (1) year or more. This is evident from the words "for every
year of the unexpired term" which follows the words "salaries x x x for three
months." To follow petitioners thinking that private respondent is entitled to
three (3) months salary only simply because it is the lesser amount is to
completely disregard and overlook some words used in the statute while
giving effect to some. This is contrary to the well-established rule in legal
hermeneutics that in interpreting a statute, care should be taken that every
part or word thereof be given effect since the law-making body is presumed
to know the meaning of the words employed in the statue and to have used
them advisedly. Ut res magis valeat quam pereat.80 (Emphasis supplied)

In Marsaman, the OFW involved was illegally dismissed two months into
his 10-month contract, but was awarded his salaries for the remaining 8
months and 6 days of his contract.

Prior to Marsaman, however, there were two cases in which the Court
made conflicting rulings on Section 10(5). One was Asian Center for Career
and Employment System and Services v. National Labor Relations
Commission (Second Division, October 1998),81 which involved an OFW
who was awarded a two-year employment contract, but was dismissed
after working for one year and two months. The LA declared his dismissal
illegal and awarded him SR13,600.00 as lump-sum salary covering eight
months, the unexpired portion of his contract. On appeal, the Court
reduced the award to SR3,600.00 equivalent to his three months salary,
this being the lesser value, to wit:

Under Section 10 of R.A. No. 8042, a worker dismissed from overseas

employment without just, valid or authorized cause is entitled to his salary
for the unexpired portion of his employment contract or for three (3) months
for every year of the unexpired term, whichever is less.

In the case at bar, the unexpired portion of private respondents

employment contract is eight (8) months. Private respondent should
therefore be paid his basic salary corresponding to three (3) months or a
total of SR3,600.82

Another was Triple-Eight Integrated Services, Inc. v. National Labor

Relations Commission (Third Division, December 1998),83 which involved
an OFW (therein respondent Erlinda Osdana) who was originally granted a
12-month contract, which was deemed renewed for another 12 months.
After serving for one year and seven-and-a-half months, respondent
Osdana was illegally dismissed, and the Court awarded her salaries for the
entire unexpired portion of four and one-half months of her contract.

The Marsaman interpretation of Section 10(5) has since been adopted in

the following cases:

Case Title Contract Period Period of Service Unexpired Period

Period Applied in the Computation of the Monetary Award
Skippers v. Maguad84 6 months 2 months 4 months 4 months
Bahia Shipping v. Reynaldo Chua 85 9 months 8 months 4 months
4 months
Centennial Transmarine v. dela Cruz l86 9 months 4 months 5 months
5 months
Talidano v. Falcon87 12 months 3 months 9 months 3 months
Univan v. CA 88 12 months 3 months 9 months 3 months
Oriental v. CA 89 12 months more than 2 months 10 months 3 months
PCL v. NLRC90 12 months more than 2 months more or less 9 months
3 months
Olarte v. Nayona91 12 months 21 days 11 months and 9 days 3
months
JSS v.Ferrer92 12 months 16 days 11 months and 24 days 3
months
Pentagon v. Adelantar93 12 months 9 months and 7 days 2 months
and 23 days 2 months and 23 days
Phil. Employ v. Paramio, et al.94 12 months 10 months 2 months
Unexpired portion
Flourish Maritime v. Almanzor 95 2 years 26 days 23 months and 4
days 6 months or 3 months for each year of contract
Athenna Manpower v. Villanos 96 1 year, 10 months and 28 days 1
month 1 year, 9 months and 28 days 6 months or 3 months for
each year of contract
As the foregoing matrix readily shows, the subject clause classifies OFWs
into two categories. The first category includes OFWs with fixed-period
employment contracts of less than one year; in case of illegal dismissal,
they are entitled to their salaries for the entire unexpired portion of their
contract. The second category consists of OFWs with fixed-period
employment contracts of one year or more; in case of illegal dismissal, they
are entitled to monetary award equivalent to only 3 months of the unexpired
portion of their contracts.

The disparity in the treatment of these two groups cannot be discounted. In

Skippers, the respondent OFW worked for only 2 months out of his 6-
month contract, but was awarded his salaries for the remaining 4 months.
In contrast, the respondent OFWs in Oriental and PCL who had also
worked for about 2 months out of their 12-month contracts were awarded
their salaries for only 3 months of the unexpired portion of their contracts.
Even the OFWs involved in Talidano and Univan who had worked for a
longer period of 3 months out of their 12-month contracts before being
illegally dismissed were awarded their salaries for only 3 months.

To illustrate the disparity even more vividly, the Court assumes a

hypothetical OFW-A with an employment contract of 10 months at a
monthly salary rate of US$1,000.00 and a hypothetical OFW-B with an
employment contract of 15 months with the same monthly salary rate of
US$1,000.00. Both commenced work on the same day and under the same
employer, and were illegally dismissed after one month of work. Under the
subject clause, OFW-A will be entitled to US$9,000.00, equivalent to his
salaries for the remaining 9 months of his contract, whereas OFW-B will be
entitled to only US$3,000.00, equivalent to his salaries for 3 months of the
unexpired portion of his contract, instead of US$14,000.00 for the
unexpired portion of 14 months of his contract, as the US$3,000.00 is the
lesser amount.

The disparity becomes more aggravating when the Court takes into
account jurisprudence that, prior to the effectivity of R.A. No. 8042 on July
14, 1995,97 illegally dismissed OFWs, no matter how long the period of
their employment contracts, were entitled to their salaries for the entire
unexpired portions of their contracts. The matrix below speaks for itself:

Case Title Contract Period Period of Service Unexpired Period

Period Applied in the Computation of the Monetary Award
ATCI v. CA, et al.98 2 years 2 months 22 months 22 months
Phil. Integrated v. NLRC99 2 years 7 days 23 months and 23
days 23 months and 23 days
JGB v. NLC100 2 years 9 months 15 months 15 months
Agoy v. NLRC101 2 years 2 months 22 months 22 months
EDI v. NLRC, et al.102 2 years 5 months 19 months 19 months
Barros v. NLRC, et al.103 12 months 4 months 8 months 8 months
Philippine Transmarine v. Carilla104 12 months 6 months and 22 days
5 months and 18 days 5 months and 18 days
It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract
periods or the unexpired portions thereof, were treated alike in terms of the
computation of their monetary benefits in case of illegal dismissal. Their
claims were subjected to a uniform rule of computation: their basic salaries
multiplied by the entire unexpired portion of their employment contracts.

The enactment of the subject clause in R.A. No. 8042 introduced a

differentiated rule of computation of the money claims of illegally dismissed
OFWs based on their employment periods, in the process singling out one
category whose contracts have an unexpired portion of one year or more
and subjecting them to the peculiar disadvantage of having their monetary
awards limited to their salaries for 3 months or for the unexpired portion
thereof, whichever is less, but all the while sparing the other category from
such prejudice, simply because the latter's unexpired contracts fall short of
one year.

Among OFWs With Employment Contracts of More Than One Year

Upon closer examination of the terminology employed in the subject

clause, the Court now has misgivings on the accuracy of the Marsaman
interpretation.

The Court notes that the subject clause "or for three (3) months for every
year of the unexpired term, whichever is less" contains the qualifying
phrases "every year" and "unexpired term." By its ordinary meaning, the
word "term" means a limited or definite extent of time.105 Corollarily, that
"every year" is but part of an "unexpired term" is significant in many ways:
first, the unexpired term must be at least one year, for if it were any shorter,
there would be no occasion for such unexpired term to be measured by
every year; and second, the original term must be more than one year, for
otherwise, whatever would be the unexpired term thereof will not reach
even a year. Consequently, the more decisive factor in the determination of
when the subject clause "for three (3) months for every year of the
unexpired term, whichever is less" shall apply is not the length of the
original contract period as held in Marsaman,106 but the length of the
unexpired portion of the contract period -- the subject clause applies in
cases when the unexpired portion of the contract period is at least one
year, which arithmetically requires that the original contract period be more
than one year.

Viewed in that light, the subject clause creates a sub-layer of discrimination

among OFWs whose contract periods are for more than one year: those
who are illegally dismissed with less than one year left in their contracts
shall be entitled to their salaries for the entire unexpired portion thereof,
while those who are illegally dismissed with one year or more remaining in
their contracts shall be covered by the subject clause, and their monetary
benefits limited to their salaries for three months only.

To concretely illustrate the application of the foregoing interpretation of the

subject clause, the Court assumes hypothetical OFW-C and OFW-D, who
each have a 24-month contract at a salary rate of US$1,000.00 per month.
OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th
month. Considering that there is at least 12 months remaining in the
contract period of OFW-C, the subject clause applies to the computation of
the latter's monetary benefits. Thus, OFW-C will be entitled, not to
US$12,000,00 or the latter's total salaries for the 12 months unexpired
portion of the contract, but to the lesser amount of US$3,000.00 or the
latter's salaries for 3 months out of the 12-month unexpired term of the
contract. On the other hand, OFW-D is spared from the effects of the
subject clause, for there are only 11 months left in the latter's contract
period. Thus, OFW-D will be entitled to US$11,000.00, which is equivalent
to his/her total salaries for the entire 11-month unexpired portion.

OFWs vis--vis Local Workers

With Fixed-Period Employment

As discussed earlier, prior to R.A. No. 8042, a uniform system of

computation of the monetary awards of illegally dismissed OFWs was in
place. This uniform system was applicable even to local workers with fixed-
term employment.107

The earliest rule prescribing a uniform system of computation was actually

Article 299 of the Code of Commerce (1888),108 to wit:

Article 299. If the contracts between the merchants and their shop clerks
and employees should have been made of a fixed period, none of the
contracting parties, without the consent of the other, may withdraw from the
fulfillment of said contract until the termination of the period agreed upon.

Persons violating this clause shall be subject to indemnify the loss and
damage suffered, with the exception of the provisions contained in the
following articles.

In Reyes v. The Compaia Maritima,109 the Court applied the foregoing

provision to determine the liability of a shipping company for the illegal
discharge of its managers prior to the expiration of their fixed-term
employment. The Court therein held the shipping company liable for the
salaries of its managers for the remainder of their fixed-term employment.

There is a more specific rule as far as seafarers are concerned: Article 605
of the Code of Commerce which provides:

Article 605. If the contracts of the captain and members of the crew with the
agent should be for a definite period or voyage, they cannot be discharged
until the fulfillment of their contracts, except for reasons of insubordination
in serious matters, robbery, theft, habitual drunkenness, and damage
caused to the vessel or to its cargo by malice or manifest or proven
negligence.

Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie,110

in

which the Court held the shipping company liable for the salaries and
subsistence allowance of its illegally dismissed employees for the entire
unexpired portion of their employment contracts.

While Article 605 has remained good law up to the present,111 Article 299
of the Code of Commerce was replaced by Art. 1586 of the Civil Code of
1889, to wit:

Article 1586. Field hands, mechanics, artisans, and other laborers hired for
a certain time and for a certain work cannot leave or be dismissed without
sufficient cause, before the fulfillment of the contract. (Emphasis supplied.)

Citing Manresa, the Court in Lemoine v. Alkan112 read the disjunctive "or"
in Article 1586 as a conjunctive "and" so as to apply the provision to local
workers who are employed for a time certain although for no particular skill.
This interpretation of Article 1586 was reiterated in Garcia Palomar v. Hotel
de France Company.113 And in both Lemoine and Palomar, the Court
adopted the general principle that in actions for wrongful discharge founded
on Article 1586, local workers are entitled to recover damages to the extent
of the amount stipulated to be paid to them by the terms of their contract.
On the computation of the amount of such damages, the Court in Aldaz v.
Gay114 held:
The doctrine is well-established in American jurisprudence, and nothing
has been brought to our attention to the contrary under Spanish
jurisprudence, that when an employee is wrongfully discharged it is his duty
to seek other employment of the same kind in the same community, for the
purpose of reducing the damages resulting from such wrongful discharge.
However, while this is the general rule, the burden of showing that he failed
to make an effort to secure other employment of a like nature, and that
other employment of a like nature was obtainable, is upon the defendant.
When an employee is wrongfully discharged under a contract of
employment his prima facie damage is the amount which he would be
entitled to had he continued in such employment until the termination of the
period. (Howard vs. Daly, 61 N. Y., 362; Allen vs. Whitlark, 99 Mich., 492;
Farrell vs. School District No. 2, 98 Mich., 43.)115 (Emphasis supplied)

On August 30, 1950, the New Civil Code took effect with new provisions on
fixed-term employment: Section 2 (Obligations with a Period), Chapter 3,
Title I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of
Work), Chapter 3, Title VIII, Book IV.116 Much like Article 1586 of the Civil
Code of 1889, the new provisions of the Civil Code do not expressly
provide for the remedies available to a fixed-term worker who is illegally
discharged. However, it is noted that in Mackay Radio & Telegraph Co.,
Inc. v. Rich,117 the Court carried over the principles on the payment of
damages underlying Article 1586 of the Civil Code of 1889 and applied the
same to a case involving the illegal discharge of a local worker whose
fixed-period employment contract was entered into in 1952, when the new
Civil Code was already in effect.118

More significantly, the same principles were applied to cases involving

overseas Filipino workers whose fixed-term employment contracts were
illegally terminated, such as in First Asian Trans & Shipping Agency, Inc. v.
Ople,119 involving seafarers who were illegally discharged. In Teknika
Skills and Trade Services, Inc. v. National Labor Relations
Commission,120 an OFW who was illegally dismissed prior to the
expiration of her fixed-period employment contract as a baby sitter, was
awarded salaries corresponding to the unexpired portion of her contract.
The Court arrived at the same ruling in Anderson v. National Labor
Relations Commission,121 which involved a foreman hired in 1988 in Saudi
Arabia for a fixed term of two years, but who was illegally dismissed after
only nine months on the job -- the Court awarded him salaries
corresponding to 15 months, the unexpired portion of his contract. In Asia
World Recruitment, Inc. v. National Labor Relations Commission,122 a
Filipino working as a security officer in 1989 in Angola was awarded his
salaries for the remaining period of his 12-month contract after he was
wrongfully discharged. Finally, in Vinta Maritime Co., Inc. v. National Labor
Relations Commission,123 an OFW whose 12-month contract was illegally
cut short in the second month was declared entitled to his salaries for the
remaining 10 months of his contract.

In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term
employment who were illegally discharged were treated alike in terms of
the computation of their money claims: they were uniformly entitled to their
salaries for the entire unexpired portions of their contracts. But with the
enactment of R.A. No. 8042, specifically the adoption of the subject clause,
illegally dismissed OFWs with an unexpired portion of one year or more in
their employment contract have since been differently treated in that their
money claims are subject to a 3-month cap, whereas no such limitation is
imposed on local workers with fixed-term employment.

The Court concludes that the subject clause contains a suspect

classification in that, in the computation of the monetary benefits of fixed-
term employees who are illegally discharged, it imposes a 3-month cap on
the claim of OFWs with an unexpired portion of one year or more in their
contracts, but none on the claims of other OFWs or local workers with
fixed-term employment. The subject clause singles out one classification of
OFWs and burdens it with a peculiar disadvantage.

There being a suspect classification involving a vulnerable sector protected

by the Constitution, the Court now subjects the classification to a strict
judicial scrutiny, and determines whether it serves a compelling state
interest through the least restrictive means.

What constitutes compelling state interest is measured by the scale of

rights and powers arrayed in the Constitution and calibrated by history.124
It is akin to the paramount interest of the state125 for which some individual
liberties must give way, such as the public interest in safeguarding health
or maintaining medical standards,126 or in maintaining access to
information on matters of public concern.127

In the present case, the Court dug deep into the records but found no
compelling state interest that the subject clause may possibly serve.

The OSG defends the subject clause as a police power measure "designed
to protect the employment of Filipino seafarers overseas x x x. By limiting
the liability to three months [sic], Filipino seafarers have better chance of
getting hired by foreign employers." The limitation also protects the interest
of local placement agencies, which otherwise may be made to shoulder
millions of pesos in "termination pay."128

The OSG explained further:

Often, placement agencies, their liability being solidary, shoulder the

payment of money claims in the event that jurisdiction over the foreign
employer is not acquired by the court or if the foreign employer reneges on
its obligation. Hence, placement agencies that are in good faith and which
fulfill their obligations are unnecessarily penalized for the acts of the foreign
employer. To protect them and to promote their continued helpful
contribution in deploying Filipino migrant workers, liability for money are
reduced under Section 10 of RA 8042.

This measure redounds to the benefit of the migrant workers whose welfare
the government seeks to promote. The survival of legitimate placement
agencies helps [assure] the government that migrant workers are properly
deployed and are employed under decent and humane conditions.129
(Emphasis supplied)

However, nowhere in the Comment or Memorandum does the OSG cite the
source of its perception of the state interest sought to be served by the
subject clause.

The OSG locates the purpose of R.A. No. 8042 in the speech of Rep.
Bonifacio Gallego in sponsorship of House Bill No. 14314 (HB 14314), from
which the law originated;130 but the speech makes no reference to the
underlying reason for the adoption of the subject clause. That is only
natural for none of the 29 provisions in HB 14314 resembles the subject
clause.

On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on
money claims, to wit:
Sec. 10. Money Claims. - Notwithstanding any provision of law to the
contrary, the Labor Arbiters of the National Labor Relations Commission
(NLRC) shall have the original and exclusive jurisdiction to hear and
decide, within ninety (90) calendar days after the filing of the complaint, the
claims arising out of an employer-employee relationship or by virtue of the
complaint, the claim arising out of an employer-employee relationship or by
virtue of any law or contract involving Filipino workers for overseas
employment including claims for actual, moral, exemplary and other forms
of damages.

The liability of the principal and the recruitment/placement agency or any

and all claims under this Section shall be joint and several.

Any compromise/amicable settlement or voluntary agreement on any

money claims exclusive of damages under this Section shall not be less
than fifty percent (50%) of such money claims: Provided, That any
installment payments, if applicable, to satisfy any such compromise or
voluntary settlement shall not be more than two (2) months. Any
compromise/voluntary agreement in violation of this paragraph shall be null
and void.

Non-compliance with the mandatory period for resolutions of cases

provided under this Section shall subject the responsible officials to any or
all of the following penalties:

(1) The salary of any such official who fails to render his decision or
resolution within the prescribed period shall be, or caused to be, withheld
until the said official complies therewith;

(2) Suspension for not more than ninety (90) days; or

(3) Dismissal from the service with disqualification to hold any appointive
public office for five (5) years.

Provided, however, That the penalties herein provided shall be without

prejudice to any liability which any such official may have incurred under
other existing laws or rules and regulations as a consequence of violating
the provisions of this paragraph.

But significantly, Section 10 of SB 2077 does not provide for any rule on
the computation of money claims.

A rule on the computation of money claims containing the subject clause

was inserted and eventually adopted as the 5th paragraph of Section 10 of
R.A. No. 8042. The Court examined the rationale of the subject clause in
the transcripts of the "Bicameral Conference Committee (Conference
Committee) Meetings on the Magna Carta on OCWs (Disagreeing
Provisions of Senate Bill No. 2077 and House Bill No. 14314)." However,
the Court finds no discernible state interest, let alone a compelling one, that
is sought to be protected or advanced by the adoption of the subject
clause.

In fine, the Government has failed to discharge its burden of proving the
existence of a compelling state interest that would justify the perpetuation
of the discrimination against OFWs under the subject clause.

Assuming that, as advanced by the OSG, the purpose of the subject clause
is to protect the employment of OFWs by mitigating the solidary liability of
placement agencies, such callous and cavalier rationale will have to be
rejected. There can never be a justification for any form of government
action that alleviates the burden of one sector, but imposes the same
burden on another sector, especially when the favored sector is composed
of private businesses such as placement agencies, while the
disadvantaged sector is composed of OFWs whose protection no less than
the Constitution commands. The idea that private business interest can be
elevated to the level of a compelling state interest is odious.

Moreover, even if the purpose of the subject clause is to lessen the solidary
liability of placement agencies vis-a-vis their foreign principals, there are
mechanisms already in place that can be employed to achieve that purpose
without infringing on the constitutional rights of OFWs.

The POEA Rules and Regulations Governing the Recruitment and

Employment of Land-Based Overseas Workers, dated February 4, 2002,
imposes administrative disciplinary measures on erring foreign employers
who default on their contractual obligations to migrant workers and/or their
Philippine agents. These disciplinary measures range from temporary
disqualification to preventive suspension. The POEA Rules and
Regulations Governing the Recruitment and Employment of Seafarers,
dated May 23, 2003, contains similar administrative disciplinary measures
against erring foreign employers.

Resort to these administrative measures is undoubtedly the less restrictive

means of aiding local placement agencies in enforcing the solidary liability
of their foreign principals.

Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No.
8042 is violative of the right of petitioner and other OFWs to equal
protection.1avvphi1

Further, there would be certain misgivings if one is to approach the

declaration of the unconstitutionality of the subject clause from the lone
perspective that the clause directly violates state policy on labor under
Section 3,131 Article XIII of the Constitution.

While all the provisions of the 1987 Constitution are presumed self-
executing,132 there are some which this Court has declared not judicially
enforceable, Article XIII being one,133 particularly Section 3 thereof, the
nature of which, this Court, in Agabon v. National Labor Relations
Commission,134 has described to be not self-actuating:

Thus, the constitutional mandates of protection to labor and security of

tenure may be deemed as self-executing in the sense that these are
automatically acknowledged and observed without need for any enabling
legislation. However, to declare that the constitutional provisions are
enough to guarantee the full exercise of the rights embodied therein, and
the realization of ideals therein expressed, would be impractical, if not
unrealistic. The espousal of such view presents the dangerous tendency of
being overbroad and exaggerated. The guarantees of "full protection to
labor" and "security of tenure", when examined in isolation, are facially
unqualified, and the broadest interpretation possible suggests a blanket
shield in favor of labor against any form of removal regardless of
circumstance. This interpretation implies an unimpeachable right to
continued employment-a utopian notion, doubtless-but still hardly within the
contemplation of the framers. Subsequent legislation is still needed to
define the parameters of these guaranteed rights to ensure the protection
and promotion, not only the rights of the labor sector, but of the employers'
as well. Without specific and pertinent legislation, judicial bodies will be at a
loss, formulating their own conclusion to approximate at least the aims of
the Constitution.
Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a
source of a positive enforceable right to stave off the dismissal of an
employee for just cause owing to the failure to serve proper notice or
hearing. As manifested by several framers of the 1987 Constitution, the
provisions on social justice require legislative enactments for their
enforceability.135 (Emphasis added)

Thus, Section 3, Article XIII cannot be treated as a principal source of direct

enforceable rights, for the violation of which the questioned clause may be
declared unconstitutional. It may unwittingly risk opening the floodgates of
litigation to every worker or union over every conceivable violation of so
broad a concept as social justice for labor.

It must be stressed that Section 3, Article XIII does not directly bestow on
the working class any actual enforceable right, but merely clothes it with the
status of a sector for whom the Constitution urges protection through
executive or legislative action and judicial recognition. Its utility is best
limited to being an impetus not just for the executive and legislative
departments, but for the judiciary as well, to protect the welfare of the
working class. And it was in fact consistent with that constitutional agenda
that the Court in Central Bank (now Bangko Sentral ng Pilipinas) Employee
Association, Inc. v. Bangko Sentral ng Pilipinas, penned by then Associate
Justice now Chief Justice Reynato S. Puno, formulated the judicial precept
that when the challenge to a statute is premised on the perpetuation of
prejudice against persons favored by the Constitution with special
protection -- such as the working class or a section thereof -- the Court may
recognize the existence of a suspect classification and subject the same to
strict judicial scrutiny.

The view that the concepts of suspect classification and strict judicial
scrutiny formulated in Central Bank Employee Association exaggerate the
significance of Section 3, Article XIII is a groundless apprehension. Central
Bank applied Article XIII in conjunction with the equal protection clause.
Article XIII, by itself, without the application of the equal protection clause,
has no life or force of its own as elucidated in Agabon.

Along the same line of reasoning, the Court further holds that the subject
clause violates petitioner's right to substantive due process, for it deprives
him of property, consisting of monetary benefits, without any existing valid
governmental purpose.136

The argument of the Solicitor General, that the actual purpose of the
subject clause of limiting the entitlement of OFWs to their three-month
salary in case of illegal dismissal, is to give them a better chance of getting
hired by foreign employers. This is plain speculation. As earlier discussed,
there is nothing in the text of the law or the records of the deliberations
leading to its enactment or the pleadings of respondent that would indicate
that there is an existing governmental purpose for the subject clause, or
even just a pretext of one.

The subject clause does not state or imply any definitive governmental
purpose; and it is for that precise reason that the clause violates not just
petitioner's right to equal protection, but also her right to substantive due
process under Section 1,137 Article III of the Constitution.

The subject clause being unconstitutional, petitioner is entitled to his

salaries for the entire unexpired period of nine months and 23 days of his
employment contract, pursuant to law and jurisprudence prior to the
enactment of R.A. No. 8042.

On the Third Issue

Petitioner contends that his overtime and leave pay should form part of the
salary basis in the computation of his monetary award, because these are
fixed benefits that have been stipulated into his contract.

Petitioner is mistaken.

The word salaries in Section 10(5) does not include overtime and leave
pay. For seafarers like petitioner, DOLE Department Order No. 33, series
1996, provides a Standard Employment Contract of Seafarers, in which
salary is understood as the basic wage, exclusive of overtime, leave pay
and other bonuses; whereas overtime pay is compensation for all work
"performed" in excess of the regular eight hours, and holiday pay is
compensation for any work "performed" on designated rest days and
holidays.

By the foregoing definition alone, there is no basis for the automatic

inclusion of overtime and holiday pay in the computation of petitioner's
monetary award, unless there is evidence that he performed work during
those periods. As the Court held in Centennial Transmarine, Inc. v. Dela
Cruz,138

However, the payment of overtime pay and leave pay should be disallowed
in light of our ruling in Cagampan v. National Labor Relations Commission,
to wit:

The rendition of overtime work and the submission of sufficient proof that
said was actually performed are conditions to be satisfied before a seaman
could be entitled to overtime pay which should be computed on the basis of
30% of the basic monthly salary. In short, the contract provision guarantees
the right to overtime pay but the entitlement to such benefit must first be
established.

In the same vein, the claim for the day's leave pay for the unexpired portion
of the contract is unwarranted since the same is given during the actual
service of the seamen.

WHEREFORE, the Court GRANTS the Petition. The subject clause "or for
three months for every year of the unexpired term, whichever is less" in the
5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED
UNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1,
2005 Resolution of the Court of Appeals are MODIFIED to the effect that
petitioner is AWARDED his salaries for the entire unexpired portion of his
employment contract consisting of nine months and 23 days computed at
the rate of US$1,400.00 per month.

No costs.

SO ORDERED.

FACTS:

Petitioner was hired by Gallant Maritime Services, Inc. and Marlow

Navigation Co., Ltd. (respondents) under a Philippine Overseas
Employment Administration (POEA)-approved Contract of Employment
with the following terms and conditions:
Duration of contract 12 months

Position Chief Officer

Basic monthly salary US$1,400.00

Hours of work 48.0 hours per week

Overtime US$700.00 per month

Vacation leave with pay 7.00 days per month

On March 19, 1998, the date of his departure, petitioner was constrained to
accept a downgraded employment contract for the position of Second
Officer with a monthly salary of US$1,000.00, upon the assurance and
representation of respondents that he would be made Chief Officer by the
end of April 1998.

Respondents did not deliver on their promise to make petitioner Chief

Officer. Hence, petitioner refused to stay on as Second Officer and was
repatriated to the Philippines on May 26, 1998.

Petitioners employment contract was for a period of 12 months or from

March 19, 1998 up to March 19, 1999, but at the time of his repatriation on
May 26, 1998, he had served only two (2) months and seven (7) days of his
contract, leaving an unexpired portion of nine (9) months and twenty-three
(23) days.

Petitioner filed with the Labor Arbiter (LA) a Complaint against respondents
for constructive dismissal and for payment of his money claims in the total
amount of US$26,442.73.

The LA rendered a Decision dated July 15, 1999, declaring the dismissal of
petitioner illegal and awarding him monetary benefits, to wit:

WHEREFORE, premises considered, judgment is hereby rendered

declaring that the dismissal of the complainant (petitioner) by the
respondents in the above-entitled case was illegal and the respondents are
hereby ordered to pay the complainant [petitioner], jointly and severally, in
Philippine Currency, based on the rate of exchange prevailing at the time of
payment, the amount of EIGHT THOUSAND SEVEN HUNDRED
SEVENTY U.S. DOLLARS (US $8,770.00), representing the complainants
salary for three (3) months of the unexpired portion of the aforesaid
contract of employment.

The claims of the complainant for moral and exemplary damages are
hereby DISMISSED for lack of merit.

In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his

computation on the salary period of three months only rather than the
entire unexpired portion of nine months and 23 days of petitioners
employment contract applying the subject clause. However, the LA
applied the salary rate of US$2,590.00, consisting of petitioners [b]asic
salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, +
US$490.00/month, vacation leave pay = US$2,590.00/compensation per
month.

Respondents appealed to the National Labor Relations Commission

(NLRC) to question the finding of the LA that petitioner was illegally
dismissed.

The NLRC modified the LA Decision and corrected the LAs computation of
the lump-sum salary awarded to petitioner by reducing the applicable
salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042
does not provide for the award of overtime pay, which should be proven to
have been actually performed, and for vacation leave pay.

Petitioner filed a Motion for Partial Reconsideration, but this time he

questioned the constitutionality of the subject clause. The NLRC denied the
motion.

Petitioner filed a Petition for Certiorari with the CA, reiterating the
constitutional challenge against the subject clause. After initially dismissing
the petition on a technicality, the CA eventually gave due course to it, as
directed by this Court in its Resolution which granted the petition for
certiorari,filed by petitioner.

The CA affirmed the NLRC ruling on the reduction of the applicable salary
rate; however, the CA skirted the constitutional issue raised by petitioner.
His Motion for Reconsideration having been denied by the CA, petitioner
brings his cause to this Court on the following grounds:

The Court of Appeals and the labor tribunals have decided the case in a
way not in accord with applicable decision of the Supreme Court involving
similar issue of granting unto the migrant worker back wages equal to the
unexpired portion of his contract of employment instead of limiting it to
three (3) months.

Even without considering the constitutional limitations [of] Sec. 10 of

Republic Act No. 8042, the Court of Appeals gravely erred in law in
excluding from petitioners award the overtime pay and vacation pay
provided in his contract since under the contract they form part of his
salary.

The Court now takes up the full merit of the petition mindful of the extreme
importance of the constitutional question raised therein.

ISSUES:

Whether Section 10 (par 5) of RA 8042 is unconstitutional

Proper computation of the Lump-sum salary to be awarded to petitioner by
reason of his illegal dismissal
Whether the overtime and leave pay should form part of the salary basis in
the computation of his monetary award

The unanimous finding of the LA, NLRC and CA that the dismissal of
petitioner was illegal is not disputed. Likewise not disputed is the salary
differential of US$45.00 awarded to petitioner in all three fora.

Applying the subject clause, the NLRC and the CA computed the lump-sum
salary of petitioner at the monthly rate of US$1,400.00 covering the period
of three months out of the unexpired portion of nine months and 23 days of
his employment contract or a total of US$4,200.00.
Impugning the constitutionality of the subject clause, petitioner contends
that, in addition to the US$4,200.00 awarded by the NLRC and the CA, he
is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to
his salaries for the entire nine months and 23 days left of his employment
contract, computed at the monthly rate of US$2,590.00.31

Arguments of the Petitioner

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the
5th paragraph of Section 10, Republic Act (R.A.) No. 8042, violates the
OFWs constitutional rights in that it impairs the terms of their contract,
deprives them of equal protection and denies them due process.

The Arguments of Respondents

Respondents contend that the constitutional issue should not be

entertained, for this was belatedly interposed by petitioner in his appeal
before the CA, and not at the earliest opportunity, which was when he filed
an appeal before the NLRC.40

The Arguments of the Solicitor General

The Solicitor General (OSG)41 points out that as R.A. No. 8042 took effect
on July 15, 1995, its provisions could not have impaired petitioners 1998
employment contract. Rather, R.A. No. 8042 having preceded petitioners
contract, the provisions thereof are deemed part of the minimum terms of
petitioners employment, especially on the matter of money claims, as this
was not stipulated upon by the parties.

The Courts Ruling:

First Issue

Does the subject clause violate Section 1, Article III of the Constitution, and
Section 18, Article II and Section 3, Article XIII on Labor as protected
sector?

The answer is in the affirmative.

Section 1, Article III of the Constitution guarantees:

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 law.

Section 18, Article II and Section 3, Article XIII accord all members of the
labor sector, without distinction as to place of deployment, full protection of
their rights and welfare.

To Filipino workers, the rights guaranteed under the foregoing

constitutional provisions translate to economic security and parity: all
monetary benefits should be equally enjoyed by workers of similar
category, while all monetary obligations should be borne by them in equal
degree; none should be denied the protection of the laws which is enjoyed
by, or spared the burden imposed on, others in like circumstances.

Imbued with the same sense of obligation to afford protection to labor, the
Court in the present case also employs the standard of strict judicial
scrutiny, for it perceives in the subject clause a suspect classification
prejudicial to OFWs.

Upon cursory reading, the subject clause appears facially neutral, for it
applies to all OFWs. However, a closer examination reveals that the
subject clause has a discriminatory intent against, and an invidious impact
on OFWs

The subject clause does not state or imply any definitive governmental
purpose; and it is for that precise reason that the clause violates not just
petitioners right to equal protection, but also her right to substantive due
process under Section 1, Article III of the Constitution.

Second Issue

It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract
periods or the unexpired portions thereof, were treated alike in terms of the
computation of their monetary benefits in case of illegal dismissal. Their
claims were subjected to a uniform rule of computation: their basic salaries
multiplied by the entire unexpired portion of their employment contracts.

The enactment of the subject clause in R.A. No. 8042 introduced a

differentiated rule of computation of the money claims of illegally dismissed
OFWs based on their employment periods, in the process singling out one
category whose contracts have an unexpired portion of one year or more
and subjecting them to the peculiar disadvantage of having their monetary
awards limited to their salaries for 3 months or for the unexpired portion
thereof, whichever is less, but all the while sparing the other category from
such prejudice, simply because the latters unexpired contracts fall short of
one year.

Prior to R.A. No. 8042, a uniform system of computation of the monetary

awards of illegally dismissed OFWs was in place. This uniform system was
applicable even to local workers with fixed-term employment.

The subject clause does not state or imply any definitive governmental
purpose; and it is for that precise reason that the clause violates not just
petitioners right to equal protection, but also her right to substantive due
process under Section 1, Article III of the Constitution.

The subject clause being unconstitutional, petitioner is entitled to his

salaries for the entire unexpired period of nine months and 23 days of his
employment contract, pursuant to law and jurisprudence prior to the
enactment of R.A. No. 8042.

Third Issue

Petitioner contends that his overtime and leave pay should form part of the
salary basis in the computation of his monetary award, because these are
fixed benefits that have been stipulated into his contract.

Petitioner is mistaken.

The word salaries in Section 10(5) does not include overtime and leave
pay. For seafarers like petitioner, DOLE Department Order No. 33, series
1996, provides a Standard Employment Contract of Seafarers, in which
salary is understood as the basic wage, exclusive of overtime, leave pay
and other bonuses; whereas overtime pay is compensation for all work
performed in excess of the regular eight hours, and holiday pay is
compensation for any work performed on designated rest days and
holidays.

In the same vein, the claim for the days leave pay for the unexpired portion
of the contract is unwarranted since the same is given during the actual
service of the seamen.

WHEREFORE, the Court GRANTS the Petition. The subject clause or for
three months for every year of the unexpired term, whichever is less in the
5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED
UNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1,
2005 Resolution of the Court of Appeals are MODIFIED to the effect that
petitioner is AWARDED his salaries for the entire unexpired portion of his
employment contract consisting of nine months and 23 days computed at
the rate of US$1,400.00 per month.

Qualities of a Good Constitution

Datu Michael Abas Kida v. Senate of the Philippines, G.R. No.
196271, February 28, 2012

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.

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

G.R. No. 196305

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.

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

G.R. No. 197221

REP. EDCEL C. LAGMAN, Petitioner,

vs.
PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary, and
the COMMISSION ON ELECTIONS, Respondents.

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

G.R. No. 197280

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.

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

G.R. No. 197282

ATTY. ROMULO B. MACALINTAL, Petitioner,

vs.
COMMISSION ON ELECTIONS and THE OFFICE OF THE PRESIDENT,
through EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,
Respondents.

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

G.R. No. 197392

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., Respondents.

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

G.R. No. 197454

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.:

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 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 Presidents 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

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 PRESIDENTS 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.

VI. THE REQUIREMENT OF A SUPERMAJORITY OF 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 COMELECS 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.

xxxx

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.

xxxx

III. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS

ERROR IN DECLARING THE 2/3 VOTING REQUIREMENT SET FORTH
IN RA 9054 AS UNCONSTITUTIONAL.

xxxx

IV. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS

ERROR IN HOLDING THAT A PLEBISCITE IS NOT NECESSARY IN
AMENDING THE ORGANIC ACT.

xxxx
V. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN
DECLARING THE HOLD-OVER OF ARMM ELECTIVE OFFICIALS
UNCONSTITUTIONAL.

xxxx

VI. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN

UPHOLDING THE APPOINTMENT OF OFFICERS-IN-CHARGE.3 (italics
and underscoring supplied)

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;

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

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?

(f) Does the appointment power granted to the President exceed the
Presidents supervisory powers over autonomous regions?

The Courts 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.

xxxx

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:

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.

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, 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.

xxxx

MR. GUINGONA. What will be synchronized, therefore, is the election of

the incumbent President and Vice-President in 1992.

MR. DAVIDE. Yes.

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

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.
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 Websters 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:

This view that Congress thought it best to leave the determination of the
date of succeeding ARMM elections to legislative discretion finds support
in ARMMs 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)

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. 905415 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
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

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

requirement20 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 Act21 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 ARMMs 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 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-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.

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 cases22 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 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 three-year 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.

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.

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.

Presidents authority to appoint OICs

The petitioner in G.R. No. 197221 argues that the Presidents 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:

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 x x x I propose to put a period (.) after

"captain" and x x x delete "and all" and substitute it with HE SHALL ALSO
APPOINT ANY.

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 Presidents
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 Presidents
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 Presidents

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 Presidents 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.

This is an overly restrictive interpretation of the Presidents appointment

power. There is no incompatibility between the Presidents 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 Presidents alleged power of

control over the OICs is rooted in their belief that the Presidents
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-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.

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 Presidents 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

We admit that synchronization will temporarily disrupt the election process

in a local community, the ARMM, as well as the communitys 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

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

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

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)

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, 2011.1wphi1 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.

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.

I. THE FACTS

Several laws pertaining to the Autonomous Region in Muslim Mindanao

(ARMM) were enacted by Congress. Republic Act (RA) No. 6734 is the
organic act that established the ARMM and scheduled the first regular
elections for the ARMM regional officials. RA No. 9054 amended the
ARMM Charter and reset the regular elections for the ARMM regional
officials to the second Monday of September 2001. RA No. 9140 further
reset the first regular elections to November 26, 2001. RA No. 9333 reset
for the third time the ARMM regional elections to the 2nd Monday of August
2005 and on the same date every 3 years thereafter.

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 next ARMM regular elections to May 2013 to
coincide with the regular national and local elections of the country.

In these consolidated petitions filed directly with the Supreme Court, the
petitioners assailed the constitutionality of RA No. 10153.

II. THE ISSUES:

1. Does the 1987 Constitution mandate the synchronization of elections

[including the ARMM elections]?
2. Does the passage of RA No. 10153 violate the three-readings-on-
separate-days rule under Section 26(2), Article VI of the 1987 Constitution?
3. Is the grant [to the President] of the power to appoint OICs
constitutional?

III. THE RULING

[The Supreme Court] DISMISSED the petitions and UPHELD the

constitutionality of RA No. 10153 in toto.]

1. YES, the 1987 Constitution mandates the synchronization of elections.

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, 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. The
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.

In this case, the ARMM elections, although called regional 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.

Thus, it is clear from the foregoing that the 1987 Constitution mandates the
synchronization of elections, including the ARMM elections.

2. NO, the passage of RA No. 10153 DOES NOT violate the three-
readings-on-separate-days requirement in Section 26(2), Article VI of the
1987 Constitution.

The general rule that before bills passed by either the House or the Senate
can become laws they must pass through three readings on separate days,
is subject to the EXCEPTION when the President certifies to the necessity
of the bills immediate enactment. The Court, in Tolentino v. Secretary of
Finance, explained the effect of the Presidents 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.

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. Following our Tolentino ruling, the Presidents
certification exempted both the House and the Senate from having to
comply with the three separate readings requirement.

3. YES, the grant [to the President] of the power to appoint OICs in the
ARMM is constitutional

[During the oral arguments, the Court identified the three options open to
Congress in order to resolve the problem on who should sit as ARMM
officials in the interim [in order to achieve synchronization in the 2013
elections]: (1) allow the [incumbent] elective officials in the ARMM to
remain in office in a hold over capacity until those elected in the
synchronized elections assume office; (2) hold special elections in the
ARMM, with the terms of those elected to expire when those elected in the
[2013] synchronized elections assume office; or (3) authorize the President
to appoint OICs, [their respective terms to last also until those elected in
the 2013 synchronized elections assume office.]

3.1. 1st option: Holdover is unconstitutional since it would extend the

terms of office of the incumbent ARMM officials

We rule out the [hold over] option since it 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 three-year term limit prescribed by the Constitution; they
cannot extend their term through a holdover. xxx.

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.
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. Hence, holdover
whichever way it is viewed is a constitutionally infirm option that
Congress could not have undertaken.

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, 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.

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, except where an attendant
unconstitutionality or grave abuse of discretion results.

3.2. 2nd option: Calling special elections is unconstitutional since

COMELEC, on its own, has no authority to order special elections.

The power to fix the date of elections is essentially legislative in nature.

[N]o 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.

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 Congress null and
void for being unconstitutional or for having been exercised in grave abuse
of discretion. 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, 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.

3.3. 3rd option: Grant to the President of the power to appoint ARMM
OICs in the interim is valid.

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 pre-synchronization 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.

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. 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]
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.

Since the Presidents 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.

[T]he 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 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. Aside from its order for synchronization, it is
purely and simply an interim measure responding to the adjustments that
the synchronization requires.

Taada v. Angara, G.R. No. 118295, May 2, 1997

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 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.

PANGANIBAN, J.:

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."

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

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 (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 respondent-heads 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."

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 1

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 he
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

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.

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:

(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 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 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:

(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?

(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.
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 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 II or Article XI of GATT 1994.

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.

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 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
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
Constitution; and (4) that the WTO Agreement contains sufficient provisions
to protect developing countries like the Philippines from the harshness of
sudden trade liberalization.

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."

In the same light, we held in Basco vs. Pagcor 25 that broad constitutional
principles need legislative enactments to implement the, 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

board 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
grating 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:

Sec. 1. ...

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)

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.

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:

Sec. 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 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 ad
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 rule 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.

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:

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 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.

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?

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 frame-work 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.

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

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 auto-limitation." 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 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.

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."

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."

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.

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

(not 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 in 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

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.

"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." 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

1. The WTO shall provide the common institutional frame-work 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.

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.

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 to 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 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.

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 millennium. Let the people, through their
duly authorized elected officers, make their free choice.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Facts:

This is a case petition by Sen. Wigberto Tanada, together with other

lawmakers, taxpayers, and various NGOs to nullify the Philippine
ratification of the World Trade Organization (WTO) Agreement.

Petitioners believe that this will be detrimental to the growth of our National
Economy and against to the Filipino First policy. The WTO opens access
to foreign markets, especially its major trading partners, through the
reduction of tariffs on its exports, particularly agricultural and industrial
products. Thus, provides new opportunities for the service sector cost and
uncertainty associated with exporting and more investment in the country.
These are the predicted benefits as reflected in the agreement and as
viewed by the signatory Senators, a free market espoused by WTO.

Petitioners also contends that it is in conflict with the provisions of our

constitution, since the said Agreement is an assault on the sovereign
powers of the Philippines because it meant that Congress could not pass
legislation that would be good for national interest and general welfare if
such legislation would not conform to the WTO Agreement.
Issues:

1. Whether or not the petition present a justiciable controversy.

2. 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 or undermine the
letter, spirit and intent of Section 19, Article II and Sections 10 and
12, Article XII of the 1987 Constitution.
3. Whether or not certain provisions of the Agreement unduly limit,
restrict or impair the exercise of legislative power by Congress.
4. Whether or not certain provisions of the Agreement impair the
exercise of judicial power by this Honorable Court in promulgating the
rules of evidence.
5. 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.

Discussions:

1987 Constitution states that 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.
Although the Constitution mandates to develop a self-reliant and
independent national economy controlled by Filipinos, does not
necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither economic seclusion nor
mendicancy in the international community. 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 members vote equal in weight to that of
any other. 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. Which 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.
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. 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. Paragraph 1, Article 34 of the General
Provisions and Basic Principles of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) may intrudes on the
power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures. With regard to Infringement of a
design patent, WTO members shall be free to determine the
appropriate method of implementing the provisions of TRIPS within
their own internal systems and processes.
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. 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.

Rulings:

1. 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.
As explained by former Chief Justice Roberto Concepcion, 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.
2. 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.
3. 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. As shown by the
foregoing treaties Philippines has entered, 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.
4. The provision in Article 34 of WTO agreement 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.
5. 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. Moreover, 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, the senators of the
Republic minutely dissected what the Senate was concurring in.

Philosophical View of the Constitution

Ferdinand E. Marcos v. Honorable Raul Manglapus, G.R. No. 88211,
February 28, 2012

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.

MARCOS, JR., IRENE M. ARANETA, IMEE MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA,
petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO
DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of
National Defense and Chief of Staff, respectively, respondents.

CORTES, J.:

Before the Court is a contreversy of grave national importance. While

ostensibly only legal issues are involved, the Court's decision in this case
would undeniably have a profound effect on the political, economic and
other aspects of national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from

the presidency via the non-violent "people power" revolution and forced into
exile. In his stead, Corazon C. Aquino was declared President of the
Republic under a revolutionary government. Her ascension to and
consilidation of power have not been unchallenged. The failed Manila Hotel
coup in 1986 led by political leaders of Mr. Marcos, the takeover of
television station Channel 7 by rebel troops led by Col. Canlas with the
support of "Marcos loyalists" and the unseccessful plot of the Marcos
spouses to surreptitiously return from Hawii with mercenaries aboard an
aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30,
1987] awakened the nation to the capacity of the Marcoses to stir trouble
even from afar and to the fanaticism and blind loyalty of their followers in
the country. The ratification of the 1987 Constitution enshrined the victory
of "people power" and also clearly reinforced the constitutional moorings of
Mrs. Aquino's presidency. This did not, however, stop bloody challenges to
the government. On August 28, 1987, Col. Gregorio Honasan, one of the
major players in the February Revolution, led a failed coup that left scores
of people, both combatants and civilians, dead. There were several other
armed sorties of lesser significance, but the message they conveyed was
the same a split in the ranks of the military establishment that thraetened
civilian supremacy over military and brought to the fore the realization that
civilian government could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided
elements and among rabid followers of Mr. Marcos. There are also the
communist insurgency and the seccessionist movement in Mindanao which
gained ground during the rule of Mr. Marcos, to the extent that the
communists have set up a parallel government of their own on the areas
they effectively control while the separatist are virtually free to move about
in armed bands. There has been no let up on this groups' determination to
wrest power from the govermnent. Not only through resort to arms but also
to through the use of propaganda have they been successful in dreating
chaos and destabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign
debt and the plunder of the nation attributed to Mr. Marcos and his cronies
left the economy devastated. The efforts at economic recovery, three years
after Mrs. Aquino assumed office, have yet to show concrete results in
alleviating the poverty of the masses, while the recovery of the ill-gotten
wealth of the Marcoses has remained elusive.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the
Philipppines to die. But Mrs. Aquino, considering the dire consequences to
the nation of his return at a time when the stability of government is
threatened from various directions and the economy is just beginning to
rise and move forward, has stood firmly on the decision to bar the return of
Mr. Marcos and his family.

The Petition

This case is unique. It should not create a precedent, for the case of a
dictator forced out of office and into exile after causing twenty years of
political, economic and social havoc in the country and who within the short
space of three years seeks to return, is in a class by itself.

This petition for mandamus and prohibition asks the Courts to order the
respondents to issue travel documents to Mr. Marcos and the immediate
members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines.

The Issue

Th issue is basically one of power: whether or not, in the exercise of the

powers granted by the Constitution, the President may prohibit the
Marcoses from returning to the Philippines.

According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:

1. Does the President have the power to bar the return of former
President Marcos and family to the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President
Marcos and his family from returning to the Philippines, in the interest of
"national security, public safety or public health

a. Has the President made a finding that the return of former President
Marcos and his family to the Philippines is a clear and present danger to
national security, public safety or public health?

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied with in making
such finding?

(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was based, been
made known to petitioners so that they may controvert the same?

c. Is the President's determination that the return of former President

Marcos and his family to the Philippines is a clear and present danger to
national security, public safety, or public health a political question?

d. Assuming that the Court may inquire as to whether the return of

former President Marcos and his family is a clear and present danger to
national security, public safety, or public health, have respondents
established such fact?

3. Have the respondents, therefore, in implementing the President's

decision to bar the return of former President Marcos and his family, acted
and would be acting without jurisdiction, or in excess of jurisdiction, or with
grave abuse of discretion, in performing any act which would effectively bar
the return of former President Marcos and his family to the Philippines?
[Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1

The case for petitioners is founded on the assertion that the right of the
Marcoses to return to the Philippines is guaranteed under the following
provisions of the Bill of Rights, to wit:

Section 1. No person shall be deprived of life, liberty, or property without

due process of law, nor shall any person be denied the equal protection of
the laws.

xxx xxx xxx

Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be provided by law.

The petitioners contend that the President is without power to impair the
liberty of abode of the Marcoses because only a court may do so "within
the limits prescribed by law." Nor may the President impair their right to
travel because no law has authorized her to do so. They advance the view
that before the right to travel may be impaired by any authority or agency of
the government, there must be legislation to that effect.

The petitioners further assert that under international law, the right of Mr.
Marcos and his family to return to the Philippines is guaranteed.

The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and
residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to
return to his country.

Likewise, the International Covenant on Civil and Political Rights, which

had been ratified by the Philippines, provides:

Article 12

1) Everyone lawfully within the territory of a State shall, within that

territory, have the right to liberty of movement and freedom to choose his
residence.

2) Everyone shall be free to leave any country, including his own.

3) The above-mentioned rights shall not be subject to any restrictions

except those which are provided by law, are necessary to protect national
security, public order (order public), public health or morals or the rights
and freedoms of others, and are consistent with the other rights recognized
in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own

country.
On the other hand, the respondents' principal argument is that the issue in
this case involves a political question which is non-justiciable. According to
the Solicitor General:

As petitioners couch it, the question involved is simply whether or not

petitioners Ferdinand E. Marcos and his family have the right to travel and
liberty of abode. Petitioners invoke these constitutional rights in vacuo
without reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or

not petitioners Ferdinand E. Marcos and family have the right to return to
the Philippines and reside here at this time in the face of the determination
by the President that such return and residence will endanger national
security and public safety.

It may be conceded that as formulated by petitioners, the question is not a

political question as it involves merely a determination of what the law
provides on the matter and application thereof to petitioners Ferdinand E.
Marcos and family. But when the question is whether the two rights claimed
by petitioners Ferdinand E. Marcos and family impinge on or collide with
the more primordial and transcendental right of the State to security and
safety of its nationals, the question becomes political and this Honorable
Court can not consider it.

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to

the Philippines and reestablish their residence here? This is clearly a
justiciable question which this Honorable Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return to

the Philippines and reestablish their residence here even if their return and
residence here will endanger national security and public safety? this is still
a justiciable question which this Honorable Court can decide.

Is there danger to national security and public safety if petitioners

Ferdinand E. Marcos and family shall return to the Philippines and establish
their residence here? This is now a political question which this Honorable
Court can not decide for it falls within the exclusive authority and
competence of the President of the Philippines. [Memorandum for
Respondents, pp. 9-11; Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national
security over individual rights. In support thereof, they cite Article II of the
Constitution, to wit:

Section 4. The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal, military, or civil service.

Section 5. The maintenance of peace and order, the protection of life,

liberty, and property, and the promotion of the general welfare are essential
for the enjoyment by all the people of the blessings of democracy.

Respondents also point out that the decision to ban Mr. Marcos and family
from returning to the Philippines for reasons of national security and public
safety has international precedents. Rafael Trujillo of the Dominican
Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala,
Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez
Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were
among the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign Affairs
Secretary Raul S. Manglapus, quoted in Memorandum for Respondents,
pp. 26-32; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope
of presidential power and its limits. We, however, view this issue in a
different light. Although we give due weight to the parties' formulation of the
issues, we are not bound by its narrow confines in arriving at a solution to
the controversy.

At the outset, we must state that it would not do to view the case within the
confines of the right to travel and the import of the decisions of the U.S.
Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78
SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766,
69 L Ed. 2d 640) which affirmed the right to travel and recognized
exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines.
These are what the right to travel would normally connote. Essentially, the
right involved is the right to return to one's country, a totally distinct right
under international law, independent from although related to the right to
travel. Thus, the Universal Declaration of Humans Rights and the
International Covenant on Civil and Political Rights treat the right to
freedom of movement and abode within the territory of a state, the right to
leave a country, and the right to enter one's country as separate and
distinct rights. The Declaration speaks of the "right to freedom of movement
and residence within the borders of each state" [Art. 13(l)] separately from
the "right to leave any country, including his own, and to return to his
country." [Art. 13(2).] On the other hand, the Covenant guarantees the
"right to liberty of movement and freedom to choose his residence" [Art.
12(l)] and the right to "be free to leave any country, including his own." [Art.
12(2)] which rights may be restricted by such laws as "are necessary to
protect national security, public order, public health or morals or enter qqqs
own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It
would therefore be inappropriate to construe the limitations to the right to
return to one's country in the same context as those pertaining to the liberty
of abode and the right to travel.

The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode
and the right to travel, but it is our well-considered view that the right to
return may be considered, as a generally accepted principle of international
law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2
of the Constitution.] However, it is distinct and separate from the right to
travel and enjoys a different protection under the International Covenant of
Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof
[Art. 12 (4).]

Thus, the rulings in the cases Kent and Haig which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are not
determinative of this case and are only tangentially material insofar as they
relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in
Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether
or not there can be limitations on the right to travel in the absence of
legislation to that effect is rendered unnecessary. An appropriate case for
its resolution will have to be awaited.

Having clarified the substance of the legal issue, we find now a need to
explain the methodology for its resolution. Our resolution of the issue will
involve a two-tiered approach. We shall first resolve whether or not the
President has the power under the Constitution, to bar the Marcoses from
returning to the Philippines. Then, we shall determine, pursuant to the
express power of the Court under the Constitution in Article VIII, Section 1,
whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined
that the return of the Marcose's to the Philippines poses a serious threat to
national interest and welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the
three great branches of government. To recall the words of Justice Laurel
in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution
has blocked but with deft strokes and in bold lines, allotment of power to
the executive, the legislative and the judicial departments of the
government." [At 157.1 Thus, the 1987 Constitution explicitly provides that
"[the legislative power shall be vested in the Congress of the Philippines"
Art VI, Sec. 11, "[t]he executive power shall bevested in the President of
the Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by
law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of
powers by actual division [Angara v. Electoral Commission, supra] but also
confer plenary legislative, executive and judicial powers subject only to
limitations provided in the Constitution. For as the Supreme Court in
Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the
legislative power means a grant of all legislative power; and a grant of the
judicial power means a grant of all the judicial power which may be
exercised under the government." [At 631-632.1 If this can be said of the
legislative power which is exercised by two chambers with a combined
membership of more than two hundred members and of the judicial power
which is vested in a hierarchy of courts, it can equally be said of the
executive power which is vested in one official the President.
As stated above, the Constitution provides that "[t]he executive power shall
be vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it
does not define what is meant by executive power" although in the same
article it touches on the exercise of certain powers by the President, i.e.,
the power of control over all executive departments, bureaus and offices,
the power to execute the laws, the appointing power, the powers under the
commander-in-chief clause, the power to grant reprieves, commutations
and pardons, the power to grant amnesty with the concurrence of
Congress, the power to contract or guarantee foreign loans, the power to
enter into treaties or international agreements, the power to submit the
budget to Congress, and the power to address Congress [Art. VII, Sec. 14-
23].

The inevitable question then arises: by enumerating certain powers of the

President did the framers of the Constitution intend that the President shall
exercise those specific powers and no other? Are these se enumerated
powers the breadth and scope of "executive power"? Petitioners advance
the view that the President's powers are limited to those specifically
enumerated in the 1987 Constitution. Thus, they assert: "The President has
enumerated powers, and what is not enumerated is impliedly denied to her.
Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4-
Rollo p. 233.1 This argument brings to mind the institution of the U.S.
Presidency after which ours is legally patterned.**

Corwin, in his monumental volume on the President of the United States

grappled with the same problem. He said:

Article II is the most loosely drawn chapter of the Constitution. To those

who think that a constitution ought to settle everything beforehand it should
be a nightmare; by the same token, to those who think that constitution
makers ought to leave considerable leeway for the future play of political
forces, it should be a vision realized.

We encounter this characteristic of Article 11 in its opening words: "The

executive power shall be vested in a President of the United States of
America." . . .. [The President: Office and Powers, 17871957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the
different persons who held the office from Washington to the early 1900's,
and the swing from the presidency by commission to Lincoln's dictatorship,
he concluded that "what the presidency is at any particular moment
depends in important measure on who is President." [At 30.]

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it

remained of course, an agency of government subject to unvarying
demands and duties no remained, of cas President. But, more than most
agencies of government, it changed shape, intensity and ethos according
to the man in charge. Each President's distinctive temperament and
character, his values, standards, style, his habits, expectations,
Idiosyncrasies, compulsions, phobias recast the WhiteHouse and pervaded
the entire government. The executive branch, said Clark Clifford, was a
chameleon, taking its color from the character and personality of the
President. The thrust of the office, its impact on the constitutional order,
therefore altered from President to President. Above all, the way each
President understood it as his personal obligation to inform and involve the
Congress, to earn and hold the confidence of the electorate and to render
an accounting to the nation and posterity determined whether he
strengthened or weakened the constitutional order. [At 212- 213.]

We do not say that the presidency is what Mrs. Aquino says it is or what
she does but, rather, that the consideration of tradition and the
development of presidential power under the different constitutions are
essential for a complete understanding of the extent of and limitations to
the President's powers under the 1987 Constitution. The 1935 Constitution
created a strong President with explicitly broader powers than the U.S.
President. The 1973 Constitution attempted to modify the system of
government into the parliamentary type, with the President as a mere
figurehead, but through numerous amendments, the President became
even more powerful, to the point that he was also the de facto Legislature.
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. Thus, in the landmark
decision of Springer v. Government of the Philippine Islands, 277 U.S. 189
(1928), on the issue of who between the Governor-General of the
Philippines and the Legislature may vote the shares of stock held by the
Government to elect directors in the National Coal Company and the
Philippine National Bank, the U.S. Supreme Court, in upholding the power
of the Governor-General to do so, said:

...Here the members of the legislature who constitute a majority of the

"board" and "committee" respectively, are not charged with the
performance of any legislative functions or with the doing of anything which
is in aid of performance of any such functions by the legislature. Putting
aside for the moment the question whether the duties devolved upon these
members are vested by the Organic Act in the Governor-General, it is clear
that they are not legislative in character, and still more clear that they are
not judicial. The fact that they do not fall within the authority of either of
these two constitutes logical ground for concluding that they do fall within
that of the remaining one among which the powers of government are
divided ....[At 202-203; Emphasis supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring
words of dissent we find reinforcement for the view that it would indeed be
a folly to construe the powers of a branch of government to embrace only
what are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields
of black and white. Even the more specific of them are found to terminate in
a penumbra shading gradually from one extreme to the other. ....

xxx xxx xxx

It does not seem to need argument to show that however we may disguise
it by veiling words we do not and cannot carry out the distinction between
legislative and executive action with mathematical precision and divide the
branches into watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution requires. [At
210- 211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime
duty of theGovernment is to serve and protect the people" and that "[t]he
maintenance of peace and order,the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the maintenance of peace

and order, the protection of life, liberty and property, and the promotion of
the general welfare are essentially ideals to guide governmental action. But
such does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing
implementing action for these plans, or from another point of view, in
making any decision as President of the Republic, the President has to
consider these principles, among other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving at a
decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national interest.
It must be borne in mind that the Constitution, aside from being an
allocation of power is also a social contract whereby the people have
surrendered their sovereign powers to the State for the common good.
Hence, lest the officers of the Government exercising the powers delegated
by the people forget and the servants of the people become rulers, the
Constitution reminds everyone that "[s]overeignty resides in the people and
all government authority emanates from them." [Art. II, Sec. 1.]

The resolution of the problem is made difficult because the persons who
seek to return to the country are the deposed dictator and his family at
whose door the travails of the country are laid and from whom billions of
dollars believed to be ill-gotten wealth are sought to be recovered. The
constitutional guarantees they invoke are neither absolute nor inflexible.
For the exercise of even the preferred freedoms of speech and
ofexpression, although couched in absolute terms, admits of limits and
must be adjusted to the requirements of equally important public interests
[Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]

To the President, the problem is one of balancing the general welfare and
the common good against the exercise of rights of certain individuals. The
power involved is the President's residual power to protect the general
welfare of the people. It is founded on the duty of the President, as steward
of the people. To paraphrase Theodore Roosevelt, it is not only the power
of the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demand [See Corwin,
supra, at 153]. It is a power borne by the President's duty to preserve and
defend the Constitution. It also may be viewed as a power implicit in the
President's duty to take care that the laws are faithfully executed [see
Hyman, The American President, where the author advances the view that
an allowance of discretionary power is unavoidable in any government and
is best lodged in the President].

More particularly, this case calls for the exercise of the President's powers
as protector of the peace. Rossiter The American Presidency].The power of
the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not
only clothed with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign foe
appears on the horizon. Wide discretion, within the bounds of law, in
fulfilling presidential duties in times of peace is not in any way diminished
by the relative want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the enumeration
of powers that follow cannot be said to exclude the President's exercising
as Commander-in- Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial
law, in order to keep the peace, and maintain public order and security.

That the President has the power under the Constitution to bar the
Marcose's from returning has been recognized by memembers of the
Legislature, and is manifested by the Resolution proposed in the House of
Representatives and signed by 103 of its members urging the President to
allow Mr. Marcos to return to the Philippines "as a genuine unselfish
gesture for true national reconciliation and as irrevocable proof of our
collective adherence to uncompromising respect for human rights under the
Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1
The Resolution does not question the President's power to bar the
Marcoses from returning to the Philippines, rather, it appeals to the
President's sense of compassion to allow a man to come home to die in his
country.

What we are saying in effect is that the request or demand of the Marcoses
to be allowed to return to the Philippines cannot be considered in the light
solely of the constitutional provisions guaranteeing liberty of abode and the
right to travel, subject to certain exceptions, or of case law which clearly
never contemplated situations even remotely similar to the present one. It
must be treated as a matter that is appropriately addressed to those
residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to safeguard and
protect general welfare. In that context, such request or demand should
submit to the exercise of a broader discretion on the part of the President to
determine whether it must be granted or denied.

The Extent of Review

Under the Constitution, judicial power includes the duty 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." [Art. VIII, Sec. 1] Given this wording, we cannot agree
with the Solicitor General that the issue constitutes a political question
which is beyond the jurisdiction of the Court to decide.

The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to the political departments
to decide. But nonetheless there remain issues beyond the Court's
jurisdiction the determination of which is exclusively for the President, for
Congress or for the people themselves through a plebiscite or referendum.
We cannot, for example, question the President's recognition of a foreign
government, no matter how premature or improvident such action may
appear. We cannot set aside a presidential pardon though it may appear to
us that the beneficiary is totally undeserving of the grant. Nor can we
amend the Constitution under the guise of resolving a dispute brought
before us because the power is reserved to the people.

There is nothing in the case before us that precludes our determination

thereof on the political question doctrine. The deliberations of the
Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts
of justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not substitute
its judgment for that of the official concerned and decide a matter which by
its nature or by law is for the latter alone to decide. In this light, it would
appear clear that the second paragraph of Article VIII, Section 1 of the
Constitution, defining "judicial power," which specifically empowers the
courts to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R.
No. L-33964, December 11, 1971, 42 SCRA 4481 that:]

Article VII of the [1935] Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers underlying our
system of government, the Executive is supreme within his own sphere.
However, the separation of powers, under the Constitution, is not absolute.
What is more, it goes hand in hand with the system of checks and
balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the sphere
alloted to him by the Basic Law, and the authority to determine whether or
not he has so acted is vested in the Judicial Department, which, in this
respect, is, in turn, constitutionally supreme. In the exercise of such
authority, the function of the Court is merely to check not to supplant the
Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in
him or to determine the wisdom of his act [At 479-480.]

Accordingly, the question for the Court to determine is whether or not there
exist factual bases for the President to conclude that it was in the national
interest to bar the return of the Marcoses to the Philippines. If such
postulates do exist, it cannot be said that she has acted, or acts, arbitrarily
or that she has gravely abused her discretion in deciding to bar their return.

We find that from the pleadings filed by the parties, from their oral
arguments, and the facts revealed during the briefing in chambers by the
Chief of Staff of the Armed Forces of the Philippines and the National
Security Adviser, wherein petitioners and respondents were represented,
there exist factual bases for the President's decision..

The Court cannot close its eyes to present realities and pretend that the
country is not besieged from within by a well-organized communist
insurgency, a separatist movement in Mindanao, rightist conspiracies to
grab power, urban terrorism, the murder with impunity of military men,
police officers and civilian officials, to mention only a few. The documented
history of the efforts of the Marcose's and their followers to destabilize the
country, as earlier narrated in this ponencia bolsters the conclusion that the
return of the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be

contained. The military establishment has given assurances that it could
handle the threats posed by particular groups. But it is the catalytic effect of
the return of the Marcoses that may prove to be the proverbial final straw
that would break the camel's back. With these before her, the President
cannot be said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to the
national interest and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines
will cause the escalation of violence against the State, that would be the
time for the President to step in and exercise the commander-in-chief
powers granted her by the Constitution to suppress or stamp out such
violence. The State, acting through the Government, is not precluded from
taking pre- emptive action against threats to its existence if, though still
nascent they are perceived as apt to become serious and direct. Protection
of the people is the essence of the duty of government. The preservation of
the State the fruition of the people's sovereignty is an obligation in the
highest order. The President, sworn to preserve and defend the
Constitution and to see the faithful execution the laws, cannot shirk from
that responsibility.

We cannot also lose sight of the fact that the country is only now beginning
to recover from the hardships brought about by the plunder of the economy
attributed to the Marcoses and their close associates and relatives, many of
whom are still here in the Philippines in a position to destabilize the
country, while the Government has barely scratched the surface, so to
speak, in its efforts to recover the enormous wealth stashed away by the
Marcoses in foreign jurisdictions. Then, We cannot ignore the continually
increasing burden imposed on the economy by the excessive foreign
borrowing during the Marcos regime, which stifles and stagnates
development and is one of the root causes of widespread poverty and all its
attendant ills. The resulting precarious state of our economy is of common
knowledge and is easily within the ambit of judicial notice.

The President has determined that the destabilization caused by the return
of the Marcoses would wipe away the gains achieved during the past few
years and lead to total economic collapse. Given what is within our
individual and common knowledge of the state of the economy, we cannot
argue with that determination.

WHEREFORE, and it being our well-considered opinion that the President

did not act arbitrarily or with grave abuse of discretion in determining that
the return of former President Marcos and his family at the present time
and under present circumstances poses a serious threat to national interest
and welfare and in prohibiting their return to the Philippines, the instant
petition is hereby DISMISSED.

SO ORDERED.

FACTS:
After President Marcos was deposed from presidency via the People
Power Revolution, he and his family was forced into exile. Now in his
deathbed, the former President has signified his wish to return to the
Philippines to die. But President Aquino, considering the dire
consequences on the nation on the return at a time when the stability of the
government is threatened from various directions, stood firmly on the
decision to bar the return of Mr. Marcos and his family.

ISSUE:

Whether, in the exercise of the powers granted by the Constitution, the

President may prohibit the Marcoses from returning to the Philippines
insofar as the powers enumerated under scope of the Executive are
concerned.

RULING:

Although the 1987 Constitution imposes limitation on the exercise of the

specific powers of the President, it maintains intact what is traditionally
considered as within the scope of the executive power. Corollarily, the
powers of the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. Having sword to defend and
uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from
being an allocation of power is also a social contract whereby the people
have surrendered their sovereign powers to the State for common good.
The State, through the Government, is not precluded from taking pre-
emptive action against threats to its existence if, though still nascent, they
are perceived as apt to become serious and direct.

II. THE BACKGROUND OF THE PRESENT CONSTITUTION

The 1986 Revolution and Proclamation of the Provisional Constitution
Lawyers League v. Aquino, G.R. Nos. 73748, 73972 and 73990, May
22, 1986

FACTS:
1.On February 25, 1986, President Corazon Aquino issued Proclamation
No. 1 announcingthat she and Vice President Laurel were taking
power.2.On March 25, 1986, proclamation No.3 was issued providing the
basis of the Aquinogovernment assumption of power by stating that the
"new government was installed througha direct exercise of the power of the
Filipino people assisted by units of the New ArmedForces of the
Philippines."
ISSUE:
Whether or not the government of Corazon Aquino is legitimate.
HELD:
Yes.The legitimacy of the Aquino government is not a justiciable matter but
belongs to the realmof politics where only the people are the judge.The
Court further held that:1.The people have accepted the Aquino government
which is in effective control of the entirecountry;
2.
It is not merely a
de facto
government but in fact and law a
de jure
government; and
3.
The community of nations has recognized the legitimacy of the new
government.

Saturnino v. Bermudez G.R. No. 76180, October 24, 1986

G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N

PER CURIAM:

In a petition for declaratory relief impleading no respondents, petitioner, as

a lawyer, quotes the first paragraph of Section 5 (not Section 7 as
erroneously stated) of Article XVIII of the proposed 1986 Constitution,
which provides in full as follows:
Sec. 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.

Claiming that the said provision "is not clear" as to whom it refers, he then
asks the Court "to declare and answer the question of the construction and
definiteness as to who, among the present incumbent President Corazon
Aquino and Vice-President Salvador Laurel and the elected President
Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred
to under the said Section 7 (sic) of ARTICLE XVIII of the TRANSITORY
PROVISIONS of the proposed 1986 Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for
cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this

action, (Tan vs. Macapagal, 43 SCRA 677), it is elementary that this Court
assumes no jurisdiction over petitions for declaratory relief. More
importantly, the petition amounts in effect to a suit against the incumbent
President of the Republic, President Corazon C. Aquino, and it is equally
elementary that incumbent Presidents are immune from suit or from being
brought to court during the period of their incumbency and tenure.

The petition furthermore states no cause of action. Petitioner's allegation of

ambiguity or vagueness of the aforequoted provision is manifestly
gratuitous, it being a matter of public record and common public knowledge
that the Constitutional Commission refers therein to incumbent President
Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no other
persons, and provides for the extension of their term to noon of June 30,
1992 for purposes of synchronization of elections. Hence, the second
paragraph of the cited section provides for the holding on the second
Monday of May, 1992 of the first regular elections for the President and
Vice-President under said 1986 Constitution. In previous cases, the
legitimacy of the government of President Corazon C. Aquino was likewise
sought to be questioned with the claim that it was not established pursuant
to the 1973 Constitution. The said cases were dismissed outright by this
court which held that:

Petitioners have no personality to sue and their petitions state no cause of

action. For the legitimacy of the Aquino government is not a justiciable
matter. It belongs to the realm of politics where only the people of the
Philippines are the judge. And the people have made the judgment; they
have accepted the government of President Corazon C. Aquino which is in
effective control of the entire country so that it is not merely a de facto
government but in fact and law a de jure government. Moreover, the
community of nations has recognized the legitimacy of tlie present
government. All the eleven members of this Court, as reorganized, have
sworn to uphold the fundamental law of the Republic under her
government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers
League for a Better Philippines, etc. vs. President Corazon C. Aquino, et
al.]; G.R. No. 73972 [People's Crusade for Supremacy of the Constitution.
etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U.
Ganay vs. Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at
bar, mutatis mutandis, there can be no question that President Corazon C.
Aquino and Vice-President Salvador H. Laurel are the incumbent and
legitimate President and Vice-President of the Republic of the
Philippines.or the above-quoted reasons, which are fully applicable to the
petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

Saturnino Bermudez, as a lawyer, questioned the validity of the first

paragraph of Section 5 of Article XVIII of the proposed 1986 Constitution,
which provides in full as follows:

Sec. 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.

Bermudez claims that the said provision is not clear as to whom it refers,
he then asks the Court to declare and answer the question of the
construction and definiteness as to who, among the present incumbent
President Corazon Aquino and Vice President Salvador Laurel and the
elected President Ferdinand E. Marcos and Vice President Arturo M.
Tolentino being referred to as the incumbent president.

ISSUE: Whether or not said provision is ambiguous.

HELD: No. Bermudezs allegation of ambiguity or vagueness of the

aforequoted provision is manifestly gratuitous, it being a matter of public
record and common public knowledge that the Constitutional Commission
refers therein to incumbent President Aquino and Vice-President Laurel,
and to no other persons, and provides for the extension of their term to
noon of June 30, 1992 for purposes of synchronization of elections. Hence,
the second paragraph of the cited section provides for the holding on the
second Monday of May, 1992 of the first regular elections for the President
and Vice-President under said 1986 Constitution. In previous cases, the
legitimacy of the government of President Aquino was likewise sought to be
questioned with the claim that it was not established pursuant to the 1973
Constitution. The said cases were dismissed outright by the Supreme Court
which held that: Petitioners have no personality to sue and their petitions
state no cause of action. For the legitimacy of the Aquino government is not
a justiciable matter. It belongs to the realm of politics where only the people
of the Philippines are the judge. And the people have made the judgment;
they have accepted the government of President Corazon C. Aquino which
is in effective control of the entire country so that it is not merely a de facto
government but in fact and in law a de jure government. Moreover, the
community of nations has recognized the legitimacy of the present
government.

Adoption and the Effectivity of the Present Constitution

De Leon v. Esguerra, G.R. No. 78059, August 31, 1987

G.R. No. 78059 August 31, 1987

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA,

JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M.
RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the
Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC
Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO,
REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA,
ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.:

An original action for Prohibition instituted by petitioners seeking to enjoin

respondents from replacing them from their respective positions as
Barangay Captain and Barangay Councilmen of Barangay Dolores,
Municipality of Taytay, Province of Rizal.

As required by the Court, respondents submitted their Comment on the

Petition, and petitioner's their Reply to respondents' Comment.

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De

Leon was elected Barangay Captain and the other petitioners Angel S.
Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and
Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores,
Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the
Barangay Election Act of 1982.

On February 9, 1987, petitioner Alfredo M, de Leon received a

Memorandum antedated December 1, 1986 but signed by respondent OIC
Governor Benjamin Esguerra on February 8, 1987 designating respondent
Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay,
Rizal. The designation made by the OIC Governor was "by authority of the
Minister of Local Government."

Also on February 8, 1987, respondent OIC Governor signed a

Memorandum, antedated December 1, 1986 designating respondents
Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S.
Paz and Teresita L. Tolentino as members of the Barangay Council of the
same Barangay and Municipality.

That the Memoranda had been antedated is evidenced by the Affidavit of

respondent OIC Governor, the pertinent portions of which read:

xxx xxx xxx

That I am the OIC Governor of Rizal having been appointed as such on

March 20, 1986;

That as being OIC Governor of the Province of Rizal and in the

performance of my duties thereof, I among others, have signed as I did
sign the unnumbered memorandum ordering the replacement of all the
barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal;

That the above cited memorandum dated December 1, 1986 was signed by
me personally on February 8,1987;

That said memorandum was further deciminated (sic) to all concerned the
following day, February 9. 1987.

FURTHER AFFIANT SAYETH NONE.

Pasig, Metro Manila, March 23, 1987.

Before us now, petitioners pray that the subject Memoranda of February 8,

1987 be declared null and void and that respondents be prohibited from
taking over their positions of Barangay Captain and Barangay Councilmen,
respectively. Petitioners maintain that pursuant to Section 3 of the
Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be
six (6) years which shall commence on June 7, 1982 and shall continue
until their successors shall have elected and shall have qualified," or up to
June 7, 1988. It is also their position that with the ratification of the 1987
Constitution, respondent OIC Governor no longer has the authority to
replace them and to designate their successors.

On the other hand, respondents rely on Section 2, Article III of the

Provisional Constitution, promulgated on March 25, 1986, which provided:

SECTION 2. All elective and appointive officials and employees under

the 1973 Constitution shall continue in office until otherwise provided by
proclamation or executive order or upon the designation or appointment
and qualification of their successors, if such appointment is made within a
period of one year from February 25,1986.

By reason of the foregoing provision, respondents contend that the terms of

office of elective and appointive officials were abolished and that petitioners
continued in office by virtue of the aforequoted provision and not because
their term of six years had not yet expired; and that the provision in the
Barangay Election Act fixing the term of office of Barangay officials to six
(6) years must be deemed to have been repealed for being inconsistent
with the aforequoted provision of the Provisional Constitution.

Examining the said provision, there should be no question that petitioners,

as elective officials under the 1973 Constitution, may continue in office but
should vacate their positions upon the occurrence of any of the events
mentioned. 1

Since the promulgation of the Provisional Constitution, there has been no

proclamation or executive order terminating the term of elective Barangay
officials. Thus, the issue for resolution is whether or not the designation of
respondents to replace petitioners was validly made during the one-year
period which ended on February 25, 1987.

Considering the candid Affidavit of respondent OIC Governor, we hold that

February 8, 1977, should be considered as the effective date of
replacement and not December 1,1986 to which it was ante dated, in
keeping with the dictates of justice.

But while February 8, 1987 is ostensibly still within the one-year deadline,
the aforequoted provision in the Provisional Constitution must be deemed
to have been overtaken by Section 27, Article XVIII of the 1987 Constitution
reading.

SECTION 27. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the
purpose and shall supersede all previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By

that date, therefore, the Provisional Constitution must be deemed to have
been superseded. Having become inoperative, respondent OIC Governor
could no longer rely on Section 2, Article III, thereof to designate
respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of tenure specially
considering that the Barangay Election Act of 1982 declares it "a policy of
the State to guarantee and promote the autonomy of the barangays to
ensure their fullest development as self-reliant communities. 2 Similarly, the
1987 Constitution ensures the autonomy of local governments and of
political subdivisions of which the barangays form a part, 3 and limits the
President's power to "general supervision" over local governments. 4
Relevantly, Section 8, Article X of the same 1987 Constitution further
provides in part:

Sec. 8. The term of office of elective local officials, except barangay

officials, which shall be determined by law, shall be three years ...

Until the term of office of barangay officials has been determined by law,
therefore, the term of office of six (6) years provided for in the Barangay
Election Act of 1982 5 should still govern.

Contrary to the stand of respondents, we find nothing inconsistent between

the term of six (6) years for elective Barangay officials and the 1987
Constitution, and the same should, therefore, be considered as still
operative, pursuant to Section 3, Article XVIII of the 1987 Constitution,
reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations

letters of instructions, and other executive issuances not inconsistent, with
this Constitution shall remain operative until amended, repealed or
revoked.

WHEREFORE, (1) The Memoranda issued by respondent OIC Governor

on February 8, 1987 designating respondents as the Barangay Captain and
Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal,
are both declared to be of no legal force and effect; and (2) the Writ of
Prohibition is granted enjoining respondents perpetually from proceeding
with the ouster/take-over of petitioners' positions subject of this Petition.
Without costs.

SO ORDERED.
 Taada v. Tuvera, G.R. No. L-6315, December 29, 1986

G.R. No. L-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.

ESCOLIN, J.:

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, 1060-1061, 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, 837-839, 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, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-
1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754,
1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-
1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-
1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889,
1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-
2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-
492, 494-507, 509-510, 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:
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 a rd 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:
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 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
legisiative 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. 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 Pambansaand for
the diligent ones, ready access to the legislative recordsno 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 generica de
leyes, se comprenden tambien 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 I 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 or. 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:

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 and imposing no duties, and hence
affording no basis for the challenged decree. Norton v. Shelby County, 118
U.S. 425, 442; Chicago, 1. & 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.

Facts: In procuring the enforcement of public duty, a petition was sought by

Taada,Sarmiento, and Movement of Attorneys for Brotherhood Integrity
and Nationalism, Inc(MABINI) seeking 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. There is a need for Publication of Laws
tostrengthen its binding force and effect: giving access to legislative
records, givingawareness to the public of the law promulgated. The Official
Gazette, however, does notcontain publications of administrative and
executive orders that affect only a particular class of persons. The Official
Gazette, as mandated by law, presents all presidentialissuances of a
public nature or of general applicability. Also, Article 2 of the CivilCode
expressly recognized that the rule as to laws takes effect after 15 days
unless it isotherwise (for some do specify the date of effectivity) following
the completion of thepublication in the Official Gazette. However, the
decree has been misread by many; for ithas no juridical force, but a mere
legislative enactment of RA 386.

Issue: WON to provide publications of the law elsewhere, aside from the
Official Gazette, as itwould be essential to the effectivity of the said
legislative or executive act that regulatesthe acts and conduct of people as
citizens.

Held: Respondents were granted petition to publish all unpublished

issuances in the OfficialGazette, serving as a response to the maxim
ignorance as an excuse for noncompliance. The effectivity of laws shall
follow the notice to parties concerned, for such is a public right. There will
be no retroactive effect for laws with dates which appliedthe 15-day rule of
publication in the Official Gazette.

Law: Executive Order 200 Amending Article 2 of the Civil Code, June
18, 1987

EXECUTIVE ORDER NO. 200 June 18, 1987

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 . . .;"

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:

Sec. 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.

Sec. 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.

Sec. 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.