PART III: JUDICIAL REVIEW manner that sells newspapers; even a series of juicy he is sorry for the adverse
of juicy he is sorry for the adverse publicity generated by the
A. SEPARATION OF POWERS
G.R. No. L-68635 May 14, 1987
IN THE MATTER OF PROCEEDINGS FOR
DISCIPLINARY ACTION AGAINST ATTY. WENCESLAO
LAURETA, AND OF CONTEMPT PROCEEDINGS
AGAINST EVA MARAVILLA-ILUSTRE in G.R. No.
68635, entitled "EVA MARAVILLA-ILUSTRE, vs. HON.
INTERMEDIATE APPELLATE COURT, ET AL."
RESOLUTION
PER CURIAM:
Before us are 1) Atty. Wenceslao Laureta's Motion for
Reconsideration of the Per Curiam Resolution of this
Court promulgated on March 12, 1987, finding him
guilty of grave professional misconduct and suspending
him indefinitely from the practice of law; and 2) Eva
Maravilla-Ilustre's Motion for Reconsideration of the
same Resolution holding her in contempt and ordering
her to pay a fine of P1,000.00.
Essentially, Atty. Laureta maintains that the Order of
suspension without hearing violated his right to life and
due process of law and by reason thereof the Order is
null and void; that the acts of misconduct imputed to
him are without basis; that the charge against him that
it was he who had circulated to the press copies of the
Complaint filed before the Tanodbayan is unfounded
such that, even in this Court's Resolution, his having
distributed copies to the press is not stated positively;
that the banner headline which appeared In the Daily
Express is regrettable but that he was not responsible
for such "misleading headline;" that he "did nothing of
the sort" being fully conscious of his responsibilities as a
law practitioner and officer of the Court; that as a
former newspaperman, he would not have been
satisfied with merely circulating copies of the Complaint
to the press in envelopes where his name appears; "he
himself would have written stories about the case in a
articles perhaps, something that would have further filing of the complaint against the Justices before the
subjected the respondent justices to far worse Tanodbayan."
publicity;" that, on the contrary, the press conference
scheduled by Ilustre was cancelled through his efforts in
In her own Motion for Reconsideration, Eva Maravilla-
order to prevent any further adverse publicity resulting
Ilustre also raises as her main ground the alleged
from the filing of the complaint before the Tanodbayan;
deprivation of her constitutional right to due process.
that, as a matter of fact, it was this Court's Resolution
She maintains that as contempt proceedings are
that was serialized in the Bulletin Today, which
commonly treated as criminal in nature, the mode of
newspaper also made him the subject of a scathing
procedure and rules of evidence in criminal prosecution
editorial but that he "understands the cooperation
should be assimilated, as far as practicable, in this
because after all, the Court rendered a favorable
proceeding, and that she should be given every
judgment in the Bulletin union case last year;" that he
opportunity to present her side. Additionally, she states
considered it "below his dignity to plead for the chance
that, with some sympathetic lawyers, they made an
to present his side" with the Editor, Mr. Ben Rodriguez,
"investigation" and learned that the Resolution of the
"a long-time personal friend" since he "can afford to be
First Division was arrived at without any deliberation
the sacrificial lamb if only to help the Honorable Court
by its members; that Court personnel were "tight-lipped
uphold its integrity;" that he was called by a reporter of
about the matter, which is shrouded mystery" thereby
DZRH and was asked to comment on the case filed
prompting her to pursue a course which she thought
before the Tanodbayan but that his remarks were
was legal and peaceful; that there is nothing wrong in
confined to the filing of the case by Ilustre herself, and
making public the manner of voting by the Justices, and
that the judgment of the trial Court had attained its
it was for that reason that she addressed Identical
finality long ago; that he is not Ilustre's counsel before
letters to Associate Justices Andres Narvasa, Ameurfina
the Tanodbayan and did not prepare the complaint filed
M. Herrera, Isagani Cruz and Florentino Feliciano; that
before it, his professional services having been
"if the lawyers of my opponents were not a Solicitor
terminated upon the final dismissal of Ilustre's case
General, and member of the Supreme Court and a
before this Court; that similarities in the language and
Division Chairman, respectively, the resolution of May
phraseology used in the Ilustre letters, in pleadings
14, 1986 would not have aroused my suspicion;" that
before this Court and before the Tanodbayan do not
instead of taking the law into her own hands or joining
prove his authorship since other lawyers "even of a
any violent movement, she took the legitimate step of
mediocre caliber" could very easily have reproduced
making a peaceful investigation into how her case was
them; that the discussions on the merits in the Per
decided, and brought her grievance to the Tanodbayan
Curiam Resolution are "more properly addressed to the
"in exasperation" against those whom she felt had
Tanodbayan, Justice Raul M. Gonzales being competent
committed injustice against her "in an underhanded
to deal with the case before him;" that he takes
manner."
exception to the accusation that he has manifested lack
of respect for and exposed to public ridicule the two
highest Courts of the land, all he did having been to call We deny reconsideration in both instances.
attention to errors or injustice committed in the
promulgation of judgments or orders; that he has "not
The argument premised on lack of hearing and due
authorized or assisted and/or abetted and could not
process, is not impressed with merit. What due process
have prevented the contemptuous statements, conduct,
abhors is absolute lack of opportunity to be heard
acts and malicious charges of Eva Maravilla Ilustre who
(Tajonera vs. Lamaroza, et al., 110 SCRA 438 [1981]).
was no longer his client when these alleged acts were
The word "hearing" does not necessarily connote a
done; that "he is grateful to this Court for the reminder
"trial-type" proceeding. In the show-cause Resolution of
on the first duty of a lawyer which is to the Court and
this Court, dated January 29, 1987, Atty. Laureta was
not to his client, a duty that he has always impressed
given sufficient opportunity to inform this Court of the
upon his law students;" and finally, that "for the record,
1
reasons why he should not be subjected to dispose
action. His Answer, wherein he prayed that the action
against him be dismissed, contained twenty-two (22)
pages, double spaced. Eva Maravilla-Ilustre was also
given a like opportunity to explain her statements,
conduct, acts and charges against the Court and/or the
official actions of the Justices concerned. Her
Compliance Answer, wherein she prayed that the
contempt proceeding against her be dismissed,
contained nineteen (19) pages, double spaced. Both
were afforded ample latitude to explain matters fully.
Atty. Laureta denied having authored the letters written
by Ilustre, his being her counsel before the Tanodbayan,
his having circularized to the press copies of the
complaint filed before said body, and his having
committed acts unworthy of his profession. But the
Court believed otherwise and found that those letters
and the charges levelled against the Justices concerned,
of themselves and by themselves, betray not only their
malicious and contemptuous character, but also the lack
of respect for the two highest Courts of the land, a
complete obliviousness to the fundamental principle of
separation of powers, and a wanton disregard of the
cardinal doctrine of independence of the Judiciary. Res
ipsa loquitur. Nothing more needed to have been said or
proven. The necessity to conduct any further
evidentially hearing was obviated (See People vs. Hon.
Valenzuela, G.R. Nos. 63950-60, April 19, 1985, 135
SCRA 712). Atty. Laureta and Ilustre were given ample
opportunity to be heard, and were, in fact, heard.
(1)
In his Motion for Reconsideration, Atty. Laureta
reiterates his allegations in his Answer to the show-
cause Resolution that his professional services were
terminated by Ilustre after the dismissal of the main
petition by this Court; that he had nothing to do with
the contemptuous letters to the individual Justices; and
that he is not Ilustre's counsel before the Tanodbayan.
Significantly enough, however, copy of the Tanodbayan
Resolution dismissing Ilustre's Complaint was furnished
Atty. Laureta as "counsel for the complainant" at his
address of record. Of note, too, is the fact that it was he
who was following up the Complaint before the
Tanodbayan and, after its dismissal, the Motion for
Reconsideration of the Order of dismissal.
Of import, as well, is the report of Lorenzo C. Bardel, a
process server of this Court, that after having failed to
serve copy of the Per Curiam Resolution of March 12,
1987 of this Court on Ilustre personally at her address
of record, "101 F. Manalo St., Cubao, Quezon City,"
having been informed that she is 6 not a resident of the
place," he proceeded to the residence of Atty. Laureta
where the latter's wife "voluntarily received the two
copies of decision for her husband and for Ms.
Maravina-Ilustre" (p. 670, Rollo, Vol. 11).
That Ilustre subsequently received copy of this Court's
Resolution delivered to Mrs. Laureta is shown by the
fact that she filed, as of March 27, 1987, a "Petition for
Extension of Time to file Motion for Reconsideration"
and subsequently the Motion for Reconsideration. In
that Petition Ilustre acknowledged receipt of the
Resolution on March 12, 1987, the very same date Mrs.
Laureta received copy thereof. If, indeed, the lawyer-
client relationship between her husband and Ilustre had
been allegedly completely severed, all Mrs. Laureta had
to do was to return to the Sheriff the copy intended for
Ilustre. As it was, however, service on Atty. Laureta
proved to be service on Ilustre as well. The close tie- up
between the corespondents is heightened by the fact
that three process servers of this Court failed to serve
copy of this Court's Per Curiam Resolution on Ilustre
personally.
Noteworthy, as well, is that by Atty. Laureta's own
admission, he was the one called by a "reporter" of
DZRH to comment on the Ilustre charges before the
Tanodbayan. If, in fact, he had nothing to do with the
complaint, he would not have been pinpointed at all.
And if his disclaimer were the truth, the logical step for
him to have taken was to refer the caller to the lawyer/s
allegedly assisting Ilustre, at the very least, out of
elementary courtesy and propriety. But he did nothing
of the sort. " He gave his comment with alacrity.
The impudence and lack of respect of Atty. Laureta for
this Court again surfaces when he asserts in his Motion
for Reconsideration that he "understands the
cooperation" of the Bulletin Today as manifested in the
serialized publication of the Per Curiam Resolution of
this Court and his being subjected to a scathing editorial
by the same newspaper "because after all, the Court
rendered a favorable judgment in the Bulletin union
case last year." The malice lurking in that statement is
most unbecoming of an officer of the Court and is an
added reason for denying reconsideration.
Further, Atty. Laureta stubbornly contends that
discussions on the merits in the Court's Per Curiam
Resolution are more properly addressed to the
Tanodbayan, forgetting, however, his own discourse on
the merits in his Answer to this Court's Resolution
dated January 29, 1987. He thus incorrigibly insists on
subordinating the Judiciary to the executive
notwithstanding the categorical pronouncement in the
Per Curiam Resolution of March 12, 1987, that Article
204 of the Revised Penal Code has no application to the
members of a collegiate Court; that a charge of violation
of the Anti-Graft and Corrupt Practices Act on the
ground that a collective decision is "unjust" cannot
prosper; plus the clear and extended dissertation in the
same Per Curiam Resolution on the fundamental
principle of separation of powers and of checks and
balances, pursuant to which it is this Court "entrusted
exclusively with the judicial power to adjudicate with
finality all justifiable disputes, public and private. No
other department or agency may pass upon its
judgments or declare them 'unjust' upon controlling and
irresistible reasons of public policy and of sound
practice."
Atty. Laureta's protestations that he has done his best to
protect and uphold the dignity of this Court are belied
by environmental facts and circumstances. His
apologetic stance for the "adverse publicity" generated
by the filing of the charges against the Justices
concerned before the Tanodbayan rings with insincerity.
The complaint was calculated precisely to serve that
very purpose. The threat to bring the case to "another
forum of justice" was implemented to the fun. Besides,
he misses the heart of the matter. Exposure to the glare
of publicity is an occupational hazard. If he has been
visited with disciplinary sanctions it is because by his
conduct, acts and statements, he has, overall,
deliberately sought to destroy the "authenticity,
integrity, and conclusiveness of collegiate acts," to
"undermine the role of the Supreme Court as the final
arbiter of all justifiable disputes," and to subvert public
confidence in the integrity of the Courts and the Justices
concerned, and in the orderly administration of justice.
2
In fine, we discern nothing in Atty. Laureta's Motion for
Reconsideration that would call for a modification,
much less a reversal, of our finding that he is guilty of
grave professional misconduct that renders him unfit to
continue to be entrusted with the duties and
responsibilities pertaining to an attorney and officer of
the Court.
(2)
Neither do we find merit in Ilustre's Motion for
Reconsideration. She has turned deaf ears to any reason
or clarification. She and her counsel have refused to
accept the untenability of their case and the inevitability
of losing in Court. They have allowed suspicion alone to
blind their actions and in so doing degraded the
administration of justice. "Investigation" was utterly
uncalled for. All conclusions and judgments of the Court,
be they en banc or by Division, are arrived at only after
deliberation. The fact that no dissent was indicated in
the Minutes of the proceedings held on May 14, 1986
showed that the members of the Division voted
unanimously. Court personnel are not in a position to
know the voting in any case because all deliberations
are held behind closed doors without any one of them
being present. No malicious inferences should have
been drawn from their inability to furnish the
information Ilustre and Atty. Laureta desired The
personality of the Solicitor General never came into the
picture. It was Justice Abad Santos, and not Justice Yap,
who was Chairman of the First Division when the
Resolution of May 14, 1986 denying the Petition was
rendered. Thereafter Justice Yap inhibited himself from
any participation. The fact that the Court en banc upheld
the challenged Resolutions of the First Division
emphasizes the irrespective of Ilustre's case irrespective
of the personalities involved.
Additionally, Ilustre has been trifling with this Court.
She has given our process servers the run-around.
Three of them failed to serve on her personally her copy
of this Court's Per Curiam Resolution of March 12, 1987
at her address of record. Mrs. Laureta informed process
server Lorenzo C. Bardel that Ilustre was residing at 17-
D, Quezon St., Tondo, Manila. Romeo C. Regala, another
process server, went to that address to serve copy of the
Resolution but he reported:
4. That inspite of diligent efforts to
locate the address of ms.Eva
Maravilla-Ilustre, said address
could not be located;
5. That I even asked the occupants
(Cerdan Family) of No. 17 Quezon
Street, Tondo, Manila, and they
informed that there is no such Ms.
Eva Maravilla-Ilustre in the
neighborhood and/or in the
vicinity; ... (p. 672, Rollo, Vol. 11).
The third process server, Nelson C. Cabesuela, was also
unable to serve copy of this Court's Resolution on
Ilustre. He reported:
2. On March 17, 1987, at about
9:30 A.M., I arrived at the house in
the address furnished at; the
notice of judgment (101 Felix
Manalo St., Cubao, Quezon City),
and was received by an elderly
woman who admitted to be the
owner of the house but
vehemently refused to be
Identified, and told me that she
does not know the addressee
Maravilla, and told me further that
she always meets different persons
looking for Miss Maravilla because
the latter always gives the address
of her house;
3. That, I was reminded of an
incident that I also experienced in
the same place trying to serve a
resolution to Miss Maravilla which
was returned unserved because
she is not known in the place; ... (p.
674, Rollo, Vol. II).
And yet, in her Petition for Extension of Time and in her
Motion for Reconsideration she persists in giving that
address at 101 Felix Manalo St., Cubao, Quezon City,
where our process servers were told that she was not a
resident of and that she was unknown thereat. If for her
contumacious elusiveness and lack of candor alone,
Ilustre deserves no further standing before this Court.
ACCORDINGLY, the respective Motions for
reconsideration of Atty. Wenceslao G. Laureta for the
setting aside of the order suspending him from the
practice of law, and of Eva Maravilla Ilustre for the lifting
of the penalty for contempt are DENIED, and this denial
is FINAL. Eva Maravilla Ilustre shall pay the fine of
P1,000.00 imposed on her within ten (10) days from
notice, or, suffer imprisonment for ten (10) days upon
failure to pay said fine within the stipulated period.
SO ORDERED.
A. SEPARATION OF POWERS
G.R. No. 71977 February 27, 1987
DEMETRIO G. DEMETRIA, M.P., AUGUSTO S.
SANCHEZ, M.P., ORLANDO S. MERCADO, M.P.,
HONORATO Y. AQUINO, M.P., ZAFIRO L. RESPICIO,
M.P., DOUGLAS R. CAGAS, M.P., OSCAR F. SANTOS,
M.P., ALBERTO G. ROMULO, M.P., CIRIACO R.
ALFELOR, M.P., ISIDORO E. REAL, M.P., EMIGDIO L.
LINGAD, M.P., ROLANDO C. MARCIAL, M.P., PEDRO M.
MARCELLANA, M.P., VICTOR S. ZIGA, M.P., and
ROGELIO V. GARCIA. M.P., petitioners,
vs.
HON. MANUEL ALBA in his capacity as the MINISTER
OF THE BUDGET and VICTOR MACALINGCAG in his
capacity as the TREASURER OF THE
PHILIPPINES, respondents.
FERNAN, J.:
Assailed in this petition for prohibition with prayer for a
writ of preliminary injunction is the constitutionality of
the first paragraph of Section 44 of Presidential Decree
No. 1177, otherwise known as the "Budget Reform
Decree of 1977."
Petitioners, who filed the instant petition as concerned
citizens of this country, as members of the National
Assembly/Batasan Pambansa representing their
3
millions of constituents, as parties with general interest
common to all the people of the Philippines, and as
taxpayers whose vital interests may be affected by the
outcome of the reliefs prayed for" 1 listed the grounds
relied upon in this petition as follows:
A. SECTION 44 OF THE 'BUDGET
REFORM DECREE OF 1977'
INFRINGES UPON THE
FUNDAMENTAL LAW BY
AUTHORIZING THE ILLEGAL
TRANSFER OF PUBLIC MONEYS.
B. SECTION 44 OF PRESIDENTIAL
DECREE NO. 1177 IS REPUGNANT
TO THE CONSTITUTION AS IT
FAILS TO SPECIFY THE
OBJECTIVES AND PURPOSES FOR
WHICH THE PROPOSED
TRANSFER OF FUNDS ARE TO BE
MADE.
C. SECTION 44 OF PRESIDENTIAL
DECREE NO. 1177 ALLOWS THE
PRESIDENT TO OVERRIDE THE
SAFEGUARDS, FORM AND
PROCEDURE PRESCRIBED BY THE
CONSTITUTION IN APPROVING
APPROPRIATIONS.
D. SECTION 44 OF THE SAME
DECREE AMOUNTS TO AN UNDUE
DELEGATION OF LEGISLATIVE
POWERS TO THE EXECUTIVE.
E. THE THREATENED AND
CONTINUING TRANSFER OF
FUNDS BY THE PRESIDENT AND
THE IMPLEMENTATION THEREOF
BY THE BUDGET MINISTER AND
THE TREASURER OF THE
PHILIPPINES ARE WITHOUT OR
IN EXCESS OF THEIR AUTHORITY
AND JURISDICTION. 2
Commenting on the petition in compliance with the
Court resolution dated September 19, 1985, the
Solicitor General, for the public respondents, questioned
the legal standing of petitioners, who were allegedly
merely begging an advisory opinion from the Court,
there being no justiciable controversy fit for resolution
or determination. He further contended that the
provision under consideration was enacted pursuant to
Section 16[5], Article VIII of the 1973 Constitution; and
that at any rate, prohibition will not lie from one branch
of the government to a coordinate branch to enjoin the
performance of duties within the latter's sphere of
responsibility.
On February 27, 1986, the Court required the
petitioners to file a Reply to the Comment. This, they
did, stating, among others, that as a result of the change
in the administration, there is a need to hold the
resolution of the present case in abeyance "until
developments arise to enable the parties to concretize
their respective stands." 3
Thereafter, We required public respondents to file a
rejoinder. The Solicitor General filed a rejoinder with a
motion to dismiss, setting forth as grounds therefor the
abrogation of Section 16[5], Article VIII of the 1973
Constitution by the Freedom Constitution of March 25,
1986, which has allegedly rendered the instant petition
moot and academic. He likewise cited the "seven pillars"
enunciated by Justice Brandeis in Ashwander v. TVA, 297
U.S. 288 (1936) 4 as basis for the petition's dismissal.
In the case of Evelio B. Javier v. The Commission on
Elections and Arturo F. Pacificador, G.R. Nos. 68379-81,
September 22, 1986, We stated that:
The abolition of the Batasang
Pambansa and the disappearance
of the office in dispute between the
petitioner and the private
respondents — both of whom have
gone their separate ways — could
be a convenient justification for
dismissing the case. But there are
larger issues involved that must be
resolved now, once and for all, not
only to dispel the legal ambiguities
here raised. The more important
purpose is to manifest in the
clearest possible terms that this
Court will not disregard and in
effect condone wrong on the
simplistic and tolerant pretext that
the case has become moot and
academic.
The Supreme Court is not only the
highest arbiter of legal questions
but also the conscience of the
government. The citizen comes to
us in quest of law but we must also
give him justice. The two are not
always the same. There are times
when we cannot grant the latter
because the issue has been settled
and decision is no longer possible
according to the law. But there are
also times when although the
dispute has disappeared, as in this
case, it nevertheless cries out to be
resolved. Justice demands that we
act then, not only for the
vindication of the outraged right,
though gone, but also for the
guidance of and as a restraint upon
the future.
It is in the discharge of our role in society, as above-
quoted, as well as to avoid great disservice to national
interest that We take cognizance of this petition and
thus deny public respondents' motion to dismiss.
Likewise noteworthy is the fact that the new
Constitution, ratified by the Filipino people in the
plebiscite held on February 2, 1987, carries verbatim
section 16[5], Article VIII of the 1973 Constitution
under Section 24[5], Article VI. And while Congress has
not officially reconvened, We see no cogent reason for
further delaying the resolution of the case at bar.
The exception taken to petitioners' legal standing
deserves scant consideration. The case of Pascual v.
Secretary of Public Works, et al., 110 Phil. 331, is
authority in support of petitioners' locus standi. Thus:
4
 Again, it is well-settled that the
validity of a statute may be
contested only by one who will
sustain a direct injury in
consequence of its enforcement.
Yet, there are many decisions
nullifying at the instance of
taxpayers, laws providing for the
disbursement of public funds,
upon the theory that the
expenditure of public funds by an
officer of the state for the purpose
of administering
an unconstitutional actconstitutes
a misapplication of such funds
which may be enjoined at the
request of a taxpayer. Although
there are some decisions to the
contrary, the prevailing view in the
United States is stated in the
American Jurisprudence as
follows:
In the determination of the degree of interest essential
to give the requisite standing to attack the
constitutionality of a statute, the general rule is that not
only persons individually affected, but also taxpayers
have sufficient interest in preventing the illegal
expenditures of moneys raised by taxation and may
therefore question the constitutionality of statutes
requiring expenditure of public moneys. [ 11 Am. Jur.
761, Emphasis supplied. ]
Moreover, in Tan v. Macapagal, 43 SCRA 677
and Sanidad v. Comelec, 73 SCRA 333, We said that as
regards taxpayers' suits, this Court enjoys that open
discretion to entertain the same or not.
The conflict between paragraph 1 of Section 44 of
Presidential Decree No. 1177 and Section 16[5], Article
VIII of the 1973 Constitution is readily perceivable from
a mere cursory reading thereof. Said paragraph 1 of
Section 44 provides:
The President shall have the
authority to transfer any fund,
appropriated for the different
departments, bureaus, offices and
agencies of the Executive
Department, which are included in
the General Appropriations Act, to
any program, project or activity of
any department, bureau, or office
included in the General
Appropriations Act or approved
after its enactment.
On the other hand, the constitutional provision under
consideration reads as follows:
Sec. 16[5]. No law shall be passed
authorizing any transfer of
appropriations, however, the
President, the Prime Minister, the
Speaker, the Chief Justice of the
Supreme Court, and the heads of
constitutional commis ions may by
law be authorized to augment any
item in the general appropriations
law for their respective offices
from savings in other items of their
respective appropriations.
The prohibition to transfer an appropriation for one
item to another was explicit and categorical under the
1973 Constitution. However, to afford the heads of the
different branches of the government and those of the
constitutional commissions considerable flexibility in
the use of public funds and resources, the constitution
allowed the enactment of a law authorizing the transfer
of funds for the purpose of augmenting an item from
savings in another item in the appropriation of the
government branch or constitutional body concerned.
The leeway granted was thus limited. The purpose and
conditions for which funds may be transferred were
specified, i.e. transfer may be allowed for the purpose of
augmenting an item and such transfer may be made
only if there are savings from another item in the
appropriation of the government branch or
constitutional body.
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over
extends the privilege granted under said Section 16[5].
It empowers the President to indiscriminately transfer
funds from one department, bureau, office or agency of
the Executive Department to any program, project or
activity of any department, bureau or office included in
the General Appropriations Act or approved after its
enactment, without regard as to whether or not the
funds to be transferred are actually savings in the item
from which the same are to be taken, or whether or not
the transfer is for the purpose of augmenting the item to
which said transfer is to be made. It does not only
completely disregard the standards set in the
fundamental law, thereby amounting to an undue
delegation of legislative powers, but likewise goes
beyond the tenor thereof. Indeed, such constitutional
infirmities render the provision in question null and
void.
"For the love of money is the root of all evil: ..." and
money belonging to no one in particular, i.e. public
funds, provide an even greater temptation for
misappropriation and embezzlement. This, evidently,
was foremost in the minds of the framers of the
constitution in meticulously prescribing the rules
regarding the appropriation and disposition of public
funds as embodied in Sections 16 and 18 of Article VIII
of the 1973 Constitution. Hence, the conditions on the
release of money from the treasury [Sec. 18(1)]; the
restrictions on the use of public funds for public
purpose [Sec. 18(2)]; the prohibition to transfer an
appropriation for an item to another [See. 16(5) and the
requirement of specifications [Sec. 16(2)], among
others, were all safeguards designed to forestall abuses
in the expenditure of public funds. Paragraph 1 of
Section 44 puts all these safeguards to naught. For, as
correctly observed by petitioners, in view of the
unlimited authority bestowed upon the President, "...
Pres. Decree No. 1177 opens the floodgates for the
enactment of unfunded appropriations, results in
uncontrolled executive expenditures, diffuses
accountability for budgetary performance and
entrenches the pork barrel system as the ruling party
may well expand [sic] public money not on the basis of
development priorities but on political and personal
expediency." 5The contention of public respondents that
paragraph 1 of Section 44 of P.D. 1177 was enacted
pursuant to Section 16(5) of Article VIII of the 1973
Constitution must perforce fall flat on its face.
5
Another theory advanced by public respondents is that
prohibition will not lie from one branch of the
government against a coordinate branch to enjoin the
performance of duties within the latter's sphere of
responsibility.
Thomas M. Cooley in his "A Treatise on the
Constitutional Limitations," Vol. 1, Eight Edition, Little,
Brown and Company, Boston, explained:
... The legislative and judicial are
coordinate departments of the
government, of equal dignity; each
is alike supreme in the exercise of
its proper functions, and cannot
directly or indirectly, while acting
within the limits of its authority, be
subjected to the control or
supervision of the other, without
an unwarrantable assumption by
that other of power which, by the
Constitution, is not conferred upon
it. The Constitution apportions the
powers of government, but it does
not make any one of the three
departments subordinate to
another, when exercising the trust
committed to it. The courts may
declare legislative enactments
unconstitutional and void in some
cases, but not because the judicial
power is superior in degree or
dignity to the legislative. Being
required to declare what the law is
in the cases which come before
them, they must enforce the
Constitution, as the paramount
law, whenever a legislative
enactment comes in conflict with
it. But the courts sit, not to review
or revise the legislative action, but
to enforce the legislative will, and
it is only where they find that the
legislature has failed to keep
within its constitutional limits, that
they are at liberty to disregard its
action; and in doing so, they only
do what every private citizen may
do in respect to the mandates of The nation has not recovered from the shock, and worst,
the courts when the judges the economic destitution brought about by the
assumed to act and to render plundering of the Treasury by the deposed dictator and
judgments or decrees without his cohorts. A provision which allows even the slightest
jurisdiction. "In exercising this possibility of a repetition of this sad experience cannot
high authority, the judges claim no remain written in our statute books.
judicial supremacy; they are only
the administrators of the public
WHEREFORE, the instant petition is granted. Paragraph
will. If an act of the legislature is
1 of Section 44 of Presidential Decree No. 1177 is
held void, it is not because the
hereby declared null and void for being
judges have any control over the
unconstitutional.
legislative power, but because the
act is forbidden by the
Constitution, and because the will SO ORDERED.
of the people, which is therein
declared, is paramount to that of
B. THEORY AND JUSTIFICATION OF JUDICIAL
their representatives expressed in
REVIEW
any law." [Lindsay v.
Commissioners, & c., 2 Bay, 38, 61;
People v. Rucker, 5 Col. 5; Russ v. G.R. No. L-45081 July 15, 1936
Com., 210 Pa. St. 544; 60 Atl. 169, 1
L.R.A. [N.S.] 409, 105 Am. St. Rep.
JOSE A. ANGARA, petitioner,
825] (pp. 332-334).
vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA,
Indeed, where the legislature or the executive branch is MIGUEL CASTILLO, and DIONISIO C.
acting within the limits of its authority, the judiciary MAYOR,respondents.
cannot and ought not to interfere with the former. But
where the legislature or the executive acts beyond the
Godofredo Reyes for petitioner.
scope of its constitutional powers, it becomes the duty
Office of the Solicitor General Hilado for respondent
of the judiciary to declare what the other branches of
Electoral Commission.
the government had assumed to do as void. This is the
Pedro Ynsua in his own behalf.
essence of judicial power conferred by the Constitution
No appearance for other respondents.
"in one Supreme Court and in such lower courts as may
be established by law" [Art. VIII, Section 1 of the 1935
Constitution; Art. X, Section 1 of the 1973 Constitution LAUREL, J.:
and which was adopted as part of the Freedom
Constitution, and Art. VIII, Section 1 of the 1987
This is an original action instituted in this court by the
Constitution] and which power this Court has exercised
petitioner, Jose A. Angara, for the issuance of a writ of
in many instances. *
prohibition to restrain and prohibit the Electoral
Commission, one of the respondents, from taking
Public respondents are being enjoined from acting further cognizance of the protest filed by Pedro Ynsua,
under a provision of law which We have earlier another respondent, against the election of said
mentioned to be constitutionally infirm. The general petitioner as member of the National Assembly for the
principle relied upon cannot therefore accord them the first assembly district of the Province of Tayabas.
protection sought as they are not acting within their
"sphere of responsibility" but without it. The facts of this case as they appear in the petition and
as admitted by the respondents are as follows:
6
(1) That in the elections of September 17, (5) That on December 8, 1935, the herein (9) That on December 31, 1935, the herein
1935, the petitioner, Jose A. Angara, and the respondent Pedro Ynsua filed before the petitioner, Jose A. Angara, filed a "Reply" to
respondents, Pedro Ynsua, Miguel Castillo Electoral Commission a "Motion of Protest" the aforesaid "Answer to the Motion of
and Dionisio Mayor, were candidates voted against the election of the herein petitioner, Dismissal";
for the position of member of the National Jose A. Angara, being the only protest filed
Assembly for the first district of the Province after the passage of Resolutions No. 8
(10) That the case being submitted for
of Tayabas; aforequoted, and praying, among other-
decision, the Electoral Commission
things, that said respondent be declared
promulgated a resolution on January 23,
elected member of the National Assembly for
(2) That on October 7, 1935, the provincial 1936, denying herein petitioner's "Motion to
the first district of Tayabas, or that the
board of canvassers, proclaimed the Dismiss the Protest."
election of said position be nullified;
petitioner as member-elect of the National
Assembly for the said district, for having
The application of the petitioner sets forth the following
received the most number of votes; (6) That on December 9, 1935, the Electoral
grounds for the issuance of the writ prayed for:
Commission adopted a resolution, paragraph
6 of which provides:
(3) That on November 15, 1935, the
(a) That the Constitution confers exclusive
petitioner took his oath of office;
jurisdiction upon the electoral Commission
6. La Comision no considerara
solely as regards the merits of contested
ninguna protesta que no se haya
(4) That on December 3, 1935, the National elections to the National Assembly;
presentado en o antes de este dia.
Assembly in session assembled, passed the
following resolution:
(b) That the Constitution excludes from said
(7) That on December 20, 1935, the herein
jurisdiction the power to regulate the
petitioner, Jose A. Angara, one of the
[No. 8] proceedings of said election contests, which
respondents in the aforesaid protest, filed
power has been reserved to the Legislative
before the Electoral Commission a "Motion to
Department of the Government or the
RESOLUCION Dismiss the Protest", alleging (a) that
National Assembly;
CONFIRMANDO LAS Resolution No. 8 of Dismiss the Protest",
ACTAS DE AQUELLOS alleging (a) that Resolution No. 8 of the
DIPUTADOS CONTRA National Assembly was adopted in the (c) That like the Supreme Court and other
QUIENES NO SE HA legitimate exercise of its constitutional courts created in pursuance of the
PRESENTADO prerogative to prescribe the period during Constitution, whose exclusive jurisdiction
PROTESTA. which protests against the election of its relates solely to deciding the merits of
members should be presented; (b) that the controversies submitted to them for decision
aforesaid resolution has for its object, and is and to matters involving their internal
Se resuelve: Que las
the accepted formula for, the limitation of organization, the Electoral Commission can
actas de eleccion de los
said period; and (c) that the protest in regulate its proceedings only if the National
Diputados contra
question was filed out of the prescribed Assembly has not availed of its primary
quienes no se hubiere
period; power to so regulate such proceedings;
presentado
debidamente una
protesta antes de la (8) That on December 27, 1935, the herein (d) That Resolution No. 8 of the National
adopcion de la presente respondent, Pedro Ynsua, filed an "Answer to Assembly is, therefore, valid and should be
resolucion sean, como the Motion of Dismissal" alleging that there is respected and obeyed;
por la presente, son no legal or constitutional provision barring
aprobadas y the presentation of a protest against the
(e) That under paragraph 13 of section 1 of
confirmadas. election of a member of the National
the ordinance appended to the Constitution
Assembly after confirmation;
and paragraph 6 of article 7 of the Tydings-
Adoptada, 3 de McDuffie Law (No. 127 of the 73rd Congress
diciembre, 1935. of the United States) as well as under section

7
 1 and 3 (should be sections 1 and 2) of article
VIII of the Constitution, this Supreme Court
has jurisdiction to pass upon the fundamental
question herein raised because it involves an
interpretation of the Constitution of the
Philippines.
On February 25, 1936, the Solicitor-General appeared
and filed an answer in behalf of the respondent
Electoral Commission interposing the following special
defenses:
(a) That the Electoral Commission has been
created by the Constitution as an
instrumentality of the Legislative Department
invested with the jurisdiction to decide "all
contests relating to the election, returns, and
qualifications of the members of the National
Assembly"; that in adopting its resolution of
December 9, 1935, fixing this date as the last
day for the presentation of protests against
the election of any member of the National
Assembly, it acted within its jurisdiction and
in the legitimate exercise of the implied
powers granted it by the Constitution to
adopt the rules and regulations essential to
carry out the power and functions conferred
upon the same by the fundamental law; that
in adopting its resolution of January 23, 1936,
overruling the motion of the petitioner to
dismiss the election protest in question, and
declaring itself with jurisdiction to take
cognizance of said protest, it acted in the
legitimate exercise of its quasi-judicial
functions a an instrumentality of the
Legislative Department of the
Commonwealth Government, and hence said
act is beyond the judicial cognizance or
control of the Supreme Court;
(b) That the resolution of the National
Assembly of December 3, 1935, confirming
the election of the members of the National
Assembly against whom no protest had thus
far been filed, could not and did not deprive
the electoral Commission of its jurisdiction to
take cognizance of election protests filed
within the time that might be set by its own (d) That neither the law nor the Constitution
rules: requires confirmation by the National
Assembly of the election of its members, and
that such confirmation does not operate to
(c) That the Electoral Commission is a body
limit the period within which protests should
invested with quasi-judicial functions,
be filed as to deprive the Electoral
created by the Constitution as an
Commission of jurisdiction over protest filed
instrumentality of the Legislative
subsequent thereto;
Department, and is not an "inferior tribunal,
or corporation, or board, or person" within
the purview of section 226 and 516 of the (e) That the Electoral Commission is an
Code of Civil Procedure, against which independent entity created by the
prohibition would lie. Constitution, endowed with quasi-judicial
functions, whose decision are final and
unappealable;
The respondent Pedro Ynsua, in his turn, appeared and
filed an answer in his own behalf on March 2, 1936,
setting forth the following as his special defense: ( f ) That the electoral Commission, as a
constitutional creation, is not an inferior
tribunal, corporation, board or person, within
(a) That at the time of the approval of the
the terms of sections 226 and 516 of the Code
rules of the Electoral Commission on
of Civil Procedure; and that neither under the
December 9, 1935, there was no existing law
provisions of sections 1 and 2 of article II
fixing the period within which protests
(should be article VIII) of the Constitution
against the election of members of the
and paragraph 13 of section 1 of the
National Assembly should be filed; that in
Ordinance appended thereto could it be
fixing December 9, 1935, as the last day for
subject in the exercise of its quasi-judicial
the filing of protests against the election of
functions to a writ of prohibition from the
members of the National Assembly, the
Supreme Court;
Electoral Commission was exercising a power
impliedly conferred upon it by the
Constitution, by reason of its quasi-judicial (g) That paragraph 6 of article 7 of the
attributes; Tydings-McDuffie Law (No. 127 of the 73rd
Congress of the united States) has no
application to the case at bar.
(b) That said respondent presented his
motion of protest before the Electoral
Commission on December 9, 1935, the last The case was argued before us on March 13, 1936.
day fixed by paragraph 6 of the rules of the Before it was submitted for decision, the petitioner
said Electoral Commission; prayed for the issuance of a preliminary writ of
injunction against the respondent Electoral Commission
which petition was denied "without passing upon the
(c) That therefore the Electoral Commission
merits of the case" by resolution of this court of March
acquired jurisdiction over the protest filed by
21, 1936.
said respondent and over the parties thereto,
and the resolution of the Electoral
Commission of January 23, 1936, denying There was no appearance for the other respondents.
petitioner's motion to dismiss said protest
was an act within the jurisdiction of the said
The issues to be decided in the case at bar may be
commission, and is not reviewable by means
reduced to the following two principal propositions:
of a writ of prohibition;
8
 1. Has the Supreme Court jurisdiction over
the Electoral Commission and the subject
matter of the controversy upon the foregoing
related facts, and in the affirmative,
2. Has the said Electoral Commission acted
without or in excess of its jurisdiction in
assuming to the cognizance of the protest
filed the election of the herein petitioner
notwithstanding the previous confirmation of
such election by resolution of the National
Assembly?
We could perhaps dispose of this case by passing
directly upon the merits of the controversy. However,
the question of jurisdiction having been presented, we
do not feel justified in evading the issue. Being a
case primæ impressionis, it would hardly be consistent
with our sense of duty to overlook the broader aspect of
the question and leave it undecided. Neither would we
be doing justice to the industry and vehemence of
counsel were we not to pass upon the question of
jurisdiction squarely presented to our consideration.
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. For example, the Chief
Executive under our Constitution is so far made a check
on the legislative power that this assent is required in
the enactment of laws. This, however, is subject to the
further check that a bill may become a law
notwithstanding the refusal of the President to approve
it, by a vote of two-thirds or three-fourths, as the case
may be, of the National Assembly. The President has
also the right to convene the Assembly in special session
whenever he chooses. On the other hand, the National
Assembly operates as a check on the Executive in the
sense that its consent through its Commission on
Appointments is necessary in the appointments of
certain officers; and the concurrence of a majority of all
its members is essential to the conclusion of treaties.
Furthermore, in its power to determine what courts
other than the Supreme Court shall be established, to
define their jurisdiction and to appropriate funds for
their support, the National Assembly controls the
judicial department to a certain extent. The Assembly
also exercises the judicial power of trying
impeachments. 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.
But in the main, the Constitution has blocked out with
deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of
the government. The overlapping and interlacing of
functions and duties between the several departments,
however, sometimes makes it hard to say just where the
one leaves off and the other begins. 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 limitation 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
governments of the government.
9
But much as we might postulate on the internal checks
of power provided in our Constitution, it ought not the
less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of
constitutional liberty . . . the people who are authors of
this blessing must also be its guardians . . . their eyes
must be ever ready to mark, their voice to pronounce . . .
aggression on the authority of their constitution." In the
Last and ultimate analysis, then, must the success of our
government in the unfolding years to come be tested in
the crucible of Filipino minds and hearts than in
consultation rooms and court chambers.
In the case at bar, the national Assembly has by
resolution (No. 8) of December 3, 1935, confirmed the
election of the herein petitioner to the said body. On the
other hand, the Electoral Commission has by resolution
adopted on December 9, 1935, fixed said date as the last
day for the filing of protests against the election, returns
and qualifications of members of the National Assembly,
notwithstanding the previous confirmation made by the
National Assembly as aforesaid. If, as contended by the
petitioner, the resolution of the National Assembly has
the effect of cutting off the power of the Electoral
Commission to entertain protests against the election,
returns and qualifications of members of the National
Assembly, submitted after December 3, 1935, then the
resolution of the Electoral Commission of December 9,
1935, is mere surplusage and had no effect. But, if, as
contended by the respondents, the Electoral
Commission has the sole power of regulating its
proceedings to the exclusion of the National Assembly,
then the resolution of December 9, 1935, by which the
Electoral Commission fixed said date as the last day for
filing protests against the election, returns and
qualifications of members of the National Assembly,
should be upheld.
Here is then presented an actual controversy involving
as it does a conflict of a grave constitutional nature
between the National Assembly on the one hand, and
the Electoral Commission on the other. From the very
nature of the republican government established in our
country in the light of American experience and of our
own, upon the judicial department is thrown the solemn
and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries.
The Electoral Commission, as we shall have occasion to
refer hereafter, is a constitutional organ, created for a
specific purpose, namely to determine all contests
relating to the election, returns and qualifications of the
members of the National Assembly. Although the
Electoral Commission may not be interfered with, when
and while acting within the limits of its authority, it does
not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and
that it is not subject to constitutional restrictions. The
Electoral Commission is not a separate department of
the government, and even if it were, conflicting claims of
authority under the fundamental law between
department powers and agencies of the government are
necessarily determined by the judiciary in justifiable
and appropriate cases. Discarding the English type and
other European types of constitutional government, the
framers of our constitution adopted the American type
where the written constitution is interpreted and given
effect by the judicial department. In some countries
which have declined to follow the American example,
provisions have been inserted in their constitutions
prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a
recognition of what otherwise would be the rule that in
the absence of direct prohibition courts are bound to
assume what is logically their function. For instance, the
Constitution of Poland of 1921, expressly provides that
courts shall have no power to examine the validity of
statutes (art. 81, chap. IV). The former Austrian
Constitution contained a similar declaration. In
countries whose constitutions are silent in this respect,
courts have assumed this power. This is true in Norway,
Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to
constitutional Charter of the Czechoslovak Republic,
February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitutional of the Republic of 1931) especial
constitutional courts are established to pass upon the
validity of ordinary laws. In our case, the nature of the
present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of
authority between two agencies created by the
Constitution. Were we to decline to take cognizance of
the controversy, who will determine the conflict? And if
the conflict were left undecided and undetermined,
would not a void be thus created in our constitutional
system which may be in the long run prove destructive
of the entire framework? To ask these questions is to
answer them. Natura vacuum abhorret, so must we
avoid exhaustion in our constitutional system. Upon
principle, reason and authority, we are clearly of the
opinion that upon the admitted facts of the present case,
this court has jurisdiction over the Electoral
Commission and the subject mater of the present
controversy for the purpose of determining the
character, scope and extent of the constitutional grant to
the Electoral Commission as "the sole judge of all
contests relating to the election, returns and
qualifications of the members of the National Assembly."
Having disposed of the question of jurisdiction, we shall
now proceed to pass upon the second proposition and
determine whether the Electoral Commission has acted
without or in excess of its jurisdiction in adopting its
resolution of December 9, 1935, and in assuming to take
cognizance of the protest filed against the election of the
herein petitioner notwithstanding the previous
confirmation thereof by the National Assembly on
December 3, 1935. As able counsel for the petitioner has
pointed out, the issue hinges on the interpretation of
section 4 of Article VI of the Constitution which
provides:
"SEC. 4. There shall be an Electoral Commission
composed of three Justice of the Supreme Court
designated by the Chief Justice, and of six Members
chosen by the National Assembly, three of whom shall
be nominated by the party having the largest number of
votes, and three by the party having the second largest
number of votes therein. The senior Justice in the
Commission shall be its Chairman. The Electoral
Commission shall be the sole judge of all contests
relating to the election, returns and qualifications of the
members of the National Assembly." It is imperative,
therefore, that we delve into the origin and history of
this constitutional provision and inquire into the
intention of its framers and the people who adopted it
so that we may properly appreciate its full meaning,
import and significance.
The original provision regarding this subject in the Act
of Congress of July 1, 1902 (sec. 7, par. 5) laying down
the rule that "the assembly shall be the judge of the
elections, returns, and qualifications of its members",
was taken from clause 1 of section 5, Article I of the
Constitution of the United States providing that "Each
House shall be the Judge of the Elections, Returns, and
10
Qualifications of its own Members, . . . ." The Act of
Congress of August 29, 1916 (sec. 18, par. 1) modified
this provision by the insertion of the word "sole" as
follows: "That the Senate and House of Representatives,
respectively, shall be the sole judges of the elections,
returns, and qualifications of their elective members . . ."
apparently in order to emphasize the exclusive the
Legislative over the particular case s therein specified.
This court has had occasion to characterize this grant of
power to the Philippine Senate and House of
Representatives, respectively, as "full, clear and
complete" (Veloso vs. Boards of Canvassers of Leyte and
Samar [1919], 39 Phil., 886, 888.)
The first step towards the creation of an independent
tribunal for the purpose of deciding contested elections
to the legislature was taken by the sub-committee of five
appointed by the Committee on Constitutional
Guarantees of the Constitutional Convention, which sub-
committee submitted a report on August 30, 1934,
recommending the creation of a Tribunal of
Constitutional Security empowered to hear legislature
but also against the election of executive officers for
whose election the vote of the whole nation is required,
as well as to initiate impeachment proceedings against
specified executive and judicial officer. For the purpose
of hearing legislative protests, the tribunal was to be
composed of three justices designated by the Supreme
Court and six members of the house of the legislature to
which the contest corresponds, three members to be
designed by the majority party and three by the
minority, to be presided over by the Senior Justice
unless the Chief Justice is also a member in which case
the latter shall preside. The foregoing proposal was
submitted by the Committee on Constitutional
Guarantees to the Convention on September 15, 1934,
with slight modifications consisting in the reduction of
the legislative representation to four members, that is,
two senators to be designated one each from the two
major parties in the Senate and two representatives to
be designated one each from the two major parties in
the House of Representatives, and in awarding
representation to the executive department in the
persons of two representatives to be designated by the
President.
Meanwhile, the Committee on Legislative Power was
also preparing its report. As submitted to the
Convention on September 24, 1934 subsection 5,
section 5, of the proposed Article on the Legislative
Department, reads as follows:
The elections, returns and qualifications of
the members of either house and all cases
contesting the election of any of their
members shall be judged by an Electoral
Commission, constituted, as to each House,
by three members elected by the members of
the party having the largest number of votes
therein, three elected by the members of the
party having the second largest number of
votes, and as to its Chairman, one Justice of
the Supreme Court designated by the Chief
Justice.
The idea of creating a Tribunal of Constitutional
Security with comprehensive jurisdiction as proposed
by the Committee on Constitutional Guarantees which
was probably inspired by the Spanish plan (art. 121,
Constitution of the Spanish Republic of 1931), was soon
abandoned in favor of the proposition of the Committee
on Legislative Power to create a similar body with
reduced powers and with specific and limited
jurisdiction, to be designated as a Electoral Commission.
The Sponsorship Committee modified the proposal of
the Committee on Legislative Power with respect to the
composition of the Electoral Commission and made
further changes in phraseology to suit the project of
adopting a unicameral instead of a bicameral
legislature. The draft as finally submitted to the
Convention on October 26, 1934, reads as follows:
(6) The elections, returns and qualifications
of the Members of the National Assembly and
all cases contesting the election of any of its
Members shall be judged by an Electoral
Commission, composed of three members
elected by the party having the largest
number of votes in the National Assembly,
three elected by the members of the party
having the second largest number of votes,
and three justices of the Supreme Court
designated by the Chief Justice, the
Commission to be presided over by one of
said justices.
During the discussion of the amendment introduced by
Delegates Labrador, Abordo, and others, proposing to
strike out the whole subsection of the foregoing draft
and inserting in lieu thereof the following: "The
National Assembly shall be the soled and exclusive
judge of the elections, returns, and qualifications of the
Members", the following illuminating remarks were
made on the floor of the Convention in its session of
December 4, 1934, as to the scope of the said draft:
xxx xxx xxx
Mr. VENTURA. Mr. President, we have a doubt
here as to the scope of the meaning of the
first four lines, paragraph 6, page 11 of the
draft, reading: "The elections, returns and
qualifications of the Members of the National
Assembly and all cases contesting the
election of any of its Members shall be judged
by an Electoral Commission, . . ." I should like
to ask from the gentleman from Capiz
whether the election and qualification of the
member whose elections is not contested
shall also be judged by the Electoral
Commission.
Mr. ROXAS. If there is no question about the
election of the members, there is nothing to
be judged; that is why the word "judge" is
used to indicate a controversy. If there is no
question about the election of a member,
there is nothing to be submitted to the
Electoral Commission and there is nothing to
be determined.
Mr. VENTURA. But does that carry the idea
also that the Electoral Commission shall
confirm also the election of those whose
election is not contested?
Mr. ROXAS. There is no need of confirmation.
As the gentleman knows, the action of the
House of Representatives confirming the
election of its members is just a matter of the
rules of the assembly. It is not constitutional.
It is not necessary. After a man files his
11
credentials that he has been elected, that is
sufficient, unless his election is contested.
Mr. VENTURA. But I do not believe that that is
sufficient, as we have observed that for
purposes of the auditor, in the matter of
election of a member to a legislative body,
because he will not authorize his pay.
Mr. CINCO. Mr. President, I have a similar qualifications provided by law, they cannot
question as that propounded by the remove him for that reason.
gentleman from Ilocos Norte when I arose a
while ago. However I want to ask more
Mr. LABRADOR. So that the right to remove
questions from the delegate from Capiz. This
shall only be retained by the Electoral
paragraph 6 on page 11 of the draft cites
Commission.
cases contesting the election as separate from
the first part of the sections which refers to
elections, returns and qualifications. Mr. ROXAS. By the assembly for misconduct.

Mr. ROXAS. Well, what is the case with

regards to the municipal president who is
elected? What happens with regards to the
councilors of a municipality? Does anybody
confirm their election? The municipal council
does this: it makes a canvass and proclaims
— in this case the municipal council
proclaims who has been elected, and it ends
there, unless there is a contest. It is the same
case; there is no need on the part of the
Electoral Commission unless there is a
contest. The first clause refers to the case
referred to by the gentleman from Cavite
where one person tries to be elected in place
of another who was declared elected. From
example, in a case when the residence of the
man who has been elected is in question, or
in case the citizenship of the man who has
been elected is in question.
Mr. ROXAS. That is merely for the sake of Mr. LABRADOR. I mean with respect to the
clarity. In fact the cases of contested elections qualifications of the members.
are already included in the phrase "the
elections, returns and qualifications." This
Mr. ROXAS. Yes, by the Electoral Commission.
phrase "and contested elections" was inserted
merely for the sake of clarity.
Mr. LABRADOR. So that under this draft, no
member of the assembly has the right to
Mr. CINCO. Under this paragraph, may not the
question the eligibility of its members?
Electoral Commission, at its own instance,
refuse to confirm the elections of the
members." Mr. ROXAS. Before a member can question the
eligibility, he must go to the Electoral
Commission and make the question before
Mr. ROXAS. I do not think so, unless there is a
the Electoral Commission.
protest.
Mr. LABRADOR. So that the Electoral
Mr. LABRADOR. Mr. President, will the
Commission shall decide whether the election
gentleman yield?
is contested or not contested.

However, if the assembly desires to annul the
power of the commission, it may do so by
certain maneuvers upon its first meeting
when the returns are submitted to the
assembly. The purpose is to give to the
Electoral Commission all the powers exercised
by the assembly referring to the elections,
returns and qualifications of the
members. When there is no contest, there is
nothing to be judged.
Mr. VENTURA. Then it should be eliminated.
THE PRESIDENT. The gentleman may yield, if
he so desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from
Capiz believe that unless this power is
granted to the assembly, the assembly on its
own motion does not have the right to
contest the election and qualification of its
members?
Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be
informed if the Electoral Commission has
power and authority to pass upon the
qualifications of the members of the National
Assembly even though that question has not
been raised.
Mr. ROXAS. I have just said that they have no
power, because they can only judge.

Mr. ROXAS. I have no doubt but that the

Mr. ROXAS. But that is a different matter, I
gentleman is right. If this draft is retained as
think Mr. Delegate.
it is, even if two-thirds of the assembly
believe that a member has not the
In the same session, the first clause of the aforesaid
draft reading "The election, returns and qualifications of
the members of the National Assembly and" was
eliminated by the Sponsorship Committee in response
to an amendment introduced by Delegates Francisco,

12
Ventura, Vinzons, Rafols, Lim, Mumar and others. In
explaining the difference between the original draft and
the draft as amended, Delegate Roxas speaking for the
Sponsorship Committee said:
xxx xxx xxx
Sr. ROXAS. La diferencia, senñ or Presidente,
consiste solamente en obviar la objecion
apuntada por varios Delegados al efecto de
que la primera clausula del draft que dice:
"The elections, returns and qualifications of
the members of the National Assembly"
parece que da a la Comision Electoral la
facultad de determinar tambien la eleccion de
los miembros que no ha sido protestados y
para obviar esa dificultad, creemos que la
enmienda tien razon en ese sentido, si
enmendamos el draft, de tal modo que se lea
como sigue: "All cases contesting the
election", de modo que los jueces de la
Comision Electoral se limitaran solamente a
los casos en que haya habido protesta contra
las actas." Before the amendment of Delegate
Labrador was voted upon the following
interpellation also took place:
El Sr. CONEJERO. Antes de votarse la
enmienda, quisiera
El Sr. PRESIDENTE. ¿Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando
tres miembros a la mayoria, y otros tres a la
minoria y tres a la Corte Suprema, ¿no cree Su
Senñ oria que esto equivale practicamente a
dejar el asunto a los miembros del Tribunal
Supremo?
El Sr. ROXAS. Si y no. Creemos que si el
tribunal o la Commission esta constituido en
esa forma, tanto los miembros de la mayoria
como los de la minoria asi como los
miembros de la Corte Suprema consideraran
la cuestion sobre la base de sus meritos,
sabiendo que el partidismo no es suficiente
para dar el triunfo.
El Sr. CONEJERO. ¿Cree Su Senñ oria que en un
caso como ese, podriamos hacer que tanto los
de la mayoria como los de la minoria
prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el
partidismo no les daria el triunfo.
xxx xxx xxx
The amendment introduced by Delegates Labrador,
Abordo and others seeking to restore the power to
decide contests relating to the election, returns and
qualifications of members of the National Assembly to
the National Assembly itself, was defeated by a vote of
ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz
(C.) sought to amend the draft by reducing the
representation of the minority party and the Supreme
Court in the Electoral Commission to two members
each, so as to accord more representation to the
majority party. The Convention rejected this
amendment by a vote of seventy-six (76) against forty-
six (46), thus maintaining the non-partisan character of
the commission.
As approved on January 31, 1935, the draft was made to
read as follows:
(6) All cases contesting the elections, returns
and qualifications of the Members of the
National Assembly shall be judged by an
Electoral Commission, composed of three
members elected by the party having the
largest number of votes in the National
Assembly, three elected by the members of
the party having the second largest number
of votes, and three justices of the Supreme
Court designated by the Chief Justice, the
Commission to be presided over by one of
said justices.
The Style Committee to which the draft was submitted
revised it as follows:
SEC. 4. There shall be an Electoral
Commission composed of three Justices of
the Supreme Court designated by the Chief
Justice, and of six Members chosen by the
National Assembly, three of whom shall be
nominated by the party having the largest
number of votes, and three by the party
having the second largest number of votes
therein. The senior Justice in the Commission
shall be its chairman. The Electoral
Commission shall be the sole judge of the
election, returns, and qualifications of the
Members of the National Assembly.
When the foregoing draft was submitted for approval on
February 8, 1935, the Style Committee, through
President Recto, to effectuate the original intention of
the Convention, agreed to insert the phrase "All contests
relating to" between the phrase "judge of" and the
words "the elections", which was accordingly accepted
by the Convention.
The transfer of the power of determining the election,
returns and qualifications of the members of the
legislature long lodged in the legislative body, to an
independent, impartial and non-partisan tribunal, is by
no means a mere experiment in the science of
government.
Cushing, in his Law and Practice of Legislative
Assemblies (ninth edition, chapter VI, pages 57, 58),
gives a vivid account of the "scandalously notorious"
canvassing of votes by political parties in the disposition
of contests by the House of Commons in the following
passages which are partly quoted by the petitioner in
his printed memorandum of March 14, 1936:
153. From the time when the commons
established their right to be the exclusive
judges of the elections, returns, and
qualifications of their members, until the year
1770, two modes of proceeding prevailed, in
the determination of controverted elections,
and rights of membership. One of the
13
standing committees appointed at the
commencement of each session, was
denominated the committee of privileges and
elections, whose functions was to hear and
investigate all questions of this description
which might be referred to them, and to
report their proceedings, with their opinion
thereupon, to the house, from time to time.
When an election petition was referred to
this committee they heard the parties and
their witnesses and other evidence, and made
a report of all the evidence, together with
their opinion thereupon, in the form of
resolutions, which were considered and
agreed or disagreed to by the house. The
other mode of proceeding was by a hearing at
the bar of the house itself. When this court
was adopted, the case was heard and decided
by the house, in substantially the same
manner as by a committee. The committee of
privileges and elections although a select
committee. The committee of privileges and
elections although a select committee was
usually what is called an open one; that is to
say, in order to constitute the committee, a
quorum of the members named was required
to be present, but all the members of the
house were at liberty to attend the committee
and vote if they pleased.
154. With the growth of political parties in
parliament questions relating to the right of
membership gradually assumed a political
character; so that for many years previous to
the year 1770, controverted elections had
been tried and determined by the house of
commons, as mere party questions, upon
which the strength of contending factions
might be tested. Thus, for Example, in 1741,
Sir Robert Walpole, after repeated attacks
upon his government, resigned his office in
consequence of an adverse vote upon the
Chippenham election. Mr. Hatsell remarks, of
the trial of election cases, as conducted under
this system, that "Every principle of decency
and justice were notoriously and openly
prostituted, from whence the younger part of
the house were insensibly, but too
successfully, induced to adopt the same
licentious conduct in more serious matters,
and in questions of higher importance to the
public welfare." Mr. George Grenville, a
distinguished member of the house of
commons, undertook to propose a remedy for
the evil, and, on the 7th of March, 1770,
obtained the unanimous leave of the house to
bring in a bill, "to regulate the trial of
controverted elections, or returns of
members to serve in parliament." In his
speech to explain his plan, on the motion for
leave, Mr. Grenville alluded to the existing
practice in the following terms: "Instead of
trusting to the merits of their respective
causes, the principal dependence of both
parties is their private interest among us; and
it is scandalously notorious that we are as
earnestly canvassed to attend in favor of the
opposite sides, as if we were wholly self-
elective, and not bound to act by the
principles of justice, but by the discretionary
impulse of our own inclinations; nay, it is well
known, that in every contested election, many
members of this house, who are ultimately to
judge in a kind of judicial capacity between
the competitors, enlist themselves as parties
in the contention, and take upon themselves
the partial management of the very business,
upon which they should determine with the
strictest impartiality."
155. It was to put an end to the practices thus
described, that Mr. Grenville brought in a bill
which met with the approbation of both
houses, and received the royal assent on the
12th of April, 1770. This was the celebrated
law since known by the name of the Grenville
Act; of which Mr. Hatsell declares, that it "was
one of the nobles works, for the honor of the
house of commons, and the security of the
constitution, that was ever devised by any
minister or statesman." It is probable, that
the magnitude of the evil, or the apparent
success of the remedy, may have led many of
the contemporaries of the measure to the
information of a judgement, which was not
acquiesced in by some of the leading
statesmen of the day, and has not been
entirely confirmed by subsequent experience.
The bill was objected to by Lord North, Mr. De
Grey, afterwards chief justice of the common
pleas, Mr. Ellis, Mr. Dyson, who had been clerk
of the house, and Mr. Charles James Fox,
chiefly on the ground, that the introduction of
the new system was an essential alteration of
the constitution of parliament, and a total
abrogation of one of the most important
rights and jurisdictions of the house of
commons.
As early as 1868, the House of Commons in England
solved the problem of insuring the non-partisan
settlement of the controverted elections of its members
by abdicating its prerogative to two judges of the King's
Bench of the High Court of Justice selected from a rota in
accordance with rules of court made for the purpose.
Having proved successful, the practice has become
imbedded in English jurisprudence (Parliamentary
Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by
Parliamentary Elections and Corrupt Practices Act.
1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal
Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s.
70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5,
c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787).
In the Dominion of Canada, election contests which
were originally heard by the Committee of the House of
Commons, are since 1922 tried in the courts. Likewise,
in the Commonwealth of Australia, election contests
which were originally determined by each house, are
since 1922 tried in the High Court. In Hungary, the
organic law provides that all protests against the
election of members of the Upper House of the Diet are
to be resolved by the Supreme Administrative Court
(Law 22 of 1916, chap. 2, art. 37, par. 6). The
Constitution of Poland of March 17, 1921 (art. 19) and
the Constitution of the Free City of Danzig of May 13,
1922 (art. 10) vest the authority to decide contested
elections to the Diet or National Assembly in the
Supreme Court. For the purpose of deciding legislative
contests, the Constitution of the German Reich of July 1,
1919 (art. 31), the Constitution of the Czechoslovak
Republic of February 29, 1920 (art. 19) and the
Constitution of the Grecian Republic of June 2, 1927
(art. 43), all provide for an Electoral Commission.
The creation of an Electoral Commission whose
membership is recruited both from the legislature and
14
the judiciary is by no means unknown in the United
States. In the presidential elections of 1876 there was a
dispute as to the number of electoral votes received by
each of the two opposing candidates. As the
Constitution made no adequate provision for such a
contingency, Congress passed a law on January 29, 1877
(United States Statutes at Large, vol. 19, chap. 37, pp.
227-229), creating a special Electoral Commission
composed of five members elected by the Senate, five
members elected by the House of Representatives, and
five justices of the Supreme Court, the fifth justice to be
selected by the four designated in the Act. The decision
of the commission was to be binding unless rejected by
the two houses voting separately. Although there is not
much of a moral lesson to be derived from the
experience of America in this regard, judging from the
observations of Justice Field, who was a member of that
body on the part of the Supreme Court (Countryman,
the Supreme Court of the United States and its Appellate
Power under the Constitution [Albany, 1913] —
Relentless Partisanship of Electoral Commission, p.
25 et seq.), the experiment has at least abiding historical
interest.
The members of the Constitutional Convention who
framed our fundamental law were in their majority men
mature in years and experience. To be sure, many of
them were familiar with the history and political
development of other countries of the world. When ,
therefore, they deemed it wise to create an Electoral
Commission as a constitutional organ and invested it
with the exclusive function of passing upon and
determining the election, returns and qualifications of
the members of the National Assembly, they must have
done so not only in the light of their own experience but
also having in view the experience of other enlightened
peoples of the world. The creation of the Electoral
Commission was designed to remedy certain evils of
which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some
members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a
vote of 98 against 58. All that can be said now is that,
upon the approval of the constitutional the creation of
the Electoral Commission is the expression of the
wisdom and "ultimate justice of the people". (Abraham
Lincoln, First Inaugural Address, March 4, 1861.)
From the deliberations of our Constitutional Convention
it is evident that the purpose was to transfer in its
totality all the powers previously exercised by the
legislature in matters pertaining to contested elections
of its members, to an independent and impartial
tribunal. It was not so much the knowledge and
appreciation of contemporary constitutional
precedents, however, as the long-felt need of
determining legislative contests devoid of partisan
considerations which prompted the people, acting
through their delegates to the Convention, to provide for
this body known as the Electoral Commission. With this
end in view, a composite body in which both the
majority and minority parties are equally represented
to off-set partisan influence in its deliberations was
created, and further endowed with judicial temper by
including in its membership three justices of the
Supreme Court.
The Electoral Commission is a constitutional creation,
invested with the necessary authority in the
performance and execution of the limited and specific
function assigned to it by the Constitution. Although it is
not a power in our tripartite scheme of government, it
is, to all intents and purposes, when acting within the
limits of its authority, an independent organ. It is, to be
sure, closer to the legislative department than to any
other. The location of the provision (section 4) creating
the Electoral Commission under Article VI entitled
"Legislative Department" of our Constitution is very
indicative. Its compositions is also significant in that it is
constituted by a majority of members of the legislature.
But it is a body separate from and independent of the
legislature.
The grant of power to the Electoral Commission to judge
all contests relating to the election, returns and
qualifications of members of the National Assembly, is
intended to be as complete and unimpaired as if it had
remained originally in the legislature. The express
lodging of that power in the Electoral Commission is an
implied denial of the exercise of that power by the
National Assembly. And this is as effective a restriction
upon the legislative power as an express prohibition in
the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1;
State vs.Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we
concede the power claimed in behalf of the National
Assembly that said body may regulate the proceedings
of the Electoral Commission and cut off the power of the
commission to lay down the period within which
protests should be filed, the grant of power to the
commission would be ineffective. The Electoral
Commission in such case would be invested with the
power to determine contested cases involving the
election, returns and qualifications of the members of
the National Assembly but subject at all times to the
regulative power of the National Assembly. Not only
would the purpose of the framers of our Constitution of
totally transferring this authority from the legislative
body be frustrated, but a dual authority would be
created with the resultant inevitable clash of powers
from time to time. A sad spectacle would then be
presented of the Electoral Commission retaining the
bare authority of taking cognizance of cases referred to,
but in reality without the necessary means to render
that authority effective whenever and whenever the
National Assembly has chosen to act, a situation worse
than that intended to be remedied by the framers of our
Constitution. The power to regulate on the part of the
National Assembly in procedural matters will inevitably
lead to the ultimate control by the Assembly of the
entire proceedings of the Electoral Commission, and, by
indirection, to the entire abrogation of the
constitutional grant. It is obvious that this result should
not be permitted.
We are not insensible to the impassioned argument or
the learned counsel for the petitioner regarding the
importance and necessity of respecting the dignity and
independence of the national Assembly as a coordinate
department of the government and of according validity
to its acts, to avoid what he characterized would be
practically an unlimited power of the commission in the
admission of protests against members of the National
Assembly. But as we have pointed out hereinabove, the
creation of the Electoral Commission carried with it ex
necesitate rei the power regulative in character to limit
the time with which protests intrusted to its cognizance
should be filed. It is a settled rule of construction that
where a general power is conferred or duty enjoined,
every particular power necessary for the exercise of the
one or the performance of the other is also conferred
(Cooley, Constitutional Limitations, eight ed., vol. I, pp.
138, 139). In the absence of any further constitutional
provision relating to the procedure to be followed in
filing protests before the Electoral Commission,
therefore, the incidental power to promulgate such
15
rules necessary for the proper exercise of its exclusive
power to judge all contests relating to the election,
returns and qualifications of members of the National
Assembly, must be deemed by necessary implication to
have been lodged also in the Electoral Commission.
It is, indeed, possible that, as suggested by counsel for
the petitioner, the Electoral Commission may abuse its
regulative authority by admitting protests beyond any
reasonable time, to the disturbance of the tranquillity
and peace of mind of the members of the National
Assembly. But the possibility of abuse is not argument
against the concession of the power as there is no
power that is not susceptible of abuse. In the second
place, if any mistake has been committed in the creation
of an Electoral Commission and in investing it with
exclusive jurisdiction in all cases relating to the election,
returns, and qualifications of members of the National
Assembly, the remedy is political, not judicial, and must
be sought through the ordinary processes of democracy.
All the possible abuses of the government are not
intended to be corrected by the judiciary. We believe,
however, that the people in creating the Electoral
Commission reposed as much confidence in this body in
the exclusive determination of the specified cases
assigned to it, as they have given to the Supreme Court
in the proper cases entrusted to it for decision. All the
agencies of the government were designed by the
Constitution to achieve specific purposes, and each
constitutional organ working within its own particular
sphere of discretionary action must be deemed to be
animated with the same zeal and honesty in
accomplishing the great ends for which they were
created by the sovereign will. That the actuations of
these constitutional agencies might leave much to be
desired in given instances, is inherent in the perfection
of human institutions. In the third place, from the fact
that the Electoral Commission may not be interfered
with in the exercise of its legitimate power, it does not
follow that its acts, however illegal or unconstitutional,
may not be challenge in appropriate cases over which
the courts may exercise jurisdiction.
But independently of the legal and constitutional
aspects of the present case, there are considerations of
equitable character that should not be overlooked in the
appreciation of the intrinsic merits of the controversy.
The Commonwealth Government was inaugurated on
November 15, 1935, on which date the Constitution,
except as to the provisions mentioned in section 6 of
Article XV thereof, went into effect. The new National
Assembly convened on November 25th of that year, and
the resolution confirming the election of the petitioner,
Jose A. Angara was approved by that body on December
3, 1935. The protest by the herein respondent Pedro
Ynsua against the election of the petitioner was filed on
December 9 of the same year. The pleadings do not
show when the Electoral Commission was formally
organized but it does appear that on December 9, 1935,
the Electoral Commission met for the first time and
approved a resolution fixing said date as the last day for
the filing of election protest. When, therefore, the
National Assembly passed its resolution of December 3,
1935, confirming the election of the petitioner to the
National Assembly, the Electoral Commission had not
yet met; neither does it appear that said body had
actually been organized. As a mater of fact, according to
certified copies of official records on file in the archives
division of the National Assembly attached to the record
of this case upon the petition of the petitioner, the three
justices of the Supreme Court the six members of the
National Assembly constituting the Electoral
Commission were respectively designated only on
December 4 and 6, 1935. If Resolution No. 8 of the
National Assembly confirming non-protested elections
of members of the National Assembly had the effect of
limiting or tolling the time for the presentation of
protests, the result would be that the National Assembly
— on the hypothesis that it still retained the incidental
power of regulation in such cases — had already barred
the presentation of protests before the Electoral
Commission had had time to organize itself and
deliberate on the mode and method to be followed in a
matter entrusted to its exclusive jurisdiction by the
Constitution. This result was not and could not have
been contemplated, and should be avoided.
From another angle, Resolution No. 8 of the National
Assembly confirming the election of members against
whom no protests had been filed at the time of its
passage on December 3, 1935, can not be construed as a
limitation upon the time for the initiation of election
contests. While there might have been good reason for
the legislative practice of confirmation of the election of
members of the legislature at the time when the power
to decide election contests was still lodged in the
legislature, confirmation alone by the legislature cannot
be construed as depriving the Electoral Commission of
the authority incidental to its constitutional power to be
"the sole judge of all contest relating to the election,
returns, and qualifications of the members of the
National Assembly", to fix the time for the filing of said
election protests. Confirmation by the National
Assembly of the returns of its members against whose
election no protests have been filed is, to all legal
purposes, unnecessary. As contended by the Electoral
Commission in its resolution of January 23, 1936,
overruling the motion of the herein petitioner to
dismiss the protest filed by the respondent Pedro Ynsua,
confirmation of the election of any member is not
required by the Constitution before he can discharge his
duties as such member. As a matter of fact, certification
by the proper provincial board of canvassers is
sufficient to entitle a member-elect to a seat in the
national Assembly and to render him eligible to any
office in said body (No. 1, par. 1, Rules of the National
Assembly, adopted December 6, 1935).
Under the practice prevailing both in the English House
of Commons and in the Congress of the United States,
confirmation is neither necessary in order to entitle a
member-elect to take his seat. The return of the proper
election officers is sufficient, and the member-elect
presenting such return begins to enjoy the privileges of
a member from the time that he takes his oath of office
(Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694,
695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is
in order only in cases of contested elections where the
decision is adverse to the claims of the protestant. In
England, the judges' decision or report in controverted
elections is certified to the Speaker of the House of
Commons, and the House, upon being informed of such
certificate or report by the Speaker, is required to enter
the same upon the Journals, and to give such directions
for confirming or altering the return, or for the issue of a
writ for a new election, or for carrying into execution
the determination as circumstances may require (31 &
32 Vict., c. 125, sec. 13). In the United States, it is
believed, the order or decision of the particular house
itself is generally regarded as sufficient, without any
actual alternation or amendment of the return (Cushing,
Law and Practice of Legislative Assemblies, 9th ed., sec.
166).
16
Under the practice prevailing when the Jones Law was
still in force, each house of the Philippine Legislature
fixed the time when protests against the election of any
of its members should be filed. This was expressly
authorized by section 18 of the Jones Law making each
house the sole judge of the election, return and
qualifications of its members, as well as by a law (sec.
478, Act No. 3387) empowering each house to
respectively prescribe by resolution the time and
manner of filing contest in the election of member of
said bodies. As a matter of formality, after the time fixed
by its rules for the filing of protests had already expired,
each house passed a resolution confirming or approving
the returns of such members against whose election no
protests had been filed within the prescribed time. This
was interpreted as cutting off the filing of further
protests against the election of those members not
theretofore contested (Amistad vs. Claravall [Isabela],
Second Philippine Legislature, Record — First Period, p.
89; Urguello vs. Rama [Third District, Cebu], Sixth
Philippine Legislature; Fetalvero vs. Festin [Romblon],
Sixth Philippine Legislature, Record — First Period, pp.
637-640; Kintanar vs. Aldanese [Fourth District, Cebu],
Sixth Philippine Legislature, Record — First Period, pp.
1121, 1122; Aguilar vs. Corpus [Masbate], Eighth
Philippine Legislature, Record — First Period, vol. III,
No. 56, pp. 892, 893). The Constitution has repealed
section 18 of the Jones Law. Act No. 3387, section 478,
must be deemed to have been impliedly abrogated also,
for the reason that with the power to determine all
contest relating to the election, returns and
qualifications of members of the National Assembly, is
inseparably linked the authority to prescribe
regulations for the exercise of that power. There was
thus no law nor constitutional provisions which
authorized the National Assembly to fix, as it is alleged
to have fixed on December 3, 1935, the time for the
filing of contests against the election of its members.
And what the National Assembly could not do directly, it
could not do by indirection through the medium of
confirmation.
Summarizing, we conclude:
(a) That the government established by the
Constitution follows fundamentally the
theory of separation of power into the
legislative, the executive and the judicial.
(b) That the system of checks and balances
and the overlapping of functions and duties
often makes difficult the delimitation of the
powers granted.
(c) That in cases of conflict between the
several departments and among the agencies
thereof, the judiciary, with the Supreme Court
as the final arbiter, is the only constitutional
mechanism devised finally to resolve the
conflict and allocate constitutional
boundaries.
(d) That judicial supremacy is but the power
of judicial review in actual and appropriate
cases and controversies, and is the power and
duty to see that no one branch or agency of
the government transcends the Constitution,
which is the source of all authority.
(e) That the Electoral Commission is an
independent constitutional creation with
specific powers and functions to execute and
perform, closer for purposes of classification
to the legislative than to any of the other two
departments of the governments.
(f ) That the Electoral Commission is the sole
judge of all contests relating to the election,
returns and qualifications of members of the
National Assembly.
(g) That under the organic law prevailing
before the present Constitution went into
effect, each house of the legislature was
respectively the sole judge of the elections,
returns, and qualifications of their elective
members.
(h) That the present Constitution has
transferred all the powers previously
exercised by the legislature with respect to
contests relating to the elections, returns and
qualifications of its members, to the Electoral
Commission.
(i) That such transfer of power from the
legislature to the Electoral Commission was
full, clear and complete, and carried with it ex
necesitate rei the implied power inter alia to
prescribe the rules and regulations as to the
time and manner of filing protests.
( j) That the avowed purpose in creating the
Electoral Commission was to have an
independent constitutional organ pass upon
all contests relating to the election, returns
and qualifications of members of the National
Assembly, devoid of partisan influence or
consideration, which object would be
frustrated if the National Assembly were to
retain the power to prescribe rules and
regulations regarding the manner of
conducting said contests.
(k) That section 4 of article VI of the
Constitution repealed not only section 18 of
the Jones Law making each house of the
Philippine Legislature respectively the sole
judge of the elections, returns and
qualifications of its elective members, but
also section 478 of Act No. 3387 empowering
each house to prescribe by resolution the
time and manner of filing contests against the
election of its members, the time and manner
of notifying the adverse party, and bond or
bonds, to be required, if any, and to fix the
costs and expenses of contest.
(l) That confirmation by the National
Assembly of the election is contested or not,
is not essential before such member-elect
may discharge the duties and enjoy the
privileges of a member of the National
Assembly.
(m) That confirmation by the National
Assembly of the election of any member
against whom no protest had been filed prior
to said confirmation, does not and cannot
deprive the Electoral Commission of its
incidental power to prescribe the time within
which protests against the election of any
17
 member of the National Assembly should be
filed.
We hold, therefore, that the Electoral Commission was
acting within the legitimate exercise of its constitutional
prerogative in assuming to take cognizance of the
protest filed by the respondent Pedro Ynsua against the
election of the herein petitioner Jose A. Angara, and that
the resolution of the National Assembly of December 3,
1935 can not in any manner toll the time for filing
protests against the elections, returns and qualifications
of members of the National Assembly, nor prevent the
filing of a protest within such time as the rules of the
Electoral Commission might prescribe.
In view of the conclusion reached by us relative to the
character of the Electoral Commission as a
constitutional creation and as to the scope and extent of
its authority under the facts of the present controversy,
we deem it unnecessary to determine whether the
Electoral Commission is an inferior tribunal,
corporation, board or person within the purview of
sections 226 and 516 of the Code of Civil Procedure.
The petition for a writ of prohibition against the
Electoral Commission is hereby denied, with costs
against the petitioner. So ordered.
Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ.,
concur.
Separate Opinions
ABAD SANTOS, J., concurring:
I concur in the result and in most of the views so ably
expressed in the preceding opinion. I am, however,
constrained to withhold my assent to certain
conclusions therein advanced.
The power vested in the Electoral Commission by the
Constitution of judging of all contests relating to the
election, returns, and qualifications of the members of
the National Assembly, is judicial in nature.
(Thomas vs. Loney, 134 U.S., 372; 33 Law. ed., 949, 951.)
On the other hand, the power to regulate the time in
which notice of a contested election may be given, is
legislative in character. (M'Elmoyle vs. Cohen, 13 Pet.,
312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S. 496;
50 Law. ed., 572.)
It has been correctly stated that the government
established by the Constitution follows fundamentally
the theory of the separation of powers into legislative,
executive, and judicial. Legislative power is vested in the
National Assembly. (Article VI, sec. 1.) In the absence of
any clear constitutional provision to the contrary, the
power to regulate the time in which notice of a
contested election may be given, must be deemed to be
included in the grant of legislative power to the National
Assembly.
The Constitution of the United States contains a
provision similar to the that found in Article VI, section
4, of the Constitution of the Philippines. Article I, section
5, of the Constitution of the United States provides that
each house of the Congress shall be the judge of the
elections, returns, and qualifications of its own
members. Notwithstanding this provision, the Congress
has assumed the power to regulate the time in which
notice of a contested election may be given. Thus section
201, Title 2, of the United States Code Annotated
prescribes:
Whenever any person intends to contest an
election of any Member of the House of
Representatives of the United States, he shall,
within thirty days after the result of such
election shall have been determined by the
officer or board of canvassers authorized by
law to determine the same, give notice, in
writing, to the Member whose seat he designs
to contest, of his intention to contest the
same, and, in such notice, shall specify
particularly the grounds upon which he relies
in the contest. (R. S., par. 105.)
The Philippine Autonomy Act, otherwise known as the
Jones Law, also contained a provision to the effect that
the Senate and House of Representatives, respectively,
shall be the sole judges of the elections, returns, and
qualifications of their elective members.
Notwithstanding this provision, the Philippine
Legislature passed the Election Law, section 478 of
which reads as follows:
The Senate and the House of Representatives
shall by resolution respectively prescribe the
time and manner of filing contest in the
election of members of said bodies, the time
and manner of notifying the adverse party,
and bond or bonds, to be required, if any, and
shall fix the costs and expenses of contest
which may be paid from their respective
funds.
The purpose sought to be attained by the creation of the
Electoral Commission was not to erect a body that
would be above the law, but to raise legislative elections
contests from the category of political to that of
justiciable questions. The purpose was not to place the
commission beyond the reach of the law, but to insure
the determination of such contests with the due process
of law.
Section 478 of the Election Law was in force at the time
of the adoption of the Constitution, Article XV, section 2,
of which provides that —
All laws of the Philippine Islands shall
continue in force until the inauguration of the
Commonwealth of the Philippines; thereafter,
such laws shall remain operative, unless
inconsistent with this Constitution, until
amended, altered, modified, or repealed by
the National Assembly, and all references in
such laws to the Government or officials of
the Philippine Islands shall be construed, in
so far as applicable, to refer to the
Government and corresponding officials
under this Constitution.
The manifest purpose of this constitutional provision
was to insure the orderly processes of government, and
to prevent any hiatus in its operations after the
inauguration of the Commonwealth of the Philippines. It
was thus provided that all laws of the Philippine Islands
shall remain operative even after the inauguration of the
Commonwealth of the Philippines, unless inconsistent
18
with the Constitution, and that all references in such
laws to the government or officials of the Philippine
Islands shall be construed, in so far as applicable, to
refer to the government and corresponding officials
under the Constitution. It would seem to be consistent
not only with the spirit but the letter of the Constitution
to hold that section 478 of the Election Law remains
operative and should now be construed to refer to the
Electoral Commission, which, in so far as the power to
judge election contests is concerned, corresponds to
either the Senate or the House of Representative under
the former regime. It is important to observe in this
connection that said section 478 of the Election Law
vested the power to regulate the time and manner in
which notice of a contested election may be given, not in
the Philippine Legislature but in the Senate and House
of Representatives singly. In other words, the authority
to prescribe the time and manner of filing contests in
the elections of members of the Philippine Legislature
was by statute lodged separately in the bodies clothed
with power to decide such contests. Construing section
478 of the Election Law to refer to the National
Assembly, as required by Article XV, section 2, of the
Constitution, it seems reasonable to conclude that the
authority to prescribe the time and manner of filing
contests in the election of members of the National
Assembly is vested in the Electoral Commission, which
is now the body clothed with power to decide such
contests.
In the light of what has been said, the resolution of the
National Assembly of December 3, 1935, could not have
the effect of barring the right of the respondent Pedro
Ynsua to contest the election of the petitioner. By the
same token, the Electoral Commission was authorized
by law to adopt its resolution of December 9, 1935,
which fixed the time with in which written contests
must be filed with the commission.
Having been filed within the time fixed by its
resolutions, the Electoral Commission has jurisdiction
to hear and determine the contest filed by the
respondent Pedro Ynsua against the petitioner Jose A.
Angara.
C. JUSTICIABLE AND POLITICAL QUESTIONS
[G.R. No. 133064. September 16, 1999]
JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H.
AFIADO, MARIANO V. BABARAN and
ANDRES R. CABUYADAO, petitioners, vs.
HON. ALEXANDER AGUIRRE, In his
capacity as Executive Secretary; HON.
EPIMACO VELASCO, in his capacity as
Secretary of Local Government, HON.
SALVADOR ENRIQUEZ, in his capacity as
Secretary of Budget, THE COMMISSION ON
AUDIT THE COMMISSION ON ELECTIONS
HON. BENJAMIN G. DY, in his capacity as
Governor of Isabela, THE HONORABLE
SANGGUNIANG PANLALAWIGAN OF
ISABELA, ATTY. BALTAZAR PICIO, in his
capacity as Provincial Administrator, and
MR. ANTONIO CHUA, in his capacity as
Provincial Treasurer, respondents,
GIORGIDI B. AGGABAO, intervenor.
DECISION
PUNO, J.:
This is a petition for a writ of prohibition with
prayer for preliminary injunction assailing the
constitutionality of Republic Act No. 8528 converting
the city of Santiago, Isabela from an independent
component city to a component city.
On May 5, 1994, Republic Act No. 7720 which
converted the municipality of Santiago, Isabela into an
independent component city was signed into law.On
July 4, 1994, the people of Santiago ratified R.A. No.
7720 in a plebiscite.1
On February 14, 1998, Republic Act No. 8528 was
enacted. It amended R.A. No. 7720. Among others, it
changed the status of Santiago from an independent
component city to a component city, viz:
AN ACT AMENDING CERTAIN SECTIONS OF
REPUBLIC ACT NUMBERED 7720 AN ACT CONVERTING
THE MUNICIPALITY OF SANTIAGO INTO AN
INDEPENDENT COMPONENT CITY TO BE KNOWN AS
THE CITY OF SANTIAGO.
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
SECTION 1. Section 2 of Republic Act
No. 7720 is hereby amended by deleting
the words an independent thereon so that
said Section will read as follows:
SEC. 2. The City of Santiago. The
Municipality of Santiago shall be converted
into a component city to be known as the
City of Santiago, hereinafter referred to as
the City, which shall comprise of the
present territory of the Municipality of
Santiago, Isabela. The territorial
jurisdiction of the City shall be within the
present metes and bounds of the
Municipality of Santiago.
Sec. 2. Section 51 of Republic Act No. 7720 is
hereby amended deleting the entire section and in its
stead substitute the following:
SEC. 51. Election of Provincial
Governor, Vice-Governor, Sangguniang
Panlalawigan Members, and any Elective
Provincial Position for the Province of
Isabela.- The voters of the City of Santiago
shall be qualified to vote in the elections of
the Provincial Governor, Vice-Governor,
Sangguniang Panlalawigan members and
other elective provincial positions of the
Province of Isabela, and any such qualified
voter can be a candidate for such provincial
positions and any elective provincial office.
Sec. 3. Repealing Clause.- All existing laws or parts
thereof inconsistent with the provisions of this Act are
hereby repealed or modified accordingly.
Sec. 4. Effectivity.- This Act shall take effect upon
its approval.
Approved.
Petitioners assail the constitutionality of R.A. No.
8528.2 They alleged as ground the lack of provision in
R.A. No. 8528 submitting the law for ratification by the
people of Santiago City in a proper plebiscite. Petitioner
Miranda was the mayor of Santiago at the time of the
19
filing of the petition at bar. Petitioner Afiado is the
President of the Liga ng mga Barangay ng Santiago
City. Petitioners Dirige, Cabuyadao and Babaran are
residents of Santiago City.
In their Comment, respondent provincial officials
of Isabela defended the constitutionality of R.A. No.
8528. They assailed the standing of petitioners to file
the petition at bar. They also contend that the petition
raises a political question over which this Court lacks
jurisdiction.
Another Comment was filed by the Solicitor
General for the respondent public officials. The Solicitor
General also contends that petitioners are not real
parties in interest. More importantly, it is contended
that R.A. No. 8528 merely reclassified Santiago City
from an independent component city to a component
city. It allegedly did not involve any creation, division,
merger, abolition, or substantial alteration of
boundaries of local government units, hence, a
plebiscite of the people of Santiago is unnecessary.
A third Comment similar in tone was submitted
by intervenor Giorgidi B. Aggabao,3 a member of the
provincial board of Isabela.4 He contended that both the
Constitution and the Local Government Code of 1991 do
not require a plebiscite to approve a law that merely
allowed qualified voters of a city to vote in provincial
elections. The rules implementing the Local
Government Code cannot require a plebiscite. He also
urged that petitioners lacked locus standi.
Petitioners filed a Reply to meet the arguments of
the respondents and the intervenor. They defended
their standing. They also stressed the changes that
would visit the city of Santiago as a result of its
reclassification.
We find merit in the petition.
First. The challenge to the locus standi of
petitioners cannot succeed. It is now an ancient rule
that the constitutionality of law can be challenged by
one who will sustain a direct injury as a result of its
enforcement.5 Petitioner Miranda was the mayor of
Santiago City when he filed the present petition in his
own right as mayor and not on behalf of the city, hence,
he did not need the consent of the city council of
Santiago City. It is also indubitable that the change of
status of the city of Santiago from independent
component city to a mere component city will affect his
powers as mayor, as will be shown hereafter. The injury
that he would sustain from the enforcement of R.A. No.
8528 is direct and immediate and not a mere
generalized grievance shared with the people of
Santiago City. Similarly, the standing of the other
petitioners rests on a firm foundation. They are
residents and voters in the city of Santiago. They have
the right to be heard in the conversion of their city thru
a plebiscite to be conducted by the COMELEC. The
denial of this right in R.A. No. 8528 gives them proper
standing to strike the law as unconstitutional.
Second. The plea that this court back off from
assuming jurisdiction over the petition at bar on the
ground that it involves a political question has to be
brushed aside. This plea has long lost its appeal
especially in light of Section 1 of Article VIII of the 1987
Constitution which defines judicial power as including
the duty of the courts of justice to settle actual
controversies involving rights which are legally
demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government. To be
sure, the cut between a political and justiciable issue has
been made by this Court in many cases and need no
longer mystify us. In Taada v. Cuenco,6 we held:
xxx
The term political question connotes what it
means in ordinary parlance, namely, a question of
policy. 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
legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, not
legality, of a particular measure.
In Casibang v. Aquino,7 we defined a justiciable
issue as follows:
A purely justiciable issue implies a given right,
legally demandable and enforceable, an act or omission
violative of such right, and a remedy granted and
sanctioned by law, for said breach of right.
Clearly, the petition at bar presents a justiciable
issue. Petitioners claim that under Section 10, Article X
of the 1987 Constitution they have a right to approve or
disapprove R.A. No. 8528 in a plebiscite before it can be
enforced. It ought to be self-evident that whether or not
petitioners have the said right is a legal not a political
question. For whether or not laws passed by Congress
comply with the requirements of the Constitution pose
questions that this Court alone can decide. The
proposition that this Court is the ultimate arbiter of the
meaning and nuances of the Constitution need not be
the subject of a prolix explanation.
Third. The threshold issue is whether R.A. No.
8528 is unconstitutional for its failure to provide that
the conversion of the city of Santiago from an
independent component city to a component city should
be submitted to its people in a proper plebiscite. We
hold that the Constitution requires a plebiscite.Section
10, Article X of the 1987 Constitution provides:
No province, city, municipality, or barangay may
be created, or divided, merged, abolished, or its
boundary substantially altered except in accordance
with the criteria established in the local government
code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.
This constitutional requirement is reiterated in
Section 10, Chapter 2 of the Local Government Code
(R.A. No. 7160), thus:
Sec. 10. No province, city, municipality, or
barangay may be created, divided, merged, abolished, or
its boundary substantially altered except in accordance
with the criteria established in the local government
code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.
The power to create, divide, merge, abolish or
substantially alter boundaries of local government
units belongs to Congress.8 This power is part of the
larger power to enact laws which the Constitution
vested in Congress.9 The exercise of the power must be
in accord with the mandate of the Constitution. In the
case at bar, the issue is whether the downgrading of
Santiago City from an independent component city to a
mere component city requires the approval of the
people of Santiago City in a plebiscite. The resolution of
the issue depends on whether or not the downgrading
falls within the meaning of creation, division, merger,
abolition or substantial alteration of boundaries of
20
municipalities per Section 10, Article X of the
Constitution. A close analysis of the said constitutional
provision will reveal that the creation, division, merger,
abolition or substantial alteration of boundaries of local
government units involve acommon denominator - - -
material change in the political and economic rights of
the local government units directly affected as well as
the people therein. It is precisely for this reason that the
Constitution requires the approval of the people in the
political units directly affected. It is not difficult to
appreciate the rationale of this constitutional
requirement. The 1987 Constitution, more than any of
our previous Constitutions, gave more reality to the
sovereignty of our people for it was borne out of the
people power in the 1986 EDSA revolution. Its Section
10, Article X addressed the undesirable practice in the
past whereby local government units were created,
abolished, merged or divided on the basis of the
vagaries of politics and not of the welfare of the
people. Thus, the consent of the people of the local
government unit directly affected was required to serve
as a checking mechanism to any exercise of legislative
power creating, dividing, abolishing, merging or altering
the boundaries of local government units. It is one
instance where the people in their sovereign capacity
decide on a matter that affects them - - - direct
democracy of the people as opposed to democracy thru
peoples representatives. This plebiscite requirement is
also in accord with the philosophy of the Constitution
granting more autonomy to local government units.
The changes that will result from the
downgrading of the city of Santiago from an
independent component city to a component city are
many and cannot be characterized as insubstantial. For
one, the independence of the city as a political unit will
be diminished. The city mayor will be placed under the
administrative supervision of the provincial
governor. The resolutions and ordinances of the city
council of Santiago will have to be reviewed by the
Provincial Board of Isabela. Taxes that will be collected
by the city will now have to be shared with the
province. Petitioners pointed out these far reaching
changes on the life of the people of the city of
Santiago, viz:10
Although RESPONDENTS would like to make it
appear that R.A. No. 8528 had merely re-
classified Santiago City from an independent
component city into a component city, the effect when
challenged (sic) the Act were operational would be,
actually, that of conversion. Consequently, there would
be substantial changes in the political culture and
administrative responsibilities of Santiago City, and the
Province of Isabela. Santiago City from an independent
component city will revert to the Province of Isabela,
geographically, politically and administratively. Thus,
the territorial land area of Santiago City will be added to
the land area comprising the province of Isabela. This
will be to the benefit or advantage of the Provincial
Government of Isabela on account of the subsequent
increase of its share from the internal revenue allotment
(IRA) from the National Government (Section 285, R.A.
No. 7160 or the Local Government Code of 1991). The
IRA is based on land area and population of local
government units, provinces included.
The nature or kinds, and magnitude of the taxes
collected by the City Government, and which taxes shall
accrue solely to the City Government, will be redefined
(Section 151, R.A. No. 7160), and may be shared with
the province such as taxes on sand, gravel and other
quarry resources (Section 138, R.A. No. 7160),
professional taxes (Section 139, R.A. No. 7160), or
amusement taxes (Section 140, R.A. No. 7160). The
Provincial Government will allocate operating funds for
the City. Inarguably, there would be a (sic) diminished
funds for the local operations of the City Government
because of reduced shares of the IRA in accordance with
the schedule set forth by Section 285 of the R.A. No.
7160. The City Governments share in the proceeds in
the development and utilization of national wealth shall
be diluted since certain portions shall accrue to the
Provincial Government (Section 292, R.A. No.7160).
The registered voters of Santiago City will vote for
and can be voted as provincial officials (Section 451 and
452 [c], R.A. No. 7160).
The City Mayor will now be under the
administrative supervision of the Provincial Governor
who is tasked by law to ensure that every component
city and municipality within the territorial jurisdiction
of the province acts within the scope of its prescribed
powers and functions (Section 29 and 465 (b) (2) (i),
R.A. No. 7160), and to review (Section 30, R.A. No. 7160)
all executive orders submitted by the former (Section
455 (b) (1) (xii), R.A. No. 7160) and (R)eportorial
requirements with respect to the local governance and
state of affairs of the city (Section 455 (b) (1) (xx), R.A.
No. 7160). Elective city officials will also be effectively
under the control of the Provincial Governor (Section
63, R.A. No. 7160). Such will be the great change in the
state of the political autonomy of what is now Santiago
City where by virtue of R.A. No. 7720, it is the Office of
the President which has supervisory authority over it as
an independent component city (Section 25, R.A. No.
7160; Section 4 (ARTICLE X), 1987 Constitution).
The resolutions and ordinances adopted and
approved by the Sangguniang Panlungsod will be
subject to the review of the Sangguniang Panlalawigan
(Sections 56, 468 (a) (1) (i), 468 (a) (2) (vii), and 469
(c) (4), R.A. No. 7160). Likewise, the decisions in
administrative cases by the former could be appealed
and acted upon by the latter (Section 67, R.A. No. 7160).
It is markworthy that when R.A. No. 7720 upgraded the
status of Santiago City from a municipality to an
independent component city, it required the approval of
its people thru a plebiscite called for the purpose. There
is neither rhyme nor reason why this plebiscite should
not be called to determine the will of the people of
Santiago City when R.A. No. 8528 downgrades the
status of their city. Indeed, there is more reason to
consult the people when a law substantially diminishes
their right. Rule II, Article 6, paragraph (f) (1) of the
Implementing Rules and Regulations of the Local
Government Code is in accord with the Constitution
when it provides that:
(f) Plebiscite - (1) no creation, conversion,
division, merger, abolition, or substantial alteration of
boundaries of LGUS shall take effect unless approved by
a majority of the votes cast in a plebiscite called for the
purpose in the LGU or LGUs affected. The plebiscite
shall be conducted by the Commission on Elections
(COMELEC) within one hundred twenty (120) days
from the effectivity of the law or ordinance prescribing
such action, unless said law or ordinance fixes another
date.
x x x.
The rules cover all conversions, whether upward
or downward in character, so long as they result in a
material change in the local government unit directly
affected, especially a change in the political and
economic rights of its people.
21
 A word on the dissenting opinions of our
esteemed brethren. Mr. Justice Buena justifies R.A. No.
8528 on the ground that Congress has the power
toamend the charter of Santiago City. This power of
amendment, however, is limited by Section 10, Article X
of the Constitution. Quite clearly, when an amendment
of a law involves the creation, merger, division, abolition
or substantial alteration of boundaries of local
government units, a plebiscite in the political units
directly affected is mandatory. He also contends that the
amendment merely caused a transition in the status of
Santiago as a city. Allegedly, it is a transition because no
new city was created nor was a former city dissolved by
R.A. No. 8528. As discussed above, the spirit of Section
10, Article X of the Constitution calls for the people of
the local government unit directly affected to vote in a
plebiscite whenever there is a material change in their
rights and responsibilities. They may call the
downgrading of Santiago to a component city as a mere
transition but they cannot blink away from the fact that
the transition will radically change its physical and
political configuration as well as the rights and
responsibilities of its people.
On the other hand, our esteemed colleague, Mr.
Justice Mendoza, posits the theory that "only if the
classification involves changes in income, population,
and land area of the local government unit is there a
need for such changes to be approved by the
people x x x."
With due respect, such an interpretation runs
against the letter and spirit of section 10, Article X of the
1987 Constitution which, to repeat, states: "No province,
city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially
altered except in accordance with the criteria
established in the Local Government Code and subject
to approval by a majority of the votes cast in a plebiscite
in the political units directly affected." It is clear that the
Constitution imposes two conditions - - - first, the
creation, division, merger, abolition or substantial
alteration of boundary of a local government unit must
meet the criteria fixed by the Local Government Code on
income, population and land area and second, the law
must be approved by the people "by a majority of the
votes cast in a plebiscite in the political units directly
affected."
In accord with the Constitution, sections 7, 8, and
9 of the Local Government Code fixed the said criteria
and they involve requirements on income, population
and land area. These requirements, however, are
imposed to help assure the economic viability of the
local government unit concerned. They were not
imposed to determine the necessity for a plebiscite
of the people. Indeed, the Local Government Code does
not state that there will be no more plebiscite after its
requirements on income, population and land area have
been satisfied. On the contrary, section 10, Chapter 2 of
the Code provides: "No creation, division, merger,
abolition, or substantial alteration of boundaries of local
government units shall take effect unless approved by
a majority of the votes casts in a plebiscite called for the
purpose in the political unit or units directly
affected. Said plebiscite shall be conducted by the
COMELEC within one hundred twenty (120) days from
the date of the effectivity of the law or ordinance
effecting such action, unless said law or ordinance fixes
another date."11Senator Aquilino Pimentel, the
principal author of the Local Government Code of
1991, opines that the plebiscite is absolute and
mandatory.12
It cannot be overstressed that the said two
requirements of the Constitution have different
purposes. The criteria fixed by the Local Government
Code on income, population and land area are designed
to achieve an economic purpose. They are to be based
on verified indicators, hence, section 7, Chapter 2 of the
Local Government Code requires that these "indicators
shall be attested by the Department of Finance, the
National Statistics Office, and the Lands Management
Bureau of the Department of Environment and Natural
Resources." In contrast, the people's plebiscite is
required to achieve a political purpose --- to use the
people's voice as a check against the pernicious political
practice of gerrymandering. There is no better check
against this excess committed by the political
representatives of the people themselves than the
exercise of direct people power. As well-observed by
one commentator, as the creation, division, merger,
abolition, or substantial alteration of boundaries are
"xxx basic to local government, it is
also imperative that these acts be done not only by
Congress but also be approved by the inhabitants of the
locality concerned. xxx By giving the inhabitants a hand
in their approval, the provision will also eliminate the
old practice of gerrymandering and minimize legislative
action designed for the benefit of a few
politicians. Hence, it promotes the autonomy of local
government units."13
The records show that the downgrading of
Santiago City was opposed by certain segments of its
people. In the debates in Congress, it was noted that at
the time R.A. No. 8528 was proposed, Santiago City has
been converted to an independent component city
barely two and a half (2 1/2) years ago and the
conversion was approved by a majority of 14,000
votes. Some legislators expressed surprise for the
sudden move to downgrade the status of Santiago City
as there had been no significant change in its socio-
economic-political status. The only reason given for the
downgrading is to enable the people of the city to aspire
for the leadership of the province. To say the least, the
alleged reason is unconvincing for it is the essence of
an independent component city that its people can no
longer participate or be voted for in the election of
officials of the province. The people of Santiago City
were aware that they gave up that privilege when they
voted to be independent from the province of
Isabela. There was an attempt on the part of the
Committee on Local Government to submit the
downgrading of Santiago City to its people via a
plebiscite. The amendment to this effect was about to be
voted upon when a recess was called. After the recess,
the chairman of the Committee anounced the
withdrawal of the amendment "after a very enlightening
conversation with the elders of the Body." We quote the
debates, viz:14
"BILL ON SECOND READING
H.B. No. 8729 - City of Santiago
"Senator Tatad. Mr. President, I move that we
consider House Bill No. 8729 as reported out
under Committee Report No. 971.
"The President. Is there any objection? [Silence]
there being none, the motion is approved.
"Consideration of House Bill No. 8729 is now in
order. With the permission of the Body, the Secretary
will read only the title of the bill without prejudice to
inserting in the Record the whole text thereof.
"The Acting Secretary [Atty. Raval]. House Bill
No. 8729, entitled
22
 AN ACT AMENDING CERTAIN
SECTIONS OF R.A. NO. 7720 ENTITLED "AN
ACT CONVERTING THE MUNICIPALITY OF
SANTIAGO INTO AN INDEPENDENT
COMPONENT CITY TO BE KNOWN AS THE
CITY OF SANTIAGO
_______________________________________________________
The following is the full text of H.B. No. 8729
Insert
_______________________________________________________
"Senator Tatad. Mr. President, for the sponsorship,
I ask that the distinguished Chairman of the
Committee on Local Government be
recognized.
"The President. Senator Sotto is recognized.
SPONSORSHIP SPEECH OF SENATOR SOTTO
"Mr. President. House Bill No. 8729, which was
introduced in the House by Congressman
Antonio M. Abaya as its principal author, is a
simple measure which merely seeks to
convert the City of Santiago into a component
city of the Province of Isabela.
"The City of Santiago is geographically located
within, and is physically an integral part of
the Province of Isabela. As an independent
component city, however, it is completely
detached and separate from the said province
as a local political unit. To use the language of
the Explanatory Note of the proposed bill, the
City of Santiago is an island in the provincial
milieu.
"The residents of the city no longer participate in
the elections, nor are they qualified to run for
any elective positions in the Province of
Isabela.
"The Province of Isabela, on the other hand, is no
longer vested with the power and authority
of general supervision over the city and its
officials, which power and authority are now
exercised by the Office of the President,
which is very far away from Santiago City.
Being geographically located within the Province of
Isabela, the City of Santiago is affected, one
way or the other, by the happenings in the
said province, and is benefited by its progress
and development. Hence, the proposed bill to
convert the City of Santiago into a component
city of Isabela.
"Mr. President, it is my pleasure, therefore, to
present for consideration of this august Body
Committee Report No. 971 of the Committee
on Local Government , recommending
approval, with our proposed committee
amendment, of House Bill No. 8729.
"Thank you, Mr. President.
"The President. The Majority Leader is recognized.
"Senator Tatad. Mr. President, I moved (sic) that
we close the period of interpellations.
"The President. Is there any objection? [Silence]
There being none, the period of
interpellations is closed.
"Senator Tatad. I move that we now consider the
committee amendments.
"Senator Roco. Mr. President.
"The President. What is the pleasure of Senator
Roco?
"Senator Roco. Mr. President, may I ask for a
reconsideration of the ruling on the motion to
close the period of interpellations just to be
able to ask a few questions?
"Senator Tatad. May I move for a reconsideration
of my motion, Mr. President.
"The President. Is there any objection to the
reconsideration of the closing of the period of
interpellations? [Silence] There being none,
the motion is approved.
"Senator Roco is recognized.
"Senator Roco. Will the distinguished gentleman
yield for some questions?
"Senator Sotto. Willingly, Mr. President.
"Senator Roco. Mr. President, together with the
Chairman of the Committee on Local
Government, we were with the sponsors
when we approved this bill to make
Santiago a City. That was about two and a
half years ago. At that time, I remember it
was the cry of the city that it be
independent. Now we are deleting that
word independent.
"Mr. President, only because I was a co-author
and a co-sponsor, for the Record, I want
some explanation on what happened
between then and now that has made us
decide that the City of Santiago should
cease to be independent and should now
become a component city.
"Senator Sotto. Mr. President, the officials of the
province said during the public hearing that
they are no longer vested with the power and
authority of general supervision over the
city. The power and authority is now being
exercised by the Office of the President and it
is quite far from the City of Santiago.
"In the public hearing, we also gathered that there
is a clamor from some sectors that they want
to participate in the provincial elections.
"Senator Roco. Mr. President, I did not mean to
delay this. I did want it on record, however. I
think there was a majority of 14,000 who
approved the charter, and maybe we owe it to
those who voted for that charter some degree
of respect. But if there has been a change of
political will, there has been a change of
political will, then so be it.
"Thank you, Mr. President.
"Senator Sotto. Mr. President, to be very frank
about it, that was a very important point
raised by Senator Roco, and I will have to
place it on the Record of the Senate that the
reason why we are proposing a committee
amendment is that, originally, there was an
objection on the part of the local officials and
those who oppose it by incorporating a
plebiscite in this bill. That was the
solution. Because there were some sectors in
23
 the City of Santiago who were opposing the
reclassification or reconversion of the city
into a component city.
"Senator Roco. All I wanted to say, Mr. President --
because the two of us had special pictures
(sic) in the city -- is that I thought it should be
put on record that we have supported
originally the proposal to make it an
independent city. But now if it is their
request, then, on the manifestation of the
Chairman, let it be so.
"Thank you.
"Senator Drilon. Mr. President.
"Senator Drilon. Will the gentleman yield for a few
questions, Mr. President?
"Senator Sotto. Yes, Mr. President.
"Senator Drilon. Mr. President, further to the
interpellation of our good friend, the
Senator from Bicol, on the matter of the
opinion of the citizens of Santiago City,
there is a resolution passed by the
Sanggunian on January 30, 1997 opposing
the conversion of Santiago from an
independent city.
"This opposition was placed on records during
the committee hearings. And that is the
reason why, as mentioned by the good
sponsor, one of the amendments is that a
plebiscite be conducted before the law
takes effect.
"The question I would like to raise-- and I would
like to recall the statement of our Minority
Leader -- is that, at this time we should not
be passing it for a particular politician.
"In this particular case, it is obvious that this bill
is being passed in order that the
additional territory be added to the
election of the provincial officials of the
province of Isabela.
"Now, is this for the benefit of any particular
politician, Mr. President.
"Senator Sotto. If it is, I am not aware of it, Mr.
President.
"Senator Alvarez. Mr. President.
"The President. With the permission of the two
gentlemen on the Floor, Senator Alvarez is
recognized.
"Senator Alvarez. As a born inbred citizen of this
city, Mr. President, may I share some
information.
"Mr. President, if we open up the election of the city
to the provincial leadership, it will not be to
the benefit of the provincial leadership,
because the provincial leadership will then
campaign in a bigger territory.
"As a matter of fact, the ones who will benefit from
this are the citizens of Santiago who will now
be enfranchised in the provincial electoral
process, and whose children will have the
opportunity to grow into provincial
leadership. This is one of the prime reasons
why this amendment is being put forward.
"While it is true that there may have been a
resolution by the city council, those who
signed the resolution were not the whole of
the council. This bill was sponsored by the
congressman of that district who represents a
constituency, the voice of the district.
"I think, Mr. President, in considering which interest
is paramount, whose voice must be heard,
and if we have to fathom the interest of the
people, the law which has been crafted here
in accordance with the rules should be given
account, as we do give account to many of the
legislations coming from the House on local
issues.
"Senator Drilon. Mr. President, the reason why I
am raising this question is that, as Senator
Roco said, just two-and-a-half years ago
we passed a bill which indeed
disenfranchized--if we want to use that
phrase-- the citizens of the City of Santiago
in the matter of the provincial
election. Two-and-a-half years after, we
are changing the rule.
"In the original charter, the citizens of the City of
Santiago participated in a plebiscite in
order to approve the conversion of the city
into an independent city. I believe that the
only way to resolve this issue raised by
Senator Roco is again to subject this issue
to another plebiscite as part of the
provision of this proposed bill and as will
be proposed by the Committee Chairman
as an amendment.
"Thank you very much, Mr. President.
"Senator Alvarez. Mr. President, the Constitution
does not require that the change from an
independent to a component city be
subjected to a plebiscite.
Sections 10, 11, 12 of Article X of the 1987
Constitution provides as follows:
Sec. 10. No province, city, municipality, or
barangay may be created, divided, merged,
abolished, or its boundary substantially
altered, except in accordance with the
criteria established in the local government
code and subject to approval by a majority
of the votes cast in a plebiscite in the
political units directly affected.
This change from an independent city into a
component city is none of those
enumerated. So the proposal coming from the
House is in adherence to this constitutional
mandate which does not require a plebiscite.
Senator Sotto. Mr. President, the key word here is
conversion. The word conversion appears in
that provision wherein we must call a
plebiscite. During the public hearing, the
representative of Congressman Abaya was
insisting that this is not a conversion; this is
merely a reclassification. But it is clear in the
bill.
We are amending a bill that converts, and we are
converting it into a component city. That is
how the members of the committee
24
 felt. That is why we have proposed an
amendment to this, and this is to
incorporate a plebiscite in as much as
there is no provision on incorporating a
plebiscite. Because we would like not only
to give the other people of Santiago a
chance or be enfranchised as far as the
leadership of the province is concerned,
but also we will give a chance to those who
are opposing it. To them, this is the best
compromise. Let the people decide,
instead of the political leaders of Isabela
deciding for them.
"Senator Tatad. Mr. President.
"The President. The Majority Leader is recognized.
"Senator Tatad. At this point, Mr. President, I think
we can move to close the period of
interpellations.
"The President. Is there any objection? [Silence]
There being none, the motion is approved.
"Senator Tatad. I move that we now consider the
committee amendments, Mr. President.
"The President. Is there any objection? Silence]
There being none, the motion is approved.
"Senator Sotto. On page 2, after line 13, insert a
new Section 3, as follows:
"SEC. 3. SECTION 49 OF REPUBLIC ACT NO. 7720
IS HEREBY AMENDED BY DELETING THE ENTIRE
SECTION AND IN ITS STEAD SUBSTITUTE THE
FOLLOWING:
"SEC. 49. PLEBISCITE. - THE CONVERSION OF
THE CITY OF SANTIAGO INTO A COMPONENT CITY OF
THE PROVINCE OF ISABELA SHALL TAKE EFFECT
UPON THE RATIFICATION OF THIS ACT BY A MAJORITY
OF THE PEOPLE OF SAID CITY IN A PLEBISCITE WHICH
SHALL BE HELD FOR THE PURPOSE WITHIN SIXTY
(60) DAYS FROM THE APPROVAL OF THIS ACT. THE
COMMISSION ON ELECTIONS SHALL CONDUCT AND
SUPERVISE SUCH PLEBISCITE.
"The President. Is there any objection?
"Senator Enrile. Mr. President.
"The President. Senator Enrile is recognized.
"Senator Enrile. I object to this committee
amendment, Mr. President.
"SUSPENSION OF SESSION
"Senator Tatad. May I ask for a one-minute
suspension of the session.
"The President. The session is suspended for a few
minutes if there is no objection. [There was
none]
"It was 7:54 p.m.
"RESUMPTION OF SESSION
"At 7:57 p.m., the session was resumed.
"The President. The session is resumed.
"Senator Sotto is recognized.
"Senator Sotto. Mr. President, after a very
enlightening conversation with the elders of
the Body, I withdraw my amendment.
"The President. The amendment is withdrawn.
"Senator Maceda. Mr. President.
"The President. Senator Maceda is recognized.
"Senator Maceda. We wish to thank the sponsor
for the withdrawal of the amendment.
"Mr. President, with due respect to the Senator
from Isabela -- I am no great fan of the
Senator from Isabela -- but it so happens
that this is a local bill affecting not only his
province but his own city where he is a
resident and registered voter.
"So, unless the issue is really a matter of life and
death and of national importance, senatorial
courtesy demands that we, as much as
possible, accommodate the request of the
Senator from Isabela as we have done on
matters affecting the district of other
senators. I need not remind them.
"Thank you anyway, Mr. President.
"Senator Alvarez. Mr. President.
"The President. Senator Alvarez is recognized.
"Senator Alvarez. Mr. President, may I express my
deepest appreciation for the statement of the
gentleman from Ilocos and Laguna. Whatever
he may have said, the feeling is not mutual. At
least for now, I have suddenly become his
great fan for the evening.
"May I put on record, Mr. President, that I
campaigned against the cityhood of Santiago
not because I do not want it to be a city but
because it had disenfranchised the young
men of my city from aspiring for the
leadership of the province. The town is the
gem of the province. How could we extricate
the town from the province?
"But I would like to thank the gentleman, Mr.
President, and also the Chairman of the
Committee.
"Senator Tatad. Mr. President.
"The President. The Majority Leader is recognized.
"Senator Tatad. There being no committee
amendments, I move that the period of
committee amendments be closed.
"The President. Shall we amend the title of this bill
by removing the word independent
preceding component city?
"Senator Sotto. No, Mr. President. We are merely
citing the title. The main title of this House
Bill No. 8729 is An Act Amending Certain
Sections of Republic Act 7720.The title is the
title of Republic Act 7720. So, I do not think
that we should amend that anymore.
"The President. What is the pending motion? Will
the gentleman kindly state the motion?
"Senator Tatad. I move that we close the period of
committee amendments.
"The President. Is there any objection? [Silence]
There being none, the motion is approved.
25
 "Senator Tatad. Unless there are any individual
amendments, I move that we close the period
of individual amendments.
"The President. Is there any objection? [Silence]
There being none, the period of individual
amendments is closed.
"APPROVAL OF H.B. NO. 8729 ON SECOND
READING
"Senator Tatad. Mr. President, I move that we vote
on Second Reading on House Bill No. 8729.
"The President. Is there any objection? [Silence]
There being none, we shall now vote on
Second Reading on House Bill No. 8729.
"As many as are in favor of the bill, say aye.
"Several Members. Aye
As many as are against the bill, say nay. [Silence]
"House Bill No. 8729 is approved on Second
Reading."
The debates cannot but raise some quizzical eyebrows
on the real purpose for the downgrading of the city of
Santiago. There is all the reason to listen to the voice of
the people of the city via a plebiscite.
In the case of Tan, et al. vs. COMELEC,15 BP 885
was enacted partitioning the province of Negros
Occidental without consulting its people in a
plebiscite. In his concurring opinion striking down the
law as unconstitutional, Chief Justice Teehankee cited
the illicit political purpose behind its enactment, viz:
"The scenario, as petitioners urgently asserted,
was to have the creation of the new Province a fait
accompli by the time elections are held on February 7,
1986. The transparent purpose is unmistakably so that
the new Governor and other officials shall by then have
been installed in office, ready to function for purposes of
the election for President and Vice-President. Thus, the
petitioners reported after the event: With indecent
haste, the plebiscite was held; Negros del Norte was set
up and proclaimed by President Marcos as in existence;
a new set of government officials headed by Governor
Armando Gustilo was appointed; and, by the time the
elections were held on February 7, 1986, the political
machinery was in place to deliver the solid North to ex-
President Marcos. The rest is history. What happened in
Negros del Norte during the elections - the unashamed
use of naked power and resources - contributed in no
small way to arousing peoples power and steel the
ordinary citizen to perform deeds of courage and
patriotism that makes one proud to be a Filipino today.
"The challenged Act is manifestly void and
unconstitutional. Consequently, all the implementing
acts complained of, viz. the plebiscite, the proclamation
of a new province of Negros del Norte and the
appointment of its officials are equally void. The limited
holding of the plebiscite only in the areas of the
proposed new province (as provided by Section 4 of the
Act) to the exclusion of the voters of the remaining areas
of the integral province of Negros Occidental (namely,
the three cities of Bacolod, Bago and La Carlota and the
Municipalities of Las Castellana, Isabela, Moises Padilla,
Pontevedra, Hinigaran, Himamaylan, Kabankalan,
Murcia, Valladolid, San Enrique, Ilog, Cauayan, Hinoba-
an and Sipalay and Candoni), grossly contravenes and
disregards the mandate of Article XI, section 3 of the
then prevailing 1973 Constitution that no province may
be created or divided or its boundary substantially
altered without the approval of a majority of the votes
in a plebiscite in the unit or units affected. It is plain
that all the cities and municipalities of the province of
Negros Occidental, not merely those of the proposed
new province, comprise the units affected. It follows that
the voters of the whole and entire province of Negros
Occidental have to participate and give their approval in
the plebiscite, because the whole province is affected by
its proposed division and substantial alteration of its
boundary. To limit the plebiscite to only the voters of the
areas to be partitioned and seceded from the province is
as absurd and illogical as allowing only the secessionists
to vote for the secession that they demanded against the
wishes of the majority and to nullify the basic principle
of majority rule.
Mr. Justice Mendoza and Mr. Justice Buena also
cite two instances when allegedly independent
component cities were downgraded into component
cities without need of a plebiscite. They cite the City
of Oroquieta, Misamis Occidental,16 and the City of San
Carlos, Pangasinan17 whose charters were amended to
allow their people to vote and be voted upon in the
election of officials of the province to which their city
belongs without submitting the amendment to a
plebiscite. With due respect, the cities of Oroquieta
and San Carlos are not similarly situated as the city
of Santiago. The said two cities then were not
independent component cities unlike the city of
Santiago. The two cities were chartered but were
not independent component cities for both were not
highly urbanized cities which alone were
considered independent cities at that time. Thus,
when the case of San Carlos City was under
consideration by the Senate, Senator Pimentel
explained:18
"x x x Senator Pimentel. The bill under
consideration, Mr. President, merely empowers the
voters of San Carlos to vote in the elections of provincial
officials. There is no intention whatsoever to
downgrade the status of the City of San Carlos and
there is no showing whatsoever that the enactment of
this bill will, in any way, diminish the powers and
prerogatives already enjoyed by the City of San
Carlos. In fact, the City of San Carlos as of now, is a
component city. It is not a highly urbanized
city.Therefore, this bill merely, as we said earlier, grants
the voters of the city, the power to vote in provincial
elections, without in any way changing the character
of its being a component city. It is for this reason that I
vote in favor of this bill.
It was Senator Pimentel who also sponsored the
bill19 allowing qualified voters of the city of Oroquieta to
vote in provincial elections of the province of Misamis
Occidental. In his sponsorship speech, he explained that
the right to vote being given to the people of Oroquieta
City was consistent with its status as a component
city.20 Indeed, during the debates, former Senator
Neptali Gonzales pointed out the need to remedy the
anomalous situation then obtaining xxx where voters
of one component city can vote in the provincial
election while the voters of another component city
cannot vote simply because their charters so
provide.21 Thus, Congress amended other charters of
component cities prohibiting their people from
voting in provincial elections.
IN VIEW WHEREOF, the petition is
granted. Republic Act No. 8528 is declared
unconstitutional and the writ of prohibition is hereby
issued commanding the respondents to desist from
implementing said law.
26
 SO ORDERED.
SEPARATE OPINION
VITUG, J.:
I share the opinion of the majority of my colleagues that,
for the reasons expressed in the ponencia, a plebicite is
essential in order to render effective the conversion of
the City of Santiago, Isabela, from an independent to a
component city. I would not go to the extent, however, of
declaring Republic Act No. 7720 unconstitutional;
instead, with due respect, I take the view that a
plebiscite can be held conformably with the provisions
of the Local Government Code. I do not see, in this
instance, a serious incompatibility in having Republic
Act No. 7720 stand along with the Local Government
Code.
MENDOZA, J., dissenting:
The issue in this case is whether the conversion of the
City of Santiago in Isabela province from an
independent component city to a component city
constitutes the creation, division, merger, abolition, or
substantial alteration of the boundary of a city within
the contemplation of Art. X, 10 of the Constitution so as
to require the approval of the people in a plebiscite. The
Court, in declaring R.A. No. 8528 unconstitutional for
lack of provision for a plebiscite, does not say that the
reclassification of Santiago City as an ordinary
component city constitutes creation, division, merger,
abolition, or substantial alteration of boundary.
Nonetheless, the Court today holds that because the
reclassification of the city would result in a material
change in the political and economic rights of the local
government units directly affected as well as the people
therein, the approval of the law in a plebiscite is
required.
With all due respect I submit that not every change
however material and far-reaching in the classification
of a local government unit requires popular approval.
Only if the reclassification involves changes in income,
population, and land area of the local government unit
is there a need for such changes to be approved by the
people, for then there would be a creation, division,
merger, abolition, or substantial alteration of the
boundary of a local government unit, as the case may be,
within the meaning of Art. X, 10 of the Constitution.
Thus, the Local Government Code (R.A. No. 7160), in
implementing the constitutional provision in question,
states:
SEC. 7. Creation and Conversion. - As a general rule, the
creation of a local government unit or its conversion
from one level to another level shall be based on
verifiable indicators or viability and projected capacity
to provide services, to wit:
(a) Income. - It must be sufficient, based on acceptable
standards, to provide for all essential government
facilities and services and special functions
commensurate with the size of its population, as
expected of the local government unit concerned;
(b) Population. - It shall be determined as the total
number of inhabitants within the territorial jurisdiction
of the local government unit concerned; and
(c) Land Area. - It must be contiguous, unless it
comprises two (2) or more islands or is separated by a
local government unit independent of the others;
properly identified by metes and bounds with technical
descriptions; and sufficient to provide for such basic
services and facilities to meet the requirements of its
populace.
Compliance with the foregoing indicators shall be
attested to by the Department of Finance (DOF), the
National Statistics Office (NSO), and the Lands
Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR).
SEC. 8. Division and Merger. - Division and merger of
existing local government units shall comply with the
same requirements herein prescribed for their creation:
Provided, however, That such division shall not reduce
the income, population, or land area of the local
government unit or units concerned to less than the
minimum requirements prescribed in this Code:
Provided, further, That the income classification of the
original local government unit or units shall not fall
below its current income classification prior to such
division.
The income classification of local government units
shall be updated within six (6) months from the
effectivity of this Code to reflect the changes in their
financial position resulting from the increased revenues
as provided herein.
SEC. 9. Abolition of Local Government Units. - A local
government unit may be abolished when its income,
population, or land area has been irreversibly reduced
to less than the minimum standards prescribed for its
creation under Book III of this Code, as certified by the
national agencies mentioned in Section 7 hereof to
Congress or to the sanggunian concerned, as the case
may be.
The law or ordinance abolishing a local government unit
shall specify the province, city, municipality, or barangay
with which the local government unit sought to be
abolished will be incorporated or merged.
The conversion from an independent component city to
a component city involves no such changes in income,
population, or land area. There may be changes in the
voting rights of the residents of the city, the supervision
of the citys administration, and the citys share in the
local taxes, as petitioners point out, but such changes do
not amount to the creation, division, merger, abolition,
or substantial alteration of the boundary of a local
government unit so as to require a plebiscite for their
approval. An independent component city and an
ordinary component city are both component cities, as
distinguished from highly urbanized cities.[1] The only
difference between them is that the charters of the
independent component cities prohibit their voters
from voting for provincial elective officials and such
cities are independent of the provinces in which they
are located.[2] Thus, the Local Government Code
provides:
27
SEC. 450. Requisites for Creation. - (a) A municipality or
a cluster of barangays may be converted into a
component city if it has an average annual income, as
certified by the Department of Finance, of at least
Twenty million pesos (P20,000,000.00) for the last two
(2) consecutive years based on 1991 constant prices,
and if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100)
square kilometers, as certified by the Lands
Management Bureau; or
(ii) a population of not less than one hundred fifty
thousand (150,000) inhabitants, as certified by the
National Statistics Office:
Provided, That, the creation thereof shall not reduce the
land area, population, and income of the original unit or
units at the time of said creation to less than the
minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city
shall be properly identified by metes and bounds. The
requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more
islands. The territory need not be contiguous if it
comprises two (2) or more islands.
(c) The average annual income shall include the income
accruing to the general fund, exclusive of special funds,
transfers, and nonrecurring income.
SEC. 451. Cities, Classified. - A city may either be
component or highly urbanized: Provided, however,
That the criteria established in this Code shall not affect
the classification and corporate status of existing cities.
Independent component cities are those component
cities whose charters prohibit their voters from voting
for provincial elective officials. Independent component
cities shall be independent of the province.
SEC. 452. Highly Urbanized Cities. - (a) Cities with a
minimum population of two hundred thousand
(200,000.00) inhabitants, as certified by the National
Statistics Office, and with the latest annual income of at
least Fifty Million Pesos (P50,000,000.00) based on
1991 constant prices, as certified by the city treasurer,
shall be classified as highly urbanized cities.
(b) Cities which do not meet the above requirements
shall be considered component cities of the province in
which they are geographically located. If a component
city is located within the boundaries of two (2) or more
provinces, such city shall be considered a component of
the province of which it used to be a municipality.
(c) Qualified voters of highly urbanized cities shall
remain excluded from voting for elective provincial
officials.
Unless otherwise provided in the Constitution or this
Code, qualified voters of independent component cities
shall be governed by their respective charters, as
amended, on the participation of voters in provincial
elections.
Qualified voters of cities who acquired the right to vote
for elective provincial officials prior to the classification
of said cities as highly urbanized after the ratification of
the Constitution and before the effectivity of this Code,
shall continue to exercise such right.
The Court says that the changes resulting from the
reclassification of Santiago City as an ordinary
component city cannot be considered insubstantial. For
one, it is said, its independence will be diminished
because the city mayor will be placed under the
administrative supervision of the provincial governor.
For another, the resolutions and ordinances of the city
council will have to be approved by the provincial board
of Isabela.
The fact is that whether the City of Santiago is an
independent component city or an ordinary component
city, it is subject to administrative supervision, with the
only difference that, as an independent component city,
it is under the direct supervision of the President of the
Philippines, whereas, as an ordinary component city, it
will be subject to the supervision of the President
through the province.[3] That is hardly a distinction. For
the fact is that under the Constitution, the President of
the Philippines exercises general supervision over all
local governments.[4]
Nor does it matter that ordinances passed by the city
councils of component cities are subject to review (not
approval as the Court says) by the provincial boards for
the purpose of determining whether the ordinances are
within the powers of the city councils to enact.[5] For
that matter, ordinances passed by the city councils of
independent component cities are likewise subject to
review, although by the Office of the President.[6] The
reason for this is to be found in Art. X, 4 of the
Constitution which provides:
The President of the Philippines shall exercise general
supervision over local governments. Provinces with
respect to component cities and municipalities, and
cities and municipalities with respect to component
barangays shall ensure that the acts of their component
units are within the scope of their prescribed powers
and functions.
In any case, these are not important differences which
determine whether the law effecting them should be
approved in a plebiscite. The defining characteristics of
a local government unit are its income, population, and
local area, as 450 and 452 of the LGC provide. These are
referred to in 7 of the LGC and its Implementing Rules
as the verifiable indicators of viability and projected
capacity to provide services. Tested by these standards,
there is no change in the City of Santiago requiring the
approval of the people in a plebiscite.
The majority states: It is markworthy that when R.A. No.
7720 upgraded the status of Santiago City from a
municipality to an independent component city, it
required the approval of its people thru a plebiscite
called for the purpose. There is neither rhyme nor
reason why this plebiscite should not be called to
determine the will of the people of Santiago City when
R.A. No. 8528 downgrades the status of their city. The
conversion of the then Municipality of Santiago in
Isabela Province by R.A. No. 7720 was an act of creation.
It was based on the municipalitys satisfying the
requisites for the creation of a city as provided in the
LGC, to wit:
28
SEC. 450. Requisites for Creation. - (a) A municipality or
a cluster of barangays may be converted into a
component city if it has an average annual income, as
certified by the Department of Finance, of a least
Twenty million pesos (P20,000,000.00) for the last two
(2) consecutive years based on 1991 constant prices,
and if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100)
square kilometers, as certified by the Lands
Management Bureau; or
(ii) a population of not less than one hundred fifty
thousand (150,000) inhabitants, as certified by the
National Statistics Office;
Provided, That, the creation thereof shall not reduce the
land area, population, and income of the original unit or
units at the time of said creation to less than the
minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city
shall be properly identified by metes and bounds. The
requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more
islands. The territory need not be contiguous if it
comprises two (2) or more islands.
(c) The average annual income shall include the income
accruing to the general fund, exclusive of special funds,
transfers, and nonrecurring income.
As thus indicated these requisites are based on the
verifiable indicators of income, population, and land
area and, therefore, the conversion of what was once a
municipality into a city needed approval in a plebiscite.
But the conversion of Santiago City from an
independent component city into a component city
involves no more than a change in the right of the
people (i.e., the registered voters of the city) to vote for
provincial elective officials.
If an analogy is needed, it is to the reversion of a
component city whether independent or ordinary to the
status of a municipality. For then the city is actually
abolished and abolition, as stated in the Art. X, 10 of the
Constitution, must be approved by the majority of the In some ways it is better than direct government given
votes cast in a plebiscite. Stated otherwise, when a the complexity of modern society, let alone the volatility
municipality is converted into a city, a city is created, of voters and their susceptability to manipulation. In
and when the city is reverted into a municipality, the this age of mass communication there is less reason to
city is abolished. Both acts of creation and abolition distrust the judgment of the peoples representatives in
require the approval of the people in a plebiscite called Congress on matters such as this and, therefore, no
for the purpose. But when an independent component reason to require the people to manifest their sovereign
city is converted into a component city, it is not created will, except where this is expressly required by the
into another form, it is not divided, it is not merged with Constitution.
another unit of local government, it is not abolished,
much less is its boundary substantially altered.
For the foregoing reasons, I vote to dismiss the petition
in this case.
Indeed, this is not the first time that an independent
component city is converted into a component city
D. REQUISITES OF JUDICIAL REVIEW
without a plebiscite. The City of Oroquieta, created as an
independent component city in 1969 by R.A. No. 5518,
was converted into a component city in 1989 by R.A. No. 1. ACTUAL CASE OR CONTROVERSY
6726, while the City of San Carlos, created as an
independent component city in 1965 by R.A. No. 4487,
G.R. No. L-5279 October 31, 1955
was converted into a component city by R.A. No. 6843 in
1990. In both cases, the conversion was made without
submitting the matter to a plebiscite. PHILIPPINE ASSOCIATION OF COLLEGES AND
UNIVERSITIES, ETC., petitioner,
vs.
There is, therefore, no reason for requiring that the
SECRETARY OF EDUCATION and the BOARD OF
reclassification of Santiago City as a component city
TEXTBOOKS, respondents.
must be approved by the majority of the votes cast in a
plebiscite and for holding that, because R.A. No. 8528
contains no provision for such plebiscite, it is Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego
unconstitutional. and Enrique M. Fernando for petitioner.
Office of the Solicitor General Pompeyo Diaz and
Assistant Solicitor General Francisco Carreon for
It is easy to sympathize with calls for plebiscites as an
respondents.
exercise of direct democracy by the people. But,
although the Constitution declares that Sovereignty
resides in the people and all government authority BENGZON, J.:
emanates from them, it also provides that we are a
republican State.[7] It is thus a representative form of
The petitioning colleges and universities request that
government that we have. With few exceptions, we have
Act No. 2706 as amended by Act No. 3075 and
vested the legislative power in the Congress of the
Commonwealth Act No. 180 be declared
Philippines.[8] This means that when an act of the
unconstitutional, because: A. They deprive owners of
peoples representatives assembled in Congress is duly
schools and colleges as well as teachers and parents of
passed and approved by the President in the manner
liberty and property without due process of law; B.
prescribed in the Constitution, the act becomes a law[9]
They deprive parents of their natural rights and duty to
without the need of approval or ratification by the
rear their children for civic efficiency; and C. Their
people in order to be effective.[10]
provisions conferring on the Secretary of Education
unlimited power and discretion to prescribe rules and
This is the theory of representative government. Such a standards constitute an unlawful delegation of
government is no less democratic because it is indirect. legislative power.
29
A printed memorandum explaining their position in
extenso is attached to the record.
The Government's legal representative submitted a
mimeographed memorandum contending that, (1) the
matter constitutes no justiciable controversy exhibiting
unavoidable necessity of deciding the constitutional
questions; (2) petitioners are in estoppel to challenge
the validity of the said acts; and (3) the Acts are
constitutionally valid.
Petitioners submitted a lengthy reply to the above
arguments.
Act No. 2706 approved in 1917 is entitled, "An Act
making the inspection and recognition of private
schools and colleges obligatory for the Secretary of
Public Instruction." Under its provisions, the
Department of Education has, for the past 37 years,
supervised and regulated all private schools in this
country apparently without audible protest, nay, with
the general acquiescence of the general public and the
parties concerned.
It should be understandable, then, that this Court
should be doubly reluctant to consider petitioner's
demand for avoidance of the law aforesaid, specially
where, as respondents assert, petitioners suffered no
wrong—nor allege any—from the enforcement of the
criticized statute.
It must be evident to any one that the power
to declare a legislative enactment void is one
which the judge, conscious of the fallability of
the human judgment, will shrink from
exercising in any case where he can
conscientiously and with due regard to duty
and official oath decline the responsibility.
(Cooley Constitutional Limitations, 8th Ed.,
Vol. I, p. 332.)
When a law has been long treated as
constitutional and important rights have
become dependent thereon, the Court may
refuse to consider an attack on its validity. (C.
J. S. 16, p. 204.)
As a general rule, the constitutionality of a
statute will be passed on only if, and to the
extent that, it is directly and necessarily
involved in a justiciable controversy and is
essential to the protection of the rights of the
parties concerned. (16 C. J. S., p. 207.)
In support of their first proposition petitioners contend
that the right of a citizen to own and operate a school is
guaranteed by the Constitution, and any law requiring
previous governmental approval or permit before such
person could exercise said right, amounts to censorship
of previous restraint, a practice abhorent to our system
of law and government. Petitioners obviously refer to
section 3 of Act No. 2706 as amended which provides
that before a private school may be opened to the public
it must first obtain a permit from the Secretary of
Education. The Solicitor General on the other hand
points out that none of the petitioners has cause to
present this issue, because all of them have permits to
operate and are actually operating by virtue of their
permits.1 And they do not assert that the respondent
Secretary of Education has threatened to revoke their
permits. They have suffered no wrong under the terms
of law—and, naturally need no relief in the form they
now seek to obtain.
It is an established principle that to entitle a
private individual immediately in danger of
sustaining a direct injury as the result of that
action and it is not sufficient that he has
merely a general to invoke the judicial power
to determine the validity of executive or
legislative action he must show that he has
sustained or is interest common to all
members of the public. (Ex parte Levitt, 302
U. S. 633 82 L. Ed. 493.)
Courts will not pass upon the
constitutionality of a law upon the complaint
of one who fails to show that he is injured by
its operation. (Tyler vs. Judges, 179 U. S. 405;
Hendrick vs. Maryland, 235 U. S. 610;
Coffman vs.Breeze Corp., 323 U. S. 316-325.)
The power of courts to declare a law
unconstitutional arises only when the
interests of litigant require the use of that
judicial authority for their protection against
actual interference, a hypothetical threat
being insufficient. (United Public
Works vs. Mitchell, 330 U .S. 75; 91 L. Ed.
754.)
Bona fide suit.—Judicial power is limited to
the decision of actual cases and
controversies. The authority to pass on the
validity of statutes is incidental to the
decision of such cases where conflicting
claims under the Constitution and under a
legislative act assailed as contrary to the
Constitution are raised. It is legitimate only in
the last resort, and as necessity in the
determination of real, earnest, and vital
controversy between litigants. (Tanñ ada and
Fernando, Constitution of the Philippines, p.
1138.)
Mere apprehension that the Secretary of Education
might under the law withdraw the permit of one of
petitioners does not constitute a justiciable controversy.
(Cf. Com. ex rel Watkins vs. Winchester Waterworks (Ky.)
197 S. W. 2d. 771.)
And action, like this, is brought for a positive purpose,
nay, to obtain actual and positive relief.
(Salonga vs. Warner Barnes, L-2245, January, 1951.)
Courts do not sit to adjudicate mere academic questions
to satisfy scholarly interest therein, however
intellectually solid the problem may be. This is specially
true where the issues "reach constitutional dimensions,
for then there comes into play regard for the court's
duty to avoid decision of constitutional issues unless
avoidance becomes evasion." (Rice vs. Sioux City, U. S.
Sup. Ct. Adv. Rep., May 23, 1995, Law Ed., Vol. 99, p.
511.)
The above notwithstanding, in view of the several
decisions of the United States Supreme Court quoted by
petitioners, apparently outlawing censorship of the kind
objected to by them, we have decided to look into the
matter, lest they may allege we refuse to act even in the
face of clear violation of fundamental personal rights of
liberty and property.
30
Petitioners complain that before opening a school the
owner must secure a permit from the Secretary of
Education. Such requirement was not originally
included in Act No. 2706. It was introduced by
Commonwealth Act No. 180 approved in 1936. Why?
In March 1924 the Philippine Legislature approved Act
No. 3162 creating a Board of Educational Survey to
make a study and survey of education in the Philippines
and of all educational institutions, facilities and agencies
thereof. A Board chairmaned by Dr. Paul Munroe,
Columbia University, assisted by a staff of carefully
selected technical members performed the task, made a
five-month thorough and impartial examination of the
local educational system, and submitted a report with
recommendations, printed as a book of 671 pages. The
following paragraphs are taken from such report:
PRIVATE-ADVENTURE SCHOOLS
There is no law or regulation in the
Philippine Islands today to prevent a person,
however disqualified by ignorance, greed, or
even immoral character, from opening a
school to teach the young. It it true that in
order to post over the door "Recognized by
the Government," a private adventure school
must first be inspected by the proper
Government official, but a refusal to grant
such recognition does not by any means
result in such a school ceasing to exist. As a
matter of fact, there are more such
unrecognized private schools than of the
recognized variety. How many, no one knows,
as the Division of Private Schools keeps
records only of the recognized type.
Conclusion.—An unprejudiced consideration
of the fact presented under the caption
Private Adventure Schools leads but to one
conclusion, viz.: the great majority of them
from primary grade to university are money-
making devices for the profit of those who
organize and administer them. The people
whose children and youth attend them are
not getting what they pay for. It is obvious
that the system constitutes a great evil. That
it should be permitted to exist with almost no
supervision is indefensible. The suggestion
has been made with the reference to the
private institutions of university grade that
some board of control be organized under
legislative control to supervise their
administration. The Commission believes
that the recommendations it offers at the end
of this chapter are more likely to bring about
the needed reforms.
Recommendations.—The Commission
recommends that legislation be enacted to
prohibit the opening of any school by an
individual or organization without the
permission of the Secretary of Public
Instruction. That before granting such
permission the Secretary assure himself that
such school measures up to proper standards
in the following respects, and that the
continued existence of the school be
dependent upon its continuing to conform to
these conditions:
(1) The location and construction of the
buildings, the lighting and ventilation of the
rooms, the nature of the lavatories, closets,
water supply, school furniture and apparatus,
and methods of cleaning shall be such as to
insure hygienic conditions for both pupils
and teachers.
(2) The library and laboratory facilities shall
be adequate to the needs of instruction in the
subjects taught.
(3) The classes shall not show an excessive
number of pupils per teacher. The
Commission recommends 40 as a maximum.
(4) The teachers shall meet qualifications
equal to those of teachers in the public
schools of the same grade.
xxx xxx xxx
In view of these findings and recommendations, can
there be any doubt that the Government in the exercise
of its police power to correct "a great evil" could validly
establish the "previous permit" system objected to by
petitioners? This is what differentiates our law from the
other statutes declared invalid in other jurisdictions.
And if any doubt still exists, recourse may now be had to
the provision of our Constitution that "All educational
institutions shall be under the supervision and subject
to regulation by the State." (Art. XIV, sec. 5.) The power
to regulate establishments or business occupations
implies the power to require a permit or license. (53 C. J.
S. 4.)
What goes for the "previous permit" naturally goes for
the power to revoke such permit on account of violation
of rules or regulations of the Department.
II. This brings us to the petitioners' third proposition
that the questioned statutes "conferring on the
Secretary of Education unlimited power and discretion
to prescribe rules and standards constitute an unlawful
delegation of legislative power."
This attack is specifically aimed at section 1 of Act No.
2706 which, as amended, provides:
It shall be the duty of the Secretary of Public
Instruction to maintain a general standard of
efficiency in all private schools and colleges
of the Philippines so that the same shall
furnish adequate instruction to the public, in
accordance with the class and grade of
instruction given in them, and for this
purpose said Secretary or his duly authorized
representative shall have authority to advise,
inspect, and regulate said schools and
colleges in order to determine the efficiency
of instruction given in the same,
"Nowhere in this Act" petitioners argue "can one find
any description, either general or specific, of what
constitutes a 'general standard of efficiency.' Nowhere in
this Act is there any indication of any basis or condition
to ascertain what is 'adequate instruction to the public.'
Nowhere in this Act is there any statement of
conditions, acts, or factors, which the Secretary of
31
Education must take into account to determine the
'efficiency of instruction.'"
The attack on this score is also extended to section 6
which provides:
The Department of Education shall from time
to time prepare and publish in pamphlet form
the minimum standards required of primary,
intermediate, and high schools, and colleges
granting the degrees of Bachelor of Arts,
Bachelor of Science, or any other academic
degree. It shall also from time to time prepare
and publish in pamphlet form the minimum
standards required of law, medical, dental,
pharmaceutical, engineering, agricultural and
other medical or vocational schools or
colleges giving instruction of a technical,
vocational or professional character.
Petitioners reason out, "this section leaves everything to
the uncontrolled discretion of the Secretary of
Education or his department. The Secretary of
Education is given the power to fix the standard. In plain
language, the statute turns over to the Secretary of
Education the exclusive authority of the legislature to
formulate standard. . . .."
It is quite clear the two sections empower and require
the Secretary of Education to prescribe rules fixing
minimum standards of adequate and efficient
instruction to be observed by all such private schools
and colleges as may be permitted to operate. The
petitioners contend that as the legislature has not fixed
the standards, "the provision is extremely vague,
indefinite and uncertain"—and for that reason
constitutionality objectionable. The best answer is that
despite such alleged vagueness the Secretary of
Education has fixed standards to ensure adequate and
efficient instruction, as shown by the memoranda fixing
or revising curricula, the school calendars, entrance and
final examinations, admission and accreditation of
students etc.; and the system of private education has, in
general, been satisfactorily in operation for 37 years.
Which only shows that the Legislature did and could,
validly rely upon the educational experience and
training of those in charge of the Department of
Education to ascertain and formulate minimum
requirements of adequate instruction as the basis of
government recognition of any private school.
At any rate, petitioners do not show how these
standards have injured any of them or interfered with
their operation. Wherefore, no reason exists for them to
assail the validity of the power nor the exercise of the
power by the Secretary of Education.
True, the petitioners assert that, the Secretary has
issued rules and regulations "whimsical and capricious"
and that such discretionary power has produced
arrogant inspectors who "bully heads and teachers of
private schools." Nevertheless, their remedy is to
challenge those regulations specifically, and/or to ring
those inspectors to book, in proper administrative or
judicial proceedings—not to invalidate the law. For it
needs no argument, to show that abuse by the officials
entrusted with the execution of a statute does not per
se demonstrate the unconstitutionality of such statute.
Anyway, we find the defendants' position to be
sufficiently sustained by the decision in Alegra vs.
Collector of Customs, 53 Phil., 394 upon holding the
statute that authorized the Director of Agriculture
to "designate standards for the commercial grades of
abaca, maguey and sisal" against vigorous attacks on the
ground of invalid delegation of legislative power.
Indeed "adequate and efficient instruction" should be
considered sufficient, in the same way as "public
welfare" "necessary in the interest of law and order"
"public interest" and "justice and equity and substantial
merits of the case" have been held sufficient as
legislative standards justifying delegation of authority
to regulate. (See Tanñ ada and Fernando, Constitution of
the Philippines, p. 793, citing Philippine cases.)
On this phase of the litigation we conclude that there
has been no undue delegation of legislative power.
In this connection, and to support their position that the
law and the Secretary of Education have transcended
the governmental power of supervision and regulation,
the petitioners appended a list of circulars and
memoranda issued by the said Department. However
they failed to indicate which of such official documents
was constitutionally objectionable for being
"capricious," or pain "nuisance"; and it is one of our
decisional practices that unless a constitutional point is
specifically raised, insisted upon and adequately argued,
the court will not consider it. (Santiago vs. Far Eastern,
73 Phil., 408.)
We are told that such list will give an idea of how the
statute has placed in the hands of the Secretary of
Education complete control of the various activities of
private schools, and why the statute should be struck
down as unconstitutional. It is clear in our opinion that
the statute does not in express terms give the
Secretary completecontrol. It gives him powers to
inspect private schools, to regulate their activities, to
give them official permits to operate under certain
conditions, and to revoke such permits for cause. This
does not amount to complete control. If any of such
Department circulars or memoranda issued by the
Secretary go beyond the bounds of regulation and seeks
to establish complete control, it would surely be invalid.
Conceivably some of them are of this nature, but besides
not having before us the text of such circulars, the
petitioners have omitted to specify. In any event with
the recent approval of Republic Act No. 1124 creating
the National Board of Education, opportunity for
administrative correction of the supposed anomalies or
encroachments is amply afforded herein petitioners. A
more expeditious and perhaps more technically
competent forum exists, wherein to discuss the
necessity, convenience or relevancy of the measures
criticized by them. (See also Republic Act No. 176.)
If however the statutes in question actually give the
Secretary control over private schools, the question
arises whether the power of supervision and regulation
granted to the State by section 5 Article XIV was meant
to include control of private educational institutions. It
is enough to point out that local educators and writers
think the Constitution provides for control of Education
by the State. (See Tolentino, Government of the
Philippine Constitution, Vol. II, p. 615; Benitez,
Philippine Social Life and Progress, p. 335.)
The Constitution (it) "provides for state control of all
educational institutions" even as it enumerates certain
32
fundamental objectives of all education to wit, the
development of moral character, personal discipline,
civic conscience and vocational efficiency, and
instruction in the duties of citizenship. (Malcolm &
Laurel, Philippine Constitutional Law, 1936.)
The Solicitor General cities many authorities to show
that the power to regulate means power to control, and
quotes from the proceedings of the Constitutional
Convention to prove that State control of private
education was intended by the organic law. It is
significant to note that the Constitution grants power to
supervise and to regulate. Which may mean greater
power than mere regulation.
III. Another grievance of petitioners—probably the most
significant—is the assessment of 1 per cent levied on
gross receipts of all private schools for additional
Government expenses in connection with their
supervision and regulation. The statute is section 11-A
of Act No. 2706 as amended by Republic Act No. 74
which reads as follows:
SEC. 11-A. The total annual expense of the
Office of Private Education shall be met by
the regular amount appropriated in the
annual Appropriation Act: Provided,
however, That for additional expenses in the
supervision and regulation of private schools,
colleges and universities and in the purchase
of textbook to be sold to student of said
schools, colleges and universities and
President of the Philippines may authorize
the Secretary of Instruction to levy an
equitable assessment from each private
educational institution equivalent to one
percent of the total amount accruing from
tuition and other fees: . . . and non-payment
of the assessment herein provided by any
private school, college or university shall be
sufficient cause for the cancellation by the
Secretary of Instruction of the permit for
recognition granted to it.
Petitioners maintain that this is a tax on the exercise of
a constitutional right—the right to open a school, the
liberty to teach etc. They claim this is unconstitutional,
in the same way that taxes on the privilege of selling
religious literature or of publishing a newspaper—both
constitutional privileges—have been held, in the United
States, to be invalid as taxes on the exercise of a
constitutional right.
The Solicitor General on the other hand argues that
insofar as petitioners' action attempts to restrain the
further collection of the assessment, courts have no
jurisdiction to restrain the collection of taxes by
injunction, and in so far as they seek to recover fees
already paid the suit, it is one against the State without
its consent. Anyway he concludes, the action involving
"the legality of any tax impost or assessment" falls
within the original jurisdiction of Courts of First
Instance.
There are good grounds in support of Government's
position. If this levy of 1 per cent is truly a mere fee—
and not a tax—to finance the cost of the Department's
duty and power to regulate and supervise private
schools, the exaction may be upheld; but such point
involves investigation and examination of relevant data,
which should best be carried out in the lower courts. If
on the other hand it is a tax, petitioners' issue would
still be within the original jurisdiction of the Courts of
First Instance.
The last grievance of petitioners relates to the validity of
Republic Act No. 139 which in its section 1 provides:
The textbooks to be used in the private
schools recognized or authorized by the
government shall be submitted to the Board
(Board of Textbooks) which shall have the
power to prohibit the use of any of said
textbooks which it may find to be against the
law or to offend the dignity and honor of the
government and people of the Philippines, or
which it may find to be against the general
policies of the government, or which it may
deem pedagogically unsuitable.
This power of the Board, petitioners aver, is censorship
in "its baldest form". They cite two U. S. cases (Miss. and
Minnesota) outlawing statutes that impose previous
restraints upon publication of newspapers, or curtail
the right of individuals to disseminate teachings critical
of government institutions or policies.
Herein lies another important issue submitted in the
cause. The question is really whether the law may be
enacted in the exercise of the State's constitutional
power (Art. XIV, sec. 5) to supervise and regulate private
schools. If that power amounts to control of private
schools, as some think it is, maybe the law is valid. In
this connection we do not share the belief that section 5
has added new power to what the State inherently
possesses by virtue of the police power. An express
power is necessarily more extensive than a mere
implied power. For instance, if there is conflict between
an express individual right and the express power to
control private education it cannot off-hand be said that
the latter must yield to the former—conflict of two
express powers. But if the power to control education
ismerely implied from the police power, it is feasible to
uphold the express individual right, as was probably the
situation in the two decisions brought to our attention,
of Mississippi and Minnesota, states where
constitutional control of private schools is not expressly
produced.
However, as herein previously noted, no justiciable
controversy has been presented to us. We are not
informed that the Board on Textbooks has prohibited
this or that text, or that the petitioners refused or intend
to refuse to submit some textbooks, and are in danger of
losing substantial privileges or rights for so refusing.
The average lawyer who reads the above quoted section
of Republic Act 139 will fail to perceive anything
objectionable. Why should not the State prohibit the use
of textbooks that are illegal, or offensive to the Filipinos
or adverse to governmental policies or educationally
improper? What's the power of regulation and
supervision for? But those trained to the investigation of
constitutional issues are likely to apprehend the danger
to civil liberties, of possible educational dictatorship or
thought control, as petitioners' counsel foresee with
obvious alarm. Much depends, however, upon the
execution and implementation of the statute. Not that
constitutionality depends necessarily upon the law's
effects. But if the Board on Textbooks in its actuations
strictly adheres to the letter of the section and wisely
steers a middle course between the Scylla of
33
"dictatorship" and the Charybdis of "thought control", MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY,
no cause for complaint will arise and no occasion for THE MUNICIPAL TREASURER, AND SANGGUNIANG
judicial review will develop. Anyway, and again, BAYAN OF MAKATI, respondents.
petitioners now have a more expeditious remedy thru
an administrative appeal to the National Board of
G.R. No. 118627 March 7, 1995
Education created by Republic Act 1124.

JOHN R. OSMEÑA, petitioner,

Of course it is necessary to assure herein petitioners,
vs.
that when and if, the dangers they apprehend
THE COMMISSION ON ELECTIONS, THE
materialize and judicial intervention is suitably invoked,
MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY,
after all administrative remedies are exhausted, the
MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN
courts will not shrink from their duty to delimit
OF MAKATI, respondents.
constitutional boundaries and protect individual
liberties.

IV. For all the foregoing considerations, reserving to the

petitioners the right to institute in the proper court, and PUNO, J.:
at the proper time, such actions as may call for decision
of the issue herein presented by them, this petition for
At bench are two (2) petitions assailing certain
prohibition will be denied. So ordered.
provisions of Republic Act No. 7854 as unconstitutional.
R.A. No. 7854 as unconstitutional. R.A. No. 7854 is
Paras, C. J., Padilla, Montemayor, Reyes, A., and Jugo, entitled, "An Act Converting the Municipality of Makati
JJ., concur. Into a Highly Urbanized City to be known as the City of
Makati." 1

G.R. No. 118577 involves a petition for prohibition and

declaratory relief. It was filed by petitioners Juanito
Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo
Santos, Frankie Cruz, Ricardo Pascual, Teresita Abang,
Valentina Pitalvero, Rufino Caldoza, Florante Alba, and
Perfecto Alba. Of the petitioners, only Mariano, Jr., is a
resident of Makati. The others are residents of Ibayo
Ususan, Taguig, Metro Manila. Suing as taxpayers, they
assail as unconstitutional sections 2, 51, and 52 of R.A.
No. 7854 on the following grounds:

1. Section 2 of R.A. No. 7854 did

not properly identify the land area
or territorial jurisdiction of Makati
1. ACTUAL CASE OR CONTROVERSY by metes and bounds, with
technical descriptions, in violation
of Section 10, Article X of the
G.R. No. 118577 March 7, 1995
Constitution, in relation to Sections
7 and 450 of the Local Government
JUANITO MARIANO, JR. et al., petitioners, Code;
vs.
THE COMMISSION ON ELECTIONS, THE

34
2. Section 51 of R.A. No. 7854 in accord The foregoing provision shall
attempts to alter or restart the with Section be without prejudice to the
"three consecutive term" limit for 5 (3), Article resolution by the appropriate
local elective officials, in violation VI of the agency or forum of existing
of Section 8, Article X and Section Constitution boundary disputes or cases
7, Article VI of the Constitution. for as of the involving questions of territorial
latest survey jurisdiction between the City of
(1990 Makati and the adjoining local
3. Section 52 of R.A. No. 7854 is
census), the government units. (Emphasis
unconstitutional for:
population of supplied)
Makati stands
(a) it at only
In G.R. No. 118577, petitioners claim that this
increased the 450,000.
delineation violates sections 7 and 450 of the Local
legislative
Government Code which require that the area of a local
district of
G.R. No. 118627 was filed by the petitioner John H. government unit should be made by metes and bounds
Makati only
Osmenñ a as senator, taxpayer, and concerned citizen. with technical descriptions. 2
by special law
Petitioner assails section 52 of R.A. No. 7854 as
(the Charter
unconstitutional on the same grounds as aforestated.
in violation of The importance of drawing with precise strokes the
the territorial boundaries of a local unit of government
constitutional We find no merit in the petitions. cannot be overemphasized. The boundaries must be
provision clear for they define the limits of the territorial
requiring a jurisdiction of a local government unit. It can
I
general legitimately exercise powers of government only within
reapportionm the limits, its acts are ultra vires. Needless to state, any
ent law to be Section 2, Article I of R.A. No. 7854 delineated the land uncertainty in the boundaries of local government units
passed by areas of the proposed city of Makati, thus: will sow costly conflicts in the exercise of governmental
Congress powers which ultimately will prejudice the people's
within three welfare. This is the evil sought to avoided by the Local
Sec. 2. The City of Makati. — The
(3) years Government Code in requiring that the land area of a
Municipality of Makati shall be
following the local government unit must be spelled out in metes and
converted into a highly urbanized
return of bounds, with technical descriptions.
city to be known as the City of
every census;
Makati, hereinafter referred to as
the City, which shall comprise the Given the facts of the cases at bench, we cannot perceive
(b) the present territory of the how this evil can be brought about by the description
increase in Municipality of Makati in made in section 2 of R.A. No. 7854, Petitioners have not
legislative Metropolitan Manila Area over demonstrated that the delineation of the land area of
district was which it has jurisdiction bounded the proposed City of Makati will cause confusion as to
not expressed on the northeast by Pasig River its boundaries. We note that said delineation did not
in the title of and beyond by the City of change even by an inch the land area previously covered
the bill; and Mandaluyong and the Municipality by Makati as a municipality. Section 2 did not add,
of Pasig; on the southeast by the subtract, divide, or multiply the established land area of
municipalities of Pateros and Makati. In language that cannot be any clearer, section 2
(c) the
Taguig; on the southwest by the stated that, the city's land area "shall comprise
addition of
City of Pasay and the Municipality the present territory of the municipality."
another
of Taguig; and, on the northwest,
legislative
by the City of Manila.
district in The deliberations of Congress will reveal that there is a
Makati is not legitimate reason why the land area of the proposed

35
City of Makati was not defined by metes and bounds,
with technical descriptions. At the time of the
consideration of R.A. No. 7854, the territorial dispute
between the municipalities of Makati and Taguig over
Fort Bonifacio was under court litigation. Out of a
becoming sense of respect to co-equal department of
government, legislators felt that the dispute should be
left to the courts to decide. They did not want to
foreclose the dispute by making a legislative finding of
fact which could decide the issue. This would have
ensued if they defined the land area of the proposed city
by its exact metes and bounds, with technical
descriptions. 3 We take judicial notice of the fact that
Congress has also refrained from using the metes and
bounds description of land areas of other local
government units with unsettled boundary disputes. 4
We hold that the existence of a boundary dispute does
not per se present an insurmountable difficulty which
will prevent Congress from defining with reasonable
certitude the territorial jurisdiction of a local
government unit. In the cases at bench, Congress
maintained the existing boundaries of the proposed City
of Makati but as an act of fairness, made them subject to
the ultimate resolution by the courts. Considering these
peculiar circumstances, we are not prepared to hold
that section 2 of R.A. No. 7854 is unconstitutional. We
sustain the submission of the Solicitor General in this
regard, viz.:
Going now to Sections 7 and 450 of
the Local Government Code, it is
beyond cavil that the requirement
stated therein, viz.: "the territorial
jurisdiction of newly created or
converted cities should be
described by meted and bounds,
with technical descriptions" —
was made in order to provide a
means by which the area of said
cities may be reasonably
ascertained. In other words, the
requirement on metes and bounds
was meant merely as tool in the
establishment of local government
units. It is not an end in itself. Ergo,
so long as the territorial
jurisdiction of a city may be
reasonably ascertained, i.e., by
referring to common boundaries
with neighboring municipalities, as
in this case, then, it may be
concluded that the legislative
intent behind the law has been
sufficiently served.
Certainly, Congress did not intends
that laws creating new cities must
contain therein detailed technical
descriptions similar to those
appearing in Torrens titles, as
petitioners seem to imply. To
require such description in the law
as a condition sine qua non for its
validity would be to defeat the very
purpose which the Local
Government Code to seeks to
serve. The manifest intent of the
Code is to empower local
government units and to give them
their rightful due. It seeks to make
local governments more
responsive to the needs of their
constituents while at the same
time serving as a vital cog in
national development. To
invalidate R.A. No. 7854 on the
mere ground that no cadastral type
of description was used in the law
would serve the letter but defeat
the spirit of the Code. It then
becomes a case of the master
serving the slave, instead of the
other way around. This could not
be the intendment of the law.
Too well settled is the rule that
laws must be enforced when
ascertained, although it may not be
consistent with the strict letter of
the statute. Courts will not follow
the letter of the statute when to do
so would depart from the true
intent of the legislature or would
otherwise yield conclusions
inconsistent with the general
purpose of the act. (Torres v.
Limjap, 56 Phil., 141; Tanñ ada v.
Cuenco, 103 Phil. 1051; Hidalgo v.
Hidalgo, 33 SCRA 1105).
Legislation is an active instrument
of government, which, for
purposes of interpretation, means
that laws have ends to achieve, and
statutes should be so construed as
not to defeat but to carry out such
ends and purposes (Bocolbo v.
Estanislao, 72 SCRA 520). The
same rule must indubitably apply
to the case at bar.
II
Petitioners in G.R. No. 118577 also assail the
constitutionality of section 51, Article X of R.A. No. 7854.
Section 51 states:
Sec. 51. Officials of the City of
Makati. — The represent elective
officials of the Municipality of
Makati shall continue as the
officials of the City of Makati and
shall exercise their powers and
functions until such time that a
new election is held and the duly
elected officials shall have already
qualified and assume their
offices: Provided, The new city will
acquire a new corporate existence.
The appointive officials and
employees of the City shall
likewise continues exercising their
functions and duties and they shall
be automatically absorbed by the
city government of the City of
Makati.
They contend that this section collides with section 8,
Article X and section 7, Article VI of the Constitution
which provide:
Sec. 8. The term of office of elective
local officials, except barangay
36
 officials, which shall be
determined by law, shall be three
years and no such official shall
serve for more than three
consecutive terms. Voluntary
renunciation of the office for any
length of time shall not be
considered as an interruption in
the continuity of his service for the
full term for which he was elected.
xxx xxx xxx
Sec. 7. The Members of the House
of Representatives shall be elected
for a term of three years which
shall begin, unless otherwise
provided by law, at noon on the
thirtieth day of June next following
their election.
No Member of the House of
Representatives shall serve for
more than three consecutive
terms. Voluntary renunciation of
the office for any length of time
shall not be considered as an
interruption in the continuity of
his service for the full term for
which he was elected.
Petitioners stress that under these provisions, elective
local officials, including Members of the House of
Representative, have a term of three (3) years and are
prohibited from serving for more than
three (3) consecutive terms. They argue that by
providing that the new city shall acquire a new
corporate existence, section 51 of R.A. No. 7854 restarts
the term of the present municipal elective officials of
Makati and disregards the terms previously served by
them. In particular, petitioners point that section 51
favors the incumbent Makati Mayor, respondent Jejomar
Binay, who has already served for two (2) consecutive
terms. They further argue that should Mayor Binay
decide to run and eventually win as city mayor in the
coming elections, he can still run for the same position
in 1998 and seek another three-year consecutive term
since his previous three-year consecutive term
as municipal mayorwould not be counted. Thus,
petitioners conclude that said section 51 has been
conveniently crafted to suit the political ambitions of
respondent Mayor Binay.
We cannot entertain this challenge to the
constitutionality of section 51. The requirements before
a litigant can challenge the constitutionality of a law are
well delineated. They are: 1) there must be an actual
case or controversy; (2) the question of constitutionality
must be raised by the proper party; (3) the
constitutional question must be raised at the earliest
possible opportunity; and (4) the decision on the
constitutional question must be necessary to the
determination of the case itself. 5
Petitioners have far from complied with these
requirements. The petition is premised on the
occurrence of many contingent events, i.e., that Mayor
Binay will run again in this coming mayoralty elections;
that he would be re-elected in said elections; and that he
would seek re-election for the same position in the 1998
elections. Considering that these contingencies may or
may not happen, petitioners merely pose a hypothetical
issue which has yet to ripen to an actual case or
controversy. Petitioners who are residents of Taguig
(except Mariano) are not also the proper parties to raise
this abstract issue. Worse, they hoist this futuristic issue
in a petition for declaratory relief over which this Court
has no jurisdiction.
III
Finally, petitioners in the two (2) cases at bench assail
the constitutionality of section 52, Article X of R.A. No.
7854. Section 52 of the Charter provides:
Sec. 52. Legislative Districts. —
Upon its conversion into a highly-
urbanized city, Makati shall
thereafter have at least two (2)
legislative districts that shall
initially correspond to the two (2)
existing districts created under
Section 3(a) of Republic Act. No.
7166 as implemented by the
Commission on Elections to
commence at the next national
elections to be held after the
effectivity of this Act. Henceforth,
barangays Magallanes, Dasmarinñ as
and Forbes shall be with the first
district, in lieu of Barangay
Guadalupe-Viejo which shall form
part of the second district.
(emphasis supplied)
They contend. that the addition of another legislative
district in Makati is unconstitutional for: (1)
reapportionment 6cannot made by a special law, (2) the
addition of a legislative district is not expressed in the
title of the bill 7 and (3) Makati's population, as per the
1990 census, stands at only four hundred fifty thousand
(450,000).
These issues have been laid to rest in the recent case
of Tobias v. Abalos. 8 In said case, we ruled that
reapportionment of legislative districts may be made
through a special law, such as in the charter of a new
city. The Constitution 9 clearly provides that Congress
shall be composed of not more than two hundred fifty
(250) members, unless otherwise fixed by law. As thus
worded, the Constitution did not preclude Congress
from increasing its membership by passing a law, other
than a general reapportionment of the law. This is its
exactly what was done by Congress in enacting R.A. No.
7854 and providing for an increase in Makati's
legislative district. Moreover, to hold that
reapportionment can only be made through a general
apportionment law, with a review of all the legislative
districts allotted to each local government unit
nationwide, would create an inequitable situation
where a new city or province created by Congress will
be denied legislative representation for an
indeterminate period of time. 10 The intolerable
situations will deprive the people of a new city or
province a particle of their sovereignty. 11 Sovereignty
cannot admit of any kind of subtraction. It is indivisible.
It must be forever whole or it is not sovereignty.
Petitioners cannot insist that the addition of another
legislative district in Makati is not in accord with section
5(3), Article VI 12 of the Constitution for as of the latest
survey (1990 census), the population of Makati stands
37
at only four hundred fifty thousand (450,000). 13 Said
section provides, inter alia, that a city with a population
of at least two hundred fifty thousand (250,000) shall
have at least one representative. Even granting that the
population of Makati as of the 1990 census stood at four
hundred fifty thousand (450,000), its legislative district
may still be increased since it has met the minimum
population requirement of two hundred fifty thousand
(250,000). In fact, section 3 of the Ordinance appended
to the Constitution provides that a city whose
population has increased to more than two hundred fifty
thousand (250,000) shall be entitled to at least one
congressional representative. 14
Finally, we do not find merit in petitioners' contention
that the creation of an additional legislative district in
Makati should have been expressly stated in the title of
the bill. In the same case of Tobias v. Abalos, op cit., we
reiterated the policy of the Court favoring a liberal
construction of the "one title-one subject" rule so as not
to impede legislation. To be sure, with Constitution does
not command that the title of a law should exactly
mirror, fully index, or completely catalogue all its
details. Hence, we ruled that "it should be sufficient
compliance if the title expresses the general subject and
all the provisions are germane to such general subject."
WHEREFORE, the petitions are hereby DISMISSED for
lack of merit No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero,
Bellosillo, Melo, Quiason, Vitug, Kapunan, Mendoza and
Francisco, JJ., concur.
Separate Opinions
DAVIDE, JR., J., concurring:
I concur in the well written opinion of Mr. Justice
Reynato S. Puno. I wish, however, to add a few
observations.
I.
Section 10, Article X of the Constitution provides that
"[n]o province, city, municipality or barangay may be
created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the
criteria established in the local government code and
subject to the approval by a majority of the votes cast in
a plebiscite in the political units directly affected." These
criteria are now set forth in Section 7 of the Local
Government Code of 1991 (R.A. No. 7160). One of these
is that the territorial jurisdiction of the local
government unit to be created or converted should be
properly identified by metes and bounds with technical
descriptions.
The omission of R.A. No. 7854 (An Act Converting the
Municipality of Makati Into a Highly Urbanized City to be
Known as the City of Makati) to describe the territorial
boundaries of the city by metes and bounds does not
make R.A. No. 7854 unconstitutional or illegal. The
Constitution does not provide for a description by metes
and bounds as a condition sine qua non for the creation
of a local government unit or its conversion from one
level to another. The criteria provided for in Section 7 of
R.A. No. 7854 are not absolute, for, as a matter of fact,
the section starts with the clause "as a general rule." The
petitioners' reliance on Section 450 of R.A. No. 7160 is
unavailing Said section only applies to the conversion of
a municipality or a cluster of barangays into a
COMPONENT CITY, not a highly urbanized city. It
pertinently reads as follows:
Sec. 450. Requisite for creation. —
(a) A municipality or a cluster of
barangays may be converted into a
component city if it has an average
annual income, as certified by the
Department of Finance, of at least
Twenty million pesos
(P20,000,000.00) for the last two
(2) consecutive years based on
1991 constant prices, and if it has
either of the following requisites:
xxx xxx xxx
(b) The territorial jurisdiction of a
newly created city shall be
properly identified by metes and
bounds. . . .
The constitution classifies cities as either highly
urbanized or component. Section 12 of Article X thereof
provides:
Sec. 12. Cities that are highly
urbanized, as determined by law,
and component cities whose
charters prohibit their voters from
voting for provincial elective
officials, shall be independent of
the province. The voters of
component cities within a
province, whose charters contain
no such prohibition, shall not be
deprived of their right to vote for
elective provincial officials.
And Section 451 of R.A. No. 7160 provides:
Sec. 451. Cities Classified. — A city
may either be component or highly
urbanized: Provided, however, That
the criteria established in this
Code shall not affect the
classification and corporate status
of existing cities.
Independent component cities are
those component cities whose
charters prohibit their voters from
voting for provincial elective
officials. Independent component
cities shall be independent of the
province.
II.
Strictly speaking, the increase in the number of
legislative seats for the City of Makati provided for in
R.A. No. 7854 is not an increase justified by the
clause unless otherwise fixed by law in paragraph 1,
38
Section 5, Article VI of the Constitution. That clause
contemplates of the reapportionment mentioned in the
succeeding paragraph (4) of the said Section which
reads in full as follows:
Within three years following the
return of every census, the
Congress shall make a
reapportionment of legislative
districts based on the standards
provided in this section.
In short, the clause refers to a general reapportionment
law.
The increase under R.A. No. 7854 is a permissible
increase under Sections 1 and 3 of the Ordinance
appended to the Constitution which reads:
Sec. 1. For purposes of the election
of Members of the House of
Representatives of the First
Congress of the Philippines under
the Constitution proposed by the
1986 Constitutional
Commission and subsequent
elections, and until otherwise
provided by law, the Members
thereof shall be elected from
legislative districts apportioned
among the provinces, cities,
and the Metropolitan Manila
Area as follows:
METROPOLITAN MANILA AREA
xxx xxx xxx
MAKATI one (1)
xxx xxx xxx
Sec. 3. Any province that may
hereafter be created, or any city
whose population may hereafter
increase to more than two hundred
fifty thousand shall be entitled in
the immediately following election
to at least one Member or such
number of Members as it may be
entitled to on the basis of the
number of its inhabitants and
according to the standards set forth
in paragraph (3), Section 5 of
Article VI of the Constitution. The
number of Members apportioned
to the province out of which such
new province was created, or
where the city, whose population
has so increased, is geographically
located shall be correspondingly
adjusted by the Commission on
Elections but such adjustment
shall not be made within one
hundred and twenty days before
the election. (Emphases supplied)
Separate Opinions
DAVIDE, JR., J., concurring:
I concur in the well written opinion of Mr. Justice
Reynato S. Puno. I wish, however, to add a few
observations.
I.
Section 10, Article X of the Constitution provides that
"[n]o province, city, municipality or barangay may be
created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the
criteria established in the local government code and
subject to the approval by a majority of the votes cast in
a plebiscite in the political units directly affected." These
criteria are now set forth in Section 7 of the Local
Government Code of 1991 (R.A. No. 7160). One of these
is that the territorial jurisdiction of the local
government unit to be created or converted should be
properly identified by metes and bounds with technical
descriptions.
The omission of R.A. No. 7854 (An Act Converting the
Municipality of Makati Into a Highly Urbanized City to be
Known as the City of Makati) to describe the territorial
boundaries of the city by metes and bounds does not
make R.A. No. 7854 unconstitutional or illegal. The
Constitution does not provide for a description by metes
and bounds as a condition sine qua non for the creation
of a local government unit or its conversion from one
level to another. The criteria provided for in Section 7 of
R.A. No. 7854 are not absolute, for, as a matter of fact,
the section starts with the clause "as a general rule." The
petitioners' reliance on Section 450 of R.A. No. 7160 is
unavailing Said section only applies to the conversion of
a municipality or a cluster of barangays into a
COMPONENT CITY, not a highly urbanized city. It
pertinently reads as follows:
Sec. 450. Requisite for creation. —
(a) A municipality or a cluster of
barangays may be converted into a
component city if it has an average
annual income, as certified by the
Department of Finance, of at least
Twenty million pesos
(P20,000,000.00) for the last two
(2) consecutive years based on
1991 constant prices, and if it has
either of the following requisites:
xxx xxx xxx
(b) The territorial jurisdiction of a
newly created city shall be
properly identified by metes and
bounds. . . .
The constitution classifies cities as either highly
urbanized or component. Section 12 of Article X thereof
provides:
Sec. 12. Cities that are highly
urbanized, as determined by law,
and component cities whose
charters prohibit their voters from
voting for provincial elective
officials, shall be independent of
the province. The voters of
39
 component cities within a
province, whose charters contain
no such prohibition, shall not be
deprived of their right to vote for
elective provincial officials.
And Section 451 of R.A. No. 7160 provides:
Sec. 451. Cities Classified. — A city
may either be component or highly
urbanized: Provided, however, That
the criteria established in this
Code shall not affect the
classification and corporate status
of existing cities.
Independent component cities are
those component cities whose
charters prohibit their voters from
voting for provincial elective
officials. Independent component
cities shall be independent of the
province.
II.
Strictly speaking, the increase in the number of
legislative seats for the City of Makati provided for in
R.A. No. 7854 is not an increase justified by the
clause unless otherwise fixed by law in paragraph 1,
Section 5, Article VI of the Constitution. That clause
contemplates of the reapportionment mentioned in the
succeeding paragraph (4) of the said Section which
reads in full as follows:
Within three years following the
return of every census, the
Congress shall make a
reapportionment of legislative
districts based on the standards
provided in this section.
In short, the clause refers to a general reapportionment
law.
The increase under R.A. No. 7854 is a permissible
increase under Sections 1 and 3 of the Ordinance
appended to the Constitution which reads:
Sec. 1. For purposes of the election
of Members of the House of
Representatives of the First
Congress of the Philippines under
the Constitution proposed by the
1986 Constitutional
Commission and subsequent
elections, and until otherwise
provided by law, the Members
thereof shall be elected from
legislative districts apportioned
among the provinces, cities,
and the Metropolitan Manila
Area as follows:
METROPOLITAN MANILA AREA
xxx xxx xxx
MAKATI one (1)
xxx xxx xxx
Sec. 3. Any province that may
hereafter be created, or any city
whose population may hereafter
increase to more than two hundred
fifty thousand shall be entitled in
the immediately following election
to at least one Member or such
number of Members as it may be
entitled to on the basis of the
number of its inhabitants and
according to the standards set forth
in paragraph (3), Section 5 of
Article VI of the Constitution. The
number of Members apportioned
to the province out of which such
new province was created, or
where the city, whose population
has so increased, is geographically
located shall be correspondingly
adjusted by the Commission on
Elections but such adjustment
shall not be made within one
hundred and twenty days before
the election. (Emphases supplied)
PREMATURITY
[G.R. No. 152295. July 9, 2002]
ANTONIETTE V.C. MONTESCLAROS, MARICEL
CARANZO, JOSEPHINE ATANGAN, RONALD
ATANGAN and CLARIZA DECENA, and
OTHER YOUTH OF THE LAND SIMILARLY
SITUATED, petitioners, vs. COMMISSION ON
ELECTIONS, DEPARTMENT OF INTERIOR
AND LOCAL GOVERNMENT, DEPARTMENT
OF BUDGET AND MANAGEMENT,
EXECUTIVE SECRETARY of the OFFICE OF
THE PRESIDENT, SENATOR FRANKLIN
DRILON in his capacity as Senate
President and SENATOR AQUILINO
PIMENTEL in his capacity as Minority
Leader of the Senate of the Philippines,
CONGRESSMAN JOSE DE VENECIA in his
capacity as Speaker, CONGRESSMAN
AGUSTO L. SYJOCO in his capacity as
Chairman of the Committee on Suffrage
and Electoral Reforms, and
CONGRESSMAN EMILIO C. MACIAS II in his
capacity as Chairman of the Committee on
Local Government of the House of
Representatives, THE PRESIDENT OF THE
PAMBANSANG KATIPUNAN NG MGA
SANGGUNIANG KABATAAN, AND ALL
THEIR AGENTS AND
REPRESENTATIVES, respondents.
DECISION
CARPIO, J.:
40
The Case
Before us is a petition for certiorari, prohibition
and mandamus with prayer for a temporary restraining
order or preliminary injunction. The petition seeks to
prevent the postponement of the Sangguniang
Kabataan (SK for brevity) elections originally scheduled
last May 6, 2002. The petition also seeks to prevent the
reduction of the age requirement for membership in the
SK.
Petitioners, who are all 20 years old, filed this
petition as a taxpayers and class suit, on their own
behalf and on behalf of other youths similarly situated.
Petitioners claim that they are in danger of being
disqualified to vote and be voted for in the SK elections
should the SK elections on May 6, 2002 be postponed to
a later date. Under the Local Government Code of 1991
(R.A. No. 7160), membership in the SK is limited to
youths at least 15 but not more than 21 years old.
Petitioners allege that public respondents
connived, confederated and conspired to postpone the
May 6, 2002 SK elections and to lower the membership
age in the SK to at least 15 but less than 18 years of
age. Petitioners assail the alleged conspiracy because
youths at least 18 but not more than 21 years old will be
summarily and unduly dismembered, unfairly
discriminated, unnecessarily disenfranchised, unjustly
disassociated and obnoxiously disqualified from the SK
organization.[1]
Thus, petitioners pray for the issuance of a
temporary restraining order or preliminary injunction -
a) To prevent, annul or declare unconstitutional any
law, decree, Comelec resolution/directive and other
respondents issuances, orders and actions and the like
in postponing the May 6, 2002 SK elections.
b) To command the respondents to continue the May 6,
2002 SK elections set by the present law and in
accordance with Comelec Resolutions No. 4713 and
4714 and to expedite the funding of the SK elections.
c) In the alternative, if the SK elections will be
postponed for whatever reason, there must be a definite
date for said elections, for example, July 15, 2002, and
the present SK membership, except those incumbent SK
officers who were elected on May 6, 1996, shall be
allowed to run for any SK elective position even if they
are more than 21 years old.
d) To direct the incumbent SK officers who are
presently representing the SK in every sanggunian and
the NYC to vacate their post after the barangay elections.
[2]
The Facts
The SK is a youth organization originally
established by Presidential Decree No. 684 as
the Kabataang Barangay (KB for brevity). The KB was
composed of all barangay residents who were less than
18 years old, without specifying the minimum age. The
KB was organized to provide its members with the
opportunity to express their views and opinions on
issues of transcendental importance.[3]
The Local Government Code of 1991 renamed the
KB to SK and limited SK membership to those youths at
least 15 but not more than 21 years of age.[4]The SK
remains as a youth organization in every barangay
tasked to initiate programs to enhance the
social, political, economic, cultural, intellectual, moral,
spiritual, and physical development of the youth.[5] The
SK in every barangay is composed of a chairperson and
seven members, all elected by the Katipunan ng
Kabataan. The Katipunan ng Kabataan in every
barangay is composed of all citizens actually residing in
the barangay for at least six months and who meet the
membership age requirement.
The first SK elections took place on December 4,
1992. RA No. 7808 reset the SK elections to the first
Monday of May of 1996 and every three years
thereafter. RA No. 7808 mandated the Comelec to
supervise the conduct of the SK elections under rules
the Comelec shall promulgate. Accordingly, the Comelec
on December 4, 2001 issued Resolution Nos. 4713[6] and
4714[7] to govern the SK elections on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C.
Montesclaros (Montesclaros for brevity) sent a
letter[8] to the Comelec, demanding that the SK elections
be held as scheduled on May 6, 2002. Montesclaros also
urged the Comelec to respond to her letter within 10
days upon receipt of the letter, otherwise, she will seek
judicial relief.
On February 20, 2002, Alfredo L. Benipayo
(Chairman Benipayo for brevity), then Comelec
Chairman, wrote identical letters to the Speaker of the
House[9]and the Senate President[10] about the status of
pending bills on the SK and Barangay elections. In his
letters, the Comelec Chairman intimated that it was
operationally very difficult to hold both elections
simultaneously in May 2002. Instead, the Comelec
Chairman expressed support for the bill of Senator
Franklin Drilon that proposed to hold the Barangay
elections in May 2002 and postpone the SK elections to
November 2002.
Ten days lapsed without the Comelec responding
to the letter of Montesclaros. Subsequently, petitioners
received a copy of Comelec En Banc Resolution No.
4763[11] dated February 5, 2002 recommending to
Congress the postponement of the SK elections to
November 2002 but holding the Barangay elections in
May 2002 as scheduled.[12]
On March 6, 2002, the Senate and the House of
Representatives passed their respective bills postponing
the SK elections. On March 11, 2002, the Bicameral
Conference Committee (Bicameral Committee for
brevity) of the Senate and the House came out with a
Report[13] recommending approval of the reconciled bill
consolidating Senate Bill No. 2050[14] and House Bill No.
4456.[15] The Bicameral Committees consolidated bill
reset the SK and Barangay elections to July 15, 2002 and
lowered the membership age in the SK to at least 15 but
not more than 18 years of age.
On March 11, 2002, petitioners filed the instant
petition.
On March 11, 2002, the Senate approved the
Bicameral Committees consolidated bill and on March
13, 2002, the House of Representatives approved the
same. The President signed the approved bill into law
on March 19, 2002.
41
The Issues
Petitioners[16] raise the following grounds in
support of their petition:
I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC)
WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN THEY
INTENDED TO POSTPONE THE SK ELECTIONS.
II.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC)
WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN THEY
INTENDED TO DISCRIMINATE, DISENFRANCHISE,
SINGLE OUT AND DISMEMBER THE SK MEMBERS WHO
ARE 18 BUT NOT LESS[17] (SIC) THAN 21 YEARS OLD
COMPOSED OF ABOUT 7 MILLION YOUTH.
III.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC)
WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN THEY
WILLFULLY FAILED TO FUND THE SK ELECTION
PURPORTEDLY TO POSTPONE THE SAME IN ORDER TO
IMPLEMENT THEIR ILLEGAL SCHEME AND
MACHINATION IN SPITE OF THE FACT THAT THERE
ARE AVAILABLE FUNDS FOR THE PURPOSE.
IV.
THE INCUMBENT SK OFFICERS WANTED TO
PERPETUALLY SIT ON THEIR RESPECTIVE OFFICES
CONTRARY TO THE ENVISION (SIC) OF THE CREATION
OF THE SK ORGANIZATION, HENCE, IN VIOLATION OF
LAW AND CONSTITUTION.[18]
The Courts Ruling
The petition is bereft of merit.
At the outset, the Court takes judicial notice of the
following events that have transpired since petitioners
filed this petition:
1. The May 6, 2002 SK elections and May
13, 2002 Barangay elections were not
held as scheduled.
2. Congress enacted RA No. 9164[19] which
provides that voters and candidates for
the SK elections must be at least 15 but
less than 18 years of age on the day of
the election.[20] RA No. 9164 also
provides that there shall be a
synchronized SK and Barangay
elections on July 15, 2002.
3. The Comelec promulgated Resolution No.
4846, the rules and regulations for the
conduct of the July 15, 2002
synchronized SK and Barangay
elections.
Petitioners, who all claim to be 20 years old,
argue that the postponement of the May 6, 2002 SK
elections disenfranchises them, preventing them from
voting and being voted for in the SK
elections. Petitioners theory is that if the SK elections
were postponed to a date later than May 6, 2002, the
postponement would disqualify from SK membership
youths who will turn 21 years old between May 6, 2002
and the date of the new SK elections. Petitioners claim
that a reduction in the SK membership age to 15 but
less than 18 years of age from the then membership age
of 15 but not more than 21 years of age would
disqualify about seven million youths. The public
respondents failure to hold the elections on May 6, 2002
would prejudice petitioners and other youths similarly
situated.
Thus, petitioners instituted this petition to: (1)
compel public respondents to hold the SK elections on
May 6, 2002 and should it be postponed, the SK
elections should be held not later than July 15, 2002; (2)
prevent public respondents from passing laws and
issuing resolutions and orders that would lower the
membership age in the SK; and (3) compel public
respondents to allow petitioners and those who have
turned more than 21 years old on May 6, 2002 to
participate in any re-scheduled SK elections.
The Courts power of judicial review may be
exercised in constitutional cases only if all the following
requisites are complied with, namely: (1) the existence
of an actual and appropriate case or controversy; (2) a
personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial
review is pleaded at the earliest opportunity; and (4)
the constitutional question is the lis mota of the case.[21]
In the instant case, there is no actual controversy
requiring the exercise of the power of judicial
review. While seeking to prevent a postponement of the
May 6, 2002 SK elections, petitioners are nevertheless
amenable to a resetting of the SK elections to any date
not later than July 15, 2002. RA No. 9164 has reset the
SK elections to July 15, 2002, a date acceptable to
petitioners. With respect to the date of the SK elections,
there is therefore no actual controversy requiring
judicial intervention.
Petitioners prayer to prevent Congress from
enacting into law a proposed bill lowering the
membership age in the SK does not present an actual
justiciable controversy. A proposed bill is not subject to
judicial review because it is not a law. A proposed bill
creates no right and imposes no duty legally enforceable
by the Court. A proposed bill, having no legal effect,
violates no constitutional right or duty. The Court has no
power to declare a proposed bill constitutional or
unconstitutional because that would be in the nature of
rendering an advisory opinion on a proposed act of
Congress. The power of judicial review cannot be
exercised in vacuo.[22] The second paragraph of Section
1, Article VIII of the Constitution states
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which
are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
Government. (Emphasis supplied)
42
Thus, there can be no justiciable controversy involving
the constitutionality of a proposed bill. The Court can
exercise its power of judicial review only after a law is
enacted, not before.
Under the separation of powers, the Court cannot
restrain Congress from passing any law, or from setting
into motion the legislative mill according to its internal
rules. Thus, the following acts of Congress in the
exercise of its legislative powers are not subject to
judicial restraint: the filing of bills by members of
Congress, the approval of bills by each chamber of
Congress, the reconciliation by the Bicameral
Committee of approved bills, and the eventual approval
into law of the reconciled bills by each chamber of
Congress. Absent a clear violation of specific
constitutional limitations or of constitutional rights of
private parties, the Court cannot exercise its power of
judicial review over the internal processes or
procedures of Congress.[23]
The Court has also no power to dictate to
Congress the object or subject of bills that Congress
should enact into law. The judicial power to review the
constitutionality of laws does not include the power to
prescribe to Congress what laws to enact. The Court has
no power to compel Congress by mandamus to enact a
law allowing petitioners, regardless of their age, to vote
and be voted for in the July 15, 2002 SK elections. To do
so would destroy the delicate system of checks and
balances finely crafted by the Constitution for the three
co-equal, coordinate and independent branches of
government.
Under RA No. 9164, Congress merely restored the
age requirement in PD No. 684, the original charter of
the SK, which fixed the maximum age for membership in
the SK to youths less than 18 years old. Petitioners do
not have a vested right to the permanence of the age
requirement under Section 424 of the Local
Government Code of 1991. Every law passed by
Congress is always subject to amendment or repeal by
Congress. The Court cannot restrain Congress from
amending or repealing laws, for the power to make laws
includes the power to change the laws.[24]
The Court cannot also direct the Comelec to allow
over-aged voters to vote or be voted for in an election
that is limited under RA No. 9164 to youths at least 15
but less than 18 years old. A law is needed to allow all
those who have turned more than 21 years old on or
after May 6, 2002 to participate in the July 15, 2002 SK
elections. Youths from 18 to 21 years old as of May 6,
2002 are also no longer SK members, and cannot
participate in the July 15, 2002 SK elections.Congress
will have to decide whether to enact an amendatory
law. Petitioners remedy is legislation, not judicial
intervention.
Petitioners have no personal and substantial
interest in maintaining this suit. A party must show that
he has been, or is about to be denied some personal
right or privilege to which he is lawfully entitled. [25] A
party must also show that he has a real interest in the
suit. By real interest is meant a present substantial
interest, as distinguished from a mere expectancy or
future, contingent, subordinate, or inconsequential
interest.[26]
In the instant case, petitioners seek to enforce a
right originally conferred by law on those who were at
least 15 but not more than 21 years old. Now, with the
passage of RA No. 9164, this right is limited to those
who on the date of the SK elections are at least 15 but
less than 18 years old. The new law restricts
membership in the SK to this specific age group. Not
falling within this classification, petitioners have ceased
to be members of the SK and are no longer qualified to
participate in the July 15, 2002 SK elections. Plainly,
petitioners no longer have a personal and substantial
interest in the SK elections.
This petition does not raise any constitutional
issue. At the time petitioners filed this petition, RA No.
9164, which reset the SK elections and reduced the age
requirement for SK membership, was not yet enacted
into law. After the passage of RA No. 9164, petitioners
failed to assail any provision in RA No. 9164 that could
be unconstitutional. To grant petitioners prayer to be
allowed to vote and be voted for in the July 15, 2002 SK
elections necessitates assailing the constitutionality of
RA No. 9164. This, petitioners have not done. The Court
will not strike down a law unless its constitutionality is
properly raised in an appropriate action and adequately
argued.[27]
The only semblance of a constitutional issue,
albeit erroneous, that petitioners raise is their claim
that SK membership is a property right within the
meaning of the Constitution.[28] Since certain public
offices are reserved for SK officers, petitioners also
claim a constitutionally protected opportunity to occupy
these public offices. In petitioners own words, they and
others similarly situated stand to lose their opportunity
to work in the government positions reserved for SK
members or officers.[29] Under the Local Government
Code of 1991, the president of the federation of SK
organizations in a municipality, city or province is anex-
officio member of the municipal council, city council or
provincial board, respectively.[30] The chairperson of the
SK in the barangay is an ex-officio member of the
Sangguniang Barangay.[31] The president of the national
federation of SK organizations is an ex-officio member of
the National Youth Commission, with rank of a
Department Assistant Secretary.[32]
Congress exercises the power to prescribe the
qualifications for SK membership. One who is no longer
qualified because of an amendment in the law cannot
complain of being deprived of a proprietary right to SK
membership. Only those who qualify as SK members
can contest, based on a statutory right, any act
disqualifying them from SK membership or from voting
in the SK elections. SK membership is not a property
right protected by the Constitution because it is a mere
statutory right conferred by law. Congress may amend
at any time the law to change or even withdraw the
statutory right.
A public office is not a property right. As the
Constitution expressly states, a [P]ublic office is a public
trust.[33] No one has a vested right to any public office,
much less a vested right to an expectancy of holding a
public office. In Cornejo v. Gabriel,[34] decided in 1920,
the Court already ruled:
Again, for this petition to come under the due process of
law prohibition, it would be necessary to consider an
office a property. It is, however, well settled x x xthat a
public office is not property within the sense of the
constitutional guaranties of due process of law, but is
a public trust or agency. x x x The basic idea of the
government x x x is that of a popular representative
government, the officers being mere agents and not
rulers of the people, one where no one man or set of
men has a proprietary or contractual right to an office,
but where every officer accepts office pursuant to the
provisions of the law and holds the office as a trust for
the people he represents. (Emphasis supplied)
43
 Petitioners, who apparently desire to hold public
office, should realize from the very start that no one has
a proprietary right to public office. While the law makes
an SK officer an ex-officio member of a local government
legislative council, the law does not confer on
petitioners a proprietary right or even a proprietary
expectancy to sit in local legislative councils. The
constitutional principle of a public office as a public
trust precludes any proprietary claim to public
office. Even the State policy directing equal access to
opportunities for public service[35] cannot bestow on
petitioners a proprietary right to SK membership or a
proprietary expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage
the youths involvement in public affairs,[36] this policy
refers to those who belong to the class of people defined
as the youth. Congress has the power to define who are
the youth qualified to join the SK, which itself is a
creation of Congress. Those who do not qualify because
they are past the age group defined as the youth cannot
insist on being part of the youth. In government service,
once an employee reaches mandatory retirement age,
he cannot invoke any property right to cling to his
office. In the same manner, since petitioners are now
past the maximum age for membership in the SK, they
cannot invoke any property right to cling to their SK
membership.
The petition must also fail because no grave
abuse of discretion attended the postponement of the
SK elections. RA No. 9164 is now the law that prescribes
the qualifications of candidates and voters for the SK
elections. This law also fixes the date of the SK
elections. Petitioners are not even assailing the
constitutionality of RA No. 9164. RA No. 9164 enjoys the
presumption of constitutionality and will apply to the
July 15, 2002 SK elections.
Petitioners have not shown that the Comelec
acted illegally or with grave abuse of discretion in
recommending to Congress the postponement of the SK
elections. The very evidence relied upon by petitioners
contradict their allegation of illegality. The evidence
consist of the following: (1) Comelec en bancResolution
No. 4763 dated February 5, 2002 that recommended the
postponement of the SK elections to 2003; (2) the letter
of then Comelec Chairman Benipayo addressed to the
Speaker of the House of Representatives and the
President of the Senate; and (3) the Conference
Committee Report consolidating Senate Bill No. 2050
and House Bill No. 4456.
The Comelec exercised its power and duty to
enforce and administer all laws and regulations relative
to the conduct of an election, plebiscite, initiative,
referendum and recall[37] and to recommend to Congress
effective measures to minimize election spending.
[38]
The Comelecs acts enjoy the presumption of
regularity in the performance of official duties.[39] These
acts cannot constitute proof, as claimed by petitioners,
that there exists a connivance and conspiracy (among)
respondents in contravention of the present law. As the
Court held in Pangkat Laguna v. Comelec,[40] the
Comelec, as the government agency tasked with the
enforcement and administration of elections laws, is
entitled to the presumption of regularity of official acts
with respect to the elections.
The 1987 Constitution imposes upon the Comelec
the duty of enforcing and administering all laws and
regulations relative to the conduct of
elections.Petitioners failed to prove that the Comelec
committed grave abuse of discretion in recommending
to Congress the postponement of the May 6, 2002 SK
elections. The evidence cited by petitioners even
establish that the Comelec has demonstrated an earnest
effort to address the practical problems in holding the
SK elections on May 6, 2002. The presumption remains
that the decision of the Comelec to recommend to
Congress the postponement of the elections was made
in good faith in the regular course of its official duties.
Grave abuse of discretion is such capricious and
whimsical exercise of judgment that is patent and gross
as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law.[41] Public
respondents having acted strictly pursuant to their
constitutional powers and duties, we find no grave
abuse of discretion in their assailed acts.
Petitioners contend that the postponement of the
SK elections would allow the incumbent SK officers to
perpetuate themselves in power, depriving other youths
of the opportunity to serve in elective SK positions. This
argument deserves scant consideration. While RA No.
9164 contains a hold-over provision, incumbent SK
officials can remain in office only until their successors
have been elected or qualified. On July 15, 2002, when
the SK elections are held, the hold-over period expires
and all incumbent SK officials automatically cease to
hold their SK offices and their ex-officio public offices.
In sum, petitioners have no personal and
substantial interest in maintaining this suit. This
petition presents no actual justiciable
controversy. Petitioners do not cite any provision of law
that is alleged to be unconstitutional. Lastly, we find no
grave abuse of discretion on the part of public
respondents.
WHEREFORE, the petition is DISMISSED for utter
lack of merit.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Austria-Martinez, andCorona,
JJ., concur.
[1]
Rollo, pp. 4-5.
[2]
Ibid., pp. 14-15.
Second Whereas Clause of PD No. 684; See also
[3]
Mercado vs. Board of Election Supervisors of Ibaan,
Batangas, 243 SCRA 422 (1995).
This was the same membership qualification in
[4]
Section 116 of the Local Government Code of
1983. Earlier, PD No. 1102, issued on February 28, 1977,
had increased the age requirement to twenty-one years
of age or less.
Section 426 of the Local Government Code
[5]
enumerates the powers and functions of
the Sangguniag Kabataan as follows: Section
426.Powers and Functions of the Sangguniang Kabataan.
The Sangguniang Kabataan shall: (a) Promulgate
resolutions necessary to carry out the objectives of the
youth in the barangay in accordance with the applicable
provisions of this Code; (b) Initiate programs designed
to enhance the social, political, economic, cultural,
intellectual, moral, spiritual, and physical development
of the members; (c) Hold fund-raising activities, the
proceeds of which shall be tax-exempt and shall accrue
44
to the general fund of the sangguniang kabataan: RESOLUTION
Provided, however, That in the appropriation thereof,
the specific purpose for which such activity has been ROMERO, J.:
held shall be first satisfied; (d) Create such bodies or
committees as it may deem necessary to effectively Before this Court are consolidated petitions
carry out its programs and activities; (e) Submit annual questioning the constitutionality of some portions of
and end-of-term reports to the sangguniang barangay Republic Act No. 6657 otherwise known as the
on their projects and activities for the survival and Comprehensive Agrarian Reform Law.[1]
development of the youth in the barangay; (f) Consult
and coordinate with all youth organizations in the Petitioners Atlas Fertilizer Corporation,
barangay for policy formulation and program Philippine Federation of Fishfarm Producers, Inc. and
[2]

implementation; (g) Coordinate with the appropriate petitioner-in-intervention Archies Fishpond, Inc. and
national agency for the implementation of youth Arsenio Al. Acuna[3] are engaged in the aquaculture
development projects and programs at the national industry utilizing fishponds and prawn farms. They
level; (h) Exercise such other powers and perform such assail Sections 3 (b), 11, 13, 16 (d), 17 and 32 of R.A.
other duties and functions as the sangguniang barangay 6657, as well as the implementing guidelines and
may determine or delegate; and (i) Exercise such other procedures contained in Administrative Order Nos. 8
powers and perform such other duties and functions as and 10 Series of 1988 issued by public respondent
may be prescribed by law or ordinance. Secretary of the Department of Agrarian Reform as
unconstitutional.

Petitioners claim that the questioned provisions

of CARL violate the Constitution in the following
manner:

1. Sections 3 (b), 11, 13, 16 (d), 17 and 32 of CARL

extend agrarian reform to aquaculture lands even as
Section 4, Article XIII of the constitution limits agrarian
reform only to agriculture lands.

2. The questioned provisions similarly treat of

MOOTNESS
[G.R. No. 93100. June 19, 1997]ATLAS FERTILIZER
CORPORATION, petitioner, vs. THE HONORABLE
SECRETARY OF THE DEPARTMENT OF AGRARIAN
REFORM, respondent.
aquaculture lands and agriculture lands when they are
differently situated, and differently treat aquaculture
lands and other industrial lands, when they are
similarly situated in violation of the constitutional
guarantee of the equal protection of the laws.

3. The questioned provisions distort employment

benefits and burdens in favor of aquaculture employees
and against other industrial workers even as Section 1
[G.R. No. 97855. June 19, 1997]PHILIPPINE
and 3, Article XIII of the Constitution mandate the State
FEDERATION OF FISHFARM PRODUCERS,
to promote equality in economic and employment
INC., petitioner, vs. THE HONORABLE SECRETARY OF
opportunities.
THE DEPARTMENT OF AGRARIAN
REFORM, respondent.
4. The questioned provisions deprive petitioner of its
government-induced investments in aquaculture even
as Sections 2 and 3, Article XIII of the Constitution
mandate the State to respect the freedom of enterprise

45
and the right of enterprises to reasonable returns on
investments and to expansion and growth.
The constitutionality of the above-mentioned
provisions has been ruled upon in the case
of Luz Farms, Inc. v. Secretary of Agrarian Reform[4] rega
rding the inclusion of land devoted to the raising of
livestock, poultry and swine in its coverage.
The issue now before this Court is the
constitutionality of the same above-mentioned
provisions insofar as they include in its coverage lands
devoted to the aquaculture industry, particularly
fishponds and prawn farms.
In their first argument, petitioners contend that
in the case of Luz Farms, Inc. v. Secretary
of Agrarian Reform,[5] this Court has already ruled
impliedly that lands devoted to fishing are not
agriculture lands. In aquaculture, fishponds and prawn
farms, the use of land is only incidental to and not the
principal factor in productivity and, hence, as held
in Luz Farms, they too should be excluded from R.A.
6657 just as lands devoted to livestock, swine, and
poultry have been excluded for the same reason. They
also argue that they are entitled to the full benefit of Luz
Farms to the effect that only five percent of the total
investment in aquaculture activities, fishponds, and
prawn farms, is in the form of land, and therefore,
cannot be classified as agricultural activity. Further, that
in fishponds and prawn farms, there are no farmers, nor
farm workers, who till lands, and no agrarian unrest,
and therefore, the constitutionally intended
beneficiaries under Section 4, Art. XIII, 1987
Constitution do not exist in aquaculture.
In their second argument, they contend that R.A.
6657, by including in its coverage, the raising of fish and
aquaculture operations including fishponds and prawn
ponds, treating them as in the same class or
classification as agriculture or farming violates the
equal protection clause of the Constitution and is,
therefore, void. Further, the Constitutional Commission
debates show that the intent of the constitutional
framers is to exclude industrial lands, to which category
lands devoted to aquaculture, fishponds, and fish farms
belong.
Petitioners also claim that Administrative Order
Nos. 8 and 10 issued by the Secretary of the Department
of Agrarian Reform are, likewise, unconstitutional, as
held in Luz Farms, and are therefore void as they
implement the assailed provisions of CARL.
The provisions of CARL being assailed as
unconstitutional are as follows:
(a) Section 3(b) which includes the raising of fish in the
definition of Agricultural, Agricultural Enterprise or
Agricultural Activity. (Underscoring Supplied)
(b) Section 11 which defines commercial farms as
private agricultural lands devoted
to fishponds and prawn ponds x x x. (Underscoring
Supplied)
(c) Section 13 which calls upon petitioner to execute a
production-sharing plan.
(d) Section 16 (d) and 17 which vest on the Department
of Agrarian reform the authority to summarily
determine the just compensation to be paid for lands
covered by the comprehensive Agrarian reform Law.
(e) Section 32 which spells out the production-sharing
plan mentioned in Section 13-
x x x (W)hereby three percent (3%) of the gross sales
from the production of such lands are distributed within
sixty (60) days at the end of the fiscal year as
compensation to regular and other farmworkers in such
lands over and above the compensation they currently
receive: Provided, That these individuals or entities
realize gross sales in excess of five million pesos per
annum unless the DAR, upon proper application,
determines a lower ceiling.
In the event that the individual or entity realizes a
profit, an additional ten percent (10%) of the net profit
after tax shall be distributed to said regular and other
farmworkers within ninety (90) days of the end of the
fiscal year. x x x
While the Court will not hesitate to declare a law
or an act void when confronted squarely with
constitutional issues, neither will it preempt the
Legislative and the Executive branches of the
government in correcting or clarifying, by means of
amendment, said law or act. On February 20, 1995,
Republic Act No. 7881[6] was approved by Congress.
Provisions of said Act pertinent to the assailed
provisions of CARL are the following:
Section 1. Section 3, Paragraph (b) of Republic Act No.
6657 is hereby amended to read as follows:
Sec. 3. Definitions. -- For the purpose of this Act, unless
the context indicates otherwise:
(b) Agriculture, Agricultural Enterprise or Agricultural
Activity means the cultivation of the soil, planting of
crops, growing of fruit trees, including the harvesting of
such farm products and other farm activities and
practices performed by a farmer in conjunction with
such farming operations done by persons whether
natural or juridical.
Sec. 2. Section 10 of Republic Act No. 6657 is hereby
amended to read as follows:
Sec. 10. Exemptions and Exclusions.--
xxx xxx xxx
b) Private lands actually, directly and exclusively used
for prawn farms and fishponds shall be exempt from the
coverage of this Act: Provided, That said prawn farms
and fishponds have not been distributed and Certificate
of Land Ownership Award (CLOA) issued to agrarian
reform beneficiaries under the Comprehensive Agrarian
Reform Program.
In cases where the fishponds or prawn farms have been
subjected to the Comprehensive Agrarian Reform Law,
by voluntary offer to sell, or commercial farms
deferment or notices of compulsory acquisition, a
simple and absolute majority of the actual regular
workers or tenants must consent to the exemption
within one (1) year from the effectivity of this Act. When
the workers or tenants do not agree to this exemption,
the fishponds or prawn farms shall be distributed
46
collectively to the worker-beneficiaries or tenants who
shall form a cooperative or association to manage the
same.
In cases where the fishponds or prawn farms have not
been subjected to the Comprehensive Agrarian Reform
Law, the consent of the farm workers shall no longer be
necessary, however, the provision of Section 32-A hereof
on incentives shall apply.
xxx xxx xxx
Sec. 3. Section 11, paragraph 1 is hereby amended to
read as follows:
Sec. 11. Commercial Farming.-- Commercial Farms,
which are private agricultural lands devoted to salt
beds, fruit farms, orchards, vegetable and cut-flower
farms, and cacao, coffee and rubber plantations, shall be
subject to immediate compulsory acquisition and
distribution after ten (10) years from the effectivity of
this Act. In the case of new farms, the ten-year period
shall begin from the first year of commercial production
and operation, as determined by the DAR. During the
ten-year period, the Government shall initiate steps
necessary to acquire these lands, upon payment of just
compensation for the land and the improvements
thereon, preferably in favor of organized cooperatives or
associations, which shall thereafter manage the said
lands for the workers-beneficiaries.
Sec. 4. There shall be incorporated after Section 32 of
Republic Act No. 6657 a section to read as follows:
Sec. 32-A. Incentives.-- Individuals or entities owning or
operating fishponds and prawn farms are hereby
mandated to execute within six (6) months from the
effectivity of this Act, an incentive plan with their
regular fishpond or prawn farm workers organization, if
any, whereby seven point five percent (7.5%) of their
net profit before tax from the operation of the fishpond
or prawn farms are distributed within sixty (60) days at
the end of the fiscal year as compensation to regular and
other pond workers in such ponds over and above the
compensation they currently receive.
In order to safeguard the right of the regular fishpond or
prawn farm workers under the incentive plan, the books
of the fishpond or prawn owners shall be subject to
periodic audit or inspection by certified public
accountants chosen by the workers.
The foregoing provisions shall not apply to agricultural
lands subsequently converted to fishponds or prawn
farms provided the size of the land converted does not
exceed the retention limit of the landowner.
The above-mentioned provisions of R.A. No. 7881
expressly state that fishponds and prawn farms
are excluded from the coverage of CARL. In view of the
foregoing, the question concerning the constitutionality
of the assailed provisions has become moot and
academic with the passage of R.A. No. 7881.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
MOOTNESS
[G.R. No. 147780. May 10, 2001]
PANFILO LACSON, MICHAEL RAY B. AQUINO and
CESAR O. MANCAO, petitioners, vs.
SECRETARY HERNANDO PEREZ,
P/DIRECTOR LEANDRO MENDOZA, and
P/SR. SUPT. REYNALDO BERROYA,
respondents.
[G.R. No. 147781. May 10, 2001]
MIRIAM DEFENSOR-SANTIAGO, petitioner, vs.
ANGELO REYES, Secretary of National
Defense, et al., respondents.
[G.R. No. 147799. May 10, 2001]
RONALDO A. LUMBAO, petitioner, vs. SECRETARY
HERNANDO PEREZ, GENERAL DIOMEDIO
VILLANUEVA, P/DIR. LEANDRO MENDOZA
and P/SR. SUPT. REYNALDO BERROYA,
respondents.
[G.R. No. 147810. May 10, 2001]
THE LABAN NG DEMOKRATIKONG PILIPINO,
petitioner, vs. THE DEPARTMENT OF
JUSTICE, SECRETARY HERNANDO PEREZ,
THE ARMED FORCES OF THE PHILIPPINES,
GENERAL DIOMEDIO VILLANUEVA, THE
PHILIPPINE NATIONAL POLICE, and
DIRECTOR GENERAL LEANDRO MENDOZA,
respondents.
RESOLUTION
MELO, J.:
On May 1, 2001, President Macapagal-Arroyo, faced by
an angry and violent mob armed with
explosives, firearms, bladed weapons, clubs,
stones and other deadly weapons assaulting
and attempting to break into Malacaang,
issued Proclamation No. 38 declaring that
there was a state of rebellion in the National
Capital Region. She likewise issued General
Order No. 1 directing the Armed Forces of the
Philippines and the Philippine National Police
to suppress the rebellion in the National
Capital Region. Warrantless arrests of several
alleged leaders and promoters of the
rebellion were thereafter effected.
Aggrieved by the warrantless arrests, and the
declaration of a state of rebellion, which
allegedly gave a semblance of legality to the
arrests, the following four related petitions
were filed before the Court-
(1) G.R. No. 147780 for prohibition, injunction,
mandamus, and habeas corpus (with an
urgent application for the issuance of
temporary restraining order and/or writ of
preliminary injunction) filed by Panfilo M.
Lacson, Michael Ray B. Aquino, and Cezar O.
Mancao; (2) G.R. No. 147781 for mandamus
and/or review of the factual basis for the
suspension of the privilege of the writ of
habeas corpus, with prayer for a temporary
restraining order filed by Miriam Defensor-
Santiago; (3) G.R. No. 147799 for prohibition
and injunction with prayer for a writ of
47
 preliminary injunction and/or restraining
order filed by Rolando A. Lumbao; and (4)
G.R. No. 147810 for certiorari and prohibition
filed by the political party Laban ng
Demokratikong Pilipino.
All the foregoing petitions assail the declaration of a
state of rebellion by President Gloria
Macapagal-Arroyo and the warrantless
arrests allegedly effected by virtue thereof, as
having no basis both in fact an in law.
Significantly, on May 6, 2001, President
Macapagal-Arroyo ordered the lifting of the
declaration of a state of rebellion in Metro
Manila. Accordingly, the instant petitions
have been rendered moot and academic. As
to petitioners claim that the proclamation of
a state of rebellion is being used by the
authorities to justify warrantless arrests, the
Secretary of Justice denies that it has issued a
particular order to arrest specific persons in
connection with the rebellion. He states that
what is extant are general instructions to law
enforcement officers and military agencies to
implement Proclamation No. 38. Indeed, as
stated in respondents Joint Comments:
[I]t is already the declared intention of the Justice
Department and police authorities to obtain
regular warrants of arrests from the courts
for all acts committed prior to and until May
1, 2001 which means that preliminary
investigators will henceforth be conducted.
(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p.
18; G.R. No. 147799, p. 16; G.R. No. 147810, p.
24)
With this declaration, petitioners apprehensions as to
warrantless arrests should be laid to rest.
In quelling or suppressing the rebellion, the authorities
may only resort to warrantless arrests of
persons suspected of rebellion, as provided
under Section 5, Rule 113 of the Rules of
Court, if the circumstances so warrant. The
warrantless arrest feared by petitioners is,
thus, not based on the declaration of a state
of rebellion.
Moreover, petitioners contention in G.R. No. 147780
(Lacson Petition), 147781 (Defensor-
Santiago Petition), and 147799 (Lumbao
Petition) that they are under imminent
danger of being arrested without warrant do
not justify their resort to the extraordinary
remedies of mandamus and prohibition, since
an individual subjected to warrantless arrest
is not without adequate remedies in the
ordinary course of law. Such an individual
may ask for a preliminary investigation under
Rule 112 of the Rules of court, where he may
adduce evidence in his defense, or he may
submit himself to inquest proceedings to
determine whether or not he should remain
under custody and correspondingly be
charged in court. Further, a person subject of
a warrantless arrest must be delivered to the
proper judicial authorities within the periods
provided in Article 125 of the Revised Penal
Code, otherwise the arresting officer could be
held liable for delay in the delivery of
detained persons. Should the detention be
without legal ground, the person arrested can
charge the arresting officer with arbitrary
detention. All this is without prejudice to his
filing an action for damages against the
arresting officer under Article 32 of the Civil
Code. Verily, petitioners have a surfeit of
other remedies which they can avail
themselves of, thereby making the prayer for
prohibition and mandamus improper at this
time (Sections 2 and 3, Rule 65, Rules of
Court).
Aside from the foregoing reasons, several
considerations likewise inevitably call for the
dismissal of the petitions at bar.
G.R. No. 147780
In connection with their alleged impending warrantless
arrest, petitioners Lacson, Aquino, and
Mancao pray that the appropriate court
before whom the informations against
petitioners are filed be directed to desist
from arraigning and proceeding with the trial
of the case, until the instant petition is finally
resolved. This relief is clearly premature
considering that as of this date, no
complaints or charges have been filed against
any of the petitioners for any crime. And in
the event that the same are later filed, this
court cannot enjoin criminal prosecution
conducted in accordance with the Rules of
Court, for by that time any arrest would have
been in pursuance of a duly issued warrant.
As regards petitioners prayer that the hold departure
orders issued against them be declared null
and void ab initio, it is to be noted that
petitioners are not directly assailing the
validity of the subject hold departure orders
in their petition. The are not even expressing
intention to leave the country in the near
future. The prayer to set aside the same must
be made in proper proceedings initiated for
that purpose.
Anent petitioners allegations ex abundante ad cautelam
in support of their application for the
issuance of a writ of habeas corpus, it is
manifest that the writ is not called for since
its purpose is to relieve petitioners from
unlawful restraint (Ngaya-an v. Balweg, 200
SCRA 149 [1991]), a matter which remains
speculative up to this very day.
48

G.R. No. 147781
xxx The factual necessity of calling out the armed forces
The petition herein is denominated by petitioner
Defensor-Santiago as one for mandamus. It is
basic in matters relating to petitions for
mandamus that the legal right of the
petitioner to the performance of a particular
act which is sought to be compelled must be
clear and complete. Mandamus will not issue
the right to relief is clear at the time of the
award (Palileo v. Ruiz Castro, 85 Phil. 272).
Up to the present time, petitioner Defensor-
Santiago has not shown that she is in
imminent danger of being arrested without a
warrant. In point of fact, the authorities have
categorically stated that petitioner will not be
arrested without a warrant.
G.R. No. 147799
Hon. Zamora, (G.R. No. 141284, August 15, Petitioner Laban ng Demoktratikong Pilipino is not a
2000): real party-in-interest. The rule requires that a
party must show a personal stake in the
outcome of the case or an injury to himself
that can be redressed by a favorable decision
so as to warrant an invocation of the courts
is not easily quantifiable and cannot be
jurisdiction and to justify the exercise of the
objectively established since matters
courts remedial powers in his behalf (KMU
considered for satisfying the same is a
Labor Center v. Garcia, Jr., 239 SCRA 386
combination of several factors which are not
[1994]). Here, petitioner has not
always accessible to the courts. Besides the
demonstrated any injury to itself which
absence of testual standards that the court
would justify resort to the Court. Petitioner is
may use to judge necessity, information
a juridical person not subject to arrest. Thus,
necessary to arrive at such judgment might
it cannot claim to be threatened by a
also prove unmanageable for the courts.
warrantless arrest. Nor is it alleged that its
Certain pertinent information necessary to
leaders, members, and supporters are being
arrive at such judgment might also prove
threatened with warrantless arrest and
unmanageable for the courts. Certain
detention for the crime of rebellion. Every
pertinent information might be difficult to
action must be brought in the name of the
verify, or wholly unavailable to the courts. In
party whose legal right has been invaded or
many instances, the evidence upon which the
infringed, or whose legal right is under
President might decide that there is a need to
imminent threat of invasion or infringement.
call out the armed forces may be of a nature
not constituting technical proof.

At best, the instant petition may be considered as an

Petitioner Lumbao, leader of the Peoples Movement
against Poverty (PMAP), for his part, argues
that the declaration of a state of rebellion is
violative of the doctrine of separation of
powers, being an encroachment on the
domain of the judiciary which has the
constitutional prerogative to determine or
interpret what took place on May 1, 2001,
and that the declaration of a state of rebellion
cannot be an exception to the general rule on
the allocation of the governmental powers.
We disagree. To be sure, section 18, Article VII of the
Constitution expressly provides that [t]he
President shall be the Commander-in-Chief of
all armed forces of the Philippines and
whenever it becomes necessary, he may call
out such armed forces to prevent or suppress
lawless violence, invasion or rebellion thus,
we held in Integrated Bar of the Philippines v.
On the other hand, the President as Commander-in-
Chief has a vast intelligence network to
gather information, some of which may be
classified as highly confidential or affecting
the security of the state. In the exercise of the
power to call, on-the-spot decisions may be
imperatively necessary in emergency
situations to avert great loss of human lives
and mass destruction of property. xxx
(at pp. 22-23)
The Court, in a proper case, may look into the
sufficiency of the factual basis of the exercise
of this power. However, this is no longer
feasible at this time, Proclamation No. 38
having been lifted.
G.R. No. 147810
action for declaratory relief, petitioner
claiming that its right to freedom of
expression and freedom of assembly is
affected by the declaration of a state of
rebellion and that said proclamation is
invalid for being contrary to the Constitution.
However, to consider the petition as one for declaratory
relief affords little comfort to petitioner, this
Court not having jurisdiction in the first
instance over such a petition. Section 5[1],
Article VIII of the Constitution limits the
original jurisdiction of the Court to cases
affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and
habeas corpus.
WHEREFORE, premises considered, the petitions are
hereby DISMISSED. However, in G.R. No.
147780, 147781, and 147799, respondents,

49
 consistent and congruent with their
undertaking earlier adverted to, together
with their agents, representatives, and all
persons acting for and in their behalf, are
hereby enjoined from arresting petitioners
therein without the required judicial warrant
for all acts committed in relation to or in
connection with the May 1, 2001 siege of
Malacaang.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban,
and Gonzaga-Reyes, JJ., concur.
Vitug, J., see separate opinion.
Kapunan, and Sandoval-Gutierrez, JJ., see dissenting
opinion.
Pardo, J., join the dissent of J. Kapunan.
Quisumbing, Buena, Ynares-Santiago, and De Leon, Jr.,
JJ., on leave.
EXCEPTION TO MOOTNESS
[G.R. No. 147780. May 10, 2001]
PANFILO LACSON, MICHAEL RAY B. AQUINO and
CESAR O. MANCAO, petitioners, vs.
SECRETARY HERNANDO PEREZ,
P/DIRECTOR LEANDRO MENDOZA, and
P/SR. SUPT. REYNALDO BERROYA,
respondents.
[G.R. No. 147781. May 10, 2001]
MIRIAM DEFENSOR-SANTIAGO, petitioner, vs.
ANGELO REYES, Secretary of National
Defense, et al., respondents.
[G.R. No. 147799. May 10, 2001]
RONALDO A. LUMBAO, petitioner, vs. SECRETARY
HERNANDO PEREZ, GENERAL DIOMEDIO
VILLANUEVA, P/DIR. LEANDRO MENDOZA
and P/SR. SUPT. REYNALDO BERROYA,
respondents.
[G.R. No. 147810. May 10, 2001]
THE LABAN NG DEMOKRATIKONG PILIPINO, and injunction with prayer for a writ of
petitioner, vs. THE DEPARTMENT OF JUSTICE, preliminary injunction and/or restraining
SECRETARY HERNANDO PEREZ, THE ARMED FORCES order filed by Rolando A. Lumbao; and (4)
OF THE PHILIPPINES, GENERAL DIOMEDIO G.R. No. 147810 for certiorari and prohibition
VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, filed by the political party Laban ng
and DIRECTOR GENERAL LEANDRO MENDOZA, Demokratikong Pilipino.
respondents.
RESOLUTION
All the foregoing petitions assail the declaration of a
MELO, J.: state of rebellion by President Gloria
Macapagal-Arroyo and the warrantless
arrests allegedly effected by virtue thereof, as
having no basis both in fact an in law.
On May 1, 2001, President Macapagal-Arroyo, faced by
Significantly, on May 6, 2001, President
an angry and violent mob armed with
Macapagal-Arroyo ordered the lifting of the
explosives, firearms, bladed weapons, clubs,
declaration of a state of rebellion in Metro
stones and other deadly weapons assaulting
Manila. Accordingly, the instant petitions
and attempting to break into Malacaang,
have been rendered moot and academic. As
issued Proclamation No. 38 declaring that
to petitioners claim that the proclamation of
there was a state of rebellion in the National
a state of rebellion is being used by the
Capital Region. She likewise issued General
authorities to justify warrantless arrests, the
Order No. 1 directing the Armed Forces of the
Secretary of Justice denies that it has issued a
Philippines and the Philippine National Police
particular order to arrest specific persons in
to suppress the rebellion in the National
connection with the rebellion. He states that
Capital Region. Warrantless arrests of several
what is extant are general instructions to law
alleged leaders and promoters of the
enforcement officers and military agencies to
rebellion were thereafter effected.
implement Proclamation No. 38. Indeed, as
stated in respondents Joint Comments:
Aggrieved by the warrantless arrests, and the
declaration of a state of rebellion, which
[I]t is already the declared intention of the Justice
allegedly gave a semblance of legality to the
Department and police authorities to obtain
arrests, the following four related petitions
regular warrants of arrests from the courts
were filed before the Court-
for all acts committed prior to and until May
1, 2001 which means that preliminary
investigators will henceforth be conducted.
(1) G.R. No. 147780 for prohibition, injunction,
mandamus, and habeas corpus (with an
urgent application for the issuance of
(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p.
temporary restraining order and/or writ of
18; G.R. No. 147799, p. 16; G.R. No. 147810, p.
preliminary injunction) filed by Panfilo M.
24)
Lacson, Michael Ray B. Aquino, and Cezar O.
Mancao; (2) G.R. No. 147781 for mandamus
and/or review of the factual basis for the
suspension of the privilege of the writ of With this declaration, petitioners apprehensions as to
habeas corpus, with prayer for a temporary warrantless arrests should be laid to rest.
restraining order filed by Miriam Defensor-
Santiago; (3) G.R. No. 147799 for prohibition
50
In quelling or suppressing the rebellion, the authorities
may only resort to warrantless arrests of
persons suspected of rebellion, as provided
under Section 5, Rule 113 of the Rules of
Court, if the circumstances so warrant. The
warrantless arrest feared by petitioners is,
thus, not based on the declaration of a state
of rebellion.
Moreover, petitioners contention in G.R. No. 147780
(Lacson Petition), 147781 (Defensor-
Santiago Petition), and 147799 (Lumbao
Petition) that they are under imminent
danger of being arrested without warrant do
not justify their resort to the extraordinary
remedies of mandamus and prohibition, since
an individual subjected to warrantless arrest
is not without adequate remedies in the
ordinary course of law. Such an individual
may ask for a preliminary investigation under
Rule 112 of the Rules of court, where he may
adduce evidence in his defense, or he may
submit himself to inquest proceedings to
determine whether or not he should remain
under custody and correspondingly be
charged in court. Further, a person subject of
a warrantless arrest must be delivered to the
proper judicial authorities within the periods
provided in Article 125 of the Revised Penal
Code, otherwise the arresting officer could be
held liable for delay in the delivery of
detained persons. Should the detention be
without legal ground, the person arrested can
charge the arresting officer with arbitrary
detention. All this is without prejudice to his
filing an action for damages against the
arresting officer under Article 32 of the Civil
Code. Verily, petitioners have a surfeit of
other remedies which they can avail
themselves of, thereby making the prayer for
prohibition and mandamus improper at this
time (Sections 2 and 3, Rule 65, Rules of
Court).
Aside from the foregoing reasons, several
considerations likewise inevitably call for the
dismissal of the petitions at bar.
G.R. No. 147780
In connection with their alleged impending warrantless
arrest, petitioners Lacson, Aquino, and
Mancao pray that the appropriate court
before whom the informations against
petitioners are filed be directed to desist
from arraigning and proceeding with the trial
of the case, until the instant petition is finally
resolved. This relief is clearly premature
considering that as of this date, no
complaints or charges have been filed against
any of the petitioners for any crime. And in
the event that the same are later filed, this
court cannot enjoin criminal prosecution
conducted in accordance with the Rules of
Court, for by that time any arrest would have
been in pursuance of a duly issued warrant.
As regards petitioners prayer that the hold departure
orders issued against them be declared null
and void ab initio, it is to be noted that
petitioners are not directly assailing the
validity of the subject hold departure orders
in their petition. The are not even expressing
intention to leave the country in the near
future. The prayer to set aside the same must
be made in proper proceedings initiated for
that purpose.
Anent petitioners allegations ex abundante ad cautelam
in support of their application for the
issuance of a writ of habeas corpus, it is
manifest that the writ is not called for since
its purpose is to relieve petitioners from
unlawful restraint (Ngaya-an v. Balweg, 200
SCRA 149 [1991]), a matter which remains
speculative up to this very day.
G.R. No. 147781
The petition herein is denominated by petitioner
Defensor-Santiago as one for mandamus. It is
basic in matters relating to petitions for
mandamus that the legal right of the
petitioner to the performance of a particular
act which is sought to be compelled must be
clear and complete. Mandamus will not issue
the right to relief is clear at the time of the
award (Palileo v. Ruiz Castro, 85 Phil. 272).
Up to the present time, petitioner Defensor-
Santiago has not shown that she is in
imminent danger of being arrested without a
warrant. In point of fact, the authorities have
categorically stated that petitioner will not be
arrested without a warrant.
G.R. No. 147799
Petitioner Lumbao, leader of the Peoples Movement
against Poverty (PMAP), for his part, argues
that the declaration of a state of rebellion is
violative of the doctrine of separation of
powers, being an encroachment on the
domain of the judiciary which has the
constitutional prerogative to determine or
interpret what took place on May 1, 2001,
and that the declaration of a state of rebellion
cannot be an exception to the general rule on
the allocation of the governmental powers.
We disagree. To be sure, section 18, Article VII of the
Constitution expressly provides that [t]he
President shall be the Commander-in-Chief of
all armed forces of the Philippines and
whenever it becomes necessary, he may call
out such armed forces to prevent or suppress
lawless violence, invasion or rebellion thus,
we held in Integrated Bar of the Philippines v.
51
 Hon. Zamora, (G.R. No. 141284, August 15,
2000):
xxx The factual necessity of calling out the armed forces
is not easily quantifiable and cannot be
objectively established since matters
considered for satisfying the same is a
combination of several factors which are not
always accessible to the courts. Besides the
absence of testual standards that the court
may use to judge necessity, information
necessary to arrive at such judgment might
also prove unmanageable for the courts.
Certain pertinent information necessary to
arrive at such judgment might also prove
unmanageable for the courts. Certain
pertinent information might be difficult to
verify, or wholly unavailable to the courts. In
many instances, the evidence upon which the
President might decide that there is a need to
call out the armed forces may be of a nature
not constituting technical proof.
On the other hand, the President as Commander-in-
Chief has a vast intelligence network to
gather information, some of which may be
classified as highly confidential or affecting
the security of the state. In the exercise of the
power to call, on-the-spot decisions may be
imperatively necessary in emergency
situations to avert great loss of human lives
and mass destruction of property. xxx
(at pp. 22-23)
The Court, in a proper case, may look into the
sufficiency of the factual basis of the exercise
of this power. However, this is no longer
feasible at this time, Proclamation No. 38
having been lifted.
G.R. No. 147810
Petitioner Laban ng Demoktratikong Pilipino is not a
real party-in-interest. The rule requires that a
party must show a personal stake in the
outcome of the case or an injury to himself
that can be redressed by a favorable decision
so as to warrant an invocation of the courts
jurisdiction and to justify the exercise of the
courts remedial powers in his behalf (KMU
Labor Center v. Garcia, Jr., 239 SCRA 386
[1994]). Here, petitioner has not
demonstrated any injury to itself which
would justify resort to the Court. Petitioner is
a juridical person not subject to arrest. Thus,
it cannot claim to be threatened by a
warrantless arrest. Nor is it alleged that its
leaders, members, and supporters are being
threatened with warrantless arrest and
detention for the crime of rebellion. Every
action must be brought in the name of the
party whose legal right has been invaded or
infringed, or whose legal right is under
imminent threat of invasion or infringement.
At best, the instant petition may be considered as an
action for declaratory relief, petitioner
claiming that its right to freedom of
expression and freedom of assembly is
affected by the declaration of a state of
rebellion and that said proclamation is
invalid for being contrary to the Constitution.
However, to consider the petition as one for declaratory
relief affords little comfort to petitioner, this
Court not having jurisdiction in the first
instance over such a petition. Section 5[1],
Article VIII of the Constitution limits the
original jurisdiction of the Court to cases
affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and
habeas corpus.
WHEREFORE, premises considered, the petitions are
hereby DISMISSED. However, in G.R. No.
147780, 147781, and 147799, respondents,
consistent and congruent with their
undertaking earlier adverted to, together
with their agents, representatives, and all
persons acting for and in their behalf, are
hereby enjoined from arresting petitioners
therein without the required judicial warrant
for all acts committed in relation to or in
connection with the May 1, 2001 siege of
Malacaang.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban,
and Gonzaga-Reyes, JJ., concur
EXCEPTION TO MOOTNESS
EN BANC
[G.R. NO. 164978 October 13, 2005]
AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA,
JUAN PONCE ENRILE, LUISA P. EJERCITO-ESTRADA,
JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO
S. LIM, JAMBY A.S. MADRIGAL, and SERGIO R.
OSMEÑA III, Petitioners v. EXEC. SECRETARY
EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO
J. CRUZ, JR., MICHAEL T. DEFENSOR, JOSEPH H.
DURANO, RAUL M. GONZALEZ, ALBERTO G. ROMULO,
RENE C. VILLA, and ARTHUR C. YAP, Respondents.
DECISION
CARPIO, J.:
The Case
This is a Petition for Certiorari and prohibition1 with a
prayer for the issuance of a writ of preliminary
injunction to declare unconstitutional the appointments
issued by President Gloria Macapagal-Arroyo
("President Arroyo") through Executive Secretary
Eduardo R. Ermita ("Secretary Ermita") to Florencio B.
Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H.
Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C.
52
 Villa, and Arthur C. Yap ("respondents") as acting appointed in an acting capacity. The appointment
secretaries of their respective departments. The petition papers are uniformly worded as follows:
Tourism
also seeks to prohibit respondents from performing the
duties of department secretaries.
Sir:

Antecedent Facts
The Senate and the House of Representatives
("Congress") commenced their regular session on 26
July 2004. The Commission on Appointments, composed
of Senators and Representatives, was constituted on 25
August 2004.
Meanwhile, President Arroyo issued appointments2 to
respondents as acting secretaries of their respective
departments.
Environment and Natural Resources
The appointment papers are uniformly worded as
follows:
Sir:
Pursuant to the provisions of existing laws, you are
hereby appointed ACTING SECRETARY, DEPARTMENT
OF (appropriate department) vice (name of person
replaced).
Pursuant to the provisions of existing laws, you are
hereby appointed SECRETARY [AD INTERIM],
DEPARTMENT OF (appropriate department).
By virtue hereof, you may qualify and enter upon the
performance of the duties and functions of the office,
furnishing this Office and the Civil Service Commission
with copies of your oath of office.
(signed)
Gloria Arroyo

Department
By virtue hereof, you may qualify and enter upon the
performance of the duties and functions of the office,
furnishing this Office and the Civil Service Commission
with copies of your Oath of Office.
Agriculture
(signed)
Issue
The petition questions the constitutionality of President
Arroyo's appointment of respondents as acting
secretaries without the consent of the Commission on
Appointments while Congress is in session.

Foreign Affairs Gloria Arroyo The Court's Ruling

Respondents took their oath of office and assumed
Justice duties as acting secretaries.
On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator
Pimentel"), Edgardo J. Angara ("Senator Angara"), Juan
Education Ponce Enrile ("Senator Enrile"), Luisa P. Ejercito-Estrada
("Senator Ejercito-Estrada"), Jinggoy E. Estrada
("Senator Estrada"), Panfilo M. Lacson ("Senator
Lacson"), Alfredo S. Lim ("Senator Lim"), Jamby A.S.
National Defense Madrigal ("Senator Madrigal"), and Sergio R. OsmeAÃ ±a,
III ("Senator OsmeAÃ ±a") ("petitioners") filed the present
petition as Senators of the Republic of the Philippines.
Agrarian Reform Congress adjourned on 22 September 2004. On 23
September 2004, President Arroyo issued ad
interimappointments3 to respondents as secretaries of
the departments to which they were previously
The petition has no merit.
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot
because President Arroyo had extended to
respondents ad interim appointments on 23 September
2004 immediately after the recess of Congress.
As a rule, the writ of prohibition will not lie to enjoin
acts already done.4 However, as an exception to the rule
on mootness, courts will decide a question otherwise
moot if it is capable of repetition yet evading review. 5

53
In the present case, the mootness of the petition does
not bar its resolution. The question of the
constitutionality of the President's appointment of
department secretaries in an acting capacity while
Congress is in session will arise in every such
appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature,
and the legislature may not interfere with the exercise
of this executive power except in those instances when
the Constitution expressly allows it to
interfere.6 Limitations on the executive power to
appoint are construed strictly against the
legislature.7The scope of the legislature's interference in
the executive's power to appoint is limited to the power
to prescribe the qualifications to an appointive office.
Congress cannot appoint a person to an office in the
guise of prescribing qualifications to that office. Neither
may Congress impose on the President the duty to
appoint any particular person to an office.8
However, even if the Commission on Appointments is
composed of members of Congress, the exercise of its
powers is executive and not legislative. The Commission
on Appointments does not legislate when it exercises its
power to give or withhold consent to presidential
appointments. Thus:
xxx The Commission on Appointments is a creature of
the Constitution. Although its membership is confined
to members of Congress, said Commission is
independent of Congress. The powers of the
Commission do not come from Congress, but emanate
directly from the Constitution. Hence, it is not an agent
of Congress. In fact, the functions of the Commissioner
are purely executive in nature. xxx9
On Petitioners' Standing
The Solicitor General states that the present petition is
a quo warranto proceeding because, with the exception
of Secretary Ermita, petitioners effectively seek to oust
respondents for unlawfully exercising the powers of
department secretaries. The Solicitor General further
states that petitioners may not claim standing as
Senators because no power of the Commission on
Appointments has been "infringed upon or violated by
the President. xxx If at all, the Commission on
Appointments as a body (rather than individual
members of the Congress) may possess standing in this
case."10
Petitioners, on the other hand, state that the Court can
exercise its certiorari jurisdiction over unconstitutional
acts of the President.11 Petitioners further contend that
they possess standing because President Arroyo's
appointment of department secretaries in an acting
capacity while Congress is in session impairs the
powers of Congress. Petitioners cite Sanlakas v.
Executive Secretary12 as basis, thus:
To the extent that the powers of Congress are impaired,
so is the power of each member thereof, since his office
confers a right to participate in the exercise of the
powers of that institution.
An act of the Executive which injures the institution of
Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a
member of Congress. In such a case, any member of
Congress can have a resort to the courts.
Considering the independence of the Commission on
Appointments from Congress, it is error for petitioners
to claim standing in the present case as members of
Congress. President Arroyo's issuance of acting
appointments while Congress is in session impairs no
power of Congress. Among the petitioners, only the
following are members of the Commission on
Appointments of the 13th Congress: Senator Enrile as
Minority Floor Leader, Senator Lacson as Assistant
Minority Floor Leader, and Senator Angara, Senator
Ejercito-Estrada, and Senator OsmeAÃ ±a as members.
Thus, on the impairment of the prerogatives of
members of the Commission on Appointments, only
Senators Enrile, Lacson, Angara, Ejercito-Estrada, and
OsmeAÃ ±a have standing in the present petition. This is
in contrast to Senators Pimentel, Estrada, Lim, and
Madrigal, who, though vigilant in protecting their
perceived prerogatives as members of Congress, possess
no standing in the present petition.
The Constitutionality of President Arroyo's Issuance
of Appointments to Respondents as Acting Secretaries
Petitioners contend that President Arroyo should not
have appointed respondents as acting secretaries
because "in case of a vacancy in the Office of a Secretary,
it is only an Undersecretary who can be designated as
Acting Secretary."13 Petitioners base their argument on
Section 10, Chapter 2, Book IV of Executive Order No.
292 ("EO 292"),14 which enumerates the powers and
duties of the undersecretary. Paragraph 5 of Section 10
reads:
SEC. 10. Powers and Duties of the Undersecretary. - The
Undersecretary shall:
xxx
(5) Temporarily discharge the duties of the Secretary in
the latter's absence or inability to discharge his duties
for any cause or in case of vacancy of the said office,
unless otherwise provided by law. Where there are
more than one Undersecretary, the Secretary shall
allocate the foregoing powers and duties among them.
The President shall likewise make the temporary
designation of Acting Secretary from among them; and
xxx
Petitioners further assert that "while Congress is in
session, there can be no appointments, whether regular
or acting, to a vacant position of an office needing
confirmation by the Commission on Appointments,
without first having obtained its consent."15
In sharp contrast, respondents maintain that the
President can issue appointments in an acting capacity
to department secretaries without the consent of the
Commission on Appointments even while Congress is in
session. Respondents point to Section 16, Article VII of
the 1987 Constitution. Section 16 reads:
54
SEC. 16. The President shall nominate and, with the
consent of the Commission on Appointments, appoint
the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in
him in this Constitution. He shall also appoint all other
officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may
be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank
in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until disapproval
by the Commission on Appointments or until the next
adjournment of the Congress.
Respondents also rely on EO 292, which devotes a
chapter to the President's power of appointment.
Sections 16 and 17, Chapter 5, Title I, Book III of EO 292
read:
SEC. 16. Power of Appointment. - The President shall
exercise the power to appoint such officials as
provided for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. - (1) The
President may temporarily designate an officer
already in the government service or any other
competent person to perform the functions of an
office in the executive branch, appointment to which
is vested in him by law, when: (a) the officer
regularly appointed to the office is unable to
perform his duties by reason of illness, absence or
any other cause; or (b) there exists a vacancy[.]
(2) The person designated shall receive the
compensation attached to the position, unless he is
already in the government service in which case he shall
receive only such additional compensation as, with his
existing salary, shall not exceed the salary authorized by
law for the position filled. The compensation hereby
authorized shall be paid out of the funds appropriated
for the office or agency concerned.
(3) In no case shall a temporary designation exceed
one (1) year. (Emphasis supplied)IÏ‚rIÎ ±lIαIωlIιbrIαrAà ¿
Petitioners and respondents maintain two diametrically
opposed lines of thought. Petitioners assert that the
President cannot issue appointments in an acting
capacity to department secretaries while Congress is in
session because the law does not give the President
such power. In contrast, respondents insist that the
President can issue such appointments because no law
prohibits such appointments.
The essence of an appointment in an acting capacity is
its temporary nature. It is a stop-gap measure intended
to fill an office for a limited time until the appointment
of a permanent occupant to the office.16In case of
vacancy in an office occupied by an alter ego of the
President, such as the office of a department secretary,
the President must necessarily appoint an alter ego of
her choice as acting secretary before the permanent
appointee of her choice could assume office.
Congress, through a law, cannot impose on the
President the obligation to appoint automatically the
undersecretary as her temporary alter ego. An alter ego,
whether temporary or permanent, holds a position of
great trust and confidence. Congress, in the guise of
prescribing qualifications to an office, cannot impose on
the President who her alter ego should be.
The office of a department secretary may become
vacant while Congress is in session. Since a department
secretary is the alter ego of the President, the acting
appointee to the office must necessarily have the
President's confidence. Thus, by the very nature of the
office of a department secretary, the President must
appoint in an acting capacity a person of her choice
even while Congress is in session. That person may or
may not be the permanent appointee, but practical
reasons may make it expedient that the acting
appointee will also be the permanent appointee.
The law expressly allows the President to make such
acting appointment. Section 17, Chapter 5, Title I, Book
III of EO 292 states that "[t]he President may
temporarily designate an officer already in the
government service or any other competent person to
perform the functions of an office in the executive
branch." Thus, the President may even appoint in an
acting capacity a person not yet in the government
service, as long as the President deems that person
competent.
Petitioners assert that Section 17 does not apply to
appointments vested in the President by the
Constitution, because it only applies to appointments
vested in the President by law. Petitioners forget that
Congress is not the only source of law. "Law" refers to
the Constitution, statutes or acts of Congress, municipal
ordinances, implementing rules issued pursuant to law,
and judicial decisions.17
Finally, petitioners claim that the issuance of
appointments in an acting capacity is susceptible to
abuse. Petitioners fail to consider that acting
appointments cannot exceed one year as expressly
provided in Section 17(3), Chapter 5, Title I, Book III of
EO 292. The law has incorporated this safeguard to
prevent abuses, like the use of acting appointments as a
way to circumvent confirmation by the Commission on
Appointments.
In distinguishing ad interim appointments from
appointments in an acting capacity, a noted textbook
writer on constitutional law has observed:
Ad-interim appointments must be distinguished from
appointments in an acting capacity. Both of them are
effective upon acceptance. But ad-interim appointments
are extended only during a recess of Congress, whereas
acting appointments may be extended any time there is
a vacancy. Moreover ad-interim appointments are
submitted to the Commission on Appointments for
confirmation or rejection; acting appointments are not
submitted to the Commission on Appointments. Acting
appointments are a way of temporarily filling important
offices but, if abused, they can also be a way of
circumventing the need for confirmation by the
Commission on Appointments.18
55
However, we find no abuse in the present case. The
absence of abuse is readily apparent from President
Arroyo's issuance of ad interim appointments to
respondents immediately upon the recess of Congress,
way before the lapse of one year.
WHEREFORE, we DISMISS the present Petition
for Certiorari and prohibition.
SO ORDERED.
2. PROPER PARTY
G.R. No. 96541 August 24, 1993
DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL,
ARMIDA SIGUION REYNA, PROF. RICARTE M.
PURUGANAN, IRMA POTENCIANO, ADRIAN
CRISTOBAL, INGRID SANTAMARIA, CORAZON FIEL,
AMBASSADOR E. AGUILAR CRUZ, FLORENCIO R.
JACELA, JR., MAURO MALANG, FEDERICO AGUILAR
ALCUAZ, LUCRECIA R. URTULA, SUSANO GONZALES,
STEVE SANTOS, EPHRAIM SAMSON, SOLER SANTOS,
ANG KIU KOK, KERIMA POLOTAN, LUCRECIA
KASILAG, LIGAYA DAVID PEREZ, VIRGILIO ALMARIO,
LIWAYWAY A. ARCEO, CHARITO PLANAS, HELENA
BENITEZ, ANNA MARIA L. HARPER, ROSALINDA
OROSA, SUSAN CALO MEDINA, PATRICIA RUIZ,
BONNIE RUIZ, NELSON NAVARRO, MANDY
NAVASERO, ROMEO SALVADOR, JOSEPHINE DARANG,
and PAZ VETO PLANAS, petitioners,
vs.
PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT (PCGG), CATALINO MACARAIG, JR., in
his official capacity, and/or the Executive Secretary,
and CHAIRMAN MATEO A.T. CAPARAS, respondents.
M.M. Lazaro & Associates for petitioners.
The Solicitor General for respondents.
BELLOSILLO, J.: On 26 October 1990, the Commission on Audit (COA)
through then Chairman Eufemio C. Domingo submitted
to President Aquino the audit findings and observations
All thirty-five (35) petitioners in this Special Civil Action
of COA on the Consignment Agreement of 15 August
for Prohibition and Mandamus with Prayer for
1990 to the effect that: (a) the authority of former PCGG
Preliminary Injunction and/or Restraining Order seek
Chairman Caparas to enter into the Consignment
to enjoin the Presidential Commission on Good
Agreement was of doubtful legality; (b) the contract was
Government (PCGG) from proceeding with the auction
highly disadvantageous to the government; (c) PCGG
sale scheduled on 11 January 1991 by Christie's of New
had a poor track record in asset disposal by auction in
York of the Old Masters Paintings and 18th and 19th
the U.S.; and, (d) the assets subject of auction were
century silverware seized from Malacanñ ang and the
historical relics and had cultural significance, hence,
Metropolitan Museum of Manila and placed in the
their disposal was prohibited by law. 2
custody of the Central Bank.
On 15 November 1990, PCGG through its new Chairman
The antecedents: On 9 August 1990, Mateo A.T. Caparas,
David M. Castro, wrote President Aquino defending the
then Chairman of PCGG, wrote then President Corazon
Consignment Agreement and refuting the allegations of
C. Aquino, requesting her for authority to sign the
COA Chairman Domingo. 3 On the same date, Director of
proposed Consignment Agreement between the
National Museum Gabriel S. Casal issued a certification
Republic of the Philippines through PCGG and Christie,
that the items subject of the Consignment Agreement
Manson and Woods International, Inc. (Christie's of New
did not fall within the classification of protected cultural
York, or CHRISTIE'S) concerning the scheduled sale on
properties and did not specifically qualify as part of the
11 January 1991 of eighty-two (82) Old Masters
Filipino cultural heritage.4 Hence, this petition originally
Paintings and antique silverware seized from
filed on 7 January 1991 by Dean Jose Joya, Carmen
Malacanñ ang and the Metropolitan Museum of Manila
Guerrero Nakpil, Armida Siguion Reyna, Prof. Ricarte M.
alleged to be part of the ill-gotten wealth of the late
Puruganan, Irma Potenciano, Adrian Cristobal, Ingrid
President Marcos, his relatives and cronies.
Santamaria, Corazon Fiel, Ambassador E. Aguilar Cruz,
Florencio R. Jacela, Jr., Mauro Malang, Federico Aguilar
On 14 August 1990, then President Aquino, through Alcuaz, Lucrecia R. Urtula, Susano Gonzales, Steve
former Executive Secretary Catalino Macaraig, Jr., Santos, Ephraim Samson, Soler Santos, Ang Kiu Kok,
authorized Chairman Caparas to sign the Consignment Kerima Polotan, Lucrecia Kasilag, Ligaya David Perez,
Agreement allowing Christie's of New York to auction Virgilio Almario and Liwayway A. Arceo.
off the subject art pieces for and in behalf of the
Republic of the Philippines.
After the oral arguments of the parties on 9 January
1991, we issued immediately our resolution denying the
On 15 August 1990, PCGG, through Chairman Caparas, application for preliminary injunction to restrain the
representing the Government of the Republic of the scheduled sale of the artworks on the ground that
Philippines, signed the Consignment Agreement with petitioners had not presented a clear legal right to a
Christie's of New York. According to the agreement, restraining order and that proper parties had not been
PCGG shall consign to CHRISTIE'S for sale at public impleaded.
auction the eighty-two (82) Old Masters Paintings then
found at the Metropolitan Museum of Manila as well as
On 11 January 1991, the sale at public auction
the silverware contained in seventy-one (71) cartons in
proceeded as scheduled and the proceeds of
the custody of the Central Bank of the Philippines, and
$13,302,604.86 were turned over to the Bureau of
such other property as may subsequently be identified
Treasury. 5
by PCGG and accepted by CHRISTIE'S to be subject to
the provisions of the agreement. 1
On 5 February 1991, on motion of petitioners, the
following were joined as additional petitioners: Charito
56
Planas, Helena Benitez, Ana Maria L. Harper, Rosalinda
Orosa, Susan Carlo Medina, Patricia Ruiz, Bonnie Ruiz,
Nelson Navarro, Mandy Navasero, Romeo Salvador,
Josephine Darang and Paz Veto Planas.
On the other hand, Catalino Macaraig, Jr., in his capacity
as former Executive Secretary, the incumbent Executive
Secretary, and Chairman Mateo A.T. Caparas were
impleaded as additional respondents.
Petitioners raise the following issues: (a) whether
petitioners have legal standing to file the instant
petition; (b) whether the Old Masters Paintings and
antique silverware are embraced in the phrase "cultural
treasure of the nation" which is under the protection of
the state pursuant to the 1987 Constitution and/or
"cultural properties" contemplated under R.A. 4846,
otherwise known as "The Cultural Properties
Preservation and Protection Act;" (c) whether the
paintings and silverware are properties of public
dominion on which can be disposed of through the joint
concurrence of the President and Congress;
(d) whether respondent, PCGG has the jurisdiction and
authority to enter into an agreement with Christie's of
New York for the sale of the artworks; (e) whether,
PCGG has complied with the due process clause and
other statutory requirements for the exportation and
sale of the subject items; and, (f) whether the petition
has become moot and academic, and if so, whether the
above issues warrant resolution from this Court.
The issues being interrelated, they will be discussed
jointly hereunder. However, before proceeding, we wish
to emphasize that we admire and commend petitioners'
zealous concern to keep and preserve within the
country great works of art by well-known old masters.
Indeed, the value of art cannot be gainsaid. For, by
serving as a creative medium through which man can
express his innermost thoughts and unbridled emotions
while, at the same time, reflecting his deep-seated
ideals, art has become a true expression of beauty, joy,
and life itself. Such artistic creations give us insights into
the artists' cultural heritage — the historic past of the
nation and the era to which they belong — in their
triumphant, glorious, as well as troubled and turbulent
years. It must be for this reason that the framers of the
1987 Constitution mandated in Art. XIV, Sec. 14, that is
the solemn duty of the state to "foster the preservation,
enrichment, and dynamic evolution of a Filipino
national culture based on the principle of unity in
diversity in a climate of free artistic and intellectual
expression." And, in urging this Court to grant their
petition, petitioners invoke this policy of the state on
the protection of the arts.
But, the altruistic and noble purpose of the petition
notwithstanding, there is that basic legal question
which must first be resolved: whether the instant
petition complies with the legal requisites for this Court
to exercise its power of judicial review over this case.
The rule is settled that no question involving the
constitutionality or validity of a law or governmental act
may be heard and decided by the court unless there is
compliance with the legal requisites for judicial inquiry,
namely: that the question must be raised by the proper
party; that there must be an actual case or controversy;
that the question must be raised at the earliest possible
opportunity; and, that the decision on the constitutional
or legal question must be necessary to the
determination of the case itself. 6 But the most
important are the first two (2) requisites.
On the first requisite, we have held that one having no
right or interest to protect cannot invoke the
jurisdiction of the court as party-plaintiff in an
action. 7 This is premised on Sec. 2, Rule 3, of the Rules
of Court which provides that every action must be
prosecuted and defended in the name of the real party-
in-interest, and that all persons having interest in the
subject of the action and in obtaining the relief
demanded shall be joined as plaintiffs. The Court will
exercise its power of judicial review only if the case is
brought before it by a party who has the legal standing
to raise the constitutional or legal question. "Legal
standing" means 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 term "interest" is material
interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the
question involved, or a mere incidental
interest. 8 Moreover, the interest of the party plaintiff
must be personal and not one based on a desire to
vindicate the constitutional right of some third and
related party. 9
There are certain instances however when this Court
has allowed exceptions to the rule on legal standing, as
when a citizen brings a case for mandamus to procure
the enforcement of a public duty for the fulfillment of a
public right recognized by the Constitution, 10 and when
a taxpayer questions the validity of a governmental act
authorizing the disbursement of public funds. 11
Petitioners claim that as Filipino citizens, taxpayers and
artists deeply concerned with the preservation and
protection of the country's artistic wealth, they have the
legal personality to restrain respondents Executive
Secretary and PCGG from acting contrary to their public
duty to conserve the artistic creations as mandated by
the 1987 Constitution, particularly Art. XIV, Secs. 14 to
18, on Arts and Culture, and R.A. 4846 known as "The
Cultural Properties Preservation and Protection Act,"
governing the preservation and disposition of national
and important cultural properties. Petitioners also
anchor their case on the premise that the paintings and
silverware are public properties collectively owned by
them and by the people in general to view and enjoy as
great works of art. They allege that with the
unauthorized act of PCGG in selling the art pieces,
petitioners have been deprived of their right to public
property without due process of law in violation of the
Constitution. 12
Petitioners' arguments are devoid of merit. They lack
basis in fact and in law. They themselves allege that the
paintings were donated by private persons from
different parts of the world to the Metropolitan Museum
of Manila Foundation, which is a non-profit and non-
stock corporations established to promote non-
Philippine arts. The foundation's chairman was former
First Lady Imelda R. Marcos, while its president was
Bienvenido R. Tantoco. On this basis, the ownership of
these paintings legally belongs to the foundation or
corporation or the members thereof, although the
public has been given the opportunity to view and
appreciate these paintings when they were placed on
exhibit.
Similarly, as alleged in the petition, the pieces of antique
silverware were given to the Marcos couple as gifts from
friends and dignitaries from foreign countries on their
silver wedding and anniversary, an occasion personal to
them. When the Marcos administration was toppled by
57
the revolutionary government, these paintings and
silverware were taken from Malacanñ ang and the
Metropolitan Museum of Manila and transferred to the
Central Bank Museum. The confiscation of these
properties by the Aquino administration however
should not be understood to mean that the ownership
of these paintings has automatically passed on the
government without complying with constitutional and
statutory requirements of due process and just
compensation. If these properties were already
acquired by the government, any constitutional or
statutory defect in their acquisition and their
subsequent disposition must be raised only by the
proper parties — the true owners thereof — whose
authority to recover emanates from their proprietary
rights which are protected by statutes and the
Constitution. Having failed to show that they are the
legal owners of the artworks or that the valued pieces
have become publicly owned, petitioners do not possess
any clear legal right whatsoever to question their
alleged unauthorized disposition.
Further, although this action is also one of mandamus
filed by concerned citizens, it does not fulfill the criteria
for a mandamus suit. In Legaspi v. Civil Service
Commission, 13 this Court laid down the rule that a writ
of mandamus may be issued to a citizen only when the
public right to be enforced and the concomitant duty of
the state are unequivocably set forth in the Constitution.
In the case at bar, petitioners are not after the
fulfillment of a positive duty required of respondent
officials under the 1987 Constitution. What they seek is
the enjoining of an official act because it is
constitutionally infirmed. Moreover, petitioners' claim
for the continued enjoyment and appreciation by the
public of the artworks is at most a privilege and is
unenforceable as a constitutional right in this action for
mandamus.
Neither can this petition be allowed as a taxpayer's suit.
Not every action filed by a taxpayer can qualify to
challenge the legality of official acts done by the
government. A taxpayer's suit can prosper only if the
governmental acts being questioned involve
disbursement of public funds upon the theory that the
expenditure of public funds by an officer of the state for
the purpose of administering an unconstitutional act
constitutes a misapplication of such funds, which may
be enjoined at the request of a taxpayer. 14 Obviously, the important cultural properties and national cultural
petitioners are not challenging any expenditure treasures of the nation and to safeguard their intrinsic
involving public funds but the disposition of what they value. As to what kind of artistic and cultural properties
allege to be public properties. It is worthy to note that are considered by the State as involving public interest
petitioners admit that the paintings and antique which should therefore be protected, the answer can be
silverware were acquired from private sources and not gleaned from reading of the reasons behind the
with public money. enactment of R.A. 4846:
Anent the second requisite of actual controversy, WHEREAS, the National Museum
petitioners argue that this case should be resolved by has the difficult task, under
this Court as an exception to the rule on moot and existing laws and regulations, of
academic cases; that although the sale of the paintings preserving and protecting the
and silver has long been consummated and the cultural properties of the nation;
possibility of retrieving the treasure trove is nil, yet the
novelty and importance of the issues raised by the
WHEREAS, inumerable sites all
petition deserve this Court's attention. They submit that
over the country have since been
the resolution by the Court of the issues in this case will
excavated for cultural relics, which
establish future guiding principles and doctrines on the
have passed on to private hands,
preservation of the nation's priceless artistic and
representing priceless cultural
cultural possessions for the benefit of the public as a
treasure that properly belongs to
whole. 15
the Filipino people as their
heritage;
For a court to exercise its power of adjudication, there
must be an actual case of controversy — one which
WHEREAS, it is perhaps
involves a conflict of legal rights, an assertion of
impossible now to find an area in
opposite legal claims susceptible of judicial resolution;
the Philippines, whether
the case must not be moot or academic or based on
government or private property,
extra-legal or other similar considerations not
which has not been disturbed by
cognizable by a court of justice. 16 A case becomes moot
commercially-minded diggers and
and academic when its purpose has become
collectors, literally destroying part
stale, 17 such as the case before us. Since the purpose of
of our historic past;
this petition for prohibition is to enjoin respondent
public officials from holding the auction sale of the
artworks on a particular date — 11 January 1991 — WHEREAS, because of this the
which is long past, the issues raised in the petition have Philippines has been charged as
become moot and academic. incapable of preserving and
protecting her cultural legacies;
At this point, however, we need to emphasize that this
Court has the discretion to take cognizance of a suit WHEREAS, the commercialization
which does not satisfy the requirements of an actual of Philippine relics from the contact
case or legal standing when paramount public interest period, the Neolithic Age, and the
is involved. 18We find however that there is no such Paleolithic Age, has reached a point
justification in the petition at bar to warrant the perilously placing beyond reach of
relaxation of the rule. savants the study and
reconstruction of Philippine
prehistory; and
Section 2 of R.A. 4846, as amended by P.D. 374, declares
it to be the policy of the state to preserve and protect
58
 WHEREAS, it is believed that more
stringent regulation on movement
and a limited form of registration
of important cultural properties
and of designated national cultural
treasures is necessary, and that
regardless of the item, any cultural
property exported or sold locally
must be registered with the
National Museum to control the
deplorable situation regarding our
national cultural properties and to
implement the Cultural Properties
Law (emphasis supplied).
Clearly, the cultural properties of the nation which shall
be under the protection of the state are classified as the
"important cultural properties" and the "national
cultural treasures." "Important cultural properties" are
cultural properties which have been singled out from
among the innumerable cultural properties as having
exceptional historical cultural significance to the
Philippines but are not sufficiently outstanding to merit
the classification of national cultural treasures. 19 On the
other hand, a "national cultural treasures" is a unique
object found locally, possessing outstanding historical,
cultural, artistic and/or scientific value which is highly
significant and important to this country and
nation. 20 This Court takes note of the certification
issued by the Director of the Museum that the Italian
paintings and silverware subject of this petition do not
constitute protected cultural properties and are not
among those listed in the Cultural Properties Register of
the National Museum.
We agree with the certification of the Director of the
Museum. Under the law, it is the Director of the Museum
who is authorized to undertake the inventory,
registration, designation or classification, with the aid of
competent experts, of important cultural properties and
national cultural treasures. 21 Findings of administrative
officials and agencies who have acquired expertise
because their jurisdiction is confined to specific matters
are generally accorded not only respect but at times
even finality if such findings are supported by
substantial evidence and are controlling on the
reviewing authorities because of their acknowledged
expertise in the fields of specialization to which they are
assigned. 22
In view of the foregoing, this Court finds no compelling
reason to grant the petition. Petitioners have failed to
show that respondents Executive Secretary and PCGG
exercised their functions with grave abuse of discretion
or in excess of their jurisdiction.
WHEREFORE, for lack of merit, the petition for
prohibition and mandamus is DISMISSED.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino,
Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason,
Puno and Vitug, JJ., concur.
2. PROPER PARTY
[G.R. No. 155001. May 5, 2003]
DEMOSTHENES P. AGAN, JR., JOSEPH B. CATAHAN,
JOSE MARI B. REUNILLA, MANUEL
ANTONIO B. BOE, MAMERTO S. CLARA,
REUEL E. DIMALANTA, MORY V.
DOMALAON, CONRADO G. DIMAANO,
LOLITA R. HIZON, REMEDIOS P. ADOLFO,
BIENVENIDO C. HILARIO, MIASCOR
WORKERS UNION - NATIONAL LABOR
UNION (MWU-NLU), and PHILIPPINE
AIRLINES EMPLOYEES ASSOCIATION
(PALEA), petitioners, vs. PHILIPPINE
INTERNATIONAL AIR TERMINALS CO., INC.,
MANILA INTERNATIONAL AIRPORT
AUTHORITY, DEPARTMENT OF
TRANSPORTATION AND
COMMUNICATIONS and SECRETARY
LEANDRO M. MENDOZA, in his capacity as
Head of the Department of Transportation
and Communications, respondents,
MIASCOR GROUNDHANDLING CORPORATION,
DNATA-WINGS AVIATION SYSTEMS
CORPORATION, MACROASIA-EUREST
SERVICES, INC., MACROASIA-MENZIES
AIRPORT SERVICES CORPORATION,
MIASCOR CATERING SERVICES
CORPORATION, MIASCOR AIRCRAFT
MAINTENANCE CORPORATION, and
MIASCOR LOGISTICS
CORPORATION,petitioners-in-intervention,
[G.R. No. 155547. May 5, 2003]
SALACNIB F. BATERINA, CLAVEL A. MARTINEZ and
CONSTANTINO G. JARAULA, petitioners,
vs. PHILIPPINE INTERNATIONAL AIR
TERMINALS CO., INC., MANILA
INTERNATIONAL AIRPORT AUTHORITY,
DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS, DEPARTMENT OF
PUBLIC WORKS AND HIGHWAYS,
SECRETARY LEANDRO M. MENDOZA, in his
capacity as Head of the Department of
Transportation and Communications, and
SECRETARY SIMEON A. DATUMANONG, in
his capacity as Head of the Department of
Public Works and Highways, respondents,
JACINTO V. PARAS, RAFAEL P. NANTES, EDUARDO C.
ZIALCITA, WILLY BUYSON VILLARAMA,
PROSPERO C. NOGRALES, PROSPERO A.
PICHAY, JR., HARLIN CAST ABAYON, and
BENASING O. MACARANBON, respondents-
intervenors,
[G.R. No. 155661. May 5, 2003]
CEFERINO C. LOPEZ, RAMON M. SALES, ALFREDO B.
VALENCIA, MA. TERESA V. GAERLAN,
LEONARDO DE LA ROSA, DINA C. DE LEON,
VIRGIE CATAMIN RONALD SCHLOBOM,
ANGELITO SANTOS, MA. LUISA M. PALCON
59
 and SAMAHANG MANGGAGAWA SA
PALIPARAN NG PILIPINAS
(SMPP), petitioners, vs. PHILIPPINE
INTERNATIONAL AIR TERMINALS CO., INC.,
MANILA INTERNATIONAL AIRPORT
AUTHORITY, DEPARTMENT OF
TRANSPORTATION AND
COMMUNICATIONS, SECRETARY LEANDRO
M. MENDOZA, in his capacity as Head of
the Department of Transportation and
Communications,respondents.
DECISION
PUNO, J.:
Petitioners and petitioners-in-intervention filed
the instant petitions for prohibition under Rule 65 of
the Revised Rules of Court seeking to prohibit the
Manila International Airport Authority (MIAA) and the
Department of Transportation and Communications
(DOTC) and its Secretary from implementing the
following agreements executed by the Philippine
Government through the DOTC and the MIAA and the
Philippine International Air Terminals Co., Inc.
(PIATCO): (1) the Concession Agreement signed on July
12, 1997, (2) the Amended and Restated Concession
Agreement dated November 26, 1999, (3) the First
Supplement to the Amended and Restated Concession
Agreement dated August 27, 1999, (4) the Second
Supplement to the Amended and Restated Concession
Agreement dated September 4, 2000, and (5) the Third
Supplement to the Amended and Restated Concession
Agreement dated June 22, 2001 (collectively, the PIATCO
Contracts).
The facts are as follows:
In August 1989, the DOTC engaged the services of
Aeroport de Paris (ADP) to conduct a comprehensive
study of the Ninoy Aquino International Airport (NAIA)
and determine whether the present airport can cope
with the traffic development up to the year 2010. The
study consisted of two parts: first, traffic forecasts,
capacity of existing facilities, NAIA future requirements,
proposed master plans and development plans; and
second, presentation of the preliminary design of the
passenger terminal building. The ADP submitted a Draft
Final Report to the DOTC in December 1989.
Some time in 1993, six business leaders
consisting of John Gokongwei, Andrew Gotianun, Henry
Sy, Sr., Lucio Tan, George Ty and Alfonso Yuchengco met
with then President Fidel V. Ramos to explore the
possibility of investing in the construction and
operation of a new international airport terminal. To
signify their commitment to pursue the project, they
formed the Asias Emerging Dragon Corp. (AEDC) which
was registered with the Securities and Exchange
Commission (SEC) on September 15, 1993.
On October 5, 1994, AEDC submitted an
unsolicited proposal to the Government through the
DOTC/MIAA for the development of NAIA International
Passenger Terminal III (NAIA IPT III) under a build-
operate-and-transfer arrangement pursuant to RA 6957
as amended by RA 7718 (BOT Law).[1]
On December 2, 1994, the DOTC issued Dept.
Order No. 94-832 constituting the Prequalification Bids
and Awards Committee (PBAC) for the implementation
of the NAIA IPT III project.
On March 27, 1995, then DOTC Secretary Jose
Garcia endorsed the proposal of AEDC to the National
Economic and Development Authority (NEDA). A
revised proposal, however, was forwarded by the DOTC
to NEDA on December 13, 1995. On January 5, 1996, the
NEDA Investment Coordinating Council(NEDA
ICC) Technical Board favorably endorsed the project to
the ICC Cabinet Committee which approved the same,
subject to certain conditions, on January 19, 1996. On
February 13, 1996, the NEDA passed Board Resolution
No. 2 which approved the NAIA IPT III project.
On June 7, 14, and 21, 1996, DOTC/MIAA caused
the publication in two daily newspapers of an invitation
for competitive or comparative proposals on AEDCs
unsolicited proposal, in accordance with Sec. 4-A of RA
6957, as amended.
2. PROPER PARTY
[G.R. No. 155336. November 25, 2004]
COMMISSION ON HUMAN RIGHTS EMPLOYEES
ASSOCIATION (CHREA) Represented by its
President, MARCIAL A. SANCHEZ,
JR., petitioner, vs. COMMISSION ON HUMAN
RIGHTS, respondent.
DECISION
CHICO-NAZARIO, J.:
Can the Commission on Human Rights lawfully
implement an upgrading and reclassification of
personnel positions without the prior approval of the
Department of Budget and Management?
Before this Court is a petition for review filed by
petitioner Commission on Human Rights Employees
Association (CHREA) challenging the Decision[1]dated
29 November 2001 of the Court of Appeals in CA-G.R. SP
No. 59678 affirming the Resolutions[2] dated 16
December 1999 and 09 June 2000 of the Civil Service
Commission (CSC), which sustained the validity of the
upgrading and reclassification of certain personnel
positions in the Commission on Human Rights (CHR)
despite the disapproval thereof by the Department of
Budget and Management (DBM). Also assailed is the
resolution dated 11 September 2002 of the Court of
Appeals denying the motion for reconsideration filed by
petitioner.
The antecedent facts which spawned the present
controversy are as follows:
On 14 February 1998, Congress passed Republic
Act No. 8522, otherwise known as the General
Appropriations Act of 1998. It provided for Special
Provisions Applicable to All Constitutional Offices
Enjoying Fiscal Autonomy. The last portion of Article
XXXIII covers the appropriations of the CHR. These
special provisions state:
1. Organizational Structure. Any provision of law to the
contrary notwithstanding and within the limits of their
respective appropriations as authorized in this Act, the
Constitutional Commissions and Offices enjoying fiscal
autonomy are authorized to formulate and implement
the organizational structures of their respective offices, to
fix and determine the salaries, allowances, and other
benefits of their personnel, and whenever public interest
so requires, make adjustments in their personal services
itemization including, but not limited to, the transfer of
item or creation of new positions in their respective
offices: PROVIDED, That officers and employees whose
positions are affected by such reorganization or
adjustments shall be granted retirement gratuities and
60
separation pay in accordance with existing laws, which shall be payable from any unexpanded balance of, or support the implementation of this resolution effective
shall be payable from any unexpended balance of, savings in the appropriations of their respective offices; Calendar Year 1998;
or savings in the appropriations of their respective
offices: PROVIDED, FURTHER, That the implementation
WHEREAS, the Commission on Human Rights is a Let the Human Resources Development Division
hereof shall be in accordance with salary rates,
member of the Constitutional Fiscal Autonomy Group (HRDD) prepare the necessary Notice of Salary
allowances and other benefits authorized under
(CFAG) and on July 24, 1998, CFAG passed an approved Adjustment and other appropriate documents to
compensation standardization laws.
Joint Resolution No. 49 adopting internal rules implement this resolution; . . . .[3] (Emphasis supplied)
implementing the special provisions heretoforth
2. Use of Savings. The Constitutional Commissions and mentioned;
Annexed to said resolution is the proposed
Offices enjoying fiscal autonomy are hereby authorized
creation of ten additional plantilla positions, namely:
to use savings in their respective appropriations for: (a)
NOW THEREFORE, the Commission by virtue of its fiscal one Director IV position, with Salary Grade 28 for the
printing and/or publication of decisions, resolutions,
autonomy hereby approves and authorizes the upgrading Caraga Regional Office, four Security Officer II with
and training information materials; (b) repair,
and augmentation of the commensurate amount Salary Grade 15, and five Process Servers, with Salary
maintenance and improvement of central and regional
generated from savings under Personal Services to Grade 5 under the Office of the Commissioners. [4]
offices, facilities and equipment; (c) purchase of books,
journals, periodicals and equipment; (d) necessary On 19 October 1998, CHR issued
expenses for the employment of temporary, contractual Number Total Salary Resolution No. A98-055[5] providing for the
and casual employees; (e) payment of extraordinary and of Position Salary Requirements
Grade upgrading or raising of salary grades of the
miscellaneous expenses, commutable representation Positions following positions in the Commission:
and transportation allowances, and fringe benefits for Title
their officials and employees as may be authorized by
law; and (f) other official purposes, subject to accounting
and auditing rules and regulations. (Emphases supplied)
From To From To
On the strength of these special provisions, the
CHR, through its then Chairperson Aurora P. Navarette-
Recia and Commissioners Nasser A. Marohomsalic,
Mercedes V. Contreras, Vicente P. Sibulo, and Jorge R. 12 Attorney VI (In Director IV 26 28 P229,104.00
Coquia, promulgated Resolution No. A98-047 on 04 the Regional
September 1998, adopting an upgrading and Field Offices)
reclassification scheme among selected positions in the
Commission, to wit:
Director IV
4 Director III 27 28 38,928.00
WHEREAS, the General Appropriations Act, FY 1998,
R.A. No. 8522 has provided special provisions applicable
to all Constitutional Offices enjoying Fiscal Autonomy,
particularly on organizational structures and authorizes Financial & Director IV
1 Managemen 24 28 36,744.00
the same to formulate and implement the organizational
structures of their respective offices to fix and t Officer II
determine the salaries, allowances and other benefits of
their personnel and whenever public interest so Budget Budget
requires, make adjustments in the personnel services 1 Officer III Officer IV 18 24 51,756.00
itemization including, but not limited to, the transfer of
item or creation of new positions in their respective
offices: PROVIDED, That officers and employees whose It, likewise, provided for the creation and
Accountant Chief upgrading of the following positions:
positions are affected by such reorganization or 1 18 24 51,756.00
III Accountant
adjustments shall be granted retirement gratuities and
separation pay in accordance with existing laws, which
Cashier III Cashier V
1 18 24 51,756.00
61

Information Director IV
1 Officer V 24 28 36,744.00[6]
 B. Upgrading As represented, President Ramos then issued a
Memorandum to the DBM Secretary dated 10 December
1997, directing the latter to increase the number of
To support the implementation of such scheme, the
Plantilla positions in the CHR both Central and Regional
CHR, in the same resolution, authorized the
Offices to implement the Philippine Decade Plan on
augmentation of a commensurate amount generated
Human Rights Education, the Philippine Human Rights
from savings under Personnel Services.
Plan and Barangay Rights Actions Center in accordance
with existing laws. (Emphasis in the original)
By virtue of Resolution No. A98-062 dated 17
November 1998, the CHR collapsed the vacant positions
Pursuant to Section 78 of the General Provisions of the
in the body to provide additional source of funding for
General Appropriations Act (GAA) FY 1998, no
said staffing modification. Among the positions
organizational unit or changes in key positions shall be
collapsed were: one Attorney III, four Attorney IV, one
authorized unless provided by law or directed by the
Chemist III, three Special Investigator I, one Clerk III,
President, thus, the creation of a Finance Management
and one Accounting Clerk II.[8]
Office and a Public Affairs Office cannot be given
The CHR forwarded said staffing modification and favorable recommendation.
upgrading scheme to the DBM with a request for its
approval, but the then DBM secretary Benjamin Diokno Moreover, as provided under Section 2 of RA No. 6758,
denied the request on the following justification: otherwise known as the Compensation Standardization
Law, the Department of Budget and Management is
Based on the evaluations made the request was not directed to establish and administer a unified
favorably considered as it effectively involved the compensation and position classification system in the
elevation of the field units from divisions to services. government. The Supreme Court ruled in the case of
Victorina Cruz vs. Court of Appeals, G.R. No. 119155,
dated January 30, 1996, that this Department has the
The present proposal seeks further to upgrade the sole power and discretion to administer the
twelve (12) positions of Attorney VI, SG-26 to Director compensation and position classification system of the
A. Creation IV, SG-28. This would elevate the field units to a bureau National Government.
or regional office, a level even higher than the one
previously denied.
Number Position Title Salary Total Salary Being a member of the fiscal autonomy group does not
ofNumber of Grade Requirements vest the agency with the authority to reclassify, upgrade,
Positions
Positions Position Title Salary Total Salary The request to upgrade the three (3) positions of and create positions without approval of the DBM. While
Grade Requirements Director III, SG-27 to Director IV, SG-28, in the Central the members of the Group are authorized to formulate
Office in effect would elevate the services to Office and and implement the organizational structures of their
change the context from support to substantive without respective offices and determine the compensation of
From Security
To Officer II From To actual change in functions. their personnel, such authority is not absolute and must
4 (Coterminous) 15 684,780.00 be exercised within the parameters of the Unified Position
In the absence of a specific provision of law which may Classification and Compensation System established
be used as a legal basis to elevate the level of divisions under RA 6758 more popularly known as the
1 Attorney Director 25 28 P28,092.00 to a bureau or regional office, and the services to offices, Compensation Standardization Law. We therefore
V IV we reiterate our previous stand denying the upgrading reiterate our previous stand on the matter.[9] (Emphases
of the twelve (12) positions of Attorney VI, SG-26 to supplied)
Director III, SG-27 or Director IV, SG-28, in the Field
Security Operations Office (FOO) and three (3) Director III, SG-27 In light of the DBMs disapproval of the proposed
2 Security Officer 11 15 57,456.00 to Director IV, SG-28 in the Central Office. personnel modification scheme, the CSC-National
Officer I II Capital Region Office, through a memorandum dated 29
March 1999, recommended to the CSC-Central Office

------------------
62

Total 3 P 85,548.00[7]
that the subject appointments be rejected owing to the
DBMs disapproval of the plantilla reclassification.
Meanwhile, the officers of petitioner CHREA, in
representation of the rank and file employees of the
CHR, requested the CSC-Central Office to affirm the
recommendation of the CSC-Regional Office. CHREA
stood its ground in saying that the DBM is the only
agency with appropriate authority mandated by law to
evaluate and approve matters of reclassification and
upgrading, as well as creation of positions.
The CSC-Central Office denied CHREAs request in
a Resolution dated 16 December 1999, and reversed the
recommendation of the CSC-Regional Office that the
upgrading scheme be censured. The decretal portion of
which reads:
WHEREFORE, the request of Ronnie N. Rosero, Hubert V.
Ruiz, Flordeliza A. Briones, George Q. Dumlao [and],
Corazon A. Santos-Tiu, is hereby denied.[10]
CHREA filed a motion for reconsideration, but the
CSC-Central Office denied the same on 09 June 2000.
Given the cacophony of judgments between the
DBM and the CSC, petitioner CHREA elevated the matter
to the Court of Appeals. The Court of Appeals affirmed
the pronouncement of the CSC-Central Office and
upheld the validity of the upgrading, retitling, and
reclassification scheme in the CHR on the justification
that such action is within the ambit of CHRs fiscal
autonomy. The fallo of the Court of Appeals decision
provides:
IN VIEW OF ALL THE FOREGOING, the instant petition
is ordered DISMISSED and the questioned Civil Service
Commission Resolution No. 99-2800 dated December
16, 1999 as well as No. 001354 dated June 9, 2000, are
hereby AFFIRMED. No cost.[11]
Unperturbed, petitioner filed this petition in this
Court contending that:
A.
THE COURT OF APPEALS GRAVELY ERRED WHEN IT
HELD THAT UNDER THE 1987 CONSTITUTION, THE
COMMISSION ON HUMAN RIGHTS ENJOYS FISCAL
AUTONOMY.
B.
THE COURT OF APPEALS SERIOUSLY ERRED IN
UPHOLDING THE CONSTRUCTION OF THE
COMMISSION ON HUMAN RIGHTS OF REPUBLIC ACT
NO. 8522 (THE GENERAL APPROPRIATIONS ACT FOR
THE FISCAL YEAR 1998) DESPITE ITS BEING IN SHARP
CONFLICT WITH THE 1987 CONSTITUTION AND THE
STATUTE ITSELF.
C.
THE COURT OF APPEALS SERIOUSLY AND GRAVELY
ERRED IN AFFIRMING THE VALIDITY OF THE CIVIL
SERVICE COMMISSION RESOLUTION NOS. 992800 AND
001354 AS WELL AS THAT OF THE OPINION OF THE
DEPARTMENT OF JUSTICE IN STATING THAT THE
COMMISSION ON HUMAN RIGHTS ENJOYS FISCAL
AUTONOMY UNDER THE 1987 CONSTITUTION AND
THAT THIS FISCAL AUTONOMY INCLUDES THE ACTION
TAKEN BY IT IN COLLAPSING, UPGRADING AND
RECLASSIFICATION OF POSITIONS THEREIN.[12]
The central question we must answer in order to
resolve this case is: Can the Commission on Human
Rights validly implement an upgrading, reclassification,
creation, and collapsing of plantilla positions in the
Commission without the prior approval of the
Department of Budget and Management?
Petitioner CHREA grouses that the Court of
Appeals and the CSC-Central Office both erred in
sanctioning the CHRs alleged blanket authority to
upgrade, reclassify, and create positions inasmuch as
the approval of the DBM relative to such scheme is still
indispensable. Petitioner bewails that the CSC and the
Court of Appeals erroneously assumed that CHR enjoys
fiscal autonomy insofar as financial matters are
concerned, particularly with regard to the upgrading
and reclassification of positions therein.
Respondent CHR sharply retorts that petitioner
has no locus standi considering that there exists no
official written record in the Commission recognizing
petitioner as a bona fide organization of its employees
nor is there anything in the records to show that its
president, Marcial A. Sanchez, Jr., has the authority to
sue the CHR. The CHR contends that it has the authority
to cause the upgrading,
reclassification, plantilla creation, and collapsing
scheme sans the approval of the DBM because it enjoys
fiscal autonomy.
After a thorough consideration of the arguments
of both parties and an assiduous scrutiny of the records
in the case at bar, it is the Courts opinion that the
present petition is imbued with merit.
On petitioners personality to bring this suit, we
held in a multitude of cases that a proper party is one
who has sustained or is in immediate danger of
sustaining an injury as a result of the act complained of.
[13]
Here, petitioner, which consists of rank and file
employees of respondent CHR, protests that the
upgrading and collapsing of positions benefited only a
select few in the upper level positions in the
Commission resulting to the demoralization of the rank
and file employees. This sufficiently meets the injury
test. Indeed, the CHRs upgrading scheme, if found to be
valid, potentially entails eating up the Commissions
savings or that portion of its budgetary pie otherwise
allocated for Personnel Services, from which the
benefits of the employees, including those in the rank
and file, are derived.
Further, the personality of petitioner to file this
case was recognized by the CSC when it took cognizance
of the CHREAs request to affirm the recommendation of
the CSC-National Capital Region Office. CHREAs
personality to bring the suit was a non-issue in the
Court of Appeals when it passed upon the merits of this
case. Thus, neither should our hands be tied by this
technical concern. Indeed, it is settled jurisprudence
that an issue that was neither raised in the complaint
nor in the court below cannot be raised for the first time
on appeal, as to do so would be offensive to the basic
rules of fair play, justice, and due process.[14]
We now delve into the main issue of whether or
not the approval by the DBM is a condition precedent to
the enactment of an upgrading, reclassification, creation
and collapsing of plantilla positions in the CHR.
63
 Germane to our discussion is Rep. Act No.
6758, An Act Prescribing a Revised Compensation and
Position Classification System in the Government and For
Other Purposes, or the Salary Standardization Law, dated
01 July 1989, which provides in Sections 2 and 4 thereof
that it is the DBM that shall establishand administer a
unified Compensation and Position Classification
System. Thus:
SEC. 2. Statement of Policy. -- It is hereby declared the
policy of the State to provide equal pay for substantially
equal work and to base differences in pay upon
substantive differences in duties and responsibilities,
and qualification requirements of the positions. In
determining rates of pay, due regard shall be given to,
among others, prevailing rates in the private sector for
comparable work. For this purpose, the Department of
Budget and Management (DBM) is hereby directed to
establish and administer a unified Compensation and
Position Classification System, hereinafter referred to as
the System as provided for in Presidential Decree No. 985,
as amended, that shall be applied for all government
entities, as mandated by the Constitution. (Emphasis
supplied.)
SEC. 4. Coverage. The Compensation and Position
Classification System herein provided shall apply to all
positions, appointive or elective, on full or part-time
basis, now existing or hereafter created in the
government, including government-owned or controlled
corporations and government financial institutions.
The term government refers to the Executive, the
Legislative and the Judicial Branches and the
Constitutional Commissions and shall include all, but
shall not be limited to, departments, bureaus, offices,
boards, commissions, courts, tribunals, councils,
authorities, administrations, centers, institutes, state
colleges and universities, local government units, and
the armed forces. The term government-owned or
controlled corporations and financial institutions shall
include all corporations and financial institutions
owned or controlled by the National Government,
whether such corporations and financial institutions
perform governmental or proprietary functions.
(Emphasis supplied.)
The disputation of the Court of Appeals that the
CHR is exempt from the long arm of the Salary
Standardization Law is flawed considering that the
coverage thereof, as defined above, encompasses the
entire gamut of government offices, sans qualification.
This power to administer is not purely ministerial
in character as erroneously held by the Court of
Appeals. The word to administer means to control or
regulate in behalf of others; to direct or superintend the
execution, application or conduct of; and to manage or
conduct public affairs, as to administer the government of
the state.[15]
The regulatory power of the DBM on matters of
compensation is encrypted not only in law, but in
jurisprudence as well. In the recent case
of PhilippineRetirement Authority (PRA) v. Jesusito L.
Buag,[16] this Court, speaking through Mr. Justice
Reynato Puno, ruled that compensation, allowances, and
other benefits received by PRA officials and employees
without the requisite approval or authority of the DBM
are unauthorized and irregular. In the words of the
Court
Despite the power granted to the Board of Directors of
PRA to establish and fix a compensation and benefits
scheme for its employees, the same is subject to the
review of the Department of Budget and Management.
However, in view of the express powers granted to PRA
under its charter, the extent of the review authority of
the Department of Budget and Management is limited.
As stated in Intia, the task of the Department of Budget
and Management is simply to review the compensation
and benefits plan of the government agency or entity
concerned and determine if the same complies with the
prescribed policies and guidelines issued in this regard.
The role of the Department of Budget and Management
is supervisorial in nature, its main duty being to
ascertain that the proposed compensation, benefits and
other incentives to be given to PRA officials and
employees adhere to the policies and guidelines issued
in accordance with applicable laws.
In Victorina Cruz v. Court of Appeals,[17] we held
that the DBM has the sole power and discretion to
administer the compensation and position classification
system of the national government.
In Intia, Jr. v. Commission on Audit,[18] the Court
held that although the charter[19] of the Philippine Postal
Corporation (PPC) grants it the power to fix the
compensation and benefits of its employees and
exempts PPC from the coverage of the rules and
regulations of the Compensation and Position
Classification Office, by virtue of Section 6 of P.D. No.
1597, the compensation system established by the PPC
is, nonetheless, subject to the review of the DBM. This
Court intoned:
It should be emphasized that the review by the DBM of
any PPC resolution affecting the compensation structure
of its personnel should not be interpreted to mean that
the DBM can dictate upon the PPC Board of Directors
and deprive the latter of its discretion on the matter.
Rather, the DBMs function is merely to ensure that the
action taken by the Board of Directors complies with the
requirements of the law, specifically, that PPCs
compensation system conforms as closely as possible with
that provided for under R.A. No. 6758. (Emphasis
supplied.)
As measured by the foregoing legal and
jurisprudential yardsticks, the imprimatur of the DBM
must first be sought prior to implementation
of anyreclassification or upgrading of positions in
government. This is consonant to the mandate of the
DBM under the Revised Administrative Code of 1987,
Section 3, Chapter 1, Title XVII, to wit:
SEC. 3. Powers and Functions. The Department of Budget
and Management shall assist the President in the
preparation of a national resources and expenditures
budget, preparation, execution and control of the
National Budget, preparation and maintenance of
accounting systems essential to the budgetary
process, achievement of more economy and efficiency in
the management of government
operations, administration of compensation and position
classification systems, assessment of organizational
effectiveness and review and evaluation of legislative
proposals having budgetary or organizational
implications. (Emphasis supplied.)
Irrefragably, it is within the turf of the DBM
Secretary to disallow the upgrading, reclassification,
64
and creation of additional plantilla positions in the CHR
based on its finding that such scheme lacks legal
justification.
Notably, the CHR itself recognizes the authority of
the DBM to deny or approve
the proposed reclassification of positions as evidenced
by its three letters to the DBM requesting approval
thereof. As such, it is now estopped from now claiming
that the nod of approval it has previously sought from
the DBM is a superfluity.
The Court of Appeals incorrectly relied on the
pronouncement of the CSC-Central Office that the CHR is
a constitutional commission, and as such enjoys fiscal
autonomy.[20]
Palpably, the Court of Appeals Decision was based
on the mistaken premise that the CHR belongs to the
species of constitutional commissions. But, Article IX of
the Constitution states in no uncertain terms that only
the CSC, the Commission on Elections, and the
Commission on Audit shall be tagged as Constitutional
Commissions with the appurtenant right to fiscal
autonomy. Thus:
Sec. 1. The Constitutional Commissions, which shall be
independent, are the Civil Service Commission, the
Commission on Elections, and the Commission on Audit.
Sec. 5. The Commission shall enjoy fiscal autonomy.
Their approved annual appropriations shall be
automatically and regularly released.
Along the same vein, the Administrative Code, in
Chapter 5, Sections 24 and 26 of Book II on Distribution
of Powers of Government, the constitutional
commissions shall include only the Civil Service
Commission, the Commission on Elections, and the
Commission on Audit, which are granted independence
and fiscal autonomy. In contrast, Chapter 5, Section 29
thereof, is silent on the grant of similar powers to the
other bodies including the CHR. Thus:
SEC. 24. Constitutional Commissions. The Constitutional
Commissions, which shall be independent, are the Civil
Service Commission, the Commission on Elections, and
the Commission on Audit.
SEC. 26. Fiscal Autonomy. The Constitutional
Commissions shall enjoy fiscal autonomy. The approved
annual appropriations shall be automatically and
regularly released.
SEC. 29. Other Bodies. There shall be in accordance with
the Constitution, an Office of the Ombudsman,
a Commission on Human Rights, and independent central
monetary authority, and a national police commission.
Likewise, as provided in the Constitution, Congress may
establish an independent economic and planning
agency. (Emphasis ours.)
From the 1987 Constitution and the
Administrative Code, it is abundantly clear that the CHR
is not among the class of Constitutional Commissions. As
expressed in the oft-repeated maxim expressio unius est
exclusio alterius, the express mention of one person,
thing, act or consequence excludes all others.Stated
otherwise, expressium facit cessare tacitum what is
expressed puts an end to what is implied.[21]
Nor is there any legal basis to support the
contention that the CHR enjoys fiscal autonomy. In
essence, fiscal autonomy entails freedom from outside
control and limitations, other than those provided by
law. It is the freedom to allocate and utilize funds
granted by law, in accordance with law, and pursuant to
the wisdom and dispatch its needs may require from
time to time.[22] In Blaquera v. Alcala and Bengzon v.
Drilon,[23] it is understood that it is only the Judiciary, the
Civil Service Commission, the Commission on Audit, the
Commission on Elections, and the Office of the
Ombudsman, which enjoy fiscal autonomy. Thus,
inBengzon,[24] we explained:
As envisioned in the Constitution, the fiscal autonomy
enjoyed by the Judiciary, the Civil Service Commission,
the Commission on Audit, the Commission on Elections,
and the Office of the Ombudsman contemplates a
guarantee of full flexibility to allocate and utilize their
resources with the wisdom and dispatch that their
needs require. It recognizes the power and authority to
levy, assess and collect fees, fix rates of compensation
not exceeding the highest rates authorized by law for
compensation and pay plans of the government and
allocate and disburse such sums as may be provided by
law or prescribed by them in the course of the discharge
of their functions.
...
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties.
The imposition of restrictions and constraints on the
manner the independent constitutional offices allocate
and utilize the funds appropriated for their operations
is anathema to fiscal autonomy and violative not only of
the express mandate of the Constitution but especially
as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of
our constitutional system is based. In the interest of
comity and cooperation, the Supreme Court, [the]
Constitutional Commissions, and the Ombudsman have
so far limited their objections to constant reminders. We
now agree with the petitioners that this grant of
autonomy should cease to be a meaningless provision.
(Emphasis supplied.)
Neither does the fact that the CHR was admitted
as a member by the Constitutional Fiscal Autonomy
Group (CFAG) ipso facto clothed it with fiscal autonomy.
Fiscal autonomy is a constitutional grant, not a tag
obtainable by membership.
We note with interest that the special provision
under Rep. Act No. 8522, while cited under the heading
of the CHR, did not specifically mention CHR as among
those offices to which the special provision to formulate
and implement organizational structures apply, but
merely states its coverage to includeConstitutional
Commissions and Offices enjoying fiscal autonomy. In
contrast, the Special Provision Applicable to the
Judiciary under Article XXVIII of the General
Appropriations Act of 1998 specifically mentions that
such special provision applies to the judiciary and had
categorically authorized the Chief Justice of the
Supreme Court to formulate and implement the
organizational structure of the Judiciary, to wit:
1. Organizational Structure. Any provision of law to the
contrary notwithstanding and within the limits of their
respective appropriations authorized in this Act, the
Chief Justice of the Supreme Court is authorized to
65
formulate and implement organizational structure of
the Judiciary, to fix and determine the salaries,
allowances, and other benefits of their personnel, and
whenever public interest so requires, make adjustments
in the personal services itemization including, but not
limited to, the transfer of item or creation of new
positions in the Judiciary; PROVIDED, That officers and
employees whose positions are affected by such
reorganization or adjustments shall be granted
retirement gratuities and separation pay in accordance
with existing law, which shall be payable from any
unexpended balance of, or savings in the appropriations
of their respective offices: PROVIDED, FURTHER, That
the implementation hereof shall be in accordance with
salary rates, allowances and other benefits authorized
under compensation standardization laws. (Emphasis
supplied.)
All told, the CHR, although admittedly a
constitutional creation is, nonetheless, not included in
the genus of offices accorded fiscal autonomy by
constitutional or legislative fiat.
Even assuming en arguendo that the CHR enjoys
fiscal autonomy, we share the stance of the DBM that the
grant of fiscal autonomy notwithstanding, all
government offices must, all the same, kowtow to the
Salary Standardization Law. We are of the same mind
with the DBM on its standpoint, thus-
Being a member of the fiscal autonomy group does not
vest the agency with the authority to reclassify, upgrade,
and create positions without approval of the DBM.
While the members of the Group are authorized to
formulate and implement the organizational structures
of their respective offices and determine the
compensation of their personnel, such authority is not
absolute and must be exercised within the parameters of
the Unified Position Classification and Compensation
System established under RA 6758 more popularly known
as the Compensation Standardization Law.[25] (Emphasis
supplied.)
The most lucid argument against the stand of
respondent, however, is the provision of Rep. Act No.
8522 that the implementation hereof shall be in
accordance with salary rates, allowances and other
benefits authorized under compensation
standardization laws.[26]
Indeed, the law upon which respondent heavily
anchors its case upon has expressly provided that any
form of adjustment in the organizational structure must
be within the parameters of the Salary Standardization
Law.
The Salary Standardization Law has gained
impetus in addressing one of the basic causes of
discontent of many civil servants.[27] For this purpose,
Congress has delegated to the DBM the power to
administer the Salary Standardization Law and to
ensure that the spirit behind it is observed. This power
is part of the system of checks and balances or system of
restraints in our government. The DBMs exercise of
such authority is not in itself an arrogation inasmuch as
it is pursuant to the paramount law of the land, the
Salary Standardization Law and the Administrative
Code.
In line with its role to breathe life into the policy
behind the Salary Standardization Law of providing
equal pay for substantially equal work and to base
differences in pay upon substantive differences in duties
and responsibilities, and qualification requirements of
the positions, the DBM, in the case under review, made a
determination, after a thorough evaluation, that the
reclassification and upgrading scheme proposed by the
CHR lacks legal rationalization.
The DBM expounded that Section 78 of the
general provisions of the General Appropriations Act FY
1998, which the CHR heavily relies upon to justify its
reclassification scheme, explicitly provides that no
organizational unit or changes in key positions shall be
authorized unless provided by law or directed by the
President. Here, the DBM discerned that there is no law
authorizing the creation of a Finance Management
Office and a Public Affairs Office in the CHR. Anent CHRs
proposal to upgrade twelve positions of Attorney VI, SG-
26 to Director IV, SG-28, and four positions of Director
III, SG-27 to Director IV, SG-28, in the Central Office, the
DBM denied the same as this would change the context
from support to substantive without actual change in
functions.
This view of the DBM, as the laws designated
body to implement and administer a unified
compensation system, is beyond cavil. The
interpretation of an administrative government agency,
which is tasked to implement a statute is accorded great
respect and ordinarily controls the construction of the
courts. In Energy Regulatory Board v. Court of Appeals,
[28] we echoed the basic rule that the courts will not
interfere in matters which are addressed to the sound
discretion of government agencies entrusted with the
regulation of activities coming under the special
technical knowledge and training of such agencies.
To be sure, considering his expertise on matters
affecting the nations coffers, the Secretary of the DBM,
as the Presidents alter ego, knows from where he
speaks inasmuch as he has the front seat view of the
adverse effects of an unwarranted upgrading or creation
of positions in the CHR in particular and in the entire
government in general.
WHEREFORE, the petition is GRANTED, the
Decision dated 29 November 2001 of the Court of
Appeals in CA-G.R. SP No. 59678 and its Resolution
dated 11 September 2002 are hereby REVERSED and
SET ASIDE. The ruling dated 29 March 1999 of the Civil
Service Commision-National Capital Region is
REINSTATED. The Commission on Human Rights
Resolution No. A98-047 dated 04 September 1998,
Resolution No. A98-055 dated 19 October 1998 and
Resolution No. A98-062 dated 17 November 1998
without the approval of the Department of Budget and
Management are disallowed. No pronouncement as to
costs.
SO ORDERED.
2. PROPER PARTY
[G.R. No. 157509. January 18, 2005]
AUTOMOTIVE INDUSTRY WORKERS ALLIANCE
(AIWA) and its Affiliated Unions: Mitsubishi Motors
Workers Phils. Union; Mitsubishi Motors Phils.
66
Supervisors Union, Nissan Motors Phils., Inc.
Workers Union, Toyota Motors Phils. Workers
Union, DURASTEEL WORKERS UNION, FILSHUTTERS
EMPLOYEES & WORKERS UNION, NATIONAL LABOR
UNION, PEPSI-COLA SUPERVISORS AND EMPLOYEES
UNION, PSBA FACULTY ASSOCIATION, PLDT
SECURITY PERSONNEL UNION, PUREFOODS UNIFIED
LABOR ORGANIZATION, SAMAHANG MANGGAGAWA
NG BICUTAN CONTAINERS CORP., SAMAHANG
MANGGAGAWA NG CINDERELLA, SAMAHANG
MANGGAGAWA NG LAURAS FOOD PRODUCTS,
petitioners, vs. HON. ALBERTO ROMULO, in his
capacity as Executive Secretary, and HON. PATRICIA
STO. TOMAS, in her capacity as Secretary of Labor
and Employment, respondents.
DECISION
CHICO-NAZARIO, J.:
Petitioners, composed of ten (10) labor unions,
call upon this Court to exercise its power of judicial
review to declare as unconstitutional an executive order
assailed to be in derogation of the constitutional
doctrine of separation of powers.
In an original action for certiorari, petitioners
invoke their status as labor unions and as taxpayers
whose rights and interests are allegedly violated and
prejudiced by Executive Order No. 185 dated 10 March
2003 whereby administrative supervision over the
National Labor Relations Commission (NLRC), its
regional branches and all its personnel including the
executive labor arbiters and labor arbiters was
transferred from the NLRC Chairperson to the Secretary
of Labor and Employment. In support of their position,
[1] petitioners argue that the NLRC -- created by
Presidential Decree No. 442, otherwise known as the
Labor Code, during Martial Law was an integral part of
the Department (then Ministry) of Labor and
Employment (DOLE) under the administrative
supervision of the Secretary of Justice. During the time
of President Corazon C. Aquino, and while she was
endowed with legislative functions after EDSA I,
Executive Order No. 292[2] was issued whereby the
NLRC became an agency attached to the DOLE for policy
and program coordination and for administrative
supervision. On 02 March 1989, Article 213 of the Labor
Code was expressly amended by Republic Act No. 6715
declaring that the NLRC was to be attached to the DOLE
for program and policy coordination only while the
administrative supervision over the NLRC, its regional
branches and personnel, was turned over to the NLRC
Chairman. The subject E.O. No. 185, in authorizing the
Secretary of Labor to exercise administrative
supervision over the NLRC, its regional branches and
personnel, allegedly reverted to the pre-Rep. Act No.
6715 set-up, amending the latter law which only
Congress can do.
The respondents herein, as represented by the
Office of the Solicitor General, opposed the petition on
procedural[3] and substantive[4] grounds. Procedurally,
it is alleged that the petition does not pose an actual
case or controversy upon which judicial review may be
exercised as petitioners have not specifically cited how
E.O. No. 185 has prejudiced or threatened to prejudice
their rights and existence as labor unions and as
taxpayers. Closely intertwined therewith, respondents
further argue that petitioners have no locus standi to
assail the validity of E.O. No. 185, not even in their
capacity as taxpayers, considering that labor unions are
exempt from paying taxes, citing Sec. 30 of the Tax
Reform Act of 1997. Even assuming that their individual
members are taxpayers, respondents maintain that a
taxpayer suit will not prosper as E.O. No. 185 does not
require additional appropriation for its implementation.
As the petition can be decided without passing on the
validity of the subject executive order, respondents
conclude that the same should be forthwith dismissed.
Even on the merits, respondents advance the
view that the petition must fail as the administrative
supervision granted by the Labor Code to the NLRC
Chairman over the NLRC, its regional branches and
personnel, does not place them beyond the Presidents
broader power of control and supervision, a power
conferred no less than by the Constitution in Section 17,
Article VII thereof. Thus, in the exercise of the
Presidents power of control and supervision, he can
generally oversee the operations of the NLRC, its
regional branches and personnel thru his alter ego, the
Secretary of Labor, pursuant to the doctrine of qualified
political agency.
In their Reply,[5] petitioners affirm their locus
standi contending that they are suing for and in behalf
of their members estimated to be more or less fifty
thousand (50,000) workers who are the real parties to
be affected by the resolution of this Court. They likewise
maintain that they are suing in behalf of the employees
of the NLRC who have pending cases for dismissal. Thus,
possessed of the necessary standing, petitioners
theorize that the issue before this Court must
necessarily be decided as it involves an act of the Chief
Executive amending a provision of law.
For clarity, E.O. No. 185 is hereby quoted:
EXECUTIVE ORDER NO. 185
AUTHORIZING THE SECRETARY OF LABOR AND
EMPLOYMENT TO EXERCISE ADMINISTRATIVE
SUPERVISION OVER THE NATIONAL LABOR
RELATIONS
COMMISSION
WHEREAS, Section 17, Article VII of the
Constitution provides that the President shall have
control of all executive departments, bureaus and offices
and shall ensure that the laws be faithfully executed;
WHEREAS, the National Labor Relations
Commission (NLRC) which was created by virtue of
Presidential Decree No. 442, otherwise known as the
Labor Code of the Philippines, is an agency under the
Executive Department and was originally envisaged as
being an integral part of the Department (then Ministry)
of Labor and Employment (DOLE) under the
administrative supervision of the Secretary of Labor and
Employment (Secretary of Labor);
WHEREAS, upon the issuance of Executive Order
No. 292, otherwise known as the Revised
Administrative Code of 1987 (the Administrative Code),
the NLRC, by virtue of Section 25, Chapter 6, Title VII,
Book IV thereof, became an agency attached to the
DOLE for policy and program coordination and
administrative supervision;
WHEREAS, Article 213 of the Labor Code and
Section 25, Chapter 6, Title VII, Book IV of the
Administrative Code were amended by Republic Act. No.
6715 approved on March 2, 1989, which provides that
67
the NLRC shall be attached to the DOLE for program and
policy coordination only and transferred administrative
supervision over the NLRC, all its regional branches and
personnel to the NLRC Chairman;
WHEREAS, Section 16, Article III of the
Constitution guarantees the right of all persons to a
speedy disposition of their cases before all judicial,
quasi-judicial and administrative bodies;
WHEREAS, the Secretary of Labor, after
evaluating the NLRCs performance record in the last five
(5) years, including the rate of disposition of pending
cases before it, has informed the President that there is
a need to expedite the disposition of labor cases
pending before the NLRC and all its regional and sub-
regional branches or provincial extension units and
initiate potent measures to prevent graft and corruption
therein so as to reform its systems and personnel, as
well as infuse the organization with a sense of public
service in consonance with the imperative of change for
the greater interest of the people;
WHEREAS, after consultations with the relevant
sectors, the Secretary of Labor has recommended that
the President, pursuant to her powers under the
Constitution and existing laws, authorize the Secretary
of Labor to exercise administrative supervision over the
NLRC and all its regional and sub-regional branches or
provincial extension units with the objective of
improving the rate of disposition of pending cases and
institute adequate measures for the prevention of graft
and corruption within the said agency;
NOW, THEREFORE, I, GLORIA MACAPAGAL
ARROYO, President of the Republic of the Philippines, by
virtue of the powers vested in me by the Constitution
and existing laws, do hereby order:
SECTION 1. Authority To Exercise Administrative
Supervision. The Secretary of Labor is hereby
authorized to exercise administrative supervision over
the NLRC, its regional branches and all its personnel,
including the Executive Labor Arbiters and Labor
Arbiters, with the objective of improving the rate of
disposition of cases pending before it and its regional
and sub-regional branches or provincial extension units
and to institute adequate measures for the prevention of
graft and corruption within the said agency.
For this purpose, the Secretary of Labor shall,
among others:
a. Generally oversee the operations of the NLRC
and its regional and sub-regional branches or provincial
extension units for the purpose of ensuring that cases
pending before them are decided or resolved
expeditiously;
b. Require the submission of reports as the
Secretary of Labor may deem necessary;
c. Initiate measures within the agency to prevent
graft and corruption, including but not limited to, the
conduct of management audits, performance
evaluations and inspections to determine compliance
with established policies, standards and guidelines;
d. To take such action as may be necessary for the
proper performance of official functions, including
rectification of violations, abuses and other forms of
mal-administration; and
e. Investigate, on its own or upon complaint,
matters involving disciplinary action against any of the
NLRCs personnel, including Presidential appointees, in
accordance with existing laws, rules and regulations.
After completing his/her investigation, the Secretary of
Labor shall submit a report to the President on the
investigation conducted with a recommendation as to
the penalty to be imposed or other action to be taken,
including referral to the Presidential Anti-Graft
Commission (PAGC), the Office of the Ombudsman or
any other office, committee, commission, agency,
department, instrumentality or branch of the
government for appropriate action.
The authority conferred herein upon the
Secretary of Labor shall not extend to the power to
review, reverse, revise, or modify the decisions of the
NLRC in the exercise of its quasi-judicial functions (cf.
Section 38(2) (b), Chapter 7, Book IV, Administrative
Code).
SECTION 2. Report to the Secretary of Labor. The
NLRC, through its Chairman, shall submit a report to the
Secretary of Labor within thirty (30) days from issuance
of this Executive Order, on the following matters:
a. Performance Report/Audit for the last five (5)
years, including list of pending cases and cases disposed
of within the said period by the NLRC en banc, by
Division and by the Labor Arbiters in each of its regional
and sub-regional branches or provincial extension units;
b. Detailed Master Plan on how to liquidate its
backlog of cases with clear timetables to clean up its
dockets within six (6) months from the issuance hereof;
c. Complete inventory of its assets and list of
personnel indicating their present positions and
stations; and
d. Such other matters as may be required by the
Secretary of Labor.
SECTION 3. Rules and Regulations. The Secretary
of Labor, in consultation with the Chairman of the NLRC,
is hereby authorized to issue rules and regulations for
the effective implementation of the provisions of this
Executive Order.
SECTION 4. Repealing Clause. All laws, executive
issuances, rules and regulations or parts thereof which
are inconsistent with the provisions of this Executive
Order are hereby repealed, amended, or modified
accordingly.
SECTION 5. Effectivity. This Executive Order shall
take effect immediately upon the completion of its
publication in the Official Gazette or in a newspaper of
general circulation in the country.
City of Manila, March 10, 2003.[6]
The constitutionality of a governmental act
having been challenged, it comes as no surprise that the
first line of defense is to question the standing of
petitioners and the justiciability of herein case.
It is hornbook doctrine that the exercise of the
power of judicial review requires the concurrence of the
following requisites, namely: (1) the existence of an
appropriate case; (2) an interest personal and
substantial by the party raising the constitutional
question; (3) the plea that the function be exercised at
the earliest opportunity; and (4) the necessity that the
constitutional question be passed upon in order to
decide the case.[7]
68
 As correctly pointed out by respondents, judicial
review cannot be exercised in vacuo. The function of the
courts is to determine controversies between litigants
and not to give advisory opinions.[8] The power of
judicial review can only be exercised in connection with
a bona fide case or controversy which involves the
statute sought to be reviewed.[9]
Even with the presence of an actual case or
controversy, the Court may refuse to exercise judicial
review unless the constitutional question is brought
before it by a party having the requisite standing to
challenge it.[10] Legal standing or locus standi is
defined as a personal and substantial interest in the
case such that the party has sustained or will sustain
direct injury as a result of the governmental act that is
being challenged.[11] For a citizen to have standing, he
must establish that he has suffered some actual or
threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly traceable
to the challenged action; and the injury is likely to be
redressed by a favorable action.[12]
Petitioners have not shown that they have
sustained or are in danger of sustaining any personal
injury attributable to the enactment of E.O. No. 185. As
labor unions representing their members, it cannot be
said that E.O. No. 185 will prejudice their rights and
interests considering that the scope of the authority
conferred upon the Secretary of Labor does not extend
to the power to review, reverse, revise or modify the
decisions of the NLRC in the exercise of its quasi-judicial
functions.[13] Thus, only NLRC personnel who may find
themselves the subject of the Secretary of Labors
disciplinary authority, conferred by Section 1(d) of the
subject executive order, may be said to have a direct and
specific interest in raising the substantive issue herein.
Moreover, and if at all, only Congress, and not
petitioners, can claim any injury[14] from the alleged
executive encroachment of the legislative function to
amend, modify and/or repeal laws.
Neither can standing be conferred on petitioners
as taxpayers since petitioners have not established
disbursement of public funds in contravention of law or
the Constitution.[15] A taxpayers suit is properly
brought only when there is an exercise of the spending
or taxing power of Congress.[16] As correctly pointed
out by respondents, E.O. No. 185 does not even require
for its implementation additional appropriation.
All told, if we were to follow the strict rule on
locus standi, this petition should be forthwith dismissed
on that score. The rule on standing, however, is a matter
of procedure, hence, can be relaxed for nontraditional
plaintiffs like ordinary citizens, taxpayers and
legislators when the public interest so requires, such as
when the matter is of transcendental importance, of
overarching significance to society, or of paramount
public interest.[17]
The question is, does the issue posed in this
petition meet the exacting standard required for this
Court to take the liberal approach and recognize the
standing of herein petitioners?
The instant petition fails to persuade us.
The subject matter of E.O. No. 185 is the grant of
authority by the President to the Secretary of Labor to
exercise administrative supervision over the NLRC, its
regional branches and all its personnel, including the
Executive Labor Arbiters and Labor Arbiters. Its impact,
sans the challenge to its constitutionality, is thereby
limited to the departments to which it is addressed.
Taking our cue from the early case of Olsen v. Herstein
and Rafferty,[18] the subject executive order can be
considered as nothing more or less than a command
from a superior to an inferior. It creates no relation
except between the official who issued it and the
officials who received it. It has for its object simply the
efficient and economical administration of the affairs of
the department to which it is issued in accordance with
the law governing the subject matter. Administrative in
its nature, the subject order does not pass beyond the
limits of the departments to which it is directed, hence,
it has not created any rights in third persons, not even in
the fifty thousand or so union members being
represented by petitioners who may or may not have
pending cases before the labor arbiters or the NLRC.
In fine, considering that the governmental act
being questioned has a limited reach, its impact
confined to corridors of the executive department, this
is not one of those exceptional occasions where the
Court is justified in sweeping aside a critical procedural
requirement, rooted as it is in the constitutionally
enshrined principle of separation of powers. As
succinctly put by Mr. Justice Reynato S. Puno in his
dissenting opinion in the first Kilosbayan case:[19]
. . . [C]ourts are neither free to decide all kinds of
cases dumped into their laps nor are they free to open
their doors to all parties or entities claiming a grievance.
The rationale for this constitutional requirement of
locus standi is by no means trifle. It is intended to
assure a vigorous adversary presentation of the case,
and, perhaps more importantly to warrant the
judiciarys overruling the determination of a coordinate,
democratically elected organ of government.[20] It thus
goes to the very essence of representative democracies
...
A lesser but not insignificant reason for screening
the standing of persons who desire to litigate
constitutional issues is economic in character. Given the
sparseness of our resources, the capacity of courts to
render efficient judicial service to our people is severely
limited. For courts to indiscriminately open their doors
to all types of suits and suitors is for them to unduly
overburden their dockets, and ultimately render
themselves ineffective dispensers of justice. To be sure,
this is an evil that clearly confronts our judiciary today.
All things considered, whether or not E.O. No. 185
is indeed unconstitutional will have to await the proper
party in a proper case to assail its validity.
WHEREFORE, premises considered, the instant
petition dated 27 March 2003 is hereby DISMISSED for
lack of merit. No costs.
SO ORDERED.
2. CITIZEN STANDING
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC.
[MABINI], petitioners,
vs.
69
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, Malacañang 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
70
 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
71
 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 Pambansa—and for the
diligent ones, ready access to the legislative records—
no such publicity accompanies the law-making process
of the President. Thus, without publication, the people
have no means of knowing what presidential decrees
have actually been promulgated, much less a definite
way of informing themselves of the specific contents
and texts of such decrees. As the Supreme Court of
Spain ruled: "Bajo la denominacion 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.
72
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.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the
views expressed in the ably written opinion of Justice
Escolin. I am unable, however, to concur insofar as it
would unqualifiedly impose the requirement of beg to disagree insofar as it holds that such notice shall
publication in the Official Gazette for unpublished be by publication in the Official Gazette. 2
"presidential issuances" to have binding force and effect.
3. It suffices, as was stated by Judge Learned Hand, that
I shall explain why. law as the command of the government "must be
ascertainable in some form if it is to be enforced at
all. 3 It would indeed be to reduce it to the level of mere
1. It is of course true that without the requisite
futility, as pointed out by Justice Cardozo, "if it is
publication, a due process question would arise if made
unknown and unknowable. 4 Publication, to repeat, is
to apply adversely to a party who is not even aware of
thus essential. What I am not prepared to subscribe to is
the existence of any legislative or executive act having
the doctrine that it must be in the Official Gazette. To be
the force and effect of law. My point is that such
sure once published therein there is the ascertainable
publication required need not be confined to the Official
mode of determining the exact date of its effectivity. Still
Gazette. From the pragmatic standpoint, there is an
for me that does not dispose of the question of what is
advantage to be gained. It conduces to certainty. That is
the jural effect of past presidential decrees or executive
too be admitted. It does not follow, however, that failure
acts not so published. For prior thereto, it could be that
to do so would in all cases and under all circumstances
parties aware of their existence could have conducted
result in a statute, presidential decree or any other
themselves in accordance with their provisions. If no
executive act of the same category being bereft of any
legal consequences could attach due to lack of
binding force and effect. To so hold would, for me, raise
publication in the Official Gazette, then serious
a constitutional question. Such a pronouncement would
problems could arise. Previous transactions based on
lend itself to the interpretation that such a legislative or
such "Presidential Issuances" could be open to question.
presidential act is bereft of the attribute of effectivity
Matters deemed settled could still be inquired into. I am
unless published in the Official Gazette. There is no such
not prepared to hold that such an effect is contemplated
requirement in the Constitution as Justice Plana so aptly
by our decision. Where such presidential decree or
pointed out. It is true that what is decided now applies
executive act is made the basis of a criminal
only to past "presidential issuances". Nonetheless, this
prosecution, then, of course, its ex post facto character
clarification is, to my mind, needed to avoid any possible
becomes evident. 5 In civil cases though, retroactivity as
misconception as to what is required for any statute or
such is not conclusive on the due process aspect. There
presidential act to be impressed with binding force or
must still be a showing of arbitrariness. Moreover,
effectivity.
where the challenged presidential decree or executive
act was issued under the police power, the non-
2. It is quite understandable then why I concur in the impairment clause of the Constitution may not always
separate opinion of Justice Plana. Its first paragraph sets be successfully invoked. There must still be that process
forth what to me is the constitutional doctrine of balancing to determine whether or not it could in
applicable to this case. Thus: "The Philippine such a case be tainted by infirmity. 6 In traditional
Constitution does not require the publication of laws as terminology, there could arise then a question of
a prerequisite for their effectivity, unlike some unconstitutional application. That is as far as it goes.
Constitutions elsewhere. It may be said though that the
guarantee of due process requires notice of laws to
4. Let me make therefore that my qualified concurrence
affected Parties before they can be bound thereby; but
goes no further than to affirm that publication is
such notice is not necessarily by publication in the
essential to the effectivity of a legislative or executive
Official Gazette. The due process clause is not that
act of a general application. I am not in agreement with
precise. 1 I am likewise in agreement with its closing
the view that such publication must be in the Official
paragraph: "In fine, I concur in the majority decision to
Gazette. The Civil Code itself in its Article 2 expressly
the extent that it requires notice before laws become
recognizes that the rule as to laws taking effect after
effective, for no person should be bound by a law
fifteen days following the completion of their
without notice. This is elementary fairness. However, I
publication in the Official Gazette is subject to this
73
exception, "unless it is otherwise provided." Moreover, CDCP executed a Memorandum of Agreement dated MCCRRP. PEA and AMARI entered into the JVA through
the Civil Code is itself only a legislative enactment, December 29, 1981, which stated: negotiation without public bidding.4 On April 28, 1995,
Republic Act No. 386. It does not and cannot have the "(i) CDCP shall undertake all reclamation, construction, the Board of Directors of PEA, in its Resolution No.
juridical force of a constitutional command. A later and such other works in the MCCRRP as may be agreed 1245, confirmed the JVA.5 On June 8, 1995, then
legislative or executive act which has the force and effect upon by the parties, to be paid according to progress of President Fidel V. Ramos, through then Executive
of law can legally provide for a works on a unit price/lump sum basis for items of work Secretary Ruben Torres, approved the JVA.6
to be agreed upon, subject to price escalation, retention On November 29, 1996, then Senate President Ernesto
and other terms and conditions provided for in Maceda delivered a privilege speech in the Senate and
CITIZEN STANDING
Presidential Decree No. 1594. All the financing required denounced the JVA as the "grandmother of all scams." As
for such works shall be provided by PEA. a result, the Senate Committee on Government
G.R. No. 133250 July 9, 2002
xxx Corporations and Public Enterprises, and the
FRANCISCO I. CHAVEZ, petitioner,
(iii) x x x CDCP shall give up all its development rights Committee on Accountability of Public Officers and
vs.
and hereby agrees to cede and transfer in favor of PEA, Investigations, conducted a joint investigation. The
PUBLIC ESTATES AUTHORITY and AMARI COASTAL
all of the rights, title, interest and participation of CDCP Senate Committees reported the results of their
BAY DEVELOPMENT CORPORATION, respondents.
in and to all the areas of land reclaimed by CDCP in the investigation in Senate Committee Report No. 560 dated
CARPIO, J.:
MCCRRP as of December 30, 1981 which have not yet September 16, 1997.7 Among the conclusions of their
This is an original Petition for Mandamus with prayer
been sold, transferred or otherwise disposed of by CDCP report are: (1) the reclaimed lands PEA seeks to transfer
for a writ of preliminary injunction and a temporary
as of said date, which areas consist of approximately to AMARI under the JVA are lands of the public domain
restraining order. The petition seeks to compel the
Ninety-Nine Thousand Four Hundred Seventy Three which the government has not classified as alienable
Public Estates Authority ("PEA" for brevity) to disclose
(99,473) square meters in the Financial Center Area lands and therefore PEA cannot alienate these lands; (2)
all facts on PEA's then on-going renegotiations with
covered by land pledge No. 5 and approximately Three the certificates of title covering the Freedom Islands are
Amari Coastal Bay and Development Corporation
Million Three Hundred Eighty Two Thousand Eight thus void, and (3) the JVA itself is illegal.
("AMARI" for brevity) to reclaim portions of Manila Bay.
Hundred Eighty Eight (3,382,888) square meters of On December 5, 1997, then President Fidel V. Ramos
The petition further seeks to enjoin PEA from signing a
reclaimed areas at varying elevations above Mean Low issued Presidential Administrative Order No. 365
new agreement with AMARI involving such reclamation.
Water Level located outside the Financial Center Area creating a Legal Task Force to conduct a study on the
The Facts
and the First Neighborhood Unit."3 legality of the JVA in view of Senate Committee Report
On November 20, 1973, the government, through the
On January 19, 1988, then President Corazon C. Aquino No. 560. The members of the Legal Task Force were the
Commissioner of Public Highways, signed a contract
issued Special Patent No. 3517, granting and Secretary of Justice,8 the Chief Presidential Legal
with the Construction and Development Corporation of
transferring to PEA "the parcels of land so reclaimed Counsel,9 and the Government Corporate Counsel.10 The
the Philippines ("CDCP" for brevity) to reclaim certain
under the Manila-Cavite Coastal Road and Reclamation Legal Task Force upheld the legality of the JVA, contrary
foreshore and offshore areas of Manila Bay. The contract
Project (MCCRRP) containing a total area of one million to the conclusions reached by the Senate Committees.11
also included the construction of Phases I and II of the
nine hundred fifteen thousand eight hundred ninety On April 4 and 5, 1998, the Philippine Daily
Manila-Cavite Coastal Road. CDCP obligated itself to
four (1,915,894) square meters." Subsequently, on April Inquirer and Today published reports that there were
carry out all the works in consideration of fifty percent
9, 1988, the Register of Deeds of the Municipality of on-going renegotiations between PEA and AMARI under
of the total reclaimed land.
Paranñ aque issued Transfer Certificates of Title Nos. an order issued by then President Fidel V. Ramos.
On February 4, 1977, then President Ferdinand E.
7309, 7311, and 7312, in the name of PEA, covering the According to these reports, PEA Director Nestor Kalaw,
Marcos issued Presidential Decree No. 1084 creating
three reclaimed islands known as the "Freedom Islands" PEA Chairman Arsenio Yulo and retired Navy Officer
PEA. PD No. 1084 tasked PEA "to reclaim land, including
located at the southern portion of the Manila-Cavite Sergio Cruz composed the negotiating panel of PEA.
foreshore and submerged areas," and "to develop,
Coastal Road, Paranñ aque City. The Freedom Islands have On April 13, 1998, Antonio M. Zulueta filed before the
improve, acquire, x x x lease and sell any and all kinds of
a total land area of One Million Five Hundred Seventy Court a Petition for Prohibition with Application for the
lands."1 On the same date, then President Marcos issued
Eight Thousand Four Hundred and Forty One Issuance of a Temporary Restraining Order and
Presidential Decree No. 1085 transferring to PEA the
(1,578,441) square meters or 157.841 hectares. Preliminary Injunction docketed as G.R. No. 132994
"lands reclaimed in the foreshore and offshore of the
On April 25, 1995, PEA entered into a Joint Venture seeking to nullify the JVA. The Court dismissed the
Manila Bay"2 under the Manila-Cavite Coastal Road and
Agreement ("JVA" for brevity) with AMARI, a private petition "for unwarranted disregard of judicial
Reclamation Project (MCCRRP).
corporation, to develop the Freedom Islands. The JVA hierarchy, without prejudice to the refiling of the case
On December 29, 1981, then President Marcos issued a
also required the reclamation of an additional 250 before the proper court."12
memorandum directing PEA to amend its contract with
hectares of submerged areas surrounding these islands On April 27, 1998, petitioner Frank I. Chavez
CDCP, so that "[A]ll future works in MCCRRP x x x shall
to complete the configuration in the Master ("Petitioner" for brevity) as a taxpayer, filed the
be funded and owned by PEA." Accordingly, PEA and
Development Plan of the Southern Reclamation Project- instant Petition for Mandamus with Prayer for the

74
Issuance of a Writ of Preliminary Injunction and
Temporary Restraining Order. Petitioner contends the
government stands to lose billions of pesos in the sale
by PEA of the reclaimed lands to AMARI. Petitioner
prays that PEA publicly disclose the terms of any
renegotiation of the JVA, invoking Section 28, Article II,
and Section 7, Article III, of the 1987 Constitution on the
right of the people to information on matters of public
concern. Petitioner assails the sale to AMARI of lands of
the public domain as a blatant violation of Section 3,
Article XII of the 1987 Constitution prohibiting the sale
of alienable lands of the public domain to private
corporations. Finally, petitioner asserts that he seeks to
enjoin the loss of billions of pesos in properties of the
State that are of public dominion.
After several motions for extension of time,13 PEA and
AMARI filed their Comments on October 19, 1998 and
June 25, 1998, respectively. Meanwhile, on December
28, 1998, petitioner filed an Omnibus Motion: (a) to
require PEA to submit the terms of the renegotiated
PEA-AMARI contract; (b) for issuance of a temporary
restraining order; and (c) to set the case for hearing on
oral argument. Petitioner filed a Reiterative Motion for
Issuance of a TRO dated May 26, 1999, which the Court
denied in a Resolution dated June 22, 1999.
In a Resolution dated March 23, 1999, the Court gave
due course to the petition and required the parties to
file their respective memoranda.
On March 30, 1999, PEA and AMARI signed the
Amended Joint Venture Agreement ("Amended JVA," for
brevity). On May 28, 1999, the Office of the President
under the administration of then President Joseph E.
Estrada approved the Amended JVA.
Due to the approval of the Amended JVA by the Office of
the President, petitioner now prays that on
"constitutional and statutory grounds the renegotiated
contract be declared null and void."14
The Issues
The issues raised by petitioner, PEA15 and AMARI16 are
as follows:
I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN
THE PETITION ARE MOOT AND ACADEMIC BECAUSE
OF SUBSEQUENT EVENTS;
II. WHETHER THE PETITION MERITS DISMISSAL FOR
FAILING TO OBSERVE THE PRINCIPLE GOVERNING
THE HIERARCHY OF COURTS;
III. WHETHER THE PETITION MERITS DISMISSAL FOR
NON-EXHAUSTION OF ADMINISTRATIVE REMEDIES;
IV. WHETHER PETITIONER HAS LOCUS STANDI TO
BRING THIS SUIT;
V. WHETHER THE CONSTITUTIONAL RIGHT TO
INFORMATION INCLUDES OFFICIAL INFORMATION ON
ON-GOING NEGOTIATIONS BEFORE A FINAL
AGREEMENT;
VI. WHETHER THE STIPULATIONS IN THE AMENDED
JOINT VENTURE AGREEMENT FOR THE TRANSFER TO
AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO
BE RECLAIMED, VIOLATE THE 1987 CONSTITUTION;
AND
VII. WHETHER THE COURT IS THE PROPER FORUM
FOR RAISING THE ISSUE OF WHETHER THE AMENDED
JOINT VENTURE AGREEMENT IS GROSSLY
DISADVANTAGEOUS TO THE GOVERNMENT.
The Court's Ruling
First issue: whether the principal reliefs prayed for in
the petition are moot and academic because of
subsequent events.
The petition prays that PEA publicly disclose the "terms
and conditions of the on-going negotiations for a new
agreement." The petition also prays that the Court
enjoin PEA from "privately entering into, perfecting
and/or executing any new agreement with AMARI."
PEA and AMARI claim the petition is now moot and
academic because AMARI furnished petitioner on June
21, 1999 a copy of the signed Amended JVA containing
the terms and conditions agreed upon in the
renegotiations. Thus, PEA has satisfied petitioner's
prayer for a public disclosure of the renegotiations.
Likewise, petitioner's prayer to enjoin the signing of the
Amended JVA is now moot because PEA and AMARI
have already signed the Amended JVA on March 30,
1999. Moreover, the Office of the President has
approved the Amended JVA on May 28, 1999.
Petitioner counters that PEA and AMARI cannot avoid
the constitutional issue by simply fast-tracking the
signing and approval of the Amended JVA before the
Court could act on the issue. Presidential approval does
not resolve the constitutional issue or remove it from
the ambit of judicial review.
We rule that the signing of the Amended JVA by PEA and
AMARI and its approval by the President cannot operate
to moot the petition and divest the Court of its
jurisdiction. PEA and AMARI have still to implement the
Amended JVA. The prayer to enjoin the signing of the
Amended JVA on constitutional grounds necessarily
includes preventing its implementation if in the
meantime PEA and AMARI have signed one in violation
of the Constitution. Petitioner's principal basis in
assailing the renegotiation of the JVA is its violation of
Section 3, Article XII of the Constitution, which prohibits
the government from alienating lands of the public
domain to private corporations. If the Amended JVA
indeed violates the Constitution, it is the duty of the
Court to enjoin its implementation, and if already
implemented, to annul the effects of such
unconstitutional contract.
The Amended JVA is not an ordinary commercial
contract but one which seeks to transfer title and
ownership to 367.5 hectares of reclaimed lands and
submerged areas of Manila Bay to a single private
corporation. It now becomes more compelling for the
Court to resolve the issue to insure the government
itself does not violate a provision of the Constitution
intended to safeguard the national patrimony.
Supervening events, whether intended or accidental,
cannot prevent the Court from rendering a decision if
there is a grave violation of the Constitution. In the
instant case, if the Amended JVA runs counter to the
Constitution, the Court can still prevent the transfer of
title and ownership of alienable lands of the public
domain in the name of AMARI. Even in cases where
supervening events had made the cases moot, the Court
did not hesitate to resolve the legal or constitutional
issues raised to formulate controlling principles to
guide the bench, bar, and the public.17
Also, the instant petition is a case of first impression. All
previous decisions of the Court involving Section 3,
Article XII of the 1987 Constitution, or its counterpart
provision in the 1973
Constitution,18 covered agricultural lands sold to
private corporations which acquired the lands from
private parties. The transferors of the private
corporations claimed or could claim the right to judicial
confirmation of their imperfect titles19 under Title
II of Commonwealth Act. 141 ("CA No. 141" for brevity).
In the instant case, AMARI seeks to acquire from PEA, a
public corporation, reclaimed lands and submerged
areas for non-agricultural purposes
by purchase under PD No. 1084 (charter of PEA)
and Title III of CA No. 141. Certain undertakings by
AMARI under the Amended JVA constitute the
consideration for the purchase. Neither AMARI nor PEA
can claim judicial confirmation of their titles because
the lands covered by the Amended JVA are newly
reclaimed or still to be reclaimed. Judicial confirmation
of imperfect title requires open, continuous, exclusive
75
and notorious occupation of agricultural lands of the
public domain for at least thirty years since June 12,
1945 or earlier. Besides, the deadline for filing
applications for judicial confirmation of imperfect title
expired on December 31, 1987.20
Lastly, there is a need to resolve immediately the
constitutional issue raised in this petition because of the
possible transfer at any time by PEA to AMARI of title
and ownership to portions of the reclaimed lands.
Under the Amended JVA, PEA is obligated to transfer to
AMARI the latter's seventy percent proportionate share
in the reclaimed areas as the reclamation progresses.
The Amended JVA even allows AMARI to mortgage at
any time the entire reclaimed area to raise financing for
the reclamation project.21
Second issue: whether the petition merits dismissal
for failing to observe the principle governing the
hierarchy of courts.
PEA and AMARI claim petitioner ignored the judicial
hierarchy by seeking relief directly from the Court. The
principle of hierarchy of courts applies generally to
cases involving factual questions. As it is not a trier of
facts, the Court cannot entertain cases involving factual
issues. The instant case, however, raises constitutional
issues of transcendental importance to the public.22 The
Court can resolve this case without determining any
factual issue related to the case. Also, the instant case is
a petition for mandamus which falls under the original
jurisdiction of the Court under Section 5, Article VIII of
the Constitution. We resolve to exercise primary
jurisdiction over the instant case.
Third issue: whether the petition merits dismissal for
non-exhaustion of administrative remedies.
PEA faults petitioner for seeking judicial intervention in
compelling PEA to disclose publicly certain information
without first asking PEA the needed information. PEA
claims petitioner's direct resort to the Court violates the
principle of exhaustion of administrative remedies. It
also violates the rule that mandamus may issue only if
there is no other plain, speedy and adequate remedy in
the ordinary course of law.
PEA distinguishes the instant case from Tanñ ada v.
Tuvera23 where the Court granted the petition for
mandamus even if the petitioners there did not initially
demand from the Office of the President the publication
of the presidential decrees. PEA points out that in
Tanñ ada, the Executive Department had an affirmative
statutory duty under Article 2 of the Civil Code24 and
Section 1 of Commonwealth Act No. 63825 to publish the
presidential decrees. There was, therefore, no need for
the petitioners in Tanñ ada to make an initial demand
from the Office of the President. In the instant case, PEA
claims it has no affirmative statutory duty to disclose
publicly information about its renegotiation of the JVA.
Thus, PEA asserts that the Court must apply the
principle of exhaustion of administrative remedies to
the instant case in view of the failure of petitioner here
to demand initially from PEA the needed information.
The original JVA sought to dispose to AMARI public
lands held by PEA, a government corporation. Under
Section 79 of the Government Auditing Code,26 the
disposition of government lands to private parties
requires public bidding. PEA was under a positive
legal duty to disclose to the public the terms and
conditions for the sale of its lands. The law obligated
PEA to make this public disclosure even without
demand from petitioner or from anyone. PEA failed to
make this public disclosure because the original JVA,
like the Amended JVA, was the result of a negotiated
contract, not of a public bidding. Considering that PEA
had an affirmative statutory duty to make the public
disclosure, and was even in breach of this legal duty,
petitioner had the right to seek direct judicial
intervention.
Moreover, and this alone is determinative of this issue,
the principle of exhaustion of administrative remedies
does not apply when the issue involved is a purely legal
or constitutional question.27 The principal issue in the
instant case is the capacity of AMARI to acquire lands
held by PEA in view of the constitutional ban
prohibiting the alienation of lands of the public domain
to private corporations. We rule that the principle of
exhaustion of administrative remedies does not apply in
the instant case.
Fourth issue: whether petitioner has locus standi to
bring this suit
PEA argues that petitioner has no standing to
institute mandamus proceedings to enforce his
constitutional right to information without a showing
that PEA refused to perform an affirmative duty
imposed on PEA by the Constitution. PEA also claims
that petitioner has not shown that he will suffer any
concrete injury because of the signing or
implementation of the Amended JVA. Thus, there is no
actual controversy requiring the exercise of the power
of judicial review.
The petitioner has standing to bring this taxpayer's suit
because the petition seeks to compel PEA to comply
with its constitutional duties. There are two
constitutional issues involved here. First is the right of
citizens to information on matters of public concern.
Second is the application of a constitutional provision
intended to insure the equitable distribution of
alienable lands of the public domain among Filipino
citizens. The thrust of the first issue is to compel PEA to
disclose publicly information on the sale of government
lands worth billions of pesos, information which the
Constitution and statutory law mandate PEA to disclose.
The thrust of the second issue is to prevent PEA from
alienating hundreds of hectares of alienable lands of the
public domain in violation of the Constitution,
compelling PEA to comply with a constitutional duty to
the nation.
Moreover, the petition raises matters of transcendental
importance to the public. In Chavez v. PCGG,28 the Court
upheld the right of a citizen to bring a taxpayer's suit on
matters of transcendental importance to the public, thus
-
"Besides, petitioner emphasizes, the matter of
recovering the ill-gotten wealth of the Marcoses is an
issue of 'transcendental importance to the public.' He
asserts that ordinary taxpayers have a right to initiate
and prosecute actions questioning the validity of acts or
orders of government agencies or instrumentalities, if
the issues raised are of 'paramount public interest,' and
if they 'immediately affect the social, economic and
moral well being of the people.'
Moreover, the mere fact that he is a citizen satisfies the
requirement of personal interest, when the proceeding
involves the assertion of a public right, such as in this
case. He invokes several decisions of this Court which
have set aside the procedural matter of locus standi,
when the subject of the case involved public interest.
xxx
In Tañada v. Tuvera, the Court asserted that when the
issue concerns a public right and the object of
mandamus is to obtain the enforcement of a public duty,
the people are regarded as the real parties in interest;
and because it is sufficient that petitioner is a citizen
and as such is interested in the execution of the laws, he
need not show that he has any legal or special interest
in the result of the action. In the aforesaid case, the
petitioners sought to enforce their right to be informed
on matters of public concern, a right then recognized in
Section 6, Article IV of the 1973 Constitution, in
connection with the rule that laws in order to be valid
and enforceable must be published in the Official
76
Gazette or otherwise effectively promulgated. In ruling
for the petitioners' legal standing, the Court declared
that the right they sought to be enforced 'is a public
right recognized by no less than the fundamental law of
the land.'
Legaspi v. Civil Service Commission, while reiterating
Tanñ ada, further declared that 'when a mandamus
proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere
fact that petitioner is a citizen and, therefore, part of the
general 'public' which possesses the right.'
Further, in Albano v. Reyes, we said that while
expenditure of public funds may not have been involved
under the questioned contract for the development,
management and operation of the Manila International
Container Terminal, 'public interest [was] definitely
involved considering the important role [of the subject
contract] . . . in the economic development of the
country and the magnitude of the financial
consideration involved.' We concluded that, as a
consequence, the disclosure provision in the
Constitution would constitute sufficient authority for
upholding the petitioner's standing.
Similarly, the instant petition is anchored on the right of
the people to information and access to official records,
documents and papers — a right guaranteed under
Section 7, Article III of the 1987 Constitution. Petitioner,
a former solicitor general, is a Filipino citizen. Because
of the satisfaction of the two basic requisites laid down
by decisional law to sustain petitioner's legal standing,
i.e. (1) the enforcement of a public right (2) espoused by
a Filipino citizen, we rule that the petition at bar should
be allowed."
We rule that since the instant petition, brought by a
citizen, involves the enforcement of constitutional rights
- to information and to the equitable diffusion of natural
resources - matters of transcendental public
importance, the petitioner has the requisite locus standi.
Fifth issue: whether the constitutional right to
information includes official information on on-
going negotiations before a final agreement.
Section 7, Article III of the Constitution explains the
people's right to information on matters of public
concern in this manner:
"Sec. 7. The right of the people to information on
matters of public concern shall be recognized. Access to
official records, and to documents, and papers
pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for
policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law."
(Emphasis supplied)
The State policy of full transparency in all transactions
involving public interest reinforces the people's right to
information on matters of public concern. This State
policy is expressed in Section 28, Article II of the
Constitution, thus:
"Sec. 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." (Emphasis supplied)
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 exercise effectively
other constitutional rights. These twin provisions are
essential to the exercise of freedom of expression. If the
government does not disclose its official acts,
transactions and decisions to citizens, whatever citizens
say, even if expressed without any restraint, will be
speculative and amount to nothing. These twin
provisions are also essential to hold public officials "at
all times x x x accountable to the people,"29 for unless
citizens have the proper information, they cannot hold
public officials accountable for anything. Armed with
the right information, citizens can participate in public
discussions leading to the formulation of government
policies and their effective implementation. An
informed citizenry is essential to the existence and
proper functioning of any democracy. As explained by
the Court in Valmonte v. Belmonte, Jr.30 –
"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."
PEA asserts, citing Chavez v. PCGG,31 that in cases of on-
going negotiations the right to information is limited to
"definite propositions of the government." PEA
maintains the right does not include access to "intra-
agency or inter-agency recommendations or
communications during the stage when common
assertions are still in the process of being formulated or
are in the 'exploratory stage'."
Also, AMARI contends that petitioner cannot invoke the
right at the pre-decisional stage or before the closing of
the transaction. To support its contention, AMARI cites
the following discussion in the 1986 Constitutional
Commission:
"Mr. Suarez. And when we say 'transactions' which
should be distinguished from contracts, agreements, or
treaties or whatever, does the Gentleman refer to the
steps leading to the consummation of the contract, or
does he refer to the contract itself?
Mr. Ople: The 'transactions' used here, I suppose is
generic and therefore, it can cover both steps leading
to a contract and already a consummated contract,
Mr. Presiding Officer.
Mr. Suarez: This contemplates inclusion of
negotiations leading to the consummation of the
transaction.
Mr. Ople: Yes, subject only to reasonable safeguards
on the national interest.
Mr. Suarez: Thank you."32 (Emphasis supplied)
AMARI argues there must first be a consummated
contract before petitioner can invoke the right.
Requiring government officials to reveal their
deliberations at the pre-decisional stage will degrade
the quality of decision-making in government agencies.
Government officials will hesitate to express their real
sentiments during deliberations if there is immediate
public dissemination of their discussions, putting them
under all kinds of pressure before they decide.
We must first distinguish between information the law
on public bidding requires PEA to disclose publicly, and
information the constitutional right to information
requires PEA to release to the public. Before the
consummation of the contract, PEA must, on its own
and without demand from anyone, disclose to the public
matters relating to the disposition of its property. These
include the size, location, technical description and
nature of the property being disposed of, the terms and
conditions of the disposition, the parties qualified to
bid, the minimum price and similar information. PEA
must prepare all these data and disclose them to the
public at the start of the disposition process, long before
the consummation of the contract, because the
Government Auditing Code requires public bidding. If
PEA fails to make this disclosure, any citizen can
77
demand from PEA this information at any time during
the bidding process.
Information, however, on on-going evaluation or
review of bids or proposals being undertaken by the
bidding or review committee is not immediately
accessible under the right to information. While the
evaluation or review is still on-going, there are no
"official acts, transactions, or decisions" on the bids or
proposals. However, once the committee makes
its official recommendation, there arises a "definite
proposition" on the part of the government. From this
moment, the public's right to information attaches, and
any citizen can access all the non-proprietary
information leading to such definite proposition.
In Chavez v. PCGG,33 the Court ruled as follows:
"Considering the intent of the framers of the
Constitution, we believe that it is incumbent upon the
PCGG and its officers, as well as other government
representatives, to disclose sufficient public information
on any proposed settlement they have decided to take
up with the ostensible owners and holders of ill-gotten
wealth. Such information, though, must pertain
to definite propositions of the government, not
necessarily to intra-agency or inter-agency
recommendations or communications during the stage
when common assertions are still in the process of
being formulated or are in the "exploratory" stage.
There is need, of course, to observe the same
restrictions on disclosure of information in general, as
discussed earlier – such as on matters involving national
security, diplomatic or foreign relations, intelligence and
other classified information." (Emphasis supplied)
Contrary to AMARI's contention, the commissioners of
the 1986 Constitutional Commission understood that
the right to information "contemplates inclusion of
negotiations leading to the consummation of the
transaction."Certainly, a consummated contract is not a
requirement for the exercise of the right to information.
Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it
may be too late for the public to expose its
defects.1âwphi1.nêt
Requiring a consummated contract will keep the public
in the dark until the contract, which may be grossly
disadvantageous to the government or even illegal,
becomes a fait accompli. This negates the State policy of
full transparency on matters of public concern, a
situation which the framers of the Constitution could
not have intended. Such a requirement will prevent the
citizenry from participating in the public discussion of
any proposed contract, effectively truncating a basic
right enshrined in the Bill of Rights. We can allow
neither an emasculation of a constitutional right, nor a
retreat by the State of its avowed "policy of full
disclosure of all its transactions involving public
interest."
The right covers three categories of information which
are "matters of public concern," namely: (1) official
records; (2) documents and papers pertaining to official
acts, transactions and decisions; and (3) government
research data used in formulating policies. The first
category refers to any document that is part of the
public records in the custody of government agencies or
officials. The second category refers to documents and
papers recording, evidencing, establishing, confirming,
supporting, justifying or explaining official acts,
transactions or decisions of government agencies or
officials. The third category refers to research data,
whether raw, collated or processed, owned by the
government and used in formulating government
policies.
The information that petitioner may access on the
renegotiation of the JVA includes evaluation reports,
recommendations, legal and expert opinions, minutes of
meetings, terms of reference and other documents
attached to such reports or minutes, all relating to the
JVA. However, the right to information does not compel
PEA to prepare lists, abstracts, summaries and the like
relating to the renegotiation of the JVA.34 The right only
affords access to records, documents and papers, which
means the opportunity to inspect and copy them. One
who exercises the right must copy the records,
documents and papers at his expense. The exercise of
the right is also subject to reasonable regulations to
protect the integrity of the public records and to
minimize disruption to government operations, like
rules specifying when and how to conduct the
inspection and copying.35
The right to information, however, does not extend to
matters recognized as privileged information under the
separation of powers.36 The right does not also apply to
information on military and diplomatic secrets,
information affecting national security, and information
on investigations of crimes by law enforcement agencies
before the prosecution of the accused, which courts
have long recognized as confidential.37 The right may
also be subject to other limitations that Congress may
impose by law.
There is no claim by PEA that the information
demanded by petitioner is privileged information
rooted in the separation of powers. The information
does not cover Presidential conversations,
correspondences, or discussions during closed-door
Cabinet meetings which, like internal deliberations of
the Supreme Court and other collegiate courts, or
executive sessions of either house of Congress,38 are
recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and
assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial
power.39 This is not the situation in the instant case.
We rule, therefore, that the constitutional right to
information includes official information on on-going
negotiationsbefore a final contract. The information,
however, must constitute definite propositions by the
government and should not cover recognized exceptions
like privileged information, military and diplomatic
secrets and similar matters affecting national security
and public order.40 Congress has also prescribed other
limitations on the right to information in several
legislations.41
Sixth issue: whether stipulations in the Amended JVA
for the transfer to AMARI of lands, reclaimed or to be
reclaimed, violate the Constitution.
The Regalian Doctrine
The ownership of lands reclaimed from foreshore and
submerged areas is rooted in the Regalian doctrine
which holds that the State owns all lands and waters of
the public domain. Upon the Spanish conquest of the
Philippines, ownership of all "lands, territories and
possessions" in the Philippines passed to the Spanish
Crown.42 The King, as the sovereign ruler and
representative of the people, acquired and owned all
lands and territories in the Philippines except those he
disposed of by grant or sale to private individuals.
The 1935, 1973 and 1987 Constitutions adopted the
Regalian doctrine substituting, however, the State, in
lieu of the King, as the owner of all lands and waters of
the public domain. The Regalian doctrine is the
foundation of the time-honored principle of land
ownership that "all lands that were not acquired from
the Government, either by purchase or by grant, belong
to the public domain."43 Article 339 of the Civil Code of
78
1889, which is now Article 420 of the Civil Code of 1950,
incorporated the Regalian doctrine.
Ownership and Disposition of Reclaimed Lands
The Spanish Law of Waters of 1866 was the first
statutory law governing the ownership and disposition
of reclaimed lands in the Philippines. On May 18, 1907,
the Philippine Commission enacted Act No. 1654 which
provided for the lease, but not the sale, of reclaimed
lands of the government to corporations and
individuals. Later, on November 29, 1919, the
Philippine Legislature approved Act No. 2874, the Public
Land Act, which authorized the lease, but not the sale,
of reclaimed lands of the government to corporations
and individuals. On November 7, 1936, the National
Assembly passed Commonwealth Act No. 141, also
known as the Public Land Act, whichauthorized the
lease, but not the sale, of reclaimed lands of the
government to corporations and individuals. CA No.
141 continues to this day as the general law governing
the classification and disposition of lands of the public
domain.
The Spanish Law of Waters of 1866 and the Civil Code
of 1889
Under the Spanish Law of Waters of 1866, the shores,
bays, coves, inlets and all waters within the maritime
zone of the Spanish territory belonged to the public
domain for public use.44 The Spanish Law of Waters of
1866 allowed the reclamation of the sea under Article 5,
which provided as follows:
"Article 5. Lands reclaimed from the sea in consequence
of works constructed by the State, or by the provinces,
pueblos or private persons, with proper permission,
shall become the property of the party constructing
such works, unless otherwise provided by the terms of
the grant of authority."
Under the Spanish Law of Waters, land reclaimed from
the sea belonged to the party undertaking the
reclamation, provided the government issued the
necessary permit and did not reserve ownership of the
reclaimed land to the State.
Article 339 of the Civil Code of 1889 defined property of
public dominion as follows:
"Art. 339. Property of public dominion is –
1. That devoted to public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the
State, riverbanks, shores, roadsteads, and that of a
similar character;
2. That belonging exclusively to the State which, without
being of general public use, is employed in some public
service, or in the development of the national wealth,
such as walls, fortresses, and other works for the
defense of the territory, and mines, until granted to
private individuals."
Property devoted to public use referred to property
open for use by the public. In contrast, property devoted
to public service referred to property used for some
specific public service and open only to those
authorized to use the property.
Property of public dominion referred not only to
property devoted to public use, but also to property not
so used but employed to develop the national wealth.
This class of property constituted property of public
dominion although employed for some economic or
commercial activity to increase the national wealth.
Article 341 of the Civil Code of 1889 governed the re-
classification of property of public dominion into
private property, to wit:
"Art. 341. Property of public dominion, when no longer
devoted to public use or to the defense of the territory,
shall become a part of the private property of the State."
This provision, however, was not self-executing. The
legislature, or the executive department pursuant to
law, must declare the property no longer needed for
public use or territorial defense before the government
could lease or alienate the property to private parties. 45
Act No. 1654 of the Philippine Commission
On May 8, 1907, the Philippine Commission enacted Act
No. 1654 which regulated the lease of reclaimed and
foreshore lands. The salient provisions of this law were
as follows:
"Section 1. The control and disposition of the
foreshore as defined in existing law, and the title to all
Government or public lands made or reclaimed by
the Government by dredging or filling or otherwise
throughout the Philippine Islands, shall be retained by
the Government without prejudice to vested rights and
without prejudice to rights conceded to the City of
Manila in the Luneta Extension.
Section 2. (a) The Secretary of the Interior shall cause
all Government or public lands made or reclaimed by
the Government by dredging or filling or otherwise to
be divided into lots or blocks, with the necessary streets
and alleyways located thereon, and shall cause plats and
plans of such surveys to be prepared and filed with the
Bureau of Lands.
(b) Upon completion of such plats and plans
the Governor-General shall give notice to the public
that such parts of the lands so made or reclaimed as
are not needed for public purposes will be leased for
commercial and business purposes, x x x.
xxx
(e) The leases above provided for shall be disposed of
to the highest and best bidder therefore, subject to
such regulations and safeguards as the Governor-
General may by executive order prescribe." (Emphasis
supplied)
Act No. 1654 mandated that the government should
retain title to all lands reclaimed by the government.
The Act also vested in the government control and
disposition of foreshore lands. Private parties could
lease lands reclaimed by the government only if these
lands were no longer needed for public purpose. Act No.
1654 mandatedpublic bidding in the lease of
government reclaimed lands. Act No. 1654 made
government reclaimed lands sui generis in that unlike
other public lands which the government could sell to
private parties, these reclaimed lands were available
only for lease to private parties.
Act No. 1654, however, did not repeal Section 5 of the
Spanish Law of Waters of 1866. Act No. 1654 did not
prohibit private parties from reclaiming parts of the sea
under Section 5 of the Spanish Law of Waters. Lands
reclaimed from the sea by private parties with
government permission remained private lands.
Act No. 2874 of the Philippine Legislature
On November 29, 1919, the Philippine Legislature
enacted Act No. 2874, the Public Land Act.46 The salient
provisions of Act No. 2874, on reclaimed lands, were as
follows:
"Sec. 6. The Governor-General, upon the
recommendation of the Secretary of Agriculture and
Natural Resources, shall from time to time classify
the lands of the public domain into –
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands, x x x.
Sec. 7. For the purposes of the government and
disposition of alienable or disposable public lands, the
Governor-General, upon recommendation by the
Secretary of Agriculture and Natural Resources, shall
from time to time declare what lands are open to
disposition or concession under this Act."
Sec. 8. Only those lands shall be declared open to
disposition or concession which have been officially
delimited or classified x x x.
xxx
79
Sec. 55. Any tract of land of the public domain which,
being neither timber nor mineral land, shall be
classified as suitable for residential purposes or for
commercial, industrial, or other productive purposes
other than agricultural purposes, and shall be open to
disposition or concession, shall be disposed of under
the provisions of this chapter, and not otherwise.
Sec. 56. The lands disposable under this title shall be
classified as follows:
(a) Lands reclaimed by the Government by dredging,
filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water
bordering upon the shores or banks of navigable lakes
or rivers;
(d) Lands not included in any of the foregoing classes.
x x x.
Sec. 58. The lands comprised in classes (a), (b), and
(c) of section fifty-six shall be disposed of to private
parties by lease only and not otherwise, as soon as the
Governor-General, upon recommendation by the
Secretary of Agriculture and Natural Resources, shall
declare that the same are not necessary for the
public service and are open to disposition under this
chapter. The lands included in class (d) may be
disposed of by sale or lease under the provisions of
this Act." (Emphasis supplied)
Section 6 of Act No. 2874 authorized the Governor-
General to "classify lands of the public domain into x x x
alienable or disposable"47 lands. Section 7 of the Act
empowered the Governor-General to "declare what
lands are open to disposition or concession." Section 8
of the Act limited alienable or disposable lands only to
those lands which have been "officially delimited and
classified."
Section 56 of Act No. 2874 stated that lands "disposable
under this title48 shall be classified" as government
reclaimed, foreshore and marshy lands, as well as other
lands. All these lands, however, must be suitable for
residential, commercial, industrial or other
productive non-agricultural purposes. These
provisions vested upon the Governor-General the power
to classify inalienable lands of the public domain into
disposable lands of the public domain. These provisions
also empowered the Governor-General to classify
further such disposable lands of the public domain into
government reclaimed, foreshore or marshy lands of the
public domain, as well as other non-agricultural lands.
Section 58 of Act No. 2874 categorically mandated that
disposable lands of the public domain classified as
government reclaimed, foreshore and marshy
lands "shall be disposed of to private parties by lease
only and not otherwise." The Governor-General, before
allowing the lease of these lands to private parties, must
formally declare that the lands were "not necessary for
the public service." Act No. 2874 reiterated the State
policy to lease and not to sell government reclaimed,
foreshore and marshy lands of the public domain, a
policy first enunciated in 1907 in Act No. 1654.
Government reclaimed, foreshore and marshy lands
remained sui generis, as the only alienable or
disposable lands of the public domain that the
government could not sell to private parties.
The rationale behind this State policy is obvious.
Government reclaimed, foreshore and marshy public
lands for non-agricultural purposes retain their
inherent potential as areas for public service. This is the
reason the government prohibited the sale, and only
allowed the lease, of these lands to private parties. The
State always reserved these lands for some future public
service.
Act No. 2874 did not authorize the reclassification of
government reclaimed, foreshore and marshy lands into
other non-agricultural lands under Section 56 (d).
Lands falling under Section 56 (d) were the only lands
for non-agricultural purposes the government could sell
to private parties. Thus, under Act No. 2874, the
government could not sell government reclaimed,
foreshore and marshy lands to private parties, unless
the legislature passed a law allowing their sale.49
Act No. 2874 did not prohibit private parties from
reclaiming parts of the sea pursuant to Section 5 of the
Spanish Law of Waters of 1866. Lands reclaimed from
the sea by private parties with government permission
remained private lands.
Dispositions under the 1935 Constitution
On May 14, 1935, the 1935 Constitution took effect
upon its ratification by the Filipino people. The 1935
Constitution, in adopting the Regalian doctrine, declared
in Section 1, Article XIII, that –
"Section 1. All agricultural, timber, and mineral lands of
the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy and
other natural resources of the Philippines belong to the
State, and their disposition, exploitation, development,
or utilization shall be limited to citizens of the
Philippines or to corporations or associations at least
sixty per centum of the capital of which is owned by
such citizens, subject to any existing right, grant, lease,
or concession at the time of the inauguration of the
Government established under this
Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and
no license, concession, or lease for the exploitation,
development, or utilization of any of the natural
resources shall be granted for a period exceeding
twenty-five years, renewable for another twenty-five
years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial
use may be the measure and limit of the grant."
(Emphasis supplied)
The 1935 Constitution barred the alienation of all
natural resources except public agricultural lands,
which were the only natural resources the State could
alienate. Thus, foreshore lands, considered part of the
State's natural resources, became inalienable by
constitutional fiat, available only for lease for 25 years,
renewable for another 25 years. The government could
alienate foreshore lands only after these lands were
reclaimed and classified as alienable agricultural lands
of the public domain. Government reclaimed and
marshy lands of the public domain, being neither timber
nor mineral lands, fell under the classification of public
agricultural lands.50 However, government reclaimed
and marshy lands, although subject to classification as
disposable public agricultural lands, could only be
leased and not sold to private parties because of Act No.
2874.
The prohibition on private parties from acquiring
ownership of government reclaimed and marshy lands
of the public domain was only a statutory prohibition
and the legislature could therefore remove such
prohibition. The 1935 Constitution did not prohibit
individuals and corporations from acquiring
government reclaimed and marshy lands of the public
domain that were classified as agricultural lands under
existing public land laws. Section 2, Article XIII of the
1935 Constitution provided as follows:
"Section 2. No private corporation or association may
acquire, lease, or hold public agricultural lands in
excess of one thousand and twenty four hectares, nor
may any individual acquire such lands by purchase
in excess of one hundred and forty hectares, or by
lease in excess of one thousand and twenty-four
hectares, or by homestead in excess of twenty-four
80
hectares. Lands adapted to grazing, not exceeding two
thousand hectares, may be leased to an individual,
private corporation, or association." (Emphasis
supplied)
Still, after the effectivity of the 1935 Constitution, the
legislature did not repeal Section 58 of Act No. 2874 to
open for sale to private parties government reclaimed
and marshy lands of the public domain. On the contrary,
the legislature continued the long established State
policy of retaining for the government title and
ownership of government reclaimed and marshy lands
of the public domain.
Commonwealth Act No. 141 of the Philippine National
Assembly
On November 7, 1936, the National Assembly approved
Commonwealth Act No. 141, also known as the Public
Land Act, which compiled the then existing laws on
lands of the public domain. CA No. 141, as amended,
remains to this day the existing general law governing
the classification and disposition of lands of the public
domain other than timber and mineral lands.51
Section 6 of CA No. 141 empowers the President to
classify lands of the public domain into "alienable or
disposable"52 lands of the public domain, which prior to
such classification are inalienable and outside the
commerce of man. Section 7 of CA No. 141 authorizes
the President to "declare what lands are open to
disposition or concession." Section 8 of CA No. 141
states that the government can declare open for
disposition or concession only lands that are "officially
delimited and classified." Sections 6, 7 and 8 of CA No.
141 read as follows:
"Sec. 6. The President, upon the recommendation of
the Secretary of Agriculture and Commerce, shall
from time to time classify the lands of the public
domain into –
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands,
and may at any time and in like manner transfer such
lands from one class to another,53 for the purpose of
their administration and disposition.
Sec. 7. For the purposes of the administration and
disposition of alienable or disposable public lands, the
President, upon recommendation by the Secretary of
Agriculture and Commerce, shall from time to time
declare what lands are open to disposition or
concession under this Act.
Sec. 8. Only those lands shall be declared open to
disposition or concession which have been officially
delimited and classified and, when practicable,
surveyed, and which have not been reserved for
public or quasi-public uses, nor appropriated by the
Government, nor in any manner become private
property, nor those on which a private right authorized
and recognized by this Act or any other valid law may be
claimed, or which, having been reserved or
appropriated, have ceased to be so. x x x."
Thus, before the government could alienate or dispose
of lands of the public domain, the President must first
officially classify these lands as alienable or disposable,
and then declare them open to disposition or
concession. There must be no law reserving these lands
for public or quasi-public uses.
The salient provisions of CA No. 141, on government
reclaimed, foreshore and marshy lands of the public
domain, are as follows:
"Sec. 58. Any tract of land of the public domain which,
being neither timber nor mineral land, is intended to
be used for residential purposes or for commercial,
industrial, or other productive purposes other than
agricultural, and is open to disposition or concession,
shall be disposed of under the provisions of this
chapter and not otherwise.
Sec. 59. The lands disposable under this title shall be
classified as follows:
(a) Lands reclaimed by the Government by dredging,
filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water
bordering upon the shores or banks of navigable lakes
or rivers;
(d) Lands not included in any of the foregoing classes.
Sec. 60. Any tract of land comprised under this title may
be leased or sold, as the case may be, to any person,
corporation, or association authorized to purchase or
lease public lands for agricultural purposes. x x x.
Sec. 61. The lands comprised in classes (a), (b), and
(c) of section fifty-nine shall be disposed of to private
parties by lease only and not otherwise, as soon as the
President, upon recommendation by the Secretary of
Agriculture, shall declare that the same are not
necessary for the public service and are open to
disposition under this chapter. The lands included in
class (d) may be disposed of by sale or lease under
the provisions of this Act." (Emphasis supplied)
Section 61 of CA No. 141 readopted, after the effectivity
of the 1935 Constitution, Section 58 of Act No. 2874
prohibiting the sale of government reclaimed, foreshore
and marshy disposable lands of the public domain. All
these lands are intended for residential, commercial,
industrial or other non-agricultural purposes. As before,
Section 61 allowed only the lease of such lands to
private parties. The government could sell to private
parties only lands falling under Section 59 (d) of CA No.
141, or those lands for non-agricultural purposes not
classified as government reclaimed, foreshore and
marshy disposable lands of the public domain.
Foreshore lands, however, became inalienable under the
1935 Constitution which only allowed the lease of these
lands to qualified private parties.
Section 58 of CA No. 141 expressly states that
disposable lands of the public domain intended for
residential, commercial, industrial or other productive
purposes other than agricultural "shall be disposed of
under the provisions of this chapter and not
otherwise." Under Section 10 of CA No. 141, the term
"disposition" includes lease of the land. Any disposition
of government reclaimed, foreshore and marshy
disposable lands for non-agricultural purposes must
comply with Chapter IX, Title III of CA No. 141, 54 unless
a subsequent law amended or repealed these
provisions.
In his concurring opinion in the landmark case
of Republic Real Estate Corporation v. Court of
Appeals,55Justice Reynato S. Puno summarized
succinctly the law on this matter, as follows:
"Foreshore lands are lands of public dominion intended
for public use. So too are lands reclaimed by the
government by dredging, filling, or other means. Act
1654 mandated that the control and disposition of the
foreshore and lands under water remained in the
national government. Said law allowed only the 'leasing'
of reclaimed land. The Public Land Acts of 1919 and
1936 also declared that the foreshore and lands
reclaimed by the government were to be "disposed of to
private parties by lease only and not otherwise." Before
leasing, however, the Governor-General, upon
recommendation of the Secretary of Agriculture and
Natural Resources, had first to determine that the land
reclaimed was not necessary for the public service. This
requisite must have been met before the land could be
disposed of. But even then, the foreshore and lands
under water were not to be alienated and sold to
private parties. The disposition of the reclaimed land
81
was only by lease. The land remained property of the
State." (Emphasis supplied)
As observed by Justice Puno in his concurring opinion,
"Commonwealth Act No. 141 has remained in effect at
present."
The State policy prohibiting the sale to private parties of
government reclaimed, foreshore and marshy alienable
lands of the public domain, first implemented in 1907
was thus reaffirmed in CA No. 141 after the 1935
Constitution took effect. The prohibition on the sale of
foreshore lands, however, became a constitutional edict
under the 1935 Constitution. Foreshore lands became
inalienable as natural resources of the State, unless
reclaimed by the government and classified as
agricultural lands of the public domain, in which case
they would fall under the classification of government
reclaimed lands.
After the effectivity of the 1935 Constitution,
government reclaimed and marshy disposable lands of
the public domain continued to be only leased and not
sold to private parties.56 These lands remained sui
generis, as the only alienable or disposable lands of the
public domain the government could not sell to private
parties.
Since then and until now, the only way the government
can sell to private parties government reclaimed and
marshy disposable lands of the public domain is for the
legislature to pass a law authorizing such sale. CA No.
141 does not authorize the President to reclassify
government reclaimed and marshy lands into other
non-agricultural lands under Section 59 (d). Lands
classified under Section 59 (d) are the only alienable or
disposable lands for non-agricultural purposes that the
government could sell to private parties.
Moreover, Section 60 of CA No. 141 expressly requires
congressional authority before lands under Section 59
that the government previously transferred to
government units or entities could be sold to private
parties. Section 60 of CA No. 141 declares that –
"Sec. 60. x x x The area so leased or sold shall be such as
shall, in the judgment of the Secretary of Agriculture
and Natural Resources, be reasonably necessary for the
purposes for which such sale or lease is requested, and
shall not exceed one hundred and forty-four hectares:
Provided, however, That this limitation shall not apply
to grants, donations, or transfers made to a province,
municipality or branch or subdivision of the
Government for the purposes deemed by said entities
conducive to the public interest; but the land so
granted, donated, or transferred to a province,
municipality or branch or subdivision of the
Government shall not be alienated, encumbered, or
otherwise disposed of in a manner affecting its title,
except when authorized by Congress: x x x." (Emphasis
supplied)
The congressional authority required in Section 60 of
CA No. 141 mirrors the legislative authority required in
Section 56 of Act No. 2874.
One reason for the congressional authority is that
Section 60 of CA No. 141 exempted government units
and entities from the maximum area of public lands that
could be acquired from the State. These government
units and entities should not just turn around and sell
these lands to private parties in violation of
constitutional or statutory limitations. Otherwise, the
transfer of lands for non-agricultural purposes to
government units and entities could be used to
circumvent constitutional limitations on ownership of
alienable or disposable lands of the public domain. In
the same manner, such transfers could also be used to
evade the statutory prohibition in CA No. 141 on the
sale of government reclaimed and marshy lands of the
public domain to private parties. Section 60 of CA No.
141 constitutes by operation of law a lien on these
lands.57
In case of sale or lease of disposable lands of the public
domain falling under Section 59 of CA No. 141, Sections
63 and 67 require a public bidding. Sections 63 and 67
of CA No. 141 provide as follows:
"Sec. 63. Whenever it is decided that lands covered by
this chapter are not needed for public purposes, the
Director of Lands shall ask the Secretary of Agriculture
and Commerce (now the Secretary of Natural
Resources) for authority to dispose of the same. Upon
receipt of such authority, the Director of Lands shall give
notice by public advertisement in the same manner as in
the case of leases or sales of agricultural public land, x x
x.
Sec. 67. The lease or sale shall be made by oral
bidding; and adjudication shall be made to the
highest bidder. x x x." (Emphasis supplied)
Thus, CA No. 141 mandates the Government to put to
public auction all leases or sales of alienable or
disposable lands of the public domain.58
Like Act No. 1654 and Act No. 2874 before it, CA No. 141
did not repeal Section 5 of the Spanish Law of Waters of
1866. Private parties could still reclaim portions of the
sea with government permission. However,
the reclaimed land could become private land only if
classified as alienable agricultural land of the public
domain open to disposition under CA No. 141. The
1935 Constitution prohibited the alienation of all
natural resources except public agricultural lands.
The Civil Code of 1950
The Civil Code of 1950 readopted substantially the
definition of property of public dominion found in the
Civil Code of 1889. Articles 420 and 422 of the Civil
Code of 1950 state that –
"Art. 420. The following things are property of public
dominion:
(1) Those intended for public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the
State, banks, shores, roadsteads, and others of similar
character;
(2) Those which belong to the State, without being for
public use, and are intended for some public service or
for the development of the national wealth.
x x x.
Art. 422. Property of public dominion, when no longer
intended for public use or for public service, shall form
part of the patrimonial property of the State."
Again, the government must formally declare that the
property of public dominion is no longer needed for
public use or public service, before the same could be
classified as patrimonial property of the State.59 In the
case of government reclaimed and marshy lands of the
public domain, the declaration of their being disposable,
as well as the manner of their disposition, is governed
by the applicable provisions of CA No. 141.
Like the Civil Code of 1889, the Civil Code of 1950
included as property of public dominion those
properties of the State which, without being for public
use, are intended for public service or the
"development of the national wealth." Thus,
government reclaimed and marshy lands of the State,
even if not employed for public use or public service, if
developed to enhance the national wealth, are classified
as property of public dominion.
Dispositions under the 1973 Constitution
The 1973 Constitution, which took effect on January 17,
1973, likewise adopted the Regalian doctrine. Section 8,
Article XIV of the 1973 Constitution stated that –
"Sec. 8. All lands of the public domain, waters, minerals,
coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, wildlife, and other natural
resources of the Philippines belong to the State. With
the exception of agricultural, industrial or
82
commercial, residential, and resettlement lands of
the public domain, natural resources shall not be
alienated, and no license, concession, or lease for the
exploration, development, exploitation, or utilization of
any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for not
more than twenty-five years, except as to water rights
for irrigation, water supply, fisheries, or industrial uses
other than the development of water power, in which
cases, beneficial use may be the measure and the limit of
the grant." (Emphasis supplied)
The 1973 Constitution prohibited the alienation of all
natural resources with the exception of "agricultural,
industrial or commercial, residential, and resettlement
lands of the public domain." In contrast, the 1935
Constitution barred the alienation of all natural
resources except "public agricultural lands." However,
the term "public agricultural lands" in the 1935
Constitution encompassed industrial, commercial,
residential and resettlement lands of the public
domain.60 If the land of public domain were neither
timber nor mineral land, it would fall under the
classification of agricultural land of the public
domain. Both the 1935 and 1973 Constitutions,
therefore, prohibited the alienation of all natural
resources except agricultural lands of the public
domain.
The 1973 Constitution, however, limited the alienation
of lands of the public domain to individuals who were
citizens of the Philippines. Private corporations, even if
wholly owned by Philippine citizens, were no longer
allowed to acquire alienable lands of the public domain
unlike in the 1935 Constitution. Section 11, Article XIV
of the 1973 Constitution declared that –
"Sec. 11. The Batasang Pambansa, taking into account
conservation, ecological, and development
requirements of the natural resources, shall determine
by law the size of land of the public domain which may
be developed, held or acquired by, or leased to, any
qualified individual, corporation, or association, and the
conditions therefor. No private corporation or
association may hold alienable lands of the public
domain except by lease not to exceed one thousand
hectares in area nor may any citizen hold such lands by
lease in excess of five hundred hectares or acquire by
purchase, homestead or grant, in excess of twenty-four
hectares. No private corporation or association may
hold by lease, concession, license or permit, timber or
forest lands and other timber or forest resources in
excess of one hundred thousand hectares. However,
such area may be increased by the Batasang Pambansa
upon recommendation of the National Economic and
Development Authority." (Emphasis supplied)
Thus, under the 1973 Constitution, private corporations
could hold alienable lands of the public domain only
through lease. Only individuals could now acquire
alienable lands of the public domain, and private
corporations became absolutely barred from
acquiring any kind of alienable land of the public
domain. The constitutional ban extended to all kinds of
alienable lands of the public domain, while the statutory
ban under CA No. 141 applied only to government
reclaimed, foreshore and marshy alienable lands of the
public domain.
PD No. 1084 Creating the Public Estates Authority
On February 4, 1977, then President Ferdinand Marcos
issued Presidential Decree No. 1084 creating PEA, a
wholly government owned and controlled corporation
with a special charter. Sections 4 and 8 of PD No. 1084,
vests PEA with the following purposes and powers:
"Sec. 4. Purpose. The Authority is hereby created for the
following purposes:
(a) To reclaim land, including foreshore and
submerged areas, by dredging, filling or other
means, or to acquire reclaimed land;
(b) To develop, improve, acquire, administer, deal in,
subdivide, dispose, lease and sell any and all kinds of
lands, buildings, estates and other forms of real
property, owned, managed, controlled and/or operated
by the government;
(c) To provide for, operate or administer such service as
may be necessary for the efficient, economical and
beneficial utilization of the above properties.
Sec. 5. Powers and functions of the Authority. The
Authority shall, in carrying out the purposes for which it
is created, have the following powers and functions:
(a)To prescribe its by-laws.
xxx
(i) To hold lands of the public domain in excess of the
area permitted to private corporations by statute.
(j) To reclaim lands and to construct work across, or
otherwise, any stream, watercourse, canal, ditch, flume
x x x.
xxx
(o) To perform such acts and exercise such functions as
may be necessary for the attainment of the purposes
and objectives herein specified." (Emphasis supplied)
PD No. 1084 authorizes PEA to reclaim both foreshore
and submerged areas of the public domain. Foreshore
areas are those covered and uncovered by the ebb and
flow of the tide.61 Submerged areas are those
permanently under water regardless of the ebb and flow
of the tide.62 Foreshore and submerged areas
indisputably belong to the public domain63 and are
inalienable unless reclaimed, classified as alienable
lands open to disposition, and further declared no
longer needed for public service.
The ban in the 1973 Constitution on private
corporations from acquiring alienable lands of the
public domain did not apply to PEA since it was then,
and until today, a fully owned government corporation.
The constitutional ban applied then, as it still applies
now, only to "private corporations and associations." PD
No. 1084 expressly empowers PEA "to hold lands of
the public domain" even "in excess of the area
permitted to private corporations by statute." Thus,
PEA can hold title to private lands, as well as title to
lands of the public domain.
In order for PEA to sell its reclaimed foreshore and
submerged alienable lands of the public domain, there
must be legislative authority empowering PEA to sell
these lands. This legislative authority is necessary in
view of Section 60 of CA No.141, which states –
"Sec. 60. x x x; but the land so granted, donated or
transferred to a province, municipality, or branch or
subdivision of the Government shall not be alienated,
encumbered or otherwise disposed of in a manner
affecting its title, except when authorized by Congress;
x x x." (Emphasis supplied)
Without such legislative authority, PEA could not sell
but only lease its reclaimed foreshore and submerged
alienable lands of the public domain. Nevertheless, any
legislative authority granted to PEA to sell its reclaimed
alienable lands of the public domain would be subject to
the constitutional ban on private corporations from
acquiring alienable lands of the public domain. Hence,
such legislative authority could only benefit private
individuals.
Dispositions under the 1987 Constitution
The 1987 Constitution, like the 1935 and 1973
Constitutions before it, has adopted the Regalian
doctrine. The 1987 Constitution declares that all natural
resources are "owned by the State," and except for
alienable agricultural lands of the public domain,
natural resources cannot be alienated. Sections 2 and 3,
Article XII of the 1987 Constitution state that –
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"Section 2. All 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 other natural resources
are owned by the State. With the exception of
agricultural lands, all other natural resources shall
not be alienated. The exploration, development, and
utilization of natural resources shall be under the full
control and supervision of the State. x x x.
Section 3. Lands of the public domain are classified into
agricultural, forest or timber, mineral lands, and
national parks. Agricultural lands of the public domain
may be further classified by law according to the uses
which they may be devoted. Alienable lands of the
public domain shall be limited to agricultural lands.
Private corporations or associations may not hold
such alienable lands of the public domain except by
lease, for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and
not to exceed one thousand hectares in area. Citizens
of the Philippines may lease not more than five hundred
hectares, or acquire not more than twelve hectares
thereof by purchase, homestead, or grant.
Taking into account the requirements of conservation,
ecology, and development, and subject to the
requirements of agrarian reform, the Congress shall
determine, by law, the size of lands of the public domain
which may be acquired, developed, held, or leased and
the conditions therefor." (Emphasis supplied)
The 1987 Constitution continues the State policy in the
1973 Constitution banning private corporations
fromacquiring any kind of alienable land of the
public domain. Like the 1973 Constitution, the 1987
Constitution allows private corporations to hold
alienable lands of the public domain only through
lease. As in the 1935 and 1973 Constitutions, the
general law governing the lease to private corporations
of reclaimed, foreshore and marshy alienable lands of
the public domain is still CA No. 141.
The Rationale behind the Constitutional Ban
The rationale behind the constitutional ban on
corporations from acquiring, except through lease,
alienable lands of the public domain is not well
understood. During the deliberations of the 1986
Constitutional Commission, the commissioners probed
the rationale behind this ban, thus:
"FR. BERNAS: Mr. Vice-President, my questions have
reference to page 3, line 5 which says:
`No private corporation or association may hold
alienable lands of the public domain except by lease, not
to exceed one thousand hectares in area.'
If we recall, this provision did not exist under the 1935
Constitution, but this was introduced in the 1973
Constitution. In effect, it prohibits private corporations
from acquiring alienable public lands. But it has not
been very clear in jurisprudence what the reason for
this is. In some of the cases decided in 1982 and
1983, it was indicated that the purpose of this is to
prevent large landholdings. Is that the intent of this
provision?
MR. VILLEGAS: I think that is the spirit of the provision.
FR. BERNAS: In existing decisions involving the Iglesia
ni Cristo, there were instances where the Iglesia ni
Cristo was not allowed to acquire a mere 313-square
meter land where a chapel stood because the Supreme
Court said it would be in violation of this." (Emphasis
supplied)
In Ayog v. Cusi,64 the Court explained the rationale
behind this constitutional ban in this way:
"Indeed, one purpose of the constitutional prohibition
against purchases of public agricultural lands by private
corporations is to equitably diffuse land ownership or to
encourage 'owner-cultivatorship and the economic
family-size farm' and to prevent a recurrence of cases
like the instant case. Huge landholdings by corporations
or private persons had spawned social unrest."
However, if the constitutional intent is to prevent huge
landholdings, the Constitution could have simply limited
the size of alienable lands of the public domain that
corporations could acquire. The Constitution could have
followed the limitations on individuals, who could
acquire not more than 24 hectares of alienable lands of
the public domain under the 1973 Constitution, and not
more than 12 hectares under the 1987 Constitution.
If the constitutional intent is to encourage economic
family-size farms, placing the land in the name of a
corporation would be more effective in preventing the
break-up of farmlands. If the farmland is registered in
the name of a corporation, upon the death of the owner,
his heirs would inherit shares in the corporation instead
of subdivided parcels of the farmland. This would
prevent the continuing break-up of farmlands into
smaller and smaller plots from one generation to the
next.
In actual practice, the constitutional ban strengthens the
constitutional limitation on individuals from acquiring
more than the allowed area of alienable lands of the
public domain. Without the constitutional ban,
individuals who already acquired the maximum area of
alienable lands of the public domain could easily set up
corporations to acquire more alienable public lands. An
individual could own as many corporations as his
means would allow him. An individual could even hide
his ownership of a corporation by putting his nominees
as stockholders of the corporation. The corporation is a
convenient vehicle to circumvent the constitutional
limitation on acquisition by individuals of alienable
lands of the public domain.
The constitutional intent, under the 1973 and 1987
Constitutions, is to transfer ownership of only a limited
area of alienable land of the public domain to a qualified
individual. This constitutional intent is safeguarded by
the provision prohibiting corporations from acquiring
alienable lands of the public domain, since the vehicle to
circumvent the constitutional intent is removed. The
available alienable public lands are gradually decreasing
in the face of an ever-growing population. The most
effective way to insure faithful adherence to this
constitutional intent is to grant or sell alienable lands of
the public domain only to individuals. This, it would
seem, is the practical benefit arising from the
constitutional ban.
The Amended Joint Venture Agreement
The subject matter of the Amended JVA, as stated in its
second Whereas clause, consists of three properties,
namely:
1. "[T]hree partially reclaimed and substantially eroded
islands along Emilio Aguinaldo Boulevard in Paranaque
and Las Pinas, Metro Manila, with a combined titled
area of 1,578,441 square meters;"
2. "[A]nother area of 2,421,559 square meters
contiguous to the three islands;" and
3. "[A]t AMARI's option as approved by PEA, an
additional 350 hectares more or less to regularize the
configuration of the reclaimed area."65
PEA confirms that the Amended JVA involves "the
development of the Freedom Islands and further
reclamation of about 250 hectares x x x," plus an option
"granted to AMARI to subsequently reclaim another 350
hectares x x x."66
In short, the Amended JVA covers a reclamation area of
750 hectares. Only 157.84 hectares of the 750-hectare
reclamation project have been reclaimed, and the
rest of the 592.15 hectares are still submerged areas
forming part of Manila Bay.
84
Under the Amended JVA, AMARI will reimburse PEA the
sum of P1,894,129,200.00 for PEA's "actual cost" in
partially reclaiming the Freedom Islands. AMARI will
also complete, at its own expense, the reclamation of the
Freedom Islands. AMARI will further shoulder all the
reclamation costs of all the other areas, totaling 592.15
hectares, still to be reclaimed. AMARI and PEA will
share, in the proportion of 70 percent and 30 percent,
respectively, the total net usable area which is defined in
the Amended JVA as the total reclaimed area less 30
percent earmarked for common areas. Title to AMARI's
share in the net usable area, totaling 367.5 hectares, will
be issued in the name of AMARI. Section 5.2 (c) of the
Amended JVA provides that –
"x x x, PEA shall have the duty to execute without delay
the necessary deed of transfer or conveyance of the title
pertaining to AMARI's Land share based on the Land
Allocation Plan. PEA, when requested in writing by
AMARI, shall then cause the issuance and delivery of
the proper certificates of title covering AMARI's Land
Share in the name of AMARI, x x x; provided, that if
more than seventy percent (70%) of the titled area at
any given time pertains to AMARI, PEA shall deliver to
AMARI only seventy percent (70%) of the titles
pertaining to AMARI, until such time when a
corresponding proportionate area of additional land
pertaining to PEA has been titled." (Emphasis supplied)
Indisputably, under the Amended JVA AMARI will
acquire and own a maximum of 367.5 hectares of
reclaimed land which will be titled in its name.
To implement the Amended JVA, PEA delegated to the
unincorporated PEA-AMARI joint venture PEA's
statutory authority, rights and privileges to reclaim
foreshore and submerged areas in Manila Bay. Section
3.2.a of the Amended JVA states that –
"PEA hereby contributes to the joint venture its rights
and privileges to perform Rawland Reclamation and
Horizontal Development as well as own the Reclamation
Area, thereby granting the Joint Venture the full and
exclusive right, authority and privilege to undertake the
Project in accordance with the Master Development
Plan."
The Amended JVA is the product of a renegotiation of
the original JVA dated April 25, 1995 and its
supplemental agreement dated August 9, 1995.
The Threshold Issue
The threshold issue is whether AMARI, a private
corporation, can acquire and own under the Amended
JVA 367.5 hectares of reclaimed foreshore and
submerged areas in Manila Bay in view of Sections 2
and 3, Article XII of the 1987 Constitution which state
that:
"Section 2. All 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 other natural resources are
owned by the State. With the exception of agricultural
lands, all other natural resources shall not be
alienated. x x x.
xxx
Section 3. x x x Alienable lands of the public domain
shall be limited to agricultural lands. Private
corporations or associations may not hold such
alienable lands of the public domain except by lease,
x x x."(Emphasis supplied)
Classification of Reclaimed Foreshore and
Submerged Areas
PEA readily concedes that lands reclaimed from
foreshore or submerged areas of Manila Bay are
alienable or disposable lands of the public domain. In its
Memorandum,67 PEA admits that –
"Under the Public Land Act (CA 141, as
amended), reclaimed lands are classified as alienable
and disposable lands of the public domain:
'Sec. 59. The lands disposable under this title shall be
classified as follows:
(a) Lands reclaimed by the government by dredging,
filling, or other means;
x x x.'" (Emphasis supplied)
Likewise, the Legal Task Force68 constituted under
Presidential Administrative Order No. 365 admitted in
its Report and Recommendation to then President Fidel
V. Ramos, "[R]eclaimed lands are classified as
alienable and disposable lands of the public
domain."69 The Legal Task Force concluded that –
"D. Conclusion
Reclaimed lands are lands of the public domain.
However, by statutory authority, the rights of ownership
and disposition over reclaimed lands have been
transferred to PEA, by virtue of which PEA, as owner,
may validly convey the same to any qualified person
without violating the Constitution or any statute.
The constitutional provision prohibiting private
corporations from holding public land, except by lease
(Sec. 3, Art. XVII,70 1987 Constitution), does not apply to
reclaimed lands whose ownership has passed on to PEA
by statutory grant."
Under Section 2, Article XII of the 1987 Constitution, the
foreshore and submerged areas of Manila Bay are part
of the "lands of the public domain, waters x x x and
other natural resources" and consequently "owned by
the State." As such, foreshore and submerged areas
"shall not be alienated," unless they are classified as
"agricultural lands" of the public domain. The mere
reclamation of these areas by PEA does not convert
these inalienable natural resources of the State into
alienable or disposable lands of the public domain.
There must be a law or presidential proclamation
officially classifying these reclaimed lands as alienable
or disposable and open to disposition or concession.
Moreover, these reclaimed lands cannot be classified as
alienable or disposable if the law has reserved them for
some public or quasi-public use.71
Section 8 of CA No. 141 provides that "only those lands
shall be declared open to disposition or concession
which have been officially delimited and
classified."72 The President has the authority to classify
inalienable lands of the public domain into alienable or
disposable lands of the public domain, pursuant to
Section 6 of CA No. 141. In Laurel vs. Garcia,73 the
Executive Department attempted to sell the Roppongi
property in Tokyo, Japan, which was acquired by the
Philippine Government for use as the Chancery of the
Philippine Embassy. Although the Chancery had
transferred to another location thirteen years earlier,
the Court still ruled that, under Article 422 74 of the Civil
Code, a property of public dominion retains such
character until formally declared otherwise. The Court
ruled that –
"The fact that the Roppongi site has not been used for a
long time for actual Embassy service does not
automatically convert it to patrimonial property. Any
such conversion happens only if the property is
withdrawn from public use (Cebu Oxygen and Acetylene
Co. v. Bercilles, 66 SCRA 481 [1975]. A property
continues to be part of the public domain, not
available for private appropriation or ownership
'until there is a formal declaration on the part of the
government to withdraw it from being such' (Ignacio
v. Director of Lands, 108 Phil. 335 [1960]." (Emphasis
supplied)
PD No. 1085, issued on February 4, 1977, authorized the
issuance of special land patents for lands reclaimed by
PEA from the foreshore or submerged areas of Manila
Bay. On January 19, 1988 then President Corazon C.
Aquino issued Special Patent No. 3517 in the name of
85
PEA for the 157.84 hectares comprising the partially
reclaimed Freedom Islands. Subsequently, on April 9,
1999 the Register of Deeds of the Municipality of
Paranaque issued TCT Nos. 7309, 7311 and 7312 in the
name of PEA pursuant to Section 103 of PD No. 1529
authorizing the issuance of certificates of title
corresponding to land patents. To this day, these
certificates of title are still in the name of PEA.
PD No. 1085, coupled with President Aquino's actual
issuance of a special patent covering the Freedom
Islands, is equivalent to an official proclamation
classifying the Freedom Islands as alienable or
disposable lands of the public domain. PD No. 1085 and
President Aquino's issuance of a land patent also
constitute a declaration that the Freedom Islands are no
longer needed for public service. The Freedom Islands
are thus alienable or disposable lands of the public
domain, open to disposition or concession to
qualified parties.
At the time then President Aquino issued Special Patent
No. 3517, PEA had already reclaimed the Freedom
Islands although subsequently there were partial
erosions on some areas. The government had also
completed the necessary surveys on these islands. Thus,
the Freedom Islands were no longer part of Manila Bay
but part of the land mass. Section 3, Article XII of the
1987 Constitution classifies lands of the public domain
into "agricultural, forest or timber, mineral lands, and
national parks." Being neither timber, mineral, nor
national park lands, the reclaimed Freedom Islands
necessarily fall under the classification of agricultural
lands of the public domain. Under the 1987
Constitution, agricultural lands of the public domain are
the only natural resources that the State may alienate to
qualified private parties. All other natural resources,
such as the seas or bays, are "waters x x x owned by the
State" forming part of the public domain, and are
inalienable pursuant to Section 2, Article XII of the 1987
Constitution.
AMARI claims that the Freedom Islands are private
lands because CDCP, then a private corporation,
reclaimed the islands under a contract dated November
20, 1973 with the Commissioner of Public Highways.
AMARI, citing Article 5 of the Spanish Law of Waters of
1866, argues that "if the ownership of reclaimed lands
may be given to the party constructing the works, then
it cannot be said that reclaimed lands are lands of the
public domain which the State may not
alienate."75 Article 5 of the Spanish Law of Waters reads
as follows:
"Article 5. Lands reclaimed from the sea in consequence
of works constructed by the State, or by the provinces,
pueblos or private persons, with proper permission, shall
become the property of the party constructing such
works, unless otherwise provided by the terms of the
grant of authority." (Emphasis supplied)
Under Article 5 of the Spanish Law of Waters of 1866,
private parties could reclaim from the sea only with
"proper permission" from the State. Private parties
could own the reclaimed land only if not "otherwise
provided by the terms of the grant of authority." This
clearly meant that no one could reclaim from the sea
without permission from the State because the sea is
property of public dominion. It also meant that the State
could grant or withhold ownership of the reclaimed
land because any reclaimed land, like the sea from
which it emerged, belonged to the State. Thus, a private
person reclaiming from the sea without permission
from the State could not acquire ownership of the
reclaimed land which would remain property of public
dominion like the sea it replaced.76 Article 5 of the
Spanish Law of Waters of 1866 adopted the time-
honored principle of land ownership that "all lands that
were not acquired from the government, either by
purchase or by grant, belong to the public domain."77
Article 5 of the Spanish Law of Waters must be read
together with laws subsequently enacted on the
disposition of public lands. In particular, CA No. 141
requires that lands of the public domain must first be
classified as alienable or disposable before the
government can alienate them. These lands must not be
reserved for public or quasi-public
purposes.78 Moreover, the contract between CDCP and
the government was executed after the effectivity of the
1973 Constitution which barred private corporations
from acquiring any kind of alienable land of the public
domain. This contract could not have converted the
Freedom Islands into private lands of a private
corporation.
Presidential Decree No. 3-A, issued on January 11, 1973,
revoked all laws authorizing the reclamation of areas
under water and revested solely in the National
Government the power to reclaim lands. Section 1 of PD
No. 3-A declared that –
"The provisions of any law to the contrary
notwithstanding, the reclamation of areas under water,
whether foreshore or inland, shall be limited to the
National Government or any person authorized by it
under a proper contract. (Emphasis supplied)
x x x."
PD No. 3-A repealed Section 5 of the Spanish Law of
Waters of 1866 because reclamation of areas under
water could now be undertaken only by the National
Government or by a person contracted by the National
Government. Private parties may reclaim from the sea
only under a contract with the National Government,
and no longer by grant or permission as provided in
Section 5 of the Spanish Law of Waters of 1866.
Executive Order No. 525, issued on February 14, 1979,
designated PEA as the National Government's
implementing arm to undertake "all reclamation
projects of the government," which "shall be
undertaken by the PEA or through a proper contract
executed by it with any person or entity." Under such
contract, a private party receives compensation for
reclamation services rendered to PEA. Payment to the
contractor may be in cash, or in kind consisting of
portions of the reclaimed land, subject to the
constitutional ban on private corporations from
acquiring alienable lands of the public domain. The
reclaimed land can be used as payment in kind only if
the reclaimed land is first classified as alienable or
disposable land open to disposition, and then declared
no longer needed for public service.
The Amended JVA covers not only the Freedom Islands,
but also an additional 592.15 hectares which are still
submerged and forming part of Manila Bay. There is no
legislative or Presidential act classifying these
submerged areas as alienable or disposable lands of
the public domain open to disposition. These
submerged areas are not covered by any patent or
certificate of title. There can be no dispute that these
submerged areas form part of the public domain, and in
their present state are inalienable and outside the
commerce of man. Until reclaimed from the sea, these
submerged areas are, under the Constitution, "waters x
x x owned by the State," forming part of the public
domain and consequently inalienable. Only when
actually reclaimed from the sea can these submerged
areas be classified as public agricultural lands, which
under the Constitution are the only natural resources
that the State may alienate. Once reclaimed and
transformed into public agricultural lands, the
government may then officially classify these lands as
alienable or disposable lands open to disposition.
Thereafter, the government may declare these lands no
86
longer needed for public service. Only then can these
reclaimed lands be considered alienable or disposable
lands of the public domain and within the commerce of
man.
The classification of PEA's reclaimed foreshore and
submerged lands into alienable or disposable lands
open to disposition is necessary because PEA is tasked
under its charter to undertake public services that
require the use of lands of the public domain. Under
Section 5 of PD No. 1084, the functions of PEA include
the following: "[T]o own or operate railroads, tramways
and other kinds of land transportation, x x x; [T]o
construct, maintain and operate such systems of
sanitary sewers as may be necessary; [T]o construct,
maintain and operate such storm drains as may be
necessary." PEA is empowered to issue "rules and
regulations as may be necessary for the proper use by
private parties of any or all of the highways, roads,
utilities, buildings and/or any of its properties and to
impose or collect fees or tolls for their use." Thus, part
of the reclaimed foreshore and submerged lands held by
the PEA would actually be needed for public use or
service since many of the functions imposed on PEA by
its charter constitute essential public services.
Moreover, Section 1 of Executive Order No. 525 provides
that PEA "shall be primarily responsible for integrating,
directing, and coordinating all reclamation projects for
and on behalf of the National Government." The same
section also states that "[A]ll reclamation projects shall
be approved by the President upon recommendation of
the PEA, and shall be undertaken by the PEA or through
a proper contract executed by it with any person or
entity; x x x." Thus, under EO No. 525, in relation to PD
No. 3-A and PD No.1084, PEA became the primary
implementing agency of the National Government to
reclaim foreshore and submerged lands of the public
domain. EO No. 525 recognized PEA as the government
entity "to undertake the reclamation of lands and
ensure their maximum utilization inpromoting public
welfare and interests."79 Since large portions of these
reclaimed lands would obviously be needed for public
service, there must be a formal declaration segregating
reclaimed lands no longer needed for public service
from those still needed for public service.1âwphi1.nêt
Section 3 of EO No. 525, by declaring that all lands
reclaimed by PEA "shall belong to or be owned by the
PEA," could not automatically operate to classify
inalienable lands into alienable or disposable lands of
the public domain. Otherwise, reclaimed foreshore and
submerged lands of the public domain would
automatically become alienable once reclaimed by PEA,
whether or not classified as alienable or disposable.
The Revised Administrative Code of 1987, a later law
than either PD No. 1084 or EO No. 525, vests in the
Department of Environment and Natural Resources
("DENR" for brevity) the following powers and
functions:
"Sec. 4. Powers and Functions. The Department shall:
(1) x x x
xxx
(4) Exercise supervision and control over forest
lands, alienable and disposable public lands, mineral
resources and, in the process of exercising such control,
impose appropriate taxes, fees, charges, rentals and any
such form of levy and collect such revenues for the
exploration, development, utilization or gathering of
such resources;
xxx
(14) Promulgate rules, regulations and guidelines on
the issuance of licenses, permits, concessions, lease
agreements and such other privileges concerning the
development, exploration and utilization of the
country's marine, freshwater, and brackish water
and over all aquatic resources of the country and
shall continue to oversee, supervise and police our
natural resources; cancel or cause to cancel such
privileges upon failure, non-compliance or violations of
any regulation, order, and for all other causes which are
in furtherance of the conservation of natural resources
and supportive of the national interest;
(15) Exercise exclusive jurisdiction on the
management and disposition of all lands of the
public domain and serve as the sole agency
responsible for classification, sub-classification,
surveying and titling of lands in consultation with
appropriate agencies."80 (Emphasis supplied)
As manager, conservator and overseer of the natural
resources of the State, DENR exercises "supervision and
control over alienable and disposable public lands."
DENR also exercises "exclusive jurisdiction on the
management and disposition of all lands of the public
domain." Thus, DENR decides whether areas under
water, like foreshore or submerged areas of Manila Bay,
should be reclaimed or not. This means that PEA needs
authorization from DENR before PEA can undertake
reclamation projects in Manila Bay, or in any part of the
country.
DENR also exercises exclusive jurisdiction over the
disposition of all lands of the public domain. Hence,
DENR decides whether reclaimed lands of PEA should
be classified as alienable under Sections 681 and 782 of
CA No. 141. Once DENR decides that the reclaimed lands
should be so classified, it then recommends to the
President the issuance of a proclamation classifying the
lands as alienable or disposable lands of the public
domain open to disposition. We note that then DENR
Secretary Fulgencio S. Factoran, Jr. countersigned
Special Patent No. 3517 in compliance with the Revised
Administrative Code and Sections 6 and 7 of CA No. 141.
In short, DENR is vested with the power to authorize the
reclamation of areas under water, while PEA is vested
with the power to undertake the physical reclamation of
areas under water, whether directly or through private
contractors. DENR is also empowered to classify lands
of the public domain into alienable or disposable lands
subject to the approval of the President. On the other
hand, PEA is tasked to develop, sell or lease the
reclaimed alienable lands of the public domain.
Clearly, the mere physical act of reclamation by PEA of
foreshore or submerged areas does not make the
reclaimed lands alienable or disposable lands of the
public domain, much less patrimonial lands of PEA.
Likewise, the mere transfer by the National Government
of lands of the public domain to PEA does not make the
lands alienable or disposable lands of the public
domain, much less patrimonial lands of PEA.
Absent two official acts – a classification that these
lands are alienable or disposable and open to
disposition and a declaration that these lands are not
needed for public service, lands reclaimed by PEA
remain inalienable lands of the public domain. Only
such an official classification and formal declaration can
convert reclaimed lands into alienable or disposable
lands of the public domain, open to disposition under
the Constitution, Title I and Title III83 of CA No. 141 and
other applicable laws.84
PEA's Authority to Sell Reclaimed Lands
PEA, like the Legal Task Force, argues that as alienable
or disposable lands of the public domain, the reclaimed
lands shall be disposed of in accordance with CA No.
141, the Public Land Act. PEA, citing Section 60 of CA
No. 141, admits that reclaimed lands transferred to a
branch or subdivision of the government "shall not be
alienated, encumbered, or otherwise disposed of in a
manner affecting its title, except when authorized by
Congress: x x x."85 (Emphasis by PEA)
87
In Laurel vs. Garcia,86 the Court cited Section 48 of the
Revised Administrative Code of 1987, which states that
– Corporation of the Philippines, as may be necessary to
"Sec. 48. Official Authorized to Convey Real Property.
Whenever real property of the Government is
authorized by law to be conveyed, the deed of
conveyance shall be executed in behalf of the
government by the following: x x x."
Thus, the Court concluded that a law is needed to
convey any real property belonging to the Government.
The Court declared that -
"It is not for the President to convey real property of the
government on his or her own sole will. Any such
conveyance must be authorized and approved by a
law enacted by the Congress. It requires executive and
legislative concurrence." (Emphasis supplied)
PEA contends that PD No. 1085 and EO No. 525
constitute the legislative authority allowing PEA to sell
its reclaimed lands. PD No. 1085, issued on February 4,
1977, provides that –
"The land reclaimed in the foreshore and offshore
area of Manila Bay pursuant to the contract for the
reclamation and construction of the Manila-Cavite
Coastal Road Project between the Republic of the
Philippines and the Construction and Development
Corporation of the Philippines dated November 20,
1973 and/or any other contract or reclamation covering
the same area is hereby transferred, conveyed and
assigned to the ownership and administration of the
Public Estates Authority established pursuant to PD
No. 1084; Provided, however, That the rights and
interests of the Construction and Development
Corporation of the Philippines pursuant to the aforesaid
contract shall be recognized and respected.
Henceforth, the Public Estates Authority shall exercise
the rights and assume the obligations of the Republic of
the Philippines (Department of Public Highways)
arising from, or incident to, the aforesaid contract
between the Republic of the Philippines and the
Construction and Development Corporation of the
Philippines.
In consideration of the foregoing transfer and
assignment, the Public Estates Authority shall issue in
favor of the Republic of the Philippines the
corresponding shares of stock in said entity with an
issued value of said shares of stock (which) shall be
deemed fully paid and non-assessable.
The Secretary of Public Highways and the General
Manager of the Public Estates Authority shall execute
such contracts or agreements, including appropriate
agreements with the Construction and Development
implement the above.
Special land patent/patents shall be issued by the
Secretary of Natural Resources in favor of the Public
Estates Authority without prejudice to the
subsequent transfer to the contractor or his
assignees of such portion or portions of the land
reclaimed or to be reclaimed as provided for in the
above-mentioned contract. On the basis of such
patents, the Land Registration Commission shall
issue the corresponding certificate of title." (Emphasis
supplied)
On the other hand, Section 3 of EO No. 525, issued on
February 14, 1979, provides that -
"Sec. 3. All lands reclaimed by PEA shall belong to or
be owned by the PEA which shall be responsible for its
administration, development, utilization or disposition
in accordance with the provisions of Presidential Decree
No. 1084. Any and all income that the PEA may derive
from the sale, lease or use of reclaimed lands shall be
used in accordance with the provisions of Presidential
Decree No. 1084."
There is no express authority under either PD No. 1085
or EO No. 525 for PEA to sell its reclaimed lands. PD No.
1085 merely transferred "ownership and
administration" of lands reclaimed from Manila Bay to
PEA, while EO No. 525 declared that lands reclaimed by
PEA "shall belong to or be owned by PEA." EO No. 525
expressly states that PEA should dispose of its
reclaimed lands "in accordance with the provisions of
Presidential Decree No. 1084," the charter of PEA.
PEA's charter, however, expressly tasks PEA "to develop,
improve, acquire, administer, deal in, subdivide, dispose,
lease and sell any and all kinds of lands x x x owned,
managed, controlled and/or operated by the
government."87(Emphasis supplied) There is, therefore,
legislative authority granted to PEA to sell its lands,
whether patrimonial or alienable lands of the public
domain. PEA may sell to private parties its patrimonial
propertiesin accordance with the PEA charter free from
constitutional limitations. The constitutional ban on
private corporations from acquiring alienable lands of
the public domain does not apply to the sale of PEA's
patrimonial lands.
PEA may also sell its alienable or disposable lands of
the public domain to private individuals since, with the
legislative authority, there is no longer any statutory
prohibition against such sales and the constitutional
ban does not apply to individuals. PEA, however, cannot
sell any of its alienable or disposable lands of the public
domain to private corporations since Section 3, Article
XII of the 1987 Constitution expressly prohibits such
sales. The legislative authority benefits only individuals.
Private corporations remain barred from acquiring any
kind of alienable land of the public domain, including
government reclaimed lands.
The provision in PD No. 1085 stating that portions of
the reclaimed lands could be transferred by PEA to the
"contractor or his assignees" (Emphasis supplied)
would not apply to private corporations but only to
individuals because of the constitutional ban.
Otherwise, the provisions of PD No. 1085 would violate
both the 1973 and 1987 Constitutions.
The requirement of public auction in the sale of
reclaimed lands
Assuming the reclaimed lands of PEA are classified as
alienable or disposable lands open to disposition, and
further declared no longer needed for public service,
PEA would have to conduct a public bidding in selling or
leasing these lands. PEA must observe the provisions of
Sections 63 and 67 of CA No. 141 requiring public
auction, in the absence of a law exempting PEA from
holding a public auction.88 Special Patent No. 3517
expressly states that the patent is issued by authority of
the Constitution and PD No. 1084, "supplemented by
Commonwealth Act No. 141, as amended." This is an
acknowledgment that the provisions of CA No. 141
apply to the disposition of reclaimed alienable lands of
the public domain unless otherwise provided by law.
Executive Order No. 654,89 which authorizes PEA "to
determine the kind and manner of payment for the
transfer" of its assets and properties, does not exempt
PEA from the requirement of public auction. EO No. 654
merely authorizes PEA to decide the mode of payment,
whether in kind and in installment, but does not
authorize PEA to dispense with public auction.
Moreover, under Section 79 of PD No. 1445, otherwise
known as the Government Auditing Code, the
government is required to sell valuable government
property through public bidding. Section 79 of PD No.
1445 mandates that –
"Section 79. When government property has become
unserviceable for any cause, or is no longer needed, it
shall, upon application of the officer accountable
therefor, be inspected by the head of the agency or his
duly authorized representative in the presence of the
88
auditor concerned and, if found to be valueless or
unsaleable, it may be destroyed in their presence. If
found to be valuable, it may be sold at public auction
to the highest bidder under the supervision of the
proper committee on award or similar body in the
presence of the auditor concerned or other authorized
representative of the Commission, after advertising by
printed notice in the Official Gazette, or for not less
than three consecutive days in any newspaper of
general circulation, or where the value of the property
does not warrant the expense of publication, by notices
posted for a like period in at least three public places in
the locality where the property is to be sold. In the
event that the public auction fails, the property may
be sold at a private sale at such price as may be fixed
by the same committee or body concerned and
approved by the Commission."
It is only when the public auction fails that a negotiated
sale is allowed, in which case the Commission on Audit
must approve the selling price.90 The Commission on
Audit implements Section 79 of the Government
Auditing Code through Circular No. 89-29691 dated
January 27, 1989. This circular emphasizes that
government assets must be disposed of only through
public auction, and a negotiated sale can be resorted to
only in case of "failure of public auction."
At the public auction sale, only Philippine citizens are
qualified to bid for PEA's reclaimed foreshore and
submerged alienable lands of the public domain. Private
corporations are barred from bidding at the auction sale
of any kind of alienable land of the public domain.
PEA originally scheduled a public bidding for the
Freedom Islands on December 10, 1991. PEA imposed a
condition that the winning bidder should reclaim
another 250 hectares of submerged areas to regularize
the shape of the Freedom Islands, under a 60-40 sharing
of the additional reclaimed areas in favor of the winning
bidder.92 No one, however, submitted a bid. On
December 23, 1994, the Government Corporate Counsel
advised PEA it could sell the Freedom Islands through
negotiation, without need of another public bidding,
because of the failure of the public bidding on December
10, 1991.93
However, the original JVA dated April 25, 1995 covered
not only the Freedom Islands and the additional 250
hectares still to be reclaimed, it also granted an option
to AMARI to reclaim another 350 hectares. The original
JVA, a negotiated contract, enlarged the reclamation
area to 750 hectares.94 The failure of public bidding on
December 10, 1991, involving only 407.84 hectares,95 is
not a valid justification for a negotiated sale of 750
hectares, almost double the area publicly auctioned.
Besides, the failure of public bidding happened on
December 10, 1991, more than three years before the
signing of the original JVA on April 25, 1995. The
economic situation in the country had greatly improved
during the intervening period.
Reclamation under the BOT Law and the Local
Government Code
The constitutional prohibition in Section 3, Article XII of
the 1987 Constitution is absolute and clear: "Private
corporations or associations may not hold such
alienable lands of the public domain except by lease, x x
x." Even Republic Act No. 6957 ("BOT Law," for brevity),
cited by PEA and AMARI as legislative authority to sell
reclaimed lands to private parties, recognizes the
constitutional ban. Section 6 of RA No. 6957 states –
"Sec. 6. Repayment Scheme. - For the financing,
construction, operation and maintenance of any
infrastructure projects undertaken through the build-
operate-and-transfer arrangement or any of its
variations pursuant to the provisions of this Act, the
project proponent x x x may likewise be repaid in the
form of a share in the revenue of the project or other
non-monetary payments, such as, but not limited to, the
grant of a portion or percentage of the reclaimed
land, subject to the constitutional requirements with
respect to the ownership of the land: x x x." (Emphasis
supplied)
A private corporation, even one that undertakes the
physical reclamation of a government BOT project,
cannot acquire reclaimed alienable lands of the public
domain in view of the constitutional ban.
Section 302 of the Local Government Code, also
mentioned by PEA and AMARI, authorizes local
governments in land reclamation projects to pay the
contractor or developer in kind consisting of a
percentage of the reclaimed land, to wit:
"Section 302. Financing, Construction, Maintenance,
Operation, and Management of Infrastructure Projects
by the Private Sector. x x x
xxx
In case of land reclamation or construction of industrial
estates, the repayment plan may consist of the grant of a
portion or percentage of the reclaimed land or the
industrial estate constructed."
Although Section 302 of the Local Government Code
does not contain a proviso similar to that of the BOT
Law, the constitutional restrictions on land ownership
automatically apply even though not expressly
mentioned in the Local Government Code.
Thus, under either the BOT Law or the Local
Government Code, the contractor or developer, if a
corporate entity, can only be paid with leaseholds on
portions of the reclaimed land. If the contractor or
developer is an individual, portions of the reclaimed
land, not exceeding 12 hectares96 of non-agricultural
lands, may be conveyed to him in ownership in view of
the legislative authority allowing such conveyance. This
is the only way these provisions of the BOT Law and the
Local Government Code can avoid a direct collision with
Section 3, Article XII of the 1987 Constitution.
Registration of lands of the public domain
Finally, PEA theorizes that the "act of conveying the
ownership of the reclaimed lands to public respondent
PEA transformed such lands of the public domain to
private lands." This theory is echoed by AMARI which
maintains that the "issuance of the special patent
leading to the eventual issuance of title takes the subject
land away from the land of public domain and converts
the property into patrimonial or private property." In
short, PEA and AMARI contend that with the issuance of
Special Patent No. 3517 and the corresponding
certificates of titles, the 157.84 hectares comprising the
Freedom Islands have become private lands of PEA. In
support of their theory, PEA and AMARI cite the
following rulings of the Court:
1. Sumail v. Judge of CFI of Cotabato,97 where the Court
held –
"Once the patent was granted and the corresponding
certificate of title was issued, the land ceased to be part
of the public domain and became private property over
which the Director of Lands has neither control nor
jurisdiction."
2. Lee Hong Hok v. David,98 where the Court declared -
"After the registration and issuance of the certificate and
duplicate certificate of title based on a public land
patent, the land covered thereby automatically comes
under the operation of Republic Act 496 subject to all
the safeguards provided therein."3. Heirs of Gregorio
Tengco v. Heirs of Jose Aliwalas,99 where the Court ruled -
"While the Director of Lands has the power to review
homestead patents, he may do so only so long as the
land remains part of the public domain and continues to
be under his exclusive control; but once the patent is
registered and a certificate of title is issued, the land
ceases to be part of the public domain and becomes
89
private property over which the Director of Lands has
neither control nor jurisdiction."
4. Manalo v. Intermediate Appellate Court,100 where the
Court held –
"When the lots in dispute were certified as disposable
on May 19, 1971, and free patents were issued covering
the same in favor of the private respondents, the said
lots ceased to be part of the public domain and,
therefore, the Director of Lands lost jurisdiction over
the same."
5.Republic v. Court of Appeals,101 where the Court stated
– Registration of land under Act No. 496 or PD No. 1529
"Proclamation No. 350, dated October 9, 1956, of
President Magsaysay legally effected a land grant to the
Mindanao Medical Center, Bureau of Medical Services,
Department of Health, of the whole lot, validly sufficient
for initial registration under the Land Registration Act.
Such land grant is constitutive of a 'fee simple' title or
absolute title in favor of petitioner Mindanao Medical
Center. Thus, Section 122 of the Act, which governs the
registration of grants or patents involving public lands,
provides that 'Whenever public lands in the Philippine
Islands belonging to the Government of the United
States or to the Government of the Philippines are
alienated, granted or conveyed to persons or to public
or private corporations, the same shall be brought
forthwith under the operation of this Act (Land
Registration Act, Act 496) and shall become registered
lands.'"
The first four cases cited involve petitions to cancel the
land patents and the corresponding certificates of
titlesissued to private parties. These four cases
uniformly hold that the Director of Lands has no
jurisdiction over private lands or that upon issuance of
the certificate of title the land automatically comes
under the Torrens System. The fifth case cited involves
the registration under the Torrens System of a 12.8-
hectare public land granted by the National Government
to Mindanao Medical Center, a government unit under
the Department of Health. The National Government
transferred the 12.8-hectare public land to serve as the
site for the hospital buildings and other facilities of
Mindanao Medical Center, which performed a public
service. The Court affirmed the registration of the 12.8-
hectare public land in the name of Mindanao Medical
Center under Section 122 of Act No. 496. This fifth case
is an example of a public land being registered under
Act No. 496 without the land losing its character as a
property of public dominion.
In the instant case, the only patent and certificates of
title issued are those in the name of PEA, a wholly
government owned corporation performing public as
well as proprietary functions. No patent or certificate of
title has been issued to any private party. No one is
asking the Director of Lands to cancel PEA's patent or
certificates of title. In fact, the thrust of the instant
petition is that PEA's certificates of title should remain
with PEA, and the land covered by these certificates,
being alienable lands of the public domain, should not
be sold to a private corporation.
does not vest in the registrant private or public
ownership of the land. Registration is not a mode of
acquiring ownership but is merely evidence of
ownership previously conferred by any of the
recognized modes of acquiring ownership. Registration
does not give the registrant a better right than what the
registrant had prior to the registration.102 The
registration of lands of the public domain under the
Torrens system, by itself, cannot convert public lands
into private lands.103
Jurisprudence holding that upon the grant of the patent
or issuance of the certificate of title the alienable land of
the public domain automatically becomes private land
cannot apply to government units and entities like PEA.
The transfer of the Freedom Islands to PEA was made
subject to the provisions of CA No. 141 as expressly
stated in Special Patent No. 3517 issued by then
President Aquino, to wit:
"NOW, THEREFORE, KNOW YE, that by authority of the
Constitution of the Philippines and in conformity with
the provisions of Presidential Decree No. 1084,
supplemented by Commonwealth Act No. 141, as
amended, there are hereby granted and conveyed unto
the Public Estates Authority the aforesaid tracts of land
containing a total area of one million nine hundred
fifteen thousand eight hundred ninety four (1,915,894)
square meters; the technical description of which are
hereto attached and made an integral part hereof."
(Emphasis supplied)
Thus, the provisions of CA No. 141 apply to the Freedom
Islands on matters not covered by PD No. 1084. Section
60 of CA No. 141 prohibits, "except when authorized by
Congress," the sale of alienable lands of the public
domain that are transferred to government units or
entities. Section 60 of CA No. 141 constitutes, under
Section 44 of PD No. 1529, a "statutory lien affecting
title" of the registered land even if not annotated on the
certificate of title.104Alienable lands of the public domain
held by government entities under Section 60 of CA No.
141 remain public lands because they cannot be
alienated or encumbered unless Congress passes a law
authorizing their disposition. Congress, however, cannot
authorize the sale to private corporations of reclaimed
alienable lands of the public domain because of the
constitutional ban. Only individuals can benefit from
such law.
The grant of legislative authority to sell public lands in
accordance with Section 60 of CA No. 141 does not
automatically convert alienable lands of the public
domain into private or patrimonial lands. The alienable
lands of the public domain must be transferred to
qualified private parties, or to government entities not
tasked to dispose of public lands, before these lands can
become private or patrimonial lands. Otherwise, the
constitutional ban will become illusory if Congress can
declare lands of the public domain as private or
patrimonial lands in the hands of a government agency
tasked to dispose of public lands. This will allow private
corporations to acquire directly from government
agencies limitless areas of lands which, prior to such
law, are concededly public lands.
Under EO No. 525, PEA became the central
implementing agency of the National Government to
reclaim foreshore and submerged areas of the public
domain. Thus, EO No. 525 declares that –
"EXECUTIVE ORDER NO. 525
Designating the Public Estates Authority as the Agency
Primarily Responsible for all Reclamation Projects
Whereas, there are several reclamation projects which
are ongoing or being proposed to be undertaken in
various parts of the country which need to be evaluated
for consistency with national programs;
Whereas, there is a need to give further institutional
support to the Government's declared policy to provide
for a coordinated, economical and efficient reclamation
of lands;
Whereas, Presidential Decree No. 3-A requires that all
reclamation of areas shall be limited to the National
Government or any person authorized by it under
proper contract;
Whereas, a central authority is needed to act on
behalf of the National Government which shall
ensure a coordinated and integrated approach in the
reclamation of lands;
Whereas, Presidential Decree No. 1084 creates the
Public Estates Authority as a government
90
corporation to undertake reclamation of lands and
ensure their maximum utilization in promoting
public welfare and interests; and
Whereas, Presidential Decree No. 1416 provides the
President with continuing authority to reorganize the
national government including the transfer, abolition, or
merger of functions and offices.
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers
vested in me by the Constitution and pursuant to
Presidential Decree No. 1416, do hereby order and
direct the following:
Section 1. The Public Estates Authority (PEA) shall be
primarily responsible for integrating, directing, and
coordinating all reclamation projects for and on
behalf of the National Government. All reclamation
projects shall be approved by the President upon
recommendation of the PEA, and shall be undertaken by
the PEA or through a proper contract executed by it
with any person or entity; Provided, that, reclamation
projects of any national government agency or entity
authorized under its charter shall be undertaken in
consultation with the PEA upon approval of the
President.
x x x ."
As the central implementing agency tasked to undertake
reclamation projects nationwide, with authority to sell
reclaimed lands, PEA took the place of DENR as the
government agency charged with leasing or selling
reclaimed lands of the public domain. The reclaimed
lands being leased or sold by PEA are not private lands,
in the same manner that DENR, when it disposes of
other alienable lands, does not dispose of private lands
but alienable lands of the public domain. Only when
qualified private parties acquire these lands will the
lands become private lands. In the hands of the
government agency tasked and authorized to dispose
of alienable of disposable lands of the public domain,
these lands are still public, not private lands.
Furthermore, PEA's charter expressly states that PEA
"shall hold lands of the public domain" as well as "any
and all kinds of lands." PEA can hold both lands of the
public domain and private lands. Thus, the mere fact
that alienable lands of the public domain like the
Freedom Islands are transferred to PEA and issued land
patents or certificates of title in PEA's name does not
automatically make such lands private.
To allow vast areas of reclaimed lands of the public
domain to be transferred to PEA as private lands will
sanction a gross violation of the constitutional ban on
private corporations from acquiring any kind of
alienable land of the public domain. PEA will simply
turn around, as PEA has now done under the
Amended JVA, and transfer several hundreds of hectares
of these reclaimed and still to be reclaimed lands to a
single private corporation in only one transaction. This
scheme will effectively nullify the constitutional ban in
Section 3, Article XII of the 1987 Constitution which was
intended to diffuse equitably the ownership of alienable
lands of the public domain among Filipinos, now
numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable
agricultural lands of the public domain since PEA can
"acquire x x x any and all kinds of lands." This will open
the floodgates to corporations and even individuals
acquiring hundreds of hectares of alienable lands of the
public domain under the guise that in the hands of PEA
these lands are private lands. This will result in
corporations amassing huge landholdings never before
seen in this country - creating the very evil that the
constitutional ban was designed to prevent. This will
completely reverse the clear direction of constitutional
development in this country. The 1935 Constitution
allowed private corporations to acquire not more than
1,024 hectares of public lands.105 The 1973 Constitution
prohibited private corporations from acquiring any kind
of public land, and the 1987 Constitution has
unequivocally reiterated this prohibition.
The contention of PEA and AMARI that public lands,
once registered under Act No. 496 or PD No. 1529,
automatically become private lands is contrary to
existing laws. Several laws authorize lands of the public
domain to be registered under the Torrens System or
Act No. 496, now PD No. 1529, without losing their
character as public lands. Section 122 of Act No. 496,
and Section 103 of PD No. 1529, respectively, provide as
follows:
Act No. 496
"Sec. 122. Whenever public lands in the Philippine
Islands belonging to the x x x Government of the
Philippine Islands are alienated, granted, or conveyed to
persons or the public or private corporations, the
same shall be brought forthwith under the operation of
this Act and shall become registered lands."
PD No. 1529
"Sec. 103. Certificate of Title to Patents. Whenever
public land is by the Government alienated, granted or
conveyed to any person, the same shall be brought
forthwith under the operation of this Decree."
(Emphasis supplied)
Based on its legislative history, the phrase "conveyed to
any person" in Section 103 of PD No. 1529 includes
conveyances of public lands to public corporations.
Alienable lands of the public domain "granted, donated,
or transferred to a province, municipality, or branch or
subdivision of the Government," as provided in Section
60 of CA No. 141, may be registered under the Torrens
System pursuant to Section 103 of PD No. 1529. Such
registration, however, is expressly subject to the
condition in Section 60 of CA No. 141 that the land
"shall not be alienated, encumbered or otherwise
disposed of in a manner affecting its title, except
when authorized by Congress." This provision refers to
government reclaimed, foreshore and marshy lands of
the public domain that have been titled but still cannot
be alienated or encumbered unless expressly authorized
by Congress. The need for legislative authority prevents
the registered land of the public domain from becoming
private land that can be disposed of to qualified private
parties.
The Revised Administrative Code of 1987 also
recognizes that lands of the public domain may be
registered under the Torrens System. Section 48,
Chapter 12, Book I of the Code states –
"Sec. 48. Official Authorized to Convey Real Property.
Whenever real property of the Government is
authorized by law to be conveyed, the deed of
conveyance shall be executed in behalf of the
government by the following:
(1) x x x
(2) For property belonging to the Republic of the
Philippines, but titled in the name of any political
subdivision or of any corporate agency or
instrumentality, by the executive head of the agency or
instrumentality." (Emphasis supplied)
Thus, private property purchased by the National
Government for expansion of a public wharf may be
titled in the name of a government corporation
regulating port operations in the country. Private
property purchased by the National Government for
expansion of an airport may also be titled in the name of
the government agency tasked to administer the airport.
Private property donated to a municipality for use as a
town plaza or public school site may likewise be titled in
the name of the municipality.106 All these properties
become properties of the public domain, and if already
registered under Act No. 496 or PD No. 1529, remain
91
registered land. There is no requirement or provision in
any existing law for the de-registration of land from the
Torrens System.
Private lands taken by the Government for public use
under its power of eminent domain become
unquestionably part of the public domain. Nevertheless,
Section 85 of PD No. 1529 authorizes the Register of
Deeds to issue in the name of the National Government
new certificates of title covering such expropriated
lands. Section 85 of PD No. 1529 states –
"Sec. 85. Land taken by eminent domain. Whenever any
registered land, or interest therein, is expropriated or
taken by eminent domain, the National Government,
province, city or municipality, or any other agency or
instrumentality exercising such right shall file for
registration in the proper Registry a certified copy of the
judgment which shall state definitely by an adequate
description, the particular property or interest
expropriated, the number of the certificate of title, and
the nature of the public use. A memorandum of the right
or interest taken shall be made on each certificate of
title by the Register of Deeds, and where the fee simple
is taken, a new certificate shall be issued in favor of
the National Government, province, city,
municipality, or any other agency or instrumentality
exercising such right for the land so taken. The legal
expenses incident to the memorandum of registration
or issuance of a new certificate of title shall be for the
account of the authority taking the land or interest
therein." (Emphasis supplied)
Consequently, lands registered under Act No. 496 or PD
No. 1529 are not exclusively private or patrimonial
lands. Lands of the public domain may also be
registered pursuant to existing laws.
AMARI makes a parting shot that the Amended JVA is
not a sale to AMARI of the Freedom Islands or of the
lands to be reclaimed from submerged areas of Manila
Bay. In the words of AMARI, the Amended JVA "is not a
sale but a joint venture with a stipulation for
reimbursement of the original cost incurred by PEA for
the earlier reclamation and construction works
performed by the CDCP under its 1973 contract with the
Republic." Whether the Amended JVA is a sale or a joint
venture, the fact remains that the Amended JVA requires
PEA to "cause the issuance and delivery of the
certificates of title conveying AMARI's Land Share in the
name of AMARI."107
This stipulation still contravenes Section 3, Article XII of
the 1987 Constitution which provides that private
corporations "shall not hold such alienable lands of the
public domain except by lease." The transfer of title and
ownership to AMARI clearly means that AMARI will
"hold" the reclaimed lands other than by lease. The
transfer of title and ownership is a "disposition" of the
reclaimed lands, a transaction considered a sale or
alienation under CA No. 141,108 the Government
Auditing Code,109 and Section 3, Article XII of the 1987
Constitution.
The Regalian doctrine is deeply implanted in our legal
system. Foreshore and submerged areas form part of
the public domain and are inalienable. Lands reclaimed
from foreshore and submerged areas also form part of
the public domain and are also inalienable, unless
converted pursuant to law into alienable or disposable
lands of the public domain. Historically, lands reclaimed
by the government are sui generis, not available for sale
to private parties unlike other alienable public lands.
Reclaimed lands retain their inherent potential as areas
for public use or public service. Alienable lands of the
public domain, increasingly becoming scarce natural
resources, are to be distributed equitably among our
ever-growing population. To insure such equitable
distribution, the 1973 and 1987 Constitutions have
barred private corporations from acquiring any kind of
alienable land of the public domain. Those who attempt
to dispose of inalienable natural resources of the State,
or seek to circumvent the constitutional ban on
alienation of lands of the public domain to private
corporations, do so at their own risk.
We can now summarize our conclusions as follows:
1. The 157.84 hectares of reclaimed lands comprising
the Freedom Islands, now covered by certificates of title
in the name of PEA, are alienable lands of the public
domain. PEA may lease these lands to private
corporations but may not sell or transfer ownership of
these lands to private corporations. PEA may only sell
these lands to Philippine citizens, subject to the
ownership limitations in the 1987 Constitution and
existing laws.
2. The 592.15 hectares of submerged areas of Manila
Bay remain inalienable natural resources of the public
domain until classified as alienable or disposable lands
open to disposition and declared no longer needed for
public service. The government can make such
classification and declaration only after PEA has
reclaimed these submerged areas. Only then can these
lands qualify as agricultural lands of the public domain,
which are the only natural resources the government
can alienate. In their present state, the 592.15 hectares
of submerged areas are inalienable and outside the
commerce of man.
3. Since the Amended JVA seeks to transfer to AMARI, a
private corporation, ownership of 77.34 hectares110of
the Freedom Islands, such transfer is void for being
contrary to Section 3, Article XII of the 1987
Constitution which prohibits private corporations from
acquiring any kind of alienable land of the public
domain.
4. Since the Amended JVA also seeks to transfer to
AMARI ownership of 290.156 hectares111 of still
submerged areas of Manila Bay, such transfer is void for
being contrary to Section 2, Article XII of the 1987
Constitution which prohibits the alienation of natural
resources other than agricultural lands of the public
domain. PEA may reclaim these submerged areas.
Thereafter, the government can classify the reclaimed
lands as alienable or disposable, and further declare
them no longer needed for public service. Still, the
transfer of such reclaimed alienable lands of the public
domain to AMARI will be void in view of Section 3,
Article XII of the 1987 Constitution which prohibits
private corporations from acquiring any kind of
alienable land of the public domain.
Clearly, the Amended JVA violates glaringly Sections 2
and 3, Article XII of the 1987 Constitution. Under Article
1409112 of the Civil Code, contracts whose "object or
purpose is contrary to law," or whose "object is outside
the commerce of men," are "inexistent and void from the
beginning." The Court must perform its duty to defend
and uphold the Constitution, and therefore declares the
Amended JVA null and void ab initio.
Seventh issue: whether the Court is the proper forum
to raise the issue of whether the Amended JVA is
grossly disadvantageous to the government.
Considering that the Amended JVA is null and void ab
initio, there is no necessity to rule on this last issue.
Besides, the Court is not a trier of facts, and this last
issue involves a determination of factual matters.
WHEREFORE, the petition is GRANTED. The Public
Estates Authority and Amari Coastal Bay Development
Corporation are PERMANENTLY ENJOINED from
implementing the Amended Joint Venture Agreement
which is hereby declared NULL and VOID ab initio.
SO ORDERED.
ASSOCIATIONAL STANDING
92
G.R. No. 115381 December 23, 1994
KILUSANG MAYO UNO LABOR CENTER, petitioner,
vs.
HON. JESUS B. GARCIA, JR., the LAND
TRANSPORTATION FRANCHISING AND REGULATORY
BOARD, and the PROVINCIAL BUS OPERATORS
ASSOCIATION OF THE PHILIPPINES, respondents.
Potenciano A. Flores for petitioner.
Robert Anthony C. Sison, Cesar B. Brillantes and Jose
Z. Galsim for private respondent.
Jose F. Miravite for movants.
KAPUNAN, J.:
Public utilities are privately owned and operated
businesses whose service are essential to the general
public. They are enterprises which specially cater to the
needs of the public and conduce to their comfort and
convenience. As such, public utility services are
impressed with public interest and concern. The same is
true with respect to the business of common carrier
which holds such a peculiar relation to the public
interest that there is superinduced upon it the right of
public regulation when private properties are affected
with public interest, hence, they cease to be juris
privati only. When, therefore, one devotes his property
to a use in which the public has an interest, he, in effect
grants to the public an interest in that use, and must
submit to the control by the public for the common
good, to the extent of the interest he has thus created. 1
An abdication of the licensing and regulatory
government agencies of their functions as the instant
petition seeks to show, is indeed lamentable. Not only is
it an unsound administrative policy but it is inimical to
public trust and public interest as well.
The instant petition for certiorari assails the
constitutionality and validity of certain memoranda,
circulars and/or orders of the Department of
Transportation and Communications (DOTC) and the
Land Transportation Franchising and Regulatory Board
LTFRB) 2 which, among others, (a) authorize provincial
bus and jeepney operators to increase or decrease the
prescribed transportation fares without application
therefor with the LTFRB and without hearing and
approval thereof by said agency in violation of Sec. 16(c)
of Commonwealth Act No. 146, as amended, otherwise
known as the Public Service Act, and in derogation of
LTFRB's duty to fix and determine just and reasonable
fares by delegating that function to bus operators, and
(b) establish a presumption of public need in favor of
applicants for certificates of public convenience (CPC)
and place on the oppositor the burden of proving that
there is no need for the proposed service, in patent
violation not only of Sec. 16(c) of CA 146, as amended,
but also of Sec. 20(a) of the same Act mandating that
fares should be "just and reasonable." It is, likewise,
violative of the Rules of Court which places upon each
party the burden to prove his own affirmative
allegations. 3 The offending provisions contained in the
questioned issuances pointed out by petitioner, have
resulted in the introduction into our highways and
thoroughfares thousands of old and smoke-belching
buses, many of which are right-hand driven, and have
exposed our consumers to the burden of spiraling costs
of public transportation without hearing and due
process.
The following memoranda, circulars and/or orders are
sought to be nullified by the instant petition, viz: (a)
DOTC Memorandum Order 90-395, dated June 26, 1990
relative to the implementation of a fare range scheme
for provincial bus services in the country; (b) DOTC
Department Order No.
92-587, dated March 30, 1992, defining the policy
framework on the regulation of transport services; (c)
DOTC Memorandum dated October 8, 1992, laying
down rules and procedures to implement Department
Order No. 92-587; (d) LTFRB Memorandum Circular No.
92-009, providing implementing guidelines on the
DOTC Department Order No. 92-587; and (e) LTFRB
Order dated March 24, 1994 in Case No. 94-3112.
The relevant antecedents are as follows:
On June 26, 1990; then Secretary of DOTC, Oscar M.
Orbos, issued Memorandum Circular No. 90-395 to then
LTFRB Chairman, Remedios A.S. Fernando allowing
provincial bus operators to charge passengers rates
within a range of 15% above and 15% below the LTFRB
official rate for a period of one (1) year. The text of the
memorandum order reads in full:
One of the policy reforms and measures that is in line
with the thrusts and the priorities set out in the
Medium-Term Philippine Development Plan (MTPDP)
1987 — 1992) is the liberalization of regulations in the
transport sector. Along this line, the Government
intends to move away gradually from regulatory policies
and make progress towards greater reliance on free
market forces.
Based on several surveys and observations, bus
companies are already charging passenger rates above
and below the official fare declared by LTFRB on many
provincial routes. It is in this context that some form of
liberalization on public transport fares is to be tested on
a pilot basis.
In view thereof, the LTFRB is hereby directed to
immediately publicize a fare range scheme for all
provincial bus routes in country (except those operating
within Metro Manila). Transport Operators shall be
allowed to charge passengers within a range of fifteen
percent (15%) above and fifteen percent (15%) below the
LTFRB official rate for a period of one year.
Guidelines and procedures for the said scheme shall be
prepared by LTFRB in coordination with the DOTC
Planning Service.
The implementation of the said fare range scheme shall
start on 6 August 1990.
For compliance. (Emphasis ours.)
Finding the implementation of the fare range scheme
"not legally feasible," Remedios A.S. Fernando submitted
the following memorandum to Oscar M. Orbos on July
24, 1990, to wit:
With reference to DOTC Memorandum Order No. 90-
395 dated 26 June 1990 which the LTFRB received on
19 July 1990, directing the Board "to immediately
publicize a fare range scheme for all provincial bus
routes in the country (except those operating within
Metro Manila)" that will allow operators "to charge
passengers within a range of fifteen percent (15%)
above and fifteen percent (15%) below the LTFRB
official rate for a period of one year" the undersigned is
respectfully adverting the Secretary's attention to the
following for his consideration:
1. Section 16(c) of the Public Service Act prescribes the
following for the fixing and determination of rates — (a)
the rates to be approved should be proposed by public
service operators; (b) there should be a publication and
notice to concerned or affected parties in the territory
affected; (c) a public hearing should be held for the
fixing of the rates; hence, implementation of the
proposed fare range scheme on August 6 without
complying with the requirements of the Public Service
Act may not be legally feasible.
2. To allow bus operators in the country to charge fares
fifteen (15%) above the present LTFRB fares in the wake
of the devastation, death and suffering caused by the
July 16 earthquake will not be socially warranted and
will be politically unsound; most likely public criticism
against the DOTC and the LTFRB will be triggered by the
untimely motu propioimplementation of the proposal by
the mere expedient of publicizing the fare range scheme
93
without calling a public hearing, which scheme many as
early as during the Secretary's predecessor know
through newspaper reports and columnists' comments
to be Asian Development Bank and World Bank
inspired.
3. More than inducing a reduction in bus fares by fifteen
percent (15%) the implementation of the proposal will
instead trigger an upward adjustment in bus fares by
fifteen percent (15%) at a time when hundreds of
thousands of people in Central and Northern Luzon,
particularly in Central Pangasinan, La Union, Baguio
City, Nueva Ecija, and the Cagayan Valley are suffering
from the devastation and havoc caused by the recent
earthquake.
4. In lieu of the said proposal, the DOTC with its
agencies involved in public transportation can consider
measures and reforms in the industry that will be
socially uplifting, especially for the people in the areas
devastated by the recent earthquake.
In view of the foregoing considerations, the undersigned
respectfully suggests that the implementation of the
proposed fare range scheme this year be further studied
and evaluated.
On December 5, 1990, private respondent Provincial
Bus Operators Association of the Philippines, Inc.
(PBOAP) filed an application for fare rate increase. An
across-the-board increase of eight and a half centavos
(P0.085) per kilometer for all types of provincial buses
with a minimum-maximum fare range of fifteen (15%)
percent over and below the proposed basic per
kilometer fare rate, with the said minimum-maximum
fare range applying only to ordinary, first class and
premium class buses and a fifty-centavo (P0.50)
minimum per kilometer fare for aircon buses, was
sought.
On December 6, 1990, private respondent PBOAP
reduced its applied proposed fare to an across-the-
board increase of six and a half (P0.065) centavos per
kilometer for ordinary buses. The decrease was due to
the drop in the expected price of diesel.
The application was opposed by the Philippine
Consumers Foundation, Inc. and Perla C. Bautista
alleging that the proposed rates were exorbitant and
unreasonable and that the application contained no
allegation on the rate of return of the proposed increase
in rates.
On December 14, 1990, public respondent LTFRB
rendered a decision granting the fare rate increase in
accordance with the following schedule of fares on a
straight computation method, viz:
AUTHORIZED FARES
LUZON
MIN. OF 5 KMS. SUCCEEDING KM.
REGULAR P1.50 P0.37
STUDENT P1.15 P0.28
VISAYAS/MINDANAO
REGULAR P1.60 P0.375
STUDENT P1.20 P0.285
FIRST CLASS (PER KM.)
LUZON P0.385
VISAYAS/
MINDANAO P0.395
PREMIERE CLASS (PER KM.)
LUZON P0.395
VISAYAS/
MINDANAO P0.405
AIRCON (PER KM.) P0.415. 4
On March 30, 1992, then Secretary of the Department of
Transportation and Communications Pete Nicomedes
Prado issued Department Order No.
92-587 defining the policy framework on the regulation
of transport services. The full text of the said order is
reproduced below in view of the importance of the
provisions contained therein:
WHEREAS, Executive Order No. 125 as amended,
designates the Department of Transportation and
Communications (DOTC) as the primary policy,
planning, regulating and implementing agency on
transportation;
WHEREAS, to achieve the objective of a viable, efficient,
and dependable transportation system, the
transportation regulatory agencies under or attached to
the DOTC have to harmonize their decisions and adopt a
common philosophy and direction;
WHEREAS, the government proposes to build on the
successful liberalization measures pursued over the last
five years and bring the transport sector nearer to a
balanced longer term regulatory framework;
NOW, THEREFORE, pursuant to the powers granted by
laws to the DOTC, the following policies and principles
in the economic regulation of land, air, and water
transportation services are hereby adopted:
1. Entry into and exit out of the industry. Following the
Constitutional dictum against monopoly, no franchise
holder shall be permitted to maintain a monopoly on
any route. A minimum of two franchise holders shall be
permitted to operate on any route.
The requirements to grant a certificate to operate, or
certificate of public convenience, shall be: proof of
Filipino citizenship, financial capability, public need, and
sufficient insurance cover to protect the riding public.
In determining public need, the presumption of need for a
service shall be deemed in favor of the applicant. The
burden of proving that there is no need for a proposed
service shall be with the oppositor(s).
In the interest of providing efficient public transport
services, the use of the "prior operator" and the
"priority of filing" rules shall be discontinued. The route
measured capacity test or other similar tests of demand
for vehicle/vessel fleet on any route shall be used only
as a guide in weighing the merits of each franchise
application and not as a limit to the services offered.
Where there are limitations in facilities, such as
congested road space in urban areas, or at airports and
ports, the use of demand management measures in
conformity with market principles may be considered.
The right of an operator to leave the industry is
recognized as a business decision, subject only to the
filing of appropriate notice and following a phase-out
period, to inform the public and to minimize disruption
of services.
2. Rate and Fare Setting. Freight rates shall be freed
gradually from government controls. Passenger fares
shall also be deregulated, except for the lowest class of
passenger service (normally third class passenger
transport) for which the government will fix indicative or
reference fares. Operators of particular services may fix
their own fares within a range 15% above and below the
indicative or reference rate.
Where there is lack of effective competition for services,
or on specific routes, or for the transport of particular
commodities, maximum mandatory freight rates or
passenger fares shall be set temporarily by the
government pending actions to increase the level of
competition.
For unserved or single operator routes, the government
shall contract such services in the most advantageous
terms to the public and the government, following
public bids for the services. The advisability of bidding
out the services or using other kinds of incentives on
such routes shall be studied by the government.
3. Special Incentives and Financing for Fleet Acquisition.
As a matter of policy, the government shall not engage in
special financing and incentive programs, including
direct subsidies for fleet acquisition and expansion.
Only when the market situation warrants government
94
intervention shall programs of this type be considered.
Existing programs shall be phased out gradually.
The Land Transportation Franchising and Regulatory
Board, the Civil Aeronautics Board, the Maritime
Industry Authority are hereby directed to submit to the
Office of the Secretary, within forty-five (45) days of this
Order, the detailed rules and procedures for the
Implementation of the policies herein set forth. In the
formulation of such rules, the concerned agencies shall
be guided by the most recent studies on the subjects,
such as the Provincial Road Passenger Transport Study,
the Civil Aviation Master Plan, the Presidential Task
Force on the Inter-island Shipping Industry, and the
Inter-island Liner Shipping Rate Rationalization Study.
For the compliance of all concerned. (Emphasis ours)
On October 8, 1992, public respondent Secretary of the
Department of Transportation and Communications
Jesus B. Garcia, Jr. issued a memorandum to the Acting
Chairman of the LTFRB suggesting swift action on the
adoption of rules and procedures to implement above-
quoted Department Order No. 92-587 that laid down
deregulation and other liberalization policies for the
transport sector. Attached to the said memorandum was
a revised draft of the required rules and procedures
covering (i) Entry Into and Exit Out of the Industry and
(ii) Rate and Fare Setting, with comments and
suggestions from the World Bank incorporated therein.
Likewise, resplendent from the said memorandum is the
statement of the DOTC Secretary that the adoption of
the rules and procedures is a pre-requisite to the
approval of the Economic Integration Loan from the
World Bank. 5
On February 17, 1993, the LTFRB issued Memorandum
Circular
No. 92-009 promulgating the guidelines for the
implementation of DOTC Department Order No. 92-587.
The Circular provides, among others, the following
challenged portions:
xxx xxx xxx
IV. Policy Guidelines on the Issuance of Certificate of
Public Convenience.
The issuance of a Certificate of Public Convenience is
determined by public need. The presumption of public
need for a service shall be deemed in favor of the
applicant, while burden of proving that there is no need
for the proposed service shall be the oppositor'(s).
xxx xxx xxx
V. Rate and Fare Setting
The control in pricing shall be liberalized to introduce
price competition complementary with the quality of
service, subject to prior notice and public hearing. Fares
shall not be provisionally authorized without public
hearing.
A. On the General Structure of Rates
1. The existing authorized fare range system of plus or
minus 15 per cent for provincial buses and jeepneys shall
be widened to 20% and -25% limit in 1994 with the
authorized fare to be replaced by an indicative or
reference rate as the basis for the expanded fare range.
2. Fare systems for aircon buses are liberalized to cover
first class and premier services.
xxx xxx xxx
(Emphasis ours).
Sometime in March, 1994, private respondent PBOAP,
availing itself of the deregulation policy of the DOTC
allowing provincial bus operators to collect plus 20%
and minus 25% of the prescribed fare without first
having filed a petition for the purpose and without the
benefit of a public hearing, announced a fare increase of
twenty (20%) percent of the existing fares. Said
increased fares were to be made effective on March 16,
1994.
On March 16, 1994, petitioner KMU filed a petition
before the LTFRB opposing the upward adjustment of
bus fares.
On March 24, 1994, the LTFRB issued one of the assailed
orders dismissing the petition for lack of merit. The
dispositive portion reads:
PREMISES CONSIDERED, this Board after considering
the arguments of the parties, hereby DISMISSES FOR
LACK OF MERIT the petition filed in the above-entitled
case. This petition in this case was resolved with
dispatch at the request of petitioner to enable it to
immediately avail of the legal remedies or options it is
entitled under existing laws.
SO ORDERED. 6
Hence, the instant petition for certiorari with an urgent
prayer for issuance of a temporary restraining order.
The Court, on June 20, 1994, issued a temporary
restraining order enjoining, prohibiting and preventing
respondents from implementing the bus fare rate
increase as well as the questioned orders and
memorandum circulars. This meant that provincial bus
fares were rolled back to the levels duly authorized by
the LTFRB prior to March 16, 1994. A moratorium was
likewise enforced on the issuance of franchises for the
operation of buses, jeepneys, and taxicabs.
Petitioner KMU anchors its claim on two (2) grounds.
First, the authority given by respondent LTFRB to
provincial bus operators to set a fare range of plus or
minus fifteen (15%) percent, later increased to plus
twenty (20%) and minus twenty-five (-25%) percent,
over and above the existing authorized fare without
having to file a petition for the purpose, is
unconstitutional, invalid and illegal. Second, the
establishment of a presumption of public need in favor
of an applicant for a proposed transport service without
having to prove public necessity, is illegal for being
violative of the Public Service Act and the Rules of Court.
In its Comment, private respondent PBOAP, while not
actually touching upon the issues raised by the
petitioner, questions the wisdom and the manner by
which the instant petition was filed. It asserts that the
petitioner has no legal standing to sue or has no real
interest in the case at bench and in obtaining the reliefs
prayed for.
In their Comment filed by the Office of the Solicitor
General, public respondents DOTC Secretary Jesus B.
Garcia, Jr. and the LTFRB asseverate that the petitioner
does not have the standing to maintain the instant suit.
They further claim that it is within DOTC and LTFRB's
authority to set a fare range scheme and establish a
presumption of public need in applications for
certificates of public convenience.
We find the instant petition impressed with merit.
At the outset, the threshold issue of locus standi must be
struck. Petitioner KMU has the standing to sue.
The requirement of locus standi inheres from the
definition of judicial power. Section 1 of Article VIII of
the Constitution provides:
xxx xxx xxx
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.
In Lamb v. Phipps, 7 we ruled that judicial power is the
power to hear and decide causes pending between
parties who have the right to sue in the courts of law
and equity. Corollary to this provision is the principle
of locus standi of a party litigant. One who is directly
affected by and whose interest is immediate and
substantial in the controversy has the standing to sue.
The rule therefore requires that a party must show a
95
personal stake in the outcome of the case or an injury to
himself that can be redressed by a favorable decision so
as to warrant an invocation of the court's jurisdiction
and to justify the exercise of the court's remedial
powers in his behalf. 8
In the case at bench, petitioner, whose members had
suffered and continue to suffer grave and irreparable
injury and damage from the implementation of the
questioned memoranda, circulars and/or orders, has
shown that it has a clear legal right that was violated
and continues to be violated with the enforcement of
the challenged memoranda, circulars and/or orders.
KMU members, who avail of the use of buses, trains and
jeepneys everyday, are directly affected by the
burdensome cost of arbitrary increase in passenger
fares. They are part of the millions of commuters who
comprise the riding public. Certainly, their rights must
be protected, not neglected nor ignored.
Assuming arguendo that petitioner is not possessed of
the standing to sue, this court is ready to brush aside
this barren procedural infirmity and recognize the legal
standing of the petitioner in view of the transcendental
importance of the issues raised. And this act of liberality
is not without judicial precedent. As early as
the Emergency Powers Cases, this Court had exercised its
discretion and waived the requirement of proper party.
In the recent case of Kilosbayan, Inc., et al. v. Teofisto
Guingona, Jr., et al., 9 we ruled in the same lines and
enumerated some of the cases where the same policy
was adopted, viz:
. . . A party's standing before this Court is a procedural
technicality which it may, in the exercise of its
discretion, set aside in view of the importance of the
issues raised. In the landmark Emergency Powers Cases,
[G.R. No. L-2044 (Araneta v. Dinglasan); G.R. No. L-2756
(Araneta
v. Angeles); G.R. No. L-3054 (Rodriguez v. Tesorero de
Filipinas); G.R. No. L-3055 (Guerrero v. Commissioner of
Customs); and G.R. No. L-3056 (Barredo v. Commission
on Elections), 84 Phil. 368 (1949)], this Court brushed
aside this technicality because "the transcendental
importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside,
if we must, technicalities of procedure. (Avelino vs.
Cuenco, G.R. No. L-2621)." Insofar as taxpayers' suits are
concerned, this Court had declared that it "is not devoid
of discretion as to whether or not it should be
entertained," (Tan v. Macapagal, 43 SCRA 677, 680
[1972]) or that it "enjoys an open discretion to entertain
the same or not." [Sanidad v. COMELEC, 73 SCRA 333
(1976)].
xxx xxx xxx
In line with the liberal policy of this Court on locus
standi, ordinary taxpayers, members of Congress, and
even association of planters, and
non-profit civic organizations were allowed to initiate
and prosecute actions before this court to question the
constitutionality or validity of laws, acts, decisions,
rulings, or orders of various government agencies or
instrumentalities. Among such cases were those
assailing the constitutionality of (a) R.A. No. 3836
insofar as it allows retirement gratuity and
commutation of vacation and sick leave to Senators and
Representatives and to elective officials of both Houses
of Congress (Philippine Constitution Association, Inc. v.
Gimenez, 15 SCRA 479 [1965]); (b) Executive Order No.
284, issued by President Corazon C. Aquino on 25 July
1987, which allowed members of the cabinet, their
undersecretaries, and assistant secretaries to hold other
government offices or positions (Civil Liberties Union v.
Executive Secretary, 194 SCRA 317 [1991]); (c) the
automatic appropriation for debt service in the General
Appropriations Act (Guingona v. Carague, 196 SCRA 221
[1991]; (d) R.A. No. 7056 on the holding of
desynchronized elections (Osmenñ a v. Commission on
Elections, 199 SCRA 750 [1991]); (e) P.D. No. 1869 (the
charter of the Philippine Amusement and Gaming
Corporation) on the ground that it is contrary to morals,
public policy, and order (Basco v. Philippine Amusement
and Gaming Corp., 197 SCRA 52 [1991]); and (f) R.A. No.
6975, establishing the Philippine National Police.
(Carpio v. Executive Secretary, 206 SCRA 290 [1992]).
Other cases where we have followed a liberal policy
regarding locus standi include those attacking the
validity or legality of (a) an order allowing the
importation of rice in the light of the prohibition
imposed by R.A. No. 3452 (Iloilo Palay and Corn
Planters Association, Inc. v. Feliciano, 13 SCRA 377
[1965]; (b) P.D. Nos. 991 and 1033 insofar as they
proposed amendments to the Constitution and P.D. No.
1031 insofar as it directed the COMELEC to supervise,
control, hold, and conduct the referendum-plebiscite on
16 October 1976 (Sanidad v. Commission on
Elections, supra); (c) the bidding for the sale of the
3,179 square meters of land at Roppongi, Minato-ku,
Tokyo, Japan (Laurel v. Garcia, 187 SCRA 797 [1990]);
(d) the approval without hearing by the Board of
Investments of the amended application of the Bataan
Petrochemical Corporation to transfer the site of its
plant from Bataan to Batangas and the validity of such
transfer and the shift of feedstock from naphtha only to
naphtha and/or liquefied petroleum gas (Garcia v.
Board of Investments, 177 SCRA 374 [1989]; Garcia v.
Board of Investments, 191 SCRA 288 [1990]); (e) the
decisions, orders, rulings, and resolutions of the
Executive Secretary, Secretary of Finance, Commissioner
of Internal Revenue, Commissioner of Customs, and the
Fiscal Incentives Review Board exempting the National
Power Corporation from indirect tax and duties
(Maceda v. Macaraig, 197 SCRA 771 [1991]); (f) the
orders of the Energy Regulatory Board of 5 and 6
December 1990 on the ground that the hearings
conducted on the second provisional increase in oil
prices did not allow the petitioner substantial cross-
examination; (Maceda v. Energy Regulatory Board, 199
SCRA 454 [1991]); (g) Executive Order No. 478 which
levied a special duty of P0.95 per liter of imported oil
products (Garcia v. Executive Secretary, 211 SCRA 219
[1992]); (h) resolutions of the Commission on Elections
concerning the apportionment, by district, of the
number of elective members of Sanggunians (De Guia
vs. Commission on Elections, 208 SCRA 420 [1992]);
and (i) memorandum orders issued by a Mayor affecting
the Chief of Police of Pasay City (Pasay Law and
Conscience Union, Inc. v. Cuneta, 101 SCRA 662 [1980]).
In the 1975 case of Aquino v. Commission on
Elections (62 SCRA 275 [1975]), this Court, despite its
unequivocal ruling that the petitioners therein had no
personality to file the petition, resolved nevertheless to
pass upon the issues raised because of the far-reaching
implications of the petition. We did no less in De Guia v.
COMELEC (Supra) where, although we declared that De
Guia "does not appear to have locus standi, a standing in
law, a personal or substantial interest," we brushed
aside the procedural infirmity "considering the
importance of the issue involved, concerning as it does
the political exercise of qualified voters affected by the
apportionment, and petitioner alleging abuse of
discretion and violation of the Constitution by
respondent."
Now on the merits of the case.
On the fare range scheme.
Section 16(c) of the Public Service Act, as amended,
reads:
Sec. 16. Proceedings of the Commission, upon notice and
hearing. — The Commission shall have power, upon
proper notice and hearing in accordance with the rules
96
and provisions of this Act, subject to the limitations and
exceptions mentioned and saving provisions to the
contrary:
xxx xxx xxx
(c) To fix and determine individual or joint rates, tolls,
charges, classifications, or schedules thereof, as well as
commutation, mileage kilometrage, and other special
rates which shall be imposed, observed, and followed
thereafter by any public service: Provided, That the
Commission may, in its discretion, approve rates
proposed by public services provisionally and without
necessity of any hearing; but it shall call a hearing
thereon within thirty days thereafter, upon publication
and notice to the concerns operating in the territory
affected: Provided, further, That in case the public
service equipment of an operator is used principally or
secondarily for the promotion of a private business, the
net profits of said private business shall be considered
in relation with the public service of such operator for
the purpose of fixing the rates. (Emphasis ours).
xxx xxx xxx
Under the foregoing provision, the Legislature delegated
to the defunct Public Service Commission the power of
fixing the rates of public services. Respondent LTFRB,
the existing regulatory body today, is likewise vested
with the same under Executive Order No. 202 dated
June 19, 1987. Section 5(c) of the said executive order
authorizes LTFRB "to determine, prescribe, approve and
periodically review and adjust, reasonable fares, rates
and other related charges, relative to the operation of
public land transportation services provided by
motorized vehicles."
Such delegation of legislative power to an
administrative agency is permitted in order to adapt to
the increasing complexity of modern life. As subjects for
governmental regulation multiply, so does the difficulty
of administering the laws. Hence, specialization even in
legislation has become necessary. Given the task of
determining sensitive and delicate matters as
route-fixing and rate-making for the transport sector,
the responsible regulatory body is entrusted with the
power of subordinate legislation. With this authority, an
administrative body and in this case, the LTFRB, may
implement broad policies laid down in a statute by
"filling in" the details which the Legislature may neither
have time or competence to provide. However, nowhere
under the aforesaid provisions of law are the regulatory
bodies, the PSC and LTFRB alike, authorized to delegate
that power to a common carrier, a transport operator, or
other public service.
In the case at bench, the authority given by the LTFRB to
the provincial bus operators to set a fare range over and
above the authorized existing fare, is illegal and invalid
as it is tantamount to an undue delegation of legislative
authority. Potestas delegata non delegari potest. What
has been delegated cannot be delegated. This doctrine is
based on the ethical principle that such a delegated
power constitutes not only a right but a duty to be
performed by the delegate through the instrumentality
of his own judgment and not through the intervening
mind of another. 10 A further delegation of such power
would indeed constitute a negation of the duty in
violation of the trust reposed in the delegate mandated
to discharge it directly. 11 The policy of allowing the
provincial bus operators to change and increase their
fares at will would result not only to a chaotic situation
but to an anarchic state of affairs. This would leave the
riding public at the mercy of transport operators who
may increase fares every hour, every day, every month
or every year, whenever it pleases them or whenever
they deem it "necessary" to do so. In Panay Autobus Co.
v. Philippine Railway Co., 12 where respondent Philippine
Railway Co. was granted by the Public Service
Commission the authority to change its freight rates at
will, this Court categorically declared that:
In our opinion, the Public Service Commission was not
authorized by law to delegate to the Philippine Railway
Co. the power of altering its freight rates whenever it
should find it necessary to do so in order to meet the
competition of road trucks and autobuses, or to change
its freight rates at will, or to regard its present rates as
maximum rates, and to fix lower rates whenever in the
opinion of the Philippine Railway Co. it would be to its
advantage to do so.
The mere recital of the language of the application of the
Philippine Railway Co. is enough to show that it is
untenable. The Legislature has delegated to the Public
Service Commission the power of fixing the rates of public
services, but it has not authorized the Public Service
Commission to delegate that power to a common carrier
or other public service. The rates of public services like
the Philippine Railway Co. have been approved or fixed
by the Public Service Commission, and any change in
such rates must be authorized or approved by the Public
Service Commission after they have been shown to be
just and reasonable. The public service may, of course,
propose new rates, as the Philippine Railway Co. did in
case No. 31827, but it cannot lawfully make said new
rates effective without the approval of the Public Service
Commission, and the Public Service Commission itself
cannot authorize a public service to enforce new rates
without the prior approval of said rates by the
commission. The commission must approve new rates
when they are submitted to it, if the evidence shows
them to be just and reasonable, otherwise it must
disapprove them. Clearly, the commission cannot
determine in advance whether or not the new rates of
the Philippine Railway Co. will be just and reasonable,
because it does not know what those rates will be.
In the present case the Philippine Railway Co. in effect
asked for permission to change its freight rates at will. It
may change them every day or every hour, whenever it
deems it necessary to do so in order to meet
competition or whenever in its opinion it would be to its
advantage. Such a procedure would create a most
unsatisfactory state of affairs and largely defeat the
purposes of the public service law. 13(Emphasis ours).
One veritable consequence of the deregulation of
transport fares is a compounded fare. If transport
operators will be authorized to impose and collect an
additional amount equivalent to 20% over and above
the authorized fare over a period of time, this will
unduly prejudice a commuter who will be made to pay a
fare that has been computed in a manner similar to
those of compounded bank interest rates.
Picture this situation. On December 14, 1990, the LTFRB
authorized provincial bus operators to collect a thirty-
seven (P0.37) centavo per kilometer fare for ordinary
buses. At the same time, they were allowed to impose
and collect a fare range of plus or minus 15% over the
authorized rate. Thus P0.37 centavo per kilometer
authorized fare plus P0.05 centavos (which is 15% of
P0.37 centavos) is equivalent to P0.42 centavos, the
allowed rate in 1990. Supposing the LTFRB grants
another five (P0.05) centavo increase per kilometer in
1994, then, the base or reference for computation would
have to be P0.47 centavos (which is P0.42 + P0.05
centavos). If bus operators will exercise their authority
to impose an additional 20% over and above the
authorized fare, then the fare to be collected shall
amount to P0.56 (that is, P0.47 authorized LTFRB rate
plus 20% of P0.47 which is P0.29). In effect, commuters
will be continuously subjected, not only to a double fare
adjustment but to a compounding fare as well. On their
part, transport operators shall enjoy a bigger chunk of
the pie. Aside from fare increase applied for, they can
97
still collect an additional amount by virtue of the
authorized fare range. Mathematically, the situation
translates into the following:
Year** LTFRB authorized Fare Range Fare to be
rate*** collected per
kilometer
1990 P0.37 15% (P0.05) P0.42
1994 P0.42 + 0.05 = 0.47 20% (P0.09) P0.56
1998 P0.56 + 0.05 = 0.61 20% (P0.12) P0.73
2002 P0.73 + 0.05 = 0.78 20% (P0.16) P0.94
Moreover, rate making or rate fixing is not an easy task.
It is a delicate and sensitive government function that
requires dexterity of judgment and sound discretion
with the settled goal of arriving at a just and reasonable
rate acceptable to both the public utility and the public.
Several factors, in fact, have to be taken into
consideration before a balance could be achieved. A rate
should not be confiscatory as would place an operator
in a situation where he will continue to operate at a loss.
Hence, the rate should enable public utilities to generate
revenues sufficient to cover operational costs and
provide reasonable return on the investments. On the
other hand, a rate which is too high becomes
discriminatory. It is contrary to public interest. A rate,
therefore, must be reasonable and fair and must
be affordable to the end user who will utilize the
services.
Given the complexity of the nature of the function of
rate-fixing and its far-reaching effects on millions of
commuters, government must not relinquish this
important function in favor of those who would benefit
and profit from the industry. Neither should the
requisite notice and hearing be done away with. The
people, represented by reputable oppositors, deserve to
be given full opportunity to be heard in their opposition
to any fare increase.
The present administrative procedure, 14 to our mind,
already mirrors an orderly and satisfactory
arrangement for all parties involved. To do away with
such a procedure and allow just one party, an interested
party at that, to determine what the rate should be, will
undermine the right of the other parties to due process.
The purpose of a hearing is precisely to determine what
a just and reasonable rate is. 15 Discarding such
procedural and constitutional right is certainly inimical
to our fundamental law and to public interest.
On the presumption of public need.
A certificate of public convenience (CPC) is an
authorization granted by the LTFRB for the operation of
land transportation services for public use as required
by law. Pursuant to Section 16(a) of the Public Service
Act, as amended, the following requirements must be
met before a CPC may be granted, to wit: (i) the
applicant must be a citizen of the Philippines, or a
corporation or co-partnership, association or joint-stock
company constituted and organized under the laws of
the Philippines, at least 60 per centum of its stock or
paid-up capital must belong entirely to citizens of the
Philippines; (ii) the applicant must be financially
capable of undertaking the proposed service and
meeting the responsibilities incident to its operation;
and (iii) the applicant must prove that the operation of
the public service proposed and the authorization to do
business will promote the public interest in a proper and
suitable manner. It is understood that there must be
proper notice and hearing before the PSC can exercise
its power to issue a CPC.
While adopting in toto the foregoing requisites for the
issuance of a CPC, LTFRB Memorandum Circular No. 92-
009, Part IV, provides for yet incongruous and
contradictory policy guideline on the issuance of a CPC.
The guidelines states:
The issuance of a Certificate of Public Convenience is
determined by public need. The presumption of public
need for a service shall be deemed in favor of the
applicant, while the burden of proving that there is no
need for the proposed service shall be the
oppositor's. (Emphasis ours).
The above-quoted provision is entirely incompatible
and inconsistent with Section 16(c)(iii) of the Public
Service Act which requires that before a CPC will be
issued, the applicant must prove by proper notice and
hearing that the operation of the public service
proposed will promote public interest in a proper and
suitable manner. On the contrary, the policy guideline
states that the presumption of public need for a public
service shall be deemed in favor of the applicant. In case
of conflict between a statute and an administrative
order, the former must prevail.
By its terms, public convenience or necessity generally
means something fitting or suited to the public
need. 16 As one of the basic requirements for the grant of
a CPC, public convenience and necessity exists when the
proposed facility or service meets a reasonable want of
the public and supply a need which the existing facilities
do not adequately supply. The existence or
non-existence of public convenience and necessity is
therefore a question of fact that must be established by
evidence, real and/or testimonial; empirical data;
statistics and such other means necessary, in a public
hearing conducted for that purpose. The object and
purpose of such procedure, among other things, is to
look out for, and protect, the interests of both the public
and the existing transport operators.
Verily, the power of a regulatory body to issue a CPC is
founded on the condition that after full-dress hearing
and investigation, it shall find, as a fact, that the
proposed operation is for the convenience of the
public. 17 Basic convenience is the primary consideration
for which a CPC is issued, and that fact alone must be
consistently borne in mind. Also, existing operators in
subject routes must be given an opportunity to offer
proof and oppose the application. Therefore, an
applicant must, at all times, be required to prove his
capacity and capability to furnish the service which he
has undertaken to
render. 18 And all this will be possible only if a public
hearing were conducted for that purpose.
Otherwise stated, the establishment of public need in
favor of an applicant reverses well-settled and
institutionalized judicial, quasi-judicial and
administrative procedures. It allows the party who
initiates the proceedings to prove, by mere application,
his affirmative allegations. Moreover, the offending
provisions of the LTFRB memorandum circular in
question would in effect amend the Rules of Court by
adding another disputable presumption in the
enumeration of 37 presumptions under Rule 131,
Section 5 of the Rules of Court. Such usurpation of this
Court's authority cannot be countenanced as only this
Court is mandated by law to promulgate rules
concerning pleading, practice and procedure. 19
Deregulation, while it may be ideal in certain situations,
may not be ideal at all in our country given the present
circumstances. Advocacy of liberalized franchising and
regulatory process is tantamount to an abdication by
the government of its inherent right to exercise police
power, that is, the right of government to regulate public
utilities for protection of the public and the utilities
themselves.
While we recognize the authority of the DOTC and the
LTFRB to issue administrative orders to regulate the
transport sector, we find that they committed grave
abuse of discretion in issuing DOTC Department Order
No. 92-587 defining the policy framework on the
regulation of transport services and LTFRB
Memorandum Circular No. 92-009 promulgating the
98
implementing guidelines on DOTC Department Order
No. 92-587, the said administrative issuances being
amendatory and violative of the Public Service Act and
the Rules of Court. Consequently, we rule that the
twenty (20%) per centum fare increase imposed by
respondent PBOAP on March 16, 1994 without the
benefit of a petition and a public hearing is null and void
and of no force and effect. No grave abuse of discretion
however was committed in the issuance of DOTC
Memorandum Order No. 90-395 and DOTC
Memorandum dated October 8, 1992, the same being
merely internal communications between
administrative officers.
WHEREFORE, in view of the foregoing, the instant
petition is hereby GRANTED and the challenged
administrative issuances and orders, namely: DOTC
Department Order No. 92-587, LTFRB Memorandum
Circular
No. 92-009, and the order dated March 24, 1994 issued
by respondent LTFRB are hereby DECLARED contrary to
law and invalid insofar as they affect provisions therein
(a) delegating to provincial bus and jeepney operators
the authority to increase or decrease the duly
prescribed transportation fares; and (b) creating a
presumption of public need for a service in favor of the
applicant for a certificate of public convenience and
placing the burden of proving that there is no need for
the proposed service to the oppositor.
The Temporary Restraining Order issued on June 20,
1994 is hereby MADE PERMANENT insofar as it
enjoined the bus fare rate increase granted under the
provisions of the aforementioned administrative
circulars, memoranda and/or orders declared invalid.
No pronouncement as to costs.
SO ORDERED.
ASSOCIATIONAL STANDING
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs. HON. RONALDO B. ZAMORA, GEN. PANFILO M.
LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO
REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and
prohibition with prayer for issuance of a temporary
restraining order seeking to nullify on constitutional
grounds the order of President Joseph Ejercito Estrada
commanding the deployment of the Philippine Marines
(the Marines) to join the Philippine National Police (the
PNP) in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in
Metro Manila, like robberies, kidnappings and
carnappings, the President, in a verbal directive,
ordered the PNP and the Marines to conduct joint
visibility patrols for the purpose of crime prevention
and suppression. The Secretary of National Defense, the
Chief of Staff of the Armed Forces of the Philippines (the
AFP), the Chief of the PNP and the Secretary of the
Interior and Local Government were tasked to execute
and implement the said order. In compliance with the
presidential mandate, the PNP Chief, through Police
Chief Superintendent Edgar B. Aglipay, formulated
Letter of Instruction 02/2000[1] (the LOI) which detailed
the manner by which the joint visibility patrols, called
Task Force Tulungan, would be conducted.[2] Task
Force Tulungan was placed under the leadership of the
Police Chief of Metro Manila.
Subsequently, the President confirmed his previous
directive on the deployment of the Marines in a
Memorandum, dated 24 January 2000, addressed to the
Chief of Staff of the AFP and the PNP Chief.[3] In the
Memorandum, the President expressed his desire to
improve the peace and order situation in Metro Manila
through a more effective crime prevention program
including increased police patrols.[4] The President
further stated that to heighten police visibility in the
metropolis, augmentation from the AFP is necessary.
[5]
Invoking his powers as Commander-in-Chief under
Section 18, Article VII of the Constitution, the President
directed the AFP Chief of Staff and PNP Chief to
coordinate with each other for the proper deployment
and utilization of the Marines to assist the PNP in
preventing or suppressing criminal or lawless violence.
[6]
Finally, the President declared that the services of the
Marines in the anti-crime campaign are merely
temporary in nature and for a reasonable period only,
until such time when the situation shall have improved.
[7]
The LOI explains the concept of the PNP-Philippine
Marines joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between
the PNP NCRPO and the Philippine Marines partnership
in the conduct of visibility patrols in Metro Manila for the
suppression of crime prevention and other serious threats
to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been
perpetrated not only by ordinary criminals but also by
organized syndicates whose members include active and
former police/military personnel whose training, skill,
discipline and firepower prove well-above the present
capability of the local police alone to handle. The
deployment of a joint PNP NCRPO-Philippine Marines in
the conduct of police visibility patrol in urban areas will
reduce the incidence of crimes specially those perpetrated
by active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to
conduct joint NCRPO-PM visibility patrols to keep Metro
Manila streets crime-free, through a sustained street
patrolling to minimize or eradicate all forms of high-
profile crimes especially those perpetrated by organized
crime syndicates whose members include those that are
well-trained, disciplined and well-armed active or former
PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the
NCRPO [National Capital Regional Police Office] and the
Philippine Marines to curb criminality in Metro Manila
and to preserve the internal security of the state against
insurgents and other serious threat to national security,
although the primary responsibility over Internal
Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied
to eradicate all forms of high-profile crimes perpetrated
by organized crime syndicates operating in Metro Manila.
This concept requires the military and police to work
cohesively and unify efforts to ensure a focused, effective
and holistic approach in addressing crime prevention.
Along this line, the role of the military and police aside
from neutralizing crime syndicates is to bring a
wholesome atmosphere wherein delivery of basic services
to the people and development is achieved. Hand-in-hand
with this joint NCRPO-Philippine Marines visibility
patrols, local Police Units are responsible for the
maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a
provisional Task Force TULUNGAN shall be organized to
provide the mechanism, structure, and procedures for the
integrated planning, coordinating, monitoring and
assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are:
Monumento Circle, North Edsa (SM City), Araneta
99
Shopping Center, Greenhills, SM Megamall, Makati
Commercial Center, LRT/MRT Stations and the NAIA
and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the
Philippines (the IBP) filed the instant petition to annul
LOI 02/2000 and to declare the deployment of the
Philippine Marines, null and void and unconstitutional,
arguing that:
I the armed forces to assist the PNP in joint visibility
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN
METRO MANILA IS VIOLATIVE OF THE CONSTITUTION,
IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO
MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY,
THE DEPLOYMENT OF SOLDIERS FOR LAW
ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS
IN DEROGATION OF ARTICLE II, SECTION 3 OF THE
CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS
INCURSION BY THE MILITARY IN A CIVILIAN
FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN
DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE
CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS
TENDENCY TO RELY ON THE MILITARY TO PERFORM
THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO
MANILA, THE ADMINISTRATION IS UNWITTINGLY
MAKING THE MILITARY MORE POWERFUL THAN
WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.[10]
Asserting itself as the official organization of Filipino
lawyers tasked with the bounden duty to uphold the
rule of law and the Constitution, the IBP questions the
validity of the deployment and utilization of the Marines
to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in
a Resolution,[11] dated 25 January 2000, required the
Solicitor General to file his Comment on the petition. On
8 February 2000, the Solicitor General submitted his
Comment.
The Solicitor General vigorously defends the
constitutionality of the act of the President in deploying
the Marines, contending, among others, that petitioner
has no legal standing; that the question of deployment
of the Marines is not proper for judicial scrutiny since
the same involves a political question; that the
organization and conduct of police visibility patrols,
which feature the team-up of one police officer and one
Philippine Marine soldier, does not violate the civilian
supremacy clause in the Constitution.
The issues raised in the present petition are: (1)
Whether or not petitioner has legal standing;
(2) Whether or not the Presidents factual determination
of the necessity of calling the armed forces is subject to
judicial review; and, (3) Whether or not the calling of
patrols violates the constitutional provisions on civilian
supremacy over the military and the civilian character
of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in
possession of the requisites of standing to raise the
issues in the petition. Second, the President did not
commit grave abuse of discretion amounting to lack or
excess of jurisdiction nor did he commit a violation of
the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1,
Article VIII of the Constitution, to wit:
Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
When questions of constitutional significance are
raised, the Court can exercise its power of judicial
review only if the following requisites are complied
with, namely: (1) the existence of an actual and
appropriate case; (2) a personal and substantial interest
of the party raising the constitutional question; (3) the
exercise of judicial review is pleaded at the earliest
opportunity; and (4) the constitutional question is
the lis motaof the case.[12]
The IBP has not sufficiently complied with the
requisites of standing in this case.
Legal standing or locus standi has been defined as a
personal and substantial interest in the case such that
the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged.
[13]
The term interest means a material interest, an
interest in issue affected by the decree, as distinguished
from mere interest in the question involved, or a mere
incidental interest.[14] The gist of the question of
standing is whether a party alleges such personal stake
in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation
of issues upon which the court depends for illumination
of difficult constitutional questions.[15]
In the case at bar, the IBP primarily anchors its standing
on its alleged responsibility to uphold the rule of law
and the Constitution. Apart from this declaration,
however, the IBP asserts no other basis in support of
its locus standi. The mere invocation by the IBP of its
duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest
which is shared by other groups and the whole
citizenry. Based on the standards above-stated, the IBP
has failed to present a specific and substantial interest
in the resolution of the case. Its fundamental purpose
which, under Section 2, Rule 139-A of the Rules of Court,
is to elevate the standards of the law profession and to
improve the administration of justice is alien to, and
cannot be affected by the deployment of the Marines.It
should also be noted that the interest of the National
President of the IBP who signed the petition, is his
alone, absent a formal board resolution authorizing him
to file the present action. To be sure, members of the
BAR, those in the judiciary included, have varying
opinions on the issue. Moreover, the IBP, assuming that
it has duly authorized the National President to file the
petition, has not shown any specific injury which it has
suffered or may suffer by virtue of the questioned
governmental act. Indeed, none of its members, whom
the IBP purportedly represents, has sustained any form
of injury as a result of the operation of the joint visibility
patrols. Neither is it alleged that any of its members has
been arrested or that their civil liberties have been
violated by the deployment of the Marines. What the
IBP projects as injurious is the supposed militarization
of law enforcement which might threaten Philippine
democratic institutions and may cause more harm than
good in the long run. Not only is the presumed injury
not personal in character, it is likewise too vague, highly
speculative and uncertain to satisfy the requirement of
standing. Since petitioner has not successfully
established a direct and personal injury as a
consequence of the questioned act, it does not possess
the personality to assail the validity of the deployment
of the Marines. This Court, however, does not
categorically rule that the IBP has absolutely no
standing to raise constitutional issues now or in the
100
future. The IBP must, by way of allegations and proof,
satisfy this Court that it has sufficient stake to obtain
judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that
this Court has the discretion to take cognizance of a suit
which does not satisfy the requirement of legal standing
when paramount interest is involved.[16] In not a few
cases, the Court has adopted a liberal attitude on
the locus standi of a petitioner where the petitioner is
able to craft an issue of transcendental significance to
the people.[17] Thus, when the issues raised are of
paramount importance to the public, the Court may
brush aside technicalities of procedure.[18] In this case, a
reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this
Court in view of their seriousness, novelty and weight as
precedents. Moreover, because peace and order are
under constant threat and lawless violence occurs in
increasing tempo, undoubtedly aggravated by the
Mindanao insurgency problem, the legal controversy
raised in the petition almost certainly will not go
away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to
resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the
factual determination of the President of the necessity
of calling the armed forces, particularly the Marines, to
aid the PNP in visibility patrols. In this regard, the IBP
admits that the deployment of the military personnel
falls under the Commander-in-Chief powers of the
President as stated in Section 18, Article VII of the
Constitution, specifically, the power to call out the
armed forces to prevent or suppress lawless violence,
invasion or rebellion. What the IBP questions, however,
is the basis for the calling of the Marines under the
aforestated provision. According to the IBP, no
emergency exists that would justify the need for the
calling of the military to assist the police force. It
contends that no lawless violence, invasion or rebellion
exist to warrant the calling of the Marines. Thus, the IBP
prays that this Court review the sufficiency of the factual
basis for said troop [Marine] deployment.[19]
The Solicitor General, on the other hand, contends that
the issue pertaining to the necessity of calling the armed
forces is not proper for judicial scrutiny since it involves
a political question and the resolution of factual issues
which are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the
scope of presidential powers and limits, and the extent
of judicial review. But, while this Court gives
considerable weight to the parties formulation of the
issues, the resolution of the controversy may warrant a
creative approach that goes beyond the narrow confines
of the issues raised. Thus, while the parties are in
agreement that the power exercised by the President is
the power to call out the armed forces, the Court is of
the view that the power involved may be no more than
the maintenance of peace and order and promotion of
the general welfare.[20] For one, the realities on the
ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full
brunt of the military is not brought upon the citizenry, a
point discussed in the latter part of this decision.In the
words of the late Justice Irene Cortes in Marcos v.
Manglapus:
More particularly, this case calls for the exercise of the
Presidents 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 Presidents 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.
xxx[21]
Nonetheless, even if it is conceded that the power
involved is the Presidents power to call out the armed
forces to prevent or suppress lawless violence, invasion
or rebellion, the resolution of the controversy will reach
a similar result.
We now address the Solicitor Generals argument that
the issue involved is not susceptible to review by the
judiciary because it involves a political question, and
thus, not justiciable.
As a general proposition, a controversy is justiciable if it
refers to a matter which is appropriate for court review.
[22]
It pertains to issues which are inherently susceptible
of being decided on grounds recognized by law.
Nevertheless, the Court does not automatically assume
jurisdiction over actual constitutional cases brought
before it even in instances that are ripe for
resolution. One class of cases wherein the Court
hesitates to rule on are political questions. The reason is
that political questions are concerned with issues
dependent upon the wisdom, not the legality, of a
particular act or measure being assailed. Moreover, the
political question being a function of the separation of
powers, the courts will not normally interfere with the
workings of another co-equal branch unless the case
shows a clear need for the courts to step in to uphold
the law and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer 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 legislative or executive branch of
government. Thus, if an issue is clearly identified by the
text of the Constitution as matters for discretionary
action by a particular branch of government or to the
people themselves then it is held to be a political
question. In the classic formulation of Justice Brennan
in Baker v. Carr,[24][p]rominent 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
nonjudicial discretion; or the impossibility of a courts
undertaking independent resolution without expressing
lack of the respect due coordinate branches of
government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality of embarassment from multifarious
pronouncements by various departments on the one
question.
The 1987 Constitution expands the concept of judicial
review by providing that (T)he 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
101
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.
[25]
Under this definition, the Court cannot agree with
the Solicitor General that the issue involved is a political
question beyond the jurisdiction of this Court to
review. When the grant of power is qualified,
conditional or subject to limitations, the issue of
whether the prescribed qualifications or conditions
have been met or the limitations respected, is justiciable
- the problem being one of legality or validity, not its
wisdom.[26] Moreover, the jurisdiction to delimit
constitutional boundaries has been given to this Court.
[27]
When political questions are involved, the
Constitution limits the determination as 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.[28]
By grave abuse of discretion is meant simply capricious
or whimsical exercise of judgment that is patent and
gross as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by
reason of passion or hostility.[29] Under this definition, a
court is without power to directly decide matters over
which full discretionary authority has been
delegated. But while this Court has no power to
substitute its judgment for that of Congress or of the
President, it may look into the question of whether such
exercise has been made in grave abuse of discretion.
[30]
A showing that plenary power is granted either
department of government, may not be an obstacle to
judicial inquiry, for the improvident exercise or abuse
thereof may give rise to justiciable controversy.[31]
When the President calls the armed forces to prevent or
suppress lawless violence, invasion or rebellion, he
necessarily exercises a discretionary power solely
vested in his wisdom. This is clear from the intent of the
framers and from the text of the Constitution itself. The
Court, thus, cannot be called upon to overrule the
Presidents wisdom or substitute its own. However, this
does not prevent an examination of whether such power
was exercised within permissible constitutional limits
or whether it was exercised in a manner constituting
grave abuse of discretion.In view of the constitutional
intent to give the President full discretionary power to
determine the necessity of calling out the armed forces,
it is incumbent upon the petitioner to show that the
Presidents decision is totally bereft of factual basis. The
present petition fails to discharge such heavy burden as
there is no evidence to support the assertion that there
exist no justification for calling out the armed
forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because
the power to call was exercised in such a manner as to
violate the constitutional provision on civilian
supremacy over the military. In the performance of this
Courts duty of purposeful hesitation[32] before declaring
an act of another branch as unconstitutional, only where
such grave abuse of discretion is clearly shown shall the
Court interfere with the Presidents judgment. To doubt
is to sustain.
There is a clear textual commitment under the
Constitution to bestow on the President full
discretionary power to call out the armed forces and to
determine the necessity for the exercise of such
power. Section 18, Article VII of the Constitution, which
embodies the powers of the President as Commander-
in-Chief, provides in part:
The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ
of habeas corpus, or place the Philippines or any part
thereof under martial law.
xxx
The full discretionary power of the President to
determine the factual basis for the exercise of the calling
out power is also implied and further reinforced in the
rest of Section 18, Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not
be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to
be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four
hours following such proclamation or suspension,
convene in accordance with its rules without need of a
call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon
within thirty days from its filing.
A state of martial law does not suspend the operation of
the Constitution, nor supplant the functioning of the
civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the
writ.
The suspension of the privilege of the writ shall apply
only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any
person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be
released.
Under the foregoing provisions, Congress may revoke
such proclamation or suspension and the Court may
review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision
dealing with the revocation or review of the Presidents
action to call out the armed forces. The distinction
places the calling out power in a different category from
the power to declare martial law and the power to
suspend the privilege of the writ of habeas corpus,
otherwise, the framers of the Constitution would have
simply lumped together the three powers and provided
for their revocation and review without any
qualification. Expressio unius est exclusio alterius. Where
the terms are expressly limited to certain matters, it
may not, by interpretation or construction, be extended
to other matters.[33] That the intent of the Constitution is
exactly what its letter says, i.e., that the power to call is
fully discretionary to the President, is extant in the
deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add
that there is a graduated power of the President as
Commander-in-Chief. First, he can call out such Armed
Forces as may be necessary to suppress lawless
102
violence; then he can suspend the privilege of the writ
of habeas corpus, then he can impose martial law. This is
a graduated sequence.
When he judges that it is necessary to impose martial
law or suspend the privilege of the writ of habeas
corpus, his judgment is subject to review. We are making
it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he
exercises this lesser power of calling on the Armed
Forces, when he says it is necessary, it is my opinion that
his judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have
imminent danger, the matter can be handled by the first
sentence: The President may call out such armed forces
to prevent or suppress lawless violence, invasion or
rebellion. So we feel that that is sufficient for handling
imminent danger.
MR. DE LOS REYES. So actually, if a President feels that
there is imminent danger, the matter can be handled by
the First Sentence: The President....may call out such
Armed Forces to prevent or suppress lawless violence,
invasion or rebellion. So we feel that that is sufficient for
handling imminent danger, of invasion or rebellion,
instead of imposing martial law or suspending the writ
of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-
in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence
by the legislature nor is it subject to judicial review. [34]
The reason for the difference in the treatment of the
aforementioned powers highlights the intent to grant
the President the widest leeway and broadest discretion
in using the power to call out because it is considered as
the lesser and more benign power compared to the
power to suspend the privilege of the writ of habeas
corpus and the power to impose martial law, both of
which involve the curtailment and suppression of
certain basic civil rights and individual freedoms, and
thus necessitating safeguards by Congress and review
by this Court.
Moreover, under Section 18, Article VII of the
Constitution, in the exercise of the power to suspend the
privilege of the writ of habeas corpusor to impose
martial law, two conditions must concur: (1) there must
be an actual invasion or rebellion and, (2) public safety
must require it. These conditions are not required in the
case of the power to call out the armed forces. The only
criterion is that whenever it becomes necessary, the
President may call the armed forces to prevent or
suppress lawless violence, invasion or rebellion." The
implication is that the President is given full discretion
and wide latitude in the exercise of the power to call as
compared to the two other powers.
If the petitioner fails, by way of proof, to support the
assertion that the President acted without factual basis,
then this Court cannot undertake an independent
investigation beyond the pleadings. The factual
necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since
matters considered for satisfying the same is a
combination of several factors which are not always
accessible to the courts. Besides the absence of textual
standards that the court may use to judge necessity,
information necessary to arrive at such judgment might
also prove unmanageable for the courts. Certain
pertinent information might be difficult to verify, or
wholly unavailable to the courts. In many instances, the
evidence upon which the President might decide that
there is a need to call out the armed forces may be of a
nature not constituting technical proof.
On the other hand, the President as Commander-in-
Chief has a vast intelligence network to gather
information, some of which may be classified as highly
confidential or affecting the security of the state. In the
exercise of the power to call, on-the-spot decisions may
be imperatively necessary in emergency situations to
avert great loss of human lives and mass destruction of
property. Indeed, the decision to call out the military to
prevent or suppress lawless violence must be done
swiftly and decisively if it were to have any effect at
all. Such a scenario is not farfetched when we consider
the present situation in Mindanao, where the
insurgency problem could spill over the other parts of
the country.The determination of the necessity for the
calling out power if subjected to unfettered judicial
scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an
injunction or a temporary restraining order every time
it is exercised.
Thus, it is the unclouded intent of the Constitution to
vest upon the President, as Commander-in-Chief of the
Armed Forces, full discretion to call forth the military
when in his judgment it is necessary to do so in order to
prevent or suppress lawless violence, invasion or
rebellion. Unless the petitioner can show that the
exercise of such discretion was gravely abused, the
Presidents exercise of judgment deserves to be
accorded respect from this Court.
The President has already determined the necessity and
factual basis for calling the armed forces. In his
Memorandum, he categorically asserted that, [V]iolent
crimes like bank/store robberies, holdups, kidnappings
and carnappings continue to occur in Metro Manila...
[35]
We do not doubt the veracity of the Presidents
assessment of the situation, especially in the light of
present developments. The Court takes judicial notice of
the recent bombings perpetrated by lawless elements in
the shopping malls, public utilities, and other public
places. These are among the areas of deployment
described in the LOI 2000. Considering all these facts,
we hold that the President has sufficient factual basis to
call for military aid in law enforcement and in the
exercise of this constitutional power.
The deployment of the Marines does not violate the
civilian supremacy clause nor does it infringe the
civilian character of the police force.
Prescinding from its argument that no emergency
situation exists to justify the calling of the Marines, the
IBP asserts that by the deployment of the Marines, the
civilian task of law enforcement is militarized in
violation of Section 3, Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not
constitute a breach of the civilian supremacy clause. The
calling of the Marines in this case constitutes
permissible use of military assets for civilian law
enforcement. The participation of the Marines in the
conduct of joint visibility patrols is appropriately
circumscribed. The limited participation of the Marines
is evident in the provisions of the LOI itself, which
sufficiently provides the metes and bounds of the
Marines authority. It is noteworthy that the local police
forces are the ones in charge of the visibility patrols at
all times, the real authority belonging to the PNP. In fact,
the Metro Manila Police Chief is the overall leader of the
PNP-Philippine Marines joint visibility patrols.[37] Under
the LOI, the police forces are tasked to brief or orient
the soldiers on police patrol procedures.[38] It is their
responsibility to direct and manage the deployment of
the Marines.[39] It is, likewise, their duty to provide the
necessary equipment to the Marines and render
logistical support to these soldiers.[40] In view of the
foregoing, it cannot be properly argued that military
authority is supreme over civilian authority. Moreover,
the deployment of the Marines to assist the PNP does
not unmake the civilian character of the police
103
force.Neither does it amount to an insidious incursion of
the military in the task of law enforcement in violation
of Section 5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo
Reyes, Chief of Staff of the AFP, by his alleged
involvement in civilian law enforcement, has been
virtually appointed to a civilian post in derogation of the
aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head
of a civilian institution, the PNP, and not with the
military. Such being the case, it does not matter whether
the AFP Chief actually participates in the Task
Force Tulungan since he does not exercise any authority
or control over the same. Since none of the Marines was
incorporated or enlisted as members of the PNP, there
can be no appointment to civilian position to speak
of. Hence, the deployment of the Marines in the joint
visibility patrols does not destroy the civilian character
of the PNP.
Considering the above circumstances, the Marines
render nothing more than assistance required in
conducting the patrols. As such, there can be no
insidious incursion of the military in civilian affairs nor
can there be a violation of the civilian supremacy clause
in the Constitution.
It is worth mentioning that military assistance to
civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience
reveals that it is not averse to requesting the assistance
of the military in the implementation and execution of
certain traditionally civil functions. As correctly pointed
out by the Solicitor General, some of the multifarious
activities wherein military aid has been rendered,
exemplifying the activities that bring both the civilian
and the military together in a relationship of
cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;
[43]
3. Relief and rescue operations during calamities and
disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program; [48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement
activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high
school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting
devices;[57]
17. Peace and order policy formulation in local
government units.[58]
This unquestionably constitutes a gloss on executive
power resulting from a systematic, unbroken, executive
practice, long pursued to the knowledge of Congress
and, yet, never before questioned.[59] What we have here
is mutual support and cooperation between the military
andcivilian authorities, not derogation of civilian
supremacy.
In the United States, where a long tradition of suspicion
and hostility towards the use of military force for
domestic purposes has persisted,[60] and whose
Constitution, unlike ours, does not expressly provide for
the power to call, the use of military personnel by
civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present
deployment of the Philippine Marines. Under thePosse
Comitatus Act[61] of the US, the use of the military in
civilian law enforcement is generally prohibited, except
in certain allowable circumstances. A provision of the
Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of
Congress, willfully uses any part of the Army or the Air
Force as posse comitatus or otherwise to execute the
laws shall be fined not more than $10,000 or
imprisoned not more than two years, or both.[62]
To determine whether there is a violation of the Posse
Comitatus Act in the use of military personnel, the US
courts[63] apply the followingstandards, to wit:
Were Army or Air Force personnel used by the civilian
law enforcement officers at Wounded Knee in such a
manner that the military personnel subjected the
citizens to the exercise of military power which was
regulatory, proscriptive, or compulsory[64] George
Washington Law Review, pp. 404-433 (1986), which
discusses the four divergent standards for assessing
acceptable involvement of military personnel in civil
law enforcement. See likewise HONORED IN
THE BREECH: PRESIDENTIAL AUTHORITY TO
EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale
Law Journal, pp. 130-152, 1973. 64 in nature, either
presently or prospectively?
xxx
When this concept is transplanted into the present legal
context, we take it to mean that military involvement,
even when not expressly authorized by the Constitution
or a statute, does not violate the Posse Comitatus Act
unless it actually regulates, forbids or compels some
conduct on the part of those claiming relief. A mere
threat of some future injury would be
insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid
standards to the present case to determine whether
there is permissible use of the military in civilian law
enforcement, the conclusion is inevitable that no
violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court
agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A[65] does not
constitute the exercise of regulatory, proscriptive, or
compulsory military power. First, the soldiers do not
control or direct the operation. This is evident from Nos.
6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers,
second, also have no power to prohibit or condemn. In
No. 9(d)[69] of Annex A, all arrested persons are brought
to the nearest police stations for proper
disposition. And last, these soldiers apply no coercive
force. The materials or equipment issued to them, as
shown in No. 8(c)[70] of Annex A, are all low impact and
defensive in character. The conclusion is that there
being no exercise of regulatory, proscriptive or
compulsory military power, the deployment of a handful
of Philippine Marines constitutes no impermissible use
of military power for civilian law enforcement. [71]
It appears that the present petition is anchored on fear
that once the armed forces are deployed, the military
will gain ascendancy, and thus place in peril our
cherished liberties. Such apprehensions, however, are
unfounded. The power to call the armed forces is just
that - calling out the armed forces. Unless, petitioner IBP
can show, which it has not, that in the deployment of the
Marines, the President has violated the fundamental
law, exceeded his authority or jeopardized the civil
liberties of the people, this Court is not inclined to
overrule the Presidents determination of the factual
basis for the calling of the Marines to prevent or
suppress lawless violence.
104
One last point. Since the institution of the joint visibility
patrol in January, 2000, not a single citizen has
complained that his political or civil rights have been
violated as a result of the deployment of the Marines. It
was precisely to safeguard peace, tranquility and the
civil liberties of the people that the joint visibility patrol
was conceived. Freedom and democracy will be in full
bloom only when people feel secure in their homes and
in the streets, not when the shadows of violence and
anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is
hereby DISMISSED.
SO ORDERED.
ASSOCIATIONAL STANDING
G.R. No. 131719 May 25, 2004
THE EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF LABOR AND
EMPLOYMENT, AND THE SECRETARY OF FOREIGN
AFFAIRS, OWWA PUNO, ADMINISTRATOR, and POEA
ADMINISTRATOR, petitioners,
vs.
THE HON. COURT OF APPEALS and ASIAN
RECRUITMENT COUNCIL PHILIPPINE CHAPTER
(ARCO-PHIL.), INC., representing its members:
Worldcare Services Internationale, Inc., Steadfast
International Recruitment Corporation, Dragon
International Manpower Services Corporation,
Verdant Manpower Mobilization Corporation, Brent
Overseas Personnel, Inc., ARL Manpower Services,
Inc., Dahlzhen International Services, Inc.,
Interworld Placement Center, Inc., Lakas Tao
Contract Services, Ltd. Co., and SSC
Multiservices, respondents.
DECISION
CALLEJO, SR., J.:
In this petition for review on certiorari, the Executive
Secretary of the President of the Philippines, the
Secretary of Justice, the Secretary of Foreign Affairs, the
Secretary of Labor and Employment, the POEA
Administrator and the OWWA Administrator, through
the Office of the Solicitor General, assail the Decision1 of
the Court of Appeals in CA-G.R. SP No. 38815 affirming
the Order2 of the Regional Trial Court of Quezon City
dated August 21, 1995 in Civil Case No. Q-95-24401,
granting the plea of the petitioners therein for a writ of
preliminary injunction and of the writ of preliminary
injunction issued by the trial court on August 24, 1995.
The Antecedents
Republic Act No. 8042, otherwise known as the Migrant
Workers and Overseas Filipinos Act of 1995, took effect
on July 15, 1995. The Omnibus Rules and Regulations
Implementing the Migrant Workers and Overseas
Filipino Act of 1995 was, thereafter, published in the
April 7, 1996 issue of the Manila Bulletin. However, even
before the law took effect, the Asian Recruitment
Council Philippine Chapter, Inc. (ARCO-Phil.) filed, on
July 17, 1995, a petition for declaratory relief under
Rule 63 of the Rules of Court with the Regional Trial
Court of Quezon City to declare as unconstitutional
Section 2, paragraph (g), Section 6, paragraphs (a) to (j),
(l) and (m), Section 7, paragraphs (a) and (b), and
Sections 9 and 10 of the law, with a plea for the issuance
of a temporary restraining order and/or writ of
preliminary injunction enjoining the respondents
therein from enforcing the assailed provisions of the
law.
In a supplement to its petition, the ARCO-Phil. alleged
that Rep. Act No. 8042 was self-executory and that no
implementing rules were needed. It prayed that the
court issue a temporary restraining order to enjoin the
enforcement of Section 6, paragraphs (a) to (m) on
illegal recruitment, Section 7 on penalties for illegal
recruitment, and Section 9 on venue of criminal actions
for illegal recruitments, viz:
Viewed in the light of the foregoing discussions, there
appears to be urgent an imperative need for this
Honorable Court to maintain the status quo by enjoining
the implementation or effectivity of the questioned
provisions of RA 8042, by way of a restraining order
otherwise, the member recruitment agencies of the
petitioner will suffer grave or irreparable damage or
injury. With the effectivity of RA 8042, a great majority
of the duly licensed recruitment agencies have stopped
or suspended their operations for fear of being
prosecuted under the provisions of a law that are unjust
and unconstitutional. This Honorable Court may take
judicial notice of the fact that processing of deployment
papers of overseas workers for the past weeks have
come to a standstill at the POEA and this has affected
thousands of workers everyday just because of the
enactment of RA 8042. Indeed, this has far reaching
effects not only to survival of the overseas manpower
supply industry and the active participating recruitment
agencies, the country’s economy which has survived
mainly due to the dollar remittances of the overseas
workers but more importantly, to the poor and the
needy who are in dire need of income-generating jobs
which can only be obtained from abroad. The loss or
injury that the recruitment agencies will suffer will then
be immeasurable and irreparable. As of now, even
foreign employers have already reduced their
manpower requirements from the Philippines due to
their knowledge that RA 8042 prejudiced and adversely
affected the local recruitment agencies.3
On August 1, 1995, the trial court issued a temporary
restraining order effective for a period of only twenty
(20) days therefrom.
After the petitioners filed their comment on the
petition, the ARCO-Phil. filed an amended petition, the
amendments consisting in the inclusion in the caption
thereof eleven (11) other corporations which it alleged
were its members and which it represented in the suit,
and a plea for a temporary restraining order enjoining
the respondents from enforcing Section 6 subsection (i),
Section 6 subsection (k) and paragraphs 15 and 16
thereof, Section 8, Section 10, paragraphs 1 and 2, and
Sections 11 and 40 of Rep. Act No. 8042.
The respondent ARCO-Phil. assailed Section 2(g) and (i),
Section 6 subsection (a) to (m), Section 7(a) to (b), and
Section 10 paragraphs (1) and (2), quoted as follows:
(g) THE STATE RECOGNIZES THAT THE ULTIMATE
PROTECTION TO ALL MIGRANT WORKERS IS THE
POSSESSION OF SKILLS. PURSUANT TO THIS AND AS
SOON AS PRACTICABLE, THE GOVERNMENT SHALL
DEPLOY AND/OR ALLOW THE DEPLOYMENT ONLY OF
SKILLED FILIPINO WORKERS.4
Sec. 2 subsection (i, 2nd par.)
Nonetheless, the deployment of Filipino overseas
workers, whether land-based or sea-based, by local
service contractors and manning agents employing
them shall be encourages (sic). Appropriate incentives
may be extended to them.
…
II. ILLEGAL RECRUITMENT
SEC. 6. Definition. – For purposes of this Act, illegal
recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring
workers and includes referring, contract services,
promising or advertising for employment abroad,
whether for profit or not, when undertaken by a non-
licensee or non-holder of authority contemplated under
Article 13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of the
Philippines: Provided, That any such non-licensee or
non-holder who, in any manner, offers or promises for a
fee employment abroad to two or more persons shall be
105
deemed so engaged. It shall, likewise, include the
following acts, whether committed by any person,
whether a non-licensee, non-holder, licensee or holder
of authority:
(a) To charge or accept directly or indirectly any amount
greater than that specified in the schedule of allowable
fees prescribed by the Secretary of Labor and
Employment, or to make a worker pay any amount
greater than that actually received by him as a loan or
advance;
(b) To furnish or publish any false notice or information
or document in relation to recruitment or employment;
(c) To give any false notice, testimony, information or
document or commit any act of misrepresentation for
the purpose of securing a license or authority under the
Labor Code;
(d) To induce or attempt to induce a worker already
employed to quit his employment in order to offer him
another unless the transfer is designed to liberate a
worker from oppressive terms and conditions of
employment;
(e) To influence or attempt to influence any person or
entity not to employ any worker who has not applied for
employment through his agency;
(f) To engage in the recruitment or placement of
workers in jobs harmful to public health or morality or
to the dignity of the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the
Secretary of Labor and Employment or by his duly
authorized representative;
(h) To fail to submit reports on the status of
employment, placement vacancies, remittance of foreign
exchange earnings, separation from jobs, departures
and such other matters or information as may be
required by the Secretary of Labor and Employment;
(i) To substitute or alter to the prejudice of the worker,
employment contracts approved and verified by the
Department of Labor and Employment from the time of
actual signing thereof by the parties up to and including
the period of the expiration of the same without the
approval of the Department of Labor and Employment;
(j) For an officer or agent of a recruitment or placement
agency to become an officer or member of the Board of
any corporation engaged in travel agency or to be
engaged directly or indirectly in the management of a
travel agency;
(k) To withhold or deny travel documents from
applicant workers before departure for monetary or
financial considerations other than those authorized
under the Labor Code and its implementing rules and
regulations;
(l) Failure to actually deploy without valid reason as
determined by the Department of Labor and
Employment; and
(m) Failure to reimburse expenses incurred by the
worker in connection with his documentation and
processing for purposes of deployment, in cases where
the deployment does not actually take place without the
worker’s fault. Illegal recruitment when committed by a
syndicate or in large scale shall be considered an offense
involving economic sabotage.
Illegal recruitment is deemed committed by a syndicate
if carried out by a group of three (3) or more persons
conspiring or confederating with one another. It is
deemed committed in large scale if committed against
three (3) or more persons individually or as a group.
The persons criminally liable for the above offenses are
the principals, accomplices and accessories. In case of
juridical persons, the officers having control,
management or direction of their business shall be
liable.
… filed by the recruitment/placement agency, as provided
SEC. 7. Penalties. –
(a) Any person found guilty of illegal recruitment shall
suffer the penalty of imprisonment of not less than six
(6) years and one (1) day but not more than twelve (12)
years and a fine of not less than two hundred thousand
pesos (P200,000.00) nor more than five hundred
thousand pesos (P500,000.00).
(b) The penalty of life imprisonment and a fine of not
less than five hundred thousand pesos (P500,000.00)
nor more than one million pesos (P1,000,000.00) shall
be imposed if illegal recruitment constitutes economic
sabotage as defined herein.
Provided, however, That the maximum penalty shall be
imposed if the person illegally recruited is less than
eighteen (18) years of age or committed by a non-
licensee or non-holder of authority.
Sec. 8.
Prohibition on Officials and Employees. – It shall be
unlawful for any official or employee of the Department
of Labor and Employment, the Philippine Overseas
Employment Administration (POEA), or the Overseas
Workers Welfare Administration (OWWA), or the
Department of Foreign Affairs, or other government
agencies involved in the implementation of this Act, or
their relatives within the fourth civil degree of
consanguinity or affinity, to engage, directly or
indirectly, in the business of recruiting migrant
workers as defined in this Act. The penalties provided in
the immediate preceding paragraph shall be imposed
upon them. (underscoring supplied)
…
Sec. 10, pars. 1 & 2.
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 any law or
contract involving Filipino workers for overseas
deployment including claims for actual, moral,
exemplary and other forms of damages.
The liability of the principal/employer and the
recruitment/placement agency for any and all claims
under this section shall be joint and several. This
provision shall be incorporated in the contract for
overseas employment and shall be a condition
precedent for its approval. The performance bond to be
by law, shall be answerable for all money claims or
damages that may be awarded to the workers. If the
recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the
case may be, shall themselves be jointly and solidarily
liable with the corporation or partnership for the
aforesaid claims and damages.
…
SEC. 11. Mandatory Periods for Resolution of Illegal
Recruitment Cases. – The preliminary investigations of
cases under this Act shall be terminated within a period
of thirty (30) calendar days from the date of their filing.
Where the preliminary investigation is conducted by a
prosecution officer and a prima facie case is established,
the corresponding information shall be filed in court
within twenty-four (24) hours from the termination of
the investigation. If the preliminary investigation is
conducted by a judge and a prima facie case is found to
exist, the corresponding information shall be filed by
the proper prosecution officer within forty-eight (48)
hours from the date of receipt of the records of the case.
The respondent averred that the aforequoted provisions
of Rep. Act No. 8042 violate Section 1, Article III of the
Constitution.5 According to the respondent, Section 6(g)
and (i) discriminated against unskilled workers and
their families and, as such, violated the equal protection
106
clause, as well as Article II, Section 126 and Article XV,
Sections 17 and 3(3) of the Constitution.8 As the law
encouraged the deployment of skilled Filipino workers,
only overseas skilled workers are granted rights. The
respondent stressed that unskilled workers also have
the right to seek employment abroad. According to the
respondent, the right of unskilled workers to due
process is violated because they are prevented from
finding employment and earning a living abroad. It
cannot be argued that skilled workers are immune from
abuses by employers, while unskilled workers are
merely prone to such abuses. It was pointed out that
both skilled and unskilled workers are subjected to
abuses by foreign employers. Furthermore, the
prohibition of the deployment of unskilled workers
abroad would only encourage fly-by-night illegal
recruiters.
According to the respondent, the grant of incentives to
service contractors and manning agencies to the
exclusion of all other licensed and authorized recruiters
is an invalid classification. Licensed and authorized
recruiters are thus deprived of their right to property
and due process and to the "equality of the person." It is
understandable for the law to prohibit illegal recruiters,
but to discriminate against licensed and registered
recruiters is unconstitutional.
The respondent, likewise, alleged that Section 6,
subsections (a) to (m) is unconstitutional because
licensed and authorized recruitment agencies are
placed on equal footing with illegal recruiters. It
contended that while the Labor Code distinguished
between recruiters who are holders of licenses and non-
holders thereof in the imposition of penalties, Rep. Act
No. 8042 does not make any distinction. The penalties
in Section 7(a) and (b) being based on an invalid
classification are, therefore, repugnant to the equal
protection clause, besides being excessive; hence, such
penalties are violative of Section 19(1), Article III of the
Constitution.9 It was also pointed out that the penalty
for officers/officials/employees of recruitment agencies
who are found guilty of economic sabotage or large-
scale illegal recruitment under Rep. Act No. 8042 is life
imprisonment. Since recruitment agencies usually
operate with a manpower of more than three persons,
such agencies are forced to shut down, lest their officers
and/or employees be charged with large scale illegal
recruitment or economic sabotage and sentenced to life
imprisonment. Thus, the penalty imposed by law, being
disproportionate to the prohibited acts, discourages the
business of licensed and registered recruitment
agencies.
The respondent also posited that Section 6(m) and
paragraphs (15) and (16), Sections 8, 9 and 10,
paragraph 2 of the law violate Section 22, Article III of
the Constitution10 prohibiting ex-post facto laws and
bills of attainder. This is because the provisions
presume that a licensed and registered recruitment
agency is guilty of illegal recruitment involving
economic sabotage, upon a finding that it committed
any of the prohibited acts under the law. Furthermore,
officials, employees and their relatives are presumed
guilty of illegal recruitment involving economic
sabotage upon such finding that they committed any of
the said prohibited acts.
The respondent further argued that the 90-day period
in Section 10, paragraph (1) within which a labor
arbiter should decide a money claim is relatively short,
and could deprive licensed and registered recruiters of
their right to due process. The period within which the
summons and the complaint would be served on foreign
employees and, thereafter, the filing of the answer to the
complaint would take more than 90 days. This would
thereby shift on local licensed and authorized recruiters
the burden of proving the defense of foreign employers.
Furthermore, the respondent asserted, Section 10,
paragraph 2 of the law, which provides for the joint and
several liability of the officers and employees, is a bill of
attainder and a violation of the right of the said
corporate officers and employees to due process.
Considering that such corporate officers and employees
act with prior approval of the board of directors of such
corporation, they should not be liable, jointly and
severally, for such corporate acts.
The respondent asserted that the following provisions
of the law are unconstitutional:
SEC. 9. Venue. – A criminal action arising from illegal
recruitment as defined herein shall be filed with the
Regional Trial Court of the province or city where the
offense was committed or where the offended party
actually resides at the time of the commission of the
offense: Provided, That the court where the criminal
action is first filed shall acquire jurisdiction to the
exclusion of other courts: Provided, however, That the
aforestated provisions shall also apply to those criminal
actions that have already been filed in court at the time
of the effectivity of this Act.
… legislature approved by the executive is presumed to be
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 any law or
contract involving Filipino workers for overseas
deployment including claims for actual, moral,
exemplary and other forms of damages.
Sec. 40.
The departments and agencies charged with carrying
out the provisions of this Act shall, within ninety (90)
days after the effectiviy of this Act, formulate the
necessary rules and regulations for its effective
implementation.
According to the respondent, the said provisions violate
Section 5(5), Article VIII of the Constitution11 because
they impair the power of the Supreme Court to
promulgate rules of procedure.
In their answer to the petition, the petitioners alleged,
inter alia, that (a) the respondent has no cause of action
for a declaratory relief; (b) the petition was premature
as the rules implementing Rep. Act No. 8042 not having
been released as yet; (c) the assailed provisions do not
violate any provisions of the Constitution; and, (d) the
law was approved by Congress in the exercise of the
police power of the State. In opposition to the
respondent’s plea for injunctive relief, the petitioners
averred that:
As earlier shown, the amended petition for declaratory
relief is devoid of merit for failure of petitioner to
demonstrate convincingly that the assailed law is
unconstitutional, apart from the defect and impropriety
of the petition. One who attacks a statute, alleging
unconstitutionality must prove its invalidity beyond
reasonable doubt (Caleon v. Agus Development
Corporation, 207 SCRA 748). All reasonable doubts
should be resolved in favor of the constitutionality of a
statute (People v. Vera, 65 Phil. 56). This presumption of
constitutionality is based on the doctrine of separation
of powers which enjoin upon each department a
becoming respect for the acts of the other departments
(Garcia vs. Executive Secretary, 204 SCRA 516 [1991]).
Necessarily, the ancillary remedy of a temporary
restraining order and/or a writ of preliminary
injunction prayed for must fall. Besides, an act of
107
within constitutional bounds (National Press Club v.
Commission on Elections, 207 SCRA 1).12
After the respective counsels of the parties were heard
on oral arguments, the trial court issued on August 21,
1995, an order granting the petitioner’s plea for a writ
of preliminary injunction upon a bond of P50,000. The
petitioner posted the requisite bond and on August 24,
1995, the trial court issued a writ of preliminary
injunction enjoining the enforcement of the following
provisions of Rep. Act No. 8042 pending the termination
of the proceedings:
… Section 2, subsections (g) and (i, 2nd par.); Section 6,
subsections (a) to (m), and pars. 15 & 16; Section 7,
subsections (a) & (b); Section 8; Section 9; Section 10;
pars. 1 & 2; Section 11; and Section 40 of Republic Act
No. 8042, otherwise known as the Migrant Workers and
Overseas Filipinos Act of 1995. …13
The petitioners filed a petition for certiorari with the
Court of Appeals assailing the order and the writ of
preliminary injunction issued by the trial court on the
following grounds:
1. Respondent ARCO-PHIL. had utterly failed to show its
clear right/s or that of its member-agencies to be
protected by the injunctive relief and/or violation of
said rights by the enforcement of the assailed sections
of R.A. 8042;
2. Respondent Judge fixed a P50,000 injunction bond
which is grossly inadequate to answer for the damage
which petitioner-officials may sustain, should
respondent ARCO-PHIL. be finally adjudged as not being
entitled thereto.14
The petitioners asserted that the respondent is not the
real party-in-interest as petitioner in the trial court. It is
inconceivable how the respondent, a non-stock and
non-profit corporation, could sustain direct injury as a
result of the enforcement of the law. They argued that if,
at all, any damage would result in the implementation of
the law, it is the licensed and registered recruitment
agencies and/or the unskilled Filipino migrant workers
discriminated against who would sustain the said injury
or damage, not the respondent. The respondent, as
petitioner in the trial court, was burdened to adduce
preponderant evidence of such irreparable injury, but
failed to do so. The petitioners further insisted that the
petition a quo was premature since the rules and
regulations implementing the law had yet to be
promulgated when such petition was filed. Finally, the
petitioners averred that the respondent failed to
establish the requisites for the issuance of a writ of
preliminary injunction against the enforcement of the
law and the rules and regulations issued implementing
the same.
On December 5, 1997, the appellate court came out with
a four-page decision dismissing the petition and
affirming the assailed order and writ of preliminary
injunction issued by the trial court. The appellate court,
likewise, denied the petitioners’ motion for
reconsideration of the said decision.
The petitioners now come to this Court in a petition for
review on certiorari on the following grounds:
1. Private respondent ARCO-PHIL. had utterly failed to
show its clear right/s or that of its member-agencies to
be protected by the injunctive relief and/or violation of
said rights by the enforcement of the assailed sections
of R.A. 8042;
2. The P50,000 injunction bond fixed by the court a quo
and sustained by the Court of Appeals is grossly
inadequate to answer for the damage which petitioners-
officials may sustain, should private respondent ARCO-
PHIL. be finally adjudged as not being entitled thereto.15
On February 16, 1998, this Court issued a temporary
restraining order enjoining the respondents from
enforcing the assailed order and writ of preliminary
injunction.
The Issues
The core issue in this case is whether or not the trial
court committed grave abuse of its discretion
amounting to excess or lack of jurisdiction in issuing the
assailed order and the writ of preliminary injunction on
a bond of onlyP50,000 and whether or not the appellate
court erred in affirming the trial court’s order and the
writ of preliminary injunction issued by it.
The petitioners contend that the respondent has
no locus standi. It is a non-stock, non-profit
organization; hence, not the real party-in-interest as
petitioner in the action. Although the respondent filed
the petition in the Regional Trial Court in behalf of
licensed and registered recruitment agencies, it failed to
adduce in evidence a certified copy of its Articles of
Incorporation and the resolutions of the said members
authorizing it to represent the said agencies in the
proceedings. Neither is the suit of the respondent a class
suit so as to vest in it a personality to assail Rep. Act No.
8042; the respondent is service-oriented while the
recruitment agencies it purports to represent are profit-
oriented. The petitioners assert that the law is
presumed constitutional and, as such, the respondent
was burdened to make a case strong enough to
overcome such presumption and establish a clear right
to injunctive relief.
The petitioners bewail the P50,000 bond fixed by the
trial court for the issuance of a writ of preliminary
injunction and affirmed by the appellate court. They
assert that the amount is grossly inadequate to answer
for any damages that the general public may suffer by
reason of the non-enforcement of the assailed
provisions of the law. The trial court committed a grave
abuse of its discretion in granting the respondent’s plea
for injunctive relief, and the appellate court erred in
affirming the order and the writ of preliminary
injunction issued by the trial court.
The respondent, for its part, asserts that it has duly
established its locus standi and its right to injunctive
relief as gleaned from its pleadings and the appendages
thereto. Under Section 5, Rule 58 of the Rules of Court, it
was incumbent on the petitioners, as respondents in the
RTC, to show cause why no injunction should issue. It
avers that the injunction bond posted by the respondent
was more than adequate to answer for any injury or
damage the petitioners may suffer, if any, by reason of
the writ of preliminary injunction issued by the RTC. In
any event, the assailed provisions of Rep. Act No. 8042
exposed its members to the immediate and irreparable
damage of being deprived of their right to a livelihood
without due process, a property right protected under
the Constitution.
The respondent contends that the commendable
purpose of the law to eradicate illegal recruiters should
not be done at the expense and to the prejudice of
licensed and authorized recruitment agencies. The writ
of preliminary injunction was necessitated by the great
number of duly licensed recruitment agencies that had
stopped or suspended their business operations for fear
that their officers and employees would be indicted and
prosecuted under the assailed oppressive penal
provisions of the law, and meted excessive penalties.
The respondent, likewise, urges that the Court should
take judicial notice that the processing of deployment
papers of overseas workers have come to a virtual
standstill at the POEA.
The Court’s Ruling
The petition is meritorious.
The Respondent Has Locus Standi
To File the Petition in the RTC in Representation of the
Eleven Licensed and Registered Recruitment Agencies
Impleaded in the Amended Petition
108
The modern view is that an association has standing to
complain of injuries to its members. This view fuses the
legal identity of an association with that of its
members.16 An association has standing to file suit for
its workers despite its lack of direct interest if its
members are affected by the action. An organization has
standing to assert the concerns of its constituents.17
In Telecommunications and Broadcast Attorneys of the
Philippines v. Commission on Elections,18 we held that
standing jus tertii would be recognized only if it can be
shown that the party suing has some substantial
relation to the third party, or that the right of the third
party would be diluted unless the party in court is
allowed to espouse the third party’s constitutional
claims.
In this case, the respondent filed the petition for
declaratory relief under Rule 64 of the Rules of Court for
and in behalf of its eleven (11) licensed and registered
recruitment agencies which are its members, and which
approved separate resolutions expressly authorizing the
respondent to file the said suit for and in their behalf.
We note that, under its Articles of Incorporation, the
respondent was organized for the purposes inter alia of
promoting and supporting the growth and development
of the manpower recruitment industry, both in the local
and international levels; providing, creating and
exploring employment opportunities for the exclusive
benefit of its general membership; enhancing and
promoting the general welfare and protection of Filipino
workers; and, to act as the representative of any
individual, company, entity or association on matters
related to the manpower recruitment industry, and to
perform other acts and activities necessary to
accomplish the purposes embodied therein. The
respondent is, thus, the appropriate party to assert the
rights of its members, because it and its members are in
every practical sense identical. The respondent asserts
that the assailed provisions violate the constitutional
rights of its members and the officers and employees
thereof. The respondent is but the medium through
which its individual members seek to make more
effective the expression of their voices and the redress
of their grievances.19
However, the respondent has no locus standi to file the
petition for and in behalf of unskilled workers. We note
that it even failed to implead any unskilled workers in
its petition. Furthermore, in failing to implead, as
parties-petitioners, the eleven licensed and registered
recruitment agencies it claimed to represent, the
respondent failed to comply with Section 2 of Rule
6320 of the Rules of Court. Nevertheless, since the eleven
licensed and registered recruitment agencies for which
the respondent filed the suit are specifically named in
the petition, the amended petition is deemed amended
to avoid multiplicity of suits.21
The Assailed Order and Writ of
Preliminary Injunction Is Mooted
By Case Law
The respondent justified its plea for injunctive relief on
the allegation in its amended petition that its members
are exposed to the immediate and irreparable danger of
being deprived of their right to a livelihood and other
constitutional rights without due process, on its claim
that a great number of duly licensed recruitment
agencies have stopped or suspended their operations
for fear that (a) their officers and employees would be
prosecuted under the unjust and unconstitutional penal
provisions of Rep. Act No. 8042 and meted equally
unjust and excessive penalties, including life
imprisonment, for illegal recruitment and large scale
illegal recruitment without regard to whether the
recruitment agencies involved are licensed and/or
authorized; and, (b) if the members of the respondent,
which are licensed and authorized, decide to continue
with their businesses, they face the stigma and the curse
of being labeled "illegal recruiters." In granting the
respondent’s plea for a writ of preliminary injunction,
the trial court held, without stating the factual and legal
basis therefor, that the enforcement of Rep. Act No.
8042, pendente lite, would cause grave and irreparable
injury to the respondent until the case is decided on its
merits.
We note, however, that since Rep. Act No. 8042 took
effect on July 15, 1995, the Court had, in a catena of
cases, applied the penal provisions in Section 6,
including paragraph (m) thereof, and the last two
paragraphs therein defining large scale illegal
recruitment committed by officers and/or employees of
recruitment agencies by themselves and in connivance
with private individuals, and imposed the penalties
provided in Section 7 thereof, including the penalty of
life imprisonment.22 The Informations therein were filed
after preliminary investigations as provided for in
Section 11 of Rep. Act No. 8042 and in venues as
provided for in Section 9 of the said act. In People v.
Chowdury,23 we held that illegal recruitment is a crime
of economic sabotage and must be enforced.
In People v. Diaz,24 we held that Rep. Act No. 8042 is but
an amendment of the Labor Code of the Philippines and
is not an ex-post facto law because it is not applied
retroactively. In JMM Promotion and Management, Inc. v.
Court of Appeals,25 the issue of the extent of the police
power of the State to regulate a business, profession or
calling vis-aà -vis the equal protection clause and the non-
impairment clause of the Constitution were raised and
we held, thus:
A profession, trade or calling is a property right within
the meaning of our constitutional guarantees. One
cannot be deprived of the right to work and the right to
make a living because these rights are property rights,
the arbitrary and unwarranted deprivation of which
normally constitutes an actionable wrong.
Nevertheless, no right is absolute, and the proper
regulation of a profession, calling, business or trade has
always been upheld as a legitimate subject of a valid
exercise of the police power by the state particularly
when their conduct affects either the execution of
legitimate governmental functions, the preservation of
the State, the public health and welfare and public
morals. According to the maxim, sic utere tuo ut alienum
non laedas, it must of course be within the legitimate
range of legislative action to define the mode and
manner in which every one may so use his own
property so as not to pose injury to himself or others.
In any case, where the liberty curtailed affects at most
the rights of property, the permissible scope of
regulatory measures is certainly much wider. To pretend
that licensing or accreditation requirements violates the
due process clause is to ignore the settled practice,
under the mantle of the police power, of regulating
entry to the practice of various trades or professions.
Professionals leaving for abroad are required to pass
rigid written and practical exams before they are
deemed fit to practice their trade. Seamen are required
to take tests determining their seamanship. Locally, the
Professional Regulation Commission has begun to
require previously licensed doctors and other
professionals to furnish documentary proof that they
had either re-trained or had undertaken continuing
education courses as a requirement for renewal of their
licenses. It is not claimed that these requirements pose
an unwarranted deprivation of a property right under
the due process clause. So long as professionals and
other workers meet reasonable regulatory standards no
such deprivation exists.
109
Finally, it is a futile gesture on the part of petitioners to
invoke the non-impairment clause of the Constitution to
support their argument that the government cannot
enact the assailed regulatory measures because they
abridge the freedom to contract. In Philippine
Association of Service Exporters, Inc. vs. Drilon, we held
that "[t]he non-impairment clause of the Constitution …
must yield to the loftier purposes targeted by the
government." Equally important, into every contract is
read provisions of existing law, and always, a
reservation of the police power for so long as the
agreement deals with a subject impressed with the
public welfare.
A last point. Petitioners suggest that the singling out of
entertainers and performing artists under the assailed
department orders constitutes class legislation which
violates the equal protection clause of the Constitution.
We do not agree.
The equal protection clause is directed principally
against undue favor and individual or class privilege. It
is not intended to prohibit legislation which is limited to
the object to which it is directed or by the territory in
which it is to operate. It does not require absolute
equality, but merely that all persons be treated alike
under like conditions both as to privileges conferred
and liabilities imposed. We have held, time and again,
that the equal protection clause of the Constitution does
not forbid classification for so long as such classification
is based on real and substantial differences having a
reasonable relation to the subject of the particular
legislation. If classification is germane to the purpose of
the law, concerns all members of the class, and applies
equally to present and future conditions, the
classification does not violate the equal protection
guarantee.26
The validity of Section 6 of R.A. No. 8042 which provides
that employees of recruitment agencies may be
criminally liable for illegal recruitment has been upheld
in People v. Chowdury:27
As stated in the first sentence of Section 6 of RA 8042,
the persons who may be held liable for illegal
recruitment are the principals, accomplices and
accessories. An employee of a company or corporation
engaged in illegal recruitment may be held liable as
principal, together with his employer, if it is shown that
he actively and consciously participated in illegal
recruitment. It has been held that the existence of the
corporate entity does not shield from prosecution the
corporate agent who knowingly and intentionally
causes the corporation to commit a crime. The
corporation obviously acts, and can act, only by and
through its human agents, and it is their conduct which
the law must deter. The employee or agent of a
corporation engaged in unlawful business naturally aids
and abets in the carrying on of such business and will be
prosecuted as principal if, with knowledge of the
business, its purpose and effect, he consciously
contributes his efforts to its conduct and promotion,
however slight his contribution may be. …28
By its rulings, the Court thereby affirmed the validity of
the assailed penal and procedural provisions of Rep. Act
No. 8042, including the imposable penalties therefor.
Until the Court, by final judgment, declares that the said
provisions are unconstitutional, the enforcement of the
said provisions cannot be enjoined.
The RTC Committed Grave Abuse of Its Discretion
Amounting to Excess or Lack of Jurisdiction in Issuing the
Assailed Order and the Writ of Preliminary Injunction
The matter of whether to issue a writ of preliminary
injunction or not is addressed to the sound discretion of
the trial court. However, if the court commits grave
abuse of its discretion in issuing the said writ
amounting to excess or lack of jurisdiction, the same
may be nullified via a writ of certiorari and prohibition.
In Social Security Commission v. Judge Bayona,29 we
ruled that a law is presumed constitutional until
otherwise declared by judicial interpretation. The
suspension of the operation of the law is a matter of
extreme delicacy because it is an interference with the
official acts not only of the duly elected representatives
of the people but also of the highest magistrate of the
land.
In Younger v. Harris, Jr.,30 the Supreme Court of the
United States emphasized, thus:
Federal injunctions against state criminal statutes,
either in their entirety or with respect to their separate
and distinct prohibitions, are not to be granted as a
matter of course, even if such statutes are
unconstitutional. No citizen or member of the
community is immune from prosecution, in good faith,
for his alleged criminal acts. The imminence of such a
prosecution even though alleged to be unauthorized
and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to
prevent irreparable injury to the plaintiff who seeks its
aid. 752 Beal v. Missouri Pacific Railroad Corp., 312 U.S.
45, 49, 61 S.Ct. 418, 420, 85 L.Ed. 577.
And similarly, in Douglas, supra, we made clear, after
reaffirming this rule, that:
"It does not appear from the record that petitioners
have been threatened with any injury other than that
incidental to every criminal proceeding brought lawfully
and in good faith …" 319 U.S., at 164, 63 S.Ct., at 881.31
The possible unconstitutionality of a statute, on its face,
does not of itself justify an injunction against good faith
attempts to enforce it, unless there is a showing of bad
faith, harassment, or any other unusual circumstance
that would call for equitable relief.32 The "on its face"
invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly
and only as a last resort," and is generally disfavored.33
To be entitled to a preliminary injunction to enjoin the
enforcement of a law assailed to be unconstitutional, the
party must establish that it will suffer irreparable harm
in the absence of injunctive relief and must demonstrate
that it is likely to succeed on the merits, or that there are
sufficiently serious questions going to the merits and
the balance of hardships tips decidedly in its favor.34 The
higher standard reflects judicial deference toward
"legislation or regulations developed through
presumptively reasoned democratic processes."
Moreover, an injunction will alter, rather than maintain,
the status quo, or will provide the movant with
substantially all the relief sought and that relief cannot
be undone even if the defendant prevails at a trial on the
merits.35 Considering that injunction is an exercise of
equitable relief and authority, in assessing whether to
issue a preliminary injunction, the courts must
sensitively assess all the equities of the situation,
including the public interest.36 In litigations between
governmental and private parties, courts go much
further both to give and withhold relief in furtherance of
public interest than they are accustomed to go when
only private interests are involved.37 Before the plaintiff
may be entitled to injunction against future
enforcement, he is burdened to show some substantial
hardship.38
The fear or chilling-effect of the assailed penal
provisions of the law on the members of the respondent
does not by itself justify prohibiting the State from
enforcing them against those whom the State believes in
good faith to be punishable under the laws:
… Just as the incidental "chilling effect" of such statutes
does not automatically render them unconstitutional, so
the chilling effect that admittedly can result from the
very existence of certain laws on the statute books does
110
not in itself justify prohibiting the State from carrying
out the important and necessary task of enforcing these
laws against socially harmful conduct that the State
believes in good faith to be punishable under its laws
and the Constitution.39
It must be borne in mind that subject to constitutional
limitations, Congress is empowered to define what acts
or omissions shall constitute a crime and to prescribe
punishments therefor.40 The power is inherent in
Congress and is part of the sovereign power of the State
to maintain peace and order. Whatever views may be
entertained regarding the severity of punishment,
whether one believes in its efficiency or its futility, these
are peculiarly questions of legislative policy.41 The
comparative gravity of crimes and whether their
consequences are more or less injurious are matters for
the State and Congress itself to
determine.42 Specification of penalties involves
questions of legislative policy.43
Due process prohibits criminal stability from shifting
the burden of proof to the accused, punishing wholly
passive conduct, defining crimes in vague or overbroad
language and failing to grant fair warning of illegal
conduct.44 Class legislation is such legislation which
denies rights to one which are accorded to others, or
inflicts upon one individual a more severe penalty than
is imposed upon another in like case offending.45 Bills of
attainder are legislative acts which inflict punishment
on individuals or members of a particular group
without a judicial trial. Essential to a bill of attainder are
a specification of certain individuals or a group of
individuals, the imposition of a punishment, penal or
otherwise, and the lack of judicial trial.46
Penalizing unlicensed and licensed recruitment
agencies and their officers and employees and their
relatives employed in government agencies charged
with the enforcement of the law for illegal recruitment
and imposing life imprisonment for those who commit
large scale illegal recruitment is not offensive to the
Constitution. The accused may be convicted of illegal
recruitment and large scale illegal recruitment only if,
after trial, the prosecution is able to prove all the
elements of the crime charged.47
The possibility that the officers and employees of the
recruitment agencies, which are members of the
respondent, and their relatives who are employed in the
government agencies charged in the enforcement of the
law, would be indicted for illegal recruitment and, if
convicted sentenced to life imprisonment for large scale
illegal recruitment, absent proof of irreparable injury, is
not sufficient on which to base the issuance of a writ of
preliminary injunction to suspend the enforcement of
the penal provisions of Rep. Act No. 8042 and avert any
indictments under the law.48The normal course of
criminal prosecutions cannot be blocked on the basis of
allegations which amount to speculations about the
future.49
There is no allegation in the amended petition or
evidence adduced by the respondent that the officers
and/or employees of its members had been threatened
with any indictments for violations of the penal
provisions of Rep. Act No. 8042. Neither is there any
allegation therein that any of its members and/or their
officers and employees committed any of the acts
enumerated in Section 6(a) to (m) of the law for which
they could be indicted. Neither did the respondent
adduce any evidence in the RTC that any or all of its
members or a great number of other duly licensed and
registered recruitment agencies had to stop their
business operations because of fear of indictments
under Sections 6 and 7 of Rep. Act No. 8042. The
respondent merely speculated and surmised that
licensed and registered recruitment agencies would
close shop and stop business operations because of the
assailed penal provisions of the law. A writ of
preliminary injunction to enjoin the enforcement of
penal laws cannot be based on such conjectures or
speculations. The Court cannot take judicial notice that
the processing of deployment papers of overseas
workers have come to a virtual standstill at the POEA
because of the assailed provisions of Rep. Act No. 8042.
The respondent must adduce evidence to prove its
allegation, and the petitioners accorded a chance to
adduce controverting evidence.
The respondent even failed to adduce any evidence to
prove irreparable injury because of the enforcement of
Section 10(1)(2) of Rep. Act No. 8042. Its fear or
apprehension that, because of time constraints, its
members would have to defend foreign employees in
cases before the Labor Arbiter is based on speculations.
Even if true, such inconvenience or difficulty is hardly
irreparable injury.
The trial court even ignored the public interest involved
in suspending the enforcement of Rep. Act No. 8042 vis-
aà -vis the eleven licensed and registered recruitment
agencies represented by the respondent. In People v.
Gamboa,50we emphasized the primary aim of Rep. Act
No. 8042:
Preliminarily, the proliferation of illegal job recruiters
and syndicates preying on innocent people anxious to
obtain employment abroad is one of the primary
considerations that led to the enactment of The Migrant
Workers and Overseas Filipinos Act of 1995. Aimed at
affording greater protection to overseas Filipino
workers, it is a significant improvement on existing laws
in the recruitment and placement of workers for
overseas employment. Otherwise known as the Magna
Carta of OFWs, it broadened the concept of illegal
recruitment under the Labor Code and provided stiffer
penalties thereto, especially those that constitute
economic sabotage, i.e., Illegal Recruitment in Large
Scale and Illegal Recruitment Committed by a Syndicate.51
By issuing the writ of preliminary injunction against the
petitioners sans any evidence, the trial court frustrated,
albeit temporarily, the prosecution of illegal recruiters
and allowed them to continue victimizing hapless and
innocent people desiring to obtain employment abroad
as overseas workers, and blocked the attainment of the
salutary policies52 embedded in Rep. Act No. 8042. It
bears stressing that overseas workers, land-based and
sea-based, had been remitting to the Philippines billions
of dollars which over the years had propped the
economy.
In issuing the writ of preliminary injunction, the trial
court considered paramount the interests of the eleven
licensed and registered recruitment agencies
represented by the respondent, and capriciously
overturned the presumption of the constitutionality of
the assailed provisions on the barefaced claim of the
respondent that the assailed provisions of Rep. Act No.
8042 are unconstitutional. The trial court committed a
grave abuse of its discretion amounting to excess or lack
of jurisdiction in issuing the assailed order and writ of
preliminary injunction. It is for this reason that the
Court issued a temporary restraining order enjoining
the enforcement of the writ of preliminary injunction
issued by the trial court.
IN LIGHT OF ALL THE FOREGOING, the petition
is GRANTED. The assailed decision of the appellate
court isREVERSED AND SET ASIDE. The Order of the
Regional Trial Court dated August 21, 1995 in Civil Case
No. Q-95-24401 and the Writ of Preliminary Injunction
issued by it in the said case on August 24, 1995
are NULLIFIED. No costs.
SO ORDERED.
ASSOCIATIONAL STANDING
111

G.R. No. 113375 May 5, 1994
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA,
CIRILO A. RIGOS, ERME CAMBA, EMILIO C.
CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO,
FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE
TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO,
RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S.
DOROMAL, SEN. FREDDIE WEBB, SEN. WIGBERTO
TAÑADA, and REP. JOKER P. ARROYO,petitioners,
vs.
TEOFISTO GUINGONA, JR., in his capacity as
Executive Secretary, Office of the President; RENATO
CORONA, in his capacity as Assistant Executive
Secretary and Chairman of the Presidential review
Committee on the Lotto, Office of the President;
PHILIPPINE CHARITY SWEEPSTAKES OFFICE; and
PHILIPPINE GAMING MANAGEMENT CORPORATION,
respondents.
Jovito R. Salonga, Fernando Santiago, Emilio C. Capulong,
Jr. and Felipe L. Gozon for petitioners.
Renato L. Cayetano and Eleazar B. Reyes for PGMC.
Gamaliel G. Bongco, Oscar Karaan and Jedideoh Sincero
for intervenors.
DAVIDE, JR., J.:
This is a special civil action for prohibition and
injunction, with a prayer for a temporary restraining
order and preliminary injunction, which seeks to
prohibit and restrain the implementation of the
"Contract of Lease" executed by the Philippine Charity
Sweepstakes Office (PCSO) and the Philippine Gaming
Management Corporation (PGMC) in connection with
the on- line lottery system, also known as "lotto."
Petitioner Kilosbayan, Incorporated (KILOSBAYAN)
avers that it is a non-stock domestic corporation
composed of civic-spirited citizens, pastors, priests,
nuns, and lay leaders who are committed to the cause of
truth, justice, and national renewal. The rest of the
petitioners, except Senators Freddie Webb and
Wigberto Tanñ ada and Representative Joker P. Arroyo,
are suing in their capacities as members of the Board of
Trustees of KILOSBAYAN and as taxpayers and
concerned citizens. Senators Webb and Tanñ ada and
Representative Arroyo are suing in their capacities as
members of Congress and as taxpayers and concerned
citizens of the Philippines.
The pleadings of the parties disclose the factual
antecedents which triggered off the filing of this
petition.
Pursuant to Section 1 of the charter of the PCSO (R.A.
No. 1169, as amended by B.P. Blg. 42) which grants it the
authority to hold and conduct "charity sweepstakes
races, lotteries and other similar activities," the PCSO
decided to establish an on- line lottery system for the
purpose of increasing its revenue base and diversifying
its sources of funds. Sometime before March 1993, after
learning that the PCSO was interested in operating an
on-line lottery system, the Berjaya Group Berhad, "a
multinational company and one of the ten largest public
companies in Malaysia," long "engaged in, among others,
successful lottery operations in Asia, running both Lotto
and Digit games, thru its subsidiary, Sports Toto
Malaysia," with its "affiliate, the International
Totalizator Systems, Inc., . . . an American public
company engaged in the international sale or provision
of computer systems, softwares, terminals, training and
other technical services to the gaming industry,"
"became interested to offer its services and resources to
PCSO." As an initial step, Berjaya Group Berhad (through
its individual nominees) organized with some Filipino
investors in March 1993 a Philippine corporation
known as the Philippine Gaming Management
Corporation (PGMC), which "was intended to be the
medium through which the technical and management
services required for the project would be offered and
delivered to PCSO." 1
Before August 1993, the PCSO formally issued a Request
for Proposal (RFP) for the Lease Contract of an on-line
lottery system for the PCSO. 2 Relevant provisions of the
RFP are the following:
1. EXECUTIVE SUMMARY
xxx xxx xxx
1.2. PCSO is seeking a suitable contractor which shall
build, at its own expense, all the facilities ('Facilities')
needed to operate and maintain a nationwide on-line
lottery system. PCSO shall lease the Facilities for a fixed
percentage ofquarterly gross receipts. All receipts from
ticket sales shall be turned over directly to PCSO. All
capital, operating expenses and expansion expenses and
risks shall be for the exclusive account of the Lessor.
xxx xxx xxx
1.4. The lease shall be for a period not exceeding fifteen
(15) years.
1.5. The Lessor is expected to submit a comprehensive
nationwide lottery development plan ("Development
Plan") which will include the game, the marketing of the
games, and the logistics to introduce the games to all the
cities and municipalities of the country within five (5)
years.
xxx xxx xxx
1.7. The Lessor shall be selected based on its technical
expertise, hardware and software capability,
maintenance support, and financial resources. The
Development Plan shall have a substantial bearing on
the choice of the Lessor. The Lessor shall be a domestic
corporation, with at least sixty percent (60%) of its
shares owned by Filipino shareholders.
xxx xxx xxx
The Office of the President, the National Disaster
Control Coordinating Council, the Philippine National
Police, and the National Bureau of Investigation shall be
authorized to use the nationwide telecommunications
system of the Facilities Free of Charge.
1.8. Upon expiration of the lease, the Facilities shall be
owned by PCSO without any additional consideration. 3
xxx xxx xxx
2.2. OBJECTIVES
The objectives of PCSO in leasing the Facilities from a
private entity are as follows:
xxx xxx xxx
2.2.2. Enable PCSO to operate a nationwide on-line
Lottery system at no expense or risk to the government.
xxx xxx xxx
2.4. DUTIES AND RESPONSIBILITIES OF THE LESSOR
xxx xxx xxx
2.4.2. THE LESSOR
The Proponent is expected to furnish and maintain the
Facilities, including the personnel needed to operate the
computers, the communications network and sales
offices under a build-lease basis. The printing of tickets
shall be undertaken under the supervision and control
of PCSO. The Facilities shall enable PCSO to computerize
the entire gaming system.
The Proponent is expected to formulate and design
consumer-oriented Master Games Plan suited to the
marketplace, especially geared to Filipino gaming habits
and preferences. In addition, the Master Games Plan is
expected to include a Product Plan for each game and
explain how each will be introduced into the market.
This will be an integral part of the Development Plan
which PCSO will require from the Proponent.
xxx xxx xxx
112
The Proponent is expected to provide upgrades to
modernize the entire gaming system over the life ofthe
lease contract.
The Proponent is expected to provide technology
transfer to PCSO technical personnel. 4
7. GENERAL GUIDELINES FOR PROPONENTS
xxx xxx xxx
Finally, the Proponent must be able to stand the acid
test of proving that it is an entity able to take on the role
of responsible maintainer of the on-line lottery system,
and able to achieve PSCO's goal of formalizing an on-line
lottery system to achieve its mandated objective. 5
xxx xxx xxx
16. DEFINITION OF TERMS
Facilities: All capital equipment, computers, terminals,
software, nationwide telecommunication network,
ticket sales offices, furnishings, and fixtures; printing
costs; cost of salaries and wages; advertising and
promotion expenses; maintenance costs; expansion and
replacement costs; security and insurance, and all other
related expenses needed to operate nationwide on-line
lottery system. 6
Considering the above citizenship requirement, the
PGMC claims that the Berjaya Group "undertook to
reduce its equity stakes in PGMC to 40%," by selling
35% out of the original 75% foreign stockholdings to
local investors.
On 15 August 1993, PGMC submitted its bid to the
PCSO. 7
The bids were evaluated by the Special Pre-Qualification
Bids and Awards Committee (SPBAC) for the on-line
lottery and its Bid Report was thereafter submitted to
the Office of the President. 8 The submission was
preceded by complaints by the Committee's
Chairperson, Dr. Mita Pardo de Tavera. 9
On 21 October 1993, the Office of the President
announced that it had given the respondent PGMC the
go-signal to operate the country's on-line lottery system
and that the corresponding implementing contract
would be submitted not later than 8 November 1993
"for final clearance and approval by the Chief
Executive." 10 This announcement was published in the
Manila Standard, Philippine Daily Inquirer, and the
Manila Times on 29 October 1993. 11
On 4 November 1993, KILOSBAYAN sent an open letter
to Presidential Fidel V. Ramos strongly opposing the
setting up to the on-line lottery system on the basis of
serious moral and ethical considerations. 12
At the meeting of the Committee on Games and
Amusements of the Senate on 12 November 1993,
KILOSBAYAN reiterated its vigorous opposition to the
on-line lottery on account of its immorality and
illegality. 13
On 19 November 1993, the media reported that despite
the opposition, "Malacanñ ang will push through with the
operation of an on-line lottery system nationwide" and
that it is actually the respondent PCSO which will
operate the lottery while the winning corporate bidders
are merely "lessors." 14
On 1 December 1993, KILOSBAYAN requested copies of
all documents pertaining to the lottery award from
Executive Secretary Teofisto Guingona, Jr. In his answer
of 17 December 1993, the Executive Secretary informed
KILOSBAYAN that the requested documents would be
duly transmitted before the end of the month. 15.
However, on that same date, an agreement denominated
as "Contract of Lease" was finally executed by
respondent PCSO and respondent PGMC. 16 The
President, per the press statement issued by the Office
of the President, approved it on 20 December 1993. 17
In view of their materiality and relevance, we quote the
following salient provisions of the Contract of Lease:
1. DEFINITIONS
The following words and terms shall have the following
respective meanings:
1.1 Rental Fee — Amount to be paid by PCSO to the
LESSOR as compensation for the fulfillment of the
obligations of the LESSOR under this Contract,
including, but not limited to the lease of the Facilities.
xxx xxx xxx
1.3 Facilities — All capital equipment, computers,
terminals, software (including source codes for the On-
Line Lottery application software for the terminals,
telecommunications and central systems), technology,
intellectual property rights, telecommunications
network, and furnishings and fixtures.
1.4 Maintenance and Other Costs — All costs and
expenses relating to printing, manpower, salaries and
wages, advertising and promotion, maintenance,
expansion and replacement, security and insurance, and
all other related expenses needed to operate an On-Line
Lottery System, which shall be for the account of the
LESSOR. All expenses relating to the setting-up,
operation and maintenance of ticket sales offices of
dealers and retailers shall be borne by PCSO's dealers
and retailers.
1.5 Development Plan — The detailed plan of all games,
the marketing thereof, number of players, value of
winnings and the logistics required to introduce the
games, including the Master Games Plan as approved by
PCSO, attached hereto as Annex "A", modified as
necessary by the provisions of this Contract.
xxx xxx xxx
1.8 Escrow Deposit — The proposal deposit in the sum
of Three Hundred Million Pesos (P300,000,000.00)
submitted by the LESSOR to PCSO pursuant to the
requirements of the Request for Proposals.
2. SUBJECT MATTER OF THE LEASE
The LESSOR shall build, furnish and maintain at its own
expense and risk the Facilities for the On-Line Lottery
System of PCSO in the Territory on an exclusive basis.
The LESSOR shall bear all Maintenance and Other Costs
as defined herein.
xxx xxx xxx
3. RENTAL FEE
For and in consideration of the performance by the
LESSOR of its obligations herein, PCSO shall pay LESSOR
a fixed Rental Fee equal to four point nine percent
(4.9%) of gross receipts from ticket sales, payable net of
taxes required by law to be withheld, on a semi-monthly
basis. Goodwill, franchise and similar fees shall belong
to PCSO.
4. LEASE PERIOD
The period of the lease shall commence ninety (90) days
from the date of effectivity of this Contract and shall run
for a period of eight (8) years thereafter, unless sooner
terminated in accordance with this Contract.
5. RIGHTS AND OBLIGATIONS OF PCSO AS OPERATOR
OF THE ON-LINE LOTTERY SYSTEM
PCSO shall be the sole and individual operator of the
On-Line Lottery System. Consequently:
5.1 PCSO shall have sole responsibility to decide
whether to implement, fully or partially, the Master
Games Plan of the LESSOR. PCSO shall have the sole
responsibility to determine the time for introducing
new games to the market. The Master Games Plan
included in Annex "A" hereof is hereby approved by
PCSO.
5.2 PCSO shall have control over revenues and receipts
of whatever nature from the On-Line Lottery System.
After paying the Rental Fee to the LESSOR, PCSO shall
have exclusive responsibility to determine the Revenue
Allocation Plan; Provided, that the same shall be
consistent with the requirement of R.A. No. 1169, as
113
amended, which fixes a prize fund of fifty five percent
(55%) on the average.
5.3 PCSO shall have exclusive control over the printing
of tickets, including but not limited to the design, text,
and contents thereof.
5.4 PCSO shall have sole responsibility over the
appointment of dealers or retailers throughout the
country. PCSO shall appoint the dealers and retailers in
a timely manner with due regard to the implementation
timetable of the On-Line Lottery System. Nothing herein
shall preclude the LESSOR from recommending dealers
or retailers for appointment by PCSO, which shall act on
said recommendation within forty-eight (48) hours.
5.5 PCSO shall designate the necessary personnel to
monitor and audit the daily performance of the On-Line
Lottery System. For this purpose, PCSO designees shall
be given, free of charge, suitable and adequate space,
furniture and fixtures, in all offices of the LESSOR,
including but not limited to its headquarters, alternate
site, regional and area offices.
5.6 PCSO shall have the responsibility to resolve, and
exclusive jurisdiction over, all matters involving the
operation of the On-Line Lottery System not otherwise
provided in this Contract.
5.7 PCSO shall promulgate procedural and coordinating
rules governing all activities relating to the On-Line
Lottery System.
5.8 PCSO will be responsible for the payment of prize
monies, commissions to agents and dealers, and taxes
and levies (if any) chargeable to the operator of the On-
Line Lottery System. The LESSOR will bear all other
Maintenance and Other Costs, except as provided in
Section 1.4.
5.9 PCSO shall assist the LESSOR in the following:
5.9.1 Work permits for the LESSOR's staff;
5.9.2 Approvals for importation of the Facilities;
5.9.3 Approvals and consents for the On-Line Lottery
System; and
5.9.4 Business and premises licenses for all offices of the
LESSOR and licenses for the telecommunications
network.
5.10 In the event that PCSO shall pre-terminate this
Contract or suspend the operation of the On-Line
Lottery System, in breach of this Contract and through
no fault of the LESSOR, PCSO shall promptly, and in any
event not later than sixty (60) days, reimburse the
LESSOR the amount of its total investment cost
associated with the On-Line Lottery System, including
but not limited to the cost of the Facilities, and further
compensate the LESSOR for loss of expected net profit
after tax, computed over the unexpired term of the
lease.
6. DUTIES AND RESPONSIBILITIES OF THE LESSOR
The LESSOR is one of not more than three (3) lessors of
similar facilities for the nationwide On-Line Lottery
System of PCSO. It is understood that the rights of the
LESSOR are primarily those of a lessor of the Facilities,
and consequently, all rights involving the business
aspects of the use of the Facilities are within the
jurisdiction of PCSO. During the term of the lease, the
LESSOR shall.
6.1 Maintain and preserve its corporate existence, rights
and privileges, and conduct its business in an orderly,
efficient, and customary manner.
6.2 Maintain insurance coverage with insurers
acceptable to PCSO on all Facilities.
6.3 Comply with all laws, statues, rules and regulations,
orders and directives, obligations and duties by which it
is legally bound.
6.4 Duly pay and discharge all taxes, assessments and
government charges now and hereafter imposed of
whatever nature that may be legally levied upon it.
6.5 Keep all the Facilities in fail safe condition and, if
necessary, upgrade, replace and improve the Facilities
from time to time as new technology develops, in order
to make the On-Line Lottery System more cost-effective
and/or competitive, and as may be required by PCSO
shall not impose such requirements unreasonably nor
arbitrarily.
6.6 Provide PCSO with management terminals which
will allow real-time monitoring of the On-Line Lottery
System.
6.7 Upon effectivity of this Contract, commence the
training of PCSO and other local personnel and the
transfer of technology and expertise, such that at the
end of the term of this Contract, PCSO will be able to
effectively take-over the Facilities and efficiently operate
the On-Line Lottery System.
6.8 Undertake a positive advertising and promotions
campaign for both institutional and product lines
without engaging in negative advertising against other
lessors.
6.9 Bear all expenses and risks relating to the Facilities
including, but not limited to, Maintenance and Other
Costs and:
xxx xxx xxx
6.10 Bear all risks if the revenues from ticket sales, on
an annualized basis, are insufficient to pay the entire
prize money.
6.11 Be, and is hereby, authorized to collect and retain
for its own account, a security deposit from dealers and
retailers, in an amount determined with the approval of
PCSO, in respect of equipment supplied by the LESSOR.
PCSO's approval shall not be unreasonably withheld.
xxx xxx xxx
6.12 Comply with procedural and coordinating rules
issued by PCSO.
7. REPRESENTATIONS AND WARRANTIES
The LESSOR represents and warrants that:
7.1 The LESSOR is corporation duly organized and
existing under the laws of the Republic of the
Philippines, at least sixty percent (60%) of the
outstanding capital stock of which is owned by Filipino
shareholders. The minimum required Filipino equity
participation shall not be impaired through voluntary or
involuntary transfer, disposition, or sale of shares of
stock by the present stockholders.
7.2 The LESSOR and its Affiliates have the full corporate
and legal power and authority to own and operate their
properties and to carry on their business in the place
where such properties are now or may be conducted. . . .
7.3 The LESSOR has or has access to all the financing
and funding requirements to promptly and effectively
carry out the terms of this Contract. . . .
7.4 The LESSOR has or has access to all the managerial
and technical expertise to promptly and effectively carry
out the terms of this Contract. . . .
xxx xxx xxx
10. TELECOMMUNICATIONS NETWORK
The LESSOR shall establish a telecommunications
network that will connect all municipalities and cities in
the Territory in accordance with, at the LESSOR's
option, either of the LESSOR's proposals (or a
combinations of both such proposals) attached hereto
as Annex "B," and under the following PCSO schedule:
xxx xxx xxx
PCSO may, at its option, require the LESSOR to establish
the telecommunications network in accordance with the
above Timetable in provinces where the LESSOR has not
yet installed terminals. Provided, that such provinces
have existing nodes. Once a municipality or city is
serviced by land lines of a licensed public telephone
company, and such lines are connected to Metro Manila,
then the obligation of the LESSOR to connect such
municipality or city through a telecommunications
114
network shall cease with respect to such municipality or
city. The voice facility will cover the four offices of the
Office of the President, National Disaster Control
Coordinating Council, Philippine National Police and the
National Bureau of Investigation, and each city and
municipality in the Territory except Metro Manila, and
those cities and municipalities which have easy
telephone access from these four offices. Voice calls
from the four offices shall be transmitted via radio or
VSAT to the remote municipalities which will be
connected to this voice facility through wired network
or by radio. The facility shall be designed to handle four
private conversations at any one time.
xxx xxx xxx
13. STOCK DISPERSAL PLAN
Within two (2) years from the effectivity of this
Contract, the LESSOR shall cause itself to be listed in the
local stock exchange and offer at least twenty five
percent (25%) of its equity to the public.
14. NON-COMPETITION
The LESSOR shall not, directly or indirectly, undertake
any activity or business in competition with or adverse
to the On-Line Lottery System of PCSO unless it obtains
the latter's prior written consent thereto.
15. HOLD HARMLESS CLAUSE
15.1 The LESSOR shall at all times protect and defend, at
its cost and expense, PCSO from and against any and all
liabilities and claims for damages and/or suits for or by
reason of any deaths of, or any injury or injuries to any
person or persons, or damages to property of any kind
whatsoever, caused by the LESSOR, its subcontractors,
its authorized agents or employees, from any cause or
causes whatsoever.
15.2 The LESSOR hereby covenants and agrees to
indemnify and hold PCSO harmless from all liabilities,
charges, expenses (including reasonable counsel fees)
and costs on account of or by reason of any such death
or deaths, injury or injuries, liabilities, claims, suits or
losses caused by the LESSOR's fault or negligence.
15.3 The LESSOR shall at all times protect and defend, at
its own cost and expense, its title to the facilities and
PCSO's interest therein from and against any and all
claims for the duration of the Contract until transfer to
PCSO of ownership of the serviceable Facilities.
16. SECURITY
16.1 To ensure faithful compliance by the LESSOR with
the terms of the Contract, the LESSOR shall secure a
Performance Bond from a reputable insurance company
or companies acceptable to PCSO.
16.2 The Performance Bond shall be in the initial
amount of Three Hundred Million Pesos
(P300,000,000.00), to its U.S. dollar equivalent, and
shall be renewed to cover the duration of the Contract.
However, the Performance Bond shall be reduced
proportionately to the percentage of unencumbered
terminals installed; Provided, that the Performance
Bond shall in no case be less than One Hundred Fifty
Million Pesos (P150,000,000.00).
16.3 The LESSOR may at its option maintain its Escrow
Deposit as the Performance Bond. . . .
17. PENALTIES
17.1 Except as may be provided in Section 17.2, should
the LESSOR fail to take remedial measures within seven
(7) days, and rectify the breach within thirty (30) days,
from written notice by PCSO of any wilfull or grossly
negligent violation of the material terms and conditions
of this Contract, all unencumbered Facilities shall
automatically become the property of PCSO without
consideration and without need for further notice or
demand by PCSO. The Performance Bond shall likewise
be forfeited in favor of PCSO.
17.2 Should the LESSOR fail to comply with the terms of
the Timetables provided in Section 9 and 10, it shall be
subject to an initial Penalty of Twenty Thousand Pesos
(P20,000.00), per city or municipality per every month
of delay; Provided, that the Penalty shall increase, every
ninety (90) days, by the amount of Twenty Thousand
Pesos (P20,000.00) per city or municipality per month,
whilst shall failure to comply persists. The penalty shall
be deducted by PCSO from the rental fee.
xxx xxx xxx
20. OWNERSHIP OF THE FACILITIES
After expiration of the term of the lease as provided in
Section 4, the Facilities directly required for the On-Line
Lottery System mentioned in Section 1.3 shall
automatically belong in full ownership to PCSO without
any further consideration other than the Rental Fees
already paid during the effectivity of the lease.
21. TERMINATION OF THE LEASE
PCSO may terminate this Contract for any breach of the
material provisions of this Contract, including the
following:
21.1 The LESSOR is insolvent or bankrupt or unable to
pay its debts, stops or suspends or threatens to stop or
suspend payment of all or a material part of its debts, or
proposes or makes a general assignment or an
arrangement or compositions with or for the benefit of
its creditors; or
21.2 An order is made or an effective resolution passed
for the winding up or dissolution of the LESSOR or
when it ceases or threatens to cease to carry on all or a
material part of its operations or business; or
21.3 Any material statement, representation or
warranty made or furnished by the LESSOR proved to
be materially false or misleading;
said termination to take effect upon receipt of written
notice of termination by the LESSOR and failure to take
remedial action within seven (7) days and cure or
remedy the same within thirty (30) days from notice.
Any suspension, cancellation or termination of this
Contract shall not relieve the LESSOR of any liability
that may have already accrued hereunder.
xxx xxx xxx
Considering the denial by the Office of the President of
its protest and the statement of Assistant Executive
Secretary Renato Corona that "only a court injunction
can stop Malacanñ ang," and the imminent
implementation of the Contract of Lease in February
1994, KILOSBAYAN, with its co-petitioners, filed on 28
January 1994 this petition.
In support of the petition, the petitioners claim that:
. . . X X THE OFFICE OF THE PRESIDENT, ACTING
THROUGH RESPONDENTS EXECUTIVE SECRETARY
AND/OR ASSISTANT EXECUTIVE SECRETARY FOR
LEGAL AFFAIRS, AND THE PCSO GRAVELY ABUSE[D]
THEIR DISCRETION AND/OR FUNCTIONS
TANTAMOUNT TO LACK OF JURISDICTION AND/OR
AUTHORITY IN RESPECTIVELY: (A) APPROVING THE
AWARD OF THE CONTRACT TO, AND (B) ENTERING
INTO THE SO-CALLED "CONTRACT OF LEASE" WITH,
RESPONDENT PGMC FOR THE INSTALLATION,
ESTABLISHMENT AND OPERATION OF THE ON-LINE
LOTTERY AND TELECOMMUNICATION SYSTEMS
REQUIRED AND/OR AUTHORIZED UNDER THE SAID
CONTRACT, CONSIDERING THAT:
a) Under Section 1 of the Charter of the PCSO, the PCSO
is prohibited from holding and conducting lotteries "in
collaboration, association or joint venture with any
person, association, company or entity";
b) Under Act No. 3846 and established jurisprudence, a
Congressional franchise is required before any person
may be allowed to establish and operate said
telecommunications system;
c) Under Section 11, Article XII of the Constitution, a
less than 60% Filipino-owned and/or controlled
corporation, like the PGMC, is disqualified from
115
operating a public service, like the said
telecommunications system; and
d) Respondent PGMC is not authorized by its charter
and under the Foreign Investment Act (R.A. No. 7042) to
install, establish and operate the on-line lotto and
telecommunications systems. 18
Petitioners submit that the PCSO cannot validly enter
into the assailed Contract of Lease with the PGMC
because it is an arrangement wherein the PCSO would
hold and conduct the on-line lottery system in
"collaboration" or "association" with the PGMC, in
violation of Section 1(B) of R.A. No. 1169, as amended
by B.P. Blg. 42, which prohibits the PCSO from holding
and conducting charity sweepstakes races, lotteries, and
other similar activities "in collaboration, association or
joint venture with any person, association, company or
entity, foreign or domestic." Even granting arguendo that
a lease of facilities is not within the contemplation of
"collaboration" or "association," an analysis, however, of
the Contract of Lease clearly shows that there is a
"collaboration, association, or joint venture between
respondents PCSO and PGMC in the holding of the On-
Line Lottery System," and that there are terms and
conditions of the Contract "showing that respondent
PGMC is the actual lotto operator and not respondent
PCSO."19
The petitioners also point out that paragraph 10 of the
Contract of Lease requires or authorizes PGMC to
establish a telecommunications network that will
connect all the municipalities and cities in the territory.
However, PGMC cannot do that because it has no
franchise from Congress to construct, install, establish,
or operate the network pursuant to Section 1 of Act No.
3846, as amended. Moreover, PGMC is a 75% foreign-
owned or controlled corporation and cannot, therefore,
be granted a franchise for that purpose because of
Section 11, Article XII of the 1987 Constitution.
Furthermore, since "the subscribed foreign capital" of
the PGMC "comes to about 75%, as shown by paragraph
EIGHT of its Articles of Incorporation," it cannot lawfully
enter into the contract in question because all forms of
gambling — and lottery is one of them — are included
in the so-called foreign investments negative list under
the Foreign Investments Act (R.A. No. 7042) where only
up to 40% foreign capital is allowed. 20
Finally, the petitioners insist that the Articles of
Incorporation of PGMC do not authorize it to establish
and operate an on-line lottery and telecommunications
systems. 21
Accordingly, the petitioners pray that we issue a
temporary restraining order and a writ of preliminary
injunction commanding the respondents or any person
acting in their places or upon their instructions to cease
and desist from implementing the challenged Contract
of Lease and, after hearing the merits of the petition,
that we render judgment declaring the Contract of Lease
void and without effect and making the injunction
permanent. 22
We required the respondents to comment on the
petition.
In its Comment filed on 1 March 1994, private
respondent PGMC asserts that "(1) [it] is merely an
independent contractor for a piece of work, (i.e., the
building and maintenance of a lottery system to be used
by PCSO in the operation of its lottery franchise); and
(2) as such independent contractor, PGMC is not a co-
operator of the lottery franchise with PCSO, nor is PCSO
sharing its franchise, 'in collaboration, association or
joint venture' with PGMC — as such statutory limitation
is viewed from the context, intent, and spirit of Republic
Act 1169, as amended by Batas Pambansa 42." It further
claims that as an independent contractor for a piece of
work, it is neither engaged in "gambling" nor in "public
service" relative to the telecommunications network,
which the petitioners even consider as an
"indispensable requirement" of an on-line lottery
system. Finally, it states that the execution and
implementation of the contract does not violate the
Constitution and the laws; that the issue on the
"morality" of the lottery franchise granted to the PCSO is
political and not judicial or legal, which should be
ventilated in another forum; and that the "petitioners
do not appear to have the legal standing or real interest
in the subject contract and in obtaining the reliefs
sought." 23
In their Comment filed by the Office of the Solicitor
General, public respondents Executive Secretary
Teofisto Guingona, Jr., Assistant Executive Secretary
Renato Corona, and the PCSO maintain that the contract
of lease in question does not violate Section 1 of R.A. No.
1169, as amended by B.P. Blg. 42, and that the
petitioner's interpretation of the phrase "in
collaboration, association or joint venture" in Section 1
is "much too narrow, strained and utterly devoid of
logic" for it "ignores the reality that PCSO, as a corporate
entity, is vested with the basic and essential prerogative
to enter into all kinds of transactions or contracts as
may be necessary for the attainment of its purposes and
objectives." What the PCSO charter "seeks to prohibit is
that arrangement akin to a "joint venture" or
partnership where there is "community of interest in
the business, sharing of profits and losses, and a mutual
right of control," a characteristic which does not obtain
in a contract of lease." With respect to the challenged
Contract of Lease, the "role of PGMC is limited to that of
a lessor of the facilities" for the on-line lottery system;
in "strict technical and legal sense," said contract "can
be categorized as a contract for a piece of work as
defined in Articles 1467, 1713 and 1644 of the Civil
Code."
They further claim that the establishment of the
telecommunications system stipulated in the Contract of
Lease does not require a congressional franchise
because PGMC will not operate a public utility;
moreover, PGMC's "establishment of a
telecommunications system is not intended to establish
a telecommunications business," and it has been held
that where the facilities are operated "not for business
purposes but for its own use," a legislative franchise is
not required before a certificate of public convenience
can be granted. 24 Even granting arguendo that PGMC is
a public utility, pursuant to Albano S.
Reyes, 25 "it can establish a telecommunications system
even without a legislative franchise because not every
public utility is required to secure a legislative franchise
before it could establish, maintain, and operate the
service"; and, in any case, "PGMC's establishment of the
telecommunications system stipulated in its contract of
lease with PCSO falls within the exceptions under
Section 1 of Act No. 3846 where a legislative franchise is
not necessary for the establishment of radio stations."
They also argue that the contract does not violate the
Foreign Investment Act of 1991; that the Articles of
Incorporation of PGMC authorize it to enter into the
Contract of Lease; and that the issues of "wisdom,
morality and propriety of acts of the executive
department are beyond the ambit of judicial review."
Finally, the public respondents allege that the
petitioners have no standing to maintain the instant
suit, citing our resolution in Valmonte vs. Philippine
Charity Sweepstakes Office. 26
Several parties filed motions to intervene as petitioners
in this case, 27 but only the motion of Senators Alberto
Romulo, Arturo Tolentino, Francisco Tatad, Gloria
Macapagal-Arroyo, Vicente Sotto III, John Osmenñ a,
Ramon Revilla, and Jose Lina28 was granted, and the
respondents were required to comment on their
116
petition in intervention, which the public respondents
and PGMC did.
In the meantime, the petitioners filed with the
Securities and Exchange Commission on 29 March 1994
a petition against PGMC for the nullification of the
latter's General Information Sheets. That case, however,
has no bearing in this petition.
On 11 April 1994, we heard the parties in oral
arguments. Thereafter, we resolved to consider the
matter submitted for resolution and pending resolution
of the major issues in this case, to issue a temporary
restraining order commanding the respondents or any
person acting in their place or upon their instructions to
cease and desist from implementing the challenged
Contract of Lease.
In the deliberation on this case on 26 April 1994, we
resolved to consider only these issues: (a) the locus
standi of the petitioners, and (b) the legality and validity
of the Contract of Lease in the light of Section 1 of R.A.
No. 1169, as amended by B.P. Blg. 42, which prohibits
the PCSO from holding and conducting lotteries "in
collaboration, association or joint venture with any
person, association, company or entity, whether
domestic or foreign." On the first issue, seven Justices
voted to sustain the locus standi of the petitioners, while
six voted not to. On the second issue, the seven Justices
were of the opinion that the Contract of Lease violates
the exception to Section 1(B) of R.A. No. 1169, as
amended by B.P. Blg. 42, and is, therefore, invalid and
contrary to law. The six Justices stated that they wished
to express no opinion thereon in view of their stand on
the first issue. The Chief Justice took no part because
one of the Directors of the PCSO is his brother-in-law.
This case was then assigned to this ponente for the
writing of the opinion of the Court.
The preliminary issue on the locus standi of the
petitioners should, indeed, be resolved in their favor. A
party's standing before this Court is a procedural
technicality which it may, in the exercise of its
discretion, set aside in view of the importance of the
issues raised. In the landmark Emergency Powers
Cases, 29 this Court brushed aside this technicality
because "the transcendental importance to the public of
these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of
procedure. (Avelino vs. Cuenco, G.R. No. L-2821)." Insofar
as taxpayers' suits are concerned, this Court had
declared that it "is not devoid of discretion as to
whether or not it should be entertained," 30 or that it
"enjoys an open discretion to entertain the same or
not." 31 In De La Llana vs. Alba, 32 this Court declared:
1. The argument as to the lack of standing of petitioners
is easily resolved. As far as Judge de la Llana is
concerned, he certainly falls within the principle set
forth in Justice Laurel's opinion in People vs. Vera [65
Phil. 56 (1937)]. Thus: "The unchallenged rule is that
the person who impugns the validity of a statute must
have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a
result of its enforcement [Ibid, 89]. The other
petitioners as members of the bar and officers of the
court cannot be considered as devoid of "any personal
and substantial interest" on the matter. There is
relevance to this excerpt from a separate opinion
in Aquino, Jr. v. Commission on Elections [L-40004,
January 31, 1975, 62 SCRA 275]: "Then there is the
attack on the standing of petitioners, as vindicating at
most what they consider a public right and not
protecting their rights as individuals. This is to conjure
the specter of the public right dogma as an inhibition to
parties intent on keeping public officials staying on the
path of constitutionalism. As was so well put by Jaffe;
"The protection of private rights is an essential
constituent of public interest and, conversely, without a
well-ordered state there could be no enforcement of
private rights. Private and public interests are, both in a
substantive and procedural sense, aspects of the totality
of the legal order." Moreover, petitioners have
convincingly shown that in their capacity as taxpayers,
their standing to sue has been amply demonstrated.
There would be a retreat from the liberal approach
followed in Pascual v. Secretary of Public Works,
foreshadowed by the very decision of People v.
Vera where the doctrine was first fully discussed, if we
act differently now. I do not think we are prepared to
take that step. Respondents, however, would hard back
to the American Supreme Court doctrine in Mellon v.
Frothingham, with their claim that what petitioners
possess "is an interest which is shared in common by
other people and is comparatively so minute and
indeterminate as to afford any basis and assurance that
the judicial process can act on it." That is to speak in the
language of a bygone era, even in the United States. For
as Chief Justice Warren clearly pointed out in the later
case of Flast v. Cohen, the barrier thus set up if not
breached has definitely been lowered.
In Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. vs. Tan, 33 reiterated in Basco vs. Philippine
Amusements and Gaming Corporation, 34 this Court
stated:
Objections to taxpayers' suits 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
Court's 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, this Court has brushed aside
technicalities of procedure and has taken cognizance of
these petitions.
and in Association of Small Landowners in the
Philippines, Inc. vs. Secretary of Agrarian Reform, 35 it
declared:
With particular regard to the requirement of proper
party as applied in the cases before us, we hold that the
same is satisfied by the petitioners and intervenors
because each of them has sustained or is in danger of
sustaining an immediate injury as a result of the acts or
measures complained of. [Ex ParteLevitt, 303 US
633]. And even if, strictly speaking, they are not covered
by the definition, it is still within the wide discretion of
the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious
constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens
and taxpayers were allowed to question the
constitutionality of several executive orders issued by
President Quirino although they were invoking only an
indirect and general interest shared in common with the
public. The Court dismissed the objective that they were
not proper parties and ruled that the transcendental
importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside,
if we must, technicalities of procedure. We have since
then applied this exception in many other cases.
(Emphasis supplied)
In Daza vs. Singson, 36 this Court once more said:
. . . For another, we have early as in the Emergency
Powers Cases that where serious constitutional
questions are involved, "the transcendental importance
to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must,
technicalities of procedure." The same policy has since
then been consistently followed by the Court, as
in Gonzales vs. Commission on Elections [21 SCRA
774] . . .
117
The Federal Supreme Court of the United States of
America has also expressed its discretionary power to
liberalize the rule on locus standi. In United States vs.
Federal Power Commission and Virginia Rea Association
vs. Federal Power Commission, 37 it held:
We hold that petitioners have standing. Differences of
view, however, preclude a single opinion of the Court as
to both petitioners. It would not further clarification of
this complicated specialty of federal jurisdiction, the
solution of whose problems is in any event more or less
determined by the specific circumstances of individual
situations, to set out the divergent grounds in support of
standing in these cases.
In line with the liberal policy of this Court on locus
standi, ordinary taxpayers, members of Congress, and
even association of planters, and non-profit civic
organizations were allowed to initiate and prosecute
actions before this Court to question the
constitutionality or validity of laws, acts, decisions,
rulings, or orders of various government agencies or
instrumentalities. Among such cases were those
assailing the constitutionality of (a) R.A. No. 3836
insofar as it allows retirement gratuity and
commutation of vacation and sick leave to Senators and
Representatives and to elective officials of both Houses
of Congress; 38 (b) Executive Order No. 284, issued by
President Corazon C. Aquino on 25 July 1987, which
allowed members of the cabinet, their undersecretaries,
and assistant secretaries to hold other government
offices or positions; 39 (c) the automatic appropriation
for debt service in the General Appropriations Act; 40 (d)
R.A. No. 7056 on the holding of desynchronized
elections; 41 (d) R.A. No. 1869 (the charter of the
Philippine Amusement and Gaming Corporation) on the
ground that it is contrary to morals, public policy, and
order; 42 and (f) R.A. No. 6975, establishing the
Philippine National
Police. 43
Other cases where we have followed a liberal policy
regarding locus standi include those attacking the
validity or legality of (a) an order allowing the
importation of rice in the light of the prohibition
imposed by R.A. No. 3452; 44 (b) P.D. Nos. 991 and 1033
insofar as they proposed amendments to the
Constitution and P.D. No. 1031 insofar as it directed the
COMELEC to supervise, control, hold, and conduct the
referendum-plebiscite on 16 October 1976; 45 (c) the
bidding for the sale of the 3,179 square meters of land
at Roppongi, Minato-ku, Tokyo, Japan; 46 (d) the
approval without hearing by the Board of Investments
of the amended application of the Bataan Petrochemical
Corporation to transfer the site of its plant from Bataan
to Batangas and the validity of such transfer and the
shift of feedstock from naphtha only to naphtha and/or
liquefied petroleum gas; 47 (e) the decisions, orders,
rulings, and resolutions of the Executive Secretary,
Secretary of Finance, Commissioner of Internal
Revenue, Commissioner of Customs, and the Fiscal
Incentives Review Board exempting the National Power
Corporation from indirect tax and duties; 48 (f) the
orders of the Energy Regulatory Board of 5 and 6
December 1990 on the ground that the hearings
conducted on the second provisional increase in oil
prices did not allow the petitioner substantial cross-
examination; 49 (g) Executive Order No. 478 which
levied a special duty of P0.95 per liter or P151.05 per
barrel of imported crude oil and P1.00 per liter of
imported oil products; 50 (h) resolutions of the
Commission on Elections concerning the
apportionment, by district, of the number of elective
members of Sanggunians; 51 and (i) memorandum
orders issued by a Mayor affecting the Chief of Police of
Pasay City. 52
In the 1975 case of Aquino vs. Commission on
Elections, 53 this Court, despite its unequivocal ruling
that the petitioners therein had no personality to file the
petition, resolved nevertheless to pass upon the issues
raised because of the far-reaching implications of the
petition. We did no less in De Guia vs.
COMELEC 54 where, although we declared that De Guia
"does not appear to have locus standi, a standing in law,
a personal or substantial interest," we brushed aside the
procedural infirmity "considering the importance of the
issue involved, concerning as it does the political
exercise of qualified voters affected by the
apportionment, and petitioner alleging abuse of
discretion and violation of the Constitution by
respondent."
We find the instant petition to be of transcendental
importance to the public. The issues it raised are of
paramount public interest and of a category even higher
than those involved in many of the aforecited cases. The
ramifications of such issues immeasurably affect the
social, economic, and moral well-being of the people
even in the remotest barangays of the country and the
counter-productive and retrogressive effects of the
envisioned on-line lottery system are as staggering as
the billions in pesos it is expected to raise. The legal
standing then of the petitioners deserves recognition
and, in the exercise of its sound discretion, this Court
hereby brushes aside the procedural barrier which the
respondents tried to take advantage of.
And now on the substantive issue.
Section 1 of R.A. No. 1169, as amending by B.P. Blg. 42,
prohibits the PCSO from holding and conducting
lotteries "in collaboration, association or joint venture
with any person, association, company or entity,
whether domestic or foreign." Section 1 provides:
Sec. 1. The Philippine Charity Sweepstakes Office. — The
Philippine Charity Sweepstakes Office, hereinafter
designated the Office, shall be the principal government
agency for raising and providing for funds for health
programs, medical assistance and services and charities
of national character, and as such shall have the general
powers conferred in section thirteen of Act Numbered
One thousand four hundred fifty-nine, as amended, and
shall have the authority:
A. To hold and conduct charity sweepstakes races,
lotteries and other similar activities, in such frequency
and manner, as shall be determined, and subject to such
rules and regulations as shall be promulgated by the
Board of Directors.
B. Subject to the approval of the Minister of Human
Settlements, to engage in health and welfare-related
investments, programs, projects and activities which
may be profit-oriented, by itself or in collaboration,
association or joint venture with any person, association,
company or entity, whether domestic or foreign, except
for the activities mentioned in the preceding
paragraph (A), for the purpose of providing for
permanent and continuing sources of funds for health
programs, including the expansion of existing ones,
medical assistance and services, and/or charitable
grants: Provided, That such investment will not compete
with the private sector in areas where investments are
adequate as may be determined by the National
Economic and Development Authority. (emphasis
supplied)
The language of the section is indisputably clear that
with respect to its franchise or privilege "to hold and
conduct charity sweepstakes races, lotteries and other
similar activities," the PCSO cannot exercise it "in
collaboration, association or joint venture" with any
other party. This is the unequivocal meaning and import
of the phrase "except for the activities mentioned in the
preceding paragraph (A)," namely, "charity sweepstakes
races, lotteries and other similar activities."
118
B.P. Blg. 42 originated from Parliamentary Bill No. 622,
which was covered by Committee Report No. 103 as
reported out by the Committee on Socio-Economic
Planning and Development of the Interim Batasang
Pambansa. The original text of paragraph B, Section 1 of
Parliamentary Bill No. 622 reads as follows:
To engage in any and all investments and related profit-
oriented projects or programs and activities by itself or
in collaboration, association or joint venture with any
person, association, company or entity, whether
domestic or foreign, for the main purpose of raising
funds for health and medical assistance and services
and charitable grants. 55
During the period of committee amendments, the
Committee on Socio-Economic Planning and
Development, through Assemblyman Ronaldo B.
Zamora, introduced an amendment by substitution to
the said paragraph B such that, as amended, it should
read as follows:
Subject to the approval of the Minister of Human
Settlements, to engage in health-oriented investments,
programs, projects and activities which may be profit-
oriented, by itself or in collaboration, association, or
joint venture with any person, association, company or
entity, whether domestic or foreign, for the purpose of
providing for permanent and continuing sources of
funds for health programs, including the expansion of
existing ones, medical assistance and services and/or
charitable grants. 56
Before the motion of Assemblyman Zamora for the
approval of the amendment could be acted upon,
Assemblyman Davide introduced an amendment to the
amendment:
MR. DAVIDE.
Mr. Speaker.
THE SPEAKER.
The gentleman from Cebu is recognized.
MR. DAVIDE.
May I introduce an amendment to the committee
amendment? The amendment would be to insert after
"foreign" in the amendment just read the following:
EXCEPT FOR THE ACTIVITY IN LETTER (A) ABOVE.
When it is joint venture or in collaboration with any
entity such collaboration or joint venture must not
include activity activity letter (a) which is the holding
and conducting of sweepstakes races, lotteries and other
similar acts.
MR. ZAMORA.
We accept the amendment, Mr. Speaker.
MR. DAVIDE.
Thank you, Mr. Speaker.
THE SPEAKER.
Is there any objection to the amendment? (Silence) The
amendment, as amended, is approved. 57
Further amendments to paragraph B were introduced
and approved. When Assemblyman Zamora read the
final text of paragraph B as further amended, the earlier
approved amendment of Assemblyman Davide became
"EXCEPT FOR THE ACTIVITIES MENTIONED IN
PARAGRAPH (A)"; and by virtue of the amendment
introduced by Assemblyman Emmanuel Pelaez, the
word PRECEDING was inserted before PARAGRAPH.
Assemblyman Pelaez introduced other amendments.
Thereafter, the new paragraph B was approved. 58
This is now paragraph B, Section 1 of R.A. No. 1169, as
amended by B.P. Blg. 42.
No interpretation of the said provision to relax or
circumvent the prohibition can be allowed since the
privilege to hold or conduct charity sweepstakes races,
lotteries, or other similar activities is a franchise
granted by the legislature to the PCSO. It is a settled rule
that "in all grants by the government to individuals or
corporations of rights, privileges and franchises, the
words are to be taken most strongly against the
grantee .... [o]ne who claims a franchise or privilege in
derogation of the common rights of the public must
prove his title thereto by a grant which is clearly and
definitely expressed, and he cannot enlarge it by
equivocal or doubtful provisions or by probable
inferences. Whatever is not unequivocally granted is
withheld. Nothing passes by mere implication." 59
In short then, by the exception explicitly made in
paragraph B, Section 1 of its charter, the PCSO cannot
share its franchise with another by way of collaboration,
association or joint venture. Neither can it assign,
transfer, or lease such franchise. It has been said that
"the rights and privileges conferred under a franchise
may, without doubt, be assigned or transferred when
the grant is to the grantee and assigns, or is authorized
by statute. On the other hand, the right of transfer or
assignment may be restricted by statute or the
constitution, or be made subject to the approval of the
grantor or a governmental agency, such as a public
utilities commission, exception that an existing right of
assignment cannot be impaired by subsequent
legislation." 60
It may also be pointed out that the franchise granted to
the PCSO to hold and conduct lotteries allows it to hold
and conduct a species of gambling. It is settled that "a
statute which authorizes the carrying on of a gambling
activity or business should be strictly construed and
every reasonable doubt so resolved as to limit the
powers and rights claimed under its authority." 61
Does the challenged Contract of Lease violate or
contravene the exception in Section 1 of R.A. No. 1169,
as amended by B.P. Blg. 42, which prohibits the PCSO
from holding and conducting lotteries "in collaboration,
association or joint venture with" another?
We agree with the petitioners that it does,
notwithstanding its denomination or designation as a
(Contract of Lease). We are neither convinced nor
moved or fazed by the insistence and forceful
arguments of the PGMC that it does not because in
reality it is only an independent contractor for a piece of
work, i.e., the building and maintenance of a lottery
system to be used by the PCSO in the operation of its
lottery franchise. Whether the contract in question is
one of lease or whether the PGMC is merely an
independent contractor should not be decided on the
basis of the title or designation of the contract but by
the intent of the parties, which may be gathered from
the provisions of the contract itself. Animus hominis est
anima scripti. The intention of the party is the soul of
the instrument. In order to give life or effect to an
instrument, it is essential to look to the intention of the
individual who executed it. 62 And, pursuant to Article
1371 of the Civil Code, "to determine the intention of
the contracting parties, their contemporaneous and
subsequent acts shall be principally considered." To put
it more bluntly, no one should be deceived by the title or
designation of a contract.
A careful analysis and evaluation of the provisions of the
contract and a consideration of the contemporaneous
acts of the PCSO and PGMC indubitably disclose that the
contract is not in reality a contract of lease under which
the PGMC is merely an independent contractor for a
piece of work, but one where the statutorily
proscribedcollaboration or association, in the least,
or joint venture, at the most, exists between the
contracting parties.Collaboration is defined as the acts
of working together in a joint
project. 63 Association means the act of a number of
persons in uniting together for some special purpose or
business. 64 Joint venture is defined as an association of
persons or companies jointly undertaking some
commercial enterprise; generally all contribute assets
and share risks. It requires a community of interest in
119
the performance of the subject matter, a right to direct
and govern the policy in connection therewith, and duty,
which may be altered by agreement to share both in
profit and
losses. 65
The contemporaneous acts of the PCSO and the PGMC
reveal that the PCSO had neither funds of its own nor
the expertise to operate and manage an on-line lottery
system, and that although it wished to have the system,
it would have it "at no expense or risks to the
government." Because of these serious constraints and
unwillingness to bear expenses and assume risks, the
PCSO was candid enough to state in its RFP that it is
seeking for "a suitable contractor which shall build, at
its own expense, all the facilities needed to operate and
maintain" the system; exclusively bear "all capital,
operating expenses and expansion expenses and risks";
and submit "a comprehensive nationwide lottery
development plan . . . which will include the game, the
marketing of the games, and the logistics to introduce
the game to all the cities and municipalities of the
country within five (5) years"; and that the operation of
the on-line lottery system should be "at no expense or
risk to the government" — meaning itself, since it is a
government-owned and controlled agency.
The facilities referred to means "all capital equipment,
computers, terminals, software, nationwide
telecommunications network, ticket sales offices,
furnishings and fixtures, printing costs, costs of salaries
and wages, advertising and promotions expenses,
maintenance costs, expansion and replacement costs,
security and insurance, and all other related expenses
needed to operate a nationwide on-line lottery system."
In short, the only contribution the PCSO would have is
its franchise or authority to operate the on-line lottery
system; with the rest, including the risks of the business,
being borne by the proponent or bidder. It could be for
this reason that it warned that "the proponent must be
able to stand to the acid test of proving that it is an
entity able to take on the role of responsible maintainer
of the on-line lottery system." The PCSO, however, makes
it clear in its RFP that the proponent can propose a
period of the contract which shall not exceed fifteen
years, during which time it is assured of a "rental" which
shall not exceed 12% of gross receipts. As admitted by
the PGMC, upon learning of the PCSO's decision, the
Berjaya Group Berhad, with its affiliates, wanted to offer
its services and resources to the PCSO. Forthwith, it
organized the PGMC as "a medium through which
the technical and management services required for the
project would be offered and delivered to PCSO." 66
Undoubtedly, then, the Berjaya Group Berhad knew all
along that in connection with an on-line lottery system,
the PCSO had nothing but its franchise, which it
solemnly guaranteed it had in the General Information
of the RFP. 67Howsoever viewed then, from the very
inception, the PCSO and the PGMC mutually understood
that any arrangement between them would necessarily
leave to the PGMC the technical, operations, and
management aspects of the on-line lottery system while
the PCSO would, primarily, provide the franchise. The
words Gaming and Management in the corporate name
of respondent Philippine Gaming Management
Corporation could not have been conceived just for
euphemistic purposes. Of course, the RFP cannot
substitute for the Contract of Lease which was
subsequently executed by the PCSO and the PGMC.
Nevertheless, the Contract of Lease incorporates their
intention and understanding.
The so-called Contract of Lease is not, therefore, what it
purports to be. Its denomination as such is a crafty
device, carefully conceived, to provide a built-in defense
in the event that the agreement is questioned as
violative of the exception in Section 1 (B) of the PCSO's
charter. The acuity or skill of its draftsmen to
accomplish that purpose easily manifests itself in the
Contract of Lease. It is outstanding for its careful and
meticulous drafting designed to give an immediate
impression that it is a contract of lease. Yet, woven
therein are provisions which negate its title and betray
the true intention of the parties to be in or to have
a joint venture for a period of eight years in the
operation and maintenance of the on-line lottery
system.
Consistent with the above observations on the RFP, the
PCSO has only its franchise to offer, while the PGMC
represents and warrants that it has access to all
managerial and technical expertise to promptly and
effectively carry out the terms of the contract. And, for a
period of eight years, the PGMC is under obligation to
keep all the Facilitiesin safe condition and if necessary,
upgrade, replace, and improve them from time to time
as new technology develops to make the on-line lottery
system more cost-effective and competitive; exclusively
bear all costs and expenses relating to the printing,
manpower, salaries and wages, advertising and
promotion, maintenance, expansion and replacement,
security and insurance, and all other related expenses
needed to operate the on-line lottery system; undertake
a positive advertising and promotions campaign for
both institutional and product lines without engaging in
negative advertising against other lessors; bear the
salaries and related costs of skilled and qualified
personnel for administrative and technical operations;
comply with procedural and coordinating rulesissued by
the PCSO; and to train PCSO and other local personnel
and to effect the transfer of technology and other
expertise, such that at the end of the term of the
contract, the PCSO will be able to effectively take over
the Facilities and efficiently operate the on-line lottery
system. The latter simply means that, indeed, the
managers, technicians or employees who shall operate
the on-line lottery system are not managers, technicians
or employees of the PCSO, but of the PGMC and that it is
only after the expiration of the contract that the PCSO
will operate the system. After eight years, the PCSO
would automatically become the owner of the Facilities
without any other further consideration.
For these reasons, too, the PGMC has the initial
prerogative to prepare the detailed plan of all games
and the marketing thereof, and determine the number
of players, value of winnings, and the logistics required
to introduce the games, including the Master Games
Plan. Of course, the PCSO has the reserved authority to
disapprove them.68 And, while the PCSO has the sole
responsibility over the appointment of dealers and
retailers throughout the country, the PGMC may,
nevertheless, recommend for appointment dealers and
retailers which shall be acted upon by the PCSO within
forty-eight hours and collect and retain, for its own
account, a security deposit from dealers and retailers in
respect of equipment supplied by it.
This joint venture is further established by the
following:
(a) Rent is defined in the lease contract as the amount to
be paid to the PGMC as compensation for the fulfillment
of its obligations under the contract, including, but not
limited to the lease of the Facilities. However, this rent is
not actually a fixed amount. Although it is stated to be
4.9% of gross receipts from ticket sales, payable net of
taxes required by law to be withheld, it may be
drastically reduced or, in extreme cases, nothing may be
due or demandable at all because the PGMC binds itself
to "bear all risks if the revenue from the ticket sales, on
an annualized basis, are insufficient to pay the entire
prize money." This risk-bearing provision is unusual in a
120
lessor-lessee relationship, but inherent in a joint
venture.
(b) In the event of pre-termination of the contract by the
PCSO, or its suspension of operation of the on-line
lottery system in breach of the contract and through no
fault of the PGMC, the PCSO binds itself "to promptly,
and in any event not later than sixty (60) days,
reimburse the Lessor the amount of its total investment
cost associated with the On-Line Lottery System,
including but not limited to the cost of the Facilities, and
further compensate the LESSOR for loss of expected net
profit after tax, computed over the unexpired term of
the lease." If the contract were indeed one of lease, the
payment of the expected profits or rentals for the
unexpired portion of the term of the contract would be
enough.
(c) The PGMC cannot "directly or indirectly undertake
any activity or business in competition with or adverse
to the On-Line Lottery System of PCSO unless it obtains
the latter's prior written consent." If the PGMC is
engaged in the business of leasing equipment and
technology for an on-line lottery system, we fail to see
any acceptable reason why it should allow a restriction
on the pursuit of such business.
(d) The PGMC shall provide the PCSO the audited
Annual Report sent to its stockholders, and within two
years from the effectivity of the contract, cause itself to
be listed in the local stock exchange and offer at least
25% of its equity to the public. If the PGMC is merely a
lessor, this imposition is unreasonable and whimsical,
and could only be tied up to the fact that the PGMC will
actually operate and manage the system; hence,
increasing public participation in the corporation would
enhance public interest.
(e) The PGMC shall put up an Escrow Deposit of
P300,000,000.00 pursuant to the requirements of the
RFP, which it may, at its option, maintain as its initial
performance bond required to ensure its faithful
compliance with the terms of the contract.
(f) The PCSO shall designate the necessary personnel to
monitor and audit the daily performance of the on-line
lottery system; and promulgate procedural and
coordinating rules governing all activities relating to the
on-line lottery system. The first further confirms that it
is the PGMC which will operate the system and the PCSO
may, for the protection of its interest, monitor and audit
the daily performance of the system. The second admits
thecoordinating and cooperative powers and functions
of the parties.
(g) The PCSO may validly terminate the contract if the
PGMC becomes insolvent or bankrupt or is unable to
pay its debts, or if it stops or suspends or threatens to
stop or suspend payment of all or a material part of its
debts.
All of the foregoing unmistakably confirm the
indispensable role of the PGMC in the pursuit,
operation, conduct, and management of the On-Line
Lottery System. They exhibit and demonstrate the
parties' indivisible community of interest in the
conception, birth and growth of the on-line lottery, and,
above all, in its profits, with each having a right in the
formulation and implementation of policies related to
the business and sharing, as well, in the losses — with
the PGMC bearing the greatest burden because of its
assumption of expenses and risks, and the PCSO the
least, because of its confessed unwillingness to bear
expenses and risks. In a manner of speaking, each is
wed to the other for better or for worse. In the final
analysis, however, in the light of the PCSO's RFP and the
above highlighted provisions, as well as the "Hold
Harmless Clause" of the Contract of Lease, it is even safe
to conclude that the actual lessor in this case is the PCSO
and the subject matter thereof is its franchise to hold
and conduct lotteries since it is, in reality, the PGMC
which operates and manages the on-line lottery system
for a period of eight years.
We thus declare that the challenged Contract of Lease
violates the exception provided for in paragraph B,
Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42,
and is, therefore, invalid for being contrary to law. This
conclusion renders unnecessary further discussion on
the other issues raised by the petitioners.
WHEREFORE, the instant petition is hereby GRANTED
and the challenged Contract of Lease executed on 17
December 1993 by respondent Philippine Charity
Sweepstakes Office (PCSO) and respondent Philippine
Gaming Management Corporation (PGMC) is hereby
DECLARED contrary to law and invalid.
The Temporary Restraining Order issued on 11 April
1994 is hereby MADE PERMANENT.
No pronouncement as to costs.
SO ORDERED.
TAXPAYERS STANDING
[G.R. No. 159139. January 13, 2004]
INFORMATION TECHNOLOGY FOUNDATION OF THE
PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL
UY, EDUARDO H. LOPEZ, AUGUSTO C. LAGMAN, REX
C. DRILON, MIGUEL HILADO, LEY SALCEDO, and
MANUEL ALCUAZ JR.,petitioners, vs. COMMISSION ON
ELECTIONS; COMELEC CHAIRMAN BENJAMIN
ABALOS SR.; COMELEC BIDDING and
AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS
and MEMBERS GIDEON DE GUZMAN, JOSE F.
BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME
SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.; and
MEGA PACIFIC CONSORTIUM, respondents.
DECISION
PANGANIBAN, J.:
There is grave abuse of discretion (1) when an act is
done contrary to the Constitution, the law or
jurisprudence;[1] or (2) when it is executed whimsically,
capriciously or arbitrarily out of malice, ill will or
personal bias.[2] In the present case, the Commission on
Elections approved the assailed Resolution and awarded
the subject Contract not only in clear violation of law
and jurisprudence, but also in reckless disregard of its
own bidding rules and procedure. For the automation of
the counting and canvassing of the ballots in the 2004
elections, Comelec awarded the Contract to Mega Pacific
Consortium an entity that had not participated in the
bidding. Despite this grant, the poll body signed the
actual automation Contract with Mega Pacific
eSolutions, Inc., a company that joined the bidding but
had not met the eligibility requirements.
Comelec awarded this billion-peso undertaking with
inexplicable haste, without adequately checking and
observing mandatory financial, technical and legal
requirements. It also accepted the proferred computer
hardware and software even if, at the time of the award,
they had undeniably failed to pass eight critical
requirements designed to safeguard the integrity of
elections, especially the following three items:
They failed to achieve the accuracy rating criteria
of 99.9995 percent set-up by the Comelec itself
They were not able to detect previously
downloaded results at various canvassing or
consolidation levels and to prevent these from being
inputted again
They were unable to print the statutorily required
audit trails of the count/canvass at different levels
without any loss of data
Because of the foregoing violations of law and the
glaring grave abuse of discretion committed by Comelec,
the Court has no choice but to exercise its solemn
constitutional duty[3] to void the assailed Resolution and
the subject Contract. The illegal, imprudent and hasty
121
actions of the Commission have not only desecrated
legal and jurisprudential norms, but have also cast
serious doubts upon the poll bodys ability and capacity
to conduct automated elections. Truly, the pith and soul
of democracy -- credible, orderly, and peaceful elections
-- has been put in jeopardy by the illegal and gravely
abusive acts of Comelec.
The Case
Before us is a Petition[4] under Rule 65 of the Rules of
Court, seeking (1) to declare null and void Resolution
No. 6074 of the Commission on Elections (Comelec),
which awarded Phase II of the Modernization Project of
the Commission to Mega Pacific Consortium (MPC); (2)
to enjoin the implementation of any further contract
that may have been entered into by Comelec either with
Mega Pacific Consortium and/or Mega Pacific
eSolutions, Inc. (MPEI); and (3) to compel Comelec to
conduct a re-bidding of the project.
The Facts
The following facts are not disputed. They were culled
from official documents, the parties pleadings, as well as
from admissions during the Oral Argument on October
7, 2003.
On June 7, 1995, Congress passed Republic Act 8046,
[5]
which authorized Comelec to conduct a nationwide
demonstration of a computerized election system and
allowed the poll body to pilot-test the system in the
March 1996 elections in the Autonomous Region in
Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act
8436[6] authorizing Comelec to use an automated
election system (AES) for the process of voting, counting
votes and canvassing/consolidating the results of the
national and local elections. It also mandated the poll
body to acquire automated counting machines (ACMs),
computer equipment, devices and materials; and to
adopt new electoral forms and printing materials.
Initially intending to implement the automation during
the May 11, 1998 presidential elections, Comelec -- in its
Resolution No. 2985 dated February 9, 1998[7] --
eventually decided against full national implementation
and limited the automation to the Autonomous Region
in Muslim Mindanao (ARMM). However, due to the
failure of the machines to read correctly some
automated ballots in one town, the poll body later
ordered their manual count for the entire Province of
Sulu.[8]
In the May 2001 elections, the counting and canvassing
of votes for both national and local positions were also
done manually, as no additional ACMs had been
acquired for that electoral exercise allegedly because of
time constraints.
On October 29, 2002, Comelec adopted in its Resolution
02-0170 a modernization program for the 2004
elections. It resolved to conduct biddings for the three
(3) phases of its Automated Election System; namely,
Phase I - Voter Registration and Validation System;
Phase II - Automated Counting and Canvassing System;
and Phase III - Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-
Arroyo issued Executive Order No. 172, which allocated
the sum of P2.5 billion to fund the AES for the May 10,
2004 elections. Upon the request of Comelec, she
authorized the release of an additional P500 million.
On January 28, 2003, the Commission issued an
Invitation to Apply for Eligibility and to Bid, which we
quote as follows:
INVITATION TO APPLY FOR ELIGIBILITY AND TO BID
The Commission on Elections (COMELEC), pursuant to
the mandate of Republic Act Nos. 8189 and 8436, invites
interested offerors, vendors, suppliers or lessors to
apply for eligibility and to bid for the procurement by
purchase, lease, lease with option to purchase, or
otherwise, supplies, equipment, materials and services
needed for a comprehensive Automated Election
System, consisting of three (3) phases: (a)
registration/verification of voters, (b) automated
counting and consolidation of votes, and (c) electronic
transmission of election results, with an approved
budget of TWO BILLION FIVE HUNDRED MILLION
(Php2,500,000,000) Pesos.
Only bids from the following entities shall be
entertained:
a. Duly licensed Filipino citizens/proprietorships;
b. Partnerships duly organized under the laws of the
Philippines and of which at least sixty percent (60%) of
the interest belongs to citizens of the Philippines;
c. Corporations duly organized under the laws of the
Philippines, and of which at least sixty percent (60%) of
the outstanding capital stock belongs to citizens of the
Philippines;
d. Manufacturers, suppliers and/or distributors forming
themselves into a joint venture, i.e., a group of two (2) or
more manufacturers, suppliers and/or distributors that
intend to be jointly and severally responsible or liable
for a particular contract, provided that Filipino
ownership thereof shall be at least sixty percent (60%);
and
e. Cooperatives duly registered with the Cooperatives
Development Authority.
Bid documents for the three (3) phases may be obtained
starting 10 February 2003, during office hours from the
Bids and Awards Committee (BAC) Secretariat/Office of
Commissioner Resurreccion Z. Borra, 7th Floor, Palacio
del Governador, Intramuros, Manila, upon payment at
the Cash Division, Commission on Elections, in cash or
cashiers check, payable to the Commission on Elections,
of a non-refundable amount of FIFTEEN THOUSAND
PESOS (Php15,000.00) for each phase. For this purpose,
interested offerors, vendors, suppliers or lessors have
the option to participate in any or all of the three (3)
phases of the comprehensive Automated Election
System.
A Pre-Bid Conference is scheduled on 13 February 2003,
at 9:00 a.m. at the Session Hall, Commission on
Elections, Postigo Street, Intramuros, Manila.Should
there be questions on the bid documents, bidders are
required to submit their queries in writing to the BAC
Secretariat prior to the scheduled Pre-Bid Conference.
Deadline for submission to the BAC of applications for
eligibility and bid envelopes for the supply of the
comprehensive Automated Election System shall be at
the Session Hall, Commission on Elections, Postigo
Street, Intramuros, Manila on 28 February 2003 at 9:00
a.m.
The COMELEC reserves the right to review the
qualifications of the bidders after the bidding and
before the contract is executed. Should such review
uncover any misrepresentation made in the eligibility
statements, or any changes in the situation of the bidder
to materially downgrade the substance of such
statements, the COMELEC shall disqualify the bidder
upon due notice without any obligation whatsoever for
any expenses or losses that may be incurred by it in the
preparation of its bid.[9]
On February 11, 2003, Comelec issued Resolution No.
5929 clarifying certain eligibility criteria for bidders
and the schedule of activities for the project bidding, as
follows:
1.) Open to Filipino and foreign corporation duly
registered and licensed to do business and is actually
doing business in the Philippines, subject to Sec. 43 of
RA 9184 (An Act providing In the Modernization
Standardization and Regulation of the Procurement
Activities of the Government and for other purposes
etc.)
2.) Track Record:
122
a) For counting machines should have been used in at
least one (1) political exercise with no less than Twenty
Million Voters;
b) For verification of voters the reference site of an
existing data base installation using Automated
Fingerprint Identification System (AFIS) with at least
Twenty Million.
3.) Ten percent (10%) equity requirement shall be
based on the total project cost; and
4.) Performance bond shall be twenty percent (20%) of
the bid offer.
RESOLVED moreover, that:
1) A. Due to the decision that the eligibility
requirements and the rest of the Bid documents shall be
released at the same time, and the memorandum of
Comm. Resurreccion Z. Borra dated February 7, 2003,
the documents to be released on Friday, February 14,
2003 at 2:00 oclock p.m. shall be the eligibility criteria,
Terms of Reference (TOR) and other pertinent
documents;
B. Pre-Bid conference shall be on February 18, 2003;
and
C. Deadline for the submission and receipt of the Bids
shall be on March 5, 2003.
2) The aforementioned documents will be available at
the following offices:
a) Voters Validation: Office of Comm. Javier
b) Automated Counting Machines: Office of Comm.
Borra
c) Electronic Transmission: Office of Comm.
Tancangco[10]
On February 17, 2003, the poll body released the
Request for Proposal (RFP) to procure the election
automation machines. The Bids and Awards Committee
(BAC) of Comelec convened a pre-bid conference on
February 18, 2003 and gave prospective bidders until
March 10, 2003 to submit their respective bids.
Among others, the RFP provided that bids from
manufacturers, suppliers and/or distributors forming
themselves into a joint venture may be entertained,
provided that the Philippine ownership thereof shall be
at least 60 percent. Joint venture is defined in the RFP as
a group of two or more manufacturers, suppliers and/or
distributors that intend to be jointly and severally
responsible or liable for a particular contract.[11]
Basically, the public bidding was to be conducted under
a two-envelope/two stage system. The bidders first
envelope or the Eligibility Envelope should establish the
bidders eligibility to bid and its qualifications to
perform the acts if accepted. On the other hand, the
second envelope would be the Bid Envelope itself. The
RFP outlines the bidding procedures as follows:
25. Determination of Eligibility of Prospective Bidders
25.1 The eligibility envelopes of prospective Bidders
shall be opened first to determine their eligibility. In
case any of the requirements specified in Clause 20 is
missing from the first bid envelope, the BAC shall
declare said prospective Bidder as ineligible to bid. Bid
envelopes of ineligible Bidders shall be immediately
returned unopened.
25.2 The eligibility of prospective Bidders shall be
determined using simple pass/fail criteria and shall be
determined as either eligible or ineligible. If the
prospective Bidder is rated passed for all the legal,
technical and financial requirements, he shall be
considered eligible. If the prospective Bidder is rated
failed in any of the requirements, he shall be considered
ineligible.
26. Bid Examination/Evaluation
26.1 The BAC will examine the Bids to determine
whether they are complete, whether any computational
errors have been made, whether required securities
have been furnished, whether the documents have been
properly signed, and whether the Bids are generally in
order.
26.2 The BAC shall check the submitted documents of
each Bidder against the required documents
enumerated under Clause 20, to ascertain if they are all
present in the Second bid envelope (Technical
Envelope). In case one (1) or more of the required
documents is missing, the BAC shall rate the Bid
concerned as failed and immediately return to the
Bidder its Third bid envelope (Financial Envelope)
unopened. Otherwise, the BAC shall rate the first bid
envelope as passed.
26.3 The BAC shall immediately open the Financial
Envelopes of the Bidders whose Technical Envelopes
were passed or rated on or above the passing
score. Only Bids that are determined to contain all the
bid requirements for both components shall be rated
passed and shall immediately be considered for
evaluation and comparison.
26.4 In the opening and examination of the Financial
Envelope, the BAC shall announce and tabulate the Total
Bid Price as calculated. Arithmetical errors will be
rectified on the following basis: If there is a discrepancy
between words and figures, the amount in words will
prevail. If there is a discrepancy between the unit price
and the total price that is obtained by multiplying the
unit price and the quantity, the unit price shall prevail
and the total price shall be corrected accordingly. If
there is a discrepancy between the Total Bid Price and
the sum of the total prices, the sum of the total prices
prevail and the Total Bid Price shall be corrected
accordingly.
26.5 Financial Proposals which do not clearly state the
Total Bid Price shall be rejected. Also, Total Bid Price as
calculated that exceeds the approved budget for the
contract shall also be rejected.
27. Comparison of Bids
27.1 The bid price shall be deemed to embrace all costs,
charges and fees associated with carrying out all the
elements of the proposed Contract, including but not
limited to, license fees, freight charges and taxes.
27.2 The BAC shall establish the calculated prices of all
Bids rated passed and rank the same in ascending order.
xxxxxxxxx
29. Postqualification
29.1 The BAC will determine to its satisfaction whether
the Bidder selected as having submitted the lowest
calculated bid is qualified to satisfactorily perform the
Contract.
29.2 The determination will take into account the
Bidders financial, technical and production
capabilities/resources. It will be based upon an
examination of the documentary evidence of the
Bidders qualification submitted by the Bidder as well as
such other information as the BAC deems necessary and
appropriate.
29.3 A bid determined as not substantially responsive
will be rejected by the BAC and may not subsequently
be made responsive by the Bidder by correction of the
non-conformity.
29.4 The BAC may waive any informality or non-
conformity or irregularity in a bid which does not
constitute a material deviation, provided such waiver
does not prejudice or affect the relative ranking of any
Bidder.
29.5 Should the BAC find that the Bidder complies with
the legal, financial and technical requirements, it shall
make an affirmative determination which shall be a
prerequisite for award of the Contract to the
Bidder. Otherwise, it will make a negative determination
which will result in rejection of the Bidders bid, in
which event the BAC will proceed to the next lowest
calculated bid to make a similar determination of that
Bidders capabilities to perform satisfactorily.[12]
123
Out of the 57 bidders,[13] the BAC found MPC and the
Total Information Management Corporation (TIMC)
eligible. For technical evaluation, they were referred to
the BACs Technical Working Group (TWG) and the
Department of Science and Technology (DOST).
In its Report on the Evaluation of the Technical
Proposals on Phase II, DOST said that both MPC and
TIMC had obtained a number of failed marks in the
technical evaluation. Notwithstanding these failures,
Comelec en banc, on April 15, 2003, promulgated
Resolution No. 6074 awarding the project to MPC. The
Commission publicized this Resolution and the award of
the project to MPC on May 16, 2003.
On May 29, 2003, five individuals and entities (including
the herein Petitioners Information Technology
Foundation of the Philippines,represented by its
president, Alfredo M. Torres; and Ma. Corazon Akol)
wrote a letter[14] to Comelec Chairman Benjamin Abalos
Sr. They protested the award of the Contract to
Respondent MPC due to glaring irregularities in the
manner in which the bidding process had been
conducted. Citing therein the noncompliance with
eligibility as well as technical and procedural
requirements (many of which have been discussed at
length in the Petition), they sought a re-bidding.
In a letter-reply dated June 6, 2003,[15] the Comelec
chairman -- speaking through Atty. Jaime Paz, his head
executive assistant -- rejected the protest and declared
that the award would stand up to the strictest scrutiny.
Hence, the present Petition.[16]
The Issues
In their Memorandum, petitioners raise the following
issues for our consideration:
1. The COMELEC awarded and contracted with a non-
eligible entity; x x x
2. Private respondents failed to pass the Technical Test
as required in the RFP. Notwithstanding, such failure
was ignored. In effect, the COMELEC changed the rules
after the bidding in effect changing the nature of the
contract bidded upon.
3. Petitioners have locus standi.
4. Instant Petition is not premature. Direct resort to the
Supreme Court is justified.[17]
In the main, the substantive issue is whether the
Commission on Elections, the agency vested with the
exclusive constitutional mandate to oversee elections,
gravely abused its discretion when, in the exercise of its
administrative functions, it awarded to MPC the contract
for the second phase of the comprehensive Automated
Election System.
Before discussing the validity of the award to MPC,
however, we deem it proper to first pass upon
the procedural issues: the legal standing of petitioners
and the alleged prematurity of the Petition.
This Courts Ruling
The Petition is meritorious.
First Procedural Issue:
Locus Standi of Petitioners
Respondents chorus that petitioners do not
possess locus standi, inasmuch as they are not
challenging the validity or constitutionality of RA
8436. Moreover, petitioners supposedly admitted
during the Oral Argument that no law had been violated
by the award of the Contract.Furthermore, they
allegedly have no actual and material interest in the
Contract and, hence, do not stand to be injured or
prejudiced on account of the award.
On the other hand, petitioners -- suing in their
capacities as taxpayers, registered voters and concerned
citizens -- respond that the issues central to this case
are of transcendental importance and of national
interest. Allegedly, Comelecs flawed bidding and
questionable award of the Contract to an unqualified
entity would impact directly on the success or the
failure of the electoral process. Thus, any taint on the
sanctity of the ballot as the expression of the will of the
people would inevitably affect their faith in the
democratic system of government. Petitioners further
argue that the award of any contract for automation
involves disbursement of public funds in gargantuan
amounts; therefore, public interest requires that the
laws governing the transaction must be followed strictly.
We agree with petitioners. Our nations political and
economic future virtually hangs in the balance, pending
the outcome of the 2004 elections. Hence, there can be
no serious doubt that the subject matter of this case is a
matter of public concern and imbued with public
interest;[18] in other words, it is of paramount public
interest[19] and transcendental importance.[20] This fact
alone would justify relaxing the rule on legal standing,
following the liberal policy of this Court whenever a
case involves an issue of overarching significance to our
society.[21]Petitioners legal standing should therefore be
recognized and upheld.
Moreover, this Court has held that taxpayers are allowed
to sue when there is a claim of illegal disbursement of
public funds,[22] or if public money is being deflected to
any improper purpose;[23] or when petitioners seek to
restrain respondent from wasting public funds through
the enforcement of an invalid or unconstitutional law.
[24]
In the instant case, individual petitioners, suing as
taxpayers, assert a material interest in seeing to it that
public funds are properly and lawfully used. In the
Petition, they claim that the bidding was defective, the
winning bidder not a qualified entity, and the award of
the Contract contrary to law and
regulation. Accordingly, they seek to restrain
respondents from implementing the Contract
and, necessarily, from making any unwarranted
expenditure of public funds pursuant thereto. Thus, we
hold that petitioners possesslocus standi.
Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion
of Administrative Remedies
Respondents claim that petitioners acted prematurely,
since they had not first utilized the protest mechanism
available to them under RA 9184, the Government
Procurement Reform Act, for the settlement of disputes
pertaining to procurement contracts.
Section 55 of RA 9184 states that protests against
decisions of the Bidding and Awards Committee in all
stages of procurement may be lodged with the head of
the procuring entity by filing a verified position paper
and paying a protest fee. Section 57 of the same law
mandates that in no case shall any such protest stay or
delay the bidding process, but it must first be resolved
before any award is made.
On the other hand, Section 58 provides that court action
may be resorted to only after the protests contemplated
by the statute shall have been completed. Cases filed in
violation of this process are to be dismissed for lack of
jurisdiction. Regional trial courts shall have jurisdiction
over final decisions of the head of the procuring entity,
and court actions shall be instituted pursuant to Rule 65
of the 1997 Rules of Civil Procedure.
Respondents assert that throughout the bidding
process, petitioners never questioned the BAC Report
finding MPC eligible to bid and recommending the
award of the Contract to it (MPC). According to
respondents, the Report should have been appealed to
the Comelec en banc, pursuant to the aforementioned
sections of RA 9184. In the absence of such appeal, the
determination and recommendation of the BAC had
become final.
The Court is not persuaded.
124
Respondent Comelec came out with its en banc
Resolution No. 6074 dated April 15, 2003, awarding the
project to Respondent MPC even before the BAC
managed to issue its written report and
recommendation on April 21, 2003. Thus, how could
petitioners have appealed the BACs recommendation or
report to the head of the procuring entity (the chairman
of Comelec), when the Comelec en banc had already
approved the award of the contract to MPC even before
petitioners learned of the BAC recommendation?
It is claimed[25] by Comelec that during its April 15, 2003
session, it received and approved the verbal report and
recommendation of the BAC for the award of the
Contract to MPC, and that the BAC subsequently re-
affirmed its verbal report and recommendation by
submitting it in writing on April 21, 2003. Respondents
insist that the law does not require that the BAC Report
be in writing before Comelec can act thereon; therefore,
there is allegedly nothing irregular about the Report as
well as the en banc Resolution.
However, it is obvious that petitioners could have
appealed the BACs report and recommendation to the
head of the procuring entity (the Comelec
chair) only upon their discovery thereof, which at the
very earliest would have been on April 21, 2003, when
the BAC actually put its report in writing and finally
released it. Even then, what would have been the use of
protesting/appealing the report to the Comelec chair,
when by that time the Commission en banc (including
the chairman himself) had already approved the BAC
Report and awarded the Contract to MPC?
And even assuming arguendo that petitioners had
somehow gotten wind of the verbal BAC report on April
15, 2003 (immediately after the en banc session), at that
point the Commission en banc had already given its
approval to the BAC Report along with the award to
MPC. To put it bluntly, the Comelec en banc itself made it
legally impossible for petitioners to avail themselves of
the administrative remedy that the Commission is so
impiously harping on. There is no doubt that they had
not been accorded the opportunity to avail themselves
of the process provided under Section 55 of RA 9184,
according to which a protest against a decision of the
BAC may be filed with the head of the procuring
entity. Nemo tenetur ad impossible,[26] to borrow private
respondents favorite Latin excuse.[27]
Some Observations on the
BAC Report to the Comelec
We shall return to this issue of alleged prematurity
shortly, but at this interstice, we would just want to put
forward a few observations regarding the BAC Report
and the Comelec en bancs approval thereof.
First, Comelec contends that there was nothing unusual
about the fact that the Report submitted by the BAC
came only after the former had already awarded the
Contract, because the latter had been asked to render its
report and recommendation orally during the
Commissions en banc session on April 15, 2003.
Accordingly, Comelec supposedly acted upon such oral
recommendation and approved the award to MPC on
the same day, following which the recommendation was
subsequently reduced into writing on April 21, 2003.
While not entirely outside the realm of the possible, this
interesting and unique spiel does not speak well of the
process that Comelec supposedly went through in
making a critical decision with respect to a multi-
billion-peso contract.
We can imagine that anyone else standing in the shoes
of the Honorable Commissioners would have been
extremely conscious of the overarching need for utter
transparency. They would have scrupulously avoided
the slightest hint of impropriety, preferring to maintain
an exacting regularity in the performance of their
duties, instead of trying to break a speed record in the
award of multi-billion-peso contracts. After all, between
April 15 and April 21 were a mere six (6) days. Could
Comelec not have waited out six more days for the
written report of the BAC, instead of rushing pell-mell
into the arms of MPC? Certainly, respondents never
cared to explain the nature of the Commissions dire
need to act immediately without awaiting the formal,
written BAC Report.
In short, the Court finds it difficult to reconcile the
uncommon dispatch with which Comelec acted to
approve the multi-billion-peso deal, with its claim of
having been impelled by only the purest and most noble
of motives.
At any rate, as will be discussed later on, several other
factors combine to lend negative credence to Comelecs
tale.
Second, without necessarily ascribing any premature
malice or premeditation on the part of the Comelec
officials involved, it should nevertheless be conceded
that this cart-before-the-horse maneuver (awarding of
the Contract ahead of the BACs written report) would
definitely serve as a clever and effective way of averting
and frustrating any impending protest under Section 55.
Having made the foregoing observations, we now go
back to the question of exhausting administrative
remedies. Respondents may not have realized it, but the
letter addressed to Chairman Benjamin Abalos Sr. dated
May 29, 2003[28] serves to eliminate the prematurity
issue as it was an actual written protest against the
decision of the poll body to award the Contract. The
letter was signed by/for, inter alia, two of herein
petitioners: the Information Technology Foundation of
the Philippines, represented by its president, Alfredo M.
Torres; and Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the
requirement to exhaust administrative remedies
particularly because it hews closely to the procedure
outlined in Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the
Court still holds that petitioners need not exhaust
administrative remedies in the light of Paat v. Court of
Appeals.[29] Paat enumerates the instances when the rule
on exhaustion of administrative remedies may be
disregarded, as follows:
(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction,
(4) when there is estoppel on the part of the
administrative agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary
whose acts as an alter ego of the President bears the
implied and assumed approval of the latter,
(7) when to require exhaustion of administrative
remedies would be unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land
case proceedings,
(10) when the rule does not provide a plain, speedy and
adequate remedy, and
(11) when there are circumstances indicating the
urgency of judicial intervention.[30]
The present controversy precisely falls within the
exceptions listed as Nos. 7, 10 and 11: (7) when to
require exhaustion of administrative remedies would be
unreasonable; (10) when the rule does not provide a
plain, speedy and adequate remedy, and (11) when there
are circumstances indicating the urgency of judicial
intervention. As already stated, Comelec itself made the
exhaustion of administrative remedies legally
impossible or, at the very least, unreasonable.
125
In any event, the peculiar circumstances surrounding
the unconventional rendition of the BAC Report and the
precipitate awarding of the Contract by the Comelec en
banc -- plus the fact that it was racing to have its
Contract with MPC implemented in time for the
elections in May 2004 (barely four months away) -- have
combined to bring about the urgent need for judicial
intervention, thus prompting this Court to dispense
with the procedural exhaustion of administrative
remedies in this case.
Main Substantive Issue:
Validity of the Award to MPC
We come now to the meat of the controversy. Petitioners
contend that the award is invalid, since Comelec gravely
abused its discretion when it did the following:
1. Awarded the Contract to MPC though it did not even
participate in the bidding
2. Allowed MPEI to participate in the bidding despite its
failure to meet the mandatory eligibility requirements
3. Issued its Resolution of April 15, 2003 awarding the
Contract to MPC despite the issuance by the BAC of its
Report, which formed the basis of the assailed
Resolution, only on April 21, 2003[31]
4. Awarded the Contract, notwithstanding the fact that
during the bidding process, there were violations of the
mandatory requirements of RA 8436 as well as those set
forth in Comelecs own Request for Proposal on the
automated election system
5. Refused to declare a failed bidding and to conduct a
re-bidding despite the failure of the bidders to pass the
technical tests conducted by the Department of Science
and Technology
6. Failed to follow strictly the provisions of RA 8436 in
the conduct of the bidding for the automated counting
machines
After reviewing the slew of pleadings as well as the
matters raised during the Oral Argument, the Court
deems it sufficient to focus discussion on the
following major areas of concern that impinge on the
issue of grave abuse of discretion:
A. Matters pertaining to the identity, existence and
eligibility of MPC as a bidder
B. Failure of the automated counting machines (ACMs)
to pass the DOST technical tests
C. Remedial measures and re-testings undertaken by
Comelec and DOST after the award, and their effect on
the present controversy
A.
Failure to Establish the Identity,
Existence and Eligibility of the
Alleged Consortium as a Bidder
On the question of the identity and the existence of the
real bidder, respondents insist that, contrary to
petitioners allegations, the bidder was not Mega Pacific
eSolutions, Inc. (MPEI), which was incorporated only on
February 27, 2003, or 11 days prior to the bidding
itself. Rather, the bidder was Mega Pacific Consortium
(MPC), of which MPEI was but a part. As proof thereof,
they point to the March 7, 2003 letter of intent to bid,
signed by the president of MPEI allegedly for and on
behalf of MPC. They also call attention to the official
receipt issued to MPC, acknowledging payment for the
bidding documents, as proof that it was the consortium
that participated in the bidding process.
We do not agree. The March 7, 2003 letter, signed by
only one signatory -- Willy U. Yu, President, Mega Pacific
eSolutions, Inc., (Lead Company/ Proponent) For: Mega
Pacific Consortium -- and without any further proof,
does not by itself prove the existence of the
consortium. It does not show that MPEI or its president
have been duly pre-authorized by the other members of
the putative consortium to represent them, to bid on
their collective behalf and, more important, to commit
them jointly and severally to the bid undertakings. The
letter is purely self-serving and uncorroborated.
Neither does an official receipt issued to MPC,
acknowledging payment for the bidding documents,
constitute proof that it was the purported consortium
that participated in the bidding. Such receipts are issued
by cashiers without any legally sufficient inquiry as to
the real identity or existence of the supposed payor.
To assure itself properly of the due existence (as well as
eligibility and qualification) of the putative consortium,
Comelecs BAC should have examined the bidding
documents submitted on behalf of MPC. They would
have easily discovered the following fatal flaws.
Two-Envelope,
Two-Stage System
As stated earlier in our factual presentation, the public
bidding system designed by Comelec under its RFP
(Request for Proposal for the Automation of the 2004
Election) mandated the use of a two-envelope, two-
stage system. A bidders first envelope (Eligibility
Envelope) was meant to establish its eligibility to bid
and its qualifications and capacity to perform the
contract if its bid was accepted, while the second
envelope would be the Bid Envelope itself.
The Eligibility Envelope was to contain legal
documents such as articles of incorporation, business
registrations, licenses and permits, mayors permit, VAT
certification, and so forth; technical
documents containing documentary evidence to
establish the track record of the bidder and its technical
and production capabilities to perform the contract;
and financial documents, including audited financial
statements for the last three years, to establish the
bidders financial capacity.
In the case of a consortium or joint venture desirous of
participating in the bidding, it goes without saying that
the Eligibility Envelope would necessarily have to
include a copy of the joint venture agreement, the
consortium agreement or memorandum of agreement --
or a business plan or some other instrument of similar
import -- establishing the due existence, composition
and scope of such aggrupation. Otherwise, how would
Comelec know who it was dealing with, and whether
these parties are qualified and capable of delivering the
products and services being offered for bidding?[32]
In the instant case, no such instrument was submitted
to Comelec during the bidding process. This fact can be
conclusively ascertained by scrutinizing the two-inch
thick Eligibility Requirements file submitted by Comelec
last October 9, 2003, in partial compliance with this
Courts instructions given during the Oral
Argument. This file purports to replicate the eligibility
documents originally submitted to Comelec by MPEI
allegedly on behalf of MPC, in connection with the
bidding conducted in March 2003. Included in the file
are the incorporation papers and financial statements of
the members of the supposed consortium and certain
certificates, licenses and permits issued to them.
However, there is no sign whatsoever of any joint
venture agreement, consortium agreement,
memorandum of agreement, or business plan executed
among the members of the purported consortium.
The only logical conclusion is that no such agreement
was ever submitted to the Comelec for its
consideration, as part of the bidding process.
It thus follows that, prior the award of the Contract,
there was no documentary or other basis for Comelec to
conclude that a consortium had actually been formed
amongst MPEI, SK C&C and WeSolv, along with
Election.com and ePLDT.[33] Neither was there anything
to indicate the exact relationships between and among
these firms; their diverse roles, undertakings and
prestations, if any, relative to the prosecution of the
126
project, the extent of their respective investments (if
any) in the supposed consortium or in the project; and
the precise nature and extent of their respective
liabilities with respect to the contract being offered for
bidding. And apart from the self-serving letter of March
7, 2003, there was not even any indication that MPEI
was the lead company duly authorized to act on behalf
of the others.
So, it necessarily follows that, during the bidding
process, Comelec had no basis at all for determining
that the alleged consortium really existed and was
eligible and qualified; and that the arrangements among
the members were satisfactory and sufficient to ensure
delivery on the Contract and to protect the governments
interest.
Notwithstanding such deficiencies, Comelec still
deemed the consortium eligible to participate in the
bidding, proceeded to open its Second Envelope, and
eventually awarded the bid to it, even though -- per the
Comelecs own RFP -- the BAC should have declared the
MPC ineligible to bid and returned the Second (Bid)
Envelope unopened.
Inasmuch as Comelec should not have considered MPEI
et al. as comprising a consortium or joint venture, it
should not have allowed them to avail themselves of the
provision in Section 5.4 (b) (i) of the IRR for RA 6957
(the Build-Operate-Transfer Law), as amended by RA
7718. This provision states in part that a joint
venture/consortium proponent shall be evaluated
based on the individual or collective experience of the
member-firms of the joint venture or consortium and of
the contractor(s) that it has engaged for the
project. Parenthetically, respondents have uniformly
argued that the said IRR of RA 6957, as amended, have
suppletory application to the instant case.
Hence, had the proponent MPEI been evaluated based
solely on its own experience, financial and operational
track record or lack thereof, it would surely not have
qualified and would have been immediately considered
ineligible to bid, as respondents readily admit.
At any rate, it is clear that Comelec gravely abused its
discretion in arbitrarily failing to observe its own rules,
policies and guidelines with respect to the bidding
process, thereby negating a fair, honest and competitive
bidding.
Commissioners Not
Aware of Consortium
In this regard, the Court is beguiled by the statements of
Commissioner Florentino Tuason Jr., given in open court
during the Oral Argument last October 7, 2003. The
good commissioner affirmed that he was aware, of his
own personal knowledge, that there had indeed been a
written agreement among the consortium members,
[34]
although it was an internal matter among them,
[35]
and of the fact that it would be presented by counsel
for private respondent.[36]
However, under questioning by Chief Justice Hilario G.
Davide Jr. and Justice Jose C. Vitug, Commissioner
Tuason in effect admitted that, while he was the
commissioner-in-charge of Comelecs Legal
Department, he had never seen, even up to that late date,
the agreement he spoke of.[37] Under further questioning,
he was likewise unable to provide any information
regarding the amounts invested into the project by
several members of the claimed consortium.[38] A short
while later, he admitted that the Commission had not
taken a look at the agreement (if any).[39]
He tried to justify his position by claiming that he was
not a member of the BAC. Neither was he the
commissioner-in-charge of the Phase II Modernization
project (the automated election system); but that, in any
case, the BAC and the Phase II Modernization Project
Team did look into the aspect of the composition of the
consortium.
It seems to the Court, though, that even if the BAC or the
Phase II Team had taken charge of evaluating the
eligibility, qualifications and credentials of the
consortium-bidder, still, in all probability, the former
would have referred the task to Commissioner Tuason,
head of Comelecs Legal Department. That task was the
appreciation and evaluation of the legal effects and
consequences of the terms, conditions, stipulations and
covenants contained in any joint venture agreement,
consortium agreement or a similar document --
assuming of course that any of these was available at the
time. The fact that Commissioner Tuason was barely
aware of the situation bespeaks the complete absence of
such document, or the utter failure or neglect of the
Comelec to examine it -- assuming it was available at all
-- at the time the award was made on April 15, 2003.
In any event, the Court notes for the record that
Commissioner Tuason basically contradicted his
statements in open court about there being one written
agreement among all the consortium members, when he
subsequently referred[40] to the four (4) Memoranda of
Agreement (MOAs) executed by them.[41]
At this juncture, one might ask: What, then, if there are
four MOAs instead of one or none at all? Isnt it enough
that there are these corporations coming together to
carry out the automation project? Isnt it true, as
respondent aver, that nowhere in the RFP issued by
Comelec is it required that the members of the joint
venture execute a single written agreement to prove the
existence of a joint venture. Indeed, the intention to be
jointly and severally liable may be evidenced not only by
a single joint venture agreement, but also by
supplementary documents executed by the parties
signifying such intention. What then is the big deal?
The problem is not that there are four agreements
instead of only one. The problem is that Comelec never
bothered to check. It never based its decision on
documents or other proof that would concretely
establish the existence of the claimed consortium or
joint venture or agglomeration. It relied merely on the
self-serving representation in an uncorroborated letter
signed by only one individual, claiming that his
company represented a consortium of several different
corporations. It concluded forthwith that a consortium
indeed existed, composed of such and such members,
and thereafter declared that the entity was eligible to
bid.
True, copies of financial statements and incorporation
papers of the alleged consortium members were
submitted. But these papers did not establish the
existence of a consortium, as they could have been
provided by the companies concerned for purposes
other than to prove that they were part of a consortium
or joint venture. For instance, the papers may have been
intended to show that those companies were each
qualified to be a sub-contractor (and nothing more) in a
major project. Those documents did not by themselves
support the assumption that a consortium or joint
venture existed among the companies.
In brief, despite the absence of competent proof as to the
existence and eligibility of the alleged consortium
(MPC), its capacity to deliver on the Contract, and the
members joint and several liability therefor, Comelec
nevertheless assumed that such consortium existed and
was eligible.It then went ahead and considered the bid
of MPC, to which the Contract was eventually awarded,
in gross violation of the formers own bidding rules and
procedures contained in its RFP. Therein lies Comelecs
grave abuse of discretion.
Sufficiency of the
Four Agreements
Instead of one multilateral agreement executed by, and
effective and binding on, all the five consortium
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members -- as earlier claimed by Commissioner Tuason
in open court -- it turns out that what was actually
executed were four (4) separate and distinct bilateral
Agreements.[42]Obviously, Comelec was furnished copies
of these Agreements only after the bidding process had
been terminated, as these were not included in the
Eligibility Documents. These Agreements are as follows:
A Memorandum of Agreement between MPEI and
SK C&C
A Memorandum of Agreement between MPEI and
WeSolv
A Teaming Agreement between MPEI and
Election.com Ltd.
A Teaming Agreement between MPEI and ePLDT.
In sum, each of the four different and separate bilateral
Agreements is valid and binding only between MPEI and
the other contracting party, leaving the other
consortium members total strangers thereto. Under this
setup, MPEI dealt separately with each of the members,
and the latter (WeSolv, SK C&C, Election.com, and
ePLDT) in turn had nothing to do with one another, each
dealing only with MPEI.
Respondents assert that these four Agreements were
sufficient for the purpose of enabling the corporations
to still qualify (even at that late stage) as a consortium
or joint venture, since the first two Agreements had
allegedly set forth the joint and several undertakings
among the parties, whereas the latter two clarified the
parties respective roles with regard to the Project, with
MPEI being the independent contractor and Election.com
and ePLDT the subcontractors.
Additionally, the use of the phrase particular contract in
the Comelecs Request for Proposal (RFP), in connection
with the joint and several liabilities of companies in a
joint venture, is taken by them to mean that all the
members of the joint venture need not be solidarily
liable for the entire project or joint venture, because it is
sufficient that the lead company and the member in
charge of a particular contract or aspect of the joint
venture agree to be solidarily liable.
At this point, it must be stressed most vigorously that
the submission of the four bilateral Agreements to
Comelec after the end of the bidding process did nothing
to eliminate the grave abuse of discretion it
had already committed on April 15, 2003.
Deficiencies Have
Not Been Cured
In any event, it is also claimed that the automation
Contract awarded by Comelec incorporates all
documents executed by the consortium members, even
if these documents are not referred to therein. The basis
of this assertion appears to be the passages from
Section 1.4 of the Contract, which is reproduced as
follows:
All Contract Documents shall form part of the Contract
even if they or any one of them is not referred to or
mentioned in the Contract as forming a part
thereof.Each of the Contract Documents shall be
mutually complementary and explanatory of each other
such that what is noted in one although not shown in
the other shall be considered contained in all, and what
is required by any one shall be as binding as if required
by all, unless one item is a correction of the other.
The intent of the Contract Documents is the proper,
satisfactory and timely execution and completion of the
Project, in accordance with the Contract
Documents. Consequently, all items necessary for the
proper and timely execution and completion of the
Project shall be deemed included in the Contract.
Thus, it is argued that whatever perceived deficiencies
there were in the supplementary contracts -- those
entered into by MPEI and the other members of the
consortium as regards their joint and several
undertakings -- have been cured. Better still, such
deficiencies have supposedly been prevented from
arising as a result of the above-quoted provisions, from
which it can be immediately established that each of the
members of MPC assumes the same joint and several
liability as the other members.
The foregoing argument is unpersuasive. First, the
contract being referred to, entitled The Automated
Counting and Canvassing Project Contract, is between
Comelec and MPEI, not the alleged consortium, MPC. To
repeat, it is MPEI -- not MPC -- that is a party to the
Contract.Nowhere in that Contract is there any mention
of a consortium or joint venture, of members thereof,
much less of joint and several liability.Supposedly
executed sometime in May 2003,[43] the Contract bears a
notarization date of June 30, 2003, and contains the
signature of Willy U. Yu signing as president of MPEI
(not for and on behalf of MPC), along with that of the
Comelec chair. It provides in Section 3.2 that MPEI (not
MPC) is to supply the Equipment and perform the
Services under the Contract, in accordance with the
appendices thereof; nothing whatsoever is said about
any consortium or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract
reproduced above do not have the effect of curing (much
less preventing) deficiencies in the bilateral agreements
entered into by MPEI with the other members of the
consortium, with respect to their joint and several
liabilities. The term Contract Documents, as used in the
quoted passages of Section 1.4, has a well-defined
meaning and actually refers only to the following
documents:
The Contract itself along with its appendices
The Request for Proposal (also known as Terms of
Reference) issued by the Comelec, including the Tender
Inquiries and Bid Bulletins
The Tender Proposal submitted by MPEI
In other words, the term Contract Documents cannot be
understood as referring to or including the MOAs and
the Teaming Agreements entered into by MPEI with SK
C&C, WeSolv, Election.com and ePLDT. This much is very
clear and admits of no debate. The attempt to use the
provisions of Section 1.4 to shore up the MOAs and the
Teaming Agreements is simply unwarranted.
Third and last, we fail to see how respondents can arrive
at the conclusion that, from the above-quoted
provisions, it can be immediately established that each
of the members of MPC assumes the same joint and
several liability as the other members. Earlier,
respondents claimed exactly the opposite -- that the two
MOAs (between MPEI and SK C&C, and between MPEI
and WeSolv) had set forth the joint and several
undertakings among the parties; whereas the two
Teaming Agreements clarified the parties respective
roles with regard to the Project, with MPEI being the
independent contractor and Election.com and ePLDT the
subcontractors.
Obviously, given the differences in their relationships,
their respective liabilities cannot be the same. Precisely,
the very clear terms and stipulations contained in the
MOAs and the Teaming Agreements -- entered into by
MPEI with SK C&C, WeSolv, Election.com and ePLDT --
negate the idea that these members are on a par with
one another and are, as such, assuming the same joint
and several liability.
Moreover, respondents have earlier seized upon the use
of the term particular contract in the Comelecs Request
for Proposal (RFP), in order to argue that all the
members of the joint venture did not need to be
solidarily liable for the entire project or joint venture. It
was sufficient that the lead company and the member in
charge of a particular contract or aspect of the joint
venture would agree to be solidarily liable. The glaring
lack of consistency leaves us at a loss. Are respondents
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trying to establish the same joint and solidary liability
among all the members or not?
Enforcement of
Liabilities Problematic
Next, it is also maintained that the automation Contract
between Comelec and the MPEI confirms the solidary
undertaking of the lead company and the consortium
member concerned for each particular Contract,
inasmuch as the position of MPEI and anyone else
performing the services contemplated under the
Contract is described therein as that of an independent
contractor.
The Court does not see, however, how this conclusion
was arrived at. In the first place, the contractual
provision being relied upon by respondents is Article
14, Independent Contractors, which states: Nothing
contained herein shall be construed as establishing or
creating between the COMELEC and MEGA the
relationship of employee and employer or principal and
agent, it being understood that the position of MEGA and
of anyone performing the Services contemplated under
this Contract, is that of an independent contractor.
Obviously, the intent behind the provision was simply to
avoid the creation of an employer-employee or a
principal-agent relationship and the complications that
it would produce. Hence, the Article states that the role
or position of MPEI, or anyone else performing on its
behalf, is that of an independent contractor. It is obvious
to the Court that respondents are stretching matters too
far when they claim that, because of this provision, the
Contract in effect confirms the solidary undertaking of
the lead company and the consortium member
concerned for the particular phase of the project. This
assertion is an absolute non sequitur.
Enforcement of Liabilities
Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce
the liability of the consortium members under the Civil
Code provisions onpartnership, reasoning that MPEI et
al. represented themselves as partners and members of
MPC for purposes of bidding for the Project. They are,
therefore, liable to the Comelec to the extent that the
latter relied upon such representation. Their liability as
partners is solidary with respect to everything chargeable
to the partnership under certain conditions.
The Court has two points to make with respect to this
argument. First, it must be recalled that SK C&C, WeSolv,
Election.com and ePLDTnever represented themselves
as partners and members of MPC, whether for purposes
of bidding or for something else. It was MPEI alone that
represented them to be members of a consortium it
supposedly headed. Thus, its acts may not necessarily
be held against the other members.
Second, this argument of the OSG in its
Memorandum[44] might possibly apply in the absence of
a joint venture agreement or some other writing that
discloses the relationship of the members with one
another. But precisely, this case does not deal with a
situation in which there is nothing in writing to serve as
reference, leaving Comelec to rely on mere
representations and therefore justifying a falling back
on the rules on partnership. For, again, the terms and
stipulations of the MOAs entered into by MPEI with SK
C&C and WeSolv, as well as the Teaming Agreements of
MPEI with Election.com and ePLDT (copies of which
have been furnished the Comelec) are very clear with
respect to the extent and the limitations of the firms
respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that
their liabilities, while joint and several with MPEI,
are limited only to the particular areas of work wherein
their services are engaged or their products utilized. As
for Election.com and ePLDT, their separate Teaming
Agreements specifically ascribe to them the role of
subcontractor vis--vis MPEI as contractor and, based on
the terms of their particular agreements, neither
Election.com nor ePLDT is, with MPEI, jointly and
severally liable to Comelec.[45] It follows then that in the
instant case, there is no justification for anyone, much
less Comelec, to resort to the rules on partnership and
partners liabilities.
Eligibility of a Consortium
Based on the Collective
Qualifications of Its Members
Respondents declare that, for purposes of assessing the
eligibility of the bidder, the members of MPC should be
evaluated on a collective basis. Therefore, they contend,
the failure of MPEI to submit financial statements (on
account of its recent incorporation) should not by itself
disqualify MPC, since the other members of the
consortium could meet the criteria set out in the RFP.
Thus, according to respondents, the collective nature of
the undertaking of the members of MPC, their
contribution of assets and sharing of risks, and the
community of their interest in the performance of the
Contract lead to these reasonable conclusions: (1) that
their collective qualifications should be the basis for
evaluating their eligibility; (2) that the sheer enormity
of the project renders it improbable to expect any single
entity to be able to comply with all the eligibility
requirements and undertake the project by itself; and
(3) that, as argued by the OSG, the RFP allows bids from
manufacturers, suppliers and/or distributors that have
formed themselves into a joint venture, in recognition of
the virtual impossibility of a single entitys ability to
respond to the Invitation to Bid.
Additionally, argues the Comelec, the Implementing
Rules and Regulations of RA 6957 (the Build-Operate-
Transfer Law) as amended by RA 7718 would be
applicable, as proponents of BOT projects usually form
joint ventures or consortiums. Under the IRR, a joint
venture/consortium proponent shall be evaluated
based on the individual or the collective experience of
the member-firms of the joint venture/consortium and
of the contractors the proponent has engaged for the
project.
Unfortunately, this argument seems to assume that the
collective nature of the undertaking of the members of
MPC, their contribution of assets and sharing of risks,
and the community of their interest in the performance
of the Contract entitle MPC to be treated as a joint
venture or consortium; and to be evaluated accordingly
on the basis of the members collective qualifications
when, in fact, the evidence before the Court suggest
otherwise.
This Court in Kilosbayan v. Guingona[46] defined joint
venture as an association of persons or companies
jointly undertaking some commercial enterprise;
generally, all contribute assets and share risks. It
requires a community of interest in the performance of
the subject matter, a right to direct and govern the
policy in connection therewith, and [a] duty, which may
be altered by agreement to share both in profit and
losses.
Going back to the instant case, it should be recalled that
the automation Contract with Comelec was not executed
by the consortium MPC -- or by MPEI for and on behalf
of MPC -- but by MPEI, period. The said Contract
contains no mention whatsoever of any consortium or
members thereof. This fact alone seems to contradict all
the suppositions about a joint undertaking that would
normally apply to a joint venture or consortium: that it
is a commercial enterprise involving a community of
interest, a sharing of risks, profits and losses, and so on.
Now let us consider the four bilateral Agreements,
starting with the Memorandum of Agreement between
MPEI and WeSolv Open Computing, Inc., dated March 5,
129
2003. The body of the MOA consists of just seven (7)
short paragraphs that would easily fit in one page. It
reads as follows:
1. The parties agree to cooperate in successfully
implementing the Project in the substance and form as
may be most beneficial to both parties and other
subcontractors involved in the Project.
2. Mega Pacific shall be responsible for any contract
negotiations and signing with the COMELEC and,
subject to the latters approval, agrees to give WeSolv an
opportunity to be present at meetings with the
COMELEC concerning WeSolvs portion of the Project.
3. WeSolv shall be jointly and severally liable with Mega
Pacific only for the particular products and/or services
supplied by the former for the Project.
4. Each party shall bear its own costs and expenses
relative to this agreement unless otherwise agreed upon
by the parties.
5. The parties undertake to do all acts and such other
things incidental to, necessary or desirable or the
attainment of the objectives and purposes of this
Agreement.
6. In the event that the parties fail to agree on the terms
and conditions of the supply of the products and
services including but not limited to the scope of the
products and services to be supplied and payment
terms, WeSolv shall cease to be bound by its obligations
stated in the aforementioned paragraphs.
7. Any dispute arising from this Agreement shall be
settled amicably by the parties whenever
possible. Should the parties be unable to do so, the
parties hereby agree to settle their dispute through
arbitration in accordance with the existing laws of the
Republic of the Philippines. (Underscoring supplied.)
Even shorter is the Memorandum of Agreement
between MPEI and SK C&C Co. Ltd., dated March 9,
2003, the body of which consists of only six (6)
paragraphs, which we quote:
1. All parties agree to cooperate in achieving the
Consortiums objective of successfully implementing the
Project in the substance and form as may be most
beneficial to the Consortium members and in
accordance w/ the demand of the RFP.
2. Mega Pacific shall have full powers and authority to
represent the Consortium with the Comelec, and to
enter and sign, for and in behalf of its members any and
all agreement/s which maybe required in the
implementation of the Project.
3. Each of the individual members of the Consortium
shall be jointly and severally liable with the Lead Firm
for the particular products and/or services supplied by
such individual member for the project, in accordance
with their respective undertaking or sphere of
responsibility.
4. Each party shall bear its own costs and expenses
relative to this agreement unless otherwise agreed upon
by the parties.
5. The parties undertake to do all acts and such other
things incidental to, necessary or desirable for the
attainment of the objectives and purposes of this
Agreement.
6. Any dispute arising from this Agreement shall be
settled amicably by the parties whenever
possible. Should the parties be unable to do so, the
parties hereby agree to settle their dispute through
arbitration in accordance with the existing laws of the
Republic of the Philippines. (Underscoring supplied.)
It will be noted that the two Agreements quoted above
are very similar in wording. Neither of them contains
any specifics or details as to the exact nature and scope
of the parties respective undertakings, performances
and deliverables under the Agreement with respect to
the automation project. Likewise, the two Agreements
are quite bereft of pesos-and-centavos data as to the
amount of investments each party contributes, its
respective share in the revenues and/or profit from the
Contract with Comelec, and so forth -- all of which are
normal for agreements of this nature. Yet, according to
public and private respondents, the participation of
MPEI, WeSolv and SK C&C comprises fully 90 percent of
the entire undertaking with respect to the election
automation project, which is worth about P1.3 billion.
As for Election.com and ePLDT, the separate Teaming
Agreements they entered into with MPEI for the
remaining 10 percent of the entire project undertaking
are ironically much longer and more detailed than the
MOAs discussed earlier. Although specifically ascribing
to them the role of subcontractor vis--vis MPEI as
contractor, these Agreements are, however, completely
devoid of any pricing data or payment terms. Even the
appended Schedules supposedly containing prices of
goods and services are shorn of any price data. Again, as
mentioned earlier, based on the terms of their particular
Agreements, neither Election.com nor ePLDT -- with
MPEI -- is jointly and severally liable to Comelec.
It is difficult to imagine how these bare Agreements --
especially the first two -- could be implemented in
practice; and how a dispute between the parties or a
claim by Comelec against them, for instance, could be
resolved without lengthy and debilitating
litigations. Absent any clear-cut statement as to the
exact nature and scope of the parties respective
undertakings, commitments, deliverables and
covenants, one party or another can easily dodge its
obligation and deny or contest its liability under the
Agreement; or claim that it is the other party that
should have delivered but failed to.
Likewise, in the absence of definite indicators as to the
amount of investments to be contributed by each party,
disbursements for expenses, the parties respective
shares in the profits and the like, it seems to the Court
that this situation could readily give rise to all kinds of
misunderstandings and disagreements over money
matters.
Under such a scenario, it will be extremely difficult for
Comelec to enforce the supposed joint and several
liabilities of the members of the consortium. The Court
is not even mentioning the possibility of a situation
arising from a failure of WeSolv and MPEI to agree on
the scope, the terms and the conditions for the supply of
the products and services under the Agreement. In that
situation, by virtue of paragraph 6 of its MOA, WeSolv
would perforce cease to be bound by its obligations --
including its joint and solidary liability with MPEI under
the MOA -- and could forthwith disengage from the
project. Effectively, WeSolv could at any time unilaterally
exit from its MOA with MPEI by simply failing to
agree.Where would that outcome leave MPEI and
Comelec?
To the Court, this strange and beguiling arrangement of
MPEI with the other companies does not qualify them to
be treated as a consortium or joint venture, at least of
the type that government agencies like the Comelec
should be dealing with. With more reason is it unable to
agree to the proposal to evaluate the members of MPC
on a collective basis.
In any event, the MPC members claim to be a joint
venture/consortium; and respondents have consistently
been arguing that the IRR for RA 6957, as amended,
should be applied to the instant case in order to allow a
collective evaluation of consortium
members. Surprisingly, considering these facts,
respondents have not deemed it necessary for MPC
members to comply with Section 5.4 (a) (iii) of the IRR
for RA 6957 as amended.
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According to the aforementioned provision, if the
project proponent is a joint venture or consortium, the
members or participants thereof are required to submit a
sworn statement that, if awarded the contract, they shall
bind themselves to be jointly, severally and solidarily
liable for the project proponents obligations
thereunder. This provision was supposed to mirror
Section 5 of RA 6957, as amended, which states: In all
cases, a consortium that participates in a bid must
present proof that the members of the consortium have
bound themselves jointly and severally to assume
responsibility for any project. The withdrawal of any
member of the consortium prior to the implementation of
the project could be a ground for the cancellation of the
contract.
The Court has certainly not seen any joint and several
undertaking by the MPC members that even
approximates the tenor of that which is described
above. We fail to see why respondents should invoke the
IRR if it is for their benefit, but refuse to comply with it
otherwise.
B.
DOST Technical Tests Flunked by the
Automated Counting Machines
Let us now move to the second subtopic, which deals
with the substantive issue: the ACMs failure to pass the
tests of the Department of Science and Technology
(DOST).
After respondent consortium and the other bidder, TIM,
had submitted their respective bids on March 10, 2003,
the Comelecs BAC -- through its Technical Working
Group (TWG) and the DOST -- evaluated their technical
proposals. Requirements that were highly technical in
nature and that required the use of certain equipment in
the evaluation process were referred to the DOST for
testing. The Department reported thus:
SEE TEST RESULTS MATRIX[47]
According to respondents, it was only after the TWG and
the DOST had conducted their separate tests and
submitted their respective reports that the BAC, on the
basis of these reports formulated its
comments/recommendations on the bids of the
consortium and TIM.
The BAC, in its Report dated April 21, 2003,
recommended that the Phase II project involving the
acquisition of automated counting machines be
awarded to MPEI. It said:
After incisive analysis of the technical reports of the
DOST and the Technical Working Group for Phase II
Automated Counting Machine, the BAC considers
adaptability to advances in modern technology to
ensure an effective and efficient method, as well as the
security and integrity of the system.
The results of the evaluation conducted by the TWG and
that of the DOST (14 April 2003 report), would show
the apparent advantage of Mega-Pacific over the other
competitor, TIM.
The BAC further noted that both Mega-Pacific and TIM
obtained some failed marks in the technical
evaluation. In general, the failed marks of Total
Information Management as enumerated above affect
the counting machine itself which are material in
nature, constituting non-compliance to the RFP. On the
other hand, the failed marks of Mega-Pacific are mere
formalities on certain documentary requirements which
the BAC may waive as clearly indicated in the Invitation
to Bid.
In the DOST test, TIM obtained 12 failed marks and
mostly attributed to the counting machine itself as
stated earlier. These are requirements of the RFP and
therefore the BAC cannot disregard the same.
Mega-Pacific failed in 8 items however these are mostly
on the software which can be corrected by
reprogramming the software and therefore can be
readily corrected.
The BAC verbally inquired from DOST on the status of
the retest of the counting machines of the TIM and was
informed that the report will be forthcoming after the
holy week. The BAC was informed that the retest is on a
different parameters theyre being two different
machines being tested. One purposely to test if
previously read ballots will be read again and the other
for the other features such as two sided ballots.
The said machine and the software therefore may not be
considered the same machine and program as
submitted in the Technical proposal and therefore may
be considered an enhancement of the original proposal.
Advance information relayed to the BAC as of 1:40 PM of
15 April 2003 by Executive Director Ronaldo T. Viloria
of DOST is that the result of the test in the two counting
machines of TIM contains substantial errors that may
lead to the failure of these machines based on the
specific items of the RFP that DOST has to certify.
OPENING OF FINANCIAL BIDS
The BAC on 15 April 2003, after notifying the concerned
bidders opened the financial bids in their presence and
the results were as follows:
Mega-Pacific:
Option 1 Outright purchase: Bid Price of
Php1,248,949,088.00
Option 2 Lease option:
70% Down payment of cost of hardware or
Php642,755,757.07
Remainder payable over 50 months or a total of
Php642,755,757.07
Discount rate of 15% p.a. or 1.2532% per month.
Total Number of Automated Counting Machine 1,769
ACMs (Nationwide)
TIM:
Total Bid Price Php1,297,860,560.00
Total Number of Automated Counting Machine 2,272
ACMs (Mindanao and NCR only)
Premises considered, it appears that the bid of Mega
Pacific is the lowest calculated responsive bid, and
therefore, the Bids and Awards Committee (BAC)
recommends that the Phase II project re Automated
Counting Machine be awarded to Mega Pacific
eSolutions, Inc.[48]
The BAC, however, also stated on page 4 of its
Report: Based on the 14 April 2003 report (Table 6) of
the DOST, it appears that both Mega-Pacific and TIM
(Total Information Management Corporation) failed to
meet some of the requirements. Below is a comparative
presentation of the requirements wherein Mega-Pacific
or TIM or both of them failed: x x x. What followed was a
list of key requirements, referring to technical
requirements, and an indication of which of the two
bidders had failed to meet them.
Failure to Meet the
Required Accuracy Rating
The first of the key requirements was that the counting
machines were to have an accuracy rating of at least
99.9995 percent. The BAC Report indicates that both
Mega Pacific and TIM failed to meet this standard.
The key requirement of accuracy rating happens to be
part and parcel of the Comelecs Request for Proposal
(RFP). The RFP, on page 26, even states that the ballot
counting machines and ballot counting software must
have an accuracy rating of 99.9995% (not merely
99.995%) or better as certified by a reliable independent
testing agency.
When questioned on this matter during the Oral
Argument, Commissioner Borra tried to wash his hands
by claiming that the required accuracy rating of 99.9995
percent had been set by a private sector group in
tandem with Comelec. He added that the Commission
had merely adopted the accuracy rating as part of the
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groups recommended bid requirements, which it had
not bothered to amend even after being advised by
DOST that such standard was unachievable. This excuse,
however, does not in any way lessen Comelecs
responsibility to adhere to its own published bidding
rules, as well as to see to it that the consortium indeed
meets the accuracy standard. Whichever accuracy rating
is the right standard -- whether 99.995 or 99.9995
percent -- the fact remains that the machines of the so-
called consortium failed to even reach the lesser of the
two. On this basis alone, it ought to have been
disqualified and its bid rejected outright.
At this point, the Court stresses that the essence of
public bidding is violated by the practice of requiring
very high standards or unrealistic specifications that
cannot be met -- like the 99.9995 percent accuracy
rating in this case -- only to water them down after the
bid has been award. Such scheme, which discourages
the entry of prospective bona fide bidders, is in fact a
sure indication of fraud in the bidding, designed to
eliminate fair competition. Certainly, if no bidder meets
the mandatory requirements, standards or
specifications, then no award should be made and a
failed bidding declared.
Failure of Software to Detect
Previously Downloaded Data
Furthermore, on page 6 of the BAC Report, it appears
that the consortium as well as TIM failed to meet
another key requirement -- for the counting machines
software program to be able to detect previously
downloaded precinct results and to prevent these
from being entered again into the counting
machine. This same deficiency on the part of both
bidders reappears on page 7 of the BAC Report, as a
result of the recurrence of their failure to meet the said
key requirement.
That the ability to detect previously downloaded data at
different canvassing or consolidation levels is deemed of
utmost importance can be seen from the fact that it is
repeated three times in the RFP. On page 30 thereof, we
find the requirement that the city/municipal canvassing
system software must be able to detect previously
downloaded precinct results and prevent these from
being inputted again into the system.Again, on page 32
of the RFP, we read that
the provincial/district canvassing system software must
be able to detect previously downloaded city/municipal
results and prevent these from being inputted again into
the system. And once more, on page 35 of the RFP, we
find the requirement that the national canvassing
system software must be able to detect previously
downloaded provincial/district results and prevent
these from being inputted again into the system.
Once again, though, Comelec chose to ignore this crucial
deficiency, which should have been a cause for the
gravest concern. Come May 2004, unscrupulous persons
may take advantage of and exploit such deficiency by
repeatedly downloading and feeding into the computers
results favorable to a particular candidate or
candidates. We are thus confronted with the grim
prospect of election fraud on a massive scale by
means of just a few key strokes. The marvels and
woes of the electronic age!
Inability to Print
the Audit Trail
But that grim prospect is not all. The BAC Report, on
pages 6 and 7, indicate that the ACMs of both bidders
were unable to print the audit trail without any loss
of data. In the case of MPC, the audit trail system was
not yet incorporated into its ACMs.
This particular deficiency is significant, not only to this
bidding but to the cause of free and credible
elections. The purpose of requiring audit trails is to
enable Comelec to trace and verify the identities of the
ACM operators responsible for data entry and
downloading, as well as the times when the various data
were downloaded into the canvassing system, in order
to forestall fraud and to identify the perpetrators.
Thus, the RFP on page 27 states that the ballot counting
machines and ballot counting software must print an
audit trail of all machine operations for documentation
and verification purposes. Furthermore, the audit trail
must be stored on the internal storage device and be
available on demand for future printing and
verifying. On pages 30-31, the RFP also requires that
the city/municipal canvassing system softwarebe able to
print an audit trail of the canvassing operations,
including therein such data as the date and time the
canvassing program was started, the log-in of the
authorized users (the identity of the machine
operators), the date and time the canvass data were
downloaded into the canvassing system, and so on and
so forth. On page 33 of the RFP, we find the same audit
trail requirement with respect to
the provincial/districtcanvassing system software; and
again on pages 35-36 thereof, the same audit trail
requirement with respect to the national canvassing
systemsoftware.
That this requirement for printing audit trails is not to
be lightly brushed aside by the BAC or Comelec itself as
a mere formality or technicality can be readily gleaned
from the provisions of Section 7 of RA 8436, which
authorizes the Commission to use an automated system
for elections.
The said provision which respondents have quoted
several times, provides that ACMs are to possess certain
features divided into two classes: those that the statute
itself considers mandatory and other features or
capabilities that the law deems optional. Among those
considered mandatory are provisions for audit
trails! Section 7 reads as follows: The
System shall contain the following features: (a) use of
appropriate ballots; (b) stand-alone machine which can
count votes and an automated system which can
consolidate the results immediately; (c) with provisions
for audit trails; (d) minimum human intervention; and
(e) adequate safeguard/security measures. (Italics and
emphases supplied.)
In brief, respondents cannot deny that the provision
requiring audit trails is indeed mandatory, considering
the wording of Section 7 of RA 8436. Neither can
Respondent Comelec deny that it has relied on the BAC
Report, which indicates that the machines or the
software was deficient in that respect. And yet, the
Commission simply disregarded this shortcoming and
awarded the Contract to private respondent, thereby
violating the very law it was supposed to implement.
C.
Inadequacy of Post Facto
Remedial Measures
Respondents argue that the deficiencies relating to the
detection of previously downloaded data, as well as
provisions for audit trails, are mere shortcomings or
minor deficiencies in software or programming, which
can be rectified. Perhaps Comelec simply relied upon
the BAC Report, which states on page 8 thereof
that Mega Pacific failed in 8 items[;] however these are
mostly on the software which can be corrected by re-
programming x x x and therefore can be readily
corrected.
The undersigned ponentes questions, some of which
were addressed to Commissioner Borra during the Oral
Argument, remain unanswered to this day. First of all,
who made the determination that the eight fail marks of
Mega Pacific were on account of the software -- was it
DOST or TWG? How can we be sure these failures were
not the results of machine defects? How was it
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determined that the software could actually be re-
programmed and thereby rectified? Did a qualified
technical expert read and analyze the source code[49] for
the programs and conclude that these could be saved
and remedied? (Such determination cannot be done by
any other means save by the examination and analysis
of the source code.)
Who was this qualified technical expert? When did he
carry out the study? Did he prepare a written report on
his findings? Or did the Comelec just make a wild
guess? It does not follow that all defects in software
programs can be rectified, and the programs saved. In
the information technology sector, it is common
knowledge that there are many badly written programs,
with significant programming errors written into them;
hence it does not make economic sense to try to correct
the programs; instead, programmers simply abandon
them and just start from scratch. Theres no telling if any
of these programs is unrectifiable, unless a qualified
programmer reads the source code.
And if indeed a qualified expert reviewed the source
code, did he also determine how much work would be
needed to rectify the programs?And how much time and
money would be spent for that effort? Who would carry
out the work? After the rectification process, who would
ascertain and how would it be ascertained that the
programs have indeed been properly rectified, and that
they would work properly thereafter?And of course, the
most important question to ask: could the rectification
be done in time for the elections in 2004?
Clearly, none of the respondents bothered to think the
matter through. Comelec simply took the word of the
BAC as gospel truth, without even bothering to inquire
from DOST whether it was true that the deficiencies
noted could possibly be remedied by re-programming
the software.Apparently, Comelec did not care about the
software, but focused only on purchasing the machines.
What really adds to the Courts dismay is the admission
made by Commissioner Borra during the Oral Argument
that the software currently being used by Comelec was
merely the demo version, inasmuch as the final version
that would actually be used in the elections was still
being developed and had not yet been finalized.
It is not clear when the final version of the software
would be ready for testing and deployment. It seems to
the Court that Comelec is just keeping its fingers
crossed and hoping the final product would work. Is
there a Plan B in case it does not? Who knows? But all
these software programs are part and parcel of the
bidding and the Contract awarded to the
Consortium. Why is it that the machines are already
being brought in and paid for, when there is as yet no way
of knowing if the final version of the software would be
able to run them properly, as well as canvass and
consolidate the results in the manner required?
The counting machines, as well as the canvassing
system, will never work properly without the correct
software programs. There is an old adage that is still
valid to this day: Garbage in, garbage out. No matter
how powerful, advanced and sophisticated the
computers and the servers are, if the software being
utilized is defective or has been compromised, the
results will be no better than garbage. And to think that
what is at stake here is the 2004 national elections -- the
very basis of our democratic life.
Correction of Defects?
To their Memorandum, public respondents proudly
appended 19 Certifications issued by DOST declaring
that some 285 counting machines had been tested and
had passed the acceptance testing conducted by the
Department on October 8-18, 2003. Among those tested
were some machines that had failed previous tests, but
had undergone adjustments and thus passed re-testing.
Unfortunately, the Certifications from DOST fail to
divulge in what manner and by what standards or
criteria the condition, performance and/or readiness of
the machines were re-evaluated and re-appraised and
thereafter given the passing mark. Apart from that fact,
the remedial efforts of respondents were, not
surprisingly, apparently focused again on the machines
-- the hardware. Nothing was said or done about
thesoftware -- the deficiencies as to detection and
prevention of downloading and entering previously
downloaded data, as well as the capability to print an
audit trail. No matter how many times the machines were
tested and re-tested, if nothing was done about the
programming defects and deficiencies, the same danger
of massive electoral fraud remains. As anyone who has a
modicum of knowledge of computers would say, Thats
elementary!
And only last December 5, 2003, an Inq7.net news
report quoted the Comelec chair as saying that the new
automated poll system would be used nationwide in
May 2004, even as the software for the system remained
unfinished. It also reported that a certain Titus Manuel
of the Philippine Computer Society, which was helping
Comelec test the hardware and software, said that the
software for the counting still had to be submitted on
December 15, while the software for the canvassing was
due in early January.
Even as Comelec continues making payments for the
ACMs, we keep asking ourselves: who is going to ensure
that the software would be tested and would work
properly?
At any rate, the re-testing of the machines and/or the
100 percent testing of all machines (testing of every
single unit) would not serve to eradicate the grave
abuse of discretion already committed by Comelec when
it awarded the Contract on April 15, 2003, despite the
obvious and admitted flaws in the bidding process, the
failure of the winning bidder to qualify, and the inability
of the ACMs and the intended software to meet the bid
requirements and rules.
Comelecs Latest
Assurances Are
Unpersuasive
Even the latest pleadings filed by Comelec do not serve
to allay our apprehensions. They merely affirm and
compound the serious violations of law and gravely
abusive acts it has committed. Let us examine them.
The Resolution issued by this Court on December 9,
2003 required respondents to inform it as to the
number of ACMs delivered and paid for, as well as the
total payment made to date for the purchase
thereof. They were likewise instructed to submit a
certification from the DOST attesting to the number of
ACMs tested, the number found to be defective;
and whether the reprogrammed software has been tested
and found to have complied with the requirements under
Republic Act No. 8436.[50]
In its Partial Compliance and Manifestation dated
December 29, 2003, Comelec informed the Court that
1,991 ACMs had already been delivered to the
Commission as of that date. It further certified that it
had already paid the supplier the sum
of P849,167,697.41, which corresponded to 1,973 ACM
units that had passed the acceptance testing procedures
conducted by the MIRDC-DOST[51] and which had
therefore been accepted by the poll body.
In the same submission, for the very first time, Comelec
also disclosed to the Court the following:
The Automated Counting and Canvassing Project
involves not only the manufacturing of the ACM
hardware but also the development of three (3) types of
software, which are intended for use in the following:
1. Evaluation of Technical Bids
2. Testing and Acceptance Procedures
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3. Election Day Use.
Purchase of the First Type of
Software Without Evaluation
In other words, the first type of software was to be
developed solely for the purpose of enabling the
evaluation of the bidders technical bid.Comelec
explained thus: In addition to the presentation of the
ACM hardware, the bidders were required to develop a
base software program that will enable the ACM to
function properly. Since the software program utilized
during the evaluation of bids is not the actual software
program to be employed on election day, there being two
(2) other types of software program that will still have to
be developed and thoroughly tested prior to actual
election day use, defects in the base software that can be
readily corrected by reprogramming are considered
minor in nature, and may therefore be waived.
In short, Comelec claims that it evaluated the bids and
made the decision to award the Contract to the winning
bidder partly on the basis of the operation of the ACMs
running a base software. That software was therefore
nothing but a sample or demo software, which would
not be the actual one that would be used on election
day. Keeping in mind that the Contract involves the
acquisition of not just the ACMs or the hardware, but
also the software that would run them, it is now even
clearer that the Contract was awarded without Comelec
having seen, much less evaluated, the final product --
the software that would finally be utilized come election
day. (Not even the near-final product, for that matter).
What then was the point of conducting the bidding,
when the software that was the subject of the Contract
was still to be created and could conceivably undergo
innumerable changes before being considered as being
in final form? And that is not all!
No Explanation for Lapses
in the Second Type of Software
The second phase, allegedly involving the second type of
software, is simply denominated Testing and
Acceptance Procedures. As best as we can construe,
Comelec is claiming that this second type of software is
also to be developed and delivered by the supplier in
connection with the testing and acceptance phase of the
acquisition process. The previous pleadings, though --
including the DOST reports submitted to this Court --
have not heretofore mentioned any statement,
allegation or representation to the effect that a
particular set of software was to be developed and/or
delivered by the supplier in connection with the testing
and acceptance of delivered ACMs.
What the records do show is that the imported ACMs
were subjected to the testing and acceptance process
conducted by the DOST. Since the initial batch delivered
included a high percentage of machines that had failed
the tests, Comelec asked the DOST to conduct a 100
percent testing; that is, to test every single one of the
ACMs delivered. Among the machines tested on October
8 to 18, 2003, were some units that had failed previous
tests but had subsequently been re-tested and had
passed. To repeat, however, until now, there has never
been any mention of a second set or type of software
pertaining to the testing and acceptance process.
In any event, apart from making that misplaced and
uncorroborated claim, Comelec in the same submission
also professes (in response to the concerns expressed
by this Court) that the reprogrammed software has
been tested and found to have complied with the
requirements of RA 8436. It reasoned thus: Since the
software program is an inherent element in the
automated counting system, the certification issued by
the MIRDC-DOST that one thousand nine hundred
seventy-three (1,973) units passed the acceptance test
procedures is an official recognition by the MIRDC-DOST
that the software component of the automated election
system, which has been reprogrammed to comply with
the provisions of Republic Act No. 8436 as prescribed in
the Ad Hoc Technical Evaluation Committees ACM Testing
and Acceptance Manual, has passed the MIRDC-DOST
tests.
The facts do not support this sweeping statement of
Comelec. A scrutiny of the MIRDC-DOST letter dated
December 15, 2003,[52] which it relied upon, does not
justify its grand conclusion. For claritys sake, we quote
in full the letter-certification, as follows:
15 December 2003
HON. RESURRECCION Z. BORRA
Commissioner-in-Charge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila
Attention: Atty. Jose M. Tolentino, Jr.
Project Director
Dear Commissioner Borra:
We are pleased to submit 11 DOST Test Certifications
representing 11 lots and covering 158 units of
automated counting machines (ACMs) that we have
tested from 02-12 December 2003.
To date, we have tested all the 1,991 units of ACMs,
broken down as follow: (sic)
1st batch - 30 units 4th batch - 438 units
2nd batch - 288 units 5th batch - 438 units
3rd batch - 414 units 6th batch - 383 units
It should be noted that a total of 18 units have failed the
test. Out of these 18 units, only one (1) unit has failed
the retest.
Thank you and we hope you will find everything in
order.
Very truly yours,
ROLANDO T. VILORIA, CESO III
Executive Director cum
Chairman, DOST-Technical Evaluation Committee
Even a cursory glance at the foregoing letter shows that
it is completely bereft of anything that would remotely
support Comelecs contention that the software
component of the automated election system x x x has
been reprogrammed to comply with RA 8436, and has
passed the MIRDC-DOST tests. There is no mention at all
of any software reprogramming. If the MIRDC-DOST had
indeed undertaken the supposed reprogramming and
the process turned out to be successful, that agency
would have proudly trumpeted its singular
achievement.
How Comelec came to believe that such reprogramming
had been undertaken is unclear. In any event, the
Commission is not forthright and candid with the
factual details. If reprogramming has been done, who
performed it and when? What exactly did the process
involve? How can we be assured that it was properly
performed? Since the facts attendant to the alleged
reprogramming are still shrouded in mystery, the Court
cannot give any weight to Comelecs bare allegations.
The fact that a total of 1,973 of the machines has
ultimately passed the MIRDC-DOST tests does not by
itself serve as an endorsement of the soundness of the
software program, much less as a proof that it has been
reprogrammed. In the first place, nothing on record
shows that the tests and re-tests conducted on the
machines were intended to address the serious
deficiencies noted earlier. As a matter of fact, the
MIRDC-DOST letter does not even indicate what kinds of
tests or re-tests were conducted, their exact nature and
scope, and the specific objectives thereof.[53] The
absence of relevant supporting documents, combined
with the utter vagueness of the letter, certainly fails to
inspire belief or to justify the expansive confidence
displayed by Comelec. In any event, it goes without
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saying that remedial measures such as the alleged
reprogramming cannot in any way mitigate the grave
abuse of discretion already committed as early as April
15, 2003.
Rationale of Public Bidding Negated
by the Third Type of Software
Respondent Comelec tries to assuage this Courts
anxiety in these words: The reprogrammed software
that has already passed the requirements of Republic
Act No. 8436 during the MIRDC-DOST testing and
acceptance procedures will require further
customization since the following additional elements,
among other things, will have to be considered before
the final software can be used on election day: 1. Final
Certified List of Candidates x x x 2. Project of Precincts x
x x 3. Official Ballot Design and Security Features x x x 4.
Encryption, digital certificates and digital signatures x x
x. The certified list of candidates for national elective
positions will be finalized on or before 23 January 2004
while the final list of projects of precincts will be
prepared also on the same date. Once all the above
elements are incorporated in the software program, the
Test Certification Group created by the Ad Hoc Technical
Evaluation Committee will conduct meticulous testing of
the final software before the same can be used on election
day. In addition to the testing to be conducted by said
Test Certification Group, the Comelec will conduct mock
elections in selected areas nationwide not only for
purposes of public information but also to further test the
final election day program. Public respondent Comelec,
therefore, requests that it be given up to 16 February
2004 to comply with this requirement.
The foregoing passage shows the imprudent approach
adopted by Comelec in the bidding and acquisition
process. The Commission says that before the software
can be utilized on election day, it will require
customization through addition of data -- like the list of
candidates, project of precincts, and so on. And
inasmuch as such data will become available only in
January 2004 anyway, there is therefore no perceived
need on Comelecs part to rush the supplier into
producing the final (or near-final) version of the
software before that time. In any case, Comelec argues
that the software needed for the electoral exercise can
be continuously developed, tested, adjusted and
perfected, practically all the way up to election day, at
the same time that the Commission is undertaking all
the other distinct and diverse activities pertinent to the
elections.
Given such a frame of mind, it is no wonder that
Comelec paid little attention to the counting and
canvassing software during the entire bidding process,
which took place in February-March 2003. Granted that
the software was defective, could not detect and prevent
the re-use of previously downloaded data or produce
the audit trail -- aside from its other shortcomings --
nevertheless, all those deficiencies could still be
corrected down the road. At any rate, the software used
for bidding purposes would not be the same one that
will be used on election day, so why pay any attention to
its defects? Or to the Comelecs own bidding rules for
that matter?
Clearly, such jumbled ratiocinations completely negate
the rationale underlying the bidding process mandated
by law.
At the very outset, the Court has explained that Comelec
flagrantly violated the public policy on public biddings
(1) by allowing MPC/MPEI to participate in the bidding
even though it was not qualified to do so; and (2) by
eventually awarding the Contract to MPC/MPEI. Now,
with the latest explanation given by Comelec, it is clear
that the Commission further desecrated the law on
public bidding by permitting the winning bidder to
change and alter the subject of the Contract (the
software), in effect allowing a substantive amendment
without public bidding.
This stance is contrary to settled jurisprudence
requiring the strict application of pertinent rules,
regulations and guidelines for public bidding for the
purpose of placing each bidder, actual or potential, on
the same footing. The essence of public bidding is, after
all, an opportunity for fair competition, and a fair basis
for the precise comparison of bids. In common parlance,
public bidding aims to level the playing field. That
means each bidder must bid under the same conditions;
and be subject to the same guidelines, requirements and
limitations, so that the best offer or lowest bid may be
determined, all other things being equal.
Thus, it is contrary to the very concept of public bidding
to permit a variance between the conditions under
which bids are invited and those under which proposals
are submitted and approved; or, as in this case, the
conditions under which the bid is won and those under
which the awarded Contract will be complied with. The
substantive amendment of the contract bidded out,
without any public bidding -- after the bidding process
had been concluded -- is violative of the public policy on
public biddings, as well as the spirit and intent of RA
8436. The whole point in going through the public
bidding exercise was completely lost. The very rationale
of public bidding was totally subverted by the
Commission.
From another perspective, the Comelec approach also
fails to make sense. Granted that, before election day,
the software would still have to be customized to each
precinct, municipality, city, district, and so on, there still
was nothing at all to prevent Comelec from requiring
prospective suppliers/bidders to produce, at the very
start of the bidding process, the next-to-final versions of
the software (the best software the suppliers had) --
pre-tested and ready to be customized to the final list of
candidates and project of precincts, among others, and
ready to be deployed thereafter. The satisfaction of such
requirement would probably have provided far better
bases for evaluation and selection, as between
suppliers, than the so-called demo software.
Respondents contend that the bidding suppliers
counting machines were previously used in at least one
political exercise with no less than 20 million voters. If
so, it stands to reason that the software used in that past
electoral exercise would probably still be available and,
in all likelihood, could have been adopted for use in this
instance. Paying for machines and software of that
category (already tried and proven in actual elections
and ready to be adopted for use) would definitely make
more sense than paying the same hundreds of millions
of pesos for demo software and empty promises of
usable programs in the future.
But there is still another gut-level reason why the
approach taken by Comelec is reprehensible. It rides on
the perilous assumption that nothing would go wrong;
and that, come election day, the Commission and the
supplier would have developed, adjusted and re-
programmed the software to the point where the
automated system could function as envisioned. But
what if such optimistic projection does not
materialize? What if, despite all their herculean efforts,
the software now being hurriedly developed and tested
for the automated system performs dismally and
inaccurately or, worse, is hacked and/or manipulated?
[54]
What then will we do with all the machines and
defective software already paid for in the amount
of P849 million of our tax money? Even more
important, what will happen to our country in case of
failure of the automation?
The Court cannot grant the plea of Comelec that it be
given until February 16, 2004 to be able to submit a
135
certification relative to the additional elements of the
software that will be customized, because for us to do so
would unnecessarily delay the resolution of this case
and would just give the poll body an unwarranted
excuse to postpone the 2004 elections. On the other
hand, because such certification will not cure the
gravely abusive actions complained of by petitioners, it
will be utterly useless.
Is this Court being overly pessimistic and perhaps even
engaging in speculation? Hardly. Rather, the Court holds
that Comelec should not have gambled on the
unrealistic optimism that the suppliers software
development efforts would turn out well. The
Commission should have adopted a much more prudent
and judicious approach to ensure the delivery of tried
and tested software, and readied alternative courses of
action in case of failure. Considering that the nations
future is at stake here, it should have done no less.
Epilogue
Once again, the Court finds itself at the crossroads of
our nations history. At stake in this controversy is not
just the business of a computer supplier, or a
questionable proclamation by Comelec of one or more
public officials. Neither is it about whether this country
should switch from the manual to the automated system
of counting and canvassing votes. At its core is the
ability and capacity of the Commission on Elections to
perform properly, legally and prudently its legal
mandate to implement the transition from manual to
automated elections.
Unfortunately, Comelec has failed to measure up to this
historic task. As stated at the start of this Decision,
Comelec has not merely gravely abused its discretion in
awarding the Contract for the automation of the
counting and canvassing of the ballots. It has also put at
grave risk the holding of credible and peaceful elections
by shoddily accepting electronic hardware and software
that admittedly failed to pass legally mandated technical
requirements. Inadequate as they are, the remedies it
proffers post facto do not cure the grave abuse of
discretion it already committed (1) on April 15, 2003,
when it illegally made the award; and (2) sometime in
May 2003 when it executed the Contract for the
purchase of defective machines and non-existent
software from a non-eligible bidder.
For these reasons, the Court finds it totally unacceptable
and unconscionable to place its imprimatur on this void
and illegal transaction that seriously endangers the
breakdown of our electoral system. For this Court to
cop-out and to close its eyes to these illegal
transactions, while convenient, would be to abandon its
constitutional duty of safeguarding public interest.
As a necessary consequence of such nullity and
illegality, the purchase of the machines and all
appurtenances thereto including the still-to-be-
produced (or in Comelecs words, to be reprogrammed)
software, as well as all the payments made therefor,
have no basis whatsoever in law.The public funds
expended pursuant to the void Resolution and Contract
must therefore be recovered from the payees and/or
from the persons who made possible the illegal
disbursements, without prejudice to possible criminal
prosecutions against them.
Furthermore, Comelec and its officials concerned must
bear full responsibility for the failed bidding and award,
and held accountable for the electoral mess wrought by
their grave abuse of discretion in the performance of
their functions. The State, of course, is not bound by the
mistakes and illegalities of its agents and servants.
True, our country needs to transcend our slow, manual
and archaic electoral process. But before it can do so, it
must first have a diligent and competent electoral
agency that can properly and prudently implement a
well-conceived automated election system.
At bottom, before the country can hope to have a speedy
and fraud-free automated election, it must first be able
to procure the proper computerized hardware and
software legally, based on a transparent and valid
system of public bidding. As in any democratic system,
the ultimate goal of automating elections must be
achieved by a legal, valid and above-board process of
acquiring the necessary tools and skills therefor. Though
the Philippines needs an automated electoral process, it
cannot accept just any system shoved into its bosom
through improper and illegal methods. As the saying
goes, the end never justifies the means. Penumbral
contracting will not produce enlightened results.
WHEREFORE, the Petition is GRANTED. The Court
hereby declares NULL and VOID Comelec Resolution No.
6074 awarding the contract for Phase II of the CAES to
Mega Pacific Consortium (MPC). Also declared null and
void is the subject Contract executed between Comelec
and Mega Pacific eSolutions (MPEI).[55] Comelec is
further ORDERED to refrain from implementing any
other contract or agreement entered into with regard to
this project.
Let a copy of this Decision be furnished the Office of the
Ombudsman which shall determine the criminal
liability, if any, of the public officials (and conspiring
private individuals, if any) involved in the subject
Resolution and Contract. Let the Office of the Solicitor
General also take measures to protect the government
and vindicate public interest from the ill effects of the
illegal disbursements of public funds made by reason of
the void Resolution and Contract.
SO ORDERED.
VOTER’S STANDING
G.R. No. L-34150 October 16, 1971
ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF
ACCOUNTANT, THE AUDITOR, and THE DISBURSING
OFFICER OF THE 1971 CONSTITUTIONAL
CONVENTION, respondents, RAUL S. MANGLAPUS,
JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR
DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA,
LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and
JUAN V. BORRA, Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and
Auditor of the 1971 Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre
for respondent Disbursing Officer of the 1971
Constitutional Convention.
Intervenors in their own behalf.
BARREDO, J.:
Petition for prohibition principally to restrain the
respondent Commission on Elections "from undertaking
to hold a plebiscite on November 8, 1971," at which the
proposed constitutional amendment "reducing the
voting age" in Section 1 of Article V of the Constitution
of the Philippines to eighteen years "shall be,
submitted" for ratification by the people pursuant to
Organic Resolution No. 1 of the Constitutional
Convention of 1971, and the subsequent implementing
resolutions, by declaring said resolutions to be without
the force and effect of law in so far as they direct the
holding of such plebiscite and by also declaring the acts
of the respondent Commission (COMELEC) performed
and to be done by it in obedience to the aforesaid
Convention resolutions to be null and void, for being
violative of the Constitution of the Philippines.
As a preliminary step, since the petition named as
respondent only the COMELEC, the Count required that
136
copies thereof be served on the Solicitor General and
the Constitutional Convention, through its President, for
such action as they may deem proper to take. In due
time, respondent COMELEC filed its answer joining
issues with petitioner. To further put things in proper
order, and considering that the fiscal officers of the
Convention are indispensable parties in a proceeding of
this nature, since the acts sought to be enjoined involve
the expenditure of funds appropriated by law for the
Convention, the Court also ordered that the Disbursing
Officer, Chief Accountant and Auditor of the Convention
be made respondents. After the petition was so
amended, the first appeared thru Senator Emmanuel
Pelaez and the last two thru Delegate Ramon Gonzales.
All said respondents, thru counsel, resist petitioner's
action.
For reasons of orderliness and to avoid unnecessary
duplication of arguments and even possible confusion,
and considering that with the principal parties being
duly represented by able counsel, their interests would
be adequately protected already, the Court had to limit
the number of intervenors from the ranks of the
delegates to the Convention who, more or less, have
legal interest in the success of the respondents, and so,
only Delegates Raul S. Manglapus, Jesus G. Barrera,
Pablo S. Trillana III, Victor de la Serna, Marcelo B.
Fernan, Jose Y. Feria, Leonardo Siguion Reyna, Victor
Ortega and Juan B. Borra, all distinguished lawyers in
their own right, have been allowed to intervene jointly.
The Court feels that with such an array of brilliant and
dedicated counsel, all interests involved should be duly
and amply represented and protected. At any rate,
notwithstanding that their corresponding motions for
leave to intervene or to appear as amicus curiae 1 have
been denied, the pleadings filed by the other delegates
and some private parties, the latter in representation of
their minor children allegedly to be affected by the
result of this case with the records and the Court
acknowledges that they have not been without value as
materials in the extensive study that has been
undertaken in this case.
The background facts are beyond dispute. The
Constitutional Convention of 1971 came into being by
virtue of two resolutions of the Congress of the
Philippines approved in its capacity as a constituent
assembly convened for the purpose of calling a
convention to propose amendments to the Constitution
namely, Resolutions 2 and 4 of the joint sessions of
Congress held on March 16, 1967 and June 17, 1969
respectively. The delegates to the said Convention were
all elected under and by virtue of said resolutions and
the implementing legislation thereof, Republic Act 6132.
The pertinent portions of Resolution No 2 read as
follows:
SECTION 1. There is hereby called a convention to
propose amendments to the Constitution of the
Philippines, to be composed of two elective Delegates
from each representative district who shall have the
same qualifications as those required of Members of the
House of Representatives.
xxx xxx xxx
SECTION 7. The amendments proposed by the
Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes
cast in an election at which they are submitted to the
people for their ratification pursuant to Article XV of the
Constitution.
Resolution No. 4 merely modified the number of
delegates to represent the different cities and provinces
fixed originally in Resolution No 2.
After the election of the delegates held on November 10,
1970, the Convention held its inaugural session on June
1, 1971. Its preliminary labors of election of officers,
organization of committees and other preparatory
works over, as its first formal proposal to amend the
Constitution, its session which began on September 27,
1971, or more accurately, at about 3:30 in the morning
of September 28, 1971, the Convention approved
Organic Resolution No. 1 reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE
V OF THE CONSTITUTION OF THE PHILIPPINES SO AS
TO LOWER THE VOTING AGE TO 18
BE IT RESOLVED as it is hereby resolved by the 1971
Constitutional Convention:
Section 1. Section One of Article V of the Constitution of
the Philippines is amended to as follows:
Section 1. Suffrage may be exercised by (male) citizens
of the Philippines not otherwise disqualified by law,
who are (twenty-one) EIGHTEEN years or over and are
able to read and write, and who shall have resided in the
Philippines for one year and in the municipality wherein
they propose to vote for at least six months preceding
the election.
Section 2. This amendment shall be valid as part of the
Constitution of the Philippines when approved by a
majority of the votes cast in a plebiscite to coincide with
the local elections in November 1971.
Section 3. This partial amendment, which refers only to
the age qualification for the exercise of suffrage shall be
without prejudice to other amendments that will be
proposed in the future by the 1971 Constitutional
Convention on other portions of the amended Section or
on other portions of the entire Constitution.
Section 4. The Convention hereby authorizes the use of
the sum of P75,000.00 from its savings or from its
unexpended funds for the expense of the advanced
plebiscite; provided, however that should there be no
savings or unexpended sums, the Delegates waive
P250.00 each or the equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President
Diosdado Macapagal, called upon respondent Comelec
"to help the Convention implement (the above)
resolution." The said letter reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed
Resolution No. 1 quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No.
6132 otherwise known as the Constitutional Convention
Act of 1971, may we call upon you to help the
Convention implement this resolution:
Sincerely,
(Sgd.) DIOSDADO P. MACAPAGAL
DIOSDADO P. MACAPAGAL
President
On September 30, 1971, COMELEC "RESOLVED to
inform the Constitutional Convention that it will hold
the plebiscite on condition that:
(a) The Constitutional Convention will undertake the
printing of separate official ballots, election returns and
tally sheets for the use of said plebiscite at its expense;
(b) The Constitutional Convention will adopt its own
security measures for the printing and shipment of said
ballots and election forms; and
(c) Said official ballots and election forms will be
delivered to the Commission in time so that they could
be distributed at the same time that the Commission
will distribute its official and sample ballots to be used
in the elections on November 8, 1971.
What happened afterwards may best be stated by
quoting from intervenors' Governors' statement of the
genesis of the above proposal:
137
The President of the Convention also issued an order
forming an Ad Hoc Committee to implement the
Resolution.
This Committee issued implementing guidelines which
were approved by the President who then transmitted
them to the Commission on Elections.
The Committee on Plebiscite and Ratification filed a
report on the progress of the implementation of the
plebiscite in the afternoon of October 7,1971, enclosing
copies of the order, resolution and letters of transmittal
above referred to (Copy of the report is hereto attached
as Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7, 1971,
the Convention approved a resolution authored by
Delegate Antonio Olmedo of Davao Oriental, calling for a
recess of the Convention from November 1, 1971 to
November 9, 1971 to permit the delegates to campaign
for the ratification of Organic Resolution No. 1. (Copies
of the resolution and the transcript of debate thereon
are hereto attached as Annexes 9 and 9-A
Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution
No. 24 submitted by Delegate Jose Ozamiz confirming
the authority of the President of the Convention to
implement Organic Resolution No. 1, including the
creation of the Ad Hoc Committee ratifying all acts
performed in connection with said implementation.
Upon these facts, the main thrust of the petition is that
Organic Resolution No. 1 and the other implementing
resolutions thereof subsequently approved by the
Convention have no force and effect as laws in so far as
they provide for the holding of a plebiscite co-incident
with the elections of eight senators and all city,
provincial and municipal officials to be held on
November 8, 1971, hence all of Comelec's acts in
obedience thereof and tending to carry out the holding
of the plebiscite directed by said resolutions are null
and void, on the ground that the calling and holding of
such a plebiscite is, by the Constitution, a power lodged
exclusively in Congress, as a legislative body, and may
not be exercised by the Convention, and that, under
Section 1, Article XV of the Constitution, the proposed
amendment in question cannot be presented to the
people for ratification separately from each and all of
the other amendments to be drafted and proposed by
the Convention. On the other hand, respondents and
intervenors posit that the power to provide for, fix the
date and lay down the details of the plebiscite for the
ratification of any amendment the Convention may
deem proper to propose is within the authority of the
Convention as a necessary consequence and part of its
power to propose amendments and that this power
includes that of submitting such amendments either
individually or jointly at such time and manner as the
Convention may direct in discretion. The Court's
delicate task now is to decide which of these two poses
is really in accord with the letter and spirit of the
Constitution.
As a preliminary and prejudicial matter, the intervenors
raise the question of jurisdiction. They contend that the
issue before Us is a political question and that the
Convention being legislative body of the highest order is
sovereign, and as such, its acts impugned by petitioner
are beyond the control of the Congress and the courts.
In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In
fact, respondents Chief Accountant and Auditor of the
convention expressly concede the jurisdiction of this
Court in their answer acknowledging that the issue
herein is a justifiable one.
Strangely, intervenors cite in support of this contention
portions of the decision of this Court in the case of
Gonzales v. Comelec, 21 SCRA 774, wherein the
members of the Court, despite their being divided in
their opinions as to the other matters therein involved,
were precisely unanimous in upholding its jurisdiction.
Obviously, distinguished counsel have either failed to
grasp the full impact of the portions of Our decision
they have quoted or would misapply them by taking
them out of context.
There should be no more doubt as to the position of this
Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a
constituent assembly, and, for that matter, those of a
constitutional convention called for the purpose of
proposing amendments to the Constitution, which
concededly is at par with the former. A simple reading of
Our ruling in that very case of Gonzales relied upon by
intervenors should dispel any lingering misgivings as
regards that point. Succinctly but comprehensively,
Chief Justice Concepcion held for the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil.
139, 157), this Court — speaking through one of the
leading members of the Constitutional Convention and a
respected professor of Constitutional Law, Dr. Jose P.
Laurel — declared that "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."
It is true that in Mabanag v. Lopez Vito (supra), this
Court characterizing the issue submitted thereto as a
political one declined to pass upon the question
whether or not a given number of votes cast in Congress
in favor of a proposed amendment to the Constitution
— which was being submitted to the people for
ratification — satisfied the three-fourths vote
requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes v.
Chief Accountant of the Senate (81 Phil. 818), Avelino v.
Cuenco, (L-2851, March 4 & 14, 1949), Tañada v. Cuenco,
(L-10520, Feb. 28, 1957) and Macias v. Commission on
Elections, (L-18684, Sept. 14, 1961). In the first we held
that the officers and employees of the Senate Electoral
Tribunal are under its supervision and control, not of
that of the Senate President, as claimed by the latter; in
the second, this Court proceeded to determine the
number of Senators necessary for quorum in the Senate;
in the third, we nullified the election, by Senators
belonging to the party having the largest number of
votes in said chamber, purporting to act, on behalf of the
party having the second largest number of votes therein
of two (2) Senators belonging to the first party, as
members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to
apportion the representatives districts for the House of
Representatives, upon the ground that the
apportionment had not been made as may be possible
according to the number of inhabitants of each
province. Thus we rejected the theory, advanced in
these four (4) cases that the issues therein raised were
political questions the determination of which is beyond
judicial review.
Indeed, the power to amend the Constitution or to
propose amendments thereto is not included in the
general grant of legislative powers to Congress (Section
1, Art. VI, Constitution of the Philippines). It is part of
the inherent powers of the people — as the repository
sovereignty in a republican state, such as ours (Section
1, Art. 11, Constitution of the Philippines) — to make,
and, hence, to amend their own Fundamental Law.
Congress may propose amendments to the Constitution
merely because the same explicitly grants such power.
(Section 1, Art. XV, Constitution of the Philippines)
138
Hence, when exercising the same, it is said that Senators
and members of the House of Representatives act, not as
members of Congress, but as component elements of
a constituent assembly. When acting as such, the
members of Congress derive their authority from the
Constitution, unlike the people, when performing the
same function, (Of amending the Constitution) for their
authority does not emanate from the Constitution —
they are the very source of all powers of
government including the Constitution itself.
Since, when proposing, as a constituent assembly,
amendments to the Constitution, the members of
Congress derive their authority from the Fundamental
Law, it follows, necessarily, that they do not have the
final say on whether or not their acts are within or
beyond constitutional limits. Otherwise, they could
brush aside and set the same at naught, contrary to the
basic tenet that ours is a government of laws, not of
men, and to the rigid nature of our Constitution. Such
rigidity is stressed by the fact that the Constitution
expressly confers upon the Supreme Court, (And,
inferentially, to lower courts.) the power to declare a
treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character
of treaty-making power.
In short, the issue whether or not a Resolution of
Congress — acting as a constituent assembly — violates
the Constitution is essentially justiciable not political,
and, hence, subject to judicial review, and, to the extent
that this view may be inconsistent with the stand taken
in Mabanag v. Lopez Vito, (supra) the latter should be
deemed modified accordingly. The Members of the
Court are unanimous on this point.
No one can rightly claim that within the domain of its
legitimate authority, the Convention is not supreme.
Nowhere in his petition and in his oral argument and
memoranda does petitioner point otherwise. Actually,
what respondents and intervenors are seemingly
reluctant to admit is that the Constitutional Convention
of 1971, as any other convention of the same nature,
owes its existence and derives all its authority and
power from the existing Constitution of the Philippines.
This Convention has not been called by the people
directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new
government born of either a war of liberation from a
mother country or of a revolution against an existing
government or of a bloodless seizure of powera la coup
d'etat. As to such kind of conventions, it is absolutely
true that the convention is completely without restrain
and omnipotent all wise, and it is as to such conventions
that the remarks of Delegate Manuel Roxas of the
Constitutional Convention of 1934 quoted by Senator
Pelaez refer. No amount of rationalization can belie the
fact that the current convention came into being only
because it was called by a resolution of a joint session of
Congress acting as a constituent assembly by authority
of Section 1, Article XV of the present Constitution
which provides:
ARTICLE XV — AMENDMENTS
SECTION 1. The Congress in joint session assembled, by
a vote of three-fourths of all the Members of the Senate
and of the House of Representatives voting separately,
may propose amendments to this Constitution or call a
convention for the purpose. Such amendments shall be
valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the
amendments are submitted to the people for their
ratification.
True it is that once convened, this Convention became
endowed with extra ordinary powers generally beyond
the control of any department of the existing
government, but the compass of such powers can be co-
extensive only with the purpose for which the
convention was called and as it may propose cannot
have any effect as part of the Constitution until the same
are duly ratified by the people, it necessarily follows
that the acts of convention, its officers and members are
not immune from attack on constitutional grounds. The
present Constitution is in full force and effect in its
entirety and in everyone of its parts the existence of the
Convention notwithstanding, and operates even within
the walls of that assembly. While it is indubitable that in
its internal operation and the performance of its task to
propose amendments to the Constitution it is not
subject to any degree of restraint or control by any
other authority than itself, it is equally beyond cavil that
neither the Convention nor any of its officers or
members can rightfully deprive any person of life,
liberty or property without due process of law, deny to
anyone in this country the equal protection of the laws
or the freedom of speech and of the press in disregard of
the Bill of Rights of the existing Constitution. Nor, for
that matter, can such Convention validly pass any
resolution providing for the taking of private property
without just compensation or for the imposition or
exacting of any tax, impost or assessment, or declare
war or call the Congress to a special session, suspend
the privilege of the writ of habeas corpus, pardon a
convict or render judgment in a controversy between
private individuals or between such individuals and the
state, in violation of the distribution of powers in the
Constitution.
It being manifest that there are powers which the
Convention may not and cannot validly assert, much
less exercise, in the light of the existing Constitution, the
simple question arises, should an act of the Convention
be assailed by a citizen as being among those not
granted to or inherent in it, according to the existing
Constitution, who can decide whether such a contention
is correct or not? It is of the very essence of the rule of
law that somehow somewhere the Power and duty to
resolve such a grave constitutional question must be
lodged on some authority, or we would have to confess
that the integrated system of government established by
our founding fathers contains a wide vacuum no
intelligent man could ignore, which is naturally
unworthy of their learning, experience and
craftsmanship in constitution-making.
We need not go far in search for the answer to the query
We have posed. The very decision of Chief Justice
Concepcion in Gonzales, so much invoked by
intervenors, reiterates and reinforces the irrefutable
logic and wealth of principle in the opinion written for a
unanimous Court by Justice Laurel in Angara vs.
Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with
deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of
the government. The overlapping and interlacing of
functions and duties between the several departments,
however, sometimes makes it hard to say where the one
leaves off and the other begins. In times of social
disquietude or political excitement, the great landmark
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
139
system of check 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 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 or
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
strike conclusions unrelated to actualities. Narrowed as
its functions 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.
But much as we might postulate on the internal checks
of power provided in our Constitution, it ought not the
less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of
constitutional liberty ... the people who are authors of
this blessing must also be its guardians ... their eyes
must be ever ready to mark, their voices to pronounce ...
aggression on the authority of their Constitution." In the
last and ultimate analysis then, must the success of our
government in the unfolding years to come be tested in
the crucible of Filipino minds and hearts than in
consultation rooms and court chambers.
In the case at bar, the National Assembly has by
resolution (No. 8) of December 3, 1935, confirmed the
election of the herein petitioner to the said body. On the
other hand, the Electoral Commission has by resolution
adopted on December 9, 1935, fixed said date as the last
day for the filing of protests against the election, returns
and qualifications of members of the National
Assembly; notwithstanding the previous confirmations
made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the
National Assembly has the effect of cutting off the
power of the Electoral Commission to entertain protests
against the election, returns and qualifications of
members of the National Assembly, submitted after
December 3, 1935 then the resolution of the Electoral
Commission of December 9, 1935, is mere surplusage
and had no effect. But, if, as contended by the
respondents, the Electoral Commission has the sole
power of regulating its proceedings to the exclusion of
the National Assembly, then the resolution of December
9, 1935, by which the Electoral Commission fixed said
date as the last day for filing protests against the
election, returns and qualifications of members of the
National Assembly, should be upheld.
Here is then presented an actual controversy involving
as it does a conflict of a grave constitutional nature
between the National Assembly on the one hand and the
Electoral Commission on the other. From the very
nature of the republican government established in our
country in the light of American experience and of our
own, upon the judicial department is thrown the solemn
and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries.
The Electoral Commission as we shall have occasion to
refer hereafter, is a constitutional organ, created for a
specific purpose, namely, to determine all contests
relating to the election, returns and qualifications of the
members of the National Assembly. Although the
Electoral Commission may not be interfered with, when
and while acting within the limits of its authority, it does
not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and
that it is not subject to constitutional restriction. The
Electoral Commission is not a separate department of
the government, and even if it were, conflicting claims of
authority under the fundamental law between
departmental powers and agencies of the government
are necessarily determined by the judiciary in
justiciable and appropriate cases. Discarding the English
type and other European types of constitutional
government, the framers of our Constitution adopted
the American type where the written constitution is
interpreted and given effect by the judicial department.
In some countries which have declined to follow the
American example, provisions have been inserted in
their constitutions prohibiting the courts from
exercising the power to interpret the fundamental law.
This is taken as a recognition of what otherwise would
be the rule that in the absence of direct prohibition,
courts are bound to assume what is logically their
function. For instance, the Constitution of Poland of
1921 expressly provides that courts shall have no power
to examine the validity of statutes (art. 81, Chap. IV).
The former Austrian Constitution contained a similar
declaration. In countries whose constitution are silent
in this respect, courts have assumed this power. This is
true in Norway, Greece, Australia and South Africa.
Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary
Law to Constitutional Charter of the Czechoslavak,
Republic, February 29, 1920) and Spain (arts. 121-123,
Title IX, Constitution of the Republic of 1931) especial
constitutional courts are established to pass upon the
validity of ordinary laws. In our case, the nature of the
present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of
authority between two agencies created by the
Constitution. Were we to decline to take cognizance of
the controversy, who will determine the conflict? And if
140
the conflict were left undecided and undetermined,
would not a void be thus created in our constitutional
system which may in the long run prove destructive of
the entire framework? To ask these questions is to
answer them. Natura vacuum abhorret, so must we
avoid exhaustion in our constitutional system. Upon
principle, reason, and authority, we are clearly of the
opinion that upon the admitted facts of the present case,
this court has jurisdiction over the Electoral
Commission and the subject matter of the present
controversy for the purpose of determining the
character, scope and extent of the constitutional grant to
the Electoral Commission as "the sole judge of all
contests relating to the election, returns and
qualifications of the members of the National Assembly."
. proposal, and that, in truth, the herein petition is not
As the Chief Justice has made it clear in Gonzales, like
Justice Laurel did in Angara, these postulates just
quoted do not apply only to conflicts of authority
between the three existing regular departments of the
government but to all such conflicts between and among
these departments, or, between any of them, on the one
hand, and any other constitutionally created
independent body, like the electoral tribunals in
Congress, the Comelec and the Constituent assemblies
constituted by the House of Congress, on the other. We
see no reason of logic or principle whatsoever, and none
has been convincingly shown to Us by any of the
respondents and intervenors, why the same ruling
should not apply to the present Convention, even if it is
an assembly of delegate elected directly by the people,
since at best, as already demonstrated, it has been
convened by authority of and under the terms of the
present Constitution..
Accordingly, We are left with no alternative but to
uphold the jurisdiction of the Court over the present
case. It goes without saying that We do this not because
the Court is superior to the Convention or that the
Convention is subject to the control of the Court, but
simply because both the Convention and the Court are
subject to the Constitution and the rule of law, and
"upon principle, reason and authority," per Justice
Laurel, supra, it is within the power as it is the solemn
duty of the Court, under the existing Constitution to
resolve the issues in which petitioner, respondents and
intervenors have joined in this case.
II
The issue of jurisdiction thus resolved, We come to the
crux of the petition. Is it within the powers of the
Constitutional Convention of 1971 to order, on its own
fiat, the holding of a plebiscite for the ratification of the
proposed amendment reducing to eighteen years the
age for the exercise of suffrage under Section 1 of Article
V of the Constitution proposed in the Convention's
Organic Resolution No. 1 in the manner and form
provided for in said resolution and the subsequent
implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of
this case demand the most accurate and unequivocal
statement of the real issue which the Court is called
upon to resolve. Petitioner has very clearly stated that
he is not against the constitutional extension of the right
of suffrage to the eighteen-year-olds, as a matter of fact,
he has advocated or sponsored in Congress such a
intended by him to prevent that the proposed
amendment here involved be submitted to the people
for ratification, his only purpose in filing the petition
being to comply with his sworn duty to prevent,
Whenever he can, any violation of the Constitution of
the Philippines even if it is committed in the course of or
in connection with the most laudable undertaking.
Indeed, as the Court sees it, the specific question raised
in this case is limited solely and only to the point of
whether or not it is within the power of the Convention
to call for a plebiscite for the ratification by the people
of the constitutional amendment proposed in the
abovequoted Organic Resolution No. 1, in the manner
and form provided in said resolution as well as in the
subject question implementing actions and resolution of
the Convention and its officers, at this juncture of its
proceedings, when as it is a matter of common
knowledge and judicial notice, it is not set to
adjourn sine die, and is, in fact, still in the preliminary
stages of considering other reforms or amendments
affecting other parts of the existing Constitution; and,
indeed, Organic Resolution No. 1 itself expressly
provides, that the amendment therein proposed "shall
be without prejudice to other amendments that will be
proposed in the future by the 1971 Constitutional
Convention on other portions of the amended section or
on other portions of the entire Constitution." In other
words, nothing that the Court may say or do, in this case
should be understood as reflecting, in any degree or
means the individual or collective stand of the members
of the Court on the fundamental issue of whether or not
the eighteen-year-olds should be allowed to vote, simply
because that issue is not before Us now. There should be
no doubt in the mind of anyone that, once the Court
finds it constitutionally permissible, it will not hesitate
to do its part so that the said proposed amendment may
be presented to the people for their approval or
rejection.
Withal, the Court rests securely in the conviction that
the fire and enthusiasm of the youth have not blinded
them to the absolute necessity, under the fundamental
principles of democracy to which the Filipino people is
committed, of adhering always to the rule of law. Surely,
their idealism, sincerity and purity of purpose cannot
permit any other line of conduct or approach in respect
of the problem before Us. The Constitutional Convention
of 1971 itself was born, in a great measure, because of
the pressure brought to bear upon the Congress of the
Philippines by various elements of the people, the youth
in particular, in their incessant search for a peaceful and
orderly means of bringing about meaningful changes in
the structure and bases of the existing social and
governmental institutions, including the provisions of
the fundamental law related to the well-being and
economic security of the underprivileged classes of our
people as well as those concerning the preservation and
protection of our natural resources and the national
patrimony, as an alternative to violent and chaotic ways
of achieving such lofty ideals. In brief, leaving aside the
excesses of enthusiasm which at times have justifiably
or unjustifiably marred the demonstrations in the
streets, plazas and campuses, the youth of the
Philippines, in general, like the rest of the people, do not
want confusion and disorder, anarchy and violence;
what they really want are law and order, peace and
orderliness, even in the pursuit of what they strongly
and urgently feel must be done to change the present
order of things in this Republic of ours. It would be
tragic and contrary to the plain compulsion of these
perspectives, if the Court were to allow itself in deciding
this case to be carried astray by considerations other
than the imperatives of the rule of law and of the
applicable provisions of the Constitution. Needless to
say, in a larger measure than when it binds other
departments of the government or any other official or
entity, the Constitution imposes upon the Court the
sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its
provisions in appropriate cases with the proper parties,
and by striking down any act violative thereof. Here, as
in all other cases, We are resolved to discharge that
duty.
141
During these twice when most anyone feels very
strongly the urgent need for constitutional reforms, to
the point of being convinced that meaningful change is
the only alternative to a violent revolution, this Court
would be the last to put any obstruction or impediment
to the work of the Constitutional Convention. If there
are respectable sectors opining that it has not been
called to supplant the existing Constitution in its
entirety, since its enabling provision, Article XV, from
which the Convention itself draws life expressly speaks
only of amendments which shall form part of it, which
opinion is not without persuasive force both in principle
and in logic, the seemingly prevailing view is that only
the collective judgment of its members as to what is
warranted by the present condition of things, as they
see it, can limit the extent of the constitutional
innovations the Convention may propose, hence the
complete substitution of the existing constitution is not
beyond the ambit of the Convention's authority.
Desirable as it may be to resolve, this grave divergence
of views, the Court does not consider this case to be
properly the one in which it should discharge its
constitutional duty in such premises. The issues raised
by petitioner, even those among them in which
respondents and intervenors have joined in an apparent
wish to have them squarely passed upon by the Court do
not necessarily impose upon Us the imperative
obligation to express Our views thereon. The Court
considers it to be of the utmost importance that the
Convention should be untrammelled and unrestrained
in the performance of its constitutionally as signed
mission in the manner and form it may conceive best,
and so the Court may step in to clear up doubts as to the
boundaries set down by the Constitution only when and
to the specific extent only that it would be necessary to
do so to avoid a constitutional crisis or a clearly
demonstrable violation of the existing Charter. Withal, it
is a very familiar principle of constitutional law that
constitutional questions are to be resolved by the
Supreme Court only when there is no alternative but to
do it, and this rule is founded precisely on the principle
of respect that the Court must accord to the acts of the
other coordinate departments of the government, and
certainly, the Constitutional Convention stands almost
in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have
already made it clear that the Convention came into
being by a call of a joint session of Congress pursuant to
Section I of Article XV of the Constitution, already
quoted earlier in this opinion. We reiterate also that as
to matters not related to its internal operation and the
performance of its assigned mission to propose
amendments to the Constitution, the Convention and its
officers and members are all subject to all the
provisions of the existing Constitution. Now We hold
that even as to its latter task of proposing amendments
to the Constitution, it is subject to the provisions of
Section I of Article XV. This must be so, because it is
plain to Us that the framers of the Constitution took care
that the process of amending the same should not be
undertaken with the same ease and facility in changing
an ordinary legislation. Constitution making is the most
valued power, second to none, of the people in a
constitutional democracy such as the one our founding
fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because
the Constitution affects the lives, fortunes, future and
every other conceivable aspect of the lives of all the
people within the country and those subject to its
sovereignty, every degree of care is taken in preparing
and drafting it. A constitution worthy of the people for
which it is intended must not be prepared in haste
without adequate deliberation and study. It is obvious
that correspondingly, any amendment of the
Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and
prepared with as much care and deliberation. From the
very nature of things, the drafters of an original
constitution, as already observed earlier, operate
without any limitations, restraints or inhibitions save
those that they may impose upon themselves. This is
not necessarily true of subsequent conventions called to
amend the original constitution. Generally, the framers
of the latter see to it that their handiwork is not lightly
treated and as easily mutilated or changed, not only for
reasons purely personal but more importantly, because
written constitutions are supposed to be designed so as
to last for some time, if not for ages, or for, at least, as
long as they can be adopted to the needs and exigencies
of the people, hence, they must be insulated against
precipitate and hasty actions motivated by more or less
passing political moods or fancies. Thus, as a rule, the
original constitutions carry with them limitations and
conditions, more or less stringent, made so by the
people themselves, in regard to the process of their
amendment. And when such limitations or conditions
are so incorporated in the original constitution, it does
not lie in the delegates of any subsequent convention to
claim that they may ignore and disregard such
conditions because they are as powerful and
omnipotent as their original counterparts.
Nothing of what is here said is to be understood as
curtailing in any degree the number and nature and the
scope and extent of the amendments the Convention
may deem proper to propose. Nor does the Court
propose to pass on the issue extensively and brilliantly
discussed by the parties as to whether or not the power
or duty to call a plebiscite for the ratification of the
amendments to be proposed by the Convention is
exclusively legislative and as such may be exercised only
by the Congress or whether the said power can be
exercised concurrently by the Convention with the
Congress. In the view the Court takes of present case, it
does not perceive absolute necessity to resolve that
question, grave and important as it may be. Truth to tell,
the lack of unanimity or even of a consensus among the
members of the Court in respect to this issue creates the
need for more study and deliberation, and as time is of
the essence in this case, for obvious reasons, November
8, 1971, the date set by the Convention for the plebiscite
it is calling, being nigh, We will refrain from making any
pronouncement or expressing Our views on this
question until a more appropriate case comes to Us.
After all, the basis of this decision is as important and
decisive as any can be.
The ultimate question, therefore boils down to this: Is
there any limitation or condition in Section 1 of Article
XV of the Constitution which is violated by the act of the
Convention of calling for a plebiscite on the sole
amendment contained in Organic Resolution No. 1? The
Court holds that there is, and it is the condition and
limitation that all the amendments to be proposed by
the same Convention must be submitted to the people in
a single "election" or plebiscite. It being indisputable
that the amendment now proposed to be submitted to a
plebiscite is only the first amendment the Convention
propose We hold that the plebiscite being called for the
purpose of submitting the same for ratification of the
people on November 8, 1971 is not authorized by
Section 1 of Article XV of the Constitution, hence all acts
of the Convention and the respondent Comelec in that
direction are null and void.
We have arrived at this conclusion for the following
reasons:
1. The language of the constitutional provision
aforequoted is sufficiently clear. lt says distinctly that
either Congress sitting as a constituent assembly or a
142
convention called for the purpose "may propose
amendments to this Constitution," thus placing no limit
as to the number of amendments that Congress or the
Convention may propose. The same provision also as
definitely provides that "such amendments shall be valid
as part of this Constitution when approved by a
majority of the votes cast at an election at which
the amendments are submitted to the people for their
ratification," thus leaving no room for doubt as to how
many "elections" or plebiscites may be held to ratify any
amendment or amendments proposed by the same
constituent assembly of Congress or convention, and the
provision unequivocably says "an election" which means
only one.
(2) Very little reflection is needed for anyone to realize
the wisdom and appropriateness of this provision. As
already stated, amending the Constitution is as serious
and important an undertaking as constitution making
itself. Indeed, any amendment of the Constitution is as
important as the whole of it if only because the
Constitution has to be an integrated and harmonious
instrument, if it is to be viable as the framework of the
government it establishes, on the one hand, and
adequately formidable and reliable as the succinct but
comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic
policies and aspirations of the people, on the other. lt is
inconceivable how a constitution worthy of any country
or people can have any part which is out of tune with its
other parts..
A constitution is the work of the people thru its drafters
assembled by them for the purpose. Once the original
constitution is approved, the part that the people play in
its amendment becomes harder, for when a whole
constitution is submitted to them, more or less they can
assumed its harmony as an integrated whole, and they
can either accept or reject it in its entirety. At the very
least, they can examine it before casting their vote and
determine for themselves from a study of the whole
document the merits and demerits of all or any of its
parts and of the document as a whole. And so also, when
an amendment is submitted to them that is to form part
of the existing constitution, in like fashion they can
study with deliberation the proposed amendment in
relation to the whole existing constitution and or any of
its parts and thereby arrive at an intelligent judgment as
to its acceptability.
This cannot happen in the case of the amendment in
question. Prescinding already from the fact that under
Section 3 of the questioned resolution, it is evident that
no fixed frame of reference is provided the voter, as to
what finally will be concomitant qualifications that will
be required by the final draft of the constitution to be
formulated by the Convention of a voter to be able to
enjoy the right of suffrage, there are other
considerations which make it impossible to vote
intelligently on the proposed amendment, although it
may already be observed that under Section 3, if a voter
would favor the reduction of the voting age to eighteen
under conditions he feels are needed under the
circumstances, and he does not see those conditions in
the ballot nor is there any possible indication whether
they will ever be or not, because Congress has reserved
those for future action, what kind of judgment can he
render on the proposal?
But the situation actually before Us is even worse. No
one knows what changes in the fundamental principles
of the constitution the Convention will be minded to
approve. To be more specific, we do not have any means
of foreseeing whether the right to vote would be of any
significant value at all. Who can say whether or not later
on the Convention may decide to provide for varying
types of voters for each level of the political units it may
divide the country into. The root of the difficulty in
other words, lies in that the Convention is precisely on
the verge of introducing substantial changes, if not
radical ones, in almost every part and aspect of the
existing social and political order enshrined in the
present Constitution. How can a voter in the proposed
plebiscite intelligently determine the effect of the
reduction of the voting age upon the different
institutions which the Convention may establish and of
which presently he is not given any idea?
We are certain no one can deny that in order that a
plebiscite for the ratification of an amendment to the
Constitution may be validly held, it must provide the
voter not only sufficient time but ample basis for an
intelligent appraisal of the nature of the amendment per
se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious
whole. In the context of the present state of things,
where the Convention has hardly started considering
the merits of hundreds, if not thousands, of proposals to
amend the existing Constitution, to present to the
people any single proposal or a few of them cannot
comply with this requirement. We are of the opinion
that the present Constitution does not contemplate in
Section 1 of Article XV a plebiscite or "election" wherein
the people are in the dark as to frame of reference they
can base their judgment on. We reject the
rationalization that the present Constitution is a
possible frame of reference, for the simple reason that
intervenors themselves are stating that the sole purpose
of the proposed amendment is to enable the eighteen
year olds to take part in the election for the ratification
of the Constitution to be drafted by the Convention. In
brief, under the proposed plebiscite, there can be, in the
language of Justice Sanchez, speaking for the six
members of the Court in Gonzales, supra, "no proper
submission".
III
The Court has no desire at all to hamper and hamstring
the noble work of the Constitutional Convention. Much
less does the Court want to pass judgment on the merits
of the proposal to allow these eighteen years old to vote.
But like the Convention, the Court has its own duties to
the people under the Constitution which is to decide in
appropriate cases with appropriate parties Whether or
not the mandates of the fundamental law are being
complied with. In the best light God has given Us, we are
of the conviction that in providing for the questioned
plebiscite before it has finished, and separately from,
the whole draft of the constitution it has been called to
formulate, the Convention's Organic
Resolution No. 1 and all subsequent acts of the
Convention implementing the same violate the
condition in Section 1, Article XV that there should only
be one "election" or plebiscite for the ratification of all
the amendments the Convention may propose. We are
not denying any right of the people to vote on the
proposed amendment; We are only holding that under
Section 1, Article XV of the Constitution, the same
should be submitted to them not separately from but
together with all the other amendments to be proposed
by this present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is
granted. Organic Resolution No. 1 of the Constitutional
Convention of 1971 and the implementing acts and
resolutions of the Convention, insofar as they provide
for the holding of a plebiscite on November 8, 1971, as
well as the resolution of the respondent Comelec
complying therewith (RR Resolution No. 695) are
hereby declared null and void. The respondents
Comelec, Disbursing Officer, Chief Accountant and
Auditor of the Constitutional Convention are hereby
enjoined from taking any action in compliance with the
143
said organic resolution. In view of the peculiar
circumstances of this case, the Court declares this
decision immediately executory. No cost
LEGISLATIVE STANDING
G.R. No. 127685 July 23, 1998
BLAS F. OPLE, petitioner,
vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR
VILLANUEVA, CIELITO HABITO, ROBERT BARBERS,
CARMENCITA REODICA, CESAR SARINO, RENATO
VALENCIA, TOMAS P. AFRICA, HEAD OF THE
NATIONAL COMPUTER CENTER and CHAIRMAN OF
THE COMMISSION ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part
of Senator Blas F. Ople to prevent the shrinking of the
right to privacy, which the revered Mr. Justice Brandeis
considered as "the most comprehensive of rights and
the right most valued by civilized men." 1 Petitioner Ople
prays that we invalidate Administrative Order No. 308
entitled "Adoption of a National Computerized
Identification Reference System" on two important
constitutional grounds, viz: one, it is a usurpation of the
power of Congress to legislate, and two, it
impermissibly intrudes on our citizenry's protected
zone of privacy. We grant the petition for the rights
sought to be vindicated by the petitioner need stronger
barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos On
December 12, 1996 and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens
and foreign residents with the facility to conveniently
transact business with basic service and social security
providers and other government instrumentalities;
WHEREAS, this will require a computerized system to
properly and efficiently identify persons seeking basic
services on social security and reduce, if not totally
eradicate fraudulent transactions and
misrepresentations;
WHEREAS, a concerted and collaborative effort among
the various basic services and social security providing
agencies and other government intrumentalities is
required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the
Republic of the Philippines, by virtue of the powers
vested in me by law, do hereby direct the following:
Sec. 1. Establishment of a National Compoterized
Identification Reference System. A decentralized
Identification Reference System among the key basic
services and social security providers is hereby
established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-
Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the
implementation of the System is hereby created, chaired
by the Executive Secretary, with the following as
members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local
Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center (NCC)
is hereby designated as secretariat to the IACC and as
such shall provide administrative and technical support
to the IACC.
Sec. 4. Linkage Among Agencies. The Population
Reference Number (PRN) generated by the NSO shall
serve as the common reference number to establish a
linkage among concerned agencies. The IACC Secretariat
shall coordinate with the different Social Security and
Services Agencies to establish the standards in the use
of Biometrics Technology and in computer application
designs of their respective systems.
Sec. 5. Conduct of Information Dissemination Campaign.
The Office of the Press Secretary, in coordination with
the National Statistics Office, the GSIS and SSS as lead
agencies and other concerned agencies shall undertake
a massive tri-media information dissemination
campaign to educate and raise public awareness on the
importance and use of the PRN and the Social Security
Identification Reference.
Sec. 6. Funding. The funds necessary for the
implementation of the system shall be sourced from the
respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and
SSS shall submit regular reports to the Office of the
President through the IACC, on the status of
implementation of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall take
effect immediately.
DONE in the City of Manila, this 12th day of December in
the year of Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of
general circulation on January 22, 1997 and January 23,
1997. On January 24, 1997, petitioner filed the instant
petition against respondents, then Executive Secretary
Ruben Torres and the heads of the government
agencies, who as members of the Inter-Agency
Coordinating Committee, are charged with the
implementation of A.O. No. 308. On April 8, 1997, we
issued a temporary restraining order enjoining its
implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A NATIONAL
COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE
OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE
LEGISLATIVE POWERS OF THE CONGRESS OF THE
REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE
PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO.
308 IS AN UNCONSTITUTIONAL USURPATION OF THE
EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE
PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308
INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM
WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE
AS WOULD WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE
EXECUTIVE AND ADMINISTRATIVE POWERS OF THE
PRESIDENT WITHOUT ENCROACHING ON THE
LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION
OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE
SOURCED FROM THE BUDGETS OF THE CONCERNED
AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S
INTEREST IN PRIVACY. 3
We now resolve.
144
I understandable. The blurring of the demarcation line
As is usual in constitutional litigation, respondents raise
the threshold issues relating to the standing to sue of
the petitioner and the justiciability of the case at bar.
More specifically, respondents aver that petitioner has
no legal interest to uphold and that the implementing
rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear.
Petitioner Ople is a distinguished member of our Senate.
As a Senator, petitioner is possessed of the requisite
standing to bring suit raising the issue that the issuance
of A.O. No. 308 is a usurpation of legislative power. 4 As
taxpayer and member of the Government Service
Insurance System (GSIS), petitioner can also impugn the
legality of the misalignment of public funds and the
misuse of GSIS funds to implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is
not affected by the fact that the implementing rules of
A.O. No. 308 have yet to be promulgated. Petitioner Ople
assails A.O. No. 308 as invalid per se and as infirmed on
its face. His action is not premature for the rules yet to
be promulgated cannot cure its fatal defects. Moreover,
the respondents themselves have started the
implementation of A.O. No. 308 without waiting for the
rules. As early as January 19, 1997, respondent Social
Security System (SSS) caused the publication of a notice
to bid for the manufacture of the National Identification
(ID) card. 6 Respondent Executive Secretary Torres has
publicly announced that representatives from the GSIS
and the SSS have completed the guidelines for the
national identification system. 7 All signals from the
respondents show their unswerving will to implement
A.O. No. 308 and we need not wait for the formality of
the rules to pass judgment on its constitutionality. In
this light, the dissenters insistence that we tighten the
rule on standing is not a commendable stance as its
result would be to throttle an important constitutional
principle and a fundamental right.
II
We now come to the core issues. Petitioner claims that
A.O. No. 308 is not a mere administrative order but a
law and hence, beyond the power of the President to
issue. He alleges that A.O. No. 308 establishes a system
of identification that is all-encompassing in scope,
affects the life and liberty of every Filipino citizen and
foreign resident, and more particularly, violates their
right to privacy.
Petitioner's sedulous concern for the Executive not to
trespass on the lawmaking domain of Congress is
between the power of the Legislature to make laws and
the power of the Executive to execute laws will disturb
their delicate balance of power and cannot be allowed.
Hence, the exercise by one branch of government of
power belonging to another will be given a stricter
scrutiny by this Court.
The line that delineates Legislative and Executive power
is not indistinct. Legislative power is "the authority,
under the Constitution, to make laws, and to alter and
repeal them." 8 The Constitution, as the will of the
people in their original, sovereign and unlimited
capacity, has vested this power in the Congress of the
Philippines. 9 The grant of legislative power to Congress
is broad, general and comprehensive. 10 The legislative
body possesses plenary power for all purposes of civil
government. 11 Any power, deemed to be legislative by
usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it
elsewhere. 12 In fine, except as limited by the
Constitution, either expressly or impliedly, legislative
power embraces all subjects and extends to matters of
general concern or common interest. 13
While Congress is vested with the power to enact laws,
the President executes the laws. 14 The executive power
is vested in the Presidents. 15 It is generally defined as
the power to enforce and administer the laws. 16 It is the
power of carrying the laws into practical operation and
enforcing their due observance. 17
As head of the Executive Department, the President is
the Chief Executive. He represents the government as a
whole and sees to it that all laws are enforced by the
officials and employees of his department. 18 He has
control over the executive department, bureaus and
offices. This means that he has the authority to assume
directly the functions of the executive department,
bureau and office or interfere with the discretion of its
officials. 19 Corollary to the power of control, the
President also has the duty of supervising the
enforcement of laws for the maintenance of general
peace and public order. Thus, he is granted
administrative power over bureaus and offices under
his control to enable him to discharge his duties
effectively. 20
Administrative power is concerned with the work of
applying policies and enforcing orders as determined by
proper governmental organs. 21 It enables the President
to fix a uniform standard of administrative efficiency
and check the official conduct of his agents. 22 To this
end, he can issue administrative orders, rules and
regulations.
Prescinding from these precepts, we hold that A.O. No.
308 involves a subject that is not appropriate to be
covered by an administrative order. An administrative
order is:
Sec. 3. Administrative Orders. — Acts of the President
which relate to particular aspects of governmental
operation in pursuance of his duties as administrative
head shall be promulgated in administrative orders. 23
An administrative order is an ordinance issued by the
President which relates to specific aspects in the
administrative operation of government. It must be in
harmony with the law and should be for the sole
purpose of implementing the law and carrying out the
legislative policy. 24 We reject the argument that A.O. No.
308 implements the legislative policy of the
Administrative Code of 1987. The Code is a general law
and "incorporates in a unified document the major
structural, functional and procedural principles of
governance." 25 and "embodies changes in
administrative structure and procedures designed to
serve the
people." 26 The Code is divided into seven (7) Books:
Book I deals with Sovereignty and General
Administration, Book II with the Distribution of Powers
of the three branches of Government, Book III on the
Office of the President, Book IV on the Executive Branch,
Book V on Constitutional Commissions, Book VI on
National Government Budgeting, and Book VII on
Administrative Procedure. These Books contain
provisions on the organization, powers and general
administration of the executive, legislative and judicial
branches of government, the organization and
administration of departments, bureaus and offices
under the executive branch, the organization and
functions of the Constitutional Commissions and other
constitutional bodies, the rules on the national
government budget, as well as guideline for the exercise
by administrative agencies of quasi-legislative and
quasi-judicial powers. The Code covers both the internal
administration of government, i.e, internal organization,
personnel and recruitment, supervision and discipline,
and the effects of the functions performed by
administrative officials on private individuals or parties
outside government. 27
It cannot be simplistically argued that A.O. No. 308
merely implements the Administrative Code of 1987. It
establishes for the first time a National Computerized
145
Identification Reference System. Such a System requires
a delicate adjustment of various contending state
policies — the primacy of national security, the extent of
privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the
dissent of Mr. Justice Mendoza states that the A.O. No.
308 involves the all-important freedom of thought. As
said administrative order redefines the parameters of
some basic rights of our citizenry vis-a-vis the State as
well as the line that separates the administrative power
of the President to make rules and the legislative power
of Congress, it ought to be evident that it deals with a
subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.D.
No. 308 is not a law because it confers no right, imposes
no duty, affords no proctection, and creates no office.
Under A.O. No. 308, a citizen cannot transact business
with government agencies delivering basic services to
the people without the contemplated identification card.
No citizen will refuse to get this identification card for
no one can avoid dealing with government. It is thus
clear as daylight that without the ID, a citizen will have
difficulty exercising his rights and enjoying his
privileges. Given this reality, the contention that A.O. No.
308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly
expand the limits of administrative legislation and
consequently erodes the plenary power of Congress to
make laws. This is contrary to the established approach
defining the traditional limits of administrative
legislation. As well stated by Fisher: ". . . Many
regulations however, bear directly on the public. It is
here that administrative legislation must he restricted
in its scope and application. Regulations are not
supposed to be a substitute for the general policy-
making that Congress enacts in the form of a public law.
Although administrative regulations are entitled to
respect, the authority to prescribe rules and regulations
is not an independent source of power to make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the
subject of a law, still it cannot pass constitutional
muster as an administrative legislation because facially
it violates the right to privacy. The essence of privacy is
the "right to be let alone." 29 In the 1965 case of
Griswold v. Connecticut, 30 the United States Supreme
Court gave more substance to the right of privacy when
it ruled that the right has a constitutional foundation. It
held that there is a right of privacy which can be found
within the penumbras of the First, Third, Fourth, Fifth
and Ninth Amendments, 31 viz:
Specific guarantees in the Bill of Rights have penumbras
formed by emanations from these guarantees that help
give them life and substance . . . various guarantees
create zones of privacy. The right of association
contained in the penumbra of the First Amendment is
one, as we have seen. The Third Amendment in its
prohibition against the quartering of soldiers "in any
house" in time of peace without the consent of the
owner is another facet of that privacy. The Fourth
Amendment explicitly affirms the ''right of the people to
be secure in their persons, houses and effects, against
unreasonable searches and seizures." The Fifth
Amendment in its Self-Incrimination Clause enables the
citizen to create a zone of privacy which government
may not force him to surrender to his detriment. The
Ninth Amendment provides: "The enumeration in the
Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people."
In the 1968 case of Morfe v. Mutuc, 32 we adopted the
Griswold ruling that there is a constitutional right to
privacy. Speaking thru Mr. Justice, later Chief Justice,
Enrique Fernando, we held:
xxx xxx xxx
The Griswold case invalidated a Connecticut statute
which made the use of contraceptives a criminal offence
on the ground of its amounting to an unconstitutional
invasion of the right of privacy of married persons;
rightfully it stressed "a relationship lying within the
zone of privacy created by several fundamental
constitutional guarantees." It has wider implications
though. The constitutional right to privacy has come
into its own.
So it is likewise in our jurisdiction. The right to privacy
as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving
of constitutional protection. The language of Prof.
Emerson is particularly apt: "The concept of limited
government has always included the idea that
governmental powers stop short of certain intrusions
into the personal life of the citizen. This is indeed one of
the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the
absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs
to the individual, firmly distinguishing it from the public
sector, which the state can control. Protection of this
private sector — protection, in other words, of the
dignity and integrity of the individual — has become
increasingly important as modern society has
developed. All the forces of a technological age —
industrialization, urbanization, and organization —
operate to narrow the area of privacy and facilitate
intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks
the difference between a democratic and a totalitarian
society."
Indeed, if we extend our judicial gaze we will find that
the right of privacy is recognized and enshrined in
several provisions of our Constitution. 33 It is expressly
recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order
requires otherwise as prescribed by law.
Other facets of the right to privacy are protectad in
various provisions of the Bill of Rights, viz: 34
Sec. 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.
Sec. 2. 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 shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or things to be seized.
xxx xxx xxx
Sec. 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.
xxx xxx xxx
Sec. 8. The right of the people, including those employed
in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to
law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness
against himself.
Zones of privacy are likewise recognized and protected
in our laws. The Civil Code provides that "[e]very person
146
shall respect the dignity, personality, privacy and peace
of mind of his neighbors and other persons" and
punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. 35 It
also holds a public officer or employee or any private
individual liable for damages for any violation of the
rights and liberties of another person, 36 and recognizes
the privacy of letters and other private
communications. 37 The Revised Penal Code makes a
crime the violation of secrets by an officer, 38 the
revelation of trade and industrial secrets, 39 and trespass
to dwelling. 40Invasion of privacy is an offense in special
laws like the Anti-Wiretapping Law, 41 the Secrecy of
Bank Deposits Act 42 and the Intellectual Property
Code. 43 The Rules of Court on privileged
communication likewise recognize the privacy of certain
information. 44
Unlike the dissenters, we prescind from the premise
that the right to privacy is a fundamental right
guaranteed by the Constitution, hence, it is the burden
of government to show that A.O. No. 308 is justified by
some compelling state interest and that it is narrowly
drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provides our citizens
and foreigners with the facility to conveniently transact
business with basic service and social security
providers and other government instrumentalities and
(2) the need to reduce, if not totally eradicate,
fraudulent transactions and misrepresentations by
persons seeking basic services. It is debatable whether
these interests are compelling enough to warrant the
issuance of A.O. No. 308. But what is not arguable is the
broadness, the vagueness, the overbreadth of A.O. No.
308 which if implemented will put our people's right to
privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which
provides for a Population Reference Number (PRN) as a
"common reference number to establish a linkage
among concerned agencies" through the use of
"Biometrics Technology" and "computer application
designs."
Biometry or biometrics is "the science of the applicatin
of statistical methods to biological facts; a mathematical
analysis of biological data." 45 The term "biometrics" has
evolved into a broad category of technologies which
provide precise confirmation of an individual's identity
through the use of the individual's own physiological
and behavioral characteristics. 46 A physiological
characteristic is a relatively stable physical
characteristic such as a fingerprint, retinal scan, hand
geometry or facial features. A behavioral characteristic
is influenced by the individual's personality and
includes voice print, signature and keystroke. 47 Most
biometric idenfication systems use a card or personal
identificatin number (PIN) for initial identification. The
biometric measurement is used to verify that the
individual holding the card or entering the PIN is the
legitimate owner of the card or PIN. 48
A most common form of biological encoding is finger-
scanning where technology scans a fingertip and turns
the unique pattern therein into an individual number
which is called a biocrypt. The biocrypt is stored in
computer data banks 49 and becomes a means of
identifying an individual using a service. This
technology requires one's fingertip to be scanned every
time service or access is provided. 50 Another method is
the retinal scan. Retinal scan technology employs optical
technology to map the capillary pattern of the retina of
the eye. This technology produces a unique print similar
to a finger print. 51 Another biometric method is known
as the "artificial nose." This device chemically analyzes
the unique combination of substances excreted from the
skin of people. 52 The latest on the list of biometric
achievements is the thermogram. Scientists have found
that by taking pictures of a face using infra-red cameras,
a unique heat distribution pattern is seen. The different
densities of bone, skin, fat and blood vessels all
contribute to the individual's personal "heat
signature." 53
In the last few decades, technology has progressed at a
galloping rate. Some science fictions are now science
facts. Today, biometrics is no longer limited to the use of
fingerprint to identify an individual. It is a new science
that uses various technologies in encoding any and all
biological characteristics of an individual for
identification. It is noteworthy that A.O. No. 308 does
not state what specific biological characteristics and
what particular biometrics technology shall be used to
identify people who will seek its coverage. Considering
the banquest of options available to the implementors
of A.O. No. 308, the fear that it threatens the right to
privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further
look will show that it does not state whether encoding
of data is limited to biological information alone for
identification purposes. In fact, the Solicitor General
claims that the adoption of the Identification Reference
System will contribute to the "generation of population
data for development planning." 54 This is an admission
that the PRN will not be used solely for identification
but the generation of other data with remote relation to
the avowed purposes of A.O. No. 308. Clearly, the
indefiniteness of A.O. No. 308 can give the government
the roving authority to store and retrieve information
for a purpose other than the identification of the
individual through his PRN.
The potential for misuse of the data to be gathered
under A.O. No. 308 cannot be undarplayed as the
dissenters do. Pursuant to said administrative order, an
individual must present his PRN everytime he deals
with a government agency to avail of basic services and
security. His transactions with the government agency
will necessarily be recorded — whether it be in the
computer or in the documentary file of the agency. The
individual's file may include his transactions for loan
availments, income tax returns, statement of assets and
liabilities, reimbursements for medication,
hospitalization, etc. The more frequent the use of the
PRN, the better the chance of building a huge
formidable informatin base through the electronic
linkage of the files. 55 The data may be gathered for
gainful and useful government purposes; but the
existence of this vast reservoir of personal information
constitutes a covert invitation to misuse, a temptation
that may be too great for some of our authorities to
resist. 56
We can even grant, arguendo, that the computer data
file will be limited to the name, address and other basic
personal infomation about the individual. 57 Even that
hospitable assumption will not save A.O. No. 308 from
constitutional infirmity for again said order does not tell
us in clear and categorical terms how these information
gathered shall he handled. It does not provide who shall
control and access the data, under what circumstances
and for what purpose. These factors are essential to
safeguard the privacy and guaranty the integrity of the
information. 58 Well to note, the computer linkage gives
other government agencies access to the information.
Yet, there are no controls to guard against leakage of
information. When the access code of the control
programs of the particular computer system is broken,
an intruder, without fear of sanction or penalty, can
make use of the data for whatever purpose, or worse,
manipulate the data stored within the system. 59
It is plain and we hold that A.O. No. 308 falls short of
assuring that personal information which will be
gathered about our people will only be processed for
147
unequivocally specified purposes. 60 The lack of proper
safeguards in this regard of A.O. No. 308 may interfere
with the individual's liberty of abode and travel by
enabling authorities to track down his movement; it
may also enable unscrupulous persons to access
confidential information and circumvent the right
against self-incrimination; it may pave the way for
"fishing expeditions" by government authorities and
evade the right against unreasonable searches and
seizures. 61 The possibilities of abuse and misuse of the
PRN, biometrics and computer technology are
accentuated when we consider that the individual lacks
control over what can be read or placed on his ID, much
less verify the correctness of the data encoded. 62 They
threaten the very abuses that the Bill of Rights seeks to
prevent. 63
The ability of sophisticated data center to generate a
comprehensive cradle-to-grave dossier on an individual
and transmit it over a national network is one of the
most graphic threats of the computer revolution. 64 The
computer is capable of producing a comprehensive
dossier on individuals out of information given at
different times and for varied purposes. 65 It can
continue adding to the stored data and keeping the
information up to date. Retrieval of stored date is
simple. When information of a privileged character
finds its way into the computer, it can be extracted
together with other data on the subject. 66 Once
extracted, the information is putty in the hands of any
person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly
drawn, the dissenting opinions would dismiss its danger
to the right to privacy as speculative and hypothetical.
Again, we cannot countenance such a laidback posture.
The Court will not be true to its role as the ultimate
guardian of the people's liberty if it would not
immediately smother the sparks that endanger their
rights but would rather wait for the fire that could
consume them.
We reject the argument of the Solicitor General that an
individual has a reasonable expectation of privacy with
regard to the Natioal ID and the use of biometrics
technology as it stands on quicksand. The
reasonableness of a person's expectation of privacy
depends on a two-part test: (1) whether by his conduct,
the individual has exhibited an expectation of privacy;
and (2) whether this expectation is one that society
recognizes as reasonable. 67 The factual circumstances
of the case determines the reasonableness of the
expectation. 68 However, other factors, such as customs,
physical surroundings and practices of a particular
activity, may serve to create or diminish this
expectation. 69 The use of biometrics and computer
technology in A.O. No. 308 does not assure the
individual of a reasonable expectation of privacy. 70 As
technology advances, the level of reasonably expected
privacy decreases. 71 The measure of protection granted
by the reasonable expectation diminishes as relevant
technology becomes more widely accepted. 72 The
security of the computer data file depends not only on
the physical inaccessibility of the file but also on the
advances in hardware and software computer
technology. A.O. No. 308 is so widely drawn that a
minimum standard for a reasonable expectation of
privacy, regardless of technology used, cannot be
inferred from its provisions.
The rules and regulations to be by the IACC cannot
remedy this fatal defect. Rules and regulations merely
implement the policy of the law or order. On its face,
A.O. No. gives the IACC virtually infettered discretion to
determine the metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards
for a reasonable expectation of privacy. Commonwealth
Act. No. 591 penalizes the disclosure by any person of
data furnished by the individual to the NSO with
imprisonment and fine. 73 Republic Act. No. 1161
prohibits public disclosure of SSS employment records
and reports. 74 These laws, however, apply to records
and data with the NSO and the SSS. It is not clear
whether they may be applied to data with the other
government agencies forming part of the National ID
System. The need to clarify the penal aspect of A.O. No.
308 is another reason why its enactment should be
given to Congress.
Next, the Solicitor General urges us to validate A.O. No.
308's abridgment of the right of privacy by using the
rational relationship test. 75 He stressed that the
purposes of A.O. No. 308 are: (1) to streamline and
speed up the implementation of basic government
services, (2) eradicate fraud by avoiding duplication of
services, and (3) generate population data for
development planning. He cocludes that these purposes
justify the incursions into the right to privacy for the
means are rationally related to the end. 76
We are not impressed by the argument. In Morfe v.
Mutuc, 77 we upheld the constitutionality of R.A. 3019,
the Anti-Graft and Corrupt Practices Act, as a valid
police power measure. We declared that the law, in
compelling a public officer to make an annual report
disclosing his assets and liabilities, his sources of
income and expenses, did not infringe on the
individual's right to privacy. The law was enacted to
promote morality in public administration by curtailing
and minimizing the opportunities for official corruption
and maintaining a standard of honesty in the public
service. 78
The same circumstances do not obtain in the case at bar.
For one, R.A. 3019 is a statute, not an administrative
order. Secondly, R.A. 3019 itself is sufficiently detailed.
The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses.
IN the case at bar, A.O. No. 308 may have been impelled
by a worthy purpose, but, it cannot pass constitutional
scrutiny for it is not narrowly drawn. And we now hod
that when the integrity of a fundamental right is at
stake, this court will give the challenged law,
administrative order, rule or regulation a stricter
scrutiny. It will not do for the authorities to invoke the
presumption of regularity in the performance of official
duties. Nor is it enough for the authorities to prove that
their act is not irrational for a basic right can be
diminished, if not defeated, even when the government
does not act irrationally. They must satisfactorily show
the presence of compelling state interests and that the
law, rule or regulation is narrowly drawn to preclude
abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to protect
human rights and to prevent authoritarianism. In case
of doubt, the least we can do is to lean towards the
stance that will not put in danger the rights protected by
the Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor
General is also off-line. In Whalen, the United States
Supreme Court was presented with the question of
whether the State of New York could keep a centralized
computer record of the names and addresses of all
persons who obtained certain drugs pursuant to a
doctor's prescription. The New York State Controlled
Substance Act of 1972 required physicians to identify
parties obtaining prescription drugs enumerated in the
statute, i.e., drugs with a recognized medical use but
with a potential for abuse, so that the names and
addresses of the patients can be recorded in a
centralized computer file of the State Department of
Health. The plaintiffs, who were patients and doctors,
claimed that some people might decline necessary
medication because of their fear that the computerized
148
data may be readily available and open to public
disclosure; and that once disclosed, it may stigmatize
them as drug addicts. 80 The plaintiffs alleged that the
statute invaded a constitutionally protected zone of
privacy, i.e., the individual interest in avoiding disclosure
of personal matters, and the interest in independence in
making certain kinds of important decisions. The U.S.
Supreme Court held that while an individual's interest
in avoiding disclosuer of personal matter is an aspect of
the right to privacy, the statute did not pose a grievous
threat to establish a constitutional violation. The Court
found that the statute was necessary to aid in the
enforcement of laws designed to minimize the misuse of
dangerous drugs. The patient-identification
requirement was a product of an orderly and rational
legislative decision made upon recommmendation by a
specially appointed commission which held extensive
hearings on the matter. Moreover, the statute was
narrowly drawn and contained numerous safeguards
against indiscriminate disclosure. The statute laid down
the procedure and requirements for the gathering,
storage and retrieval of the informatin. It ebumerated
who were authorized to access the data. It also
prohibited public disclosure of the data by imposing
penalties for its violation. In view of these safeguards,
the infringement of the patients' right to privacy was
justified by a valid exercise of police power. As we
discussed above, A.O. No. 308 lacks these vital
safeguards.
Even while we strike down A.O. No. 308, we spell out in
neon that the Court is not per se agains the use of
computers to accumulate, store, process, retvieve and
transmit data to improve our bureaucracy. Computers
work wonders to achieve the efficiency which both
government and private industry seek. Many
information system in different countries make use of
the computer to facilitate important social objective,
such as better law enforcement, faster delivery of public
services, more efficient management of credit and
insurance programs, improvement of
telecommunications and streamlining of financial
activities. 81 Used wisely, data stored in the computer
could help good administration by making accurate and
comprehensive information for those who have to frame
policy and make key decisions. 82 The benefits of the
computer has revolutionized information technology. It
developed the internet, 83 introduced the concept of
cyberspace 84 and the information superhighway where
the individual, armed only with his personal computer,
may surf and search all kinds and classes of information
from libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right
to privacy does not bar all incursions into individual
privacy. The right is not intended to stifle scientific and
technological advancements that enhance public service
and the common good. It merely requires that the law
be narrowly focused 85 and a compelling interest justify
such intrusions.86 Intrusions into the right must be
accompanied by proper safeguards and well-defined
standards to prevent unconstitutional invasions. We
reiterate that any law or order that invades individual
privacy will be subjected by this Court to strict scrutiny.
The reason for this stance was laid down in Morfe v.
Mutuc, to wit:
The concept of limited government has always included
the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is
indeed one of the basic disctinctions between absolute
and limited government. Ultimate and pervasive control
of the individual, in all aspects of his life, is the hallmark
of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs
to the individual, firmly distinguishing it from the public
sector, which the state can control. Protection of this
private sector — protection, in other words, of the
dignity and integrity of the individual — has become
increasingly important as modern society has
developed. All the forces of a technological age —
industrialization, urbanization, and organization —
operate to narrow the area of privacy and facilitate
intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks
the difference between a democratic and a totalitarian
society. 87
IV
The right to privacy is one of the most threatened rights
of man living in a mass society. The threats emanate
from various sources — governments, journalists,
employers, social scientists, etc. 88 In th case at bar, the
threat comes from the executive branch of government
which by issuing A.O. No. 308 pressures the people to
surrender their privacy by giving information about
themselves on the pretext that it will facilitate delivery
of basic services. Given the record-keeping power of the
computer, only the indifferent fail to perceive the danger
that A.O. No. 308 gives the government the power to
compile a devastating dossier against unsuspecting
citizens. It is timely to take note of the well-worded
warning of Kalvin, Jr., "the disturbing result could be
that everyone will live burdened by an unerasable
record of his past and his limitations. In a way, the
threat is that because of its record-keeping, the society
will have lost its benign capacity to forget." 89 Oblivious
to this counsel, the dissents still say we should not be
too quick in labelling the right to privacy as a
fundamental right. We close with the statement that the
right to privacy was not engraved in our Constitution for
flattery.
IN VIEW WHEREOF, the petition is granted and
Adminisrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference System"
declared null and void for being unconstitutional.
SO ORDERED.
GOVERNMENT STANDING
G.R. No. L-45685 November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and
HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of
Manila, and MARIANO CU UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz
for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and
Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte,
and Gibbs and McDonough for respondent Cu Unjieng.
No appearance for respondent Judge.
LAUREL, J.:
This is an original action instituted in this court on
August 19, 1937, for the issuance of the writ
of certiorari and of prohibition to the Court of First
Instance of Manila so that this court may review the
actuations of the aforesaid Court of First Instance in
criminal case No. 42649 entitled "The People of the
Philippine Islands vs. Mariano Cu Unjieng, et al.", more
particularly the application of the defendant Mariano Cu
Unjieng therein for probation under the provisions of
Act No. 4221, and thereafter prohibit the said Court of
First Instance from taking any further action or
entertaining further the aforementioned application for
probation, to the end that the defendant Mariano Cu
Unjieng may be forthwith committed to prison in
149
accordance with the final judgment of conviction
rendered by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the
Hongkong and Shanghai Banking Corporation, are
respectively the plaintiff and the offended party, and the
respondent herein Mariano Cu Unjieng is one of the
defendants, in the criminal case entitled "The People of
the Philippine Islands vs. Mariano Cu Unjieng, et al.",
criminal case No. 42649 of the Court of First Instance of
Manila and G.R. No. 41200 of this court. Respondent
herein, Hon. Jose O. Vera, is the Judge ad interim of the
seventh branch of the Court of First Instance of Manila,
who heard the application of the defendant Mariano Cu
Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed
with the Court of First Instance of Manila on October 15,
1931, petitioner herein Hongkong and Shanghai
Banking Corporation intervening in the case as private
prosecutor. After a protracted trial unparalleled in the
annals of Philippine jurisprudence both in the length of
time spent by the court as well as in the volume in the
testimony and the bulk of the exhibits presented, the
Court of First Instance of Manila, on January 8, 1934,
rendered a judgment of conviction sentencing the
defendant Mariano Cu Unjieng to indeterminate penalty
ranging from four years and two months of prision
correccional to eight years of prision mayor, to pay the
costs and with reservation of civil action to the offended
party, the Hongkong and Shanghai Banking Corporation.
Upon appeal, the court, on March 26, 1935, modified the
sentence to an indeterminate penalty of from five years
and six months of prision correccional to seven years, six
months and twenty-seven days of prision mayor, but
affirmed the judgment in all other respects.
Mariano Cu Unjieng filed a motion for reconsideration
and four successive motions for new trial which were
denied on December 17, 1935, and final judgment was
accordingly entered on December 18, 1935. The
defendant thereupon sought to have the case elevated
on certiorari to the Supreme Court of the United States
but the latter denied the petition for certiorari in
November, 1936. This court, on November 24,
1936, denied the petition subsequently filed by the
defendant for leave to file a second alternative motion
for reconsideration or new trial and thereafter
remanded the case to the court of origin for execution of
the judgment.
The instant proceedings have to do with the application
for probation filed by the herein respondent Mariano Cu
Unjieng on November 27, 1936, before the trial
court, under the provisions of Act No. 4221 of the
defunct Philippine Legislature. Herein respondent
Mariano Cu Unjieng states in his petition, inter alia, that
he is innocent of the crime of which he was convicted,
that he has no criminal record and that he would
observe good conduct in the future. The Court of First
Instance of Manila, Judge Pedro Tuason presiding,
referred the application for probation of the Insular
Probation Office which recommended denial of the
same June 18, 1937. Thereafter, the Court of First
Instance of Manila, seventh branch, Judge Jose O. Vera
presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an
opposition to the granting of probation to the herein
respondent Mariano Cu Unjieng. The private
prosecution also filed an opposition on April 5, 1937,
alleging, among other things, that Act No. 4221,
assuming that it has not been repealed by section 2 of
Article XV of the Constitution, is nevertheless violative
of section 1, subsection (1), Article III of the
Constitution guaranteeing equal protection of the laws
for the reason that its applicability is not uniform
throughout the Islands and because section 11 of the
said Act endows the provincial boards with the power to
make said law effective or otherwise in their respective
or otherwise in their respective provinces. The private
prosecution also filed a supplementary opposition on
April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue
delegation of legislative power to the provincial boards
of several provinces (sec. 1, Art. VI, Constitution). The
City Fiscal concurred in the opposition of the private
prosecution except with respect to the questions raised
concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera
promulgated a resolution with a finding that "las
pruebas no han establecido de unamanera concluyente
la culpabilidad del peticionario y que todos los hechos
probados no son inconsistentes o incongrentes con su
inocencia" and concludes that the herein respondent
Mariano Cu Unjieng "es inocente por duda racional" of
the crime of which he stands convicted by this court in
G.R. No. 41200, but denying the latter's petition for
probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por
las circunstancias y la historia social que se han
expuesto en el cuerpo de esta resolucion, que hacen al
peticionario acreedor de la misma, una parte de la
opinion publica, atizada por los recelos y las suspicacias,
podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos
ordinarios de una causa criminal perturbando la
quietud y la eficacia de las decisiones ya recaidas al
traer a la superficie conclusiones enteramente
differentes, en menoscabo del interes publico que
demanda el respeto de las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent
Mariano Cu Unjieng filed an exception to the resolution
denying probation and a notice of intention to file a
motion for reconsideration. An alternative motion for
reconsideration or new trial was filed by counsel on July
13, 1937. This was supplemented by an additional
motion for reconsideration submitted on July 14, 1937.
The aforesaid motions were set for hearing on July 31,
1937, but said hearing was postponed at the petition of
counsel for the respondent Mariano Cu Unjieng because
a motion for leave to intervene in the case as amici
curiae signed by thirty-three (thirty-four) attorneys had
just been filed with the trial court. Attorney Eulalio
Chaves whose signature appears in the aforesaid motion
subsequently filed a petition for leave to withdraw his
appearance as amicus curiae on the ground that the
motion for leave to intervene as amici curiae was
circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he
signed the same "without mature deliberation and
purely as a matter of courtesy to the person who invited
me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a
motion with the trial court for the issuance of an order
of execution of the judgment of this court in said case
and forthwith to commit the herein respondent Mariano
Cu Unjieng to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its
opposition to the motion for leave to intervene as amici
curiaeaforementioned, asking that a date be set for a
hearing of the same and that, at all events, said motion
should be denied with respect to certain attorneys
signing the same who were members of the legal staff of
the several counsel for Mariano Cu Unjieng. On August
10, 1937, herein respondent Judge Jose O. Vera issued
an order requiring all parties including the movants for
intervention as amici curiae to appear before the court
on August 14, 1937. On the last-mentioned date, the
Fiscal of the City of Manila moved for the hearing of his
motion for execution of judgment in preference to the
motion for leave to intervene as amici curiae but, upon
150
objection of counsel for Mariano Cu Unjieng, he moved
for the postponement of the hearing of both motions.
The respondent judge thereupon set the hearing of the
motion for execution on August 21, 1937, but proceeded
to consider the motion for leave to intervene as amici
curiae as in order. Evidence as to the circumstances
under which said motion for leave to intervene as amici
curiae was signed and submitted to court was to have
been heard on August 19, 1937. But at this juncture,
herein petitioners came to this court on extraordinary
legal process to put an end to what they alleged was an
interminable proceeding in the Court of First Instance of
Manila which fostered "the campaign of the defendant
Mariano Cu Unjieng for delay in the execution of the
sentence imposed by this Honorable Court on him,
exposing the courts to criticism and ridicule because of
the apparent inability of the judicial machinery to make
effective a final judgment of this court imposed on the
defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was
accordingly suspended upon the issuance of a
temporary restraining order by this court on August 21,
1937.
To support their petition for the issuance of the
extraordinary writs of certiorari and prohibition, herein
petitioners allege that the respondent judge has acted
without jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to
place respondent Mariano Cu Unjieng under probation
for the following reason:
(1) Under section 11 of Act No. 4221, the said of the
Philippine Legislature is made to apply only to the
provinces of the Philippines; it nowhere states that it is
to be made applicable to chartered cities like the City of
Manila.
(2) While section 37 of the Administrative Code
contains a proviso to the effect that in the absence of a
special provision, the term "province" may be construed
to include the City of Manila for the purpose of giving
effect to laws of general application, it is also true that
Act No. 4221 is not a law of general application because
it is made to apply only to those provinces in which the
respective provincial boards shall have provided for the
salary of a probation officer.
(3) Even if the City of Manila were considered to be a
province, still, Act No. 4221 would not be applicable to it
because it has provided for the salary of a probation
officer as required by section 11 thereof; it being
immaterial that there is an Insular Probation Officer
willing to act for the City of Manila, said Probation
Officer provided for in section 10 of Act No. 4221 being
different and distinct from the Probation Officer
provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had
jurisdiction to entertain the application for probation of
the respondent Mariano Cu Unjieng, he nevertheless
acted without jurisdiction or in excess thereof in
continuing to entertain the motion for reconsideration
and by failing to commit Mariano Cu Unjieng to prison
after he had promulgated his resolution of June 28,
1937, denying Mariano Cu Unjieng's application for
probation, for the reason that:
(1) His jurisdiction and power in probation proceedings
is limited by Act No. 4221 to the granting or denying of
applications for probation.
(2) After he had issued the order denying Mariano Cu
Unjieng's petition for probation on June 28, 1937, it
became final and executory at the moment of its
rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a
rehearing of said order or to modify or change the same.
III. Because the respondent judge made a finding that
Mariano Cu Unjieng is innocent of the crime for which
he was convicted by final judgment of this court, which
finding is not only presumptuous but without
foundation in fact and in law, and is furthermore in
contempt of this court and a violation of the
respondent's oath of office as ad interim judge of first
instance.
IV. Because the respondent judge has violated and
continues to violate his duty, which became imperative
when he issued his order of June 28, 1937, denying the
application for probation, to commit his co-respondent
to jail.
Petitioners also avers that they have no other plain,
speedy and adequate remedy in the ordinary course of
law.
In a supplementary petition filed on September 9, 1937,
the petitioner Hongkong and Shanghai Banking
Corporation further contends that Act No. 4221 of the
Philippine Legislature providing for a system of
probation for persons eighteen years of age or over who
are convicted of crime, is unconstitutional because it is
violative of section 1, subsection (1), Article III, of the
Constitution of the Philippines guaranteeing equal
protection of the laws because it confers upon the
provincial board of its province the absolute discretion
to make said law operative or otherwise in their
respective provinces, because it constitutes an unlawful
and improper delegation to the provincial boards of the
several provinces of the legislative power lodged by the
Jones Law (section 8) in the Philippine Legislature and
by the Constitution (section 1, Art. VI) in the National
Assembly; and for the further reason that it gives the
provincial boards, in contravention of the Constitution
(section 2, Art. VIII) and the Jones Law (section 28), the
authority to enlarge the powers of the Court of First
Instance of different provinces without uniformity. In
another supplementary petition dated September 14,
1937, the Fiscal of the City of Manila, in behalf of one of
the petitioners, the People of the Philippine Islands,
concurs for the first time with the issues raised by other
petitioner regarding the constitutionality of Act No.
4221, and on the oral argument held on October 6,
1937, further elaborated on the theory that probation is
a form of reprieve and therefore Act. No. 4221 is an
encroachment on the exclusive power of the Chief
Executive to grant pardons and reprieves. On October 7,
1937, the City Fiscal filed two memorandums in which
he contended that Act No. 4221 not only encroaches
upon the pardoning power to the executive, but also
constitute an unwarranted delegation of legislative
power and a denial of the equal protection of the laws.
On October 9, 1937, two memorandums, signed jointly
by the City Fiscal and the Solicitor-General, acting in
behalf of the People of the Philippine Islands, and by
counsel for the petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the
state to impugn the validity of its own laws and the
other contending that Act No. 4221 constitutes an
unwarranted delegation of legislative power, were
presented. Another joint memorandum was filed by the
same persons on the same day, October 9, 1937, alleging
that Act No. 4221 is unconstitutional because it denies
the equal protection of the laws and constitutes an
unlawful delegation of legislative power and, further,
that the whole Act is void: that the Commonwealth is
not estopped from questioning the validity of its laws;
that the private prosecution may intervene in probation
proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the
constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as
well as in their oral argument and memorandums,
challenge each and every one of the foregoing
proposition raised by the petitioners.
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As special defenses, respondents allege:
(1) That the present petition does not state facts
sufficient in law to warrant the issuance of the writ
of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the
remedy sought by the petitioners is the very same
remedy prayed for by them before the trial court and
was still pending resolution before the trial court when
the present petition was filed with this court.
(3) That the petitioners having themselves raised the
question as to the execution of judgment before the trial
court, said trial court has acquired exclusive jurisdiction
to resolve the same under the theory that its resolution
denying probation is unappealable.
(4) That upon the hypothesis that this court has
concurrent jurisdiction with the Court of First Instance
to decide the question as to whether or not the
execution will lie, this court nevertheless cannot
exercise said jurisdiction while the Court of First
Instance has assumed jurisdiction over the same upon
motion of herein petitioners themselves.
(5) That upon the procedure followed by the herein
petitioners in seeking to deprive the trial court of its
jurisdiction over the case and elevate the proceedings to
this court, should not be tolerated because it impairs
the authority and dignity of the trial court which court
while sitting in the probation cases is "a court of limited
jurisdiction but of great dignity."
(6) That under the supposition that this court has
jurisdiction to resolve the question submitted to and
pending resolution by the trial court, the present action
would not lie because the resolution of the trial court
denying probation is appealable; for although the
Probation Law does not specifically provide that an
applicant for probation may appeal from a resolution of
the Court of First Instance denying probation, still it is a
general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is appealable
to the superior court.
(7) That the resolution of the trial court denying
probation of herein respondent Mariano Cu Unjieng
being appealable, the same had not become final and
executory for the reason that the said respondent had
filed an alternative motion for reconsideration and new
trial within the requisite period of fifteen days, which
motion the trial court was able to resolve in view of the
restraining order improvidently and erroneously issued
by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by
implication admitted that the resolution of the trial
court denying probation is not final and unappealable
when he presented his answer to the motion for
reconsideration and agreed to the postponement of the
hearing of the said motion.
(9) That under the supposition that the order of the trial
court denying probation is not appealable, it is
incumbent upon the accused to file an action for the
issuance of the writ ofcertiorari with mandamus, it
appearing that the trial court, although it believed that
the accused was entitled to probation, nevertheless
denied probation for fear of criticism because the
accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of
jurisdiction by the trial court could lie, it is incumbent
upon the petitioner to file a motion for reconsideration
specifying the error committed so that the trial court
could have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court
is not appealable, the trial court retains its jurisdiction
within a reasonable time to correct or modify it in
accordance with law and justice; that this power to alter
or modify an order or resolution is inherent in the
courts and may be exercise either motu proprio or upon
petition of the proper party, the petition in the latter
case taking the form of a motion for reconsideration.
(11) That on the hypothesis that the resolution of the
trial court is appealable as respondent allege, said court
cannot order execution of the same while it is on appeal,
for then the appeal would not be availing because the
doors of probation will be closed from the moment the
accused commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937,
counsel for the respondents maintain that Act No. 4221
is constitutional because, contrary to the allegations of
the petitioners, it does not constitute an undue
delegation of legislative power, does not infringe the
equal protection clause of the Constitution, and does not
encroach upon the pardoning power of the Executive. In
an additional memorandum filed on the same date,
counsel for the respondents reiterate the view that
section 11 of Act No. 4221 is free from constitutional
objections and contend, in addition, that the private
prosecution may not intervene in probation
proceedings, much less question the validity of Act No.
4221; that both the City Fiscal and the Solicitor-General
are estopped from questioning the validity of the Act;
that the validity of Act cannot be attacked for the first
time before this court; that probation in unavailable;
and that, in any event, section 11 of the Act No. 4221 is
separable from the rest of the Act. The last
memorandum for the respondent Mariano Cu Unjieng
was denied for having been filed out of time but was
admitted by resolution of this court and filed anew on
November 5, 1937. This memorandum elaborates
on some of the points raised by the respondents and
refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the
various aspects of the present case, we noted that the
court below, in passing upon the merits of the
application of the respondent Mariano Cu Unjieng and
in denying said application assumed the task not only of
considering the merits of the application, but of passing
upon the culpability of the applicant, notwithstanding
the final pronouncement of guilt by this court. (G.R. No.
41200.) Probation implies guilt be final judgment. While
a probation case may look into the circumstances
attending the commission of the offense, this does not
authorize it to reverse the findings and conclusive of
this court, either directly or indirectly, especially
wherefrom its own admission reliance was merely had
on the printed briefs, averments, and pleadings of the
parties. As already observed by this court in Shioji vs.
Harvey ([1922], 43 Phil., 333, 337), and reiterated in
subsequent cases, "if each and every Court of First
Instance could enjoy the privilege of overruling
decisions of the Supreme Court, there would be no end
to litigation, and judicial chaos would result." A
becoming modesty of inferior courts demands
conscious realization of the position that they occupy in
the interrelation and operation of the intergrated
judicial system of the nation.
After threshing carefully the multifarious issues raised
by both counsel for the petitioners and the respondents,
this court prefers to cut the Gordian knot and take up at
once the two fundamental questions presented, namely,
(1) whether or not the constitutionality of Act No. 4221
has been properly raised in these proceedings; and (2)
in the affirmative, whether or not said Act is
constitutional. Considerations of these issues will
involve a discussion of certain incidental questions
raised by the parties.
To arrive at a correct conclusion on the first question,
resort to certain guiding principles is necessary. It is a
well-settled rule that the constitutionality of an act of
the legislature will not be determined by the courts
152
unless that question is properly raised and presented
inappropriate cases and is necessary to a determination
of the case; i.e., the issue of constitutionality must be the
very lis mota presented. (McGirr vs. Hamilton and Abreu
[1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J.,
pp. 780-782, 783.)
The question of the constitutionality of an act of the
legislature is frequently raised in ordinary actions.
Nevertheless, resort may be made to extraordinary legal
remedies, particularly where the remedies in the
ordinary course of law even if available, are not plain,
speedy and adequate. Thus, in Cu Unjieng vs.
Patstone ([1922]), 42 Phil., 818), this court held that the
question of the constitutionality of a statute may be
raised by the petitioner in mandamusproceedings (see,
also, 12 C. J., p. 783); and in Government of the Philippine
Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in
Springer vs. Government of the Philippine Islands
(1928), 277 U. S., 189; 72 Law. ed., 845]), this court
declared an act of the legislature unconstitutional in an
action of quo warranto brought in the name of the
Government of the Philippines. It has also been held
that the constitutionality of a statute may be questioned
inhabeas corpus proceedings (12 C. J., p. 783; Bailey
on Habeas Corpus, Vol. I, pp. 97, 117), although there are
authorities to the contrary; on an application for
injunction to restrain action under the challenged
statute (mandatory, see Cruz vs. Youngberg [1931], 56
Phil., 234); and even on an application for preliminary
injunction where the determination of the
constitutional question is necessary to a decision of the
case. (12 C. J., p. 783.) The same may be said as
regards prohibition and certiorari.(Yu Cong Eng vs.
Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70
Law. ed., 1059; Bell vs. First Judicial District Court
[1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6
Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The
case of Yu Cong Eng vs. Trinidad, supra, decided by this
court twelve years ago was, like the present one, an
original action for certiorari and prohibition. The
constitutionality of Act No. 2972, popularly known as
the Chinese Bookkeeping Law, was there challenged by
the petitioners, and the constitutional issue was not met
squarely by the respondent in a demurrer. A point was
raised "relating to the propriety of the constitutional
question being decided in original proceedings in
prohibition." This court decided to take up the
constitutional question and, with two justices
dissenting, held that Act No. 2972 was constitutional.
The case was elevated on writ of certiorari to the
Supreme Court of the United States which reversed the
judgment of this court and held that the Act was invalid.
(271 U. S., 500; 70 Law. ed., 1059.) On the question of
jurisdiction, however, the Federal Supreme Court,
though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands,
section 516, the Philippine supreme court is granted
concurrent jurisdiction in prohibition with courts of
first instance over inferior tribunals or persons, and
original jurisdiction over courts of first instance, when
such courts are exercising functions without or in excess
of their jurisdiction. It has been held by that court that
the question of the validity of the criminal statute must
usually be raised by a defendant in the trial court and be
carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26
Phil., 192). But in this case where a new act seriously
affected numerous persons and extensive property
rights, and was likely to cause a multiplicity of actions,
the Supreme Court exercised its discretion to bring the
issue to the act's validity promptly before it and decide
in the interest of the orderly administration of justice.
The court relied by analogy upon the cases of Ex
parteYoung (209 U. S., 123;52 Law ed., 714; 13 L. R. A.
[N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux
vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D,
545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and
Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A.
1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A,
1024). Although objection to the jurisdiction was raise
by demurrer to the petition, this is now disclaimed on
behalf of the respondents, and both parties ask a
decision on the merits. In view of the broad powers in
prohibition granted to that court under the Island Code,
we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ
issuing out of a court of superior jurisdiction and
directed to an inferior court, for the purpose of
preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (High,
Extraordinary Legal Remedies, p. 705.) The general rule,
although there is a conflict in the cases, is that the merit
of prohibition will not lie whether the inferior court has
jurisdiction independent of the statute the
constitutionality of which is questioned, because in such
cases the interior court having jurisdiction may itself
determine the constitutionality of the statute, and its
decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate
remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal
derives its jurisdiction exclusively from an
unconstitutional statute, it may be prevented by the writ
of prohibition from enforcing that statute. (50 C. J.,
670; Ex parte Round tree [1874, 51 Ala., 42; In
re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish
[1912], 109 Me., 384; 84 A., 799; Pennington vs.
Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54
W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5
Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings
derived their jurisdiction solely from Act No. 4221
which prescribes in detailed manner the procedure for
granting probation to accused persons after their
conviction has become final and before they have served
their sentence. It is true that at common law the
authority of the courts to suspend temporarily the
execution of the sentence is recognized and, according
to a number of state courts, including those of
Massachusetts, Michigan, New York, and Ohio, the
power is inherent in the courts (Commonwealth vs.
Dowdican's Bail [1874], 115 Mass., 133; People vs.
Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex
rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
Weber vs. State [1898], 58 Ohio St., 616). But, in the
leading case of Ex parte United States ([1916], 242 U. S.,
27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct.
Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of
the United States expressed the opinion that under the
common law the power of the court was limited to
temporary suspension, and brushed aside the
contention as to inherent judicial power saying, through
Chief Justice White:
Indisputably under our constitutional system the right
to try offenses against the criminal laws and upon
conviction to impose the punishment provided by law is
judicial, and it is equally to be conceded that, in exerting
the powers vested in them on such subject, courts
inherently possess ample right to exercise reasonable,
that is, judicial, discretion to enable them to wisely exert
their authority. But these concessions afford no ground
for the contention as to power here made, since it must
rest upon the proposition that the power to enforce
begets inherently a discretion to permanently refuse to
do so. And the effect of the proposition urged upon the
distribution of powers made by the Constitution will
become apparent when it is observed that indisputable
153
also is it that the authority to define and fix the
punishment for crime is legislative and includes the
right in advance to bring within judicial discretion, for
the purpose of executing the statute, elements of
consideration which would be otherwise beyond the
scope of judicial authority, and that the right to relieve
from the punishment, fixed by law and ascertained
according to the methods by it provided belongs to the
executive department.
Justice Carson, in his illuminating concurring opinion in
the case of Director of Prisons vs. Judge of First Instance
of Cavite (29 Phil., 265), decided by this court in 1915,
also reached the conclusion that the power to suspend
the execution of sentences pronounced in criminal cases
is not inherent in the judicial function. "All are agreed",
he said, "that in the absence of statutory authority, it
does not lie within the power of the courts to grant such
suspensions." (at p. 278.) Both petitioner and
respondents are correct, therefore, when they argue
that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its
jurisdiction in such proceedings is conferred exclusively
by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute
will not be considered on application for prohibition
where the question has not been properly brought to
the attention of the court by objection of some kind (Hill
vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel.
Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In
the case at bar, it is unquestionable that the
constitutional issue has been squarely presented not
only before this court by the petitioners but also before
the trial court by the private prosecution. The
respondent, Hon. Jose O Vera, however, acting as judge
of the court below, declined to pass upon the question
on the ground that the private prosecutor, not being a
party whose rights are affected by the statute, may not
raise said question. The respondent judge cited Cooley
on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec.
177, pp. 760 and 762), and McGlue vs. Essex County
([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority
for the proposition that a court will not consider any
attack made on the constitutionality of a statute by one
who has no interest in defeating it because his rights are
not affected by its operation. The respondent judge
further stated that it may not motu proprio take up the
constitutional question and, agreeing with Cooley that
"the power to declare a legislative enactment void is one
which the judge, conscious of the fallibility of the human
judgment, will shrink from exercising in any case where
he can conscientiously and with due regard to duty and
official oath decline the responsibility" (Constitutional
Limitations, 8th ed., Vol. I, p. 332), proceeded on the
assumption that Act No. 4221 is constitutional. While
therefore, the court a quo admits that the constitutional
question was raised before it, it refused to consider the
question solely because it was not raised by a proper
party. Respondents herein reiterates this view. The
argument is advanced that the private prosecution has
no personality to appear in the hearing of the
application for probation of defendant Mariano Cu
Unjieng in criminal case No. 42648 of the Court of First
Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower
court. Although, as a general rule, only those who are
parties to a suit may question the constitutionality of a
statute involved in a judicial decision, it has been held
that since the decree pronounced by a court without
jurisdiction is void, where the jurisdiction of the court
depends on the validity of the statute in question, the
issue of the constitutionality will be considered on its
being brought to the attention of the court by persons
interested in the effect to be given the statute.(12 C. J.,
sec. 184, p. 766.) And, even if we were to concede that
the issue was not properly raised in the court below by
the proper party, it does not follow that the issue may
not be here raised in an original action of certiorari and
prohibitions. It is true that, as a general rule, the
question of constitutionality must be raised at the
earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised at the trial,
and if not raised in the trial court, it will not considered
on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But
we must state that the general rule admits of exceptions.
Courts, in the exercise of sounds discretion, may
determine the time when a question affecting the
constitutionality of a statute should be presented. (In
re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of
authorities, it is said that the question may be raised for
the first time at any stage of the proceedings, either in
the trial court or on appeal. (12 C. J., p. 786.) Even in
civil cases, it has been held that it is the duty of a court
to pass on the constitutional question, though raised for
the first time on appeal, if it appears that a
determination of the question is necessary to a decision
of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co.,
[1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St.
Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108;
Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572;
87 S. W., 913.) And it has been held that a constitutional
question will be considered by an appellate court at any
time, where it involves the jurisdiction of the court
below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.)
As to the power of this court to consider the
constitutional question raised for the first time before
this court in these proceedings, we turn again and point
with emphasis to the case of Yu Cong Eng vs. Trinidad,
supra. And on the hypotheses that the Hongkong &
Shanghai Banking Corporation, represented by the
private prosecution, is not the proper party to raise the
constitutional question here — a point we do not now
have to decide — we are of the opinion that the People
of the Philippines, represented by the Solicitor-General
and the Fiscal of the City of Manila, is such a proper
party in the present proceedings. The unchallenged rule
is that the person who impugns the validity of a statute
must have a personal and substantial interest in the
case such that he has sustained, or will sustained, direct
injury as a result of its enforcement. It goes without
saying that if Act No. 4221 really violates the
constitution, the People of the Philippines, in whose
name the present action is brought, has a substantial
interest in having it set aside. Of grater import than the
damage caused by the illegal expenditure of public
funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid
statute. Hence, the well-settled rule that the state can
challenge the validity of its own laws. In Government of
the Philippine Islands vs. Springer ([1927]), 50 Phil.,
259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed.,
845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the
Government of the Philippines. In Attorney General vs.
Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426,
428, 429), the State of Michigan, through its Attorney
General, instituted quo warranto proceedings to test the
right of the respondents to renew a mining corporation,
alleging that the statute under which the respondents
base their right was unconstitutional because it
impaired the obligation of contracts. The capacity of the
chief law officer of the state to question the
constitutionality of the statute was though, as a general
rule, only those who are parties to a suit may question
the constitutionality of a statute involved in a judicial
154
decision, it has been held that since the decree
pronounced by a court without jurisdiction in void,
where the jurisdiction of the court depends on the
validity of the statute in question, the issue of
constitutionality will be considered on its being brought
to the attention of the court by persons interested in the
effect to begin the statute. (12 C.J., sec. 184, p. 766.) And,
even if we were to concede that the issue was not
properly raised in the court below by the proper party,
it does not follow that the issue may not be here raised
in an original action of certiorari and prohibition. It is
true that, as a general rule, the question of
constitutionality must be raised at the earliest
opportunity, so that if not raised by the pleadings,
ordinarily it may not be raised a the trial, and if not
raised in the trial court, it will not be considered on
appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But
we must state that the general rule admits of exceptions.
Courts, in the exercise of sound discretion, may
determine the time when a question affecting the
constitutionality of a statute should be presented. (In re
Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of
authorities, it is said that the question may be raised for
the first time at any state of the proceedings, either in
the trial court or on appeal. (12 C.J., p. 786.) Even in civil
cases, it has been held that it is the duty of a court to
pass on the constitutional question, though raised for
first time on appeal, if it appears that a determination of
the question is necessary to a decision of the case.
(McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136
Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage
Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs.
St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.)
And it has been held that a constitutional question will
be considered by an appellate court at any time, where
it involves the jurisdiction of the court below (State vs.
Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power
of this court to consider the constitutional question
raised for the first time before this court in these
proceedings, we turn again and point with emphasis to
the case of Yu Cong Eng. vs. Trinidad, supra. And on the
hypothesis that the Hongkong & Shanghai Banking
Corporation, represented by the private prosecution, is
not the proper party to raise the constitutional question
here — a point we do not now have to decide — we are
of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of
the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person
who impugns the validity of a statute must have a
personal and substantial interest in the case such that
he has sustained, or will sustain, direct injury as a result
of its enforcement. It goes without saying that if Act No.
4221 really violates the Constitution, the People of the
Philippines, in whose name the present action is
brought, has a substantial interest in having it set aside.
Of greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the enforcement
of an invalid statute. Hence, the well-settled rule that
the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs.
Government of the Philippine Islands [1928], 277 U.S.,
189; 72 Law. ed., 845), this court declared an act of the
legislature unconstitutional in an action instituted in
behalf of the Government of the Philippines. In Attorney
General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41
N.W., 426, 428, 429), the State of Michigan, through its
Attorney General, instituted quo warranto proceedings
to test the right of the respondents to renew a mining
corporation, alleging that the statute under which the
respondents base their right was unconstitutional
because it impaired the obligation of contracts. The
capacity of the chief law officer of the state to question
the constitutionality of the statute was itself questioned.
Said the Supreme Court of Michigan, through Champlin,
J.:
. . . The idea seems to be that the people are estopped
from questioning the validity of a law enacted by their
representatives; that to an accusation by the people of
Michigan of usurpation their government, a statute
enacted by the people of Michigan is an adequate
answer. The last proposition is true, but, if the statute
relied on in justification is unconstitutional, it is statute
only in form, and lacks the force of law, and is of no
more saving effect to justify action under it than if it had
never been enacted. The constitution is the supreme
law, and to its behests the courts, the legislature, and the
people must bow . . . The legislature and the
respondents are not the only parties in interest upon
such constitutional questions. As was remarked by Mr.
Justice Story, in speaking of an acquiescence by a party
affected by an unconstitutional act of the legislature:
"The people have a deep and vested interest in
maintaining all the constitutional limitations upon the
exercise of legislative powers." (Allen vs. Mckeen, 1
Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38,
40), an original action (mandamus) was brought by the
Attorney-General of Kansas to test the constitutionality
of a statute of the state. In disposing of the question
whether or not the state may bring the action, the
Supreme Court of Kansas said:
. . . the state is a proper party — indeed, the proper
party — to bring this action. The state is always
interested where the integrity of its Constitution or
statutes is involved.
"It has an interest in seeing that the will of the
Legislature is not disregarded, and need not, as an
individual plaintiff must, show grounds of fearing more
specific injury. (State vs. Kansas City 60 Kan., 518 [57
Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac.,
839.)
Where the constitutionality of a statute is in doubt the
state's law officer, its Attorney-General, or county
attorney, may exercise his bet judgment as to what sort
of action he will bring to have the matter determined,
either by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by
mandamus to compel obedience to its terms (State vs.
Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to
restrain proceedings under its questionable provisions
(State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45
Pac., 122).
Other courts have reached the same conclusion (See
State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006;
State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs.
Walmsley [1935], 181 La., 597; 160 S., 91; State vs.
Board of County Comr's [1934], 39 Pac. [2d], 286; First
Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295;
116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119
N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S.,
8, 10, 11). In the case last cited, the Supreme Court of
Luisiana said:
It is contended by counsel for Herbert Watkins that a
district attorney, being charged with the duty of
enforcing the laws, has no right to plead that a law is
unconstitutional. In support of the argument three
decisions are cited, viz.: State ex rel. Hall, District
Attorney, vs. Judge of Tenth Judicial District (33 La. Ann.,
1222); State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 Ann., 156; 6 So., 592); and
State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La.
Ann., 1679; 18 So., 746; 47 L. R. A., 512). These
155
decisions do not forbid a district attorney to plead that a
statute is unconstitutional if he finds if in conflict with
one which it is his duty to enforce. In State ex rel. Hall,
District Attorney, vs. Judge, etc., the ruling was the judge
should not, merely because he believed a certain statute
to be unconstitutional forbid the district attorney to file
a bill of information charging a person with a violation
of the statute. In other words, a judge should not
judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision,
and unless it must be decided in order to determine the
right of a party litigant. State ex rel. Nicholls, Governor,
etc., is authority for the proposition merely that an
officer on whom a statute imposes the duty of enforcing
its provisions cannot avoid the duty upon the ground
that he considers the statute unconstitutional, and
hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex
rel. Banking Co., etc., is authority for the proposition
merely that executive officers, e.g., the state auditor and
state treasurer, should not decline to perform
ministerial duties imposed upon them by a statute, on
the ground that they believe the statute is
unconstitutional.
It is the duty of a district attorney to enforce the
criminal laws of the state, and, above all, to support the
Constitution of the state. If, in the performance of his
duty he finds two statutes in conflict with each other, or
one which repeals another, and if, in his judgment, one
of the two statutes is unconstitutional, it is his duty to
enforce the other; and, in order to do so, he is compelled
to submit to the court, by way of a plea, that one of the
statutes is unconstitutional. If it were not so, the power
of the Legislature would be free from constitutional
limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the
correctness of the general proposition that the state
may impugn the validity of its laws. They have not cited
any authority running clearly in the opposite direction.
In fact, they appear to have proceeded on the
assumption that the rule as stated is sound but that it
has no application in the present case, nor may it be
invoked by the City Fiscal in behalf of the People of the
Philippines, one of the petitioners herein, the principal
reasons being that the validity before this court, that the
City Fiscal is estopped from attacking the validity of the
Act and, not authorized challenge the validity of the Act
in its application outside said city. (Additional
memorandum of respondents, October 23, 1937, pp. 8,.
10, 17 and 23.)
The mere fact that the Probation Act has been
repeatedly relied upon the past and all that time has not
been attacked as unconstitutional by the Fiscal of
Manila but, on the contrary, has been impliedly regarded
by him as constitutional, is no reason for considering
the People of the Philippines estopped from nor
assailing its validity. For courts will pass upon a
constitutional questions only when presented before it
in bona fide cases for determination, and the fact that
the question has not been raised before is not a valid
reason for refusing to allow it to be raised later. The
fiscal and all others are justified in relying upon the
statute and treating it as valid until it is held void by the
courts in proper cases.
It remains to consider whether the determination of the
constitutionality of Act No. 4221 is necessary to the
resolution of the instant case. For, ". . . while the court
will meet the question with firmness, where its decision
is indispensable, it is the part of wisdom, and just
respect for the legislature, renders it proper, to waive it,
if the case in which it arises, can be decided on other
points." (Ex parte Randolph [1833], 20 F. Cas. No. 11,
558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9
Ind., 286, 287.) It has been held that the determination
of a constitutional question is necessary whenever it is
essential to the decision of the case (12 C. J., p. 782,
citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App.
Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E.,
849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272];
Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs.
Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs.
Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as
where the right of a party is founded solely on a statute
the validity of which is attacked. (12 C.J., p. 782, citing
Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59
S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306).
There is no doubt that the respondent Cu Unjieng draws
his privilege to probation solely from Act No. 4221 now
being assailed.
Apart from the foregoing considerations, that court will
also take cognizance of the fact that the Probation Act is
a new addition to our statute books and its validity has
never before been passed upon by the courts; that may
persons accused and convicted of crime in the City of
Manila have applied for probation; that some of them
are already on probation; that more people will likely
take advantage of the Probation Act in the future; and
that the respondent Mariano Cu Unjieng has been at
large for a period of about four years since his first
conviction. All wait the decision of this court on the
constitutional question. Considering, therefore, the
importance which the instant case has assumed and to
prevent multiplicity of suits, strong reasons of public
policy demand that the constitutionality of Act No. 4221
be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6
R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y.,
533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis
vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211;
37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs.
Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs.
Trinidad, supra, an analogous situation confronted us.
We said: "Inasmuch as the property and personal rights
of nearly twelve thousand merchants are affected by
these proceedings, and inasmuch as Act No. 2972 is a
new law not yet interpreted by the courts, in the
interest of the public welfare and for the advancement
of public policy, we have determined to overrule the
defense of want of jurisdiction in order that we may
decide the main issue. We have here an extraordinary
situation which calls for a relaxation of the general rule."
Our ruling on this point was sustained by the Supreme
Court of the United States. A more binding authority in
support of the view we have taken can not be found.
We have reached the conclusion that the question of the
constitutionality of Act No. 4221 has been properly
raised. Now for the main inquiry: Is the Act
unconstitutional?
Under a doctrine peculiarly American, it is the office and
duty of the judiciary to enforce the Constitution. This
court, by clear implication from the provisions of
section 2, subsection 1, and section 10, of Article VIII of
the Constitution, may declare an act of the national
legislature invalid because in conflict with the
fundamental lay. It will not shirk from its sworn duty to
enforce the Constitution. And, in clear cases, it will not
hesitate to give effect to the supreme law by setting
aside a statute in conflict therewith. This is of the
essence of judicial duty.
This court is not unmindful of the fundamental criteria
in cases of this nature that all reasonable doubts should
be resolved in favor of the constitutionality of a statute.
An act of the legislature approved by the executive, is
presumed to be within constitutional limitations. The
responsibility of upholding the Constitution rests not on
the courts alone but on the legislature as well. "The
156
question of the validity of every statute is first
determined by the legislative department of the
government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1,
10; Case vs. Board of Health and Heiser [1913], 24 Phil.,
250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute
finally comes before the courts sustained by the
sanction of the executive. The members of the
Legislature and the Chief Executive have taken an oath
to support the Constitution and it must be presumed
that they have been true to this oath and that in
enacting and sanctioning a particular law they did not
intend to violate the Constitution. The courts cannot but
cautiously exercise its power to overturn the solemn
declarations of two of the three grand departments of
the governments. (6 R.C.L., p. 101.) Then, there is that
peculiar political philosophy which bids the judiciary to
reflect the wisdom of the people as expressed through
an elective Legislature and an elective Chief Executive. It
follows, therefore, that the courts will not set aside a law
as violative of the Constitution except in a clear case.
This is a proposition too plain to require a citation of
authorities.
One of the counsel for respondents, in the course of his
impassioned argument, called attention to the fact that
the President of the Philippines had already expressed
his opinion against the constitutionality of the
Probation Act, adverting that as to the Executive the
resolution of this question was a foregone conclusion.
Counsel, however, reiterated his confidence in the
integrity and independence of this court. We take notice
of the fact that the President in his message dated
September 1, 1937, recommended to the National
Assembly the immediate repeal of the Probation Act
(No. 4221); that this message resulted in the approval of
Bill No. 2417 of the Nationality Assembly repealing the
probation Act, subject to certain conditions therein
mentioned; but that said bill was vetoed by the
President on September 13, 1937, much against his
wish, "to have stricken out from the statute books of the
Commonwealth a law . . . unfair and very likely
unconstitutional." It is sufficient to observe in this
connection that, in vetoing the bill referred to, the
President exercised his constitutional prerogative. He
may express the reasons which he may deem proper for
taking such a step, but his reasons are not binding upon
us in the determination of actual controversies
submitted for our determination. Whether or not the
Executive should express or in any manner insinuate his
opinion on a matter encompassed within his broad
constitutional power of veto but which happens to be at
the same time pending determination in this court is a
question of propriety for him exclusively to decide or
determine. Whatever opinion is expressed by him under
these circumstances, however, cannot sway our
judgment on way or another and prevent us from taking
what in our opinion is the proper course of action to
take in a given case. It if is ever necessary for us to make
any vehement affirmance during this formative period
of our political history, it is that we are independent of
the Executive no less than of the Legislative department
of our government — independent in the performance
of our functions, undeterred by any consideration, free
from politics, indifferent to popularity, and unafraid of
criticism in the accomplishment of our sworn duty as
we see it and as we understand it.
The constitutionality of Act No. 4221 is challenged on
three principal grounds: (1) That said Act encroaches
upon the pardoning power of the Executive; (2) that its
constitutes an undue delegation of legislative power and
(3) that it denies the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916,
commonly known as the Jones Law, in force at the time
of the approval of Act No. 4221, otherwise known as the
Probation Act, vests in the Governor-General of the
Philippines "the exclusive power to grant pardons and
reprieves and remit fines and forfeitures". This power is
now vested in the President of the Philippines. (Art. VII,
sec. 11, subsec. 6.) The provisions of the Jones Law and
the Constitution differ in some respects. The adjective
"exclusive" found in the Jones Law has been omitted
from the Constitution. Under the Jones Law, as at
common law, pardon could be granted any time after
the commission of the offense, either before or after
conviction (Vide Constitution of the United States, Art. II,
sec. 2; In re Lontok [1922], 43 Phil., 293). The Governor-
General of the Philippines was thus empowered, like the
President of the United States, to pardon a person
before the facts of the case were fully brought to light.
The framers of our Constitution thought this
undesirable and, following most of the state
constitutions, provided that the pardoning power can
only be exercised "after conviction". So, too, under the
new Constitution, the pardoning power does not extend
to "cases of impeachment". This is also the rule
generally followed in the United States
(Vide Constitution of the United States, Art. II, sec. 2).
The rule in England is different. There, a royal pardon
can not be pleaded in bar of an impeachment; "but,"
says Blackstone, "after the impeachment has been
solemnly heard and determined, it is not understood
that the king's royal grace is further restrained or
abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15
Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass.,
323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29
Ohio St., 457; 23 am. Rep., 762.) The reason for the
distinction is obvious. In England, Judgment on
impeachment is not confined to mere "removal from
office and disqualification to hold and enjoy any office of
honor, trust, or profit under the Government" (Art. IX,
sec. 4, Constitution of the Philippines) but extends to
the whole punishment attached by law to the offense
committed. The House of Lords, on a conviction may, by
its sentence, inflict capital punishment, perpetual
banishment, perpetual banishment, fine or
imprisonment, depending upon the gravity of the
offense committed, together with removal from office
and incapacity to hold office. (Com. vs.
Lockwood, supra.) Our Constitution also makes specific
mention of "commutation" and of the power of the
executive to impose, in the pardons he may grant, such
conditions, restrictions and limitations as he may deem
proper. Amnesty may be granted by the President under
the Constitution but only with the concurrence of the
National Assembly. We need not dwell at length on the
significance of these fundamental changes. It is
sufficient for our purposes to state that the pardoning
power has remained essentially the same. The question
is: Has the pardoning power of the Chief Executive
under the Jones Law been impaired by the Probation
Act?
As already stated, the Jones Law vests the pardoning
power exclusively in the Chief Executive. The exercise of
the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the
executive cannot be taken away nor fettered by any
legislative restrictions, nor can like power be given by
the legislature to any other officer or authority. The
coordinate departments of government have nothing to
do with the pardoning power, since no person properly
belonging to one of the departments can exercise any
powers appertaining to either of the others except in
cases expressly provided for by the constitution." (20
R.C.L., pp., , and cases cited.) " . . . where the pardoning
power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the
legislature can neither exercise such power itself nor
delegate it elsewhere, nor interfere with or control the
157
proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and
cases cited.) If Act No. 4221, then, confers any
pardoning power upon the courts it is for that reason
unconstitutional and void. But does it?
In the famous Killitts decision involving an
embezzlement case, the Supreme Court of the United
States ruled in 1916 that an order indefinitely
suspending sentenced was void. (Ex parte United States
[1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief
Justice White, after an exhaustive review of the
authorities, expressed the opinion of the court that
under the common law the power of the court was
limited to temporary suspension and that the right to
suspend sentenced absolutely and permanently was
vested in the executive branch of the government and
not in the judiciary. But, the right of Congress to
establish probation by statute was conceded. Said the
court through its Chief Justice: ". . . and so far as the
future is concerned, that is, the causing of the
imposition of penalties as fixed to be subject, by
probation legislation or such other means as the
legislative mind may devise, to such judicial discretion
as may be adequate to enable courts to meet by the
exercise of an enlarged but wise discretion the infinite
variations which may be presented to them for
judgment, recourse must be had Congress whose
legislative power on the subject is in the very nature of
things adequately complete." (Quoted in Riggs vs. United
States [1926], 14 F. [2d], 5, 6.) This decision led the
National Probation Association and others to agitate for
the enactment by Congress of a federal probation law.
Such action was finally taken on March 4, 1925 (chap.
521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was
followed by an appropriation to defray the salaries and
expenses of a certain number of probation officers
chosen by civil service. (Johnson, Probation for Juveniles
and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48
Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court
of the United States, through Chief Justice Taft, held that
when a person sentenced to imprisonment by a district
court has begun to serve his sentence, that court has no
power under the Probation Act of March 4, 1925 to
grant him probation even though the term at which
sentence was imposed had not yet expired. In this case
of Murray, the constitutionality of the probation Act was
not considered but was assumed. The court traced the
history of the Act and quoted from the report of the
Committee on the Judiciary of the United States House
of Representatives (Report No. 1377, 68th Congress, 2
Session) the following statement:
Prior to the so-called Killitts case, rendered in
December, 1916, the district courts exercised a form of
probation either, by suspending sentence or by placing
the defendants under state probation officers or
volunteers. In this case, however (Ex parte United
States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178;
37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme
Court denied the right of the district courts to suspend
sentenced. In the same opinion the court pointed out
the necessity for action by Congress if the courts were to
exercise probation powers in the future . . .
Since this decision was rendered, two attempts have
been made to enact probation legislation. In 1917, a bill
was favorably reported by the Judiciary Committee and
passed the House. In 1920, the judiciary Committee
again favorably reported a probation bill to the House,
but it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of
the Federal government with reference to its treatment
of those convicted of violations of its criminal laws in
harmony with that of the states of the Union. At the
present time every state has a probation law, and in all
but twelve states the law applies both to adult and
juvenile offenders. (see, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has
been sustained by inferior federal courts. In Riggs vs.
United States supra, the Circuit Court of Appeals of the
Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925,
the questions under consideration have been reviewed
by the Circuit Court of Appeals of the Ninth Circuit (7 F.
[2d], 590), and the constitutionality of the act fully
sustained, and the same held in no manner to encroach
upon the pardoning power of the President. This case
will be found to contain an able and comprehensive
review of the law applicable here. It arose under the act
we have to consider, and to it and the authorities cited
therein special reference is made (Nix vs. James, 7 F.
[2d], 590, 594), as is also to a decision of the Circuit
Court of Appeals of the Seventh Circuit (Kriebel vs. U.S.,
10 F. [2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the
United States; in plain and unequivocal language,
pointed to Congress as possessing the requisite power
to enact probation laws, that a federal probation law as
actually enacted in 1925, and that the constitutionality
of the Act has been assumed by the Supreme Court of
the United States in 1928 and consistently sustained by
the inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature,
like the Congress of the United States, may legally enact
a probation law under its broad power to fix the
punishment of any and all penal offenses. This
conclusion is supported by other authorities. In Ex
parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285;
151 Pac., 698, the court said: "It is clearly within the
province of the Legislature to denominate and define all
classes of crime, and to prescribe for each a minimum
and maximum punishment." And in State vs. Abbott
([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6;
Ann. Cas. 1912B, 1189), the court said: "The legislative
power to set punishment for crime is very broad, and in
the exercise of this power the general assembly may
confer on trial judges, if it sees fit, the largest discretion
as to the sentence to be imposed, as to the beginning
and end of the punishment and whether it should be
certain or indeterminate or conditional." (Quoted in
State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed,
the Philippine Legislature has defined all crimes and
fixed the penalties for their violation. Invariably, the
legislature has demonstrated the desire to vest in the
courts — particularly the trial courts — large discretion
in imposing the penalties which the law prescribes in
particular cases. It is believed that justice can best be
served by vesting this power in the courts, they being in
a position to best determine the penalties which an
individual convict, peculiarly circumstanced, should
suffer. Thus, while courts are not allowed to refrain from
imposing a sentence merely because, taking into
consideration the degree of malice and the injury
caused by the offense, the penalty provided by law is
clearly excessive, the courts being allowed in such case
to submit to the Chief Executive, through the
Department of Justice, such statement as it may deem
proper (see art. 5, Revised Penal Code), in cases where
both mitigating and aggravating circumstances are
attendant in the commission of a crime and the law
provides for a penalty composed of two indivisible
penalties, the courts may allow such circumstances to
offset one another in consideration of their number and
importance, and to apply the penalty according to the
result of such compensation. (Art. 63, rule 4, Revised
Penal Code; U.S. vs. Reguera and Asuategui [1921], 41
Phil., 506.) Again, article 64, paragraph 7, of the Revised
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Penal Code empowers the courts to determine, within
the limits of each periods, in case the penalty prescribed
by law contains three periods, the extent of the evil
produced by the crime. In the imposition of fines, the
courts are allowed to fix any amount within the limits
established by law, considering not only the mitigating
and aggravating circumstances, but more particularly
the wealth or means of the culprit. (Art. 66, Revised
Penal Code.) Article 68, paragraph 1, of the same Code
provides that "a discretionary penalty shall be imposed"
upon a person under fifteen but over nine years of age,
who has not acted without discernment, but always
lower by two degrees at least than that prescribed by
law for the crime which he has committed. Article 69 of
the same Code provides that in case of "incomplete self-
defense", i.e., when the crime committed is not wholly
excusable by reason of the lack of some of the
conditions required to justify the same or to exempt
from criminal liability in the several cases mentioned in
article 11 and 12 of the Code, "the courts shall impose
the penalty in the period which may be deemed proper,
in view of the number and nature of the conditions of
exemption present or lacking." And, in case the
commission of what are known as "impossible" crimes,
"the court, having in mind the social danger and the
degree of criminality shown by the offender," shall
impose upon him either arresto mayor or a fine ranging
from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the
period of preventive imprisonment is deducted form the
entire term of imprisonment, except in certain cases
expressly mentioned (art. 29); the death penalty is not
imposed when the guilty person is more than seventy
years of age, or where upon appeal or revision of the
case by the Supreme Court, all the members thereof are
not unanimous in their voting as to the propriety of the
imposition of the death penalty (art. 47, see also, sec.
133, Revised Administrative Code, as amended by
Commonwealth Act No. 3); the death sentence is not to
be inflicted upon a woman within the three years next
following the date of the sentence or while she is
pregnant, or upon any person over seventy years of age
(art. 83); and when a convict shall become insane or an
imbecile after final sentence has been pronounced, or
while he is serving his sentenced, the execution of said
sentence shall be suspended with regard to the personal
penalty during the period of such insanity or imbecility
(art. 79).
But the desire of the legislature to relax what might
result in the undue harshness of the penal laws is more
clearly demonstrated in various other enactments,
including the probation Act. There is the Indeterminate
Sentence Law enacted in 1933 as Act No. 4103 and
subsequently amended by Act No. 4225, establishing a
system of parole (secs. 5 to 100 and granting the courts
large discretion in imposing the penalties of the law.
Section 1 of the law as amended provides; "hereafter, in
imposing a prison sentence for an offenses punished by
the Revised Penal Code, or its amendments, the court
shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view
of the attending circumstances, could be properly
imposed under the rules of the said Code, and to a
minimum which shall be within the range of the penalty
next lower to that prescribed by the Code for the
offense; and if the offense is punished by any other law,
the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall
not be less than the minimum term prescribed by the
same." Certain classes of convicts are, by section 2 of the
law, excluded from the operation thereof. The
Legislature has also enacted the Juvenile Delinquency
Law (Act No. 3203) which was subsequently amended
by Act No. 3559. Section 7 of the original Act and section
1 of the amendatory Act have become article 80 of the
Revised Penal Code, amended by Act No. 4117 of the
Philippine Legislature and recently reamended by
Commonwealth Act No. 99 of the National Assembly. In
this Act is again manifested the intention of the
legislature to "humanize" the penal laws. It allows, in
effect, the modification in particular cases of the
penalties prescribed by law by permitting the
suspension of the execution of the judgment in the
discretion of the trial court, after due hearing and after
investigation of the particular circumstances of the
offenses, the criminal record, if any, of the convict, and
his social history. The Legislature has in reality decreed
that in certain cases no punishment at all shall be
suffered by the convict as long as the conditions of
probation are faithfully observed. It this be so, then, it
cannot be said that the Probation Act comes in conflict
with the power of the Chief Executive to grant pardons
and reprieves, because, to use the language of the
Supreme Court of New Mexico, "the element of
punishment or the penalty for the commission of a
wrong, while to be declared by the courts as a judicial
function under and within the limits of law as
announced by legislative acts, concerns solely the
procedure and conduct of criminal causes, with which
the executive can have nothing to do." (Ex
parteBates, supra.) In Williams vs. State ([1926], 162
Ga., 327; 133 S.E., 843), the court upheld the
constitutionality of the Georgia probation statute
against the contention that it attempted to delegate to
the courts the pardoning power lodged by the
constitution in the governor alone is vested with the
power to pardon after final sentence has been imposed
by the courts, the power of the courts to imposed any
penalty which may be from time to time prescribed by
law and in such manner as may be defined cannot be
questioned."
We realize, of course, the conflict which the American
cases disclose. Some cases hold it unlawful for the
legislature to vest in the courts the power to suspend
the operation of a sentenced, by probation or otherwise,
as to do so would encroach upon the pardoning power
of the executive. Other cases, however, hold contra. We
elect to follow this long catena of authorities holding
that the courts may be legally authorized by the
legislature to suspend sentence by the establishment of
a system of probation however characterized. State ex
rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206
Pac., 29; 26 A. L. R., 393), deserved particular mention.
In that case, a statute enacted in 1921 which provided
for the suspension of the execution of a sentence until
otherwise ordered by the court, and required that the
convicted person be placed under the charge of a parole
or peace officer during the term of such suspension, on
such terms as the court may determine, was held
constitutional and as not giving the court a power in
violation of the constitutional provision vesting the
pardoning power in the chief executive of the state.
(Vide, also, Re Giannini [1912], 18 Cal App., 166; 122
Pac., 831.)
Probation and pardon are not coterminous; nor are they
the same. They are actually district and different from
each other, both in origin and in nature. In People ex rel.
Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288,
294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim.
Rep., 675), the Court of Appeals of New York said:
. . . The power to suspend sentence and the power to
grant reprieves and pardons, as understood when the
constitution was adopted, are totally distinct and
different in their nature. The former was always a part
of the judicial power; the latter was always a part of the
159
executive power. The suspension of the sentence simply
postpones the judgment of the court temporarily or
indefinitely, but the conviction and liability following it,
and the civil disabilities, remain and become operative
when judgment is rendered. A pardon reaches both the
punishment prescribed for the offense and the guilt of
the offender. It releases the punishment, and blots out of
existence the guilt, so that in the eye of the law, the
offender is as innocent as if he had never committed the
offense. It removes the penalties and disabilities, and
restores him to all his civil rights. It makes him, as it
were, a new man, and gives him a new credit and
capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law.
ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law.
ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions
were perfectly familiar with the principles governing
the power to grant pardons, and it was conferred by
these instruments upon the executive with full
knowledge of the law upon the subject, and the words of
the constitution were used to express the authority
formerly exercised by the English crown, or by its
representatives in the colonies. (Ex parte Wells, 59 U. S.,
18 How., 307; 15 Law. ed., 421.) As this power was
understood, it did not comprehend any part of the
judicial functions to suspend sentence, and it was never
intended that the authority to grant reprieves and
pardons should abrogate, or in any degree restrict, the
exercise of that power in regard to its own judgments,
that criminal courts has so long maintained. The two
powers, so distinct and different in their nature and
character, were still left separate and distinct, the one to
be exercised by the executive, and the other by the
judicial department. We therefore conclude that a
statute which, in terms, authorizes courts of criminal
jurisdiction to suspend sentence in certain cases after
conviction, — a power inherent in such courts at
common law, which was understood when the
constitution was adopted to be an ordinary judicial
function, and which, ever since its adoption, has been
exercised of legislative power under the constitution. It
does not encroach, in any just sense, upon the powers of
the executive, as they have been understood and
practiced from the earliest times. (Quoted with approval
in Directors of Prisons vs. Judge of First Instance of
Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp.
294, 295.)
In probation, the probationer is in no true sense, as in
pardon, a free man. He is not finally and completely
exonerated. He is not exempt from the entire
punishment which the law inflicts. Under the Probation
Act, the probationer's case is not terminated by the
mere fact that he is placed on probation. Section 4 of the
Act provides that the probation may be definitely
terminated and the probationer finally discharged from
supervision only after the period of probation shall have
been terminated and the probation officer shall have
submitted a report, and the court shall have found that
the probationer has complied with the conditions of
probation. The probationer, then, during the period of
probation, remains in legal custody — subject to the
control of the probation officer and of the court; and, he
may be rearrested upon the non-fulfillment of the
conditions of probation and, when rearrested, may be
committed to prison to serve the sentence originally
imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is
not complete liberty, and may be far from it. It is really a
new mode of punishment, to be applied by the judge in
a proper case, in substitution of the imprisonment and
find prescribed by the criminal laws. For this reason its
application is as purely a judicial act as any other
sentence carrying out the law deemed applicable to the
offense. The executive act of pardon, on the contrary, is
against the criminal law, which binds and directs the
judges, or rather is outside of and above it. There is thus
no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause.
(Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve
and from commutation of the sentence. Snodgrass vs.
State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.],
1144; 150 S. W., 162), is relied upon most strongly by
the petitioners as authority in support of their
contention that the power to grant pardons and
reprieves, having been vested exclusively upon the Chief
Executive by the Jones Law, may not be conferred by the
legislature upon the courts by means of probation law
authorizing the indefinite judicial suspension of
sentence. We have examined that case and found that
although the Court of Criminal Appeals of Texas held
that the probation statute of the state in terms
conferred on the district courts the power to grant
pardons to persons convicted of crime, it also
distinguished between suspensions sentence on the one
hand, and reprieve and commutation of sentence on the
other. Said the court, through Harper, J.:
That the power to suspend the sentence does not
conflict with the power of the Governor to grant
reprieves is settled by the decisions of the various
courts; it being held that the distinction between a
"reprieve" and a suspension of sentence is that a
reprieve postpones the execution of the sentence to a
day certain, whereas a suspension is for an indefinite
time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re
Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited
in 7 Words & Phrases, pp. 6115, 6116. This law cannot
be hold in conflict with the power confiding in the
Governor to grant commutations of punishment, for a
commutations is not but to change the punishment
assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73
Mont., 541; 237 Pac., 525), the Supreme Court of
Montana had under consideration the validity of the
adult probation law of the state enacted in 1913, now
found in sections 12078-12086, Revised Codes of 1921.
The court held the law valid as not impinging upon the
pardoning power of the executive. In a unanimous
decision penned by Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite"
each had a well understood meaning at the time our
Constitution was adopted, and no one of them was
intended to comprehend the suspension of the
execution of the judgment as that phrase is employed in
sections 12078-12086. A "pardon" is an act of grace,
proceeding from the power intrusted with the execution
of the laws which exempts the individual on whom it is
bestowed from the punishment the law inflicts for a
crime he has committed (United States vs. Wilson, 7
Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State
vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of the
offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex
parte Powell, 73 Ala., 517; 49 Am. Rep., 71).
"Commutation" is a remission of a part of the
punishment; a substitution of a less penalty for the one
originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789;
12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381;
65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4
Blackstone's Commentaries, 394), a postponement of
execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272),
a temporary suspension of execution (Butler vs. State,
97 Ind., 373).
Few adjudicated cases are to be found in which the
validity of a statute similar to our section 12078 has
been determined; but the same objections have been
160
urged against parole statutes which vest the power to
parole in persons other than those to whom the power
of pardon is granted, and these statutes have been
upheld quite uniformly, as a reference to the numerous
cases cited in the notes to Woods vs. State (130 Tenn.,
100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will
disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict
with the pardoning power of the Executive. The
pardoning power, in respect to those serving their
probationary sentences, remains as full and complete as
if the Probation Law had never been enacted. The
President may yet pardon the probationer and thus
place it beyond the power of the court to order his
rearrest and imprisonment. (Riggs vs. United States
[1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon
the pardoning power of the executive and is not for that
reason void, does section 11 thereof constitute, as
contended, an undue delegation of legislative power?
Under the constitutional system, the powers of
government are distributed among three coordinate and
substantially independent organs: the legislative, the
executive and the judicial. Each of these departments of
the government derives its authority from the
Constitution which, in turn, is the highest expression of
popular will. Each has exclusive cognizance of the
matters within its jurisdiction, and is supreme within its
own sphere.
The power to make laws — the legislative power — is
vested in a bicameral Legislature by the Jones Law (sec.
12) and in a unicamiral National Assembly by the
Constitution (Act. VI, sec. 1, Constitution of the
Philippines). The Philippine Legislature or the National
Assembly may not escape its duties and responsibilities
by delegating that power to any other body or authority.
Any attempt to abdicate the power is unconstitutional
and void, on the principle that potestas delegata non
delegare potest. This principle is said to have originated
with the glossators, was introduced into English law
through a misreading of Bracton, there developed as a
principle of agency, was established by Lord Coke in the
English public law in decisions forbidding the
delegation of judicial power, and found its way into
America as an enlightened principle of free government.
It has since become an accepted corollary of the
principle of separation of powers. (5 Encyc. of the Social
Sciences, p. 66.) The classic statement of the rule is that
of Locke, namely: "The legislative neither must nor can
transfer the power of making laws to anybody else, or
place it anywhere but where the people have." (Locke on
Civil Government, sec. 142.) Judge Cooley enunciates the
doctrine in the following oft-quoted language: "One of
the settled maxims in constitutional law is, that the
power conferred upon the legislature to make laws
cannot be delegated by that department to any other
body or authority. Where the sovereign power of the
state has located the authority, there it must remain;
and by the constitutional agency alone the laws must be
made until the Constitution itself is charged. The power
to whose judgment, wisdom, and patriotism this high
prerogative has been intrusted cannot relieve itself of
the responsibilities by choosing other agencies upon
which the power shall be devolved, nor can it substitute
the judgment, wisdom, and patriotism of any other body
for those to which alone the people have seen fit to
confide this sovereign trust." (Cooley on Constitutional
Limitations, 8th ed., Vol. I, p. 224. Quoted with approval
in U. S. vs. Barrias [1908], 11 Phil., 327.) This court
posits the doctrine "on the ethical principle that such a
delegated power constitutes not only a right but a duty
to be performed by the delegate by the instrumentality
of his own judgment acting immediately upon the
matter of legislation and not through the intervening
mind of another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of
legislative power is not absolute and inflexible. It admits
of exceptions. An exceptions sanctioned by immemorial
practice permits the central legislative body to delegate
legislative powers to local authorities. (Rubi vs.
Provincial Board of Mindoro [1919], 39 Phil., 660; U. S.
vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs.
Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup.
Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is
a cardinal principle of our system of government, that
local affairs shall be managed by local authorities, and
general affairs by the central authorities; and hence
while the rule is also fundamental that the power to
make laws cannot be delegated, the creation of the
municipalities exercising local self government has
never been held to trench upon that rule. Such
legislation is not regarded as a transfer of general
legislative power, but rather as the grant of the
authority to prescribed local regulations, according to
immemorial practice, subject of course to the
interposition of the superior in cases of necessity."
(Stoutenburgh vs. Hennick,supra.) On quite the same
principle, Congress is powered to delegate legislative
power to such agencies in the territories of the United
States as it may select. A territory stands in the same
relation to Congress as a municipality or city to the state
government. (United States vs. Heinszen [1907], 206 U.
S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann.
Cas., 688; Dorr vs. United States [1904], 195 U.S., 138;
24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.)
Courts have also sustained the delegation of legislative
power to the people at large. Some authorities maintain
that this may not be done (12 C. J., pp. 841, 842; 6 R. C.
L., p. 164, citing People vs. Kennedy [1913], 207 N. Y.,
533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the
question of whether or not a state has ceased to be
republican in form because of its adoption of the
initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel.
Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377;
32 Sup. Cet. Rep., 224), and as the constitutionality of
such laws has been looked upon with favor by certain
progressive courts, the sting of the decisions of the more
conservative courts has been pretty well drawn.
(Opinions of the Justices [1894], 160 Mass., 586; 36 N.
E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57
Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N.
S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.)
Doubtless, also, legislative power may be delegated by
the Constitution itself. Section 14, paragraph 2, of article
VI of the Constitution of the Philippines provides that
"The National Assembly may by law authorize the
President, subject to such limitations and restrictions as
it may impose, to fix within specified limits, tariff rates,
import or export quotas, and tonnage and wharfage
dues." And section 16 of the same article of the
Constitution provides that "In times of war or other
national emergency, the National Assembly may by law
authorize the President, for a limited period and subject
to such restrictions as it may prescribed, to promulgate
rules and regulations to carry out a declared national
policy." It is beyond the scope of this decision to
determine whether or not, in the absence of the
foregoing constitutional provisions, the President could
be authorized to exercise the powers thereby vested in
him. Upon the other hand, whatever doubt may have
existed has been removed by the Constitution itself.
The case before us does not fall under any of the
exceptions hereinabove mentioned.
The challenged section of Act No. 4221 in section 11
which reads as follows:
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This Act shall apply only in those provinces in which the
respective provincial boards have provided for the salary
of a probation officer at rates not lower than those now
provided for provincial fiscals. Said probation officer
shall be appointed by the Secretary of Justice and shall
be subject to the direction of the Probation Office.
(Emphasis ours.)
In testing whether a statute constitute an undue
delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its
terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of
any other appointee or delegate of the legislature. (6 R.
C. L., p. 165.) In the United States vs. Ang Tang Ho
([1922], 43 Phil., 1), this court adhered to the foregoing
rule when it held an act of the legislature void in so far
as it undertook to authorize the Governor-General, in
his discretion, to issue a proclamation fixing the price of
rice and to make the sale of it in violation of the
proclamation a crime. (See and cf. Companñ ia General de
Tabacos vs. Board of Public Utility Commissioners
[1916], 34 Phil., 136.) The general rule, however, is
limited by another rule that to a certain extent matters
of detail may be left to be filled in by rules and
regulations to be adopted or promulgated by executive
officers and administrative boards. (6 R. C. L., pp. 177-
179.)
For the purpose of Probation Act, the provincial boards
may be regarded as administrative bodies endowed
with power to determine when the Act should take
effect in their respective provinces. They are the agents
or delegates of the legislature in this respect. The rules
governing delegation of legislative power to
administrative and executive officers are applicable or
are at least indicative of the rule which should be here
adopted. An examination of a variety of cases on
delegation of power to administrative bodies will show
that the ratio decidendi is at variance but, it can be
broadly asserted that the rationale revolves around the
presence or absence of a standard or rule of action — or
the sufficiency thereof — in the statute, to aid the
delegate in exercising the granted discretion. In some
cases, it is held that the standard is sufficient; in others
that is insufficient; and in still others that it is entirely
lacking. As a rule, an act of the legislature is incomplete
and hence invalid if it does not lay down any rule or
definite standard by which the administrative officer or
board may be guided in the exercise of the discretionary
powers delegated to it. (See Schecter vs. United States
[1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep.,
837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co.
[1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500
and cases cited. See also R. C. L., title "Constitutional
Law", sec 174.) In the case at bar, what rules are to
guide the provincial boards in the exercise of their
discretionary power to determine whether or not the
Probation Act shall apply in their respective provinces?
What standards are fixed by the Act? We do not find any
and none has been pointed to us by the respondents.
The probation Act does not, by the force of any of its
provisions, fix and impose upon the provincial boards
any standard or guide in the exercise of their
discretionary power. What is granted, if we may use the
language of Justice Cardozo in the recent case of
Schecter, supra, is a "roving commission" which enables
the provincial boards to exercise arbitrary discretion. By
section 11 if the Act, the legislature does not seemingly
on its own authority extend the benefits of the
Probation Act to the provinces but in reality leaves the
entire matter for the various provincial boards to
determine. In other words, the provincial boards of the
various provinces are to determine for themselves,
whether the Probation Law shall apply to their
provinces or not at all. The applicability and application
of the Probation Act are entirely placed in the hands of
the provincial boards. If the provincial board does not
wish to have the Act applied in its province, all that it
has to do is to decline to appropriate the needed
amount for the salary of a probation officer. The plain
language of the Act is not susceptible of any other
interpretation. This, to our minds, is a virtual surrender
of legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between
the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be,
and conferring an authority or discretion as to its
execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid
objection can be made." (Cincinnati, W. & Z. R. Co. vs.
Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See
also, Sutherland on Statutory Construction, sec 68.) To
the same effect are the decision of this court
in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial
Board of Mindoro ([1919],39 Phil., 660) and Cruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these
cases, this court sustained the validity of the law
conferring upon the Governor-General authority to
adjust provincial and municipal boundaries. In the
second case, this court held it lawful for the legislature
to direct non-Christian inhabitants to take up their
habitation on unoccupied lands to be selected by the
provincial governor and approved by the provincial
board. In the third case, it was held proper for the
legislature to vest in the Governor-General authority to
suspend or not, at his discretion, the prohibition of the
importation of the foreign cattle, such prohibition to be
raised "if the conditions of the country make this
advisable or if deceased among foreign cattle has ceased
to be a menace to the agriculture and livestock of the
lands."
It should be observed that in the case at bar we are not
concerned with the simple transference of details of
execution or the promulgation by executive or
administrative officials of rules and regulations to carry
into effect the provisions of a law. If we were, recurrence
to our own decisions would be sufficient. (U. S. vs.
Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29
Phil., 119; Alegre vs. Collector of Customs [1929], 53
Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil.,
446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs.
Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be
made to the effect as law after it leaves the hands of the
legislature. It is true that laws may be made effective on
certain contingencies, as by proclamation of the
executive or the adoption by the people of a particular
community (6 R. C. L., 116, 170-172; Cooley,
Constitutional Limitations, 8th ed., Vol. I, p. 227). In
Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed.,
253), the Supreme Court of the United State ruled that
the legislature may delegate a power not legislative
which it may itself rightfully exercise.(Vide, also,
Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N.
W., 738; 31 L. R. A., 112.) The power to ascertain facts is
such a power which may be delegated. There is nothing
essentially legislative in ascertaining the existence of
facts or conditions as the basis of the taking into effect
of a law. That is a mental process common to all
branches of the government. (Dowling vs. Lancashire
Ins. Co., supra; In re Village of North Milwaukee [1896],
93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs.
Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs.
Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed.,
294.) Notwithstanding the apparent tendency, however,
to relax the rule prohibiting delegation of legislative
authority on account of the complexity arising from
162
social and economic forces at work in this modern
industrial age (Pfiffner, Public Administration [1936] ch.
XX; Laski, "The Mother of Parliaments", foreign Affairs,
July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-
Gun Politics", in Harper's Monthly Magazine, July, 1930,
Vol. CLXI, pp. 147, 152), the orthodox pronouncement of
Judge Cooley in his work on Constitutional Limitations
finds restatement in Prof. Willoughby's treatise on the
Constitution of the United States in the following
language — speaking of declaration of legislative power
to administrative agencies: "The principle which
permits the legislature to provide that the
administrative agent may determine when the
circumstances are such as require the application of a
law is defended upon the ground that at the time this
authority is granted, the rule of public policy, which is
the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty
to do, determines that, under given circumstances,
certain executive or administrative action is to be taken,
and that, under other circumstances, different of no
action at all is to be taken. What is thus left to the
administrative official is not the legislative
determination of what public policy demands, but
simply the ascertainment of what the facts of the case
require to be done according to the terms of the law by
which he is governed." (Willoughby on the Constitution
of the United States, 2nd ed., Vol. II, p. 1637.) In Miller
vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct.
Rep., 228; 27 Law. ed., 971, 974), it was said: "The
efficiency of an Act as a declaration of legislative will
must, of course, come from Congress, but the
ascertainment of the contingency upon which the Act
shall take effect may be left to such agencies as it may
designate." (See, also, 12 C.J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal.,
343, 258.) The legislature, then may provide that a
contingencies leaving to some other person or body the
power to determine when the specified contingencies
has arisen. But, in the case at bar, the legislature has not
made the operation of the Prohibition Act contingent
upon specified facts or conditions to be ascertained by
the provincial board. It leaves, as we have already said,
the entire operation or non-operation of the law upon
the provincial board. the discretion vested is arbitrary
because it is absolute and unlimited. A provincial board
need not investigate conditions or find any fact, or await
the happening of any specified contingency. It is bound
by no rule, — limited by no principle of expendiency
announced by the legislature. It may take into
consideration certain facts or conditions; and, again, it
may not. It may have any purpose or no purpose at all. It
need not give any reason whatsoever for refusing or
failing to appropriate any funds for the salary of a
probation officer. This is a matter which rest entirely at
its pleasure. The fact that at some future time — we
cannot say when — the provincial boards may
appropriate funds for the salaries of probation officers
and thus put the law into operation in the various
provinces will not save the statute. The time of its taking
into effect, we reiterate, would yet be based solely upon
the will of the provincial boards and not upon the
happening of a certain specified contingency, or upon
the ascertainment of certain facts or conditions by a
person or body other than legislature itself.
The various provincial boards are, in practical effect,
endowed with the power of suspending the operation of
the Probation Law in their respective provinces. In some
jurisdiction, constitutions provided that laws may be
suspended only by the legislature or by its authority.
Thus, section 28, article I of the Constitution of Texas
provides that "No power of suspending laws in this state
shall be exercised except by the legislature"; and section
26, article I of the Constitution of Indiana provides
"That the operation of the laws shall never be
suspended, except by authority of the General
Assembly." Yet, even provisions of this sort do not confer
absolute power of suspension upon the legislature.
While it may be undoubted that the legislature may
suspend a law, or the execution or operation of a law, a
law may not be suspended as to certain individuals only,
leaving the law to be enjoyed by others. The suspension
must be general, and cannot be made for individual
cases or for particular localities. In Holden vs.
James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178),
it was said:
By the twentieth article of the declaration of rights in
the constitution of this commonwealth, it is declared
that the power of suspending the laws, or the execution
of the laws, ought never to be exercised but by the
legislature, or by authority derived from it, to be
exercised in such particular cases only as the legislature
shall expressly provide for. Many of the articles in that
declaration of rights were adopted from the Magna
Charta of England, and from the bill of rights passed in
the reign of William and Mary. The bill of rights contains
an enumeration of the oppressive acts of James II,
tending to subvert and extirpate the protestant religion,
and the laws and liberties of the kingdom; and the first
of them is the assuming and exercising a power of
dispensing with and suspending the laws, and the
execution of the laws without consent of parliament.
The first article in the claim or declaration of rights
contained in the statute is, that the exercise of such
power, by legal authority without consent of parliament,
is illegal. In the tenth section of the same statute it is
further declared and enacted, that "No dispensation
by non obstante of or to any statute, or part thereof,
should be allowed; but the same should be held void
and of no effect, except a dispensation be allowed of in
such statute." There is an implied reservation of
authority in the parliament to exercise the power here
mentioned; because, according to the theory of the
English Constitution, "that absolute despotic power,
which must in all governments reside somewhere," is
intrusted to the parliament: 1 Bl. Com., 160.
The principles of our government are widely different in
this particular. Here the sovereign and absolute power
resides in the people; and the legislature can only
exercise what is delegated to them according to the
constitution. It is obvious that the exercise of the power
in question would be equally oppressive to the subject,
and subversive of his right to protection, "according to
standing laws," whether exercised by one man or by a
number of men. It cannot be supposed that the people
when adopting this general principle from the English
bill of rights and inserting it in our constitution,
intended to bestow by implication on the general court
one of the most odious and oppressive prerogatives of
the ancient kings of England. It is manifestly contrary to
the first principles of civil liberty and natural justice,
and to the spirit of our constitution and laws, that any
one citizen should enjoy privileges and advantages
which are denied to all others under like circumstances;
or that ant one should be subject to losses, damages,
suits, or actions from which all others under like
circumstances are exempted.
To illustrate the principle: A section of a statute relative
to dogs made the owner of any dog liable to the owner
of domestic animals wounded by it for the damages
without proving a knowledge of it vicious disposition.
By a provision of the act, power was given to the board
of supervisors to determine whether or not during the
current year their county should be governed by the
provisions of the act of which that section constituted a
part. It was held that the legislature could not confer
that power. The court observed that it could no more
163
confer such a power than to authorize the board of
supervisors of a county to abolish in such county the
days of grace on commercial paper, or to suspend the
statute of limitations. (Slinger vs. Henneman [1875], 38
Wis., 504.) A similar statute in Missouri was held void
for the same reason in State vs. Field ([1853, 17 Mo.,
529;59 Am. Dec., 275.) In that case a general statute
formulating a road system contained a provision that "if
the county court of any county should be of opinion that
the provisions of the act should not be enforced, they
might, in their discretion, suspend the operation of the
same for any specified length of time, and thereupon the
act should become inoperative in such county for the
period specified in such order; and thereupon order the
roads to be opened and kept in good repair, under the
laws theretofore in force." Said the court: ". . . this act, by
its own provisions, repeals the inconsistent provisions
of a former act, and yet it is left to the county court to
say which act shall be enforce in their county. The act
does not submit the question to the county court as an
original question, to be decided by that tribunal,
whether the act shall commence its operation within the
county; but it became by its own terms a law in every
county not excepted by name in the act. It did not, then,
require the county court to do any act in order to give it
effect. But being the law in the county, and having by its
provisions superseded and abrogated the inconsistent
provisions of previous laws, the county court is . . .
empowered, to suspend this act and revive the repealed
provisions of the former act. When the question is
before the county court for that tribunal to determine
which law shall be in force, it is urge before us that the
power then to be exercised by the court is strictly
legislative power, which under our constitution, cannot
be delegated to that tribunal or to any other body of
men in the state. In the present case, the question is not
presented in the abstract; for the county court of Saline
county, after the act had been for several months in
force in that county, did by order suspend its operation;
and during that suspension the offense was committed
which is the subject of the present indictment . . . ."
(See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular
locality different from those applicable to other
localities and, while recognizing the force of the
principle hereinabove expressed, courts in may
jurisdiction have sustained the constitutionality of the
submission of option laws to the vote of the people. (6
R.C.L., p. 171.) But option laws thus sustained treat of
subjects purely local in character which should receive
different treatment in different localities placed under
different circumstances. "They relate to subjects which,
like the retailing of intoxicating drinks, or the running at
large of cattle in the highways, may be differently
regarded in different localities, and they are sustained
on what seems to us the impregnable ground, that the
subject, though not embraced within the ordinary
powers of municipalities to make by-laws and
ordinances, is nevertheless within the class of public
regulations, in respect to which it is proper that the
local judgment should control." (Cooley on
Constitutional Limitations, 5th ed., p. 148.) So that,
while we do not deny the right of local self-government
and the propriety of leaving matters of purely local
concern in the hands of local authorities or for the
people of small communities to pass upon, we believe
that in matters of general of general legislation like that
which treats of criminals in general, and as regards the
general subject of probation, discretion may not be
vested in a manner so unqualified and absolute as
provided in Act No. 4221. True, the statute does not
expressly state that the provincial boards may suspend
the operation of the Probation Act in particular
provinces but, considering that, in being vested with the
authority to appropriate or not the necessary funds for
the salaries of probation officers, they thereby are given
absolute discretion to determine whether or not the law
should take effect or operate in their respective
provinces, the provincial boards are in reality
empowered by the legislature to suspend the operation
of the Probation Act in particular provinces, the Act to
be held in abeyance until the provincial boards should
decide otherwise by appropriating the necessary funds.
The validity of a law is not tested by what has been done
but by what may be done under its provisions. (Walter
E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil.,
259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be
granted to the legislature not only in the expression of
what may be termed legislative policy but in the
elaboration and execution thereof. "Without this power,
legislation would become oppressive and yet imbecile."
(People vs. Reynolds, 5 Gilman, 1.) It has been said that
popular government lives because of the inexhaustible
reservoir of power behind it. It is unquestionable that
the mass of powers of government is vested in the
representatives of the people and that these
representatives are no further restrained under our
system than by the express language of the instrument
imposing the restraint, or by particular provisions
which by clear intendment, have that effect. (Angara vs.
Electoral Commission [1936], 35 Off. Ga., 23;
Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.)
But, it should be borne in mind that a constitution is
both a grant and a limitation of power and one of these
time-honored limitations is that, subject to certain
exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes
an improper and unlawful delegation of legislative
authority to the provincial boards and is, for this reason,
unconstitutional and void.
3. It is also contended that the Probation Act violates the
provisions of our Bill of Rights which prohibits the denial
to any person of the equal protection of the laws (Act. III,
sec. 1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution
is a restraint on all the tree grand departments of our
government and on the subordinate instrumentalities
and subdivision thereof, and on many constitutional
power, like the police power, taxation and eminent
domain. The equal protection of laws, sententiously
observes the Supreme Court of the United States, "is a
pledge of the protection of equal laws." (Yick Wo vs.
Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup.
Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510;
39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what
may be regarded as a denial of the equal protection of
the laws in a question not always easily determined. No
rule that will cover every case can be formulated.
(Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S.,
540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class
legislation discriminating against some and favoring
others in prohibited. But classification on a reasonable
basis, and nor made arbitrarily or capriciously, is
permitted. (Finely vs. California [1911], 222 U. S., 28; 56
Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs.
Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40
Phil., 136.) The classification, however, to be reasonable
must be based on substantial distinctions which make
real differences; it must be germane to the purposes of
the law; it must not be limited to existing conditions
only, and must apply equally to each member of the
class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353;
133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489;
State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150;
Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S.,
164
61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann.
Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough
[1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed.,
374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400;
30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas.,
1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J.,
pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may
be said to flow from the unwarranted delegation of
legislative power, although perhaps this is not
necessarily the result in every case. Adopting the
example given by one of the counsel for the petitioners
in the course of his oral argument, one province may
appropriate the necessary fund to defray the salary of a
probation officer, while another province may refuse or
fail to do so. In such a case, the Probation Act would be
in operation in the former province but not in the latter.
This means that a person otherwise coming within the
purview of the law would be liable to enjoy the benefits
of probation in one province while another person
similarly situated in another province would be denied
those same benefits. This is obnoxious discrimination.
Contrariwise, it is also possible for all the provincial
boards to appropriate the necessary funds for the
salaries of the probation officers in their respective
provinces, in which case no inequality would result for
the obvious reason that probation would be in
operation in each and every province by the affirmative
action of appropriation by all the provincial boards. On
that hypothesis, every person coming within the
purview of the Probation Act would be entitled to avail
of the benefits of the Act. Neither will there be any
resulting inequality if no province, through its
provincial board, should appropriate any amount for the
salary of the probation officer — which is the situation
now — and, also, if we accept the contention that, for
the purpose of the Probation Act, the City of Manila
should be considered as a province and that the
municipal board of said city has not made any
appropriation for the salary of the probation officer.
These different situations suggested show, indeed, that
while inequality may result in the application of the law
and in the conferment of the benefits therein provided,
inequality is not in all cases the necessary result. But
whatever may be the case, it is clear that in section 11 of
the Probation Act creates a situation in which
discrimination and inequality are permitted or allowed.
There are, to be sure, abundant authorities requiring
actual denial of the equal protection of the law before
court should assume the task of setting aside a law
vulnerable on that score, but premises and
circumstances considered, we are of the opinion that
section 11 of Act No. 4221 permits of the denial of the
equal protection of the law and is on that account bad.
We see no difference between a law which permits of
such denial. A law may appear to be fair on its face and
impartial in appearance, yet, if it permits of unjust and
illegal discrimination, it is within the constitutional
prohibitions. (By analogy, Chy Lung vs. Freeman [1876],
292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor
[1876], 92 U. S., 259; 23 Law. ed., 543;Ex parte Virginia
[1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs.
Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon
Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed.,
1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law.
ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218;
18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs.
Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55
Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247
U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In
other words, statutes may be adjudged unconstitutional
because of their effect in operation (General Oil Co. vs.
Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52
Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt.,
167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the law has
the effect of denying the equal protection of the law it is
unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases,
109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo
vs. Hopkins, supra; State vs. Montgomery, 94 Me., 192;
47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis.,
585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.)
Under section 11 of the Probation Act, not only may said
Act be in force in one or several provinces and not be in
force in other provinces, but one province may
appropriate for the salary of the probation officer of a
given year — and have probation during that year —
and thereafter decline to make further appropriation,
and have no probation is subsequent years. While this
situation goes rather to the abuse of discretion which
delegation implies, it is here indicated to show that the
Probation Act sanctions a situation which is intolerable
in a government of laws, and to prove how easy it is,
under the Act, to make the guaranty of the equality
clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry.
Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666;
17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents
on the case of Ocampo vs. United States ([1914], 234 U.
S., 91; 58 Law. ed., 1231). In that case, the Supreme
Court of the United States affirmed the decision of this
court (18 Phil., 1) by declining to uphold the contention
that there was a denial of the equal protection of the
laws because, as held in Missouri vs. Lewis (Bowman vs.
Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed.,
991), the guaranty of the equality clause does not
require territorial uniformity. It should be observed,
however, that this case concerns the right to preliminary
investigations in criminal cases originally granted by
General Orders No. 58. No question of legislative
authority was involved and the alleged denial of the
equal protection of the laws was the result of the
subsequent enactment of Act No. 612, amending the
charter of the City of Manila (Act No. 813) and providing
in section 2 thereof that "in cases triable only in the
court of first instance of the City of Manila, the
defendant . . . shall not be entitled as of right to a
preliminary examination in any case where the
prosecuting attorney, after a due investigation of the
facts . . . shall have presented an information against him
in proper form . . . ." Upon the other hand, an analysis of
the arguments and the decision indicates that the
investigation by the prosecuting attorney — although
not in the form had in the provinces — was considered a
reasonable substitute for the City of Manila, considering
the peculiar conditions of the city as found and taken
into account by the legislature itself.
Reliance is also placed on the case of Missouri vs.
Lewis, supra. That case has reference to a situation
where the constitution of Missouri permits appeals to
the Supreme Court of the state from final judgments of
any circuit court, except those in certain counties for
which counties the constitution establishes a separate
court of appeals called St. Louis Court of Appeals. The
provision complained of, then, is found in the
constitution itself and it is the constitution that makes
the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation
Act is unconstitutional and void because it is also
repugnant to equal-protection clause of our
Constitution.
Section 11 of the Probation Act being unconstitutional
and void for the reasons already stated, the next inquiry
is whether or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is
against any mutilation of a statute, and the courts will
resort to elimination only where an unconstitutional
provision is interjected into a statute otherwise valid,
165
and is so independent and separable that its removal
will leave the constitutional features and purposes of
the act substantially unaffected by the process. (Riccio
vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55
Atl., 1109, quoted in Williams vs. Standard Oil Co.
[1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup.
Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs.
Moir ([1913], 25 Phil., 44, 47), this court stated the well-
established rule concerning partial invalidity of statutes
in the following language:
. . . where part of the a statute is void, as repugnant to
the Organic Law, while another part is valid, the valid
portion, if separable from the valid, may stand and be
enforced. But in order to do this, the valid portion must
be in so far independent of the invalid portion that it is
fair to presume that the Legislative would have enacted
it by itself if they had supposed that they could not
constitutionally enact the other. (Mutual Loan Co. vs.
Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446;
Supervisors of Holmes Co. vs. Black Creek Drainage
District, 99 Miss., 739; 55 Sou., 963.) Enough must
remain to make a complete, intelligible, and valid
statute, which carries out the legislative intent. (Pearson
vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions
must be eliminated without causing results affecting the
main purpose of the Act, in a manner contrary to the
intention of the Legislature. (State vs. A. C. L. R., Co., 56
Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla.,
255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs.
Union Sewer Pipe Co., 184 U. S., 540, 565; People vs.
Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N.
S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.)
The language used in the invalid part of a statute can
have no legal force or efficacy for any purpose whatever,
and what remains must express the legislative will,
independently of the void part, since the court has no
power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N.
W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs.
Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers'
Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law.
ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the
Probation Act applicable only in those provinces in
which the respective provincial boards provided for the
salaries of probation officers were inoperative on
constitutional grounds, the remainder of the Act would
still be valid and may be enforced. We should be inclined
to accept the suggestions but for the fact that said
section is, in our opinion, is inseparably linked with the
other portions of the Act that with the elimination of the
section what would be left is the bare idealism of the
system, devoid of any practical benefit to a large
number of people who may be deserving of the
intended beneficial result of that system. The clear
policy of the law, as may be gleaned from a careful
examination of the whole context, is to make the
application of the system dependent entirely upon the
affirmative action of the different provincial boards
through appropriation of the salaries for probation
officers at rates not lower than those provided for
provincial fiscals. Without such action on the part of the
various boards, no probation officers would be
appointed by the Secretary of Justice to act in the
provinces. The Philippines is divided or subdivided into
provinces and it needs no argument to show that if not
one of the provinces — and this is the actual situation
now — appropriate the necessary fund for the salary of
a probation officer, probation under Act No. 4221 would
be illusory. There can be no probation without a
probation officer. Neither can there be a probation
officer without the probation system.
Section 2 of the Acts provides that the probation officer
shall supervise and visit the probationer. Every
probation officer is given, as to the person placed in
probation under his care, the powers of the police
officer. It is the duty of the probation officer to see that
the conditions which are imposed by the court upon the
probationer under his care are complied with. Among
those conditions, the following are enumerated in
section 3 of the Act:
That the probationer (a) shall indulge in no injurious or
vicious habits;
(b) Shall avoid places or persons of disreputable or
harmful character;
(c) Shall report to the probation officer as directed by
the court or probation officers;
(d) Shall permit the probation officer to visit him at
reasonable times at his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on
the part of the probation officer concerning his conduct
or condition; "(f) Shall endeavor to be employed
regularly; "(g) Shall remain or reside within a specified
place or locality;
(f) Shall make reparation or restitution to the aggrieved
parties for actual damages or losses caused by his
offense;
(g) Shall comply with such orders as the court may from
time to time make; and
(h) Shall refrain from violating any law, statute,
ordinance, or any by-law or regulation, promulgated in
accordance with law.
The court is required to notify the probation officer in
writing of the period and terms of probation. Under
section 4, it is only after the period of probation, the
submission of a report of the probation officer and
appropriate finding of the court that the probationer
has complied with the conditions of probation that
probation may be definitely terminated and the
probationer finally discharged from supervision. Under
section 5, if the court finds that there is non-compliance
with said conditions, as reported by the probation
officer, it may issue a warrant for the arrest of the
probationer and said probationer may be committed
with or without bail. Upon arraignment and after an
opportunity to be heard, the court may revoke, continue
or modify the probation, and if revoked, the court shall
order the execution of the sentence originally imposed.
Section 6 prescribes the duties of probation officers: "It
shall be the duty of every probation officer to furnish to
all persons placed on probation under his supervision a
statement of the period and conditions of their
probation, and to instruct them concerning the same; to
keep informed concerning their conduct and condition;
to aid and encourage them by friendly advice and
admonition, and by such other measures, not
inconsistent with the conditions imposed by court as
may seem most suitable, to bring about improvement in
their conduct and condition; to report in writing to the
court having jurisdiction over said probationers at least
once every two months concerning their conduct and
condition; to keep records of their work; make such
report as are necessary for the information of the
Secretary of Justice and as the latter may require; and to
perform such other duties as are consistent with the
functions of the probation officer and as the court or
judge may direct. The probation officers provided for in
this Act may act as parole officers for any penal or
reformatory institution for adults when so requested by
the authorities thereof, and, when designated by the
Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one
Hundred and Three, without additional compensation."
It is argued, however, that even without section 11
probation officers maybe appointed in the provinces
under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and
subject to its supervision and control, a Probation Office
166
under the direction of a Chief Probation Officer to be
appointed by the Governor-General with the advise and
consent of the Senate who shall receive a salary of four
eight hundred pesos per annum. To carry out this Act
there is hereby appropriated out of any funds in the
Insular Treasury not otherwise appropriated, the sum
of fifty thousand pesos to be disbursed by the Secretary
of Justice, who is hereby authorized to appoint
probation officers and the administrative personnel of
the probation officer under civil service regulations
from among those who possess the qualifications,
training and experience prescribed by the Bureau of
Civil Service, and shall fix the compensation of such
probation officers and administrative personnel until
such positions shall have been included in the
Appropriation Act.
But the probation officers and the administrative
personnel referred to in the foregoing section are clearly
not those probation officers required to be appointed
for the provinces under section 11. It may be
said, reddendo singula singulis, that the probation
officers referred to in section 10 above-quoted are to act
as such, not in the various provinces, but in the central
office known as the Probation Office established in the
Department of Justice, under the supervision of the
Chief Probation Officer. When the law provides that "the
probation officer" shall investigate and make reports to
the court (secs. 1 and 4); that "the probation officer"
shall supervise and visit the probationer (sec. 2; sec. 6,
par. d); that the probationer shall report to the
"probationer officer" (sec. 3, par. c.), shall allow "the
probationer officer" to visit him (sec. 3, par. d), shall
truthfully answer any reasonable inquiries on the part
of "the probation officer" concerning his conduct or
condition (sec. 3, par. 4); that the court shall notify "the
probation officer" in writing of the period and terms of
probation (sec. 3, last par.), it means the probation
officer who is in charge of a particular probationer in a
particular province. It never could have been intention
of the legislature, for instance, to require the
probationer in Batanes, to report to a probationer
officer in the City of Manila, or to require a probation
officer in Manila to visit the probationer in the said
province of Batanes, to place him under his care, to
supervise his conduct, to instruct him concerning the
conditions of his probation or to perform such other
functions as are assigned to him by law.
That under section 10 the Secretary of Justice may
appoint as many probation officers as there are
provinces or groups of provinces is, of course possible.
But this would be arguing on what the law may be or
should be and not on what the law is. Between is and
ought there is a far cry. The wisdom and propriety of
legislation is not for us to pass upon. We may think a
law better otherwise than it is. But much as has been
said regarding progressive interpretation and judicial
legislation we decline to amend the law. We are not
permitted to read into the law matters and provisions
which are not there. Not for any purpose — not even to
save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of
the law is not to make the Insular Government defray
the salaries of probation officers in the provinces but to
make the provinces defray them should they desire to
have the Probation Act apply thereto. The sum of
P50,000, appropriated "to carry out the purposes of this
Act", is to be applied, among other things, for the
salaries of probation officers in the central office at
Manila. These probation officers are to receive such
compensations as the Secretary of Justice may fix "until
such positions shall have been included in the
Appropriation Act". It was the intention of the
legislature to empower the Secretary of Justice to fix the
salaries of the probation officers in the provinces or
later on to include said salaries in an appropriation act.
Considering, further, that the sum of P50,000
appropriated in section 10 is to cover, among other
things, the salaries of the administrative personnel of
the Probation Office, what would be left of the amount
can hardly be said to be sufficient to pay even nominal
salaries to probation officers in the provinces. We take
judicial notice of the fact that there are 48 provinces in
the Philippines and we do not think it is seriously
contended that, with the fifty thousand pesos
appropriated for the central office, there can be in each
province, as intended, a probation officer with a salary
not lower than that of a provincial fiscal. If this a correct,
the contention that without section 11 of Act No. 4221
said act is complete is an impracticable thing under the
remainder of the Act, unless it is conceded that in our
case there can be a system of probation in the provinces
without probation officers.
Probation as a development of a modern penology is a
commendable system. Probation laws have been
enacted, here and in other countries, to permit what
modern criminologist call the "individualization of the
punishment", the adjustment of the penalty to the
character of the criminal and the circumstances of his
particular case. It provides a period of grace in order to
aid in the rehabilitation of a penitent offender. It is
believed that, in any cases, convicts may be reformed
and their development into hardened criminals aborted.
It, therefore, takes advantage of an opportunity for
reformation and avoids imprisonment so long as the
convicts gives promise of reform. (United States vs.
Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309;
312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F.
[2d], 664, 665.) The Welfare of society is its chief end
and aim. The benefit to the individual convict is merely
incidental. But while we believe that probation is
commendable as a system and its implantation into the
Philippines should be welcomed, we are forced by our
inescapable duty to set the law aside because of the
repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to
consider the different aspects presented by able counsel
for both parties, as well in their memorandums as in
their oral argument. We have examined the cases
brought to our attention, and others we have been able
to reach in the short time at our command for the study
and deliberation of this case. In the examination of the
cases and in then analysis of the legal principles
involved we have inclined to adopt the line of action
which in our opinion, is supported better reasoned
authorities and is more conducive to the general
welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil.,
136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases
brought to our attention, except where the point or
principle is settled directly or by clear implication by
the more authoritative pronouncements of the Supreme
Court of the United States. This line of approach is
justified because:
(a) The constitutional relations between the Federal and
the State governments of the United States and the dual
character of the American Government is a situation
which does not obtain in the Philippines;
(b) The situation of s state of the American Union of the
District of Columbia with reference to the Federal
Government of the United States is not the situation of
the province with respect to the Insular Government
(Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution
of the United States; Sims vs. Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial
organizations of the United States do not embrace the
integrated judicial system of the Philippines
167
(Schneckenburger vs. Moran [1936], 35 Off. Gaz., p.
1317);
(d) "General propositions do not decide concrete cases"
(Justice Holmes in Lochner vs. New York [1904], 198 U.
S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace
with . . . new developments of times and circumstances"
(Chief Justice Waite in Pensacola Tel. Co. vs. Western
Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale
Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142),
fundamental principles should be interpreted having in
view existing local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and
void and the writ of prohibition is, accordingly, granted.
Without any pronouncement regarding costs. So
ordered.
FACIAL CHALLENGE
JOSEPH EJERCITO ESTRADA, petitioner,
vs. SANDIGANBAYAN (Third Division) and PEOPLE
OF THE PHILIPPINES,respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes
the full fury of his pen in defense of the rights of the
individual from the vast powers of the State and the
inroads of societal pressure. But even as he draws a
sacrosanct line demarcating the limits on individuality
beyond which the State cannot tread - asserting that
"individual spontaneity" must be allowed to flourish
with very little regard to social interference - he
veritably acknowledges that the exercise of rights and
liberties is imbued with a civic obligation, which society
is justified in enforcing at all cost, against those who
would endeavor to withhold fulfillment. Thus he says -
The sole end for which mankind is warranted,
individually or collectively, in interfering with the liberty
of action of any of their number, is self-protection. The
only purpose for which power can be rightfully exercised
over any member of a civilized community, against his
will, is to prevent harm to others.
Parallel to individual liberty is the natural and
illimitable right of the State to self-preservation. With
the end of maintaining the integrity and cohesiveness of
the body politic, it behooves the State to formulate a
system of laws that would compel obeisance to its
collective wisdom and inflict punishment for non-
observance.
The movement from Mill's individual liberalism to
unsystematic collectivism wrought changes in the social
order, carrying with it a new formulation of
fundamental rights and duties more attuned to the
imperatives of contemporary socio-political
ideologies. In the process, the web of rights and State
impositions became tangled and obscured, enmeshed in
threads of multiple shades and colors, the skein
irregular and broken. Antagonism, often outright
collision, between the law as the expression of the will
of the State, and the zealous attempts by its members to
preserve their individuality and dignity, inevitably
followed. It is when individual rights are pitted against
State authority that judicial conscience is put to its
severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking
official to be prosecuted under RA 7080 (An Act
Defining and Penalizing the Crime of Plunder),[1]as
amended by RA 7659,[2] wishes to impress upon us that
the assailed law is so defectively fashioned that it
crosses that thin but distinct line which divides the valid
from the constitutionally infirm. He therefore makes a
stringent call for this Court to subject the Plunder Law
to the crucible of constitutionality mainly because,
according to him, (a) it suffers from the vice of
vagueness; (b) it dispenses with the "reasonable doubt"
standard in criminal prosecutions; and, (c) it abolishes
the element of mens rea in crimes already punishable
under The Revised Penal Code, all of which are
purportedly clear violations of the fundamental rights of
the accused to due process and to be informed of the
nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed
by petitioner to have transgressed constitutional
boundaries are Secs. 1, par. (d), 2 and 4 which are
reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset,
property, business, enterprise or material possession of
any person within the purview of Section Two (2) hereof,
acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business
associates by any combination or series of the following
means or similar schemes:
(1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public
treasury;
(2) By receiving, directly or indirectly, any commission,
gift, share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in
connection with any government contract or project or
by reason of the office or position of the public office
concerned;
(3) By the illegal or fraudulent conveyance or disposition
of assets belonging to the National Government or any of
its subdivisions, agencies or instrumentalities, or
government owned or controlled corporations and their
subsidiaries;
(4) By obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form of
interest or participation including the promise of future
employment in any business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or
implementation of decrees and orders intended to benefit
particular persons or special interests; or
(6) By taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage
and prejudice of the Filipino people and the Republic of
the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties.
- Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten
wealth through a combination or series of overt or
criminal acts as described in Section 1 (d) hereof, in the
aggregate amount or total value of at least fifty million
pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to
death. Any person who participated with the said public
officer in the commission of an offense contributing to the
crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and
extenuating circumstances as provided by
the Revised Penal Code shall be considered by the
court. The court shall declare any and all ill-gotten
wealth and their interests and other incomes and assets
including the properties and shares of stocks derived
from the deposit or investment thereof forfeited in favor
of the State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing
the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy
to amass, accumulate or acquire ill-gotten wealth, it
being sufficient to establish beyond reasonable doubt
168
a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy (underscoring
supplied).
On 4 April 2001 the Office of the Ombudsman filed
before the Sandiganbayan eight (8) separate
Informations, docketed as: (a) Crim. Case No. 26558, for
violation of RA 7080, as amended by RA 7659; (b) Crim.
Cases Nos. 26559 to 26562, inclusive, for violation of
Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA
3019 (Anti-Graft and Corrupt Practices
Act), respectively; (c) Crim. Case No. 26563, for violation
of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and
Ethical Standards for Public Officials and Employees); (d)
Crim. Case No. 26564, for Perjury (Art. 183 of The
Revised Penal Code); and, (e) Crim. Case No. 26565, for
Illegal Use Of An Alias (CA No. 142, as amended by RA
6085).
On 11 April 2001 petitioner filed an Omnibus Motion for
the remand of the case to the Ombudsman for
preliminary investigation with respect to specification
"d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the
offenses under specifications "a,""b," and "c" to give the
accused an opportunity to file counter-affidavits and
other documents necessary to prove lack of probable
cause. Noticeably, the grounds raised were only lack of
preliminary investigation,
reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The
purported ambiguity of the charges and the vagueness
of the law under which they are charged were never
raised in that Omnibus Motion thus indicating the
explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division,
issued a Resolution in Crim. Case No. 26558 finding that
"a probable cause for the offense of PLUNDER exists to
justify the issuance of warrants for the arrest of the
accused." On 25 June 2001 petitioner's motion for
reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the
Information in Crim. Case No. 26558 on the ground that
the facts alleged therein did not constitute an indictable
offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended
Information for Plunder charged more than one (1)
offense. On 21 June 2001 the Government filed
its Opposition to the Motion to Quash, and five (5) days
later or on 26 June 2001 petitioner submitted his Reply
to the Opposition. On 9 July 2001 the Sandiganbayan
denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral
arguments on 18 September 2001, the issues for
resolution in the instant petition for certiorari are: (a)
The Plunder Law is unconstitutional for being vague;
(b) The Plunder Law requires less evidence for proving
the predicate crimes of plunder and therefore violates
the rights of the accused to due process; and, (c)
Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of
Congress to so classify it.
Preliminarily, the whole gamut of legal concepts
pertaining to the validity of legislation is predicated on
the basic principle that a legislative measure is
presumed to be in harmony with the Constitution.
[3]
Courts invariably train their sights on this
fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to encroach
upon the duties and powers of another. Thus it has been
said that the presumption is based on the deference the
judicial branch accords to its coordinate branch - the
legislature.
If there is any reasonable basis upon which the
legislation may firmly rest, the courts must assume that
the legislature is ever conscious of the borders and
edges of its plenary powers, and has passed the law
with full knowledge of the facts and for the purpose of
promoting what is right and advancing the welfare of
the majority. Hence in determining whether the acts of
the legislature are in tune with the fundamental law,
courts should proceed with judicial restraint and act
with caution and forbearance. Every intendment of the
law must be adjudged by the courts in favor of its
constitutionality, invalidity being a measure of last
resort. In construing therefore the provisions of a
statute, courts must first ascertain whether an
interpretation is fairly possible to sidestep the question
of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon[4] we held
that as
long as there is some basis for the decision of the court,
the constitutionality of the challenged law will not be
touched and the case will be decided on other available
grounds. Yet the force of the presumption is not
sufficient to catapult a fundamentally deficient law into
the safe environs of constitutionality. Of course, where
the law clearly and palpably transgresses the hallowed
domain of the organic law, it must be struck down on
sight lest the positive commands of the fundamental law
be unduly eroded.
Verily, the onerous task of rebutting the presumption
weighs heavily on the party challenging the validity of
the statute. He must demonstrate beyond any tinge of
doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be no
finding of unconstitutionality. A doubt, even if well-
founded, will hardly suffice. As tersely put by Justice
Malcolm, "To doubt is to sustain."[5] And petitioner has
miserably failed in the instant case to discharge his
burden and overcome the presumption of
constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable
standards and well-defined parameters which would
enable the accused to determine the nature of his
violation. Section 2 is
sufficiently explicit in its description of the acts, conduct
and conditions required or forbidden, and prescribes
the elements of the crime with reasonable certainty and
particularity. Thus -
1. That the offender is a public officer who acts by himself
or in connivance with members of his family, relatives by
affinity or consanguinity, business associates,
subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten
wealth through a combination or series of the following
overt or criminal acts: (a) through misappropriation,
conversion, misuse, or malversation of public funds or
raids on the public treasury; (b) by receiving, directly or
indirectly, any commission, gift, share, percentage,
kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any
government contract or project or by reason of the office
or position of the public officer; (c) by the illegal or
fraudulent conveyance or disposition of assets belonging
to the NationalGovernment or any of its subdivisions,
agencies or instrumentalities of Government owned or
controlled corporations or their subsidiaries; (d) by
obtaining, receiving or accepting directly or indirectly
any shares of stock, equity or any other form of interest or
participation including the promise of future employment
in any business enterprise or undertaking; (e) by
establishing agricultural, industrial or commercial
monopolies or other combinations and/or
implementation of decrees and orders intended to benefit
169
particular persons or special interests; or (f) by taking
advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the
Philippines; and,
3. That the aggregate amount or total value of the ill-
gotten wealth amassed, accumulated or acquired is at
least P50,000,000.00.
As long as the law affords some comprehensible guide
or rule that would inform those who are subject to it
what conduct would render them liable to its penalties,
its validity will be sustained. It must sufficiently guide
the judge in its application; the counsel, in defending
one charged with its violation; and more importantly,
the accused, in identifying the realm of the proscribed
conduct. Indeed, it can be understood with little
difficulty that what the assailed statute punishes is the
act of a public officer in amassing or accumulating ill-
gotten wealth of at least P50,000,000.00 through a
series or combination of acts enumerated in Sec. 1, par.
(d), of the Plunder Law.
In fact, the amended Information itself closely tracks the
language of the law, indicating with reasonable certainty
the various elements of the offense which petitioner is
alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-
Director, EPIB, Office of the Ombudsman, hereby
accuses former PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a.
'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together
with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN
DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr.
Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane
Does, of the crime of Plunder, defined and penalized
under R.A. No. 7080, as amended by Sec. 12 of R.A. No.
7659, committed as follows:
That during the period from June, 1998 to January 2001,
in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito
Estrada, THEN A PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with
his co-accused, WHO ARE MEMBERS OF HIS FAMILY,
RELATIVES BY AFFINITY OR CONSANGUINITY,
BUSINESS ASSOCIATES, SUBORDINATES AND/OR
OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF
HIS OFFICIAL POSITION, AUTHORITY,
RELATIONSHIP, CONNECTION, OR INFLUENCE, did
then and there willfully, unlawfully and criminally
amass, accumulate and acquire BY HIMSELF,
DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount or TOTAL VALUE of FOUR BILLION
NINETY SEVEN MILLION EIGHT HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS
AND SEVENTEEN CENTAVOS(P4,097,804,173.17),
more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE AND TO
THE DAMAGE OF THE FILIPINO PEOPLE AND THE
REPUBLIC OF THE PHILIPPINES, through ANY OR
A combination OR A series of overt ORcriminal acts, OR
SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly,
on SEVERAL INSTANCES, MONEY IN THE AGGREGATE
AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION
PESOS (P545,000,000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE,
PERCENTAGE, KICKBACK OR ANY FORM OF
PECUNIARY BENEFIT, BY HIMSELF AND/OR in
connection with co-accused CHARLIE 'ATONG'
ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward
Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY,
for HIS OR THEIR PERSONAL gain and benefit, public
funds in the amount of ONE HUNDRED THIRTY
MILLION PESOS (P130,000,000.00), more or less,
representing a portion of the TWO HUNDRED MILLION
PESOS (P200,000,000.00) tobacco excise tax share
allocated for the province of Ilocos Sur under R.A. No.
7171, by himself and/orin connivance with co-accused
Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a.
Delia Rajas, AND OTHER JOHN DOES & JANE DOES;
(italic supplied).
(c) by directing, ordering and compelling, FOR HIS
PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE
351,878,000 SHARES OF STOCKS, MORE OR LESS,
and the Social Security System (SSS),
329,855,000 SHARES OF STOCK, MORE OR LESS, OF
THE BELLE CORPORATION IN THE AMOUNT OF
MORE OR LESS ONE BILLION ONE HUNDRED TWO
MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX
HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
(P1,102,965,607.50) AND MORE OR LESS SEVEN
HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY
PESOS (P744,612,450.00), RESPECTIVELY, OR A
TOTAL OF MORE OR LESS ONE BILLION EIGHT
HUNDRED FORTY SEVEN MILLION FIVE HUNDRED
SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS
AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY
COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE
WITH JOHN DOES AND JANE DOES, COMMISSIONS
OR PERCENTAGES BY REASON OF SAID PURCHASES
OF SHARES OF STOCK IN THE AMOUNT OF ONE
HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS (P189,700,000.00) MORE OR
LESS, FROM THE BELLE CORPORATION WHICH
BECAME PART OF THE DEPOSIT IN THE EQUITABLE-
PCI BANK UNDER THE ACCOUNT NAME 'JOSE
VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS,
GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY
FORM OF PECUNIARY BENEFITS, IN CONNIVANCE
WITH JOHN DOES AND JANE DOES, in the amount
of MORE OR LESS THREE BILLION TWO HUNDRED
THIRTY THREE MILLION ONE HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS
AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND
DEPOSITING THE SAME UNDER HIS ACCOUNT
NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI
BANK."
We discern nothing in the foregoing that is vague or
ambiguous - as there is obviously none - that will
confuse petitioner in his defense. Although subject to
proof, these factual assertions clearly show that the
elements of the crime are easily understood and provide
adequate contrast between the innocent and the
prohibited acts. Upon such unequivocal assertions,
petitioner is completely informed of the accusations
against him as to enable him to prepare for an
intelligent defense.
Petitioner, however, bewails the failure of the law to
provide for the statutory definition of the
terms "combination" and "series" in the key phrase "a
combination or series of overt or criminal acts" found in
Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec.
4. These omissions, according to petitioner, render the
Plunder Law unconstitutional for being impermissibly
vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation
170
against him, hence, violative of his fundamental right to
due process.
The rationalization seems to us to be pure sophistry. A
statute is not rendered uncertain and void merely
because general terms are used therein, or because of
the employment of terms without defining them;
[6]
much less do we have to define every word we
use. Besides, there is no positive constitutional or
statutory command requiring the legislature to define
each and every word in an enactment. Congress is not
restricted in the form of expression of its will, and its
inability to so define the words employed in a statute
will not necessarily result in the vagueness or ambiguity
of the law so long as the legislative will is clear, or at
least, can be gathered from the whole act, which is
distinctly expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal
hermeneutics that words of a statute will be interpreted
in their natural, plain and ordinary acceptation and
signification,[7] unless it is evident that the legislature
intended a technical or special legal meaning to those
words.[8] The intention of the lawmakers - who are,
ordinarily, untrained philologists and lexicographers - to
use statutory phraseology in such a manner is always
presumed. Thus, Webster's New Collegiate Dictionary
contains the following commonly accepted definition of
the words "combination" and "series:"
Combination - the result or product of combining; the
act or process of combining. To combine is to bring into
such close relationship as to obscure individual
characters.
Series - a number of things or events of the same class
coming one after another in spatial and temporal
succession.
That Congress intended the
words "combination" and "series" to be understood in
their popular meanings is pristinely evident from the
legislative deliberations on the bill which eventually
became RA 7080 or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON
JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our definition of
plunder. We say THROUGH A COMBINATION OR SERIES
OF OVERT OR CRIMINAL ACTS AS MENTIONED IN
SECTION ONE HEREOF. Now when we say combination,
we actually mean to say, if there are two or more means,
we mean to say that number one and two or number one
and something else are included, how about a series of
the same act? For example, through misappropriation,
conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two
of the enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but
combination, two acts.
REP. ISIDRO: So in other words, thats it. When we say
combination, we mean, two different acts. It cannot be a
repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so
there are two.
REP. GARCIA: A series.
REP. ISIDRO: Thats not series. Its a combination. Because
when we say combination or series, we seem to say that
two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from
ordinary crimes. That is why, I said, that is a very good
suggestion because if it is only one act, it may fall under
ordinary crime but we have here a combination or series
of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term series?
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two
misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be
combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that
sometimes one or maybe even two acts may already
result in such
a big amount, on line 25, would the Sponsorconsider
deleting the words a series of overt or, to read, therefore:
or conspiracy COMMITTED by criminal acts such as.
Remove the idea of necessitating a series. Anyway, the
criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of
two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because a series implies several
or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be
prosecuted under the particular crime. But when we say
acts of plunder there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already
covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it
is referring to at least two (2) acts falling under different
categories of enumeration provided in Sec. 1, par. (d),
e.g., raids on the public treasury in Sec. 1, par. (d),
subpar. (1), and fraudulent conveyance of assets
belonging to the National Government under Sec. 1, par.
(d), subpar. (3).
On the other hand, to constitute a series" there must be
two (2) or more overt or criminal acts falling under the
same category of enumeration found in Sec. 1, par. (d),
say, misappropriation, malversation
and raids on the public treasury, all of which fall under
Sec. 1, par. (d), subpar. (1). Verily, had the legislature
intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater
pains in specifically providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan[9] that this term is sufficiently defined in
Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at
least a combination or series of overt or criminal acts
enumerated in subsections (1) to (6) of Sec. 1
(d). Secondly, pursuant to Sec. 2 of the law, the pattern of
overt or criminal acts is directed towards a common
purpose or goal which is to enable the public officer to
amass, accumulate or acquire ill-gotten wealth. And
thirdly, there must either be an 'overall unlawful
scheme' or 'conspiracy' to achieve said common goal. As
commonly understood, the term 'overall unlawful
scheme' indicates a 'general plan of action or method'
which the principal accused and public officer and others
conniving with him follow to achieve the aforesaid
common goal. In the alternative, if there is no such
171
overall scheme or where the schemes or methods used by
multiple accused vary, the overt or criminal acts must
form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law
does not give a fair warning and sufficient notice of
what it seeks to penalize. Under the circumstances,
petitioner's reliance on the "void-for-vagueness"
doctrine is manifestly misplaced. The doctrine has been
formulated in various ways, but is most commonly
stated to the effect that a statute establishing a criminal
offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can
understand what conduct is prohibited by the statute. It
can only be invoked against that specie of legislation
that is utterly vague on its face, i.e., that which cannot be
clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks
comprehensible standards that men of common
intelligence must necessarily guess at its meaning and
differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it
violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.[10] But the
doctrine does not apply as against legislations that are
merely couched in imprecise language but which
nonetheless specify
a standard though defectively phrased; or to those that
are apparently ambiguous yet fairly applicable to
certain types of activities. The first may be "saved" by
proper construction, while no challenge may be
mounted as against the second whenever directed
against such activities.[11] With more reason, the
doctrine cannot be invoked where the assailed statute is
clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is
void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed
conduct when measured by common understanding and
practice.[12] It must be stressed, however, that the
"vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld - not
absolute precision or mathematical exactitude, as
petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely
because it might have been more explicit in its wordings
or detailed in its provisions, especially where, because
of the nature of the act, it would be impossible to
provide all the details in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the
observations of Mr. Justice Vicente V. Mendoza during
the deliberations of the Court that the allegations that
the Plunder Law is vague and overbroad do not justify a
facial review of its validity -
The void-for-vagueness doctrine states that "a statute
which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of
law."[13] The overbreadth doctrine, on the other hand,
decrees that "a governmental purpose may not be
achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms."[14]
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society
of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no
requirement that the person making the attack
demonstrate that his own conduct could not be
regulated by a statute drawn with narrow
specificity."[15]The possible harm to society in permitting
some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech
of others may be deterred and perceived grievances left
to fester because of possible inhibitory effects of overly
broad statutes.
This rationale does not apply to penal statutes. Criminal
statutes have general in terrorem effect resulting from
their very existence, and, if facial challenge is allowed
for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In
the area of criminal law, the law cannot take chances as
in the area of free speech.
The overbreadth and vagueness doctrines then have
special application only to free speech cases. They are
inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First
Amendment."[16] In Broadrick v. Oklahoma,[17] the Court
ruled that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words" and, again,
that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For
this reason, it has been held that "a facial challenge to a
legislative act is the most difficult challenge to mount
successfully, since the challenger must establish that no
set of circumstances exists under which the Act would
be valid."[18] As for the vagueness doctrine, it is said that
a litigant may challenge a statute on its face only if it is
vague in all its possible applications. "A plaintiff who
engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied
to the conduct of others."[19]
In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing "on
their faces" statutes in free speech cases or, as they are
called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the
established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in
which its application might be unconstitutional."[20] As
has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes
found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular
defendant."[21] Consequently, there is no basis for
petitioner's claim that this Court review the Anti-
Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in
striking them down entirely on the ground that they
might be applied to parties not before the Court whose
activities are constitutionally protected.[22] It constitutes
a departure from the case and controversy requirement
of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract
contexts.[23] But, as the U.S. Supreme Court pointed out
in Younger v. Harris[24]
[T]he task of analyzing a proposed statute, pinpointing
its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely
if ever an appropriate task for the judiciary. The
172
combination of the relative remoteness of the
controversy, the impact on the legislative process of the
relief sought, and above all the speculative and
amorphous nature of the required line-by-line analysis
of detailed statutes, . . . ordinarily results in a kind of
case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be
decided.
For these reasons, "on its face" invalidation of statutes
has been described as "manifestly strong medicine," to
be employed "sparingly and only as a last resort,"[25] and
is generally disfavored.[26] In determining the
constitutionality of a statute, therefore, its provisions
which are alleged to have been violated in a case must
be examined in the light of the conduct with which the
defendant is charged.[27]
In light of the foregoing disquisition, it is evident that
the purported ambiguity of the Plunder Law, so
tenaciously claimed and argued at length by petitioner,
is more imagined than real. Ambiguity, where none
exists, cannot be created by dissecting parts and words
in the statute to furnish support to critics who cavil at
the want of scientific precision in the law. Every
provision of the law should be construed in relation and
with reference to every other part. To be sure, it will
take more than nitpicking to overturn the well-
entrenched presumption of constitutionality and
validity of the Plunder Law. A fortiori, petitioner
cannot feign ignorance of what the Plunder Law is all
about. Being one of the Senators who voted for its
passage, petitioner must be aware that the law was
extensively deliberated upon by the Senate and its
appropriate committees by reason of which he even
registered his affirmative vote with full knowledge of its
legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan[28] must be
mentioned if only to illustrate and emphasize the point
that courts are loathed to declare a statute void for
uncertainty unless the law itself is so imperfect and
deficient in its details, and is susceptible of no
reasonable construction that will support and give it
effect. In that case,
petitioners Gallego and Agoncillo challenged the
constitutionality of Sec. 3, par. (e), of The Anti-Graft and
Corrupt Practices Act for being vague. Petitioners
posited, among others, that the term "unwarranted" is
highly imprecise and elastic with no common law
meaning or settled definition by prior judicial or
administrative precedents; that, for its vagueness, Sec. 3,
par. (e), violates due process in that it does not give fair
warning or sufficient notice of what it seeks to
penalize. Petitioners further argued that the
Information charged them with three (3) distinct
offenses, to wit: (a) giving of "unwarranted" benefits
through manifest partiality; (b) giving of "unwarranted"
benefits through evident bad faith; and, (c) giving of
"unwarranted" benefits through gross inexcusable
negligence while in the discharge of their official
function and that their right to be informed of the
nature and cause of the accusation against them was
violated because they were left to guess which of the
three (3) offenses, if not all, they were being charged
and prosecuted.
In dismissing the petition, this Court held that Sec. 3,
par. (e), of The Anti-Graft and Corrupt Practices Act does
not suffer from the constitutional defect of
vagueness. The phrases "manifest partiality," "evident
bad faith," and "gross and inexcusable negligence"
merely describe the different modes by which the
offense penalized in Sec. 3, par. (e), of the statute may be
committed, and the use of all these phrases in the same
Information does not mean that the indictment charges
three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems
lacking adequate or official support; unjustified;
unauthorized (Webster, Third International Dictionary,
p. 2514); or without justification or adequate reason
(Philadelphia Newspapers, Inc. v. US Dept. of Justice,
C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases,
Permanent Edition, Vol. 43-A 1978, Cumulative Annual
Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt
Practices Act consider a corrupt practice and make
unlawful the act of the public officer in:
x x x or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through
manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act
3019, as amended).
It is not at all difficult to comprehend that what the
aforequoted penal provisions penalize is the act of a
public officer, in the discharge of his official,
administrative or judicial functions, in giving any private
party benefits, advantage or preference which is
unjustified, unauthorized or without justification or
adequate reason, through manifest partiality, evident
bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing
vague or ambiguous in the use of the
term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft
and Corrupt Practices Act, which was understood in its
primary and general acceptation. Consequently, in that
case, petitioners' objection thereto was held inadequate
to declare the section unconstitutional.
On the second issue, petitioner advances the highly
stretched theory that Sec. 4 of the Plunder Law
circumvents the immutable obligation of the
prosecution to prove beyond reasonable doubt the
predicate acts constituting the crime of plunder when it
requires only proof of a pattern of overt or criminal acts
showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing
the crime of plunder, it shall not be necessary to prove
each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being
sufficient to establish beyond reasonable doubt a pattern
of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy.
The running fault in this reasoning is obvious even to
the simplistic mind. In a criminal prosecution for
plunder, as in all other crimes, the accused always has in
his favor the presumption of innocence which is
guaranteed by the Bill of Rights, and unless the State
succeeds in demonstrating by proof beyond reasonable
doubt that culpability lies, the accused is entitled to an
acquittal.[29] The use of the "reasonable doubt" standard
is indispensable to command the respect and
confidence of the community in the application of
criminal law. It is critical that the moral force of criminal
law be not diluted by a standard of proof that leaves
people in doubt whether innocent men are being
condemned. It is also important in our free society that
every individual going about his ordinary affairs has
confidence that his government cannot adjudge him
guilty of a criminal offense without convincing a proper
factfinder of his guilt with utmost
certainty. This "reasonable doubt" standard has
acquired such exalted stature in the realm of
constitutional law as it gives life to the Due Process
Clausewhich protects the accused against conviction
except upon proof beyond reasonable doubt of every
fact necessary to constitute the crime with which he is
charged.[30] The following exchanges between Rep.
Rodolfo Albano and Rep. Pablo Garcia on this score
173
during the deliberations in the floor of the House of
Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES
ON RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in
our criminal law that what is alleged in the information
must be proven beyond reasonable doubt. If we will prove
only one act and find him guilty of the other acts
enumerated in the information, does that not work
against the right of the accused especially so if the
amount committed, say, by falsification is less than P100
million, but the totality of the crime committed is P100
million since there is malversation, bribery, falsification
of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the
information needs to be proved beyond reasonable
doubt. What is required to be proved beyond reasonable
doubt is every element of the crime charged. For example,
Mr. Speaker, there is an enumeration of the things taken
by the robber in the information three pairs of pants,
pieces of jewelry. These need not be proved beyond
reasonable doubt, but these will not prevent the
conviction of a crime for which he was charged just
because, say, instead of 3 pairs of diamond earrings the
prosecution proved two. Now, what is required to be
proved beyond reasonable doubt is the element of the
offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but
considering that in the crime of plunder the totality of the
amount is very important, I feel that such a series of overt
criminal acts has to be taken singly. For instance, in the
act of bribery, he was able to accumulate only P50,000
and in the crime of extortion, he was only able to
accumulate P1 million. Now, when we add the totality of
the other acts as required under this bill through the
interpretation on the rule of evidence, it is just one single
act, so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes
of proving an essential element of the crime, there is a
need to prove that element beyond reasonable doubt. For
example, one essential element of the crime is that the
amount involved is P100 million. Now, in a series of
defalcations and other acts of corruption in the
enumeration the total amount would be P110 or P120
million, but there are certain acts that could not be
proved, so, we will sum up the amounts involved in those
transactions which were proved. Now, if the amount
involved in these transactions, proved beyond reasonable
doubt, is P100 million, then there is a crime of
plunder(underscoring supplied).
It is thus plain from the foregoing that the legislature
did not in any manner refashion the standard quantum
of proof in the crime of plunder. The burden still
remains with the prosecution to prove beyond any iota
of doubt every fact or element necessary to constitute
the crime.
The thesis that Sec. 4 does away with proof of each and
every component of the crime suffers from a dismal
misconception of the import of that provision.What the
prosecution needs to prove beyond reasonable doubt is
only a number of acts sufficient to form a combination
or series which would constitute a pattern and involving
an amount of at least P50,000,000.00. There is no need
to prove each and every other act alleged in the
Information to have been committed by the accused in
furtherance of the overall unlawful scheme or
conspiracy to amass, accumulate or acquire ill-gotten
wealth. To illustrate, supposing that the accused is
charged in an Information for plunder with having
committed fifty (50) raids on the public
treasury. The prosecution need notprove all these fifty (
50) raids, it being sufficient to prove by pattern at least
two (2) of the raids beyond reasonable doubt provided
only that they amounted to at least P50,000,000.00.[31]
A reading of Sec. 2 in conjunction with Sec. 4, brings us
to the logical conclusion that "pattern of overt or
criminal acts indicative of the overall unlawful scheme
or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise,
such pattern arises where the prosecution is able to
prove beyond reasonable doubt the predicate acts as
defined in Sec. 1, par. (d). Pattern is merely a by-product
of the proof of the predicate acts. This conclusion is
consistent with reason and common sense. There would
be no other explanation for a combination or series of
overt or criminal acts to stash P50,000,000.00 or more,
than "a scheme or conspiracy to amass, accumulate or
acquire ill gotten wealth." The prosecution is therefore
not required to make a deliberate and conscious effort
to prove pattern as it necessarily follows with the
establishment of a series or combination of the
predicate acts.
Relative to petitioner's contentions on the purported
defect of Sec. 4 is his submission that "pattern" is "a very
important element of the crime of plunder;"and that
Sec. 4 is "two pronged, (as) it contains a rule of evidence
and a substantive element of the crime," such that
without it the accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused
be convicted under the Plunder Law without applying
Section 4 on the Rule of Evidence if there is proof beyond
reasonable doubt of the commission of the acts
complained of?
ATTY. AGABIN: In that case he can be convicted of
individual crimes enumerated in the Revised Penal Code,
but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements
of the crime are proved beyond reasonable doubt without
applying Section 4, can you not have a conviction under
the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the
application of Sec. 4 in convicting an accused charged for
violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section
4 lays down a substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail
of Section 4 when there is proof beyond reasonable doubt
on the acts charged constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two
pronged, it contains a rule of evidence and it contains a
substantive element of the crime of plunder. So, there is
no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond
reasonable doubt insofar as the predicate crimes charged
are concerned that you do not have to go that far by
applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4
contains a very important element of the crime of
plunder and that cannot be avoided by the prosecution.[32]
We do not subscribe to petitioner's stand. Primarily, all
the essential elements of plunder can be culled and
understood from its definition in Sec. 2, in relation to
Sec. 1, par. (d), and "pattern" is not one of
them. Moreover, the epigraph and opening clause of Sec.
4 is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing
the crime of plunder x x x x
It purports to do no more than prescribe a rule of
procedure for the prosecution of a criminal case for
plunder. Being a purely procedural measure, Sec. 4 does
not define or establish any substantive right in favor of
the accused but only operates in furtherance of a
remedy. It is only a means to an end, an aid to
substantive law. Indubitably, even without invoking Sec.
174
4, a conviction for plunder may be had, for what is
crucial for the prosecution is to present sufficient
evidence to engender that moral certitude exacted by
the fundamental law to prove the guilt of the accused
beyond reasonable doubt. Thus, even granting for the
sake of argument that Sec. 4 is flawed and vitiated for
the reasons advanced by petitioner, it may simply be
severed from the rest of the provisions without
necessarily resulting in the demise of the law; after all,
the existing rules on evidence can supplant Sec. 4 more
than enough. Besides, Sec. 7 of RA 7080 provides for a
separability clause -
Sec. 7. Separability of Provisions. - If any provisions of
this Act or the application thereof to any person or
circumstance
is held invalid, the remainingprovisions of this Act and t
he application of such provisions to other persons or
circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the
whole act from being declared invalid as a result of the
nullity of some of its provisions, assuming that to be the
case although it is not really so, all the provisions
thereof should accordingly be treated independently of
each other, especially if by doing so, the objectives of the
statute can best be achieved.
As regards the third issue, again we agree with Justice
Mendoza that plunder is a malum in se which requires
proof of criminal intent. Thus, he says, in his Concurring
Opinion -
x x x Precisely because the constitutive crimes are mala
in se the element of mens rea must be proven in a
prosecution for plunder. It is noteworthy that the
amended information alleges that the crime of plunder
was committed "willfully, unlawfully and criminally." It
thus alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates
the requirement of mens rea and that is the reason he
claims the statute is void, petitioner cites the following
remarks of Senator Taada made during the deliberation
on S.B. No. 733:
SENATOR TAADA . . . And the evidence that will be
required to convict him would not be evidence for each
and every individual criminal act but only evidence
sufficient to establish the conspiracy or scheme to
commit this crime of plunder.[33]
However, Senator Taada was discussing 4 as shown by
the succeeding portion of the transcript quoted by
petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman
feels that it is contained in Section 4, Rule of Evidence,
which, in the Gentleman's view, would provide for a
speedier and faster process of attending to this kind of
cases?
SENATOR TAADA: Yes, Mr. President . . .[34]
Senator Taada was only saying that where the charge is
conspiracy to commit plunder, the prosecution need not
prove each and every criminal act done to further the
scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or ciminal
acts indicative of the overall unlawful scheme or
conspiracy. As far as the acts constituting the pattern
are concerned, however, the elements of the crime must
be proved and the requisite mens reamust be shown.
Indeed, 2 provides that -
Any person who participated with the said public officer
in the commission of an offense contributing to the
crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised
Penal Code, shall be considered by the court.
The application of mitigating and extenuating
circumstances in the Revised Penal Code to
prosecutions under the Anti-Plunder Law indicates
quite clearly thatmens rea is an element of plunder since
the degree of responsibility of the offender is
determined by his criminal intent. It is true that 2 refers
to "any person who participates with the said public
officer in the commission of an offense contributing to
the crime of plunder." There is no reason to believe,
however, that it does not apply as well to the public
officer as principal in the crime. As Justice Holmes
said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there
is no canon against using common sense in construing
laws as saying what they obviously mean."[35]
Finally, any doubt as to whether the crime of plunder is
a malum in se must be deemed to have been resolved in
the affirmative by the decision of Congress in 1993 to
include it among the heinous crimes punishable
by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No.
7659. Referring to these groups of heinous crimes, this
Court held in People v. Echegaray:[36]
The evil of a crime may take various forms. There are
crimes that are, by their very nature, despicable, either
because life was callously taken or the victim is treated
like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her
growth as a human being . . . . Seen in this light, the
capital crimes of kidnapping and serious illegal
detention for ransom resulting in the death of the victim
or the victim is raped, tortured, or subjected to
dehumanizing acts; destructive arson resulting in death;
and drug offenses involving minors or resulting in the
death of the victim in the case of other crimes; as well as
murder, rape,
parricide, infanticide, kidnapping and serious illegal
detention, where the victim is detained for more than
three days or serious physical injuries were inflicted on
the victim or threats to kill him were made or the victim
is a minor, robbery with homicide, rape or intentional
mutilation, destructive arson, and carnapping where the
owner, driver or occupant of the carnapped vehicle is
killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very
nature.
There are crimes, however, in which the abomination
lies in the significance and implications of the subject
criminal acts in the scheme of the larger socio-political
and economic context in which the state finds itself to
be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of
corrupt tyrannical rule that bankrupted the government
and impoverished the population, the Philippine
Government must muster the political will to dismantle
the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself
in the structures of society and the psyche of the
populace. [With the government] terribly lacking the
money to provide even the most basic services to its
people, any form of misappropriation or misapplication
of government funds translates to an actual threat to the
very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this
context, no less heinous are the effects and
repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses
involving government officials, employees or officers,
that their perpetrators must not be allowed to cause
further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder
is a heinous offense implies that it is a malum in se. For
when the acts punished are inherently immoral or
inherently wrong, they are mala in se[37] and it does not
matter that such acts are punished in a special law,
175
especially since in the case of plunder the predicate
crimes are mainly mala in se. Indeed, it would be absurd
to treat prosecutions for plunder as though they are
mere prosecutions for violations of the Bouncing Check
Law (B.P. Blg. 22) or of an ordinance against jaywalking,
without regard to the inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA
7659, the amendatory law of RA 7080, on constitutional
grounds. Suffice it to say however that it is now too late
in the day for him to resurrect this long dead issue,
the same having been eternally consigned by People v.
Echegaray[38] to the archives of jurisprudential
history. The declaration of this Court therein that RA
7659 is constitutionally valid stands as a declaration of
the State, and becomes, by necessary effect, assimilated
in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption
and obscene profligacy of officials in high places which
have shaken its very foundation. The anatomy of graft
and corruption has become more elaborate in
the corridors of time as unscrupulous people
relentlessly contrive more and more ingenious ways to
bilk the coffers of the government. Drastic and radical
measures are imperative to fight the increasingly
sophisticated, extraordinarily methodical and
economically catastrophic looting of the national
treasury. Such is the Plunder Law, especially designed to
disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a
malignant tumor and ultimately consume the moral and
institutional fiber of our nation. The Plunder Law,
indeed, is a living testament to the will of the legislature
to ultimately eradicate this scourge and thus secure
society against the avarice and other venalities in public
office.
These are times that try men's souls. In the checkered
history of this nation, few issues of national importance
can equal the amount of interest and passion generated
by petitioner's ignominious fall from the highest office,
and his eventual prosecution and trial under a virginal
statute. This continuing
saga hasdriven a wedge of dissension among our people
that may linger for a long time. Only by responding to
the clarion call for patriotism, to rise above factionalism
and prejudices, shall we emerge triumphant in the
midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080
otherwise known as the Plunder Law, as amended by RA
7659, is CONSTITUTIONAL.Consequently, the petition to
declare the law unconstitutional is DISMISSED for lack
of merit.
SO ORDERED.
3. EARLIEST OPPORTUNITY
[G.R. No. 131124. March 29, 1999]
OSMUNDO G. UMALI, petitioner, vs. EXECUTIVE
SECRETARY TEOFISTO T. GUINGONA JR., CHAIRMAN,
PRESIDENTIAL COMMISSION AGAINST GRAFT AND
CORRUPTION, THE SECRETARY OF FINANCE, AND
THE COMMISSIONER OF INTERNAL
REVENUE, respondents.
RESOLUTION
PURISIMA, J.:
At bar is a petition for review under Rule 45 of the
Revised Rules of Court assailing the decision of the
Court of Appeals dated April 8, 1997, which set aside
the Amended Decision dated December 13, 1995 of the
Regional Trial Court of Makati in Civil Case No. 94-3079,
and dismissed the petition for Certiorari, Prohibition
and Injunction brought by petitioner against the
respondents.
The antecedent facts leading to the filing of the present
petition are as follows:
On October 27, 1993, petitioner Osmundo Umali was
appointed Regional Director of the Bureau of Internal
Revenue by the then President Fidel V. Ramos. He was
assigned in Manila, from November 29, 1993 to March
15, 1994, and in Makati, from March 16, 1994 to August
4, 1994.
On August 1, 1994, President Ramos received a
confidential memorandum against the petitioner for
alleged violations of internal revenue laws, rules and
regulations during his incumbency as Regional Director,
more particularly the following malfeasance,
misfeasance and nonfeasance, to wit:
A. Issuance of Letters of Authority (LAs) to investigate
taxpayers despite the ban on investigations as ordered
in Revenue memorandum Order No. 31-93. In numerous
cases, revenue officers whose names appeared in the
LAs as investigating officers were unaware that such
LAs were issued to them. He issued LAs to favored
revenue examiners such as his Secretary, Natividad
Feliciano;
B. Termination of tax cases without the submission of
the required investigation reports, thus exempting the
same from examination and review;
C. Terminated cases with reports were submitted
directly to and approved by respondent Umali without
being reviewed by the Assessment Division, thus
eliminating the check and balance mechanism designed
to guard against abuses or errors;
D. Unlawful issuance of LAs to taxpayers who were
thereafter convinced to avail of the BIRs compromise
and abatement program under RMOs 45093 and 54-93,
for which the taxpayers were made, for a monetary
consideration, to pay smaller amounts in lieu of being
investigated;
E. Despite the devolution of the authority to issue LAs
from Regional Directors to the Revenue District Officers
under RMO 26-94, dated April 14, 1994, respondent
Umali continued to issue antedated LAs in absolute
defiance of the aforesaid issuance, using old LAs
requisitioned by him when still Regional Director of San
Pablo Region. In one instance, he issued a termination
letter bearing the San Pablo Region letterhead even
when he was already Makati Regional Director; and
F. In his attempt to cover up his tracks and to muddle
the real issue of his violations of the ban in the issuance
of LAs and basic revenue rules and regulations,
respondent enlisted the support of other regional
directors for the purpose of questioning particularly the
devolution/centralization of the functions of the
Bureau.[1]
On August 2, 1994, upon receipt of the said confidential
memorandum, former President Ramos authorized the
issuance of an Order for the preventive suspension of
Umali and immediately referred the Complaint against
the latter to the Presidential Commission on Anti-Graft
and Corruption (PCAGC), for investigation.
Petitioner was duly informed of the charges against
him. In its Order, dated August 9, 1994, the PCAGC
directed him to send in his answer, copies of his
Statement of Assets and Liabilities for the past three
years (3), and Personal Data Sheet. Initial hearing was
set on August 25, 1994, at 2:00 p.m., at the PCAGC
Office. On August 23, the petitioner filed his required
Answer.
On August 25, 1994, petitioner appeared with his
lawyer, Atty. Bienvenido Santiago before the
PCAGC. Counsel for the Commissioner of Internal
Revenue submitted a Progress Report, dated August 24,
1994, on the audit conducted on the petitioner. As
prayed for, petitioner and his lawyer were granted
five (5) days to file a supplemental answer.
176
The hearing was reset to August 30, 1994, during which
the parties were given a chance to ask clarificatory
questions. Petitioner and his counsel did not ask any
question on the genuineness and authenticity of the
documents attached as annexes to the
Complaint. Thereafter, the parties agreed to submit the
case for resolution upon the presentation of their
respective memoranda.
Petitioner filed his Memorandum on September 6, 1994
while the BIR sent in its Memorandum on the following
day.
After evaluating the evidence on record, the PCAGC
issued its Resolution of September 23, 1994, finding a
prima facie evidence to support six (6) of the
twelve (12) charges against petitioner, to wit:
1. On the First Charge Respondent issued 176 Letters of
Authority in gross disobedience to and in violation of
RMOs 31-93 and 27-94.
xxx xxx xxx
3. On the Third Charge There is sufficient evidence of a
prima facie case of falsification of official documents as
defined in Art. 171, par. 2 and 4 of the Revised Penal
Code, against the respondent for the issuance of 9 LAs
and who did not investigate the tax cases, each LA being
a separate offense.
xxx xxx xxx
7. On the Seventh Charge There is sufficient evidence of
a prima facie case of falsification of official documents
against respondent for antedating the four LAs cited in
the charge, each LA constituting a separate offense,
under Art. 171 (4) of the Revised Penal Code.
8. On the Ninth (sic) Charge There is sufficient evidence
to support a prima facie case of falsification of an official
document under Art. 171 (4) of the Revised Penal Code
against the respondent in the tax case of Richfield
International Corp., Inc. for indicating a false date on the
letter of termination he issued to the company. There is,
however, insufficient evidence against respondent in the
other tax case of Jayson Auto Supply Co.
9. On the Ninth Charge There is sufficient evidence of a
prima facie case of falsification of official documents in
each of the two tax cases cited in his charge, under the
provisions of Art. 171 (4) of the Revised Penal Code, as
the dates of Termination Letters were false.
10. On the Tenth Charge Respondent, by his own
admission, violated RMO 36-87 requiring turn over of
all properties and forms to his successor upon transfer a
head of office, and RMO 27-94 requiring the surrender
of all unused old forms of Letters of Authority. The
Commission noted the defiant attitude of respondent, as
expressed in his admission, towards valid and legal
orders of the BIR, and his propensity to defy and ignore
such orders and regulations.[2]
xxx xxx xxx
On October 6, 1994, acting upon the recommendation of
the PCAGC, then President Ramos issued Administrative
Order No. 152 dismissing petitioner from the service,
with forfeiture of retirement and all benefits under the
law.
On October 24, 1994, the petitioner moved for
reconsideration of his dismissal but the Office of the
President denied the motion for reconsideration on
November 28, 1994.
On December 1, 1994, petitioner brought a Petition
for Certiorari, Prohibition and Injunction, docketed as
Civil Case No. 94-3079 before the Regional Trial Court of
Makati, alleging, among others:
I. That the petitioner was suspended and dismissed
from the service in violation of his constitutional right
to due process of law; and
II. That the constitutional right of the petitioner to
security of tenure was violated by the respondents.
The case was raffled off to Branch 133 of the Regional
Trial Court in Makati, which issued on December 2,
1994, a Temporary Restraining Order, enjoining the
respondents and/or their representatives from
enforcing Administrative Order No. 152, and directing
the parties to observe the status quo until further
orders from the said Court.
On December 23, 1994, the said Regional Trial Court
dismissed the petition. On January 10, 1995, the
petitioner presented a motion for reconsideration, this
time, theorizing that the Presidential Commission on
Anti-Graft and Corruption is an unconstitutional office
without jurisdiction to conduct the investigation against
him.
Respondents submitted their Opposition/Comment to
the Motion for Reconsideration. Then, the petitioner
filed a Motion to Inhibit Judge Inoturan on the ground
that the latter was formerly a Solicitor in the Office of
the Solicitor General and could not be expected to
decide the case with utmost impartiality.
The case was then re-raffled to Hon. Teofilo L. Guadiz, Jr.
who, on December 13, 1995, handed down an Amended
Decision, granting the petition and practically reversing
the original Decision.
Not satisfied with the Amended Decision of Judge
Guadiz, Jr., the respondents appealed therefrom to the
Court of Appeals.
On April 8, 1997, the Ninth Division of the Court of
Appeals[3] promulgated its decision, reversing the
Amended Decision of the trial court of origin, and
dismissing Civil Case No. 94-3079. Petitioners motion
for reconsideration met the same fate. It was denied on
October 28, 1997.
Undaunted, petitioner found his way to this Court via
the petition under scrutiny.
In the interim that the administrative and civil cases
against the petitioner were pending, the criminal aspect
of such cases was referred to the Office of the
Ombudsman for investigation.
On July 25, 1995, after conducting the investigation,
Ombudsman Investigators Merba Waga and Arnulfo
Pelagio issued a Resolution finding a probable cause
and recommending the institution in the courts of
proper Jurisdiction criminal cases for Falsification of
Public Documents (13 counts) and Open
Disobedience (2 counts) against the petitioner.
However, acting upon petitioners motion for
reconsideration Special Prosecution Officer II Lemuel M.
De Guzman set aside the said Resolution of July 25,
1995, and in lieu thereof, dismissed the charges against
petitioner, in the Order dated November 5, 1996, which
was approved by Ombudsman Aniano Desierto.
Accordingly, all the informations against the petitioner
previously sent to the Office of the City Prosecutor, were
recalled.
On August 10, 1998, Commissioner Beethoven L. Rualo
of the Bureau of Internal Revenue sent a letter to the
Solicitor General informing the latter thatthe Bureau of
Internal Revenue is no longer interested in pursuing the
case against Atty. Osmundo Umali on the basis of the
comment and recommendation submitted by the Legal
Department of the BIR.[4]
Petitioner raised the issues:
1. WHETHER ADMINISTRATIVE ORDER NO. 152
VIOLATED PETITIONERS RIGHT TO SECURITY OF
TENURE;
2. WHETHER PETITIONER WAS DENIED DUE PROCESS
IN THE ISSUANCE OF ADMINISTRATIVE ORDER NO.
152;
3. WHETHER THE PCAGC IS A VALIDLY CONSTITUTED
GOVERNMENT AGENCY AND WHETHER PETITIONER
CAN RAISE THE ISSUE OF ITS CONSTITUTIONALITY
BELATEDLY IN ITS MOTION FOR
177
RECONSIDERATION OF THE TRIAL COURTS DECISION;
AND
5. WHETHER IN THE LIGHT OF THE OMBUDSMAN
RESOLUTION DISMISSING THE CHARGES AGAINST
PETITIONER, THERE IS STILL BASIS FOR
PETITIONERS DISMISSAL WITH FORFEITURE
OF BENEFITS AS RULED IN ADMINISTRATIVE ORDER
NO. 152.
Petitioner contends that as Regional Director of the
Bureau of Internal Revenue he belongs to the Career
Executive Service. Although a presidential appointee
under the direct authority of the President to discipline,
he is a career executive service officer (CESO) with
tenurial protection, who can only be removed for cause.
In support of this theory, petitioner cited the case
of Larin vs. Executive Secretary[5] where the court held:
xxx petitioner is a presidential appointee who belongs
to the career service of the Civil Service. Being a
presidential appointee, he comes under the direct
disciplining authority of the President. This is in line
with the settled principle that the power to remove is
inherent in the power to appoint conferred to the
President by Section 16, Article VII of the
constitution. xxx This power of removal, however, is not
an absolute one which accepts no reservation. It must
be pointed out that petitioner is a career service officer.
xxx Specifically, Section 36 of P.D. No. 807, as amended,
otherwise known as Civil Service Decree of the
Philippines, is emphatic that career service officers and
employees who enjoy security of tenure may be
removed only for any of the causes enumerated in said
law. In other words, the fact that petitioner is a
presidential appointee does not give the appointing
authority the license to remove him at will or at his
pleasure for it is an admitted fact that he is likewise a
career service officer who under the law is the recipient
of tenurial protection, thus, may only be removed for
cause and in accordance with procedural due process.
Petitioner maintains that as a career executive service
officer, he can only be removed for cause and under the
Administrative Code of 1987,[6] loss of confidence is not
one of the legal causes or grounds for removal.
Consequently, his dismissal from office on the ground of
loss of confidence violated his right to security of
tenure; petitioner theorized.
After a careful study, we are of the irresistible
conclusion that the Court of Appeals ruled correctly on
the first three issues. To be sure, petitioner was not
denied the right to due process before the PCAGC.
Records show that the petitioner filed his answer and
other pleadings with respect to his alleged violation of
internal revenue laws and regulations, and he attended
the hearings before the investigatory body. It is thus
decisively clear that his protestation of non-observance
of due process is devoid of any factual or legal basis.
Neither can it be said that there was a violation of what
petitioner asserts as his security of tenure. According to
petitioner, as a Regional Director of Bureau of Internal
Revenue, he is a CESO eligible entitled to security of
tenure. However, petitioners claim of CESO eligibility is
anemic of evidentiary support. It was incumbent upon
him to prove that he is a CESO eligible but unfortunately,
he failed to adduce sufficient evidence on the matter. His
failure to do so is fatal.
As regards the issue of constitutionality of the PCAGC, it
was only posed by petitioner in his motion for
reconsideration before the Regional Trial Court of
Makati. It was certainly too late to raise the said issue
for the first time at such late stage of the proceedings
below.
How about the fourth issue, whether in view of the
Resolution of the Ombudsman dismissing the charges
against petitioner, there still remains a basis for the
latter dismissal with forfeiture of benefits, as directed in
Administrative Order No. 152?
It is worthy to note that in the case under consideration,
the administrative action against the petitioner was
taken prior to the institution of the criminal case. The
charges included in Administrative Order No. 152 were
based on the results of investigation conducted by the
PCAGC and not on the criminal charges before the
Ombudsman.
In sum, the petition is dismissable on the ground that
the issues posited by the petitioner do not constitute a
valid legal basis for overturning the finding and
conclusion arrived at by the Court of Appeals. However,
taking into account the antecedent facts and
circumstances aforementioned, the Court, in the
exercise of its equity powers, has decided to consider
the dismissal of the charges against petitioner before
the Ombudsman, the succinct and unmistakable
manifestation by the Commissioner of the Bureau of
Internal Revenue that his office is no longer interested
in pursuing the case, and the position taken by the
Solicitor General,[7] that there is no more basis for
Administrative Order No. 152, as effective and
substantive supervening events that cannot be
overlooked.
WHEREFORE, in light of the foregoing effective and
substantive supervening events, and in the exercise of
its equity powers, the Court hereby GRANTS the
petition. Accordingly, Administrative Order No. 152 is
considered LIFTED, and petitioner can be allowed to
retire with full benefits. No pronouncement as to costs.
SO ORDERED
4. NECESSITY OF DECIDING CONSTITUTIONAL
QUESTIONS
[G.R. No. 152895. June 15, 2004]
OFELIA V. ARCETA, petitioner, vs. The Honorable
MA. CELESTINA C. MANGROBANG, Presiding Judge,
Branch 54, Metropolitan Trial Court of Navotas,
Metro Manila, respondent.
[G.R. No. 153151. June 15, 2004]
GLORIA S. DY, petitioner, vs. The Honorable EDWIN
B. RAMIZO, Presiding Judge, Branch 53,
Metropolitan Trial Court of Caloocan
City, respondent.
RESOLUTION
QUISUMBING, J.:
For resolution are two consolidated[1] petitions under
Rule 65 of the Rules of Court, for certiorari, prohibition
and mandamus, with prayers for a temporary
restraining order. Both assail the constitutionality of the
Bouncing Checks Law, also known as Batas Pambansa
Bilang 22.
In G.R. No. 152895, petitioner Ofelia V. Arceta prays that
we order the Metropolitan Trial Court (MeTC) of
Navotas, Metro Manila, Branch 54, to cease and desist
from hearing Criminal Case No. 1599-CR for violation of
B.P. Blg. 22, and then dismiss the case against her. In G.R.
No. 153151, petitioner Gloria S. Dy also prays that this
Court order the MeTC of Caloocan City to cease and
desist from proceeding with Criminal Case No. 212183,
and subsequently dismiss the case against her. In fine,
however, we find that what both petitioners seek is that
the Court should revisit and abandon the doctrine laid
down in Lozano v. Martinez,[2] which upheld the validity
of the Bouncing Checks Law.
The facts of these cases are not in dispute.
1. G.R. No. 152895
The City Prosecutor of Navotas, Metro Manila charged
Ofelia V. Arceta with violating B.P. Blg. 22 in an
Information, which was docketed as Criminal Case No.
1599-CR. The accusatory portion of said Information
reads:
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That on or about the 16th day of September 1998, in
Navotas, Metro Manila, and within the jurisdiction of
this Honorable Court, the above-named accused, did
then and there wilfully, unlawfully and feloniously make
or draw and issue to OSCAR R. CASTRO, to apply on
account or for value the check described below:
Check No : 00082270
Drawn Against : The Region Bank
In the Amount of : P740,000.00
Date : December 21, 1998
Payable to : Cash
said accused well-knowing that at the time of issue
Ofelia V. Arceta did not have sufficient funds or credit
with the drawee bank for the payment, which check
when presented for payment within ninety (90) days
from the date thereof was subsequently dishonored by
the drawee bank for reason DRAWN AGAINST
INSUFFICIENT FUNDS, and despite receipt of notice of
such dishonor, the accused failed to pay said payee with
the face amount of said check or to make arrangement
for full payment thereof within five (5) banking days
after receiving notice.
CONTRARY TO LAW.[3]
Arceta did not move to have the charge against her
dismissed or the Information quashed on the ground
that B.P. Blg. 22 was unconstitutional. She reasoned out
that with the Lozano doctrine still in place, such a move
would be an exercise in futility for it was highly unlikely
that the trial court would grant her motion and thus go
against prevailing jurisprudence.
On October 21, 2002,[4] Arceta was arraigned and
pleaded not guilty to the charge. However, she
manifested that her arraignment should be without
prejudice to the present petition or to any other actions
she would take to suspend proceedings in the trial
court.
Arceta then filed the instant petition.
2. G.R. No. 153151
The Office of the City Prosecutor of Caloocan filed a
charge sheet against Gloria S. Dy for violation of the
Bouncing Checks Law, docketed by the MeTC of
Caloocan City as Criminal Case No. 212183. Dy allegedly
committed the offense in this wise:
That on or about the month of January 2000 in Caloocan
City, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused, did then and there wilfully, unlawfully and
feloniously make and issue Check No. 0000329230
drawn against PRUDENTIAL BANK in the amount
ofP2,500,000.00 dated January 19, 2000 to apply for
value in favor of ANITA CHUA well knowing at the time
of issue that she has no sufficient funds in or credit with
the drawee bank for the payment of such check in full
upon its presentment which check was subsequently
dishonored for the reason ACCOUNT CLOSED and with
intent to defraud failed and still fails to pay the said
complainant the amount of P2,500,000.00 despite
receipt of notice from the drawee bank that said check
has been dishonored and had not been paid.
Contrary to Law.[5]
Like Arceta, Dy made no move to dismiss the charges
against her on the ground that B.P. Blg. 22 was
unconstitutional. Dy likewise believed that any move on
her part to quash the indictment or to dismiss the
charges on said ground would fail in view of
the Lozano ruling. Instead, she filed a petition with this
Court invoking its power of judicial review to have the
said law voided for Constitutional infirmity.
Both Arceta and Dy raise the following identical issues
for our resolution:
[a] Does section 1 really penalize the act of issuing a
check subsequently dishonored by the bank for lack of
funds?
[b] What is the effect if the dishonored check is not paid
pursuant to section 2 of BP 22?
[c] What is the effect if it is so paid?
[d] Does section 2 make BP 22 a debt collecting law
under threat of imprisonment?
[e] Does BP 22 violate the constitutional proscription
against imprisonment for non-payment of debt?
[f] Is BP 22 a valid exercise of the police power of the
state?[6]
After minute scrutiny of petitioners submissions, we
find that the basic issue being raised in these special
civil actions for certiorari, prohibition, and mandamus
concern the unconstitutionality or invalidity of B.P. Blg.
22. Otherwise put, the petitions constitute an oblique
attack on the constitutionality of the Bouncing Checks
Law, a matter already passed upon by the Court through
Justice (later Chief Justice) Pedro Yap almost two
decades ago. Petitioners add, however, among the
pertinent issues one based on the observable but
worrisome transformation of certain metropolitan trial
courts into seeming collection agencies of creditors
whose complaints now clog the court dockets.
But let us return to basics. When the issue of
unconstitutionality of a legislative act is raised, it is the
established doctrine that the Court may exercise its
power of judicial review only if the following requisites
are present: (1) an actual and appropriate case and
controversy exists; (2) a personal and substantial
interest of the party raising the constitutional question;
(3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question
raised is the very lis mota of the case.[7] Only when these
requisites are satisfied may the Court assume
jurisdiction over a question of unconstitutionality or
invalidity of an act of Congress. With due regard to
counsels spirited advocacy in both cases, we are unable
to agree that the abovecited requisites have been
adequately met.
Perusal of these petitions reveals that they are primarily
anchored on Rule 65, Section 1[8] of the 1997 Rules of
Civil Procedure. In a special civil action of certiorari the
only question that may be raised is whether or not the
respondent has acted without or in excess of
jurisdiction or with grave abuse of discretion.[9] Yet
nowhere in these petitions is there any allegation that
the respondent judges acted with grave abuse of
discretion amounting to lack or excess of jurisdiction. A
special civil action for certiorari will prosper only if a
grave abuse of discretion is manifested.[10]
Noteworthy, the instant petitions are conspicuously
devoid of any attachments or annexes in the form of a
copy of an order, decision, or resolution issued by the
respondent judges so as to place them understandably
within the ambit of Rule 65. What are appended to the
petitions are only copies of the Informations in the
respective cases, nothing else. Evidently, these petitions
for a writ of certiorari, prohibition and mandamus do
not qualify as the actual and appropriate cases
contemplated by the rules as the first requisite for the
exercise of this Courts power of judicial review. For as
the petitions clearly show on their faces petitioners
have not come to us with sufficient cause of action.
Instead, it appears to us that herein petitioners have
placed the cart before the horse, figuratively
speaking. Simply put, they have ignored the hierarchy of
courts outlined in Rule 65, Section 4[11] of the 1997
Rules of Civil Procedure. Seeking judicial review at the
earliest opportunity does not mean immediately
elevating the matter to this Court. Earliest opportunity
means that the question of unconstitutionality of the act
in question should have been immediately raised in the
proceedings in the court below. Thus, the petitioners
should have moved to quash the separate indictments
or moved to dismiss the cases in the proceedings in the
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trial courts on the ground of unconstitutionality of B.P.
Blg. 22. But the records show that petitioners failed to
initiate such moves in the proceedings below. Needless
to emphasize, this Court could not entertain questions
on the invalidity of a statute where that issue was not
specifically raised, insisted upon, and adequately
argued.[12] Taking into account the early stage of the trial
proceedings below, the instant petitions are patently
premature.
Nor do we find the constitutional question herein raised
to be the very lis mota presented in the controversy
below. Every law has in its favor the presumption of
constitutionality, and to justify its nullification, there
must be a clear and unequivocal breach of the
Constitution, and not one that is doubtful, speculative or
argumentative.[13] We have examined the contentions of
the petitioners carefully; but they still have to persuade
us that B.P. Blg. 22 by itself or in its implementation
transgressed a provision of the Constitution. Even the
thesis of petitioner Dy that the present economic and
financial crisis should be a basis to declare the Bouncing
Checks Law constitutionally infirm deserves but scant
consideration. As we stressed in Lozano, it is precisely
during trying times that there exists a most compelling
reason to strengthen faith and confidence in the
financial system and any practice tending to destroy
confidence in checks as currency substitutes should be
deterred, to prevent havoc in the trading and financial
communities. Further, while indeed the metropolitan
trial courts may be burdened immensely by bouncing
checks cases now, that fact is immaterial to the alleged
invalidity of the law being assailed. The solution to the
clogging of dockets in lower courts lies elsewhere.
WHEREFORE, the instant petitions are DISMISSED for
utter lack of merit. SO ORDERED.

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