Cases

Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 191002 April 20, 2010
ARTURO M. DE CASTRO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL - ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE

JUDICIARY, ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLE’S
LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER,
represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal
capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG BAYAN
(BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES
(COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY
GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA
KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN
PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON;
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE
EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN
MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN F. BELLO
and LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented
by YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA.
VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON;
AQUILINO Q. PIMENTEL, JR.;Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B. INTING (IBPGovernor-
Eastern Visayas), Petitioners,
vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, Respondents.
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition
for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or
before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and
submit to the President the short list of nominees corresponding thereto in accordance with this decision.
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting (G.R. No. 191342), and
Philippine Bar Association (G.R. No. 191420), as well as intervenors Integrated Bar of the Philippines-Davao del Sur (IBP-
Davao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera; Bagong Alyansang Bayan and others (BAYAN, et al.);
Alfonso V. Tan, Jr.; the Women Trial Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell John L.
Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.), filed their respective motions for reconsideration.
Also filing a motion for reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated intervention was allowed.
We summarize the arguments and submissions of the various motions for reconsideration, in the aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the issue of whether or not the power to designate the
Chief Justice belonged to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because it sought a mere declaratory judgment and did not
involve a justiciable controversy.
3. All Justices of the Court should participate in the next deliberations. The mere fact that the Chief Justice sits as
ex officio head of the JBC should not prevail over the more compelling state interest for him to participate as a
Member of the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an interpretation that exempts judicial appointments
from the express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made distinctions and has created exemptions when
none exists.
3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because it limits an executive, not a
judicial, power.
4. Resort to the deliberations of the Constitutional Commission is superfluous, and is powerless to vary the terms
of the clear prohibition.
5. The Court has given too much credit to the position taken by Justice Regalado. Thereby, the Court has raised
the Constitution to the level of a venerated text whose intent can only be divined by its framers as to be outside
the realm of understanding by the sovereign people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question the illegal composition of
the JBC.
Philippine Bar Association
1. The Court’s strained interpretation of the Constitution violates the basic principle that the Court should not
formulate a rule of constitutional law broader than what is required by the precise facts of the case.
2. Considering that Section 15, Article VII is clear and straightforward, the only duty of the Court is to apply it. The
provision expressly and clearly provides a general limitation on the appointing power of the President in
prohibiting the appointment of any person to any position in the Government without any qualification and
distinction.
3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against midnight appointments.
4. The Constitution has installed two constitutional safeguards:- the prohibition against midnight appointments,
and the creation of the JBC. It is not within the authority of the Court to prefer one over the other, for the Court’s
duty is to apply the safeguards as they are, not as the Court likes them to be.
5. The Court has erred in failing to apply the basic principles of statutory construction in interpreting the
Constitution.
6. The Court has erred in relying heavily on the title, chapter or section headings, despite precedents on statutory
construction holding that such headings carried very little weight.
7. The Constitution has provided a general rule on midnight appointments, and the only exception is that on
temporary appointments to executive positions.
8. The Court has erred in directing the JBC to resume the proceedings for the nomination of the candidates to fill
the vacancy to be created by the compulsory retirement of Chief Justice Puno with a view to submitting the list of
nominees for Chief Justice to President Arroyo on or before May 17, 2010. The Constitution grants the Court only
the power of supervision over the JBC; hence, the Court cannot tell the JBC what to do, how to do it, or when to
do it, especially in the absence of a real and justiciable case assailing any specific action or inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion and has indulged in speculations.
10. The constitutional ban on appointments being already in effect, the Court’s directing the JBC to comply with
the decision constitutes a culpable violation of the Constitution and the commission of an election offense.
11. The Court cannot reverse on the basis of a secondary authority a doctrine unanimously formulated by the
Court en banc.
12. The practice has been for the most senior Justice to act as Chief Justice whenever the incumbent is
indisposed. Thus, the appointment of the successor Chief Justice is not urgently necessary.
13. The principal purpose for the ban on midnight appointments is to arrest any attempt to prolong the outgoing
President’s powers by means of proxies. The attempt of the incumbent President to appoint the next Chief Justice
is undeniably intended to perpetuate her power beyond her term of office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to appointments to the
Judiciary. Hence, no cogent reason exists to warrant the reversal of the Valenzuela pronouncement.
2. Section 16, Article VII of the Constitution provides for presidential appointments to the Constitutional
Commissions and the JBC with the consent of the Commission on Appointments. Its phrase "other officers whose
appointments are vested in him in this Constitution" is enough proof that the limitation on the appointing power of
the President extends to appointments to the Judiciary. Thus, Section 14, Section 15, and Section 16 of Article VII
apply to all presidential appointments in the Executive and Judicial Branches of the Government.
3. There is no evidence that the framers of the Constitution abhorred the idea of an Acting Chief Justice in all
cases.
Lim
1. There is no justiciable controversy that warrants the Court’s exercise of judicial review.
2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy in the Court and to other
appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the safeguard under Section 15 of Article VII against
midnight appointments in the Judiciary.
Corvera
1. The Court’s exclusion of appointments to the Judiciary from the Constitutional ban on midnight appointments is
based on an interpretation beyond the plain and unequivocal language of the Constitution.
2. The intent of the ban on midnight appointments is to cover appointments in both the Executive and Judicial
Departments. The application of the principle of verba legis (ordinary meaning) would have obviated dwelling on
the organization and arrangement of the provisions of the Constitution. If there is any ambiguity in Section 15,
Article VII, the intent behind the provision, which is to prevent political partisanship in all branches of the
Government, should have controlled.
3. A plain reading is preferred to a contorted and strained interpretation based on compartmentalization and
physical arrangement, especially considering that the Constitution must be interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation of the framers of the Constitution should yield to the
plain and unequivocal language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and in accord with the
Constitution.
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present a justiciable
controversy. The issues it raised were not yet ripe for adjudication, considering that the office of the Chief Justice
was not yet vacant and that the JBC itself has yet to decide whether or not to submit a list of nominees to the
President.
2. The collective wisdom of Valenzuela Court is more important and compelling than the opinion of Justice
Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the Court has violated the
principle of ut magis valeat quam pereat (which mandates that the Constitution should be interpreted as a whole,
such that any conflicting provisions are to be harmonized as to fully give effect to all). There is no conflict between
the provisions; they complement each other.
4. The form and structure of the Constitution’s titles, chapters, sections, and draftsmanship carry little weight in
statutory construction. The clear and plain language of Section 15, Article VII precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or controversy. The clash of legal rights and interests in
the present case are merely anticipated. Even if it is anticipated with certainty, no actual vacancy in the position of
the Chief Justice has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the Judiciary runs in conflict
with long standing principles and doctrines of statutory construction. The provision admits only one exception,
temporary appointments in the Executive Department. Thus, the Court should not distinguish, because the law
itself makes no distinction.
3. Valenzuela was erroneously reversed. The framers of the Constitution clearly intended the ban on midnight
appointments to cover the members of the Judiciary. Hence, giving more weight to the opinion of Justice
Regalado to reverse the en banc decision in Valenzuela was unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day mandate to fill any vacancy
lasts until August 15, 2010, or a month and a half after the end of the ban. The next President has roughly the
same time of 45 days as the incumbent President (i.e., 44 days) within which to scrutinize and study the
qualifications of the next Chief Justice. Thus, the JBC has more than enough opportunity to examine the
nominees without haste and political uncertainty.1avvphi1
5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article VIII is suspended.
6. There is no basis to direct the JBC to submit the list of nominees on or before May 17, 2010. The directive to
the JBC sanctions a culpable violation of the Constitution and constitutes an election offense.
7. There is no pressing necessity for the appointment of a Chief Justice, because the Court sits en banc, even
when it acts as the sole judge of all contests relative to the election, returns and qualifications of the President and
Vice-President. Fourteen other Members of the Court can validly comprise the Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees for Chief Justice to the
President on or before May 17, 2010, and to continue its proceedings for the nomination of the candidates,
because it granted a relief not prayed for; imposed on the JBC a deadline not provided by law or the Constitution;
exercised control instead of mere supervision over the JBC; and lacked sufficient votes to reverse Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of statutory construction to the
effect that the literal meaning of the law must be applied when it is clear and unambiguous; and that we should
not distinguish where the law does not distinguish.
3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary Act of 1948 already
provides that the power and duties of the office devolve on the most senior Associate Justice in case of a vacancy
in the office of the Chief Justice.
Ubano
1. The language of Section 15, Article VII, being clear and unequivocal, needs no interpretation
2. The Constitution must be construed in its entirety, not by resort to the organization and arrangement of its
provisions.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the pertinent records of the
Constitutional Commission are clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of nominees to the President by May 17, 2010 at the
latest, because no specific law requires the JBC to submit the list of nominees even before the vacancy has
occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the ban on midnight appointments is the temporary
appointment to an executive position. The limitation is in keeping with the clear intent of the framers of the
Constitution to place a restriction on the power of the outgoing Chief Executive to make appointments.
2. To exempt the appointment of the next Chief Justice from the ban on midnight appointments makes the
appointee beholden to the outgoing Chief Executive, and compromises the independence of the Chief Justice by
having the outgoing President be continually influential.
3. The Court’s reversal of Valenzuela without stating the sufficient reason violates the principle of stare decisis.
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing President is prohibited
from making within the prescribed period. Plain textual reading and the records of the Constitutional Commission
support the view that the ban on midnight appointments extends to judicial appointments.
2. Supervision of the JBC by the Court involves oversight. The subordinate subject to oversight must first act not
in accord with prescribed rules before the act can be redone to conform to the prescribed rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present a justiciable
controversy.
Pimentel
1. Any constitutional interpretative changes must be reasonable, rational, and conformable to the general intent of
the Constitution as a limitation to the powers of Government and as a bastion for the protection of the rights of the
people. Thus, in harmonizing seemingly conflicting provisions of the Constitution, the interpretation should always
be one that protects the citizenry from an ever expanding grant of authority to its representatives.
2. The decision expands the constitutional powers of the President in a manner totally repugnant to republican
constitutional democracy, and is tantamount to a judicial amendment of the Constitution without proper authority.
Comments
The Office of the Solicitor General (OSG) and the JBC separately represent in their respective comments, thus:
OSG
1. The JBC may be compelled to submit to the President a short list of its nominees for the position of Chief
Justice.
2. The incumbent President has the power to appoint the next Chief Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the exemption of the Judiciary from the ban on midnight
appointments.1awph!1
5. The Court has the duty to consider and resolve all issues raised by the parties as well as other related matters.
JBC
1. The consolidated petitions should have been dismissed for prematurity, because the JBC has not yet decided
at the time the petitions were filed whether the incumbent President has the power to appoint the new Chief
Justice, and because the JBC, having yet to interview the candidates, has not submitted a short list to the
President.
2. The statement in the decision that there is a doubt on whether a JBC short list is necessary for the President to
appoint a Chief Justice should be struck down as bereft of constitutional and legal basis. The statement
undermines the independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in accord with its constitutional mandate and its
implementing rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the OSG and the JBC were
the only ones the Court has required to do so. He states that the motions for reconsideration were directed at the
administrative matter he initiated and which the Court resolved. His comment asserts:
1. The grounds of the motions for reconsideration were already resolved by the decision and the separate opinion.
2. The administrative matter he brought invoked the Court’s power of supervision over the JBC as provided by
Section 8(1), Article VIII of the Constitution, as distinguished from the Court’s adjudicatory power under Section 1,
Article VIII. In the former, the requisites for judicial review are not required, which was whyValenzuela was
docketed as an administrative matter. Considering that the JBC itself has yet to take a position on when to submit
the short list to the proper appointing authority, it has effectively solicited the exercise by the Court of its power of
supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend the Constitution.
4. The portions of the deliberations of the Constitutional Commission quoted in the dissent of Justice Carpio
Morales, as well as in some of the motions for reconsideration do not refer to either Section 15, Article VII or
Section 4(1), Article VIII, but to Section 13, Article VII (on nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised and argued, not being
new, have all been resolved by the decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis is controlling, and accordingly insist that the Court
has erred in disobeying or abandoning Valenzuela. 1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to adhere to precedent and
not to unsettle things that are settled. It simply means that a principle underlying the decision in one case is deemed of
imperative authority, controlling the decisions of like cases in the same court and in lower courts within the same
jurisdiction, unless and until the decision in question is reversed or overruled by a court of competent authority. The
decisions relied upon as precedents are commonly those of appellate courts, because the decisions of the trial courts may
be appealed to higher courts and for that reason are probably not the best evidence of the rules of law laid down. 2
Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned, necessarily become,
to the extent that they are applicable, the criteria that must control the actuations, not only of those called upon to abide by
them, but also of those duty-bound to enforce obedience to them. 3 In a hierarchical judicial system like ours, the decisions
of the higher courts bind the lower courts, but the courts of co-ordinate authority do not bind each other. The one highest
court does not bind itself, being invested with the innate authority to rule according to its best lights. 4
The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus, the Court, especially
with a new membership, is not obliged to follow blindly a particular decision that it determines, after re-examination, to call
for a rectification.5 The adherence to precedents is strict and rigid in a common-law setting like the United Kingdom, where
judges make law as binding as an Act of Parliament. 6 But ours is not a common-law system; hence, judicial precedents
are not always strictly and rigidly followed. A judicial pronouncement in an earlier decision may be followed as a precedent
in a subsequent case only when its reasoning and justification are relevant, and the court in the latter case accepts such
reasoning and justification to be applicable to the case. The application of the precedent is for the sake of convenience
and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or reversed, and that its wisdom
should guide, if not control, the Court in this case is, therefore, devoid of rationality and foundation. They seem to
conveniently forget that the Constitution itself recognizes the innate authority of the Court en banc to modify or reverse a
doctrine or principle of law laid down in any decision rendered en banc or in division. 7
Second: Some intervenors are grossly misleading the public by their insistence that the Constitutional Commission
extended to the Judiciary the ban on presidential appointments during the period stated in Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from the records of the Constitutional Commission did
not concern either Section 15, Article VII or Section 4(1), Article VIII, but only Section 13, Article VII, a provision on
nepotism. The records of the Constitutional Commission show that Commissioner Hilario G. Davide, Jr. had proposed to
include judges and justices related to the President within the fourth civil degree of consanguinity or affinity among the
persons whom the President might not appoint during his or her tenure. In the end, however, Commissioner Davide, Jr.
withdrew the proposal to include the Judiciary in Section 13, Article VII "(t)o avoid any further complication," 8 such that the
final version of the second paragraph of Section 13, Article VII even completely omits any reference to the Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his
tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and
their subsidiaries.
Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to appointments in the
Judiciary. They aver that the Court either ignored or refused to apply many principles of statutory construction.
The movants gravely err in their posture, and are themselves apparently contravening their avowed reliance on the
principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of the express extension of the ban on
appointments to the Judiciary, insist that the ban applied to the Judiciary under the principle of verba legis. That is self-
contradiction at its worst.
Another instance is the movants’ unhesitating willingness to read into Section 4(1) and Section 9, both of Article VIII, the
express applicability of the ban under Section 15, Article VII during the period provided therein, despite the silence of said
provisions thereon. Yet, construction cannot supply the omission, for doing so would generally constitute an encroachment
upon the field of the Constitutional Commission. Rather, Section 4(1) and Section 9 should be left as they are, given that
their meaning is clear and explicit, and no words can be interpolated in them. 9 Interpolation of words is unnecessary,
because the law is more than likely to fail to express the legislative intent with the interpolation. In other words, the
addition of new words may alter the thought intended to be conveyed. And, even where the meaning of the law is clear
and sensible, either with or without the omitted word or words, interpolation is improper, because the primary source of the
legislative intent is in the language of the law itself. 10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of
the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the
provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President
making appointments within two months before the next presidential elections and up to the end of the President’s or
Acting President’s term does not refer to the Members of the Supreme Court.
We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to suit the purposes of
any quarter.
Final Word
It has been insinuated as part of the polemics attendant to the controversy we are resolving that because all the Members
of the present Court were appointed by the incumbent President, a majority of them are now granting to her the authority
to appoint the successor of the retiring Chief Justice.
The insinuation is misguided and utterly unfair.
The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any claim to the
contrary proceeds from malice and condescension. Neither the outgoing President nor the present Members of the Court
had arranged the current situation to happen and to evolve as it has. None of the Members of the Court could have
prevented the Members composing the Court when she assumed the Presidency about a decade ago from retiring during
her prolonged term and tenure, for their retirements were mandatory. Yet, she is now left with an imperative duty under the
Constitution to fill up the vacancies created by such inexorable retirements within 90 days from their occurrence. Her
official duty she must comply with. So must we ours who are tasked by the Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with finality.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice
CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.
ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

ARTURO D. BRION DIOSDADO M. PERALTA

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

JOSE CATRAL MENDOZA

Associate Justice
C E RTI F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Resolution
had been reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Footnotes
1
In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges
of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively, A.M. No. 98-
5-01-SC, November 9, 1998, 298 SCRA 408.
2
Price & Bitner, Effective Legal Research, Little, Brown & Co., New York (1962), § 9.7.
3
Caltex (Phil.), Inc. v. Palomar, No. L-19650, September 29, 1966, 18 SCRA 247
4
E.g., Dias, Jurisprudence, Butterworths, London, 1985, Fifth Edition, p. 127.
5
Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No. 118509, September 5, 1996, 261 SCRA 464.
6
See Calabresi, A Common Law for the Age of Statutes, Harvard University Press, p. 4 (1982) and endnote 12 of
the page, which essentially recounts that the strict application of the doctrine of stare decisis is true only in a
common-law jurisdiction like England (citing Wise, The Doctrine of Stare Decisis, 21 Wayne Law Review, 1043,
1046-1047 (1975). Calabresi recalls that the English House of Lords decided in 1898 (London Tramways Co. v.
London County Council, A.C. 375) that they could not alter precedents laid down by the House of Lords acting as
the supreme court in previous cases, but that such precedents could only be altered by an Act of Parliament, for
to do otherwise would mean that the courts would usurp legislative function; he mentions that in 1966, Lord
Chancellor Gardiner announced in a Practice Statement a kind of general memorandum from the court that while:
"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the
law," they "nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case
and also unduly restrict the proper development of the law. They propose, therefore, to modify their present
practice and, while treating former decisions of this House as normally binding, to depart from a previous decision
when it appears right to do so." (Calabresi cites Leach, Revisionism in the House of Lords: The Bastion of Rigid
Stare Decisis Falls, 80 Harvard Law Review, 797 (1967).
7
Section 4 (2), Article VIII, provides:
xxx
(3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of
the Members who actually took part in the deliberations on the issues in the case and voted thereon, and
in no case, without the concurrence of at least three of such Members. When the required number is not
obtained, the case shall be decided en banc; Provided, that no doctrine or principle of law laid down by
the court in a decision rendered en banc or in division may be modified or reversed except by the court
sitting en banc.
8
Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC No. 44. pp. 542-543.
9
Smith v. State, 66 Md. 215, 7 Atl. 49.
10
State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
CARPIO MORALES, J.:
No compelling reason exists for the Court to deny a reconsideration of the assailed Decision. The various motions for
reconsideration raise hollering substantial arguments and legitimately nagging questions which the Court must meet head
on.
If this Court is to deserve or preserve its revered place not just in the hierarchy but also in history, passion for reason
demands the issuance of an extended and extensive resolution that confronts the ramifications and repercussions of its
assailed Decision. Only then can it offer an illumination that any self-respecting student of the law clamors and any
adherent of the law deserves. Otherwise, it takes the risk of reeking of an objectionable air of supreme judicial arrogance.
It is thus imperative to settle the following issues and concerns:
Whether the incumbent President is constitutionally proscribed from appointing the successor of Chief Justice
Reynato S. Puno upon his retirement on May 17, 2010 until the ban ends at 12:00 noon of June 30, 2010
1. In interpreting the subject constitutional provisions, the Decision disregarded established canons of statutory
construction. Without explaining the inapplicability of each of the relevant rules, the Decision immediately placed
premium on the arrangement and ordering of provisions, one of the weakest tools of construction, to arrive at its
conclusion.
2. In reversing Valenzuela, the Decision held that the Valenzuela dictum did not firmly rest on ConCom
deliberations, yet it did not offer to cite a material ConCom deliberation. It instead opted to rely on the memory of
Justice Florenz Regalado which incidentally mentioned only the "Court of Appeals." The Decision’s conclusion
must rest on the strength of its own favorable Concom deliberation, none of which to date has been cited.
3. Instead of choosing which constitutional provision carves out an exception from the other provision, the most
legally feasible interpretation (in the limited cases of temporary physical or legal impossibility of compliance, as
expounded in my Dissenting Opinion) is to consider the appointments ban or other substantial obstacle as a
temporary impossibility which excuses or releases the constitutional obligation of the Office of the President for
the duration of the ban or obstacle.
In view of the temporary nature of the circumstance causing the impossibility of performance, the outgoing President is
released from non-fulfillment of the obligation to appoint, and the duty devolves upon the new President. The delay in the
fulfillment of the obligation becomes excusable, since the law cannot exact compliance with what is impossible. The 90-
day period within which to appoint a member of the Court is thus suspended and the period could only start or resume to
run when the temporary obstacle disappears (i.e., after the period of the appointments ban; when there is already a
quorum in the JBC; or when there is already at least three applicants).
Whether the Judicial and Bar Council is obliged to submit to the President the shortlist of nominees for the
position of Chief Justice (or Justice of this Court) on or before the occurrence of the vacancy.
1. The ruling in the Decision that obligates the JBC to submit the shortlist to the President on or before the
occurrence of the vacancy in the Court runs counter to the Concom deliberations which explain that the 90-day
period is allotted for both the nomination by the JBC and the appointment by the President. In the move to
increase the period to 90 days, Commissioner Romulo stated that "[t]he sense of the Committee is that 60 days is
awfully short and that the [Judicial and Bar] Council, as well as the President, may have difficulties with that."
2. To require the JBC to submit to the President a shortlist of nominees on or before the occurrence of vacancy in
the Court leads to preposterous results. It bears reiterating that the requirement is absurd when,inter alia, the
vacancy is occasioned by the death of a member of the Court, in which case the JBC could never anticipate the
death of a Justice, and could never submit a list to the President on or before the occurrence of vacancy.
3. The express allowance in the Constitution of a 90-day period of vacancy in the membership of the Courtrebuts
any public policy argument on avoiding a vacuum of even a single day without a duly appointed Chief Justice.
Moreover, as pointed out in my Dissenting Opinion, the practice of having an acting Chief Justice in the
interregnum is provided for by law, confirmed by tradition, and settled by jurisprudence to be an internal matter.
The Resolution of the majority, in denying the present Motions for Reconsideration, failed to rebut the foregoing crucial
matters.
I, therefore, maintain my dissent and vote to GRANT the Motions for Reconsideration of the Decision of March 17, 2010
insofar as it holds that the incumbent President is not constitutionally proscribed from appointing the successor of Chief
Justice Reynato S. Puno upon his retirement on May 17, 2010 until the ban ends at 12:00 noon of June 30, 2010 and that
the Judicial and Bar Council is obliged to submit to the President the shortlist of nominees for the position of Chief Justice
on or before May 17, 2010.
CONCHITA CARPIO MORALES

Associate Justice
The Lawphil Project - Arellano Law Foundation
CONCURRING AND DISSENTING OPINION
BRION, J.:
The Motions for Reconsideration
After sifting through the motions for reconsideration, I found that the arguments are largely the same arguments that we
have passed upon, in one form or another, in the various petitions. Essentially, the issues boil down to justiciability; the
conflict of constitutional provisions; the merits of the cited constitutional deliberations; and the status and effect of the
Valenzuela1 ruling. Even the motion for reconsideration of the Philippine Bar Association (G.R. No. 191420), whose
petition I did not expressly touch upon in my Separate Opinion, basically dwells on these issues.
I have addressed most, if not all, of these issues and I submit my Separate Opinion 2 as my basic response to the motions
for reconsideration, supplemented by the discussions below.
As I reflected in my Separate Opinion (which three other Justices joined), 3 the election appointment ban under Article VII,
Section 15 of the Constitution should not apply to the appointment of Members of the Supreme Court whose period for
appointment is separately provided for under Article VIII, Section 4(1). I shared this conclusion with the Court’s Decision
although our reasons differed on some points.
I diverged fully from the Decision on the question of whether we should maintain or reverse our ruling in Valenzuela. I
maintained that it is still good law; no reason exists to touch the ruling as its main focus – the application of the election
ban on the appointment of lower court judges under Article VIII, Section 9 of the Constitution – is not even an issue in the
present case and was discussed only because the petitions incorrectly cited the ruling as authority on the issue of the
Chief Justice’s appointment. The Decision proposed to reverse Valenzuela but only secured the support of five (5) votes,
while my Separate Opinion in support of Valenzuela had four (4) votes. Thus, on the whole, the Decision did not prevail in
reversing Valenzuela, as it only had five (5) votes in a field of 12 participating Members of the Court. Valenzuela should
therefore remain, as of the filing of this Opinion, as a valid precedent.
Acting on the present motions for reconsideration, I join the majority in denying the motions with respect to the Chief
Justice issue, although we differ in some respects on the reasons supporting the denial. I dissent from the conclusion that
the Valenzuela ruling should be reversed. My divergence from the majority’s reasons and conclusions compels me to write
this Concurring and Dissenting Opinion.
The Basic Requisites / Justiciability
One marked difference between the Decision and my Separate Opinion is our approach on the basic
requisites/justiciability issues. The Decision apparently glossed over this aspect of the case, while I fully explained why the
De Castro4 and Peralta5 petitions should be dismissed outright. In my view, these petitions violated the most basic
requirements of their chosen medium for review – a petition for certiorari and mandamus under Rule 65 of the Rules of
Court.
The petitions commonly failed to allege that the Judicial and Bar Council (JBC) performs judicial or quasi-judicial
functions, an allegation that the petitions could not really make, since the JBC does not really undertake these functions
and, for this reason, cannot be the subject of a petition for certiorari; hence, the petitions should be dismissed outright.
They likewise failed to facially show any failure or refusal by the JBC to undertake a constitutional duty to justify the
issuance of a writ of mandamus; they invoked judicial notice that we could not give because there was, and is, no JBC
refusal to act.6 Thus, the mandamus aspects of these petitions should have also been dismissed outright. The ponencia,
unfortunately, failed to fully discuss these legal infirmities.
The motions for reconsideration lay major emphasis on the alleged lack of an actual case or controversy that made the
Chief Justice’s appointment a justiciable issue. They claim that the Court cannot exercise the power of judicial review
where there is no clash of legal rights and interests or where this clash is merely anticipated, although the anticipated
event shall come with certainty.7
What the movants apparently forgot, focused as they were on their respective petitions, is that the present case is not a
single-petition case that rises or falls on the strength of that single petition. The present case involves various petitions
and interventions,8 not necessarily pulling towards the same direction, although each one is focused on the issue of
whether the election appointment ban under Article VII, Section 15 of the Constitution should apply to the appointment of
the next Chief Justice of the Supreme Court.
Among the petitions filed were those of Tolentino (G.R. No. 191342), Soriano (G.R. No. 191032) and Mendoza (A.M. No.
10-2-5-SC). The first two are petitions for prohibition under Section 2 of Rule 65 of the Rules of Court. 9While they
commonly share this medium of review, they differ in their supporting reasons. The Mendoza petition, on the other hand,
is totally different – it is a petition presented as an administrative matter (A.M.) in the manner that the Valenzuela case
was an A.M. case. As I pointed out in the Separate Opinion, the Court uses the A.M. docket designation on matters
relating to its exercise of supervision over all courts and their personnel. 10 I failed to note then, but I make of record now,
that court rules and regulations – the outputs in the Court’s rulemaking function – are also docketed as A.M. cases.
That an actual case or controversy involving a clash of rights and interests exists is immediately and patently obvious in
the Tolentino and Soriano petitions. At the time the petitions were filed, the JBC had started its six-phase nomination
process that would culminate in the submission of a list of nominees to the President of the Philippines for appointive
action. Tolentino and Soriano – lawyers and citizens with interest in the strict observance of the election ban – sought to
prohibit the JBC from continuing with this process. The JBC had started to act, without any prodding from the Court,
because of its duty to start the nomination process but was hampered by the petitions filed and the legal questions raised
that only the Supreme Court can settle with finality. 11 Thus, a clash of interests based on law existed between the
petitioners and the JBC. To state the obvious, a decision in favor of Tolentino or Soriano would result in a writ of
prohibition that would direct the JBC not to proceed with the nomination process.
The Mendoza petition cited the effect of a complete election ban on judicial appointments (in view of the already high level
of vacancies and the backlog of cases) as basis, and submitted the question as an administrative matter that the Court, in
the exercise of its supervisory authority over the Judiciary and the JBC itself, should act upon. At the same time, it cited
the "public discourse and controversy" now taking place because of the application of the election ban on the appointment
of the Chief Justice, pointing in this regard to the very same reasons mentioned in Valenzuela about the need to resolve
the issue and avoid the recurrence of conflict between the Executive and the Judiciary, and the need to "avoid polemics
concerning the matter."12
I recognized in the Separate Opinion that, unlike in Valenzuela where an outright defiance of the election ban took place,
no such obvious triggering event transpired in the Mendoza petition. 13 Rather, the Mendoza petition looked to the
supervisory power of the Court over judicial personnel and over the JBC as basis to secure a resolution of the election
ban issue. The JBC, at that time, had indicated its intent to look up to the Court’s supervisory power and role as the final
interpreter of the Constitution to guide it in responding to the challenges it confronts. 14 To me, this was "a point no less
critical, from the point of view of supervision, than the appointment of the two judges during the election ban period in
Valenzuela."15
In making this conclusion, I pointed out in my Separate Opinion the unavoidable surrounding realities evident from the
confluence of events, namely: (1) an election to be held on May 10, 2010; (2) the retirement of the Chief Justice on May
17, 2010; (3) the lapse of the terms of the elective officials from the President to the congressmen on June 30, 2010; (4)
the delay before the Congress can organize and send its JBC representatives; and (5) the expiration of the term of a non-
elective JBC member in July 2010.16 All these – juxtaposed with the Court’s supervision over the JBC, the latter’s need for
guidance, and the existence of an actual controversy on the same issues bedeviling the JBC – in my view, were sufficient
to save the Mendoza petition from being a mere request for opinion or a petition for declaratory relief that falls under the
jurisdiction of the lower court. This recognition is beyond the level of what this Court can do in handling a moot and
academic case – usually, one that no longer presents a judiciable controversy but one that can still be ruled upon at the
discretion of the court when the constitutional issue is of paramount public interest and controlling principles are needed to
guide the bench, the bar and the public.17
To be sure, this approach in recognizing when a petition is actionable is novel. An overriding reason for this approach can
be traced to the nature of the petition, as it rests on the Court’s supervisory authority and relates to the exercise of the
Court’s administrative rather than its judicial functions (other than these two functions, the Court also has its rulemaking
function under Article VIII, Section 5(5) of the Constitution). Strictly speaking, the Mendoza petition calls for directions from
the Court in the exercise of its power of supervision over the JBC, 18 not on the basis of the power of judicial review. 19 In
this sense, it does not need the actual clash of interests of the type that a judicial adjudication requires. All that must be
shown is the active need for supervision to justify the Court’s intervention as supervising authority.
Under these circumstances, the Court’s recognition of the Mendoza petition was not an undue stretch of its constitutional
powers. If the recognition is unusual at all, it is so only because of its novelty; to my knowledge, this is the first time ever in
Philippine jurisprudence that the supervisory authority of the Court over an attached agency has been highlighted in this
manner. Novelty, per se, however, is not a ground for objection nor a mark of infirmity for as long as the novel move is
founded in law. In this case, as in the case of the writ of amparo and habeas data that were then novel and avowedly
activist in character, sufficient legal basis exists to actively invoke the Court’s supervisory authority – granted under the
Constitution, no less – as basis for action.
To partly quote the wording of the Constitution, Article VIII, Section 8(1) and (5) provide that "A Judicial and Bar Council is
hereby created under the supervision of the Supreme Court… It may exercise such other functions and duties as the
Supreme Court may assign to it." Supervision, as a legal concept, more often than not, is defined in relation with the
concept of control.20 In Social Justice Society v. Atienza,21 we defined "supervision" as follows:
[Supervision] means overseeing or the power or authority of an officer to see that subordinate officers perform their duties.
If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them
perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside
what a subordinate officer ha[s] done in the performance of his duties and to substitute the judgment of the former for that
of the latter.
Under this definition, the Court cannot dictate on the JBC the results of its assigned task, i.e., who to recommend or what
standards to use to determine who to recommend. It cannot even direct the JBC on how and when to do its duty, but it
can, under its power of supervision, direct the JBC to "take such action or step as prescribed by law to make them
perform their duties," if the duties are not being performed because of JBC’s fault or inaction, or because of extraneous
factors affecting performance. Note in this regard that, constitutionally, the Court can also assign the JBC other functions
and duties – a power that suggests authority beyond what is purely supervisory.
Where the JBC itself is at a loss on how to proceed in light of disputed constitutional provisions that require
interpretation,22 the Court is not legally out of line – as the final authority on the interpretation of the Constitution and as
the entity constitutionally-tasked to supervise the JBC – in exercising its oversight function by clarifying the interpretation
of the disputed constitutional provision to guide the JBC. In doing this, the Court is not simply rendering a general legal
advisory; it is providing concrete and specific legal guidance to the JBC in the exercise of its supervisory authority, after
the latter has asked for assistance in this regard. That the Court does this while concretely resolving actual controversies
(the Tolentino and Soriano petitions) on the same issue immeasurably strengthens the intrinsic correctness of the Court’s
action.
It may be asked: why does the Court have to recognize the Mendoza petition when it can resolve the conflict between
Article VII, Section 15 and Article VIII, Section 4(1) through the Tolentino and Soriano petitions?
The answer is fairly simple and can be read between the lines of the above explanation on the relationship between the
Court and the JBC. First, administrative is different from judicial function and providing guidance to the JBC can only be
appropriate in the discharge of the Court’s administrative function. Second, the resolution of the Tolentino and Soriano
petitions will lead to rulings directly related to the underlying facts of these petitions, without clear guidelines to the JBC on
the proper parameters to observe vis-à-vis the constitutional dispute along the lines the JBC needs. In fact, concrete
guidelines addressed to the JBC in the resolution of the Tolentino/Soriano petitions may even lead to accusations that the
Court’s resolution is broader than is required by the facts of the petitions. The Mendoza petition, because it pertains
directly to the performance of the JBC’s duty and the Court’s supervisory authority, allows the issuance of precise
guidelines that will enable the JBC to fully and seasonably comply with its constitutional mandate.
I hasten to add that the JBC’s constitutional task is not as simple as some people think it to be. The process of preparing
and submitting a list of nominees is an arduous and time-consuming task that cannot be done overnight. It is a six-step
process lined with standards requiring the JBC to attract the best available candidates, to examine and investigate them,
to exhibit transparency in all its actions while ensuring that these actions conform to constitutional and statutory standards
(such as the election ban on appointments), to submit the required list of nominees on time, and to ensure as well that all
these acts are politically neutral. On the time element, the JBC list for the Supreme Court has to be submitted on or before
the vacancy occurs given the 90-day deadline that the appointing President is given in making the appointment. The list
will be submitted, not to the President as an outgoing President, nor to the election winner as an incoming President, but
to the President of the Philippines whoever he or she may be. If the incumbent President does not act on the JBC list
within the time left in her term, the same list shall be available to the new President for him to act upon. In all these, the
Supreme Court bears the burden of overseeing that the JBC’s duty is done, unerringly and with utmost dispatch; the Court
cannot undertake this supervision in a manner consistent with the Constitution’s expectation from the JBC unless it adopts
a pro-active stance within the limits of its supervisory authority.
The Disputed Provisions
The movants present their arguments on the main issue at several levels. Some argue that the disputed constitutional
provisions – Article VII, Section 15 and Article VIII, Section 4(1) – are clear and speak for themselves on what the
Constitution covers in banning appointments during the election period. 23 One even posits that there is no conflict because
both provisions can be given effect without one detracting against the full effectiveness of the other, 24 although the effect is
to deny the sitting President the option to appoint in favor of a deferment for the incoming President’s action. Still others,
repeating their original arguments, appeal to the principles of interpretation and latin maxims to prove their point. 25
In my discussions in the Separate Opinion, I stated upfront my views on how the disputed provisions interact with each
other. Read singly and in isolation, they appear clear (this reading applies the "plain meaning rule" that Tolentino
advocates in his motion for reconsideration, as explained below). Arrayed side by side with each other and considered in
relation with the other provisions of the Constitution, particularly its structure and underlying intents, the conflict however
becomes obvious and unavoidable.
Section 15 on its face disallows any appointment in clear negative terms ("shall not make") without specifying the
appointments covered by the prohibition.26 From this literal and isolated reading springs the argument that no exception is
provided (except that found in Section 15 itself) so that even the Judiciary is covered by the ban on appointments.
On the other hand, Section 4(1) is likewise very clear and categorical in its terms: any vacancy in the Court shall be filled
within 90 days from its occurrence.27 In the way of Section 15, Section 4(1) is also clear and categorical and provides no
exception; the appointment refers solely to the Members of the Supreme Court and does not mention any period that
would interrupt, hold or postpone the 90-day requirement.
From this perspective, the view that no conflict exists cannot be seriously made, unless with the mindset that one
provision controls and the other should yield. Many of the petitions in fact advocate this kind of reading, some of them
openly stating that the power of appointment should be reserved for the incoming President. 28 The question, however, is
whether – from the viewpoint of strict law and devoid of the emotionalism and political partisanship that permeate the
present Philippine political environment – this kind of mindset can really be adopted in reading and applying the
Constitution.
In my view, this kind of mindset and the conclusion it inevitably leads to cannot be adopted; the provisions of the
Constitution cannot be read in isolation from what the whole contains. To be exact, the Constitution must be read and
understood as a whole, reconciling and harmonizing apparently conflicting provisions so that all of them can be given full
force and effect,29 unless the Constitution itself expressly states otherwise. 30
Not to be forgotten in reading and understanding the Constitution are the many established underlying constitutional
principles that we have to observe and respect if we are to be true to the Constitution. These principles – among them the
principles of checks and balances and separation of powers – are not always expressly stated in the Constitution, but no
one who believes in and who has studied the Constitution can deny that they are there and deserve utmost attention,
respect, and even priority consideration.
In establishing the structures of government, the ideal that the Constitution seeks to achieve is one of balance among the
three great departments of government – the Executive, the Legislative and the Judiciary, with each department
undertaking its constitutionally-assigned task as a check against the exercise of power by the others, while all three
departments move forward in working for the progress of the nation. Thus, the Legislature makes the laws and is supreme
in this regard, in the way that the Executive is supreme in enforcing and administering the law, while the Judiciary
interprets both the Constitution and the law. Any provision in each of the Articles on these three departments 31 that
intrudes into the other must be closely examined if the provision affects and upsets the desired balance.
Under the division of powers, the President as Chief Executive is given the prerogative of making appointments, subject
only to the legal qualification standards, to the checks provided by the Legislature’s Commission on Appointments (when
applicable) and by the JBC for appointments in the Judiciary, and to the Constitution’s own limitations. Conflict comes in
when the Constitution laid down Article VII, Section 15 limiting the President’s appointing power during the election period.
This limitation of power would have been all-encompassing and would, thus, have extended to all government positions
the President can fill, had the Constitution not inserted a provision, also on appointments, in the Article on the Judiciary
with respect to appointments to the Supreme Court. This conflict gives rise to the questions: which provision should
prevail, or should both be given effect? Or should both provisions yield to a higher concern – the need to maintain the
integrity of our elections?
A holistic reading of the Constitution – a must in constitutional interpretation – dictates as a general rule that the tasks
assigned to each department and their limitations should be given full effect to fulfill the constitutional purposes under the
check and balance principle, unless the Constitution itself expressly indicates its preference for one task, concern or
standard over the others,32 or unless this Court, in its role as interpreter of the Constitution, has spoken on the appropriate
interpretation that should be made.33
In considering the interests of the Executive and the Judiciary, a holistic approach starts from the premise that the
constitutional scheme is to grant the President the power of appointment, subject to the limitation provided under Article
VII, Section 15. At the same time, the Judiciary is assured, without qualifications under Article VIII, Section 4(1), of the
immediate appointment of Members of the Supreme Court, i.e., within 90 days from the occurrence of the vacancy. If both
provisions would be allowed to take effect, as I believe they should, the limitation on the appointment power of the
President under Article VII, Section 15 should itself be limited by the appointment of Members of the Court pursuant to
Article VIII, Section 4(1), so that the provision applicable to the Judiciary can be given full effect without detriment to the
President’s appointing authority. This harmonization will result in restoring to the President the full authority to appoint
Members of the Supreme Court pursuant to the combined operation of Article VII, Section 15 and Article VIII, Section 4(1).
Viewed in this light, there is essentially no conflict, in terms of the authority to appoint, between the Executive and
Judiciary; the President would effectively be allowed to exercise the Executive’s traditional presidential power of
appointment while respecting the Judiciary’s own prerogative. In other words, the President retains full powers to appoint
Members of the Court during the election period, and the Judiciary is assured of a full membership within the time frame
given.
Interestingly, the objection to the full application of Article VIII, Section 4(1) comes, not from the current President, but
mainly from petitioners echoing the present presidential candidates, one of whom shall soon be the incoming President.
They do not, of course, cite reasons of power and the loss of the opportunity to appoint the Chief Justice; many of the
petitioners/intervenors oppose the full application of Article VIII, Section 4(1) based on the need to maintain the integrity of
the elections through the avoidance of a "midnight appointment."
This "integrity" reason is a given in a democracy and can hardly be opposed on the theoretical plane, as the integrity of
the elections must indeed prevail in a true democracy. The statement, however, begs a lot of questions, among them the
question of whether the appointment of a full Court under the terms of Article VIII, Section 4(1) will adversely affect or
enhance the integrity of the elections.
In my Separate Opinion, I concluded that the appointment of a Member of the Court even during the election period per se
implies no adverse effect on the integrity of the election; a full Court is ideal during this period in light of the Court’s unique
role during elections. I maintain this view and fully concur in this regard with the majority.
During the election period, the court is not only the interpreter of the Constitution and the election laws; other than the
Commission on Elections and the lower courts to a limited extent, the Court is likewise the highest impartial recourse
available to decisively address any problem or dispute arising from the election. It is the leader and the highest court in
the Judiciary, the only one of the three departments of government directly unaffected by the election. The Court is
likewise the entity entrusted by the Constitution, no less, with the gravest election-related responsibilities. In particular, it is
the sole judge of all contests in the election of the President and the Vice-President, with leadership and participation as
well in the election tribunals that directly address Senate and House of Representatives electoral disputes. With this grant
of responsibilities, the Constitution itself has spoken on the trust it reposes on the Court on election matters. This reposed
trust, to my mind, renders academic any question of whether an appointment during the election period will adversely
affect the integrity of the elections – it will not, as the maintenance of a full Court in fact contributes to the enforcement of
the constitutional scheme to foster a free and orderly election.
In reading the motions for reconsideration against the backdrop of the partisan political noise of the coming elections, one
cannot avoid hearing echoes from some of the arguments that the objection is related, more than anything else, to their
lack of trust in an appointment to be made by the incumbent President who will soon be bowing out of office. They label
the incumbent President’s act as a "midnight appointment" – a term that has acquired a pejorative meaning in
contemporary society.
As I intimated in my Separate Opinion, the imputation of distrust can be made against any appointing authority, whether
outgoing or incoming. The incoming President himself will be before this Court if an election contest arises; any President,
past or future, would also naturally wish favorable outcomes in legal problems that the Court would resolve. These
possibilities and the potential for continuing influence in the Court, however, cannot be active considerations in resolving
the election ban issue as they are, in their present form and presentation, all speculative. If past record is to be the
measure, the record of past Chief Justices and of this Court speaks for itself with respect to the Justices’ relationship with,
and deferral to, the appointing authority in their decisions.
What should not be forgotten in examining the records of the Court, from the prism of problems an electoral exercise may
bring, is the Court’s unique and proven capacity to intervene and diffuse situations that are potentially explosive for the
nation. EDSA II particularly comes to mind in this regard (although it was an event that was not rooted in election
problems) as it is a perfect example of the potential for damage to the nation that the Court can address and has
addressed. When acting in this role, a vacancy in the Court is not only a vote less, but a significant contribution less in the
Court’s deliberations and capacity for action, especially if the missing voice is the voice of the Chief Justice.
Be it remembered that if any EDSA-type situation arises in the coming elections, it will be compounded by the lack of
leaders because of the lapse of the President’s term by June 30, 2010; by a possible failure of succession if for some
reason the election of the new leadership becomes problematic; and by the similar absence of congressional leadership
because Congress has not yet convened to organize itself. 34 In this scenario, only the Judiciary of the three great
departments of government stands unaffected by the election and should at least therefore be complete to enable it to
discharge its constitutional role to its fullest potential and capacity. To state the obvious, leaving the Judiciary without any
permanent leader in this scenario may immeasurably complicate the problem, as all three departments of government will
then be leaderless.
To stress what I mentioned on this point in my Separate Opinion, the absence of a Chief Justice will make a lot of
difference in the effectiveness of the Court as he or she heads the Judiciary, sits as Chair of the JBC and of the
Presidential Electoral Tribunal, presides over impeachment proceedings, and provides the moral suasion and leadership
that only the permanent mantle of the Chief Justice can bestow. EDSA II is just one of the many lessons from the past
when the weightiest of issues were tackled and promptly resolved by the Court. Unseen by the general public in all these
was the leadership that was there to ensure that the Court would act as one, in the spirit of harmony and stability although
divergent in their individual views, as the Justices individually make their contributions to the collegial result. To some, this
leadership may only be symbolic, as the Court has fully functioned in the past even with an incomplete membership or
under an Acting Chief Justice. But as I said before, an incomplete Court "is not a whole Supreme Court; it will only be a
Court with 14 members who would act and vote on all matters before it." To fully recall what I have said on this matter:
The importance of the presence of one Member of the Court can and should never be underestimated, particularly on
issues that may gravely affect the nation. Many a case has been won or lost on the basis of one vote. On an issue of the
constitutionality of a law, treaty or statute, a tie vote – which is possible in a 14 member court – means that the
constitutionality is upheld. This was our lesson in Isagani Cruz v. DENR Secretary.
More than the vote, Court deliberation is the core of the decision-making process and one voice is less is not only a vote
less but a contributed opinion, an observation, or a cautionary word less for the Court. One voice can be a big difference if
the missing voice is that of the Chief Justice.
Without meaning to demean the capability of an Acting Chief Justice, the ascendancy in the Court of a permanent sitting
Chief Justice cannot be equaled. He is the first among equals – a primus inter pares – who sets the tone for the Court and
the Judiciary, and who is looked up to on all matters, whether administrative or judicial. To the world outside the Judiciary,
he is the personification of the Court and the whole Judiciary. And this is not surprising since, as Chief Justice, he not only
chairs the Court en banc, but chairs as well the Presidential Electoral Tribunal that sits in judgment over election disputes
affecting the President and the Vice-President. Outside of his immediate Court duties, he sits as Chair of the Judicial and
Bar Council, the Philippine Judicial Academy and, by constitutional command, presides over the impeachment of the
President. To be sure, the Acting Chief Justice may be the ablest, but he is not the Chief Justice without the mantle and
permanent title of the Office, and even his presence as Acting Chief Justice leaves the Court with one member less.
Sadly, this member is the Chief Justice; even with an Acting Chief Justice, the Judiciary and the Court remains
headless. 35
Given these views, I see no point in re-discussing the finer points of technical interpretation and their supporting latin
maxims that I have addressed in my Separate Opinion and now feel need no further elaboration; maxims can be found to
serve a pleader’s every need and in any case are the last interpretative tools in constitutional interpretation. Nor do I see
any point in discussing arguments based on the intent of the framers of the Constitution now cited by the parties in the
contexts that would serve their own ends. As may be evident in these discussions, other than the texts of the disputed
provisions, I prefer to examine their purposes and the consequences of their application, understood within the context of
democratic values. Past precedents are equally invaluable for the lead, order, and stability they contribute, but only if they
are in point, certain, and still alive to current realities, while the history of provisions, including the intents behind them, are
primarily important to ascertain the purposes the provisions serve.
From these perspectives and without denigrating the framers’ historical contributions, I say that it is the Constitution that
now primarily speaks to us in this case and what we hear are its direct words, not merely the recorded isolated debates
reflecting the personal intents of the constitutional commissioners as cited by the parties to fit their respective theories.
The voice speaking the words of the Constitution is our best guide, as these words will unalterably be there for us to read
in the context of their purposes and the nation’s needs and circumstances. This Concurring and Dissenting Opinion hears
and listens to that voice.
The Valenzuela Decision
The ponencia’s ruling reversing Valenzuela, in my view, is out of place in the present case, since at issue here is the
appointment of the Chief Justice during the period of the election ban, not the appointment of lower court judges that
Valenzuela resolved. To be perfectly clear, the conflict in the constitutional provisions is not confined to Article VII, Section
15 and Article VIII, Section 4(1) with respect to the appointment of Members of the Supreme Court; even before the
Valenzuela ruling, the conflict already existed between Article VII, Section 15 and Article VIII, Section 9 – the provision on
the appointment of the justices and judges of courts lower than the Supreme Court. After this Court’s ruling in Valenzuela,
no amount of hairsplitting can result in the conclusion that Article VII, Section 15 applied the election ban over the whole
Judiciary, including the Supreme Court, as the facts and the fallo of Valenzuela plainly spoke of the objectionable
appointment of two Regional Trial Court judges. To reiterate, Valenzuela only resolved the conflict between Article VII,
Section 15 and appointments to the Judiciary under Article VIII, Section 9.
If Valenzuela did prominently figure at all in the present case, the prominence can be attributed to the petitioners’ mistaken
reading that this case is primary authority for the dictum that Article VII, Section 15 completely bans all appointments to
the Judiciary, including appointments to the Supreme Court, during the election period up to the end of the incumbent
President’s term.
In reality, this mistaken reading is an obiter dictum in Valenzuela, and hence, cannot be cited for its primary precedential
value. This legal situation still holds true as Valenzuela was not doctrinally reversed as its proposed reversal was
supported only by five (5) out of the 12 participating Members of the Court. In other words, this ruling on how Article VII,
Section 15 is to be interpreted in relation with Article VIII, Section 9, should continue to stand unless otherwise expressly
reversed by this Court.
But separately from the mistaken use of an obiter ruling as primary authority, I believe that I should sound the alarm bell
about the Valenzuela ruling in light of a recent vacancy in the position of Presiding Justice of the Sandiganbayan resulting
from Presiding Justice Norberto Geraldez’s death soon after we issued the decision in the present case. Reversing the
Valenzuela ruling now, in the absence of a properly filed case addressing an appointment at this time to the
Sandiganbayan or to any other vacancy in the lower courts, will be an irregular ruling of the first magnitude by this Court,
as it will effectively be a shortcut that lifts the election ban on appointments to the lower courts without the benefit of a
case whose facts and arguments would directly confront the continued validity of the Valenzuela ruling. This is especially
so after we have placed the Court on notice that a reversal of Valenzuela is uncalled for because its ruling is not the
litigated issue in this case.
In any case, let me repeat what I stressed in my Separate Opinion about Valenzuela which rests on the reasoning that the
evils Section 15 seeks to remedy – vote buying, midnight appointments and partisan reasons to influence the elections –
exist, thus justifying an election appointment ban. In particular, the "midnight appointment" justification, while fully
applicable to the more numerous vacancies at the lower echelons of the Judiciary (with an alleged current lower court
vacancy level of 537 or a 24.5% vacancy rate), should not apply to the Supreme Court which has only a total of 15
positions that are not even vacated at the same time. The most number of vacancies for any one year occurred only last
year (2009) when seven (7) positions were vacated by retirement, but this vacancy rate is not expected to be replicated at
any time within the next decade. Thus "midnight appointments" to the extent that they were understood in Aytona 36 will not
occur in the vacancies of this Court as nominations to its vacancies are all processed through the JBC under the public’s
close scrutiny. As already discussed above, the institutional integrity of the Court is hardly an issue. If at all, only
objections personal to the individual Members of the Court or against the individual applicants can be made, but these are
matters addressed in the first place by the JBC before nominees are submitted. There, too, are specific reasons, likewise
discussed above, explaining why the election ban should not apply to the Supreme Court. These exempting reasons, of
course, have yet to be shown to apply to the lower courts. Thus, on the whole, the reasons justifying the election ban in
Valenzuela still obtain in so far as the lower courts are concerned, and have yet to be proven otherwise in a properly filed
case. Until then, Valenzuela, except to the extent that it mentioned Section 4(1), should remain an authoritative ruling of
this Court.
CONCLUSION
In light of these considerations, a writ of prohibition cannot issue to prevent the JBC from performing its principal function,
under the Constitution, of recommending nominees for the position of Chief Justice. Thus, I vote to deny with finality the
Tolentino and Soriano motions for reconsideration.
The other motions for reconsideration in so far as they challenge the conclusion that the President can appoint the Chief
Justice even during the election period are likewise denied with finality for lack of merit, but are granted in so far as they
support the continued validity of the ruling of this Court in In Re: Valenzuela and Vallarta, A.M. No. 98-5-01-SC, November
9, 1998.
My opinion on the Mendoza petition stands.
ARTURO D. BRION
Associate Justice
Footnotes
1
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408. This A.M. involves the constitutional validity of the appointment of two (2) RTC Judges on March
30, 1998 – a date that falls within the supposed ban under Section 15, Article VII of the Constitution. We nullified the appointments.
2
G.R. No. 191002 and companion cases, promulgated on March 17, 2010.
3
Justices Diosdado M. Peralta, Mariano C. Del Castillo and Jose Catral Mendoza.
4
G.R. No. 191002, Petition for Certiorari and Mandamus.
5
G.R. No. 191149, Petition for Certiorari and Mandamus.
6
The JBC reiterates its position in its Comment (dated April 12, 2010) on the motions for reconsideration that it is still acting on the preparation of the list
of nominees and is set to interview the nominees.
7
See, for instance, the motion for reconsideration of intervenor Alfonso Tan, Jr.
8
The docketed petitions were seven; the petitions-in-intervention were ten.
9
A prohibition petition seeks to stop the proceedings of a tribunal, corporation, board, officer or person exercising judicial, quasi-judicial or ministerial
functions if any of its act is without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.
10
Separate Opinion, p. 16.
11
The JBC position states:
xxxx
Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4(1), Article VIII
of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof,
Section 15, Article VII of the Constitution concerning the ban on Presidential appointments "two (2) months immediately before the next
presidential elections and up to the end of his term" and Section 261(g), Article XXIII of the Omnibus Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its decision in these consolidated
Petitions and Administrative Matter. [Emphasis supplied.]
12
Mendoza Petition, pp. 5-6.
13
Separate Opinion, pp. 16-17.
14
Supra note 11.
15
Id. at 17.
16
Separate Opinion, pp. 19-22:
A first reality is that the JBC cannot, on its own due to lack of the proper authority, determine the appropriate course of action to take under the
Constitution. Its principal function is to recommend appointees to the Judiciary and it has no authority to interpret constitutional provisions,
even those affecting its principal function; the authority to undertake constitutional interpretation belongs to the courts alone.
A second reality is that the disputed constitutional provisions do not stand alone and cannot be read independently of one another; the
Constitution and its various provisions have to be read and interpreted as one seamless whole, giving sufficient emphasis to every aspect in
accordance with the hierarchy of our constitutional values. The disputed provisions should be read together and, as reflections of the will of the
people, should be given effect to the extent that they should be reconciled.
The third reality, closely related to the second, is that in resolving the coverage of the election ban vis-à-vis the appointment of the Chief Justice
and the Members of the Court, provisions of the Constitution other than the disputed provisions must be taken into account. In considering
when and how to act, the JBC has to consider that:
1. The President has a term of six years which begins at noon of June 30 following the election, which implies that the outgoing
President remains President up to that time. (Section 4, Article VII). The President assumes office at the beginning of his or her term,
with provision for the situations where the President fails to qualify or is unavailable at the beginning of his term (Section 7, Article
VII).
2. The Senators and the Congressmen begin their respective terms also at midday of June 30 (Sections 4 and 7, Article VI). The
Congress convenes on the 4th Monday of July for its regular session, but the President may call a special session at any time.
(Section 15, Article VI)
3. The Valenzuela case cited as authority for the position that the election ban provision applies to the whole Judiciary, only decided
the issue with respect to lower court judges, specifically, those covered by Section 9, Article VIII of the Constitution. Any reference to
the filling up of vacancies in the Supreme Court pursuant to Section 4(1), Article VIII constitutes obiter dictum as this issue was not
directly in issue and was not ruled upon.
These provisions and interpretation of the Valenzuela ruling – when read together with disputed provisions, related with one another, and
considered with the May 17, 2010 retirement of the current Chief Justice – bring into focus certain unavoidable realities, as follows:
1. If the election ban would apply fully to the Supreme Court, the incumbent President cannot appoint a Member of the Court
beginning March 10, 2010, all the way up to June 30, 2010.
2. The retirement of the incumbent Chief Justice – May 17, 2010 – falls within the period of the election ban. (In an extreme example
where the retirement of a Member of the Court falls on or very close to the day the election ban starts, the Office of the Solicitor
General calculates in its Comment that the whole 90 days given to the President to make appointment would be covered by the
election ban.)
3. Beginning May 17, 2010, the Chief Justice position would be vacant, giving rise to the question of whether an Acting Chief Justice
can act in his place. While this is essentially a Supreme Court concern, the Chief Justice is the ex officio Chair of the JBC; hence it
must be concerned and be properly guided.
4. The appointment of the new Chief Justice has to be made within 90 days from the time the vacancy occurs, which translates to a
deadline of August 15, 2010.
5. The deadline for the appointment is fixed (as it is not reckoned from the date of submission of the JBC list, as in the lower courts)
which means that the JBC ideally will have to make its list available at the start of the 90-day period so that its process will not eat up
the 90-day period granted the President.
6. After noon of June 30, 2010, the JBC representation from Congress would be vacant; the current representatives’ mandates to act
for their principals extend only to the end of their present terms; thus, the JBC shall be operating at that point at less than its full
membership.
7. Congress will not convene until the 4th Monday of July, 2010, but would still need to organize before the two Houses of Congress
can send their representatives to the JBC – a process may extend well into August, 2010.
8. By July 5, 2010, one regular member of the JBC would vacate his post. Filling up this vacancy requires a presidential appointment
and the concurrence of the Commission on Appointments.
9. Last but not the least, the prohibition in Section 15, Article VII is that "a President or Acting President shall not make
appointments." This prohibition is expressly addressed to the President and covers the act of appointment; the prohibition is not
against the JBC in the performance of its function of "recommending appointees to the Judiciary" – an act that is one step away from
the act of making appointments.
17
The Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel Ancestral Domain, G.R. Nos. 183591, 183791, 183752,
183893, 183951 and 183962, October 14, 2008.
18
By virtue of its power of administrative supervision, the Supreme Court oversees the judges’ and court personnel’s compliance with the laws, rules and
regulations. It may take the proper administrative action against them if they commit any violation. See Ampong v. CSC, G.R. No. 107910, August 26, 2008,
563 SCRA 293. The Constitution separately provides for the Supreme Court’s supervision over the JBC. See Article VIII, Section 8 of the CONSTITUTION.
19
Judicial Review is the power of the courts to test the validity of executive and legislative acts for their conformity with the Constitution, Garcia v.
Executive Secretary, G.R. No. 157584, April 2, 2009.
20
Control is the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter. It is distinguished from supervision in that the latter means overseeing, or the power or
authority of an officer to see that subordinate officers perform their duties, and if the latter fail or neglect to fulfill them, then the former may take such
action or steps as prescribed by law to make them perform these duties. Nachura, J., Outline Reviewer in Political Law, 2006 ed., p. 276.
21
G.R. No. 156052, February 13, 2008, 545 SCRA 92.
22
Supra notes 11 and 14.
23
Philippine Bar Association (PBA), Women Trial Lawyers Organization of the Philippines (WTLOP), Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter
Irving Corvera and Alfonso V. Tan, Jr.
24
See PBA’s Motion for Reconsideration.
25
See the Motions for Reconsideration for PBA, WTLOP, Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter Irving Corvera and Alfonso V. Tan, Jr.
26
CONSTITUTION, Article VII, Section 15:
Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or
endanger public safety.
27
CONSTITUTION, Article VIII, Section 4(1):
(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or, in its discretion, in divisions of
three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.
xxxx
28
See Petition on Intervention of WTLOP, as cited in the decision in the above-captioned cases; see also: PBA’s motion for reconsideration.
29
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, citing Civil Liberties Union v. Executive Secretary, 194 SCRA
317 (1994); Peralta v. Commission on Elections, G.R. No. 47771, March 11, 1978, 82 SCRA 30 (1978); Ang-Angco v. Castillo, G.R. No. 17169, November 30,
1963, 9 SCRA 619 (1963).
30
Macalintal v. Commission on Elections, G.R. No. 157013, July 10, 2003, 310 SCRA 614, citing Chiongbian v. De Leon, 82 Phil 771 (1949).
31
Article VI for the Legislature, Article VII for the Executive, and Article VIII for the Judiciary.
32
See Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49; where the court resolved the clash between the power of the President to extend
ad interim appointments and the power of the Commission on Appointments to confirm presidential appointments.
33
Ibid.
34
Supra note 13.
35
Separate Opinion, p. 32.
36
Aytona v. Castillo, G.R. No. 19315, January 19, 1962, 4 SCRA 1.
SUPREME COURT
Manila
EN BANC
G.R. No. L-7557 December 7, 1912
THE UNITED STATES, plaintiff-appellant,

vs.
JOSE S. SERAPIO, defendant-appellee.
Attorney-General Villamor, for appellant.

W. A. Kincaid and Thomas L. Hartigan, for appellee.
PER CURIAM:
This defendant was charged with the crime of libel, alleged to have been committed as follows:1awphil.net
I. On or about the month of December, 1907, in the municipality of Santa Maria, Province of Bulacan, P.I., the said
accused, Jose S. Serapio, did willfully and criminally, with the intention of attacking, reviling, and exposing to
public hatred and scorn the good name, virtue, and reputation of Bonifacio Morales, write, publish, and send by
mail, addressed to the Executive Secretary, an anonymous communication, the pertinent portion whereof is as
follows:
"11. Bonifacio Morales is the murdered of 12 peaceful and honest men, who are: Mariano Ramirez,
municipal president of Bocaue; teacher of the primary school of Marilao, Emigdio Perez, Candido del
Rosario, Juan de Vera, Manuel Valderrama, a boy 13 years old of the barrio of Alangalang, one Budio,
musician, Mariano Mendoza, all of Santa Maria, an old man of the barrio of Sapang-palay of San Jose
and two brothers, sons of Francisco Pascual of Norzagaray. He has committed various assaults and
robberies, which are: The robbery of Capatin Ciano Caluloua of Meycauayan, the robbery of Simeona of
Angat, whereby a girl 12 or 13 years old was killed, the robbery of P420 from Juana Reyes of Bocaue, all
in the year 1899."
II. On the same date or time, to wit, December, 1907, in the municipality of Santa Maria, Province of Bulacan, P.I.,
the said accused, Jose S. Serapio, did willfully and criminally, with the intention of attacking, reviling, and
exposing to public hatred and scorn the good name, virtue, and reputation of Bonifacio Morales, write, publish,
and send by mail, addressed to the Executive Secretary, an anonymous communication, the pertinent portion
whereof is as follows:
"12. Bonifacio Morales is known in the Secret Service Department of Manila as a criminal, whose crimes
the detective Manuel Arbona discovered in the year 1903."
III. At the same time, to wit, December, 1907, in the same place and province, the said accused, Jose S. Serapio,
did willfully and criminally, with the intention of attacking, reviling, and exposing to public hatred and scorn the
good name, virtue, and reputation of Bonifacio Morales, write, publish, and send by mail, addressed to the
Executive Secretary, an anonymous communication, the pertinent portion whereof is as follows:
"15. Bonifacio Morales is an inveterate gambler and to get money he uses diabolical methods, as in the
case of the General Santa Ana in 1903, who surrendered voluntarily in order to get within the pale of the
law, but Morales tried to demonstrate to the Government that he was caught by him in order to secure the
reward offerred by the Government.
"All the foregoing is little, if the provincial government would get interested in discovering many crimes
committed in the province by Morales and his people."
IV. All the facts above specified were written, published, and addressed to the Executive Secretary of the Islands
by the said accused maliciously, willfully, and at the time the slandered Bonifacio Morales was discharging the
duties of the office of justice of the peace of the municipality of Santa Maria, Province of Bulacan, P.I., and all the
acts above specified were committed in violation of the law.
Upon said complaint the defendant was duly arraigned. Upon arraignment the defendant, by his attorneys, presented the
following demurrer:
I. The facts alleged in the complaint do not constitute a crime.lawphi1.net
II. It appears from the allegation in the complaint that if there were a crime it has prescribed.
The fiscal of the Province of Bulacan and the attorney for the defendant, each presented written and oral arguments
against and in support of said demurrer. The attorney for the defendant (p. 82 of Expediente) seems to have waived his
contention that the facts stated in the complaint were insufficient a cause of action.
After hearing the arguments of the respective parties, the Honorable Alberto Barretto, judge, in a very interesting opinion,
decided that the first ground of said demurrer was not well founded, but sustained the second, and ordered the
prosecuting attorney of the province to present a new complaint.
With reference to the second ground of the demurrer, Judge Barretto in his decision said:itc@alf
"With reference to the second ground for exception, counsel for the defense maintains that the crime has
prescribed under the provisions of the laws in force in the Islands and supports such conclusion by asserting that
in the absence of a definite provision in Act No. 277 of the Philippine Commission, which fixes the time during
which the penal action arising from the crime of libel may be exercised, the time which article 131 of the Penal
Code fixes for the prescription of the crimes of calumny and insults is strictly applicable.
Against this contention of the defense, the Attorney-General and the private prosecutor maintain that the
prescription of a general nature contained in said article 131 is not applicable, for two reasons:
First, because the crime of libel is entirely distinct and independent from calumny and insults; and
Second, because that provision of the code in the matter of prescription of crimes is not applicable to the crimes
created and punished by special laws promulgated by the Philippine Commission or the Philippine Legislature.
After carefully considering the case, the court finds that while the crime of libel differs from that of calumny, defined and
penalized in article 452, it is not so with respect to the crimes of insults provided for and penalized in articles 456 et seq.
of the Penal Code. Under said articles and the first paragraph of article 277, the court does not understand to exist the
same essential difference between the crime of insults in writing and that of libel. In both the object of the perpetrator of
the crime is to attack the honesty, virtue, or reputation of a person, exposing him to public hatred, scorn or ridicule,
characteristic elements that are likes is found in the crime of insults in writing, defined and penalized in article 456 of the
Penal Code, in connection with 458 thereof. It is certain that Act No. 277 has not in any way fixed the prescription for the
penal action in the crimes of libel. There is no provision in said Act that fixes the time within which the action arising from a
libelous imputation may prescribe, but it is not less certain that by applying the rule that a criminal act is not prescriptible
unless the law expressly fixes such prescription, the crime of libel and others could be prosecuted at anytime, which
would naturally make the provisions of the Act absurd, for a case might arise where a penal action might be exercised
even after the person concerned in the crime or responsible therefor had died.
In support of his contention, the Attorney-General cites the precedent established by the court in the cases of U. S. vs.
Lao Lock Hing (14 Phil. Rep., 86) and U. S. vs. Calaguas(14 Phil. Rep., 739). What the Supreme court has established in
these cases is that the rules of the Penal Code cannot be applied in the penalty to be imposed in the crimes punished by
a special Act, but only the characteristics and special American principles of discretion in the punishment. In said cases
the Supreme Court has laid down no principle applicable to the case at bar, that is, to prescription of the crime.
The court believes that the provisions of the Penal Code with reference to the extinction of penal responsibility are
applicable to the case, like those of a general character included in Book I of the Penal Code, which refer to the
essential requisites common to all crimes. No special law fixes these or defines crime, but starting from the
definition previously laid down by the common penal legislation it defines and establishes the requisites peculiar
to the special crime it is sought to correct; but still, the court thinks that no one can deny that before classifying an
act as a special crime it becomes necessary to see whether or not the essential requisites common to every crime
are present. If such principles are of undoubted application, even without express provision of the special law, the
court thinks that those of the general legislation fixing the period within which the penal responsibility is
extinguished are likewise, for both are essential to make the law consistent and reasonable. Under these
considerations, the court holds that the ground for exception indicated should be sustained, and he therefore
sustains the second ground of demurrer or exception, and understanding that said objection can be corrected,
orders the presentation of a new complaint.
From that decision an appeal was taken to this court by Mr. Imperial, acting for the Government, who made the following
assignments of error:
The trial court incurred a legal error in sustaining the second ground of demurrer, and in declaring that the crime
alleged in the complaint has prescribed in accordance with the third paragraph of article 131 of the Penal Code of
the Philippines.
Under this assignment of error the only question presented by the appellant is, whether the prescription fixed by article
131 of the Penal Code for the offense of calumny and insults (arts. 452-457) is applicable to the crime of libel as defined
and punished under Act (No. 277) of the Philippine Commission.
Calumy, as defined by the Penal Code, is: "The false imputation of a crime upon which a prosecution might be instituted
by the Government on its own motion." (art. 452.) This false imputation of crime may be expressed publicly in writing (art.
453) or orally (art. 454). The punishment provided, when the calumny is expressed publicly in writing, "is prision
correccional minimum and medium degrees" (imprisonment from six months and one day to four years and two months)
("and a fine of not more than 12,500 pesetas" (P2,500) (art. 453). If the calumny is expressed orally simply, the
punishment is "arresto mayor in its minimum degree (imprisonment from one month and one day to two months) and a
fine of not less than 625 and not more than 6,250 pesetas" (P125 to P1,250) (art. 454).
It will be noted by reading said articles 453 and 454, that the punishment for calumny depends not only upon whether it
was expressed publicly, in writing or orally, but also whether the crime imputed was "a grave felony," or "a less grave
felony." When a felony is grave or less grave is defined by the Penal Code. (Art. 6.).
In the case of the crime of "insults"," it may be either a statement or an act. In case it is a statement, it may also be either
in writing or orally. The penalty fixed for insults also depends on whether the offense is "grave," "less grave," or "trifling."
The punishment for the offense of "insults," "grave" or "less grave" is banishment, in its minimum and maximum degrees
(for a period of two years four months and one day, to six years) " and a fine of not less than 325 and not more than
6,250 pesetas" (P65 to P1,250). (Art. 458.) If the insults is "trifling" the punishment is "arresto mayor in its minimum
degree" (imprisonment for a period of one month and one day to two months) "and a fine of not less than 325 and not
more than 3,250 pesetas" (P65 to P650).
The crime of libel is defined by the law (Act No. 277) of the Philippine Commission as "a malicious defamation, expressed
either in writing, printing, or by signs or pictures, or the like, or public theatrical exhibitions, tending to blacken the memory
of one who is alive, and thereby expose him to public hatred, contempt, or ridicule."
Under this law (Act No. 277) it will be noted that the crime of libel can never be committed by oral expressions; it must
always be expressed either in writing, printing or by signs or pictures or the like, or public theatrical exhibitions. The
punishment provided under said Act (No. 277) is always within the sound discretion of the court. The court, in fixing the
penalty, is not limited by any of the rules of the Penal Code in relation to the grades of punishment therein prescribed.
It is contended by the appellee, that inasmuch as the Act(No. 277) of the Philippine Commission covers a part of the
offenses of calumny and insults, that it is not a special law, as that phrase is used in article 7 of the Penal Code, and that
the provisions of article 131 (of the Penal Code) relating to calumny and insults apply to the crime of libel as defined by
said Act (No. 277). This contention makes it necessary to define "special laws," as that phrase is used in article 7 of the
Penal Code. Does this phrase "leyes especiales," as used in the Penal Code (article 7) have the meaning applied to the
phrase "special laws," as the same is generally used? Both under the common law and the civil law, one of the general
classifications of laws is that of (a) general and (b) special. The first, or general law, is defined as a law which applies to
all of the people of the state or to all of a particular class of persons in the state, with equal force and obligation. A special
law, as the phrase is generally used, is a law which applies to particular individuals in the state or to a particular section or
portion of the state only. The phrase "general law" is sometimes substituted by the phrase "public law" in the contradiction
to special or private law. Mr. Black, in his very valuable law dictionary, defines a general law, as contra distinguished from
one that is special or local, as a law that embraces a class of subjects or places, and does not omit any subject or place
naturally belonging to such class.(Van Riper, et al. vs. Parsons, 40 N. J. Law, 1.) It is confidently contended that the
phrase"leyes especiales," as used in the Penal Code (article 7) is not used with this general signification: In fact, said
phrase may refer not to a special law as above defined, but to a general law. A careful reading of said article 7 clearly
indicates that the phrase "leyes especiales" was not used to signify "special laws" in the general signification of that
phrase. The article, it will be noted, simply says, in effect, that when a crime is made punishable under some other law
than the Penal Code, it (the crime) is not subject to the provisions of said code. We are confirmed in this opinion by an
examination of the Spanish jurisprudence upon the same subject. Viada (1 Viada, 84), in his valuable commentaries on
the provisions of the Penal Code, in discussing article 7, practically limits himself to an examination of "leyes
especiales" to which the provisions of the Penal Code are not applicable. In answering the question: "Cuales son las leyes
especiales que penan delitos," he simply enumerates such laws as follows, to wit:
1. Ordennaza Militar;
2. Ley de Organizacion y Attribuciones de los Tribunales de Guerra:
3. Codigo Penal del Ejercito;
4. Ley de Enjuiciamiento Militar;
5. Delitos de Contrabando y Defraudacion;
6. Delitos Electorales;
7. Ordenanzas de Montes;
8. Ley Municipal;
9. Ley Reclutamiento y reemplazo del Ejercito;
10. Ley sobre policia;
11. Ley sobre conservacion de los Ferrocarriles;
12. Ley de Caza;
13. Ley sobre Usurpacion;
14. Ley sobre la Falsificacion de Patentes de Invencion;
15. Ley sobre Proteccion a los Menores;
and others which might be mentioned.

An examination of these laws denominated "leyes especiales," as that phrase is used in the Penal Code, shows that, in
fact, most of them are general laws in the sense that they apply to all the persons in the state or to all of a particular class.
The rule which we now adopt, to wit: That, when a crime is made punishable by a law other than by the provisions of the
Penal Code, the provisions of said code do not apply, as has been heretofore announced by this court. (U.S. vs. Lao Lock
Hing, 14 Phil. Rep., 86; U. S. vs. Calaguas, 14 Phil. Rep., 739). In the case of U. S. vs. Lao Lock Hing, supra, the
defendant was charged with a violation of the Opium Law. (Sec. 31, Act No. 1761.) In deciding the case, the court,
speaking through Mr. Justice Torres, said:
The crime under consideration consists of the violation of a special law as referred to in article 7 of the Penal
Code, and consequently the provisions of said code and the classification of the crimes comprised therein are not
applicable in the present case. The crime must be punished under the provisions of the Act (No. 1761) which the
sovereign power, by virtue of its authority's a fit to enact for the good of the country and its inhabitants. Wherefore,
inasmuch as it is an act which the lawmaker has declared to be invested with the attributes of a crime, the
overruling of the demurrer and the prosecution of the case are in accordance with the law.
In the case of U. S. vs. Calaguas, supra, the defendant was charged with having, by means of a wrench, removed several
screwd and fish plates from the line of the railroad, in the municipality of Santa Rosa, Province of Nueva Ecija. It was
alleged that he thereby damaged the line and that a derailment of the train would have occurred, had it not been
discovered in time. The court decided that the "Ley de Ferrocarriles" was a ley especial, under said article 7, and that the
general provisions of the Penal Code did not apply. This court, speaking through its chief justice, Mr. Arellano, said:
Crimes which are punished by special laws are not subject to the provisions of this article (article 7 of the Penal
Code). The act of wrenching off screws and fishplates from the rails of a railroad line is punished by a special law,
that which governs the policing and preservation of railroads, amended by the law of November 23, 1877, made
applicable to the Philippine by royal decree of August 6, 1875. In reality this provision relates to the law of
November 14, 1855, one almost identical to that of 1877, article 16 of which reads: "He who shall voluntarily
destroy or damage a railway line . . . shall be punished with the penalty of prision correctional."
In the more recent case of U. S. vs. Fuster (10 Off. Gaz., 1048) in a very brief opinion, when the question was squarely
presented whether the provisions of the Penal Code relating to the prescription or limitation of an action for calumny and
insults were applicable, this court refused to apply the rule of prescription or limitation of the Penal Code to the crime of
libel as defined by the law of the United States Commission. (Act No. 277.).
This court has refused in many cases to apply some of the general provisions of the Penal Code to the laws of the United
States Commission, or to special decrees of the Kingdom of Spain applicable to the Philippine Islands, thereby holding, in
effect, that such laws, when they provided a penalty for their violation, were "leyes especiales,"as that phrase is used in
the Penal Code.
See U. S. vs. Hutchinson (5 Phil. Rep., 343, November 21, 1905), where the court refused to apply the provisions as to
subsidiary imprisonment for the nonpayment of a fine under Acts Nos. 610 and 652 of the United States Commission;.
U. S. vs. Glefonea (5 Phil. Rep., 570, January 24, 1906),where the court refused to apply the rule with reference to
subsidiary imprisonment to article 8 of Act No. 619 of the United States Commission;
U. S. vs. Lineses (5 Phil. Rep., 631, February 17, 1906),where the court refused to apply the provisions as to subsidiary
imprisonment of the Penal Code, to Act No. 292 of the United States Commission;
U. S. vs. Carvajal, et al. (4 Off. Gaz., 705, April 16,1906),where the court refused again to apply the rules as to subsidiary
imprisonment of the Penal Code to section 8 of Act No. 292 of the United States Commission; in this case, the court,
speaking through Mr. Justice Torres, said:
The provisions of the Penal Code which authorize the imposition of subsidiary imprisonment for the nonpayment
of a fine imposed are not applicable to those guilty of crimes punished under said Act (No. 292) and other Acts of
the Commission, the Penal Code being based upon an entirely different system of legislation.
U. S. vs. Ang Kan Ko (6 Phil Rep., 376, August 22, 1906),where the court again refused to allow the application of the
rules of the Penal code to the laws of the United States Commission (Acts Nos. 355, 653 and 864);
U. S. vs. Cortes, et al. (7 Phil. Rep., 149, December 7, 1906).In this case the court again refused to allow the provisions of
the Penal Code to be applied to the laws of the United States Commission, or to the Law of Brigandage(Act No. 518);
U. S. vs. Lopez Basa (8 Phil. Rep., 89, March 19, 1907).In this case the court refused to apply article 3 of the Penal Code
relating to attempts to commit crimes, to the crimes defined and punished by the laws of the United States Commission
(Act No. 82);
U. S. vs. Macasaet (11 Phil. Rep., 447, October 15, 1908). In this case the court refused to apply the rules relating to
subsidiary imprisonment of the Penal Code to sections 66 and 68 of Act No. 1189 of the United States Commission;
U. S. vs. Servillas (12 Phil. Rep., 12, November 11, 1908),where the court again refused to allow the provisions of the
Penal Code to be applied to Act No. 1461 of the United States Commission;
Ocampo vs. Jenkins (14 Phil. Rep., 681, 683, December 24, 1909), where the court said it had, in numerous cases,
decided that the provisions of the Penal Code were not applicable to crimes created by the laws of the United States
Commission;
Cruz vs. The Director of Prisons (17 Phil. Rep., 269, November 3, 1910), where this court again said, speaking through
Mr. Justice Trent, "prior to the enactment of Act No. 1732, the Courts of First Instance had no authority to impose
subsidiary imprisonment for a failure to pay fines in cases of conviction for violation of Acts of the United States
Commission;
U. S. Kennedy (18 Phil. Rep., 122, December 29, 1910),where the court again refused to apply the provisions of the
Penal Code to the Acts of the United States Commission.
This court has uniformly, through a long line of decisions, as above indicated, refused to apply some of the provisions of
the Penal Code to leyes especiales, as that phrase is used in article 7; or in other words, the court has refused to apply
some provisions of the Penal Code to any general law of the Philippine Commission, which, within itself, defined the
punishment of a crime.
The Honorable Alberto Barretto, judge, in his decision in the court below, very correctly says, among other things:
But it is no less certain that by applying the rule that a criminal act is not prescriptible unless the law expressly fixes such
description." In our opinion this is the correct rule. (Dover vs. Maestaer, 5 Esp., 92 English Common Law Reports;
Hyde vs. Partridge, 3 salk, 223, 228 (E. C.L.); Reg. vs. Hull, 2 Fast and F., 16 (E. C. L.).) The doctrine of prescription or
the limitation of time within which an action may be brought, is of purely statutory origin. Both under the common and the
civil law a right of action never died by mere lapse of time. (Mackeldrey's Roman Law, sec. 213; Gaius, 4 sec. 128.) The
court, in the absence of express law, has no authority to fix a period of prescription or limitation. (Missouri vs. Illinois, 200
U. S., 496; Reist vs. Heibrennan, 11 Serg and R. (Pa.), 131; Battle vs. Shiversm, 39 Ga., 405; Buchannan vs. Rowland, 5
N.J. Law,. 721; Gray vs. Hartford Ins. Co., 6 Fed. Cases, No. 3375; 1 Blatchford (U. S.), 280; Williams vs. Jones, 13 East,
439; The People vs. Gilbert, 18 Johnson (N. Y.), 227; Bell vs. Morrison, 1 Peters (U. S.), 351.).
Under the common law the word "prescription" is generally used with reference to the acquisition of a right by the lapse of
time. It is said, for example, under the common law, that one may acquire a right to real property or to an easement by
prescription.
The word "limitation," as applied to actions under the common law, has reference to the time within which an action must
be brought after the right of action had accrued. Under the Civil Code the word "prescription" is used to cover both of
these ideas. (See Civil Code, arts. 1930-1975;4 Escriche's Diccionario de Legislacion y Jurisprudencia, 643-649.).
Under the Penal Code the word "prescription" is used with reference to the time within which the action must be brought.
(See Penal Code, art. 130, paragraphs 6 and 7.).
By prescription or limitation of actions, the right of action is not extinguished, neither under the common nor under the civil
law. Both the Civil and Penal Codes provide when the action is extinguished and when it is prescribed simply. These
statutes (of prescription or limitation)did not destroy the right. They simply provided in effect, that, after the lapse of the
time prescribed by law, the defendant might object, if he desired, to being sued. If the defendant failed, in some proper
way, to object, or, in other words, interpose the statutory defense, the action could be maintained. The statute provided a
special defenses imply. If the defense of prescription or limitation is not expressly raised, it is waived and is not available.
It cannot be raised by demurrer. It must be expressly pleaded.(Aldeguer et al. vs. Hoskyn, 2 Phil. Rep., 500; Domingo vs.
Osorio, 7 Phil. Rep., 405; Maxilom vs. Tabotabo, 9 Phil. Rep., 390; Harty vs. Luna, 13 Phil. Rep., 31; Sunico vs. Ramirez,
14 Phil. Rep., 500.)
Our conclusions, then, following the rule heretofore adopted by this court, are:
First. That by reason of article 7 of the Penal Code, some of the general provisions of said code do not apply to the penal
laws of the United States Commission, unless, by express provision of law, they are made applicable.
Second. That there is no general or special provision of law making any of the provisions of the Penal Code applicable to
the Libel of Law of the United States Commission(Act No. 277), except the provision as to subsidiary imprisonment when
a fine is imposed. (Act No. 1732.).
Third. That the period of prescription fixed by article 131 of the Penal Code for calumny and insults, does not apply to the
crime of libel as defined and punished under Act No. 277 of the United States Commission.
Fourth. That unless a period of prescription or limitation is fixed by law for a particular offense or crime, the action for such
offense or a crime is not barred by lapse of time.
Fifth. That the law defining and punishing the crime of libel (Act No. 277) has not fixed a period of prescription or limitation
within which an action for such crime shall be instituted.
For all of the foregoing reasons, the judgment of the lower court, sustaining the second ground of demurrer, is hereby
reversed, and it is hereby ordered that the cause be remanded to the lower court from which it came, with direction that
the defendant Jose S. Serapio be ordered to appear and plead to the complaint presented in this cause.
It is so ordered, without any finding as to costs.
Arellano, C.J., Torres, Mapa and Johnson, JJ.
Separate Opinions
TRENT, J., dissenting:
I dissent from both the reasoning and conclusion.

SUPREME COURT
Manila
EN BANC
G.R. No. L-9144 March 27, 1915
THE UNITED STATES, plaintiff-appellee,

vs.
VENANCIO DE GUZMAN (alias CACALASAN), defendant-appellant.
Bernabe de Guzman for appellant.

Office of the Solicitor-General Harvey for appellee.
CARSON, J.:
Venancio de Guzman, the defendant and appellant in this case, was convicted in the court below of the crime ofasesinato (murder)
and sentenced to life imprisonment.
The evidence of record leaves no room for doubt that, on the day and at place mentioned in the information, De Guzman, who was
walking through a field with Pedro and Serapio Macarling and Rufino Garin, deceased, struck the latter on the head, knocked him
down and held him on the ground while Pedro Macarling stabbed him to death. There is and there can be no question as to his guilt
of the crime of which he was convicted in the court below, the only question raised on this appeal being his right to exemption from
prosecution for the crime thus committed, on the ground that a former information, charging the same offense, had been dismissed
as to him in order that he might testify as a witness for the prosecution.
It appears that some time prior to the trial of the case at bar an information was duly filed charging De Guzman, jointly with the two
Macarlings, with the murder of Guzman entered into an agreement with the fiscal under the terms of which he promised to appear
and testify as a witness for the Government at the trial of his coaccused, and to tell the truth as to all that occurred, provided the
information was dismissed as to him and he himself was not brought to trial. With the consent of the court, and in pursuance of this
agreement, he was not arraigned nor brought to trial, and the information was dismissed as to him. One of his coaccused pleaded
guilty and the other not guilty, and thereafter the case came on for trial. after several witnesses had been called, De Guzman was
placed on the witness stand, and denied all knowledge of the murder. He denied that he had ever said anything implicating his
coaccused, and swore that a statement made by him before a justice of the peace was false, and that it had been made through fear
of certain police officer. Question by the court developed that he had made still another statement to one Natnat, implication his
coaccused, but he swore that statement had also been made through fear; and repudiating all former statements made by him, he
declared that they were false, and had been procured by the prosecuting officials of the Government by the use of improper and
illegal methods.
The Solicitor-General, relying on the provisions of sections 34, 35 and 365 of General orders No. 58, recommends the discharge of
the appellant, and that he be set at liberty forthwith, adding in the concluding paragraph of his brief that, although such action
would result "in a palpable misdismissal and expressly bars a future prosecution" for the crime charged in the information which was
dismissed as to him. We do not think so, and hold that, it conclusively appearing that appellant failed to carry out his agreement with
the fiscal, and had knowingly and falsely testified at the trial of his coaccused, and that he fraudulently secured the dismissal of the
former information, the state was wholly within its rights in bringing him to trial, and convicting and sentencing him for the crime
with which he was charged in the former information.
Section 34, 35, and 36 of General orders No. 58, upon which counsel for defense and the Solicitor-General rely, are as follows:
SEC. 34. When two or more persons shall be included in the same charge, the court, at any time before the defendants have
entered upon their defense or upon the application of the counsel of the Government, may direct any defendant to be
discharged, that he may be a witness for the United States.
SEC. 35. When tow or more persons shall be included in the same charge, and the court shall be of opinion in respect to a
particular defendant that there is not sufficient evidence to put him on his defense, it must order him to be discharged
before the evidence is closed, that he may be a witness for his codefendant.
SEC. 36. The order indicated in sections thirty-four and thirty-five shall amount to an acquittal of the defendant discharged,
and shall be a bar to future prosecution for the same offense.
These sections constitute a part of the notably short, compact and concise military order issued April 23, 1900, which prescribed, in
very summary terms, the procedure to be followed in criminal cases in the various courts of the Islands authorized to administer
justice under American Sovereignty, and which continues in force, with a few amendments, to the present day. We have frequently
held that, for the proper construction and application of the terms and provisions of legislative enactment's which have been
borrowed from or of times essential to review the legislative history of such enactments and to find an authoritative guide for their
interpretation and application in the decision of American and English courts of last resort construing and applying similar legislation
in those countries. (Kepner vs. U.S., 195 U.S., 100; 11 Phil. Rep., 669; Serra vs. Mortiga, 204 U.S., 470; 11 Phil. Rep., 762;
Alzua vs. Johnson, 21 Phil. Rep., 308.) Indeed it is a general rule of statutory construction that courts may take judicial notice of the
original and history of the statutes which they are called upon to construe and administer, and of the facts which affect their
derivation, validity and operation (2 Lewis Sutherland on Statutory Construction, sec. 309). This author in section 456, citing
numerous cases in support of the doctrine, says also that:
Where the meaning of a statute or any statutory provision is not plain, a court is warranted in availing itself of all legitimate
aids to ascertain the true intention; and among them are some extraneous facts. The object sought to be accomplished
exercises a potent influence in determining the meaning of not only the principal but also the minor provisions of a statute.
To ascertain it fully the court will be greatly assisted by knowing, and it is permitted to consider, the mischief intended to be
removed or suppressed, or the necessity of any kind which induced the enactment. If the statute has been in force for a long
period it may be useful to know what was the contemporary construction; its practical construction; the sense of the legal
profession in regard to it; the course and usages of business which it will affect.
The dismissal of complaints or informations as to one of several persons charged with the commission of an offense in order that he
may used as witness against his coaccused, and the making of agreements whereby quickly persons are sometimes assured of
exemption from criminal prosecution on condition that they testify against their coparticipants in the commission of a crime, would
appear to have been authorized under the provisions of General Orders No. 58, as a necessary incident to the supplanting of the old
system of criminal procedure with a system borrowed, in large part, from English and American precedents. This, doubtless, as a
result of the emphasis placed by the new system on the presumption of innocence in favor of an accused persons, on the
requirement that the Government must establish its case beyond a reasonable doubt before the accused is called upon to defend
himself, on the prohibitions against compelling an accused persons to be a witness against himself, and against the drawing of
inferences of guilt from the silence of the accused. Experience, under English and American procedural methods, has shown that
without the aid of informers testifying against their coparticipants in crime, many guilty parties would escape, where the facts which
would sustain a conviction are known only to the guilty persons themselves. Indeed, we do not doubt that the making of such
agreements as the one under consideration would be held to have authorized under the new system of criminal procedure upon the
authority of American and English precedents, even had it not been expressly recognized and provided for in General orders No. 58.
In the Whiskey Cases (9 Otto, 594; 25 L. ed., 399), we find an interesting history of the original and growth of the practice under
consideration. It there appears that aciently, under the common law of England, the criminal could not interpose such an agreement
with the state as a plea in bar to the prosecution for the offense with which he was charged, but that the faithful performance of the
agreement entitled him to an equitable rights to a recommendation to executive clemency. In more recent times, however, the
practice has been quite generally recognized by statutory enactment in many jurisdiction, and under the statutes the faithful
performance of the agreement is held to be a complete bar to a subsequent prosecution of the criminal. A search of the year books
shows but few cases in which a defendant, after making an agreement with the prosecution to testify what he knows about the
commission of the crime, failed go comply with his promise. In the discussion of the general subject, however, there is much dicta to
the effect that the criminal must act in good faith and testify fully and fairly as to what he knows concerning the crime, in order to
claim immunity. (The Whiskey Cases, supra; Rex vs. Rudd, Crowp., 331, as quoted in 41 N.J.L., 17; 4 Blackstone's Com., 330.)
The question arose in Texas under a statute providing that: "The attorney representing the State may at any time under the rules
provided in article 37 dismiss a prosecution as to one or more defendants indicated with others, and the person so discharged may
be introduced as a witness by either party." (Texas Code crim. Proc., art 709.)
Article 37 provides that when a district attorney desires to dismiss a case he shall file a written statement, setting not occur without
the permission of the presiding judge, who shall be satisfied that the reasons so stated are good and sufficient to allow such
dismissal. These statutory provisions, as will be seen, are not widely dissimilar from our own, though we have no provision requiring
a written statement of the reasons for dismissal to accompany motions of this nature, a feature nevertheless which might well be
adopted by the trial courts without the necessity for statutory enactment. In Ex parte Greenhaw (41 Tex. Crim. R., 278), the court
touched upon the question of the obligation of the accused to keep faith with the State under such an agreement and said: "I can
find no case in which the question has been directly presented as to the terms of this character of contract; I think, however, it may
be fairly deduced from the authorities that the state or Sovereign can contract with the accomplice upon the following terms only: In
consideration that he shall testify fully and fairly as to all he knows in regard to the guilt of his associates in the particular case in
which the contract is made, that he will receive immunity from punishment as to such case. . . . Again, it is agreed that there must be
a compliance with the terms of the contract on the part of the accomplice before he can claim immunity. . . . so it follows, if the
accomplice testifies corruptly or falsely he cannot claim immunity."
In the later case of Goodwin vs. State (158 S. W., 274), the supreme court of Texas had the question of good faith on the part of the
informer directly presented to it. The defendant had been jointly indicted with one Butler for adultery. She agreed with the
prosecuting officer that if he would dismiss the case against her she would testify fully on the trial of her codefendant. The case was
thereupon dismissed as to her, but when her codefendant was tried she refused to testify against him fully. She contended that the
State was bound by its agreement, and that she could not thereafter be prosecuted. The supreme court, in sustaining the court's
refusal to consider her discharge as a plea in abatement, said: "If she had carried out her agreement with the State and testified fully
as she agreed on the trial of Butler then the States would have been bound by said agreement, and could not thereafter have
prosecuted her. But certainly the State was not found by its agreement unless she carried out her agreement with it. As shown above
she refused to do so."
The Texas statute is silent, as is our own, as to the consequence of bad faith on the part of the accused, and yet, as we have seen, the
Texas court held that a discharge of this kind, secured in bad faith, did not exempt the informer from prosecution unless he keeps
faith with the Government.
The more common form of the statutory declaration of this practice appears to be at permit any person accused of crime to testify
concerning it at the request of the prosecuting officer, with the understanding that when a person has so testified he shall done in
connection with such crime. This is the method adopted in various immunity clauses in Acts of Congress (see Act of Feb. 25, 1903, 32
Star., 854, 903, 904, c. 775), with a proviso that persons committing perjury, when so called upon to testify, may be punished
therefor. (For a discussion of his history and an enumeration of these laws, see U.S. vs. Swift, 186 Fed., 1002.)
The constitution of Oklahoma, however, contains the following provision which, like our own statute, has no proviso authorizing a
prosecution: "Any person having acknowledge or possession of facts that tend to establish the guilt of any other person or
corporation charged with an offense against the laws of the State shall not be excused from giving testimony or producing evidence,
when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the State; but no person shall
be prosecuted or subjected to any penalty or forfeiture for on account of any transaction, matter, or thing concerning which he may
so testify or produce evidence."
In discussing the effect of the failure of a defendant to keep faith with the Government when called upon to testify against his
codefendants under this constitutional provision, the supreme court of that State recently said: "In this respect our immunity clause
differs from the statute of Wisconsin, which reserves the right of prosecution for perjury committed in the giving of such testimony.
Touching this reservation the supreme court of Wisconsin, in the case of State vs. Murphy (128 Wis., 201), in discussing the question
as to whether or not under this statute a witness could only secure immunity when he had testified to the truth, said: 'The statute
itself, however, refutes any such meaning, for it expressly reserves the right to prosecute for perjury "in giving such testimony."'
The same reservation is contained in the Acts of Congress granting immunity. See United States Comp. St. 1901, p. 3173 (Act
Feb. 11, 1893, c. 83 27 Stat., 443). If Congress had thought that a person who testified falsely in answer to question of an
incriminating character would be subject to prosecution for perjury, why the necessity for this reservation? We have no such
reservation in our constitutional provision; and, as before said, if we should follow the precedents, when the witness does
not speak the truth, the State would be left without redress, although the witness had violated the purpose and spirit of the
constitution. We cannot believe that it was the purpose of the intelligent and just-loving of Oklahoma, when they voted for
the adoption of the constitution, to grant immunity to any man, based upon a lie, or, in other words, that they intended that
the commission of perjury should atone for an offense already committed. It is a familiar rule of common law, common
sense, and common justice that a legal right cannot be based upon fraud. We therefore hold that the witness who claims
immunity on account of self-incriminatory testimony which he had been compelled to give must act in good faith with the
State, and must make truthful replies to the question which are propounded to him, and which he had been compelled to
answer, and that any material concealment or suppression of the truth on his part will deprive him of the immunity
provided by the constitution; and the witness must testify to something which, if true, would tend to criminate him. This
immunity is only granted to those who earn it by testifying in good faith. In our judgment any other construction would be
an insult to and a libel upon the intelligence of the people of Oklahoma, an outrage on law, and a prostitution of justice.
(Scribner vs. State, 132 Pac., 933, 940.)
From a review of the history and development of the practice under consideration, and reasoning along the line of the above cited,
we are all agreed that the failure of the accused in the case at bar, faithfully and honestly to carry out his undertaking to appear as a
witness and to tell the truth at the trial of his coaccused, deprived him of the right to plead his former dismissal as a bar to his
prosecution in the case now before us.
We have found considerable difficulty however in coming to an agreement as to the precise scope of the rule thus adopted. All are
agreed that in the absence of the above cited provisions of section 36 of General Orders No. 58, which provides that an order
discharging one of two or more accused persons that he may be a witness for the prosecution "shall amount to an acquittal of the
defendant thus discharged and shall be a bar to further prosecution for the same offense," a corrupt and fraudulent agreement, or
an agreement not faithfully with by the accused would be no bar to further prosecution. Some of the members of the court are of
opinion that notwithstanding this provision, such agreements are always vitiated by the failure of the accused to testify honestly and
faithfully, it matters not whether the accused is discharged at or before the trial, other members of the court, of whom the writer of
this opinion is one, are inclined to believe that while the general rule as held by the majority is applicable in all cases where the
agreement is made and the order of discharge is entered before the trial actually begins, it is limited and restricted by the provisions
of section 36, and that in any case wherein an accused person is thus discharged after he has entered on trial, the discharge amounts
to an acquittal and bar a further prosecution. This on the assumption (questioned by various members of the court) that sections 34,
35 and 36 purport only to deal with, and do in fact deal only with incidents of "the trial," and declare merely what the procedure
shall being cases of such discharges after the trial has begun.
But however this may be, we are all agreed that in the case at bar, in which the order discharging defendant was made before the
trial began, appellant was not entitled to have the order of discharge held to amount to an acquittal or a bar to further prosecution.
We find no errors in the proceedings prejudicial to the substantial rights of the accused, and the judgment convicting and sentencing
him should therefore be affirmed, with the costs of this instance against him. So ordered.
Arellano, C.J., and Torres, J., concur.

Araullo, J., dissents.
SUPREME COURT
Manila
EN BANC
G.R. No. L-44896 July 31, 1936
RODOLFO A. SCHNECKENBURGER, petitioner,

vs.
MANUEL V. MORAN, Judge of First Instance of Manila, respondent.
Cardenas and Casal for petitioner.

Office of the Solicitor-General Hilado for respondent.
ABAD SANTOS, J.:
The petitioner was duly accredited honorary consul of Uruguay at Manila, Philippine Islands on June 11, 1934. He was
subsequently charged in the Court of First Instance of Manila with the crime of falsification of a private document. He objected to
the jurisdiction of the court on the ground that both under the Constitution of the United States and the Constitution of the
Philippines the court below had no jurisdiction to try him. His objection having been overruled, he filed this petition for a writ of
prohibition with a view to preventing the Court of First Instance of Manila from taking cognizance of the criminal action filed
against him.
In support of this petition counsel for the petitioner contend (1) That the Court of First Instance of Manila is without jurisdiction to
try the case filed against the petitioner for the reason that under Article III, section 2, of the Constitution of the United States, the
Supreme Court of the United States has original jurisdiction in all cases affecting ambassadors, other public ministers, and
consuls, and such jurisdiction excludes the courts of the Philippines; and (2) that even under the Constitution of the Philippines
original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, is conferred exclusively upon the
Supreme Court of the Philippines.
This case involves no question of diplomatic immunity. It is well settled that a consul is not entitled to the privileges and
immunities of an ambassador or minister, but is subject to the laws and regulations of the country to which he is accredited. (Ex
parte Baiz, 135 U. S., 403; 34 Law. ed., 222.) A consul is not exempt from criminal prosecution for violations of the laws of the
country where he resides. (U. S. vs. Ravara, 2 Dall., 297; 1 Law. ed., 388; Wheaton's International Law [2d ed.], 423.) The
substantial question raised in this case is one of jurisdiction.
1. We find no merit in the contention that Article III, section 2, of the Constitution of the United States governs this case.
We do not deem it necessary to discuss the question whether the constitutional provision relied upon by the petitioner
extended ex propio vigore over the Philippines. Suffice it to say that the inauguration of the Philippine Commonwealth
on November 15, 1935, has brought about a fundamental change in the political and legal status of the Philippines. On
the date mentioned the Constitution of the Philippines went into full force and effect. This Constitution is the supreme
law of the land. Not only the members of this court but all other officers, legislative, executive and judicial, of the
Government of the Commonwealth, are bound by oath to support the Constitution. (Article XIII, section 2.) This court
owes its own existence to the great instrument, and derives all its powers therefrom. In the exercise of its powers and
jurisdiction, this court is bound by the provisions of the Constitution. The Constitution provides that the original
jurisdiction of this court "shall include all cases affecting ambassadors, other public ministers, and consuls." In deciding
the instant case this court cannot go beyond this constitutional provision.
2. It remains to consider whether the original jurisdiction thus conferred upon this court by the Constitution over cases
affecting ambassadors, other public ministers, and consuls, is exclusive. The Constitution does not define the
jurisdiction of this court in specific terms, but merely provides that "the Supreme Court shall have such original and
appellate jurisdiction as may be possessed and exercised by the Supreme Court of the Philippine Islands at the time of
the adoption of this Constitution." It then goes on to provide that the original jurisdiction of this court "shall include all
cases affecting ambassadors, other public ministers, and consuls."
In the light of the constitutional provisions above adverted to, the question arises whether the original jurisdiction possessed and
exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution was exclusive.
The original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of
the Constitution was derived from section 17 of Act No. 136, which reads as follows: The Supreme Court shall have original
jurisdiction to issue writs of mandamus, certiorari, prohibition, habeas corpus, and quo warranto in the cases and in the manner
prescribed in the Code of Civil Procedure, and to hear and determine the controversies thus brought before it, and in other
cases provided by law." Jurisdiction to issue writs of quo warranto, certiorari, mandamus, prohibition, and habeas corpus was
also conferred on the Courts of First Instance by the Code of Civil Procedure. (Act No. 190, secs. 197, 217, 222, 226, and 525.)
It results that the original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the
adoption of the Constitution was not exclusive of, but concurrent with, that of the Courts of First Instance. Inasmuch as this is the
same original jurisdiction vested in this court by the Constitution and made to include all cases affecting ambassadors, other
public ministers, and consuls, it follows that the jurisdiction of this court over such cases is not exclusive.
The conclusion we have reached upon this branch of the case finds support in the pertinent decisions of the Supreme Court of
the United States. The Constitution of the United States provides that the Supreme Court shall have "original jurisdiction" in all
cases affecting ambassadors, other public ministers, and consuls. In construing this constitutional provision, the Supreme Court
of the United States held that the "original jurisdiction thus conferred upon the Supreme Court by the Constitution was not
exclusive jurisdiction, and that such grant of original jurisdiction did not prevent Congress from conferring original jurisdiction in
cases affecting consuls on the subordinate courts of the Union. (U. S. vs. Ravara, supra; Bors vs. Preston, 111 U. S., 252; 28
Law. ed., 419.)
3. The laws in force in the Philippines prior to the inauguration of the Commonwealth conferred upon the Courts of the First
Instance original jurisdiction in all criminal cases to which a penalty of more than six months' imprisonment or a fine exceeding
one hundred dollars might be imposed. (Act No. 136, sec. 56.) Such jurisdiction included the trial of criminal actions brought
against consuls for, as we have already indicated, consuls, not being entitled to the privileges and immunities of ambassadors or
ministers, are subject to the laws and regulations of the country where they reside. By Article XV, section 2, of the Constitution,
all laws of the Philippine Islands in force at the time of the adoption of the Constitution were to continue in force until the
inauguration of the Commonwealth; thereafter, they were to remain operative, unless inconsistent with the Constitution until
amended, altered, modified, or repealed by the National Assembly. The original jurisdiction granted to the Courts of First
Instance to try criminal cases was not made exclusively by any, law in force prior to the inauguration of the Commonwealth, and
having reached the conclusion that the jurisdiction conferred upon this court by the Constitution over cases affecting
ambassadors, other public ministers, and consuls, is not an exclusive jurisdiction, the laws in force at the time of the adoption of
the Constitution, granting the Courts of First Instance jurisdiction in such cases, are not inconsistent with the Constitution, and
must be deemed to remain operative and in force, subject to the power of the National Assembly to amend alter, modify, or
repeal the same. (Asiatic P. Co.vs. Insular Collector of Customs, U. S. Supreme Court [Law. ed.], Adv. Ops., vol. 80, No. 12, pp.
620, 623.)
We conclude, therefore, that the Court of First Instance of Manila has jurisdiction to try the petitioner, an that the petition for a
writ of prohibition must be denied. So ordered.
Avanceña, C. J., Villa-Real, Imperial, Diaz, and Recto, JJ., concur.
Separate Opinions
LAUREL, J., concurring:
In my humble opinion, there are three reasons why the jurisdiction of this court over the petitioner in the instant case is
concurrent and not exclusive. The strictly legal reason is set forth in the preceding illuminating opinion. The other reasons are (a)
historical and based on what I consider is the (b) theory upon which the grant of legislative authority under our Constitution is
predicated.
(a) As the provision in our Constitution regarding jurisdiction in cases affecting ambassadors, other public ministers, and
consuls, has been taken from the Constitution of the United States, considerable light would be gained by an examination of the
history and interpretation thereof in the United States.
The fifth resolution of the New Jersey plan (Paterson resolutions of June 15, 1787) gave the Supreme Court of the United
States, the only national court under the plan, authority to hear and determine "by way of appeal, in the dernier resort . . . all
cases touching the rights of ambassadors . . . ." This clause, however, was not approved. On July 18, the Convention of 1787
voted an extraordinarily broad jurisdiction to the Supreme Court extending "to cases arising under laws passed by the general
legislature, and to such other questions as involve the national peace and harmony." This general proposition was considerably
narrowed by Randolph in his draft of May 29 which, however, did not mention anything about ambassadors, other public
ministers and consuls. But the Committee of Detail, through Rutledge, reported on August 6 as follows: "Article XI, Section 3.
The jurisdiction of the Supreme Court shall extend . . . to all cases affecting ambassadors, other public ministers and
consuls; . . . In . . . cases affecting ambassadors, other public ministers and consuls, . . . this jurisdiction shall be
original . . . ."On September 12, the Committee on Style reported the provision as follows: "Article III, Section 2. The judicial
power shall extend . . . to all cases affecting ambassadors, other public ministers and consuls . . . In (all) cases affecting
ambassadors, other public ministers and consuls . . . the Supreme Court shall have original jurisdiction." This provision was
approved in the convention with hardly any amendment or debate and is now found in clause 2, section 2 of Article III of the
Constitution of the United States. (The Constitution and the Courts, Article on "Growth of the Constitution", by William M. Meigs,
New York, 1924, vol. 1, pp. 228, 229. See also Farrand, Records of the Federal Convention of 1787, Yale University Press,
1934, 3 vols.; Warren, The Making of the Constitution, Boston, 1928, pp. 534-537.)
The word "original", however, was early interpreted as not exclusive. Two years after the adoption of the Federal Constitution, or
in 1789, the First Judiciary Act (Act of September 24, 1789, 1 Stat., c. 20, 687) was approved by the first Congress creating the
United States District and Circuit Courts which were nisi prius courts, or courts of first instance which dealt with different items of
litigation. The district courts are now the only federal courts of first instance, the circuit courts having been abolished by the Act
of March 3, 1911, otherwise known as the Judicial Code. The Judiciary Act of 1787 invested the district courts with jurisdiction,
exclusively of the courts of the several states, of all suits against consuls or vice-consuls and the Supreme Court of the United
States with original but not exclusive jurisdiction of all suits in which a consul or vice-consul shall be a party. By the passage of
the Act of February 18, 1875 (18 Stat., 470, c. 137), the clause giving the federal courts exclusive jurisdiction was repealed and,
since then state courts have had concurrent jurisdiction with the federal courts over civil or criminal proceedings against a consul
or vice-consul. At the present time, the federal courts exercise exclusive jurisdiction "of suits or proceedings against
ambassadors or other or other public ministers, or their domestics or domestic servants, as a court of law can have consistently
with the law of nations; and original, but not exclusive, jurisdiction, of all suits brought by ambassadors or other public ministers,
or in which a consul or vice-consul is a party." (Act of March 8, 1911, 36 Stat., 1156, reenacting sec. 687 of the Act of September
24, 1789; 28 U. S. C. A., sec. 341; Hopkins' Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 233.) The district courts now
have original jurisdiction of all suits against consuls and vice-consuls." (Act of March 3, 1911, 36 Stat., 1093; 28 U. S. C. A., sec.
41, subsec. 18; Hopkins' Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 24, par. 18.)
The Judiciary Act of 1789 was one of the early and most satisfactory acts passed by the Congress of the United States. It has
remained essentially unchanged for more than 145 years. It was prepared chiefly by Oliver Ellsworth of Connecticut (1 Ann.
Cong., 18, April 7, 1789) one of the ablest jurists in the Constitutional Convention, who was later Chief Justice of the Supreme
Court of the United States (1796-1800). It is interesting to note that 10 of the 18 senators and 8 of the members of the House of
the first Congress had been among the 55 delegates who actually attended the Convention that adopted the federal Constitution
(Warren, Congress, the Constitution and the Supreme Court [Boston, 1935], p. 99). When, therefore, the first Congress
approved the Judiciary Act of 1789 vesting in the Supreme Court original but not exclusive jurisdiction of all suits in which a
consul or a vice-consul shall be a party, express legislative interpretation as to the meaning of the word "original" as not being
exclusive was definitely made and this interpretation has never been repudiated. As stated by the Supreme Court of the United
States in Ames vs. Kansas ([1884], 111 U. S., 449; 4 S. Ct., 437; 28 Law. ed., 482):
In view of the practical construction put on this provision of the Constitution by Congress, at the very moment of the
organization of the government, and of the significant fact that, from 1789 until now, no court of the United States has
ever in its actual adjudications determined to the contrary, we are unable to say that it is not within the power of
Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been
vested by the Constitution with original jurisdiction. It rests with the legislative department of the government to say to
what extent such grants shall be made, and it may safely be assumed that nothing will ever be done to encroach upon
the high privileges of those for whose protection the constitutional provision was intended. At any rate, we are unwilling
to say that the power to make the grant does not exist.
Dicta in some earlier cases seem to hold that the word "original" means "exclusive" and as observed by Justice Field in United
States vs. Louisiana ([1887], 123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69), the question has given rise to some differences of
opinion among the earlier members of the Supreme Court of the United States. (See, for instance, dissenting opinion of Iredell,
J., in U. S. vs. Ravara [1793], 2 Dall., 297; 1 Law. ed., 388.) Reliance was had on more or less general expressions made by
Chief Justice Marshall in the case of Marbury vs. Madison ([1803], 1 Cranch, 137; 2 Law. ed., 60), where it was said:
"If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall
be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made
in the constitution, is form without substance." But Chief Justice Marshall who penned the decision in this case in 1803 had
occasion later, in 1821, to explain the meaning and extent of the pronouncements made in the Marbury case. He said:
In the case of Marbury vs. Madison ([1803], 1 Cranch [U. S.], 137, 172; 2 Law. ed., 60), the single question before the
court, so far as that case can be applied to this, was, whether the legislature could give this court original jurisdiction in
a case in which the Constitution had clearly not given it, and in which no doubt respecting the construction of the article
could possibly be raised. The court decided, and we think very properly, that the legislature could not give original
jurisdiction in such a case. But, in the reasoning of the court in support of this decision, some expressions are used
which go far beyond it. The counsel for Marbury had insisted on the unlimited discretion of the legislature in the
apportionment of the judicial power; and it is against this argument that the reasoning of the court is directed. They say
that, if such had been the intention of the article, "it would certainly have been useless to proceed farther than to define
the judicial power, and the tribunals in which it should be vested." The court says, that such a construction would render
the clause, dividing the jurisdiction of the court into original and appellate, totally useless; that "affirmative words are
often, in their operation, negative of other objects than those which are affirmed; and, in this case (in the case of
Marbury vs. Madison), a negative or exclusive sense must be given to them, or they have no operation at all." "It cannot
be presumed," adds the court, "that any clause in the Constitution is intended to be without effect; and, therefore, such
a construction is inadmissible, unless the words require it." The whole reasoning of the court proceeds upon the idea
that the affirmative words of the clause giving one sort of jurisdiction, must imply a negative of any other sort of
jurisdiction, because otherwise the words would be totally inoperative, and this reasoning is advanced in a case to
which it was strictly applicable. If in that case original jurisdiction could have been exercised, the clause under
consideration would have been entirely useless. Having such cases only in its view, the court lays down a principle
which is generally correct, in terms much broader than the decision, and not only much broader than the reasoning with
which that decision is supported, but in some instances contradictory to its principle. The reasoning sustains the
negative operation of the words in that case, because otherwise the clause would have no meaning whatever, and
because such operation was necessary to give effect to the intention of the article. The effort now made is, to apply the
conclusion to which the court was conducted by that reasoning in the particular case, to one in which the words have
their full operation when understood affirmatively, and in which the negative, or exclusive sense, is to be so used as to
defeat some of the great objects of the article. To this construction the court cannot give its assent. The general
expressions in the case of Marbury vs. Madison must be understood with the limitations which are given to them in this
opinion; limitations which in no degree affect the decision in that case, or the tenor of its reasoning. (Cohens vs. Virginia
[1821], 6 Wheat., 264, 400; 5 Law. ed., 257.)
What the Supreme Court in the case of Marbury vs. Madison held then was that Congress could not extend its original
jurisdiction beyond the cases expressly mentioned in the Constitution, the rule of construction being that affirmative words of the
Constitution declaring in what cases the Supreme Court shall have original jurisdiction must be construed negatively as to all
other cases. (See Ex parte Vallandigham [1864], 1 Wall., 243, 252; 17 Law. ed., 589; Martin vs. Hunter's Lessee [1816], 1
Wheat., 305, 330; 4 Law. ed., 97; U. S. vs. Haynes [D. C. Mass., 1887], 29 Fed., 691, 696.) That was all.
It should be observed that Chief Justice Marshall concurred in the opinion in the case of Davis vs. Packard (11833], 7 Pet., 276;
8 Law. ed., 684). In this case the jurisdiction of the state court of New York over a civil suit against a foreign consul was denied
solely on the ground that jurisdiction had been conferred in such a case upon the district courts of the United States exclusively
of the state courts. Such a ground, says Justice Harlan in Borsvs. Preston ([1884], 111 U. S., 252; 4 S. Ct., 407; 28 Law. ed.,
419), would probably not have been given had it been believed that the grant of original jurisdiction to the Supreme Court
deprived Congress of the power to confer concurrent original jurisdiction in such cases upon subordinate courts of the Union,
concluding that the decision in the case "may be regarded, as an affirmance of the constitutionality of the Act of 1789, giving
original jurisdiction in such cases, also, to District Courts of the United States." Of the seven justices who concurred in the
judgment in the case of Davis, five participated in the decision of Osborn vs. Bank of the United States ([1824], 9 Wheat., 738; 6
Law. ed., 204), also penned by Chief Justice Marshall and relied upon as authority together with Marbury vs. Madison, supra.
The rule enunciated in Bors vs. Preston, supra, is the one followed in the United States. The question involved in that case was
whether the Circuit Court then existing had jurisdiction under the Constitution and laws of the United States to hear and
determine any suit whatever against the consul of a foreign government. Justice Harlan said:
The Constitution declares that "The judicial power of the United States shall extend . . . to all cases affecting ambassadors or
other public ministers and consuls;" to controversies between citizens of a state and foreign citizens or subjects; that "In all
cases affecting ambassadors, other public ministers and consuls, . . . the Supreme Court shall have original jurisdiction;" and
that in all other cases previously mentioned in the same clause "The Supreme Court shall have appellate jurisdiction, both as to
law and fact, with such exceptions and under such regulations as the Congress shall make." The Judiciary Act of 1789 invested
the District Courts of the United States with jurisdiction, exclusively of the courts of the several States, of all suits against consuls
or vice-consuls, except for offenses of a certain character; this court, with "Original, but not exclusive, jurisdiction of all suits . . .
in which a consul or vice-consul shall be a party;" and the circuit courts with jurisdiction of civil suits in which an alien is a party. (l
Stat. at L., 76-80.) In this act we have an affirmance, by the first Congress — many of whose members participated in the
Convention which adopted the Constitution and were, therefore, conversant with the purposes of its framers — of the principle
that the original jurisdiction of this court of cases in which a consul or vice-consul is a party, is not necessarily exclusive, and that
the subordinate courts of the Union may be invested with jurisdiction of cases affecting such representatives of foreign
governments. On a question of constitutional construction, this fact is entitled to great weight.
In this case of Bors, Justice Harlan adopted the view entertained by Chief Justice Taney in the earlier case of
Gittings vs. Crawford (C. C. Md., 1838; Taney's Dec., 1, 10). In that case of Gittings, it was held that neither public policy nor
convenience would justify the Supreme Court in implying that Congress is prohibited from giving original jurisdiction in cases
affecting consuls to the inferior judicial tribunals of the United States. Chief Justice Taney said:
If the arrangement and classification of the subjects of jurisdiction into appellate and original, as respects the Supreme
Court, do not exclude that tribunal from appellate power in the cases where original jurisdiction is granted, can it be
right, from the same clause, to imply words of exclusion as respects other courts whose jurisdiction is not there limited
or prescribed, but left for the future regulation of Congress? The true rule in this case is, I think, the rule which is
constantly applied to ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-matter to one
court, does not, of itself, imply that that jurisdiction is to be exclusive. In the clause in question, there is nothing but mere
affirmative words of grant, and none that import a design to exclude the subordinate jurisdiction of other courts of the
United States on the same subject-matter. (See also U.S. vs. Ravara [1793], 2 Dall., 297; 1 Law. ed., 388; United
States vs.Louisiana [1887], 123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69; Ex parte Baiz [1890],135 U. S., 403; 10 S. Ct.,
854; 34 Law. ed., 222, denying writ of prohibition Hollander vs. Baiz [D. C. N. Y., 1890]; 41 Fed., 732; Iasigivs. Van de
Carr [1897], 166 U.S., 391; 17 S. Ct., 595; 41 Law. ed., 1045; Graham vs. Strucken [C. C. N. Y., 1857]; 4 Blatchf., 58;
Lorway vs. Lousada [D. C. Mass., 1866]; Fed. Cas., No. 8517; St. Luke's Hospital vs.Barclay [C. C. N. Y., 1855]; 3
Blatchf., 259; State of Texas vs. Lewis [C. C. Tex., 1882], 14 Fed., 65; State of Alabama vs. Wolffe (C. C. Ala., 1883], 18
Fed., 836, 837; Pooley vs. Luco [D. C. Cal., 1896], 76 Fed., 146.)
It is interesting to note that in the case of St. Luke's Hospital vs. Barclay, supra, the jurisdiction of circuit courts exclusive of state
courts over aliens, no exception being made as to those who were consuls, was maintained. (See 1 U. S. Stat. at L., c. 20, sec.
11, pp. 78, 79.)
From the history of, and the judicial interpretation placed on, clause 2, section 2 of Article III of the Constitution of the United
States it seems clear that the word "original" in reference to the jurisdiction of Supreme Court of the United States over cases
affecting ambassadors, other public ministers and consuls, was never intended to be exclusive as to prevent the Congress from
vesting concurrent jurisdiction over cases affecting consuls and vice-consuls in other federal courts.
It should be observed that the Philadelphia Convention of 1787 placed cases affecting the official representatives of foreign
powers under the jurisdiction of Federal Supreme Court to prevent the public peace from being jeopardized. Since improper
treatment of foreign ambassadors, other public ministers and consuls may be acasus belli, it was thought that the federal
government, which is responsible for their treatment under international law, should itself be provided with the means to meet
the demands imposed by international duty. (Tucker, The Constitution of the United States [1899], vol. II, 760, 772; vide, The
Federalist, No. LXXXI, Ashley's Reprint [1917], 415.) Bearing in mind in the distinction which international law establishes
between ambassadors and other public ministers, on the one hand, and consuls and other commercial representatives, on the
other, Congress saw it fit to provide in one case a rule different from the other, although as far as consuls and vice-consuls are
concerned, the jurisdiction of the Federal Supreme Court, as already observed, though original is not exclusive. But in the United
States, there are two judicial systems, independent one from the other, while in the Philippines there is but one judicial system.
So that the reason in the United States for excluding certain courts — the state courts — from taking cognizance of cases
against foreign representatives stationed in the United States does not obtain in the Philippines where the court of the lowest
grade is as much a part of an integrated system as the highest court.
Let us now turn our own laws as they affect the case of the petitioner. Undoubtedly Philippine courts are not federal courts and
they are not governed by the Judiciary Acts of the United States. We have a judicial system of our own, standing outside the
sphere of the American federal system and possessing powers and exercising jurisdiction pursuant to the provisions of our own
Constitution and laws.
The jurisdiction of our courts over consuls is defined and determined by our Constitution and laws which include applicable
treaties and accepted rules of the laws of nations. There are no treaties between the United States and Uruguay exempting
consuls of either country from the operation of local criminal laws. Under the generally accepted principles of international law,
declared by our Constitution as part of the law of the nation (Art. II sec. 3, cl. 2), consuls and vice-consuls and other commercial
representatives of foreign nations do not possess the status and can not claim the privilege and immunities accorded to
ambassadors and ministers. (Wheaton, International Law, sec. 249; Kent, Commentaries, 44; Story on the Constitution, sec.
1660; Mathews, The American Constitutional System [1932], 204, 205; Gittings vs. Crawford, C. C. Md., 1838; Taney's Dec., 1;
Wilcoxvs. Luco, 118 Cal., 639; 45 Pac., 676; 2 C. J., 9 R. C. L., 161.) The only provisions touching the subject to which we may
refer are those found in the Constitution of the Philippines. Let us trace the history of these provisions.
The report of the committee on the Judicial Power, submitted on September 29, 1934, did not contain any provisions regarding
cases affecting ambassadors, other public ministers and consuls. The draft of the sub-committee of seven of the Sponsorship
Committee, submitted on October 20, 1934, however, contains the following provision:
Article X, Section 2. The Supreme Court shall have such original jurisdiction as may be possessed and exercised by the
present Supreme Court of the Philippine Islands at the time of the adoption of this Constitution, which jurisdiction shall
include all cases affecting ambassadors, other foreign ministers and consuls . . . ." The Special Committee on the
Judiciary, composed principally of Delegates Vicente J. Francisco and Norberto Romualdez, included in its report the
provisions which now appear in sections 2 and 3 of Article VIII of the Constitution. Section 2 provides:
The National Assembly shall have the power to define, prescribed, and apportion the jurisdiction of the various courts,
but may not deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors, other ministers and
consuls . . . . And the second sentence of section 3 provides:
The original jurisdiction of the Supreme Court shall include all cases affecting ambassadors, other public ministers and
consuls.
The provision in our Constitution in so far as it confers upon our Supreme Court "original jurisdiction over cases affecting
ambassadors, other public ministers and consuls" is literally the same as that contained in clause 2, section 2 of Article III of the
United States Constitution.
In the course of the deliberation of the Constitutional Convention, some doubt was expressed regarding the character of the
grant of "original jurisdiction" to our Supreme Court. An examination of the records of the proceedings of the Constitutional
convention show that the framers of our Constitution were familiar with the history of, and the judicial construction placed on, the
same provision of the United States Constitution. In order to end what would have been a protracted discussion on the subject, a
member of the Special Committee on the Judiciary gave the following information to the members of the Convention:
. . . Sr. Presidente, a fin de poder terminar con el Articulo 2, el Comite esta dispuesto a hacer constar que la interpretacion que
debe dard a la ultima parte de dicho articulo es la misma interpretacion que siempre se ha dado a semejante disposicion en la
Constitucion de los Estados Unidos. (January 16,1935.) Without further discussion, the provision was then and there approved.
It thus appears that the provision in question has been given a well-settled meaning in the United States — the country of its
origin. It has there received definite and hitherto unaltered legislative and judicial interpretation. And the same meaning was
ascribed to it when incorporated in our own Constitution. To paraphrase Justice Gray of the Supreme Court of the United States,
we are justified in interpreting the provision of the Constitution in the light of the principles and history with which its framers
were familiar. (United States vs. Wong Kin Ark [1897], 169 U. S., 649; 18 S. Ct., 456; 42 Law. ed., 890, cited with approval in
Kepner vs. United States, a case of Philippine origin [1904]; 195 U. S., 100; 49 Law. ed., 114.)
(b) What has been said hereinabove is not unnecessary attachment to history or idolatrous adherence to precedents. In referring
to the history of this provision of our Constitution it is realized that historical discussion while valuable is not necessarily decisive.
Rationally, however, the philosophical reason for the conclusion announced is not far to seek if certain principles of constitutional
government are borne in mind. The constitution is both a grant of, and a limitation upon, governmental powers. In the absence of
clear and unequivocal restraint of legislative authority, the power is retained by the people and is exercisable by their
representatives in their legislature. The rule is that the legislature possess plenary power for all purposes of civil government. A
prohibition to exercise legislative power is the exception. (Denio, C. J., in People vs. Draper, 15 N.Y., 532, 543.) These
prohibitions or restrictions are found either in the language used, or in the purpose held in view as well as the circumstances
which led to the adoption of the particular provision as part of the fundamental law. (Ex parteLewis, 45 Tex. Crim. Rep., 1; 73 S.
W., 811; 108 Am. St. Rep., 929.)
Subject to certain limitations, the Filipino people, through their delegates, have committed legislative power in a most general
way to the National Assembly has plenary legislative power in all matters of legislation except as limited by the constitution.
When, therefore, the constitution vests in the Supreme Court original jurisdiction in cases affecting ambassadors, other public
ministers and consuls, without specifying the exclusive character of the grant, the National Assembly is not deprived of its
authority to make that jurisdiction concurrent. It has been said that popular government lives because of the inexhaustible
reservoir of power behind. 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, p.139,ante.) What the Constitution prohibits is merely the deprivation of the Supreme Court of its original
jurisdiction over cases affecting ambassadors, other public ministers and consuls and while it must be admitted that original
jurisdiction if made concurrent no longer remains exclusive, it is also true that jurisdiction does not cease to be original merely
because it is concurrent.
It is also quite true that concurrent original jurisdiction in this class of cases would mean the sharing of the Supreme Court with
the most inferior courts of cases affecting ambassadors, other public ministers and consuls such that the Supreme Court would
have concurrent jurisdiction with the lowest courts in our judicial hierarchy, the justice of the peace of the courts, in a petty case
for the instance, the violation of a municipal ordinance affecting the parties just mentioned. However, no serious objection to
these result can be seen other that the misinterpreted unwillingness to share this jurisdiction with a court pertaining to the lowest
category in our judicial organization. Upon the other hand, the fundamental reasoning would apply with equal force if the highest
court of the land is made to take recognizance exclusively of a case involving the violation of the municipal ordinance simply
because of the character of the parties affected. After alluding to the fact that the position of consul of a foreign government is
sometimes filled by a citizen of the United States (and this also true in the Philippines) Chief Justice Taney, in
Gittings vs. Crawford, supra, observed:
It could hardly have been the intention of the statesmen who framed our constitution to require that one of our citizens
who had a petty claim of even less than five dollars against another citizen, who had been clothed by some foreign
government with the consular office, should be compelled to go into the Supreme Court to have a jury summoned in
order to enable him to recover it; nor could it have been intended, that the time of that court, with all its high duties to
perform, should be taken up with the trial of every petty offense that might be committed by a consul by any part of the
United States; that consul, too, being often one of our own citizens.
Probably, the most serious objection to the interpretation herein advocated is, that considering the actual distribution of
jurisdiction between the different courts in our jurisdiction, there may be cases where the Supreme Court may not actually
exercise either original — whether exclusive or concurrent — or appellate jurisdiction, notwithstanding the grant of original
jurisdiction in this class of cases to the Supreme Court. If, for instance, a criminal case is brought either in a justice of the peace
court or in a Court of First Instance against a foreign consul and no question of law is involved, it is evident that in case of
conviction, the proceedings will terminate in the Court Appeals and will not reach the Supreme Court. In this case, the Supreme
Court will be deprived of all jurisdiction in a case affecting a consul notwithstanding the grant thereto in the Constitution of
original jurisdiction in all cases affecting consuls. This is a situation, however, created not by the Constitution but by existing
legislation, and the remedy is in the hands of the National Assembly. The Constitution cannot deal with everycasus omissus, and
in the nature of things, must only deal with fundamental principles, leaving the detail of administration and execution to the other
branches of the government. It rests with the National Assembly to determine the inferior courts which shall exercise concurrent
original jurisdiction with the Supreme Court in cases affecting ambassadors, other public ministers and consuls, considering the
nature of the offense and irrespective of the amount of controversy. The National Assembly may as in the United States (Cooley,
Constitutional Law, 4th ed. [1931], sec. 4, p. 156), provide for appeal to the Supreme Court in all cases affecting foreign
diplomatic and consular representatives.
Before the approval of the Constitution, jurisdiction over consuls was exercisable by our courts. This is more so now that the
Independence Law and Constitution framed and adopted pursuant thereto are in force. The fact that the National Assembly has
not enacted any law determining what courts of the of the Philippines shall exercise concurrent jurisdiction with the Supreme
Court is of no moment. This can not mean and should not be interpreted to mean that the original jurisdiction vested in the
Supreme Court by the Constitution is not concurrent with other national courts of inferior category.
The respondent judge of the Court of First Instance of the City of Manila having jurisdiction to take cognizance of the criminal
case brought against the petitioner, the writ of prohibition should be denied.
SUPREME COURT
Manila
EN BANC
G.R. No. 176579 October 9, 2012
HEIRS OF WILSON P. GAMBOA,* Petitioners,

vs.
FINANCE SECRETARYMARGARITO B. TEVES, FINANCE UNDERSECRETARYJOHN P. SEVILLA, AND COMMISSIONER
RICARDO ABCEDE OF THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT(PCGG) IN THEIR CAPACITIES AS
CHAIR AND MEMBERS, RESPECTIVELY, OF THE PRIVATIZATION COUNCIL, CHAIRMAN ANTHONI SALIM OF FIRST
PACIFIC CO., LTD. IN HIS CAPACITY AS DIRECTOR OF METRO PACIFIC ASSET HOLDINGS INC., CHAIRMAN MANUEL
V. PANGILINAN OF PHILIPPINE LONG DISTANCE TELEPHONE COMPANY (PLDT) IN HIS CAPACITY AS MANAGING
DIRECTOR OF FIRST PACIFIC CO., LTD., PRESIDENT NAPOLEON L. NAZARENO OF PHILIPPINE LONG DISTANCE
TELEPHONE COMPANY, CHAIR FE BARIN OF THE SECURITIES AND EXCHANGE COMMISSION, and PRESIDENT
FRANCIS LIM OF THE PHILIPPINE STOCK EXCHANGE, Respondents.
PABLITO V. SANIDAD and ARNO V. SANIDAD, Petitioner-in-Intervention.
RESOLUTION
CARPIO, J.:
This resolves the motions for reconsideration of the 28 June 2011 Decision filed by (1) the Philippine Stock Exchange's (PSE)
President, 1 (2) Manuel V. Pangilinan (Pangilinan),2 (3) Napoleon L. Nazareno (Nazareno ),3and ( 4) the Securities and Exchange
Commission (SEC)4 (collectively, movants ).
The Office of the Solicitor General (OSG) initially filed a motion for reconsideration on behalfofthe SEC, 5 assailing the 28 June
2011 Decision. However, it subsequently filed a Consolidated Comment on behalf of the State, 6declaring expressly that it agrees
with the Court's definition of the term "capital" in Section 11, Article XII of the Constitution. During the Oral Arguments on 26 June
2012, the OSG reiterated its position consistent with the Court's 28 June 2011 Decision.
We deny the motions for reconsideration.
I.
Far-reaching implications of the legal issue justify
treatment of petition for declaratory relief as one for mandamus.
As we emphatically stated in the 28 June 2011 Decision, the interpretation of the term "capital" in Section 11, Article XII of the
Constitution has far-reaching implications to the national economy. In fact, a resolution of this issue will determine whether
Filipinos are masters, or second-class citizens, in their own country. What is at stake here is whether Filipinos or foreigners will
have effective control of the Philippine national economy. Indeed, if ever there is a legal issue that has far-reaching implications
to the entire nation, and to future generations of Filipinos, it is the threshold legal issue presented in this case.
Contrary to Pangilinan’s narrow view, the serious economic consequences resulting in the interpretation of the term "capital" in
Section 11, Article XII of the Constitution undoubtedly demand an immediate adjudication of this issue. Simply put, the far-
reaching implications of this issue justify the treatment of the petition as one for mandamus. 7
In Luzon Stevedoring Corp. v. Anti-Dummy Board,8 the Court deemed it wise and expedient to resolve the case although the
petition for declaratory relief could be outrightly dismissed for being procedurally defective. There, appellant admittedly had
already committed a breach of the Public Service Act in relation to the Anti-Dummy Law since it had been employing non-
American aliens long before the decision in a prior similar case. However, the main issue in Luzon Stevedoring was of
transcendental importance, involving the exercise or enjoyment of rights, franchises, privileges, properties and businesses which
only Filipinos and qualified corporations could exercise or enjoy under the Constitution and the statutes. Moreover, the same
issue could be raised by appellant in an appropriate action. Thus, in Luzon Stevedoring the Court deemed it necessary to finally
dispose of the case for the guidance of all concerned, despite the apparent procedural flaw in the petition.
The circumstances surrounding the present case, such as the supposed procedural defect of the petition and the pivotal legal
issue involved, resemble those in Luzon Stevedoring. Consequently, in the interest of substantial justice and faithful adherence
to the Constitution, we opted to resolve this case for the guidance of the public and all concerned parties.
II.
No change of any long-standing rule;
thus, no redefinition of the term "capital."
Movants contend that the term "capital" in Section 11, Article XII of the Constitution has long been settled and defined to refer to
the total outstanding shares of stock, whether voting or non-voting. In fact, movants claim that the SEC, which is the
administrative agency tasked to enforce the 60-40 ownership requirement in favor of Filipino citizens in the Constitution and
various statutes, has consistently adopted this particular definition in its numerous opinions. Movants point out that with the 28
June 2011 Decision, the Court in effect introduced a "new" definition or "midstream redefinition" 9 of the term "capital" in Section
11, Article XII of the Constitution.
This is egregious error.
For more than 75 years since the 1935 Constitution, the Court has not interpreted or defined the term "capital" found in various
economic provisions of the 1935, 1973 and 1987 Constitutions. There has never been a judicial precedent interpreting the term
"capital" in the 1935, 1973 and 1987 Constitutions, until now. Hence, it is patently wrong and utterly baseless to claim that the
Court in defining the term "capital" in its 28 June 2011 Decision modified, reversed, or set aside the purported long-standing
definition of the term "capital," which supposedly refers to the total outstanding shares of stock, whether voting or non-voting. To
repeat, until the present case there has never been a Court ruling categorically defining the term "capital" found in the various
economic provisions of the 1935, 1973 and 1987 Philippine Constitutions.
The opinions of the SEC, as well as of the Department of Justice (DOJ), on the definition of the term "capital" as referring to both
voting and non-voting shares (combined total of common and preferred shares) are, in the first place, conflicting and
inconsistent. There is no basis whatsoever to the claim that the SEC and the DOJ have consistently and uniformly adopted a
definition of the term "capital" contrary to the definition that this Court adopted in its 28 June 2011 Decision.
In DOJ Opinion No. 130, s. 1985,10 dated 7 October 1985, the scope of the term "capital" in Section 9, Article XIV of the 1973
Constitution was raised, that is, whether the term "capital" includes "both preferred and common stocks." The issue was raised
in relation to a stock-swap transaction between a Filipino and a Japanese corporation, both stockholders of a domestic
corporation that owned lands in the Philippines. Then Minister of Justice Estelito P. Mendoza ruled that the resulting ownership
structure of the corporation would beunconstitutional because 60% of the voting stock would be owned by Japanese while
Filipinos would own only 40% of the voting stock, although when the non-voting stock is added, Filipinos would own 60% of the
combined voting and non-voting stock. This ownership structure is remarkably similar to the current ownership structure
of PLDT. Minister Mendoza ruled:
xxxx
Thus, the Filipino group still owns sixty (60%) of the entire subscribed capital stock (common and preferred) while the Japanese
investors control sixty percent (60%) of the common (voting) shares.
It is your position that x x x since Section 9, Article XIV of the Constitution uses the word "capital," which is construed
"to include both preferred and common shares" and "that where the law does not distinguish, the courts shall not
distinguish."
xxxx
In light of the foregoing jurisprudence, it is my opinion that the stock-swap transaction in question may not be
constitutionally upheld. While it may be ordinary corporate practice to classify corporate shares into common voting shares
and preferred non-voting shares, any arrangement which attempts to defeat the constitutional purpose should be
eschewed. Thus, the resultant equity arrangement which would place ownership of 60% 11 of the common (voting)
shares in the Japanese group, while retaining 60% of the total percentage of common and preferred shares in Filipino
hands would amount to circumvention of the principle of control by Philippine stockholders that is implicit in the 60%
Philippine nationality requirement in the Constitution. (Emphasis supplied)
In short, Minister Mendoza categorically rejected the theory that the term "capital" in Section 9, Article XIV of the 1973
Constitution includes "both preferred and common stocks" treated as the same class of shares regardless of differences in
voting rights and privileges. Minister Mendoza stressed that the 60-40 ownership requirement in favor of Filipino citizens in the
Constitution is not complied with unless the corporation "satisfies the criterion of beneficial ownership" and that in applying
the same "the primordial consideration is situs of control."
On the other hand, in Opinion No. 23-10 dated 18 August 2010, addressed to Castillo Laman Tan Pantaleon & San Jose, then
SEC General Counsel Vernette G. Umali-Paco applied the Voting Control Test, that is, using only the voting stock to determine
whether a corporation is a Philippine national. The Opinion states:
Applying the foregoing, particularly the Control Test, MLRC is deemed as a Philippine national because: (1) sixty percent
(60%) of its outstanding capital stock entitled to vote is owned by a Philippine national, the Trustee; and (2) at least sixty
percent (60%) of the ERF will accrue to the benefit of Philippine nationals. Still pursuant to the Control Test, MLRC’s
investment in 60% of BFDC’s outstanding capital stock entitled to vote shall be deemed as of Philippine nationality,
thereby qualifying BFDC to own private land.
Further, under, and for purposes of, the FIA, MLRC and BFDC are both Philippine nationals, considering that: (1) sixty percent
(60%) of their respective outstanding capital stock entitled to vote is owned by a Philippine national (i.e., by the Trustee, in
the case of MLRC; and by MLRC, in the case of BFDC); and (2) at least 60% of their respective board of directors are Filipino
citizens. (Boldfacing and italicization supplied)
Clearly, these DOJ and SEC opinions are compatible with the Court’s interpretation of the 60-40 ownership requirement in favor
of Filipino citizens mandated by the Constitution for certain economic activities. At the same time, these opinions highlight the
conflicting, contradictory, and inconsistent positions taken by the DOJ and the SEC on the definition of the term "capital" found in
the economic provisions of the Constitution.
The opinions issued by SEC legal officers do not have the force and effect of SEC rules and regulations because only the
SEC en banc can adopt rules and regulations. As expressly provided in Section 4.6 of the Securities Regulation Code, 12 the SEC
cannot delegate to any of its individual Commissioner or staff the power to adopt any rule or regulation. Further, under Section
5.1 of the same Code, it is the SEC as a collegial body, and not any of its legal officers, that is empowered to
issue opinions and approve rules and regulations. Thus:
4.6. The Commission may, for purposes of efficiency, delegate any of its functions to any department or office of the
Commission, an individual Commissioner or staff member of the Commission exceptits review or appellate authority and its
power to adopt, alter and supplement any rule or regulation.
The Commission may review upon its own initiative or upon the petition of any interested party any action of any department or
office, individual Commissioner, or staff member of the Commission.
SEC. 5. Powers and Functions of the Commission.- 5.1. The Commission shall act with transparency and shall have the powers
and functions provided by this Code, Presidential Decree No. 902-A, the Corporation Code, the Investment Houses Law, the
Financing Company Act and other existing laws. Pursuant thereto the Commission shall have, among others, the following
powers and functions:
xxxx
(g) Prepare, approve, amend or repeal rules, regulations and orders, and issue opinions and provide guidance on and
supervise compliance with such rules, regulations and orders;
x x x x (Emphasis supplied)
Thus, the act of the individual Commissioners or legal officers of the SEC in issuing opinions that have the effect of SEC rules or
regulations is ultra vires. Under Sections 4.6 and 5.1(g) of the Code, only the SEC en banc can "issue opinions" that have the
force and effect of rules or regulations. Section 4.6 of the Code bars the SEC en banc from delegating to any individual
Commissioner or staff the power to adopt rules or regulations. In short, any opinion of individual Commissioners or SEC
legal officers does not constitute a rule or regulation of the SEC.
The SEC admits during the Oral Arguments that only the SEC en banc, and not any of its individual commissioners or legal staff,
is empowered to issue opinions which have the same binding effect as SEC rules and regulations, thus:
JUSTICE CARPIO:
So, under the law, it is the Commission En Banc that can issue an
SEC Opinion, correct?
COMMISSIONER GAITE:13
That’s correct, Your Honor.
JUSTICE CARPIO:
Can the Commission En Banc delegate this function to an SEC officer?
COMMISSIONER GAITE:
Yes, Your Honor, we have delegated it to the General Counsel.
JUSTICE CARPIO:
It can be delegated. What cannot be delegated by the Commission En Banc to a commissioner or an individual
employee of the Commission?
COMMISSIONER GAITE:
Novel opinions that [have] to be decided by the En Banc...
JUSTICE CARPIO:
What cannot be delegated, among others, is the power to adopt or amend rules and regulations, correct?
COMMISSIONER GAITE:
That’s correct, Your Honor.
JUSTICE CARPIO:
So, you combine the two (2), the SEC officer, if delegated that power, can issue an opinion but that
opinion does not constitute a rule or regulation, correct?
COMMISSIONER GAITE:
Correct, Your Honor.
JUSTICE CARPIO:
So, all of these opinions that you mentioned they are not rules and regulations, correct?
COMMISSIONER GAITE:
They are not rules and regulations.
JUSTICE CARPIO:
If they are not rules and regulations, they apply only to that particular situation and will not constitute a
precedent, correct?
COMMISSIONER GAITE:
Yes, Your Honor.14 (Emphasis supplied)

Significantly, the SEC en banc, which is the collegial body statutorily empowered to issue rules and opinions on behalf of the
SEC, has adopted even the Grandfather Rule in determining compliance with the 60-40 ownership requirement in favor of
Filipino citizens mandated by the Constitution for certain economic activities. This prevailing SEC ruling, which the SEC correctly
adopted to thwart any circumvention of the required Filipino "ownership and control," is laid down in the 25 March 2010
SEC en banc ruling in Redmont Consolidated Mines, Corp. v. McArthur Mining, Inc., et al.,15 to wit:
The avowed purpose of the Constitution is to place in the hands of Filipinos the exploitation of our natural
resources. Necessarily, therefore, the Rule interpreting the constitutional provision should not diminish that right
through the legal fiction of corporate ownership and control. But the constitutional provision, as interpreted and practiced
via the 1967 SEC Rules, has favored foreigners contrary to the command of the Constitution. Hence, the Grandfather Rule
must be applied to accurately determine the actual participation, both direct and indirect, of foreigners in a corporation
engaged in a nationalized activity or business.
Compliance with the constitutional limitation(s) on engaging in nationalized activities must be determined by ascertaining if 60%
of the investing corporation’s outstanding capital stock is owned by "Filipino citizens", or as interpreted, by natural or individual
Filipino citizens. If such investing corporation is in turn owned to some extent by another investing corporation, the same
process must be observed. One must not stop until the citizenships of the individual or natural stockholders of layer after layer of
investing corporations have been established, the very essence of the Grandfather Rule.
Lastly, it was the intent of the framers of the 1987 Constitution to adopt the Grandfather Rule. In one of the discussions
on what is now Article XII of the present Constitution, the framers made the following exchange:
MR. NOLLEDO. In Sections 3, 9 and 15, the Committee stated local or Filipino equity and foreign equity; namely, 60-40 in
Section 3, 60-40 in Section 9, and 2/3-1/3 in Section 15.
MR. VILLEGAS. That is right.
MR. NOLLEDO. In teaching law, we are always faced with the question: ‘Where do we base the equity requirement, is it on the
authorized capital stock, on the subscribed capital stock, or on the paid-up capital stock of a corporation’? Will the Committee
please enlighten me on this?
MR. VILLEGAS. We have just had a long discussion with the members of the team from the UP Law Center who provided us a
draft. The phrase that is contained here which we adopted from the UP draft is ‘60 percent of voting stock.’
MR. NOLLEDO. That must be based on the subscribed capital stock, because unless declared delinquent, unpaid capital stock
shall be entitled to vote.
MR. NOLLEDO. Thank you. With respect to an investment by one corporation in another corporation, say, a corporation with 60-
40 percent equity invests in another corporation which is permitted by the Corporation Code, does the Committee adopt the
grandfather rule?
MR. VILLEGAS. Yes, that is the understanding of the Committee.
MR. NOLLEDO. Therefore, we need additional Filipino capital?
MR. VILLEGAS. Yes. (Boldfacing and underscoring supplied; italicization in the original)
This SEC en banc ruling conforms to our 28 June 2011 Decision that the 60-40 ownership requirement in favor of Filipino
citizens in the Constitution to engage in certain economic activities applies not only to voting control of the corporation, but also
to the beneficial ownership of the corporation. Thus, in our 28 June 2011 Decision we stated:
Mere legal title is insufficient to meet the 60 percent Filipinoowned "capital" required in the Constitution. Full beneficial
ownership of 60 percent of the outstanding capital stock, coupled with 60 percent of the voting rights, is required. The
legal and beneficial ownership of 60 percent of the outstanding capital stock must rest in the hands of Filipino nationals in
accordance with the constitutional mandate. Otherwise, the corporation is "considered as non-Philippine national[s]." (Emphasis
supplied)
Both the Voting Control Test and the Beneficial Ownership Test must be applied to determine whether a corporation is a
"Philippine national."
The interpretation by legal officers of the SEC of the term "capital," embodied in various opinions which respondents relied upon,
is merely preliminary and an opinion only of such officers. To repeat, any such opinion does not constitute an SEC rule or
regulation. In fact, many of these opinions contain a disclaimer which expressly states: "x x x the foregoing opinion is based
solely on facts disclosed in your query and relevant only to the particular issue raised therein and shall not be used in the
nature of a standing rule binding upon the Commission in other cases whether of similar or dissimilar
circumstances."16 Thus, the opinions clearly make a caveat that they do not constitute binding precedents on any one, not even
on the SEC itself.
Likewise, the opinions of the SEC en banc, as well as of the DOJ, interpreting the law are neither conclusive nor controlling and
thus, do not bind the Court. It is hornbook doctrine that any interpretation of the law that administrative or quasi-judicial agencies
make is only preliminary, never conclusive on the Court. The power to make a final interpretation of the law, in this case the term
"capital" in Section 11, Article XII of the 1987 Constitution, lies with this Court, not with any other government entity.
In his motion for reconsideration, the PSE President cites the cases of National Telecommunications Commission v. Court of
Appeals17 and Philippine Long Distance Telephone Company v. National Telecommunications Commission 18 in arguing that the
Court has already defined the term "capital" in Section 11, Article XII of the 1987 Constitution. 19
The PSE President is grossly mistaken. In both cases of National Telecommunications v. Court of Appeals20 andPhilippine Long
Distance Telephone Company v. National Telecommunications Commission, 21 the Court did not define the term "capital" as
found in Section 11, Article XII of the 1987 Constitution. In fact, these two cases never mentioned, discussed or cited
Section 11, Article XII of the Constitution or any of its economic provisions, and thus cannot serve as precedent in the
interpretation of Section 11, Article XII of the Constitution. These two cases dealt solely with the determination of the correct
regulatory fees under Section 40(e) and (f) of the Public Service Act, to wit:
(e) For annual reimbursement of the expenses incurred by the Commission in the supervision of other public services and/or in
the regulation or fixing of their rates, twenty centavos for each one hundred pesos or fraction thereof, of the capital stock
subscribed or paid, or if no shares have been issued, of the capital invested, or of the property and equipment whichever is
higher.
(f) For the issue or increase of capital stock, twenty centavos for each one hundred pesos or fraction thereof, of the increased
capital. (Emphasis supplied)
The Court’s interpretation in these two cases of the terms "capital stock subscribed or paid," "capital stock" and "capital" does
not pertain to, and cannot control, the definition of the term "capital" as used in Section 11, Article XII of the Constitution, or any
of the economic provisions of the Constitution where the term "capital" is found. The definition of the term "capital" found in the
Constitution must not be taken out of context. A careful reading of these two cases reveals that the terms "capital stock
subscribed or paid," "capital stock" and "capital" were defined solely to determine the basis for computing the supervision and
regulation fees under Section 40(e) and (f) of the Public Service Act.
III.
Filipinization of Public Utilities
The Preamble of the 1987 Constitution, as the prologue of the supreme law of the land, embodies the ideals that the
Constitution intends to achieve.22 The Preamble reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish a
Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony,
and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of
truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution. (Emphasis supplied)
Consistent with these ideals, Section 19, Article II of the 1987 Constitution declares as State policy the development of a
national economy "effectively controlled" by Filipinos:
Section 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.
Fortifying the State policy of a Filipino-controlled economy, the Constitution decrees:
Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest
dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is
owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress
shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference
to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its
national goals and priorities.23
Under Section 10, Article XII of the 1987 Constitution, Congress may "reserve to citizens of the Philippines or to corporations or
associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may
prescribe, certain areas of investments." Thus, in numerous laws Congress has reserved certain areas of investments to Filipino
citizens or to corporations at least sixty percent of the "capital" of which is owned by Filipino citizens. Some of these laws are:
(1) Regulation of Award of Government Contracts or R.A. No. 5183; (2) Philippine Inventors Incentives Act or R.A. No. 3850; (3)
Magna Carta for Micro, Small and Medium Enterprises or R.A. No. 6977; (4) Philippine Overseas Shipping Development Act or
R.A. No. 7471; (5) Domestic Shipping Development Act of 2004 or R.A. No. 9295; (6) Philippine Technology Transfer Act of 2009
or R.A. No. 10055; and (7) Ship Mortgage Decree or P.D. No. 1521.
With respect to public utilities, the 1987 Constitution specifically ordains:
Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to corporations or associations organized under the laws of the
Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or
authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted
except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good
so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign
investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all
the executive and managing officers of such corporation or association must be citizens of the Philippines. (Emphasis supplied)
This provision, which mandates the Filipinization of public utilities, requires that any form of authorization for the operation of
public utilities shall be granted only to "citizens of the Philippines or to corporations or associations organized under the laws of
the Philippines at least sixty per centum of whose capital is owned by such citizens." "The provision is [an express]
recognition of the sensitive and vital position of public utilities both in the national economy and for national
security."24
The 1987 Constitution reserves the ownership and operation of public utilities exclusively to (1) Filipino citizens, or (2)
corporations or associations at least 60 percent of whose "capital" is owned by Filipino citizens. Hence, in the case of
individuals, only Filipino citizens can validly own and operate a public utility. In the case of corporations or associations, at least
60 percent of their "capital" must be owned by Filipino citizens. In other words, under Section 11, Article XII of the 1987
Constitution, to own and operate a public utility a corporation’s capital must at least be 60 percent owned by Philippine
nationals.
IV.
Definition of "Philippine National"
Pursuant to the express mandate of Section 11, Article XII of the 1987 Constitution, Congress enacted Republic Act No. 7042 or
the Foreign Investments Act of 1991 (FIA), as amended, which defined a "Philippine national" as follows:
SEC. 3. Definitions. - As used in this Act:
a. The term "Philippine national" shall mean a citizen of the Philippines; or a domestic partnership or association wholly owned
by citizens of the Philippines; or a corporation organized under the laws of the Philippines of which at least sixty percent
(60%) of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines; or a
corporation organized abroad and registered as doing business in the Philippines under the Corporation Code of which one
hundred percent (100%) of the capital stock outstanding and entitled to vote is wholly owned by Filipinos or a trustee of funds for
pension or other employee retirement or separation benefits, where the trustee is a Philippine national and at least sixty percent
(60%) of the fund will accrue to the benefit of Philippine nationals: Provided, That where a corporation and its non-Filipino
stockholders own stocks in a Securities and Exchange Commission (SEC) registered enterprise, at least sixty percent (60%) of
the capital stock outstanding and entitled to vote of each of both corporations must be owned and held by citizens of the
Philippines and at least sixty percent (60%) of the members of the Board of Directors of each of both corporations must be
citizens of the Philippines, in order that the corporation, shall be considered a "Philippine national." (Boldfacing, italicization and
underscoring supplied)
Thus, the FIA clearly and unequivocally defines a "Philippine national" as a Philippine citizen, or a domestic corporation at
least "60% of the capital stock outstanding and entitled to vote" is owned by Philippine citizens.
The definition of a "Philippine national" in the FIA reiterated the meaning of such term as provided in its predecessor statute,
Executive Order No. 226 or the Omnibus Investments Code of 1987,25 which was issued by then President Corazon C. Aquino.
Article 15 of this Code states:
Article 15. "Philippine national" shall mean a citizen of the Philippines or a diplomatic partnership or association wholly-owned by
citizens of the Philippines; or a corporation organized under the laws of the Philippines of which at least sixty per cent
(60%) of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines; or a trustee
of funds for pension or other employee retirement or separation benefits, where the trustee is a Philippine national and at least
sixty per cent (60%) of the fund will accrue to the benefit of Philippine nationals: Provided, That where a corporation and its non-
Filipino stockholders own stock in a registered enterprise, at least sixty per cent (60%) of the capital stock outstanding and
entitled to vote of both corporations must be owned and held by the citizens of the Philippines and at least sixty per cent (60%)
of the members of the Board of Directors of both corporations must be citizens of the Philippines in order that the corporation
shall be considered a Philippine national. (Boldfacing, italicization and underscoring supplied)
Under Article 48(3)26 of the Omnibus Investments Code of 1987, "no corporation x x x which is not a ‘Philippine national’ x x x
shall do business
x x x in the Philippines x x x without first securing from the Board of Investments a written certificate to the effect that such
business or economic activity x x x would not conflict with the Constitution or laws of the Philippines." 27Thus, a "non-Philippine
national" cannot own and operate a reserved economic activity like a public utility. This means, of course, that only a "Philippine
national" can own and operate a public utility.
In turn, the definition of a "Philippine national" under Article 15 of the Omnibus Investments Code of 1987 was a reiteration of the
meaning of such term as provided in Article 14 of the Omnibus Investments Code of 1981,28 to wit:
Article 14. "Philippine national" shall mean a citizen of the Philippines; or a domestic partnership or association wholly owned by
citizens of the Philippines; or a corporation organized under the laws of the Philippines of which at least sixty per cent
(60%) of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines; or a trustee
of funds for pension or other employee retirement or separation benefits, where the trustee is a Philippine national and at least
sixty per cent (60%) of the fund will accrue to the benefit of Philippine nationals: Provided, That where a corporation and its non-
Filipino stockholders own stock in a registered enterprise, at least sixty per cent (60%) of the capital stock outstanding and
entitled to vote of both corporations must be owned and held by the citizens of the Philippines and at least sixty per cent (60%)
of the members of the Board of Directors of both corporations must be citizens of the Philippines in order that the corporation
shall be considered a Philippine national. (Boldfacing, italicization and underscoring supplied)
Under Article 69(3) of the Omnibus Investments Code of 1981, "no corporation x x x which is not a ‘Philippine national’ x x x shall
do business x x x in the Philippines x x x without first securing a written certificate from the Board of Investments to the effect
that such business or economic activity x x x would not conflict with the Constitution or laws of the Philippines." 29 Thus, a "non-
Philippine national" cannot own and operate a reserved economic activity like a public utility. Again, this means that only a
"Philippine national" can own and operate a public utility.
Prior to the Omnibus Investments Code of 1981, Republic Act No. 5186 30 or the Investment Incentives Act, which took effect on
16 September 1967, contained a similar definition of a "Philippine national," to wit:
(f) "Philippine National" shall mean a citizen of the Philippines; or a partnership or association wholly owned by citizens of the
Philippines; or a corporation organized under the laws of the Philippines of which at least sixty per cent of the capital
stock outstanding and entitled to vote is owned and held by citizens of the Philippines; or a trustee of funds for pension
or other employee retirement or separation benefits, where the trustee is a Philippine National and at least sixty per cent of the
fund will accrue to the benefit of Philippine Nationals: Provided, That where a corporation and its non-Filipino stockholders own
stock in a registered enterprise, at least sixty per cent of the capital stock outstanding and entitled to vote of both corporations
must be owned and held by the citizens of the Philippines and at least sixty per cent of the members of the Board of Directors of
both corporations must be citizens of the Philippines in order that the corporation shall be considered a Philippine National.
(Boldfacing, italicization and underscoring supplied)
Under Section 3 of Republic Act No. 5455 or the Foreign Business Regulations Act, which took effect on 30 September 1968, if
the investment in a domestic enterprise by non-Philippine nationals exceeds 30% of its outstanding capital stock, such
enterprise must obtain prior approval from the Board of Investments before accepting such investment. Such approval
shall not be granted if the investment "would conflict with existing constitutional provisions and laws regulating the degree of
required ownership by Philippine nationals in the enterprise." 31 A "non-Philippine national" cannot own and operate a reserved
economic activity like a public utility. Again, this means that only a "Philippine national" can own and operate a public utility.
The FIA, like all its predecessor statutes, clearly defines a "Philippine national" as a Filipino citizen, or adomestic
corporation "at least sixty percent (60%) of the capital stock outstanding and entitled to vote"is owned by Filipino
citizens. A domestic corporation is a "Philippine national" only if at least 60% of its voting stock is owned by Filipino citizens.
This definition of a "Philippine national" is crucial in the present case because the FIA reiterates and clarifies Section 11, Article
XII of the 1987 Constitution, which limits the ownership and operation of public utilities to Filipino citizens or to corporations or
associations at least 60% Filipino-owned.
The FIA is the basic law governing foreign investments in the Philippines, irrespective of the nature of business and area of
investment. The FIA spells out the procedures by which non-Philippine nationals can invest in the Philippines. Among the key
features of this law is the concept of a negative list or the Foreign Investments Negative List. 32 Section 8 of the law states:
SEC. 8. List of Investment Areas Reserved to Philippine Nationals [Foreign Investment Negative List]. - The Foreign
Investment Negative List shall have two 2 component lists: A and B:
a. List A shall enumerate the areas of activities reserved to Philippine nationals by mandate of the Constitution and
specific laws.
b. List B shall contain the areas of activities and enterprises regulated pursuant to law:
1. which are defense-related activities, requiring prior clearance and authorization from the Department of National Defense
[DND] to engage in such activity, such as the manufacture, repair, storage and/or distribution of firearms, ammunition, lethal
weapons, military ordinance, explosives, pyrotechnics and similar materials; unless such manufacturing or repair activity is
specifically authorized, with a substantial export component, to a non-Philippine national by the Secretary of National Defense;
or
2. which have implications on public health and morals, such as the manufacture and distribution of dangerous drugs; all forms
of gambling; nightclubs, bars, beer houses, dance halls, sauna and steam bathhouses and massage clinics. (Boldfacing,
underscoring and italicization supplied)
Section 8 of the FIA enumerates the investment areas "reserved to Philippine nationals." Foreign Investment Negative List A
consists of "areas of activities reserved to Philippine nationals by mandate of the Constitution and specific laws,"
where foreign equity participation in any enterprise shall be limited to the maximum percentage expressly prescribed
by the Constitution and other specific laws. In short, to own and operate a public utility in the Philippines one must be
a "Philippine national" as defined in the FIA. The FIA is abundant notice to foreign investors to what extent they can
invest in public utilities in the Philippines.
To repeat, among the areas of investment covered by the Foreign Investment Negative List A is the ownership and operation of
public utilities, which the Constitution expressly reserves to Filipino citizens and to corporations at least 60% owned by Filipino
citizens. In other words, Negative List A of the FIA reserves the ownership and operation of public utilities only to
"Philippine nationals," defined in Section 3(a) of the FIA as "(1) a citizen of the Philippines; x x x or (3) a corporation
organized under the laws of the Philippines of which at least sixty percent (60%) of the capital stock outstanding and
entitled to vote is owned and held by citizens of the Philippines; or (4) a corporation organized abroad and registered as
doing business in the Philippines under the Corporation Code of which one hundred percent (100%) of the capital stock
outstanding and entitled to vote is wholly owned by Filipinos or a trustee of funds for pension or other employee retirement or
separation benefits, where the trustee is a Philippine national and at least sixty percent (60%) of the fund will accrue to the
benefit of Philippine nationals."
Clearly, from the effectivity of the Investment Incentives Act of 1967 to the adoption of the Omnibus Investments Code of 1981,
to the enactment of the Omnibus Investments Code of 1987, and to the passage of the present Foreign Investments Act of 1991,
or for more than four decades, the statutory definition of the term "Philippine national" has been uniform and
consistent: it means a Filipino citizen, or a domestic corporation at least 60% of the voting stock is owned by Filipinos.
Likewise, these same statutes have uniformly and consistently required that only "Philippine nationals" could own and
operate public utilities in the Philippines. The following exchange during the Oral Arguments is revealing:
JUSTICE CARPIO:
Counsel, I have some questions. You are aware of the Foreign Investments Act of 1991, x x x? And the FIA of
1991 took effect in 1991, correct? That’s over twenty (20) years ago, correct?
COMMISSIONER GAITE:
JUSTICE CARPIO:
And Section 8 of the Foreign Investments Act of 1991 states that []only Philippine nationals can own and
operate public utilities[], correct?
COMMISSIONER GAITE:
Yes, Your Honor.
JUSTICE CARPIO:
And the same Foreign Investments Act of 1991 defines a "Philippine national" either as a citizen of the
Philippines, or if it is a corporation at least sixty percent (60%) of the voting stock is owned by citizens of the
Philippines, correct?
COMMISSIONER GAITE:
JUSTICE CARPIO:
And, you are also aware that under the predecessor law of the Foreign Investments Act of 1991, the Omnibus
Investments Act of 1987, the same provisions apply: x x x only Philippine nationals can own and operate a
public utility and the Philippine national, if it is a corporation, x x x sixty percent (60%) of the capital stock of that
corporation must be owned by citizens of the Philippines, correct?
COMMISSIONER GAITE:
JUSTICE CARPIO:
And even prior to the Omnibus Investments Act of 1987, under the Omnibus Investments Act of 1981, the same
rules apply: x x x only a Philippine national can own and operate a public utility and a Philippine national, if it is
a corporation, sixty percent (60%) of its x x x voting stock, must be owned by citizens of the Philippines,
correct?
COMMISSIONER GAITE:
JUSTICE CARPIO:
And even prior to that, under [the]1967 Investments Incentives Act and the Foreign Company Act of 1968, the
same rules applied, correct?
COMMISSIONER GAITE:
JUSTICE CARPIO:
So, for the last four (4) decades, x x x, the law has been very consistent – only a Philippine national can
own and operate a public utility, and a Philippine national, if it is a corporation, x x x at least sixty
percent (60%) of the voting stock must be owned by citizens of the Philippines, correct?
COMMISSIONER GAITE:
Correct, Your Honor.33 (Emphasis supplied)

Government agencies like the SEC cannot simply ignore Sections 3(a) and 8 of the FIA which categorically prescribe that certain
economic activities, like the ownership and operation of public utilities, are reserved to corporations "at least sixty percent (60%)
of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines." Foreign Investment
Negative List A refers to "activities reserved to Philippine nationals by mandate of the Constitution and specific laws." The FIA is
the basic statute regulating foreign investments in the Philippines. Government agencies tasked with regulating or
monitoring foreign investments, as well as counsels of foreign investors, should start with the FIA in determining to what extent a
particular foreign investment is allowed in the Philippines. Foreign investors and their counsels who ignore the FIA do so at their
own peril. Foreign investors and their counsels who rely on opinions of SEC legal officers that obviously contradict the FIA do so
also at their own peril.
Occasional opinions of SEC legal officers that obviously contradict the FIA should immediately raise a red flag. There are
already numerous opinions of SEC legal officers that cite the definition of a "Philippine national" in Section 3(a) of the FIA in
determining whether a particular corporation is qualified to own and operate a nationalized or partially nationalized business in
the Philippines. This shows that SEC legal officers are not only aware of, but also rely on and invoke, the provisions of the FIA in
ascertaining the eligibility of a corporation to engage in partially nationalized industries. The following are some of such opinions:
1. Opinion of 23 March 1993, addressed to Mr. Francis F. How;
2. Opinion of 14 April 1993, addressed to Director Angeles T. Wong of the Philippine Overseas Employment
Administration;
3. Opinion of 23 November 1993, addressed to Messrs. Dominador Almeda and Renato S. Calma;
4. Opinion of 7 December 1993, addressed to Roco Bunag Kapunan Migallos & Jardeleza;
5. SEC Opinion No. 49-04, addressed to Romulo Mabanta Buenaventura Sayoc & De Los Angeles;
6. SEC-OGC Opinion No. 17-07, addressed to Mr. Reynaldo G. David; and
7. SEC-OGC Opinion No. 03-08, addressed to Attys. Ruby Rose J. Yusi and Rudyard S. Arbolado.
The SEC legal officers’ occasional but blatant disregard of the definition of the term "Philippine national" in the FIA signifies their
lack of integrity and competence in resolving issues on the 60-40 ownership requirement in favor of Filipino citizens in Section
11, Article XII of the Constitution.
The PSE President argues that the term "Philippine national" defined in the FIA should be limited and interpreted to refer to
corporations seeking to avail of tax and fiscal incentives under investment incentives laws and cannot be equated with the term
"capital" in Section 11, Article XII of the 1987 Constitution. Pangilinan similarly contends that the FIA and its predecessor statutes
do not apply to "companies which have not registered and obtained special incentives under the schemes established by those
laws."
Both are desperately grasping at straws. The FIA does not grant tax or fiscal incentives to any enterprise. Tax and fiscal
incentives to investments are granted separately under the Omnibus Investments Code of 1987, not under the FIA. In fact, the
FIA expressly repealed Articles 44 to 56 of Book II of the Omnibus Investments Code of 1987, which articles previously
regulated foreign investments in nationalized or partially nationalized industries.
The FIA is the applicable law regulating foreign investments in nationalized or partially nationalized industries. There is nothing
in the FIA, or even in the Omnibus Investments Code of 1987 or its predecessor statutes, that states, expressly or impliedly, that
the FIA or its predecessor statutes do not apply to enterprises not availing of tax and fiscal incentives under the Code. The FIA
and its predecessor statutes apply to investments in all domestic enterprises, whether or not such enterprises enjoy tax and
fiscal incentives under the Omnibus Investments Code of 1987 or its predecessor statutes. The reason is quite obvious –
mere non-availment of tax and fiscal incentives by a non-Philippine national cannot exempt it from Section 11, Article
XII of the Constitution regulating foreign investments in public utilities. In fact, the Board of Investments’ Primer on
Investment Policies in the Philippines,34 which is given out to foreign investors, provides:
PART III. FOREIGN INVESTMENTS WITHOUT INCENTIVES
Investors who do not seek incentives and/or whose chosen activities do not qualify for incentives, (i.e., the activity is not listed in
the IPP, and they are not exporting at least 70% of their production) may go ahead and make the investments without seeking
incentives. They only have to be guided by the Foreign Investments Negative List (FINL).
The FINL clearly defines investment areas requiring at least 60% Filipino ownership. All other areas outside of this list are fully
open to foreign investors. (Emphasis supplied)
V.
Right to elect directors, coupled with beneficial ownership,
translates to effective control.
The 28 June 2011 Decision declares that the 60 percent Filipino ownership required by the Constitution to engage in certain
economic activities applies not only to voting control of the corporation, but also to the beneficial ownership of the
corporation. To repeat, we held:
Mere legal title is insufficient to meet the 60 percent Filipino-owned "capital" required in the Constitution. Full beneficial
ownership of 60 percent of the outstanding capital stock, coupled with 60 percent of the voting rights, is required. The
legal and beneficial ownership of 60 percent of the outstanding capital stock must rest in the hands of Filipino nationals in
accordance with the constitutional mandate. Otherwise, the corporation is "considered as non-Philippine national[s]." (Emphasis
supplied)
This is consistent with Section 3 of the FIA which provides that where 100% of the capital stock is held by "a trustee of funds for
pension or other employee retirement or separation benefits," the trustee is a Philippine national if "at least sixty percent (60%)
of the fund will accrue to the benefit of Philippine nationals." Likewise, Section 1(b) of the Implementing Rules of the FIA
provides that "for stocks to be deemed owned and held by Philippine citizens or Philippine nationals, mere legal title is not
enough to meet the required Filipino equity. Full beneficial ownership of the stocks, coupled with appropriate voting
rights, is essential."
Since the constitutional requirement of at least 60 percent Filipino ownership applies not only to voting control of the corporation
but also to the beneficial ownership of the corporation, it is therefore imperative that such requirement apply uniformly and
across the board to all classes of shares, regardless of nomenclature and category, comprising the capital of a corporation.
Under the Corporation Code, capital stock35 consists of all classes of shares issued to stockholders, that is, common shares as
well as preferred shares, which may have different rights, privileges or restrictions as stated in the articles of incorporation. 36
The Corporation Code allows denial of the right to vote to preferred and redeemable shares, but disallows denial of the right to
vote in specific corporate matters. Thus, common shares have the right to vote in the election of directors, while preferred
shares may be denied such right. Nonetheless, preferred shares, even if denied the right to vote in the election of directors, are
entitled to vote on the following corporate matters: (1) amendment of articles of incorporation; (2) increase and decrease of
capital stock; (3) incurring, creating or increasing bonded indebtedness; (4) sale, lease, mortgage or other disposition of
substantially all corporate assets; (5) investment of funds in another business or corporation or for a purpose other than the
primary purpose for which the corporation was organized; (6) adoption, amendment and repeal of by-laws; (7) merger and
consolidation; and (8) dissolution of corporation. 37
Since a specific class of shares may have rights and privileges or restrictions different from the rest of the shares in a
corporation, the 60-40 ownership requirement in favor of Filipino citizens in Section 11, Article XII of the Constitution must apply
not only to shares with voting rights but also to shares without voting rights. Preferred shares, denied the right to vote in the
election of directors, are anyway still entitled to vote on the eight specific corporate matters mentioned above. Thus, if a
corporation, engaged in a partially nationalized industry, issues a mixture of common and preferred non-voting shares,
at least 60 percent of the common shares and at least 60 percent of the preferred non-voting shares must be owned by
Filipinos. Of course, if a corporation issues only a single class of shares, at least 60 percent of such shares must necessarily be
owned by Filipinos. In short, the 60-40 ownership requirement in favor of Filipino citizens must apply separately to each
class of shares, whether common, preferred non-voting, preferred voting or any other class of shares. This uniform
application of the 60-40 ownership requirement in favor of Filipino citizens clearly breathes life to the constitutional command
that the ownership and operation of public utilities shall be reserved exclusively to corporations at least 60 percent of whose
capital is Filipino-owned. Applying uniformly the 60-40 ownership requirement in favor of Filipino citizens to each class of shares,
regardless of differences in voting rights, privileges and restrictions, guarantees effective Filipino control of public utilities, as
mandated by the Constitution.
Moreover, such uniform application to each class of shares insures that the "controlling interest" in public utilities always lies in
the hands of Filipino citizens. This addresses and extinguishes Pangilinan’s worry that foreigners, owning most of the non-voting
shares, will exercise greater control over fundamental corporate matters requiring two-thirds or majority vote of all shareholders.
VI.
Intent of the framers of the Constitution
While Justice Velasco quoted in his Dissenting Opinion38 a portion of the deliberations of the Constitutional Commission to
support his claim that the term "capital" refers to the total outstanding shares of stock, whether voting or non-voting, the following
excerpts of the deliberations reveal otherwise. It is clear from the following exchange that the term "capital" refers to controlling
interest of a corporation, thus:
MR. NOLLEDO. In Sections 3, 9 and 15, the Committee stated local or Filipino equity and foreign equity; namely, 60-40 in
Section 3, 60-40 in Section 9 and 2/3-1/3 in Section 15.
MR. NOLLEDO. In teaching law, we are always faced with this question: "Where do we base the equity requirement, is it on the
authorized capital stock, on the subscribed capital stock, or on the paid-up capital stock of a corporation"? Will the Committee
please enlighten me on this?
MR. VILLEGAS. We have just had a long discussion with the members of the team from the UP Law Center who provided us a
draft. The phrase that is contained here which we adopted from the UP draft is "60 percent of voting stock."
MR. NOLLEDO. That must be based on the subscribed capital stock, because unless declared delinquent, unpaid capital stock
shall be entitled to vote.
MR. NOLLEDO. Thank you.
With respect to an investment by one corporation in another corporation, say, a corporation with 60-40 percent equity invests in
another corporation which is permitted by the Corporation Code, does the Committee adopt the grandfather rule?
MR. VILLEGAS. Yes, that is the understanding of the Committee.
MR. NOLLEDO. Therefore, we need additional Filipino capital?
MR. VILLEGAS. Yes.39
xxxx
MR. AZCUNA. May I be clarified as to that portion that was accepted by the Committee.
MR. VILLEGAS. The portion accepted by the Committee is the deletion of the phrase "voting stock or controlling interest."
MR. AZCUNA. Hence, without the Davide amendment, the committee report would read: "corporations or associations at least
sixty percent of whose CAPITAL is owned by such citizens."
MR. VILLEGAS. Yes.
MR. AZCUNA. So if the Davide amendment is lost, we are stuck with 60 percent of the capital to be owned by citizens.
MR. AZCUNA. But the control can be with the foreigners even if they are the minority. Let us say 40 percent of the
capital is owned by them, but it is the voting capital, whereas, the Filipinos own the nonvoting shares. So we can have
a situation where the corporation is controlled by foreigners despite being the minority because they have the voting
capital. That is the anomaly that would result here.
MR. BENGZON. No, the reason we eliminated the word "stock" as stated in the 1973 and 1935 Constitutions is that
according to Commissioner Rodrigo, there are associations that do not have stocks. That is why we say "CAPITAL."
MR. AZCUNA. We should not eliminate the phrase "controlling interest."
MR. BENGZON. In the case of stock corporations, it is assumed. 40 (Boldfacing and underscoring supplied)
Thus, 60 percent of the "capital" assumes, or should result in, a "controlling interest" in the corporation.
The use of the term "capital" was intended to replace the word "stock" because associations without stocks can operate public
utilities as long as they meet the 60-40 ownership requirement in favor of Filipino citizens prescribed in Section 11, Article XII of
the Constitution. However, this did not change the intent of the framers of the Constitution to reserve exclusively to Philippine
nationals the "controlling interest" in public utilities.
During the drafting of the 1935 Constitution, economic protectionism was "the battle-cry of the nationalists in the
Convention."41 The same battle-cry resulted in the nationalization of the public utilities. 42 This is also the same intent of the
framers of the 1987 Constitution who adopted the exact formulation embodied in the 1935 and 1973 Constitutions on foreign
equity limitations in partially nationalized industries.
The OSG, in its own behalf and as counsel for the State, 43 agrees fully with the Court’s interpretation of the term "capital." In its
Consolidated Comment, the OSG explains that the deletion of the phrase "controlling interest" and replacement of the word
"stock" with the term "capital" were intended specifically to extend the scope of the entities qualified to operate public utilities to
include associations without stocks. The framers’ omission of the phrase "controlling interest" did not mean the inclusion of all
shares of stock, whether voting or non-voting. The OSG reiterated essentially the Court’s declaration that the Constitution
reserved exclusively to Philippine nationals the ownership and operation of public utilities consistent with the State’s policy to
"develop a self-reliant and independent national economy effectively controlled by Filipinos."
As we held in our 28 June 2011 Decision, to construe broadly the term "capital" as the total outstanding capital stock, treated as
a single class regardless of the actual classification of shares, grossly contravenes the intent and letter of the Constitution that
the "State shall develop a self-reliant and independent national economyeffectively controlled by Filipinos." We illustrated the
glaring anomaly which would result in defining the term "capital" as the total outstanding capital stock of a corporation, treated as
a single class of shares regardless of the actual classification of shares, to wit:
Let us assume that a corporation has 100 common shares owned by foreigners and 1,000,000 non-voting preferred shares
owned by Filipinos, with both classes of share having a par value of one peso (P 1.00) per share. Under the broad definition of
the term "capital," such corporation would be considered compliant with the 40 percent constitutional limit on foreign equity of
public utilities since the overwhelming majority, or more than 99.999 percent, of the total outstanding capital stock is Filipino
owned. This is obviously absurd.
In the example given, only the foreigners holding the common shares have voting rights in the election of directors, even if they
hold only 100 shares. The foreigners, with a minuscule equity of less than 0.001 percent, exercise control over the public utility.
On the other hand, the Filipinos, holding more than 99.999 percent of the equity, cannot vote in the election of directors and
hence, have no control over the public utility. This starkly circumvents the intent of the framers of the Constitution, as well as the
clear language of the Constitution, to place the control of public utilities in the hands of Filipinos. x x x
Further, even if foreigners who own more than forty percent of the voting shares elect an all-Filipino board of directors, this
situation does not guarantee Filipino control and does not in any way cure the violation of the Constitution. The independence of
the Filipino board members so elected by such foreign shareholders is highly doubtful. As the OSG pointed out, quoting Justice
George Sutherland’s words in Humphrey’s Executor v. US,44 "x x x it is quite evident that one who holds his office only during the
pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will." Allowing foreign
shareholders to elect a controlling majority of the board, even if all the directors are Filipinos, grossly circumvents the letter and
intent of the Constitution and defeats the very purpose of our nationalization laws.
VII.
Last sentence of Section 11, Article XII of the Constitution
The last sentence of Section 11, Article XII of the 1987 Constitution reads:
The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate
share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the
Philippines.
During the Oral Arguments, the OSG emphasized that there was never a question on the intent of the framers of the Constitution
to limit foreign ownership, and assure majority Filipino ownership and control of public utilities. The OSG argued, "while the
delegates disagreed as to the percentage threshold to adopt, x x x the records show they clearly understood that Filipino control
of the public utility corporation can only be and is obtained only through the election of a majority of the members of the board."
Indeed, the only point of contention during the deliberations of the Constitutional Commission on 23 August 1986 was the extent
of majority Filipino control of public utilities. This is evident from the following exchange:
THE PRESIDENT. Commissioner Jamir is recognized.

MR. JAMIR. Madam President, my proposed amendment on lines 20 and 21 is to delete the phrase "two thirds of whose voting
stock or controlling interest," and instead substitute the words "SIXTY PERCENT OF WHOSE CAPITAL" so that the sentence
will read: "No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except
to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least SIXTY
PERCENT OF WHOSE CAPITAL is owned by such citizens."
xxxx
THE PRESIDENT: Will Commissioner Jamir first explain?
MR. JAMIR. Yes, in this Article on National Economy and Patrimony, there were two previous sections in which we fixed the
Filipino equity to 60 percent as against 40 percent for foreigners. It is only in this Section 15 with respect to public utilities that
the committee proposal was increased to two-thirds. I think it would be better to harmonize this provision by providing that even
in the case of public utilities, the minimum equity for Filipino citizens should be 60 percent.
MR. ROMULO. Madam President.
THE PRESIDENT. Commissioner Romulo is recognized.
MR. ROMULO. My reason for supporting the amendment is based on the discussions I have had with representatives of the
Filipino majority owners of the international record carriers, and the subsequent memoranda they submitted to me. x x x
Their second point is that under the Corporation Code, the management and control of a corporation is vested in the board of
directors, not in the officers but in the board of directors. The officers are only agents of the board. And they believe that with 60
percent of the equity, the Filipino majority stockholders undeniably control the board. Only on important corporate acts can the
40-percent foreign equity exercise a veto, x x x.
x x x x45
MS. ROSARIO BRAID. Madam President.
THE PRESIDENT. Commissioner Rosario Braid is recognized.
MS. ROSARIO BRAID. Yes, in the interest of equal time, may I also read from a memorandum by the spokesman of the
Philippine Chamber of Communications on why they would like to maintain the present equity, I am referring to the 66 2/3. They
would prefer to have a 75-25 ratio but would settle for 66 2/3. x x x
xxxx
THE PRESIDENT. Just to clarify, would Commissioner Rosario Braid support the proposal of two-thirds rather than the 60
percent?
MS. ROSARIO BRAID. I have added a clause that will put management in the hands of Filipino citizens.
x x x x46
While they had differing views on the percentage of Filipino ownership of capital, it is clear that the framers of the Constitution
intended public utilities to be majority Filipino-owned and controlled. To ensure that Filipinos control public utilities, the framers
of the Constitution approved, as additional safeguard, the inclusion of the last sentence of Section 11, Article XII of the
Constitution commanding that "[t]he participation of foreign investors in the governing body of any public utility enterprise shall
be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or
association must be citizens of the Philippines." In other words, the last sentence of Section 11, Article XII of the Constitution
mandates that (1) the participation of foreign investors in the governing body of the corporation or association shall be limited to
their proportionate share in the capital of such entity; and (2) all officers of the corporation or association must be Filipino
citizens.
Commissioner Rosario Braid proposed the inclusion of the phrase requiring the managing officers of the corporation or
association to be Filipino citizens specifically to prevent management contracts, which were designed primarily to circumvent the
Filipinization of public utilities, and to assure Filipino control of public utilities, thus:
MS. ROSARIO BRAID. x x x They also like to suggest that we amend this provision by adding a phrase which states: "THE
MANAGEMENT BODY OF EVERY CORPORATION OR ASSOCIATION SHALL IN ALL CASES BE CONTROLLED BY
CITIZENS OF THE PHILIPPINES." I have with me their position paper.
THE PRESIDENT. The Commissioner may proceed.
MS. ROSARIO BRAID. The three major international record carriers in the Philippines, which Commissioner Romulo mentioned
– Philippine Global Communications, Eastern Telecommunications, Globe Mackay Cable – are 40-percent owned by foreign
multinational companies and 60-percent owned by their respective Filipino partners. All three, however, also have management
contracts with these foreign companies – Philcom with RCA, ETPI with Cable and Wireless PLC, and GMCR with ITT. Up to the
present time, the general managers of these carriers are foreigners. While the foreigners in these common carriers are only
minority owners, the foreign multinationals are the ones managing and controlling their operations by virtue of their management
contracts and by virtue of their strength in the governing bodies of these carriers. 47
xxxx
MR. OPLE. I think a number of us have agreed to ask Commissioner Rosario Braid to propose an amendment with respect to
the operating management of public utilities, and in this amendment, we are associated with Fr. Bernas, Commissioners Nieva
and Rodrigo. Commissioner Rosario Braid will state this amendment now.
Thank you.
MS. ROSARIO BRAID. Madam President.
THE PRESIDENT. This is still on Section 15.
MS. ROSARIO BRAID. Yes.
MR. VILLEGAS. Yes, Madam President.
xxxx
MS. ROSARIO BRAID. Madam President, I propose a new section to read: ‘THE MANAGEMENT BODY OF EVERY
CORPORATION OR ASSOCIATION SHALL IN ALL CASES BE CONTROLLED BY CITIZENS OF THE PHILIPPINES."
This will prevent management contracts and assure control by Filipino citizens. Will the committee assure us that this
amendment will insure that past activities such as management contracts will no longer be possible under this amendment?
xxxx
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. Will the committee accept a reformulation of the first part?
MR. BENGZON. Let us hear it.
FR. BERNAS. The reformulation will be essentially the formula of the 1973 Constitution which reads: "THE PARTICIPATION OF
FOREIGN INVESTORS IN THE GOVERNING BODY OF ANY PUBLIC UTILITY ENTERPRISE SHALL BE LIMITED TO THEIR
PROPORTIONATE SHARE IN THE CAPITAL THEREOF AND..."
MR. VILLEGAS. "ALL THE EXECUTIVE AND MANAGING OFFICERS OF SUCH CORPORATIONS AND ASSOCIATIONS
MUST BE CITIZENS OF THE PHILIPPINES."
MR. BENGZON. Will Commissioner Bernas read the whole thing again?
FR. BERNAS. "THE PARTICIPATION OF FOREIGN INVESTORS IN THE GOVERNING BODY OF ANY PUBLIC UTILITY
ENTERPRISE SHALL BE LIMITED TO THEIR PROPORTIONATE SHARE IN THE CAPITAL THEREOF..." I do not have the rest
of the copy.
MR. BENGZON. "AND ALL THE EXECUTIVE AND MANAGING OFFICERS OF SUCH CORPORATIONS OR ASSOCIATIONS
MUST BE CITIZENS OF THE PHILIPPINES." Is that correct?
MR. VILLEGAS. Yes.
MR. BENGZON. Madam President, I think that was said in a more elegant language. We accept the amendment. Is that all right
with Commissioner Rosario Braid?
MS. ROSARIO BRAID. Yes.
xxxx
MR. DE LOS REYES. The governing body refers to the board of directors and trustees.
MR. BENGZON. Yes, the governing body refers to the board of directors.
MR. REGALADO. It is accepted.
MR. RAMA. The body is now ready to vote, Madam President.
VOTING
xxxx
The results show 29 votes in favor and none against; so the proposed amendment is approved.
xxxx
THE PRESIDENT. All right. Can we proceed now to vote on Section 15?
MR. RAMA. Yes, Madam President.
THE PRESIDENT. Will the chairman of the committee please read Section 15?
MR. VILLEGAS. The entire Section 15, as amended, reads: "No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized
under the laws of the Philippines at least 60 PERCENT OF WHOSE CAPITAL is owned by such citizens." May I request
Commissioner Bengzon to please continue reading.
MR. BENGZON. "THE PARTICIPATION OF FOREIGN INVESTORS IN THE GOVERNING BODY OF ANY PUBLIC UTILITY
ENTERPRISE SHALL BE LIMITED TO THEIR PROPORTIONATE SHARE IN THE CAPITAL THEREOF AND ALL THE
EXECUTIVE AND MANAGING OFFICERS OF SUCH CORPORATIONS OR ASSOCIATIONS MUST BE CITIZENS OF THE
PHILIPPINES."
MR. VILLEGAS. "NOR SHALL SUCH FRANCHISE, CERTIFICATE OR AUTHORIZATION BE EXCLUSIVE IN CHARACTER OR
FOR A PERIOD LONGER THAN TWENTY-FIVE YEARS RENEWABLE FOR NOT MORE THAN TWENTY-FIVE YEARS.
Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration,
or repeal by Congress when the common good so requires. The State shall encourage equity participation in public utilities by
the general public."
VOTING
xxxx
The results show 29 votes in favor and 4 against; Section 15, as amended, is approved. 48 (Emphasis supplied)
The last sentence of Section 11, Article XII of the 1987 Constitution, particularly the provision on the limited participation of
foreign investors in the governing body of public utilities, is a reiteration of the last sentence of Section 5, Article XIV of the 1973
Constitution,49 signifying its importance in reserving ownership and control of public utilities to Filipino citizens.
VIII.
The undisputed facts
There is no dispute, and respondents do not claim the contrary, that (1) foreigners own 64.27% of the common shares of PLDT,
which class of shares exercises the sole right to vote in the election of directors, and thus foreigners control PLDT; (2) Filipinos
own only 35.73% of PLDT’s common shares, constituting a minority of the voting stock, and thus Filipinos do not control PLDT;
(3) preferred shares, 99.44% owned by Filipinos, have no voting rights; (4) preferred shares earn only 1/70 of the dividends that
common shares earn;50 (5) preferred shares have twice the par value of common shares; and (6) preferred shares constitute
77.85% of the authorized capital stock of PLDT and common shares only 22.15%.
Despite the foregoing facts, the Court did not decide, and in fact refrained from ruling on the question of whether PLDT violated
the 60-40 ownership requirement in favor of Filipino citizens in Section 11, Article XII of the 1987 Constitution. Such question
indisputably calls for a presentation and determination of evidence through a hearing, which is generally outside the province of
the Court’s jurisdiction, but well within the SEC’s statutory powers. Thus, for obvious reasons, the Court limited its decision on
the purely legal and threshold issue on the definition of the term "capital" in Section 11, Article XII of the Constitution and
directed the SEC to apply such definition in determining the exact percentage of foreign ownership in PLDT.
IX.
PLDT is not an indispensable party;
SEC is impleaded in this case.
In his petition, Gamboa prays, among others:
xxxx
5. For the Honorable Court to issue a declaratory relief that ownership of common or voting shares is the sole basis in
determining foreign equity in a public utility and that any other government rulings, opinions, and regulations inconsistent with
this declaratory relief be declared unconstitutional and a violation of the intent and spirit of the 1987 Constitution;
6. For the Honorable Court to declare null and void all sales of common stocks to foreigners in excess of 40 percent of the total
subscribed common shareholdings; and
7. For the Honorable Court to direct the Securities and Exchange Commission and Philippine Stock Exchange to require
PLDT to make a public disclosure of all of its foreign shareholdings and their actual and real beneficial owners.
Other relief(s) just and equitable are likewise prayed for. (Emphasis supplied)
As can be gleaned from his prayer, Gamboa clearly asks this Court to compel the SEC to perform its statutory duty to investigate
whether "the required percentage of ownership of the capital stock to be owned by citizens of the Philippines has been complied
with [by PLDT] as required by x x x the Constitution." 51 Such plea clearly negates SEC’s argument that it was not impleaded.
Granting that only the SEC Chairman was impleaded in this case, the Court has ample powers to order the SEC’s compliance
with its directive contained in the 28 June 2011 Decision in view of the far-reaching implications of this case. In Domingo v.
Scheer,52 the Court dispensed with the amendment of the pleadings to implead the Bureau of Customs considering (1) the
unique backdrop of the case; (2) the utmost need to avoid further delays; and (3) the issue of public interest involved. The Court
held:
The Court may be curing the defect in this case by adding the BOC as party-petitioner. The petition should not be dismissed
because the second action would only be a repetition of the first. InSalvador, et al., v. Court of Appeals, et al., we held that this
Court has full powers, apart from that power and authority which is inherent, to amend the processes, pleadings, proceedings
and decisions by substituting as party-plaintiff the real party-in-interest. The Court has the power to avoid delay in the
disposition of this case, to order its amendment as to implead the BOC as party-respondent. Indeed, it may no longer
be necessary to do so taking into account the unique backdrop in this case, involving as it does an issue of public
interest. After all, the Office of the Solicitor General has represented the petitioner in the instant proceedings, as well as in the
appellate court, and maintained the validity of the deportation order and of the BOC’s Omnibus Resolution. It cannot, thus, be
claimed by the State that the BOC was not afforded its day in court, simply because only the petitioner, the Chairperson of the
BOC, was the respondent in the CA, and the petitioner in the instant recourse. In Alonso v. Villamor, we had the occasion to
state:
There is nothing sacred about processes or pleadings, their forms or contents. Their sole purpose is to facilitate the
application of justice to the rival claims of contending parties. They were created, not to hinder and delay, but to facilitate
and promote, the administration of justice. They do not constitute the thing itself, which courts are always striving to secure to
litigants. They are designed as the means best adapted to obtain that thing. In other words, they are a means to an end. When
they lose the character of the one and become the other, the administration of justice is at fault and courts are correspondingly
remiss in the performance of their obvious duty. 53(Emphasis supplied)
In any event, the SEC has expressly manifested54 that it will abide by the Court’s decision and defer to the Court’s
definition of the term "capital" in Section 11, Article XII of the Constitution. Further, the SEC entered its special
appearance in this case and argued during the Oral Arguments, indicating its submission to the Court’s jurisdiction. It
is clear, therefore, that there exists no legal impediment against the proper and immediate implementation of the
Court’s directive to the SEC.
PLDT is an indispensable party only insofar as the other issues, particularly the factual questions, are concerned. In other
words, PLDT must be impleaded in order to fully resolve the issues on (1) whether the sale of 111,415 PTIC shares to First
Pacific violates the constitutional limit on foreign ownership of PLDT; (2) whether the sale of common shares to foreigners
exceeded the 40 percent limit on foreign equity in PLDT; and (3) whether the total percentage of the PLDT common shares with
voting rights complies with the 60-40 ownership requirement in favor of Filipino citizens under the Constitution for the ownership
and operation of PLDT. These issues indisputably call for an examination of the parties’ respective evidence, and thus are
clearly within the jurisdiction of the SEC. In short, PLDT must be impleaded, and must necessarily be heard, in the proceedings
before the SEC where the factual issues will be thoroughly threshed out and resolved.
Notably, the foregoing issues were left untouched by the Court. The Court did not rule on the factual issues raised by
Gamboa, except the single and purely legal issue on the definition of the term "capital" in Section 11, Article XII of the
Constitution. The Court confined the resolution of the instant case to this threshold legal issue in deference to the fact-finding
power of the SEC.
Needless to state, the Court can validly, properly, and fully dispose of the fundamental legal issue in this case even without the
participation of PLDT since defining the term "capital" in Section 11, Article XII of the Constitution does not, in any way, depend
on whether PLDT was impleaded. Simply put, PLDT is not indispensable for a complete resolution of the purely legal question in
this case.55 In fact, the Court, by treating the petition as one for mandamus,56 merely directed the SEC to apply the Court’s
definition of the term "capital" in Section 11, Article XII of the Constitution in determining whether PLDT committed any violation
of the said constitutional provision. The dispositive portion of the Court’s ruling is addressed not to PLDT but solely to the
SEC, which is the administrative agency tasked to enforce the 60-40 ownership requirement in favor of Filipino citizens
in Section 11, Article XII of the Constitution.
Since the Court limited its resolution on the purely legal issue on the definition of the term "capital" in Section 11, Article XII of the
1987 Constitution, and directed the SEC to investigate any violation by PLDT of the 60-40 ownership requirement in favor of
Filipino citizens under the Constitution,57 there is no deprivation of PLDT’s property or denial of PLDT’s right to due process,
contrary to Pangilinan and Nazareno’s misimpression. Due process will be afforded to PLDT when it presents proof to the SEC
that it complies, as it claims here, with Section 11, Article XII of the Constitution.
X.
Foreign Investments in the Philippines
Movants fear that the 28 June 2011 Decision would spell disaster to our economy, as it may result in a sudden flight of existing
foreign investors to "friendlier" countries and simultaneously deterring new foreign investors to our country. In particular, the PSE
claims that the 28 June 2011 Decision may result in the following: (1) loss of more than P 630 billion in foreign investments in
PSE-listed shares; (2) massive decrease in foreign trading transactions; (3) lower PSE Composite Index; and (4) local investors
not investing in PSE-listed shares.58
Dr. Bernardo M. Villegas, one of the amici curiae in the Oral Arguments, shared movants’ apprehension. Without providing
specific details, he pointed out the depressing state of the Philippine economy compared to our neighboring countries which
boast of growing economies. Further, Dr. Villegas explained that the solution to our economic woes is for the government to
"take-over" strategic industries, such as the public utilities sector, thus:
JUSTICE CARPIO:
I would like also to get from you Dr. Villegas if you have additional information on whether this high FDI 59 countries in East Asia
have allowed foreigners x x x control [of] their public utilities, so that we can compare apples with apples.
DR. VILLEGAS:
Correct, but let me just make a comment. When these neighbors of ours find an industry strategic, their solution is not to
"Filipinize" or "Vietnamize" or "Singaporize." Their solution is to make sure that those industries are in the hands of state
enterprises. So, in these countries, nationalization means the government takes over. And because their governments
are competent and honest enough to the public, that is the solution. x x x 60 (Emphasis supplied)
If government ownership of public utilities is the solution, then foreign investments in our public utilities serve no purpose.
Obviously, there can never be foreign investments in public utilities if, as Dr. Villegas claims, the "solution is to make sure that
those industries are in the hands of state enterprises." Dr. Villegas’s argument that foreign investments in telecommunication
companies like PLDT are badly needed to save our ailing economy contradicts his own theory that the solution is for government
to take over these companies. Dr. Villegas is barking up the wrong tree since State ownership of public utilities and foreign
investments in such industries are diametrically opposed concepts, which cannot possibly be reconciled.
In any event, the experience of our neighboring countries cannot be used as argument to decide the present case differently for
two reasons. First, the governments of our neighboring countries have, as claimed by Dr. Villegas, taken over ownership and
control of their strategic public utilities like the telecommunications industry. Second, our Constitution has specific provisions
limiting foreign ownership in public utilities which the Court is sworn to uphold regardless of the experience of our neighboring
countries.
In our jurisdiction, the Constitution expressly reserves the ownership and operation of public utilities to Filipino citizens, or
corporations or associations at least 60 percent of whose capital belongs to Filipinos. Following Dr. Villegas’s claim, the
Philippines appears to be more liberal in allowing foreign investors to own 40 percent of public utilities, unlike in other Asian
countries whose governments own and operate such industries.
XI.
Prospective Application of Sanctions
In its Motion for Partial Reconsideration, the SEC sought to clarify the reckoning period of the application and imposition of
appropriate sanctions against PLDT if found violating Section 11, Article XII of the Constitution. 1avvphi1
As discussed, the Court has directed the SEC to investigate and determine whether PLDT violated Section 11, Article XII of the
Constitution. Thus, there is no dispute that it is only after the SEC has determined PLDT’s violation, if any exists at the time of
the commencement of the administrative case or investigation, that the SEC may impose the statutory sanctions against PLDT.
In other words, once the 28 June 2011 Decision becomes final, the SEC shall impose the appropriate sanctions only if it finds
after due hearing that, at the start of the administrative case or investigation, there is an existing violation of Section 11, Article
XII of the Constitution. Under prevailing jurisprudence, public utilities that fail to comply with the nationality requirement under
Section 11, Article XII and the FIA can cure their deficiencies prior to the start of the administrative case or investigation. 61
XII.
Final Word
The Constitution expressly declares as State policy the development of an economy "effectively controlled" by Filipinos.
Consistent with such State policy, the Constitution explicitly reserves the ownership and operation of public utilities to Philippine
nationals, who are defined in the Foreign Investments Act of 1991 as Filipino citizens, or corporations or associations at least 60
percent of whose capital with voting rights belongs to Filipinos. The FIA’s implementing rules explain that "[f]or stocks to be
deemed owned and held by Philippine citizens or Philippine nationals, mere legal title is not enough to meet the required Filipino
equity. Full beneficial ownership of the stocks, coupled with appropriate voting rights is essential." In effect, the FIA
clarifies, reiterates and confirms the interpretation that the term "capital" in Section 11, Article XII of the 1987 Constitution refers
toshares with voting rights, as well as with full beneficial ownership. This is precisely because the right to vote in the
election of directors, coupled with full beneficial ownership of stocks, translates to effective control of a corporation.
Any other construction of the term "capital" in Section 11, Article XII of the Constitution contravenes the letter and intent of the
Constitution. Any other meaning of the term "capital" openly invites alien domination of economic activities reserved exclusively
to Philippine nationals. Therefore, respondents’ interpretation will ultimately result in handing over effective control of our
national economy to foreigners in patent violation of the Constitution, making Filipinos second-class citizens in their own country.
Filipinos have only to remind themselves of how this country was exploited under the Parity Amendment, which gave Americans
the same rights as Filipinos in the exploitation of natural resources, and in the ownership and control of public utilities, in the
Philippines. To do this the 1935 Constitution, which contained the same 60 percent Filipino ownership and control requirement
as the present 1987 Constitution, had to be amended to give Americans parity rights with Filipinos. There was bitter opposition
to the Parity Amendment62 and many Filipinos eagerly awaited its expiration. In late 1968, PLDT was one of the American-
controlled public utilities that became Filipino-controlled when the controlling American stockholders divested in anticipation of
the expiration of the Parity Amendment on 3 July 1974.63 No economic suicide happened when control of public utilities and
mining corporations passed to Filipinos’ hands upon expiration of the Parity Amendment.
Movants’ interpretation of the term "capital" would bring us back to the same evils spawned by the Parity
Amendment, effectively giving foreigners parity rights with Filipinos, but this time even without any amendment to the
present Constitution. Worse, movants’ interpretation opens up our national economy toeffective control not only by
Americans but also by all foreigners, be they Indonesians, Malaysians or Chinese, even in the absence of reciprocal
treaty arrangements. At least the Parity Amendment, as implemented by the Laurel-Langley Agreement, gave the capital-
starved Filipinos theoretical parity – the same rights as Americans to exploit natural resources, and to own and control public
utilities, in the United States of America. Here, movants’ interpretation would effectively mean a unilateral opening up of our
national economy to all foreigners, without any reciprocal arrangements. That would mean that Indonesians, Malaysians and
Chinese nationals could effectively control our mining companies and public utilities while Filipinos, even if they have the capital,
could not control similar corporations in these countries.
The 1935, 1973 and 1987 Constitutions have the same 60 percent Filipino ownership and control requirement for public utilities
like PLOT. Any deviation from this requirement necessitates an amendment to the Constitution as exemplified by the Parity
Amendment. This Court has no power to amend the Constitution for its power and duty is only to faithfully apply and interpret the
Constitution.
WHEREFORE, we DENY the motions for reconsideration WITH FINALITY. No further pleadings shall be entertained.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
MARIA LOURDES P.A. SERENO

Chief Justice
PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

ARTURO D. BRION DIOSDADO M. PERALTA

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

JOSE PORTUGAL PEREZ JOSE C. MENDOZA

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.MARIA LOURDES P.A. SERENO
Chief Justice

SUPREME COURT
Manila
EN BANC
G.R. No. 120265 September 18, 1995
AGAPITO A. AQUINO, petitioner,

vs.
COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON and JUANITO ICARO, respondents.
KAPUNAN, J.:
The sanctity of the people's will must be observed at all times if our nascent democracy is to be preserved. In any challenge
having the effect of reversing a democratic choice, expressed through the ballot, this Court should be ever so vigilant in finding
solutions which would give effect to the will of the majority, for sound public policy dictates that all elective offices are filled by
those who have received the highest number of votes cast in an election. When a challenge to a winning candidate's
qualifications however becomes inevitable, the ineligibility ought to be so noxious to the Constitution that giving effect to the
apparent will of the people would ultimately do harm to our democratic institutions.
On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate of Candidacy for the position of Representative for the new
Second Legislative District of Makati City. Among others, Aquino provided the following information in his certificate of
candidacy, viz:.
(7) RESIDENCE (Complete Address): 284 AMAPOLA COR. ADALLA STS., PALM VILLAGE, MAKATI.
xxx xxx xxx
(8) RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING

THE ELECTION: ______ Years and 10 Months.
xxx xxx xxx
THAT I AM ELIGIBLE for said Office; That I will support and defend the Constitution of the Republic of the
Philippines and will maintain true faith and allegiance thereto; That I will obey the law, rules and decrees
promulgated by the duly constituted authorities; That the obligation imposed to such is assumed voluntarily,
without mental reservation or purpose of evasion, and that the facts therein are true to the best of my
knowledge. 1
On April 24, 1995, Move Makati, a duly registered political party, and Mateo Bedon, Chairman of the LAKAS-NUCD-UMDP of
Barangay Cembo, Makati City, filed a petition to disqualify Agapito A. Aquino 2 on the ground that the latter lacked the
residence qualification as a candidate for congressman which, under Section 6, Art. VI of the 1987 the Constitution,
should be for a period not less than one (1) year immediately preceding the May 8, 1995 elections. The petition was
docketed as SPA No. 95-113 and was assigned to the Second Division of the Commission on Elections (COMELEC).
On April 25, 1995, a day after said petition for disqualification was filed, petitioner filed another certificate of candidacy amending
the certificate dated March 20, 1995. This time, petitioner stated in Item 8 of his certificate that he had resided in the
constituency where he sought to be elected for one (l) year and thirteen (13) days. 3
On May 2, 1995, petitioner filed his Answer dated April 29, 1995 praying for the dismissal of the disqualification case. 4
On the same day, May 2, 1995, a hearing was conducted by the COMELEC wherein petitioner testified and presented in
evidence, among others, his Affidavit dated May 2, 1995, 5 lease contract between petitioner and Leonor Feliciano dated April
1, 1994, 6 Affidavit of Leonor Feliciano dated April 28,1995 7 and Affidavit of Daniel Galamay dated April 28, 1995. 8
After hearing of the petition for disqualification, the Second Division of the COMELEC promulgated a Resolution dated May 6,
1995, the decretal portion of which reads:
WHEREFORE, in view of the foregoing, this Commission (Second Division) RESOLVES to DISMISS the
instant: petition for Disqualification against respondent AGAPITO AQUINO and declares him ELIGIBLE to run
for the Office of Representative in the Second Legislative District of Makati City.
SO ORDERED. 9
On May 7, 1995, Move Makati and Mateo Bedon filed a Motion for Reconsideration of the May 6, 1995 resolution with the
COMELEC en banc.
Meanwhile, on May 8, 1995, elections were held. In Makati City where three (3) candidates vied for the congressional seat in the
Second District, petitioner garnered thirty eight thousand five hundred forty seven (38,547) votes as against another candidate,
Agusto Syjuco, who obtained thirty five thousand nine hundred ten (35,910) votes. 10
On May 10, 1995, private respondents Move Makati and Bedon filed an Urgent Motion Ad Cautelum to Suspend Proclamation of
petitioner. Thereafter, they filed an Omnibus Motion for Reconsideration of the COMELEC's Second Division resolution dated
May 6, 1995 and a 2nd Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner.
On May 15, 1995, COMELEC en banc issued an Order suspending petitioner's proclamation. The dispositive portion of the order
reads:
WHEREFORE, pursuant to the provisions of Section 6 of Republic Act No. 6646, the Board of Canvassers of
the City of Makati is hereby directed to complete the canvassing of election returns of the Second District of
Makati, but to suspend the proclamation of respondent Agapito A. Aquino should he obtain the winning number
of votes for the position of Representative of the Second District of the City of Makati, until the motion for
reconsideration filed by the petitioners on May 7, 1995, shall have been resolved by the Commission.
The Executive Director, this Commission, is directed to cause the immediate implementation of this Order. The
Clerk of Court of the Commission is likewise directed to inform the parties by the fastest means available of this
Order, and to calendar the hearing of the Motion for Reconsideration on May 17, 1995, at 10:00 in the morning,
PICC Press Center, Pasay City.
SO ORDERED. 11
On May 16, 1995, petitioner filed his Comment/Opposition with urgent motion to lift order of suspension of proclamation.
On June 1, 1995, petitioner filed a "Motion to File Supplemental Memorandum and Motion to Resolve Urgent Motion to Resolve
Motion to Lift Suspension of Proclamation" wherein he manifested his intention to raise, among others, the issue of whether of
not the determination of the qualifications of petitioner after the elections is lodged exclusively in the House of Representatives
Electoral Tribunal pursuant to Section 17, Article VI of the 1987 Constitution.
Resolving petitioner's motion to lift suspension of his proclamation, the COMELEC en banc issued an Order on June 2, 1995,
the decretal portion thereof residing:
Pursuant to the said provisions and considering the attendant circumstances of the case, the Commission
RESOLVED to proceed with the promulgation but to suspend its rules, to accept the filing of the aforesaid
motion, and to allow the parties to be heard thereon because the issue of jurisdiction now before the
Commission has to be studied with more reflection and judiciousness. 12
On the same day, June 2, 1995, the COMELEC en banc issued a Resolution reversing the resolution of the Second Division
dated May 6, 1995. The fallo reads as follows:
WHEREFORE, in view of the foregoing, petitioners' Motion for Reconsideration of the Resolution of the Second
Division, promulgated on May 6, 1995, is GRANTED. Respondent Agapito A. Aquino is declared ineligible and
thus disqualified as a candidate for the Office of Representative of the Second Legislative District of Makati City
in the May 8, 1995 elections, for lack of the constitutional qualification of residence. Consequently, the order of
suspension of proclamation of the respondent should he obtain the winning number of votes, issued by this
Commission on May 15, 1995 is now made permanent.
Upon the finality of this Resolution, the Board of Canvassers of the City of Makati shall immediately reconvene
and, on the basis of the completed canvass of election returns, determine the winner out of the remaining
qualified candidates, who shall be immediately be proclaimed.
SO ORDERED. 13
Hence, the instant Petition for Certiorari 14 assailing the orders dated May 15, 1995 and June 2, 1995, as well as the
resolution dated June 2, 1995 issued by the COMELEC en banc. Petitioner's raises the following errors for consideration,
to wit:
A
THE COMELEC HAS NO JURISDICTION TO DETERMINE AND ADJUDGE THE DISQUALIFICATION ISSUE
INVOLVING CONGRESSIONAL CANDIDATES AFTER THE MAY 8, 1995 ELECTIONS, SUCH
DETERMINATION BEING RESERVED TO AND LODGE EXCLUSIVELY WITH THE HOUSE OF
REPRESENTATIVE ELECTORAL TRIBUNAL
ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, SAID JURISDICTION CEASED IN
THE INSTANT CASE AFTER THE ELECTIONS, AND THE REMEDY/IES AVAILABLE TO THE ADVERSE
PARTIES LIE/S IN ANOTHER FORUM WHICH, IT IS SUBMITTED, IS THE HRET CONSISTENT WITH
SECTION 17, ARTICLE VI OF THE 1987 CONSTITUTION
THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT PROCEEDED TO PROMULGATE

ITS QUESTIONED DECISION (ANNEX "C", PETITION) DESPITE IT OWN RECOGNITION THAT A
THRESHOLD ISSUE OF JURISDICTION HAS TO BE JUDICIOUSLY REVIEWED AGAIN,
ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, THE COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION, AND SERIOUS ERROR IN DIRECTING WITHOUT NOTICE THE SUSPENSION
OF THE PROCLAMATION OF THE PETITIONER AS THE WINNING CONGRESSIONAL CANDIDATE AND
DESPITE THE MINISTERIAL NATURE OF SUCH DUTY TO PROCLAIM (PENDING THE FINALITY OF THE
DISQUALIFICATION CASE AGAINST THE PETITIONER) IF ONLY NOT TO THWART THE PEOPLE'S WILL.
THE COMELEC'S FINDING OF NON-COMPLIANCE WITH THE RESIDENCY REQUIREMENT OF ONE

YEAR AGAINST THE PETITIONER IS CONTRARY TO EVIDENCE AND TO APPLICABLE LAWS AND
JURISPRUDENCE.
IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL
IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL
CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY EXISTING FOR LESS
THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR MONTHS IN THE CASE OF
PETITIONER'S DISTRICT IN MAKATI OF CONGRESSIONAL.
THE COMELEC COMMITTED SERIOUS ERROR AMOUNTING TO LACK OF JURISDICTION WHEN IT

ORDERED THE BOARD OF CANVASSERS TO "DETERMINE AND PROCLAIM THE WINNER OUT OF THE
REMAINING QUALIFIED CANDIDATES" AFTER THE ERRONEOUS DISQUALIFICATION OF YOUR
PETITIONER IN THAT SUCH DIRECTIVE IS IN TOTAL DISREGARD OF THE WELL SETTLED DOCTRINE
THAT A SECOND PLACE CANDIDATE OR PERSON WHO WAS REPUDIATED BY THE ELECTORATE IS A
LOSER AND CANNOT BE PROCLAIMED AS SUBSTITUTE
WINNER. 15
In his first three assignments of error, petitioner vigorously contends that after the May 8, 1995 elections, the COMELEC lost its
jurisdiction over the question of petitioner's qualifications to run for member of the House of Representatives. He claims that
jurisdiction over the petition for disqualification is exclusively lodged with the House of Representatives Electoral Tribunal
(HRET). Given the yet unresolved question of jurisdiction, petitioner avers that the COMELEC committed serious error and
grave abuse of discretion in directing the suspension of his proclamation as the winning candidate in the Second Congressional
District of Makati City. We disagree.
Petitioner conveniently confuses the distinction between an unproclaimed candidate to the House of Representatives and a
member of the same. Obtaining the highest number of votes in an election does not automatically vest the position in the
winning candidate. Section 17 of Article VI of the 1987 Constitution reads:
The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of
all contests relating to the election, returns and qualifications of their respective Members.
Under the above-stated provision, the electoral tribunal clearly assumes jurisdiction over all contests relative to the election,
returns and qualifications of candidates for either the Senate or the House only when the latter become members of either the
Senate or the House of Representatives. A candidate who has not been proclaimed 16 and who has not taken his oath of office
cannot be said to be a member of the House of Representatives subject to Section. 17 of the Constitution. While the
proclamation of a winning candidate in an election is ministerial, B.P. 881 in conjunction with Sec 6 of R.A. 6646 allows
suspension of proclamation under circumstances mentioned therein. Thus, petitioner's contention that "after the conduct
of the election and (petitioner) has been established the winner of the electoral exercise from the moment of election, the
COMELEC is automatically divested of authority to pass upon the question of qualification" finds no basis, because
even after the elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to
hear and decide questions relating to qualifications of candidates Section 6 states:
Sec. 6. Effect of Disqualification Case. — Any candidate, who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of
the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.
Under the above-quoted provision, not only is a disqualification case against a candidate allowed to continue after the election
(and does not oust the COMELEC of its jurisdiction), but his obtaining the highest number of votes will not result in the
suspension or termination of the proceedings against him when the evidence of guilt is strong. While the phrase "when the
evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases
under Section 68 of the Omnibus Election Code, Section 7 of R.A. 6646 allows the application of the provisions of Section 6 to
cases involving disqualification based on ineligibility under Section 78 of B.P. 881. Section 7 states:
Sec. 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy. — The procedure hereinabove
provided shall apply to petition to deny due course to or cancel a certificate of candidacy based on Sec. 78
of Batas Pambansa 881.
II
We agree with COMELEC's contention that in order that petitioner could qualify as a candidate for Representative of the Second
District of Makati City the latter "must prove that he has established not just residence but domicileof choice. 17
The Constitution requires that a person seeking election to the House of Representatives should be a resident of the district in
which he seeks election for a period of not less than one (l) year prior to the elections. 18 Residence, for election law purposes,
has a settled meaning in our jurisdiction.
this Court held that the term "residence" has always been
In Co v. Electoral Tribunal of the House of Representatives
19
understood as synonymous with "domicile" not only under the previous Constitutions but also under the 1987 Constitution.
The Court there held: 20
The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the
qualifications of a candidate for Congress continues to remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention,
there was an attempt to require residence in the place not less than one year immediately
preceding the day of elections. So my question is: What is the Committee's concept of
domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the National Assembly are
concerned, the proposed section merely provides, among others, and a resident thereof', that
is, in the district, for a period of not less than one year preceding the day of the election. This
was in effect lifted from the 1973 Constitution, the interpretation given to it was
domicile (emphasis ours) Records of the 1987 Constitutional Convention, Vol. II, July 22,
1986, p. 87).
xxx xxx xxx

Mrs. Rosario Braid: The next question is on section 7, page 2. I think Commissioner Nolledo
has raised the same point that "resident" has been interpreted at times as a matter of intention
rather than actual residence.
Mr. De Los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to
actual residence rather than mere intention to reside?
Mr. De los Reyes: But We might encounter some difficulty especially considering that the
provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may
vote as enacted by law. So, we have to stick to the original concept that it should be by
domicile and not physical and actual residence. (Records of the 1987 Constitutional
Commission, Vol. II, July 22, 1986, p. 110).
The framers of the Constitution adhered to the earlier definition given to the word "residence" which regarded it
as having the same meaning as domicile.
Clearly, the place "where a party actually or constructively has his permanent home," where he, no matter where he may be
21
found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers
when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual
conceptions of residency in law as explained in Gallego vs. Vera at 22 is "to exclude strangers or newcomers unfamiliar
with the conditions and needs of the community" from taking advantage of favorable circumstances existing in that
community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for
meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the
assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the
period of residency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have
either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or
by choice. It would, therefore, be imperative for this Court to inquire into the threshold question as to whether or not
petitioner actually was a resident for a period of one year in the area now encompassed by the Second Legislative District
of Makati at the time of his election or whether or not he was domiciled in the same.
As found by the COMELEC en banc petitioner in his Certificate of Candidacy for the May 11, 1992 elections, indicated not only
that he was a resident of San Jose, Concepcion, Tarlac in 1992 but that he was a resident of the same for 52 years immediately
preceding that election. 23 At the time, his certificate indicated that he was also a registered voter of the same district. 24 His
birth certificate places Concepcion, Tarlac as the birthplace of both of his parents Benigno and Aurora. 25 Thus, from data
furnished by petitioner himself to the COMELEC at various times during his political career, what stands consistently clear
and unassailable is that this domicile of origin of record up to the time of filing of his most recent certificate of candidacy
for the 1995 elections was Concepcion, Tarlac.
Petitioner's alleged connection with the Second District of Makati City is an alleged lease agreement of condominium unit in the
area. As the COMELEC, in its disputed Resolution noted:
The intention not to establish a permanent home in Makati City is evident in his leasing a condominium unit
instead of buying one. While a lease contract maybe indicative of respondent's intention to reside in Makati City
it does not engender the kind of permanency required to prove abandonment of one's
original domicile especially since, by its terms, it is only for a period of two (2) years, and respondent Aquino
himself testified that his intention was really for only one (l) year because he has other "residences" in Manila
or Quezon City. 26
While property ownership is not and should never be an indicia of the right to vote or to be voted upon, the fact that petitioner
himself claims that he has other residences in Metro Manila coupled with the short length of time he claims to be a resident of
the condominium unit in Makati (and the fact, of his stated domicile in Tarlac) "indicate that the sole purpose of (petitioner) in
transferring his physical residence" 27 is not to acquire's new residence ordomicile "but only to qualify as a candidate for
Representative of the Second District of Makati City." 28 The absence of clear and positive proof showing a successful
abandonment of domicile under the conditions stated above, the lack of identification — sentimental, actual or otherwise
— with the area, and the suspicious circumstances under which the lease agreement was effected all belie petitioner's
claim of residency for the period required by the Constitution, in the Second District of Makati. As the COMELEC en
banc emphatically pointed out:
[T]he lease agreement was executed mainly to support the one year residence requirement as a qualification
for a candidate of Representative, by establishing a commencement date of his residence. If a perfectly valid
lease agreement cannot, by itself establish; a domicile of choice, this particular lease agreement cannot do
better. 29
Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion which is hardly supported
by the facts in the case at bench. Domicile of origin is not easily lost. To successfully effect a change of domicile, petitioner must
prove an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with the purpose. 30 These requirements are hardly met by the
evidence adduced in support of petitioner's claims of a change of domicile from Tarlac to the Second District of Makati. In
the absence of clear and positive proof, the domicile of origin be deemed to continue requirements are hardly met by the
evidence adduced in support of petitioner's claims of a change of domicile from Tarlac to the Second District of Makati. In
the absence of clear and positive proof, the domicile of origin should be deemed to continue.
Finally, petitioner's submission that it would be legally impossible to impose the one year residency requirement in a newly
created political district is specious and lacks basis in logic. A new political district is not created out of thin air. It is carved out
from part of a real and existing geographic area, in this case the old Municipality of Makati. That people actually lived or were
domiciled in the area encompassed by the new Second District cannot be denied. Modern-day carpetbaggers cannot be allowed
take advantage of the creation of new political districts by suddenly transplanting themselves in such new districts, prejudicing
their genuine residents in the process of taking advantage of existing conditions in these areas. It will be noted, as COMELEC
did in its assailed resolution, that petitioner was disqualified from running in the Senate because of the constitutional two-term
limit, and had to shop around for a place where he could run for public office. Nothing wrong with that, but he must first prove
with reasonable certainty that he has effected a change of residence for election law purposes for the period required by law.
This he has not effectively done.
III
The next issue here is whether or not the COMELEC erred in issuing it Order instructing the Board of Canvassers of Makati City
to proclaim as winner the candidate receiving the next higher number of votes. The answer must be in the negative.
To contend that Syjuco should be proclaimed because he was the "first" among the qualified candidates in the May 8, 1995
elections is to misconstrue the nature of the democratic electoral process and the sociological and psychological underpinnings
behind voters' preferences. The result suggested by private respondent would lead not only to our reversing the doctrines firmly
entrenched in the two cases of Labo vs. Comelec 31 but also to a massive disenfranchisement of the thousands of voters
who cast their vote in favor of a candidate they believed could be validly voted for during the elections. Had petitioner
been disqualified before the elections, the choice, moreover, would have been different. The votes for Aquino given the
acrimony which attended the campaign, would not have automatically gone to second placer Syjuco. The nature of the
playing field would have substantially changed. To simplistically assume that the second placer would have received the
other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer.
He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first
among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have
substantially changed. We are not prepared to extrapolate the results under such circumstances.
In these cases, the pendulum of judicial opinion in our country has swung from one end to the other. In the early case of Topacio
v. Paredes. 32 we declared as valid, votes cast in favor of a disqualified, ineligilble or dead candidate provided the people
who voted for such candidate believed in good faith that at the time of the elections said candidate was either qualified,
eligible or alive. The votes cast in favor of a disqualified, ineligible or dead candidate who obtained the next higher number
of votes cannot be proclaimed as winner. According to this Court in the said case, "there is not, strictly speaking, a
contest, that wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving the plurality of the legally cast ballots."
Then in Ticson v. Comelec, 33 this Court held that votes cast in favor of a non-candidate in view of his unlawful change of
party affiliation (which was then a ground for disqualification) cannot be considered in the canvassing of election returns
and the votes fall into the category of invalid and nonexistent votes because a disqualified candidate is no candidate at all
and is not a candidate in the eyes of the law. As a result, this Court upheld the proclamation of the only candidate left in
the disputed position.
In Geronimo v. Ramos 34 we reiterated our ruling in Topacio v. Paredes that the candidate who lost in an election cannot be
proclaimed the winner in the event the candidate who ran for the portion is ineligible. We held in Geronimo:
[I]t would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a
candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which have positively declared through their ballots that they do
not choose him.
Sound policy dictates that public elective offices are filled by those who have received the highest number of
votes cast in the election for that office, and it is fundamental idea in all republican forms of government that no
one can be declared elected and no measure can be declared carried unless he or it receives a majority or
plurality of the legal votes cast in the elections. (20 Corpus Juris 2nd, S 243, p. 676.)
However, in Santos v. Comelec 35 we made a turnabout from our previous ruling in Geronimo v. Ramos and pronounced
that "votes cast for a disqualified candidate fall within the category of invalid or non-existent votes because a disqualified
candidate is no candidate at all in the eyes of the law," reverting to our earlier ruling in Ticson v. Comelec.
In the more recent cases of Labo, Jr. v. Comelec 36 Abella v. Comelec; 37 and Benito v. Comelec, 38 this Court reiterated and
upheld the ruling in Topacio v. Paredes and Geronimo v. Ramos to the effect that the ineligibility of a candidate receiving
the next higher number of votes to be declared elected, and that a minority or defeated candidate cannot be declared
elected to the office. In these cases, we put emphasis on our pronouncement in Geronimo v. Ramos that:
The fact that a candidate who obtained the highest number of votes is later declared to be disqualified or not
eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may be valid to vote the winner into office or maintain him there. However, in
the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the
votes were cast in sincere belief that candidate was alive, qualified, or eligible; they should not be treated as
stray, void or meaningless.
Synthesizing these rulings we declared in the latest case of Labo, Jr. v. COMELEC that: 39
While Ortega may have garnered the second highest number of votes for the office of city mayor, the fact
remains that he was not the choice of the sovereign will. Petitioner Labo was overwhelmingly voted by the
electorate for the office of mayor in the belief that he was then qualified to serve the people of Baguio City and
his subsequent disqualification does not make respondent Ortega the mayor-elect. This is the import of the
recent case of Abella v. Comelec (201 SCRA 253 [1991]), wherein we held that:
While it is true that SPC No. 88-546 was originally a petition to deny due course to the
certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the
fact remains that the local elections of Feb. 1, 1988 in the province of Leyte proceeded with
Larrazabal considered as a bona fide candidate. The voters of the province voted for her in
the sincere belief that she was a qualified candidate for the position of governor. Her votes
was counted and she obtained the highest number of votes. The net effect is that petitioner
lost in the election. He was repudiated by the electorate. . . What matters is that in the event a
candidate for an elected position who is voted for and who obtains the highest number of
votes is disqualified for not possessing the eligibility, requirements at the time of the election
as provided by law, the candidate who obtains the second highest number of votes for the
same position cannot assume the vacated position. (Emphasis supplied).
Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to depart therefrom.
Like Abella, petitioner Ortega lost in the election. He was repudiated by the electorate. He was obviously not
the choice of the people of Baguio City.
Thus, while respondent Ortega (G.R. No. 105111) originally filed a disqualification case with the Comelec
(docketed as SPA-92-029) seeking to deny due course to petitioner's (Labo's) candidacy, the same did not
deter the people of Baguio City from voting for petitioner Labo, who, by then, was allowed by the respondent
Comelec to be voted upon, the resolution for his disqualification having yet to attain the degree of finality (Sec.
78, Omnibus Election Code).
And in the earlier case of Labo v. Comelec. (supra), We held:
Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as
he obtained only the second highest number of votes in the election, he was obviously not the
choice of the people of Baguio City.
The latest ruling of the Court in this issue is Santos v. Commission on Election, (137 SCRA
740) decided in 1985. In that case, the candidate who placed second was proclaimed elected
after the votes for his winning rival, who was disqualified as a turncoat and considered a non-
candidate, were all disregarded as stray. In effect, the second placer won by default. That
decision was supported by eight members of the Court then (Cuevas J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay, and Aquino, JJ.,
concurring) with three dissenting (Teehankee, actingC.J., Abad Santos and Melencio-Herrera)
and another two reserving their votes (Plana and Gutierrez, Jr.). One was on official leave
(Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case
of Geronimo v. Santos (136 SCRA 435), which represents the more logical and democratic rule. That case,
which reiterated the doctrine first announced in 1912 in Topacio vs.Paredes (23 Phil. 238) was supported by
ten members of the Court. . . .
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate
cannot be deemed elected to the office.
Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning v. Giles, 52 Am. Dec.
149).
It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the
disqualified candidate should, in effect, be considered null and void. This would amount to disenfranchising the
electorate in whom, sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect
petitioner Labo bona fide without any intention to missapply their franchise, and in the honest belief that Labo
was then qualified to be the person to whom they would entrust the exercise of the powers of the government.
Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office.
Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances
can a minority or defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for
petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as certified by the
Election Registrar of Baguio City; rollo, p. 109; G.R. No. 105111).
This, it bears repeating, expresses the more logical and democratic view. We cannot, in another shift of the pendulum, subscribe
to the contention that the runner-up in an election in which the winner has been disqualified is actually the winner among the
remaining qualified candidates because this clearly represents a minority view supported only by a scattered number of obscure
American state and English court decisions. 40 These decisions neglect the possibility that the runner-up, though obviously
qualified, could receive votes so measly and insignificant in number that the votes they receive would be tantamount to
rejection. Theoretically, the "second placer" could receive just one vote. In such a case, it is absurd to proclaim the totally
repudiated candidate as the voters' "choice." Moreover, even in instances where the votes received by the second placer
may not be considered numerically insignificant, voters preferences are nonetheless so volatile and unpredictable that the
result among qualified candidates, should the equation change because of the disqualification of an ineligible candidate,
would not be self-evident. Absence of the apparent though ineligible winner among the choices could lead to a shifting of
votes to candidates other than the second placer. By any mathematical formulation, the runner-up in an election cannot be
construed to have obtained a majority or plurality of votes cast where an "ineligible" candidate has garnered either a
majority or plurality of the votes.
In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring herein petitioner ineligible for the elective
position of Representative of Makati City's Second District on the basis of respondent commission's finding that petitioner lacks
the one year residence in the district mandated by the 1987 Constitution. A democratic government is necessarily a government
of laws. In a republican government those laws are themselves ordained by the people. Through their representatives, they
dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks one of the essential
qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters
of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself.
WHEREFORE, premises considered, the instant petition is hereby DISMISSED. Our Order restraining respondent COMELEC
from proclaiming the candidate garnering the next highest number of votes in the congressional elections for the Second District
of Makati City is made PERMANENT.
SO ORDERED.
Regalado, Melo, Puno and Hermosisima, Jr., JJ., concur.
Feliciano, J., is on leave.

SUPREME COURT
Manila
EN BANC
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES
QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of
Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary
of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local
Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO
FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology;
JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism;
ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and
Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the
National Economic Development Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both seek a declaration of the unconstitutionality
of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or
assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold
not more than two positions in the government and government corporations and receive the corresponding
compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards,
councils or bodies of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive
Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position
in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two positions other
than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least
one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or
assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and
assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the
limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, which provides as follows:
2
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with
the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.
83815 and as Annex "B" in G.R. No. 83896 from holding any other office or employment during their tenure. In addition to
3 4
seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further
seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining
order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple
positions other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other
forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse
or refund any and all amounts or benefits that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-
executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing Section 13, Article VII in
relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, declaring that Cabinet
5
members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the
boards of government corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice
who is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by
law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of
the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No.
284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they
allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB.
This "strained linkage" between the two provisions, each addressed to a distinct and separate group of public officers –– one,
the President and her official family, and the other, public servants in general –– allegedly "abolished the clearly separate,
higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-
President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead
by example." Article IX-B, Section 7, par. (2) provides:
7 8
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other
office or employment in the government or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified
by DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988, being the first official construction and
9 10
interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution,
involving the same subject of appointments or designations of an appointive executive official to positions other than his primary
position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion
No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ
Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to
positions which, although not so designated as ex-officio are allowed by the primary functions of the public official, but only to
the holding of multiple positions which are not related to or necessarily included in the position of the public official concerned
(disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission that it
adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by virtue of the
phrase "unless otherwise provided in this Constitution," the only exceptions against holding any other office or employment in
Government are those provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member of the
Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and
Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service Commission
applies to officers and employees of the Civil Service in general and that said exceptions do not apply and cannot be extended
to Section 13, Article VII which applies specifically to the President, Vice-President, Members of the Cabinet and their deputies
or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their deputies or
assistants from holding dual or multiple positions in the Government admits of certain exceptions. The disagreement between
petitioners and public respondents lies on the constitutional basis of the exception. Petitioners insist that because of the phrase
"unless otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be expressly provided in the
Constitution, as in the case of the Vice-President being allowed to become a Member of the Cabinet under the second
paragraph of Section 3, Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and Bar
Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise provided
in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials
mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet
members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general
under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been
held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and
the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times,
and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in
order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or
boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became
prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to
his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and
controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members,
their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries,
emoluments, per diems, allowances and other perquisites of office. Most of these instrumentalities have remained up to the
present time.
This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who
took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in government was strongly
denounced on the floor of the Batasang Pambansa. This condemnation came in reaction to the published report of the
12
Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned and Controlled Corporations, Self-
Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality in government service were the data contained
therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies,
instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco,
Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B.
Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11)
each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore
quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission,
convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution
the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple
governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in
these cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was the
assurance given by its proponents that the scandalous practice of Cabinet members holding multiple positions in the
government and collecting unconscionably excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against the
holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the
Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment
during their tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the
framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other
offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the
disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI,
"(N)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . .".
Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be appointed in any
capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their
subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an
office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking
contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice-President, the Members of the Cabinet,
and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment
during their tenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in the Government."
The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private
office or employment.
Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his
official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of
Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987
Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly
articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and
debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the
anticipated report on the Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the
President and the members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints on
them are called for because there is more possibility of abuse in their case." 14
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government
during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-
XB is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section
13, Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their
deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot
possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said qualifying
phrase as respondents would have us do, would render nugatory and meaningless the manifest intent and purpose of the
framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their
deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents'
interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch from
the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below
Assistant Secretary downwards, on the other, may hold any other office or position in the government during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative. This
observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or
employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is
absolutely ineligible "for appointment or designation in any capacity to any public office or position during his tenure." Surely, to
say that the phrase "unless otherwise provided in this Constitution" found in Section 13, Article VII has reference to Section 7,
par. (1) of Article I-XB would render meaningless the specific provisions of the Constitution authorizing the Vice-President to
become a member of the Cabinet, and to act as President without relinquishing the Vice-Presidency where the President shall
15
not nave been chosen or fails to qualify. Such absurd consequence can be avoided only by interpreting the two provisions
16
under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13,
Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-
vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from all the
others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be
so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be
17
considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed
18
to defeat another, if by any reasonable construction, the two can be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every
word operative, rather than one which may make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-
President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the
government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of
Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a positive and unequivocal negation. The phrase "unless otherwise
21
provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or
acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice
being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not,
however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation
in an ex-officio capacity as provided by law and as required by the primary functions of said officials' office. The reason is that
22
these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an
imposition of additional duties and functions on said officials. To characterize these posts otherwise would lead to absurd
23
consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under
Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of
National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason
to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be
prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council
(NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his department for policy
coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. Neither can their respective undersecretaries and
24
assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy
direction in the areas of money, banking and credit. 25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a
continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and
unreasonable or absurd consequences, if possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's
office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely,
not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise denotes an
"act done in an official character, or as a consequence of office, and without any other appointment or authority than that
conferred by the office." An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and
27
without further warrant or appointment. To illustrate, by express provision of law, the Secretary of Transportation and
28
Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority, and the Light Rail Transit Authority.
29 30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control and
Inspection Board, thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and
31
members of the Board to qualify they need only be designated by the respective department heads. With the exception of the
representative from the private sector, they sit ex-officio. In order to be designated they must already be holding positions in the
offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs,
cannot, under the act, be designated a representative from that office. The same is true with respect to the representatives from
the other offices. No new appointments are necessary. This is as it should be, because the representatives so
designated merely perform duties in the Board in addition to those already performed under their original appointments." 32
The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The
term is not restricted to the singular but may refer to the plural. The additional duties must not only be closely related to, but
33
must be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions
are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority and the Civil Aeronautics Board.
34
If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to
the primary function of a cabinet official, such additional functions would fall under the purview of "any other office" prohibited by
the Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement
and Gaming Corporation. The same rule applies to such positions which confer on the cabinet official management functions
and/or monetary compensation, such as but not limited to chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which
are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise
and skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the
demands of efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and implementing laws affecting national interest and general welfare and
delivering basic services to the people. It is consistent with the power vested on the President and his alter egos, the Cabinet
members, to have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully
executed. Without these additional duties and functions being assigned to the President and his official family to sit in the
35
governing bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as
required by their primary functions, they would be supervision, thereby deprived of the means for control and resulting in an
unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in
Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of
the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional
compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned
has no right to receive additional compensation for his services in the said position. The reason is that these services are
already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary
of Finance attends a meeting of the Monetary Board as an ex-officiomember thereof, he is actually and in legal contemplation
performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the
jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be
in the form of a per them or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated,
such additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to Section 7,
par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by the functions of
his position," express reference to certain high-ranking appointive public officials like members of the Cabinet were
36
made. Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when
37
although not required by current law, membership of certain high-ranking executive officials in other offices and corporations is
necessary by reason of said officials' primary functions. The example given by Commissioner Monsod was the Minister of Trade
and Industry. 38
While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional functions
and duties flowing from the primary functions of the official may be imposed upon him without offending the constitutional
prohibition under consideration, it cannot, however, be taken as authority for saying that this exception is by virtue of Section 7,
par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary session of September 27, 1986.
Under consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on General
Provisions. At that time, the article on the Civil Service Commission had been approved on third reading on July 22,
39
1986, while the article on the Executive Department, containing the more specific prohibition in Section 13, had also been
40
earlier approved on third reading on August 26, 1986. It was only after the draft Constitution had undergone reformatting and
41
"styling" by the Committee on Style that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and
reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ."
What was clearly being discussed then were general principles which would serve as constitutional guidelines in the absence of
specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion was the adoption of
the qualified and delimited phrase "primary functions" as the basis of an exception to the general rule covering all appointive
public officials. Had the Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it
could have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of the proposed general
Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his official family is by reason of the legal
principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B At any
rate, we have made it clear that only the additional functions and duties "required," as opposed to "allowed," by the primary
functions may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive
at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said
42
proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional
1âwphi1
convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at
the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears
upon its face." The proper interpretation therefore depends more on how it was understood by the people adopting it than in
43
the framers's understanding thereof. 44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-
President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment
in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held
without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their
office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general
rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution's
manifest intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987
Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that
Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two
(2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple
offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution
prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition
mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be
stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier
clarified in this decision, ex-officio posts held by the executive official concerned without additional compensation as provided by
law and as required by the primary functions of his office do not fall under the definition of "any other office" within the
contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including
chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the
feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more
than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived
from a department head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the
distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and
energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages
to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and
economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin
and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and
Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government Luis Santos, Secretary of National Defense Fidel V.
45
Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish
their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations
and their subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are
no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to
emoluments for actual services rendered. It has been held that "in cases where there is no de jure,officer, a de facto officer,
46
who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the
office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the
services of an officer de facto and then be freed from all liability to pay any one for such services. Any per diem, allowances or
47
other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore
be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby
declared null and void and is accordingly set aside.
SO ORDERED.
EN BANC
G.R. No. 221697
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of Court with extremely urgent
application for an ex parte issuance of temporary restraining order/status quo ante order and/or writ of preliminary injunction
assailing the following: (1) 1 December 2015 Resolution of the Commission on Elections (COMELEC) Second Division; (2) 23
December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015 Resolution of the
COMELEC First Division; and ( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No.
15-007 (DC) and SPA No. 15-139 (DC) for having been issued without jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the Parish Church of Jaro,
Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care and custody over petitioner was passed on by
Edgardo to his relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6 September 1968, Emiliano reported and
registered petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and
Certificate of Live Birth, the petitioner was given the name "Mary Grace Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora
Poe (a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial Court (MTC) of San Juan City. On 13 May
1974, the trial court granted their petition and ordered that petitioner's name be changed from "Mary Grace Natividad Contreras
Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations were made by OCR-Iloilo on petitioner's foundling
certificate reflecting the court decreed adoption, the petitioner's adoptive mother discovered only sometime in the second half of
2
2005 that the lawyer who handled petitioner's adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth
indicating petitioner's new name and the name of her adoptive parents. Without delay, petitioner's mother executed an affidavit
3
attesting to the lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of
Live Birth in the name of Mary Grace Natividad Sonora Poe. 4
Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local COMELEC Office in San
Juan City. On 13 December 1986, she received her COMELEC Voter's Identification Card for Precinct No. 196 in Greenhills,
San Juan, Metro Manila. 5
On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 by the Department of Foreign Affairs
6
(DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her Philippine passport and respectively secured
Philippine Passport Nos. L881511 and DD156616. 7
Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the Philippines but she opted to
8
continue her studies abroad and left for the United States of America (U.S.) in 1988. Petitioner graduated in 1991 from Boston
College in Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts degree in Political Studies. 9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of both the Philippines and
the U.S., at Sanctuario de San Jose Parish in San Juan City. Desirous of being with her husband who was then based in the
10
U.S., the couple flew back to the U.S. two days after the wedding ceremony or on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992. Her two daughters Hanna
12
MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998 and 5 June 2004,
respectively. 13
On 18 October 2001, petitioner became a naturalized American citizen. 14

She obtained U.S. Passport No. 017037793 on 19
December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's candidacy for President
in the May 2004 elections. It was during this time that she gave birth to her youngest daughter Anika. She returned to the U.S.
with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon learning of her father's
deteriorating medical condition. Her father slipped into a coma and eventually expired. The petitioner stayed in the country until
17
3 February 2005 to take care of her father's funeral arrangements as well as to assist in the settlement of his estate. 18
According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In her earnest desire to be
with her grieving mother, the petitioner and her husband decided to move and reside permanently in the Philippines sometime in
the first quarter of 2005. The couple began preparing for their resettlement including notification of their children's schools that
19
they will be transferring to Philippine schools for the next semester; coordination with property movers for the relocation of their
20
household goods, furniture and cars from the U.S. to the Philippines; and inquiry with Philippine authorities as to the proper
21
procedure to be followed in bringing their pet dog into the country. As early as 2004, the petitioner already quit her job in the
22
U.S.23
Finally, petitioner came home to the Philippines on 24 May 2005 and without delay, secured a Tax Identification Number from
24
the Bureau of Internal Revenue. Her three (3) children immediately followed while her husband was forced to stay in the U.S. to
25
complete pending projects as well as to arrange the sale of their family home there. 26
The petitioner and her children briefly stayed at her mother's place until she and her husband purchased a condominium unit
with a parking slot at One Wilson Place Condominium in San Juan City in the second half of 2005. The corresponding 27
Condominium Certificates of Title covering the unit and parking slot were issued by the Register of Deeds of San Juan City to
petitioner and her husband on 20 February 2006. Meanwhile, her children of school age began attending Philippine private
28
schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of the family's remaining
household belongings. She travelled back to the Philippines on 11 March 2006.
29 30
In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change and abandonment of
their address in the U.S. The family home was eventually sold on 27 April 2006. Petitioner's husband resigned from his job in
31 32
the U.S. in April 2006, arrived in the country on 4 May 2006 and started working for a major Philippine company in July 2006. 33
In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon City where they built their
family home and to this day, is where the couple and their children have been residing. A Transfer Certificate of Title covering
34 35
said property was issued in the couple's name by the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to Republic Act (R.A.) No.
9225 or the Citizenship Retention and Re-acquisition Act of 2003. Under the same Act, she filed with the Bureau of Immigration
36
(BI) a sworn petition to reacquire Philippine citizenship together with petitions for derivative citizenship on behalf of her three
minor children on 10 July 2006. As can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's petitions
37
and declared that she is deemed to have reacquired her Philippine citizenship while her children are considered as citizens of
the Philippines. Consequently, the BI issued Identification Certificates (ICs) in petitioner's name and in the names of her three
38
(3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006. She also secured from the 40
DFA a new Philippine Passport bearing the No. XX4731999. This passport was renewed on 18 March 2014 and she was issued
41
Philippine Passport No. EC0588861 by the DFA. 42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and Television Review
and Classification Board (MTRCB). Before assuming her post, petitioner executed an "Affidavit of Renunciation of Allegiance to
43
the United States of America and Renunciation of American Citizenship" before a notary public in Pasig City on 20 October
2010, in satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225. The following day, 21 October 2010 petitioner
44 45
submitted the said affidavit to the BI and took her oath of office as Chairperson of the MTRCB. From then on, petitioner
46 47
stopped using her American passport. 48

On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an "Oath/Affirmation of
Renunciation of Nationality of the United States." On that day, she accomplished a sworn questionnaire before the U.S. Vice
49
Consul wherein she stated that she had taken her oath as MTRCB Chairperson on 21 October 2010 with the intent, among
others, of relinquishing her American citizenship. In the same questionnaire, the petitioner stated that she had resided outside
50
of the U.S., specifically in the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to present. 51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the United States"
effective 21 October 2010. 52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator for the 2013
Elections wherein she answered "6 years and 6 months" to the question "Period of residence in the Philippines before May 13,
2013." Petitioner obtained the highest number of votes and was proclaimed Senator on 16 May 2013.
53 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55
On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. In her COC, the petitioner
56
declared that she is a natural-born citizen and that her residence in the Philippines up to the day before 9 May 2016 would be
ten (10) years and eleven (11) months counted from 24 May 2005. The petitioner attached to her COC an "Affidavit Affirming
57
Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several COMELEC cases against her
which were the subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny due course or cancel said
COC which was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second Division. She is convinced that the
59
COMELEC has jurisdiction over her petition. Essentially, Elamparo's contention is that petitioner committed material
60
misrepresentation when she stated in her COC that she is a natural-born Filipino citizen and that she is a resident of the
Philippines for at least ten (10) years and eleven (11) months up to the day before the 9 May 2016 Elections. 61
On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born Filipino on account of the
fact that she was a foundling. Elamparo claimed that international law does not confer natural-born status and Filipino
62
citizenship on foundlings. Following this line of reasoning, petitioner is not qualified to apply for reacquisition of Filipino
63
citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen to begin with. Even assuming arguendo that
64
petitioner was a natural-born Filipino, she is deemed to have lost that status when she became a naturalized American
citizen. According to Elamparo, natural-born citizenship must be continuous from birth.
65 66
On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn declaration she made in
her 2012 COC for Senator wherein she indicated that she had resided in the country for only six ( 6) years and six ( 6) months
as of May 2013 Elections. Elamparo likewise insisted that assuming arguendo that petitioner is qualified to regain her natural-
born status under R.A. No. 9225, she still fell short of the ten-year residency requirement of the Constitution as her residence
could only be counted at the earliest from July 2006, when she reacquired Philippine citizenship under the said Act. Also on the
assumption that petitioner is qualified to reacquire lost Philippine Citizenship, Elamparo is of the belief that she failed to
reestablish her domicile in the Philippines. 67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition for quo warranto which
could only be filed if Grace Poe wins in the Presidential elections, and that the Department of Justice (DOJ) has primary
jurisdiction to revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain allegations which, if hypothetically admitted,
would make false the statement in her COC that she is a natural-born Filipino citizen nor was there any allegation that
there was a willful or deliberate intent to misrepresent on her part;
(3) she did not make any material misrepresentation in the COC regarding her citizenship and residency qualifications
for:
a. the 1934 Constitutional Convention deliberations show that foundlings were considered citizens;
b. foundlings are presumed under international law to have been born of citizens of the place where they are
found;
c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225;
d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC for President in
the May 9, 2016 Elections and that the same is in full force and effect and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not possess natural-born status;
f. residence is a matter of evidence and that she reestablished her domicile in the Philippines as early as May
24, 2005;
g. she could reestablish residence even before she reacquired natural-born citizenship under R.A. No. 9225;
h. statement regarding the period of residence in her 2012 COC for Senator was an honest mistake, not
binding and should give way to evidence on her true date of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to decide a purely
political question, that is, should she serve as the country's next leader.
68
After the parties submitted their respective Memoranda, the petition was deemed submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's COC, filed for the
purpose of running for the President of the Republic of the Philippines in the 9 May 2016 National and Local Elections, contained
material representations which are false. The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or Cancel Certificate of
Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy for President of the Republic of the Philippines in the
May 9, 2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe Llamanzares is
hereby CANCELLED. 69
Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the COMELEC En Banc resolved in
its 23 December 2015 Resolution by denying the same. 70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P. Contreras (Contreras) and
Amado D. Valdez (Valdez) against petitioner before the COMELEC which were consolidated and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure, docketed as SPA No. 15-002 (DC),
71
Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify her for the Presidency. 72
Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown parentage, particularly
foundlings, cannot be considered natural-born Filipino citizens since blood relationship is determinative of natural-born
status. Tatad invoked the rule of statutory construction that what is not included is excluded. He averred that the fact that
73
foundlings were not expressly included in the categories of citizens in the 193 5 Constitution is indicative of the framers' intent to
exclude them. Therefore, the burden lies on petitioner to prove that she is a natural-born citizen.
74 75
Neither can petitioner seek refuge under international conventions or treaties to support her claim that foundlings have a
nationality. According to Tatad, international conventions and treaties are not self-executory and that local legislations are
76
necessary in order to give effect to treaty obligations assumed by the Philippines. He also stressed that there is no standard
77
state practice that automatically confers natural-born status to foundlings. 78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire Philippine citizenship under
R.A. No. 9225 because it only applies to former natural-born citizens and petitioner was not as she was a foundling. 79
Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10) year residency
requirement. Tatad opined that petitioner acquired her domicile in Quezon City only from the time she renounced her American
80
citizenship which was sometime in 2010 or 2011. Additionally, Tatad questioned petitioner's lack of intention to abandon her
81
U.S. domicile as evinced by the fact that her husband stayed thereat and her frequent trips to the U.S. 82
In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-139 (DC), Valdez alleged
that her repatriation under R.A. No. 9225 did not bestow upon her the status of a natural-born citizen. He advanced the view
83
that former natural-born citizens who are repatriated under the said Act reacquires only their Philippine citizenship and will not
revert to their original status as natural-born citizens.
84
He further argued that petitioner's own admission in her COC for Senator that she had only been a resident of the Philippines for
at least six (6) years and six (6) months prior to the 13 May 2013 Elections operates against her. Valdez rejected petitioner's
claim that she could have validly reestablished her domicile in the Philippines prior to her reacquisition of Philippine citizenship.
In effect, his position was that petitioner did not meet the ten (10) year residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras' petition, docketed as SPA No. 15-007 (DC), limited the
85
attack to the residency issue. He claimed that petitioner's 2015 COC for President should be cancelled on the ground that she
did not possess the ten-year period of residency required for said candidacy and that she made false entry in her COC when
she stated that she is a legal resident of the Philippines for ten (10) years and eleven (11) months by 9 May 2016. Contreras
86
contended that the reckoning period for computing petitioner's residency in the Philippines should be from 18 July 2006, the date
when her petition to reacquire Philippine citizenship was approved by the BI. He asserted that petitioner's physical presence in
87
the country before 18 July 2006 could not be valid evidence of reacquisition of her Philippine domicile since she was then living
here as an American citizen and as such, she was governed by the Philippine immigration laws. 88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did not invoke grounds
proper for a disqualification case as enumerated under Sections 12 and 68 of the Omnibus Election Code. Instead, Tatad 89
completely relied on the alleged lack of residency and natural-born status of petitioner which are not among the recognized
grounds for the disqualification of a candidate to an elective office.
90
Second, the petitions filed against her are basically petitions for quo warranto as they focus on establishing her ineligibility for
the Presidency. A petition for quo warranto falls within the exclusive jurisdiction of the Presidential Electoral Tribunal (PET) and
91
not the COMELEC. 92
Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents. Otherwise stated, she has a
93
presumption in her favor that she is a natural-born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to a nationality and are presumed to be citizens of the
country where they are found. Consequently, the petitioner is considered as a natural-born citizen of the Philippines.
94 95
Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No. 9225 or the right to
reacquire her natural-born status. Moreover, the official acts of the Philippine Government enjoy the presumption of regularity,
96
to wit: the issuance of the 18 July 2006 Order of the BI declaring her as natural-born citizen, her appointment as MTRCB Chair
and the issuance of the decree of adoption of San Juan RTC. She believed that all these acts reinforced her position that she is
97
a natural-born citizen of the Philippines.

98
Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of choice in the
Philippines as demonstrated by her children's resettlement and schooling in the country, purchase of a condominium unit in San
Juan City and the construction of their family home in Corinthian Hills. 99
Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even before she renounced her
American citizenship as long as the three determinants for a change of domicile are complied with. She reasoned out that there
100
was no requirement that renunciation of foreign citizenship is a prerequisite for the acquisition of a new domicile of choice. 101
Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a mistake made in good
faith.
102
In a Resolution promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner is not a natural-born
103
citizen, that she failed to complete the ten (10) year residency requirement, and that she committed material misrepresentation
in her COC when she declared therein that she has been a resident of the Philippines for a period of ten (10) years and eleven
(11) months as of the day of the elections on 9 May 2016. The COMELEC First Division concluded that she is not qualified for
the elective position of President of the Republic of the Philippines. The dispositive portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, toGRANT the Petitions and
cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of
President of the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's Resolution. On 23 December
2015, the COMELEC En Banc issued a Resolution denying petitioner's motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions for certiorari with urgent prayer for
the issuance of an ex parte temporary restraining order/status quo ante order and/or writ of preliminary injunction. On 28
December 2015, temporary restraining orders were issued by the Court enjoining the COMELEC and its representatives from
implementing the assailed COMELEC Resolutions until further orders from the Court. The Court also ordered the consolidation
of the two petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases SPA No. 15-002
(DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No.
15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December 2015 Resolution of the
Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015 Resolution of
the First Division.
The procedure and the conclusions from which the questioned Resolutions emanated are tainted with grave abuse of discretion
amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or cancelled "on the
exclusive ground" that she made in the certificate a false material representation. The exclusivity of the ground should hedge in
the discretion of the COMELEC and restrain it from going into the issue of the qualifications of the candidate for the position, if,
as in this case, such issue is yet undecided or undetermined by the proper authority. The COMELEC cannot itself, in the same
cancellation case, decide the qualification or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications
of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided
by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and
barangay offices shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of
the number and location of polling places, appointment of election officials and inspectors, and registration of
voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly,
honest, peaceful, and credible elections.
(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other
requirements, must present their platform or program of government; and accredit citizens' arms of the
Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to
achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or
which are supported by any foreign government shall likewise be refused registration.
Financial contributions from foreign governments and their agencies to political parties, organizations,
coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted,
shall be an additional ground for the cancellation of their registration with the Commission, in addition to other
penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize election spending, including limitation of
places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds,
offenses, malpractices, and nuisance candidacies.
(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of
any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI, Section 17 of the same basic
law stating that:
The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be,
who shall be chosen on the basis of proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal
shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-President, Senators and
the Members of the House of Representatives was made clear by the Constitution. There is no such provision for candidates for
these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections, which was affirmatively cited in
104
the En Banc decision in Fermin v. COMELEC is our guide. The citation in Fermin reads:
105
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC amended its
rules on February 15, 1993 so as to provide in Rule 25 § 1, the following:
Grounds for disqualification. - Any candidate who does not possess all the qualifications of a candidate as
provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act is
equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise of its rule-
making power under Art. IX, A, §6 of the Constitution, cannot do it. It is noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. [Art. IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is contrary to the
evident intention of the law. For not only in their grounds but also in their consequences are proceedings for "disqualification"
different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on grounds
specified in § 12 and §68 of the Omnibus Election Code and in §40 of the Local Government Code and are for the purpose of
barring an individual from becoming a candidate or from continuing as a candidate for public office. In a word, their purpose is
to eliminate a candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to the
lack of the qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the
proceedings for declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified from
becoming a candidate or continuing as a candidate for a public office and vice versa. We have this sort of dichotomy in our
Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in §2 of the Law does not imply that he does
not suffer from any of [the] disqualifications provided in §4.
Before we get derailed by the distinction as to grounds and the consequences of the respective proceedings, the importance of
the opinion is in its statement that "the lack of provision for declaring the ineligibility of candidates, however, cannot be supplied
by a mere rule". Justice Mendoza lectured in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized proceeding for determiningbefore election the qualifications
of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility for the
office. In contrast, whether an individual should be disqualified as a candidate for acts constituting election offenses (e.g., vote
buying, over spending, commission of prohibited acts) is a prejudicial question which should be determined lest he wins because
of the very acts for which his disqualification is being sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some
reason he has been voted for and he has won, either he will not be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this case, his domicile, may take
a long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated in the companion
case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence was still pending in the
COMELEC even after the elections of May 8, 1995. This is contrary to the summary character proceedings relating to
certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC
and its officers. The law is satisfied if candidates state in their certificates of candidacy that they are eligible for the position
which they seek to fill, leaving the determination of their qualifications to be made after the election and only in the event they
are elected. Only in cases involving charges of false representations made in certificates of candidacy is the COMELEC given
jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President, Senators
and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to preserve the prerogatives of the House
of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of the election,
returns andqualifications of members of Congress of the President and Vice President, as the case may be. 106
To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the amendment through
COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15 February1993 version of Rule 25, which
states that:
Grounds for disqualification. -Any candidate who does not possess all the qualifications of a candidate as provided for by the
Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified
from continuing as a candidate. 107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision of a competent court, guilty
of, or found by the Commission to be suffering from any disqualification provided by law or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of Candidacy or Petition to
Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized proceeding for
determining before election the qualifications of candidate. Such that, as presently required, to disqualify a candidate there must
be a declaration by a final judgment of a competent court that the candidate sought to be disqualified "is guilty of or found by the
Commission to be suffering from any disqualification provided by law or the Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the other. Both do not
allow, are not authorizations, are not vestment of jurisdiction, for the COMELEC to determine the qualification of a candidate.
The facts of qualification must beforehand be established in a prior proceeding before an authority properly vested with
jurisdiction. The prior determination of qualification may be by statute, by executive order or by a judgment of a competent court
or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is suffering from a disqualification "provided by law or
the Constitution," neither can the certificate of candidacy be cancelled or denied due course on grounds of false representations
regarding his or her qualifications, without a prior authoritative finding that he or she is not qualified, such prior authority being
the necessary measure by which the falsity of the representation can be found. The only exception that can be conceded are
self-evident facts of unquestioned or unquestionable veracity and judicial confessions. Such are, anyway, bases equivalent to
prior decisions against which the falsity of representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with, as in this case, alleged
false representations regarding the candidate's citizenship and residence, forced the COMELEC to rule essentially that since
foundlings are not mentioned in the enumeration of citizens under the 1935 Constitution, they then cannot be citizens. As the
108 109
COMELEC stated in oral arguments, when petitioner admitted that she is a foundling, she said it all. This borders on bigotry.
Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot rule that herein petitioner possesses blood relationship
with a Filipino citizen when "it is certain that such relationship is indemonstrable," proceeded to say that "she now has the
burden to present evidence to prove her natural filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is neither unknown nor unaccepted in Philippine Law. The
Family Code of the Philippines has a whole chapter on Paternity and Filiation. That said, there is more than sufficient evider1ce
110
that petitioner has Filipino parents and is therefore a natural-born Filipino. Parenthetically, the burden of proof was on private
respondents to show that petitioner is not a Filipino citizen. The private respondents should have shown that both of petitioner's
parents were aliens. Her admission that she is a foundling did not shift the burden to her because such status did not exclude
the possibility that her parents were Filipinos, especially as in this case where there is a high probability, if not certainty, that her
parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such parents are Filipinos.
Under Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce belief in its existence
or no-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish
the probability of improbability of the fact in issue.
The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) that from 1965 to 1975, the total
111
number of foreigners born in the Philippines was 15,986 while the total number of Filipinos born in the country was 10,558,278.
The statistical probability that any child born in the Philippines in that decade is natural-born Filipino was 99.83%. For her part,
petitioner presented census statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there were 962,532
Filipinos and 4,734 foreigners in the province; 99.62%of the population were Filipinos. In 1970, the figures were 1,162,669
Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for the child producing ages (15-49). In 1960, there were
230,528 female Filipinos as against 730 female foreigners or 99.68%. In the same year, there were 210,349 Filipino males and
886 male aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female aliens, or 99.56%. That same
year, there were 245,740 Filipino males as against only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures.
Notably, Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner was found in 1968, the
majority of the population in Iloilo was Filipino.
112
Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned as an infant in a
Roman Catholic Church in Iloilo City. She also has typical Filipino features: height, flat nasal bridge, straight black hair, almond
1âwphi1
shaped eyes and an oval face.
There is a disputable presumption that things have happened according to the ordinary course of nature and the ordinary habits
of life. All of the foregoing evidence, that a person with typical Filipino features is abandoned in Catholic Church in a
113
municipality where the population of the Philippines is overwhelmingly Filipinos such that there would be more than a 99%
chance that a child born in the province would be a Filipino, would indicate more than ample probability if not statistical certainty,
that petitioner's parents are Filipinos. That probability and the evidence on which it is based are admissible under Rule 128,
Section 4 of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to the Philippines so they can get pregnant and leave
their newborn babies behind. We do not face a situation where the probability is such that every foundling would have a 50%
chance of being a Filipino and a 50% chance of being a foreigner. We need to frame our questions properly. What are the
chances that the parents of anyone born in the Philippines would be foreigners? Almost zero. What are the chances that the
parents of anyone born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were 1,766,046 children born in
the Philippines to Filipino parents, as opposed to 1,301 children in the Philippines of foreign parents. Thus, for that sample
period, the ratio of non-Filipino children to natural born Filipino children is 1:1357. This means that the statistical probability that
any child born in the Philippines would be a natural born Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total number of Filipinos born in the
Philippines is 15,558,278. For this period, the ratio of non-Filipino children is 1:661. This means that the statistical probability
that any child born in the Philippines on that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident that the statistical
probability that a child born in the Philippines would be a natural born Filipino will not be affected by whether or not the parents
are known. If at all, the likelihood that a foundling would have a Filipino parent might even be higher than 99.9%. Filipinos
abandon their children out of poverty or perhaps, shame. We do not imagine foreigners abandoning their children here in the
Philippines thinking those infants would have better economic opportunities or believing that this country is a tropical paradise
suitable for raising abandoned children. I certainly doubt whether a foreign couple has ever considered their child excess
baggage that is best left behind.
To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical chance that
one among the thousands of these foundlings might be the child of not just one, but two, foreigners is downright discriminatory,
irrational, and unjust. It just doesn't make any sense. Given the statistical certainty - 99.9% - that any child born in the
Philippines would be a natural born citizen, a decision denying foundlings such status is effectively a denial of their birthright.
There is no reason why this Honorable Court should use an improbable hypothetical to sacrifice the fundamental political rights
of an entire class of human beings. Your Honor, constitutional interpretation and the use of common sense are not separate
disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's enumeration is silent as to
foundlings, there is no restrictive language which would definitely exclude foundlings either. Because of silence and ambiguity in
the enumeration with respect to foundlings, there is a need to examine the intent of the framers. In Nitafan v. Commissioner of
Internal Revenue, this Court held that:
114
The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the
intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the
people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution
were guided mainly by the explanation offered by the framers. 115
As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional Convention show that
the framers intended foundlings to be covered by the enumeration. The following exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural children of a foreign
father and a Filipino mother not recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman refers to natural children or to
any kind of illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or illegitimate children of
unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino, that is, I refer to the Spanish
Code wherein all children of unknown parentage born in Spanish territory are considered Spaniards, because the presumption is
that a child of unknown parentage is the son of a Spaniard. This may be applied in the Philippines in that a child of unknown
parentage born in the Philippines is deemed to be Filipino, and there is no need ...
Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of unknown parentage."
Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not unknown.
President:
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina with a foreigner who does not
recognize the child. Their parentage is not unknown and I think those of overseas Filipino mother and father [whom the latter]
does not recognize, should also be considered as Filipinos.
President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the constitution need [not] refer to
them. By international law the principle that children or people born in a country of unknown parents are citizens in this nation is
recognized, and it is not necessary to include a provision on the subject exhaustively. 116
Though the Rafols amendment was not carried out, it was not because there was any objection to the notion that persons of
"unknown parentage" are not citizens but only because their number was not enough to merit specific mention. Such was the
account, cited by petitioner, of delegate and constitution law author Jose Aruego who said:
117
During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino citizens the
illegitimate children with a foreign father of a mother who was a citizen of the Philippines, and also foundlings; but this
amendment was defeated primarily because the Convention believed that the cases, being too few to warrant the
inclusion of a provision in the Constitution to apply to them, should be governed by statutory legislation. Moreover, it
was believed that the rules of international law were already clear to the effect that illegitimate children followed the
citizenship of the mother, and that foundlings followed the nationality of the place where they were found,
thereby making unnecessary the inclusion in the Constitution of the proposed amendment.
This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was declined was the proposal for a textual and explicit
recognition of foundlings as Filipinos. And so, the way to explain the constitutional silence is by saying that it was the view of
Montinola and Roxas which prevailed that there is no more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a constitution can
constitutionalize rules based on assumptions that are imperfect or even wrong. They can even overturn existing rules. This is
basic. What matters here is that Montinola and Roxas were able to convince their colleagues in the convention that there is no
more need to expressly declare foundlings as Filipinos because they are already impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the avoidance of redundancy. The
policy is clear: it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of the 1935 Constitution. This
inclusive policy is carried over into the 1973 and 1987 Constitution. It is appropriate to invoke a famous scholar as he was
paraphrased by Chief Justice Fernando: the constitution is not silently silent, it is silently vocal.118
The Solicitor General makes the further point that the framers "worked to create a just and humane society," that "they were
reasonable patriots and that it would be unfair to impute upon them a discriminatory intent against foundlings." He exhorts that,
given the grave implications of the argument that foundlings are not natural-born Filipinos, the Court must search the records of
the 1935, 1973 and 1987 Constitutions "for an express intention to deny foundlings the status of Filipinos. The burden is on
those who wish to use the constitution to discriminate against foundlings to show that the constitution really intended to take this
path to the dark side and inflict this across the board marginalization."
We find no such intent or language permitting discrimination against foundlings. On the contrary, all three Constitutions
guarantee the basic right to equal protection of the laws. All exhort the State to render social justice. Of special consideration are
several provisions in the present charter: Article II, Section 11 which provides that the "State values the dignity of every human
person and guarantees full respect for human rights," Article XIII, Section 1 which mandates Congress to "give highest priority to
the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and
political inequalities x x x" and Article XV, Section 3 which requires the State to defend the "right of children to assistance,
including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other
conditions prejudicial to their development." Certainly, these provisions contradict an intent to discriminate against foundlings on
account of their unfortunate status.
Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not provide that adoption
confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first place to be adopted. The most basic of
such laws is Article 15 of the Civil Code which provides that "[l]aws relating to family rights, duties, status, conditions, legal
capacity of persons are binding on citizens of the Philippines even though living abroad." Adoption deals with status, and a
Philippine adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic, a child left by an
119
unidentified mother was sought to be adopted by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in rem, which no court may entertain unless it has jurisdiction, not
only over the subject matter of the case and over the parties, but also over the res, which is the personal status of Baby Rose as
well as that of petitioners herein. Our Civil Code (Art. 15) adheres to the theory that jurisdiction over the status of a natural
person is determined by the latter's nationality. Pursuant to this theory, we have jurisdiction over the status of Baby Rose, she
being a citizen of the Philippines, but not over the status of the petitioners, who are foreigners. (Underlining supplied)
120
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the Inter-Country Adoption of
Filipino Children and For Other Purposes" (otherwise known as the "Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled
"An Act Establishing the Rules and Policies on the Adoption of Filipino Children and For Other Purposes" (otherwise known as
the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to
"Filipino children" and include foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling leading to the issuance of a foundling certificate
under these laws and the issuance of said certificate are acts to acquire or perfect Philippine citizenship which make the
foundling a naturalized Filipino at best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens are those who are
citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." In the
first place, "having to perform an act" means that the act must be personally done by the citizen. In this instance, the
determination of foundling status is done not by the child but by the authorities. Secondly, the object of the process is the
121
determination of the whereabouts of the parents, not the citizenship of the child. Lastly, the process is certainly not analogous to
naturalization proceedings to acquire Philippine citizenship, or the election of such citizenship by one born of an alien father and
a Filipino mother under the 1935 Constitution, which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced by a Foundling
Certificate issued in her favor. The Decree of Adoption issued on 13 May 1974, which approved petitioner's adoption by Jesusa
122
Sonora Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her "foundling parents,"
hence effectively affirming petitioner's status as a foundling.123
Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international law can become part of
the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international
law be transformed into a domestic law through a constitutional mechanism such as local legislation. On the other hand,
124
generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws
of the land even if they do not derive from treaty obligations. Generally accepted principles of international law include
international custom as evidence of a general practice accepted as law, and general principles of law recognized by civilized
nations. International customary rules are accepted as binding as a result from the combination of two elements: the
125
established, widespread, and consistent practice on the part of States; and a psychological element known as the opinionjuris
sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it. "General principles of law recognized by civilized nations" are principles
126
"established by a process of reasoning" or judicial logic, based on principles which are "basic to legal systems generally," such127
as "general principles of equity, i.e., the general principles of fairness and justice," and the "general principle against
discrimination" which is embodied in the "Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention
Against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and
Occupation." These are the same core principles which underlie the Philippine Constitution itself, as embodied in the due
128
process and equal protection clauses of the Bill of Rights. 129
Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the generally accepted principles
of international law and binding on the State. Article 15 thereof states:
130
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the UNCRC imposes the
following obligations on our country:
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a
nationality and as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under
the relevant international instruments in this field, in particular where the child would otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 24 thereof provide
for the right of every child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property
or birth, the right, to such measures of protection as are required by his status as a minor, on the part of his family, society and
the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality from birth and ensure
that no child is stateless. This grant of nationality must be at the time of birth, and it cannot be accomplished by the application
of our present naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the
applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the Philippines, are generally accepted principles of international
law. The first is Article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws under
which a foundling is presumed to have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the country of birth. If the child's parentage is established,
its nationality shall be determined by the rules applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was found.
(Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of the country where he is found, contained in Article 2
of the 1961 United Nations Convention on the Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been
born within the territory of parents possessing the nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the Reduction of Statelessness
does not mean that their principles are not binding. While the Philippines is not a party to the 1930 Hague Convention, it is a
signatory to the Universal Declaration on Human Rights, Article 15(1) ofwhich effectively affirms Article 14 of the 1930 Hague
131
Convention. Article 2 of the 1961 "United Nations Convention on the Reduction of Statelessness" merely "gives effect" to Article
15(1) of the UDHR. In Razon v. Tagitis, this Court noted that the Philippines had not signed or ratified the "International
132 133
Convention for the Protection of All Persons from Enforced Disappearance." Yet, we ruled that the proscription against enforced
disappearances in the said convention was nonetheless binding as a "generally accepted principle of international law." Razon
v. Tagitis is likewise notable for declaring the ban as a generally accepted principle of international law although the convention
had been ratified by only sixteen states and had not even come into force and which needed the ratification of a minimum of
twenty states. Additionally, as petitioner points out, the Court was content with the practice of international and regional state
organs, regional state practice in Latin America, and State Practice in the United States.
Another case where the number of ratifying countries was not determinative is Mijares v. Ranada, where onlyfour countries
134
had "either ratified or acceded to" the 1966 "Convention on the Recognition and Enforcement of Foreign Judgments in Civil
135
and Commercial Matters" when the case was decided in 2005. The Court also pointed out that that nine member countries of the
European Common Market had acceded to the Judgments Convention. The Court also cited U.S. laws and jurisprudence on
recognition of foreign judgments. In all, only the practices of fourteen countries were considered and yet, there was
pronouncement that recognition of foreign judgments was widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted principles of international
law" are based not only on international custom, but also on "general principles of law recognized by civilized nations," as the
phrase is understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights and which are "basic to legal systems
generally," support the notion that the right against enforced disappearances and the recognition of foreign judgments, were
136
correctly considered as "generally accepted principles of international law" under the incorporation clause.
Petitioner's evidence shows that at least sixty countries in Asia, North and South America, and Europe have passed legislation
137
recognizing foundlings as its citizen. Forty-two (42) of those countries follow the jus sanguinisregime. Of the sixty, only thirty-
three (33) are parties to the 1961 Convention on Statelessness; twenty-six (26) are not signatories to the Convention. Also, the
Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%),
foundlings are recognized as citizens. These circumstances, including the practice of jus sanguinis countries, show that it is a
generally accepted principle of international law to presume foundlings as having been born of nationals of the country in which
the foundling is found.
Current legislation reveals the adherence of the Philippines to this generally accepted principle of international law. In particular,
R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer to "Filipino children." In all of them, foundlings
are among the Filipino children who could be adopted. Likewise, it has been pointed that the DFA issues passports to
foundlings. Passports are by law, issued only to citizens. This shows that even the executive department, acting through the
DFA, considers foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on Statelessness is rational and
reasonable and consistent with the jus sanguinis regime in our Constitution. The presumption of natural-born citizenship of
foundlings stems from the presumption that their parents are nationals of the Philippines. As the empirical data provided by the
PSA show, that presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were designed to
address the plight of a defenseless class which suffers from a misfortune not of their own making. We cannot be restrictive as to
their application if we are a country which calls itself civilized and a member of the community of nations. The Solicitor General's
warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that those treaties and conventions were drafted
because the world community is concerned that the situation of foundlings renders them legally invisible. It would be tragically
ironic if this Honorable Court ended up using the international instruments which seek to protect and uplift foundlings a tool to
deny them political status or to accord them second-class citizenship. 138
The COMELEC also ruled that petitioner's repatriation in July 2006 under the provisions of R.A. No. 9225 did not result in the
139
reacquisition of natural-born citizenship. The COMELEC reasoned that since the applicant must perform an act, what is
reacquired is not "natural-born" citizenship but only plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation statutes in general and of R.A.
No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140

repatriation was explained as follows:
Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his
citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-
born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They include Sobejana-Condon v.
COMELEC where we described it as an "abbreviated repatriation process that restores one's Filipino citizenship x x x." Also
141
included is Parreno v. Commission on Audit, which cited Tabasa v. Court of Appeals, where we said that "[t]he repatriation of
142 143
the former Filipino will allow him to recover his natural-born citizenship.Parreno v. Commission on Audit is categorical that "if
144
petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that natural-born citizenship
must begin at birth and remain uninterrupted and continuous from birth." R.A. No. 9225 was obviously passed in line with
Congress' sole prerogative to determine how citizenship may be lost or reacquired. Congress saw it fit to decree that natural-
born citizenship may be reacquired even if it had been once lost. It is not for the COMELEC to disagree with the Congress'
determination.
More importantly, COMELEC's position that natural-born status must be continuous was already rejected inBengson III v.
HRET where the phrase "from birth" was clarified to mean at the time of birth: "A person who at the time of his birth, is a citizen
145
of a particular country, is a natural-born citizen thereof." Neither is "repatriation" an act to "acquire or perfect" one's citizenship.
In Bengson III v. HRET, this Court pointed out that there are only two types of citizens under the 1987 Constitution: natural-born
citizen and naturalized, and that there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of citizens:
(1) those who are natural-born and (2) those who are naturalized in accordance with law. A citizen who is not a naturalized
Filipino, ie., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is a natural-born
Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who, after losing Philippine
citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-born or
naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the
reacquisition thereof. As respondent Cruz was not required by law to go through naturalization proceedings in order to reacquire
his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as
member of the House of Representatives. 146
The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may always revisit a doctrine, a
new rule reversing standing doctrine cannot be retroactively applied. In Morales v. Court of Appeals and Jejomar Erwin S. Binay,
Jr., where we decreed reversed the condonation doctrine, we cautioned that it "should be prospective in application for the
147
reason that judicial decisions applying or interpreting the laws of the Constitution, until reversed, shall form part of the legal
system of the Philippines." This Court also said that "while the future may ultimately uncover a doctrine's error, it should be, as a
general rule, recognized as good law prior to its abandonment. Consequently, the people's reliance thereupon should be
respected." 148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood when she put in the spaces
for "born to" in her application for repatriation under R.A. No. 9225 the names of her adoptive parents, and this misled the BI to
presume that she was a natural-born Filipino. It has been contended that the data required were the names of her biological
parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted. One of the effects of adoption is "to sever all legal
ties between the biological parents and the adoptee, except when the biological parent is the spouse of the adoptee." Under 149
R.A. No. 8552, petitioner was also entitled to an amended birth certificate "attesting to the fact that the adoptee is the child of the
adopter(s)" and which certificate "shall not bear any notation that it is an amended issue." That law also requires that "[a]ll
150
records, books, and papers relating to the adoption cases in the files of the court, the Department [of Social Welfare and
Development], or any other agency or institution participating in the adoption proceedings shall be kept strictly
confidential." The law therefore allows petitioner to state that her adoptive parents were her birth parents as that was what
151
would be stated in her birth certificate anyway. And given the policy of strict confidentiality of adoption records, petitioner was not
obligated to disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case for cancellation of COC,
it resorted to opinionatedness which is, moreover, erroneous. The whole process undertaken by COMELEC is wrapped in grave
abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not petitioner committed false material representation
when she stated in her COC that she has before and until 9 May 2016 been a resident of the Philippines for ten (10) years and
eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the day before the 2016
elections, is true.
The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines before the day of the
elections. Since the forthcoming elections will be held on 9 May 2016, petitioner must have been a resident of the Philippines
prior to 9 May 2016 for ten (10) years. In answer to the requested information of "Period of Residence in the Philippines up to
the day before May 09, 2016," she put in "10 years 11 months" which according to her pleadings in these cases corresponds to
a beginning date of 25 May 2005 when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines. There are three
requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality; 2. an intention to remain there; and 3. an
intention to abandon the old domicile. To successfully effect a change of domicile, one must demonstrate an actual removal or
152
an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and
definite acts which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus
non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. 153
Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile and relocated to the
Philippines for good. These evidence include petitioner's former U.S. passport showing her arrival on 24 May 2005 and her
return to the Philippines every time she travelled abroad; e-mail correspondences starting in March 2005 to September 2006
with a freight company to arrange for the shipment of their household items weighing about 28,000 pounds to the Philippines; e-
mail with the Philippine Bureau of Animal Industry inquiring how to ship their dog to the Philippines; school records of her
children showing enrollment in Philippine schools starting June 2005 and for succeeding years; tax identification card for
petitioner issued on July 2005; titles for condominium and parking slot issued in February 2006 and their corresponding tax
declarations issued in April 2006; receipts dated 23 February 2005 from the Salvation Army in the U.S. acknowledging donation
of items from petitioner's family; March 2006 e-mail to the U.S. Postal Service confirming request for change of address; final
statement from the First American Title Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011
filled-up questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a Philippine resident since
May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of petitioner on 24 May 2005 and that she and her family
stayed with affiant until the condominium was purchased); and Affidavit from petitioner's husband (confirming that the spouses
jointly decided to relocate to the Philippines in 2005 and that he stayed behind in the U.S. only to finish some work and to sell
the family home).
The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in its Resolution in the
Tatad, Contreras and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24 May 2005. At the oral
arguments, COMELEC Commissioner Arthur Lim conceded the presence of the first two requisites, namely, physical presence
and animus manendi, but maintained there was no animus non-revertendi. The COMELEC disregarded the import of all the
154
evidence presented by petitioner on the basis of the position that the earliest date that petitioner could have started residence in
the Philippines was in July 2006 when her application under R.A. No. 9225 was approved by the BI. In this regard, COMELEC
relied on Coquilla v. COMELEC, Japzon v. COMELEC and Caballero v. COMELEC. During the oral arguments, the private
155 156 157
respondents also added Reyes v. COMELEC. Respondents contend that these cases decree that the stay of an alien former
158
Filipino cannot be counted until he/she obtains a permanent resident visa or reacquires Philippine citizenship, a visa-free entry
under a balikbayan stamp being insufficient. Since petitioner was still an American (without any resident visa) until her
reacquisition of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very different from her situation. In Coquilla v.
COMELEC, the only evidence presented was a community tax certificate secured by the candidate and his declaration that he
159
would be running in the elections. Japzon v. COMELEC did not involve a candidate who wanted to count residence prior to his
160
reacquisition of Philippine citizenship. With the Court decreeing that residence is distinct from citizenship, the issue there was
whether the candidate's acts after reacquisition sufficed to establish residence. In Caballero v. COMELEC, the candidate
161
admitted that his place of work was abroad and that he only visited during his frequent vacations. In Reyes v. COMELEC, the 162
candidate was found to be an American citizen who had not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship issue. On residence, the only proof she offered was a
seven-month stint as provincial officer. The COMELEC, quoted with approval by this Court, said that "such fact alone is not
sufficient to prove her one-year residency."
It is obvious that because of the sparse evidence on residence in the four cases cited by the respondents, the Court had no
choice but to hold that residence could be counted only from acquisition of a permanent resident visa or from reacquisition of
Philippine citizenship. In contrast, the evidence of petitioner is overwhelming and taken together leads to no other conclusion
that she decided to permanently abandon her U.S. residence (selling the house, taking the children from U.S. schools, getting
quotes from the freight company, notifying the U.S. Post Office of the abandonment of their address in the U.S., donating excess
items to the Salvation Army, her husband resigning from U.S. employment right after selling the U.S. house) and permanently
relocate to the Philippines and actually re-established her residence here on 24 May 2005 (securing T.I.N, enrolling her children
in Philippine schools, buying property here, constructing a residence here, returning to the Philippines after all trips abroad, her
husband getting employed here). Indeed, coupled with her eventual application to reacquire Philippine citizenship and her
family's actual continuous stay in the Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it was
for good.
In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-free as abalikbayan. A
closer look at R.A. No. 6768 as amended, otherwise known as the "An Act Instituting a Balikbayan Program," shows that there is
no overriding intent to treat balikbayans as temporary visitors who must leave after one year. Included in the law is a former
Filipino who has been naturalized abroad and "comes or returns to the Philippines." The law institutes a balikbayan program
163
"providing the opportunity to avail of the necessary training to enable the balikbayan to become economically self-reliant
members of society upon their return to the country" in line with the government's "reintegration
164
program." Obviously, balikbayans are not ordinary transients.

165
Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into society, it would be an unduly
harsh conclusion to say in absolute terms that the balikbayan must leave after one year. That visa-free period is obviously
granted him to allow him to re-establish his life and reintegrate himself into the community before he attends to the necessary
formal and legal requirements of repatriation. And that is exactly what petitioner did - she reestablished life here by enrolling her
children and buying property while awaiting the return of her husband and then applying for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive and overwhelming, has as
yet been decided by the Court. Petitioner's evidence of residence is unprecedented. There is no judicial precedent that comes
close to the facts of residence of petitioner. There is no indication in Coquilla v. COMELEC, and the other cases cited by the
166
respondents that the Court intended to have its rulings there apply to a situation where the facts are different. Surely, the issue of
residence has been decided particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC ruled that petitioner's claim
of residence of ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC was false because she put six ( 6) years
and six ( 6) months as "period of residence before May 13, 2013" in her 2012 COC for Senator. Thus, according to the
COMELEC, she started being a Philippine resident only in November 2006. In doing so, the COMELEC automatically assumed
as true the statement in the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC as the period of
residence as of the day she submitted that COC in 2012. She said that she reckoned residency from April-May 2006 which was
the period when the U.S. house was sold and her husband returned to the Philippines. In that regard, she was advised by her
lawyers in 2015 that residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May 2013) as inquiring about
residence as of the time she submitted the COC, is bolstered by the change which the COMELEC itself introduced in the 2015
COC which is now "period of residence in the Philippines up to the day before May 09, 2016." The COMELEC would not have
revised the query if it did not acknowledge that the first version was vague.
That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and the return of her husband
is plausible given the evidence that she had returned a year before. Such evidence, to repeat, would include her passport and
the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive admission against
petitioner. It could be given in evidence against her, yes, but it was by no means conclusive. There is precedent after all where a
candidate's mistake as to period of residence made in a COC was overcome by evidence. In Romualdez-Marcos v.
COMELEC, the candidate mistakenly put seven (7) months as her period of residence where the required period was a
167
minimum of one year. We said that "[i]t is the fact of residence, not a statement in a certificate of candidacy which ought to be
decisive in determining whether or not an individual has satisfied the constitutions residency qualification requirement." The
COMELEC ought to have looked at the evidence presented and see if petitioner was telling the truth that she was in the
Philippines from 24 May 2005. Had the COMELEC done its duty, it would have seen that the 2012 COC and the 2015
COC both correctly stated the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically returned here on 24 May
2005 not because it was false, but only because COMELEC took the position that domicile could be established only from
petitioner's repatriation under R.A. No. 9225 in July 2006. However, it does not take away the fact that in reality, petitioner had
returned from the U.S. and was here to stay permanently, on 24 May 2005. When she claimed to have been a resident for ten
(10) years and eleven (11) months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide anything. As already stated, a petition forquo warranto had
been filed against her with the SET as early as August 2015. The event from which the COMELEC pegged the commencement
of residence, petitioner's repatriation in July 2006 under R.A. No. 9225, was an established fact to repeat, for purposes of her
senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner recounted that this was
first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist Alliance. Petitioner appears to
have answered the issue immediately, also in the press. Respondents have not disputed petitioner's evidence on this point.
From that time therefore when Rep. Tiangco discussed it in the media, the stated period of residence in the 2012 COC and the
circumstances that surrounded the statement were already matters of public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto. Her Verified Answer,
which was filed on 1 September 2015, admitted that she made a mistake in the 2012 COC when she put in six ( 6) years and six
( 6) months as she misunderstood the question and could have truthfully indicated a longer period. Her answer in the SET case
was a matter of public record. Therefore, when petitioner accomplished her COC for President on 15 October 2015, she could
not be said to have been attempting to hide her erroneous statement in her 2012 COC for Senator which was expressly
mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012 statement and have it
covered by the 2015 representation. Petitioner, moreover, has on her side this Court's pronouncement that:
Concededly, a candidate's disqualification to run for public office does not necessarily constitute material misrepresentation
which is the sole ground for denying due course to, and for the cancellation of, a COC. Further, as already discussed, the
candidate's misrepresentation in his COC must not only refer to a material fact (eligibility and qualifications for elective office),
but should evince a deliberate intent to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. It
must be made with an intention to deceive the electorate as to one's qualifications to run for public office. 168
In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of evidenced dates all of which
can evince animus manendi to the Philippines and animus non revertedi to the United States of America. The veracity of the
events of coming and staying home was as much as dismissed as inconsequential, the focus having been fixed at the
petitioner's "sworn declaration in her COC for Senator" which the COMELEC said "amounts to a declaration and therefore an
admission that her residence in the Philippines only commence sometime in November 2006"; such that "based on this
declaration, [petitioner] fails to meet the residency requirement for President." This conclusion, as already shown, ignores the
standing jurisprudence that it is the fact of residence, not the statement of the person that determines residence for purposes of
compliance with the constitutional requirement of residency for election as President. It ignores the easily researched matter that
cases on questions of residency have been decided favorably for the candidate on the basis of facts of residence far less in
number, weight and substance than that presented by petitioner. It ignores, above all else, what we consider as a primary
169
reason why petitioner cannot be bound by her declaration in her COC for Senator which declaration was not even considered by
the SET as an issue against her eligibility for Senator. When petitioner made the declaration in her COC for Senator that she has
been a resident for a period of six (6) years and six (6) months counted up to the 13 May 2013 Elections, she naturally had as
reference the residency requirements for election as Senator which was satisfied by her declared years of residence. It was
uncontested during the oral arguments before us that at the time the declaration for Senator was made, petitioner did not have
as yet any intention to vie for the Presidency in 2016 and that the general public was never made aware by petitioner, by word or
action, that she would run for President in 2016. Presidential candidacy has a length-of-residence different from that of a
senatorial candidacy. There are facts of residence other than that which was mentioned in the COC for Senator. Such other facts
of residence have never been proven to be false, and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the USA to finish pending
projects and arrange the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled Brian in Beacon School in
Taguig City in 2005 and Hanna in Assumption College in Makati City in 2005. Anika was enrolled in Learning Connection in San
Juan in 2007, when she was already old enough to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place Condominium in San Juan.
[Petitioner] and her family lived in Unit 7F until the construction of their family home in Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who handled [petitioner's] adoption
in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a new Certificate of Live Birth indicating [petitioner's] new
name and stating that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the family's remaining
household belongings. [Petitioner] returned to the Philippines on 11 March 2006.
1a\^/phi1
In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's abandonment of their
address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on 4 May 2006 and began
working for a Philippine company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they eventually built their family
home. 170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the exclusive ground of
false representation, to consider no other date than that mentioned by petitioner in her COC for Senator.
All put together, in the matter of the citizenship and residence of petitioner for her candidacy as President of the Republic, the
questioned Resolutions of the COMELEC in Division and En Banc are, one and all, deadly diseased with grave abuse of
discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC),
entitledEstrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local Elections
filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139
(DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the petitions and
cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of
President of the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the Second Division
stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the Verified Motion for
Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES. The Resolution dated 11 December
2015 of the Commission First Division is AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES isDECLARED
QUALIFIED to be a candidate for President in the National and Local Elections of 9 May 2016.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
See Concurring Opinion

Chief Justice
See Dissenting Opinion Please see Concurring Opinion

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Please see Separate Dissenting Opinion See Dissenting opinion

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
I join J. Caguioa's Opinion

LUCAS P. BERSAMIN
DIOSDADO M. PERALTA
Associate Justice
Associate Justice
Pls. see Dissenting Opinion

JOSE CATRAL MENDOZA
MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice
(I concur with the Dissenting Opinion of Justice Perlas-Bernabe) See Dissenting Opinion
BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE
See Separate Concurring Opinion See Concurring Opinion

MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA
See Concurring Opinion

ALFREDO BENJAMIN S. CAGUIOA
Associate Justice
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.

Chief Justice
EN BANC
[G.R. No. 86889 : December 4, 1990.]

192 SCRA 51
LUZ FARMS, Petitioner, vs. THE HONORABLE SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, Respondent.
DECISION
PARAS, J.:
This is a petition for prohibition with prayer for restraining order and/or preliminary and permanent injunction against the Honorable
Secretary of the Department of Agrarian Reform for acting without jurisdiction in enforcing the assailed provisions of R.A. No. 6657,
otherwise known as the Comprehensive Agrarian Reform Law of 1988 and in promulgating the Guidelines and Procedure
Implementing Production and Profit Sharing under R.A. No. 6657, insofar as the same apply to herein petitioner, and further from
performing an act in violation of the constitutional rights of the petitioner.
As gathered from the records, the factual background of this case, is as follows:
On June 10, 1988, the President of the Philippines approved R.A. No. 6657, which includes the raising of livestock, poultry and swine
in its coverage (Rollo, p. 80).
On January 2, 1989, the Secretary of Agrarian Reform promulgated the Guidelines and Procedures Implementing Production and
Profit Sharing as embodied in Sections 13 and 32 of R.A. No. 6657 (Rollo, p. 80).
On January 9, 1989, the Secretary of Agrarian Reform promulgated its Rules and Regulations implementing Section 11 of R.A. No.
6657 (Commercial Farms). (Rollo, p. 81).
Luz Farms, petitioner in this case, is a corporation engaged in the livestock and poultry business and together with others in the same
business allegedly stands to be adversely affected by the enforcement of Section 3(b), Section 11, Section 13, Section 16(d) and 17
and Section 32 of R.A. No. 6657 otherwise known as Comprehensive Agrarian Reform Law and of the Guidelines and Procedures
Implementing Production and Profit Sharing under R.A. No. 6657 promulgated on January 2, 1989 and the Rules and Regulations
Implementing Section 11 thereof as promulgated by the DAR on January 9, 1989 (Rollo, pp. 2-36).: rd
Hence, this petition praying that aforesaid laws, guidelines and rules be declared unconstitutional. Meanwhile, it is also prayed that a
writ of preliminary injunction or restraining order be issued enjoining public respondents from enforcing the same, insofar as they
are made to apply to Luz Farms and other livestock and poultry raisers.
This Court in its Resolution dated July 4, 1939 resolved to deny, among others, Luz Farms' prayer for the issuance of a preliminary
injunction in its Manifestation dated May 26, and 31, 1989. (Rollo, p. 98).
Later, however, this Court in its Resolution dated August 24, 1989 resolved to grant said Motion for Reconsideration regarding the
injunctive relief, after the filing and approval by this Court of an injunction bond in the amount of P100,000.00. This Court also gave
due course to the petition and required the parties to file their respective memoranda (Rollo, p. 119).
The petitioner filed its Memorandum on September 6, 1989 (Rollo, pp. 131-168).
On December 22, 1989, the Solicitor General adopted his Comment to the petition as his Memorandum (Rollo, pp. 186-187).
Luz Farms questions the following provisions of R.A. 6657, insofar as they are made to apply to it:
(a) Section 3(b) which includes the "raising of livestock (and poultry)" in the definition of "Agricultural, Agricultural
Enterprise or Agricultural Activity."
(b) Section 11 which defines "commercial farms" as "private agricultural lands devoted to commercial, livestock, poultry and
swine raising . . ."
(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 —
". . . (W)hereby three percent (3%) of the gross sales from the production of such lands are distributed within sixty (60) days
of 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, determine a lower ceiling.
In the event that the individual or entity realizes a profit, an additional ten (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 . . ."
The main issue in this petition is the constitutionality of Sections 3(b), 11, 13 and 32 of R.A. No. 6657 (the Comprehensive Agrarian
Reform Law of 1988), insofar as the said law includes the raising of livestock, poultry and swine in its coverage as well as the
Implementing Rules and Guidelines promulgated in accordance therewith.:-cralaw
The constitutional provision under consideration reads as follows:
ARTICLE XIII
x x x
AGRARIAN AND NATURAL RESOURCES REFORM
Section 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular
farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to
receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all
agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into
account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In
determining retention limits, the State shall respect the rights of small landowners. The State shall further provide
incentives for voluntary land-sharing.
x x x"
Luz Farms contended that it does not seek the nullification of R.A. 6657 in its entirety. In fact, it acknowledges the
correctness of the decision of this Court in the case of the Association of Small Landowners in the Philippines, Inc.
vs. Secretary of Agrarian Reform (G.R. 78742, 14 July 1989) affirming the constitutionality of the Comprehensive Agrarian
Reform Law. It, however, argued that Congress in enacting the said law has transcended the mandate of the Constitution, in
including land devoted to the raising of livestock, poultry and swine in its coverage (Rollo, p. 131). Livestock or poultry
raising is not similar to crop or tree farming. Land is not the primary resource in this undertaking and represents no more
than five percent (5%) of the total investment of commercial livestock and poultry raisers. Indeed, there are many owners of
residential lands all over the country who use available space in their residence for commercial livestock and raising
purposes, under "contract-growing arrangements," whereby processing corporations and other commercial livestock and
poultry raisers (Rollo, p. 10). Lands support the buildings and other amenities attendant to the raising of animals and birds.
The use of land is incidental to but not the principal factor or consideration in productivity in this industry. Including
backyard raisers, about 80% of those in commercial livestock and poultry production occupy five hectares or less. The
remaining 20% are mostly corporate farms (Rollo, p. 11).
On the other hand, the public respondent argued that livestock and poultry raising is embraced in the term "agriculture" and the
inclusion of such enterprise under Section 3(b) of R.A. 6657 is proper. He cited that Webster's International Dictionary, Second
Edition (1954), defines the following words:
"Agriculture — the art or science of cultivating the ground and raising and harvesting crops, often, including also, feeding,
breeding and management of livestock, tillage, husbandry, farming.
It includes farming, horticulture, forestry, dairying, sugarmaking . . .
Livestock — domestic animals used or raised on a farm, especially for profit.
Farm — a plot or tract of land devoted to the raising of domestic or other animals." (Rollo, pp. 82-83).
The petition is impressed with merit.
The question raised is one of constitutional construction. The primary task in constitutional construction is to ascertain and
thereafter assure the realization of the purpose of the framers in the adoption of the Constitution (J.M. Tuazon & Co. vs. Land Tenure
Administration, 31 SCRA 413 [1970]).: rd
Ascertainment of the meaning of the provision of Constitution begins with the language of the document itself. The words used in
the Constitution are to be given their ordinary meaning except where technical terms are employed in which case the significance
thus attached to them prevails (J.M. Tuazon & Co. vs. Land Tenure Administration, 31 SCRA 413 [1970]).
It is generally held that, in construing constitutional provisions which are ambiguous or of doubtful meaning, the courts may consider
the debates in the constitutional convention as throwing light on the intent of the framers of the Constitution. It is true that the
intent of the convention is not controlling by itself, but as its proceeding was preliminary to the adoption by the people of the
Constitution the understanding of the convention as to what was meant by the terms of the constitutional provision which was the
subject of the deliberation, goes a long way toward explaining the understanding of the people when they ratified it (Aquino, Jr. v.
Enrile, 59 SCRA 183 [1974]).
The transcripts of the deliberations of the Constitutional Commission of 1986 on the meaning of the word "agricultural," clearly show
that it was never the intention of the framers of the Constitution to include livestock and poultry industry in the coverage of the
constitutionally-mandated agrarian reform program of the Government.
The Committee adopted the definition of "agricultural land" as defined under Section 166 of R.A. 3844, as laud devoted to any
growth, including but not limited to crop lands, saltbeds, fishponds, idle and abandoned land (Record, CONCOM, August 7, 1986, Vol.
III, p. 11).
The intention of the Committee is to limit the application of the word "agriculture." Commissioner Jamir proposed to insert the word
"ARABLE" to distinguish this kind of agricultural land from such lands as commercial and industrial lands and residential properties
because all of them fall under the general classification of the word "agricultural". This proposal, however, was not considered
because the Committee contemplated that agricultural lands are limited to arable and suitable agricultural lands and therefore, do
not include commercial, industrial and residential lands (Record, CONCOM, August 7, 1986, Vol. III, p. 30).
In the interpellation, then Commissioner Regalado (now a Supreme Court Justice), posed several questions, among others, quoted as
follows:
x x x
"Line 19 refers to genuine reform program founded on the primary right of farmers and farmworkers. I wonder if it means
that leasehold tenancy is thereby proscribed under this provision because it speaks of the primary right of farmers and
farmworkers to own directly or collectively the lands they till. As also mentioned by Commissioner Tadeo, farmworkers
include those who work in piggeries and poultry projects.
I was wondering whether I am wrong in my appreciation that if somebody puts up a piggery or a poultry project and for that
purpose hires farmworkers therein, these farmworkers will automatically have the right to own eventually, directly or
ultimately or collectively, the land on which the piggeries and poultry projects were constructed. (Record, CONCOM, August
2, 1986, p. 618).
x x x
The questions were answered and explained in the statement of then Commissioner Tadeo, quoted as follows:
x x x
"Sa pangalawang katanungan ng Ginoo ay medyo hindi kami nagkaunawaan. Ipinaaalam ko kay Commissioner Regalado na
hindi namin inilagay ang agricultural worker sa kadahilanang kasama rito ang piggery, poultry at livestock workers. Ang
inilagay namin dito ay farm worker kaya hindi kasama ang piggery, poultry at livestock workers (Record, CONCOM, August 2,
1986, Vol. II, p. 621).
It is evident from the foregoing discussion that Section II of R.A. 6657 which includes "private agricultural lands devoted to
commercial livestock, poultry and swine raising" in the definition of "commercial farms" is invalid, to the extent that the aforecited
agro-industrial activities are made to be covered by the agrarian reform program of the State. There is simply no reason to include
livestock and poultry lands in the coverage of agrarian reform. (Rollo, p. 21).
Hence, there is merit in Luz Farms' argument that the requirement in Sections 13 and 32 of R.A. 6657 directing "corporate farms"
which include livestock and poultry raisers to execute and implement "production-sharing plans" (pending final redistribution of their
landholdings) whereby they are called upon to distribute from three percent (3%) of their gross sales and ten percent (10%) of their
net profits to their workers as additional compensation is unreasonable for being confiscatory, and therefore violative of due process
(Rollo, p. 21).:-cralaw
It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the essential
requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a
conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the
proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself (Association of Small
Landowners of the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. 78742; Acuna v. Arroyo, G.R. 79310; Pabico v. Juico, G.R.
79744; Manaay v. Juico, G.R. 79777, 14 July 1989, 175 SCRA 343).
However, despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to declare a
law or act invalid when it is convinced that this must be done. In arriving at this conclusion, its only criterion will be the Constitution
and God as its conscience gives it in the light to probe its meaning and discover its purpose. Personal motives and political
considerations are irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as intimidation, for all the
awesome power of the Congress and Executive, the Court will not hesitate "to make the hammer fall heavily," where the acts of
these departments, or of any official, betray the people's will as expressed in the Constitution (Association of Small Landowners of
the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. 78742; Acuna v. Arroyo, G.R. 79310; Pabico v. Juico, G.R. 79744; Manaay v.
Juico, G.R. 79777, 14 July 1989).
Thus, where the legislature or the executive acts beyond the scope of its constitutional powers, it becomes the duty of the judiciary
to declare what the other branches of the government had assumed to do, as void. This is the essence of judicial power conferred by
the Constitution "(I)n one Supreme Court and in such lower courts as may be established by law" (Art. VIII, Section 1 of the 1935
Constitution; Article X, Section I of the 1973 Constitution and which was adopted as part of the Freedom Constitution, and Article
VIII, Section 1 of the 1987 Constitution) and which power this Court has exercised in many instances (Demetria v. Alba, 148 SCRA 208
[1987]).
PREMISES CONSIDERED, the instant petition is hereby GRANTED. Sections 3(b), 11, 13 and 32 of R.A. No. 6657 insofar as the inclusion
of the raising of livestock, poultry and swine in its coverage as well as the Implementing Rules and Guidelines promulgated in
accordance therewith, are hereby DECLARED null and void for being unconstitutional and the writ of preliminary injunction issued is
hereby MADE permanent.
SO ORDERED.
Fernan (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and Regalado, JJ.,
concur.
Feliciano, J., is on leave.

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Republic of the Philippines

G.R. No. 191002 April 20, 2010

ARTURO M. DE CASTRO, Petitioner,

G.R. No. 191032

JAIME N. SORIANO, Petitioner,

G.R. No. 191057

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

A.M. No. 10-2-5-SC

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE

G.R. No. 191149

JOHN G. PERALTA, Petitioner,

G.R. No. 191342

G.R. No. 191420

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

On March 17, 2010, the Court promulgated its decision, holding:

WHEREFORE, the Court:

Motions for Reconsideration

Tolentino and Inting

6. Valenzuela should not be reversed.

Philippine Bar Association

IBP-Davao del Sur, et al.

3. Section 15, Article VII does not apply to the Judiciary.

The contention has no basis.

Section 13. xxx

Thus, the decision of March 17, 2010 has fittingly observed:

The insinuation is misguided and utterly unfair.

ACCORDINGLY, the motions for reconsideration are denied with finality.

ANTONIO T. CARPIO RENATO C. CORONA

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

ARTURO D. BRION DIOSDADO M. PERALTA

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

JOSE CATRAL MENDOZA

The Lawphil Project - Arellano Law Foundation

CARPIO MORALES, J.:

It is thus imperative to settle the following issues and concerns:

CONCHITA CARPIO MORALES

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

The Motions for Reconsideration

The Basic Requisites / Justiciability

The Disputed Provisions

The Valenzuela Decision

My opinion on the Mendoza petition stands.

G.R. No. L-7557 December 7, 1912

THE UNITED STATES, plaintiff-appellant,

Attorney-General Villamor, for appellant.

I. The facts alleged in the complaint do not constitute a crime.lawphi1.net

2. Ley de Organizacion y Attribuciones de los Tribunales de Guerra:

3. Codigo Penal del Ejercito;

4. Ley de Enjuiciamiento Militar;

5. Delitos de Contrabando y Defraudacion;

9. Ley Reclutamiento y reemplazo del Ejercito;

10. Ley sobre policia;

11. Ley sobre conservacion de los Ferrocarriles;

12. Ley de Caza;

13. Ley sobre Usurpacion;

14. Ley sobre la Falsificacion de Patentes de Invencion;

15. Ley sobre Proteccion a los Menores;

and others which might be mentioned.

It is so ordered, without any finding as to costs.

Arellano, C.J., Torres, Mapa and Johnson, JJ.

TRENT, J., dissenting:

I dissent from both the reasoning and conclusion.